June 21–July 4, 2025

  • Tennessee Court of Appeals: As a pro tip, if you execute a broadly-worded release and then sue arguable third-party beneficiaries of that release, you may find yourself in serious trouble.  And for that reason, a plaintiff’s tort claims against his former business partners—who are now agents, employees, or representatives of the company that acquired Plaintiff’s predecessor entity—were correctly dismissed as released.  [Editorial note: See this relatively recent Sixth Circuit case for a similar outcome.]
  • While acting in her capacity as a freelance writer, UT Employee writes an article for the Huffington Post.  Citizen files public records request seeking Employee’s files related to the article, which UT denies.  Citizen then sues for access, loses, and appeals.  Tennessee Court of Appeals: The Employee’s correspondence regarding the creation of the Article was not made or received in connection with official business of the university, so it is not accessible as a public record.  We also hold that the trial court clerk’s *%$!-up—failing to maintain ordered-sealed documents under seal for a time—does not make the documents public now, in part because “there is no evidence that the Materials were accessed by the public or another party.”
  • Tennessee Court of Appeals: “Centrally at issue in this appeal is the statutory scheme governing non-judicial foreclosures.”  The twist is that the mortgage lender and foreclosing entity involved here is a government entity (the City of Chattanooga), and “the government is constrained by the Constitution in ways in which private entities are not.”  Ultimately, though, we conclude that “the City acted in a private capacity in a commercial undertaking” here, which is a proprietary role, rather than a governmental one.  Thus, “the same rules that would apply to a private business or corporation apply here,” and due process constraints do not restrict them.
  • School Board adopts changes to its student code of conduct that require teachers to participate in a student discipline policy and engage in social and emotional learning support.  Teachers Association then sues over the issue, asserting—based on a state law called the “Professional Educators Collaborative Conferencing Act of 2011”—that the School Board was required to engage in collaborative conferencing before adopting such changes.  Granular litigation then ensues over the definition of the term “working conditions” under the relevant statute.  Tennessee Court of Appeals: Based heavily on a canon of statutory construction called the “reenactment canon” (which instructs that, “[w]hen the legislature makes a change in the language of a statute, we must assume that it was deliberate”), we hold that the changes were not “working conditions” subject to the collaborative conferencing requirement.
  • During the COVID-19 pandemic, USPS stopped requiring signatures for certified mail return receipts.  Tennessee law governing service of process by the Secretary of State on out-of-state motorists requires a signature, though.  So when a USPS return receipt that does not contain the defendant’s signature is offered as sole proof of service, the trial court dismisses the plaintiff’s suit for insufficient service of process.  Tennessee Court of Appeals: And it was correct to do so.  “The record contains no evidence that Defendant, or a person authorized to accept service on Defendant’s behalf, received delivery of service of process.  The postal worker’s mere notation is insufficient.”  [Editorial note: For some inexplicable reason, the trial court’s dismissal for insufficient service of process was with prejudice—rather than without—and the Court of Appeals’ opinion does not discuss the error.  Federal law explicitly makes dismissal without prejudice the appropriate remedy under these circumstances, though, see Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time.”), and given that Tennessee treats inadequate service as a personal jurisdictional defect, see Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977) (“jurisdiction of the parties is acquired by service of process.”), courts not only should not but seemingly cannot grant dismissals with prejudice under these circumstances).
  • Man is injured in automobile accident involving a state employee.  Man files a claim with the Tennessee Division of Claims and Risk Management, which on November 2, 2023 denies Man’s claim.  On January 31, 2024, Man mails a notice of appeal to the Tennessee Claims Commission, which ultimately is filed on February 5, 2024.  The Claims Commission dismisses the case as untimely, and Man appeals.  Tennessee Court of Appeals: The uncontested chronology involved here is fatal, given that Tennessee’s regulations required the proceeding to be initiated with the Claims Commission within 90 days of the Division of Claims’ denial, and mailing a document is not the same thing as filing it.
  • Company discharges Employee as part of a reduction-in-force, offers her maximum severance available under its force reduction program.  Employee seeks a more generous severance package but does not receive it.  Employee then sues, alleging race and gender discrimination.  Tennessee Court of Appeals: There’s no evidence of that, so the trial court correctly granted Company summary judgment.  Nor can Employee prevail on her claim concerning her severance pay, because her complaint here “is that she was treated the same as others,” not worse.
  • In litigation challenging tax assessment, Petitioner does not timely sign his Complaint under penalty of perjury as required by Tennessee Code Annotated section 67-1-1801(b)(2).  Trial court grants Petitioner leave to amend his complaint to cure the defect, but it certifies the ruling for interlocutory appellate review.  Tennessee Court of Appeals: Reversed.  The under-oath requirement is jurisdictional, so it can’t be cured after the filing deadline expires.  Thus, we reverse and remand with instructions to dismiss for lack of subject-matter jurisdiction.  [Editorial note: This reasoning is wrong, though the outcome may not be.  The under-oath requirement is properly treated as a “claims-processing” rule, not a jurisdictional one, though because the State stood on its rights here and arguably suffered prejudice based on the Petitioner’s non-compliance, dismissal is a permissible outcome.]
  • Ex-Husband fails to comply with alimony obligations to Ex-Wife, prompting contempt litigation.  Ex-Husband ultimately “remedie[s] all alimony arrearages” during a later hearing.  It is not clear that a merits order ever enters on the contempt claim (which would preclude a fee award under federal law, but arguably does not preclude a fee award under state law).  Trial court apparently concludes fees are due, though, and it later pegs them at $2,500 (rather than the $14,289.50 that Ex-Wife sought) based on “limited findings.”  Unhappy with the low award, Ex-Wife appeals.  Tennessee Court of Appeals: Vacated and remanded.  We’ve insisted a bunch of times that trial courts consider all ten Tennessee Supreme Court Rule 8, RPC 1.5(a) factors when making fee awards, and given that the trial court did not do that here, we vacate with instructions to follow that instruction on remand.
  • Tennessee Court of Appeals (Memorandum Opinion): In this non-citable per curiam opinion, we dismiss an appeal on non-finality grounds and incorrectly imply that pending contempt claims (which are sui generis) preclude finality, which definitely won’t trip someone up in the future.
  • In 2014, trial court enters a final divorce decree that says (among other things) the Parties’ Marital Dissolution Agreement “shall be incorporated by specific reference, with each provision of said [MDA] . . . being made an Order of the Court.”  The MDA was not attached to the final decree, however, nor was it made a part of the trial court record.  Years later, Ex-Husband allegedly violates a provision of the Parties’ MDA, prompting contempt proceedings.  The trial court then realizes that the MDA was not attached to its order back in 2014, so it grants Ex-Wife’s Tennessee Rule of Civil Procedure 60.01 motion to cure the defect and re-enters its final divorce decree nunc pro tunc a decade after the fact.  Ex-Husband appeals.  Tennessee Court of Appeals: “A missing attachment is not the same as an error in the judgment,” so “the trial court erred in using Rule 60.01” to remedy the defect at issue.  That doesn’t necessarily save Ex-Husband from contempt, though; we have never adopted a blanket rule that, “for an order to effectively incorporate a document, said document must be directly attached to the order.”  So we remand to hear the contempt claim.
  • Tennessee Court of Appeals: In this probate dispute that your summarist guesses is otherwise of interest to the Parties alone, we note that litigants cannot file motions for Rule 11 sanctions on appeal, given that Rule 11 is a rule of civil procedure that does not apply to appeals.
  • Pro Se Appellant seeks accelerated interlocutory review under Tennessee Supreme Court Rule 10B of trial court order denying motion to recuse.  Tennessee Court of Appeals: Such an appeal includes a whole bunch of strict requirements, and since Pro Se Appellant complied with none of them, we (as usual) dismiss the appeal based on rules non-compliance.  More interestingly, we observe in a footnote that “the filing of a civil action upon a pauper’s oath ‘does not relieve the person filing the action from responsibility for the costs or taxes but suspends their collection until taxed by the court[,]’” so Pro Se Appellant gets to pay the costs of appeal regardless of indigency, too.
  • Tennessee Court of Appeals: Ditto as to this Pro Se Appellant’s accelerated interlocutory appeal of a trial court order denying a motion to recuse, which failed to comply with a bunch of mandatory requirements, too.
  • Tennessee Court of Appeals: But not here!  Instead, this Pro Se Appellant’s accelerated interlocutory appeal of a trial court order denying a motion to recuse is denied because there is no evidence of bias in the record (and Appellant’s “[q]uizzical” allegations on the matter are contradictory).
  • Pro Se Appellants “appeal.”  Tennessee Court of Appeals (Memorandum Opinion): But “Appellants’ ‘brief’ to this Court is wholly deficient.  It consists of one paragraph—contained in slightly more than one page. Appellants present no issues for our review; they assert no error of law or fact.”  And because appeals have rules and stuff, we dismiss this one for failing to comply with them and also award the Appellee frivolous appeal damages, as this one had no hope of success.

Firm Updates

Congratulations to Horwitz Law, PLLC client Eriana Pitts!  After being victimized by SLAPP-suits filed by two almost unfathomably abusive plaintiffs (both of whom are now being prosecuted criminally for vandalizing Ms. Pitts’s car and cutting her brakes), Ms. Pitts has secured complete dismissal of the bogus claims filed against her, which failed facially.  But because the trial court incorrectly deprived Ms. Pitts of a complete fee-shifting award by erroneously treating her Tennessee Public Participation Act Petition as “moot,” she will get to protect other victims of SLAPP litigation by making some good TPPA law on appeal.  So stay tuned for that sometime next year.