Step-parent Adoption 101

   Blended families are sometimes hard to navigate. The goal of the courts is to keep families in tact. However, that is not always possible or the best scenario. Some biological parents make the decision that it would be in the best interest of the child for him or her to be adopted by their step-parent. In Tennessee, children may be adopted by a step-parent in a couple of ways.

  

  A biological parent's legal rights regarding and claim to a minor child must be terminated before a child may be adopted. This may be done involuntarily by a court or the parent may consent to the termination. In the case of involuntary termination, the court will look at whether the parent has abandoned the child, whether the parent has provided for the child, and whether the parent has established a relationship with the child, among other factors. In the case of consent to termination, the biological parent simply has to be included in the petition for adoption as a co-petitioner, along with the other biological parent and the step-parent. After all petitioners sign the petition in front of a notary, the petition may be filed with the court and a court date may be set.

   

   It is important for all parties to understand the results of termination of parental rights. The parent whose rights are being terminated will not be responsible for future support of the child, but will be responsible for any child support arrears owed before the adoption is finalized by a judge. The parent will also have no claim in the future to any property, inheritance, or benefits of the child. Alternatively, the child will no longer be entitled to any claim to any property, inheritance, or benefits of the parent.

   

   Once the adoption is finalized, the step-parent will be responsible for the child until the age of 18. At the request of the parties and upon approval of court, the child's last name may be changed to the last name of the step-parent.

   

   Step-parent adoption is a fairly easy process. In Tennessee, the required home study, 6 month waiting period and adopting parent class may be waived by the courts. If you are considering a step-parent adoption, contact us for help. We would be happy to assist you in the process. (615) 890-2399

Implied Consent: Do You Know Your Rights?

   Consent is another word for agree. Have you ever had an officer ask if you "consent" to allowing them to do a search? Are you aware that without having probable cause to believe an offense was committed, officers are not allowed to conduct a search without a search warrant. As usual, there is an exception to this law. It is called the good faith exception. In Tennessee, officers are allowed to collect evidence that may otherwise be found to be inadmissible in court if they believed in good faith that all of the circumstances gave them probable cause to do so. 

    There are two types of consent: actual and implied. Actual consent is when you expressly give consent, either orally or by writing. Implied consent is when it appears from all of the circumstances that consent has been given. Tennessee has a statute (55-10-406) that allows an officer of the law to order a test to check the alcohol or drug levels in a driver's blood if they have reasonable grounds to believe the person was driving while under the influence. The officer must explain to the driver the consequences for refusing to allow such a test. The minimum penalty of refusing is loss of license for one year. If the driver still refuses to give actual consent to the test, the driver can be charged under this statute and the test can still be administered.

   Recently, attorney Ashley L. Jackson had the privilege of hearing oral arguments on this issue in front of the Tennessee Supreme Court in the case of State of TN v. Corrin Reynolds. Essentially, the issue in this case is whether the good faith exception trumps someone's constitutional rights to be free of illegal search and seizure. Does a blood test for drugs or alcohol count as a search? And, if so, is a warrant required to conduct that type of search? 

   Until the Court makes a decision, Tennessee drivers are considered to have given implied consent to a blood test when they drive on Tennessee roads, so please understand your rights. If you refuse to consent to a test after you have been made aware of the consequences of refusal, you could be charged under the implied consent statute. 

Check out this article from the Tennessean for more coverage on this case.
http://www.tennessean.com/story/news/2015/09/30/justices-weigh-good-faith-exception/73039504/

Contact the Law Office of Joe M. Brandon, Jr. and Ashley L. Jackson to learn more about this issue. (615) 890-2399

Why Am I Required to Take a Parenting Class to Get a Divorce?

Everyone going through a divorce in Rutherford County, Tennessee is mandated to take a court-approved parenting class if you have minor children at the time of your divorce. According to www.tn.gov, “This class or series of classes gives parents the information necessary to deal with their children and with each other during and after the divorce process. These seminars are meant to help the divorcing family through the traumas of divorce without putting more stress on the parties and their children.” The class includes topics related to children and family such as counseling; an overview of the Court, mediation, child support, and parenting plan process; suggested ways to help children of various ages cope with divorce; and grief and loss stages that everyone involved may experience through the process. In Rutherford and Cannon Counties, the class is a one-time session of four hours. This class must be completed within sixty (60) days of your divorce being finalized, BUT the sooner you can take the class, the better off everyone will be (and maybe even save you money in the long run.)

There are two known places to attend class in Rutherford County, and one agency offers a reduced rate class in Brentwood, TN. The Family Center offers TransParenting, a nationally recognized program that is conducted by Master’s level mental health professionals. The fee for TransParenting is $45 in the Murfreesboro location, or the reduced rate location in Brentwood is $25. Several dates are available throughout the month, but classes there fill up quickly, so you must register and pay well in advance. Divorcing or separating parents must attend separate seminars, regardless of how congenial your case may be. They accept cash, money orders, and credit cards, but no checks. You may register and pay at www.familycentertn.org/sign-up or by calling (615) 890-4673. The office is located at 115 Heritage Park Drive, Murfreesboro, TN 37129. If you want to attend the reduced- rate class, know that spaces are limited to those with demonstrated financial need. You must contact Julia Todd at (615) 324-7526 or jtodd@bumc.net to register and pay. This class is held at Brentwood United Methodist Church, 309 Franklin Road, Brentwood, TN 37027.

The next provider in Murfreesboro is Lifebridge, and registration can be completed at www.lifebridgetn.com/register/events. They offer one or two classes per month in the Murfreesboro area, and locations vary. Space is limited to eight participants and registration is $50. For all locations, please do not bring your children, as no childcare is provided. You may bring drinks and snacks- there are no vending machines, but you will be given breaks throughout the course. Please bring your docket number in case that is needed for your certificate of completion. You will notice that classes are offered all over the mid-state area, with many in Davidson County, if that location is more convenient. Even if your divorce is in Rutherford/ Cannon, you are allowed to take the course outside of county, so long as it’s a court-approved course.

Positive Change in Irreconcilable Differences Divorces

                                         

 The 16th Judicial District recently released an Administrative Order regarding final hearings in Irreconcilable Differences with minor children divorces. Previously, only parties to Irreconcilable Differences divorces with no minor children could waive their right to a final hearing and request a divorce through an affidavit to the Court. However, this new administrative order has extended that waiver to parties to Irreconcilable Differences divorces with minor children.

  The goal of this new order is to eliminate unjustifiable expense and delay by waiving the requirement of a Court hearing. The following conditions must be satisfied in order to waive an Irreconcilable Differences divorce with minor children hearing:

1. The attorney or pro se litigant shall file the following documents with the Court Clerk's office, along with the required filing fee:
• the Complaint
• the executed Marital Dissolution Agreement;
• the executed Permanent Parenting Plan
• the Child Support Worksheet
• Certificates demonstrating both parties' completion of the parenting class
• Affidavits of both parties containing the divorce information
• the proposed Final Decree of Divorce
2. Upon receipt of all documents, and after the expiration of the mandated 90-day waiting period, the Court Clerk shall forward the file to the Divorce Coordinator for review.
3. If the Divorce Coordinator is satisfied with the Parenting Plan, Child Support Worksheet and parenting class certificates, she shall forward the file to the Judge or Chancellor, who may then sign the documents or require a Court hearing. 
4. Either party may still request that a Court hearing be held in any divorce case.
5. Court hearings shall be required in all cases where a deviation from the Child Support Guidelines is requested.

  At Brandon Law Group, we sincerely believe this new effort on the behalf of the 16th Judicial District will better allow both parties to move forward. If you have any questions on this new Order, please contact us at (615) 890-2399.

Social Media, Search Warrants and Your Case

           

  Are you aware that what you post on social media may be used against you in your case? Here is a link to an article regarding a recent NY Court of Appeals decision on whether Facebook must give access to their users' posts. The Court decided Facebook must comply with requests to access user data. 

http://nyti.ms/1HHlA1E

  At Brandon Law Group, we are ready to advise you on how your social media posts and information may specifically affect your case. Call us now to schedule a free consultation. (615) 890-2399

Keys to Finding the Right Personal Injury Lawyer

Like any other types of law, you shouldn’t take the easy path when finding a personal injury lawyer. The same is true with a personal injury claim. Experience matters, no matter the situation.

When searching for a personal injury lawyer in Murfreesboro, as always, find a recommendation from a circle of friends or those who have been in a similar situation in the past.

After you have a short list and searched websites for personal injury lawyers, ask a few questions to help determine their credibility and start the process.

• How many years of experience does the lawyer have?
• How often does the lawyer participate in personal injury cases?
• Who does the lawyer represent in most cases? Is it the plaintiff or defendant?

After this process, you should have a good idea in mind of the right candidate to correspond with your situation. From here, you should set up an appointment and see how you connect with the attorney.

Personality is vital to the relationship and you want someone who will go to bat for you and also keep you updated on the progress.

It’s also a good move to check the reputation of the attorney and see how they deal with insurance companies. They should have the know-how to negotiate and reach a fair settlement. Many cases settle before trial, so this step is a pivotal one.

In the same regard, make sure your personal injury lawyer is unbiased and truly cares about your case. You want an attorney who will devote proper time to your situation.

Finding the right match is an essential part of a personal injury case. If you have questions, feel free to contact our office.

Understanding Criminal Law: Retirement and Dismissal

If you have a criminal case in Rutherford County, sometimes either a retirement or a dismissal may be obtained. The laws surrounding both can be confusing, so hiring an experienced criminal lawyer to navigate the system is often an advantage. Below is a brief summary of the two.

A dismissal is exactly what it sounds like; your case is dismissed in its entirety. In Rutherford County Criminal Courts, it is rare to walk away with an outright dismissal. If a Murfreesboro Lawyer suggests otherwise, that is not true. However, an outright dismissal does happen on occasion, and having a local lawyer fighting on your behalf is a good step in that direction.

A retirement, on the other hand, is a continuance with a dismissal at the end. Once the criminal case has been continued for some time, it is dismissed, as if it never occurred. A retirement may be conditioned upon certain factors being met. Further, at the end of a retirement, when the case is dismissed, a person is eligible to have their criminal record expunged.

The difference between a retirement and a dismissal in Murfreesboro Courts is that a dismissal dismisses your case right away, while a retirement dismisses your case after a set period of time. It is important to note that a retirement may also be conditioned upon certain requirements, including community service, probation, payment of fines, or other tasks, which must be completed before your case is dismissed.

It is possible to have a criminal case in Rutherford County and get a retirement, or even a dismissal. However, these results depend upon the facts of each case. Consulting an experienced local lawyer, who knows his way around the Murfreesboro Criminal Courts, is a good start in that direction.

What Do Family Lawyers Do? Three Things to Know

We are often asked what do family lawyers do? It’s a fair question, because family law has a wide range of legal issues to handle. As family lawyers in Murfreesboro, we see and interact with people that are hurting, lack clarity, and have a lot of questions. Here are three things that our local family lawyers do on a regular basis.

Identify Your NeedsAs family lawyers, our first goal is to identify your wants and needs. The way we do that is to listen first. This may seem cliché; however, it is only through listening that an experienced family lawyer can truly assist clients in getting the legal help they need.

Create a Game PlanThe second thing we do is help you come up with a game plan, or outline if you will, that will assist you in obtaining your goals. Frequently, we compare clients to a fish in a fish bowl under a running faucet. The client doesn’t really know if they are coming or going; they just know that water is pouring in. Things that seem abundantly clear if you are on the outside all of the sudden are not so clear when you are going through such turmoil and uncertainty regarding your children and money.

Put Clients in Position to WinThe third thing we do is help you get in a position to obtain your goals. Sometimes, our job is to get clients into the correct programs or treatment options. Sometimes, our job is to tell someone they must abandon their extra-marital relationship. Sometimes, our job is to get clients into rehabilitation. Our job always involves collecting the right information and using it in the most powerful way for our clients.

At minimum, you will leave our office in a way that you are educated from all sides about your family law issue and in a much better position to make educated, rational decisions.

State v. Madden: The Effect of Judges on Social Media and the Constitutionality of Jury Questions

 

On April 17, 2013, Joe Brandon, Jr. filed an appellate brief with the Tennessee Court of Criminal Appeals in  State of Tennessee v. Shanterrica Madden, the criminal case arising out of the unfortunate death of Tina Stewart, a star basketball player for the Middle Tennessee State University women's basketball team.
On appeal, Joe is asking the court to grant Ms. Madden a new trial primarily based on two contentions: (1) that the trial judge should have recused himself (removed himself from the case) due to his connections to Middle Tennessee State University and the District Attorney's Office on social media; and (2) that juror questions, in their entirety and in their imposition at trial, denied Ms. Madden her constitutional right to a fair trial. Click Here to read the brief in its entirety.
Both of these issues, judges on social media and the effects of jury questions, may eventually draw national attention, as different courts in different jurisdictions have reached different conclusions on each. For the reader, here is a brief summary of why each issue is important and the position that Joe Brandon, Jr. maintains on appeal in State v. Madden.
Judges on Social Media
During the Madden trial, Joe Brandon, Jr. filed a motion for the trial judge to recuse himself (remove himself from the trial) in part based on the friends and activities on the trial judge's personal Facebook page. Joe and the trial judge exchanged words over the extent to which the trial judge was connected with Middle Tennessee State University and its women's basketball program, as well as the extent to which the trial judge was connected to various local attorneys and prosecutors. In the end, the trial judge denied the motion to recuse himself and presided over the trial.
The Madden trial took place in May 2012. In that case, there were several heated exchanges surrounding the trial judge's use of Facebook and his personal Facebook account. In October 2012, months after Ms. Madden was found guilty of second degree murder, the Tennessee  Judicial Ethics Committee issued an Advisory Opinion, No. 12-01, which specifically addressed "whether  judges may utilize social media such as Facebook…and, if so, the extent to which they may participate."
The laws, regulations, opinions, and comments on judges and social media vary wildly throughout the country, but most stop short of an outright prohibition on social media. Instead, most laws merely discourage judge's using social media or emphasize that judge's must balance the risks and rewards of using such platforms.
On appeal, Joe Brandon, Jr. is asking the Tennessee Court of Criminal Appeals to evaluate the Tennessee laws on judges and social media and come to a conclusion on its allowance in the state; thereby achieving uniformity in policies throughout the state.
One of the most recent pieces of scholarship on this issue comes from recent law graduate Daniel Smith in the Case Western Reserve Journal of Law, Technology, & the Internet. Mr. Smith eloquently describes the inherent conflict between judges using social media and the judges' purported appearance of impropriety.

Continuing to allow Facebook use places judicial ethics jurisprudence on a convoluted path that may last for decades. Even if the ABA refrained from discouraging Facebook use, several states have already voiced concerns about judges and social networking. History suggests it is only a matter of time before judges begin facing disciplinary action for their Facebook usage. Courts may need years to develop the appropriate appearance of impropriety standard in the social-networking context. Furthermore, without clarity and direction, the courts will continue to struggle to create a doctrine that is workable for the countless scenarios that may arise. The only reasons courts have suffered through such a process with real-world relationships is because, as a practical and constitutional matter, states cannot ban judges from socializing. We do not have to go down the same road with Facebook use. If the ABA makes it clear that being a member of social networking sites can create ethical problems under the appearance of impropriety standard, the vast majority of judges would close their Facebook accounts upon taking judicial office. As a result, we would have a judiciary that is both actually and apparently less biased. We do not need another century of uncertainty surrounding the appearance of impropriety. The ABA should take this opportunity to resolve this issue immediately.

see Daniel Smith, "When Everyone is the Judge's Pal: Facebook Friendship and the Appearance of Impropriety Standard," 3 Case Western Reserve Journal of Law, Technology, & the Internet 66 (March 2012). Available at http://law.case.edu/journals/JOLTI/Documents/Smith%20-%20new.pdf.
Juror Questions
During the Madden trial, Joe Brandon, Jr. filed a Motion to Object to Juror Questioning. On numerous occasions during the trial, the jury was allowed to ask questions of various witnesses. Joe renewed his objection so often that at one point the trial judge snapped "I got that the first twenty times.... I'll put it on the record that Mr. Brandon objects to every single question asked by every juror in every situation" (from the record of proceedings, XVI,230,8-231,14).
Tennessee Rule of Criminal Procedure 24.1(c) permits jurors to ask questions, in the trial court’s discretion.  Questions must be in writing, anonymous, and submitted at the end of a witness’ testimony. The Advisory Comment to Rule 24.1(c) indicates that the purpose of the practice is to “assist jurors in their understanding of evidence and to make them feel more involved in the trial process. Most jurisdictions allow jurors to ask questions, but this is misleading because the practice is usually discouraged. The United States Court of Appeals for the Sixth Circuit has weighed in on the issue, opining that juror questions are within the trial judge's discretion, but should be discouraged. 

Some states have outright banned juror questions. The Mississippi Supreme Court, for example, observed that the most obvious problem with juror questions is that the jurors are not familiar with rules of evidence. In Minnesota v. Costello, 646 N.W.2d 204, 213 (Minn. 2002), the Minnesota Supreme Court flatly stated:

In sum, our concern about allowing jurors to question witnesses is two-fold.  First, the opportunity to pose questions may prevent jurors from keeping an open mind until all the evidence has been presented.  Second, the opportunity to pose questions may upset the burden of production and persuasion in a criminal trial.  We believe the passive-juror system minimizes these problems because jurors are (1) not enticed to form hypotheses or judgments about missing testimony; and are (2) prevented from affecting the production of evidence.

On appeal, Joe Brandon, Jr. is asking the Tennessee Court of Criminal Appeals to recognize the constitutional implications of allowing jurors to question witnesses. Jurors are not lawyers. Jurors are not investigators. Jurors are supposed to be impartial fact finders. To encourage the jury to investigate and ask questions distracts them from their true purpose, which is to be the ultimate fact finder in the criminal justice system.

I Have Been Served With Divorce Papers. What Are They?!

What do I do if I am served with divorce papers and what does that mean?
I see varying responses from individuals who are served with divorce papers. These responses range from complete devastation to absolute elation. If you have been served with divorce papers, I am writing this to help you understand the process that you are about to enter, whether you wish to or not.

What Are All These Papers?
If you have just received divorce papers, you probably have a stack of documents and no idea what you are looking at. In truth, any time you are served, the opposing party can give you a variety of papers. However, in general, there are a set group of documents that you receive when served with divorce papers.

Complaint
A divorce case begins with the filing of a Complaint for Divorce. A Complaint puts the recipient on notice of the pending litigation and binds the recipient to respond or risk the filing party receiving and/or being granted whatever relief they are seeking.
In Tennessee, a Complaint must allege a number of things, including grounds for divorce. Grounds are numerous and vary wildly by state, but common grounds in Tennessee include adultery (he cheated on me), abandonment (he left me), irreconcilable differences (this marriage is broken beyond repair), and a catch-all grounds called “inappropriate marital conduct” (he has acted inappropriate towards me).
If the divorce is uncontested, meaning that the parties agree to divorce and agree to a distribution of property and/or parenting time, then the Complaint only needs the grounds of irreconcilable differences. Irreconcilable differences is the court’s way of saying that the parties agree that the marriage is beyond repair. However, the problem with an irreconcilable differences divorce is that a court cannot grant such a divorce without the agreement of both parties.
If one party wants a divorce and wants to force the action on another party, it must file a contested divorce, which includes a grounds for divorce such as inappropriate marital conduct. Inappropriate Marital Conduct is the most common contested grounds alleged in contested divorces. This is likely because every spouse who has settled on divorce usually believes that the other party has acted inappropriately.
If you are holding a Complaint, make sure to look for what grounds are listed. Most likely, the other party has filed several grounds against you. Understanding the grounds upon which your divorce is based is an important starting point to understanding the entire process.

Summons
When you are served with the Complaint for Divorce, you will also receive a Summons, which puts you on notice that you have thirty (30) days to file an Answer to the Complaint. If you fail to file an Answer within thirty (30) days of the day you are served, the other party can file a Motion for Default and the Court may award the other party whatever relief they are asking for.

Restraining OrderWhen you are served with the Complaint for Divorce and Summons, you will also receive a statutory Restraining Order from the Court, which effectively prevents you from engaging in certain behavior. There are a number of actions that each party is prohibited from doing. For a detailed listing of the statutory Restraining Order in Tennessee, see T.C.A. § 36-4-106.
The most common restriction regarding property and debts is that each party is prohibited from making expenditures other than those normally made according to the parties standard of living. Additionally, each party is prohibited from voluntarily canceling, modifying, and/or terminating insurance policies, including but not limited to life, health, disability, homeowners, renters and automobile.
The most common restriction regarding minor children is that each party is prohibited from harassing, threatening, assaulting or abusing the other party and is also prohibited from making disparaging remarks about the other party to or in the presence of the parties’ minor children. Additionally, each party is prohibited from relocating the children more than one hundred (100) miles from the marital residence.

What Is My Next Move?
If you have received divorce papers, your next move depends on what you want out of the process. If you agree to the divorce and want to proceed in an uncontested divorce, then your path is much more peaceful than if you disagree with every grounds for divorce listed in the Complaint. In a typical divorce action, the following are standard options when served with divorce papers.

File an Answer
As stated above, the recipient of a Summons and Complaint is given thirty (30) days to file an Answer to the Complaint. An Answer, quite simply, is a response to the Complaint. The party writing an Answer responds to each paragraph of the Complaint received.
In responding to the Complaint, the party writing an Answer must respond to every allegation in the Complaint with one of the following responses: (1) admit; (2) deny; (3) deny for lack of sufficient information upon which to admit or deny. A party can also mix those responses. For example, a party can admit in part and deny in part or admit in part and deny the remainder for lack of sufficient information upon which to admit or deny.

File a Counter Complaint
When you file an Answer, you also have the option of filing a Counter Complaint. By filing only an Answer, you have responded to the party who filed the action. By filing an Answer and a Counter Complaint, you have responded to the party who filed the action and also leveled the playing field from a pleadings standpoint.
In a Counter Complaint, a party can set forth the relief it requests and also the facts upon which such relief is requested. Without filing a Counter Complaint, the only relief that is requested of the Court is the relief requested in the Complaint for Divorce by the party who filed the action.

Can’t We Just Get an Agreed Divorce?
Often, a potential client sits in my office and explains how him and his wife agree that they need a divorce and that they agree on almost everything. The key word in such a conversation is almost.
In an agreed divorce, which is filed under irreconcilable differences grounds, the parties must agree on the division of all property, both real and personal, which can be incorporated into a written and signed Marital Dissolution Agreement (MDA). An MDA is a written contract entered into by both parties which sets forth, in detail, who receives what marital property. If the parties cannot agree on the distribution of all property, then the Court would have to enter an Order to dispose of the property, and an agreed divorce may not work.
In an agreed divorce, the parties must also agree on the allocation of parenting time if the parties have minor children, which can be incorporated into a written and signed Parenting Plan. A Parenting Plan is a written contract entered into by both parties which sets forth, in detail, which party the minor children will live with and what visitation the non-residential parent will receive. Similar to the MDA, if the parties cannot agree on the allocation of parenting time, then the Court would have to enter an Order assigning parenting time to each party, thereby negating the likelihood of an agreed divorce.
In short, unless the parties agree on everything in the divorce, namely to the distribution of property and to the allocation of parenting time, then an agreed divorce may not be the proper route for them to pursue. It is important to note that, even if the parties agree to the divorce, one attorney cannot represent both parties. Instead, an attorney can represent one party, draft the required paperwork, and deliver the required paperwork to the opposing party. However, the attorney cannot provide any legal advice or services to the opposing party due to his attorney-client relationship with the party who filed for divorce.

Conclusion
If you have received divorce papers, but do not know what you are currently holding in your hands, I hope this article has helped you understand the various documents and obstacles in your future.
For more information on the divorce process in Rutherford County, Tennessee, which comes after you have been served with divorce papers, see my Legal Guide on Avvo.com.

In Tennessee, What Happens if a Limb from Your Neighbor's Tree Falls Onto Your Property?

It's spring time in Tennessee and another storm passes through town. As the sun peeks through your windows, you walk outside. Taking in the sunshine, you notice that your brand new car has a large tree limb stuck right through the middle of the windshield. Panicked, you look around to find out where the tree limb came from. You discover that your neighbor’s tree is missing several branches and limbs and that, sure enough, one of those limbs is wedged in your windshield.
You knock on your neighbor’s door so the two of you can discuss the situation like adults, but your neighbor tells you to go fly a kite. What should you do next?
There are several questions woven into this set of facts. Does it matter if the tree is dead or alive? Does it matter if your neighbor knew whether the tree was dead or alive? Does it matter if the tree was entirely on your neighbor’s property or whether the tree partially encroached on your property?
These questions have been addressed in some way or another by Tennessee Appellate Courts. In the recent case of Russell v. Claridy, 2013 WL 655235, a tree from a neighbor’s property fell and caused damage to Ms. Cindy Russell’s 2005 Dodge Caravan.
The Russell Court addressed the question of whether a landowner is liable for damage caused by a healthy tree on his property that is felled by an act of God. The Court found that the defendant’s tree was healthy prior to the thunderstorm that caused it to fall. Because the Court found no evidence that the tree encroached on Ms. Russell’s property and no evidence that the tree “presented an imminent danger of harm to her property prior to the storm that caused the tree to fall,” the Court held that the neighbor was not liable for damage caused by the tree because he was not on notice that the tree might fall.
It appears from this decision that if a healthy tree or limb from your neighbor’s property, which does not encroach on your property, causes damage to your property, then your neighbor may not be responsible for the damage because your neighbor was not on notice that the tree might fall.
However, if your neighbor’s tree is dead or decaying and your neighbor knows or has reason to know of that condition, then your neighbor may be responsible for any damage that the tree causes to your property. Cases involving dead or decaying trees are analyzed under ordinary negligence principles, in which liability often turns on whether landowner was on notice that the tree might fall.
In Lane v. Curry, 92 S.W.3d 355 (Tenn. 2002), the plaintiff, Ms. Gloria Lane owned a house located next door to a house owned by the defendant, W.J. Curry & Sons. The defendant had three large and healthy oak trees located on its property near Ms. Lane’s home. The trees were much taller than either house houses and had limbs that hung over Ms. Lane’s house. At some point, a large limb from one of the defendant's trees located between the parties' houses broke off and fell through the plaintiff's roof, attic, and kitchen ceiling, causing rainwater to leak into the interior of her home.
The Lane Court addressed the question of whether an individual is entitled to cut a neighbor’s tree limbs if they are encroaching on your property and whether the neighbor is liable for any damage caused by trees that encroached on your property. Historically, Tennessee has followed the “self help” theory, which allows a property owner to remove any trees or limbs that encroach on his property. In Lane, however, the Court adopted “the Hawaii approach,” which holds that living trees and plants, which are ordinarily not nuisances, can become nuisances when they either cause actual harm or pose an imminent danger of actual harm to neighboring property. When such trees become nuisances, other landowners can seek appropriate remedies. The Court made sure to clarify, however, that it did not change existing case law that a landowner may, at his own expense, cut away encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance.
It appears from this decision that if a tree or limb from your neighbor’s property, either healthy or unhealthy, is encroaching on your property, then you are entitled, through self help, to remove the encroachment at your own cost. If the tree or limb then causes damage to your property, the cases described above indicate that your neighbor’s liability will hinge on whether the tree or limb in question was a nuisance and/or whether your neighbor knew of the nuisance.

DISCLAIMER: This post is provided for informational purposes only. This is not legal advice and does not establish an attorney-client relationship between the author and any reader. I have studied the law on these issues and feel that I have a strong understanding of such issues. However, we live in a day and time where it seems like everyone is looking to sue. Therefore, consult with a lawyer prior to cutting or otherwise removing any tree or limb from neighboring land that you believe is encroaching on your property.

Can the Police come to my house without a warrant and ask me questions?

Unfortunately, the short answer to this question is yes. As a general rule, a search warrant must be obtained to search an area in which an individual has a reasonable expectation of privacy. However, this general rule is subject many exceptions, i.e., there are several situations in which the police do not need a search warrant.
Tennessee Appellate Courts have crafted an exception to search warrant requirement known as a “knock and talk.” A knock and talk is a law enforcement tactic through which the police knock on people's doors and talk to them about allegations of illegal activity. According to Tennessee Appellate Courts, a knock and talk requires no basis for suspecting crime either has been committed or is in the process of being committed. Police often employ knock and talk tactics when there is not sufficient evidence to obtain a search warrant.
In State v. Cothran, 115 S.W.3d 513 (Tenn.Ct.App.2003), an anonymous caller informed the police that methamphetamine was being manufactured at a particular residence. The police went to the residence and knocked on the door, after which a male voice shouted “come on in.” Upon entering the residence, the police observed drug paraphernalia in plain view.
The Cothran Court addressed was the legality of the police arriving at a residence and conducting a knock and talk without a search warrant. The Court noted that various federal courts and state courts have recognized knock and talk as an appropriate investigative tactic and that those courts have found that knock and talk is “a consensual encounter, as well as a means to request consent to search a residence.” The Cothran Court drew on the following text from the Ninth Circuit Court of Appeals:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

The Court concluded that neither probable cause nor reasonable suspicion is needed to conduct a knock and talk.
In reaching this conclusion, the Cothran Court reiterated that a person does not have an expectation of privacy in the area in the front of his residence, which leads from the public way to the front door. Instead, the Court observed that a sidewalk or pathway leading from a public street to the front door of a residence represents an “implied invitation” to the public to use the pathway to interact with those inside the residence. Further, the Court noted that, once the police have conducted a knock and talk, a warrant is not required “when voluntary and knowing consent to enter a residence is given.”
As you can see from the above information, the police can come to your house without a warrant and ask you questions. However, just because the police are at your door does not mean that you have to let them in the home! Remember, the police cannot enter your home without either a search warrant or your permission. If they don’t have a warrant, you have the authority to deny them entry to your home. It’s your constitutional right!
As always, if you are involved with the police and are not sure what to do, tell the police that you want to talk to your lawyer. Usually, nothing good can come from speaking to the police without your lawyer present. Don’t learn this lesson the hard way.

Joe Brandon Argues the Constitutionality of Judges Using Social Media - State v. Madden

 

Last year, Joe Brandon argued in front of the Tennessee Court of Criminal Appeals on the constitutionality of judges using social media and the constitutionality of juror questions. After these arguments, our office received several requests to publish the oral arguments in their entirety. Therefore, we have published the oral arguments from State v. Madden in entirety on YouTube.

Click here to view the oral arguments from State v. Madden.

Can Police Pat Me Down or Search Me If I Haven't Done Anything Wrong?

Unfortunately, the short answer to this question is yes, as it seems that Tennessee Courts continue to erode the protections of the State and Federal Constitutions.
It is well settled law that an officer can perform a frisk, often called a protective search, of a suspect when the officer has "reasonable suspicion" that the suspect is armed. See Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion must be based on "specific and articulable facts," not just "inchoate and unparticularized suspicion or 'hunch.'" Id. According to the Tennessee Court of Criminal Appeals, these specific facts may be derived from information obtained from other law enforcement personnel or citizens, known patterns of criminal behavior, or the officer's experience. State v. Winn, 974 S.W.2d 700, 703 (Tenn. Crim. App. 1998). The Winn Court further states that "other circumstances" may justify a protective search, including:

[A] characteristic bulge in the suspect's clothing; observation of an object in the pocket which might be a weapon; an otherwise inexplicable sudden movement toward a pocket or other place where a weapon could be concealed; an otherwise inexplicable failure to remove a hand from a pocket; backing away by the suspect under circumstances suggesting he was moving back to give himself time and space to draw a weapon; awareness that the suspect had previously been engaged in serious criminal conduct; awareness that the suspect had previously been armed; [and] discovery of a weapon in the suspect's possession.

Id. at 704 (quoting LaFave, Search and Seizure, § 9.5(a) (3d ed. 1996 & Supp.1997)).
Ultimately, a court is going to look at the totality of the circumstances to determine the legality of a protective search of an individual who is not under arrest. However, if the protective search is valid, then one other doctrine, the "Plain Feel Doctrine," may expose the individual being searched to even further invasion.
Under the Plain Feel Doctrine, police can seize contraband from a suspect if three conditions are met: (1) a prior valid reason exists for the protective search; (2) the contraband is detected while the protective search is legitimately in progress; and (3) the incriminating nature of the object perceived by the officer's sense of touch is immediately apparent, which ultimately gives the officer probable cause to believe the object is contraband. Minnesota v. Dickerson, 508 U.S. 366, 374-75 (1993). Probable cause that an object is contraband exists when the officer's knowledge of the facts and circumstances, considering the totality of the circumstances, would lead a person of reasonable caution to believe that the object may be contraband. Texas v. Brown, 460 U.S. 730 (1983).
Knowing this, can the police pat you down or search you when you have done nothing wrong? Under the right circumstances, yes they can. If police see an individual with an extensive criminal history that has a significant bulge in his pocket, then they may be able to legally pat him down even though he has done nothing wrong. In the end, whether or not such a pat down or protective search is legal depends on the facts of each case. Sadly, courts have added more and more exceptions that allow the police to search individuals who have done nothing but look suspicious to the police

In Auto Accidents, what is Comparative Fault?

At our law office, we as lawyers take the time to meet and talk with each client that calls or comes in with a question or problem. It has become a common question in automobile accidents for people to ask, what is comparative fault?” and “how does it affect me?” I will take this opportunity to provide a written explanation to this question.
In the case of McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), our Tennessee Supreme Court made a change to the law regarding automobile and truck accidents in which the Plaintiff has some amount of fault in the accident that gives rise to his/her injury. By briefly outlining the facts of the McIntyre case, the changes in the law, and the resulting new law, become apparent.
In the McIntyre case, the Plaintiff exited Smith’s Truck Stop in Savannah, Tennessee, and entered the main highway. The Plaintiff had been drinking that night and had a blood alcohol content of 0.17 (the legal level for intoxication at that time was 0.10). Shortly after the Plaintiff exited the truck stop, he was struck from the behind by the Defendant. Based upon witness testimony, the Defendant appeared to have been speeding. The Plaintiff sued the Defendant. The Defendant alleged that Plaintiff should not recover anything because of all the ways in which the Plaintiff had contributed to his own injuries. After a trial, the jury found that the Plaintiff and the Defendant were equally at fault and therefore the jury did not grant the Plaintiff any damages.
In the opening sentence of the McIntyre Opinion, the Tennessee Supreme Court states, “we granted Plaintiff’s application for permission to appeal in order to decide whether to adopt a system of comparative fault in Tennessee….We now replace the common law defense of contributory negligence with a system of comparative fault.”
Our highest Court observed that, traditionally, there have been two (2) types of comparative fault: “pure” comparative fault; and “modified” comparative fault. Tennessee found it appropriate to adopt “modified” comparative fault.
So what is “modified” comparative fault? Under “modified” comparative fault, a Plaintiff may recover damages “so long as a plaintiff’s negligence remains less than the defendant’s negligence.” In such a case, “plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.” Trial judges are required to instruct the jury on the effect of a finding as to the percentage of negligence as between the Plaintiff and the Defendant and attorneys for each party are allowed to argue about how this instruction affects a Plaintiff’s ability to recover. In cases where a Plaintiff has sued multiple Defendants, a Plaintiff may recovered damages so long as its fault is less than the combined fault of all Defendants.
As to the practical side of how this would affect someone, consider the following. If a jury found that the Plaintiff was ten (10) percent at fault and awarded fifty thousand ($50,000.00) dollars of damages, the Plaintiff would receive only forty-five thousand ($45,000.00) dollars, as the total amount of damages would be reduced by the percentage of fault of the Plaintiff.
In the real world, insurance defense companies almost always want to claim that the Plaintiff is fifty percent (50%) at fault. This is the method which insurance companies use to heavy hand an injured party.
That is why it is important to have an experienced attorney to represent you. An attorney who will hold the powerful insurance companies accountable and demand the compensation you deserve.
If you have been involved in an automobile/truck accident, we would like an opportunity to help you with your case. Whether you hire us or not, we ask that you give us an opportunity to assess your case with you. Otherwise, you may very well sell yourself short.

Child Custody in Tennessee Determined by a Myriad of Factors

When it comes to divorce, one of the most difficult challenges can be child custody. While it can be a struggle for all parties, children are indirectly affected by other’s actions and at times suffer the greatest deal. In Tennessee, courts decide child custody based upon the best interests of the child. To find the best interests of the child, courts looks at several factors relating to the child, which include a few of the following. Continuity might be the most important factor that courts look at when determining where a child will live. 

In other words, what is the child used to? There is a good chance that a court will keep a child doing what it is used to doing. If the child is 12 years of age or older, the child’s preference also comes into play. In some cases, the court may hear the preference of a child, and at times, the word of an older child may have a higher priority. 

On the same note, courts can tell when a child is being prepped or instructed by an outside party and they do not think highly of this matter. The relationship between the child and parents is a factor to consider and also the mental and physical health of the parents. The history of physical or emotional abuse may also be examined, if any exists. The parent’s ongoing relationship with the child is a factor too. 

In this same regard, the work schedules for each parent are a factor in child custody in Tennessee. Regarding siblings, courts generally tend to try to keep siblings together. Splitting them up is not too common of a practice. While these are just a few dynamics of child custody, none of them carry priority over the other and all are examined with other circumstances.  

In other areas, it is sometimes normal to assume the mother can gain primary custody of a child. While it is common, this is not always the case as gender is not a determining factor in Tennessee. However, like other states, the mother gains custody in most scenarios. These are just a few stepping stones into child custody in the state of Tennessee. With many questions surrounding divorce and child custody laws, it is always a good idea to be prepared to tackle any questions that come to mind.  

For a complete list of Best Interests Factors, see this summary from Knoxville Attorney K.O. Herston.

5 Reasons to Hire a DUI Lawyer in Tennessee 

When it comes to DUI law in Murfreesboro, Tennessee, you want to be prepared when hiring a DUI lawyer. The laws can be complex to the average person, but hiring an experienced DUI lawyer will be to your advantage in the long run. Below are five reasons to hire a DUI lawyer:

1. Knowledge. It’s simply not a great idea to represent your self in the court of law. An experienced DUI lawyer has years of expertise that can leap hurdles in the process. Knowledge is invaluable so it is always a good idea to lean on the expertise of an experienced DUI lawyer.
2. Cost. While legal representation does cost money, you can view the expense as a positive one if your charges could lead to jail time, which will directly affect your cash flow down the line. It’s a good idea to take the first step and hire an experienced DUI lawyer to protect you from losing significant money in fines, fees, and jail time.
3. Documentation. Legal documents require a fine eye for detail. If a filing is late or incorrect, this could lead to a delay in the case and could negatively affect your favor in turn.
4. Competition. When it comes to law, you want to have a competitive advantage, just like any other situation. If you show up to a lawsuit and the other party has an experienced attorney, you may find yourself in a difficult situation. The other side’s lawyer may take advantage of your inexperience. In criminal cases, the prosecutor is experienced, so you will want to protect yourself with an experienced lawyer.
5. Free Consultation. Most attorneys will talk to you on the first appointment at no cost. With this in mind, what would it hurt to speak to an attorney if there is no loss? After the initial meeting, it should give you insight on the next steps in the process.

While there are many more options to consider, these are a few primary and pivotal steps to consider when hiring a DUI lawyer.

How to get a SCRAM Bracelet Removed

Unfortunately, you may have found yourself in a situation where you have a SCRAM placed on your ankle. If so, you are probably wondering if there is anything you can do to get the SCRAM removed. The answer is yes, there is more than likely something you can do to get this removed in Rutherford County Criminal Court.
There is a law that grants the local probation company the ability to place the electronic monitoring system on your person. That law provides that when the Court is determining the amount of bail on a D.U.I. the Court is instructed to consider imposing one (1) of four (4) special conditions, according to T.C.A. 40-11-118(d)(2), if an individual has a prior D.U.I. conviction. These factors are as follows:

1. Ignition Interlock device;
2. Alcohol monitoring devices;
3. Use of electronic monitoring with random alcohol and drug testing;
4. Pre-trial residency in an in-patient drug and alcohol treatment program.

In Rutherford county, the Courts will consider all of these factors upon the filing of an appropriate Motion. Otherwise, the local probation company will place an electronic monitoring device on your ankle. It appears that is the only device they presently have the resources to provide. It does not mean that is your only option.
If you would like more information about the filing of a Motion to get the electronic monitoring device off of your ankle, please give us a call. We will be happy to discuss your options and let you know if we can help you and if so, how.