Nashville bar sets new date for Law Day celebration

Law Day activities in Nashville that were postponed because of flooding have been rescheduled for June 15. The Nashville Bar Association, Nashville Bar Foundation and Napier-Looby Bar Association will host activities centered around the theme of "Defending Freedom in the Nashville Sit-In Trials." The day will feature lunch in Public Square Park and a reenactment of and panel discussion about the trials that took place 50 years ago during the city's civil rights struggles. Dennis Archer, the first African-American president of the ABA and former mayor of Detroit, will be the keynote speaker.

Learn more or register at the NBA web site

TODAY'S OPINIONS
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LARRY B. BRINTON, JR. v. LISA A. BRINTON

Court: TCA

Attorneys:

Gregory Dye Smith and Rebecca Kathryn McKelvey, Nashville, Tennessee, for the appellant, Larry B. Brinton, Jr.

George Ellis Copple, Jr., Nashville, Tennessee, for the appellee, Lisa A. Brinton.

Judge: BENNETT

Father and Mother divorced in 1989 with the marital dissolution agreement obligating Father to pay all expenses for four years of college and graduate school for both son and daughter. Father refused to pay the entire cost of college for both but did pay $20,000 a year for each, deeming that reasonable. Mother sued. The trial court found that the children's choices of college were reasonable and that Father could afford the college costs. The trial court awarded Mother the costs she incurred in sending the children to college, interest and attorney's fees. Father appealed. We affirm and, based on the attorney fee provision of the MDA, remand for a determination of attorney's fees for Mother on appeal.

http://www.tba2.org/tba_files/TCA/2010/brintonl_052010.pdf


KIMBERLY BYARS v. EARL YOUNG

Court: TCA

Attorneys:

Plaintiff/Appellant Kimberly Byars, Lansing, Michigan, pro se.

Defendant/Appellee Earl Young, Memphis, Tennessee, pro se.

Judge: KIRBY

This is an appeal from a juvenile court custody proceeding. The mother filed a petition for legitimation in the Juvenile Court. The Juvenile Court entered an order finding that the defendant father is the child's natural father, designating the mother as the child's primary residential parent and granting weekend parenting time to the father. After a protracted dispute over parenting time, the Juvenile Court entered an order designating the father to be the child's primary residential parent, with no provision for parenting time for the mother. The mother then appealed to the Circuit Court. After several years of Circuit Court proceedings, the case was transferred to another Circuit Court judge who ultimately entered an order dismissing the appeal. The mother appealed the Circuit Court's order. After remand, the Circuit Court transferred the appeal to the Court of Appeals. We affirm the designation of the father as the primary residential parent but find that the Juvenile Court erred in not providing for parenting time for the mother, and remand the case to the Juvenile Court for entry of an order providing for parenting time for the petitioner mother.

http://www.tba2.org/tba_files/TCA/2010/byarsk_052010.pdf


FRANKE ELLIOTT, ET AL. v. ICON IN THE GULCH, LLC

Court: TCA

Attorneys:

Thomas Henry Peebles, IV, Nashville, Tennessee, for the appellant, Icon in the Gulch, LLC.

Jean Dyer Harrison, Nashville, Tennessee, for the appellees, Franke Elliott, David Haley, Scott Williams, Terry Miller, and Deborah Williams.

Judge: DINKINS

Purchasers of pre-construction condominium units sued the developer seeking rescission of their contracts to purchase the units. The developer filed a motion to compel mediation and/or arbitration pursuant to the contract. The trial court denied the motion and the developer appeals. Finding error, we reverse and remand.

http://www.tba2.org/tba_files/TCA/2010/elliottf_052010.pdf


EARNEST BANKS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, Earnest Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Earnest Banks, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. The petitioner pled guilty to burglarizing a motor vehicle and was sentenced, as a Range II offender, to a term of three years in the Department of Correction. On appeal, the petitioner contends that his guilty plea was not knowingly and voluntarily entered due to the ineffective assistance of counsel. Specifically, he contends that trial counsel placed him in "an untenable position of mounting no defense . . . or waiving his privilege against self-incrimination," based upon trial counsel's refusal to cross-examine witnesses regarding an unidentified third party. Following review of the record, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2010/bankse_052010.pdf


YOLANDA D. BAREFIELD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Yolanda D. Barefield, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The pro se petitioner, Yolanda D. Barefield, appeals the summary dismissal of her petition for post-conviction relief. On appeal, she alleges that she entered an involuntary guilty plea due to the ineffective assistance of counsel. After careful review, we remand to the trial court for appointment of counsel and a hearing regarding the issue of whether the petitioner received ineffective assistance of counsel with regard to her guilty plea to felony escape.

http://www.tba2.org/tba_files/TCCA/2010/barefieldy_052010.pdf


STATE OF TENNESSEE v. CEDRIC ANTONIO CONNER

Court: TCCA

Attorneys:

Darren Kennedy, Chattanooga, Tennessee, for the appellant, Cedric Antonio Conner.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William H. Cox, District Attorney General; and Cameron Williams, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Cedric Antonio Conner, pled guilty in the Hamilton County Criminal Court to aggravated assault and received a six-year sentence. On appeal, he challenges the trial court's refusal to grant him an alternative sentence. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/connerc_052010.pdf


STATE OF TENNESSEE v. TRACY LYNN COPE

Court: TCCA

Attorneys:

Jerry J. Fabus, Jr., Gray, Tennessee, for the appellant, Tracy Lynn Cope.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Deputy District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Tracy Lynn Cope, was convicted of one count of especially aggravated kidnapping, a Class A felony; one count of aggravated kidnapping, a Class B felony; and one count of false imprisonment, a Class A misdemeanor. He was sentenced as a Range II, multiple offender to forty years for the Class A felony, twenty years for the Class B felony, and eleven months and twenty-nine days for the Class A misdemeanor. The sentences were ordered to run concurrently for a total effective sentence of forty years. On appeal, he argues that: the evidence was insufficient to support his convictions; the trial court erred in allowing the victim to testify that the defendant broke his hand by hitting her in the face; trial counsel was ineffective; and he was improperly sentenced. After careful review, we affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2010/copet_052010.pdf


STATE OF TENNESSEE v. PIERRE JACKSON

Court: TCCA

Attorneys:

Robert Brooks, Memphis, Tennessee, for the appellant, Pierre Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Pierre Jackson, was convicted by a Shelby County jury of two counts of aggravated vehicular homicide, two counts of leaving the scene of an accident, and one count of driving on a revoked license, third offense, and was sentenced by the trial court to an effective sentence of fifty-two years, five months, and twenty-nine days. State v. Pierre Jackson, No. W2006-02127-CCA-R3-CD, 2008 WL 2053652, at *1 (Tenn. Crim. App. May 12, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008). In the first direct appeal, this court affirmed his convictions and the trial court's order of consecutive sentencing, but remanded for resentencing of the aggravated vehicular homicide convictions because the trial court erroneously applied an enhancement factor that was not found by the jury. Id. Upon resentencing, the trial court imposed the same sentence. The defendant now appeals, arguing that his sentence is "neither fair nor consistent" with those received by other defendants with similar records and equal moral culpability whose drunk driving by chance does not result in anyone's death. Following our review, we affirm the sentences imposed by the trial court.

http://www.tba2.org/tba_files/TCCA/2010/jacksonp_052010.pdf


MONCELLE VOORHIES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Barry R. Tidwell, Murfreesboro, Tennessee, for the appellant, Moncelle Voorhies..

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and Bill Whitesell, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

On August 13, 2007, Petitioner, Moncelle Voorhies, pled guilty in Rutherford County to sale of cocaine under .5 grams. Petitioner filed a petition for post-conviction relief on August 11, 2008, alleging that his guilty plea was not entered knowingly and voluntarily and that he was afforded ineffective assistance of counsel. Following an evidentiary hearing on the petition, the post-conviction court denied the petition. Petitioner now brings this appeal from the post-conviction court's denial of his petition. After a review of the record and arguments on appeal, we conclude that Petitioner entered his plea knowingly and voluntarily and that he was afforded effective assistance of counsel. Therefore, we affirm the post-conviction court's denial of the petition for post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2010/voorhiesm_052010.pdf


STATE OF TENNESSEE v. LISA WIGGINS

Court: TCCA

Attorneys:

Tracey A. Brewer-Walker, Ripley, Tennessee, for the appellant, Lisa Wiggins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Lisa Wiggins, pled guilty to facilitation of burglary, a Class E felony, and facilitation of theft, a Class A misdemeanor. The trial court sentenced her to an effective sentence of one year of probation and ordered her to pay $4,874 in restitution. On appeal, the defendant argues that the state presented insufficient proof at the restitution hearing of the amount of restitution, and the trial court did not consider the defendant's financial resources and ability to pay. Following our review, we reverse the trial court's order and remand the matter for consideration of the amount of restitution, the defendant's financial resources, and her ability to pay.

http://www.tba2.org/tba_files/TCCA/2010/wigginsl_052010.pdf


STEPHEN WLODARZ v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William Louis Ricker, Greeneville, Tennessee, for the appellant, Stephen Wlodarz.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and J. Douglas Godbee, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

After entering "best interest" guilty pleas in order to avoid a potential death penalty conviction, Petitioner, Stephen Wlodarz, filed a petition for a writ of error coram nobis. The Hawkins County Criminal Court denied the petition. On appeal, Petitioner asserts that the trial court erred in finding there was no newly discovered evidence and that Petitioner failed to demonstrate that his pleas were not knowingly and voluntarily entered. We affirm.

http://www.tba2.org/tba_files/TCCA/2010/wlodarzs_052010.pdf


TODAY'S NEWS

Legal News
Flood Impact
Upcoming
TBA in the News
TBA Member Services

Legal News
Killian nominated for U.S. attorney post
Marion County attorney Bill Killian was nominated this afternoon by President Barack Obama to serve as U.S. attorney for the Eastern District of Tennessee, Knoxnews.com reports. If confirmed by the U.S. Senate, he would replace Republican Russ Dedrick, a longtime prosecutor in the office who is retiring.

SunTrust ATM case results in cy-pres awards
A class action suit brought on behalf of consumers who used SunTrust ATMs during a period of time when the bank did not inform users of transaction fees has been settled. The bank will pay $125,000 in damages. But only one of the would-be beneficiaries -- the lead plaintiff who was charged $5.20 in undisclosed ATM fees -- will benefit. No other class member filed a claim in time. The bulk of the money will go to causes designated by the plaintiff and defendant. Recipients include the new Belmont University College of Law, the Nashville Zoo, Montgomery Bell Academy and the Land Trust for Tennessee.
Read more in the Nashville Post (subscription required)
MBA launches pro bono and volunteer web site
The Memphis Bar Association has introduced a new web site to help local attorneys plug into pro bono and volunteer opportunities. The site lists schedules and details regarding popular pro bono programs such as the Saturday Legal Clinic and Attorney for the Day, as well as information about general community service opportunities. It reports that it launched the resource as a way to help lawyers meet the 50-hour pro bono aspirational goal set out by the state Supreme Court.
Visit the site
Memphis law keeps remnants of building's former life
The new home of the University of Memphis School of Law was once a U.S. Customs House, courthouse and post office. While it has been remodeled significantly to accommodate the law school, it still reflects historic elements from its past. For those interested in seeing these historic features in person, tours of the building are available every first and third Tuesday of the month at noon. Please call Linda Hayes at (901) 678-2103 for more information. Can't make it it Memphis? The Commercial Appeal features an overview of the building's architectural highlights.
Check it out here
Obama calls for federal fix to immigration problem
Confronting the nation's growing frustration over illegal immigration, President Barack Obama today condemned Arizona's approach and pushed instead for a comprehensive federal solution that would include border security, employment and citizenship provisions. The president made the remarks while hosting Mexican President Felipe Calderon at the White House.
Nashville Newschannel 5 has this AP story
Attorney seeks consolidation of oil lawsuits
Louisiana lawyer Daniel Becnel is asking a federal judicial panel to quickly consolidate more than 100 lawsuits filed against British Petroleum and other companies responsible for the massive Gulf oil spill. Becnel argues that legal chaos could break out in five Gulf Coast states if the lawsuits are not combined. Many of the suits are potential class actions that could include tens of thousands of plaintiffs. Suits already have been filed by fishermen, seafood businesses, hotels, restaurants, resorts and other interests claiming economic losses from the oil spill.
The AP reported the news
Flood Impact
Disaster legal hotline now handling non-English calls
Thanks to a partnership between the Legal Aid Society of Middle Tennessee & the Cumberlands and the Tennessee Alliance for Legal Services, the disaster legal assistance hotline set up for storm victims to request legal help is now bilingual. Through use of a service called Language Line -- which is being provided by the Legal Aid Society -- calls coming into the hotline now can be translated into a wide range of languages. The hotline can be accessed by calling (888) 395-9297.

Upcoming
TJC reception set for June 4
In conjunction with the Tennessee Bar Association Convention, the Tennessee Justice Center (TJC) is hosting a reception to showcase its work, celebrate its clients and announce the recipients of its Pro Bono Attorney of the Year Award and Pro Bono Firm of the Year Award. The event will be held Friday, June 4, from 5 to 6:30 p.m. in the Nashville office of Bass, Berry & Sims, located in the Pinnacle Building at 150 Third Avenue South, Suite 2800. In other news, the center recently announced its 2010 "Mothers of the Year" -- six women who, in the midst of their own family's medical crisis, spoke out to help other families during the year.
Read about this year's honorees
TBA in the News
News of TBA award spreads across region
News of the national award recently presented to the Tennessee Bar Association and the several thousand lawyers who donated their time to help bring legal services to the poor has been widely reported across the state and in surrounding regions. Here are a few of the stories about the TBA winning the Harrison Tweed Award: The Memphis Daily News, WHNT, Newschannel 5, WZTV Fox 17, WATE - Newschannel 6 and The Republic.

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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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