Corporate counsel show strong support for pro bono

Support from Tennessee corporations and corporate counsel has produced more than $200,000 for pro bono efforts over the past four years, and the 2011 Corporate Counsel Pro Bono campaign is off to a strong start. Three firms have already committed close to $20,000 for the 5th Annual Corporate Counsel Pro Bono Initiative Gala, slated for March 26 in Nashville. International Paper is again a lead sponsor for the event with a $10,000 commitment, while BlueCross BlueShield of Tennessee has committed $5,000 and Wyatt, Tarrant & Combs, LLP has pledged $3,000.

Learn more sponsorship opportunities for the event

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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ROBERT EDWARDS, ET AL. v. CITY OF MEMPHIS, ET AL.

Court: TCA

Attorneys:

Robert A. Wampler, Memphis, Tennessee, for the appellants, Robert Edwards, Paul Keating, Jeff Todd, Ken Roach, Jimmie L. Daniels, Otis Anderson, Jr., and Harrison Garrison.

Louis P. Britt, III and Emily B. Bjorkman, Memphis, Tennessee, for the appellees, City of Memphis and Larry Godwin, Director of Police Services for the City of Memphis.

Judge: STAFFORD

Appellants, police officers with the Memphis Police Department, filed suit against the City and the Director of Police Services, claiming that the City violated Memphis City Charter Section 67 by failing to promote the officers to the rank of Captain after thirty years of service. The trial court entered summary judgment in favor of the City, and the officers appeal. Finding that the relevant case law clearly establishes: (1) that Appellants have no legal right to work as Captains, a rank that no longer exists; (2) that the City's decision to abolish this rank for operational purposes was not discriminatory; and (3) that Section 67 of the City Charter is a retirement tool and not a guarantee of employment, we affirm.

http://www.tba2.org/tba_files/TCA/2010/edwardsr_111210.pdf


CYDNIE B. O'ROURKE v. JAMES P. O'ROURKE

Court: TCA

Attorneys:

Cynthia A. Cheatham, Manchester, Tennessee, for the appellant, Cydnie Browning O'Rourke.

Helen Sfikas Rogers, Lawrence J. Kamm, Nashville, Tennessee, for the appellee, James Patrick O'Rourke.

A. Gregory Ramos, Nashville, Tennessee; Thomas C. Means, Michelle A. Jones, Phillip D. Mancini, Washington, D.C., for Amici Curiae, Domestic Violence Legal Impowerment and Appeals Project, et al.

Judge: COTTRELL

In the last proceeding in this protracted post-divorce litigation, the trial court transferred custody, or primary residential placement, of three children of a divorced couple from the mother to the father. In this consolidated appeal, the mother claims that the trial court erred in a number of ways. However, a number of her arguments relate to orders or actions that have been rendered moot by the final order, including her challenges to the use of a "parenting coordinator." As to the final order modifying residential placement, we hold that the trial court did not err in declining to use Tenn. Code Ann. section 36-6-406 to limit the father's visitation with the children and that the court acted within its discretion in limiting the testimony of Mother's expert witness as a discovery sanction. We also hold that the trial court's award of $330,000 in attorney fees to the father was not error. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2010/orourkec_111210.pdf


DONNA SHEDD, ET AL. v. COMMUNITY HEALTH SYSTEMS, INC., ET AL.

Court: TCA

Attorneys:

Paul A. Bates, Lawrenceburg, Tennessee, for the appellant, Larry Dwayne Woods

Michael G. Sheppard, Matthew E. Wright, Perry A. Craft, Brentwood, Tennessee, for the appellee, Donna Shedd

Judge: HIGHERS

Father seeks to intervene in the wrongful death action filed by Mother for the death of the parties' daughter. The trial court found Father waived his right to intervene through inaction. We find the trial court abused its discretion in declaring Father's motion untimely, and therefore, we vacate the order denying Father's motion to intervene, and we remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2010/sheddd_111210.pdf


STATE OF TENNESSEE v. LINDSEY RAY BUTLER

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Lindsey Ray Butler.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Michel T. Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Lindsey Ray Butler, was indicted by the Maury County Grand Jury in a one-count indictment for possession of marijuana with intent to sell in violation of Tenn. Code Ann. section 39-17-417(a)(4)(g)(1). Following a jury trial, Defendant was convicted of the lesser included offense of simple possession of marijuana, and the judgment reflects that he was sentenced by the trial court to serve 11 months and 29 days, consecutive to a five-year sentence he is currently serving. In this direct appeal, Defendant challenges the legality of a search of his residence. Finding no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/butlerl_111210.pdf


STATE OF TENNESSEE v. JERMAINE MITCHELL GRAY

Court: TCCA

Attorneys:

Joseph T. Howell, Jackson, Tennessee, for the appellant, Jermaine Mitchell Gray.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Madison County jury convicted the defendant, Jermaine Mitchell Gray, of aggravated robbery, a Class B felony. The trial court sentenced the defendant as a Range I, standard offender to twelve years in the Tennessee Department of Correction. On appeal, the defendant contends that (1) the trial court erred by denying his motion to suppress his confession to police; (2) the evidence was insufficient to support his conviction; and (3) his sentence is excessive. Following our review, we conclude that there is no reversible error and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/grayj_111210.pdf


JOHNNY LEE LEWIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Johnny Lee Lewis, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William E. Gibson, District Attorney General; and Lisa Zavagiannis, District Attorney General, Tennessee, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Petitioner, Johnny Lee Lewis, was convicted of two counts of facilitation of second degree murder, a Class B felony, and one count of aggravated arson, a Class A felony. See Tenn. Code Ann. sections 39-11-403, -13-210, -14-302. This Court affirmed his convictions on direct appeal. See State v. Johnny Lee Lewis, No. M2002- 01350-CCA-R3-CD, 2003 WL 22398394 (Tenn. Crim. App., Nashville, Oct. 21, 2003). The Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner contends that the post-conviction court erred in denying him relief because: (1) trial counsel failed to request that the jury be sequestered; (2) trial counsel failed to interview and present witnesses; (3) trial counsel failed to object, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), to the use of enhancement factors during the Petitioner's sentencing hearing; (4) trial counsel failed to object, based on the Confrontation Clause, to testimony regarding a co-conspirator's statements; and (5) the cumulative effect of trial counsel's errors denied him a fair trial. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2010/lewisj_111210.pdf


ANDRE L. MAYFIELD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ronald C. Small, Nashville, Tennessee, for the appellant, Andre L. Mayfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Andre L. Mayfield, filed a petition for writ of error coram nobis, challenging his convictions for aggravated robbery, aggravated rape, rape, and two counts of aggravated kidnapping based on newly discovered evidence. The coram nobis court summarily dismissed the petition without a hearing. Petitioner appeals. We determine that the coram nobis court properly dismissed the petition after finding that the "newly discovered" evidence relied upon by Petitioner would have provided "insignificant assistance to the defense of the charges" had it been presented at trial. Accordingly, the judgment of the coram nobis court dismissing the petition is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/mayfielda_111210.pdf


STATE OF TENNESSEE v. DIONIS NICK PAPA

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Dionis Nick Papa.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jenny McMillen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The defendant, Dionis Nick Papa, appeals the sentencing decision of the Davidson County Criminal Court. Because the record supports the trial court's ordering a sentence of confinement, we affirm.

http://www.tba2.org/tba_files/TCCA/2010/papad_111210.pdf


STATE OF TENNESSEE v. KELVIN REED

Court: TCCA

Attorneys:

Robert Brooks, Memphis, Tennessee (on appeal); and Robert Wilson Jones, District Public Defender; Michael J. Johnson, Assistant Public Defender; Amy Mayne, Assistant Public Defender; and Phyllis Aluko, Assistant Public Defender, Memphis, Tennessee (at trial) for the appellant, Kelvin Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; Patience Branham, Assistant District Attorney General; and Jeff Jones, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Kelvin Reed, was convicted of first degree premeditated murder, felony murder, and aggravated burglary. The trial court merged the offenses of first-degree murder and felony murder, and Defendant was sentenced to serve concurrent sentences of life imprisonment for his murder conviction and three years for aggravated burglary. On appeal, Defendant argues that (1) the evidence is insufficient to support his convictions; (2) the trial court erred in admitting certain evidence, including testimony about the music played at Defendant's birthday party, testimony that one witness had seen Defendant with a gun, and photographs of the victim; and (3) that the judgment for aggravated burglary should be corrected to reflect Defendant's actual sentence. Following review, we affirm the convictions and remand to the trial court solely for entry of a corrected amended judgment for aggravated burglary in accordance with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/reedk_111210.pdf


STATE OF TENNESSEE v. KANE STACKHOUSE

Court: TCCA

Attorneys:

Richard R. Gaines, Knoxville, Tennessee, for the appellant, Kane Stackhouse.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Kane Stackhouse, aggrieved of his Knox County Criminal Court jury convictions of first degree felony murder, second degree murder, and especially aggravated robbery, for which he received an effective sentence of life imprisonment plus twenty years, appeals contending that the trial court erred in overruling his motion to suppress his statements. We discern no error regarding the motion to suppress; however, we conclude, via plain error, that the trial court erred by failing to merge the second degree murder conviction into the merged convictions of first degree felony murder. Accordingly, we vacate and remand for the verdict of second degree murder to be merged into the judgment of first degree felony murder. In all other respects, the judgments of conviction are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/stackhousek_111210.pdf


LAMARIO SUMNER a/k/a LAMARIO FLEMING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellant, Lamario Sumner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; William L. Gibbons, District Attorney General; and Byron B. Winsett, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Larmio Sumner a/k/a Lamario Flemming, appeals the post-conviction court's dismissal of his petition for post-conviction relief in which he alleged the ineffective assistance of trial counsel. Specifically, Petitioner contends that trial counsel's assistance was ineffective because he failed to (1) request a jury instruction on aggravated assault as a lesser included offense of each count charged in the indictment; and (2) appeal the trial court's imposition of consecutive sentencing. After a thorough review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/sumnerl_111210.pdf


TODAY'S NEWS

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Legal News
Kernell sentenced to year and day for Palin email invasion
David Kernell, the former University of Tennessee student who delved into Sarah Palin's private e-mail account in 2008, was sentenced today to serve a year and a day for his crime. U.S. District Judge Thomas Phillips recommended that his time be served at a Knoxville halfway house, acknowledging that the U.S. Bureau of Prisons could override that idea. Phillips said Kernell's actions in 2008 merited some form of imprisonment not because his victim was a prominent political figure but because what he did threatened "the expectation of privacy that we all have."
The News Sentinel has more
Memphis paper suing FBI over civil rights era spying
The Commercial Appeal is suing the FBI over access to documents about civil rights era photographer Ernest Withers and his reported domestic surveillance work for law enforcement authorities. The paper, represented by Holland & Knight, wants the FBI to produce Withers' informant file and photographs he submitted to the bureau. Lawyer Charles Tobin said "serious questions remain about the government's motives and actions in spying on the civil rights movement."
The Blog of Legal Times tells you more
Lawyer to be inducted into sports hall of fame
Knoxville lawyer and juvenile court judge Timothy Edward Irwin was among 11 new inductees announced this week by the Tennessee Sports Hall of Fame. The former University of Tennessee and Minnesota Vikings football player will be recognized along with others at a Feb. 11 banquet in Nashville. After completing his professional career, Irwin returned to Knoxville to attend the University of Tennessee College of Law. He earned his law degree in 1990 and maintained a private law practice until 2005 when he was appointed to his current position of Knox County juvenile judge.
Read more about Irwin on Chattanoogan.com
LSC, Red Cross to help disaster victims
The Legal Services Corporation (LSC) and the American Red Cross have renewed an agreement to cooperate in the delivery of services to victims of natural disasters. Under the arrangement, which was originally signed in 2008, LSC-funded legal aid programs will have access to Red Cross Service Delivery sites in order to provide legal counseling to disaster victims. The agreement also stipulates that LSC and the Red Cross will keep in close contact regarding natural disasters, pre-disaster planning and disaster response activities. The agreement is non-binding and will expire in two years, but may be renewed at that time. The LSC reported the news.
Download the agreement
Firing for Facebook post may be overreach
A company that fired a woman for complaining about her boss on Facebook may find itself afoul of labor laws. American Medical Response of Connecticut Inc. fired Dawnmarie Souza for criticizing her boss on her Facebook page, then trading messages with other employees. But an attorney with the National Labor Relations Board said such conversation equates to "water cooler" talk and should be protected.
Learn more from the Nashville Business Journal
Court will not hear case of woman shackled during labor
The U.S. 6th Circuit Court of Appeals refused to review Juana Villegas deportation order and ruled that her claims failed on the merits in an opinion, released earlier this week. Villegas, a pregnant immigrant, drew national attention when she was shackled to a Nashville hospital bed during part of her labor. She was pulled over and arrested for driving without a license in July 2008, and gave birth while in custody. Her lawyer, Elliott Ozment, said their next move is to seek a hearing with the entire panel of judges from the 6th Circuit.
The Tennessean has the story
Upcoming
Conference on life and work of Howard Baker next week
A conference examining the career of Howard H. Baker Jr. will bring together noted scholars and journalists from around the country on Nov. 16-17 at the Howard H. Baker Jr. Center for Public Policy on the campus of the University of Tennessee, Knoxville. The conference, which is free and open to the public, will explore topics ranging from Sen. Baker's role in the Senate Watergate Committee's investigation to the service rendered by Sen. Baker as Senate minority and majority leader, President Richard Nixon's overtures to Sen. Baker as a possible successor to U.S. Supreme Court Justice John Marshall Harlan, and Sen. Baker's tenure as White House chief of staff to President Ronald Reagan.
Learn more from UT
Chattanooga Young Lawyers host BBQ fundraiser for CASA
The Young Lawyers Division of the Chattanooga Bar Association is throwing a Barristers, Beer and Bar-B-Q to raise funds for its Backpack Project for Court Appointed Special Advocates. The affair is Nov. 18 at Museum Bluffs Parkview condominiums, located by Walnut Street Bridge, beginning at 5:30 p.m. To buy tickets, call Jason Demastus, president of the CBA Young Lawyers at 423-622-4535 or the Chattanooga Bar Association at 423-756-3222. Or, you can donate a new backpack valued at $25 or more. The backpacks will be given to children for whom CASA will be providing advocacy, and might come with a coloring book that explains what CASA does and what guardians do, in an effort to help children understand what's taking place.
The Hamilton County Herald has more details
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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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