Judge Rules School Referendums Can Go Forward

Judge Samuel Mays ruled today that the Aug. 2 municipal schools referendums in the greater Memphis area may take place, with early voting to begin Friday. The ruling ended a daylong hearing, in which Mays listened to representatives from the Shelby County Commission and the suburbs, which want residents to vote on whether to start separate school districts. According to the Commercial Appeal, Mays is still discussing the possibility of not certifying votes on the referendum until a decision is made on the constitutionality of legislation that allows for the creation of multiple municipal school systems in the county.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
09 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.


TN Court of Appeals

DEPOT PROPERTY, LLC AND TERRY C. COX v. TOWN OF ARLINGTON, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Edward J. McKenney Jr., Memphis, Tennessee for Respondent/Appellant, Town of Arlington, Tennessee.

Terry C. Cox and F. Auston Wortman, III, Collierville, Tennessee for Petitioner/Appellees, Depot Property, LLC and Terry C. Cox.

Judge: KIRBY

This appeal concerns the requirements for a petition for certiorari. This case is on remand from the Tennessee Supreme Court for reconsideration in light of Board of Professional Responsibility v. Cawood, 330 S.W.3d 608 (Tenn. 2010). After reviewing the petition for certiorari in light of the requirements set forth in Cawood, we find that the trial court was without subject matter jurisdiction to hear this case. Therefore, we vacate the trial court’s decision and dismiss the case.


ROSHEAY RAGLAND and wife, THERESA RAGLAND v. OAKLAND DEPOSIT BANK

Court: TN Court of Appeals

Attorneys:

Venita Marie Martin, Memphis, Tennessee, for the appellants, Rosheay Ragland and wife, Theresa Ragland.

G. Gregory Voehringer, Memphis, Tennessee, for the appellee, Oakland Deposit Bank.

Judge: STAFFORD

This appeal involves the foreclosure of real property owned by the Appellants. The Appellants filed a request for a temporary and permanent injunction, alleging that the Appellee bank that held the mortgage on the property had violated the Appellants’ rights. After the Appellants testified at the temporary injunction hearing, the Bank moved for involuntary dismissal and the trial court dismissed the case. Both parties filed post-trial motions regarding possession of the subject property. The appellate record contains no record that either of these motions was adjudicated by the trial court. Accordingly, the judgment of the trial court is not final, and this Court lacks subject matter jurisdiction over this appeal. Dismissed and remanded.


IN THE MATTER OF ROBERT B.

Court: TN Court of Appeals

Attorneys:

J. Neil Thompson, Huntingdon, Tennessee for Respondent/Appellant D.B.

Robert E. Cooper, Jr., Attorney General and Marcie E. Greene, Assistant Attorney General Nashville, Tennessee for Petitioner/Appellee State of Tennessee Department of Children’s Services.

Judge: KIRBY

This appeal concerns the termination of a father’s parental rights with respect to his son. The father was incarcerated for sexually abusing his stepdaughters, the son’s half sisters, while all resided in the same home. The trial court also found that the father had physically abused the son. The trial court found that all of this conduct constituted severe abuse pursuant to Tennessee Code Annotated §§ 36-1-113(g)(4) and 37-1-102(b)(23)(C). It found that termination of the father’s parental rights was in the son’s best interest. The trial court entered an order terminating the father’s parental rights; the order was entered over thirty days after the termination hearing. The father appeals the tardiness of the termination order and the best interest finding. We affirm.


SMITH COUNTY PLANNING COMMISSION v. CARVER TRUCKING, INC.

Court: TN Court of Appeals

Attorneys:

Timothy A. Davis, Lebanon, Tennessee for Defendant/Appellant Carver Trucking, Inc.

Jack O. Bellar and Jamie D. Winkler, Carthage, Tennessee for Plaintiff/Appellee Smith County Planning Commission.

Judge: KIRBY

This appeal involves a contempt finding against a closely-held corporation. The defendant closely-held corporation owned real property located on a highway. The trial court held that the corporation had violated zoning ordinances by maintaining and operating a trucking terminal and salvage yard in an unauthorized area. The trial court enjoined the corporation from maintaining a trucking terminal at this location and directed the corporation to remove junk from the property. The corporation then leased the property to a business associate who continued to operate a trucking terminal on the property and failed to remove the junk. A contempt petition was filed against the defendant corporation. The trial court determined that the defendant corporation had violated the injunction and was in contempt of court. The defendant corporation now appeals, arguing that the corporation cannot be held in contempt for the actions of the tenant on the property. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. DEWAYNE COLLIER a/k/a PATRICK COLLIER

Court: TN Court of Criminal Appeals

Attorneys:

Phyllis Aluko, Assistant Public Defender, for the appellant, Dewayne Collier a/k/a Patrick Collier.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Damon Griffin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Following a Shelby County jury trial, the Defendant, DeWayne Collier, was convicted of aggravated statutory rape. At the time of the crime, the Defendant was forty-two years old and the victim was fourteen years old. The trial court sentenced the Defendant to four years as a Range II, multiple offender. On appeal, the Defendant argues that the trial court erred in denying his motion for judgment of acquittal and that the evidence was insufficient to support his conviction because the fourteen-year-old victim was an accomplice and there was not sufficient corroborating evidence. After a thorough review of the record on appeal, we conclude that the victim is legally an accomplice regardless of the fact that she cannot be indicted for her own statutory rape. However, we also determine that there is additional evidence to adequately corroborate her testimony. Therefore, we conclude that the evidence is sufficient to support the Defendant’s conviction. We affirm the judgment of the trial court.


ROBERT DONTERIOUS CONNER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for appellant, Robert Donterious Conner.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Robert D. Conner, appeals the post-conviction court’s dismissal of his petition for post-conviction relief following an evidentiary hearing. Petitioner attacks his convictions for second degree murder and aggravated assault following a jury trial in which he was charged with first degree murder and aggravated assault. The sole ground for relief argued on appeal is that Petitioner was denied effective assistance of counsel because trial counsel failed to file a written motion pre-trial for the severance of offenses, since the charges involved two different victims and occurred on different days. After a thorough review of the parties’ briefs and the record, we affirm the judgment of the post-conviction court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.


STATE OF TENNESSEE v. MONROE JAMES DODSON, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Monroe James Dodson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Monroe James Dodson, Jr. and his co-defendants were indicted by the Davidson County Grand Jury for three counts of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of possession of a weapon during the commission of a felony. Appellant pled guilty to one count of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of employing a weapon during a felony with prior convictions. The trial court held a separate sentencing hearing and sentenced Appellant to an effective sentence of eighty-two years. Appellant appeals both the length of his sentences and the imposition of consecutive sentences. After a review of the record on appeal, we have determined that the enhancement factors used by the trial court were supported by the record and that, therefore, the length of the sentences is affirmed. We also conclude that the record on appeal supports the trial court’s conclusion that Appellant is a dangerous offender and that consecutive sentences are warranted in his case. For these reasons, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. ROBERT FANN, JR.

Court: TN Court of Criminal Appeals

Attorneys:

B. Jeffery Harmon, District Public Defender, and Philip A. Condra, Assistant Public Defender, for the appellant, Robert Fann, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

After a trial by jury, the defendant was found guilty of rape, a Class B felony, and incest, a Class C felony. He was sentenced to a total effective sentence of ten years. On appeal, the defendant raises numerous challenges to his convictions and sentences. The defendant claims that the evidence is insufficient to support his convictions. However, his argument is based on alleged inconsistencies in the evidence, and conflicts in the evidence provide no basis for reversing a defendant’s convictions. The defendant claims that the trial court erred by admitting the testimony of a police officer concerning statements that the defendant made to his wife in the officer’s presence because these statements were protected by the martial privilege. However, we conclude that the statements were not privileged because the defendant had no reasonable expectation that they would remain confidential. The defendant claims that these same statements should also have been excluded because the officer did not give the defendant his Miranda warnings. However, this claim must fail because the defendant was neither in custody nor being interrogated by the police at the time the statements were made. The defendant claims that the trial court erred by admitting an exhibit containing a nurse’s handwritten notes repeating certain statements made by the victim concerning the cause of her injuries, because these statements were inadmissible under the hearsay rule. However, the trial court properly admitted the statements under the excited utterance exception to that rule. The defendant claims that the trial court erred by giving a pattern rape instruction that included references to “fellatio” and “cunnilingus” because there was no evidence presented at trial establishing that the defendant had committed either act. However, we conclude that the instruction at issue fully and accurately stated the law. The defendant argues that the trial court improperly admitted certain exhibits because no chain of custody had been established, but this argument has been waived. The defendant challenges his ten-year effective sentence as excessive, but after thorough review we can discern no error in the defendant’s sentencing. Finally, the defendant claims that the 2005 Sentencing Act is unconstitutional under Blakely v. Washington, 542 U.S. 296, 302 (2005), but we conclude that binding precedent firmly establishes that the 2005 Sentencing Act complies with Blakely. Consequently, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. CHARLES MIDDLEBROOK

Court: TN Court of Criminal Appeals

Attorneys:

Thomas F. diLustro, Knoxville, Tennessee, for the appellant, Charles Middlebrook.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jason Hunnicutt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Charles Middlebrook, was indicted in two separate cases for one count of theft of property over $1,000, one count of theft of property over $500, and three counts of assault. After negotiation with the State, Appellant pled guilty to one count of theft of property over $1,000 and one count of simple assault. The remaining counts were dismissed. Appellant was sentenced to eight years as a Range III, persistent offender for the conviction for theft of property and eleven months and twenty-nine days for the conviction for assault. After a sentencing hearing, the trial court denied alternative sentencing. Appellant appeals, arguing that the trial court improperly denied an alternative sentence. Because the record supports the trial court’s finding that Appellant had a lengthy prior record and repeated unwillingness to comply with a sentence involving release in the community, we affirm the trial court’s denial of an alternative sentence.


STATE OF TENNESSEE v. JEFFREY WADE OSBORNE

Court: TN Court of Criminal Appeals

Attorneys:

William P. Holloway, Franklin, Tennessee, for the appellant, Jeffrey Wade Osborne.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kate Yeager, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jeffrey Osborne, was convicted by a Williamson County jury of burglary and theft of property valued up to $500. Appellant’s sole argument on appeal is that the evidence presented at trial was insufficient to support his conviction of burglary because it failed to establish that Appellant lacked effective consent to enter the building that was the basis of the burglary charge. After a thorough review of the record on appeal, we find that a rational trier of fact could conclude that Appellant lacked effective consent. Therefore, we affirm the judgments of the trial court.


WILLIE PERRY, JR. v. STATE OF TENNESSEE
With Concurring Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Willie Perry, Jr.

Robert E. Cooper, Attorney General and Reporter; James G. Woodall, District Attorney General; Sophia S. Lee, Senior Counsel; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Willie Perry, Jr., pled guilty to two counts of theft of property valued $1,000 or more but less than $10,000, each a Class D felony, and was sentenced to serve, in prison, two twelve-year sentences to run concurrently with each other. The petitioner brought this post-conviction petition, seeking relief on the basis that his trial counsel failed to investigate and advise him regarding the possibility that the property was valued at less than $1,000. The post-conviction trial court denied the claim, and the petitioner appeals the denial of relief and the trial court’s refusal to admit certain evidence regarding the property’s value. After a thorough review of the record, we affirm.


STATE OF TENNESSEE v. JOSHUA A. RANDOLPH

Court: TN Court of Criminal Appeals

Attorneys:

Connie Reguli and Megan Woodson Miller, Brentwood, Tennessee, for the appellant, Joshua A. Randolph.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and Tara Wyllie, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Joshua A. Randolph, was indicted by the Sumner County Grand Jury in March of 2010 for aggravated assault and domestic assault after an altercation took place at the home occupied by his estranged wife and children. Appellant was convicted by a jury of the lesser included offense of assault. He was acquitted of domestic assault. The trial court sentenced Appellant to eleven months and twenty-nine days of probation. After the denial of a motion for new trial, Appellant filed a notice of appeal. On appeal he insists that the trial court erred by failing to instruct the jury on self-defense. After a review of the record, we conclude, as the State concedes, that the trial court did err in failing to instruct the jury on self-defense where the evidence fairly raised a contested issue of fact, i.e., whether Appellant was in the home with consent of the lawful resident when the altercation took place, and therefore entitled to raise self-defense because he claimed he was attacked. As a result, the jury instructions failed to inform the jury of the applicable law. Consequently, Appellant’s conviction is reversed and remanded for a new trial.


STATE OF TENNESSEE v. WESLEY TRENT REAVES

Court: TN Court of Criminal Appeals

Attorneys:

R.H. Stovall, Jr., Assistant Public Defender, Pulaski, Tennessee, for the appellant, Wesley Trent Reaves.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Mike Bottoms, District Attorney General, and Doug Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

A Wayne County jury convicted Appellant, Wesley Trent Reaves, of theft of property worth more than $1,000 but less than $10,000. The trial court sentenced Appellant to eight years as a Range II, multiple offender. On appeal, Appellant argues that the evidence was insufficient to support his conviction because the State’s witnesses were mistaken or lied during their testimony at trial and that the trial court erred in imposing an eight-year sentence because it failed to apply a mitigating factor. We conclude that the evidence was sufficient to support the conviction and that the trier of fact is the sole arbiter of the credibility of the witnesses. We also determine that although the trial court erred in failing to apply the mitigating factor in question, Appellant’s criminal history more than supports the imposition of an eight-year sentence. Therefore, we affirm the judgment of the trial court.


Departures Continue at Miller & Martin

Three additional attorneys have left the Nashville office of Miller & Martin following a large exodus last month. Larry Bridgesmith, founder of the Institute of Conflict Management at Lipscomb University and adjunct professor at Vanderbilt Law School, has joined Bone McAllester Norton as of counsel in the area of labor and employment.  Ken Bryant, previously the leader of the transportation practice group at Miller & Martin, has joined Stites & Harbison. And, Junaid Odubeko, former legal counsel to then Gov. Phil Bredesen, has joined Butler Snow O’Mara Stevens & Cannada. Butler Snow also announced it has hired Michael Sheridan, the former general counsel of HR services company Ceridian. The additions give Butler Snow a presence of 41 lawyers in Nashville.


Prankster Targets Would-Be Jurors

Hamilton County residents reportedly are receiving a “prank” phone message indicating they have failed to report for jury duty and will be fined $500 and serve a 30-day prison sentence. Victims are being contacted via text and/or email and told to call a number to receive a message. The phone numbers are (704) 319-7254 and (704) 319-7242. Officials say this prank is happening all over the country and that citizens should not to call the numbers. While the punishment for failing to report for jury duty in Hamilton County is accurate, officials says they would never text or email that information. Instead, no-shows would receive a letter or a subpoena with a court date. Read more on Chattanoogan.com


Defendant Awaiting Re-trial Files Speedy Trial Motion

George Thomas, one of four suspects in the January 2007 slayings of Channon Christian and Christopher Newsom, has filed a motion invoking his right to a speedy trial in a move designed to prevent the Knox County District Attorney from challenging — for a second time — Special Judge Jon Kerry Blackwood's decision to grant Thomas a new trial. Thomas' new trial had been set to begin in October, however, prosecutors have been trying to block it. The News Sentinel has the latest in the case.


National Firm Recruits King & Ballow Lawyers

The national labor law firm of FordHarrison, which moved into Middle Tennessee last year, has recruited two attorneys, including a partner, from King & Ballow. Making the jump to the new firm are Mark Stamelos, who has been with King & Ballow for almost 12 years, and associate Josh Sudbury. The additions bring to seven the number of lawyers in FordHarrison’s Nashville office, according to the Nashville Post.


NBA Forms Veterans Committee

The Nashville Bar Association (NBA) has formed a new Veterans Committee and named Bass Berry & Sims lawyer Robert Echols as chair of the group. The NBA says the committee “offers a great opportunity to meet new veteran friends in the bar, share experiences and…serve other less fortunate veterans in [the] community.” It kicked off its activities recently with a reception at Echol's firm. Learn more online or contact Vicki Shoulders at (615) 242-9272 or vicki.shoulders@nashvillebar.org.


Memphis Pro Bono Events in the News

Lawyers from AutoZone, Bass, Berry & Sims and Memphis Area Legal Services on Tuesday donated their time to help seniors and low-income residents draft wills, powers of attorney and other legal documents. It was the fourth year the groups have joined efforts to serve Memphis-area senior citizens. Read about it in the Commercial Appeal. Today, the Memphis Bar Association’s (MBA) Access to Justice Committee provided legal advice at the Project Homeless Connect event at the Memphis Cook Convention Center. The event was organized by Linda Warren Seely with Memphis Area Legal Services and MBA Executive Director Anne Fritz.


Wrong 'Scruggs' Cited in News Story

A news item in yesterday's issue of TBA Today mistakenly identified the Mississippi lawyer who petitioned a federal appeals court this week to vacate his guilty plea in a judicial bribery case. It was Zach Scruggs, son of Richard "Dickie" Scruggs, who filed the motion. The younger Scruggs pleaded guilty to failure to report a crime in the same case involving his father. He served a 14-month prison sentence, paid a $250,000 fine and lost his law license. The Commercial Appeal has the story.


Disciplinary Charges Filed Against Prosecutor

The Tennessee Board of Professional Responsibility has filed a petition for discipline against Paul Rush, an assistant district attorney in the 10th Judicial District, which covers Bradley, McMinn, Polk and Monroe counties. The petition states that Rush knew a key witness in Cleveland's 1999 Valentine's Day triple slaying was going to be prosecuted on check fraud charges, but didn't tell defense attorneys until one or two days before the trial began. His failure to share the information, according to the petition, triggered a mistrial and allowed the murder defendant to walk free. The Times Free Press reports


Pro Bono Events Planned Across State

Legal aid groups and bar associations have a number of pro bono activities planned across the state over the next several weeks. Memphis Area Legal Services launched its second of three Justice for All Online Auctions this week to raise money for its pro bono programs. The site will stay online through July 31. Contact Mary Lynes at (901) 271-0660 or mlynes@memphisbar.org for more information or to donate auction items. 

On Saturday, the Memphis Bar Association's Access to Justice Committee will host a free legal clinic from 10 a.m. to noon at the city’s main library. To get involved contact Linda Warren Seely at (901) 523-8822 or lseely@malsi.org.

Next Wednesday, the Legal Aid Society of Middle Tennessee & the Cumberlands will work with the Nashville Public Defender's Office to staff a free legal clinic for veterans at Operation Stand Down of Nashville. Any veteran can attend the clinic but should call (615) 248-1981 to make an appointment.

Finally, on July 26, Legal Aid of East Tennessee will hold its annual Pro Bono Celebration and Silent Auction at The Square Room, 4 Market Square. The event will be emceed by Tennessee Supreme Court Justices Sharon G. Lee and Gary R. Wade. A reception and silent auction will begin at 5:30 p.m. Awards will be presented at 6:30 p.m.


 
 

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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