Category Archives: Civil Procedure

Victims of SLAPP-Suits Cannot Recover Their Legal Fees If Plaintiffs Withdraw Their Claims Before Hearing, Holds Tennessee Supreme Court

Appeals, Civil Procedure, Tennessee Public Participation Act, Tort Law, ,

By Daniel A. Horwitz:

Strategic lawsuits against public participation—better known as “SLAPP-suits”—use the legal system to punish constitutionally protected speech.[1]  The Tennessee Supreme Court has explained that “[t]he primary aim of a SLAPP is not to prevail on the merits, but rather to chill the speech of the defendant by subjecting him or her to costly and otherwise burdensome litigation.”[2]  Using this definition, it is hard to argue that plaintiffs are engaged in anything other than quintessential SLAPP litigation when they: (1) sue someone for their speech; (2) run up a defendant’s litigation expenses for as long as possible before a hearing; and then (3) withdraw their claims just before a reviewing court can rule on them.

Fortunately, like many jurisdictions, Tennessee has enacted an anti-SLAPP statute called the Tennessee Public Participation Act, or the “TPPA.”  As Tennessee’s Court of Appeals has explained, “the TPPA is largely intended to deter SLAPP lawsuits and prevent litigants from spending thousands of dollars defending themselves in frivolous litigation.”[3]  “[T]housands of dollars,” it should be noted, is a dramatic undercount.  Given Tennessee courts’ routine willingness to allow SLAPP-suit filers to delay proceedings through discovery, amendment, and other litigation tactics, the cost of defending a SLAPP-suit through a TPPA hearing routinely exceeds $25,000.00, and it often eclipses hundreds of thousands of dollars or, in some cases, millions.

In theory, the expenses imposed on SLAPP-suit victims do not matter at the end of the day.  That is because the TPPA contains an expense-shifting provision—Tennessee Code Annotated section 20-17-107(a)—that requires trial courts to “award to the petitioning party: Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition[.]”  Thus, no matter how long the litigation takes, the TPPA assures SLAPP-suit victims that they will recover their expenses at the end of it.  As a result, assuming a plaintiff’s ability to pay the award, the TPPA promises SLAPP-suit victims that they will (mostly[4]) be made whole when litigation ends.

Unsurprisingly, those who are engaged in abusive litigation that is intended to burden speakers with uncompensated expenses are uninterested in paying their victims.  And to achieve their nefarious goals, they have employed a simple tactic: file SLAPP-suits; run up a defendant’s litigation expenses for as long as possible; and then voluntarily dismiss their claims on the eve of hearing before a court can rule on them.  Lawyers who make SLAPP-suits their business also have employed this tactic over, and over, and over again, often nonsuiting literally minutes before hearing, the night before hearing, or even during a hearing on a TPPA petition.  After doing so, they have insisted that SLAPP-suit victims are not entitled to recover a penny of their legal expenses, because the voluntary dismissal precludes all further litigation, and a court has never granted a petitioner’s TPPA petition.

If blessing such a tactic seems antithetical to what the TPPA was designed to accomplish, that is because it is.  Filing a bogus speech-based lawsuit, imposing substantial litigation expenses, and—recognizing that one’s claims have no chance of prevailing—dismissing the case right before a court can rule is definitionally the behavior that the TPPA was designed to deter.  Even so, dozens if not hundreds of plaintiffs have done exactly that in the short time since the TPPA was enacted in 2019.

The certainty of fee-shifting also is what permits lawyers to defend SLAPP-suit victims on a contingent basis.  Without contingency representations, SLAPP-suit victims would be forced to expend—upfront—tens of thousands, hundreds of thousands, or even millions of dollars to defend their speech against bogus lawsuits: an amount of money that few speakers have to spend even if they wanted to.  Further, when faced with the choice of taking down a negative Yelp! review or having to liquidate one’s life-savings to defend it, self-censoring to avoid (or end) litigation becomes an easy choice.

Sadly, in a unanimous October 9, 2024 opinion authored by Justice Jeffrey S. Bivins, the Tennessee Supreme Court has now blessed the tactic of filing SLAPP-suits, running up litigation expenses, and then parachuting out of the litigation without consequence by nonsuiting on the eve of hearing.  The opinion arose out of the most sympathetic facts possible: a misbehaving landlord filing facially meritless litigation against speakers who successfully advocated for tenants that the landlord had tried to evict illegally—outside the legal process and in contravention of a federal eviction moratorium—by cutting off their heat during the middle of winter.  In response to TPPA petitions filed by those speakers, landlord Robert E. Lee Flade ran up the speakers’ litigation costs for roughly seven months; delayed a ruling following an initial TPPA hearing by convincing a trial court to allow him to take discovery first; and then voluntarily dismissed all of his claims just before a second TPPA hearing, leaving the sued speakers with tens of thousands of dollars in legal expenses that the Tennessee Supreme Court has now held they cannot recover due to Mr. Flade’s strategic dismissal.

The calamitous consequences of the Tennessee Supreme Court’s opinion in Flade—which strips the TPPA of its deterrent value—are assured.  Simply put: No longer do calculated abusers of the legal system have to worry about being ordered to pay their victims’ legal fees.  Instead, such abusers of the legal process are now empowered—as a matter of right—to file SLAPP-suits; wait and see if their victims are willing or able to hire an attorney to defend against them; run up their victims’ litigation expenses as long as possible before a TPPA hearing; and then voluntarily dismiss their claims before a court can rule.  Because lawyers who defend SLAPP-litigation—even successfully—can no longer be assured that they will be paid for doing so, Flade also represents the end of SLAPP-suit contingency representations in Tennessee.

Confronted with the inevitable results of sanctioning this proven abuse, the Tennessee Supreme Court’s opinion explains that “[w]e do not intend to minimize [these] concerns.  However, the[se] policy-based arguments are best addressed to the legislative branch.”  Thus, according to the Tennessee Supreme Court, its hands were tied by the text of Tennessee Rule of Civil Procedure 41.01(1), which “permits liberal use of voluntary nonsuits at any time prior to ‘final submission’ to the trial court for decision in a bench trial or in a jury trial before the jury” absent certain specified exceptions.

Lest anyone be fooled, the Tennessee Supreme Court has never followed this approach to interpreting Rule 41.01(1) before now.  For example, despite the Rule’s explicit prohibition against taking a voluntary dismissal “when a motion for summary judgment made by an adverse party is pending,” the Tennessee Supreme Court has held that “it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”[5]  The Tennessee Supreme Court has found other “implicit” exceptions to Rule 41.01(1)’s text, too, including inventing an entire category of exceptions for what it calls “The Vested Rights Implied Exception.”[6]  Thus, far from interpreting Rule 41 in a way that ties the judiciary’s hands, the Tennessee Supreme Court has interpreted it atextually in a way that furthers judicial policy preferences throughout the Rule’s existence.

With these considerations in mind, no one should be misled by the Tennessee Supreme Court’s claim that this result was compelled by text.  It was not—and the TPPA plausibly fell within three recognized exceptions to Rule 41.01(1) (two of them text-based) anyway.  The Tennessee Supreme Court’s effort to distinguish as “inapposite” TPPA-based claims from several other claims that Tennessee law holds courts may adjudicate post-nonsuit—including claims “involving sanctions under Rule 11 of the Tennessee Rules of Civil Procedure,” “an award of damages for a frivolous appeal under Tennessee Code Annotated section 27-1-122,” and “legislation concerning ‘abusive civil actions’”—also demonstrates the malleability of the judiciary’s approach to the question presented by itself.

In summary, as it has before, the Tennessee Supreme Court made a policy choice; here, to defang the TPPA and reward those who file SLAPP-suits in Tennessee with the freedom to do so without fear of incurring consequences.  The repercussions of that decision will be borne most heavily by the people who need the TPPA most—speakers of modest means who need lawyers to defend them on contingency—who will now be forced to incur significant debt to defend their speech; self-censor to avoid or end litigation; or defend themselves pro se.  No one should celebrate this policy choice, and Tennessee’s free speech protection scorecard has now been downgraded as a result of it.

Read the Tennessee Supreme Court’s unanimous ruling in Flade v. City of Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736 (Tenn. Oct. 9, 2024), authored by Justice Jeffrey Bivens, here:  https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-00553-SC-R11-CV.pdf.

Questions about this article?  Contact the author at daniel [at] horwitz.law.

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[1] Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum (June 15, 2020),  https://perma.cc/A8F4-FQ6G.

[2] Charles v. McQueen, 693 S.W.3d 262, 267 (Tenn. 2024).

[3] Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 670 (Tenn. Ct. App. 2021)

[4] By statute, a defending litigant can only recover expenses “incurred in filing and prevailing upon the petition[.]”  Tenn. Code Ann. § 20-17-107(a)(1).  Thus, not all expenses are compensable, so the provision falls slightly short of this goal.

[5] See, e.g., Stewart v. Univ. of Tennessee, 519 S.W.2d 591, 593 (Tenn. 1974) (“it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”); Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975) (“where a summary judgment is pending, the right to a nonsuit rests in the sound discretion of the trial judge.”).

[6] Flade v. Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736, at *13 (Tenn. Oct. 9, 2024).

Amended Complaints Supersede Earlier Complaints, Holds Tennessee Supreme Court

Civil Procedure

By Daniel A. Horwitz:

Procedural rules matter.  They help ensure that litigation moves along in an orderly and understandable way.  They can also be used as a shield and, when an opponent has misunderstood them, as a sword.

That is the story of Ingram v. Gallagher, a healthcare liability action (better known as a “medical malpractice” claim) filed against a physician, a hospital, and two other defendants.  After filing suit, the plaintiff filed an amended complaint naming only the physician as a defendant.  Under Tennessee law—Tennessee Rule of Civil Procedure 15.01, in particular—plaintiffs may amend once “as a matter of course” at any time before a responsive pleading has been served, so the plaintiff’s amended complaint became the operative pleading in the case immediately upon its filing.

Five minutes after amending his complaint, the plaintiff filed a notice of voluntary dismissal—often called a “nonsuit”—regarding the non-physician defendants.  He also tendered a proposed order dismissing those defendants without prejudice.  The intended purpose of the filing was to protect the plaintiff’s right to refile his claims against the dismissed defendants within the following year—something that Tennessee’s savings statute permits as a matter of right when a plaintiff has taken a nonsuit.  The trial court then entered the nonsuit order, which the plaintiff later sought to alter or amend so he could reinstate his claims against the other defendants.  The plaintiff also attempted to amend one of the earlier-dismissed defendants back into the case through another amended complaint several months later.

The problem with this approach, as a unanimous opinion authored by Justice Bivens explained, was that the plaintiff had already filed his first amended complaint, which eliminated any other defendants as parties, before he filed his nonsuit.  Under Tennessee law, the effect of an amended complaint is to “supersede[] and destroy[]” the original complaint as a pleading, essentially rendering it a nullity.[1]  Thus, after the plaintiff’s amended complaint was filed, there was only one defendant in the case.  And because of that, there were no other defendants for the trial court to dismiss from the action, rendering void both the plaintiff’s attempted nonsuit dismissing those defendants and the trial court’s order purporting to dismiss them.

The practical effect of this chronology was that the plaintiff could not seek to alter or amend the trial court’s nonsuit order, which was void.  By amending the other defendants out of his complaint, the plaintiff also functionally abandoned his claims against those defendants.  And because the issue of whether Tennessee’s savings statute applies to abandoned, rather than dismissed, claims is not entirely clear (the text of Tenn. Code Ann. § 28-1-105(a), which requires a “judgment or decree,” suggests that the answer is no), the Plaintiff’s subsequent attempt to reinstate his claims against one of the earlier defendants now risks being time-barred—an issue that lower courts will eventually have to sort out on remand.

Interestingly, nobody involved in the case appears to have noticed these issues, either.  The plaintiff certainly did not.  Neither, it seems, did the trial court.  Instead, the issue was apparently identified for the first time by the Tennessee Supreme Court after it accepted review, pretermitting its consideration of the issue that it had actually granted review to address: whether a voluntary dismissal of one of multiple defendants in a Governmental Tort Liability Act case may be set aside through a motion to alter or amend.  Due to a procedural misstep that risks foreclosing the plaintiff’s claims against that defendant on a different ground, though, that issue does not appear to matter in this case any longer.

Read the Tennessee Supreme Court’s unanimous ruling in Ingram v. Gallagher, No. E2020-01222-SC-R11-CV, 2023 WL 3487083 (Tenn. May 17, 2023), authored by Justice Jeffrey Bivens, here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20E2020-1222-SC.pdf

Questions about this article?  Contact the author at daniel [at] horwitz.law.

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[1] See, e.g., Hanson v. Levan, 647 S.W.3d 85, 90 (Tenn. Ct. App. 2021), appeal denied (Jan. 13, 2022).

If a Government Employee’s Negligence Kills You, the Government Will (Virtually) Never Have to Pay For It, Holds Tennessee Supreme Court

Appeals, Civil Procedure, Tort Law

By Daniel A. Horwitz:

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]

Assuming that at least one other Justice agrees that the Court should reconsider the continued viability of the public duty doctrine, that opportunity will come soon.  There are currently two cases pending in lower courts—one involving a woman’s preventable murder arising from Metro Nashville’s failure to enforce an order of protection, and another involving the preventable death of a pregnant woman who experienced a mental health event during a Metro police response—in which the claim that the public duty doctrine should be overruled has been expressly raised and preserved.

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.

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[1] Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011) (quoting Cooper v. Rutherford Cnty., 531 S.W.2d 783, 786 (Tenn.1975) (Henry, J., dissenting)).

[2] Cooper., 531 S.W.2d at 788–92 (Henry, J. dissenting).

[3] Hughes, 340 S.W.3d at 360.

[4] Ezell v. Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995).

[5] Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn. 1975).

[6] Ezell, 902 S.W.2d at 400.

[7] Ezell, 902 S.W.2d at 401.

[8] State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017) (citing Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016))

[9] Ezell, 902 S.W.2d at 401.

[10] Ezell, 902 S.W.2d at 402.

[11] See Tenn. Code Ann. § 29-20-205(2), 29-20-205(4), 29-20-205(6).

[12] Haynes v. Perry Cnty., No. M2020-01448-COA-R3-CV, 2022 WL 1210462, at *1 (Tenn. Ct. App. Apr. 25, 2022).

[13] State v. Deberry, 651 S.W.3d 918, 924 (Tenn. 2022) (emphasis added).

[14] Lawson, 2023 WL 2033336, at *12 (Kirby, J. concurring).

[15] Id.

Tennessee Court of Appeals Affirms Trial Court Order Invalidating School Board Censorship Clause in Ex-Director Shawn Joseph’s Severance Agreement

Appeals, Civil Procedure, Constitutional Law, Contract Law, First Amendment, Opinions, Tennessee Constitutional Law

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 Amy Frogge, 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.

Selected Case Documents:

*Tennessee Court of Appeals Opinion Affirming Summary Judgment and Awarding Appellate Fees

*Concurring Opinion Affirming Judgment

*Post-Remand Order Granting $110,000.00 Attorney’s Fee Award

*Order Granting Summary Judgment and Denying Defendants’ Motions to Dismiss

*Order Granting $58,543.52 Attorney’s Fee Award

–Principal Brief of Plaintiffs-Appellees

–Reply Brief of Plaintiffs-Appellees

–Plaintiffs’ Complaint

–Plaintiffs’ Memorandum in Support of Motion for Summary Judgment

–Metro Response/Joseph Response In Opposition to Summary Judgment

Selected Media Coverage:

-The Tennessean: Tenn. appeals court finds part of MNPS director Joseph’s severance deal unconstitutional

-Channel 5: Court invalidates censorship clause in MNPS former director Shawn Joseph’s termination contract

-Main Street Nashville: Court rules non-disparagement clause in termination contract was unconstitutional

-TCOG: Non-disparagement clause violates free-speech rights of Nashville school board members, court says

-The Tennessean: Judge finds part of MNPS director Shawn Joseph’s severance agreement ‘unconstitutional’

-Fox 17: Court order finds clause in ex-MNPS director’s contract is unconstitutional, unenforceable

-Channel 4: Judge rules censorship clause in former Director of School’s severance agreement unconstitutional

###

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.

The Tennessee Bureau of Investigation Lacks Authority to Violate Court Orders, Rules Tennessee Supreme Court

Civil Procedure, Constitutional Law, Criminal Law, Expungement,

“The determination of whether an offense is eligible for expunction is an obligation entrusted to courts, not the TBI[,]” the Tennessee Supreme Court has ruled.  Accordingly, “the TBI lacked authority to refuse to comply” with a final and unappealed expungement order that no statute “authorize[d] the TBI to disregard or revise[.]”  The Tennessee Supreme Court’s unanimous opinion powerfully vindicates expungement rights under Tennessee law, the right of Tennesseans to sue the government for acting illegally, and citizens’ right to demand that the government comply with court orders.

The case arose out of a years-old expungement order that was entered by agreement of a District Attorney and approved by a judge following a diversionary plea agreement.  When such an expungement order is entered, Tennessee law obligates the Tennessee Bureau of Investigation to process it within sixty days of receipt.  In lieu of complying with the court’s order, though—and at the urging of Tennessee Deputy Attorney General Scott Sutherland and other misbehaving members of his office—the TBI opted to violate it, believing that the order was wrong.  “But no statute grants the TBI authority to independently review and decline to comply with a final expunction order it considers erroneous,” the Tennessee Supreme Court explained.  Further, as the Plaintiff noted, “willfully disobeying a final court order at the urging of counsel is ‘lawless behavior that would land any other contemnor in jail and would subject any other attorney to professional discipline.’”

Along the way to reaching this holding, the Tennessee Supreme Court forcefully affirmed Tennesseans’ rights to sue the government for acting illegally.  As relevant to the case, in 2018, the Tennessee General Assembly enacted a critical new statute—Tennessee Code Annotated § 1-3-121—that established the right of “any affected person” to sue the government “regarding the legality or constitutionality of a governmental action.”  In full, Tenn. Code Ann. § 1-3-121 provides that:

“Notwithstanding any law to the contrary, a cause of action shall exist under this chapter for any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.  A cause of action shall not exist under this chapter to seek damages.”

Despite the clarity of this statute, the Tennessee Attorney General’s Office spent the next several years arguing in transparent bad faith that the statute was meaningless; that it did not mean what it said; and that it did not permit any lawsuits to be filed against state government at all.  But “[t]he General Assembly clearly and unmistakably waived sovereign immunity by enacting Tennessee Code Annotated section 1-3-121,” the Tennessee Supreme Court explained, and “[t]he plain meaning of this text expressly recognizes the existence of causes of action ‘regarding the legality or constitutionality of a governmental action’ that seek declaratory or injunctive relief.”  Accordingly, the Tennessee Supreme Court ruled that the Plaintiff’s lawsuit against the TBI and its Director for willfully violating a court order was permissible, and it ordered a lower court to grant the Plaintiff’s claim for injunctive and declaratory relief, which the court had to that point denied.

“We appreciate the Tennessee Supreme Court unanimously vindicating our client’s expungement rights,” said Horwitz Law PLLC attorney Daniel A. Horwitz, who represented the Plaintiff along with co-counsel Lindsay Smith.  “However, we are disturbed that the Tennessee Attorney General’s Office had to be reminded by a court yet again that its job is to uphold the law, not to encourage government officials to violate it.  Having engaged in lawless behavior that would land any other contemnor in jail and that would subject any other attorney to professional discipline, we hope that Director Rausch and Attorney General Slatery won’t need to be reminded again.”

The TBI and its Director, David Rausch—who asserted the government’s entitlement to violate court orders—were unsuccessfully represented in the case by attorneys Rob Mitchell (BPR 32266), Miranda Jones (BPR 36070), and Mallory Schiller (36191) of the Tennessee Attorney General’s Office.  In advance of the Tennessee Supreme Court’s unanimous reversal, they opposed appellate review in the case on the basis that “there is no probability of reversal.”  Contact them at @TNattygen.

The Parties’ oral argument in the case can be viewed here.  The Plaintiff’s briefing in the case is linked below.

Principal Brief: https://horwitz.law/wp-content/uploads/Principal-Brief-of-Appellant-Stampfiled.pdf

Reply Brief: https://horwitz.law/wp-content/uploads/Appellants-Reply-Brief.pdf

Read the Tennessee Supreme Court’s unanimous opinion in Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279 v. David B. Rausch, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation, authored by Justice Sharon G. Lee, here: https://www.tncourts.gov/sites/default/files/recipient.of_.finalexp.3279.opn_.pdf

The Spookiest Thing In Tennessee Today Is the Middle Division of the Tennessee Court of Appeals’ Refusal to Check Illegal Government Action

Civil Procedure, Constitutional Law, Tennessee Constitutional Law

By Daniel A. Horwitz

When Tennesseans head out to trick-or-treat this Halloween, they can expect to see all sorts of spooky things.  But while most Halloween frights are imaginary, there is one terror that should make all Tennesseans shudder: The Middle Division of the Tennessee Court of Appeals’ increasingly evident unwillingness to check illegal government action.

This problem—little recognized outside of the small circle of Tennessee public interest lawyers who sue the government—is genuinely frightening.  In the past few months alone, judges of the Middle Division of the Tennessee Court of Appeals have held that the government can circumvent judicial review of unconstitutional laws by enacting temporary new laws while refusing to disavow enforcement of the challenged ones.  The Tennessee Supreme Court has stepped in and granted review.  They have also refused review of whether the government can flagrantly, unapologetically, and deliberately violate final court orders.  Again, the Tennessee Supreme Court has stepped in and granted review.   Most recently, the Middle Division of the Tennessee Court of Appeals held that citizens who are subject to unconstitutional criminal speech restrictions cannot sue to challenge them before being arrested, reasoning—inexplicably—that even the Tennessee Court of Appeals’ own previous enforcement of the same statute in a civil case represented a “wrongful attempt[] to use [the statute] to establish civil liability,” and that a District Attorney sending a criminal threat letter should really be considered a “civil” matter.  “Ironically, the statute does not criminalize a favorable but knowingly false statement a candidate makes about himself/herself,” a trio of Middle Division judges quipped while reinstating the unconstitutional criminal speech restriction at issue.  What the panel was describing, of course, is called “viewpoint discrimination”—an “egregious form of content discrimination” that should offend the judiciary, rather than amuse it.  See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).  Further review of this similarly baffling government-friendly ruling is forthcoming, too.

What makes the Middle Division’s near-constant refusal to rule against the government when it acts illegally so inexplicable is that nobody else seems to struggle with the issue.  The Tennessee Supreme Court does its job of holding the government accountable when it breaks the law.  So do federal courts.  So do judges from other Divisions of the Tennessee Court of Appeals. So do Tennessee’s trial courts.  So, too, does even the Constitution-hating Tennessee General Assembly itself, which recently enacted a law stating that Tennessee’s judiciary must adjudicate claims filed by “any affected person who seeks declaratory or injunctive relief in any action brought regarding the legality or constitutionality of a governmental action.”  The Middle Division alone, however, is apparently unwilling to do so.

With this context in mind, any couple looking for a last-minute costume idea has one readily available: Illegal government action paired with the Middle Division of the Tennessee Court of Appeals.  Nothing in Tennessee today is quite as scary.

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Tennessee Court of Appeals Affirms First-Ever Anti-SLAPP Judgment Under the Tennessee Public Participation Act

Civil Procedure, Constitutional Law, Defamation, First Amendment, Judgments, Tort Law, ,

In a precedent-setting, unanimous ruling, the Tennessee Court of Appeals has affirmed the first trial court judgment ever issued under the Tennessee Public Participation Act, Tennessee’s recently enacted anti-SLAPP statute.  The ruling establishes several critical precedents for free speech law in Tennessee, and it represents a total victory for Wilson County woman Kelly Beavers, who has spent nearly two years defending her constitutional right to post a negative review on Yelp!.

“This precedent-setting victory for Ms. Beavers and her family sends a clear warning to anyone who would abuse the judicial process in an attempt to censor honest, critical consumer reviews and other constitutionally protected speech,” said Horwitz Law, PLLC attorney Daniel Horwitz, a First Amendment, anti-SLAPP, and speech defense lawyer who represented Ms. Beavers along with Sarah Martin.  “The First Amendment protects every person’s right to speak freely, and this ruling makes clear that the consequences for plaintiffs who file baseless defamation suits in Tennessee will be severe.”

The case at issue arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp! review.  After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience there, she exercised her First Amendment right to post a negative review on Yelp!, a popular consumer review website.  Dr. Nandigam threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused to do so.

After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed a Petition to Dismiss the Plaintiffs’ claims under the Tennessee Public Participation Act.  Ms. Beavers’ petition was granted, and the Tennessee Court of Appeals has now affirmed that dismissal in its entirety while ordering the Plaintiffs to pay Ms. Beavers’ legal fees and potential sanctions.  “As [Ms. Beavers] aptly notes in her principal brief, ‘the TPPA . . . was designed to prevent and deter such abuse, not to enable it,'” the Court of Appeals ruled.  Ms. Beavers’ claims for attorney’s fees and sanctions against Dr. Nandigam remain pending and will be adjudicated upon remand.  The Court of Appeals’ opinion additionally orders that: “We remand this matter to the general sessions court for a determination of the proper amount of reasonable fees incurred by Defendant during this appeal” as well.

Read the Tennessee Court of Appeals’ unanimous ruling in Nandigam Neurology, et al. v. Kelly Beavers here: https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf

 

The “Tennessee Public Participation Act”⁠—Tennessee’s First-Ever Meaningful Anti-SLAPP Law⁠—Takes Effect Today

Civil Procedure, Constitutional Law, Defamation, First Amendment, Tort Law

By Tennessee First Amendment, Speech Defense, and Anti-SLAPP Lawyer Daniel Horwitz:

If you woke up this morning feeling freer to speak your mind, there’s a reason: A little-noticed law with huge free speech benefits takes effect today. As of July 1, 2019, the “Tennessee Public Participation Act”—Tennessee’s first-ever meaningful Anti-SLAPP law—became effective and affords those who are sued for their speech a host of critical legal benefits.

Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts. When faced with the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.

It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have also been disturbingly effective.

To provide a counterbalance to the financial threat posed by bogus defamation lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal protections, all of which are critical to safeguarding free speech and promoting the free exchange of information and ideas. First, Anti-SLAPP laws help deter bad actors from filing baseless lawsuits against people for lawfully exercising their free speech rights in the first place. Second, the best Anti-SLAPP laws provide people who are sued for exercising their First Amendment rights an efficient and expeditious means of getting frivolous speech-based lawsuits dismissed quickly. Third, Anti-SLAPP laws commonly provide a mechanism to punish abusive litigants and attorneys who file baseless defamation claims with significant monetary sanctions. Fourth, Anti-SLAPP laws frequently give people who are sued for exercising their free speech rights the right to recoup whatever attorney’s fees and court costs they incurred for having to defend against a meritless speech-based lawsuit.

Happily, beginning today, Tennessee now boasts an Anti-SLAPP law that affords speakers all of these benefits. Until today, Tennessee only had a limited Anti-SLAPP law that was narrowly restricted to statements made to government agencies.  Fortunately, though, earlier this year, Tennessee enacted the “Tennessee Public Participation Act” to protect Tennesseans’ right to free speech, which became effective July 1, 2019.  Thus, from today onward, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.

The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against speech-based lawsuits, including defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.”  Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.

Censorship has always been rampant, and it comes in many forms—from firing people who speak out about misconduct in the workplace to libel and slander lawsuits. More than anything, in recent years, the permanence of the internet combined with the reach and speed of social media have made it more attractive than ever to try to censor others through the legal system before harmful information—whether accurate or not—reaches every corner of cyberspace. The good news is that the Tennessee Public Participation Act will now afford significant protection to people who speak out about topics like abuse and other important issues. The text of the law appears below.

The Tennessee Public Participation Act (Effective July 1, 2019):

20-17-101. This chapter shall be known and may be cited as the “Tennessee
Public Participation Act.”

20-17-102. The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.

20-17-103. As used in this chapter:

(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;

(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;

(3) “Exercise of the right of free speech” means a communication made
in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;

(4) “Exercise of the right to petition” means a communication that falls
within the protection of the United States Constitution or the Tennessee Constitution and:

(A) Is intended to encourage consideration or review of an issue
by a federal, state, or local legislative, executive, judicial, or other
governmental body; or

(B) Is intended to enlist public participation in an effort to effect
consideration of an issue by a federal, state, or local legislative,
executive, judicial, or other governmental body;

(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;

(6) “Matter of public concern” includes an issue related to:

(A) Health or safety;

(B) Environmental, economic, or community well-being;

(C) The government;

(D) A public official or public figure;

(E) A good, product, or service in the marketplace;

(F) A literary, musical, artistic, political, theatrical, or audiovisual
work; or

(G) Any other matter deemed by a court to involve a matter of
public concern; and

(7) “Party” does not include a governmental entity, agency, or employee.

20-17-104.

(a) If a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.

(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.

(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.

(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

20-17-105.

(a) The petitioning party has the burden of making a prima facie case
that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.

(b) If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.

(c) Notwithstanding subsection (b), the court shall dismiss the legal
action if the petitioning party establishes a valid defense to the claims in the legal action.

(d) The court may base its decision on supporting and opposing sworn
affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.

(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.

(f) If the court determines the responding party established a likelihood of prevailing on a claim:

(1) The fact that the court made that determination and the
substance of the determination may not be admitted into evidence later in
the case; and

(2) The determination does not affect the burden or standard of
proof in the proceeding.

20-17-106. The court’s order dismissing or refusing to dismiss a legal action
pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.

20-17-107.

(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:

(1) Court costs, reasonable attorney’s fees, discretionary costs,
and other expenses incurred in filing and prevailing upon the petition; and

(2) Any additional relief, including sanctions, that the court
determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.

(b) If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.

20-17-108.  Nothing in this chapter:

(1) Applies to an enforcement action that is brought in the name of the
state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney;
(2) Can result in findings or determinations that are admissible in
evidence at any later stage of the underlying legal action or in any subsequent legal action;
(3) Affects or limits the authority of a court to award sanctions, costs,
attorney’s fees, or any other relief available under any other statute, court rule, or other authority;
(4) Affects, limits, or precludes the right of any party to assert any
defense, remedy, immunity, or privilege otherwise authorized by law;
(5) Affects the substantive law governing any asserted claim;
(6) Creates a private right of action; or
(7) Creates any cause of action for any government entity, agency, or
employee.

20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.

20-17-110. If any provision of this chapter or the application thereof to any
person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.

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Tennessee’s Medical Malpractice Statute Traps Another Plaintiff

Civil Procedure,

Tennessee Supreme Court holds that the Health Care Liability Act’s statute of limitations is not extended if a plaintiff sends pre-suit notice to the wrong defendant.

By Daniel A. Horwitz

Tiffinne Runions, a Madison County mother who lost her child five days after childbirth, has also lost her day in court based on a misaddressed pre-suit notice.  As a result, Ms. Runions’ lawsuit did not fail based on a judge or jury rejecting the merits of her claim that “the defendants’ negligent conduct . . . caused the baby’s death.”  Instead, her lawsuit never even made it past the courthouse doors due to her attorney’s mistake about who owned the hospital that delivered her baby.

Over the past decade, one medical malpractice claim after another in Tennessee has been derailed following plaintiffs’ unsuccessful attempts to comply with certain pre-suit notice requirements mandated by Tennessee’s Health Care Liability Act (HCLA).  As a result, the Tennessee Supreme Court’s unanimous decision to dismiss Ms. Runions’ lawsuit even before its merits could be considered represents only the latest casualty in a long line of medical malpractice cases—known as “healthcare liability” claims in Tennessee—that have been doomed from their inception due to attorneys’ procedural mistakes.

As this author previously explained in a 2015 Nashville Bar Journal article:

In 2009, interest groups representing both healthcare providers and injured patients worked together “to draft and pass” several amendments to Tennessee’s medical malpractice statute that aimed to improve medical malpractice litigation for all involved.  According to the Tennessee Supreme Court, the goals of the 2009 amendments were “to give defendants written notice that a potential healthcare liability claim may be forthcoming,” to “facilitate early resolution of healthcare liability claims,” and to “equip[] defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.”  To accomplish these goals, the legislature required medical malpractice plaintiffs to satisfy six pre-suit “notice requirements,” and it further required plaintiffs to file a “certificate of good faith” with their complaints in cases in which expert testimony would eventually be required.

Due to the myriad technical dismissals that resulted from these reforms, however, the 2009 amendments unexpectedly turned out to be red tape with fangs for medical malpractice plaintiffs. . . .  Thus, what began as a laudable effort to improve medical malpractice litigation in Tennessee has instead created new procedural barriers that cause many cases to be dismissed on grounds that are completely unrelated to the merits of a plaintiff’s claim.[1]

Critically, the HCLA provides that a plaintiff who complies with the statute’s mandatory pre-suit notice requirements automatically receives a 120-day extension to the one-year statute of limitations for filing suit.  In theory, this extension benefits both parties by affording them a longer period of time to negotiate a potential settlement before contentious litigation begins.  In practice, however, the extension functions as a “fatal booby trap for unwary plaintiffs,” because “if a plaintiff’s attorney has erred in complying with one or more of the HCLA’s pre-suit notice requirements, then he almost invariably will not discover his error until the initial one-year statute of limitations has expired.”[2]

The Court’s opinion in Runions v. Jackson-Madison County General Hospital District makes clear that this “fatal booby trap” has just claimed another victim.  In Runions, the aggrieved mother (or, more accurately, her attorney) attempted to comply with all of the HCLA’s pre-suit notice requirements before filing her lawsuit.  Critically, however, her attorney made one significant misstep: he misidentified the hospital’s owner and operator.  As the Court explains:

“Ms. Runions knew that she and her baby received medical treatment at Jackson-Madison County General Hospital, but she did not correctly identify the District as the owner and operator of Jackson-Madison County General Hospital.  Instead, she identified and gave pre-suit notice to Bolivar General Hospital, Inc.; West Tennessee Healthcare, Inc.; and West Tennessee Healthcare Network through their registered agent, Ms. Higgs, who also served as general counsel for the District.”

Upon discovering the error, “Ms. Runions moved to amend her complaint to substitute the District for Bolivar General Hospital, Inc. d/b/a Jackson-Madison County General Hospital.”  Normally, permitting such an amendment is standard practice; Tennessee Rule of Civil Procedure 15.01 makes clear that permission to amend pleadings should be “freely given” early on in a case, and the error at issue in Ms. Runions’ case was identified almost immediately.  Additionally, when a plaintiff has sued the wrong party, Tennessee Rule of Civil Procedure 15.03 provides further that “[a]n amendment changing the party or the naming of the party by or against whom a claim is asserted” should be treated as if it occurred on the date when the plaintiff’s original complaint was filed.

The entire purpose of Tennessee Rule of Civil Procedure 15.03 is to prevent a claim from becoming time-barred by the statute of limitations due to a mere “mistake concerning the identity of the proper party.”  In Runions, however, by the time the mistake was discovered, the harm was incurable.

After providing pre-suit notice to the hospital, Ms. Runions’ attorney believed that the statute of limitations had been extended by 120 days based on the HCLA’s automatic extension provision.  Because her pre-suit notice had identified the wrong hospital owner, however, the extension was never triggered—something that she did not discover until it was too late.  Accordingly, by the time that Ms. Runions learned that her pre-suit notice was defective, the one-year, unextended statute of limitations had already elapsed, and Ms. Runions’ lawsuit was forever time-barred.

As this author has previously noted, this framework conflicts with both Tennessee law generally and the stated purposes of the HCLA specifically.  From a broad perspective, “Tennessee law reflects a longstanding, consistent public policy that favors resolving litigation on its merits, rather than promoting dismissals based on purely procedural grounds.”[3]  Further, based on an information asymmetry concerning whether the applicable statute of limitations has been extended, mandating strict compliance with the HCLA’s notice provisions in order to trigger the 120-day extension “function[s] to undermine dialogue between litigants by creating perverse litigation incentives that facilitate only mock settlement negotiations and delusive discovery.”[4]  As a result, significant reform is in order.

Notably, although Ms. Runions will not be able to pursue a medical malpractice claim against the hospital that delivered her child, she may well be able to pursue a legal malpractice claim against the attorney who represented her.  According to practitioners in the space, such claims are rapidly increasing in frequency.  Indeed, given how easily attorneys can find themselves on the receiving end of such claims due to the HCLA’s significant procedural complexities, most plaintiff’s lawyers no longer take medical malpractice cases at all.

Read the Tennessee Supreme Court’s unanimous opinion in Tiffinne Wendalyn Gail Runions v. Jackson-Madison County General Hospital District, authored by Justice Sharon G. Lee, here.

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[1] Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577156 (citations omitted).

[2] Id. at 3.

[3] Id. at n. 28 (citing  Brown v. Samples, No. E2013-00799-COA-R9-CV, 2014 WL 1713773, at *8 (Tenn. Ct. App. Apr. 29, 2014) (collecting cases and holding that “Tennessee courts have long recognized that the interests of justice are promoted by providing injured persons an opportunity to have their lawsuits heard and evaluated on the merits”); Givens v. Vanderbilt Univ., No. M2013-00266-COA-R3-CV, 2013 WL 5773431, at *4 (Tenn. Ct. App. Oct. 24, 2013) (“We conclude that section 121 does not require a court to dismiss a complaint with prejudice for noncompliance with the notice requirement of that section. This conclusion is in keeping with the general principle that ‘Tennessee law strongly favors the resolution of all disputes on their merits.’” (quoting Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn.1996))); Bowers v. Gutterguard of Tennessee, Inc., M2002-02877-COA-R3-CV, 2003 WL 22994302, at *5, (Tenn. Ct. App. Dec. 17, 2003) (“[I]t is the general rule that courts are reluctant to give effect to rules of procedure . . . which prevent a litigant from having a claim adjudicated upon its merits.” (quoting Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991))). See also Chambers, 2014 WL 1266101 at *5.).

[4] Id. at p. 7.

Tennessee Advisory Committee to the U.S. Commission on Civil Rights Holds Comprehensive Hearing on Civil Asset Forfeiture

Civil Procedure, Constitutional Law, Fourth Amendment, ,

By Daniel A. Horwitz

In what may well have been the most comprehensive hearing on civil asset forfeiture ever held, the Tennessee Advisory Committee to the U.S. Commission on Civil Rights held a day-long hearing on Tennessee’s forfeiture laws at the Nashville Public Library on Monday, July 24th.  The hearing featured testimony from District Attorneys past and present, police officers, legislators, attorneys, scholars, local and national advocacy groups, individuals affected by Tennessee’s forfeiture laws, and others interested in the topic.  Video footage of the Committee’s hearing is available at the links that follow:

U.S. Commission Opening Remarks and Introduction

Panel 1—Law Enforcement

Panelists: Glenn R. Funk (District Attorney, Nashville and Davidson County);  D. Michael Dunavant (District Attorney, Tennessee’s 25th Judicial District, President Trump’s nominee for U.S. Attorney for the Western District of Tennessee); Stephen D. Crump (District Attorney, Tennessee’s 10th Judicial District); Carlos Lara (Lieutenant, Metro Nashville Police Department)

Panel 2—Legislators

Panelists: State Representative Mike Carter (R-Ooltewah); State Representative John Ray Clemmons (D-Nashville); State Representative William G. Lamberth (R-Cottontown); State Representative Martin Daniel (R-Knoxville); State Representative Harold M. Love, Jr. (D-Nashville); State Representative G.A. Hardaway (D-Memphis)

Panel 3—National and State Organizations

Panelists: Vikrant Reddy (Senior Research Fellow, Charles Koch Institute); Lee McGrath (Senior Legislative Counsel, Institute for Justice); Hedy Weinberg (Executive Director, ACLU of Tennessee); Julie Warren (State Director, Tennessee/Kentucky Right on Crime)

Panel 4—Practitioners and Academics

Panelists: George Frank Lannom (Tennessee Association of Criminal Defense Lawyers);  Joy Radice (Professor of Law, University of Tennessee College of Law); John Morris Miles (Attorney, Union City); Ben Raybin (Attorney, Nashville); Kyle Mothershead (Attorney, Nashville); Elliot Ozment (Attorney, Nashville)

Panel 5—Advocacy Organizations

Panelists: Jackie Sims (Tennessee State Conference of the NAACP); Christopher M. Bellamy (President, Napier-Looby Bar Association); Samuel Lester (Street Outreach and Advocacy Coordinator, Open Table Nashville)

The hearing record will remain open for public comment until August 23, 2017.  If you would like to submit comments for consideration, please email Jeff Hinton, Southern Regional Director for the U.S. Commission on Civil Rights, at [email protected].  Following the conclusion of the public comment period, the Tennessee Advisory Committee will consider all commentary and prepare a final report and recommendation.

Selected press coverage of the hearing is available below.

-Fox 17:  Tenn. Attorneys say law enforcement wrongfully benefits from drug seizures

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