Davidson County Has Searchable Criminal Court Records

We’ve come a long way with Court records going online.

Right now, you can search property ownership records via the Davidson County Assessor’s Office’s Webpro system. Davidson County Circuit, General Sessions, and Chancery Court filings are all available online. Federal and Bankruptcy Court pleadings are available online via PACER, and attorneys can even file documents online.

I didn’t realize this, but Davidson County Criminal Court records are also available online. You can search the case information at this website.

While this isn’t designed to provide a full background check on individuals, this search function could be useful to employers or other people needing to search the background of others.

Lawyers: Read What the Bond Says Before You Sign It

In Davidson County, I file a Cost Bond with every new lawsuit. A “Cost Bond” is given pursuant to Tenn. Code Ann. § 20-12-120 and means that the plaintiff’s lawyer is acting as surety for payment of all court costs in the matter.

These costs generally run from $200 to $500 and, of course, it’s the client’s obligation to pay; nevertheless, the Clerk wants the lawyer to make sure those costs get paid. If, at the end of the case, the court costs aren’t paid, our Clerk gives it about 6 months, then they send the attorney a bill under the Cost Bond.

No big deal, right? (Well, it’s sort of a big deal. I never sign as “David Anthony”–I sign them as my law firm, “Bone McAllester Norton”).

Recently, I was blown away by seeing an attorney sign a different type of bond. This attorney signed a “Surety Bond,” in the mid-five-figures-range, pursuant to Tenn. Code Ann. § 29-18-130(b)(2).

If you don’t know that statute, that’s the detainer appeal bond statute, which requires a defendant who appeals an eviction judgment to post a bond in the amount of one year’s rent (in order to remain in possession of the property). Instead of posting a cash bond, one option is to have two Sureties guaranty payment of any damages and accruing rent.

So, in the event that the defendant loses the appeal, this attorney is personally liable for the damages. This defendant hasn’t been paying her mortgage, and it’s quite possible that she isn’t going to pay an entire year’s rent on the property. But guess who will be liable for the entire debt?

Yep. This attorney. For the entire amount. Watch what you sign.

Google “[Attorney Name] lawyer [City]” — If the Results Don’t Locate You, Your Marketing Efforts Have Failed

I have a friend who’s husband is a fairly new attorney. When I had a conflict on a matter recently, I decided to refer the work his way. So, I googled the guy to get his law office’s address/phone number to pass along to my client. 

To my surprise, I couldn’t find him.

He didn’t have a website.  He hadn’t claimed his Avvo profile. LinkedIn took me to a dentist in California. I found bunch of miscellaneous sites that mentioned him (when he passed the bar; about a case he had worked on; about a time he found a lost dog). 

But, there wasn’t a website that included: his name; his address; and his legal practice areas. 

Well, actually there was: After about ten minutes of digging, I found a directory of lawyers on the Tennessee Bar Association site. I finally found him. Frankly, it was hard work. I had to really, really want to find this particular lawyer. 

My advice to any lawyer is: Get a website. They’re cheap. They’re easy. And, unless you want to get really fancy, once you have one, you’re good. (If your firm already has a website, then  you’re fine.)

You never want it to be that hard for somebody to find you. It doesn’t have to complicated. Address. Phone Number. Practice Areas. If you’re unsure how much info to post, look at this great Venn Diagram on “What Lawyer’s Websites Have versus What Clients are Looking for.”

If you don’t have a lawyer website,  you’re depending entirely on Avvo, Yellow Pages, or whatever other third party service to find your information (on its own) and provide it to your customers. 

With your own website, a client, potential client, or adversary should be able to google search for “[name] lawyer [city/state]” and find you. If they can’t do that, you’re doing it wrong. 

Does Tenn. Code Ann. § 47-14-103 Impose a Ceiling on Interest Where the Note says “Maximum Rate Allowed”? (No.)

A few weeks ago, I got a call from a lawyer who was staring at a Judgment submitted by opposing counsel. The Judgment provided for post-judgment interest at 10%, which immediately made the lawyer think: Didn’t they lower the post-judgment interest rate in Tennessee? (They did ).

But, this Judgment recited that the underlying note provided for interest at the “maximum rate allowed under law,” which the Judgment defined as 10%, pursuant to Tenn. Code Ann.  § 47-14-103.

That statute, titled “Maximum Rate of Interest,” provides:

Except as otherwise expressly provided by this chapter or by other statutes, the maximum effective rates of interest are as follows:

(1) For all transactions in which other statutes fix a maximum effective rate of interest for particular categories of creditors, lenders, or transactions, the rate so fixed;
(2) For all written contracts, including obligations issued by or on behalf of the state of Tennessee, any county, municipality, or district in the state, or any agency, authority, branch, bureau, commission, corporation, department, or instrumentality thereof, signed by the party to be charged, and not subject to subdivision (1), the applicable formula rate; and
(3) For all other transactions, ten percent (10%) per annum.

So, the Judgment creditor apparently reasoned, 10% was the “cap” to the interest rate, where the note didn’t expressly state a maximum rate in numerical form. This was the basic holding in a 2005 case, McNeil v. Nofal, 185 S.W.3d 402, 414 (Tenn. Ct. App. 2005).

I haven’t seen this particular issue before. I think it’s incorrect. My stance is that subpart (1) to the statute protects banks who are proceeding on a promissory note. The full reasoning is laid out in a 2008 case, Foster Bus. Park, LLC v. J & B Inv., LLC, 269 S.W.3d 50, 55 (Tenn. Ct. App. 2008).

But, long story short, lawyers make money when there’s a split of authority that leaves a little crack in the door for creative arguments. And this statute and the 2005 case open the door a little bit.

At the end of all this, my primary surprise was that the creditor’s lawyer was effectively conceding the issue by self-imposing a 10% cap. When in doubt (and assuming you represent the bank), I vote for the 24% rate of interest.

New Tennessee Opinion Reviews Law on Motions for Recusals: Sets High Bar for Proof

A good rule of thumb for determining if a lawsuit has come off the rails is if one of the litigants files a Motion for the judge in the case to recuse himself. That’s a motion saying, essentially, that this particular judge is so biased against one party that the judge can’t rule fairly in the case.

I’ve been asked to file these in the past, and I always refuse because, if you attack a judge’s impartiality and you lose, then you’re stuck with that same judge. 

So, I read this Tennessee Court of Appeals case from last week with some interest, because it is the first time I’ve seen the law on recusal motions spelled out with this much detail. And, of course, it’s in a divorce proceeding, where emotion runs high.  (Side note: This is a completely insane divorce–login to Davidson County CASELINK and look at the pleadings. God help us all.)

In the decision, the Court focuses on whether the trial court entered the proceedings with a bias, such that it “prejudged” the litigants based on “interest, partiality, or favor” resulting “from extrajudicial sources and not from events or observations during litigation of a case.” Mere adverse rulings are not enough to justify recusal.

Nine times of out ten, a motion for recusal is filed by a party who is losing the lawsuit, and they equate the judge ruling against them as the judge being biased. This new opinion supports the position that they are not the same. Most of the time, the judge will rule against a party because they’re wrong, not because the judge doesn’t like them.

The Tennessee Prompt Pay Act Requires Retainage to Held Separately and Imposes Penalties for Non-Compliance

After representing contractors and suppliers over the years, I’ve learned a good deal about the Tennessee Prompt Pay Act, which is found at Tenn. Code Ann. § 66-34-101, et. seq.

The Act has a lot of protections for real estate contractors, but one significant part to know is in Tenn. Code Ann. § 66-34-104, titled “Escrow; portion of contract price.” This statute governs those construction contracts that require retainage.

Under § 66-34-104(a), any retainage “shall be deposited in a separate, interest-bearing, escrow account with a third party which must be established upon the withholding of any retainage.” Under § 66-34-104 (b), “the funds shall become the sole and separate property of the prime contractor or remote contractor to whom they are owed….” Finally, the owner/general contractor must provide written notice that the escrow account has been set up, including the name of the bank, the account number, and the amount of funds on deposit.

The requirement that retainage be placed in a third party, separate account (not in the owner or the General Contractor’s accounts) is designed to protect contractors by: 1) making sure that money is, in fact, set aside for payment to contractors; and 2) held in the name of or for the benefit of the contractors.

There’s a $300 a day penalty for non-compliance. That doesn’t sound like much, but it can add up over time (especially on large, long term jobs).

It is those large, long term jobs that involve the most money being retained and, as a result, the deep pocketed owners who think they have the most bargaining power to refuse to comply with the retainage requirements. 

My advice to contractors is to confirm compliance with the escrow account requirements. Do it early in a project. If the project goes bad, it may be too late.

The $25,000 General Sessions Judgment Limits May Apply on Appeal, Unless the Claims are Amended

I enjoy practice in General Sessions Courts. Once you get past the utter chaos, unpredictability, and potentially long lines at the elevators, you may be able to obtain an enforceable judgment in less than 4-6 weeks after filing your lawsuit. That’s the fastest justice in the State.

Remember, though, that the monetary limit in General Sessions is $25,000.

Given the speed advantages, some lawyers will sue for a lesser amount to have their lawsuits heard in Sessions (i.e. the debt is $27,0000, and they sue for $24,999.99).  Then, if they lose the case or if it’s appealed to Circuit Court, the lawyers know they can always increase the action to the full amount in Circuit Court.

Such amendments are allowed under Tenn. Code Ann. § 16-15-729, which says the Circuit Court “shall allow all amendments in the form of action, the parties thereto, or the statement of the cause of action, necessary to reach the merits, upon such terms as may be deemed just and proper. The trial shall be de novo, including damages.”

But, don’t think the informality of Sessions practice carries over into Circuit Court.  The Tennessee Supreme Court’s opinion in Brown v. Roland, 357 S.W.3d 614, 616 (Tenn. 2012) held that a party is limited to their damages sought until and unless an actual amendment is made to the complaint. 
This is an interesting case, because, by implication, an amended complaint may also be required to add parties and causes of action.
In Sessions Court, it can feel like “anything goes.” It’s not a court of record, and the Judges let litigants have some procedural leeway in presenting their claims. Under the Brown case, that leeway stops upon appeal.