the cradle will rock - ogle, rowell & penland, p.c.aug 01, 2019 · 12 the cradle will rock...

The Cradle Will RockIntentional Misrepresentation of Paternity

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

Advice for Collecting a Judgment

AU G U S T 2 013 | VO L U M E 4 9 , N O . 8 T B A . O R G

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COVER STORY

12 The Cradle Will RockIntentional Misrepresentation of Paternityby Lacy A. Daniel

FEATURE STORIES

20 When the U.S. Attorney Sued to Remove Half the Tennessee Supreme CourtThe Quo Warranto Cases of 1870by Sam D. Elliott

3 PRESIDENT’S PERSPECTIVEYour Profession Needs Youby Cynthia Richardson Wyrick

4 LETTERS

JEST IS FOR ALL by Arnie Glick

5 YOU NEED TO KNOWNEWS: Justice Holder to Retire | Committee and Section Chairs NamedPEOPLE | LICENSURE & DISCIPLINE

28 BOOK REVIEWCongressman Lincoln: The Making of America’s Greatest President by Chris DeRose,Reviewed by Donald F. Paine

29 WHERE THERE’S A WILLIt’s Trust Time in Tennessee!by Eddy R. Smith

33 PAINE ON PROCEDUREPractical Advice for Collecting a Judgmentby Donald F. Paine

34 BUT SERIOUSLY, FOLKS!Football, Corn from a Jar ... and Legal Feesby Bill Haltom

36 CLASSIFIED ADVERTISING

A U G U S T 2 0 1 3 V O L U M E 4 9 , N O. 8

ON THE COVER

What are the conse-quences of lying

about who the fatherof a child is? See

page 12. Our model,4-month-old Collins,is the daughter of

former TBA Access toJustice CoordinatorSarah Hayman and

— no question aboutit — John Hayman.

Photo by SarahHayman, with thanks

to Jenny Jones.

Take a picture of this withyour smart phone and readthe Tennessee Bar Journal at www.tba.org

A U G U S T 2 0 1 3 V O L U M E 4 9 , N O. 8

2 | TENNESSEEBARJOURNAL AUGUST2 0 1 3

JOURNAL STAFFSUZANNE CRAIG ROBERTSON, [email protected] BUTLER, Publications & Advertising [email protected] KOLAR, Assistant Executive [email protected]

EDITORIAL BOARDANDRÉE SOPHIA BLUMSTEIN, Nashville, ChairWADE V. DAVIES, KnoxvillePAUL A. GONTAREK, NashvilleSCOTT GRISWOLD, KnoxvilleSUZANNE LANDERS,MemphisKAVITA GOSWAMY SHELAT,MemphisLAURA S. WOODS, KingsportDONALD F. PAINE, Editorial Board

Member Emeritus, Knoxville

THE TENNESSEE BAR JOURNAL is listed in the INDEX TO LEGAL PERIODICALS. Tennessee Bar Journal, ISSN0497-2325, is published by the Tennessee Bar Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, (615) 383-7421, monthly. Periodicals Postage Paid, Nashville, Tenn. Subscription price: $60 per year.Members: $22 per year. Individual issues: $10 per copy. Back issues sold on an “as available” basis. Statementsor opinions expressed herein are those of the authors and do not necessarily reflect those of the Tennessee BarAssociation, its officers, board or staff.

POSTMASTER: Send address correction to Tennessee Bar Journal, 221 Fourth Ave. N., Suite 400, Nashville, TN37219-2198.

© COPYRIGHT 2013 TENNESSEE BAR ASSOCIATIONADVERTISING POLICY: While the Tennessee Bar Journal attempts to confine its advertising to legitimate busi-ness endeavors, the statements and material appearing in the advertisements are solely the responsibility ofthe advertiser. The Journal and the Tennessee Bar Association do not directly or impliedly endorse, support orvouch for the authenticity of any representation made in any advertisement appearing herein. The Journaldoes not intend to accept any advertising material that is false and misleading. The Journal reserves the rightto refuse an advertisement it deems inappropriate.

CHANGE OF ADDRESS: If your address has changed, please notify the Tennessee Bar Association at 221 Fourth Ave.N., Suite 400, Nashville, TN 37219-2198, so your address will be updated for the Tennessee Bar Journal and otherTBA publications.

BOARD OF GOVERNORSCYNTHIA RICHARDSON WYRICK, Sevierville, President; JONATHAN O.STEEN, Jackson, President-Elect; WILLIAM L. HARBISON, Nashville, Vice Pres-ident; JACQUELINE B. DIXON, Nashville, Immediate Past President; SHERIEEDWARDS, Brentwood, Treasurer; JASON PANNU, Nashville, Secretary;JASON LONG, Knoxville, East Tennessee Governor (Position 1); ANDREWROSKIND, Knoxville, East Tennessee Governor (Position 2); GARY SHOCKLEY,

Nashville, Middle Tennessee Governor (Position 1); JAMES R. CARTIGLIA , Nashville, Middle TennesseeGovernor (Position 2); MICHELLE SELLERS, Jackson, West Tennessee Governor (Position 1); BRIANFAUGHNAN, Memphis, West Tennessee Governor (Position 2); ERIN MCARDLE, Jonesborough,Governor/1st District; TASHA BLAKNEY, Knoxville, Governor/2nd District; CHRIS VARNER, Chattanooga,Governor/3rd District; DONNA PIERCE, Sewanee, Governor/4th District; MARY DOHNER SMITH,Nashville, Governor/5th District (Position 1); DAN BEREXA, Nashville, Governor/5th District (Position 2);KIM HELPER, Franklin, Governor/6th District; JASON CREASY, Dyersburg, Governor/7th District; CARLCARTER, Memphis, Governor/8th District; CHARLES L. TROTTER JR., Huntingdon, Speaker/House ofDelegates; DAVID MCDOWELL, Chattanooga, President/TBA Young Lawyers Division; STACIEWINKLER,Memphis, President-Elect/TBA Young Lawyers Division; HON. JERRI BRYANT, Athens, Presi-dent/Tennessee Judicial Conference; District Attorneys General Conference representative to be deter-mined; CAMPBELL SMOOT, Tullahoma, President/District Public Defenders Conference; PAUL NEY,Nashville, General Counsel.

TENNESSEE BAR ASSOCIATION STAFFALLAN F. RAMSAUR, Executive Director; BARRY KOLAR, Assistant Executive Director; DENISEBENTLEY, Youth Court Coordinator; KAISHA BOND, CLE Coordinator; LANDRY BUTLER, PublicationsCoordinator; THERESE BYRNE, Director of Meetings; CHRISTY GIBSON, Assistant Committees andSections Coordinator; PAM JOHNSON NOLAN, Financial Administrator; JENNY JONES, ExecutiveAssistant; LAUREN HOPPER LEE, CLE Coordinator; STEVE KING, A/V & Webcasting Coordinator;LINDA MURPHY, Receptionist; LYNN POINTER, Programs Administrator; SUZANNE CRAIGROBERTSON, Editor, Tennessee Bar Journal; STACEY SHRADER JOSLIN, Media Relations and YoungLawyers Divison Director; BRITTANY SIMS, Leadership Law Coordinator; KELLY STOSIK, MembershipDirector; MINDY THOMAS-FULKS, Director of Continuing Legal Education; ELIZABETH SLAGLETODARO, Access to Justice and Public Education Coordinator; and TANJA TREZISE, Customer ServiceCoordinator/ Accounts Receivable.

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To find out more, visit TBALink atwww.tba.org/info/benefits. Or contact the TBA byemail — membership@ tnbar.org — orphone at (615) 383-7421.

AUGUST2 0 1 3 T ENNESSEEBARJOURNAL | 3

attacked, it would be easy to feel asthough we have lost the war. I submit toyou that the war is not over, and it istime for someone to do something aboutthese attacks. That someone is you!

For many years, your association hasfocused about 10 percent of your dueson advocating for our judicial systemand the profession in the legislature,using the services of our staff andprofessional lobbyists; however, in thesetimes of ever-increasing attacks on ourlegal system, the efforts of paid lobby-ists are not enough. Our legislatorsmust hear from each of us!

At our recent convention, a meetingwas convened to discuss a strategy forencouraging more lawyers to run foroffice, especially given that the numberof lawyers in our state legislature is atan all-time low. There was also discus-sion regarding how our professioncould effectively advocate in the legisla-ture on issues that we face. A number ofour lawyer-legislators took time out oftheir busy schedules to attend thismeeting. The insights that we gainedfrom them surprised me, and I thinkthey will you, too.

Our legislators are not actuallyhearing from very many members ofour profession. On the other hand, theyare hearing from a large number ofdoctors, dentists, and business owners.In light of this information, it is timethat we ask ourselves some importantquestions: (1) Do we know which legis-lators actually represent us? (2) Have we

attempted to establish a relationshipwith our legislators? (3) Have weworked in and/or contributed to thecampaigns of those running for officewho support our legal system? (4) Haveour local bar associations invited ourlegislators to speak at a meeting? (5)When we have events, do we recognizeour legislators when we recognize ourjudges? (6) Have we offered to lend ahand to our lawyer-legislators duringsession when they are required to beaway from their office?

You may have answered “no” to mostof the questions above. Many of us haveassumed that because we are membersof a profession made up of advocates, alarge number of our members arealready effectively advocating for ourprofession. Many of us also assume thatour opinions will not actually matter toour legislators. The truth is that ourlegislators want to hear from each of us— not because we are lawyers or barassociation leaders, but because we arevoters! With that said, because we arealso lawyers, we are in a unique posi-tion to provide assistance to our legisla-tors through sharing our legal insightsregarding the potential effect that aproposed bill would have and any legalissues we see with the way the bill isactually drafted. Even our lawyer-legislators are not experts in every areaof the law, so your insights as an expertin a particular field can be invaluable.

I know you are thinking that this

PRESIDENT’S PERSPECTIVE BY CYNTHIA RICHARDSON WYRICK

Your Profession Needs YouI 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

“The truth is that our legislators want to hear from each of us — not

because we are lawyers orbar association leaders, butbecause we are voters! …

Because we are alsolawyers, we are in a

unique position to provideassistance to our

legislators.”

Continued on page 4


Thanks, Mr. Armstrong!Attorney Ralph Armstrong (Chat-tanooga, age 83) passed away and hismemorial service was held [June 14]. Iwas a paralegal for another attorney andhe was an avid reader of the TennesseeBar Association magazine. He intro-duced the magazine to me and we oncediscussed the article on whether or nota dying statement was admissible incourt. Even though he didn’t reallypractice law by the time I met him wehad many wonderful conversationsabout the law, and he taught me the artof taking a witness statement. So themagazine is read by people that enjoy it,and the information is passed on tonon-lawyers who want to learn some-thing new. Thanks in memory of Ralph.

— Laura L. Mott

Did He Tie the Knot or Not?[This is in response to our question of Mr.Richard R. Ruth Jr., after he wrote to thankTBJ columnist Monica Franklin for her

help with a legal late-life love issue.]

The answer is yes, on April 22 in asmall Anglican church in Franklin.Living happily in Brentwood with mybride. You will not find two happier oldpeople. Williamson County is awonderful place to live.

— Richard R. Ruth Jr., Senior Counselorand Pro Bono Attorney Emeritus

More Praise for ‘Senior Moments’[This letter was written to TBJ columnistMonica Franklin.]I just read your excellent article onpowers of attorney in the Tennessee BarJournal (“Punch Up Your Power ofAttorney,” by Monica Franklin. Thanksfor writing that very helpful article.Many lawyers and their clients —including me and mine — will benefitfrom your helpful hints.

— Joe Judkins, Oak Ridge

LETTERS OF THE LAW

WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publicationon the basis of timeliness, taste, clarity and space. They should be typed and include theauthor’s name, address and phone number (for verification purposes). Please send yourcomments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058;EMAIL: [email protected].

article is ill-timed, as we are monthsaway from the next legislative session;however, there could be no better timefor you to be reading this article. Yourlegislators actually need to hear fromyou right now for two very importantreasons. The first is that they havemore time to sit down with you orcome to speak at your association’smeeting because they are not insession. The second is that you will befocusing on building a relationshipwith them, rather than lobbying themto take a particular position onpending legislation. By working tobuild relationships with your legisla-tors now, you are laying the ground-work that will place you in a positionto effectively advocate when the nextlegislative session begins.

Despite the information above, youmay still be a little unsure abouttaking that first step in developingrelationships with your legislators.You can rest easy as your association ishere to help. A new legislative effortthis year will focus on developing agrass-roots network of members toadvocate for our justice system. Tothat end, we have hired a publicpolicy coordinator to work withmembers on this very issue, alongwith many others.

As we all know, life is about rela-tionships, and those who influence usthe most are those with whom wehave built relationships of trust andrespect. Your legislators are nodifferent from the rest of us, so wecannot expect to be in a position toinfluence them on behalf of ourprofession if they do not know us, oronly hear from us when our hands areout. The time is now for our twelvethousand members to take the stepsnecessary to become a powerful voicefor our profession. Remember,Together We Make a Difference!

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

PRESIDENT continued from page 3


BRIEFS

Vanderbilt, American JudicatureSociety Join EffortsThe American Judicature Society (AJS)and Vanderbilt Law School announcedan affiliation agreement July 1 that,according to the groups, will result injoint educational programming, publica-tions and new research. In addition, AJSwill relocate from Des Moines, Iowa, tothe Vanderbilt campus in Nashville.Vanderbilt Law Dean Chris Guthrie saidthe partnership provides the opportu-nity to “strengthen ties to the bench andbar, conduct academic programming inareas of mutual interest, create neweducational and professional opportuni-ties for students, facilitate facultyresearch, and enhance the reach andreputation of the law school’s disputeresolution and criminal justiceprogram.” With the move to Tennessee,AJS executive director Seth Andersondecided to remain in Iowa so the group

is searching for a new director.

New Lawyers Sworn In Close to 200 attorneys successfullypassed the bar exam in February,and many took part in admissionceremonies at War Memorial Audi-torium in Nashville. Followingintroductions and administrationof the oath by Chief Justice GaryWade, the group heard remarks

from TBA President Jackie Dixon. Morethan 100 of them and their familiesattended an open house and luncheonat the Tennessee Bar Center before the ceremony.

YOU NEED TO KNOWNEWS

How to Fill the Seat Is the Question

Holder to Retire in 2014TennesseeSupreme CourtJustice Janice M.Holderannounced June26 that she willretire at the endof her currentterm and will notseek re-election

in the August 2014 judicial retentionelection.

Holder became the third woman toserve on the Tennessee Supreme Courtand the first to serve as chief justice. “Ithas been my privilege to serve thepeople of Tennessee as a trial judge andSupreme Court justice — and an honorto have been selected by my fellowjustices as the first female chief justicein our state’s history,” Justice Holder

said in a letter to Gov. Bill Haslam. Holder’s announcement came at a

time when changes in the selectionprocess for judges are both under wayand under consideration, complicatingand confusing procedures for filling herseat. The announcement came too latefor Tennessee’s Judicial NominatingCommission to suggest successorsbefore the commission’s legal authorityexpired June 30.

Gavel Grab reports that spokes-people for Gov. Bill Haslam and theAdministrative Office of the Courtshave expressed that it is unclear howJustice Holder’s seat will be filled.

Holder also recently was honored byher alma mater, the University of Pitts-burgh, for her leadership and dedica-tion to the legal needs of Tennesseansthroughout her career.

continued on page 6

In June, Legal Aid of East Tennesseehonored attorneys and firms thatdonated their time serving pro bonoclients over the past year. U.S. RepChuck Fleischmann received theChief Justice William M. BarkerEqual Access to Justice Award for hislifelong commitment to access tojustice. Chattanooga attorney MaxBahner (pictured here with TBA Pres-ident Cindy Wyrick) received theBruce C. Bailey Volunteer Lawyer ofthe Year Award. A third award waspresented to Miller & Martin PLLC,

which is being named the Pro BonoFirm of the Year for its strongsupport for Legal Aid of EastTennessee.

LAET Honors Lawyersfor Pro Bono Work

Max Bahner receives the Bruce C. Bailey Volunteer ofYear Award from Cindy Wyrick. Photo courtesy LAET.


NEWS continued from page 5

New Guide Clarifies Legal Info v. Legal AdviceNeed help determining when you aregiving legal advice and when it’s justlegal information? The Tennessee Accessto Justice Commission has developedguidelines to help. Originally intendedto provide assistance to court staff andattorneys assisting in self-help centers,the guidelines grew to become some-thing that anyone assisting self repre-sented litigants could use. TheTennessee Supreme Court has nowendorsed this policy, which the commis-sion’s Self-Represented Litigants Advi-sory Committee developed. Learn moreat www. justiceforalltn.com.

Judicial Vacancies, Cuts HaveSerious Impact on JusticeBrennon Center for Justice FellowAndrew Cohen writes that there aredozens of jurisdictions all across thenation that now operate under what are

known as “judicial emergencies” becauseof a lack of confirmed judges. Bydelaying the administration of justice, bythwarting the principles of finality andcertainty, judicial vacancies cause realharm both to the American people andto the free market, he writes.

Related, U.S. Supreme Court ChiefJustice John Roberts recently told agroup of federal judges that federalbudget cuts are having a different andmore severe impact on the courts thanother government agencies. “The cutshit us particularly hard because we aremade up of people. That is what thejudicial branch is. It is not like we arethe Pentagon where you can slow up aparticular procurement program. …When we have sustained cuts, thatmean[s] people have to be furloughed orworse and that has a more direct impacton the services that we can provide.”Gavel Grab reported on the remarks.

New Veterans Legal Corps SendsLawyers, Students to Legal AidLow-income and homeless veterans willbe getting legal help from a newprogram that deploys lawyers and lawstudents to legal aid groups and courtsacross the country, the ABA Journalreports. Equal Justice Works recentlyannounced the new Veterans LegalCorps, which is funded with moneyfrom AmeriCorps. The three-yearprogram will dispatch 36 lawyers and200 law students to groups across thecountry. The lawyers and law studentswill help veterans with disability bene-fits, barriers to housing and employ-ment, debt and family law problems.The first class of Veterans Legal Corpsmembers will begin work in Septemberand will serve for two years.

Access to Justice Videos NowInclude Closed Captioning The Tennessee Supreme Court’s Accessto Justice informational videos nowinclude closed captioning to make legalguidance accessible to even morepeople. The videos review topics for thegeneral public for civil cases in generalsessions courts, such as contractdisputes, debt, landlord issues and civilsuits under $25,000. See the videos atwww.justiceforalltn.com/videos

Pro Bono Down at Big Firms Despite healthyincreases inrevenues andprofits in 2012,The Am Law 200posted drops inboth total probono hours and average hours perlawyer for the second year in a row.There was some good news, however.After dropping 10.6 percent in 2011,The Am Law 200’s average percentage oflawyers performing at least 20 hours ofpro bono work rose 0.4 percent in 2012,to 44 percent.

A Different Kind of Summer CampTBA Public Education volunteers had the opportunity in July to work with students from across the state,helping them explore different aspects of the law and become more informed about educational and careerpaths they may want to pursue. The 20 students were participants at Law Camp, an annual event hosted byLipscomb 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 theevolution of the right to vote, from the 14th and 15th Amendments to the U.S. Constitution through currentSupreme Court decisions. Above, TBA Youth Court Coordinator Denise Bentley leads a discussion about thesignificant role of young activists in the Civil Rights movement. Photo by Elizabeth Slagle Todaro.

Find the links and

more details for

these stories at

tba.org/journal_links


Committees

ABA Resource CommitteeJonathan Cole, chair, Nashville

Access to Justice CommitteeAlex Mackay, chair, Nashville

CLE CommitteeRay Runyon, chair, Clarksville

Ethics and Professional ResponsibilityBrian S. Faughnan, chair, Memphis

Governmental Affairs CommitteeMatt Scanlan, chair, Nashville

Judicial Campaign Code of ConductCommitteeSam Elliott, chair, Chattanooga

Committee on the JudiciaryAl Harvey, chair, Memphis

Long-Range Planning Bill Harbison, chair, Nashville

Mentoring CommitteeChris Varner, chair, Chattanooga

Public Education CommitteeTasha Blakney, co-chair, KnoxvilleAngelia Nystrom, co-chair, Knoxville

Committee on Protection of the Publicfrom Unauthorized Practice of LawKevin Balkwill, chair, Nashville

Tennessee Bar Journal Editorial BoardAndrée S. Blumstein, chair, Nashville

TBA Leadership LawMary Dohner Smith, co-chair, NashvilleDarryl Gresham, co-chair, Memphis

Committee on Racial & Ethnic Diversity (CRED)Mary Beard, co-chair, MemphisMattielyn Williams, co-chair, Nashville

TBA Attorney Well Being CommitteeKay Caudle, Hendersonville

Sections/Divisons

Administrative LawChristy Allen, co-chair, NashvilleTom Stovall, co-chair, Nashville

Appellate PracticeAmy Farrar, chair, Murfreesboro

Bankruptcy LawMargaret Fugate, chair, Johnson City

Business LawDennis McClane, chair, Knoxville

Construction LawBeth Stengel, chair, Memphis

Corporate CounselBill Seale, chair, Knoxville

Creditors Practice SectionBill Shick, chair, Nashville

Criminal JusticeAndy Roskind, chair, Knoxville

Disability LawJanet Mynatt, chair, Oak Ridge

Dispute ResolutionJackie Kittrell, chair, Knoxville

Elder LawKing Self, chair, Memphis

Entertainment & Sports LawCasey Summar, chair, Nashville

Environmental LawCatherine Anglin, chair, Knoxville

Estate Planning & ProbateDonald Farinato, chair, Knoxville

Family Law Cathy Allshouse, chair, Chattanooga

Federal Practice Brent Young, chair, Johnson City

General Solo & Small Firm PractitionersAbi Salu, chair, Southaven, Miss.

Health Care LawAngela Youngberg, chair, Jackson

Immigration LawTerry Olsen, chair, Chattanooga

Intellectual PropertyHemant Gupta, chair, Memphis

Juvenile & Children’s Law SectionDaniel Bryant, chair, Clarksville

Labor & Employment Law Michael Ewing, chair, Nashville

Law Office Technology & ManagementMark Donahoe, chair, Jackson

LitigationMatt Curley, chair, Nashville

Real Estate LawBrooks Smith, chair, Nashville

Tax LawBrett Carter, chair, Nashville

Tort & Insurance PracticeStewart Stallings, chair, Nashville

TBASCUS (TBA Seasoned Counselors Up to Something)Marcia McMurray, chair, Chattanooga

Leaders Named for TBA Committees, SectionsIt takes a lot of people to run the Tennessee Bar Association’s many committees and sections. To learn more, find out how toget involved or contact the chair, go to www.tba.org/committees or www.tba.org/sections, or contact Programs AdministratorLynn Pointer or Assistant Committees and Sections Coordinator Christy Gibson at 800-899-6993.

Here is the leadership for the 2013-14 bar year:


INACTIVEDisability InactiveThe following lawyers were transferredto disability inactive status pursuant toSection 21 of Tennessee Supreme CourtRule 9. They may not practice law whileon disability inactive status but maypetition the Tennessee Supreme Courtfor reinstatement upon showing byclear and convincing evidence that thedisability has been removed and theyare fit to resume the practice of law.

Samuel Wilson Bartholomew Jr.,Nashville

Cindy Lynn Burgess, Napa, Calif.Robert David Strickland, Dyersburg

DISCIPLINARYCensuredKnox County lawyer Vanessa LynnLemons received a public censure onJune 21 for not appearing for courthearings or communicating with a clientshe was appointed to defend in severalcriminal cases. Lemons was removedfrom the case. She also failed to respondto a complaint of misconduct regardingher representation. The Board of Profes-sional Responsibility reports thatLemons is currently serving a four-yearsuspension imposed on Jan. 25. Theboard determined that her actionsviolated Rules of Professional Conduct1.1, 1.3, 1.4, 1.16 and 8.1.

Knox County lawyer Chadwick BarryTindell received a public censure fromthe Board of Professional Responsibilityon June 28 after pleading guilty to facili-tation of official misconduct. The convic-tion was based on Tindell’s involvementin the Knox County Trustee giving unau-

thorized bonuses to employees. Hisactions were determined to violate Ruleof Professional Conduct 8.4(b).

SuspendedOn June 14, the Supreme Court ofTennessee immediately and temporarilysuspended Gibson County lawyerGregory Wayne Minton from the prac-tice of law after finding that he failed torespond to the Board of ProfessionalResponsibility regarding a complaint ofmisconduct. The suspension remains ineffect until dissolution or modificationby the court.

Memphis lawyer Karen Wilson Tylerwas suspended on June 19 for one yearretroactive to April 5, 2012, when shewas temporarily suspended for failure torespond to a complaint. She also wasdirected to pay the Board of ProfessionalResponsibility’s costs in the matter. Thecomplaint filed against Tyler alleged thatshe failed to competently and diligentlyhandle the administration of an estate,failed to respond to a request for infor-mation from the board, and made astatement against the integrity of a chan-cellor. Her actions were determined toviolate Rules of Professional Conduct1.1, 1.3, 1.4(b), 1.16(c), 3.2, 3.4(c),8.1(b), 8.2(a)(1) and 8.4(d).

The Supreme Court of Tennesseeimmediately and temporarily suspendedMemphis lawyer Christopher LeeBrown from the practice of law on June21 after finding that he misappropriatedfunds for his own use and that hiscontinued practice of law posed a threatof substantial harm to the public. The

suspension remains in effect until disso-lution or modification by the court.

On June 25, Humphreys Countylawyer James Phillips Bradley wassuspended from the practice of law for 30days and ordered to attend an ethicsseminar. The Tennessee Supreme Courtfound that Bradley signed his client’sname to a petition in a child-endanger-ment matter and notarized the signature.He then filed the petition with the trialcourt and obtained an ex parte custodyorder. The trial court dismissed the peti-tion after learning that Bradley hadsigned the client’s name. Bradley self-reported his conduct, cooperated withthe Board of Professional Responsibilityand entered a conditional guilty pleaadmitting to the misconduct. The courtdetermined that his actions violated Rulesof Professional Conduct 3.3, 3.4 and 8.4.

YOU NEED TO KNOWLICENSURE & DISCIPLINE

Administrative Suspensions Now OnlineNotice of attorneys suspended for,and reinstated from, administrativeviolations — including failure topay the Board of ProfessionalResponsibility fee, file the IOLTAreport, comply with continuinglegal education requirements andpay the Tennessee professionalprivilege tax — is now availableexclusively on the TBA website.

Visit http://www.tba.org/directory-listing/administrative-suspension-lists to see adminis-trative suspensions imposedsince 2006.

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

continued on page 10


YOU NEED TO KNOWPEOPLE

The Knoxville law firmof Kennerly, Mont-gomery & Finley hasannounced thatJonathan H. Peyton isnow a shareholder inthe firm. Peytonreceived his law degreefrom Suffolk University in 2003, and islicensed to practice in Kentucky, NewYork and Tennessee. Peyton focuses hispractice in the areas of real estate devel-opment and lending, corporate andbusiness law and commercial law.

Chattanooga lawyerScott M. Shaw hasjoined the law firm ofEvans Harrison Hackettas a member. He prac-tices in the areas of liti-gation, bankruptcy, real

estate, banking and business. Shawobtained his law degree from GeorgiaState University in 1997 and is licensedto practice in Tennessee and Georgia. Hewas a member of the 2007 TBA Leader-ship Law class.

Patrick “Brock” Parks has joined theNashville law firm of Griffith & Robertswhere he will practice in the areas ofcriminal defense, family law and therepresentation of law enforcement offi-cers in administrative and tort actions.Brock, who is a former Metro NashvillePolice officer, graduated from theNashville School of Law in 2000. Hepreviously worked with Hall BoothSmith, handling litigation involvingrestaurants, hotel chains and lawenforcement officers.

Wimberly Lawson Wright Daves &Jones recently announced it has joinedwith Bob E. Lype of Bob E. Lype &Associates to establish an office in Chat-

tanooga. Lype will serveas of counsel for thefirm and will continuehandling labor andemployment law,commercial litigationand insurance defense.He graduated from the University ofTennessee College of Law in 1990 andestablished his firm in 2003.

Chattanooga attorneyMarcy Eason withMiller & Martin hasbeen selected to serve atwo-year term as a dele-gate to Vision 2020, anationwide initiative

focused on women’s economic and socialequality. Vision 2020 is a coalition oforganizations and individuals launched in2010 through the Institute for Women’sHealth and Leadership at Drexel Univer-sity College of Medicine. Delegates areselected based on demonstrated commit-ment to helping women or girls.

The Franklin law firm of Buerger,Moseley & Carson recently announcedthat W. Kyle Simonton has been named amember of the firm. Simonton focuses hispractice in the area of health care opera-tions. He is a 2007 graduate of theSouthern Illinois University School of Law.

The Tennessee Justice Center hasannounced that managing attorneyMichele Johnson will succeed GordonBonnyman as executive director of theorganization at the end of the year.Bonnyman and Johnson co-founded thecenter 17 years ago to advocate forTennessee’s vulnerable populations,particularly those struggling to findaccess to health care. Bonnyman willcontinue to serve clients as a staffattorney. Johnson earned her law degree

in 1994 from the University ofTennessee College of Law.

Former Tennessee state senator MikeFaulk has been appointed Third JudicialDistrict Circuit Court judge. A Kingsportnative, he will preside over cases inHawkins, Hamblen, Hancock and Greenecounties. Faulk earned a master of publicadministration from the University ofMemphis in 1978 and a law degree fromthe school in 1979. He is a past presidentof the Hawkins County Bar Association,Juvenile Court referee and vice chair ofthe Tennessee Human Rights Commis-sion. He has operated a solo law practicesince 1996 and represented the FourthDistrict of Tennessee in the state Senatefor four years.

James R. Sasser, former U.S. senatorfrom Tennessee and ambassador toChina, and his wife, Mary, have donatedtheir papers to Vanderbilt University.Sasser completed his undergraduatestudies at Vanderbilt and earned his lawdegree there in 1961. The donationcontains photographs and other memo-rabilia from Sasser’s years in the Senate— including the gavel he used whilechairing the Budget Committee — andhis time in China, where he forged closerelationships with national leaders. He isa senior counselor of the TBA.

St. Louis, Mo.,lawyer Robert D.Pickle was inductedinto the Knoxville EastHigh School Hall ofFame on June 8 at cere-monies at the World’s Fair Park inKnoxville. Pickle, a 1961 graduate of theUniversity of Tennessee College of Law,practices with The Pickle Law Firm. Heis a senior counselor of the TBA.

Shaw

Lype

Eason

Peyton

continued on page 10

Pickle


The Tennessee BarAssociaiton has hired anew CLE Coordinator,Lauren Hopper Lee,who replaces LisaMcNamara. Lee holdsbachelor’s and master’s

degrees in Social Work from TSU. Mostrecently she worked with volunteers inher staff role at St. Luke’s CommunityHouse working with families in WestNashville. She has also interned at theTennessee General Assembly.

Tennessee First Lady Crissy Haslamhas named Nashville lawyer RachelLundeen as her new chief of staff.Lundeen has been a member of the staffsince 2011, serving as special assistantand policy advisor to the first lady. Priorto joining the Haslam administration,she worked at the Children’s RightsAlliance in Dublin, Ireland, and theChild Welfare League of America.Lundeen earned her law degree and amaster degree in public policy fromVanderbilt University.

Legal Aid of East Tennessee recentlyhonored Chattanooga attorney MaxBahner of Chambliss, Bahner &Stophel with its Bruce C. Bailey Volun-teer Lawyer of the Year Award for hiswork on two significant pro bonocases. It also honored the Chattanoogaoffice of Miller & Martin as its ProBono Firm of the Year for its support ofpro bono activities.

The Tennessee Lawyers’ Association forWomen installed new officers during itsannual meeting in Nashville. Taking officeas president was Wendy Longmire, anattorney with Ortale, Kelley, Herbert &Crawford in Nashville. She succeeds Kristi

Rezabek of Jackson. Other leaders installedwere Vice-President Cheryl Rice ofKnoxville, Treasurer Linda Knight ofNashville, Recording Secretary AhsakiBaptist of Memphis, Corresponding Secre-tary Beth Bates of Jackson, West TennesseeDirector Lanis Karnes of Jackson, MiddleTennessee Director Amy Everhart ofNashville and East Tennessee Director JudyCornett of Knoxville.

Chancellor Jerri S. Bryant of the10th Judicial District took office as pres-ident of the Tennessee Judicial Confer-ence at the group’s annual meeting inJune. She succeeds Circuit Court JudgeRobert L. Holloway Jr. of Columbia. Inher new role, Bryant also will serve onthe TBA Board of Governors. She is a1987 graduate of the University ofTennessee College of Law and has servedas chancellor since 1998.

A new book co-authored by Nashvilleattorney and trialconsultant Phillip H.Miller looks at strate-gies and techniques fordelivering case-winningdepositions. The book, Advanced Deposi-tion Strategy and Practice, is availablethrough Trial Guides Publishing and theAmerican Association for Justice.

Knoxville lawyer Deborah Stevenswas sworn into office as Knox CountyCircuit Court Judge by Gov. Bill Haslam.Stevens, who has practiced law for morethan 30 years, previously was managingattorney at Lewis, King, Krieg &Waldrop. She graduated from theUniversity of Tennessee College of Lawin 1980.

PEOPLE continued from page 9

LICENSURE & DISCIPLINE continued from page 8

Williamson County lawyer ThomasHolland McKinnie Jr. was suspendedby the Tennessee Supreme Court for twoyears on June 28. McKinnie submitted aconditional guilty plea that he violatedcourt rules by (1) knowingly writinghimself a check from his trust accountthat created an overdraft, (2) failing toaccount for a portion of the money thathe paid himself and (3) not adequatelyresponding to requests from the Boardof Professional Responsibility. The courtdetermined that his actions violatedRules of Professional Conduct 1.15,8.1(b) and 8.4(a).

DisbarredThe Tennessee Supreme Court on May21 disbarred former Memphis lawyer

William T. Winchester and ordered himto pay restitution to five clients. SinceAugust 2011, Winchester has beenserving a two-year suspension in anothercase of misconduct. He also wassuspended in 2010 for failure to pay hisprofessional privilege tax and in 2011 forfailing to comply with continuing legaleducation requirements. The latest actionwas taken in response to 10 complaintsof ethical misconduct alleging lack ofdiligence, lack of communication, incom-petent representation, abandoning a lawpractice, and misrepresentations toclients, other lawyers and the Board ofProfessional Responsibility. The courtfound that his actions violated Rules ofProfessional Conduct 1.3, 1.4, 1.5, 1.15,1.16, 8.1 and 8.4.

Miller

Compiled by Linda Murphy and Stacey Shrader Joslin Tennessee Bar Association members may send information about job changes, awards and work-relatednews. 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.

Lee


PassagesMacon County attorney FLETCHER “KEITH”ADKINSON died June 19 at the age of 69. A 1969 grad-uate of the University of Virginia School of Law, Adkinsonrepresented corporations and entertainers in Beverly Hillsand later in Washington, D.C. From 1974 to 1979, he wascounsel to the U.S. Senate Permanent Subcommittee onInvestigations where he managed probes into organizedcrime, labor racketeering and government corruption.Adkinson was national director of Democrats forReagan/Bush in 1980 and after the election, served on theDepartment of Justice Transition Team. Later, in privatepractice, he took on a case to prove Jett Williams was thedaughter of Hank Williams. He married her in 1986 andthe couple lived for many years in Lafayette. He died whileundergoing heart surgery at Vanderbilt Medical Center.

Retired Lebanon Judge RODNEY VICTOR AHLES diedfrom a stroke on June 30. He was 82. Ahles was appointedcity judge for Lebanon in 1970, serving for almost fourdecades on the bench. He received a bachelor of law fromCumberland University and his law degree from SamfordUniversity. Ahles entered private practice in 1967 and, aspart of his practice, drafted legislation for the State ofTennessee Legislative Council during five sessions of theGeneral Assembly. He retired from the bench in 2005. Inlieu of flowers, memorial contributions may be sent to FirstPresbyterian Church, 304 W Main St., Lebanon, TN 37087.

Chattanooga attorney RALPH RUSSELL ARMSTRONGdied June 8 at the age of 83. Armstrong earned his lawdegree from the University of Tennessee. He served in theU.S. Naval Reserve and Army ROTC, and was a member ofthe Hamilton County Bar Association. In lieu of flowers, thefamily requests donations be made to St. Jude Children’sResearch Hospital, P.O. Box 2151, 501 St. Jude Place,Memphis, TN 38101.

Memphis lawyer LUNDY WEBB DANIEL died June 23at the age of 76 from metastatic melanoma. A native ofMississippi, Lundy moved to Memphis in 1964 and earnedhis law degree from the University of Memphis School ofLaw in 1968. As principal at the Daniel Law Firm in down-town Memphis, Daniel represented clients in the areas ofpersonal injury, workers’ compensation, medical malprac-tice, family law, wrongful death and criminal misde-meanors. He also was active in the Downtown MemphisKiwanis Club. The family requests that memorial donationsbe sent to Senatobia First Baptist Church, 317 S. Ward,Senatobia, MS 38668.

Nashville lawyer DAVID BRUCE LYONS died June 27 at61. Lyons grew up in Lindenhurst, N.Y., but moved toTennessee and attended the University of Tennessee. Heworked for the Knoxville News Sentinel in the early 1980s asthe state capitol correspondent. He later attended theNashville School of Law at night. Lyons earned his lawdegree in 1994 and began practicing in the areas of juvenileand family law, civil rights, general civil litigation, and tortand personal injury cases. Lyons was a strong supporter andboard member of 202 Friendship House, an alcohol recoverycenter. In lieu of flowers, the family asks that donations bemade to 202 Friendship House, 202 23rd Ave. N., Nashville,TN 37203.

Chattanooga lawyer and former TBAPresident CHARLES J. GEARHISER diedJune 17 at the age of 74. A 1961 graduate ofthe University of Tennessee College of Law,Gearhiser was an original founder of thefirm of Gearhiser, Peters, Elliott & Cannon,where he practiced until his death. Early in

his career, Gearhiser was law clerk to U.S. District JudgeFrank W. Wilson and served in that position during thehistoric Jimmy Hoffa trial in 1964. He also served as anassistant U.S. attorney in the Eastern District of Tennessee,and then as a part-time U.S. magistrate. While in privatepractice, Gearhiser made a name for himself as a prolific liti-gator, trying more than 100 cases before Tennessee juries.His areas of expertise included federal criminal defense,professional liability defense, and product liability, personalinjury, commercial and business cases. Gearhiser alsoworked to improve the profession, serving as president ofthe Chattanooga Bar Association, chair of the ChattanoogaBar Foundation, member of the Judicial PerformanceProgram Committee and charter member of the Tennesseechapter of the American Board of Trial Advocates. He servedas president of the TBA from 2001-2002 after serving on theassociation’s board of governors from 1999 to 2001 and in1992 and 1994. In lieu of flowers, donations may be madeto the Alzheimer’s Association in honor of Gearhiser’s latewife, Joy. Donations may be sent to 7625 Hamilton Park Dr.,Suite 22, Chattanooga, TN 37421.

Memphis lawyer G. DONALD SIEMER died June 13 atthe age of 81. Originally from Philadelphia, Siemer servedthe Shelby County community as an assistant districtattorney and public defender. He also was instrumental inestablishing Shelby County’s Environmental Court and DrugCourt. In lieu of flowers, the family requests that donationsbe sent to Cherokee Baptist Church, 5340 Quince at Estate,Memphis, TN 38119.

Gearhiser

IntentionalMisrepresentation

of Paternity

COVER STORY

The 2012 Tennessee Supreme Court decision of Hodge v. Craig is a

case of potential importance primarily to family law practitioners, and

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

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

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By Lacy A. Daniel

12 | TENNESSEEB A RJOURNAL AUGUST2 0 1 3

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Furthermore, the Supreme Court deter-mined that Mr. Craig’s damages award forintentional misrepresentation was not aprohibited retroactive modification ofchild support.4

“The primary holding of Hodge v.Craig is that a putative father may main-tain an action for intentional misrepre-sentation based upon a mother’s falsestatements as to the paternity of a child.A large portion of the opinion is devotedto a discussion of public policysurrounding that question.”5 Ultimatelythe Hodge v. Craig court “determinedthat public policy does not prevent theformer spouse of a child’s mother frompursuing a common-law damage claimbased on her misrepresentationsregarding the identity of the child’sbiological father.”6

This case involved Chad Craig andTina Marie Hodge, a couple who becameinvolved in an intimate relationshipwhen they were both 16 years old andjuniors at Mt. Pleasant High School.7

They were married on December 20,1991, after Ms. Hodge became pregnantand after she assured Mr. Craig that thechild could only be his child. Kyle Chan-dler Craig was born on June 11, 1992.

Mr. Craig and Ms. Hodge divorced inFebruary 2001. Initially, Mr. Craig andMs. Hodge shared joint custody of Kyle,with Ms. Hodge designated as theprimary residential parent, and Mr.Craig paying child support to Ms.Hodge. In 2005, Mr. Craig assumed therole of primary residential parent forKyle, and Ms. Hodge paid child supportto Mr. Craig.

In February 2007, Mr. Craigconfirmed (through a DNA test) hisrecently raised suspicions that he wasnot 15-year-old Kyle’s biological father.Mr. Craig told Ms. Hodge about the testresult. After initially telling Mr. Craig thathe was “crazy,” Ms. Hodge told Kyle thatMr. Craig was not his biological father.8

Mr. Craig expressed his desire tomaintain their relationship as before, but“Kyle told him that ‘it’s not the samenow’ and that he wanted to live with Ms.Hodge.”9 Kyle and Mr. Craig had littlecontact after Kyle learned the news. In

July 2007, the trial court entered anorder granting Ms. Hodge’s request forcustody of Kyle and terminating her obli-gation to pay child support to Mr. Craig.

In February 2008, Mr. Craig sued Ms.Hodge based on intentional and/or negli-gent misrepresentation, alleging that“Ms. Hodge told him that she was surethat the baby [Kyle] was his and that ‘thebaby could be no one else’s’ when sheknew or should have known that he wasnot the child’s biological father.”10

The trial court found that “Ms. Hodge‘purposely defrauded [Mr. Craig] intobelieving Kyle was his child, knowingshe had sexual relations with Joey Hay atthe time and a count of one’s fingerswould have revealed Joey Hay could bethe father.’”11 For damages suffered as aresult of Ms. Hodge’s fraud, intentionalmisrepresentation, and negligent misrep-resentation, the trial court awarded Mr.Craig “$23,030.24, ‘representing thetotal child support paid,’ … $2,214.20,‘representing medical expenses andinsurance premiums paid,’ … $1,181.75‘for TRH Health Plans,’ … $100,000 ‘forthe emotional distress suffered’ and$8,451.71 in attorney’s fees.”12

On appeal, the Court of Appealsupheld the trial court’s finding of inten-tional misrepresentation, but “reversedthe damage award for child support,medical expenses, and insurancepremiums because it amounted toretroactive modification of the earlierchild support order.”13 The appellatecourt also reversed the $100,000emotional distress award, concludingthat noneconomic damages were notappropriate in a misrepresentationclaim.14 Since it had reversed allcompensatory damages, the courtvacated the award of attorney’s fees.

Mr. Craig appealed to the TennesseeSupreme Court, raising two issues.15

First, “whether Ms. Hodge’s representa-tions regarding the paternity of her soncan support a claim of common-lawfraud, intentional misrepresentation, ornegligent misrepresentation.”16 Second,“whether a damage award derived fromMr. Craig’s post-divorce payments ofchild support, medical expenses, and

medical insurance premiums is animpermissible retroactive modificationof a child support order.”17

Domestic TortsAt first glance, this case may not seemthat significant to a family law practi-tioner. Domestic torts are not uncommonin Tennessee, as spousal tort immunitywas abolished in 1983.18 Tennesseecourts have recognized various domestictort actions relating to misrepresentation,including (1) a suit by an ex-husbandagainst his ex-wife for fraud in misrepre-senting the value of the marital home,19

(2) an ex-wife suing ex-husband forfraud, deceit, and coercion in executingtheir Marital Dissolution Agreement,20 (3)ex-wife’s suit against ex-husband and hisemployer for fraud and conspiracy inconcealing ex-husband’s earnings,21 (4)negligent transmission of a venerealdisease,22 and (5) the right to bring aclaim for misrepresentation concerningcontraception.23 These cases involvedisputes between adults and do notimplicate a child’s interests.

Perhaps what is different in the inten-tional misrepresentation of paternity tortthat the Tennessee Supreme Courtrecognized in Hodge v. Craig, is that thechild’s well-being must be balancedagainst the interests of the parties, i.e.,the State of Tennessee and the parents.

Policy Issues“Paternity fraud is not a modernconcept — it is probably as old as pater-nity itself. In the days of the commonlaw, British lawmakers addressed theissue despite the lack of modern tech-nology and genetic testing. One of theoldest British laws [dating back to1576] concerning paternity was titled,‘Acte for the setting of the Poore onWorke, and for the avoyding of Ydle-ness.’”24 Simply stated, “[p]aternityfraud occurs when a mother makes arepresentation to a man that the child isgenetically his own even though she isaware that he is not, or may not be, thefather of the child.”25

Paternity laws seek to balance theContinued on page 14

AUGUST2 0 1 3 T ENNESSEEB A RJOURNAL | 13


rights of the child with those of theputative father, the biological father, themother, and the state.26 In a 2007 Note,Stephen Sherman argues that “courtsmust reach a middle ground betweenthe harsh presumption of paternity andthe lax modern rules that allow suits tobe pursued at almost any time after thebirth of the child.”27 Sherman advocatesan 18-month statute of limitations inwhich a putative father could file suitwithout negatively affecting the child’s“social and mental well-being.”28

Tennessee Paternity IssuesBefore ‘Hodge v. Craig’In a 2005 opinion, the TennesseeSupreme Court briefly summarized therecent history of Tennessee paternitylaws enacted in response to evolvingpublic policy.

In 1997, the Tennessee GeneralAssembly completely overhauled thestatutes concerning paternity andlegitimation. See 1997 Tenn. Pub.Acts ch. 477. The primary purpose ofthis change was to streamline and tosimplify the formerly separate causesof action for paternity and legitima-tion by combining them into a singleparentage action. See Tenn. Code Ann.§§ 36–2–101 to –115 (1996) (pater-nity) and §§ 36–2–201 to –210(1996) (legitimation), repealed by1997 Tenn. Pub. Acts ch. 477 (codi-fied at Tenn. Code Ann. §§ 36–2–301to –322 (2001)); Tape H–C & FA # 1(Tennessee House of RepresentativesChildren and Family AffairsCommittee March 26, 1997) (“Thisbill is an effort to try to revise ourstatutes and bring us into the 20thcentury and develop one system fordetermining and establishing theparentage of children born out ofwedlock.”) (statement of Rep. KimMcMillan). The 1997 legislation wasalso designed to correct a particularconstitutional infirmity of the priorstatutes.29

As the Hodge v. Craig court explained,

Two provisions in the 1997 Actand in a 1998 amendment to the Actreflect the General Assembly’s aware-ness of the existence of actions torebut or disestablish paternity andthe possibility that a person foundnot to be a child’s biological fathercould pursue a claim for damagesagainst the child’s biological parents.Tenn. Code Ann. § 36–2–304(b)(3),enacted in 1998, states that “[t]hestandard of proof in an action torebut paternity shall be by prepon-derance of the evidence.” Similarly,Tenn. Code Ann. § 36–2–309(b) states,in part, that “[n]othing in this subsec-tion (b) shall preclude the issuance ofa judgment against the mother oractual biological father of the child orchildren in favor of the person subse-quently found not to be the father ofthe child or children.”30

Steioff v. Steioff in 1992, Granderson v.Hicks in 1998, State ex rel. Taylor v.Wilson in 2005, Ex rel. Kimbrough v.Hales in 2012, and Ex rel. Russell v. W. in2003 all serve to illustrate how thenecessary balancing of interests in pater-nity cases has played out in Tennesseecourts prior to Hodge v. Craig.

In Steioff v. Steioff, the appellate courtruled that eight years was not a reason-able time within which to raise the issueof paternity.31 The parties divorced in1983, and the court awarded custody ofthe parties’ minor child to the motherand ordered the ex-husband to pay $25

per week in child support.32 Ex-husbandpaid the child support for a brief period,but in 1990, the District AttorneyGeneral filed a contempt petition onbehalf of the mother alleging ex-husband owed $10,500.33 Ex-husbandsought relief from the 1983 decreepursuant to Rule 60.02 of the TennesseeRules of Civil Procedure alleging that thechild was not his child and requesting ablood test, pursuant to Tenn. Code Ann.section 24-7-112.34 Ex-husband claimedthat he learned after the divorce from“outside sources” that the child was nothis child.35 The Court of Appeals upheldthe trial court’s denial of ex-husband’sRule 60.02 motion and blood testrequest, finding that eight years was toolate to raise the issue.36

In Granderson v. Hicks, an unreporteddecision, the Court of Appeals foundthat the trial court erred by dismissingthe putative father’s allegation of fraud bythe child’s mother in obtaining a volun-tary acknowledgement of paternity fromhim.37 The appellate court noted that:

Tenn. Code Ann. § 24-7-118(e)(2)requires the trial court to conduct ahearing in cases in which the putativefather alleges fraud in the procure-ment of the voluntary acknowledg-ment of paternity. After the hearing, ifthe trial court finds “a substantiallikelihood” of fraud “in the executionof the acknowledgment of paternity,”it must order parentage tests, even ifthe relief is requested after the five-year statute of limitations has lapsed,provided the trial court also finds thatthis relief “will not affect the interestof the child, the state, or any Title IV-D agency.”38

In State ex rel. Taylor v. Wilson,another unreported case, the appellatecourt reversed the juvenile court’sdismissal of the father’s Tennessee Ruleof Civil Procedure 60.02 request forrelief from his voluntary legitimation(based on mutual mistake) of one of twochildren and the related custody,parentage and support orders.39 Afterentry of the orders, the father learnedthat he was not the biological father of

Paternity continued from page 13

“Hodge v. Craig is signifi-cant for recognizing the

right of a putative father tobring an action for inten-tional misrepresentationbased upon a mother’s

false statements as to thepaternity of a child.”

one of the children he had originallyacknowledged as his child.40 In grantingprospective relief to the father, the courtanalyzed the “burdens that grantingrelief or failing to grant relief will placeon all who have an interest in theproceeding,” i.e., the father, mother,child, and State.41

Tennessee, like other states, as notedby the Hodge v. Craig court,42 has setaside paternity adjudications where themother misrepresented the identity ofthe child’s biological father.43 Forexample, on July 25, 2012, in Ex rel.Kimbrough v. Hales, the Tennessee Courtof Appeals found, in an unreported case,that the paternity provision in thedivorce decree, declaring Mr. Hales notto be the father of the child his ex-wife,Ms. Kimbrough, was carrying at the timeof the divorce, void as against publicpolicy.44 Mr. Hales and Ms. Kimbroughwere married Oct. 25, 1990, and Mr.Hales was granted a divorce based oninappropriate marital conduct on May28, 1991.45 In 2010, relying on a 2009DNA Test report indicating a 99.999998percent probability that Mr. Hale wasthe biological father of the child, theState moved to establish the ex-husband’s paternity and for Rule 60.02relief.46 The trial court found the 1991paternity determination res judicata anddenied the Rule 60.02 motion.47 Theappellate court found the paternityprovisions of the divorce decree void asagainst the public policy that a child notbe illegitimated, or denied support by anatural or adoptive parent, by writtenagreement or court order.48

Conversely, in an earlier 2003 case, Exrel. Russell v. W. the appellate court foundthat the paternity dispute was raised toolate.49 The father was aware early on thathe might not be the father, and thus, thecourt concluded that he waived the issueand the matter was res judicata.

Recognizing the Tort of IntentionalMisrepresentation of PaternityIn Hodge v. Craig, the court consideredthese competing family, individual, and

Continued on page 16


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state interests, noting that the “legisla-tive process provides the most appro-priate forum within which to balancethese competing interests,”50 but findingthat the Tennessee “General Assemblyhas not directly addressed the issues orinterests implicated in this case.”51

The court acknowledged its authorityto act within the public policy parame-ters of the State of Tennessee to continuedeveloping the common law of domestictorts.52 The court noted that “misrepre-sentations to a prospective spouse thathe is an unborn child’s biological father‘[go] to the essence of the marital rela-tionship.’”53 Finding no public policyfavoring or opposing the claim orremedy sought, the court determinedthat a “former spouse of a child’smother”54 may pursue an “intentionalmisrepresentation”55 claim, but not anegligent misrepresentation56 claim,“against the child’s mother for her …misrepresentations regarding the iden-tity of the child’s biological father.”57

The court’s recognition of an inten-tional misrepresentation tort claim inHodge v. Craig rested on Tennessee law,but the court found similar situations inother states.58 Five other states recognizesimilar claims for fraud or intentionalmisrepresentation by the putative fatheragainst the mother based on her misrep-resentations regarding the child’s biolog-ical father.59 Additionally, New Jerseyrecognized a claim by the putative fatheragainst the biological father.60 The courtnoted several examples of states thatfound a basis to set aside a paternityadjudication where the mother misrep-resented the identity of the child’sbiological father.61

The court outlined the elements ofintentional misrepresentation as follows:

[A] plaintiff must prove: (1) thatthe defendant made a representationof a present or past fact; (2) that therepresentation was false when it wasmade; (3) that the representationinvolved a material fact; (4) that thedefendant either knew that the repre-sentation was false or did not believe

it to be true or that the defendantmade the representation recklesslywithout knowing whether it was trueor false; (5) that the plaintiff did notknow that the representation wasfalse when made and was justified inrelying on the truth of the representa-tion; and (6) that the plaintiffsustained damages as a result of therepresentation.62

The measure of damages for a non-business intentional misrepresentationclaim is:

The recipient of [an intentional]

misrepresentation is entitled torecover as damages in an action ofdeceit against the maker the pecu-niary loss to him of which the misrep-resentation is a legal cause, including(a) the difference between the value ofwhat he has received in [the] transac-tion and its purchase price or othervalue given for it; and (b) pecuniaryloss suffered otherwise as a conse-quence of the recipient’s reliance uponthe misrepresentation.63

The Hodge v. Craig court found thatthe record supported the trial and appel-late courts’ conclusions that Mr. Craigpresented sufficient evidence to provehis claim of intentional misrepresenta-tion against Ms. Hodge.64 Ms. Hodge,recklessly without knowing whether itwas true, told Mr. Craig that no one else

could be the child’s father.65 Her state-ment was false when made and Ms.Hodge knew she had had sex withanother man besides Mr. Craig.66 Mr.Craig justifiably relied on her represen-tation and married her believing that shewas carrying his child.67 Mr. Craigsuffered monetary damages, includinghis payment of child support, medicalexpenses, and insurance premiums.68

The Tennessee Supreme Court deter-mined that Mr. Craig’s damage awardwas “not a retroactive modification of achild support obligation” nor did it makechanges in his child support obligationin contravention of Tenn. Code Ann.section 36-5-101(f)(1).69 The award didnot reduce or extinguish any childsupport owed by Mr. Craig because hewas under no obligation to pay supportwhen the judgment was entered and hedid not owe any child supportarrearage.70 The court found that the“trial court did not err by ascertainingthe amount of this pecuniary loss byconsidering the amount of child support,medical expenses, and insurancepremiums Mr. Craig had paid on Kyle’sbehalf following the parties’ divorce.”71

What Questions Does ‘Hodge v. Craig’ Settle?Hodge v. Craig is limited to the specificfactual circumstances of the case, “alawsuit filed by the former spouse of achild’s biological mother seekingdamages for intentional misrepresenta-tion of the child’s parentage.”72

Hodge v. Craig does not change thestatutory prohibition against retroactiveapplication of child support modifica-tions. The Court of Appeals waited tohear the Supreme Court’s decision inHodge before reaching a decision inChristopher A. D. as discussed below.

We conclude that the holdings inHodge do not affect the application ofthe statute prohibiting retroactivemodification of child support to thecase before us. Hodge involved aclaim for misrepresentation and arequest for damages caused by thatmisrepresentation. That is not thesituation herein. The action in this


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appeal was initiated by a petition tomodify support that specifically askedthe court “to modify child supportretroactively.”73

…The case before us does not

involve a claim of misrepresentationof parentage. It is undisputed thatFather is the father. Instead, it allegesa misrepresentation of income byFather in a hearing regarding theappropriate amount of childsupport.74

…A child support order is not

subject to challenge based on equi-table defenses such as fraud, becauseto do so would “defeat the verypurpose of the amendment.”Rutledge, 802 S.W.2d at 607. Conse-quently, we must hold that the Juve-nile Court in the instant case lackedthe authority to modify Father’ssupport obligation for any time priorto Mother’s filing of her petition onOct. 22, 2008.75

The implication of the court’s rulingin Christopher A. D. is that in this typeof situation, where there is fraudulentmisrepresentation, an action fordamages should be brought, not anaction for retroaction modification ofchild support.

In January 2013, the Court of Appealsin Madilene G.R. considered Hodge v.Craig for the “complex legal and moralissues that arise out of disputed paternityactions where, as in [Madilene G.R.],paternity was uncertain during two veryrelevant time frames that are at issue, and[] recognize[d], as the Supreme Courtdid, that such cases implicate the inter-ests of family, a putative biological father,the child, the prospective adoptiveparents and the public policy of the Stateof Tennessee. This is because ‘[c]asesbased on a mother’s [representations or]misrepresentations regarding the identityof a child’s biological father present diffi-cult and intractable problems that are‘much more complicated than a bad girl,good guy scenario.’”76

In Madilene G.R. “an unmarried man

is told by an unmarried woman withwhom he recently had sexual relationsthat he is the father of her unborn child,yet the man is so skeptical, that herefuses to renew a relationship with theexpectant mother and refuses to providepre-natal support.”77 “The biologicalfather of the child at issue appeals thetermination of his parental rights andthe dismissal of Father and Step–Mother’s petition for custody andcounter-petition for stepparent adop-tion.”78 Madilene G.R. is not a casealleging paternity fraud, but its examina-tion of Hodge v. Craig indicates that theHodge v. Craig decision may also providea useful reference point regarding themultiple interests and the complex legaland moral issues in a paternity dispute.

What Questions Does ‘Hodge v. Craig’ Leave Open?The Hodge v. Craig court noted that itwas not required to address whether themeasure of damages in this case wascorrect.79 Mr. Craig did not take issuewith the Court of Appeals vacating his$100,000 award for intentional inflic-tion of emotional distress.80 Further-more, Ms. Hodge did not object tousing child support, medical expenses,and insurance premiums as the measureof damages.81

The court very specifically limited itsholding:

Our decision in this case is limitedto the factual circumstances before us— a lawsuit filed by the formerspouse of a child’s biological motherseeking damages for intentionalmisrepresentation of the child’sparentage. This case does not requireus to address other circumstances,including similar disputes betweenpersons who were never married orpersons who are separated but notdivorced. Determining the appropri-ateness of actions for intentionalmisrepresentation of parentage inthese and other circumstances can bemade only in the appropriate case.82

Our holding is limited to the circum-stances in the record showing, without

dispute, that at all times during thisproceeding, Mr. Craig did not owe backchild support to Ms. Hodge. Nothing inthis opinion should be construed aspreventing others who owe back childsupport from filing an intentionalmisrepresentation claim similar to theone filed by Mr. Craig in this case. If aparty owing back child support prevails,the trial court, rather than forgiving thepast due child support, will be requiredto offset the judgment by the amount ofthe past due child support owed at thetime suit was filed.83

ConclusionHodge v. Craig is significant for recog-nizing the right of a putative father tobring an action for intentional misrepre-sentation based upon a mother’s falsestatements as to the paternity of a child.Ultimately, the cases that follow willdevelop a clearer outline of the bound-aries of this tort. Additionally, the courtclarified general future use of the term“intentional misrepresentation” todescribe this sort of tort (beyond thecontext of paternity), rather than “fraud”or “fraudulent misrepresentation.”

LACY A. DANIEL isemployed as a law clerkand court officer in theWilliamson County courtsof the 21st Judicial District.She served as an editor ofthe Natural Resources

Journal and earned a certificate in naturalresources law, along with her law degree fromthe University of New Mexico School of Law in2011. She returned to her home state ofTennessee to begin her law practice. Danieldeveloped this article with support and advicefrom Judge James G. Martin III, of the 21st Judi-cial District. Judge Martin presented an earlierdraft of the article (titled “Paternity Fraud”) onApril 4, 2013, at the Domestic Law Forum of theTennessee Association for Justice.

Notes1. Hodge v. Craig, 382 S.W.3d 325 (2012).

2. Id. at 342-43.

3. Id. at 342-44.

4. Id. at 346-48.




5. In re Christopher A. D., M2010-01385-

COA-R3-JV, 2012 WL 5873571, at *5 (Tenn. Ct.

App. Nov. 20, 2012).

6. Hodge v. Craig, 382 S.W.3d at 342.

7. Id. at 330.

8. Id.

9. Id.

10. Id. at 332 (alteration in original).

11. Id. (alteration in original).

12. Id.

13. Id. at 333 (citing Hodge v. Craig, No.

M2009-00930-COA-R3-CV, 2010 WL 4024990

(Tenn. Ct. App. Oct. 13, 2010)).

14. Id. at 333.

15. Id. at 336.

16. Id.

17. Id.

18. Davis v. Davis, 657 S.W.2d 753, 759

(Tenn. 1983).

19. Moore v. Moore, 01-A-01-9708-CV00444,

1998 WL 848091 (Tenn. Ct. App. Dec. 8, 1998)

(reversing the circuit court’s decision that ex-

husband’s chancery action was frivolous, and

clarifying that ex-husband’s chancery court case

was a fraud action seeking damages, not an

action seeking relief from the circuit court

divorce decree judgment).

20. Black v. Black, 166 S.W.3d 699 (Tenn.

2005) (affirming the appellate court and

concluding that ex-wife failed to allege sufficient

facts to either set aside the final divorce decree

under Rule 60.02 (as an extrinsic fraud claim) or

as a tort action for fraud or coercion).

21. Brown v. Birman Managed Care Inc., 42

S.W.3d 62 (Tenn. 2001) (affirming the appellate

court decision that ex-husband and his employer

are not entitled to summary judgment on ex-

wife’s fraud and conspiracy to defraud claims).

22. Hamblen v. Davidson, 50 S.W.3d 433

(Tenn. Ct. App. 2000) (holding that genuine

issues of material fact exist and that the trial

court erred in granting summary judgment).

23. Henson v. Sorrell, 02A01-9711-CV-00291,

1999 WL 5630 (Tenn. Ct. App. Jan. 8, 1999)

(affirming the trial court judgment for the defen-

dant, while recognizing the common law right to

bring a fraudulent misrepresentation claim).

24. Note, “You Ain’t My Baby Daddy: The

Problem of Paternity Fraud and Paternity Laws,”

5 Ave Maria L. Rev. 273, 275 (2007). (citing 18

Eliz., c. 3 (1576) (Eng.)) [hereinafter You Ain’t

My Baby Daddy].

25. Id. at 274 (citation omitted).

26. “You Ain’t My Baby Daddy,” supra note

24, at 274; Hodge v. Craig, 382 S.W.3d at 338-39.

27. “You Ain’t My Baby Daddy,” supra note

24, at 274.

28. Id.

29. In re C.K.G., 173 S.W.3d 714, 724 (Tenn.

2005) (citation omitted) (The Tennessee Court of

Appeals had ruled unconstitutional that portion

of Tenn. Code Ann. § 36–2–202(c) which

required the mother’s consent for a putative

father to legitimate a child. In re Hood, 930

S.W.2d 575, 580 (Tenn. Ct. App. 1996).).

30. Hodge v. Craig, 382 S.W.3d at 340-41

(alterations in original).

31. Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn.

Ct. App. 1992).

32. Id. at 95.

33. Id. at 95-96.

34. Id. at 96.

35. Id. at 97.

36. Id.

37. Granderson v. Hicks, 02A01-9801-JV-

00007, 1998 WL 886559, at *1 (Tenn. Ct. App.

Dec. 17, 1998).

38. Id. at *4 (citation omitted).

39. State ex rel. Taylor v. Wilson, W2004-

00275-COA-R3-JV, 2005 WL 517548, at *1

(Tenn. Ct. App. Mar. 3, 2005).

40. Id.

41. Id. at *4 (citation omitted).

42. See infra note 61.

43. See State ex rel. Kimbrough v. Hales,

E2011-02539-COA-R3-CV, 2012 WL 3025712

(Tenn. Ct. App. July 25, 2012); Coppage v. Green,

W2006-00767-COA-R3-JV, 2007 WL 845909

(Tenn. Ct. App. Mar. 21, 2007); State ex rel.

Taylor v. Wilson, W2004-00275-COA-R3-JV,

2005 WL 517548 (Tenn. Ct. App. Mar. 3, 2005)

(providing Tenn. R. Civ. P. 60.02 relief from a

prior paternity determination). But see In re

Kempton L.D., W2009-00906-COA-R3-JV, 2010

WL 1838058 (Tenn. Ct. App. May 7, 2010)

(denying Tenn. R. Civ. P. 60.02 relief for a

previous paternity adjudication).

44. State ex rel. Kimbrough v. Hales, 2012 WL

3025712, at *1.

45. Id.

46. Id. at *1-2.

47. Id. at *1, *3.

48. Id. at *4-8.

49. State ex rel. Russell v. W., 115 S.W.3d 886,

892 (Tenn. Ct. App. 2003).

50. Hodge v. Craig, 382 S.W.3d at 339.

51. Id. at 340.

52. Id. at 341.

53. Id. Miller v. Miller, 1998 OK 24, ¶ 44, 956

P.2d 887, 904 (recognizing a claim for fraudulent

inducement to marry).

54. Id.

55. Id. at 342 (suggesting use of the term

“intentional misrepresentation” to avoid confu-

sion in this case and henceforth, rather than

“fraud” or “fraudulent misrepresentation”).

56. Id. at 345-46 (finding no convincing basis

to expand the scope of negligent misrepresenta-

tion beyond the realm of business transactions).

57. Id. at 341.

58. Id.

59. Id. (Illinois, Kentucky, Minnesota, Okla-

homa, and Utah).

60. Id.

61. Id. at 341-42 (Mississippi, Pennsylvania

and Virginia).

62. Id. at 343 (citations omitted).

63. Id. (alterations in original) (citation

omitted).

64. Id.

65. Id.

66. Id. at 343-44.

67. Id. at 344.

68. Id.

69. Id. at 348.

70. Id.

71. Id.

72. Hodge v. Craig, 382 S.W.3d at 344 n.31.

73. In re Christopher A. D., M2010-01385-

COA-R3-JV, 2012 WL 5873571, at *6 (Tenn. Ct.

App. Nov. 20, 2012)

74. Id. at *7.

75. Id.

76. In re Madilene G.R., M2012-01178-COA-

R3-PT, 2013 WL 139564, at *6 (Tenn. Ct. App.

Jan. 10, 2013) (alterations in original) (citation

omitted).

77. Id. at *5.

78. Id. at *1.

79. Hodge v. Craig, 382 S.W.3d at 344 n.30.

80. Id.

81. Id.

82. Id. at 344 n.31.

83. Id. at 348 n.40.


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Court for his removal, as well as twoother justices of the Supreme Court andthe state attorney general.

On July 28, 1868, Secretary of StateWilliam Seward issued a proclamationannouncing that the 14th Amendmentto the United States Constitution hadbeen ratified by the requisite number ofstates, and was therefore in effect.1

Passed in the aftermath of the Civil War,the 14th Amendment, like the 13th andthe 15th Amendments, was a departurefrom previous amendments in that itlimited, for the first time, the power ofthe states, and extended the obligation

to render due process to the states. As ajustice of the United States SupremeCourt noted: “Fairly construed theseamendments may be said to rise to thedignity of a new Magna Charta.”2 Thesweeping scope of the 14th Amendmentis well known to lawyers in our time.But few in our time are aware of Section3 of the 14th Amendment, or thecontroversy it stirred in Tennessee in theearly 1870s.

Section 3 states:No person shall be a Senator or

Representative in Congress, or electorof President and Vice President, or

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

Tennessee Supreme Court Justice Alfred Osborne Pope Nicholson. All photoscourtesy Library of Congress.

FEATURE STORY

When the United States AttorneySued to Remove Half the

Tennessee Supreme Court

The QuoWarranto Cases

of 1870By Sam D. Elliott

hold any office, civil or military, underthe United States, or under any State,who, having previously taken an oath,as a member of Congress, or as anofficer of the United States, or as amember of any State legislature, or asan executive or judicial officer of anyState, to support the Constitution ofthe United States, shall have engagedin insurrection or rebellion against thesame, or given aid or comfort to theenemies thereof. But Congress may, bya vote of two-thirds of each House,remove such disability.

Unlike the remedial aspects of theother portions of the amendment,Section 3 was meant to punish formerConfederates, especially those who werein the rebel leadership during the CivilWar. Section 3 also had the fairlyobvious purpose of undermining polit-ical opposition to the Republican Partyin the South.3

Tennessee’s quick and somewhatdubious ratification of the 14thAmendment in July 1866 resulted inthe state’s early readmission to theUnion, thereby avoiding the militaryrule imposed on the rest of the formerConfederacy by Congress in 1867. Oneof the two contending parties in thestate at that time was the “Radicals,” thehard-core Unionist supporters of Gov.William G. “Parson” Brownlow, namedas such because of their adherence tothe so-called Radical Republicans inCongress who were intent on a hardReconstruction policy. The other partywas the “Conservatives,” whichincluded Unionists of a mellower bent,and eventually most, if not effectivelyall, of the former Confederates. Theformer Confederates, disenfranchisedby state law, grated at the inability tovote while the franchise was extendedto the black former slaves.4

A breakthrough occurred on Feb.25, 1869, when the uncompromisingRadical, Brownlow, resigned asgovernor to take a seat in the UnitedStates Senate. In his place the speakerof the senate, DeWitt C. Senter, becamegovernor. It was at this point that the

political disability of the 14th Amend-ment became an issue. Although a stoutUnionist who was actually imprisonedby the Confederate government for sixmonths, Senter was a member of thelegislature when Tennessee became aConfederate state, and so technicallyheld office under the Confederacy.Anticipating Brownlow’s resignation, inlate 1868 a rival senator raised the issueof Senter’s potential disqualification.Fortunately for Senter’s politicalprospects, a bill was soon thereafterpassed by Congress and signed by Pres-ident Andrew Johnson removingSenter’s disability.5

Brownlow deemed Senter a trustyRadical, although Senter proved to benot as hard a Radical as the Parson, ashe lightened some of Brownlow’s harsheranti-ex-Confederate measures. Underthe Constitution of 1834, however,Senter’s term would expire in October1869, and he had significant oppositionfrom another trusty Radical, GeneralWilliam B. Stokes. The enfranchisementof the ex-Confederates became thecentral issue of the campaign. Senterused his power over county electionregistrars to allow the former rebels tovote, and they came out, legally or ille-gally, in sufficient force to elect Senterfor a full term. Furthermore, the newConservative-controlled legislatureremoved the remaining franchise restric-tions and submitted to the electorate areferendum on calling a constitutionalconvention. The convention wasapproved by a huge majority, and assem-bled in January 1870.6



“Chief Justice Nicholson was at the center of a controversy that resulted in the United States Attorney for the Eastern District of Tennessee filing suit in theDistrict Court for his removal, as well as two otherjustices of the Supreme Court and the state attorney general.”


Before the convention assembled, theissue of Section 3 of the 14th Amend-ment again came to the forefront. Alengthy letter appeared in the MemphisAppeal in October penned by a Conser-vative who concluded that while thedelegates would be “civil officers of thehighest legislative character” subject tothe disqualification of Section 3, thatwithout a judicial determination that thefacts giving rise to the disability (i.e.,participation or aiding in the rebellion),there could be no disqualification.

There appears to have been littleother discussion of the issue prior to orduring the convention. Certainly, anumber of former Confederate soldiers,politicians and sympathizers were dele-gates to the convention. And these menwere aware that they were beingwatched. As the president of the conven-tion, former Confederate General JohnC. Brown said when he accepted leader-ship of the convention, “We cannot, wemust not, be unmindful of the greatchanges that have impressed themselvesupon our history. Let us accept the situa-tion, and not seek to alter circumstanceswhich have passed beyond ourcontrol.”7 Brown’s referencewas to black suffrage,which, over a stridentminority report, waswritten into the newconstitution. WhileGovernorBrownlow’s regimeshieldedTennessee fromthe hard hand ofCongressionalReconstruction,there wereelements bothinside and outsidethe state whowere not happy thatthe Conservatives hadwrested control ofTennessee away from theRadicals. Indeed, when the

convention concluded, Radicals went toWashington to urge deployment offederal troops, but President Ulysses S.Grant declined. For the time being, thefederal government was not assertingSection 3 or any other basis for interfer-ence in Tennessee’s politics.8

Although Section 3 had no earlyimpact in Tennessee, it was litigated inVirginia in the months prior to theconstitutional convention. One of thegreat historical ironies of the 14thAmendment is that while it was enactedin large part to protect the newly freedslaves, it provided a defense to formerConfederate President Jefferson Davis inconnection with his indictment fortreason. In the view of Chief JusticeSalmon P. Chase, a wartime Radical whomoderated his views after the war,Section 3 constituted a punishment thatinvoked the double jeopardy clause ofthe United States Constitution. Davis’sdisqualification under Section 3 meantthat no further punishment for treasoncould be imposed. The matter was heardbefore a packed courtroom in Richmondon Dec. 4, 1868. Chase sat as the UnitedStates circuit judge for the District of

Virginia and was of theopinion that the indict-

ment should bequashed on double

jeopardygrounds. UnitedStates DistrictJudge JohnUnderwoodsat as theother circuitjudge, andUnderwood,a northernRadical of thestrongest sort,

disagreed,requiring that the

issue be certified tothe Supreme Court.

On Dec. 25, 1868,however, the issue wasmooted as to Davis when

Andrew Johnson issued a generalamnesty for acts of treason arising out ofthe rebellion.9

Chase and Underwood also disagreedrelative to another aspect of the opera-tion of Section 3. A freed black, CaesarGriffin, was convicted in a Virginia courtfor “shooting with the intent to kill” byJudge Hugh Sheffy, who was disqualifiedby Section 3. In his capacity as districtjudge, Underwood granted a writ ofhabeus corpus, finding that Section 3was self-executing and that Sheffy lackedthe capacity to be judge when heconvicted Griffin. In reviewing the case,Chase considered the problems createdby the invalidation of many governmentactions prior to July 1868.

If the construction now contendedfor be given to the prohibitive section,the effect must be to annul all officialacts performed by these officers. Nosentence, no judgment, no decree, noacknowledgment of a deed, no recordof a deed, no sheriff’s or commis-sioner’s sale — in short no official act— is of the least validity. It is impos-sible to measure the evils which such

Quo Warranto continued from page 21

Salmon P. Chase

Joseph Brown Heiskell Continued on page 23

a construction would add to thecalamities which have already fallenupon the people of these states.10

In Chase’s view, legislation was neces-sary to put Section 3 into effect, notingthat Section 5 of the 14th Amendmentprovided that Congress had the powerto pass legislation to enforce the Amend-ment. Chase ruled:

The fifth section qualifies thethird to the same extent as it would ifthe whole amendment consisted ofthese two sections. And the finalclause of the third section itself issignificant. It gives to congressabsolute control of the whole opera-tion of the amendment. These are itswords: “But congress may, by a voteof two-thirds of each house, removesuch disability.” Taking the thirdsection then, in its completeness withthis final clause, it seems to putbeyond reasonable question theconclusion that the intention of thepeople of the United States, inadopting the fourteenth amendment,was to create a disability, to beremoved in proper cases by a two-thirds vote, and to be made operativein other cases by the legislations ofcongress in its ordinary course. Thisconstruction gives certain effect to theundoubted intent of the amendmentto insure the exclusion from office ofthe designated class of persons, if notrelieved from their disabilities, andavoids the manifold evils which mustattend the construction insisted uponby the counsel for the petitioner.

Griffin’s Case, 11 F. Cas. at 21. 11

The fact that a Radical delegationfrom Tennessee visited Washington in thelate winter of 1870 to urge military rule,including the United States attorney forthe Eastern District of Tennessee, EldadC. Camp, did not escape Conservativenotice. While office seekers weredoubtlessly encouraged by Chase’s deci-sion in Griffin, the Radical Republicans inCongress were not necessarily required to

respect it. Recognizing that the issue wasstill in play, a correspondent to the Unionand American requested a list of promi-nent lawyers in Middle Tennessee whowould have no disability under Section 3for the Supreme Court elections sched-uled under the new constitution for laterthat year.12

Before the elections under the new

constitution, however, the Radicals inWashington put teeth into Section 3 byeliminating Chase’s objection in Griffin.The Enforcement Act of 1870, passed onMay 31, provided, in pertinent part:

Sec. 14. And be it further enacted,That whenever any person shall holdoffice, except as a member of





Congress or of some State legislature,contrary to the provisions of the thirdsection of the fourteenth article ofamendment of the Constitution of theUnited States, it shall be the duty ofthe district attorney of the UnitedStates for the district in which suchperson shall hold office, as aforesaid,to proceed against such person, bywrit of quo warranto, returnable tothe circuit or district court of theUnited States in such district, and toprosecute the same to the removal ofsuch person from office; and any writof quo warranto so brought,as aforesaid, shall takeprecedence ofall other caseson the docket ofthe court towhich it ismade return-able, and shallnot becontinuedunless forcause provedto the satisfac-tion of thecourt.

Sec. 15. Andbe it furtherenacted, Thatany person whoshall hereafter know-ingly accept orhold any officeunder the UnitedStates, or any State to which he isineligible under the third section ofthe fourteenth article of amendmentof the Constitution of the UnitedStates, or who shall attempt to holdor exercise the duties of any suchoffice, shall be deemed guilty of amisdemeanor against the UnitedStates, and, upon conviction thereofbefore the circuit or district court ofthe United States, shall be imprisonednot more than one year, or fined notexceeding one thousand dollars, orboth, at the discretion of the court.

Approximately six weeks later, theConservatives held a convention tonominate six justices for the SupremeCourt under the new constitution.13

Questions were raised as to at least twocandidates, A. O. P. Nicholson, andEdwin Ewing. Ewing offered his opinionthat since he took an oath of amnestyunder a proclamation issued by Presi-dent Lincoln, he had no disability.Nicholson claimed he was not disquali-fied because he was pardoned byAndrew Johnson prior to the adoptionof the 14th Amendment. This opinion

did not keep Nicholson’sfriends from trying to

have a bill passed inCongress to

remove hisdisability,which failedbecauseSenatorBrownlowandCongressmanHoraceMaynardobjected toit.14

All sixConservative

nominees wereelected in August

1870. Two, Thomas L.Freeman andfuture governorand chief justice

Peter Turney, formerly commandedConfederate regiments but had held nodisqualifying prewar office. James W.Deaderick was an upper East TennesseeUnionist who maintained a low profileduring the war. John Lewis TaylorSneed had prewar service in theGeneral Assembly and as state attorneygeneral, and was a brigadier general inGov. Isham G. Harris’s ProvisionalArmy of Tennessee but was notaccepted as a Confederate general whenHarris turned the army over to theConfederate government. Nicholson

had prewar service in the GeneralAssembly and as United States senator,and clearly supported the Confederacyduring the war. Like Deaderick,Thomas Amos Rogers Nelson was aUnionist. A prewar district attorneygeneral and congressman, Nelson waselected to the United States Congressafter Tennessee left the Union, butnevertheless went to Washington totake his seat in the Federal congress.Arrested by Confederate authorities, hegained his freedom by promising to gohome and not stir up agitation againstthe Confederacy. He resumed his pro-Union activities when the Federal armyoccupied Knoxville in 1863.15

On Aug. 17, 1870, soon after theelection, Conservative papers in bothNashville and Memphis published alengthy letter in the nature of a legalbrief by Edwin Ewing, which arguedSection 3 was inapplicable because itwas not only ex post facto as to theactions giving rise to the disability, butalso because it was effectively a bill ofattainder. Ewing also argued that, inNicholson’s case, the pardon issued byAndrew Johnson legally made him inno-cent of any offenses. Finally, Ewingargued, the governor could not refuse tocommission the new justices, because aquo warranto proceeding was necessaryto make the factual findings necessary todeny them office. A letter from attorneyM. S. Frierson to Nicholson publishedseveral days later again argued thatNicholson’s pardon removed culpabilityfor any acts prior to the amendment’sratification, that it was ex post facto, and,for good measure, that Nicholson wasnot guilty of any acts proscribed bySection 3.16

Federal authorities in the state wereunimpressed. In Middle Tennessee, quowarranto writs were issued for a numberof local officials in early October 1870.Eventually, as many as 180 cases werebrought under Section 3 and theEnforcement Act. One application for awrit was quoted in the Nashville Unionand American relative to T. K. Grigg, a


Eldad C. Camp

Davidson County justice of the peace,reciting that Grigg, prior to the war hadbeen a constable, had taken an oath touphold the Constitution of the UnitedStates, that he had fought in the Rebelarmy, and that his disabilities had neverbeen removed by Congress.17

On Oct. 22, 1870, United StatesAttorney Eldad C. Camp, part of theRadical delegation that seven monthsbefore had urged armed federal inter-vention in Tennessee, filed informationsagainst justices Nicholson, John L. T.Sneed, T. A. R. Nelson, and TennesseeAttorney General Joseph B. Heiskell, aformer Confederate congressman and anotorious East Tennessee rebel. Conser-vatives claimed that the institution of theproceedings were a simple political ployto put Radicals on the court, perhapsorchestrated by Horace Maynard, whilethe Radical organ Knoxville WeeklyChronicle indicated that the state of the

law made it “obligatory” to institute theproceedings.18

Tennessee’s United States Districtjudge was Connally F. Trigg, a Virginiantransplant to Tennessee who remainedloyal to the Union and was appointedby President Lincoln when WestHumphries was impeached andremoved for Confederate allegiance.Trigg was of a conservative bent, andrapidly dismissed one of the casesbrought in Middle Tennessee, on thebasis that the oath a former soldier tookwas not an oath to uphold the Consti-tution as required by Section 3. At ahearing on one of the other MiddleTennessee cases two days later, Triggdid not seem impressed by the defense’sex post facto argument, noting that the14th Amendment itself allowed ex postfacto laws on the subject of the Amend-ment. Trigg stated, at the close of theargument, “that he did not know as it

was necessary to hasten a decision onthe quo warranto cases, as a caseinvolving the same principles hadalready gone up to the Supreme Courtof the United States” from Louisville.Trigg’s approach was applauded by themembers of the Memphis bar, as it waswidely believed that action would even-tually be taken by Congress to removeall disabilities. Attempting to bypassTrigg, the Radicals made a motion inthe Supreme Court on Jan. 30, 1871, toadvance the Tennessee quo warrantocases on the docket, but the SupremeCourt refused to do so, stating “that thecases were not of sufficient importanceto justify such a course.”19

In February 1871, indictments werefiled in the cases in Knoxville, one caseeach against Nicholson and Nelson, andan amazing 10 cases were filed against




Sneed, alleging that each gave “aid andcomfort” to the “traitorous organizationknown as the Confederate States ofAmerica.”20 It appears that at least fourcases were filed against Heiskell, whowas hated in East Tennessee as a virulentsecessionist.21 While Sneed, Nicholsonand Heiskell were unvarnished Confed-erates, it must have been particularlygalling to Nelson, who was threatenedwith physical harm by secessionists afterhis efforts on the part of the Union in1861 and imprisoned by the Confed-erate government, to be indicted foraiding the Confederacy.22

In the end, Trigg’s decision to slowwalk the cases allowed events in Wash-ington to moot the issue. Another yearand a half went by, during which time

Justice Nelson resigned his office, to bereplaced by Robert McFarland, anotherConfederate officer who held no officebefore the war, although Nelson’s resig-nation did not affect the pendency of hiscase. On May 22, 1872, Congress passeda wide amnesty that removed thedisabilities from all but a few formerConfederates, “except Senators andRepresentatives of the thirty-sixth andthirty-seventh Congresses, officers in the

judicial, military, and naval service of theUnited States, heads of departments,and foreign ministers of the UnitedStates.” President Grant issued a direc-tive to the various United States Attor-neys to dismiss the various quo warrantocases pending, except those not coveredby the Amnesty Act. Given the fact thatNicholson was a Senator in the 36th and37th Congresses, and Nelson technicallya member of the 37th Congress, theAmnesty Act did not resolve their cases,although it did Sneed’s and presumablyHeiskell’s.23

The cases against Sneed and Nelsonwere dismissed on July 9, 1872. Thecase against Nicholson was dismissed onSept. 16, 1872.24 While Grant may nothave taken steps to cease the prosecu-tion, his suspension of United StatesAttorney Camp at the insistance ofBrownlow and Maynard resulted inCamp’s resignation late in 1871.Without this fiery Radical to push thecase, it seems likely his successor lookedat the facts of Nicholson’s pardon andNelson’s resignation in 1871 and strongUnionism during the war to determinethat pursuit of the quo warranto caseswas no longer in the best interests of thegovernment.25

Nicholson served as chief justiceuntil his death on March 23, 1876.Sneed served his eight year term on thesupreme court, and later became vice-president of the American Bar Associa-tion, dying in 1901. T. A. R. Nelson diedof cholera in 1873. Death came last tothe fiercest of the contestants in thisstory. Hard-core secessionist Heiskellserved out his term as attorney generaland practiced law until 1892, andenjoyed his retirement until his death in1913 at the ripe age of 89, havingstarted a law firm that is one of the pred-ecessors to today’s Baker, Donelson. HisRadical antagonist, Eldad C. Camp,outlived even Heiskell, dying in 1920after amassing quite a fortune in miningand other interests.26

The quo warranto cases are so obscurethat they never even became a footnote in

Tennessee legal history. Whipped up bypolitics made all the more partisanbecause the contending parties were onlya few years before literally shooting at oneanother, the cases were resolved as casesdriven by politics often are, by thepassage of time, the softening of passions,and a judge’s calm consideration of thebest interests of the public.

SAM D. ELLIOTT is amember of the Chat-tanooga firm of Gearhiser,Peters, Elliott and CannonPLLC. He is a past presi-dent of the Tennessee BarAssociation and the Chat-

tanooga Bar Association, and the author oreditor of several books and articles onTennessee in the Civil War era. He dedicatesthis article to the memory of Charlie Gearhiser.

Notes1. Statutes at Large, Proclamations and

Treaties of the United States of America,

December 1867, to March, 1869, Vol. 15

(Boston: Little, Brown & Company, 1869), 708.

2. Slaughter-House Cases, 83 U.S. 36, 125

(1873) (Swayne, J., dissenting)

3. Horace Edgar Flack, The Adoption of the

14th Amendment, (Baltimore: Johns Hopkins

Press, 1908), 127-33.

4. Robert E. Corlew, Tennessee: A Short

History, 2nd ed. (Knoxville: University of

Tennessee Press, 1990), 331-39.

5. “Who Shall Be Governor,” Nashville

Union and American, November 14, 1868; “A

Radical Protest,” Nashville Union and American,

March 3, 1869.

6. Corlew, Tennessee: A Short History, 342-

45, 349.

7. Journal of the Proceedings of the

Convention of Delegates Elected by the People

of Tennessee to Amend, Revise, or to Reform or

Make a New Constitution for the State,

(Nashville: Jones, Purvis & Co., 1870), 8.

8. “Who May be Members of a State

Convention?” Memphis Appeal, October 3,

1869; Robert H. White, ed., Messages of the

Governors of Tennessee, (Nashville: Tennessee

Historical Commission, 1963) 6:84; Corlew,

Tennessee: A Short History, 349-51.

“… the contending partieswere only a few years before

literally shooting at oneanother … the cases wereresolved as cases driven bypolitics often are, by thepassage of time, the

softening of passions, and a judge’s calm consideration

of the best interests of the public.”


9. C. Ellen Connally, “The Use of the 14th

Amendment by Salmon P. Chase in the Trial of

Jefferson Davis,” 42 Akron L. Rev. 1165 (2009).

This article provides a good synopsis of the

legal and political issues surrounding Davis’s

prosecution.

10. Griffin’s Case, 11 F. Cas. 7, 15 (C.C.D.

Va. 1869).

11. Chase’s opinion in Griffin was printed

on the front page of the Nashville Union and

American, a Conservative organ. “Important

Legal Decision,” Nashville Union and American,

May 14, 1869.

12. “Reconstruction,” Memphis Daily

Appeal, March 16, 1870; “Supreme Judges —

Who are Qualified,” Nashville Union and Amer-

ican, March 31, 1870.

13. “To forstall squabbling about the initial

makeup of the Court, a schedule to the Consti-

tution provided that the Court should at first

be composed of six judges, two from each

grand division. The first judge to resign after

January 1st, 1873 would not be replaced. This

schedule left to chance the choice of which

division would be underrepresented.” R. Ben

Brown, “The Tennessee Supreme Court During

Reconstruction and Redemption,” in James W.

Ely, ed., A History of the Tennessee Supreme

Court, (Knoxville: University of Tennessee

Press, 2002), 121.

14“Judicial Convention,” Nashville Union

and American, July 12, 1870; “Judge

Nicholson’s Disabilities,” Nashville Union and

American, July 13, 1870. The issue also affected

the election for governor scheduled for

November, 1870. The Conservatives had four

potential nominees, John C. Brown, William B.

Bate, William A. Quarles, and Arthur S. Colyar.

Brown, Bate and Quarles were former Confed-

erate generals, and Colyar was a Confederate

congressman. Bate was clearly disqualified as a

prewar member of the General Assembly.

Quarles held judicial office of a temporary

nature during the disability of the regular

judge, and argued that as he held the office

“locum tenens,” the disability did not apply.

Brown and Colyar not only did not hold

prewar office, but also received a pardon prior

to the adoption of the 14th Amendment. All

but Brown eventually dropped out and Brown

was elected.

15. Compiled from Ely, A History of the

Tennessee Supreme Court, Oliver P. Temple,

Notable Men of Tennessee (New York, 1912),

The Tennessee Encyclopedia of History and

Culture, and Caldwell, Sketches of the Bench

and Bar of Tennessee, (Knoxville, 1898).

16. “Political Disabilities,” Nashville Union

and American, August 18, 1870; “The Four-

teenth Amendment,” Memphis Appeal, August

18, 1870; “Political Disabilities,” Nashville

Union and American, September 2, 1870.

Some years later, the United States Attorney

General agreed that a pardon prior to the ratifi-

cation of the 14th Amendment neutralized a

Section 3 disqualification. 18 Op. Att’y Gen.

149 (1885).

17. “Quo Warranto,” Nashville Union and

American, October 12, 1870; “Enforcing the

Fourteenth Amendment,” Fayetteville Observer,

October 13, 1870; “The Knoxville Press and

Herald,” Nashville Union and American, July 11,

1872; “Political Disabilities — The Question in

the Federal Court,” Nashville Union and Amer-

ican, October 20, 1870. In state court, the elec-

tion of W. W. Ward to the post of chancellor for

the 5th Chancery Division was challenged on

the basis of Ward’s ineligibility under Section 3.

The case was heard by Confederate veteran

(and future governor) Chancellor A. S. Marks

who denied an injunction on the basis of the ex

post facto operation of the disability. “Political

Disabilities,” Nashville Union and American,

October 18, 1870.

18. “Important Legal Proceedings,” Knoxville

Chronicle, October 23, 1870; “The Supreme

Court and the Fourteenth Amendment,”

Knoxville Weekly Chronicle, November 2, 1870;

“The Movement to Radicalize the Supreme

Court,” Columbia Herald, November 2, 1870.

19. Caldwell, Sketches of the Bench and Bar

of Tennessee, 306-7; “The Quo Warranto

Cases,” Nashville Union and American,

November 6, 1870; “The City,” Nashville Union

and American, November 8, 1870; “Trigg and

Emmons,” Knoxville Daily Chronicle, February

14, 1871; “The Quo Warranto Cases,” Nashville

Union and American, February 3, 1871.

20. With the assistance of Eastern District

historian Don Ferguson and Shane Bell of the

National Archives, the author was able to

review images of the docket book with entries

copying the various indictments, bonds, and

other entries. I am also indebted to Judge

Curtis Collier and Deputy Clerk John Medearis

for their assistance in accessing sources.

21. Marvin Byrd, A Unionist in East

Tennessee: Captain William K. Byrd and the

Mysterious Raid of 1861, (Charleston: The

History Press, 2011), 144.

22. Nelson was also one of Andrew

Johnson’s defense counsel during his impeach-

ment trial.

23. Caldwell, Sketches of the Bench and Bar

of Tennessee, 311-14;” Resignation of Judge

Nelson,” Knoxville Daily Chronicle, November

30, 1871; Act of May 22, 1872, 17 Stat. 142;

Proclamation of June 1, 1872, Papers of

Ulysses S. Grant, 23:155.

24. “The Courts”, Knoxville Daily Chronicle,

September 17, 1872. No reference to the dispo-

sition of Heiskell’s cases could be located, but he

served as attorney general until 1878. The Act of

May 22, 1872 presumably resolved his case.

25. Camp to Grant, November 3, 1871,

Papers of Ulysses S. Grant, 22:427.

26. ”Death of Judge Nicholson,” Memphis

Daily Appeal, March 24, 1876; “Death List of A

Day,” New York Times, July 30, 1901; “A Tribute

to the Memory of Hon. Joseph B. Heiskell,”

127 Tenn. 733; “Major Eldad C. Camp,”

http://wate.net/wate/history/

major-camp accessed April 9, 2013.


Thomas Amos Rogers Nelson


You will find examples of Lincoln’soratory. It is also interesting to learnabout his colleagues in the Capitol,including former President John QuincyAdams and Kentuckian Henry Clay.

James K. Polk of Tennessee was ourpresident at the time. Lincoln opposed“Polk’s War” against Mexico. I was disap-pointed to find two of my heroes indisagreement.

Did Lincoln get legislation enacted?Not much. A law creating new mail routes(“postal routes”) topped his short list.

Before leaving Washington in March1849 at the end of his legislative term,Abraham Lincoln orally argued his onlyU.S. Supreme Court case, Lewis for use ofLongworth v. Lewis. It involved thecommencement of a statute of limita-tions. Lincoln lost.

DONALD F. PAINE is a past president of theTennessee Bar Association and is of counsel tothe Knoxville firm of Paine, Tarwater, and BickersLLP. He lectures for the Tennessee Law Institute.

By Chris DeRose |Threshold Editions |

$26 | 335 pages | 2013

BOOK REVIEW BY DONALD F. PAINE

Congressman Lincoln: The Making of America’sGreatest President Illinois lawyer Abraham Lincoln 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.

We provide consultation, referral, intervention, educa-tion, and peer support services for lawyers, judges,bar applicants, law students and their families.

All calls are confidential and free. If you or someoneyou know is suffering from stress, anxiety, burn-out, grief, major life changes, depression and/orsubstance abuse problems, call the

TENNESSEE LAWYERS ASSISTANCEPROGRAM

1-877-424-TLAP

Problems are not signs of failure but opportunities for growth …


will bring good times for Big Orange trustbusiness. Two recent federal bankruptcycases provide a game plan for victory.

‘Protect our kickers, our quarter-back, our lead and our ball game’The fourth of legendary UT coach Gen.Robert Neyland’s seven game maximswas “Protect our kickers, our quarter-back, our lead and our ball game.”1 Asimilar maxim of estate planning isprotect clients’ assets from creditors,divorces, and spendthrift beneficiaries. IfGen. Neyland were a Tennessee estateplanning attorney, he might recommenda Tennessee Investment Services Trust(TIST) for such protection.

Under the common law, “self-settledspendthrift trusts” were void as to credi-tors, because it was against public policyto allow individuals to avoid their credi-tors by placing their assets in a trustfrom which they could benefit.2 Thesettlor-beneficiary’s creditors could reachthe assets to the maximum extent thatthe assets could be used for the settlor-beneficiary’s benefit. As a result, manywealthy Americans instead transferredassets to offshore trusts in jurisdictionsthat uphold self-settled spendthrifttrusts and provide substantial barriers tocreditors reaching trust assets.

In an effort to keep some of that trustbusiness at home, at least 14 states havepartially supplanted the common lawrule by statute, allowing individuals tocreate self-settled “domestic asset protec-

tion trusts” (DAPTs). DAPTs, generallyrequiring the use of a trustee in the state,purport to offer the same creditorprotection available in offshore jurisdic-tions at a reduced cost, hassle, andcross-border risk. Tennessee joined theDAPT states in 2007 with passage of theTennessee Investment Services Act.3

Recruit NationallyTennessee’s trust law was modified in2013 with the specific goal of recruitingtrust business from around the country,competing with states such as SouthDakota that have been particularlysuccessful in attracting trust business.The changes, effective July 1, 2013,make it significantly harder for a cred-itor to reach DAPT assets.4

TIST MaximsWhile DAPT laws are largely untested inthe courts, two recent federal bankruptcycases,5 In re Mortensen6 and In re Huber7,weighed the efficacy of Alaska DAPTs andfound them wanting. The cases providemaxims for TIST planners seeking assetprotection victory for their clients.

Get big. In Mortensen, the debtor wasan Alaska resident making use of theAlaska DAPT statutes. It appears that hemet the basic requirements of thestatutes and was technically solventupon funding the trust. However, thecourt applied Bankruptcy Code Section

“The Tennessee legislatureand Gov. Haslam hope that Tennessee asset

protection trusts, aided byrecent trust law changes,will bring good times for

Big Orange trust business.”

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 Austin Peay 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,



548(e)(1), which provides:In addition to any transfer that the

[bankruptcy] trustee may otherwiseavoid, the trustee may avoid anytransfer of an interest of the debtor inproperty that was made on or within10 years before the date of the filingof the petition, if—

such transfer was made to a self-settled trust or similar device;

such transfer was by the debtor;the debtor is a beneficiary of such

trust or similar device; andthe debtor made such transfer with

actual intent to hinder, delay, ordefraud any entity to which thedebtor was or became, on or after thedate that such transfer was made,indebted.

Because the value of Mr. Mortensen’sassets outside the trust barely exceededhis debts, the court found that he madethe transfer to the trust with actualintent to defraud current and futurecreditors. TIST settlors must executesolvency affidavits, but that might not beenough for 548(e)(1). No team cancompete in the SEC without size at mostpositions and only clients whose networth is significant after funding thetrust will have reasonable confidencethat their transfers are safe from the548(e) intent test.

Build a fence around Tennessee.The DAPT in Huber was created by aWashington resident but designatedAlaska as the governing law. Alaskarecognizes DAPTs but Washington doesnot, creating a conflict in the laws of thetwo states as to the validity of the DAPT.The court said federal bankruptcy courtsin the Ninth Circuit apply federal, notforum state, choice of law rules, andfollow the approach of the Restatement(Second) of Conflict of Laws (1971).Section 270 of the Restatement providesthat an inter vivos trust of interests inmovables will be valid if it is valid

under the local law of the state

designated by the settlor to governthe validity of the trust, provided thatthis state has a substantial relation tothe trust and that the application ofits law does not violate a strongpublic policy of the state with which,as to the matter at issue, the trust hasits most significant relationship.8

At trust creation, Mr. Huber, one ofthe trustees, and all the beneficiaries ofthe trust resided in Washington; all theproperty placed in the trust, except onesmall CD, came from Washington; andmuch of the property placed in the trustwas Washington real property or busi-

ness interests. The only relation toAlaska was that it was the location inwhich the trust was to be administeredand the location of one of the trustees,Alaska USA Trust Company (AUSA).Since the court found that Washingtonhad the most significant relationshipwith the trust and Washington has astrong public policy against self-settledtrusts, the court disregarded Alaska lawand applied Washington law to find thatMr. Huber’s transfers to the trust werevoid as to creditors.

Part of Coach Jones’ success will be to“build a fence” around Tennessee,

convincing the top talent in Tennessee toplay for the home-state team.9 Such astrategy is perfect for developing TISTbusiness, as the conflicts of laws issuesin Huber should be no threat to TISTscreated by Tennessee residents usingassets located in Tennessee (and anyother assets not physically located in ajurisdiction without DAPTs), particularlyif the trust has no trustees locatedoutside Tennessee.

It is unclear how well TISTs will workfor Tennessee residents funding the trustswith real property located in a non-DAPTstate, or for residents of other states,particularly if funding the trust withassets not physically located in Tennessee.The Sixth Circuit position on choice oflaws in bankruptcy (forum state orfederal/Restatement) and the location ofthe bankruptcy proceeding will deter-mine whether Tenn. Code Ann. Section35-15-107, which seeks a broad applica-tion of Tennessee law to trusts that claimTennessee governing law, controls.

Build it brick by brick. Hoping tobe given at least four or five years torestore the Vols to their former glory,Coach Jones has said of his rebuildingjob, “It’s like building a building. Youbuild it brick by brick.”10 Translation:“This is going to take a while.”

The same is true for effective DAPTplanning. In Huber, the debtor made anumber of mistakes, but all were viewedin light of his waiting until he was introuble with creditors to seek DAPTprotection. The court found that Mr.Huber “was or had to be aware of thegathering storm clouds.” In a number ofemails between Mr. Huber and his estateplanning attorney, Mr. Huber expressedurgency in setting up the trust.

The court found the transfers to thetrust to be fraudulent under Section548(e)(1) of the Bankruptcy Code, as inMortensen. The court also found thetransfers fraudulent under Washington’sversion of the Uniform FraudulentTransfers Act (UFTA), pursuant toSection 544(b)(1) of the BankruptcyCode, which gives the bankruptcytrustee authority to bring an action to

Where There’s A Willcontinued from page 29

“The Sixth Circuit positionon choice of laws in

bankruptcy … and the location of the bankruptcyproceeding will determinewhether Tenn. Code Ann.

Section 35-15-107, which seeks a broad

application of Tennessee law to trusts that claimTennessee governing

law, controls.

avoid fraudulent transfers under statelaw. Under the Washington UFTA, atransfer is fraudulent if the transfer wasmade without consideration and the“debtor acts with actual intent to hinder,delay, or defraud a creditor.”

In determining whether Mr. Hubertransferred his assets to the trust “withactual intent to hinder, delay or defraud”a creditor, the court described the many“badges of fraud” in the case, including(1) creditors already were threating liti-gation at the time of the transfers; (2)the transfers represented 78 percent ofthe value of Mr. Huber’s property; (3) hecontinued to benefit from the assetstransferred; (4) he did not receive anyconsideration for the transfers; and (5)the trust specifically stated that it wascreated for the purpose of shelteringassets from his creditors.

Because of the multiple badges offraud, the bankruptcy court concludedthat Mr. Huber made the transfers “withactual intent to hinder, delay or defraud”his creditors and ruled that the transfersto the trust were voidable by the bank-ruptcy trustee.

Would the result have been differentfor a TIST? The 10-year look back ofSection 548(e) applies to TISTs, and theTennessee UFTA provision is similar toWashington’s.11 Both provisions call forearly planning to put as much time as

possible between transfers to a TIST anda future debt or bankruptcy. As statedabove, TIST settlors must executesolvency affidavits, but those documentscan be self-serving and will not establishintent. Lawyers counseling potentialTIST settlors should perform their owndue diligence as to whether the TISTclient has “gathering storm clouds.”

The players don’t call the plays. Mr.Huber’s son, another individual (appar-ently a stepdaughter), and AUSA weretrustees. The evidence showed that Mr.Huber made requests for disbursementfrom his son, the son then prepared arequest for a payment, AUSA approvedthe disbursement without any inquiry,the son never met with representativesof AUSA, and “AUSA did nothing tobecome involved with the [preservation]and/or protection of the assets of theTrust and was acting merely in thenature of a straw man.”

A TIST requires at least one “qualifiedtrustee” who “materially participates” inthe administration of the trust,12 but thebar for material participation appearslow and a court could find that a trusteemeeting the basic statutory requirementsis not really in charge.

Lastly, don’t show the other teamthe play book. When a business partner

indebted to Mr. Huber threatened totransfer assets to a DAPT (before Mr.Huber had done so), Mr. Huber assertedin writing that such a trust would befraudulent as to him. Jack Sells couldn’thave done a better job giving away theplay book.13

ConclusionBig Orange football has a steep climb toget back to the top of the college foot-ball mountain, and Big Orange trustbusiness has a long way to go tobecome the South Dakota of the South.However, Tennessee residents who hireTennessee trustees for Tennessee assetshave reasons for great optimism thatTISTs are the best play to achieve assetprotection victory. Go Vols, beat ’Bama!Go Big Orange TISTs, beat creditorsand maybe South Dakota! It’s trust timein Tennessee!

EDDY R. SMITH practices trust and estate lawwith Holbrook Peterson Smith PLLC in Knoxville.He is a fellow of the American College of Trustand Estate Counsel and past chair of theTennessee Bar Association Estate Planning andProbate Section. He can be reached [email protected].




Notes1. http://www.volnation.com/

neylands_maxims.php. Although the seven

game maxims are well-known, it appears Gen.

Neyland had at least 38 team maxims.

http://www.utsports.com/blog/2012/03/

neylands-38-team-maxims.html.

2. See Kurt A. Friesen, “Domestic Asset

Protection Trusts: 15 Years After Alaska and

Delaware,” ABA Trust & Investments, March-

April 2012 (citing Restatement (Third) of

Trusts, §§ 58(2), 60 cmt. F (2003)).

3. Tenn. Code Ann. §35-16-101 et seq. See

Dan W. Holbrook, “The TIST Test: Tennessee

Competes for Trust Dollars,” 43 Tenn. B.J. 21-

22 (Aug. 2007); Darsi Newman Sirknen,

“Tennessee’s Investment Services Act: A Monu-

mental Change in Tennessee Trust Law,” 43

Tenn. B.J. 16-20 (Sept. 2007); Dan W.

Holbrook, When to TIST? Here’s a List, 43

Tenn. B.J. 25-26 (Nov. 2007).

4. 2013 Tenn. Publ. Acts 390. The far-

reaching changes include:

Tenn. Code Ann. §35-15-105, Default and

Mandatory Rules, and §35-15-404, Trust

Purposes. Remove the requirement that trust

purposes be “not contrary to public policy.”

Tenn. Code Ann. §35-15-502, Spendthrift

provision. If a trust has a spendthrift provi-

sion, no creditor or assignee of a beneficiary

may force any distribution, even if the bene-

ficiary has the right to enforce a mandatory

distribution. A fiduciary apparently can

simply stop making mandatory distributions.

Tenn. Code Ann. §35-15-504, Discre-

tionary interests — Effect thereof. Regard-

less of whether a trust contains a spendthrift

provision, if an interest is a discretionary

interest, no creditor may force or reach a

distribution or require a fiduciary to exer-

cise discretion to distribute.

Tenn. Code Ann. §35-16-104, Restrictions

on actions, remedies, and claims. The legis-

lature narrowed the time to file a claim to

set aside transfers to TISTs as fraudulent

and heightened the burden of proof. Prior

to this change, creditors had to challenge

qualified dispositions as fraudulent

pursuant to the limitations period in the

Uniform Fraudulent Transfer Act, Tenn.

Code Ann. §66-3-310, which is essentially

four years. With this revision, if a person is

a creditor when the qualified disposition to

the TIST is made, the creditor has the

longer of (a) two years after the qualified

disposition is made or (b) six months after

the creditor discovers or should have

discovered the qualified disposition. If the

person becomes a creditor of the settlor

after the qualified disposition is made, the

action must be commenced within two

years after the qualified disposition. A cred-

itor cannot bring a claim with respect to

property comprising a qualified disposition

unless he or she can prove by clear and

convincing evidence that the settlor trans-

ferred the property with the intent to

defraud that specific creditor. See also Tenn.

Code Ann. §35-15-505(g).

5. Thanks to Hon. Richard S. Stair Jr.,

Bankr. E.D. Tenn., and Steven Lipsey, Esq.,

Knoxville, for helping this non-bankruptcy

lawyer get the bankruptcy stuff right.

6. Battley v. Mortensen (In re Mortensen), Ch.

7 Case No. A09-00565-DMD, Adv. No. A09-

90036-DMD., 2011 Bankr. LEXIS 5004 (Bankr.

D. Alaska May 26, 2011).

7. Waldron v. Huber (In re Huber), Ch. 7 Case

No. 11-41013, Adv. No. 12-04171, 2013

Bankr. LEXIS 2038 (May 17, 2013)

8. Restatement (Second) of Conflict of Laws

§270(a) (1971) (emphasis added).

9. http://www.saturdaydownsouth.com/

2013/tennessee-recruiting-class-6-1/.

10. “Tennessee Vols building on brick

theme,” Chattanooga Times Free Press, June 3,

2013, http://www.timesfreepress.com/

news/2013/jun/02/vols-building-on-brick-

theme/.

11. Tenn. Code Ann. §66-3-305.

12. Tenn. Code Ann. §35-16-102(12).

13. See http://www.cstv.com/sports/

m-footbl/stories/091702acd.html.

Where There’s A Willcontinued from page 31

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the register’s office of every countywhere the defendant/judgment debtorowns real property. That will give you ajudgment lien against the realty for 10years. Moreover, you can move toextend the judgment every decade for anadditional 10 years. It’s a no losemotion. File copies of the order grantingthe motion in the same registers’ offices.

Once your lien is perfected, no levy isneeded for real property. It can be soldby auction under the procedure in Rule69.07(4).

Personal property also can be soldby auction under Rule 69.06(3). A levyis accomplished by the sheriff “exer-cising control over the judgmentdebtor’s personalty.”

Garnishment can be delicious. Takedepositions (“discovery in aid of execu-tion”) of the judgment debtor and his orher significant others. I once had adebtor’s former girlfriend come to myoffice to tell me where the liar’s loot waslocated. My pro bono client collectedevery penny owed.

You’ll find some statutes in the Codeconflicting with Rule 69. But don’tworry about them. They are “of nofurther force or effect” under Tenn. CodeAnn. §16-3-406.

DONALD F. PAINE is a past president of theTennessee Bar Association and is of counsel tothe Knoxville firm of Paine, Tarwater, and BickersLLP. He lectures for the Tennessee Law Institute.

“Garnishment can be delicious.”

PAINE ON PROCEDURE BY DONALD F. PAINE

Practical Advice for Collecting a JudgmentMy 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

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“Well, Princess, if you want to go to afootball school, apply to Vanderbilt. Butif you want to pursue academic excel-lence, apply to the University ofTennessee.”

When I applied to the University ofTennessee in the fall of 1969, to getadmitted, you just had to have a vacci-nation…and they would waive that ifyou looked healthy.

But in recent years, the University ofTennessee has dramatically raised itsacademic standards. If you don’t believeit, just watch the Tennessee Volunteersplay football this fall. Clearly, theTennessee team is comprised of verybright students who excel in the class-room, but not on the football field.

The world has been turned upsidedown. The bright scholars from theUniversity of Tennessee are nowhoping to someday beat Vanderbilt infootball again.

On Aug. 31, more than 100,000Tennessee fans will pack NeylandStadium to watch the orange-cladstudent-athletes play Austin Peay. Thismay be the only game this fall in whichthe Vols are favored.

But win or lose, the highlight of theVolunteers’ opening football game willtake place just moments before the kickoffwhen 100,000 fans will rise as one andjoin the Pride of the Southland band insinging Tennessee’s unofficial fight song,“Rocky Top.” (Tennessee’s official fightsong is “Down the Field,” which we stole

from Yale, but that’s another story.)Most Tennessee fans do not know all

the words to “Rocky Top.” In fact, mostof us Vols fans just know the chorus:

Rocky Top, you’ll always be Home sweet home to me!Good … ol’ … Rocky Top (WOO!)Rocky Top, Tennessee

Some Vol fans only know one wordin the song, the gratuitous “WOO!” I say“gratuitous,” because the word “WOO”is not actually found in the lyrics of“Rocky Top.” It is something exuberantVols fans have thrown into the song overthe years, probably because when theyare singing, they are usually inebriated.

While your typical Vol football fanwill sing “Rocky Top” 20 or 30 timesduring each Tennessee football game,few fans ever sing the second or thirdverses of the song. This is too bad,because they really are quite interesting.They deal with a subject that, to myknowledge, is not dealt with in anyother college football fight song, specifi-cally … moonshine.

The second verse of “Rocky Top” goeslike this:

Once two strangers climbed ol’ RockyTop, lookin’ for a moonshine still

Strangers ain’t come down fromRocky Top

Reckon they never will!

And then the third verse reiterates themoonshine theme:

“Moonshine has alwaysbeen extremely important to us Tennessee lawyers. A lot of criminal defense

attorneys in this state havemade a good living

defending moonshiners.”

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,

Corn won’t grow at all on Rocky TopDirt’s too rocky by farThat’s why all the folks on Rocky TopGet their corn from a jar!

The fact that over half the lyrics to“Rocky Top” are dedicated to moonshineshows just how important the illegalwhite whiskey is to the Volunteer State.

First, moonshine has always beenimportant to the people of Tennessee,particularly poor ones who often have ahard time scratching out a living. Yes,making and selling moonshine has longbeen illegal in most parts of Tennessee,but as a client of mine once confided inme, “Mr. Haltom, I’m as honest as thetimes will allow!”

Second, moonshine has always beenextremely important to us Tennesseelawyers. A lot of criminal defense attor-neys in this state have made a good livingdefending moonshiners. You say crimedoesn’t pay? Well, it sure pays for lawyerswhen the crime involves moonshine!

Third, moonshine has been veryimportant to the people of Tennessee inthat it has provided some southerncomfort to poor folks who can’t afford aFrench Bordeaux, a Napa Valley sauvi-gnon, or a Lynchburg Jack Daniels.

Accordingly, when 100,000 Vols fansin Neyland Stadium croon “Rocky Top,”they aren’t just singing in support of theirfootball team. They are singing in tributeto one of the great natural resources ofthe Volunteer State, moonshine!

But when 100,000 of my closestorange-clad friends and I gather atNeyland Stadium on Aug. 31, we shouldbelt out “Rocky Top” stronger than ever,and we should definitely sing all fourverses. Why? Simple. Tennessee moon-

shine is stronger than ever, and I’m notjust talking about in terms of 50-percentalcohol content. According to a recentarticle in Time, the demand forTennessee moonshine is booming, andit’s not just coming from strangers whoclimb old Rocky Top. Thirsty peoplefrom all over America are now trying toget their hands on Tennessee moon-shine. Indeed, Appalachian moonshinehas become one of the fastest-growingcategories in the spirits industry.

According to Time, more than130,000 cases of moonshine were soldin 2012, much of it totally legal. The OleSmokey Moonshine Distillery in Gatlin-burg sold more than 100,000 cases ofmoonshine last year. The Short Moun-tain Distillery in Woodbury is also ship-ping bottles (or jars) of “Short MountainShine” all over the country.

In some states you can now buyTennessee moonshine in Wal-Mart,Kroger, and the Piggly-Wiggly. Ofcourse, in Tennessee, you can’t even buySunshine whiskey in a grocery storesince the legal venues of all such salesare exclusively liquor stores.

It is, however, good to know thatTennessee moonshine is now beingbought at Wal-Marts, Jitney Jungles, andSack O’ Suds across America. This couldprovide a whole new meaning to theword “revenuers.”

And so, my fellow Vols fans, when wegather at Neyland Stadium on Aug. 31for the big game against Austin Peay, let’sraise our glasses, or more accurately ourjars, not just to the Volunteers, but toTennessee moonshine, that wonderfulconcoction that has generated legal billsfor decades.

I’m absolutely confident that

someday our Vols will beat Vanderbilt infootball again. Until then, we Vols fansshould remain in high spirits. As thirstyTennesseans have said for generationsevery time they have taken a sip from ajar, “WOO!”

BILL HALTOM is a partner with the Memphisfirm of Thomason, Hendrix, Harvey, Johnson &Mitchell. He is past president of the TennesseeBar Association and is a past president of theMemphis Bar Association.

“Rocky Top” © 1967 House of Bryant Publica-tions, written by Boudleaux and Felice Bryant.Lyrics used by permission of publisher.


ATTORNEY/LAWYER

MemphisThe Office of the General Counsel,University of Tennessee System isseeking candidates for the position ofAssistant or Associate General Counsel.Most work will involve the University ofTennessee Health Science Center locatedin Memphis.

For complete position information and toaccess the online application, please visitthe following:https://ut.taleo.net/careersection/ut_knoxville/

jobdetail.ftl?lang=en&job=13000000GJ

The University of Tennessee is an EEO/AA/TitleVI/Title IX/Section 504/ADA/ADEA institution in the

provision of its education and employmentprograms and services. All qualified applicants willreceive equal consideration for employment withoutregard to race, color, national origin, religion, sex,

pregnancy, marital status, sexual orientation, genderidentity, age, physical or mental disability, or

covered veteran status.

THE UNIVERSITY of TENNESSEE


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Ste 400. Box 1437, Nashville, TN 37219

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Author John A. Day, 2012 Best Lawyers Bet-the-Company Litigation Lawyer of the Year for Nashville and 2012 Best Lawyers in Americalisted in Personal Injury, Medical Malpractice, Products Liability, Commercial and Bet-the-Company Litigation

DAYONTORTS:LEADING CASESIN TENNESSEE TORT LAW

What You Need to Know. When You Need to Know It.“Quick! I need a case that says....” If you’re an associate, you’ve heard it. If you’re a partner,you’ve said it. Computerized research is not always time-efficient when you’re looking for the case onpoint. And time is money. This book will save you hours of research every month…time that can be spent developing new clients for your practice. With Day on Torts, you’ll have at your fingertips:

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