We were off last week, so you get a double dose of Intermediate Scrutiny this week:

• • Father violates court order “on 133 specifically identified occasions,” resulting in 186-day jail sentence for criminal contempt.  Tennessee Court of Appeals: Father’s asserted notice defects are waived because Father “admitted he was in contempt and acknowledged that he may face incarceration as a result” in response to the contempt petition and also failed to raise any notice issue below.  And since “Father does not dispute on appeal that he sent Mother thousands of inappropriate messages, spanning several years, in violation of a valid court order,” the trial court’s 186-day sentence both was not excessive and “is deserved,” even though the only factor that supports consecutive sentencing was a contempt conviction.  For a bunch of reasons, including that Father appealed punishment “to which he conceded he was subject” and “did not include a transcript of the final hearing or a statement of evidence in the record on appeal,” the appeal is also deemed frivolous on the Court’s own initiative even without fees being requested as a separate issue, which is not something your editor has ever seen happen in an appeal of a criminal conviction.  [Editorial note: This is how bad law gets made.]
  • Parents file stupid culture war lawsuit asserting that a school curriculum violates state laws that restrict the use of Common Core textbooks and prohibit the teaching of certain prohibited concepts in public schools.  Trial Court: Dismissed for lack of standing and for failure to exhaust administrative remedies.  Tennessee Court of Appeals: The plaintiffs have standing, and Tennessee Code Annotated Section 1-3-121 (which your editor notes is one of the only good laws Tennessee has enacted in recent memory) supplies a cause of action to contest the legality of governmental action here.  So the dismissal for lack of standing is reversed, and the Parents get to have most of their stupid claims addressed on their merits.  The Trial Court’s order dismissing Parents’ prohibited concepts claim for failure to exhaust administrative remedies is affirmed because the Parents didn’t do that and they had to, though.  Parents also lose their substantive due process claim because it makes no sense and their counsel said at oral argument that they aren’t asserting any such claim.
  • Plaintiff: By negligently extending a bit into the right-hand lane of the interstate, Defendant Tow Truck Driver caused unknown driver (who then fled the scene) to hit me.  Tennessee Court of Appeals: “[C]onjecture is simply not enough to establish causation by a preponderance of the evidence,” so the trial court’s order granting Tow Truck Driver summary judgment for insufficient evidence of causation is affirmed.
  • Litigants represented by attorneys who visibly don’t know what they’re doing on appeal bring their dispute to the Court of Appeals.  Tennessee Court of Appeals: “Plaintiff has attempted to appeal a non-final judgment, UPS has attempted to rely on documents that were not properly part of the record rather than supplement the record under Rule 24(e),” and we dismiss for lack of subject matter jurisdiction because we are not waiving the finality rule under these circumstances.
  • After Plaintiff’s cabinets “were found to have formaldehyde levels that exceeded the Environmental Protection Agency (‘EPA’) regulations,” “the EPA ordered them to be quarantined.”  So Plaintiff filed a claim with his Insurance Company, which refused to pay the claim.  Trial Court determines on summary judgment that there was a covered loss, but the Trial Court does not adjudicate potential exclusions, saving those issues for trial.  Insurance Company then secures a 54.02 finality order and appeals.  Tennessee Court of Appeals: “Without a determination regarding the exclusions, liability on the breach of contract claim cannot be established or rejected.”  So the Rule 54.02 certification was inappropriate, and Insurance Company’s appeal is dismissed for lack of finality.
  • Tax group contracts with hospital corporation to provide credit services on a continency fee basis.  The two entities then fight over whether a “spinoff” triggers the contract’s “reorganization” provision, on which a fee depends.  Tennessee Court of Appeals: This dispute is governed by California law, so we’re allowed to consider the “circumstances surrounding the making of the agreement” and “the parties’ subsequent conduct before the dispute arose, known as ‘the rule of practical construction.’”  Here, “despite not referencing the Internal Revenue Code,” extrinsic evidence confirms that “the parties intended ‘reorganization’ to have a tax-based meaning.”  Thus, “[b]ecause the spinoff did not constitute a ‘reorganization’ under the Internal Revenue Code, the reorganization provision of the contract was not triggered, and [the hospital corporation] did not breach the contract.”
  • Brother, represented by Attorneys, files “seven lawsuits concerning [family trust] administration against his” Siblings, all of which are unsuccessful.  Siblings then file a legal malpractice action “against the Attorneys who have represented the brother in the Trust Lawsuits.”  In response, Attorneys file a Tennessee Public Participation Act to dismiss the malpractice claim against them, asserting that filing pleadings on behalf of a client qualifies as an exercise of the right to petition.  The Trial Court holds otherwise.  Tennessee Court of Appeals, in two cases: The Attorneys are correct.  The TPPA—Tennessee’s still-relatively-novel-and-first-ever-meaningful-anti-SLAPP-statute—is meaningfully broader than the anti-SLAPP statutes of other states that have considered the same question.  In particular, the TPPA applies whenever an action “is based on, relates to, or is in response to that party’s exercise of the . . . right to petition,” and filing pleadings in court qualifies.  So the burden shifts to the Siblings to come forward with admissible evidence supporting each element of their claims.  The case is also remanded to the trial court to consider Siblings’ argument that the TPPA is unconstitutional (it is not, as a bunch of courts have already held).  [Editorial note: Congrats to friend Lucian Pera for the big win.]
  • Plaintiffs—sole shareholders of a company—sue Defendant.  Jury orders Defendant to pay $900,000.00 in damages.  Surprise!  Defendant argues—for the first time after the verdict—that Plaintiffs lacks standing to sue, because only the company was a proper plaintiff.  Trial Court agrees and vacates the judgment.  Tennessee Court of Appeals: Reversed.  Whether the Plaintiffs were proper parties is a different question from whether they lacked standing.  Here, the Plaintiffs clearly do have standing—they were injured, the Defendant caused their injury, and that injury was capable of being redressed—and as a result, the Defendant’s untimely argument about whether they were proper parties was non-jurisdictional and subject to waiver.  So the judgment is reinstated, and the case is remanded to consider other issues raised in post-trial motions.
  • Neighbor 1 builds a fence on Neighbor 2’s land.  Trial Court finds that Neighbor 1 “had built a fence on [Neighbor 2]’s land” but doesn’t award any damages and dismisses the claim, citing Neighbor 1’s “good faith.”  Neighbor 2 appeals.  Tennessee Court of Appeals: “[Neighbor 2’s] brief is largely devoid of any meaningful citations to the record so as to support the points advanced therein,” so basically everything is waived.  But because “good faith is not part of the inquiry as to whether a trespass occurred[,]” and since “trespass entitles the property owner to at least nominal damages[,]” Neighbor 2 is entitled to judgment and a nominal damages award.
  • Patient files health care liability (medical malpractice) claim against Physician.  Patient’s process server serves the summons and complaint on an employee of the hospital instead of Physician.  Physician then answers the complaint and raises the defense of insufficient service of process.  Afterward, when the statute of limitations expires, Physician moves to dismiss.  Trial Court: Dismissed.  Tennessee Court of Appeals: The service here was insufficient—the employee lacked authority to accept service for Physician—and Patient never issued new process or renewed service attempts.  So the statute of limitations was not tolled by the filing of the complaint, and the Trial Court’s dismissal is affirmed.
  • Pro Se Litigant files an accelerated interlocutory appeal as of right seeking to have trial court judge recused “due to the trial court not sanctioning defense counsel for various actions, unrelated to this case, that [Pro Se Litigant] finds objectionable.”  Tennessee Court of Appeals: Among other requirements you didn’t follow, the rules say you have to formulate an argument supporting recusal.  Because you didn’t, and because the rules are mandatory and must be strictly followed, this appeal is dismissed.
  • On February 1, 2024, Pro Se Litigant files a notice of appeal regarding an order entered on December 22, 2023.  Tennessee Court of Appeals: And because that was after the 30-day jurisdictional deadline to appeal, Pro Se Litigant’s appeal is yeeted into the sun.
  • On January 30, 2024, same Pro Se Litigant files a notice of appeal regarding an order entered on December 22, 2023 in a different case.  Tennessee Court of Appeals: Also into the sun.
  • Different Pro Se Litigant who didn’t pay his HOA fees files October 27, 2023 notice of appeal regarding an August 31, 2023 summary judgment order.  Tennessee Court of Appeals: You can join the guy above, and now it’s a party.
  • Pro Se Litigant: I did not like it when you denied my first appeal of an order denying my motion to recuse.  So here’s a second appeal of a second order denying my second motion to recuse based on the same allegations.  Tennessee Court of Appeals: “Multiple motions based on the same allegations are prohibited by Tenn. Sup. Ct. R. 10B, § 1.01,” so “the second motion to recuse is repetitive and improper.”
  • Pro Se Litigant: What about my interlocutory recusal appeal?  Tennessee Court of Appeals: You “not only failed to timely file a petition for recusal appeal[;]” you also “failed to file any petition for recusal appeal with this Court, belated or otherwise, that complies with Rule 10B.”  So…no.
  • Pro Se Litigant: How about me?  My landlord sucks, and the trial court just entered an order striking my demand for a jury trial.  Tennessee Court of Appeals: That’s an interlocutory order, so dismissed for lack of a final judgment.
  • Pro Se Litigant sues Unethical Attorney (who was subject to some apparent bar discipline and was in jail for part of the proceedings below) for committing malpractice, asserting that the attorney took her money and then didn’t do anything.  At a trial in which Unethical Attorney does not appear, Pro Se Litigant offers up evidence of her damages but no other element of negligence, resulting in the trial court ruling for the absent Unethical Attorney.  Tennessee Court of Appeals: We know how this sounds, but…you really should have hired an attorney.  Recognizing that you didn’t know what you were doing, the Trial Court’s judgment is affirmed because you didn’t prove multiple essential elements of your case.

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Firm Highlights

Congratulations to Horwitz Law, PLLC client Carlos Stokes!  Mr. Stokes is completely innocent of a terrible crime for which he is now serving more than a life sentence.  But thanks to an April 16, 2024 Court of Criminal Appeals opinion that addresses the overwhelming evidence of his innocence, unanimously reverses an indefensible Shelby County Criminal Court order denying him a hearing, and admonishes the trial court judge for failing to understand that Mr. Stokes “was entitled to exercise his right to remain silent and had no obligation to testify in his defense,” Mr. Stokes will now get a meaningful shot a freedom.