May 10–May 16, 2025
- Widely Disliked Tennessee Lawyer serves as plaintiff in a Tennessee Adult Protection Act (elder abuse) case. The case involves two competing wills: a 2016 will that leaves Decedent’s estate to a local animal shelter, and a 2020 will that leaves Decedent’s estate to an Acquaintance. Only the 2016 will is (so far) admitted to probate; afterward, the attorney of record for the Decedent’s estate pursues claims against Acquaintance related to Acquaintance’s use and disposition of Decedent’s property. After being served, Acquaintance—who is represented by counsel—does not file an answer for over a year (though Acquaintance does answer just before a motion for default is heard). The trial court enters a default judgment against Acquaintance for willful delay, holds a damages trial, and, at plaintiff’s behest, enters a judgment for the plaintiff that exceeds the demands of his complaint. Afterward, Acquaintance appeals. Tennessee Court of Appeals: When a default judgment is entered, it cannot be set aside on “excusable neglect” grounds if the precipitating conduct was “willful.” And here, the trial court found a willful failure to respond—a factual finding that we decline to overturn because “errors of counsel are attributable to the client.” But that doesn’t mean that Widely Disliked Tennessee Lawyer was permitted to obtain relief broader than what his complaint requested. Thus, both the trial court’s “declaration that the 2020 Will was void” and its order to sell the Decedent’s house are vacated.
- Health Care Liability Act (medical malpractice) Plaintiff files lawsuit against Medical Providers. Alas! The affidavits appended to the Plaintiff’s complaint contain only unsigned medical authorizations, even though the Plaintiff was required both to send signed authorizations and prove that she did. Plaintiff asserts, in response to Medical Providers’ motions to dismiss, that she sent signed authorizations, though: a claim that is bolstered by one Medical Provider’s concession, during the resulting motion-to-dismiss hearing, that it received a signed authorization. The trial court dismisses the Plaintiff’s Complaint for failure to establish compliance with the HCLA’s pre-suit notice requirements anyhow, and the Plaintiff appeals. Two-thirds of a Tennessee Court of Appeals Panel: Reversed with instructions to hold an evidentiary hearing on whether the Medical Providers received signed authorizations. “Because [one Medical Provider’s] counsel admitted at the hearing that [his client] received a signed medical authorization, he acknowledged that [his client] was not prejudiced by [Plaintiff’s] failure to attach the signed medical authorization to the complaint.” And that “prejudicial concession” alone is enough to merit “remand[ing] this action to the trial court to hold an evidentiary hearing to consider whether other [Medical Providers] received the signed medical authorizations with the pre-suit notice.” Concurrence: The statute expressly states that “[t]he court may require additional evidence of compliance to determine if the provisions of this section have been met,” so remanding here is perfectly appropriate. Also, disputes like this should really be resolved at the summary judgment stage, not the motion to dismiss stage. Relatedly, “[s]hould the law of Tennessee really be that we prefer to adjudicate cases on their merits only if they are not health care liability cases?” Dissent: The Medical Providers’ observation that the proof of compliance appended to the Plaintiff’s Complaint was deficient shifted the evidentiary burden to the Plaintiff to prove that she substantially complied with the HCLA’s pre-suit notice requirements. “Defendants have no obligation to aid plaintiffs in meeting” that burden. And because, in response to the Medical Providers’ motions to dismiss, the Plaintiff “failed to file any additional documents to meet her burden and instead sought to ‘rest upon the mere allegations . . . of [her] pleading,’ I believe that the trial court properly granted the defendants’ respective motions to dismiss.” [Editorial note: That sure sounds an awful lot like how motions for summary judgment are adjudicated—not how motions to dismiss are supposed to be adjudicated—so your summarist is with the concurrence here.]
- Woman files Tennessee Governmental Tort Liability Act negligence claim alleging that, following serious failures by the Memphis Police Department, she was preventably raped by a man with outstanding warrants. [Unrelated note: The Memphis Police Department also maintains its incompetence afterward, thereby enabling Woman’s rapist to kidnap and murder a schoolteacher in one of the most high-profile crimes of 2022.] Trial court finds that Woman adequately pleaded negligence, but it dismisses her complaint based on Tennessee’s common-law public duty doctrine (discussed in some length here). Tennessee Court of Appeals: Affirmed. “The duties alleged in the complaint—to protect a citizen from harm and to arrest a suspected criminal—are public duties” not owed to anyone specifically, so police are immune from liability based on their failure to carry them out. And since that “obsolete” common law doctrine is not our fault, any complaints about it should be directed to the Tennessee Supreme Court. [Editorial note: Though irrelevant to the outcome, this case deepens a procedural split of panel authority. Compare id. (“[O]nce a judgment dismissing a case has been entered, the plaintiff cannot seek to amend [its] complaint without first convincing the trial court to set aside its dismissal[,]” with Justice v. Nordquist, No. E2020-01152-COA-R3-CV, 2021 WL 2661008, at *1 (Tenn. Ct. App. June 29, 2021) (“Defendant filed a motion to dismiss, but never filed a responsive pleading to the original complaint. The Trial Court granted Defendant’s motion to dismiss. Before time for appeal expired, Plaintiff filed an amended complaint as he was entitled to do under Tenn. R. Civ. P. 15.01 given that Defendant never filed a responsive pleading to the original complaint.”).
- Tennessee Court of Appeals: Despite pro se litigant’s “valiant effort to make appropriate references to the record,” she ultimately fails to do that (or comply with multiple other briefing rules) successfully, so her appeal is dismissed based on rules noncompliance. We also include multiple passive-aggressive citations to a recent Tennessee Supreme Court decision reversing us for dismissing an appeal based on an appellant’s failure to comply with briefing rules.
Firm Updates
Congratulations to Horwitz Law, PLLC client Sarah Powell, whose Tennessee Public Participation Act (anti-SLAPP) petition to dismiss her abusive soon-to-be-ex-husband’s SLAPP-suit was granted in full last week! Add it to the list.
And congratulations to your mettlesome summarist! Following a lengthy battle with the Middle District of Tennessee and its four judges over whether they have lawful authority to forbid essentially all attorney speech, including speech critical of the government and its contractors, the judges have thrown in the towel and abruptly repealed their local attorney gag rule. Read all about it: https://ij.org/press-release/victory-tennessee-court-scraps-attorney-gag-order-rule-following-federal-lawsuit/. Extra special thanks to the Institute for Justice (and lawyers Jared McClain and Benjamin Field) and the Southeastern Legal Foundation (and lawyers Braden Boucek and Ben Isgur) for their stellar representation. Special thanks to the Foundation for Individual Rights and Expression (FIRE) for its amicus support, too.
