House Judiciary Summer Study hears from TBA

The Tennessee General Assembly House Judiciary Committee heard testimony on a number of legislative proposals yesterday and today, including a bill involving registration of private process servers.

Meeting in Nashville, the committee took up complex matters that had been placed on its Summer Study agenda so they could be addressed away from the hurly-burly of the regular session. The TBA had been asked to present testimony on legislation that would establish a registration regime for private process servers. TBA Executive Director Allan Ramsaur testified that current practice under the rules of civil procedure and the statutory provisions for the limited jurisdiction courts provides adequate oversight for service of process, and that no new regulatory or registration schemes are needed.
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Court: TCA


Kim Brown, Pro Se.

Michael G. McLaren and Robert B. Shappley, Memphis, Tennessee, for the appellee, William Shappley, M.D.


In light of the foregoing, we affirm dismissal of Mr. Brown's action based on the doctrine of res judicata. We reverse the trial court's imposition of Rule 11 sanctions against Mr. Brown, however, and the attendant award of attorney's fees to Dr. Shappley. In so doing, we observe that, except for his right to apply for permission to appeal our decision here to the Tennessee Supreme Court, Mr. Brown has exhausted all avenues of ligation against Dr. Shappley with respect to the events of March 2005. Exercising our discretion, costs of this appeal are taxed to the Appellant, Kim Brown.


Court: TCA


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

Shawn P. Sirgo, Nashville, TN, for Appellee.


This is a divorce case. Wife/Appellant appeals the trial court's (1) failure to include certain funds from a family partnership in Husband/Appellee's gross income for purposes of child support, (2) deviation from the parties' proposed parenting plan in scheduling visitation, (3) granting Husband/Appellee a credit against his child support arrears for private school tuition, laptop computer, and orthodontia, and (4) denying Wife/Appellant's request for her attorney's fees. We affirm in part, reverse in part, and remand to the trial court for further proceedings.


Court: TCCA


Claudia S. Jack, District Public Defender, and Robin Farber and Michelle Vanderee, Assistant Public Defenders, for the appellant, Ronald Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; T. Michel Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney General, for the appellee, State of Tennessee.


Ronald Steven Brown, the defendant, was convicted of the following offenses under four separate indictments: No. 14233, attempted first degree murder (Class A felony); No. 14232, attempted second degree murder (Class B felony) and assault (Class A misdemeanor); No. 14235, aggravated assault (Class C felony); and No. 14231, felony evading arrest (Class E felony) and DUI, first offense (Class A misdemeanor). The defendant was sentenced as a standard offender to an effective sentence of forty-three years, consecutive to a ten-year federal sentence. On appeal, the defendant alleges error in four areas: (1) The failure of the State court reporter to preserve transcripts of the pretrial motions and sentencing hearing violated his right of due process: (2) The trial court imposed an excessive sentence; (3) The trial court permitted the State to amend an indictment over his objection after the jury was sworn; and (4) He was sentenced in violation of Gomez v. Tenn., 127 S. Ct. 1209 (2007). After careful review, we conclude that the defendant is not entitled to any relief and affirm the judgments from the trial court.


Court: TCCA


Stephen Ross Johnson, Ritchie, Dillard & Davies, Knoxville, Tennessee, for the appellant, Margo Freshwater.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General, and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Margo Freshwater, again seeks relief from the trial court's denial of her petition for writ of error coram nobis. In an earlier appeal, after determining that Petitioner's petition for writ of error coram nobis was not barred by the statute of limitations, this Court remanded the matter to the trial court for an evidentiary hearing on the petition. See Freshwater v. State, 160 S.W.3d 548, 558 (Tenn. Crim. App. 2004). In that hearing on remand, Petitioner was to be given "the opportunity to establish that there is a 'reasonable probability' that the newly discovered evidence may have resulted in a different judgment if the evidence had been admitted at the previous trial." Id. Petitioner was also required to establish that she was "without fault in failing to present the newly discovered evidence at the appropriate time." Id. After conducting the evidentiary hearing on remand, the trial court denied the petition. The trial court ruled that this Court had already made the determination that Petitioner was without fault in failing to discover and present the evidence at the appropriate time. Further, the trial court determined that Petitioner failed to demonstrate that the presentation of the suppressed exculpatory evidence "would have" led to a different result if presented at Petitioner's trial. Because this Court's determination as to Petitioner's fault in the first appeal was applicable solely to whether the statute of limitations for presentation of the writ of error coram nobis should be tolled and because the trial court utilized a "would have" rather than a "may have" standard to determine whether Petitioner was entitled to coram nobis relief, we reverse and remand the matter to the trial court for further proceedings consistent with this opinion.


Court: TCCA


Philip A. Condra, District Public Defender, and B. Jeffery Harmon and Mechelle Story, Assistant Public Defenders, for the appellant, Carl Junior Fritts.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; James Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Carl Junior Fritts, appeals the sentencing decision of the Rhea County Circuit Court. Following his guilty pleas to four counts of burglary (Class D felony), vandalism over $1000 (Class D felony), and evading arrest (Class E felony), the trial court imposed an eight-year sentence for each Class D felony conviction and a four-year sentence for the Class E felony. The court further ordered that all sentences be served concurrently with the exception of the vandalism conviction, which was to be served consecutively, resulting in an effective sentence of sixteen years. On appeal, the defendant contends that the trial court erred by: (1) imposing the maximum sentence within the range for each conviction, and (2) imposing partial consecutive sentencing. Following review of the record, we conclude that the trial court did not err and affirm the sentences as imposed.


Court: TCCA


Robert W. Jones, District Public Defender; Garland Ergüden, Sanjeev Memula, and Harry Sayle, Assistant Public Defenders, for the appellant, Melvin Goodman.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Carrie Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, Melvin Goodman, was convicted by a Shelby County jury of one count of rape (Class B felony) and sentenced to a term of twenty years in the Department of Correction. On appeal, he raises two issues for our review: (1) whether the evidence is sufficient to support the conviction; and (2) whether the trial court violated his Sixth Amendment rights by enhancing his sentence on the basis of judicially determined facts other than prior convictions. Following review of the record, we conclude that the evidence is sufficient to support the conviction. However, after plain error review, we conclude that the trial court erred in its application of enhancing factors based upon the holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) ("Gomez II"), and that it is necessary to vacate the sentence. Accordingly, the judgment of conviction is affirmed, but the sentence is vacated and the case is remanded to the trial court for resentencing in compliance with the dictates of Gomez II.


Court: TCCA


Ryan C. Caldwell, Nashville, Tennessee, attorney for appellant, Eddie W. Phillips, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, Nashville, Tennessee, attorneys for appellee, State of Tennessee.


The petitioner, Eddie W. Phillips, Jr., appeals as of right the Davidson County Criminal Court's denial of his petition for post-conviction relief challenging the voluntariness of his guilty pleas. On appeal, the petitioner contends that the trial court erred in finding that he had not proven by clear and convincing evidence that his guilty pleas were involuntarily entered and that trial counsel committed ineffective assistance of counsel rendering his guilty pleas involuntary. Following our review, we affirm the judgment of the trial court.


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Bar exam results to be announced tomorrow
Results from the July Tennessee bar exam will be available Friday on the TBA Link web site. Results will be posted as soon as they are released by the Tennessee Board of Law Examiners, usually just after noon.

AG withdraws foreclosure opinion issued this week
The Tennessee Attorney General's Office today withdrew an opinion it issued Monday on the question of how much notice must be provided to a debtor in the case of a foreclosure if the address of the property to be foreclosed is different from the mailing address of the debtor. The opinion, 08-155, was requested by state representative Chris Crider to clarify the law in light of Attorney General Opinion 08-04, which was issued in January. Opinion 08-155, which ran in yesterday's issue of TBA Today, had found that the earlier opinion incorrectly summarized the statute and should be withdrawn. The opinion has been removed from the TBA web site.

Supreme Court issues amendments to court rules
The Tennessee Supreme Court today issued orders amending Tennessee Supreme Court Rules 13 and 17 to conform them to statutory changes adopted during the last legislative session. Rule 13 was amended to provide for representation of juveniles charged as unruly as now permitted by the statute. The court also amended its uniform judgment form in Rule 17 to conform to new mandatory fines for drag racing and drug violations.
View the amendment to Rule 13
View the amendment to Rule 17
Release of detainees blocked by appeals court
Late yesterday the U.S. Court of Appeals for the D.C. Circuit halted the release of 17 detainees ordered to be transferred to the United States by a lower court earlier this week. The appeals court set a deadline of next Thursday for additional filings to give the government more time to make arguments in the case.
WTVC News Channel 9 has this story from the AP
Justice Department sues Nashville over zoning issue
The U.S. Justice Department has sued the Metropolitan Government of Nashville and Davidson County for violations of the Fair Housing Act just weeks after a jury assessed a nearly $1 million penalty against the city for misusing zoning laws to keep a drug and alcohol treatment facility out of Goodlettsville. The new suit alleges that Metro discriminated against the religious organization that planned to build the facility and against people with disabilities who would have used it. The suit seeks a civil penalty and damages for every person who would have used the center.
The Tennessean reports
Lawyer warns city could face bigger bill if Lee files suit
Former Memphis, Light, Gas and Water Division chief Joseph Lee's lawyer recently said the Memphis city council's decision not to pay Lee's legal bills could cost it more in the long run if Lee decides to sue the city.
The Commercial Appeal reports
Lipscomb launches institute for corporate integrity
The College of Business at Nashville's Lipscomb University, in cooperation with the law firm of Bone McAllester Norton PLLC, has launched the Dean Institute for Corporate Governance and Integrity -- a national forum that will integrate best practices in governance with integrity and faith for public and private company executives, board members and other corporate leaders. The institute is the brainchild of Turney Stevens, head of the school's college of business and Charles Bone and Trace Blankenship of Bone McAllester Norton.
Read more about the initiative
New district attorney gets jump on job
Newly appointed 13th Judicial District Attorney Randy York took the oath of office from Circuit Judge John Turnbull in advance of a formal swearing-in ceremony where Governor Bredesen will administer the oath. York, a Crossville attorney, was recently appointed by Bredesen to replace Bill Gibson, who resigned the position last July. The Cookeville Herald-Citizen looks at York's goals for the office.
Read more here
Congress funds LSC at current levels
The U.S. Congress has passed, and President Bush has signed, a budget resolution that maintains the current funding level of $350.5 million for the Legal Services Corporation through March 6, 2009, or until a regular appropriation is enacted. The new federal fiscal year began Oct. 1, but because lawmakers were unable to adopt the regular spending bills, a special budget resolution was necessary. Bills pending in the House and Senate anticipated an 11 percent increase for FY 2009, but that issue will now be put off until next year, reports the corporation.

Commission re-opens magistrate application process
A Hamilton County Commission panel today decided to re-open the application process for the county's four judicial magistrate positions after the commission expressed concern that several current magistrates were working less than 30 hours a week. The panel today said they want magistrate candidates to expect to work at least 32 hours a week. The Chattanooga Times Free Press reported on the development.
Read it here
Supreme Court Report
Court hears Nashville civil rights case
The U.S. Supreme Court yesterday heard the case of a Nashville woman who claims she lost her job because she blew the whistle on sexual harassment. At issue in the case is whether federal civil rights laws that protect those who file complaints with the Equal Employment Opportunity Commission also protect workers who cooperate with internal investigations. During oral arguments a majority of the nine justices voiced support for Vicky Crawford, who was fired as head of the Nashville school district's payroll division after telling human resources officials that a coworker had engaged in lewd behavior.
The Tennessean has this Bloomberg News report
Court declines variety of cases
The U.S. Supreme Court this week declined to hear a variety of cases touching on religion, abortion and technology. Among those rejected were cases determining whether anti-abortion activists can force a state to issue "Choose Life" license plates, whether a Bible-reading juror invalidates a jury verdict, and whether digital video recorders violate the TiVo patent. Read more about the social issues from the ABA Journal. Read more about the DVR issue from the AP.

St. Crispin's Day roast planned
Join Nashville's political leaders for a St. Crispin's Day roast Oct. 23 at Cabana Restaurant in Hillsboro Village. The event, sponsored by the Nashville Post, will kick off with cocktails at 5 p.m. and feature an award presentation at 6 p.m. Come find out who will be the next Nashville politico to be inducted into the "The Order of St. Crispin."
Register here for free admission
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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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