A snappy weekly newsletter from the lawyers at Horwitz Law, PLLC summarizing the week’s decisions from the Tennessee Court of Appeals.

June 22–July 12, 2024

  • Pro Se Appellant, in public records appeal arising out of Shelby County: One Shelby County judge was “dishonest, arrogant, and ignorant,” showed “a broad contempt for the law,” and was “unfit[] to have ever sat on the bench.”  Another Shelby County judge was “sloppy, . . . arrogant and dishonest,” “does not know the law,” is “not competent enough in the law to check [] citations,” and engaged in “oath-defying conduct.”  A third Shelby County judge engaged in “gross misconduct” and “obstruction of justice.”  And the “childishly malicious” Shelby County prosecutors and certain Court of Appeals judges (who engage in “deficient” legal reasoning, practice “a mendacity [that is] pervasive and systematic,” and “pretend to follow the law all the while ignoring it”) can get it, too.  Tennessee Court of Appeals: Tennessee Court of Appeals Rule 9 says that any brief “containing language showing disrespect or contempt for any court of Tennessee will be stricken from the files[.]”  And since your brief hurt our feelings by “showing blatant disrespect and contempt for numerous Tennessee courts and various members of the judiciary,” we strike it and refuse to adjudicate your appeal based on Rule 9’s constitutionally dubious, viewpoint-based speech restriction.  [Editorial note: For what it’s worth, your summarist does not have quite as high an opinion of Shelby County’s justice system as Pro Se Appellant does.  He’s not sure that making it illegal to disrespect judges is a great way to promote respect for the judiciary, either.]
  • Disbarred Attorney with lengthy litigation history against his child’s Mother once again sues his child’s Mother and her attorneys.  Mother presses statutory claim that Attorney’s lawsuit is an abusive civil action, and Attorney nonsuits.  Tennessee Court of Appeals: You can’t circumvent the abusive civil action statute by nonsuiting.  Additionally, since the parties had a relationship and Mother “presented sufficient evidence that [Attorney] filed the action primarily to harass or maliciously injure her and that his claims were unwarranted by existing law,” the trial court’s finding that Attorney’s lawsuit was abusive stands.  The abusive civil action statute is also constitutionally sound, notwithstanding Attorney’s contrary arguments.
  • Petitioner is granted a one-year order of protection against Respondent based on claims that Respondent “abused/threatened to abuse” her.  When the one year is up, Petitioner seeks to extend the order of protection by 10 years.  The trial court then holds a hearing that “took about 6 minutes or less” during which Respondent: (1) was not given an opportunity to cross-examine Petitioner, (2) was not permitted to testify without interruption; and (3) had her testimony interrupted by the trial court’s summary announcement stating “I’m done” and extending the order of protection for five years.  Tennessee Court of Appeals: The trial court’s kangaroo hearing violated elementary due process guarantees, so the trial court’s ruling is vacated.
  • After establishing his paternity over Child based on DNA test, Father petitions to change Child’s last name from Mother’s last name to Father’s last name.  Trial court, dubiously: Granted.  Child’s paternal grandmother was the CEO of the local Chamber of Commerce, so “Child could only stand to benefit from the last name of the Father.”  Tennessee Court of Appeals: “Unless both parents request otherwise, the surname on the birth certificate of a nonmarital child is that of his or her mother,” and Tennessee law “does not presume that a child should bear his or her father’s surname.”  [Editorial note: This seems an awful lot like a gender-discriminatory law that cannot withstand intermediate scrutiny, at least when the identity of the father is known.]  Five non-exclusive factors also govern the analysis, and the evidence here was insufficient to satisfy the burden of proof that a name change promotes the child’s best interests, so the trial court’s order is reversed.
  • Tenured Teacher hopes to create a better method for communicating with students and parents.  So she creates a website and gives her husband, a computer programmer, access to student information potentially protected by the Family Educational Rights and Privacy Act, better known as “FERPA.”  This gets her a reprimand and one-day suspension, which she challenges in court under the Tennessee Teacher Tenure Act.  Trial Court: Given Teacher’s “noble intentions,” her challenge succeeds.  Tennessee Court of Appeals: Teacher’s opening filing was not a petition for judicial review; it was an unsworn letter asking for an extension to the filing deadline.  And since the thirty-day petition deadline is jurisdictional, the trial court lacked subject matter jurisdiction, so its judgment is vacated and Teacher’s discipline stands.
  • Litigants fight over whether a Memphis Zoning Board erred in upholding a “Zoning Letter” finding that the philanthropic use of non-residential property was permissible even though the property was located in a residential zoning district.  Tennessee Court of Appeals: Given that the Zoning Letter “is, on its face, simply inaccurate” (since the variance the parties are fighting over had nothing to do with approving a philanthropic use), the Board’s action upholding the Zoning Letter was arbitrary and capricious, and the trial court’s decision upholding it is reversed.  Far more interestingly, though, the Court’s opinion pastes several primary sources documents directly into the body of opinion, which in your summarist’s opinion is a welcome and unusual development that helps improve transparency and public confidence that the appellate record is being summarized accurately.
  • Wife files for divorce against Husband, serves him with process, then moves for default after Husband declines to respond.   The trial court then holds a hearing and grants wife a default divorce judgment and permanent parenting plan that includes child support obligations.  Nine months later, Husband moves to set aside the default judgment, claiming he never received notice of the motion for default.  The trial court grants Husband’s motion, and Wife appeals.  Tennessee Court of Appeals, somewhat questionably: The trial court misapplied a factor, but between the deference accorded to its credibility determinations, the significant discretion that trial courts have when deciding whether to set aside defaults, and Tennessee law’s preference for resolving cases on their merits, we affirm.
  • Rodney contracts to purchase unimproved real property from Jimmy for $155,000.00 with no financing contingency.  Rodney is supposed to furnish proof of available funds, but he does so both late and insufficiently before curing the issue.  Later on, Jimmy refuses to proceed with closing.  Tennessee Court of Appeals: Based on the trial record, Rodney’s breach was non-material, so it did not relieve Jimmy of the obligation to close.  Jimmy’s breach—failing to close on the sale of the property as agreed—was material, though.  So Rodney wins, and Jimmy now owes him his attorney’s fees under the contract’s fee-shifting provision.
  • In a business divorce, Party A loses at trial and is ordered to pay Party B a large money judgment.  The parties then submit an agreed bond order to stay execution pending appeal.  While the appeal is pending, Party A allegedly violates the bond order and gets hit with a large contempt judgment as well.  The Tennessee Court of Appeals then vacates the trial court’s original judgment on appeal, and afterward, Party A appeals the later contempt judgment.  Tennessee Court of Appeals: The Collateral Bar Rule does not apply to civil contempt proceedings, which is a fancy way of saying that a civil contempt judgment falls with the original order if the original order turns out to have been erroneously or wrongfully issued.  Thus, since we vacated the original order here, the civil contempt judgment is nullified.  [Editorial note: There is some language in the opinion suggesting—based on a citation to an out-of-jurisdiction case—that the referenced exception to the Collateral Bar Rule applies only to civil (but not criminal) contempt claims.  That’s an open and debatable question under Tennessee law, though.  For some very important reasons that boil down to “bad Tennessee trial court judges frequently issue flagrantly unconstitutional speech-based prior restraints, and the targets of those unconstitutional orders should not have to risk incarceration for exercising their First Amendment rights if they challenge the prior restraints successfully,” the exception should apply to criminal contempt claims, too, at least where prior restraints are concerned.)
  • Franchise Entities sue Defendant for a bunch of torts including business disparagement, claiming (among other things) that the Defendant made tortiously disparaging statements about them.  The Franchise Entities also seek one of those flagrantly unconstitutional speech-based prior restraint orders mentioned above.  After being hit with a Tennessee Public Participation Act Petition, though, the Franchise Entities voluntarily dismiss all of their speech-based tort claims, leaving only claims “for breach of contract and [Defendant’s] duties of loyalty and care.”  As a result, the trial court rules that the TPPA does not apply, and the Defendant takes an interlocutory appeal as of right.  Tennessee Court of Appeals: The Defendant was sued for statements published over the internet that were made in connection with an issue related to the regulation of franchisors, which is a matter of public concern.  And the fact that the Franchise Entities dropped their speech-based tort claims “matters little” here, since it is clear as day that the Defendant was sued “in response to” the statements.  So the trial court’s order is reversed, and the case is remanded with instructions to consider the second and third steps of the TPPA dismissal analysis.  [Editorial note: Some trial courts have been getting this analysis wrong even when the issue is uncontested, which sucks a lot because the whole point of the TPPA is that such claims get adjudicated quickly and inexpensively.]
  • Land dispute spirals into some absurd IIED, intrusion upon seclusion, and civil conspiracy claims.  Tennessee Court of Appeals: The Plaintiff’s claim about illicit cutting of trees is valid and can proceed.  The rest of the Plaintiff’s claims go in the garbage.
  • Pro se litigant who is trying to restore his citizenship rights files accelerated interlocutory appeal of the trial court’s orders denying his recusal motions.  Tennessee Court of Appeals: That the trial court found you to be non-credible at an earlier trial is not a cognizable basis for recusal.  The Court has no pecuniary or property interest in the litigation, either, so it did not need to recuse.
  • Plaintiff: My Attorneys committed legal malpractice by failing to explain to me what “with prejudice” meant, which (Plaintiff asserts) violated BPR rules, among other things.  Tennessee Court of Appeals: BPR rules “are not a basis for civil liability,” and neither are criminal statutes.  Nor is there any civil claim for “Racism,” and the complaint does not articulate any racist actions by Attorneys anyhow.  Further, “[h]aving received the document, [the Plaintiff] was charged with reading it.  If there were terms in the order that [Plaintiff] did not understand, it was incumbent on him to contact his attorneys to explain the terms or to otherwise research the question himself.”  For that reason, the Plaintiff’s legal malpractice claim is both time-barred and fails on its merits, too.  Thus, the trial court’s order dismissing Plaintiff’s entire complaint for failure to state a claim is affirmed.
  • Pro se Plaintiff sues Walmart for premises liability, claiming she “sustained injuries while retrieving a shopping cart” because “a Walmart employee pushed carts into Plaintiff[.]”  The case proceeds to a jury trial, which results in the jury finding Wal-Mart liable but awarding her $0.00 in damages (note: this makes no sense, given that damages are an element of negligence).  Plaintiff appeals.  Tennessee Court of Appeals: Because you complied with 0.00 briefing rules, you get pretty much the same outcome here, and this appeal is dismissed.
  • Decedent dies, and no original will can be found.  One of Decedent’s daughters then petitions to administer a copy of a lost will and admit a copy of the Decedent’s 2017 will, which the trial court grants.  Tennessee Court of Appeals: To prevent what would otherwise be a ****ton of fraud, “there is a strong presumption” that a will “was destroyed or revoked by the testator” when it can’t be found, and that presumption can only be overcome by “the clearest and most stringent evidence.”  Because we don’t have that here, the trial court erred in admitting the 2017 will copy.
  • Business relationship deteriorates, causing Parties to sue one another and others.  Tennessee Court of Appeals, 26 pages later: The litigation privilege protects one of the parties (an attorney), the slander of title claim in the case fails for insufficient evidence of malice, the Parties consented to trial on the breach of contract claim, and Plaintiff gets $125,000.00 because a defendant failed to make payments under their 2008 agreement.  More importantly for precedential purposes, though, the trial court did not err in refusing to grant fees under the mandatory contractual fee-shifting provision involved here because the Plaintiff admitted it was “exceedingly difficult to provide any precise separation” between the compensable and non-compensable claims and thus failed to prove that its applied-for attorney’s fees were devoted to the claim on which it prevailed.  Because the Plaintiff prevailed on appeal, it gets its attorney’s fees here, though, at least “provided [it] can prove them” on remand.
  • Tennessee Court of Appeals: Judgments aren’t final until the trial court determines the amount of attorney’s fees to be awarded, so the judgment Appellant seeks to appeal is not a final judgment, and this appeal is dismissed.
  • Plaintiffs appeal dispute over recovery under the Tennessee uninsured/underinsured motorist statutory scheme.  But since the case is long, the subject matter is dense, and the opinion isn’t text-searchable for some reason, you’ll have to read the Tennessee Court of Appeals’ opinion yourself.
  • Pro se litigant files health care liability (medical malpractice) action against Vanderbilt.  Tennessee Court of Appeals: And just by reading the preceding sentence, seasoned readers already know what happened.  So the trial court’s judgment dismissing the lawsuit for failure to comply with the mandatory certificate of good faith filing requirement is affirmed.
  • Insurance Company does what insurance companies exist to do (deny coverage).  Insurance Company specifically claims that its insured “was not entitled to additional living expenses under the policy because she did not have an insurable interest in the property, and therefore, the property was no longer her ‘residence premises.’”  Tennessee Court of Appeals: An insurable interest, which is broadly construed under Tennessee law, does not require ownership or title.  So Insured gets her coverage, because she continued to reside at the home at the time of the fire, even though her continued possession of the property was being challenged.  Judicial estoppel also doesn’t apply here for fact-specific reasons, so Insurance Company loses, at least for now.
  • Man gets booted from his seat on the HOA board, sues to reclaim it.  Tennessee Court of Appeals: Although there is no party-presentation problem here when the trial court relied on different analysis than the parties presented, the trial court’s analysis that the HOA’s bylaws couldn’t be amended was wrong.  But because the relevant section of the bylaws conflicts with a Tennessee statute, Man could not lawfully be removed unilaterally, so he gets his board seat back.

Firm Highlights

Our First Amendment win in West Tennessee goes national!  Read all about it in the New York Times, or better yet, the Commercial Appeal, which doesn’t shy away from using a good quote.  We’re working on some other noble stuff, too.  Read the New York Times Magazine’s write-up of client Kaye Maze’s incomprehensibly tragic miscarriage of justice (appeal pending) here, and the Nashville Banner’s coverage of an illicitly-sealed-records-of-judicial-incompetency kerfuffle (appeal pending) here.