Take Care in Drafting Proposed Orders: Otherwise, You’ll Have to Go Back to Court

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.

 

 

 

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New Court of Appeals Case Shows that Courts Will Use Common Sense in Construing a Contract

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.

2018 Nashville Lawyer Memorial Service This Week

A few weeks ago, I was walking to my office after court, and another lawyer struck up a conversation with me while we walked. I’ve known this lawyer since I was a brand new lawyer, and, after talking for a little bit outside his building about the “old-timers,” he invited me to serve on the Nashville Bar Association’s Historical Committee and, specifically, the Memorial Service Committee.

Honestly, I didn’t think much about the invite at first, but, a few days later, I discovered the NBA’s photo archive from the 1970’s. It was so fun to see these lawyers and judges who I’ve known, back when they were young (or younger) lawyers.

Maybe seeing that gave me some perspective, that there’s a rich tradition and history here in Nashville, and how lucky we are to have these photo archives to tell these stories.

And, on a more morbid note, it reminded me that, someday, some new 2030 law graduate will be surfing whatever version of the internet exists and laugh about seeing David Anthony back when he had brown hair.

So, I called the Bar Association and told them, yes, I want on all these committees. We need to preserve these stories and this history, and the memories (and advice) of those who blazed trails for the rest of us.

Last note, the 2018 Fall Memorial Service takes place this Thursday, November 15, at 11:00am. Full details can be found here.

 

Tune in For Ethical Online Marketing at Next Week’s 2018 Law Conference

Real Quick:  I’m scheduled to speak, next week, at the 2018 Law Conference for Tennessee Practitioners, presented by M. Lee Smith Publishers.

This a two day conference, set to take place at the Nashville School of Law. The full agenda can be found here.

My presentation is at 4pm on Thursday, which is the last section of the day. This is a great responsibility, since people are absolutely restless by the last session.

Fortunately, I have an interesting topic: Ethical Online Marketing.

I’ll be talking about the use of social media for lawyer marketing, and I’ll review a variety of ways that lawyers use (good and bad) social media for client development and engagement.

This is generally a fun topic. Terrible blogs, inappropriate tweets, and unwanted friend requests are all fair game.

New Court of Appeals Opinion Reminds Litigants to Plead Facts by Affidavit under Rule 56.06

Disclaimer: I read a lot of appellate opinions that might be, but aren’t always, relevant to something I’m working on. Sometimes, I’ll find a blurb on an issue of law that’s useful.

And, then, as you’ve seen before, I’ll post that blurb here, for my later use. (And, I guess, yours.)

I’ve just read yesterday’s opinion in Bank of America v. Calvin Dee Aycock, issued by the Tennessee Court of Appeals on a detainer action that followed an eviction. The pro se defendants lost in Shelby County General Sessions Court, and then appealed the possessory judgment to Circuit Court. The bank filed a Motion for Summary Judgment under Rule 56.

Ultimately, the Court noted the lee-way that pro se litigants get in proceedings, but the Court found their responses to the bank’s properly supported motion to be deficiency. In short, the defendants didn’t specify and demonstrate material facts in opposition to the bank’s motion.

The Court wrote that:

When a properly supported motion for summary judgment is made, “the nonmoving party ‘may not rest upon the mere allegations or denials of [its] pleading,’ but must respond, and by affidavits or one of the other means provided in [Rule 56 of the Tennessee Rules of Civil Procedure], ‘set forth specific facts’ at the summary judgment stage ‘showing that there is a genuine issue for trial.’” [Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015)] (quoting Tenn. R. Civ. P. 56.06). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

That’s the blurb.

When you oppose a Rule 56 motion for summary judgment, you have limited options in response to the moving party’s facts, under Tenn. R. Civ. P. 56.03. One of those is to “demonstrate that the fact is disputed.” Under Rule 56.06, that means you have to provide those facts via affidavit or some other admissible testimony.

General Contractors, Subcontractors, Subs, and All Those Other Terms

Old habits die hard.

Growing up in Memphis, I knew our local college as “Memphis State.” Then, in 1994, the name changed to “University of Memphis.” But, guess what everybody still calls it? Memphis State.

In 2007, Tennessee’s mechanic’s lien statutes were drastically overhauled. Lots of things changed, but one of the most noticeable was in terminology.

Before 2007, everybody made distinctions between “general contractors” (i.e. those contractors who have a direct contractual relationship with the owner of the real property) and “subcontractors” (those contractors who do not have a direct contract with the owner).

After 2007, those terms changed. Now, the terms are “prime contractor” and “remote contractor.” Tenn. Code Ann. § 66-11-101 (12) and (14) provide those definitions.

The difference in rights is significant.

A prime contractor has a lien that lasts a one year after the work is finished or materials are furnished and  that lien doesn’t require any special demand or lien to be recorded in order to preserve those rights (warning: this is a drastic oversimplification).

A remote contractor has more hoops to jump through and limitations on its lien rights. Tenn. Code Ann. § 66-11-115 describes those “hoops,” which include a requirement to serve a notice of non-payment to all parties (See Tenn. Code Ann. § 66-11-145) and to record a Notice of Lien (See Tenn. Code Ann. § 66-11-112).

So, in the end, just because everybody talks about general contractors and their subs, don’t  think that the change in the laws was purely cosmetic.

 

New Banks Opening in Tennessee is Great News for Creditor Lawyers

Nashville is a hot market right now.  One statistic I’ve seen says that anywhere from 70 to 100 new people move to the Nashville area every day.

And, it’s not just people. It’s also businesses. And banks. Today, the Nashville Business Journal reports that JPMorgan Chase is opening its first standalone branch in Nashville. Earlier this year, PNC Bank announced its own expansion into the Nashville market.

This great news for bank lawyers in Nashville, since more banks means more loans for lawyers to work on (both good and bad loans–we’ll take either).

And, it is particularly good news for Tennessee creditor rights lawyers when a national bank moves into Tennessee. As I mentioned a few years ago, it introduces new assets into Tennessee for garnishments and bank levies.

Like I said in that March 2018 post:

What if the debtor has all his assets in that foreign state, but he banks at a national bank with offices all over the country? And what if that bank has a branch in Tennessee? The answer is that you can levy on that bank account.

So, I say “Welcome” to all these new banks coming to Tennessee.