January 25–February 21, 2025

• Plaintiff sues his Former Attorney for legal malpractice.  In response to Former Attorney’s motion for summary judgment (which had been delayed and continued already), Plaintiff’s Current Attorney commits much clearer legal malpractice, fails to timely respond to Former Attorney’s motion for summary judgment.  The failure results in Plaintiff’s response being stricken entirely, thus causing him to lose the case automatically.  Plaintiff appeals.  Tennessee Court of Appeals: “‘Lawyers who wait until the last minute to comply with a deadline are playing with fire,’” and litigants are not entitled to relief from important deadlines based on attorney negligence.  And because the trial court was within its discretion to strike the untimely response, its dismissal is affirmed.
• Plaintiff files a legal malpractice claim arising out of a criminal case (which knowledgeable readers know is effectively impossible in Tennessee based on a poorly reasoned Tennessee Supreme Court opinion from 2001).  Tennessee Court of Appeals: The Plaintiff doesn’t lose because of that opinion, though.  Instead, he loses on statute of limitations grounds based on a different poorly reasoned Tennessee Supreme Court opinion that holds that legal malpractice claims generally accrue from the date of a final trial court order resulting from the malpractice, even if the lawyer continues on with the representation and even if an appeal is taken.  He’d have lost with tolling anyway, though, given that he was not exonerated and “waited almost eighteen months after he lost his appeal” before filing suit.
• Ex-Husband, for himself and his children, petitions for an order of protection against his Ex-Wife’s Paramour.  After hearing, Ex-Husband’s petition is denied by the General Sessions Court and is denied again on a de novo Circuit Court appeal.  The Circuit Court also awards fees to Paramour on the basis that Ex-Husband “made knowingly false allegations at the time of filing his order of protection petition.”  Tennessee Court of Appeals: Ex-Husband’s appellate arguments are waived, and “[t]he record provides clear and convincing evidence that [Ex-Husband] knew the stalking allegations against [Paramour] as to the children were false at the time he filed the petition seeking a protective order against Mr. Roach as to the children.”  Thus, the trial court’s judgment is affirmed.  Paramour doesn’t get his attorney’s fees on appeal because he has not adequately developed an argument on the matter, though.  [Editorial note: The winning, unraised argument is that “[a] party that properly recovers fees in the trial court need not show that an appeal is independently meritless: the rationale supporting fees in the trial court carries over and supports the defense of the award on appeal.”  See Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 161 (Tenn. 2021).]
• Woman shops at Costco, gets hit (in 2012!) with a shopping cart pulled by a Costco employee.  Woman then sues for negligence.  Three trials and (ten!) years later, Costco wins a directed verdict on the basis that Woman failed to prove that her injuries causally related to the shopping cart incident.  Woman appeals pro se.  Tennessee Court of Appeals: All issues are waived due to briefing deficiencies.
• Former Candidate for public office seeks order of protection against Citizen who (allegedly “aggressive[ly]”) opposed her candidacy.  Citizen petitions to dismiss the order of protection under the Tennessee Public Participation Act.  The General Sessions Court denies both the Citizen’s TPPA petition and the Candidate’s petition for an order of protection.  Citizen then “appeal[s] the general sessions court’s decision on ‘attorney’s fees’ to circuit court,” which emphatically is not a thing.  After the Circuit Court denies the claim, Citizen appeals the Circuit Court’s ruling to the Tennessee Court of Appeals, which was the exclusive venue for an appeal of the denial of a TPPA petition after the General Sessions Court denied it.  Tennessee Court of Appeals: You, Citizen, have wasted our time and your own because you do not know what you are doing.  Here, “[g]iven the procedural posture of this appeal, our task is limited to reviewing the decision in circuit court,” which should have transferred Citizen’s appeal to us after Citizen erroneously filed it there.  So we remand for entry of a transfer order, and we will do a merits review of this case later.
• After a car wreck, Plaintiff is hurt, and the negligent driver’s insurer (Progressive) offers to pay some of Plaintiff’s medical bills.  Plaintiff accepts Progressive’s offer; Progressive then sends her a link where she can obtain $150 for reimbursement of her copay and allegedly emails her a release of claims to execute (which Plaintiff does not execute).  Afterward, Plaintiff files a lawsuit.  Progressive: Plaintiff accepted a settlement offer, so this lawsuit is barred.  Trial Court, based on a document that was never in the record and may not even be something the Plaintiff received: Yep.  Tennessee Court of Appeals: Absolutely not.  Plaintiff thought she was being offered help to pay her ongoing medical expenses; she never said she was releasing any claims.  Further, “[a]t best, the evidence demonstrates that Progressive attempted to unilaterally incorporate a release into the alleged agreement.”  That is not a meeting of the minds or an agreement to release anything, so summary judgment never should have been granted here, and the trial court’s judgment is reversed.
• Plaintiff files medical malpractice (“Health Care Liability Act”) case and timely discloses an expert witness.  Due to matters beyond the Plaintiff’s control, the Plaintiff runs into delays scheduling her expert’s deposition and timely moves the trial court to revise the scheduling order to enable an extension.  The trial court refuses; instead, it excludes the Plaintiff’s expert as a discovery sanction, effectively torpedoing the Plaintiff’s case because expert testimony is required to prevail.  Tennessee Court of Appeals: “The trial court made no specific findings as to how such delay would actually prejudice [the Defendants] or how much time they would need to prepare for trial.”  It also “made no finding that [Plaintiff’s] conduct was contumacious, intentional, blatant, or otherwise so egregious as to justify the harshest sanction available, i.e., exclusion of Appellant’s expert and dismissal of her lawsuit.”  “Perhaps the lack of a finding of contumacious conduct is because there was none. The record suggests that [Plaintiff’s] failure to schedule [her expert’s] deposition was due to legitimate scheduling issues and, in any case, was not sufficiently willful to rise to the level of contumacy.”  So the trial court’s order is reversed, the Plaintiff’s Complaint is reinstated, and the matter proceeds.  Even though he won, we also tax half-costs of the appeal to the Plaintiff for some reason (something your summarist thought only happened to him).
• Defendant personally guarantees a borrower’s loan, gets sued by Creditors after the borrower defaults.  Defendant then neglects to respond to Creditors’ requests for admission and also neglects to respond to Creditors’ motion for summary judgment (which the trial court grants).  Defendant then appeals.  Tennessee Court of Appeals: Defendant’s brief is deficient, his arguments here are waived, and his appeal (which “wholly failed to discuss the dispositive issue in this case, i.e., the grant of the motion for summary”) is frivolous.  Thus, the trial court’s judgment is affirmed, and Creditors get their appellate attorney’s fees.
• Tractor trailer breaks down, parks on the shoulder of I-40 for over seven hours.  Driver who is experiencing a bumblebee-related distraction crashes into it, killing his two passengers.  The passengers’ estates and their minor child sue the tractor trailer company (and the driver) for negligence.  Based on federal court authority purporting to apply Tennessee’s law proximate cause rule concerning standing vehicles, trial court dismisses the case.  Tennessee Court of Appeals: “With due respect to our federal brethren, their understanding of this court’s decision in Carney v. Goodman, upon which the trial court relied, is in error. . . .  Under the federal courts’ understanding of the Carney decision, any potential liability for the driver of the parked vehicle is washed away by this potential to see and potential to avoid the parked vehicle.  Respectfully, this simply is not what Carney provides for in its analysis. . . .  Carney is concerned with what the driver, though acting negligently, actually saw, not what potentially could have been seen if he or she was not acting negligently.”  And on this extremely limited ground alone—the trial court’s erroneous reliance on federal decisions that misapply the relevant standard—we remand for further proceedings.
• In civil forfeiture proceeding (which, under Tennessee law, begins in an administrative tribunal), petitioner’s counsel negligently fails to show for hearing, resulting in a default judgment being entered against him.  The petitioner unsuccessfully moves to set aside the default and then unsuccessfully appeals the matter in chancery court before appealing again.  Tennessee Court of Appeals: You will be shocked when opening this opinion to learn that it’s 28 pages.  But that’s because we are going to treat you to a very lengthy discussion about whether administrative law judges have to swear an oath of office commensurate with the oath taken by real judges (we conclude they do not).  The rest of this opinion is easy: Under an important decision called McEwen v. Tennessee Department of Safety, we review only whether the agency identified appropriate legal principles to guide its decision-making, whether substantial and material evidence supports the agency’s decision, and whether the agency correctly applied the law to the facts.  And because the administrative law judge’s decision to enter a default clears this low bar, it’s affirmed.
• State Employee is diagnosed with tongue cancer.  Blue Cross denies coverage for a certain treatment, concluding that the treatment was not medically necessary and “is considered investigational” under the circumstances.  Employee appeals the denial of coverage internally within Blue Cross and then files a complaint against the State of Tennessee (which holds the group employee welfare benefit plan under which the State Employee was insured) in the Claims Commission for breach of contract.  The Claims Commissioner rules for the State and, Employee appeals.  Tennessee Court of Appeals: “[T]he State has established that [Employee’s desired treatment] was not a covered expense under the plain, unambiguous terms of the Plan[,]” so the Claims Commissioner’s judgment is affirmed.
• Father is found guilty for 28 counts of contempt and ordered imprisoned for a maximum consecutive sentence of 280 days.  (Editorial note: usually a good sign that the trial court has erred somewhere.)  Tennessee Court of Appeals: All 28 convictions are reversed for lack of willfulness.  “Father in this case was faced with two court orders that were in direct conflict with one another,” “[t]hese orders were diametrically opposed, and compliance with both was an impossibility.”  Thus, because “[c]ontempt cannot hinge on an order that was impossible for the contemnor to obey,” all 28 convictions are vacated.  For some reason, however, we decide not to cite a Horwitz Law, PLLC client’s recent contempt reversal under extremely similar circumstances, even though two members of the panel are the same.  [You can read Horwitz Law, PLLC’s excellent criminal contempt defense whitepaper here.]
• Man and his daughters sue the Widow of Man’s son and some other family members seeking a declaration of their rights as the lawful owners of an LLC.  Because there is a much longer history here, though, the lawsuit is declared an Abusive Civil Action, it’s dismissed, and the Plaintiffs are ordered to pay fees and are “prohibited . . . from instituting any civil actions against Widow for a period of 48 months as well as continuing any civil action or claim against Widow that was instituted before the date of its final order.”  Man and his daughters appeal whether the Abusive Civil Action statute was appropriately applied and the fee amount ($510,429.89).  Tennessee Court of Appeals: No error in applying the Abusive Civil Action statute, which does not require romantically involved parties.  And in a welcome departure from some past Court of Appeals decisions about attorney’s fees that have, as your summarist has previously written, “assure[d] and incentivize[d] extensive satellite litigation over fee claims,” we apply regular abuse of discretion standards and affirm the reasonableness of the fee award under the circumstances presented, in which the Plaintiffs “did not file an objection to the sworn petition nor make any objection at the hearing.”  Widow gets her attorney’s fees on appeal, too.
• Business seeks a special use permit to operate a used car lot.  The Memphis City Council initially votes to remand the application to the Land Use Control Board; afterward, it reconsiders the application and denies it.  Business then unsuccessfully seeks certiorari review, alleging due process violations, fraud, and arbitrary action.  Tennessee Court of Appeals: No due process violation here, given that Business had transferred the property in question by the time of judicial review, and a five-year restriction on reapplying is insufficient to trigger due process protections.  [Editorial note: This seems an awful lot like a mootness question—whether the controversy became moot during the litigation process based on the post-application transfer—not a merits question, though mootness is unmentioned.]  No fraud or arbitrary action, either; the Council acted within, and according to, its published rules.
• Man who is dating Ex-Wife sends weird and quasi-sexual message to Ex-Wife and Ex-Husband’s child, allegedly inadvertently (he apologizes after being confronted).  Ex-Husband then petitions for an order of protection against Man on Ex-Husband’s own behalf and on behalf of his minor child.  Trial court enters an order of protection, and Man appeals.  Tennessee Court of Appeals: “[T]he evidence presented was insufficient to sustain a finding of stalking as alleged or a finding of domestic abuse as found by the trial court. We acknowledge that the message itself was very inappropriate; however, the record is devoid of evidence establishing that [Man] engaged in a willful course of conduct involving repeated or continued harassment of the Child.”  Thus, the order of protection is vacated.
• When plaintiffs file medical malpractice (“Health Care Liability Act”) claims in Tennessee, they have to file with their complaint (under penalty of dismissal with prejudice) a “certificate of good faith” that certifies that they have consulted with an expert who “[b]elieves, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to maintain the action[.]”  Here, Plaintiff files a medical malpractice claim based on Doctor’s alleged failure to properly diagnose and treat her then-living husband’s cancer, and Plaintiff properly appends a certificate of good faith.  Afterward, when her husband dies, Plaintiff files an amended complaint that alleges further (based on the same theory of liability) that Doctor’s asserted negligence caused her husband’s death.  Her amended complaint does not append a new certificate of good faith, however.  Does this omission require her amended complaint to be dismissed with prejudice?  Two-thirds of a Tennessee Court of Appeals panel: “We recognize this may seem like a harsh result,” and we aren’t happy about it, but yes: the law requires an expert to bless a plaintiff’s theory of injury, and death was a new and different injury.  More than that, Tennessee law holds that an amended complaint that is complete in and of itself “supersedes and destroys” the original complaint as a pleading, so compliance with the certificate good faith requirement was mandatory as to the amended complaint.  Judge Usman, dissenting: No; the statute requires that a plaintiff filed a certificate of good faith “with the complaint,” and Plaintiff did that.  [Editorial note: This statute regularly screws plaintiffs and promotes technical dismissals based on procedural traps, which some might say is its purpose.]
• Tennessee Court of Appeals: Speaking of screwing plaintiffs and promoting technical dismissals based on procedural traps, a trial court properly dismissed a Health Care Liability Act complaint based on some limiting language contained in a Plaintiff’s pre-suit HIPAA authorization form.  Thus, the technical dismissal is affirmed; no inquiry into the merits of the Plaintiff’s claim is required.
• Tennessee Court of Appeals: Same result for an HCLA plaintiff who, after first non-suiting, relied on the HCLA’s 120-day extension before refiling suit, only to learn afterward (based on a recent Tennessee Supreme Court decision) that the 120-day extension does not apply to the one-year deadline for refiling after a voluntary dismissal.
• Faulty inmate messaging system is implemented at a detention center; based on the system’s programming, “it is possible for a person to send a message to an inmate that appears to be from someone else if the sender knows the other person’s name and email or phone number.”  Using that faulty system, someone impersonates Plaintiff and gets her arrested twice for sending threatening messages; her charges are eventually dismissed.  Afterward, Plaintiff sues the company responsible for the messaging system for negligent and reckless infliction of emotional distress.  Applying Tennessee’s gravamen rule, trial court treats Plaintiff’s claim as a malicious prosecution claim and dismisses it on summary judgment.  Tennessee Court of Appeals: Affirmed; the claim was appropriately treated as a malicious prosecution claim, and the elements of a malicious prosecution claim were not established.
• Following lengthy delays, trial court proceeds to hearing (over Husband’s request for a continuance) on Wife’s claim for civil contempt against Husband and Relatives related to the terms of a divorce decree.  Trial court finds Husband and Relatives in civil contempt, and they appeal.  Tennessee Court of Appeals: Notwithstanding Husband’s asserted inability to secure counsel, no abuse of discretion in denying a continuance; Husband was not indigent, and he had ample time to obtain counsel.  The contempt finding was correct, too.  Further, because “[w]e have no doubt that this appeal was taken solely for delay,” Wife gets her attorney’s fees on appeal.
• Knox County Commission amends zoning for a particular property; NIMBY Neighborhood Association (which is concerned about density) files declaratory judgment action challenging the rezoning.  Tennessee Court of Appeals: The density recommendations that the Neighborhood Association is worked up about are “advisory and nonbinding,” so there is no basis for invalidating the rezoning.  [Editorial note:  Because this is a challenge to legislative rezoning, this is a declaratory judgment action, rather than a certiorari case, and the standard of review is rational basis.]
• Plaintiff, a locomotive engineer, sues train operator for injuries he sustained in a collision (he alleges insufficient training), loses on the basis that his claim is precluded by the Federal Railroad Safety Act.  Tennessee Court of Appeals: Because “[w]hen two statutes complement each other, it would show disregard for the congressional design to hold that Congress nonetheless intended one federal statute to preclude the operation of the other,” the Plaintiff’s Federal Employers Liability Act claim is not precluded by the Federal Railroad Safety Act.
• Pro se litigant seeks accelerated interlocutory appeal of order denying motion to recuse.  Tennessee Court of Appeals: And if you are in the know, then you know that there was nearly a 100% chance that the preceding sentence meant that this appeal would be dismissed summarily for failure to comply with Rule 10B’s strict requirements.
• After Plaintiff is shot by an officer, Plaintiff files an excessive force complaint under 42 U.S.C. § 1983.  Officers: Plaintiff appeared at the scene of a road rage investigation suddenly and without warning, approached us rapidly, and was armed with a rifle.  Trial Court: Qualified immunity; no clearly established decision placed the Officers on notice that they acted unreasonably here.  Tennessee Court of Appeals: Agreed.

Firm Updates

Congratulations to Horwitz Law, PLLC client Michael Barrett!  After Mr. Barrett was sued by his former employer (a charter jet company) for whistleblowing about safety requirements, Mr. Barrett petitioned to dismiss the SLAPP-suit under the Tennessee Public Participation Act.  And despite extensive delay and obstruction efforts, he has now prevailed, so the case is dismissed and he gets his attorney’s fees.