A snappy weekly newsletter from the lawyers at Horwitz Law, PLLCsummarizing the week’s decisions from the Tennessee Court of Appeals.
January 1–5, 2024
“Extremely intoxicated, hostile, and belligerent” Army lieutenant makes a series of increasingly poor decisions. After a night out drinking at a bar during a bachelor party, he removes his shirt, places it on the ground, and starts urinating on it. He then gets himself arrested and charged with public intoxication, resisting arrest, and assault on a police officer. Afterward, he engages in extensive Facebook messenger correspondence with his “companion” from the evening—distinct from his “then-girlfriend, now wife”—in an attempt to ascertain what happened, and she tells him exactly how intoxicated, aggressive, and violent he was. The Secretariat of bad judgment then sues his arresting officers “for defamation and negligence per se” (claiming, among other things, “that he was not intoxicated, aggressive, or violent when he was arrested”). During the litigation, he repeatedly conceals and otherwise lies about his damning correspondence with his “companion,” which he alternately claims did not exist, he forgot about, his wife told him to delete, and/or was work product created at the direction of his attorney. Davidson County Circuit Court: Your “blatant prevarication and misconduct warrants the most severe sanctions,” so you are ordered to pay over $60,000 in fees and costs, and all of your claims are dismissed with prejudice. Tennessee Court of Appeals: And those sanctions “were directly related to the discovery abuses and were not excessive under the circumstances.” (DAH)
After Husband and Wife divorce, Wife sues Husband based on a provision of their marital dissolution agreement that says she gets half the equity in their formerly shared home “when the house sells.” Chancery Court for Montgomery County: Wife gets half the equity as of the date of the Parties’ divorce in 2019. Tennessee Court of Appeals: No, wife gets half the equity as of the date of the house’s sale in 2023. But Husband gets an unjust enrichment credit for the twenty-two consecutive monthly payments that he has already paid Wife based on their alleged oral agreement about the amount of her equity interest, even though the agreement violates the statute of frauds. This case is otherwise remanded so Husband can introduce evidence about improvements and other expenditures he made and so Wife can introduce evidence that she’s entitled to reimbursement for her rent because Husband kicked her out before the house was sold. Also, the relevant provision of the Parties’ “not a model of clarity” MDA—which resulted from “the parties’ self-drafting of a form document they obtained from an unknown source”—is internally inconsistent, so this entire opinion is declared non-citable. (DAH)
Homeowner contracts with Contractor to build a “log home.” Contractor contracts with Subcontractor to provide some labor and materials. Subcontractor: I did more than $60,000 of work for which Contractor never paid me, so I’m entitled to payment from Homeowner, who flipped the property (which cost $382,000.00 to build) for a cool $1.5 million after construction was completed. Tennessee Court of Appeals: Not yet you aren’t. Although Tennessee law allows unpaid subcontractors to file unjust enrichment claims against property owners, they have to exhaust their available remedies against the contractors with whom they were in privity first, and getting a default judgment against the deadbeat contractor without demonstrating that you can’t collect on it isn’t exhaustive enough. (DAH)
Company sues Employees for holding events using the company’s name and failing to remit proceeds. During the litigation, Employees’ counsel “inadvertently included”—twice—a privileged email from one of the Employees in his trial court filings. Employees’ counsel then continues to file the privileged email in the court record and “discusses the substance and contents of the email at length” at least twice more after that. Employees: Company shouldn’t get to use the privileged email, particularly because Company “trap[ped]” us into making a bunch of apparently false statements using information gleaned from it. Tennessee Court of Appeals: It’s true that Tennessee Code Annotated § 23-3-105 subjected the email to the attorney-client privilege. But Tennessee Rule of Evidence 502 requires privilege holders to take “reasonable steps to prevent disclosure,” and repeatedly filing and citing the email was definitely not that, so the email is now admissible. The waiver of privilege is limited to the email alone, though; it doesn’t extend to “any undisclosed communications concerning the same subject matter.” (DAH)
Company A initiates arbitration proceeding against Companies B and C, wins, and then petitions the Davidson County Chancery Court to confirm the arbitration award. Companies B and C: Hold on, we didn’t even know the proceeding existed until we received the motion to confirm the award! Davidson County Chancery Court: That’s too bad; you all objected too late, so the arbitration award is confirmed. Tennessee Court of Appeals: Actually, because “absence of notice may warrant vacatur under the [Federal Arbitration Act],” the award is vacated for now, in part because Company A failed to include a ton of information in the appellate record that would allow us to determine when notice was provided. On remand, the trial court must determine both whether one of the companies even agreed to arbitrate and when the companies actually received notice of the arbitration, too. (DAH)
Father and Stepmother sue to terminate Mother’s parental rights over Child. Father/Stepmother: Child lives with us, and Mother hasn’t seen her or supported her in years, among other issues. Chancery Court for Sumner County: And those are both valid grounds for termination, but Tennessee’s termination of parental rights statutes recognize “that terminating an unfit parent’s parental rights is not always in the child’s best interests,” and it is not in Child’s best interest here. Tennessee Court of Appeals: “Upon review of the evidence, we agree with the trial court’s assessment and findings.” (Editorial note: Mother nearly had her parental rights terminated because she waived multiple potentially valid defenses, which Tennessee law really should not allow.) (DAH)
A victory for Horwitz Law, PLLC client Theresa Baldwin! In 2022, Ms. Baldwin was sued for a cornucopia of speech-based tort claims after she criticized two adults (one of them an oft-sanctioned lawyer) who took her minor daughter into their home and elsewhere against Ms. Baldwin’s instructions to stay away. And because—after more than a year of litigation—the Plaintiffs failed to establish any element of their various claims, the Tennessee Public Participation Act means that Ms. Baldwin wins and gets to recover her legal fees. Read the Circuit Court of Robertson County’s Order Granting Defendant’s Tenn. Code Ann. § 20-17-104(a) Petition to Dismiss the Plaintiffs’ Amended Complaint Pursuant to the Tennessee Public Participation Act here: https://horwitz.law/wp-content/uploads/2022-247-Order-Granting-TPPA-Petition.pdf.
On May 24, 2022, a gunman massacred 19 elementary school students and two teachers in Uvalde, Texas. 376 law enforcement officials who responded to the scene—who lied about at least a dozen critical facts of the shooting afterward—stood idly by while the gunman’s hour-long execution of young children and their teachers unfolded before them. “Law enforcement responders failed to adhere to their active shooter training, and they failed to prioritize saving the lives of innocent victims over their own safety,” an Interim Report by the Texas Legislature’s Investigative Committee concluded. The same committee also determined that law enforcement’s fatal failures were not attributable to “malice or ill motives”; instead, “systematic failures and egregious poor decision making” were the culprits.
In a unanimously wrong decision issued by the Tennessee Supreme Court on February 16, 2023, Tennessee’s high court has ruled that if this exact scenario unfolds in Tennessee tomorrow, then the government need not pay for any of the harm caused. Only a concurring opinion by Justice Kirby—which expressly (and blessedly) calls for review of Tennessee’s outmoded, extra-statutory, judge-invented “public duty doctrine”—explains why. The practical effect of the Court’s opinion, though, is clear: If heads, then the government wins. If tails, then the plaintiff suing the government loses. In virtually all instances, however, the government will not have to pay.
To understand how Tennessee law arrived at this disturbing point, some background is useful. At common law, governments were generally immune from any lawsuit based on the doctrine of “sovereign immunity.” The origins of that despotic doctrine are unapologetically monarchical. “‘[D]eeply rooted in feudal notions of the divine right of kings,’ sovereign immunity, which protects the state and its political subdivisions from tort liability, is based upon the premise that ‘the King can do no wrong.’”[1]
In 1975, a closely divided Tennessee Supreme Court disagreed about whether sovereign immunity was part of Tennessee’s common law. Disputing that it was, two dissenting Justices complained that interpreting Tennessee’s straightforward law on the matter “does not require brilliance—just intellectual honesty”; that application of sovereign immunity had “produced ludicrous results”; that the Tennessee Supreme Court had woven “a tangled web . . . to protect and promote an unjust rule of law”; and that they would “condemn this legal monstrosity to the oblivion which it so richly deserves.”[2] The dissenting Justices’ views did not carry the day.
Sovereign immunity’s questionable origins aside, all agree that Tennessee’s General Assembly has authority to enact legislation allowing the government to be sued for tortious misconduct. In the 1970s, a slightly more evolved Tennessee General Assembly also did just that. In particular, “[i]n 1973, following the lead of other states that had abolished or limited sovereign immunity by statute or judicial decision, our General Assembly passed the Tennessee Governmental Tort Liability Act[.]”[3]
The GTLA’s most important provision—Tenn. Code Ann. § 29-20-205—states that: “[i]mmunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment” except for specified exceptions (such as intentional misconduct) that are listed in the statute. Based on this provision and the sole purpose underlying it (to allow tort victims of government negligence to recover), one might reasonably expect that the government could be sued successfully when its negligence causes harm. Given another judicially manufactured common law doctrine—the “public duty doctrine”—that appears nowhere in the GTLA, though, the practical reality is quite different.
“The public duty doctrine originated at common-law and shields a public employee from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at large.”[4] This is a complex way of saying that if a public employee owes a duty to every member of the public, then the government is immune from suit if that duty is violated as to any specific person. Thus, based on this doctrine, the Tennessee Supreme Court explained in 1975 that “[i]t is the settled law in this state that private citizens, as such, cannot maintain an action complaining of the wrongful acts of public officials unless such private citizens aver special interest or a special injury not common to the public generally.”[5]
To be sure, the Tennessee Supreme Court is aware that “[t]he public duty doctrine is not expressly listed as an exception to the waiver of immunity for injuries resulting from negligent acts or omissions of governmental employees” set forth in Tenn. Code Ann. § 29-20-205,[6] which instead delineates ten exceptions that are not the public duty doctrine. Given that, how can it be that the public duty doctrine is still applied as an exception to liability in negligence cases arising under the GTLA? The answer is straightforward and unsettling: Because regardless of the statute that the Tennessee General Assembly enacted, the Tennessee Supreme Court preferred a policy that prevented the government from being sued instead. “We think that on balance, the State is better served by a policy that both protects the exercise of law enforcement discretion and provides accountability for failure to perform a duty,” the Tennessee Supreme Court explained in 1995.[7] Given the Tennessee Supreme Court’s traditional fondness of proclaiming that “[i]t is not the role of this Court to substitute its own policy judgments for those of the legislature[,]”[8] the Court’s explicit embrace of such judicial policymaking is curious.
In any case, since 1995, the Tennessee Supreme Court has held that “the public duty doctrine was not abolished by the Governmental Tort Liability Act and that sound policy reasons support its continuance[.]”[9] As a result, in order to sue the government for negligence caused by an employee, a plaintiff must generally raise a negligence claim under the GTLA and then overcome the separate immunity conferred by the public duty doctrine as well.
Until yesterday, doing so was difficult but not impossible. In particular, based on the same 1995 decision discussed above, the Tennessee Supreme Court held that plaintiffs could overcome the public duty doctrine’s additional layer of immunity when one of the following three circumstances applied to establish a “special duty”:
1) officials, by their actions, affirmatively undertake to protect the plaintiff, and the plaintiff relies upon the undertaking; 2) a statute specifically provides for a cause of action against an official or municipality for injuries resulting to a particular class of individuals, of which the plaintiff is a member, from failure to enforce certain laws; or 3) the plaintiff alleges a cause of action involving intent, malice, or reckless misconduct.[10]
The first two exceptions are sufficiently rare that few plaintiffs can rely on them. Thus, in virtually all cases in which the public duty doctrine applies, plaintiffs need to plead a negligence claim under the GTLA and also allege “reckless misconduct” to overcome the public duty doctrine. The reason why was simple: The GTLA itself provides that intentional and malicious conduct remain subject to immunity.[11] Thus, in most cases, the only non-exempt theory of relief that permitted a plaintiff to navigate both the GTLA’s and the public duty doctrine’s overlapping layers of immunity were negligence claims that involved reckless misconduct.
Based on this difficult-but-not-impossible state of affairs, at least some plaintiffs who found themselves the victims of government negligence could and did recover for their injuries. For instance, in April 2022, the Court of Appeals reinstated a negligence claim filed by a gunshot victim who alleged negligence on the part of a sheriff’s deputy, unanimously explaining that “[t]he complaint also contains sufficient factual allegations of reckless misconduct such that the special duty exception to the public duty doctrine could apply.”[12] Thus, the Plaintiff’s negligence-combined-with-recklessness claim went forward. Other victims of governmental negligence that involved recklessness were able to survive early dispositive motions and then recover, too.
No longer. Courtesy of the Tennessee Supreme Court’s decision in Lawson v. Hawkins Cnty., 2023 WL 2033336, at *6 (Tenn. Feb. 16, 2023), the Tennessee Supreme Court has now determined that:
The [GTLA] removes immunity only for “negligent” employee acts. Common-law precedent and statutory context make clear that the term “negligent” in section -205 means ordinary negligence, not gross negligence or recklessness. The Court of Appeals erred by holding otherwise.
The reasoning underlying the opinion is exceedingly poor. For instance, the opinion relies heavily on Tennessee’s COVID liability statute—which was enacted in 2020, and which also had little bearing upon and did not purport to address the question presented—to determine the meaning of a statute enacted almost fifty years earlier. That is an unusual departure from traditional interpretive methods, particularly given that the opinion was authored by the same Justice who—only six months ago, and in another government-favoring opinion that similarly raised eyebrows—took pains to emphasize the importance of examining “[o]riginal public meaning” and “authoritative dictionaries published around the time of a statute’s enactment[,]”[13] none of which appears to have been consulted. Also ignored was directly relevant Tennessee statutory law, which has long recognized that simple negligence claims may include recklessness. See, e.g., Tenn. Code Ann. § 29-39-104(a)(1) (providing that recklessness may support an award of punitive damages in negligence cases); Wilson v. Americare Sys., Inc., 397 S.W.3d 552, 553 (Tenn. 2013) (remanding for consideration of punitive damages award in suit arising from, among other things, reckless misconduct in case where “the negligence of the staff, the owner, and its management company caused Ms. Farrar’s death.”). The decision conflicts with recent authority from other jurisdictions that bears directly on the point, too. See, e.g., Weis v. Baumann, No. DBDCV216038973S, 2021 WL 4895122, at *3 (Conn. Super. Ct. Sept. 22, 2021) (“While not all negligent acts are reckless, reckless conduct will almost certainly always also be negligent.”).
Given the continued application of the public duty doctrine, the practical effect of the Lawson Court’s ruling is certain: Virtually no plaintiff will be able to recover against the government in a negligence case. In particular, to be able to sue under the GTLA, a plaintiff is now required to assert a simple negligence claim alone, because claims of recklessness are not subject to liability. After asserting such a simple negligence claim, though, the plaintiff’s claim will be dismissed for failure to assert recklessness based on the public duty doctrine’s overlapping layer of immunity forbidding simple negligence claims. So heads, the government wins, and tails, the plaintiff suing the government loses.
One Justice, at least, has recognized the “Catch-22 for plaintiffs” that the Tennessee Supreme Court has now assured. Specifically, in a concurring opinion, Justice Kirby noted that:
If the plaintiff’s complaint alleges that the governmental entity’s employee was reckless in order to qualify for the “reckless misconduct” special duty exception to the public duty doctrine, then dismissal under the GTLA is likely because immunity is not removed for reckless conduct. Conversely, if the complaint alleges that the governmental employee was negligent in order to avoid dismissal under the GTLA, the plaintiff risks dismissal under the public duty doctrine by making his claim ineligible for the special duty exception for reckless misconduct.[14]
Justice Kirby’s concurrence also calls upon the Tennessee Supreme Court to consider whether it should “discontinue application” of the outmoded public duty doctrine “in deference to the statutes governing immunity” that do not embrace it.[15]
Regrettably, the Tennessee Supreme Court’s decision in Lawson is yet another example of courts undermining citizens’ ability to sue the government in the face of statutes that expressly provide they can. Courts’ extra-statutory eagerness to gut the remedies afforded by 42 U.S.C. § 1983—the most important civil rights statute ever enacted—through the judge-made doctrine of qualified immunity is perhaps the best known example. Less well known is the fact that courts have gutted, for instance, the remedies afforded by statutes like the law enforcement proviso of the Federal Tort Claims Act following a successful reform effort that was designed to ensure that federal law enforcement officials could be sued for intentional torts. In every such case, though, courts’ response to legislative efforts to afford citizens a remedy has been to ensure that that remedy is as useless as possible and to leave tort victims like Mrs. Lawson without a remedy.
On a broader level, this reliable pattern is corrosive to democracy. Unlike tacitly intimidating judges by visiting their homes, the right way to advocate for policy change is democratically—by petitioning legislators to change the law by adopting needed reforms, and by voting them out of office when they refuse. When courts disrespect the results of the democratic process after citizens have advocated for reform successfully, though—for instance, when they rule that “on balance, the State is better served by a policy” that protects the government from being sued regardless of the legislation that the democratic process produced—the resulting message that judges (most of whom are former government lawyers) do not actually respect the democratic process is clear. Unless and until the judiciary as a whole sheds its heavy preference for government-friendly outcomes, though, it seems unlikely that confidence in the American judiciary—currently at a historic low—is at risk of improving anytime soon.
In a unanimous panel opinion issued on August 12, 2022, the U.S. Court of Appeals for the Sixth Circuit has ordered that Horwitz Law, PLLC appellate client Kenneth Mynatt’s malicious prosecution and civil conspiracy claims against the United States—maintained under the Federal Tort Claims Act—be reinstated and permitted to move forward. The Court’s unanimous ruling, authored by Judge Richard Griffin, sets critical Circuit precedent that presenting false evidence to secure an indictment is not “discretionary” conduct within the meaning of the Federal Tort Claims Act’s “discretionary function” exception.
“The question here is whether presenting false evidence (in testimonial or documentary form) to a prosecutor and then to a grand jury is the type of conduct ‘that the discretionary function exception was designed to shield.’ The answer here is plainly no,” Judge Griffin explains. In so holding, the Sixth Circuit has joined other federal courts in concluding that “[t]here can be no argument that perjury is the sort of legislative or administrative decision grounded in social, economic, and political policy that Congress sought to shield from second-guessing.” In reversing Middle District of Tennessee District Court Judge William Campbell’s contrary ruling, the Panel further “agree[d] with Mynatt that the district court framed the issue incorrectly and erred[.]”
“We are proud to have represented Mr. Mynatt on appeal and to have won him a unanimous, precedent-setting reversal that permits his Federal Tort Claims Act claims against the United States to move forward,” said Horwitz Law, PLLC principal Daniel A. Horwitz, who represented Mr. Mynatt on appeal along with co-counsel Lindsay Smith.
Read the Sixth Circuit’s unanimous ruling in Kenneth J. Mynatt v. United States of America, et al., here. Mr. Mynatt’s briefing in the case and selected media coverage are available below.
As part of Horwitz Law, PLLC’s appellate practice, Horwitz Law has successfully represented appellate clients in high-stakes, high-profile appeals before the United States Court of Appeals for the Sixth Circuit, the Tennessee Supreme Court, the Tennessee Court of Appeals, the Tennessee Court of Criminal Appeals, the Tennessee Supreme Court Special Workers’ Compensation Appeals Panel, and in administrative agency appeals to Davidson County Chancery Court. Horwitz Law also provides amicus curiae representation in both state and federal appellate courts. If you are seeking appellate representation, you can purchase a consultation from Horwitz Law here.
In a pair of separate opinions issued June 20, 2022, the Tennessee Court of Appeals affirmed a ruling by Davidson County Chancery Court Judge Ellen Hobbs Lyle in favor of Plaintiffs AmyFrogge, Fran Bush, and Jill Speering, all represented by Horwitz Law, PLLC. The ruling arose out of a lawsuit filed against Metro and ex-MNPS Director Shawn Joseph regarding the legality of the School Board Censorship Clause contained in Joseph’s severance agreement. In a September 2020 Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.
Among other things, the School Board Censorship Clause prohibited elected School Board members even from truthfully criticizing “Dr. Joseph and his performance as Director of Schools.” Upon review of it, Chancellor Lyle ruled that the clause violated the Plaintiffs’ First Amendment rights, unlawfully prohibited them from speaking honestly with their constituents, and violated established Tennessee public policy. As a result, Chancellor Lyle invalidated the clause as unenforceable and ordered Metro and Joseph to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which were pledged to charity. Thereafter, both Metro and Joseph appealed.
Upon review of Chancellor Lyle’s ruling, the Court of Appeals unanimously affirmed in a pair of separate opinions. By the time the case reached appeal, the Defendants had all but conceded that what they had done was illegal and attempted to use that concession as a basis for avoiding a judgment. In their majority opinion, Judges Carma Dennis McGee and Andy Bennett noted that: “The fact that the defendants admit in their briefs that their contract was unlawful should not prevent Plaintiffs from having standing to challenge the contract in court.” In a separate concurring opinion, Judge McBrayer undertook a wider review of several issues that the majority determined Metro and Joseph had waived through deficient briefing, and he held that:
“Here, the chancery court concluded that there was ‘no material dispute that the Nondisparagement Clause contained in the Severance Agreement . . . does not promote a compelling governmental interest, that it is unconstitutional, and that is an overbroad and unenforceable speech restriction.’ Based on my review of the record, I conclude the same.”
“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel A. Horwitz, who represented all three Plaintiffs along with co-counsel Lindsay Smith. “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.” Selected case documents and media coverage are linked below.
As part of Horwitz Law’s First Amendment practice, Horwitz Law has successfully represented and advised numerous state and local elected officials, candidates for public office, PACs and political organizations, county political parties, and other political law clients across Tennessee. If you are seeking First Amendment or political law assistance, you can purchase a consultation from Horwitz Law here.
