May 18–June 7, 2024

  • In post-divorce litigation, Father charges Mother with 29 counts of criminal contempt for alleged violations of the Parties’ permanent parenting plan.  Mother is then convicted of seven counts of criminal contempt and sentenced to 29 days in jail.  Tennessee Court of Appeals: Father did not carry his burden on any count, so all the convictions are reversed, and Mother gets her fees.  “We also reiterate that the purpose of criminal contempt is to preserve the authority and dignity of the courts. It is not a weapon to be used to torment former spouses or to vindicate the parties.”  [Editorial note: If courts actually feel that way, perhaps private, motivated litigants should not have the power to initiate criminal contempt charges against their opponents.]
  • Decedent drafts his will “without the assistance of a lawyer.”   His will says: “I give, devise and bequeath solely to my wife, BEVERLY ANN DUNN, my farm located on Deadfall Road, Arlington, TN, for her to dispose of as she deems proper and to distribute some of the proceeds to my children, Leslie Dunn Harjung, David Dunn and Steven Dunn, and to my step-children Robert Logan and Angela Logan Pickett.”  Conflict predictably ensues between the children/step-children who want “some of the proceeds” from the farm and Wife, to whom Farm was “solely” given.  Tennessee Court of Appeals: Long story short, Wife gets unrestricted ownership of the farm and children/step-children aren’t entitled to anything.
  • Tennessee Court of Appeals, after 31 pages of an HOA vs. Developer opinion: “[G]eneral legal principles as well as public policy considerations prohibit parties from assigning declarant rights without the attendant obligations,” so the successor owner assumed all of the previous owner’s rights and responsibilities as the declarant under the development’s recorded restrictive covenants.
  • Plaintiff is shot three times a nightclub.  He later sues the club Pperator for negligence-based premises liability claims.  Club Operator defaults; get tagged with a default judgment; then moves to set aside the judgment many years after it entered, which the trial court denies.  Tennessee Court of Appeals: “Defendant has failed to provide a proper explanation for why he failed to file a motion in this case until seven years after the commencement of this action and six years after the entry of default judgment.”  So the trial court did not abuse its discretion in denying the Club Operator’s motion to set it aside.  And even though the trial court did not make findings of fact to support its damages award, “the record is sufficient for us to make our own determination regarding where the preponderance of the evidence lies,” and we find the trial court’s $300,000.00 noneconomic damages award to be just fine.
  • Competing declaratory judgment claims unfold over an oil and gas lease between the owner of mineral rights and oil production company.   Tennessee Court of Appeals, 23 pages later: Even though the well was in production, the lease terminated automatically because the company didn’t comply with a requirement that it make at least one oil sale within a one-year period (even if it wasn’t the company’s fault), so the owner wins.
  • Man seeks to quiet title to property he claims he owns and to eject Other Man who purchased the property in good faith after convoluted bankruptcy proceedings that apparently voided an earlier transfer of the property and compromised the chain of title.  Tennessee Court of Appeals: “If a title attorney would not have been placed on inquiry notice by the second bankruptcy order – and we, as the Trial Court was, are unable to say otherwise given the uncontradicted evidence – then we certainly would be unable to conclude that [Other Man], as an ordinary purchaser should be charged with inquiry notice.”
  • Decedent’s Widow and Trust Company representing the Decedent’s estate fight over pension benefits.  Tennessee Court of Appeals: Decedent’s prenup is ambiguous and contains conflicting provisions as to whether the pension benefits were to be treated as Decedent’s separate property, so summary judgment was improper here.  As such, we “remand the case to the trial court for an evidentiary hearing to develop facts to aid the court in applying established rules of construction with consideration of parol evidence as necessary to determine the [Decedent’s] intent.”
  • Tennessee Court of Appeals: “The sole issue germane to this appeal is whether, in order to execute a valid will in this State, a testator must sign their will prior to the two attesting witnesses.”  And the answer is yes, because “[i]n the absence of the testator’s signature, it is unclear to us what a potential witness would attest to, other than the existence of an unsigned will.”
  • “This appeal arises from a dispute over the construction of a swimming pool.”  Buyer enters into contract with Swimming Pool Company to build a pool.  Swimming Pool Company then builds the pool, but Buyer fails to pay $32,703.00 of the $67,730.00 purchase price.  Swimming Pool Company then wins at trial.  Tennessee Court of Appeals: Far and away the most interesting part of this appeal is the lengthy, growing, and for some reason still unresolved split of authority over whether a notice of appeal that designates a specific order other than the final order in the case as the order to be appealed precludes an appellant from appealing other orders in the case.  We go with the modern line that says such a notice does not limit appellate review of any issue.  Turning to the merits: “Because [Buyer] has failed to provide this Court with a transcript or statement of the evidence,” he loses on appeal.  He gets to pay Swimming Pool Company’s appellate attorney’s fees based on the Parties’ contract, too.
  • Buyer agrees to buy property, waives contingencies, and declines to inspect the property.  Afterward, Buyer “decide[d] that the transaction was not financially viable and indicated its intent to terminate the agreement.”  Buyer then sends a form notification indicating his intent to terminate based on two contingencies.  Tennessee Court of Appeals: “The grounds stated in the notification were not a valid basis for termination of the contract,” so the trial court’s order granting summary judgment to the Seller is affirmed.  The Seller gets its attorney’s fees, too (but not on appeal, since it waived them by failing to include the issue in its Statement of Issues).
  • Woman falls while attempting to retrieve a shopping cart, hurts herself, and sues Wal-Mart.  Tennessee Court of Appeals: The undisputed facts in the appellate record—which may not be complete, but that’s on Woman since she’s the Appellant here—“demonstrate that [Woman] can establish neither that a dangerous condition existed nor, even if a dangerous condition did exist, that Wal-Mart had actual or constructive knowledge of the dangerous condition.”
  • Legal malpractice action is narrowed to basically two issues: whether a judge should have recused and whether a litigant was deprived of due process when a judge ruled on something without oral argument during COVID.  Tennessee Court of Appeals: In order, the answers are: no, and no.  As to the latter issue: “Due process does not require that oral argument be permitted on a motion, and, except as otherwise provided by local rule, the court has discretion to determine whether it will decide the motion on the papers or hear argument by counsel.  Oral argument is especially unnecessary when only questions of law are concerned.”  [Editorial Note: Maybe trial court judges should stop permitting oral argument on questions of law as a matter of right and save us all a ton of time, then.]
  • Plaintiff sues manufacturers and sellers after her husband dies and her minor child sustains serious injuries in a car accident.  Tennessee Court of Appeals: This is all very tragic, but there is no products liability here.
  • “This is an action to rescind a quitclaim deed conveyed pursuant to a durable general power of attorney.”  Tennessee Court of Appeals: The opinion does not improve from there, but “[b]ased on [the power of attorney form’s] express declarations and the fact that Plaintiff’s power of attorney constitutes a durable power of attorney, the powers set forth in section 110” of the Uniform Durable Power of Attorney Act (governing gifts or grants) “are incorporated in the power of attorney at issue,” so the person had authority to make gifts or grants.
  • Graduate student/teaching assistant sues UT, alleges that UT breached its employment contract with him and that he was fired for discriminatory reasons.  Tennessee Court of Appeals: The first claim can only be heard by the Tennessee Claims Commission and you failed to file it there, so that one’s out.  As for the second one: it was dismissed by the trial court as time-barred, and that decision hasn’t been adequately challenged on appeal, so we consider it waived.
  • “This is an appeal by a pro se appellant.”  Tennessee Court of Appeals: And if you guessed that that first sentence means that this appeal is going to be dismissed for briefing deficiencies, you guessed correctly.
  • Tennessee Court of Appeals: Since we don’t generally consider appeal of non-final judgments, this appeal of a non-final judgment (since the trial court has “ordered that the appellant provide an accounting and scheduled a further hearing to review the status of the accounting and the sale of the properties”) is dismissed without prejudice.
  • Tennessee Court of Appeals: No final order in this case, either.
  • Tennessee Court of Appeals: Because “[t]he thirty-day time limit for filing a notice of appeal is mandatory and jurisdictional[,]” pro se litigant who appealed 32 days after a trial court dismissed her complaint against her landlord is SOL.
  • Tennessee Court of Appeals: “This case involves the claimant’s pro se appeal from the Tennessee Claims Commission’s dismissal, on res judicata grounds, of his claims of libel and malicious prosecution against the State of Tennessee.”  But since the briefing is woefully non-compliant, the appeal is dismissed.

Firm Highlights

For the past six months, the City of Lakeland, Tennessee, has been threatening and fining resident Julie Pereira for her political yard sign reading: “Fuck ‘Em Both 2024.”  Yesterday, Horwitz Law, PLLC and its West Tennessee co-counsel filed suit over the obvious First Amendment violations involved: https://horwitz.law/wp-content/uploads/Pereira-Complaint.pdf.  An incredible coincidence!  This afternoon, the City of Lakeland announced that it would dismiss with prejudice a judgment it already won against Ms. Pereira in the City’s kangaroo municipal court and give her all her money back.  Her lawsuit isn’t going away, though.

Also: That bogus appeal of the trial court ruling dismissing the bogus SLAPP-suit that three Alderman filed against their constituents was abruptly withdrawn right before briefing began, so the residents now win for good.  The constituents’ claim for fees isn’t going away, though.