December 7–December 20, 2024

  • Tennessee inmate files declaratory judgment action based on the Tennessee Constitution’s safe prisons clause, noting that he has been attacked once already, remains in danger, that the private prison operator that runs the prison has agreed to transfer him elsewhere, and that the Tennessee Department of Correction has inexplicably blocked the transfer.  Afterward, the TDOC moves to dismiss the lawsuit based on an administrative exhaustion defense raised for the first time in a reply brief that appends a bunch of purported evidence.  The trial court obliges and dismisses on exhaustion grounds.  Tennessee Court of Appeals: You can’t raise new arguments in a reply to a motion.  Or consider evidence at the motion to dismiss stage.  Or adjudicate affirmative defenses at the motion to dismiss stage.  So the trial court’s judgment is bigly reversed, which pretermits a bunch of other errors that were involved here, too.  No need to sanction the TDOC’s lawyers for making factual misstatements or to admonish the trial judge to respect the inmate’s rights, though.  [This is a Horwitz Law, PLLC case.]
  • After Morgan and Morgan (for the people) allegedly botches class action lawsuit concerning funeral homes wrongfully abandoning the remains of the class’s deceased loved ones, The People turn around and—as the same class—sue Morgan and Morgan for legal malpractice and breach of fiduciary duty.  The trial court certifies the class (again), and Morgan and Morgan appeals.  Tennessee Court of Appeals: “[W]e discern no error in the trial court’s conclusion that the proposed class be certified.”
  • Teacher is suspended for participating in scheme to alter high school football players’ transcripts (and lying about it), apparently to help them with NCAA recruiting.  Afterward, the school retains a law firm to conduct an independent investigation of the scandal; during that investigation, Teacher is dishonest again and even more evidence of his personal involvement in the scheme is discovered.  Teacher is then terminated, after which he seeks his reinstatement:  Possibly The Most Statistically Reversed Trial Judge In Tennessee, who is often described in this newsletter as having an over 50% reversal rate: I order the teacher reinstated, given that he was subjected to double punishment for the same offense.  Tennessee Court of Appeals: “There was certainly evidence considered at the time of the December 2017 termination which was not considered at the time of the October 2016 suspension,” and “[i]t is impossible for [Teacher] to have been disciplined for dishonesty with the [law firm] investigators by the 2016 suspension,” so the aforementioned judge is reversed again, and the decision to terminate Teacher is reinstated.
  • Decedent’s radiology report reveals (in 2010) two masses in his kidneys that indicate renal cancer.  He’s not informed until 2015.  After he dies, his estate sues the doctors involved for negligence.  The doctors file a motion to dismiss the suit based on Tennessee’s three-year statute of repose, which the decedent’s estate opposes on fraudulent concealment grounds.  Tennessee Court of Appeals: “[I]t is undisputed that Defendants did not disclose the radiology report’s findings to Plaintiffs until 2015,” but that appears to be because they never read it themselves until then, and “[a] defendant cannot have taken steps, even by silence, to fraudulently conceal a wrong when he had no knowledge of the wrong done.”  Thus, while there is significant evidence of negligence, there is not evidence of fraudulent concealment, so the plaintiff’s claim is barred by Tennessee’s three-year statute of repose.  [Editorial note: Oof.]
  • Man suffers heart attack while driving, causes a wreck.  Tennessee Court of Appeals: Tennessee law recognizes something called the “sudden physical incapacitation doctrine,” and neither the Man’s “heart attack nor his physical incapacity was reasonably foreseeable,” so Man is not liable.
  • Man is investigated by DCS for claims that he abused adopted child who had a history of both sexualized behavior and credibility issues.  DCS initiates an administrative proceeding against Man; Man prevails because the evidence of his alleged abuse is insufficient.  Man then seeks his attorney’s fees from DCS, which are denied.  Tennessee Court of Appeals: “Despite our concern regarding ‘less-than-stellar’ investigation practices in this matter, we concur in the finding that there is not a preponderance of the evidence to suggest that DCS acted with a purpose to harm [Man]” or “to harass, cause unnecessary delay, or cause needless expense” to him, which is the standard for getting your attorney’s fees paid.  So we affirm.
  • Associate Professor at Austin Peay applies for promotion to full professor.  While his application is pending, he files an EEOC complaint against the university alleging age discrimination.  Afterward, Austin Peay denies him a full professorship based on the low quality of his scholarship.  Associate Professor then sues under the Tennessee Human Rights Act, alleging unlawful retaliation and that the denial was pretextual.  Tennessee Court of Appeals: Although Associate Professor maintains that re-reviewing the quality of his peer-reviewed scholarship violated university policy, “the plain language of [Austin Peay’s] promotion policies contemplates that a subjective assessment of scholarly work is appropriate.”  He also has no other evidence to support his claim of pretext.  Thus, Associate Professor’s theory of retaliatory intent fails.
  • At-fault driver in car accident receives three citations for violating city traffic laws.  More than one but less than two years later, Plaintiff sues the driver.  Tennessee Court of Appeals: A municipal traffic citation “does not trigger the two-year limitations period in Tennessee Code Annotated section 28-3-104(a)(2),” which is construed strictly and applies only to criminal charges.  Thus, the normal one-year statute of limitations applies, and the lawsuit is time-barred.  [Editorial note: This decision helps plaintiffs, even though it doesn’t help this plaintiff.  A contrary ruling would have triggered a criminal conduct exclusion included in a ton of insurance policies.]
  • On the eve of trial, divorcing parties announce a settlement and its terms in open court.  Afterward, Wife decides to repudiate the deal; nevertheless, the trial court enters a consent judgment based on the terms of the agreement announced to it.  Tennessee Court of Appeals: “[T]here is sufficient information in the record for us to conclude that the parties stated their agreement on the record in open court and detailed the terms of their agreement to the trial court prior to Wife’s revocation of consent,” which made the trial court’s entry of a consent judgment proper.  Thus, we affirm
  • Nashville Homeowner who lives in a district with a historic zoning overlay seeks to build a covered porch with an outdoor fireplace and masonry chimney.  After some litigation, an earlier contractor snitches, reports that Homeowner’s project includes an unpermitted porch that violates the historic zoning overlay.  Metro’s Zoning Administrator then initiates administrative proceedings that end with the Homeowner being ordered to remove the unpermitted porch following a de novo certiorari appeal.  Tennessee Court of Appeals: No due process problem here based on alleged untimely notice of the hearing before the Zoning Commission, since Homeowner got a de novo hearing in Chancery Court afterward.  And since “additions that wrap around a rear exterior corner to connect to a side addition” are forbidden by the stupid historic zoning overlay, Homeowner must remove the porch.
  • Creditor records judgment lien against Debtor’s property.  Years later, Debtor’s property is sold in a tax sale.  Afterward, controversy ensues over whether the Creditor or the Debtor’s heirs have priority over the excess proceeds.  Tennessee Court of Appeals: “a lienholder who can ‘establish[] its claim to the proceeds’ by showing that it had a ‘claim against the property’ ‘at the time of the tax sale’ enjoys second priority—after the taxing entity—to claim disbursement of excess proceeds,” so the Creditor has priority here.
  • Pro se litigant files accelerated interlocutory appeal of a trial court’s order denying a motion to recuse.  Tennessee Court of Appeals: Alas, the appeal was filed after the strict twenty-one day deadline expired (among other failures), so the appeal is dismissed.
  • Tennessee Court of Appeals: Attorneys can screw up Rule 10(B) appeals as well, so this one (in which none of the required documents was filed) is dismissed, too.

Firm Updates

Congratulations to Horwitz Law, PLLC client Daylan Langford!  Last year, after receiving horrendous service from a no-good, very-bad mechanic, Mr. Langford exercised his sacred right as an American to dress up as a chicken and protest for three days on the sidewalk outside his mechanic’s shop (after which he was promptly sued).  But because the First Amendment protects peaceful protesting, and because Tennessee has an anti-SLAPP statute, the case is dismissed, and his mechanic will be paying for the privilege.  Read all about it: https://www.tennessean.com/story/news/2024/12/11/smyrna-tennessee-chicken-mask-protest-lawsuit/76896930007/

And congratulations to Horwitz Law, PLLC client Benjamin Douglas!  Based on the first case summarized above, Mr. Douglas will now have a renewed chance at securing a transfer to a prison facility where he isn’t in imminent danger.  He also becomes one of the first people ever to beat the TDOC—even at an interim stage—in a case of this nature, and he made some good law in the process.