Construction Contract? Confirm Your Contractor is Properly Licensed First!

construction contract lawyer I spent a good amount of time one week working with a client to cancel his construction contract after learning that the contractor was not properly licensed to build his new house. What started out as an exciting time in this client’s life turned out to be a big mess.  I was eventually able to work out a solution with the unlicensed contractor, but not before he had hired legal counsel of his own.

In Tennessee, residential and commercial construction contractors are regulated by the Tennessee Board for Licensing Contractors.  Per the Board,

A contractor’s license is required prior to contracting (bidding or negotiating a price) whenever the total cost of the project is $25,000 or more.

For residential construction, licensed contractors may contract to build houses so long as the total cost of the project does not exceed the monetary limit established by the Board.  A contractor may apply to have his limit increased after submitting documents showing financial stability.

Frequently however, home builders enter into contracts with customers for projects that exceed their monetary limits.  Many problems can come into play when this happens.  Contractors jeopardize their licenses and expose themselves to fines from the Board. Contractors open themselves up to not being able to collect under the terms of the construction contract, even if everything goes well.  Customers run the risk of the project being shut down and having to incur additional expenses. Customers may even have to hire a replacement contractor.

Before Your Enter Into a Construction Contract. . .

Check to see if your contractor is properly licensed!  Construction litigation  can be lengthy, complex, and expensive. Many problems can be avoided if customers do a little quick research to confirm that the contractor they want to use is fully and properly licensed.  You can do that by clicking here.

If you need a construction or contract lawyer, call me at (901) 372-5003 or email me here. 

By: Chris Patterson

Construction Contract Lawyer Chris Patterson

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

 

 

Put Up or Shut Up is Back

WB LogoIn what is generally viewed as a win for defendants in lawsuits, the Tennessee Supreme Court recently reverted to a more lenient summary judgment standard used by courts in Tennessee prior to 2008.  

A summary judgment motion is a procedural tool where a party (typically a defendant) can ask the court to “short circuit” a lawsuit by asking the court to dismiss the suit because there’s no dispute over any material fact, and the case can be resolved on legal grounds.  In federal court, and in Tennessee state court prior to 2008, a defendant could prevail on a motion for summary judgment by simply pointing out that a plaintiff had insufficient evidence to support his claims, even if the court were to assume that all of that evidence was viewed in the light most favorable to the plaintiff.  In order to survive the motion and keep the lawsuit alive, the plaintiff would have to come forward and identify relevant evidence showing that an actual trial was, in fact, necessary.  This summary judgment standard is often referred to as the “put up or shut up” standard since it required a party basically to go ahead and show his cards if he wanted to avoid a dismissal.

In its 2008 opinion in Hannan v. Alltel Publishing Co., the Supreme Court drastically altered the summary standard to make it harder for a party to get a case dismissed prior to expending considerable time and expense on discovery.  Rather than being able to argue that the plaintiff should “put up or shut up” during the pre-trial stage, the Supreme Court held that a defendant would instead have to affirmatively disprove the plaintiff’s claims in order to avoid a trial, and/or otherwise show that the plaintiff would not be able to prove his claims at the trial. 

A few weeks ago, in Rye v. Women’s Care Center of Memphis, the Tennessee Supreme Court essentially reversed itself, overruling Hannan, and stating that Tennessee courts would again apply the “put up or shut up” standard.  The Court explained that in retrospect, it believed it had misapplied the law in Hannan, and further that the tougher summary judgment standard adopted in Hannan had proved to be unwise and unworkable in practice.

By reverting to the pre-Hannan “put up or shut up” standard, the Supreme Court made it much more likely that certain cases will be resolved on legal grounds without the need for a trial.

“Neighbors said the complex’s security gate hasn’t worked in quite some time.”

WB LogoIt keeps happening.  Almost every day brings another incident of violent crime in Memphis area apartments.  Apartment residents in Memphis have a right to demand that property managers and owners take reasonable steps to prevent foreseeable crimes on their premises.

Over the last few years, our litigation attorneys are spending an increasing amount of our time representing crime victims when property owners fail to take these reasonable precautions.  While not every crime is preventable, and not every crime is the result of a failure of property owners, frequently, bottom line profit is placed before safety of residents.

Erin Shea Elected as Fellow by the Memphis Bar Foundation

erin shea

Wiseman Bray PLLC is proud to announce that Erin Shea was recently elected a Fellow by the Memphis Bar Foundation, following in the footsteps of firm founder, Lang Wiseman.

The Memphis Bar Foundation is the philanthropic arm of the Memphis Bar Association with the mission of promoting philanthropy among members of the Bar; advocating and supporting public awareness of the legal system; promoting social justice and legal education; and encouraging and recognizing professionalism among members of the Bar. Fellows are elected in recognition of devoted and distinguished service to the legal profession and the administration of justice and adherence to the highest standards of professional ethics and personal conduct.

More About Erin Shea

Erin is married to Martin F. Shea, Jr., and has two children, Elin (4) and Martin, III (19 months). Read more about Erin by clicking here.

Local Goverment Alert: TN Supreme Court acknowledges expansive rights of governing boards to sue & be sued

local governmentTwo recent opinions give real insight into the Tennessee Supreme Court’s thinking about the ability of the components of local government to sue each other.

In the first case, the Court confirmed Metro Nashville’s ability to sue its own Board of Zoning Appeals.  In the second case, the Court confirmed the Coffee County School Board’s right to sue two cities over funding issues.

These opinions are especially timely considering the battle brewing in Memphis about whether or not a County Commission can retain its own counsel, separate and apart from the county attorney.

State of TN holding $725M in unclaimed property – click to see if any belongs to you

OLYMPUS DIGITAL CAMERA

 

Ever wonder what happens to money or property that gets “lost in the shuffle” so to speak?

 

  • an old utility or lease deposit you forgot to follow up on before you moved
  • the last interest payment due in an old savings account you closed
  • a final paycheck at an old job
  • an old safety deposit box your grandmother never told anyone about

 

This is referred to as “unclaimed property,” and by law the holder of the property (i.e. the bank, the landlord, utility, company, etc.) must turn it over to the State along with information about the name and last known address of the owner. They CANNOT keep the property; however, they are not required to track down the owner, either. They can simply turn it over to the State and be done with it.

 

Literally MILLIONS of dollars in unclaimed funds are turned over to the State of Tennessee each year.  Over $40 million was turned in just last year alone.

 

But here’s the good news — the State maintains a website where you can do a simple name search and then claim your property at no cost. Click HERE to perform a search (https://www.claimittn.gov/). You can search for yourself, your parents, your kids, your friends, etc., and then your (or they) can submit a claim form with identifying information as needed and the State will turn the property over to you.

 

As noted above, it is QUITE common for people to forget about small deposits here and there. I once learned about an old utility deposit from back when I was in college and got my refund! It wasn’t much, but it was free money!

 

Use the Comment section below and share any success stories you have finding old/lost property or funds.

 

[TIP: Be sure to also search in other states where you may have lived, transacted business, or maintained accounts. Just type in Google the words “unclaimed property” and the state you want to search.]

 

Click the “Share” or “Retweet” buttons below to let your friends know about this post.

Apartment Complex Crime -Negligent Security-Memphis

crime victim lawyers, apartment complex crime attorney
Memphis has more than its share of violence. Apartment complex crime in Memphis is serious. Recently, another man lost his life after being gunned down as he was walking back into his apartment at the Prescott Place Apartments located in the 1700 block of Morlye Street. Not all crime is preventable, but many times property managers and apartment complexes do not have adequate security to deter and prevent crime.

We have significant experience in handling apartment crime and negligent security cases. Investigating and prosecuting these claims can be complex. We often learn that  large out-of-town companies own and operate apartments in high-crime neighborhoods, and do little to protect their residents and visitors. Why do these companies ignore the crime? It’s simple: spending money on security measures cuts into the bottom line.

An apartment complex presents unique security issues that don’t exist in single-family neighborhoods. The layout of the premises often makes it challenging for local police to monitor and patrol the area. Because of this, it is even more important for apartment companies and property managers to be intentional about the security on their property.

Unfortunately, many times security measures such as increased lighting, properly maintained landscaping, and security guard patrols are ignored and residents are left to fend for themselves. When this happens, you can be sure that criminals learn which properties are prime targets. Indeed, in one case we worked on, three criminals actually rode their bikes past several other commercial and residential areas to specifically find a victim at the defendant apartment complex because they knew it was dark and no security guards worked at night. The failure of the apartment complex and property management to implement and maintain reasonable security measures resulted in the complex having a reputation for being a good place to commit crime without getting caught, and our client suffered a catastrophic gunshot wound because of it.

We represent victims of apartment complex crime.

If you or someone you know has been the victim of apartment complex crime in Memphis or if you have been a crime victim on a commercial property and you think that the security measures may not have been reasonable, please feel free to call our firm to see if we can help. We are attorneys for crime victims. Call us at 901-372-5003.

 

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003

 

Using The Tennessee Investment Services Trust Act To Create A Self-Settled Asset Protection Trust

The “Tennessee Investment Services Act of 2007,” (the “Act”) allows a person to create a self-settled asset protection trust. Tennessee is still one of only a handful of states to enact legislation permitting the creation of a self-settled, or self-created, asset protection trust.

Before the Act was passed in Tennessee, an individual could not protect his or her wealth from creditors and lawsuits while also retaining some control of his or her assets.   The Act allows an individual to create his or her own trust and maintain a certain level of control over the trust, while also protecting his or her assets from creditors and lawsuits.

One of the biggest perks of the Act is the trustmaker’s ability to retain a certain level of control over the trust. The trustmaker may retain the following rights, which include, but are not limited to, the rights to:

  • direct the investment of the assets;
  • receive distributions of principal at the discretion of the trustee;
  • live in a home owned by the trust;
  • veto distributions to any other permissible beneficiaries;
  • direct the distribution of the trust assets upon death to any one or more persons;
  • remove the trustee and other trust advisors and appoint their successors under certain provisions

 

In order to meet the statutory requirements, the trust must be carefully drafted and administered. For example, the trust must be irrevocable, meaning that the terms of the trust cannot be modified. Additionally, Tennessee law must govern the trust, and at least a portion of the assets of the trust must be administered in Tennessee. The person creating the trust cannot serve as Trustee, and the trustee of the trust must either be a resident of Tennessee or a corporate fiduciary authorized to conduct business in Tennessee. The trustmaker must also sign an affidavit that states, among other things, that the transferor of the assets to the trust is solvent and does not intend to defraud his or her creditors.

The Act implements a two year “look back” rule. This means that, after two years have passed since the assets were transferred to the trust, the trustmaker’s creditors cannot seize the assets of the trust to satisfy claims against the trustmaker.

It is important to note that the Act does NOT apply to certain creditors, claims or judgments, including those for past due child support, past due alimony or support of a spouse of former spouse or agreements setting forth division of marital property.

In summary, the Tennessee Investment Services Act of 2007 provides an asset protection opportunity for individuals who are concerned about the loss of their assets due to unforeseen creditors. The trust presents a unique solution to those who wish to protect their assets during their lifetime while still retaining the ability to manage those assets and benefit from them.