Donald to be honored with 'Spirit of Excellence' award

The American Bar Association (ABA) Commission on Racial and Ethnic Diversity in the Profession will present its 2011 Spirit of Excellence Award to Judge Bernice B. Donald of the U.S. District Court for the Western District of Tennessee, Memphis. The award will be presented Feb. 12, during the 2011 ABA Midyear Meeting in Atlanta. "Her accomplishments as a jurist, and as a woman of color in a challenging, competitive profession have demonstrated a commitment to excellence, and to promoting a more racially and ethnically diverse legal profession," Commission Chair Fred W. Alvarez said. "She has held herself to the highest standards, and modeled a dedication to justice to which every lawyer can and should aspire."

Donald has served as a federal district court judge since 1996, and was the first African American female named a federal district court judge in the Western District of Tennessee. She is the current secretary of the ABA.

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IN THE MATTER OF: APRIL F. (d.o.b. 11/20/98), DYLAN F. (d.o.b. 3/30/00), and DEVIN F. (d.o.b. 7/24/06) ET AL.
CORRECTION on page 5, in line 8, where the word "and" has been added before "Father had not created . . ."

Court: TCA


Kimberly M. Hinson, Linden, Tennessee, for the appellant, Timothy F.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Ryan L. McGehee, Assistant Attorney General and Mary L. White, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services.


This is a termination of parental rights case. The juvenile court terminated the parental rights of the father on the grounds of persistence of conditions, substantial noncompliance with the terms of the permanency plans, and abandonment by willful failure to support. The father appeals, arguing that the Department of Children's Services did not clearly and convincingly show that it made reasonable efforts to help him address his addiction to methamphetamine, clearly and convincingly prove grounds for termination, or clearly and convincingly demonstrate that termination of his parental rights was in the best interests of the children. Because DCS did not clearly and convincingly demonstrate that it made reasonable efforts to reunite the father with his children, we reverse.


Court: TCA


Everett L. Hixson, Jr., and Adam U. Holland, Chattanooga, Tennessee, for the appellants, Dillard Construction, Inc., and International Fidelity Insurance Company.

C. George Caudle, Chattanooga, Tennessee, for the appellee, Havron Contracting Corp.


The only parties left litigating in what started out as a complex construction dispute are, on one side, Dillard Construction, Inc , and, on the other, Dillard's demolition subcontractor, Havron Contracting Corp. After a bench trial and several post-trial motions, the court held that (1) Dillard, while not having a contract with Havron, was required by quantum meruit to pay Havron $91,100 for work performed by Havron's subcontractors; (2) Dillard was not entitled to an offset against that judgment for damage done to electrical equipment by Havron's subcontractor; (3) Havron was entitled to recover from Dillard, under a "passthrough" indemnity theory, the attorney's fees awarded against Havron and in favor of its subcontractor; and (4) Havron was not entitled to recover the attorney's fees that it, Havron, incurred in defending against the claims of its subcontractor. Dillard appeals challenging both the quantum meruit award and the denial of an offset. Havron challenges the trial court's denial of indemnification for attorney's fees Havron incurred in defending the claims of its subcontractor. We affirm.


Court: TCA


Stevan L. Black, Vickie Hardy Jones, Memphis, Tennessee, for the appellants, Michael Kline and Annette Kline

Dale H. Tuttle, James F. Horner, Jr., Memphis, Tennessee, for the appellee, Gerald Chittom

William M. Jeter, Memphis, TN, for the appellee, Ralph Lunati


This appeal involves a lawsuit filed against a nightclub and several individuals who, according to Plaintiffs, were owners of the nightclub at the time of the events giving rise to this lawsuit. The trial court granted summary judgment to two of those individuals, finding that they had produced "conclusive" evidence that they had no ownership interest in the club at the relevant time. Plaintiffs appeal. We reverse and remand for further proceedings.


Court: TCA


J. Russell Parkes and Charles M. Molder, Columbia, Tennessee, for the appellants, Katrina Martins and Joseph J. Martins.

Bryan Essary and Heather Piper-Coke, Nashville, Tennessee, for the appellee, Williamson County Hospital District, d/b/a Williamson Medical Center.


Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.


Court: TCA


Andrew L. Wener, Memphis, Tennessee, for the appellant, Jelani Stinson.

Haavi Morreim, Cordova, Tennessee, for the appellee, Margaret Washington.

Christina A. Zawisza, Memphis, Tennessee, Guardian ad Litem


This is a child custody dispute between a biological father and the children's maternal grandmother. The trial court awarded custody to the grandmother. We affirm.


Court: TCA


Kirk L. Clements, Goodlettsville, Tennessee, for the appellant, Limmie R. Walls.

M. Allen Ehmling, Gallatin, Tennessee, for the appellee, Bobby G. Hopkins.


This tort action arises out of a two-vehicle accident. Plaintiff sued defendant under a negligence theory and sought damages. After a jury trial, the jury equally allocated fault between plaintiff and defendant. Plaintiff filed a motion for a new trial, and the trial court denied the motion. On appeal, plaintiff argues that the jury's verdict is not supported by material evidence and that the trial court erred in permitting testimony regarding plaintiff's intention to use a shortcut. We affirm.


Court: TCCA


Milton L. Byrd, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James Michael Taylor, District Attorney General; for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Milton L. Byrd, appeals as of right from the Bledsoe County Circuit Court's summary dismissal of his petition for writ of habeas corpus attacking his 1992 convictions of aggravated assault and second degree murder. On appeal, he contends that the judgments are void because (1) they were imposed in contravention of the law concerning the service of sentences for offenses committed while on bail, and (2) he was erroneously declared infamous. Following our review, we affirm the order of the trial court.


Court: TCCA


Stephen M. Wallace, District Public Defender; Richard A. Tate, Assistant Public Defender (on appeal); and Brad Sproles, Kingsport, Tennessee (at trial), for the appellant, James Parker, aka "Self."

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; H. Greeley Wells, Jr., District Attorney General; and Jack Lewis Combs, Jr. and Teresa A. Nelson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, James Parker, aka "Self," was convicted by a Sullivan County Criminal Court jury of sale of less than 0.5 grams of cocaine, a Class C felony; delivery of less than 0.5 grams of cocaine, a Class C felony; possession of 0.5 grams or more of cocaine with intent to sell or deliver, a Class B felony; sale of 0.5 grams or more of cocaine, a Class B felony; delivery of 0.5 grams or more of cocaine, a Class B felony; sale of 0.5 grams or more of cocaine within 1000 feet of a school, a Class A felony; and delivery of 0.5 grams or more of cocaine within 1000 feet of a school, a Class A felony. The alternate delivery counts merged into the sale counts, and the trial court sentenced the defendant to six years for sale of less than 0.5 grams of cocaine, eight years for possession of 0.5 grams or more of cocaine with intent to sell or deliver, eight years for sale of 0.5 grams or more of cocaine, and twenty-five years for sale of 0.5 grams or more of cocaine within 1000 feet of a school. The court ordered that the twenty-five-year sentence be served consecutively to the other sentences, which were to be served concurrently, for an effective term of thirty-three years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence and the sentences imposed by the trial court. After review, we affirm the judgments of the trial court. However, the judgment in count seven incorrectly identifies the defendant's conviction for delivery of 0.5 grams or more of cocaine within 1000 feet of a school as a Class B felony; therefore, we remand for entry of a corrected judgment.


Court: TCCA


Charles Ray Powell, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James Michael Taylor, District Attorney General; Steven M. Blount, Assistant District Attorney General; and William Copeland, Assistant District Attorney General, for the appellee, the State of Tennessee.


Petitioner, Charles Ray Powell, appeals as of right the Franklin County Circuit Court's summary denial of his petition for post-conviction relief. In 1996, Petitioner was convicted by a jury of first degree murder and sentenced by the trial court to serve life imprisonment. This court affirmed Petitioner's conviction, and Petitioner did not make application for permission to appeal to the Tennessee Supreme Court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. State v. Charles Ray Powell, M1998-00757-CCA-R3-CD, 2000 WL 621137 (Tenn. Crim. App. at Nashville, May 12, 2000). On July 10, 2009, Petitioner filed a pro se petition for post-conviction relief, seeking a delayed appeal and collaterally attacking his conviction. The post-conviction court concluded that the petition was barred by the statute of limitations and dismissed it without a hearing. Upon review, we conclude that Petitioner's post-conviction petition is barred by the statute of limitations and affirm the trial court's dismissal of the petition.


Court: TCCA


Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant, William Edward Watkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Kimberly L. Fields Cooper, Assistant District Attorney General, for the appellee, State of Tennessee.


The Petitioner, William Edward Watkins, appeals the Maury County Circuit Court's denial of his petition for post-conviction relief from his convictions for two counts of first degree felony murder and one count of attempted aggravated robbery, for which he is serving consecutive life sentences plus three years. In this appeal, the Petitioner contends that he is entitled to post-conviction relief because trial counsel was ineffective for failing to request the jury instructions on lesser included offenses and for failing to raise the issue in his motion for new trial in order to preserve the issue for appellate relief. We affirm the judgment of the post-conviction court.


Court: TCCA


Jeffrey S. Zarnik, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se defendant, Jeffrey S. Zarnik, appeals the trial court's denial of his motion to reduce or discharge his fine for his 2006 DUI conviction, arguing that the court denied the motion under the erroneous belief that it had no authority to waive the minimum fine in a DUI case. We agree with the defendant. Accordingly, we reverse the judgment of the trial court and remand the case for the trial court to consider the defendant's motion on its merits.


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Hate crimes down overall, but gays more likely to be victims
The number of hate crime incidents and victims declined in 2009 compared with the previous year, the FBI reported Monday. Of more than 6,000 hate crime offenders, more than six in 10 were white while nearly two in 10 were black. In a separate study, the Southern Poverty Law Center reported that homosexuals are far more likely to be victims of violent hate crime than any other minority group. The center said that homosexuals, or those perceived to be gay, are more than twice as likely to be attacked in a violent hate crime as Jews or blacks; more than four times as likely as Muslims; and 14 times as likely as Latinos.
The Times Free Press carried this AP story
Levy pleads guilty, gets 3 years' probation
Former Tennessee Medical Examiner Bruce Levy pleaded guilty in Nashville today to official misconduct for taking marijuana from evidence lockers. Davidson County Criminal Court Judge Seth Norman sentenced him to three years of supervised probation. The sentence will run concurrently with a three-year probated sentence in Mississippi, stemming from the same incident. As a condition of his probation, Levy will undergo drug testing. His record will be expunged in both states if he successfully completes probation. Levy's medical license is still intact, though it is on probation for five years.
The News Sentinel carried this AP story
'Helicopter' parents often get rewarded in court
Some experts say courts are rewarding overprotective parents by giving them the edge in child custody cases despite the psychological harm that overprotection may lead to in child rearing. "I could definitely see where courts could encourage that helicopter-parent behavior," says Memphis attorney Rebecca Grove. "But it's very suffocating." She says she's seen cases where one parent, often the mother, signs the child up for "everything she can think of" in an effort to gain monetary support and assert control. Grove says courts often defer to the hyper-engaged parent and then reward them financially through child support. "The judge will say it's great the kids are in ballet, tutoring, etc., regardless of whether he or she needs it, and the other parent is still responsible for paying their pro rata share," Grove says. "And if the other parent isn't involved, the court would look at them as a deadbeat."
Read the feature in the ABA Journal
Tenn. Defense Lawyers name new officers
New officers of the Tennessee Defense Lawyers Association are President Melanie Stewart with Stewart & Wilkinson PLLC in Germantown, President-elect Robert A. Crawford with Kramer Rayson LLP in Knoxville, and Secretary/Treasurer John Barringer with Manier & Herrod in Nashville.

'Bambi' Bembenek's lawyer continues quest for pardon
Lauri "Bambi" Bembenek died Saturday in Portland, Ore., at the age of 52, but her lawyer is continuing the fight to win a pardon and DNA tests for the former inmate who claims she had been wrongly accused of murder. A former Playboy model and police officer, Bembenek pleaded no contest to second-degree murder in the 1981 slaying of Christine Shultz, her husband's ex-wife, in a deal that allowed Bembenek to get out of prison after a well-publicized escape. Don Paine wrote his July 2008 Tennessee Bar Journal column about the case.
The ABAJournal reports
Don't Tweet threats, even in jest, or you may be a jailbird
One man thought he was just bantering with his pals when he joked about blowing an airport sky-high if his plane was late, while another was reacting to a radio phone-in when he mused about stoning a journalist to death. Because they made their comments on Twitter, both are in legal trouble. Their cases have outraged civil libertarians and inflamed the debate about the limits of free speech in a Web 2.0 world. "I think people don't have any idea of the potential legal ramifications of things they post on the Internet," said Gregor Pryor, a digital media lawyer at Reed Smith in London. "Anything you post on Twitter can come back and haunt you." reported this AP story
Election set to fill Rep. Jones' seat
The special election dates for the state House District 98 vacancy caused by the death of state Rep. Ulysses Jones have been set, Secretary of State Tre Hargett said today. The special primary is Jan. 20 and the general election is March 8. Jones died Nov. 9.
The Commercial Appeal has more
Memphis Bar annual meeting set for Dec. 2
The Memphis Bar Association (MBA) will hold its annual meeting Dec. 2 from 11:30 a.m. to 1 p.m. at the Racquet Club in East Memphis. Tickets for the seated lunch are $35, and tables of 10 are available. Results of the recently conducted board of directors election will be announced and the annual Lawyer's Lawyer and Sam A. Myar awards will be presented at the event. For more information, call the MBA office at (901) 527-3573.

Cole to speak on homelessness at APSU
Erik Cole, executive director of the Tennessee Alliance for Legal Services, will be the next speaker in the Honors Lecture Series at Austin Peay State University. He will present "Housing First: New Directions in Solving the Inconvenient Issue of Homelessness" at 12:45 p.m., Dec. 2. The event is free and open to the public.
Read more from the Leaf-Chronicle
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