Boult Cummings to merge with Birmingham firm

Boult, Cummings, Conners & Berry PLC today announced it is merging with the Birmingham firm of Bradley Arant Rose & White LLP effective Jan. 1. The new firm, Bradley Arant Boult Cummings LLP, will have more than 350 attorneys and seven offices in four states -- Alabama, Mississippi, North Carolina and Tennessee -- as well as Washington, D.C. Boult Cummings began in Nashville in 1910 and has more than 100 attorneys.

Read more in the Nashville Business Journal

TODAY'S OPINIONS
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LUTHER ROPER, SR. v. FIRST PRESBYTERIAN CHURCH ET AL.

Court: TWCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, for the appellant, Jim Farmer, Administrator of the Division of Workers' Compensation of the Tennessee Department of Labor and Workforce Development.

Emil L. "Chip" Storey, Jr., Franklin, Tennessee, for the appellees, First Presbyterian Church and St. Paul Travelers.

Sonya W. Henderson, Murfreesboro, Tennessee, for the appellee, Luther Roper, Sr.

Judge: KURTZ

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for a hearing and a report of findings of fact and conclusions of law. In this case, the trial court found that the employee suffered a 70 percent vocational disability to the body as a whole as the result of an injury arising out of and in the course of employment. Since the employee was over sixty at the time of the injury, the trial court limited his award to 260 weeks pursuant to Tenn. Code Ann. section 50-6-207(4)(A)(I). The trial court concluded that the employer's liability was likewise capped at 260 weeks, and, since the employer had already paid 152 weeks of compensation to the employee for previous injuries, the court allocated 108 weeks of the 260-week award to the employer, and the remaining 152 weeks to the Second Injury Fund. The Second Injury Fund appeals, arguing that the employer's liability is not capped at 260 weeks, but rather remains 400 weeks. We hold that the trial court erred in capping the employer's liability at 260 weeks, rather than 400 weeks. Accordingly, we reverse the judgment of the trial court and remand this issue for entry of an order consistent with this opinion.

http://www.tba2.org/tba_files/TSC_WCP/2008/roperl_120408.pdf


SANDRA L. HILL v. JAMES R. HILL

Court: TCA

Attorneys:

Karla C. Hewitt, Nashville, Tennessee, for the appellant, James R. Hill.

Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Sandra L. Hill.

Judge: COTTRELL

This case involves the dissolution of a twenty-five year marriage that produced nine children. The trial court granted the wife a divorce on the basis of the husband's fault, divided the marital property, and awarded the wife alimony in futuro. The court also found the husband guilty of criminal contempt for failing to timely deposit $85,000 with the clerk and master in accordance with an agreed order. The husband argues on appeal that the trial court's property division was inequitable, that the trial court erroneously considered fault as a basis for the property division, that the alimony award was excessive, and that the contempt conviction violated his constitutional rights. We vacate the contempt conviction. In all other respects we affirm the order of the trial court.

http://www.tba2.org/tba_files/TCA/2008/hills_120408.pdf


LESLIE SMITH v. TENNESSEE EDUCATION LOTTERY CORPORATION

Court: TCA

Attorneys:

Sam F. Cole, Jr. and James H. Kee, Memphis, Tennessee, for the appellant, Leslie Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Laura T. Kidwell, Assistant Attorney General; Gary R. Thompson, Senior Counsel, for the appellee, Tennessee Education Lottery Corporation.

Judge: COTTRELL

The trial court granted the Tennessee Education Lottery Corporation summary judgment on plaintiff's claim that he won the powerball lottery based on numbers aired on a television broadcast. We affirm finding that the applicable rules prohibited selection of a winner based on media dissemination of numbers and, that even if a contract was formed as alleged by the plaintiff, the Lottery did not breach it.

http://www.tba2.org/tba_files/TCA/2008/smithl_120408.pdf


STATE OF TENNESSEE v. DEMOND LAMONT ADKINS

Court: TCCA

Attorneys:

Dumaka Shabazz, Nashville, Tennessee, for the appellant, Demond Lamont Adkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Davidson County Criminal Court jury convicted the defendant, Demond Lamont Adkins, of aggravated assault and carjacking. The trial court imposed concurrent sentences of 15 years at 60 percent for aggravated assault and 22 years at 45 percent for carjacking. In this appeal, the defendant challenges the sufficiency of the evidence, and discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/adkinsl_120408.pdf


STATE OF TENNESSEE v. JARVIS ANTONIO CLEMMONS

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Jarvis Antonio Clemmons.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Jarvis Antonio Clemmons, pleaded guilty in the Davidson County Criminal Court to four counts of aggravated robbery and two counts of attempted aggravated robbery and received a sentence of 33 years incarceration. After the filing of a petition for post-conviction relief and an evidentiary hearing, the post-conviction court granted the petitioner a delayed appeal of his sentence but otherwise denied post-conviction relief. The petitioner now appeals from that judgment. Discerning no error in the sentencing decision of the trial court or in the denial of post-conviction relief, we affirm. We remand the case to the trial court, however, for the entry of corrected judgments reflecting the correct aggregate sentence of 33 years.

http://www.tba2.org/tba_files/TCCA/2008/clemmonsj_120408.pdf


STATE OF TENNESSEE v. ERIC CRUTHIRD

Court: TCCA

Attorneys:

Brett B. Stein (on appeal); and Steve Hallman (at trial), Memphis, Tennessee, for the appellant, Eric Cruthird.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Upon his pleas of guilty, the Defendant, Eric Cruthird, was convicted of three counts of possession of .5 grams or more of cocaine with the intent to sell, each conviction being a Class B felony. Pursuant to his plea agreement, the Defendant received an eight-year sentence for each conviction, with one of said sentences to be served consecutively to the other two, for an effective sentence of sixteen years. In accordance with the plea agreement, the manner of service of the sentence was left to the discretion of the trial court. Following a sentencing hearing, the trial court denied any form of alternative sentencing and ordered that the sentences be served in the Department of Correction. On appeal, the Defendant argues that the trial court erred by denying him probation. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/cruthirde_120408.pdf


STATE OF TENNESSEE v. RICKY LYNN EARLS

Court: TCCA

Attorneys:

Graham Richard, Nashville, Tennessee, (on appeal), and Andy Myric, Fayetteville, Tennessee, (at trial), for the appellant, Ricky Lynn Earls.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General, William Michael McCown, District Attorney General; Michael D. Randles, Assistant District Attorney General; and Weakly Eddie Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WELLES

Following a jury trial, Defendant, Ricky Lynn Earls, was convicted of theft of property valued over $1,000, a Class D felony. The trial court sentenced him as a career offender to twelve years. Defendant appealed on the sole issue of the sufficiency of the convicting evidence, and Defendant's conviction was upheld on appeal. State v. Ricky Lynn Earls, No. M2001-00063-CCA-R3-CD, 2001 WL 1285927 (Tenn. Crim. App., at Nashville, Oct. 25, 2001), perm. to appeal denied (Tenn. Mar. 4, 2002) Defendant subsequently filed for post-conviction relief, alleging ineffective assistance of counsel, which was denied by the post-conviction court. On appeal, this Court remanded the matter to the post-conviction court to determine whether, but for counsel's deficient performance, a motion for new trial would have been filed raising issues in addition to sufficiency of the evidence. State v. Ricky Lynn Earls, No. M2003-01741-CCA-R3-CD, 2005 WL 901144, at *5 (Tenn. Crim. App., at Nashville, Apr. 19, 2005), no perm. to appeal filed. Following a hearing, the post-conviction court granted Defendant a delayed appeal. After a hearing, the trial court denied Defendant's motion for new trial. On appeal, Defendant argues that the trial court (1) erred in not requiring the State to make an election of offenses; (2) erred in its instructions to the jury on his theory of defense; and (3) failed to give limiting instructions to the jury on evidence of other crimes. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/earlsr_120408.pdf


STATE OF TENNESSEE v. DAVID LEE HINTON

Court: TCCA

Attorneys:

Jonathan E. Richardson, Nashville, Tennessee, for the appellant, David Lee Hinton.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Deborah M. Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, David Lee Hinton, appeals from his convictions for attempted first degree murder, a Class A felony, and attempted especially aggravated robbery, a Class B felony. He received consecutive sentences of twenty years as a Range I offender for the attempted first degree murder conviction and ten years as a Range I offender for the attempted especially aggravated robbery conviction, for an effective sentence of thirty years. On appeal, he claims (1) that the trial court should have allowed him to withdraw his guilty pleas, (2) that he was entitled to an additional mental evaluation, and (3) that the sentences are erroneous because they were imposed in violation of his Sixth Amendment right to a jury trial and the court did not make the proper findings for consecutive sentencing. We reverse the trial court's denial of the defendant's motion to withdraw his guilty pleas and remand the case for a hearing on the motion. We also hold that the trial court applied the wrong law in sentencing the defendant and remand for a new sentencing hearing in the event the trial court denies the motion to withdraw the guilty pleas.

http://www.tba2.org/tba_files/TCCA/2008/hintond_120408.pdf


STATE OF TENNESSEE v. MOHAMED IMAN

Court: TCCA

Attorneys:

Jefre S. Goldtrap, Nashville, Tennessee, and Andrew Jackson Dearing, Shelbyville, Tennessee, for the appellant, Mohamed Iman.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Folks, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; Michael D. Randles and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Mohamed Iman, pled guilty in the Bedford County Circuit Court to possession of a Schedule I drug with intent to deliver with the sentence length and manner of service to be determined by the trial court. Prior to being sentenced, the appellant filed a motion to withdraw his guilty plea, which was denied by the trial court. After a sentencing hearing, the trial court sentenced the appellant to ten years in confinement. On appeal, the appellant contends that the trial court erred by (1) referring to the wrong standard in denying his motion to withdraw his guilty plea and accepting an unknowing plea; (2) accepting the plea agreement when it failed to establish venue for the crime; (3) not personally and directly addressing the appellant during the guilty plea hearing; (4) refusing to give the appellant a community corrections sentence; and (5) failing to certify the interpreter. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/imanm_120408.pdf


THOMAS W. OVERBAY v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Thomas W. Overbay, Pro Se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General, and Joe Crumley, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Thomas W. Overbay, was convicted of four counts of aggravated sexual battery and ten counts of rape of a child and sentenced to serve forty-eight years in incarceration. State v. Thomas Wayne Overbay, No. E1999-00840-CCA-R3-CD, 2000 WL 1246617 (Tenn. Crim. App., at Knoxville, Sept. 5, 2000), perm. app. denied, (Tenn. Apr. 24, 2001). Petitioner subsequently filed a petition for writ of habeas corpus in which he alleged that his judgments were void because his sentences were enhanced with factors solely determined by the trial court in violation of Blakely v. Washington, 542 U.S. 296 (2004). We determine that any violation in regard to Blakely would merely render Petitioner's convictions voidable, not void. Therefore, the judgment of the habeas corpus court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/overbayt_120408.pdf


STATE OF TENNESSEE v. JEREMY LANCE PRZYBYSZ

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender, for the appellant, Jeremy Lance Przybysz.

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

Judge: TIPTON

The defendant, Jeremy Lance Przybysz, submitted a best interest guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), to attempt to commit aggravated sexual battery, a Class C felony. The parties agreed to an eight-year sentence as a Range II offender with the manner of service to be determined by the court. At the sentencing hearing, the trial court ordered the defendant to serve eight years in confinement. Claiming the trial court erroneously denied alternative sentencing, the defendant appeals. We affirm the judgment of the circuit court.

http://www.tba2.org/tba_files/TCCA/2008/przybyszj_120408.pdf


STATE OF TENNESSEE v. TIMOTHY RUSSELL

Court: TCCA

Attorneys:

Timothy Russell, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Timothy Russell, pleaded guilty to one count of theft of property valued $10,000 or more but less than $60,000, a Class C felony, and three counts of theft of property valued $1,000 or more but less than $10,000, a Class D felony. He was sentenced to eight years as a Range II offender for the Class C felony and six years as a Range II offender for each Class D felony to be served concurrently but consecutively to the eight-year sentence. The trial court denied probation and imposed incarceration for an effective sentence of fourteen years. Appealing the denial of his motion to withdraw the four guilty pleas, the defendant claims that he misunderstood he would not be guaranteed alternative sentencing and that he should be able to withdraw his guilty pleas to correct manifest injustice. Because the defendant's motion and notice of appeal were untimely, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2008/russellt_120408.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
TBA Member Services

Legal News
MBA honors outstanding lawyers; installs new leaders
The Memphis Bar Association recognized the outstanding work of several of its members and installed new officers today during its annual meeting. The Judge Jerome Turner Lawyer's Lawyer Award was presented to former TBA President Al Harvey of Thomason Hendrix Harvey Johnson & Mitchell PLLC, and Kirk A. Caraway of Allen Summers Simpson Lillie & Gresham PLLC, was honored with the Sam A. Myar, Jr. Memorial Award as a young attorney who has rendered outstanding service. Also at the event, Arthur Quinn of Evans Petree Bogatin PC officially took reign as the 2009 MBA President.
Read more about the event and the MBA's new leadership
Lewis honored with pro bono award from MALS
TBA President George T. "Buck" Lewis III of Baker Donelson Bearman Caldwell & Berkowitz PC, was also honored at the MBA Annual Meeting. Memphis Area Legal Services presented Lewis with the W.J. Michael Cody Pro Bono Attorney of the Year Award. In addition to his personal pro bono work, Lewis this year is leading the TBA in an aggressive campaign to bring access to justice to all Tennesseans through the 4ALL campaign, an effort focusing on education, collaboration, participation and legislation.
Learn more about Lewis and the 4ALL campaign
English-only vote allowed to proceed
Davidson County Chancellor Claudia Bonnyman ruled yesterday she did not have authority to halt metro's Jan. 22 special election. In dismissing a lawsuit brought by a Honduran immigrant, Bonnyman said the issue was not "ripe" given that the proposal is not yet law. Lawyers for the plaintiff said they would file an appeal as soon as possible with the Tennessee Court of Appeals or the Tennessee Supreme Court.
The Tennessean reports
Holder's neighbor attacked outside condo
A friend and neighbor of Tennessee Supreme Court Chief Justice Janice Holder was assaulted, beaten and robbed Sunday evening outside the downtown Memphis condo building where the two live. The attack against Patrick Wrenn, who is also the judge's Karate instructor, is the latest in a string of recent crimes in the area.
WMC-TV has the story
Frost Brown Todd merges with Indiana firm
Frost Brown Todd announced today it is merging with Indianapolis law firm Locke Reynolds, effective Jan. 5. Locke Reynolds, one of the largest law firms in Indiana, will assume the name Frost Brown Todd. The resulting firm will have more than 450 attorneys operating in a five-state region, including an office in Nashville.
Read more about the merger
State gets federal suicide prevention grant
Tennessee has received a $1.5 million federal grant to help prevent suicide and will use the funds to focus primarily on youth in the juvenile justice system. The three-year grant is administered by the Tennessee Lives Count project, which to date has provided suicide prevention training to more than 18,000 volunteers, according to the Tennessean.

Gibson Co. court clerk resigns
Effective Jan. 1, Lois Vaughn Lockhart will resign as clerk and master of the Gibson County Chancery Court. Lockhart has served the court for 26 years, beginning her career as deputy clerk and master. She was appointed to her current position in 1996. Following the announcement, Chancellor George Robert Ellis revealed that his administrative assistant, Shonna Wilson Smith, will take over the job.
Read more in the Jackson Sun
Supreme Court Report
Punitive damages in tobacco case back in court
The court yesterday returned to the issue of whether to set aside a $79.5 million punitive damages award against tobacco giant Philip Morris, which it already has overturned twice. The verdict has again been reinstated by the Oregon Supreme Court, in what is now seen as a fight between the two courts.
The ABA Journal reports
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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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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