July 13–August 9, 2024

• Three Fayetteville Aldermen file heinous SLAPP-suit against two Constituents for petitioning them, see their claims dismissed under the Tennessee Public Participation Act.  The Aldermen appeal the dismissal, but right before they have to file their brief, they voluntarily dismiss their appeal.  Constituents: Not so fast.  Fee-shifting awards arising from successful TPPA Petitions are mandatory, so the Aldermen should have to pay fees for the time they made us devote to this bogus appeal, too.  Tennessee Court of Appeals: Just so.  Thus, “[w]e grant the request of [Constituents] for attorney’s fees, costs, and expenses incurred on appeal.”  (This is a Horwitz Law, PLLC case.)
• Dispute between Delaware Corporation and retained Expert results in $433,000.00 arbitration award for the Expert.  The Expert then seeks to confirm the award in Tennessee, where the corporation was once registered some twenty years ago.  The trial court denies the Delaware Corporation’s motion to dismiss for lack of personal jurisdiction and awards attorney’s fees against it.  Will one of Tennessee’s most-frequently-reversed trial court judges—who had a reversal rate of over 50% at your summarist’s last count—from one of Tennessee’s most-reversed jurisdictions get reversed again?  Tennessee Court of Appeals: Yep.  The Parties’ Agreement “had nothing to do with Tennessee in any manner. The Agreement was not signed in Tennessee. The work required under the Agreement by Plaintiff was not performed in Tennessee. The litigation underlying the Agreement was not in Tennessee.”  So the motion to dismiss should have been granted for lack of personal jurisdiction, and everything the trial court did is vacated.
• Tennessee Court of Appeals: As a reminder, if you try a case to a jury and want to preserve appellate issues, you’ll generally need to move for a directed verdict before the case is submitted to a jury, and you’ll need to file a motion for a new trial after the verdict.  Otherwise, as here, everything you argue on appeal will be treated as waived.  Unfortunately, though, because this is a not-for-citation memorandum opinion, appellate practitioners can’t quote our crisp statement that: “It is simply not this Court’s responsibility to remedy a party’s technical errors and also develop the legal basis for their argument.”
• Tennessee Court of Appeals: Speaking of not-for-citation memorandum opinions, it is generally frowned upon for an attorney to furnish a court “with an altered copy of” a Court of Appeals opinion that omits a footnote stating that, “as a memorandum opinion, [it] is not to be cited or relied on in any unrelated case pursuant to Tenn. Ct. App. R. 10.”  And because a misbehaving attorney did that here and got a trial court to “rel[y] heavily” on the non-citable opinion in its ruling below, the judgment below is vacated with instructions to reconsider whether a motion for enlargement of time should be granted.
• This seemingly complex litigation over a trust and alleged breach of a fiduciary relationship is significantly less daunting than it may seem. Tennessee Court of Appeals: That’s because an indemnity agreement in the case is enforceable and released all of the claims asserted here, so the claims were properly dismissed and the defendants get their attorney’s fees.
• Pro se litigant files a Health Care Liability Act claim.  Tennessee Court of Appeals: And all the readers of this newsletter who immediately guessed that the claim was dismissed for HCLA noncompliance guessed wrong!  It was actually dismissed as time-barred, and because this appeal is also time-barred, it’s dismissed as well.
• Tennessee Court of Appeals: As a reminder, Rule 54.02 certifications are not supposed to be granted as a matter of course.  Instead, two prerequisites must be met: “(1) the order must eliminate one or more but fewer than all of the claims or parties, and (2) the order must expressly direct the entry of final judgment upon an express finding of ‘no just reason for delay.’”  And the latter requirement is governed by a five-factor test that requires meaningful analysis.  Here, because those factors weren’t analyzed and “there is ample reason to delay appellate review,” we find the Rule 54.02 certification improper and dismiss this appeal for lack of subject matter jurisdiction.
• Tennessee Court of Appeals: As a second reminder,  Rule 54.02 certifications are not supposed to be granted as a matter of course, so this one gets dismissed, too—this time because the trial court’s order did not resolve a separable claim.
• Attorney’s tax-related advice regarding transferee liability results in lawsuit for legal malpractice following a long tolling period.  The case proceeds to a jury trial, and the jury determines: (1) the malpractice claim is not time-barred; but (2) there was no malpractice here.  Tennessee Court of Appeals: No error in refusing to take judicial notice of or admit various Tax Opinions, which were hearsay.  No errors otherwise, either, because the trial court got things right or the claims of error asserted were waived.
• After losing election—but just before his term of office expires—trial court judge presiding over divorce litigation “enter[s] a one-page order adopting Wife’s 59-page proposed findings of fact and conclusions of law in full.”  Tennessee Court of Appeals: Trial courts can enter party-prepared orders under various circumstances, none of which existed here.  We also tolerate trial courts entering party-prepared orders that contain “limited alterations made by the trial court,” since that confirms that the trial court isn’t just entering “a verbatim copy of what was submitted” and is exercising some “independent judgment.” Such “independent judgment” is utterly lacking here, though, because “[w]ithout stating on the record in advance how he intended to rule or why, [the trial court] merely adopted Wife’s proposed findings of fact and conclusions of law in full.”  So the judgment below is vacated, and because the judge who entered it is no longer a judge, a new trial is necessary.
• Pro se Defendant fails to pay HOA fees, leading to HOA filing a lien on Defendant’s property and ultimately suing her for past-due assessments, interest, and fees.  HOA wins summary judgment, but Defendant does not comply with the Court’s order to pay.  So the HOA moves the trial court to order a judicial sale to satisfy the judgment under Tennessee Rule of Civil Procedure 70, which your summarist only just now learned was a thing.  The trial court grants the motion, and the Defendant appeals.  Tennessee Court of Appeals: The first issue presented is waived, and the second is “little more than a Hail Mary prayer for relief based on the fact she was pro se.”  So the trial court’s judgment is affirmed.
• Wife alleges “192 counts of criminal contempt” related to Husband failing to submit to court-ordered drug and alcohol testing.  Husband does “not respond to any of the petitions” and, following trial, is found guilty of 142 counts of criminal contempt.  Husband is fined for each count and sentenced to five consecutive 10-day jail sentences related to five of the counts, with all but 30 days suspended subject to his future compliance with court orders.  Tennessee Court of Appeals: Two of the convictions that resulted in a jail sentence are reversed for insufficient evidence.  Further, because the trial court’s sentencing analysis was inadequate, its sentencing order is vacated for reconsideration.  Everything else is fine, though.
• Tennessee Department of Transportation terminates a preferred service employee, resulting in an administrative appeal (that affirms the termination) followed by judicial review (that reverses it).  Tennessee Court of Appeals: Everyone knows that—unless you can identify a legal error like the ones the Tennessee Board of Parole, prison disciplinary boards, or the Davidson County Election Commission are constantly making—appellants can basically never beat the super lax “substantial and material evidence” standard of review that governs appeals of administrative decisions.  Thus, the administrative law judge’s termination decision should not have been reversed, and the employee’s termination is reinstated.
• Employee enters into a workers’ compensation settlement agreement with Company but later attempts to recover against Company in tort (which you generally can’t do, since “workers’ compensation law provides the exclusive remedy for an employee who is injured during the course and scope of his employment, meaning the employee is precluded from seeking tort damages for the injury.”).  Employee: There was fraud, so I should be allowed to sue.  Trial Court: Nope.  Two-thirds of a Tennessee Court of Appeals Panel:  “Based on [Employee’s] failure to provide citations to the record within the section of his argument regarding the supposed viability of his fraud theory and a claim for misrepresentation, he has waived any issue regarding same.”  One-third of a Tennessee Court of Appeals Panel, dissenting: “[E]very fact that [Employee] failed to cite in the argument section was cited in the fact section of his brief,” so we should excuse the non-compliance here, particularly given that Company “did not seek dismissal based upon a violation of Rule 27 or even note” one.
• While servicing Defendant’s property, Plaintiff is seriously injured after falling through a debris-covered skylight on the roof of Defendant’s building.  Plaintiff then sues Defendant, alleging that the skylight constituted a dangerous condition and the Defendant failed to warn of its existence.  Trial Court: Because the Plaintiff rested his case-in-chief without calling the Defendant as a witness, the Plaintiff can’t prove the Defendant had actual or constructive notice of the condition, so the Defendant gets a directed verdict.  Tennessee Court of Appeals: Wrong.  There was abundant evidence—including an admission in the Defendant’s answer—that the Defendant knew about the dangerous condition and failed to warn the Plaintiff about it, so the trial court’s order granting the Defendant a directed verdict is reversed.
• Husband petitions for an order of protection against Wife, alleging stalking.  Trial court denies Husband’s petition and awards Wife attorney’s fees.  Tennessee Court of Appeals: The trial evidence did not “establish an immediate and present danger of abuse to him or the children,” and “Husband further testified that he was not fearful for his or the children’s safety throughout the pertinent time period,” so Husband’s petition was properly denied.  The attorney’s fee award is reversed, though, because to support such an award, a trial court must find (but did not find here) that the petitioner is not a qualifying victim and knew that the allegations in the petition were false.
• Tennessee Court of Appeals: “Plaintiff’s failure to appreciate the nature of the trial court’s action has of course resulted in an appellate brief that diverts attention away from the actual issue that was at the center of the trial court’s disposition.”  Moreover, Plaintiff’s brief “suffers from more than just a mere misunderstanding of the trial court’s ruling,” given that it “is noncompliant with appellate briefing requirements in multiple respects.”  All of this means two things: (1) you definitely overpaid for your appellate attorney; and (2) all of your issues on appeal are waived and your appeal is dismissed.
• After Nurse’s purse is found “bulging” with her Employer’s aesthetics products, Employer has her arrested and prosecuted.  But wait!  Nurse has an exonerating explanation, so the jury acquits.  Nurse then sues Employer for malicious prosecution, and (after Employer apparently overlooks a ton of available defenses) a jury awards her $325,000.00 in damages on a rare “malicious continuation” theory despite finding that Employer initiated criminal proceedings with probable cause.  Tennessee Court of Appeals: There is material evidence to support the jury’s verdict.
• “This case involves a disputed easement.”  And because of that and the fact that the decision involves reviewing a bunch of deed terms, you will have to read the Tennessee Court of Appeals’ holding that an easement exists yourself.
• Insurance Company does what insurance companies do (collect premiums, deny claims).  Tennessee Court of Appeals: Taking the evidence in the light most favorable to the Insured—which the trial court neglected to do—“a genuine issue of disputed material fact exists as to whether [Insurance Company] had a history of accepting late payments in exchange for keeping the [Insured’s] insurance policy in force,” so the trial court’s summary judgment order for Insurance Company is reversed.
• Landlord wins General Sessions Court judgment against Tenant for back rent and damages, which the Circuit Court reduces on de novo appeal.  Tennessee Court of Appeals: And because pro se Landlord’s brief is unintelligible and violates briefing rules, the Circuit Court’s ruling will stand.
• Petitioners: We would like to be able to visit our half-siblings, please.  Tennessee Court of Appeals: Parental rights are constitutionally protected, superior, and exclusive here.  Thus, without parental consent, non-parents can’t even petition for visitation, let alone get it—that is, unless they happen to be within the special class of people (grandparents) who have successfully lobbied for their own special visitation statute and gotten the Supreme Court to bless the theory.
• Following auto accident, insurance company provides uninsured motorist coverage but asserts it is entitled to setoffs.  Tennessee Court of Appeals: This record is very light, but there are genuine issues of material fact as to whether the plaintiff was entitled to additional workers’ compensation benefits but waived them.  As a result, the trial court’s order granting summary judgment to the insurance company was inappropriate and is now reversed.