Tennessee Courts embrace Google Maps, AG sues Apple, and other technology updates

Some quick hits on this quiet Wednesday before Thanksgiving…

Tennessee Court of Appeals takes judicial notice of Google Maps. Yesterday, the Tennessee Court of Appeals expressly approved a trial court’s taking “judicial notice” of Google Maps to prove distance in trial proceedings.

(Note: Judicial notice is an evidentiary concept that means, basically, when a fact that is so well known and accepted that the court to accept the evidence as true without a full demonstration of proof of the underlying facts.)

The Court wrote: “Google Maps reflects the efforts by Google employees to provide an accurate representation of geography. The company’s business incentive to produce accurate maps is obvious. Furthermore, it is not as though Google Maps is a dubious new novelty. Google Maps has been relied upon by courts across jurisdictions for a number of years now, to say nothing of the general population.” The Total Garage Store, LLC v. Nicholas C. Moody, 2020 WL 6892012, at *11 (Tenn.Ct.App., 2020).

Some people claim that Tennessee Courts are, generally, reluctant to embrace new technology. Reasonable minds can differ, but this shows that courts will embrace technology when it makes obvious common sense.

It also doesn’t hurt that the opinion originated from one of the State’s “younger” and tech-savvy Chancellors…

Now, how are we doing with Zoom hearings?

I remain a little torn on this, and I’ll say that it depends on the Judge. With an active, engaged judge, you get 100% of the same focus, attention, and competency via a telephonic or video hearing. I’ll do a hearing via Zoom with those judges every time.

But, with a judge who is checked out and not paying attention, it’s easier for that judge to coast through, and it’s harder to get their focus and attention when you’re not personally in the same room. More judges than you’d think fall into this category.

Like so many other things in the law, the judge’s demeanor and interest (in the case, in the law, in where the lawyer is from, etc.) are the ultimate wild-card as to whether a client is going to get justice.

Tennessee sues Apple, Inc. over unfair and misleading information about iPhone updates and battery life. Last Friday, the Tennessee Attorney General filed a Complaint against Apple, Inc., alleging a violation of the Tennessee Consumer Protection Act over the iPhone’s “unexpected shutdowns” and “throttling” issues occurring in 2016 and 2017.

From the Complaint, it’s unclear how many Tennessee users are impacted and how much in damages are being sought. The full Complaint can be found here:

You’ll note that the final line of the Complaint contains a reference to “Ethicon’s unlawful trade practices,” which suggests that Attorney Generals are just like the rest of us, when it comes to recycling form pleadings.

Are lawyers more effective working from home?

Lots of parents (especially mothers) have talked about the struggle to effectively practice law from home with kids in the house. In my house, I spend the five minutes before a call or a Zoom hearing telling, bribing, begging my children to be quiet, stay in their room, etc.

But, who knew that the real time-wasters were our law partners?

If this report is to be believed, maybe the “heightened productivity” lawyers enjoy at home results from an unhealthy lack of separation between work and home…

Looking to help this season? Consider donating to the Window of Love.

You may have seen the Tennessean article last week that the State of Tennessee has amassed a historically high amount of surplus money in the Temporary Assistance for Needy Families fund, which is now at $741 million.

This is awesome, right? What perfect timing for this money in an economic crisis?

But, later, the article mentions that the state is just sitting on the money, with no clear plan in sight to use it to help people. In fact, the fund serves a smaller number of households in 2020 than it did in 2019. Some good news is that, maybe next year, the state will decide what to do with all this money.

Until then, though, I want to tell you about somebody who is doing something to help. She’s Samaria Leach, and she created the Window of Love.

It all started with a Facebook post on March 16, when she realized that the Metro school shut-down meant that there’d be no school lunches for the kids in her North Nashville neighborhood. That school lunch might be the only consistent source of food for some kids. So, from her own pantry, she put together food boxes, which she’d distribute out of her window a few days a week.

At first, she fed 25-35 hungry kids from her neighborhood with food from her own pantry.

Now, 8 months later, she’s still feeding hungry kids, but the number has tripled.

As you’re considering donations of time, money, or even food this holiday season, please consider donating to Windows Of Love. Her Facebook page frequently includes requests for grocery items that she needs for that week, including this post for Thanksgiving baskets for the families she serves.

If the state we live in isn’t going to help our kids, maybe we have to be like Samaria and recognize that we have to look out for each other sometimes.

Judgment Creditors can cross county lines in execution sales of real property, says TN Court of Appeals

Yesterday, the Tennessee Court of Appeals answered another longstanding creditor question: Whether a Court can order an execution sale on a debtor’s real property in a different county.

I get asked that all the time, and I’ve generally said you can. Now, I can cite the new opinion from the Court of Appeals in Ronald L. Jones v. Louise Helms, No. W2019-00864-COA-R3-CV, 2020 WL 6806372 (Tenn. Ct. App. Nov. 19, 2020).

The legal issue is whether the first county court has “subject matter jurisdiction” to order the sale of real property in another county. The Court looked first to Tenn. R. Civ. P. 69.07, which gives the judgment creditor a lien (per Rule 69.07(2) and provides that a creditor “may move for an order of sale. (per Rule 69.07(3)).” But, Rule 69.07 doesn’t provide any guidance on the process, procedure, or venue.

So, the question remains: In which county does the creditor make this request?

The Court wrote:

Rule 69.07(3) does not mandate which court or county a judgment creditor must file the motion in for the order of sale. Furthermore, circuit courts are courts of general jurisdiction, meaning that they have broad, rather than limited jurisdiction. Tenn. Code Ann. § 16-10-101 (“The circuit court is a court of general jurisdiction, and the judge of the circuit court shall administer right and justice according to law, in all cases where the jurisdiction is not conferred upon another tribunal.”). Therefore, it would appear that under the terms of the rule and the broad nature of the jurisdiction conferred upon circuit courts, Appellee was entitled to move for the order of sale in the circuit court for Gibson County. Indeed, it appears to be an accepted practice to file Rule 69.07 motions in circuit courts…. Moreover, Tennessee law generally provides that, with regard to sale of land for the payment of debts by decedents, courts of record “may decree a sale of lands lying in any part of the state.” Tenn. Code Ann. § 16-1-107.

The opinion makes fairly short order of this long-standing legal issue, and the certainty and procedure is good for creditors.

In the past, after my review of the chancery court statutes, I’d often wondered whether a court had jurisdiction to order and approve a sale of real property in a different county. I still have some lingering doubts whether a better challenge and legal argument in response could cast some doubt on this issue, particularly under the chancery jurisdiction statutes.

But, until then, save this opinion. It may save you having to file a Petition for Sheriff’s Sale in a different county to enforce your judgment.

Foreign Judgments based on Confessions of Judgment are valid in Tennessee

I get 6 calls a year from out-of-state clients, asking me to file a lawsuit to enforce a confession of judgment contained in their out-of-state loan documents.

It’s been happening so long that, for the past 7 years, I just send them a link to this post “Confessions of Judgment aren’t Valid in Tennessee: Here’s Why.”

Some background: A confession of judgment is a provision in a loan or an entirely separate loan document that grants, at the time the loan is signed, the lender an unequivocal right to take a judgment for the debt under that note in the event of a breach, sometimes without the right to notice of the suit, a hearing, or any defenses. In short, when you sign the loan documents, you also sign an agreed judgment for the unpaid debt in advance. This is a device that is sometimes used by predatory lenders–lenders “of last resort,” who serve desperate borrowers and expect the loans to go bad.

Tennessee law expressly prohibits judgments based on confessions of judgment. Tenn. Code Ann. § 25-2-101(a) says:

Any power of attorney or authority to confess judgment which is given before an action is instituted and before the service of process in such action, is declared void; and any judgment based on such power of attorney or authority is likewise declared void.

Couldn’t be more clear, right? Well, what happens when a New York creditor takes a judgment in New York (where it’s valid) based on a confession of judgment and asks a Tennessee court (where it’s not) to recognize it as valid and enforceable, under the Uniform Enforcement of Foreign Judgments Act?

Doesn’t the statute say “any judgment” based on a confession of judgment is “declared void”?

It’s an interesting question, and, yesterday, the Tennessee Court of Appeals issued the first opinion ever deciding this issue. The case is Capital Partners Network OT, Inc. v. TNG Contractors, LLC, et al. AL., No. M202000371COAR3CV, 2020 WL 6708232 (Tenn. Ct. App. Nov. 16, 2020).

The opinion provides a great background on defenses to the UEFJA and goes on to note that, under the Full Faith and Credit Clause of the United States Constitution, every state must respect the judgments and sovereignty of its sister states, and that a state would be “reluctant” to question another state’s judgments on public policy concerns and only after the defendant satisfies a “stern and heavy burden.”

In order to deny another state’s judgment, then, it’s got to be a really, really big deal, and the words the Court used was “repugnant to the Federal Constitution.”

When discussing a judgment based on a confession of judgment or cognovit note, the Tennessee courts will look to whether the loan document “denies the debtor due process of law.” A question is whether there was a “voluntary and knowing waiver of the fundamental due process notice and a hearing.”

In the end, the Court wrote that “a foreign money judgment resulting from a cognovit note or clause that was entered into with a knowing, voluntary waiver of the right to notice and an opportunity to be heard must enjoy full faith and credit in Tennessee.” So, a small-print provision hidden in a loan note will not satisfy this test, but a separate document that clearly and prominent states the purpose of the document and the rights being waived will suffice.

Again, to be clear, this doesn’t mean that the Tennessee court will enter a judgment based on the out-of-state confession of judgment. Tenn. Code Ann. § 25-2-101(a) doesn’t allow that.

Instead, this case says that, if a creditor has a confession of judgment and is smart, the creditor will take a judgment in the other state (where these types of judgments are allowed), and then hire a Tennessee creditors rights attorney to enroll and domesticate this foreign judgment.

Please Vote For Me in the Nashville Bar Association Board of Directors Election: Here’s Why:

I’m hoping you don’t have election fatigue, because I need your vote in November…

I’ve been nominated to serve on the Board of Directors of the Nashville Bar Association. Tomorrow morning, you’ll be receiving your ballot via email, and you’ll be asked to vote for 6 out of the 14 candidates.

Here’s why you should vote for me:

I care about the Nashville Bar Association. I’ve been a member my entire legal career, and this is a natural extension of my service to the NBA. I’ve written Nashville Bar Journal cover stories. I’ve volunteered at their community events and legal clinics. I’ve taught continuing legal education courses. I host the NBA’s annual karaoke happy hour event (which required me to purchase a professional grade karaoke system, so “Win-Win” for everybody).

I can help the Nashville Bar Association make our legal community better. The reason I donate so much of my time to the NBA is that I care about making Nashville a better place to practice law. Plus, after 21 years of practice, I’ve got pretty strong opinions and a unique perspective, drawn from a robust practice in so many different courts.

I mean, seriously, do any the other nominees recognize the historic significance of this staircase?

There are all kinds of reasons why somebody would want to be on the Board, but I’m doing this to advocate for lawyers. Let’s push for common sense decisions on staircases. Let’s push for comprehensive measures in response to COVID. Let’s push for advances in technology and e-filing. Let’s talk about diversity in the bar and also the bench.

It’s not incorrect to say that the Lawyers’ Association for Women has made me their “highest endorsed candidate.”

I stand up for what I care about. When I left Bone McAllester, one of the IT staff members told me, “David, you are one of the realest people I’ve ever met.” It was the best compliment I’ve received in years. Don’t we all want to be seen as authentic and honest about the way we act and communicate?

If you read this blog, you know I’m not afraid to say what I think, and that’s how I’d approach this board service. To make real change, you have to identify clear goals and use your voice to take a stand. For me, this isn’t about resume-padding or networking, it’s about finding ways to make our legal community an easier and better place to practice.

A few months ago, I started my own boutique law firm (more on that–a lot more–in a later post). With COVID and all the changes in my own practice, I had considered declining the nomination. Was this this best time to take on this task?

In the end, though, I decided that this is a perfect time. With all the uncertainty from COVID, rapid technological advances, and fundamental changes in the way we work, what an awesome time to be part of the local bar’s leadership. Plus, as one of the only nominees at a small/solo firm, who else would speak for me on the Board?

Vote for me.

Also, tell your friends.

The state of the Nashville legal world, 8 months Into COVID

Today marks the 8 month mark of when, basically, people started taking COVID seriously.

On March 10, 2020, I had travelled to Louisville and was staying at the gorgeous and totally empty Omni Hotel, to interview for the open Louisville Bankruptcy Judgeship. That was on a Tuesday, and, on Saturday, my family was scheduled to depart for a spring break Disney Cruise.

(Spoiler-alert: Neither the job nor the cruise happened.)

My view entering the Louisville Omni.

While sitting in the Omni’s gorgeous and empty food hall, I read an article in the local paper about how Washington DC’s first known COVID patient had stayed at the Omni the week before. I realized the magnitude quickly (as well as why I was the only guest at the hotel).

In fact, on the drive back to Nashville, I coordinated my wife buying $400 of frozen pizzas and toilet paper, and I pondered stopping at Gander Mountain in Bowling Green to buy pre-apocalypse weapons and ammo.

(Spoiler-alert: The pizzas and toilet paper did happen, but the Anthony armory remains stocked only with hand-to-hand combat accessories.)

Continue reading “The state of the Nashville legal world, 8 months Into COVID”

New Court of Appeals opinion affirms landlord’s duty to mitigate damages on Tennessee leases

In a post from last month, I mentioned that, when a commercial tenant defaults and leaves a leased property, the landlord is faced with a hard decision: File the lawsuit for unpaid rent now, or do you wait 6-9 months until a replacement tenant can be found?

One thing we know for sure: A landlord can’t just file a lawsuit for all the rent due for the remainder of the term. Instead, the landlord has a duty to mitigate its losses, which means–in this situation–to try to find a replacement tenant.

Last week, the Tennessee Court of Appeals reaffirmed this duty in Loans YES v. Kroger Limited Partnership I, et. al. No. M201901506-COAR3CV, 2020 WL 6386884 (Tenn. Ct. App. Oct. 30, 2020).

As a quick summary, the Court makes the following points:

Continue reading “New Court of Appeals opinion affirms landlord’s duty to mitigate damages on Tennessee leases”

Where are all the bankruptcy filings in Nashville?

Many years ago, I got a call from a bank attorney who was in the middle of a 4 day trial in Williamson County. It was a lawsuit by a bank to collect its post-foreclosure deficiency balance. The lawyer called me to tell me that the debtor’s attorney had printed out my very own blog post and had introduced it into evidence as a learned treatise under Tennessee Rule of Evidence 618 in order to cross-exam the bank’s expert witness.

While I was flattered (my initial reaction was to ask if the Chancellor was impressed), it was also strange–given my long allegiance to banks and creditors in litigation–that Creditor Rights 101 would be used against a bank. (Also, that debtor’s counsel must have been desperate if he resorted to using my blog post as his Exhibit 15).

Regardless, man-o-man, beware of using this law blog as learned evidence of anything, because I can be really wrong sometimes.

Like, on April 3, 2020, when I boldly predicted that bankruptcy filings in the Middle District of Tennessee would hit an all-time high in June 2020.

It didn’t happen. Not even close. Literally, the opposite happened.

As of today, October 29, 2020, there have been 4,820 bankruptcy cases filed in the Middle District of Tennessee. That sounds like a lot, but, for comparison’s sake, consider that the 4,820th case was filed on the following dates over the past decade: July 30, 2019; July 20, 2018; July 18, 2017; July 6, 2016; July 15, 2015; June 17, 2014; May 31, 2013; May 23, 2012; May 11, 2011; and May 4, 2010.

Not only are we not hitting a record high, but, instead, new bankruptcies are being filed at a record low pace.

As late as July, we were still wrong about the future of bankruptcy (I say “we” because the Nashville Post joined me on the bad predictions).

So, today’s news brings more predictions (but, this time, far less bold) via this American Bankruptcy Institute story, which predicts that the new bankruptcies are coming…in 2021.

“As stimulus checks and other forms of temporary relief run out, experts are projecting an increase in personal bankruptcy filings, which have so far been muted during the coronavirus pandemic,” the Wall Street Journal reports. “Only a new stimulus program targeting individuals or government actions forgiving or deferring student loans can keep individual filings from rising.”

In light of all this, I’m not making more predictions, because these are unpredictable times. Our General Sessions Court shuts down evictions and collections dockets, then re-opens them, then drastically limits them, and then reopened them again. People are afraid to leave their houses. Banks are afraid to foreclose on those houses. Lawyers are afraid to go to their offices.

The bankruptcies are coming. But who knows when.

Finally, to all you crafty debtor lawyers out there: I can edit any these blog posts on a moment’s notice.

It may be time to start filing Davidson County evictions in Circuit Court.

The new 25 case limit on the civil dockets in Davidson County General Sessions has been the problem we thought it would be.

As of last Thursday, the next available civil hearing date for new and pending cases was December 9, 2020.

Since last Thursday, 357 new cases have been filed in Sessions Court.

Given the usual holiday court schedule, I’d bet that–as of this blog post— there are no more open civil dockets in 2020.

The Nashville Bar Association hosted a General Sessions Court Town Hall today to talk about these issues, but, given the unprecedented nature of this problem, nobody knows what’s next and how to solve it. Will there be afternoon dockets? Staggered morning dockets? Video appearances?

I’ve received a handful of calls from local lawyers, for advice on how to navigate all this. In some cases, the best move is to file the matter and just get a date locked down before things get worse (even if it’s in mid-January).

Another option, though, if you aren’t going to get into Court until January or February, is to file your commercial eviction lawsuits in Circuit Court (which has jurisdiction, per Tenn. Code Ann. § 29-18-108).

If you file an eviction action in Circuit, today, and get it served this week, you may be able to get a judgment by early December (or early January).

And, yes, I know I’ve criticized lawyers for filing Sessions-sized and eviction matters in Circuit Court (a move that generally presents no tangible strategic advantage, other than the lawyers get more billable hours).

But these unprecedented times call for novel ideas.

After a judgment for possession, does res judicata prevent a landlord from taking a money judgment?

I represent a lot of commercial landlords, and, when there’s a payment default and they want to evict a tenant, there’s an early strategy question that they all face: (1) Do we sue for possession only; or (2) Do we sue for money and unpaid rent (through the date of the court hearing)?

It’s a nuanced question. Most landlords choose # 2, especially since detainer lawsuits are filed in General Sessions Court and, due to a little-known exception, you can take a huge money judgment in “small” claims court.

But, they’ll generally say, what about the unpaid rent for time periods after we get a judgment and evict them from the property? That’s a second lawsuit. Isn’t there a rule against two lawsuits on the same issues?

Yes, it’s called res judicata, which we talked about last year.

So, can you sue a tenant two times on the same lease agreement?

Continue reading “After a judgment for possession, does res judicata prevent a landlord from taking a money judgment?”