October 18–31, 2025

• Plaintiff files negligence action, has it dismissed on summary judgment for lack of breach of duty and causation.  Plaintiff appeals but fails to preserve or argue issues related to breach of duty.  Tennessee Court of Appeals, enraged: We affirm based on the unappealed dispositive ground.  And to make readers of this newsletter cringe, we award frivolous appeal damages based on the following analysis: “[Plaintiff] failed to adequately raise issues on appeal that would result in reversal of summary judgment—there is no mention of ‘breach’ or ‘duty’ in her brief. Finally, at oral arguments in this matter, [Plaintiff’s] counsel was ‘not aware of a scheduling order in this case.’ Further, counsel conceded that she did not read the trial court’s April 2025 order granting summary judgment. Under these circumstances, we find that Appellees are entitled to reasonable fees and costs on appeal, and we remand the case to the trial court to determine the amount of the fee award.”
• Mother, a family law litigant, appeals adverse contempt ruling and an order related to modification of a parenting plan.  Father requests appellate attorney’s fees in his response briefing.  Mother then voluntarily dismisses her appeal.  Under these circumstances, can Father get his appellate attorney’s fees?  Tennessee Court of Appeals: Based on Horwitz Law, PLLC’s spectacular Tennessee Supreme Court win in Colley v. Colley earlier this year, yes.
• County Attorney files ouster petition seeking to oust beleaguered Shelby County Clerk from office.  Due to a conflict, though, the County Attorney recuses and delegates prosecution of the ouster petition to a Deputy County Attorney.  The trial court dismisses the petition for want of subject-matter jurisdiction, and County Attorney appeals.  Tennessee Court of Appeals: “Tennessee courts . . . have long characterized the ouster statutes as remedial in nature,” and remedial statutes must be interpreted in a manner designed to achieve their intended purpose.  [Editorial note: The Court of Appeals should perhaps start abiding by this rule when it comes to tort litigation against the government.]  So “we decline to construe the ouster statutes so strictly as to completely prevent their use by county attorneys in situations” when the county attorney has a conflict.  Thus, the Deputy County attorney has statutory standing to bring the ouster petition under the County Attorney’s title, and we remand for further proceedings.
• Separate ouster petition (and this is not a common thing) results in an appeal related to sanctions issued against one of the Relators and the Relators’ counsel.  Tennessee Court of Appeals: The trial court erred in sanctioning the lead Relator because the evidence is insufficient to show that he filed the ouster petition in contravention of Rule 11.  We affirm—based on the judiciary’s inherent authority to sanction—sanctions against the Relators’ counsel, though, who “sign[ed] the petition and other pleadings as if he represented clients with whom he had no actual professional relationship.”
• Plaintiff sues wrong corporations and additional John Doe corporations for wrongful death.  But Plaintiff is dilatory in identifying the proper party and doesn’t seek to amend in the proper party until after the statute of limitations expired.  Can Plaintiff use Tennessee Rule of Civil Procedure 15.03 to sue the proper defendant based on a mistake theory, given that the proper defendant and the original corporate defendants were represented by the same counsel?  Tennessee Court of Appeals: No.
• Internal dispute between splitting factions of the United Methodist Church concerning ownership of certain church property spills into court.  The litigation then gets complicated further by a recusal motion that is premised on claims that the trial judge is buds with Congressman Tim Burchett, who supposedly is buds with a bunch of people from the Plaintiffs’ side of the litigation.  Tennessee Court of Appeals: No need to recuse here, because the movants’ assumptions surrounding the recusal motion were unfounded.  The trial court also correctly granted a motion to dismiss the third-party complaint in the case for want of subject-matter jurisdiction based on the ecclesiastical abstention doctrine, because “[u]nder the ecclesiastic abstention doctrine, a Tennessee court does not have jurisdiction to determine the procedure for the separation of an affiliated church from a hierarchical church organization.”  Further, “even if discovery responses might have affected the outcome, [Appellant] did not take reasonable steps to prevent the occurrence of this alleged error.”
• Plaintiff, a beneficiary of two trusts, files fourth iteration of a lawsuit based on Defendants’ alleged mismanagement of the trusts.  The trial court dismisses the Plaintiff’s Complaint on statute of limitations grounds, and Plaintiff appeals.  Tennessee Court of Appeals: “Plaintiff’s Complaint—filed pro se—is a long, meandering string of paragraphs that are at points incomprehensible.”  [Editorial note: Not a good start.]  And since the gravamen of his claims are breach of trust claims, all of his claims are time-barred by the Tennessee Uniform Trust Code’s three-year statute of limitations.  We also find the Plaintiff’s appeal sufficiently baseless to warrant frivolous appeal sanctions.
• General Contractor hires Subcontractor to perform plumbing work (the Parties have a written contract for the work).  General Contractor also hires Subcontractor to do excavation work on the same project (they do not have a contract for this work).  Afterward, a payment dispute arises related to what is due for the excavation work.  General Contractor also raises seemingly pretextual claims that Subcontractor failed to perform on the plumbing contract.  Eventually, Subcontractor sues for breach of the Parties’ written contract and for unjust enrichment damages for the excavation work.  Trial court: Subcontractor wins everything and gets attorney’s fees for the portion of the litigation related to breach of the written contract.  Tennessee Court of Appeals: Affirmed in full, and also here’s a vocab lesson (“interregnum”).
• A billboard has a convoluted ownership and lease history that is relevant to the Parties’ dispute and dates back more than four decades.  Trial court ultimately rules for one of the parties.  Tennessee Court of Appeals: The trial court made several errors—to include inadequate findings—that warrant remand.  Much more interesting, though, is what your Summarist thinks is the Tennessee Court of Appeals’ first recognition of a distinction between “forfeiture” and “waiver” (which the Tennessee Supreme Court recognized for the first time just a couple of weeks ago) and its rejection of multiple affirmative defenses based on those doctrines.
• Litigants have property line dispute.  But only the Plaintiff has a surveyor testify at trial, and the trial court credits that surveyor’s testimony.  Defendants appeal.  Tennessee Court of Appeals: “Defendants did not provide the Trial Court with the benefit of a testifying surveyor who could explain a countervailing view. As it stood at trial, there was one testifying surveyor, Boynton, who explained his reasoning. The Trial Court found Boynton credible, and there is no clear and convincing evidence to discount the Trial Court’s credibility determination. We accordingly affirm the Trial Court’s establishment of the boundary line in accordance with the Boynton Survey.”
• Defendant erects a fence to prevent her Neighbors from using a road that she claims belongs to her.  So Neighbors sue her and seek an injunction allowing them to use the road.  Trial court rules for the Neighbors, and Defendant appeals.  Tennessee Court of Appeals: “The [Neighbors] produced a plethora of evidence showing that the disputed land had been accepted for public use” as a city-owned public road, so we affirm.
• Plaintiffs sue their neighbor over a driveway easement.  Trial court: They win!  Tennessee Court of Appeals: Actually, they lose, given that Neighbors had been using the driveway under the terms of an agreement between the Plaintiffs and the previous properties owners that says it “would run with the land and to all respective heirs, successors and assigns.”  And because Plaintiffs lose, they don’t get the frivolous appeal damages they asked for, either.  [Editorial note: Oof.]
• Receivership dispute that makes your Summarist’s head hurt reaches the Tennessee Court of Appeals.  Tennessee Court of Appeals, blessedly: But the order below is non-final, and the trial court erred in using a Rule 54.02 order (which “‘should not be entered routinely’ and ‘cannot be routinely entered as a courtesy to counsel’”) to certify it as being final.  So we dismiss the appeal for lack of jurisdiction and your Summarist doesn’t have to get into the weeds of it.
• Pro se Appellant pursues accelerated interlocutory appeal of trial court order denying a motion to recuse.  Tennessee Court of Appeals: Regular readers of this newsletter already guessed what happened, and we dismiss the appeal for failure to comply with multiple mandatory Rule 10B requirements.
• Tennessee Court of Appeals: As a pro tip, if you fail without justification to respond to requests for admissions and fail to respond to the statement of undisputed materials facts filed as part of an opponent’s motion for summary judgment, all of the facts in the case are going to be deemed conclusively admitted against you.  But in a twist, the delinquent litigant here earns a summary judgment reversal because those facts don’t actually establish liability!  So we reverse.
• Inmate pursues certiorari review of prison disciplinary proceedings, has his petition dismissed for failing to verify it.  Inmate appeals.  Tennessee Court of Appeals: “The Tennessee Constitution mandates that a writ of certiorari be supported by an oath or affirmation,” and Inmate’s wasn’t.  Thus, we affirm the trial court’s dismissal for want of subject-matter jurisdiction.
• “This is an action for breach of contract, unlawful procurement of breach of contract, and civil conspiracy.”  Tennessee Court of Appeals: Despite our opinion being 27 pages long with dense facts and multiple appellate issues, the case is simplified to some extent by the fact that the Defendants’ Answers were stricken based on discovery misconduct and the trial court’s decision to do that was not an abuse of discretion.  No liability here for civil conspiracy, though, because the Defendants “cannot be held liable for conspiring to induce their own breach[.]”

Firm Updates

In a majority opinion written by an author who is best known for lying in his campaign materials that will shake your confidence in Tennessee’s entire criminal justice system, the Tennessee Court of Criminal appeals has affirmed the wrongful convictions of Russell and Kaye Maze, whom the State and a huge number of diverse medical experts agree were wrongfully convicted of a crime that never happened.  We’ll appeal.  Maybe just read the partially dissenting opinion (which should have gone further) to get a clearer picture of why this is so indefensible.