Intermediate Scrutiny has been on a three-week hiatus, so you get a triple-dose of Tennessee Court of Appeals opinions this week.  (The opinions are unusually good, though, so forwarding this newsletter makes for a great Mother’s Day gift.)

• • Attorney with a history of controversy files public records lawsuit in Williamson County.  Her lawsuit contains a false statement which was presented in a manner that suggests it was intentionally designed to mislead.  This—and the fact that the trial court judge believed that she should not have filed the public records lawsuit at all and was concerned about what Attorney would say about the records she wanted—results in the trial court assessing Rule 11 sanctions that include a $5,000.00 fine.  Tennessee Court of Appeals: There’s no issue with sanctioning Attorney for the false statement in her pleading, so that’s affirmed.  But the trial court’s decision to sanction Attorney simply for filing a public records lawsuit—and based on its concerns about speech she hasn’t even uttered yet, at that—is dangerous, constitutionally incompetent, “threatens to undermine the structure and operation of the Public Records Act,” and looks an awful lot like an unlawful prior restraint, since Attorney “is also being sanctioned, including a monetary penalty, for speech that she has not yet uttered.”  The trial court’s $5,000.00 fine violates Tennessee’s Fifty-Dollar Fine Clause, too.  So the trial court’s sanctions order is mostly reversed.  [Editorial Note: Williamson County is bananas.]
  • Tennessee Wildlife Resources Agency: Based on a statute that says we can do this, we are going to trespass on Plaintiffs’ private property on multiple occasions without a warrant or consent.  Trial Court: The statute is facially unconstitutional under Article I, Section 7 of the Tennessee Constitution—the Tennessee Constitution’s 4th Amendment analogue—and the offending officials owe $1 in nominal damages.  Tennessee Court of Appeals: The government’s flailing attempts to avoid a merits ruling—it somehow argues with a straight face that the dispute is both unripe and moot at once—are unpersuasive.  And the statute, while facially constitutional due to “wild waste land areas beyond the reach of any constitutional protection,” is nonetheless unconstitutional as applied, because the government traipsing around private property looking for hunting violations without a warrant or the owners’ consent is super problematic.  You guys also won’t believe how bad the government’s briefing is; a ton of stuff, including the government’s opposition to the nominal damage award, is waived.  [Editorial note: Congratulations to friend the Institute for Justice—whose Short Circuit newsletter inspired this one—for the big win.]
  • Under factual circumstances that seem suspiciously like fraud, pedestrian starts crossing the street forty feet from a crosswalk while the light is green and (depending on whom you believe) walks into a truck being driven by a government official.  A Shelby County trial court inexplicably awards the pedestrian a six-figure negligence judgment on two grounds, even though: (1) one of the Plaintiff’s claims of negligence (negligent hiring) was abandoned, (2) the Plaintiff’s other claim of negligence involved an internally inconsistent apportionment of fault, and (3) as far as your Editor can tell, there was zero evidence of any actual damages in this case.  Tennessee Court of Appeals: We cannot imply strongly enough that the trial court did not know what it was doing.  In any event, the trial court’s finding of negligent hiring is reversed due to zero proof of such negligence; the trial court’s apportionment of fault is vacated due to internal inconsistency; and we have no difficulty finding on this record that the pedestrian was at least 50% at fault for walking into the street far from a crosswalk while the light was green, thereby precluding her recovery.
  • Without explanation or apparent purpose, Tennessee Department of Labor and Workforce Development jerks around a Claimant who seeks unemployment compensation benefits during COVID.  Trial Court: The government can’t just make up unpublished policies and screw with claimants in an effort to deny them.  Claimant’s testimony that he provided all the documents he was supposed to provide was also unrebutted.  Thus, the government’s arbitrary and capricious denial is reversed.  Tennessee Court of Appeals: The trial court’s ruling is affirmed.  And the government’s behavior here—at every stage of this litigation—was equal parts inexplicable and atrocious.  [Editorial note: Your tax dollars fund the public employees and Attorney General’s Office attorneys featured in this opinion, though they would be better spent launching those people into the sun.]
  • District Attorney puts Police Officers on “Giglio List”—basically, a list of people whose credibility is subject to doubt—effectively ending their law enforcement careers.  Police Officers then sue the District Attorney personally for tortious interference and negligence per se (they lose).  While the appeal is pending, the District Attorney dies.  Tennessee Court of Appeals: The tortious interference claim fails because it’s abated by the District Attorney’s death (since it involves an action “for wrongs affecting the character of” the Police Officers and the District Attorney won below).  By contrast, the negligence per se claim fails because the Police Officers’ briefing is flagrantly incompetent in a bunch of respects and they failed “to properly challenge, through their briefing, one of the independent bases for dismissal of the negligence per se claims.”  [Editorial note: Of all the things that District Attorneys do, placing dishonest police officers on a Giglio or Brady list easily ranks among the acts most worthy of absolute immunity, which does and should apply under circumstances like this.]
  • Estate: The Decedent’s wife’s son wrote a bunch of checks from the Decedent’s account that were neither authorized by the Decedent nor made for his benefit, and he did so through “misrepresentation, undue influence, and lack of competency of the Decedent.”  We also think he did some other bad stuff related to some Certificates of Deposit.  Trial Court: It’s clear that the guy became the Decedent’s agent for check-writing, and there is a long-settled agency principle that “whoever undertakes to act for another, in any matter, shall not, in the same matter act for himself.”  Given that, “in any transaction between a principal and his agent by which the agent obtains a benefit, a presumption arises against its validity which the agent must overcome,” and a bunch of these checks do not overcome that presumption, so the Estate wins a $13.355.05 judgment.  There’s nothing wrong with the CDs, though.  Tennessee Court of Appeals: Just so; everything the trial court did is affirmed.  Also, “‘under no circumstances’ may an agent ‘act for himself or for any other than the principal without first making full and complete disclosure of the facts to the principal,’” and there was not disclosure here.
  • Shelby County Trial Court Judge engages in angry tirade and some bonkers, “inexplicable” actions in delinquent tax case brought by Shelby County.  Tennessee Court of Appeals: “[W]e readily conclude that Shelby County has demonstrated pervasive bias to warrant recusal” based on the facts in the record, which reflects the trial court judge’s “utter incapacity to be fair.”  So the judge is ordered recused, and the case is remanded for reassignment.  [Editorial note: It is comforting to learn that even Shelby County has this kind of experience in Shelby County.]
  • Trial Court: Appellee is awarded attorney’s fees under the Tennessee Uniform Fraudulent Transfer Act.  Tennessee Court of Appeals: Under Tennessee law, there must be “a ‘clear intent’ in [a] statute to allow a prevailing party to recover attorney’s fees before such fees may be awarded,” and the UFTA does not contain such express language.  So “the UFTA’s catch-all provision does not allow a party to recover attorney’s fees,” and the Trial Court’s judgment is reversed.  Also, while the Appellee raises a clever claim for attorney’s fees under the Independent Tort exception (which allows a party to win attorney’s fees “when a party, ‘through the tort of another[,] has been required to act in the protection of his interests by bringing or defending an action against a third person”), because the issue was not adequately briefed below and also isn’t designated by the Appellee in its Statement of the Issues on appeal, the claim is waived.
  • Husband executes an appointment of healthcare agent form that gives Wife “permission to make health care decisions” for him.  Husband is later admitted to Nursing Home, and Wife signs an optional arbitration (“ADR”) agreement related to his admission.  Husband later dies, and Wife commences a wrongful death action alleging that, as a result of Nursing Home’s failures, Husband suffered pressure injuries, infections, and worsening epilepsy that ultimately caused his death.  Tennessee Court of Appeals: Under the rationale of a recent Tennessee Supreme Court decision, Wife “was not making a ‘health care decision’ when she executed the ADR Agreement because doing so was not necessary for ‘consent to health care.’”  So the ADR agreement was never validly executed and Husband’s heirs are not precluded from litigating their wrongful death claims.  [Editorial note: Congratulations to friend Sarah Martin, one of Tennessee’s best state-level appellate lawyers, for the big win.]
  • Woman slips and falls on wet floor in Grocery Store, resulting in a serious hip injury.  She then files a negligence claim against Grocery Store, asserting that Grocery Store had constructive notice of the hazardous condition but failed to remedy it.  Tennessee Court of Appeals: “The trial court rightly concluded that [Woman] failed to put forth proof as to [Grocery Store’s] constructive notice of the condition at issue, namely, the water.  [Woman] conceded at trial that she has no proof about how the puddle originated or how long it existed prior to her falling. There is also no proof in the record that any [Grocery Store] employee saw the water or knew of any water on the floor in the bottled-water aisle prior to the fall.”  The opinion also contains an interesting determination that your Editor does not recall seeing in any previous case: “[P]ersuasive case law from other jurisdictions is primarily relevant in the absence of controlling Tennessee cases,” and “a significant expansion of Tennessee law is beyond our reach and is better directed to the Tennessee Supreme Court.”
  • During litigation over property dispute, Trial Court dismisses a plaintiff’s claim for a declaratory judgment under Rule 12.02(6) for failure to state a claim.  Tennessee Court of Appeals: HMMFT do we have to tell Trial Courts to stop granting motions to dismiss declaratory judgment cases?  At least one more.  But because the Trial Court’s ruling ultimately got the merits of the case right, we affirm the ultimate outcome after vacating the 12.02(6) ruling and the fee award that it generated.
  • Trial Court: So, yes, the Tennessee Court of Appeals has instructed over, and over, and over, and over again that trial courts should not grant motions to dismiss declaratory judgment claims, which exist to enable to parties to come to court to determine their rights whether they are ultimately correct about what their rights are or not.  But since a shocking number of Tennessee’s trial court judges have no idea what they are doing, I shall grant this developer’s motion to dismiss an HOA’s declaratory judgment action for failure to state a claim anyway.  Tennessee Court of Appeals (for the third time in as many weeks): Once more for those in back—trial courts should not grant motions to dismiss in declaratory judgment actions.  So “the trial court erred in dismissing this action pursuant to Rule 12.02(6),” and its dismissal order and resulting fee award are vacated.  But since the trial court ultimately got the merits of the dispute right, its merits ruling is affirmed.
  • Mother (pro se): Everyone involved in this case—the trial court judge, the magistrate judge, the assistant district attorney, everybody—should recuse.  Tennessee Court of Appeals: “Mother’s request for the trial judge’s recusal appears premised on a misimpression of the assistant district attorney’s role. . . .  The assistant district attorney does not represent Mother.”  Thus, the trial court’s order denying Mother’s motion for recusal is affirmed, but because there is not yet an order on Mother’s motion to recuse the magistrate judge, that motion is transferred to the trial court for adjudication.
  • Trial Court: Rescinds a tax sale based on extremely light reasoning that makes vague reference to unconstitutionality.  Tennessee Court of Appeals: “Tennessee Rule of Civil Procedure 52.01 provides that ‘[i]n all actions tried upon the facts without a jury, the court shall find the facts specially and shall state separately its conclusions of law and direct the entry of the appropriate judgment.’”  Here, though, “we are left to wonder about the basis for the chancery court’s decision,” which “we cannot discern.”  So the Trial Court’s decision is vacated with instructions to, you know, “apply a[] legal standard” and “provid[e ] reasoning for its decision.”  If there’s a constitutional challenge here, the Attorney General needs to be given notice of it, too.
  • Tennessee Court of Appeals: This is the second appeal in this personal injury matter involving a Plaintiff’s injury from an uneven sidewalk owned by the defendant city.  The first time around, we rejected Plaintiff’s constructive notice claim but vacated the trial court’s judgment because of an evidentiary error.  On remand, though, the plaintiff “offered no new evidence on the issue of how long the condition of the sidewalk (with a height differential exceeding one-fourth of an inch) had existed.”  So the Plaintiff’s appeal is foreclosed by the law of the case doctrine, since her second appeal presents the same issue we rejected the first time.
  • Plaintiff’s complaint is dismissed by a trial court for failure to state a claim, thereby triggering a $10,000 fee-shifting award that is stayed pending appeal.  Plaintiff then files an appeal, but his attorney (of repeatedly failed anti-tax petitioning fame) neglects to meet briefing deadlines, so the appeal is dismissed involuntarily.  Afterward, the trial court grants the Defendant $10,000 in attorney’s fees, and the Plaintiff appeals again.  After briefing is completed (but before argument) in the second appeal, the Plaintiff moves to voluntarily dismiss the appeal.  The Court of Appeals grants the motion to dismiss but reserves judgment on whether fees should be awarded under Tennessee’s frivolous appeals statute.  Tennessee Court of Appeals: Fees should be awarded; this appeal was frivolous and taken solely for delay, and we can and should adjudicate the victim’s claim for sanctions notwithstanding the voluntary dismissal.  [Editorial note: Seemingly obliviously, the same author of this opinion employed vastly different reasoning last year when it came to plaintiffs who voluntarily dismissed bogus SLAPP-suits in response to anti-SLAPP claims but before judgment.]
  • Contract that “left a great deal to be desired” devolves into payment dispute between Homebuilder and the Buyer of a custom home.  The parties agreed to arbitrate the dispute, and the arbitrator rules on several matters, some favorable to either side.  Homebuilder, unhappy with the ruling, seeks to set aside or modify part of the arbitration award in court.  Tennessee Court of Appeals: Arbitration awards are subject to extremely deferential standards; “courts uphold an arbitration award as long as the arbitrator was ‘even arguably construing or applying the contract.’”  Here, because the arbitrator’s judgment “contains all the hallmarks of interpretation,” it will be affirmed.  And even though there was no prevailing party during the arbitration, there was definitely a prevailing party in the motion to set it aside.  So the trial court’s order refusing to set aside the arbitration award is affirmed, and Buyer gets her attorney’s fees based on the parties’ contract.
  • Tennessee Court of Appeals: A motion for contempt was filed in the trial court but was not adjudicated.  Further, even though the trial court order appealed here states that it is a “final order of the Court for purposes of appeal,” it lacks the “magic language” under Rule 54.02 that there is “no just reason for delay.”  So the trial court’s order is not actually a final appealable judgment, and this appeal is dismissed for lack of jurisdiction as a result.
  • Tennessee Court of Appeals, in non-citable per curiam Memorandum Opinion that would otherwise break new ground and is sure to trip up a large number of litigants down the road: This appeal (involving a criminal contempt order that triggered a fee award) is similarly dismissed as non-final, because criminal contempt orders become final upon entry of punishment, and we consider the unadjudicated fee award the trial court ordered below to be “punishment.”  (Editorial note: This analysis is wrong, and if you are a criminal contemnor, you should appeal after you are sentenced, rather than risking loss of your right to appeal on timeliness grounds by waiting to appeal until after you are hit with an attorney’s fee award.)
  • Pro se litigant serving a life sentence for first degree murder and attempted first degree murder sues the Criminal Court Clerk, seeks writ of mandamus that his judgment should be expunged because it was not properly endorsed with the date the clerk received it.  Tennessee Court of Appeals: The trial court properly determined that it lacked subject matter jurisdiction to adjudicate the claim.  The petitioner asked the trial court to direct certain officials to remove the criminal judgment against him, and that claim “is, in reality, a challenge to the validity of the criminal judgment against him.”  As such, the claim falls within “the exclusive purview of the appropriately constituted criminal courts,” and “the Trial Court, as a chancery court and court of equity, lacks subject matter jurisdiction to hear that challenge.”
  • Two-thirds of a Tennessee Court of Appeals panel, following extremely dense analysis that will make your head hurt: We conclude that “the work performed by [Employee] was part of [Business’s] regular business” and, therefore, Business “was [Employee’s] statutory employer.”  As a result, Employee was prohibited from suing Business, and worker’s compensation was his only lawful remedy.   Judge Usman, dissenting: “[E]xisting Tennessee caselaw does not appear to have grappled with vendor-vendee relationships when determining statutory employer status,” and “the failure to address such circumstances creates an inconsistency with Tennessee’s Workers’ Compensation Law.”  Further, “[a]pplying existing caselaw without integrating the limitation as to vendors threatens to make many more employers liable for workers’ compensation of employees who are not their direct employees while reducing the protections of such employees against negligence by employers who are not their direct employer.”
  • Man convicted of aggravated kidnapping, especially aggravated kidnapping, and aggravated assault sues trial court judge, seeks to vacate Judge’s order “dismissing his untimely second-amended petition [for post-conviction relief] on the basis that dismissal violated his right to due process.”  Tennessee Court of Appeals: “[A]lthough the doctrine of judicial immunity does not bar an action for declaratory relief that is ‘purely prospective,’ the ‘courts have consistently prohibited plaintiffs from seeking declarations that [a judge’s] ‘prior conduct violated federal law[,]” and that’s what this is.  So the trial court’s order dismissing the action based on judicial immunity is affirmed.
  • Wrongful death action is filed pro se by two Sons of the decedent.  The suit is filed in Sons’ capacity as co-administrators of the decedent’s estate and on behalf of the decedent’s six children.  Trial Court: the action was filed by people who were not authorized to practice law on behalf of the estate or others, and, therefore, it was void ab initio and a nullity.  Tennessee Court of Appeals: Though Sons engaged in the unauthorized practice of law by trying to sue on behalf of the estate and others, they were also asserting their own rights of action under Tennessee’s wrongful death statute.  Thus, their lawsuit was partially proper, it should not have been dismissed, and the Trial Court’s decision is partially reversed.  On remand, the additional heirs need to be given an opportunity to intervene, and if they decline to do so, the trial court needs to determine (among other things) whether they are indispensable parties.  We give you 26 pages of helpful analysis detailing the complete mess that is Tennessee’s wrongful death statute, too.
  • Wife seeks accelerated interlocutory appeal of order denying her motion to recuse.  Tennessee Court of Appeals: Because Wife waited several months before seeking recusal, “Wife did not file her motion for recusal promptly in accordance with Tenn. Sup. Ct. R. 10B, §1.01,” and we affirm the denial.
  • Tennessee Court of Appeals: No recusal is necessary in this case involving a judge who previously represented an expert witness in the litigation, though, since there is no demonstrated concern about pre-judgment, credibility, or bias.
  • In post-divorce custody litigation that hopped from one state to another, a Utah court “ultimately recognized that Tennessee should be exercising jurisdiction in this matter but inexplicably and inconsistently, in the same order, took action with respect to the parties and Child.”  Tennessee Court of Appeals: “Because the Utah court had already lost its exclusive, continuing jurisdiction and did not have jurisdiction to make an initial custody determination at the time of the 2022 Relocation Order’s entry, the Tennessee court was correct in concluding that the Utah court’s 2022 Relocation Order was void for lack of subject matter jurisdiction.”

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Firm Highlights/Lowlights

In an increasingly competitive effort to file the most egregious SLAPP-suit in Tennessee history, one no-good, very-bad Chattanooga developer has endeavored to take the lead.  Read all about it here.  Or just read Horwitz Law, PLLC client Joey Blevins’ TPPA Petition seeking sanctions and dismissal of the lawsuit, which (like Aetna Mountain) is filled with holes.

Separately, in an increasingly competitive effort to be as disappointing as possible, Governor Bill Lee quietly killed a popular clemency initiative for which he had sought and obtained local, national, and international praise.  The callous and unexplained reversal—which leaves hundreds of defendants serving outrageous sentences for minor crimes in the lurch—is a tragic and enraging betrayal.