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Some parents are unable to reach an out-of-court child custody agreement during a divorce to submit to the court.  When these situations turn into prolonged courtroom litigation, a Tennessee child custody attorney can work to protect the interests of their clients in court.  A November 22, 2017 post-divorce case before the Court of Appeals illustrates the complexity of child custody disputes.man in jacket

The parents in the case divorced in 2007 with two children.  The trial court had entered a permanent parenting plan designating the mother as the primary residential parent of the older son and the father as the primary residential parent of the younger son.  In 2010, the parties sought a modification of their parenting arrangement, and the trial court allowed a divorce referee to hear the matter.  In 2012, the referee filed a recommendation that the mother should be designated as the primary residential parent for both of the children, which was adopted by the trial court.  The appeals court subsequently vacated and remanded the matter for the trial court to conduct the proceedings.

During those proceedings, the parties both sought to be the younger child’s primary residential parent, since the older child had reached the age of majority.  At the hearing, the father repeatedly requested that the child, who was 13 at the time, be allowed to express his preference to the court regarding where he wanted to live.  The trial court refused the request and ultimately designated the mother as the child’s primary residential parent. The father filed another appeal.

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Proving the amount of damages arising out of a car accident, such as medical expenses, can become complicated when insurance coverage is involved.  A personal injury lawyer understands the proof necessary to establish these damages and can present evidence persuasively on your behalf.  Recently, a November 17, 2017 case before the Supreme Court of Tennessee provided further insight regarding the admissibility of evidence of insurance discounts to rebut the plaintiff’s proof of damages in a Tennessee car accident case.computer

The plaintiff in the case was seriously injured in an automobile accident with the defendant and suffered severe and permanent injuries.  She filed a lawsuit against the defendant to recover her past and future medical bills.  Before trial, the defendants filed a motion to prevent the plaintiff from presenting evidence of her full, undiscounted medical bills.  Due to the common practice of hospitals and medical providers billing patients for medical services in full and then accepting a discounted amount from the patient’s private insurance company, the undiscounted bills sent to the patient do not reflect what is actually being paid in the marketplace.  The defendants argued that the plaintiff’s undiscounted medical bills were, therefore, unreasonable by law and that the amount paid by the insurance company should be used instead.  The trial court granted the motion.  After the Court of Appeals reversed, the issue was taken up by the Supreme Court of Tennessee.

In Tennessee, a person who is injured by another person’s negligence may recover damages from the other person for all past, present, and prospective harm.  The burden is on the plaintiff to prove their damages.  At issue on appeal were the plaintiff’s past medical expenses.  For this type of award, the plaintiff must prove that the medical bills incurred because of the defendant’s negligence were both necessary and reasonable.

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The executor of an estate owes fiduciary duties to the beneficiaries and may be held responsible for failing to carry out these duties reasonably. The Court of Appeals of Tennessee addressed this type of dispute in a October 11, 2017 case. The decedent’s two sons were the sole beneficiaries of their mother’s estate. One of the sons was named as the executor in the mother’s will. The beneficiary-son filed a petition alleging that the executor-son breached his fiduciary duty. When the Probate Court found there was no breach of duty, the beneficiary appealed.gavel

In order to recover damages for a breach of fiduciary duty, the plaintiff must establish:  (1) a fiduciary relationship, (2) a breach of the resulting fiduciary duty, and (3) an injury to the plaintiff or a benefit to the defendant as a result of that breach. In Tennessee, the executor of an estate has a duty to deal with the beneficiaries in utmost good faith and exercise the same degree of diligence and caution that a reasonably prudent person would exercise in the management of their own affairs. If the executor acts reasonably and in good faith, he is shielded from liability if, in light of subsequent events, his judgment turned out to be wrong.

One of the specific duties, among others, of an executor is to collect the estate’s assets within a reasonable time, timely discharge his statutory obligations, and distribute the estate and close its administration as quickly as possible. The beneficiary first alleged that the executor breached his fiduciary duty by failing to make any monetary distributions until more than five years after the estate was opened.

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Dog bite cases typically involve specific laws that define the owner’s liability for injuries related to a dog bite or attack. The Court of Appeals discussed Tennessee’s dog bite statute in an October 19, 2017 opinion. The plaintiffs in the case filed a personal injury action against the owners of an Australian shepherd, which had bitten their son in the face during a visit to the owners’ home. The case reached the appeals court after the trial court entered summary judgment in favor of the defendants.dog

Under common law, an owner is liable for injuries inflicted by their animal if they know that the animal is accustomed or disposed to injuring people, even if it has never bitten anyone before.  In 2007, the Tennessee General Assembly enacted the dog bite statute, which provides that a dog owner is held strictly liable if the dog injures someone because the owner failed to exercise reasonable control over the dog or the dog is running at large, regardless of viciousness.  There is an exception, however, if the dog injures a person while that person is on the owner’s property.  In such cases, the plaintiff must prove that the owner knew or should have known of the dog’s dangerous propensities to recover damages for the injury.

The plaintiffs brought a claim based on strict liability under Tennessee’s dog bite statute, as well as a claim under common law negligence.  On appeal, the court held that the statute overrides a common law claim arising out of dog bites while on the owner’s property.  Accordingly, the plaintiffs could only pursue the statutory claim, which required proof that the defendants knew of the dog’s dangerous propensities.

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After a divorce has been finalized, a change in circumstances may cause new and unexpected disputes between the ex-spouses.  An October 25, 2017 case involving a post-divorce modification of a parenting plan illustrates the issues that may arise following major lifestyle changes.  The case came before the Court of Appeals of Tennessee after the trial court found a material change in circumstances existed and modified the parties’ existing parenting plan.  The mother appealed insofar as the trial court did not completely adopt her proposed plan, and the father argued there was no material change in circumstances.children

The parents in the case had one child during their marriage.  Their original parenting plan designated the mother as the primary residential parent but gave each parent equal parenting time and joint decision-making in the areas of education, non-emergency health care, religion, and extracurricular activities.  The mother subsequently filed a petition to modify the parenting plan shortly after the father had converted to Messianic Judaism.  The mother, a practicing Christian, alleged that their conflicting social and religious views concerning the child’s upbringing had led to ongoing disagreements regarding vaccinations, education, secular holidays, and other subjects.  The court awarded educational and non-emergency health care decision-making authority to the mother, as well as additional parenting time on religious and secular holidays.

In Tennessee, to modify a parenting plan, the court must first determine whether there has been a material change in circumstances since the entry of the existing parenting plan.  Secondly, the court applies statutorily enumerated factors to determine whether a modification of the parenting plan is in the best interest of the child.

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Changes to the law can have a significant effect on the way an estate is administered. In a recent Tennessee estate litigation case involving a will contest, the Court of Appeals determined whether a 2016 amendment to the Tennessee Execution of Wills Act applied to a will that was executed prior to the effective date of the statute. The beneficiary of the decedent’s will argued that it was valid under the new law, while the decedent’s heir-at-law, her father, contended that it was invalid because it did not meet the requirements under the law in effect at the time of her death in 2015. pen

The decedent in the case executed her Last Will and Testament in June 2015. She signed the bottom of each of the three pages of her will in the presence of two witnesses, and the witnesses signed the attestation affidavit in the presence of the decedent, each other, and a notary public. However, the witnesses failed to sign the will itself. The decedent passed away in September 2015.

In April 2016, Tennessee enacted an amendment providing that wills executed prior to July 1, 2016 are validly executed if the witness signatures are affixed to an affidavit, provided that the signatures are made contemporaneously with the testator’s signature, and the affidavit contains language meeting the requirements of the law. On appeal, the court found that the language of the amendment was straightforward and unambiguous, and it clearly was intended to provide relief for testators like the decedent, who believed they had executed a valid will prior to July 1, 2016, when the two witnesses duly executed the attestation affidavit at the same time as the will was executed by the testator, but the witnesses failed to sign the will itself.

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To win a Tennessee premises liability lawsuit, the plaintiff has the burden to provide sufficient evidence in support of the claim.  In some cases, the defendant will ask the court to decide the matter before trial in a motion for summary judgment.  In an August 29, 2017 case, the Court of Appeals of Tennessee decided whether a lower court properly granted a summary judgment motion in favor of the defendant, which was appealed by the plaintiff.concert

The plaintiff in the case was at the Bridgestone Arena attending a concert when she slipped in a pool of liquid near the concession area and fell.  As a result of the fall, she sustained injuries to her left knee, which required two surgeries.  The plaintiff filed a premises liability action against the owner and manager of the arena, alleging that they were negligent in failing to maintain the arena in a reasonably safe condition.  The defendants argued that they had no actual or constructive knowledge of the spill.

In order to prevail on a negligence claim, the plaintiff must prove the elements of duty, breach, injury, and causation.  In premises liability cases, the premises owner has a duty of reasonable care to prevent injuries to people lawfully on the property and to remove or warn against hidden, dangerous conditions of which the owner is aware or should be aware through due diligence.  Owners have no duty to remove or warn of dangerous conditions that were unknown or could not have been discovered by the owner.  Accordingly, if a third party created the dangerous condition, the plaintiff must also prove that the premises owner had actual knowledge or constructive notice that the dangerous condition existed before the plaintiff was injured.

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Property distribution in a Tennessee divorce case is often a contested issue between the parties, particularly when determining whether an asset is separate or marital property.  In a September 29, 2017 decision, the Court of Appeals of Tennessee reviewed a lower court’s order distributing the spouses’ property in their divorce case.  One of the wife’s arguments on appeal concerned the lower court’s categorization of a duplex as the husband’s separate property.houses

The spouses had been married for 13 years before their divorce in 2015.  The husband was employed as a real estate broker, and the wife was a teacher.  Four years prior to the marriage, the husband purchased a duplex rental property, secured by a mortgage.  The rental income generated from the duplex was used to pay the mortgage on it.  The husband had spent around $33,000 of his income during the marriage to remodel the duplex, and the taxes and insurance were paid from his income.  The wife’s name had never been on the deed to the property.  In 2004, the husband refinanced to borrow against the property, and the wife signed a deed of trust to relinquish any marital interest she had in the duplex.  The property was fully paid off in 2012.

Tennessee is a dual property state because its domestic relations law recognizes both marital property and separate property.  When a married couple seeks a divorce, the marital property must be divided equitably between them, without regard to fault on the part of either party.  Marital property means any property acquired by either or both spouses during the course of the marriage, and it may include an increase in the value of and income from separate property during the marriage if each party substantially contributed to its preservation and appreciation.

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Some issues brought up in Tennessee estate cases may seem unusual but are common enough that a skilled Tennessee estate litigation attorney will know how to approach them.  For example, in a September 28, 2017 case, family members of the decedent could not find her original will, although they knew she had executed it.  They filed a petition seeking to recognize and establish a copy of the lost will as the decedent’s last will and testament.  The trial court granted the petition, and the decedent’s heirs appealed.farm

The plaintiffs in the case were the decedent’s nephews by marriage.  They had assisted the decedent and her husband in maintaining their farm before their deaths.  When the decedent’s husband died in 2007, the plaintiffs visited the decedent every day, prepared her meals, and alternated spending nights with her because she didn’t want to be alone.  In 2007, the decedent executed a last will and testament bequeathing her personal property to her sister, her jewelry to her nieces, and the remainder of her estate, which included the farm and machinery, to the plaintiffs.  The will was last seen in 2012 when the decedent showed it to her sister and returned it to the safe in her home, but it could not be found after her death.

In Tennessee, the long-standing presumption is that if a will is traced into the hands of the testator and not found after her death, the testator canceled or revoked it.  The presumption can be overcome with adequate proof, which Tennessee courts have defined as clear and convincing evidence.  Proponents of the lost will can overcome the presumption of revocation by showing that the testator did not have control of the will after its execution, that she had lost testamentary capacity for a period before her death, and that the will was in existence at the time the mental alienation occurred.

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In order to succeed in a Tennessee wrongful death action, the plaintiff must prove the elements of duty, breach, causation, and injury. In some cases, the court will decide whether it’s possible for the plaintiff to establish those elements as a matter of law. In a September 15, 2017 case, the Court of Appeals of Tennessee considered whether the estate of a woman who committed suicide could bring a negligence action against a defendant based on the defendant’s alleged acts of displaying and failing to properly store and prevent accessibility to his gun, with which the decedent ultimately committed suicide.gun

The defendant and the decedent met at a hospital, where the defendant was employed as a psychiatrist and the decedent worked as a nurse.  They began dating, which led to the decedent’s divorce from her husband.  The decedent subsequently moved into the defendant’s residence.  The decedent told the defendant that she started treatment for depression and was on medication.  After the decedent suffered an overdose, she was involuntarily committed to a psychiatric hospital for a suicide attempt.  The decedent confided to the defendant that she had been contemplating suicide, and the defendant observed the decedent’s crying spells a couple times a week.  The defendant broke off his relationship with the decedent, and she moved out, although they continued seeing each other.  The defendant purchased a gun, which he kept in an unlocked china cabinet, and showed it to the decedent.  The defendant allowed the decedent to stay in his house while he was out of town.  When he returned, he found the decedent dead on his bed with a self-inflicted gunshot wound.

The concept of duty is an essential element in all negligence claims.  In Tennessee, the duty owed to the plaintiff by the defendant in all cases is that of reasonable care under all of the circumstances.  When the existence of a particular duty is not a given, courts will impose a duty of care if a defendant’s conduct poses an unreasonable and foreseeable risk of harm to another person.  A duty arises when the foreseeability of the risk and the gravity of the harm outweigh the burden imposed on the defendant to engage in alternative conduct.

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