My first job as a lawyer was on Second Avenue in Nashville.
This was in 1999, and my future boss had me come to the office to interview on a Saturday morning (partly to avoid the suspicion of the lawyer I would be replacing).
At the time, I didn’t know much about downtown Nashville, since most of my trips to Nashville were either to Opryland as a kid or driving on I-40 on the way to law school in Knoxville.
I had clerked one summer in Nashville at the Tennessee Attorney General’s office, but, back then, Second Avenue didn’t have much to attract folks in their mid-20s. In 1999, the vibe was Gatlinburg-esqe, with a Hooters, Mere Bulles, Graham Central Station (three stories of bars, each with a different theme), a palm reader, The Wild Horse, and other tourist-centric places that catered more to out-of-town grandparents.
I got the job, and I spent about 8 years on Second Avenue. A lot changed during that time.
Before Fan Fair moved downtown, the big show was Dancin’ in the District, which was set up in Riverfront Park. My office window was a perfect vantage for these shows; I saw Kanye West (with a then unknown John Legend on the piano), the Strokes, and many others, from about 500 feet away. It’s strange to think about all the big-time, national acts that performed at these free concerts to such relatively small audiences. Part of that, of course, was that, back then, hardly anybody wanted to go downtown.
In fact, in the early 2000s, that lack of “busy-ness” was part of what I loved about downtown Nashville. On a Friday night, we’d hit 6-7 Broadway honky tonks (generally via the back doors in the Ryman alley) looking for any bars with a crowd, which we rarely found. Needless to say, there were no “all points” pedestrian crossings downtown in 2005.
As a lawyer, there was always a bit of unease about being in a “Second Avenue” office, especially as that part of downtown started to take shape as an entertainment district. The tallest building on Second Avenue was 4 stories high, and no white collar firms would dare move in next to a karaoke bar.
Things really got bad in 2005 when Fan Fair became CMT Fest and moved downtown. During this all-day and all-night music festival, my very serious lawyer phone calls were always at risk of interruption by country music and–definitely worse–the pre-show sound checks at the “River Stage” in Riverfront Park (generally, 5 second snippets of Rod Stewart’s “Do Ya Think I’m Sexy,” played over and over and over in the days before the festival).
The CMT Fest move was a spark for downtown’s growth. Before that, people just didn’t go downtown at night. There was wasn’t much to do and not much interest in what there was. This single event showed 50,000 folks (and countless others watching on TV) how awesome the historic downtown venues were.
This process was accelerated in 2010, when the Nashville Flood hit, and the buildings on Second Avenue flooded and many were then sold and renovated for new uses. Nashville’s overall recovery from the Great Recession was far quicker than other cities, and the rebuilding (and, yes, the developer opportunities) resulting from the devastation of the flood caused a rapid growth in downtown property investment and in tourism.
And, out of nowhere, people saw downtown Nashville not just as a “night out” option, but as a vacation destination. Maybe it was the TV show, but, in 2014 or so, you couldn’t even get in the door (front or back) at the old honky tonks. And, where there’s a happy tourist, there will be no shortage of a honky tonks willing to sell them a $6.50 Coors Light. As a result, dozens of new bars took over any available spaces downtown. Tootsies even built a new Tootsies on top of the old Tootsies.
Soon, all the Second Avenue lunch places and the ground-level offices were turned into bars and gift shops, while the upstairs offices were converted into condos and, later, AirBnBs.
In fact, in 2015 or so, the new owners of my old office building converted it into a residential condo building with a tourist-centric snuff shop on the ground floor.
I moved to a different firm in 2008 on the “business” side of downtown, and, personally, got married and had kids and just stopped going downtown very much–if ever–at night. When I did go downtown, I was always amazed at the crowds. Just an oppressive amount of people that, frankly, made me wonder who all these people were and where they came from.
Locals began to avoid downtown, and local media had fun mocking the bachelorettes and references to the “It City.” It became a sort of estranged relationship, and that always made me sad to see.
The Nashville bombing on Christmas morning was a tragedy on all levels. A senseless, terrible act that risked many peoples’ lives and absolutely destroyed their homes and businesses. Some of the businesses destroyed–like Old Spaghetti Factory and The Melting Pot–had been there when I walked to that first job interview in 1999.
Both had held on through all of the ups and downs on Second Avenue and three different recessions, and then this happened.
As I watched the news coverage all day on Christmas, I’d see my old office building, with broken windows and blown open doors. It made me profoundly sad, as a human being and as a resident of Nashville. These buildings on Second Avenue are part of our city’s history, having made it through thousand-year floods, fires, and wars.
And, maybe this is just typical New Year’s Eve sentimentality talking, but I’m also sad on a personal level that the Second Avenue that I first visited 20 years ago is gone and most likely will never come back.
The entire city of Nashville has changed so much in the past 7-10 years, and it sometimes feels like, if you don’t drive down a certain street for a few months, that, when you do, you’re going to see something old gone and something new being built, whether it’s downtown, Music Row, or even far away places like Madison. There hasn’t been an end in sight, and the Nashville Post must be running out of ways to report that the old “price per square foot” real estate sale records get broken on a monthly basis.
Maybe my broader sadness for Second Avenue is a feeling of loss over the city that I first moved to, over that office I was sitting in when that jerk opposing counsel yelled at me, or the places Lena and I went when we were dating. (Cue the Dan Fogelberg music now.) Maybe it’s a bit of maudlin loss for that version of me who walked cautiously past the Lazer Tag place while rehearsing for that job interview. Maybe it’s sadness that we live in such a divisive world where somebody felt compelled to bomb a building for political reasons.
I’m hopeful that these old buildings can be saved. At the same time, I’m also a realist, and I remember all the day-to-day structural and mechanical issues that arose in that 150+ year old building that I worked in. In my old conference room, the floor was so un-level that, if you lifted your feet off the ground, your chair would roll to the side.
If that’s the case, then, I hope this isn’t just another in a long line of disasters to hit Nashville and lead directly to investors’ property-prospecting and redevelopment. I hope our city leaders do what they can to protect the character. I’m hopeful that, instead, our state and federal governments will offer aid to the businesses and people affected.
I’m hopeful that, whatever happens on Second Avenue, that there aren’t a row of glass fronted condos and high rise offices there someday. I hope it’s never shiny or, worse, fancy.
I hope that Second Avenue comes back strong and serves as a vibrant rebuke to this despicable act. And, when it does, I hope that it preserves some of that unique charm that it’s had all these decades.
I hope it never becomes a place where big law firms want to move to.
But, what about other types of long-term service contracts? Is the service-provider entitled to compensation for both past-due amounts and future contract payments coming due, regardless of whether they can find a “replacement” customer?
This exact issue is presented in three new lawsuits that were filed in mid-December in Davidson County. In the lawsuits, a commercial linen company (i.e. napkins, aprons, bar towels, mats, etc.) sued three Nashville restaurants for breach of the linen rental agreement. In all, the actual past due amount wasn’t that much–instead, the lions share of the requested judgment was for damages for the remaining months of the contract, which this particular agreement. Under this agreement, the provider could recover “60% of the weekly service charge for the unexpired term” as its future damages.
For instance, in the lawsuit against Woolworths on 5th, the restaurant had an actual overdue balance of just $1,430.11. But, after applying the damages clause, the rental company is asking for a total of $77,440.60, which includes 60% of the not-yet-due amounts owed over the 60 month service agreement.
This seems a bit unfair, right?
These types of damages are known as “liquidated damages.” When the actual amount of damages under a contract are uncertain and difficult to calculate, these provisions are agreed to by the parties at the time the contract is signed to provide certainty and establish a method for calculating those damages.
With real estate, it’s really easy to calculate damages —how long was the property vacant after the breach? With longer-term service contracts, it’s more difficult–what expenses and costs did the service provider not incur by not having to provide the linen?
In Tennessee, a liquidated damages clause will be generally be allowed unless the challenging party proves that the provision is really just a penalty and/or designed to punish the breaching party. Tennessee law does not favor penalties, and, if it’s a close call, Tennessee Courts will be inclined to disallow the penalty. Testerman v. Home Beneficial Life Insurance Co., 524 S.W.2d 664 (Tenn.App.1974). In short, a liquidated damages provision should be somewhat reasonable in relation to the possible injury suffered and not unconscionable or excessive.
More recent Tennessee cases tend to favor allowing parties to a contract the freedom to agree to whatever business deal they want, even it’s an awful deal with a fairly onerous damages provision. See Guiliano v. Cleo, Inc., 995 S.W.2d 88, 101 (Tenn.,1999). “‘The bargain may be an unfortunate one for the delinquent party, [but] it is not the duty of courts of common law to relieve parties from the consequences of their own improvidence.’” Id.
This will be interesting to watch. Sure, damages at 60% of the remaining term sounds really high, but maybe that’s representative of the expected profits in the linen rental industry. If it’s close, a Tennessee court will allow this.
Some people have told me that 2020 was a strange year to start my own law firm, and I tell them that I wished I’d done it sooner. Or, at the very least, while there was some Paycheck Protection Program money available…
I’ll steer clear of the optics of the city’s largest and most prestigious firms getting such large payouts. I mean, c’mon, it’s free-ish money and complicated paperwork. That’s sort of a lawyer’s super bowl, right?
All kidding aside, I am confident that all these law firms also instituted financial austerity measures, hiring freezes, and other cost-saving measures to account for the new economic reality and, further, many plan to return most, if not all, of the funds.
And it isn’t just Nashville firms dealing with all this. These are questions law firms all over the country are getting.
To the critics, I guess I’d remind them that law firms are businesses too, with actual employees and vendors and landlords. The fact that these are “big” law firms doesn’t mean that they don’t need financial assistance any less than a small or solo shop.
And, per today’s news, Boies Schiller Flexner (the big New York firm that received $10MM in PPP funds) announced it was offering a $20,0000 “welcome” bonus for new associates.
Similarly, in today’s Nashville Post, I’m seeing that one of our local big firms at the top of the PPP list announced a bevy of new lawyer hires. So, maybe things are turning around, and the next story will be about how firms are paying it back.
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…
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.
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.
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”?
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.
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?
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?
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.)
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.)