October 12–October 25, 2024

  • Realtor files malicious prosecution lawsuit against Defendant who filed an ethics complaint against Realtor, which the Tennessee Real Estate Commission resolved as: “CLOSED/NO ACTION.” Because filing an ethics complaint is presumptively protected petitioning activity, Defendant petitions to dismiss Realtor’s lawsuit under the Tennessee Public Participation Act, but the trial court denies the petition.  Tennessee Court of Appeals, on interlocutory review of the TPPA denial: Reversed.  The Tennessee Supreme Court’s decision in Mynatt v. Nat’l Treasury Emps. Union, Chapter 39, 669 S.W.3d 741, 746 (Tenn. 2023)—a case that your favorite summarist lost and definitely is not still bitter about—held that the documents disposing of the earlier proceeding must indicate that the termination “reflects on the merits of the case and was due to the innocence of the accused,” and here, the documents stating that the ethics complaint was resolved as “CLOSED/NO ACTION” don’t do that.  So the Defendant’s TPPA petition is granted, and the Realtor gets to pay Defendant’s attorney’s fees.  [Editorial note: Congrats to Horwitz Law, PLLC’s Sarah L. Martin and friend of the firm Jamie Hollin for the big win.]
  • Alzheimer Patient and his (alleged) Wife move from New York to Tennessee in August of 2022.  In January of 2023, Wife petitions for a conservatorship—something Patient’s Daughter had done in New York in October of 2022.  Trial court finds that Patient and Wife were married and that, as Patient’s spouse, she has priority, so Wife’s conservatorship petition is granted, and Daughter appeals.  Tennessee Court of Appeals: “[T]he person who is the subject of the conservatorship petition must be domiciled in the trial court’s county in order for a trial court to have subject matter jurisdiction to consider the petition.”  But “a person who is mentally incompetent cannot voluntarily change domicile or legal residence because he or she does not have the requisite intent either to abandon their old domicile or to acquire a new one.”  And based on the record evidence here, Patient lacked “sufficient mental capacity to form the intent to change his domicile at the time of his arrival in Tennessee in August 2022, and therefore, the Trial Court did not have subject matter jurisdiction over this matter.”  So Wife’s petition is dismissed for lack of subject matter jurisdiction, and the trial court’s conservatorship order is vacated.
  • Following extended negotiations between Buyer and Seller related to the sale of land, Buyer files suit and seeks specific performance.  Following a bench trial, the trial court denies relief, and Buyer appeals.  Tennessee Court of Appeals: The trial court “journeyed through [a] labyrinthian maze of documents”—many of which were unsigned, incomplete, or inconsistent—all of which added up to a conclusion that we share: “there was no contract.”
  • Confusing contract term provides that the parties “submit to the non-exclusive personal jurisdiction of the state and federal courts of New Jersey for any litigation arising out of or related to this Agreement” while also providing that “[s]uch litigation will have venue in state courts in Morris County, New Jersey, or in the United States District Court for the District of New Jersey.”  So must such litigation be filed in New Jersey, or is New Jersey just a permissible but “non-exclusive” venue?  Tennessee Court of Appeals, attempting to apply New Jersey law: The only way we can make sense of this provision is if we treat the term “non-exclusive” as modifying the whole clause, so we hold that the clause provides for permissive—but not mandatory—jurisdiction and venue in New Jersey.
  • Judgment Debtor hops from South Carolina to North Carolina to Tennessee, declining to pay his judgment at each step in his journey.  Judgment Creditor follows him, enrolling its 2010 South Carolina judgment in North Carolina in 2014, and enrolling the North Carolina judgment in Tennessee in 2023.  Debtor objects to having the judgment enrolled in Tennessee, claiming that the original South Carolina judgment expired.  Tennessee Court of Appeals: Under North Carolina law, a foreign judgment becomes a “new North Carolina judgment” when enrolled.  And Section 1 of Article IV of the United States Constitution requires Tennessee’s courts to give full faith and credit to the judgments of other courts, so if Debtor wanted to contest the validity of the North Carolina judgment, “that was error that needed to be addressed in the North Carolina courts.”  Thus, the judgment was properly enrolled in Tennessee.  Holding that the judgment was properly enrolled is different from holding that it is enforceable, though—a question not presented in this appeal that we leave for another day.
  • In construction litigation, trial court dismisses Plaintiff’s sole claim for unjust enrichment for failure to exhaust contract remedies.  Tennessee Court of Appeals, in an opinion that is uncharacteristically replete with typos: “We reiterate that a plaintiff asserting a claim for unjust enrichment ‘must [] demonstrate that he or she has exhausted all remedies against the person with whom the plaintiff enjoyed privity of contract.’”  Because the Plaintiff here did not do that, the trial court properly dismissed the claim.  And because this is not the first time that claim was dismissed on the same ground, we deem the appeal frivolous and award fees.
  • Sellers agree to sell property to a Trust, and the agreement is memorialized by a contract signed by the Trust’s Co-Trustees.  Afterward, Sellers back out of the deal, and Co-Trustees sue—personally—to enforce the contract.  Tennessee Court of Appeals: The Co-Trustees signed the contract in a fiduciary capacity; they are not personally parties to the contract.  For that reason, they lack standing to enforce the contract, and their claims were properly dismissed for lack of standing.
  • Decedent dies after receiving medical treatment; afterward, the Administrator of his estate files a medical malpractice claim.  Defendant moves to dismiss based on the statute of limitations, which the trial court denies.  Tennessee Court of Appeals, on Rule 9 review: As a threshold matter, although we think our precedent is wrong, our precedent holds that the relevant question for statute of limitations purposes is when the Decedent became aware of the claim, not when the Administrator became aware of it.  Nevertheless, “[t]he fact that Plaintiff alleged that the injury occurred during treatment does not indicate that the wrongful conduct that caused the injury was discovered at the time of injury. A cause of action does not accrue every time an adverse outcome occurs . . . ; rather, a cause of action accrues when a plaintiff discovered or should have discovered that the adverse outcome was the result of wrongful conduct, as well as the identity of the person or persons whose wrongful conduct caused the injury. . . .  Defendants effectively would have us nullify the discovery rule by inferring Plaintiff’s knowledge based upon nothing more than the date of injury.”  And for all of these reasons, the trial court correctly denied the motion to dismiss, because the Defendants did not prove their statute of limitations defense.  [Editorial note: There is a federal magistrate judge in the Middle District of Tennessee who has been botching this analysis for a very long time.]
  • Tennessee Court of Appeals, in hyper-technical medical malpractice dispute related to an in-patient medical facility’s alleged negligence in failing to inform a medical transportation company of the patient’s physical limitations prior to discharge: Expert testimony was necessary to establish a breach of the relevant standard of care, and a transportation expert (as opposed to a medical expert) was not competent to provide it.  We decline to consider the trial court’s decision granting summary judgment as to vicarious liability, though, because the losing party does not challenge it and the winning party (which wanted it reviewed for some reason that isn’t clear from the opinion) “has no need for review of a decision in its favor and we will not offer a purely advisory opinion.”
  • Pro se litigant seeks accelerated interlocutory appeal of trial court order denying her motion to recuse.  Tennessee Court of Appeals, in pithy two-page ruling that uncharacteristically is not designated a non-citable memorandum opinion: Recusal appeals have mandatory requirements like “a statement of the issues presented for review,” “a statement of the facts,” and “an argument,” and taking the notice of appeal form, crossing out the heading “Notice of Appeal,” and writing “Petition for Recusal 10B” on it does not satisfy them.  So the appeal is dismissed.
  • Tennessee Court of Appeals, in extremely dense, borderline unreadable 21-page opinion in case involving “dueling declaratory judgment actions arising out of a deed of conservation easement” that you will have to parse yourself: For the reasons stated in this opinion, one of the parties wins.
  • Litigant in case involving distribution of decedent’s testate estate seeks to relitigate some issues that were decided back in 2005.  Afterward, the Parties announce a settlement agreement in open court, but Litigant appeals for some reason.  Tennessee Court of Appeals: “An agreement on outstanding issues was [] announced in open court, on the record, with the terms duly recorded. Notably, one of the terms was that the parties waived their right to appeal.”  And that agreement is binding, so this appeal is frivolous, and the winning party gets fees.  [Editorial note: There’s some useful analysis in here about law of the case doctrine exceptions, “stipulations regarding issues as well as stipulations of fact”—a hot topic in Tennessee appellate law—and the non-jurisdictional nature of briefing defects, too.]
  • Husband, now pro se, appeals final divorce decree.  Tennessee Court of Appeals: But his brief violates basically every briefing rule we have, and he also failed to provide either a transcript or a statement of the evidence, so the appeal is dismissed, and it’s also deemed frivolous.
  • Buyer sues Seller for breach of contract over a real estate purchase and sale agreement.  After a bench trial, trial court finds that Seller (who backed out of the agreement and then entered into a new contract to someone who offered to pay more) breached the Parties’ contract.  The trial court accordingly orders specific performance, but it declines to award Buyer attorney’s fees.  Tennessee Court of Appeals: The breach of contract rulings are affirmed.  But Buyer should have been awarded her attorney’s fees, because the Parties’ contract provides for mandatory fee-shifting, and courts lack authority to disregard mandatory fee-shifting provisions.  Also, Seller waived the argument that Buyer’s claim failed for lack of damages by failing to argue that below

Firm Highlights/Lowlights

Months ago, the Tennessee Court of Criminal Appeals quietly issued a dangerous, indefensible opinion that would have precluded judicial review of a huge number of post-conviction petitions based on a routine form deficiency.  Because that extremely wrong opinion threatened the rights of Horwitz Law’s innocent and unfairly convicted clients (among thousands of others each year), we filed an amicus brief urging the Tennessee Supreme Court to designate the opinion non-citable.  And happily, the Tennessee Supreme Court has now done just that, so the ruling has no precedential effect.  Read all about it: https://scotblog.org/2024/10/following-horwitz-law-pllc-amicus-brief-tennessee-supreme-court-designates-as-not-for-citation-judge-tim-easters-opinion-precluding-review-of-post-conviction-claims-based-on-a-form-deficiency/

Also, Horwitz Law was back in the Tennessee Court of Appeals itself this week, arguing that client Dave Rosenberg should keep the $100,000.00 sanctions award he won against SLAPP-happy lawfare queen Michelle Foreman.  The argument went well, and the Tennessee Court of Appeals is poised to give some meat to the TPPA’s sanctions provision.  Watch the argument here: https://www.youtube.com/watch?v=EQgJ87hRRbM&t=125s