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.

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.

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 

Underemployment & Child Support

Sharon Sitz and William Sitz were married for 16 years until Sharon sued William for divorce. The court awarded her a divorce on the ground of inappropriate marital conduct and adopted her proposed parenting plan. This made her the primary residential parent of their minor child and divided the marital property. Furthermore, the court determined that the husband was voluntarily underemployed and imputed additional income him in order to calculate his child support obligation.

To read the case in detail, click here.

Modified Grandparent Visitation

The Tennessee Supreme Court has held that the grandparents are essentially on the same footing as a “parent v. parent” modification.  The moving party must show by a preponderance of the evidence that there has been a material change in circumstances and that change makes a modification or termination of grandparent visitation in the child’s best interests.

To read details on a case of modified grandparent visitation, click here.

Mother's Request for Relocation Denied

In this case, a parent sought to relocate to Wisconsin with her new husband and her two children. The paternal father of the children opposed the relocation. The trial court concluded that the relocation did not have a reasonable purpose and could be harmful to the children.

Read the full case here.

Case on Grandparent Visitation

This recent case from the Tennessee Court of Appeals, McGarity and McGarity v. Jerrolds and Jerrolds deals with the issue of whether paternal grandparents whose son voluntarily surrendered his parental rights and allowed a step-father to adopt will be granted visitation under the Tennessee Grandparent Visitation Statute. Judge Stafford delivered with Judges Highers and Farmer joining. The case gives an incredibly thorough analysis of the law regarding grandparent visitation and the standards that must be met. In addition, the Court looks at the issues of attorney-submitted proposed findings of fact and conclusions of law and the issue of raising evidentiary objections at the appellate level but not at the trial level.

To read the full case, click here.

Child Custody and Property Division

In the case of Terri Ann Kelly v. Willard Reed Kelly, Terri Ann Kelly ("Wife") was awarded 1000% of the marital assets by the Trial Court. She had sued Willard Reed Kelly ("Husband") for divorce after 18 years of marriage and was awarded custody of the parties' son, Will. She was also awarded attorney's fees. The Court of Appeals, though, modified the Trial Court's division of the marital estate and alimony to Wife, giving her 300%.

The full case can be found here.

Law School Enrollment Declines

Some law school administrators believe that in the near future there may be a shortage of lawyers as law school enrollment continues to decline. Tennessee law schools are no exception to the declining enrollment.

However, not everybody believes this a bad thing for the current students. The class sizes will be smaller and more scholarship opportunities will be available. Law schools have dropped fees and lowered tuition.

The job market will be completely different for the last half of this decade. Also, it seems that the future lawyers of America will be smarter and more competitive. The students have been putting out higher LSAT scores and median GPAs.

To find out more on this subject read this article from The Nashville Ledger.

6 Easy Rules for Working with Your Attorney

At King & King, we understand how stressful a legal battle can be, especially a divorce. You are angry, upset, and scared. People can do or say things while going through a divorce that normally they would not do. Here are some simple rules that will make the legal process easier for you and your attorney.

1. Be Polite
Your attorney understands the amount of stress you are under. Please, remember that your attorney and his or her staff are there to help you. Be civil and courteous. Try not to snap back, but take calming breaths and explain your frustration. Attorneys are people too and need respect.

2. Trust Your Attorney’s Knowledge
You hired your attorney for a reason. You respect the legal knowledge and experience that the attorney has collected. Family and friends may have gone through a divorce also. It is alright to ask them about their experience handling their divorce. However, keep in mind that every case is different and Judges are not the same. Just because your friend’s case worked out one way does not mean yours will work out the same. Trust the attorney you hired to know what the Judge is or is not looking for. The attorney knows what the Judge wants to see to prove your case.

3. Take Responsibility for Your Actions
The facts in your case took place before you ever met your attorney. If you are at fault for the end or your marriage, you will need to take responsibility for it. Most Judges appreciate this. They would rather you admit your mistakes.

4. Don’t Look for Punishment
The Court is not here to punish anyone. If your spouse wronged you, the Court is not going to unfairly punish him or her even if they were cheating. Find peace in the fact that justice will be done.

5. Payments
Attorneys are there to help you through a difficult time, but remember attorneys need to make a living too. When you sign a Legal Representation Agreement with an attorney, he or she is agreeing to represent you. In return, you are agreeing to pay your attorney for those services. Carefully look at the retainer fee ahead of time to make sure it is within your budget. If you get behind on your bills, talk to your attorney. He or she may be willing to work with you so you can make payment arrangements.

6. Ask Questions
Your attorney is only responsible for what he or she says. You are responsible for what you hear. If you don’t understand something, feel free to ask questions about it. Your attorney has no other way of knowing if you don’t understand something. Don’t wait until after settlement documents are signed and filed with the Court to tell your attorney that you didn’t understand what you were signing. It’s your attorney’s job to make sure you know what you are getting into, but unfortunately, we can’t read minds.

The Haggard Case

The Haggard case is a good example of the Court making an equitable division of marital property. The Court even corrected itself on a Motion to Alter or Amend to get an equitable division. This is also an example of the Court being big enough to admit it made a mistake. 

After the trial court entered a final decree of divorce, the wife filed a motion to alter or amend, seeking a modification of the division of marital property. The trial court granted the motion to alter or amend, stating that the court was operating under a misconception concerning the wife’s position at trial, which rendered the division of marital property inequitable. The court awarded an asset previously awarded to the husband to the wife instead. Husband appeals. We affirm...read the full case here.

ROBERT TREY WOOD, III v. JENNIFER ROSE WOOD

The following is an appeal from Chancellor Maloan who presides over Obion and Weakley Counties. His ruling was upheld. 

Court of Appeals of Tennessee at Jackson:

The parties, Appellee Robert Trey Wood, III (“Father”) and Appellant Jennifer Rose Wood (“Mother”) were married in 2007 and a child was born to them the same year. The parties separated in the fall of 2010, with Mother taking the child from the parties’ home in Union City, Tennessee and moving to Jackson, Tennessee. As a result of the separation, Mother initiallydenied Father visitation with the child. Father filed for divorce on November 12, 2010. On the same day, Father filed a motion to designate a temporary residential parent for the minor child. On November 17, 2010, Mother filed a response to the motion, seeking to be named the primary residential parent. Mother later filed a response and countercomplaint to Father’s divorce complaint. The parties eventually entered into a consent order in which Mother was temporarily named the primary residential parent and Father was awarded reasonable visitation. After Mother was named primary residential parent, sheenrolled the child in a college preparatory private school at her own expense...click here to read more.

Call King & King at 731-664-6864 or visit us at http://www.kingplc.com/ to find out how we can help you.