February 2–8, 2026
Intermediate Scrutiny—a Tennessee Court of Appeals blog—is a snappy weekly newsletter from Tennessee appellate attorney Daniel A. Horwitz summarizing the week’s decisions from the Tennessee Court of Appeals. To subscribe, click here. Past newsletters can be found here.
- Grandmother dies, and Mother (who is 81) inherits $57,855.72 from her. For reasons that the Parties dispute, Mother then deposits her inheritance into an account held by Daughter and Daughter’s Boyfriend. A dispute over the money ensues roughly a year later following a physical altercation between Mother and Daughter. At that time, Mother demands that the money be returned, but Daughter and Boyfriend (who claim both that Mother gave it to them as a gift and that Mother deposited the money into their account to evade Medicaid income restrictions) have already spent it. Mother then sues for elder abuse and misappropriation, and although the trial court finds misappropriation and awards Mother a judgment, it limits Mother’s recovery based on a sua sponte-raised unclean hands defense while making sparse findings on the other matters in controversy. Afterward, Mother appeals. Tennessee Court of Appeals: Reversed in part and otherwise vacated. Trial courts can’t just raise affirmative defenses sua sponte—they need to be pleaded by a defendant—and since that didn’t happen here, the trial court’s unclean hands finding and everything related to it is reversed entirely. On everything else, we remand for further findings, because the trial court’s order is insufficient to enable appellate review, and several of the trial court’s findings (e.g., finding misappropriation of Mother’s money but no elder abuse) are contradictory.
- School Shooter murders multiple children and staff at The Covenant School before being killed in the resulting police response. School Shooter’s writings are then collected by police as part of the investigation. News Organizations and Others file public records requests seeking access to School Shooter’s writings; afterward, the families of the victims intervene seeking (alongside Metro Nashville) to prevent public access. Following convoluted, bizarre, and extremely delayed trial court proceedings (in which your Summarist played a limited role unrelated to the merits of the underlying public records claims), way-out-of-her-depth trial court judge blocks all access to the records on three grounds: (1) a pending criminal investigation, (2) a school safety exception, and (3) a finding that federal copyright law preempts the Tennessee Public Records Act and that the School Shooter had copyright ownership over the writings at issue (the rights to which were later transferred to the victims’ families). Afterward, some of the News Organizations appeal. Tennessee Court of Appeals: Reversed and remanded. For one thing, all agree by this point that there’s no criminal investigation (because, among other reasons, the Shooter can’t be prosecuted on account of being dead), so any dispute over that is moot. For a second, “we are asked to accept at face value the trial court’s finding that every single item compiled or created by the shooter, for many years before the event at issue, relates to the Covenant School’s security[,]” but “[t]his conclusion strains credulity.” For a third, even “assuming for purposes of argument that the material exempted by the trial court qualifies for copyright protection, those protections do not necessarily conflict” with the Tennessee Public Records Act; the trial court erroneously “conflate[d] the concept of access for inspection with reproduction and display.” Thus, we reverse and remand for appropriate findings about what records actually fall within the limited school safety exemption. Because she needs the help, we also include a bolded reminder to the trial court judge that “[n]o record in Metro’s file should be deemed exempt ‘simply because it contains some exempt information’” and that this whole process needs to happen “as expeditiously as possible” because a delay of almost three years in a public records cases is inappropriate. [Editorial note: There is some potentially problematic language in the Court of Appeals’ opinion about a victim’s rights exemption claim that might affect future cases where a crime victim seeks to protect certain information from public disclosure after a District Attorney refuses to prosecute or the prosecution ends. Some background related to that concern appears in your Summarist’s 2017 TBA article here.]
- Plaintiffs sue Defendants in separate cases related to landslide damage. After nearly two-year delay and a disputed settlement, one Defendant moves to dismiss for failure to prosecute. The trial court grants the motion and awards attorney’s fees, and Plaintiffs appeal. Tennessee Court of Appeals: “We have previously affirmed the dismissal of cases for failure to prosecute when they have languished for similar, or even shorter, times than the case at hand[,]” so “[i]n light of the record before us, we discern no abuse of discretion in the court’s dismissal of the case for failure to prosecute.” The trial court’s attorney’s fee award is vacated, though: The trial court “did not cite any statutory, contractual, or other recognized exception to the American Rule supporting this decision[,]” “[n]or is it apparent from the motion to dismiss referenced by the trial court what the basis of the award of attorney’s fees is predicated upon in the present case.”
- Messy and complicated dispute over the sale of real property spills into court. Rather than recount the underlying details, your Summarist will just quote footnote 1 of the Court of Appeals’ opinion: “The confusing contours of this case, reminiscent of the recursive stairwell in M.C. Escher’s ‘Relativity,’ inspired the trial court to observe, ‘Look, this is not the way I want to finish my judicial career at all.’” The trial court compounds the messiness by doing multiple procedurally improper things—including setting aside a Rule 54.02 certification two years after the fact—that later become an issue on appeal. Tennessee Court of Appeals: “[W]hile a trial court may err in its determination to certify a judgment as final under Rule 54.02, such an erroneous determination must be challenged via appeal or a timely motion for reconsideration.” And “Rule 60.02 ‘is not for the purpose of relieving a party from free, calculated, and deliberate choices the party has made’”—in other words, “the choice to [forgo] an appeal may preclude Rule 60 relief”—so Rule 60 was not a valid basis for setting aside the dismissal two years later, either. Further, “[t]he portion of the trial court’s order valuing damages at $12,211,075 is vacated” because: (1) the trial court made a preemptive contempt damages determination against a party that it reinstated in error and (2) the amount preemptively awarded is not an accurate reflection of the damages suffered by the potential contempt plaintiff involved.
- Father is (maybe?) held in civil contempt for failure to pay Mother child support. Tennessee Court of Appeals, in decision that is most notable for being double-spaced (something your Summarist cannot recall seeing): “Because it is unclear from the trial court’s order whether Father was held in civil contempt, we cannot adequately address this issue. Accordingly, we vacate the trial court’s order concerning civil contempt and remand this issue for further written findings and conclusions by the trial court.”
Firm Updates
New Rule 11 Application! When it comes to complying with Tennessee’s parental visitation obligations, can parents parent their kids entirely remotely? Put another way: Do parents “visit” their children by calling them? Some say yes, some say no—and the better answer is no, so on behalf of a pair of clients, we’ve asked the Tennessee Supreme Court to settle the dispute. Read the application here: https://horwitz.law/wp-
