March 8–March 21, 2025

  • Neighbors hate one another.  After doing some research, Neighbor #1 posts (as part of a larger statement, much of which was uncontestedly true): “The criminal check revealed that [Neighbor #2] has a criminal record in Texas. [Neighbor #2] moved to Knoxville from Texas after she was arrested for ‘Deadly Conduct’ with use of gun.”  Unfortunately, this statement is only partly true; Neighbor #2 did plead guilty to a “Deadly Conduct” charge in Texas, but that charge arose from a DUI, not “use of a gun.”  Neighbor #2 thus sues for defamation and false light, the trial court rules in her favor after a bench trial, and Neighbor #1 appeals.  Tennessee Court of Appeals, dubiously: “While a DUI charge is a serious matter, Defendant’s statements fundamentally distorted the truth about [Neighbor #2’s] conviction in a manner highly offensive to a reasonable person.  The import, or thrust, of [Neighbor #1]’s statements about deadly conduct and use of a gun was that [Neighbor #2] was violent or aggressive based on her conviction in Texas many years earlier.  That is materially different from the truth, which is that [Neighbor #2] reached a plea deal in a DUI case and no gun was involved at all.”  We also somehow affirm a punitive award under these circumstances.  And despite being forced to reduce the trial court’s judgment by $20,000 for lack of any evidence of reputational harm, we still uphold it.  [Editorial note: Apart from some other questionable aspects of the opinion, the decision is wrong on a basic point.  Tennessee’s approach to defamation necessarily requires injury to one’s reputation; that is the reason for multiple defamation elements, like our publication-to-third-parties requirement and the requirement that a publication hold a plaintiff up to public “disgrace.”  This decision thus conflicts directly with both the way that Tennessee has historically treated the issue, see, e.g., Davis v. The Tennessean, 83 S.W.3d 125, 130 (Tenn. Ct. App. 2001) (“To constitute actionable defamation there must be impairment of reputation and/or standing in the community.”), and the way that many other jurisdictions treat the issue, see, e.g., Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 28 (Minn. 1996) (“[Defendants] argue that a showing of actual harm to reputation should be required before a defamation action can be sustained. We agree.”); Smith v. Durden, 2012-NMSC-010, ¶ 1, 276 P.3d 943, 943 (“The issue before the Court is whether New Mexico requires a showing of injury to one’s reputation to establish liability for defamation. We hold that it does, as injury to reputation is the very essence of the tort of defamation. Evidence of humiliation and mental anguish, without evidence of actual injury to reputation, is insufficient to establish a cause of action for defamation.”); see also Counterman v. Colorado, 600 U.S. 66, 73 (2023) (characterizing defamation as “false statements of fact harming another’s reputation.”).]
  • Nurse employed in Vanderbilt’s neurosurgical intensive care unit is called on to administer medication—specifically, Versed (a relaxant)—to a patient.  Nurse accordingly types “VE” into the override function of the medication dispenser, negligently removes a paralytic drug called Vecuronium instead (which has been used in some states’ lethal injection protocols), and administers it to the patient, causing patient to die a horrible death.  Nurse is later prosecuted and convicted criminally for negligent homicide.  Afterward (but not beforehand, when the relevant Board considered but declined to pursue professional discipline), Nurse’s nursing license is revoked for “unprofessional conduct, failure to maintain a record, and abandonment or neglect of a patient requiring nursing care.”  Nurse appeals the revocation of her license through the administrative process and then up to the Court of Appeals.  Tennessee Court of Appeals: Contrary to the trial court’s ruling on the matter, Nurse’s argument that the Board’s initial decision not to pursue professional discipline should have been treated as res judicata and preclusive of the later disciplinary proceedings is waived; litigants are obligated to raise and preserve their arguments at the administrative level, and Nurse did not do that here.  Further, a letter that the Nurse characterizes as “newly discovered” evidence could have been discovered by Nurse during the initial administrative proceedings, so there was no error in failing to reopen the proceedings to allow her to introduce it (and it would not have affected the outcome of the proceeding anyway).  Thus, the Board’s revocation of Nurse’s license is affirmed.
  • Police Officer sues Defendants for defamation.  Defendants petition to dismiss the suit under the Tennessee Public Participation Act; the trial court denies their TPPA petition on its merits.  Defendants then file an interlocutory appeal as of right, and Police Officer responds by nonsuiting his case.  Tennessee Court of Appeals:  Can’t do that.  The Defendants’ appeal divested the trial court of jurisdiction to enter a nonsuit order.  Also, Defendants had a vested right to appellate review of the trial court’s denial of their TPPA petition.  As a result, the nonsuit order is vacated.  The Defendants also win on the merits because Police Officer failed to prove actual malice.  So the Police Officer’s claims are dismissed with prejudice, and he gets to pay the Defendants’ attorney’s fees, too.
  • After Employee is passed up for a promotion, she tenders her resignation and gives her two weeks’ notice. Employer responds by telling her that her employment is terminated effective immediately.  Afterward, Employee seeks unemployment benefits, which Tennessee’s Department of Labor and Workforce Development declines to pay on the asserted basis that Employee had voluntarily quit her job (the relevant statute provides that an employee is disqualified from receiving unemployment benefits “[i]f the administrator finds that the claimant has left the claimant’s most recent work voluntarily without good cause connected with the claimant’s work.”).  The trial court rules for the Department, and Employee appeals.  Tennessee Court of Appeals: Reversed.  Tennessee law provides that unemployment statutes must be construed liberally in the employee’s favor, and that canon controls the outcome here.  Under the facts presented, Employee’s unemployment on the date she stopped being employed “was unexpected and ‘through no fault of her own.’”  Thus, Employee was entitled to benefits.  [Editorial note: There is nothing in this opinion about deference to agency interpretations of statutes, which is great for those of us who don’t believe such deference should exist.]
  • Credit Union obtains default judgment against Dealership after Dealership fails to timely respond to a complaint served on one of its representatives (who purportedly left the Dealership’s employ shortly after being served).  Dealership later moves to vacate the judgment of default on “excusable neglect” grounds, which the trial court denies.  Dealership appeals.  Tennessee Court of Appeals:  “[T]here is simply no explanation for the majority of the [Dealership’s] underlying conduct, and what conduct is explained involved deliberate choices and factors within the Dealership’s reasonable control.”  So the trial court did not abuse its discretion by refusing to set aside the default judgment.
  • As partial compensation for services rendered, Property Owner agrees to pay Engineer a 6% share of the gross proceeds when certain lots of property were sold.  Property Owner then dies, and an Heir inherits the properties, which are then sold.  When the Heir declines to pay Engineer a 6% share of the gross proceedings, Engineer sues the Heir for the 6% share.  The trial court rules in Engineer’s favor, and Heir appeals.  Tennessee Court of Appeals:  Reversed.  The trial court erred in holding that Engineer’s right to payment was secured by a property lien, because even assuming that that were true (we are skeptical), the protection afforded by the lien statute lapsed many years earlier, and Engineer did not file a timely enforcement action.  Outside of that, Engineer’s only remedy was to file a claim against the Decedent’s estate, because “[t]he nonclaim statute broadly applies to all claims or demands arising from a debt of the decedent, whether matured or unmatured,” and Engineer’s claim was for an unmatured contingent liability.  Thus, Engineer’s failure to file a claim against the Decedent’s estate within the statutory deadline precludes Engineer’s claim, and he has no cause of action against the Heir, who was neither a party to the contract nor a joint obligor on the debt due.
  • Pro Se Litigant files a civil summons in General Sessions Court asserting that certain items she pawned were returned to her damaged.  But she fails to appear for hearing, so her case is dismissed.  Pro Se Litigant then files an untimely appeal to Circuit Court, so her case is dismissed again.  Undeterred, Pro Se Litigant appeals again.  Tennessee Court of Appeals: The Appellant’s massive briefing deficiencies—including her failure “to make a legal argument for this Court to consider”—preclude our review, so her appeal is dismissed for non-compliance with appellate rules.
  • Represented party seeks accelerated interlocutory review of an order denying a motion to recuse.  Tennessee Court of Appeals: The requirements that govern recusal appeals are strict and mandatory.  Here, the Appellant does not make a relevant argument, and “[b]ecause Appellants have not provided this Court with a copy of the motion to recuse or any documents filed in support thereof, we are unable to determine whether Appellants satisfied the requirements of Rule 10B, section 1.01.”  So the appeal is dismissed for non-compliance with appellate rules.
  • Woman sits on bench in front of Restaurant; she falls to the ground and allegedly sustains injuries after the bench “flip[s] or tilt[s] ‘from end to end.’”  Woman then sues Restaurant for negligence.  She loses and appeals.  Tennessee Court of Appeals: Affirmed.  There was no evidence that the bench was in any kind of dangerous or defective condition, which precludes Woman’s negligence theory.

Firm Updates

Congratulations to Horwitz Law, PLLC client Layla Soliz!  Last week, Mrs. Soliz settled the damages portion of her claim against Knox County concerning its Sheriff’s illicit publication of a booking photo in which Mrs. Soliz was depicted without her hijab.  Because recoveries in cases like this are generally lumped together with attorney’s fee awards (like Horwitz Law client Sophia Johnston’s win against Rutherford County last year, for example), it’s possible that Mrs. Soliz’s $71,500.00 settlement is the largest damages recovery ever obtained in this context.  But because Knox County won’t change its booking policy or delete her uncovered photo, the litigation will continue.