Update: White County Judge Rescinds Sterilization Order…Sort of

By Daniel A. Horwitz

Last week, news broke of White County General Sessions Judge Sam Benningfield’s wildly unconstitutional standing order that White County inmates who declined to submit to sterilization would receive an additional 30 days in jail.  In an order dated July 26, 2017, Judge Benningfield has formally rescinded his prior order with the caveat that he will still be handing out a eugenics discount to anyone who “demonstrate[s] to the court their desire to improve their situations” by being sterilized.

Even as partially rescinded, however, Judge Benningfield’s policy of determining the length of an inmate’s sentence based on whether the inmate has agreed to submit to sterilization remains illegal.  As previously explained:

 In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

White County’s backdoor eugenics program needs to be terminated in its entirety.  The program is a moral outrage and a blight on the entire legal profession.  Nobody—and certainly no member of the Bar—should tolerate it.  If Judge Benningfield will not resign his office, he should be removed.

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Eugenics is Illegal

By Daniel A. Horwitz

On Wednesday evening, News Channel 5 broke the unspeakable outrage that a judge in White County, Tennessee, had signed a standing order providing for a 30-day “reduction” in jailtime if an inmate submits to sterilization.  According to the report, 70 inmates have already accepted this “eugenics discount” in exchange for early release.  Somehow, each aspect of the story is even more shocking than the next.

To begin, General Sessions Judge Sam Benningfield—the mastermind behind White County’s backdoor eugenics program—defended his efforts without any apparent sense of shame, telling Channel 5’s Chris Conte that: “I hope to encourage [inmates] to take personal responsibility and give them a chance, when they do get out, to not to [sic] be burdened with children.”

Even worse, Judge Benningfield’s standing eugenics order has apparently been on file since May 15, 2017—meaning that an untold number of lawyers, judges, doctors, and law enforcement personnel have either acquiesced to it or simply turned a blind eye in the face of a policy that the Rome Statute of the International Criminal Court designates as a crime against humanity.

To be absolutely and unequivocally clear: eugenics is illegal.  In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

The framing of Judge Benningfield’s eugenics program as a “voluntary sentencing reduction” is also deeply troubling.  It is not.  Simply stated: In White County, Tennessee, any inmate who refuses to be sterilized is punished with an additional 30 days in jail.

Such a program is profoundly coercive—especially for defendants convicted of minor crimes who may avoid jail time entirely if they submit to sterilization.  Anyone familiar with the criminal justice system knows that this length of time is sufficient to send a person’s life into disarray, because an extra month in prison can and frequently does result in job loss, loss of one’s home, or loss of one’s children.  Of note, under Tennessee law, everyone is also at risk of being imprisoned for 30 days at any time for even the slightest traffic infraction based on law enforcement’s discretion.

In addition to its rank illegality and immorality, it goes without saying that using the coercive power of the state to promote sterilization also has severe potential for abuse.  As a historical matter, eugenics programs always target disfavored minorities—from Jews in Nazi Germany to black men in Tuskegee, Alabama.  Firmly in keeping with this tradition, Judge Benningfield’s eugenics program is reserved for White County inmates and apparently targets those suffering from drug addiction.  In this regard, it is no less disgusting.

Judge Benningfield’s eugenics program is an outrage.  He need not serve on the bench any longer, and he need not keep his law degree any longer.  Infuriatingly, this also is not the first time that an officer of the Court who has been charged with upholding the law has implemented a (very recent) sterilization program in Tennessee—a fact that is similarly unconscionable in its own right.  If Tennessee’s administrators of the practice of law took a fraction of the effort that they’ve expended trying to prevent qualified immigrants from taking the bar exam and redirected it toward removing people like Judge Benningfield from the profession, perhaps further abuses like this would be avoided.

Compounding the outrage is that nobody has yet filed suit over Judge Benningfield’s eugenics program during the two months that it has been in effect.  Whether initiated by the ACLU, a public defender, or a private defense attorney, such a lawsuit needed to be filed yesterday.  If you or a client of yours is affected by White County’s eugenics program and you want assistance pursuing the case, please feel free to contact me at daniel.a.horwitz@gmail.com.  I will gladly take the case pro bono and donate the proceeds to the Holocaust Museum and the Tuskegee History Center.  A program like this violates what the United States Supreme Court has declared to be “one of the basic civil rights of man,” and nobody—least of all the Bar—should tolerate it.

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Defamation Lawsuit Filed Against Restaurateur Randy Rayburn Dismissed in Full

The defamation lawsuit filed against beloved Nashville restaurateur Randy Rayburn has been dismissed outright by Davidson County Circuit Court Judge Kelvin Jones.  The costs of the lawsuit were also assessed against Plaintiff Tom Loftis, the aggrieved former director of The Randy Rayburn School of Culinary Arts at Nashville State Community College, who had sued Mr. Rayburn for a whopping $1.5 million over a March 2, 2016 Tennessean article that had reported that the program was turning out unqualified students.

The lawsuit, first reported by the Nashville Business Journal, drew national media coverage due in part to its “extraordinarily innocuous subject matter.”  According to one media outlet, the lawsuit’s “attempt to fashion a libel lawsuit out of nothing bears far more resemblance to those filed by plaintiffs with fools for lawyers.”  The Plaintiff in the case was represented by Nashville attorneys Gary Blackburn and Bryant Kroll.

In his verbal ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.”  Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.”  Finding that Mr. Loftis’s Complaint could not satisfy these basic standards even at the motion to dismiss stage, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation.

Said Daniel Horwitz, Mr. Rayburn’s lead counsel: “We are pleased that this baseless lawsuit has come to a quick and much-deserved end.  The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media.  We are grateful that Judge Jones dismissed this frivolous lawsuit at its first appearance, and we are thrilled that Mr. Rayburn will be able to recommit his full attention to doing what he loves: running wonderful restaurants, serving his community, and feeding delicious food to his grateful patrons.”

Documents from the case and selected media coverage are available below.

###

Case Documents:

Plaintiff’s First Amended Complaint

Defendant’s Motion to Dismiss First Amended Complaint

Plaintiff’s Response to Motion to Dismiss (1)/Plaintiff’s Response to Motion to Dismiss (2)

Defendant’s Reply to Plaintiff’s Response

Order Dismissing Plaintiff’s Complaint

Plaintiff’s Notice of Appeal

Selected Media Coverage:

-Nashville Business Journal: Nashville restaurateur Randy Rayburn faces $1.5 million lawsuit

-TechDirt: Former University Official Files Libel Lawsuit Against His Replacement For Things A Journalist Said

-Nashville Business Journal: Judge dismisses $1.5M suit against well-known restaurateur

 

 

Tennessee Supreme Court Holds That HIPAA Authorizations Need Not Be Provided in Single-Defendant Medical Malpractice Cases

By Daniel A. Horwitz

In the most recent chapter of the seemingly endless litigation over Tennessee’s medical malpractice statute (known as the “Tennessee Health Care Liability Act,” or “HCLA”), the Tennessee Supreme Court has held that plaintiffs need not include a HIPAA-compliant authorization form in their pre-suit notice packages if only one defendant is being sued.  Thus, in single-defendant medical malpractice cases, the Court’s holding operates to remove one of the many landmines that medical malpractice plaintiffs must navigate in order to get through the courthouse door.

“In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to [medical malpractice] claims.”[1]  In theory, the myriad pre-suit notice requirements contained in the HCLA are intended to “allow[] health care providers to evaluate the merits of potential health care liability claims before a suit is commenced, facilitat[e] communication among the parties, and encourage[e] early settlement negotiations.”[2]  In practice, however, these procedural requirements operate “as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds.”[3]  Consequently, in one of his prior publications, this author has characterized the HCLA’s pre-suit notice requirements as “red tape with fangs.”[4]

One pre-suit notice requirement of the HCLA—codified at Tenn. Code Ann. § 29-26-121(a)(2)(E)—compels plaintiffs to provide prospective medical malpractice defendants with “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”[5]  In Bray v. Khuri—a wrongful death case involving a patient who committed suicide while receiving in-patient psychiatric care—Tennessee’s Court of Appeals held that the medical authorization form that the decedent’s surviving spouse had provided in her pre-suit notice package had not been HIPAA-compliant.  As a result, the Court of Appeals held that the plaintiff’s lawsuit had to be dismissed outright before it could even begin.

On appeal to the Tennessee Supreme Court, the Bray plaintiff argued that whether or not her medical authorization form had complied with HIPAA (something that the parties disputed), she was not even required to comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) because there was only a single defendant in the case.  Intuitively, the argument had substantial force.  If the purpose of Tenn. Code Ann. § 29-26-121(a)(2)(E) is to ensure that defendants could “obtain complete medical records from each other provider being sent a notice,” the plaintiff’s argument went, then it is difficult to imagine how or why this requirement would apply when there isn’t any “other provider being sent a notice” at all.[6]

In response, the defendant in Bray argued that compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E) is necessary even when just a single provider is sued because defendants are prohibited from discussing potential lawsuits with their attorneys unless they have received a HIPAA-compliant authorization form.  Specifically, the defendant argued, “HIPAA prohibits the disclosure of a patient’s medical records to counsel for evaluating the merits of a potential claim absent a valid medical authorization.”[7]

Flatly rejecting this argument, the Tennessee Supreme Court noted that “HIPAA regulations allow a healthcare provider to ‘use or disclose protected health information for treatment, payment, or health care operations,’” and that in turn, federal regulations expressly define “health care operations” to include “[c]onducting or arranging for legal services.”[8]  The Court further noted that:

The United States Department of Health and Human Services (“HHS”), in its Frequently Asked Questions (“FAQ”) for Professionals pages of its website, indicates that a healthcare provider may use or disclose protected health information for litigation “whether for judicial or administrative proceedings, . . . or as part of the covered entity’s health care operations.”  HHS further recognizes that “[i]n most cases, the covered entity will share protected health information for litigation purposes with its lawyer, who is either a workforce member or a business associate.” HIPAA regulations define a “business associate” to include a person who provides legal services to or for a healthcare provider.[9]

Thus, the Tennessee Supreme Court concluded that “HIPAA does not require [defendants] to obtain a medical authorization to use a patient’s medical records in [their own] possession,” and that such records may be used to “consult with counsel to evaluate the merits of a potential claim” even without authorization from a patient.[10]  As such, because neither the text nor the purpose of Tenn. Code Ann. § 29-26-121(a)(2)(E) indicated that it applied to medical malpractice cases involving just a single defendant, the Tennessee Supreme Court reversed the lower court’s ruling and permitted the plaintiff’s lawsuit to move forward.

The Court’s sensible and straightforward ruling in Bray represents a small victory for a narrow subset of medical malpractice plaintiffs in Tennessee.  As a whole, however, the larger problems with the statute persist.  It has been more than a hundred years since Roscoe Pound, the preeminent former Dean of Harvard Law School, condemned the “sporting theory of justice” that was in vogue during the 19th and early 20th centuries, when lawsuits turned on whether “the rules of the game been carried out strictly” rather than on what “substantive law and justice require.”[11]  Since then, the legal system has evolved to reflect the broader understanding that “dismissals based on procedural grounds . . . run counter to the judicial system’s general objective of disposing of cases on the merits.”[12]  Regrettably, however, in the realm of medical malpractice liability, the “sporting theory” of justice has largely returned to prominence in Tennessee.

Read the Tennessee Supreme Court’s unanimous decision in Bray v. Khuri, authored by Justice Sharon Lee, here.

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[1] Daniel A. Horwitz, All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court, ScotBlog (Dec. 7, 2015), available at  http://scotblog.org/2015/12/all-claims-related-to-the-provision-of-health-care-are-now-governed-by-the-health-care-liability-act-holds-tennessee-supreme-court/.

[2] Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 564 (Tenn. 2013).

[3] Id.

[4] See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at http://issuu.com/nbanikki/docs/nbjjune15/17.

[5] Tenn. Code Ann. § 29-26-121(a)(2)(E).

[6] Tenn. Code Ann. § 29-26-121(a)(2)(E) (emphasis added).

[7] Bray v. Khuri, __ S.W. 3d __, __ (2017), No. W2015-00397-SC-R11-CV (July 5, 2017), available at http://www.tba.org/sites/default/files/brayd_070517.pdf?fid=16e9ebec9f8d4e9e754ea118283ffe7c1c180148.

[8] Id. (citing 45 C.F.R. § 164.506(a); 45 C.F.R. § 164.506(c)(1)).

[9] Id. (citing HIPAA for Professionals FAQ 705,HHS (Jan. 7, 2005), https://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legalproceeding-use-protected-health-information/index.html).

[10] Id.

[11] See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap 8, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577156 (citing Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, Address at American Bar Association Convention (Aug. 26, 1906), available at 35 F.R.D. 273, 282 (1964)).

[12] Id. (quoting Bowers, 2003 WL 22994302 at *5; see also Childress, 816 S.W.2d at 316 (noting that “it is the general rule that courts are reluctant to give effect to rules of procedure . . . which prevent a litigant from having a claim adjudicated upon its merits.”)).

All Briefs Are Now Filed In the Case of the “Obviously Very, Very Qualified” Vanderbilt Law Student Prevented from Taking Bar Exam

By Daniel Horwitz:

Briefing is officially complete in Gluzman v. Tennessee Board of Law Examiners—the case of the “obviously very, very qualified” Vanderbilt Law School student who graduated Vanderbilt with an eye-popping 3.919 GPA but was still denied even the opportunity to take the Tennessee bar exam because he earned his undergraduate degree and his first law degree in his birth country of Argentina.  The case is now awaiting a ruling from the Tennessee Supreme Court.

While his case has been pending, Mr. Gluzman took and passed the New York bar exam on his first attempt.  However, rather than uprooting his family unnecessarily, he still hopes to be able to take the bar exam in Tennessee and practice law near his wife’s business in Memphis.

The briefing in Gluzman v. BLE features the involvement of three leading national conservative groups, which have argued that the Board’s crippling regulations violate Mr. Gluzman’s fundamental right to earn a living free from irrational government overreach.  Tennessee’s two flagship law schools—Vanderbilt Law School and the University of Tennessee College of Law—also filed petitions in the case after seeing students disenroll from their law programs once the Board began implementing its new protectionist regulations.  All parties’ briefs in the case are available below.

Petitioner Maximilano Gluzman’s Principal Brief

Brief of Respondent the Tennessee Board of Law Examiners

Petitioner Maximiliano Gluzman’s Reply Brief

Brief of Amici Curiae The Beacon Center, Cato Institute, and Goldwater Institute

Petition of Vanderbilt Law School and University of Tennessee College of Law

Mr. Gluzman’s battle against the Tennessee Board of Law Examiners has attracted national media attention due in part to the Board’s refusal to permit Mr. Gluzman and other lawyers “from the vast majority of countries around the world” from ever being able to take the Tennessee bar exam regardless of their qualifications.  In Mr. Gluzman’s case, the Board’s policy is also particularly difficult to justify, because the Board itself has formally acknowledged that Mr. Gluzman is “obviously a very, very qualified person.”  Selected news coverage about the case is available below.

-Nashville Post: Argentine lawyer challenging Tennessee Board of Law Examiners

-Nashville Post: National conservative groups join local bar fight

-Above the Law: State Bars Foreign Student From Bar Exam — Next Stop, State Supreme Court

-ABA Journal: Vanderbilt law prof who taught Argentine LLM student backs his bid to take the bar exam

-The Tennessean: How Tennessee discriminated against a talented Vanderbilt law grad

-Cato At Liberty Blog: Even Lawyers Have the Right to Earn an Honest Living

-Beacon Center Blog: Banned From the Bar Exam

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It’s all fun and games until someone gets arrested: Predators fan charged for catfish toss

By Daniel Horwitz:

In an absolutely outrageous abuse of law enforcement authority, Pittsburgh police are celebrating the fact that they have just filed criminal charges against a Nashville Predators fan for tossing a catfish onto the ice during game one of the Stanley Cup finals.  Until the inevitable change of course—when law enforcement claims that this was all just an innocent misunderstanding that was really meant to be a joke—the culprit faces criminal prosecution for: (1) possessing instruments of crime (specifically: a catfish); (2) disorderly conduct (catfish throwing); and (3) disrupting meetings and processions (of a hockey game, for Chrissake, where throwing hats on the ice is, on appropriate occasions, part of the Fans’ Code of Conduct).

At the time, the fan’s successful execution of the beloved 14-year-old Nashville hockey tradition—originally inspired by Detroit Red Wings fans, who have been tossing octopuses on their home ice for more than half a century—was met with widespread merriment.  Local superstar Carrie Underwood, who also happens to be the wife of Predators Captain Mike Fisher, adoringly tweeted that the culprit was her “hero”—instantly generating agreement from 10,000 approving fans.  Sports Blog Nation called on hockey lovers to “embrace the catfish” after it inspired the Preds’ furious comeback from a 3-0 first period deficit.  Local Nashville politics writer Steven Hale correctly observed that the tosser “should not pay for a drink the rest of the series.”  In sum: with just one exception, every non-marine creature and non-PETA member in the Animal Kingdom who witnessed the stunt enjoyed it, and nobody (except the catfish) was hurt.

Unfortunately, that one exception happens to be the Pittsburgh Police Department, whose officers—in addition to carrying badges and guns—apparently have the world’s worst judgment and the sense of humor of a Columbian drug cartel.  The statutes that Jacob Waddell is currently accused of violating can be found here, here, and here, respectively.  His “possessing instruments of a crime” charge alone appears to carry up to five years in prison and a $10,000.00 fine.  Hilarious indeed.

Many have responded (appropriately) by mocking the Pittsburgh Police for their outrageousness here.  Fittingly, those trolling the department even include the Tennessee Bureau of Investigation, which published a photo of the offending “criminal instrument” on the ice along with the note that: “We’ve seen a lot of ‘instruments of crime’ over the years. Can’t honestly say we’ve seen a case with one of these.”  “Instrument of Crime” t-shirts emblazoned with a wriggling catfish have already popped up online, and several members of Nashville’s Metro Council are in the midst of drafting a resolution calling for Mr. Waddell to be pardoned.  Generally speaking, everyone’s having a good laugh at Pittsburgh’s expense, which its Police Department rightly deserves in spades.

Lost in much of the mockery, however, is the more serious significance of the Pittsburgh Police Department’s misconduct here.  There is no such thing as an insignificant criminal charge.  People who have a criminal record—a list of more than 65 million Americans that now includes at least one harmless catfish tosser—are all instantly subject to legal discrimination in employment, housing, and other areas of civic life.  If Mr. Waddell ever applies for a new job, for example, many employers will require him to check a box indicating that he has previously been charged with a crime, and few will ever give him the opportunity to explain why.  His mugshot will be a public record.  If he ever seeks to become an attorney or a member of another highly regulated profession, Tennessee’s famously unreasonable Board of Law Examiners could deny him the opportunity based on “lack of character and fitness” attributable to his charges.  Altogether, a state-by-state inventory cataloging the tens of thousands of collateral consequences that Mr. Waddell now faces in each state as a result of his criminal charges can be accessed here.

To be clear: Mr. Waddell did not actually possess anything that can reasonably be construed as an instrument of a crime.  The Pittsburgh Police also don’t initiate mass disorderly conduct arrests or “disrupting meetings and processions” arrests after Sidney Crosby hat tricks—indicating rather persuasively that they don’t traditionally consider throwing items onto the ice to be criminal acts.  So why, exactly, did this happen?  The answer, quite literally, is that Mr. Waddell was charged with multiple crimes because he was an opposing fan who was carrying out a harmless Predators fan tradition.  The fact that the Pittsburgh Police inexplicably thought their arrest would be so popular that they touted it in a press release makes this an especially pointed example of the kind of abuse and massive overcriminalization that has been creeping into American jurisdictions for decades.  Tragically, though, examples of such overcriminalization are far from isolated.

Ultimately, this situation will resolve itself because the poor PR that it has generated demands it.  After the smoke clears, though, the hapless officers of the Pittsburgh Police Department will continue to arrest people for harmless, minor crimes that serve to ruin their lives forever—and they will not be alone in doing so.  And that, unfortunately, is no laughing matter.

Update 1: The Mayor of Pittsburgh has released a statement making light of the situation as well.  It reads: “This has turned into a whale of a story.  From my perch, I agree with Mayor Barry that we shouldn’t be baited into interfering with this fish tale, but if the charges eventually make their way to a judge I hope the predatory catfish hurler who got the hook last night is simply sentenced to community service, perhaps cleaning fish at Wholey’s.”

Update 2: The Pittsburgh District Attorney has dropped all charges.  From The Tennessean: “‘Having reviewed the affidavit involving Mr. Waddell as well as the television coverage of the incident, District Attorney Zappala has made the determination that the actions of Mr. Waddell do not rise to the level of criminal charges,’ a statement from Allegheny County District Attorney spokesman Mike Manko reads.”

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New Law Reduces Tennessee’s Expungement Fee for Convictions from $450 to $280

By Daniel Horwitz:

A new law that reduces the total cost of expunging a conviction from $450 to $280 was officially signed by Governor Haslam on May 25, 2017.  The new law, sponsored by Representative Raumesh Akbari (D-Memphis) and Senator Mark Norris (R-Collierville), takes effect immediately.

Until yesterday, Tennessee had the third-highest expungement fee in the entire country.  Regrettably, even if a person is indigent, Tennessee also does not allow expungement fees to be waived—meaning that expungement still remains out of reach for many of the people who need it most.  However, reducing the total cost of expunging a conviction by nearly 40% will significantly improve access to expungement for those who are eligible to have their charges cleared.  As a result, this reform should be universally applauded.

In Tennessee, people whose charges were dismissed are eligible to have their records expunged for free.  However, only some convictions are eligible to be expunged.  If a person was convicted of a felony, then the person may be eligible for expungement if their charge appears on this list.  If a person was convicted of a misdemeanor, then the person may be eligible for expungement if their charge does not appear on this list.  Based on a new law enacted on May 5, 2017, some people with exactly two eligible convictions can now get both of their charges expunged as well.  Additional details on that new “double expungement” law are available here.

If you think you may be eligible to have your record expunged and want to hire an attorney to file your paperwork for you, please click here.

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Tennessee Supreme Court Holds that Divorce Contracts Must be Enforced as Written

By Daniel Horwitz:

In a common-sense opinion that clarified a muddled conflict among lower courts, the Tennessee Supreme Court has held that fee-shifting provisions in divorce agreements must be enforced as written.  Offering a forceful defense of the right to contract, Chief Justice Bivins’ unanimous opinion in Eberach v. Eberach instructs all lower courts that they do not have any discretion to deny attorney’s fees to a prevailing party if a contract agreed to by both parties makes such an award mandatory.

Eberach involved litigation between a former husband and wife following their divorce.  In 2011, the couple divorced and entered into a “marital dissolution agreement,” or “MDA.”  In lay terms, an MDA is a binding contract that sets out the terms of a divorce.  Among other things, the parties’ MDA provided that:

“In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.”

Three years later, the ex-couple found themselves embroiled in litigation over the wife’s plan to relocate to Ohio with their three children.  Ultimately, the trial court granted the wife permission to move to Ohio and awarded her $20,000.00 in attorney’s fees.  Thereafter, the trial court’s decision was affirmed by the Court of Appeals, which upheld both the relocation and the trial court’s fee award.  However, the Court of Appeals declined to award the wife additional compensation for the attorney’s fees that she had incurred on appeal.

Upon review, the Tennessee Supreme Court observed that various tribunals of the Court of Appeals had “been inconsistent in their analysis of claims for attorney’s fees in cases in which the claim is based on a contractual provision in a MDA.”  One line of cases held that appellate courts have discretion to deny attorney’s fees to a prevailing party “even in the face of a controlling contractual fee provision requiring such an award.”[1]  Another line of authority held that “when a MDA fee provision mandates an award of attorney’s fees to the prevailing party, the Court of Appeals does not have discretion to deny an award of appellate attorney’s fees.”[2]  Additionally, a third line of cases “observed that an award of appellate attorney fees in Tennessee is within the court’s sound discretion,” but then went on “to award attorney’s fees on appeal solely on the basis of the parties’ MDA fee provisions without further discussion.”[3]

Clarifying this conflicting precedent, the Tennessee Supreme Court instructed with unmistakable clarity that “parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement that provides the prevailing party in a [lawsuit] is entitled to such fees.”   “In such cases,” the Court explained, trial courts “do[] not have the discretion to set aside the parties’ agreement and supplant it with its own judgment.”  The Court further instructed that “[t]he same is and must be true of our appellate courts.”  Thus, “[a]bsent fraud, mistake, or some other defect, our courts are required to interpret contracts as written.”

As a general matter, litigants in the United States must pay their own attorney’s fees regardless of whether they win or lose.  Under this so-called “American Rule”—to which Tennessee adheres—“a party in a civil action may recover attorney’s fees only if: (1) a contractual or statutory provision creates a right to recover attorney’s fees; or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case.”[4]  “Otherwise,” as the Eberach court observed, “litigants are responsible for their own attorney’s fees.”  Of note, the general presumption that parties must bear their own legal fees places the United States at odds with the legal regimes of many European nations, which generally adhere to a “loser pays” framework.

The most common exception to the American rule is a private agreement between parties which provides that in the event of litigation, the loser must pay the winner’s attorney’s fees.  Significantly, in Eberach, the husband and wife had executed such an agreement.  Thus, the only question presented in Eberach was whether the Court of Appeals was required to enforce it.

Emphatically answering this question in the affirmative, the Court’s opinion in Eberach furthers Tennessee’s longstanding commitment to protecting the right to contract.  In Tennessee, the right to contract has constitutional origins, and it is enforceable as a fundamental right.[5]  Tennessee statutory law also provides that: “All contracts, . . . in writing and signed by the party to be bound, . . .  shall be enforced as written.”[6]  In keeping with this tradition, the Eberach court explained that “one of the bedrocks of Tennessee law is that our courts are without power to make another and different contract from the one executed by the parties themselves.”  As such, the Court mandated that the terms of the husband’s and wife’s MDA be enforced.

Having resolved that the wife was entitled to attorney’s fees for her successful litigation in the Court of Appeals, the Court then remanded the case to the trial court to “determine the appropriate amount of Wife’s reasonable attorney’s fees on the appeal.”  Additionally, applying its just-announced holding to itself, the Tennessee Supreme Court also explained that the attorney’s fee award must cover the costs of the wife’s appeal “to this Court” as well.  Thus, going forward, litigants in Tennessee—and divorcees in particular—can have renewed faith that the terms of their contracts will, in fact, be enforced as written.

Read the Court’s unanimous opinion in Eberach v. Eberach here.

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[1] See Grisham v. Grisham, No. W2010- 00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding that the trial court erred in failing to award wife her reasonable trial court attorney’s fees pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award of trial court fees under the parties’ MDA, but equitably denying wife’s request for appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees); Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn. Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA, but equitably declining to award either party attorney’s fees incurred on appeal).

[2] See, e.g., Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct. App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7 (Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473, at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COAR3-CV, 2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v. Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July 30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level proceedings pursuant to the parties’ MDA).

[3] Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013); (citing Archer, 907 S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051- COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its discretion then awarding fees on appeal based on the parties’ MDA requiring that the “court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”) (alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015 WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of fees pursuant to the parties’ MDA, stating its discretion and determining that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No. M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012) (holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the parties’ MDA, but using its discretion and concluding that Mother was justified in recovering attorney’s fees).

[4] Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359; John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)).

[5] See Tenn. Const. art. XI, § 2; Tenn. Const. art. I, § 20.  See also ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (“equity respects and upholds the fundamental right of the individual to complete freedom to contract”) (quotation omitted).

[6] Tenn. Code Ann. § 47-50-112(a).

Nashville Scene: “The Tennessee Supreme Court Keeps Reversing Itself, and Criminal Defense Attorneys Are Worried”

Via Stephen Elliot, The Nashville Scene: (link)

In 2012, the Tennessee Supreme Court ruled that a defendant who pleads guilty to a crime can appeal the judgment if exculpatory evidence is discovered later.

Four years later, the same court changed its mind.

What occurred in the intervening four years to necessitate such a pivot by the state’s highest court? Nothing, according to Justice Sharon G. Lee.

. . . .

“Since 2014, the Tennessee Supreme Court has aggressively sought to federalize Tennessee law by striking down state-specific protections that prior iterations of the court had developed under Tennessee’s state constitution and civil rules,” says Daniel Horwitz, a Nashville attorney and the editor of ScotBlog, a website devoted to the state Supreme Court. “A few significant state-level protections still remain. However, given that prior precedent — no matter how recent or firmly established — has had virtually no influence on the Tennessee Supreme Court’s decisions to overturn its previous rulings, it stands to reason that these protections are vulnerable to being abandoned as well.”

Read more: http://www.nashvillescene.com/news/features/article/20857900/the-tennessee-supreme-court-keeps-reversing-itself-and-criminal-defense-attorneys-are-worried

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February 2017 Tennessee Bar Results: Vanderbilt 100%, NSL 36%, Others Hover around 50%

It’s that time of year again, and the February 2017 bar exam results are out.  378 law school graduates took the February 2017 exam, which had an overall passage rate of 47%.  Applicants from Tennessee’s law schools[1] fared as follows:

Vanderbilt remained on top with a 100% passage rate for both first-time takers and re-takers.  By contrast, Nashville School of Law brought up the rear again with an overall passage rate of just 36% (a respectable 55% of NSL’s first-time takers passed the exam, but 76% of NSL’s re-takers failed it).  Belmont, Memphis, and UT boasted overall passage rates of 58%, 54%, and 50%, respectively.  Complete results from the February 2017 exam appear below.

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[1]  Because only one Duncan student took the exam, Duncan is omitted from this analysis, but Duncan’s only taker was unsuccessful.