March 2–March 8, 2024

  • Trial court issues order forbidding contact between Mother and Father who share a child.  To enable court-ordered visitation exchanges, though, the original order is then modified by agreement to require contact between Mother and Father.  After Father twice talks to Mother about their shared Xfinity account, Mother petitions for criminal contempt based on Father’s supposed violations of the original non-contact order.  Following a bench trial, Father is then convicted of criminal contempt on both counts.  Tennessee Court of Appeals: Absolutely not.  The conflicting orders created a hopeless ambiguity and, therefore, they cannot give rise to a lawful contempt conviction.  Thus, both of Father’s convictions are reversed, not just vacated, and because of that, we don’t need to touch the avalanche of other problems with the constitutionally deficient proceeding below.  [This is a Horwitz Law case.]
  • Very wealthy Ex-Husband who was just here last month appeals convictions for criminal contempt and corresponding forty-day jail sentence arising from his divorce proceeding.  Tennessee Court of Appeals: Should have hired Horwitz Law.  All of Husband’s issues are waived due to deficient briefing because the issues that were set forth in his Statement of the Issues do not encompass the arguments he makes in his brief.  So Ex-Husband’s convictions are affirmed, and to jail he goes.
  • Dispute involving a local attorney and a trial judge who has some history with the parties’ counsel devolves into claims of bias.  Plaintiffs file motion to recuse, which is denied.  Plaintiffs then file an accelerated interlocutory appeal.  Tennessee Court of Appeals: Some of the claims in this appeal are waived because they weren’t presented below.  Others are waived because the arguments aren’t sufficiently developed in the briefing.  The Plaintiffs also haven’t challenged at least two of the grounds for the trial court’s ruling, so they lose this appeal automatically, because “[g]enerally, where a trial court provides more than one basis for its ruling, the appellant must appeal all the alternative grounds for the ruling.”  The asserted factual basis underlying Plaintiffs’ remaining theory of recusal is factually wrong, too.  As a result, the trial court’s order denying the motion to recuse is affirmed in all respects.
  • Wife files for divorce against Husband who has zipper problems.  Husband then presents Wife with handwritten note stating that, in exchange for reconciliation and Wife “dropping” the divorce lawsuit, “I agree that if I cheat on [Wife] at anytime in the future, I will give up my interest in our marital residence[.]”  Wife’s divorce lawsuit is later dismissed for failure to prosecute.  Afterward, though, Wife reinstates it when Husband begins seeing another woman.  During the renewed divorce litigation, Wife asserts that the martial residence now belongs to her alone.  Tennessee Court of Appeals: Although “the writing at issue contains the components of what could become an enforceable unilateral contract[,]” Wife didn’t “drop” her divorce suit after being presented with the contract, and she also “took no action indicative of one who is claiming exclusive ownership of real property, such as paying the mortgage, the taxes, or the operating expenses on the home.”  As a result, the home was properly treated as marital property, and because Wife got a heap of liquid assets in the divorce, she doesn’t get to make Husband pay her $400,000.00 in attorney’s fees here as well.
  • Husband, a physician, consistently makes over $600,000.00 during the parties’ marriage, generally by doing clinical work on some nights and weekends to supplement his large executive salary.  After Wife files for divorce, Husband accepts a new job that pays him a mere $320,000.00 annually.  He also lets some certifications lapse and stops doing extra clinical work.  Husband: The trial court erred by finding I was voluntarily underemployed.  Tennessee Court of Appeals: Among other things, you specifically testified at trial that “I do not want to work like I was working before,” so what are we even doing here?
  • Reporters file public records lawsuit against Tennessee’s Department of Children’s Services after being denied records related to child who died due to suspected child abuse.  Trial Court: The records are exempt from disclosure under the Tennessee Public Records Act because they are relevant to an ongoing criminal prosecution, and the Tennessee Supreme Court has said that records related to an ongoing criminal prosecution are not subject to disclosure.  Tennessee Court of Appeals: Not so fast.  There is a completely separate and more specific provision concerning records that pertain to a child abuse or neglect fatality, which is what this case is about.  And because “the trial court did not conduct a thorough analysis of the applicability of” that separate and more specific statute, we vacate the trial court’s order and remand this case with instructions to do that.  [Editorial note: Shout out to friend of Horwitz Law, PLLC Paul McAdoo for the win.]
  • Landlord files detainer warrant against Tenant.  Landlord ends up winning summary judgment, in part because tenant (who represents himself pro se) doesn’t respond to Landlord’s statement of undisputed material facts, which is a surefire way to lose.  Tenant appeals, though his brief is noncompliant.  Tennessee Court of Appeals: There is no error here anyway.  “[A] trial court may consider statements of fact admitted when a non-moving party fails to respond to the moving party’s statement of material facts[,]” and Tenant failed to respond.  Because there is a mandatory fee-shifting provision in the parties’ contract, Tenant gets to pay Landlord’s attorney’s fees and costs incurred on appeal, too.
  • Husband appeals entry of order of protection against him, asserting that he didn’t do the abuse and that venue was improper.  Tennessee Court of Appeals: The trial court found Wife more credible, and we basically never disturb credibility findings like that on appeal.  Further, because there is no indication that Husband objected to venue below, that claim is waived.
  • Tennessee inmate files a “petition for a writ of certiorari and mandamus” (it is not clear from the opinion what relief he is seeking or why).  “On May 9, 2023, the trial court entered an Order Granting Respondents’ Motions to Dismiss and Denying Petitioner’s Writ of Certiorari and Mandamus.”  According to the Court of Appeals, the inmate then filed an untimely “notice of appeal to this Court on February 23, 2023,” which definitely has a typo in it somewhere and presumably should read “February 23, 2024.”  Tennessee Court of Appeals: Missing an appeal deadline deprives us of jurisdiction, so we catapult this appeal into a volcano.
  • Conservator litigation (groan) results in complex questions about the transfer of appellate and trial court jurisdiction following an accelerated appeal of a denial of a motion to recuse (yay!).  Tennessee Court of Appeals: Although an accelerated recusal appeal does not automatically stay trial court proceedings, because we granted a stay after the first recusal appeal in this case, the trial court was divested of further jurisdiction to rule on anything else until the appellate mandate issued.  As a result, a bunch of orders that the trial court entered between the issuance of our stay and the issuance of our mandate are vacated as void for lack of subject matter jurisdiction.
  • Woman slips and falls while entering a store on a rainy day.  She files a premises liability claim but loses on summary judgment after the Trial Court finds there is no evidence of a dangerous condition.  Tennessee Court of Appeals: All of Woman’s evidentiary arguments are waived because she didn’t present them below, and the rest of her brief isn’t responsive to what the trial court ruled.  Thus, because “[w]e have repeatedly held that an appellant’s failure to craft a more-than-skeletal argument that is actually responsive to the trial court’s ruling may result in waiver on appeal,” and because Woman “has failed to address the actual basis of the trial court’s ruling,” her appeal is doomed.
  • Mother of an incarcerated person sues Most Heinous Company On The Planet based on injuries she claims she sustained after a chair in the jail’s visitation room collapsed as she sat in it.  CoreCivic discards the broken chair, permanently “misplace[s]” the incident report regarding the matter, and also doesn’t keep the video footage.  Trial court declines to issue spoliation sanctions and grants summary judgment to CoreCivic, though.  Tennessee Court of Appeals: The orders denying spoliation sanctions were within the trial court’s discretion, given that there were justifiable reasons to discard the chair, there was evidence the incident report was misplaced non-deliberately, and CoreCivic didn’t realize it was going to be sued at the time it failed to preserve the video.  There also isn’t adequate evidence “from which a fact finder could reasonably infer that a dangerous or defective condition existed in the chair in which [Mother] sat on the day of the accident.”  So the trial court’s order dismissing the case is affirmed.
  • Pro se litigant who sued his former attorney for legal malpractice appeals both the denial of his motion for default and the dismissal of his motion for summary judgment.  Tennessee Court of Appeals: You have to give the other side notice to get a default judgment, which you didn’t do.  You also didn’t file a statement of undisputed material facts with your motion for summary judgment, which—although waivable in a trial court’s discretion under certain circumstances—is otherwise a mandatory requirement.  So the trial court’s judgment is affirmed, and because you haven’t appealed the summary judgment order that was entered against you, that stays in place, too.
  • Pro so litigant appeals non-final order.  Tennessee Court of Appeals: Can’t do that outside of narrow circumstances not present here, so the appeal is dismissed without prejudice to refiling after a final judgment enters.
  • Tennessee Court of Appeals, in non-text-searchable opinion issued as part of premises liability week: Trial courts “cannot raise issues sua sponte when granting summary judgment except in ‘rare cases and with meticulous care,’” and since the trial court non-meticulously raised issues sua sponte when granting summary judgment here, its summary judgment order is vacated.
  • Two neighbors share an easement—a gravel road used for ingress and egress.  After a decade, one neighbor becomes “convinced that part of the road was on his property[,]” “[s]o, using a ‘scraper blade,’ he removed the gravel from the offending section of the road and built an alternate route.”  It turns out he’s wrong about the property line, though.  Tennessee Court of Appeals: We find no reason to disturb the trial court’s credibility-based finding that the plaintiff in this 14-year-old (!!!) litigation “was damaged when his neighbor unilaterally replaced the existing road with a poorly built alternative in a different location.”  The defendant also cannot complain about the Plaintiff’s missing ad damnum for the first time on appeal (and fourteen years late).  The costs of a court-appointed surveyor were also allowable expert witness expenses, not non-compensable discretionary costs.  The trial court’s unexplained permanent injunction—which it issued despite the Plaintiff never having requested one—is vacated as improper, though.

Firm Highlights

Congratulations to Horwitz Law, PLLC client Scott Wilson!  As summarized in the first case above, Dr. Wilson found himself saddled with two bogus criminal contempt convictions following petty, privately-pursued criminal proceedings arising from two conflicting trial court orders.  The case is even worse than that, though; it had extraordinary notice defects—his own lawyer didn’t even know it was a criminal trial until minutes before it started—and the complainant failed to establish any element of her claims, including by failing to introduce either of the two orders at trial.  Dr. Wilson is now acquitted, though, so his record is clear and due to be expunged shortly.  Read Dr. Wilson’s Principal Brief and Reply Brief, or watch the oral argument here: https://www.youtube.com/watch?v=e6xWd5FvAJU