AG Holder says vacancies creating 'crisis in our courts'

Jane Branstetter Stranch's lengthy journey to confirmation to the Sixth Circuit Court of Appeals serves as a jumping off point for U.S. Attorney General Eric Holder, who today writes on the Washington Post op-ed page that there is a "crisis in our courts" created by delays in approving judicial nominations. Holder points out that the Sixth Circuit vacancy "had been declared a 'judicial emergency' because the Sixth Circuit does not have enough judges to promptly or effectively handle the court's caseload, leading to serious delays in the administration of justice to people in Tennessee and other parts of the 6th Circuit." Stranch, a Nashville attorney, waited almost 300 days for an up-or-down vote by the full Senate.

Read the opinion piece in the Washington Post

TODAY'S OPINIONS
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STEVEN WILLIAMS v. UNITED PARCEL SERVICE ET AL.

Court: TWCA

Attorneys:

David T. Hooper, Brentwood, Tennessee, for the appellants, United Parcel Service and Liberty Mutual Insurance Company.

William J. Butler, Lafayette, Tennessee, for the appellee, Steven Williams.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry ("MIR") report prepared in accordance with Tenn. Code Ann. section 50-6-204(d)(5) (Supp. 2009). The trial court sustained the employee's objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee's left knee was compensable and awarded the employee 27% permanent partial impairment to each leg. On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee's right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee's physician. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/williamss_092810.pdf


IN RE: ALEKSANDREE M.M. AND MARIE J.M.

Court: TCA

Attorneys:

Jheri Beth Rich, Lewisburg, Tennessee, for the appellant, Holly M.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lindsey O. Appiah, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: DINKINS

Mother of four children appeals the termination of her parental rights to two of those children on the ground that she failed to protect them from severe child abuse. Finding the evidence of record to clearly and convincingly support the ground for termination and that termination was in the children's best interest, we affirm the judgment.

http://www.tba2.org/tba_files/TCA/2010/aleksandreemm_092810.pdf


IN RE BETTY P., ET AL.

Court: TCA

Attorneys:

Aaron J. Chapman, Johnson City, Tennessee, for the appellant, Macaria. L.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dianne Stamey Dycus, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Judge: SUSANO

This is a termination of parental rights case. Macaria L. ("Mother") appeals from the order terminating her parental rights to her five minor children and awarding full guardianship to the State of Tennessee. At the conclusion of a bench trial, the court ordered Mother's parental rights terminated upon its finding that she had abandoned her children by willfully failing to pay child support. Mother appeals. We conclude that the record contains clear and convincing evidence supporting the termination of Mother's rights. Accordingly, we affirm.

http://www.tba2.org/tba_files/TCA/2010/bettyp_092810.pdf


DARLENE MANIS BROWN v. ALLAN CRAIG VAUGHN

Court: TCA

Attorneys:

Joseph E. Willard, Jr. and Ann Willard Fiddler, Rossville, Georgia, for the appellant, Allan Craig Vaughn.

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Darlene Manis Brown.

Judge: SUSANO

Darlene Manis Brown, a Tennessee resident, filed a petition in the trial court seeking a protective order against her former boyfriend, Allan Craig Vaughn, a resident of the state of Georgia. Based upon her petition, the trial court issued an ex parte order of protection. Later, following an evidentiary hearing, the protective order was extended for one year. Vaughn appeals. He challenges the sufficiency of the evidence supporting the order of protection and claims the trial court lacked jurisdiction of this dispute. We affirm.

http://www.tba2.org/tba_files/TCA/2010/brownd_092810.pdf


EAST TENNESSEE GRADING, INC., v. BANK OF AMERICA, N.A., et al.

Court: TCA

Attorneys:

Steven M. Jacoway, Chattanooga, Tennessee, for the appellant, East Tennessee Grading, Inc.

Brett A. Oeser, Nashville, Tennessee, for the appellees, Bank of America, N.A., William B. Coughlin, and Janet L. Coughlin.

Judge: FRANKS

Plaintiff brought this action to enforce a lien for excavation and road work done in a residential development, because the owner had not paid for the construction work performed. An agreed judgment was entered as to plaintiff's claims against defendant, Seven Lakes Development, awarding judgment against that defendant for materials and labor performed on the property. One parcel of property, however, totaling 6.36 acres was owned by defendants Coughlins, which was subject to a deed of trust in favor of Bank of America. The Trial Court held that Bank of America had priority over plaintiff as to 1.9 acres because plaintiff had not filed its Notice of Lien timely to maintain priority over the subsequent owners pursuant to Tenn. Code Ann. section 66-11-112. The Trial Court also held that plaintiff had priority over Bank of America as to 4.46 acres because plaintiff's Notice of Lien was filed before the Amended Deed of Trust in favor of Bank of America was filed. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2010/easttenngrading_092810.pdf


DAVID A. LUFKIN, SR. v. CHRISTOPHER W. CONNER

Court: TCA

Attorneys:

Thomas F. Mabry, Seymour, Tennessee, for the appellant, David A. Lufkin, Sr.

William S. Walton, Nashville, Tennessee, for the appellee, Christopher W. Conner.

Judge: SWINEY

David A. Lufkin, Sr. ("Lufkin") sued attorney Christopher W. Conner ("Conner") for legal malpractice in January of 2009. Conner filed a motion for summary judgment. After a hearing, the Trial Court entered an order finding and holding, inter alia, that Lufkin knew or reasonably should have known of the existence of the facts forming this cause of action by September of 2007, and that Lufkin's complaint filed in January of 2009 was barred by the applicable statute of limitations. Lufkin appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2010/lufkind_092810.pdf


ANGELA MERRIMAN v. BRIAN MERRIMAN

Court: TCA

Attorneys:

Deborah A. Yeomans, Johnson City, Tennessee, for the Appellant, Angela Merriman.

No brief filed by the Appellee, Brian Merriman.

Judge: SWINEY

Angela Merriman ("Petitioner") filed for and obtained an ex parte order of protection against her husband, Brian Merriman ("Respondent"). Pursuant to statute, a hearing was conducted on whether to dissolve or to extend the order of protection. In accordance with Tenn. Code Ann. section 36-3-605(b), a trial court has two options at such a hearing: (1) to dissolve the order of protection; or (2) to extend the order of protection for a definite period of time not to exceed one year. With respect to taxing costs, Tenn. Code Ann. section 36-3-617(a) expressly prohibits taxing costs against a victim, even if the order of protection is dissolved. If the order of protection is extended, the costs must be taxed against the respondent. In the present case, following the hearing on whether to extend or dissolve the order of protection, the Trial Court instead entered a mutual restraining order and taxed costs equally to both parties. Because neither action was authorized by statute, we vacate the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2010/merrimana_092810.pdf


LESLIE LOUISE MILLER v. JEFFREY TODD MILLER

Court: TCA

Attorneys:

Jerry W. Laughlin, Greeneville, Tennessee, for the appellant, Leslie Louise Miller.

Edward Kershaw, Greeneville, Tennessee, for the appellee, Jeffrey Todd Miller.

Judge: SUSANO

Leslie Louise Miller ("Wife") filed this action for divorce. Jeffrey Todd Miller ("Husband") coupled a counterclaim for divorce with his answer. Wife admitted inappropriate marital conduct in her answer. The parties had been married for 15 years and had two minor children. They stipulated to a division of all of their property except the marital residence, about which there remained unresolved issues. After three days of trial, the court granted Husband a divorce on the grounds of inappropriate marital conduct. The court awarded him the marital residence and ordered him to pay Wife one half of the equity, which the court determined to be $47,092.50, minus $4,500 representing that portion of Husband's attorney's fees assessed to Wife. The court awarded "primary parentage" of the children to Husband and gave Wife, a teacher at the children's school, parenting time limited to every other weekend and one weeknight every week. Wife appeals. The judgment of the trial court is affirmed in part and vacated in part.

http://www.tba2.org/tba_files/TCA/2010/millerl_092810.pdf


ROLAND DAVID SHEPPARD v. WANDA ELIZABETH SHEPPARD

Court: TCA

Attorneys:

Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Wanda Elizabeth Sheppard.

Mark Allen Rassas, Julia Palasek North, Clarksville, Tennessee, for the appellee, Roland David Sheppard.

Judge: COTTRELL

The trial court granted the husband a divorce after a marriage of twenty-two years on the ground of the wife's inappropriate marital conduct. The court also divided the marital property and awarded the wife transitional alimony of $150 per month for 24 months. The wife argues on appeal that the trial court should have awarded her alimony in futuro of $2,240 per month. The husband argues that it was an error to award the wife any alimony at all. We affirm the award of transitional alimony, but modify it by increasing it to $350 per month.

http://www.tba2.org/tba_files/TCA/2010/sheppardr_092810.pdf


STATE OF TENNESSEE v. JOHN COTE AND SARAH COTE In Re: DR. SANDRA ELKINS

Court: TCCA

Attorneys:

Edward C. Miller, Public Defender, Dandridge, Tennessee, for the Defendant-Appellee, John Cote.

Ronald C. Newcomb, Knoxville, Tennessee, for the Defendant-Appellee, Sarah Cote.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the Appellee, State of Tennessee.

James A. H. Bell, Knoxville, Tennessee, for the Appellant, Sandra Elkins, M.D.

Judge: MCMULLEN

John and Sarah Cote, the Defendant-Appellees in this case, stand accused of offenses involving the death of a minor child. Dr. Sandra Elkins, the former Knox County Medical Examiner, performed the autopsy of the victim in the Cotes' case. In a pre-trial motion for discovery, the Cotes requested disclosure of Dr. Elkins's personal medical records; namely, prescription records, drug treatment records, mental health records, University of Tennessee personnel records, an audit report of the East Tennessee Regional Forensic Center, and any records from the Tennessee Board of Medical Examiners. The trial court granted an in camera review of the requested information. Dr. Elkins originally sought an interlocutory appeal of the trial court's order granting the motion for discovery pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Interpreting the Rule 9 appeal as a common law writ of certiorari, this court granted review. Following this court's order accepting the Rule 9 appeal as a writ of certiorari, the Cotes filed a petition for a writ of certiorari with the Tennessee Supreme Court, which was denied. In this appeal, Dr. Elkins and the State raise largely the same issues: (1) whether this appeal should be construed as a petition for a common law writ of certiorari pursuant to Tennessee Code Annotated section 27-8-101 or as a petition for a statutory writ of certiorari pursuant to Tennessee Code Annotated section 27-8-102, or both; and (2) whether the trial court erred by ordering Dr. Elkins's personal records to be disclosed for an in camera inspection. Because the Cotes failed to make a plausible showing that the requested information contained material evidence that was favorable to their defense, we reverse the trial court's order permitting an in camera review of the records and remand the case.

http://www.tba2.org/tba_files/TCCA/2010/cotej_092810.pdf


STATE OF TENNESSEE v. BRYAN KEITH GOOD
CORRECTION:The Attorney General who argued the case was Renee Turner not Leslie Price


Court: TCCA

Attorneys:

George Todd East, Kingsport, Tennessee, for the appellant, Bryan Keith Good.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry Staubus and William Harper, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A Sullivan County jury convicted the defendant, Bryan Keith Good, of attempted aggravated robbery, a Class C felony, criminally negligent homicide, a Class E felony, and unlawful possession of a deadly weapon, a Class E felony. The trial court sentenced him as a Range III, persistent offender to fifteen years for the Class C felony and six years for each of the Class E felonies. The court ordered the defendant to serve the sentences consecutively in the Tennessee Department of Correction, for an effective sentence of twenty-seven years. On appeal, the defendant (1) challenges the sufficiency of the evidence to support his convictions for attempted aggravated robbery and unlawful possession of a deadly weapon; (2) argues that the trial court erred in denying his motion for judgment of acquittal; and (3) contends that the trial court erred in imposing consecutive sentences and in denying alternative sentencing. Following our review, we conclude that the convictions for both attempted aggravated robbery and unlawful possession of a deadly weapon violate double jeopardy protections. The defendant's convictions for attempted aggravated robbery and unlawful possession of a deadly weapon are hereby merged. The defendant's remaining convictions and sentences are affirmed. We remand solely for the entry of appropriate judgments consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/goodb_CORR_092810.pdf


TODAY'S NEWS

Legal News
Election 2010
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Class action suit asks for 'crack tax' money back
Tennesseans have requested and gotten refunds from the state since the Tennessee Supreme Court struck down the so-called crack tax law in 2009. The law required people who bought or sold illicit drugs to buy a tax stamp for the amount of drugs they had. Since the law's repeal, the state Department of Revenue has refunded $3.7 million to 161 people, but 2,772 people who paid the tax have not gotten any money back. Columbia attorney John Colley is now leading a class action suit that would allow attorneys to identify and notify all people who paid the tax while it was still on the books.
Read more in the Tennessean
Higgins' route to the bench was not a straight shot
When Gina Higgins won the Circuit Court Division 4 seat in August, it was in an unusual slate of five special judicial elections in which three appointed judges lost their bids to remain in office through 2014. Higgins took the oath of office soon after, and last week she took the ceremonial oath before a group of more than 100 family members, friends and other judges at City Hall. Higgins tells about her journey to judgeship to
The Memphis Daily News
20 hours' pro bono or pay $500, Mississippi court suggests
The Mississippi Supreme Court is considering requiring attorneys to perform 20 hours of pro bono service or else pay a $500 fee. If adopted, Mississippi would be the only state to require pro bono service, according to the American Bar Association. The state high court unveiled the proposal in late August, and public comments are due by Friday. Mississippi Bar Association General Counsel Adam Kilgore says the group plans to send its comments this week, but remains mum about the bar's position.
Law.com brings you the National Law Journal story
ATJ commission member arrested for DUI
A member of the state Supreme Court's Access to Justice Commission was charged with driving under the influence after a traffic stop on Sunday night in Nashville. Francis Guess is serving a two-year term on the commission, as well as having served in Gov. Lamar Alexander's cabinet as the commissioner of both the Department of Labor and the Department of General Services.
The Tennesean reports
Tennessee well-stocked with execution drug, despite shortage elsewhere
Nine states, including Tennessee, have executions scheduled before the end of January 2011. A shortage of a drug is forcing delays in some states. Several of the 35 states that rely on lethal injection are either scrambling to find sodium thiopental -- an anesthetic that renders the condemned inmate unconscious -- or considering using another drug. But both routes are strewn with legal or ethical roadblocks. "It won't affect us," Tennessee Department of Correction spokeswoman Dorinda Carter said. "We're ready to go forward," saying there is no shortage of the drug here, there are no delays and the state DOC has never run out of the drug.
The Associated Press reports
Law professor near shots fired on Texas campus
Classes at the University of Texas at Austin were canceled today after two gunmen in white shirts, ties and face masks shot with an automatic weapon in the campus library. One man turned the gun on himself, but the other is still being sought by authorities. No one else was injured, although for adjunct law professor Randall Wilhite, it was too close for comfort. "He was about 10 feet in front of me. I was very vulnerable had he wanted to shoot at me." The campus was shut down, which was good for Whilhite. "I was a little too rattled to teach the class," he said.
The Statesman follows the story on its blog
Election 2010
Haslam, McWherter to debate at UT Knoxville
Gubernatorial candidates Bill Haslam and Mike McWherter will debate on Thursday, Oct. 7, at the University of Tennessee at Knoxville. Sponsored by WBIR, the News Sentinel and UT and its Howard H. Baker Jr. Center for Public Policy, the debate begins at 8 p.m. Eastern Time in the Cox Auditorium in the Alumni Memorial Building on the UT Knoxville campus.
Learn more from UT
Rutherford election official fired, rehired, will retire
Rutherford County election administrator Hooper Penuel will be on paid suspension until he retires at the end of the year because the county missed a day of early voting that state law required. He will receive 75 percent of his salary. Penuel was initially fired last month, but commissioners rehired him, placing him on paid leave pending a due process hearing.
WSMV-TV reported the news
Upcoming
Local groups support national report on racial profiling
A report demonstrating the need to address racial, ethnic, religious and national origin profiling across the country will be discussed Thursday, Sept. 30 at 7:40 a.m. at Coleman Park Community Center, 384 Thompson Lane in Nashville. Members of the Tennessee Racial Profiling Commission, including Shirley Sims Saldana of the Metro Human Relations Commission, David Esquivel of Bass Berry and Sims and others, will talk about Tennessee stories of racial profiling featured in the national report called "Faces of Racial Profiling." The report includes the finding that the "patchwork of laws dealing with racial profiling have created a system that is too burdensome for victims of profiling to navigate." The event is supported by the Tennessee Immigrant and Refugee Rights Coalition, the Tennessee NAACP, the ACLU of Tennessee, Oasis Center, the Salahadeen Center of Nashville and the Urban Epicenter.
Learn more about the national report
Tax relief clinic for flood victims on Thursday
A community meeting to explain the IRS casualty loss tax deduction for flood victims will be at 7 p.m. on Thursday, Sept. 30, at the Belle Meade United Methodist Church, 121 Davidson Road, in Nashville. The Mayor's Flood Recovery Team has assembled a group of local tax experts to meet with residents who have questions about amending their 2009 or preparing to file their 2010 federal income tax. Robert Nadler of The Legal Aid Society of Middle Tennessee will give an introduction to casualty loss, then lead a basic question and answer session.
Learn more
Disciplinary Actions
4 lawyers reinstated
Mark Edward Davidson of Millington, Michael Gilman Stewart of Nashville, Andrew John Tavi of Franklin and Christine M. Vanasse of Decatur, Ga., have been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education. They all were suspended on Sept. 7 for failing to meet 2009 CLE requirements.
View all attorneys suspended and reinstated for 2009 CLE violations
New York lawyer reinstated
Katrina Michelle Snow of Brooklyn, N.Y., was reinstated to the practice of law in Tennessee on Sept. 24 after complying with requirements for continuing legal education. She was suspended on Sept. 1, 2006, for not completing 2005 CLE hours.
View all attorneys suspended and reinstated for 2005 CLE violations
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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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