Memphis Attorney Honored for Peace, Justice Efforts

Attorney Ruby R. Wharton received the Bishop Carroll T. Dozier Award for Peace and Justice during the Christian Brothers University baccalaureate ceremony. Wharton, who is married to Memphis mayor AC Wharton, is a graduate of Boston College Law School and has worked in Washington D.C. with the Neighborhood Legal Services Program, the Circuit, Chancery and Probate Courts of Shelby County and the federal court system. The Dozier Award was bestowed on Wharton for her commitment to justice for all and community activism. The Dozier Award for Peace and Justice is named for Bishop Carroll T. Dozier, the first Bishop of the Catholic Diocese of Memphis and a leader in race relations, peace and justice. The Commercial Appeal has more. 

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
03 - TN Court of Appeals
05 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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TN Court of Appeals

STATE EX REL. TANYA AINA-LABINJO v. METROPOLITAN NASHVILLE BOARD OF PUBLIC EDUCATION, ET AL.
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

J. Brooks Fox, Nashville, Tennessee, for the Appellant, Metropolitan Nashville Board of Education.

Cecil Dewey Branstetter, Jr., and Michael J. Wall, Nashville, Tennessee, for the Appellee, Tanya Aina-Labinjo.

Judge: DINKINS

Metropolitan Nashville Board of Education appeals the issuance of a writ of mandamus compelling it to hear an appeal of the termination of a non-teaching employee. The Board contends that the chancery court lacked jurisdiction to issue the writ and that state law preempts the right to a hearing granted to employees of the Board under the Metropolitan Charter. We affirm the holding that the chancery court has jurisdiction under Tenn. Code Ann. §§ 16-11-102(a) and 29-25-101 to issue the writ; we vacate the judgment issuing the writ and remand the case for an evidentiary hearing as to whether the Board has developed a policy with respect to the dismissal of employees as required by Tenn. Code Ann. § 49-2- 301(b)(1)(FF) and whether such policy preempts the pertinent provisions of the Metropolitan Charter.


STATE EX REL. HERBERT S. MONCIER, ET AL. v. NANCY S. JONES, ET AL.

Court: TN Court of Appeals

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Janet M. Kleinfelter, Deputy Attorney General, for the Appellees, Nancy S. Jones and unnamed officers of the State of Tennessee.

Judge: DINKINS

Attorney disciplined by the Board of Professional Responsibility filed suit against the Board’s counsel seeking damages for her conduct of the disciplinary proceeding and her removal from the position of Disciplinary Counsel; Attorney appeals the dismissal of his action. Finding no error, we affirm.


HERBERT S. MONCIER v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Janet M. Kleinfelter, Deputy Attorney General; Nashville, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Judge: BENNETT

An attorney disciplined by the Board of Professional Responsibility brought suit against the Board asserting violations of the Open Meetings Act and the Public Records Act. We have concluded that the trial court properly determined that the Open Meetings Act does not apply to the Board. Furthermore, we find no error in the trial court’s determination regarding the attorney’s right to records from certain Board meetings.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. CHARLES CLEVENGER

Court: TN Court of Criminal Appeals

Attorneys:

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Charles Clevenger.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Takisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Charles Clevenger, was convicted in the Knox County Criminal Court of two counts of aggravated robbery, one count of felony evading arrest, three counts of misdemeanor simple possession, three counts of felony simple possession, possession of a legend drug, failure to obey a traffic control device, and violation of the financial responsibility law. After a sentencing hearing, he received an effective forty-year sentence. On appeal, the appellant contends that the evidence is insufficient to support the aggravated robbery convictions, that the trial court erred by ruling he could be impeached with prior convictions if he decided to testify, and that some of his convictions violate double jeopardy protections. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is insufficient to support the appellant’s conviction for aggravated robbery by violence and that the conviction must be reversed. Moreover, we conclude that his convictions for misdemeanor simple possession of oxycodone, felony simple possession of oxycodone, and possession of a legend drug are multiplicitous with his remaining aggravated robbery conviction. Therefore, those three convictions are vacated and the charges are dismissed. The appellant’s remaining convictions and resulting effective forty-year sentence are affirmed.


STATE OF TENNESSEE v. ROY DEMOND DUNCAN

Court: TN Court of Criminal Appeals

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Roy Demond Duncan.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hinson, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Rolf Hazelhurst, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Roy Demond Duncan, was convicted by a jury for attempted second degree murder, aggravated assault, and employment of a firearm during the attempt to commit a dangerous felony. The trial court merged Defendant’s aggravated assault conviction with his attempted second degree murder conviction and sentenced him to ten years, and Defendant received a sentence of ten years in Count 3 to be served consecutively, for a total effective sentence of 20 years. Defendant raises the following issues on appeal: 1) the trial court erred by giving a jury instruction as to Count 3 that unduly influenced the jury to find Defendant guilty of attempted second degree murder; 2) Defendant could not properly be convicted of both attempted second degree murder and employing a firearm during the attempt to commit a dangerous felony; and 3) the trial court erred by not bifurcating the trial to allow the jury to determine if Defendant had a prior felony conviction at the time of the offenses for the purposes of determining Defendant’s sentence. After a careful review of the record, we affirm Defendant’s convictions but remand this case for a jury determination regarding Count 3 as to whether Defendant had a prior felony conviction pursuant to Tenn. Code Ann. § 39-17-1324(f). Upon remand, the trial court shall also enter a corrected judgment in Count 3 to reflect that the offense for which Defendant was convicted in Count 3 is a Class C, rather than a Class D, felony.


STATE OF TENNESSEE v. MICHAEL J. FRYAR

Court: TN Court of Criminal Appeals

Attorneys:

Russell Edwards, Hendersonville, Tennessee, for the appellant, Michael J. Fryar.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Bryna Grant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Michael J. Fryar, appeals a certified question of law from the Sumner County Criminal Court, where he pleaded guilty to aggravated burglary. Because the prosecution of the aggravated burglary charge began before the expiration of the applicable statute of limitations, we affirm the judgment of the trial court.


GERALD SANFORD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Marvin Adams, III (on appeal) and Melody Oliver (at hearing), Memphis, Tennessee, for the appellant, Gerald Sanford.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Brooks Irvine, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Gerald Sanford, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance by not hiring DNA and blood spatter experts to testify at his trial. Following our review, we affirm the denial of the petition.


RICHARD C. TAYLOR v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Richard C. Taylor, Henning, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant Attorney General; Kim Helper, District Attorney General; and Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Richard C. Taylor, pled guilty to first degree premeditated murder and agreed to a life sentence. The Petitioner filed a pro se petition for post-conviction relief making several contentions regarding his competency. The Petitioner then filed a motion requesting a mental evaluation. The trial court held a hearing wherein it determined that the Petitioner had filed his petition beyond the statute of limitations. The trial court further determined, however, that the statute of limitations should be tolled if the Petitioner was, in fact, incompetent. It ordered the Petitioner to provide an affidavit from a treating physician saying he was incompetent at the time he entered his plea. The Petitioner failed to so do, and the trial court summarily dismissed the Petitioner’s petition. On appeal, the Petitioner contends that the trial court erred when it dismissed his petition because he was mentally incompetent to enter his guilty plea. After a thorough review of the record and applicable authorities, we conclude there exists no error in the judgment of the post-conviction court. Accordingly, the judgment of the trial court is affirmed.


TN Attorney General Opinions

Legality of Single Statewide Trust Fund for Pre-Need Funeral Trusts

Court: TN Attorney General Opinions

Date: 2013-06-04

Opinion Number: 42


Emergency Telephone Charges on Wireless Phone Service

Court: TN Attorney General Opinions

Date: 2013-06-05

Opinion Number: 43


Today's News

Davidson Courts Consolidate DUI Cases

Davidson County trial courts approved an innovative plan to transfer first-, second- and third-offense DUIs, as well as all other driver’s license-related charges, to a single court -- Second Circuit Court Judge Amanda McClendon. Previously, these cases were assigned to a criminal court hearing a full docket, plus the DUI cases, with assistance from other criminal court judges. Effective October 15, the plan was praised by Second Circuit Court Judge Amanda McClendon who said. “I look forward to this challenge … Prioritizing the DUIs in one court helps the criminal courts manage their rising case loads and assures all involved in DUI cases a timely conclusion to their case.” The Administrative Office of the Courts has the story. 


Bar Foundation Inducts New Fellows

The Knoxville Bar Foundation recognized 13 members of Knoxville's legal community at its annual dinner last Tuesday. Each year the foundation inducts a new class of fellows, which represents quality men and women practitioners in the community who have distinguished themselves in the practice of law and in service to our community.


Nashville Developers Coveting Courthouse Site

Some Nashville business leaders are getting impatient with progress on a new federal courthouse and would like to see private development of the land already purchased by the government. U.S. Rep. Jim Cooper, who has been pushing for a new federal courthouse on the property since he came to Congress in 2002, says he is “very confident” construction will begin within three years, the Nashville Business Journal reports (subscription required). However, recent reports from the Government Accountability Office cast doubts on the $173 million project, suggesting that Nashville doesn’t have a shortage of courtrooms necessitating a new courthouse. While developers drool over the downtown block, Cooper dismisses a possible sale. “Why would we do that? We’ve got $26 [million] to $30 million in it,” Cooper said. “My job is to protect the taxpayer.”


DUI Ignition Interlocks Required July 1

Gov. Bill Haslam has signed into law legislation requiring all convicted drunk drivers with a blood alcohol concentration of .08 or greater to use ignition interlocks on their vehicles to prevent future offenses. Beginning July 1, when the new law goes into effect, first time drunk driving offenders will be required to use an interlock device for a period of six months as a condition of a restricted license. According to the Chattanoogan, Tennessee becomes the 18th state to pass such legislation.


More DCS Child Death Records Released

Chancellor Carol McCoy released additional records of children who died or nearly died under the supervision of the Department of Children’s Services, the Tennessean reports. The state indicated that the batch of documents released on Friday contains blacked-out information beyond what the court deemed appropriate, citing federal HIPPA protections. In particular, Janet Kleinfelter with the attorney general’s office said that the date of death, provided medical care and potentially other information is protected information. McCoy said the state will turn the next 50 records over on June 26.


School Offers Sampler Program for Those Interested in Law

William & Mary's Law School has launched a new program aimed at helping nonlawyers understand the law and giving a taste of law school to those interested in joining the profession, the ABA Journal reports, Nonlawyers can take a twice weekly online course “Introduction to the U.S Legal System.” Those considering law school can pay a bit more to add an on-campus, three-day program. "This program can help people decide whether law school is right for them,” said Frederic Lederer, principal instructor for the program.


Best of the Bar Honorees Dish On How They Unwind

The Nashville Business Journal’s 2013 Best of the Bar honorees talk to the journal about how they unwind after a long day or week at the office. While many name favorite restaurants for happy hour, several mention their home patio, porch or other favorite outdoor spot.


Obama Defends Phone Surveillance

Taking questions Friday from reporters at a health care event in San Jose, Calif., President Barack Obama vigorously defended sweeping secret surveillance into America’s phone records and foreigners’ Internet use, declaring “we have to make choices as a society,” the Tennessean reports. “It’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience,” Obama said. It was revealed late Wednesday that the National Security Agency (NSA) has been collecting the phone records of hundreds of millions of U.S. phone customers. Another secret program scours the Internet usage of foreign nationals overseas who use any of nine U.S.-based Internet providers such as Microsoft and Google. Glenn Greenwald, the lawyer-turned-blogger who broke the story says he expects the U.S. to react “extremely” to his revelations about the NSA. The ABA Journal reports he has taken security precautions such as using encrypted instant chat and email program.


 
 

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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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