AUGUST 2013 | VOLUME 49, NO. 8 TBA.ORG

The Cradle Will Rock Intentional Misrepresentation of Paternity

ALSO : When the U.S. Attorney Sued to Remove Half the Supreme Court

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COVER STORY 12 The Cradle Will Rock Intentional Misrepresentation of Paternity by Lacy A. Daniel

FEATURE STORIES 20 When the U.S. Attorney Sued to Remove Half the The Quo Warranto Cases of 1870 by Sam D. Elliott

3 PRESIDENT’S PERSPECTIVE Your Profession Needs You by Cynthia Richardson Wyrick 4 LETTERS JEST IS FOR ALL by Arnie Glick 5 YOU NEED TO KNOW NEWS: Justice Holder to Retire | Committee and Section Chairs Named PEOPLE | LICENSURE & DISCIPLINE 28 BOOK REVIEW Congressman Lincoln: The Making of America’s Greatest President by Chris DeRose, Reviewed by Donald F. Paine 29 WHERE THERE’S A WILL ON THE It’s Trust Time in Tennessee! COVER by Eddy R. Smith What are the conse - quences of lying about who the father 33 PAINE ON PROCEDURE of a child is? See Practical Advice for Collecting a Judgment page 12. Our model, 4-month-old Collins, by Donald F. Paine is the daughter of former TBA Access to Justice Coordinator 34 BUT SERIOUSLY, FOLKS! Sarah Hayman and Football, Corn from a Jar ... and Legal Fees — no question about by Bill Haltom Take a picture of this with it — John Hayman. your smart phone and read Photo by Sarah the Tennessee Bar Journal Hayman, with thanks 36 CLASSIFIED ADVERTISING at www.tba.org to Jenny Jones. The cOmpleTe

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2 | TENNESSEE BAR JOURNAL AUGUST 2013 PRESIDENT’S PERSPECTIVE BY CYNTHIA RICHARDSON WYRICK Your Profession Needs You I think we can all agree that our legal system is under attack. In the last year, we have seen the end (very temporarily, we hope) of our merit selection system for electing judges and the dismantling of our court-based workers’ compensation system. We also are facing attacks on our jury system through continuing efforts at tort “reform.” While we have won some of the battles as our profession has been

attacked, it would be easy to feel as attempted to establish a relationship though we have lost the war. I submit to with our legislators? (3) Have we you that the war is not over, and it is worked in and/or contributed to the “The truth is that our time for someone to do something about campaigns of those running for office these attacks. That someone is you! who support our legal system? (4) Have legislators want to hear For many years, your association has our local bar associations invited our from each of us — not focused about 10 percent of your dues legislators to speak at a meeting? (5) on advocating for our judicial system When we have events, do we recognize because we are lawyers or and the profession in the legislature, our legislators when we recognize our using the services of our staff and judges? (6) Have we offered to lend a bar association leaders, but professional lobbyists; however, in these hand to our lawyer-legislators during times of ever-increasing attacks on our session when they are required to be because we are voters! … legal system, the efforts of paid lobby - away from their office? Because we are also ists are not enough. Our legislators You may have answered “no” to most must hear from each of us! of the questions above. Many of us have lawyers, we are in a At our recent convention, a meeting assumed that because we are members was convened to discuss a strategy for of a profession made up of advocates, a unique position to provide encouraging more lawyers to run for large number of our members are assistance to our office, especially given that the number already effectively advocating for our of lawyers in our state legislature is at profession. Many of us also assume that legislators.” an all-time low. There was also discus - our opinions will not actually matter to sion regarding how our profession our legislators. The truth is that our could effectively advocate in the legisla - legislators want to hear from each of us ture on issues that we face. A number of — not because we are lawyers or bar our lawyer-legislators took time out of association leaders, but because we are their busy schedules to attend this voters! With that said, because we are meeting. The insights that we gained also lawyers, we are in a unique posi - from them surprised me, and I think tion to provide assistance to our legisla - they will you, too. tors through sharing our legal insights Our legislators are not actually regarding the potential effect that a hearing from very many members of proposed bill would have and any legal our profession. On the other hand, they issues we see with the way the bill is are hearing from a large number of actually drafted. Even our lawyer- doctors, dentists, and business owners. legislators are not experts in every area In light of this information, it is time of the law, so your insights as an expert that we ask ourselves some important in a particular field can be invaluable. questions: (1) Do we know which legis - I know you are thinking that this lators actually represent us? (2) Have we Continued on page 4

AUGUST 2013 TENNESSEE BAR JOURNAL | 3 LETTERS OF THE LAW PRESIDENT continued from page 3

article is ill-timed, as we are months Thanks, Mr. Armstrong! help with a legal late-life love issue.] away from the next legislative session; Attorney Ralph Armstrong (Chat - however, there could be no better time tanooga, age 83) passed away and his The answer is yes, on April 22 in a for you to be reading this article. Your memorial service was held [June 14]. I small Anglican church in Franklin. legislators actually need to hear from was a paralegal for another attorney and Living happily in Brentwood with my you right now for two very important he was an avid reader of the Tennessee bride. You will not find two happier old reasons. The first is that they have Bar Association magazine. He intro - people. Williamson County is a more time to sit down with you or duced the magazine to me and we once wonderful place to live. come to speak at your association’s discussed the article on whether or not — Richard R. Ruth Jr., Senior Counselor meeting because they are not in a dying statement was admissible in and Pro Bono Attorney Emeritus session. The second is that you will be court. Even though he didn’t really focusing on building a relationship practice law by the time I met him we with them, rather than lobbying them had many wonderful conversations More Praise for ‘Senior Moments’ to take a particular position on about the law, and he taught me the art [This letter was written to TBJ columnist pending legislation. By working to of taking a witness statement. So the Monica Franklin.] build relationships with your legisla - magazine is read by people that enjoy it, I just read your excellent article on tors now, you are laying the ground - and the information is passed on to powers of attorney in the Tennessee Bar work that will place you in a position non-lawyers who want to learn some - Journal (“Punch Up Your Power of to effectively advocate when the next thing new. Thanks in memory of Ralph. Attorney,” by Monica Franklin. Thanks legislative session begins. — Laura L. Mott for writing that very helpful article. Despite the information above, you Many lawyers and their clients — may still be a little unsure about Did He Tie the Knot or Not? including me and mine — will benefit taking that first step in developing [This is in response to our question of Mr. from your helpful hints. relationships with your legislators. Richard R. Ruth Jr., after he wrote to thank — Joe Judkins, Oak Ridge You can rest easy as your association is TBJ columnist Monica Franklin for her here to help. A new legislative effort this year will focus on developing a WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publication grass-roots network of members to on the basis of timeliness, taste, clarity and space. They should be typed and include the advocate for our justice system. To author’s name, address and phone number (for verification purposes). Please send your comments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058; that end, we have hired a public EMAIL: [email protected]. policy coordinator to work with members on this very issue, along with many others. As we all know, life is about rela - tionships, and those who influence us the most are those with whom we have built relationships of trust and respect. Your legislators are no different from the rest of us, so we cannot expect to be in a position to influence them on behalf of our profession if they do not know us, or only hear from us when our hands are out. The time is now for our twelve thousand members to take the steps necessary to become a powerful voice for our profession. Remember, Together We Make a Difference!

TBA President CINDY WYRICK practices law with Ogle, Gass & Richardson PC in Sevierville.

4 | TENNESSEE BAR JOURNAL AUGUST 2013 YOU NEED TO KNOW NEWS

BRIEFS How to Fill the Seat Is the Question Vanderbilt, American Judicature Holder to Retire in 2014 Society Join Efforts Tennessee said in a letter to Gov. Bill Haslam. The American Judicature Society (AJS) Supreme Court Holder’s announcement came at a and Vanderbilt Law School announced Justice Janice M. time when changes in the selection an affiliation agreement July 1 that, Holder process for judges are both under way according to the groups, will result in announced June and under consideration, complicating joint educational programming, publica - 26 that she will and confusing procedures for filling her tions and new research. In addition, AJS retire at the end seat. The announcement came too late will relocate from Des Moines, Iowa, to of her current for Tennessee’s Judicial Nominating the Vanderbilt campus in Nashville. term and will not Commission to suggest successors Vanderbilt Law Dean Chris Guthrie said seek re-election before the commission’s legal authority the partnership provides the opportu - in the August 2014 judicial retention expired June 30. nity to “strengthen ties to the bench and election. Gavel Grab reports that spokes - bar, conduct academic programming in Holder became the third woman to people for Gov. Bill Haslam and the areas of mutual interest, create new serve on the Tennessee Supreme Court Administrative Office of the Courts educational and professional opportuni - and the first to serve as chief justice. “It have expressed that it is unclear how ties for students, facilitate faculty has been my privilege to serve the Justice Holder’s seat will be filled. research, and enhance the reach and people of Tennessee as a trial judge and Holder also recently was honored by reputation of the law school’s dispute Supreme Court justice — and an honor her alma mater, the University of Pitts - resolution and criminal justice to have been selected by my fellow burgh, for her leadership and dedica - program.” With the move to Tennessee, justices as the first female chief justice tion to the legal needs of Tennesseans AJS executive director Seth Anderson in our state’s history,” Justice Holder throughout her career. decided to remain in Iowa so the group is searching for a new director. LAET Honors Lawyers for Pro Bono Work New Lawyers Sworn In In June, Legal Aid of East Tennessee Close to 200 attorneys successfully honored attorneys and firms that passed the bar exam in February, donated their time serving pro bono and many took part in admission clients over the past year. U.S. Rep ceremonies at War Memorial Audi - Chuck Fleischmann received the torium in Nashville. Following Chief Justice William M. Barker introductions and administration Equal Access to Justice Award for his of the oath by Chief Justice Gary lifelong commitment to access to Max Bahner receives the Bruce C. Bailey Volunteer of Wade, the group heard remarks justice. Chattanooga attorney Max Year Award from Cindy Wyrick. Photo courtesy LAET. from TBA President Jackie Dixon. More Bahner (pictured here with TBA Pres - than 100 of them and their families ident Cindy Wyrick) received the which is being named the Pro Bono attended an open house and luncheon Bruce C. Bailey Volunteer Lawyer of Firm of the Year for its strong at the Tennessee Bar Center before the Year Award. A third award was support for Legal Aid of East the ceremony. presented to Miller & Martin PLLC, Tennessee. continued on page 6

AUGUST 2013 TENNESSEE BAR JOURNAL | 5 NEWS continued from page 5

New Veterans Legal Corps Sends Lawyers, Students to Legal Aid Low-income and homeless veterans will be getting legal help from a new program that deploys lawyers and law students to legal aid groups and courts across the country, the ABA Journal reports. Equal Justice Works recently announced the new Veterans Legal Corps, which is funded with money from AmeriCorps. The three-year program will dispatch 36 lawyers and 200 law students to groups across the country. The lawyers and law students will help veterans with disability bene - fits, barriers to housing and employ - A Different Kind of Summer Camp ment, debt and family law problems. TBA Public Education volunteers had the opportunity in July to work with students from across the state, The first class of Veterans Legal Corps helping them explore different aspects of the law and become more informed about educational and career members will begin work in September paths they may want to pursue. The 20 students were participants at Law Camp, an annual event hosted by and will serve for two years. Lipscomb University’s Institute for Law, Justice & Society and co-sponsored by law firms and legal organiza - tions, including the TBA. Law Camp 2013 focused on issues related to the U.S. Civil Rights movement and the Access to Justice Videos Now evolution of the right to vote, from the 14th and 15th Amendments to the U.S. Constitution through current Supreme Court decisions. Above, TBA Youth Court Coordinator Denise Bentley leads a discussion about the Include Closed Captioning significant role of young activists in the Civil Rights movement. Photo by Elizabeth Slagle Todaro. The Tennessee Supreme Court’s Access to Justice informational videos now include closed captioning to make legal guidance accessible to even more New Guide Clarifies Legal known as “judicial emergencies” because people. The videos review topics for the Info v. Legal Advice of a lack of confirmed judges. By general public for civil cases in general Need help determining when you are delaying the administration of justice, by sessions courts, such as contract giving legal advice and when it’s just thwarting the principles of finality and disputes, debt, landlord issues and civil legal information? The Tennessee Access certainty, judicial vacancies cause real suits under $25,000. See the videos at to Justice Commission has developed harm both to the American people and www.justiceforalltn.com/videos guidelines to help. Originally intended to the free market, he writes. to provide assistance to court staff and Related, U.S. Supreme Court Chief Pro Bono Down at Big Firms attorneys assisting in self-help centers, Justice John Roberts recently told a Despite healthy the guidelines grew to become some - group of federal judges that federal increases in thing that anyone assisting self repre - budget cuts are having a different and revenues and Find the links and sented litigants could use. The more severe impact on the courts than profits in 2012, more details for Tennessee Supreme Court has now other government agencies. “The cuts The Am Law 200 these stories at tba.org/journal_links endorsed this policy, which the commis - hit us particularly hard because we are posted drops in sion’s Self-Represented Litigants Advi - made up of people. That is what the both total pro sory Committee developed. Learn more judicial branch is. It is not like we are bono hours and average hours per at www. justiceforalltn.com. the Pentagon where you can slow up a lawyer for the second year in a row. particular procurement program. … There was some good news, however. Judicial Vacancies, Cuts Have When we have sustained cuts, that After dropping 10.6 percent in 2011, Serious Impact on Justice mean[s] people have to be furloughed or The Am Law 200 ’s average percentage of Brennon Center for Justice Fellow worse and that has a more direct impact lawyers performing at least 20 hours of Andrew Cohen writes that there are on the services that we can provide.” pro bono work rose 0.4 percent in 2012, dozens of jurisdictions all across the Gavel Grab reported on the remarks. to 44 percent. nation that now operate under what are

6 | TENNESSEE BAR JOURNAL AUGUST 2013 Leaders Named for TBA Committees, Sections It takes a lot of people to run the Tennessee Bar Association’s many committees and sections. To learn more, find out how to get involved or contact the chair, go to www.tba.org/committees or www.tba.org/sections, or contact Programs Administrator Lynn Pointer or Assistant Committees and Sections Coordinator Christy Gibson at 800-899-6993. Here is the leadership for the 2013-14 bar year:

Committees TBA Attorney Well Being Committee Family Law Kay Caudle, Hendersonville Cathy Allshouse, chair, Chattanooga ABA Resource Committee Jonathan Cole, chair, Nashville Federal Practice Sections/Divisons Brent Young, chair, Johnson City Access to Justice Committee Alex Mackay, chair, Nashville Administrative Law General Solo & Small Firm Christy Allen, co-chair, Nashville Practitioners CLE Committee Tom Stovall, co-chair, Nashville Abi Salu, chair, Southaven, Miss. Ray Runyon, chair, Clarksville Appellate Practice Health Care Law Ethics and Professional Responsibility Amy Farrar, chair, Murfreesboro Angela Youngberg, chair, Jackson Brian S. Faughnan, chair, Memphis Bankruptcy Law Immigration Law Governmental Affairs Committee Margaret Fugate, chair, Johnson City Terry Olsen, chair, Chattanooga Matt Scanlan, chair, Nashville Business Law Intellectual Property Judicial Campaign Code of Conduct Dennis McClane, chair, Knoxville Hemant Gupta, chair, Memphis Committee Sam Elliott, chair, Chattanooga Construction Law Juvenile & Children’s Law Section Beth Stengel, chair, Memphis Daniel Bryant, chair, Clarksville Committee on the Judiciary Al Harvey, chair, Memphis Corporate Counsel Labor & Employment Law Bill Seale, chair, Knoxville Michael Ewing, chair, Nashville Long-Range Planning Bill Harbison, chair, Nashville Creditors Practice Section Law Office Technology & Management Bill Shick, chair, Nashville Mark Donahoe, chair, Jackson Mentoring Committee Chris Varner, chair, Chattanooga Criminal Justice Litigation Andy Roskind, chair, Knoxville Matt Curley, chair, Nashville Public Education Committee Tasha Blakney, co-chair, Knoxville Disability Law Real Estate Law Angelia Nystrom, co-chair, Knoxville Janet Mynatt, chair, Oak Ridge Brooks Smith, chair, Nashville

Committee on Protection of the Public Dispute Resolution Tax Law from Unauthorized Practice of Law Jackie Kittrell, chair, Knoxville Brett Carter, chair, Nashville Kevin Balkwill, chair, Nashville Elder Law Tort & Insurance Practice Tennessee Bar Journal Editorial Board King Self, chair, Memphis Stewart Stallings, chair, Nashville Andrée S. Blumstein, chair, Nashville Entertainment & Sports Law TBASCUS (TBA Seasoned Counselors TBA Leadership Law Casey Summar, chair, Nashville Up to Something) Marcia McMurray, chair, Chattanooga Mary Dohner Smith, co-chair, Nashville Environmental Law Darryl Gresham, co-chair, Memphis Catherine Anglin, chair, Knoxville Committee on Racial & Estate Planning & Probate Ethnic Diversity (CRED) Donald Farinato, chair, Knoxville Mary Beard, co-chair, Memphis Mattielyn Williams, co-chair, Nashville

AUGUST 2013 TENNESSEE BAR JOURNAL | 7 YOU NEED TO KNOW LICENSURE & DISCIPLINE

INACTIVE thorized bonuses to employees. His Administrative Suspensions Disability Inactive actions were determined to violate Rule Now Online The following lawyers were transferred of Professional Conduct 8.4(b). Notice of attorneys suspended for, to disability inactive status pursuant to and reinstated from, administrative Section 21 of Tennessee Supreme Court Suspended violations — including failure to Rule 9. They may not practice law while On June 14, the Supreme Court of pay the Board of Professional on disability inactive status but may Tennessee immediately and temporarily Responsibility fee, file the IOLTA petition the Tennessee Supreme Court suspended Gibson County lawyer report, comply with continuing for reinstatement upon showing by Gregory Wayne Minton from the prac - legal education requirements and clear and convincing evidence that the tice of law after finding that he failed to pay the Tennessee professional disability has been removed and they respond to the Board of Professional privilege tax — is now available are fit to resume the practice of law. Responsibility regarding a complaint of exclusively on the TBA website. Samuel Wilson Bartholomew Jr., misconduct. The suspension remains in Visit http://www.tba.org/ Nashville effect until dissolution or modification directory-listing/administrative- Cindy Lynn Burgess, Napa, Calif. by the court. suspension-lists to see adminis - Robert David Strickland, Dyersburg trative suspensions imposed Memphis lawyer Karen Wilson Tyler since 2006. DISCIPLINARY was suspended on June 19 for one year Censured retroactive to April 5, 2012, when she Knox County lawyer Vanessa Lynn was temporarily suspended for failure to suspension remains in effect until disso - Lemons received a public censure on respond to a complaint. She also was lution or modification by the court. June 21 for not appearing for court directed to pay the Board of Professional hearings or communicating with a client Responsibility’s costs in the matter. The On June 25, Humphreys County she was appointed to defend in several complaint filed against Tyler alleged that lawyer James Phillips Bradley was criminal cases. Lemons was removed she failed to competently and diligently suspended from the practice of law for 30 from the case. She also failed to respond handle the administration of an estate, days and ordered to attend an ethics to a complaint of misconduct regarding failed to respond to a request for infor - seminar. The Tennessee Supreme Court her representation. The Board of Profes - mation from the board, and made a found that Bradley signed his client’s sional Responsibility reports that statement against the integrity of a chan - name to a petition in a child-endanger - Lemons is currently serving a four-year cellor. Her actions were determined to ment matter and notarized the signature. suspension imposed on Jan. 25. The violate Rules of Professional Conduct He then filed the petition with the trial board determined that her actions 1.1, 1.3, 1.4(b), 1.16(c), 3.2, 3.4(c), court and obtained an ex parte custody violated Rules of Professional Conduct 8.1(b), 8.2(a)(1) and 8.4(d). order. The trial court dismissed the peti - 1.1, 1.3, 1.4, 1.16 and 8.1. tion after learning that Bradley had The Supreme Court of Tennessee signed the client’s name. Bradley self- Knox County lawyer Chadwick Barry immediately and temporarily suspended reported his conduct, cooperated with Tindell received a public censure from Memphis lawyer Christopher Lee the Board of Professional Responsibility the Board of Professional Responsibility Brown from the practice of law on June and entered a conditional guilty plea on June 28 after pleading guilty to facili - 21 after finding that he misappropriated admitting to the misconduct. The court tation of official misconduct. The convic - funds for his own use and that his determined that his actions violated Rules tion was based on Tindell’s involvement continued practice of law posed a threat of Professional Conduct 3.3, 3.4 and 8.4. in the Knox County Trustee giving unau - of substantial harm to the public. The continued on page 10

Compiled by Stacey Shrader Joslin from information provided by the Board of Professional Responsibility of the Tennessee Supreme Court. Licensure and disciplinary notices are included in this publication as a member service. The official record of an attorney’s status is maintained by the board. Current information about a particular attorney may be found on the board’s website at www.tbpr.org/ consumers/attorneysearch.

8 | TENNESSEE BAR JOURNAL AUGUST 2013 YOU NEED TO KNOW PEOPLE

The Knoxville law firm tanooga. Lype will serve in 1994 from the University of of Kennerly, Mont - as of counsel for the Tennessee College of Law. gomery & Finley has firm and will continue announced that handling labor and Former Tennessee state senator Mike Jonathan H. Peyton is employment law, Faulk has been appointed Third Judicial now a shareholder in commercial litigation District Circuit Court judge. A Kingsport the firm. Peyton Peyton and insurance defense. Lype native, he will preside over cases in received his law degree He graduated from the University of Hawkins, Hamblen, Hancock and Greene from Suffolk University in 2003, and is Tennessee College of Law in 1990 and counties. Faulk earned a master of public licensed to practice in Kentucky, New established his firm in 2003. administration from the University of York and Tennessee. Peyton focuses his Memphis in 1978 and a law degree from practice in the areas of real estate devel - Chattanooga attorney the school in 1979. He is a past president opment and lending, corporate and Marcy Eason with of the Hawkins County Bar Association, business law and commercial law. Miller & Martin has Juvenile Court referee and vice chair of been selected to serve a the Tennessee Human Rights Commis - Chattanooga lawyer two-year term as a dele - sion. He has operated a solo law practice Scott M. Shaw has gate to Vision 2020, a since 1996 and represented the Fourth Eason joined the law firm of nationwide initiative District of Tennessee in the state Senate Evans Harrison Hackett focused on women’s economic and social for four years. as a member. He prac - equality. Vision 2020 is a coalition of tices in the areas of liti - organizations and individuals launched in James R. Sasser , former U.S. senator Shaw gation, bankruptcy, real 2010 through the Institute for Women’s from Tennessee and ambassador to estate, banking and business. Shaw Health and Leadership at Drexel Univer - China, and his wife, Mary, have donated obtained his law degree from Georgia sity College of Medicine. Delegates are their papers to . State University in 1997 and is licensed selected based on demonstrated commit - Sasser completed his undergraduate to practice in Tennessee and Georgia. He ment to helping women or girls. studies at Vanderbilt and earned his law was a member of the 2007 TBA Leader - degree there in 1961. The donation ship Law class. The Franklin law firm of Buerger, contains photographs and other memo - Moseley & Carson recently announced rabilia from Sasser’s years in the Senate Patrick “Brock” Parks has joined the that W. Kyle Simonton has been named a — including the gavel he used while Nashville law firm of Griffith & Roberts member of the firm. Simonton focuses his chairing the Budget Committee — and where he will practice in the areas of practice in the area of health care opera - his time in China, where he forged close criminal defense, family law and the tions. He is a 2007 graduate of the relationships with national leaders. He is representation of law enforcement offi - Southern University School of Law. a senior counselor of the TBA. cers in administrative and tort actions. Brock, who is a former Metro Nashville The Tennessee Justice Center has St. Louis, Mo., Police officer, graduated from the announced that managing attorney lawyer Robert D. Nashville School of Law in 2000. He Michele Johnson will succeed Gordon Pickle was inducted previously worked with Hall Booth Bonnyman as executive director of the into the Knoxville East Smith, handling litigation involving organization at the end of the year. High School Hall of restaurants, hotel chains and law Bonnyman and Johnson co-founded the Fame on June 8 at cere - Pickle enforcement officers. center 17 years ago to advocate for monies at the World’s Fair Park in Tennessee’s vulnerable populations, Knoxville. Pickle, a 1961 graduate of the Wimberly Lawson Wright Daves & particularly those struggling to find College of Law, Jones recently announced it has joined access to health care. Bonnyman will practices with The Pickle Law Firm. He with Bob E. Lype of Bob E. Lype & continue to serve clients as a staff is a senior counselor of the TBA. Associates to establish an office in Chat - attorney. Johnson earned her law degree continued on page 10

AUGUST 2013 TENNESSEE BAR JOURNAL | 9 PEOPLE continued from page 9

The Tennessee Bar Rezabek of Jackson. Other leaders installed A new book co- Associaiton has hired a were Vice-President Cheryl Rice of authored by Nashville new CLE Coordinator, Knoxville, Treasurer Linda Knight of attorney and trial Lauren Hopper Lee, Nashville, Recording Secretary Ahsaki consultant Phillip H. who replaces Lisa Baptist of Memphis, Corresponding Secre - Miller looks at strate - McNamara. Lee holds tary Beth Bates of Jackson, West Tennessee gies and techniques for Miller Lee bachelor’s and master’s Director Lanis Karnes of Jackson, Middle delivering case-winning degrees in Social Work from TSU. Most Tennessee Director Amy Everhart of depositions. The book, Advanced Deposi - recently she worked with volunteers in Nashville and East Tennessee Director Judy tion Strategy and Practice , is available her staff role at St. Luke’s Community Cornett of Knoxville. through Trial Guides Publishing and the House working with families in West American Association for Justice. Nashville. She has also interned at the Chancellor Jerri S. Bryant of the Tennessee General Assembly. 10th Judicial District took office as pres - Knoxville lawyer Deborah Stevens ident of the Tennessee Judicial Confer - was sworn into office as Knox County Tennessee First Lady Crissy Haslam ence at the group’s annual meeting in Circuit Court Judge by Gov. Bill Haslam. has named Nashville lawyer Rachel June. She succeeds Circuit Court Judge Stevens, who has practiced law for more Lundeen as her new chief of staff. Robert L. Holloway Jr. of Columbia. In than 30 years, previously was managing Lundeen has been a member of the staff her new role, Bryant also will serve on attorney at Lewis, King, Krieg & since 2011, serving as special assistant the TBA Board of Governors. She is a Waldrop. She graduated from the and policy advisor to the first lady. Prior 1987 graduate of the University of University of Tennessee College of Law to joining the Haslam administration, Tennessee College of Law and has served in 1980. she worked at the Children’s Rights as chancellor since 1998. Alliance in Dublin, Ireland, and the Child Welfare League of America. Lundeen earned her law degree and a LICENSURE & DISCIPLINE continued from page 8 master degree in public policy from Vanderbilt University. Williamson County lawyer Thomas William T. Winchester and ordered him Holland McKinnie Jr. was suspended to pay restitution to five clients. Since Legal Aid of East Tennessee recently by the Tennessee Supreme Court for two August 2011, Winchester has been honored Chattanooga attorney Max years on June 28. McKinnie submitted a serving a two-year suspension in another Bahner of Chambliss, Bahner & conditional guilty plea that he violated case of misconduct. He also was Stophel with its Bruce C. Bailey Volun - court rules by (1) knowingly writing suspended in 2010 for failure to pay his teer Lawyer of the Year Award for his himself a check from his trust account professional privilege tax and in 2011 for work on two significant pro bono that created an overdraft, (2) failing to failing to comply with continuing legal cases. It also honored the Chattanooga account for a portion of the money that education requirements. The latest action office of Miller & Martin as its Pro he paid himself and (3) not adequately was taken in response to 10 complaints Bono Firm of the Year for its support of responding to requests from the Board of ethical misconduct alleging lack of pro bono activities. of Professional Responsibility. The court diligence, lack of communication, incom - determined that his actions violated petent representation, abandoning a law The Tennessee Lawyers’ Association for Rules of Professional Conduct 1.15, practice, and misrepresentations to Women installed new officers during its 8.1(b) and 8.4(a). clients, other lawyers and the Board of annual meeting in Nashville. Taking office Professional Responsibility. The court as president was Wendy Longmire , an Disbarred found that his actions violated Rules of attorney with Ortale, Kelley, Herbert & The Tennessee Supreme Court on May Professional Conduct 1.3, 1.4, 1.5, 1.15, Crawford in Nashville. She succeeds Kristi 21 disbarred former Memphis lawyer 1.16, 8.1 and 8.4.

Compiled by Linda Murphy and Stacey Shrader Joslin Tennessee Bar Association members may send information about job changes, awards and work-related news. Send it to PEOPLE, c/o The Journal at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, or email to [email protected]. Submissions are subject to editing. Pictures are used on a space-available basis and cannot be returned. Electronic photos must be saved as a tiff or jpeg (with no compression), minimum resolution 200 dpi, and at least 1"x1.5" or they will not be used.

10 | TENNESSEE BAR JOURNAL AUGUST 2013 Passages Nashville lawyer DAVID BRUCE LYONS died June 27 at Macon County attorney FLETCHER “KEITH” 61. Lyons grew up in Lindenhurst, N.Y., but moved to ADKINSON died June 19 at the age of 69. A 1969 grad - Tennessee and attended the University of Tennessee. He uate of the University of Virginia School of Law, Adkinson worked for the Knoxville News Sentinel in the early 1980s as represented corporations and entertainers in Beverly Hills the state capitol correspondent. He later attended the and later in Washington, D.C. From 1974 to 1979, he was Nashville School of Law at night. Lyons earned his law counsel to the U.S. Senate Permanent Subcommittee on degree in 1994 and began practicing in the areas of juvenile Investigations where he managed probes into organized and family law, civil rights, general civil litigation, and tort crime, labor racketeering and government corruption. and personal injury cases. Lyons was a strong supporter and Adkinson was national director of Democrats for board member of 202 Friendship House, an alcohol recovery Reagan/Bush in 1980 and after the election, served on the center. In lieu of flowers, the family asks that donations be Department of Justice Transition Team. Later, in private made to 202 Friendship House, 202 23rd Ave. N., Nashville, practice, he took on a case to prove Jett Williams was the TN 37203. daughter of Hank Williams. He married her in 1986 and the couple lived for many years in Lafayette. He died while Chattanooga lawyer and former TBA undergoing heart surgery at Vanderbilt Medical Center. President CHARLES J. GEARHISER died June 17 at the age of 74. A 1961 graduate of Retired Lebanon Judge RODNEY VICTOR AHLES died the University of Tennessee College of Law, from a stroke on June 30. He was 82. Ahles was appointed Gearhiser was an original founder of the city judge for Lebanon in 1970, serving for almost four firm of Gearhiser, Peters, Elliott & Cannon, decades on the bench. He received a bachelor of law from Gearhiser where he practiced until his death. Early in Cumberland University and his law degree from Samford his career, Gearhiser was law clerk to U.S. District Judge University. Ahles entered private practice in 1967 and, as Frank W. Wilson and served in that position during the part of his practice, drafted legislation for the State of historic Jimmy Hoffa trial in 1964. He also served as an Tennessee Legislative Council during five sessions of the assistant U.S. attorney in the Eastern District of Tennessee, General Assembly. He retired from the bench in 2005. In and then as a part-time U.S. magistrate. While in private lieu of flowers, memorial contributions may be sent to First practice, Gearhiser made a name for himself as a prolific liti - Presbyterian Church, 304 W Main St., Lebanon, TN 37087. gator, trying more than 100 cases before Tennessee juries. His areas of expertise included federal criminal defense, Chattanooga attorney RALPH RUSSELL ARMSTRONG professional liability defense, and product liability, personal died June 8 at the age of 83. Armstrong earned his law injury, commercial and business cases. Gearhiser also degree from the University of Tennessee. He served in the worked to improve the profession, serving as president of U.S. Naval Reserve and Army ROTC, and was a member of the Chattanooga Bar Association, chair of the Chattanooga the Hamilton County Bar Association. In lieu of flowers, the Bar Foundation, member of the Judicial Performance family requests donations be made to St. Jude Children’s Program Committee and charter member of the Tennessee Research Hospital, P.O. Box 2151, 501 St. Jude Place, chapter of the American Board of Trial Advocates. He served Memphis, TN 38101. as president of the TBA from 2001-2002 after serving on the association’s board of governors from 1999 to 2001 and in Memphis lawyer LUNDY WEBB DANIEL died June 23 1992 and 1994. In lieu of flowers, donations may be made at the age of 76 from metastatic melanoma. A native of to the Alzheimer’s Association in honor of Gearhiser’s late Mississippi, Lundy moved to Memphis in 1964 and earned wife, Joy. Donations may be sent to 7625 Hamilton Park Dr., his law degree from the School of Suite 22, Chattanooga, TN 37421. Law in 1968. As principal at the Daniel Law Firm in down - town Memphis, Daniel represented clients in the areas of Memphis lawyer G. DONALD SIEMER died June 13 at personal injury, workers’ compensation, medical malprac - the age of 81. Originally from Philadelphia, Siemer served tice, family law, wrongful death and criminal misde - the Shelby County community as an assistant district meanors. He also was active in the Downtown Memphis attorney and public defender. He also was instrumental in Kiwanis Club. The family requests that memorial donations establishing Shelby County’s Environmental Court and Drug be sent to Senatobia First Baptist Church, 317 S. Ward, Court. In lieu of flowers, the family requests that donations Senatobia, MS 38668. be sent to Cherokee Baptist Church, 5340 Quince at Estate, Memphis, TN 38119.

AUGUST 2013 TENNESSEE BAR JOURNAL | 11 COVER STORY n a m y a H h a r a S y b o t The Cradle o h P

. n a m y a H s n i l l o C Will Rock By Lacy A. Daniel

The 2012 Tennessee Supreme Court decision of Hodge v. Craig is a Intentional case of potential importance primarily to family law practitioners, and Misrepresentation more generally to other civil law practitioners. 1 Hodge v. Craig paves the way for a putative father to seek damages when a mother has of Paternity misrepresented that he is her child’s father. Of significance to tort liti - gators more generally, is the court’s guidance in suggesting future use of the term “intentional misrepresentation” rather than “fraud” or “fraudulent misrepresentation,” to avoid confusion because of the use of “different names for the same tort.” 2

The Facts and Procedural History of Hodge v. Craig In Hodge v. Craig , the Tennessee Supreme Court granted ex-husband, Chad Craig’s appeal, recognizing a common law claim for intentional misrepresentation of paternity by his ex-wife, Tina Marie Hodge. 3

12 | TENNESSEE BAR JOURNAL AUGUST 2013 Furthermore, the Supreme Court deter - July 2007, the trial court entered an medical insurance premiums is an mined that Mr. Craig’s damages award for order granting Ms. Hodge’s request for impermissible retroactive modification intentional misrepresentation was not a custody of Kyle and terminating her obli - of a child support order.” 17 prohibited retroactive modification of gation to pay child support to Mr. Craig. child support. 4 In February 2008, Mr. Craig sued Ms. Domestic Torts “The primary holding of Hodge v. Hodge based on intentional and/or negli - At first glance, this case may not seem Craig is that a putative father may main - gent misrepresentation, alleging that that significant to a family law practi - tain an action for intentional misrepre - “Ms. Hodge told him that she was sure tioner. Domestic torts are not uncommon sentation based upon a mother’s false that the baby [Kyle] was his and that ‘the in Tennessee, as spousal tort immunity statements as to the paternity of a child. baby could be no one else’s’ when she was abolished in 1983. 18 Tennessee A large portion of the opinion is devoted knew or should have known that he was courts have recognized various domestic to a discussion of public policy not the child’s biological father.” 10 tort actions relating to misrepresentation, surrounding that question.” 5 Ultimately The trial court found that “Ms. Hodge including (1) a suit by an ex-husband the Hodge v. Craig court “determined ‘purposely defrauded [Mr. Craig] into against his ex-wife for fraud in misrepre - that public policy does not prevent the believing Kyle was his child, knowing senting the value of the marital home, 19 former spouse of a child’s mother from she had sexual relations with Joey Hay at (2) an ex-wife suing ex-husband for pursuing a common-law damage claim the time and a count of one’s fingers fraud, deceit, and coercion in executing based on her misrepresentations would have revealed Joey Hay could be their Marital Dissolution Agreement, 20 (3) regarding the identity of the child’s the father.’” 11 For damages suffered as a ex-wife’s suit against ex-husband and his biological father.” 6 result of Ms. Hodge’s fraud, intentional employer for fraud and conspiracy in This case involved Chad Craig and misrepresentation, and negligent misrep - concealing ex-husband’s earnings, 21 (4) Tina Marie Hodge, a couple who became resentation, the trial court awarded Mr. negligent transmission of a venereal involved in an intimate relationship Craig “$23,030.24, ‘representing the disease, 22 and (5) the right to bring a when they were both 16 years old and total child support paid,’ … $2,214.20, claim for misrepresentation concerning juniors at Mt. Pleasant High School. 7 ‘representing medical expenses and contraception. 23 These cases involve They were married on December 20, insurance premiums paid,’ … $1,181.75 disputes between adults and do not 1991, after Ms. Hodge became pregnant ‘for TRH Health Plans,’ … $100,000 ‘for implicate a child’s interests. and after she assured Mr. Craig that the the emotional distress suffered’ and Perhaps what is different in the inten - child could only be his child. Kyle Chan - $8,451.71 in attorney’s fees.” 12 tional misrepresentation of paternity tort dler Craig was born on June 11, 1992. On appeal, the Court of Appeals that the Tennessee Supreme Court Mr. Craig and Ms. Hodge divorced in upheld the trial court’s finding of inten - recognized in Hodge v. Craig , is that the February 2001. Initially, Mr. Craig and tional misrepresentation, but “reversed child’s well-being must be balanced Ms. Hodge shared joint custody of Kyle, the damage award for child support, against the interests of the parties, i.e., with Ms. Hodge designated as the medical expenses, and insurance the State of Tennessee and the parents. primary residential parent, and Mr. premiums because it amounted to Craig paying child support to Ms. retroactive modification of the earlier Policy Issues Hodge. In 2005, Mr. Craig assumed the child support order.” 13 The appellate “Paternity fraud is not a modern role of primary residential parent for court also reversed the $100,000 concept — it is probably as old as pater - Kyle, and Ms. Hodge paid child support emotional distress award, concluding nity itself. In the days of the common to Mr. Craig. that noneconomic damages were not law, British lawmakers addressed the In February 2007, Mr. Craig appropriate in a misrepresentation issue despite the lack of modern tech - confirmed (through a DNA test) his claim. 14 Since it had reversed all nology and genetic testing. One of the recently raised suspicions that he was compensatory damages, the court oldest British laws [dating back to not 15-year-old Kyle’s biological father. vacated the award of attorney’s fees. 1576] concerning paternity was titled, Mr. Craig told Ms. Hodge about the test Mr. Craig appealed to the Tennessee ‘Acte for the setting of the Poore on result. After initially telling Mr. Craig that Supreme Court, raising two issues. 15 Worke, and for the avoyding of Ydle - he was “crazy,” Ms. Hodge told Kyle that First, “whether Ms. Hodge’s representa - ness.’” 24 Simply stated, “[p]aternity Mr. Craig was not his biological father. 8 tions regarding the paternity of her son fraud occurs when a mother makes a Mr. Craig expressed his desire to can support a claim of common-law representation to a man that the child is maintain their relationship as before, but fraud, intentional misrepresentation, or genetically his own even though she is “Kyle told him that ‘it’s not the same negligent misrepresentation.” 16 Second, aware that he is not, or may not be, the now’ and that he wanted to live with Ms. “whether a damage award derived from father of the child.” 25 Hodge.” 9 Kyle and Mr. Craig had little Mr. Craig’s post-divorce payments of Paternity laws seek to balance the contact after Kyle learned the news. In child support, medical expenses, and Continued on page 14

AUGUST 2013 TENNESSEE BAR JOURNAL | 13 Paternity continued from page 13 Two provisions in the 1997 Act per week in child support. 32 Ex-husband and in a 1998 amendment to the Act paid the child support for a brief period, rights of the child with those of the reflect the General Assembly’s aware - but in 1990, the District Attorney putative father, the biological father, the ness of the existence of actions to General filed a contempt petition on mother, and the state. 26 In a 2007 Note, rebut or disestablish paternity and behalf of the mother alleging ex- Stephen Sherman argues that “courts the possibility that a person found husband owed $10,500. 33 Ex-husband must reach a middle ground between not to be a child’s biological father sought relief from the 1983 decree the harsh presumption of paternity and could pursue a claim for damages pursuant to Rule 60.02 of the Tennessee the lax modern rules that allow suits to against the child’s biological parents. Rules of Civil Procedure alleging that the be pursued at almost any time after the Tenn. Code Ann. § 36–2–304(b)(3), child was not his child and requesting a birth of the child.” 27 Sherman advocates enacted in 1998, states that “[t]he blood test, pursuant to Tenn. Code Ann. an 18-month statute of limitations in standard of proof in an action to section 24-7-112. 34 Ex-husband claimed which a putative father could file suit rebut paternity shall be by prepon - that he learned after the divorce from without negatively affecting the child’s derance of the evidence.” Similarly, “outside sources” that the child was not “social and mental well-being.” 28 Tenn. Code Ann. § 36–2–309(b) states, his child. 35 The Court of Appeals upheld in part, that “[n]othing in this subsec - the trial court’s denial of ex-husband’s Tennessee Paternity Issues tion (b) shall preclude the issuance of Rule 60.02 motion and blood test Before ‘Hodge v. Craig’ a judgment against the mother or request, finding that eight years was too In a 2005 opinion, the Tennessee actual biological father of the child or late to raise the issue. 36 Supreme Court briefly summarized the children in favor of the person subse - In Granderson v. Hicks , an unreported recent paternity quently found not to be the father of decision, the Court of Appeals found laws enacted in response to evolving the child or children.” 30 that the trial court erred by dismissing public policy. the putative father’s allegation of fraud by In 1997, the Tennessee General the child’s mother in obtaining a volun - Assembly completely overhauled the “Hodge v. Craig is signifi - tary acknowledgement of paternity from statutes concerning paternity and cant for recognizing the him. 37 The appellate court noted that: legitimation. See 1997 Tenn. Pub. Tenn. Code Ann. § 24-7-118(e)(2) Acts ch. 477. The primary purpose of right of a putative father to requires the trial court to conduct a this change was to streamline and to hearing in cases in which the putative simplify the formerly separate causes bring an action for inten - father alleges fraud in the procure - of action for paternity and legitima - tional misrepresentation ment of the voluntary acknowledg - tion by combining them into a single ment of paternity. After the hearing, if parentage action. See Tenn. Code Ann. based upon a mother’s the trial court finds “a substantial §§ 36–2–101 to –115 (1996) (pater - likelihood” of fraud “in the execution nity) and §§ 36–2–201 to –210 false statements as to the of the acknowledgment of paternity,” (1996) (legitimation), repealed by paternity of a child.” it must order parentage tests, even if 1997 Tenn. Pub. Acts ch. 477 (codi - the relief is requested after the five- fied at Tenn. Code Ann. §§ 36–2–301 year statute of limitations has lapsed, to –322 (2001)); Tape H–C & FA # 1 provided the trial court also finds that (Tennessee House of Representatives Steioff v. Steioff in 1992, Granderson v. this relief “will not affect the interest Children and Family Affairs Hicks in 1998, State ex rel. Taylor v. of the child, the state, or any Title IV- Committee March 26, 1997) (“This Wilson in 2005, Ex rel. Kimbrough v. D agency.” 38 bill is an effort to try to revise our Hales in 2012, and Ex rel. Russell v. W. in statutes and bring us into the 20th 2003 all serve to illustrate how the In State ex rel. Taylor v. Wilson , century and develop one system for necessary balancing of interests in pater - another unreported case, the appellate determining and establishing the nity cases has played out in Tennessee court reversed the juvenile court’s parentage of children born out of courts prior to Hodge v. Craig . dismissal of the father’s Tennessee Rule wedlock.”) (statement of Rep. Kim In Steioff v. Steioff , the appellate court of Civil Procedure 60.02 request for McMillan). The 1997 legislation was ruled that eight years was not a reason - relief from his voluntary legitimation also designed to correct a particular able time within which to raise the issue (based on mutual mistake) of one of two constitutional infirmity of the prior of paternity. 31 The parties divorced in children and the related custody, statutes. 29 1983, and the court awarded custody of parentage and support orders. 39 After the parties’ minor child to the mother entry of the orders, the father learned As the Hodge v. Craig court explained, and ordered the ex-husband to pay $25 that he was not the biological father of

14 | TENNESSEE BAR JOURNAL AUGUST 2013 one of the children he had originally acknowledged as his child. 40 In granting prospective relief to the father, the court Announcement analyzed the “burdens that granting relief or failing to grant relief will place on all who have an interest in the from the proceeding,” i.e., the father, mother, child, and State. 41 Tennessee, like other states, as noted Membership by the Hodge v. Craig court, 42 has set aside paternity adjudications where the Maven mother misrepresented the identity of the child’s biological father. 43 For example, on July 25, 2012, in Ex rel. Kimbrough v. Hales , the Tennessee Court Oyez! Oyez! Oyez! of Appeals found, in an unreported case, Dear great members of the Tennessee Bar that the paternity provision in the Association. It is with tremendous excitement divorce decree, declaring Mr. Hales not and eagerness that I announce to you … to be the father of the child his ex-wife, Ms. Kimbrough, was carrying at the time A GAME CHANGER! A MONEY SAVER! A PROSPECT WITH SUCH of the divorce, void as against public POTENTIAL I’M DONNING THIS HIDEIOUS HAT TO GET YOUR ATTENTION! policy. 44 Mr. Hales and Ms. Kimbrough were married Oct. 25, 1990, and Mr. Hales was granted a divorce based on Mark my words: the savings, service and speed you will receive from your inappropriate marital conduct on May newest TBA member benefit will knock your knickers off! 28, 1991. 45 In 2010, relying on a 2009 DNA Test report indicating a 99.999998 percent probability that Mr. Hale was The TBA has a new cohort in UPS! And UPS is dedicated to providing you the biological father of the child, the with personal service and savings that cannot be matched, beaten, State moved to establish the ex- husband’s paternity and for Rule 60.02 shaken or stirred! You also have a personal shipping guru who wants to relief. 46 The trial court found the 1991 help get your firm up and running! Kurt Eady is our man, the go-to guy, paternity determination res judicata and our numero uno! Contact him at [email protected]. denied the Rule 60.02 motion. 47 The appellate court found the paternity provisions of the divorce decree void as Visit www.savewithups.com/TBA to examine the details and sign up today! against the public policy that a child not be illegitimated, or denied support by a natural or adoptive parent, by written Do not be lackadaisical, my friends. You can save up to 36 percent on agreement or court order. 48 Conversely, in an earlier 2003 case, Ex UPS Next Day Air and up to 18 percent on UPS Ground Services . rel. Russell v. W . the appellate court found TBA members have the potential to save hundreds and possibly thou - that the paternity dispute was raised too sands of dollars a year with a partnership this good. late. 49 The father was aware early on that he might not be the father, and thus, the court concluded that he waived the issue Long live rockin’ TBA benefits! and the matter was res judicata. Recognizing the Tort of Intentional Misrepresentation of Paternity To ask the TBA Membership Maven a question please In Hodge v. Craig , the court considered email [email protected] or her alter-ego, Kelly Stosik, the these competing family, individual, and TENNESSEE BAR Tennessee Bar Association’s membership director. ASSOCIATION Continued on page 16

AUGUST 2013 TENNESSEE BAR JOURNAL | 15 Paternity continued from page 15 it to be true or that the defendant could be the child’s father. 65 Her state - made the representation recklessly ment was false when made and Ms. state interests, noting that the “legisla - without knowing whether it was true Hodge knew she had had sex with tive process provides the most appro - or false; (5) that the plaintiff did not another man besides Mr. Craig. 66 Mr. priate forum within which to balance know that the representation was Craig justifiably relied on her represen - these competing interests,” 50 but finding false when made and was justified in tation and married her believing that she that the Tennessee “General Assembly relying on the truth of the representa - was carrying his child. 67 Mr. Craig has not directly addressed the issues or tion; and (6) that the plaintiff suffered monetary damages, including interests implicated in this case.” 51 sustained damages as a result of the his payment of child support, medical The court acknowledged its authority representation. 62 expenses, and insurance premiums. 68 to act within the public policy parame - The Tennessee Supreme Court deter - ters of the State of Tennessee to continue The measure of damages for a non- mined that Mr. Craig’s damage award developing the common law of domestic business intentional misrepresentation was “not a retroactive modification of a torts. 52 The court noted that “misrepre - claim is: child support obligation” nor did it make sentations to a prospective spouse that The recipient of [an intentional] changes in his child support obligation he is an unborn child’s biological father in contravention of Tenn. Code Ann. ‘[go] to the essence of the marital rela - section 36-5-101(f)(1). 69 The award did tionship.’” 53 Finding no public policy not reduce or extinguish any child favoring or opposing the claim or support owed by Mr. Craig because he remedy sought, the court determined was under no obligation to pay support that a “former spouse of a child’s when the judgment was entered and he mother” 54 may pursue an “intentional did not owe any child support 55 70 misrepresentation” claim, but not a s arrearage. The court found that the e

56 n negligent misrepresentation claim, o “trial court did not err by ascertaining J

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tional misrepresentation tort claim in a behalf following the parties’ divorce.” m y

Hodge v. Craig rested on Tennessee law, a H

but the court found similar situations in s What Questions Does ‘Hodge n i l 58 l other states. Five other states recognize o v. Craig’ Settle? C similar claims for fraud or intentional Hodge v. Craig is limited to the specific misrepresentation by the putative father misrepresentation is entitled to factual circumstances of the case, “a against the mother based on her misrep - recover as damages in an action of lawsuit filed by the former spouse of a resentations regarding the child’s biolog - deceit against the maker the pecu - child’s biological mother seeking ical father. 59 Additionally, New Jersey niary loss to him of which the misrep - damages for intentional misrepresenta - recognized a claim by the putative father resentation is a legal cause, including tion of the child’s parentage.” 72 against the biological father. 60 The court (a) the difference between the value of Hodge v. Craig does not change the noted several examples of states that what he has received in [the] transac - statutory prohibition against retroactive found a basis to set aside a paternity tion and its purchase price or other application of child support modifica - adjudication where the mother misrep - value given for it; and (b) pecuniary tions. The Court of Appeals waited to resented the identity of the child’s loss suffered otherwise as a conse - hear the Supreme Court’s decision in biological father. 61 quence of the recipient’s reliance upon Hodge before reaching a decision in The court outlined the elements of the misrepresentation. 63 Christopher A. D. as discussed below. intentional misrepresentation as follows: We conclude that the holdings in [A] plaintiff must prove: (1) that The Hodge v. Craig court found that Hodge do not affect the application of the defendant made a representation the record supported the trial and appel - the statute prohibiting retroactive of a present or past fact; (2) that the late courts’ conclusions that Mr. Craig modification of child support to the representation was false when it was presented sufficient evidence to prove case before us. Hodge involved a made; (3) that the representation his claim of intentional misrepresenta - claim for misrepresentation and a involved a material fact; (4) that the tion against Ms. Hodge. 64 Ms. Hodge, request for damages caused by that defendant either knew that the repre - recklessly without knowing whether it misrepresentation. That is not the sentation was false or did not believe was true, told Mr. Craig that no one else situation herein. The action in this

16 | TENNESSEE BAR JOURNAL AUGUST 2013 appeal was initiated by a petition to is told by an unmarried woman with dispute, that at all times during this modify support that specifically asked whom he recently had sexual relations proceeding, Mr. Craig did not owe back the court “to modify child support that he is the father of her unborn child, child support to Ms. Hodge. Nothing in retroactively.” 73 yet the man is so skeptical, that he this opinion should be construed as … refuses to renew a relationship with the preventing others who owe back child The case before us does not expectant mother and refuses to provide support from filing an intentional involve a claim of misrepresentation pre-natal support.” 77 “The biological misrepresentation claim similar to the of parentage. It is undisputed that father of the child at issue appeals the one filed by Mr. Craig in this case. If a Father is the father. Instead, it alleges termination of his parental rights and party owing back child support prevails, a misrepresentation of income by the dismissal of Father and Step– the trial court, rather than forgiving the Father in a hearing regarding the Mother’s petition for custody and past due child support, will be required appropriate amount of child counter-petition for stepparent adop - to offset the judgment by the amount of support. 74 tion.” 78 Madilene G.R. is not a case the past due child support owed at the … alleging paternity fraud, but its examina - time suit was filed. 83 A child support order is not tion of Hodge v. Craig indicates that the subject to challenge based on equi - Hodge v. Craig decision may also provide Conclusion table defenses such as fraud, because a useful reference point regarding the Hodge v. Craig is significant for recog - to do so would “defeat the very multiple interests and the complex legal nizing the right of a putative father to purpose of the amendment.” and moral issues in a paternity dispute. bring an action for intentional misrepre - Rutledge, 802 S.W.2d at 607. Conse - sentation based upon a mother’s false quently, we must hold that the Juve - What Questions Does ‘Hodge statements as to the paternity of a child. nile Court in the instant case lacked v. Craig’ Leave Open? Ultimately, the cases that follow will the authority to modify Father’s The Hodge v. Craig court noted that it develop a clearer outline of the bound - support obligation for any time prior was not required to address whether the aries of this tort. Additionally, the court to Mother’s filing of her petition on measure of damages in this case was clarified general future use of the term Oct. 22, 2008. 75 correct. 79 Mr. Craig did not take issue “intentional misrepresentation” to with the Court of Appeals vacating his describe this sort of tort (beyond the The implication of the court’s ruling $100,000 award for intentional inflic - context of paternity), rather than “fraud” in Christopher A. D. is that in this type tion of emotional distress. 80 Further - or “fraudulent misrepresentation.” of situation, where there is fraudulent more, Ms. Hodge did not object to misrepresentation, an action for using child support, medical expenses, damages should be brought, not an and insurance premiums as the measure LACY A. DANIEL is action for retroaction modification of of damages. 81 employed as a law clerk child support. The court very specifically limited its and court officer in the In January 2013, the Court of Appeals holding: Williamson County courts in Madilene G.R. considered Hodge v. Our decision in this case is limited of the 21st Judicial District. She served as an editor of Craig for the “complex legal and moral to the factual circumstances before us the Natural Resources issues that arise out of disputed paternity — a lawsuit filed by the former Journal and earned a certificate in natural actions where, as in [Madilene G.R.], spouse of a child’s biological mother resources law, along with her law degree from paternity was uncertain during two very seeking damages for intentional the University of New Mexico School of Law in relevant time frames that are at issue, and misrepresentation of the child’s 2011. She returned to her home state of [] recognize[d], as the Supreme Court parentage. This case does not require Tennessee to begin her law practice. Daniel developed this article with support and advice did, that such cases implicate the inter - us to address other circumstances, from Judge James G. Martin III, of the 21st Judi - ests of family, a putative biological father, including similar disputes between cial District. Judge Martin presented an earlier the child, the prospective adoptive persons who were never married or draft of the article (titled “Paternity Fraud”) on parents and the public policy of the State persons who are separated but not April 4, 2013, at the Domestic Law Forum of the of Tennessee. This is because ‘[c]ases divorced. Determining the appropri - Tennessee Association for Justice. based on a mother’s [representations or] ateness of actions for intentional Notes misrepresentations regarding the identity misrepresentation of parentage in of a child’s biological father present diffi - these and other circumstances can be 1. Hodge v. Craig , 382 S.W.3d 325 (2012). cult and intractable problems that are made only in the appropriate case. 82 2. Id . at 342-43. ‘much more complicated than a bad girl, 3. Id . at 342-44. good guy scenario.’” 76 Our holding is limited to the circum - 4. Id . at 346-48. In Madilene G.R. “an unmarried man stances in the record showing, without Continued on page 18

AUGUST 2013 TENNESSEE BAR JOURNAL | 17 Paternity continued from page 17

5. In re Christopher A. D., M2010-01385- 25. Id . at 274 (citation omitted). 892 (Tenn. Ct. App. 2003). COA-R3-JV, 2012 WL 5873571, at *5 (Tenn. Ct. 26. “You Ain’t My Baby Daddy,” supra note 50. Hodge v. Craig , 382 S.W.3d at 339. App. Nov. 20, 2012). 24, at 274; Hodge v. Craig , 382 S.W.3d at 338-39. 51. Id . at 340. 6. Hodge v. Craig , 382 S.W.3d at 342. 27. “You Ain’t My Baby Daddy,” supra note 52. Id . at 341. 7. Id . at 330. 24, at 274. 53. Id . Miller v. Miller , 1998 OK 24, ¶ 44, 956 8. Id . 28. Id . P.2d 887, 904 (recognizing a claim for fraudulent 9. Id . 29. In re C.K.G. , 173 S.W.3d 714, 724 (Tenn. inducement to marry). 10. Id . at 332 (alteration in original). 2005) (citation omitted) (The Tennessee Court of 54. Id . 11. Id . (alteration in original). Appeals had ruled unconstitutional that portion 55. Id . at 342 (suggesting use of the term 12. Id . of Tenn. Code Ann. § 36–2–202(c) which “intentional misrepresentation” to avoid confu - 13. Id . at 333 (citing Hodge v. Craig , No. required the mother’s consent for a putative sion in this case and henceforth, rather than M2009-00930-COA-R3-CV, 2010 WL 4024990 father to legitimate a child. In re Hood , 930 “fraud” or “fraudulent misrepresentation”). (Tenn. Ct. App. Oct. 13, 2010)). S.W.2d 575, 580 (Tenn. Ct. App. 1996).). 56. Id . at 345-46 (finding no convincing basis 14. Id . at 333. 30. Hodge v. Craig , 382 S.W.3d at 340-41 to expand the scope of negligent misrepresenta - 15. Id . at 336. (alterations in original). tion beyond the realm of business transactions). 16. Id . 31. Steioff v. Steioff , 833 S.W.2d 94, 97 (Tenn. 57. Id . at 341. 17. Id . Ct. App. 1992). 58. Id . 18. Davis v. Davis , 657 S.W.2d 753, 759 32. Id . at 95. 59. Id . (Illinois, Kentucky, Minnesota, Okla - (Tenn. 1983). 33. Id . at 95-96. homa, and Utah). 19. Moore v. Moore , 01-A-01-9708-CV00444, 34. Id . at 96. 60. Id . 1998 WL 848091 (Tenn. Ct. App. Dec. 8, 1998) 35. Id . at 97. 61. Id . at 341-42 (Mississippi, Pennsylvania (reversing the circuit court’s decision that ex- 36. Id . and Virginia). husband’s chancery action was frivolous, and 37. Granderson v. Hicks , 02A01-9801-JV- 62. Id . at 343 (citations omitted). clarifying that ex-husband’s chancery court case 00007, 1998 WL 886559, at *1 (Tenn. Ct. App. 63. Id . (alterations in original) (citation was a fraud action seeking damages, not an Dec. 17, 1998). omitted). action seeking relief from the circuit court 38. Id . at *4 (citation omitted). 64. Id . divorce decree judgment). 39. State ex rel. Taylor v. Wilson , W2004- 65. Id . 20. Black v. Black , 166 S.W.3d 699 (Tenn. 00275-COA-R3-JV, 2005 WL 517548, at *1 66. Id. at 343-44. 2005) (affirming the appellate court and (Tenn. Ct. App. Mar. 3, 2005). 67. Id . at 344. concluding that ex-wife failed to allege sufficient 40. Id . 68. Id . facts to either set aside the final divorce decree 41. Id . at *4 (citation omitted). 69. Id . at 348. under Rule 60.02 (as an extrinsic fraud claim) or 42. See infra note 61. 70. Id . as a tort action for fraud or coercion). 43. See State ex rel. Kimbrough v. Hales , 71. Id . 21. Brown v. Birman Managed Care Inc ., 42 E2011-02539-COA-R3-CV, 2012 WL 3025712 72. Hodge v. Craig , 382 S.W.3d at 344 n.31. S.W.3d 62 (Tenn. 2001) (affirming the appellate (Tenn. Ct. App. July 25, 2012); Coppage v. Green , 73. In re Christopher A. D. , M2010-01385- court decision that ex-husband and his employer W2006-00767-COA-R3-JV, 2007 WL 845909 COA-R3-JV, 2012 WL 5873571, at *6 (Tenn. Ct. are not entitled to summary judgment on ex- (Tenn. Ct. App. Mar. 21, 2007); State ex rel. App. Nov. 20, 2012) wife’s fraud and conspiracy to defraud claims). Taylor v. Wilson , W2004-00275-COA-R3-JV, 74. Id . at *7. 22. Hamblen v. Davidson , 50 S.W.3d 433 2005 WL 517548 (Tenn. Ct. App. Mar. 3, 2005) 75. Id . (Tenn. Ct. App. 2000) (holding that genuine (providing Tenn. R. Civ. P. 60.02 relief from a 76. In re Madilene G.R. , M2012-01178-COA- issues of material fact exist and that the trial prior paternity determination). But see In re R3-PT, 2013 WL 139564, at *6 (Tenn. Ct. App. court erred in granting summary judgment). Kempton L.D. , W2009-00906-COA-R3-JV, 2010 Jan. 10, 2013) (alterations in original) (citation 23. Henson v. Sorrell , 02A01-9711-CV-00291, WL 1838058 (Tenn. Ct. App. May 7, 2010) omitted). 1999 WL 5630 (Tenn. Ct. App. Jan. 8, 1999) (denying Tenn. R. Civ. P. 60.02 relief for a 77. Id . at *5. (affirming the trial court judgment for the defen - previous paternity adjudication). 78. Id . at *1. dant, while recognizing the common law right to 44. State ex rel. Kimbrough v. Hales , 2012 WL 79. Hodge v. Craig , 382 S.W.3d at 344 n.30. bring a fraudulent misrepresentation claim). 3025712, at *1. 80. Id . 24. Note, “You Ain’t My Baby Daddy: The 45. Id . 81. Id . Problem of Paternity Fraud and Paternity Laws,” 46. Id . at *1-2. 82. Id. at 344 n.31. 5 Ave Maria L. Rev. 273, 275 (2007). (citing 18 47. Id . at *1, *3. 83. Id . at 348 n.40. Eliz., c. 3 (1576) (Eng.)) [hereinafter You Ain’t 48. Id . at *4-8. My Baby Daddy]. 49. State ex rel. Russell v. W. , 115 S.W.3d 886,

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When the United States Attorney Sued to Remove Half the Tennessee Supreme Court The Quo Warranto Cases of 1870 Tennessee Supreme Court Justice Alfred Osborne Pope Nicholson. All photos courtesy Library of Congress. By Sam D. Elliott

Hanging in the courtroom of the Supreme Court building in Nashville is the portrait of a former chief justice of the Tennessee Supreme Court, Alfred Osborne Pope Nicholson. The portrait depicts Nicholson, a distin - guished lawyer, legislator, newspaper editor and jurist, with an almost ridiculously long beard. In 1870, the now largely forgotten Nicholson was at the center of a controversy that resulted in the United States Attorney for the Eastern District of Tennessee filing suit in the District Court for his removal, as well as two to render due process to the states. As a other justices of the Supreme Court and justice of the United States Supreme the state attorney general. Court noted: “Fairly construed these On July 28, 1868, Secretary of State amendments may be said to rise to the William Seward issued a proclamation dignity of a new Magna Charta.” 2 The announcing that the 14th Amendment sweeping scope of the 14th Amendment to the United States Constitution had is well known to lawyers in our time. been ratified by the requisite number of But few in our time are aware of Section states, and was therefore in effect. 1 3 of the 14th Amendment, or the Passed in the aftermath of the Civil War, controversy it stirred in Tennessee in the the 14th Amendment, like the 13th and early 1870s. the 15th Amendments, was a departure Section 3 states: from previous amendments in that it No person shall be a Senator or limited, for the first time, the power of Representative in Congress, or elector the states, and extended the obligation of President and Vice President, or

20 | TENNESSEE BAR JOURNAL AUGUST 2013 hold any office, civil or military, under political disability of the 14th Amend - the United States, or under any State, ment became an issue. Although a stout who, having previously taken an oath, Unionist who was actually imprisoned as a member of Congress, or as an by the Confederate government for six officer of the United States, or as a months, Senter was a member of the member of any State legislature, or as legislature when Tennessee became a an executive or judicial officer of any Confederate state, and so technically State, to support the Constitution of held office under the Confederacy. the United States, shall have engaged Anticipating Brownlow’s resignation, in in insurrection or rebellion against the late 1868 a rival senator raised the issue same, or given aid or comfort to the of Senter’s potential disqualification. enemies thereof. But Congress may, by Fortunately for Senter’s political a vote of two-thirds of each House, prospects, a bill was soon thereafter remove such disability. passed by Congress and signed by Pres - ident removing Unlike the remedial aspects of the Senter’s disability. 5 other portions of the amendment, Section 3 was meant to punish former “Chief Justice Nicholson was at the center of a Confederates, especially those who were in the rebel leadership during the Civil controversy that resulted in the United States Attorney War. Section 3 also had the fairly obvious purpose of undermining polit - for the Eastern District of Tennessee filing suit in the ical opposition to the Republican Party in the South. 3 District Court for his removal, as well as two other Tennessee’s quick and somewhat justices of the Supreme Court and the dubious ratification of the 14th Amendment in July 1866 resulted in state attorney general.” the state’s early readmission to the Union, thereby avoiding the military rule imposed on the rest of the former Brownlow deemed Senter a trusty Confederacy by Congress in 1867. One Radical, although Senter proved to be of the two contending parties in the not as hard a Radical as the Parson, as state at that time was the “Radicals,” the he lightened some of Brownlow’s harsher hard-core Unionist supporters of Gov. anti-ex-Confederate measures. Under William G. “Parson” Brownlow, named the Constitution of 1834, however, as such because of their adherence to Senter’s term would expire in October the so-called Radical Republicans in 1869, and he had significant opposition Congress who were intent on a hard from another trusty Radical, General Reconstruction policy. The other party William B. Stokes. The enfranchisement was the “Conservatives,” which of the ex-Confederates became the included Unionists of a mellower bent, central issue of the campaign. Senter and eventually most, if not effectively used his power over county election all, of the former Confederates. The registrars to allow the former rebels to former Confederates, disenfranchised vote, and they came out, legally or ille - by state law, grated at the inability to gally, in sufficient force to elect Senter vote while the franchise was extended for a full term. Furthermore, the new to the black former slaves. 4 Conservative-controlled legislature A breakthrough occurred on Feb. removed the remaining franchise restric - 25, 1869, when the uncompromising tions and submitted to the electorate a Radical, Brownlow, resigned as referendum on calling a constitutional governor to take a seat in the United convention. The convention was States Senate. In his place the speaker approved by a huge majority, and assem - of the senate, DeWitt C. Senter, became bled in January 1870. 6 governor. It was at this point that the Continued on page 22

AUGUST 2013 TENNESSEE BAR JOURNAL | 21 Quo Warranto continued from page 21

Before the convention assembled, the convention concluded, Radicals went to issue of Section 3 of the 14th Amend - Washington to urge deployment of ment again came to the forefront. A federal troops, but President Ulysses S. lengthy letter appeared in the Memphis Grant declined. For the time being, the Appeal in October penned by a Conser - federal government was not asserting vative who concluded that while the Section 3 or any other basis for interfer - delegates would be “civil officers of the ence in Tennessee’s politics. 8 highest legislative character” subject to Although Section 3 had no early the disqualification of Section 3, that impact in Tennessee, it was litigated in without a judicial determination that the Virginia in the months prior to the facts giving rise to the disability (i.e., constitutional convention. One of the participation or aiding in the rebellion), great historical ironies of the 14th there could be no disqualification. Amendment is that while it was enacted in large part to protect the newly freed There appears to have been little slaves, it provided a defense to former other discussion of the issue prior to or Confederate President Jefferson Davis in during the convention. Certainly, a connection with his indictment for number of former Confederate soldiers, treason. In the view of Chief Justice politicians and sympathizers were dele - Salmon P. Chase, a wartime Radical who gates to the convention. And these men moderated his views after the war, were aware that they were being Section 3 constituted a punishment that watched. As the president of the conven - invoked the double jeopardy clause of Salmon P. Chase tion, former Confederate General John the United States Constitution. Davis’s C. Brown said when he accepted leader - disqualification under Section 3 meant Andrew Johnson issued a general ship of the convention, “We cannot, we that no further punishment for treason amnesty for acts of treason arising out of must not, be unmindful of the great could be imposed. The matter was heard the rebellion. 9 changes that have impressed themselves before a packed courtroom in Richmond Chase and Underwood also disagreed upon our history. Let us accept the situa - on Dec. 4, 1868. Chase sat as the United relative to another aspect of the opera - tion, and not seek to alter circumstances States circuit judge for the District of tion of Section 3. A freed black, Caesar which have passed beyond our Virginia and was of the Griffin, was convicted in a Virginia court control.” 7 Brown’s reference opinion that the indict - for “shooting with the intent to kill” by was to black suffrage, ment should be Judge Hugh Sheffy, who was disqualified which, over a strident quashed on double by Section 3. In his capacity as district minority report, was jeopardy judge, Underwood granted a writ of written into the new grounds. United habeus corpus, finding that Section 3 constitution. While States District was self-executing and that Sheffy lacked Governor Judge John the capacity to be judge when he Brownlow’s regime Underwood convicted Griffin. In reviewing the case, shielded sat as the Chase considered the problems created Tennessee from other circuit by the invalidation of many government the hard hand of judge, and actions prior to July 1868. Congressional Underwood, If the construction now contended Reconstruction, a northern for be given to the prohibitive section, there were Radical of the the effect must be to annul all official elements both strongest sort, acts performed by these officers. No inside and outside disagreed, sentence, no judgment, no decree, no the state who requiring that the acknowledgment of a deed, no record were not happy that issue be certified to of a deed, no sheriff’s or commis - the Conservatives had the Supreme Court. sioner’s sale — in short no official act wrested control of On Dec. 25, 1868, — is of the least validity. It is impos - Tennessee away from the however, the issue was sible to measure the evils which such Radicals. Indeed, when the Joseph Brown Heiskell mooted as to Davis when Continued on page 23

22 | TENNESSEE BAR JOURNAL AUGUST 2013 Quo Warranto continued from page 22

a construction would add to the respect it. Recognizing that the issue was constitution, however, the Radicals in calamities which have already fallen still in play, a correspondent to the Union Washington put teeth into Section 3 by upon the people of these states. 10 and American requested a list of promi - eliminating Chase’s objection in Griffin . nent lawyers in Middle Tennessee who The Enforcement Act of 1870, passed on In Chase’s view, legislation was neces - would have no disability under Section 3 May 31, provided, in pertinent part: sary to put Section 3 into effect, noting for the Supreme Court elections sched - Sec. 14. And be it further enacted, that Section 5 of the 14th Amendment uled under the new constitution for later That whenever any person shall hold provided that Congress had the power that year. 12 office, except as a member of to pass legislation to enforce the Amend - Before the elections under the new Continued on page 24 ment. Chase ruled: The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections. And the final clause of the third section itself is significant. It gives to congress absolute control of the whole opera - tion of the amendment. These are its words: “But congress may, by a vote of two-thirds of each house, remove such disability.” Taking the third section then, in its completeness with this final clause, it seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two- thirds vote, and to be made operative in other cases by the legislations of congress in its ordinary course. This construction gives certain effect to the undoubted intent of the amendment to insure the exclusion from office of the designated class of persons, if not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner. Griffin’s Cas e, 11 F. Cas. at 21. 11

The fact that a Radical delegation from Tennessee visited Washington in the late winter of 1870 to urge military rule, including the United States attorney for the Eastern District of Tennessee, Eldad C. Camp, did not escape Conservative notice. While office seekers were doubtlessly encouraged by Chase’s deci - sion in Griffin , the Radical Republicans in Congress were not necessarily required to

AUGUST 2013 TENNESSEE BAR JOURNAL | 23 Quo Warranto continued from page 23

Congress or of some State legislature, Approximately six weeks later, the had prewar service in the General contrary to the provisions of the third Conservatives held a convention to Assembly and as United States senator, section of the fourteenth article of nominate six justices for the Supreme and clearly supported the Confederacy amendment of the Constitution of the Court under the new constitution. 13 during the war. Like Deaderick, United States, it shall be the duty of Questions were raised as to at least two Thomas Amos Rogers Nelson was a the district attorney of the United candidates, A. O. P. Nicholson, and Unionist. A prewar district attorney States for the district in which such Edwin Ewing. Ewing offered his opinion general and congressman, Nelson was person shall hold office, as aforesaid, that since he took an oath of amnesty elected to the United States Congress to proceed against such person, by under a proclamation issued by Presi - after Tennessee left the Union, but writ of quo warranto, returnable to dent Lincoln, he had no disability. nevertheless went to Washington to the circuit or district court of the Nicholson claimed he was not disquali - take his seat in the Federal congress. United States in such district, and to fied because he was pardoned by Arrested by Confederate authorities, he prosecute the same to the removal of Andrew Johnson prior to the adoption gained his freedom by promising to go such person from office; and any writ of the 14th Amendment. This opinion home and not stir up agitation against of quo warranto so brought, did not keep Nicholson’s the Confederacy. He resumed his pro- as aforesaid, shall take friends from trying to Union activities when the Federal army precedence of have a bill passed in occupied Knoxville in 1863. 15 all other cases Congress to On Aug. 17, 1870, soon after the on the docket of remove his election, Conservative papers in both the court to disability, Nashville and Memphis published a which it is which failed lengthy letter in the nature of a legal made return - because brief by Edwin Ewing, which argued able, and shall Senator Section 3 was inapplicable because it not be Brownlow was not only ex post facto as to the continued and actions giving rise to the disability, but unless for Congressman also because it was effectively a bill of cause proved Horace attainder. Ewing also argued that, in to the satisfac - Maynard Nicholson’s case, the pardon issued by tion of the objected to Andrew Johnson legally made him inno - court. it. 14 cent of any offenses. Finally, Ewing Sec. 15. And All six argued, the governor could not refuse to be it further Conservative commission the new justices, because a enacted, That nominees were quo warranto proceeding was necessary any person who elected in August to make the factual findings necessary to shall hereafter know - 1870. Two, Thomas L. deny them office. A letter from attorney ingly accept or Freeman and M. S. Frierson to Nicholson published hold any office Eldad C. Camp future governor several days later again argued that under the United and chief justice Nicholson’s pardon removed culpability States, or any State to which he is , formerly commanded for any acts prior to the amendment’s ineligible under the third section of Confederate regiments but had held no ratification, that it was ex post facto , and, the fourteenth article of amendment disqualifying prewar office. James W. for good measure, that Nicholson was of the Constitution of the United Deaderick was an upper East Tennessee not guilty of any acts proscribed by States, or who shall attempt to hold Unionist who maintained a low profile Section 3. 16 or exercise the duties of any such during the war. John Lewis Taylor Federal authorities in the state were office, shall be deemed guilty of a Sneed had prewar service in the unimpressed. In Middle Tennessee, quo misdemeanor against the United General Assembly and as state attorney warranto writs were issued for a number States, and, upon conviction thereof general, and was a brigadier general in of local officials in early October 1870. before the circuit or district court of Gov. Isham G. Harris’s Provisional Eventually, as many as 180 cases were the United States, shall be imprisoned Army of Tennessee but was not brought under Section 3 and the not more than one year, or fined not accepted as a Confederate general when Enforcement Act. One application for a exceeding one thousand dollars, or Harris turned the army over to the writ was quoted in the Nashville Union both, at the discretion of the court. Confederate government. Nicholson and American relative to T. K. Grigg, a

24 | TENNESSEE BAR JOURNAL AUGUST 2013 Davidson County justice of the peace, law made it “obligatory” to institute the was necessary to hasten a decision on reciting that Grigg, prior to the war had proceedings. 18 the quo warranto cases, as a case been a constable, had taken an oath to Tennessee’s United States District involving the same principles had uphold the Constitution of the United judge was Connally F. Trigg, a Virginian already gone up to the Supreme Court States, that he had fought in the Rebel transplant to Tennessee who remained of the United States” from Louisville. army, and that his disabilities had never loyal to the Union and was appointed Trigg’s approach was applauded by the been removed by Congress. 17 by President Lincoln when West members of the Memphis bar, as it was On Oct. 22, 1870, United States Humphries was impeached and widely believed that action would even - Attorney Eldad C. Camp, part of the removed for Confederate allegiance. tually be taken by Congress to remove Radical delegation that seven months Trigg was of a conservative bent, and all disabilities. Attempting to bypass before had urged armed federal inter - rapidly dismissed one of the cases Trigg, the Radicals made a motion in vention in Tennessee, filed informations brought in Middle Tennessee, on the the Supreme Court on Jan. 30, 1871, to against justices Nicholson, John L. T. basis that the oath a former soldier took advance the Tennessee quo warranto Sneed, T. A. R. Nelson, and Tennessee was not an oath to uphold the Consti - cases on the docket, but the Supreme Attorney General Joseph B. Heiskell, a tution as required by Section 3. At a Court refused to do so, stating “that the former Confederate congressman and a hearing on one of the other Middle cases were not of sufficient importance notorious East Tennessee rebel. Conser - Tennessee cases two days later, Trigg to justify such a course.” 19 vatives claimed that the institution of the did not seem impressed by the defense’s In February 1871, indictments were proceedings were a simple political ploy ex post facto argument, noting that the filed in the cases in Knoxville, one case to put Radicals on the court, perhaps 14th Amendment itself allowed ex post each against Nicholson and Nelson, and orchestrated by Horace Maynard, while facto laws on the subject of the Amend - an amazing 10 cases were filed against the Radical organ Knoxville Weekly ment. Trigg stated, at the close of the Continued on page 26 Chronicle indicated that the state of the argument, “that he did not know as it

AUGUST 2013 TENNESSEE BAR JOURNAL | 25 Quo Warranto continued from page 25

Sneed, alleging that each gave “aid and judicial, military, and naval service of the Tennessee legal history. Whipped up by comfort” to the “traitorous organization United States, heads of departments, politics made all the more partisan known as the Confederate States of and foreign ministers of the United because the contending parties were only America.” 20 It appears that at least four States.” President Grant issued a direc - a few years before literally shooting at one cases were filed against Heiskell, who tive to the various United States Attor - another, the cases were resolved as cases was hated in East Tennessee as a virulent neys to dismiss the various quo warranto driven by politics often are, by the secessionist. 21 While Sneed, Nicholson cases pending, except those not covered passage of time, the softening of passions, and Heiskell were unvarnished Confed - by the Amnesty Act. Given the fact that and a judge’s calm consideration of the erates, it must have been particularly Nicholson was a Senator in the 36th and best interests of the public. galling to Nelson, who was threatened 37th Congresses, and Nelson technically with physical harm by secessionists after a member of the 37th Congress, the SAM D. ELLIOTT is a his efforts on the part of the Union in Amnesty Act did not resolve their cases, member of the Chat - 1861 and imprisoned by the Confed - although it did Sneed’s and presumably tanooga firm of Gearhiser, erate government, to be indicted for Heiskell’s. 23 Peters, Elliott and Cannon aiding the Confederacy. 22 The cases against Sneed and Nelson PLLC. He is a past presi - In the end, Trigg’s decision to slow were dismissed on July 9, 1872. The dent of the Tennessee Bar walk the cases allowed events in Wash - case against Nicholson was dismissed on Association and the Chat - tanooga Bar Association, and the author or 24 ington to moot the issue. Another year Sept. 16, 1872. While Grant may not editor of several books and articles on and a half went by, during which time have taken steps to cease the prosecu - Tennessee in the Civil War era. He dedicates tion, his suspension of United States this article to the memory of Charlie Gearhiser. Attorney Camp at the insistance of “… the contending parties Brownlow and Maynard resulted in Camp’s resignation late in 1871. Notes were only a few years before Without this fiery Radical to push the 1. Statutes at Large, Proclamations and literally shooting at one case, it seems likely his successor looked Treaties of the United States of America, at the facts of Nicholson’s pardon and December 1867, to March, 1869, Vol. 15 another … the cases were Nelson’s resignation in 1871 and strong (Boston: Little, Brown & Company, 1869), 708. Unionism during the war to determine 2. Slaughter-House Cases, 83 U.S. 36, 125 resolved as cases driven by that pursuit of the quo warranto cases (1873) (Swayne, J., dissenting) politics often are, by the was no longer in the best interests of the 3. Horace Edgar Flack, The Adoption of the government. 25 14th Amendment, (Baltimore: Johns Hopkins passage of time, the Nicholson served as chief justice Press, 1908), 127-33. until his death on March 23, 1876. 4. Robert E. Corlew, Tennessee: A Short softening of passions, and Sneed served his eight year term on the History, 2nd ed. (Knoxville: University of a judge’s calm consideration supreme court, and later became vice- Tennessee Press, 1990), 331-39. president of the American Bar Associa - 5. “Who Shall Be Governor,” Nashville of the best interests tion, dying in 1901. T. A. R. Nelson died Union and American, November 14, 1868; “A of cholera in 1873. Death came last to Radical Protest,” Nashville Union and American , of the public.” the fiercest of the contestants in this March 3, 1869. story. Hard-core secessionist Heiskell 6. Corlew, Tennessee: A Short History, 342- served out his term as attorney general 45, 349. Justice Nelson resigned his office, to be and practiced law until 1892, and 7. Journal of the Proceedings of the replaced by Robert McFarland, another enjoyed his retirement until his death in Convention of Delegates Elected by the People Confederate officer who held no office 1913 at the ripe age of 89, having of Tennessee to Amend, Revise, or to Reform or before the war, although Nelson’s resig - started a law firm that is one of the pred - Make a New Constitution for the State, nation did not affect the pendency of his ecessors to today’s Baker, Donelson. His (Nashville: Jones, Purvis & Co., 1870), 8. case. On May 22, 1872, Congress passed Radical antagonist, Eldad C. Camp, 8. “Who May be Members of a State a wide amnesty that removed the outlived even Heiskell, dying in 1920 Convention?” Memphis Appeal , October 3, disabilities from all but a few former after amassing quite a fortune in mining 1869; Robert H. White, ed., Messages of the Confederates, “except Senators and and other interests. 26 Governors of Tennessee, (Nashville: Tennessee Representatives of the thirty-sixth and The quo warranto cases are so obscure Historical Commission, 1963) 6:84; Corlew, thirty-seventh Congresses, officers in the that they never even became a footnote in Tennessee: A Short History, 349-51.

26 | TENNESSEE BAR JOURNAL AUGUST 2013 9. C. Ellen Connally, “The Use of the 14th Tennessee Supreme Court, Oliver P. Temple, Curtis Collier and Deputy Clerk John Medearis Amendment by Salmon P. Chase in the Trial of Notable Men of Tennessee (New York, 1912), for their assistance in accessing sources. Jefferson Davis,” 42 Akron L. Rev. 1165 (2009). The Tennessee Encyclopedia of History and 21. Marvin Byrd, A Unionist in East This article provides a good synopsis of the Culture, and Caldwell, Sketches of the Bench Tennessee: Captain William K. Byrd and the legal and political issues surrounding Davis’s and Bar of Tennessee, (Knoxville, 1898). Mysterious Raid of 1861, (Charleston: The prosecution. 16. “Political Disabilities,” Nashville Union History Press, 2011), 144. 10. Griffin’s Case, 11 F. Cas. 7, 15 (C.C.D. and American, August 18, 1870; “The Four - 22. Nelson was also one of Andrew Va. 1869). teenth Amendment,” Memphis Appeal , August Johnson’s defense counsel during his impeach - 11. Chase’s opinion in Griffin was printed 18, 1870; “Political Disabilities,” Nashville ment trial. on the front page of the Nashville Union and Union and American, September 2, 1870. 23. Caldwell, Sketches of the Bench and Bar American, a Conservative organ. “Important Some years later, the United States Attorney of Tennessee, 311-14;” Resignation of Judge Legal Decision,” Nashville Union and American , General agreed that a pardon prior to the ratifi - Nelson,” Knoxville Daily Chronicle , November May 14, 1869. cation of the 14th Amendment neutralized a 30, 1871; Act of May 22, 1872, 17 Stat. 142; 12. “Reconstruction,” Memphis Daily Section 3 disqualification. 18 Op. Att’y Gen. Proclamation of June 1, 1872, Papers of Appeal, March 16, 1870; “Supreme Judges — 149 (1885). Who are Qualified,” Nashville Union and Amer - 17. “Quo Warranto,” Nashville Union and ican , March 31, 1870. American, October 12, 1870; “Enforcing the 13. “To forstall squabbling about the initial Fourteenth Amendment,” Fayetteville Observer , makeup of the Court, a schedule to the Consti - October 13, 1870; “The Knoxville Press and tution provided that the Court should at first Herald,” Nashville Union and American , July 11, be composed of six judges, two from each 1872; “Political Disabilities — The Question in grand division. The first judge to resign after the Federal Court,” Nashville Union and Amer - January 1st, 1873 would not be replaced. This ican , October 20, 1870. In state court, the elec - schedule left to chance the choice of which tion of W. W. Ward to the post of chancellor for division would be underrepresented.” R. Ben the 5th Chancery Division was challenged on Brown, “The Tennessee Supreme Court During the basis of Ward’s ineligibility under Section 3. Reconstruction and Redemption,” in James W. The case was heard by Confederate veteran Ely, ed., A History of the Tennessee Supreme (and future governor) Chancellor A. S. Marks Court, (Knoxville: University of Tennessee who denied an injunction on the basis of the ex Press, 2002), 121. post facto operation of the disability. “Political 14“Judicial Convention,” Nashville Union Disabilities,” Nashville Union and American , and American, July 12, 1870; “Judge October 18, 1870. Nicholson’s Disabilities,” Nashville Union and 18. “Important Legal Proceedings,” Knoxville American , July 13, 1870. The issue also affected Chronicle , October 23, 1870; “The Supreme the election for governor scheduled for Court and the Fourteenth Amendment,” Thomas Amos Rogers Nelson November, 1870. The Conservatives had four Knoxville Weekly Chronicle , November 2, 1870; potential nominees, John C. Brown, William B. “The Movement to Radicalize the Supreme Ulysses S. Grant, 23:155. Bate, William A. Quarles, and Arthur S. Colyar. Court,” Columbia Herald , November 2, 1870. 24. “The Courts”, Knoxville Daily Chronicle, Brown, Bate and Quarles were former Confed - 19. Caldwell, Sketches of the Bench and Bar September 17, 1872. No reference to the dispo - erate generals, and Colyar was a Confederate of Tennessee, 306-7; “The Quo Warranto sition of Heiskell’s cases could be located, but he congressman. Bate was clearly disqualified as a Cases,” Nashville Union and American , served as attorney general until 1878. The Act of prewar member of the General Assembly. November 6, 1870; “The City,” Nashville Union May 22, 1872 presumably resolved his case. Quarles held judicial office of a temporary and American , November 8, 1870; “Trigg and 25. Camp to Grant, November 3, 1871, nature during the disability of the regular Emmons,” Knoxville Daily Chronicle , February Papers of Ulysses S. Grant, 22:427. judge, and argued that as he held the office 14, 1871; “The Quo Warranto Cases,” Nashville 26. ”Death of Judge Nicholson,” Memphis “locum tenens,” the disability did not apply. Union and American , February 3, 1871. Daily Appeal , March 24, 1876; “Death List of A Brown and Colyar not only did not hold 20. With the assistance of Eastern District Day,” New York Times , July 30, 1901; “A Tribute prewar office, but also received a pardon prior historian Don Ferguson and Shane Bell of the to the Memory of Hon. Joseph B. Heiskell,” to the adoption of the 14th Amendment. All National Archives, the author was able to 127 Tenn. 733; “Major Eldad C. Camp,” but Brown eventually dropped out and Brown review images of the docket book with entries http://wate.net/wate/history/ was elected. copying the various indictments, bonds, and major-camp accessed April 9, 2013. 15. Compiled from Ely, A History of the other entries. I am also indebted to Judge

AUGUST 2013 TENNESSEE BAR JOURNAL | 27 BOOK REVIEW BY DONALD F. PAINE Congressman Lincoln: The Making of America’s Greatest President Illinois lawyer served a single term in the United States House of Representatives from 1847 to 1849. Little has been written about this part of his legal career. Consequently I recommend that you purchase and read Mr. DeRose’s book.

By Chris DeRose | You will find examples of Lincoln’s Before leaving Washington in March Threshold Editions | oratory. It is also interesting to learn 1849 at the end of his legislative term, about his colleagues in the Capitol, Abraham Lincoln orally argued his only $26 | 335 pages | 2013 including former President John Quincy U.S. Supreme Court case, Lewis for use of Adams and Kentuckian Henry Clay. Longworth v. Lewis . It involved the James K. Polk of Tennessee was our commencement of a statute of limita - president at the time. Lincoln opposed tions. Lincoln lost. “Polk’s War” against Mexico. I was disap - pointed to find two of my heroes in DONALD F. PAINE is a past president of the disagreement. Tennessee Bar Association and is of counsel to Did Lincoln get legislation enacted? the Knoxville firm of Paine, Tarwater, and Bickers Not much. A law creating new mail routes LLP. He lectures for the Tennessee Law Institute. (“postal routes”) topped his short list.

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28 | TENNESSEE BAR JOURNAL AUGUST 2013 WHERE THERE’S A WILL BY EDDY R. SMITH It’s Trust Time in Tennessee! It’s football time in Tennessee! Soon fans will hear those words as the Volunteers line up against to begin the Coach Butch Jones era. While expectations are modest for this season, many fans are optimistic that good times are ahead for Big Orange football. Similarly, the Tennessee legislature and Gov. Haslam hope that Tennessee asset protection trusts, aided by recent trust law changes,

will bring good times for Big Orange trust tion trusts” (DAPTs). DAPTs, generally business. Two recent federal bankruptcy requiring the use of a trustee in the state, “The Tennessee legislature cases provide a game plan for victory. purport to offer the same creditor protection available in offshore jurisdic - and Gov. Haslam hope ‘Protect our kickers, our quarter - tions at a reduced cost, hassle, and back, our lead and our ball game’ cross-border risk. Tennessee joined the that Tennessee asset The fourth of legendary UT coach Gen. DAPT states in 2007 with passage of the protection trusts, aided by Robert Neyland’s seven game maxims Tennessee Investment Services Act. 3 was “Protect our kickers, our quarter - recent trust law changes, back, our lead and our ball game.” 1 A Recruit Nationally similar maxim of estate planning is Tennessee’s trust law was modified in will bring good times for protect clients’ assets from creditors, 2013 with the specific goal of recruiting Big Orange trust business.” divorces, and spendthrift beneficiaries. If trust business from around the country, Gen. Neyland were a Tennessee estate competing with states such as South planning attorney, he might recommend Dakota that have been particularly a Tennessee Investment Services Trust successful in attracting trust business. (TIST) for such protection. The changes, effective July 1, 2013, Under the common law, “self-settled make it significantly harder for a cred - spendthrift trusts” were void as to credi - itor to reach DAPT assets. 4 tors, because it was against public policy to allow individuals to avoid their credi - TIST Maxims tors by placing their assets in a trust While DAPT laws are largely untested in from which they could benefit. 2 The the courts, two recent federal bankruptcy settlor-beneficiary’s creditors could reach cases, 5 In re Mortensen 6 and In re Huber 7, the assets to the maximum extent that weighed the efficacy of Alaska DAPTs and the assets could be used for the settlor- found them wanting. The cases provide beneficiary’s benefit. As a result, many maxims for TIST planners seeking asset wealthy Americans instead transferred protection victory for their clients. assets to offshore trusts in jurisdictions that uphold self-settled spendthrift Get big. In Mortensen , the debtor was trusts and provide substantial barriers to an Alaska resident making use of the creditors reaching trust assets. Alaska DAPT statutes. It appears that he In an effort to keep some of that trust met the basic requirements of the business at home, at least 14 states have statutes and was technically solvent partially supplanted the common law upon funding the trust. However, the rule by statute, allowing individuals to court applied Bankruptcy Code Section create self-settled “domestic asset protec - Continued on page 30

AUGUST 2013 TENNESSEE BAR JOURNAL | 29 Where There’s A Will designated by the settlor to govern convincing the top talent in Tennessee to continued from page 29 the validity of the trust, provided that play for the home-state team. 9 Such a this state has a substantial relation to strategy is perfect for developing TIST 548(e)(1), which provides: the trust and that the application of business, as the conflicts of laws issues In addition to any transfer that the its law does not violate a strong in Huber should be no threat to TISTs [bankruptcy] trustee may otherwise public policy of the state with which, created by Tennessee residents using avoid, the trustee may avoid any as to the matter at issue, the trust has assets located in Tennessee (and any transfer of an interest of the debtor in its most significant relationship. 8 other assets not physically located in a property that was made on or within jurisdiction without DAPTs), particularly 10 years before the date of the filing At trust creation, Mr. Huber, one of if the trust has no trustees located of the petition, if— the trustees, and all the beneficiaries of outside Tennessee. such transfer was made to a self- the trust resided in Washington; all the It is unclear how well TISTs will work settled trust or similar device; property placed in the trust, except one for Tennessee residents funding the trusts such transfer was by the debtor; small CD, came from Washington; and with real property located in a non-DAPT the debtor is a beneficiary of such much of the property placed in the trust state, or for residents of other states, trust or similar device; and was Washington real property or busi - particularly if funding the trust with the debtor made such transfer with assets not physically located in Tennessee. actual intent to hinder, delay, or The Sixth Circuit position on choice of defraud any entity to which the “The Sixth Circuit position laws in bankruptcy (forum state or debtor was or became, on or after the on choice of laws in federal/Restatement) and the location of date that such transfer was made, the bankruptcy proceeding will deter - indebted. bankruptcy … and the mine whether Tenn. Code Ann. Section 35-15-107, which seeks a broad applica - Because the value of Mr. Mortensen’s location of the bankruptcy tion of Tennessee law to trusts that claim assets outside the trust barely exceeded proceeding will determine Tennessee governing law, controls. his debts, the court found that he made the transfer to the trust with actual whether Tenn. Code Ann. Build it brick by brick. Hoping to intent to defraud current and future be given at least four or five years to creditors. TIST settlors must execute Section 35-15-107, restore the Vols to their former glory, solvency affidavits, but that might not be which seeks a broad Coach Jones has said of his rebuilding enough for 548(e)(1). No team can job, “It’s like building a building. You compete in the SEC without size at most application of Tennessee build it brick by brick.” 10 Translation: positions and only clients whose net “This is going to take a while.” worth is significant after funding the law to trusts that claim The same is true for effective DAPT trust will have reasonable confidence Tennessee governing planning. In Huber , the debtor made a that their transfers are safe from the number of mistakes, but all were viewed 548(e) intent test. law, controls. in light of his waiting until he was in trouble with creditors to seek DAPT Build a fence around Tennessee. protection. The court found that Mr. The DAPT in Huber was created by a ness interests. The only relation to Huber “was or had to be aware of the Washington resident but designated Alaska was that it was the location in gathering storm clouds.” In a number of Alaska as the governing law. Alaska which the trust was to be administered emails between Mr. Huber and his estate recognizes DAPTs but Washington does and the location of one of the trustees, planning attorney, Mr. Huber expressed not, creating a conflict in the laws of the Alaska USA Trust Company (AUSA). urgency in setting up the trust. two states as to the validity of the DAPT. Since the court found that Washington The court found the transfers to the The court said federal bankruptcy courts had the most significant relationship trust to be fraudulent under Section in the Ninth Circuit apply federal, not with the trust and Washington has a 548(e)(1) of the Bankruptcy Code, as in forum state, choice of law rules, and strong public policy against self-settled Mortensen. The court also found the follow the approach of the Restatement trusts, the court disregarded Alaska law transfers fraudulent under Washington’s (Second) of Conflict of Laws (1971). and applied Washington law to find that version of the Uniform Fraudulent Section 270 of the Restatement provides Mr. Huber’s transfers to the trust were Transfers Act (UFTA), pursuant to that an inter vivos trust of interests in void as to creditors. Section 544(b)(1) of the Bankruptcy movables will be valid if it is valid Part of Coach Jones’ success will be to Code, which gives the bankruptcy under the local law of the state “build a fence” around Tennessee, trustee authority to bring an action to

30 | TENNESSEE BAR JOURNAL AUGUST 2013 avoid fraudulent transfers under state possible between transfers to a TIST and indebted to Mr. Huber threatened to law. Under the Washington UFTA, a a future debt or bankruptcy. As stated transfer assets to a DAPT (before Mr. transfer is fraudulent if the transfer was above, TIST settlors must execute Huber had done so), Mr. Huber asserted made without consideration and the solvency affidavits, but those documents in writing that such a trust would be “debtor acts with actual intent to hinder, can be self-serving and will not establish fraudulent as to him. Jack Sells couldn’t delay, or defraud a creditor.” intent. Lawyers counseling potential have done a better job giving away the In determining whether Mr. Huber TIST settlors should perform their own play book. 13 transferred his assets to the trust “with due diligence as to whether the TIST actual intent to hinder, delay or defraud” client has “gathering storm clouds.” Conclusion a creditor, the court described the many Big Orange football has a steep climb to “badges of fraud” in the case, including The players don’t call the plays. Mr. get back to the top of the college foot - (1) creditors already were threating liti - Huber’s son, another individual (appar - ball mountain, and Big Orange trust gation at the time of the transfers; (2) ently a stepdaughter), and AUSA were business has a long way to go to the transfers represented 78 percent of trustees. The evidence showed that Mr. become the South Dakota of the South. the value of Mr. Huber’s property; (3) he Huber made requests for disbursement However, Tennessee residents who hire continued to benefit from the assets from his son, the son then prepared a Tennessee trustees for Tennessee assets transferred; (4) he did not receive any request for a payment, AUSA approved have reasons for great optimism that consideration for the transfers; and (5) the disbursement without any inquiry, TISTs are the best play to achieve asset the trust specifically stated that it was the son never met with representatives protection victory. Go Vols, beat ’Bama! created for the purpose of sheltering of AUSA, and “AUSA did nothing to Go Big Orange TISTs, beat creditors assets from his creditors. become involved with the [preservation] and maybe South Dakota! It’s trust time Because of the multiple badges of and/or protection of the assets of the in Tennessee! fraud, the bankruptcy court concluded Trust and was acting merely in the that Mr. Huber made the transfers “with nature of a straw man.” EDDY R. SMITH practices trust and estate law actual intent to hinder, delay or defraud” A TIST requires at least one “qualified with Holbrook Peterson Smith PLLC in Knoxville. his creditors and ruled that the transfers trustee” who “materially participates” in He is a fellow of the American College of Trust to the trust were voidable by the bank - the administration of the trust, 12 but the and Estate Counsel and past chair of the ruptcy trustee. bar for material participation appears Tennessee Bar Association Estate Planning and Probate Section. He can be reached at Would the result have been different low and a court could find that a trustee [email protected]. for a TIST? The 10-year look back of meeting the basic statutory requirements Section 548(e) applies to TISTs, and the is not really in charge. Tennessee UFTA provision is similar to Washington’s. 11 Both provisions call for Lastly, don’t show the other team early planning to put as much time as the play book. When a business partner Continued on page 32

AUGUST 2013 TENNESSEE BAR JOURNAL | 31 Where There’s A Will continued from page 31

Notes four years. With this revision, if a person is 1. http://www.volnation.com/ a creditor when the qualified disposition to neylands_maxims.php. Although the seven the TIST is made, the creditor has the Follow us game maxims are well-known, it appears Gen. longer of (a) two years after the qualified Neyland had at least 38 team maxims. disposition is made or (b) six months after http://www.utsports.com/blog/2012/03/ the creditor discovers or should have on Twitter! neylands-38-team-maxims.html. discovered the qualified disposition. If the 2. See Kurt A. Friesen, “Domestic Asset person becomes a creditor of the settlor Protection Trusts: 15 Years After Alaska and after the qualified disposition is made, the Delaware,” ABA Trust & Investments , March- action must be commenced within two April 2012 (citing Restatement (Third) of years after the qualified disposition. A cred - Trusts, §§ 58(2), 60 cmt. F (2003)). itor cannot bring a claim with respect to 3. Tenn. Code Ann. §35-16-101 et seq. See property comprising a qualified disposition Dan W. Holbrook, “The TIST Test: Tennessee unless he or she can prove by clear and Competes for Trust Dollars,” 43 Tenn. B.J. 21- convincing evidence that the settlor trans - 22 (Aug. 2007); Darsi Newman Sirknen, ferred the property with the intent to “Tennessee’s Investment Services Act: A Monu - defraud that specific creditor. See also Tenn. mental Change in Tennessee Trust Law,” 43 Code Ann. §35-15-505(g). Tenn. B.J. 16-20 (Sept. 2007); Dan W. Holbrook, When to TIST? Here’s a List, 43 5. Thanks to Hon. Richard S. Stair Jr., Tenn. B.J. 25-26 (Nov. 2007). Bankr. E.D. Tenn., and Steven Lipsey, Esq., @TennesseeBar 4. 2013 Tenn. Publ. Acts 390. The far- Knoxville, for helping this non-bankruptcy e Tennessee Bar Association provides reaching changes include: lawyer get the bankruptcy stuff right. quality CLE, timely information and Tenn. Code Ann. §35-15-105, Default and 6. Battley v. Mortensen (In re Mortensen ), Ch. advocacy for the profession. TBA Mandatory Rules, and §35-15-404, Trust 7 Case No. A09-00565-DMD, Adv. No. A09- Assistant Executive Purposes. Remove the requirement that trust 90036-DMD., 2011 Bankr. LEXIS 5004 (Bankr. Director Barry Kolar purposes be “not contrary to public policy.” D. Alaska May 26, 2011). tweets what you want to Tenn. Code Ann. §35-15-502, Spendthrift 7. Waldron v. Huber (In re Huber ), Ch. 7 Case know so you can keep provision. If a trust has a spendthrift provi - No. 11-41013, Adv. No. 12-04171, 2013 up with the profession. sion, no creditor or assignee of a beneficiary Bankr. LEXIS 2038 (May 17, 2013) may force any distribution, even if the bene - 8. Restatement (Second) of Conflict of Laws ficiary has the right to enforce a mandatory §270(a) (1971) (emphasis added). @TennBarJournal distribution. A fiduciary apparently can 9. http://www.saturdaydownsouth.com/ e Tennessee Bar Journal i s the monthly simply stop making mandatory distributions. 2013/tennessee-recruiting-class-6-1/. publication of the Tennessee Bar Tenn. Code Ann. §35-15-504, Discre - 10. “Tennessee Vols building on brick Association. Its editor, tionary interests — Effect thereof. Regard - theme,” Chattanooga Times Free Press , June 3, Suzanne Craig less of whether a trust contains a spendthrift 2013, http://www.timesfreepress.com/ Robertson, tweets news provision, if an interest is a discretionary news/2013/jun/02/vols-building-on-brick- and tips about writing, interest, no creditor may force or reach a theme/. the law and more. distribution or require a fiduciary to exer - 11. Tenn. Code Ann. §66-3-305. cise discretion to distribute. 12. Tenn. Code Ann. §35-16-102(12). @TBAMaven Tenn. Code Ann. §35-16-104, Restrictions 13. See http://www.cstv.com/sports/ e Membership Maven is the alter on actions, remedies, and claims. The legis - m-footbl/stories/091702acd.html. ego of Tennessee Bar Association’s lature narrowed the time to file a claim to Membership Director, Kelly Stosik. set aside transfers to TISTs as fraudulent Let’s get the most out and heightened the burden of proof. Prior of membership and to this change, creditors had to challenge have some fun! qualified dispositions as fraudulent pursuant to the limitations period in the Uniform Fraudulent Transfer Act, Tenn. Code Ann. §66-3-310, which is essentially

32 | TENNESSEE BAR JOURNAL AUGUST 2013 PAINE ON PROCEDURE BY DONALD F. PAINE Practical Advice for Collecting a Judgment My guess is that the civil procedure most important to plaintiff clients is least known to their lawyers. So grab a copy of Tennessee Rule 69. You need not bother with Federal Rule 69; federal courts use state procedure. As soon as you win at trial, file certified copies of your judgment in

the register’s office of every county Garnishment can be delicious. Take where the defendant/judgment debtor depositions (“discovery in aid of execu - “Garnishment owns real property. That will give you a tion”) of the judgment debtor and his or judgment lien against the realty for 10 her significant others. I once had a can be delicious.” years. Moreover, you can move to debtor’s former girlfriend come to my extend the judgment every decade for an office to tell me where the liar’s loot was additional 10 years. It’s a no lose located. My pro bono client collected motion. File copies of the order granting every penny owed. the motion in the same registers’ offices. You’ll find some statutes in the Code Once your lien is perfected, no levy is conflicting with Rule 69. But don’t needed for real property. It can be sold worry about them. They are “of no by auction under the procedure in Rule further force or effect” under Tenn. Code 69.07(4). Ann. §16-3-406. Personal property also can be sold by auction under Rule 69.06(3). A levy DONALD F. PAINE is a past president of the is accomplished by the sheriff “exer - Tennessee Bar Asso 3ciation and 3 is of counsel to cising control over the judgment the Knoxville firm of Paine, Tarwater, and Bickers debtor’s personalty.” LLP. He lectures for the Tennessee Law Institute.

        Thomas F. Bloom, J.D.      ! #    "   "   !

                  

AUGUST 2013 TENNESSEE BAR JOURNAL | 33

3 3 3 3 BUT SERIOUSLY FOLKS BY BILL HALTOM Football, Corn from a Jar … and Legal Fees My daughter, a/k/a her Royal Highness the Princess, is now a rising high school senior trying to figure out where she wants to go to college. She recently broke the news to me that she is considering applying to Vanderbilt. As a proud graduate of the University of Tennessee (Bachelor of Conservative Arts, 1975), I quickly responded,

“Well, Princess, if you want to go to a from Yale, but that’s another story.) football school, apply to Vanderbilt. But Most Tennessee fans do not know all “Moonshine has always if you want to pursue academic excel - the words to “Rocky Top.” In fact, most lence, apply to the University of of us Vols fans just know the chorus: been extremely important Tennessee.” Rocky Top, you’ll always be to us Tennessee lawyers. When I applied to the University of Home sweet home to me! Tennessee in the fall of 1969, to get Good … ol’ … Rocky Top (WOO!) A lot of criminal defense admitted, you just had to have a vacci - Rocky Top, Tennessee nation…and they would waive that if attorneys in this state have you looked healthy. Some Vol fans only know one word But in recent years, the University of in the song, the gratuitous “WOO!” I say made a good living Tennessee has dramatically raised its “gratuitous,” because the word “WOO” defending moonshiners.” academic standards. If you don’t believe is not actually found in the lyrics of it, just watch the Tennessee Volunteers “Rocky Top.” It is something exuberant play football this fall. Clearly, the Vols fans have thrown into the song over Tennessee team is comprised of very the years, probably because when they bright students who excel in the class - are singing, they are usually inebriated. room, but not on the football field. While your typical Vol football fan The world has been turned upside will sing “Rocky Top” 20 or 30 times down. The bright scholars from the during each Tennessee football game, University of Tennessee are now few fans ever sing the second or third hoping to someday beat Vanderbilt in verses of the song. This is too bad, football again. because they really are quite interesting. On Aug. 31, more than 100,000 They deal with a subject that, to my Tennessee fans will pack Neyland knowledge, is not dealt with in any Stadium to watch the orange-clad other college football fight song, specifi - student-athletes play Austin Peay. This cally … moonshine. may be the only game this fall in which The second verse of “Rocky Top” goes the Vols are favored. like this: But win or lose, the highlight of the Once two strangers climbed ol’ Rocky Volunteers’ opening football game will Top, lookin’ for a moonshine still take place just moments before the kickoff Strangers ain’t come down from when 100,000 fans will rise as one and Rocky Top join the Pride of the Southland band in Reckon they never will! singing Tennessee’s unofficial fight song, “Rocky Top.” (Tennessee’s official fight And then the third verse reiterates the song is “Down the Field,” which we stole moonshine theme:

34 | TENNESSEE BAR JOURNAL AUGUST 2013 Corn won’t grow at all on Rocky Top shine is stronger than ever, and I’m not someday our Vols will beat Vanderbilt in Dirt’s too rocky by far just talking about in terms of 50-percent football again. Until then, we Vols fans That’s why all the folks on Rocky Top alcohol content. According to a recent should remain in high spirits. As thirsty Get their corn from a jar! article in Time, the demand for Tennesseans have said for generations Tennessee moonshine is booming, and every time they have taken a sip from a The fact that over half the lyrics to it’s not just coming from strangers who jar, “WOO!” “Rocky Top” are dedicated to moonshine climb old Rocky Top. Thirsty people shows just how important the illegal from all over America are now trying to BILL HALTOM is a partner with the Memphis white whiskey is to the Volunteer State. get their hands on Tennessee moon - firm of Thomason, Hendrix, Harvey, Johnson & First, moonshine has always been shine. Indeed, Appalachian moonshine Mitchell. He is past president of the Tennessee important to the people of Tennessee, has become one of the fastest-growing Bar Association and is a past president of the particularly poor ones who often have a categories in the spirits industry. Memphis Bar Association. hard time scratching out a living. Yes, According to Time , more than “Rocky Top” © 1967 House of Bryant Publica - making and selling moonshine has long 130,000 cases of moonshine were sold tions, written by Boudleaux and Felice Bryant. been illegal in most parts of Tennessee, in 2012, much of it totally legal. The Ole Lyrics used by permission of publisher. but as a client of mine once confided in Smokey Moonshine Distillery in Gatlin - me, “Mr. Haltom, I’m as honest as the burg sold more than 100,000 cases of times will allow!” moonshine last year. The Short Moun - Second, moonshine has always been tain Distillery in Woodbury is also ship - ATTORNEY/ extremely important to us Tennessee ping bottles (or jars) of “Short Mountain lawyers. A lot of criminal defense attor - Shine” all over the country. LAWYER neys in this state have made a good living In some states you can now buy Memphis defending moonshiners. You say crime Tennessee moonshine in Wal-Mart, The Office of the General Counsel, doesn’t pay? Well, it sure pays for lawyers Kroger, and the Piggly-Wiggly. Of University of Tennessee System is when the crime involves moonshine! course, in Tennessee, you can’t even buy seeking candidates for the position of Assistant or Associate General Counsel. Third, moonshine has been very Sunshine whiskey in a grocery store Most work will involve the University of important to the people of Tennessee in since the legal venues of all such sales Tennessee Health Science Center located that it has provided some southern are exclusively liquor stores. in Memphis. comfort to poor folks who can’t afford a It is, however, good to know that For complete position information and to access the online application, please visit French Bordeaux, a Napa Valley sauvi - Tennessee moonshine is now being the following: gnon, or a Lynchburg Jack Daniels. bought at Wal-Marts, Jitney Jungles, and https://ut.taleo.net/careersection/ut_knoxville/ Accordingly, when 100,000 Vols fans Sack O’ Suds across America. This could jobdetail.ftl?lang=en&job=13000000GJ in Neyland Stadium croon “Rocky Top,” provide a whole new meaning to the The University of Tennessee is an EEO/AA/Title they aren’t just singing in support of their word “revenuers.” VI/Title IX/Section 504/ADA/ADEA institution in the provision of its education and employment football team. They are singing in tribute And so, my fellow Vols fans, when we programs and services. All qualified applicants will to one of the great natural resources of gather at Neyland Stadium on Aug. 31 receive equal consideration for employment without regard to race, color, national origin, religion, sex, the Volunteer State, moonshine! for the big game against Austin Peay, let’s pregnancy, marital status, sexual orientation, gender But when 100,000 of my closest raise our glasses, or more accurately our identity, age, physical or mental disability, or covered veteran status. orange-clad friends and I gather at jars, not just to the Volunteers, but to Neyland Stadium on Aug. 31, we should Tennessee moonshine, that wonderful belt out “Rocky Top” stronger than ever, concoction that has generated legal bills and we should definitely sing all four for decades. THE UNIVERSITY of TENNESSEE verses. Why? Simple. Tennessee moon - I’m absolutely confident that

AUGUST 2013 TENNESSEE BAR JOURNAL | 35 CLASSIFIEDS

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