February 3–February 9, 2024

  • Mother and Father are divorced.  Mother—who is the primary caregiver of the ex-couple’s Children—seeks to relocate with Children more than fifty miles from her current residence, leading to dueling petitions for relief.  Tennessee Court of Appeals: All factors favor allowing Mother to relocate, and multiple waiver rules (including the “Judges are not like pigs, hunting for truffles” doctrine) require us to affirm the trial court’s ruling to that effect.  Mother doesn’t get her attorney’s fees on appeal because she forgot to cite the statute that supports the award, however (though we will mention the statute in a footnote ourselves just to show her how easily she could have).
  • Timeshare Cancellation Company pretextually fires Employee after she asks for her unpaid commissions.  Jury awards Employee a few hundred thousand dollars and a massive ($7.5 million) punitive damages award, which the trial court reduces to $559,500.00.  Unhappy with its comeuppance, Company appeals.  Tennessee Court of Appeals: Remember that old joke about the attorney who calls the client after the verdict comes in to report that “justice was served,” followed by the client instructing the attorney to “appeal immediately”?  It applies here, and Employee gets to keep every penny.  [Editorial note/pro tip: When you get kyboshed at trial, file the trial transcript if you’re going to appeal.]
  • Brother sues Sister to enforce handwritten contract purporting to reflect agreement about how to distribute certain property following their parents’ death.  Case proceeds to trial “[f]or whatever reason.”   Trial Court: There was no meeting of the minds here due to a mutual mistake of fact regarding who owned the property to begin with, so the contract is unenforceable.  Tennessee Court of Appeals: Because Brother neglected to follow the pro tip above and didn’t file either a transcript or a Rule 24 statement, “we are simply unable to determine where the preponderance of the evidence lies” and must affirm the trial court’s fact-based mutual mistake ruling due to the inadequate appellate record.
  • Divorcing parents fight over parenting time and child support.  Mother wants to move to North Carolina with Child, which Father (who has substance abuse and other issues) opposes.  Tennessee Court of Appeals: The trial court did not abuse its discretion in awarding Mother primary custody and letting her move.  “We have previously held that equal time parenting plans like the one proposed by Father are inherently unworkable in cases like the one before us where parents have demonstrated an inability to cooperate with one another,” and Father’s drug use and actions “detrimentally affect[ing] the financial situation for Mother and the Child” don’t help his case.  Mother gets her attorney’s fees on appeal, too, but we aren’t considering Father’s indictment for tax fraud as a post-judgment fact under Rule 14 in making any of these determinations.
  • Ex-Husband seeks criminal contempt against Ex-Wife for scheduling and attending “non-emergency medical appointments” for Child without Father’s consent in violation of the terms of their parenting plan.  Mother is convicted at a criminal contempt bench trial and ordered to spend seven days in jail for her three convictions.  Tennessee Court of Appeals: Because Mother conceded all the elements of contempt, incriminated herself when she testified, and has offered arguments on appeal that “lack[] sufficient evidentiary support,” we affirm.  The trial court’s separate modification of the parties’ parenting plan is vacated for lack of subject-matter jurisdiction because neither party petitioned to modify it or moved for relief from the judgment, though.  [Editorial note: For the love of God, please refer your client’s criminal contempt charges—and their later appeal of any resulting convictions—to a criminal defense lawyer if you lack adequate criminal experience.  At minimum, plagiarize some of our good criminal contempt briefing, like this, or this.]
  • Mother and Stepfather petition to terminate the parental rights of Father and to allow Stepfather to adopt Child.  Tennessee Court of Appeals: Father admitted that he had not visited his child for almost four years, and since his defense about willfulness is an affirmative defense that he didn’t plead, we affirm the decision to terminate Father’s rights under Tenn. Code Ann. § 36-1-102(1)(E), governing “the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.”  The evidence also supports the trial court’s judgment that termination of Father’s parental rights is in Child’s best interest.
  • Tennessee Court of Appeals, in otherwise uninteresting dispute over a construction contract that produces a non-citable opinion: “We have observed that the definition of ‘waiver’ as ‘a voluntary relinquishment by a party of a known right’ is ‘oversimplified’ and somewhat ‘misleading.’  ‘In reality, many, if not most waivers are unintentional and frequently do not involve a ‘right’ that the party is aware of.’”
  • County passes resolution prohibiting quarries and rock crushers within 5,000 feet of a bunch of residential stuff.  Quarry that is operating in contravention of said resolution seeks declaratory relief, arguing that the resolution is an impermissible zoning regulation and is otherwise preempted by a state law that regulates air pollution.  Tennessee Court of Appeals: The challenged resolution “regulates the use of land—but it is not an exercise of the County’s zoning power,” so it “is not tantamount to a zoning regulation.”  It also is not preempted by state law, which does not address “blasting, drilling and heavy industrial traffic.”  So the quarry gets crushed.
  • Two women enter into a joint venture promoting the empowerment of women.  Woman A: I loaned $26,000.00 to Woman B to support the venture before it failed, which she never paid me back.  Woman B: What are you even talking about?  This never happened.  Trial Court: It definitely did.  Tennessee Court of Appeals: In addition to Woman A’s testimony that there was an oral agreement on the matter, Woman B’s email stating: “My intent is to return your $26K” and “I also already said to you that I would pay you back” makes this case pretty easy.  There’s no statute-of-frauds problem with the oral agreement, either, since this was an agreement between two individuals.

Firm Highlights

A victory for Horwitz Law, PLLC client Frederick Braxton!  Back in 2022, prison officials refused to allow Mr. Braxton’s lawyers to observe his disciplinary hearing, even though TDOC policy expressly states that attorneys “may be permitted to be present as observers.”  Chancery Court of Lauderdale County, on certiorari review: “The record reflects a blatant and intentional deviation from the Uniform Disciplinary Procedures on the part of” the Tennessee Department of Correction with no explanation for the TDOC’s behavior, and “this arbitrary decision cannot be overlooked.”  “Accordingly, it is ordered, adjudged and decreed that the finding of guilt . . . is vacated and the imposition of sanctions is set aside[.]”  Further, since the time to appeal has now expired, Mr. Braxton prevails, and the ruling should prevent similar TDOC shenanigans going forward.