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In some cases, procedural issues could result in barring a personal injury claim, but a skilled Tennessee premises liability attorney can advance an argument against dismissal.  In a January 30, 2018 case, the Court of Appeals of Tennessee reviewed whether a trial court had properly dismissed the plaintiff’s claims against some of the defendants that she had sued after suffering a fall in a grocery store.shopping carts

The plaintiff in the case had slipped on an unsecured mat at a supermarket and fell, sustaining injuries.  She alleged that the shopping cart and the unsecured mat caused her to trip, and she brought claims for ordinary negligence, premises liability, and negligence per se against four entities that owned or operated the store.  The plaintiff voluntarily dismissed without prejudice three of the four defendants a few months after bringing the lawsuit.  She subsequently filed an amended complaint against the one remaining defendant.  The defendant filed its answer, asserting as an affirmative defense the comparative fault of the other defendants who had been dismissed.   The plaintiff then filed a second amended complaint, renaming those defendants pursuant to TCA § 20-1-119.  The trial court ruled that the plaintiff’s claims were barred, and the plaintiff appealed.

The Tennessee statute at issue generally provides that in civil actions in which a defendant alleges the comparative fault of another person in its answer, and the plaintiff would otherwise be barred from bringing suit against the person by the statute of limitations, the plaintiff may amend the complaint to add the person as a defendant within 90 days.  The only question on appeal was whether the plaintiff in the case properly added the defendants to the second amended complaint pursuant to that statute, in light of the fact that the defendants were once parties to the original complaint.

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Agreeing to child custody changes outside of court may affect future proceedings to modify a court-ordered parenting plan.  A January 9, 2017 Tennessee child custody case before the Court of Appeals of Tennessee illustrates the complexities of this issue.  The appeal arose out of the modification of a parenting plan in a post-divorce action.family

The parents in the case had divorced in 2010, and a permanent parenting plan was adopted as part of the divorce decree.  Under that plan, the parents were awarded equal parenting time.  When the child started school in 2012, however, the parents informally modified the parenting schedule, since the parents were living in different counties.  Their arrangement provided the father with parenting time every other weekend, with holidays and school breaks split equally.  In 2015, the mother sought court approval of their informal arrangement by filing a petition to modify.  When the trial court adopted the mother’s proposed plan, the father appealed.

In Tennessee, the modification of an existing parenting plan requires the parent who seeks the change to prove that a material change of circumstances exists that affects the child’s best interest.  Unlike the process to switch the primary residential parent, the threshold to establish a material change of circumstances is very low when the court is merely changing a parenting schedule.  As a result, a material change of circumstances may include, but is not limited to, a failure to adhere to the parenting plan under the relevant statute.

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In some estate cases, disagreements may arise as to whether an asset is part of the estate to be distributed to the beneficiaries, or whether it is marital property belonging to the surviving spouse.  A previous blog post from 2016 highlighted this issue in a Tennessee estate litigation case before the Tennessee Court of Appeals.  The dispute centered around the ownership of a certificate of deposit that the decedent had purchased with funds from a joint checking account with his wife.  Since that post, the decision has been appealed and reviewed by the Supreme Court of Tennessee.  In a December 6, 2017 opinion, the court ultimately reversed the appeals court and overruled prior case law on the issue.writing check

During the administration of the decedent’s estate, his surviving wife filed a petition to designate a certificate of deposit, titled in the sole name of the decedent, as her separate marital property rather than part of the decedent’s estate, which had been left to his children of a prior marriage.  The decedent purchased the certificate of deposit with funds he withdrew from his and his wife’s joint bank account, designated with a right of survivorship.  The Court of Appeals ruled that the certificate of deposit belonged to the surviving spouse because the funds could be traced back to the joint account.

In Tennessee, a tenancy by the entirety is a form of property ownership unique to married persons.  Each spouse holds an interest in the entire property, rather than in undivided parts. Upon the death of one spouse, the survivor continues to own the whole property.  In most cases, one spouse cannot alone terminate the tenancy by transferring part of it to another party without the consent of the other spouse because it would destroy the other spouse’s ownership interest in the whole.  However, bank accounts are treated differently, and portions of a joint bank account may be unilaterally withdrawn without destroying the tenancy.

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If the death of a family member was caused by the negligence of another person, a personal representative may institute a Tennessee wrongful death action on behalf of the decedent’s beneficiaries.  Generally, the beneficiaries identified by statute receive the compensation obtained in a successful lawsuit.  However, there are some situations in which a statutory beneficiary may not recover.  In a December 27, 2017 opinion, the Supreme Court of Tennessee discussed how two statutes would apply to preclude a parent who owes child support arrearages from recovering proceeds in a wrongful death case.baby

In the case, the plaintiff and decedent were married and had a son in 2009.  The plaintiff left both of them soon after the child was born, but the spouses never divorced.  After the decedent died in 2010, the decedent’s mother was awarded custody of the child, and her brother adopted him in 2012.  The adoption order terminated the plaintiff’s parental rights, based on abandonment for failure to visit or support him.

In 2010, the plaintiff filed a wrongful death action as a surviving spouse.  At the time, however, the plaintiff owed child support for four other children, who were unrelated to the decedent.  The decedent’s mother intervened, arguing that the plaintiff was disqualified from bringing the action and sought to replace him in the lawsuit.  The trial court dismissed the plaintiff from the wrongful death case, based on Tennessee wrongful death and intestate succession statutes, and the subsequent appeals ensued.

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When alimony is awarded to one spouse after a Tennessee divorce, it is not uncommon for disputes to arise in the future, particularly if there is a change in circumstances. In a December 11, 2017 case, the Tennessee Court of Appeals considered whether the husband’s alimony obligation should be reduced, and whether, in light of his failure to pay that amount in full, he should be held in criminal contempt.empty pockets

The parties had divorced in 2007 after 22 years of marriage. Their settlement agreement, which was incorporated into the divorce decree, provided that the husband would pay the wife 50 percent of his gross income as alimony, until the death of one of the parties. In a separate agreement, the parties agreed that the husband would also pay half of his bonuses and that the remarriage of either party would not terminate the alimony obligation.

In 2015, the husband filed a petition to modify his alimony obligation, claiming that his income had not kept up with inflation since the time of the divorce. He argued that he could not afford to purchase a home and owed a significant amount of taxes, while the wife had a job making $20 per hour and had purchased a home. The wife opposed the petition and also asserted a counterclaim for an arrearage judgment, requesting the court hold the husband in contempt for alimony that he had failed to pay.

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An individual generally has the right to decide how his or her estate should be distributed.  In cases in which the decedent’s will is a product of undue influence, however, the court may set aside the will as invalid.  In a December 28, 2017 case, the Court of Appeals of Tennessee addressed the issue of undue influence in a challenge to the decedent’s handwritten will filed by her son.diary

The relationship between the decedent and her son had become strained after a disagreement just three months before her death, and they stopped speaking.  Prior to their disagreement, the son regularly visited his mother and spoke with her on the phone.  Around the time of their falling out in June 2015, the decedent hired a housekeeper.  The housekeeper also assisted the decedent by running errands, caring for her pets, buying groceries, cashing checks for her, and keeping her company.

In August 2015, the decedent was diagnosed with cancer.  She did not tell her son that she was ill.  The decedent asked the housekeeper if she would stay at her house until she died because she did not want to be alone.  In September, she contacted an estate attorney and requested that he draft a will leaving everything to her housekeeper because she did not want her son to have anything of hers.  Before the attorney had time to prepare the will, the decedent took a turn for the worse.  The attorney advised her to write a handwritten will, which she did in front of her nurse.  Shortly thereafter, the decedent passed away, and her will was submitted to probate.  The son filed a petition to set aside the will, arguing that it was invalid because the decedent did not have the capacity to make her will, and the housekeeper exerted undue influence over her.

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Having your legal claim heard in court is an important part of the civil justice system.  In a December 14, 2017 case before the Tennessee Court of Appeals, the plaintiff appealed a decision from a lower court granting summary judgment on her personal injury claim in favor of the defendant.  The decision would have prevented the plaintiff from recovering compensation from the defendant for the injuries she suffered on its property. Ultimately, however, the appeals court vacated the trial court’s order and allowed the case to proceed.bus stop sign

The plaintiff in the case was employed as a school bus driver by the local metro government (Metro). She parked her bus at the middle school to attend a mandatory training program. As she walked across the asphalt parking lot, she tripped on a buckled and cracked portion of the pavement and fell, sustaining injuries. The plaintiff filed an action alleging that Metro was negligent in maintaining the parking lot. Metro denied negligence and asserted that the action was controlled by the Governmental Tort Liability Act. The plaintiff then sought to amend her complaint to include allegations of negligence per se, asserting that Metro was in violation of several building codes.

Without addressing the plaintiff’s motion to amend, the trial court granted Metro’s motion for summary judgment. Specifically, the trial court found that, although the parking lot at issue was uneven due to buckled pavement and a 54-foot crack, it did not have to be absolutely smooth as long as it was not unreasonably dangerous. The trial court held that it was not and also concluded that the plaintiff should have been aware of the open and obvious condition of the pavement.

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During the administration of an estate in Tennessee, the decedent’s last will and testament, if there is one, will be submitted into probate.  An objection to the validity of the will is known as a will contest, and it may be brought by someone with legal standing.  In a November 22, 2017 Tennessee estate planning case, the issue before the Supreme Court of Tennessee was whether five of the decedent’s children, who were disinherited in two wills executed by the decedent, had standing to bring a will contest. The trial court dismissed the action for lack of standing, and the Court of Appeals affirmed.  The matter was then appealed to the Supreme Court of Tennessee.pens

The 2013 Will submitted into probate disinherited five of the decedent’s seven children.  Multiple prior wills also disinherited some or all of those five.  The disinherited children brought a will contest, alleging that the 2013 Will was invalid due to improper execution or attestation, lack of testamentary capacity, and fraud or undue influence.

In Tennessee, standing is a threshold issue in a will contest, and a contestant must show that he or she would be entitled to share in the decedent’s estate if the will were set aside, or if no will existed.  On appeal, the court noted that the contestants would clearly have standing if only the 2013 Will were at issue.  The question, however, was whether the contestants lacked standing because the 2013 Will and preceding wills disinherited them, based on the holdings of Tennessee cases Cowan v. Walker and Jennings v. Bridgeford.

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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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