New Laws Passed

On July 1^st, T.C.A. 39-40-55 has been amended to allow the use of transdermal monitoring device or some other alcohol or drug monitoring device as a condition of pretrial diversion, parole, probation, judicial diversion or DUI probation where alcohol is alleged as a contributing factor the alleged act.

On July 1^st, T.C.A. 39-131 has been amended to require that the required period of jail time for second and third convictions for domestic assault where bodily injury results must be served in consecutive days and served day for day. It further that a defendant under these circumstances must also serve the difference of the time actually served and the maximum sentence allowed on probation.

Effective July 1^st, the police must obtain a search warrant before searching, examining, extracting or duplicating data from a cellular phone. This burden may also be satisfied if informed consent is provided, the phone has been abandoned or exigent circumstances exist.

Effective July 1^st, one is not required to possess a hand gun permit to have possession of a firearm or ammunition in their vehicle so long as they are not otherwise prohibited from possession of such weapon and have lawful possession of the vehicle.

For more information visit:  http://myspartanews.com/articles/2014/06/30/news/doc53b14e07f3246742118943.txt

HIGH COURT RULES FOR DEATH-ROW INMATES WITH LOW IQ

WASHINGTON (AP) — Twelve years after barring execution of the mentally disabled, the Supreme Court on Tuesday prohibited states in borderline cases from relying only on intelligence test scores to determine whether a death row inmate is eligible to be executed.

In a 5-4 decision that split the court's liberal and conservative justices, the court said that Florida and a handful of other states must look beyond IQ scores when inmates test in the range of 70 to 75. IQ tests have a margin of error, and those inmates whose scores fall within the margin must be allowed to present other evidence of mental disability, Justice Anthony Kennedy said in his majority opinion.

A score of 70 is widely accepted as a marker of mental disability, but medical professionals say people who score as high as 75 can be considered intellectually disabled because of the test's margin of error.

In 2002, the court said that executing mentally disabled inmates violates the Eighth Amendment prohibition on cruel and unusual punishment. But until Tuesday, the justices left to the states the determination of who is mentally disabled.

To read more click here.

Planning for those with Special Needs

Estate planning is important for every family but it is essential for those with a loved one with a developmental disability or delay. While outlining a caregiver for your loved one is important, there are many more complex considerations to address. King & King, offers an array of services focuses on assisting individuals with disabilities and their families in meeting and maintaining their legal, education, employment, medical and social needs. King and King, can assist those in need from the date of their diagnosis throughout their lives by developing an estate plan which allows your loved one to qualify for State or Federal supports, advocating for supports throughout educational endeavors, obtaining conservatorship when your loved one reaches the age of majority, evaluating alternatives to conservatorship if appropriate, advising of programs to assist your family, advising of community supports for your family and establishing a Special Needs Trust to allow your loved one to continue to qualify for services once received. Developing a plan for your loved one with a developmental disability or delay can be one of the most important things you do to protect their future.

Conservatorship Case

In the recent case In Re: Conservatorship of Jack Wayne Turner, the Mother sought modification of a prior court order providing conservatorship of her disabled son to his Father and for modification of the order allowing her only supervised visitation.  After careful consideration of the case as a whole, the trial court ordered that the Mother increased visitation, but upheld the restriction that all visitation be supervised. The trial court too held that the Father had discretion to record any communications between the Mother and their son. The Mother appeals to the Tennessee Court of Appeals arguing the restrictions of the trial court were an unconstitutional restraint on her free speech and that the trial court abused its discretion in allowing her only eight hours of supervised visitation per month. The Tennessee Court of Appeals upheld the ruling of the trial court finding that the “modern rule” allowed defamatory speech to be enjoined if it was determined that the statements were false and is allowable only if the injunction is narrowly tailored to prohibit that speech which was determined to be false. They found that the injunction of the trial court satisfied both restrictions. With regard to the issue of the Mother’s supervised visitation, the Tennessee Court of Appeal again upheld the trial court finding that the trial court acted in efforts to preserve the best interest of the parties disabled son by providing safeguards for him against the Mother’s negative actions. They further found that given the Mother’s history of disregarding the orders of the trial court, additional actions were warranted to ensure the court’s orders would be followed. This case is significant as it upholds the acts of the Tennessee Courts to protect those subject to conservatorships from potentially harmful acts of others, even if the means of doing so are highly restrictive. It too furthers the already well-established emphasis on the best interest of those subject to conservatorship actions.  

Department of Homeland Security: Immigration

The Department of Homeland Security is currently considering a policy change that would limit deportation of undocumented immigrants who may have repeat immigration violations but little or no criminal record.

United States Supreme Court

On April 7, 2014, the United States Supreme Court declined to hear arguments over businesses refusing service to gay and lesbian customers. The appeal originated by a photography studio which refused to provide service to a lesbian couple. The decline to hear the case upholds the ruling of the appellate court finding that the studio discriminated against the couple under state law.

Steve Dickerson et al. v. Regions Bank et al.

Plaintiffs, husband and wife, filed this action on February 17, 2009, to quiet title to property they own in Williamson County, Tennessee. At issue was a Deed of Trust that secured a 1997 promissory note, with an original maturity date in 1998, executed by a South Carolina limited liability company of which the plaintiff husband was a member. Plaintiffs asserted, inter alia, that the statute of limitations for the 1997 note and deed of trust had lapsed; therefore, the deed of trust encumbering their property should be released. Defendant Beta, LLC, filed a counterclaim for judicial foreclosure asserting it was the assignee of an October 8, 1998 renewal note with a maturity date of October 1999, the maturity date of which was subsequently extended to October 2000 pursuant to a Change in Terms Agreement executed in October 1999. 

It is based on the Change in Terms Agreement that Beta insists the statute of limitations had not lapsed and it is entitled to enforce the deed of trust. Although Beta was unable to produce an original or photocopy of an October 1998 renewal promissory note or evidence that complied with Tenn. Code Ann. § 24-8-101 to prove it was a lost negotiable instrument, the trial court held that a copy of the 1999 Change of Terms Agreement was sufficient to established the existence of the October 1998 renewal note and the extension of the maturity date to 2000; thus the statute of limitations had not run and Beta was vested with the right to enforce the deed of trust. Therefore, the court dismissed Plaintiffs complaint to quiet title and ruled in favor of Beta on the issue of foreclosure. On appeal Plaintiffs contend that the evidence was insufficient to support the court’s rulings. Particularly, Plaintiffs contend the trial court erred in finding that the Change in Terms Agreement dated October 8, 1999, was sufficient to establish Beta’s claims under an October 1998 promissory note of which there is no copy. We have determined the trial court erred in finding that the evidence was sufficient to satisfy Beta’s burden of proof as the foreclosing party. We, therefore, reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion, including a determination of the specific relief to which Plaintiffs may be entitled. Plaintiffs, husband and wife, filed this action on February 17, 2009, to quiet title to property they own in Williamson County, Tennessee. At issue was a Deed of Trust that secured a 1997 promissory note, with an original maturity date in 1998, executed by a South Carolina limited liability company of which the plaintiff husband was a member. Plaintiffs asserted, inter alia, that the statute of limitations for the 1997 note and deed of trust had lapsed; therefore, the deed of trust encumbering their property should be released. Defendant Beta, LLC, filed a counterclaim for judicial foreclosure asserting it was the assignee of an October 8, 1998 renewal note with a maturity date of October 1999, the maturity date of which was subsequently extended to October 2000 pursuant to a Change in Terms Agreement executed in October 1999. It is based on the Change in Terms Agreement that Beta insists the statute of limitations had not lapsed and it is entitled to enforce the deed of trust. Although Beta was unable to produce an original or photocopy of an October 1998 renewal promissory note or evidence that complied with Tenn. Code Ann. § 24-8-101 to prove it was a lost negotiable instrument, the trial court held that a copy of the 1999 Change of Terms Agreement was sufficient to established the existence of the October 1998 renewal note and the extension of the maturity date to 2000; thus the statute of limitations had not run and Beta was vested with the right to enforce the deed of trust. Therefore, the court dismissed Plaintiffs complaint to quiet title and ruled in favor of Beta on the issue of foreclosure. 

On appeal Plaintiffs contend that the evidence was insufficient to support the court’s rulings. Particularly, Plaintiffs contend the trial court erred in finding that the Change in Terms Agreement dated October 8, 1999, was sufficient to establish Beta’s claims under an October 1998 promissory note of which there is no copy. We have determined the trial court erred in finding that the evidence was sufficient to satisfy Beta’s burden of proof as the foreclosing party. We, therefore, reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion, including a determination of the specific relief to

which Plaintiffs may be entitled.
Read more here.

Pseudoephedrine Purchases and Methamphetamine

The Senate Judiciary Committee recently passed Governor Bill Haslam’s plan to battle the growing issue of methamphetamine use and addiction in Tennessee by limiting the purchase of pseudoephedrine to two twenty table boxes per month with a cap of six boxes annually. The fight here continues as many in the House and Senate push for pseudoephedrine to be available only by prescription. Pseudoephedrine is primary ingredient for the manufacture of methamphetamine and an active ingredient in many cold and allergy medications.

Tennessee General Assembly Considers Bill

The Tennessee General Assembly is considering Senate Bill 2495 (House Bill 2445) which would authorize the production, sale, possession and research of industrial hemp.  This bill defines "industrial hemp" as the plants and plant parts of the genera cannabis that do not contain a delta-9 tetrahydrocannabinol (THC) concentration more than three tenths of one percent on a dry mass basis, grown from certified seed. This bill requires the department of agriculture to regulate the farming of industrial hemp through a system of licensure and rules. Any person who grows industrial hemp without a license will be subject to prosecution in the same manner as a person who is growing marijuana. This bill specifically excludes industrial hemp from the definitions of illegal cannabis and schedule VI controlled substances. This bill also includes industrial hemp as a farm product under the Right to Farm Act, which means industrial hemp operations will be presumed to not be a nuisance under such Act.

Ray Hansen, content specialist, AgMRC, Iowa State University provided an “industrial hemp profile” which provides a thorough history of industrial hemp, including its production in the United States and an explanation of the differences between industrial hemp and marijuana.  The Profile was updated August 2012 by Malinda Geisler, AgMRC, Iowa State University. 

To view it, click here.

Keep an eye on Senate Bill 2495 (House Bill 2445). 

Office of the Attorney General: Farm Truck

On March 12, 2014, The State of Tennessee, Office of the Attorney General, issued opinion No. 14-30 which addresses the question, “When a farmer contracts to raise, produce, or feed poultry for the owner of the poultry, is a truck used to transport poultry from the farm pursuant to the contract between the farmer and the owner of the poultry a “farm truck” for purposes of weight restrictions on State highways (not including interstates).  Although the provision’s definition of farm truck did not specifically mention the transportation of poultry, the Attorney General reasoned that since the provision includes “livestock…or other agricultural products”, it was the intention of the General Assembly to include poultry.  Thus, trucks carrying poultry to market by a farmer under contract to the owner of the poultry shall be considered a “farm truck”.

You can now rest easy.  I can’t say the same for the chickens. Read more here.

State v. Bishop

In State v. Bishop, Courtney Bishop was found guilty of attempted  aggravated robbery and first degree felony murder by the trial court.  Upon review, the Supreme Court of Tennessee held that information provided by an accomplice when corroborated with independent investigation is sufficient to establish probable cause for an arrest. The Court also held that an in court confession does not require corroboration to support a conviction.

Read more here.

Riegel v. Wilkerson

This is an easement case in which the Appellant, the servient estate owner, appeals the trial court’s grant of injunctive relief in favor of the Appellee, the dominant estate owner. Specifically, the trial court found that Appellant had interfered with Appellee’s use of the easement by erecting a gate across it. The trial judge ordered the Appellant to remove the gate, and enjoined her from further interference with the Appellee’s use of the easement. Discerning no error, we affirm and remand.

View the full details of the case here.

Immigration Matter

United States Supreme Court declined to hear appeals regarding anti-immigrant laws finding that the issues of immigration are a matter for federal agencies, not local governments, to regulate. Hazleton, Pennsylvania and Farmers Ranch, Texas attempted to enact housing and employment rules directly aimed at people in the country illegally. Such rules included fining landlords who rented to people living in the county illegally, denying businesses permits who gave jobs to persons in the country illegally and requiring prospective tenants to register with City Hall for a rental permit.

SMALL BUSINESS HEALTH CHECK-UP

Every business, regardless of size, occasionally needs a check-up.  The best practice is to annually review your procedures, agreements and business practices to see what works and what needs changing.  Here is a small business health check to help you get started.

SMALL BUSINESS HEALTH CHECK-UP

I. General Information:
A. Name
B. Address
C. Business entity, if any
D. Number of members/shareholders/partners
E. Are the partners related by blood or marriage?

II. Protection Against Liability
A. Are you utilizing a limited liability entity such as an LLC or S-corporation to protect your personal assets?
B. Is the limited liability entity you are using right for your business?
C. Are you holding annual meetings as required by your Bylaws or Operating Agreement and maintaining minutes of those meetings?
D. Are you using separate checking accounts for your business and personal expenses?
E. Are your directors, officers or members protected from liability and indemnified?

III. Employee Relations
A. Have you collected the appropriate information from your employees to ensure their legal status?
B. Do you have an employment handbook with policies to protect and guide you and your employees?
C. Have you filed the required forms for unemployment and payroll withholding?
D. Do you have policies in place to avoid discriminatory employment practices in hiring, firing and employing people?
E. Are you properly classifying people as employees or independent contractors?
F. Do you have well drafted non-compete and non-disclosure agreements?

IV. Lease Agreements
A. Are your office or equipment leases flexible?
B. Do you clearly understand your lease costs?
C. Are the leases automatically renewable?
D. Do you have a deadline to provide notice to avoid an automatic renewal provision, and do you have a system in place to remind you of the deadline?
E. Have you provided ways to void long-term agreements if there is a change in circumstances?

V. Clear Contracts
A. Are your company’s important agreements set forth in carefully drafted written contracts?
B. Do you have a system for keeping track of important obligations and notice requirements under your contracts and agreements?
C. Have you structured your contracts to minimize personal and business exposure to liability when possible?
D. Can the average person understand your contract?
E. Does your company’s agreements contain protection from liability for defective products and services?
F. Do you have protection in your default clauses so you can recover interest, attorney fees and other expenses if you have to make efforts to collect from a customer?

VI. Litigation Prevention
A. Do your contracts require parties to resolve disputes with cost-effective arbitration or mediation provisions?
B. Do your agreements limit the other party’s right to sue you?

VII. Compliance with Laws and Regulations
A. Does your company undergo periodic legal checkups to ensure compliance with the latest laws and regulations?
B. Do you have current permits for all your business operations?
C. Do you know what your company’s environmental obligations are?
D. Is your advertising truthful and not deceptive?
E. As you expand into new states, are you properly registering your business?
F. As you work in other states, are you paying taxes to the proper local, state and federal agencies?

VIII. Internet Business
A. Is your website content protected?
B. Is your use of third party content allowed?
C. Is your domain name protected?
D. Is customers’ information, such as credit card information, secure?

Employee Online Privacy Act of 2014

"In a meeting this morning, the group was discussing the use of Social Media,
including LinkedIn and Facebook, when researching potential customers"

To read the rest of this post learn more about the Employee Online Privacy Act of 2014, click here.

State v. Pollard

To impose a consecutive sentence based on the dangerous offender classification the court must address the factors required by statute on the record.

The defendant was convicted of felony murder, first degree premeditated murder, and

especially aggravated robbery. After merging the murder convictions, the trial court imposed

consecutive sentences of life for the murder and eighteen years for the especially aggravated

robbery. On appeal, the Court of Criminal Appeals affirmed the convictions but remanded

to the trial court for a proper determination of whether the sentences should be served

consecutively or concurrently. We hold that, when a trial court places findings on the record

to support its sentencing decision, the applicable standard of appellate review for a challenge

to the imposition of consecutive sentences is abuse of discretion with a presumption of

reasonableness. Because, however, the trial court failed to address the factors required to

impose consecutive sentences based on the dangerous offender classification, we affirm the

judgment of the Court of Criminal Appeals and remand to the trial court for a new sentencing

hearing. To read the case in detail, click here. 

Modification of a Parenting Plan in a Post-divorce Action

If the issue before the court is a modification of the court’s prior decree

pertaining to custody, the petitioner must prove by a preponderance of the

evidence a material change in circumstance. A material change of

circumstance does not require a showing of a substantial risk of harm to the

child. A material change of circumstance may include, but is not limited to,

failures to adhere to the parenting plan or an order of custody and visitation or

circumstances that make the parenting plan no longer in the best interest of the child. 

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

October 15, 2013 Session

ELIZABETH TIMMONS AUSTIN V. BENJAMIN HOLT GRAY

Appeal from the Circuit Court for Davidson County

No. 06D63 Phillip R. Robinson, Judge

No. M2013-00708-COA-R3-CV - Filed December 18, 2013

This appeal arises from the modification of a parenting plan in a post-divorce action. In the initial Permanent Parenting Plan, Mother was designated the primary residential parent of their son. Four years later, Father filed a Petition to Modify the Parenting Plan, alleging that multiple material changes in circumstances had occurred and that it was in the child’s best interest for Father to be the primary residential parent. While the petition was pending, Mother was involuntarily committed to a psychiatric facility; immediately thereafter, on Father’s pendente lite motion, the trial court designated Father as primary residential parent with sole decision-making authority pending further adjudication. Father then amended his Petition to enumerate additional material changes. Some eight months later, the trial court conducted a trial. The court found that Mother’s mental health, Mother’s attitude and untoward actions directed at Father, the child’s manipulation and power struggles with his parents; the child’s enrollment in an out-of-state boarding school, and multiple other factors demonstrated that a material change in circumstances had occurred and that it was in their son’s best interest for Father to serve as the primary residential parent with sole decision making authority. Mother appeals claiming the trial court erred in determining that a material change in circumstances existed and that a modification was in the child’s best interest. We affirm.

To read the case in detail, click here.

Dominion v. Dataium

This recent case from the Tennessee Court of Appeals addresses a situation where employees and an investor from one company break away to form a competitor.  The original company files suit alleging several claims, including breach of fiduciary duty, breach of duty of loyalty and good faith, intentional interference with contractual relationships, unfair competition, breach of duty not to solicit employees and breach of covenants not to compete.

To read the full details of the case, click here 

Case of Enforceability of Mediated Agreement and Attorney Fee

The court can set aside a mediated agreement if it finds bad faith on the part of a party.

Whether to award attorney’s fees in a divorce proceeding is in the discretion of the trial court.
Below is a recent case where this occurred.

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

October 18, 2013 Session

KALA SHAY HUNN v. KEVIN CARLTON HUNN

In this divorce proceeding, Father appeals the trial court’s award of attorney’s fees to Mother. Finding no error, we affirm. Additionally, we grant Mother her attorney’s fees on appeal.

To read the entire case in detail, click here.