May 17–May 23, 2025

  • After Defendants complain about their HOA refusing to let them erect a wooden security fence for their disabled son, HOA Officials file a “Civil Warrant Restraining Order”—which famously is not a thing—in Blount County General Sessions Court.  Defendants petition to dismiss the HOA Officials’ SLAPP-suit under the Tennessee Public Participation Act; afterward the trial court denies the Defendants’ TPPA petition without an adequate explanation, sees its order vacated in a first appeal back in 2023, and is ordered by the Court of Appeals to enter a denial order that contains adequate findings.  On remand, HOA Officials file a notice of nonsuit and insist that the trial court need not comply with the Court of Appeals’ mandate as a result.  The trial court agrees, enters the HOA Officials’ proposed nonsuit order, and Defendants appeal.  Tennessee Court of Appeals: Reversed again.  The trial court lacked discretion to treat our mandate as “nonbinding,” and plaintiffs cannot interfere with TPPA petitioners’ vested statutory right of appeal by nonsuiting after a TPPA petition has been adjudicated anyway.  So the trial court’s decision is vacated—again—with instructions—again—to do what we told it to do some two years ago.  We also deny HOA Officials’ request for frivolous appeal sanctions on account of the fact that HOA Officials lost this appeal spectacularly on multiple grounds.  [Editorial note: If you are going to send a bumptious threat letter warning that: “If you proceed with this appeal, we will be seeking reimbursement of our attorney’s fees and costs related to this frivolous appeal, something that I have never asked for before in over 40 appeals, but that I will certainly do under these particular circumstances.  Don’t make this worse for you and your client than it already is[,]” then you had better be right that the appeal is frivolous.]  (This is a Horwitz Law, PLLC case.)
  • Passenger in a van is rear-ended by a Shelby County Sheriff’s Deputy in a relatively low-speed accident that nevertheless results in Deputy’s car being towed away from the scene.  Passenger presents to hospital with significant neck and shoulder pain; one month later, she is diagnosed with a rotator cuff tear that requires surgery to repair.  Shelby County stipulates to liability at trial but contests damages.  Just before trial, trial court judge discloses her child’s close childhood friendship several decades ago with Shelby County’s attorney.  After trial, trial court finds that Passenger’s rotator cuff injury was not caused by the accident.  Passenger then files a motion to recuse, which the trial court denies, and Passenger appeals.  Tennessee Court of Appeals: The fact that Passenger strategically waited to file her recusal motion warrants denying it by itself, but even if that weren’t the case, “we conclude that the childhood friendship between [trial court judge’s] son and counsel for Shelby County over thirty years ago does not warrant recusal in this case.”  The trial court’s causation finding is reversed, though, given the trial court’s clear errors in assessing Passenger’s medical records and the absence of any conflicting testimony.  “So, we conclude that the trial court’s related factual finding as to causation is clearly erroneous, even if it was based on an implicit credibility determination[,]” and remand with instructions to “determine the amount of damages to be awarded in relation to the shoulder injury.”
  • Carrying on their longstanding tradition of collecting premiums and then denying claims, two Insurers file dueling declaratory judgment actions asserting that they have no initial obligation to defend and indemnify their Insured.  At issue: Both Insurers’ policies are “excess” insurance policies that say, generally, they have no coverage obligations to their Insured until primary coverage is exhausted.  Tennessee Court of Appeals: “If we were to . . . give effect to each of these . . . clauses, we would be required to conclude that neither policy provided primary coverage. But that would be a logical impossibility since, quite obviously, there can be no excess insurance absent a policy providing primary coverage and, in the absence of such other policy, each would be primary. To give effect to the excess clause in either of the policies would defeat the similar provision in the other and it follows, therefore, that the excess clauses operate to cancel out each other, both coverages must be treated as primary and each company is obligated to share in the cost of the settlement and the expenses.”  Thus, “the duty to defend and indemnify [Insured] in the premises liability action must be prorated” between the two Insurers.
  • Without following the state rulemaking process, TennCare—the State of Tennessee’s Medicaid program—adopts administrative rules that impose lower Medicaid reimbursement rates for emergency services than State law otherwise contemplates.  A hospital system sues, wins an order invalidating the rules, and the State appeals.  On appeal, the State argues that the lower reimbursement rate is compelled by federal preemption and that it otherwise had cost-cutting authority to impose the reduction.  Tennessee Court of Appeals: “[T]he fact that the payment methodologies . . . for which TennCare sought [federal] approval violate the [relevant State statute] undermines, rather than supports, the federal approval on which TennCare relies” for its federal preemption argument, since “[the federal government] may only approve [state plan amendments] proposed to it by a state, and [the federal government] has no authority to change State plans on its own.”  The Tennessee statute that affords the State broad cost-cutting authority does not matter here, either; “the two statutes [are] not mutually exclusive, and . . . TennCare was not prevented ‘from complying with the mandates of the State [reimbursement rate statute] despite its authority to implement cost-control measures.”  So the trial court’s judgment voiding the rules is affirmed, and based on the same reasoning, the State loses a related appeal, too.
  • Condo Owners sue their HOA to inspect its corporate records.  The trial court grants summary judgment to Condo Owners in an order that states in full: “Having considered Plaintiffs’ Motion, the Defendant’s Response, and the arguments of counsel, it is hereby ordered that Plaintiffs’ Motion for Summary Judgment is hereby GRANTED[,]” and HOA appeals.  Tennessee Court of Appeals: This ain’t it, chief.  Summary judgment orders require things like “findings as to the contested issues,” and the trial court’s order “does not contain any findings of fact or conclusions of law” to enable our review.  So we vacate and remand to the trial court to do its job.  Given the simplicity of this case and the fact that what is at issue is clear from the argument section of the HOA’s brief, we also do that even though the HOA deficiently fails to include a Statement of Issues for our review as a required.
  • Tennessee Court of Appeals: “[E]xplicit findings of fact and conclusions of law” are required to support deviations from child support guidelines, too, and a trial court’s failure to include them in its order will result in that order being vacated.
  • Tennessee Court of Appeals:  “[T]he trial court’s duty to make findings of fact and conclusions of law pursuant to Rule 52.01” also is required in child custody disputes.  Come on, guys.
  • Contractor purchases construction materials from Supplier, then fails to pay for the materials.  Supplier sues to recover payment and moves for summary judgment.  Based on a contract provision that states “[Contractor] must make any claims for billing errors or adjustments to [Supplier] in writing within ten (10) business days from the invoice date.  Claims not received in writing within such period of time will be waived by [Contractor],” Contractor opposes summary judgment using only an affidavit that states: “I believe that [Contractor] provided notice to [Supplier] of the inaccurate and disputed invoices within a reasonable time of learning of the improper charges.”  Trial court grants Supplier summary judgment, and Contractor affirms.  Tennessee Court of Appeals: The affiant’s statement of “belief” is useless, hypothetical evidence that is insufficient to create a disputed fact and withstand summary judgment, so we affirm.  Supplier gets it attorney’s fees on appeal under the fee-shifting provision of the parties’ contract, too.

Firm Updates

Congratulations to Horwitz Law, PLLC clients Joshua and Leah Debity, whose SLAPP-suit saga—the subject of the first case noted above—continues, eventually enabling them to recover the significant legal fees they expended defending themselves.  This also makes eleven straight Tennessee Court of Appeals wins as appellant for the Horwitz Law, PLLC team dating back to 2023, which you are not allowed to mention means that we’ve been getting kyboshed by a lot of erring trial courts.  [Pre-2020 Vandy announcer voice: “The streak continues!”]

And three cheers for Horwitz Law, PLLC client Morgan Armstrong, a high school senior who has bravely sued her high school for both disciplining her following a coming-out post and threatening to withhold her diploma and sabotage her college admissions process if she didn’t shut up.  Despite explicitly threatening, in writing, that: “If the above are not adhered to, Morgan Armstrong’s diploma will be withheld and not mailed on June 15, 2025,” within days of Morgan filing what it called an “alleged lawsuit,” Tennessee Christian Preparatory School announced to the media (while refusing to answer questions) that it “remains fully committed to delivering Morgan Armstrong’s diploma.”