February 16–22, 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.

• Private Jet Company sues ex-employee (a pilot) for intentional interference with business relationships because Pilot reported safety concerns to the FAA.  Pilot then petitions to dismiss Private Jet Company’s claim under the Tennessee Public Participation Act, Tennessee’s modern anti-SLAPP statute.  Afterward, Private Jet Company makes no attempt to support its intentional interference claim—to the contrary, it “asserts that its own pleadings were insufficient” to support it—but it does seek to restart the litigation anew through a proposed amended complaint that asserts only a breach of contract claim based on identical facts.  Trial Court: Pilot’s TPPA Petition is granted; Private Jet Company’s motion for leave to amend is denied as both futile and moot.  Tennessee Court of Appeals: Affirmed.  Private Jet Company’s “own pleadings establish that the lawsuit was filed in response to a safety report to the FAA, and it has waived, for failure to argue, any contention that a safety report to the FAA is not protected under the TPPA.”  Further, Private Jet Company “has not presented an argument on appeal that the court erred in concluding the motion to amend was moot.”  So the trial court’s dismissal is affirmed, and Pilot gets his attorney’s fees on appeal, too.  (This is a Horwitz Law case.)
• A “12-foot steel barn door track” owned by Tractor Supply falls out of a display and strikes Plaintiff on the head.  Afterward, Plaintiff sues Tractor Supply for negligence bases on a premises liability theory.  The trial court dismisses Plaintiff’s premises liability claim against Tractor Supply on summary judgment, reasoning that one witness’s testimony on the central point in question—Tractor Supply’s notice of the dangerous condition—was contradicted by another’s.  Afterward, Plaintiff appeals.  Tennessee Court of Appeals: “There are two problems with this reasoning.”  First, the testimony “does not necessarily conflict[.]”  “Second, resolving a conflict between two witnesses’ statements hinges, at least in part, on the relative credibility of the witnesses, and that assessment is not appropriate at the summary judgment stage.”  And because, considering the proof in the light most favorable to the Plaintiff, “Tractor Supply did not provide undisputed proof to show that the harm was unforeseeable or to address the gravity of harm or the burden of engaging in alternative conduct,” the trial court’s order granting Tractor Supply summary judgment is vacated.
• Tennessee Court of Appeals: No one can be found in contempt of an ambiguous parenting plan order that does not specify relevant times when exchanges should take place and “created a conundrum” that the parties struggled to follow due to its material ambiguities.  So the trial court’s civil contempt judgment arising from such an order is reversed.
• On this week’s episode of Statutory Interpretation with Judge Usman—which features a lawsuit (it’s about short term rental rights) pitting That Jeremy Durham against the City of Hendersonville—we learn several rules, including: (1) “Local ordinances in Tennessee are interpreted using the same interpretive rules applicable to the interpretation of state statutes in Tennessee[;]” (2) “[g]iven the underlying constitutional respect for property rights, where an ordinance is ambiguous, Tennessee courts ‘will resolve ambiguities in favor of the property owner’s right to the unrestricted use of his or her property[;]’” (3) “[a] preamble . . . is an entirely appropriate place to look to gain an understanding of the purpose of a legislative enactment[;]” and (4) “a purpose provision cannot . . . ‘limit or expand the scope of the operative clause[.]’”  Tennessee Court of Appeals: And the ultimate effect of those rules is that the Durhams win on the primary statutory interpretation issue in dispute (whether non-owner-occupied short-term rentals are categorically banned).  But that does not necessarily mean that the Durhams will prevail here, given some awfully dubious proof about how they were actually using the properties.  So we remand for a determination about how the Durhams used the property and whether the Durhams’ uses violated the ordinance as we have construed it.  [Editorial note: Don’t forget the distinction, not addressed in this Opinion, between purpose as suggested by legislative history—which some courts (including, by implication, the panel here) do not think is appropriate to consider—and enacted purpose, which is text.  See Jarrod Shobe, Enacted Legislative Findings and Purposes, 86 U. Chi. L. Rev. 669, 712–15 (2019) (“Enacted findings and purposes should be properly understood as part of the statutory text, and they should be treated like other enacted text for purposes of interpretation.  A theory of interpretation that accounts for them is therefore simply a more complete version of the whole act rule.”); see also, e.g., State ex rel. Knight v. McCann, 72 Tenn. 1, 14 (1879) (“The preamble, as said by this Court in Trott v. McGavock, 1 Yer., 473, (Cooper’s Ed.) ‘is the key to unlock the mind of the Legislature,’ and the well established rule is to look at this to arrive at the intent and purpose of the Act.”); Williams v. Thomas Jefferson Ins., 385 S.W.2d 908, 910 (Tenn. 1965) (“It seems to us in view of the preamble to the Act, and what is said in the Act, that both of these annunciated policies of the Legislature must be given effect if the legislative intent and will is to be followed.”); Bria Health Servs., LLC v. Eagleson, 950 F.3d 378, 383 (7th Cir. 2020).]
• Dispute over changes to Testator’s will that redounded to Attorney’s benefit spills into contentious probate litigation after Testator dies.  Ultimately, the dispute reaches a jury, Attorney wins, and the Estate appeals.  Tennessee Court of Appeals: “Here, the trial court instructed the jury to consider whether the burden flipped to [Attorney] at the same time as it told the jury that the burden did not flip to [Attorney].”  And because “[t]hese conflicting instructions ‘more probably than not affected the judgment of the jury[,]’” we remand for retrial on the main issue here (an undue influence dispute).  We also hold some other stuff.

Firm Updates

Congratulations to Horwitz Law client Michael Barrett, the victor in the first case summarized above!  After two years of retaliatory litigation for whistleblowing, Mr. Barrett has emerged victorious against the ex-employer who sued him and gets all of his expenses paid on top of that.  Three cheers, again, for the Tennessee Public Participation Act, without which representations like this would be financially infeasible.  The victory also makes thirteen straight Tennessee Court of Appeals wins for the Horwitz Law appellate practice team dating back to 2023, but who’s counting.

And congratulations to Tennesseans who support governmental accountability!  Last week, your Summarist raised concerns about the Attorney General’s efforts to make it impossible to win injunctions against state actors for breaking the law (which the Tennessean later wrote up here; your Summarist is quoted).  Shortly afterward, the bill failed in the Senate judiciary committee and House sponsors withdrew, so the cynical effort appears dead.