Property Damage by Tree Limbs and Roots

property damage by trees, property damage lawyerHave you ever wondered about property damage caused by tree limbs or roots?

First, let’s talk for a moment about your neighbor’s tree limbs.  Suppose the tree itself is on your neighbor’s property, but the limbs are hanging over your fence, casting unwanted shade or shedding leaves you don’t want to pick up.  This really bothers you. Can you trim the limbs even though the tree belongs to your neighbor and is on his property?

The quick answer is yes. But don’t ask your neighbor to pay for it. And don’t trim the limbs beyond the property line. If it’s a more serious matter, you might have a nuisance action for property damage.

Option 1: Self-Help—Trim the Branches Yourself

Under Tennessee law, you may, at your own expense, cut away intruding vegetation to the property line whether or not it constitutes a nuisance or is otherwise causing harm to your property.

Option 2: Nuisance Action—Bring Suit to Make Your Neighbor Pay Damages and Fix the Problem

In some cases, you may have a cause of action for nuisance. A nuisance lawsuit may be brought when tree branches or roots from the adjacent property encroach upon and damage your property. Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 356-57 (Tenn. 2002).

What is a Nuisance?

In Tennessee, a private nuisance is anything which disturbs the free use of your property, or which renders its ordinary use or physical occupation uncomfortable. This extends to problems that endanger life or health, give offense to the senses, violate the laws of decency, or obstruct the reasonable and comfortable use of property.

Encroaching trees and plants are not nuisances just because they cast shade, drop leaves, flowers, or fruit, or just because they intrude upon your property either above or below the ground. However, the problem may be a nuisance if it causes actual harm or poses an imminent danger of actual harm to your property.

Example of a Nuisance Case

The Lane case represents a pretty extreme case of nuisance. In that case, the trees at issue caused a hole in the plaintiff’s roof and water from that hole ruined her ceilings and stove. In addition, the plaintiff had severe plumbing problems as a result of encroaching tree roots. She was not able to use her bathroom sink or tub for two years. Nor could she flush her toilet. Even worse, raw sewage bubbled up into her bathtub and the floor had to be replaced because the toilet continually backed up. The Court stated:

Clearly, the defendant’s encroaching trees have adversely affected the plaintiff’s reasonable and ordinary use and occupation of her home, not to mention posing hazards to the plaintiff’s health and safety. Accordingly, we reject the defendant’s assertion that its trees do not constitute a nuisance.

What’s the end result of a nuisance lawsuit?

The owner of the offending tree may be held responsible for harm caused and may also be required to cut back the encroaching branches or roots if a court finds that the encroaching vegetation is a nuisance.

If you are successful in a private nuisance action, you may be entitled to several types of remedies. A court might order that the nuisance be stopped (injunctive relief). You may also be entitled to money damages for the cost of restoring your property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of your property.

Read more about tree limbs and the law in Tennessee by clicking here and reading our previous blog post titled, “Law FAQ: My Neighbor’s Tree Hangs Over the Property Line. Do I have the right to cut back the branches?” 

Need a Property Damage Lawyer?

Disputes between neighbors can be very uncomfortable. We can help, whether that means facilitating communication, fashioning an amicable resolution, or, if all else fails, filing a lawsuit. We’re here to help you find a solution that works for YOU!  Call us at 901-372-5003 or email us here if you need a property damage lawyer.

Meet the Wiseman Bray PLLC team by clicking here.

 

How to Dissolve a Tennessee LLC

dissolve tennessee llcNeed to dissolve your Tennessee LLC? The method for dissolving a business entity depends on the type of entity and its structure.  This post will focus on the termination of a Tennessee Limited Liability Company (LLC).  In addition, while LLCs can be dissolved both judicially and administratively, we will focus on dissolution by the person or persons associated with the LLC.

Disclaimer: This information is intended to be a general overview of the LLC termination process in Tennessee.  The termination process may be different depending on the LLC, its makeup, or a client’s specific circumstances. This information should not be used as a substitute for consulting an attorney about terminating your LLC.

 Statute on how to dissolve a Tennessee LLC

LLCs formed on or after January 1, 2006, are governed by the Tennessee Revised Limited Liability Company Act.  Tenn. Code Ann. 48-249-601  provides the various methods for dissolving a Tennessee LLC and provides that an LLC is dissolved upon the first of the following to occur:

  • Expiration of the period fixed in the Articles of Organization, if any:
  • The occurrence of an event specified in the LLC documents;
  • Action of the members in accordance with Tenn. Code Ann. § 48-249-603;
  • Action of the organizers under Tenn. Code Ann. § 48-249-602 if not contributions have been accepted by the LLC;
  • An order of the court under Tenn. Code Ann. § 48-249-616 or § 48-249-617, also known as judicial dissolution;
  • An action of the Secretary of State under Tenn. Code Ann. § 48-249-605; also known as administrative dissolution; or
  • If there are no LLC members and a notice of dissolution is filed within 90 days of the occurrence of the event terminating the interest of the last remaining member and the LLC documents specify that the termination of the interest of the last member dissolves the LLC.

The statute specifically provides that the “termination, dissociation, death, incapacity, withdrawal, retirement, resignation, expulsion, bankruptcy or dissolution of any member, or the occurrence of any other event that terminates the membership interest of any member, shall not cause the LLC to be dissolved.”  If any LLC is to be dissolved in any of these instances, it must be stated in the LLC documents.

What to Do Before Termination

Before terminating your entity with the Tennessee Secretary of State, the entity must file a Final Tax Return with the Tennessee Department of Revenue and obtain a Tax Clearance Letter to submit with its termination documents.

Submitting Termination Documents

If a Tennessee LLC is terminated by the organizers, Articles of Termination by the organizers must be filed with the Tennessee Secretary of State. If the LLC is terminated after a designated period, under the LLC documents, if there are no members left, or if by consent of the members, Notice of Dissolution must also be filed with the Secretary of State.    Be sure to have appropriate documentation filed with your LLC documents showing any action that was taken to effect this decision, if necessary.

What to Do After Termination

Once an entity is terminated with the State, the LLC must stop doing business and wind up its affairs.  To wind up the business, management must collect and pay all debts, sell assets, and distribute any remaining funds to the members of the LLC.

You Still Need to Consult a Business Lawyer

This information is only a general overview of the LLC termination process in Tennessee.  The process may be different depending on the LLC, its makeup or a client’s specific circumstances.  For this reason, it is important that you consult an attorney before taking steps to terminate your LLC.

If you need help terminating your LLC, we would be honored to assist you.  Please call us at 901-372-5003 or email us here.

 

Have Divorce Questions? Guest Blog by Family Law Attorney, Lucie Brackin

divorce attorney memphisWe hope you never need a divorce. But just in case you have questions about what a divorce in Tennessee involves, we’ve invited Guest Blogger and Family Law Attorney Lucie Brackin to fill you in. Lucie is a partner with The Landers Firm PLC. Here’s what Lucie has to say about getting a divorce in Tennessee:

Filing a Divorce Case

The first step is to file a Complaint for Divorce and pay the filing fee to the Court Clerk’s office.

How Long Does it Take to Get Divorced?

If you have minor children, there’s a 90 day waiting period before the Court can grant a divorce.  If you don’t have minor children, the waiting period is 60 days.

Discovery in a Divorce Case

The first formal phase of a divorce is called “discovery” because that’s what the lawyers are doing – discovering everything they need to know about the parties, the finances, the children, etc.  This usually involves answering a list of questions under oath, producing documents to the other side, and depositions.

Child Custody in Tennessee

In Tennessee, the Court will not use the word “custody” in your case.  The terms now used under Tennessee law are Primary Residential Parent and Alternate Residential Parent.  However, these titles don’t hold the significance you might think.  Regardless of who holds these titles, each parent’s specific rights to make major decisions regarding the children’s education, health, religion, and extra-curricular activities will have to be determined and specifically stated in the Permanent Parenting Plan that must be either agreed upon or ordered by the Court.

Parenting Time (or Visitation)

Courts in Tennessee do not use the term “visitation.”’  The legal term in Tennessee is “parenting time.”’  The Permanent Parenting Plan form outlines the day-to-day and holiday schedules.  This must all be completed before a Court will approve a Permanent Parenting Plan.

Child Support in Tennessee

If minor children are involved, there must be a Child Support Worksheet attached to the Permanent Parenting Plan.

In order to calculate child support, you must include:

  • number of days per year each parent has the children (which is basically the number of overnights the children spend with each parent per year),
  • each parent’s gross monthly income,
  • cost that each parent pays for the children’s insurance,
  • cost of work-related child-care.

After the “guideline support” is determined by the worksheet, there may be deviations (upward or downward) that may be allowable, such as recurring medical expenses, extra-curricular activities, or special lessons.

“Minor children” are defined as children who have not yet turned 18 years of age and graduated from high school. So, child support sometimes has to be paid after a child has turned 18 but has not yet graduated or after a child has graduated but has not yet turned 18.

College Expenses as Child Support

Courts in Tennessee cannot order parents to pay college expenses, although parents can enter into a contractual agreement to pay college expenses for their children.  It is very important to talk to a lawyer before you enter into a contract to pay college expenses for your children.

Division of Assets and Liabilities in a Divorce

The first determination that the Court will make is whether the asset or debt in question is “marital” or “separate.”  Generally, separate assets are those that one of you had before the marriage, that you inherited, or that was given to you as a gift, and which you continued to hold separately.  With the exception of some kinds of retirement funds, increases in value to those separate items will also be separate unless marital efforts have been used to cause the increase in value.  Separate assets are typically retained by their original owner and the other spouse cannot make a claim to those items.  There are, of course, special exceptions that apply to special circumstances.  Marital assets are nearly everything else, including things like closely held businesses or professional practices.

The division of marital assets occurs without considering the fault of a party (“grounds for divorce”), and the guiding principal of division is that the Court is to achieve “equity” with the division, but “equity” does not necessarily mean “equal.”

Alimony (or Spousal Support)

There is no formula to calculate alimony in Tennessee.  To calculate alimony, the Court considers many factors, the most important of which are “need” and “ability to pay.”  While there are no hard and fast rules, you can typically assume that the longer the length of the marriage and the greater the disparity in the parties’ earning capacities, the greater and longer the alimony award.  Conversely, the shorter the marriage and the closer the parties’ earning capacities are, the less likely it is that there will be a significant alimony award or any at all.

The types of alimony available in Tennessee are as follows and they are applied based upon which type best fits the facts, circumstances, and needs in your case:

  • In Futuro Alimony:  This is typically “lifetime” alimony and is reserved for very unusual cases or long-term marriages where one spouse will never be able to fully support himself or herself.  It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
  • Rehabilitative Alimony:  This is typically used in circumstances where one spouse needs support to allow him or her to get to a financial place where support is no longer needed – perhaps to complete an education or to allow a minor child to begin school.  It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
  • In Solido Alimony:  This type of alimony is also known as “lump sum alimony” and it is typically used to balance out an unequal division of property or to ensure the transfer of a certain sum of money to a spouse without creating tax consequences and without allowing modifiability.
  • Transitional Alimony:  This form of alimony is typically used in circumstances that don’t fit other types of alimony and “rehabilitation” is either not possible or not needed.  It is typically of short duration, and it may be taxable or non-taxable, and it may also be modifiable or non-modifiable, depending on what is trying to be achieved.

Resolution of a Divorce Case in Tennessee

Most divorce cases will be settled through mediation, which the Courts often order if the parties do not voluntarily attend.  If you are unable to resolve your case, your divorce will be set for trial.

Need a lawyer in Memphis?

We would be honored to help you with your legal issue. View our practice areas here.

In addition to Memphis, we also represent clients in Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Nashville, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding areas. We also work in Mississippi.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38103

(901) 372-5003

EMAIL US HERE.

divorce attorney in Memphis

Lucie Brackin, Guest Blogger

 

 

 

Wyoming Close LLCs Protect Assets

Wyoming Close LLC Asset Protection Memphis TNA popular asset protection tool we use at Wiseman Bray PLLC is the Wyoming Close Limited Liability Company.  One or more people can establish and own this type of entity and may also manage the LLC.   

Anyone can establish a Wyoming Close LLC, even if you do not live in Wyoming or conduct your business there.

Protection from Lawsuits

Under current law, assets inside a Wyoming Close LLC are protected from “outside” lawsuits and creditors, such as those resulting from a car accident or malpractice action.  In a few states, like Wyoming, the sole remedy for a creditor of an LLC member against that member’s LLC interest is a “charging order.”  A charging order only allows the creditor access to the debtor’s LLC interest to the extent distributions are made to the member.

Estate and Gift Tax Benefits

Under current law, the value of a membership interest in a Wyoming Close LLC may be subject to valuation discounts for estate and gift tax purposes. We anticipate in the future that the IRS will institute regulations limiting tax benefits.

Separation of  “Hot” and “Cool” Assets 

A “hot” asset is something like a rental property.  A “cool” asset is something like a brokerage account. Separate LLCs should be formed to keep “hot” and “cool” assets separate.  “Cool” assets should be isolated from “hot” assets because any “inside” lawsuits, such as those resulting from accidents occurring on property inside the LLC, will subject “cool” assets to claims of creditors of the “hot” assets.

Is a Wyoming Close LLC right for you?

If you have questions about whether a Wyoming Close LLC might be right for you, or if you’re curious about other forms of asset protection and business organizations, please call us at 901-372-5003 or email us here. We will examine your personal situation and work to develop the asset protection strategy that is right for you.

Larry Bray

Larry Bray

Lindsay Jones

Lindsay Jones

Carlisle Dale

Carlisle Dale

Who is the best lawyer near me?

best lawyer in memphis

By:  Lang Wiseman

You may have been hurt in an auto accident or truck accident and wondering:

  • Who is the best injury lawyer or best accident lawyer in Memphis, or Nashville?
  • Who is the best injury attorney near me?
  • Who is the best car wreck lawyer in Cordova, or Bartlett, or Germantown?
  • Who is the best car wreck attorney near me?

You may have been injured and Googled those questions, or perhaps others:

  • Who is the best personal injury attorney or wrongful death lawyer in Memphis?
  • Who is the best spinal cord injury lawyer, or brain injury lawyer near me, or in Memphis, or in Tennessee?
  • Who is the best lawyer to negotiate with an insurance company for damages for your injury?

Right question. Wrong answer.

You won’t ever hear any lawyer or attorney at Wiseman Bray PLLC claim that we are the “best” in Memphis – for a couple of different reasons. First, because there are plenty of fine lawyers and attorneys in the Memphis and Nashville, Tennessee area, including in Cordova, Bartlett, Germantown, Arlington, Millington, Collierville, and Lakeland.  We would seriously question any injury lawyer with the temerity to proclaim himself “the best.”

Second, based on Rule 7 of the Rules of Professional Conduct, the Tennessee Board of Professional Responsibility back in 2004 specifically prohibited such self-serving, subjective statements by attorneys, including statements that a lawyer is “most qualified,” “excellent,” “top,” “most experienced,” “preferred”, or an “expert” in a particular field of law, such as personal injury, auto accident, or wrongful death.  The Board’s opinion was based on provisions of Rule 7 that have since been revised, and thus it is not entirely clear whether an outright prohibition is still technically enforceable. However, most reputable lawyers still find such statements to be highly questionable, and certainly in poor taste.

So, the next time you hear an attorney refer to herself or himself as an expert, or say that he or she is the best lawyer in a Tennessee town – whether on TV or on a website or in marketing materials – you should know that that lawyer is not only humility-challenged, but also possibly in violation of the basic Rules governing attorney conduct.

The right answer?

At Wiseman Bray PLLC, you’ll only hear us talk about our experience in Memphis and Nashville, Tennessee injury claims, and about our unique and selective approach to personal injury and wrongful death claims. When it comes to injury cases, we’re not a high-volume, low-dollar settlement firm. We only take serious claims involving serious injuries or death, and we purposefully keep our caseload small so we can give our clients the attention they deserve.

You can check out our qualifications here, and you can click here to find out more about some of the actual results we’ve achieved in various types of cases, including car wrecks, truck accidents, slip and fall cases, and wrongful death claims. At the end of the day, we’ll allow our client ratings and peer reviews from such public resources as AVVO or Findlaw do the talking for us. Click on those links to see what others have to say about us.

Search our blog or  website for more helpful resources and information, and please call or email about a free consultation. We’ll respond in less than 24 hours to let you know whether we can help. Here’s our contact information.