Law School Conference Takes On Pro Bono Issues

Representatives from all six Tennessee law schools gathered in Knoxville today with leaders from the access to justice community for the second Law School Pro Bono & Public Interest Conference, sponsored by the TBA ATJ Committee. About 40 people are taking part in the program, including Supreme Court Justices Janice Holder and Sharon Lee, Access to Justice Commission Chair Buck Lewis, Dave Yoder (LAET ED) and Chay Sengkhounmany (LAMT & C). They are engaging in conversations about the needs, opportunity, challenges and possibilities surrounding pro bono work and related access to justice issues. Lewis, a former TBA president, delivered the keynote address, highlighting the historic collaborations that have produced outstanding developments, while issuing the clear call to action that much work still remains. TBA President Cindy Wyrick will present to the group tomorrow morning.

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.

02 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
05 - 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

JAMES GLEN KIRK v. GLORIA TAYLOR KIRK

Court: TN Court of Appeals

Attorneys:

Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee, for the appellant, James Glen Kirk.
Lara E. Butler, Memphis, Tennessee, for the appellee, Gloria Taylor Kirk.

Judge: FARMER

This appeal involves the trial court’s disposition of Wife’s post-judgment motions and redivision of marital property. Following the trial court’s entry of the final decree of divorce, Wife filed several post-judgment motions seeking relief from the final decree based on Husband’s misrepresentation and concealment of assets prior to the trial court’s division of the marital estate. After an extensive period of discovery, the trial court agreed with Wife and concluded that she was entitled to a new division of marital property and relief from the final decree under either Rule 59 or Rule 60 of the Tennessee Rules of Civil Procedure. The trial court further ordered Husband to pay Wife’s attorney’s fees and expert fees. Husband appeals. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. CORREL MARCELLUS BAKER

Court: TN Court of Criminal Appeals

Attorneys:

Bethel Campbell Smoot, Jr., District Public Defender; and Kevin R. Askren, Assistant District Public Defender, Tullahoma, Tennessee, for the appellant, Correl Marcellus Baker.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Charles Michael Layne, District Attorney General; and Felicia B. Walkup, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Correl Marcellus Baker, was convicted by a Coffee County jury of aggravated robbery and reckless endangerment. The trial court sentenced him to eight years for the aggravated robbery conviction and merged the reckless endangerment conviction into the aggravated robbery conviction. On appeal, appellant argues that the evidence was insufficient to support his conviction for aggravated robbery. Following our review, we affirm the judgment of the trial court but remand for entry of a corrected judgment reflecting that the reckless endangerment conviction was merged into the aggravated robbery conviction.

JACK LAYNE BENSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jack Layne Benson, Nashville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Richard Cawley, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Pro se petitioner, Jack Layne Benson, appeals the post-conviction court’s denial of his second petition for post-conviction relief, which the court treated as a motion to reopen his first petition for post-conviction relief. On appeal, the petitioner asserts that he received ineffective assistance of counsel during the first post-conviction petition, which prevented him from seeking permission to appeal to the Tennessee Supreme Court. He also asserts that the post-conviction court improperly dismissed his petition without the benefit of an evidentiary hearing in violation of his due process rights. Upon review, we affirm the judgment of the post-conviction court.

STATE OF TENNESSEE v. WILLIAM E. BLAKE, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Steve Sams and J. Liddell Kirk (at trial) and J. Liddell Kirk (on appeal), Knoxville, Tennessee, for the appellant, William E. Blake, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

A jury convicted the defendant of second degree murder, aggravated assault, and possession of a handgun after having been previously convicted of a felony drug offense. The defendant was sentenced as a Range II, multiple offender to thirty-five years for the homicide, six years for the aggravated assault, and four years for the weapons possession. The trial court elected to impose the aggravated assault conviction consecutively to the homicide conviction for an aggregate sentence of forty-one years. The defendant appeals, asserting that the evidence was insufficient to support the jury’s finding of the mens rea element of second degree murder; that the trial court erred in allowing evidence of prior felony drug convictions to be introduced as impeachment; and that the trial court improperly imposed a consecutive sentence. After a careful review of the record, we affirm the judgments of the trial court.

STATE OF TENNESSEE v. TIWON ANTWAN HARVELL

Court: TN Court of Criminal Appeals

Attorneys:

Andrew Chad Davidson, Nashville, Tennessee, for the appellant, Tiwon Antwan Harvell.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Megan N. King, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Tiwon Antwan Harvell, was convicted by a Davidson County Criminal Court jury of facilitation of aggravated robbery, a Class C felony, and evading arrest in a motor vehicle, a Class E felony. See T.C.A. §§ 39-11-403, 39-13-402, 39-16-603. The trial court sentenced the Defendant as a Range II, multiple offender to concurrent terms of ten years for facilitation of aggravated robbery and four years for evading arrest. On appeal, he contends that his interview with the police should have been suppressed and that a transcript of the interview should not have been introduced with the video recording. We affirm the judgments of the trial court.

STATE OF TENNESSEE v. MARQUES D. WHEELER

Court: TN Court of Criminal Appeals

Attorneys:

Mark E. Stephens, District Public Defender; and Sarah Heath Olesiuk, Assistant District Public Defender, Knoxville, Tennessee, for the appellant, Marques D. Wheeler.
Robert E. Cooper, Attorney General and Reporter; Michelle Consiglio-Young, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Patricia Cristil, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Marques D. Wheeler, entered a guilty plea to aggravated burglary and received a four-year suspended sentence to be served in community corrections. Following several violations, the trial court revoked appellant from community corrections and resentenced him to six years. Appellant contends that the trial court’s resentencing was improper because the trial court failed to follow the statutory procedure of Tennessee Code Annotated section 40- 35-210. Following our review, we affirm the judgment of the trial court.

TN Supreme Court

TRACY ROSE BAKER v. STATE OF TENNESSEE

Court: TN Supreme Court

Attorneys:

William Caldwell Hancock, Nashville, Tennessee, for the appellant, Tracy Rose Baker.
Robert E. Cooper, Jr., Attorney General & Reporter; William E. Young, Solicitor General; James E. Gaylord, Assistant Attorney General; Clark B. Thornton, Assistant Attorney General; Ray Whitley, District Attorney General, for the appellee, State of Tennessee.

Judge: CLARK

We accepted this appeal to determine whether the petitioner is entitled to seek postconviction relief from a judgment in a civil case finding her in criminal contempt and imposing sanctions, pursuant to Tennessee Code Annotated section 29-9-102 (2012). We hold that a criminal contempt adjudication under Tennessee Code Annotated section 29-9- 102 does not amount to a criminal conviction under the general criminal laws for purposes of the Post-Conviction Procedure Act. We affirm the judgment of the Court of Criminal Appeals affirming the dismissal of the petition.

NEAL LOVLACE ET AL. v. TIMOTHY KEVIN COPLEY ET AL.

Court: TN Supreme Court

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, and Grant C. Glassford, Brentwood, Tennessee, for the Appellants, Clayton O’Neal Lovlace and Norma Jean Lovlace.
Rebecca K. McKelvey and Gregory D. Smith, Nashville, Tennessee, for the Appellees, Timothy Kevin Copley and Beth Copley.

Judge: CLARK

In this grandparent visitation case, we must determine, in the absence of a controlling statutory provision, the appropriate burdens of proof and standards courts should apply where a grandparent and a parent seek to modify and terminate, respectively, court-ordered grandparent visitation. We hold that when a grandparent or a parent initiates a proceeding to modify or terminate court-ordered grandparent visitation, courts should apply the burdens of proof and standards typically applied in parent-vs-parent visitation modification cases. Thus, the burden of proof is upon the grandparent or parent seeking modification or termination to demonstrate by a preponderance of the evidence both that a material change in circumstances has occurred and that the change in circumstances makes the requested modification or termination of grandparent visitation in the child’s best interests. Applying this holding, we conclude that the record in this case supports the trial court’s judgment modifying grandparent visitation. However, we conclude that the trial court failed to make sufficiently specific findings of fact to support its judgment finding the mother in contempt of the order granting grandparent visitation. Accordingly, we reverse the Court of Appeals’ judgment, reinstate that portion of the trial court’s judgment which modified the grandparent visitation arrangement, and vacate those portions of the trial court’s judgment finding the mother in contempt and ordering her to pay a portion of the grandparents’ attorney’s fees.

3Ls Tell it Like it is at The Law Launch Project

"In my previous life, I was a used car salesman," law student Mike Sandler writes. "Now, I’m going to be a lawyer. Depending on whom you ask, I’m either improving my lot in life or taking a step backwards. Either way, I am embarking on a new chapter. Life is messy and law school is no exception." See this and other posts about what the Class of 2014 is up to this week at The Law Launch Project. Read about the venture involving 3Ls from all six of the state's law schools in the Tennessee Bar Journal.


Court Rules on Post-Conviction Relief in Criminal Contempt

The Tennessee Supreme Court ruled today that persons found in criminal contempt under the general contempt statute have not been convicted of a criminal offense and may not obtain post-conviction relief from such criminal contempt findings. In its opinion today, the court upheld the Court of Criminal Appeals decision, noting the distinction between a conviction of a criminal offense and a finding of criminal contempt under the general contempt statute. While both may result in a punishment of jail time, Tennessee law does not define contempt as a criminal offense, or equate a finding of criminal contempt with a conviction of a criminal offense. The opinion concerns the case Tracey Ross Baker v. State of Tennessee.


Soldier Sues After Contracting Fungal Meningitis While Deployed

Joshua Kirkwood, a Montgomery County soldier deployed overseas, filed a 56-page complaint in U.S District Court in Nashville after being stricken with fungal meningitis from a spinal steroid treatment he had undergone in Nashville. Kirkwood has become the third Tennessee victim of the nationwide fungal meningitis outbreak to be identified for the first time this week. Kirkwood had already been deployed in mid-September when someone from the clinic left a message on his voice mail inquiring about how he was doing. “No one told Mr. Kirkwood that he was at risk of contracting fungal meningitis,” according to the complaint. Named as defendants in the suit are the individual owners of the New England Compounding Center, the now-shuttered company blamed by state and federal regulators for shipping fungus-tainted steroids to health facilities across the country, the Saint Thomas Outpatient Neurosurgical Center and the Howell Allen Clinic, part owner of the outpatient center. The Tennessean has the story. 


Legal Sector Adds 2,700 Jobs in August

The legal sector added 2,700 jobs in August, the Wall Steet Journal law blog reports. According to U.S. Labor Department’s latest monthly report, that is the second highest single-month jump in the past year but still well below pre-recession employment levels. Overall, the sector added 6,300 jobs over the past year at an average monthly gain of 500 jobs. 


Judge Higgins Assumes Presiding Judge Post

Judge William E. (Bill) Higgins has been elected by his fellow judges as Presiding Judge over the Davidson County Sessions Court. The presiding judge is responsible for developing the rules for the conduct and administration of the courts as well as conducting meetings of all the judges to discuss problems or issues pertaining to court operation. He will also prepare and submit the budget of the Courts to the Metro Council. “I am honored to be elected”, he said in a press release. “I want to assure that we manage the courts to make sure that we remain accessible as “The Court of First Resort” to serve as the basic foundation for our community’s justice system.”


BP, DOJ Offer Competing Gulf Spill Estimates

BP and the federal government have offered conflicting estimates of how much oil spilled into the Gulf of Mexico after the blowout of the company's Macondo well triggered a deadly explosion, WDEF News 12 reports. In a court filing yesterday, BP urged U.S. District Judge Carl Barbier to use an estimate of 2.45 million barrels in determining how much oil spilled into the Gulf and calculating any Clean Water Act fines. Department of Justice experts estimate around 4.2 millions barrels in the spill. The second phase of the trial to determine how much more money BP and its contractors owe for the disaster resumes Sept. 30.


More States Now have 2014 Ballot Items Affecting the Courts

An updated special edition of Gavel to Gavel again reviews the eight states now confirmed to have 2014 ballot items substantially affecting the courts. The publication notes that Tennessee’s case is interesting in that there is no back up system in place in case the quasi-federal system SJR 2 is rejected by voters and there is no longer merit selection in place.


Protect Your Practice with the Bar Plan

Protecting your practice and your family from an unexpected loss is a priority for many TBA members. The Bar Plan program provides TBA members with the most comprehensive and fairly priced professional liability coverage available. Learn more online.


Yarbro Steps Up Senate Campaign

Attorney Jeff Yarbro appears to be stepping up his campaign as the race in Senate District 21 gets heated. According to the Tennessean political blog, Yarbro sent out a mass email to potential supporters yesterday laying out portions of his platform, asking for donations and urging recipients to get involved in his campaign. A third Democrat, long-time activist Mary Mancini, has been weighing whether to get into the race with Yarbro and Metro Councilman Jason Holleman.


 
 

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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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