March 22–March 29, 2024

  • Witness: Shows up voluntarily for a hearing.  Trial Court: “Sir, let me tell you what the law says. This isn’t me, Judge Michael Binkley, saying this. This is the law that I need for you to understand so we don’t have a problem later on. . . .  You’re not to discuss with this child the testimony you hear in this courtroom. . . . You don’t talk to a young child about adult matters in the courtroom.”  Tennessee Court of Appeals: The law emphatically does not say that.  “[T]he Trial Court appears to have based its decision to restrict Petitioner’s speech simply on its subjective view about what children should or should not hear. That will not suffice. A trial court’s personal opinion is not a basis for restricting a person’s constitutional right to free speech”—particularly about a trial court’s illegal bail decision that “this Court vacated three days later”—and “[i]t is little wonder that Respondents concede they have found no authority for such a proposition.”  So the Trial Court’s prior restraint orders are reversed.  [This is a Horwitz Law, PLLC case.]
  • Anti-abortion protestor who protests outside of a specific abortion clinic seeks orders of protection against pro-choice protestors, claiming that they variously “made sexually suggestive comments and gestures toward her, kicked her sign, yelled into her face, invaded her personal space, followed her, and repeatedly stepped on her feet throughout the pertinent time period.”  Trial Court: Denied for insufficient evidence of stalking, which is necessary to get an order of protection here.  There was also no proof of emotional distress; “Petitioner was seen putting her hands on others,” “her continued interactions did not reflect someone who had been terrorized, frightened, intimidated, threatened, harassed, or molested[,]” and “[t]he record confirms that Petitioner was able to calm herself from her time at the Clinic with a glass of wine before bed.”  Two-thirds of the Tennessee Court of Appeals: Affirmed.  Also, following the U.S. Supreme Court’s decision in Dobbs, “this action is now moot because the Clinic no longer exists.”  One-third of the Tennessee Court of Appeals: Affirmed, but the case isn’t moot.
  • Husband files petition for a declaratory judgment concerning whether a provision of the parties’ marital dissolution agreement concerning military retirement was modifiable.  Wife moves to dismiss for failure to state a claim.  Trial Court: Dismissed for failure to state a claim.  Tennessee Court of Appeals:  How many goddamn times do we need to tell trial courts to stop dismissing declaratory judgment controversies for failure to state a claim, the whole purpose of which is to afford parties relief from uncertainty even if they are wrong?  Apparently at least one more.  Husband loses on the merits, though, so the judgment is affirmed as modified.
  • High-speed chase results in driver who is evading a Knox County Sheriff’s Deputy crashing into Plaintiff.  Plaintiff sues Knox County for negligence.  Tennessee Court of Appeals: “[N]on-exclusive factors for” determining negligence here include “‘the speed and area of the pursuit, weather and road conditions, the presence or absence of pedestrians and other traffic, alternative methods of apprehension, applicable police regulations, and the danger posed to the public by the suspect being pursued.’”  And “considering the totality of the circumstances, we agree with the trial court’s finding that [the Deputy] did not act unreasonably in this case.”
  • Property owner buys some unimproved land in 2017.  Afterward, he fails to update his address with the property assessor and other taxing authorities, and he also fails to pay taxes for four years.  Following notice by publication in a local newspaper, taxing authorities get a default judgment and sell it at a delinquent tax sale, though there is a delay in recording the sale for some reason.  Property owner later comes to find that his property has been sold and that the limitations period for setting aside the sale has expired, prompting him to sue.  Tennessee Court of Appeals: “It is the ‘responsibility of the property owner’ to register his or her name and address with the property assessor . . . to facilitate notice by providing a current address where the owner can be reached.”
  • Different taxpayer fails to pay property taxes “for a number of years,” similarly resulting in her property being sold at a delinquent tax sale.  Taxpayer sues the government and the Purchaser of her property, claiming she didn’t receive notice before her property was sold.  Tennessee Court of Appeals: “Due process does not require that a property owner receive actual notice before the government may take his property”—it only requires the government to “provide ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections’”—and here, “sending notice of a tax sale to the address provided by the property owner was ‘reasonably calculated’ to apprise the property owner of the pending tax sale.”
  • Pro se inmate sues Tennessee’s Director of Sentence Management Services, asks Davidson County Chancery Court to credit certain pre-trial jail credits in a way he prefers.  While his request appears consistent with his sentencing court’s order, it would result in illegal “double-dipping,” wherein Inmate would get the same jail credit applied to two different consecutive sentences.  Trial Court: Inmate gets a merits judgment!  (Not an easy feat.)  He loses on the merits, though, which isn’t quite as good.  Tennessee Court of Appeals: Unfortunately, due to inmate’s failure to comply with basically all of our procedural rules, he doesn’t get another merits judgment here; instead, his appeal is dismissed for briefing non-compliance.  He has company, though, because:
  • Tennessee Court of Appeals: In light of the fact that pro se Appellant “fails to include any citation to the record in support of his statement of facts, or indeed, any citation to the record at all[,]” “we decline to address the merits of this appeal” and dismiss it.
  • Renal care company retains commercial real-estate broker to help the company establish dialysis clinics.  Company agrees to pay Broker a 4% commission on gross rental payments “upon signing of the lease and at the renewal or extension of such leases.”  After Broker’s contract was terminated, Company “negotiated and executed amendments to the leases without [Broker’s] participation[,]” and Broker demands a commission.  Trial Court: “[E]ight of the amendments were renewals or extensions” for which Broker is entitled to a commission.  Tennessee Court of Appeals: Two of the seven appealed amendments were new leases, so no commission for those, but otherwise, “the evidence does not preponderate against the trial court’s findings with respect to five of the seven lease amendments at issue in this appeal.”
  • Tennessee Court of Appeals: “This appeal arises from a divorce after a short marriage.”  And this opinion is even shorter, because “we are not confident that the language in the trial court’s order was intended to deny attorney fees[.]”  So the appeal is dismissed for want of a final judgment.
  • Trial Court (November 3, 2023): Final order!  Appellant (December 8, 2023): Notice of Appeal!  Tennessee Court of Appeals (March 26, 2024): Dismissed!  (Because a notice of appeal must be filed within 30 days, and “[t]he thirty-day time limit for filing a notice of appeal is mandatory and jurisdictional in civil cases.”)
  • Trial Court (December 27, 2023): Non-final order!  Appellant (sometime in January 2024): Notice of Appeal!  Tennessee Court of Appeals (March 22, 2024): Dismissed for lack of finality!
  • Tennessee Court of Appeals: By the end of this 30-page easement dispute involving a shared driveway between adjoining property owners, you will learn that the pro se litigant lost and the petitioners carried their burden to prove an implied easement and an easement by necessity.  You’ll have to read it yourself to find out why, though, since your editor just scrolled down to the part about why pro se litigants—even pro se attorney litigants—can never win attorney’s fees.
  • Tennessee Court of Appeals: Though Wife nearly got tripped up by waiver given her noncompliance with a special appellate rule in domestic relations cases concerning “the classification of property or debt or with the manner in which the trial court divided or allocated the marital property or debt” (you have to file a special table), she skates because we suspend the rule under the circumstances presented.  Wife loses the appeal, though, since particular property was correctly found to be Husband’s separate property, not transmuted marital property.  As the trial court found: “[N]ot only did husband not evidence any intention to make a gift of this separate property to the marriage, he acted in such a way by refusing to put her name on the title despite requests, to evidence his intention that the property remained his separate property.”  (One wonders whether this had anything to do with the divorce.)
  • Son sues Mother and various other family members for breach of contract, libel, slander, and wrongful death following the death of Father.  Tennessee Court of Appeals: If you guessed from the preceding sentence alone that Son is acting pro se, you guessed right.  Also, in light of the fact that his brief is incoherent, his appeal is dismissed for noncompliance with appellate briefing rules.
  • Four creditors—including JP Morgan Chase Bank, Bank of America, and some other serious entities—file separate claims against an Estate.  The Estate timely files sworn exceptions to each claim.  Though no testimony was introduced and no representative appeared on behalf of any creditor at the resulting hearing, the trial court denied the exceptions for some reason.  So the estate appeals, and again, none of the creditors participate.  Tennessee Court of Appeals: Normally this would be the end of the matter, but the non-participating parties won below, and “we do not grant default judgments in the court of appeals.”  Upon review, though, the creditors’ claims either did not comply with statutory requirements or failed for lack of proof.  So “we reverse the judgment of the trial court and remand for entry of judgment in favor of the estate.”

Firm Highlights

Congratulations to Horwitz Law, PLLC client Michael Malone!  As summarized in the first opinion above, Mr. Malone was subjected to an illegal prior restraint against protected speech—something that is basically never supposed to happen in American law (but happens an awful lot in Tennessee).  Read Mr. Malone’s brief here.  Relatedly, did you know that Horwitz Law, PLLC has an entire prior restraint and speech defense practice?  We do!  You can read about it here.

Congratulations to Horwitz Law, PLLC clients Mollie and Michael Slaybaugh!  A couple of years ago, law enforcement blew up their home by firing dozens of tear gas cannisters into it, badly destroying it.  (They were not the targets and were not alleged to have done anything wrong.)  Their insurance company refused to pay for the damage, citing an exclusion that was designed “to exclude coverage for the intentional destruction of property by governmental authority because of some hazard that the property presents, such as when the government order the destruction of vegetables that are infected with a Mediterranean fruit fly.”  This week, the Rutherford County Chancery Court ordered their insurer to pay up.