March 22–April 18, 2025

  • One of Tennessee’s most-reversed trial court judges is assigned a procedurally complex de novo General Sessions appeal of a granted stalking-based order of protection.  Halfway through the trial on the stalker’s de novo appeal to Circuit Court, the stalker nonsuits his appeal.  The nonsuit triggers a rule that the General Sessions Court’s judgment granting the order of protection must be affirmed.  Nevertheless, the trial court denies the stalking victim fees and discretionary costs associated with the proceeding, and it for some reason rules that the stalking victim is not a prevailing party.  Tennessee Court of Appeals: The trial court fouled up most of this.  It was right to enter an order affirming the General Sessions Court’s judgment, which Tennessee law required.  However, its determinations that the stalking victim was not a prevailing party, that she was not entitled to fees, that all attorney’s fees incurred by the stalking victim were unreasonable, and that the stalking victim was not entitled to any discretionary costs are uniformly wrong.  Thus, the bulk of what the trial court ruled is reversed, the case is remanded for an award of reasonable attorney’s fees, and the stalking victim gets her attorney’s fees on appeal, too.  [Editorial note: No mention in this appeal—because no one seems to have raised it—of how the Circuit Court’s interlocutory order reinstating the stalker’s firearm rights can lawfully survive the stalker’s later nonsuit of the appeal, which necessarily required the contrary General Sessions Court order to be affirmed.  If that issue had been appealed, the trial court would have been reversed on it, too, though.   See Frank Rudy Heirs Assocs. v. Sholodge, Inc., 967 S.W.2d 810, 813 (Tenn. Ct. App. 1997) (“[U]pon dismissal, any interlocutory orders are merely part of the proceedings dismissed and have no binding effect.”).
  • Tennessee Court of Appeals: Given that the same frequently reversed trial court judge discussed above issued orders—in a divorce case—that contain conflicting rulings on the same essential issue, he gets to do that one over, too.
  • Trial court certifies as final, under Rule 54.02, an interlocutory order dismissing some (but not all) defendants from a multi-defendant case.  It makes no findings supporting its certification ruling, however.  Afterward, the plaintiff appeals.  Tennessee Court of Appeals: “[T]he Tennessee Supreme Court has ‘discouraged the certification of interlocutory judgments as final, particularly if it results in piecemeal appellate review.’”  And “the trial court simply stated that there was ‘no just cause for delay’ without giving any explanation for its decision to certify the order as final” and without considering any of the relevant factors.  Further, “[b]ased upon our review of the relevant factors, which the trial court failed to consider in its order, we conclude that the trial court’s order dismissing only four defendants was improvidently certified as final and therefore dismiss the appeal for lack of subject matter jurisdiction.”
  • Plaintiffs file an election contest challenging Metro voters’ approval of a transit funding referendum, arguing “[w]ith little explanation” that a huge number of expenditures do not qualify as allowable transit expenses under Tennessee law.  Tennessee Court of Appeals: The Plaintiffs are almost entirely wrong.  “[T]he purchase of land for housing development and parks” is not an allowable transit expense, though, so that limited expenditure (a tiny portion of the plan) is impermissible.  Its inclusion in the approved referendum “will not invalidate the plan,” though.  [Editorial note: It’s unclear why Metro needed to pay outside counsel to defend this when it fully funds its own legal department.  Perhaps a contemplated reform that is designed to promote outside counsel spending transparency regarding such grifting arrangements will cut down on this sort of thing.]
  • Inmate (pro se) appeals a prison disciplinary decision punishing him for introducing drugs into the facility, which was based on a confidential informant report.  The inmate raises various procedural and substantive challenges to the disciplinary board’s ruling, but the trial court affirms it on certiorari review.  Tennessee Court of Appeals: No error here.  A material omission was cured by an amended administrative record, and as to his remaining claims, the inmate either doesn’t prove error or doesn’t prove that any error affected the outcome of his proceeding.  Thus, we affirm. [Editorial note: Despite prison disciplinary board proceedings being extremely unreliable, cases like this are super hard to win, given that the multiple layers of deference are difficult to overcome and prison records of disciplinary hearings are always a mess.  They aren’t impossible, though.]
  • Litigant files an accelerated interlocutory appeal of a trial court order denying a motion to recuse.  Tennessee Court of Appeals: Unlike some 95% of appellants who file such appeals, this one was procedurally compliant!  Nevertheless, we deny it on its merits.  “[A] judge may well be familiar with some or many members of the community, including practicing attorneys.  That does not mean a judge must automatically recuse from a case because she knows a party or attorney.”  So without more, there is no basis for recusal here.
  • Employee files a lawsuit against her Employers alleging sexual harassment and a variety of related claims.  The allegedly harassing conduct began before Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, but it allegedly continued afterward, too.  Employers seek to compel enforcement of Employee’s arbitration agreement, which the trial court denies.  Employers appeal.  Tennessee Court of Appeals: No error here.  The Employers fail to address the applicability of the continuing violation doctrine, on which we base most of our decision to affirm the trial court’s order denying their motion to compel arbitration.  And because Employee’s other claims are intertwined with her sexual harassment claim, those need not be arbitrated, either.
  • The former Deputy Commissioner of the Tennessee Department of Environment and Conservation files a “not a model of clarity” defamation complaint in the Tennessee Claims Commission asserting that various statements made by State officials in reference to his termination arising from a sexual harassment investigation (which he contends was a sham) were defamatory.  The Middle Division Claims Commissioner dismisses the Complaint, in its entirety, for failure to state cognizable defamation claims, and he also rules alternatively that any statements made by a Deputy Commissioner were absolutely privileged from defamation liability under the absolute executive privilege.  The former TDEC Deputy Commissioner appeals.  Tennessee Court of Appeals: The Claims Commissioner failed to treat important allegations in the Complaint as true—which was error—and complying with that elementary rule requires us to reinstate a couple of the defamation claims involved here.  The State of Tennessee also has not met its burden, on the present record, of demonstrating that the absolute privilege applies.  So we reverse and remand for further proceedings.
  • In a residential construction dispute, one party seeks to enforce an arbitration provision against another.  Though the parties entered into a contract that contains an arbitration clause, the arbitration clause was not separately signed or initialed.  That potentially matters, because at the time of contracting, Tennessee’s Uniform Arbitration Act required that agreements to arbitrate regarding residential structures be separately signed or initialed.  The Federal Arbitration Act contained no such requirement, though.  Tennessee Court of Appeals: The transaction at issue here involves interstate commerce, so the FAA governs this dispute.  As a result, the arbitration agreement is enforceable, and the trial court’s order holding otherwise is reversed.  We also decline to consider this appeal frivolous, because the appealing party won, and the party asserting that the appealing party’s appeal was frivolous lost.  [Editorial note: Oof.]
  • Rural landowners build a home, other improvements on property that they think is within their boundary line but turns out to be on their neighbor’s property.  Many years later, Neighbor sues to eject them.  Trial court: The landowners actually, exclusively, continuously, openly, and notoriously used the property for more than the statutory period of seven years, so they now own the property through adverse possession, and here is the new border line.  Both parties appeal, asserting respectively that the new border line was too expansive or too restrictive.  Tennessee Court of Appeals: “Because the parties have failed to ensure that the meaning of nonverbal testimony as to the locations on the exhibits was reflected in the record, the record is insufficient to demonstrate error by the trial court.”  So we affirm.
  • Tennessee Court of Appeals: A different litigant loses his adverse possession claim because he did not prove clearly and convincingly that his asserted use was continuous or open, though.
  • Pro se Plaintiff files “a handwritten single-sentence complaint . . . , which, aside from listing the parties’ names and addresses, simply stated: ‘Tennessee Human Rights and Tenneesee [sic] Civil Rights Violation for 10 million dollars in damages.’”  The trial court dismisses the complaint on a motion for judgment on the pleadings, ruling that “Plaintiff’s Complaint fails as a matter of law to comply with the basic pleading requirements set forth in Tenn. R. Civ. P. Rule 8.01” as it “is devoid of any factual allegations and contains no information that gives the Court notice of the nature of the wrongs allegedly committed by the Defendant or the injuries allegedly sustained by the Plaintiff.”  Pro se Plaintiff appeals.  Tennessee Court of Appeals: Massive briefing deficiencies require us to dismiss this appeal, which we also deem frivolous because it had no chance of success.
  • Zoning dispute in Memphis suburb spills into court over whether a property’s proposed use is permitted by a 1957 rezoning that allowed certain non-conforming uses on the property.  The property owner refused to submit plans to the city administrative zoning body regarding its proposed use of the property before suing, though.  Nevertheless, the trial court rules in favor of the property owner, and the city appeals.  Tennessee Court of Appeals: Because the city was never allowed to rule on the proposed non-conforming use, the matter was not ripe for judicial review, and the trial court’s order is reversed.
  • Tennessee Court of Appeals: “The dispositive issue on appeal is whether Plaintiff substantially complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121,” Tennessee medical malpractice statute.  And given the Plaintiff’s failure to sign and date his medical authorizations—a “core” omission that rendered them useless—we have little difficulty concluding that Plaintiff did not substantially comply with the relevant notice requirements, and Plaintiff’s lawsuit is time-barred as a result.
  • Property Owner files a mandamus (?) and tort complaint against both her neighbor and her municipality seeking to enforce a local zoning ordinance.  The trial court dismisses the complaint in its entirety, and Property Owner appeals.  Tennessee Court of Appeals: “The trial court did not err in dismissing the first three counts in the complaint based on [Property Owner’s] failure to exhaust her administrative remedies[,] [s]o we do not address the parties’ arguments as to whether mandamus was otherwise appropriate.”  Further, Property Owner’s tort claim against the municipality was properly dismissed because “hyperbole and conclusory statements do not take the place of alleging actual facts,” and there are no facts pleaded that would permit Property Owner to maintain a negligent supervision claim.  Thus, we affirm.
  • While attending a gathering, Visitor falls from Tenants’ second-floor balcony.  Visitor later sues Tenants, asserting premises liability.  Tennessee Court of Appeals: There is no evidence, at all, that Tenants had actual notice of any dangerous condition or “should have known of the probability of an occurrence such as the one which caused [Visitor’s] injuries.”  So we affirm the trial court’s order dismissing the Visitor’s suit on other grounds.

Firm Updates

Congratulations to Horwitz Law, PLLC client the Nashville Banner!  After the U.S. District Court for the Middle District of Tennessee kept a huge volume of CoreCivic documents under seal, for years, based on two-word sealing orders, the Banner moved to intervene and unseal them.  And the U.S. Court of Appeals for the Sixth Circuit has now ruled, forcefully, that the trial court had no business behaving the way it did and vacated with instructions to apply actual sealing standards to the documents in question.  Read all about it: https://www.tennessean.com/story/news/local/davidson/2025/04/17/corecivic-documents-hidden-without-good-reason/83146860007/.  Special shout out to Public Citizen for doing all the heavy lifting.

And congratulations to Horwitz Law, PLLC client Wayne Potee!  Mr. Potee has the most sympathetic case for a commutation your summarist has ever encountered and has been screwed by procedural nonsense; nevertheless, the Board of Parole illicitly refused to make a recommendation on his application to the Governor.  Courtesy of a Davidson County Chancery Court ruling that is now final, Mr. Potee will get what he is due.

Your summarist also is thrilled to report that he’s back right where he belongs in 2025: Recognized on the Nashville Post’s annual Legal In Charge list primarily for a case that he is not handling as counsel and also hasn’t won.