'Showdown' on Appellate Judicial Nominees Set

A confirmation vote scheduled for Monday could be a pivotal moment for how many appellate court bench spots the Senate will fill during the rest of this year, the Blog of Legal Times reports. Majority Leader Sen. Harry Reid, D-Nev., is forcing a vote Monday afternoon on Robert Bacharach of Oklahoma for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.

If Reid succeeds in getting enough Republican votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit. If Reid does not succeed, it would suggest Minority Leader Mitch McConnell, R-Ky., has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.

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.

00 - TN Supreme Court
02 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.


TN Workers Comp Appeals

BRYAN E. BROWN v. VINTEC COMPANY ET AL

Court: TN Workers Comp Appeals

Attorneys:

James S. Higgins, Nashville, Tennessee, for the appellant, Bryan Brown.

Charles E. Pierce and Julie Cochran Fuller, Knoxville, Tennessee, for the appellees, Vintec Company and Travelers Insurance Company.

Judge: KURTZ

The employee sustained a compensable injury to his lower back in August 1999. He returned to work in August 2000. He had back spasms related to the injury in May 2001 that caused him to be off work until August 2001. Thereafter, he worked until December 2008, when he was permanently laid off due to economic conditions. The settlement of his workers’ compensation claim, which was approved by the trial court in July 2001, was based on the two-and-one-half times impairment cap, Tenn. Code Ann. § 50-6-241(a), and preserved his right to seek reconsideration on loss of employment. Following the December 2008 layoff, he filed this petition for reconsideration. His employer contended that reconsideration was time-barred by section 50-6-241(a)(2) because his loss of employment occurred more than 400 weeks after he returned to work in August 2000. The employee argued that his correct return to work date was in August 2001, and his petition was therefore timely. The trial court agreed with the employer, for whom judgment was entered, and the employee has appealed. We affirm the trial court’s judgment.


LINDA PRINCINSKY v. PREMIER MANUFACTURING SERVICES, INC. ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Terry L. Hill and Michael L. Haynie, Nashville, Tennessee, for the appellants, Premier Manufacturing Support Services, Inc. and Travelers Insurance Company.

Larry R. McElhaney, II, Nashville, Tennessee, for the appellee, Linda Princinsky.

Robert E. Cooper, Jr., Attorney General & Reporter; William E. Young, Solicitor General; Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Second Injury Fund.

Judge: CHILDRESS

This is the second appeal in this matter. In the first appeal, the Special Workers’ Compensation Appeals Panel affirmed the trial court’s judgment finding the employee permanently and totally disabled. The Panel held, however, that the trial court’s judgment should be reduced by the 272 weeks of benefits the employer had previously paid the employee. Therefore, the Panel remanded the case to the trial court for entry of a judgment consistent with its opinion. On remand, the trial court applied the 272-week credit as the Panel had directed. The trial court also reapportioned liability and modified the date on which the employee’s permanent total disability benefits began to accrue. The trial court’s modification effectively increased the employee’s award from the 496.86 weeks it had awarded the employee in the original appeal to 697.14 weeks. Employer has appealed, contending that the reapportionment of liability and the modification of the date upon which benefits accrued conflict with the mandate of the previous appeal. We conclude that employer’s contentions are correct and reverse the trial court’s judgment.


TN Court of Appeals

IN THE MATTER OF: ANTAR R.W.

Court: TN Court of Appeals

Attorneys:

Beth Brooks, Memphis, Tennessee, for the appellant, Dexter W.

Robert E. Cooper, Jr., Attorney General and Reporter, Marcie E. Greene, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Justin Allen Ratliff

Judge: HIGHERS

The State filed a petition for child support against a father, on behalf of a non-parent caretaker who was caring for the father’s son. The juvenile court ordered the father to pay current and retroactive child support. The father filed a motion asking the court to rehear the child support matter and/or consolidate it with a separately pending child custody case. The juvenile court denied the motion, and the father appealed. We affirm.


ANDREW K. ARMBRISTER, v. MELISSA H. ARMBRISTER

Court: TN Court of Appeals

Attorneys:

David L. Leonard, Greeneville, Tennessee, for the appellant, Melissa H. Armbrister.

Thomas C. Jessee, Johnson City, Tennessee, for the appellee, Andrew K. Armbrister.

Judge: FRANKS

The parties were divorced on September 2, 2009, and the Trial Court entered a Permanent Parenting Plan. On February 11, 2011, the father filed a Motion to Modify the PPP, alleging a change in circumstances. Following trial of the issues, the Trial Court increased the number of days the father would have the children and reduced the award of child support. The mother has appealed, we reverse the Trial Court.


JOHN JAY HOOKER, on behalf of himself and others, v. GOVERNOR BILL HASLAM, et al.

Court: TN Court of Appeals

Attorneys:

John Jay Hooker, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Janet M. Kleinfelter, Deputy Attorney General, Nashville, Tennessee, for the appellees.

Judge: FRANKS

Plaintiff filed this action in Circuit Court challenging the constitutionality of the Tennessee Retention Election Statutes, Tenn Code Ann. §§ 17-4-1010 et seq. The Trial Judge held the statutes were constitutional, but concluded that intermediate appellate judges are subject to retention election only by the qualified voters of the grand division in which the judge resides. Plaintiff appealed. We affirm the Trial Court’s decision that the statutes are constitutional, but reverse the Trial Court’s holding that intermediate appellate judges are subject to retention only by the qualified voters of the grand division in which the judge resides.


GLENA MEARES, et al., v. THOMAS R. TRAYLOR, M.D.

Court: TN Court of Appeals

Attorneys:

Dail R. Cantrell, Clinton, Tennessee, for the appellants, Glena and Paul Meares.

David E. Waite and Stephanie D. Coleman, Knoxville, Tennessee, for the appellee, Thomas R. Traylor, M.D.

Judge: FRANKS

Plaintiffs charged defendant with medical malpractice. The case was tried before a jury, resulting in a judgment for the defendant. An out-of-state medical doctor testified on behalf of the defendant, over the objection of plaintiffs. Plaintiffs have appealed to this Court, insisting that it was reversible error for the Trial Court to allow that expert to testify in violation of the "Locality Rule". On appeal, we affirm the Judgment of the Trial Court.


JIM SUZICH v. FRANK BOOKER and wife, BEVERLY BOOKER and JOHN S. BOMAR, Trustee, KATIE WINCHESTER, Trustee, and FIRST CITIZENS NATIONAL BANK

Court: TN Court of Appeals

Attorneys:

J. Vincent Perryman, J. Michael Fletcher, Memphis, Tennessee, for the appellants, Frank Booker and wife, Beverly Booker

Louis Jay Miller, Memphis, Tennessee, for the appellee, First Citizens National Bank

Judge: HIGHERS

This appeal involves a construction loan obtained by the plaintiffs for the construction of a new home. The loan proceeds were exhausted prior to the completion of the home. The plaintiffs then sued the lender bank for breach of contract, alleging that the bank had a duty to inspect the construction prior to disbursing funds, and that its failure to complete inspections resulted in improper disbursement of the loan funds. The trial court granted summary judgment to the bank upon concluding that the bank had no contractual duty to inspect the construction of the residence. The plaintiffs appealed. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. SHELLY MINOR

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. McClusky, Memphis, Tennessee, for the appellant, Shelly Minor.

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

Judge: SMITH

Appellant, Shelly Minor, was indicted by the Shelby County Grand Jury for several offenses after the death of his estranged girlfriend. At the conclusion of a lengthy jury trial, Appellant was found guilty of second degree murder, leaving the scene of an accident involving injury or death, driving while a habitual motor vehicle offender, driving under the influence (“DUI”), reckless driving, vehicular homicide by intoxication, and vehicular homicide by reckless conduct. At sentencing, the trial court merged the vehicular homicide convictions with the second degree murder conviction and merged the reckless driving conviction with the conviction for driving under the influence. As a result of the convictions, Appellant was ordered to serve an effective sentence of twenty-eight years, eleven months, and twenty-eight days. A motion for new trial was denied and this appeal followed. On appeal, Appellant argues that: (1) the evidence was sufficient to support the convictions; (2) the trial court erred in denying a continuance; (3) the trial court erred in allowing the State to introduce evidence of prior bad acts of Appellant and hearsay statements made by the victim; (4) the State committed discovery violations with regard to recorded telephone calls made by Appellant while incarcerated; (5) cumulative errors necessitate a reversal of Appellant’s convictions; and (6) the trial court erred in sentencing Appellant to an excessive sentence with consecutive sentencing. After a review of the record and applicable authorities, we determine: (1) the evidence was sufficient to support the convictions; (2) Appellant failed to show what the testimony of the missing witness would have been at trial and, therefore, cannot show prejudice from the trial court’s failure to grant a continuance to secure the witness’s attendance at trial; (3) the trial court properly allowed the State to introduce evidence of prior bad acts of Appellant under Tennessee Rule of Evidence 404(b) and 804(b)(6); (4) Appellant failed to show how he was prejudiced by the State’s alleged discovery violations; (5) cumulative errors do not necessitate a reversal of Appellant’s convictions; and (6) the trial court properly sentenced Appellant. Accordingly, the judgments of the trial court are affirmed.


STATE OF TENNESSEE v. KEVIN WOMACK

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Gookin (on appeal), Jackson, Tennessee, and G. Michael Casey (at trial), Jackson, Tennessee, for the appellant, Kevin Womack.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James G. Woodall, District Attorney General; Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Madison County jury convicted the Defendant, Kevin Womack, of possession of cocaine with intent to sell, possession of cocaine with intent to deliver, possession of a firearm with intent to employ in the commission of a dangerous felony, possession of drug paraphernalia, theft of property over $500, and tampering with evidence. The trial court sentenced the Defendant to an effective eighteen-year sentence in the Tennessee Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to support his convictions. After a thorough review of the record and applicable law, we affirm the trial court’s judgments, with the exception of the theft of property conviction, which we modify from a Class E felony theft to a Class A misdemeanor theft.


Governor Appoints Special Supreme Court to Hear Appeal

Tennessee Gov. Bill Haslam today appointed a special Supreme Court to hear a case from which all five Tennessee Supreme Court justices have recused themselves. William M. Barker, Andree Sophia Blumstein, George H. Brown Jr., Robert L. Echols and W. Morris Kizer will hear the case, which is an appeal of Hooker et al. vs. Haslam et al., a lawsuit challenging the constitutionality of a Court of Criminal Appeals appointment by the governor.


Bank of America Sues Nashville Bankruptcy Trustee

Charlotte, N.C.-based Bank of America has filed a lawsuit against Nashville's Chapter 13 bankruptcy trustee, Henry "Hank" Hildebrand, according to the Nashville Business Journal. The move marks an effort on behalf of the bank to put an end to a common defense tactic used by debtors and foreclosure judges in the aftermath of the mortgage meltdown. Known as "show me the note," the tactic forces a lender to offer up physical documentation that they actually own the mortgage. It's a method that has been successful in Nashville, where Hildebrand has become well-known for his efforts to force mortgage companies to produce the original note when filing a claim in bankruptcy proceedings.


Judge Wants More Info on Prayer Policies

U.S. District Judge Harry S. "Sandy" Mattice heard arguments Thursday on whether to grant a preliminary injunction ending prayer at Hamilton County Commission meetings, but said he wants more information before making a ruling. Mattice instructed Stephen S. Duggins, arguing on behalf of the county, and attorney Robin Flores, representing the plaintiffs, to submit all evidence by Aug. 2. Final briefs are to be turned in by Aug. 8. Chattanoogan.com has more


Tennessee to Get $2M of $151M Drug Company Settlement

Tennessee will receive approximately $2 million as part of a national agreement with one of the largest American drug distributors, McKesson Corp., for allegedly causing the government to overpay for prescription drugs, Attorney General Bob Cooper announced today. McKesson is alleged to have violated the Federal False Claims Act and various state false claims acts by reporting inflated pricing data for a large number of prescription drugs. As a result, state Medicaid programs such as TennCare had to overpay for a variety of drugs.


Judge Gives More Time for Mosque Construction

U.S. District Judge Kevin Sharp agreed Thursday to give the Islamic Center of Murfreesboro more time to complete construction and occupy its new building. Sharp extended a temporary restraining order until Aug. 15 after another federal judge last week ordered Rutherford County to restart the inspection process on the mosque. Nashville-based U.S. Attorney Jerry Martin said his office and Rutherford County asked the federal judge to provide more time to allow the ICM to complete the new mosque and obtain a certificate of occupancy after passing final inspections from the local government.


Norton Tells Paper What's Kept Him Off Campaign Trail

In an interview with the Times Free Press, Hamilton County Sessions Court Judge David Norton explains a neurological condition that has kept him off the bench at least one-third of the time since his March appointment. Norton says the "inherited, nonlife-threatening neurological illness that affects his motor skills but not his mental capacity" has prevented him from serving and campaigning for much of the past four weeks. He is awaiting further treatment that could resolve the condition allowing him to serve, he told the paper. If he is elected and the condition persists and interferes with his judicial duties, Norton said he would step down.


Record Early Voting Turnout; Problems Surface in Shelby

More than 220,000 Tennesseans have voted early or absentee by mail for the Aug. 2 election, but the Tennessee Democratic Party called for an investigation into early voting statewide amid evidence that more than 1,000 people in Shelby County were given the wrong ballots. A Memphis blogger and candidate for the Shelby County Election Commission turned up evidence this week that hundreds of voters in Shelby County were erroneously given ballots for a neighboring district.


YLD Leaders Meet for Planning Session

Members of the TBA Young Lawyers Division leadership are meeting this weekend in Nashville to plan public and member service programs for the new bar year. On Saturday morning, TBA President Jackie Dixon will speak to the group about her vision for the year and discuss how the YLD can support those efforts. YLD President David Veile has committed to helping Dixon implement public education efforts designed to help civic and community leaders understand the importance of an independent judiciary. That initiative as well as others are on the agenda for the session. Learn more about the YLD's programs


Scalia: It's Not Personal

Supreme Court Justice Antonin Scalia is downplaying reports of discord among the justices following last month's decision to uphold President Barack Obama's health care overhaul. Scalia said in an interview with The Associated Press on Thursday that he and his colleagues disagree over cases all the time "without taking it personally." While he would not address Chief Justice Roberts' reported switch, Scalia acknowledged that he himself had once been assigned to write a majority opinion for the court in a case years ago and then changed his mind. A majority "eventually went along with that revised view," he said.


Memphis Lawyer Censured

Memphis lawyer John Robert Hershberger was publicly censured by the Board of Professional Responsibility of the Tennessee Supreme Court today. In 2011, Hershberger presented the court with a Petition for Scire Facias and Citation for Contempt. The judge presiding over the case refused to sign the FIAT because Hershberger was represented by counsel. Hershberger researched the issue, decided that the judge’s conclusion was incorrect, and then presented the FIAT to a different judge. He did not inform the new judge that the previous judge had refused to sign the FIAT. Therefore he violated Tennessee Supreme Court Rule 8, Rules of Professional Conduct 3.3(a)(1)(candor toward tribunal). Download the BPR release


Sumner County Lawyer Censured

Sumner County lawyer Randy Paul Lucas received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court today. He represented to his clients on several occasions that he had secured a trial date, but he had not. He made material misrepresentations of fact to his clients and neglected his clients’ case. By these acts, Lucas violated Rules of Professional Conduct 1.3 (diligence); 1.4 (communication); 3.2 (expediting litigation); and 8.4 (misconduct). Download the BPR release


 
 

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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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