May 16, 2016 In Business Litigation

How to Dissolve a Tennessee LLC

dissolve tennessee llc Need 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.

May 11, 2016 In General

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

Divorce Lawyer Tennessee

divorce attorney memphis We 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.

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38103

(901) 372-5003

EMAIL US HERE.

Lucie Brackin, Guest Blogger

May 9, 2016 In Business Litigation, Estate Planning

Wyoming Close LLCs Protect Assets

A popular asset protection tool we use at Patterson Bray 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.

May 5, 2016 In Auto Accident, Civil Litigation, General, Personal Injury

Who is the best lawyer near me?

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 Patterson Bray 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 Patterson Bray, 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.

April 14, 2016 In Civil Litigation, Personal Injury, Uncategorized

Swimming Pool Injury and Drowning Cases in TN

pool injury lawyer, pool injury attorney, drowning victim attorney

Swimming pool injury cases are serious.

One of the most heartbreaking cases I have ever handled involved the accidental drowning death of a teenage boy. The parents of the young drowning victim grappled with death of their son at what started out as a fun swimming party with friends. The owner of the pool and the other party guests felt enormous grief, but at the same time, they did not know what they could have done differently. While the case was eventually settled, everyone involved was devastated, and the effects of the young man’s death were far-reaching. I will never forget the emotions of all of the parties and witnesses involved in that case.

Most people have no idea just how dangerous a swimming pool can be. Drowning and other swimming pool injuries happen quickly and quietly. Look at these statistics from the CDC:

Drowning Statistics

Every day, about 10 people die from drowning.
About 1 in 5 of those are kids 14 and under.
Nearly 80% of drowning victims are male.
Children ages 1-4 have the highest drowning rates. Among children ages 1-4, most drownings occur in home swimming pools.
The drowning rate for African Americans is significantly higher across all ages. The disparity is widest among children ages 5-14.

Pool Drains Can Be Deadly

Drowning isn’t the only swimming pool safety concern. Pool drains can also cause significant injuries and death. In fact, there is federal legislation governing public pool drains because of the serious risk of harm and death. The legislation is known as the Virginia Graeme Baker Pool & Spa Safety Act and it is named after a young girl who drowned after she was trapped under water by suction from a hot tub drain. The suction from the drain was so strong that her mother tried to pull her from the drain but could not. The two men who eventually freed the girl pulled so hard that the drain cover broke from the force. The little girl died from drowning, but the real cause of her death was suction entrapment due to a faulty drain cover.

What to Do After a Swimming Pool Injury or Drowning

If you or a loved one has been injured in a swimming pool or hot tub, you may be entitled to compensation for your damages. Here are some pointers about what to do:

Take photos of the scene. Include the pool, equipment, fencing, gates, toys, surrounding area, etc. It is extremely important to document the scene of the injury or death before the pool owners make any changes.
Write down names, phone numbers, and addresses of any witnesses. If you decide to pursue a claim, your attorney will need to be able to contact and interview witnesses.
Talk with a Swimming Pool Injury Lawyer. An experienced lawyer can examine the facts of a case and advise you of your legal rights and options.

Legal Info on Drowning and Pool Injury Lawsuits

In Tennessee, swimming pool owners have a duty to exercise reasonable care for the safety of persons using or accessing a swimming pool, hot tub, or spa. If a swimming pool owner is negligent, or fails to act with reasonable care, and a person drowns or is injured as a result, the pool owner will be liable for damages.

Every case is unique. Outcomes and liability assessments depend on the specific facts involved. A swimming pool injury lawyer will be able to talk with you about the circumstances under which the injury or drowning occurred and can give you the appropriate legal advice. Some of the factors that will influence the outcome of a Swimming Pool Injury or drowning case are:

Age of the victim
Swimming experience of the victim
How the victim entered the property
How the victim entered the pool
Time frames
Fencing around the property and/or pool
Condition of the pool water, i.e., was it murky or cloudy?
Gates and access mechanisms for entry to backyard or pool area
Characteristics of property, i.e., visibility from public areas, presence of toys.
Safety equipment available
Type of supervision provided
Involvement of alcohol
Type of pool drain and other maintenance equipment
Whether the pool was public or privately owned
Training of lifeguards and other staff
Notice to pool owners of dangers, access problems, or prior trespassing
Local ordinances and codes that apply to swimming pools

Examples of Tennessee Court Cases on Drowning

Case outcomes are dependent on the facts and the proof or lack thereof that is presented in Court by the trial lawyers for the parties. Below are just a couple of examples of Tennessee drowning cases, either one of which might have turned out another way had the facts been slightly different:

Harper v. Elliott (1999). Four year-old boy wandered onto the pool owners’ property and drowned in their pool. The owners had a 46 inch high wrought iron fence with vertical bars surrounding the pool and access was through 2 gates with simple latches. The pool had a diving board and a slide and there were colorful inflatable toys in and around the pool. The subject street was a busy four lane and the child lived a few doors down. He had left his home while his father was away on a job interview and his mother was asleep. There was no evidence of the route the child took, or how he entered the pool area. A police officer speculated that he squeezed between the bars of the fence, took off his clothes, and slid down the slide into the pool. There was no evidence of what the child could have seen from public spaces. The judge said that it was too much to say that the pool owners knew or should have known that children were likely to trespass on their property. In all the years since they built the pool, they had never known of a child coming onto their property uninvited. Also, the street at issue was a busy, four-lane street, making it highly improbable that a child small enough to fail to appreciate the danger of a swimming pool would be wandering alone in the neighborhood. The judge granted summary judgment in favor of the pool owners and the jury never heard the case. Harper v. Elliott, No. 01-A-01-9809-CV00503, 1999 WL 499737, at *1 (Tenn. Ct. App. July 16, 1999).

Toney v. Cunningham (1999). A 19 month-old baby girl drowned while attending a Memorial Day celebration. The child’s grandmother agreed to watch her while the mother worked and took her over to the home of the defendants for a party. The grandmother took the child to one of the bedrooms in the home for a nap and then went outside to watch some other guests play tennis. On 2-3 occasions, the grandmother checked on the child, each time finding that she was asleep. During the tennis match, a ball was hit over the fence. A party guest attempted to retrieve the ball and saw the child floating face down in the swimming pool. The child’s mother filed a wrongful death suit against the pool owners. The court granted summary judgment to the pool owners because it did not think that, under the facts of the case, that the particular injury experienced by the baby was foreseeable to the pool owners. This was because at the time of the accident, the baby was under the supervision of her grandmother. Additionally, the pool owners and several guests were on or near the tennis court when the accident occurred. From the tennis court, the swimming pool is easily visible. It was unlikely that the baby would open the back door, walk to the swimming pool, and fall in without being seen or heard. Also, the pool owners knew that the baby was in the care of her grandmother and had every right to believe and expect that the grandmother would supervise the child. Balancing the factors, the court granted summary judgment in favor of the owners, meaning the case was never heard by a jury. Toney v. Cunningham, No. 02A01-9801-CV-00005, 1999 WL 188291, at *5-6 (Tenn. Ct. App. Apr. 6, 1999).

We Handle Swimming Pool Injury and Drowning Lawsuits

We represent pool injury victims and the families of those who have lost loved ones due to accidental drowning. If you need a Swimming Pool Injury Lawyer or an Accidental Drowning Lawyer in the Memphis or Nashville area, please call us at 901-372-5003 or email us here. Our work is personal. Our clients become family. Either I or one of our other experienced attorneys will meet with you and provide a free consultation. We will examine the facts of your case and advise you on your legal rights and options.

By: Erin Melton Shea

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.pattersonbray.com

April 12, 2016 In Estate Planning

Basic Asset Protection in Tennessee

asset protection lawyer, asset protection attorney, memphis How do you achieve asset protection? How do you best limit your liability and protect the assets and investments you have spent so much of your life building up? While you cannot completely eliminate exposure to potential liability, you can achieve asset protection through the use of simple techniques, like buying the right kind of insurance, or through the use of more sophisticated tools like asset protection trusts.

General Layers of Asset Protection Planning

Purchase Protective Insurance. Examples: long-term care insurance, professional liability insurance, and umbrella personal liability coverage. Insurance is the simplest and most affordable way to protect your assets. When our clients ask us if we think they have enough insurance, we always tell them that you can never be over insured.
Utilize Statutory Law Protections. Examples: ownership of real estate as tenants by the entireties, homestead exemptions, retirement plans, and life insurance or annuities. Real property owned by a husband and wife as tenants by the entirety is exempt from the separate creditors of each spouse. Additionally, other statutory protections provide that specific assets may be protected from creditors in certain circumstances. For example, in Tennessee, life insurance passing to a surviving spouse or child passes free of the claims of a decedent’s creditors. You should consult an attorney to find out which of your assets may be statutorily protected.
Domestic Asset Protection Trusts. Tennessee is only one of a handful of states that has a specific statute allowing an individual to create a self-settled asset protection trust. This means that a person can create the trust, have control over certain aspects of the trust, and also be a beneficiary of a trust. The rules governing these types of trusts are very specific. These types of trusts are also available in Mississippi, Delaware, Alaska, and Nevada. If you are interested in learning more, click here.
Domestic Entity Planning. Example: Wyoming Close LLC. An LLC, unlike a corporation, allows the members of the entity to separate their personal liability from their liability as members of the company. The most enticing feature of an LLC is the fact that a creditor of the LLC cannot attach the personal assets of the LLC’s members. We prefer using a Wyoming LLC because the laws in Wyoming are among the most favorable in terms of the protection an LLC provides.

Need an Asset Protection Attorney to Help Protect Your Assets?

We are experienced asset protection attorneys with offices in Memphis and Nashville. We can help develop a plan to best suit your individual needs. Call us today at 901-372-5003 or email us here.

Asset Protection Planning 101

It is not uncommon for people to have diligently planned and saved for financial security yet fail to implement any type of plan to protect those assets they have amassed. This leaves them vulnerable to asset seizure in the event they lose a lawsuit or are pursued by creditors. This is why it is so critical to work with a seasoned attorney who specializes in asset protection. The attorneys at Patterson Bray PLLC can sit with you and go over asset protection 101 in a way that is understandable and reassuring.

Benefits to Asset Protection

There are many benefits to having taken the steps to legally protect your assets. These can include:

Asset protection from creditors
Asset protection from divorce settlements
Asset protection from excessive medical bills when no health insurance or limited health insurance coverage exists
Asset protection from lawsuits
Asset protection from nursing homes or other assisted living facilities
Business asset protection from lawsuits, creditors, or other claims
Inheritance protection for adult children from divorce and/or creditors

Working with Our Asset Protection Law Firm

When you work with an attorney from Patterson Bray PLLC, we will work to develop strategies that will be specifically made for your situation. Some of the more asset protection 101 tools we can utilize include trusts and Family Limited Partnerships (FLP). Your attorney will also examine the different retirement accounts our clients have to ensure that they are maximizing the contributions made to their pension, 401(k), and IRAs. This not only benefits the client in increasing the amount of money they will have saved when they retire, but it also protects those assets in the event a creditor wins a judgment against the client or they lose any other type of lawsuit

Your asset protection attorney may also tell you that increasing the amount of insurance coverage you have may be beneficial. This can include homeowner’s insurance, business insurance, or a personal umbrella policy. Having significant liability insurance coverage can help minimize risks to your assets in the event of a lawsuit.

If you are a small business owner, your attorney will also examine the type of business structure you have set up. This can help to ensure that your personal assets are protected from any business liabilities that may arise. This is often done by creating a Limited Liability Company (LLC). By forming an LLC, small business owners will not be personally liable for any debts, judgments, or other liabilities of the business, and their personal assets and property are protected.

Call Our Office Today

If you would like to learn more regarding asset protection 101 and how to protect your family and/or business in the event of legal or financial issues that may arise, call Patterson Bray PLLC to schedule a free and confidential consultation.

By: Carlisle Dale

Patterson Bray

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.pattersonbray.com

April 7, 2016 In Business Litigation, Contracts

Small Business Tip: Include Provision in Your Contracts to Recover Attorneys’ Fees

small business lawyer, small business attorney

Reason to Add an Attorney Fee Provision

You’re running a small business. You have a form, purchase order, or other short contract you always use. Take a moment to look at your forms and contracts. Do they include an attorney fee provision? If not, we recommend that you add one.

If someone fails to pay you, you might need to file a lawsuit to recover what you are owed. Going to court is expensive. In Tennessee, each party is responsible for paying their own attorney fees. That’s right–even if you win in court, you generally can’t make the other side pay your attorney fees unless you have an attorney fee provision in your contract. For more information on attorney fees, read this blog post.

Sample Attorney Fee Provision

If any party institutes any action or proceeding to enforce any provision of this contract by reason of any alleged breach of any provision herein, the prevailing party shall be entitled to receive from the losing party all legal fees and costs incurred in connection with any such proceeding.

We are Small Business Lawyers.

Check out our team at Patterson Bray. If you need help with your small business contracts, agreements, or forms, or if you have a question about business litigation or the recovery of attorney fees in a lawsuit, please call us at 901-372-5003 or email us here. We have offices in Memphis and Nashville TN.

April 6, 2016 In Auto Accident, Civil Litigation, Personal Injury

Why You Don’t Hear About Liability Insurance in a Jury Trial

memphis injury lawyer jury trial

Why You Don’t Hear About Liability Insurance in a Jury Trial

Did you know that during most Tennessee state court jury trials, you will never hear the word “insurance?” That’s because 99% of the time, evidence of liability insurance is not admissible under the Tennessee Rules of Evidence.

Tennessee Rule of Evidence 411 provides that:

Evidence that a person was or was not insured against liability is not admissible upon issues of negligence or other wrongful conduct. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Rationale

Rule 411 is based on the notion that disputes should be resolved based on the conduct of the people involved, not based on whether they have insurance.

Insurance Jury Instruction

Not everyone has insurance. Some people have some insurance, but not enough. Sometimes a person will have purchased an insurance policy only to find out that it won’t apply to pay damages in certain kinds of lawsuits. Sometimes the Judge will issue a jury instruction in Tennessee to help guard against improper consideration of insurance. When the instruction is used, the Judge tells the jury that:

[W]hether or not insurance exists has no bearing upon any issue in this case. You may not discuss insurance or speculate about insurance based on your general knowledge. There are sound reasons for this rule. A party is no more or less likely to be negligent because a party does or does not have insurance. Injuries and damages, if any, are not increased or decreased because a party does or does not have insurance.

Tennessee Pattern Jury Instruction – Civil 1.05.

Insurance Information Is Still Useful

Just because we can’t use evidence of insurance in jury trials doesn’t mean we can’t make good use of the information. Knowing whether parties are insured, and to what extent, helps us develop an efficient strategy for resolving a dispute, and it helps us give sound advice to our clients who are wondering if they should settle a claim or file a lawsuit.

Need help settling a claim with a liability insurance carrier?

We can help you. Patterson Bray has offices in Memphis and Nashville Tennessee. Call us at 901-372-5003 or email us here.

April 5, 2016 In Auto Accident, Civil Litigation, Personal Injury

It’s Prom Season: Liquor Liability for Allowing Minors to Drink Alcohol

liquor liability for prom party

What You Need to Know About Prom Season

Since it’s Prom Season, let’s talk about liquor liability for social hosts.

Let’s say you’re one of those parents who thinks, “teenagers are going to drink, so I’m going to allow my kids to drink in my home so they won’t do it somewhere else.” Your teenager asks you if he can have a “Prom After-Party” at your home with a few friends. You agree. You also agree that they can “drink a little.” You tell your son that no one will be allowed to drive.

Now consider this, let’s say your daughter was in a car accident on her way home from Starbucks after her Prom. Other than coffee, she hadn’t had a drop to drink. The other driver was an underage intoxicated teenage girl who had just left a “Prom After-Party” at a private home where alcohol was served. She disregarded the “no one is driving home” rule that the parents set for the evening.

So, what’s the law on parents who allow minors to drink in their homes?

Social Host Liquor Liability

In general, if you host a party and serve free alcohol to your guests, you’re not going to be liable if they become intoxicated and injure someone on the way home. Tennessee Liquor Liability statutes are designed to apply mainly to bars, restaurants, and liquor stores, so there’s a distinction between selling alcohol and otherwise providing it. Tenn. Code Ann. 57-10-102. However, as is usually the case, there are exceptions, meaning that even if you don’t sell alcohol, you could still become liable under certain circumstances.

Serving Alcohol to Minors

If you have a party at your home and serve alcohol to a minor who becomes intoxicated, you could be held liable if that minor causes injury or damage to a third person. You could even be liable if you don’t provide the alcohol, but you know the minors are drinking it. This is because, in some cases, the law considers an adult host to be in a “special relationship” with a minor guest, such that the adult host owes a duty to ensure the safety of the minor guest, as well as to keep the minor from driving while intoxicated.

Liquor Liability Law in Tennessee is Complex

It is important to contact an attorney as soon as possible if you have a potential Liquor Liability case. While underage drinking is certainly illegal, civil liability implications are extremely fact-intensive and liability varies from case to case.

Patterson Bray has offices in Memphis and Nashville TN. If you have a question about liquor liability, the Dram Shop Act, or social host laws in Tennessee, please call us at 901-372-5003 or email us here.

Example of a Liquor Liability Case Involving Minors

For an example of a liquor liability case involving minors and alcohol, read the Biscan v. Brown case.

March 31, 2016 In Business Litigation, Civil Litigation

The Other Side is Lying. Can I Sue for Defamation?

“Can we sue them for defamation?” That is a question we receive very frequently from both Plaintiffs and Defendants we are representing in pending litigation. Typically, the question is a reaction to reading or hearing something alleged in the lawsuit, whether in a complaint, answer, discovery responses, or during courtroom or deposition testimony. The client asking that question usually feels that his or her integrity is being questioned, is very upset, and wants to know if he or she can “counter-sue.” In the context of litigation, the answer is no. Let’s explore why.

What is Defamation?

To win a defamation case, you must prove that:

(1) Someone “published” a statement about you. (“Publication” is a legal term of art meaning the communication of the subject defamatory matter to a third person.)

(2) The publication occurred with knowledge that the statement was false and defaming to you, or with reckless disregard for the truth, or with negligence in failing to ascertain the truth.

(3) Your reputation was injured. Damages from false or inaccurate statements cannot be presumed. Actual damages must be suffered and proved.

Brown v. Christian Bros. Univ., 428 S.W.3d 38 (Tenn. Ct. App. 2013). A statement is not defamatory just because it is annoying, offensive or embarrassing. Rather, the statement must be a serious threat to your reputation. Defamation includes both libel and slander. Libel is written defamation. Slander is spoken defamation.

But wait . . . there’s the Judicial Proceeding Exception

Statements made in the course of judicial proceedings which are relevant and pertinent to the issues cannot be used as a basis for a libel action for damages. This is true even if the statements are known to be false or even malicious.

The policy behind this rule is the paramount importance of access to the judicial process and the freedom to institute, defend, and participate in a lawsuit without fear of being sued for defamation. This exception in Tennessee may leave a wronged individual with no remedy, but our courts have determined that the rights of the individual must be sacrificed for the public good. Desgranges v. Meyer, No. E2003-02006-COA-R3CV, 2004 WL 1056603, at *5 (Tenn. Ct. App. May 11, 2004).

What should I do if I think I have a defamation, libel, or slander case?

Call a lawyer to discuss your case as soon as possible. The deadline for filing a slander suit is 6 months from the time the words are spoken. The deadline for filing a libel suit is 1 year after the words are written. Gathering and preserving your evidence is crucial. Remember you must prove not only that someone defamed you, but that you suffered actual damages.

Patterson Bray

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Memphis, Tennessee 38018

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