Wiseman Bray Wins on Motion to Dismiss

motion to dismiss

Wiseman Bray PLLC is happy to announce a victory in a business litigation case. Our strategy? A Rule 12 Motion to Dismiss. Our client, a former officer and employee of a factoring corporation, was wrongfully sued in his individual capacity by a former customer of his employer. Our client served as Chief Financial Officer, and had merely signed agreements on behalf of the company. The Plaintiff alleged that our client’s employer had misapplied payments and committed other improper acts in connection with their Factoring and Buyout Agreements.

Our Strategy

The Complaint contained numerous allegations against the factoring corporation, but its only mention of our client was that he was an officer of the company, and that, as an officer he was somehow responsible for implementing the policies and procedures that damaged Plaintiff.

After our firm was hired to represent the former officer, we carefully analyzed the Complaint filed against him in Federal Court. In our judgment, the claims in the lawsuit were neither valid nor properly stated, so we filed a Motion to Dismiss for Failure to State a Claim. See Federal Rule of Civil Procedure 12.

What is a Motion to Dismiss for Failure to State a Claim?

A motion to dismiss for failure to state a claim is filed at the very beginning of a case which argues, essentially, that a plaintiff’s claim is either not legally correct, or that insufficient facts have been alleged to suppose an otherwise valid legal claim.

When such a motion is filed, the judge must assume that all the allegations of the plaintiff’s complaint are true, resolving any and all doubts in favor of the plaintiff. For obvious reasons, then, such motions are usually very difficult to win. The corresponding benefit is equally obvious, though, because dismissal at this early stage allows the client to avoid most of the costs of litigation.

The Court’s Ruling in Our Case

The Federal District Court judge agreed with our argument and granted the Motion to Dismiss filed on behalf of our client. In dismissing the breach of contract claim, the Federal District Court Judge said:

A corporate officer cannot be held liable for a corporation’s debts merely because he exercises dominion or control over the organization. Schlater v. Haynie, 833 S.W.2d 919, 924 (Tenn. Ct. App. 1991). Likewise, a corporate officer signing a contract on behalf of corporation does not bind himself to the contract. Bill Walker & Associates, Inc. v. Parrish, 770 S.W.2d 764, 770 (Tenn. Ct. App. 1989). Instead, a court will only hold an officer liable on a contract if it appears that the officer signed the contract in his personal capacity.

Here, Plaintiff has alleged no facts showing that [the former officer] was a party to the Factoring Agreement in his personal capacity. The Factoring Agreement’s signature page clearly shows that [his] signature was in his capacity as CFO. (ECF No. 1-1 at 3.) Additionally, he is not even a signatory to the Buyout Agreement. Plaintiff’s Complaint instead apparently attempts to hold [the former officer] liable because he exercised control over [the corporation’s] actions.  However, Tennessee law does not allow this. See Schlater 833 S.W.2d at 924. Therefore, its breach of contract claim against [the former officer] fails.

In dismissing the Plaintiff’s additional claims of conversion and fraud, the Judge went on to say:

A director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character; he is not liable for torts committed by or for the corporation unless he has participated in the wrong.’” Cooper v. Cordova Sand & Gravel Co., Inc., 485 S.W.2d 261, 271–72 (Tenn. Ct. App. 1971).

Here, the only allegation against [the former officer] himself is that he “was responsible for implementing the policies and procedures that damaged Plaintiff,” or, in other words, acted as an officer of the corporation. Because Plaintiff’s Complaint lacks any reference to any tortious conduct on the part of [the former officer], it fails to state a claim against him for both conversion and fraudulent inducement.

This case was handled by Civil Litigation Attorneys Chris Patterson and Erin Shea.

Need a Business Litigation Attorney?

Call us at 901-372-5003 or visit our website to learn more about our services as business litigation attorneys.

We handle other kinds of cases as well, including: personal injury, apartment crime injuries, auto accidents, premises liability, wrongful death, contract drafting and review, general civil litigation, estate planning, wills, trusts, probate, business planning, and business entity formation.

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Erin Shea

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Chris Patterson

 

 

 

 

 

 

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

Top 8 Things to Know About Tennessee Residential Property Disclosure Law

property disclosure lawyer in memphis tennesseeIf you are thinking of buying or selling a home, you may have questions about the basics on Tennessee property disclosure law. The Tennessee Residential Property Disclosure Act, Tenn. Code Ann. 66-5-201, et. seq., requires the Seller of a home to provide the Buyer with a Property Disclosure Statement.  Despite this law, there is still a large amount of civil litigation arising from defects discovered in a home after the Buyer has moved in. Be aware of these top things to know about Tennessee real estate property disclosure law:

Tennessee Property Disclosure Law

  1. Sellers are required to disclose the condition of the home, including any “material defects.” What does “material” mean? Generally, any fact or condition that might affect a Buyer’s decision to purchase the home.
  2. Sellers are only required to disclose based on the information they have.  Sellers are not required to have a home inspection, hire experts, or conduct an independent investigation to discover everything that might be wrong with their home.
  3. The Disclosure Statement is not a warranty. The disclosure form is not a substitute for a thorough home inspection.  If you are the Buyer, you shouldn’t just rely on the disclosure form. Hire your own home inspector.
  4. Some sellers are exempt from making disclosures. Common exceptions include sales or transfers between co-owners, new construction, purchases from lenders after foreclosure, auction sales, or if the Seller has not lived in the home within the 3 years before the Closing.
  5. Sellers are NOT Required to Repair Items listed in the Disclosure.  If you are the Buyer, be aware that Sellers don’t have to fix anything listed as broken or defective. If you want an item repaired, you must contract for it. In other words, both Buyer and Seller must agree in the final contract that an item will be repaired by the Seller before closing.
  6. Sellers ARE required to update their disclosures before closing. Sellers must update to address any material changes that have taken place since the original date of disclosure, or to confirm to the buyer that the original form is still accurate. Tenn. Code. Ann. 66-5-205.  If you are the Buyer, you should not close on a home without seeing an updated Disclosure Form signed and dated by the Seller.
  7. Representations in the Disclosure Form are those of the Seller only, and not the Real Estate Agents.  The Disclosure Act applies only to Sellers.  An agent can’t be sued under the Disclosure Act for information contained in a Seller’s disclosure form unless the agent is a signatory. Tenn. Code. Ann. 66-5-202; 66-5-208. However, real estate agents have certain disclosure duties pursuant to the Tennessee Real Estate Broker License Act of 1973.   Under the Real Estate Broker License Act, a real estate agent is required to “[d]isclose to each party to the transaction any “adverse facts” of which the licensee has actual notice or knowledge.”  Tenn. Code Ann. § 62-13-403.  What are adverse facts? Both Acts define adverse facts as conditions or occurrences generally recognized by competent agents that significantly reduce the structural integrity of improvements to real property or present a significant health risk to occupants of the property. Tenn. Code Ann. § 62–13–102(2); § 66–5–206. However, the definition of adverse facts found in the Real Estate Broker License Act also contains a third prong, for conditions or occurrences that “have negative impact on the value of the real estate.” Tenn. Code Ann. §62-13-102(2). See Ledbetter v. Schacht, 395 S.W.3d 130, 136 (Tenn. Ct. App. 2012).
  8. Any lawsuit against a Seller for a misrepresentation in a Disclosure Statement must be filed within one (1) year.  Any cause of action based directly on the disclosure law statutes will be lost if not filed within one (1) year from the date the buyer received the disclosure statement or the date of closing, or occupancy, whichever occurs first. Tenn. Code Ann. § 66-5-208.

Discovered a problem after closing?

If there is “trouble in paradise” with your new home and you think the Seller or a Real Estate Agent made a misrepresentation concerning the home, speak with an attorney as soon as possible.

While a lawsuit is not always necessary to resolve a legal issue, remember there are deadlines within which to file a lawsuit, if necessary.  An experienced litigation attorney can advise you of your options based on the particular facts of your situation.

Want to speak with an Attorney?

The attorneys at Wiseman Bray PLLC are experienced litigation and contract lawyers. We understand real estate transactions and sales, and we know the disclosure laws applying to both home sellers and real estate agents and brokers.  Call us today at (901) 372-5003.

Additional RESOURCES:

Read more about Lawsuit Deadlines: How Long Do I have to File a Lawsuit in Tennessee?

Can an Electronic Signature Form a Contract in Tennessee?

electronic signature contract attorneyDid you know that in most cases courts will recognize an electronic signature, and enforce contracts “signed” and created by e-mail exchange?

Oral vs. Written Contracts – Intro

Contrary to popular belief, a contract doesn’t always have to be in writing to be enforceable. Indeed, as explained in one of our prior blog posts,  a court will enforce an oral agreement except in cases involving certain types of contracts that are required to be in writing and signed by the parties.

Of course, even though an oral contract might technically be enforceable, there are plenty of reasons to get an agreement writing.  Written contracts cut down on “he said, she said” disputes over exactly what was verbally agreed to.  Written contracts are also obviously preferable for any agreement that involves even a hint of complexity.  And, as noted above, in some instances a written contract with signatures in actually required pursuant to the Statute of Frauds.

So, then, how is a written contract actually formed and then signed?  Is there some formal scroll paper or signing ceremony where all the parties get together and take turns using the same quill pen and ink?

Hardly.

Forming a written contract can be as simple as exchanging an e-mail with typed written names at the bottom in a signature block.

Uniform Electronic Transactions Act

In 2001, Tennessee adopted the Uniform Electronic Transactions Act (UETA) to facilitate and govern transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct. Tenn. Code Ann. 47-10-105 (a)-(b).

Under Section § 47-10-107  of the Act,

(a)  A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

(b)  A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

(c)  If a law requires a record to be in writing, an electronic record satisfies the law.

(d)  If a law requires a signature, an electronic signature satisfies the law.

What is an Electronic Signature?

So what constitutes an electronic signature?  Pursuant to the UETA, an “electronic signature” is  “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” Tenn. Code Ann. § 47–10–102(8).  This can be accomplished simply by typing your name to the end of an email.  Here’s an example:

  • John Doe sends the following e-mail: “I hereby offer to buy 100 widgets for $1,000, delivery next Tuesday. Sincerely, John Doe”

  • Jane Brown responds as follows: “I accept your offer to purchase 100 widgets for $1,000, delivery next Tuesday. Best, Jane Brown”

This transaction is binding despite the fact there is no pen and ink “writing” or “signature.”

Does an Attorney’s Signature Qualify?

Yes. The signature of a party’s attorney is sufficient to meet the requirement of an electronic signature that binds the client. On this issue, the Tennessee Supreme Court in Waddle v. Elrod, 367 S.W.3d 217 (Tenn. 2012) explained as follows:

[A]lthough [the party] did not sign the email, there is no dispute that [her attorney] was acting as her agent when he negotiated the settlement. Had he written his signature on a printed version of the email, rather than typed his name at the end of the email, his signature would undoubtedly have been sufficient to satisfy the Statute of Frauds. The UETA, recognizing that all sorts of transactions are now routinely conducted by electronic means on a daily basis, obviates the need for a handwritten signature. [The attorney’s] typed name at the end of the email constitutes an “electronic signature.” Tenn. Code Ann. § 47–10–107(d). As the agent of [the party], [the attorney’s] electronic signature on the email confirming the terms of the settlement agreement satisfies the signature requirement of the Statute of Frauds.

Be Careful

Take great care when you conduct negotiations via e-mail, and you have your e-mail set up to include an automatic signature block.  If you don’t intend for your e-mail to constitute a formal offer or acceptance of an agreement, be clear about it so you don’t wind up facing an argument that you formally entered into an agreement when you never intended to.

Bottom Line

In most cases, handwritten ink signatures aren’t required and you do not have to have an original signature for a contract to be effective.

Need a Contract Lawyer?

We are contract lawyers. If you need help enforcing an agreement or contract, or if someone is wrongfully alleging that you entered into a contract, please contact us at 901-372-5003. Each case is unique and we can advise you based on your individual circumstances.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

Deadly shooting at Madison Cypress Lakes apartment complex

shooting at madison cypress lakes, crime victim attorneyUPDATED on 08/08/2016:  Police have now identified the victim as Monique Brown, who is the mother of a young child.

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A deadly shooting at Madison Cypress Lakes apartment complex in Memphis, Tennessee.

According to news reports, a young woman was shot and killed in a shooting at the Madison at Cypress Lakes apartment complex.  What makes this shooting especially tragic is that this is hardly the first time the Madison apartment complex has been the scene of senseless violence.  According to News Channel 5, it’s the third incident just this year in which their news crew has reported on a serious criminal incident at the complex.

 History of Crime at the Apartment Complex

Another story reports that “[t]he complex has a history of violent crimes.”  The story also reports that:

In June 2013, a pizza delivery driver was shot during an armed robbery at the complex. In March 2014, one person was shot during another armed robbery. Two months later, in May 2014, a man was stabbed several times by two men during an attempted robbery. Earlier this year, a woman was sexually assaulted by a man who broke into her apartment.

We know the law on Apartment Crime.

Just 8 months ago, our law firm concluded a lawsuit involving yet another shooting at Madison Cypress Lakes in Memphis, involving the senseless robbery and shooting of a pizza delivery driver.  That lawsuit involved allegations of a shockingly low level of security given the Madison’s size, location, and finances.

Unfortunately, though, as confirmed by these local news reports, it appears that residents and visitors of the Madison at Cypress Lakes continue to be victimized by crime.

Obviously, not all crime is preventable.  And not all crime that occurs at an apartment complex is the fault of the property owner.  But all too frequently we find that large, out of town, corporate owners put profit over people, and they fail to implement reasonable security measures that could prevent innocent people from becoming victims of violent crime.

We represent crime victims and their families.

If you or someone you know has been seriously injured or killed at an apartment complex or other commercial property in or around Memphis or Nashville, call Wiseman Bray PLLC for help at 901-333-8101.

Visit our page on Apartment Crime.  Sign up for our blog posts here.

 

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com

 

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We assist crime victims in the greater Memphis and Nashville areas. Cities covered include: Memphis, Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhills, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding towns and cities.

How to Talk to Your Insurance Company After an Accident

insurance company after car accidentAfter a car accident, you may feel it necessary to contact your auto insurance company or carrier and let them know what has happened immediately. While informing your carrier of an accident is an important step in getting the compensation you deserve, there are a few things you should know before you pick up the phone.

Don’t Always Expect the Insurance Company to be on Your Side

As nice as it is to believe that an insurance company is on your side, this might not always be the case. Insurance agencies are running a business, meaning their main concern will almost always be their bottom dollar. Even though you may have paid your monthly premiums, and followed up on your end of the bargain, the insurance company will likely still not be looking after your best interests. That’s why you may want to consider enlisting the help of a personal injury attorney. Their main objective is to help you get the compensation you deserve. In fact, most DC personal injury lawyers won’t see any payment until you do.

Speaking with Your Insurance Company

After an accident, you may want to follow these steps:

  • Call the police
  • Take care of injuries
  • Exchange information with the other driver
  • Document the accident
  • Report the accident to your insurance company

When you contact the insurance company, you will likely need the following information:

  • Policy information
  • Identity Verification
  • Facts about the accident
  • What property was damaged
  • If there were any injuries
  • Police report and its identification number

At this point, insurance companies will likely try and find ways to reject your accident claims or find a way to pay the least amount of money on a claim. Remember, you only have to provide the basic information at this time. Stick to the facts and avoid adding any personal opinions, or conjecture about liability; an insurance company will likely try to spin any non-factual evidence you provide to avoid paying your claim. This is also not a time to accept any offers from the insurance company for a payout. If you already have an attorney, provide the attorney’s contact information to the representative. If you don’t have an attorney, let the representative know you will be getting one. Retaining an attorney shows the insurance company that you are serious and that they cannot take advantage of you.

If you’ve been injured in an accident and are in the process of dealing with your insurance company to get the compensation you deserve, it may be in your best interest to seek the help of an experienced personal injury lawyer.

0 COHEN

 

Thanks to our friends and co-contributors from Cohen & Cohen, P.C. for their added insight into communicating with your insurance agency.

 

Need a Memphis Personal Injury Lawyer?

Call us at (901) 372-5003.  Our experienced Memphis injury lawyers can help you make the most of your insurance claim. Sign up for email notifications of blog posts here.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com

Injuries to Trespassing Children

injuries trespassing children, personal injury lawyerIn most states, there are special rules addressing injuries to trespassing children.  In Tennessee, for example, there is the “attractive nuisance doctrine,” recently codified in Tenn. Code. Ann. 29-34-208.

Attractive Nuisance Doctrine

In summary, that doctrine holds that a land owner or possessor is liable for injuries to children who trespass if all of the following elements are present:

(1) The owner maintained a dangerous condition that was not a natural condition and knew or should have known that the condition posed a risk of death or serious bodily harm to trespassing kids;

(2) The owner knew or should have known children were likely to trespass onto the property, either because they would be lured there by the dangerous condition or because children regularly play on the property;

(3) The dangerous condition was not apparent, or children, because of their youth, would be unlikely to discover and comprehend the risk;

(4) The usefulness to the owner of maintaining the dangerous condition and the burden of eliminating the danger were significantly outweighed by the risk of harm to kids who would foreseeably trespass onto the property; and

(5) The owner failed to use reasonable care to eliminate the danger or otherwise protect the children.

This statute does not create or increase liability or affect any immunity from or defense to liability established by other statutes or common law to which a landowner may be entitled.

Even Trespassing Children are Protected by the Law

If your child was injured on someone else’s property by a dangerous condition, you should speak with a personal injury lawyer. Cases like this are very fact-dependent and are handled and settled on a case-by-case basis. Depending on the circumstances, you may be able to recover compensation to help you pay for your child’s medical bills and other damages, even if your child was trespassing.

We represent injured children and their families.

The attorneys at Wiseman Bray PLLC not only know how to deal effectively and efficiently with insurance companies, but we are also experienced trial lawyers.  We’d be honored to represent you and your family if your child has been injured. Please call us today for a free consultation at 901-372-5003. Or, if you aren’t a fan of the telephone, please feel free to email our team of injury lawyers.

We serve clients throughout Tennessee and Mississippi, including Bartlett, Cordova, Lakeland, Germantown, Collierville, Munford, Covington, Arlington, Nashville, Brentwood, and the surrounding counties and rural areas.  Sign up to receive our blog posts via email.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com

Digital Assets: Who can access my online accounts if I die?

digital assets estate planning lawyerChances are, if you are reading this Blog Post, you own Digital Assets and have one or more online accounts.  As Estate Planning Lawyers, we continue to see changes in the law to address our increasingly tech-savvy culture. The use of electronic information has continued to play a larger role in the Estate Planning and Administration we do for our clients.

Have you ever thought about what might happen to your Facebook account if you died?  Who would get your iTunes library and how would they access it?

Tennessee Legislature Passes Revised Uniform Fiduciary Access to Digital Assets Act

The Tennessee legislature recently passed the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”), which became effective July 1, 2016. The intent of the Act is to aid in a Fiduciary’s ability to access an individual’s Digital Assets.  A Fiduciary is someone either appointed by a person or a Probate Court Court to act on behalf of the person in the event of incapacity or death.  A fiduciary may be appointed by a person in a Power of Attorney or Last Will and Testament, or by a Court in a guardianship, conservatorship, or intestate estate proceeding.  The Act also attempts to protect a person’s privacy, as it also allows the person to restrict a fiduciary’s access to digital assets, and provides additional safeguards by allowing the Custodian of the asset to request certain documentation before providing requested information. A fiduciary granted access to digital assets is held to a fiduciary standard under the Act, requiring the fiduciary to act in the best interests of the person with a duty of care, loyalty and confidentiality.

What are Digital Assets?

The Act defines Digital Assets as “an electronic record in which an individual has a right or interest,” and this “does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”  The Act does not necessarily grant the fiduciary access to a person’s cell phone, computer, tablet, etc., but this class of assets includes a wide variety of items, including:

  • assets from Twitter and Facebook accounts
  • assets such as PayPal accounts
  • iTunes accounts
  • Accumulated frequent flyer miles
  • Online banking or trading accounts.

How is Access Granted?

The Act lays out specific requirements as to how the fiduciary must go about requesting access to the digital assets depending on the nature of the fiduciary representation, the type of document (if any) granting the fiduciary the authority to access digital assets, and the depth of the information needed by the fiduciary.

What Should I do about my digital assets and online accounts?

Granting a fiduciary the authority to access your digital assets (or limiting their access) should be done with specificity.   You can and should address these issues in your Last Will and Testament and Power of Attorney.  You should also make sure that any usernames, passwords, and account numbers for your digital assets and online accounts are in a safe place so that your fiduciary can get this information and provide it if requested by a custodian (such as the bank, Facebook, etc.).

If you are concerned about your appointed fiduciary’s current potential access to your digital assets, you should consult with an attorney experienced in fiduciary matters, who can review the relevant documents and properly advise you about your specific situation.

What if I need access to someone else’s online accounts?

If you are currently in a fiduciary position and you need to obtain access to that person’s digital assets or records or online accounts, please be sure to consult with an estate planning attorney to find out how you should go about obtaining this information/access, because the procedures can differ based on your fiduciary role, the powers you have been granted, and the type of information you are trying to obtain.

Let us help you

Our Estate Planning Attorneys can help develop a digital assets plan to best suit your individual needs.  Visit our website to learn more about our work and call us today at 901-372-5003.

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

Other Resources:

Estate Planning 101: Power of Attorney and Living Will

Joint Property Ownership Pitfalls and Solutions

joint property ownershipOur law firm has worked on a couple of cases lately involving joint property ownership; that is, property owned by a group of several individuals. Owning a piece of land or real estate with a group of individuals or family members can lead to many problems, a few of which we will discuss here.

What Happens to Real Estate When a Person Dies?

In Tennessee, real property typically passes outside of Probate in accordance with the publicly recorded property documents in the County where the property is located.  A person can also plan for the disposition of real property in a Will or Trust.  If you die owning real property in your sole name, though, it can cause significant problems for your Beneficiaries that can be avoided by proper planning.

In both cases I mentioned above, the group of individuals came into joint property ownership because of intestate succession (i.e., dying without a Will).  You may think that you do not need a Will because your property will pass to your heirs regardless.  However, there are many problems and burdens that your heirs will face if property passes to them through intestate succession.  Here’s what can happen if a landowner dies without a Will:

  • Land may pass to heirs who do not wish to be landowners.
  • Land may pass to heirs who do not know that they are now landowners (i.e. lost heirs).
  • Land may pass to heirs who are not prepared for the responsibility of owning real estate (i.e. paying real estate taxes, maintaining insurance, upkeep of the property)
  • If there is a mortgage, payments may be required very soon after the death of the original owner and before any inherited owner has a chance to determine how to address the new ownership – i.e. sell the property, allow it to be foreclosed upon, etc.
  • The title to the property will be unclear and extra effort will be required to determine all legal owners in a joint property ownership situation. It can be very difficult to locate heirs and to determine with certainty who all owns a piece of property, especially if some of the original heirs have died, or if the family isn’t in close contact or is spread across the country. A title search may be required, and title searches can be expensive.

Increased Costs for Inherited Owners

When a piece of property passes through intestate succession, when ownership is unclear, or when a piece of property is owned by a large group of individuals, there will be extra expense involved when the property is sold. As a general matter, the entire sales process will take longer than usual. Each separate legal owner must be found and consulted with.  Then, each owner must agree to all parts of the sale process (i.e. negotiating the price, negotiating and completing repairs, and signing all required paperwork).  It can be very difficult getting a group of family members or individuals to all cooperate and agree during the course of a real estate transaction.

Inherited owners who want to sell property can expect to have to do some additional work with the buyer’s title company such as filing probate documents, getting releases from TennCare, and dealing with potential creditors of the deceased person.  A title company may require proceeds to be escrowed for up to a year after the deceased person’s death.

Legal Issues of One Owner Can Affect Other Owners

Inherited and multiple owners can also come with their own personal problems.  A judgment lien or a bankruptcy filing of one inherited owner will immediately attach to the inherited property, which could cause delays and problems for any co-owners wishing to sell the property.

Ways to Avoid Common Problems of Joint Property Ownership

If you must own property with a group of individuals or family members, or if you desire to pass property to a group of people, there are ways you can accomplish joint property ownership which lessen the burden and expense involved. Speak with an Estate Planning Attorney or Property Lawyer about the best way to achieve your personal goals. For example, more effective “joint ownership” can be achieved in the following ways:

  1. Own as Joint Tenants with Rights of Survivorship. This type of ownership is common with married couples, but it can also be used with any individuals wishing to create this type of joint tenancy.  Upon the death of one joint tenant, the remaining tenant owns the property outright.  This results in protection from a debtor-tenant’s creditors because liens can only attach to the right of the debtor-tenant, which is nothing more than a “potential survivorship right.”  This protection ends if the non-debtor tenant dies and the debtor- tenant then owns the property outright.  One negative of this type of ownership is that the property will only pass to the other joint tenant, so the Estate of the first to die loses any equity to pass on to other individuals.  In addition, potential gift tax issues may arise since the Grantor is “gifting” rights to the property to the person they are creating a joint tenancy with.
  2. Own the Property in a Limited Liability Corporation.  Ask a business organization attorney about property ownership through an LLC. The rights of the members will depend on the structure of the LLC. Creating an LLC requires maintenance of paperwork to the State to keep the LLC active which will be required if the LLC wants to sell the property.
  3. Put the Property Into a Living Trust.  This is achieved by conveying the property to a Trustee on behalf of a Trust. (A Trust itself can’t own property; rather it must be an individual Trustee on behalf of the Trust.)  The property will then be maintained and distributed in accordance with the Trust Agreement.  A Living Trust allows the Grantor to make changes during his or her lifetime (therefore keeping control and autonomy) but also allows for the streamlining of management and an easy transition of the property upon the death of the original Grantor.  The successor Trustee can sell or manage the property outside of Probate, and depending on the Trust terms, without the input of or disruption to the Beneficiaries.

Beneficiary Deeds

Tennessee does not offer this, but some states allow the use of a Beneficiary Deed to clarify how a property is to pass upon the owner’s death. Essentially, a Beneficiary Deed lets a person name a beneficiary and only takes effect upon the death of the owner. Ask your Estate Planning Attorney about the availability of Beneficiary Deeds if you own property in multiple states.

Right to Partition

If you are tied up in joint property ownership, or if you own a piece of property with a group of individuals or family members and you want to end the relationship and go your separate way, you can. In Tennessee, you have the legal right to what is called “partition.” Speak with a civil litigation attorney about filing a partition lawsuit. In this kind of lawsuit, you ask the judge to partition the property, either “in kind” or “by sale.” To learn more about this kind of lawsuit, read our previous Blog Post about Partition Lawsuits.

Need Help with a Property Ownership Issue?

Have questions about joint property ownership or other real estate issues? Please call us at 901-372-5003 or send Wiseman Bray PLLC an email.

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

 

**Blog Post by:  Erin Shea and Carlisle Dale

erin shea, injury lawyer at wiseman bray memphis  carlisle dale, memphis asset protection

 

 

 

 

**Special thanks to Real Estate Closing Attorney Jennifer Sisson of Sisson and Sisson Law Firm for contributing her wisdom and insight to this Blog Post.

Who Says a Judge Can’t Be Funny?

judge While the underlying crime is by no means funny — i.e. an argument over a dog pooping in a neighbor’s yard that led to a machete fight — Judge Jeff Sutton of the United States Court of Appeals for the Sixth Circuit offers up several good “one-liners” in response to the criminal defendant’s arguments, including the following:

 

“‘There is nothing new under the sun.’ Ecclesiastes 1:9. Maybe so. But this is a first for us — a dispute between next-door neighbors about uncollected dog deposits that degenerated into a near-fatal assault with a machete.”

“Walker’s belief, however honest, was emphatically unreasonable. He had no objective indications that his neighbor was about to attack him with the stick. And even if he did, Walker brought a machete to a stick fight and nearly killed his neighbor in the process — all in a dispute over a canine trespass….”

“Walker’s lawyer attempts to downplay her client’s use of a machete, claiming that it is merely a ‘garden implement.’  That is easy for her to say. The neighbor…presumably sees it differently, for the same reason that the victim of a near-fatal knifing would not characterize the weapon as a ‘kitchen utensil.'”

branch-308013__180Responding to arguments that the defendant was otherwise a “model citizen,” Judge Sutton wrote: “Being a model citizen for 364 days of the year is not of much use if this is what happens on the 365th day.”

knife

The opinion is barely 4 pages long and well worth the quick read. United States v. Jeffery T. Walker, No. 14-6490, 819 F.3d 877 (April 11, 2016).

 

 

Need a Lawyer?

We hope you never need help with a case involving a machete!   However, if you need a lawyer, please call us at 901-372-5003. We represent victims in personal injury cases, apartment crime cases, wrongful death cases, auto accidents, and more.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

Wrongful Death of a Child

wrongful death of a child attorneyNo one should have to ever think about the wrongful death of a child. As a mother of two young children, I can’t think of anything more unbearable than the loss of a child. But according to the American Association for Marriage and Family Therapy, over 57,000 children under the age of 19 die every year in the United States.

Our law firm represents parents who have lost a child due to the fault of another person or company. The legal term for a death caused by someone else’s negligence or wrongdoing is “wrongful death.”

Who can File Suit for Wrongful Death of a Child?

In Tennessee, only certain people have the right to file a lawsuit to recover damages for the wrongful death of a child. As a general matter, the child’s parents can file suit against the responsible party.  If the parents are divorced, special rules apply. Usually, the parent with “primary custody” has the right to file suit. An administrator can also file the lawsuit. Tenn. Code Ann. Section Tennessee Code Annotated Section 20-5-106 provides that the wrongful death cause of action:

shall pass to . . .the [child’s] natural parents or parent or next of kin if at the time of death [the child] was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by [the parents] pursuant to any court order removing [the child] from the custody of [the parents or parent]; or otherwise to the [child’s] legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.

Occasionally, due to family circumstances, wrongful death cases involving children can become very complicated. Sometimes disputes arise between divorced parents or among family members as to how the case should be handled. Also, even if you aren’t the person to file the lawsuit, you may still be entitled to recover a portion of the damages awarded. Likewise, the person who files the lawsuit may or may not be entitled to a portion of the money damages awarded. An experienced wrongful death attorney can talk with you, learn about your family situation, and advise you on your potential rights.

What are the Damages in a Wrongful Death Case Involving a Child?

Damages in a case involving the wrongful death of a child are determined on a case by case basis. A jury will look at all of the facts and circumstances and make an award. Legally speaking though, the types of damages recoverable in a wrongful death case are statutory and are set forth in Tennessee Code Annotated Section 20-5-113. The general categories are:

(1)     Injuries Suffered by the Child from Time of Injury Until Death

This classification allows recovery for medical expenses, physical and mental pain and suffering, funeral expenses, and loss of earning capacity during the period from injury to death.

(2)     Incidental Damages Sustained by Child’s Next of Kin

This classification of damages includes the pecuniary value of the child’s life.  The “pecuniary value” of a deceased child’s life represents the value of the child’s probable future financial accumulations at the time of the child’s death.  To determine the pecuniary value of a decedent’s life, a court considers the following factors: life expectancy and age, condition of health, capacity for earning money through a skill, art, trade, profession, occupation or business, and personal habits regarding sobriety and industry. The amount should then be reduced by deducting the decedent’s probable living expenses had the decedent lived.

In the case of a wrongful death of a child, the analysis is a bit different. Living expenses are the costs associated with child-rearing. In the case of a very young child, estimates of the child’s future earnings and contributions are speculative at best. For this reason, it can be helpful to have expert testimony concerning the valuation of a child’s pecuniary losses.

Loss of Consortium (Filial Consortium Damages)

Pecuniary value also includes the value of human companionship. Parents of a deceased child are entitled to recover for loss of consortium.  However, these claims for loss of consortium cannot exist independently from the claim that a defendant’s negligence caused the child’s death. Thus, parents cannot recover for the sorrow and anguish endured as a result of the child’s death. Rather, the “pecuniary value” of the child’s life includes a value for the parents’ loss of consortium

In determining the amount of consortium damages, courts consider the benefits the child bestowed on the family, such as companionship, comfort, society, attention, cooperation, affection, care and love. Because it is impossible to generalize on the extent to which family members enjoy each other’s companionship and society, the measurement of a particular parent’s loss of a particular child’s consortium is decided on a case by case basis.

Punitive Damages

If the child’s death was caused by reckless or intentional conduct, parents can seek punitive damages. Punitive damages are designed to punish the responsible person and deter similar behavior.

Negligent Infliction of Emotional Distress

Depending on the facts of the case, parents of a deceased child may be able to assert independent claims for “negligent infliction of emotional distress.” An experienced wrongful death lawyer can advise you further about this and other claims you may have.

Limits on Damages in Tennessee Due to Tort Reform

As a general rule, the most that parents can recover for “loss of consortium” damages for the wrongful death of a child is $750,000. Punitive damages are usually limited to $500,000 or two times the compensatory damages, whichever is greater. One of our Memphis wrongful death attorneys can discuss your case and explain the rules on damages in Tennessee, as well as the various limitations in effect due to Tennessee Tort Reform.

Looking for a Caring and Compassionate Wrongful Death Lawyer?

If you’d like to speak with a caring and compassionate wrongful death lawyer in the Memphis or Nashville area, please call our office at 901-372-5003. We’re not your everyday law firm. We are mothers and fathers just like you and we treat our clients like family. There is never any charge for an initial consultation or meeting.  To get email notifications of our blog posts, please sign up here.

Resources for Families Suffering the Wrongful Death of a Child

Understanding Grief When Your Child Dies

The Death of a Child: The Grief of the Parents: A Lifetime Journey

 

Blog Post by:   Erin Shea

memphis personal injury lawyer and wrongful death attorneyErin practices in the area of civil litigation, including personal injury and wrongful death, premises liability, apartment crime, business and contractual disputes, and insurance claims. Before joining Wiseman Bray PLLC, Erin practiced at Rainey, Kizer, Reviere & Bell PLC, gaining extensive experience in litigation. Her experience at a large insurance defense firm gives her a unique perspective in advancing claims on behalf of the firm’s clients.

Erin has been listed as a Mid-South Super Lawyers Rising Star every year since 2009  and is a Fellow of the Memphis Bar Foundation.

She is married to Martin F. Shea, Jr., and has two very active young children— Elin (Age 4) and Martin (Age 21 months)– and a German Shepherd dog named Iko.  In her spare time, she enjoys reading, movies, good television, and exercise.

 

 

Erin Melton Shea

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003