March 30–April 5, 2024

  • One member of Catch22Nashville, LLC—a gastropub—sues some other members.  Tennessee Court of Appeals: The major major major major problem with this lawsuit is that the LLC’s operating agreement provides that “[v]enue for any dispute arising under this LLC Agreement or any disputes among any Members”—which this lawsuit is—“will be in the county of the Company’s Registered Office[,]” which is located in Oconee County, Georgia, not Wilson County, Tennessee.  So the trial court’s order dismissing the case for improper venue based on the operating agreement’s forum selection clause is affirmed.
  • Tennessee Court of Appeals (2022): Trial courts cannot look beyond the face of a durable Power of Attorney form to determine whether the subject of the POA had the mental capacity to execute it.  Tennessee Supreme Court (2023): Incorrect, try again.  Tennessee Court of Appeals (2024): In that case, “we agree with the trial court that there is clear and convincing evidence that [the signatory] was ‘incompetent, and unable to . . . appreciate the gravity of signing the [POA]’ and that he suffered from diminished cognition that prevented him from appreciating the effect of the POA.”  So the parties’ dispute is not subject to arbitration, because the parties’ arbitration agreement required a valid POA to be enforceable.
  • Dispute arises between Insured and his Insurance Company.  Before litigation commences, Insurance Company offers to settle for $34,000.00; Insured responds by asking Insurance Company to “please include amount for pain and suffering.”  Insured then declines to submit to a deposition despite a provision in his insurance agreement requiring him to “[a]nswer questions in person, under oath in Tennessee when asked” by insurer.  Tennessee Court of Appeals: There was no enforceable settlement agreement here; placing conditions on one’s acceptance or varying the terms of an offer “constitutes a rejection of the original offer and initiation of a new offer.”  Additionally, “based on the facts in this case, we conclude that the trial court did not err in determining that [Insured’s] refusal to submit to an examination under oath constituted a material breach of the insurance policy.”
  • Wife, during divorce proceedings: Property that my husband owns in Nigeria should be considered when valuing our marital estate.  Husband:  What’s she talking about?  I have no idea what she’s talking about.  Tennessee Court of Appeals: Given Husband’s testimony that he “believed proceeds from the parties’ prior Arkansas residence were used towards purchasing Nigerian property,” and given that Husband “designated property in Nigeria” in response to an interrogatory asking him to describe the real property he owned, and given that Husband “acknowledged he had pursued [an] eviction action” in Nigeria at trial, it seems like she’s probably talking about the property Husband clearly owns in Nigeria.  So we vacate the trial court’s division of the marital estate and remand the matter for the trial court to take the particular property into consideration.
  • Claims Commission: The State of Tennessee has to pay $187,398.23 to student who suffered a broken arm after slipping on a wet, negligently maintained bathroom floor at UT.  Tennessee Court of Appeals: The Claims Commission’s damages award—which reflects $45,000 for pain and suffering; $45,000 for permanent injury; $20,000 for scarring/disfigurement; and $30,000 for loss of enjoyment of life—was well-supported, so the State has to pay up.
  • This appeal arises out of the probate proceedings of an estate (boo!).  More specifically, this appeal concerns a Tennessee Rule of Civil Procedure 54.02 finality certification of a partial summary judgment order (yay!).  Tennessee Court of Appeals: “For the purposes of Rule 54.02, a claim ‘is defined as the aggregate of operative facts which give rise to a right enforceable in the courts.’” Here, the aggregate of facts relevant to the certified-as-final claim is necessarily applicable to other unadjudicated issues and would require repeated review in a subsequent appeal, so the trial court erred in certifying the partial summary judgment order as final.  As a result, this appeal is dismissed for lack of subject matter jurisdiction.

Firm Highlights

The Tennessee Department of Revenue really wants to be able to censor the messages on Tennesseans’ personalized license plates to ensure that they conform to government-approved viewpoints.  But as the Tennessee Court of Appeals unanimously held last year, personalized plates pretty clearly are not the government’s speech, so the First Amendment applies here.  This week, the Horwitz Law, PLLC team went to the Tennessee Supreme Court to defend client Leah Gilliam’s right to a personalized license plate that she displayed without controversy for over a decade.  You can watch the argument here: https://www.youtube.com/watch?v=DPWyd2RDPOA.  Come for the important discussion about the dangers of an overexpansive government speech doctrine, stay for the correct pronunciation of “PWND.”  You can also read our excellent briefing here: https://horwitz.law/wp-content/uploads/Brief-of-Appellee-Leah-Gilliam-Stampfiled-1.pdf