I am happy to announce that my firm won a significant case in the Tennessee Court of Appeals last month. The case is Sabaski v. Wilson County Board of Education, et al. The appeal was from a dismissal by the trial court of our claims for false imprisonment and assault. The basis for the dismissal was the defendants' assertions that the plaintiffs must first exhaust their administrative remedies under the Individuals with Disabilities Education Act (IDEA).
Our position was that IDEA only required exhaustion when the basis of the lawsuit was a federal statute that was enacted for the protection of disabled individuals (such as the Americans with Disabilities Act). Since the plaintiffs causes of action were grounded in state law, exhaustion was not required. The Court of Appeals agreed and reversed the trial court and remanded the case, which will proceed to trial.
Since this opinion is very detrimental to the defendant, far beyond the scope of this single case, I expect them to seek review by the Tennessee Supreme Court. It will be interesting to see if that court accepts the case.
Anyone interested can read the opinion by clicking here.
Tuesday, January 11, 2011
Friday, January 7, 2011
“Practice Points” for Dealing with Divorce
I am an attorney practicing primarily in family law matters, including divorce, child custody, child support, and other domestic issues. At the risk of sounding cliché, I enjoy this practice area because I love “working with people.” I have made some observations about particular behaviors people seem to fall victim to time and time again. This blog will give some practical advice to individuals who may be thinking about getting a divorce or who are currently going through one.
I offer the following “Practice Points” to get the discussion started:
1. Does your spouse call you constantly to attempt to harass or threaten you?
*Practice Point #1: You do not have to tolerate this harassment, abuse or threatening behavior.
As soon as your divorce is filed, a temporary injunction is put in place while the divorce is pending to prevent any harassment, threats, or abuse of any kind at any time, and the injunction also prevents disparaging remarks made while in the presence of your children or made in front of your employer.
If you have not yet filed for divorce, you still have the right to remain free from fear and harassment. If the threats are severe and cause you to fear for your safety or the safety of your children, you might consider filing for an order of protection, restraining order, or no contact order.
2. Does your spouse threaten to stop paying child support if you don’t comply with his or her latest demand or request?
*Practice Point #2: If the court has ordered child support, the spouse may not stop payments until there is another court order stating that payments may be modified or stopped.
If your spouse stops child support payments, he or she may be held in contempt of court for failure to comply with a court order. Your spouse is simply trying to manipulate you when he or she threatens to stop paying child support. He or she does not have the right to stop payments until there is a new court order in place to modify the support amount.
The consequences of being found in contempt vary, but a contempt charge may result in the violator being put in jail for up to six months for this violation of a court order to pay child support. In addition, the violator will be required to pay back the amount owed, and this “back child support” is commonly referred to as an arrearage.
I welcome the submission of any question concerning child support, divorce, or child custody matters. If any reader would like it to be addressed either in the blog or to the reader personally, please contact me and I would be happy to provide some information. My contact information is:
Rachel Rieger, Attorney
Tim Hatton & Associates
Phone: (615) 453-9934
E-Mail: Rachel@lawyerhatton.com
I offer the following “Practice Points” to get the discussion started:
1. Does your spouse call you constantly to attempt to harass or threaten you?
*Practice Point #1: You do not have to tolerate this harassment, abuse or threatening behavior.
As soon as your divorce is filed, a temporary injunction is put in place while the divorce is pending to prevent any harassment, threats, or abuse of any kind at any time, and the injunction also prevents disparaging remarks made while in the presence of your children or made in front of your employer.
If you have not yet filed for divorce, you still have the right to remain free from fear and harassment. If the threats are severe and cause you to fear for your safety or the safety of your children, you might consider filing for an order of protection, restraining order, or no contact order.
2. Does your spouse threaten to stop paying child support if you don’t comply with his or her latest demand or request?
*Practice Point #2: If the court has ordered child support, the spouse may not stop payments until there is another court order stating that payments may be modified or stopped.
If your spouse stops child support payments, he or she may be held in contempt of court for failure to comply with a court order. Your spouse is simply trying to manipulate you when he or she threatens to stop paying child support. He or she does not have the right to stop payments until there is a new court order in place to modify the support amount.
The consequences of being found in contempt vary, but a contempt charge may result in the violator being put in jail for up to six months for this violation of a court order to pay child support. In addition, the violator will be required to pay back the amount owed, and this “back child support” is commonly referred to as an arrearage.
I welcome the submission of any question concerning child support, divorce, or child custody matters. If any reader would like it to be addressed either in the blog or to the reader personally, please contact me and I would be happy to provide some information. My contact information is:
Rachel Rieger, Attorney
Tim Hatton & Associates
Phone: (615) 453-9934
E-Mail: Rachel@lawyerhatton.com
Tuesday, January 4, 2011
Introducing Brad Russell
Brad Russel just made his first post to this blog. Brad is a new associate here who is focusing on consumer, small business and entertainment law. As part of our office new year's resolutions all associates will be making frequent posts to the blog.
~Tim
~Tim
The Difference Between Sales Tax and Use Tax and How This Can Effect Your Business
In today’s market it is common for even small local businesses to conduct their business all over the country. Modern technology allows orders to be received by phone, fax, mail, e-mail, and the internet from out of state customers. However, with great opportunity for profit comes great responsibility. When dealing with out of state sales, it is important to know the basic definitions of the two types of retail tax: sales tax and use tax.
Sales Tax is imposed on retailers for the privilege of selling tangible personal property at retail. The tax is measured by the gross receipts from retail sales. The obligation to pay sales tax is on the seller.
Use tax is imposed upon the storage, use or other consumption in this state of tangible personal property purchased from a retailer. The use tax rather than the sales tax applies to purchases shipped from an out-of-state point to an in-state consumer. The obligation to pay use tax is on the purchaser. However, many customers fail to report and that has resulted in recent changes to state laws.
The states that have changed their laws to place a duty upon out of state vendors to register, report sales, and collect sales tax have generally followed a single pattern. While the burden initially remains with the customer, if a company has a nexus within the state it is required to register and report sales and collect and remit the tax.
“Nexus” is a means of connection, a link between an in-state business and another state. What constitutes a nexus depends entirely upon the state’s law defining that term. It can be as little as making one sale in the state, or as much as maintaining an office there. The only way to find out if a business has a nexus with another state is to analyze the language of the state’s nexus definition. Because each state has a different nexus definition, this analysis must be done for each state individually.
It is important to note that the laws of most states require companies to respond to requests for information to determine whether they meet that state’s nexus requirements. Failure to respond to these requests could result in a company being sued by the taxing authority or having civil penalties imposed upon them.
As more and more states respond to their budget crises by attempting to increase sales tax revenues, it is important for every business owner to keep in mind that, even though they may not consider themselves to be doing business in a state, they might in fact meet the state's requirements for withholding sales tax. If there is any question, consult your business attorney.
Brad Russell
Sales Tax is imposed on retailers for the privilege of selling tangible personal property at retail. The tax is measured by the gross receipts from retail sales. The obligation to pay sales tax is on the seller.
Use tax is imposed upon the storage, use or other consumption in this state of tangible personal property purchased from a retailer. The use tax rather than the sales tax applies to purchases shipped from an out-of-state point to an in-state consumer. The obligation to pay use tax is on the purchaser. However, many customers fail to report and that has resulted in recent changes to state laws.
The states that have changed their laws to place a duty upon out of state vendors to register, report sales, and collect sales tax have generally followed a single pattern. While the burden initially remains with the customer, if a company has a nexus within the state it is required to register and report sales and collect and remit the tax.
“Nexus” is a means of connection, a link between an in-state business and another state. What constitutes a nexus depends entirely upon the state’s law defining that term. It can be as little as making one sale in the state, or as much as maintaining an office there. The only way to find out if a business has a nexus with another state is to analyze the language of the state’s nexus definition. Because each state has a different nexus definition, this analysis must be done for each state individually.
It is important to note that the laws of most states require companies to respond to requests for information to determine whether they meet that state’s nexus requirements. Failure to respond to these requests could result in a company being sued by the taxing authority or having civil penalties imposed upon them.
As more and more states respond to their budget crises by attempting to increase sales tax revenues, it is important for every business owner to keep in mind that, even though they may not consider themselves to be doing business in a state, they might in fact meet the state's requirements for withholding sales tax. If there is any question, consult your business attorney.
Brad Russell
Thursday, October 7, 2010
Introducing Rachel Rieger
I am happy to announce that my firm is expanding. On September 13, I added a second lawyer - Rachel Rieger - who will be managing the firm's family law practice. Rachel will be handling all new divorce, child custody, support and visitation cases. She also expects to build a juvenile law practice.
To reflect that the office is no longer a solo practitioner, the firm's name has been changed to Tim Hatton & Associates.
I am very excited to have Rachel on board. We both look forward to continuing to provide quality legal services to our clients at an affordable price.
~Tim
To reflect that the office is no longer a solo practitioner, the firm's name has been changed to Tim Hatton & Associates.
I am very excited to have Rachel on board. We both look forward to continuing to provide quality legal services to our clients at an affordable price.
~Tim
Saturday, June 5, 2010
Remaining Silent
Well, the U.S. Supreme Court did it again. In the case of BERGHUIS v. THOMPKINS, they held that a person can't invoke his right against self-incrimination, the famous "right to remain silent," by, in fact, remaining silent.
In this case, a defendant was interrogated for several hours, during which time he said nothing. He literally remained silent, just as the Miranda warnings he was read told him he could. As the interrogators were leaving the room, one of them asked if he believed in god, and when he said 'yes' asked him if he would pray for god's forgiveness. It was disputed whether the suspect replied, but the interrogator testified that he said 'yes' and that was deemed to be an admission of guilt.
In addition to the nonsensical ruling on the right to remain silent, I find it offensive that police interrogators are permitted to prey on a suspect's religious beliefs in order to psychologically put the suspect in a frame of mind to confess. Such confessions are as coerced, in my opinion, as those obtained by beating the confession out of the suspect.
This one, they got wrong.
~Tim
In this case, a defendant was interrogated for several hours, during which time he said nothing. He literally remained silent, just as the Miranda warnings he was read told him he could. As the interrogators were leaving the room, one of them asked if he believed in god, and when he said 'yes' asked him if he would pray for god's forgiveness. It was disputed whether the suspect replied, but the interrogator testified that he said 'yes' and that was deemed to be an admission of guilt.
In addition to the nonsensical ruling on the right to remain silent, I find it offensive that police interrogators are permitted to prey on a suspect's religious beliefs in order to psychologically put the suspect in a frame of mind to confess. Such confessions are as coerced, in my opinion, as those obtained by beating the confession out of the suspect.
This one, they got wrong.
~Tim
Friday, June 4, 2010
Supreme Court Decisions Have Consequences
Two years ago, the U.S. Supreme Court ruled, in a case out of Georgia, that it was reasonable for a police officer to ram a motorist being chased for a traffic violation. The motorist lost control of his vehicle and was seriously injured. Since the Supreme Court held that the officer's actions were reasonable, the motorist was denied any recompense due to the doctrine of qualified immunity.
Recently, I have been observing that many police vehicles now come equipped with front bumper extensions that are apparently designed to aid the driver of the police vehicle in ramming operations. I guess that, since the Supreme Court says it's ok, they want to be able to ram with impunity without damaging their police cruiser.
Someday, some happy day, the justices of the Supreme Court will realize that there are ramifications to the decisions they make. Or perhaps we will wise up and start electing presidents and senators who will appoint justices to the Court who come from a more "common" background.
Just one lawyer's opinion.
~Tim
Recently, I have been observing that many police vehicles now come equipped with front bumper extensions that are apparently designed to aid the driver of the police vehicle in ramming operations. I guess that, since the Supreme Court says it's ok, they want to be able to ram with impunity without damaging their police cruiser.
Someday, some happy day, the justices of the Supreme Court will realize that there are ramifications to the decisions they make. Or perhaps we will wise up and start electing presidents and senators who will appoint justices to the Court who come from a more "common" background.
Just one lawyer's opinion.
~Tim
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