To Recover Attorney’s Fees in Tennessee, You Have to Be Express and Exact in Your Contract

We’ve talked about this before: Tennessee is a great, creditor-friendly state, but, if you want to recover your attorney’s fees in Tennessee, you’d better have some very specific language in your contract.

The Tennessee Court of Appeals filed an opinion last week as a reminder, at Nyrstar Tennessee Mines-Strawberry Plains, LLC v. Claiborne Hauing, LLC, Tenn. Ct. Apps, No. E2017-00155-COA-R3-CV.

Here is the contract provision the Court considered:

The Customer must pay Nyrstar all costs and expenses incurred by Nyrstar in connection with enforcing its rights against the Customer under an Agreement including legal expenses and other costs incurred in recovering monies owed by the Customer to Nyrstar.

By my read, “all costs and expenses,” along with “including legal expenses,” should be good enough.

The Nystar Court disagreed. That text does not say “including reasonable attorney’s fees.”

As a result, “The provision at issue does not specifically or expressly create a right to ‘fees,’ ‘attorney’s fees,’ or ‘reasonable attorney’s fees.'” Further, ““the term ‘expenses,’ without more, . . . does not include an award of attorney fees.”

As a result, “[t]he language in the contract before us is not sufficient for Nyrstar to be  entitled to recover its attorney’s fees. The provision at issue does not expressly or  specifically create a right for Nyrstar to recover its attorney’s fees.”

So, if you want to recover attorney’s fees in Tennessee, you’d better say exactly that in your contract–that the prevailing party shall be entitled to recover its attorney’s fees.

The Ethical Implications of How You Obtain Evidence: Avoid “Pretexting” (And Also Everything Else Harvey Weinstein Did)

This week, the New Yorker ran an article, “Harvey Weinstein’s Army of Spies,” which talked about the ways that the embattled movie producer investigated the women making sexual harassment claims against him.

One of the stranger aspects, however, is that he used his lawyer, David Boies, to employ these investigators, who later pretended to be victims in order to gain the trust and sympathy of the targeted victims.

Sure, we can be appalled at the extreme measures employed, but, when his lawyer puts his signature on any aspect of it, it becomes even more troubling.

This blog isn’t about Harvey Weinstein-level counter-intelligence, but this type of thing occasionally comes up in real life law practice, particularly in domestic relations.

This is referred to as “pretexting,” and it involves some sort of ruse or deception to obtain information. Frequently, it will entail the creation of a fake social media accounts to “friend” or communicate with a witness or opposing party.

This is unethical behavior and, in Tennessee, violates the Rules of Professional Responsibility. Rule 4.1 provides that “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” In addition to lawyer professional disciplinary proceedings, such actions can result in criminal or civil liability under the Gramm-Leach-Bliley Act and other mail/wire fraud statutes.

But, let’s be clear: Information that a person publicly posts online is perfectly ripe for the taking and use, including public posts and pictures. Similarly, information that a person privately posts but which a party has knowing permission to access can also be used.

The key is that a lawyer–or an investigator working for the lawyer–should not use deception or lie in order to obtain that access.  But, short of that, if it’s out there and it’s useful, download it, copy it, save it, and use it.

As an aside–and totally appropriate for this topic–I’ll be presenting the topic “Ethical Issues: Using Social Media/The Evidentiary Role of Technology,” at the Family Law Conference for Tennessee Practitioners in December 2017.

 

 

Davidson County Circuit Court Judges Enter Order to Review Writs of Restitution in Detainer Appeals

I posted a few years ago that a losing defendant in a detainer action isn’t required to post the “possessory” bond provided at Tenn. Code Ann. § 29-18-130(b)(2) in order to have a valid appeal.

While courts were split for years on this issue, the Tennessee Supreme Court’s December 2013 decision in Johnson v. Hopkins answered this question for good.  In short, the defendant who fails to post the possessory bond still has a valid appeal, but the defendant has no protection from a Writ of Restitution while the appeal is pending.

In Davidson County Circuit Court, if a general sessions detainer judgment was appealed without that bond, the Court Clerk’s website actually had a form that would allow the landlord to immediately issue a Writ, no matter if the appeal was still under consideration.

And, as you might suspect, that’s a big deal, since what’s the point of fighting the landlord’s eviction if you’re not going to stay in the premises? My guess is that it wasn’t a matter of strategy, but, instead, an issue of ignorance by the litigants about how detainer appeals work.

I also know, from my experience, that it’s a quite a surprise when an appealing defendant discovers this mistake…which used to happen when the Sheriff showed up to execute on the Writ with movers in tow.

Potentially in response to this, the Judges of the Circuit Court recently entered an Order entered on February 24, 2017 that, for any Writ of Restitution filed with the Clerk while an appeal is pending, the Clerk must set a review hearing on the Writ before issuance of the Writ.

This is an interesting practice, that’s not based on the statutes or rules of procedure. I’d bet it’s based on the Judges getting sick of dealing with the frantic motions to quash filed after the Sheriff shows up at somebody’s door. All in all, it’s a good, practical procedure.

 

 

 

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.

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.

Attorneys Fees Can be Recovered in a Tennessee Lawsuit, but only if the contract or statute allows them

I always tell clients that Tennessee is a creditor friendly state, and it is. But, just because it’s fair to creditors, that doesn’t mean a Tennessee Court will give a plaintiff everything.

I’m talking today about attorney fees. The general rule in Tennessee is that, unless you have an agreement in writing that you are entitled to recover your attorney fees, a court will not award those fees to you.

Here’s why: Tennessee follows the “American Rule” on awarding attorney’s fees which states that “a party in a civil action may recover attorney fees only if: (1) a contractual or statutory provision creates a right to recover attorney fees; or (2) some other recognized exception” applies. Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).

The contract provision allowing attorney fees to be recovered has to be very specific. In the Cracker Barrel case, the contract at issue provided that the prevailing party should recover “all costs and expenses of any suit or proceeding.” The Tennessee Supreme Court held that this language was not specific enough to award attorney fees (instead, it allowed recovery of court costs and litigation expenses).

This is an important issue, as the ability to recover your expenses and costs as part of your action will be a big consideration in any decision to file a lawsuit. Lawyers are expensive. Keep that in mind on the front end, when you’re preparing a contract or agreement, and get very specific text allowing for recovery of attorney fees.