Month: November 2018

Nothing beats a legal victory that summarily wipes out and dismisses all of the other side’s claims and causes of action as a matter of law, under Rule 56, right? But, don’t be too quick to draft your proposed order and leave out the critical details.

My advice to the victor is to make sure that you get your judge to clearly articulate his or her ruling on the record or in open court (which you’ll transcribe with your notes or even record with your i-phone). Then, if you’re preparing the Order, be sure to include those specific findings of fact and detailed conclusions of law in your Order.

Otherwise, you’ll be faced with a situation similar to what the Tennessee Court of Appeals was faced with in this opinion issued yesterday, in Bertuccelli v. Haehner, E2017-02068-COA-R3-CV, (Tenn. App. Nov. 28, 2018).

In that case, the trial court’s summary judgment and final order simply stated that defendant’s “supplemental motion for summary judgment and motion for summary judgment are hereby granted and thus all claims and causes of action set forth in the complaint are hereby dismissed with prejudice.” There were no findings of fact or conclusions of law. Just that.

As a result, the Court of Appeals wrote:

there is nothing in the trial court’s “final order” that explains its decision to
grant Appellees’ motion for summary judgment as to all claims and causes, and the order does not state the legal grounds for the grant of such summary judgment. … The trial court does not recite any evidence or argument it considered in making the decision to grant the final order on summary judgment, and, therefore, fails to comply with Rule 56.04. Accordingly, “[w]e cannot proceed with a review, speculating on the legal theories upon which the trial court may have ruled and the legal conclusions the trial court may have made.” Potter’s Shopping Ctr., Inc. v. Szekely, 461 S.W.3d 68, 72 (Tenn. Ct. App. 2014) (quoting Winn 2010 WL 2265451, at *6).

So, again, if you want your big victory to stand up to appellate review, put some effort into your proposed Orders. When drafting your proposed Orders, be sure to clearly state the grounds for the judgment.

 

 

 

In this new Nashville we live in, landlords are motivated more than ever to get out of old leases, so that they can get into new leases for the astronomical “new Nashville” rental rates.

Or, at least, that’s what some tenants argue when their landlords assert a breach claim related to nominal  or technical breaches under a lease.

Based on a ruling filed this week by the Tennessee Court of Appeals, a Tennessee Chancery Court will consider whether a breach is a “material breach” before allowing the landlord to proceed.

That case is Bailey Cooper, et. al. v. Pete Patel, W201702319COAR3CV, 2018 WL 6068856 (Tenn. App. Nov. 19, 2018), and the opinion is a useful reminder that a court will apply the letter of the law, as well as common sense, in construing a lease.