OUTLINE FOR ESSAY PORTION OF BAR

Explanation: These are done by subject. Colors are done in matter of importance to that subject area, and not the bar essay portion as a whole. Marks next to subject show number of times item has been questioned on bar between 94’ and 05’. Subjects are in order of importance according to barbri lecture on essay.

CORPORATIONS

Promoter Liability – Any person who enters knowingly into a K on behalf of a corporation that doesn’t exist. Joint & Several liability unless other party knew or should have known corp didn’t exist. – IIIII

Derivative Suit – Lawsuit brought by shareholders against corp. Derivative Action requirements:1.) Must have owned stock at time incident arose.2.) Must be able to adequately represent the corporation.3.) Must make demand on board unless futile.

a. Special Litigation Committee – Directors not interested investigate matter to determine whether it should be pursued. Courts usually defer. – IIIIIIII

Duty of Loyalty – One who engages in self-dealing transaction. Conflict of Interest – OK if any of these 3:

1.) Disclosure to disinterested directors2.) Disclosure to shareholders3.) Fairness to Corp. – IIIIIIIII

Breath of Duty of Care – Can’t be waived and only waivable for good faith and unintentional breaches. – IIIIIII

Corporate Opportunity – Usurps corporate opportunity in line of business corp normally in without disclosure. Disgorge of profits made because it is only being held in constructive trust for company. – IIIIII

Business Judgment Rule – Decisions made in good faith with due deliberation will protect director from liability. – IIIIIIIII

Dissolution – Shareholders give notice as to holders of unknown claims against the corporation to be published in compliance with TBCA (TN business corporation act). They have two years to bring a claim following publication. Creditor can go after shareholders if assets distributed, but can only recover each shareholder pro-rata share of the claim. A corporation continues to exist after dissolution - III

Liability when Corp not properly formed – present TN statute imposes liability only on those who purport to act for the corp, knowing that the corporation has not been formed. III

Peircing Corporate Veil – FUC – Formalities, undercapitalization, commingling. – IIIII

Constructive fraud – propelled the corporation into insolvency or left it with insufficient capital given the business in which it was engaged. – III

Contribution to Corporation – May consist of cash, property, past services, or future services. When non-cash used the directors may determine value. – III

Ratification – Corporation accepts the benefit or adopts the actions by resolution. – IIIII

Loans to Directors – Can be done with stockholder approval or can be approved by disinterested directors following full disclosure. – III

Dividend – Corporation may not pay if it will make them unable to pay debt as incurred or assets become less than liabilities. Directors may be personally liable who authorize. Shareholders who knowingly accept can be liable. Same goes with buying back company stock. – IIIII

Inoluntary Dissolution – Directors deadlocked or there is waste occurring of company assets. Shareholder petition when directors or those in control behaving illegal, fraudulent, or oppressive way. Or when corps assets are being wasted or misapplied - IIII

Voting for Merger – Need 51% of shareholders and majority of board of directors. Same as sale of the assets – III

Power of Removal – shareholders can remove directors with or without cause except when charter says otherwise. Officers can be removed at will, and only remedy is breach of K. – II

Dissent to Merger – Written notice of dissent prior to vote, then don’t vote or vote against. Request value of shares and try to settle up. If not go to court. – II

Corporate Seperateness Doctrine – Generally, in situations where shareholder run the business there is a heavy presumption of limited liability. However, if the corporate form is used to commit a fraud or injustice, this presumption will be defeated. The courts will look to see whether the coproation was grossly undercapitalized when formed, whether the shareholder mixed personal assets with the corporate assets, and whether the shareholder failed to follow corporate formalities. FUC. - I

Exigent Circumstances – This is an exception to a warrant. They can exist and normally in the existence of an emergency.

Exclusionary Rule – Evidence obtained illegally can’t be used at trial or preliminary hearing. It can be used in front of the grand jury.

Forming Corporation – Incorporators sign and file charter with SOS. Corp doesn’t come into existence as DeJure Corp. until charter is filed. – I

Adoption – Requries the corp. to evidence its intent to become a party to the preincorporation contract. This can be done formally, by the BOD taking formal action to adopt the contract, or it can occur informally, by acceptance of the benefits under a preincorporation contract. SAME AS RATIFICATION???? - I

Corporation by Estoppel – Limits liability for preincorporation transactions to those who act on behalf of the corp knowin that there was no incorporation by a filing of the charter with the SOS. – II

Special Meeting Requirements – Can be called by BOD, person designated in charter, Shareholder with > 10% of stock. This can be voided if not issued by person authorized to call it. Must be 10 days advance notice and state particular purpose of meeting. If for merger must state so, and also notify shareholders of right to dissent. Notice requirement waived by attendance unless objection announced at beginning, but only for timeliness and not purpose. – I

Shareholder Oppression – What the court will do instead of a derivative action in closely held corporations - I

TN Law – Allows shares to be issued for future, and expressly provides they can be held in escrow. Must look at escrow agreement to see whether one with shares in escrow has the rights of a shareholder before employment contract complete – I.

Indirect Conflict of Interest – Only if another entity he has an interest in would benefit from his vote – I

De Jure Corporation – When corp. begins and filed with state – II

Fraudulent Transactions Claim – A conveyance or transfer made;1.) with intent to hinder, delay, or defraud creditors is void; as is2.) a conveyance made without fair consideration if the transferor is insolvent; or3.) if the transfer leaves the transferor with unreasonably small capital to carr out

the business in which it plans to engage. - I

PARTNERSHIPS

Partnership – formed when 2 or more people carry on as co-owners of a business for profit. Sharing of profits create the presumption of a partnership. Profits for loan repayment, wages, or commissions are ok and not part of partnership. Clear and

convincing evidence will be needed if not in writing. Joint and several liability of all partners can bind if within the scope of ordinary business. – IIIIIIIIIIIIII

L.P. – Writing required. Must be filed in order to have limited partners. General partner is personally liable. Limited to cover ass may filed certificate of limited partnership at SOS to not be liable. – IIIIII

Certificate of Limited Partnership – Any person who has a good faith and reasonable belief that he is a limited partner and who immediately files a certificate will be protected as a limited partner. Still liable for those who extended credit prior to the filing on the theory of reliance. – IIIIIII

Contribution – Can get from partners for amount paid out or partner’s negligence. – IIIIII

Tennessee Revised Uniform Partnership Act – This is the state act. – IIIIIII

Scope of Partnership – Everyone joint and severally liable by same ratio as split of profits. Liable if done within scope of partnership. Outside of ordinary course of business must be agreed to by all. – IIIIIIIIII

Dissolution – Automatically dissolved upon death or bankruptcy. To continue operations must have 2 or more people who must purchase interest of dissociated partner to continue. Valued at date of dissolution. Liquidation value for partnership or the value of the partnership as a going concern. Partnership at will can dissociate any time. – IIIIIIIIII

Winding up – Liquidate partnership, pay off creditors, pay off contributions and advances, then pro rata share. – IIIIII

Partnership by Estoppel – Anyone may be liable to anyone relied upon a representation by the partnership with the person’s knowledge that they were a partner. Don’t actually have to be a partner. – III

Individual Liability – In order to make partner liable who was not directly negligent must also sue the company/partnership. – IIII

Joint Venture – An association of persons with the intention to engage in a single business venture for joint profit. - IIII

Partnership Property – Look to whether property was paid for with partnership funds, this is a rebuttable presumption. Look at the entire set of circumstances. - III

Limited Partner binding partnership – If given authority or ratified binds the L.P.. If not only against limited partner himself. – I

Notice of withdrawal – File at SOS to complete dissociation. – I

Accounting – An equitable action that considers all of the transactions of the partnership and will determine the amount to which your husband’s heirs are entitled. - I

Partnership Records – Limited partners are entitled to full information regarding the state of the business and financial condition of the partnership, and such other information regarding the partnership as is reasonable. – I

Assignment of Partnership Rights – Only gives rights to distribution original shareholder would otherwise be entitled. - I

L.L.P. – Limited partners have protection immediately upon filing of company with S.O.S. They have no protection up until that point. – I

AGENCY

Actual Authority – 2 basic types:1.) Express – Authority contained within the 4 corners of the agency agreement.

i.e. written communication, oral.2.) Implied – Authority that an agent, not 3rd party, reasonably believes that she

has due to actions of principal. Can arise in several ways such as custom and usage, implied from express, or emergency. – IIIIIIIIII

Apparent Authority – Even if agent lacks actual, principal can be held on K’s entered into on his behalf if third party seeking to hold principal can show that agent had apparent authority to act. Where principal holds out another. Principal must have done or failed to do something that caused 3rd party’s belief. – IIIIIIIIII

Ratification – Principal accepts benefits of agent’s actions or agreed to them by action or inaction. - IIIIIIIII

Liability – Agents and Principals held jointly and severally liable – IIIIIII

Liability of Agent – Liable for negligent or intentional misconduct to principal. If K present you can recover in contract or tort. And liable for acts outside authority (personally) - III

Agency – Consent must be manifested by botht he principal and the agent. No consideration is required nor a writing. III

Principal Liability – Will not be liable when her agent acts without authority. Will be liable when intentionally or negligently allows an agent to hold himself out as the owner of property with indicia of ownership is estopped to dent that the agent was the owner when the property is transferred to a bona fide purchaser. - III

Constructive Trust – Court established trust when proceeds or property is wrongfully converted and holds for the wronged party (BFP) over the rights of unsecured creditors. Attaches to traceable proceeds – III

Intentional Acts – Not liable for intentional torts of employees unless in line of work with confrontation. - III

Fiduciary – Special relationship where there is a heightened standard of care from the agent to the principal. - II

Duty of Loyalty – Breach of that duty by agent forfeits compensation (Bribe will give recission). - II

Authority of an agent to make a contract – Available to make it on usual or appropriate terms and conditions. – I

Frolic vs. Detour – Can detour still hold employer liable with implied consent. – I

PROPERTY

Holdover Doctrine C.L. –If residential the max it can be is a year to year. Rental increases are ok if reasonable notice given to tenant before expiration of lease. Holdover is for the same period of time as original lease up to one year. Notice is given equal to term of payment or 6 months for one year lease. Modern trend is to do month to month for all residential. A few articles of personal property not enough to bind. - IIIIII

Residential Landlord/Tenant Act – Governs counties with population of 68,000 or more. These counties include Shelby, Davidson, Hamilton, Know, Madison, Montgomery, Maury, Blount, Bradley, Anderson, Sumner, Sevier, Wilson. Those excluded over 68,000 are Williamson, Rutherford, Sullivan, and Washington.Period Tenancies – 10 days notice is required to terminate a week to week. Termination of month to month requires 30 days prior to periodic rental date specified in notice. If tenant acts in a way that threatens welfare or safety of others 3 days written notice is ok. Tenants duty to repair (Permissive waste) – Must comply with building and housing codes, keep premises clean and safe, dispose of garbage and waste paper, not damaging premises, and act so as not to disturb neighbors peaceful enjoyment. If tenant fails to comply LL must give tenant notice and if within 14 days no remedy LL can have it done at expense of tenant.Destruction of Premises w/o fault – Absent express agreement to the contrary tenant may surrender property and stop paying rent.Security deposits – LL must place in bank account strictly for that purpose. If violated can’t retain any.No pay by tenant – LL can give written notice of non-payment unless rental agreement waives. Notice must specify breach and lease will terminate in 30 days. If not remedied within 14 days the lease is terminated as provided in the notice. LL duties and tenant remedies – LL is as follows:

1.) keep units up to code2.) repair anything necessary3.) keep common areas clean and safe4.) Multi-unit (more than 4) put out trashcans.5.) Provide access to essential services.

Tenant Remedies: Written notice of breach to LL1.) Procure services and deduct from rent2.) Diminution in rental value3.) Reasonable substitute housing and excused from paying rent.4.) Retaliatory Eviction by LL – He may not increase rent, decrease services, or

bring or threaten to bring action b/c tenant complained.If property destroyed by fire or other casualty tenant can vacate and notify in writing within 14 days. LL must repay all prepaid rent and security.Damages – If LL acts maliciously or willfully removes you can get actual and punitive. Tenant acts intentionally or negligently can be liable for damages to property.IIIIIIIII

Landlord should not care period – Landlord at common law must only be concerned of the follow:

1.) Latent defects2.) short term leases of furnished dwellings3.) negligent repairs4.) Common areas5.) public use. - IIIIII

Tenants in Common – Each owns an undivided share in the property that can be transferred inter vivos and at death. No right of survivorship - IIII

Covenant of Seisin – You actually have title to convey. - III

Adverse Possession – Open, notorious, continuous, and hostile for a period of 20 years. Can tack with previous owner. If held for 7 years you have defense of title and can’t be ejected. If enter under color of title then 7 years or title through which person claims previous owner recorded more than 30 year ago (get it after 7 years). - III

Detainer warrant – To regain possession of real property. To evict or recover and can be done in general sessions or circuit court. - III

Assignment – No consent of lessor necessary unless in K. Once assignment made entire interest is transferred, but original lessee remains liable. New lessee has privity of estate. If assignee reassigns then no liability. - III

Easement by necessity – No adequate or convenient outlet. Landlocked. Have a right at law across adjoining and intervening land. - IIII

Prescriptive Easement – Similar to adverse possession. If you use easement openly for 20 years, then you have prescriptive right. Permission will kill this prior to establishment of right. - III

Constructive Eviction at C.L. – L.L. actions cause premises to be uninhabitable. Tenant must vacate in timely manner if termination wanted. Can get damages. - III

Covenants of Title – Seisin, right to convey, against encumbrances, quiet enjoyment, and further assurances. - III

Joint Tenancy – “Must say right of survivorship” Can sell your interest, but if you do it is a tenancy in common. -I

Convenant to convey – You actually can convey the title. - I

Champtery Statute – Property owner may not transfer property occupied by adverse possessor in TN - I

Restricitive covenant – enforceable to future parties if runs with land, in writing, signed, and clearly expressed to run with the land - I

TN Residential Property Disclosure Form – Owner/seller disclosure statement. Has condition of property and must disclose know defects. Not a warranty or substitute for homeowner inspection. - II

Assumption of Lease – Remain liable for lease term. - I

Equipment left on property – If abandoned then can get rights, and can also be used to consider it a holdover. - I

Trade Fixtures – Can’t be retained unless abandoned. - I

Exceeding scope of easement – Doesn’t kill easement, but can enjoin excessive use. - I

Implied covenant of habitability – Not in Common Law Tenancy. – I

Independence of Covenants Theory – At common law a tenant cannot terminate the lease or refuse to perform. Instead, the tenant should continue to make rental payments and sue the landlord for any damages that the tenant feels he is entitled to receive. - I

CL landlord tenant – Duty of due care and to inspect and discover dangerous conditions on property. If defects found at time of lease, landlord has a duty to repair. - I

Assumption of Risk – No longer an absolute defense and absolved by comparative fault. Still used to determine percentage plaintiff may be at fault in awarding damages. - I

Covenant of Quiet Enjoyment – Buyer can’t obtain complete possession of the land that was conveyed.- I

Acreage vs. legal description in deed – Don’t go by stated acreage if the deed contains a legal description. Any representation made with reference to the amount of land will merge with deed. - I

Reformation – Will be granted if the deed does not reflect the parties’ agreement, either because of mutual mistake or a drafter’s error. Unilateral mistake will suffice only if the nonmistaken party induced the mistake by misrepresentation. - I

Flood – Sudden change does not alter the existing boundaries between the land. - I

Dedication – Appropriation of the land by its owner, for the use of the public, and accepted for such use by or on behalf of the public. An offer of dedication may be made by, e.g., making an express statement, opening a road to public travel, or acquiescing to use by the public. Acceptance by a public body may occur by formal resolution or assumption of the maintenance of the land. – I

Abandonment of Easement – Extinguised where the owner of the privilege demonstrates by action an intention to permanently abandon the easement. To work as an abandonment, there must be manifest intention never to use the easement again. – I

Waiver – LL accepts changes in rent and never institutes legal action – I

Eviction – Non payment of rent – Give written notice of non-payment saying eviction will be in no less than 30 days after receipt of notice. Breach not remedied in 14 days as provided in notice. – I

Surrender – Abandoning lease property at permission of landlord will give up future rents to LL – I

Notice to terminate – Must give proper notice and it must be in writing. – I

Shared Driveways – Belongs to each landowner to the extent it is on their own land. Mutual implied easements are implied in this situation. – I

Easement by Implication – Single tract of land is severed and there is prior existing use or an absolute necessity. – I

Irrevocable license – An easement created by a license when the licensee extends substantial sums of money relying detrimentally on the license. – I

Defects in property – A seller of real estate in TN has ab onbligation to disclose defects to the buyer where the defect is:

1.) known to the seller

2.) not obvious to the buyer3.) serious and would probably cause the buyer to reconsider. - I

Contingency clause – Condition precedent upon performing obligations of contract. Financing is the same. – I

Immediate Eviction under RLTA – Can be effected in 3 days written notice if tenants, or other person on premises with tenants consent, behave in a manner that threatens the property of other tenants or persons on the premises. - II

Specific Performance – Can seek to enforce contracts for unique and always available in land. File in chancery where court is located. – I

Conveyance – Requires both execution and delivery. Recording raises a presumption of delivery. – I

Ouster – Co-tenant can get adverse possession of land if they meet statutory period of 20 years and kept other co-tenants off property – I.

Defect on deed – If the register of deeds records the instrument then it is constructive notice and valid. - I

TORTS

Comparative Fault – Damages can be reduced by percentage Plaintiff was at fault. Plaintiff can’t be 50% at fault. IIIIIIIIIIIIIII

Wrongful Death – Surviving Spouse, next of kin, and personal representatives can bring action and must be brought in Circuit Court. – IIIIII

Negligence – A- Actual damages, B – Breach of duty, C – Causation (legal and proximate), D – (Duty owed). Injury must be foreseeable. IIIIIIIIIIII

Respondeat Superior – Employer can be held vicariously liable for the negligence of it’s employees within scope of employment. Principal/Agent. I.C. can make employer liable if employer holds out I.C. as employee and plaintiff relies (Employee by estoppel). – IIIIIIIII

Damages for Wrongful Death – Medical Expenses, loss of earning capacity, pain and suffering if conscious, funeral expenses, pecuniary value minus expenses, loss of consortium for spouse, child, or parent. – IIIII

Negligent Entrustment – Negligent in handling caretaking duties involving people or things. When defendant has reason to know 3rd party is likely to commit such acts as would require the exercise of control of defendant – IIII

Strict Liability – TN – Unreasonably dangerous OR defective design. You sue the manufacturer. – IIII

Parental Liability for child’s action. – Not liable unless acting on parent’s behalf or parent’s negligent for supervision. Past behavior important. IIII

Duty of Care – TN – Reasonable duty owed under the circumstances. Have abolished difference b/w licensee and invitees – IIIII

Landlord Common Law – Landlord (Latent Defects) Should (Short term rental, less than 3 months of furnished dwelling) Not (negligent repairs) Care (Common areas) Period (Public use). Must inspect premises before leasing and notify tenant of any dangerous conditions. – IIII

GTLA – Officer negligently conducts high speed chase and causes injury to third party for example. Limits: 300,000 for one person and 700,000 per occurrence with $100,000 property damage. Circuit Court has jurisdiction. No savings statute allowed. No jury unless one of several defendants. County where accident occurred or where the government is located. – III

Negligent Infliction of Emotional Distress – In TN must show an injury. Zone of Danger gone. Close Relative needed and sufficient proximity with serious injury. Must show serious or severe medical injury through expert witness and scientific proof. - IIII

Fraud or Misrepresentation – Scienter (Intent). Intend person to rely on info in deciding. Look for superior knowledge by one party. No duty on buyer to get second opinion. As Is clause will not protect seller from acts of fraud - III

Statute of Limitation on personal injuries – 1 year. Infancy can toll the statute. - III

Occupier of Premises – Must exercise due care – I

Vicarious Liability – Liable for acts of agent – I

Landlord Liability - UltraHazardous – May be held strictly liable for injuries which result from abnormally dangerous activities on his land. – II

Liability of trespassers – Liable for all damage from trespass. - I

Duty owed trespassers – Not liable unless intentional or reckless harm. II

Attractive Nuisance Doctrine – Landowners know children play and it is a dangerous condition likely to cause injury and young person not able to appreciate the risk. – I

Sale of Rental at Common Law – New Landlord takes w/rights and liability of original landlord. – I

Intervening Cause – Unforeseeable and breaks the chain of causation. I

Permissive Use Statute – Owner may be held responsible for actions arising out of use of vehicle w/owners permission for owners benefit and within scope of employment – I

Suit brought against state entity – Must be brought before Tn Claims Commission – I

Medical Malpractice – Deviation from local standard of care required – I

Indemnification – Can be contracted for and will be upheld. Limited in scope because cannot contract to escape liability for harm caused by inttional or reckless conduct. Such a provision would be invalid as against public policy. - I

Loan-Servant Doctrine – Loaning principal remains the employer of the “borrowed employee” and is the only one liale for the employee’s torts. However, if the borrowing principal has the right to control the employee’s actions, then she is the employer and she is liable under the doctrine of respondeat superior. - I

Operator of vehicle – Has a duty to keep a vehicle in good repair and fix known defects. - I

Affirmative Acts – In TN, there is no legal duty to affirmatively act for the benefit of others. - I

Criminal acts in Biz parking lot – A business does not ordinarily have a duty to protect customers from the criminal acts of third parties. However, a duty to take reasonable steps to protect customers arises if the business knows, or has reason to know, that criminal acts against their customers are reasonably foreseeable. - I

Age restrictions in TN – 7 and under no liability. 8-13 rebuttable presumption they are not liable. 14 & up can be held liable. A child of any age can commit and intentional tort. - I

Unforesseable Act – Medical malpractice will not be an intervening cause unless gross negligence or higher. - I

I.C. and Non-Delegable Duties – employers can’t waive liability of non-delegable duties to independent contractors. - II

Good Samaritan Statute – exempts all persons who voluntarily render emergency treatment from liability for ordinary negligence. However, liability is retained for gross negligence. – I

Assumption Risk – No longer applicable in TN, but only part of the comparative fault doctrine. No longer and absolute defense. – II

Open and Obvious Rule – Same as assumption of risk. Consumed by comparative fault. – I

Reckless Definition – A person aware of but consciously disregards a substantial and unjustifiable risk of injury or damage to another. Disregarding that risk must be a gross deviation from that of a reasonable person. DUI - I

TN Claims Commission – Actions against state not GTLA, but must be brought to this venue. 300K per person and 1M per event. – II

Discretionary gov’t acts – Immune, whereas operational acts are not – I

Family Purpose Doctrine – Applies when head of household furnished car for general use and for the convenience of the family. Gave permission for other family member to use vehicle for that purpose. AND Driver was driving for that purpose. – I

Seller of Alcohol – Plaintiff must prove BRD seller proximate cause of injuries and knowingly sold to under 21 or intoxicated person. – I

Owner of Livestock – Negligently lets it run at large then will be liable for damages that are caused, but not strictly liable – I

Personal Property Claims – 3 yr S.O.L. – II

Intentional Breach of Contract – C.L. 3 yr. Statutory 1 year with punitive damages. - I

Conversion – Fair market value at time of conversion – A forced sale basically. – II

Tresspass to chattels – Diminished value and loss of use - I

Worker’s Compensation – Exclusive remedy under TN for employee to employer. You can plead that the employer’s fault was the cause of the accident, but not for comparative fault purposes. – I

Shopkeepers Privelege – protects a merchant, a merchant’s employee, or a peace officer who has probable cause to the believe that a person has committed a theft offense. The person may be detained for questioning and investigation. – I

False Imprisonment – Intentional restraint or detention of another person w/o just cause. - I

Slander per se – word that constitute the imputation of a crime. – I

Defense of Property – Reasonable force, not deadly or that which would risk serious bodily injury can be used. – I

Abuse of Process – Plaintiff must show:1.) Wrongful use of process for an ulterior purpose (usually to gain collateral adv., and2.) Some definite act or threat against Paul to accomplish the ulterior purpose. - I

CONTRACTS AND SALES

Article II U.C.C. – Governs transactions involving the sale of goods between merchants and to individual buyers. - IIIIIII

Statute of Frauds – All contracts must be in writing that involve Marriage, things involving 1 year or longer, sale of land, agreements with executor, & agreements with surety. This item can be satisfied by delivery under UCC. MY LEGS. IIIIIIIIIII

Latent Defects – Grounds for recission of contract or damages provided timely notice is given upon discovery. IIIIII

Breach of Contract – Gives general and consequential damages. The goal is to place both parties in the same situation they would have been in if a breach had not occurred. IIIIIIII

Disclaimers – In TN, disclaimers provided after sale are not effective, and you can’t disclaim an express warranty. To waive warrant of merchantability must mention merchantability in the waiver. To waive fitness for a particular purpose must be conspicuous. IIIIIIIIIII

Breach of Express Warranty – Things said or presented by defendant are not true, then difference is that between value of goods as promised and value of goods as delivered (any breach of warranty). Any description of the good becomes part of the baragain and creates express warranty. Labeling on box can also constitute express warranty. IIIIIIII

Breach of Implied Warranty –(Privity of K Needed) Implied warranty includes: Can use “as is” or “with all faults” to disclaim this, but must be very clear.

Fitness for a particular purpose – Seller is being relied upon for skill or judgment to help select particular goods.

Implied warranty of merchantability. Difference b/w price of goods delivered and what they would have been if correct. Can also get consequential damages when foreseeable, but can be waived in K. IIIIIIIIIIII

UCC Insolvent buyer – Seller can reclaim goods upon demand within 10 days of buyer’s receipt. Demand in writing in case bankruptcy is declared. May also demand cash from insolvent buyer. Unable to pay debts or have liability over assets.More factors to consider: Can demand ability to perform in writing. If given then you have 30 days to take items back.

Delivery: Can hault delivery only if truckload, carload, planeload. Small not stoppable. Only if they haven’t been paid for that particular statement. If stopping for overdue account can’t stop shipment. – IIIII – Showed up a bunch recently.

Reasonable Opportunity for inspection UCC – A failure to inspect by a buyer within a reasonable amount of time will constitute acceptance. IIIII

Tender of nonconforming goods believed to be acceptable – If they believe they are and are not then seller can cure within a reasonable time, and notice must be given by buyer of non-conforming goods. IIII

Counteroffer – Terminates original offer. This is different in the case of U.C.C. merchants which is a “battle of the forms” question. IIII

Tennessee Consumer Protection Act – Treble damages and attorney fees if fraud involved. To prevent “unfair or deceptive acts or practices”. IIII

Assignment of right to possess and make payment – equals a delegation of duties and both remain liable. III

Perfect Tender Rule – A buyer may reject all or part of a delivery that does not conform to the original contract, but buyer must notify seller of the nonconforming goods. Seller can cure up until time of performance. II

Delivery of goods over $500 with no writing – Can be satisfied by delivery. II

Rejection after acceptance – O.K. if defect exists that wasn’t discoverable @ time of acceptance. I

UCC Gap Filler Provision – If no price is mentioned the courts will establish a reasonable price by looking at fair market prices. II

Mental capacity due to intoxication – Extremely drunk good defense if other party knew or should have known. I

Mutual Assent (Meeting of the Minds) – Must meet on all essential terms of the contract, or can be rendered void. II

Cover UCC – Difference between value of goods contracted for price of those acquired to cover plus consequentials. II

Amendment to Contract – New consideration needed. UCC for amendment no if in G.F. - II

Parole Evidence Rule – All prior and contemporaneous negotiations are merged into the agreement. Extrinsic evidence not admissible to alter agreement. Warranties made after the fact become part of the contract.

Exceptions: To clear ambiguous terms & regular trade termsCollateral agreement II

TN Lemon Law – 4 attempts to fix a new vehicle unsuccessfully or vehicle out of service for 30 days, then new vehicle or full refund of money to buyer. Recover from the manufacturer, and not the seller. II

Fraudulent Misrepresentation – Innocent party need only to rely on misrepresentation. The reliance doesn’t need to be reasonable and the contract is voidable. Innocent misrepresentation is defense. II

Illegality – Usurious contracts included. Interest rate greater than prime rate + 4 or at a maximum of 24%, whichever is lower. I

Unconscionability – Commercial background and needs of party make up totality of circumstances. If it is a one sided party transaction and so lopsided it will be considered unconscionable. I

Accord and Satisfaction – An honest dispute as to the amount owed, a good faith tender is made and accepted and the tender states that it is payment in full, an accord and satisfaction of the debt will be found to have occurred. However, in TN both parties must intend that result. I

Lapse of Reasonable Time – Can terminate a contract offer. I

Impracticability – Under this doctrine a contractual duty may be discharged when there is extreme difficulty or expense and the difficutly or expense was not anticipated. Generally, the mere increase in the price of materials is not sufficient to discharge the contractual duty. However, if the change is beyond the normal range, impracticability may apply. I

Options Contact vs. UCC Firm Offer – Options in contract must be supported by adequate consideration. In UCC a merchant who makes a firm offer in writing can be held to that bid for a reasonable time not to exceed 90 days. I

Subsequent Condition to K – Kills negotiability and failure to meet condition will be considered a breach. This is not negotiable, but will be an assignment if moved to another party. I

Illegality in K (gambling) – Void Contract - I

UCC Sale of Goods SOL – 4 yr statute of limitations for breach of contract and can be modified by agreement of the parties to 1 year. I

UCC Disclaimer of Warranties written – When Parole evidence rule applies warranties prior to writing properly disclaimed in writing are disclaimed. I

Part Performance of Contract – TN does not recognize this exception to SOF in cases involving land – I

Quasi-contract – allowed for failed contract if the other party will be unjustly enriched (Promissory estoppel not recognized in TN) – II

Specific Performance of Employment Contract – Not given in employment contracts. – I

Good Faith Purchaser – Majority of cases from other jurisdictions have held that a secured party qualifies as a good faith purchaser and that a secured party holding a security interest in the debtor’s inventory has priority over reclaiming seller. – I

Specially Manufactured Goods – under SOF s.m.g. if not sutiable for sale to other in the ordinary course of business and seller make substantial beginning of manufacture K is enforceable. Difference between contract and force sale price unless market could be found. - I

Future Modifications Clause – Under the UCC clauses in contracts that state all future modifications must be in writing are effective to preclude oral modifications. This is the same for waivers if the original contract states waivers must be in writing. – I

Minor in Contract – Voidable not void – Generally court voids value for deficiency and leave parties as they are upon return of item. – II

Circle of Assent – Doctrine has been used to negate releases and limitations on liability that are not specifically brought to the attention of the person against whom enforcement is sought. (I.C. Doctor in emergency room no good in TN) - I

Modification – If would violate S.O.F. on face may need to have a writing, because some authority says otherwise. – I

Predominant Purpose Test – In TN when both sale of goods and non-goods involved this used to determine whether or not to use UCC. – I

Impossibility – Generally, if the contract’s subject matter was destroyed without fault of the promisor, any duty under the K will be discharged for impossibility, provided that the subject matter of the K is unique. - I

Risk of Loss – If Contract requires seller to deliver the goods at a particular location, the risk of loss passes to the buyer when the goods are tendered to the buyer at the destination. Look at K for where this is. – I

Personal Services Contract – No Involuntary servitude under 15th and no specific performance – I

Liquidated Damages – Can’t be for punishment and must be reasonable as for injuries at that time of K. – I

SECURED TRANSACTIONS

Perfection – Secures against 3rd parties and prevails over unsecured. – IIIIIIII

UCC-1 – This is the financing statement filed with the SOS. Must list correct legal name of debtor. – IIIIIIII

Proper Notice of Sale – Debtor entitled to notice prior to sale of collateral containing specified information. Statute contains a list. Must be commercially reasonable. Factors considered are number of bids and purchase price. If no not commercially reasonable sale collateral presumption is debt is satisfied. – IIIIIIII

Security Agreement – Describing the collateral and granting security interest in it. To have proper attachment to the interest there must be;

1.) security agreement between the debtor and creditor2.) giving of value3.) the debtor to have rights in collateral.4.) Signed by debtor - IIIIIIIII

Perfection by Control – Better than perfection by filing. If certificates get them, if brokerage get control agreement. Can still file UCC1 at SOS. - IIIIIII

UCC1 – Perfection at UCC. Financing statement MUST list the correct legal name of the debtor. It is not necessary to file under the trade name, but it would be advisable to file under that name as well as under the legal name. File where company is chartered 1st, then principal place of business, then state where property located for property. Good for cars in dealer inventory. Debtor’s signature not required. - IIIIIIIIIII

Fixture filings – Must be filed in the Register of Deeds in the county where the fixtures are located. Obtain LL or mortgagees waiver for that particular fixture. IIIIII

PMSI – Creditor loaned money for collateral. Money must be used to purchase specified collateral. Has priority over all other interests in collateral including those earlier recorded. 30 days to record after purchase. 20 days for inventory and livestock – III

After Acquired Property – Valid, but must be written in security agreement – IIIII

Reposession – Allows creditor to take property in self help or courts and can’t reposess if no default. If self help allows them to take property ok as long as no breach of the peace. – III

Vehicle – Must be noted on title. Inventory auto sales can be in SOS. – IIIII

Priority in Mortgage- GOOD LUCK, YOU SHOULD KNOW! - IIII

Where to Check:1.) Cars – Titling agency of TN or Look at title.2.) Negotiable Instruments – Look at possession.3.) Accounts, intangibles 4.) Possession and SOS, primary business and incorporation. – III

Future Advance Clause – OK if in original agreement and mandatory under the contract or made within 45 days after a lien arose. – II

Promissory Notes – Take physical possession and have indorsed. – I

Taxes – When recording at SOS must be applicable taxes and fees. YES, THIS WAS ACTUALLY A QUESTION. – I

Statutory penalty for wrongful repossession – 10% of original loan plus all interest paid over the life of the loan. – II

Default – Obtain possession of collateral capable of physical possession, then file an action to recover personal property and retain a writ of possession or self help if available. Upon default bank may sale collateral by public or private sale. Debtor must be given notice. With respect to the money owed to the debtor by others, the bank may, upon default, notify the persons obligated to make payment directly to the bank. - I

Termination of Financing Statement – Filed w/SOS to release a security interest.- I

Plane security interest – Must be filed with the FAA in Oklahoma. – I

Contracts rights – Are accounts and general intangibles. – I

When does it attach – Signed agreement and value has been given. – I

Buyer in O.C.B. vs. Secured Party – If from merchant, buyer wins. – II

Bank’s interest in tort claim – A bank can obtain a valid interest in a tort claim, but only a “commercial claim” (Excludes claims arising out of personal injuries). - I

COMMERCIAL PAPER

Negotiable – Signed writing unconditionally due or promise to pay fixed amount payable on demand or at a definite time. Payable to order or bearer and without any conditions. Funds coming from specific source OK. - IIIIII

Holder – A person in possession of an instrument drawn or indorsed to him or his order to bearer or in blank. - IIIII

Holder in Due Course – Can only use real defenses and no personal defenses. Holder for value in G.F. and w/o notice that:

1.) note is overdue2.) unauthorized signature3.) claim on it4.) any party has defense or claim in recoupment - IIIIII

Real Defenses – Infancy, illegality, alteration, duress, incapacity, fraud in inducement, bankruptcy, knowing discharge. - IIIIII

Forgeries and unauthorized checks – Bank pays normally but if customer didn’t notify bank within 30 days of bank statement right has been waived. “bank statement rule”. You get approximately 60 days free. - IIIIIIII

Fictitous Payee Rule – bank not liable for checks made out to fictitous payee and signed by fictitous payee. - IIII

Accord and Satisfaction – To prove discharged this way must:1.) he acted in good faith2.) the debt was subject to a bond fide dispute, and3.) the check was conspiculously marked as being in full satisfaction of the debt.Can be avoided by telling that any A & S checks must be sent to a certain office. You can also repay check within 90 days. – III

Lost Note – Can collect if:1.) he was in possession of the instrument and entitled to enforce it when the loss

of possession occurred,2.) the loss of possession was not the result of a transfer by the person or of

lawful seizure, and3.) the instrument was destroyed, its whereabouts connot be determined, or it is in

the wrongful possession of an unknown person or a person who cannot be found or of a person not amenable to service of process. May have to post bond.

a. If no copy client must provide:i. Terms of the note

ii. His right to enforce the instrument. - IIINegotiation – Order paper upon transfer and indorsement. Bearer paper upon transfer. - II

Authority – Express, implied, or apparent is ok. - II

Stop Payment – Must be specific and before presentment giving reasonable time for response. If cashed, burden still on issuer to show bank caused the injury. - II

Negligent w/respect to forgery – Don’t hire an ex-convict. NO SHIT! - II

Stolen Checks – Owner of check can recover for conversion once received by payee. Unless you’re negligent you will not be liable for stolen checks. - I

Deposit Only – Check marked deposit. It is a special indorsement and bank liable for cashing. – I

U.C.C. Article III – Sign in a representative capacity and you are personally liable. - I

S.O.L. on a note – 6 years from due date on a promissory note – II

Alteration of Note – If one who fraudulently alters a note bring lawsuit to collect, the debt is totally discharged. – I

Wrongful Dishonor – A bank that wrongully dishonors a check is liable for all losses proximately caused by the wrongful dishonor. Bank can honor instructions on check for time limitations. – I

Notice of Dishonor – Indorser not liable until notice of dishonor is given or excused. Bank must give notice by midnight of the banking day following the dishonor. - I

Presentment Warranty – Each party that presents a draft for payment warrants that they are a person entitled to enforce the draft. This warranty would have been breached by the forged indorsement - II

U.C.C. and application of state law – provides for purposes of determining liability of a bank the law of the state in which the bank is located governs. – I

FOR DEPOSIT ONLY – “For Deposit Only” is a restrictive indorsement and if a check is paid contrary to this indorsement, any person who takes the check is liable for conversion. – II

U.C.C. Provisions on Signatures – On a negotiable presumed authentic. If not under U.C.C. must authenticate handwriting. – I

Credits Made – When a credit is made to a customer’s account for items deposited by the customer, the credit is provisional and may be revoked before midnight of the following banking day. - I

DOMESTIC RELATIONS

Grounds for divorce – The following are grounds for divorce in TN:1.) Adultery – Not mere suspicion, must plead circumstantial evidence showing

inclination, disposition, and opportunity. Alleged partner named with specifics of time and place. –IIIIII

2.) Habitual Drug use – Must not begin until after marriage – II3.) Cruelty – Hitting in face – I4.) One year desertion – I5.) Failure to reconcile – degree of separation for 2 years. – I6.) Impotency – At time of marriage must be present. Temporary is not good

enough. Must be able to copulate and procreate. – I7.) Biggamy – Knowingly entered into 2nd marriage.8.) Conviction of a felony and confinement – I9.) Infamous Crime (Felony) 10.) Attempt upon life of spouse11.) Willful refusal to join at domicile for 2 years.12.) Pregnancy by wife of another man. Husband can’t have had knowledge. –

III13.) Indignities – Behavior forcing other spouse to withdraw. – II14.) Abandonment – Reasonable time w/out support. Turned out of doors.

Defense to this is just cause. – IIII15.) Separate Residences for 2 yrs – If no kids this is the only no fault ground.

– II16.) Irreconcilable differences – MDA must accompany and meet waiting

period. - IIIIIIIIIIIIIIIIIII

Separate Property – Brought to marriage or given to them by gift or decent. All other is marital. Separate property can be transmuted by intent, gift, increases in value if spouse substantially contributed. Divided Equitably and not necessarily equal. Fault doesn’t matter and factors similar to Alimony. - IIIIIIIIIIIII

Alimony – 3 different types of alimony:1.) Rehabilitative – Until position to re-enter society.2.) In Futuro – for perpetual future. Not favored unless not able to rehabilitate.3.) In solido – Lump sum or installments.

Factors for Alimony1.) Earning capacity2.) Education3.) Duration of marriage4.) Age5.) Separate assets6.) Property division7.) Fault8.) Any other relevant fact the court considers. - IIIIIIIIII

Custody Factors – Listed below:

1.) BEST INTEREST OF CHILD2.) Love, affection, and emotional ties between parent and child3.) Ability to care for the child4.) Primary caregiver5.) Continuity in stability and family6.) Mental and physical health of parents7.) Home, school, and community record of child8.) Preference of child 12+9.) Any physical abuse10.) Disposition of a parent to encourage contact with other parent11.) Character and behavior of any other person who lives in the home. - IIIIIII

Marital Dissolution Agreement – this makes adequate and sufficient provisions for custody and support of the children and for equitable settlement of the property rights of the parties. If found not sufficient or equitable, the case can be continued for further negotiation, or the parties can accept the amendments offered by the court. For irreconcilable differences. - IIIIIII

Child Support – The Department of Human Services in TN has set guidelines (Which are good as long as they make $10,000 a month or less) as to amount of child support one should receive are rebuttably presumed to be the correct amount to provide for the best interests of the child or equity between the parties. Other courts to give FF&C if paying party has moved.

1.) Income Shares Modela. Parents combined net income ascertainedb. Then look at schedulec. Then the parents share the support obligation in proportion to their

income.i. Deviation of shares allowed for:

1. healthcare 2. private school3. time spent with children4. credit for other children. - IIIIIII

Prenuptial – Valid in TN. Must be free from fraud. Alimony can be waived as long as spouse will not be public charge. Can’t control custody or child support. Must have full disclosure. Must be fair, good faith w/o duress or undue influence. - IIIII

Anullment – If a marriage is void ab intio, such as a bigamist marriage, a marriage is between parties within prohibited degrees of kinship, or a marriage to a person who has been adjudicated to be insane, not only the parties of the marriage, but also third parties may attack validity. Must also be someone with authority to perform marriage (Voidable). Underage marriage can e annulled, but if continued for a reasonable time past 18 (voidable) then considered married. A marriage is only voidable and can be challenged by one of the parties if either party is impotent at time of marriage or mentally

disabled so as not to appreciate. Other voidable grounds include wife pregnant by another man and fraud. After annulment you can get child support, but not alimony. - III

Divorce File – Chancery or circuit in the county where defendant resides or where couple resided. - IIIII

Divorce Waiting Period – With children is 90 days plus parenting plan and attend parental education seminars. 60 with no kids.– IIII

Adoption – Must be surrender or termination of parental rights. Venue is chancery or circuit court. Petitioner must be over 18, lived in TN 6 consecutive months, and if married spouse must join in petition. Fit personally to care for child, stable home, good living family environment. Can’t finalize until child has lived with adoptive parents for 6 months. - IIII

Moving Children – Court order can be obtained during the pendency of the divorce and prior to any temporary or permanent court order of custody, the concerned paryty can seek a court order prohibiitiong the other parent from removing the child from the jurisdiction. If no divorce pending you need to show risk of substantial harm to children. - III

Doctrine of Transmutation – Separate funds used for marital purpose. - IIII

Power to grant divorce – Tn Courts have if one party domiciled in TN and spouse through long-arm if they domiciled in TN as husband and wife. - I

2 Divorce actions in different states – 1st to judgment wins and is controlling. - I

UCCJEA – Child’s best interest is main factor. Current homestate generally control if they have been living there 6 months. - II

Federal Parental Kidnapping Act – TN can’t exercise jurisdiction in custody case if custody action is pending in other state. Other state can defer. - I

Natural Parent (Putative Father) – Protected liberty interest in child if parent. If parent chooses to pursue development can usually get custody. If the putative father has not registered within 30 days at the putative father registry rights can be terminated. (adoption cases) - I

Petition to legitimize – you have 30 days from notice to file for legitimization or record at putative father’s registry. - I

Termination of Parental Rights – Clear and Convincing Evidence and in best interests of the child. Seven factors that can be considered:

1.) Abandonment2.) Substantial non-compliance with permanency plan

3.) Removal for 6 months for abuse or neglect4.) Severe child abuse (includes allowing another to do so)5.) Sentence of parent to 2 or more years of imprisonment for conduct against

child or sibling. 10 years sentencing for any child under 8 will do it.6.) Mental incompetence7.) Conviction or civil liability for intentional wrongful death of other child’s

parent. - II

Whether to grant divorce – In absolute discretion of trial judge. - I

Cousins – Allowed to marry in TN - I

License Requirement – License is required to marry in TN. - I

Pendente Lite – Don’t have any money and make other spouse pay for everything including divorce. - I

Residency Requirement – 6 months in TN – II

Temporary Parenting Plan – Parents can enter into orally or court can order. With exception to willful abandonment or abuse. – I BITE ME

Venue for divorce – A divorce suit may be brought in the county where either the defendant resides or where the parties resided at the time of their separation, or if the defendant is a nonresident, in the county of the plaintiff’s residence. – I

Mediation – If couple can’t agree on MDA, then court can order mediation. - II

Child born during marriage – Presumptively child of Husband. DNA evidence can move presumption to other party. – I

Order of Protection – Prohibits one spouse from threatening or abusing the other spouse and would subject them to the comtempt power of the court, including possible jail sentence if violated. – I

Grounds of inappropriate marital conduct – Can now be used in TN because any series of misconduct that makes cohabitation unacceptable may form the basis for this legal ground. - I

REMEDIES

Breach of Contract – Actual and Consequential damages - IIIII

Punitive – Hodges vs. Toof standard in TN. Motion by defendant to bifurcate trial if punitive requested. Only available upon a showing of a standard greater than negligence

or gross negligence (reckless or above) by Clear and convincing evidence & generally not recoverable in contracts. Trial must be bifurcated.Factors to be considered are:

1.) financial condition2.) represhensibility of conduct3.) awareness of harm and reason for it4.) expense by the plaintiff5.) defendant’s profit6.) previous punitive damages awards7.) remedial action or offered prompt settlement8.) any other circumstances relevant - IIIIIIIIIII

TN CLAIMS COMMISSION – Actions must be brought here in which the state of TN is the defendant. - IIII

Consequential Damages – Value of rental home if driven from home. If Crop: Early in season cost to plant plus rental value of land. If near harvest then fair market value of crop less labor and costs. - III

Criteria for punitive – Defendant’s financial condition and net worth, the nature and reprehendsibility of the defendatn’s conduct, the defendant’s awareness of harm and motiviation, the duration of the defendant’s misconduct and attempts to conceal, the expense the plaintiff has borne in attempt to recover losses, the defendant’s profits form her misconduct, prior punitive damages awards for the same wrongful act, remedial action by the defendant or settlement offers, and any other circumstances bearing on the proper amount. 10X is too much according to S.C. – II

Collateral Source Rule – Prevents one from asserting no damages because plaintiff has already received compensation due to other source. Don’t punish plaintiff because they are fiscally responsible enough to have insurance. - I

Attorney’s Fees – Only available by statute or contract. – I

Restraining Order – filed in Chancery Court pursuant to T.R.C.P.. Good for 15 days and sworn statement alleging facts and that irreparable damage will occur. This can be done ex parte. Attempt to inform. – I

Public Interest – equitable relief form the court is in public interest, which is served by the preservation of things of historic and environmental importance. - I

Temporary Injunction – I

Permanent Injunction - I

PROFESSIONAL RESPONSIBILITY

Business Card, Live telephone Solicitation, in-person solicitation – A lawyer, personally or through an agent, must not seek fee-paying work by initiating a personal or live telephone contact with a prospective client with whom the lawyer has no family or prior professional relationship. This is not good even if recommended by another to contact them. - IIII

Fee Splitting – Can’t do (including referrals) with lay person. Exceptions to this are ProBono and authorized referral services. - IIII

Attorney Client Privelege – Client holds privilege. Covers information told to attorney for the purpose of obtaining legal advice. Can apply in corporate situations. High ranking corporate officials and other employees possibly. Limited to communications between the parties and not covering anything attorney learns on their own. If communicated to 3rd party privilege destroyed. Privelege lasts indefinitely b/c termination of relationship doesn’t kill it. – IIIIII

Duty of Confidentiality – lawyer must not reveal info relating to the representation of a client. Applies to all info regarding the client relating to representation regardless of when or how acquired. Lasts indefinitely. Exceptions to this duty include:

1.) Client consent2.) Prevention of criminal acts likely to result in death or serious bodily harm3.) Required by court, ethics rules, or law, but must be final order.4.) Need to collect a fee or protect reputation. - IIIIII

Former Associate on opposing counsel – Can be done as long as not previously directly involved w/client. Safeguards must be put in place. Knowledge imputed to all other members of law firm, so a “Chinese wall” must be erected within the firm. - IIII

Fraud by Client – Attorney may not assist in fraud. Urge client to tell truth. If client does not come clean, then they must withdraw. - IIIIIIII

Conflict of Interests – Lawyer must not accept representation of a client with interest adverse to that of another client. Such representation can be ok if not substantially related to the current client where information would not hurt other client. To avoid: Don’t take a case that would adversely effect the exercise of independent and professional judgment. 1.) adverse interest to another client no good unless lawyer reasonably believes representation will not affect relationship with other client and both consent, and 2.) if it would be materially limited by lawyer’s other interests and responsibilities unless lawyer believes ok and client consents. - IIIIII

Multiple Clients – Questions to ask: - III1.) Whether there is a substantial relationship between the two legal matters, and2.) Whether this case involves personal injury and product liability rather than a

trademark issue.a. Can get around by making full disclosure in writing and signed by the

parties.

Zealous and Competent Representation – A lawyer must act w/reasonable diligence and promptness in representing a client. Also must keep client informed about status of matter and promptly comply with reasonable requests for information. - III

Statements on Pending Trial – If the attorney knows or should know statements will have substantial likelihood of materially prejudicing trial. Include: Info likely to be inadmissible & opinion of guilt or innocence. - III

Jury Tampering – Must report immediately. - I

Multiple Clients w/differing interests – Can’t represent both, even if no longer representing other client – II.

Personal Injury Victims – Can’t contact victims by mail (never personally) for 30 days for purposes of representation. - II

Unjustified Expectations – Lawyer must not give unjustified expectations as to judgment he may obtain. - I

Disclosing Client Confidences – A lawyer is responsible at all times to ensure that employees and fellow firm members don’t disclose or utilize confidential info obtained from a client. - I

Imputed Disqualification – When a substantial relationship exists between the subject matter of the prior employment and the current employment. Raises presumption of shared confidences. - II

Lawyer as witness – Can’t take case if you know you’re going to be a witness. - I

Splitting Fees w/other lawyers – If client consents and the division of fees is disclosed to the client and both lawyers take responsibility then it can be done. - I

Financial Advances to Clients – No financial advances, loans, or guarantees may be made other than the advancement or guarantee of litigation expenses with the understanding that the client remains ultimately responsible for payment. - I

Statements in General outside of court – In regard to matters at issue in a civil or criminal trial a lawyer may not make an extrajudicial statement referring to a party’s performance on any examinations or test or her refusal or failure to submit to them. Furthermore, a lawyer may not make an extrajudicial statement referring to the credibility of a party or witness. - I

Claim unwarranted by law – A permissive withdrawal by attorney is justified. – I

Personal Representative of Will – Don’t be if you have to claim share of will – I

Competent Representation – Must have been knowledgeable concerning the matter - I

Retainer Fees and Refunds – Attorney entitled to reasonable value of services up to time of removal and must refund the rest. - II

What is reasonable fees? – I

Rule 11 – Lawyer may rely upon client’s recitation of facts unless they are suspicious. Need not consult opposing party. A reasonable inquiry must be made under the circumstances. Also requires that the claim is warranted by existing law. If I tell client of bleak outlet and proceed that is ok. - II

Timely Appeal – Not filed constitutes both malpractice and a violation of ethics rules. - I

Forms of Discipline – Private reprimand, public censure, suspension, or disbarment. – I

Television Advertisement – Misleading and likely to create unjustified expectation about results is no good. Ads must include office address. Do not require disclaimer showing not a specialist in the area. – I

Assisting legal advice by non-lawyers – Can in no way assist 3rd party in giving legal advice. YOU ARE THE LAWYER. – I

Tell client – All relevant information so that the client can make informed decision regarding the representation. – I

Unethical Fee – Should all be forfeited, and quantum meruit is not available. – I

Must Disclose – confidence if substantial bodily harm or death likely – I

Supervisory and Associate Lawyer – Must make reasonable efforts to ensure that associate follows rules of professional conduct. A supervisor is in violation himself if he orders or ratifies the conduct. – I

Fraud on Court – Lawyer prohibited from making false statement to the court or tribunal. Know co-counsel must take action to mitigate the consequences caused or else is subject to discipline. - I

CIVIL PROCEDURE

Rule 15 – TN – Adding a Defendant – Add a new defendant if new defendant had an actual knowledge or should have known they were a defendant, that but for mistake or misnomer they would have been original defendant. - III

New Tortfeasor named after answer – 90 days for plaintiff to amend from filing of answer where new defendant is named. Still timely as long as original suit filed within statute of limitations. Cases have said can’t do if originally knew of names or identity or parties when original suit filed. - III

Summary Judgment – No genuine issue of material fact for jury to decide. The moving party must demonstrate that they are entitled to Summary Judgment as a matter of law. Partial or full summary judgment available. Court must consider pleadings, affidavits, and discovery filed. Affidavits supporting or opposing motion must be based on affiant’s personal knowledge, state facts admissible in evidence, and affiant must be competent. You must respond with citation to an affidavit. - III

Long-arm statute – gives specific jurisdiction to the court. International shoe case. Normally served through SOS. – III

Circuit Court – TN court of general jurisdiction. Power in any matter as to which exclusive jurisdiction not given to other court. Can grant injunctive relief by statute. Must take personal injury cases and reputation injuries. Concurrent jurisdiction w/Chancery except for peronsal injury involving unliquidated damages.– III

Venue – Good if where: Cause of Action occurred, defendant domicile, or where defendant can be found. - III

Personal Injury – 1 year Statute of limitations. - I Chancery – Hears cases on UCC in law or equity. - I

Improper Venue – A cause of action for personal injury must be brought where the incident occurred, where defendant resides, or wherever you can serve the motherfucker. Can be waived by appearing and failing to raise an objection. - I

General sessions – Can only hear claims up to $25,000. Appeals from general session are heard in Circuit Court. An appeal from this court is a completely new trial. - I

Jury Trial in Chancery – The use of the jury here is limited to a determination of material fact in dispute. The jury must return a “special verdict”, and this verdict is binding. - I

Appealed jury verdict – Can only be set aside if no material evidence to support. - I

Administrative Appeal – Chancery court is venue and has jurisdiction. Standard of review only overturn decision if there is no evidence to support the decision below OR the board acted illegally. - I

For Contribution – 3rd party complaint for co-maker. If within 10 days of answer then leave of court not needed. - I

Judgment Lien – A lien upon a judgment debtors land with a certified copy of the judgment in recorded in the lien book in the Register’s office of the county in which the land is located. - I

Judgment enforced – Done by obtaining an execution directing the sheriff to seize the judgment debtor’s property. The property is then sold to satisfy the amount owed pursuant to the judgment. Execution should be obtained from the court in which judgment was entered. Get execution from same court. - I

Lien Lost unless execution within 3 years of judgment entry, but still can get execution up to 10 years after judgment entered. CONFUSED HERE - I

Tenants by the entirety – No defense to judgment lien. – I

Declaratory Judgment – Must have real interests and face an injury peculiar to themselves. Or otherwise known as standing – I Challenging state statute – Sue Governor because he enforces laws and notify attorney general. These can be filed in circuit or chancery court and must be brought in Davidson county where executives are. – I

Service of Process – Summons not timely served b/c writ loses efficacy 30 days from issuance. You can serve it on a person of suitable age and discretion who lives in the house. – I

Judicial Immunity – Judges have absolute immunity for judicial decisions. – I

Real & Personal Property – Measure of damages for destroyed property is FMV at time of destruction – I

Motion to Amend – Can be done reasonable time before trial so long as justice allows. Judge is supposed to allow the amendments of pleading appropriately. Can amend as a matter of right before the answer is filed. – I

Concurrent Jurisdiction – Can transfer to other court w/o dismissing suit if in wrong venue. – I

Diversity of Citizenship Jurisdiction – Residents in 2 different states with an amount greater than $75,000 at issue. Removal is impossible if one of the defendants of the forum state. – I

EVIDENCE

Character Trait Evidence – Must be in regards to a relevant character trait. Must be elicited on cross-examination. Certain cases allow this evidence. For impeachment purposes need to involve traits of untruthfulness. - III

Expert Witnesses (TN) McDaniel Test (702) – may testify if the subject matter is one where scientific, technical, or other specialized knowledge will substantially assist the trier of fact in understanding the evidence or determining a fact issue. May be based on facts inadmissible in evidence if the facts are of a type reasonably relied upon by experts in the particular field. Usually not discoverable as to finding, but can be taken by interrogatory –

Factors for expert witness:1.) Has the theory or technique been tested2.) Peer review or publication3.) Error rate if any4.) Is theory generally accepted in relevant scientific area5.) Expert did research independently of litigation – Heavy burden b/c of SUBSTANTIALLY in TN Evidence (if layperson can do) - IIIII

Prior Testimony – Witness not available and accused had an opportunity to cross-examine on same subject matter. II

Prior Identification – Declarant must be available or it is hearsay. - II

Impeachment by Prior Inconsistent Statement – Can be used to impeach even if declarant unavailable – II

Best Evidence Rule – Original writing of operative or dispositive instrument must be offered into evidence if available. Photocopies are equally admissible as original. – II

Best Evidence Rule – Original writing of operative or dispositive instrument must be offered into evidence if available. Photocopies are equally admissible as original. If unavailable for a reason other than the serious misconduct of the proponent of the eveidence, a photocopy or duplicate is admissible. If other side has original and you can’t get it copy or oral is ok. Findings of an agency or public office are not admitted. Lay a foundation for certain documents - II

Hearsay – An out of court statement asserted for the truth of the matter asserted. If it doesn’t fit this definition it can come in. – II

Admission Exception – In TN, it is a hearsay exception unlike federal where it is allowed outside the rules of hearsay. - II

Business Records Hearsay Exception – Makes admissible for the truth of the matter asserted statements made by declarants under a business duty to report accurately, so long as the records are made and kept in the regular course of business. It is also necessary that a custodian of records lay a foundation. – II

Relevance – Evidence only admissible if relevant only admissible to prove relevant issue. Evidence is relevant if: See page 15 – I

Custody Hearing – Students taped recordings can be brought in as long as trustworthy. Determination of trustworthy made by trial court. Under 13 substantive. I

Purpose of diagnosis and treatment – doctor can testify to past or present symptoms told to him for diagnosis or treatment, but in TN it has to be made for diagnosis AND treatment. I

Opinion of Lay Person – Must be rationally based on own perceptions and helpful to jury. I

Spousal Privelege – Doesn’t apply in TN and spouse must take the stand. – I

Marital Communications Privelege – In TN must be privileged communication and to the benefit of relationship. - I

Checks – Commercial paper is self-authenticating. - I

Accountant-Client Privelege – In TN, a CPA can’t be required to divulge any information which may have been communicated to him or obatained by him by reason of the confidential nature of his employment. This privilege doesn’t apply to criminal cases. - I

Specific Acts of Conduct in Civil Cases – Not admissible due to the fact they are generally too remote and prejudicial to satisfy the rules of evidence. - I

Citations – Merely accusations and not admissible under hearsay. - I

Authenticating Photographs – Anyone can do, so long as they are familiar with the scene depicted. – I

Excited Utterance – While under stress caused by an exciting event, you make a statement about the event. Is admissible as a hearsay exception rule. – I

Present Sense Impression – No exception to hearsay in TN – I

Arrest under statute – Assumed constitutional as long as statute permits the arrest regardless of how minor the offense may be. – I

Misdemeanor Arrest – If done without warrant must be in presence of officer, except for domestic violence cases – I

Voluminous business records – Can be summarized, but must be made available. – I

Forfeiture Exception – Forfeiture by wrongdoing exception allows admission of a hearsay statement against a party that has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. – I

Prior Convictions – Usually ok for felony (even if not for dishonesty) so long as the probative value is not substantially outweighed by the danger of unfair prejudice. – I

Non-hearsay – To show effect on the hearer is non-hearsay by definition. – I

Recorded Recollection – Hearsay that will be let in if 3 requirements are met:1.) declarant and witness are the same person.2.) The witness has insufficient recollection to testify fully and accurately3.) Notes and such were made when matter was fresh in mind of declarant4.) Can assure from witness stand that the documents reflect his prior knowledge

correctly. – I

CRIMINAL PROCEDURE

Probable Cause – Reasonable suspicion to believe act is more probably than not. - IIIIIIIIII

Search incident to arrest – Can be done AT TIME OF ARREST. Defendant’s person and immediate area. Car can also be searched, but not without probably cause. - IIIIIII

Miranda Rights – Must be read before custodial interrogation. - IIIIIII

Magistrate Rule – Must be brought before magistrate within 48 hours, though no real remedy. Exclusion of evidence obtained as result of holding can’t be used. - IIIIII

Plain View – Anything within plain view is susceptible to seizure. Criminal nature must be apparent. - IIIIII

Chain of custody – Must be able to reasonably track evidence. - III

Inventory on contents – Administrative search when state or municipality takes possession of the vehicle. Not solely for the purpose to find contraband. When the car is impounded. - III

Blue Light Rule – In TN you are seized when the blue lights come on. Also ordering to stop when on foot. In Federal these are not seizures. - II

Inevitable Discovery Doctrine – Evidence that normally would not come in will come in if it would have been found by the police anyways. - II

General Sessions – Can hear misdemeanors, but not an absolute right. - I

Waiver of jury trial – Can be waived, but need approval of trial court and district attorney. The waiver must be knowledgeable. - I

Fines by Jury – Jury must award any fine in TN greater than $50. Judge can lower amount, but can’t raise. - I

Facially valid warrant – If executed in good faith then evidence obtained in search will not be excluded from trial. - I

Peremptory strikes – If crime involves a punishment for more than one year imprisonment each side should be given 8 peremptory strikes. - I

Double Jeopardy – Federal and State are two separate charges and don’t constitute Double Jeopardy. Defendant in a criminal trial can’t be retried for same crime twice. Attaches when jury sworn in for criminal, first witness on issue of guilt in bench trial. Several exceptions to DJ:

1.) Hung jury2.) Appeal by the Defendant3.) Mistrial due to manifest necessity – When a jury is biased or is unduly

influenced. - II

2nd offense DUI – Vehicle may be subject to Civil Forefeiture. State subject to creditor’s lien if creditor had no knowledge of illegal use. - I

Automobile Exception to search warrant requirement – You can search a car with probable cause and no warrant, but not a house. - I

Preliminary Hearing – Entitled to in 10 days in confined and 30 days if on bail. – I

Terry Stop – Cops can pat down or question people who they have a reasonable suspicion are conducting criminal activitiy – II

Multiple Sexual Offenses – Prosecution must elect specific events or incidents for which conviction is sought to ensure a unanimous verdict on each individual offense or incident. The defense has the right to require that the prosecution elect the specific event or incident upon which it seeks conviction on the single count of rape alleged in the indictment. – I

Alibi Defense – Obligation to provide notice of intent to do so only if the prosecution first supplies specific notice of the time, date, and place of the offiense. If state does so defendant must provide notice of the specific place where he claims to have been at the time of the crime, including the names of any witnesses that will be called to establish or corroborate the alibi claim. Prosecution then gives list of evidence and people to rebut alibi defense. Failure to comply is means for exclusion of alibi witness if good reason not provided. - I

Capital Case – Penalty phase, jury only able to use statutory factors in determining sentence including prior convictions felony for violence against others.other factors include:

1.) commission of murder particularly heinous or cruel2.) Post mortem mutilation - II

Minors – Immediate family members can provide victim impact evidence under TN law in Capital Cases. Only relevant to sentencing phase of capital crime – I

Presentence Report – Included in non-capital cases. See above for capital cases and jury. – I.

Speedy Trial – 4 factor:1.) Length of delay must be examined2.) Reason for delay3.) Demanded a speedy trial4.) Prejudice by delay – I

Defendant’s right to testify – Fundament right guaranteed by both the Tn Constitution and the Due Process Clauses of the Fifth and Fourteenth Amendments of the US Constitution. Court must ask Defendant if he is going to testify, defendant’s attorney can’t waive it on his own. Waiver through the court is needed. – I

Post Conviction Review – Relief is available for the infringement or denial of any state or federal constitutional grounds. 1 Year S.O.L.. Begins to run after the final decision of the highest appellate court to which an appeal is taken or the date the conviction is final if no appeal is taken. 2 exceptions to S.O.L.

1.) Innocence based on scientific evidence2.) Newly recognized constitutional rules. – I

Warrant – Needed to search home unless consent or exigent circumstances. – II

Fruit of the Poisonous Tree – Everything found because of the illegal search is thrown out. - I

Bill of Particulars – A Defendant may request a bill of particulars if needed to identify adequately the offenses charged. Should be granted whenever necessary to avoid prejudice or undue surprise. – I

Criminal discovery – Reciprocal and upon defendant requiest can get discovery of any document or tangible thing, materials of defense, or things to be used by prosecution. Can’t get work product. Prior statements of defendant (recordings ok), but this will force reciprocal. Exculpatory evidence must be turned over regardless. – I

Motion for severance – Defendant has right to have charges charged separately unless part of common scheme or plan or would be admissible at trial for other defenses. Severance is also required when necessary when required to ensure a fair determination of guild or innocence. – I

Forfeiture of Vehicle – Forfeiture of vehicle can be done if vehicle was used to transport drugs for resell. Procedure is:

1.) Receipt given2.) Statement for reason of seizure on vehicle.3.) File claim and get hearing

a. These are all available under the DPC of the 14th. – I

Waiver of Miranda – Waiver must be voluntary, knowing, or intelligent. – I

Witness in a criminal case – Can decide whether or not to talk, only way you can order deposition before trial is if there is a likelihood they won’t be at trial. – I

DNA, Blood, voice samples – Not testimonial in nature and 5th amendment doesn’t apply. - I

Lost evidence – In TN, may violate due process if makes proceedings fundamentally unfair. – I

State duty to preserve 1. whether they had a duty to preserve2. what consequences should result

a. culpability of the stateb. signifigance of the evidencec. other evidence of the case highlights the destroyed evidence - I

CRIMINAL LAW

Theft – Knowingly obtains or exercises control over property without consent with intent to deprive. Consent may not be through deception of coercion. IIIII

Kidnapping – A person who is falsely imprisoned and is exposed to substantial risk of bodily harm or confinement results in involuntary servitude. - II

Custodial Interference – Parent removes or detains child knowingly in violation of court order. - II

1st degree murder – Intentional and premeditated killing of another. Deliberation not required. Specific Intent Crime. May be punished by death, life imprisonment with or without parole - II

DUI – Being in operation or in control of a vehicle while under the influence of alcohol or drugs. .08 is a presumption of being intoxicated in TN. - III

Criminal Tresspass – When a person knows he lacks permission and enters another’s property. Class C Misdemeanor. - IIII

Insanity – Requires the defendant to show that he was under such a defect of reason stemming from a disease of the mind, at the time of the crime, that the defendant did not know the “nature or quality” of his act or, if he did know, that the defendant did not know it was wrong. Experts may testify to the effects of a disease on the mind, they may not testify as to the insanity of the person. Must be shown by clear and convincing evidence. Counter evidence by offering expert testimony, offer lay witness testimony, or rely on cross-examination of expert witnesses. The appellate review for this is one of reasonableness and reversed only if no reasonable trier of fact would find it. – II

Accomplice Liability – assisting or encouraging someone in assistance of the crime. – II

Evading arrest – Intentionally fleeing a known police officer. - I

Felony Murder – The killing of another during preparation or attempt of first degree murder, burglary, arson, rape, robbery, theft, kidnapping, aggravated child abuse, or a bomb. This continues through flight from the scene. - I

2nd degree murder – “Knowing” killing of another. This is a general intent crime. - I

Voluntary Manslaughter – Heat of passion and sufficient provocation. There must not be a cooling off period. - I

Involuntary Manslaughter – Does not apply in TN. - I

Attempt – Person has specific intent to commit crime and takes substantial step. - I

Statutory – In TN, all crimes must be defined by statute. No Common Law Crimes in TN. - I

Intoxication – Not a defense in TN, but can negate specific element of a crime. - I

Reckless Endangerment – Recklessly engages in conduct that may place another in danger of imminent death or serious bodily injury. - I

Arson – Knowingly damages any structure by fire or explosion w/o consent of all owners including mortgagee. - I

Aggravated Arson – Arson with someone inside the building. - I

Vehicular Homicide – Must prove BRD that defendant recklessly operate a vehicle resulting in the death of another. - I

Reckless Operation – established by specific proof. This conduct creates substantial risk of bodily injury or the operator was under the influence. - I

Vehicular Assault – Exist under TN law, no crime of aggravated vehicular assault. Requires proof that defendant operated vehicle while intoxicated and such operation resulted in serious bodily injury. - I

Aggravated Vehicular Homicide – Previously been convicted of a DUI or other similar offense. – I

Death of a Fetus – Viability is the key. – I

Assisted Suicide – Provided means or participated in the act that caused the death. Knowing that death was going to occur. Failure to prevent suicide is not a criminal act in TN. - I

Lesser Included Offense – if the statutory elements are included as elements of the other crime or:

1.) the crime requires a less culpable mental state; or 2.) the crime is based on facilitation, solicitation, or attempt. – I

Juvenile – Any charges must be filed in juvenile court. They can transfer the charges up if they are over 16. – I

Aggravated Burglary – The entry of a habitation without the consent of the owner and the commission of a theft inside the habitation. – I

Vandalism – Knowing damage to or destruction of real or personal property. Felony is property is worth over $500?. – I

Intentionally intercepting of a message – Includes wiretapping a phone line, but a party to conversation can do. Makes it a crime to “procure” someone to do it. Unlawful wiretap is also felony. – I

Solicitation – Asking someone to commit crime or paying – I.

Assault (Domestic assault if against spouse) Misdemeanor – Intentionally or knowingly caused another to reasonably fear bodily injury. – I

False Imprisonment – Is a crime definition is same as torts. - I

WILLS & ESTATES

Proper Attestation Clause – 2 non-interested witness signed @ time and in presence of each other and testator. Can have affidavits for court. Intersted parties can sign, but entitled only to intestate share. - IIIIIII

Holographic Will – All material terms written in handwriting & must be signed. No witnesses or date needed. 2 disinterested witness must verify writing in court. - IIIIIIII

Testamentary Capacity – Must be 18, understand nature and act, nature and extent of property, and nature and extent of the person who are the natural objects of your bounty. - IIIII

Undue Influence – Can be partially voided. If will of another is substituted for that of the testator. TN is presumed if there is a confidential relationship and person was active in procuring the will. Some factors:

1.) Confidential relationship b/w beneficiary and T which give suspicious circumstances (Presumption of undue influence arises and burden shifts to Defendant).

2.) T’s advanced age and failing health.3.) B’s role in securing will.4.) Secrecy5.) Lack of independent advice6.) Difference in will and stated intentions. - IIIIII

Elective Share – 1-3 years is 10%. 4-6 is 20%. 7-9 is 30%. Over 9 is 40%. Must be filed later of 6 months after appointment or 9 months after death. The year’s support is an amount set by the probate court for the surviving spouse’s maintenance for a year based on the spouse’s standard of living, taking into account the condition of the estate. Personal Property up to $50,000. Homestead is a value of $5,000 in TN to interest in property of the home. The right to elect dies with the spouse and representative can’t elect - IIIIIIIIIII

Intestate – 1/3 or a childs share, whichever is greater. - IIIIIII

Nuncupative Will – Oral will. Can’t revoke prior will. Can’t dispose of real or personal property in excess of $1,000. Military is $10,000 in time of duty. 2 witnesses and

statement must be reduced to writing within 30 days. Also must be in imminent peril of death. - IIIIIII

Mutual Wills – Not treated as contractual unless:1.) Contains terms of contract2.) Express reference to a contract, or3.) Evidence of a contract exists. A breach action can be brought if proven and

new will. - III

Real Property – Vests upon death from time of death. - IIII

Multiple wills not dated – Submit all to court and extrinsic evidence is available. Later wills revoke earlier wills as to inconsistencies. - IIII

Illegitimate & Pretermitted Children – Can inherit by clear and convincing. Not being born at time of death is ok, but will must be written before birth. - IIII

Revocations by new will – A new will if it does not revoke former wills then it only revokes provisions of the previous will and will work more as a codicil. - IIII

Probate of will – Must be submitted to probate within 6 months of date. - III

Doctrine of Election – File by latter of 9 months after death or 6 months after executor appointed. You get statutory allowances, year’s support, and elective share. – IIII

Conditions in Will – Absolute restraints on marriage are invalid, but if limited in time and scope reasonable. - I

Murder of Spouse – Can’t inherit - I

Spendthrift Trust – Special provisions on how money spent and valid in TN. - I

Codicil – A change to a will, but with the same requirements as a will. - I

Simultaneous Death – One must survive the other by at least 120 hours. Tenancy by the entirety converted to Tenancy in Common. Land vests immediately - II

Pretermitted Child – One born after the will has been executed of decedant, and is not expressly disinherited takes intestate share - II

Monies loaned to decedant – claim must be brought within 4 months after notice of the pendency of the administration, or his claim will be barred. Anything not filed within 12 months of decedant’s death is barred. – I

Adopted Child – Treated the same as an actual child – I

Per Stirpes – Each child dead or alive takes an equal share – I

Anti-Lapse Statute – Where a gift is made to a person who predeceases the testator, if the deceased donee leaves issue surviving the testator, and the testator has expressed no different intention in the will, then the surviving issue the legacy and it does not lapse. – II

Ademption – Basically if something is already given away you can’t take it under the will unless decedant has regained possession – II

Restriction against remarriage – OK in TN if for limited amount of time. – I

Revocation – Can be done by physical act with intention to revoke. Where will found in mutiliated condition and testator has possession presumption arises testator meant to revoke. – I

Personal Representative and Sole Beneficiary – No bond required. Also ok if waived in will. - I

Role of Administrator – As follow:1.) Preference to next of kin2.) See proper notice given to creditors by publication and actual notice to

creditors reasonably ascertainable.3.) File a TN inheritance tax return4.) Upon obtaining release from TN Dept of Revenue proceed to close estate on

his statement in lieu of accounting.5.) Generally an inventory is required and notify each residuary distrubee of the

estate.6.) Distribute assets – Questions as to assets he would be responsible for

resolving them or presenting them to the court. – I

Insurance – Insured presumed to survive the beneficiary if no evidence to show they died other than simultaneously. – I

Mistake – Only voids a will in TN if the mistake is evident from the face of the will, and the fact that the testatotr would have made a different will, but for the mistake, is also evident from the face of the will. - I

Fraud or misrepresentation – Must be of an active, intentional, deceitful nature. Can void a will. There can be partial invalidity in a will. – I

Divcorce – Revokes any gift in an existing will to the other party to the divorce, unless the will provides to the contrary. – I

Doctrine of Dependant Relative Revocation – If later will had no operative effect it may invalidate prior wills. - I

Contesting a Will – 2 year S.O.L. from when it was admitted to probate – I

TN Class Gift Statute – applies when:1.) there is a gift to a class which can increase or decrease by births or deaths;2.) the gifts vest in the future at a subsequent time or upon a subsequent event;3.) at least one of the class members has died before the time for vesting, leaving

issue which survives to the time of vesting, and;4.) the testator did not evidence a clear intention that issue of a deceased class

member not take.a. If this applies the issue of the class will take per stirpes. - I

CONSTITUTIONAL LAW

Time, Place, Manner restrictions – OK as to 1st amendment so long as viewpoint neutral and subject matter neutral. – IIII

Free Speech Content Regulation – Gov’t must show compelling interest and no less restrictive means (Strict scrutiny). TN is said to have more rights. – IIIII

Aguilar/Spinelli – To obtain warrant in TN must show:1.) Informant is reliable as well as2.) The facts upon which the warrant is based are reliable

Officers can bolster informants credibility for either prong. – III

Equal Protection Claims (Due Process) – Reviewed under 3 possible standards:1.) Rational basis test2.) Substantially related to gov’t interest – Intermediate scrutiny – Content neutral

public forum restriction.3.) Strict Scrutiny – Compelling interest sought with no less restrictive means

available. – Non-content neutral - III

Time, Place, Manner – OK as a restriction on Speech. In order to work they need to be:1.) Viewpoint neutral – must not discriminate.2.) Rationally related to legitimate gov’t purpose. - III

Where to bring charges TN – County where incident occurred. Preponderance of evidence is all that is required. – II

Games involving pure chance – Lottery provision. Skill is ok, but pure chance is against the TN constitution – II

Amendment to Constitution (TN) – There are 2 ways this can be done:1. Convention

a. Legislature proposes to have a constitutional convention. b. Voters vote to approve or reject convention and elect delegates.

c. Convention held if approved and amendments written. d. Submit amendments to voters, if successful in constitution

2. Leglislativea. Amendment proposed by legislature and approved.b. Wait for general election to intervene, in which new legislators

elected.c. Legislative houses approve by 2/3 vote of total members.d. Wait for election, and if approved by majority of votes cast for

governor goes in as amendment. – II

Right of Procreation in TN – Right to avoid parenthood is a fundamental right along with the right to procreate. - II

Right to Counsel (6th Amendment) – Attaches after first formal charge (Indictment). – II

Change of Venue – Can leave in county and bring jurors in. – I

TN Right to Counsel – Attaches when warrant issued, appear before magistrate, or indictment. – I

Lineup prior to charges – OK to have without lawyer. – I

Ineffective assistance of counsel – Requires 2 things:1.) Ineffective assistance of counsel2.) Would have altered outcome of case. – I

Article I, Section 7 – Free from unreasonable search and seizure including curtilidge around home. – I

Totality of Circumstances (Federal) – standard for warrant. - I

Ex Post Facto Provisions – Mandates that laws may not be applied retroactively if to do so would: 1. make an act criinal which would not have been criminal at the time it was committed, 2. increase a punishment after the crime was committed, or 3. lower the burden of proof for conviction. - I

Unconsitutional City Ordinance – violation of equal protection clause can be heard in chancery, circuit, or federal district. Seek a declaratory judgment. - I

Incompetence – Under the Due Process Clause of the 14th Amendment to the federal Constitutuion, defendants must be able to understand, both rantionally and factually, the charges against them and to consult reasonably with their attorneys and assist in their own defense. Similar under Article 1, Section 8 of TN Constitution. - I

Incitement – The speech must be 1.) directed at producing, and 2.) must be likely to produce 3.)imminent lawless action. Very difficult test to meet.

Legislation barring ability to donate money – Violates EPC of US Constitution. Applicable to states under 14th amendment - I

Law of the Land – EPC of TN. - I

Right to donate money – Is a fundamental 1st amendment right. – I

Delegaton of regulatory functions to industry members – violation of ude process and is forbidden by both the federal and TN constitutions. Decision-makers can’t have personal stake in outcome. – I

Removal of S.C. Justice – 2 procedures1.) Impeachment Article 5 TN Con – Crimes committed by office holder in

capacity. House votes to impeach by majority. Senate holds trial. Chief Justice presides unless being tried. 2/3 vote in the senate will result in removal from office.- I

2.) Removal from office – 2/3 vote in both houses. No provision for a trial, but official entitled to statement of charges 10 days before vote on removal, and roll must be called when vote takes place. Need not be for misdeeds for judge in official capacity, but must be for some personal of official misconduct. – I

Parental Autonomy – TN S.C. has recognized a parental right of privacy in the TN Constitution that protects parental rights from state interference, absent a showing of harm to the child. – I

Article II, Section 28 – Provides that the legislature may tax income from stocks and bonds, but does not empower the legislature to tax income from other sources; the implication is that the legislature may not do so. – I

Non –public forums – Reasonably related to a legitimate interest – Must be viewpoint neutral, but not subject matter neutral – Schools, Airports, prisons, government building, post office, Sidewalk in front of post office – I

Pornography – unprotected obscenity – Lemon Test (Rational Basis):1.) Appels to the prurient interest in sex (local or national standard)2.) Portrays sex in a patently offensive way (local or national standard)3.) & Does not have serious literary, artistic, political, or scientific value.

(National Standard) – I

TN Right to Privacy – Marriage, parenting, procreation, and intimate or sexual relationship. – I

TN Abortion – TN uses strict scrutiny rather than undue burden. – I

Disclosure under TN Constitution – TN Courts have refused to extend constitutional protection to the nondisclosure of personal information. – I

Mandatory collection of blood samples – Must meet search & seizure requirements and will not. Must be a link between the proposed search and the achievement of the state interest. – I

CONFLICTS

Most significant relationship – To the occurrence and the parties. Look at place of injury, the place of the conduct causing the injury, the domicile of the parties, and where the relations of the parties are centered. – II

Choice of law in K – TN will usually honor unless issue is not one the could have foreseen when forming the contract and state chosen has no material connection to the parties. – I

General Principles – If dispute over contract validity apply law where formed. If dispute over contract performance apply law where performed. – I

Laws repugnant to public policy – TN doesn’t have to enforce laws of another jurisdiction that are regpugnant to it’s public policy, unless it is a full faith and credit situation.

Diversity Cases – Federal courts are required to apply the substantive law of the court in which they sit. Resolve them the same as the TN S.C. – I

Procedural – Forum applies it own procedural law such as S.O.L. – I

Procedural Laws- Those whose purpose is to promote the fair, efficient, and reliable conduct of litigation. - I

Substantive – Effects outcome of the case such as damages. - I

PERSONALTY

Gift – donative intent and transfer is all that is needed. Constructive deliver may substitute when actual deliver would be impracticable or a deed of gift would work. - IIII

Replevin – Action to recover personal property – IIII

Thief – Has void title. - IIII

Lost Property – Finder of lost property acquires the right to the property to all the world except for the rightful owner. - III

Mislaid Property – The owner property is the rightful owner. The 2nd owner of land where property found and 3rd is the person who found it. This is all buried in soil and treasure trove has been abolished. – IIII

Abandoned Property – Property owner voluntarily relinquished all ownership w/o any reference to any particular person or purpose. Belongs to the finder and finder is superior to all the world. – II

Buyer of personal property – receives same property rights as that of the seller. - II

Adverse Possession – Hold open and public possession of property under claim of right for 3 years. – I

Tacking – Allowed, but anyone who has knowledge of theft of the property is presumed to hold it secretly and can’t be tacked. – I

Secured Party – taking a security interest in personal property gets no greater right in it than those of the debtor through whom it is claiming. – I

Engagement Rings – Usually viewed as a conditional gift upon marriage. Some courts say ring must be returned and there are no cases in TN on this matter. – I

Criminal Trepassers – can’t have proper right to abandoned property. – I

Bailment – Loaning property to the other. Through no fault of bailee not responsible period. Different standards of care depending on conditions:

1.) Gratuitious Bailee for bailor’s benefit –Very little liability. Bad Faith or gross negligence.

2.) Gratuitous bailee for bailee’s benefit – High degree of care and slight negligence will do it.

3.) Bailment for hire – Ordinary care - I