February 9–15, 2026

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.

• Tennessee Court of Appeals: In this week’s episode of Waiver with Judge Usman, we teach that if you don’t appeal independent case-dispositive rulings and didn’t object below to an issue that you do try to appeal, then we are going to find the issues waived.  We’re also going to find an issue waived if you give us an argument “consisting of two sentences assert[ed] in a conclusory way[.]”  We’re going to find an issue waived if you raise an issue via a “bare assertion that [a trial court ruling] is improper” but “fail[] to cite relevant authority[,]” too.  And we’re going to find an issue waived if an Appellee makes “a developed jurisdictional argument which cites legal authority in support of their position” and the Appellant fails to respond to it.  So to summarize our holdings here: (1) waiver, (2) waiver, (3) waiver, (4) waiver, and (5) waiver.
• Husband files for divorce from Wife based on inappropriate marital conduct after Wife “destroy[s] marital property and separate property of Husband’s by slicing Husband’s furniture with a butcher knife, punctur[es] Husband’s automobile tires with a knife, and . . . threaten[s] to shoot him with a pistol.”  Tennessee Court of Appeals: And while we definitely affirm the divorce judgment for Husband under the circumstances, the more important thing about this decision is that finality rules apparently are satisfied if trial court motions were not adjudicated below because a party “failed to set them for hearing.”
• Tennessee Court of Appeals: When a litigant has a right to counsel (as in parental rights termination proceedings), it is an abuse of discretion for a trial court to allow counsel to withdraw on the morning of trial without notice to the client.
• Tennessee Court of Appeals: Because “a plaintiff is the master of his or her complaint[,]” trial courts can’t award plaintiffs relief they don’t want and didn’t seek.  And here, because “Plaintiff did not seek, and should not be forced to accept, specific performance as [her] remedy[,]” the trial court erred by awarding that remedy.  [Editorial note: Split of authority alert.  Presumably based on some recent Tennessee Supreme Court authority instructing appellate courts to be a bit more forgiving of technical deficiencies, this Panel ruled in the Appellant’s favor even though her “appellate brief does not include a Statement of the Issues[.]”  But that’s contrary to a long line of authority holding that “[c]ourts have consistently held that issues must be included in the Statement of Issues Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not included is not properly before the Court of Appeals.”  See Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001).]
• Nearly every litigation privilege case holds that the litigation privilege exists “because ‘access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount.”  So does the litigation privilege protect lawyers from non-defamation claims?  Tennessee Court of Appeals (without directly noting the issue): Yep.  So it protects this attorney who was sued “for tortious interference, civil conspiracy, and constructive trust[,]” because giving attorneys freedom to make “creative arguments” in aid of their clients without fear of being sued is “the fundamental purpose and policy behind the litigation privilege.”  [Editorial note: There’s an interesting passage in here about whether “[a]n order granting a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted is an adjudication on the merits” such that a plaintiff cannot refile.  A Rule 12.02(6) dismissal is an adjudication on the merits, the Tennessee Court of Appeals reiterates.  So if plaintiffs want a trial court to dismiss without prejudice instead, they at minimum have to make that request in the trial court.  This approach—which is correct, in your Summarist’s view—is at least arguably in tension with some Court of Appeals authority holding that “after a motion to dismiss has been sustained by an appellate court, . . . the party may amend its complaint to state a claim for which relief may be granted[,]” though.  See Freeman Indus. LLC v. Eastman Chem. Co., 227 S.W.3d 561, 568 (Tenn. Ct. App. 2006) (citing Tennessee Dep’t of Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 301 (Tenn. 1975)).]
• Tennessee Court of Appeals: When trial courts are obligated to make findings to support their rulings (which are sometimes, though not always, required), “conclusory statements” that “do nothing more than restate the language of the factors” won’t do.
• Tennessee Court of Appeals: Continuing on this theme: In criminal contempt cases, for example, “[t]his Court has previously applied Rule 52.01’s requirements” that trial courts make adequate findings.  So a trial court’s order that convicts a defendant on a bunch of counts but “is silent on each essential element of criminal contempt”—including the fact issue of whether a violation “was willful”—must be vacated.

Firm Updates

Red alert.  Tennessee Code Annotated section 1-3-121 is a neutral and vitally important statute that affords Tennesseans a limited right to judicial relief when government officials break the law.  It has never permitted parties to win money; the only thing courts can do is declare that government officials violated the law and order them to stop.  But the Tennessee General Assembly—at the Attorney General’s behest—is now trying to repeal section 1-3-121 to prevent people from suing the State.  The only reason the Attorney General’s Office would want to repeal this common-sense law is because it wants state officials to be able to break the law without any state court being able to stop them, though, so please tell your House Rep and Senator to cut it out.