August 2–22, 2025

  • Town sues LLC and the LLC’s Individual Members over alleged misrepresentation made by one Member about the LLC’s willingness to pay for traffic improvements in connection with a development project.  The LLC’s Individual Members dispute that they can be sued individually, and the matter reaches appeal following a joinder controversy.  Tennessee Court of Appeals: “LLC membership affords protection to members from exposure to liability for the company’s acts, but it is not a license for an LLC member to avoid individual liability for that person’s own acts or omissions.”  So the Individual Member who made the alleged misrepresentation can be sued individually, but the Individual Member who “just attended the hearing” at which the alleged misrepresentation was made cannot be.
  • Plaintiff files a Rule 41.01 notice of voluntary dismissal (a nonsuit) concerning only one of its claims, which the trial court grants without objection from the Defendants.  Long afterward, the Defendants insist that Rule 41.01 actually does not allow for dismissals of only some claims in an action.  So the Defendants insist—dubiously—that the Plaintiff’s entire action must be dismissed (rather than arguing that the partial nonsuit should be vacated), and the Trial Court—dubiously—grants them that relief.  Afterward, the Plaintiff appeals.  Tennessee Court of Appeals: Under federal law, “the correct way to dismiss one or more but fewer than all the claims in a lawsuit is through an amended complaint.”  Rule 41.01 also refers to dismissal of the “action,” not individual claims in it.  But longstanding practice confirms that “Rule 41.01 is broadly understood in Tennessee as allowing the voluntary nonsuit of [some] causes of action within a lawsuit,” so we hold that the Plaintiff was allowed to take a partial nonsuit under Rule 41.01.  We also note that the Defendants initially “agreed with the trial court” that the partially nonsuited claims had been dismissed and now ask to be rewarded for “l[ying] in wait for nearly two years after failing to object to Plaintiff’s action.”  So we reverse (and unrelated to any of that, we rule that spoliation of evidence is not a cause of action).  Editorial note: Though definitely correct in result, this decision probably is not correct on the main point at issue.  Treating individual claims within an action as “the action” is bizarre, and this case puts Tennessee out of step with a near-identical federal rule.  That said, the result is right, and there are multiple alternative bases for getting to it, including: (1) holding that the Plaintiff’s Complaint was constructively amended by consent of the Defendants; and (2) holding that, even if partially nonsuited in error, the Defendants waived opposition to that error by acquiescing in it.
  • Metro Nashville enacts home-business ordinance that restricts customer visits for some home-based businesses but not others.  The customer-visit prohibition does not apply to owner-occupied short-term rental properties, home-based daycares, historic-home event venues, or businesses on residential property rezoned as an “SP district.”  By contrast, the customer-visit prohibition does apply to the Plaintiffs—a record producer and a hairstylist, respectively—who received anonymous complaints about their violations of the customer-visit prohibition and then sued to invalidate it.  Tennessee Court of Appeals:  Although there would be no problem with a blanket restriction on customer visits to home-based businesses, “[w]e conclude that Plaintiffs’ businesses are similarly situated in all material respects to home-based daycares, historic-home event venues, owner-occupied STRPs, and homebased businesses on property rezoned as SP districts with respect to the purpose of the law.”  We also conclude, based on the undisputed record evidence, that there is no rational basis for treating the Plaintiffs’ businesses differently, because “there are no real and substantial differences between [the Plaintiffs’] businesses and the Exempt Businesses that are ‘germane to the purpose of the law.’”  So customers can come to the Plaintiffs’ homes on the same terms that customers can come to other home-based businesses.
  • Two inmates who are serving life sentences (which Tennessee law defines as determinate 60-year sentences) for First-Degree murder file separate declaratory judgment actions asserting that they have a right to earn sentence credits for good behavior (known colloquially as “good time”).  The State opposes relief, asserting that the inmates are not entitled to good time credits.  Tennessee Court of Appeals (twice): The relevant statute concerning good time credits applies to all inmates unless otherwise specified, and the legislature has not specifically prohibited applying good time credits to inmates who are serving life sentences for First-Degree murder.  So the inmates win.
  • Tennessee Court of Appeals:  “During this lawsuit, it appears that Plaintiffs missed every single deadline[.]”  And with that context in mind, “we find that the trial court did not abuse its discretion in enforcing the deadlines set forth in the Scheduling Order” by striking the Plaintiff’s untimely response to the Defendant’s motion for summary judgment and treating the outcome-determinative facts asserted in the Defendant’s motion for summary judgment as being unopposed.
  • Is a prior judgment “on the merits” for res judicata purposes when it is dismissed with prejudice?  Tennessee Court of Appeals:  …Yeah.  And because “standing in Tennessee is not a jurisdictional prerequisite,” an involuntary dismissal for lack of standing can “operate[] as” an adjudication on the merits under Tennessee Rule of Civil Procedure 41.02(3), too.
  • Dispute between neighboring property owners devolves into contentious litigation.  The trial court dismisses most of the Plaintiff’s claims but allows a private nuisance claim to survive.  Following a Rule 54.02 certification, the Plaintiff appeals.  Tennessee Court of Appeals, in an opinion most notable for the broader issues of law it identifies: (1) the Plaintiff’s broadly-worded, single-issue Statement of the Issues, combined with his limited argument section, preserves only one issue for review and waives everything else; (2) Tennessee’s frivolous appeal statute only applies to frivolous appeals, not frivolous motions; (3) court orders must be interpreted like other written instruments; and (4) affirmative defenses, which are a defendant’s burden to prove, can be granted as part of a motion to dismiss only when the allegations in a plaintiff’s complaint “‘show that an affirmative defense exists and that this defense legally defeats the claim for relief.’”
  • State Employee receives radiation therapy to treat prostate cancer.  The State’s health insurance company then denies authorization for the treatment and does not cover it.  After State Employee pursues administrative remedies, the Claims Commission finds that the treatment was not a covered expense, and State Employee appeals.  Tennessee Court of Appeals (which considered the case concurrently with a related case about tongue cancer that was decided in February 2025): “[T]he policy . . . clearly identified the requested . . . treatment of prostate cancer as investigational [rather than medically necessary], thereby establishing that it was not a covered benefit at the time of Employee’s need for treatment[.]”
  • Trial Court awards judgment to Landlord, granting Landlord possession of rented property and a money judgment for unpaid rent.  Tenant (pro se) appeals.  Tennessee Court of Appeals: Tenant’s brief contains “no table of authorities, no statement of the issues presented for review, no statement of the case, no citations to the record, no citations to authority, and no certificate of compliance with Tennessee Rule of Appellate Procedure 30(e).”  Beyond that, “it is unclear from the [Tenant’s] briefing what his argument for reversible error in the present case is.”  So we dismiss the appeal for failure to apply with briefing rules.
  • Pro Se Litigants file accelerated interlocutory appeal of trial court order denying their motion to recuse.  Tennessee Court of Appeals: And we will consider it on its merits!  (Which happens very rarely.)  That said, they lose; their claims of bias were raised too late and lack merit in any event.
  • Two Brothers dispute who owns property (a farm) owned by their Father at the time of his death.  Brother #1: I am the sole owner because I had an oral agreement with Father in which he agreed to give me sole ownership of the farm upon his death in exchange for my moving to the property to work it and care for him.  Brother #2: I don’t think that’s true or legit, so I own half the farm.  Trial Court: Brother #1 is not credible and didn’t perform anyway.  Tennessee Court of Appeals: Affirmed; Brother #1 “failed to establish that a contract to make a will existed,” and even “assuming an oral agreement existed, the evidence supports the trial court’s findings that [Brother #1] failed to fully perform his obligations.”
  • Neighboring property owners sue one another, primarily over the legality of a concrete wall.  After a bench trial, the Trial Court issues a mandatory injunction ordering that the concrete wall be removed on the basis that it violates a setback ordinance.  The losing neighbor appeals.  Tennessee Court of Appeals: For reasons specific to the Maury County zoning ordinance at issue, “[t]he concrete wall is not a building . . . and, thus, does not qualify as an accessory or detached building” that must comply with the setback requirement.
  • Plaintiff (who is better known for being a crazy and formerly relevant politician) contracts with Contractor to build Plaintiff a home.  Conflict then ensues, and litigation follows.  Trial court rules for the Plaintiff, and Contractor appeals.  Tennessee Court of Appeals: It’s undisputed that the contract in question exceeded the monetary limit that applied to Contractor’s license.  And Contractor breached the contract first by stopping work on the project and failing to transfer title on the closing date.  So Plaintiff wins, and she is entitled to all her attorney’s fees under the fee-shifting provision of the Parties’ contract, too.
  • Tennessee Court of Appeals: Pro tip: If you don’t file an affidavit of service or service return in the record indicating what you served by certified mail, it’s not going to be possible for us to rule that you were entitled to a default judgment.  And if you fail to offer any evidence at trial to support your substantive claims, then we are going to affirm the trial court’s order involuntarily dismissing your case, too.
  • “[T]he Tennessee Supreme Court has, in its own words, ‘refined the discovery rule to make clear that it include[s] not only the discovery of the injury but also the discovery of the source of the injury.’”  But plaintiffs also “have a duty to investigate and discover pertinent facts ‘through the exercise of reasonable care and due diligence.’”  Given these rules, is a plaintiff entitled to tolling under circumstances when she didn’t know the source of her injury but the source of her claimed injury was listed on the Secretary of State’s website?  Tennessee Court of Appeals:  Maybe yes, maybe no.  But since the Trial Court ruled against the Plaintiff on two grounds and the Plaintiff appealed only one of them, we must affirm the trial court’s unchallenged ruling without considering the other one.
  • Mother petitions for an Order of Protection against Father, which the Trial Court denies after hearing based on its conclusions that Mother was not credible and failed to prove her claims.  Afterward, Mother appeals.  Tennessee Court of Appeals: “Giving proper deference to the trial court’s assessment of witness credibility, we have determined that the evidence does not preponderate against the trial court’s factual findings.”
  • Tennessee Court of Appeals: “This case contains an incredibly protracted and complicated procedural history.”  Luckily for you, though, your Summarist has read it for you.  And the only thing you need to know is that the Petitioners in this case pursued an interlocutory appeal of a non-final agency ruling, which the trial court correctly dismissed for lack of subject-matter jurisdiction because a normal petition for judicial review of the agency’s final action would be adequate.

Firm Updates

Congratulations to Horwitz Law, PLLC client Layla Soliz!  Last year, Mrs. Soliz sued Knox County over its policy of photographing observant Muslim women without their hijabs.  A year later, Knox County has now paid Mrs. Soliz to settle her damages claims, deleted the illicit photos it took of her, changed its policy, and just agreed to pay Mrs. Soliz again.  If you are wondering whether all of this could have been avoided by respecting basic religious rights and whether this was a sensible use of taxpayer resources, the answers, respectively, are yes and no.