September 28–October 11, 2024
- Child suffers serious injuries, requires multiple surgeries after being cut on a “broken metal pole with [] jagged edges which was allowed to remain embedded in [a] lakebed.” The pole was maintained by the State on state-owned property, so the Child’s resulting negligence claim is filed in the Claims Commission. The Claims Commissioner finds that the State had knowledge of the dangerous condition and was grossly negligent in failing to repair it or warn people about it, so he awards Child $56,893.19. Tennessee Court of Appeals: Based on one of the worst decisions ever issued by the Tennessee Supreme Court (which is saying something), “the State argues that Claimants find themselves in the proverbial catch-22, where the State is immune from a claim of negligence under the recreational use statute while also immune from a claim of gross negligence under the Claims Commission Act, and that Claimants cannot recover regardless of the State’s level of culpability. Unfortunately, we agree.” [Editorial note: I’d make a joke like “just kill me now” about how bad these opinions in tort cases against the government have gotten, but the government might actually do it, and Tennessee’s appellate courts would find a way to ensure they don’t have to pay afterward.]
- Dental-implants-gone-wrong result in Patient suing her Dentist. The trial court grants Dentist summary judgment on statute of limitations grounds, arguing that Patient had notice of her injury when she experienced pain after her procedure (which she was told was a normal side-effect). Tennessee Court of Appeals: “The record contains conflicting evidence as to when the dentures presented to [Patient] were sufficiently ‘final’ to put her on notice of a potential problem with the implants.” And “[u]ntil [Patient] was aware of facts suggesting that [Dentist] had acted wrongfully in his performance of the dental implant procedures, she did not have constructive notice of an injury for purposes of the discovery rule.” So the trial court erred in granting Dentist’s motion to dismiss, and the case is remanded.
- Man dies in a car accident, which prompts his heirs to sue for wrongful death. After settling with some other defendants, the heirs lose on summary judgment as to their claims that a Travel Center “created a hazardous condition by failing to display clearly visible signage at the ‘trucks only’ entrance of the [Travel Center’s] truck stop.” Tennessee Court of Appeals: “there is no evidence in the record that [Man] was confused by the subject sign at the time of the accident at issue,” “[n]or does the record indicate that [Man’s] view of oncoming traffic was obstructed by any structure on the [Travel Center’s] property.” So the trial court’s summary judgment ruling is affirmed.
- Decades-old dispute between a Doctor and a Medical Practice over Doctor’s retirement account devolves into litigation after several failed settlement attempts. The trial court dismisses Doctor’s claim on statute of limitations grounds, and Doctor appeals. Tennessee Court of Appeals: The rule in Tennessee is that “a defendant may revive a plaintiff’s remedy that had been barred by the running of a statute of limitations either by expressly promising to pay the debt or by acknowledging the debt and expressing a willingness to pay it.” And “[r]elative to the revival of the debt obligation, [Medical Practice] offered assurances that it would repay the debt with interest as late as April 2019.” That was less than six years before Doctor filed suit (which is the statute of limitations for breach of contract claims), so Doctor’s lawsuit should not have been dismissed.
- Tennessee Court of Appeals: Following a rare grant of a petition for rehearing, we decide that our earlier decision (featured in Intermediate Scrutiny’s September 13, 2024 edition) allowing a plaintiff to proceed with litigation against the government for damages sustained from an automobile accident allegedly caused by the washout of a road maintained by the county was wrong. So we change our mind and affirm the trial court’s dismissal of the plaintiff’s claims instead. We also designate this new opinion non-citable.
- “This appeal concerns the statute of limitations for a will contest.” Tennessee Court of Appeals: And in adjudicating it, “[w]e find no support for the proposition that whether a complaint is timely filed depends on the exact hour and minute of the day it was filed. Instead, Tennessee law deals in days when computing limitations periods.”
- Pro Se Litigant files an appeal in a delinquent tax case. Tennessee Court of Appeals: Pro Se Litigant’s “‘brief’ [i]s so deficient that it was not even recognized as such by the Appellate Court Clerk.” Thus, due to “her failure to follow the court’s briefing rules, [Pro Se Litigant] has waived her right to have this court decide her case.”
- Property Owner and Contractor sue one another over a driveway that Property Owner alleges was defective and for which Contractor would like to be paid. During litigation, Property Owner’s attorney sends an email stating: “My client has instructed me to accept your counteroffer as stated in your letter dated October 19, 2022 and agrees to pay your client the sum of $25,000.00. I will not be back to my office until October 31, 2022 and we can finalize the settlement when I return. Thanks.” Afterward, Property Owner withdraws his acceptance of the counteroffer, leading to litigation over whether the parties had an enforceable settlement agreement. Two-thirds of a Tennessee Court of Appeals panel: “[T]he communications between the parties’ attorneys contained all the material terms of the settlement, making the correspondence an enforceable contract.” That is because “[d]espite [Property Owner’s] attorney’s statement about future finalization of the settlement, the essential terms were already finalized.” Judge Bennett, dissenting: “The clear meaning” of the statement “we can finalize the settlement when I return” is that “there is more to negotiate or decide,” and release and cost terms were “critical components of the settlement left to be finalized later[;]” they were merely “‘concepts of a plan’ of settlement, if you will.”
- Following a Tennessee Supreme Court Grant-Vacate-Remand (GVR) order—an increasingly frequent thing that no one in Tennessee’s appellate litigation business appears to have acknowledged or said anything about—Tennessee Court of Appeals revisits previously unadjudicated issues in very rich husband’s criminal contempt case. Tennessee Court of Appeals: “[T]here was no statute of limitations within which Wife was required to bring her criminal contempt petitions against Husband.” [Editorial note: There’s no way that is correct.] There also weren’t any notice or ambiguity problems related to the charges involving adding Wife to and making withdrawals from the Cayman bank accounts, so to jail husband goes.
- On remand from the Tennessee Supreme Court, the Tennessee Court of Appeals is directed to consider “any pretermitted punitive damage issues consistent with” the Tennessee Supreme Court’s opinion. Tennessee Court of Appeals: And after determining the scope of the remand, we find, in order: (1) the first issue (about the trial court’s compliance with Tennessee’s punitive damages law) is waived due to skeletal briefing; (2) the second issue (about the allegedly constitutionally excessive nature of the punitive damage award) is waived due to skeletal briefing; (3) the trial court performed its role as thirteenth juror; and (4) in what is likely the most comprehensive opinion on party-prepared orders ever issued, for six reasons, there is no need to remand to the trial court to revisit a party-prepared order that the trial court adopted verbatim.
- Husband and Wife sue their Rental Boat Company under the Tennessee Consumer Protection Act. Rental Boat Company then moves to dismiss the action for improper venue, given that the Parties’ rental agreement has a forum-selection clause that required suit to be filed in a different Tennessee county. The trial court agrees with the Rental Boat Company and dismisses the suit. Tennessee Court of Appeals: And that decision is mostly affirmed. The TCPA prohibits enforcing forum-selection clauses when they require TCPA claims to be filed outside of Tennessee. But this agreement’s forum-selection clause provides for venue in Putnam County, Tennessee, which is in Tennessee. So the clause is enforceable and the suit had to be filed there, but we exercise our discretion to transfer rather than dismiss the claim, so the trial court’s order is vacated with instructions to transfer the case to Putnam County.
- While at Defendant’s residential property, Man falls down stairs that lack a code-compliant handrail. Trial court dubiously grants summary judgment to the Defendant, misapplying some elementary principles along the way. Tennessee Court of Appeals: Defendant had a duty of care and breached it. “Similarly, with respect to comparative fault, this matter is not amenable to summary judgment in view of the disputed issues of material fact.” So the trial court’s judgment is reversed, and the case is remanded for further proceedings.
Firm Highlights/Lowlights
You may have heard of the Institute for Justice, the public interest law firm that publishes the weekly Short Circuit newsletter (about decisions from the federal courts of appeal) that inspired this newsletter (subscribe here!). Anyway, IJ—along with the Southeastern Legal Foundation—represent the author of this newsletter now, and we recently sued the Middle District of Tennessee over its unconstitutional attorney speech restrictions and use of gag orders to prevent people (namely me) from criticizing a government contractor. Read all about it:
https://nashvillebanner.com/2024/10/02/gag-orders-middle-district-tennessee/
Relatedly, one of the benefits of attorneys being able to speak about their cases is that they can tell the public about civil rights violations and—in an ideal world—prevent civil rights violations from recurring by motivating the public to insist that they stop. Which Knoxville should take seriously, because on behalf of client Layla Soliz—who was illicitly forced to remove her hijab, to be photographed without it, and then had her uncovered photograph published to the public in violation of federal law, state law, and a Knoxville Sheriff’s Office policy—Horwitz Law, PLLC just sued Knox County over an obvious one: https://www.knoxvilledailysun.com/news/knox-county-sued-by-layla-soliz-over-forced-hijab-removal/article_a9144488-8522-11ef-a5d3-eb8605dd7751.html
Unrelatedly, abusers of the legal process who retaliate against critics with SLAPP-suits got a huge win in the Tennessee Supreme Court this week. The win comes at the expense of Horwitz Law, PLLC clients who successfully advocated for low-income tenants who were being targeted with an illegal eviction in the middle of winter. In retaliation, the advocates were baselessly sued for a bunch of facially bogus nonsense, and they had to incur seven months of uncompensated legal expenses before the misbehaving landlord abandoned his claims right before hearing. The Tennessee Supreme Court’s no-good, very-bad decision rewarding that tactic with the right to be free from any consequences (like fee-shifting) all but ends contingency representations in Tennessee anti-SLAPP cases, and it dramatically weakens the Tennessee Public Participation Act, Tennessee’s still-relatively-new anti-SLAPP statute. Read all about it: https://scotblog.org/2024/10/victims-of-slapp-suits-cannot-recover-their-legal-fees-if-plaintiffs-withdraw-their-claims-before-hearing-holds-tennessee-supreme-court/
