A snappy weekly newsletter from the lawyers at Horwitz Law, PLLC summarizing the week’s decisions from the Tennessee Court of Appeals.
September 14–September 27, 2024
- Crappy and famously abusive teledentistry company that is now in bankruptcy sues NBC for reporting on its ineffective products, seeks a gagillion dollars in damages. NBC petitions to dismiss SmileDirectClub’s SLAPP-suit under the Tennessee Public Participation Act, and the trial court does so. Tennessee Court of Appeals: And that decision stands. The TPPA does not violate either the separation of powers doctrine or the right to a jury trial, and SmileDirectClub failed to prove actual malice as to any statement over which it sued. Also, “whether SDC is a dishonest company is a matter of opinion.”
- Woman falls in a hole, sues the Property Owner for negligence. Tennessee Court of Appeals: A property owner’s “duty of care includes ‘removing, or warning against, any dangerous condition on the premises of which the property owner is actually aware or should be aware through the exercise of reasonable diligence.” That means that notice—or at least constructive notice—is necessary, and here, Woman admitted repeatedly in her response to Property Owner’s Statement of Undisputed Material Facts that Property Owner didn’t have any notice of the hole. So the trial court’s order granting summary judgment for Property Owner is affirmed. And the trial court wasn’t required to embark on a “truffle hunt” for uncited evidence, either.
- Is witness testimony given in the course of a parole hearing absolutely privileged from defamation liability? Tennessee Court of Appeals: “Under Tennessee law, the manner by which the parole board’s decision on whether to grant parole is reviewed . . . reflects that it is a judicial function[,]” so the answer is yes as long as the statements made “are relevant and pertinent to the issues involved” in the hearing. And here, they were, so the trial court’s order dismissing the plaintiff’s complaint on absolute privilege grounds is affirmed.
- Defendants engage in some kind of election-related chicanery, get sued and hit with a permanent injunction under a Tennessee criminal law. The Defendants then violate the injunction, get punished with criminal contempt for violating the injunction. Tennessee Court of Appeals: Hold on a minute. One of our previous decisions holds that trial courts have no authority to enter a permanent injunction under the statute in question. That means that the injunction was not a lawful order and can’t give rise to a contempt conviction. So the Defendants’ contempt judgment is reversed.
- In litigation between a partnership and its limited partners, are attorney’s fees payable from the proceeds of a sale of the partnership’s property? Tennessee Court of Appeals, in a decision that is every bit as dry as it sounds: Based on the extremely specific text of the Limited Partnership Agreement at issue, yes.
- Pro se litigant exploits Tennessee’s uniquely liberal nonsuit rules, nonsuits and refiles the same lawsuit three times. But wait! His third lawsuit was filed more than a year after the first nonsuit. Tennessee Court of Appeals: And because of that, it is barred by the applicable statute of limitations, because Tennessee’s Savings Statute requires subsequent lawsuits to be filed within one year of the first nonsuit. So the plaintiff’s third lawsuit was properly dismissed as time-barred, and because his argument to the contrary is frivolous, he’s on the hook for appellate attorney’s fees.
- The Tennessee Department of Environment and Conservation (TDEC) files an appeal 25 days after an administrative order enters. Afterward, Company and the TDEC feud over a conflict between the Uniform Administrative Procedures Act (which requires appeals to be filed within 15 days) and the Water Quality Control Act (which allows appeals to be filed within 30 days). Two-thirds of a Tennessee Court of Appeals panel: Although you’d think that the more specific provision would govern, the Water Quality Control Act says that “If any provision of this part conflicts with the [UAPA], then the latter shall govern.” Thus, the UAPA’s appeal deadline controls, and TDEC’s appeal was late. Judge Usman, dissenting: There’s a 2013 amendment to the Water Quality Control Act that says 30 days is fine, and that amendment should be treated as an implied repeal.
- Breach of contract litigation spills out of an estate proceeding, with would-be buyers of property seeking specific performance. Tennessee Court of Appeals: Based on a misunderstanding of who inherited the property, “the parties were traveling under the same mistake of law, i.e., that [specific person] could pass good title” to it. And here, the parties’ mutual mistake as to the property’s owner renders the contract unenforceable.
- Pro se plaintiff sues the State of Tennessee in the Tennessee Claims Commission for wrongful death and for violating his rights as a crime victim. The Claims Commission dismisses plaintiff’s claims, and plaintiff appeals. Tennessee Court of Appeals: Unfortunately, substantial briefing deficiencies require us to treat every issue in this appeal as waived and to dismiss it.
- Pro se plaintiff convicted of attempted first-degree premediated murder and other crimes sues his former attorneys. Tennessee Court of Appeals: But his appellate brief is devoted to complaining about a Tennessee Supreme Court Justice—an issue we lack authority to review. So the trial court’s order dismissing his lawsuit against his attorneys is affirmed.
- After being sanctioned—but before the fees due as a result of that sanction are quantified—Plaintiff nonsuits his case. Trial Court: You can’t evade a sanctions order by nonsuiting, so fees are still due. Tennessee Court of Appeals: Not so, actually. Under these circumstances, the Defendants didn’t have any vested rights, so the Plaintiff was free to nonsuit without restriction. Thus, the trial court’s attorney’s fees order is vacated. Two-thirds of the same panel, concurring: We write separately to express our concern that this rule sucks. “A voluntary nonsuit should not allow Plaintiff to escape responsibility for his actions or to prevent [Defendant] from being properly compensated for Plaintiff’s wrongdoing.” [Editorial note: This decision arguably conflicts with some of the Tennessee Court of Appeals’ vested rights jurisprudence, and it definitely conflicts with its recent sanctions jurisprudence.]
- Ex-Employee counterclaims against Ex-Employer for retaliatory discharge. “According to his pleading, for over ten years, [Ex-Employee] was forced to obtain illegal opiates for the president of Collier Engineering,” and he was fired after he told the president he would no longer participate. Ex-Employer then moves to compel arbitration based on a contract between the parties, which Ex-Employee opposes. Tennessee Court of Appeals: “The arbitration provision does not apply to the retaliatory discharge counterclaim because the counterclaim does not ‘arise out of or relate to’ the Employee Confidentiality, Non-Compete, and Non-Solicitation Agreement.”
- Plaintiff trips and falls over “a cut signpost” while (ostensibly because his car had broken down) walking along a highway median. He then sues a construction company that was doing construction along the highway. Tennessee Court of Appeals: Given that Plaintiff failed to introduce any evidence that the construction company had either custody or control over the signpost, the trial court properly granted the construction company summary judgment.
- Insurance Companies sue Insurance Defense Lawyer for malpractice and negligent misrepresentation after Insurance Defense Lawyer fails to raise a case-dispositive personal jurisdiction defense in an expensive negligence lawsuit. Tennessee Court of Appeals: Because Insurance Defense Lawyer formally represented the Insurance Companies’ insureds, rather than the Insurance Companies themselves, Insurance Companies can’t maintain a direct legal malpractice claim. But they can maintain a malpractice claim as subrogees of their insureds, which is something of an exception to the rule that legal malpractice claims can’t be assigned. Further, because “silence when advice should have been given can give rise to a claim” for negligent misrepresentation—and because “a misrepresentation about a future event can be the basis of a negligent misrepresentation claim if the misrepresentation about the future event is based on a present fact”—that claim survives, too. So the trial court’s judgment is affirmed in part and reversed in part, and the case is remanded for trial.
Firm Highlights/Lowlights
The “recruit[ment]” provision of Tennessee’s viewpoint-based, speech-restricting “abortion trafficking” law is now preliminarily enjoined, courtesy of a massive win by Horwitz Law, PLLC clients Rachel Welty and Representative Aftyn Behn. Read all about it!
And remember that SLAPP-suit filed by no-good, very-bad, bombastic Aetna Mountain developer John “Thunder” Thornton, who tried to shut up a couple of citizens who spoke out about the fact that his planned development sits atop a bunch of abandoned underground coal mines? That’s dismissed now, after the trial court granted Horwitz Law, PLLC client Joe E. Blevins’ TPPA petition earlier this week.
