Tuesday, February 24, 2009
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Smith named dean of Memphis law school

Dr. Kevin Smith has been appointed dean at the University of Memphis Cecil C. Humphreys School of Law, the Memphis Daily News reports. Smith had been serving as the interim dean since October 2007 and was one of four candidates being considered for the position. "I'm delighted to have the opportunity to work with faculty, staff, students, University officials, alumni and friends of the law school at this transformational time in the law school's history," Smith told The Daily News.

Read more about Smith's background and experience
TODAY'S OPINIONS
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DONNA MICHELE LOCASTRO CORBIN v. RICHARD TODD CORBIN

Court: TCA

Attorneys:

Richard F. Vaughn, Collierville, TN, for Appellant

William Bryan Penn, Memphis, TN, for Appellee

Judge: HIGHERS

This appeal involves retroactive child support. The parties were divorced in 1996 and submitted a marital dissolution agreement that was approved by the trial court. In 1999, the parties submitted a consent order modifying the marital dissolution agreement to provide that the father would not pay child support, but he would be responsible for providing health insurance coverage and paying for one-half of uncovered medical, dental, orthodontic, and optical expenses. The consent order was approved by the trial court. In 2006, the mother sought to have the consent order set aside on the basis that it was void as against public policy, and she sought an award of retroactive child support to the date of the 1999 consent order. The trial court granted retroactive child support only to the date of the mother's petition seeking such support. Mother appeals, claiming that retroactive child support should be awarded to the date of the 1999 consent order. We affirm.

http://www.tba2.org/tba_files/TCA/2009/corbind_022409.pdf
John Broadbent Cundiff v. Callie Ginn Cundiff

Court: TCA

Attorneys:

Cynthia M. Odle and Ashlie M. Weeks, Nashville, Tennessee, for the appellee, Callie Ginn Cundiff.

Gregory Dye Smith and Rebecca Kathryn McKelvey, Nashville, Tennessee, for the appellant, John Broadbent Cundiff.

Judge: DINKINS

Father appeals order allowing relocation of child after Mother secured new employment in Hopkinsville, Kentucky, alleging that the trial court erroneously applied Tenn. Code Ann. section 36-3-108. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/cundiffj_022409.pdf
GRAY'S DISPOSAL CO., INC. ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY, TN ET AL.

Court: TCA

Attorneys:

Thurman T. McLean, Jr., Nashville, Tennessee, for the appellants, Gray's Disposal Co., Inc., Ray Webster d/b/a Hermitage Hills Sanitary Co., and Ray Webster.

J. Brooks Fox, Margaret Overton Darby, Lora Barkenbus Fox, and Elizabeth A. Sanders, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville, Davidson County, Tennessee.

Judge: BENNETT

This is the second appeal in consolidated cases concerning tipping fees charged for residential waste disposal. Privately-owned garbage haulers ("Appellants") originally sued metropolitan government ("Metro") challenging the constitutionality of the tipping fees; Metro filed a separate action against Appellants for past-due tipping fees. The trial court granted summary judgment in favor of Metro and Appellants appealed. On December 31, 2002, this Court ruled in Metro's favor and remanded the matter instructing the trial court to calculate the amount of tipping fees Appellants owed Metro for the period after November 5, 1997. Pending a hearing on remand, Appellants sought to recover the amount of tipping fees paid Metro before November 5, 1997, by filing a separate action in the same court. The trial court dismissed Appellants' action based on the doctrines of res judicata and collateral estoppel. The final hearing on remand was held June 19, 2007, more than four years after this Court's decision in the first appeal. In April 2007, just prior to the hearing, the Supreme Court of the United States issued an opinion, United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007), which Metro alleged abrogated our earlier decision in 2002. Abiding by our limited instructions for remand, the trial court declined to consider United Haulers or Appellants' request for a set-off of fees paid prior to November 5, 1997 and determined the amounts owed Metro. Metro's motion to alter or amend the judgment was denied. Both parties appeal. We have determined that Appellants' second attempt to recover the tipping fees paid prior to November 5, 1997, was barred by the doctrines of res judicata and collateral estoppel and affirm the trial court's decision with respect to United Haulers.

http://www.tba2.org/tba_files/TCA/2009/graysdisposal_022409.pdf
RONNIE GALE MARTIN v. DEBORAH ELAINE KENT MARTIN

Court: TCA

Attorneys:

J. Thomas Caldwell, Ripley, TN, for Appellant

Julie D. Byrd, Memphis, TN, for Appellee

Judge: HIGHERS

This is the second time these parties have been before this court on matters relating to their divorce. In the first appeal, we rejected the husband's argument that he lacked the financial resources to pay the wife in cash for her share of the marital estate. However, we vacated the trial court's award of alimony requiring the husband to pay the wife's health insurance premiums because there was insufficient proof presented regarding the issue at trial. On remand, the trial court allowed the husband to sell various properties in order to pay the wife for her share of the marital estate, but the court refused to require the wife to pay half the income taxes associated with the sales or the real estate taxes on the properties. The trial court found that the husband had the ability to pay the wife's health insurance premiums, and the wife did not, and it ordered the husband to pay such premiums. The trial court also ordered the husband to pay wife post- judgment interest on the original cash award of marital property. In addition, the court found the husband in contempt and ordered him to pay the wife's attorney's fees incurred on remand. The husband appeals. We affirm as modified and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/martinr_022409.pdf
COREY ADAMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paula Ogle Blair, Nashville, Tennessee, for the appellant, Corey Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Corey Adams, appeals the denial of his petition for post-conviction relief from his three convictions for facilitation of especially aggravated kidnapping. He argues that he received ineffective assistance of counsel, the State committed prosecutorial misconduct by its use of false testimony, and he was denied his right to trial by jury by the trial court's application of enhancement factors to his sentence. Following our review, we affirm the judgment of the post-conviction court denying the petition.

http://www.tba2.org/tba_files/TCCA/2009/adamsc_022409.pdf
STATE OF TENNESSEE v. TIWON ANTON HARVELL

Court: TCCA

Attorneys:

Michael Colavecchio, Nashville, Tennessee, for the appellant, Tiwon Anton Harvell.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Tiwon Anton Harvell, was convicted of one count of attempted second degree murder and one count of unlawful possession of a weapon. He was sentenced as a Range I, Standard offender to fourteen years in the Department of Correction. In this direct appeal, he contends that (1) the State produced evidence insufficient to convict him of either charge beyond a reasonable doubt; and (2) the trial court erred in sentencing him. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/harvellt_022409.pdf
THOMAS MICHAEL KESTERSON V. TOMMY MILLS, WARDEN

Court: TCCA

Attorneys:

Thomas Michael Kesterson, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Thomas Michael Kesterson, filed a petition for habeas corpus relief in the Lake County Circuit Court alleging that his conviction for incest is void because it includes an illegal sentence. The habeas court denied the petition finding that the petitioner was properly sentenced. Upon review of the record and the parties' briefs, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2009/kestersont_022409.pdf
STATE OF TENNESSEE v. TRAVIS LESTER

Court: TCCA

Attorneys:

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Travis Lester.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; William L. Gibbons, District Attorney General; and Theresa McCusker and Damon Griffin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Travis Lester, was convicted of reckless homicide, a Class D felony, and sentenced as a Range II, multiple offender to seven years in the Department of Correction. On appeal, he argues that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/lestert_022409.pdf
STATE OF TENNESSEE v. JAMIE TENERIO RICE

Court: TCCA

Attorneys:

Michael Anderson, Assistant Public Defender, Gallatin, Tennessee, for the appellant, Jamie Tenerio Rice.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and Lytle Anthony James, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Jamie Tenerio Rice, appeals the sentencing decision of the Sumner County Criminal Court. Following his guilty plea to sale of .5 grams or more of cocaine, a Class B felony, the trial court imposed a nine-year sentence as a Range I, standard offender to be served in the Department of Correction. On appeal, the Defendant asserts that his sentence is excessive and that the trial court erred in denying alternative sentencing. After a review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/ricej_022409.pdf
STATE OF TENNESSEE v. BARRY RONNELL SMELLEY

Court: TCCA

Attorneys:

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Barry Ronnell Smelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court Jury convicted the appellant, Barry Ronnell Smelly, of attempted first degree murder, especially aggravated burglary, and two counts of reckless endangerment with a deadly weapon. The trial court sentenced him to twenty-three years for the attempted murder conviction, fifteen years for the especially aggravated burglary conviction, and three years for each of the reckless endangerment with a deadly weapon convictions. The trial court ordered that he serve the sentences for attempted first degree murder and reckless endangerment with a deadly weapon consecutively to each other and concurrently with the sentence for especially aggravated burglary for an effective sentence of twenty-nine years. The trial court also ordered that the sentences be served consecutively to those the appellant received in a prior case. On appeal, the appellant challenges the sufficiency of the evidence and contends that the trial court sentenced him in violation of the dictates of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). Upon review, we affirm the appellant's convictions and sentences.

http://www.tba2.org/tba_files/TCCA/2009/smelleyb_022409.pdf
TODAY'S NEWS
Legal News
Legislative News
Supreme Court Report
TennBarU CLE
TBA Member Services
Legal News
Streaming video of Memphis trial viewed by thousands
Trial watchers were hooked recently when a television station streamed a Memphis murder trial live on the web, and thousands followed a real-time blog of the proceedings. The judge not only allowed the coverage of the Noura Jackson murder trial, but welcomed it. "It's like turning up a rock over and looking at the underside and letting the light shine," Judge Chris Craft said. "It tends to be a cleaner environment." Craft added the increasing coverage puts a burden of increased accuracy on the media. "Jurors will be in here already knowing things about the case that are wrong -- that aren't true -- and we have to make sure that they unlearn that." Other media outlets covered the trial through a blog while another used Twitter -- a social networking and micro-blogging website.
Learn more from WMCTV.com
Live trial coverage is getting to be more accepted. Another judge -- this one in Wichita, Kan. -- will allow a reporter to cover a trial of six accused gang members using Twitter.
ABAJournal.com reports
Bunning backtracks on Ginsburg prediction
U.S. Sen. Jim Bunning now has apologized for saying in a speech that U.S. Supreme Court Justice Ruth Bader Ginsburg could die in less than a year from pancreatic cancer.
NewsChannel 5 carried this AP story
'Lions of the bar' features Nashville's Jim Neal
The March issue of the ABA Journal features a breed of lawyer "on the verge of extinction," the so-called lions of the trial bar. No list like this would be complete without Nashville lawyer James F. Neal -- read about him and other famous trial lawyers Bernie Nussbaum, Joe Jamail, Fred Bartlit, Bobby Lee Cook, James Brosnahan and Richard "Racehorse" Haynes. In the story, Neal tells of his time at Vanderbilt, saying he wasn't much of a student. "I scheduled all my classes in the morning so that when I woke up at noon, I would already be done for the day." Read this and other tall tales at
ABAJournal.com
Two Palestinians are first women judges
Two women in their 30s became judges today -- not headline news in the United States anymore, but when it happens in Palestine, it is. Khuloud Faqih, 34, and Asmahan Wuheidi, 31, made history when they became the first female Islamic judges in the Palestinian territories. Across the Arab world, only Sudan has had women judges in Islamic courts, West Bank-based academic experts on Islamic affairs said. Lebanon, Syria and Jordan, all relatively progressive states in the region on women's rights, do not.
The Associated Press has the story
Judge offers help, not fines
Hamilton County General Sessions Court Judge Bob Moon made a young defendant cry today. He wasn't sentencing him, but giving him a break with some advice to help him set a better example for his child than had been set for him. Moon told Derrick Douglas, 19, to "take this money that you would normally be paying the state and open a small bank account for your (soon-to-be-born) child. The money will grow and you can provide an education and a much better life than your parents provided for you." The judge then offered to assist Douglas with the baby's needs after it was born. The young man reached over the bench, shook the judge's hand and left the courtroom in tears.
Chattanoogan.com reports
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Supreme Court Report
Gun ruling today decides meaning of 'misdemeanor'
In spite of its recent support for an individual right to bear arms, the Supreme Court today adopted an expansive reading of the federal law that bans possession of firearms by those who have been convicted of felonies or of "a misdemeanor crime of domestic violence." The meaning of the phrase about misdemeanors was the issue in United States v. Hayes, decided by a 7-2 vote.
The Blog of Legal Times reports
TennBarU CLE
Estate Planning Forum this Friday
Hear some of the state's top estate planners share their knowledge on estate planning developments and topics important to Tennessee practitioners at this Friday's Estate Planning Forum from the TBA's TennBarU. This information-packed, full-day program will provide 6 general CLE hours.
Learn more or register now
TBA Member Services
Discounts from Office Depot
Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot.
Find out more

 
 
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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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