Title 29 Remedies and Special Proceedings

Chapter 1 General Provisions — Extraordinary Process

§ 29-1-101. Application of equitable remedies.

The provisions of this Code relating to injunctions, appointment of receivers, and other extraordinary process, apply equally to equity proceedings in any court.

§ 29-1-102. Injunction pending litigation.

In real actions, and in actions for the recovery of personal property in specie, the court in which the suit is pending may restrain the injury, removal, or destruction of the property by process of injunction, until the cause is finally disposed of.

§ 29-1-103. Receivers pending litigation.

The courts are all vested with power to appoint receivers for the safekeeping, collection, management, and disposition of property in litigation in such court, whenever necessary to the ends of substantial justice, in like manner as receivers are appointed by courts of chancery.

1 Backlink

68-11-828

§ 29-1-104. Receiver's bond.

The clerk and master, when so directed by the order of the judge or chancellor, shall take bond and security from the receiver, or the complainant, conditioned for the faithful discharge of the duties of the receiver.

1 Backlink

29-1-111

§ 29-1-105. Courts' powers over extraordinary process.

In all proper cases, also, any of the courts may use all other extraordinary process of the court of chancery, and in the same way as that court, when necessary to effect the ends of justice.

§ 29-1-106. Judges granting extraordinary process.

Injunctions, attachments, except as otherwise provided, writs of ne exeat, and other extraordinary process are granted by the chancellors, circuit judges, and judges of criminal and special courts.

§ 29-1-107. Statement as to first application.

No such extraordinary process shall be granted, unless the party applying therefor state in the party's bill or petition that it is the first application for such process.

§ 29-1-108. Application after refusal.

If any application is made for extraordinary process and refused, no other application shall be granted, except by the court in which the bill is filed.

§ 29-1-109. Endorsement of refusal.

When an application is refused, the officer to whom the same is made shall endorse the refusal on the bill and sign the officer's name thereto, and anyone erasing such endorsement is guilty of, and may be punished for defacing a record.

§ 29-1-110. Transmission of bill and fiat to clerk.

It is the duty of the judge, upon granting the fiat, to envelope the bill and fiat under seal, and direct to the clerk of the court in which the bill is filed, who alone is authorized to open the package.

1 Backlink

29-1-111

§ 29-1-111. Scope of provisions.

Sections 29-1-104 — 29-1-110 and chapters 19 and 24 of this title will apply to all cases in any of the courts which may be resorted to for the extraordinary process provided for in this chapter.

Chapter 2 Statute of Frauds

§ 29-2-101. Writing required for action.

(a) No action shall be brought:
1. (1) To charge any executor or administrator upon any special promise to answer any debt or damages out of such person's own estate;
2. (2) To charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person;
3. (3) To charge any person upon any agreement made upon consideration of marriage;
4. (4) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one (1) year; or
5. (5) Upon any agreement or contract which is not to be performed within the space of one (1) year from the making of the agreement or contract;
6. unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person lawfully authorized by such party. In a contract for the sale of lands, tenements, or hereditaments, the party to be charged is the party against whom enforcement of the contract is sought.
(b)
1. (1) No action shall be brought against a lender or creditor upon any promise or commitment to lend money or to extend credit, or upon any promise or commitment to alter, amend, renew, extend or otherwise modify or supplement any written promise, agreement or commitment to lend money or extend credit, unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the lender or creditor, or some other person lawfully authorized by such lender or creditor.
2. (2) A promise or commitment described in subdivision (b)(1) need not be signed by the lender or creditor, if such promise or commitment is in the form of a promissory note or other writing that describes the credit or loan and that by its terms:
  1. (A) Is intended by the parties to be signed by the debtor but not by the lender or creditor;
  2. (B) Has actually been signed by the debtor; and
  3. (C) Delivery of which has been accepted by the lender or creditor.
1 Backlink
- 39-13-301(6)
(c) For purposes of this section, a writing, or some memorandum or note thereof, includes a record.

1 Backlink

47-8-113

Chapter 3 Abatement of Nuisances

§ 29-3-101. Definitions — Maintenance and abatement of nuisance — Forfeiture of property — Payment of moneys from forfeiture into general funds.

(a) As used herein:
1. (1) “Lewdness” includes all matter of lewd sexual conduct or live exhibition, and includes, but is not limited to, possession, sale or exhibition of any:
  1. (A) Obscene films or plate positives;
  2. (B) Films designed to be projected upon a screen for exhibition; or
  3. (C) Films or slides, either in negative or positive form, designed for projection on a screen for exhibition;
2. (2) “Nuisance” means that which is declared to be a nuisance by other statutes, and, in addition, means:
  1. (A) Any place in or upon which lewdness, prostitution, promotion of prostitution, patronizing prostitution, unlawful sale of intoxicating liquors, unlawful sale of any regulated legend drug, narcotic, other controlled substance or controlled substance analogue, any sale or possession with intent to sell of drug paraphernalia, as defined by § 39-17-402, unlawful gambling, any sale, exhibition or possession of any material determined to be obscene or pornographic with intent to exhibit, sell, deliver or distribute matter or materials in violation of §§ 39-17-901 – 39-17-908, § 39-17-911, § 39-17-914, § 39-17-918, or §§ 39-17-1003 – 39-17-1005, quarreling, drunkenness, fighting, breaches of the peace are carried on or permitted, and personal property, contents, furniture, fixtures, equipment and stock used in or in connection with the conducting and maintaining any such place for any such purposes;
    1 Backlink
    
    29-3-110(a)
  2. (B) A criminal gang, as defined by § 40-35-121(a), that regularly engages in gang related conduct. “Gang related conduct” occurs when one (1) or more criminal gang member or members, as defined by § 40-35-121(a), regularly engages in the following:
    1. (i) Intimidating, harassing, threatening, stalking, provoking or assaulting any person;
    2. (ii) Possessing weapons prohibited under §§ 39-17-1302 and 39-17-1307, knowingly remaining in the presence of anyone who is in possession of such weapons, or knowingly remaining in the presence of such weapons;
    3. (iii) Unlawfully damaging, defacing or marking any public or private property of another or possessing tools for the purpose of unlawfully damaging, defacing or marking any public or private property of another;
    4. (iv) Selling, possessing, manufacturing or using any controlled substance, drug paraphernalia, as defined in § 39-17-402, or controlled substance analogue, as defined in § 39-17-454, knowingly remaining in the presence of anyone selling, possessing, manufacturing or using any controlled substance, controlled substance analogue or drug paraphernalia, knowingly remaining in the presence of any controlled substance, controlled substance analogue or drug paraphernalia, driving under the influence of any controlled substance or controlled substance analogue in violation of § 55-10-401, or being under the influence of any controlled substance or controlled substance analogue in public in violation of § 39-17-310;
    5. (v) Using, consuming, possessing or purchasing alcoholic beverages unlawfully, including, but not limited to, public intoxication in violation of § 39-17-310 or driving under the influence of alcohol in violation of § 55-10-401;
    6. (vi) Criminal trespassing in violation of § 39-14-405;
    7. (vii) Taking any action to recruit gang members or making any threats or promises to shoot, stab, strike, hit, assault, injure, disturb the peace or destroy the personal property of anyone as an incentive to join a gang;
    8. (viii) Taking any action to stop a gang member from leaving a gang or making any threats or promises to shoot, stab, strike, hit, assault, injure, disturb the peace or destroy the personal property of anyone as an incentive not to leave a gang;
    9. (ix) Engaging in a criminal gang offense as defined by § 40-35-121(a);
    10. (x) Disorderly conduct in violation of § 39-17-305; or
    11. (xi) Contributing to or encouraging the delinquency or unruly behavior of a minor in violation of § 37-1-156; or
    1 Backlink
    
    29-3-110(b)(1)
  3. (C) Any place in or upon which a person knowingly takes, by defrauding, or conspiring or colluding with, the recipient of public assistance benefits funded in whole or in part by the federal government or state of Tennessee, any part of such benefits knowing the person is not authorized or entitled by law to receive the portion of benefits taken;
  1 Backlink
  - 29-3-109
3. (3) “Person” means and includes any individual, corporation, association, partnership, trustee, lessee, agent or assignee; and
4. (4) “Place” means and includes any building, room enclosure or vehicle, or separate part or portion thereof or the ground itself and all the property on which the nuisance is located that is under the ownership, management or control of the violator.
(b) Any person who uses, occupies, establishes or conducts a nuisance, or aids or abets therein, and the owner, agent or lessee of any interest in any such nuisance, together with the persons employed in or in control of any such nuisance by any such owner, agent or lessee, is guilty of maintaining a nuisance and such nuisance shall be abated as provided hereinafter.
(c) All motor vehicles, furnishings, fixtures, equipment, moneys and stock, used in or in connection with the maintaining or conducting of a nuisance, are subject to seizure, immediately upon detection by any law enforcement officer and are subject to forfeiture to the state by order of a court having jurisdiction upon application by any of the officers or persons authorized by § 29-3-102, to bring action for the abatement of such nuisance; provided, that seizure for the possession of obscene matter shall be in accordance with §§ 39-17-901 – 39-17-908 and seizure for violations of §§ 39-17-1003 – 39-17-1005 shall be in accordance with §§ 39-17-1006 and 39-17-1007. Any property so forfeited shall be disposed of by public auction or as otherwise provided by law.
(d) All moneys from such forfeiture and all proceeds realized from the enforcement of this section shall be paid equally into the general funds of the state and the general funds of the political subdivision or other public agency, if any, whose officers made the seizure, except as otherwise provided by law.
(e)
1. (1) Upon a person's second or subsequent conviction for promoting prostitution or patronizing prostitution, any vehicle in which such offense was committed is subject to seizure and forfeiture in accordance with the procedure established in title 39, chapter 11, part 7; provided, however, that nothing contained within this subsection (e) shall be construed to authorize seizure of such vehicle at any time prior to such conviction.
2. (2) Subdivision (e)(1) applies only if the violations making the vehicle subject to seizure and forfeiture occur in Tennessee and at least one (1) of the previous violations occurs on or after July 1, 2002, and the second or subsequent offense after July 1, 2002, occurs within five (5) years of the most recent prior offense occurring after July 1, 2002.

6 Backlinks

§ 29-3-102. Jurisdiction to abate.

The jurisdiction is hereby conferred upon the chancery, circuit, and criminal courts and any court designated as an environmental court pursuant to chapter 426 of the Public Acts of 1991, chapter 212 of the Public Acts of 1993 or chapter 667 of the Public Acts of 2002 to abate the public nuisances defined in § 29-3-101, upon petition in the name of the state, upon relation of the attorney general and reporter, or any district attorney general, or any city or county attorney, or without the concurrence of any such officers, upon the relation of ten (10) or more citizens and freeholders of the county wherein such nuisances may exist, in the manner herein provided.

3 Backlinks

§ 29-3-103. Filing of bill — Parties.

When a public nuisance, as defined in § 29-3-101, is kept, maintained, carried on, or exists in any county, a bill or petition may be filed in any chancery, circuit, or criminal court of such county, in the name of the state, by and upon the relation of the respective officers or persons named in § 29-3-102, against the person keeping, maintaining, or carrying on such nuisance, and all aiders and abettors therein, and the owners, proprietors, or agents or persons or corporations in charge or control of the building or place wherein such nuisance exists, for the purpose of having such nuisance abated and permanently discontinued. In addition, petitions under this chapter for the abatement of gang related conduct may be brought against the gang itself to which the gang members belong.

§ 29-3-104. Bond of relators.

Where such bill or petition is filed by citizens and freeholders, they shall make bond, in such sum as the judge or chancellor shall prescribe, conditioned to pay all costs and damages in the event the court trying the case shall adjudge that the proceeding was instituted without probable cause; but no bond for costs or damages shall be required where the proceeding is instituted by and upon the relation of the attorney general and reporter or a district attorney general or a county or a city attorney.

§ 29-3-105. Temporary injunction.

(a) In such proceeding, the court, or a judge or chancellor in vacation, shall, upon the presentation of a bill or petition therefor, alleging that the nuisance complained of exists, award a temporary writ of injunction, enjoining and restraining the further continuance of such nuisance, and the closing of the building or place wherein the same is conducted until the further order of the court, judge, or chancellor.
(b) The award of a temporary writ of injunction shall be accompanied by such bond as is required by law in such cases, in case the bill is filed by citizens and freeholders; but no bond shall be required when such is filed by the officers provided for, if it shall be made to appear to the satisfaction of the court, judge or chancellor, by evidence in the form of a due and proper verification of the bill or petition under oath, or of affidavits, depositions, oral testimony, or otherwise, as the complaints or petitioners may elect, that the allegations of such bill or petition are true.

1 Backlink

29-3-109

§ 29-3-106. Notice of hearing — Effect of injunction — Ex parte writ.

(a)
1. (1) Five (5) days' notice in writing shall be given the defendant of the hearing of the application; and if then continued at defendant's instance, the writ as prayed for shall be granted as a matter of course.
2. (2) Notwithstanding subsection (c), if a defendant, who is the owner of the property and not the person keeping, maintaining, or carrying on the nuisance, demonstrates that the defendant was unaware of the nuisance prior to receiving the notice required by this subsection (a), and that the defendant has voluntarily taken steps after receiving notice to abate the nuisance without the involvement of the court, the court may dismiss the petition or continue the action pending further action by the defendant.
(b) When the injunction shall have been granted, it shall be binding upon the defendant throughout the county until modified or set aside by the court, judge, or chancellor having cognizance of the case; and any violation of the injunction by the defendant, or upon defendant's procurement, shall be a contempt of court and punished as hereinafter provided.
(c) When a bill or petition is made by any of the respective officers named in § 29-3-102 and supported by affidavit that there is probable cause to believe that a public nuisance exists, neither notice of the application nor of the hearing shall be required before the court may grant the writ, ex parte. A hearing shall be conducted within five (5) days following the execution of the writ closing and padlocking the premises, or the writ shall expire. Notice of the hearing shall be given to the defendant. If the defendant seeks to continue the hearing on the temporary injunction beyond the five-day period, the temporary injunction shall remain in effect.

1 Backlink

29-3-109

§ 29-3-107. Voluntary dismissal — Substitution of relators.

(a) No such proceeding shall be voluntarily dismissed except upon a written, sworn statement of the relator or relators of the reasons for dismissal.
(b) If such reasons are not satisfactory to the court, or the court shall be of opinion that the proceeding ought not to be dismissed, it may order the same to proceed, and may substitute another relator or relators willing to act as such, either with or without bond, in the court's discretion.

§ 29-3-108. Time of trial.

Proceedings under §§ 29-3-101 — 29-3-111 shall be triable at the first term after due notice or service of process, and shall, in the chancery and circuit courts, be given precedence over all other causes.

§ 29-3-109. Discovery.

Discovery may be permitted under the rules of civil procedure consistent with a scheduling order entered by the court upon motion of any party or upon the court's own initiative. Discovery shall not disrupt the effect of the temporary injunction issued under § 29-3-105 or § 29-3-106, and neither the identity nor the location of a confidential informant used to establish gang membership under § 29-3-101(a)(2) shall be discoverable.

§ 29-3-110. Order of abatement.

(a) If, upon the trial, the existence of the nuisance is established under § 29-3-101(a)(2)(A), an order of abatement shall be entered as part of the judgment or decree of the court, which order shall direct the removal from the building or place where the nuisance exists or is maintained of all means, appliances, fixtures, appurtenances, materials, supplies and instrumentalities used for the purpose of conducting, maintaining or carrying on the unlawful business, occupation, game, practice or device constituting the nuisance; and shall direct the sale thereof, or such portion thereof as may be lawfully sold, upon such terms as the court may order, and the payment of the proceeds into court to be applied to costs or paid over to the owner, and the destruction of such portion thereof, if any, as cannot be lawfully sold within this state; and the judgment or decree shall perpetually enjoin the defendant from engaging in, conducting, continuing, or maintaining the nuisance, directly or indirectly, by the defendant or defendant's agents or representatives, and perpetually forbidding the owner of the building from permitting or suffering the nuisance to be done in the building.
(b)
1. (1) Upon any hearing or trial, the establishment of a criminal gang as a nuisance under § 29-3-101(a)(2)(B) need only be proven by clear and convincing evidence, notwithstanding any references under this chapter to the criminal code. Neither a criminal conviction nor a finding of juvenile delinquency is required in order to prove, by clear and convincing evidence, that particular conduct is gang related conduct to be abated as a nuisance under this chapter. Gang related conduct to be abated as a nuisance may be proven through the testimony of a fact witness, an expert witness, or a combined fact-expert witness pursuant to the rules of evidence.
2. (2) If, upon any hearing or trial, the existence of a gang related nuisance is established under § 29-3-101, an order of abatement shall be entered as part of the judgment or decree of the court. That order shall enjoin perpetually the defendant or defendants from engaging in, conducting, continuing, aiding or abetting the nuisance, directly or indirectly.
3. (3) In addition to the relief permitted in subdivision (b)(2), the court may designate a certain geographically defined area or areas in any temporary or permanent gang injunction, which are narrowly tailored in compliance with prevailing constitutional case law for one (1) or more of the following purposes:
  1. (A) Preventing the gang from gathering in public in groups of two (2) or more members; and
  2. (B) Preventing any gang member from entering any specific public park or parcel of property where the gang has been found to have carried out its operations.
4. (4) All gang injunctions shall also include an “opt out” provision permitting an individual to seek an order of dismissal from the injunction upon proper application to the court, with thirty (30) days' notice to the petitioner, truthfully stating that the individual renounces involvement with that particular gang, which is the subject of the gang injunction, and for the last two (2) years:
  1. (A) Has not committed any crimes or engaged in any form of criminal conduct, not including any time spent incarcerated;
  2. (B) Has not been in the company, or association, of any person found under this chapter to be a gang member, other than an immediate family member; and
  3. (C) Has not obtained any new gang related tattoos.
(c) In the order of abatement, the court may also assess costs of public services required to abate or manage the nuisance, including, but not limited to, law enforcement costs, if any, caused by the public nuisance. The governmental entity shall submit evidence of such costs to the court.
(d)
1. (1) Any person who is not specifically named in a gang injunction issued pursuant to subsection (b) may be subject to the injunction by service upon the person of:
  1. (A) A petition by the original petitioner to amend the injunction to specifically include the person; or
  2. (B) A summons and a copy of the injunction.
2. (2) Service of the petition or summons shall include a date, time, and place of a hearing, where the original petitioner shall be required to show why the person should be subject to the injunction.
3. (3) A person who is added to the injunction under subdivision (d)(1) shall be subject to § 29-3-111 for any conduct occurring after the date the person is added to the injunction.
4. (4) A person who is added to the injunction under subdivision (d)(1) shall be afforded the same opt-out provisions under subdivision (b)(4).
(e) No later than April 1 of each year, the commissioner of safety, after consulting with the petitioners where gang injunctions permitted by this act are in effect, shall submit a detailed, written report to the judiciary committee of the senate and the civil justice committee of the house of representatives regarding the implementation of chapter 865 of the Public Acts of 2014 and containing relevant data for the previous calendar year that shall include, but not be limited to:
1. (1) The number of injunctions against criminal gangs in effect;
2. (2) The number of persons charged with violating a gang injunction under § 29-3-111(a);
3. (3) The number of persons convicted for violating a gang injunction under § 29-3-111(a); and
4. (4) All criminal charges filed during the previous calendar year against persons specifically named in a gang injunction.

§ 29-3-111. Penalty for violation.

(a) If any person breaks into, enters, or uses any building or place while closed under a preliminary injunction granted under §§ 29-3-101 — 29-3-111, violates any permanent injunction granted under such sections, or knowingly violates any temporary or permanent gang injunction, such person commits a Class C misdemeanor.
2 Backlinks
- 29-3-110(e)(2)
- 29-3-110(e)(3)
(b) As used in this section, “knowingly” refers to the mental state as described in § 39-11-302.

3 Backlinks

§ 29-3-112. Unlawfully engaging in business or profession.

The carrying on, conducting, or practice of any profession, business, or occupation which is prohibited by law, unless the person so engaging in such profession, business, or occupation is in the possession of or holds a license issued by some board or other authority organized under the laws of the state, by any person not possessed of or holding the required license, is hereby declared to be a public nuisance, and the same may be abated under any procedure now provided by law for the abatement of any public nuisance, and such abatement may be accomplished by injunction.

2 Backlinks

§ 29-3-113. Relators in abatement of business or occupation.

The writ of injunction provided for in § 29-3-112 may be sued out by the board, or commissioner, charged with the supervision of the particular business or profession; or by any person affected by such nuisance.

1 Backlink

57-5-204

§ 29-3-114. Abatement incident to action for damages.

In all suits brought for the recovery of damages resulting from any nuisance, and the finding that the matter complained of is a nuisance, the court exercising a sound discretion may immediately, upon petition of plaintiff, order or decline to order the nuisance to be abated.

§ 29-3-115. Proof in action for damages.

On the trial of such action for the recovery of damages, either party may show by proof the extent, if any, of the injury or injuries complained of, and how the alleged nuisance is caused or originated.

Chapter 4 Agreed Cases

§ 29-4-101. Agreement to submit — Court to which submitted.

The same parties who are entitled to enter into an agreement of submission to arbitration, and including contestants' titles to real property, may, in like manner, with or without action brought, agree upon a case containing the facts upon which the controversy depends, and submit the same to the circuit or chancery court of the county in which either of the parties resides, or in which a suit might have been brought to determine such controversy.

§ 29-4-102. Real controversy.

It must appear by the affidavit of the parties, or their attorneys, that the controversy is real, and the proceeding in good faith, to determine the rights of the parties.

§ 29-4-103. Costs.

The parties shall give bond and security for the costs of an agreed case, unless they pay the clerk's fees and state tax in advance; and all costs incurred shall be borne equally by the parties, unless they agree that the costs shall abide the event of the cause.

§ 29-4-104. Judgment — Jurisdiction.

The judgment or decree shall be entered as in other cases, and no objection shall lie to the jurisdiction of the circuit or chancery court, whether the matter be of legal or equitable cognizance.

§ 29-4-105. Appeal.

The parties to submission and agreed cases are entitled to all the benefits of the proceedings for the correction of errors.

Chapter 5 Arbitration

Part 1 General Provisions

§ 29-5-101. Subjects of arbitration.

All causes of action, whether there be a suit pending therefor or not, may be submitted to the decision of one (1) or more arbitrators, except in one (1) of the following cases:
1. (1) Where one (1) of the parties to the controversy is an infant or a person adjudicated incompetent;
2. (2) One (1) respecting a claim to an estate in real property, in fee or for life. Not included in the exception are:
  1. (A) A controversy in regard to an estate or term for one (1) year or less or of years not exceeding five (5); or
  2. (B) Respecting the partition of real property, or the boundaries of lands.
  5 Backlinks

§ 29-5-102. Scope of submission.

The submission may be of some particular matters or demands, or of all demands which one (1) party has against the other, or of all mutual demands.

§ 29-5-103. Parties entitled to submit.

The submission may be made by any party in interest, or by an executor, administrator, trustee, or assignee for creditors.

§ 29-5-104. Contents of agreement — Court of entry.

(a) The submission shall be by written agreement, general or special, specifying what demands are to be submitted, the names of the arbitrators or the manner of their selection, but not necessarily that of the umpire, and the court by which the judgment on their award is to be rendered, and if such written agreement requires one (1) of the parties to name an arbitrator and such party fails to do so, the court by which the judgment on the award is to be rendered shall on such failure so to name an arbitrator, upon the petition of the opposite party, appoint such arbitrator.
(b) The agreement may specify that the submission be entered of record in any court of law or equity, or, in cases within its jurisdiction, before a judge of the court of general sessions.

§ 29-5-105. Entry of agreement — Order of submission.

On proof of such agreement, or by consent of parties in person or by counsel, it shall be entered in the proceedings of the court or on the docket of the judge, and an order made that the parties submit to the award, which shall be made in pursuance of such agreement. Upon such proof or consent, the judge may, in vacation, make upon the agreement the order mentioned in this section, and such order shall have the same force and effect as if made in term.

§ 29-5-106. Irrevocability of submission.

No such submission shall be revocable after the submission agreement is signed by the parties or entered of record, without leave of the court, except by mutual consent entered of record.

§ 29-5-107. Notice of hearing — Continuances.

(a) The arbitrators shall give notice of the time and place of the hearing, which notice shall be served or accepted at least five (5) days before the day set for trial.
(b) They, or a majority of them, may grant continuances upon their own motion or upon application of either party for good cause shown, but not to a day beyond the time set for the rendering of the final award unless an extension is granted by court or expressly agreed to in writing by the parties or their attorneys.

§ 29-5-108. Failure of parties to appear.

If either party neglects to appear for trial after due notice, except on account of sickness or unavoidable absence, the arbitrators may proceed to a hearing and determination.

§ 29-5-109. Evidence and witnesses.

(a) In all submission cases, depositions may be taken to be used before the arbitrators, and witnesses may be summoned by subpoena, to be issued by the clerk of the court as in other cases.
(b) These witnesses may be sworn by any arbitrator, or umpire, and, if guilty of false swearing, they are liable to all the penalties of perjury, as if sworn in court.
(c) Witnesses are also subject to all the penalties prescribed by law, for failing to attend and give testimony, in pursuance of the subpoena, as well as in damages to the party injured by their default; and, on the other hand, they are entitled to like privileges and like compensation as other witnesses. The forfeiture shall be enforced as provided in § 24-2-103.

§ 29-5-110. Umpire.

(a) Where, and only where, the submission expressly so provides may an umpire be appointed by the arbitrators; the same to be done by them in writing.
(b) The umpire shall sit with the original arbitrators upon the hearing; if testimony has been taken before the umpire's appointment, the matter must be reheard unless a rehearing is waived in the original submission or by subsequent written consent of the parties.
(c) One (1) or more points in dispute may be referred to an umpire.

§ 29-5-111. Time of filing award.

(a) If the time within which the award is to be made is fixed in the submission, no award made after that time shall have any legal effect, unless made upon a recommitment by the court; the court or parties by consent in writing may, however, enlarge the time within which an award is to be made.
(b) If the time of filing the award is not fixed in the submission, it shall be filed within eight (8) months from the time such submission is signed, unless by mutual consent the time is prolonged.

§ 29-5-112. Transmission of award to court.

The award shall be in writing, and should be delivered by the umpire or one (1) of the arbitrators to the court designated in the agreement, or it may be enclosed and sealed by them, and transmitted to the court, and not opened until the court orders.

§ 29-5-113. Time of action on award.

The cause will be entered on the docket and called up and acted upon in its order; but the court may require actual notice to be given either party, when it appears necessary and proper, before proceeding to act on the award.

5 Backlinks

§ 29-5-114. Rejection or recommittal.

The award may be rejected by the court for any legal and sufficient reasons, or it may be recommitted for a rehearing to the same or any other arbitrators agreed upon by the parties in writing.

§ 29-5-115. Modification of award.

The court is empowered, on motion of either party, to correct or modify the award:
1. (1) Where there is manifest a miscalculation of figures, or a mistake in the description of any person, thing or property referred to in the award;
2. (2) Where there has been covered in the award a matter not submitted, if not merely incident, not affecting the merits of matters submitted;
3. (3) Where the award is defective or imperfect in a matter of form not affecting the merits; and
4. (4) To effect the true and just intent thereof.

5 Backlinks

§ 29-5-116. Compensation of arbitrators and umpire.

Arbitrators and the umpire, if one, shall be entitled to five dollars ($5.00) for each day they were actually engaged in their duties, or to such greater sum as the parties may have in the submission agreed, or as they may in subsequent writing stipulate.

§ 29-5-117. Costs.

If there is no provision in the submission respecting costs, the arbitrators, or the court, may apportion and tax same. The court is empowered to revise any apportionment or taxation made by the arbitrators.

§ 29-5-118. Judgment on award.

When the award is adopted, it is filed and entered on the records, and judgment shall be rendered including costs and fees to the arbitrators and any umpire, and execution or other necessary process awarded accordingly.

5 Backlinks

§ 29-5-119. Common law awards.

Awards of arbitrators under agreements not reached in pursuance of this chapter may nevertheless be valid, as contracts, impeachable for fraud or mistake; but such awards may only be enforced by independent actions.

Part 2 Cotton Arbitration

§ 29-5-201. Short title.

This part shall be known and may be cited as the “Cotton Arbitration Act.”

§ 29-5-202. Enforceability of agreement to submit to arbitration.

(a) A written agreement to submit any existing controversy within or related to the cotton industry to arbitration or a provision in a written contract, except a forward crop contract, to submit to arbitration any controversy within or related to the cotton industry thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.
(b) As used in this part:
1. (1) “Any controversy within or related to the cotton industry” includes, but is not limited to, any controversy arising from, connected with, or in any way relating to the sale, purchase, pledge, hypothecation, or exchange of, or other transaction in cotton;
2. (2) “Court” means any court of competent jurisdiction of this state. Any agreement made in conformity with subsection (a) in this state confers jurisdiction on the court to enforce an agreement under this part and to enter judgment or an award thereunder; and
3. (3) “Forward crop contract” means a contract for the sale of a cotton crop or crops which have not been harvested at the time of execution of the contract if the cotton is to be produced by the seller or seller's agents, and if the obligation to deliver is excused upon seller's failure, after good faith effort, to produce the crop or crops sold.
(c) This part shall not apply to any controversy within or related to the cotton industry if any party involved in such controversy is a cotton farmer or cotton ginner.

1 Backlink

29-5-203(a)

§ 29-5-203. Court order for arbitration.

(a) On application of a party showing an agreement described in § 29-5-202, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.
(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
1 Backlink
- 29-5-219(a)(2)
(c) If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection (a), the application shall be made therein. Otherwise and subject to § 29-5-218, the application may be made in any court of competent jurisdiction.
(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

2 Backlinks

§ 29-5-204. Appointment of arbitrators.

If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and the arbitrator's successor has not been duly appointed, the court on application of a party shall appoint one (1) or more arbitrators. An arbitrator so appointed has all the powers of one specially named in the agreement.

1 Backlink

29-5-213(c)

§ 29-5-205. Majority of arbitrators exercise powers.

The powers of the arbitrators may be exercised by a majority unless otherwise provided by the agreement or by this part.

§ 29-5-206. Hearings.

Unless otherwise provided by the agreement:
1. (1) The arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered mail not less than five (5) days before the hearing. Appearance at the hearing waives such notice. The arbitrators may adjourn the hearing from time to time as necessary and, on request of a party and for good cause, or, upon their own motion, may postpone the hearing to a time not later than the date fixed by the agreement for making the award unless the parties consent to a later date. The arbitrators may hear and determine the controversy upon the evidence produced, notwithstanding the failure of a party duly notified to appear. The court on application may direct the arbitrators to proceed promptly with the hearing and determination of the controversy;
2. (2) The parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing;
3. (3) The hearing shall be conducted by all the arbitrators but a majority may determine any question and render a final award, unless the agreement provides otherwise. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.

1 Backlink

29-5-213(a)(4)

§ 29-5-207. Representation by attorney.

A party has the right to be represented by an attorney at any proceeding or hearing under this part. A waiver thereof prior to the proceeding or hearing is ineffective.

§ 29-5-208. Attendance of witnesses — Production of records and documents — Oaths — Depositions.

(a) The arbitrators may cause to be issued, by the clerk of the court, subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served, and upon application to the court by a party or the arbitrators, enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action.
(b) On application of a party and for use as evidence, the arbitrators may permit a deposition to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing.
(c) All laws compelling a person under subpoena to testify are applicable.
(d) Fees for attendance as a witness shall be the same as for a witness in circuit courts.

§ 29-5-209. Award made by arbitrators.

(a) The award shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy to each party personally or by registered mail, or as provided in the agreement.
(b) An award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on application of a party. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless the party notifies the arbitrators of that party's objection prior to the delivery of the award to the other party.

§ 29-5-210. Review of award.

(a) On application of a party or, if an application to the court is pending under § 29-5-212, § 29-5-213 or § 29-5-214, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in § 29-5-214(a)(1) and (3), or for the purpose of clarifying the award.
(b) The application shall be made within twenty (20) days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating that the opposing party must serve objections thereto, if any, within ten (10) days from the notice.
(c) The award so modified or corrected is subject to § 29-5-212, § 29-5-213 or § 29-5-214.

§ 29-5-211. Expenses, costs and fees.

Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including attorney fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.

§ 29-5-212. Confirmation of award.

Upon application of a party the court shall confirm an award, unless within the time limits hereinafter imposed, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 29-5-213 and 29-5-214.

4 Backlinks

§ 29-5-213. Vacation of award.

(a) Upon application of a party, the court shall vacate an award where:
1. (1) The award was procured by corruption, fraud or other undue means;
2. (2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
3. (3) The arbitrators exceeded their powers;
4. (4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to § 29-5-206, as to prejudice substantially the rights of a party; or
5. (5) There was no arbitration agreement and the issue was not adversely determined in proceedings under § 29-5-203 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
(b) An application under this section shall be made within ninety (90) days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known.
(c) In vacating the award on grounds other than stated in subdivision (a)(5) the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with § 29-5-204, or, if the award is vacated on grounds set forth in subdivisions (a)(3) and (4), the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with § 29-5-204. The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.
(d) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

3 Backlinks

§ 29-5-214. Modification or correction of award.

(a) Upon application made within ninety (90) days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
1. (1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
  1 Backlink
  - 29-5-210(a)
2. (2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
3. (3) The award is imperfect in a matter of form, not affecting the merits of the controversy.
(b) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
(c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.

3 Backlinks

§ 29-5-215. Judgment or decree — Costs — Enforcement.

(a) Upon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree.
(b) Costs of the application and of the proceedings subsequent thereto, and disbursements may be awarded by the court.

2 Backlinks

§ 29-5-216. Judgment roll — Docketing judgment.

(a) On entry of the judgment or decree, the clerk shall prepare the judgment roll consisting, to the extent filed, of the following:
1. (1) The agreement and each written extension of the time within which to make the award;
2. (2) The award;
3. (3) A copy of the order confirming, modifying or correcting the award; and
4. (4) A copy of the judgment or decree.
(b) The judgment or decree may be docketed as if rendered in an action.

§ 29-5-217. Application for court order — Procedure — Notice.

Except as otherwise provided, an application to the court under this part shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.

§ 29-5-218. Venue.

(a) An initial application shall be made to the court of the county in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county in which it was held. Otherwise the application shall be made in the county where the adverse party resides or has a place of business or, if the adverse party has no residence or place of business in this state, to the court of any county.
(b) All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.

1 Backlink

29-5-203(c)

§ 29-5-219. Appeals.

(a) An appeal may be taken from:
1. (1) An order denying an application to compel arbitration made under § 29-5-203;
2. (2) An order granting an application to stay arbitration made under § 29-5-203(b);
3. (3) An order confirming or denying confirmation of an award;
4. (4) An order modifying or correcting an award;
5. (5) An order vacating an award without directing a rehearing; or
6. (6) A judgment or decree entered pursuant to this part.
(b) The appeal shall be taken in the manner and to the same extent as from orders of judgments in a civil action.

§ 29-5-220. Foreign arbitration hearings or awards.

(a) Notwithstanding any other law to the contrary, the court shall not confirm an award under § 29-5-212 or enter judgment or decree in conformity therewith under § 29-5-215 where the arbitration hearing or award was made outside of the United States and its territories and the foreign state wherein the award was made does not grant reciprocity in recognition and enforcement of arbitration awards made in the United States or its territories.
(b) The prohibition set forth in subsection (a) of this section shall not apply where the party seeking confirmation under § 29-5-212, or entry of judgment or decree under § 29-5-215, and the real party in interest benefited by the award is a citizen of the United States.

§ 29-5-221. Application of law.

This part shall apply only to agreements made subsequent to July 1, 1977.

Part 3 Uniform Arbitration Act

§ 29-5-301. Short title.

This part is known and may be cited as the “Uniform Arbitration Act.”

§ 29-5-302. Part definitions.

As used in this part:
1. (1) “Arbitration organization” means an association, agency, board, commission, or other entity that is neutral and initiates, sponsors, or administers an arbitration proceeding or is involved in the appointment of an arbitrator;
2. (2) “Arbitrator” means an individual appointed to render an award, alone or with others, in a controversy that is subject to an agreement to arbitrate;
3. (3) “Court” means a court of competent jurisdiction in this state;
4. (4) “Knowledge” means actual knowledge;
5. (5) “Person” means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or another legal or commercial entity; and
6. (6) “Record” means information that:
  1. (A) Is inscribed on a tangible medium; or
  2. (B) Is stored in an electronic or other medium and is retrievable in perceivable form.

§ 29-5-303. Notice.

(a) Except as otherwise provided in this part, a person gives notice to another person by taking action that is reasonably necessary to inform the other person in ordinary course. A form of notice that is specified by the agreement to arbitrate or the rules of an arbitration organization specified in the agreement to arbitrate, is conclusively presumed reasonable.
(b) A person has notice if the person has knowledge of the notice or has received notice.
(c) A person receives notice when the notice comes to the person's attention, or the notice is delivered at the person's place of residence or place of business, or at another location held out by the person as a place of delivery of the communications.

§ 29-5-304. Applicability of the part.

(a) This part governs an agreement to arbitrate made on or after the effective date of this act.
1 Backlink
- 29-5-305(c)
(b) This part governs an agreement to arbitrate made before the effective date of this act, if all the parties to the agreement or to the arbitration proceeding so agree in a record.
(c) On or after July 1, 2023, this part governs an agreement to arbitrate whenever made.

1 Backlink

56-7-1206(h)(2)

§ 29-5-305. Effect of agreement to arbitrate — Nonwaivable provisions.

(a) Except as otherwise provided in subsections (b) and (c), a party to an agreement to arbitrate or to an arbitration proceeding may waive or, the parties may vary the effect of, the requirements of this part to the extent permitted by law.
(b) Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement shall not:
1. (1) Waive or agree to vary the effect of the requirements of § 29-5-306(a), § 29-5-307(a), § 29-5-309, § 29-5-318(a) or (b), § 29-5-327, or § 29-5-329;
2. (2) Agree to unreasonably restrict the right under § 29-5-310 to notice of the initiation of an arbitration proceeding;
3. (3) Agree to unreasonably restrict the right under § 29-5-313 to disclosure of facts by a neutral arbitrator; or
4. (4) Waive the right under § 29-5-317 of a party to an agreement to arbitrate to be represented by a lawyer at a proceeding or hearing under this part, but an employer or a labor organization may waive the right to representation by a lawyer in a labor arbitration.
(c) A party to an agreement to arbitrate or arbitration proceeding shall not waive, or the parties shall not vary the effect of, the requirements of this section or § 29-5-304(a) or (c), § 29-5-308, § 29-5-315, § 29-5-319, § 29-5-321(d) or (e), § 29-5-323, § 29-5-324, § 29-5-325, § 29-5-326(a) or (b), § 29-5-330, § 29-5-331, § 29-5-332, or § 29-5-333.

§ 29-5-306. Application for judicial relief.

(a) Except as otherwise provided in § 29-5-329, an application for judicial relief under this part must be made by petition to the court and heard in the manner provided by law or rule of court for making and hearing motions.
1 Backlink
- 29-5-305(b)(1)
(b) Unless a civil action involving the agreement to arbitrate is pending, notice of an initial petition to the court under this part must be served in the manner provided by law for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by law or rule of court for serving motions in pending cases.

1 Backlink

29-5-328

§ 29-5-307. Validity of agreement to arbitrate.

(a) An agreement contained in a record to submit to arbitration an existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable, except upon a ground that exists at law or in equity for the revocation of a contract.
1 Backlink
- 29-5-305(b)(1)
(b) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.
(c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.
(d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, then the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

§ 29-5-308. Motion to compel or stay arbitration.

(a) On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement:
1. (1) If the refusing party does not appear or does not oppose the motion, then the court must order the parties to arbitrate; and
2. (2) If the refusing party opposes the motion, then the court must proceed summarily to decide the issue and order the parties to arbitrate, unless the court finds that there is no enforceable agreement to arbitrate.
(b) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, then the court shall order the parties to arbitrate.
(c) If the court finds that there is no enforceable agreement, then the court must not order the parties to arbitrate pursuant to subsection (a) or (b).
(d) The court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.
(e) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, then a motion under this section must be made in that court. Otherwise a motion under this section must be made in a court as provided in § 29-5-328.
(f) If a party makes a motion to the court to order arbitration, then the court on just terms must stay a judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.
(g) If the court orders arbitration, then the court on just terms must stay a judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, then the court may limit the stay to that claim.

1 Backlink

29-5-305(c)

§ 29-5-309. Provisional remedies.

(a) Before an arbitrator is appointed and is authorized and able to act, the court, upon a motion of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent, and under the same conditions, as if the controversy were the subject of a civil action.
(b) After an arbitrator is appointed and is authorized and able to act:
1. (1) The arbitrator may issue orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the extent permitted by the agreement to arbitrate or by the rules of an arbitration organization provided in the agreement; and
2. (2) A party to an arbitration proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy. The provisional remedy is limited to remedies calculated to preserve the parties' status quo pending appointment of and action by the arbitrator.
(c) A party does not waive a right of arbitration by making a motion under subsection (a) or (b).

1 Backlink

29-5-305(b)(1)

§ 29-5-310. Initiation of arbitration.

(a) A person initiates an arbitration proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe the nature of the controversy and the remedy sought.
(b) Unless a person objects for lack or insufficiency of notice under § 29-5-316(c) no later than the beginning of the arbitration hearing, the person, by appearing at the hearing, waives an objection to lack of or insufficiency of notice.

2 Backlinks

§ 29-5-311. Consolidation of separate arbitration proceedings.

(a) Class or collective arbitrations in any case governed by this chapter shall not be permitted, unless the agreements to arbitrate of all parties to be joined expressly permit the arbitrator or arbitrators to entertain such actions. In cases where class or collective arbitration is permitted, the arbitrator or arbitrators shall have the authority specified in this section. Nothing in this section prohibits the consolidation of proceedings in cases where all affected parties expressly agree to consolidation; provided, consolidation is not prohibited by the parties' agreement as provided in subsection (d).
(b) Except as otherwise provided in subsection (d), upon a motion of a party to an agreement to arbitrate or to an arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims, if:
1. (1) There are separate agreements to arbitrate or separate arbitration proceedings between the same persons or one (1) of them is a party to a separate agreement to arbitrate or a separate arbitration proceeding with a third person;
2. (2) The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions;
3. (3) The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings; and
4. (4) Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of, or hardship to, parties opposing consolidation.
(c) The court may order consolidation of separate arbitration proceedings as to some claims and allow other claims to be resolved in separate arbitration proceedings.
(d) The court shall not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.

§ 29-5-312. Appointment of arbitrator — Service as a neutral arbitrator.

(a) If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, then that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator appointed fails or is unable to act and a successor has not been appointed, then the court, on a motion of a party to the arbitration proceeding, must appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method.
(b) An individual who has a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party shall not serve as an arbitrator required by an agreement to be neutral.

1 Backlink

29-5-316(e)

§ 29-5-313. Disclosure by arbitrator.

(a) Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitration proceeding and to other arbitrators known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including:
1. (1) A financial or personal interest in the outcome of the arbitration proceeding; and
2. (2) An existing or past relationship with the parties to the agreement to arbitrate or the arbitration proceeding, the parties' counsel or representatives, a witness, or other arbitrators.
(b) An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and arbitration proceeding and to other arbitrators facts that the arbitrator learns after accepting appointment that a reasonable person would consider likely to affect the impartiality of the arbitrator.
(c) If an arbitrator discloses a fact required by subsection (a) or (b) to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, then the objection may be a ground under § 29-5-324(a)(2) for vacating an award made by the arbitrator.
(d) If the arbitrator did not disclose a fact as required by subsection (a) or (b), upon timely objection by a party, then the court under § 29-5-324(a)(2) may vacate an award.
(e) An arbitrator appointed as a neutral arbitrator who does not disclose a known, direct, and material interest in the outcome of the arbitration proceeding, or a known, existing, and substantial relationship with a party, is presumed to act with evident partiality under § 29-5-324(a)(2).
(f) If the parties to an arbitration proceeding agree to the procedures of an arbitration organization or other procedures for challenges to arbitrators before an award is made, then substantial compliance with those procedures is a condition precedent to a motion to vacate an award on that ground under § 29-5-324(a)(2).

2 Backlinks

§ 29-5-314. Action by majority.

If there is more than one (1) arbitrator, then the powers of an arbitrator must be exercised by a majority of the arbitrators, and all of them must conduct the hearing under § 29-5-316(c).

§ 29-5-315. Immunity of arbitrator — Competency to testify — Attorney's fees and costs.

(a) An arbitrator or an arbitration organization acting in that capacity is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity.
(b) The immunity afforded by this section supplements immunity afforded under other law.
(c) The failure of an arbitrator to make a disclosure required by § 29-5-313 does not cause a loss of immunity under this section.
(d) In a judicial, administrative, or similar proceeding, an arbitrator or representative of an arbitration organization is not competent to testify, and is not required to produce records as to statements, conduct, decisions, or rulings occurring during the arbitration proceeding, to the same extent as a judge of a court of this state acting in a judicial capacity. This subsection (d) does not apply:
1. (1) To the extent necessary to determine the claim of an arbitrator, arbitration organization, or representative of the arbitration organization against a party to the arbitration proceeding; or
2. (2) To a hearing on a motion to vacate an award under § 29-5-324(a)(1) or (2) if the movant establishes prima facie that a ground for vacating the award exists.
(e) If a person commences a civil action against an arbitrator, arbitration organization, or representative of an arbitration organization arising from the services of the arbitrator, organization, or representative, or if a person seeks to compel an arbitrator or a representative of an arbitration organization to testify or produce records in violation of subsection (d), and the court decides that the arbitrator, arbitration organization, or representative of an arbitration organization is immune from civil liability or that the arbitrator or representative of the organization is not competent to testify, then the court must award to the arbitrator, organization, or representative reasonable attorney's fees and other reasonable expenses of litigation.

1 Backlink

29-5-305(c)

§ 29-5-316. Arbitration process.

(a) An arbitrator may conduct an arbitration in the manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding. The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitration proceeding before the hearing and, among other matters, determine the admissibility, relevance, materiality, and weight of evidence.
(b) An arbitrator may decide a request for summary disposition of a claim or particular issue:
1. (1) If all interested parties agree; or
2. (2) Upon request of one (1) party to the arbitration proceeding, if that party gives notice to all other parties to the proceeding and the other parties have a reasonable opportunity to respond.
(c) If an arbitrator orders a hearing, then the arbitrator must set a time and place and give notice of the hearing no less than five (5) days before the hearing begins. Unless a party to the arbitration proceeding makes an objection to lack or insufficiency of notice no later than the beginning of the hearing, the party's appearance at the hearing waives the objection. Upon request of a party to the arbitration proceeding and for good cause shown, or upon the arbitrator's own initiative, the arbitrator may adjourn the hearing from time to time as necessary but shall not postpone the hearing to a time later than that fixed by the agreement to arbitrate for making the award, unless the parties to the arbitration proceeding consent to a later date. The arbitrator may hear and decide the controversy upon the evidence produced, although a party who was duly notified of the arbitration proceeding did not appear. The court, on request, may direct the arbitrator to conduct the hearing promptly and render a timely decision.
3 Backlinks
(d) At a hearing under subsection (c), a party to the arbitration proceeding has a right to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.
(e) If an arbitrator ceases or is unable to act during the arbitration proceeding, then a replacement arbitrator must be appointed in accordance with § 29-5-312 to continue the proceeding and to resolve the controversy.

1 Backlink

29-5-324(a)(3)

§ 29-5-317. Representation by lawyer.

A party to an arbitration proceeding may be represented by a lawyer.

1 Backlink

29-5-305(b)(4)

§ 29-5-318. Witnesses — Subpoenas — Depositions — Discovery.

(a) An arbitrator may issue a subpoena for the attendance of a witness, and for the production of records and other evidence at a hearing, and may administer oaths. A subpoena must be served in the manner for service of subpoenas in a civil action and, upon a motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.
1 Backlink
- 29-5-305(b)(1)
(b) In order to make the proceedings fair, expeditious, and cost effective, upon request of a party to, or a witness in, an arbitration proceeding, an arbitrator may permit a deposition of a witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for, or is unable to attend, a hearing. The arbitrator shall determine the conditions under which the deposition is taken.
(c) An arbitrator may permit discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious, and cost effective.
(d) If an arbitrator permits discovery under subsection (c), then the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator's discovery-related orders, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a discovery proceeding, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this state.
(e) An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets, and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this state.
(f) All laws compelling a person under subpoena to testify, and all fees for attending a judicial proceeding, a deposition, or a discovery proceeding as a witness, apply to an arbitration proceeding as if the controversy were the subject of a civil action in this state.
(g) The court may enforce a subpoena or discovery-related order for the attendance of a witness within this state and for the production of records and other evidence issued by an arbitrator in connection with an arbitration proceeding in another state upon conditions determined by the court so as to make the arbitration proceeding fair, expeditious, and cost effective. A subpoena or discovery-related order issued by an arbitrator in another state must be served in the manner provided by law for service of subpoenas in a civil action in this state and, upon a motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by law for enforcement of subpoenas in a civil action in this state.

§ 29-5-319. Judicial enforcement of pre-award ruling by arbitrator.

If an arbitrator makes a pre-award ruling in favor of a party to the arbitration proceeding, then the party may request the arbitrator to incorporate the ruling into an award under § 29-5-320. A prevailing party may make a motion to the court for an expedited order to confirm the award under § 29-5-323, in which case the court shall summarily decide the motion. The court shall issue an order to confirm the award, unless the court vacates, modifies, or corrects the award under § 29-5-324 or § 29-5-325.

1 Backlink

29-5-305(c)

§ 29-5-320. Award.

(a) An arbitrator shall make a record of an award. The record must be signed or otherwise authenticated by an arbitrator who concurs with the award. The arbitrator or the arbitration organization shall give notice of the award, including a copy of the award, to each party to the arbitration proceeding.
1 Backlink
- 29-5-321(e)
(b) An award must be made within the time specified by the agreement to arbitrate or, if not specified in the agreement, within the time ordered by the court. The court may extend, or the parties to the arbitration proceeding may agree in a record, to extend the time. The court or the parties may do so within or after the time specified or ordered. A party waives an objection that an award was not timely made, unless the party gives notice of the objection to the arbitrator before receiving notice of the award.
1 Backlink
- 29-5-324(c)

3 Backlinks

§ 29-5-321. Change of award by arbitrator.

(a) On a motion to an arbitrator by a party to an arbitration proceeding, the arbitrator may modify or correct an award:
1. (1) Upon a ground stated in § 29-5-325(a)(1) or (3);
2. (2) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or
3. (3) To clarify the award.
(b) A motion under subsection (a) must be made and notice given to all parties within twenty (20) days after the movant receives notice of the award.
(c) A party to the arbitration proceeding shall give notice of an objection to the motion within ten (10) days after receipt of the notice.
(d) If a motion to the court is pending under § 29-5-323, § 29-5-324, or § 29-5-325, then the court may submit the claim to the arbitrator to consider whether to modify or correct the award:
1. (1) Upon a ground stated in § 29-5-325(a)(1) or (a)(3);
2. (2) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or
3. (3) To clarify the award.
1 Backlink
- 29-5-305(c)
(e) An award modified or corrected pursuant to this section is subject to §§ 29-5-320(a), 29-5-323, 29-5-324, and 29-5-325.

3 Backlinks

§ 29-5-322. Remedies — Fees, and expenses of arbitration proceeding.

(a) In all cases in which the agreement of the parties does not exclude the seeking of punitive damages, an arbitrator may award punitive damages or other exemplary relief, if the award is authorized by law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim.
(b) An arbitrator may award reasonable attorney's fees and other reasonable expenses of arbitration, if the award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding.
(c) As to all remedies other than those authorized by subsections (a) and (b), an arbitrator may order remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under § 29-5-323 or for vacating an award under § 29-5-324.
(d) An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award.
(e) If an arbitrator awards punitive damages or other exemplary relief under subsection (a), then the arbitrator must specify in the award the basis in fact justifying, and the basis in law authorizing, the award and state separately the amount of the punitive damages or other exemplary relief.

§ 29-5-323. Confirmation of award.

After a party to an arbitration proceeding receives notice of an award, the party may make a motion or petition to the court for an order confirming the award, at which time, the court must issue a confirming order, unless the award is modified or corrected pursuant to § 29-5-321 or § 29-5-325, or is vacated pursuant to § 29-5-324.

6 Backlinks

§ 29-5-324. Vacating award.

(a) Upon a motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:
1. (1) The award was procured by corruption, fraud, or other undue means;
  1 Backlink
  - 29-5-315(d)(2)
2. (2) There was:
  1. (A) Evident partiality by an arbitrator appointed as a neutral arbitrator;
  2. (B) Corruption by an arbitrator; or
  3. (C) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
  4 Backlinks
3. (3) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to § 29-5-316, so as to prejudice substantially the rights of a party to the arbitration proceeding;
4. (4) An arbitrator exceeded the arbitrator's powers;
5. (5) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under § 29-5-316(c) no later than the beginning of the arbitration hearing; or
6. (6) The arbitration was conducted without proper notice of the initiation of an arbitration as required in § 29-5-310 so as to prejudice substantially the rights of a party to the arbitration proceeding.
(b) A motion under this section must be filed within ninety (90) days after the movant receives notice of the award pursuant to § 29-5-320, or within ninety (90) days after the movant receives notice of a modified or corrected award pursuant to § 29-5-321, unless the movant alleges that the award was procured by corruption, fraud, or other undue means, in which case, the motion must be made within ninety (90) days after the ground is known or by the exercise of reasonable care would have been known by the movant.
(c) If the court vacates an award on a ground other than that set forth in subdivision (a)(5), then the court may order a rehearing. If the award is vacated on a ground stated in subdivision (a)(1) or (a)(2), then the rehearing must be before a new arbitrator. If the award is vacated on a ground stated in subdivision (a)(3), (a)(4), or (a)(6), then the rehearing may be before the arbitrator who made the award or the arbitrator's successor. The arbitrator must render the decision in the rehearing within the same time as that provided in § 29-5-320(b) for an award.
(d) If the court denies a motion to vacate an award, then the court must confirm the award, unless a motion to modify or correct the award is pending.

7 Backlinks

§ 29-5-325. Modification or correction of award.

(a) Upon a motion made within ninety (90) days after the movant receives notice of the award pursuant to § 29-5-320, or within ninety (90) days after the movant receives notice of a modified or corrected award pursuant to § 29-5-321, the court shall modify or correct the award if:
1. (1) There was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award;
  2 Backlinks
  - 29-5-321(a)(1)
  - 29-5-321(d)(1)
2. (2) The arbitrator has made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision upon the claims submitted; or
3. (3) The award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted.
(b) If a motion made under subsection (a) is granted, then the court must modify or correct and confirm the award as modified or corrected. Otherwise, unless a motion to vacate is pending, the court shall confirm the award.
(c) A motion to modify or correct an award pursuant to this section may be joined with a motion to vacate the award.

6 Backlinks

§ 29-5-326. Judgment on award — Attorney's fees, and litigation expenses.

(a) Upon granting an order confirming, vacating without directing a rehearing, modifying, or correcting an award, the court shall enter a judgment in conformity with the award. The judgment may be recorded, docketed, and enforced as other judgments in a civil action.
1 Backlink
- 29-5-305(c)
(b) A court may allow reasonable costs of the motion and subsequent judicial proceedings.
(c) On application of a prevailing party to a contested judicial proceeding under § 29-5-323, § 29-5-324, or § 29-5-325, the court may add reasonable attorney's fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award.

§ 29-5-327. Jurisdiction.

(a) A court of this state having jurisdiction over the controversy and the parties may enforce an agreement to arbitrate.
(b) An agreement to arbitrate providing for arbitration in this state confers exclusive jurisdiction on the court to enter judgment on an award under this part.

1 Backlink

29-5-305(b)(1)

§ 29-5-328. Venue.

A motion pursuant to § 29-5-306 must be made in the court of the county in which the agreement to arbitrate specifies the arbitration hearing is to be held or, if the hearing has been held, in the court of the county in which the hearing was held. Otherwise, the motion may be made in the court of a county in which an adverse party resides or has a place of business or, if no adverse party has a residence or place of business in this state, then in the court of any county in this state. Subsequent motions must be made in the court hearing the initial motion unless the court otherwise directs.

1 Backlink

29-5-308(e)

§ 29-5-329. Appeals.

(a) An appeal may be taken from:
1. (1) An order denying a motion to compel arbitration;
2. (2) An order granting a motion to stay arbitration;
3. (3) An order confirming or denying confirmation of an award;
4. (4) An order modifying or correcting an award;
5. (5) An order vacating an award without directing a rehearing; or
6. (6) A final judgment entered pursuant to this part.
(b) An appeal under this section must be taken as from an order or a judgment in a civil action.

2 Backlinks

§ 29-5-330. Uniformity of application and construction.

In applying and construing this part, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

1 Backlink

29-5-305(c)

§ 29-5-331. Relationship to electronic signatures in global and national commerce act.

The provisions of this part governing the legal effect, validity, and enforceability of electronic records or electronic signatures, and of contracts performed with the use of electronic records or signatures conform to the requirements of Section 102 of the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7002).

1 Backlink

29-5-305(c)

Chapter 6 Attachment and Replevy

§ 29-6-101. Grounds for attachment.

Any person having a debt or demand due at the commencement of an action, or a plaintiff after action for any cause has been brought, and either before or after judgment, may sue out an attachment at law or in equity, against the property of a debtor or defendant, in the following cases:
1. (1) Where the debtor or defendant resides out of the state;
2. (2) Where the debtor or defendant is about to remove, or has removed, the debtor's or defendant's person or property from the state;
3. (3) Where the debtor or defendant has removed, or is removing, the debtor's or defendant's person out of the county privately;
4. (4) Where the debtors or defendants concealed is so that the ordinary process of law cannot be served upon the debtor or defendant;
5. (5) Where the debtor or defendant absconds, or absconded concealing the debtor's or defendant's person or property;
6. (6) Where the debtor or defendant has fraudulently disposed of, or is about fraudulently to dispose of, the property;
7. (7) Where any person liable for any debt or demand, residing out of the state, dies, leaving property in the state; or
8. (8) Where the debtor or defendant is a foreign corporation which has no agent in this state upon whom process may be served by any person bringing suit against such corporation; provided, that the plaintiff or complainant need only make oath of the justness of the claim, that the debtor or defendant is a foreign corporation and that it has no agent in the county where the property sought to be attached is situated upon whom process can be served.

3 Backlinks

§ 29-6-102. Debts not due.

An attachment may, in like manner, be sued out upon debts or demands not due, in any of the cases mentioned in § 29-6-101, except the first; that is, when the debtor or defendant resides out of the state.

1 Backlink

29-6-104

§ 29-6-103. Endorser or surety.

Any accommodation endorser or surety may, in like manner, sue out an attachment against the property of such endorsor's or surety's principal, as a security for the liability, whether the debt on which the accomodation endorsed or surety is bound be due or not.

1 Backlink

29-6-104

§ 29-6-104. Judgment postponed until debt due.

No final judgment or decree shall be rendered upon attachment under § 29-6-102 or § 29-6-103, until the debt or demand upon which it is based becomes due; nor shall any property levied upon thereby be sold, until final judgment or decree, except property of a perishable nature, which may be sold as in other attachment cases.

§ 29-6-105. Discharge on giving bond.

The attachment by endorser or surety shall be discharged, if the principal will give bond and security, to be approved by the court, in term time, or its clerk in vacation, to indemnify the plaintiff.

§ 29-6-106. Tort actions.

(a) In all actions for torts, brought in any court having jurisdiction thereof, where the defendant is a nonresident of this state, or falls within any of the provisions of § 29-6-101 authorizing attachment to issue, it shall be lawful for the plaintiff to commence such suit by attachment in the same manner as suits are commenced upon contracts by existing laws.
(b) The plaintiff or plaintiff's agent or attorney shall first make affidavit before the judge or clerk issuing the attachment that the damages sued for are justly due the plaintiff, as affiant believes, but that the true amount of such damages are not ascertained, and that one (1) or more of the causes exist for the issuance of the attachment.
(c) The plaintiff, plaintiff's agent or attorney, shall give bond with one or more approved securities in double the supposed amount of the damages claimed, unless otherwise fixed, payable to defendant, and conditioned as now provided by law in attachment cases.
(d) It is the duty of the judge or clerk, before whom the affidavit is made and bond given, to issue the attachment, returnable as in other attachment cases upon contracts.

§ 29-6-107. Return of summons unserved.

(a) In any civil action, when the summons has been returned “not to be found in my county,” as to all or any one of the defendants, residents of the county, the plaintiff may have an alias and pluries summons for the defendant, or, at plaintiff's election, sue out attachment against the estate of such defendant.
(b) Upon the return of the attachment levied on any property of the defendant, the cause proceeds against such defendant in all respects as if originally commenced by attachment.

§ 29-6-108. Property of nonresidents.

No judicial attachment shall issue against the estate of any person residing without the limits of the state, unless such process is grounded on an original attachment, or unless the leading process in the suit has been executed on the person of the defendant when within the state.

§ 29-6-109. Parties residents of same foreign state.

When the debtor and creditor, tort-claimant and tort-feasor, are both nonresidents of this state, and residents of the same state, the creditor or claimant shall not have attachment against the property of the debtor, or the tort-defendant unless the creditor or claimant swears that the property of the latter has been fraudulently removed to this state to evade the process of law in the state of domicile or residence.

§ 29-6-110. Jurisdiction of courts.

Suits by original attachment may be brought in any court, or before any magistrate, having jurisdiction of the cause of action.

§ 29-6-111. Attachment by chancery on legal debts.

Any person may also sue out an attachment in the chancery court, upon debts or demands of a purely legal nature, except causes of action founded on torts, without first having recovered a judgment at law, whenever the amount in controversy is sufficient to give the court jurisdiction.

§ 29-6-112. Officer granting attachment.

The attachment may be granted by any judge of the circuit, criminal, or special court, by any chancellor or judge of the court of general sessions, or by the clerk of the court to which the attachment is made returnable.

§ 29-6-113. Plaintiff's affidavit.

In order to obtain an attachment, the plaintiff, plaintiff's agent or attorney, shall make oath in writing, stating the nature and amount of the debt or demand, and that it is a just claim; or, if the action is for a tort, that the damages sued for are justly due the plaintiff or plaintiffs, as affiant believes, but that the true amount of such damages is not ascertained; and, also, that one (1) or more of the causes enumerated in § 29-6-101 exists.

§ 29-6-114. Alternative statement of grounds.

It is no objection to the attachment that the bill, affidavit, or attachment states in the alternative, or otherwise, more than one (1) of the causes for which attachment may be sued out.

§ 29-6-115. Plaintiff's bond.

The officer to whom application is made, shall, before granting the attachment, require the plaintiff, the plaintiff's agent or attorney, to execute a bond with sufficient security, payable to the defendant, and conditioned that the plaintiff will prosecute the attachment with effect, or, in case of failure, pay the defendant all costs that may be adjudged against defendant, and, also, all such damages as the defendant may sustain by the wrongful suing out of the attachment.

§ 29-6-116. Amount of bond.

The bond to be required before issuance of the writ shall be in penalty as follows:
1. (1) When the amount of the claim is less than the value of the property sought to be attached, a bond in a penalty equal to the asserted amount of the plaintiff's or complainant's debt or lien plus an additional sum which in the opinion of the issuing officer will be sufficient to cover the probable cost of litigation and all damages that may be sustained by reason of the wrongful suing out of the writ;
2. (2) When the amount of such debt, or lien of the plaintiff or complainant shall be greater than the value of the property sought to be attached, the penalty shall be equal to the estimated value of such property plus an additional sum which in the opinion of the issuing officer will be sufficient to cover such costs and damages;
3. (3) When the claim is for unliquidated damages, the penalty shall be equal to the value of the personal property to be attached plus such sum as will be sufficient to cover such costs and damages; or
4. (4) When the property to be attached is real estate, the issuing officer shall only require a bond in penalty sufficient to cover all such costs and damages as same may be estimated by the issuing officer.

§ 29-6-117. Description of property.

(a) A substantially accurate description of the property to be attached, and its approximate value, shall be set forth in the bill or affidavit praying for the writ of attachment, and if in the bill of complaint, same shall be verified by the oath of the complainant, complainant's agent or attorney.
(b) The issuing officer shall look to but not be bound by such recitations.
(c) Lacking such description and valuation, the bond shall be in a penalty double the amount claimed by the plaintiff or complainant.

§ 29-6-118. Filing of affidavit and bond.

The affidavit and bond shall be filed by the officer taking them, in the court to which the attachment is returnable, and shall constitute a part of the record in the cause.

§ 29-6-119. Pleadings on debt not due.

If the debt or demand, on which the attachment suit is brought, is not due at the time of the service of the attachment, the plaintiff is not required to file any pleadings until the maturity of such debt or demand.

§ 29-6-120. Contents of writ.

The writ shall be addressed to the sheriff of the county, unless the suit be before a judge of the court of general sessions, and then it may be addressed to a constable; and it shall command the sheriff or constable to attach and safely keep, repleviable upon security, the estate of the defendant, wherever the same may be found in the county, or in the hands of any person indebted to or having any of the effects of the defendant, or so much thereof as shall be of value sufficient to satisfy the debt or demand, and the costs of the complaint.

§ 29-6-121. Form of writ.

(a) The writ may be substantially in the following form:
1. State of Tennessee,
2. County.
3. To the sheriff of County, greeting:
4. Whereas, A B (or C D, as the agent or attorney of A B) hath complained on oath to me, E F, judge (chancellor or clerk), that G H is justly indebted (or liable) to A B in the sum of dollars, and affidavit having also been made in writing, and bond given as required by law in attachment cases, you are hereby commanded to attach so much of the estate of G H as will be of value sufficient to satisfy the debt and costs according to the complaint, and such estate, unless replevied, so to secure that the same may be liable to further proceedings thereon to be had at the court, to be held for the county of , on the day of next (or before a general sessions judge of county, on the day of ), when and where you will make known how you have executed this writ. Witness, E F, judge of the court (chancellor or clerk), this day of , 20 . E F.
(b) No objection will lie to the form of the attachment, if the essential matters in this section be set forth in such attachment.

§ 29-6-122. Return of affidavit and bond.

The affidavit and bond shall be returned by the officer granting the attachment to the tribunal to which the attachment is made returnable.

§ 29-6-123. Abatement for want of affidavit or bond.

Attachments issued without affidavit and bond, as herein prescribed, may be abated by plea of the defendant.

§ 29-6-124. Correction of defects.

The attachment law shall be liberally construed, and the plaintiff, before or during trial, shall be permitted to amend any defect of form in the affidavit, bond, attachment, or other proceedings; and no attachment shall be dismissed for any defect in, or want of, bond, if the plaintiff, plaintiff's agent, or attorney will substitute a sufficient bond.

§ 29-6-125. Alias writs.

Alias writs of attachment or new writs of garnishment may issue without new bond or affidavit, when no property has been found, or not sufficient to satisfy the debt, or when, pending the suit, the plaintiff wishes to garnishee other persons.

§ 29-6-126. Summons on original attachment.

In all suits commenced by original attachment in any court of record, or before a general sessions judge, it shall be the duty of the clerk issuing the attachment, upon application of the plaintiff, to issue a summons also against the defendant for the same cause of action, and if the summons is executed on the defendant, or when the officer returns on the summons that the officer has levied the writ of attachment, but returns on the summons accompanying the writ of attachment that the defendant is not to be found, the plaintiff may sue out alias and pluries summons, directed to the county where the defendant resides, to have service upon the defendant; and if the summons is executed, no publication shall be made, and there shall be no stay of judgment as required by law in attachment cases where the defendant is made a party by attachment and publication only. The summons shall be in the usual form, and, in addition, shall notify the defendant that an original attachment suit has been commenced against the defendant, and shall be returned to the same court as the attachment.

§ 29-6-127. Return of ancillary attachment.

Attachments sued out in aid of a suit already brought shall be made returnable to the court before whom the suit is pending.

§ 29-6-128. Amount of property attached.

The writ of attachment should direct so much of the property of the defendant to be attached as will be sufficient to satisfy the plaintiff's debt or demand, and all costs.

§ 29-6-129. Territorial application of process.

The process of attachment issues against the property of the defendant wherever the same may be found.

§ 29-6-130. Counterpart writs.

The officer granting the attachment may direct, upon proper application, that counterpart writs of attachment issue to any county in which property of the defendant may be found, or such counterparts may be subsequently applied for and obtained upon good cause shown.

§ 29-6-131. Execution by constables.

(a) Constables may execute attachments returnable before general sessions judges, and in cases where the defendant is about to abscond or remove.
(b) This chapter and chapter 7 of this title in relation to the duties of attaching officers embrace constables whenever they are authorized to serve attachments.

§ 29-6-132. Property subject to levy.

Attachments may be levied upon any real or personal property of either a legal or equitable nature, debts or choses in action, whether due or not due, in which the defendant has an interest.

§ 29-6-133. Personal property preferred.

The officer to whom the writ is delivered shall attach and take into the officer's possession, in the first instance, so much of the personal property of the defendant as may be necessary to meet the exigency of the writ, and shall levy the attachment, when necessary, upon the defendant's real estate.

§ 29-6-134. Excessive levy.

If the officer make an excessive levy, the officer shall be liable as in case of excessive levy by execution.

§ 29-6-135. Transfer after attachment.

Any transfer, sale, or assignment, made after the filing of an attachment bill in chancery, or after the suing out of an attachment at law, of property mentioned in the bill or attachment, as against the plaintiff, shall be inoperative and voidable, as elsewhere provided.

§ 29-6-136. Actions after attachment of debt or effects.

If, after the service upon any person of a copy of the bill, or levy of the attachment at law upon debts or effects in such person's hands, any person should pay the debt, or secrete the effects, or purchase in any other claim against the defendant, that person shall be liable to the same extent as before the payment, secreting, or purchase.

§ 29-6-137. Postponement of judgment if debt attached before due.

If debts or choses in action not due are levied upon, no final judgment or decree shall be rendered until they become payable.

§ 29-6-138. Collection of choses by officer.

In all cases where choses in action are attached, the officer levying the attachment may collect the same until the writ is returned, unless otherwise ordered.

§ 29-6-139. Money received on attachment.

Money attached by the officer, or coming to the officer's hands by virtue of the attachment, shall forthwith be paid over to the clerk of the court in which the suit is pending, to be by the clerk retained until the further action of the court.

§ 29-6-140. Appointment of receiver.

The court before whom the suit is pending, may, at any time, appoint a receiver to take possession of property attached under this chapter or chapter 7 of this title, and to collect, manage, and control the same, and pay over the proceeds according to the nature of the property and exigency of the case.

§ 29-6-141. Perishable property.

(a) Perishable property may be sold by order of the court before whom the suit is pending, unless replevied by the defendant.
(b) If any, or all, of the property is of so perishable a nature, or so expensive, as to render a sale necessary for the interest of the parties, before the officer can make the return, the officer may sell the same, upon advertisement as in the case of execution sales, and make return of the facts with the proceeds of sale.

§ 29-6-142. Order of publication.

(a) The officer granting the attachment may, at the time, direct that, as soon as the attachment is levied, publication be made in some newspaper, requiring the defendant to appear at a time and place to be mentioned in such publication, before the court having cognizance of the attachment, and defend the action thus commenced, otherwise the cause may be proceeded with ex parte.
(b) If the order of publication is not then made, the clerk of the court or the court itself may make such order at any time thereafter.

§ 29-6-143. Entry of publication order in record.

(a) The order should be entered upon the general sessions judge's docket, as well as endorsed upon the papers, in all attachment cases returned before a magistrate.
(b) In all other cases, the entry should be upon the minutes or rule docket of the court.

§ 29-6-144. Publication of notice of levy.

(a) As soon as the attachment is levied upon property of the defendant, the clerk of the court shall make out, in pursuance of the order of publication, a memorandum or notice thereof, and cause same to be published forthwith in some convenient newspaper according to law.
(b) The publication shall be made for four (4) consecutive weeks in a newspaper published in the county in which the suit is brought, if any, and, if not, in some convenient newspaper to be designated in the order, the last publication to be at least one (1) week before the time fixed for the defendant's appearance.

§ 29-6-145. Contents of notice.

This memorandum or notice shall contain the names of the parties, the style of the court to which the attachment is made returnable, the cause alleged for suing it out, and the time and place at which the defendant is required to appear and defend the attachment suit.

§ 29-6-146. Notice mailed to nonresidents.

(a) Where publication is made for a nonresident defendant the clerk of the court, in which such suit is filed, shall, immediately after the first publication, mail a copy of the newspaper containing such publication to each of the nonresident defendants directed to each nonresident defendant's last known place of residence, if such place of residence is known or can be ascertained upon inquiry.
(b) The clerk shall make an entry thereof upon the rule docket showing that such notice has been mailed, for which the clerk shall receive a fee of twenty-five cents (25¢), to be collected by the clerk as other costs in the case.
(c) Any failure of the clerk to give such notice shall not invalidate or make voidable any proceeding in court against a nonresident defendant.

§ 29-6-147. Attachment in lieu of personal service.

The attachment and publication are in lieu of personal service upon the defendant, and the plaintiff may proceed, upon return of the attachment duly levied, as if the suit had been commenced by summons.

§ 29-6-148. Appearance of defendant.

(a) Should the defendant appear in time, the defendant may make defense, and the cause proceed as if the suit had been commenced by personal service of process.
(b) If the defendant fails to appear or make defense, the plaintiff may take judgment at law, or obtain a decree in equity, in like manner as if the defendant had failed to appear and defend upon personal service of process.

§ 29-6-149. Right to replevy — Amount of bond.

The defendant in an attachment suit may replevy the real or personal property attached by giving bond, with good security, payable to the plaintiff, in double the amount of the plaintiff's demand, or, at defendant's option, in double the value of the property attached, conditioned to pay the debt, interest, and costs, or the value of the property attached, with interest, as the case may be, in the event the defendant shall be cast in the suit.

§ 29-6-150. Replevy before return or sale.

The officer levying the attachment shall take the bond, if tendered, at any time before the officer has made sale of the property or return of the process, in which case the officer will fix the value of the property, and judge of the sufficiency of the security.

§ 29-6-151. Replevy after return.

After the return of the attachment, and at any time before sale of the property attached, the clerk of the court to which return is made shall take the replevy bond and fix the value of the property, and judge of the sufficiency of the security.

§ 29-6-152. Defective replevy bonds.

Replevy bonds are subject to the rules prescribed in §§ 8-19-302, 8-19-303.

§ 29-6-153. Filing of replevy bond.

The bond, if given to the officer levying the attachment, shall be returned by the officer with the attachment; and, whether given to such officer or to the clerk, it constitutes a part of the record.

§ 29-6-154. Judgment against defendant and sureties.

The court may enter up judgment or decree upon the bond, in the event of recovery by the plaintiff, against the defendant and the defendant's sureties, for the penalty of the bond, to be satisfied by delivery of the property, or its value, or payment of the recovery, as the case may be.

§ 29-6-155. Judgment on replevy bond.

If the property attached has been replevied by the defendant, the court, upon recovery by the plaintiff, is authorized to render judgment against the defendant and the defendant's sureties in the replevy bond, for the penalty of such bond, but to be satisfied by the payment of the value of the property, with interest from the date of the bond, or by the payment of the plaintiff's demand as ascertained, with interest and costs, or by the forthcoming of the property, as the case may be.

§ 29-6-156. Loss of replevied property.

The death or destruction of the property, without any fault of the defendant, after the replevy, is no defense to the liability on such bond.

§ 29-6-157. Application of property to judgment.

The property attached, if not replevied, with its proceeds or increase from the date of levy, shall be subjected to the satisfaction of the judgment or decree by sale upon such terms and conditions as may, in the discretion of the court, be deemed for the interest of all parties, by order of sale, or by other process necessary to effect the object.

§ 29-6-158. Land subjected to judgment of general sessions court.

In all attachment cases returnable before a judge of the court of general sessions, when land has been levied upon, either by the attachment or by execution under the judgment, and it is necessary to sell the land to satisfy the judgment, the papers shall be returned to the circuit court, and the land condemned, as in other cases of levy upon land by execution of a general sessions judge.

§ 29-6-159. Execution for unsatisfied balance.

When the property attached is not sufficient to satisfy the recovery, execution may issue for the residue, in case there shall have been appearance by, or personal service of summons on, the defendant.

§ 29-6-160. Stay of judgment.

(a) Where the defendant does not appear, the court may, and a general sessions judge shall, stay final judgment or decree, not exceeding twelve (12) nor less than six (6) months from the time of the return.
(b) Where the attachment is sued out because the defendant is a nonresident, the stay shall be allowed, unless sufficient cause appear to the contrary.

§ 29-6-161. Nonresident setting aside default judgment.

In all cases of attachment sued out because the defendant resides out of the state, or has merely departed or removed property from the state, the judgment or decree by default may be set aside, upon application of the defendant and good cause shown, within twelve (12) months thereafter, and defense permitted upon such terms as the court may impose.

3 Backlinks

§ 29-6-162. Action on attachment bond.

(a) In all other cases of judgment or decree by default, the defendant cannot deny or put in issue the ground upon which the attachment was issued, but may, at any time thereafter, and within one (1) year after the suing out of the attachment, commence an action on the attachment bond, and may recover such damages as the defendant has actually sustained for wrongfully suing out the attachment.
(b) If sued out maliciously, as well as wrongfully, the jury may, on the trial of such action, give vindictive damages.

§ 29-6-163. Persons under disability.

Persons laboring under the disabilities of infancy, or unsoundness of mind, at the rendition of the judgment or decree by default, have six (6) months, after the removal of such disability, to appear and show cause against such judgment or decree.

§ 29-6-164. Death of defendant.

The death of the defendant proceeded against by attachment, without personal service, whether the death occur before or after the commencement of the action, does not render the proceedings void, but the defendant's heirs or representatives, as the case may be, have the right, within three (3) years from the rendition of final judgment or decree, to make themselves parties by petition showing merits verified by affidavit, and contest the plaintiff's demand.

1 Backlink

29-6-165

§ 29-6-165. Title vested in purchasers.

The judgment or decree, if executed before it is set aside, under any of the provisions of §§ 29-6-161 — 29-6-164, will be a protection to all persons acting under it, and will confer a good title to all property sold by virtue thereof.

2 Backlinks

Chapter 7 Attachment by Garnishment

§ 29-7-101. Assets subject to garnishment.

Where property, choses in action, or effects of the debtor are in the hands of third persons, or third persons are indebted to such debtor, the attachment may be by garnishment.

§ 29-7-102. Wages earned and payable outside state.

Wages earned out of this state and payable out of this state shall be exempt from attachment or garnishment in all cases, where the cause of action arose out of this state, and it shall be the duty of garnishees in such cases to plead such exemption unless the defendant is actually served with process.

§ 29-7-103. Method of effecting — Answer.

(a) Attachment by garnishment is effected by informing the debtor of the defendant, or person holding the property of the defendant, that the property in the defendant's hands, or the hands of the person holding the property of the defendant, is attached, and by leaving with the defendant or such other person a written notice that the defendant or such other person is required to appear at the return term of the attachment, or before a judge of the court of general sessions, at a time and place fixed, to answer such questions as may be asked the defendant or such other person touching the property and effects of the defendant.
(b) The garnishee may appear and make an answer initially either in person or by filing a written answer.

§ 29-7-104. Notice to retain possession.

The notice should also require the defendant not to pay any debt due by the defendant, or thereafter to become due, and to retain possession of all property of the defendant, then or thereafter in defendant's custody or under defendant's control, to answer the garnishment.

§ 29-7-105. Liability on instrument.

The garnishee shall not be made liable upon a debt due by negotiable or assignable paper, unless such paper is delivered, or the garnishee completely exonerated or indemnified from all liability thereon, after the garnishee may have satisfied the judgment or decree.

§ 29-7-106. Return of notice.

A copy of the notice served upon the garnishee should be returned by the officer, with the attachment and levy, duly executed.

§ 29-7-107. Examination of garnishee.

The garnishee shall be examined as prescribed in § 26-2-204.

§ 29-7-108. Compensation of garnishee.

The garnishee is allowed the compensation and privileges of a witness, for the garnishee's attendance and answer, and all costs to be paid by the plaintiff.

§ 29-7-109. Motion to garnish other debtors.

If, upon the examination of any garnishee, it appears that there is any of the defendant's estate in the hands or under the control of any person not summoned, the court shall, upon the motion of the plaintiff, grant attachment, to be levied on the estate in the hands or under the control of such person, who shall be summoned and made liable as other garnishees.

§ 29-7-110. Exoneration by payment or delivery.

(a) A garnishee, at any time after answer, may be exonerated from further responsibility by paying over and delivering to the officer or court, before or after the return of the attachment, the money and property of the defendant, or so much thereof as may be equal to the property directed to be attached.
(b) Such property or money delivered or paid over may afterwards be treated as though attached in the usual manner.

§ 29-7-111. Death of garnishee.

If the garnishee die after having been summoned in garnishment, and pending the litigation, the proceedings may be revived by or against the deceased garnishee's representatives.

§ 29-7-112. Judgment against garnishee.

If it appears that the garnishee is indebted to the defendant, or has property and effects of the defendant subject to the attachment, the court may, in case recovery is had by the plaintiff against the defendant, give judgment against the garnishee for the amount of the recovery or of the indebtedness and property.

§ 29-7-113. Execution on maturity of debt.

If the debt of the garnishee to the defendant is not due, execution will be suspended until its maturity.

§ 29-7-114. Default by garnishee — Conditional judgment.

If, when duly summoned, the garnishee fail to appear and answer the garnishment, the garnishee shall be presumed to be indebted to the defendant to the full amount of the plaintiff's demand, and a conditional judgment shall be entered up against the garnishee accordingly.

§ 29-7-115. Notice of conditional judgment.

Upon this conditional judgment, a scire facias shall issue to the garnishee, returnable to the next term of the court, or to a day and place fixed before a general sessions judge, to show cause why final judgment should not be entered against the garnishee.

§ 29-7-116. Final judgment.

Upon the return of this scire facias duly served, or two (2) returns of “not to be found in my county,” the conditional judgment shall be made final, and execution issued accordingly.

§ 29-7-117. Conclusiveness of judgment.

The judgment in the garnishment suit, condemning the property or debt in the hands of the garnishee to the satisfaction of the plaintiff's demand, is conclusive as between the garnishee and defendant.

§ 29-7-118. Stay of general sessions judge's judgment.

The garnishee against whom a judgment for money is rendered by a judge of the court of general sessions, is entitled to the stay of execution allowed by law on general sessions judge judgments.

§ 29-7-119. Appeal.

An appeal lies in all garnishment cases, at the instance of the plaintiff, the defendant, or the garnishee.

Chapter 8 Change of Name — Correction of Errors in Birth Certificates

§ 29-8-101. Jurisdiction — Persons ineligible — Inmates.

(a) The circuit, probate and county courts have concurrent jurisdiction to change names and to correct errors in birth certificates on the application of a resident of the county in which the application is made.
(b)
1. (1) Notwithstanding any other law to the contrary, persons who have been convicted of the following offenses shall not have the right to legally change their names:
  1. (A) First or second degree murder; or
  2. (B) Any offense, the commission of which requires a sexual offender to register pursuant to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, compiled in title 40, chapter 39, part 2.
2. (2) If the court has reason to believe that the petition is being made to defraud or mislead, is not being made in good faith, will cause injury to an individual or to compromise public safety, then the petition shall be denied.
3. (3) If the person seeking to have the person's name changed has a felony conviction, other than for those offenses enumerated in subdivision (b)(1), then the petition is presumed to be made in bad faith, to defraud or mislead, to cause injury to an individual or to compromise public safety. The name change shall not be granted unless the individual requesting the name change proves by clear and convincing evidence that the petition is not based upon an intent to defraud or mislead, is made in good faith, will not cause injury to an individual and will not compromise public safety.
4. (4) This subsection (b) shall not apply if the name change is the result of a lawful marriage, marital dissolution or adoption.
(c) No public funds shall be expended to change the name of any person who is an inmate in the custody of the department of correction.

§ 29-8-102. Petition.

The application to change the name or to correct an error in a birth certificate shall be by petition, in writing, signed by the applicant and verified by affidavit, stating that the applicant is a resident of the county, and giving the applicant's reasons for desiring the change or correction.

§ 29-8-103. Clerk's fees.

The clerk's fee for services in proceedings under this chapter shall be the same as for like services in other cases, to be paid by the party petitioning.

§ 29-8-104. Judgment.

The court may order the name to be changed or the birth certificate to be corrected by entry of record reciting the petition and its reasons therefor.

§ 29-8-105. Effect.

Any person whose name is thus changed may thereafter be known and designated, sue and be sued, by the new name.

Chapter 9 Contempt of Court

§ 29-9-101. Officers authorized to punish.

Any officer authorized to punish for contempt is a court within the meaning of §§ 29-9-101 — 29-9-106.

1 Backlink

29-9-101

§ 29-9-102. Scope of power.

The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:
1. (1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice;
2. (2) The willful misbehavior of any of the officers of such courts, in their official transactions;
3. (3) The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;
4. (4) Abuse of, or unlawful interference with, the process or proceedings of the court;
5. (5) Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; or
6. (6) Any other act or omission declared a contempt by law.

2 Backlinks

§ 29-9-103. Punishment.

(a) The punishment for contempt may be by fine or by imprisonment, or both.
(b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and, except as provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00).

7 Backlinks

§ 29-9-104. Omission to perform act.

(a) If the contempt consists in an omission to perform an act which it is yet in the power of the person to perform, the person may be imprisoned until such person performs it.
(b) The person or if same be a corporation, then such person or corporation can be separately fined, as authorized by law, for each day it is in contempt until it performs the act or pays the damages ordered by the court.

1 Backlink

37-1-120(b)

§ 29-9-105. Performance of forbidden act.

If the contempt consists in the performance of a forbidden act, the person may be imprisoned until the act is rectified by placing matters and person in status quo, or by the payment of damages.

4 Backlinks

§ 29-9-106. Bail.

(a) Upon an attachment to answer for a contempt, except in not performing a decree, the officer executing the process shall take bail from the defendant as in other cases.
(b)
1. (1) The court ordering the attachment shall specify the penalty of such appearance bond.
2. (2) If the penalty is not fixed by the court, it shall be two hundred fifty dollars ($250).

4 Backlinks

§ 29-9-107. Profanity in court of record.

Any person who profanely swears or curses in the presence of any court of record commits a Class C misdemeanor.

§ 29-9-108. Local violations — Failure to appear.

(a)
1. (1) The judges of courts exercising municipal jurisdiction in counties having a metropolitan form of government are empowered to punish any person for contempt who, having been cited to appear in such court for the violation of a city, municipal or metropolitan government law or ordinance, willfully fails to appear without just cause on the designated day and at the designated time. The punishment for contempt in each such case is limited to a fine of ten dollars ($10.00) and imprisonment not exceeding five (5) days for each violation.
2. (2) This section shall also apply to judges of courts of general sessions when such judges are exercising municipal jurisdiction by hearing violations of city, municipal or metropolitan government laws or ordinances.
3. (3) The power to punish for contempt conferred by this section may not be used to punish persons who fail to appear for parking violations.
(b)
1. (1) The judges of courts exercising municipal jurisdiction over environmental violations relating to health, housing, fire, building and zoning codes of the municipal code, in any county having a population of not less than eight hundred thousand (800,000) according to the 1980 federal census or any subsequent federal census, shall punish any person for contempt who, having been cited for failure to appear in such court for the violation of a municipal government law or ordinance involving any violation relating to health, housing, fire, building and zoning codes or municipal law:
  1. (A) Willfully fails to appear without just cause on the designated day and at the designated time; or
  2. (B) Willfully fails to obey the court's order to correct a violation of the municipal code relating to health, housing, fire, building and zoning codes, within the designated day and at the designated time as given by court order.
2. (2) The punishment for contempt in each such case is limited to a fine of ten dollars ($10.00) and imprisonment not exceeding five (5) days for each violation.
3. (3) The power to punish for contempt conferred by this section may not be used to punish persons who fail to appear for parking violations.

1 Backlink

29-9-103(b)

Chapter 10 Patent Infringement Actions

§ 29-10-101. Chapter definitions.

In this chapter:
1. (1) “Affiliated person” means a person under common ownership or control of an intended recipient.
2. (2) “Intended recipient” means a person who purchases, rents, leases, or otherwise obtains a product or service in the commercial market that is not for resale in the ordinary business and that is, or later becomes, the subject of a patent infringement allegation.
3. (3) “Person” means any natural person, partnership, corporation, company, trust, business entity or association, and any agent, employee, partner, officer, director, member, associate, or trustee thereof.

§ 29-10-102. Frivolous or bad faith assertion of patent infringement — Activities not constituting violation — Exceptions to applicability of chapter.

(a) It is a violation of this chapter for a person, in connection with the assertion of a United States patent, to send, or cause any person to send, any written or electronic communication that states that the intended recipient or any affiliated person is infringing or has infringed a patent and bears liability or owes compensation to another person, if:
1. (1) The communication threatens litigation if compensation is not paid or the infringement issue is not otherwise resolved and there is a consistent pattern of such threats having been issued and no litigation having been filed;
2. (2) The communication falsely states that litigation has been filed against the intended recipient or any affiliated person; or
3. (3) The assertions contained in the communication lack a reasonable basis in fact or law because:
  1. (A) The person asserting the patent is not a person, or does not represent a person, with the current right to license the patent to, or to enforce the patent against, the intended recipient or any affiliated person;
  2. (B) The communication seeks compensation for a patent that has been held to be invalid or unenforceable in a final, unappealable or unappealed judicial or administrative decision;
  3. (C) The communication seeks compensation on account of activities undertaken after the patent has expired; or
  4. (D) The content of the communication fails to include such information necessary to inform an intended recipient or any affiliated person about the patent assertion by failing to include any one of the following:
    1. (i) The identity of the person asserting a right to license the patent to or enforce the patent against the intended recipient or any affiliated person;
    2. (ii) The patent number issued by the United States Patent and Trademark Office alleged to have been infringed; or
    3. (iii) The factual allegations concerning the specific areas in which the intended recipient or affiliated person's products, services, or technology infringed the patent or are covered by the claims in the patent.
(b) Nothing in this section shall be construed to be a violation of this chapter for any person who owns or has the right to license or enforce a patent to:
1. (1) Advise others of that ownership or right of license or enforcement;
2. (2) Communicate to others that a patent is available for license or sale; or
3. (3) Notify another of the infringement of the patent; or
4. (4) Seek compensation on account of past or present infringement, or for a license to the patent, provided that the person is not acting in bad faith.
(c) This chapter shall not apply to any written or electronic communication sent by:
1. (1) Any owner of a patent who is using the patent in connection with substantial research, development, production, manufacturing, processing or delivery of products or materials;
2. (2) Any institution of higher education as that term is defined in section 101 of the Higher Education Act of 1963 (20 U.S.C. § 1001);
3. (3) Any technology transfer organization whose primary purpose is to facilitate the commercialization of technology developed by an institution of higher education; or
4. (4) Any person or business entity seeking a claim for relief arising under 35 U.S.C. § 271(e)(2).

1 Backlink

29-10-103(c)

§ 29-10-103. Enforcement of chapter.

(a) The attorney general and reporter shall have the authority to enforce this chapter and conduct civil investigations and bring civil actions, as provided in § 8-6-109, title 8, chapter 6, part 4, and §§ 47-18-106 and 47-18-108.
(b) In an action brought by the attorney general under this chapter, the court may award or impose any relief available under § 29-10-104 or title 47, chapter 18.
(c) In addition to the relief provided for in § 29-10-104, upon a motion by the attorney general and reporter and a finding by the court that there is a reasonable likelihood that a person violated § 29-10-102, the court may require the person to post a bond in an amount equal to a good faith estimate of the costs to litigate a claim and amounts reasonably likely to be recovered if an action were to be brought pursuant to this section. A hearing shall be held if either party requests a hearing.

§ 29-10-104. Civil action — Available remedies and damages.

An intended recipient alleging a violation of this chapter may bring an action in any circuit or chancery court. A court shall award litigation costs and fees, including reasonable attorneys' fees, to a plaintiff who prevails in an action brought pursuant to this section. In addition, the court may award the following remedies to a plaintiff who prevails in an action brought pursuant to this chapter:
1. (1) Actual damages; and
2. (2) Punitive damages in an amount equal to three (3) times the actual damages.

2 Backlinks

Chapter 11 Contribution Among Tort-feasors

§ 29-11-101. Short title.

This chapter may be cited as the “Uniform Contribution Among Tort-Feasors Act.”

§ 29-11-102. Right of contribution among tort-feasors — Exceptions — Subrogation — Indemnity.

(a) Except as otherwise provided in this chapter where two (2) or more persons are jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them; but no right of contribution shall exist where, by virtue of intrafamily immunity, immunity under the workers' compensation laws of the state of Tennessee, or like immunity, a claimant is barred from maintaining a tort action for injury or wrongful death against the party from whom contribution is sought.
(b) The right of contribution exists only in favor of a tort-feasor who has paid more than the proportionate share of the shared liability between two (2) or more tort-feasors for the same injury or wrongful death, in accordance with the procedure set out in § 29-11-104, and the tort-feasor's total recovery is limited to the amount paid by the tort-feasor in excess of this proportionate share.
(c) There is no right of contribution in favor of any tort-feasor who has intentionally caused or contributed to the injury or wrongful death.
(d) A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable.
(e) A liability insurer, who by payment has discharged in full or in part the liability of a tort-feasor and has thereby discharged in full its obligation as insurer, may be subrogated to the tort-feasor's right of contribution to the extent of the amount it has paid in excess of the tort-feasor's proportionate share of the shared liability between two (2) or more tort-feasors for the same injury or wrongful death, in accordance with the procedure set out in § 29-11-103. This provision does not limit or impair any right of subrogation or assignment arising from any other relationship and causes of action for contribution or indemnity are fully assignable and transferable.
(f) This chapter does not impair any right of indemnity under existing law. Where one tort-feasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of tort-feasor's indemnity obligation.
(g) This chapter shall not apply to breaches of trust or of other fiduciary obligation.

§ 29-11-103. Determination of proportionate share of shared liability.

In determining the proportionate share of the shared liability between two (2) or more tort-feasors for the same injury or wrongful death, for purposes of pursuit of contribution among tort-feasors:
1. (1) The reasonable amount of the settlement and the relative degree of fault of the tort-feasors and the injured party or parties in bringing about the injury or wrongful death shall be compared, and the party seeking contribution shall be entitled to recover only to the extent that the party has paid more than the proportionate share of the common liability, with the proportionate share to be determined solely by comparison of the relative degrees of fault of the parties;
2. (2) If equity requires, the collective liability of some as a group shall constitute a single proportionate share; and
3. (3) Principles of equity applicable to contribution generally shall apply.

1 Backlink

29-11-102(e)

§ 29-11-104. Enforcement of contribution — Procedure — Limitation.

(a) Whether or not judgment has been entered in an action against two (2) or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action in the circuit or chancery courts to be tried according to the forms of chancery.
(b) Where a judgment has been entered in an action against two (2) or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion upon notice to all parties to the action; provided that, any issue as to indemnity may be determined at the hearing of such motion.
(c) If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by the tortfeasor to enforce contribution must be commenced within one (1) year after satisfaction of the judgment.
(d) If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, the tortfeasor's right of contribution is barred unless the tortfeasor has either:
1. (1) Discharged by payment the common liability within the statute of limitations period applicable to claimant's right of action against the tortfeasor and has commenced tortfeasor's action for contribution within one (1) year after payment; or
2. (2) Agreed while action is pending against the tortfeasor to discharge the common liability and has within one (1) year after the agreement paid the liability and commenced tortfeasor's action for contribution within one (1) year of payment.
(e) The recovery of a judgment for an injury or wrongful death against one (1) tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.
(f) The judgment of a court in determining the liability of the several defendants to a claimant for an injury or wrongful death after trial on the merits shall be binding among such defendants in determining their right to contribution or indemnity, except where a claimant commenced an action for injury or wrongful death prior to April 3, 1968.

1 Backlink

29-11-102(b)

§ 29-11-105. Effect of release or covenant not to sue upon liability of other tort-feasors.

(a) When a release or covenant not to sue or not to enforce judgment is given in good faith to one (1) of two (2) or more persons liable in tort for the same injury or the same wrongful death:
1. (1) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
2. (2) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
(b) No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater.

§ 29-11-106. Construction of chapter.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.

§ 29-11-107. Liability for damages in civil action governed by comparative fault — When doctrine of joint and several liability applies — Doctrines of vicarious liability and respondeat superior unaffected — Allocation of fault by trier of fact.

(a) If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.
(b) Notwithstanding subsection (a), the doctrine of joint and several liability remains in effect:
1. (1) To apportion financial responsibility in a civil conspiracy among two (2) or more at-fault defendants who, each having the intent and knowledge of the other's intent, accomplish by concert an unlawful purpose, or accomplish by concert a lawful purpose by unlawful means, which results in damage to the plaintiff; and
2. (2) Among manufacturers only in a product liability action as defined in § 29-28-102, but only if such action is based upon a theory of strict liability or breach of warranty. Nothing in this subsection (b) eliminates or affects the limitations on product liability actions found in § 29-28-106.
(c) Nothing in this section eliminates or affects the doctrines of vicarious liability or respondeat superior.
(d) Nothing in this section limits the ability of the trier of fact to allocate fault to a nonparty to the suit, including, but not limited to, an immune third party or a settling party, person, or entity. Allocations of fault to nonparties shall be used only to determine the liability of named parties and shall not subject nonparties to liability in the action in which the allocation occurred or in any other action.
(e) Nothing in this section eliminates or diminishes:
1. (1) The filing of cross-claims or counterclaims against any party or third party under Tennessee Rules of Civil Procedure 13 and 14;
2. (2) The assertion by a party of rights to contribution or indemnity;
3. (3) The assertion by a party of comparative fault under Tennessee Rule of Civil Procedure 8.03;
4. (4) The doctrine of superseding and independent intervening cause; or
5. (5) Any defenses or immunities that exist as of July 1, 2013.
(f) This section shall not prevent parties from entering into a legally enforceable contract that allocates fault in a civil action among the parties to the contract.

Chapter 12 Creditors' Bills

§ 29-12-101. Fraudulent conveyances and other devices.

Any creditor, without first having obtained a judgment at law, may file the bill in chancery for the creditor, or for the creditor and other creditors, to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering and delaying creditors, and subject the property, by sale or otherwise, to the satisfaction of the debt.

1 Backlink

29-12-104

§ 29-12-102. Attachment and injunction.

Upon filing the bill, writs of attachment and injunction may be granted, on complainants giving bond and security in such sums as the chancellor or judge may order, conditioned to comply with the orders and decrees of the court, and to pay such damages as may be awarded or recovered for wrongfully suing out such attachment or injunction.

§ 29-12-103. Intervention by other creditors.

If the bill is filed by one (1) creditor for the creditor and others, the other creditors may make themselves parties at any time before final decree, by petition and execution of prosecution bonds, or by agreeing to join in the bonds required in the case of the original complaint, and in a sufficient penalty, to pay their proportional part of the recovery on such bonds.

1 Backlink

29-12-104

§ 29-12-104. Powers of court.

The court has the same power and jurisdiction in all respects to set aside fraudulent conveyances and other fraudulent devices, in the cases mentioned in §§ 29-12-101 — 29-12-103, and to subject the property, by sale or otherwise, to the payment of debts, as if the creditor had obtained judgment, and execution thereon had been returned unsatisfied.

§ 29-12-105. Judgment without fraud.

In case the complainant fails to establish the fraud, the court shall proceed to render judgment on the complainant's claim, ascertaining the amount, when disputed, by reference to the clerk and master, where deemed advisable, or by an issue to be tried by a jury; but the complainant shall pay all costs, except such as are incident to taking the judgment.

§ 29-12-106. Limitation of actions.

In no case shall the limitation of actions be held to commence running in favor of a fraudulent or voluntary possessor, until the creditor, to be affected by the fraudulent or voluntary conveyance, has a right of action to test the validity of such conveyance.

§ 29-12-107. Corporate property.

The creditors of a corporation may also, without first having obtained a judgment at law, file a bill in the court of chancery, to attach the property of the corporation, and subject the same, by sale or otherwise, to the satisfaction of their debts, when the corporate franchises are not used, or have been granted to others in whole or in part.

§ 29-12-108. Receiver for corporate property.

In such cases the court may appoint a receiver, take an account of the affairs of the corporation, and apply the property and effects to the payment of debts pro rata, and divide the surplus, if any, among the stockholders.

§ 29-12-109. Bill where legal remedies insufficient.

In all cases where personal service of process cannot be made at law, and where no original attachment at law will lie, and no judgment at law can be obtained, and also in cases where the demand is purely of an equitable nature, the court of chancery has jurisdiction to subject legal and equitable interests in every kind of property, with the exception stated in § 26-4-101, the lien to commence from the filing of the bill (but as to subsequent purchasers and encumbrancers from registration) if the facts are verified by affidavit, and injunction is granted.

Chapter 13 Criminal Injuries Compensation

Part 1 General Provisions

§ 29-13-101. Short title.

This chapter and § 40-24-107 shall be known and may be cited as the “Criminal Injuries Compensation Act of 1976.”

1 Backlink

29-13-409

§ 29-13-102. Chapter definitions.

As used in this chapter and § 40-24-107, unless the context otherwise requires:
1. (1) “Child” means any individual, adopted or natural born, entitled to take as a child under the laws of this state by intestate succession from the parent whose relationship is involved and also includes a stepchild;
2. (2) “Claimant” means any person or persons filing a claim for compensation under this chapter on such person's or persons' own behalf, the guardian of a victim if the victim is a minor, the legal representative of the estate of a deceased victim, or the dependents of the victim;
3. (3) “Commission” means the Tennessee claims commission created pursuant to § 9-8-301;
4. (4) “Court” means the circuit courts of the state of Tennessee, for the purposes of filing a claim, and any court of the state which has the jurisdiction to try a crime against person or property, for the purpose of assessing the costs provided for in § 40-24-107, except general sessions courts or municipal courts may not impose such costs;
5. (5) “Dependents” means such relatives of a deceased victim as were receiving substantial support or needed services from the victim at the time of the victim's death, and includes the child of such victim born after such victim's death;
  1 Backlink
  - 29-13-103(a)(6)
6. (6) “Division” means the division of claims and risk management created pursuant to § 9-8-401;
7. (7) “Family,” when used with reference to a person, includes:
  1. (A) Any person related to such person within the third degree of consanguinity or affinity; or
  2. (B) Any person living in the same household as such person;
8. (8) “Guardian” or “legal guardian” means a person having the legal authority to provide for the care, supervision, and control of a minor child as established by law or court order;
9. (9) “Minor” means any person who has not attained the age of eighteen (18) years;
10. (10) “Offender” means a person who has or is alleged to have committed a crime;
11. (11) “Out of pocket expenses” means unreimbursed or unreimbursable expenditures or indebtedness reasonably incurred for medical care or other services reasonably necessary as a result of the personal injury or death upon which a claim is based;
12. (12) “Relative” means a spouse, parent, grandparent, stepparent, child, grandchild, brother, sister, half brother, half sister and a spouse's parents or stepparents; and
13. (13) “Victim” means a person who suffers personal injury or death as a direct and proximate result of any act of a person which is within the description of any of the offenses specified in § 29-13-104.

4 Backlinks

§ 29-13-103. Burden of proof — Documentation.

(a) The claimant has the burden of presenting to the division all facts necessary in determining whether the claimant is entitled to compensation under this part. No claimant shall be entitled to compensation unless the claimant proves by a preponderance of the evidence every requirement under this part for entitlement to compensation, including, but not limited to, the following:
1. (1) The occurrence of an offense as defined in § 29-13-104;
2. (2) The offense proximately caused personal injury to or death of the victim;
3. (3) The claimant is eligible for compensation pursuant to § 29-13-105;
4. (4) The claimant has fully cooperated with the police and the district attorney general in the investigation and prosecution of the offender, except in cases involving a victim of human trafficking where it is determined that the victim's cooperation may be impacted due to the victim's age, physical condition, psychological state, cultural or linguistic barriers, or any other health or safety concern that jeopardizes the victim's well-being;
5. (5) The amount of losses or expenses incurred by the claimant that are eligible for reimbursement pursuant to §§ 29-13-106 and 29-13-107;
6. (6) If the claim is based upon the death of the victim and an award in excess of funeral and burial expenses is being sought, that the claimant was a dependent of the victim within the meaning of § 29-13-102(5); and
7. (7) The victim or a member of the victim's family reported the offense to the proper law enforcement authorities within the time prescribed in § 29-13-108(a).
(b) The claimant must present written documentation to establish the facts required by subsection (a). Such documentation shall include, where appropriate, all medical and funeral bills, lost wage verifications, W-2 forms, death and birth certificates, and the incident report from the appropriate law enforcement agency.

§ 29-13-104. Offenses to which compensation applies.

Payment of compensation shall be made to the claimant in accordance with this chapter for personal injury to or death of the victim which resulted from:
1. (1) An act committed in this state, which, if committed by a mentally competent, criminally responsible adult, would constitute a crime under state or federal law; provided, that an injury or death inflicted through the use of a motor vehicle or watercraft shall be eligible for compensation under this chapter only under the following circumstances:
  1. (A) Evidence submitted clearly shows that the operator of the motor vehicle or watercraft directly causing the death or injury was acting with criminal intent to intentionally inflict injury or death;
  2. (B) The operator of the motor vehicle or watercraft directly causing the death or injury was operating the motor vehicle or watercraft as is prohibited by § 55-10-401; provided, that claims for any personal injury or loss alleged to have been incurred as a result of the personal injury or death of a passenger in such a motor vehicle or watercraft shall be subject to § 29-13-119; or
    2 Backlinks
    
    29-13-119(a)
    29-13-119(b)
  3. (C) The crime involved the failure to stop at the scene of an accident in violation of § 55-10-101, which directly resulted in serious bodily injury or death to the victim; and the evidence shows that the operator of the motor vehicle knew or reasonably should have known that death or serious bodily injury had occurred.
2. (2) An attempt to prevent or the actual prevention of a crime or an attempted crime under state or federal law in this state which the victim reasonably believed had occurred or was about to occur;
  1 Backlink
  - 29-13-109(c)
3. (3) The apprehending of an individual who had committed a felony in the presence of the victim, if, under the circumstances, the victim could have reasonably believed that a felony had occurred; or
4. (4) Any of the foregoing acts committed or taken in another state if the victim was a resident of this state at the time the crime or act occurred and the claimant's request for compensation from the state in which the crime or act occurred is not honored.

4 Backlinks

§ 29-13-105. Persons eligible for compensation.

(a) Except as otherwise provided, the following person or persons shall be eligible for compensation pursuant to this chapter:
1. (1) A victim of a crime;
2. (2) In the case of the death of the victim, a dependent of the victim;
3. (3) In case of the death of a victim, where the compensation is for unreimbursed or unreimbursable mental health counseling or treatment made necessary by the death of the victim, a relative of the victim;
  1 Backlink
  - 29-13-107(6)
4. (4) In the case of the death of the victim, where the compensation is for unreimbursed or unreimbursable funeral or burial expenses, to:
  1. (A) The legal representative of the estate of the victim; or
  2. (B) If no estate of the victim is opened, to:
    1. (i) A relative of the victim as defined in § 29-13-102;
    2. (ii) The victim's aunt, uncle, or cousin; or
    3. (iii) An individual related to the victim by blood;
5. (5) In the case of the personal injury of the victim, where the compensation is for expenses incurred by any person responsible for the maintenance of that victim, to that person;
6. (6) In the case of a sexually-oriented crime committed against a victim who is under eighteen (18) years of age, where the compensation is for unreimbursed or unreimbursable mental health counseling or treatment made necessary by the sexually-oriented crime, any sibling or non-offending custodial parent of the victim, or both; or
7. (7) In the case of domestic assault committed against the victim, where the compensation is for unreimbursed or unreimbursable mental health counseling or treatment made necessary by the crime, any child of the victim who witnesses the crime and who is under eighteen (18) years of age.
(b) A person who is criminally responsible for the crime upon which a claim is based, or an accomplice of such person, or anyone who has contributed to the crime in any respect, shall not be eligible to receive an award with respect to a claim under this chapter.
(c) No compensation shall be awarded a victim who was, at the time of the personal injury or death, a member of the offender's family, if it is determined that any benefit would accrue, either directly or indirectly, to the offender. This subsection (c) shall not be construed to automatically disqualify a victim who was a member of the offender's family at the time of the injury or death.
(d) A person who has been convicted of an offense under federal law with respect to any time period during which the person is delinquent in paying a fine, other monetary penalty, or restitution imposed for the offense shall not be eligible to receive an award with respect to a claim under this chapter. This subsection (d) shall not apply until the date on which the United States attorney general, in consultation with the director of the administrative office of the United States courts, issues a written determination that a cost-effective, readily available criminal debt payment tracking system operated by the agency responsible for the collection of criminal debt has established cost-effective, readily available communications links with entities that administer federal victim compensation programs that are sufficient to ensure that victim compensation is not denied to any person except as authorized by law.

2 Backlinks

§ 29-13-106. Losses or expenses reimbursable.

(a) Payment of compensation under this chapter shall be ordered for losses or expenses as defined in this section only upon submission of written documentation which clearly shows that such losses and expenses were actually and reasonably incurred by the claimant. The burden of proof of losses and expenses shall be upon the claimant. The payment of compensation under this chapter shall be awarded for:
1. (1) Expenses actually and reasonably incurred as a result of the personal injury or death of the victim, including, but not limited to, actual expenditures of moneys for or indebtedness resulting from medical services, hospital services, funeral and burial expenses;
2. (2) “Permanent partial disability” or “permanent total disability” as defined in § 29-13-107;
3. (3) Expenses actually and reasonably incurred as the result of the claimant traveling to and from the trial of the defendant or defendants alleged to have committed an offense as defined in § 29-13-104, regardless of whether the claimant is called as a witness, and expenses actually and reasonably incurred as the result of the claimant traveling to and from appellate, post-conviction or habeas corpus proceedings resulting from the trial of a defendant or defendants alleged to have committed a compensable offense as defined in § 29-13-104. Any award made under the preceding sentence to a claimant shall not exceed a cumulative total of one thousand two hundred fifty dollars ($1,250) for all such travel. For the purposes of subdivision (a)(3) “claimant” means the victim, the guardian of a victim if the victim is a minor, the legal representative of the estate of a deceased victim, or relative of the victim as defined in § 29-13-102. As used in the preceding sentence, “legal representative of the estate of a deceased victim” shall not be construed or implemented to include any attorney who, for a fee, serves as legal representative of the estate of such victim. In no case shall compensation be awarded under this subdivision (a)(3) to more than four (4) claimants as a result of the “same criminal act” as defined in subsection (e). Further, no award shall be made to a claimant under this subdivision (a)(3) if the claimant is otherwise eligible for the payment of travel expenses by the state or any county of this state as a result of the claimant attending the trial as a witness;
4. (4) Reasonable out-of-pocket expenses incurred for cleaning supplies, equipment rental and labor needed to clean the scene of a homicide, sexual assault or aggravated assault, if the scene was the residence of the victim or a relative of the victim as defined in § 29-13-102. “Cleaning the scene” means to remove, or attempt to remove, from the crime scene blood, dirt, stains or other debris caused by the crime or the processing of the crime scene;
  1 Backlink
  - 29-13-107(5)
5. (5) Pecuniary loss to the dependents of a deceased victim;
6. (6) Any other pecuniary loss, including lost wages, as defined in § 29-13-107, resulting from the personal injury or death of the victim that is determined to be reasonable;
7. (7) The victim's reasonable moving expenses, storage fees and fees for transfer of utility service if the move is a direct result of an assault committed upon such victim at the victim's residence, provided that the victim shall not receive compensation for more than two (2) moves resulting from the assault; and
8. (8) Reasonable costs of cleaning, repairing or replacing eyeglasses and hearing aids owned by the victim that were damaged or destroyed by the crime or the processing of the crime scene, and the reasonable costs of repairing or replacing personal property owned by the victim or a relative of the victim as defined in § 29-13-102 that was damaged or destroyed in processing the scene of a homicide, sexual assault or aggravated assault if the scene was the residence of the victim or the relative of the victim who owned the property.
(b) In no case will any compensation be awarded for any damage to real or personal property, except as provided in subdivision (a)(8). For the purpose of this section, “dental devices”, “artificial prosthetic devices” and “medically related devices” are not considered personal property.
(c) Compensation must not be awarded for any personal injury or loss alleged to have been incurred as a result of pain and suffering, except for victims of the crime of rape, victims of a human trafficking offense, and victims of a crime involving sexual deviancy, including minors who are victims of the crimes contained in § 39-13-314, § 39-13-316, §§ 39-13-502 – 39-13-505, § 39-13-522, § 39-15-302, § 39-17-902, and §§ 39-17-1003 – 39-17-1005, or any attempt, conspiracy, or solicitation to commit such offenses.
(d) Except as provided in subdivision (a)(3), no award shall be made unless the claimant has incurred a minimum out of pocket loss of one hundred dollars ($100) or has lost at least two (2) continuous weeks earnings or support, unless it is determined that the interest of justice would not be served by such a limitation.
(e) No compensation shall be awarded on account of the same criminal act in an amount in excess of thirty thousand dollars ($30,000), except as provided in subsection (h). All awards granted under subsection (a) shall be aggregated in determining this amount. For the purposes of this chapter, where a victim is injured as a result of two (2) or more criminal acts that occur:
1. (1) Sequentially, but involve the same criminal or group of criminals, and the same victim or group of victims; and
2. (2) The victim or victims remain in the presence or under the control of the criminal or criminals, then the injuries shall be deemed to have resulted from a single criminal act. For the purposes of this chapter, where a minor is the victim of crimes listed in subsection (c), and there are multiple occurrences of one (1) or more of these listed crimes by a single criminal over a period of time, then such injuries shall be deemed to have resulted from a single criminal act.
1 Backlink
- 29-13-107(7)
(f)
1. (1) Any award shall be reduced by the amounts of payment already received or any amounts which claimant is legally entitled to receive as a result of the injury:
  1. (A) From or on behalf of the offender;
  2. (B) From any other public or private source; or
  3. (C) As an emergency award pursuant to § 29-13-114.
2. (2) It is the intent of this subsection (f) to prohibit double recoveries by criminal victims, but it shall not be construed to prohibit recovery of compensation under this chapter if the recovery from the sources set forth in subdivisions (f)(1)(A) and (B) is insufficient to reimburse the victim for total compensable injuries as set forth in this chapter. Recoveries under subdivisions (f)(1)(A) and (B) shall be considered as primary indemnification, and recoveries under subsection (a) shall be limited to compensating for injuries over and above any recoveries under subdivisions (f)(1)(A) and (B). In claims involving the death of a victim, the proceeds from any life insurance contracts payable to the victim's dependent or dependents making the claim for compensation shall not be considered a source of reimbursement.
(g) If two (2) or more persons are entitled to compensation as a result of the death of the victim, amounts shall be apportioned among claimants in proportion to their loss.
(h) It is the intent of the general assembly that the maximum award pursuant to subsection (e) equal no less than one hundred five percent (105%) of the national average of the maximum compensation award provided by the fifty (50) states within the United States, the District of Columbia and the United States Virgin Islands. No later than October 1 of each year, the treasurer shall compare the maximum award limit for this program with the average of the maximum award limits of the other states; provided, however, that the other states have a maximum award limit which is ascertainable or set in a manner similar to that of Tennessee. In the event that any of the states or territories do not have an overall maximum award, the treasurer shall eliminate that state or territory from comparison. If the treasurer determines that the maximum is less than one hundred five percent (105%) of the national average, the treasurer shall adjust the maximum award to an amount equal to one hundred five percent (105%) of the national average; provided, however, that the maximum award shall be rounded up to the nearest one hundred dollars ($100). Any adjustment made pursuant to this provision shall be effective on July 1 of the next fiscal year and shall apply to claims filed for crimes occurring on or after such date. The treasurer shall make any adjustment to the maximum award by rule promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

3 Backlinks

§ 29-13-107. Standards for determining amount of compensation — Uniform application of chapter.

For purposes of determining the amount of compensation to be awarded under § 29-13-106, the following standards shall be utilized in order to ensure the uniform application of this chapter:
1. (1) Any award made for permanent partial or permanent total disabilities proximately caused by a violent crime is to be based upon those schedules of compensation allowable by the workers' compensation statutes, found in § 50-6-207, in effect at the time of the commission of the act giving rise to such claim, for disabilities of a similar nature; provided, however, that the sixty-six and two-thirds percent (66⅔%) rate prescribed in the workers' compensation statutes shall not be used in determining the amount of any award hereunder. Instead, such rate shall be eighty-five percent (85%) of the claimant's average weekly wage. Any award made for lost wages proximately caused by a violent crime is to be based upon those schedules of compensation for temporary total disability allowable by the workers' compensation statutes, found in § 50-6-207, in effect at the time of the commission of the crime giving rise to such claim; provided, however, that the sixty-six and two-thirds percent (66⅔%) rate prescribed in the workers' compensation statutes shall not be used in determining the amount of any award hereunder. Instead, such rate shall be eighty-five percent (85%) of the claimant's average weekly wage. The board of claims is authorized to adopt such other standard as is required by federal law or regulation in order to qualify for matching federal funds under the Victims of Crime Act of 1984, compiled generally in 42 U.S.C. § 10601 et seq., if the board of claims determines that the federally required standard is both reasonable and in the financial interest of the criminal injuries program;
2. (2) Excepting claims for disabilities, death, or pain and suffering where the commission of a sexually-oriented crime is involved, awards are to be payable only for those pecuniary losses actually and reasonably incurred as the result of personal injuries received through the commission of a violent crime;
3. (3) Any award based on the pain and suffering experienced by a claimant victimized by a sexually-oriented crime is to be made in an amount deemed necessary and appropriate, not to exceed three thousand dollars ($3,000), taking into account the particular circumstances involved in such crime;
4. (4) Any award made for funeral and burial expenses shall not exceed six thousand dollars ($6,000);
5. (5) Any award made for expenses under § 29-13-106(a)(4) shall not exceed three thousand dollars ($3,000);
6. (6) Any award made for mental health counseling or treatment pursuant to § 29-13-105(a)(3), (a)(6) or (a)(7) shall be made in an amount deemed necessary and appropriate, not to exceed three thousand five hundred dollars ($3,500); and
7. (7) Except as otherwise provided in subdivision (6), any award made for medical or medical-related expenses, including, but not limited to, dental, chiropractic, hospital, physical therapy and nursing services, shall be made in an amount of seventy-five percent (75%) of the billed charges if there exists a sufficient amount left in the maximum award rate stipulated in § 29-13-106(e). If an insufficient amount exists in the maximum award rate to pay seventy-five percent (75%) of the billed charges, the billed charges shall be reduced to the amount remaining to bring the total compensation awarded on account of the criminal act to the maximum rate specified in § 29-13-106(e). Any medical provider or hospital that accepts payment under this part for medical or medical-related expenses or services shall accept the payment as payment in full and shall not bill any balance of those expenses to the victim or the claimant if the total payments made under this part to any such provider or hospital equal seventy-five percent (75%) of the billed charges. This subdivision (7) does not prohibit the medical provider or hospital from seeking reimbursement from the victim or the claimant for the difference, if any, between seventy-five percent (75%) of the billed charges and the amount paid by the division under this subdivision (7). This subdivision (7) does not apply to reimbursements for forensic medical examinations provided under § 29-13-118. Reimbursements for forensic medical examinations are governed by § 29-13-118.
  1 Backlink
  - 29-13-111(d)(3)

4 Backlinks

§ 29-13-108. Claims for compensation — Procedure.

(a) A claim for compensation must be filed not later than two (2) years after the occurrence of the crime upon which the claim is based, two (2) years after the death of the victim, or two (2) years after any mental or physical manifestation or injury is diagnosed as a result of an act committed against a minor that would constitute a criminal offense under §§ 39-13-502 – 39-13-505, § 39-13-522, § 39-15-302, § 39-17-902, or §§ 39-17-1003 – 39-17-1005, or an attempt, conspiracy, or solicitation to commit such offenses; provided, that upon good cause shown, the time period for filing such claim may be extended either before or after the expiration of the filing period. A claim cannot be filed until the crime upon which the claim is based has been reported by the victim, or a member of the victim's family, to the proper authorities, and in no case may an award be made where the law enforcement records show that such report was made more than forty-eight (48) hours after the occurrence of such crime unless, for good cause shown, it is found that the delay was justified. Good cause for the failure of a victim or a member of the victim's family to report a crime may be found if the victim is:
1. (1) Physically unable;
2. (2) A victim of sexual assault;
3. (3) A victim of domestic abuse; or
4. (4) A victim of human trafficking.
1 Backlink
- 29-13-103(a)(7)
(b) Each claim shall be filed with the division, in person or by mail. The division is authorized to prescribe and distribute forms for the filing of claims for compensation. The claim shall set forth the name of the victim and that of the claimant, if different than that of the victim, the address of the victim and/or claimant, the county wherein the crime is alleged to have occurred, the name, if known, of the alleged offender, a brief statement of the alleged crime, the date and time the alleged crime was reported to the police, the nature of compensation claimed and the race, sex, national origin and disability, if any, of the victim, and any other information required by the board of claims in order to satisfy federal regulations issued under the Victims of Crime Act of 1984.
(c) Within ten (10) days after receipt of the claim, the division shall notify the district attorney general. If a prosecution is pending or imminent for an offense arising out of the crime upon which the claim is based, the division or commission, whichever is applicable, shall suspend all action on the claim upon application of the district attorney general. In such event, the district attorney general shall notify the division or commission, whichever is applicable, within ten (10) days after completion of any such prosecution. Proceedings may further be suspended in the interest of justice if a civil action arising from such offense is pending or imminent. The division or commission, whichever is applicable, shall notify the claimant of any suspension under this subsection (c). A district attorney general who fails to supply the division with the report required in subsection (d) within one hundred eighty (180) days of the division's receipt of the claim shall be deemed to have waived the right to apply for a suspension under this section, unless good cause is shown for such failure.
(d) Unless the claim is suspended under subsection (c), the division shall investigate every claim for compensation and shall make every effort to honor or deny each claim within ninety (90) days of receipt of the claim. In investigating the claim, the division shall request from the appropriate district attorney general a report which shall present any information the district attorney general may have in support of or in opposition to the claim. If the claim is denied, the division shall so notify the claimant and inform the claimant of the reasons therefor and of such claimant's right to file the claim with the claims commission within ninety (90) days of the date of the denial notice. If the claim is honored, the division shall so notify the claimant and inform the claimant of the conditions of the settlement offer and of such claimant's right to file the claim with the claims commission within ninety (90) days of the date of the settlement notice if the conditions of the settlement offer are unacceptable. If the division fails to honor or deny the claim within the ninety-day settlement period, the division shall so notify the claimant and shall automatically transfer the claim to the administrative clerk of the commission; however, if the division has not received the report of appropriate district attorney general within the ninety-day settlement period, the division may, in its discretion, suspend action on the claim for an additional period not exceeding ninety (90) days. The division shall notify the claimant of any such suspension. Unless the claim is suspended under subsection (c), the division is authorized to transfer any claim filed under this chapter to the commission prior to the expiration of the ninety-day settlement period. The appropriate district attorney general shall be notified of the action of the division on each claim.
(e)
1. (1) Upon filing or transferring a claim for compensation to the commission, the claim shall be considered, determined and subject to appeal in the manner set forth in § 9-8-403. If a claimant consents to having the claimant's claim proceed upon affidavits filed with the commission without a hearing, the state shall be deemed to have waived a hearing on the claim unless the district attorney general requests a hearing within sixty (60) days after the claim is filed with, or transferred to, the claims commission. The district attorney general shall investigate the claim prior to the opening of formal commission proceedings and shall present any information such district attorney general may have in support of or in opposition to the claim. The report of the district attorney general and any police or offense reports attached thereto shall be sufficient compliance therewith; provided, such reports are accompanied by an affidavit of the district attorney general or law enforcement officer, where applicable, verifying the contents of the reports. Notwithstanding the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence, the affidavit and report of the district attorney general and the affidavit and report of the law enforcement officer shall be made a part of the record before the commission to the same extent as though the district attorney general or the appropriate law enforcement officer had been present and testified to the matters stated therein. The matters stated in such reports shall be presumed true in the absence of a preponderance of the evidence to the contrary. The personal attendance of the district attorney general and the law enforcement officer may be commanded only if personal attendance is necessary to resolve a good faith dispute concerning the accuracy of information furnished by the district attorney general or law enforcement officer. Where personal attendance is required, the claimant shall serve the appropriate district attorney general and the appropriate law enforcement officer with a subpoena at least fourteen (14) days prior to the hearing which shall contain a clause which reads: “The procedure authorized pursuant to § 29-13-108(e) will not be deemed sufficient compliance with this subpoena.” Notwithstanding any other law to the contrary, if the district attorney general attends the proceeding, the district attorney general may present into evidence any police or offense reports and any other reports generated through the district attorney general's investigation of the claim.
2. (2) The claimant may present evidence and testimony on such claimant's own behalf, or the claimant may retain counsel. Any hearing held by the commission pursuant to this chapter which involves a claim based upon a sexually oriented offense shall, upon request of the claimant or counsel, be held in chambers unless good cause exists to the contrary. With the consent of the commission, the district attorney general may stipulate the circumstances of the claimant's victimization in lieu of direct testimony by the claimant.
1 Backlink
- 29-13-108(e)(1)
(f) Upon filing or transferring a claim for compensation to the commission, the division shall attach to the claim all documentation presented by the claimant in support of the claim, evidence received or considered, proposed findings, staff recommendations, memoranda, investigative reports and data submitted to the division. The documents shall be accompanied by an affidavit of an employee of the division, stating in substance that the affiant is a duly authorized custodian of the documents and has authority to certify the documents, and that the documents are true copies of all documents described in this subsection (f). Notwithstanding the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence, the affidavit and the documents submitted to the commission by the division shall constitute a part of the record of the commission and shall be considered in adjudicative proceedings under this part, including judicial review thereof.
(g) Notwithstanding any other law to the contrary, if the division denies a claim on the basis that the claimant does not meet the eligibility requirements for compensation under this part and the claimant appeals the denial to the commission, or if the division transfers the claim to the commission as a result of its inability to honor or deny the claim within the ninety-day settlement period, the commission shall consider the claim for the sole purpose of determining whether the claimant meets such eligibility requirements. Such eligibility requirements may include a determination as to whether the claimant has shown good cause for failing to file the claim within the one-year period as prescribed in subsection (a). Such eligibility requirements may include a determination as to whether the claimant has shown good cause for failing to file the claim. If the commission determines the claimant meets the eligibility requirements to receive compensation under this part, the commission shall enter an appropriate order reflecting such determination and remand the claim to the division of claims and risk management for the purpose of determining the amount of compensation to which the claimant is entitled and the manner in which such compensation shall be paid pursuant to § 29-13-111. Such order shall include the findings of fact enumerated in § 29-13-109(b)(2)(A)-(H) and in § 29-13-109(b)(2)(L)-(O).
1 Backlink
- 29-13-109(b)(2)
(h) Notwithstanding § 9-8-406 or any provision of this part to the contrary, the department of treasury may, at its sole discretion, submit a report to the commission which explains the department's action on the claim. Any such report shall be filed within the time allowed for the filing of a responsive brief by a party. The department shall serve copies of the report upon the claimant and the district attorney general. Any such report shall be considered by the commission without oral argument by the department.
(i) The commission shall attach to its decision all documentation presented in support of a claim for which compensation is awarded, as well as an executed subrogation agreement. The administrative clerk of the commission shall, within five (5) days of receipt of the order, notify the claimant in writing of the decision and forward to the division a certified copy of the decision.
(j) The commission may, at any time, on its own motion or on the application of the claimant, vary any award for the payment of compensation made under this chapter in such manner as the commission deems appropriate, whether as to the terms of the order or by increasing the amount of the award, or otherwise.
1 Backlink
- 29-13-109(f)

§ 29-13-109. Claims — Requirements — Judicial determination — Awards.

(a) No award may be made under this section unless the claimant shall have shown, supported by a preponderance of the evidence, that:
1. (1) Such an act did occur; and
2. (2) The injury or death proximately resulted from such act.
(b)
1. (1) All decisions granting an award under this chapter shall be in writing and shall set forth the findings of fact and the decision whether compensation is due under this chapter.
2. (2) Except as provided in § 29-13-108(g), the findings of fact shall include, but not be limited to, those enumerated in this subdivision (b)(2). The findings of fact shall include:
  1. (A) The name and address of the victim;
    1 Backlink
    
    29-13-108(g)
  2. (B) The name and address of the claimant, if different than the victim;
  3. (C) Whether the claimant is eligible for compensation pursuant to § 29-13-105;
  4. (D) The date, place and nature of the offense giving rise to the claim, including a finding that the offense is within the meaning of § 29-13-104;
  5. (E) A statement of the injuries suffered by the victim;
  6. (F) Whether the victim contributed to the crime in any respect;
  7. (G) The name and address of the offender or, if not known, a statement to that effect;
  8. (H) Whether the claimant has fully cooperated with the police and the district attorney general in the investigation and prosecution of the offender;
  9. (I) Whether the claimant has received or is eligible to receive any benefits, payments or awards from any other source;
  10. (J) Whether the award includes payment of expenses for mental health counseling;
  11. (K) A statement of the losses or expenses incurred by the claimant that are eligible for reimbursement pursuant to §§ 29-13-106 and 29-13-107 which have been supported by evidence presented, with such documentation attached;
  12. (L) Whether the claimant has executed a subrogation agreement;
    1 Backlink
    
    29-13-108(g)
  13. (M) If compensation for pain and suffering is being made, a finding that the offense was sexually oriented and the victim did experience pain and suffering as a result of commission of the offense;
  14. (N) If the offense giving rise to the claim involved use of a motor vehicle or watercraft, a finding that the operator of the motor vehicle or watercraft was acting with criminal intent to intentionally inflict injury or death, or was operating the motor vehicle or watercraft as is prohibited by § 55-10-401;
  15. (O) If the claim is based upon the death of the victim and an award in excess of funeral and burial expenses is being sought, a finding that the claimant was a dependent of the decedent;
  16. (P) Whether compensation is due to the claimant under this chapter, including the amount and manner of payment;
  17. (Q) The name and address of each person to whom compensation is being paid, including the amount to be paid; and
  18. (R) If the claimant is a minor or is incompetent, a plan for the disbursement of all funds for the benefit of the claimant pursuant to § 29-13-111.
(c) In determining whether to make an award under this section, or the amount of the award, any circumstances reasonably relevant to the criminal act may be considered, including the behavior of the victim which directly or indirectly contributed to the victim's injury or death, unless such injury or death resulted from the victim's attempt to prevent the commission of a crime or an attempted crime or to apprehend or attempt to apprehend an offender, as set forth in § 29-13-104(2) and (3).
(d) For the purposes of this chapter, a person is deemed to have intended an act, notwithstanding that by reason of age, insanity, drunkenness, or otherwise, such person was legally incapable of forming a criminal intent.
(e) No award of compensation shall be made until a subrogation agreement is executed by the claimant to the effect that the criminal injuries compensation fund will be reimbursed to the full amount expended by the fund less an award for attorney's fees should the claimant recover damages in a civil action for that injury or death. No part of the recovery due the criminal injuries compensation fund shall be diminished by any collection fees or for any other reason whatsoever.
(f) An award may be made under this section whether or not any person is prosecuted or convicted or acquitted, except as required by § 29-13-111, of any offense arising out of such act, or if such act is the subject of any other legal action. Furthermore, the apprehension of an offender is not a condition of award. However, no award shall be made unless the claimant fully cooperates with the police and district attorney general in any prosecution of the offender, which prosecution occurs either before or after the payment of such compensation. Awards may be amended under § 29-13-108(j) in furtherance of this policy.

1 Backlink

9-8-403(j)

§ 29-13-110. Medical reports.

(a) In the filing of a claim, the claimant shall provide sufficient medical reports from physicians, surgeons, hospitals and other health care facilities to fully describe the injury suffered, the treatments rendered and the percentage of disability incurred, if disability benefits are requested by the claimant. At the time of final adjudication of the claim, medical reports submitted by the claimant may be returned to the claimant.
(b) If an examination of the victim and a report thereon, or a report on the cause of death of the victim, would be of material aid, a duly qualified impartial physician may be appointed to make such an examination or report, with due regard to the religious tenets of the claimant.

§ 29-13-111. Manner of payment — Exemption from execution or attachment.

(a) Upon acceptance of a settlement offer by a claimant or receipt of an order by the commission, the division shall, without further authorization, and subject to available funds, pay the claimant the amount, and in the manner determined appropriate. Such payment shall be made from the fund as set forth in § 29-13-116.
(b) All payments shall be made in a lump sum, except for those claims involving death or protracted disability, for which periodic payment of compensation may be awarded for the loss of earnings or support.
(c) If the claimant is a minor, or is incompetent, payment shall be ordered to a relative or legal guardian. In such situations, the payee shall submit a plan for the disbursement of all funds for the benefit of the claimant as will best promote the interest of the claimant. Such plan shall be submitted at the time a claim for compensation is filed. Thereafter, should the payee choose to alter or amend the terms of the plan, the payee shall file a petition with the division setting out the nature of the proposed amendment or alteration and the reasons therefor. If the division determines that the requested amendment or alteration is in the best interest of the claimant, the division is authorized to approve such amendment or alteration. If the division is unable to make such a determination, the petition shall be submitted to the commission for its consideration. In the event the payee attempts to alter or amend the terms of the plan without filing such petition, the payee is liable for all amounts expended contrary to the approved plan. Notwithstanding the foregoing, the division or the commission has the discretion to turn over compensation awarded to a minor to the juvenile court pursuant to part 3 of this chapter, to be placed in an interest-bearing account for the benefit of the minor.
(d)
1. (1) Notwithstanding any provision of this part to the contrary, if the claimant has outstanding health care, funeral or burial expenses resulting from the injury or death which was the basis of the claim and if any compensation remains after making provision for the payment of all other eligible losses and expenses to the claimant, the division or commission may, in their discretion, make the remaining compensation payable to the health care or funeral provider.
2. (2) Where multiple health care or funeral providers exist and the remaining compensation is inadequate to pay the entire indebtedness, the division or commission may divide the remaining compensation equally among the providers or, in the division or commission's discretion, apportion the remaining compensation among the providers in accordance with the claimant's instructions.
3. (3) Nothing in this subsection (d) shall be construed to increase the maximum amount that may otherwise be awarded under § 29-13-107(7).
(e)
1. (1) Except as provided in subdivisions (e)(2) and (3), no award pursuant to this chapter shall be subject to execution or attachment other than for expenses resulting from the injury or death which is the basis of the claim.
2. (2) If any claimant is entitled to direct compensation pursuant to this chapter and is in arrears with regard to child support payments, the department of human services shall, without further order by the court, attach a lien to any award of compensation such child support obligor receives from the criminal injuries compensation funds in order to satisfy such arrearage; however, a lien shall not apply to awards made by the division directly to service providers pursuant to subsection (d). The division shall periodically notify the department of human services of claims that have been filed. Upon notice from the division, it shall be the department of human services' responsibility to then notify the division of a lien attaching to a claim for payment of child support arrearage. This subsection (e) shall be effective for decisions made on or after July 1, 2012.
3. (3) If any minor claimant is entitled to direct compensation pursuant to this chapter and a trust fund has been established for the minor claimant in accordance with part 3 of this chapter, the juvenile court clerk may, without further order of the court, withhold any funds within the trust for the purpose of paying court costs, fines, fees, or restitutions resulting from the minor beneficiary's actions pending in juvenile court.

3 Backlinks

§ 29-13-112. Attorney's fees.

(a)
1. (1) In addition to the amount of compensation awarded under this chapter, reasonable attorney's fees shall be determined and allowed to the attorney representing the claimant; provided, that no attorney's fees shall exceed the lesser of the following:
  1. (A) Fifteen percent (15%) of the first two thousand five hundred dollars ($2,500) of compensation awarded, plus ten percent (10%) of any compensation awarded over two thousand five hundred dollars ($2,500); or
  2. (B) Three hundred seventy-five dollars ($375) for claims resulting from the death of the victim or five hundred dollars ($500) for all other claims.
2. (2) Notwithstanding subdivision (a)(1), an attorney who is aggrieved by the amount of attorney's fees allowed may petition the commission for a review thereof. In determining whether to grant the petition for review, the commission shall take into account the complexity of the claim, the amount of time the attorney spent in representing the claimant, and such other matters as the commission deems appropriate. The petition must be filed within thirty (30) days of the date of the settlement notice, or if the claim was heard by the commission, within thirty (30) days of the date of the commission's order. The petition shall set forth with specificity the reasons the commission should grant the review. If the commission grants the petition, the commission may increase the amount of attorney's fees allowed.
3. (3) Provided, that in no case may the total fees granted under subdivisions (a)(1) and (2) exceed a maximum of seven hundred fifty dollars ($750).
(b)
1. (1) There shall be no compensation to an attorney whose fees are paid for under any federally funded legal services program, or any such program funded by the state.
2. (2) However, compensation shall be determined and allowed in accordance with subsection (a) to an attorney employed in a privately or publicly funded nonprofit public interest law firm or corporation if the following conditions are met:
  1. (A) The attorney filed the claim on behalf of the claimant as part of the attorney's ongoing representation of the claimant in a civil action arising from the injury or death which was the basis of the claim; and
  2. (B) Neither the attorney, the law firm nor the corporation received, or is entitled to receive, compensation for filing the claim on behalf of the claimant under any federal or state statute or rule.
(c) It is unlawful for any attorney to ask for, contract for or receive any larger sum than the amount so allowed under this section.

§ 29-13-113. Subrogation.

(a) Whenever any person is convicted of an offense and an order for the payment of compensation is or has been made under this chapter for a personal injury or death resulting from the act constituting such offense, the state of Tennessee may institute an action against such person for the recovery of the whole or any specified part of the compensation in the circuit courts of the state of Tennessee in any county, in a state, or in a federal court of any other state or district in which such person resides.
(b) An order for the payment of compensation under this chapter shall not affect the right of any person to recover damages from any other person by a civil action for the injury or death.
(c) As a condition for the receipt of a criminal injuries compensation award, the recipient of an award shall agree, by such form as the board of claims may direct, to cooperate fully with appropriate officials of the state should the state proceed to institute an action against the criminal offender to recover the whole or any specified part of the compensation awarded.
(d) Should any person receiving an award for criminal injuries compensation choose to exercise such person's right to recover damages in civil court for injury or death, such person shall notify the district attorney general and the division of the institution of such a lawsuit by serving the district attorney general and the division through the United States mail with a copy of the complaint, all subsequent pleadings and a copy of the final judgment in order to give the state notice of the existence of such an action so that the state may pursue its subrogated interest.

§ 29-13-114. Emergency award.

(a) If it appears to the claims commission, prior to any hearing on a claim, that:
1. (1) Such claim is one with respect to which an award will probably be made; and
2. (2) Undue hardship will result to the claimant if immediate payment is not made;
3. the claims commission may make an emergency award to the claimant pending a final decision in the case.
(b) The amount of such emergency award shall not exceed five hundred dollars ($500).
(c) The amount of such emergency award shall be deducted from any final award made to the claimant. The excess of the amount of such emergency award over the final award, or the full amount of the emergency award if no final award is made, shall be repaid by the claimant to the state.
(d) No emergency award shall be made pursuant to this section unless the board of claims certifies that there is sufficient money in the fund to pay all awards that have been made pursuant to this chapter.

1 Backlink

29-13-106(f)(1)(C)

§ 29-13-115. Penalty.

Any person who asserts a false claim under this chapter, knowing such claim to be false, commits a Class C misdemeanor, and, upon conviction thereof, shall forfeit any benefit received and shall reimburse and repay the state for payments received or paid on such person's behalf pursuant to any of the provisions of this chapter.

§ 29-13-116. Use of state and federal funds — Expenses — Grants.

(a) Funds available from the criminal injuries compensation fund, created under § 40-24-107, shall be expended to effectuate this chapter, including all expenses to administer this chapter.
(b) Use of available federal funds shall be specifically permitted to fund this program. In the event federal funds are made available to the state, the division of claims and risk management is hereby authorized to comply with any additional requirements imposed by the federal government so long as compliance with such provisions is not prohibited by, or contrary to, this chapter.
(c) The treasurer is authorized to award an annual grant to the district attorneys general conference for domestic violence and drug enforcement program operations in an amount not to exceed that specified in the general appropriations act each fiscal year. The treasurer is also authorized to provide an annual sponsorship for a remembrance event for homicide victims in an amount not to exceed eight hundred fifty dollars ($850).
(d) In the event that the moneys in the criminal injuries compensation fund are inadequate to support subsections (a)-(c), there is hereby appropriated a sum sufficient to support those expenditures.

1 Backlink

29-13-111(a)

§ 29-13-117. Statistical reports.

The state treasurer shall include in the annual report of the state treasurer, such financial, statistical or other relevant information to accurately report the financial condition of the criminal injuries compensation fund and the operation of this chapter.

§ 29-13-118. Forensic medical examinations in sexual assault cases.

(a) For purposes of this section, unless the context otherwise requires, “forensic medical examination” means an examination provided to a victim of a sexually-oriented crime by any health care provider who gathers evidence of a sexual assault in a manner suitable for use in a court of law.
(b)
1. (1) A victim of a sexually-oriented crime, defined as a violation of §§ 39-13-502 – 39-13-506, 39-13-522, 39-13-527, 39-13-531, and 39-13-532, shall be entitled to forensic medical examinations without charge to the victim. No bill for the examination shall be submitted to the victim, nor shall the medical facility hold the victim responsible for payment. All claims for forensic medical examinations are eligible for payment from the criminal injuries compensation fund, created under § 40-24-107.
2. (2) Notwithstanding any provision of this part to the contrary, the victims shall not be required to report the incident to law enforcement officers or to cooperate in the prosecution of the crime in order to be eligible for payment of forensic medical examinations.
3 Backlinks
(c) A claim for compensation under this section shall be filed no later than one (1) year after the date of the examination by the health care provider that performed the examination, including a hospital, physician, SANE program, Child Advocacy Center, or other medical facility. The claim shall be filed with the division, in person or by mail. The division is authorized to prescribe and distribute forms for the filing of claims for compensation. The claim shall set forth the name and address of the victim, and any other information required by the division in order to satisfy federal regulations issued under the Victims of Crime Act of 1984, compiled generally in 42 U.S.C. § 10601 et seq. The claim shall be accompanied by an itemized copy of the bill from the health care provider that conducted the examination. The bill shall, at a minimum, set forth the name of the victim, the date the examination was performed, the amount of the bill, the amount of any payments made on the bill, and the name and address of the health care provider that performed the examination.
(d) The amount of compensation that may be awarded under this section shall not exceed one thousand dollars ($1,000), and shall constitute full compensation to the health care provider that provided the service. No provider receiving compensation pursuant to this section shall bill the victim for any additional cost related to the forensic medical examination. The compensation shall be made pursuant to this subsection (d) no later than ninety (90) days after receiving the documentation required under subsection (c).
(e) Payment to a health care provider under this section does not prohibit the victim from receiving other payments for which the victim may be eligible under this part or any other law.

2 Backlinks

§ 29-13-119. Claims by passengers in motor vehicles or watercraft.

(a) Claims for compensation brought under § 29-13-104(1)(B) shall be barred if the victim knew or reasonably should have known that the operator of the motor vehicle or watercraft was legally intoxicated or under the influence of a drug of abuse or both as proscribed by title 55. For purposes of this section, “a drug of abuse” shall mean any intoxicant, marijuana, narcotic drug, or drug that produces stimulating effects on the central nervous system.
(b) For purposes of this section and § 29-13-104(1)(B), a rebuttable presumption shall exist that the victim knew or reasonably should have known that the driver was legally intoxicated or under the influence of a drug of abuse or both as proscribed by title 55. The fact that the victim was under the influence of alcohol, a drug of abuse, or both shall not mitigate, excuse or justify the victim's failure to have reasonably known that the operator of the vehicle was under the influence of alcohol, a drug of abuse or both.
(c) The rebuttable presumption provisions shall not apply if on the date of the offense the victim was under fourteen (14) years of age, or was at least fourteen (14) years of age but less than eighteen (18) years of age and was riding with a parent, guardian or other person exercising parental control over the victim.

1 Backlink

29-13-104(1)(B)

Part 3 Trust Fund for Awards to Minors

§ 29-13-301. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Commission” means the Tennessee claims commission created pursuant to § 9-8-301;
2. (2) “Criminal injuries compensation award” means the compensation awarded pursuant to part 1 of this chapter;
3. (3) “Division” means the division of claims and risk management created pursuant to § 9-8-401;
4. (4) “Guardian ad litem” means a responsible adult appointed by the juvenile court to protect the rights and interests of the minor;
5. (5) “Juvenile court” means the court having juvenile court jurisdiction in the county where the minor resides; and
6. (6) “Minor” means any person who has not attained eighteen (18) years of age and who has not been otherwise emancipated.

§ 29-13-302. Establishment of trust.

The commission or the division may, in such manner as it deems appropriate, turn over criminal injury compensation awards made to a minor to the juvenile court clerk to be placed in an interest-bearing account for the benefit of the minor. The award shall be accompanied with a petition and order directing the clerk to set up a fund for the minor.

§ 29-13-303. Basis for encroachment of funds.

Encroachment on the funds shall be allowed for any injury related expenses specifically contemplated by the commission or the division in granting the compensation award. Encroachment on the funds may also be allowed for unusual medical expenses, including, but not limited to, eyeglasses or braces, or for unusual educational opportunities, such as school field trips, or, with good cause shown, other need of the minor, provided such need is not for normal living expenses. Encroachment on the funds shall not be allowed if the minor is legally entitled to receive payment for such expenses from any other public or private source including, but not limited to, insurance, TennCare or medicaid.

§ 29-13-304. Procedure for encroachment.

(a) In order to obtain encroachment on the funds, a motion must be filed with the juvenile court by the custodian or other appropriate individuals.
(b) The motion shall state the minor's name, the amount of money being currently held in the clerk's office for the benefit of the minor, the particular need or expense for which disbursement is sought, and the amount sought.
(c) At the hearing, the custodian or other appropriate individual petitioning the court to encroach shall be placed under oath and shall testify as to the minor's need.
(d) In the event the court grants the motion, an order shall be filled out stating the date, the amount of the disbursement, and to whom the check or checks are to be made payable.
(e) In the event that the check is to be made payable to a health care provider or to the school or other appropriate person, the clerk's office shall be charged with the responsibility of obtaining the address of the health care provider, the school or other appropriate person or agency and forwarding the check directly to them.
(f) In the event the sum is made payable to the custodian or other appropriate individual, that person shall be responsible for making an accounting to the court thirty (30) days from the date of the hearing as to how the money was spent. In these situations, the court shall direct a probation officer to monitor the file and issue a show cause hearing in the event the custodian or other appropriate individual does not make the accounting to the court in the time prescribed by the court.
(g) In unusual circumstances, a guardian ad litem may be appointed to determine whether or not disbursing the funds is in the best interest of the minor.

§ 29-13-305. Forms.

The clerk's office shall provide forms which may be necessary to seek an encroachment order under this part. These forms shall be limited to use in causes filed under this part and they shall be made available to all who request assistance in filing a petition. The petitioner is not limited to the use of these forms and may present to the court any legally sufficient petition in whatever form. The office of the clerk shall also assist a person who is not represented by counsel by filling in the name of the court on the petition, by indicating where the petitioner's name shall be filled in, by reading through the petition form with the petitioner, and by rendering any other such assistance as is necessary for the filing of the petition.

§ 29-13-306. Clerk's fee.

To defray the expenses of administering a criminal injury compensation award under this part, the juvenile court clerk shall be entitled to receive a flat fee not to exceed five percent (5%) of the total amount tendered into the court. The fee shall be deducted by the clerk from the compensation award.

§ 29-13-307. Residence change.

(a) If the minor becomes a resident of another county in this state or becomes a resident of another state, the court may request the juvenile court of the county of the state in which the child has become a resident to accept jurisdiction of the trust and to continue the terms of the trust as set forth herein.
(b) Upon receipt and filing of an acceptance, the court shall transfer the funds and interest income of the trust to the accepting court. It shall also provide that court with certified copies of the petition and order setting up the trust, motions and orders to encroach, and any other information it considers of assistance to the accepting court in administering the trust.
(c) Upon compliance with subsection (b), the jurisdiction of the transferring court over the trust is terminated.

§ 29-13-308. Termination of trust.

Upon attaining eighteen (18) years of age, the minor may terminate the trust by submitting a written request therefor with the court clerk. The court clerk shall deliver to the minor all funds and interest income remaining in the trust less any outstanding fees, court costs, fines, or restitutions resulting from the minor beneficiary's actions pending in juvenile court within sixty (60) calendar days from the date of the request.

§ 29-13-309. Denial of petition to establish trust — Transfer of fund to juvenile court.

The juvenile court may deny a petition to establish a trust for the benefit of a minor as provided in this part; provided, that the court issues an order to that effect within fourteen (14) business days after receipt of the petition. The juvenile court clerk shall return the award to the division accompanied with the order. Upon receipt of the order, the division shall turn the award over to the clerk of the court having probate jurisdiction in the county where the minor resides. The award shall be accompanied with a petition and order directing the clerk to set up a fund for the minor as provided herein. The court shall accept jurisdiction of the trust and shall have all of the rights, duties and obligations as a juvenile court is required or authorized to perform under this part.

Part 4 Victims' Compensation from the Proceeds of Crime

§ 29-13-401. Short title.

This part shall be known and may be cited as the “Victim Compensation from the Proceeds of the Crime Act of 1994.”

§ 29-13-402. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Attorney general and reporter” means the Tennessee attorney general and reporter;
2. (2) “Crime” means an offense under the laws of this state resulting in a specific physical, mental, or pecuniary injury, or death, to another person, and includes multiple crimes committed by a defendant;
3. (3) “Defendant” means a person who:
  1. (A) Is convicted of a crime in this state;
  2. (B) Is judged not guilty by reason of insanity;
  3. (C) Pleads nolo contendere to a specific criminal charge; or
  4. (D) Has been formally charged with a crime but is still awaiting trial; and
4. (4) “Victim” means:
  1. (A) A person, not an accomplice of the defendant, who suffers a specific physical, mental, or pecuniary injury as a direct result of a crime; or
  2. (B) The estate of a person who dies as a direct result of a crime.

§ 29-13-403. Defendant's income — Collection — Deposit.

(a)
1. (1) The attorney general and reporter shall collect all income, from whatever source derived, which is owing to the defendant, or representative or assignee of the defendant, after the date of the crime.
2. (2) If the district attorney general of the district in which a defendant's conviction occurred, or any district attorney general, has or becomes aware of any information concerning income that is in such defendant's possession or is owing to such defendant, it shall be the duty of such district attorney general to notify the attorney general and reporter of such information.
3. (3) Any such district attorney general who has or becomes aware of information concerning a defendant's income as described in subdivision (a)(2) shall also assist and work with the attorney general and reporter in locating and collecting such income.
(b) The attorney general and reporter shall deposit the moneys collected in an interest-bearing escrow account in the name of the defendant. The moneys shall be payable to the victim or victims of the crime committed by the defendant. The moneys shall only be payable if the victim, or legal representative of the victim's estate, brings a civil action in a court of competent jurisdiction for money damages against the defendant within three (3) years from the date of the crime, subject to § 29-13-404.
1 Backlink
- 29-13-404

§ 29-13-404. Limitations period.

Notwithstanding any inconsistent law with respect to survival of civil actions, the three-year period for filing a civil action as provided by § 29-13-403(b) does not begin to run until:
1. (1) All moneys owing to the defendant under the terms of the contract have been paid to the attorney general and reporter; and
2. (2) An escrow account has been established for the benefit of the defendant's victims.

1 Backlink

29-13-403(b)

§ 29-13-405. Notice to victims.

After establishing an escrow account, the attorney general and reporter shall notify victims of the existence of the account in the following manner:
1. (1) By direct notification, if direct notice to a victim is possible and not unreasonable under the circumstances, as frequently as provided by subdivision (2), that moneys are available to satisfy a civil judgment pursuant to this part; and
2. (2) If direct notice is not possible, by publication of a legal notice in a newspaper in the county in which the crime was committed and in counties contiguous to that county. The notice shall advise the victim that escrow moneys are available to satisfy a money judgment pursuant to this part. The notice shall be published once every three (3) months for three (3) years after the date the escrow account is established. The attorney general and reporter may provide for additional notice as deemed necessary.

§ 29-13-406. Apportionment of funds among victims.

(a) If more than one (1) victim may claim funds from an escrow account, no victim may be compensated until all claims against the defendant have been adjudicated.
(b) If more than one (1) victim recovers a judgment for money damages, and funds from the escrow account are insufficient to satisfy fully all judgments, money shall be apportioned to each victim on a prorated basis.

§ 29-13-407. Return of funds to defendant.

(a) The attorney general and reporter immediately shall pay over to the defendant all of the funds in the escrow account:
1. (1) Upon a showing by the defendant, or representative of the defendant, that three (3) years have elapsed from the date the escrow account has been established, and no civil actions are pending against the defendant; or
2. (2) Upon disposition of the criminal charges favorable to the defendant.
(b) If the defendant fails to make a showing under subdivision (a)(1) to the attorney general and reporter that the limitations period has expired, within six (6) months after the expiration of the period, the attorney general and reporter shall turn over all moneys in the escrow account to the criminal injuries compensation fund of this state.

§ 29-13-408. Use of funds for legal representation.

Upon a showing by the defendant to the attorney general and reporter or the court in which the defendant's case on appeal is pending, that legal representation would not be otherwise affordable, the defendant shall be entitled to use funds from the escrow account to obtain legal representation at any stage of the criminal proceedings, including the appeals process. The defendant's use of such funds shall not exceed twenty percent (20%) of the total amount of the funds paid into the escrow account.

§ 29-13-409. Failure by defendant to establish claim for return of funds.

Upon a showing by the defendant that three (3) years have passed since the date the escrow account was established, and that all civil judgments against the defendant have been satisfied, all remaining funds from the escrow account shall be paid to the defendant. If the defendant fails to make such a showing within six (6) months after the expiration of the limitation period, the attorney general and reporter shall turn over the remaining moneys in the escrow account to the criminal injuries compensation fund established by § 29-13-101.

§ 29-13-410. Violation of part — Penalty.

An entity violating this part commits a Class A misdemeanor. If an entity contracts and makes payment to a defendant in violation of this part, the entity is liable to a victim of crime for three (3) times the amount that victim would be entitled to receive, plus the costs of collection including attorney's fees.

§ 29-13-411. Acts in derogation of part.

Any action taken by the defendant, whether by way of execution of a power of attorney, creation of corporate identity or otherwise, to defeat the purpose of this part is void as against the public policy of the state.

Chapter 14 Declaratory Judgments

§ 29-14-101. Definition of person.

“Person,” wherever used in this chapter, is construed to mean any person, partnership, joint stock company, trust, unincorporated association, or society, or municipal or other corporation of any character whatsoever.

§ 29-14-102. General power of courts.

(a) Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
(b) No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.
(c) The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.

1 Backlink

29-14-106

§ 29-14-103. Construction of statutes and written instruments.

Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

1 Backlink

29-14-106

§ 29-14-104. Construction of contract before or after breach.

A contract may be construed either before or after there has been a breach thereof.

§ 29-14-105. Fiduciary powers and duties.

Any person interested as or through an executor, administrator, trustee, guardian, conservator or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, person adjudicated incompetent, or insolvent may have a declaration of rights or legal relations in respect thereto to:
1. (1) Ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;
2. (2) Direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
3. (3) Determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

1 Backlink

29-14-106

§ 29-14-106. Enumeration of powers not a restriction.

The enumeration in §§ 29-14-103 — 29-14-105 does not limit or restrict the exercise of the general powers conferred in § 29-14-102, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

§ 29-14-107. Parties to proceedings.

(a) When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.
(b) In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance, or franchise is of statewide effect and is alleged to be unconstitutional, the attorney general and reporter shall also be served with a copy of the proceeding and be entitled to be heard.

§ 29-14-108. Issues of fact.

When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

§ 29-14-109. Refusal to render judgment.

The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings.

§ 29-14-110. Additional relief.

(a) Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper.
(b) The application therefor shall be by petition to a court having jurisdiction to grant the relief.
(c) If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

§ 29-14-111. Costs.

In any proceeding under this chapter, the court may make such award of cost as may seem equitable and just.

§ 29-14-112. Review.

All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.

§ 29-14-113. Liberal construction.

This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.

Chapter 15 Ejectment

§ 29-15-101. Alternative actions.

Where the action is to recover real property, ejectment, or forcible or unlawful entry or detainer may be brought.

§ 29-15-102. Right to ejectment.

Any person having a valid subsisting legal interest in real property, and a right to the immediate possession thereof, may recover the same by an action of ejectment.

§ 29-15-103. Parties defendant.

(a) The action is brought against the actual occupant, if any, and, if no such occupant, then against any person claiming an interest therein, or exercising acts of ownership at the commencement of the suit.
(b) When the suit is against a tenant by a party claiming adversely to the title of the tenant's landlord, the landlord may appear and be made a defendant with, or in the place of, the tenant.

§ 29-15-104. Contents of declaration.

It is sufficient for the plaintiff to allege in plaintiff's declaration that plaintiff was possessed of the premises sued for at the time specified, which should be after plaintiff's title accrued, and, being so possessed thereof, the defendant afterwards, on a day stated, entered thereon, and unlawfully withholds the same, to the plaintiff's damage, naming the sum. The plaintiff's declaration shall specify the quantity of plaintiff's estate and the extent of plaintiff's interest, according to the truth, and describe the premises, with convenient certainty, by metes and bounds, or other appropriate description.

§ 29-15-105. Joinder of counts and parties.

(a) The declaration may contain several counts, and several parties may be named as plaintiffs, jointly in one (1) count and separately in others, but not without the consent of the party in person, or by a duly authorized agent, unless the party in person be tenant in common with the party commencing the suit.
(b) If the name of a person be used as a plaintiff contrary to this provision, the suit shall be dismissed at the cost of the plaintiff, on motion of the defendant and the proof of want of authority.

§ 29-15-106. Death of parties.

(a) The death of either party does not abate the action, but it may be revived in favor of the heirs or devisees of the plaintiff, and against the heirs and terre-tenants of the defendant.
(b) If the heirs are nonresident, the court may order publication to be made for them, as in the case of other nonresident defendants; and, if they fail to appear and defend, judgment by default may be taken, subject to the rules and regulations of this Code touching judgments against nonresident defendants.
(c) If any of the heirs of a deceased defendant are infants, either resident or nonresident, without regular guardian in this state, the court may appoint a guardian ad litem for such infants after suit has been revived against them by service of process or publication, as aforementioned. Should such nonresident heirs appear, the court may, at any time before the trial, upon satisfactory ground shown, change the guardians, and appoint others to defend in behalf of such defendants.

§ 29-15-107. Facts to be proved.

(a) Upon the trial, the plaintiff need not prove an actual entry on or possession of the premises demanded, or receipt of any profits thereof, nor any lease, entry, or ouster, except as herein provided, but it is sufficient for plaintiff to show a right to the possession of the premises at the commencement of the suit.
(b) If the action be brought by one (1) or more tenants in common, copartners, or joint owners, against their cotenants, the plaintiff shall prove actual ouster or some other act by the defendant amounting to a denial of the plaintiff's right as cotenant.

§ 29-15-108. Title bonds as evidence.

On trials of actions of ejectment between vendor and vendee, title bonds, properly proved and registered, may be read in evidence, and shall have the same force and effect as a deed between the same parties.

§ 29-15-109. Parties involved in verdict.

When there are more defendants than one (1), the jury may find the defendants jointly or severally guilty of detaining all or any distinct parcels of the premises, and plaintiff may have judgment against any or all defendants, according to the facts of the case. The verdict may be for plaintiffs, or such of them as appear to have right to the possession of the premises, or any part thereof, and against such of the defendants as were in possession thereof or claimed title thereto at the commencement of the action.

§ 29-15-110. Land described in verdict.

(a) The plaintiff may recover any specific part or share of the premises embraced in the declaration, though less than plaintiff claims.
(b) The verdict may specify the extent and quality of the plaintiff's estate, and the premises to which plaintiff is entitled, with reasonable certainty, by metes and bounds, or other sufficient description, according to the facts as proved.

§ 29-15-111. Expiration of plaintiff's right.

If the right of the plaintiff expire after the commencement of the suit and before trial, the verdict shall be according to the facts, and judgment shall be entered for damages for the withholding of the premises by the defendant; and as to the premises, the judgment shall be that the defendant go hence without delay.

§ 29-15-112. General verdict for plaintiff.

A general verdict in favor of the plaintiff, without such specifications, entitles the plaintiff to the quantity of interest, or estate, and the premises, as set forth and described in the declaration.

§ 29-15-113. Judgment conforming to verdict or declaration.

The judgment for the plaintiff is that plaintiff recover the possession of the premises according to the verdict, or, if by default or on demurrer, according to the description in the declaration.

§ 29-15-114. Writ of possession.

The judgment is executed by a writ of possession, issued to the sheriff, and directing the sheriff to put the plaintiff in possession of the premises.

§ 29-15-115 — 29-15-119. [Reserved.]

§ 29-15-120. Conclusiveness of judgment.

Any such judgment is conclusive upon the party against whom it is recovered, not under disability at the time of the recovery, and all persons claiming under the party by title accruing after the commencement of the action.

§ 29-15-121. Mesne profits — Improvements.

This chapter does not deprive the plaintiff of a right to an action for mesne profits after verdict and judgment in plaintiff's favor, or the defendant of the right to file a bill in equity for the value of defendant's improvements, but those rights are subject to the general provisions of this Code regulating actions.

§ 29-15-122. Tenant's liability for rents.

A tenant in possession in good faith, under a lease or license from another, is not liable beyond the rent in arrear at the time of suit brought for the recovery of the land, and that which may afterwards accrue during the continuance of the tenant's possession.

§ 29-15-123. Improvements setoff.

Persons holding possession in good faith, under color of title, are entitled to have the value of their permanent improvements setoff against the rents and profits which the plaintiff may recover.

§ 29-15-124. Disposition of contents on execution.

(a) In executing a writ of possession after judgment in an action of ejectment, the option of having personal property removed to a local warehouse for storage or having it removed from the property as has been the procedure of sheriffs prior to March 28, 1976 shall be with the person being ejected.
(b) All storage fees and transportation costs incurred are to be paid by the owner of the stored property.

§ 29-15-125. Rebuttable presumption of legal title.

In order to establish a rebuttable presumption of legal title to real property for the purpose of bringing an action of ejectment, it shall be sufficient for a person claiming legal title to establish the chain of title to the property for the preceding fifty (50) years in any instance where the property title records of the county have been destroyed so as to make it impossible to trace the title of the property to the earliest sale or grant.

Chapter 16 Eminent Domain

Part 1 General Provisions

§ 29-16-101. Power for internal improvements.

Any person or corporation authorized by law to construct any railroad, turnpike, canal, toll bridge, road, causeway, or other work of internal improvement to which the like privilege is conceded, may take the real estate of individuals, not exceeding the amount prescribed by law, or by the charter under which the person or corporation acts, in the manner and upon the terms herein provided.

2 Backlinks

§ 29-16-102. Incorporation of chapter into other laws.

(a) This chapter shall be deemed, unless expressly stated to the contrary, and without incorporation or reference, to be a part of every section, or legislative act, present or future, which grants the power of such condemnation.
(b) The making of compensation for such a taking, as therein set forth, shall also be so implied.

§ 29-16-103. Property of corporations.

The operation of this chapter is extended so that the same shall apply to and include the condemnation and taking of property, privileges, rights, or easements of private corporations for public purposes or internal improvements.

§ 29-16-104. Petition.

The person seeking to appropriate such land shall file a petition in the circuit court of the county in which the land lies, setting forth, in substance:
1. (1) The parcel of land or rights therein or incident thereto a portion of which is wanted, and the extent wanted;
2. (2) The name of the owner of such land or rights, or, if unknown, stating the fact;
3. (3) The object for which the land, etc., is wanted; and
4. (4) A prayer that a suitable portion of land or rights may be decreed to the petitioner, and set apart by metes and bounds, or other proper mode.

1 Backlink

65-6-128

§ 29-16-105. Notice of petition.

(a) Notice of this petition, together with a copy thereof, shall be given to the owner of the land or rights, or, if a nonresident of the county, to the landownder's agent, at least five (5) days before its presentation.
(b) If the owner is a nonresident of the state or unknown, notice shall be given by publication, as provided in this Code in similar cases in chancery.

§ 29-16-106. Parties defendant.

All parties having any interest in any way in such land or rights may be made defendants, and the proceedings shall only cover and affect the interest of those who are actually made parties, unborn remaindermen being, however, bound by proceedings to which all living persons in interest are parties.

1 Backlink

69-4-106

§ 29-16-107. [Transferred]

§ 29-16-108. Constitution of jury.

The jury will consist of five (5) persons, unless the parties agree upon a different number, and either party may challenge, for cause or peremptorily, as in other civil cases.

2 Backlinks

§ 29-16-109. Qualifications of jurors.

The jurors shall not be interested in the same or a similar question, and shall possess the qualifications of other jurors, and may be nominated by the court, selected by consent of parties, or summoned by the sheriff.

1 Backlink

69-4-106

§ 29-16-110. Substitution of jurors.

If named by the court, and the persons named are unable to attend when summoned, the place of such persons shall be supplied by the sheriff.

1 Backlink

29-17-706(a)

§ 29-16-111. Notice of inquest.

The sheriff shall give the parties or their agents, if residents of the county, three (3) days' notice of the time and place of taking the inquest, unless the time has been fixed by the order of court.

1 Backlink

8-8-201(b)(1)

§ 29-16-112. Swearing of jury.

The jury, before proceeding to act, shall be sworn by the sheriff, fairly and impartially, without favor or affection, to lay off, by metes and bounds, the land required for the proposed improvement, and to inquire and assess the damages.

2 Backlinks

§ 29-16-113. Investigation by jury.

(a) The jury will then proceed to examine the ground, and may hear testimony, but no argument of counsel, and set apart, by metes and bounds, a sufficient quantity of land for the purposes intended, and assess the damages occasioned to the owner thereby.
(b) In condemning rights-of-way for telegraph and telephone companies, or riparian rights, the juries shall not be required to lay off the property, privileges, rights, or easements included in the petition, or sought to be condemned, by metes and bounds; and, in such cases, it shall be discretionary with such juries whether they will view the premises or not.

1 Backlink

69-4-106

§ 29-16-114. [Transferred]

§ 29-16-115. Return of jury's report.

The report of the jury shall be reduced to writing, signed by a majority of the jurors, delivered to the sheriff, and by the sheriff returned into court.

§ 29-16-116. Confirmation of report.

If no objection is made to the report, it is confirmed by the court, and the land decreed to the petitioner, upon payment to the defendants, or to the clerk for their use, of the damages assessed, with costs.

§ 29-16-117. Setting aside report.

Either party may object to the report of the jury, and the same may, on good cause shown, be set aside, and a new writ of inquiry awarded.

1 Backlink

69-4-106

§ 29-16-118. Appeal.

(a) Either party may also appeal from the finding of the jury, and, on giving security for the costs, have a trial anew, before a jury in the usual way.
(b) In all cases where the right to condemn is not contested and the sole question before the jury is that of damages the property owner shall be entitled to open and close the argument before the court and jury.
(c) The time within which either party may appeal from the finding of the jury of view shall be forty-five (45) days from the date of the entry of the court's order confirming the report of the jury of view.

§ 29-16-119. Costs on appeal.

If the verdict of the jury, upon the trial, affirms the finding of the jury of inquest, or is more unfavorable to the appellant than the finding of such jury, the costs shall be adjudged against such appellant; otherwise the court may award costs as in chancery cases.

2 Backlinks

§ 29-16-120. Operations pending appeal.

The taking of an appeal does not suspend the operations of the petitioner on the land; provided such petitioner will give bond with good security, to be approved by the clerk, in double the amount of the assessment of the jury of inquest, payable to the defendants, and conditioned to abide by and perform the final judgment in the premises.

1 Backlink

29-16-122

§ 29-16-121. Preliminary surveys.

A person or company actually intending to make application for the privileges herein contemplated, and entering upon the land of another for the purpose of making the requisite examinations and surveys, and doing no unnecessary injury, is liable only for the actual damage done, and, if sued in such case, the plaintiff shall recover only as much costs as damages.

1 Backlink

69-4-106

§ 29-16-122. Prerequisites to occupation.

No person or company shall, however, enter upon such land for the purpose of actually occupying the right-of-way, until the damages assessed by the jury of inquest and the costs have been actually paid; or if an appeal has been taken, until the bond has been given to abide by the final judgment as provided in § 29-16-120.

2 Backlinks

§ 29-16-123. Action initiated by owner.

(a) If, however, such person or company has actually taken possession of such land, occupying it for the purposes of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or the owner may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest.
1 Backlink
- 29-16-124
(b) Additionally, the court rendering a judgment for the plaintiff in a proceeding brought under subsection (a), arising out of a cause of action identical to a cause of action that can be brought against the United States under 28 U.S.C. § 1346(a)(2) or § 1491, or the attorney general or chief legal officer of a political subdivision of the state effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement such sum as will in the opinion of the court, or the attorney general or chief legal officer of a political subdivision of the state reimburse such plaintiff for reasonable costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.
1 Backlink
- 12-1-205

3 Backlinks

§ 29-16-124. Limitation of owners' actions.

All actions that could be brought under § 29-16-123(a), regardless of the cause of action or remedy sought, including actions for trespass or nuisance, shall be commenced within twelve (12) months after the land has been actually taken possession of, and the work of the proposed internal improvement begun; saving, however, to unknown owners and nonresidents, twelve (12) months after actual knowledge of such occupation, not exceeding three (3) years, and saving to persons under the disabilities of infancy and unsoundness of mind, twelve (12) months after such disability is removed, but not exceeding ten (10) years.

3 Backlinks

§ 29-16-125. Compensation of jurors — Limitation on compulsive service.

(a) The courts having jurisdiction of eminent domain proceedings are hereby authorized and empowered to fix the per diem of jurors who serve as members of juries of view in an amount not exceeding ten dollars ($10.00) per day, and the courts shall have no power or authority to fix an additional amount of remuneration for such jurors.
(b)
1. (1) Provisions of this section relating to compensation shall not repeal or apply to jurors in any county or counties wherein the per diem of jurors of view is fixed in an amount less than ten dollars ($10.00) per day by any private act or acts heretofore or hereafter passed.
2. (2) In counties of this state having a population of not less than two hundred thousand (200,000) according to the federal population census of 1960 or any subsequent federal population census, the amount shall not exceed one hundred dollars ($100) per day; provided, that by majority vote of the county legislative body occurring prior to January 1, 1998, such amount may be alternatively set at a level not to exceed twenty-five dollars ($25.00) per day.
(c) No person shall be compelled to serve as a member of a jury of view more often than once every two (2) years.

§ 29-16-126. Hospitals — Eminent domain powers.

(a) In any counties of this state having a population of not less than one hundred thousand (100,000) nor more than one hundred fifty thousand (150,000) according to the federal census of 1960 or any subsequent federal census, any hospital incorporated as a general welfare corporation under the laws of the state of Tennessee shall have the power of eminent domain and shall have the right and authority to condemn such lands, property, property rights, privileges and easements of others as may in the judgment of its board of directors, together with the concurrence of two thirds (⅔) of the members of the governing body of the municipality in which such hospital is located or in the event such hospital is located outside the boundaries of an incorporated municipality then together with the concurrence of two thirds (⅔) of the county legislative body of the county of location, be deemed necessary or proper for the purpose of providing buildings and other facilities, including any extension, enlargement or improvement for hospital purposes only.
(b) The land or property sought to be condemned must be adjacent and contiguous to the property upon which such hospital is presently located and not across any street.

§ 29-16-127. [Transferred]

Part 2 Determination of Damages

§ 29-16-201. Determining appraised value of property damaged by governmental entity.

Notwithstanding law to the contrary, in any case where a governmental entity accidentally or negligently causes substantial property damage, the appraised value recorded by the assessor of property for the year in which the damage occurred, divided by the state approved appraisal ratio for the county, shall be admissible into evidence as to the value of such property if such property owner:
1. (1) Had no prior notice or knowledge that such damages would occur; and
2. (2) Did not have a reasonably current appraisal preexisting the date of the property damage.

§ 29-16-202. Writ of inquiry of damages.

(a) After the requisite notice has been given, if no sufficient cause to the contrary is shown, the court shall issue a writ of inquiry of damages to the sheriff, commanding the sheriff to summon a jury to inquire and assess the damages.
(b) By consent of parties, or on application of the plaintiff, unless objection is made by the defendant, the writ of inquiry may be issued by the clerk, as of course, after service of notice, on which the sheriff will summon the jury.

4 Backlinks

§ 29-16-203. Elements of damages.

(a)
1. (1) In estimating the damages, the jury shall give the value of the land or rights taken without deduction, but incidental benefits which may result to the owner by reason of the proposed improvement may be taken into consideration in estimating the incidental damages. Whenever any person, agency, or other entity acquires interest in any parcel of real property and such acquisition requires the removal of furniture, household belongings, fixtures, equipment, machinery, or stock in trade of any person in rightful possession, regardless of whether such person has a legal interest in such property, the reasonable expense of the removal shall be considered in assessing incidental damages. The reasonable expense of the removal of such chattels shall be construed as including the cost of any necessary disconnection, dismantling, or disassembling, the loading, and drayage to another location not more than fifty (50) miles distant, and the reassembling, reconnecting, and installing on such new location.
2. (2) When title to an entire tax parcel is condemned in fee, the total amount of damages for the condemnation of the parcel shall be not less than the last valuation used by the assessor of property just prior to the date of taking, less any decrease in value for any changes in the parcel occurring since the valuation was made, such as the removal or destruction of a building, flooding, waste, or removal of trees. The valuation may be introduced and admitted into evidence at the trial. In addition to condemnation proceedings under this chapter, this subdivision (a)(2) shall apply to condemnation proceedings under chapter 17 of this title or any other law.
(b) Notwithstanding any other law, if any person, agency, or other entity acquires any interest in real property pursuant to the execution of the power of eminent domain, the person shall acquire at least an equal interest in all buildings, structures, or other improvements located upon the real property so acquired and which the person requires to be removed from such real property or which the person determines will be adversely affected by the use to which such real property will be put.
(c)
1. (1) For the purpose of determining the just compensation to be paid for any building, structure, or other improvement required to be acquired by subsection (b), such building, structure, or other improvement shall be deemed to be a part of the real property to be acquired, notwithstanding the right or obligation of a tenant, as against the owner of any other interest in the real property to remove such building, structure, or improvement at the expiration of his term, and the fair market value which such building, structure, or improvement contributes to the fair market value of the real property to be acquired, or the fair market value of such building, structure, or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor.
2. (2) Payment under this subsection (c) shall not result in duplication of any payments otherwise authorized by law. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer, and release to the acquiring party all the tenant's right, title, and interest in and to such improvements. Nothing in this subsection (c) shall be construed to deprive the tenant of any rights to reject payment under this subsection (c) and to obtain payment for such property interests in accordance with applicable law, other than this subsection (c).
(d) Any person, agency or other entity acquiring real property pursuant to the exercise of eminent domain shall as soon as practicable after the date of payment of the purchase price or the date of deposit into court of funds to satisfy the award of compensation in a condemnation proceeding to acquire real property, whichever is earlier, reimburse the owner, to the extent that such acquiring party deems fair and reasonable for expenses the owner necessarily incurred for:
1. (1) Recording fees, transfer taxes, and similar expenses incidental to conveying such real property to the acquiring party;
2. (2) Penalty costs for repayment of any preexisting recorded mortgage entered into in good faith encumbering such real property; and
3. (3) The pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting title in the acquiring party, or the effective date of possession by the acquiring party, whichever is earlier.

6 Backlinks

Chapter 17 Eminent Domain by Public Agencies

Part 1 Power and Use of Eminent Domain — General Provisions

§ 29-17-101. Legislative intent.

It is the intent of the general assembly that the power of eminent domain shall be used sparingly, and that laws permitting the use of eminent domain shall be narrowly construed so as not to enlarge, by inference or inadvertently, the power of eminent domain.

§ 29-17-102. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Eminent domain” means the authority conferred upon the government, and those entities to whom the government delegates such authority, to condemn and take, in whole or in part, the private property of another, so long as the property is taken for a legitimate public use in accordance with the fifth and fourteenth amendments to the United States Constitution, the Constitution of Tennessee, Art. I, § 21, and chapter 863 of the Public Acts of 2006; and
2. (2) “Public use” shall not include either private use or benefit, or the indirect public benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and increased employment opportunity, except as follows:
  1. (A) The acquisition of any interest in land necessary for a road, highway, bridge, or other structure, facility, or project used for public transportation;
  2. (B) The acquisition of any interest in land necessary to the function of a public or private utility, a governmental or quasi-governmental utility, a common carrier, or any entity authorized to exercise the power of eminent domain under title 65;
  3. (C) The acquisition of property by a housing authority or community development agency to implement an urban renewal or redevelopment plan in a blighted area, as authorized by title 13, chapter 20, part 2 or title 13, chapter 21, part 2; or
  4. (D) Private use that is merely incidental to a public use, so long as no land is condemned or taken primarily for the purpose of conveying or permitting the incidental private use.
  5. (E) [Deleted by 2017 amendment.]
  1 Backlink
  - 7-51-1903(2)

4 Backlinks

§ 29-17-103. Preemption.

In event of a conflict between this part and any other statutes granting the authority to use the power of eminent domain by government entities, or those entities to whom the government delegates such authority, this part shall control and shall be construed to protect the private property rights of individuals and businesses, such that private property may only be condemned and taken for legitimate public use as defined in § 29-17-102.

§ 29-17-104. Condemnation proceedings.

(a) Notwithstanding any law to the contrary, in any condemnation proceedings initiated in this state:
1. (1) Notice of the filing of a petition to institute condemnation proceedings shall be given to each respondent at least thirty (30) days prior to the taking of any additional steps in the case. If the respondent is unknown, is a nonresident of the state, or cannot be found, notice shall be given by publication, which shall be made in the same manner as provided by law for similar situations in chancery court; and
2. (2)
  1. (A) After the expiration of thirty (30) days from the date of the giving of notice, if the right to take has not been challenged in an answer, the condemner shall have the right to take possession of the property or property rights sought to be condemned; and
  2. (B) If the right to take is challenged in an answer within thirty (30) days from the date of the giving of notice, the court shall promptly determine, as a matter of law, whether the condemner has the right to take the property or property rights sought to be condemned. If the court determines that the condemner has the right to take, the condemner shall thereupon have the right to take possession thereof.
(b) When a condemner has the right to take possession of property or property rights, if necessary, the court shall issue a writ of possession to the sheriff of the county to put the condemner in possession. The writ may be issued prior to a trial on the damages.

§ 29-17-105. Deposit by the condemner.

If, pursuant to an applicable statute or order of the court, the condemner is required to deposit funds with the court in the amount the condemner deems to be the amount of damages to which the owner is entitled pursuant to the condemnation, and a respondent is not satisfied with the amount deposited by the condemner, or otherwise objects to the taking, then the respondent shall, on or before thirty (30) days from the date of notice of the filing of the petition, file an answer to the petition and a trial may thereafter be had before a petit jury, as other civil actions are tried. The deposit by the condemner shall not limit or fix the amount to be allowed under subsequent proceedings in the action.

§ 29-17-106. Taxing of costs.

(a) Notwithstanding any law to the contrary, in any condemnation proceeding initiated in this state, the bill of costs prepared by the clerk shall be taxed against:
1. (1) The condemner, if:
  1. (A) The amount of damages awarded at trial exceeds the amount assessed by the condemner and deposited with the clerk;
  2. (B) The condemnation is abandoned by the condemner; or
  3. (C) The final judgment is that the condemner cannot acquire the property or property rights by condemnation; or
2. (2) The respondents, if the amount of damages awarded at trial does not exceed the amount assessed by the condemner and deposited with the clerk.
(b)
1. (1) Notwithstanding any law to the contrary, in any condemnation proceeding initiated in this state in which interest in the property is being acquired for a public utility or for a road, highway, bridge, or other structure, facility, or project used for public transportation, the court shall award the respondents a sum that will reimburse them for their reasonable disbursements and expenses, including reasonable attorney, appraisal, and engineering fees actually incurred because of the action, only if the costs are taxed to the condemner pursuant to subdivision (a)(1)(B) or (a)(1)(C). The court shall not award this sum if the costs are taxed to the condemner pursuant to subdivision (a)(1)(A).
2. (2) Notwithstanding any law to the contrary, in any condemnation proceeding initiated in this state in which interest in the property is not being acquired for a public utility or for a road, highway, bridge, or other structure, facility, or project used for public transportation, the court shall award the respondents a sum that will reimburse them for their reasonable disbursements and expenses, including reasonable attorney, appraisal, and engineering fees actually incurred because of the action. The court shall not award reasonable attorney fees if the costs are taxed to the condemner pursuant to subdivision (a)(1)(A).
(c) Rule 54.04 of the Tennessee Rules of Civil Procedure shall govern the taxing of any additional costs.

Part 2 Counties

§ 29-17-201. County purposes.

Counties are empowered to condemn and take the property, buildings, privileges, rights, and easements of individuals and private corporations for any county purpose.

§ 29-17-202. County bridges.

All counties authorized to construct bridges are empowered to take and condemn the lands, property, buildings, and riparian and property rights, privileges, and easements of individuals and private corporations for approaches to such bridges and for bridge purposes, or which may be necessary for the construction or use of such bridges.

1 Backlink

29-17-203

§ 29-17-203. Taking bridge property pending litigation.

Pending the assessment of damages or any litigation in regard thereto, in any case of authorized taking and condemnation, the counties may give bond, with good and sufficient security payable to the owner or owners of such lands, property, buildings, riparian, or property rights, privileges, or easements, to pay promptly to the owner or owners any amount of damages which may be assessed by the jury as provided for in § 29-17-202; and, upon executing and filing such bond, may thereupon take such lands, property, buildings, riparian and property rights and privileges and easements.

Part 3 Municipalities

§ 29-17-301. Powers of municipalities.

All municipal corporations are empowered to take and condemn lands, property, property rights, privileges and easements of others for the purpose of constructing, laying, repairing, or extending sewers, water pipes, natural gas mains and pipes, or drainage ditches, both within and beyond the corporate limits of such cities, and of acquiring ingress and egress in the construction, repairing or maintenance thereof, and in making connection thereto; such property or interest in such property may be so acquired whether or not the same is owned or held for public use by corporations, associations or persons having the power of eminent domain, or otherwise held or used for public purpose; provided, that such prior public use will not be interfered with by this use.

§ 29-17-302. Procedure by municipalities.

The compensation for damages in taking such lands, property, property rights, privileges, and easements shall be paid by such municipalities, and same shall be condemned and determined in the mode and manner provided by §§ 7-31-108 — 7-31-111, and the rights and powers contained in such sections are extended to and conferred upon all of the municipal corporations.

Part 4 University of Tennessee

§ 29-17-401. University of Tennessee.

(a) The University of Tennessee has the power to condemn and appropriate such lands, property, property rights, privileges and easements of others as in the judgment of its board of trustees, or the executive committee thereof, may be necessary or proper for the purpose of providing buildings and other facilities, building sites, campus grounds, commons, streets, walkways, rights-of-way for utilities and other improvements, and for any extension, enlargement or improvement thereof, for the use and operation of such university and its various units and branches throughout the state.
(b) The compensation for damages in taking of such lands, property, property rights, privileges, and easements shall be paid by such university, and the same shall be condemned and determined in the mode and manner provided in chapter 16 of this title.

Part 5 Housing Authorities

§ 29-17-501. Housing authorities — Declaration of taking.

(a) No sooner than thirty (30) days after the filing of a petition by a housing authority, created pursuant to the Housing Authorities Law, compiled in title 13, chapter 20, or any other law of this state, for condemnation of property, and before the entry of final judgment, a housing authority may file with the clerk of the court in which the petition is filed a declaration of taking signed by the duly authorized officer or agent of the housing authority, declaring that all or any part of the property described in the petition is being taken for the use of the housing authority.
(b) The declaration of taking shall be sufficient if it sets forth:
1. (1) A description of the property, sufficient for the identification thereof, to which there may be attached a plat or map thereof;
2. (2) A statement of the estate or interest in such property being taken; and
3. (3) A statement of the sum of money estimated by the housing authority to be just compensation for the property taken, which sum shall be not less than the last assessed valuation for tax purposes of the estate or interest in the property to be taken.

1 Backlink

29-17-504(b)

§ 29-17-502. Withdrawal of petition.

At any time prior to the vesting of title to property in the housing authority, the authority may withdraw or dismiss its petition with respect to any and all of the property therein described.

§ 29-17-503. Vesting of title — Surrender of possession.

(a) From the filing of the declaration of taking and the deposit in court to the use of the persons entitled thereto of the amount of the estimated compensation stated in the declaration, title to the property described as being taken by the declaration shall vest in the housing authority, free from the right, title, interest or lien of all parties to the cause, and such property shall be deemed to be condemned and taken for the use of the housing authority, and the right to just compensation for the same shall vest in the persons entitled thereto.
(b) Upon the filing of the declaration of taking, the court shall designate a day, not exceeding twenty (20) days after such filing, except upon good cause shown, on which the persons in possession shall be required to surrender possession to the authority.

1 Backlink

29-17-504(b)

§ 29-17-504. Determination and payment of compensation.

(a) The ultimate amount of compensation shall be determined pursuant to chapter 16 of this title.
(b) In the event a housing authority files a declaration of taking and pays into court an amount estimated to be fair compensation for such property as provided in §§ 29-17-501 and 29-17-503, the property owner shall have the right to make written request to the clerk of the court wherein such funds have been deposited, to pay to such property owner without prejudice to any of the property owner's rights, the sum so deposited with the clerk, and the clerk shall pay to the owner the sum so deposited; provided the owner agrees to refund the difference between such sum and the final award in the case if the final award be less than the sum so paid into court or that a judgment may be entered against the owner in such case for the difference. Such payment to the property owner or into court shall in nowise limit or fix the amount to be allowed under subsequent proceedings in such case, and any further or additional sum that may be finally awarded in any subsequent proceedings shall bear interest from the date of taking possession of the property or property rights condemned by the condemner; provided, that no interest shall be allowed on the amount deposited with the clerk. The clerk shall be authorized to disburse the deficiency to the defendants as their interests may appear.
(c) In the event the housing authority shall not obtain possession of the property on the date of vesting of title, the ultimate amount of compensation, including any interest paid on the deficiency award, if any, shall be subject to abatement for use, income, rents, or profits derived from such property by the owner thereof subsequent to the vesting of title in the housing authority, and any funds disbursed shall be less the amount of abatement.

Part 6 Coast and Geodetic Surveys

§ 29-17-601. Coast and geodetic survey.

Any person employed under an act of congress of the United States, passed on August 6, 1947, and of the supplements thereto, or under the direction of congress, to provide charts and related information for the safe navigation of marine and air commerce and for other purposes, may enter upon lands within this state for the purpose of exploring, triangulating, leveling, surveying, and of doing any other act which may be necessary to carry out the objects of such laws, and may erect any works, stations, buildings, and appendages requisite for that purpose, doing no unnecessary injury thereby.

§ 29-17-602. Damages payable by geodetic survey.

If the person over whose lands the survey has been made, or upon whose lands monuments, stations, or buildings have been erected, or who has in any way sustained damage by such survey, cannot agree with the officer of the survey as to the damage sustained, the amount of such damage may be ascertained in the manner provided for the taking of private property for public uses.

Part 7 Action in Rem

§ 29-17-701. Action in rem — Title uncertain.

(a) Whenever the state of Tennessee or any county therein or the United States shall desire to take or damage private property in pursuance of any law so authorizing, and shall find or believe that the title of the apparent or presumptive owner of such property is defective, doubtful, incomplete or in controversy; or that there are or may be persons unknown or nonresidents who have or may have some claim or demand thereon, or some actual or contingent interest or estate therein; or that there are minors or persons under disability who are or may be interested therein; or that there are taxes due or that should be paid thereon; or shall, for any reason, conclude that it is desirable to have a judicial ascertainment of any question connected with the matter; the state, county or the United States as the condemner, through any authorized representative, either in term time or vacation, may petition the circuit court of the county having jurisdiction, for a judgment in rem against such property, condemning the same to the use of the petitioner upon payment of just and adequate compensation therefor to the person or persons entitled to such payment.
(b) After the expiration of ten (10) days from the date the petition for condemnation is filed in the circuit court, the petitioner shall have the right to thereupon enter upon and take possession of the land sought to be condemned, and if necessary to place such petitioner in possession thereof, the clerk of the circuit court in which the petition is filed shall issue to the petitioner, upon request, a writ of possession directed to the sheriff of the county to put the petitioner into possession of the land.

§ 29-17-702. Contents of petition.

(a) The petition shall set forth the facts showing the right to condemn; the property to be taken or damaged, a full description of which shall be filed as an exhibit to the petition; the names and residences of the persons whose property or rights are to be taken or otherwise affected, so far as known; shall describe the persons or classes of persons unknown, whose rights therein are to be excluded or otherwise affected; shall set forth such other facts as are necessary for a full understanding of the cause; and shall pray for such judgment of condemnation as may be proper and desired.
(b) If any of the persons referred to are minors or under disability, the facts shall be stated.

§ 29-17-703. Notice of hearing.

(a) The presiding judge may thereupon make an order requiring all persons concerned to appear at a time and place therein named, and make known their objections, if any, their rights, if any, their claims as to the value of the property or of their interest therein, and any other matters material to their respective rights, upon a day certain, not later than thirty (30) days after the issuance of process, which day shall be as early as may be convenient, having due regard to the necessities of notice, and shall in such order give appropriate directions for such notice and the service thereof.
(b) Such process shall be returned within twenty (20) days after its issuance.
(c) No service of a copy of the petition shall be necessary.
(d) Upon the return of process by the sheriff, if it shall appear that any of the defendants cannot be found or that they are nonresidents of the state, publication shall be made for them in the same manner as provided in §§ 21-1-203 — 21-1-205 for publications for nonresidents and parties unknown in chancery suits.

1 Backlink

29-17-708

§ 29-17-704. Parties bound — Defendants under disability.

(a) All parties having any interest or rights in such lands may be made defendants and proceedings shall only cover and affect the interest of those who are actually made parties, the unborn remaindermen being, however, bound by the proceedings to which all living persons in interest are parties.
(b) If it shall appear that any of the parties defendant are minors or otherwise under disability, the presiding judge shall appoint a guardian ad litem to represent them, whose compensation shall be fixed by the court and taxed as a part of the costs.

§ 29-17-705. Trial by jury.

If no objection be made to the acquisition of the land, or in case there is an agreed price between the petitioner and the presumptive or apparent owners of the property, the trial may be had before a jury at the first term of court after the return date; and in the discretion of the presiding judge all questions of title may be tried by the same jury at the same time.

§ 29-17-706. Jury of view.

(a) In case any party to the suit shall demand the appointment of a jury of view, the presiding judge shall appoint a jury of view as provided for in §§ 29-16-108 — 29-16-110 and 29-16-202.
(b) The order appointing the jury of view shall fix the date when they shall go upon the land; and in case no date is fixed, the sheriff shall give the parties or their agents, if residents of the county, three (3) days' notice of the time and place of going upon the land.
(c) The method of conduct and procedure after the appointment of the jury of view shall comply with §§ 29-16-112 — 29-16-119 and 29-16-203.

3 Backlinks

§ 29-17-707. Procedure after demand for jury of view.

(a) On the day named in the rule, or at any other time to which the hearing may be continued, the court, having first passed on and adjudged all questions touching service and notice, shall, after hearing from all persons responding and desiring to be heard, make such order as to the appointment of a jury of view as provided in § 29-17-706 and give all persons interested equal rights in the selection thereof. If, by reason of conflicting interests or otherwise, such equality of right cannot be preserved, the judge presiding shall make such order on the subject as shall secure a fair and impartial assessment, or may, in the judge's discretion, order the issue tried in the first instance by a jury.
(b) In any event, it shall be within the power of the court to hear such cause as speedily as may be consistent with justice and due process of law, and, if necessary, at the term at which it is filed, or the first term after filing.

§ 29-17-708. Payment of taxes.

It is the duty of any trustee or other officer charged with the collection of taxes, notified as required in § 29-17-703, to make known to the court in writing the taxes due on the property, and the court shall give such direction as will satisfy the same and discharge the lien thereof.

§ 29-17-709. Court control of proceedings.

All questions of law arising upon the pleadings or in any other way arising from the cause may be passed on by the presiding judge, who may, from time to time, in term or vacation make such orders and give such directions as are necessary to speed the cause, and as may be consistent with justice and due process of law; but no jury trial shall be had except in open court, except the hearing before the jury of view.

§ 29-17-710. Intervention or delayed pleadings.

(a) No provision contained in this part in reference to any rule or order, or time for responding thereto, shall be held or construed to exclude any person, as by way of default, from making known that person's right or claims in the property or in the fund arising therefrom within the time allowed.
(b) Any such person claiming any interest or any rights therein may file appropriate pleadings or intervention at any time before verdict or award, and be fully heard thereon.
(c) If any person, after judgment of condemnation, shall desire to come in and be heard on any claim to the fund or to any interest therein, the person shall be allowed to do so within not exceeding thirty (30) days.
(d) After condemnation is had and the fund paid into the registry of the court, the petitioner shall not be concerned with or affected by any subsequent proceedings unless upon appeal from the verdict or award as allowed in § 29-17-706.

§ 29-17-711. Award and judgment.

(a) The award or verdict, as the case may be, shall have respect, either to the entire and unencumbered fee, or to any separate claim against the property or interest therein as may be ordered, and may be molded under the direction of the court so as to do complete justice and avoid confusion of interests.
(b) It shall be within the power of the court, upon payment of the award or verdict into the registry of the court, to adjudge a condemnation of the title as sought in the petition, and give such direction as to the disposition of the fund as shall be proper, according to the rights of the several defendants, causing such pleadings to be filed and such issues made up as shall be appropriate for an ascertainment and determination of such rights.

§ 29-17-712. Recording of decree.

(a) When such condemnation is fully completed, the award, whether made by a jury of view or the verdict of a jury, together with the decree of the court based thereon and a minute description of the property or interest condemned, or a duly certified copy of such award, decree and description, may be filed and recorded in the records of deeds in the office of the register of the county where the land so condemned lies, and if the land lies in more than one (1) county, such filing and recording may be made in each county in which such land lies.
(b) The register shall be entitled to the same fees for such filing and recording as are now, or may hereafter be, allowed by law for the filing and recording of deeds; such fees to be paid by the party in whose favor such condemnation is had.

§ 29-17-713. Provisions supplemental.

This part shall not be construed as repealing any provisions of other statutes prescribing a method of procedure for the condemnation of private property, but as supplementary thereto and cumulative thereof in cases in which the state or any county or the United States is concerned, and is intended to make simpler and more effective the method of condemnation in those cases where conflicting interests or doubtful questions render a judicial supervision of the procedure desirable. In all particulars not otherwise herein specially provided for, the court shall conform its procedure as nearly as may be to the provisions of the statute and the same shall remain in force.

Part 8 Payments into Court

§ 29-17-801. Payments into court at commencement of condemnation proceedings.

(a) When a governmental entity or other person or entity with the power of eminent domain deems it necessary to condemn any property or property rights pursuant to this chapter or chapter 16 of this title, it shall deposit the amount determined by the required appraisal with the clerk of the circuit court having jurisdiction in the county in which the property or property rights, or a portion of the property or property rights, is located, and shall file a petition in the court asking that the property or property rights be condemned and decreed to the condemner.
(b) The payment into court shall in no way limit or fix the amount to be allowed under subsequent proceedings in such case, and any further or additional sum that may be finally awarded in any subsequent proceedings shall bear interest from the date of the taking of possession of the property or property rights condemned by the condemner.

1 Backlink

29-17-802

§ 29-17-802. Certain authorities excepted.

Section 29-17-801 shall apply only to condemnation proceedings instituted by the state of Tennessee, its counties, or municipalities, and shall not apply to any housing authority, association, or administration.

Part 9 Supplementary Method

§ 29-17-901. Eminent domain for state, county or municipal road purposes and for certain levee and drainage districts — Supplementary condemnation procedure for counties and municipalities.

(a)
1. (1) The state of Tennessee, its counties or municipalities are hereby authorized and empowered to acquire by the exercise of the power of eminent domain, in the manner hereinafter set out, such right-of-way, land, material, easements and rights as may be deemed necessary, suitable or desirable for the construction, reconstruction, maintenance, repair, drainage or protection of any street, road, highway, freeway or parkway by the official charged by law with the construction or maintenance of the same.
2. (2) Levee and drainage districts located in counties with a population of not less than thirty thousand (30,000) nor more than thirty-one thousand (31,000) according to the 1970 federal census or any subsequent federal census, created pursuant to title 69, chapter 6, are hereby authorized and empowered to acquire by the exercise of the power of eminent domain, in the manner hereinafter set out, such right-of-way, land, material, easements and rights as may be deemed necessary, suitable or desirable to construct levees, ditches, drains or watercourses, or to straighten, widen, deepen, or change natural watercourses in such districts.
  2 Backlinks
  - 29-17-902
  - 29-17-913(b)
(b) Sections 29-17-902 — 29-17-914 shall also be deemed, unless expressly stated to the contrary, and without incorporation or reference, to be a part of every section, or legislative act, present or future, which grants the power of condemnation to counties and municipalities for county and municipal purposes respectively, and the making of compensation in the manner therein set forth shall also be so implied; provided, that either party, upon filing a statement to that effect within five (5) days of the service or publication of the original petition, may elect to proceed under chapter 16 of this title or this chapter.

1 Backlink

29-17-902

§ 29-17-902. Deposit of amount of damages.

When a governmental entity or a levee or drainage district authorized to condemn by § 29-17-901(a)(2) deems it necessary or desirable to condemn any property or property rights as set out in § 29-17-901, it shall proceed to determine what it deems to be the amount of damages to which the owner is entitled because of the taking of such property or property rights, and shall deposit such amount with the clerk of the circuit or law court having jurisdiction in the county in which the same or a portion of the same is located, and shall file a petition in such court asking that the same be condemned and decreed to the condemner.

1 Backlink

29-17-901(b)

§ 29-17-903. Payments into court at commencement of condemnation proceedings — Notice — Possession of property.

(a) When a governmental entity or other person or entity with the power of eminent domain deems it necessary to condemn any property or property rights pursuant to this chapter or chapter 16 of this title, it shall deposit the amount determined by the required appraisal with the clerk of the circuit court having jurisdiction in the county in which the property or property rights, or a portion of the property or property rights, is located, and shall file a petition in the court asking that the same be condemned and decreed to the condemner.
(b) The payment into court shall in no way limit or fix the amount to be allowed under subsequent proceedings in the case, and any further or additional sum that may be finally awarded in any subsequent proceedings shall bear interest from the date of the taking of possession of the property or property rights condemned by the condemner.
(c) Notice of the filing of such petition shall be given the owner of the property or property rights at least thirty (30) days prior to the taking of any additional steps in the case. If the owner is a nonresident of the state or unknown, notice shall be given by publication as provided by law in similar cases in chancery.
(d) After the expiration of thirty (30) days from the date of the giving of such notice if the right to take is not questioned, the condemner shall have the right to take possession of the property or property rights sought to be condemned, and if necessary to place such condemner in possession thereof, the court shall issue a writ of possession to the sheriff of the county to put the condemner in possession.

§ 29-17-904. Acceptance by property owner of amount deposited.

If the owner is satisfied with the amount deposited by the condemner with the clerk of the court, the owner may file with the clerk a statement, duly sworn to, stating that the filer is the owner of the property or property rights described in the petition and that the owner accepts the amount deposited with the clerk as full settlement for the taking of such property or property rights and all damages occasioned to the residue of the property, and the clerk shall pay to the owner the amount deposited with the clerk, and the court, at its next term, shall enter a decree divesting the title to the property or property rights out of the owner and vesting the same in the condemner.

1 Backlink

29-17-907

§ 29-17-905. Trial when property owner does not accept deposit.

If the owner is not satisfied with the amount assessed by the condemner, the owner shall, on or before the second day of the regular term of the court next, after the serving of such notice, appear, except to the amount assessed by the condemner, and thereupon a trial may be had before a petit jury as other civil actions are tried.

2 Backlinks

§ 29-17-906. Payment of amount deposited pending trial.

If the owner asks for a trial as provided by § 29-17-905, the owner may, if desired, make written request to the clerk to pay to the owner, without prejudice to the rights of either party, the sum so deposited with the clerk, and the clerk shall pay to the owner the sum so deposited; provided the owner agrees to refund the difference between such sum and the final award in the case if the final award be less than the sum so paid to the owner or that a judgment may be entered against the owner in such case for the difference.

§ 29-17-907. Default of owner — Case set for hearing.

If the owner does not appear and accept the amount deposited by the condemner as provided in § 29-17-904 or does not appear and ask for a trial as provided by § 29-17-905, then the petition shall be taken as confessed and the case set for hearing upon the record and in the absence of the owner.

§ 29-17-908. Issues confined to amount of compensation — Determination of rights and interest of adverse claimants.

The only issue or question that shall be tried upon exception shall be the amount of compensation to be paid for the property or property rights taken, but in case of adverse claimants of such compensation, the court may require the adverse claimants to interplead, so as to fully determine the rights and interests of such claimants.

§ 29-17-909. Proper party defendant omitted — Amended petition.

If any person who is proper party defendant in the petition shall have been omitted from the petition, amendments to the same may be filed, which amendments, from the filing of the same, shall have the same effect as though contained in such petition.

§ 29-17-910. Manner of determining damages to which owner is entitled.

In all instances the amount to which an owner is entitled shall be determined by ascertaining the fair cash market value of the property or property rights taken and adding to the same the amount of incidental damage done to the residue of the owner's property, if any, after deducting from the incidental damages to the residue the value of all special benefits, if any, occasioned such residue by the construction of such street, road, highway, levee, ditch, drain, watercourse improvement (when such levee, ditch, drain, or watercourse improvement is condemned pursuant to § 29-17-901(a)(2)), freeway or parkway including, but not limited to, increased accessibility to the owner's property, greater convenience in the approach with vehicles, the advantages generally of a front on a more desirable roadway, better drainage, or increased attractiveness.

§ 29-17-911. Removal or destruction of a building or structure on land.

When any building or structure is situated wholly or in part upon the land sought to be acquired, the condemner may remove the same to adjoining land of the owner or may divide the same upon the line between the land sought to be acquired and the adjoining land, or may tear down or otherwise dispose of the same.

§ 29-17-912. Costs of trial.

(a)
1. (1) If the amount of compensation awarded at the trial shall exceed the amount assessed by the condemner and deposited with the clerk, then the bill of costs prepared by the clerk shall be taxed against the condemner. If the amount of compensation awarded at the trial is not in excess of the amount assessed by the condemner and deposited with the clerk, then the bill of costs prepared by the clerk may be taxed against the defendants.
2. (2) Rule 54.04, the Tennessee Rules of Civil Procedure, shall govern the taxing of any additional costs.
(b)
1. (1) Notwithstanding subsection (a), the state court having jurisdiction of a proceeding initiated by any person, agency or other entity to acquire real property for the purpose of a public utility or for a road, highway, bridge, or other structure, facility, or project used for public transportation by condemnation shall tax the bill of costs prepared by the clerk against the condemner and shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for the owner's reasonable disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of condemnation proceedings, only if:
  1. (A) The final judgment is that the acquiring party cannot acquire the real property by condemnation; or
  2. (B) The proceeding is abandoned by the acquiring party.
2. (2) Notwithstanding subsection (a), the state court having jurisdiction of a proceeding initiated by any person, agency, or other entity to acquire real property, which is not being acquired for a public utility or for a road, highway, bridge, or other structure, facility, or project used for public transportation, by condemnation shall tax the bill of costs prepared by the clerk against the condemner and shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for the owner's reasonable disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of condemnation proceedings; provided, that reasonable attorney fees shall be awarded only if:
  1. (A) The final judgment is that the acquiring party cannot acquire the real property by condemnation; or
  2. (B) The proceeding is abandoned by the acquiring party.

§ 29-17-913. Payment of judgments — Interest.

(a) All judgments rendered against a municipality, county or the state shall be paid out of the general funds of the municipality, county or state, whichever may be the condemner, together with interest at the rate of two percentage points (2%) greater than the prime loan rate established, as of the date of the taking, by the federal reserve system of the United States on any excess of the amount awarded an owner over the amount deposited with the clerk.
(b) All judgments rendered against a levee or drainage district, which condemns property in accordance with § 29-17-901(a)(2), shall be paid from funds collected as provided in title 69, chapter 6, together with interest at the rate of six percent (6%) on any excess of the amount awarded an owner over the amount deposited with the clerk.

§ 29-17-914. Provisions supplemental.

This part is not intended to repeal any existing statute relating to eminent domain, but is intended to be an accumulative or supplementary method of acquiring property by eminent domain proceedings.

1 Backlink

29-17-901(b)

Part 10 Miscellaneous Provisions

§ 29-17-1001. Continuance of condemnation trial.

In any case in which the state of Tennessee, its counties or municipalities exercise the power of eminent domain to acquire land for the construction, reconstruction, maintenance, repair, drainage or protection of any street, road, highway, freeway or parkway under this chapter and chapter 16 of this title or any other law, and the owner of the condemned property is not satisfied with the amount of damages offered, such owner may, upon motion filed with the proper court not less than ninety (90) days prior to the trial on the issue of damages, request that such trial be continued until the highway for which the land was condemned, or any work being done thereto, is completed. If the motion is timely and properly filed, it shall be granted.

§ 29-17-1002. Evidence.

If the trial of any such condemnation case is commenced prior to the completion of the highway for which the land was condemned, or any work being done thereto, maps, drawings or photographs of the land being condemned shall be admissible in evidence, provided the undertaking is substantially complete and such evidence would not misrepresent the same.

§ 29-17-1003. Transfer of land acquired by eminent domain.

(a) Land acquired by eminent domain that the acquiring entity seeks to dispose of may be sold, leased or otherwise transferred to another public or quasi-public entity or to a private person, corporation or other entity; provided, that the entity transferring the land receives at least fair market value for the land.
(b) Nothing in this section shall be construed to apply to or affect the disposal of the state's surplus interests in real property pursuant to § 12-2-112.

§ 29-17-1004. Appraisal required in any condemnation proceeding.

Notwithstanding any law to the contrary, in any condemnation proceeding in this state, an appraisal of the property must be obtained. The appraisal shall value the property considering its highest and best use, its use at the time of the taking, and any other uses to which the property is legally adaptable at the time of the taking. Any appraiser making an appraisal must possess the designation Member of the Appraisal Institute (MAI), or be an otherwise licensed and qualified appraiser under title 62, chapter 39.

§ 29-17-1005. Condemned property to be offered for sale to former owner under certain circumstances.

(a) In any case in which a local government exercises the power of eminent domain under this chapter, chapter 16 of this title, or any other law, and the local government determines the property condemned or taken by eminent domain is not used for the purpose or purposes for which it was condemned or for some other authorized public use, or if the local government subsequently decides to sell it within ten (10) years of being condemned or taken, the property shall be first offered for sale to the former property owner or owners from whom the property was condemned or taken.
(b) An agreement to purchase the property for the lesser of the following must be signed by the former property owner or owners within thirty (30) days of receipt of the offer:
1. (1) The price paid to the former property owner or owners by the local government at the time the local government acquired the property through eminent domain, plus the appraised fair market value of any improvements made to the property after condemnation and an amount equal to the average amount of interest that would have accrued on the amount paid to the former property owner or owners if held in United States treasury bonds; or
2. (2) An amount representing not less than the fair market value of the property as of the date of the purchase agreement.
(c) If the property is not purchased by the former property owner or owners within thirty (30) days or if no former property owner can be found following a good faith effort by the local government to do so, the property shall be offered for sale in any commercially reasonable manner to the general public for an amount not less than the fair market value, together with costs.
(d)
1. (1) In any case in which a local government exercises the power of eminent domain under this chapter, chapter 16 of this title, or any other law, for a public use, a former property owner may request from the local government a statement of intent for public use no more than once every twenty-four (24) months following the date of the condemnation.
2. (2) The statement of intent for public use must state the public use for which the local government intends to use the property and a description of the intended plan for any improvements to the property.
3. (3) Notwithstanding subdivision (d)(1), if the local government publicly discloses its decision to not use the property for a public use, then a former property owner may immediately request from the local government a new statement of intent for public use.
(e) Rights granted to a former property owner under this section do not transfer to the former property owner's heirs or transfer to any other party.
(f) This section does not apply if compliance is prohibited by federal law.
(g) As used in this section, “local government” means any incorporated city or town, county, or metropolitan government.

Chapter 18 Forcible Entry and Detainer

§ 29-18-101. Unlawful entry prohibited.

No person shall enter upon any lands, tenements, or other possessions, and detain or hold the same, but where entry is given by law, and then only in a peaceable manner.

1 Backlink

29-18-105

§ 29-18-102. Forcible entry and detainer defined — Where action does not lie.

(a) A forcible entry and detainer is where a person, by force or with weapons, or by breaking open the doors, windows, or other parts of the house, whether any person be in it or not, or by any kind of violence whatsoever, enters upon land, tenement, or possession, in the occupation of another, and detains and holds the same; or by threatening to kill, maim, or beat the party in possession; or by such words, circumstances, or actions, as have a natural tendency to excite fear or apprehension of danger; or by putting out of doors or carrying away the goods of the party in possession; or by entering peaceably and then turning or keeping the party out of possession by force or threat or other circumstances of terror.
(b) No action for forcible entry and detainer shall lie against any tenant who has paid all rent due for current occupancy of the premises and who is not in violation of any law nor otherwise in breach of the tenant's written lease, but this subsection (b) shall not apply in any manner to farm property, nor shall this subsection (b) be construed to alter or amend any valid lease agreement in effect on May 31, 1979.

1 Backlink

29-18-103

§ 29-18-103. Forcible detainer defined.

A forcible detainer is where a person enters lawfully or peaceably, and holds unlawfully, and by any of the means enumerated in § 29-18-102 as constituting a forcible entry.

§ 29-18-104. Unlawful detainer defined.

Unlawful detainer is where the defendant enters by contract, either as tenant or as assignee of a tenant, or as personal representative of a tenant, or as subtenant, or by collusion with a tenant, and, in either case, willfully and without force, holds over the possession from the landlord, or the assignee of the remainder or reversion.

1 Backlink

29-18-105

§ 29-18-105. Scope of definitions.

Sections 29-18-101 — 29-18-104 extend to and comprehend terms for years, and all estates, whether freehold or less than freehold.

§ 29-18-106. Alternative actions.

Where the action is to recover real property, ejectment, or forcible or unlawful entry or detainer may be brought.

§ 29-18-107. Jurisdiction of general sessions judge.

All cases of forcible entry and detainer, forcible detainer, and unlawful detainer, may be tried before any one (1) judge of the court of general sessions of the county in which the acts are committed, who shall decide the particular case, and all questions of law and fact arising.

§ 29-18-108. Original jurisdiction of circuit court.

The action for the recovery of the possession of land, given in this chapter, may also be originally instituted in the circuit court, the same forms being substantially pursued as those prescribed, the process being issued by the clerk, the plaintiff first giving bond and security to answer costs and damages as provided in § 29-18-111.

§ 29-18-109. Limitation of actions.

The uninterrupted occupation or quiet possession of the premises in controversy by the defendant, for the space of three (3) entire years together, immediately preceding the commencement of the action, is, if the estate of the defendant has not determined within that time, a bar to any proceeding under this chapter.

§ 29-18-110. Death of parties.

(a) The heir or representative of the person who might have been plaintiff, if alive, may bring the suit after the potential plantiff's death.
(b) If either party die during the pendency of the suit, it may be revived by or against the heirs or legal representatives of the decedent, in the same manner and to the same extent as real actions.

§ 29-18-111. Plaintiff's bond.

The party complaining is required, before the issuance of the writ, to give bond, with good security, to pay all costs and damages which shall accrue to the defendant for the wrongful prosecution of the suit.

1 Backlink

29-18-108

§ 29-18-112. Form of warrant.

The warrant may be issued by a single general sessions judge in the following form:
1. State of Tennessee,
2. To the sheriff or any constable of such county:
3. County.
4. Whereas, complaint is made to me by A B, of a certain forcible and unlawful entry and detainer, made by C D, into and of a certain tract or lot of land, situated in the county aforementioned, and bounded [or known and described] as follows [insert boundaries and description], which land A B alleges A B is entitled to the possession of, and C D unlawfully detains from A B: We, therefore, command you to summon C D to appear before some judge of the court of general sessions, in and for such county, to answer the above complaint.
5. This day of , 20. E F, G.S.J.

§ 29-18-113. Notice to quit not required.

No notice to quit need be given by the plaintiff to the defendant, other than the service of this warrant.

§ 29-18-114. Defects in proceedings.

The warrant need not set forth the particular species of entry or detainer, and any defect therein, or in any of the proceedings, may be amended as other process and pleadings in court.

§ 29-18-115. Method of serving summons.

(a)
1. (1) In commencing an action under this chapter, summons may be served upon any adult person found in possession of the premises, which includes any adult person occupying the premises; and service of process upon such party in possession shall be good and sufficient to enable the landlord to regain possession of such landlord's property. In the event the summons cannot be served upon any adult person found in possession of the premises, personal service of process on the defendant is dispensed with in the following cases:
  1. (A) When the defendant is a nonresident of this state;
  2. (B) When, upon inquiry at the defendant's usual place of abode, the defendant cannot be found, so as to be served with process, and there is just ground to believe that the defendant has gone beyond the limits of the state;
  3. (C) When the summons has been returned “not to be found in my county”;
  4. (D) When the name of the defendant is unknown and cannot be ascertained upon diligent inquiry;
  5. (E) When the residence of the defendant is unknown and cannot be ascertained upon diligent inquiry; or
  6. (F) When a domestic corporation has ceased to do business and has no known officers, directors, trustee, or other legal representatives, on whom personal service may be had.
2. (2) In those cases specified in subdivision (a)(1), where personal service of process on the defendant is dispensed with, the proceeding shall be governed by §§ 21-1-203 — 21-1-205, and in addition thereto, the plaintiff shall post or cause to be posted on the front door or other front portion of the premises a copy of the publication notice at least fifteen (15) days prior to the date specified therein for the defendant to appear and make a defense.
3. (3) In addition to the methods set out in subdivisions (a)(1) and (2), in commencing an action under this chapter, summons may be served upon a contractually named party, and service of process upon such party shall be good and sufficient to enable the landlord to regain possession of the landlord's property.
(b) In commencing an action under this chapter, service of process may be made by the plaintiff, the plaintiff's attorney, or the plaintiff's agent, in lieu of subsection (a), by lodging the original summons and a copy certified by the clerk with the sheriff or constable of the county in which suit is brought, who shall promptly send postage prepaid a certified copy by certified return receipt mail to the individual as follows:
1. (1) In the case of an individual defendant, to the party named;
2. (2) In the case of a domestic corporation or a foreign corporation doing business in this state, to an officer or managing agent thereof, or to the chief agent in the county where the action is brought or to any other agent authorized by appointment or by law to receive service on behalf of the corporation; or
3. (3) In the case of a partnership or an unincorporated association which is a named defendant under a common name, to a partner or managing agent of the partnership or to an officer or managing agent of the association, or to an agent authorized by appointment or by law to receive service on behalf of the partnership or association.
(c) In any case in which such warrant or process is returned undelivered for any reason whatsoever, service of process shall then be made as otherwise provided by law.
(d)
1. (1) The original process, endorsed as indicated below, an affidavit of the appropriate sheriff or constable setting forth the sheriff or constable's compliance with the requirements of the preceding provisions, and the return receipt signed by the defendant shall be attached together and sent to and filed by the clerk of the court of general sessions. There shall be endorsed on the original warrant by the sheriff or constable over the sheriff or constable's signature the date of the sheriff or constable's mailing the certified copy to the defendant; thereupon service of the defendant shall be consummated. An act of a deputy of the sheriff in the sheriff's behalf hereunder shall be deemed the equivalent of the act of the latter.
2. (2) When service of process by mail is made upon one (1) or more individual defendants, service of process shall not be complete as to any individual unless a return receipt, signed or acknowledged on its face by the individual personally, is returned to the deputy sheriff or constable.
(e)
1. (1) In addition to the methods set out in this section, service of process for an action commenced under this chapter shall be good and sufficient to enable the landlord to regain possession of such landlord's property if a sheriff, sheriff's deputy, constable, or private process server personally serves a copy of the warrant or summons upon any one (1) named defendant who has a contractual or possessory property right in the subject premises.
2. (2) If, after attempting personal service of process on three (3) different dates and documenting such attempts on the face of the warrant, the sheriff, sheriff's deputy, constable, or private process server is unable to serve any such one (1) named defendant personally, service of process for determining the right of possession of the subject premises as to all who may have a contractual or possessory property right therein may be had by the sheriff, sheriff's deputy, constable, or private process server taking the following actions at least six (6) days prior to the date specified therein for the defendant or defendants to appear and make a defense:
  1. (A) Posting a copy of the warrant or summons on the door of the premises;
  2. (B) Sending by United States postal service first class mail a copy of the warrant or summons to the so named defendant or defendants at the address of the subject premises or the defendants' last known address, if any; and
  3. (C) Making an entry of this action on the face of the warrant or summons filed in the action.
3. (3) Subdivision (e)(2) shall apply only to service of process to regain possession of real property, and shall not apply to service of process to recover monetary judgment.

1 Backlink

8-8-201(b)(1)

§ 29-18-116. Neglect to execute process.

Any officer neglecting or refusing to execute any process, under this chapter, shall forfeit two hundred fifty dollars ($250) to the party aggrieved, to be recovered with costs before any tribunal having jurisdiction thereof.

§ 29-18-117. Time of trial.

The officer serving the warrant shall notify the defendant of the time and place of trial, the time not to be less than six (6) days from the date of service.

§ 29-18-118. Postponement of trial.

The general sessions judge may, at the request of either party, and on good reason being assigned, postpone the trial to any time not exceeding fifteen (15) days. The postponement shall not be for a longer period of time unless agreed upon by the parties, no civil court is being conducted, or upon request of the plaintiff, the party making the application for postponement paying the costs. As used in this section, “civil court” includes diversionary courts created for special civil proceedings.

§ 29-18-119. Manner of trial — Title not inquired into.

(a) The cause shall be tried at the time and place designated, by a single general sessions judge, without the intervention of a jury, and in all respects like other civil suits before the court of general sessions.
(b) The general sessions judge will try every case upon its merits and ascertain whether the plaintiff or defendant is entitled to the possession of the premises agreeably to the laws governing such cases, and give judgment accordingly.
(c) The estate, or merits of the title, shall not be inquired into.

§ 29-18-120. Trial in circuit court.

(a) Actions originally instituted in the circuit court will stand for trial at the first term after the pleadings are complete.
(b) The jury, if it finds for the plaintiff, will ascertain the damages the plaintiff has sustained, including rent, and judgment shall be given accordingly.

§ 29-18-121. Subpoenas.

The general sessions judge before whom the complaint is made, or the one before whom the cause is to be tried, may issue subpoenas for witnesses into any county of the state.

§ 29-18-122. Fees.

(a) The general sessions judge is entitled to one dollar ($1.00) per day for trying cases of forcible entry and detainer, forcible detainer, or unlawful detainer.
(b) The officer is entitled to two dollars and fifty cents ($2.50) for each defendant named in the original process, and one dollar ($1.00) for each witness summoned.
(c) Each witness shall receive one dollar ($1.00) for each day's attendance.

§ 29-18-123. Bond to confess judgment at termination of lease — Judgment and writ.

(a) Any person, granting a lease of lands, tenements, and hereditaments, may incorporate or take from the tenant a bond covenanting to deliver possession of the rented premises on the day specified therein as the end of the term of the lease, and further authorizing the party from whom the premises are rented, or any other person whose name may be mentioned as attorney, in case possession of the premises is not delivered in conformity with the provisions of the lease, to appear on any day of the term of any court having jurisdiction in such case, the term of such court to be expressly named, and the premises to be sufficiently described in the bond, and then and there, in the name of the party executing the bond, confess a judgment for possession of the rented premises.
(b) Upon presentation of the bond, and satisfactory proof of its execution, the court shall enter judgment for possession and also for costs of the proceeding, in favor of the party granting the lease against the tenant thus unlawfully holding over.
(c) The writ of possession shall have effect to dispossess any party in possession who holds as assignee or sublessee of the original tenant.

§ 29-18-124. Form of judgment for plaintiff.

The judgment for the plaintiff should be endorsed on the warrant or annexed thereto, substantially to the following effect:
1. A B Judgment for the plaintiff, that plaintiff be restored to possession of
2. the
3. v. land described in the within warrant, and that a writ of possession
4. C D or restitution issue therefor, and also for the costs of suit. This
5. day of , 20. E F, G.S.J.

§ 29-18-125. Monetary judgments for plaintiff.

In all cases of forcible entry and detainer, forcible detainer, and unlawful detainer, the judge of the court of general sessions trying the cause shall be authorized and it shall be the judge's duty to ascertain the arrearage of rent, interest, and damages, if any, and render judgment therefor if the judge's judgment shall be that the plaintiff recover possession.

§ 29-18-126. Delay before execution.

No execution or writ of possession shall issue against the defendant upon any judgment, under this chapter, until after the lapse of ten (10) days from the rendition of the judgment.

§ 29-18-127. Form of execution and writ — Disposition of personal property following defendant's removal from property.

(a) The execution for costs shall issue in the usual form, and the writ of possession may be as follows:
1. State of Tennessee,
2. To the sheriff or any constable of such county: County.
3. Whereas, at a trial of forcible and unlawful detainer had in such county on the day of , 20, before E F, a judge of the court of general sessions of such county, judgment was given that A B recover from C D possession of a certain tract or parcel of land, bounded [or known and described] as follows [insert the description in the warrant]: We therefore command you, that you take with you the force of the county, if necessary, and cause A B, the plaintiff in such judgment, to have and be restored to the possession of such tract or parcel of land, and that you remove C D, the defendant in such judgment, therefrom, and give such plaintiff peaceable possession of such premises, and make return to me in twenty (20) days how you have executed this writ.
4. This day of , 20. E F, G.S.J.
(b)
1. (1) Upon removing the defendant in any judgment under this chapter, the plaintiff or a designated representative of the plaintiff, shall place the defendant's personal property:
  1. (A) On the premises from which the defendant is being removed;
  2. (B) In an appropriate area clear of the entrance to the premises; and
  3. (C) At a reasonable distance from any roadway.
2. (2) The plaintiff or a designated representative of the plaintiff shall not disturb the defendant's personal property for forty-eight (48) hours. After such forty-eight (48) hours, the remaining personal property of the defendant may be discarded by the plaintiff or a designated representative of the plaintiff.
(c)
1. (1) All actions of any county, municipality, metropolitan form of government or other local government relative to the disposition of personal property after the execution of a writ of possession shall be temporarily suspended during the forty-eight-hour time period created pursuant to subsection (b).
2. (2) Notwithstanding subdivision (c)(1), a county, municipality, metropolitan form of government or other local government shall not be liable for any damages to the defendant's personal property.
(d) The plaintiff or a designated representative of the plaintiff, acting in accordance with this section, shall not be liable for any damages to the defendant's personal property during or after the forty-eight-hour time period, unless it can be established by clear and convincing evidence that the damages resulted from a malicious act or malicious omission of the plaintiff or a designated representative of the plaintiff.

§ 29-18-128. Appeal.

An appeal will also lie in suits commenced before general sessions judges, under this chapter, within the ten (10) days allowed by § 27-5-108, as in other cases, the appellant, if the defendant, giving bond as in the case of a certiorari.

§ 29-18-129. Certiorari and supersedeas to circuit court.

The proceedings in such actions may, within thirty (30) days after the rendition of judgment, be removed to the circuit court by writs of certiorari and supersedeas, which it shall be the duty of the judge to grant, upon petition, if merits are sufficiently set forth, and to require from the applicant a bond, with security sufficient to cover all costs and damages; and, if the defendant below be the applicant, then the bond and security shall be of sufficient amount to cover, besides costs and damages, the value of the rent of the premises during the litigation.

§ 29-18-130. Immediate execution of writ of possession — Bond, cash deposit, or letter of credit pending appeal.

(a) When judgment is rendered in favor of the plaintiff, in any action of forcible entry and detainer, forcible detainer, or unlawful detainer, brought before a judge of the court of general sessions, and a writ of possession is awarded, the same shall be executed and the plaintiff restored to the possession immediately.
(b)
1. (1) If the defendant pray an appeal, then, in that case, the plaintiff shall execute bond, with good and sufficient security, in double the value of one (1) year's rent of the premises, conditioned to pay all costs and damages accruing from the wrongful enforcement of such writ, and to abide by and perform whatever judgment may be rendered by the appellate court in the final hearing of the cause.
2. (2)
  1. (A) If the defendant prays an appeal, then the defendant must execute bond, or post either a cash deposit or irrevocable letter of credit from a regulated financial institution, or provide two (2) good personal sureties with good and sufficient security in the amount of one (1) year's rent of the premises, conditioned to pay all costs and damages accruing from the failure of the appeal, including rent and interest on the judgment as provided for in this section, and to abide by and perform whatever judgment may be rendered by the appellate court in the final hearing of the cause.
  2. (B) The plaintiff is not required to post a bond to obtain possession if the defendant appeals without complying with this subdivision (b)(2). The plaintiff is entitled to interest on the judgment, which accrues from the date of the judgment if the defendant's appeal fails.

§ 29-18-131. Monetary judgment in circuit court.

(a) If the defendant obtain certiorari, and, upon trial in the circuit court, the jury find that the plaintiff is entitled to the possession of the land, the jury shall also ascertain the value of the rents during the time the plaintiff has been kept out of possession, and such other damages as the plaintiff is entitled to, and the court shall give judgment against the defendant and the defendant's sureties for the amount.
(b) Should the cause be taken to the circuit court by the plaintiff, and a verdict be found in the plaintiff's favor, the jury shall, in like manner, ascertain the value of the rents, and the damages the jury may consider the plaintiff entitled to, and return the amount in its verdict, upon which the court shall give judgment accordingly.

§ 29-18-132. [Reserved.]

§ 29-18-133. Penalty for resuming possession.

(a) A person, once dispossessed by action, who again illegally possesses the premises, commits a Class C misdemeanor.
(b) The only evidence, required or admitted on the trial of the criminal charge, is that the defendant was turned out of possession by action brought for the purpose, and that the defendant has again taken possession of the premises.

§ 29-18-134. Trespass action.

The judgment in a case of forcible entry and detainer shall be no bar to an action against the defendant for trespass.

Chapter 19 Gambling Contracts

§ 29-19-101. Void contracts.

All contracts founded, in whole or in part, on a gambling or wagering consideration, shall be void to the extent of such consideration.

1 Backlink

4-49-113

§ 29-19-102. Action barred.

No money, or property of any kind, won by any species or mode of gambling, shall be recovered by action.

§ 29-19-103. Qui tam for bringing action.

Any person who institutes an action for money or property, claimed under a contract founded on a gambling consideration, shall forfeit one hundred dollars ($100), recoverable in any court having cognizance; one half (½) to the person who shall sue therefor, the other one half (½) to the county in which action is brought.

§ 29-19-104. Action for property lost.

Any person who has paid any money, or delivered anything of value, lost upon any game or wager, may recover such money, thing, or its value, by action commenced within ninety (90) days from the time of such payment or delivery.

§ 29-19-105. Action for use of family.

Any other person may, after the expiration of the ninety (90) days, and within twelve (12) months thereafter, recover the amount of such money, thing, or its value, by action for the use of the spouse; or, if no spouse, the child or children; and, if no child or children, the next of kin of the loser.

1 Backlink

29-19-106

§ 29-19-106. Action by creditor.

After the expiration of the time prescribed in § 29-19-105, and within twelve (12) months thereafter, any creditor of such losing party may, by garnishment or action, recover the amount of such money, thing, or its value, in satisfaction of so much of the creditor's debt.

Chapter 20 Governmental Tort Liability

Part 1 General Provisions

§ 29-20-101. Title.

This chapter shall be known and cited as the “Tennessee Governmental Tort Liability Act.”

§ 29-20-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:
1. (1) “Claim” means any claim brought against a governmental entity or its employee as permitted by this chapter;
2. (2) “Employee” means and includes any official (whether elected or appointed), officer, employee or servant, or any member of any board, agency, or commission (whether compensated or not), or any officer, employee or servant thereof, of a governmental entity, including the sheriff and the sheriff's employees and, further including regular members of voluntary or auxiliary firefighting, police, or emergency assistance organizations;
3. (3)
  1. (A) “Governmental entity” means any political subdivision of the state of Tennessee including, but not limited to, any municipality, metropolitan government, county, utility district, school district, nonprofit volunteer fire department receiving funds appropriated by a county legislative body or a legislative body of a municipality, human resource agency, community action agency or nonprofit corporation that administers the Head Start or Community Service Block Grant programs, public building authority, and development district created and existing pursuant to the constitution and laws of Tennessee, or any instrumentality of government created by any one (1) or more of the named local governmental entities or by an act of the general assembly. “Governmental entity” also means a nonprofit public benefit corporation or charitable entity, including any entity with tax exempt status under the Internal Revenue Code § 501(c)(3) (26 U.S.C. § 501(c)(3)), that is appointed by statute, ordinance, resolution, contract, or other governmental directive to develop, maintain, manage, and provide services and activities at government owned property that is a public park, including facilities located on park property;
  2. (B)
    1. (i) In any county having a population not less than eight hundred ninety-seven thousand four hundred (897,400) and not more than eight hundred ninety-seven thousand five hundred (897,500), according to the 2000 federal census or any subsequent federal census, “governmental entity” means any political subdivision of the state of Tennessee including, but not limited to, any municipality, county, utility district, school district, nonprofit volunteer fire department receiving funds appropriated by a county legislative body or a legislative body of a municipality, human resource agency, community action agency or nonprofit corporation that administers the Head Start or Community Service Block Grant programs, public building authority, development district created and existing pursuant to the constitution and laws of Tennessee, or any instrumentality of government created by any one (1) or more of the local governmental entities named in this subdivision (3)(B) or by an act of the general assembly, or nonprofit public benefit corporation operating a hospital whose voting board of directors or governing body is appointed, designated or elected by one (1) or more of the local governmental entities named in this subdivision (3)(B), and which hospital corporation either:
      1. (a) Receives funds appropriated by a county legislative body or a legislative body of a municipality; or
      2. (b) Receives or leases hospital real property from a county and/or municipality.
    2. (ii) Such hospital corporation shall be subject to the Open Meetings Law, compiled in title 8, chapter 44, and subject to the Open Records Law, compiled in title 10, chapter 7, to the extent that other local government hospitals and government hospital authorities are subject to such laws;
    3. (iii) This subdivision (3)(B) shall apply to all claims filed on or after July 1, 2003;
  3. (C) In any county having a population not less than five hundred sixty-nine thousand eight hundred (569,800) nor more than five hundred sixty-nine thousand nine hundred (569,900), according to the 2000 federal census or any subsequent federal census, “governmental entity” also means a nonprofit public benefit corporation or charitable entity, including an entity with tax exempt status under Internal Revenue Code § 501(c)(3), codified in 26 U.S.C. § 501(c)(3), that operates or is created to operate, in conjunction with a metropolitan hospital authority, where such authority was formed pursuant to the Metropolitan Hospital Authority Act, compiled in title 7, chapter 57; and
  4. (D) “Governmental entity” also means a nonprofit property owners association that:
    1. (i) Has received a determination of exemption from the internal revenue service under the federal Internal Revenue Code § 501(c)(4) (26 U.S.C. § 501(c)(4));
    2. (ii) Maintains more than one hundred (100) miles of roadway;
    3. (iii) Owns and operates a water or sewer distribution service;
    4. (iv) Appropriates funds to support a nonprofit volunteer fire department or a police department;
    5. (v) Manages trash pick-up services;
    6. (vi) Funds, operates, and maintains at least one (1) park, recreation facility, walking trail, and dog park; and
    7. (vii) Is a census designated place according to the 2010 federal census;
4. (4) “Injury” means death, injury to a person, damage to or loss of property or any other injury that one may suffer to one's person, or estate, that would be actionable if inflicted by a private person or such person's agent.

4 Backlinks

§ 29-20-103. Application of chapter.

(a)
1. (1) Any governmental entity may exempt itself from this chapter by action of its legislative body if such action is taken by January 1, 1975; provided, that §§ 7-31-103, 7-31-112, 7-51-202 (repealed) and 7-51-203, shall apply to any governmental entity exempting itself from this chapter.
2. (2) Any governmental entity exempting itself from this chapter may by resolution of its governing body elect at any time to come under this chapter, provided, that this chapter would only apply to claims or actions arising after the effective date of such resolution.
(b) After January 1, 1976, this chapter shall apply to all governmental entities as defined herein, provided that as to those governmental entities exempting themselves, as provided for in the preceding subsection, this chapter will only apply to claims or actions arising after January 1, 1976.
(c) Nothing in this chapter shall be deemed to deprive any person of any cause of action or damages to which they are otherwise entitled arising under the federal Civil Rights Acts of 1871 and 1964, as amended.

1 Backlink

29-20-104(a)

§ 29-20-104. Applicability of other laws.

(a) Sections 7-31-103, 7-31-112, 7-51-202 [repealed] and 7-51-203, and all other acts or statutes in conflict with this chapter shall only be applicable to governmental entities exercising their right not to come under this chapter as provided for by § 29-20-103.
(b) Notwithstanding any other law to the contrary, §§ 28-1-106 — 28-1-108 shall apply in causes of action arising pursuant to this chapter.

§ 29-20-105. Inverse condemnation not affected.

This chapter shall not apply to any action in eminent domain initiated by a landowner under §§ 29-16-123 and 29-16-124 nor be construed to impliedly repeal those statutes.

§ 29-20-106. Workers' compensation not affected.

This chapter shall not apply to any action brought by an employee under the workers' compensation laws of Tennessee.

§ 29-20-107. Definition of government employee for tort liability purposes.

(a) Any person who is not an elected or appointed official or a member of a board, agency or commission shall not be considered an employee of a governmental entity for purposes of this chapter unless the court specifically finds that all of the following elements exist:
1. (1) The governmental entity itself selected and engaged the person in question to perform services;
2. (2) The governmental entity itself is liable for the payment of compensation for the performance of such services and the person receives all of such person's compensation directly from the payroll department of the governmental entity in question;
3. (3) The person receives the same benefits as all other employees of the governmental entity in question including retirement benefits and the eligibility to participate in insurance programs;
4. (4) The person acts under the control and direction of the governmental entity not only as to the result to be accomplished but as to the means and details by which the result is accomplished; and
5. (5) The person is entitled to the same job protection system and rules, such as civil service or grievance procedures, as are other persons employed by the governmental entity in question.
(b) A governmental entity's reservation of the right to approve employment or terminate employment by any contract, agreement or other means or such entity's ability to control or direct a person not otherwise in the regular employ of such entity shall not operate to make a person an employee of such entity for the purpose of the immunity granted by this chapter unless such person otherwise qualifies as an employee according to this section.
(c) No governmental entity may extend the immunity granted by this chapter to independent contractors or other persons or entities by contract, agreement or other means, nor shall the doctrine of borrowed servants operate to make any person a governmental entity employee for the purpose of immunity who does not otherwise meet all of the elements set out in this section.
(d) A regular member of a voluntary or auxiliary firefighting, police or emergency assistance organization of a governmental entity shall be considered to be an employee of that governmental entity for purposes of this chapter without regard to the elements set forth in subsection (a).
1 Backlink
- 29-20-310(e)(3)
(e) Persons who are employed in part-time, seasonal, or probationary positions by a governmental entity shall not be disqualified by subdivision (a)(3) or (a)(5) from the immunity granted by this chapter if they receive the same benefits or are subject to the same job protection system and rules as other persons employed by that government in comparable part-time, seasonal, or probationary positions.
(f) Agreements between governmental entities entered into pursuant to the Interlocal Cooperation Act, title 12, chapter 9, or as otherwise duly authorized by law, may confer or determine the status of an employee for purposes of this chapter on persons without regard to the elements set forth in subsection (a). Such agreements may provide, but are not, limited to, agreements that an employee of a governmental entity, including, but not limited to, police officers shall be assigned to another governmental entity to serve a particular purpose. The agreement may provide which of the governmental entities shall be liable for the acts of such person who shall continue to be considered as an employee for purposes of this chapter.
1 Backlink
- 58-8-109(c)
(g)
1. (1)
  1. (A) Notwithstanding any provision of this chapter to the contrary, non-governmental independent contractors or other persons or entities that contract with or enter into any agreements with the regional transportation authority, as defined and created in title 64, chapter 8, for the provision of commuter rail transit services, facilities, or functions upon a rail line or rail line right-of-way owned and maintained by a governmental entity shall be granted limited tort exposure under this chapter. This grant of limited tort exposure shall be provided only when the non-governmental independent contractors or other persons or entities are providing by contract or agreement the rail transit services, facilities, or functions that title 64, chapter 8 authorizes the regional transportation authority to perform.
  2. (B) In performing or providing such rail transit services, facilities, or functions, the non-governmental independent contractors or other persons or entities are deemed to be the functional equivalent of the regional transportation authority. They are performing or providing these rail transit services, facilities, or functions in the stead of the regional transportation authority and by such are fulfilling a public purpose that is authorized to be performed by the regional transportation authority. The regional transportation authority shall enter into such contracts or agreements because it has been determined by the board of the regional transportation authority to be more cost effective to contract or enter into an agreement for the rail transit services, facilities, or functions. When the regional transportation authority's independent contractor or other person or entity that provides these rail transit services, facilities, or functions is deemed to be the functional equivalent of the regional transportation authority as provided for in this subsection (g), then the regional transportation authority's contracting party or party to the agreement shall have limited tort exposure as long as the regional transportation authority's contracting party or party to the agreement was performing rail transit services, facilities or functions within the scope of work and during the normal course of work of the contract or agreement when the accident occurred. The regional transportation authority's contracting party or party to the agreement will not be afforded any limits to its tort exposure for gross negligence in the performance of the contract or agreement.
  3. (C) For any rail transit accident, occurrence, or act, the limits of tort exposure for the regional transportation authority's contracting party or party to the agreement shall be two million dollars ($2,000,000) for bodily injury or death of any one (1) person in any one (1) accident, occurrence or act, and thirty million dollars ($30,000,000) for bodily injury or death of all persons in any one (1) accident, occurrence, or act arising or that occurred during that time frame. No tort liability limits shall be granted to the non-governmental contractor or other persons or entities that contract with or enter into any agreement with the regional transportation authority for injury to or destruction of property in any accident, occurrence, or act. The regional transportation authority shall maintain, or cause to be maintained, a self insurance retention fund in a minimum amount of one million dollars ($1,000,000) up to an amount not to exceed two million dollars ($2,000,000), which shall be utilized as a first fund source for any payment of a tort claim arising from any rail transit accident, occurrence or act that results in bodily injury or death to one (1) or more persons.
2. (2) The limits of liability prescribed under subdivision (g)(1) shall not apply to any for-profit owners of rail lines or rail line rights-of-way. As a matter of public policy, the general assembly declares and deems the operation of the regional transportation authority's commuter rail train to be a public purpose, a public and governmental function and a matter of public necessity.

1 Backlink

29-20-313(a)

§ 29-20-108. Immunity of emergency communications district boards, state, counties, and municipalities and employees — Exceptions.

(a) Emergency communications district boards, established in § 7-86-105, and the members of such board shall be immune from any claim, complaint or suit of any nature which relates to or arises from the conduct of the affairs of the board except in cases of gross negligence by such board or its members. The finding of the general assembly is that the service of such boards and the members thereof is so critical to the safety and welfare of the citizens of this state that such absolute and complete immunity is required for the free exercise of the duties of such boards by the members.
(b) Such immunity shall also extend to employees of an emergency communications district, and county and municipal governments for the acts or omissions of employees that manage, supervise, or perform 911 emergency communications service as communicators or dispatchers; provided, that all such employees shall attain and maintain training requirements as may be required by state law.
(c) An emergency call taker or public safety dispatcher who assists or instructs a caller or bystander on T-CPR is not liable for any civil damages or subject to a civil suit of any nature arising out of the assistance and instruction provided to the caller or bystander, except in cases of gross negligence or willful misconduct.
(d)
1. (1) A caller or bystander may decline to receive T-CPR.
2. (2) When a caller or bystander declines T-CPR, the emergency call taker or public safety dispatcher has no obligation to provide such instruction.
(e) The emergency communication district, state, county, and municipality are not liable for any civil damages or subject to a civil suit of any nature for employees who answer 911 emergency calls and employees who are recently hired, except in cases of gross negligence or willful misconduct.
(f) As used in this section, “T-CPR” means telecommunicator cardiopulmonary resuscitation, which is the dispatcher-assisted delivery of cardiopulmonary resuscitation (CPR) instruction by trained emergency call takers or public safety dispatchers to callers or bystanders for events requiring CPR, such as out-of-hospital cardiac arrest (OHCA).

§ 29-20-109. Immunity of local education agency employees from asbestos-related liability.

Local education agency employees, including board members, superintendents, teachers and non-professional staff members, shall be absolutely immune from liability for acts and omissions within the scope of the employee's office arising from the detection, management or removal of asbestos from buildings and other structures owned or controlled by the local education agency when the local education agency has complied with the United States environmental protection agency regulations relative to asbestos in schools; provided, that such immunity shall not apply if the acts or omissions of the employee were grossly negligent, willful, malicious, criminal or were done for personal gain.

§ 29-20-110. [Obsolete]

§ 29-20-111. No employee liability for attempts to maintain order in judicial proceedings.

Notwithstanding any provision of this chapter or any other law to the contrary, no claim may be brought, or any judgment entered against an employee of local government, who is acting in good faith and within the scope of employment, arising from the employee's negligent act or omission in attempting to control another person's disorderly conduct or violent behavior that delays or disrupts, or threatens to delay or disrupt, a courtroom proceeding or that jeopardizes the safety of a judge, judicial employee, attorney, litigant, witness, or spectator who is present for a judicial proceeding.

§ 29-20-112. Immunity of local board of education and school officials for activities outside of regularly scheduled school activities on premises of public schools.

(a) For purposes of this section:
1. (1) “Premises” means any and all real property, natural or artificial landscape or waterway thereon, building, bathroom, gymnasium, facility, track, playground, tennis or badminton court, horseshoe pit, bleachers, stage, or other improvement erected on the premises for recreational purposes;
2. (2) “Recreational activity” means any activity undertaken for exercise, pleasure, or other recreational purposes including, but not limited to, basketball, football, soccer, baseball, softball, tennis, lacrosse, running, walking, wrestling, cheerleading, taekwondo, karate, community gardening and music lessons; and
3. (3) “Recreational joint use agreement” means a written authorization by a local board of education or a school official permitting a public or private entity to access the premises of a public school for the purpose of conducting or engaging in recreational activity and addressing conditions under which the permission is granted.
(b)
1. (1) Except as provided in subdivision (b)(3), neither a local board of education nor a school official owes a duty of care to keep the premises of a public school safe for entry or use by others outside of regularly scheduled school activities or to give warning of unknown dangerous or hazardous conditions, uses, structures or activities on the premises.
2. (2) Unless otherwise specified in the agreement, if a recreational activity is conducted pursuant to a recreational joint use agreement, the local board of education or school official entering the agreement does not owe a greater duty of care than that which is owed under subdivision (b)(1).
3. (3) Notwithstanding the duty of care or duty to warn owed pursuant to this subsection (b), the immunity conferred upon a local board of education or school official by the recreational joint use agreement shall not apply to a person who is injured or suffers property damage on school property pursuant to such agreement if the injury or damage was proximately caused by the gross negligence, or willful, wanton or malicious conduct of the local board of education or school official.
(c) Where a local board of education or school official enters a recreational joint use agreement, with respect to persons accessing the premises for recreational activity pursuant to that agreement, neither the local board of education nor a school official shall be construed to have:
1. (1) Waived any immunity under this chapter;
2. (2) Extended immunity under this chapter to another entity;
3. (3) Extended any assurance to any person or entity accessing the premises that the premises are safe for any other purpose than that which is agreed upon;
4. (4) Conferred upon a person the legal status of a person to whom a duty of care is owed;
5. (5) Assumed responsibility for or incurred liability for any injury to a person or property caused by a force of nature or by an act or omission of a person who enters upon the premises;
6. (6) Guaranteed unlimited access to the premises; or
7. (7) Limited an obligation or duty of a person or entity accessing the premises to exercise due care in the use of the premises and any activity conducted thereon.
(d) When entering into a recreational joint use agreement under rules, regulations, and conditions prescribed by the local board of education pursuant to § 49-2-203(b)(4), the general assembly encourages local boards of education and school officials to require, in the agreement, that the other entity maintain and provide proof of adequate liability and accident insurance coverage as determined by insurance industry standards, and to address, in the agreement, issues including, but not limited to, security, adult supervision of recreational activity, prohibited activity, hours of operation, use of equipment, maintenance, and damage to the premises. Any such joint use agreement entered into shall contain notice of the immunity provided by this section.
(e) This section shall apply to contracts entered or renewed on or after July 1, 2011.

§ 29-20-113. Award of attorneys’ fees and costs to state and local government employees sued in individual capacity.

1. (a) Notwithstanding § 20-12-119(c)(5)(A), if a claim is filed with a Tennessee or federal court, the Tennessee claims commission, board of claims, or any other judicial body established by the state or by a governmental entity of the state, against an employee of the state or of a governmental entity of the state in the person's individual capacity, and the claim arises from actions or omissions of the employee acting in an official capacity or under color of law, and that employee prevails in the proceeding as provided in this section, then the court or other judicial body on motion shall award reasonable attorneys' fees and costs incurred by the employee in defending the claim filed against the employee.
2. (b) For purposes of this section, the employee shall be the prevailing party if:
  1. (1) The employee successfully defends the claim alleging individual liability; or
  2. (2) The claim of individual liability is dismissed with or without prejudice after forty-five (45) days have elapsed after an answer or other responsive pleading is filed in which the employee asserts the employee was not acting within the employee's individual capacity at the time of the matters stated in the complaint.
3. (c) The inclusion of an additional claim against the employee in official capacity in the same proceeding shall not preclude the employee from obtaining the remedies provided in this section that are related to the claim against the employee in individual capacity.
4. (d) Attorneys' fees and costs shall be paid to the state, or a governmental entity of the state, if either the state or the governmental entity represents, or retains and agrees to pay for counsel to represent, the employee sued in an individual capacity. If the state has not made such agreement, the attorneys' fees and costs shall be paid to the employee, or to counsel representing the employee. Attorneys' fees shall be calculated at a reasonable rate paid to attorneys of similar experience in private practice in the county where the proceeding is initiated.

Part 2 Removal of Immunity

§ 29-20-201. General rule of immunity from suit — Exception.

(a) Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.
(b)
1. (1) The general assembly finds and declares that the services of governmental entity boards, commissions, authorities and other governing agencies are critical to the efficient conduct and management of the public affairs of the citizens of this state. Complete and absolute immunity is required for the free exercise and discharge of the duties of such boards, commissions, authorities and other governing agencies. Members of boards, commissions, authorities, and other governing agencies must be permitted to operate without concern for the possibility of litigation arising from the faithful discharge of their duties.
2. (2) All members of boards, commissions, agencies, authorities, and other governing bodies of any governmental entity, created by public or private act, whether compensated or not, shall be immune from suit arising from the conduct of the affairs of such board, commission, agency, authority, or other governing body. Such immunity from suit shall be removed when such conduct amounts to willful, wanton, or gross negligence.
(c) When immunity is removed by this chapter any claim for damages must be brought in strict compliance with the terms of this chapter.
(d) Notwithstanding this chapter or any other law to the contrary, a governmental entity that places and properly maintains a clearly visible and adequate flood warning sign or barricade at a flooded road area shall be immune from suit for any injury resulting from a violation of § 55-10-205(c). The immunity from suit shall be removed when the governmental entity's conduct amounts to willful, wanton, or gross negligence. It shall be deemed gross negligence if an authorized government employee signaled the motor vehicle operator that it was safe to drive past the sign or barricade and the operator or any passengers in the operator's motor vehicle were injured or killed in the flooded road area due to the employee's signaling the motor vehicle to drive past the sign or barricade.

§ 29-20-202. Removal of immunity for injury from negligent operation of motor vehicles — Exceptions.

(a) Immunity from suit of all governmental entities is removed for injuries resulting from the negligent operation by any employee of a motor vehicle or other equipment while in the scope of employment.
(b) This section shall not act as a repeal of § 55-8-101, § 55-8-108, or § 55-8-132, and the immunities provided by these sections are hereby expressly continued.

§ 29-20-203. Removal of immunity for injury from unsafe streets and highways — Notice required — Limitation of action for action related to trolley or light rail system.

(a) Immunity from suit of a governmental entity is removed for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity. “Street” or “highway” includes traffic control devices thereon.
(b) This section shall not apply unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice required by § 29-20-302 [repealed].
(c) Notwithstanding any law to the contrary, all actions, arbitrations, or other binding dispute resolution proceedings to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of a trolley or light rail system, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, must be brought against any governmental entity that owns, operates, or controls the trolley or light rail system within four (4) years after substantial completion of an improvement.

§ 29-20-204. Removal of immunity for injury from dangerous structures — Exception — Notice required.

(a) Immunity from suit of a governmental entity is removed for any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement owned and controlled by such governmental entity.
(b) Immunity is not removed for latent defective conditions, nor shall this section apply unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice required by § 29-20-302 [repealed].

§ 29-20-205. Removal of immunity for injury caused by negligent act or omission of employees — Exceptions — Immunity for year 2000 computer calculation errors.

Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of:
1. (1) The exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;
2. (2) False imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights;
3. (3) The issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization;
4. (4) A failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property;
5. (5) The institution or prosecution of any judicial or administrative proceeding, even if malicious or without probable cause;
6. (6) Misrepresentation by an employee whether or not such is negligent or intentional;
7. (7) Or results from riots, unlawful assemblies, public demonstrations, mob violence and civil disturbances;
8. (8) Or in connection with the assessment, levy or collection of taxes;
9. (9) Or in connection with any failure occurring before January 1, 2005, which is caused directly or indirectly by the failure of computer software or any device containing a computer processor to accurately or properly recognize, calculate, display, sort, or otherwise process dates or times, if, and only if, the failure or malfunction causing the loss was unforeseeable or if the failure or malfunction causing the loss was foreseeable but a reasonable plan or design or both for identifying and preventing the failure or malfunction was adopted and reasonably implemented complying with generally accepted computer and information system design standards. Notwithstanding any other law, nothing in this subdivision (9) shall in any way limit the liability of a third party, direct or indirect, who is negligent. Further, a person who is injured by the negligence of a third party contractor, direct or indirect, shall have a cause of action against the contractor; or
10. (10) Or in connection with any loss, damage, injury, or death arising from COVID-19, as defined in § 14-1-101, unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was proximately caused by an act or omission by the entity or its employees constituting gross negligence. The requirements of title 14, chapter 5 apply to any such cause of action when applicable.

3 Backlinks

§ 29-20-206. Construction of chapter as to liability — Effect of removal of immunity.

Nothing contained in this chapter, unless specifically provided, shall be construed as an admission or denial of liability or responsibility insofar as governmental entities are concerned. Wherein immunity from suit is removed by this chapter, consent to be sued is granted and liability of the governmental entity shall be determined as if the governmental entity were a private person.

§ 29-20-207. Liability for injury arising out of the provision of emergency services.

Except as may otherwise be provided in the agreement, when any governmental entity is found liable under this part for any injury arising out of the provision of emergency services rendered under a written mutual aid agreement, automatic response agreement, operational agreement, or any other agreement specifically entered into between or among the parties, relating to the providing of emergency services under §§ 5-1-113, 5-16-107, 6-54-601, the Interlocal Cooperation Act, compiled in title 12, chapter 9, or other applicable law, the governmental entity benefiting from the provision of the services under the agreement may pay any judgment or award against the provider, subject to the limits of liability set forth in § 29-20-403.

§ 29-20-208. Governmental immunity waived for claims against any governmental entity under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Immunity from suit of any governmental entity, or any agency, authority, board, branch, commission, division, entity, subdivision, or department of state government, or any autonomous state agency, authority, board, commission, council, department, office, or institution of higher education, is removed for the purpose of claims against and relief from a governmental entity under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301 – 4334.

§ 29-20-209. Removal of immunity from suit by party adversely affected by local regulation of firearms.

Immunity from suit of all governmental entities is removed for causes of action brought under § 39-17-1314(g)-(i).

§ 29-20-210. Liability of governmental entity for damages, injury, or death proximately caused by governmental entity intentionally prohibiting or preventing law enforcement or fire and rescue services from accessing specifically bounded area within governmental entity's jurisdiction during public demonstration.

(a) A governmental entity shall not intentionally prohibit or prevent law enforcement or fire and rescue services from accessing a specifically bounded area within the governmental entity's jurisdiction during a public demonstration unless the services are replaced by like services provided by another governmental entity.
(b) A governmental entity violating subsection (a) may be held liable, subject to the limits set forth in this chapter, for damages, injury, or death proximately caused by the governmental entity intentionally prohibiting or preventing law enforcement or fire and rescue services from accessing a specifically bounded area within the governmental entity's jurisdiction during a public demonstration.
(c) As used in this section, “governmental entity” means a mayor, chief executive officer, governing body, board, commission, committee, or department of a municipality, county, or other political subdivision of the state.
(d) This section does not apply to tactical decisions made by law enforcement or fire and rescue services personnel based on the risks to or safety of personnel or the public.

Part 3 Claims Procedure

§ 29-20-301, 29-20-302. [Reserved.]

§ 29-20-303. [Repealed]

§ 29-20-304. Approval or denial of claim — Period for answering claim, action or suit.

(a) A governmental entity or employee shall have sixty (60) days in which to answer or otherwise respond to any claim, action, or suit brought pursuant to this chapter.
(b) A claim shall be deemed to have been denied if at the end of the sixty-day period the governmental entity or its insurance carrier has failed to approve or deny the claim.

§ 29-20-305. Action in circuit court generally — General sessions court in certain counties.

(a) If the claim is denied, a claimant may institute an action in the circuit court against the governmental entity in those circumstances where immunity from suit has been removed as provided for in this chapter; provided, that in counties having a population of more than eight hundred fifty thousand (850,000), according to the 2000 federal census or any subsequent federal census, an action under this section may also be instituted in the general sessions court.
(b) The action must be commenced within twelve (12) months after the cause of action arises.

§ 29-20-306. Bond for costs or pauper's oath.

At the time of filing the action the plaintiff shall file a bond for costs or pauper's oath required by chapter 18 of this title.

§ 29-20-307. Exclusive jurisdiction — No jury.

The circuit courts shall have exclusive original jurisdiction over any action brought under this chapter and shall hear and decide such suits without the intervention of a jury, except as otherwise provided in § 29-20-313(b); provided, that in counties having a population of more than eight hundred fifty thousand (850,000), according to the 2000 federal census or any subsequent federal census, the general sessions court shall have concurrent original jurisdiction with such circuit court over any action brought under this chapter; and provided further, that the jurisdiction conferred upon the general sessions court by this section shall not extend beyond the jurisdictional dollar limit provided in § 16-15-501(d) for such general sessions courts in civil cases generally.

§ 29-20-308. Venue of actions.

(a) Suits filed under this chapter may be brought in the county in which such governmental entity is located or in the county in which the incident occurred from which the cause of action arises.
(b) A governmental entity operating in more than one (1) county shall be deemed to be located in the county where its principal office is found.

§ 29-20-309. Settlement of actions.

(a) An officer or body appointed by the governing body of any governmental entity may, subject to such regulations and procedures as may be prescribed by the governing body, compromise and settle any action for damages or relief sought hereunder.
(b) If no such appointment has been made, the chief administrative officer of such governmental entity shall be deemed to have been appointed and to have such power.

1 Backlink

29-20-401(b)(2)

§ 29-20-310. Determinations to be made by court — Restrictions on claims against employees — Health care liability — Immunity indemnification and insurability of local government employees.

(a) The court, before holding a governmental entity liable for damages, must first determine that the employee's or employees' act or acts were negligent and the proximate cause of plaintiff's injury, that the employee or employees acted within the scope of their employment and that none of the exceptions listed in § 29-20-205 are applicable to the facts before the court.
(b) No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for health care liability brought against a health care practitioner. No claim for health care liability may be brought against a health care practitioner or judgment entered against a health care practitioner for damages for which the governmental entity is liable under this chapter, unless the amount of damages sought or judgment entered exceeds the minimum limits set out in § 29-20-403 or the amount of insurance coverage actually carried by the governmental entity, whichever is greater, and the governmental entity is also made a party defendant to the action. As used in this subsection (b), “health care practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed under title 63, chapter 7.
(c) No claim may be brought against an employee or judgment entered against an employee for injury proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune in any amount in excess of the amounts established for governmental entities in § 29-20-403, unless the act or omission was willful, malicious, criminal, or performed for personal financial gain, or unless the act or omission was one of health care liability committed by a health care practitioner and the claim is brought against such health care practitioner. As used in this subsection (c), “health care practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed under title 63, chapter 7.
(d) Local governmental entities shall have the right, as a matter of local option, to elect to insure or to indemnify their employees for claims for which the governmental entity is immune under this chapter arising under state or federal law upon such terms and conditions as the local government may deem appropriate; provided, that such indemnification may not exceed the limits of liability established for governmental entities in § 29-20-403 except in causes of action in which the liability of governmental employees is not limited as provided in this chapter.
(e)
1. (1) As used in this subsection (e), “volunteer” means a person who donates or volunteers that person's time or services to a local governmental entity when the donation of such time or services is at the request of the local governmental entity and under the direction of a local governmental employee.
2. (2) A local governmental entity may elect to insure or indemnify its volunteers for claims arising under state or federal law for which the governmental entity is immune under this chapter. Such insurance or indemnification shall be upon such terms and conditions as the local governmental entity establishes. However, no such indemnification may exceed the limits of liability established for governmental entities in § 29-20-403. The volunteer shall be liable for any amount in excess of such limits of governmental liability established in § 29-20-403.
3. (3) Nothing in this subsection (e) may be construed to affect the status of regular members of a voluntary or auxiliary firefighting, police or emergency assistance organization as employees of a governmental entity as provided in § 29-20-107(d), nor to impair any immunity granted to these personnel because of that status.
(f)
1. (1) No claim may be brought against an employee or judgment entered against an employee for any loss, damage, injury, or death arising from COVID-19, as defined in § 14-1-101, and proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune, unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was caused by an act or omission that was willful, malicious, criminal, or performed for personal financial gain.
2. (2)
  1. (A) In any claim alleging loss, damage, injury, or death arising from COVID-19 under this subsection (f), the claimant must file a verified complaint pleading specific facts with particularity from which a finder of fact could reasonably conclude that the alleged loss, damage, injury, or death was caused by the defendant's willful, malicious, or criminal act or omission, or performed for personal financial gain.
  2. (B) In any claim alleging loss, damage, injury, or death based on exposure to or contraction of COVID-19 under this subsection (f), the claimant must also file with the verified complaint a certificate of good faith stating that the claimant or claimant's counsel has consulted with a physician duly licensed to practice in the state or a contiguous bordering state, and the physician has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19 and, upon information and belief, believes that the alleged loss, damage, injury, or death was caused by an act or omission of the defendant or defendants.
3. (3) The failure of a claimant to satisfy the requirements of subdivisions (f)(1) and (2), if required by subdivision (f)(2), shall, upon motion, make the action subject to dismissal with prejudice.
4. (4) [Deleted by 2023 amendment.]

§ 29-20-311. Judgment over limits of insurance policy prohibited.

No judgment or award rendered against a governmental entity may exceed the minimum amounts of insurance coverage for death, bodily injury and property damage liability specified in § 29-20-403, unless such governmental entity has secured insurance coverage in excess of such minimum requirements, in which event the judgment or award may not exceed the applicable limits provided in the insurance policy.

1 Backlink

29-20-403(b)(1)(A)

§ 29-20-312. Payment of claims.

(a) Any claim approved for payment by a governmental entity or any final judgment obtained against a governmental entity shall be paid from funds appropriated or reserved for that purpose or in the discretion of the governmental entity may be paid in not more than ten (10) equal annual instalments commencing the next fiscal year or in such other manner as is agreed upon by the claimant and governmental entity.
(b) Installment payments shall bear interest at six percent (6%) per annum on the unpaid balance.
(c) This section shall be discretionary with the court of original jurisdiction and such court is hereby authorized in its discretion to order a lump sum payment of any final judgment.
(d) All judgments below five thousand dollars ($5,000) must be paid in one (1) installment and must be paid as other tort judgments.

§ 29-20-313. Claim of immunity by employee — Multiple defendants.

(a) When one (1) or more defendants to a lawsuit claim to be employees of a governmental entity as defined by § 29-20-107 and are therefore entitled to the governmental immunity granted by this chapter, it shall be a question of fact whether the defendant or defendants claiming immunity are such employees. If the trier of fact determines that the defendant claiming immunity is not a governmental entity employee, the lawsuit as to that defendant shall proceed like any other civil case. If the trier of fact determines that the defendant claiming immunity is a governmental entity employee, the lawsuit as to that defendant shall proceed in accordance with this chapter.
(b) When suit is brought in circuit court in a case in which there are multiple defendants, one (1) or more of which are a governmental entity or entities or governmental entity employee or employees whose liability or lack thereof is to be determined based upon this chapter and one (1) or more of which are not such governmental entity or entities or governmental entity employee or employees, the case shall be heard and decided by a jury upon the demand of any party. Nothing in this section shall be construed to abridge the right of any party to a trial by jury otherwise granted by the state or federal constitution or any statute.
1 Backlink
- 29-20-307

Part 4 Funding and Insurance

§ 29-20-401. Creation of reserve or special fund — Pooling agreements with other governmental entities — Election to self-insurer.

(a) Any governmental entity may create and maintain a reserve or special fund for the purpose of making payment of claims against it payable pursuant to this chapter or for the purpose of purchasing liability insurance to protect it from any and all risks created by this chapter.
(b)
1. (1) Any two (2) or more governmental entities are hereby granted the power, any provision of law to the contrary notwithstanding, to enter into an agreement or agreements with one another for joint or cooperative action to pool their financial and administrative resources for the purpose of providing to the participating governmental entities risk management, insurance, reinsurance, which is defined to mean reinsurance by an entity created under this section, self-insurance, or any combination thereof for any and all of the areas of liability or insurability, or both, for such governmental entities, including, but not limited to, the liabilities created by this chapter (including general and professional liabilities), liabilities under the workers' compensation law, liabilities under the unemployment compensation law, and motor vehicle insurance. All such agreements shall be made pursuant to title 12, chapter 9.
2. (2) The power to enter into agreements hereunder specifically includes the power to establish a separate legal or administrative entity or entities to effectuate such agreements or, if no separate legal or administrative entity or entities are established, to designate an administrator of the pooled financial and administrative resources. An entity so established, or an administrator so designated, shall be deemed to have been appointed by the governing body of the governmental entity for the purposes of § 29-20-309, and this appointment shall not be considered as a violation of the provision of § 12-9-104(a) dealing with the powers, privileges or authority of officers of political subdivisions.
  3 Backlinks
3. (3) Each such agreement shall be approved by appropriate resolution or as otherwise permitted by the laws of the participating governmental entities before any such agreement shall be effective or binding.
4. (4) In addition to those items included in any such agreement pursuant to § 12-9-104(c), the agreement may specify: the nature and scope of insurance coverage and coverages to be provided; the method and methods by which coverage and coverages are to be extended, contributions (which term shall include all premiums or assessments) levied and paid, claims administered and defended against; the procedures by which financial reserves shall be established and maintained; and, any other provisions necessary for proper administration of the pooled resources.
5. (5) Such agreements may provide for the pooling of losses and any other expenses so that any or all of the funds contributed by a participating governmental entity may be used to pay claims against or with respect to any of the other participating governmental entities and any costs or expenses, or both, relative to any entity authorized by this part. The general assembly hereby finds and determines that all contributions of financial and administrative resources made pursuant to an agreement as authorized herein are made for a public and governmental purpose and that all such contributions benefit the contributing governmental entity.
(c)
1. (1) Any governmental entity choosing to create and maintain a special fund, or to enter into an agreement, as authorized in this section for the purpose of insuring against the liabilities created by this chapter, shall be deemed to be electing to self-insure against the liabilities established in this chapter and shall, therefore, have the same limits of liability as if the minimum limits of liability established in § 29-20-403 had been purchased.
2. (2) Should any governmental entity choose to enter into an agreement for the purpose of insuring for the liabilities of the Workers' Compensation Law, as authorized in this section, it shall be deemed to have accepted the Workers' Compensation Law pursuant to § 50-6-106(5), and it shall be deemed to have insured for such liabilities with an association, organization or corporation authorized to transact the business of workers' compensation insurance pursuant to § 50-6-405(a)(1). Certificates of compliance issued by the legal or administrative entity created by the agreement between the governmental entities for this purpose shall be accepted by the department of labor and workforce development.
  1 Backlink
  - 50-6-703
(d)
1. (1) No special fund established by an agreement authorized under this section and under title 12, chapter 9, shall be considered as an “insurance company” nor shall any contribution of financial or administrative resources to such a special fund be considered a “premium” or “gross premium” under title 56 for any purpose, including regulation and taxation.
2. (2) There shall be maintained in any special fund created pursuant to this section such an amount of reserve funds as is deemed adequate by the department in accordance with reserve standards applicable to private insurance companies pursuant to title 56. The department of commerce and insurance is authorized to charge reasonable fees to cover expenses incurred in the course of investigations and audits conducted for the purpose of making this determination, and is authorized to promulgate such rules and regulations necessary to accomplish the purposes of this subsection (d).
1 Backlink
- 50-6-703
(e) Any special fund or legal or administrative entity created pursuant to this part shall have the power to reinsure, in whole or in part, any of the areas of liability or insurability of governmental entities or governmental employees. Notwithstanding any other law to the contrary, this power to reinsure may be exercised through the creation, operation, or ownership, in whole or in part, of reinsuring entities, or by entering into contracts or treaties of reinsurance with reinsuring entities, or by any combination thereof; provided, that the reinsuring entity is lawfully created under the laws of its jurisdiction. Any reinsuring entity created pursuant to this part may be created only by governmental entities as defined in this chapter or by an entity created by governmental entities pursuant to this part and the Interlocal Cooperation Act, compiled in title 12, chapter 9. Any such reinsuring entity may reinsure only any areas of liability or insurability of governmental entities or governmental employees.
1 Backlink
- 50-6-703
(f)
1. (1) Any legal or administrative entity created by an agreement between governmental entities to pool their resources to provide workers' compensation coverage is entitled to participate in the subsequent injury and vocational recovery fund established in § 50-6-208 upon the payment to the department of labor and workforce development of an annual fee. The annual fee shall be a percentage of the total financial contributions for workers' compensation coverage received from participating governmental entities and earned during a calendar year. The percentage shall equal the percentage of insurance company premiums, as measured by the premium tax, allocated and paid out by the subsequent injury and vocational recovery fund pursuant to § 50-6-208(b) and (c), during the same year, subject to a maximum of two percent (2%).
2. (2) If any such legal or administrative entity participates in the subsequent injury and vocational recovery fund as provided herein and then ceases participation, either the subsequent injury and vocational recovery fund shall remain liable for a claim for injuries to an employee insured by the entity that occurred prior to the termination of participation and for which benefits had not been paid prior to the termination; provided, that the legal or administrative entity shall promptly reimburse the subsequent injury and vocational recovery fund for the actual amount of any such benefits subsequently paid by the subsequent injury and vocational recovery fund; or, within thirty (30) days of the cessation of such participation, the legal and administrative entity may elect to assume complete liability for such a claim. This assumption shall release the subsequent injury and vocational recovery fund from any duty to defend or liability, but in either case, the recovery by any employee shall not be reduced or defeated.
(g)
1. (1) An insurance pool, special fund, reserve fund, or legal or administrative entity administering any such pool or fund created and authorized under this section must be audited annually by the comptroller of the treasury or the comptroller's designee. The commissioner of commerce and insurance shall assist the comptroller in the audit upon the written request by the comptroller.
2. (2) The comptroller of the treasury is authorized to charge reasonable fees to cover expenses incurred by the comptroller or the commissioner of commerce and insurance in the course of audits or investigations pursuant to this section.
3. (3) Any information obtained by or disclosed to the commissioner of commerce and insurance pursuant to an examination, audit or investigation conducted under this chapter shall be confidential and shall not be disclosed to the public. Any information obtained by or disclosed to the comptroller shall be considered working papers of the comptroller and, therefore, are confidential. Furthermore, the commissioner of commerce and insurance shall not disclose any information relating to the reserving of particular claims, if disclosure would likely prejudice the fund in settling the claim; provided, however, that this shall not apply to any examination report, audit or investigative report prepared by the commissioner of commerce and insurance or the comptroller, or to any rebuttal to such reports submitted by or on behalf of the fund examined. However, nothing contained in this subdivision (g)(3) shall be construed as prohibiting the commissioner of commerce and insurance or the comptroller from disclosing the information listed in this subdivision (g)(3), or any matters relating to that information, to state agencies of this or any other state, or to law enforcement officials of this or any other state or agency of the federal government at any time.
4. (4) Any person knowingly or willfully testifying falsely in reference to any matter material to the investigation, audit, examination or inquiry commits a Class A misdemeanor.
5. (5) Any director, trustee, officer, agent, or employee of an insurance pool or reserve fund, or any other person who knowingly or willfully makes any false certificate, entry, or memorandum upon any of the books or papers of any insurance pool or reserve fund upon any statement filed or offered to be filed in the department or used in the course of any examination, inquiry or investigation with the intent to deceive the commissioner of commerce and insurance or any person appointed by the commissioner or the comptroller to make the examination, commits a Class A misdemeanor.

8 Backlinks

§ 29-20-402. Authority to levy tax.

Notwithstanding law or charter to the contrary, all governmental entities having the power to tax shall have authority to levy an annual property tax in the amount necessary to pay all claims, settlements, or judgments secured pursuant to the provisions hereof, or to pay the costs to defend against same, or for the purpose of establishing and maintaining a reserve or special fund as the same may be established pursuant to § 29-20-401 for the payment of such claims, settlements, or judgment as may be reasonably anticipated, or to pay the premium for such insurance as herein authorized, including insurance provided for in § 29-20-406, even though as a result of such levy the maximum levy as otherwise restricted by law is exceeded thereby; provided, that in no event shall the revenues derived therefrom be used for any other purpose than those stipulated herein.

1 Backlink

29-20-406(a)

§ 29-20-403. Liability insurance authorized — Compensation for injury — Limits — Limits of liability for self-insuring entities.

(a) Any governmental entity may purchase insurance to cover its liability under this chapter.
(b) Every policy or contract of insurance purchased by a governmental entity as authorized by this chapter shall provide:
1. (1)
  1. (A) Minimum limits of not less than forty thousand dollars ($40,000) for bodily injury or death of any one (1) person in any one (1) accident and not less than eighty thousand dollars ($80,000) for bodily injury or death of any two (2) or more persons in any one (1) accident; provided, that in cases arising out of the ownership, maintenance, and use of automobiles, the minimum limit shall be not less than one hundred thousand dollars ($100,000) because of bodily injury or death of one (1) person in any one (1) accident, and to a limit of not less than three hundred thousand dollars ($300,000) because of bodily injury or death of two (2) or more persons in any one (1) accident, and to a limit of not less than fifty thousand dollars ($50,000) for injury to or destruction of property of others in any one (1) accident. In the event the governmental entity is unable to purchase insurance to cover its obligations hereunder, except through an assigned risk pool, then for purposes of § 29-20-311 the limits of liability shall be twenty thousand dollars ($20,000) for injury to any one (1) person resulting from one (1) accident and forty thousand dollars ($40,000) for all injuries resulting from one (1) accident with a limit of ten thousand dollars ($10,000) for property damages resulting from any one (1) accident. If insurance is not purchased through an assigned risk pool then the greater limits above apply; and
  2. (B) Subdivision (b)(1)(A) applies only to actions arising before July 1, 1987; and
2. (2)
  1. (A) Minimum limits of not less than one hundred thirty thousand dollars ($130,000) for bodily injury or death of any one (1) person in any one (1) accident, occurrence or act and not less than three hundred fifty thousand dollars ($350,000) for bodily injury or death of all persons in any one (1) accident, occurrence or act, and in cases arising out of the ownership, maintenance and use of automobiles to a limit of not less than fifty thousand dollars ($50,000) for injury to or destruction of property of others in any one (1) accident, occurrence or act. This subdivision (b)(2)(A) applies to any action arising on or after July 1, 1987, but before July 1, 2002; and
  2. (B) Minimum limits of not less than fifty thousand dollars ($50,000), except as provided otherwise in this section, for injury to or destruction of property of others in any one (1) accident;
3. (3) Minimum limits of not less than two hundred fifty thousand dollars ($250,000) for bodily injury or death of any one (1) person in any one (1) accident, occurrence or act, and not less than six hundred thousand dollars ($600,000) for bodily injury or death of all persons in any one (1) accident, occurrence or act, and eighty-five thousand dollars ($85,000) for injury or destruction of property of others in any one (1) accident, occurrence or act. This subdivision (b)(3) shall apply to any action arising on or after July 1, 2002, but before July 1, 2007;
4. (4) Minimum limits of not less than three hundred thousand dollars ($300,000) for bodily injury or death of any one (1) person in any one (1) accident, occurrence or act, and not less than seven hundred thousand dollars ($700,000) for bodily injury or death of all persons in any one (1) accident, occurrence or act, and one hundred thousand dollars ($100,000) for injury or destruction of property of others in any one (1) accident, occurrence or act. This subdivision (b)(4) shall apply to any action arising on or after July 1, 2007;
(c) Any governmental entity electing to self-insure its liability shall have the same limits of liability as if insurance had been purchased.

10 Backlinks

§ 29-20-404. Waiver of immunity or liability limits — Liabilities arising under federal law.

(a) A governmental entity or the insurer of such governmental entity shall not be held liable for any claim arising under state law for which the governmental entity has immunity under this chapter unless the governmental entity has expressly waived such immunity. A governmental entity or the insurer of such governmental entity shall not be held liable for any judgment in excess of the limits of liability set forth in § 29-20-403, unless the governmental entity has expressly waived such limits. The waiver of such immunity or such limits of liability by a governmental entity shall only be valid if such waiver is expressly contained in the provisions or endorsement of a policy or contract of insurance authorized by this chapter to cover its liability under this chapter.
(b) This chapter shall not be construed to prohibit or limit a governmental entity from purchasing a policy or contract of insurance in such amounts of coverage as it deems proper for liabilities which may arise under federal law. If a governmental entity has such policy or contract of insurance for liabilities which may arise under federal law, such policy or contract of insurance shall not be construed or deemed a waiver of any immunity provided in this chapter or of the limits of liability set forth in § 29-20-403, for any claims arising under state law.

§ 29-20-405. Construction of liability insurance policy not in compliance with law.

Any insurance policy, rider or endorsement purchased to insure against any risk which may arise as a result of the application of this chapter, and which contains any condition or provisions not in compliance with the terms of this chapter, shall not be rendered invalid, but shall be construed and applied in accordance with the intention of this chapter.

§ 29-20-406. Liability insurance for employees and sheriffs authorized.

(a) A governmental entity may insure any or all of its employees against all or any part of their liability for injury or damage resulting from a negligent act or omission, and any expenditure for such insurance is herewith declared to be for a public purpose, and may be paid from funds derived from the tax levy authorized in § 29-20-402.
(b) Any sheriff or group of sheriffs is authorized to purchase insurance or enter into agreements to insure such sheriff and any or all of the sheriff's employees against all or any part of their personal liability for injury or damages arising as a result of the act or omission of any such sheriff or employee. This authority to purchase insurance or enter into agreements to insure includes specifically the authority to establish a separate legal or administrative entity to effectuate any such agreements or, if a separate legal or administrative entity is not established, to designate an entity to effectuate the purposes of this subsection (b). Any such purchase or any such agreement which would involve the expenditure of county funds must first be approved by the county legislative body.

1 Backlink

29-20-402

§ 29-20-407. Authorization for purchase of insurance without bidding.

Any governmental entity may purchase any of the insurance authorized by this chapter, without the necessity of public bidding, as required by any public or private act or charter restriction, if such insurance is purchased through a plan authorized and approved by any organization of governmental entities representing cities and counties.

§ 29-20-408. Catastrophic injuries fund commission created.

(a) There is created a commission to design, develop and propose legislation to the general assembly to enact and implement a catastrophic injuries fund for the purpose of compensating certain specified persons in an amount in excess of the governmental tort liability limits for injuries or death caused by the actions of an employee of a governmental entity and to study other issues relating to governmental tort liability. Such commission shall consist of the following members:
1. (1) Four (4) members to be appointed jointly by the speaker of the senate and speaker of the house of representatives from a list of eight (8) persons to be submitted jointly by the Tennessee municipal league, the Tennessee county services association, the Tennessee school board association, county-owned hospitals, self-insured municipalities, Tennessee public utilities and the Tennessee municipal league risk management pool by January 1, 2002;
2. (2) Four (4) members to be appointed jointly by the speaker of the senate and speaker of the house of representatives from a list of eight (8) persons submitted by the Tennessee trial lawyers association by January 1, 2002;
3. (3) The comptroller of the treasury or the comptroller's designee;
4. (4) The state treasurer or the treasurer's designee;
5. (5) The secretary of state or the secretary's designee; and
6. (6) The chairs of the judiciary, state and local government and finance, ways and means committees of the senate and the civil justice, state government, and finance, ways and means committees of the house of representatives, or such chairs' designees, who shall be ex officio non-voting members of the commission.
(b) If the speakers are unable to appoint four (4) members from the list of eight (8) submitted pursuant to subsection (a)(1) or (a)(2), the speakers shall notify the association or entities submitting the initial list and they shall have no more than forty-five (45) days to submit a new list of eight (8) persons. The speakers may request no more than two (2) such additional lists in making the respective four (4) member appointments.
(c) If for any reason a vacancy occurs in the commission membership appointed pursuant to subdivision (a)(1) or (a)(2), the association or entities making the original appointment shall have no more than thirty (30) days to submit to the speakers a list of two (2) persons to fill each such vacancy. The speakers shall jointly appoint a member to fill the vacancy in the same manner as the initial appointment.
(d) The commission shall first convene at the call of the state treasurer who shall serve as chair and shall coordinate the work of the commission.
(e) The catastrophic injuries fund commission shall design, develop and propose legislation to the general assembly to enact and implement the catastrophic injuries fund by July 1, 2006. The commission may report on and propose legislation, if necessary, on other issues related to governmental tort liability at any time, but no later than July 1, 2006.

Chapter 21 Habeas Corpus

§ 29-21-101. Grounds for writ.

(a) Any person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases specified in subsection (b) and in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.
(b) Persons restrained of their liberty pursuant to a guilty plea and negotiated sentence are not entitled to the benefits of this writ on any claim that:
1. (1) The petitioner received concurrent sentencing where there was a statutory requirement for consecutive sentencing;
2. (2) The petitioner's sentence included a release eligibility percentage where the petitioner was not entitled to any early release; or
3. (3) The petitioner's sentence included a lower release eligibility percentage than the petitioner was entitled to under statutory requirements.

§ 29-21-102. Federal prisoners.

Persons committed or detained by virtue of process issued by a court of the United States, or a judge thereof, in cases where such judges or courts have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suits in such courts, are not entitled to the benefits of this writ.

1 Backlink

29-21-101(a)

§ 29-21-103. Judges authorized to grant writ.

The writ may be granted by any judge of the circuit or criminal courts, or by any chancellor in cases of equitable cognizance.

§ 29-21-104. Issuance of writ without application.

Whenever any court or judge, authorized to grant this writ, has evidence, from a judicial proceeding, that any person within the jurisdiction of such court or officer is illegally imprisoned or restrained of liberty, it is the duty of such court or judge to issue, or cause to be issued, the writ as aforementioned, although no application be made therefor.

§ 29-21-105. Place of application for writ.

The application should be made to the court or judge most convenient in point of distance to the applicant, unless a sufficient reason be given in the petition for not applying to such court or judge.

1 Backlink

29-21-106(d)

§ 29-21-106. Habeas corpus proceedings in municipal courts, corporation courts and courts of general session jurisdiction.

(a) The judges of the municipal courts or corporation courts and/or the judges of the courts of general sessions of the state of Tennessee are hereby vested with the jurisdiction to grant the writ of habeas corpus in all cases wherein any person is being unreasonably held or detained by any municipal official or authority without a warrant of arrest having been issued prior to such detention and against whom no formal charges have been made or placed and who has not been taken before a committing magistrate.
(b) The petition for such writ of habeas corpus shall be sworn to and shall recite generally that the petitioner is presently being detained without charges; that the petitioner is being held by municipal authorities and/or officials; that petitioner was arrested without a warrant and has not been docketed or charged with any offenses and has not been brought before a committing magistrate.
(c) It is the expressed intention of the general assembly to confer on the municipal or corporation courts and general sessions courts of this state, and the judges thereof, the jurisdiction to inquire into the detention of any person being held by municipal authorities and/or officials wherein no warrant for arrest has been issued or any formal charges have been made.
(d) No application for habeas corpus made under this section shall be required to be brought pursuant to § 29-21-105, it being the legislative intent that habeas corpus petitions pursuant to this section shall not be required to be brought before the general sessions or municipal courts but that such petitions may be permitted to be brought before such courts.

§ 29-21-107. Petition — Affidavit.

(a) Application for the writ shall be made by petition, signed either by the party for whose benefit it is intended, or some person on the pertitioner's behalf, and verified by affidavit.
(b) The petition shall state:
1. (1) That the person in whose behalf the writ is sought, is illegally restrained of liberty, and the person by whom and place where restrained, mentioning the name of such person, if known, and, if unknown, describing the person with as much particularity as practicable;
2. (2) The cause or pretense of such restraint according to the best information of the applicant, and if it be by virtue of any legal process, a copy thereof shall be annexed, or a satisfactory reason given for its absence;
3. (3) That the legality of the restraint has not already been adjudged upon a prior proceeding of the same character, to the best of the applicant's knowledge and belief; and
4. (4) That it is first application for the writ, or, if a previous application has been made, a copy of the petition and proceedings thereon shall be produced, or satisfactory reasons be given for the failure so to do.

§ 29-21-108. Duty of court — Wrongful failure to grant writ.

(a) It is the duty of the court or judge to act upon such applications instanter.
(b) A wrongful and willful refusal to grant the writ, when properly applied for, is a misdemeanor in office, besides subjecting the judge to damages at the suit of the party aggrieved.

§ 29-21-109. Refusal of writ.

If, from the showing of the petitioner, the plaintiff would not be entitled to any relief, the writ may be refused, the reasons for such refusal being briefly endorsed upon the petition, or appended thereto.

§ 29-21-110. Issuance of writ — Form — Formal defects.

(a) If the petition show a sufficient ground for relief, the writ shall be forthwith allowed, and may be substantially as follows:
1. State of Tennessee, To the sheriff, etc. [or to A B, as the case may be]:
2. County
3. You are hereby commanded to have the body of C B, who is alleged to be unlawfully detained by you, before the court, [or before me, or before E E, Judge, etc., as the case may be], at , on [or immediately after being served with this writ], to be dealt with according to law, and have you then and there this writ, with a return thereon of your doings in the premises.
4. This day of , 20 . G H, Judge, etc.
(b) The writ of habeas corpus shall not be disobeyed for any defect of form, or misdescription of the plaintiff or defendant, provided enough is stated to show the meaning and intent of the writ.
(c) When the writ is allowed by a court in term, it is issued by the clerk, but in other cases the judge or chancellor issues the writ, signing it officially.

§ 29-21-111. Person by whom writ served.

(a) The writ may be served by the sheriff, coroner, or constable, or any other person appointed for that purpose by the court or judge by whom it is issued or allowed.
(b) If served by any other person than the sheriff, that person possesses the same power, and is liable to the same penalty for nonperformance the duty performed by that person, as though the person were the sheriff.

§ 29-21-112. Mode of service — Persons served.

(a) The proper mode of service is by leaving a copy of the original writ with the defendant, and making the return upon the original.
(b) Any person served with the writ is presumed to be the person for whom it is intended, although it may be directed to the person by a wrong name or description, or to another person.
(c) If the defendant cannot be found, or, if the defendant have not the plaintiff in custody, the service may be made upon any person having the plaintiff in custody, in the same manner and with the same effect as though that person had been made a defendant therein.

1 Backlink

29-21-115(a)

§ 29-21-113. Arrest of defendant.

If the defendant refuses admittance to the person attempting to serve the writ, hides, or attempts wrongfully to carry the plaintiff out of the county or state, the defendant may be arrested by the person having the writ, and brought, together with the plaintiff, immediately before the officer or court before whom the writ is returnable. In order to make such arrest, the sheriff, or other person having the writ, has the same power as is given to a sheriff for the arrest of a person charged with a felony.

1 Backlink

29-21-114

§ 29-21-114. Taking plaintiff into custody.

If the person in whose name the application is made can be found, and no one appears to have the charge or custody of the plaintiff, the person having the writ may take the plaintiff into custody, and make return accordingly, and, to get possession of the plaintiff's person in such case, the person possesses the same power as is given by § 29-21-113 for the arrest of the defendant.

1 Backlink

29-21-115(a)

§ 29-21-115. Precept.

(a) The court or judge to whom the application for the writ is made, if satisfied that the plaintiff is likely to suffer irreparable injury before the plaintiff could be relieved by the proceedings as authorized in §§ 29-21-112 — 29-21-114, may issue a precept to the sheriff, or other person selected, commanding the sheriff or other person to bring the plaintiff forthwith before such judge or court.
(b) When the evidence is further sufficient to justify the arrest of the defendant, for a criminal offense committed in connection with the illegal detention of the plaintiff, the precept shall also contain an order for the arrest of the defendant.
(c) The officer or person to whom the precept is directed shall execute the same by bringing the defendant, and also the plaintiff, if required, before the court or judge issuing it, and thereupon the defendant shall make return to the writ of habeas corpus in the same manner as if the ordinary course had been pursued. The defendant may also be examined and committed, bailed or discharged, according to the nature of the case.

§ 29-21-116. Defendant's appearance and return — Answer.

(a) Service being made in any of the modes provided for in this part, the defendant shall appear at the proper time, and make due return of the writ, and answer the petition, if required.
(b) The person served with the writ shall state in the return, plainly and unequivocally:
1. (1) Whether the person then has, or at any time has had, the plantiff in the person's control or restraint, and, if so, the authority and cause thereof, setting out the same fully;
2. (2) If the party is detained under a writ, warrant, or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibited to the court or judge, if required; and
3. (3) If the person on whom the writ has been served, has had the plaintiff in the person's custody or power or under the person's restraint, at any time before or after the date of the writ, but has transferred the plaintiff to another person, that person shall state the facts explicitly, and to whom, at what time, for what cause, and by what authority such transfer was made.
(c) The return shall be signed by the person making it, and verified by the oath; unless the person is a sworn public officer, and makes the return in an official capacity.

§ 29-21-117. Production of plaintiff by defendant.

(a) At the time of making the return, the person on whom the same has been served shall also produce the body of the person detained according to the command of the writ, or show good cause for not doing so.
(b) If the cause shown for not producing such person be sickness or infirmity, the fact shall be verified by affidavit, and other evidence if required.
(c) The court may thereupon proceed as if the party were produced, or adjourn to the place where such party then is, or to some other time and place, according to circumstances.

§ 29-21-118. Waiver of plaintiff's right to be present.

The plaintiff, in writing, or the plaintiff's attorney, may waive the right to be present at the examination, in which case the proceedings may be had in the plaintiff's absence.

§ 29-21-119. Proceedings after defendant's return.

The plaintiff may demur or reply to the return, and all issues shall be tried by the court or judge in a summary way, the examination being adjourned from time to time, if necessary to the proper administration of justice, and all such orders being made for the custody of the plaintiff, in the meantime, as the nature of the case requires.

§ 29-21-120. Adjustment of bail.

The plaintiff may also, in any case, be committed, let to bail, or the plantiff's bail diminished or increased, as justice may require.

§ 29-21-121. Subpoena of witnesses.

(a) Subpoena for witnesses in all proceedings under this chapter may be issued by the court or judge granting the writ, or before whom the same is returnable, or by any general sessions judge.
(b) Witnesses thus summoned are subject to the same penalties and entitled to the same privileges and fees as other witnesses.
(c) Upon failure of the witness to attend, the fact shall be noted by the officer before whom the subpoena is returned, on the back thereof, and transmitted to the clerk of the circuit court of the county, who shall issue scire facias, as in other cases.

§ 29-21-122. Discharge of plaintiff or remand to custody.

(a) If no sufficient legal cause of detention is shown, the plaintiff shall be discharged.
(b) The party detained shall be remanded to custody:
1. (1) If it appears the party is detained by virtue of process issued by a court or judge of the United States, in a case where such court or judge has exclusive jurisdiction;
2. (2) Where the time during which such party may be legally detained has not expired; or
3. (3) In every case in which the detention is authorized by law.

§ 29-21-123. Effect of irregular commitment.

Although the commitment of the person detained may have been irregular, still, if the court or judge is satisfied, from the examination, that the person ought to be held to bail, or committed, either for the offense charged, or any other, the order shall be made accordingly.

§ 29-21-124. Filing of records — Costs.

The proceedings under a writ of habeas corpus, including all the papers in the cause, and the final order, shall be returned by the judge to the nearest court served by that judge, to be filed there by the clerk, as other records, a brief memorandum thereof, duly indexed, being made upon the judgment or execution docket, and such clerk taxing the costs and issuing execution therefor, as in other cases.

§ 29-21-125. Costs — General rule.

The costs of proceedings under this chapter, except when otherwise expressly provided, shall be adjudged as the court or judge may think right, and taxed and collected as in other cases.

§ 29-21-126. Costs on discharge of criminal defendant.

(a) Where the defendant in a criminal prosecution is brought before any circuit or criminal judge on a writ of habeas corpus, and discharged by the judge, the costs shall be paid as in other state cases, when the defendant is tried and acquitted by a jury.
(b)
1. (1) When the defendant in the cases provided for in this section is charged with a felony, the judge shall make out and certify the bill of costs, and deliver the same to the clerk of the circuit court before which the defendant is bound to appear, by whom the costs shall be collected and paid out as in other cases.
2. (2) If the defendant is charged with a misdemeanor, the judge shall deliver the bill of costs, made out and certified as before, to the court of general sessions of the county in which the defendant was charged with committing the offense, by whom the same shall be allowed as in other cases.

§ 29-21-127. Appeal.

(a) Any party, either relator or defendant, in any habeas corpus case shall have the right of appeal to the proper appellate court from any judgment or decree rendered against such party by an inferior court.
(b) The party so appealing shall give bond and security for the costs of such appeal except where the relator or defendant is under confinement and serving a prison sentence on final judgment.
(c) This section shall not apply to parties held in custody in criminal cases.

§ 29-21-128. Disobedience of writ or order.

Disobedience of the original writ, or any subsequent order thereon, subjects the defendant to commitment for contempt, and also to a forfeiture of one thousand dollars ($1,000) to the party aggrieved, besides rendering the defendant liable for all damages sustained in consequence of such disobedience.

§ 29-21-129. Evasion of service.

The attempt to elude the service of the writ of habeas corpus, or to avoid the effect thereof by transferring the plaintiff out of the jurisdiction or to another person, or by concealing the plaintiff, or the place of the plaintiff's confinement, is a Class C misdemeanor.

§ 29-21-130. Refusal of officer to deliver copy of process.

Any officer refusing to deliver a copy of any legal process by which the officer retains a party in custody to a person who demands such copy, and tenders the fees therefor, forfeits two hundred dollars ($200) to the person so detained.

Chapter 22 Hospitals' Liens

§ 29-22-101. Lien created — Application — Priority.

(a) Every person, firm, association, corporation, institution, or any governmental unit, including the state of Tennessee, any county or municipalities operating and maintaining a hospital in this state, shall have a lien for all reasonable and necessary charges for hospital care, treatment and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims or demands accruing to the person to whom such care, treatment or maintenance was furnished, or accruing to the legal representatives of such person in the case of such person's death, on account of illness or injuries giving rise to such causes of action or claims and which necessitated such hospital care, treatment and maintenance.
(b) The hospital lien, however, shall not apply to any amount in excess of one third (⅓) of the damages obtained or recovered by such person by judgment, settlement or compromise rendered or entered into by such person or such person's legal representative by virtue of the cause of action accruing thereto.
(c) The lien herein created shall be subject and subordinate to any attorney's lien whether by contract, suit or judgment upon such claim or cause of action and shall not be applicable to accidents or injuries within the purview of the Tennessee Workers' Compensation Law, compiled in title 50, chapter 6. Any such lien arising out of a motor vehicle accident shall not take priority over a mechanic's lien or prior recorded lien upon a motor vehicle involved in such accident.

§ 29-22-102. Perfecting lien — Filing and notice — Contesting — Effect of settlement or payment.

(a) In order to perfect such lien, the agent or operator of the hospital, before or within one hundred twenty (120) days after any such person shall have been discharged therefrom, shall file in the office of the clerk of the circuit court of the county in which the hospital is located, and in the county wherein the patient resides, if a resident of this state, a verified statement in writing setting forth the name and address of the patient as it appears on the records of the hospital, and the name and address of the operator thereof, the dates of admission and discharge of the patient therefrom, the amount claimed to be due for such hospital care, and to the best of the claimant's knowledge, the names and addresses of persons, firms or corporations claimed by such ill or injured person or by such person's legal representative, to be liable for damages arising from such illness or injuries.
(b) A copy of the claim shall, within ten (10) days from the filing thereof be sent by registered mail, postage prepaid, to each person, firm or corporation so claimed to be liable on account of such illness or injuries, at the address given in the statement, and to the attorney, or attorneys, representing the person to whom services were rendered by the hospital if such attorney, or attorneys, are known to the claimant or could, with reasonable diligence, be known to the claimant.
(c) The filing of the claim shall be notice thereof to all persons, firms or corporations who may be liable on account of such illness or injuries, whether or not they are named in the claim or lien and whether or not a copy of the claim shall have been received by them.
(d) Any person desiring to contest such a lien or the reasonableness of the charges thereof may do so by filing a motion to quash or reduce the same in the circuit court of the county in which the lien was perfected, making all other parties in interest respondents thereto. Any such motion may be heard in term time or vacation and at such time and place as may be fixed by order of the court.
(e)
1. (1) If at the time an insurance carrier or other person, corporation or entity reaches a settlement and obtains a release of liability on or pays a claim filed by a policyholder or other person against such carrier, person, corporation or other entity, the hospital providing treatment to such policyholder or person has not perfected a lien as set out in this section, any lien perfected subsequent to such settlement or payment shall not apply to or create any additional liability on the part of the insurance carrier or other person, corporation or entity paying the settlement or claim.
2. (2) This subsection (e) shall not apply until thirty (30) days after any such person is discharged from the hospital.

§ 29-22-103. Duties of circuit court clerk — Hospital lien book — Fee.

(a) The clerk of the circuit court shall endorse on such claim the date and hour of filing and at the expense of the county shall provide a hospital lien book with proper index in which the clerk shall enter the date and hour of such filing, the name and address of the hospital, the operator thereof and of such patient, the amount claimed and the names and addresses of those claimed to be liable for damages.
(b) The clerk shall be paid the sum of ten dollars ($10.00) as the fee for filing the claim.

§ 29-22-104. Impairment of lien — Damages.

(a) No release or satisfaction or any action, suit, claim, counterclaim, demand, judgment, settlement or settlement agreement, or any of them, shall be valid or effectual as against such lien unless the lienholder shall join therein or execute a release of the lien.
(b)
1. (1) Any acceptance of a release or satisfaction of any such cause of action, suit, claim, counterclaim, demand or judgment and any settlement of any of the foregoing in the absence of a release or satisfaction of the lien referred to in this chapter shall prima facie constitute an impairment of such lien, and the lienholder shall be entitled to an action at law for damages on account of such impairment, and in such action may recover from the one accepting such release or satisfaction or making such settlement the reasonable cost of such hospital care, treatment and maintenance.
2. (2) Satisfaction of any judgment rendered in favor of the lienholder in any such action shall operate as a satisfaction of the lien.
3. (3) Any action by the lienholder shall be brought in the court having jurisdiction of the amount of the lienholder's claim and may be brought and maintained in the county of residence of the lienholder.

§ 29-22-105. Release of lien — Fee.

(a) To release a perfected lien as described under this chapter, the operator of the hospital to whom the lien has been duly paid shall execute a certificate to the effect that the claim filed by such hospital for treatment, care and maintenance therein has been duly paid or discharged and authorizing the clerk in whose office the notice of hospital lien has been filed, to release the same, such release to be at the expense of the hospital.
(b) The clerk shall thereupon enter upon the margin of the hospital lien book in which the lien has been entered, a memorandum of such filing and the date when such certificate of payment or discharge was filed in the clerk's office, which certificate and entry shall constitute a release of lien, for which the clerk shall receive the sum of two dollars ($2.00).

§ 29-22-106. Lienholder not to be named on checks or drafts.

No person, firm, or corporation, paying a claim, demand, or judgment shall include the name of any lien claimant, under this chapter, as a payee on any drafts or checks issued to settle such claims, demands, or judgments.

§ 29-22-107. Limitations on hospital.

This chapter shall not be construed as giving any hospital an independent right of action to determine liability for injuries sustained by any person covered herein nor shall any settlement or compromise of a claim entered into on behalf of such person require the approval of the hospital.

Chapter 23 Injunctions

Part 1 Injunction to Stay Proceedings on Money Judgment

§ 29-23-101. Decree on dissolution of injunction to stay proceedings on money judgment.

Upon the dissolution of an injunction to stay proceedings on a judgment for money, in whole or in part, the decree, interlocutory or final, shall be entered against the complainant and the complainant's sureties for such amount as the court may order, and the clerk and master shall issue executions thereon.

§ 29-23-102. [Reserved.]

§ 29-23-103. Penalty for delay of judgment.

Where an injunction to stay proceedings on a judgment is dissolved on a final hearing, the court may decree six percent (6%) on the amount of the judgment enjoined as damages, if of the opinion that the injunction was obtained for delay.

§ 29-23-104. Assessment of penalty for injurious injunction.

(a) In cases where the court is of the opinion that the party enjoined has suffered a substantial injury, but that damages are speculative or incapable of ascertainment under legal rules, it may, on dissolution, in its sound discretion, assess and decree against the party suing out the writ a penalty in favor of the party enjoined.
(b) If this discretion is exercised by the chancellor it shall be reviewable on appeal.

§ 29-23-105. Delivery of attached property — Payment of penalty.

The court has power, upon final decree, to order the property which may have been attached to be delivered to the party entitled, and, in case of failure, that the persons liable upon original, replevy, or delivery bonds, shall pay all or such portion of the penalty as the court may order. Or, where the property is not forthcoming in conformity to the final decree, the court may enter judgment on motion, and execution may issue thereon for the whole, or any portion, of the penalty, as the court may direct, against all or any of the parties thereto.

Part 2 Injunction Against Sale Under Trust Deed or Mortgage

§ 29-23-201. Injunction against sale under trust deed or mortgage — Notice required.

(a) No judge or chancellor shall grant an injunction to stay the sale of real estate conveyed by deed of trust or mortgage, with a power of sale, executed to secure the payment of a loan of money, unless the complainant gives five (5) days' notice to the trustee or mortgagee of the time when, place where, and of the judge or chancellor before whom, the application for injunction is to be made.
(b) No judge or chancellor shall act upon the application unless the same is accompanied by proof, evidenced by return of a sheriff, constable, or attorney, that notice has been served on the trustee or mortgagee, or that the trustee or mortgagee is not to be found in the county of usual residence, or is a nonresident.

§ 29-23-202. Contents of application for injunction.

The party applying for relief in such case shall distinctly state how, when, and to whom the debt or any part of the debt secured aforementioned has been paid, or any circumstances of fraud which vitiate the contract.

§ 29-23-203. Answer — Delay in hearing on injunction.

After the reading of the bill in the hearing of the trustee or mortgagee, if the trustee or mortgagee chooses to appear before the judge or chancellor, the trustee or mortgagee may have the right to a delay of proceedings not more than ten (10) days, during which time the trustee or mortgagee may file an answer before the same judge or chancellor.

§ 29-23-204. Decree.

The judge or chancellor may then, upon such bill and answer, hear such cause, at chambers, as upon motion to dissolve the injunction, the judge's or chancellor's decision to be in a written decree, which decree, together with the bill, answer, and exhibits, shall be enclosed in a sealed envelope, to the clerk of the court in which the bill is filed, such decree to constitute a part of the record in the cause, in conformity to the terms of which, the clerk may take bonds from either party, or execute any other order as adjudged in such decree.

Chapter 24 Libel and Slander

§ 29-24-101. Charge of adultery or fornication.

Any words written, spoken, or printed of a person, wrongfully and maliciously imputing to such person the commission of adultery or fornication, are actionable, without special damage except as otherwise provided in § 29-24-105.

§ 29-24-102. Costs on nominal recovery.

Where the verdict in slander is under five dollars ($5.00), the plaintiff shall recover no more costs than damages.

§ 29-24-103. Notice of action against periodical — Effect of retraction.

(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.
(b)
1. (1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within ten (10) days after the service of such notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.
2. (2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

§ 29-24-104. Broadcasting stations.

(a) The owner, licensee, or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee, or operator, or agent or employee thereof, unless it shall be alleged by the complaining party that such owner, licensee, operator, or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.
(b) It shall be the responsibility of the owner, licensee or operator to show that due care was used.
(c) In no event, however, shall any owner, licensee, or operator, or the agents or employees of any such owner, licensee or operator of any such a station or network of stations, be held liable for any damages for any defamatory statement uttered over the facilities of such station or network by any candidate for public office, unless such statement is made by an agent or employee of the owner, licensee, or operator in the course of employment.

§ 29-24-105. Commercial printers and printing establishments relieved of liability for libel under certain conditions.

(a) For the purpose of this section, “commercial printer or commercial printing establishment” includes any person or establishment producing printed products by any and all processes, and suppliers of type, stencils, plates and/or negatives from which such printing is produced.
(b) The right of action heretofore existing against a commercial printer or commercial printing establishment engaged in the business of printing for others to recover sums of money as damages for the publication of a libel is hereby abolished where the copy for the libelous matter was furnished by the customer to the commercial printer or commercial printing establishment, and no part of the libelous matter was written, edited or otherwise authored by the commercial printer or commercial printing establishment or their agents, servants or employees.
(c)
1. (1) The benefits of this section shall not inure to the commercial printer or printing establishment, where the copy is libelous per se or where the commercial printer, or commercial printing establishment, its agents, servants or employees knew, or in the exercise of ordinary care should have known, of the falsity of the matter contained in such copy.
2. (2) The benefit of this section shall not inure to the benefit of any commercial printer or any commercial printing establishment unless such printer or printing establishment requires the person furnishing such copy to place the provider's true name, address and organization represented, if any, on such copy or in a permanent record book kept for such purpose, such information to be available to the person allegedly libeled upon the libeled party's written request.

1 Backlink

29-24-101

Chapter 25 Mandamus

§ 29-25-101. Power to issue writ.

Circuit judges and chancellors have power to issue writs of mandamus, upon petition or bill, supported by affidavit.

§ 29-25-102. Alternative and peremptory writs.

(a) The writ is either alternative or peremptory.
(b) The alternative writ commands the defendant to do the act required to be performed or show cause before the court forthwith, or at a specified time and place, why the defendant has not done so, and that the defendant then and there return the writ.
(c) The peremptory writ commands the defendant to do the act and return the writ accordingly.

§ 29-25-103. Court to which writ returnable.

The writ is returnable to the court of the county in which the land lies, in all cases where land is the subject of controversy, and in all other cases to the court of the county where the defendant resides, or, if against a public officer or corporation, in the county in which the office is kept or corporation does business.

§ 29-25-104. Notice to and intervention by third person.

The defendant in the writ shall notify any third person claiming title to or interest in the matter in controversy, and such third person may, upon application, be made a defendant, and permitted to file an answer, upon giving security for costs.

§ 29-25-105. Failure of third person to appear.

If such third person is a nonresident or unknown, publication shall be made as in other cases against nonresidents; and, on the nonresident's failing to appear and answer according to the requirements of the order of publication, the petition or bill may be taken for confessed, and proceeded with ex parte.

§ 29-25-106. Filing of answer.

On the return day of the alternative writ, or on such further day as the court may allow, the party on whom the writ has been served may show cause by a sworn answer, and issue may be made thereon, and tried accordingly.

§ 29-25-107. Issues of fact.

If the answer deny any material facts stated in the petition, the court may determine the issues upon evidence, or cause them to be submitted to a jury.

§ 29-25-108. Judgment.

(a) When the defendant makes default, or a decision is made against the defendant after appearance, the court shall direct a peremptory mandamus to issue forthwith.
(b) Should the decision be adverse to the petitioner, the petition or bill shall be dismissed with costs.

§ 29-25-109. Costs.

The costs and fees in mandamus cases are the same as those prescribed by law for similar services in chancery proceedings.

Chapter 26 Health Care Liability

Part 1 General Provisions

§ 29-26-101. Part definitions.

(a) As used in this part, unless the context otherwise requires:
1. (1) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based;
2. (2) “Health care provider” means:
  1. (A) A health care practitioner licensed, authorized, certified, registered, or regulated under any chapter of title 63 or title 68, including, but not limited to, medical resident physicians, interns, and fellows participating in a training program of one of the accredited medical schools or of one of such medical school's affiliated teaching hospitals in Tennessee;
  2. (B) A nongovernmental health care facility licensed under title 68, chapter 11;
  3. (C) A nongovernmental health facility licensed under the Mental Health, Developmental Disability, and Personal Support Services Licensure Law, compiled in title 33, chapter 2, part 4;
  4. (D) The employee of a health care provider involved in the provision of health care services, including, but not limited to, physicians, nurses, licensed practical nurses, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, certified nursing assistants, technicians and those physicians and nurses employed by a governmental health facility; or
  5. (E) A professional corporation or professional limited liability company established pursuant to title 48, a registered limited liability partnership rendering professional services under title 61 and which consists of one (1) or more health care practitioners licensed, authorized, certified, registered, or regulated under any chapter of title 63 or title 68, or any legal entity that is not itself required to be licensed but which employs one or more health care practitioners licensed, authorized, certified, registered, or regulated under any chapter of title 63 or title 68;
3. (3) “Licensee” means a health care provider licensed, authorized, certified, registered, or regulated under title 33, 63, or 68 that is legally responsible for all health care services provided;
4. (4) “Management company” means an individual or entity that contracts with, or receives a fee from, a licensee to provide any of the following services to or for a licensee:
  1. (A) Directly hiring or firing the administrator or other managing employees of the licensee;
  2. (B) Directly controlling or having control over the staffing levels at the licensee;
  3. (C) Directly controlling the budget and expenditures of the licensee; or
  4. (D) Directly implementing and enforcing the policies and procedures of the licensee; and
5. (5) “Passive investor” means an individual or entity that has an ownership interest in a licensee but does not directly participate in the day-to-day decision making or operations of the licensee.
(b) Health care services to persons includes care by health care providers, which includes care by physicians, nurses, licensed practical nurses, pharmacists, pharmacy interns or pharmacy technicians under the supervision of a pharmacist, orderlies, certified nursing assistants, advance practice nurses, physician assistants, nursing technicians and other agents, employees and representatives of the provider, and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.
(c) Any such civil action or claim is subject to this part regardless of any other claims, causes of action, or theories of liability alleged in the complaint; provided, that no provision of this part shall apply to claims against the state to the extent that such provision is inconsistent with or conflicts with the Tennessee Claims Commission Act, compiled in title 9, chapter 8, part 3.

1 Backlink

29-26-121(f)(1)

§ 29-26-102. Permissible defendants in health care liability action — Determining statute of limitations.

(a) Except as provided in this section, a health care liability action against a licensee may be brought only against the licensee, the licensee's management company, the licensee's managing employees, or an individual caregiver who provided direct health care services, whether an employee or independent contractor. A passive investor shall not be liable under this part. A health care liability action against any other individual or entity may be brought only pursuant to subsection (b).
(b) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee's management company, the licensee's managing employees, or an individual caregiver who provided direct health care services, whether an employee or independent contractor, unless, after a hearing on a motion for leave to amend, the court or arbitrator determines that there is sufficient evidence in the record or proffered by the claimant to establish a reasonable showing that:
1. (1) The individual or entity owed a duty of reasonable care to the claimant and that the individual or entity breached that duty; and
2. (2) The breach of that duty is a legal cause of loss, injury, death, or damage to the claimant.
(c) When determining the statute of limitations in a health care liability action, the date of the original pleading shall control regardless of whether there are amended pleadings or substituted or added parties.

§ 29-26-103. Use of results of survey, inspection or investigation of health care provider conducted by state or federal department or agency.

(a) Except as otherwise provided in this section, the results of a survey, an inspection, or an investigation of a health care provider that is conducted by any state or federal department or agency, including any statement of deficiencies and all findings and deficiencies cited in the statement of deficiencies on the basis of the survey, inspection, or investigation, all proposed or implemented plans of correction submitted by the health care provider, and statements of or records of interviews with employees or independent contractors of the health care provider, shall not be:
1. (1) Admissible in evidence in any health care liability action in any court or arbitration proceeding on the basis that it satisfies an exception to the Tennessee rules of evidence governing hearsay; or
2. (2) Used in an advertisement, unless the advertisement includes all of the following:
  1. (A) The date the survey, inspection, or investigation was conducted;
  2. (B) If a finding or deficiency cited in the statement of deficiencies has been corrected, a statement that the finding or deficiency has been corrected and the date the finding or deficiency was corrected; and
  3. (C) A statement that the advertisement is neither authorized nor endorsed by the department of health, department of mental health and substance abuse services, or any other government agency.
(b) Nothing in this section prohibits the results of a survey, an inspection, or investigation being used in an administrative proceeding, a state civil or criminal proceeding, or a federal civil or criminal proceeding initiated by a state or federal department or agency, or an appeal of any such proceeding.
(c) Nothing in this section prohibits the results of a survey, an inspection, or investigation being used to impeach a witness in a health care liability action.

§ 29-26-104 — 29-26-114. [Reserved.]

§ 29-26-115. Claimant's burden in health care liability action — Expert testimony — Presumption of negligence — Jury instructions.

(a) In a health care liability action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
1. (1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
2. (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
3. (3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
1 Backlink
- 63-1-122
(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person's expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection (b) when it determines that the appropriate witnesses otherwise would not be available.
1 Backlink
- 29-26-118
(c) In a health care liability action as described in subsection (a), there shall be no presumption of negligence on the part of the defendant; provided, that there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant's (or defendants') exclusive control and that the accident or injury was one which ordinarily doesn't occur in the absence of negligence.
(d) In a health care liability action as described in subsection (a), the jury shall be instructed that the claimant has the burden of proving, by a preponderance of the evidence, the negligence of the defendant. The jury shall be further instructed that injury alone does not raise a presumption of the defendant's negligence.

12 Backlinks

§ 29-26-116. Statute of limitations — Counterclaim for damages.

(a)
1. (1) The statute of limitations in health care liability actions shall be one (1) year as set forth in § 28-3-104.
2. (2) In the event the alleged injury is not discovered within such one-year period, the period of limitation shall be one (1) year from the date of such discovery.
3. (3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.
4. (4) The time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient's body, in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.
(b) In any action for damages for personal injury or death, whether based on tort or contract law, or otherwise, a counterclaim for damages for malicious prosecution (on the ground that the principal action was instituted with improper intent and without probable cause) or malicious abuse of process (on the ground that there was an improper use with improper intent of the process) in filing such action may be filed and litigated in the same action; provided, that the counterclaim shall be based upon substantial allegations.

§ 29-26-117. Plaintiff's demand for specific sum inadmissible during trial.

In a health care liability action the pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case notwithstanding § 20-9-302 to the contrary.

§ 29-26-118. Proving inadequacy of consent.

In a health care liability action, the plaintiff shall prove by evidence as required by § 29-26-115(b) that the defendant did not supply appropriate information to the patient in obtaining informed consent (to the procedure out of which plaintiff's claim allegedly arose) in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which the defendant practices and in similar communities.

§ 29-26-119. Damages.

In a health care liability action in which liability is admitted or established, the damages awarded may include (in addition to other elements of damages authorized by law) actual economic losses suffered by the claimant by reason of the personal injury, including, but not limited to, cost of reasonable and necessary medical care, rehabilitation services, and custodial care, loss of services and loss of earned income, but only to the extent that such costs are not paid or payable and such losses are not replaced, or indemnified in whole or in part, by insurance provided by an employer either governmental or private, by social security benefits, service benefit programs, unemployment benefits, or any other source except the assets of the claimant or of the members of the claimant's immediate family and insurance purchased in whole or in part, privately and individually.

§ 29-26-120. Attorneys' fees.

Compensation for reasonable attorneys' fees in the event an employment contract exists between the claimant and claimant's attorney on a contingent fee arrangement shall be awarded to the claimant's attorney in a health care liability action in an amount to be determined by the court on the basis of time and effort devoted to the litigation by the claimant's attorney, complexity of the claim and other pertinent matters in connection therewith, not to exceed thirty-three and one third percent (33⅓%) of all damages awarded to the claimant.

§ 29-26-121. Claim for health care liability — Notice — Evidence of compliance — Limitations — Copies of medical records.

(a)
1. (1) Any person, or that person's authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.
2. (2) The notice shall include:
  1. (A) The full name and date of birth of the patient whose treatment is at issue;
  2. (B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
  3. (C) The name and address of the attorney sending the notice, if applicable;
  4. (D) A list of the name and address of all providers being sent a notice; and
  5. (E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.
3. (3) The requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider, one of the following occurs, as established by the specified proof of service, which shall be filed with the complaint:
  1. (A) Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider's patients at the provider's current practice location. Delivery must be established by an affidavit stating that the notice was personally delivered and the identity of the individual to whom the notice was delivered; or
  2. (B) Mailing of the notice:
    1. (i) To an individual health care provider at both the address listed for the provider on the Tennessee department of health web site and the provider's current business address, if different from the address maintained by the Tennessee department of health; provided, that, if the mailings are returned undelivered from both addresses, then, within five (5) business days after receipt of the second undelivered letter, the notice shall be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient; or
    2. (ii) To a health care provider that is a corporation or other business entity at both the address for the agent for service of process, and the provider's current business address, if different from that of the agent for service of process; provided, that, if the mailings are returned undelivered from both addresses, then, within five (5) business days after receipt of the second undelivered letter, the notice shall be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient.
  1 Backlink
  - 14-5-101(d)(3)
4. (4) Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent shall be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective.
5. (5) In the event a person, entity, or health care provider receives notice of a potential claim for health care liability pursuant to this subsection (a), the person, entity, or health care provider shall, within thirty (30) days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of any other person, entity, or health care provider who may be a properly named defendant.
(b) If a complaint is filed in any court alleging a claim for health care liability, the pleadings shall state whether each party has complied with subsection (a) and shall provide the documentation specified in subdivision (a)(2). The court may require additional evidence of compliance to determine if the provisions of this section have been met. The court has discretion to excuse compliance with this section only for extraordinary cause shown.
(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. Personal service is effective on the date of that service. Service by mail is effective on the first day that service by mail is made in compliance with subdivision (a)(2)(B). In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any provider. Once a complaint is filed alleging a claim for health care liability, the notice provisions of this section shall not apply to any person or entity that is made a party to the action thereafter by amendment to the pleadings as a result of a defendant's alleging comparative fault.
(d)
1. (1) All parties in an action covered by this section shall be entitled to obtain complete copies of the claimant's medical records from any other provider receiving notice. A party shall provide a copy of the specified portions of the claimant's medical records as of the date of the receipt of a legally authorized written request for the records within thirty (30) days thereafter. The claimant complies with this requirement by providing the providers with the authorized HIPAA compliant medical authorization required to accompany the notice. The provider may comply with this section by:
  1. (A) Mailing a copy of the requested portions of the records with a statement for the cost of duplication of the records to the individual requesting the records;
  2. (B) Informing the individual requesting the records that the records will be mailed only upon advance payment for the records for the stated cost of the records, calculated as provided in § 63-2-102. Any request for advance payment must be made in writing twenty (20) days after the receipt of the request for medical records. The provider must send the records within three (3) business days after receipt of payment for the records; or
  3. (C) Fulfilling such other method that the provider and the individual requesting the records agree to in writing.
2. (2) The records received by the parties shall be treated as confidential, to be used only by the parties, their counsel, and their consultants.
(e) In the event that a complaint is filed in good faith reliance on the extension of the statute of limitations or repose granted by this section and it is later determined that the claim is not a health care liability claim, the extension of the statute of limitations and repose granted by this section is still available to the plaintiff.
(f)
1. (1) Upon the filing of any “healthcare liability action,” as defined in § 29-26-101, the named defendant or defendants may petition the court for a qualified protective order allowing the defendant or defendants and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating “healthcare providers,” as defined by § 29-26-101. Such petition shall be granted under the following conditions:
  1. (A) The petition must identify the treating healthcare provider or providers for whom the defendant or defendants seek a qualified protective order to conduct an interview;
  2. (B) The claimant may file an objection seeking to limit or prohibit the defendant or defendants or the defendant’s or defendants’ counsel from conducting the interviews, which may be granted only upon good cause shown that a treating healthcare provider does not possess relevant information as defined by the Tennessee Rules of Civil Procedure; and
  3. (C)
    1. (i) The qualified protective order shall expressly limit the dissemination of any protected health information to the litigation pending before the court and require the defendant or defendants who conducted the interview to return to the healthcare provider or destroy any protected health information obtained in the course of any such interview, including all copies, at the end of the litigation;
    2. (ii) The qualified protective order shall expressly provide that participation in any such interview by a treating healthcare provider is voluntary.
2. (2) Any healthcare provider's disclosure of relevant information in response to a court order under this section, including, but not limited to, protected health information, opinions as to the standard of care of any defendant, compliance with or breach of the standard, and causation of the alleged injury, shall be deemed a permissible disclosure under Tennessee law.
3. (3) Nothing in this part shall be construed as restricting in any way the right of a defendant or defendant’s counsel from conducting interviews outside the presence of claimant or claimant’s counsel with the defendant’s own present or former employees, partners, or owners concerning a healthcare liability action.

1 Backlink

29-26-122(a)

§ 29-26-122. Filing of certificate of good faith.

(a) In any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff's counsel shall file a certificate of good faith with the complaint. If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant's records requested as provided in § 29-26-121 or demonstrated extraordinary cause. The certificate of good faith shall state that:
1. (1) The plaintiff or plaintiff's counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:
  1. (A) Are competent under § 29-26-115 to express an opinion or opinions in the case; and
  2. (B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115; or
2. (2) The plaintiff or plaintiff's counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:
  1. (A) Are competent under § 29-26-115 to express an opinion or opinions in the case; and
  2. (B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident or incidents at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident or incidents at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiff's counsel; and that, despite the absence of this information, there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-26-115. Refusal of the defendant to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records shall waive the requirement that the expert review the medical record prior to expert certification.
(b) Within thirty (30) days after a defendant has alleged in an answer or amended answer that a non-party is at fault for the injuries or death of the plaintiff and expert testimony is required to prove fault as required by § 29-26-115, each defendant or defendant's counsel shall file a certificate of good faith stating that:
1. (1) The defendant or defendant's counsel has consulted with one (1) or more experts, which may include the defendant filing the certificate of good faith, who have provided a signed written statement confirming that upon information and belief they:
  1. (A) Are competent under § 29-26-115 to express an opinion or opinions in the case; and
  2. (B) Believe, based on the information reviewed concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to allege such fault against another consistent with the requirements of § 29-26-115; or
2. (2) The defendant or defendant's counsel has consulted with one (1) or more medical experts, which may include the defendant filing the certificate of good faith, who have provided a signed written statement confirming that upon information and belief they:
  1. (A) Are competent under § 29-26-115 to express an opinions or opinions in the case; and
  2. (B) Believe, based on the information reviewed concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the information reasonably available to the defendant or defendant's counsel; and that, despite the absence of this information, there is a good faith basis for alleging such fault against another, whether already a party to the action or not, consistent with the requirements of § 29-26-115.
(c) The failure of a plaintiff to file a certificate of good faith in compliance with this section shall, upon motion, make the action subject to dismissal with prejudice. The failure of a defendant to file a certificate of good faith in compliance with this section alleging the fault of a non-party shall, upon motion, make such allegations subject to being stricken with prejudice unless the plaintiff consents to waive compliance with this section. If the allegations are stricken, no defendant, except for a defendant who complied with this section, can assert, and neither shall the judge nor jury consider, the fault, if any, of those identified by the allegations. The court may, upon motion, grant an extension within which to file a certificate of good faith if the court determines that a health care provider who has medical records relevant to the issues in the case has failed to timely produce medical records upon timely request, or for other good cause shown.
(d)
1. (1) Subject only to subdivision (d)(2), the written statement of an expert relied upon in executing the certificate of good faith is not discoverable in the course of litigation.
2. (2) If a party in a health care liability action subject to this section prevails on the basis of the failure of an opposing party to offer any competent expert testimony as required by § 29-26-115, the court may, upon motion, compel the opposing party or party's counsel to provide to the court a copy of each such expert's signed written statement relied upon in executing the certificate of good faith. The medical experts may be compelled to provide testimony under oath, as determined by the court, for the purposes of determining that party's compliance with subsection (a) or (b).
3. (3) If the court, after hearing, determines that this section has been violated, the court shall award appropriate sanctions against the attorney if the attorney was a signatory to the action and against the party if the party was proceeding pro se. The sanctions may include, but are not limited to, payment of some or all of the attorney's fees and costs incurred by a party in defending or responding to a claim or defense supported by the non-complying certificate of good faith. If the signatory was an attorney, the court shall forward the order to the board of professional responsibility for appropriate action. Upon proof that a party or party's counsel has filed a certificate of good faith in violation of this section in three (3) or more cases in any court of record in this state, the court shall, upon motion, require the party or party's counsel to post a bond in the amount of ten thousand dollars ($10,000) per adverse party in any future health care liability case to secure payment of sanctions for any violation of this section in such case.
4. (4) A certificate of good faith shall disclose the number of prior violations of this section by the executing party.
5. (5) The administrative office of the courts shall develop a certificate of good faith form to effectuate the purposes of this section.

Part 2 Therapist Sexual Misconduct Victims Compensation

§ 29-26-201. Short title.

The title of this part is, and may be cited as, the “Therapist Sexual Misconduct Victims Compensation Act.”

§ 29-26-202. Intent.

It is the intention of the general assembly to provide victims of sexual misconduct by a therapist with a legal remedy, including significant compensatory damages and a more reasonable statute of limitations. It is intended to prevent sexual misconduct by a therapist by imposing significant liability upon any therapist who engages in this type of misconduct. This is necessary due to the inadequacy of the current system of health care liability where the statute of limitations fails to address the specific problems associated with sexual misconduct by a therapist. This part also clarifies the legal landscape and attempts to prevent most instances of sexual misconduct by making employers liable if they refuse to take simple and reasonable steps to avoid endangering their patients.

§ 29-26-203. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Claimant” means any of the following:
  1. (A) The victim;
  2. (B) The parents of the victim where the victim is still a minor;
  3. (C) The legal guardian of the victim if the victim is not competent to assert such victim's legal rights; or
  4. (D) The spouse of the victim where the sexual misconduct occurred while the spouse and the victim were married;
2. (2) “Deception” means the representation that sexual actions are part of or consistent with the patient's treatment by the therapist;
3. (3) “Emotionally dependent” means that the patient's emotional condition is such that the therapist knows or has reason to know that the patient is not competent to give consent to sexual advances due to the relationship which the therapist and patient have developed in the course of treatment by the therapist;
4. (4) “Employer” means any person or entity that employs any therapist for the purpose of providing therapy;
5. (5) “Patient” means a person who has obtained therapy from a therapist. For purposes of this part, “patient” encompasses both current and former patients of a therapist;
6. (6) “Sexual behavior” means sexual activity of the victim other than the sexual act or acts at issue in the case;
7. (7)
  1. (A) “Sexual misconduct” means any of the following, regardless of the consent of the patient:
    1. (i) Any intrusion into an opening of the patient's body by any part of the therapist's body, or an object used by the therapist to effect an intrusion for the purpose of sexual arousal or gratification;
    2. (ii) Any intrusion into an opening of the therapist's body by any part of the patient's body, or an object used by the patient to effect an intrusion for the purpose of sexual arousal or gratification where the therapist has consented to the conduct verbally or by acquiescence;
    3. (iii) Touching of the patient's body by the therapist for the purpose of sexual arousal or gratification; or
    4. (iv) Touching of the therapist's body by the patient for the purpose of sexual arousal or gratification where the therapist has consented to the conduct verbally or by acquiescence;
  2. (B) Sexual misconduct includes attempts by the therapist to engage in the conduct described in subdivisions (7)(A)(i) — (iv), inclusive; and
  3. (C) Conduct which is part of standard medical treatment shall not constitute sexual misconduct if the therapist is legally permitted and qualified to perform such medical treatment;
8. (8) “Therapist” means any person who performs therapy regardless of whether the person is licensed by the state; and
9. (9) “Therapy” means action by a person who represents that the person is and does practice the professional treatment, assessment, or counseling of a mental or emotional disorder, illness, condition or symptom. “Therapy” includes, but is not limited to, marital counseling, substance abuse treatment, and family counseling. Therapy begins the first time the patient seeks the therapist's assistance as a therapist. “Therapy” includes services provided without charge if they otherwise meet the definition.

§ 29-26-204. Elements.

A cause of action for sexual misconduct exists for a claimant where the sexual misconduct occurred:
1. (1) During the time when the patient was receiving therapy from the therapist; or
2. (2) After the patient has stopped receiving therapy from the therapist if the patient is still emotionally dependent upon the therapist or the sexual misconduct was the result of deception; or
3. (3) Both subdivisions (1) and (2).

4 Backlinks

§ 29-26-205. Exceptions.

A therapist does not violate § 29-26-204 if the patient is:
1. (1) The spouse of the therapist and was married to the therapist prior to the establishment of the therapist-patient relationship; or
2. (2) The sexual relationship began prior to the establishment of the therapist-patient relationship.

§ 29-26-206. Employer liability.

(a) An employer of a therapist may be liable under § 29-26-204 if sexual misconduct occurred as provided in § 29-26-204, and either of the following applies:
1. (1) The employer fails to take reasonable action when the employer knows or has reason to know that the therapist has engaged in sexual misconduct with any patient; or
2. (2) The employer fails to make inquiries of a former employer concerning past sexual misconduct of the therapist and the:
  1. (A) Former employer's name and address has been disclosed to the employer;
  2. (B) Therapist was employed by the former employer as a therapist within five (5) years of the date of employment as a therapist for the employer and during the period of prior employment the therapist engaged in sexual misconduct.
(b) An employer or former employer of a therapist may be liable under § 29-26-204 if:
1. (1) Sexual misconduct occurred as provided in § 29-26-204;
2. (2) The employer or former employer receives a written request from another employer or prospective employer concerning sexual misconduct by the therapist;
3. (3) The employer or prospective employer is considering the therapist for a therapist position; and
4. (4) The employer or former employer knows or has reason to know of the sexual misconduct and fails or refuses to disclose to the requesting employer the occurrence of sexual misconduct by the therapist.
(c) An employer or former employer who gives information concerning sexual misconduct by a therapist when presented with a request for such information by a prospective employer of the therapist is absolved from any legal liability due to the therapist's failure to find employment or damage to the therapist's reputation as a result of the information provided, unless the information is false and the reporting employer knew or should have known that the information was false.
(d) Nothing in this section is intended to affect in any way the application of employer liability if such liability rests upon negligence by the employer in supervising the therapist or where the scope of employment would encompass the sexual misconduct.

§ 29-26-207. Evidence of sexual conduct.

In an action for sexual misconduct, the victim's sexual history is not admissible as evidence except to prove that the sexual behavior occurred with the therapist prior to the provision of therapy to the patient by the therapist. During discovery, only evidence of the victim's sexual history which is relevant to a determination of the timing of the sexual relationship between the parties is discoverable.

§ 29-26-208. Statute of limitations.

(a) The statute of limitations in sexual misconduct actions is two (2) years from the date the alleged injury occurred or is discovered, whichever is later. For purposes of this section, discovery of the alleged injury occurs after therapy ends, the victim is no longer emotionally dependent upon the therapist, and the patient knew or should have known that sexual misconduct by a therapist is unprofessional and harmful to the patient.
(b) Except as provided in subsection (c), no such action shall be brought more than three (3) years after the date of the last communication of any kind between the therapist and the patient.
(c) Where the sexual misconduct involves a minor, the statute of limitations shall be one (1) year after the minor's eighteenth birthday, except that where subsection (a) or (b) would provide for a longer time in which to bring a claim, the provision that provides the longest time in which to bring a claim applies.

§ 29-26-209. Damages.

The claimant may recover for damages caused by the sexual misconduct. Such damages include, but are not limited to:
1. (1) Reasonable economic losses caused by the emotional, mental or physical effects of the sexual misconduct, including, but not limited to:
  1. (A) The cost of counseling, hospitalization and any other expenses connected with treating the harm caused by the sexual misconduct;
  2. (B) Any payments made to the therapist for treatment;
  3. (C) The cost of counseling, hospitalization and any other expenses connected with treating the mental disorder, illness, condition, or symptom for which the patient had sought therapy from the therapist; and
  4. (D) Loss of income caused by the sexual misconduct;
2. (2) Pain and suffering caused by the sexual misconduct, including, but not limited to, psychological and emotional anguish;
3. (3) If the victim is dead, the claimant may seek damages for wrongful death where the victim's death is the result of the physical or emotional harm inflicted upon the victim by the sexual misconduct of the therapist; and
4. (4) Punitive damages as otherwise provided by law.

§ 29-26-210. Construction.

This part is declared to be remedial in nature and this part shall be liberally construed to effectuate its purposes.

Chapter 27 Partition

Part 1 Partition Generally

§ 29-27-101. Persons entitled.

Any person having an estate of inheritance, or for life, or for years, in lands, and holding or being in possession thereof, as tenant in common or otherwise, with others, is entitled to partition thereof, or sale for partition, under this chapter.

§ 29-27-102. Effect of encumbrance.

The fact that the premises are subject to an encumbrance by mortgage or otherwise will not affect the right.

§ 29-27-103. Infancy of owners — Distinctness of interests.

Nor will the fact that some of the joint owners are infants, and that it is to their interest that the property should not be partitioned; nor that the several estates and interests of the parties are altogether different and distinct.

§ 29-27-104. Partial partition — Interest of minors.

In these cases the partition shall be made according to the respective rights of the parties, setting apart to such as desire it their shares in severalty, and leaving the shares of others, if desired, in common; and if there are minors, the court may, in its discretion, leave their shares in common, or set them apart to each in severalty, as may appear to be just, upon the proof introduced.

§ 29-27-105. Partition of personalty — Possession pending proceeding.

(a) Any two (2) or more persons owning personal property in common may have partition, or sale for partition, thereof, in accord, substantially, with this chapter in respect of realty.
(b) Where such owners are unable to agree as to possession pending the proceeding, the court may make orders as to possession or leasing thereof.

§ 29-27-106. Jurisdiction of courts.

(a) The county, circuit, or chancery courts have concurrent jurisdiction of partition cases under this chapter, by bill or petition.
(b) Nothing in this chapter shall deprive the chancery court of the jurisdiction rightfully belonging to that court over the subject of partition and sales of realty for the purposes of division.

§ 29-27-107. Venue of actions.

The petition may be filed in the court of the county in which the land, or any part of it lies, or in which the defendant resides. If all the claimants join in the petition, or assent to the partition, it may be filed in any county in the state, whether any of the land lies therein or not.

§ 29-27-108. Contents of petition.

The bill or petition shall set forth, as far as known, the names of the owners, their residences, which of them are infants or married.

§ 29-27-109. Parties.

Every person having such interest, whether in possession or otherwise, shall be made a party.

§ 29-27-110. Uncertainty of interests.

In case any one (1) or more of such parties, or the share or quantity of interest of any of the parties, be unknown to the petitioner, or be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be a contingent remainder, so that such parties cannot be named, the facts shall be set forth in such petition.

§ 29-27-111. Notice of petition.

(a) Notice of the petition, stating the time it is intended to present it, and the court at which it is to be presented, shall be served upon the parties who do not join in the petition, at least five (5) days before its presentation, or given by publication, as provided in subsection (b).
(b) If any of the parties defendant are nonresidents or unknown, or of unknown residence, the court, or its clerk, may order and make publication for them, under this Code in like cases in chancery where personal service of process is dispensed with.

§ 29-27-112. Commencement of action by summons.

The action may, however, be commenced by filing the petition or bill, and issuance and service of copy and summons, or making publication as in chancery cases.

§ 29-27-113. Decree — Reservation of unknown interests.

(a) The court, on appearance or default, shall declare the rights, titles, and interests of the parties in the premises, and give judgment that partition be made between such of them as have any right therein, according to such right.
(b) The court may, in a proper case, where there are unknown parties or unknown shares, give judgment that partition be made, so far as the rights or interests of the parties or shares are known and ascertained, and the residue of the premises shall remain for the parties whose interests have not been ascertained, subject to division at any future time.

§ 29-27-114. Appointment of commissioners.

(a) Upon the filing of a suit for partition of property, real or personal, the parties shall submit the names of three (3) commissioners selected and agreed upon by the parties. If the parties are unable to agree, the judge shall appoint three (3) commissioners, known by the court or shown to the court to be of good personal character and integrity and knowledgeable in the type of property to be partitioned.
(b) If the lands lie in different counties, the court may appoint separate sets of commissioners for each county, or one (1) set for all the lands, as may seem best for the interest of the parties.

1 Backlink

29-27-305

§ 29-27-115. Oath of commissioners.

The commissioners, before proceeding to the execution of their duty, shall be severally sworn, by the clerk, the officer summoning them, the county surveyor, the deputy, or any general sessions judge, to do justice among the parties, to the best of their skill and abilities, according to the directions of the court.

§ 29-27-116. Mode of partition.

In making partition, the commissioners shall divide the premises and allot the several shares to the respective parties, quality and quantity relatively considered, according to the respective rights and interests of the parties as adjudged by the court, designating the several shares by posts, stones, marked trees, or other permanent monuments; and they may employ a surveyor, with the necessary assistants, to aid therein. The partition may be made by tracts, or by the division of each tract into shares, as may seem right to the commissioners and the court.

§ 29-27-117. Unequal partition — Equalizing charges.

If the commissioners are satisfied that exact partition cannot be made without material injury to the parties, or some one of them, they may make the partition as nearly equal as they can, and charge the larger shares with the sums necessary to equalize all the shares, and report the facts.

§ 29-27-118. Report of commissioners.

The commissioners shall make a report in writing, signed by at least three (3) of them, of what they have done, and describing the land divided, and the share of each party, by metes and bounds, or other sufficient designation.

§ 29-27-119. Confirmation of report — Decree.

Upon the coming in of the report, unless set aside for good cause shown, upon exception, the court shall confirm the same, and divest and vest title according to its terms, giving a decree in proper cases in favor of those to whom smaller shares have been allotted against those having the larger shares, for the amounts reported, which decree is a lien on such larger shares until paid. Where there are infants whose shares are thus charged, the court shall direct the money to be paid out of their personal estate, if any.

§ 29-27-120. Commissioners' expenses.

The expenses of the commissioners, including the expenses of a surveyor and the surveyor's assistants, when they have been employed, will be ascertained and allowed by the court; the expenses to be paid by the claimants in the proportion of their interests, or equally, as the court may direct, to be collected as other costs.

§ 29-27-121. Attorneys' fees.

The court may, in its discretion, order the fees of the attorneys for the complainant and defendant to be paid out of the common fund, where the property is sold for partition, and taxed as cost in cases where the property is partitioned in kind.

§ 29-27-122. Persons bound by decree.

The partition thus made is conclusive:
1. (1) On all parties named in the proceedings who have at the time any interest in the premises divided, as owners in fee or as tenants for years or as entitled to the reversion, remainder, or inheritance of such premises after the termination of any particular estate therein; or who by any contingency in any will, conveyance, or otherwise, may be or may become entitled to any beneficial interest in the premises; or who shall have any interest in any individual share of the premises, as tenants for years or for life;
2. (2) On all persons interested in the premises who are unknown, to whom notice has been given by publication, as hereinbefore directed;
3. (3) On all persons claiming from such parties or persons, or either of them.

1 Backlink

29-27-123

§ 29-27-123. Persons not bound by decree.

Such judgment and partition will not affect any tenants or persons having claims as tenants, for life, to the whole of the premises, nor preclude any person, except those specified in § 29-27-122, from claiming any title to the premises, or from controverting the title or interest of the parties between whom the partition has been made.

Part 2 Sale for Division

§ 29-27-201. Sale for division authorized.

Any person entitled to a partition of premises, under part 1 of this chapter, is equally entitled to have such premises sold for division, in the following cases:
1. (1) If the premises are so situated that partition thereof cannot be made; or
2. (2) Where the premises are of such description that it would be manifestly for the advantage of the parties that the same should be sold instead of partitioned.

§ 29-27-202. Application for sale.

The application for a sale of the premises is made by bill or petition, under the same rules and regulations that govern the application for partition.

§ 29-27-203. Alternative application.

The application may be in the alternative for partition, if practicable or advisable, and, if otherwise, for a sale.

§ 29-27-204. Amendment to pray sale.

The petition or bill may also be amended at any stage of the cause, so as to pray a sale, if the parties think it for their interest.

§ 29-27-205. Answer asking sale.

Even if application is for partition only, the court may, upon the answers of the defendants asking a sale, and satisfactory cause shown, decree a sale for division.

§ 29-27-206. Commissioners recommending sale.

If the commissioners appointed to make partition report that the premises, or any portion thereof, are so situated that a partition cannot be made without great prejudice to the owners, the court may, if satisfied that the report is just and correct, order a sale of the premises, whether prayed for or not in the petition, or asked by the defendant.

§ 29-27-207. Decree for sale of estate situated in several counties.

When the estate to be divided is situated in several counties, the court may decree a sale of all the land, as well that situated in the county where the bill is filed as in any other county in the state.

§ 29-27-208. Sale of life estate.

(a) The court may, with the assent of the person entitled to an estate for life, to the whole or any part of the premises, who is a party to the proceedings, sell such estate with the rest.
(b)
1. (1) If such person is incapable of giving assent, the court may determine, under all the circumstances, and taking into view the interest of all the parties, whether such estate ought to be excepted from the sale, or sold.
2. (2) If the person entitled to any such estate for life be unknown, the court may determine whether the estate shall be sold or not, as in the case of persons under disability, and, in the event of sale, make such order for the protection of the rights of such person in the same manner, as far as may be, as if the person were known and had appeared.
(c) When such interest is sold, the value thereof may be ascertained and paid over in gross, or the proper proportion of the fund invested, and the income paid over to the party during the continuance of the estate.

§ 29-27-209. Ascertainment of encumbrances — Payment.

(a)
1. (1) It is the duty of the parties, when a sale is applied for or ordered, to disclose any encumbrance upon the premises, or any part thereof.
2. (2) Either party, or the purchaser after sale, may have a reference to ascertain whether there are any encumbrances on the premises, the costs of which reference will be borne by the person applying, unless an encumbrance is discovered which the party failed to disclose, as required in this section, and then by the party failing to disclose.
(b) If it appears by the report that there are any existing encumbrances upon the estate or interest in the premises of any party named in the proceedings, the court may direct the same to be paid out of the share of the party in the funds, or order a credit to be given the purchaser for the amount of such encumbrance.

1 Backlink

29-27-211

§ 29-27-210. Interpleader of encumbrancer.

If the party dispute the validity of the supposed encumbrance, the purchaser may, by petition, compel such party and the supposed encumbrancer to interplead, unless the parties produce and file a disclaimer or receipt from such supposed encumbrancer.

§ 29-27-211. Unencumbered shares unaffected.

The proceedings to ascertain and settle the amount of encumbrances, as provided in §§ 29-27-209 — 29-27-213, shall not affect any other party in the suit nor delay the paying over or investing of moneys to or for the benefit of any party upon whose estate in the premises there appears to be no encumbrance.

§ 29-27-212. Sale subject to encumbrance.

Sales made without reference to the encumbrances are subject thereto, and do not affect the right of such encumbrancers in any way.

§ 29-27-213. Purchaser's rights under undisclosed encumbrance.

Nothing herein contained shall be held to deprive a purchaser of any rights the purchaser may have to be relieved of a sale, by reason of an encumbrance not made known at the sale.

1 Backlink

29-27-211

§ 29-27-214. Terms of sale.

The court may direct the sale to be made for cash, or on such credit as may be deemed most for the interest of all the parties.

§ 29-27-215. Security for purchase money.

(a) The installments of purchase money shall be secured by note, with good personal security, and a lien retained on the land until the whole amount is paid.
(b) The lien for the purchase money subsists until the whole is paid, notwithstanding any omission to reserve such lien, either in the decree or titles made in compliance with the orders of the court.

§ 29-27-216. Vesting of title in purchaser.

The court, upon confirmation of the sale, divests title and vests it as in other cases of sale of real estate by decree of court, under the provisions of this Code.

§ 29-27-217. Decree.

The rights of the parties shall be settled by the judgment or decree of the court, and the proceeds divided in accordance therewith.

§ 29-27-218. Disposition of proceeds of sale.

(a) The shares of adults not under any disability, in the proceeds of sale made for partition, after deducting the proportion of costs to be borne by such shares, shall be paid over to such parties or their order.
(b) If any of the parties are infants, the court shall direct the disposition of the shares of such parties, and may order that the money be paid over to the general guardian, upon giving bond, with good security, to cover the fund, or laid out in the purchase of other lands for such minors, or otherwise permanently invested.
(c) The court shall, in like manner, direct the disposition of the shares of other parties laboring under the disability of unsoundness of mind, or, upon proper application, order a reinvestment in other property, for the benefit of such parties.
(d) Where any of the parties are absent from the state, are without legal representatives in this state, or are not known or named in the proceedings, the court shall direct the shares of such parties to be invested in permanent securities at interest, for the benefit of such parties, until claimed by them or their legal representatives.

§ 29-27-219. Bond to refund proceeds of sale.

The court may, whenever the nature of the case demands, require all, or any of the parties, before they shall receive any share of the moneys arising from a sale under this chapter, to give approved security, in such sum as the court may direct, to refund such share, with interest thereon, in case it should thereafter appear that such party was not entitled thereto.

Part 3 Uniform Partition of Heirs Property Act

§ 29-27-301. Short title.

This part is known and may be cited as the “Uniform Partition of Heirs Property Act.”

§ 29-27-302. Part definitions.

As used in this part:
1. (1) “Ascendant” means an individual who precedes another individual in lineage, in the direct line of ascent from the other individual;
2. (2) “Collateral” means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual's ascendant or descendant;
3. (3) “Descendant” means an individual who follows another individual in lineage, in the direct line of descent from the other individual;
4. (4) “Determination of value” means a court order determining the fair market value of heirs property under § 29-27-306 or § 29-27-310 or adopting the valuation of the property agreed to by all cotenants;
5. (5) “Heirs property” means real property held in tenancy in common that satisfies all of the following requirements as of the filing of a partition action:
  1. (A) There is no agreement in a record binding all the cotenants that governs the partition of the property;
  2. (B) One (1) or more of the cotenants acquired title from a relative, whether living or deceased; and
  3. (C) Any of the following applies:
    1. (i) Twenty percent (20%) or more of the interests are held by cotenants who are relatives;
    2. (ii) Twenty percent (20%) or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
    3. (iii) Twenty percent (20%) or more of the cotenants are relatives;
6. (6) “Partition by sale” means a court-ordered sale of the entire heirs property, whether by auction, sealed bids, or open-market sale conducted under § 29-27-310;
7. (7) “Partition in kind” means the division of heirs property into physically distinct and separately titled parcels;
8. (8) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and
9. (9) “Relative” means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this part.

§ 29-27-303. Applicability — Relation to other law.

(a) This part applies to partition actions filed on or after July 1, 2022.
(b) In an action under this chapter, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property and a cotenant seeks partition, then the property shall be partitioned under this part.
(c) This part supplements parts 1 and 2 of this chapter and, if an action is governed by this part, then this part replaces provisions of parts 1 and 2 of this chapter that are inconsistent with this part.
(d) This part is remedial in nature and shall be construed to extend to the court the discretion necessary to effectuate this part.

§ 29-27-304. Service — Notice by posting.

(a) This part does not limit or affect the method by which service of a petition in a partition action may be made.
(b) If the plaintiff in a partition action seeks notice by publication and the court determines that the property may be heirs property, then the plaintiff, no later than ten (10) days after the court's determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. The sign must state that the action has commenced and identify the name and address of the court, the case number, and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.

§ 29-27-305. Commissioners.

If the court appoints commissioners pursuant to § 29-27-114, each commissioner, in addition to the requirements and disqualifications applicable to commissioners in § 29-27-114, must be disinterested, impartial, and not a party to or a participant in the action.

§ 29-27-306. Determination of value.

(a) Except as otherwise provided in subsections (b) and (c), if the court determines that the property that is the subject of a partition action is heirs property, then the court may consider the county's tax appraised value. If an objection to the tax appraisal is filed by a party within thirty (30) days of receipt of the appraisal, then the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (d).
(b) If all cotenants have agreed to the value of the property or to another method of valuation, then the court shall adopt that value or the value produced by the agreed method of valuation.
(c) If the court determines that the evidentiary value of an independent appraisal is outweighed by the cost of the appraisal, then the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
(d) If the court orders an appraisal, then the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property, assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
(e) If an appraisal is conducted pursuant to subsection (d), then the plaintiff shall send notice to each party with a known address no later than ten (10) days after the appraisal is filed, stating:
1. (1) The appraised fair market value of the property;
2. (2) That the appraisal is available at the clerk's office; and
3. (3) That a party may file with the court an objection to the appraisal no later than thirty (30) days after the notice is sent, stating the grounds for the objection.
(f) If an appraisal is filed with the court pursuant to subsection (d), then upon motion of a party, the court shall conduct a hearing to determine the fair market value of the property no sooner than thirty (30) days after a copy of the notice of the appraisal is sent to each party under subsection (e), regardless if an objection to the appraisal is filed under subdivision (e)(3). In addition to the court-ordered appraisal, the court may consider other evidence of value offered by a party.
(g) After a hearing under subsection (f), but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.

5 Backlinks

§ 29-27-307. Cotenant buyout.

(a) If any cotenant requested partition by sale, then the plaintiff shall send notice to the parties after the determination of value under § 29-27-306 that any cotenant, except a cotenant that requested partition by sale, may buy all the interests of the cotenants that requested partition by sale.
(b) No later than forty-five (45) days, or a time period as set in the court's discretion, after the notice is sent under subsection (a), any cotenant, except a cotenant that requested partition by sale, may file notice with the court and serve notice to all parties that the cotenant elects to buy all the interests of the cotenants that requested partition by sale.
(c) The purchase price for each of the interests of a cotenant that requested partition by sale is the value of the entire parcel determined under § 29-27-306 multiplied by the cotenant's fractional ownership of the entire parcel.
(d) After expiration of the period in subsection (b), a party may move the court to set a hearing to determine the allocation of the interests, subject to the following rules:
1. (1) If only one (1) cotenant elects to buy all the interests of the cotenants that requested partition by sale, then the court shall notify all the parties of that fact at the hearing;
2. (2) If more than one (1) cotenant elects to buy all the interests of the cotenants that requested partition by sale, then the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant; and
3. (3) If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, then, at the hearing, the court shall order the plaintiff to send notice to all the parties of that fact and resolve the partition action under § 29-27-308(a) and (b).
(e) If the notice is sent to the parties under subdivision (d)(1) or (d)(2), then the court shall set a date, no sooner than sixty (60) days after the date the notice was sent, by which electing cotenants must appear and pay their apportioned price to the court. At this hearing, the following rules apply:
1. (1) If all electing cotenants appear before the court and timely pay their apportioned price into court, then the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to the amounts;
2. (2) If no electing cotenant appears before the court and timely pays its apportioned price, then the court shall resolve the partition action under § 29-27-308(a) and (b), as if the interests of the cotenants that requested partition by sale were not purchased; and
3. (3) If one (1) or more but not all of the electing cotenants appears before the court and fails to pay their apportioned price on time, then the court shall order the plaintiff to give notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for all remaining interest.
(f) At a hearing no later than twenty (20) days after the notice is given pursuant to subdivision (e)(3), or a time period as set in the court's discretion, any cotenant that paid may elect to purchase all of the remaining interest by paying the entire price to the court. At the hearing, the following rules apply:
1. (1) If only one (1) cotenant pays the entire price for the remaining interest, then the court shall issue an order reallocating the remaining interest to that cotenant. The court shall issue an order reallocating the interests of all of the cotenants and disburse the amounts held by the court to the persons entitled to the amounts;
2. (2) If no cotenant pays the entire price for the remaining interest, then the court shall resolve the partition action under § 29-27-308(a) and (b), as if the interests of the cotenants that requested partition by sale were not purchased; and
3. (3) If more than one (1) cotenant pays the entire price for the remaining interest, then the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall issue an order reallocating all of the cotenants' interests, disburse the amounts held by the court to the persons entitled to the amounts, and refund any excess payment held by the court.
(g) No later than forty-five (45) days, or a time period as set in the court's discretion, after the notice is sent to the parties pursuant to subsection (a), any cotenant entitled to buy an interest under this section may move the court to set a hearing to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the complaint but that did not appear in the action.
(h) If the court receives a timely motion under subsection (g), then the court, after a hearing, may deny the motion or authorize the requested additional sale on terms as the court determines are fair and reasonable, subject to the following limitations:
1. (1) A sale authorized under this subsection (h) may occur only after the purchase prices for all interests subject to sale under subsections (a)-(f) have been paid to the court and those interests have been reallocated among the cotenants as provided in subsections (a)-(f); and
2. (2) The purchase price for the interest of a nonappearing cotenant is based on the court's determination of value under § 29-27-306.

2 Backlinks

§ 29-27-308. Partition alternatives.

(a) If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to § 29-27-307, or if after conclusion of the buyout under § 29-27-307, a cotenant remains that has requested partition in kind, then upon motion and hearing, the court may order partition in kind unless the court, after consideration of the factors listed in § 29-27-309, finds that partition in kind will result in great prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two (2) or more parties to have their individual interests aggregated.
4 Backlinks
(b) If, at the hearing, the court does not order partition in kind under subsection (a), then the court shall order partition by sale pursuant to § 29-27-310 or, if no cotenant requested partition by sale, the court shall dismiss the action.
(c) If, at the hearing, the court orders partition in kind pursuant to subsection (a), then the court may require that one (1) or more cotenants pay one (1) or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
(d) If the court orders partition in kind, then the court may allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out pursuant to § 29-27-307, a part of the property representing the combined interests of these cotenants, as determined by the court, and this part of the property must remain undivided.

§ 29-27-309. Considerations for partition in kind.

(a) In determining whether partition in kind would result in great prejudice to the cotenants as a group pursuant to § 29-27-308(a), the court may consider the following:
1. (1) Whether the heirs property practicably can be divided among the cotenants;
2. (2) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur;
3. (3) Evidence of the collective duration of ownership or possession of the property by a cotenant and one (1) or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other;
4. (4) A cotenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant;
5. (5) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property;
6. (6) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
7. (7) Any other factor determined by the court to be relevant.
(b) The court shall not consider one (1) factor in subsection (a) to be dispositive without weighing the totality of all relevant factors and circumstances.

1 Backlink

29-27-308(a)

§ 29-27-310. Open-market sale, sealed bids, or auction.

(a) If the court orders a sale of heirs property, then the court shall determine the method of sale that is most economically advantageous and in the best interest of the cotenants as a group. The method of sale may be an open-market sale, a sale by sealed bids, or an auction.
(b) If the court orders an open-market sale and the parties, no later than ten (10) days after the entry of the order, agree on a special commissioner or a real estate broker licensed in this state to offer the property for sale, then, upon motion, the court shall appoint the special commissioner or broker and establish a reasonable commission. If the parties do not agree on a special commissioner or broker, then, upon motion, the court shall appoint a disinterested special commissioner or real estate broker licensed in this state to offer the property for sale and establish a reasonable commission. The special commissioner or broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court.
1 Backlink
- 29-27-311(a)
(c) If the special commissioner or broker appointed under subsection (b) obtains within a reasonable time an offer to purchase the property for at least the determination of value:
1. (1) The special commissioner or broker shall comply with the reporting requirements in § 29-27-311; and
2. (2) The sale may be completed in accordance with state law other than this part.
(d) If the special commissioner or broker appointed under subsection (b) does not obtain within a reasonable time an offer to purchase the property for at least the determination of value, then the court, after a hearing, may:
1. (1) Approve the highest outstanding offer, if any;
2. (2) Redetermine the value of the property and order that the property continue to be offered for an additional time; or
3. (3) Order that the property be sold by sealed bids or at an auction.
(e) If the court orders a sale by sealed bids or at an auction, then the court shall set terms and conditions of the sale. If the court orders an auction, then the auction must comply with part 2 of this chapter.
(f) If a purchaser is entitled to a share of the proceeds of the sale, then the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.

4 Backlinks

§ 29-27-311. Report of open-market sale.

(a) Unless required to do so within a shorter time by part 2 of this chapter or by the court in the court's discretion, a broker appointed under § 29-27-310(b) to offer heirs property for open-market sale shall file a report with the court and serve a copy on all parties no later than seven (7) days after receiving an offer to purchase the property for at least the value determined under § 29-27-306 or § 29-27-310.
(b) The report required by subsection (a) must contain the following information:
1. (1) A description of the property to be sold to each buyer;
2. (2) The name of each buyer;
3. (3) The proposed purchase price;
4. (4) The terms and conditions of the proposed sale, including the terms of any owner financing;
5. (5) The amounts to be paid to lienholders;
6. (6) A statement of contractual or other arrangements or conditions of the broker's commission; and
7. (7) Other material facts relevant to the sale.

1 Backlink

29-27-310(c)(1)

§ 29-27-312. Uniformity of application and construction.

In applying and construing this act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§ 29-27-313. Relation to Electronic Signatures in Global and National Commerce Act.

This part modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.), but does not modify, limit, or supersede Section 101(c) of that act (15 U.S.C. § 7001(c)), or authorize electronic delivery of the notices described in Section 103(b) of that act (15 U.S.C. § 7003(b)).

Chapter 28 Products Liability Actions

§ 29-28-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Products Liability Act of 1978.”

§ 29-28-102. Chapter definitions.

As used in this chapter unless the context otherwise requires:
1. (1) “Anticipated life.” The anticipated life of a product shall be determined by the expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption;
2. (2) “Defective condition” means a condition of a product that renders it unsafe for normal or anticipatable handling and consumption;
3. (3) “Employer” means any person exercising legal supervisory control or guidance of users or consumers of products;
4. (4) “Manufacturer” means the designer, fabricator, producer, compounder, processor or assembler of any product or its component parts;
5. (5) “Product” means any tangible object or goods produced;
6. (6) “Product liability action” for purposes of this chapter includes all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. “Product liability action” includes, but is not limited to, all actions based upon the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent; misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other substantive legal theory in tort or contract whatsoever;
7. (7) “Seller” includes a retailer, wholesaler, or distributor, and means any individual or entity engaged in the business of selling a product, whether such sale is for resale, or for use or consumption. “Seller” also includes a lessor or bailor engaged in the business of leasing or bailment of a product; and
8. (8) “Unreasonably dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

2 Backlinks

§ 29-28-103. Limitation of actions — Exception.

(a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions, it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.
(b) The foregoing limitation of actions shall not apply to any action resulting from exposure to asbestos or to the human implantation of silicone gel breast implants.
(c)
1. (1) Any action against a manufacturer or seller for injury to a person caused by a silicone gel breast implant must be brought within a period not to exceed twenty-five (25) years from the date such product was implanted; provided, that such action must be brought within four (4) years from the date the plaintiff knew or should have known of the injury.
2. (2) For purposes of this subsection (c) only, “seller” does not include a hospital or other medical facility where the procedure took place, nor does “seller” include the physician or other medical personnel involved in the procedure.
3. (3) This subsection (c) only applies to causes of action not pending or decided on or before May 26, 1993. For the purposes of this subsection (c), a “pending case” is defined as a case actually filed by a silicone gel-filled breast implant recipient.

§ 29-28-104. Compliance with government standards — Rebuttable presumption.

(a) Compliance by a manufacturer or seller with any federal or state statute or administrative regulation existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning or instructions for use of a product, shall raise a rebuttable presumption that the product is not in an unreasonably dangerous condition in regard to matters covered by these standards.
(b) A manufacturer or seller, other than a manufacturer of a drug or device, shall not be liable for exemplary or punitive damages if:
1. (1) The product alleged to have caused the harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency; or
2. (2) The product was in compliance with a statute of the state or the United States, or a standard, rule, regulation, order, or other action of a government agency pursuant to statutory authority, when such statute or agency action is relevant to the event or risk allegedly causing the harm and the product was in compliance at the time the product left the control of the manufacturer or seller.
(c) Subsection (b) shall not apply if the claimant establishes that the manufacturer or seller:
1. (1) At any time before the event that allegedly caused the harm, sold the product after the effective date of an order of a government agency that ordered the removal of the product from the market or withdrew the agency's approval of the product; or
2. (2) In violation of applicable regulations, withheld or misrepresented to the government agency information material to the approval and such information is relevant to the harm which the claimant allegedly suffered.
(d) The award of punitive or exemplary damages against a manufacturer of a drug or device shall be governed by § 29-39-104.

§ 29-28-105. Determination of defective or dangerous condition.

(a) A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.
(b) In making this determination, the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable. Consideration is given also to the customary designs, methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products.
(c) This section does not apply to an action based on express warranty or misrepresentation regarding the chattel.
(d) A product is not unreasonably dangerous because of a failure to adequately warn of a danger or hazard that is apparent to the ordinary user.

§ 29-28-106. Seller's liability.

No product liability action, as defined in § 29-28-102, shall be commenced or maintained against any seller, other than the manufacturer, unless:
1. (1) The seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the alleged harm for which recovery of damages is sought;
2. (2) Altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought;
3. (3) The seller gave an express warranty as defined by title 47, chapter 2;
4. (4) The manufacturer or distributor of the product or part in question is not subject to service of process in this state and the long-arm statutes of Tennessee do not serve as the basis for obtaining service of process; or
5. (5) The manufacturer has been judicially declared insolvent.

1 Backlink

29-11-107(b)(2)

§ 29-28-107. Complaint — Statement of damages.

Any complaint filed in a products liability action shall state an amount of such suit sought to be recovered from any defendant.

§ 29-28-108. Product altered or abnormally used.

If a product is not unreasonably dangerous at the time it leaves the control of the manufacturer or seller but was made unreasonably dangerous by subsequent unforeseeable alteration, change, improper maintenance or abnormal use, the manufacturer or seller is not liable.

Chapter 29 Quieting Title

§ 29-29-101. Persons not in being made defendants.

In any suit in equity brought in any court under its general equity jurisdiction to quiet, perfect, or adjudge the title to real estate, or to remove clouds from the title thereof, situated within the state, in which suit it is sought to determine the rights or claims of any person not in being, such person may be made defendant, and such parties defendant may be designated by general words of descriptions such as the unborn children or representatives of children of A. B. a living person.

1 Backlink

29-29-102

§ 29-29-102. Constructive service on persons not in being.

If in such suit it shall appear that there is or may be any person who has been made a party defendant under § 29-29-101, a general notice of such suit shall be published in a newspaper within the county in which the land involved is situated, and if there is no newspaper in the county, then in an adjoining county, for four (4) consecutive weeks next preceding the hearing of such suit, and also general notice shall be posted in a conspicuous place on the premises for four (4) weeks next preceding the hearing of such suit, and notice given in accordance with this section shall be deemed constructive service on all unborn parties defendant.

1 Backlink

29-29-103

§ 29-29-103. Guardian ad litem or next friend.

If, after notice has been given as provided in § 29-29-102, it shall appear to the court that there are parties defendant who are not in being and who are not represented before the court, the court may of its own motion or on the motion of any party, appoint a suitable person to act as guardian ad litem or next friend of any such party or parties, and if there are or may be any parties defendant who have conflicting interests, the court may appoint different guardians ad litem or next friends to represent them.

§ 29-29-104. Costs of guardian or next friend.

The cost of appearance of any such guardian ad litem or next friend, including compensation of counsel, shall be determined by the court and paid by the complainant, and execution against the complainant may issue therefor in the name of the guardian ad litem or next friend.

§ 29-29-105. Effect of decree — Jurisdiction in personam — Testamentary contingent remainders.

(a) After the appointment of a guardian ad litem or next friend, the court may proceed as though the parties defendant were in being and actually served with process.
(b) Such suit shall be deemed to be a proceeding in rem against the land, and a decree establishing or declaring the validity, nature, or extent of complainant's title or interest, shall operate directly on the land and shall have the force of a release made by or on behalf of all parties defendant of all claims inconsistent with the title established thereby.
(c) Nothing herein contained shall prevent the court from also exercising its ordinary jurisdiction in personam against parties defendant who have been actually served with process, and who are personally amenable to its decree.
(d) Nothing in this chapter shall be construed to affect any contingent remainder created by any will or devise of any deceased person.

Chapter 30 Recovery of Personal Property

Part 1 Action to Recover Personal Property

§ 29-30-101. Action to recover personal property.

Where goods, chattels, or other items of tangible personal property are in the possession of another, the person entitled to possession thereof may recover such goods, chattels, or other tangible personal property by filing an action to recover personal property.

§ 29-30-102. Jurisdiction and venue.

(a) The action may be instituted in the court of general sessions or in the circuit court or chancery court.
(b) The action may be instituted in any county where any part of the personal property is located, in the county where the contract was executed, in the county where any defendant resides or in the county where the address of any defendant was stated to be in any writing on which the plaintiff's claim to possession is founded.

§ 29-30-103. Complaint or warrant — Affidavit — Exhibit.

(a) The action to recover personal property shall be commenced by filing a complaint in the circuit or chancery court, or by causing a warrant to issue in the general sessions court.
(b) If the plaintiff's right of possession is founded upon a writing, a copy of the writing shall be attached as an exhibit to the affidavit.
(c) The complaint or warrant shall be sworn to, or have attached a sworn affidavit. The following facts shall be sworn to:
1. (1) That the plaintiff is entitled to possession of the described property and the reason plaintiff is so entitled;
2. (2) A description which reasonably identifies the property sought; and
3. (3) The value of the property.

§ 29-30-104. Filing of action — Process — Possessory hearing — Procedure — Forms.

(a) The action to recover personal property shall be filed with the clerk and process shall issue. The process shall show on its face that a possessory hearing will be held on a date and a time specified before the judge or chancellor of the court where the action is filed.
(b) The purpose of the possessory hearing is to protect the defendant's use and possession of the property from arbitrary or mistaken deprivation. If the judge shall, after conducting the possessory hearing, find that the plaintiff's claim for immediate possession should be sustained, the judge shall issue a writ of possession.
(c) The possessory hearing shall be held in not less than five (5) nor more than twenty (20) days after the process is served upon the defendant; provided, failure to do so within the time period shall not be grounds for dismissal.
(d) The process shall notify the defendant that if the defendant fails to appear and offer evidence, the court shall issue the writ of possession, and in actions filed in courts of general sessions, the process shall also notify the defendant that if the defendant fails to appear and offer evidence, the judge shall enter a default judgment for the relief sought in the warrant.
(e) Whether or not the claim for immediate possession is allowed at a possessory hearing the action commenced hereunder shall be tried in all respects as other actions are tried in the particular court in which it is filed.
(f) The process in general sessions court shall have attached or annexed to it a blank form for the use of the court in entering its judgment and a blank form for the use of the defendant or defendants in waiving a hearing, all of which shall be in substantially the following form:
2. “State of Tennessee
3. County of
4. To any lawful officer to execute and return:
5. Summon to appear before the court of general sessions of County, Tennessee, to be held in the courtroom of the court in that county, on the day of , 20 , at a.m., then and there to answer in a civil action brought by for under $.
6. This is the day of , 20.
7. Clerk of the Court of General
8. Sessions
9. By:
10. Deputy Clerk
11. Judgment for the plaintiff for $ and the costs of the cause, and for the possession of the property described in the warrant. The officer is hereby directed to take the property described in the warrant out of the possession of the defendant(s) and deliver the same to the plaintiff(s). The plaintiff(s) shall dispose of the property in accordance with the applicable provisions of the Uniform Commercial Code and shall notify the defendant(s) the amount to be credited against this judgment prior to the issuance of any writ of execution.
12. This day of , 20.
14. Judge”
15. “WAIVER
16. I (we), , the defendant(s) herein, acknowledge that the plaintiff is entitled to possession of the described property, and I (we) hereby voluntarily waive any right to a hearing by tendering the property herewith to the officer, and I (we) acknowledge that if I (we) do not appear and answer as to the merits of the matter on the date specified herein, that a default judgment may be entered against me (us). I (we) the defendant(s) herein acknowledge that the process server has read and explained to me (us) that I (we) have a constitutional right to a hearing and that I (we) are not required to sign this document of waiver and that I (we) have signed this document of waiver voluntarily.
18. Defendant(s)”
If the action to recover personal property is an action to satisfy a lien on a motor vehicle for repayment of a loan, the process in general sessions court shall also have attached or annexed to it a blank inventory from which shall be in substantially the following form:
1. “INVENTORY
2. I (we), , the defendant(s) herein, acknowledge that the following items are attached to or a part of the motor vehicle which is the subject of this action as described by the officer serving this process:
3. (1) (tires, type and model)
4. (2) (radio equipment)
5. (3) (stereo or tape equipment)
6. (4) (citizen's band radio)
7. (5) (other special items added to vehicle after purchase)
9. Defendant(s) (Date)
11. Officer Serving Process (Date)
(g) No objection shall be made as to the form of process if the essential matters of this section are set forth in the process.
(h) The process in all other courts shall have attached or annexed to it a blank form for the use of the defendant or defendants in waiving a hearing, all of which shall be in substantially the following form:
2. “State of Tennessee
3. County of
4. To the Sheriff of County:
5. I command you to summon the defendant, , to appear before , judge or chancellor for this county, on the day of , 20, and answer the complaint of the plaintiff, , for recovery of the following property:
7. (Describe property)
8. This the day of , 20
9. Circuit Court Clerk (or Clerk and Master)
10. By: ”
11. “WAIVER
12. I (we), , the defendant(s) herein, acknowledge that the plaintiff is entitled to possession of the described property, and I (we) hereby voluntarily waive any right to a hearing by tendering the property herewith to the officer and acknowledge that if I (we) do not appear and answer as to the entire matter on the date specified herein, a default judgment may be entered against me (us).
14. Defendant(s)”

§ 29-30-105. Restraining order against defendant — Penalty for violation — Form of order.

(a) If requested by the plaintiff and upon the plaintiff's posting bond in an amount to be determined by the court, but not to exceed the value of the property, the judge may concurrently issue an order restraining the defendant from damaging, concealing or removing such property from the court's jurisdiction.
(b) Upon proper showing that such order has been violated, the defendant commits a Class C misdemeanor.
(c) The restraining order shall be substantially in the following form:
1. “FIAT
2. Upon the plaintiff posting a bond in the amount of $ , the defendant(s) is (are) hereby restrained from damaging, concealing or removing the described property from the jurisdiction of this court.
4. Judge (Chancellor)”
5. IF THIS RESTRAINING ORDER IS VIOLATED, THE DEFENDANT(S) COMMITS A CLASS C MISDEMEANOR AND IS SUBJECT FOR EACH VIOLATION TO A FINE NOT TO EXCEED FIFTY DOLLARS ($50.00) OR IMPRISONMENT FOR NOT MORE THAN THIRTY (30) DAYS, OR BOTH.

§ 29-30-106. Procedure to expedite action for writ of possession.

(a) As an alternative to commencing an action to recover personal property as otherwise provided in this part, any party needing or desiring to expedite the proceeding may commence and expedite the action by proceeding as follows:
1. (1) Application for a writ of possession may be made to the appropriate court at the beginning of the first session of court during the day, or at such other time of day as the court, by local rule, has established. Either simultaneously with the making of such application or prior thereto, the party seeking a writ of possession shall file a verified complaint with which shall be exhibited a copy of any writing upon which the alleged claim to possession is founded. Upon the making of such application, the court shall hear the parties and shall order the writ of possession issued giving the plaintiff immediate possession of the property where the court finds either:
  1. (A) That at least five (5) days prior to such application plaintiff mailed by certified mail or delivered to defendant a notice of the time and place of such application and that:
    1. (i) Such notice had either been received by the defendant, or was directed to the defendant at the address stated in any writing, signed by the defendant, and on which the plaintiff's claim to possession is founded;
    2. (ii) Such notice was accompanied by a copy of plaintiff's complaint, including a copy of any writing on which the plaintiff's claim to possession was founded; and
    3. (iii) The plaintiff is entitled to possession of the property, or that there is no substantial controversy as to the plaintiff's right to such possession; or
  2. (B)
    1. (i)
      1. (a) That the property was obtained by fraud, misrepresentation or theft, or
      2. (b) That the defendant is:
        
        (1) Concealing the property;
        
        (2) Likely to remove it from the jurisdiction of the court;
        
        (3) Likely to dispose of the property;
        
        (4) Endangering the property by unusually hazardous use; or
        
        (5) Seriously impairing the plaintiff's security interest in the property, such as by use in some manner other than that contemplated by the parties, or by failing to maintain hazard insurance on the property where the written instrument or agreement on which the plaintiff's claim is founded requires such insurance;
    2. (ii) A writ of possession issued pursuant to this subdivision (B) shall be conditioned on the plaintiff's posting a bond in an amount fixed by the court which shall not be less than the value of the property;
2. (2)
  1. (A) If, at the time the plaintiff makes application pursuant to subdivision (a)(1)(A), the defendant appears and admits in open court the plaintiff's right to possession of the property, the court shall issue a writ of possession to the plaintiff;
  2. (B) If, at the time the plaintiff makes application pursuant to subdivision (a)(1)(A), the defendant does not appear, there shall be an inference that the defendant does not dispute the plaintiff's right to possession, and the writ of possession shall be issued if the verified complaint demonstrates the plaintiff's right to possession. The writ shall direct the officer to take possession of the property and deliver it to the plaintiff and to summon the defendant to appear and answer within ten (10) days if the action is in the court of general sessions and within thirty (30) days if in any other court;
  3. (C) In like manner, where a writ of possession is issued pursuant to subdivision (a)(1)(B), the writ shall direct the officer to take possession of the property and deliver it to the plaintiff and to summon the defendant to appear and answer within ten (10) days if the action is in the court of general sessions and within thirty (30) days if in any other court;
  4. (D) When the defendant appears and resists the plaintiff's application for a writ of possession made in accordance with subdivision (a)(1)(A), the court shall at that time either try the action or:
    1. (i) Fix a time within which defendant shall answer;
    2. (ii) Fix a time for the trial; and
    3. (iii) Determine which party shall have possession of the property pending a final determination by the court and condition such possession upon the posting of such bond as the court may deem advisable. Where such party fails or refuses to post such bond, the officer shall take possession of the property and retain it either until the bond is posted or until the court enters its final judgment.
(b) Except for the provisions of this section which must be complied with in order to expedite the proceeding, actions commenced pursuant to this section shall be governed by the remaining provisions of this part.

§ 29-30-107. Writ of possession — Execution — Preservation of property — Answer.

(a) The writ of possession shall direct the proper officer to take the property out of the possession of the defendant and deliver the same to the plaintiff.
(b) The writ of possession shall be executed by the proper officer by seizing the personal property and delivering the same to the plaintiff.
(c) If the property subject to the action hereunder is perishable or threatens to decline speedily in value, the court shall issue such other and further orders as it may find necessary to preserve the property or the value thereof for the benefit of either or both of the parties pending such final determination of the litigation.
(d) If the action in circuit or chancery courts is answered before or after the possessory hearing, the answer shall set forth with reasonable certainty the location of the personal property and any and all rights, remedies, credits, setoffs, or affirmative action growing out of the same matter the defendant may have had against the plaintiff.

§ 29-30-108. Additional relief — Prerequisites to deficiency judgment.

(a) In an action to recover personal property, in addition to the recovery of the property, the plaintiff may proceed to recover the balance due on the debt or the plaintiff may, in addition to recovering the personal property, obtain a judgment against the defendant for any debt or other claim arising out of the same transaction or set of circumstances, or the plaintiff may proceed solely for recovery of the personal property with the right to seek a judgment for additional relief in a subsequent action.
(b) No deficiency judgment shall be obtained by the plaintiff or plaintiffs until plaintiff or plaintiffs shall have complied with all requirements of the Uniform Commercial Code applicable thereto.

§ 29-30-109. Execution of appeal bond.

In the event an appeal is perfected to the supreme court or to the court of appeals, or to the circuit court from such judgment, the appellant shall execute an appeal bond as is otherwise provided for by law.

§ 29-30-110. Exemplary damages — Attorneys fees.

The court may, in proper cases, give exemplary damages, including reasonable attorneys fees, in favor of the defendant for the plaintiff's wrongful suing out of this possessory action or in the event that the plaintiff fails to prosecute the action after it has been instituted.

§ 29-30-111. Issue of counterparts of writs.

Counterpart of the writ of possession may issue, upon suggestion of the plaintiff, to any other county, to be executed upon the goods, or chattels, or served upon defendants found in such county. The court has power to order the issuance of alias and pluries process and writs of possession, and the necessary counterparts thereof, as often as may be necessary.

Part 2 Detinue

§ 29-30-201. Detinue.

Where the action is to recover specific personal property, if the party seeks to recover the possession only at the end of the suit, the party may bring detinue.

§ 29-30-202. Venue of action.

The action may be brought in any county in which the goods and chattels, or any part of them, are, or in which either of the defendants may be found.

§ 29-30-203. Procedure after personal service but failure to get property.

If the officer's return is that the officer has summoned the defendant, but could not get possession of the goods and chattels sued for, the plaintiff may elect to proceed in case or detinue, and then the cause shall be conducted as if the leading process had been in one of those forms.

§ 29-30-204. Publication on nonresident.

Should the defendant, or any defendant, be a nonresident of the state, the officer shall return the fact and the court shall order publication to be made for four (4) successive weeks in some newspaper published in the county in which the suit is pending, or in the nearest county. The publication shall state the names of the parties and briefly set forth the nature of the writ.

§ 29-30-205. Clerk's liability for insufficient bond.

The clerk shall not be exempt, by reason of such orders made by the court, from liability for any damages proceeding from failure to take good and sufficient security.

§ 29-30-206. Trial without personal service.

If there be no personal service, the court shall impanel a jury and try the cause as though the defendant had filed a plea.

§ 29-30-207. Monetary damages.

On the issue being found for the plaintiff, or in case of default, upon writ of inquiry, the jury shall ascertain the plaintiff's damages for the seizure and detention, and judgment shall be rendered therefor with costs.

§ 29-30-208. Judgment for defendant.

If the issue is found for the defendant, or the plaintiff dismisses or fails to prosecute the suit, the judgment shall be that the goods be returned to the defendant, or, on failure, that the defendant recover their value, with interest thereon and damages for the detention, the value of the property and the damages to be assessed by the jury trying the cause; or, where the plaintiff fails to prosecute, by a jury impaneled for the purpose.

1 Backlink

29-30-209

§ 29-30-209. Failure to return goods under alternative judgment for defendant.

Where judgment has been rendered in the alternative, under § 29-30-208, if the goods are not returned to the defendant, and the writ of fieri facias is returned unsatisfied, in whole or in part, the defendant may have an accordant final judgment over, by motion, without notice against plaintiff and plaintiff's sureties in the replevin bond, at the term of the court to which the fieri facias shall have been returned. The proceedings of the judgment final shall be a part of the record of the original cause.

§ 29-30-210. Exemplary damages.

(a) The jury may, in proper cases, give exemplary damages in favor of either party.
(b) In all cases where the plaintiff fails to prosecute the suit with effect, the jury may make such valuation as will be likely to effect a return of the property to the defendant, if the character of the property is such as to make the return of the specific property important.

§ 29-30-211. [Reserved.]

1 Backlink

16-15-502

§ 29-30-212. Form of warrant.

The method of obtaining the writ shall be the same as when the suit is prosecuted in court, and the following shall in substance be the form of the writ:
1. State of Tennessee, To the sheriff or any constable of such county:
2. County
3. I command you to summon to appear before me, or some other general sessions judge of such county, to answer the complaint of , for unlawfully taking out of the possession and detaining [describe the property], the property of .
4. This day of , 20. E.F., G.S.J.

1 Backlink

16-15-502

§ 29-30-213. Execution of general sessions judge's writ.

Any constable may execute this writ, and, in exercising this power, shall be governed by the laws regulating sheriffs in the execution of a writ issued by a court.

§ 29-30-214. General sessions court judgment for defendant.

If the general sessions judge finds the issue in favor of the defendant, or the plaintiff dismisses or fails to prosecute the suit, the judge shall render judgment against the plaintiff and the plantiff's sureties on the replevin bond that the property replevied be returned to the defendant, or on failure to do so, that the defendant recover of plaintiff and sureties on replevin bond the value of the property replevied with interest thereon and damages for the detention of the same, the value of the property and the damage to be assessed by the judge trying the case.

§ 29-30-215. Exemplary damages in general sessions court.

(a) The general sessions judge may, in a proper case, give exemplary damages in favor of either party.
(b) In all cases where the plaintiff fails to prosecute the suit with effect, the general sessions judge may make such valuation as will be likely to effect the return of the property to the defendant if the character of the property is such as to make the return of the specific property important.

§ 29-30-216. Fees before general sessions court.

The following fees shall be allowed in such suit:
1. (1) For issuing the writ $1.00;
2. (2) For rendering the judgment .75;
3. (3) To the constable, for executing the writ 3.00.

§ 29-30-217. Appeal from general sessions court.

Either party may appeal from the general sessions court's judgment to the circuit court, within the ten (10) days allowed by § 27-5-108, on giving bond in double the value of the property replevied, payable to the opposite party, conditioned to prosecute the appeal with effect, and to abide by and perform the judgment of the circuit court; but a bond in double the value is not required of a defendant not in possession and unsuccessful before the general sessions court.

1 Backlink

16-15-502

Chapter 31 Removal of Disability of Minors

§ 29-31-101. Power to remove.

(a) The chancery court of a county in which a minor resides or the chancellor in vacation may remove the disabilities of minority; and the chancery court of any county, or the chancellor of such court in vacation, may remove the disabilities of minority of a nonresident minor of the state of Tennessee who owns, or has an interest in, any real or personal property located in the state of Tennessee, so as to enable the minor to sell and convey such real or personal property, or any interest therein, or to do any other act in respect thereof; all as fully and effectively as if the minor was eighteen (18) years of age.
(b) In all cases where a minor petitions for the removal of disabilities of minority in a county other than the county in which property is located, petition must show that no application has been previously made in the county where the property is located.
(c) The circuit court and the judge thereof shall have concurrent jurisdiction with the chancery court and chancellor to remove the disabilities of minority.

1 Backlink

16-15-501(b)(2)

§ 29-31-102. Application — Process — Appearance to resist application.

(a) The application therefor shall be made in writing by the minor by next friend, and shall state the age of such minor and the names and places of residence of the minor's parents, and if the minor has no parents, the names and places of residence of two (2) of the minor's nearest kin, within the third degree, computed according to the civil law, and the reason on which the removal of the disability is sought.
(b) When such petition shall be filed, the clerk of the court shall issue proper process as in other cases, to make the proper parties defendant, the same to be executed and returned as in other cases.
(c) Any person so made a party or other relative or friend of the minor, may appear and resist the application.

§ 29-31-103. Defendants not required.

If such kindred unite in such application, or if the minor has no kindred within the prescribed degree, or the place of residence of such kindred is unknown to the minor or the next friend, it shall not be necessary to make any person defendant thereto; provided, that if any such minor shall have a general guardian, the minor's guardian shall be made a defendant.

§ 29-31-104. Hearing and decree — Specific purpose.

(a) The court, or chancellor in vacation, shall examine the application and the objections thereto, if any, and may hear testimony, by depositions or by viva voce, in reference thereto, and shall make such decree thereon as may be for the best interest of the minor.
(b) If a decree is rendered removing the disability of a minor, it shall be rendered by the court having jurisdiction for a specific purpose and such purpose shall be so stated in such decree.

§ 29-31-105. Scope of decree.

The decree may be for the partial removal of the disability of the minor so as to enable the minor to do some particular act, proposed to be done, to be specified in the decree; or it may be general and empower the minor to do all acts in reference to the minor's property, making contract, suing and being sued and engaging in any profession or vocation which the minor could do if eighteen (18) years of age; and the decree shall distinctly specify to what extent the disability of the minor is removed and what character of business the minor is empowered to do, notwithstanding minority, and may impose such restrictions and qualifications as the court or chancellor may judge proper.

Chapter 32 Scire Facias

§ 29-32-101. Persons entitled to writ — Application.

A scire facias shall not issue on the application of any person other than the party of record, or that party's attorney, except an administrator de bonis non, in the case of a judgment recovered by a previous executor or administrator, unless such application be in writing and signed by the applicant, to be filed and preserved with the other papers.

§ 29-32-102. Issuance by general sessions judges.

(a) Judges of the courts of general sessions have power to issue scire facias in all cases before them, when it may be necessary, in the same manner and subject to the same rules as such writs issue from courts of record.
(b) Scire facias is issued by the general sessions judge having legal possession of the papers in a cause.

§ 29-32-103. Endorsement of name of applicant.

When scire facias issues upon the application of any person other than the party of record or the party's attorney, the clerk shall endorse on the back of the scire facias the name of the applicant, who becomes thereby liable for costs.

§ 29-32-104. Liability for failure to endorse.

The clerk who fails to make such endorsement is liable for costs, in the event judgment is against the party suing out the scire facias.

§ 29-32-105. Fraudulent endorsement.

If such clerk falsely and fraudulently endorse the name of any person on a writ of scire facias by such clerk issued, under the foregoing provisions, such clerk commits a Class C misdemeanor and is liable to an action for damages at the suit of such person.

§ 29-32-106. Service of writ.

The writ of scire facias is served by reading, or offering to read, the contents of such writ to the person on whom it is to be executed.

§ 29-32-107. Judgment after two returns.

When two (2) scire facias have been returned “not found” by the proper officer of the county in which the undertaking was entered into, such returns are equivalent to a personal service, and judgment may be made absolute.

1 Backlink

40-17-111

§ 29-32-108. Form of writ on forfeitures.

All scire facias issued on conditional judgments and decrees rendered by any of the courts of this state on forfeited bonds, recognizances, subpoenas, summons, and other like obligations may be substantially in the following form, to wit:
1. State of Tennessee, county of
2. To the sheriff [or coroner, as the case may be] of the county:
  1. You are hereby commanded in the name of the state to notify and that a conditional judgment was rendered against them in the circuit court [or whatever court it may be] of county, for the sum of $ and costs on a forfeited bond [or recognizance, or whatever obligation it is], and the same will be made final unless you appear at the next term of court [or whatever the time may be under the order of the court], and show cause to the contrary.
  2. Signed by the clerk, etc., with proper endorsement as to date of, etc.

1 Backlink

29-32-109(c)

§ 29-32-109. Form adapted to circumstances — Jurisdictional facts — Amendment of scire facias.

(a) If the conditional judgment be on a forfeited subpoena, or summons, to serve as jurors, or any other obligation, the scire facias shall be so changed in form from the above as to give the parties notice of the nature of the obligation on which it is rendered.
(b) It shall not be necessary to set out in full all the jurisdictional facts in any scire facias as heretofore required.
(c) When any scire facias fails to contain the necessary allegations or facts as required under § 29-32-108, it may be amended in court according to the practice in reference to amendments of other writs and pleadings.

1 Backlink

40-17-111

Chapter 33 Sureties on Bonds—Actions to Protect Interest

§ 29-33-101. Application for release from prosecution or defense bond.

A surety for the prosecution or defense of any suit in law or equity may be released from such suretyship by giving five (5) days' notice to the surety's principal, if in the state, and to the surety's attorney, if out of the state, of the surety's intention to move for a rule upon the surety to give counter security to provide indemnity for any liability as a surety.

§ 29-33-102. Rule to give counter security.

Upon notice thus given, the court shall make a rule requiring the principal, within a given time, to give such counter security; and on failure of the principal to comply with the rule, the court shall dismiss the suit, and give judgment against the principal and the principal's surety for the costs already accrued.

§ 29-33-103. Continuation of suit in forma pauperis.

The plaintiff may, however, prosecute the suit in the manner prescribed for poor persons, in which case the surety shall be bound only for the costs accruing up to the giving of notice.

§ 29-33-104. Relief of surety on replevy bond.

The surety upon any bond for the replevy of property, given in any cause may, by notice in writing, require the surety's principal to give surety sufficient counter security to indemnify surety against liability on such bond.

§ 29-33-105. New replevy bond.

(a) The new replevy bond, if given, shall be made payable to the original surety, and such surety is authorized to act in reference to the property as if the surety had been the plaintiff in the action.
(b) The new bond shall be filed with the original replevy bond, and may be enforced by judgment or decree, upon a breach of the original replevy bond, in favor of either the plaintiff or of the original surety.

§ 29-33-106. Attachment of replevied property.

If the principal fail to give such counter security within five (5) days after the service of notice, the clerk of the court is authorized upon affidavit of the facts, to issue a writ to the sheriff, commanding the sheriff to seize and hold such property, according to the terms of the original seizure or attachment, subject to the defendant's right to again replevy, and, in case the defendant fails so to do, then subject to such disposition as the law makes of property so seized.

§ 29-33-107. Fiduciary bond — Petition for release.

The surety of any guardian, executor, or administrator, trustee or assignee for creditors, who conceives the surety to be in danger of suffering by the suretyship, and desires to be relieved therefrom, may file a petition, in writing, in the county court, or the court having cognizance of the estate or fund.

§ 29-33-108. Relief to surety on fiduciary bond.

Upon such petition and notice, the court may compel the principal to give other sufficient security, or counter security, to be approved by the court, or to deliver up the estate to the petitioner, or such other person as may be directed, and may make such other orders and decrees for the relief of the petitioner and better security of the estate as may be just and equitable.

§ 29-33-109. Substitution of surety as fiduciary.

Should no person be found willing to accept the office, and give the security required, the applicant surety shall qualify in the place of the principal; otherwise, the liability will continue until a successor is appointed and qualified.

§ 29-33-110. New bond furnished by principal.

Upon public or private application of any surety, if the principal consents to give a new bond, with satisfactory security, it may be taken without further proceedings, with the same effect, as if executed upon order.

§ 29-33-111. Witnesses in hearings.

The officer authorized to hear and dispose of such applications may administer oaths and summon witnesses in the same way and under the same penalties as the courts of the state.

§ 29-33-112. Exoneration of surety.

On the execution of the additional bond as required, or the qualification of a successor, the applicant surety is exonerated from all liability accruing subsequently.

§ 29-33-113. Effect of exoneration.

The exoneration of the applicant surety does not affect the previous liability of any of the obligors in the original bond; nor are any of the obligors who have not joined in such application discharged from any liability accruing after the filing of such additional bond; and the obligors who are not exonerated are liable to any person injured by a breach of such bonds, in the same or separate actions.

§ 29-33-114. Contribution between sureties.

The sureties, in either bond who have been compelled to make payments thereon for the principal, have the same remedies against the sureties in all the bonds in force at the time of default, as cosureties in the same bond have against each other, the recovery being properly proportioned according to the penalties of the several bonds.

§ 29-33-115. Costs.

The costs of the application, if unsuccessful, shall be paid by the applicant; if successful, by the principal, and judgment may be given and execution issued therefor.

Chapter 34 Torts

Part 1 Generally — Privity

§ 29-34-101. Express consent required for settlements.

In any tort action, prior settlement of damages made on behalf of the plaintiff by another, in exchange for a release executed by or on behalf of the defendant, shall constitute no bar to the plaintiff's action, and proof by the defendant of such settlement and release shall be inadmissible, unless it be shown that such settlement made on behalf of the plaintiff was with the express consent of the plaintiff given in writing, after the cause of action arose.

§ 29-34-102. Rescission of fraudulent or erroneous settlements.

Where a compromise settlement of a claim for damages resulting from personal injuries has been brought about by fraud or mistake, such settlement may be rescinded without return of the consideration to the party released, but such consideration paid shall constitute a credit to apply in satisfaction of any judgment procured on account of such personal injuries.

§ 29-34-103. Provision of settlement agreement concealing details relating to claim of child sexual abuse void and unenforceable.

Notwithstanding any law to the contrary, any provision of a settlement agreement that has the purpose or effect of concealing the details relating to a claim of child sexual abuse, as defined in § 37-1-602, is void and unenforceable as contrary to the public policy of this state; except that identifying information concerning a victim of child sexual abuse shall be deemed and maintained as confidential.

§ 29-34-104. Privity not required.

In all causes of action for personal injury or property damage brought on account of negligence, strict liability or breach of warranty, including actions brought under the Uniform Commercial Code, privity shall not be a requirement to maintain such action.

1 Backlink

47-2A-216

§ 29-34-105. Settlements on behalf of minors.

(a)
1. (1) In any tort claim settlement involving a minor, the court shall conduct a hearing at which the minor and legal guardian are present if the tort claim settlement:
  1. (A) Is a settlement of ten thousand dollars ($10,000) or more;
  2. (B) Is a structured settlement; or
  3. (C) Involves a minor who is not represented by an attorney licensed to practice in this state.
2. (2) Notwithstanding subdivision (a)(1), the court may, in its discretion, conduct the hearing in chambers or by remote communication and may excuse the minor from attending the hearing.
1 Backlink
- 34-1-121(c)
(b) A tort claim settlement does not otherwise require court approval merely because it involves a minor.
(c) In the order approving a tort claim settlement authorized by this section, the court has the discretion to determine whether the settlement proceeds are to be paid to the minor's legal guardian or held in trust by the court until the appropriate time.

§ 29-34-106. Provision of settlement agreement prohibiting disclosure of identities of persons relating to claim void and unenforceable.

(a) Notwithstanding any law to the contrary, any provision of a settlement agreement entered into by a governmental entity that has the effect of prohibiting the disclosure of the identities of persons relating to a claim by any of the parties is void and unenforceable as contrary to the public policy of this state; except that identifying information concerning a person who is a victim of sexual harassment or an offense under title 39, chapter 13, part 5; title 39, chapter 17, part 10; § 39-13-111; § 39-13-605; § 39-15-302; § 39-15-401; or § 39-15-402 is confidential until such person authorizes the disclosure of the information.
(b) For purposes of this section, “governmental entity” means any lawfully established department, agency, or entity of this state or any political subdivision of this state.

Part 2 Tort Liability

§ 29-34-201. Injuries suffered in committing or attempting to commit felony on property of another — Recovery barred — Scope of immunity for one injuring a perpetrator of a criminal offense.

(a) Any person who is injured while committing a felony or attempting to commit a felony on the real property of another is barred from recovery of actual or punitive damages resulting from injuries, either accidentally or intentionally inflicted by the owner, lawful occupier or tenant of such property, which the person receives while committing or attempting to commit a felony.
(b)
1. (1) A person who accidentally or intentionally causes property damage to or inflicts injury or death upon the perpetrator of a criminal offense is absolutely immune from civil liability for or the payment of monetary damages from such person's actions if at the time such damage, injury or death occurred:
  1. (A) The person was preventing or attempting to prevent the perpetrator from committing the offense or was apprehending the perpetrator of the offense; and
  2. (B) The perpetrator was committing one (1) or more of the offenses specified in subdivisions (c)(1)-(9) or was attempting to commit one (1) or more of the offenses specified in subdivision (c)(10).
2. (2) The immunity conferred by this subsection (b) shall only apply to property damage caused to or injury or death inflicted upon a perpetrator of an enumerated offense and only under the conditions set out in this subsection (b). Such immunity shall not be construed to extend to property damage caused to or injury or death inflicted upon a bystander or other person who is not the perpetrator of an enumerated offense.
(c) The offenses for which such immunity applies are:
1. (1) Any criminal homicide;
2. (2) Aggravated rape;
3. (3) Kidnapping;
4. (4) Aggravated kidnapping;
5. (5) Especially aggravated kidnapping;
6. (6) Especially aggravated burglary;
7. (7) Aggravated robbery;
8. (8) Especially aggravated robbery;
9. (9) Carjacking; and
10. (10) Attempt to commit first or second degree murder.

7 Backlinks

§ 29-34-202. Immunity for natural gas providers — Exceptions — Product liability claims.

(a) As used in this section, unless the context otherwise requires:
1. (1) “Natural gas equipment” means storage vessels, compressors, dryers, dispensers, piping, compressed or liquefied gas appliances, or any other item that is installed by a natural gas provider; and
2. (2) “Natural gas provider” means any person or entity engaged in the business of supplying, handling, transporting, or selling at retail compressed or liquefied natural gas intended for use with properly constructed, inspected, and certified vehicle fuel systems in this state.
(b) A natural gas provider shall be immune from civil liability, if the proximate cause of the injury or damages was caused by actions of an ultimate consumer by:
1. (1) An alteration, modification or repair of gas equipment that could not have been discovered by the natural gas provider in the exercise of reasonable care; or
2. (2) The use of natural gas equipment in a manner or for a purpose other than that for which the natural gas equipment was intended to be used or could reasonably have been foreseen; provided, that the natural gas provider or the manufacturer of the natural gas equipment has taken reasonable steps to warn the ultimate consumer of the hazards associated with foreseeable misuses of the equipment.
(c)
1. (1) Nothing in this section shall be construed as affecting, modifying, or eliminating the liability of a manufacturer of natural gas equipment or its employees under any legal claim, including, but not limited to, product liability claims.
2. (2) This section applies to liability resulting from retail operations at the point of sale only. Nothing in this section shall be construed as affecting, modifying, or eliminating the liability of a manufacturer of natural gas equipment or its employees under any legal claim, including, but not limited to, product liability claims.
(d) No defendant may allege or prove that a person or entity caused or contributed to causing a plaintiff’s injuries, death, or other losses, unless the plaintiff could have maintained an action against the person.

§ 29-34-203. Immunity for first responders in responding to emergency calls.

(a) As used in this section, “first responder” means a law enforcement officer, firefighter, emergency services personnel or other person who responds to calls for emergency assistance from a 911 call.
(b) A first responder and the responder's supervisor, agency, employer or supervising entity is immune from civil liability resulting from a forcible entry of a home, business or other structure if the first responder:
1. (1) Is responding to a documented 911 call for emergency assistance;
2. (2) Has made reasonable efforts to summon an occupant of the home, business, or structure that made the call by knocking or otherwise notifying the occupant of the first responder's presence;
3. (3) Has not received a response from an occupant within a reasonable period of time after making reasonable efforts pursuant to subdivision (b)(2); and
4. (4) Has a good faith belief that it is necessary to make a forcible entry for the purposes of rendering emergency assistance or preventing imminent bodily harm.
(c) Nothing in this section shall affect the standard of care a first responder must employ when rendering aid after gaining entry.

3 Backlinks

§ 29-34-204. Charitable fundraisers — Immunity from suit.

If any philanthropic individual; cooperative, corporation, club, association or organization; or director, trustee or member of the governing body of any such cooperative, corporation, club, association or organization; supplies only financial sponsorship or support for another entity's charitable fundraising event and is not, in any way, involved in the management, organization, planning or execution of such event, and if the entity managing, organizing, planning or executing such charitable fundraising event provides liability insurance in an amount not less than one million dollars ($1,000,000) for any single occurrence and three million dollars ($3,000,000) for all occurrences of personal injury or property damage arising from such event, then such individual, cooperative, corporation, club, association, organization, director, trustee or member shall not be liable for any personal injury or damage to property arising from the other entity's charitable fundraising event. However, if such financial sponsorship or support constitutes willful, wanton or gross negligence, then such immunity from suit shall not attach.

§ 29-34-205. Commonsense consumption.

(a) Except as exempted in subsection (b), a manufacturer, producer, packer, distributor, carrier, holder, seller, marketer, or advertiser of a food, as defined in Section 201(f) of the Federal Food Drug and Cosmetic Act, codified in 21 U.S.C. § 321(f), or an association of one (1) or more such entities, shall not be subject to civil liability arising under any law of the state of Tennessee for any claim arising out of weight gain or obesity, a health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long term consumption of food.
(b) Subsection (a) shall not preclude civil liability where the claim of weight gain, obesity, health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long term consumption of food is based on:
1. (1) A material violation of an adulteration or misbranding requirement prescribed by statute or regulation of the state of Tennessee or the United States of America and the claimed injury was proximately caused by such violation; or
2. (2) Any other material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food; provided, that such violation is knowing and willful, and the claimed injury was proximately caused by such violation.
(c) For purposes of this section:
1. (1) “Claim” means any claim by or on behalf of a natural person, as well as any derivative or other claim arising therefrom asserted by or on behalf of any other person;
2. (2) “Generally known condition allegedly caused by or allegedly likely to result from long term consumption” means a condition generally known to result or to likely result from the cumulative effect of consumption, and not from a single instance of consumption;
3. (3) “Knowing and willful” violation of federal or state law means that:
  1. (A) The conduct constituting the violation was committed with the intent to deceive or injure consumers or with actual knowledge that such conduct was injurious to consumers; and
  2. (B) The conduct constituting the violation was not required by regulations, orders, rules or other pronouncement of, or any statute administered by a federal, state, or local government agency;
4. (4) “Other person” as used in subdivision (c)(1) means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity or private attorney general.
(d)
1. (1) In any action exempted under subdivision (b)(1), the complaint initiating such action shall state with particularity the following:
  1. (A) The statute, regulation, or other law of the state of Tennessee or of the United States that was allegedly violated;
  2. (B) The facts that are alleged to constitute a material violation of such statute or regulation; and
  3. (C) The facts alleged to demonstrate that such violation proximately caused actual injury to the plaintiff.
2. (2) In any action exempted under subdivision (b)(2), in addition to the pleading requirements in this subsection (d), the complaint initiating such action shall state with particularity facts sufficient to support a reasonable inference that the violation was with intent to deceive or injure consumers or with the actual knowledge that such violation was injurious to consumers. For purposes of this section, the pleading requirements in this subsection (d) are hereby deemed part of the substantive law of the state of Tennessee and not merely in the nature of procedural provisions.
(e) In any action exempted under subsection (a), all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party. During the pendency of any stay of discovery pursuant to this subsection (e), unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations, including electronically recorded or stored data, and tangible objects that are in the custody or control of such party and that are relevant to the allegations, as if they were the subject of a continuing request for production of documents from an opposing party under the state of Tennessee rules of civil procedure.

§ 29-34-206. Liability for providing firefighting equipment to volunteer departments.

(a) Any person, corporation, business entity, charitable organization, or governmental agency that acts reasonably and in good faith in donating fire control or fire rescue equipment to a volunteer fire department shall not thereafter be civilly liable for any personal injury, property damage, or death proximately caused by a defect in the equipment.
(b) Any governmental agency that acts reasonably and in good faith in administering the distribution of donated fire control or fire rescue equipment to a volunteer fire department shall not thereafter be civilly liable for any personal injury, property damage, or death proximately caused by a defect in the equipment.
(c) Subsections (a) and (b) shall not apply to a person, corporation, business entity, charitable organization, or governmental agency if:
1. (1) The defect that proximately causes the injury, damage, or loss resulted from an act or omission of the person, corporation, business entity, charitable organization, or governmental agency that constitutes malice, gross negligence, recklessness, or intentional misconduct;
2. (2) The person, corporation, business entity, charitable organization, or governmental agency is the manufacturer of the fire control or fire rescue equipment; or
3. (3) The person, corporation, business entity, charitable organization, or governmental agency modified or altered the fire control or fire rescue equipment after it had been recertified by an authorized technician as meeting the manufacturer's specifications.
(d) As used in this section, “authorized technician” means a technician who has been certified by the manufacturer of fire control or fire rescue equipment to inspect such equipment. The technician need not be employed by a state or local governmental agency administering the distribution of the fire control or fire rescue equipment.

§ 29-34-207. Liability for liquefied petroleum gas.

(a) As used in this section, unless the context otherwise requires:
1. (1) “Liquefied petroleum gas equipment” means storage vessels, piping, liquefied petroleum gas appliances, or any other item that is installed by a liquefied petroleum gas provider; and
2. (2) “Liquefied petroleum gas provider” means any person or entity engaged in the business of supplying, handling, transporting, or selling at retail liquefied petroleum gas in this state.
(b) A liquefied petroleum gas provider shall be immune from civil liability, if the proximate cause of the injury or damages was caused by:
1. (1) An alteration, modification, or repair of liquefied petroleum gas equipment that could not have been discovered by the liquefied petroleum gas provider in the exercise of reasonable care; or
2. (2) The use of liquefied petroleum gas equipment in a manner or for a purpose other than that for which the liquefied petroleum gas equipment was intended to be used or could reasonably have been foreseen; provided, that the liquefied petroleum gas provider or the manufacturer of the liquefied petroleum gas equipment has taken reasonable steps to warn the ultimate consumer of the hazards associated with foreseeable misuses of the liquefied petroleum equipment.
(c) Nothing in this section shall be construed as affecting, modifying, or eliminating the liability of a manufacturer of liquefied petroleum gas equipment or its employees under any legal claim, including, but not limited to, product liability claims.
(d) No defendant may allege or prove that a person or entity caused or contributed to causing a plaintiff's injuries, death, or other losses, unless the plaintiff could have maintained an action against the person.

§ 29-34-208. Liability of possessor of real property for harm to trespasser.

(a) As used in this section:
1. (1) “Possessor of real property” means the owner, lessee, renter, or other lawful occupant of real property; and
2. (2) “Trespasser” means a person who enters or remains on the real property of another without actual or implied permission, or a person who engages in conduct that constitutes a criminal trespass offense under §§ 39-14-405 – 39-14-407.
(b) A possessor of real property owes no duty of care to a trespasser except to refrain from willfully, with negligence so gross as to amount to willfully, intentionally, or wantonly causing injury; provided, however, that a possessor of real property may willfully, with negligence so gross as to amount to willfully, or intentionally cause injury to a trespasser or use force to prevent or terminate a trespass or criminal offense as permitted at common law, under §§ 39-11-611 — 39-11-616, and under § 29-34-201.
(c) Notwithstanding subsection (b), a possessor of real property is subject to liability for physical injury or death to a child trespasser if:
1. (1) The possessor maintained a dangerous condition that was not a natural condition and the possessor knew or should have known the condition posed a risk of death or serious bodily harm to trespassing children;
2. (2) The possessor knew or should have known children were likely to trespass onto the property, either because they would be lured there by the dangerous condition or because children regularly use the property as a playground;
3. (3) The dangerous condition was not apparent, or children, because of their youth, would be unlikely to discover and comprehend the risk;
4. (4) The usefulness to the possessor of maintaining the dangerous condition and the burden of eliminating the danger were significantly outweighed by the risk of harm to children who would foreseeably trespass onto the property; and
5. (5) The possessor failed to use reasonable care to eliminate the danger or otherwise protect the children.
(d) This section shall not be construed to create or increase the liability of any possessor of real property or to affect any immunities from or defenses to liability established by another section of the code or available at common law to which a possessor of real property may be entitled.

§ 29-34-209. Immunity for forcible entry of a motor vehicle to remove minor or animal.

(a) A person whose conduct conforms to the requirements of subsection (b) shall be immune from civil liability for any damage resulting from the forcible entry of a motor vehicle for the purpose of removing a minor or an animal from the vehicle.
(b) Subsection (a) applies if the person:
1. (1) Determines the vehicle is locked or there is otherwise no reasonable method for the minor or animal to exit the vehicle;
2. (2) Has a good faith belief that forcible entry into the vehicle is necessary because the minor or animal is in imminent danger of suffering harm if not immediately removed from the vehicle and, based upon the circumstances known to the person at the time, the belief is a reasonable one;
3. (3) Has contacted either the local law enforcement agency, the fire department, or a 911 operator prior to forcibly entering the vehicle;
4. (4) Places a notice on the vehicle's windshield with the person's contact information, the reason the entry was made, the location of the minor or animal, and the fact that the authorities have been notified;
5. (5) Remains with the minor or animal in a safe location, out of the elements but reasonably close to the vehicle, until law enforcement, fire, or another emergency responder arrives; and
6. (6) Used no more force to enter the vehicle and remove the child or animal from the vehicle than was necessary under the circumstances.
(c) Nothing in this section shall affect the person's civil liability if the person attempts to render aid to the minor or animal in addition to what is authorized by this section.

§ 29-34-210. Protection of Volunteer-Insured Drivers of the Elderly (PROVIDE) Act.

(a) As used in this section:
1. (1) “Charitable organization” means any charitable unit of a religious or civic group exempt from taxation under 26 U.S.C. § 501, including those supported wholly or partially by private donations;
2. (2) “Human service agency” means any human service unit, clinic, senior citizens program, congregate meal center, or day care center for the elderly, whether supported wholly or partially by public funds;
3. (3) “Volunteer” means an individual providing volunteer transportation who may receive reimbursement for actual expenses or an allowance to defray expenses of operating the vehicle used to provide transportation services, but does not receive compensation for the person's time; and
4. (4) “Volunteer transportation” means motor vehicle transportation provided by a volunteer under the direction, sponsorship, or supervision of a human service agency or a charitable organization.
(b) Any volunteer, who provides volunteer transportation for senior citizens through a charitable organization or human service agency, shall not be individually liable for any civil damages above the policy limits collectable from any policy of insurance that would be obligated to make payment on behalf of the volunteer or on behalf of a person or entity that would be vicariously liable for the volunteer's conduct when liability for civil damages is limited by this section for an injury to the senior citizen arising out of or resulting from the transportation if the volunteer was acting in good faith and within the scope of the volunteer's official actions and duties on behalf of the charitable organization or human service agency, unless the volunteer's conduct constitutes gross negligence or willful and wanton misconduct; provided, that the charitable organization or human service agency is liable for damages and maintains liability insurance coverage at least equal to the minimum limits set forth in § 29-20-403 of the Tennessee Governmental Tort Liability Act.

§ 29-34-211. Liability for unlicensed psychotherapy treatment of mental health disorder — Exemptions.

(a) For the purposes of this section:
1. (1) “Mental health disorder” means a serious psychological condition, including, but not limited to, major depressive disorder, anxiety disorder, psychosis, bipolar disorder, personality disorder, and post-traumatic stress disorder, or any disorder found in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders; and
2. (2) “Psychotherapy” means an intervention for a mental health disorder by a licensed mental health professional.
(b)
1. (1) A consumer is entitled to care from a competently qualified person when receiving care for a mental health disorder.
2. (2) A license is required under title 63 for a person to competently treat a mental health disorder. An unlicensed person is not competent to provide services that fall within any scope of practice for which a license is required under title 63 for treatment of a mental health disorder, and such treatment is illegal.
(c)
1. (1) An unlicensed person may be civilly liable to the client if the unlicensed person knowingly offered psychotherapy services to treat a mental health disorder without being licensed as a mental health provider.
2. (2) The client may maintain an action to recover damages for the unlicensed psychotherapy treatment of a mental health disorder, including consideration paid to the unlicensed person, costs in recovering consideration paid, and reasonable attorney's fees as determined by the court.
(d) The following persons are exempt from this section:
1. (1) Clergy who are not being compensated on a fee-for-service basis;
2. (2) Students and practitioners in training when the student or practitioner is under the lawful supervision of a licensed healthcare professional;
3. (3) Persons holding a license under title 63 when acting within the lawful scope of practice;
4. (4) An unlicensed person operating under the supervision of a person holding a license under title 63, providing counseling or therapy services in a correctional facility;
5. (5) Any service provider at a homeless shelter, licensed behavioral health residential facility, hospital, or any state-operated agency or facility;
6. (6) State-contracted mobile crisis responders;
7. (7) An unlicensed person operating under the supervision of a person holding a license under title 63 providing counseling or therapy services in a community mental health center; and
8. (8) Any person providing peer counseling or social services not on a fee-for-service basis.
(e) This section does not expand or restrict the scope of practice for any person holding a license under title 63.

§ 29-34-212. No cause of action for wrongful birth or wrongful life.

(a) There is no cause of action for wrongful birth on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born.
(b) There is no cause of action for wrongful life on behalf of any person based on a claim that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.
(c) For the purposes of this section, a person is deemed to be conceived at the moment of fertilization, as that term is defined in § 39-15-213.

§ 29-34-213. Liability of charitable organizations.

(a) As used in this section:
1. (1) “Charitable organization” means a charitable unit of a religious or civic group that is exempt from taxation under 26 U.S.C. § 501, including those supported wholly or partially by private donations and registered with the secretary of state; and
2. (2) “Services” means:
  1. (A) Providing food;
  2. (B) Providing housing; or
  3. (C) Providing shelter from adverse weather, including, but not limited to, allowing persons to enter the premises for purposes of temporary shelter from severe storms.
(b) A charitable organization providing services to the community is not liable for a loss, damages, injury, or death that results from providing services, unless the charitable organization's conduct in providing services constitutes gross negligence or willful and wanton misconduct.

§ 29-34-214. Liability of adoption facilitator.

(a) For purposes of this part, “adoption facilitation claim” means any claim for damages, losses, indemnification, contribution, or other relief against an adoption facilitator arising out of, based on, or in any way related to the adoption or prospective adoption of a child.
(b) Adoptive parents or prospective adoptive parents who have provided compensation, whether directly or indirectly, to an adoption facilitator as defined in § 36-1-102, may bring a civil action alleging an adoption facilitation claim against such adoption facilitator who acted in violation of title 36, chapter 1, or title 71, chapter 3, part 5.
(c) A person who brings a successful claim for adoption facilitation under this section may recover:
1. (1) Compensatory damages, including, but not limited to, noneconomic damages, as defined in § 29-39-101(2);
2. (2) Punitive damages, as provided in § 29-39-104, if appropriate; and
3. (3) Liquidated damages of no less than twice the total amount paid to the adoption facilitator. Liquidated damages must be awarded on a per-child basis for each child who is adopted in violation of state law.
(d) A claim or judgment entered against an adoption facilitator under this section does not affect the finalization of a pending adoption and must not be used to set aside a final order of adoption.

1 Backlink

36-1-108(c)(2)

Part 3 Silica Claims Priorities Act

§ 29-34-301. Short title.

This part shall be known and may be cited as the “Silica Claims Priorities Act.”

§ 29-34-302. Legislative findings — Purpose.

(a) Silica is a naturally occurring mineral and is the second most common constituent of the earth's crust.
(b) Silica-related disease, including silicosis, can occur when silica is inhaled. To be inhaled, silica particles must be sufficiently small to be respirable.
(c) Silicosis was recognized as an occupational disease many years ago. The American Foundry Society has distributed literature to its members warning of the dangers of silica exposure for more than seventy (70) years. By the 1930s, the federal government had launched a silica awareness campaign that led to greater protection for workers exposed to silica dust.
(d) The legislature finds that the public interest requires giving priority to the claims of exposed individuals who are sick, in order to help preserve, now and for the future, access to our court system for those who develop silica-related disease and to safeguard the jobs, benefits, and savings of workers in Tennessee.
(e) It is the purpose of this part to:
1. (1) Give priority to silica claimants who can demonstrate actual physical impairment caused by exposure to silica;
2. (2) Fully preserve the rights of claimants who were exposed to silica to pursue compensation, should they become impaired in the future as a result of exposure;
3. (3) Enhance the ability of the judicial system to supervise and control silica litigation; and
4. (4) Provide access to the court system for those who are actually physically impaired by exposure to silica, while securing the right to similar access for those who may suffer physical impairment in the future.

§ 29-34-303. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “AMA guides to the evaluation of permanent impairment” means the most recent version of the American Medical Association's “Guidelines for Assessment of Permanent Medical Impairment” at the time of the performance of any examination or test required under this part;
2. (2) “Board-certified” means the medical doctor is currently certified by one of the medical specialty boards approved by either the American Board of Medical Specialties or the American Osteopathic Board of Osteopathic Specialties;
3. (3) “Board-certified in occupational medicine” means a medical doctor who is certified in the subspecialty of occupational medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine;
4. (4) “Board-certified oncologist” means a medical doctor who is certified in the subspecialty of medical oncology by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;
5. (5) “Board-certified pathologist” means a medical doctor who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology or the American Osteopathic Board of Internal Medicine;
6. (6) “Board-certified pulmonary specialist” means a medical doctor who is certified in the subspecialty of pulmonary medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;
7. (7) “Certified B-reader” means a person who has successfully completed the x-ray interpretation course sponsored by the national institute for occupational safety and health (NIOSH) and passed the B-reader certification examination for x-ray interpretation and whose NIOSH certification is current at the time of any readings required by this part;
8. (8)
  1. (A) “Civil action” means all suits or claims of a civil nature in a court of record, whether cognizable as cases at law or in equity or admiralty;
  2. (B) “Civil action” does not include a civil action:
    1. (i) Relating to any claim for workers compensation under title 50;
    2. (ii) Alleging any claim or demand made against a trust established pursuant to 11 U.S.C. § 524(g);
    3. (iii) Alleging any claim or demand made against a trust established pursuant to a plan of reorganization confirmed under the federal bankruptcy code; or
    4. (iv) Arising under the Federal Employers Liability Act pursuant to 45 U.S.C. § 51 et seq.;
9. (9)
  1. (A) “Competent medical authority” means a medical doctor who meets the following requirements:
    1. (i) The medical doctor is board-certified in occupational medicine, a board-certified oncologist, a board-certified pathologist, or a board-certified pulmonary specialist;
    2. (ii) The medical doctor is actually treating, or has treated, the exposed person and has or had a doctor-patient relationship with the exposed person, or in the case of a board-certified pathologist, has examined tissue samples of pathological slides of the exposed person at the request of a treating medical doctor;
    3. (iii) As the basis for the diagnosis, the medical doctor has not relied, in whole or in part, on the reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the exposed person’s medical condition:
      1. (a) In violation of any law, regulation, licensing requirement, or medical code of practice of the state in which that examination, test, or screening was conducted, with regard to the diagnosis set forth in the report required pursuant to § 29-34-305;
      2. (b) Outside the context of an existing doctor-patient relationship; or
      3. (c) That required the exposed person to agree to retain the services of a law firm or lawyer sponsoring the examination, test, or screening; and
    4. (iv) The medical doctor spends not more than twenty-five percent (25%) of the doctor's annual practice time in providing consulting or expert services in connection with prosecuting or defending actual or potential tort actions, and the medical doctor's medical group, professional corporation, clinic, or other affiliated group earns not more than twenty-five percent (25%) of its revenues from providing those services;
  2. (B) The requirements for determining “competent medical authority” set forth in subdivisions (9)(A)(ii)-(iv) may be waived by written agreement of all of the parties;
10. (10) “Exposed person” means a person whose exposure to silica or mixed dust is the basis for a silicosis claim or mixed dust disease claim under this part;
11. (11) “ILO scale” means the system for the classification of chest x-rays set forth in the International Labour Office's “Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses,” 2000 edition, or if amended, the version in effect at the time of the performance of any examination or test on the exposed person required under this part;
12. (12) “Lung cancer” means a malignant tumor in which the primary site of origin of the cancer is inside the lungs;
13. (13) “Mixed dust” means a mixture of dusts composed of silica and one (1) or more other fibrogenic dusts capable of inducing pulmonary fibrosis if inhaled in sufficient quantity;
14. (14) “Mixed dust disease claim” means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to inhalation of, exposure to, or contact with mixed dust. “Mixed dust disease claim” includes a claim made by or on behalf of any person who has been exposed to mixed dust, or any representative, spouse, parent, child, or other relative of that person, for injury, including mental or emotional injury, death, or loss to the person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to mixed dust;
15. (15) “Mixed dust pneumoconiosis” means the lung disease caused by the pulmonary response to inhaled mixed dusts, and does not mean silicosis and another pneumoconiosis, including, but not limited to, asbestosis;
16. (16) “Nonmalignant condition” means a condition, other than a diagnosed cancer, that is caused or may be caused by either silica or mixed dust, whichever is applicable;
17. (17) “Pathological evidence of mixed dust pneumoconiosis” means a statement by a board-certified pathologist that more than one (1) representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of peribronchiolar and parenchymal stellate, star-shaped, nodular scarring and that there is no other more likely explanation for the presence of the fibrosis;
18. (18) “Pathological evidence of silicosis” means a statement by a board-certified pathologist that more than one (1) representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of round silica nodules and birefringent crystals or other demonstration of crystal structures consistent with silica, consisting of well-organized concentric whorls of collagen surrounded by inflammatory cells, in the lung parenchyma and that there is no other more likely explanation for the presence of the fibrosis;
19. (19) “Physical impairment” means a condition of an exposed person as defined in § 29-34-304(a)(3), (b)(3), (b)(4), (c)(3) or (c)(4);
20. (20) “Premises owner” means a person who owns, in whole or in part, leases, rents, maintains, or controls privately owned lands, ways, or waters, or any buildings and structures on those lands, ways, or waters, and all privately owned and state-owned lands, ways, or waters leased to a private person, firm, or organization, including any buildings and structures on those lands, ways, or waters;
21. (21) “Radiological evidence of mixed dust pneumoconiosis” means an ILO quality chest x-ray read by a certified B-reader as showing bilateral rounded or irregular opacities in the upper lung fields graded at least 1/1 on the ILO scale;
22. (22) “Radiological evidence of silicosis” means an ILO quality chest x-ray read by a certified B-reader as showing either bilateral small rounded opacities (p, q, or r) occurring primarily in the upper lung fields graded at least 1/1 on the ILO scale or A, B, or C sized opacities representing complicated silicosis, also known as progressive massive fibrosis;
23. (23) “Silica” means a respirable crystalline form of the naturally occurring mineral form of silicon dioxide, including, but not limited to, quartz, cristobalite, and tridymite;
24. (24) “Silica claim” means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to inhalation of, exposure to, or contact with silica. “Silica claim” includes a claim made by or on behalf of any person who has been exposed to silica, or any representative, spouse, parent, child, or other relative of that person, for injury, including mental or emotional injury, death, or loss to the person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to silica;
25. (25) “Silicosis” means a lung disease caused by the pulmonary response to inhaled silica;
26. (26)
  1. (A) “Substantial contributing factor” means both of the following:
    1. (i) Exposure to silica or mixed dust is the predominate cause of the physical impairment alleged in the silica claim or mixed dust disease claim, whichever is applicable; and
    2. (ii) A competent medical authority has determined with a reasonable degree of medical certainty that without the silica or mixed dust exposures the physical impairment of the exposed person would not have occurred;
  2. (B) In determining whether exposure to silica or mixed dust was a substantial contributing factor in causing the plaintiff's injury or loss, the trier of fact in the action shall consider, but not be limited to, all of the following:
    1. (i) The manner in which the plaintiff was exposed;
    2. (ii) The proximity of silica or mixed dust to the plaintiff when the exposure occurred;
    3. (iii) The frequency and length of the plaintiff's exposure; and
    4. (iv) Any factors that mitigated or enhanced the plaintiff's exposure to silica or mixed dust;
27. (27) “Substantial occupational exposure to mixed dust” means employment for a cumulative period of at least five (5) years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following:
  1. (A) Handled mixed dust;
  2. (B) Fabricated mixed dust-containing products so that the person was exposed to mixed dust in the fabrication process;
  3. (C) Altered, repaired, or otherwise worked with a mixed dust-containing product in a manner that exposed the person on a regular basis to mixed dust; or
  4. (D) Worked in close proximity to other workers who experienced substantial occupational exposure to silica in a manner that exposed the person on a regular basis to mixed dust;
28. (28) “Substantial occupational exposure to silica” means employment for a cumulative period of at least five (5) years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following:
  1. (A) Handled silica;
  2. (B) Fabricated silica-containing products so that the person was exposed to silica in the fabrication process;
  3. (C) Altered, repaired, or otherwise worked with a silica-containing product in a manner that exposed the person on a regular basis to silica; or
  4. (D) Worked in close proximity to workers who experienced substantial occupational exposure to mixed dust in a manner that exposed the person on a regular basis to silica;
29. (29) “Veterans' benefit program” means any program for benefits in connection with military service under title 38 of the United States Code; and
30. (30) “Workers' compensation law” means title 50, chapter 6, and judicial decisions rendered under title 50, chapter 6.

§ 29-34-304. Prima facie showing of impairment or disease required — Compliance with standards in determining impairment — Exhumation not authorized.

(a) No person shall bring or maintain a civil action alleging a silica or mixed dust disease claim based on a nonmalignant condition in the absence of a prima facie showing that, in the opinion of a competent medical authority, the exposed person has a physical impairment, and that the person's exposure to silica or mixed dust is a substantial contributing factor to the physical impairment. The prima facie showing shall include:
1. (1) Evidence that a competent medical authority has taken from the exposed person a detailed medical history, which includes, to the extent necessary to render the opinion referred to in this subsection (a), the occupational and exposure history of the exposed person. If the exposed person is deceased, the occupational and exposure history of the exposed person shall be taken from the person or persons who are most knowledgeable about these areas of the exposed person's life;
2. (2) Evidence verifying that there has been a sufficient latency period in the context of the chronic, accelerated, or acute forms of the silicosis or mixed dust disease;
3. (3) A diagnosis by a competent medical authority, based on the detailed medical history, a medical examination, and pulmonary function testing, that both of the following apply to the exposed person:
  1. (A) The exposed person has a permanent respiratory impairment rating of at least Class 2, as defined by and evaluated pursuant to the AMA guides to the evaluation of permanent impairment; and
  2. (B) The exposed person has silicosis or mixed dust disease based at a minimum on radiological or pathological evidence of silicosis or radiological or pathological evidence of mixed dust disease; and
  1 Backlink
  - 29-34-303(19)
4. (4) Verification that the competent medical authority has concluded that exposure to silica or mixed dust was a substantial contributing factor to the exposed person's impairment. A diagnosis that states that the medical findings and impairment are consistent with or compatible with silica or mixed dust exposure does not meet the requirements of this subdivision (a)(4).
(b) No person shall bring or maintain a civil action alleging that silica or mixed dust caused that person to contract lung cancer in the absence of a prima facie showing that, in the opinion of a competent medical authority, the person has a primary lung cancer, and that the person's exposure to silica or mixed dust is a substantial contributing factor to the lung cancer. The prima facie showing shall include:
1. (1) Evidence that a competent medical authority has taken from the exposed person a detailed medical history, which includes, to the extent necessary to render the opinion referred to in this subsection (b), the occupational and exposure history of the exposed person. If the exposed person is deceased, the occupational and exposure history of the exposed person shall be taken from the person or persons who are most knowledgeable about these areas of the exposed person's life;
2. (2) Evidence sufficient to demonstrate that at least ten (10) years have elapsed from the date of the exposed person's first exposure to silica or mixed dust until the date of diagnosis of the exposed person's primary lung cancer;
3. (3) Radiological or pathological evidence of silicosis or of mixed dust disease;
4. (4) Evidence of the exposed person's substantial occupational exposure to silica or mixed dust; and
5. (5) Verification that the competent medical authority has concluded that exposure to silica or mixed dust was a substantial contributing factor to the exposed person's lung cancer. A diagnosis that states that the cancer is consistent with or compatible with silica or mixed dust exposure does not meet the requirements of this subdivision (b)(5).
(c) No person shall bring or maintain a civil action alleging a silica or mixed dust disease claim based on the wrongful death of an exposed person in the absence of a prima facie showing that, in the opinion of a competent medical authority, the death of the exposed person was the result of a physical impairment, and that the person's exposure to silica or mixed dust was a substantial contributing factor to the physical impairment causing the person's death. The prima facie showing shall include:
1. (1) Evidence that a competent medical authority has taken from the exposed person a detailed medical history, which includes, to the extent necessary to render the opinion referred to in this subsection (c), the occupational and exposure history of the exposed person. If the exposed person is deceased, the occupational and exposure history of the exposed person shall be taken from the person or persons who are most knowledgeable about these areas of the exposed person's life;
2. (2) Evidence sufficient to demonstrate that at least ten (10) years have elapsed from the date of the exposed person's first exposure to silica or mixed dust until the date of diagnosis of the exposed person's primary lung cancer or, if the death is not alleged to be cancer-related, evidence verifying that there has been a sufficient latency period in the context of the chronic, accelerated, or acute forms of the silicosis or mixed dust disease;
3. (3) Radiological or pathological evidence of silicosis or radiological or pathological evidence of mixed dust disease;
4. (4) Evidence of the exposed person's substantial occupational exposure to silica or mixed dust; and
5. (5) Verification that the competent medical authority has concluded that exposure to silica or mixed dust was a substantial contributing factor to the exposed person's death. A diagnosis that states that the medical findings, impairment, or lung cancer are consistent with or compatible with silica or mixed dust exposure does not meet the requirements of this subdivision (c)(5).
(d) Evidence relating to any physical impairment under this part, including pulmonary function testing and diffusing studies, shall comply with the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment incorporated in the AMA guides to the evaluation of permanent impairment and the official statements of the American Thoracic Society regarding lung function testing, including general considerations for lung function testing, standardization of spirometry, standardization of the measurement of lung volumes, standardization of the single-breath determination of carbon monoxide uptake in the lung, and interpretative strategies for lung testing in effect at the time of the performance of any examination or test on the exposed person required under this part.
(e) Nothing in this part shall be interpreted as authorizing the exhumation of bodies.

2 Backlinks

§ 29-34-305. Report of supporting evidence making out prima facie case — Dismissal without prejudice on the basis of minimum prima facie — Move to reinstate case — Effect of court's findings and decision on prima facie showing — Jury as trier of fact.

(a) The plaintiff in any civil action, alleging a silica claim or a mixed dust disease claim, shall file, within one hundred and twenty (120) days after filing the complaint, a written report by a competent medical authority, and any supporting evidence, making out the applicable prima facie case described in § 29-34-304. Any defendant shall have one hundred and twenty (120) days from the filing of the plaintiff's proffered prima facie evidence to challenge the adequacy of the proffered prima facie evidence for failure to comply with the minimum applicable requirements specified in § 29-34-304.
(b) If the court finds that no genuine issue of material fact exists with respect to plaintiff's failure to make out a prima facie case as described in § 29-34-304, the court shall dismiss the plaintiff's claim without prejudice as a matter of law. The court shall maintain its jurisdiction over any case that is so dismissed without prejudice. Any plaintiff whose case has been so dismissed without prejudice may move at any time to reinstate the plaintiff's case, upon a renewed prima facie showing that meets the applicable minimum requirements specified in § 29-34-304.
(c)
1. (1) The court's findings and decision on the prima facie showing shall not:
  1. (A) Result in any presumption at trial that the exposed person has a physical impairment that is caused by silica or mixed dust exposure;
  2. (B) Be conclusive as to the liability of any defendant in the case; or
  3. (C) Be admissible at trial.
2. (2) If the trier of fact is a jury:
  1. (A) The court shall not instruct the jury with respect to the court's findings or decision on the prima facie showing; and
  2. (B) Neither counsel for any party nor a witness shall inform the jurors or potential jurors of the prima facie showing.

1 Backlink

29-34-303(9)(A)(iii)(a)

§ 29-34-306. Limitations — Consolidation.

(a) Notwithstanding any other law, with respect to any silica claim or mixed dust disease claim that is not barred as of July 1, 2006, the period of limitations shall not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that the person has a physical impairment resulting from silica or mixed dust exposure.
(b) A court may consolidate for trial any number and type of silica or mixed dust disease claims only with the consent of all of the parties. In the absence of such consent, a court may consolidate for trial any claims relating to the exposed person and members of the person's household.

§ 29-34-307. Claims against premises owner — Presumptions.

The following shall apply to all civil actions for silica or mixed dust disease claims brought against a premises owner to recover damages or other relief for exposure to silica or mixed dust on the premises owner's property:
1. (1) A premises owner is not liable for any injury to any individual resulting from silica or mixed dust exposure, unless that individual's alleged exposure occurred while the individual was on the premises owner's property;
2. (2) If exposure to silica or mixed dust is alleged to have occurred after January 1, 1972, it is presumed that products containing silica or mixed dust used on the premises owner's property contained silica or mixed dust only at levels below safe levels of exposure. To rebut this presumption, the plaintiff must prove by a preponderance of the evidence that the levels of silica or mixed dust in the immediate breathing zone of the plaintiff regularly exceeded the threshold limit values adopted by this state; and
3. (3)
  1. (A) A premises owner is presumed to be not liable for any injury to any invitee who was engaged to work with, install, or remove products containing silica or mixed dust on the premises owner's property, if the invitee's employer held itself out as qualified to perform the work. To rebut this presumption, the plaintiff must demonstrate by a preponderance of the evidence that the premises owner had actual knowledge of the potential dangers of the products containing silica or mixed dust at the time of the alleged exposure that was superior to the knowledge of both the invitee and the invitee's employer;
  2. (B) A premises owner that hired a contractor before January 1, 1972, to perform the type of work at the premises owner's property that the contractor was qualified to perform shall not be liable for any injury to any individual resulting from silica or mixed dust exposure caused by any of the contractor's employees or agents on the premises owner's property, unless the premises owner directed the activity that resulted in the injury or approved the critical acts that led to the individual's injury;
  3. (C) If exposure to silica or mixed dust is alleged to have occurred after January 1, 1972, a premises owner is not liable for any injury to any individual resulting from that exposure caused by a contractor's employee or agent on the premises owner's property, unless the plaintiff establishes the premises owner's intentional violation of an established safety standard in effect at the time of the exposure, and that the alleged violation was in the plaintiff's immediate breathing zone and was the proximate cause of the plaintiff's injury.

§ 29-34-308. Claims arising in Tennessee — Severance of actions — Venue.

(a) No civil action alleging a silica claim or mixed dust disease claim may be filed in the courts of Tennessee after July 1, 2006, unless the plaintiff was a resident of Tennessee at the time the claim arose or the plaintiff's claim arose in Tennessee. For purposes of this part, a claim arises in Tennessee if the plaintiff was located in Tennessee at the time the plaintiff alleges to have been exposed to silica or mixed dust.
(b) To comply with this section in relation to an action that involves both claims that arose in this state and claims that arose outside this state, a court shall consider each claim individually and shall sever from the action the claims that are subject to this part.
(c) A civil action under this part may be filed only in the venue where the plaintiff resides, or was exposed to silica, mixed dust, or both, that was a substantial contributing factor to the physical impairment on which plaintiff's claim is based. If a plaintiff alleges that the plaintiff was exposed to silica, mixed dust, or both, in more than one (1) venue, the court shall determine, upon motion of any defendant found outside the venue in which the tort action is pending, which venue is the most appropriate forum for the claim, considering the relative amounts and lengths of the plaintiff's exposure to silica or mixed dust in each venue.

§ 29-34-309. Application.

This part shall apply to all civil actions that allege a silica or mixed dust disease claim that are filed on or after July 1, 2006.

Part 4 Operators of Ice Skating Rinks

§ 29-34-401. Part definitions.

For purposes of this part:
1. (1) “Ice skating rink” means a facility that is designed for ice skating and that is used by the public for recreational or competitive ice skating;
2. (2) “Operator” mean a person who owns, controls, or has operational responsibility for an ice skating facility, or the agent of that person; and
3. (3) “Spectator” means an individual who is present at an ice skating rink to observe ice skating.

§ 29-34-402. Limits on liability of operators — Assumption of risk by ice skaters and spectators.

(a) An operator shall not be liable for damage or injuries to an ice skater or spectator where the operator complies with the requirements of § 29-34-403.
(b) A person who participates as an ice skater at an ice skating rink operated in accordance with the requirements of § 29-34-403 assumes the risk of injury or damage that may occur as a result of that participation and shall comply with the requirements of § 29-34-404.
(c) A spectator at an ice skating rink operated in accordance with the requirements of § 29-34-403 assumes the risk of injury or damage that may occur as a result of being a spectator and shall comply with the requirements of § 29-34-404.

§ 29-34-403. Duties of operators.

(a) An operator shall:
1. (1) Provide at least one (1) individual to act as a rink monitor for approximately every two hundred (200) skaters at any given time that ice skating is open to the public;
2. (2) Conduct periodic inspections of the ice, skating equipment and all other equipment in a manner that will ensure a safe operating condition;
3. (3) Comply with all guidelines for ice skating rinks endorsed or recommended by the Ice Skating Institute;
4. (4) Post duties and expectations of skaters and spectators as prescribed by this chapter in conspicuous places;
5. (5) Maintain liability insurance coverage of at least one million dollars ($1,000,000) per single limit for personal injury death or property damage; and
6. (6) Maintain accurate records and daily logs for the ice skating facility.
(b) The rink monitor shall:
1. (1) Wear appropriate attire as to identify the individual as a rink monitor;
2. (2) Direct and supervise skaters and spectators;
3. (3) Watch for and remove in a timely manner any foreign objects that may have fallen off the ice surface; and
4. (4) Inspect and maintain, or request maintenance of, the ice surface, floors, railings, boards, and walls surrounding the surface in a manner that will ensure the good condition of those areas.

3 Backlinks

§ 29-34-404. Duties of ice skaters — Compliance with signs or warnings by spectators.

(a) Skaters in an ice skating rink shall:
1. (1) Comply with all posted signs and warnings that relate to the skater’s behavior while participating in ice skating at the ice skating rink;
2. (2) Obey all instructions or warnings given by the rink monitor, rink personnel or rink operator;
3. (3) Maintain reasonable control over skate speed and direction at all times;
4. (4) Be aware that there are other skaters and objects on the ice surface and take reasonable care to avoid collision with those skaters or objects; and
5. (5) Be aware that ability and skill levels of ice skaters vary and each individual must take reasonable care to ice skate within the individual’s personal abilities.
(b) Ice skaters shall not act in a manner that may cause injury or damage to others or their property.
(c) Spectators shall comply with each posted sign or warning that relates to the behavior of the spectator.

2 Backlinks

§ 29-34-405. No limits on liability between skaters and spectators or on operators who engage in gross negligence or willful and wanton conduct.

(a) This part shall not limit the liability of one (1) ice skater or spectator to another ice skater or spectator.
(b) This part shall not apply where an operator engages in behavior that amounts to gross negligence, or willful or wanton conduct.

Part 5 Successor Corporation Asbestos-Related Liability Fairness Act

§ 29-34-501. Short title.

This part shall be known and may be cited as the “Successor Corporation Asbestos-Related Liability Fairness Act.”

§ 29-34-502. Part definitions.

For purposes of this part:
1. (1) “Asbestos claim” means any claim, wherever or whenever made, for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos, including:
  1. (A) The health effects of exposure to asbestos, including a claim for personal injury or death, mental or emotional injury, risk of disease or other injury, or the costs of medical monitoring or surveillance;
  2. (B) Any claim made by or on behalf of any person exposed to asbestos, or a representative, spouse, parent, child or other relative of the person; and
  3. (C) Any claim for damage or loss caused by the installation, presence, or removal of asbestos;
2. (2) “Corporation” means a corporation for profit, including a domestic corporation organized under the laws of this state or a foreign corporation organized under laws other than the laws of this state;
3. (3) “Successor” means a corporation that assumes or incurs or has assumed or incurred successor asbestos-related liabilities that is a successor and became a successor before January 1, 1972, or is any of such successor corporation's successors;
4. (4)
  1. (A) “Successor asbestos-related liabilities” means any liabilities, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, that are related in any way to asbestos claims and were assumed or incurred by a corporation as a result of or in connection with a merger or consolidation, or the plan of merger or consolidation related to the merger or consolidation with or into another corporation, or that are related in any way to asbestos claims based on the exercise of control or the ownership of stock of the corporation before the merger or consolidation.
  2. (B) “Successor asbestos-related liabilities” includes liabilities that, after the time of the merger or consolidation for which the fair market value of total gross assets is determined under § 29-34-505, were or are paid or otherwise discharged, or committed to be paid or otherwise discharged, by or on behalf of the corporation, or a successor of the corporation, or by or on behalf of a transferor, in connection with settlements, judgments, or other discharges in this state or another jurisdiction; and
5. (5) “Transferor” means a corporation from which successor asbestos-related liabilities are or were assumed or incurred.

§ 29-34-503. Application of limitations.

(a) The limitations in § 29-34-504 shall apply to any successor corporation.
(b) The limitations of § 29-34-504 shall not apply to:
1. (1) Workers' compensation benefits paid by or on behalf of an employer to an employee under title 50, chapter 6, or a comparable workers' compensation law of another jurisdiction;
2. (2) Any claim against a corporation that does not constitute a successor asbestos-related liability;
3. (3) Any obligation under the National Labor Relations Act, compiled in 29 U.S.C. § 151 et seq., as amended or under any collective bargaining agreement; or
4. (4) A successor that, after a merger or consolidation, continued in the business of mining asbestos or in the business of selling or distributing asbestos fibers or in the business of manufacturing, distributing, removing, or installing asbestos-containing products which were the same or substantially the same as those products previously manufactured, distributed, removed, or installed by the transferor.

§ 29-34-504. Limitations on cumulative successor asbestos-related liabilities.

(a) Except as otherwise provided in subsection (b), the cumulative successor asbestos-related liabilities of a successor corporation are limited to the fair market value of the total gross assets of the transferor determined as of the time of the merger or consolidation. The successor corporation does not have responsibility for successor asbestos-related liabilities in excess of this limitation.
(b) If the transferor had assumed or incurred successor asbestos-related liabilities in connection with a prior merger or consolidation with a prior transferor, then the fair market value of the total assets of the prior transferor determined as of the time of the earlier merger or consolidation shall be substituted for the limitation set forth in subsection (a) for purposes of determining the limitation of liability of a successor corporation.

3 Backlinks

§ 29-34-505. Establishment of fair market value.

(a) A successor corporation may establish the fair market value of total gross assets for the purpose of the limitations under § 29-34-504 through generally accepted accounting principles, including:
1. (1) By reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arms-length transaction; or
2. (2) In the absence of other readily available information from which the fair market value can be determined, by reference to the value of the assets recorded on a balance sheet.
(b) For purposes of this section, total gross assets may include any intangible assets.
(c) To the extent total gross assets include any liability insurance that was issued to the transferor whose assets are being valued for purposes of this section, the applicability, terms, conditions and limits of such insurance shall not be affected by this section, nor shall this section otherwise affect the rights and obligations of an insurer, transferor or successor under any insurance contract or any related agreements, including, without limitation, preenactment settlements resolving coverage-related disputes, and the rights of an insurer to seek payment for applicable deductibles, retrospective premiums or self-insured retentions or to seek contribution from a successor for uninsured or self-insured periods or periods where insurance is uncollectible or otherwise unavailable. Without limiting the foregoing, to the extent total gross assets include any such liability insurance, a settlement of a dispute concerning any such liability insurance coverage entered into by a transferor or successor with the insurers of the transferor before July 1, 2013, shall be determinative of the total coverage of such liability insurance to be included in the calculation of the transferor's total gross assets.
1 Backlink
- 29-34-506(d)

1 Backlink

29-34-502(4)(B)

§ 29-34-506. Rate of annual increase of fair market value.

(a) Except as otherwise provided in this section, the fair market value of total gross assets at the time of the merger or consolidation shall increase annually at a rate equal to the sum of:
1. (1) The prime rate as listed in the first edition of the Wall Street Journal published for each calendar year since the merger or consolidation, unless the prime rate is not published in that edition of the Wall Street Journal, in which case any reasonable determination of the prime rate on the first day of the year may be used; and
2. (2) One percent (1%).
(b) The rate determined pursuant to subsection (a) shall not be compounded.
(c) The adjustment of the fair market value of total gross assets shall continue as provided in subsection (a) until the date the adjusted value is first exceeded by the cumulative amounts of successor asbestos-related liabilities paid or committed to be paid by or on behalf of the successor corporation or a predecessor or by or on behalf of a transferor after the time of the merger or consolidation for which the fair market value of total gross assets is determined.
(d) No adjustment of the fair market value of total gross assets shall be applied to any liability insurance that may be included in total gross assets pursuant to § 29-34-505(c).

§ 29-34-507. Liberal construction of part — Application of part.

(a) The courts of this state shall construe this part liberally with regard to successors.
(b) This part shall apply to all asbestos claims filed against a successor on or after July 1, 2013.
(c) This part shall also apply to any pending asbestos claims against a successor in which trial has not commenced as of July 1, 2013, except that any provisions of these sections which would be unconstitutional if applied retroactively shall be applied prospectively.

Part 6 Asbestos Bankruptcy Trust Claims Transparency Act

§ 29-34-601. Short title.

This part shall be known and may be cited as the “Asbestos Bankruptcy Trust Claims Transparency Act”.

§ 29-34-602. Part definitions.

As used in this part:
1. (1) “Asbestos” means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform amphibole minerals, and any of these minerals that have been chemically treated or altered, including all minerals defined as asbestos in 29 CFR 1910 at the time the asbestos action is filed;
2. (2) “Asbestos action” means a claim for damages or other civil or equitable relief presented in a civil action arising out of, based on or related to the health effects of exposure to asbestos, including loss of consortium, wrongful death, mental or emotional injury, risk or fear of disease or other injury, costs of medical monitoring or surveillance and any other derivative claim made by or on behalf of a person exposed to asbestos or a representative, spouse, parent, child, or other relative of that person. “Asbestos action” does not include a claim for compensatory benefits pursuant to workers' compensation law or for veterans' benefits;
3. (3) “Asbestos trust” means a government-approved or court-approved trust, qualified settlement fund, compensation fund, or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. § 524(g) or 11 U.S.C. § 1121(a) or other applicable provision of law, that is intended to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos;
4. (4) “Plaintiff” means a person asserting an asbestos action, a decedent if the action is brought through or on behalf of an estate, or a parent or guardian if the action is brought through or on behalf of a minor or an incompetent person;
5. (5) “Trust claims materials” means a final executed proof of claim and all other documents and information related to a claim against an asbestos trust, including claims forms and supplementary materials, affidavits, depositions and trial testimony, work history, medical and health records, documents reflecting the status of a claim against an asbestos trust, and if the asbestos trust claim has settled, all documents relating to the settlement of the asbestos trust claim;
6. (6) “Trust governance documents” means all documents that relate to eligibility and payment levels for an asbestos trust, including claims payment matrices, trust distribution procedures, or plans for reorganization;
7. (7) “Veterans' benefits” means a program for benefits in connection with military service administered by the veterans' administration under title 38 of the United States Code; and
8. (8) “Workers' compensation” means a program administered by the United States or a state to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases or injuries or for disability or death caused by occupational diseases or injuries. “Workers' compensation” includes the Longshore and Harbor Workers' Compensation Act (33 U.S.C. §§ 901 et seq.), and Federal Employees' Compensation Act (5 U.S.C. chapter 81). “Workers' compensation” does not include the Federal Employers' Liability Act of April 22, 1908 (45 U.S.C. §§ 51 et seq.).

5 Backlinks

§ 29-34-603. Required disclosures by plaintiff.

(a) For each asbestos action filed in this state, the plaintiff shall provide all parties with a sworn statement identifying all asbestos trust claims that have been filed by the plaintiff or by anyone on the plaintiff's behalf, including claims with respect to asbestos-related conditions other than those that are the basis for the asbestos action or that potentially could be filed by the plaintiff against an asbestos trust. The sworn statement shall be provided no later than one hundred twenty (120) days prior to the date set for trial for the asbestos action. For each asbestos trust claim or potential asbestos trust claim identified in the sworn statement, the statement shall include:
1. (1) The name, address, and contact information for the asbestos trust;
2. (2) The amount claimed or to be claimed by the plaintiff;
3. (3) The date the plaintiff filed the claim;
4. (4) The disposition of the claim;
5. (5) Whether there has been a request to defer, delay, suspend, or toll the claim; and
6. (6) An attestation from the plaintiff, under penalties of perjury, that the sworn statement is complete and is based on a good faith investigation of all potential claims against asbestos trusts.
(b) The plaintiff shall make available to all parties all trust claims materials for each asbestos trust claim that has been filed by the plaintiff or by anyone on the plaintiff's behalf against an asbestos trust, including any asbestos-related disease.
(c) The plaintiff shall supplement the information and materials provided pursuant to this section within ninety (90) days after the plaintiff:
1. (1) Files an additional asbestos trust claim;
2. (2) Supplements an existing asbestos trust claim; or
3. (3) Receives additional information or materials related to any claim or potential claim against an asbestos trust.
(d) Failure by the plaintiff to make available to all parties all trust claims materials as required by this part shall constitute grounds for the court to extend the trial date in an asbestos action.

2 Backlinks

§ 29-34-604. Discovery.

(a) Trust claims materials and trust governance documents are presumed to be relevant and authentic and are admissible in evidence. No claims of privilege apply to any trust claims materials or trust governance documents.
(b) A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege or confidentiality to bar discovery and shall provide consent or other expression of permission that may be required by the asbestos trust to release information and materials sought by a defendant.

§ 29-34-605. Stay of action.

(a) A court shall stay an asbestos action if the court finds that the plaintiff has failed to make the disclosures required under § 29-34-603 within one hundred twenty (120) days prior to the trial date.
(b) If, in the disclosures required by § 29-34-603, a plaintiff identifies a potential asbestos trust claim, the judge shall have the discretion to stay the asbestos action until the plaintiff files the asbestos trust claim and provides all parties with all trust claims materials for the claim. The plaintiff shall also state whether there has been a request to defer, delay, suspend, or toll the claim against the asbestos trust.

§ 29-34-606. Identification of additional or alternative asbestos trusts by defendant.

(a) Not less than ninety (90) days before trial, if a defendant identifies an asbestos trust claim not previously identified by the plaintiff that the defendant reasonably believes the plaintiff can file, the defendant shall meet and confer with the plaintiff to discuss why the defendant believes the plaintiff has an additional asbestos trust claim, and thereafter the defendant may move the court for an order to require the plaintiff to file the asbestos trust claim. The defendant shall produce or describe the documentation it possesses or is aware of in support of the motion.
(b) Within ten (10) days of receiving the defendant's motion pursuant to subsection (a), the plaintiff shall, for each asbestos trust claim identified by the defendant, make one (1) of the following responses:
1. (1) File the asbestos trust claim;
2. (2) File a written response with the court setting forth the reasons why there is insufficient evidence for the plaintiff to file the asbestos trust claim; or
3. (3) File a written response with the court requesting a determination that the plaintiff's expenses or attorney's fees and expenses to prepare and file the asbestos trust claim identified in the defendant's motion exceed the plaintiff's reasonably anticipated recovery from the trust.
(c)
1. (1) If the court determines that there is a sufficient basis for the plaintiff to file the asbestos trust claim identified by a defendant, the court shall order the plaintiff to file the asbestos trust claim and shall stay the asbestos action until the plaintiff files the asbestos trust claim and provides all parties with all trust claims materials no later than thirty (30) days before trial.
2. (2) If the court determines that the plaintiff's expenses or attorney's fees and expenses to prepare and file the asbestos trust claim identified in the defendant's motion exceed the plaintiff's reasonably anticipated recovery from the asbestos trust, the court shall stay the asbestos action until the plaintiff files with the court and provides all parties with a verified statement of the plaintiff's history of exposure, usage, or other connection to asbestos covered by the asbestos trust.
(d) Not less than thirty (30) days prior to trial in an asbestos action, the court shall enter into the record a trust claims document that identifies each claim the plaintiff has made against an asbestos trust.

§ 29-34-607. Admissible evidence.

(a) If a plaintiff proceeds to trial in an asbestos action before an asbestos trust claim is resolved, the filing of the asbestos trust claim may be considered as relevant and admissible evidence.
(b) Trust claim materials that are sufficient to entitle a claim to consideration for payment under the applicable trust governance documents may be sufficient to support a jury finding that the plaintiff may have been exposed to products for which the asbestos trust was established to provide compensation and that such exposure may be a substantial factor in causing the plaintiff's injury that is at issue in the asbestos action.

§ 29-34-608. Failure to provide information — Sanctions.

A plaintiff who fails to provide all of the information required under this part is subject to sanctions as provided in the Tennessee Rules of Civil Procedure and any other relief for the defendant, or defendants, that the court considers just and proper.

§ 29-34-609. Applicability of part.

This part shall apply to all asbestos actions that are filed on or after July 1, 2016.

Part 7 Asbestos Claims Priorities Act

§ 29-34-701. Short title.

This part shall be known and may be cited as the “Asbestos Claims Priorities Act”.

§ 29-34-702. Part definitions.

As used in this part:
1. (1) “AMA Guides to the Evaluation of Permanent Impairment” means the American Medical Association's Guides to the Evaluation of Permanent Impairment in effect at the time of the performance of any examination or test on the exposed person required under this part;
2. (2) “Asbestos” has the same meaning as defined in § 29-34-602;
3. (3) “Asbestos action” has the same meaning as defined in § 29-34-602;
4. (4) “Asbestosis” means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers;
5. (5) “Board-certified in internal medicine” means a physician who is certified by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine and whose certification was current at the time of the performance of any examination and rendition of any report required by this part;
6. (6) “Board-certified in occupational medicine” means a physician who is certified in the subspecialty of occupational medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine and whose certification was current at the time of the performance of any examination and rendition of any report required by this part;
7. (7) “Board-certified in pathology” means a physician who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology or the American Osteopathic Board of Pathology, whose certification was current at the time of the performance of an examination and rendition of a report required by this part, and whose professional practice is principally in the field of pathology and involves regular evaluation of pathology materials obtained from surgical or postmortem specimens;
8. (8) “Board-certified in pulmonary medicine” means a physician who is certified in the subspecialty of pulmonary medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine and whose certification was current at the time of the performance of an examination and rendition of a report required by this part;
9. (9) “Certified B-reader” means an individual who has qualified as a national institute for occupational safety and health (NIOSH) “final” or “B-reader” of x-rays under 42 CFR 37.51(b), whose certification was current at the time of any readings required under this part, and whose B-reads comply with the NIOSH B-Reader's Code of Ethics, Issues in Classification of Chest Radiographs, and Classification of Chest Radiographs in Contested Proceedings;
10. (10) “Chest x-ray” means chest films taken in accordance with all applicable state and federal regulatory standards and taken in the posterior-anterior view;
11. (11) “DLCO” means diffusing capacity of the lung for carbon monoxide, which is the measurement of carbon monoxide transfer from inspired gas to pulmonary capillary blood;
12. (12) “Exposed person” means a person whose exposure to asbestos or to asbestos-containing products is the basis for an asbestos action;
13. (13) “FEV1” means forced expiratory volume in the first second, which is the maximal volume of air expelled in one (1) second during performance of simple spirometric tests;
14. (14) “FEV1/FVC” means the ratio between the actual values for FEV1 over FVC;
15. (15) “Forced vital capacity” or “FVC” means the maximal volume of air expired with maximum effort from a position of full inspiration;
16. (16) “ILO system and ILO scale” mean the radiological ratings and system for the classification of chest x-rays of the International Labour Office provided in Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses in effect on the day any x-rays of the exposed person were reviewed by a certified B-reader;
17. (17) “Nonmalignant condition” means any condition that can be caused by asbestos other than a diagnosed cancer;
18. (18) “Official statements of the American Thoracic Society” means lung function testing standards set forth in statements from the American Thoracic Society, including standardizations of spirometry, standardizations of lung volume testing, standardizations of diffusion capacity testing or single-breath determination of carbon monoxide uptake in the lung, and interpretive strategies for lung function tests, which are in effect on the day of the pulmonary function testing of the exposed person;
19. (19) “Pathological evidence of asbestosis” means a statement by a board-certified pathologist that more than one (1) representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies graded 1(B) or higher under the criteria published in Asbestos-Associated Diseases, 106 Archive of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982), or grade one (1) or higher in pathology of asbestosis, 134 Archive of Pathology and Laboratory Medicine 462-80 (March 2010) (Tables 2 and 3), or as amended at the time of the exam, and there is no other more likely explanation for the presence of the fibrosis;
20. (20) “Plaintiff” has the same meaning as defined in § 29-34-602;
21. (21) “Plethysmography or body (box) plethysmography” means the test for determining lung volume in which the exposed person is enclosed in a chamber equipped to measure pressure, flow, or volume change;
22. (22) “Predicted lower limit of normal” means the test value that is the calculated standard convention lying at the fifth percentile, below the upper ninety-five percent (95%) of the reference population, based on age, height, and gender, according to the recommendations by the American Thoracic Society and as referenced in the applicable AMA Guides to the Evaluation of Permanent Impairment, primarily National Health and Nutrition Examination Survey (NHANES) predicted values, or as amended;
23. (23) “Pulmonary function test” means spirometry, lung volume testing, and diffusion capacity testing, including appropriate measurements, quality control data, and graphs, performed in accordance with the methods of calibration and techniques provided in the applicable AMA Guides to the Evaluation of Permanent Impairment and all standards provided in the official statements of the American Thoracic Society in effect on the day pulmonary function testing of the exposed person was conducted;
24. (24) “Qualified physician” means a board-certified internist, pathologist, pulmonary specialist, or specialist in occupational and environmental medicine, as may be appropriate to the actual diagnostic specialty in question, who:
  1. (A) Has conducted a physical examination of the exposed person and has taken or has directed to be taken under the physician's supervision, direction and control, a detailed occupational, exposure, medical, smoking, and social history from the exposed person, or the physician has reviewed the pathology material and has taken or has directed to be taken under the physician's supervision, direction and control, a detailed history from the person most knowledgeable about the information forming the basis of the asbestos action;
  2. (B) Spends no more than thirty-five percent (35%) of the physician's professional practice time in providing consulting or expert services in connection with actual or potential civil actions, and whose medical group, professional corporation, clinic, or other affiliated group earns not more than fifty percent (50%) of its revenues from providing such services;
    2 Backlinks
    
    29-34-708(a)(1)
    29-34-708(a)(3)
  3. (C) Does not require as a condition of diagnosing, examining, testing, screening, or treating the exposed person that legal services be retained by the exposed person or any other person pursuing an asbestos action based on the exposed person's exposure to asbestos;
  4. (D) Prepared or directly supervised the preparation and final review of any medical report under this part; and
  5. (E) Has not relied on any examinations, tests, radiographs, reports, or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, radiograph, or screening of the exposed person in violation of any law, regulation, licensing requirement, or medical code of practice of the state in which the examination, test, or screening was conducted;
25. (25) “Radiological evidence of asbestosis” means a quality 1 or 2 chest x-ray under the ILO system, showing bilateral small, irregular opacities (s, t, or u) occurring primarily in the lower lung zones graded by a certified B-reader as at least 1/0 on the ILO scale;
26. (26) “Radiological evidence of diffuse bilateral pleural thickening” means a quality 1 or 2 chest x-ray under the ILO system, showing diffuse bilateral pleural thickening of at least b2 on the ILO scale and blunting of at least one (1) costophrenic angle as classified by a certified B-reader;
27. (27) “Spirometry” means a test of air capacity of the lung through a spirometer to measure the volume of air inspired and expired;
28. (28) “Supporting test results” means copies of the following documents and images:
  1. (A) Pulmonary function tests, including printouts of the flow volume loops, volume time curves, DLCO graphs, lung volume tests and graphs, quality control data, and other pertinent data for all trials and all other elements required to demonstrate compliance with the equipment, quality, interpretation, and reporting standards set forth in this part;
  2. (B) B-reading and B-reader reports;
  3. (C) Reports of xray examinations;
  4. (D) Diagnostic imaging of the chest;
  5. (E) Pathology reports; and
  6. (F) All other tests reviewed by the diagnosing physician or a qualified physician in reaching the physician's conclusions;
29. (29) “Timed gas dilution” means a method for measuring total lung capacity in which the subject breathes into a spirometer containing a known concentration of an inert and insoluble gas for a specific time, and the concentration of that inert and insoluble gas in the lung is compared to the concentration of that type of gas in the spirometer;
30. (30) “Total lung capacity” means the volume of gas contained in the lungs at the end of a maximal inspiration;
31. (31) “Veterans' benefits” has the same meaning as defined in § 29-34-602; and
32. (32) “Workers' compensation” has the same meaning as defined in § 29-34-602.

§ 29-34-703. Medical report and diagnosis — Evidence requirements — Information form — Dismissal without prejudice.

(a) A plaintiff in an asbestos action alleging a nonmalignant condition shall file within ninety (90) days of filing the complaint or other initial pleading a detailed narrative medical report and diagnosis, signed by a qualified physician and accompanied by supporting test results, constituting prima facie evidence that the exposed person meets the requirements of this part. The report shall not be prepared by a lawyer or person working for or on behalf of a lawyer or law firm.
(b) A defendant in an asbestos action shall be afforded a reasonable opportunity before trial to challenge the adequacy of the prima facie evidence that the exposed person meets the requirements of this part. An asbestos action shall be dismissed without prejudice upon a finding that the exposed person has failed to make the prima facie showing required by this part.
(c) A plaintiff in an asbestos action, including an action alleging a nonmalignant condition or a malignant condition, filed on or after July 1, 2021, shall file, within thirty (30) days of filing any complaint, an information form attested by plaintiff stating the evidence that provides the basis for each claim against each defendant. The information form must include all of the following to the best of the plaintiff's ability:
1. (1) The name, address, date of birth, marital status, occupation, smoking history, current and past worksites, and current and past employers of the exposed person, and any person through which the exposed person alleges exposure;
2. (2) The plaintiff's relationship to the exposed person or the person through which the exposure is alleged;
3. (3) Each asbestos-containing product to which the person was exposed and each physical location at which the person was exposed to asbestos, or the other person was exposed if exposure was through another person;
4. (4) The specific location and manner of each exposure, including the specific location and manner of exposure for any person through which the exposed person alleges exposure, the beginning and ending dates of each exposure, the frequency of the exposure, and the identity of the manufacturer or seller of the specific asbestos product for each exposure;
5. (5) The specific asbestos-related disease claimed to exist; and
6. (6) Supporting documentation relating to subdivisions (c)(1)-(5) that is sufficient to establish the basis for each claim against each defendant.
(d) A plaintiff has a continuing duty to supplement the information that is required to be disclosed in this section.
(e) The court, on motion by a defendant, shall dismiss a plaintiff's asbestos claim without prejudice as to any defendant whose product or premises is not identified in the required disclosures set forth in subsection (c).
(f) The court, on motion by a defendant, shall dismiss a plaintiff's asbestos claim without prejudice as to all defendants if the plaintiff fails to comply with the requirements of subsection (c).
(g) Asbestos actions must be individually filed. No asbestos action filed on or after July 1, 2016, shall be permitted on behalf of a group or class of plaintiffs.

§ 29-34-704. Prerequisite of prima facie showing.

(a) No asbestos action related to an alleged nonmalignant asbestos-related condition may be brought or maintained in the absence of prima facie evidence that the exposed person has a physical impairment for which asbestos exposure was a substantial contributing factor. The plaintiff shall make a prima facie showing of claim for each defendant and include a detailed narrative medical report and diagnosis signed under oath by a qualified physician that includes all of the following:
1. (1) Radiological or pathological evidence of asbestosis or radiological evidence of diffuse bilateral pleural thickening or a high-resolution computed tomography scan showing evidence of asbestosis or diffuse pleural thickening;
2. (2) A detailed occupational and exposure history from the exposed person or, if that person is deceased, from the person most knowledgeable about the exposures that form the basis of the action, including identification of all of the exposed person's principal places of employment and exposures to airborne contaminants and whether each place of employment involved exposures to airborne contaminants, including asbestos fibers or other disease-causing dusts or fumes, that may cause pulmonary impairment and the nature, duration, and level of any exposure;
3. (3) A detailed medical, social, and smoking history from the exposed person or, if that person is deceased, from the person most knowledgeable, including a thorough review of the past and present medical problems of the exposed person and their most probable cause;
4. (4) Evidence verifying that at least fifteen (15) years have elapsed between the exposed person's date of first exposure to asbestos and the date of diagnosis;
5. (5) Evidence from a personal medical examination and pulmonary function testing of the exposed person or, if the exposed person is deceased, from the person's medical records, that the exposed person has or the deceased person had a permanent respiratory impairment rating of at least Class 2 as defined by and evaluated pursuant to the AMA's Guides to the Evaluation of Permanent Impairment or reported significant changes year to year in lung function for FVC, FEV1, or DLCO as defined by the American Thoracic Society's Interpretative Strategies for Lung Function Tests, 26 European Respiratory Journal 948-68, 961-62, Table 12 (2005) and as updated;
6. (6) Evidence that asbestosis or diffuse bilateral pleural thickening, rather than chronic obstructive pulmonary disease, is a substantial factor to the exposed person's physical impairment, based on a determination the exposed person has:
  1. (A) Forced vital capacity below the predicted lower limit of normal and FEV1/FVC ratio (using actual values) at or above the predicted lower limit of normal;
  2. (B) Total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal; or
  3. (C) A chest x-ray showing bilateral small, irregular opacities (s, t, or u) graded by a certified B-reader as at least 2/1 on the ILO scale; and
7. (7) The specific conclusion of the qualified physician signing the report that exposure to asbestos was a substantial contributing factor to the exposed person's physical impairment and not more probably the result of other causes. An opinion that the medical findings and impairment are consistent with or compatible with exposure to asbestos, or words to that effect, does not satisfy the requirements of this subdivision (a)(7).
(b) If the alleged nonmalignant asbestos-related condition is a result of an exposed person living with or having extended contact with another exposed person who, if the asbestos action had been filed by the other exposed person would have met the requirements of subdivision (a)(2), and the exposed person alleges extended contact with the other exposed person during the relevant time period, the detailed narrative medical report and diagnosis shall include all of the information required by subsection (a), except that the exposure history required under subdivision (a)(2) shall describe the exposed person's history of exposure to the other exposed person.

§ 29-34-705. Requirements for medical examinations and testing.

Evidence relating to physical impairment, including pulmonary function testing and diffusing studies, offered in any action governed by this part, shall:
1. (1) Comply with the quality controls, equipment requirements, methods of calibration and techniques set forth in the AMA's Guides to the Evaluation of Permanent Impairment and all standards set forth in the Official Statements of the American Thoracic Society that are in effect on the date of any examination or pulmonary function testing of the exposed person required by this part;
2. (2) Not be obtained or based on testing or examinations that violate any law, regulation, licensing requirement, or medical code of practice of the state in which the examination, test, or screening was conducted, or of this state; and
3. (3) Not be obtained under the condition that the plaintiff or exposed person retains the legal services of the attorney or law firm sponsoring the examination, test, or screening.

§ 29-34-706. Prima facie showing — Discovery — Consolidation of actions for trial.

(a) Evidence relating to the prima facie showings required under this part shall not create any presumption that the exposed person has an asbestos-related injury or impairment and shall not be conclusive as to the liability of any defendant.
(b) No evidence shall be offered at trial regarding, and the jury shall not be informed of:
1. (1) The grant or denial of a motion to dismiss an asbestos action under this part; or
2. (2) The provisions of this part with respect to what constitutes a prima facie showing of asbestos-related impairment.
(c) Until a court enters an order determining that the exposed person has established prima facie evidence of impairment, no asbestos action shall be subject to discovery, except discovery related to establishing or challenging the prima facie evidence or by order of the trial court upon motion of one (1) of the parties and for good cause shown.
(d)
1. (1) A court may consolidate for trial any number and type of asbestos actions with the consent of all the parties. In the absence of such consent, the court may consolidate for trial only asbestos actions relating to the exposed person and members of that person's household.
2. (2) No class action or any other form of mass aggregation relating to more than one (1) exposed person and members of that person's household shall be permitted.
3. (3) This subsection (d) does not preclude consolidation of cases by court order for pretrial or discovery purposes.

§ 29-34-707. Limitations period.

(a) With respect to an asbestos action not barred by limitations as of July 1, 2016, an exposed person's cause of action shall not accrue, nor shall the running of limitations commence, prior to the earlier of the date:
1. (1) The exposed person received a medical diagnosis of an asbestos-related impairment;
2. (2) The exposed person discovered facts that would have led a reasonable person to obtain a medical diagnosis with respect to the existence of an asbestos-related impairment; or
3. (3) The date of death of the exposed person having an asbestos-related impairment.
(b) Nothing in this section shall be construed to revive or extend limitations with respect to any claim for asbestos-related impairment that was otherwise time-barred on July 1, 2016.
(c) Nothing in this section shall be construed so as to adversely affect, impair, limit, modify, or nullify any settlement or other agreements with respect to an asbestos action entered into prior to July 1, 2016.
(d) An asbestos action arising out of a nonmalignant condition shall be a distinct cause of action from an action for an asbestos-related cancer. Notwithstanding any law of this state to the contrary, no damages shall be awarded for fear or increased risk of future disease in an asbestos action.

§ 29-34-708. Qualified physician for purposes of report — Findings required.

(a)
1. (1) The trial court, in its discretion, may allow a physician who meets the other requirements of this part but does not meet the time and revenue requirements under § 29-34-702(24)(B) to be considered a qualified physician and submit a report required by this part if the trial court makes an evidentiary finding, after all parties have had a reasonable opportunity to present evidence, that it would be manifestly unjust not to allow the physician at issue to submit the report.
2. (2) For subsection (a) to apply, the trial court also must make specific and detailed findings, setting forth the bases of such findings, that the physician's opinions appear to be reliable medical opinions in that they are supported by documented, reliable medical evidence obtained through testing or examinations that comply with and do not violate any applicable law, regulation, licensing requirement, or medical code of practice and that the opinions are not the product of bias or the result of financial influence due to the physician's role as a paid expert.
3. (3) The cost of retaining another physician who is qualified pursuant to § 29-34-702(24)(B) for the purpose of submitting a report required by this part shall not be considered in determining manifest injustice, but the availability or unavailability of other physicians who meet such time and revenue requirements shall be considered as a relevant factor.
(b) A physician who submits a report under this part may be an expert witness retained by counsel for the exposed person or claimant; provided, that the physician otherwise meets the requirements of this part, § 24-7-115, and the Tennessee Rules of Evidence governing the qualifications of expert witnesses.

§ 29-34-709. Applicability of part.

This part shall apply to all asbestos actions that are filed on or after July 1, 2016.

Part 8 [Repealed]

§ 29-34-801. [Repealed]

§ 29-34-802. [Repealed]

Chapter 35 Usurpation or Forfeiture of Office or Franchise — Corporate Misdeeds

§ 29-35-101. Grounds for action.

An action lies in the name of the state against the person or corporation offending, in the following cases:
1. (1) Whenever any person unlawfully holds or exercises any public office or franchise within this state, or any office in any corporation created by the laws of this state;
2. (2) Whenever any public officer has done, or suffered to be done, any act which works a forfeiture of that officer's office;
3. (3) When any person acts as a corporation within this state, without being authorized by law; or
4. (4) If, being incorporated, they:
  1. (A) Do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation;
  2. (B) Exercise powers not conferred by law; or
  3. (C) Fail to exercise powers conferred by law and essential to the corporate existence.

§ 29-35-102. Corporate officers — Trustees.

The action also lies against the directors, managers, and officers of a corporation, or the trustees of funds given for a public or charitable purpose:
1. (1) To bring them to an account for the management and disposition of property entrusted to their care;
2. (2) To remove such officers or trustees on proof of misconduct;
3. (3) To prevent malversation, peculation, and waste;
4. (4) To set aside and restrain improper alienations of such property or funds, and to secure them for the benefit of those interested; and
5. (5) Generally to compel faithful performance of duty.

§ 29-35-103. Attachment of corporate property after nonuse or assignment of franchise.

A corporation is not dissolved by the nonuse or assignment to others, in whole or in part, of its powers, franchises, and privileges, unless all the corporate property has been appropriated to the payment of its debts; and any creditor, for the creditor and other creditors, whether that creditor has recovered judgment or not, or any stockholder for that stockholder and other stockholders, may file a bill under this chapter, to attach the corporate property, and have such property applied to the payment of the debts of the corporation, and any surplus divided among the stockholders.

§ 29-35-104. Naming proper claimant to office — Adjudication of rights.

Whenever the action is brought against a person for usurping an office, in addition to the other allegations, the name of the person rightfully entitled to the office, with a statement of that person's right thereto, may be added, and the trial should, if practicable, determine the right of the contesting parties.

§ 29-35-105. Judgment for claimant to office.

If judgment is rendered in favor of such claimant, the court may order the defendant to deliver to the claimant, upon the claimant's qualifying as required by law, all books and papers belonging to the office in defendant's custody, or under defendant's control, and such claimant may thereupon proceed to exercise the functions of the office.

§ 29-35-106. Damages for usurpation of office.

Such claimant, on claimant's recovery of the office, may also, at any time within one (1) year thereafter, bring suit against the defendant, and recover the damages claimant has sustained by reason of the act of the defendant.

§ 29-35-107. Adjudication among several claimants to office.

When several persons claim to be entitled to the same office or franchise, they may be all made defendants, so as to determine their respective rights.

§ 29-35-108. Election contests.

The validity of any election which may be contested under this Code cannot be tried under this chapter.

§ 29-35-109. Officers entitled to bring suit.

The suit is brought by the attorney general for the district or county, when directed so to do by the general assembly, or by the governor and attorney general of the state concurring.

§ 29-35-110. Suit on relation of private individual.

(a) The suit is also brought on the information of any person, upon such person giving security for the costs of the proceedings, to be approved by the clerk of the court in which the bill is filed.
(b) When the suit is brought at the relation of a private individual, it shall be so stated in the bill and proceedings, and such individual is responsible for costs in case they are not adjudged against the defendant.

§ 29-35-111. Bill in equity — Venue.

The suit is brought by bill in equity, filed in either the circuit or chancery court of the county in which the office is usurped or held, or the corporation or supposed corporation holds its meetings or has its principal place of business.

§ 29-35-112. Contents of bill — Conduct of suit.

(a) The bill shall set forth briefly, and without technical forms, the grounds upon which the suit is instituted.
(b) The suit shall be conducted as other suits in equity.

§ 29-35-113. Extraordinary process.

The court is authorized, upon the filing of the bill, properly verified, in all proper cases, to grant attachments and injunctions, and appoint receivers to effect the ends of justice, and to make all such orders, rules, and decrees, according to the practice of a court of chancery, as may be necessary to accomplish the objects had in view.

§ 29-35-114. Answer — Evidence in criminal actions.

The defendants appear and answer the bill in the usual way, and such answer shall not be read against them in any criminal prosecution brought against them, or either of them.

§ 29-35-115. Issues of fact.

Such issues of fact as may become necessary to try by jury in the progress of the cause shall be made up under the direction of the court, and submitted to a jury impaneled forthwith.

§ 29-35-116. Judgment of exclusion from office or franchise.

When a defendant, whether a natural person or a corporation, is adjudged guilty of usurping, unlawfully holding, or exercising any office or franchise, judgment shall be rendered that such defendant be excluded from the office or franchise, and that defendant pay the costs.

§ 29-35-117. Judgment of dissolution — Escheat of corporate property.

If it be adjudged that a defendant corporation has by neglect, nonuse, abuse or surrender, forfeited its corporate rights, judgment will be rendered that the defendant be altogether excluded from such rights and be dissolved; and in the event the court shall find that the corporation, its stockholders, directors, officers or managers have intentionally impaired or depreciated its assets or property for the purpose of preventing the corporation from efficiently discharging its duty to the public, the property of the corporation shall escheat to the state unless its stockholders, directors, officers or managers, within a reasonable period fixed by the court, restore to the treasury of the corporation a sufficient amount of money or property to enable it to efficiently discharge its duty to the public; and also that the corporation, its directors, or managers, as the case may be, pay the costs.

§ 29-35-118. Receiver for corporation in dissolution.

Such judgment of dissolution shall not extinguish the debt due to or from the corporation; but the court shall appoint a receiver, with full power to take possession of all the debts and property, and sell, dispose of, collect, and distribute the same among the creditors and other persons interested, under the orders of the court.

§ 29-35-119. Costs paid by state.

If such action is at the suit of the state alone, and judgment is for the defendant, or the defendants are insolvent, the costs are to be paid as in other state cases.

§ 29-35-120. Death of relators.

(a) Should the sole relator die pending the action, the suit abates, unless by the second term thereafter it is revived in the name of some person who, on application, and giving security for costs, is substituted in the place of the deceased relator.
(b) If there are several relators, the suit abates only on the death of all.
(c) On the abatement of the action as above, judgment shall be rendered against the sureties of the relator for the costs.

§ 29-35-121. Appeal.

Either party is entitled to take the case to the proper appellate court as provided by the Tennessee Rules of Appellate Procedure.

Chapter 36 Waste And Trespass

§ 29-36-101. Waste by parol purchaser — Liability for rent.

Any person going into possession of land under a parol agreement to purchase, which agreement is subsequently avoided by the person, is liable for waste committed during the person's possession, as well as for reasonable rent.

§ 29-36-102. Trespass by railroad contractor.

Any railroad contractor the railroad contractor's agent or operatives, who wrongfully cuts down, appropriates, or otherwise injures or destroys any growing timber, or wood, or any fence rails, on ground not belonging to the railroad company, shall be liable in damages to the party injured.

§ 29-36-103. Defense of involuntary trespass.

It is a good plea to an action for trespass on land, that the defendant disclaims all title to the land, that the trespass was by negligence or involuntary, and that defendant tendered sufficient amount in satisfaction of the same before action brought.

§ 29-36-104. Death of owner of real property — Survival of right of action.

When any person entitled to sue for injuries to real property dies before commencing action, it shall be lawful for the personal representative of such party to sue and recover for the benefit of the deceased.

§ 29-36-105. Injunction against waste — Damages.

Nothing in this chapter shall deprive the person entitled to redress for waste, of the right to enjoin the commission thereof at any time, and recover damages for the waste actually committed.

Chapter 37 Equal Access to Justice

§ 29-37-101. Short title.

This chapter shall be known and may be cited as the “Equal Access to Justice Act of 1984.”

§ 29-37-102. Legislative intent.

There are occasions when inequities exist between government and small business in terms of the ability with which each is able, without economic hardship, to be properly represented in administrative proceedings and in the courts. As part of the general assembly's continuing efforts to assure fairness and equity to all the citizens of this state, it is the intent of this chapter to offer small business an opportunity for adequate representation in any administrative hearing involving the operation of such business and, where necessary, in the resulting appeal process.

§ 29-37-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:
1. (1) “Fees and other expenses” means those reasonable attorney's fees and expert witness fees as determined by the court plus reasonable expenses and court costs, but does not include any portion of an attorney's fees or salary paid by a unit of local, state, or federal government for the attorney's services in the case;
(2) “Local government” means an incorporated municipality or county or subdivision of either;
1. (3)
  1. (A) “Small business” means a business entity that is:
    1. (i) A natural person who is licensed by one (1) or more state agencies or boards and whose claim under this chapter arises from such licensing, but the person shall not have a net worth of more than three hundred thousand dollars ($300,000) at the time the civil action is filed;
    2. (ii) A sole proprietor of an unincorporated business that meets each of the following conditions:
      1. (a) Whose annual gross receipts do not exceed one million dollars ($1,000,000) during the twelve (12) months immediately preceding the date the civil action was filed; and
      2. (b) Who does not employ more than fifteen (15) persons on a full- time basis on the date the civil action was filed; or
    3. (iii) A partnership or corporation that meets each of the following conditions:
      1. (a) Whose annual gross receipts do not exceed two million dollars ($2,000,000) during the twelve (12) months immediately preceding the date the civil action was filed; and
      2. (b) Who does not employ more than thirty (30) persons on a full- time basis on the date the civil action was filed; and
2. (B) “Small business” also includes any neighborhood or homeowners' association which is an entity that:
  1. (i) Is not-for-profit;
  2. (ii) Is supported solely by contributions, membership fees assessed to residents of a defined geographical area and/or fund-raising activities sponsored by the association; and
  3. (iii) Does not employ more than ten (10) persons on a full-time basis on the date the civil action was filed; and
3. (4) “State agency” means any entity of the state as defined in § 4-5-102.

§ 29-37-104. Claims and awards for fees and expenses.

(a)
1. (1) Unless otherwise provided by law, the court having jurisdiction over the civil action brought by a state agency or over an action for judicial review brought pursuant to § 4-5-322, may award reasonable and actual fees and other expenses not to exceed ten thousand dollars ($10,000) to the prevailing party unless the prevailing party is a state agency.
2. (2)
  1. (A) Unless otherwise provided by law, the court having jurisdiction over the civil action brought by a local government or over an action for judicial review may award reasonable and actual fees and other expenses not to exceed ten thousand dollars ($10,000) to the prevailing party unless the prevailing party is a local government.
  2. (B) A small business that makes a claim against a local government for fees and expenses under this chapter that is not supported by substantial evidence or that is arbitrary or capricious or that is brought in bad faith for the purpose of harassment shall be subject to the procedures and sanctions of Tennessee Rules of Civil Procedure, Rule 11.
(b)
1. (1) The court may make an award pursuant to the terms of this chapter only if the small business has demonstrated by a preponderance of the evidence that the actions of the state agency were not supported by substantial evidence or were arbitrary and capricious or were brought in bad faith for the purpose of harassment. The court may, in its discretion, decline to make an award if it finds that special circumstances exist that would make an award unjust.
2. (2) The court may make an award pursuant to the terms of this chapter only if the small business has demonstrated by a preponderance of the evidence that the actions of the local government were arbitrary and capricious or were brought in bad faith for the purpose of harassment. The court may, in its discretion, decline to make an award if it finds that special circumstances exist that would make an award unjust.
(c)
1. (1) In a civil action commenced by a state agency or local government, a small business, in order to be eligible to make a claim for fees and other expenses under this chapter, must file a claim with the court within thirty (30) days after a final judgment has been rendered.
2. (2) In an action for judicial review brought in accordance with § 4-5-322 or an action for judicial review in a case in which a local government is a party, a small business must specifically state in the petition for review that it seeks fees and other expenses under this chapter. Failure to state shall bar the small business from making any claim under this chapter unless such a claim is filed subsequently with the court, in which event the small business shall be entitled to receive payment for fees or services actually rendered or expenses actually incurred after the notice of intent to make a claim is filed.
3. (3) All claims for fees and other expenses shall include, where applicable, an itemized statement for those fees including the actual time expended in representing a party and the rate at which the fees were computed, as well as invoices or statements showing the actual amount of other expenses incurred.
(d)
1. (1) Awards provided for in this chapter against a state agency shall, upon order of the court, be paid by the department of finance and administration from the general fund, except in the case of awards in cases involving the department of transportation, in which case the payment shall be made from the general highway fund.
2. (2) Awards provided for in this chapter against a local government shall, upon order of the court, be paid by the local government.
(e)
1. [Deleted by 2016 amendment.]

§ 29-37-105. Exceptions.

This chapter shall not apply to:
1. (1) Proceedings or actions involving the employment, discipline, or discharge of wages, hours and working conditions of employees;
2. (2) Proceedings or actions wherein the state or local government, through any of its departments, institutions or agencies is exercising its power of condemnation or eminent domain;
3. (3) Proceedings or actions involving the payment or collection of revenue if the court determines that:
  1. (A) The small business taxpayer has not exhausted the administrative remedies available to taxpayers to resolve disputed tax matters; or
  2. (B) The small business taxpayer has acted in bad faith with regard to attempts to ascertain tax liability or to collect a tax;
4. (4) Any action taken by the department of revenue pursuant to title 67, chapter 1, part 15;
5. (5) Actions taken during the time of a civil emergency; or
6. (6) The proceedings or actions required by a state or federal law or federal regulation.

§ 29-37-106. Bad faith or frivolous claims.

If the court finds that the small business' claim for fees and other expenses under this chapter was made in bad faith or was frivolous or was made for the sole basis of harassment, the court may impose a fine on the small business of not more than two thousand dollars ($2,000) which will go to the state agency or local government involved in the action.

Chapter 38 Drug Dealer Liability Act

§ 29-38-101. Short title.

This chapter shall be known and may be cited as the “Drug Dealer Liability Act.”

§ 29-38-102. Purpose.

The purpose of this chapter is to provide a civil remedy for damages to persons in a community injured as a result of illegal drug use. These persons include parents, employers, insurers, governmental entities, and others who pay for drug treatment or employee assistance programs, as well as infants injured as a result of exposure to drugs in utero, referred to in this chapter as “drug babies.” The chapter will enable injured persons to recover damages from those persons in the community who have joined the illegal drug market. A further purpose of the chapter is to shift, to the extent possible, the cost of the damage caused by the existence of the illegal drug market in a community to those who illegally profit from that market. The further purpose of the chapter is to establish the prospect of substantial monetary loss as a deterrent to those who have not yet entered into the illegal drug distribution market. The further purpose is to establish an incentive for drug users to identify and seek payment for their own drug treatment from those dealers who have sold drugs to the user in the past.

§ 29-38-103. Legislative findings.

The legislature finds and declares all of the following:
1. (1) Every community in the country is affected by the marketing and distribution of illegal drugs. A vast amount of state and local resources is expended in coping with the financial, physical, and emotional toll that results from the existence of the illegal drug market. Families, employers, insurers, and society in general bear the substantial costs of coping with the marketing of illegal drugs. Drug babies and parents, particularly those of adolescent illegal drug users, suffer significant noneconomic injury, as well;
2. (2) Although the criminal justice system is an important weapon against the illegal drug market, the civil justice system can and must also be used. The civil justice system can provide an avenue of compensation for those who have suffered harm as a result of the marketing and distribution of illegal drugs. The persons who have joined the illegal drug market should bear the cost of the harm caused by that market in the community;
3. (3) The threat of liability under this chapter serves as an additional deterrent to a recognizable segment of the illegal drug network. A person who has nondrug related assets, who markets illegal drugs at the workplace, who encourages friends to become users, among others, is likely to decide that the added cost of entering the market is not worth the benefit. This is particularly true for a first-time casual dealer who has not yet made substantial profits. This chapter provides a mechanism for the cost of the injury caused by illegal drug use to be borne by those who benefit from illegal drug dealing;
4. (4) This chapter imposes liability against all participants in the illegal drug market, including small dealers, particularly those in the workplace, who are not usually the focus of criminal investigations. The small dealers increase the number of users and are those people who become large dealers. These small dealers are most likely to be deterred by the threat of liability;
5. (5) A parent of an adolescent illegal drug user often expends considerable financial resources, typically in the tens of thousands of dollars, for the child's drug treatment. Local and state governments provide drug treatment and related medical services made necessary by the distribution of illegal drugs. The treatment of drug babies is a considerable cost to local and state governments. Insurers pay large sums for medical treatment related to drug addiction and use. Employers suffer losses as a result of illegal drug use by employees due to lost productivity, employee drug-related workplace accidents, and employer contributions to insurers. Local and state governments have existing legal staffs that can bring civil suits against those involved in the illegal drug market, in appropriate cases, if a clear legal mechanism for liability and recovery is established;
6. (6) Drug babies, who are clearly the most innocent and vulnerable of those affected by illegal drug use, are often the most physically and mentally damaged due to the existence of an illegal drug market in a community. For many of these babies, the only hope is extensive medical and psychological treatment, physical therapy, and special education. All of these potential remedies are expensive. These babies, through their legal guardians and through court appointed guardians ad litem, should be able to recover damages from those in the community who have entered and participated in the marketing of the types of illegal drugs that have caused their injuries;
7. (7) In theory, civil actions for damages for distribution of illegal drugs can be brought under existing law. They are not. Several barriers account for this. Under existing tort law, only those dealers in the actual chain of distribution to a particular user could be sued. Drug babies, parents of adolescent illegal drug users, and insurers are not likely to be able to identify the chain of distribution to a particular user. Furthermore, drug treatment experts largely agree that users are unlikely to identify and bring suit against their own dealers, even after they have recovered, given the present requirements for a civil action;
8. (8) Those involved in the illegal drug market in a community are necessarily interrelated and interdependent, even if their identity is unknown to one another. Each new dealer obtains the benefit of the existing illegal drug distribution system to make illegal drugs available to the dealer. In addition, the existing market aids a new entrant by the prior development of people as users. Many experts on the illegal drug market agree that all participants are ultimately likely to be indirectly related. That is, beginning with any one dealer, given the theoretical ability to identify every person known by that dealer to be involved in illegal drug trafficking, and in turn each of such others known to the dealer, and so on, the illegal drug market in a community would ultimately be fully revealed;
9. (9) Market liability has been created with respect to legitimate products by judicial decision in some states. Case law provides for civil recovery by plaintiffs who are unable to identify the particular manufacturer of the product that is claimed to have caused them harm, allowing recovery from all manufacturers of the product who participated in that particular market. The market liability theory has been shown to be destructive of market initiative and product development when applied to legitimate markets. Because of its potential for undermining markets, this chapter expressly adopts a legislatively crafted form of liability for those who intentionally join the illegal drug market. The liability established by this chapter grows out of, but is distinct from, existing judicially crafted market liability;
10. (10) The prospect of a future suit for the costs of drug treatment may drive a wedge between prospective dealers and their customers, by encouraging users to turn on their dealers. Therefore, liability for those costs, even to the user, is imposed under this chapter, as long as the user identifies and brings suit against the user's own dealers;
11. (11) Allowing dealers who face a civil judgment for their illegal drug marketing to bring suit against their own sources for contribution may also drive a wedge into the relationships among some participants in the illegal drug distribution network;
12. (12) While not all persons who have suffered losses as a result of the marketing of illegal drugs will pursue an action for damages, at least some individuals, guardians of drug babies, government agencies that provide treatment, insurance companies, and employers will find such an action worthwhile. These persons deserve the opportunity to recover their losses. Some new entrants to retail drug dealing are likely to be deterred, even if only a few of these suits are actually brought.

§ 29-38-104. Chapter definitions.

As used in this chapter, unless the context otherwise requires:
1. (1) “Illegal drug” means a drug, the distribution of which is a violation of state law;
2. (2) “Illegal drug market” means the support system of illegal drug related operations, from production to retail sales, through which an illegal drug reaches the user;
3. (3) “Illegal drug market target community” is the area described under § 29-38-109;
4. (4) “Individual drug user” means the individual whose illegal drug use is the basis of an action brought under this chapter;
5. (5) “Level 1 offense” means possession of one fourth ounce (¼ oz.) or more, but less than four ounces (4 oz.), or distribution of less than one ounce (1 oz.) of a specified illegal drug; or possession of one pound (1 lb.) or twenty-five (25) plants or more, but less than four pounds (4 lbs.) or fifty (50) plants, or distribution of less than one pound (1 lb.), of marijuana;
6. (6) “Level 2 offense” means possession of four ounces (4 oz.) or more, but less than eight ounces (8 oz.), or distribution of one ounce (1 oz.) or more, but less than two ounces (2 oz.), of a specified illegal drug; or possession of four pounds (4 lbs.) or more or fifty (50) plants or more, but less than eight pounds (8 lbs.) or seventy-five (75) plants, or distribution of more than one pound (1 lb.), but less than five pounds (5 lbs.), of marijuana;
7. (7) “Level 3 offense” means possession of eight ounces (8 oz.) or more, but less than sixteen ounces (16 oz.), or distribution of two ounces (2 oz.) or more, but less than four ounces (4 oz.), of a specified illegal drug; or possession of eight pounds (8 lbs.) or more or seventy-five (75) plants or more, but less than sixteen pounds (16 lbs.) or one hundred (100) plants or more, or distribution of more than five pounds (5 lbs.), but less than ten pounds (10 lbs.), of marijuana;
8. (8) “Level 4 offense” means possession of sixteen ounces (16 oz.) or more or distribution of four ounces (4 oz.) or more of a specified illegal drug; or possession of sixteen pounds (16 lbs.) or more or one hundred (100) plants or more, or distribution of ten pounds (10 lbs.) or more, of marijuana;
9. (9) “Participate in the illegal drug market” means to distribute, possess with an intent to distribute, commit an act intended to facilitate the marketing or distribution of, or agree to distribute, possess with an intent to distribute, or commit an act intended to facilitate the marketing or distribution of an illegal drug. “Participate in the illegal drug market” does not include the purchase or receipt of an illegal drug for personal use only;
10. (10) “Period of illegal drug use” means, in relation to the individual user, the time of the individual's first use of an illegal drug to the accrual of the cause of action. The period of illegal drug use is presumed to commence two (2) years before the cause of action accrues, unless the defendant proves otherwise by clear and convincing evidence;
11. (11) “Person” means an individual, governmental entity, corporation, firm, trust, partnership, or incorporated or unincorporated association, existing under or authorized by the laws of this state, another state, or foreign country;
12. (12) “Place of illegal drug activity” means, in relation to the individual drug user, each state house of representatives legislative district in which the individual possesses or uses an illegal drug, or in which the individual resides, attends school, or is employed during the period of the individual's illegal drug use, unless the defendant proves otherwise by clear and convincing evidence;
13. (13) “Place of participation” means, in relation to a defendant in an action brought under this chapter, each state house of representatives legislative district in which the person participates in the illegal drug market, or in which the person resides, attends school, or is employed during the period of the person's participation in the illegal market; and
14. (14) “Specified illegal drug” means cocaine, heroin, or methamphetamine, or any other drug the distribution of which is a violation of state law.

§ 29-38-105. Liability for participation in the illegal drug market — Exception for law enforcement in official investigations.

(a) A person who knowingly participates in the illegal drug market within this state is liable for civil damages as provided in this chapter. A person may recover damages under this chapter for injury resulting from an individual's use of an illegal drug.
(b) A law enforcement officer or agency, the state, or a person acting at the direction of a law enforcement officer or agency or the state, is not liable for participating in the illegal drug market, if the participation is in furtherance of an official investigation.

§ 29-38-106. Persons allowed to bring an action for damages — Persons against whom damages may be sought — What damages may be sought.

(a) One (1) or more of the following persons may bring an action for damages caused by an individual's use of an illegal drug:
1. (1) A parent, legal guardian, child, spouse, or sibling of the individual drug user;
2. (2) An individual who was exposed to an illegal drug in utero;
3. (3) An employer of the individual drug user;
4. (4) A medical facility, insurer, governmental entity, employer, or other entity that funds a drug treatment program or employee assistance program for the individual drug user, or that otherwise expended money on behalf of the individual drug user; or
5. (5) A person injured as a result of the willful, reckless, or negligent actions of an individual drug user.
(b) A person entitled to bring an action under this section may seek damages from one (1) or more of the following:
1. (1) A person who knowingly distributed, or knowingly participated in the chain of distribution of, an illegal drug that was actually used by the individual drug user;
2. (2) A person who knowingly participated in the illegal drug market, if:
  1. (A) The place of illegal drug activity by the individual drug user is within the illegal drug market target community of the defendant;
  2. (B) The defendant's participation in the illegal drug market was connected with the same type of illegal drug used by the individual drug user; and
  3. (C) The defendant participated in the illegal drug market at any time during the individual drug user's period of illegal drug use.
(c) A person entitled to bring an action under this section may recover all of the following damages:
1. (1) Economic damages, including, but not limited to, the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the illegal drug use;
2. (2) Noneconomic damages, including, but not limited to, physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services and consortium, and other nonpecuniary losses proximately caused by an individual's use of an illegal drug;
3. (3) Exemplary damages;
4. (4) Reasonable attorney fees; and
5. (5) Costs of suit, including, but not limited to, reasonable expenses for expert testimony.

§ 29-38-107. Actions by individual drug users — Actions against distributors — What damages may be sought.

(a) An individual drug user shall not bring an action for damages caused by the use of an illegal drug, except as otherwise provided in this subsection (a). An individual drug user may bring an action for damages caused by the use of an illegal drug only if all of the following conditions are met:
1. (1) The individual personally discloses to narcotics enforcement authorities, more than six (6) months before filing the action, all of the information known to the individual regarding all that individual's sources of illegal drugs;
2. (2) The individual has not used an illegal drug within the six (6) months prior to filing the action; and
3. (3) The individual continues to remain free of the use of an illegal drug throughout the pendency of the action.
(b) A person entitled to bring an action under this section may seek damages only from a person who distributed, or is in the chain of distribution of, an illegal drug that was actually used by the individual drug user.
(c) A person entitled to bring an action under this section may recover only the following damages:
1. (1) Economic damages, including, but not limited to, the cost of treatment, rehabilitation, and medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, accidents or injury, and any other pecuniary loss proximately caused by the person's illegal drug use;
2. (2) Reasonable attorney fees; and
3. (3) Costs of suit, including, but not limited to, reasonable expenses for expert testimony.

§ 29-38-108. Third-party payment on behalf of an insured prohibited.

A third party shall not pay damages awarded under this chapter, or provide a defense or money for a defense, on behalf of an insured under a contract of insurance or indemnification.

§ 29-38-109. Target communities for different offense levels.

A person whose participation in the illegal drug market constitutes the following level offense shall be considered to have the following illegal drug market target community:
1. (1) For a Level 1 offense, the state house of representatives legislative district in which the defendant's place of participation is situated;
2. (2) For a Level 2 offense, the target community described in subdivision (1), plus all state house of representatives legislative districts with a border contiguous to that target community;
3. (3) For a Level 3 offense, the target community described in subdivision (2), plus all state house of representatives legislative districts with a border contiguous to that target community; and
4. (4) For a Level 4 offense, the state.

1 Backlink

29-38-104(3)

§ 29-38-110. Joinder.

(a) Two (2) or more persons may join in one (1) action under this chapter as plaintiffs, if their respective actions have at least one (1) place of illegal drug activity in common, and if any portion of the period of illegal drug use overlaps with the period of illegal drug use for every other plaintiff.
(b) Two (2) or more persons may be joined in one (1) action under this chapter as defendants, if those persons are liable to at least one (1) plaintiff.
(c) A plaintiff need not be interested in obtaining, and a defendant need not be interested in defending against, all the relief demanded. Judgment may be given for one (1) or more plaintiffs, according to their respective rights to relief, and against one (1) or more defendants, according to their respective liabilities.

§ 29-38-111. Comparative fault.

(a) An action by an individual drug user is governed by the principles of comparative fault. Comparative fault attributed to the plaintiff does not bar recovery, but diminishes the award of compensatory damages proportionally, according to the measure of fault attributed to the plaintiff.
(b) The burden of proving the comparative fault of the plaintiff is on the defendant, which shall be shown by clear and convincing evidence.
(c) Comparative fault shall not be attributed to a plaintiff that is not an individual drug user.

§ 29-38-112. Right of action for contribution.

A person subject to liability under this chapter has a right of action for contribution against another person subject to liability under this chapter. Contribution may be enforced either in the original action, or by a separate action brought for that purpose. A plaintiff may seek recovery in accordance with this chapter and existing law against a person whom a defendant has asserted a right of contribution.

§ 29-38-113. Burden of proof — Estoppel of persons convicted under drug laws to deny participation in illegal drug market — Lack of criminal drug conviction no bar to action.

(a) Proof of participation in the illegal drug market in an action brought under this chapter shall be shown by clear and convincing evidence. Except as otherwise provided in this chapter, other elements of the cause of action shall be shown by a preponderance of the evidence.
(b) A person against whom recovery is sought, who has a criminal conviction pursuant to state drug laws or the Comprehensive Drug Abuse Prevention and Control Act of 1970, Public Law 91-513, 84 Stat. 1236, codified at 21 U.S.C. § 801 et seq., is estopped from denying participation in the illegal drug market. Such a conviction is also prima facie evidence of the person's participation in the illegal drug market during the two (2) years preceding the date of an act giving rise to a conviction.
(c) The absence of a criminal drug conviction of a person against whom recovery is sought does not bar an action against that person.

§ 29-38-114. Ex parte prejudgment attachment order — Exemption of property from process — Forfeiture.

(a) A plaintiff under this chapter, subject to subsection (c), may request an ex parte prejudgment attachment order from the court, against all assets of a defendant, sufficient to satisfy a potential award. If attachment is instituted, a defendant is entitled to an immediate hearing. Attachment may be lifted if the defendant demonstrates that the assets will be available for a potential award, or if the defendant posts a bond sufficient to cover a potential award.
(b) A person against whom a judgment has been rendered under this chapter is not eligible to exempt any property, of whatever kind, from process to levy or process to execute on the judgment.
(c) Any assets sought to satisfy a judgment under this chapter, that are named in a forfeiture action or that have been seized for forfeiture by any state or federal agency, may not be used to satisfy a judgment, unless and until the assets have been released following the conclusion of the forfeiture action or released by the agency that seized the assets.

§ 29-38-115. Limitation of actions.

(a) Except as otherwise provided in this section, a claim under this chapter shall not be brought more than two (2) years after the cause of action accrues. A cause of action accrues under this chapter when a person who may recover has reason to know of the harm from illegal drug use that is the basis for the cause of action and has reason to know that the illegal drug use is the cause of the harm.
(b) For a plaintiff, the statute of limitations under this chapter is tolled while the individual potential plaintiff is incapacitated by the use of an illegal drug to the extent that the individual cannot reasonably be expected to seek recovery under this chapter, or as otherwise provided by law. For a defendant, the statute of limitations under this chapter is tolled until six (6) months after the individual potential defendant is convicted of a criminal drug offense, or as otherwise provided by law.
(c) The statute of limitations under this chapter for a claim based on participation in the illegal drug market that occurred prior to July 1, 2005, does not begin to run until July 1, 2005.

§ 29-38-116. Representation by prosecuting attorney — Motion for stay of action during drug investigation or prosecution.

(a) A prosecuting attorney may represent the state or a political subdivision of the state in an action brought under this chapter.
(b) On motion by a governmental agency involved in a drug investigation or prosecution, an action brought under this chapter shall be stayed until the completion of the criminal investigation or prosecution that gave rise to the motion for a stay of the action.

Chapter 39 Compensation for Economic and Noneconomic Damages

§ 29-39-101. Chapter definitions.

When used in this chapter, the following words, shall have the meanings set forth below, unless the context clearly requires otherwise:
1. (1) “Economic damages” means damages, to the extent they are provided by applicable law, for: objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, mental health treatment, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, repair or replacement of property, obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses;
2. (2) “Noneconomic damages” means damages, to the extent they are provided by applicable law, for: physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; noneconomic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; and all other nonpecuniary losses of any kind or nature.
  1 Backlink
  - 29-34-214(c)(1)

§ 29-39-102. Civil damage awards.

(a) In a civil action, each injured plaintiff may be awarded:
1. (1) Compensation for economic damages suffered by each injured plaintiff; and
2. (2) Compensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts or omissions that allegedly caused the injuries or death.
(b) If multiple defendants are found liable under the principle of comparative fault, the amount of all noneconomic damages, not to exceed seven hundred fifty thousand dollars ($750,000) for each injured plaintiff, shall be apportioned among the defendants based upon the percentage of fault for each defendant, so long as the plaintiff's comparative fault (or in a wrongful death action, the fault of the decedent) is not equal to or greater than fifty percent (50%), in which case recovery for any damages is barred.
(c) If an injury or loss is catastrophic in nature, as defined in subsection (d), the seven-hundred-fifty-thousand-dollar amount limiting noneconomic damages, as set forth in subdivision (a)(2) and subsection (b) is increased to, but the amount of damages awarded as noneconomic damages shall not exceed, one million dollars ($1,000,000).
(d) “Catastrophic loss or injury” means one (1) or more of the following:
1. (1) Spinal cord injury resulting in paraplegia or quadriplegia;
2. (2) Amputation of two (2) hands, two (2) feet or one (1) of each;
3. (3) Third degree burns over forty percent (40%) or more of the body as a whole or third degree burns up to forty percent (40%) percent or more of the face; or
4. (4) Wrongful death of a parent leaving a surviving minor child or children for whom the deceased parent had lawful rights of custody or visitation.
1 Backlink
- 29-39-103(b)
(e) All noneconomic damages awarded to each injured plaintiff, including damages for pain and suffering, as well as any claims of a spouse or children for loss of consortium or any derivative claim for noneconomic damages, shall not exceed in the aggregate a total of seven hundred fifty thousand dollars ($750,000), unless subsection (c) applies, in which case the aggregate amount shall not exceed one million dollars ($1,000,000).
(f) If there is a disputed issue of fact, the trier of fact, by special verdict, shall determine the existence of a catastrophic loss or injury as defined in subsection (d).
(g) The limitation on the amount of noneconomic damages imposed by subdivision (a)(2) and subsections (b)-(e) shall not be disclosed to the jury, but shall be applied by the court to any award of noneconomic damages.
(h) The limitation on the amount of noneconomic damages imposed by subdivision (a)(2) and subsections (b)-(e) shall not apply to personal injury and wrongful death actions:
1. (1) If the defendant had a specific intent to inflict serious physical injury, and the defendant's intentional conduct did, in fact, injure the plaintiff;
2. (2) If the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue; provided, however, that this subsection (h) does not apply to the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course of business or in compliance with the defendant's document retention policy or state or federal regulations;
3. (3) If the defendant was under the influence of alcohol, drugs or any other intoxicant or stimulant, resulting the defendant's judgment being substantially impaired, and causing the injuries or death. For purposes of this subsection (h), a defendant shall not be deemed to be under the influence of drugs or any other intoxicant or stimulant, if the defendant was using lawfully prescribed drugs administered in accordance with a prescription or over-the-counter drugs in accordance with the written instructions of the manufacturer; or
4. (4) If the defendant's act or omission results in the defendant being convicted of a felony under the laws of this state, another state, or under federal law, and that act or omission caused the damages or injuries.
(i) If there is a dispute of fact, the trier of fact, by special verdict, shall determine whether the exceptions set forth in subsection (h) apply to the defendant and the cause of action.
(j) The liability of a defendant for noneconomic damages whose liability is alleged to be vicarious shall be determined separately from that of any alleged agent, employee or representative.
(k) Noneconomic damages are not permitted for any claim arising out of harm or loss of property, except as authorized by statute.
(l) No provision in this part shall apply to claims against this state to the extent that such provision is inconsistent with or conflicts with the Tennessee Claims Commission Act, compiled in title 9, chapter 8, part 3. In addition, no provision in this part shall apply to claims against a governmental entity or its employees to the extent that such provision is inconsistent with or conflicts with the Governmental Tort Liability Act, compiled in chapter 20 of this title.
(m) Nothing in this chapter shall be construed to create or enhance any claim, right of action, civil liability, economic damage or noneconomic damage under Tennessee law.
(n) The limitations on noneconomic damages in this section shall apply to restrict such recoveries in all civil actions notwithstanding conflicting statutes or common law.

1 Backlink

39-13-811(a)

§ 29-39-103. Findings by trier of fact.

(a) If liability is found in a civil action, then the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:
1. (1) Any past damages for each of the following types of damages:
  1. (A) Medical and other costs of health care;
  2. (B) Other economic damages; and
  3. (C) Noneconomic damages; and
2. (2) Any future damages and the periods over which they will accrue for each of the following types of damages:
  1. (A) Medical and other costs of health care;
  2. (B) Other economic damages; and
  3. (C) Noneconomic damages.
(b) If the plaintiff claims a catastrophic loss or injury has occurred, and if there is a disputed issue of fact regarding whether such loss or injury has occurred, the trier of fact must make a specific finding of fact, by special verdict, that the loss or injury suffered by the plaintiff is catastrophic as defined in § 29-39-102(d).
(c) The calculation of all future medical care and other costs of health care and future noneconomic losses must reflect the costs and losses during the period of time the claimant will sustain those costs and losses. The calculation for other economic loss must be based on the losses during the period of time the claimant would have lived but for the injury upon which the claim is based. All such calculations of future losses shall be adjusted to reflect net present value.

§ 29-39-104. Punitive damages.

(a) In a civil action in which punitive damages are sought:
1. (1) Punitive damages may only be awarded if the claimant proves by clear and convincing evidence that the defendant against whom punitive damages are sought acted maliciously, intentionally, fraudulently or recklessly;
2. (2) In an action in which the claimant seeks an award of punitive damages, the trier of fact in a bifurcated proceeding shall first determine whether compensatory damages are to be awarded and in what amount and by special verdict whether each defendant's conduct was malicious, intentional, fraudulent or reckless and whether subdivision (a)(7) applies;
3. (3) If a jury finds that the defendant engaged in malicious, intentional, fraudulent, or reckless conduct, then the court shall promptly commence an evidentiary hearing in which the jury shall determine the amount of punitive damages, if any;
4. (4) In all cases involving an award of punitive damages, the trier of fact, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the defendant's financial condition and net worth; the nature and reprehensibility of the defendant's wrongdoing; the impact of the defendant's conduct on the plaintiff; the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to conceal such misconduct; the expense plaintiff has borne in attempts to recover the losses; whether the defendant profited from the activity, and if defendant did profit, whether the punitive award should be in excess of the profit in order to deter similar future behavior; whether, and the extent to which, defendant has been subjected to previous punitive damage awards based upon the same wrongful act; whether, once the misconduct became known to defendant, defendant took remedial action or attempted to make amends by offering a prompt and fair settlement for actual harm caused; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole;
5. (5) Punitive or exemplary damages shall not exceed an amount equal to the greater of:
  1. (A) Two (2) times the total amount of compensatory damages awarded; or
  2. (B) Five hundred thousand dollars ($500,000);
6. (6) The limitation on the amount of punitive damages imposed by subdivision (a)(5) shall not be disclosed to the jury, but shall be applied by the court to any punitive damages verdict;
7. (7) The limitation on the amount of punitive damages imposed by subdivision (a)(5) shall not apply to actions brought for damages or an injury:
  1. (A) If the defendant had a specific intent to inflict serious physical injury, and the defendant's intentional conduct did, in fact, injure the plaintiff;
  2. (B) If the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue; provided, however, that this subsection (a) does not apply to the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course of business or in compliance with the defendant's document retention policy or state or federal regulations;
  3. (C) If the defendant was under the influence of alcohol, drugs or any other intoxicant or stimulant, resulting in the defendant's judgment being substantially impaired, and causing the injuries or death. For purposes of this subsection (a), a defendant shall not be deemed to be under the influence of drugs or any other intoxicant or stimulant, if the defendant was using lawfully prescribed drugs administered in accordance with a prescription or over-the-counter drugs in accordance with the written instructions of the manufacturer; or
  4. (D) If the defendant's act or omission results in the defendant being convicted of a felony under the laws of this state, another state, or under federal law, and that act or omission caused the damages or injuries;
8. (8) If there is a disputed issue of fact, the trier of fact, by special verdict, shall determine whether the exceptions set forth in subdivision (a)(7) apply to the defendant and the cause of action;
9. (9) The culpability of a defendant for punitive damages whose liability is alleged to be vicarious shall be determined separately from that of any alleged agent, employee or representative.
(b) Nothing in this section shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur when appropriate.
(c) The seller of a product other than the manufacturer shall not be liable for punitive damages, unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or the seller had actual knowledge of the defective condition of the product at the time the seller supplied the same.
(d)
1. (1) Except as provided in subdivision (d)(2), punitive damages shall not be awarded in a civil action involving a drug or device if the drug or device which allegedly caused the claimant's harm:
  1. (A) Was manufactured and labeled in relevant and material respects in accordance with the terms of an approval or license issued by the federal food and drug administration under the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, compiled in 21 U.S.C. §§ 301-392, as amended, or the Public Health Service Act, 53 Stat. 682, compiled in 42 U.S.C. §§ 201-300cc-15; or
  2. (B) Was an over-the-counter drug or device marketed pursuant to federal regulations, was generally recognized as safe and effective and as not being misbranded pursuant to the applicable federal regulations, and satisfied in relevant and material respects each of the conditions contained in the applicable regulations and each of the conditions contained in an applicable monograph.
2. (2) Subdivision (d)(1) shall not apply in an action against a manufacturer of a drug or device, if, at any time before the event alleged to have caused the harm, the manufacturer, in violation of applicable regulations of the food and drug administration:
  1. (A) Withheld from the food and drug administration information known to be material and relevant to the harm that the claimant allegedly suffered; or
  2. (B) Misrepresented to the food and drug administration information of that type.
3. (3) For purposes this subsection (d):
  1. (A) “Device” has the same meaning as in the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 1041, codified in 21 U.S.C. § 321(h);
  2. (B) “Drug” has the same meaning as in the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 1041, codified in 21 U.S.C. § 321(g)(1).
(e) Punitive damages shall not be awarded in any civil action when a defendant demonstrates by a preponderance of the evidence that it was in substantial compliance with applicable federal and state regulations setting forth specific standards applicable to the activity in question and intended to protect a class of persons or entities that includes the plaintiff, if those regulations were in effect at the time the activity occurred.
(f) Nothing contained in this chapter shall be construed to limit a court's authority to enter judgment as a matter of law prior to or during a trial on a claim for punitive damages.
(g)
1. (1) Notwithstanding subdivision (a)(9), punitive damages may be awarded against a defendant based on vicarious liability for the acts or omissions of an agent or employee only if the finder of fact determines by special verdict based on clear and convincing evidence that one or more of the following has occurred:
  1. (A) The act or omission was committed by a person employed in a management capacity while that person was acting within the scope of employment;
  2. (B) The defendant was reckless in hiring, retaining, supervising or training the agent or employee and that recklessness was the proximate cause of the act or omission that caused the loss or injury; or
  3. (C) The defendant authorized, ratified or approved the act or omission with knowledge or conscious or reckless disregard that the act or omission may result in the loss or injury.
2. (2) Nothing in this subsection (g) shall be construed to expand or increase the scope of vicarious liability or punitive damages liability under Tennessee law.
3. (3) For purposes of this subsection (g), “a person employed in a management capacity” means an employee with authority to set policy and exercise control, discretion, and independent judgment over a significant scope of the employer's business.

3 Backlinks

Chapter 40 Uniform Commercial Real Estate Receivership Act

§ 29-40-101. Short title.

This chapter shall be known and may be cited as the “Uniform Commercial Real Estate Receivership Act.”

§ 29-40-102. Chapter definitions.

As used in this chapter:
1. (1) “Affiliate” means:
  1. (A) With respect to an individual:
    1. (i) A companion of the individual;
    2. (ii) A lineal ancestor or descendant, whether by blood or adoption, of:
      1. (a) The individual; or
      2. (b) A companion of the individual;
    3. (iii) A companion of an ancestor or descendant described in subdivision (1)(A)(ii);
    4. (iv) A sibling, aunt, uncle, great aunt, great uncle, first cousin, niece, nephew, grandniece, or grandnephew of the individual, whether related by the whole or the half blood or adoption, or a companion of any of them; or
    5. (v) Any other individual occupying the residence of the individual; and
  2. (B) With respect to a person other than an individual:
    1. (i) Another person that directly or indirectly controls, is controlled by, or is under common control with the person;
    2. (ii) An officer, director, manager, member, partner, employee, or trustee or other fiduciary of the person; or
    3. (iii) A companion of, or an individual occupying the residence of, an individual described in subdivision (1)(B)(i) or (1)(B)(ii);
2. (2) “Companion” means:
  1. (A) The spouse of an individual;
  2. (B) The domestic partner of an individual; or
  3. (C) Another individual in a civil union with an individual;
3. (3) “Court” means a chancery court in this state;
4. (4) “Executory contract” means a contract, including a lease, under which each party has an unperformed obligation and the failure of a party to complete performance would constitute a material breach;
5. (5) “Governmental unit” means an office, department, division, bureau, board, commission, or other agency of this state or a subdivision of this state;
6. (6) “Lien” means an interest in property that secures payment or performance of an obligation;
7. (7) “Mortgage” means a record, however denominated, that creates or provides for a consensual lien on real property or rents, even if the mortgage also creates or provides for a lien on personal property;
8. (8) “Mortgagee” means a person entitled to enforce an obligation secured by a mortgage;
9. (9) “Mortgagor” means a person that grants a mortgage or a successor in ownership of the real property described in the mortgage;
10. (10) “Owner” means the person for whose property a receiver is appointed;
11. (11) “Person” means an individual; estate; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity;
12. (12) “Proceeds” means the following property:
  1. (A) Whatever is acquired on the sale, lease, license, exchange, or other disposition of receivership property;
  2. (B) Whatever is collected on, or distributed on account of, receivership property;
  3. (C) Rights arising out of receivership property;
  4. (D) To the extent of the value of receivership property, claims arising out of the loss, nonconformity, or interference with the use of, defects or infringement of rights in, or damage to the property; or
  5. (E) To the extent of the value of receivership property and to the extent payable to the owner or mortgagee, insurance payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage to the property;
13. (13) “Property” means all of a person's right, title, and interest, both legal and equitable, in real and personal property, tangible and intangible, wherever located and however acquired. “Property” includes proceeds, products, offspring, rents, or profits of or from the property;
14. (14) “Receiver” means a person appointed by the court as the court's agent, and subject to the court's direction, to take possession of, manage, and, if authorized by this chapter or court order, transfer, sell, lease, license, exchange, collect, or otherwise dispose of receivership property;
15. (15) “Receivership” means a proceeding in which a receiver is appointed;
16. (16) “Receivership property” means the property of an owner which is described in the order appointing a receiver or a subsequent order. “Receivership property” includes any proceeds, products, offspring, rents, or profits of or from the property;
17. (17) “Record”, used as a noun, means information that is inscribed on a tangible medium or that is stored on an electronic or other medium and is retrievable in perceivable form;
18. (18) “Rents” means:
  1. (A) Sums payable for the right to possess or occupy, or for the actual possession or occupation of, real property of another person;
  2. (B) Sums payable to a mortgagor under a policy of rental-interruption insurance covering real property;
  3. (C) Claims arising out of a default in the payment of sums payable for the right to possess or occupy real property of another person;
  4. (D) Sums payable to terminate an agreement to possess or occupy real property of another person;
  5. (E) Sums payable to a mortgagor for payment or reimbursement of expenses incurred in owning, operating, and maintaining real property or constructing or installing improvements on real property; or
  6. (F) Other sums payable under an agreement relating to the real property of another person that constitute rents under the law of this state, other than this chapter;
19. (19) “Secured obligation” means an obligation the payment or performance of which is secured by a security agreement;
20. (20) “Security agreement” means an agreement that creates or provides for a lien;
21. (21) “Sign” means, with present intent to authenticate or adopt a record:
  1. (A) To execute or adopt a tangible symbol; or
  2. (B) To attach to or logically associate with the record an electronic sound, symbol, or process; and
22. (22) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

§ 29-40-103. Notice and opportunity for hearing.

1. (a) Except as otherwise provided in subsection (b), the court may issue an order under this chapter only after notice and opportunity for a hearing, as appropriate in the circumstances.
2. (b) The court may issue an order under this chapter:
  1. (1) Without prior notice if the circumstances require issuance of an order before notice is given;
  2. (2) After notice and without a prior hearing if the circumstances require issuance of an order before a hearing is held; or
  3. (3) After notice and without a hearing if no interested party timely requests a hearing.

§ 29-40-104. Scope — Exclusions.

(a) Except as otherwise provided in subsection (b) or (c), this chapter applies to a receivership for an interest in real property and any personal property related to or used in operating the real property.
(b) This chapter does not apply to a receivership for an interest in real property improved by one (1) to four (4) dwelling units unless:
1. (1) The interest is used for agricultural, commercial, industrial, or mineral-extraction purposes, other than incidental uses by an owner occupying the property as the owner's primary residence;
2. (2) The interest secures an obligation incurred at a time when the property was used or planned for use for agricultural, commercial, industrial, or mineral-extraction purposes;
3. (3) The owner planned or is planning to develop the property into one (1) or more dwelling units to be sold or leased in the ordinary course of the owner's business; or
4. (4) The owner is collecting or has the right to collect rents or other income from the property from a person other than an affiliate of the owner.
(c) This chapter does not apply to a receivership authorized by the law of this state, other than this chapter, in which the receiver is a governmental unit or an individual acting in an official capacity on behalf of the governmental unit.
(d) This chapter does not limit the authority of a court to appoint a receiver under other state law.
(e) Unless displaced by a particular provision of this chapter, the principles of law and equity supplement this chapter.

§ 29-40-105. Power of court.

The court that appoints a receiver under this chapter has exclusive jurisdiction to direct the receiver and determine any controversy related to the receivership or receivership property.

§ 29-40-106. Appointment of receiver.

(a) The court may appoint a receiver:
1. (1) Before judgment, to protect a party that demonstrates an apparent right, title, or interest in real property that is the subject of the action, if the property or the property's revenue-producing potential:
  1. (A) Is being subjected to or is in danger of waste, loss, dissipation, or impairment; or
  2. (B) Has been or is about to be the subject of a voidable transaction;
  1 Backlink
  - 29-40-121(b)(2)
2. (2) After judgment:
  1. (A) To carry the judgment into effect; or
  2. (B) To preserve nonexempt real property pending appeal or when an execution has been returned unsatisfied and the owner refuses to apply the property in satisfaction of the judgment;
3. (3) In an action in which a receiver for real property may be appointed on equitable grounds; or
4. (4) During the time allowed for redemption, to preserve real property sold in an execution or foreclosure sale and secure the property's rents to the person entitled to the property's rents.
(b) In connection with the foreclosure or other enforcement of a mortgage, a mortgagee is entitled to appointment of a receiver for the mortgaged property if:
1. (1) Appointment is necessary to protect the property from waste, loss, transfer, dissipation, or impairment;
2. (2) The mortgagor agreed in a signed record to appointment of a receiver on default;
3. (3) The owner agreed, after default and in a signed record, to appointment of a receiver;
4. (4) The property and any other collateral held by the mortgagee are not sufficient to satisfy the secured obligation;
5. (5) The owner fails to turn over to the mortgagee proceeds or rents the mortgagee was entitled to collect; or
6. (6) The holder of a subordinate lien obtains appointment of a receiver for the property.
(c) The court may condition appointment of a receiver without prior notice under § 29-40-103(b)(1) or without a prior hearing under § 29-40-103(b)(2) on the giving of security by the person seeking the appointment for the payment of damages, reasonable attorney's fees, and costs incurred or suffered by any person if the court later concludes that the appointment was not justified. If the court later concludes that the appointment was justified, the court shall release the security.

§ 29-40-107. Disqualification from appointment as receiver — Disclosure of interest.

(a) The court may not appoint a person as receiver unless the person submits to the court a statement under penalty of perjury that the person is not disqualified.
(b) Except as otherwise provided in subsection (c), a person is disqualified from appointment as receiver if the person:
1. (1) Is an affiliate of a party;
2. (2) Has an interest materially adverse to an interest of a party;
3. (3) Has a material financial interest in the outcome of the action, other than compensation the court may allow the receiver;
4. (4) Has a debtor-creditor relationship with a party; or
5. (5) Holds an equity interest in a party, other than a noncontrolling interest in a publicly-traded company.
(c) A person is not disqualified from appointment as receiver solely because the person:
1. (1) Was appointed receiver or is owed compensation in an unrelated matter involving a party or was engaged by a party in a matter unrelated to the receivership;
2. (2) Is an individual obligated to a party on a debt that is not in default and was incurred primarily for personal, family, or household purposes; or
3. (3) Maintains with a party a deposit account as defined in § 47-9-102(a).
(d) A person seeking appointment of a receiver may nominate a person to serve as receiver, but the court is not bound by the nomination.

2 Backlinks

§ 29-40-108. Receiver's bond — Alternative security.

(a) Except as otherwise provided in subsection (b), a receiver shall post with the court a bond that:
1. (1) Is conditioned on the faithful discharge of the receiver's duties;
2. (2) Has one (1) or more sureties approved by the court;
3. (3) Is in an amount the court specifies; and
4. (4) Is effective as of the date of the receiver's appointment.
(b) The court may approve the posting by a receiver with the court of alternative security, such as a letter of credit or deposit of funds. The receiver may not use receivership property as alternative security. Interest that accrues on deposited funds must be paid to the receiver on the receiver's discharge.
(c) The court may authorize a receiver to act before the receiver posts the bond or alternative security required by this section.
(d) A claim against a receiver's bond or alternative security must be made not later than one (1) year after the date the receiver is discharged.

§ 29-40-109. Status of receiver as lien creditor.

On appointment of a receiver, the receiver has the status of a lien creditor under:
1. (1) The Uniform Commercial Code — Secured Transactions, compiled in title 47, chapter 9, as to receivership property that is personal property or fixtures; and
2. (2) Title 66, as to receivership property that is real property.

§ 29-40-110. Security agreement covering after-acquired property.

Except as otherwise provided by the law of this state, other than this chapter, property that a receiver or owner acquires after appointment of the receiver is subject to a security agreement entered into before the appointment to the same extent as if the court had not appointed the receiver.

§ 29-40-111. Collection and turnover of receivership property.

(a) Unless the court orders otherwise, on demand by a receiver:
1. (1) A person that owes a debt that is receivership property and is matured or payable on demand or on order shall pay the debt to or on the order of the receiver, except to the extent the debt is subject to setoff or recoupment; and
2. (2) Subject to subsection (c), a person that has possession, custody, or control of receivership property shall turn the property over to the receiver.
(b) A person that has notice of the appointment of a receiver and owes a debt that is receivership property may not satisfy the debt by payment to the owner.
(c) If a creditor has possession, custody, or control of receivership property and the validity, perfection, or priority of the creditor's lien on the property depends on the creditor's possession, custody, or control, the creditor may retain possession, custody, or control until the court orders adequate protection of the creditor's lien.
(d) Unless a bona fide dispute exists about a receiver's right to possession, custody, or control of receivership property, the court may sanction as civil contempt a person's failure to turn the property over when required by this section.

§ 29-40-112. Powers and duties of receiver.

(a) Except as limited by court order or the law of this state, other than this chapter, a receiver may:
1. (1) Collect, control, manage, conserve, and protect receivership property;
2. (2) Operate a business constituting receivership property, including preservation, use, sale, lease, license, exchange, collection, or disposition of the property in the ordinary course of business;
3. (3) In the ordinary course of business, incur unsecured debt and pay expenses incidental to the receiver's preservation, use, sale, lease, license, exchange, collection, or disposition of receivership property;
4. (4) Assert a right, claim, cause of action, or defense of the owner that relates to receivership property;
5. (5) Seek and obtain instruction from the court concerning receivership property, exercise of the receiver's powers, and performance of the receiver's duties;
6. (6) On subpoena, compel a person to submit to examination under oath, or to produce and permit inspection and copying of designated records or tangible things, with respect to receivership property or any other matter that may affect administration of the receivership;
7. (7) Engage a professional as provided in § 29-40-115;
8. (8) Apply to a court of another state for appointment as ancillary receiver with respect to receivership property located in that state; and
9. (9) Exercise any power conferred by court order, this chapter, or a law of this state other than this chapter.
(b) With court approval, a receiver may:
1. (1) Incur debt for the use or benefit of receivership property other than in the ordinary course of business;
2. (2) Make improvements to receivership property;
3. (3) Use or transfer receivership property other than in the ordinary course of business as provided in § 29-40-116;
4. (4) Adopt or reject an executory contract of the owner as provided in § 29-40-117;
5. (5) Pay compensation to the receiver as provided in § 29-40-121, and to each professional engaged by the receiver as provided in § 29-40-115;
6. (6) Recommend allowance or disallowance of a claim of a creditor as provided in § 29-40-120; and
7. (7) Make a distribution of receivership property as provided in § 29-40-120.
(c) A receiver shall:
1. (1) Prepare and retain appropriate business records, including a record of each receipt, disbursement, and disposition of receivership property;
2. (2) Account for receivership property, including the proceeds of a sale, lease, license, exchange, collection, or other disposition of the property;
3. (3) File with the county clerk of the county where the real property is located a copy of the order appointing the receiver and, if a legal description of the real property is not included in the order, the legal description;
4. (4) Disclose to the court any fact arising during the receivership that would disqualify the receiver under § 29-40-107; and
5. (5) Perform any duty imposed by court order, this chapter, or the law of this state, other than this chapter.
(d) The powers and duties of a receiver may be expanded, modified, or limited by court order.

§ 29-40-113. Duties of owner.

(a) An owner shall:
1. (1) Assist and cooperate with the receiver in the administration of the receivership and the discharge of the receiver's duties;
2. (2) Preserve and turn over to the receiver all receivership property in the owner's possession, custody, or control;
3. (3) Identify all records and other information relating to the receivership property, including a password, authorization, or other information needed to obtain or maintain access to or control of the receivership property, and make available to the receiver the records and information in the owner's possession, custody, or control;
4. (4) On subpoena, submit to examination under oath by the receiver concerning the acts, conduct, property, liabilities, and financial condition of the owner or any matter relating to the receivership property or the receivership; and
5. (5) Perform any duty imposed by court order, this chapter, or the law of this state, other than this chapter.
(b) If an owner is a person other than an individual, this section applies to each officer, director, manager, member, partner, trustee, or other person exercising or having the power to exercise control over the affairs of the owner.
(c) If a person knowingly fails to perform a duty imposed by this section, the court may:
1. (1) Award the receiver actual damages caused by the person's failure, reasonable attorney's fees, and costs; and
2. (2) Sanction the failure as civil contempt.

§ 29-40-114. Stay — Injunction.

(a) Except as otherwise provided in subsection (d) or ordered by the court, an order appointing a receiver operates as a stay, applicable to all persons, of an act, action, or proceeding:
1. (1) To obtain possession of, exercise control over, or enforce a judgment against receivership property; and
2. (2) To enforce a lien against receivership property to the extent the lien secures a claim against the owner that arose before entry of the order.
(b) Except as otherwise provided in subsection (d), the court may enjoin an act, action, or proceeding against or relating to receivership property if the injunction is necessary to protect the property or facilitate administration of the receivership.
(c) A person whose act, action, or proceeding is stayed or enjoined under this section may apply to the court for relief from the stay or injunction for cause.
(d) An order under subsection (a) or (b) does not operate as a stay or injunction of:
1. (1) An act, action, or proceeding to foreclose or otherwise enforce a mortgage by the person seeking appointment of the receiver;
2. (2) An act, action, or proceeding to perfect, or maintain or continue the perfection of, an interest in receivership property;
3. (3) Commencement or continuation of a criminal proceeding;
4. (4) Commencement or continuation of an action or proceeding, or enforcement of a judgment other than a money judgment in an action or proceeding, by a governmental unit to enforce the governmental unit's police or regulatory power; or
5. (5) Establishment by a governmental unit of a tax liability against the owner or receivership property or an appeal of the liability.
(e) The court may void an act that violates a stay or injunction under this section.
(f) If a person knowingly violates a stay or injunction under this section, the court may:
1. (1) Award actual damages caused by the violation, reasonable attorney's fees, and costs; and
2. (2) Sanction the violation as civil contempt.

§ 29-40-115. Engagement and compensation of professional.

(a) With court approval, a receiver may engage an attorney, accountant, appraiser, auctioneer, broker, or other professional to assist the receiver in performing a duty or exercising a power of the receiver. The receiver shall disclose to the court:
1. (1) The identity and qualifications of the professional;
2. (2) The scope and nature of the proposed engagement;
3. (3) Any potential conflict of interest; and
4. (4) The proposed compensation.
(b)
1. (1) A person is not disqualified from engagement under this section solely because of the person's engagement by, representation of, or other relationship with the receiver, a creditor, or a party.
2. (2) This chapter does not prevent the receiver from serving in the receivership as an attorney, accountant, auctioneer, or broker when authorized by law.
(c)
1. (1) A receiver or professional engaged under subsection (a) shall file with the court an itemized statement of the time spent, work performed, and billing rate of each person that performed the work and an itemized list of expenses.
2. (2) The receiver shall pay the amount approved by the court.

2 Backlinks

§ 29-40-116. Use or transfer of receivership property not in ordinary course of business.

(a) As used in this section, “good faith” means honesty in fact and the observance of reasonable commercial standards of fair dealing.
(b) With court approval, a receiver may use receivership property other than in the ordinary course of business.
(c)
1. (1) With court approval, a receiver may transfer receivership property other than in the ordinary course of business by sale, lease, license, exchange, or other disposition.
2. (2) Unless the agreement of sale provides otherwise, a sale under this section is:
  1. (A) Free and clear of a lien of the person that obtained appointment of the receiver, any subordinate lien, and any right of redemption; and
  2. (B) Subject to a senior lien.
1 Backlink
- 29-40-125(b)
(d) A lien on receivership property that is extinguished by a transfer under subsection (c) attaches to the proceeds of the transfer with the same validity, perfection, and priority the lien had on the property immediately before the transfer, even if the proceeds are not sufficient to satisfy all obligations secured by the lien.
(e)
1. (1) A transfer under subsection (c) may occur by means other than a public auction sale.
2. (2) A creditor holding a valid lien on the property to be transferred may purchase the property and offset against the purchase price part or all of the allowed amount secured by the lien, if the creditor tenders funds sufficient to satisfy in full the reasonable expenses of transfer and the obligation secured by any senior lien extinguished by the transfer.
(f) A reversal or modification of an order approving a transfer under subsection (c) does not affect the validity of the transfer to a person that acquired the property in good faith or revive against the person any lien extinguished by the transfer, whether the person knew before the transfer of the request for reversal or modification, unless the court stayed the order before the transfer.

1 Backlink

29-40-112(b)(3)

§ 29-40-117. Executory contract.

(a) As used in this section, “timeshare interest” means an interest having a duration of more than three (3) years that grants its holder the right to use and occupy an accommodation, facility, or recreational site, whether improved or not, for a specific period less than a full year during any given year.
(b) Except as otherwise provided in subsection (h), with court approval, a receiver may adopt or reject an executory contract of the owner relating to receivership property. The court may condition the receiver's adoption and continued performance of the contract on terms appropriate under the circumstances. If the receiver does not request court approval to adopt or reject the contract within a reasonable time after the receiver's appointment, the receiver is deemed to have rejected the contract.
(c) A receiver's performance of an executory contract before court approval under subsection (b) of its adoption or rejection is not an adoption of the contract and does not preclude the receiver from seeking approval to reject the contract.
(d) A provision in an executory contract that requires or permits a forfeiture, modification, or termination of the executory contract because of the appointment of a receiver or the financial condition of the owner does not affect a receiver's power under subsection (b) to adopt the executory contract.
(e) A receiver's right to possess or use receivership property pursuant to an executory contract terminates on rejection of the executory contract under subsection (b). Rejection is a breach of the contract effective immediately before appointment of the receiver. A claim for damages for rejection of the contract must be submitted by the later of:
1. (1) The time set for submitting a claim in the receivership; or
2. (2) Thirty (30) days after the court approves the rejection.
(f) If at the time a receiver is appointed, the owner has the right to assign an executory contract relating to receivership property under the law of this state, other than this chapter, the receiver may assign the executory contract with court approval.
(g) If a receiver rejects under subsection (b) an executory contract for the sale of receivership property that is real property in possession of the purchaser or a real property timeshare interest, the purchaser may:
1. (1) Treat the rejection as a termination of the executory contract, and in that case the purchaser has a lien on the property for the recovery of any part of the purchase price the purchaser paid; or
2. (2) Retain the purchaser's right to possession under the executory contract, and in that case the purchaser shall continue to perform all obligations arising under the executory contract and may offset any damages caused by nonperformance of an obligation of the owner after the date of the rejection, but the purchaser has no right or claim against other receivership property or the receiver on account of the damages.
(h) A receiver may not reject an unexpired lease of real property under which the owner is the landlord if:
1. (1) The tenant occupies the leased premises as the tenant's primary residence;
2. (2) The receiver was appointed at the request of a person other than a mortgagee; or
3. (3) The receiver was appointed at the request of a mortgagee and:
  1. (A) The lease is superior to the lien of the mortgage;
  2. (B) The tenant has an enforceable agreement with the mortgagee or the holder of a senior lien under which the tenant's occupancy will not be disturbed as long as the tenant performs the tenant's obligations under the lease;
  3. (C) The mortgagee has consented to the lease, either in a signed record or by the mortgagee's failure to timely object that the lease violated the mortgage; or
  4. (D) The terms of the lease were commercially reasonable at the time the lease was agreed to and the tenant did not know or have reason to know that the lease violated the mortgage.

1 Backlink

29-40-112(b)(4)

§ 29-40-118. Defenses and immunities of receiver.

(a) A receiver is entitled to all defenses and immunities provided by the law of this state, other than this chapter, for an act or omission within the scope of the receiver's appointment.
(b) A receiver may be sued personally for an act or omission in administering receivership property only with approval of the court that appointed the receiver.

§ 29-40-119. Interim report of receiver.

A receiver may file or, if ordered by the court, shall file an interim report that includes:
1. (1) The activities of the receiver since appointment or a previous report;
2. (2) Receipts and disbursements, including a payment made or proposed to be made to a professional engaged by the receiver;
3. (3) Receipts and dispositions of receivership property;
4. (4) Fees and expenses of the receiver and, if not filed separately, a request for approval of payment of the fees and expenses; and
5. (5) Any other information required by the court.

§ 29-40-120. Notice of appointment — Claim against receivership — Distribution to creditors.

(a) Except as otherwise provided in subsection (f), a receiver shall give notice of appointment of the receiver to creditors of the owner by:
1. (1) Deposit for delivery through first-class mail or other commercially reasonable delivery method to the last known address of each creditor; and
2. (2) Publication as directed by the court.
(b)
1. (1) Except as otherwise provided in subsection (f), the notice required by subsection (a) must specify the date by which each creditor holding a claim against the owner that arose before appointment of the receiver must submit the claim to the receiver.
2. (2) The date specified must be at least ninety (90) days after the later of notice under subdivision (a)(1) or last publication under subdivision (a)(2).
3. (3) The court may extend the period for submitting the claim.
4. (4) Unless the court orders otherwise, a claim that is not submitted timely is not entitled to a distribution from the receivership.
(c) A claim submitted by a creditor under this section must:
1. (1) State the name and address of the creditor;
2. (2) State the amount and basis of the claim;
3. (3) Identify any property securing the claim;
4. (4) Be signed by the creditor under penalty of perjury; and
5. (5) Include a copy of any record on which the claim is based.
(d) An assignment by a creditor of a claim against the owner is effective against the receiver only if the assignee gives timely notice of the assignment to the receiver in a signed record.
(e)
1. (1) At any time before entry of an order approving a receiver's final report, the receiver may file with the court an objection to a claim of a creditor, stating the basis for the objection.
2. (2) The court shall allow or disallow the claim according to the law of this state, other than this chapter.
(f) If the court concludes that receivership property is likely to be insufficient to satisfy claims of each creditor holding a perfected lien on the property, the court may order that:
1. (1) The receiver need not give notice under subsection (a) of the appointment to all creditors of the owner, but only such creditors as the court directs; and
2. (2) Unsecured creditors need not submit claims under this section.
(g) Subject to § 29-40-121:
1. (1) A distribution of receivership property to a creditor holding a perfected lien on the property must be made in accordance with the creditor's priority under the law of this state, other than this chapter; and
2. (2) A distribution of receivership property to a creditor with an allowed unsecured claim must be made as the court directs according to the law of this state, other than this chapter.

2 Backlinks

§ 29-40-121. Fees and expenses.

(a) The court may award a receiver from receivership property the reasonable and necessary fees and expenses of performing the duties of the receiver and exercising the powers of the receiver.
(b) The court may order one (1) or more of the following to pay the reasonable and necessary fees and expenses of the receivership, including reasonable attorney's fees and costs:
1. (1) A person that requested the appointment of the receiver, if the receivership does not produce sufficient funds to pay the fees and expenses; or
2. (2) A person whose conduct justified or would have justified the appointment of the receiver under § 29-40-106(a)(1).

2 Backlinks

§ 29-40-122. Removal of receiver — Replacement — Termination of receivership.

(a) The court may remove a receiver for cause.
(b) The court shall replace a receiver that dies, resigns, or is removed.
(c) If the court finds that a receiver that resigns or is removed, or the representative of a receiver that is deceased, has accounted fully for and turned over to the successor receiver all receivership property and has filed a report of all receipts and disbursements during the service of the replaced receiver, the replaced receiver is discharged.
(d) The court may discharge a receiver and terminate the court's administration of the receivership property if the court finds that appointment of the receiver was improvident or that the circumstances no longer warrant continuation of the receivership. If the court finds that the appointment was sought wrongfully or in bad faith, the court may assess against the person that sought the appointment:
1. (1) The fees and expenses of the receivership, including reasonable attorney's fees and costs; and
2. (2) Actual damages caused by the appointment, including reasonable attorney's fees and costs.

§ 29-40-123. Final report of receiver — Discharge.

(a) On completion of a receiver's duties, the receiver shall file a final report including:
1. (1) A description of the activities of the receiver in the conduct of the receivership;
2. (2) A list of receivership property at the commencement of the receivership and any receivership property received during the receivership;
3. (3) A list of disbursements, including payments to professionals engaged by the receiver;
4. (4) A list of dispositions of receivership property;
5. (5) A list of distributions made or proposed to be made from the receivership for creditor claims;
6. (6) If not filed separately, a request for approval of the payment of fees and expenses of the receiver; and
7. (7) Any other information required by the court.
(b) If the court approves a final report filed under subsection (a) and the receiver distributes all receivership property, the receiver is discharged.

§ 29-40-124. Receivership in another state — Ancillary proceeding.

(a) The court may appoint a receiver appointed in another state, or that person's nominee, as an ancillary receiver with respect to property located in this state or subject to the jurisdiction of the court for which a receiver could be appointed under this chapter, if:
1. (1) The person or nominee would be eligible to serve as receiver under § 29-40-107; and
2. (2) The appointment furthers the person's possession, custody, control, or disposition of property subject to the receivership in the other state.
(b) The court may issue an order that gives effect to an order entered in another state appointing or directing a receiver.
(c) Unless the court orders otherwise, an ancillary receiver appointed under subsection (a) has the rights, powers, and duties of a receiver appointed under this chapter.

§ 29-40-125. Effect of enforcement by mortgagee.

(a) A request by a mortgagee for appointment of a receiver, the appointment of a receiver, or application by a mortgagee of receivership property or proceeds to the secured obligation does not:
1. (1) Make the mortgagee a mortgagee in possession of the real property;
2. (2) Make the mortgagee an agent of the owner;
3. (3) Constitute an election of remedies that precludes a later action to enforce the secured obligation;
4. (4) Make the secured obligation unenforceable;
5. (5) Limit any right available to the mortgagee with respect to the secured obligation; or
6. (6) Except as otherwise provided in subsection (b), bar a deficiency judgment pursuant to the law of this state, other than this chapter, governing or relating to a deficiency judgment.
(b) If a receiver sells receivership property that pursuant to § 29-40-116(c) is free and clear of a lien, the ability of a creditor to enforce an obligation that had been secured by the lien is subject to the law of this state, other than this chapter, relating to a deficiency judgment.

§ 29-40-126. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to the law's subject matter among states that enact it.

§ 29-40-127. Relation to electronic signatures in global and national commerce act.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.) but does not modify, limit, or supersede Section 101(c) of that act (15 U.S.C. § 7001(c)) or authorize electronic delivery of any of the notices described in Section 103(b) of that act (15 U.S.C. § 7003(b)).

§ 29-40-128. Transition.

This chapter does not apply to a receivership for which the receiver was appointed before July 1, 2018.

Chapter 41 Abusive Civil Actions

§ 29-41-101. Chapter definitions.

As used in this chapter:
1. (1) “Abusive civil action” means a civil action filed by a plaintiff against a defendant with whom the plaintiff shares a civil action party relationship primarily to harass or maliciously injure the defendant and at least one (1) of the following factors are applicable:
  1. (A) Claims, allegations, and other legal contentions made in the civil action are not warranted by existing law or by a reasonable argument for the extension, modification, or reversal of existing law, or the establishment of new law;
  2. (B) Allegations and other factual contentions made in the civil action are without the existence of evidentiary support; or
  3. (C) Issue or issues that are the basis of the civil action have previously been filed in one (1) or more other courts or jurisdictions by the same, and the actions have been litigated and disposed of unfavorably to the plaintiff;
2. (2) “Abusive civil action plaintiff” means a person who files a civil action that a court of record has determined to be an abusive civil action and against whom prefiling restrictions have been imposed pursuant to this chapter;
3. (3) “Civil action” means a civil action, as defined in Rule 2 of the Tennessee Rules of Civil Procedure;
4. (4) “Civil action defendant” means a person or persons against whom a civil action has been filed that a court of record has determined to be an abusive civil action and imposed prefiling restrictions against the abusive civil action plaintiff pursuant to this chapter;
5. (5) “Civil action party relationship” means the plaintiff commencing a civil action and the civil action defendant fall within one (1) of the following categories:
  1. (A) Adults who are current or former spouses;
  2. (B) Adults who live together or who have lived together;
  3. (C) Adults who are dating or who have dated or who have or had a sexual relationship. As used in this subdivision (5)(C), “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;
  4. (D) Adults related by blood or adoption;
  5. (E) Adults who are related or were formerly related by marriage; or
  6. (F) Adult children of a person in a relationship that is described in subdivisions (5)(A)-(E); and
6. (6) “Harass or maliciously injure” means the civil action determined to be an abusive civil action was filed with the intent or was primarily designed to:
  1. (A) Exhaust, deplete, impair, or adversely impact the civil action defendant's financial resources unless:
    1. (i) Punitive damages are requested and appropriate; or
    2. (ii) A change in the circumstances of the parties provides a good faith basis to seek a change to a financial award, support, or distribution of resources;
  2. (B) Prevent or interfere with the ability of the civil action defendant to raise a child or children for whom the civil action defendant has legal custody in the manner the civil action defendant deems appropriate unless the civil action plaintiff has a lawful right to interfere and a good faith basis for doing so;
  3. (C) Force, coerce, or attempt to force or coerce the civil action defendant to agree to or make adverse concessions concerning financial, custodial, support, or other issues when the issues in question have been previously litigated and decided in favor of the civil action defendant;
  4. (D) Force, coerce, or attempt to force or coerce the civil action defendant to alter, engage in, or refrain from engaging in conduct when the conduct is lawful and is conduct in which the civil action defendant has the right to engage;
  5. (E) Impair, or attempt to impair the health or well-being of the civil action defendant or a dependent of the civil action defendant;
  6. (F) Prevent, interfere, or adversely impact the ability of the civil action defendant to pursue or maintain a livelihood or lifestyle at the same or better standard as the civil action defendant enjoyed prior to the filing of the action primarily for the purpose of harassing or maliciously injuring the civil action defendant; or
  7. (G) Impair, diminish, or tarnish the civil action defendant's reputation in the community or alienate the civil action defendant's friends, colleagues, attorneys, or professional associates by subjecting parties without knowledge of or not reasonably relevant to the civil action to unreasonably or unnecessarily complex, lengthy, or intrusive interrogatories or depositions.

§ 29-41-102. Applicability.

This chapter shall only apply to a civil action filed by a plaintiff against a defendant or defendants with whom the plaintiff shares a civil action party relationship.

§ 29-41-103. Defendant's right to raise claim — Hearing on court's own motion.

(a) If a civil action is filed and the defendant to the action believes it to be an abusive civil action, the claim may be raised by the defendant:
1. (1) In the answer to the civil action; or
2. (2) By motion made at any time during the civil action.
(b) The court may, on its own motion, determine that a hearing pursuant to § 29-41-104 is necessary to determine if the civil action is an abusive civil action.

§ 29-41-104. Hearing to determine merits of defendant's allegations.

(a) If the defendant to a civil action alleges, either by answer to the civil action or by motion made at any time the action is pending, that the action constitutes an abusive civil action and that the person filing the action is an abusive civil action plaintiff, the court shall conduct a hearing to determine the merits of the defendant's allegations.
(b) At the time set for the hearing on the alleged abusive civil action, the court shall hear all relevant testimony and may require any affidavits, documentary evidence, or other records the court deems necessary.

2 Backlinks

§ 29-41-105. Evidence creating rebuttable presumption.

At the hearing conducted pursuant to § 29-41-104, evidence of any of the following creates a rebuttable presumption that the civil action is an abusive civil action and that the person filing the action is an abusive civil action plaintiff and prefiling restrictions should be imposed upon the abusive civil action plaintiff:
1. (1) The same or substantially similar issues between the same or substantially similar civil action parties that are the subject of the alleged abusive civil action have been litigated against the civil action defendant within the past five (5) years in another court within the judicial district or another judicial district and the actions were dismissed on the merits or with prejudice against the civil action plaintiff;
2. (2) The alleged abusive civil action plaintiff has used the same or substantially similar issues that are the subject of the current civil action as the basis for an adverse complaint against the civil action defendant to a regulatory or licensing board and the regulatory or licensing board dismissed the complaint after a contested case hearing in compliance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
3. (3) The alleged abusive civil action plaintiff has been sanctioned under Rule 11 of the Tennessee Rules of Civil Procedure or a similar rule or law in another state or the federal government for filing one (1) or more frivolous, vexatious, or abusive civil actions within the past ten (10) years of filing the current civil action alleged to be abusive and the previous frivolous, vexatious, or abusive civil actions involved the same or substantially the same issues between the same or substantially the same civil action parties; or
4. (4) A court of record in another judicial district has determined that a civil action filed against the civil action defendant was an abusive civil action and is under or has been under prefiling restrictions in that judicial district.

§ 29-41-106. Dismissal of abusive civil actions — Remedies — Costs.

(a) If the court finds by a preponderance of the evidence that a person filing a civil action is an abusive civil action plaintiff, and that any or all civil actions filed by the abusive civil action plaintiff against the abusive civil action defendant that are pending before the court are abusive civil actions, the civil actions shall be dismissed.
(b) In addition to dismissal of any pending abusive civil action within the jurisdiction of the court, the court shall:
1. (1) Tax all costs of any abusive civil action pending in the court at the time of the court's finding pursuant to subsection (a) against the abusive civil action plaintiff;
2. (2) Award the civil action defendant reasonable attorney fees and all reasonable costs of defending the abusive civil action; and
3. (3) Impose prefiling restrictions upon any civil action the abusive civil action plaintiff attempts to file for a period of not less than forty-eight (48) months nor more than seventy-two (72) months.
(c) If a civil action defendant alleges that a claim is an abusive civil action or that the plaintiff is an abusive civil action plaintiff, and the court finds by a preponderance of the evidence that the action was not an abusive civil action or that the plaintiff is not an abusive civil action plaintiff, the court may grant to the plaintiff such remedies as may be just, including granting judgment in favor of the plaintiff, granting partial judgment in favor of the plaintiff, or allowing factual interpretations in favor of the plaintiff.
(d) If a civil action defendant alleges that a claim is an abusive civil action or that the plaintiff is an abusive civil action plaintiff, and the court finds by a preponderance of the evidence that the action was not an abusive civil action or that the plaintiff is not an abusive civil action plaintiff, the court may:
1. (1) Tax all costs related to litigating the issue of whether the action is an abusive civil action or whether the plaintiff is an abusive civil action plaintiff, against the civil action defendant who made the claim; and
2. (2) Award the civil action plaintiff reasonable attorney fees and all reasonable costs of defending the claim that the action was an abusive civil action or that the plaintiff was an abusive civil action plaintiff.

§ 29-41-107. Restrictions on the filing of claims by plaintiff determined to be abusive civil action plaintiff.

(a) Except as provided in this section, a person whom a court of record has determined to be an abusive civil action plaintiff and against whom prefiling restrictions have been imposed is prohibited from instituting a civil action against the abusive civil action defendant for the period of time the prefiling restrictions are in effect, or from continuing a civil action that was instituted against the same civil action defendant prior to the date the person was determined to be an abusive civil action plaintiff.
(b) Notwithstanding subsection (a) and consistent with the Constitution of Tennessee, Article I, § 17, an abusive civil action plaintiff against whom prefiling restrictions have been imposed may seek permission to file a civil action using the procedure set out in subsection (c).
(c)
1. (1) An abusive civil action plaintiff against whom prefiling restrictions have been imposed pursuant to this chapter who wishes to institute a civil action in a court of record during the time the abusive civil action plaintiff is under filing restrictions must first appear before the judge who imposed the prefiling restrictions to make application for permission to institute the civil action.
2. (2)
  1. (A) The judge may examine witnesses, including the abusive civil action plaintiff and the civil action defendant, to determine if the proposed civil action is or is not an abusive civil action and if there are reasonable and legitimate grounds upon which the complaint is based.
  2. (B) There is a rebuttable presumption that any proposed civil action is an abusive civil action if any of the defendants in the proposed action were civil action defendants in one (1) or more of the actions that were the basis for the person being declared an abusive civil action plaintiff.
3. (3)
  1. (A) If the judge who imposed the prefiling restrictions believes that the civil action the abusive civil action plaintiff is making application to file will be an abusive civil action, the application shall be denied and the judge shall determine a time when the person may next make application to file a civil action.
  2. (B) If the judge reasonably believes that the civil action the abusive civil action plaintiff is making application to file will not be an abusive civil action, the judge may grant the application and issue an order permitting the filing of the civil action. The order shall be attached to the front of the complaint when the abusive civil action plaintiff files the civil action with the clerk. The defendant to the action shall be served with a copy of the order at the same time the complaint is served.
4. (4) The findings of the judge shall be reduced to writing and made a part of record in the matter. If the abusive civil action plaintiff disputes the finding of the judge, the abusive civil action plaintiff may appeal to the presiding judge of the judicial district of the sanctioning judge. If the sanctioning judge is the presiding judge, the presiding judge shall randomly select two (2) other judges of courts of record in the judicial district to review the findings of the sanctioning judge. If there are not two (2) other judges in the judicial district available, the presiding judge may select a judge from an adjoining judicial district to review the findings. If the presiding judge or both reviewing other judges believe that the civil action the person is making application to file is not an abusive civil action, the findings of the sanctioning judge are overruled and both judges shall sign an order permitting the filing of the action. The order shall be entered and attached to the complaint and the defendant shall be served with a copy of the order at the same time the complaint is served.
(d) If the application for the filing of a civil action is granted pursuant to this section, the period of time commencing with the filing of the application requesting permission to file the action and ending with the issuance of an order permitting filing of the action shall not be computed as a part of an applicable period of limitations within which the civil action must be instituted.
(e) If after an abusive civil action plaintiff has made application and been granted permission to file a civil action pursuant to this section, the judge with jurisdiction over the action determines that the person is attempting to add parties, amend the complaint, or is otherwise attempting to alter the parties and issues involved in the civil action in a manner that the judge reasonably believes would make the action an abusive civil action, the judge may order a continuance or nonsuit of the action and return it to the presiding judge for further disposition.
(f)
1. (1) If a civil action defendant is served with a complaint from an abusive civil action plaintiff who filed a civil action in a judicial district in which the person has not been determined to be an abusive civil action plaintiff, and the complaint does not have an attached order from the judge who imposed the prefiling restrictions, the civil action defendant may obtain a certified copy of the order finding the person to be an abusive civil action plaintiff in another jurisdiction and send it to the judge where the new civil action was filed and the judge who imposed the prefiling restrictions.
2. (2) If it is brought to the attention of the court, or on the court's own motion, that a person against whom prefiling restrictions have been imposed has filed a civil action or continued a legal proceeding in the sanctioning judge's judicial district, or in another judicial district, without application to do so being granted by the sanctioning judge pursuant to this section, or the abusive civil action plaintiff has attempted to file an action through another party, the court in which the civil action is pending shall dismiss the action or revoke the continuance. The sanctioning judge may take whatever action against the abusive civil action plaintiff deemed necessary for a violation of the court's order.
3. (3) If an abusive civil action plaintiff against whom prefiling restrictions have been imposed files a civil action and the order granting permission to file the action is not attached to the complaint or served on the defendant, the defendant is under no obligation or duty to respond to the complaint, answer interrogatories, appear for depositions, or any other responsive action required by rule or statute in a civil action.
(g) If the judge who imposed the prefiling restrictions is no longer serving in the same capacity in the same judicial district where the restrictions were placed, any other judge in that judicial district may perform the review required and permitted by this section.

Chapter 42 Civil Actions Against Arms Dealers, Manufacturers, and Sellers

§ 29-42-101. Chapter definitions.

As used in this chapter:
1. (1) “Ammunition” means an ammunition or cartridge case, primer, bullet, or propellant powder designed for use in a firearm;
2. (2) “Dealer” means a person who is licensed to engage in business as a dealer in this state in accordance with 18 U.S.C. § 923;
3. (3) “Defective condition” means a condition:
  1. (A) Of a product that renders it unsafe or unreliable for normal or foreseeable handling; and
  2. (B) That is the result of the dealer, manufacturer, or seller's negligent deviation from the qualified product design or quality;
4. (4) “Engaged in the business” has the same meaning as defined under 18 U.S.C. § 921(a)(21), and, as applied to a seller of ammunition, means a person who devotes time, attention, and labor to the sale of ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of ammunition;
5. (5) “Firearm” has the same meaning as defined under § 39-11-106;
6. (6) “Manufacturer” means a person who is:
  1. (A) Engaged in the business of manufacturing a qualified product in intrastate commerce;
  2. (B) Licensed to engage in business as a manufacturer in accordance with 18 U.S.C. § 923; and
  3. (C)
    1. (i) Incorporated in this state; or
    2. (ii) Headquartered in this state;
7. (7) “Negligent entrustment” means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others;
8. (8) “Person” means an individual, corporation, company, association, firm, partnership, society, joint stock company, governmental entity, or other entity;
9. (9) “Qualified civil liability action” means a civil action or proceeding or an administrative proceeding brought by a person against a manufacturer or seller of a qualified product for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by a person;
10. (10) “Qualified product” means:
  1. (A) A firearm;
  2. (B) Ammunition; or
  3. (C) A component part of a firearm or ammunition; and
11. (11) “Seller” means a person engaged in the business of selling a qualified product at wholesale or retail in this state.

§ 29-42-102. Limitations on civil liability actions against dealers, manufacturers, or sellers.

A person shall not bring a qualified civil liability action in a court in this state against a dealer, manufacturer, or seller of a qualified product, except under the following circumstances:
1. (1) The dealer, manufacturer, or seller was involved directly in the crime giving rise to the action;
2. (2) An action brought against a transferor convicted under 18 U.S.C. § 924(h), by a party directly harmed by the conduct of which the transferor is so convicted;
3. (3) An action brought against a seller for negligent entrustment or negligence per se;
4. (4) An action in which a manufacturer or licensed seller or transferor of a qualified product knowingly violated a state or federal statute applicable to the sale or marketing of the product, and the violation was the sole proximate cause of the harm for which relief is sought, including a case in which the manufacturer or licensed seller or transferor knowingly made a false entry in, or intentionally failed to make appropriate entry in, any record required to be kept under federal or state law with respect to the qualified product, or aided, abetted, or conspired with a person in making a false or fictitious oral or written statement with respect to a fact material to the lawfulness of the sale or other disposition of a qualified product;
5. (5) An action for breach of contract or warranty in connection with the purchase of the product; or
6. (6) An action for death, physical injuries, or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act is considered the sole proximate cause of any resulting death, personal injuries, or property damage.

Chapter 43 Zoning Permit Applications — Applicable Precedent

§ 29-43-101. Legislative intent.

The general assembly declares that property owners should expect that the merits of a permit application will be judged on the law in effect at the time of application. The interests of property owners to use their property as they see fit and free from the threat of interference from potential local regulation outweighs the need of a local government entity to work out the details of a potential zoning change free from possible violations. To this end, the general assembly rejects the pending ordinance doctrine, described by the Tennessee supreme court in its May 14, 2007, opinion in the case of Harding Academy v. Metropolitan Government of Nashville and Davidson County, and declares the doctrine to be contrary to the public policy interests of property owners in this state.