Proposal would change merit selection of judges

A plan to rewrite the merit selection feature of the Tennessee Plan surfaced today in an amendment backed by Lt. Gov. Ron Ramsey. The proposal eliminates the nomination of members of the selection commission by various bar groups. Under the plan, each speaker would appoint eight members and the speakers jointly would appoint the 17th member. There would be a minimum of six lawyers and a minimum of three non-lawyers among the commission members. The newly constituted selection commission would offer up five names in case of death or vacancy on appellate courts. The Governor could ask for an additional five for a total of 10 nominees for each vacancy. The commission, which would no longer have access to background check information, would operate under the Sunshine Law, except it would vote by secret ballot.

TBA President Marcy Eason said, "The TBA believes that our current Tennessee Plan for merit selection, evaluation, and retention of judges has served the citizens of Tennessee well. We will continue to advocate for reauthorization of the current plan." President Eason urged lawyers to contact their lawmakers and express their viewpoint at this critical juncture.
TODAY'S OPINIONS
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MISTY NANETTE BROOKS v. STEPHEN EARL BROOKS

Court: TCA

Attorneys:

Stephen Earl Brooks, pro se Appellant.

Camellia Saunders, Knoxville, Tennessee, for the Appellee, Misty Nanette Brooks.

Judge: SWINEY

In August of 2007, Misty Nanette Brooks ("Wife") obtained an order of protection from Stephen Earl Brooks ("Husband") following a hearing before the Trial Court. Husband was not present at the hearing. On appeal, Husband claims it was his attorney's fault that he was not present at the hearing. We note, however, that Husband did not file a Tenn. R. Civ. P. 60 motion for relief from the judgment with the Trial Court, and Husband ascribes no particular error to the Trial Court's judgment based on the proof presented at the hearing. Further, this Court has not been provided either a transcript from the hearing or a statement of the evidence. Accordingly, the judgment of the Trial Court is affirmed.

http://www.tba2.org/tba_files/TCA/2008/brooksm_042308.pdf


KEVIN LEE FULFORD v. TRICIA LYNN FULFORD

Court: TCA

Attorneys:

Thomas F. Bloom, Nashville, TN, for Appellant.

John D. Schwalb, Franklin, TN, for Appellee.

Judge: HIGHERS

This is a divorce case involving several issues, including questions concerning the distribution of the marital debt, the award of alimony, and specific provisions in the parenting plan. We affirm the trial court's division of the marital debt. We modify the alimony award to an award of transitional alimony and hereafter reduce the amount to $2,000 a month for four years. We vacate the portion of the order requiring Father to continue regular counseling. We affirm the order as it pertains to Father's visitation and Mother's decision-making authority. We decline to award Wife her attorney's fees on this appeal.

http://www.tba2.org/tba_files/TCA/2008/fulfordk_042308.pdf


STATE OF TENNESSEE EX REL. BILLIE MARTIN v. GREGORY KALMON

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, and Juan G. Villase_or, Assistant Attorney General, Nashville, Tennessee, for the Appellant, State of Tennessee ex rel. Billie Martin.

J. Terry Holland, Knoxville, Tennessee, for the Appellee, Gregory Kalmon.

Judge: SWINEY

This Uniform Interstate Family Support Act ("UIFSA") case was dismissed by the Trial Court after it concluded that it lost subject matter jurisdiction to proceed with this case once a voluntary dismissal was taken in the initiating tribunal in Maryland. The Trial Court concluded that the present case also must be dismissed because there had been at least two previous voluntary dismissals and the dismissal by the Maryland tribunal operated to bar the present case pursuant to Tenn. R. Civ. P. 41.01(2). We hold that the Trial Court retained subject matter jurisdiction notwithstanding the voluntary dismissal of the petition by the initiating tribunal. We further conclude that the present case is not barred by the provisions of Tenn. R. Civ. P. 41.01(2). Accordingly, the judgment of the Trial Court is vacated and this cause is remanded for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2008/martinb_042308.pdf


PROGRESS PRINTING COMPANY, INC. v. RELIABLE PRINTING & GRAPHIC DESIGN, INC.

Court: TCA

Attorneys:

Dudley W. Taylor and Jonathan S. Taylor, Knoxville, Tennessee for the Appellant, Reliable Printing & Graphic Design, Inc.

Preston A. Hawkins, Knoxville, Tennessee for the Appellee, Progress Printing Company, Inc.

Judge: SWINEY

Progress Printing Company, Inc. ("Plaintiff") filed a petition in the Circuit Court for Sevier County, Tennessee ("Trial Court") seeking to domesticate a foreign judgment obtained in Virginia against Reliable Printing & Graphic Design, Inc. ("Defendant"). Defendant filed a motion to dismiss the petition claiming, in part, that the Virginia court lacked personal jurisdiction over Defendant and, therefore, the Virginia judgment is void. The Trial Court entered an order on June 7, 2007, inter alia, denying Defendant's motion to dismiss the petition, and granting Plaintiff's petition to domesticate the Virginia judgment. Defendant appeals to this Court. We affirm the denial of the motion to dismiss the petition, vacate that portion of the Trial Court's order granting Plaintiff's petition to domesticate the Virginia judgment, and remand to the Trial Court for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/progressprinting_042308.pdf


IN THE MATTER OF R. R. B.

Court: TCA

Attorneys:

B. Kyle Sanders, Dickson, Tennessee, for the appellant, H. B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services.

Judge: CLEMENT

Mother appeals the termination of her parental rights to her nine-year-old child. Her parental rights were terminated on several grounds, including abandonment by failure to provide a suitable home, substantial noncompliance with permanency plan, failure to remedy persistent conditions, and mental incompetence. The trial court also found that termination of Mother's parental rights was in the child's best interest. We affirm the termination of Mother's parental rights based upon Mother's failure to remedy persistent conditions and the best interest of the child.

http://www.tba2.org/tba_files/TCA/2008/rrb_042308.pdf


STATE OF TENNESSEE v. GERALD GIFFORD

Court: TCCA

Attorneys:

John Allen Brooks, Chattanooga, Tennessee, for the Appellant, Gerald Gifford.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William H. Cox, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Gerald Gifford, appeals the Hamilton County Criminal Court's order denying his motion to compel expungement of criminal charges, which was filed after the successful completion of the imposed diversionary period. Under the terms of a plea agreement, Gifford pled guilty to three counts of Class E felony reckless endangerment and to one count of DUI, which were unrelated but permissibly joined in a single indictment. As provided by the plea agreement, Gifford was sentenced to eleven months and twenty-nine days, with jail service of forty-eight hours for the DUI. The proceedings for felony reckless endangerment were deferred for a period of one year, in conjunction with one year of supervised probation, as provided by the judicial diversion statute. After completion of the probationary period, Gifford requested expungement of the three reckless endangerment charges. Although unopposed by the District Attorney's office, the trial court denied expungement relying upon a 2006 Attorney General's opinion, which opined that, under the amended provisions of Tennessee Code Annotated section 40-32-101(a)(1) (2003), when a defendant is convicted of at least one count in a multi-count indictment, expungement of the records relating to all remaining counts in the indictment is precluded. In sum, the trial court held that because Gifford was convicted of DUI, expungement of the reckless endangerment charges was not permitted, notwithstanding successful completion of the diversion period. After review, we conclude that the provisions of Tennessee Code Annotated section 40-32-101(a)(1), while clearly prohibiting expungement of the greater indicted offense when a defendant is convicted of a lesser offense within the same count, does not preclude expungement of all other counts in the indictment. Moreover, we conclude that because the amended provision of Tennessee Code Annotated section 40-32-101(a)(1) requires that a defendant be "convicted of any offense or charge," (emphasis added), the amended provision has no application to the expungement of records in a program of diversion. Accordingly, we remand to the trial court for entry of an order requiring expungement of all records relating to the three reckless endangerment charges.

http://www.tba2.org/tba_files/TCCA/2008/giffordg_042308.pdf


STATE OF TENNESSEE v. LISA DURBIN HOWARD
Corrected Opinion


Court: TCCA

Attorneys:

Larry D. Wright, Assistant Public Defender, Cleveland, Tennessee, for the Appellant, Lisa Durbin Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Steven Bebb, District Attorney General; and John R. Bledsoe, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WELLES

A jury found the Defendant, Lisa Durbin Howard, guilty of first degree premeditated murder, and the trial court sentenced her to life imprisonment. In this delayed appeal, she presents seven issues for our consideration: (1) whether the evidence was sufficient to support her conviction; (2) whether comments made by the trial court to the jury as it deliberated were improper; (3) whether the trial court erred by disallowing expert testimony proffered by the Defendant regarding her experiences with domestic violence; (4) whether it was plain error for the trial court not to address the State's striking of the only African-American of the venire; (5) whether alleged juror misconduct deprived the Defendant of her right to a fair and impartial jury; (6) whether the trial court abused its discretion by not individually polling the jury; and (7) whether the State's failure to properly preserve the recordings of the preliminary examination, contrary to Tennessee Rule of Criminal Procedure 5.1(a), required the trial court to remand the case to the general sessions court. Following our review of the appellate record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/howardl_corr_042308.pdf


STATE OF TENNESSEE v. CHARLES W. MCCALEB

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee for the appellant, Charles W. McCaleb.

Robert E. Cooper, Jr., Attorney General & Reporter; Jennifer L. Smith, Assistant Attorney General, and Ron Davis, District Attorney General; and Michael J. Fahey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Charles W. McCaleb, was indicted by the Hickman County Grand Jury for aggravated assault and assault. After a jury trial, Appellant was acquitted of aggravated assault in Count One and convicted of assault by offensive touching in Count Two. As a result, the trial court sentenced Appellant to six months in jail. The trial court ordered Appellant to serve forty-five days in incarceration and the remainder of the sentence was suspended and Appellant was placed on probation. On appeal, Appellant argues that the evidence was insufficient and that his sentence is excessive. We affirm the judgment of the trial court because the evidence is sufficient to support the conviction for simple assault by offensive touching and the trial court properly sentenced Appellant.

http://www.tba2.org/tba_files/TCCA/2008/mccalebc_042308.pdf


STATE OF TENNESSEE v. CHRISTINE H. OSBORNE

Court: TCCA

Attorneys:

Adam Wilding Parrish, Lebanon, Tennessee, for the appellant, Christine H. Osborne.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Howard Lee Chambers and Jason Lee Lawson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Christine Osborne, was convicted of attempted aggravated child neglect, a Class C felony, by a Wilson County Criminal Court jury. See T.C.A. Sections 39-12-101 (attempt); 39-15-402 (2004) (amended 2005) (aggravated child neglect); 39-15-401 (2004) (amended 2005, 2006) (child neglect). The defendant was sentenced to six years in the Department of Correction as a Range I, standard offender. In this appeal, the defendant challenges the sentence imposed. We hold that the trial court erred in sentencing the defendant, and pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), we modify the defendant's sentence to a term of three years and six months.

http://www.tba2.org/tba_files/TCCA/2008/osbornec_042308.pdf


STATE OF TENNESSEE v. CHARLES E. SHIFFLETT, SR.

Court: TCCA

Attorneys:

Stephen M. Wallace, Blountville, Tennessee, for the appellant, Charles E. Shifflett, Sr.

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

Judge: MCLIN

The defendant, Charles E. Shifflett, Sr. was indicted on charges of first degree murder, first degree murder in the perpetration of a robbery, and robbery. The defendant was convicted of the charged offenses, and the defendant's two first degree murder charges were merged into one sentence. The trial court imposed a life sentence for the merged first degree murder conviction. The defendant was sentenced to three years for the robbery conviction and his sentence was ordered to run concurrently with his life sentence. On appeal, the defendant argues that (1) the trial court erred by not dismissing his case on the grounds that the prosecution was barred by the Double Jeopardy Clause of the United States and Tennessee Constitutions; (2) the trial court erred by denying his motion to suppress the defendant's statements to police officers, (3) the trial court erred by denying the defendant's request for a special jury instruction, and (4) there was insufficient evidence to support the defendant's conviction for first degree murder. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/shifflettc_042308.pdf


STATE OF TENNESSEE v. HAROLD KAY SMITH

Court: TCCA

Attorneys:

Brenda S. Bramlett, Shelbyville, Tennessee, for the appellant, Harold Kay Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Harold Kay Smith, appeals from the Bedford County Circuit Court's judgment of conviction of driving on a revoked license (DRL), second offense. He challenges the sufficiency of the evidence, but we affirm the circuit court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/smithh_042308.pdf


FRANK E. TEASLEY v. JACK MORGAN, WARDEN

Court: TCCA

Attorneys:

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for the appellant, Frank E. Teasley.

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

Judge: GLENN

The petitioner, Frank E. Teasley, appeals from the trial court's denial of his petition for habeas corpus relief, arguing that his sentence was imposed in contravention of the United States Supreme Court's ruling in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). However, because the petitioner has failed to comply with the procedural requirements for filing a petition for habeas corpus relief, and because Blakely error is not a cognizable ground for habeas corpus relief, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/teasleyf_042308.pdf


STATE OF TENNESSEE v. LOUIS E. WHITECOTTON

Court: TCCA

Attorneys:

Joseph F. Harrison, Assistant Public Defender, for the appellant, Louis E. Whitecotton.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and B. Todd Martin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Louis E. Whitecotton, was convicted of failure to timely register as a violent sexual offender, a Class E felony, and sentenced to three years in the Department of Correction. On appeal, he argues that the trial court erred in denying alternative sentencing. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/whitecottonl_042308.pdf


Cost of Terminating Interest Rate Swap Agreement as Expense of Refunding

TN Attorney General Opinions

Date: 2008-04-23

Opinion Number: 08-95

http://www.tba2.org/tba_files/AG/2008/ag_08_95.pdf

TODAY'S NEWS

Legal News
Legislative News
Disciplinary Actions
Passages
TBA Member Services

Legal News
Lobbyists fined for not submitting reports; fines possible for skipping training
Tennessee Ethics Commission members yesterday recommended the maximum fine of $750 for three groups that have not filed lobbyist expenditure reports. Earlier this week the commission identified 25 groups that had not submitted reports on Nov. 15 as required by state law. By yesterday, 22 of the groups had filed. Also this week, the commission recommended fines for lobbyists who fail to attend mandatory ethics training. There are no current sanctions for individuals who do not complete the requirement, the the Memphis Daily News reported.

Knox Commission still unclear on open meetings ruling
Knox County commissioners want additional clarification of last year's court order forbidding them to violate the state Open Meetings Act, but after considering a request to the ruling's author, Chancellor Daryl R. Fansler, they instead have asked County Law Director John Owings to do it. For his part, Owings said the ruling was clear: commissioners may talk among themselves about anything they want, except those issues that will come before them for a vote.
The News Sentinel reports
Judge's charitable ruling backfires
When Davidson County Circuit Court Judge Hamilton Gayden presided over a case involving stockholders in a class action suit, he wanted someone other than just the attorneys to benefit. He therefore ordered the lawyers to donate $400,000 of their fees to the Nashville Public Benefit Foundation (to purchase Nashville Predator hockey tickets for underprivileged children) and $100,000 to the Legal Aid Society. While the attorneys initially agreed to the plan, they later rethought the idea. Now, an advisory opinion from the state Board of Professional Responsibility urges the attorneys to appeal the order if they believe it violates ethical responsibilities.
Read about it in the Tennessean
Mishaps hit two judicial facilities
The Davidson County criminal court clerk's office was four inches under water yesterday from a faulty sprinkler leak that damaged at least 10 computers, though no court files were affected. More than two-dozen firefighters worked to save equipment and drain water from the office in Nashville's A.A. Birch Building, according to the Tennessean.

In Bradley County, a traffic accident yesterday morning disrupted telephone service to the county judicial center for several hours -- leaving the sheriff's office, jail and courts without access to incoming or outgoing calls. Chattanooga's News Channel 9 reported that news.

10 things you may not know about Justice Wade
Knoxville Talks recently caught up with Tennessee Supreme Court Justice Gary Wade and asked a range of questions -- from Sevierville's best-kept secret (answer: Dolly Parton wears wigs) to his personal philosophy for life.
Read the interview here
New MALS board president named
Memphis lawyer Paul Morris, a partner with Martin, Tate, Morrow & Marston, has been elected president of the board of Memphis Area Legal Services (MALS). He previously served as a board member for four years, the Memphis Commercial Appeal reports.

Memphis mayor won't pursue superintendent spot
Memphis Mayor Willie Herenton made it clear this week he no longer has an interest in applying for Memphis City Schools superintendent. He had informally thrown his hat in the ring for the spot last month.
The Commercial Appeal has more
Legislative News
Proposed ban on DUI defense advertising draws fire
Speaker Pro Tem Rosalind Kurita's efforts to ban attorneys from advertising that they specialize in DUI cases has drawn fire from some opponents, who say the proposal raises serious First Amendment issues.
Read the arguments in the Nashville City Paper
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Disciplinary Actions
California lawyer reinstated
Martha Joiner King of Encinitas has been reinstated to the practice of law in Tennessee after paying delinquent BPR fees and penalties.

Passages
Former Murfreesboro mayor dies Tuesday at 87
Former Murfreesboro mayor Joe B. Jackson died Tuesday. He will be remembered for a public career that spanned 30 years, including service as a city councilman, vice mayor and the city's longest serving mayor. After returning from a tour of duty in World War II, Jackson used the GI Bill to attend law school. He graduated from the Nashville School of Law and passed the Tennessee bar exam, but decided to pursue a career in the construction industry. Visitation will be held Friday from 2-8 p.m. and funeral services will be held Saturday at 10 a.m. at Woodfin Memorial Chapel. Burial will be in Evergreen Cemetery.
Read more about Jackson's life in the Murfreesboro Post
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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