February 17–February 23, 2024

• Plaintiff sues Health Care Providers for medical malpractice (which Tennessee calls “health care liability” because medical malpractice sounds bad).  A major issue at trial was whether Health Care Providers failed to meet the standard of care by failing to administer epinephrine after Plaintiff had an anaphylactic reaction during labor.  The jury returns a verdict for the Health Care Providers.  Afterward, though, it comes out that one of the jurors—in extremely obvious violation of jury instructions not to investigate the case on their own—“shared with the other jurors that he had gone home over the weekend and looked at the warnings on Epipens” and that “the Epipen stated that caution should be used during pregnancy and that epinephrine should only be used when the potential benefit justified the potential risk to the fetus.”  Tennessee Court of Appeals: New trial.  “Plaintiff has successfully proven juror misconduct by a preponderance of the evidence,” and “there is a reasonable possibility that the extraneous information at issue altered the jury’s verdict.”  Further, by improperly applying a “clear and convincing evidence” standard, the trial court applied an incorrect legal standard and abused its discretion.
• Shelby County Employee is administratively terminated for “voluntary abandonment” of her job after she fails to report to work for three consecutive days.  Employee files a petition for certiorari challenging her termination 61 days later.   Trial Court: You lose because you missed the 60-day certiorari deadline to appeal and because you were administratively terminated, not punitively terminated.  Tennessee Court of Appeals: You lose because you missed the 60-day certiorari deadline to appeal, which poses a subject-matter jurisdiction defect.  Plus, you did not meaningfully defend against dismissal on that ground in the trial court and only skeletally address the problem up here, which results in waiver.  We also trace the lineage and meaning of the idiom “out of the frying pan and into the fire” from 1350 through 2005.
• Father and Stepfather petition to terminate Mother’s parental rights.  Tennessee Court of Appeals: Mother made no voluntary support payments during the relevant four-month period, given that an “income tax intercept”—which is a method of collecting past-due child support—does not qualify as a voluntary payment.  Further, because (among other contrary evidence) Mother clearly had taxable income, her defense of lack of willfulness on the basis that she had no income fails.  Thus, abandonment was proven, and “the combined weight of” the evidentiary record “proved by clear and convincing evidence that termination of Mother’s parental rights is in the best interest of” Child, so Mother’s parental rights are terminated.
• Neighbor 1 seeks and obtains a variance “to construct a non-attached garage.”  Neighbors 2 and 3 (who clearly hate Neighbor 1) oppose it.  Tennessee Court of Appeals, fifteen pages later: We shut the door on Neighbor 1’s variance and reverse the Town of Louisville Board of Zoning Appeals!  Neighbor 1 isn’t allowed to take an inconsistent position on appeal about whether a variance was required, and there is no evidence of a “peculiar physical characteristic of the subject land” as required to grant a variance here.
• Tennessee Court of Appeals: “[P]arents’ failures to adequately address their drug use, to visit [Child], and to be involved in the court proceedings evince a lack of willingness to assume custody of the child[,]” and for that reason and others, their parental rights are terminated.
• Litigants appeal order denying their motion to quash a subpoena issued to Bank that sought Litigants’ financial records.  Tennessee Court of Appeals: But since there is still stuff left for the trial court to do below, the judgment is not final.  As a result, we lack jurisdiction to consider this appeal.
• Pro se Appellant appeals trial court’s entry of an order of protection against him.  Tennessee Court of Appeals: But “his brief and reply brief fail to comply with the most fundamental of appellate rules of practice”—he does not argue matters that he raised as issues, and he includes no citations to the record, among other defects—so the appeal is dismissed.
• Neighbor 1 sells 70 acres of land to Neighbor 2.  Neighbor 1 later sues Neighbor 2 for an easement by necessity, asserting that Neighbor 1’s property is now landlocked.  Tennessee Court of Appeals: Some recent amendments to Tenn. Code Ann § 54-14-102 and its associated statutes did not change the common law regarding easements by necessity.  However, the trial court was not permitted to conduct a site visit and use it as evidence, and for that and other reasons, the trial court’s order is vacated for new proceedings.
• Tennessee Court of Appeals: Child’s exposure to illegal drugs, plus being dependent and neglected, means Father’s parental rights are terminated.
• Medical malpractice plaintiffs attempt to comply with the Health Care Liability Act’s pre-suit notice requirements, which are designed to be trap for the unwary and basically serve no other purpose than screwing plaintiffs for reasons unrelated to the merits of their claims.  One problem: The HIPAA authorization they include states that one Plaintiff’s birth year is 1971, when, in fact, she was born in 1977.  Tennessee Court of Appeals: “Inasmuch as Defendants could identify [Plaintiff] from the authorization notwithstanding the birth year, and they admit the information need not be included in the authorization at all, we disagree that [Plaintiff]’s birth year is ‘material information’ under the circumstances” and reverse the trial court’s order dismissing the case.
• Appellant’s counsel: You should recuse, judge, since you filed a BPR complaint against me an in unrelated matter and set a trial date without consideration for my schedule.  Trial Court: No.  Tennessee Court of Appeals: No need to recuse—“the mere filing of a complaint is not a basis for recusal”—and “the record refutes the factual underpinnings of” the trial-setting claim.
• Mother dies.  Her Son sues several Siblings and Mother’s Bank for breach of contract after Son was removed from Mother’s joint savings and checking accounts.  Tennessee Court of Appeals: “There is no provision in any of the agreements requiring the Bank to do what Mr. Haire claims the Bank failed to do,” so summary judgment was appropriate.
• Tennessee Court of Appeals: Because clear and convincing evidence proves that Mother is mentally incompetent, her parental rights are terminated.
• Tennessee Court of Appeals, fifteen pages of a mostly-unreadable, block-quote-heavy opinion later: Because trusts are a squishy concept and “there are no bright-line legal requirements necessary to establish them,” the trial court’s decision not to impose a trust on two properties after a trial is affirmed.
• General Contractor sues Businesses and their Owner for breach of contract.  Businesses and their Owner repeatedly violate pre-trial orders, have multiple attorneys withdraw from representing them, and miss important case deadlines, eventually resulting in case-ending sanctions, a $696,000.00 judgment, and the corporate veil being pierced.  Tennessee Court of Appeals: No problems with the Court’s order, and although “local rules of practice that conflict with the Tennessee Rules of Civil Procedure are invalid[,]” “[t]he absence of a similar rule in the Tennessee Rules of Civil Procedure does not create a conflict.”

Firm Highlights

In 2019, Tennessee enacted the Tennessee Public Participation Act: Tennessee’s first-ever meaningful anti-SLAPP statute.  The TPPA’s value and speech-protective benefits cannot be overstated.  The TPPA has successfully deterred a vast number of bogus lawsuits and protected the free speech rights of all manner of speakers, including government-petitioners, critics of candidates for public office, domestic violence victims, Yelp! reviewers, political commentators, and many others.  It has also allowed many speakers to recover their legal expenses after being baselessly sued for protected speech. 

At least, the TPPA used to provide these benefits.  Last year, a Tennessee Court of Appeals panel largely destroyed the utility of the TPPA overnight by holding that plaintiffs can evade the TPPA’s mandatory consequences as a matter of right and get away without penalty by filing SLAPP-suits, maximizing litigation expenses, and then nonsuiting right before a trial court adjudicates a TPPA petition: exactly the sort of abuse the TPPA was designed to prevent.  Many plaintiffs have taken note, often nonsuiting literally minutes before hearing and then laughing on the way out of the courtroom after spending the preceding months running up a speaker’s legal expenses.  So this week, our team went to the Tennessee Supreme Court to overturn that no-good, very-bad, textually unsupportable ruling.  You can watch the oral argument (before an unfortunately skeptical court that did not appear to understand how the TPPA functions or why it works) here: https://www.youtube.com/watch?v=Mkc4P53jxiI&t=3s