May 24–May 30, 2025

  • Pro Se Litigant chronically violates discovery orders.  Eventually, the trial court sanctions Pro Se Litigant by dismissing his complaint without prejudice.  After the trial court announces that ruling, but before its written dismissal order enters, Pro Se Litigant moves to recuse the trial court judge.  The dismissal order is entered while the motion to recuse is pending, but the motion to recuse is later denied.  Pro Se Litigant then appeals everything.  Tennessee Court of Appeals: No error here.  “[T]here was clear pattern of delay while [Pro Se Litigant] flouted the trial court’s reasonable orders. We therefore cannot conclude that the trial court abused its discretion in imposing the harshest sanction of dismissal under the circumstances of this case.”  [Editorial note: Dismissal without prejudice can hardly be characterized as “the harshest sanction” available, and it arguably is not even a sanction at all.]  Further, “this Court has repeatedly held that section 1.02 of Rule 10B does not prohibit a judge from entering an order on a previously decided issue while a motion to recuse is pending”: a determination that we say confirms that “the clear weight of authority” supported the trial court’s action here.  [Second editorial note: The authority holding that trial courts may enter earlier-announced orders while a motion to recuse is pending is persuasive only, and given that the rule states explicitly that “[w]hile the motion is pending, the judge whose disqualification is sought shall make no further orders and take no further action on the case, except for good cause stated in the order in which such action is taken[,]” it is both atextual and wrong.]  Thus, we affirm, and for these and other reasons (like Pro Se Litigant’s major briefing deficiencies and his unspecified claims that the trial court committed crimes), we hold that this appeal is frivolous and award appellate fees as a sanction.
  • Tennessee Court of Appeals: Speaking of which, we hold differently (albeit in a non-citable case) that motions to recuse actually do need to be adjudicated before entering further orders, and failure to abide by that rule will result in further orders being vacated.
  • Tennessee Court of Appeals: Taking yet another approach to the same order-entered-while-motion-to-recuse-is-pending issue, we consider the arguable violation of section 1.02 of Rule 10B “moot” given that we have affirmed the trial court’s denial of a litigant’s motion to recuse.
  • Tennessee Court of Appeals: In this otherwise unremarkable accelerated interlocutory appeal of the trial court’s denial of a pro se litigant’s motion to recuse, we include some interesting discussion of the “personal knowledge” requirement that governs declarations in Tennessee and ultimately affirm the trial court’s denial based on pro se litigant’s failure to “affirmatively state that [his motion for recusal] is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”  After all, “When ‘shall’ is used in a rule, like it is section 1.01 of Supreme Court Rule 10B, the rule’s requirements are mandatory.”  But see the three cases right above this one.
  • Tenant’s lease requires Tenant to obtain fire insurance for his portion of the leased building.  Tenant fails to do so, and after the building burns down, Landlord sues Tenant for damages.  In defense, Tenant raises an impossibility defense, arguing that it was impossible to obtain fire insurance for only a portion of a building.  Trial court grants summary judgment to Tenant on this theory, and Landlord appeals.  Tennessee Court of Appeals: One expert attested “that it was not possible to obtain fire insurance on only a portion of a building[,]” while another attested “that [Tenant] could have obtained fire insurance on only a portion of the building.”  That is what we call a “dispute of material fact,” which precludes summary judgment.  Furthermore, “the doctrine of impossibility of performance is not applicable where performance becomes impossible due to factors which should have been foreseen and provided against[,]” and since it was Tenant’s burden to negate the application of that rule, the trial court’s summary judgment ruling must be reversed for that reason, too.  For the second week in a row, we also deny frivolous appeal fees to an appellee who raised a frivolous appeal claim and then lost the appeal on multiple grounds.
  • Billboard Company files declaratory judgment action against the City of Pigeon Forge over sign ordinance restrictions that Billboard Company contends are unlawful.  The trial court dismisses Billboard Company’s complaint on the basis that Billboard Company should have filed a petition for a writ of certiorari instead.  Billboard Company appeals.  Tennessee Court of Appeals: Reversed.  “[Billboard Company] has properly alleged a claim for declaratory judgment in its complaint because [Billboard Company] has challenged the validity of the ordinances rather than any quasi-judicial or administrative application of an ordinance. . . .  Furthermore, inasmuch as [Billboard Company] has presented questions of law regarding the validity of the ordinances, [Billboard Company’s] decision not to pursue administrative remedies did not preclude its declaratory judgment action[,]” because “‘[t]he exhaustion of an administrative remedy is not required when the party seeking judicial review presents questions of law rather than questions of fact.’”  So we reverse and remand with instructions to adjudicate Billboard Company’s claims.
  • Tennessee Court of Appeals: A word to the wise—if you file a post-judgment motion to alter or amend three days late, then your untimely motion will not toll your appeal deadline, and your resulting appeal will be dismissed for lack of subject matter jurisdiction.
  • Tennessee Court of Appeals: We also renew our constant reminders to trial courts that, when findings are required but a trial court’s “findings are not specific enough that we can determine ‘why and how it reached a decision,’” we generally are going to vacate and remand.  As a fun fact, there’s also a specific rule of civil procedure that governs cases, like this one, where a judge who presided earlier in a case cannot finish a hearing.
  • Lawsuit between neighbors alleges that a disconnected septic system is causing an actionable nuisance by leaching e-coli-laden wastewater onto plaintiffs’ property.  Trial court, on summary judgment: No evidence of that, so the case is dismissed.  Tennessee Court of Appeals:  Agreed.  “Appellants have the burden to show that an ongoing nuisance exists because the sewage disposal system, despite being dismantled, continues to leach e-coli-laden wastewater onto Appellants’ property. From our review, aside from the averments made in the complaint and in [one party’s] own declaration, Appellants have not provided any proof to support their contention.  In contrast, [Appellee] has provided evidence to support her position that there is not a continuing nuisance on the Appellants’ property caused by any remaining problems with the septic system.”  So we affirm.
  • Tennessee Court of Appeals: In this otherwise unremarkable appeal between pro se family law litigants, we note that attorney ghostwriting of briefs without disclosure is not kosher, and “pro se litigants are not entitled to attorney’s fees.”  If we learn you have an attorney ghostwriter, you won’t get the additional deference we afford to pro se litigants, either.
  • Tennessee Court of Appeals: Tennessee enforces “the locality rule” in medical malpractice cases, which requires a medical expert attesting to professional malpractice to “demonstrate that he or she has a modicum of familiarity with a particular community or a similar one.”  Here, the plaintiff proffered an expert whose “experience within the health care system does not demonstrate any level of familiarity with Jackson or a similar community[,]” so “we cannot say the trial court abused its discretion when it excluded” the plaintiff’s expert.  And because the plaintiff’s case hinged entirely on its expert’s excluded testimony, we affirm the trial court’s summary judgment order dismissing the plaintiff’s complaint.

Firm Updates

For whatever reason, it is rare to see a Tennessee state trial court discovery order containing thorough reasoning and deep analysis.  No longer.  If you need Tennessee discovery authority addressing ESI issues, boilerplate discovery objections, undue burden claims, fee-shifting claims, and other common discovery matters, look no further than this extremely good order entered on Wednesday by Davidson County Circuit Court Judge Lynne Ingram, which has just about everything that you could ever want in it.