March 9, 2016 In Estate Planning, General

What does my spouse get when I die? Ask the Probate Lawyer.

Many people believe that if you die without a will, that everything passes to your surviving spouse. Did you know that is not necessarily true? Read on to learn more from a probate lawyer about what a surviving spouse is entitled to in Tennessee.

If you die WITHOUT a Will

If you die without a Will, the distribution of your assets will be governed by the Tennessee laws of intestate succession. If you die “intestate,” it means that you die without leaving a Will. This is what will happen if you die without a Will:

If you have a surviving spouse, he or she will receive your entire Estate if you had no descendants at the time of your death.
If you are survived by descendants, your spouse is entitled to either (a) one-third (1/3) of your estate, or (b) a child’s share, whichever is greater.

If you die WITH a Will

Even if you die with a Will that does not include your spouse, he or she will still be entitled to a portion of your assets. Your surviving spouse may take what it called an “Elective Share” against your Estate, which is based on the length of the marriage. There is a sliding scale, but the maximum Elective Share a surviving spouse can take is forty percent (40%) of the net Estate if the couple was married nine (9) years or more.

You Cannot Disinherit Your Spouse in Tennessee

Whether you die with or without a Will, in all but a few rare cases, your spouse will be entitled to a portion of your Estate. Generally, you must be legally divorced from your spouse in order to prevent that person from receiving a share of your Estate.

Other Allowances for Spouses

Other allowances for surviving spouses (which may also apply to minor children) include a $50,000 exemption for personal property, a reasonable allowance for a year’s worth of support according to the previous standard of living, and either the right to the homestead or $5,000 from the proceeds of the sale of the home. In some cases, a surviving spouse might be entitled to certain accounts of less than $10,000 or wages due to the decedent if no formal probate estate is opened.

Need a Will? Need a Probate Lawyer?

Please contact Patterson Bray at 901-372-5003 or email us here if you have questions about leaving a Will, Estate Planning, or Probate issues. We have a team of lawyers ready to help you.

February 15, 2016 In General

Justice Antonin Scalia: Quotes from Erin Shea

Our Thoughts on Justice Antonin Scalia

No doubt your news feed is filled with posts about the passing of United States Supreme Court Justice Antonin Scalia. We at Patterson Bray are saddened by the loss of Justice Scalia.

“I had the pleasure of hearing Justice Scalia speak at a luncheon in Memphis in 2013. I specifically remember being in awe of his wisdom in discussing the Constitution and the practice of law. It’s not every day that you are exposed to people like him, and that is a day I will always remember.” Erin Shea

Patterson Bray

8001 Centerview Parkway, Suite 103

Memphis, TN 38018

(901) 372-5003

February 4, 2016 In Business Litigation, Civil Litigation, Contracts, General

Insurance Claim Deadlines May be Shorter Than You Think

Suppose your insurance company denies your claim – whether for a fire loss, water damage, theft, or storm damage. How long do you have to file a lawsuit against the insurance company? Well, it may not be as long as you think, so be careful! The best thing you can do to make sure you preserve your insurance claim case is to consult with an insurance lawyer as soon as possible.

Insurance Policies Can Shorten Time for Filing Suit

While an insurance policy is a contract, and the “regular” deadline (a/k/a the statute of limitation) on contract claims in Tennessee is usually 6 years, your homeowners policy almost certainly has a much shorter “contractual statute of limitations” provision hidden in the fine print. In most cases, that shorter contractual deadline is only 1 year, and sometimes even shorter.

Immunity and Loss Settlement Periods in an Insurance Policy

An insurance policy usually provides for a period of immunity, or loss settlement period, during which you can’t sue the insurance company. This is to give the company time to investigate your claim before having to respond to it. Many policies provide for 45-60 day periods. In some cases, the immunity period may expire before they actually finish investigating your claim, or before you receive a payment or denial. Because of this, Tennessee case law provides that your time to file suit begins to run following the “accrual of the cause of action” against your insurance company.

What does “accrual of the cause of action” mean?

The “accrual of the cause of action” against the insurance company occurs – and thus the clock starts ticking on your deadline – when the immunity period expires, or when the insurance company denies your claim, whichever comes first.

In some cases, depending on what the policy says, an insurance company’s immunity period may be extended if it continues to actively investigate a claim and request information beyond the time stated in the policy. It is critical that you consult with an insurance attorney to determine the applicable deadlines in your insurance claim case.

Important Dates in an Insurance Claim

If you have an insurance claim, keep all of your claim-related papers in one place. Look at your policy and figure out the loss settlement period. If you don’t have a copy of your policy, ask for one. Keep any letters or emails you send to or receive from the insurance company. Record, be aware of, and keep up with the following dates:

Date of loss
Dates of claim payments
Dates of correspondence or phone conversations with the insurance company
Date of Denial

Don’t Wait Too Late to Involve an Insurance Lawyer

Determining insurance claim deadlines can be complicated, confusing, and depends on a number of factors. The insurance company understands how these time frames and deadlines work, and because adjusting insurance claims and reading insurance policies probably isn’t what you do for a living, you are at a disadvantage, especially in a complex or large loss insurance claim.

Call us sooner rather than later if you feel like your homeowners insurance claim is not being handled or paid properly.

Insurance policy language is confusing and it doesn’t always mean what it sounds like.
Your insurance adjuster is not your advocate.
We know insurance law. We will apply insurance policy language to your advantage.
We understand how insurance deadlines work.
You’ve paid your premiums for all of these years. Don’t lose out on a technicality.

Let us help you with your insurance claim case. Call Patterson Bray at 901-372-5003. We have offices in Memphis and Nashville. Don’t wait too late and lose your legal right to recover.

February 3, 2016 In Auto Accident, Business Litigation, Civil Litigation, Contracts, Estate Planning, General, Government, Medical Malpractice, Personal Injury

Lawsuit Deadlines: How long do I have to file a lawsuit in Tennessee?

Why are there statutes of limitation or lawsuit deadlines?

In Tennessee, there are lawsuit deadlines called “statutes of limitations,” so it is important to speak to a lawyer as soon as possible if you believe you may need to file a lawsuit. If you wait too late, you may lose your ability to seek a remedy or recovery in court.

Statutes of limitation serve a number of purposes. They promote stability in personal and business relationships; they prevent undue delay in filing lawsuits; they help to avoid uncertainty in pursuing and defending old claims; and they help to ensure that evidence is preserved and not lost due to the lapse of time, fading memories, or death of witnesses or parties.

What time limit applies to my case?

It depends on what kind of case you have. Even our courts sometimes struggle with which statute of limitation applies. Generally, a court looks to the “gravamen” of the complaint to determine which statute of limitation applies. Think of the “gravamen” as the “real purpose” or the “main point” of a lawsuit.

The Tennessee Supreme Court, in Benz-Elliott v. Barrett Enterprises said that when determining the gravamen of a complaint in order to decide which statute of limitation applies, “a court must first consider the legal basis of the claim and then consider the type of injuries for which damages are sought. This analysis is necessarily fact-intensive and requires a careful examination of the allegations of the complaint as to each claim for the types of injuries asserted and damages sought.”

You may have multiple legal theories and claims available to you in your case, but those claims could have different statutes of limitation that will affect your ability to recover. Because this analysis can be difficult, and it is to your advantage to include as many viable claims for recovery as possible, you should consult an attorney as soon as possible to discuss your case.

Statutes of Limitation in Tennessee for Common Claims

Below are statutes of limitation for common types of claims. There are others, so make sure and consult with an attorney to make sure you understand what time limit applies to your case.

Personal injury or wrongful death – 1 year
Property damage – 3 years
Conversion – 3 years
Breach of Contract – 6 years
Fraud/Misrepresentation – 3 years
Legal or medical malpractice – 1 year
Consumer Protection Act claims – 1 year
Sale of Goods Contract Claims – 4 years
Slander (spoken defamation) – 6 months
Libel (written defamation) – 1 year

Exceptions

There are certain exception to the statutes of limitation in Tennessee, but you should never assume an exception will apply to your case. For example, if a person took active steps to keep you from discovering an injury or claim (i.e., fraudulent concealment), then you may have additional time to file suit.

Courts will not allow you extra time to file suit simply because you did not know the applicable statute of limitation, or because you suffered an injury but didn’t find out the full facts or extent of your damage until later in time. Consult with an attorney as soon as you think you have a claim.

Don’t Lose Your Ability to Recover. Call us today.

Statutes of limitations and lawsuit deadlines can kill your case before it even starts. If you think you may have a legal claim against someone, please call us today at 901-372-5003 or email us here. Don’t wait too late and lose your ability to file suit or recover damages. Let the attorneys of Patterson Bray help you today.

February 1, 2016 In Business Litigation, Civil Litigation, Contracts, Estate Planning, General

I No Longer Want to Own Property with a Partner – How Do I Break Up?

Imagine you and a partner purchase a rental property in the hopes of generating additional income. Or perhaps you jointly inherit some property. You own the property as tenants in common, meaning that you each own a ½ interest. You’re each responsible for ½ the property taxes and expenses, as well as ½ of any rental income.

A few years later, you decide you want out. The income (when there is any) doesn’t seem worth the headache, and in some years, you even wind up paying more than your share of the expenses because your partner can’t seem to keep a steady day job. The two of you don’t get along anymore and you really just want out. What can you do?

The law in Tennessee does not require you to continue owning property jointly with another person if you don’t want to. If you can’t reach agreement with your partner about an exit plan, then you can file what is referred to as a partition lawsuit. There are two ways a Court can partition, and it depends on the particular facts of any given case. You will likely need an attorney to help you navigate the particular circumstances of your case.

Partition “in kind”

If a Court partitions a piece of land “in kind,” it means the property will be physically divided among the co-owners – almost quite literally splitting the baby. An example would be if two people owned a two acre tract of raw land and the Court simply divided it in half, giving each person one of the two acres.

Partition “by sale”

A partition “by sale” is exactly what it sounds like. The Court will order a sale of the property and then distribute the money proceeds to the parties. The Tennessee Code provides that a party is entitled to a partition by sale if either (1) the property is situated such that it can’t be divided, or (2) when it would be manifestly to the advantage of the parties for the property to be sold instead of divided. For example, a Court can’t split a house and give each person half, so it would instead order the house to be sold.

Expenses and Distribution of Income

What if you paid more than your share of expenses prior to filing the lawsuit, or what if you don’t think the rental income was distributed properly? In a partition lawsuit, you can ask the Court to award you that money in addition to what you are owed for your ownership interest. The key to recovering this additional money is proving the amount you are owed. Hopefully, you have kept, or can obtain, records concerning your income and expenses associated with the property. In some cases, you might be able to obtain financial records during the partition lawsuit that may help prove what you are owed.

Settlement or Partition Lawsuit? We can help.

If you currently own a piece of property with another person and you’ve decided you no longer want to continue in the joint ownership, we can help you fashion a solution. Filing a lawsuit should not be your first step in any dispute, but a partition action is an available legal tool if an agreement can’t be reached. We are experienced at helping our clients negotiate resolutions without the necessity of filing a lawsuit; however, because we are trial attorneys, we know our way around the courthouse and are prepared to file and handle a partition action on your behalf, if necessary. Please call us today at 901-372-5003 if we can help you.

January 26, 2016 In Business Litigation, Civil Litigation, Contracts, General

Get it in writing: A handshake probably won’t do.

The Dangers of Unwritten Agreements

You’ve heard it before: “If it’s not in writing, it doesn’t exist.” While that is not technically true, we don’t recommend entering into an unwritten agreement or contract of any significance. If it is important to you or to your business, get it in writing. Unwritten agreements, or oral contracts, can be legally enforceable in Tennessee in certain cases, but they are extremely difficult to prove in court.

Contracts Required to be in Writing

According to a legal rule called the “statute of frauds,” there are some agreements that are required to be in writing in Tennessee, including:

An agreement to pay someone else’s debt
An agreement concerning the sale of real property or land
A lease with a term longer than a year
A contract that can’t be performed or concluded in a year
A contract for the sale of goods for over $500.00

What Should a Contract Say?

Any contract should contain the essential terms of the agreement. The contract should clearly spell out what each party is going to do in plain language. Say what you mean, and mean what you say. If you don’t clearly spell out your intentions in a contract, then you run the risk of having a judge decide what your agreement means. You wouldn’t believe the number of cases in Tennessee where courts have had to interpret contract terms and agreements because of drafting failures on the front end. Do you really want a judge telling you what your contract says?

Be Smart: Hire an Attorney During Contract Negotiations

Contract law and litigation can be complicated, but it doesn’t have to be. One way to avoid disagreements, misunderstandings, and the high cost of contract litigation is to involve an experienced lawyer during contract negotiations. Many people believe that hiring a lawyer during contract negotiations will signal distrust of the other party, but that is not true in today’s business world. It is common, and usually expected, that attorneys will be involved. We are often successful in obtaining favorable contract language for our clients that they would have never known to request had they not involved an attorney. It is sometimes a matter of knowing what to ask for, and we can help you with that.

We are not only experienced in drafting and reviewing agreements and contracts, but we are trial attorneys. Call us today at 901-372-5003 if you need help with a contract or agreement.

January 20, 2016 In Auto Accident, Business Litigation, Civil Litigation, Contracts, General, Personal Injury

Can I Represent Myself in General Sessions Court?

Can you represent yourself in General Sessions Court?

Yes, you may always represent yourself in any court matter – it’s called proceeding pro se. However, you may only represent yourself.

If the true party in the case is actually a corporation or limited liability company (LLC) – even if you are the sole shareholder/owner/member – then you may not represent “yourself” because, technically-speaking, a business organization is a distinct legal entity separate and apart from you as a natural person. And unless you are a lawyer, you cannot represent another person or entity, or else you would be guilty of the unauthorized practice of law, and no Judge will allow that.

Should you represent yourself in General Sessions Court?

If you are the party in the case as an individual, or as a sole proprietorship, then you may always represent yourself. The real question, though, is should you? Many people believe General Sessions Court is a “small claims court” similar to the TV court shows where two parties stand at podiums and, with great drama, show or tell the Judge whatever they want. While it is true that General Sessions Court disputes are typically limited to smaller matters under $25,000, and further that any judgment can be appealed to Circuit Court, it would be a mistake to assume that General Sessions Court is somehow informal or easy.

In many cases, litigating in General Sessions Court is easier and less expensive than litigating in Circuit Court. However, General Sessions Court is serious. All parties, even those representing themselves, must follow the Rules of Court and the Tennessee Rules of Evidence and must observe the proper rules of courtroom decorum. You cannot simply tell or show the Judge whatever you want.

So the question really is this: do you know the Tennessee Rules of Evidence? Do you know what makes a piece of evidence objectionable? Do you know how to lay a proper foundation to get a document or a witness’s testimony admitted in evidence? Attorneys are trained to know the rules and to use them to their client’s advantage. You may have a perfectly winnable case and lose it because you do not know how to properly present evidence. We’ve seen it hundreds of times.

Many people say they cannot afford an attorney, while others simply don’t want to pay an attorney to handle something they believe they can handle themselves. However, is the potential of recovering nothing on your claim – or, conversely, subjecting yourself to a judgment that will be reported to creditors – preferable to paying an attorney fee?

**Helpful Resources for pro se litigants**

If you truly can’t afford to hire an attorney, here are a few resources you may find helpful:

Rules of General Sessions Court (Shelby County)

General Sessions Court–Civil Case Forms

Attorney of the Day Courthouse Project. Each Thursday Memphis Area Legal Services hosts an advice clinic at the Shelby County Courthouse at 140 Adams Avenue in Memphis. Volunteer attorneys meet with walk-in clients and provide advice and counsel. The clinic starts at 1:30 p.m. in Room 134 of the Courthouse.

Saturday Legal Clinics. These clinics, also hosted by Memphis Area Legal Services, operate on a first come, first served basis and provide opportunity for members of the community to meet with an attorney to discuss their legal issues. Volunteer attorneys provide advice, counsel, referrals. Memphis clinics are held the second Saturday of every month at the Benjamin Hooks Main Library, 3030 Poplar Avenue, starting at 9:30 a.m. until 12:30 p.m. Covington clinics are held on a Saturday every other month at First Presbyterian Church, 403 S. Main Street, starting at 10:30 a.m. until 1:30 p.m.

We practice in General Sessions Court.

The attorneys at Patterson Bray regularly practice in General Sessions Courts in Memphis, Shelby County. We know the rules and we will use them to effectively present your case or defense to the Judge. We represent both Plaintiffs and Defendants. If you have a pending General Sessions case, or if you are thinking of suing someone in General Sessions Court, and you’d like to talk to us about it, please call us at 901-372-5003.

January 13, 2016 In Business Litigation, Civil Litigation, Contracts, General

Can We Make Them Pay My Attorney Fees?

Can we make them pay my attorney fees? This is one of the most common questions we receive from our clients who find themselves involved in lawsuits. Unfortunately, the answer in most cases is no. Tennessee follows the “American Rule” which means that each party in a lawsuit pays their own attorney fees, no matter who wins. There are, however, exceptions to this rule. Two of the most common exceptions are as follows:
(1) Certain state and federal statutes allow the prevailing party to recover attorney fees. Examples: certain consumer protection, civil rights, and employment claims, etc.

(2) A contract provision where the parties to a contract have agreed that the prevailing party in a dispute will be entitled to recover attorney fees. Examples: leases, commercial contracts, collections, home sale contracts, etc.

Your attorney should examine the allegations in the lawsuit and any contracts that may apply to determine whether it is possible for you to recover your attorney fees. If you are a business person and you don’t have attorney fee provisions in your contracts, consider adding them. Here are some answers to additional questions we are frequently asked about attorney fees:

“This lawsuit is frivolous! Can we make them pay for all the money I have to spend dealing with this?” The standard for “frivolous” is pretty high. Even lawsuits that are eventually determined to have no merit are not necessarily frivolous. Very few cases are. Unless your case meets one of the exceptions, you probably can’t recover your attorney fees, even if you win.

“My contract provides for attorney fees. What are the chances I actually recover them?” If you are the prevailing party and you obtain a judgment, that judgment should include an award of what the judge deems a reasonable attorney fee. Your award may or may not equal what you actually paid your attorney. If your case is resolved through settlement, the attorney fee provision is often used as a negotiation point to increase the overall amount of money you recover.

“If the judge awards me an attorney fee of less than what I actually paid my lawyer, does my lawyer have to give my money back?” It depends on what your fee agreement is with your lawyer, but in most cases, the answer is probably no. Your fee agreement with your lawyer is independent of any judgment you may recover from the opposing party.

If you need help drafting an appropriate attorney fee provision for your contracts, or if you have a question about recovery of attorney fees in a lawsuit, please call us at 901-372-5003.

January 7, 2016 In Civil Litigation, General, Personal Injury

Tennessee Dog Bite Cases: No “Big Dog” Exception

Our firm handles Tennessee dog bite cases. In the recent case of Moore v. Gaut, the Tennessee Court of Appeals interpreted Tennessee’s 2007 dog bite statute and declined to create a “big dog exception” to the rule generally limiting a dog owner’s liability.

In 1914, the Tennessee Supreme Court ruled that a dog owner is only liable for injuries caused by a dog if the owner knew about the dog’s vicious tendencies. In fact, contrary to popular belief, there never has been any rule that an injured person prove that a dog previously bit someone before he could recover, although that fact would certainly help to show that a dog owner knew about the tendency of his dog. In 2007, the Tennessee General Assembly enacted Tenn. Code Ann. § 44-8-413 to address and tweak the law of injuries caused by dogs. That statute created a distinction between whether injuries by a dog bite occurred on or off the dog owner’s property, for example where a dog is running loose in a neighborhood. When a dog bite occurs on the dog owner’s property, the statute clearly retains and codifies the common law requirement that the injured person prove that the dog’s owner knew or should have known of the dog’s dangerous propensities. By comparison, when a dog is running loose, there is no such requirement.

So what’s the big deal about big dogs?

Nothing according to the Tennessee Court of Appeals. In Moore v. Gaut, the plaintiff came to repair a satellite dish on the defendant dog owner’s property. The defendant had a large Great Dane, which was kept in a fenced-in area of the yard. The plaintiff did not enter the fenced-in portion of the yard where the dog was; however, while the plaintiff was walking beside the fence, the dog jumped up, leaned over the fence, and bit the plaintiff’s face. In his defense, the dog owner filed a motion for summary judgment (i.e. dismissal) by submitting a sworn affidavit stating that the dog had never bitten or attacked anyone. Since the dog bite occurred on the dog owner’s property, the Court of Appeals agreed that the dog owner was not liable because the owner had been able to show that he had no knowledge or notice that the dog had ever bitten or attacked anyone. The plaintiff, unable to dispute that testimony, urged the Court of Appeals to adopt a “big dog exception” to the rule. Specifically, the plaintiff argued that because Great Danes are an extraordinarily large breed, that the dogs are naturally dangerous based on their size, weight, and strength and that this alone should place the owner on notice of a dangerous propensity.

The Court of Appeals didn’t bite, and declined to carve out an exception for big dogs.

Moral of the Story for Tennessee Dog Bite Cases

If you are bitten or injured by a dog on the dog owner’s property, it is critical to investigate and discover whether the owner knew of the dog’s vicious or dangerous tendencies. That does not necessarily mean that you have to prove that the dog has bitten or injured someone before, but rather some knowledge of the owner of mischievous or potentially rough or dangerous behavior that might cause an injury.

We Represent Dog Bite Victims.

We accept dog bite cases. Hopefully you will never be injured by a dog, but if you are, you need a good lawyer on your side because the proof you need isn’t likely to be the sort of thing the dog owner, or his insurance company, is likely to volunteer. Our team at Patterson Bray can help you properly investigate your claim and get the information you need in order to determine if your injury is compensable under Tennessee dog bite law. If you need help, call us at 901-372-5003.

November 16, 2015 In Business Litigation, Civil Litigation, Contracts, General

Construction Contract? Confirm Your Contractor is Properly Licensed First!

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

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

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

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

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

Before Your Enter Into a Construction Contract. . .

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

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

By: Chris Patterson

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office