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Thursday, December 02, 2010

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Obama nominates Donald to appeals court

President Obama late Wednesday nominated Judge Bernice Donald for a seat on the U.S. Court of Appeals for the Sixth Circuit. Donald currently serves as U.S. District Judge for the Western District of Tennessee. "Judge Donald has shown an outstanding commitment to public service throughout her career and as a District Judge in Tennessee," Obama said in a statement released by the White House. Originally from DeSoto County, Miss., Donald has served on the federal bench in Memphis for 15 years. She graduated from Memphis State University and in 1979 received her law degree from the Cecil C. Humphreys School of Law.

The Commercial Appeal reports

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. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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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. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

WONDIMU BORENA v. YELLOW CAB METRO, INC. ET AL.

Court: TCA

Attorneys:

Jola Moore, Esq., Nashville, Tennessee, Pro Se.

Wondimu Kabtihyimer Borena, Nashville, Tennessee, Pro Se.

Richard Hedgepath, Erik O. Thorngren, and Wendy L. Longmire, Nashville, Tennessee, for the appellees, Yellow Cab Metro, Inc.; Tony and Rima Seman; and Muhammad Shaikh.

Judge: CLEMENT

The former attorney for the plaintiff, who is seeking to recover a contingency fee pursuant to an attorney's lien she filed after her services were terminated, filed this appeal challenging the trial court's finding that the parties did not enter into a binding settlement agreement and the involuntary dismissal of the underlying personal injury action. The action was dismissed because the pro se plaintiff did not comply with orders of the court. The plaintiff's former attorney claims she has the independent right to enforce a settlement she negotiated, but which her client rejected, in order to recover a fee. The pro se plaintiff also seeks to set aside the involuntary dismissal of his case. Finding no merit to the arguments asserted on appeal, we affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2010/borenaw_120210.pdf

ALBERT J. HALE, v. JAMES NEELEY, COMMISSIONER, et al.
CORRECTION to add the attorney general to the front page of the opinion

Court: TCA

Attorneys:

Eric D. Miller, Johnson City, Tennessee, for the appellant, Albert J. Hale.

John M. Russell and Lauren A. Wong, Memphis, Tennessee, for the appellee, Wal-Mart Associates, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Lindsey O. Appiah, Assistant Attorney General, Nashville, Tennessee, for the appellee, James Neeley, Commissioner, Tennessee Department of Labor and Workforce Development.

Judge: FRANKS

Claimant, an employee of Wal-Mart, was charged with possession of cocaine and pled guilty to a misdemeanor possession, and was then discharged for violating company policy. Claimant was not at work nor on Wal-Mart's property when the offense occurred. The agency found that claimant was discharged under disqualifying conditions and denied unemployment benefits. Throughout the appeals process, denial of benefits was upheld. On appeal to this Court, we hold that claimant violated Wal-Mart's policies by failing to report his conviction under a criminal drug statute to his employer within three days as required under the employer's policy. We affirm the denial of unemployment benefits to claimant.

http://www.tba2.org/tba_files/TCA/2010/halea_COR_120210.pdf

DONALD M. MERRIWEATHER v. LUTHER SMITH, JR.

Court: TCA

Attorneys:

Luther Smith, Jr., Memphis, Tennessee, Defendant/Appellant, Pro Se.

Ellen Fite, Memphis, Tennessee, for the Plaintiff/Appellee, Donald M. Merriweather.

Judge: KIRBY

This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2010/merriweatherd_120210.pdf

BOBBY ERVIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Bobby Ervin, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Lawrence A. Whitley, District Attorney General; and Byrna Grant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Bobby Ervin, appeals from the order of the trial court dismissing his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/ervinb_120210.pdf

STATE OF TENNESSEE v. KENNETH MEYER
CORRECTION

Court: TCCA

Attorneys:

Edward L. Boring, Pikeville, Tennessee, for the appellant, Kenneth Meyer.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General and Reporter; James Michael Taylor, District Attorney General; and James William Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Kenneth Meyer, was found guilty by a Bledsoe County Circuit Court jury of voluntary manslaughter, a Class C felony. See T.C.A. section 39-13-211 (2010). He was sentenced as a Range II, multiple offender to ten years' confinement. On appeal, he contends that (1) the evidence was insufficient to support his conviction, (2) the trial court erred by admitting only part of a 9-1-1 tape into evidence, (3) the trial court erred by admitting hearsay into evidence, (4) the state improperly withheld exculpatory evidence, (5) the trial court erred by refusing to issue a self-defense instruction requested by the Defendant, (6) the trial court erred by considering prior criminal convictions that were not proven by certified copies of conviction and were not disclosed to the Defendant before the sentencing hearing, and (7) the trial court imposed an excessive sentence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/meyerk_CORR_120210.pdf

Timeliness of Notification of Conflicts of Interest by Persons Taking Depositions

TN Attorney General Opinions

Date: 2010-12-02

Opinion Number: 10-114

http://www.tba2.org/tba_files/AG/2010/ag10_114.pdf

TODAY'S NEWS

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Legal News

Appeals court rebukes TennCare judge

The Sixth Circuit Court of Appeals has handed down a strongly worded ruling that removes U.S. District Court Judge William J. Haynes Jr. from his involvement in the 12-year-old challenge to TennCare, Tennessee's managed-care program. The state had sought Haynes' removal as well as the overturning of a 2000 consent decree governing early-screening programs. It was a mixed ruling for the state since the court vacated just a small part of the consent decree.

The Nashville Post has the story (subscription required)

Memphis Bar names new officers, award winners

Memphis attorney John Cannon with Shuttleworth Williams PLLC took the gavel today as incoming president of the Memphis Bar Association (MBA). He succeeds Ricky E. Wilkins. The group's annual meeting also featured the presentation of various awards. Solo practioner Beth Brooks received the Community Legal Center Award. Past MBA president David M. Cook with the Hardison Law Firm PC was honored with the Jerome Turner Lawyer's Lawyer Award. Craig Conley, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz PC, won the Sam A. Myar Jr. Award, which goes annually to a young attorney. And federal bankruptcy judge Jennie D. Latta received the W.J. Michael Cody Pro Bono Attorney of the Year Award from Memphis Area Legal Services.

The Memphis Daily News reports

Fisk to appeal latest art ruling

Fisk University yesterday said it would appeal the most recent Davidson County Chancery Court ruling regarding its famed Stieglitz art collection. On Nov. 3, the court approved sale of half interest in the collection but stipulated that $20 million of the $30 million asking price be placed in an independent endowment fund, and that $1 million be set aside to maintain and support the collection. School officials argue they need to use the sale proceeds to keep the university economically viable.

The Nashville City Paper has more

Comments sought about magistrate judges

The current terms of office for U.S. Magistrates Judges Tu M. Pham and Diane K. Vescovo are due to expire in 2011 (April and June, respectively). The U.S. District Court for the Western District of Tennessee is soliciting comments regarding whether the two judges should be recommended for reappointment. Comments should be directed to Thomas M. Gould, Clerk of Court, 167 N. Main St., Ste. 242, Memphis 38103 or by email. Submissions must be received by Dec. 31.

View the court's notice

New judge named in West Memphis 3 case

Circuit Court Judge David Laser from Jonesboro, Ark., has been appointed to oversee a new evidentiary hearing for the West Memphis 3. He replaces retired Judge David Burnett, who handled the case originally as well as the hearings that followed. Laser said he would follow protocol sent down by the Arkansas Supreme Court while considering whether new DNA evidence and the possibility of juror misconduct justifies a new trial.

WREG-TV Memphis has the news

Law firm survey released

After two years of turmoil, the nation's largest law firms are settling into a new normal, reports a recent survey of law firm leaders. The American Lawyer's 2010 Law Firm Leaders Survey suggests that many of the changes implemented during the recession -- smaller associate classes, postponed start dates for new hires, reductions in the equity pool, and scaled-back profit expectations -- are here to stay for awhile.