Breeding Henry Baysan

Knoxville Legal Blog

First right of refusal clauses change custody agreements

Both you and your children's other parent want the best for them. Nonetheless, parenting in a post-divorce family can be extraordinarily challenging. If your ex-spouse is frequently unable to care for your kids during his or her scheduled visitation time, you may want to add a first right of refusal clause to your custody agreement

Put simply, a first right of refusal provision requires your former spouse to offer you the ability to care for your kids in his or her absence. While these clauses are not right for every co-parenting situation, they have the following three major advantages.

Tennessee is bringing in the New Year with new laws in 2019

Tennessee is bringing in the New Year with new laws in 2019. The changes in the law are numerous, expanding from laws affecting motor vehicles to laws that affect water pollution. Tennessee has about 31 new laws that became effective as of January 1, 2019, and several of the laws effect, in one way or another, some controversial topics.

Laws governing abortion are affected by some of the newly enacted laws. HB 0108 now requires abortion cases where an ultrasound is performed as part of an examination prior to an abortion, the person who performs the ultrasound must now offer the woman the opportunity to learn the results of the ultrasound. Additionally, if an ultrasound is performed prior to the termination of the pregnancy, the report of abortion must indicate whether a heartbeat was detected. Tenn. Ann. Code §39-15-203

Are you committing white-collar crime?

Many employees who get caught committing white collar crime are first-time offenders who have never been through the criminal justice system. It can often happen that an employee simply assumes that what he or she is doing is not really a crime, perhaps because the employee does not perceive his or her actions to be serious enough to warrant getting noticed.

The truth, however, is that even small amounts of theft or fraud are technically white-collar crimes. Acts you may consider to be insignificant could actually be criminal. If that is the case and your employer or other employees catch you in the act, you could face serious consequences. The best way to protect yourself from unwittingly committing fraud or other types of white-collar crime is to inform yourself about the most common types of workplace embezzlement.

Time Is Of The Essence: What You Should Know About Filing Medical Malpractice Claims in Tennessee

Blog by: Monica M. Cacace, Esq.
Tennessee and Florida Licensed Attorney
Breeding Henry Baysan PC
Knoxville, TN Office

If you believe you are a victim of Medical Malpractice which occurred in Tennessee, the most important thing you should know is that you have ONE (1) YEAR TO FILE A LAWSUIT OR ELSE YOUR RIGHT TO SUE EXPIRES! One year can pass by very quickly so you should act immediately after you have discovered the medical malpractice.

Medical Malpractice Investigations Takes Time

If you want to hire a lawyer to represent you in your claim for medical malpractice, you should seek a legal consultation as soon as practical after the medical malpractice has occurred to allow the lawyer or team of lawyers sufficient time to investigate your claim. An investigation into a medical malpractice claim takes time. If you happen to have all the medical records associated with the medical malpractice, it may take a few weeks to a few months for a lawyer to thoroughly review your case. If you do not have any medical records, they will have to be ordered, and this could increase the investigation time by at least thirty (30) days. An investigation into your claim usually cannot take place until the medical records are available for the lawyer's review.

Once the lawyer reviews your medical records and finds that a medical malpractice may have occurred, the lawyer will likely submit your medical records to a medical expert for further evaluation. The medical expert should be a medical professional that has the same field of expertise as the medical professional alleged to have committed the medical malpractice. For example, if an OBGYN committed the medical malpractice, then an OBGYN should be hired as the medical expert. There are many experts available around the country but locating a local expert may take time as some may be defense experts, others may personally know or are competitors with the medical professional who committed the medical malpractice, etc. Give yourself and/or your lawyer sufficient time to investigate the claim. Lawyers may be hesitant to take on your case if you only have 30 days left to file a lawsuit even though you may have a great case, simply because they won't have enough time to evaluate it.

Changes in Tennessee Law Regarding Parent Relocation:

In July of 2018, the Tennessee statute which governs relocation of a parent with a minor child was amended. After custody or co-parenting has been established by the entry of a permanent parenting plan or final order, a parent who wishes to relocate outside the state or more than fifty (50) miles from the other parent within the same state, must send notice to the non-relocating parent at least sixty (60) days prior to moving with the child.

The notice requirements under the statute remain the same. The notice must contain: "(1) a statement of intent to move; (2) location of proposed new residence; (3) reasons for proposed relocation; and (4) statement that absent agreement between the parties or an objection by the non-relocating parent within thirty (30) days of the date notice is sent by registered or certified mail in accordance, the relocating parent will be permitted to do so by law." Tenn. Code Ann. § 36-6-108.

Breach of Peace

Creditors that have entered into a valid security agreement with debtors do have the right to self-help repossession when such a debtor defaults. In this instance, the creditor can bypass the court system and take matters into their own hands to regain possession of their collateral. This rule is encompassed by the Uniform Commercial Code and furthermore adopted by the State of Tennessee in Tenn. Code Ann. § 47-9-609(b)(2). That being said, creditors often do not apply the proper procedures and may unknowingly open up the possibility of being sued as a result of repossessing the collateral subject to the security agreement.

In order to properly repossess collateral that is subject to a security agreement, a creditor cannot "breach the peace." While it is likely obvious that a breach of the peace would encompass some type of violent act, such as pushing, fighting or some other outrageous encounter between the debtor and creditor (similar to what is seen on television shows), it is actually fairly easy for a breach of the peace to occur. All it takes to be considered a breach of the peace is for the debtor to orally protest or object to the creditor's repossession of the collateral, physical violence is not necessary. For example, if a creditor went to repossess a debtor's car and the debtor were to merely say "no," but the creditor continued to carry out the repossession, the creditor could be found guilty of breaching the peace.

Child custody when one parent has a disability

Millions of parents in the United States suffer from disabilities, which can include physical, emotional and intellectual disabilities. Although parents with disabilities can absolutely serve as great caregivers for their children, it is essential to anticipate issues with child custody when going through a divorce

Tennessee has laws on the books that state a parent with disabilities may lose some child custody rights based on the disability. The laws are not as extreme as they are in other states, such as South Carolina and Oklahoma, where a parent's rights can go away entirely based solely on the disability. However, they can still cause problems. 

Conservatorships vs. Guardianships

Under Tennessee law, a Conservator is "a person or persons or an entity appointed by the court to exercise the decision-making rights and duties of the person with a disability in one or more areas in which the person lacks capacity as determined and required by orders of the court." Tenn. Code Ann. §34-1-101(4)(B). Similar to a conservator, but not quite the same, is a Guardianship. In Tennessee a Guardian, or coguardian, is defined as "a person or persons appointed by the court to provide partial or full supervision, protection and assistance of the person or property, or both, of a minor." Tenn. Code Ann. §34-1-101(10). It is important to realize the difference between a Conservator and a Guardian. A Conservator protects any person, regardless of age, who is disabled in a way that affects their capacity. A guardianships purpose is to protect a minor child; they automatically do not have capacity based on their age.

Limited Liability Companies: The Crowd Favorite of Business Entities

As a business, or individual looking to conduct business, one may be faced with the challenge of deciding what will be the most useful, profitable, and practical instrumentality to conduct such business. Historically, entrepreneurs had a few choices in business entities, none of which offered much versatility in comparison to the modern Limited Liability Company. These earlier, more unpopular, business classifications include, Limited Liability Partnerships, Limited Partnerships, and Limited Liability Limited Partnerships, all of which offered lucrative, yet sometimes complex, benefits. In today's businesses the relatively new Limited Liability Company, or LLC, has proven to be one of the most favorable business entities for its preferential tax treatment and the liability shield it provides to its members.

Aretha Franklin had no will on her $80 million-dollar estate.

The unfortunate passing of "The Queen of Soul", Aretha Franklin, has left her fans grieving, but has left her grieving family to divide her estimated $80 million-dollar estate without the help of an estate plan. Aretha Franklin passed away intestate, in other words, without a will. This means the state in which she is domiciled will determine the distribution of her estate through the state's intestacy laws.

There are many advantages to having a will as opposed to dying intestate. The first, is saving time and money when distributing your assets. The process of probate without a will, can potentially be a lengthy and expensive process, and the costs are typically paid out of the estate. With a will, the Probate Court will more likely have an easier time distributing your assets, because the assets and who they are being distributed to, will be set forth in the will document, helping prevent any potential disputes of who should get what assets. As a result of a speedier probate process, less money will be spent for attorney fees, executor/ administrator fees, accountant fees, and the like, potentially saving your descendants more money by taking less money away from the estate.

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