Start 2019 Right: Apply to be a Lawyer Mentor

With the new year, I’ve committed to serving the community more in 2019 than ever before.

To that end, I’ve signed up to mentor 7 high school students via the tnAchieves program, I’m coaching (maybe) a Mock Trial team at one of Nashville’s inner city high schools this spring, and, of course, I’m still going to visit Legal Aid regularly and continuing my service at The Village Chapel.

If you’re looking for an opportunity to get more engaged, I really recommend the Tennessee Bar Association’s Mentoring Program. It’s not too big of a time commitment and, trust me, you’ll make a lifelong friend in the process.

And, because we’re lawyers, the way we interact, foster relationships, and model civility in the bar with each other matters.

If you’ve got a few years under your belt (and, don’t worry, any experience matters and they’ll place you with an appropriate mentee), you’re needed.

Apply here.

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Tennessee Post-Judgment Interest Rate at All-Time Modern High

Once upon a time, computing post judgment interest was really, really easy. But, as you’ll recall from my post in February 2013, Tennessee switched from a flat-rate of 10% to a variable rate under the (then) new version of Tenn. Code Ann. § 47-14-121.

Under that statute, the post judgment interest rate is subject to increase every six months. And, lately, it’s been steadily going up, every six months.

On January 1, 2019, it went up again, to 7.45%.

This is the highest that it’s been, since the statute changed.

Tennessee Supreme Court Changes Rule 4 on Service of Process

The Tennessee Supreme Court has issued four orders adopting amendments to various rules of procedure that will go into effect on July 1, subject to approval from the Tennessee General Assembly.

These include changes to the rules of criminal procedure and evidence, but, today, I’m going to talk about how Tennessee Rule of Civil Procedure 4 has changed. Here is a link to the proposed changes. This includes changes to service of process, which is a critical step in any litigation.

On this issue, it’s Tenn. R. Civ. P. 4.04 that is amended, where a plaintiff tries to serve a defendant via certified mail. Specifically, the amendments add a provision that allows for valid service where a defendant “refuse[s] to accept delivery” of the certified mail, as long as the record contains:

a return receipt stating that the addressee or the addressee’s agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.04(11)

The Advisory Commission Comments provide a helpful warning for these situations. They state that “the Postal Service’s notation that a registered or certified letter is ‘unclaimed’ is no longer sufficient, by itself, to prove that service was ‘refused.’ ”

This comment clearly reminds plaintiffs to make sure that the return receipt states “refused” and not “unclaimed.” This distinction is important, since so many defendants simply never go to the post office to pick up their certified mail, because they assume it’s just a lawsuit, demand letter, or some other collection correspondence. This Comment makes clear that a lazy defendant does not submit itself to personal jurisdiction.

Remember, Rule 60 Motions Must be Filed Within One Year

This new opinion from the Tennessee Court of Appeals sets up a nightmare scenario for a prevailing party.

In that case (Reliant Bank v. Kelly D. Bush, No. M2018-00510-COA-R3-CV,  Tenn. Ct. App. Dec. 28, 2018), the Bank won a post-foreclosure deficiency judgment in 2014, after  competing experts testified about the fair market value of the property under Tenn. Code Ann. § 35-5-118. The former homeowners appealed the ruling, which was affirmed in 2016, and remanded. But, on remand, a new Chancery Court Judge was on the bench, and the new Chancellor had a different analysis and partially aside the judgment under Rule 60.02.

On the second appeal, the Judgment was upheld, but talk about snatching victory from the jaws of defeat (or vice versa).

Aside from being a great lesson about the uncertainty and risks of litigation, the 2018 opinion provides some good reminders about Rule 60.02. The Court noted, in part, the following:

Relief under Rule 60.02 is “an exceptional remedy.” Nails v. Aetna Ins. Co., 834
S.W.2d 289, 294 (Tenn. 1992). The rule is intended “to alleviate the effect of an
oppressive or onerous final judgment.” Spence v. Helton, No. M2005-02527-COA-R3-CV, 2007 WL 1202407, at *3 (Tenn. Ct. App. Apr. 23, 2007). It “acts as an escape valve from possible inequity that might otherwise arise from the unrelenting imposition of the principal of finality embedded in our procedural rules.” Thompson v. Firemen’s Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). The movant has the burden of proving the grounds for relief. Spence, 2007 WL 1202407 at *3.

Under Rule 60.02(1), the court may set aside a final judgment for reasons of “mistake, inadvertence, surprise or excusable neglect.” Tenn. R. Civ. P. 60.02. Under Rule 60.02(2), additional reasons for a court to set aside a final judgment are “fraud … misrepresentation, or other misconduct of an adverse party.” Id. But motions based on Rule 60.02(1) or (2) must be filed within a reasonable time, not more than one year after the order was entered. Id.

Ultimately, the Court of Appeals found the new Motion to be untimely.

Because the motion was untimely, the chancery court should not have entertained it. See Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 131 (Tenn. 2013) (concluding that “relief [wa]s not available under Rule 60.02(1)” because the petition seeking relief “was not timely filed”); cf. Rogers v. Estate of Russell, 50 S.W.3d 441, 445 (Tenn. Ct. App. 2001) (“[M]otions under Rule 60.02(1) and (2) must be filed both within a reasonable time and within one year after the judgment or order was entered.”).