No estate plan: a lesson from the extraordinary life of Aretha Franklin

It’s been widely reported that Aretha Franklin, The Queen of Soul, died without any sort of Estate Plan leaving many people wondering: “Why would someone so successful not have a financial plan in place?”  We should all pause and THINK about what we’re trying to do with our assets after death.

Unfortunately, it is fairly common for people to die without even the simplest form of an Estate Plan.  Even tremendously successful individuals like Prince and Aretha Franklin have made this mistake.  While Prince and Aretha Franklin certainly have more complex financial affairs than most of us, Estate Plans are not just for rich people.  In fact, a basic plan can be relatively inexpensive, especially when you consider the potential legal fees and costs which arise when there is no plan at all.

WHY HAVE A WILL OR ESTATE PLAN?

Whether we are meeting with potential clients or giving estate planning seminars, we always stress the importance of having an estate plan in place no matter how simple the plan might be.  Even a simple Estate Plan gives your family guidance and allows them to R-E-S-P-E-C-T your wishes.

The only way you can be sure to “get what you want” is to properly (and legally) communicate your wishes. Simply telling someone won’t cut it. After all, neither a judge nor your family will be able to ask you after your death.  Having a plan in place can also help prevent family fights. You may think your family would never fight over your assets after you die. You may be right, but you may also be wrong. There’s no good reason to take a chance. Make your wishes so clear that your family members have nothing to fight about after your death.

An Estate Plan is important irrespective of your financial situation. You do not have to be rich or famous to need a Will. Even if you think you don’t have enough assets to justify an Estate Plan, it is likely that your possessions have real meaning to family members or friends.

WHY PEOPLE DON’T HAVE A WILL OR ESTATE PLAN.

Typically, people put off planning because they are “too busy” or they simply do not want to think about their own mortality. Death can be an unpleasant topic.  It is obviously an uncertain event which makes it is easy to put off and left for another today. However, death is an unfortunate reality for everyone.  As such, we should all learn a lesson from Aretha Franklin’s mistake and plan ahead.

WHAT HAPPENS IF SOMEONE DIES WITHOUT A WILL?

If you don’t have an Estate Plan or Will, your Estate may become subject to state law and Probate Court orders. This is likely to lead to family arguments and legal fees and costs, which in the end reduces the amount of assets remaining for your family members.

NEED A TENNESSEE ESTATE PLANNING LAWYER?

We work hard to make setting up your Estate Plan as easy as possible.  Basic plans can be relatively inexpensive even though they are drafted with your specific needs and concerns in mind.  If you do not have an Estate Plan or have not had your plan reviewed in a number of years, you need an Estate Planning lawyer Memphis trusts to guide you through the process.

Call Wiseman Bray PLLC at 901-372-5003.

Lang Wiseman Sworn in as Member of the University of Tennessee Board of Trustees

Lang Wiseman was sworn in on August 1, 2018, as one of eight members of the University of Tennessee Board of Trustees.  Governor Bill Haslam called the meeting to order, and Chief Justice Jeff Bivens of the Tennessee Supreme Court administered the oath of office.  Others joining the UT Board included Bill Rhodes, the Chairman, President & CEO of Autozone, Donnie Smith, former President & CEO of Tyson Foods; John Compton, former President of PepsiCo and current partner with the investment firm Clayton, Dubilier & RiceJohn; and Amy Miles, former CEO of Regal Entertainment Group.

Lang Wiseman during the UT Board meeting.

Lang Wiseman during the UT Board meeting.

Chief Justice Jeff Bivens administers the oath to the UT Board of Trustees.

Chief Justice Jeff Bivens administers the oath to the UT Board of Trustees.

Chief Justice Jeff Bivens and Lang Wiseman execute the Board oath.

Chief Justice Jeff Bivens and Lang Wiseman execute the Board oath.

Congrats to Lang!

Governor Bill Haslam calls the UT Board meeting to order.

Governor Bill Haslam calls the UT Board meeting to order.

Non-compete agreements in Tennessee

Are non-compete agreements enforceable in Tennessee?

It depends. Generally speaking, non-compete agreements, also called ‘covenants not to compete’, are disfavored in Tennessee. See Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn. 1984). Courts interpret these agreements strictly in favor of the employee, in part because the agreement is a restraint on trade. Having said that, courts will uphold non-compete agreements if there is a legitimate business interest to be protected and the agreement sets reasonable time and territorial limitations. Id.

What makes a non-compete agreement reasonable?

When deciding whether a non-compete agreement is reasonable, Tennessee courts will consider the following relevant factors:

1. the consideration supporting the agreement;
2. the threatened danger to the employer in the absence of the agreement;
3. the economic hardship imposed on the employee by the agreement; and,
4. whether the agreement is against the public interest.

Additionally, the time and territorial limitations must be no greater than necessary to protect the employer’s legitimate business interest. In other words, a company cannot expect a court to uphold a non-compete agreement which purports to prevent an employee from ever taking a job with another company in the same general line of work.

Does the employer have a legitimate business interest which deserves protection?

Obviously, employers cannot restrain ordinary competition. Therefore, employers must show that without the non-compete agreement, the employee would gain an unfair advantage in future competition with the employer. Id.

Courts consider the following to determine whether an employee would have an unfair advantage:

1. whether the employer provided the employee with specialized training;
2. whether the employee is given access to trade or business secrets or other confidential information; and,
3. whether the employer’s customers tend to associate the employer’s business with the employee due to the employee’s repeated contacts with the customers on behalf of the employer.

Of course, an employer does not have a protectable interest in the general knowledge and skill of an employee. Id. However, an employer can typically prevent former employees from using its trade or business secrets or other confidential information in competition with the employer. While figuring out what constitutes a trade secret is generally easy, determining what constitutes confidential information can be much more difficult. Indeed, in one particular case, a Tennessee court held that customer lists, customer credit information, pricing information, and profit and loss statements did not constitute confidential information because such information is easily available from sources other than the employer. Id.

If you are an employee with a potential non-compete dispute or an employer looking to prevent unfair competition and/or protect confidential information from your competitors, you need a business litigation lawyer Memphis knows and trusts to handle the matter for you.

Call us today at 901.372.5003.

When can a subcontractor file a lien?

Under Tennessee law, a subcontractor is considered an indirect lien claimant since he or she typically does not have a contract with the owner of the property. Even though a subcontractor does not have a contract with the owner, he or she might still have lien rights. To determine if a subcontractor has lien rights, you must consider the following: Did the subcontractor contribute to an improvement in real property? Is the improvement part of a residential or commercial project? Has the subcontractor taken the necessary steps to ensure he or she has not lost whatever lien rights he or she may have had?

Improvements

In most situations, this is obvious. The subcontractor has either performed services or delivered materials as part of a construction or renovation project that permanently alters or “improves” the real property.

Residential or commercial property

For subcontractors, Tennessee law treats residential projects and commercial projects differently.

Residential projects

Generally speaking, subcontractors do NOT have lien rights for improvements made to residential property. One exception in which a subcontractor does have lien rights against residential property is when the owner is acting as the general contractor. In that situation, the subcontractor has a direct contract with the owner/general contractor. As an aside, a subcontractor may have a cause of action against an owner that is acting as the general contractor even if their contract is not in writing.

Commercial projects

Subcontractors have lien rights for improvements to commercial property. However, they must follow specific statutory requirements or they risk losing those rights. Subcontractors must send a Notice of Nonpayment to the owner and general contractor to keep their lien rights. Tennessee law has strict requirements for Notices of Nonpayment. Subcontractors must include very specific information and must send their Notice timely otherwise they risk losing their lien rights. After sending a timely Notice of Nonpayment with all the required information, subcontractors must then send a copy of their Notice of Lien to the owner and general contractor too. Once both the Notice of Nonpayment and Notice of Lien have been timely sent, a subcontractor can file his Notice of Lien.

Enforcing a valid lien

To enforce a valid lien claim, a subcontractor must file his or her lawsuit within ninety (90) days of their Notice of Lien. If they fail to file an appropriate lawsuit within that statutory time frame, he or she will lose his or her lien rights.

If you are dealing with a general contractor that has not paid, you need a construction lawyer Memphis trusts to help you through the process.

Injured by a USPS driver? You might be able to sue the USPS.

Claims against the postal service can be tricky because the law with respect to these types of claims is unique.  Unfortunately, injured parties cannot simply file a lawsuit against postal service like you would against any other negligent driver.  Instead, you must comply with the Federal Tort Claims Act (“FTCA”).  Running afoul of the FTCA might negatively affect your rights.  As such, you need an experienced personal injury lawyer Memphis trusts to help you navigate this unique area of law.

United States Postal Service delivery vehicle

A brief history on suits against the federal government

Years ago, people could not even sue the federal government based on the legal doctrine of sovereign immunity, which is basically lawyer-talk for the notion that the government has to give you permission to sue it.  Stated differently, the federal government has to waive its sovereign immunity and consent to being sued.  Thankfully, Congress did just that by passing the Federal Tort Claims Act in 1946. 28 U.S.C. §§ 1346, 2671-2680.

 

Specifically, the FTCA allows suit against the federal government:

[F]or money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1).

As you can see, the FTCA is broad in that it allows injured parties to bring suit for the negligence of a government employee.  However, there are several unique aspects of the FTCA that can be tricky.

What’s different about claims brought under the FTCA?

  1. Administrative process

The most significant difference between filing a claim against a private individual and bringing one against the federal government for its employee’s negligence is the pre-lawsuit administrative process.  For claims brought under the FTCA, claimants must file a claim with the appropriate federal agency before filing their lawsuit. 28 U.S.C. 2675(a).  If the claimant does not comply with the administrative claims procedure, he or she cannot file suit in federal court and risks losing his or her rights altogether.

  1. Statute of limitations

Another notable difference is the statute of limitations for FTCA claims.  The FTCA replaces the state statute of limitations with a federal statute. See Chomic v. United States, 377 F.3d 607, 610 (6th Cir. 2004).  FTCA claims are subject to two (2) different limitations periods under 28 U.S.C. §§ 1346(b)(1):

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

As you can see, the FTCA essentially has two (2) different statutes of limitations.  One for the administrative claim and another for the eventual lawsuit if the claim is denied or ignored.

  1. Attorney fees

Another significant difference is that the FTCA establishes a cap for attorney fees of 25% for litigated matters and 20% for claims resolved during the administrative process. 28 U.S.C. § 2678.

Exceptions to the waiver of sovereign immunity

Under the FTCA, there are several types of claims for which the federal government retains its sovereign immunity and does not let individuals file suit regardless of whether a federal employee was negligent.  This is commonly referred to as an exception to the waiver of sovereign immunity.  One notable exception is for discretionary functions.  Pursuant to 28 U.S.C. § 2680(a), injured parties cannot sue the federal government for “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”  Application of the discretionary function exception can be complex.  At its core, though, the discretionary function applies (meaning the government cannot be sued) when a government employee is exercising permissible policy judgment. Stated differently, the exception does not apply when there is a violation of a mandatory policy. See United States v. Gaubert, 499 U.S. 315, 322-325 (1991).

The discretionary function exception along with several others can be difficult to analyze and tricky to navigate.  If you have been injured in an accident with a USPS employee, you need an attorney that understands the unique requirements for bringing claims under the Federal Tort Claims Act.

If you need help with a potential FTCA claim, call us today at (901) 372-5003 for a free consultation.

Trick-or-Treating Safety Tips from Wiseman Bray

personal injury lawyer memphis tn

Halloween is such a fun time of year, especially for children.   Sadly, it is also a very dangerous night for kids.  On average, twice as many child pedestrians are killed while walking on Halloween compared to other days of the year.  Only 18% of parents use reflective tape on their children’s Halloween costumes, and 12% of children ages 5 or younger are permitted to trick-or-treat alone!  In addition to talking with your kids about Halloween safety, here are some things you can do for a safer night:

 

  • Kids under 12 should trick-or-treat and cross streets with an adult.
  • Use reflective tape on costumes.
  • Walk on sidewalks and paths, and not in the street.
  • If there are no sidewalks, you should walk facing traffic as far to the side as possible.
  • Cross streets at corners only, using traffic signals and crosswalks.
  • Watch for cars that are turning around or backing up.

DRIVERS: If you are driving on Halloween night, be especially vigilant!  Slow down, even more than usual, in residential neighborhoods. Children are excited on Halloween and often move in unpredictable ways.

HOMEOWNERS. If you are a homeowner, here are some ways you can help keep trick-or-treaters safe:

  • Keep Property Well-Lit– Kids will be cutting through all parts of your yard to find your front door, so make sure that your property is well-lit and that it is obvious which door trick-or-treaters should go to.
  • Keep Property Unobstructed– Clean up yard debris, fill gopher holes, wind up hoses, and pick up toys or other equipment left in the yard.
  • Restrain Pets– Be sure to keep your pets away from the front door and porch, where they might get excited and jump on or bite trick-or-treaters. It is best to keep your pet in another room or in the garage during trick-or-treating time.

The attorneys and staff of Wiseman Bray PLLC wish you a very Happy and Safe Halloween!

erin shea injury lawyer memphis tn

Erin Shea, Attorney

What is the difference between a patent and a trademark?

Intellectual property is one of the most obscure areas of law, and many business owners, eager to protect their IP, need to know what protections patents and trademarks offer.  Often, you will be best served by consulting with a Chicago patent attorney about your intellectual property.  However, this provides an overview of the protections afforded by patents and trademarks.

A patent protects inventions.  There are actually three types of patents, utility patents, design patents, and plant patents.  Plant patents protect new asexually reproduced plants, including sports, mutants, hybrids and newly found seedlings, other than tuber propagated plants or plants found in an uncultivated state.

Design patents protect original ornamental designs for articles of manufacture, which includes almost anything that has ever been made, as well as graphical user interfaces for computers, smartphones and tablets as long as a portion of the display is shown.

Utility patents protect inventions that are new and an advancement on the current technology.  A utility patent can be directed to any manufactured good or industrial process based on the function or operation of the product.  Utility patents can be obtained from everything from software applications to transmission systems.  About 90% of the patents that are issued by the United States Patent & Trademark Office are utility patents.

Irrespective of the type of patent, the primary right that is granted by a patent is the right to exclude a competitor from practicing the invention embodied by the patent.

Trademarks, on the other hand, protect a business’s brand.  In particular, trademarks protect brands that are sufficiently distinctive to act as an indicator of the source of goods, services, and other economic activities. Trademark rights can be extremely valuable, and famous marks are frequently copied.  For example, many apparel manufacturers prominently display their marks, and competitors often counterfeit them.

2016-09-20_11-03-21Thanks to our friends and co-contributors at The Law Offices of Konrad Sherinian, LLC for their added insight into patents and trademarks.

Who Says a Judge Can’t Be Funny?

judge

Who Says a Judge Can’t Be Funny?

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.

Could an Independent Presidential Candidate Throw the Election to the House of Representatives?

could an independent presidential candidate win the White House

Could an Independent Presidential Candidate Throw the Election to the House of Representatives?

By: Lang Wiseman

Let’s talk potential Independent Presidential Candidate, Electoral College, and throwing the election into the House of Representatives.

The short answer?  Even assuming the election gets thrown into the House, only persons who actually receive a vote in the Electoral College would be eligible for consideration by the House.

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An Independent Candidate?

Many voters and commentators dislike both Clinton and Trump, and are actively seeking an independent candidate or candidates.  For example, last week a leading member of the #NeverTrump movement (Bill Kristol) suggested that David French, a good friend of mine from law school, would be his choice to run as an independent candidate. David is a great guy – smart, principled, patriotic, and down to earth.  And while you wouldn’t necessarily know it from looking at him or reading his work, he loves basketball and actually had a pretty good jumpshot back in law school.  Ultimately, though, David decided not to run.

The path to victory for an independent candidate would be extremely narrow, and shrinking every day, if not already closed as a practical matter.  The various windows for submitting petitions to qualify to appear on state ballots are closing rapidly, leading most of the Anti-Clinton/Trump forces to freely acknowledge that an independent presidential candidate would have little chance to win an election outright.

So what, then, could possibly be the goal?  At least one stated aim is to try to prevent either candidate from securing a majority of Electoral College votes, thus throwing the election into the House of Representatives where a “white knight” candidate could be selected for President.

But is it realistic to think Clinton and Trump could both be prevented from getting a majority of votes in the Electoral College? 

There are 538 total electoral votes, and 270 constitutes a majority.  While it is theoretically possible to have a 269-269 tie – indeed, there are 32 different tie scenarios if you assume 11 battleground states – it is highly unlikely.  Realistically, then, an independent presidential candidate would need to win at least one state in order to prevent both Clinton and Trump from getting to a 270 vote majority in the Electoral College.  However, that is more difficult than you might think.  In 1992, for example, Ross Perot garnered 19% of the vote nationally, but didn’t secure a single Electoral College vote because he failed to actually win a state.  Thus, without major funding or campaign infrastructure, an  independent candidate would likely need to focus almost exclusively on a small handful of states, and then hope for the best in the House of Representatives.

constitutional law memphis

But let’s assume that happens.  What’s next in the House?

The Twelfth Amendment to the United States Constitution spells out the process, and it actually works quite a bit differently than many voters and commentators apparently believe it does.  This has occurred only twice in history – the election of Thomas Jefferson in 1800 and Andrew Jackson in 1824.

First, the House doesn’t vote in a normal fashion where every representative gets to cast his/her separate vote.  The voting takes place by state, with each state getting one vote.  So a state with a majority of Democrat representatives would presumably vote one way, whereas a state with a majority of Republican representatives would presumably vote another way.  This possibly dilutes a Party’s voting strength.  Assume, for example, 3 states that each have 20 representatives.  States 1 and 2 each have 11 Democrats vs. 9 Republicans, compared to State 3 which has 20 Republicans and 0 Democrats.  If you totaled all those votes separately, then the vote of the Republican representatives would win easily: 38-22.  However, in state-by-state voting, the Democrats would lead 2-1.

Second, and perhaps more importantly, the Twelfth Amendment specifically prohibits a true “white knight” outsider scenario, because the House can only vote for a candidate who finishes in the top 3 in the Electoral College votes.  The pertinent part of the Twelfth Amendment states as follows:

“If no person have a majority [in the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for president, the House of Representatives shall choose immediately, by ballot, the president.”

Thus, a “white knight” candidate must have received at least 1 electoral vote in order to be eligible for consideration by the House.  That presumably means no Paul Ryan, no Bernie Sanders, no Mitt Romney, nor any other outsider who failed to participate in the general election process and win at least one state (or portion thereof, since 2 states — Nebraska and Maine — are technically not winner-take-all when it comes to their 3 electoral votes each).

election law lang wiseman

The Faithless Elector — the Last Possible Hail Mary?

The Electoral College technically meets and votes in December following the November election.  Based on the Twelfth Amendment, the only other way to trigger a “white knight” scenario would be for one or more of the electors to disregard the popular vote in his/her particular state and become what is referred to as a “Faithless elector” by casting his/her ballot for an outsider.   Twenty-nine states have laws or political party restrictions that technically require an Elector to conform his/her vote to the popular vote in the state; however, no one has ever actually been prosecuted for becoming a Faithless Elector.  Twenty-one states have no laws at all to require Electors to vote for a pledged candidate.

Barring a situation where an independent candidate actually won an electoral vote, the Anti-Clinton/Trump forces would be hoping for an election night that produced a tie in the Electoral College vote.  They would then hope to peel off one or more Faithless electors to cast votes for a “white knight” candidate in December, thus making him/her eligible for a miracle in the House of Representatives.

election law attorney in memphis

About Lang Wiseman: Lang is the former Chairman of the Shelby County Republican Party and attended the 2012 Republican National Convention.

Lang has substantial experience in the areas of business and commercial litigation; bank litigation and workouts; advising small and closely held businesses; insurance coverage disputes; personal injury; professional, medical and legal malpractice; wrongful death; construction litigation and lien disputes; election law; and government relations/public policy. Lang is also a Tennessee Supreme Court Rule 31 Listed Civil Mediator.

Prior to founding Wiseman Bray PLLC, Lang served as Counsel to the United  States  Senate Governmental Affairs Committee. He previously served as Law Clerk to Judge Harry Wellford of the Sixth Circuit Court of Appeals.  Lang graduated with honors from the Harvard Law School after attending the University of Tennessee on a basketball scholarship, where he finished as the 24th leading scorer in UT history (1,156 points). He also graduated with a perfect 4.0 GPA and was the Top Graduate in the College of Business.

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 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.