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Thursday, September 08, 2011

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Paper: Crucial period for judicial nominations looms

With the U.S. Senate's confirmation of Bernice Donald to the 6th Circuit Court of Appeals this week, there are now about 55 judicial nominees pending before the chamber. Of those, 19 have been approved by the Senate Judiciary Committee and are awaiting a floor vote. Today, the committee is scheduled to vote on 10 more. But even if all nominees are approved, a big gap remains given there are about 90 vacant federal judgeships in the country. And if nominees do not see action before the end of the session, supporters will have to seek unanimous approval to keep them pending or the president will be forced to renominate them in 2012.

Read more on the issue from Reuters

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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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. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

SEAN L. JOHNSON v. RANDSTAD NORTH AMERICA, L.P. ET AL.

Court: TWCA

Attorneys:

Cole B. Stinson, Knoxville, Tennessee, for the appellants, Randstad North America, L. P. and Ace American Insurance Company.

Ben Boston and Ryan Durham, Lawrenceburg, Tennessee, for the appellee, Sean L. Johnson.

Judge: ANDERSON

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee suffered an episode of serious breathing difficulty after work while at home. He was transported by ambulance to a hospital where an emergency tracheotomy was performed to allow him to breathe. He alleged that this episode was caused by exposure to airborne contaminants in his workplace. His employer denied the claim. The trial court found that the employee had sustained a compensable injury and awarded permanent total disability benefits. The employer has appealed, contending that the trial court erred by finding that employee had a compensable injury, and by finding him to be permanently and totally disabled. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/johnsons_090811.pdf

NAOMI JEWELL KELLEY v. UNION CARBIDE CORPORATION

Court: TWCA

Attorneys:

John R. Lewis, Nashville, Tennessee, for the appellant, Union Carbide Corporation.

Tracy W. Moore, Columbia, Tennessee, for the appellee, Naomi Jewell Kelley.

Judge: HARRIS

This case involves a claim for workers' compensation benefits by the dependent spouse of a deceased employee. The decedent was exposed to asbestos in the course of his employment and contracted asbestosis as a result. His claim for benefits was settled in 1991. He died in December 2007, and his widow filed this action seeking death benefits under the workers' compensation law. The trial court awarded benefits, and the employer has appealed, contending that the widow's claim was barred by the terms of the 1991 settlement. The widow contends that the trial court incorrectly set the rate at which benefits are to be paid. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/kelleyn_090811.pdf

MAXINE WATLEY v. WHIRLPOOL CORPORATION ET AL.

Court: TWCA

Attorneys:

David T. Hooper, Brentwood, Tennessee, for the appellant, Whirlpool Corporation.

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

Monica Mayo-Grinder, Nashville, Tennessee, for the appellee, Maxine Watley.

Judge: HARRIS

In this workers' compensation case, the employee injured her lower back at work in May 2006. She received medical treatment for a short period of time and was then released by her doctor. In July 2007, she consulted a neurosurgeon for continuing lower back pain. Around the same time, she accepted a voluntary layoff from her employer, then retired. She later had two surgeries on her lower back: a discectomy in October 2007, and a fusion in April 2008. She filed this action, alleging that the surgeries and resulting disability were caused by her employment. Her employer denied the claim. The trial court found that the October 2007 surgery was caused by her May 2006 injury, but the April 2008 surgery was not. It further found that her award of permanent disability benefits was "capped" at one and one-half times her anatomical impairment due to her voluntary retirement. Her employer has appealed, contending that the trial court erred by finding her claim was not barred by the statute of limitations, and by using an incorrect impairment rating as the basis of its award. Employee contends that the trial court erred by failing to find that she was permanently and totally disabled. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/watleym_090811.pdf

JAMES ELDRIDGE v. KATIE HUNDLEY

Court: TCA

Attorneys:

Rachel L. Songstad-Lambert, Arlington, Tennessee, for the appellant, James Eldridge.

James Stephen King, Memphis, Tennessee, for the appellee, Katie Hundley.

Judge: FARMER

Father filed a petition to modify the juvenile court's order naming Mother primary residential parent and establishing a visitation schedule. The trial court modified the visitation schedule, but did not establish visitation as requested by Father. Father appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/eldridgej_090811.pdf

BOYD L. HUGHES ET AL. v. CURTIS E. HUGHES, EXECUTOR OF THE ESTATE OF LUCILLE C. LUTTRELL

Court: TCA

Attorneys:

Jimmy W. Bilbo, Cleveland, Tennessee, for the appellants, Boyd L. Hughes and Doris R. Hughes.

Robin L. Miller, Chattanooga, Tennessee, for the appellee, Curtis E. Hughes, Executor of the Estate of Lucille C. Luttrell.

Judge: SUSANO

This is a will contest case in which the plaintiffs attempt to invalidate the will of Lucille C. Luttrell due to her supposed lack of testamentary capacity. The executor of Ms.Luttrell's estate filed two motions for summary judgment. The first one was denied; the second one was granted. The court ultimately held that the affidavits of medical doctors who evaluated the testator's mental faculties approximately six months before she signed her will do not create a genuine issue of fact regarding her testamentary capacity at the time she signed the will. The plaintiffs appeal. We vacate the order granting summary judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2011/hughesb_090811.pdf

BOBBY MURRAY, ET AL. v. DENNIS MIRACLE, ET AL.

Court: TCA

Attorneys:

Bobby Murray and Loretta Murray, Harriman, Tennessee, for the appellants, pro se.

Mark N. Foster, Rockwood, Tennessee, for the appellees, Dennis Miracle and Robert Daniel Smith.

Judge: MCCLARTY

The plaintiffs, Bobby Murray and Loretta Murray ("the Murrays"), asserted a complaint against the defendants, Dennis Miracle and Robert Daniel Smith, for denying them access to a road and interfering with their use and enjoyment of their property. After several hearings, the trial court concluded that the Murrays were not following the court's orders and dismissed their claims against both Mr. Miracle and Mr. Smith without prejudice. The Murrays appeal. We reverse.

http://www.tba2.org/tba_files/TCA/2011/murrayb_090811.pdf

STATE OF TENNESSEE v. TAVARES DUONE BRADEN

Court: TCCA

Attorneys:

William E. Griffith (on appeal) and Reginald Horton (at trial), Nashville, Tennessee, for the Appellant, Tavares Duone Braden.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy Eisenbeck and Rachel Sobrero, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Tavares Duone Braden, for the sale of less than 0.5 grams of cocaine, possession with intent to sell 0.5 grams or more of cocaine, promotion of prostitution, possession of marijuana, and evading arrest. The trial court sentenced the Defendant to an effective sentence of eighteen years in the Tennessee Department of Corrections. On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred when it denied his motion for judgment of acquittal; (3) the trial court imposed an excessive sentence; and (4) he received the ineffective assistance of counsel. After a thorough review of the record and applicable authorities, we conclude the evidence is sufficient to sustain the Defendant's convictions and that the trial court properly sentenced him. We, therefore, affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/bradent_090811.pdf

STATE OF TENNESSEE v. RICHARD E. BROWN, JR.

Court: TCCA

Attorneys:

Venus Niner, Franklin, Tennessee, for the appellant, Richard E. Brown, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim R. Helper, District Attorney General; and Derek K. Smith, Deputy District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a bench trial, the Defendant, Richard E. Brown, Jr., was convicted of one count of driving on a revoked license. See Tenn. Code Ann. section 55-50-504. In this appeal as of right, the Defendant contends (1) that the trial court improperly found him guilty of driving on a revoked license when the indictment charged him with driving on a suspended license; (2) that he could not be convicted of driving on a revoked license because the Department of Safety never revoked his license; and (3) that he did not effectively waive his right to a jury trial. Following our review, we conclude that the Defendant's driver's license had not been revoked, as the term is defined in Tennessee Code Annotated section 55-50-102, prior to the alleged criminal act. Accordingly, we reverse and dismiss the Defendant's conviction for driving on a revoked license.

http://www.tba2.org/tba_files/TCCA/2011/brownr_090811.pdf

DANIEL DEETER v. CHERRY LINDAMOOD, WARDEN

Court: TCCA

Attorneys:

Daniel Deeter, pro se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Daniel Deeter, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2011/deeterd_090811.pdf

KYNASTON SCOTT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kynaston Scott, Only, Tennessee, pro se.

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

Judge: THOMAS

The Petitioner, Kynaston Scott, appeals as of right from the Davidson County Criminal Court's dismissal of his petition for a writ of error coram nobis. The Petitioner contends that the coram nobis court erred by summarily dismissing his petition without an evidentiary hearing. Following our review, we affirm the judgment of the coram nobis court.

http://www.tba2.org/tba_files/TCCA/2011/scottk_090811.pdf

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Pro bono champion, Dorothy Stulberg dies

Retired Oak Ridge lawyer Dorothy Stulberg died Sept. 3 at the age of 86. Stulberg earned her law degree from the University of Tennessee College of Law in 1974 and practiced with the firm of Mostoller, Stulberg, Whitfield & Allen. She retired at the age of 84 and began volunteering with the University of Tennessee's Teaching and Learning Center. Stulberg was committed to pro bono, serving for more than 25 years as the chair of Rural Legal Services. She was recognized for that work in 1999 when the TBA named her Pro Bono Attorney of the Year. Then-Chief Justice E. Riley Anderson, while speaking at the 20th Anniversary celebration of Rural Legal Services of Tennessee in 1999, said "the county had a legal aid program before RLST arrived -- it was called Dorothy Stulberg."

A celebration of her life will be Sept. 11 at 2 p.m. in the Toyota Room of the Baker Center on the University of Tennessee campus. In lieu of flowers, the family requests donations to any of the following charities: Tennessee Justice Center, 2nd Harvest Food Bank, Southern Poverty Law Center, Planned Parenthood, ACLU or League of Women Voters.