July 5–July 11, 2025

  • Grieving Mother and your humble Summarist’s law firm file unconstitutional-conditions lawsuit against Metro Nashville challenging local ordinance and Tennessee statute that interfere with civilian oversight of police.  (The provisions instruct that victims of police misconduct lose the right to oversight if they have “initiated, threatened, or given notice of the intent to initiate litigation against the local government entity or its employees.”)  After receiving notice, the State of Tennessee moves to intervene for the limited purpose of defending the constitutionality of the state statute; afterward the trial court involuntarily makes the State of Tennessee a full party to the litigation.  Both plaintiffs and the State of Tennessee appeal, asserting that the trial court had no business doing that.  Two-thirds of a Tennessee Court of Appeals panel: Vacated.  The trial court acted unlawfully—a huge volume of precedent instructs that the State may intervene for a limited purpose if it wants to do that—but Metro has claimed that the State of Tennessee is a necessary party here and the trial court hasn’t considered that issue, so we remand to answer that question.  Judge McBrayer, concurring in part and dissenting in part: The trial court acted unlawfully, and the State of Tennessee very clearly is not a necessary party here, so the plaintiffs should have won this appeal even harder.  [This is a Horwitz Law, PLLC case.]
  • Pizza Restaurant leases property from Landlord that includes an outdoor patio.  Unbeknownst to Pizza Restaurant, though (because Landlord didn’t disclose it), Landlord had licensed the airspace rights above the property to a construction company that operated a huge tower crane there.  According to Pizza Restaurant, the crane regularly drops debris over its leased patio (Landlord asserts the debris could have come from a building that it didn’t control).  Unhappy with this state of affairs, Pizza Restaurant sues Landlord for breach of contract, breach of the covenant of quiet enjoyment, and fraudulent inducement.  Afterward, trial court grants summary judgment of liability on the breach of contract claim and a jury rules in favor of Pizza Restaurant at trial on basically all issues, awarding damages for the breach of contract claim and rescission of the lease agreement for the fraudulent inducement claim.  Landlord then appeals everything except the fraudulent inducement judgment.  Tennessee Court of Appeals: Reversed.  The rule is that “a property owner owns the airspace over his or her property to the extent that the owner can practicably use the airspace or to the extent that ownership of the airspace is necessary to the regular or intended use of the property.”  And the contract at issue here leased Pizza Restaurant “3,870 [of] usable square feet of space . . . plus exclusive use of the parking lot . . .  for such other uses as are now or may from time to time be customary or standard for the conduct of such type of restaurant and bar.”  By its terms, then, the lease did not include any airspace rights, and Pizza Restaurant can’t make practical use of them, so Pizza Restaurant was not entitled to summary judgment on the breach of contract claim.  There also is a dispute of material fact here as to whether the crane’s operation caused any of the damages complained of, so Pizza Restaurant’s breach of quiet enjoyment claim (it’s not super clear how that claim was resolved below; it seems to have been pretermitted) is not appropriate for summary judgment, either.  The unappealed fraudulent inducement judgment stands, but because Pizza Restaurant only sought rescission of the contract as its remedy for that claim, Pizza Restaurant cannot use that claim to support a damages award.
  • Man drives pickup truck down, down [street], full speed in a [Chevrolet S-10].  He crashes into Street Sweeper, causing high grade injury.  Apparently, a known risk of street sweepers is that the dust they kick up can obscure them, and this one was not equipped with appropriate “high intensity” lighting, or followed by a tail vehicle, or using available water jets to protect against that risk.  Because the Street Sweeper was operated by a city employee, Man sues the city for negligence under the Governmental Tort Liability Act.  After trial, the trial court finds the City 51% at fault and liable for negligence.  City appeals.  Tennessee Court of Appeals: This was an operational act, not a discretionary one, so there is no discretionary function immunity.  And because the General Assembly did not intend to enact a useless statute, we determine that the public duty doctrine cannot apply here.  Nor is there any statutory immunity in play here.  Thus, the trial court’s judgment is affirmed.  Man’s cross-appeal of the trial court’s damages award (it is not clear how much the trial court awarded) is rejected, too, because he didn’t introduce at trial any of the medical bills that he claims the trial court improperly failed to consider when awarding damages.
  • Seller sues Buyer for breach of contract after Buyer fails to pay for goods and services.  After being served with process, Buyer does not timely answer Seller’s Complaint.  Seller then moves for default.  Buyer retains counsel for the hearing on the motion to default and asks the court for three additional days to respond to Seller’s Complaint.  Trial court declines to grant the extension and enters a default judgment for Seller.  Buyer appeals.  Tennessee Court of Appeals: With very little reasoning, we conclude that Buyer has failed to show an abuse of discretion here.
  • In Appeal #1, Tennessee Court of Appeals rules for Litigant and remands “for collection of costs.”  Based on this language, on remand, Litigant seeks attorney’s fees.  Litigant also seeks fees under Tennessee Code Annotated section 20-12-119(c)—which permits attorney’s fees when a trial court has granted motion to dismiss for failure to state a claim—even though that never happened here.  Trial court denies Litigant’s attorney’s fee claim, and Litigant commences Appeal #2.  Tennessee Court of Appeals: No error here.  The trial court read our opinion regarding costs correctly, which means court costs, not attorney’s fees.  We also never modified the trial court’s earlier judgment denying Litigant’s motion to dismiss, and “on remand, ‘the case stands in the same posture it did before the appeal except insofar as the trial court’s judgment has been changed or modified by the appellate court.’”
  • Plaintiff: You have to recuse because of your prior recusal in a case involving the same parties and your previous favorable credibility determination regarding an expert witness who now serves as the Defendant’s attorney.  Trial court: Nope.  Tennessee Court of Appeals: A recent Tennessee Supreme Court opinion is awfully close to these facts and said that recusal wasn’t required, so we conclude that recusal wasn’t required.  Trial courts also are not required to make findings of fact on motions for recusal.
  • Litigant files what purports to be a certiorari appeal of a local planning commission’s approval of a development plan.  His “appeal” actually seeks declaratory relief in the first instance, though, despite his protestation to the contrary.  Litigant’s certiorari petition also is verified by his lawyer—not him—“to the best of [lawyer’s] knowledge, information, and belief.”  Trial court dismisses the declaratory judgment action as improper and dismisses the certiorari claim as inadequately verified, and Litigant appeals.  Tennessee Court of Appeals:  “Declaratory judgment actions are original actions that are tried for the first time before the trial court, whereas a petition for writ of certiorari invokes the trial court’s appellate jurisdiction to review an administrative body’s actions.”  And where, as here, “a declaratory judgment action is brought in conjunction with a petition for writ of certiorari, the declaratory judgment action should be dismissed at the outset of the case,” so the trial court was correct to do that (and it didn’t need to rely on Litigant’s characterization of his claim, which was for the court to decide).  The trial court also was correct to dismiss Litigant’s certiorari claim, since adequate verification is an affirmative requirement, and “Counsel’s belief is not equivalent to the petitioner’s knowledge, and his verification does not establish that the petition’s allegations are true.”

Firm Updates

Congratulations to Horwitz Law, PLLC client Kimberly Jones-Mbuyi!  As reflected in the first appeal above, Mrs. Jones-Mbuyi’s important public interest challenge now returns to the trial court for further proceedings unburdened by a State party who has no business complicating her case.  This also makes twelve straight Tennessee Court of Appeals wins as appellant for the Horwitz Law, PLLC team dating back to 2023, which you are not allowed to mention means that trial courts keep screwing us incorrectly.  [Pre-2020 Vandy announcer voice: “The streak continues!”]