May 31–June 6, 2025

  • Plaintiffs—one of them an oft-sanctioned lawyer—file especially vindictive SLAPP-suit against Mother after Mother speaks out about Plaintiffs’ troubling behavior toward Mother’s minor daughter.  The lawsuit is filed shortly after Mother reports Plaintiffs to DCS.  Following extensive trial court proceedings, trial court grants Mother’s Tennessee Public Participation Act petition to dismiss and also awards Mother sanctions under the TPPA’s discretionary sanctions provision.  Plaintiffs appeal.  Tennessee Court of Appeals: Plaintiffs’ constitutional challenge to the TPPA is waived because it was not timely presented, and we do not overlook the waiver because the TPPA “is not obviously unconstitutional.”  Also, “the record does not create doubt that the decision reviewed and signed by the court represents the court’s own deliberations and decision,” so Plaintiffs’ claim that the trial court’s decision was not its own fails, too.  As to the rest of the Plaintiffs’ appeal: “[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 Plaintiffs’ failure to challenge multiple dispositive trial court rulings sinks their appeal.  We also affirm the trial court’s sanctions award given that a bunch of facts support it, and Mother gets her attorney’s fees on appeal, too.  [This is a Horwitz Law, PLLC case.]
  • The General Assembly enacts a statute that has the effect of forcing Metro Nashville—but only Metro Nashville—to halve the size of its current 40-member Metro Council.  Can it do that under the Home Rule provision of Tennessee’s Constitution?  Two-thirds of a Tennessee Court of Appeals Panel: Yep.  The most troubling provision of the statute is moot due to the passage of time, and any constitutional problem that it caused can be elided.  As for the rest of the statute: Metro Nashville is not exempt from general state laws limiting its council’s size, and because “there is no dispute that three counties” are affected by the size restriction, the statute “the ‘class created’ by [the size limitation provision] is not ‘so narrowly designed that only one county can reasonably, rationally, and pragmatically be expected to fall within that class[.]’”  Judge Armstrong, dissenting: Article VII, section 1 of the Tennessee Constitution says that “[a]ny county organized under the consolidated government provision of Article XI, Section 9, of this Constitution shall be exempt from having a county or legislative body as described in this paragraph.”  The majority says that “exempt,” as used here, means “does not apply” or is “inapplicable” within the context of the Section’s 25-member cap provision.  But it actually means that Metro Nashville is “free or released from some liability or requirement to which others are subject,” which means that “Metro is relieved from limiting its legislative body to 25 members or less” and the statute’s 20-member restriction is unconstitutional as a result.
  • 165 Dominican workers sue Tennessee Chemical Company in Shelby County Circuit Court, alleging that—in contravention of the Tennessee Products Liability Act (TPLA)—they were injured by Chemical Company’s tortiously toxic herbicide.  Applying a two-step federal test for assessing extraterritoriality, the trial court dismisses the Workers’ complaint for failure to state a claim.  Workers appeal.  Two-thirds of a Tennessee Court of Appeals Panel: Affirmed.  The narrow issue presented on appeal is whether the TPLA can apply extraterritorially, and based on a legal standard no one argued and that the trial court did not apply, we conclude that it cannot.  Judge Stafford, dissenting: Though the Plaintiffs’ sloppy briefing “unnecessarily complicates our review of this appeal,” Plaintiffs’ real argument in this appeal is whether, “regardless of the fact that their injuries occurred in the Dominican Republic, sufficient conduct occurred in Tennessee by [Chemical Company] that the TPLA can be applied domestically.”  And since the answer to that question—which the majority does not answer—is yes, the majority is wrong.  [Editorial note: Also featured are some useful citations regarding vertical stare decisis (“this Court is bound by pronouncements of the Supreme Court irrespective of their vintage, and must follow them until they are overruled or modified by legislative action”) and, in dissent, “[j]ust as plaintiffs are masters of their complaints, appellants are masters of their appeals.”]
  • Developer hires Contractor which hires Sub-Contractor to source steel shipping containers.  A bunch of shipping containers are delivered, but payment is withheld, so Sub-Contractor files breach of contract claims and a statutory claim for violation of the Tennessee Prompt Pay Act.  Sub-Contractor wins $866,991 judgment at trial, and Developer and Contractor appeal.  Tennessee Court of Appeals, patiently adjudicating an 18-issue, kitchen-sink-style appeal that should have been four issues at most: Remittitur is appropriate here, since the maximum damages supported by the record are $301,309.00.  Otherwise, in order: (1) assuming it was error to exclude the pleadings as statements of a party opponent (it was), that error was harmless here given the cross-examination on the topic; (2) judicial estoppel doesn’t apply here, since two conflicting sworn statements of fact are required; (3) a lien-related argument is waived; (4) a promissory estoppel/unjust enrichment-related gripe is harmless; (5) the jury found a written agreement here, so any claimed defect on that issue is meritless; (6) the jury’s finding of bad faith non-payment was supported by the record evidence; (7) a defect in Sub-Contractor’s lien—it was not filed under oath—was a non-prejudicial error (editorial note: you can read more about such claims-processing rules here; (8) “with effect,” as used in the Prompt Pay Act, means “with success,” not, like, with speed or vigor; (9) an asserted defect related to Sub-Contractor’s description of the property in question is waived; (10) asserted service-related defects concerning Contractor are waived, since Contractor was brought in under Rule 13.08 and “Appellants do not address the application of Rule 13.08 in their briefs”; (11) an asserted error regarding failure to bifurcate Sub-Contractor’s lien claim is waived; (12) any defenses regarding the lien were waived by Contractor because it recorded a bond to discharge it; (13) a full attorney’s fee award to Sub-Contractor was fine because its “Prompt Pay and contract claims involved a common core of facts”; (14) pre-judgment interest should have been awarded based on the statutory interest rate that was in effect at the time; (15) Sub-Contractor complied with Rule 8 by alleging a contract claim against Developer “and/or” Contractor, and failure to specifically refer to the Prompt Pay Act statute citation was harmless here; (16) Sub-Contractor complied with Rule 10.03 by attaching the contract it contended was at issue; and (17) Sub-Contractor get its attorney’s fees on appeal based on the Prompt Pay Act’s fee-shifting provision.
  • On March 18, 2024, trial court grants a motion to enforce a settlement agreement.  Trial court then enters an order taxing costs on March 22, 2024.  Appellant then files a notice of appeal on April 18, 2024.  Tennessee Court of Appeals: “[A]n order enforcing a settlement agreement is a final order for purposes of appeal.”  And because “the taxing of court costs is not a claim, right, or liability affecting an order’s finality,” it doesn’t toll the appeal deadline.  As a result, Appellant’s April 18, 2024 was filed one day after the 30-day appeal deadline expired, and we dismiss the appeal for lack of subject matter jurisdiction.  And Tennessee Rule of Civil Procedure 60.02 cannot be used on remand to correct the oversight, either.
  • Tennessee’s Recreational Use Statute (TRUS), Tenn. Code Ann. § 70-7-101, et seq., affords general civil immunity to landowners who open their property to recreational use. Section 102 of the statute lists a bunch of activities that qualify as “recreational activities” (e.g.: “hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, . . . skeet and trap shooting, sporting clays, shooting sports, and target shooting,” etc.)—a list that does not include golf.  Plaintiff is injured while playing golf on Defendant’s property and sues.  Based on controlling Tennessee Supreme Court authority, “[a]n activity need not be listed in Section 102 for the section to apply, but it must be comparable to those listed.”  So is golf sufficiently comparable—a determination that would preclude the Plaintiff’s claim?  Tennessee Court of Appeals: Yeah.  “Under [Plaintiff’s] proposed interpretation of TRUS, had [Plaintiff] walked up to the tee box and used a rifle to shoot a target several hundred yards away, the [Defendant] would be immune, but his use of a club and ball render the [Defendant] liable.”  We think that doesn’t make sense and also think that golf kind of “implicates hiking,” so the Defendant is immune.  Also, the last time the General Assembly touched this statute, it repealed an exception that applied when consideration was exchanged, so we don’t think there is a consideration exception that negates the Defendant’s immunity.  Thus, the fact that Plaintiff “paid to play golf on Defendant’s course is of no moment,” and the trial court’s dismissal of his complaint is affirmed.
  • Litigation ensues over commercial lease that must be construed and enforced under Georgia law.  And for that reason, you can read the Tennessee Court of Appeals’ discussion of why the landlord wins under Georgia law yourself.
  • Pro se litigant files accelerated interlocutory appeal of trial court’s order denying motion to recuse.  Tennessee Court of Appeals: Unless you are brand new to this newsletter, you already had a pretty good idea that this appeal was going to be dismissed for Rule 10B non-compliance, which is strict and mandatory.  And the “woefully deficient” appeal filed here doesn’t cut it.
  • During litigation about a trust, trial court grants Petitioner’s motion to amend her petition for a declaratory judgment over opposing party’s objection.  Its order “simply states its conclusion that [Petitioner] is allowed to amend her petition, but the order provides no basis for that decision.”  Tennessee Court of Appeals: And that was error, not only because “there is no indication that the trial court applied the correct legal standard,” but also because “the lack of any explanation for allowing the amendment . . . negates this Court’s ability to conduct a meaningful review of that decision.”  So we vacate the order and remand to the trial court with instructions to explain its decision based on the legal standards that govern it.
  • Litigation ensues over whether decedent’s check payment to Donee was a loan or a gift.  After a bench trial, the trial court finds that it was a loan, and Donee appeals.  Tennessee Court of Appeals: “[T]he law presumes the delivery of a check is a loan and not a gift,” and the Donee failed to satisfy its burden of proving otherwise.  So we affirm.

Firm Updates

Congratulations to Horwitz Law, PLLC client Theresa Baldwin!  Ms. Baldwin, the victor in the first case above, has been through hell for several years defending a SLAPP-suit filed by two people who behaved extremely questionably toward her daughter.  The plaintiffs’ appeal was argued back in April, Ms. Baldwin’s win—the first appellate authority addressing the TPPA’s sanctions provision—is now in the books, and Ms. Baldwin will get all of her fees paid.  Three cheers for the Tennessee Public Participation Act.