November 23–November 29, 2024

  • Construction company and its principal falsely represent that a store renovation they were hired to complete would be completed in time for the new store’s opening, fail to finish the work in time for the store to open, charge extra for fixing their own mistakes, demand payment for a builder’s fee they agreed to waive due to all their screw-ups, and can’t adequately account for approximately $5,000.00 worth of missing tile, among other bad behavior.  Afterward, the swindled store owner creates a website—www.KedaloConstructionScam.com—recounting her experience.  Naturally, the misbehaving construction company and its principal decide to…sue “for defamation, defamation by implication, false light, and violation of the Tennessee Consumer Protection Act.”  Store owner petitions to dismiss the SLAPP-suit under the Tennessee Public Participation Act, which the trial court takes two years to deny, without explanation, on a ground that was never even contested.  Tennessee Court of Appeals, in an interlocutory TPPA appeal: Reversed.  The Plaintiffs never disputed that the store owner met her initial burden under the TPPA, so the trial court had no basis for finding otherwise.  The trial court also erred by allowing the Plaintiffs—in obvious violation of the TPPA’s “five-days-before-hearing” rule—to introduce new evidence after the TPPA hearing ended.  And although we aren’t going to reassign this case on remand as requested, “we do . . . caution the trial court that cases must be moved along as expeditiously as possible,” rather than ignored for months at a time and then adjudicated incompetently and without reasoning based on issues that aren’t even disputed.  (This is a Horwitz Law, PLLC case.)
  • Plaintiff files SLAPP-suit against multiple Defendants.  Like similar plaintiffs, after running up litigation expenses, Plaintiff attempts to evade accountability by nonsuiting before the resulting TPPA hearing.  But one Defendant had filed a motion for summary judgment in conjunction with his TPPA petition—a TPPA litigation strategy that your summarist pioneered back in 2020—so the trial court declines to enter the nonsuit as to that Defendant, because a pending motion for summary judgment precludes a nonsuit.  The trial court does deny that Defendant most of its attorney’s fees after granting that Defendant’s TPPA petition, though, so everyone appeals.  Tennessee Court of Appeals: Based on the Tennessee Supreme Court’s recent decision in Flade [editorial note: too soon], the Plaintiff was entitled to evade accountability as to all Defendants except for the one who had a pending motion for summary judgment.  The Plaintiff was not allowed to escape the summary judgment exception as to that Defendant by offering to nonsuit with prejudice, either: a procedural device called “retraxit” that Tennessee law does not recognize.  The trial court judge—whom your summarist just described in last week’s Intermediate Scrutiny newsletter as “oft-reversed”—erred by denying that Defendant most of his attorney’s fees, though, so we reverse him yet again.
  • Allegation: Before he died, Decedent promised me—his Stepchild—a portion of his twenty-acre property if I helped him clear and build on the land.  So I helped him clear the land and lived openly on my portion of it for almost thirty years.  Afterward, though, Decedent never conveyed any portion of the land to me either by deed or will, so I’m entitled to the land on an adverse possession theory, or alternatively, based on Decedent’s breach of an oral trust or breach of contract.  Trial Court: Dismissed entirely.  Tennessee Court of Appeals: The adverse possession claim fails because “[c]onstruing the complaint liberally and giving [Stepchild] the benefit of all reasonable inferences leads to the conclusion that [Stepchild’s] possession was permissive, not adverse.”  But the statute of frauds “does not prohibit creation of an oral trust,” and at this stage, the complaint’s “allegations are sufficient to raise the possibility that equitable estoppel may apply,” so two claims survive.
  • After funds that were required to be placed in one trust are instead placed in another, trust protectors petition Trial Court to hold trustee in civil contempt and order the funds transferred.  Trial Court grants the petition, and trustee appeals.  Two-thirds of a Tennessee Court of Appeals panel: “Retaining supervision of the trust does, in a very real and practical sense, incorporate the trust into the court’s order,” so the contempt judgment is affirmed.  There also is no Full Faith and Credit problem here, since “no one is challenging  . . . the validity of [another state] court’s decision.”  Judge McBrayer, dissenting: “The language of the [court’s] order simply does not provide notice of the terms of the Tennessee Trust or the obligations of the trustee that will be enforced by the court’s contempt power. Thus, the necessary specificity is lacking.”  And a host of statutory remedies “make fully incorporating the terms of a trust into a court order unnecessary” anyhow.
  • City of Memphis chronically fails to test thousands of rape kits for decades—a fact that is revealed during a pair of 2013 media disclosures.  The disclosures result in a class action filed by three class representative plaintiffs whose individual claims are later dismissed, either voluntarily or due to statute of limitations issues.  Afterward, plaintiff Janet Doe seeks to represent the class instead, which the trial court permits.  The trial court later denies the City’s motion for summary judgment, which sought dismissal of Ms. Doe’s claims on statute of limitations grounds.  Tennessee Court of Appeals, on a Rule 9 interlocutory appeal: And that was error.  The Tennessee Supreme Court has rejected cross-jurisdictional class action tolling, though there is “another form of class action tolling ‘known as intrajurisdictional tolling, which tolls statutes of limitations within the same court system during the pendency of a class action for potential members of the class.’”  And while “we agree with Ms. Doe that our Supreme Court may be open to the idea of adopting an intrajurisdictional tolling rule,” it would not apply to cases involving Tennessee’s Governmental Tort Liability Act, because the Tennessee Supreme Court has made clear that Governmental Tort Liability Act plaintiffs must always lose because “application of the rule would effectively expand the 12-month statute of limitations in Tenn. Code Ann. § 29-20-305(b).”  Thus, Ms. Doe’s individual claim is time-barred, too, and for several reasons, Rule 15’s relation back doctrine does not save it.
  • Tennessee Court of Appeals, in separate appeal arising out of the same case: The trial court also failed to adequately define the class it was certifying, so its class certification decision is vacated, too.
  • Homeowners enter into contract with Homebuilder that contains an arbitration clause.  Homebuilder then initiates arbitration proceeding against Homeowners seeking an outstanding balance.  Homeowners respond by filing a lawsuit against Homebuilder claiming they were fraudulently induced into signing the underlying contract.  They later nonsuit that lawsuit, participate in the arbitration “under protest,” and then sue again after they lose.  The trial court dismisses the refiled lawsuit for lack of subject matter jurisdiction and awards Homebuilder attorney’s fees under the contract’s fee-shifting provision.  Tennessee Court of Appeals: No error here.  Although contract formation issues (like fraud claims) are generally subject to court review under Tennessee law, “by participating in arbitration to its conclusion and [unsuccessfully] raising the specter of fraud” within that proceeding, Homeowners “waived their right to have their fraudulent inducement claim adjudicated by the court.”  And courts can award attorney’s fees even when they lack subject matter jurisdiction, so no error there, either.
  • Blind woman who walks with a service dog rides the bus.  She asks to be dropped off at a “courtesy” (unscheduled) stop; instead, the bus driver drops her off at a regularly scheduled bus stop.  Afterward, the woman exits the bus (safely) but falls after missing the curb, fracturing her ankle.  She then sues for negligence but has her claim dismissed on a motion for summary judgment.  Tennessee Court of Appeals: Because “there is a lack of evidence showing a nexus between [bus driver’s] conduct . . . and Ms. Roberts’s fall” and “there simply is no proof that [woman’s] fall was caused by [bus driver’s] actions or inactions,” the trial court’s judgment is affirmed.
  • Judgment Debtor seeks to raise equitable estoppel defense following Tennessee Court of Appeals remand.  The trial court refuses to consider the defense, and Judgment Debtor appeals.  Tennessee Court of Appeals: “A remand ‘may be made for a specific purpose, or it may be open and general.’”  Here, our previous remand was made for a specific purpose (determining how interest should be calculated and how payments should be applied), so “the trial court was limited to that purpose and properly declined to accept further evidence on whether equitable estoppel barred enforcement of the judgment.”  Thus, the trial court’s judgment is affirmed.  There’s also a footnote for nerds that explains that “[w]hile the mandate rule binds the trial court, the law of the case doctrine is discretionary for the appellate court” and, thus, “[a]n appellate court may reconsider an issue decided in a prior appeal under three limited circumstances. . . .”

Firm Updates

Congratulations to Horwitz Law, PLLC client Linda Ward!  After Ms. Ward’s hellish experience with a no-good, very-bad contractor ended with her being victimized by a SLAPP-suit, Ms. Ward is now one step closer to bringing the abuse to an end based on the Tennessee Court of Appeals’ unanimous decision in her favor this week (your first case above).  Three cheers for speakers who are willing to stand up for themselves and defend the First Amendment at significant personal cost.