November 16–November 22, 2024
- Before she dies, Decedent executes a Durable Power of Attorney form designating Daughter as her attorney-in-fact. The form states: “THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU.” Afterward, Decedent is admitted into a Nursing Home facility, and during the process of completing paperwork related to her admission, Daughter executes a “Mediation and Arbitration Agreement” that provides for binding arbitration of disputes between Decedent and Nursing Home. The Mediation and Arbitration Agreement also states explicitly: “The parties agree that the signing of this Agreement . . . is a health care decision.” After Decedent dies, her estate pursues a wrongful death claim against Nursing Home, which Nursing Home insists must be arbitrated. The Williamson County Circuit Court then grants Nursing Home’s motion to compel arbitration, and Decedent’s estate appeals. Tennessee Court of Appeals: Based
simply on the identity of the oft-reversed trial court judge who decided this caseon the facts that: (1) Decedent never executed a healthcare-specific Power of Attorney; (2) Decedent’s Power of Attorney form “explicitly excluded [Daughter] from making health care decisions on Decedent’s behalf in large, bold, capital letters at the very top of the document[,]” and (3) the arbitration agreement at issue here states explicitly that “[t]he parties agree that the signing of this Agreement . . . is a health care decision,” this is an easy case, even though whether to sign an arbitration agreement is generally considered a legal decision. And “the trial court’s finding that [Daughter] was Decedent’s health care surrogate . . . is erroneous for various reasons[,]” too: “[f]irst and foremost,” because “the facts of this case simply do not align with” the relevant statute, and secondly, because no one ever made this claim below and the trial court judge, as usual,simply made up the argument himself in obvious violation of party-presentation rules. Thus, the the trial court’s order compelling arbitration is reversed. Judge McBrayer, concurring: Let’s all please keep in mind that the meaning of contractual language “is divined within the context of the law existing at the time the document was executed.” - Decedent is employed as a millwright by Machine Company, which has dedicated space within a Bridgestone Tire plant. Decedent is tragically killed while working there after a 2200-pound tire mold—basically, a massive steel plate—falls on him. After Decedent’s estate sues Bridgestone, trial court denies Bridgestone summary judgment as to worker’s compensation exclusivity but grants Bridgestone summary judgment as to whether it had a duty to the employee of its independent contractor. Tennessee Court of Appeals: The trial court correctly found that disputes of material fact existed concerning Bridgestone’s control over Decedent’s work, so it was right to deny Bridgestone’s claim to summary judgment based on worker’s compensation exclusivity. But there also “are disputes of material fact that preclude the grant of summary judgment on the question of duty,” so the trial court’s order granting Bridgestone summary judgment on that issue should be reversed. [Editorial note: At least to your summarist, Bridgestone arguing simultaneously that it lacked a duty to the Decedent and also exercised so much control over the Decedent’s work that he should be treated as its employee for worker’s compensation purposes makes no sense.]
- Pro se litigant who obtained some kind of loan for a home improvement project but didn’t pay it back files substantially incoherent lawsuit against people with whom he never contracted. Despite having his claims dismissed for failure to state a claim, he obtains a sanctions award (three years of LifeLock monitoring) after an opposing litigant discloses some of his sensitive personal information in public filings. Unsatisfied with these rulings, he appeals. Tennessee Court of Appeals: “It is axiomatic . . . that a plaintiff in a breach of contract lawsuit must file suit against the party with whom he or she has a contract.” You also can’t sue people for defamation when your lawsuit is premised on something that someone else whom you didn’t sue said. And the sanctions order—which pro se litigant asserts should have been harsher (but which your summarist is skeptical was proper at all)—was within the trial court’s discretion, so that is affirmed, too.
- Mother moves for de novo review of a magistrate’s order, seeks rehearing before a juvenile court judge. At the time she did so, Tenn. Code Ann. § 37-1-107(d) stated: “Any party may, within ten (10) days after entry of the magistrate’s order, file a request with the court for a de novo hearing by the judge of the juvenile court. The judge shall allow a hearing if a request for hearing is filed.” Some 500 days later, though, the General Assembly amends the statute to state: (1) that such a request for rehearing “must include written exceptions to the magistrate’s findings, conclusions, or recommendations, and specify the findings to which the party objects, the grounds for the objection, and the party’s proposed findings, conclusions, or recommendations[,]” (2) that rehearing “is limited to those matters for which exceptions have been filed[,]” and (3) that a “presumption of correctness” attaches to the magistrate’s ruling. The trial court holds that the statute is procedural and applies retrospectively, and Mother appeals. Tennessee Court of Appeals: Applying the amendment against Mother retrospectively “defeats the reasonable expectations of Mother” and would amount to unfair surprise. That conclusion is also bolstered by Father’s argument that the later amendment deprives Mother of any right to a hearing at this point at all because she did not predict, 500 days earlier, how the statute would change: “a Kafkaesque result [that] is both unjust and absurd.” Thus, the trial court’s order is reversed with instructions to apply the version of the statute that was in effect at the time Mother filed her motion. We also include both a helpful definition of “Kafkaesque” for those of you who don’t know what that means and note in a footnote that “the proceedings in the juvenile court can in no way be described as complying with [the public policy of promptly resolving juvenile cases], as a fairly routine request to alter a parenting plan is still not resolved nearly seven years later.”
- Pro Se Plaintiff files an inverse condemnation action against a city, county, and related government entities for allegedly constructing and operating—more than three years earlier—an outdoor event venue on property he partly owned without his knowledge or consent. The trial court later dismisses his complaint both on statute of limitations grounds and because an inverse condemnation action requires a plaintiff to prove a decrease in his property’s value, rather than an increase (which is what Plaintiff alleged). Plaintiff appeals, but he only challenges the trial court’s statute of limitations ruling. Tennessee Court of Appeals: “[W]here a trial court provides more than one separate and independent ground for its judgment and a party fails to appeal one or more of the independent grounds, we must affirm the judgment of the trial court on the ground that was not challenged on appeal.” And here, “[i]n challenging the summary judgment order, [Plaintiff] confines his argument on appeal to the trial court’s ruling on the statute of limitations but presents no argument regarding its separate ruling as to the essential elements of the claim.” So the trial court’s merits decision is affirmed without further analysis. [Editorial note: Why this case—in which the material facts appear to support the Plaintiff’s theory that the government built something on his property without his consent—was not pursued as a trespass claim is a mystery.]
- Pro Se Plaintiff proceeds to jury trial against Mechanic, asserting that damage to her vehicle was attributable to Mechanic’s negligence (allegedly, installing the wrong part and improperly installing a turbocharger) and its violation of the Tennessee Consumer Protection Act. Trial court: “The only connection shown by Plaintiff was a temporal coincidence between [Mechanic]’s work and Plaintiff’s alleged damages,” so Mechanic is entitled to a directed verdict. Tennessee Court of Appeals: “Plaintiff failed to prove causation with any evidence, expert or not,” so the trial court’s judgment is affirmed.
Firm Updates
Congratulations to Horwitz Law, PLLC client the Nashville Banner! On Thursday, the Tennessee Supreme Court agreed to hear the Banner’s appeal over whether a Davidson County Criminal Court judge erred by keeping secret a bunch of illicitly sealed judicial records that may indicate that another Davidson County Criminal Court judge—who coincidentally happens to be the first judge’s close friend and colleague—is incompetent. It’s only the Tennessee Supreme Court’s third media case in a decade. It’s also Horwitz Law’s eighth trip to the state’s high court in six years (court watchers should root for results like this and this, rather than, say, this).
And congratulations to Horwitz Law, PLLC client Jeff Fisher! Mr. Fisher—a sitting Alderman of the Town of Oakland, Tennessee—was recently issued a citation for placing a yard sign supporting his own candidacy in his own front yard during his own campaign for reelection. The reason? The Town’s sign ordinance treated political signs supporting political candidates less favorably than other types of signs generally and other types of political signs, specifically (most of which are unregulated). The word “treated” in the preceding sentence is past tense, though, because Mr. Fisher has now had his First Amendment rights vindicated—and the ordinance is now permanently enjoined courtesy of a federal consent decree. Read the consent judgment here.
