December 13–19, 2025
Intermediate Scrutiny—a Tennessee Court of Appeals blog—is a snappy weekly newsletter from Tennessee appellate attorney Daniel A. Horwitz summarizing the week’s decisions from the Tennessee Court of Appeals. To subscribe, click here. Past newsletters can be found here.
- Creditor seeks to collect judgment against Debtor. To do so, Creditor seeks to garnish an IRA that Debtor inherited. Debtor moves to quash the garnishment, asserting that the IRA is exempt. Trial Court denies Debtor’s motion to quash, finding that Debtor made prohibited transactions that nullified the IRA’s protected status. Afterward, Debtor appeals. Tennessee Court of Appeals: An inherited IRA “is not a retirement plan”—“it is akin to a pot of money”—and thus, it is not exempt from garnishment under Tennessee law. And even if it were, the Inherited IRA lost whatever status it previously had as a qualified retirement plan based on Debtor’s prohibited transactions. So we affirm. [Editorial Note: There’s a useful bit about waiver in here for those of you who need to defend against waiver claims on appeal. “We place substance over form when it comes to deciding whether a party has raised an issue for the first time on appeal. What is more, we prefer to resolve appeals on their merits.”] [Second Editorial Note: Congratulations to friend of Intermediate Scrutiny Rob Peal on the win.]
- Tennessee assesses a “professional privilege tax,” which affords five lucky professions the privilege of paying $400.00 to the state each year through a crappy payment system that often malfunctions. One of those privileged professions is “Persons licensed as attorneys by the supreme court of Tennessee.” An out-of-state lawyer who must pay the fee but handles only a small number of Tennessee matters each year sues to invalidate the tax, asserting that it violates the “dormant” (sometimes called the “negative”) Interstate Commerce Clause. Trial Court (“imprecise[ly]”): It doesn’t. Tennessee Court of Appeals: It doesn’t, because it is not discriminatory in practical effect; it is internally consistent; and it is fairly apportioned.
- Defendants contract with an Auction House to auction their property. Defendants then engage in some light fraud; they use shill bidders to bid up the property in the hopes of recovering a higher price for it. The fraud is a bit too aggressive; Defendants (through an LLC) end up as the winning bidders. Afterward, Defendants refuse to close, and the Auction House sues them for fraud and breach of contract. Trial Court: Auction House wins, Defendants did the fraud. Tennessee Court of Appeals: Affirmed, not only because the fraud appears obvious here, but also because the Defendants neglected to file a transcript of the trial that would enable us to review their appeal. And because they didn’t object to Auction House’s award of attorney’s fees below, that objection is waived here.
- Based on detailed allegations recounted by Child that your Summarist does not care to include here, Petitioner (a minor) is substantiated as a perpetrator of sexual abuse of a five-year-old Child. Petitioner denies the Child’s allegations and presents his own proof disputing them. An administrative law judge credits Child’s testimony, which results in Petitioner being placed on the Tennessee Department of Health’s Abuse Registry. Petitioner files a petition for judicial review, after which the trial court finds that “substantial and material evidence did not exist to support the decision that Petitioner was the perpetrator of the victim’s abuse” and reverses. The State appeals. Tennessee Court of Appeals: Because “the trial court impermissibly re-weighed the evidence presented in this matter, we reverse the court’s decision and affirm the determination of the ALJ substantiating Petitioner as the perpetrator of [Child]’s abuse.”
- Unhappy Property Owners and Short-Term Renting Property Owners live in the same subdivision. Based on the subdivision’s CC&Rs, Unhappy Property Owners file suit seeking to enjoin Short-Term Renting Property Owners from using their properties as short-term rentals. Unhappy Property Owners also assert a common-law nuisance claim, alleging that “guests who routinely stay at [Short-Term Renting Property Owners]’ properties on a short-term basis often host late-night parties, blare loud music at unreasonably loud levels and at unreasonable hours, and/or engage in other unreasonable behaviors.” The trial court dismisses both claims, and Unhappy Property Owners appeal. Tennessee Court of Appeals: We affirm the dismissal of the request for injunctive relief, as the issue is controlled by the Tennessee Supreme Court’s recent decision in Pandharipande that covenants just like this are ambiguous and need to be construed in favor of the property owner. But we reverse the trial court’s dismissal of the nuisance claim, since Unhappy Property Owners “have stated nuisance claims sufficient to withstand a Rule 12.02(6) motion to dismiss.” [Editorial note: This opinion seems to confuse issues related to granting motions to dismiss in what presumably was a declaratory judgment act case—which generally are not subject to 12.02(6) dismissals—and granting attorney’s fees under Tennessee Code Annotated section 20-12-119(c)(1), which applies even to single-claim dismissals.]
Firm Updates
Congratulations to Horwitz Law, PLLC client Andy Mitchell! Mr. Mitchell was baselessly sued by his former employer for various speech-based tort claims. But having become wise to the consequences that the Tennessee Public Participation Act imposes for pursuing such litigation, a lot of plaintiffs have basically stopped doing that after we show up to defend such cases. So the abandoned claims asserted against him are now dismissed with prejudice. [Compare that to the result obtained by the folks who baselessly sued Horwitz Law, PLLC client Theresa Baldwin, who were just ordered to pay her an additional $145,000.00.]
