November 22–28, 2025

  • Defendant moves to compel arbitration, but the trial court denies the motion.  Afterward, Defendant seeks and obtains permission to appeal under Tennessee Rule of Appellate Procedure 9.  The resulting Rule 9 appeal then is taken more than 30 days after the trial court’s initial order denying the Defendants’ motion to compel arbitration.  Tennessee Court of Appeals: Despite the Parties’ agreement that we have subject matter jurisdiction to adjudicate this appeal, we do not.  The Tennessee Uniform Arbitration Act authorizes an interlocutory appeal as of right under these circumstances.  Thus, the Defendant was required to file a notice of appeal within 30 days as Tennessee Rule of Appellate Procedure 3 (which governs appeals as of right) contemplates.  “Because [the Defendant] did not, this appeal is untimely, so we lack subject matter jurisdiction.”  [Editorial note: This opinion is sneaky important for anyone who handles Tennessee Public Participation Act cases.  The Court of Appeals reached the same result in a TPPA case several years ago, though that decision was designated “not for citation,” so it has been an open question since then.  This case resolves that question.]
  • Plaintiff is charged with shoplifting; her prosecution ends with a nolle prosequi disposition (meaning the prosecutor abandoned the prosecution).  Plaintiff then files a malicious prosecution lawsuit against the people who prompted her criminal prosecution.  Was the Plaintiff’s nolle prosequi disposition a “favorable termination” for purposes of Tennessee’s malicious prosecution tort?  Tennessee Court of Appeals: Based on the Tennessee Supreme Court’s decision in Mynatt v. National Treasury Employees Union, 669 S.W.3d 741 (Tenn. 2023), which effectively forecloses all malicious prosecution claims that arise out of criminal proceedings, the answer is no.  “The only document in the record regarding the disposition of the criminal case against [Plaintiff] is the expungement order, which states only that a nolle prosequi had been entered.  There is nothing indicating that the nolle prosequi was entered based upon the merits of the case against [Plaintiff] or because she was innocent[,]” so we affirm the dismissal of Plaintiff’s malicious prosecution claim.  [Editorial note: There also is never likely to be a case where some document in the record indicates that a nolle prosequi was entered due to innocence.  As your Summarist unsuccessfully argued in Mynatt, Tennessee’s uniform criminal judgment document does not contemplate recording any such determination, even if innocence is the reason for the dismissal.]
  • Civil-forfeiture-gone-wrong prompts years of litigation that spans multiple cases.  Is the Plaintiffs’ claim for attorney’s fees related to the erroneous forfeiture precluded by res judicata and failure to prosecute?  Tennessee Court of Appeals (in companion cases): Nope.  Essential res judicata elements are missing when it comes to the earlier proceedings, and the trial court’s dismissal for failure to prosecute was an abuse of discretion.
  • Jury returns a defense verdict in a healthcare liability (medical malpractice) case.  Afterward, Plaintiff appeals, asserting a grab bag of trial errors.  Tennessee Court of Appeals: No error here for case-specific reasons.  As relevant to other cases, we also hold that: (1) “Trial courts should give a requested instruction if it satisfies three requirements: (1) it is supported by the evidence, (2) it embodies the party’s theory, and (3) it is a correct statement of the law[,]” and (2) “[a]s remarriage results in the replacement of at least some of the damages to the spouse of a decedent, remarriage is inherently relevant to a loss of consortium claim.”

Firm Updates

Congratulations to Horwitz Law, PLLC client Sarah Powell!  Some time ago, Ms. Powell was assaulted and battered by her soon-to-be-ex-husband.  She then sought and obtained an order of protection against him in a proceeding in which the order of protection court determined her husband had abused her.  And per the Davidson County Circuit Court’s summary judgment order last week, that ruling is preclusive of Ms. Powell’s civil assault and battery claims, for which her her husband is liable to her for damages.  The ruling creates a pathway for similar victims and involves a legal theory that many can replicate.