March 9–15, 2026

Intermediate Scrutiny—a Tennessee Court of Appeals blog—is a snappy weekly newsletter from Tennessee appellate attorney Daniel A. Horwitz summarizing the week’s decisions from the Tennessee Court of Appeals.  To subscribe, click here.  Past newsletters can be found here.

  • Father declines to pay child support or alimony as required by the Parties’ marital dissolution agreement, so Mother sues him.  Afterward—but before the court enters a judgment—Father pays what he owes.  Is Mother the “prevailing party” under these circumstances—a determination that governs whether Mother is entitled to an attorney’s fee award?  Tennessee Court of Appeals: Based on Horwitz Law’s smashing Tennessee Supreme Court victory in Colley v. Colley last year, the answer is yes.  Thus, Mother gets her attorney’s fees for prosecuting the child support and alimony claims.  [Editorial note: This case—which involves a plaintiff getting what she wanted after suing—goes a step beyond Colley, which involved a defendant successfully defending against an attempted modification.  It is, in essence, a blessing of the catalyst theory of prevailing party status, which federal courts do not permit but Tennessee courts have allowed on a handful of occasions.]
  • Music Publisher sues Musician for breach of contract. The case settles during bankruptcy proceedings, with Music Publisher securing ownership rights to a subset of Musician’s songs. Music Publisher then contacts a licensing agency and claims that it owns more songs than the settlement actually provided.  Afterward, Music Publisher sues Musician again, and Musician counterclaims for tortious interference.  Music Publisher then petitions to dismiss Musician’s counterclaim under the Tennessee Public Participation Act, and the trial court denies the petition. Tennessee Court of Appeals:  Affirmed.  We are going to treat the counterclaim strictly as being about commercial speech.  And “[w]hatever the precise metes and bounds of commercial speech, if the commercial speech is false, deceptive, or misleading, or proposes an illegal transaction, then it is outside the protective shield of the First Amendment.”  Here, “[a]t a minimum, [Music Publisher’s] list of songs it claimed ownership over included songs as to which it did not have an ownership interest[,]” so we find its speech unprotected even considered in the light most favorable to it.  Thus, Music Publisher’s TPPA Petition was properly denied at the TPPA’s first step.  No attorney’s fees for frivolity, though; “[t]he issues presented in connection with the TPPA petition in this case involve complex legal matters[,]” and there has not been any showing that it was filed for purposes of unnecessary delay.  [Editorial note: Congratulations to friend of Intermediate Scrutiny Rob Peal for the long-awaited win.]
  • Losing Litigant—who is represented by an attorney with an impressive history of missing case deadlines—appeals an adverse trial court judgment.  Tennessee Court of Appeals: But the appeal was filed several days late, which means we lack jurisdiction to consider it.  So the appeal is dismissed.  No frivolous appeal damages, though.
  • Two men enter into an oral agreement regarding commercial property in LaVergne, though the terms of that agreement are disputed.  At any rate, one man contributes the down payment (which his corporation uses to purchase the property), and the other personally guarantees the loan and pays the mortgage for a decade.  When the property later sells for $1.6 million, the man who made the down payment refuses to share the proceeds.  After trial, the trial court awards the other man $531,236.21 (reflecting 50% of the corporation’s interest in the sale).  Tennessee Court of Appeals: Affirmed. The gravamen of the claim is about an oral agreement, rather than a claim about an implied partnership, so the standards are lower.  And “we infer” from the trial court’s order that the trial court credited the Plaintiff’s testimony about the content of that oral agreement over the Defendant’s, so we affirm.
  • Pro Se Litigant is involved in years-long litigation with HOA.  During the litigation, Pro Se Litigant makes a series of incoherent claims and assertions of impropriety, and he also attempts to add the trial judge as a party.  He loses everything and then appeals everything.  Tennessee Court of Appeals: Sans the suing judges part, all of these patterns continue here.

Firm Updates

We were back in the Tennessee Court of Appeals ourselves this week for a special argument setting held at Belmont College of Law.  Check out the oral argument here: https://www.youtube.com/watch?v=v6L8jhDlXxQ.