Great Reference for Lease Drafting

Here's a great resource for use when drafting leases. It was prepared by Nashville attorney, C. Dewees Berry, IV:
http://tnrelaw.blogspot.com/p/avoiding-lease-drafting-pitfalls.html

Default Judgments and Service by Mail

Tennessee allows service of process by certified mail. This method may seem attractive, at first blush, due to its convenience and low cost. As a practical matter, however, a prescient defendant may well refuse to accept the mail in an attempt to thwart service, delaying the litigation. Also, a plaintiff who truly wishes to engage a defendant in a dispute may send a certified mail service only to get it returned as “undeliverable.” In such cases, will the plaintiff have anything to show for her attempts at service? As all good attorneys are trained to respond, it depends.

The Tennessee Rules of Civil Procedure (“TRCP”) contain special provisions for Tennessee residents and out-of-state residents. TRCP 4.04(10) covers Tennessee residents. It grants that service by “registered return receipt or certified return receipt mail” is valid service so long as plaintiff can provide a “return receipt showing personal acceptance by the defendant” or another person allowed by the rules. Such service will support a default judgment if the defendant does not then respond. However, without the return receipt, a default is not proper.

The rule for an out of state defendant is very different. Service by mail is, again, allowable. However, there is no requirement that the defendant actually sign the receipt. Under TRCP 4.05(5), the letter can be returned “unclaimed” or refused delivery and the service is still valid. The return must be filed in the clerk’s file and if so, it can be proper service for purposes of default.

In Hines v Tilimon, (Tenn. Ct. App. 2001), an out-of-state father was on the losing end of a default judgment granting custody of his children to the mother. Service of process upon the father was based on TRCP 4.05(5). On appeal, the father challenged the constitutionality of the service which argument was rejected on procedural grounds. (The father would have had to notify the attorney general while in the trial court so that the attorney general could defend the constitutionality of the Rule). Nonetheless, the Appeals Court found that the Rule not “so obviously unconstitutional on its face" as to warrant consideration of the constitutional issue. Thus, the father lost custody of his children based on not responding to his mail. It could have been different had he only been a Tennessee resident.

Service on a party while in court - Georgia law

Sometimes, it's tempting to serve someone when she is known to be coming to court for another matter. This is usually not permitted, but there are exceptions.

Generally,

a suitor or a witness in attendance upon the trial of any case in court, is privileged from arrest under any civil process, and is exempted from the service of any writ or summons upon him or them while in attendance upon such court, or in going to or returning therefrom.

Steelman v. Fowler, 234 Ga. 706, 217 S.E.2d 285 (1975).

            There are two exceptions.  First, “it does not apply to criminal defendants or nonresidents, who are in this state temporarily ‘for some purpose other than to appear in court as a party or witness.’”  Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007) citing Ausbon v. Ausbon, 131 Ga. App. 530, 531, 206 S.E.2d 546 (1974). 

            Second, it only protects “a party in attendance upon the trial of a case from service of process in a new action.” Blalock v. Blalock, 247 Ga. 548, 550, 277 S.E.2d 655 (1981).  For instance, a party suing for contempt could be served in court with a modification of custody matter which was actually a part of the same matter.  Id.

            In Loiten, the defendant appeared at trial to contest a restraining order entered against him ex parte for which he was not properly served (he received the order but not the petition).  At the hearing, the trial court asked him to waive service which he refused.  The court then instructed the sheriff to serve the defendant in the parking lot.  On appeal, the service was found to be ineffective.  Id. at 638.  The court held that although an ex parte hearing had been previously had, the matter was new to the defendant and therefore he was protected by the Steelman rule.

Credit Card Authorization Template

It's good practice to have authorization to charge a client or customer's credit card written into your contract. Here is a sample template:

PAYMENT WITH DEBIT OR CREDIT CARD:

I the undersigned hereby agree to pay the indebtedness incurred by _________________ for the services rendered by Business. I hereby authorize Business to charge my credit card on file for any balance remaining on the above client’s account if not timely paid in full.

__________________            Date:______________________

Signed

Name:

Address:

Phone Number:

Credit Card Type:

Credit Card Number:

Expiration Date:

Name as it appears on card:

What happens when the signor of a guaranty adds a title e.g. "president" by her signature?

I once dealt with a situation where the guarantor for a corporate debtor signed the guaranty agreement with "president" by his name. He claimed he was signing not as an individual but as a corporate representative. This usually won't do since the guaranty clearly named the individual and it made little sense for the corporate guarantor to be the corporation (the principal).

Georgia case law:

A title such as “sec.” or “CEO” signed on a guaranty is a mere word of description and the signor remains personally liable.  See O.C.G.A. § 10-6-86; Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511, 398 S.E.2d 749 (1990); Keane v. Annice Heygood Trevitt Support Trust, 285 Ga. App. 155, 645 S.E.2d 641 (2007).  In Upshaw, the appellant placed the abbreviation “Sec.” immediately after her signature.  The court found this to be merely descriptive as the contract was unambiguous that she was signing in her personal capacity.  Likewise, in Keane, the appellant claims he signed “CEO” after his name although it was unreadable.  The court dismissed this argument as “there is nothing in the language of the guaranty to suggest that Keane was entering the obligation as a corporate officer.”  Id.

Secondly, in both Upshaw and Keane, the court found that removing the personal liability would render the obligation meaningless “as the corporation was already obligated on the debt” and summary judgment was thus proper.  Keane at 158; Upshaw at 513. 

"We are alive but not living"

A recent Economist article identifies several trends among the world's refugee populations:

• Refugee populations are more mobile
• Needs are less food and shelter, more psychological care (e.g. trauma) and education
• Less likely to be in camps - registered refugees intermingle in urban centers
• If in camps, the stay is longer
• Stingier admissions among rich countries

The article mentions that handling refugees has become less humanitarian and more a development issue. The line between persecution and economic refugees is more and more blurry. One government manager suggests naturalizing refugees who are in country to allow them to find work, develop community, etc. In exchange, rich countries should foot the bill and provide expertise.