Category Archives: Uncategorized

01.24.19
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In Order to Be Granted Summary Judgment on a Claim, a Party Must File a Motion

In Chancery Court litigation, when I’m the movant on a motion for summary judgment, I sometimes describe my potential outcomes as “Win” or “Not Win.”

In short, I’m either going to win my case on summary grounds or not, but, as the moving party, I’m not going to lose the case, unless the other side files their own “counter” motion seeking summary judgment.

The Tennessee Court of Appeals issued an opinion yesterday that confirms this, at Adrian Lynn McWilliams, et. al. v. Brenda Vaughn, et. al. (No. E2017-01942-COA-R3-CV,  Tenn. Ct. App. Jan. 23, 2019).

In that opinion, the Court wrote that, when faced with cross-motions for summary judgment, “a court must rule independently on each motion and determine, with regard to each motion, whether disputes of material fact with regard to that motion exist.” Savage v. City of Memphis, 464 S.W.3d 326, 332 (Tenn. Ct. App. 2015) (citing CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn. 2010)). Further, “the denial of one party’s motion for summary judgment does not necessarily imply that the other party’s motion should be granted.” Id. Rather, when considering cross-motions for summary judgment, the court must determine whether each party is “independently entitled to summary judgment.” Id.

To be clear, where one party’s motion for summary judgment is denied does not necessarily mean that the other party is entitled to prevail, even if they filed their own motion. Id. That’s because there are all kinds of factors that go into whether to grant or deny a summary judgment motion.

But, the Court went on to note, where the other side doesn’t file a competing motion, that other, non-moving party is definitely not entitled to an award of summary judgment. Id. In order to be granted summary judgment, you have to be a “moving” party.

So, in the end, keep this opinion handy when you’re preparing for a summary judgment hearing, where the opposing party doesn’t file its own motion. There, it’s a “Win/Not Win” situation for you.

03.22.18
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Advice from a Creditor Rights Lawyer

My law firm doesn’t have associate attorneys. We’re all “Members,” meaning that the typical angry partner/terrified associate relationship doesn’t really exist.

That is great for many reasons, but it stinks for a few others. For instance, I don’t always have a set of hands ready, willing, and waiting to do my overflow legal work. Also, I don’t really have a mentee or protege.

At this point in my career, I really expected to have a mentee.

So, blog readers, over the next few weeks, I’ll be sharing my wisdom on the practice of law here.  Follow along if you’d like to learn from my 18 years of hassling debtors, opposing counsel, and court clerks.

10.27.17
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Court of Appeals Issues Friendly Ruling in Lawyer Malpractice Matters

The Tennessee Court of Appeals recently tackled an interesting issue of when a client “discovers” a lawyer’s malpractice.

The opinion is Mark Thomas v. Richard Myers, No. W2016-02581-COA-R3-CV (Tenn. Ct. Apps., Oct. 19, 2017).

The most interesting aspect of the case is that the lawyer’s defense, basically, admitted malpractice:

Q: And you were aware that you had lost, for lack of a better term, big
time, a lot of money.
A: A great deal of money, yes.
Q: And you were aware that the evaluation by Richard Myers was
wrong.
A: Yes.
Q: And you were aware that Richard Myers’ deceptions as to what a
great case this was was wrong.
A: Yes. Yes.
Q: And you were aware that Richard Myers’ negligence and
misrepresenting to you what the law was, what the facts could be
presented as, and your great position in this lawsuit was wrong.
A: Yes.
Q: And you were aware on that day that he was not being truthful about
the odds of winning.
A: Yes.
Q: And you were aware on the day that whatever risk outline he had
given you, be it little, small, or none, was wrong, because the reality
was you’d had a judgment rendered against you, so you knew he had
misled you and deceived you.

A: Yes.

But, as a legal matter, the defense relied on the “discovery rule” to argue that, despite the lawyer “explaining away the loss” and saying that they’d ultimately win on appeal, the client “discovered” that he suffered an injury on the day that the adverse judgment was rendered at the trial court.

So, again, despite continued assurances from the lawyer that they’d win on appeal, the one-year statute of limitations for malpractice actions starts on the day of the adverse judgment. “At that point, the client is aware of the fact of injury.” Yikes.

This is an interesting decision, that clients will hate, but lawyers will love.

 

09.28.17
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Tennessee Post-Judgment Rate is at (New) All Time High

More than four years ago, I complained about the (then) new post-judgment interest rates in Tennessee. Long story short, the interest rate on judgments in Tennessee used to be a clean, easy 10%. Under the new version of Tenn. Code Ann. § 47-14-121, judgments accrue interest at a variable rate, that could change every 6 months.

One of my complaints was that it’s so difficult to figure out what the rate is at any time, but, luckily, the statute requires the administrative office of the courts to publish the applicable rate.

So, today’s post is to notify you of this: As of July 1, 2017, the rate is as high as it’s ever been, at a whopping 6.25%.

02.28.17
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How “Foreign” Can a Foreign Judgment be and still be Entitled to Domestication?

In an earlier post, I noted that judgments aren’t enforceable across state lines. To enforce such a judgment, the creditor has to “domesticate” that judgment, which requires that a second action be filed in the new state to recognize the out-of-state judgment. This judgment is often referred to as a “foreign judgment.”

But, what about the really foreign judgments, i.e. the ones from other countries? Can those be enforced in state courts?

The short answer is: “probably.” Pursuant to the Uniform Foreign Money-Judgments Recognition Act, judgments obtained abroad may be enforced in the U.S. See 13 U.L.A. 261.

Under this Act, the process follows the Enforcement of Foreign Judgments Act in many ways. Keep in mind, however, that the Act specifically states that it’s a different process, so read the Act and update your forms accordingly.

Some quick tips are: (1) The party seeking to enforce the judgment has the burden of proof regarding the validity and application of the Act; (2) The party opposing the domestication has the burden of proof of any basis to assert non-recognition; and (3) The statute of limitations applicable to the original judgment applies and, if there is no statute of limitations, then the judgment becomes unenforceable after 15 years from the original effective date.

 

12.06.16
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Want to Avoid Garnishment of Your Wages? Find a Job Where You are Paid in Cash Tips

Judgment debtors with non-traditional employment are always a headache to collect from. This includes self-employed people, independent contractors, and people who work for tips.

Here, I’m talking about waiters, valets, and anybody else who may earn a nominal hourly rate, but the bulk of their income comes from tips or gratuities. How do you garnish $5 in cash handed to a valet?

In Tennessee, you can’t. The Tennessee Court of Appeals recently considered the issue of whether tips reported by the Garnishee’s employees are to be included in the calculation of disposable earnings for the purposes of garnishment in determining the withholding under the garnishment statute, Tenn.Code Ann. § 26–2–106.

This case was Erlanger Med. Ctr. v. Strong, 382 S.W.3d 349, 351 (Tenn. Ct. App. 2012). In that case, the judgment debtor was a server at Shoney’s.  In deciding whether tips could be garnished, the Court looked at how “wages” was defined in Tenn.Code Ann. § 26–2–102 (which suggested that tips are included), but the Court went on to note that federal law excludes tips from garnishment because tips “do  not pass to the employer.”

This makes sense, because how can an employer withhold 25% of funds that it never has control over?

As a result, a judgment debtor whose primary income comes from tips and gratuities (that do not pass through the employer’s hands) may be able to escape garnishment.

But, where the tips are paid via the employer, there’s still a chance that those funds can be captured. Since at least 75% of restaurant transactions are paid via credit card (including payment of tips), there’s a strong argument that such tips could be garnished if the employer disbursed those tips in the form of a paycheck.

08.25.16
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Attend the Creditors Practice Annual Forum 2016, Learn Foreclosure in an Hour!

On September 28, 2016, some of the greatest creditor minds in Nashville will gather for the Creditors Practice Annual Forum 2016. Yes, I’m talking about foreclosures again.

Topics to be covered include:

  • Perfection and Enforcement of Liens for Prime and Remote Contractors
  • Non-Judicial Foreclosures in Tennessee
  • Ethical Issues Related to the Consumer Financial Protection Bureau
  • TBA Special Committee on the Evolving Legal Market Report

I’ll be presenting the Foreclosures portion of the seminar, which will give a one-hour overview all the laws, defenses, and issues facing lenders conducting foreclosures in Tennessee.

This should be a good seminar, so be sure to sign up to attend the live presentation, or use some of your free CLE credits from your Tennessee Bar Association membership to watch it online.