February 23–March 1, 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.

• Trustee interpleads funds that were to be distributed to Beneficiary but were subject to claims by other parties.  The trial court grants Trustee permission to deposit the funds, discharges him from liability, and then considers claims asserted by various parties to the rest of the interpleaded funds.  During the interpleader action, Law Firms (including a reportedly “high-powered” one) that represented Beneficiary in other litigation assert a charging lien against the trust distributions and a claim to the interpleaded funds.  After hearing, the trial court finds no proof of a charging lien, and Law Firms appeal.  Tennessee Court of Appeals: Law Firms’ arguments are irrelevant “diversionary tactic[s],” unpreserved, abandoned, or have changed on appeal.  And “[h]aving determined that no attorney charging lien existed, we conclude that the [Law Firms] are not entitled to the interpleaded funds.”
• Years after filing serial voluntary dismissals in a case, Plaintiff files a Rule 60 motion asking that “the entire matter be re-opened” based allegedly on having received bad advice from his earlier counsel.  The trial court denies the motion, and Plaintiff appeals.  Tennessee Court of Appeals: Rule 60 motions need to be filed within a reasonable time, and the Plaintiff’s wasn’t.  And the Plaintiff has not shown that there would be any basis for granting a Rule 60 motion anyway.  So we affirm and also award frivolous appeal fees as a sanction.
• In dispute between equal-share partners of an LLC, the trial court appoints a Special Master under rarely-used Tennessee Rule of Civil Procedure 53.  After an evidentiary hearing, the Special Master finds that Defendant unilaterally sold LLC assets below market value in breach of Defendant’s fiduciary duty.  Defendant does not file any objections to the Special Master’s report but appeals when the trial court adopts the findings in the report as its own.  Tennessee Court of Appeals: “Tennessee Rule of Civil Procedure 53.04(2) provides a mechanism for a party to dispute a Special Master’s findings of fact”—it requires litigants who have objections to file them in 10 days—and Defendant didn’t do that here.  Nor is there any indication that “the trial court failed to exercise its independent judgment and instead merely ‘rubber stamped’ the Special Master’s report” (which trial courts aren’t allowed to do).  So we affirm.
• Plaintiff seeks to proceed directly against Insurance Company (her uninsured motorist insurance carrier) after failing to serve the other Driver in a car accident.  Insurance Company moves to dismiss Plaintiff’s claim on the ground that the Plaintiff failed to properly commence a claim against the Driver.  Trial court agrees and dismisses the Plaintiff’s claim, and Plaintiff appeals.  Two-thirds of a Tennessee Court of Appeals Panel: “There can be no legal liability established against an uninsured motorist carrier without first properly commencing a claim against the tortfeasor.”  And while a service return stating that a person is “not to be found in my county” is a legal term of art that would normally allow the claim to proceed, “[h]ere, the written notations of the process server explicitly contradict the definition of a ‘not to be found in my county’ situation” because they indicated that the Driver was “avoiding service/said he would not cooperate.”  Thus, the Plaintiff “was not entitled to by-pass the terms of Tennessee Rule of Civil Procedure 3 [governing reissuance of process], and the statute of limitations ran as to her claim against Mr. Neal when she failed to reissue service.”  Judge Smith, Dissenting: The plain language of the uninsured motorist statute triggered coverage here because the service return stated that the Driver was not to be found after a diligent search.  And the majority’s determination that “the trial court’s ‘finding’ that Defendant was at home was not challenged” unreasonably restricts the permissible scope of review here.  [Editorial note: The majority’s decision is definitely wrong.  The apparently assumed fact that the Driver was located “at his residence” in the county because he “said” he would not cooperate is unreasonable; process servers regularly call people they are serving; the Driver’s phone number was printed alongside this notation on the service return; and there does not appear to have been any record support for the trial court’s finding that the Driver was actually located in the jurisdiction.]
• Pro Se Litigant files accelerated interlocutory appeal of a trial court order denying his motion to recuse.  Tennessee Court of Appeals: And it’s dismissed for {spins wheel} untimeliness.  [Editorial note: The opinion confusingly recounts how deadlines are counted in a way that is sure to cause problems down the road, implying that deadlines “beg[i]n to run on the day after” an order enters.  The better and more accurate framing is that deadlines begin to run on the day an order enters, but that the day an order enters does not count as the first day when calculating the relevant deadline.  In other words, one day from Monday is Tuesday, not Monday or Wednesday.]
• Pro Se Litigant files accelerated interlocutory appeal of a trial court order denying her (fourteenth!) motion to recuse.  Tennessee Court of Appeals: Fourteenth time’s a charm!  The trial court judge is ordered recused.  (Just kidding, the appeal is dismissed because Pro Se Litigant’s appeal of the trial court’s final judgment is pending simultaneously, and the same issue can be raised there.)
• Pro Se Litigant files a medical malpractice action against the State in the Tennessee Claims Commission, where it is dismissed for deficient pre-suit notice and because the certificate of good faith appended to Pro Se Litigant’s amended complaint was deficient.  Pro Se Litigant appeals only the first holding.  Tennessee Court of Appeals: Pro Se Litigant “offers no argument on the Claims Commission’s alternative holding that the certificate of good faith filed with the amended complaint in this instance is defective.”  And “where a trial court provides more than one separate and independent ground for its judgment and a party fails to appeal one or more of the independent grounds, we must affirm the judgment of the trial court on the ground that was not challenged on appeal.”
• Highly fact-specific dispute between owner and CFO over an alleged promise to pay a 10% profits bonus spills into litigation but is dismissed on summary judgment.  Tennessee Court of Appeals: “Plaintiff’s proof, when viewed in the light most favorable to him, sufficiently describes the when, where, and what of the alleged oral contract[,]” so that claim should have been permitted to go forward.  Ditto for Plaintiff’s promissory estoppel claim.  No dice for the Plaintiff’s promissory fraud claim or unjust enrichment claims, though.

Firm Updates

Congratulations to Horwitz Law client Glenn Whiting!  A few months ago, Mr. Whiting (via an affiliated property) was subjected to one of the most flagrantly bogus censorship efforts your Summarist has ever encountered.  But the District Attorney’s obscenity lawsuit is now dismissed for failure to state a claim (following a roughly five-month prior restraint), and now Mr. Whiting can continue telling people that “Mayor Larry Eaton tells citizen FUCK you after Court said city violated law.”