November 30–December 6, 2024
- A county regional planning commission denies an application to place a quarry in an agricultural zone because: (1) the quarry is not a permitted use, and (2) the relevant zoning scheme states that all nonpermitted uses are prohibited. The trial court affirms the planning commission’s decision on certiorari review, and the quarry proponent appeals. Tennessee Court of Appeals: The Zoning Resolution expressly lists the specific permitted uses in the district; quarrying is not listed as a permitted use; and the Zoning Resolution explicitly prohibits all nonpermitted uses, so the trial court’s decision is affirmed. Come for application of some foundational rules of statutory interpretation (the General/Specific canon; how to treat an enacted prologue); stay for the uncontroversial proposition that making an error of law qualifies as a misapplication of relevant legal standards (which would come as a surprise to some); and take comfort in your own brief’s typos, because one of the Tennessee Court of Appeals’ best and most careful writers wrote that a particular argument in the case “runs contrary to Zoning Resoluition’s [sic] framework . . . .”
- Long-running dispute between neighbors devolves into a lawsuit “for nuisance, intentional infliction of emotional distress, and enforcement of a local zoning ordinance.” All claims are dismissed at trial. For some reason, though, the trial court enjoins the Plaintiff—the only party who asserted claims that reached trial—from interfering with the installation of underground power lines. Tennessee Court of Appeals: The Plaintiff failed to prove that he was “specially damaged” by an asserted zoning violation—which is necessary to have a private right of enforcement action—so that claim was properly dismissed. Following a lengthy discussion of judicial notice rules as they apply to municipal ordinances, we also affirm the trial court’s discretionary decision not to take judicial notice based on the specific facts involved here (plus, a portion of this argument is waived because it was raised only in a reply brief). We also find the record supports dismissal of the plaintiff’s “spite fence” (apparently a real doctrine) claim, nuisance claim, and IIED claim. The trial court had no authority to issue the injunction, though, so that’s vacated.
- Ex-Son-in-Law sues Ex-Father-In-Law for tortious interference of a contract, tortious interference with a business relationship, and violation of the Tennessee Consumer Protection Act based on statements Ex-Father-In-Law made to a non-party that caused the non-party to move money he had invested with Ex-Son-In-Law. The trial court dismisses the claims on a Rule 12 motion for failure to state a claim; afterward, it grants fees under Tenn. Code Ann. § 20-12-119(c)(1). The trial court also goes on to hold a new and different hearing on Ex-Father-In-Law’s separately-filed Tennessee Public Participation Act Petition and grants TPPA fees as well. Ex-Son-in-Law appeals all of these rulings. Tennessee Court of Appeals: The actions of the non-party here did not constitute a contractual breach, given that the contract at issue expressly provided that: “You may at any time increase or decrease your managed assets.” Thus, the first claim was properly dismissed. And the second claim was properly dismissed, too, because “the tort of intentional interference with business relationships does not protect against interference with an existing or past contract.” Finally, the TCPA claim failed because it is premised on “a conjectural opinion,” not a false or misleading representation of a fact, so all of Ex-Son-In-Law’s claims were properly dismissed under Rule 12. But the trial court should not have held a TPPA hearing on the Defendant’s non-concurrent TPPA Petition after it had already granted Ex-Father-In-Law’s motion to dismiss, since the TPPA Petition was moot and non-justiciable at that point, and a defendant does not have “a right to have an unheard TPPA petition adjudicated if the party has already obtained dismissal by way of Rule 12.” So the trial court’s TPPA-based fee-shifting award is vacated. We also note that Tenn. Code Ann. § 20-12-119(c)(1) fees (arising from a grant of a Rule 12 motion to dismiss) should not be awarded until after appeal, but here, that was harmless error. [Editorial note: That really is not harmless error and it can’t be, since the entry of a premature judgment results in premature statutory interest accruing.]
- Plaintiff alleges horrifying misconduct by therapist. His original expert and his attorney later withdraw, though, leaving Plaintiff to litigate a complicated Health Care Liability Act claim pro se. He later finds a new expert, but without explanation, the new expert offers deposition testimony about the Plaintiff’s damages that conflicts with the expert’s affidavit. After the trial court applies the cancelation rule to preclude that testimony, it dismisses the Plaintiff’s claim on summary judgment for want of expert testimony supporting damages. The Plaintiff—still pro se—appeals. Tennessee Court of Appeals: “This court must be mindful of its neutral role, and it must avoid lawyering for a party.” And because the Plaintiff’s briefing is seriously deficient, all of his claims on appeal are rejected, largely outright, based on briefing deficiencies. We also include this citable line in our opinion: “In declining to scour the record to address failures of the parties to cite thereto, Tennessee appellate courts have oft noted that appellate court judges are not like pigs looking for truffles. Trial court judges similarly lack a porcine deportment.”
- Pro se litigant seeks accelerated appeal of trial court’s denial of motion for recusal made during trial. Tennessee Court of Appeals: Motions to recuse must be made in writing to be reviewable, though we acknowledge our conflicting jurisprudence on the matter. At any rate, since litigant filed a written motion as well, we’ll consider that. But “[b]ecause the record on appeal does not contain any written order denying Mother’s written recusal motion,” this appeal is dismissed.
Firm Updates
Horwitz Law, PLLC was back in the Court of Appeals itself last week, arguing that a 2018 Tennessee statute that is designed to preclude contractual efforts to cover up child sex abuse applies comprehensively and is not restricted to post-2018 settlement agreements. Watch the oral argument here: https://www.youtube.com/watch?v=UoXqaXU3aO0&t=61s
