January 5–12, 2024

• Ex-client who “murdered his wife in the marital residence on October 19, 2018” and is now serving “life in prison plus twelve years” sues TikTok-famous law firm that represented him in defense of his (then-living) wife’s divorce and order of protection claims.  Ex-client’s “handwritten and generally difficult to discern” lawsuit asserts various complaints about his earlier representation and “requests twenty million dollars in damages.”  Tennessee Court of Appeals: Under Tenn. Code Ann. § 28-3-104(c)(1), claims against attorneys for malpractice have to be filed within one year “whether the action or suit is grounded or based in contract or tort.”  And based on ex-client’s wild theory of liability (that his former attorneys should have sought exclusive possession of the marital home, and “that he would not have murdered his wife on October 19, 2018, if he had been awarded exclusive possession of the marital home”), this lawsuit is barred by the applicable statute of limitations “even under the most liberal interpretation of Appellant’s claims that is possible under the circumstances[.]”  (DAH)
• Town helps organize a revival festival.  Its responsibilities include developing a traffic-control plan and closing certain segments of the streets for pedestrian-only use.  Town nevertheless allows a nonagenarian to drive his car “through the barricades at a speed of at least 45 miles per hour” for “over 1,000 feet” before killing two people standing in the pedestrian-only area.  The estates of the people the Town got killed sue the Town for negligence.  Tennessee Court of Appeals: Based on the Tennessee Supreme Court’s recent ruling that municipalities can negligently kill people and virtually never have to pay for it, we hold that a made-up, textually unsupportable thing called the “public duty doctrine” means that you all can pay those funeral bills yourself.  Adding our own spin (because the law here is not yet bad enough), we also hold—based on super shaky reasoning that calls essentially all supervision-based negligence claims into doubt—that Tennessee municipalities cannot be held liable “for the alleged negligence of another legal entity,” either. [Editorial note: It was a good week for negligent Tennessee government officials, as a (blessedly split) decision out of the Sixth Circuit botched an important governmental negligence case, too.]  (DAH)
• Radio station operators enter into future sales agreement with purchaser.  Radio station operators then get sued after they stop making payments, and a money judgment is entered against them.  Tennessee Court of Appeals: And because the operators filed serial post-judgment motions on the same grounds, their final such motion was “a nullity,” and they missed their appeal deadline as a result. (DAH)
• Woman purchases title to several parcels of land and finances the sale.  After she stops making payments, she sues the bank that she borrowed from, alleging that her loan “should be rescinded, nullified, or modified ‘on the grounds of mutual mistake.’”  Her Bank counter-sues seeking its money.  After the trial court rules for the Bank, Woman appeals.  Tennessee Court of Appeals: Given that the only issue you have raised on appeal is whether the trial court properly denied your motion for a continuance—and given that this case (which you initiated) “had been pending for eleven years” when your motion was denied—the Bank gets its money.  (DAH)
• Pro se appellant: The trial court did me wrong.  Tennessee Court of Appeals: Whether that’s true or not, you blew your appeal deadline by filing successive Rule 59 motions after losing below, so your appeal is dismissed for lack of jurisdiction. (DAH)
• Easement holders: We have easements that “do not specifically define, limit, or restrict [our] use of the roadways,” so we should be able to use them for commercial logging.  Tennessee Court of Appeals: The easements were created to provide you with ingress and egress to your property, and use of the easements for commercial logging is not “reasonably necessary and convenient for” ingress and egress, so you lose.  Also, because you have filed a declaratory judgment claim (rather than being sued for a nuisance claim), Tennessee’s Right to Farm Act doesn’t apply here. (DAH)
• Two sets of Grandparents file competing claims for adoption, termination of parental rights, and grandparent visitation.  Tennessee Court of Appeals: Everybody has standing to pursue their claims here, so we remand for further consideration of the claims.  (DAH)
• Man loses lawsuit against his insurer, then appeals.  While the appeal is pending, he files a second lawsuit against the same insurer that “included substantially the same allegations as the first.”  Man: Seems legit, no?  Davidson County Circuit Court: No.  Tennessee Court of Appeals: No, but you lose based on the prior suit pending doctrine, rather than the res judicata doctrine (since the first lawsuit was still pending appeal at the time). (DAH)
• Husband and Wife divorce.  Husband: I should get to keep a home that I have titled in my name alone, it’s separate property.  Tennessee Court of Appeals: “Even though the property was titled separately,” “[t]he parties treated the [] property as marital property and maintained it with marital funds,” so Wife gets half.  Based on our ticky-tacky technical jurisprudence, though (which the Tennessee Supreme Court may soon blow up), she doesn’t get her appellate attorney’s fees here, since “[w]e must deem the request waived as Wife failed to include it in her statement of issues.” (DAH)
• Mother: My child’s Father keeps committing domestic abuse against women he dates, so his co-parenting time should be restricted and he should not get overnight visitation.  Trial court: Agreed.  Tennessee Court of Appeals: And that was fine, even though Father has not been convicted yet. (DAH)
• Juvenile Court Magistrate: Due to your “limited mental capacity” and “cosleeping” arrangement (wherein a young child sleeps with her parents “on a queen-sized air mattress”), I am going to award DCS temporary legal custody over your kid.  Shelby County Circuit Court, at first stage of appeal: “Mother is not here to go forward, per her attorney” (who had just told the court that Mother “is en route” to court after reporting that she was “at the hospital with another child”), so this appeal is dismissed, and DCS gets to keep your kid.  Tennessee Court of Appeals: And that was fine, in part because “[t]here is nothing in the record, however, to indicate that Mother ever arrived to court – late or otherwise – on the day her appeal was set to be heard by the Circuit Court.”  [Editorial note: It is shockingly easy for the State of Tennessee to take poor people’s kids.]  (DAH)
• Shelby County Mayor and his wife file competing divorce petitions.  Six months after a Shelby County Chancellor accepts the case assignment, she rules unfavorably to the Mayor.  The Mayor then moves to recuse the offending Chancellor, arguing that the Mayor’s authority over the court’s budget gives rise to a potential conflict of interest or its appearance (which is definitely true).  Tennessee Court of Appeals: Regardless of any other matter, because “Mayor Harris’s delay in raising the issue is fatal to his cause,” his appeal is denied. (DAH)
• Serial litigant and his oft-sanctioned lawyer lose case on August 29, 2023.  Math being hard, they file their notice of appeal thirty-one days later on September 29, 2023.  Tennessee Court of Appeals: The thirty-day appeal deadline having expired—and given that serial litigant has “candidly admitted that ‘this Court has no discretion, and appellant has no defense’”—this appeal is dismissed for lack of subject matter jurisdiction. (DAH)
• Following complex and arduous divorce proceedings involving eight-figure estate, trial court assigns roughly $12 million of the marital estate to Wife and $10 million to Husband.  Husband: Gimme more.  Tennessee Court of Appeals: Given that you have waived multiple claims that you value at millions of dollars, dissipated a huge volume of marital assets, were not credible, and have a much greater ability to acquire future assets (in part because Wife stayed home with the kids while you got professional degrees), we affirm basically everything.  Based on our ticky-tacky technical jurisprudence, though, we find that Wife waived any claim for appellate attorney’s fees, so you don’t have to shell out any more than that. (DAH)
• Davidson and Shelby County Parents and Taxpayers sue to invalidate Tennessee’s Voucher Law, arguing that the county-specific program violates the Tennessee Constitution and state law and causes unique local harm by diverting taxpayer funds that were appropriated for public schools.  Two-thirds of the Chancery Super Court (Davidson County Chancellor Anne Martin excepted): You all lack standing to sue over that.  Three-thirds of the Tennessee Court of Appeals:  Close!  In fact, they all have standing to sue over that, courts being obligated to take well-pleaded facts as true and to avoid confusing standing issues with merits issues.  (DAH)
• Grandparents who have been Child’s sole meaningful caregivers through Child’s entire life petition for permanent custody of Child and to terminate the parental rights of Mother, who has several serious issues, has failed to support child financially, and has either failed to exercise her visitation rights or upset Child during them.  Trial Court: Mother has failed to manifest a willingness to assume custody of Child; placing Child in mother’s custody would place Child at risk of harm; and termination of Mother’s parental rights is in the Child’s best interest, as she is little more than a stranger to Child for practical purposes.  Tennessee Court of Appeals: Affirmed. (DAH)

Firm Highlights

A victory for Horwitz Law, PLLC client Kimberly Jones-Mbuyi!  A few years ago, Ms. Jones-Mbuyi suffered an unimaginable tragedy: She saw her daughter murdered in front of her just “ten minutes” after Metro Police abandoned them after botching a response to an order of protection call (one of the responding officers was later suspended for mishandling the case).  Following over a year of litigation that involved Metro resisting policy changes, Metro has since agreed to implement policy changes and to pay Ms. Jones-Mbuyi $250,000.00 for her daughter’s wrongful death: https://horwitz.law/wp-content/uploads/Jones-Mbuyi-Settlement-Agreement.pdf.  The settlement will come before the Metro Council for approval on February 6, 2024.