Bar groups band together for IOLTA, petition high court

The Tennessee Bar Foundation, Tennessee Bar Association, Tennessee Association for Justice (formerly TTLA) and the Tennessee Alliance for Legal Services today petitioned the Tennessee Supreme Court to make Tennessee's IOLTA (Interest on Lawyers Trust Accounts) program comprehensive and to enhance the requirement that banks treat IOLTA accounts on parity with similar accounts. Tennessee would join 38 other states in requiring that trust accounts with small amounts of client funds or funds expected to be held for a short duration be deposited in accounts with the interest going to fund legal aid and other important projects.

"We believe this is a very important initiative that will in time produce critically needed additional grant money for the cause of equal access to justice at a time when so many of our fellow Tennesseans are in dire need of legal assistance," TBA President Buck Lewis said. Interest rate comparability standards have been adopted in 23 states. If approved by the Court, the rules changes would take effect Jan. 1, 2010.

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Court: TSC


Joseph Allen Kelly, Nashville, Tennessee; Susan A. Kidwell, Austin, Texas; and Kurt M. Carlson, Chicago, Illinois, for the petitioner, Reassure America Life Insurance Co.

Robert H. Waldschmidt, Nashville, Tennessee, for the respondent, Robert H. Waldschmidt, Trustee.

Judge: KOCH

This appeal involves a question of law concerning the interpretation of Tenn. Code Ann. section 56-7-2303 (2008) certified by the United States Bankruptcy Court for the Middle District of Tennessee. The bankruptcy court has asked this Court to determine whether the issuer of a deceased debtor's life insurance policy was exempted under Tenn. Code Ann. section 56-7-2303(d) from the statutory notice requirements for lapsed life insurance policies because the premium payments on the policy were being paid monthly. We hold that the plain language of Tenn. Code Ann. section 56-7-2303(d) exempts from the notice requirements in Tenn. Code Ann. section 56-7-2303(a) "any policies upon which premiums are payable monthly or at more frequent intervals." Based on the undisputed facts, the premiums for the debtor's life insurance policy were "payable monthly." Therefore, the issuer of the policy was not required to give either the debtor or the trustee the notice required by Tenn. Code Ann. section 56-7-2303(a), and the policy lapsed in accordance with its terms before the debtor's death.


Court: TCA


Jeffrey M. Atherton, Chattanooga, Tennessee, for the appellant, Khalid Hashmi dba Light

Investment Kenneth O. Fritz, Chattanooga, Tennessee, for the appellee, City of Chattanooga


This appeal involves the efforts of the plaintiff, Khalid Hashmi ("the Owner"), to prevent the demolition by the City of Chattanooga ("the City") of a block building ("the subject building") located at 4201 Fagan Street, Chattanooga. The Owner bought the property at a tax sale in 2005. In the trial court, following several hearings, the court dissolved a restraining order the Owner had obtained against the City. The order dissolving the restraining order permitted the City to demolish the plaintiff's building subject to certain conditions. The Owner appeals. We affirm.


Court: TCA


Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Mickel G. Hoback.

Barrett T. Painter, Cleveland, Tennessee, for the appellee, Lisa Faye Keener Hoback.


Mickel G. Hoback ("Father") and Lisa Faye Keener Hoback ("Mother") were divorced in 2006. The parties have a daughter who is six years old. In the divorce judgment, the trial court adopted a permanent parenting plan submitted by the parties which designated Father as the primary residential parent and set forth Mother's co-parenting time. Soon thereafter, Father filed a petition seeking to suspend Mother's co-parenting time based upon allegations of child sexual abuse that allegedly occurred while Mother was exercising her co-parenting time. The allegations pertained to sexual abuse allegedly committed by some of Mother's family members. Father also alleged that Mother was aware of the abuse but failed to do anything about it or to otherwise protect the child. Mother denied the allegations and filed a petition claiming there had been a material change in circumstances and that she should be designated as the child's primary residential parent. Following a hearing and later a plenary trial, the trial court changed custody and designated Mother as the primary residential parent. Father appeals. We vacate the trial court's final judgment because it fails to comply with T.C.A. section 36-6-106(a)(8) (Supp. 2007). We remand this case for further proceedings consistent with this opinion.


Court: TCA


Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for the intervenor-appellant, Gannett Satellite Information Network, Inc., d/b/a The Tennessean.

H. Lee Barfield, II, David A. King, Andrea T. McKellar, and Stephen J. Jasper, Nashville, Tennessee, for the appellee, National HealthCare Corporation ("NHC").

William B. Hubbard and Cynthia H. Wiel, Nashville, Tennessee, for amicus curiae, Tennessee Hospital Association.

Allan F. Ramsaur, Marcia M. Eason, and William L. Harbison, Nashville, Tennessee, for amicus curiae, Tennessee Bar Association.

Judge: KIRBY

This appeal involves a news organization's access to documents subject to a protective order. A fire occurred at a Nashville nursing home, resulting in numerous deaths and injuries. The fire spawned over thirty lawsuits against the nursing home, which were consolidated for discovery and trial. To facilitate discovery and mediation, the trial court issued a series of protective orders which restricted the disclosure of all unfiled discovery materials and ordered that any discovery materials filed with the court be filed under seal. The local newspaper intervened and filed successive motions to lift or modify the protective orders, seeking access to all discovery materials, both filed and unfiled. In its initial order, the trial court denied the newspaper's motion to lift the protective order as to unfiled discovery without stating the reasons for its decision. It granted the motion to unseal discovery materials filed with the court. Subsequently, an order was entered requiring that future-filed discovery materials be initially filed under seal pending a hearing on whether the documents should remain under seal. Discovery materials were later filed under seal in connection with a summary judgment motion. The newspaper sought access to the documents, and the defendant nursing home objected. After a hearing, the trial court lifted the seal on all but a few categories of the filed discovery materials. The newspaper now appeals, arguing that the trial court erred in establishing a protocol requiring all documents to be filed under seal without first finding compelling justification for sealing them, and also in refusing to lift the protective order on unfiled discovery without finding "good cause" for closure under T.R.C.P. 26.03. The newspaper urges the appellate court to, in essence, adopt the procedures set forth in a rule previously proposed to the legislature, but later withdrawn. We find that we are without authority to adopt the proposed rule or a procedure similar to it. We also find no abuse of discretion in the trial court's order establishing a protocol requiring that all discovery documents initially be sealed pending a later hearing. Finally, we find that the trial court's implicit finding of good cause to maintain the protective order on unfiled discovery was sufficient, and that its decision was not an abuse of discretion.

Same Individual Serving as Constable and County Commissioner

TN Attorney General Opinions

Date: 2008-11-24

Opinion Number: 08-177


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