Grabbing a Tiger by the Tail: How the Taylor Swift Litigation Shows that Some Lawsuits Aren’t Worth Filing

Sometimes, it makes sense not to file a lawsuit, even if you have good claims, where there’s no easy victory and the lawsuit will ultimately cost more in time, legal fees, and distraction than you’ll ever recover.

We’re seeing a possible example of this with the lawsuit filed by Radio DJ David Mueller against Taylor Swift.  Mueller alleges that a false accusation by Taylor Swift to his bosses led to him getting fired. In the lawsuit, Taylor Swift quickly filed a counterclaim, alleging assault and battery while they posed for this picture.

If you’ll pardon the pun, this plaintiff has grabbed a tiger by the tail.

By filing this lawsuit, he stepped into near-certain litigation involving a motivated, deep-pocketed opponent who will put up a relentless fight in a lawsuit with no clear facts. In this case, there’s no easy victory and, worse, there’s no easy middle ground.  It’s his word versus her word, a fight over principle, and litigation like that is always expensive and impossible to settle without a jury (or judge) deciding who is right.

I recently had a very good client come to my office, with a new lawsuit for me to pursue. The facts were messy, with emotional claims on each side, with no clear facts showing either side was clearly right, and with no way to recover the attorneys fees if we won.

In the end, my best advice was to avoid the stress, expense, and distraction of waging this fight over a fairly small amount of money, even though I was confident we’d win in the end. In discussing emotional disputes, one my most respected law partners, Ed Yarbrough, once said, “If the client says it’s all about the principle, then I have no interest.”

Sometimes, the best way to win a fight is to know which ones aren’t worth fighting.

Why I Volunteer at Legal Aid

Last year, I spent all day on a Sunday in the outer reaches of Nashville, building a house for Habitat for Humanity. I don’t know much about building a house, roofing a roof, or using a nail gun. In fact, what I know about nail guns, I learned from a Bruce Willis action movie. Needless to say, I was not having a good time that day.

Even though it felt good to be volunteering and doing good in a general sense, it felt weird to be wasting time and destroying construction supplies on a table saw.

So, on that hot Sunday, I decided to not volunteer at any more construction jobs, and, instead, devote my time in a way that emphasizes my most valuable assets–my legal knowledge.

Since then, I’ve routinely volunteered at the Legal Aid Society of Middle Tennessee and the Upper Cumberlands.  I’m lucky to be really busy at work, and so I don’t volunteer as much as I could.

But, Legal Aid makes it easy: They offer free legal aid clinics at various times, days, and locations every month, and the commitment for volunteer lawyers is generally only a few hours at a time.

I know, I know–I’m basically telling you about the easiest, lease time-intensive way to help, but that’s a also good thing. A little bit of help goes so far. They need help staffing these clinics, and, in two hours, a lawyer can help 3-5 people who had been hopelessly lost in the legal system.

So, if you’re reading this blog and I’ve saved you any time researching a legal question, I have one request: Take that time saved and denote your time to your local legal aid clinic.

Elements of Negligent Misrepresentation in Tennessee

Disclaimer: As much as I love educating blog readers about the law, sometimes, I use this site as a notepad for myself on legal issues.

Frankly, I can’t tell you how many times I think to myself–in court–“I’ve blogged about that,” and then use the “Search” box on this blog to look a citation/issue up.

So, real quick, here’s a good guide to the elements of “negligent misrepresentation” in Tennessee, as stated in a recent Tennessee Court of Appeals case,  Jerry Faerber, et. al. v. Troutman & Troutman, P.C., et. al., No. E2016-01378-COA-R3-CV, May 23, 2017.

In order to state a claim for negligent misrepresentation, the plaintiff must establish by a preponderance of the evidence that:

  • the defendant supplied information to the plaintiff;
  • the information was false;
  • the defendant did not exercise reasonable care in obtaining or communicating the information; and
  • the plaintiff justifiably relied on the information.

See Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011).

Negligent misrepresentation occurs when:

  • a defendant, acting in the course of his or her business, profession, or employment, or in a transaction in which she has a pecuniary interest, supplies faulty information meant to guide another in his or her business transaction;
  • the defendant fails to exercise reasonable care in obtaining or  communicating information; and
  • the plaintiff justifiably relies upon the information provided by the defendant.

See Robinson v. Omer, 952 S.W.2d 423 (Tenn. 1997)

“Justifiable reliance in [the] context [of negligent misrepresentation] is not blind faith.” McNeil v. Nofal, 185 S.W.3d 402, 408 (Tenn. Ct. App. 2005). The defendant is liable “only to those, whether in contractual privity or not, for whose benefit and guidance the information is supplied.” The information may be either direct or indirect. In that regard, the foreseeability of use is critical to liability. John Martin Co., Inc. v. Morse/Diesel, Inc., 819 S.W.2d 428, 431 (Tenn. 1991)

“[T]he usual measure of damages in a negligent misrepresentation action is the benefit of the bargain rule, that is, the difference between the actual value of the property received at the time of the making of the contract as compared to the value if the representations had been true.” Cary v. Evans, 1986 WL 6642, at *3 (Tenn. Ct. App. June 12, 2986) (citations omitted).

Ok, so this isn’t the most interesting blog post I’ve ever done, but, trust me, I’m going to search for “negligent misrepresentation” at least ten times.

 

 

 

To Renew a Tennessee Judgment, the Motion Must be Filed Within the Ten Year Period

A quick follow-up to my discussion of Rule 69.04 and renewal of judgments in Tennessee.

A few of you e-mailed me to ask about the timing of filing a motion to extend the judgment for another ten years. Specifically, does the motion have to be granted in the ten year period, or is it enough to simply file the motion during the ten year period?

The answer is contained in Rule 69.04.

As long as a motion to extend is filed “[w]ithin ten years from entry of a judgment,”  a judgment creditor may “avoid having the judgment become unenforceable by operation of Tenn. Code Ann. § 28-3-110(a)(2).” See Tenn. R. Civ. P. 69.04 Advisory Comm. cmt. to 2016 revision.

Also, look at In re Hunt, 323 B.R. 665, 669 (Bankr. W.D. Tenn. 2005), which says “it is not essential that the debtor receive these pleadings within the ten-year period, only that the renewal pleading be filed within that time.”

To be clear, it’s my interpretation that Tenn. R. Civ. P. 69.04 does not require the order extending the judgment for the additional ten-year period to be entered within ten years from the entry of the old judgment. But you have to file that Motion to Renew before the ten years expires.

New Version of Rule 69.04 Makes Renewing a Tennessee Judgment Easier

A few months ago, I warned you all that Tennessee judgments are only enforceable for ten years and, if you have a file of uncollected judgments, you might need to check your drawers.  If you do a lot of creditors rights law work (like me), then you have about ten drawers full of unpaid judgments, so this is a big deal.

The Tennessee legislature may saw this issue coming, because, in 2016, they simplified the process by which a judgment creditor can renew (extend) the life-span of a judgment. The revisions to Tenn. R. Civ. P. 69.04 provide that the creditor:

Within ten years from the entry of a judgment, the creditor whose judgment remains unsatisfied may file a motion to extend the judgment for another ten years. A copy of the motion shall be mailed by the judgment creditor to the last known address of the judgment debtor. If no response is filed by the judgment debtor within thirty days of the date the motion is filed with the clerk of court, the motion shall be granted without further notice or hearing, and an order extending the judgment shall be entered by the court. If a response is filed within thirty days of the filing date of the motion, the burden is on the judgment debtor to show why the judgment should not be extended for an additional ten years. The same procedure can be repeated within any additional ten-year period.

So, long story short, now, it’s done by Motion and without the prior “show cause” process used in the past (and, notably, in the same case docket as the original action).

The Tennessee Court of Appeals discussed this new process in a recent opinion, at Trina Scott v. Sharfyne L’Nell White, No. M2015-02488-COA-R3-CV, July 14, 2017).  You’ll note that the underlying matter in this case was decided prior to 2016, but Judge McBrayer (himself, once a well known debtor-creditor lawyer) discusses both the new and old laws in issuing the opinion.

 

 

 

Read The Rules. Know The Rules. Start with Tenn. R. Civ. P. 54.02

When I first started practicing law, my mentor was a procedure savant. He knew the Rules of Procedure inside and out. In turn, I eventually learned the Rules.

That’s my single biggest piece of advice for any litigation attorney: Know the Rules of Procedure. If you’re in state court, read the Tennessee Rules of Civil Procedure. Before you go to court, read that county’s Local Rules.

The key to success at anything is knowing the rules. Sports. Checkers. The practice of law. A strong, working knowledge of the rules of procedure puts you ahead of 85% of your fellow lawyers.

Recently, while reading a  Tennessee Court of Appeals opinion about final judgments and appeals, I was reminded of a lesson my old boss taught me about Tenn. R. Civ. P. 54.02.

Rule 54.02 applies in cases where are multiple parties and multiple claims for relief, but a party is able to resolve its claims as to part of the litigation. In that circumstance, Rule 54.02 allows the trial court deem the judgment as to that part of the case “final,” which means that the party’s appeal deadlines start to run and, more importantly, the plaintiff can proceed with collection on the judgment as to that party.

But, you don’t get Rule 54.02 relief unless you think to ask for it. Under the Rule, you have to (1) specifically request that the judgment be “final” and (2) use magic language by which the Court makes an “express determination that there is no just reason for delay” and an “express direction for the entry of judgment.”

The case I cite above is interesting, because the Judgment that was appealed included the Rule 54.02 magic language, but the Court of Appeals denied the appeal as premature, because there was still one loose end (the assessment of attorney fees). It’s interesting (and re-assuring) to see the appellate court look at substance over form.

Even though Rule 54.02 led this attorney astray, don’t forget to include that text in your Judgments. It’s most powerful when you have the chance to take a judgment against one liable party early in the case, but one of the other defendants shows up and contests his own liability. In that scenario, while you’re litigating the matter against one defendant, you can commence execution and collections on the other, without waiting until getting all the claims resolved.

Quantum Meruit: How You (Sort of) Sue for Breach of Contract in Tennessee, When There’s No Written Contract

When you’re buying, selling, lending, or anything else in between, take the time to prepare a written agreement, spelling out the terms of what you’re agreeing to do and of what the other side is agreeing to do in exchange.  Get it in writing and get it signed.

Everybody knows this, but, regardless, sometimes you don’t get it in writing. Maybe the deal is rushed. Maybe you think it’s such a clean transaction that it doesn’t need to be complicated by a written agreement. (By the way, this advice applies for lawyers and engagement letters–oh boy, have I learned that lesson.)

Where there’s not a written agreement, you don’t have a “contract” claim against the other side; you have what is called a “quasi-contract” claim. Instead of suing under a contract, you’re suing under equity–it’s not fair for the other side to benefit from your performance.

The theory is referred to as “quantum meruit” or “unjust enrichment.” The Tennessee Court of Appeals very recently revisited the elements of a Tennessee quantum meruit claim. The Court stated:

Under a quantum meruit theory, a party may recover the reasonable value of goods and services provided to another if it demonstrates that:

(1) There is no existing, enforceable contract between the parties covering the same subject matter;

(2) The party seeking recovery proves that it provided valuable goods or services;

(3) The party to be charged received the goods or services;

(4) The circumstances indicate that the parties to the transaction should have reasonably understood that the person providing the goods or services expected to be compensated; and

(5) The circumstances demonstrate that it would be unjust for a party to retain the goods or services without payment.

In the end, even without a written agreement, equity will dictate that a party should recover the value of the goods or services from a non-paying party.

Because there’s no contract, however, you lose the typical “contract” protections, like attorney fees, interest, and, frankly, the certainty of being in control over the terms of your deal. Take the time on the front end to document your deals; as a result, you’ll save time and money on the back end, arguing over what each party claims the terms of the deal were.