 |
| Friday, September 30, 2011 |
|
| |
| |
TBJ covers e-discovery, deposits, social media, more
The October issue of the Tennessee Bar Journal includes a tribute to three legal icons who died recently: former Tennessee Supreme Court Chief Justice Adolpho A. Birch, former TBA President Larry Wilks and Court of Criminal Appeals Judge J.C. McLin.
In addition, an article by Tom Turner and John Tredennick shows how to reduce document review costs without compromising results using "smart sampling" in e-discovery, and
Cindy Brown explains how important it is not to incorrectly divide deposit funds.
Columnist Monica Franklin outlines the five biggest 'blunders' in elder law, and Edward R. Phillips addresses the hot topic of social media cases and how the National Labor Relations Board treats them.
And, trust us, you will not want to miss Bill Haltom's account of the Knoxville Bar Association's recent 'Seersucker Flash Mob." Pick up the magazine because the photo is only available in the print edition.
Read it all online or look in your mailbox for this issue
|
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.
01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
04 - 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. 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.
|
|
|
|
|
|
STATE OF TENNESSEE v. JOSHUA LYNN PARKER
Court: TSC
Attorneys:
Edward C. Miller, District Public Defender, and Keith E. Haas, Assistant Public Defender, for the appellant, Joshua Lynn Parker.
Robert E. Cooper, Jr., Attorney General & Reporter; Gordon W. Smith, Associate Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; and Al Schmutzer, Jr., District Attorney General Pro Tempore, for the appellee, State of Tennessee.
Judge: CLARK
We granted this appeal by the State to determine if the defendant's conviction of second degree murder should be affirmed pursuant to State v. Mellons, 557 S.W.2d 497 (Tenn.1977), despite insufficient evidence to support it. We hold that Mellons does not control the
outcome of this case. We also hold that sufficient proof must support every element of the offense of which a defendant is convicted, even where the conviction offense is charged as a lesser-included offense and sufficient proof supports the greater offense. In this case, the trial court erred in charging the jury with second degree murder as a lesser-included offense
of first degree felony murder. Because the proof is not sufficient to support it, we must reverse and vacate the conviction of second degree murder. However, because the proof is sufficient to support the offense of reckless homicide, we remand this matter to the trial court
for (1) entry of an amended judgment reflecting a conviction of reckless homicide, and (2) sentencing on reckless homicide. The defendant is entitled to no relief on his remaining issues. The judgment of the Court of Criminal Appeals is affirmed in part and reversed in
part.
http://www.tba2.org/tba_files/TSC/2011/parkerj_093011.pdf
JOE BURNETTE, Individually and Next Friend of Sons, JOSHUA BURNETTE, AND JACOB BURNETTE v. JOEL PORTER, JR., ET AL.
Court: TCA
Attorneys:
Stephen R. Leffler, Memphis, Tennessee, for the appellant, Joe Burnette.
Richard Glassman and Edwin E. Wallis, III, Memphis, Tennessee, for the appellees, Joel Porter, Jr., Beth Porter, Scott Ferguson, Ben Ferguson, and Maurie Baker.
Judge: STAFFORD
This is an appeal from a grant of summary judgment in favor of Appellees on claims of invasion of privacy by intrusion upon seclusion, and conspiracy to commit that tort. Appellees were invitees, and there is no evidence that they exceeded the scope of the invitation despite the fact that Appellees had ulterior motives in rocuring admission. Appellants failed to show that Appellees' actions were objectionably unreasonable or highly
offensive, which are essential elements of the invasion of privacy tort. Furthermore, in the absence of an underlying tort, there can be no conspiracy to commit the tort. Affirmed.
http://www.tba2.org/tba_files/TCA/2011/burnettej_093011.pdf
LARRY E. PARRISH, P.C. v. DODSON ET AL.
Court: TCA
Attorneys:
Timothy T. Ishii, Nashville, Tennessee, for the appellant, Nancy J. Strong.
Kevin W. Weaver, Cordova, Tennessee; and Megan McCune, Memphis, Tennessee, for the appellee, Larry E. Parrish, P.C.
Judge: CLEMENT
The former attorney of a client filed a seldom used "In Rem Complaint to Trace and Recover Res" to prosecute a chose-in-action assigned by the former client in payment of attorney's fees. The funds to be recovered by this action were being held in trust by another law firm following the resolution of a separate, but related action. The former client filed an answer asserting that the assignment was unconscionable, thus, unenforceable; she also filed a counter-claim against her former attorney for breach of contract and breach of fiduciary duty. Both parties filed motions for summary judgment. The trial court found that certain
provisions of the assignment were unconscionable and others were not and granted partial summary judgment to each party. Finding that the provision awarding $50,000 to the plaintiff was not unconscionable, the trial court granted a judgment in the plaintiff's favor for that amount plus interest. The trial court also awarded the former client $10,000 in attorney's fees upon a finding that she was the "prevailing party" in this action. Both parties appeal. We reverse upon a finding that there are genuine issues of material fact that preclude a grant of summary judgment to either party and remand for further proceedings.
http://www.tba2.org/tba_files/TCA/2011/parrishl_093011.pdf
STATE OF TENNESSEE v. MARCOS ENRIQUE COLLAZO, SR.
Court: TCCA
Attorneys:
Katie Weiss and Emily Todoran (at trial) and Charles E. Walker (on appeal), Nashville, Tennessee, for the appellant, Marcos Enrique Collazo, Sr.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kristen Menke, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: OGLE
A Davidson County Criminal Court jury convicted the appellant, Marcos Enrique Collazo, Sr., of three counts of rape of a child, seven counts of rape by fraud, seven counts of statutory rape by an authority figure, and seven counts of misdemeanor assault. The trial court
imposed a total effective sentence of 130 years in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in denying his motion to sever, that the trial court erred in denying his motion to exclude pornographic videos found in his
bedroom, that the evidence was insufficient to sustain his convictions for rape by fraud and statutory rape by an authority figure, and that the trial court erred in sentencing. We conclude that the trial court erred in denying the appellant's severance motion. However, the
error was harmless. Finding no further error, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/collazom_093011.pdf
DELMAR REED v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Gerald S. Green, Memphis, Tennessee (on appeal); and Jeremy Parham, Nashville, Tennessee (at evidentiary hearing), for the appellant, Delmar Reed.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Rachael Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
Aggrieved by his Davidson County Criminal Court jury convictions of ten counts of harassment, one count of attempted aggravated burglary, one count of vandalism of property valued at $500 or less, one count of vandalism of property valued at $1,000 or more but less
than $10,000, and one count of setting fire to personal property, for which he received an effective sentence of 19 years' incarceration, the petitioner, Delmar Reed, filed a timely petition for post-conviction relief alleging ineffective assistance of counsel. Following a full
evidentiary hearing, the post-conviction court denied relief. Discerning no error, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/reedd_093011.pdf
STATE OF TENNESSEE v. MARKQUITTON SANDERS
Court: TCCA
Attorneys:
Gregory D. Smith (on appeal) and Edward Dewerff (at trial), Clarksville, Tennessee, for the appellant, Markquitton Sanders.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee.
Judge: OGLE
The appellant, Markquitton Sanders, pled guilty to two felony drug offenses and was allowed to serve his sentences in community corrections. Thereafter, the trial court found him guilty of violating his community corrections sentences and ordered him to serve the remainder of his sentences in confinement. On appeal, the appellant challenges the trial court's imposition
of a term of incarceration. Upon review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/sandersm_093011.pdf
STATE OF TENNESSEE v. COURTNEY WATKINS
Court: TCCA
Attorneys:
Stephen C. Bush, Public Defender, and Barry W. Kuhn, Assistant Public Defender, Memphis, Tennessee, for the appellant, Courtney Watkins.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
A Shelby County jury convicted the Defendant, Courtney Watkins, of especially aggravated robbery, and the trial court sentenced him to twenty-three years of imprisonment. On appeal, the Defendant argues that the trial court erred by allowing the hearsay testimony of several witnesses, that photographs depicting the victim's injuries were prejudicial, that the trial
court erred by allowing him to be impeached with evidence of a prior conviction, and 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/2011/watkinsc_093011.pdf
|
|
 |
|
| TODAY'S NEWS |
|
Legal News
Celebrate Pro Bono
Upcoming
Disciplinary Actions
TBA Member Services
|
| Legal News |
| Tennessee sexual offender registry passes muster |
| The U.S. Department of Justice has agreed that Tennessee's sexual offender registry meets national standards, a decision that preserves about $5 million in federal grants to the state. |
Learn more from The Tennessean
|
| 2 of 'Memphis 3' interviewed on CNN |
| Two of the "Memphis Three" appeared on a talk show last night with Piers Morgan, their first sit-down interview since their release from prison a month ago.
The men had been imprisoned for the brutal 1993 murders of three young boys in West Memphis, Ark. Evidence against the men was circumstantial, however, and doubts grew over the years about their guilt.
Finally, nearly two decades after the crime, the men were freed, the result of a complicated plea agreement requiring them to plead guilty even while declaring their innocence. |
CNN has the interview
|
| Pacer pages to go up 2 cents |
| The cost of Pacer documents will increase two cents a page -- to 10 cents each -- under a new policy adopted by the Judicial Conference of the United States. The fee increase was announced along with a new policy that encourages federal courts to limit those instances in which they seal entire civil case files. Cases should be sealed only when required by statute or rule, or when justified by a showing of extraordinary circumstances and an absence of feasible alternatives, according to the policy. |
ABAJournal.com explains
|
| Town meeting to discuss ACLU suit |
| Coaches in Sumner County are being reminded that public school employees may not initiate prayer at school events.
An informational meeting Oct. 3 will discuss and answer questions about ongoing litigation with the American Civil Liberties Union of Tennessee, which filed a lawsuit in May accusing the Board of Education of promoting Christianity.
"Public school employees must take care to prevent the impression of endorsement of religion," Hedy Weinberg, executive director of the ACLU of Tennessee, said. "Such safeguards ensure that students coming from families with a range of religious beliefs are respected." |
The Tennessean has more
|
| Johnson City considers senior citizen-court swap |
| Johnson City is considering the feasibility of converting the existing Seniors' Center into the city's juvenile court. The juvenile court, which is currently about 6,000 square feet in size, would double its space by moving into the roughly 12,000-square-foot seniors' center. Sealed proposals for architectural services must be received by the city no later than 3 p.m. Oct. 11.
|
The Johnson City Press reports
|
| '50 Women' event a success |
| Miller & Martin PLLC hosted "50 Women You Need to Meet," an event geared toward creating a network of women from a diverse cross-section of Chattanooga's business community, on Sept. 15. The event was designed by Lynda Hill, a lawyer with Miller & Martin, who saw the need for a group designed specifically for women to network with and support one another while providing a platform to share information and resources across the group. |
Chattanoogan.com reports
|
| Lawyer explains Internet etiquette to students |
| In explaining to University of Tennessee students about Internet etiquette, lawyer C.L. Lindsay asked a question of the crowd earlier this week.
"Would you put 50 pictures of yourself smoking weed up on campus property, or steal a DVD from Best Buy? No, well don't do it online either." |
The Daily Beacon covered the speech
|
| Kobach: the man behind new immigration laws |
| Behind Alabama's and Arizona's immigration laws is Kris Kobach, a constitutional lawyer and the Kansas secretary of state. Kobach also has helped several other states shape immigration legislation, and he says there's more to come in 2012.
"Kris Kobach is the driving force, really, behind the tactics we're seeing out of the anti-immigrant lobby right now," says Heidi Beirich with the Southern Poverty Law Center. |
National Public Radio has this profile
|
| Celebrate Pro Bono |
| Legal advice clinic set for Saturday in Johnson City |
| The Washington County Bar Association and Legal Aid of East Tennessee will host a legal advice clinic Saturday, Oct. 1, from 9 a.m. to noon at Good Samaritan Ministries, 100 N. Roan St., Johnson City. For more information contact Tony Seaton at 423-282-1041 or tony@tonyseaton.com. |
|
| Upcoming |
| Caraway among alum honored by U of M |
| The University of Memphis College of Arts & Sciences Alumni Chapter will host its Outstanding Alumni Awards dinner Oct. 13, at 6 p.m. in the University Center Ballroom. Among those to be honored is lawyer Kirk Caraway, a partner with Allen, Summers, Simpson, Lillie & Gresham.
Last year Caraway was elected secretary of the Memphis Bar Association; he will serve the MBA as an officer for four years, culminating with his serving as president in 2013-14.
For more information or to make reservations contact alumni coordinator Wendy Sumner-Winter at 901-678-1562 or wsumner1@memphis.edu.
|
|
| Law student group hosts professional auction |
| On Oct. 4, the Black Law Students Association at the University of Memphis School of Law will host a professional auction from 5:30 to 8:30 p.m. at
Felicia Suzanne's in downtown Memphis. The event is designed to allow law students the opportunity to network with local attorneys and judges.
Participants include District Attorney Amy Weirich, Criminal Court Judge
John Fowlkes, Linda Warren Seely with Memphis Area Legal Services and
Memphis Bar Association Treasurer Bruce McMullen, a shareholder at Baker Donelson Bearman Caldwell & Berkowitz. The event is sponsored by the firm of
Glassman, Edwards, Wyatt, Tuttle & Cox. For more information, contact Angela
Harris at
adharri@memphis.edu
or Shalonda Grandberry at
sgrndbrr@memphis.edu.
|
|
| Disciplinary Actions |
| Bristol lawyer censured |
| On Sept. 27, Howard Robert Orfield of Bristol was censured by the state
Supreme Court for failing to diligently represent and adequately communicate
with clients. The court determined that his actions violated Rules of
Professional Conduct 1.3 and 1.4 and ordered him to pay the costs of his
disciplinary proceeding. |
Download the BPR's press release
|
| Shelby County lawyer suspended |
|
On Sept. 27, the Supreme Court suspended Shelby County attorney Darren James
Scoggins for five years after he pled guilty to false imprisonment,
aggravated burglary, aggravated assault, possession of a weapon,
prescription drug fraud, forgery and identity theft. Scoggins agreed to a
conditional guilty plea and accepted the five-year suspension. The court
also ordered him to pay the costs of his disciplinary proceeding prior to
seeking reinstatement to the practice of law. The suspension will begin
immediately following his release from prison. |
Download the BPR's press release
|
| TBA Member Services |
| CompuPay offers deals for TBA members |
| CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees. |
Learn more about CompuPay's benefits
|
| |
|
| |
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php
Questions, comments: Email us at TBAToday@tnbar.org
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.
© Copyright 2011 Tennessee Bar Association
|
|
|
