Big Changes in Tennessee Animal Law

January 1, 2016, was a big day in Tennessee.  It was the first day that the animal abuse registry went into effect.  Now in Tennessee, if an individual is convicted of animal abuse, his or her name will be added to the animal abuse registry.  Local shelters and rescues will be able to check the registry before adopting out a pet.  Although past violators will not be added, any convictions after January 1, 2016 should appear.  Seeing the correlation between animal abuse and child abuse, legislators took a big step in preventing both.

In the September 2015 case of Moore v. Gaut, the Tennessee Court of Appeals said "No" to what was termed "the Big Dog Exception" to well established case law concerning dog bites.  As has been established since the Missio v. Williams case of 1914, "the general rule...respecting the liability of owners or keepers of domestic animals for injuries to third persons is that the owner...is not liable for such injuries, unless the animal was accustomed to injure persons, or had an inclination to do so, and the vicious disposition of the animal was known to the owner or keeper."  the Missio Court further stated that "knowledge of the owner or keeper that [a] dog is vicious is sufficient to sustain liability, without showing that it had ever bitten any one."  This contradicts the old adage that every owner gets "one bite for free".  In the later case of Alex v. Armstrong, the Supreme Court stated that "a dog's playfulness or mischievousness can be a "dangerous propensity" in addition to a "vicious" temperament (a rule that I believe should be applied to children as well as pets, but I digress).   

Both parties admitted in the Moore case that the dog, a Great Dane, had never bitten anyone.  Plaintiff could show no evidence to the trial court that Defendant had any knowledge or notice of the dog's "dangerous propensity".  "As the trial court observed, all the evidence presented by Plaintiff tends to show that Defendant believed his dog was friendly, gentle, and jovial before the bite occurred."  It is also important to note that the dog was located inside a fenced yard on his owner's property at the time of the incident and it was the Plaintiff who approached the dog.

Plaintiff argued that the mere size of the dog should create a "big dog exception" to the well established notice requirement described above.  In his argument to the Court of Appeals, Plaintiff stated "it is common knowledge that Great Danes are an extraordinarily large breed" and he "submits that its size alone placed the Defendant on notice of any dangerous propensity."  He further asserted that "Great Danes are a suspect class of dog" because the are "a large and naturally dangerous animal, based on size, weight, and strength."  The Tennessee Court of Appeals wisely held "We, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog's size or breed."  

As an owner of 3 large dogs, one of which is a Great Dane, I say "Good Job!!!" to the Tennessee Court of Appeals.  If I may paraphrase the great modern day philosopher, Sir Mix-A-Lot, "I like Big Mutts, and I cannot lie!"

5 Estate Planning Tips for Families Under 40

                We under 40 often think that estate planning isn’t necessary. That is something our parents need to be concerned about. Sadly, this could not be further from the truth. As we learn all too frequently, life is unpredictable. Having an estate plan in place is important to ensure that your wishes are met and your family is taken care of regardless of your age or net worth. Here are a few estate planning tips which everyone would benefit from but are a necessity for any young family.

1.       Start your planning now.  As much as we prefer to avoid it, it is important to plan for the worst case scenario. We see it frequently in our line of work and the implications can make a devastating time for a family even more burdensome. Most of us under 40 are still working long days (and often nights) trying to build a life for our family, keep up with the ever increasing expense of doing so and pay off debt. We may not have a ton of money in our savings or retirement accounts. Regardless, an estate plan is the best way to ensure your family will be taken care of if you are not here to do so and that the financial assets available to them are used in the best possible manner.

2.       Develop an estate plan to meet your needs.  At the least, everyone should have a basic estate plan. There are three components to a basic estate plan. The first is a will. A will sets out how you want your life’s work to be provided to your family. It may be as simple or complex as needed to meet your needs. The second component is a Power of Attorney. A Power of Attorney can be set out three different ways. You may have a Power of Attorney over health care, a Power of Attorney over financial matters or a Power of Attorney which covers both in the same document. These documents allow another to stand in for you if you are unable to make your medical or financial decisions. You will designate if you want these documents to be effective immediately or only become effective upon the assessment of two licensed physicians. The final component of your basic estate plan is the Living Will.  A Living Will outlines the measures you desire your health care professional to take in the event you are unable to provide or withdraw consent for your care. While the Power of Attorney over medical allows your agent to make decisions on your behalf, they are bound to comply with the terms set forth in your Living Will. These three tools are important to outline your desires and how you want your assets to be addressed for your family. While cost may be a big concern, a basic estate plan is not as costly as most think. Many people run to online sources to obtain these documents. Often the expense paid for a universal template online is comparable in price to an individualized and enforceable plan with the assistance of a knowledgeable estate planning attorney.

3.       Develop a plan to meet the needs of your loved ones.  We under 40 are often parents of young children. We especially hate to think of the worst happening to our family but it is imperative for us to plan for just that to protect our children. The most important consideration is who you would want to care for your children if you and your spouse are unable to do so. This may be the most important decision you ever make so take your time and ensure you are comfortable with your choice. Keep in mind you can revise your plan if circumstances change and you feel another may be a better fit for such an important role. Also consider how you want your children to be cared for financially. Do you want all of the funds you have set aside to care for your child to be handed over to the caregiver or safely stored away and managed in a trust?

Many families choose a trust which provide them more control over how the funds are distributed to their children. The funds are managed by a Trustee who follows the outline of your will in providing those funds to your children or their caregiver until they reach the age you designate in your trust. Parents often desire for the trust to remain in effect after the age of eighteen. While we may be adults at eighteen, that doesn’t mean we always act like it. Protecting our children, even if it is through the terms of a trust, may be necessary well beyond eighteen years of age. A trust, much like your will, can be as simple or complex as you feel best meet the needs of your family.

4.       Give yourself the peace of mind insurance provides.  One of the many advantages of starting your estate plan early is the lower expense of term life insurance. Life insurance is a relatively low expense that can provide significant security to your family if you are no longer here to care for them. We young families depend on life insurance to fund our estate plans and to care for our children for years to come. It may be beneficial to also consider disability insurance. If you do not have these important tools in place, it is highly recommended you meet with a reparable insurance agent or financial planner to evaluate your options and the expense related. You will likely be surprised at how affordable they are.

5.       Review your estate plan annually.  We at King & King pride ourselves on building relationships with our clients because your estate plan should evolve with you throughout your life. All too frequently clients develop their plan then store it away to be forgotten. Sadly, these situations typically do not end well. We end up in probate court trying to sort out issues which could have been easily, and much more affordably, addressed with a minor revision to an estate plan. It is recommended that you pull out your plan and thoroughly review it annually. The beginning of the year each year is the perfect time. It is when we are thankful for what we have and plan for the coming year. Your estate plan should reflect just that as well. Most revisions are a minimal expense and accomplished by a phone call to your estate planning attorney and brief meeting to finalize the revision. An hour or so of your time may save your family thousands by avoiding an issue in probate court.

                Developing an estate plan for our family is often not at the top of our long to do list but it is important to consider. Failing to do so can have huge implications for your family. We here at King & King work hard to make the process as time efficient and painless as possible. We understand the dynamic of your family, we live it every day, and can help ensure that your family will be appropriately cared for through your estate plan. Please give us call. We can discuss your family in detail and what estate planning tools may best serve you. If you have an estate plan, please pull it out and review it. We are happy to discuss revisions to your plan that may be needed even if we were not the original drafters.

                We are here when you need us at 731-664-6864. You may also email me directly at april@kingplc.com if I can assist you in any way. To learn more about us at King & King and the various services we provide to families visit our website at www.kingplc.com.

5 Ways to Reduce Attorney Fees During a Divorce

Willie Nelson quipped in the movie, The Dukes of Hazzard, while throwing Molotov cocktails from Boss Hogg's Cadillac, "why are divorces so expensive...because they are worth it!"  While the truth of that statement may or may not be true, depending on your perspective, here are 5 ways you can reduce your attorney fees during a divorce.

1.     READ THE CONTRACT:  The relationship between attorney and client begins and ends with the contract.  Not only should you read the contract the attorney presents to you, but you should also understand it.  If you don't understand it, ask questions.  I would rather my clients ask 100 questions about the contract and understand its terms than tell me, "I trust you" and never read it.  Trust the attorney that tells you to read the contract.  Almost as important is to read the bills as they come to you.  Attorneys will go into great detail their bills explaining what work has been done in your case.  This is a great way for you as the client to see what is happening behind the scenes.

2.    DO YOUR HOMEWORK:  Throughout the course of a divorce, clients will be called upon to do some homework.  Attorneys need bank statements, retirement account statements, pay stubs, telephone records, credit card statements, warranty deeds...(you get my point).  Be accurate and thorough in the information and documents that you give your attorney.  Not only will the attorney think you are the greatest client they have ever had, you will save money since your lawyer will spend less time sorting through the information.

3.     BE RESPONSIVE:  It seems obvious, but if your attorney calls or emails you, answer!  It will cost you money if your attorney has to chase you down.

4.     MAKE EFFICIENT USE OF TIME WITH YOUR ATTORNEY:  Anyone that has ever gone through a divorce will probably tell you that it was tough to "turn off their brain".  Questions will constantly swirl in your mind.  Write them down!  When you go see your attorney, ask your questions.  If you aren't set to see your attorney, call or email all of your questions at once.  I assure you it is less expensive to answer one email with 10 questions than to answer 10 emails with one question each.

5.     MAKE SURE YOU UNDERSTAND THE PLAN:  When you go through a divorce, there are a ton of HARD decisions you have to make.  Your attorney will build a strategy based on those decisions.  Again, ask questions.  Think through scenarios.  Make sure you understand your attorney's strategy, and, if you don't, ask questions until you do.  Believe it or not, it will save you money in the long run.  It costs more if your attorney has to "backtrack" because the two of you weren't on the same page.

To Incorporate or Not to Incorporate...That is the Question.

Ask 100 attorneys whether you should incorporate your new business and my guess is that at least 99 of them will question your sanity if you don't.  Attorneys, myself included, have been trained to be "risk adverse", so anything that you can do to protect yourself and your hard-earned assets gets an immediate "YES!!"  In fact, there was a time that I could not imagine a situation where you wouldn't incorporate.  Keep in mind, when I say "incorporate" I am using the broadest sense of the term which includes not only forming a corporation, but also a limited liability company, or "LLC".

When clients come to me to ask about forming a business entity, my mind immediately races to all the possible scenarios leading my client blindly into potential lawsuits, regardless of how plausible the lawsuit is.  One of my "go to" hypotheticals is the delivery boy working for a restaurant taking a deposit to the bank who "t-bones" a school bus full of first graders on there way home from a field trip to the zoo.  In my lawyer mind, the moped my errand boy is riding somehow morphs into a tank just before impact, causing such a horrific scene in my head, Stephen King would blush.  I would immediately tell my restaurant client she needs to incorporate immediately and keep that errand boy away from small children.

Then, we have "Grandma Emma" who supplements her retirement income by selling her handmade doilies online.  She has no employees, works out of her house, and mails all orders directly to the customers.  It becomes more difficult for me to imagine a fiery bus crash that ends Emma's business.  Thus, the question...When does a business need to incorporate?

First, we should keep in mind the purpose of incorporation, for the most part, is protecting personal (as opposed to business) assets.  Therefore, determine whether your business is of a nature that you have exposure to potential liability, and if so, how much exposure.  If at 50 years old, you have no debt, your house is paid for, and you decide to retire from a career working for "The Man" to fulfill your dream of becoming a skydiving instructor, I would say your new business venture has some potential exposure.  I can see Mr. Skydiver plummeting to earth with his first student strapped to his chest only to crash into a school bus of first graders returning from the field trip to the zoo.  (Watch out for the kid on the moped.)  On the other hand, Grandma Emma doesn't have too much exposure as she walks to her mailbox to send out the latest order of doilies.

Another factor for any business to consider is cost.  Aside from the cost for an attorney to prepare the documents to incorporate, you also get to pay for the privilege of having a business entity.  In Tennessee, where I practice, you get to pay the State every year.  Tom Carson Jones, CPA, CGMA with Steele, Martin, Jones & Company, PLC, of Jackson, Tennessee explains, "We're in Tennessee, with no regular state income tax.  If you go to being an LLC, that's a minimum of $400 in taxes per year (plus an extra tax return for me to file).  If we were in a state that has a personal income tax, that same LLC usually costs $10 to $50 per year...but a few states are closer to $200.  Point being is that the benefit of being an LLC (or a corporation) really depends on your state's tax structure.  Your brother-in-law from that other state really isn't the best source of information."

From the attorney perspective, it's a matter of whether you as a "sole proprietor" have enough potential exposure to justify the $400 expense.  If you are straight out of college with no house, a $200 Ford Pinto and a mountain of credit card debt with dreams of owning and operating a mobile car wash, maybe we need to see where you are in a few years before we incorporate.  On the other hand, if you are Mr. Skydiver, we need to talk ASAP.

Obviously, these examples are extreme on all fronts.  The best practice is to talk to your attorney and CPA to help you determine what is the best approach for you and your business.  No shoe fits every foot.

Special thanks to Tom Carson Jones, CPA, CGMA and "The Most Exciting CPA in Town" for his contributions.

New Laws Passed

On July 1^st, T.C.A. 39-40-55 has been amended to allow the use of transdermal monitoring device or some other alcohol or drug monitoring device as a condition of pretrial diversion, parole, probation, judicial diversion or DUI probation where alcohol is alleged as a contributing factor the alleged act.

On July 1^st, T.C.A. 39-131 has been amended to require that the required period of jail time for second and third convictions for domestic assault where bodily injury results must be served in consecutive days and served day for day. It further that a defendant under these circumstances must also serve the difference of the time actually served and the maximum sentence allowed on probation.

Effective July 1^st, the police must obtain a search warrant before searching, examining, extracting or duplicating data from a cellular phone. This burden may also be satisfied if informed consent is provided, the phone has been abandoned or exigent circumstances exist.

Effective July 1^st, one is not required to possess a hand gun permit to have possession of a firearm or ammunition in their vehicle so long as they are not otherwise prohibited from possession of such weapon and have lawful possession of the vehicle.

For more information visit:  http://myspartanews.com/articles/2014/06/30/news/doc53b14e07f3246742118943.txt

HIGH COURT RULES FOR DEATH-ROW INMATES WITH LOW IQ

WASHINGTON (AP) — Twelve years after barring execution of the mentally disabled, the Supreme Court on Tuesday prohibited states in borderline cases from relying only on intelligence test scores to determine whether a death row inmate is eligible to be executed.

In a 5-4 decision that split the court's liberal and conservative justices, the court said that Florida and a handful of other states must look beyond IQ scores when inmates test in the range of 70 to 75. IQ tests have a margin of error, and those inmates whose scores fall within the margin must be allowed to present other evidence of mental disability, Justice Anthony Kennedy said in his majority opinion.

A score of 70 is widely accepted as a marker of mental disability, but medical professionals say people who score as high as 75 can be considered intellectually disabled because of the test's margin of error.

In 2002, the court said that executing mentally disabled inmates violates the Eighth Amendment prohibition on cruel and unusual punishment. But until Tuesday, the justices left to the states the determination of who is mentally disabled.

To read more click here.

Planning for those with Special Needs

Estate planning is important for every family but it is essential for those with a loved one with a developmental disability or delay. While outlining a caregiver for your loved one is important, there are many more complex considerations to address. King & King, offers an array of services focuses on assisting individuals with disabilities and their families in meeting and maintaining their legal, education, employment, medical and social needs. King and King, can assist those in need from the date of their diagnosis throughout their lives by developing an estate plan which allows your loved one to qualify for State or Federal supports, advocating for supports throughout educational endeavors, obtaining conservatorship when your loved one reaches the age of majority, evaluating alternatives to conservatorship if appropriate, advising of programs to assist your family, advising of community supports for your family and establishing a Special Needs Trust to allow your loved one to continue to qualify for services once received. Developing a plan for your loved one with a developmental disability or delay can be one of the most important things you do to protect their future.