Thursday, February 09, 2012
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LMU asks court to reconsider injunction

Lincoln Memorial University's Duncan School of Law on Wednesday asked the U.S. District Court to reconsider its decision denying an injunction against the American Bar Association (ABA), which rejected the school's application for accreditation in December. The motion to reconsider, according to WBIR News 10, says the ABA's actions have led to "irreparable harm" with at least eight students withdrawing and other students expressing interest in transferring. It also argues that the court made its decision to deny the injunction based on inaccurate information. A separate story in the Knoxville News Sentinel says that applications to the school have fallen by 26 percent since the ABA decision.

The ABA responded with a motion to dismiss the school's suit and stay the litigation, saying Duncan has filed an appeal with its accreditation panel and that process should be allowed to proceed without judicial interference.
TODAY'S OPINIONS
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IN RE: A.W.

Court: TCA

Attorneys:

Dean Hill Rivkin and Brenda McGee; Emily Mack, practicum student attorney; and, Karina Xart, practicum law student; Knoxville, Tennessee, for the appellant, A.W.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Alexander S. Rieger, Assistant Attorney General; for the appellee, the State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the then minor child A.W. The Juvenile Court for Knox County ("the Juvenile Court") found A.W. to be an unruly child. A.W. filed a Petition to Vacate Orders and to Dismiss ("Petition to Vacate") regarding the order finding A.W. to be an unruly child. The Juvenile Court denied the Petition to Vacate. A.W. appealed to the Circuit Court for Knox County, Fourth Circuit ("the Circuit Court"). The State of Tennessee ("the State") moved to dismiss the appeal arguing the appeal was untimely. The Circuit Court granted the State's motion to dismiss. A.W. appeals to this Court, arguing that the Circuit Court should have heard A.W.'s appeal from Juvenile Court. We hold that the Circuit Court erred in granting the State's motion to dismiss A.W.'s appeal of the Juvenile Court's order denying A.W.'s Petition to Vacate. We reverse the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCA/2012/aw_020912.pdf
JOHN A. BRUBAKER v. H.T. BECKHAM

Court: TCA

Attorneys:

Jerry Wayne Hamlin, Ashland City, Tennessee, for the appellant, H.T. Beckham.

Rhonda R. Crabtree, Ashland City, Tennessee, for the appellee, John A. Brubaker.

Judge: PER CURIAM

This appeal arises out of a dispute over personal property located on land sold at a foreclosure sale. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

http://www.tba2.org/tba_files/TCA/2012/brubakerj_020912.pdf
IN RE: B.R.

Court: TCA

Attorneys:

Dean Hill Rivkin and Brenda McGee; Emily Mack, practicum student attorney; and, Karina Xart, practicum law student; Knoxville, Tennessee, for the appellant, B.R.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Alexander S. Rieger, Assistant Attorney General; for the appellee, the State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the then minor child B.R. The Juvenile Court for Knox County ("the Juvenile Court") found B.R. to be an unruly child. B.R. filed a Petition to Vacate Orders and to Dismiss ("Petition to Vacate") regarding the order finding B.R. to be an unruly child. The Juvenile Court denied the Petition to Vacate. B.R. appealed to the Circuit Court for Knox County, Fourth Circuit ("the Circuit Court"). The State of Tennessee ("the State") moved to dismiss the appeal arguing the appeal was untimely. The Circuit Court granted the State's motion to dismiss. B.R. appeals to this Court, arguing that the Circuit Court should have heard B.R.'s appeal from Juvenile Court. We hold that the Circuit Court erred in granting the State's motion to dismiss B.R.'s appeal of the Juvenile Court's order denying B.R.'s Petition to Vacate. We reverse the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCA/2012/br_020912.pdf
JEROME DEGANS v. TENNESSEE DEPARTMENT OF CORRECTIONS, ET AL.

Court: TCA

Attorneys:

Jerome Degans, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Bill Young, Solicitor General; and Mark A. Hudson, Senior Counsel, for the appellee, State of Tennessee.

Judge: DINKINS

Inmate filed petition seeking review of decision of prison disciplinary board. Trial court dismissed petition for failure to comply with applicable constitutional and statutory provisions. Finding that the trial court did not err, we affirm the dismissal of the petition.

http://www.tba2.org/tba_files/TCA/2012/degansj_020912.pdf
IN RE ESTATE OF REGINALD BOYA DEMONBREUN

Court: TCA

Attorneys:

Mark Edward Chapman and Sullivan F. Marsden, Nashville, Tennessee, for the appellant, Larry C. Demonbreun.

Gregory M. Galloway, Nashville, Tennessee, for the appellee, Claude Peters.

Judge: BENNETT

Personal representative appeals from order granting $27,900 claim against decedent's estate. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCA/2012/demonbreunr_020912.pdf
JAMES P. HURT v. STATE OF TENNESSEE

Court: TCA

Attorneys:

James P. Hurt, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Bill Young, Solicitor General; and Mark A. Hudson, Senior Counsel, for the appellee, State of Tennessee.

Judge: DINKINS

Inmate filed petition seeking review of decision of prison disciplinary board convicting him of various disciplinary offenses. Trial court dismissed petition for failure to comply with Tenn. Code Ann. section 27-8-106. Finding that the trial court did not err in dismissing the Petition, we affirm the judgment.

http://www.tba2.org/tba_files/TCA/2012/hurtj_020912.pdf
IN RE: M.R.

Court: TCA

Attorneys:

Dean Hill Rivkin and Brenda McGee; Emily Mack, practicum student attorney; and, Karina Xart, practicum law student; Knoxville, Tennessee, for the appellant, M.R.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Alexander S. Rieger, Assistant Attorney General; for the appellee, the State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the minor child M.R. The Juvenile Court for Knox County ("the Juvenile Court") found M.R. to be an unruly child. M.R. filed a Petition to Vacate Orders and to Dismiss ("Petition to Vacate") regarding the order finding M.R. to be an unruly child. The Juvenile Court denied the Petition to Vacate. M.R. appealed to the Circuit Court for Knox County, Fourth Circuit ("the Circuit Court"). The State of Tennessee ("the State") moved to dismiss the appeal arguing the appeal was untimely. The Circuit Court granted the State's motion to dismiss. M.R. appeals to this Court, arguing that the Circuit Court should have heard M.R.'s appeal from Juvenile Court. We hold that the Circuit Court erred in granting the State's motion to dismiss M.R.'s appeal of the Juvenile Court's order denying M.R.'s Petition to Vacate. We reverse the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCA/2012/mr_020912.pdf
MARGARET NOVACK v. WILLIAM FOWLER

Court: TCA

Attorneys:

Melanie M. Stewart and Matthew S. Russell, Germantown, Tennessee, for the appellant, William Fowler.

David E. Gordon and Erin L. Hillyard, Memphis, Tennessee, for the appellee, Margaret Novack.

Judge: STAFFORD

This case involves the sufficiency of service of process. After an automobile accident, Plaintiff sued Defendant for personal injuries. Private process server served Defendant's father with the complaint rather than Defendant. The Defendant answered the complaint, raising the defense that there was insufficient service of process as to him. Over a year after the summons had been issued, Defendant moved for summary judgment based on insufficient service of process. The trial court denied summary judgment, finding that the Defendant was evading service. Because we conclude that there was insufficient evidence to find that the Defendant was evading service of process, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2012/novackm_020912.pdf
DAMON A. TATUM V. MERCEDEAS TATUM

Court: TCA

Attorneys:

Elbert Jefferson, Jr., Memphis, Tennessee, for the appellant, Mercedeas Tatum.

Gail Williams Horner, Germantown, Tennessee, for the appellee, Damon A. Tatum.

Judge: PER CURIAM

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

http://www.tba2.org/tba_files/TCA/2012/tatumd_020912.pdf
IN RE: T.W.

Court: TCA

Attorneys:

Dean Hill Rivkin and Brenda McGee; Emily Mack, practicum student attorney; and, Karina Xart, practicum law student; Knoxville, Tennessee, for the appellant, T.W.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Alexander S. Rieger, Assistant Attorney General; for the appellee, the State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the minor child T.W. The Juvenile Court for Knox County ("the Juvenile Court") found T.W. to be an unruly child. T.W. filed a Petition to Vacate Orders and to Dismiss ("Petition to Vacate") regarding the order finding T.W. to be an unruly child. The Juvenile Court denied the Petition to Vacate. T.W. appealed to the Circuit Court for Knox County, Fourth Circuit ("the Circuit Court"). The State of Tennessee ("the State") moved to dismiss the appeal arguing the appeal was untimely. The Circuit Court granted the State's motion to dismiss. T.W. appeals to this Court, arguing that the Circuit Court should have heard T.W.'s appeal from Juvenile Court. We hold that the Circuit Court erred in granting the State's motion to dismiss T.W.'s appeal of the Juvenile Court's order denying T.W.'s Petition to Vacate. We reverse the judgment of the Circuit Court.

http://www.tba2.org/tba_files/TCA/2012/tw_020912.pdf
STATE OF TENNESSEE v. HANES COOPER

Court: TCCA

Attorneys:

Phillip L. Boyd, Rogersville, Tennessee, for the appellant, Hanes Cooper.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; C. Berkeley Bell, Jr., District Attorney General; and Chadwick W. Jackson, District Attorney General, pro tem, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Hanes Cooper, appeals as of right from the trial court's denial of judicial diversion. The Defendant pled guilty to attempted theft of $10,000 or more but less than $60,000, official misconduct, and conspiracy to commit forgery of $10,000 or more but less than $60,000. After the plea agreement was entered, the Defendant filed an application for judicial diversion which the trial court denied. Following the denial of his application for judicial diversion, the Defendant was sentenced, pursuant to the plea agreement, to a six-year term of probation. The Defendant contends that the trial court abused its discretion in denying his application for judicial diversion. Discerning no error, we affirm the trial court, but we remand the case for correction of the judgments.

http://www.tba2.org/tba_files/TCCA/2012/cooperh_020912.pdf
BARRY WAYNE DUNHAM v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

A. Russell Brown, Lafayette, Tennessee, for the appellant, Barry Wayne Dunham.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Robert Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Barry Wayne Dunham, appeals the Macon County Criminal Court's denial of post-conviction relief from his conviction for first degree murder, for which he is serving a life sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2012/dunhamb_020912.pdf
GLEN CURTIS LETSINGER V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Glen Curtis Letsinger.

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General; Randy Nichols, District Attorney General; Steve Sword, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: BIVINS

Glen Curtis Letsinger ("the Petitioner") filed for post-conviction relief from his conviction of rape of a child and the resulting minimum sentence of fifteen years. He alleges that he received ineffective assistance of counsel in conjunction with his guilty plea and that his plea thereby was rendered constitutionally infirm. After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed. Upon our careful review of the record, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2012/letsingerg_020912.pdf
STATE OF TENNESSEE v. LORENZO McLEMORE, III, and MELISSA DENISE GAINES

Court: TCCA

Attorneys:

James O. Martin, III (on appeal) and Dumaka S. Shabazz (at trial), Nashville, Tennessee, for the Defendant-Appellant, Lorenzo McLemore, III.

Joe R. Johnson, II, Springfield, Tennessee, for the Defendant-Appellant, Melissa Denise Gaines.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, 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: MCMULLEN

The Defendant-Appellant, Lorenzo McLemore, III, was indicted by the Davidson County Grand Jury for three counts of attempted first degree murder, one count of especially aggravated burglary, and one count of employment of a firearm during the commission of a dangerous felony. During the first phase of McLemore's bifurcated trial, he was convicted of three counts of attempted voluntary manslaughter, a Class D felony, and the trial court declared a mistrial on the especially aggravated burglary count. During the second phase, the jury found McLemore guilty of employment of a firearm during the attempt to commit a dangerous felony, a Class C felony. The trial court imposed concurrent sentences of four years at thirty percent for the three convictions for attempted voluntary manslaughter and a consecutive sentence of six years at one hundred percent for the conviction for employment of a firearm during the attempt to commit a dangerous felony, for an effective sentence of ten years. On appeal, McLemore argues that the evidence was insufficient to support his conviction for employment of a firearm during the attempt to commit a dangerous felony and that the trial court committed plain error in bifurcating his trial. The other Defendant- Appellant, Melissa Denise Gaines, McLemore's mother, was indicted by the Davidson County Grand Jury for three counts of attempted first degree murder and employment of a firearm during the commission of a dangerous felony. She was subsequently found guilty of three counts of reckless endangerment, a Class A misdemeanor, and the trial court dismissed the firearm charge because the reckless endangerment convictions did not qualify as a dangerous felony for the firearm charge. Gaines argues on appeal that the evidence was insufficient to support her convictions for reckless endangerment. Upon review, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2012/mclemorel_020912.pdf
STATE OF TENNESSEE v. DEXTER MCMILLAN

Court: TCCA

Attorneys:

Dexter McMillan, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Dexter McMillan, filed in the Knox County Criminal Court a motion to reopen his case, which the trial court treated as a petition for post-conviction relief. The trial court dismissed the petition, and the appellant appeals. The State filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review of the record and the parties' briefs, we conclude that the trial court properly dismissed the petition. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2012/mcmilland_020912.pdf
SCOTTY LEE MYERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

D. Mitchell Bryant, Athens, Tennessee, for the appellant, Scotty Lee Myers.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Robert Steven Bebb, District Attorney General; and Stephen Hatchett, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: OGLE

The petitioner, Scotty Lee Myers, was convicted of second degree murder, and he received a sentence of twenty-three years in the Tennessee Department of Correction. Thereafter, he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. The post-conviction court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2012/myerss_020912.pdf
STATE OF TENNESSEE v. CHRISTOPHER VIGIL

Court: TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee, (on appeal), and William L. Francisco, Johnson City, Tennessee, (at trial), for the appellant, Christopher Vigil.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Anthony Clark, District Attorney General; and Janet Hardin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Christopher Vigil, appeals from his conviction for criminally negligent homicide. As a result of the conviction, Appellant was sentenced to two years in incarceration. On appeal, Appellant challenges the sufficiency of the evidence and his sentence. We determine that the evidence was sufficient to support the conviction for criminally negligent homicide where the proof showed Appellant was engaged in conduct that he knew, or should have known, created a substantial and unjustifiable risk to the victim and constituted a gross deviation from the standard of care of an ordinary person under those circumstances and that Appellant's actions proximately caused the victim's death. Further, the trial court properly sentenced Appellant to two years where the record indicated Appellant had a "significant" prior criminal history. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2012/vigilc_020912.pdf
TODAY'S NEWS
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Mortgage settlement to provide $146M for state
Tennessee will participate in the $25 billion agreement with the nation's five largest mortgage servicers, according to Attorney General Bob Cooper. The agreement, announced today, arises from an investigation into unacceptable nationwide mortgage servicing and foreclosure practices. Once approved by the court, the agreement will provide an estimated $146 million in relief to Tennessee homeowners and addresses future mortgage loan servicing practices.
Learn more in the AG's announcement
List of general sessions candidates grows
Six candidates now have applied for appointment to the Hamilton County General Sessions Court. Joining Chief Magistrate Larry Ables and prosecutor Lila Statom in the race are attorneys Bryan Hoss, Lloyd Stanley, Gary Starnes and Patricia Best Vital. Hoss said he is applying as a "caretaker" for the vacancy. If appointed, he has pledged not to seek the position in the August election. He is the only candidate to make such a promise.
Chattanoogan.com reports
Judge Taylor's office searched
Agents with the Tennessee Bureau of Investigation searched the Rogersville law office of Hawkins County Judge James "Jay" Taylor on Wednesday. A state official said the search was tied to an investigation ordered by the local district attorney last August and subsequently turned over to the state attorney general's office.
Read more in Tri-Cities.com
Death row inmates file suit against sodium penthal
The Washington, D.C., office of law firm Sidley Austin LLP has filed suit against the Food and Drug Administration (FDA) on behalf of six death-row prisoners in California, Arizona and Tennessee. The suit is seeking to prohibit the FDA from allowing the importation or use of unapproved sodium thiopental -- an anesthesia drug that is frequently used in executions.
Read more from the law firm
O'Connor pushes civics education in visit
Retired U.S. Supreme Court Justice Sandra Day O'Connor spoke to more than 500 people at MTSU Wednesday evening and used the opportunity to continue her drive for mandatory civics education in schools. Tennessee Supreme Court Justice Janice Holder, who serves as state chair of O'Connor's iCivics program, attended a reception before the speech. See a photo of the two in the Shelbyville Times Gazettet. Rutherford County Circuit Judge Don Ash also was on hand and said he took the opportunity to thank O'Connor for serving as an inspiration for so many lawyers and law students.
The Tennessean has more
Commission rejects fees to fund CASA
A request to add fees to court cases and convictions to pay for the Court Appointed Special Advocates (CASA) program in Loudon County was voted down this week by the county commission. CASA had asked for a $5 fee to be added to all civil and criminal cases and a $45 fee to be added to all convictions to fund its continued operations. Those opposed to the proposal argued it was confusing and unfairly singled out CASA from other non-profit organizations for the benefit.
The News-Herald has more
Election commission to bill city for recall costs
The Hamilton County Election Commission voted Wednesday to bill the city of Chattanooga for expenses associated with the recall effort against Mayor Ron Littlefield. Commission Chairman Mike Walden justified the move, saying "They've known about the problem [with the charter's recall provision] for six years and they've done nothing about it. They've known all about this lawsuit and they've done nothing about it. I think the city should pay this bill rather than all the citizens of Hamilton County." Election Commission Attorney Chris Clem said his expenses have topped $20,000 and are growing.
Chattanoogan.com has more
Napier-Looby Bar names new leaders
The Napier-Looby Bar Association has elected new officers and board members for 2012. Officers are: President David Green, President-Elect John Manson, Recording Secretary Lora Manson, Corresponding Secretary Dannelle Walker, Treasurer Danielle Nellis and Historian Robin Kimbrough. Board members are Past President L. Nicole James, Andrea Perry, William Stover and Brian Winfrey. Members of the Napier-Looby Bar Foundation Board also were named. They are: David Green, Susan Jones, Patrick Norton, William Stover, Rita Roberts-Turner and Kinika Young.
General Assembly News
Track legislation of interest to Tennessee attorneys
The 107th Tennessee General Assembly is now in session and the TBA has a number of tools to help you track the status of legislation. Watch TBA Today for regular news updates and follow the TBA Action List to track bills in the General Assembly that the TBA has a direct interest in -- those it has initiated, taken a position on, or has a policy on. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
Find complete TBA legislative resources
Upcoming
Judicial forum set for Feb. 16
The Nashville Urban Residents Association will host a judicial candidates forum Feb. 16 from 6:30 to 7:30 p.m. at the Nashville Downtown Partnership. On March 6, residents of Davidson County will vote in two judicial primaries -- one for General Sessions Court Division VIII and one for the Third Circuit Court. All candidates have been invited to speak for seven minutes each. For more information about the forum, contact Music Row attorney James Rose at (615) 594-5847 or james@jroseattorney.com.
Download a flyer about the event
UTM to host civil rights conference
The University of Tennessee at Martin will hold its 12th Annual Civil Rights Conference Feb. 20-24. This year's theme is "50 Years after the Civil Rights Movement: Still Separate and Unequal." The keynote address will be given by Michelle Alexander on Feb. 23 at 7 p.m. A graduate of Stanford Law School and Vanderbilt University, Alexander has served as the director of the Racial Justice Project at the ACLU of Northern California and the Civil Rights Clinic at Stanford Law School. She also clerked for U. S. Supreme Court Justice Harry Blackmun and Chief Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit. Other speakers include civil rights activist Ekwueme Michael Thelwell, University of Illinois professor Bill Trent and Memphis actress Florence Roach, who appeared in the recent film "The Help."
Read more from NWTN Today
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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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