June 8–June 21, 2024

  • Tennessee Court of Appeals, in grandparent visitation litigation: As a reminder, even if everyone (including us) agrees you’re right about some issue, if you present it for the first time on appeal, it’s waived.  There’s tension between “the duty of this Court to apply the controlling law, for which there is a basis in the record, whether or not cited or relied upon by the parties” and party-presentation rules, though, so out of an abundance of caution, we’ll consider the issue anyway (and also hold that Grandma loses anyway).
  • Parties engage in tort litigation that arises out of something your summarist does not understand called an “inter vivos trust.”  Tennessee Court of Appeals: We will simplify the dispute by affirming the trial court’s order that the plaintiff’s claim for breach of fiduciary duty is time-barred and the plaintiff’s claim for conversion fails to satisfy Rule 9.02’s particularity requirements for pleadings sounding in fraud.  There’s a nice primer along the way about when a trial court’s grant of a motion to dismiss should be affirmed—rather than reversed with instructions to treat it as a motion for summary judgment—under circumstances when the motion includes a bunch of material outside the pleadings, too.
  • “This appeal arises from a dispute regarding a residential property mortgage and the subsequent default, foreclosure, and eviction.”  Tennessee Court of Appeals: But because the Appellant’s notice of appeal was not timely filed due to serial post-judgment motions below, we don’t need to go further beyond that.
  • Tennessee Court of Appeals: Unsworn expert reports can maybe be cited in opposition to a motion for summary judgment!  We aren’t going to say one way or another in this stupid slip-and-fall case involving a lady who “walk[ed] into an area which was colored differently than the floor, elevated from the floor, and filled with plants,” though, because “the trial court’s ruling does not provide an adequate explanation of how the report factored into its conclusion that no material facts were in dispute.”  Before you get too excited, this decision is also designated non-citable.
  • Corporations: The Tennessee Department of Revenue was wrong to issue an additional tax assessment and some penalties against us, so the assessments should be invalidated.  Tennessee Court of Appeals (twice): Could be, but since you filed your challenge one day late, that’s your problem (or probably your attorney’s, since, you know, malpractice).  We offer you a concluding footnote on how counting works, too.
  • “This appeal involves the right to a nonsuit pursuant to Tennessee Rule of Civil Procedure 41.01,” one of your summarist’s most frequently litigated practice areas and the bane of his existence.  Following a hearing on a motion to dismiss, the trial court orally rules that the motion should be denied as to all claims but one, which the trial court takes under advisement.  Afterward, the plaintiff files a notice of voluntary dismissal, to which the Defendants object.  Trial Court: The Defendants had a vested right that prevented the Plaintiff from nonsuiting after I took the matter under advisement, so the claim is dismissed with prejudice.  Tennessee Court of Appeals: Wrong.  “Although the trial judge had taken a limited issue under advisement and planned to enter an order detailing its findings concerning the applicable statute of limitations, it had not made any ruling on that issue[,]” so Rule 41.01’s vested rights exception did not apply.
  • Founding Member of a ridiculously high-volume Social Security Disability law firm sues his partners.  Tennessee Court of Appeals: And since the trial court’s determination that the other members violated their duties of good faith and fair dealing, violated their fiduciary duties, engaged in a conspiracy, and converted the plaintiff’s funds was just fine, we affirm the Founding Member’s large judgment against them.
  • Appellants seek accelerated interlocutory review of trial court’s order denying their motion to recuse.  Tennessee Court Appeals: Did you all even try?  “Meticulous” compliance is required for this sort of appeal, but you all left out a copy of the trial court’s order and failed to comply with a bunch of other mandatory requirements below, too.  So “we dismiss the appeal for failure to comply with Supreme Court Rule 10B.”
  • Trial court, without notice to the parties: The restrictive covenant that the HOA seeks to enforce here is unenforceable due to a fatal ambiguity, so the HOA’s complaint is dismissed for failure to state a claim.  HOA: Hey! The other side didn’t even argue that, so I didn’t get to address it.  Tennessee Court of Appeals: Indeed.  “We conclude that the court erred in dismissing this action without affording the HOA a full and fair opportunity to defend against the basis for the dismissal.”  And the HOA’s complaint contains sufficient factual allegations to survive a motion to dismiss, too, so we also decline to affirm on alternative grounds.

Firm Highlights

It has been a wild few days, but reporters are not going to jail for doing lawful reporting this week, so that’s good.  Tennessee’s judiciary did not exactly acquit itself well on the issue, though.

Not unrelatedly: We are getting pretty tired of Tennessee’s appellate courts getting important issues wrong and attempting to make bad law on the backs of poorly-represented litigants.  So we are getting increasingly aggressive about trying to do something about it, like asking to intervene in this appeal where a Court of Criminal Appeals panel invented a jurisdictional defect that, if permitted to stand, is going to prevent a lot of wrongly or unfairly convicted defendants from getting their claims heard.