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.
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.
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.
In 2019, Tennessee’s free speech law underwent a sea change. The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts. Due to a recent decision out of Hamilton County, the constitutionality of the TPPA has now been expressly affirmed. After nearly two years, it is also clear that the TPPA is working as intended “to encourage and safeguard the constitutional rights of persons to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law. . .” See Tenn. Code Ann. § 20-17-102.
Bedsole v. Sinclair Broadcast Group, Inc. is a defamation lawsuit concerning the TV show “Tiny House Nation.” After being sued, the defendants in that case raised claims for dismissal under the TPPA. In response, the plaintiff asserted that the TPPA was unconstitutional in its entirety based on the Tennessee Constitution’s separation of powers doctrine. Thus, in late February 2021, the Hamilton County Circuit Court held a hearing on the contested constitutionality of the statute.
There are, of course, several immediate problems with any broad claim that the Tennessee Public Participation Act is “unconstitutional.” To begin, the TPPA is a collection of statutory provisions, not a single statute. It has many different features—an automatic stay on discovery provision, fee-shifting and discretionary sanctions provisions, an interlocutory appeal provision, and several other provisions—all of which function independently. Several of those provisions also are not even theoretically unconstitutional, and there is no serious argument otherwise. More generally, anti-SLAPP statutes like the TPPA—which is narrowly tailored to preserve judicial discretion—also promote compelling public interests and serve as an essential tool to protect the oft-ignored rights of third parties.
Upon review, the Hamilton County Circuit Court issued a short but forceful ruling affirming the TPPA’s constitutionality. “The TPPA, at least in the eyes of this Court, is clearly predicated upon public policy concerns,” the Court explained. “There can be no serious questions that the intent of the legislature in passing this statute was to effect a more beneficial public policy.” Further, “the over-arching purpose of the statute”—“to provide protection to [Tennessee’s] citizens from SLAPP lawsuits”—“do[es] not mandate any particular result but leave[s] the ultimate decision within the discretion of the trial court.” Indeed, the Court noted, “the statute actually broadens the court’s authority to move past the very low requirements of Rules 8 and 12, and to impose attorney’s fees following a burden shift not previously available to the litigants.” Thus, the Court held, “the constitutional challenge of the Plaintiff is DENIED.”
To be sure, this ruling is excellent news for anyone who cares about free speech in Tennessee. Before the TPPA was enacted,bad actors could credibly threaten to impose tens—if not hundreds—of thousands of dollars’ worth of litigation expenses in SLAPP-suits over a period of several years if their baseless retraction or other demands were not met in legally frivolous speech-based tort cases. That is no longer true, given the very real possibility that a plaintiff who files a SLAPP-suit will be ordered to pay the other side’s legal fees and could potentially be sanctioned. The end result is that negotiating power has flipped, outcomes have dramatically improved, and any number of SLAPP-suits have been avoided entirely because plaintiffs were not willing to risk the severe consequences associated with filing one. Speech defense attorneys (like the author) are also able to defend against SLAPP-suits on a contingent basis now, rather than having to do so on a pro bono basis when a defendant cannot afford to pay for a vigorous defense.
The evidence that the TPPA is working as intended is also indisputable at this juncture. To date, TPPA petitions have been granted in four total cases:
This lawsuit against a woman who posted a negative Yelp! review about a business (fees and sanctions pending appeal);
This lawsuit against a woman who called 911 and sought an order of protection ($26,500.00 fees and sanctions award);
This lawsuit against three community activists who criticized a congressional candidate ($39,000.00 fees and sanctions award); and
This lawsuit regarding charges of animal cruelty (fees and sanctions TBD).
Why, specifically, is the TPPA so effective? The answer is “for several reasons,” but the following three changes are instructive:
1. Prior to the TPPA being enacted, no matter how much money a plaintiff forced a defendant to spend on legal fees in order to defend against a bogus SLAPP-suit, a prevailing defendant’s ability to recover his or her legal expenses after securing a dismissal and then upholding the dismissal through appeal was capped at $10,000.00. That is no longer the case, because under the TPPA, defendants who are subjected to baseless SLAPP-suits can recover their full legal fees and be made whole after winning. That difference has also had enormous practical consequences when it comes to negotiating power and settlement leverage, and it enables rapid dismissals by agreement in cases that might otherwise have lasted years.
2. Prior to the TPPA being enacted, plaintiffs could impose massive litigation costs and expenses and subject defendants to intrusive discovery simply by making baseless allegations that they did not have to substantiate with evidence until much later in a case. That is no longer true, either, because the TPPA allows defendants who are subjected to speech-based lawsuits to force plaintiffs to come forward with admissible evidence to substantiate their claims immediately. If a plaintiff cannot or does not do so, the plaintiff’s lawsuit will be dismissed with prejudice, and the plaintiff will be ordered to pay the defendant’s full legal fees.
3. Trial court judges make mistakes from time to time, and prior to the TPPA being enacted, an erroneous trial court ruling that a cognizable claim for defamation had been alleged could take years to correct—forcing defendants to go through intrusive and costly discovery or even a full-blown trial in the interim. As a consequence, an incorrect trial court ruling frequently had the effect of coercing defendants to settle baseless SLAPP-suits just to avoid the cost and stress of litigation. Now, however, defendants who are subjected to frivolous speech-based lawsuits have a right to take an immediate interlocutory appeal to the Court of Appeals and avoid such expenses by getting damaging trial court errors corrected early.
Even with the TPPA in place, of course, competently defending against defamation and other speech-based lawsuits remains a complex and expensive proposition that requires specialized expertise. Definitionally, the type of people who file SLAPP-suits—and the lawyers who take their cases—are also willing to abuse the legal process in order to censor, intimidate, and retaliate against critics, which means that such cases invariably involve unethical and abusive people as a matter of course. There are also a disturbingly large number of ways that the legal system can be abused successfully by bad actors and unethical people generally, so it remains important to have a competent speech defense lawyer who can effectively push back.
The good news, though, is that with the TPPA in place, litigants’ ability to impose legal consequences now goes in both directions. Plaintiffs who file SLAPP-suits can now be forced to pay very large sums of money to the people they have baselessly sued as well. As detailed above, that has happened already, and while certain gaps in speech-based protections remain, it will continue to happen as long as the TPPA remains in effect. This is good news for everyone who cares about the right to speak freely, as well as the right to hear what others have to say.
Few would disagree that the government shouldn’t be permitted to act illegally. In a frighteningly large number of instances, though—due to outmoded doctrines like sovereign immunity, qualified immunity, and absolute immunity for certain government officials—the government can act illegally without experiencing legal consequences for doing so. The result of that legal construct is that government officials are often free to violate state statutes or provisions of the Tennessee Constitution and the U.S. Constitution without risk, leaving those who are victimized by governmental misconduct unable to do anything about it.
Happily, in 2018, the Tennessee General Assembly enacted a little-noticed law that has had profound practical effects. Codified at Tenn. Code Ann. § 1-3-121, it 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.”
As a result of Tenn. Code Ann. § 1-3-121, it is now possible for victims of governmental misconduct in Tennessee to obtain certain forms of relief—specifically, declaratory judgments and injunctions—regarding illegal or unconstitutional governmental actions. And obtain relief under Tenn. Code Ann. § 1-3-121 they have. As a few examples:
1. Tennessee’s Bureau of Ethics and Campaign Finance, Registry of Election Finance has been permanently enjoined from enforcing an unconstitutional law that allowed partisan political action committees to participate in the political process just before an election, while prohibiting non-partisan political action committees from doing the same.
2. Metro Nashville and its ex-Director of Schools have been permanently enjoined from enforcing a contractual gag order against dissenting School Board Members that prevented them from criticizing the ex-Director of Schools—a provision that was also declared illegal as a violation of the First Amendment and multiple state provisions.
3. A criminal law that exclusively prohibited “false” statements about political candidates—including satire and parody—in campaign literature has been declared unconstitutional under the First Amendment.
4. The Tennessee Board of Cosmetology and Barber Examiners has been permanently enjoined from enforcing a law that prevented a man from working as a barber solely because he did not have a high school diploma. And:
5. The State of Tennessee has been permanently enjoined from implementing a selectively-targeted school voucher law in violation of the Home Rule provision of the Tennessee Constitution.
These examples are not exhaustive. For example, a lawsuit is presently pending under Tenn. Code Ann. § 1-3-121 to enjoin notorious private prison operator CoreCivic from systematically refusing to maintain a constitutionally adequate level of inmate safety and systematically failing to provide inmates constitutionally adequate health care at its scandal-prone Trousdale Turner Correctional Center. Additionally, even failed lawsuits—like a lawsuit filed by the Tennessee Democratic Party and U.S. Senate candidate Marquita Bradshaw regarding public records access—have been adjudicated on their merits due to Tenn. Code Ann. § 1-3-121, rather than being dismissed upfront based on the premise that the government cannot be sued at all.
All of this is great news if you believe that the government should be held accountable for breaking the law. To be sure, though, enacting Tenn. Code Ann. § 1-3-121 should not actually have been necessary. At least since the Tennessee Supreme Court’s decision in Colonial Pipeline Company v. Morgan—a 2008 opinion addressing litigants’ right to sue the government for declaratory and injunctive relief regarding constitutional violations—it has been clear that “sovereign immunity simply does not apply to a declaratory judgment action challenging the constitutionality of a statute against state officers.” That decision, however, did not stop Tennessee’s flagrantly dishonest and democracy-hating Attorney General from arguing that the Tennessee Supreme Court’s decision should be ignored and that such claims should be disallowed anyway.[1] Thus, the General Assembly felt compelled to make clear, beyond any serious dispute, through Tenn. Code Ann. § 1-3-121 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.” Remarkably, the Attorney General’s Office continues to argue that such lawsuits still should not be allowed regardless of what Tenn. Code Ann. § 1-3-121 unambiguously says on the matter. Unsurprisingly, those arguments have not proven successful.
Tenn. Code Ann. § 1-3-121 also falls short in a critical respect. In particular, it makes clear that “[a] cause of action shall not exist under this chapter to seek damages.” Consequently, because damages generally are not allowed in Tennessee for state constitutional or statutory violations under any other provision, either, many individuals who are deprived of their rights or injured by illegal governmental conduct are left without a complete remedy. Thus, to ensure that the government can be held fully accountable and deprived of any incentive to act illegally, there remains work left to be done to vindicate the Tennessee Constitution’s still-illusory guarantee that: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
Nonetheless, it is clear at this point that Tenn. Code Ann. § 1-3-121 has ushered in a new era of governmental accountability across Tennessee. Thus, to everyone except government officials who behave illegally: Happy 1-3-121 Day to you and yours.
[1] When pressed during oral argument on the issue in the past, the Office of the Attorney General has been somewhat more candid about its actual position on the matter: It believes that “Colonial Pipeline was wrongfully decided,” and that it “is an overbroad decision.” See Transcript of Aug. 17, 2018 Hearing in Zarate v. The Tennessee Board of Cosmetology and Barber Examiners, Davidson County Chancery Court Case No. 18-534-II, p. 11, lines 9–13.
In an order issued earlier this afternoon, Davidson County Chancery Court Judge Ellen Hobbs Lyle ruled in favor of Plaintiffs Amy Frogge, Fran Bush, and Jill Speering, who earlier this year sued Metro and ex-MNPS Director Shawn Joseph over the legality of the School Board censorship clause contained in Joseph’s severance agreement. In a Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.
Among other things, the 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, the clause was invalidated as unenforceable. Metro and Joseph will additionally be required to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which have been pledged to charity.
“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 Horwitz, who represented all three Plaintiffs. “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.”
Daniel Horwitz is a First Amendment lawyer who represents clients across Tennessee.
Earlier this month, the Tennessee Higher Education Commission voted 8-5 to deny Middle Tennessee State University’s proposal to add a law school to its higher education offerings. Given that Tennessee’s only existing public law schools are located in Memphis and Knoxville, MTSU’s proposal would have added the first and only public law school option to the Middle Tennessee area. Its addition would also have introduced substantial competition into the low-cost segment of Middle Tennessee’s strictly private law school market, which is currently failing to produce.
Blasting criticism of the proposal, MTSU President Sidney A. McPhee called on the Commission to reject the “cartel-like view” that its role was to inhibit competition. Opponents of the plan also appeared to make his point for him. For instance, in urging the Commission to vote down a law school at MTSU, WPLN reports that “[t]he biggest critics of the transfer came from lawyers and law schools in Memphis and Knoxville, where the state’s only other public law schools are located.” Other critics decried the fact that another school in the city: (1) “would take away from other schools’ ability to compete,” (2) “would saturate an already dense legal labor market,” (3) “would make it even more difficult for law school graduates to find work,” and (4) would “insert more law school graduates into an already crowded job market.”
The extent to which “the biggest” critics’ interests in stifling competition factored into the Higher Education Commission’s decision to vote down MTSU’s proposal is not clear. What is clear, however, is that if concerns about enhanced competition in the legal industry or the private law school market—something that uniformly benefits consumers by affording them more choices and lower prices—played any role at all, the Higher Education Commission’s decision was not lawful. Specifically, although Tennessee regulators appear to be unaware of this fact, a vast body of law instructs that raw economic protectionism is an illegitimate governmental interest, and that under both federal and state law, governmental action aimed solely at inhibiting competition is illegal.
In 2002, the United States Court of Appeals for the Sixth Circuit held for the first time that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1] As far as state law is concerned, the Tennessee Supreme Court has long held that protectionism is forbidden by the Tennessee Constitution as well. In the 1956 case Consumers Gasoline Stations v. City of Pulaski, for instance, the Tennessee Supreme Court held that “[a]lthough [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2] A wealth of additional state precedent spanning more than a century also supports this premise.[3]
With this context in mind, if attempts to stifle competition in the private Middle Tennessee law school market or in the legal industry more broadly played any role in the Commission’s 8-5 decision to reject MTSU’s proposal to add a law school, then MTSU is entitled to a new hearing. Just as unconstitutional hostility to a litigant’s religious beliefs cannot play a role in an administrative proceeding, nor can unconstitutional hostility to competition factor into the Higher Education Commission’s decisions. Given the prominent and visible role that raw economic protectionism of private industry appears to have played in the Commission’s decision to vote down a law school at MTSU, however, the school should seriously consider its right to appeal.
[1]Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).
[2]Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956).
[3]See, e.g., Harbison v. Knoxville Iron Co., 53 S.W. 955, 957 (Tenn. 1899) (“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.”); Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 806 (Tenn. 2015) (noting Tennessee’s established public policy favoring citizens’ “access to employment and the ability to earn a livelihood.”).
Briefing is officially complete in Gluzman v. Tennessee Board of Law Examiners—the case of the “obviously very, very qualified” Vanderbilt Law School student who graduated Vanderbilt with an eye-popping 3.919 GPA but was still denied even the opportunity to take the Tennessee bar exam because he earned his undergraduate degree and his first law degree in his birth country of Argentina. The case is now awaiting a ruling from the Tennessee Supreme Court.
While his case has been pending, Mr. Gluzman took and passed the New York bar exam on his first attempt. However, rather than uprooting his family unnecessarily, he still hopes to be able to take the bar exam in Tennessee and practice law near his wife’s business in Memphis.
The briefing in Gluzman v. BLE features the involvement of three leading national conservative groups, which have argued that the Board’s crippling regulations violate Mr. Gluzman’s fundamental right to earn a living free from irrational government overreach. Tennessee’s two flagship law schools—Vanderbilt Law School and the University of Tennessee College of Law—also filed petitions in the case after seeing students disenroll from their law programs once the Board began implementing its new protectionist regulations. All parties’ briefs in the case are available below.
Mr. Gluzman’s battle against the Tennessee Board of Law Examiners has attracted national media attention due in part to the Board’s refusal to permit Mr. Gluzman and other lawyers “from the vast majority of countries around the world” from ever being able to take the Tennessee bar exam regardless of their qualifications. In Mr. Gluzman’s case, the Board’s policy is also particularly difficult to justify, because the Board itself has formally acknowledged that Mr. Gluzman is “obviously a very, very qualified person.” Selected news coverage about the case is available below.
In a common-sense opinion that clarified a muddled conflict among lower courts, the Tennessee Supreme Court has held that fee-shifting provisions in divorce agreements must be enforced as written. Offering a forceful defense of the right to contract, Chief Justice Bivins’ unanimous opinion in Eberach v. Eberach instructs all lower courts that they do not have any discretion to deny attorney’s fees to a prevailing party if a contract agreed to by both parties makes such an award mandatory.
Eberach involved litigation between a former husband and wife following their divorce. In 2011, the couple divorced and entered into a “marital dissolution agreement,” or “MDA.” In lay terms, an MDA is a binding contract that sets out the terms of a divorce. Among other things, the parties’ MDA provided that:
“In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.”
Three years later, the ex-couple found themselves embroiled in litigation over the wife’s plan to relocate to Ohio with their three children. Ultimately, the trial court granted the wife permission to move to Ohio and awarded her $20,000.00 in attorney’s fees. Thereafter, the trial court’s decision was affirmed by the Court of Appeals, which upheld both the relocation and the trial court’s fee award. However, the Court of Appeals declined to award the wife additional compensation for the attorney’s fees that she had incurred on appeal.
Upon review, the Tennessee Supreme Court observed that various tribunals of the Court of Appeals had “been inconsistent in their analysis of claims for attorney’s fees in cases in which the claim is based on a contractual provision in a MDA.” One line of cases held that appellate courts have discretion to deny attorney’s fees to a prevailing party “even in the face of a controlling contractual fee provision requiring such an award.”[1] Another line of authority held that “when a MDA fee provision mandates an award of attorney’s fees to the prevailing party, the Court of Appeals does not have discretion to deny an award of appellate attorney’s fees.”[2] Additionally, a third line of cases “observed that an award of appellate attorney fees in Tennessee is within the court’s sound discretion,” but then went on “to award attorney’s fees on appeal solely on the basis of the parties’ MDA fee provisions without further discussion.”[3]
Clarifying this conflicting precedent, the Tennessee Supreme Court instructed with unmistakable clarity that “parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement that provides the prevailing party in a [lawsuit] is entitled to such fees.” “In such cases,” the Court explained, trial courts “do[] not have the discretion to set aside the parties’ agreement and supplant it with its own judgment.” The Court further instructed that “[t]he same is and must be true of our appellate courts.” Thus, “[a]bsent fraud, mistake, or some other defect, our courts are required to interpret contracts as written.”
As a general matter, litigants in the United States must pay their own attorney’s fees regardless of whether they win or lose. Under this so-called “American Rule”—to which Tennessee adheres—“a party in a civil action may recover attorney’s fees only if: (1) a contractual or statutory provision creates a right to recover attorney’s fees; or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case.”[4] “Otherwise,” as the Eberach court observed, “litigants are responsible for their own attorney’s fees.” Of note, the general presumption that parties must bear their own legal fees places the United States at odds with the legal regimes of many European nations, which generally adhere to a “loser pays” framework.
The most common exception to the American rule is a private agreement between parties which provides that in the event of litigation, the loser must pay the winner’s attorney’s fees. Significantly, in Eberach, the husband and wife had executed such an agreement. Thus, the only question presented in Eberach was whether the Court of Appeals was required to enforce it.
Emphatically answering this question in the affirmative, the Court’s opinion in Eberach furthers Tennessee’s longstanding commitment to protecting the right to contract. In Tennessee, the right to contract has constitutional origins, and it is enforceable as a fundamental right.[5] Tennessee statutory law also provides that: “All contracts, . . . in writing and signed by the party to be bound, . . . shall be enforced as written.”[6] In keeping with this tradition, the Eberach court explained that “one of the bedrocks of Tennessee law is that our courts are without power to make another and different contract from the one executed by the parties themselves.” As such, the Court mandated that the terms of the husband’s and wife’s MDA be enforced.
Having resolved that the wife was entitled to attorney’s fees for her successful litigation in the Court of Appeals, the Court then remanded the case to the trial court to “determine the appropriate amount of Wife’s reasonable attorney’s fees on the appeal.” Additionally, applying its just-announced holding to itself, the Tennessee Supreme Court also explained that the attorney’s fee award must cover the costs of the wife’s appeal “to this Court” as well. Thus, going forward, litigants in Tennessee—and divorcees in particular—can have renewed faith that the terms of their contracts will, in fact, be enforced as written.
Read the Court’s unanimous opinion in Eberach v. Eberach here.
[1] See Grisham v. Grisham, No. W2010- 00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding that the trial court erred in failing to award wife her reasonable trial court attorney’s fees pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award of trial court fees under the parties’ MDA, but equitably denying wife’s request for appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees); Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn. Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA, but equitably declining to award either party attorney’s fees incurred on appeal).
[2] See, e.g., Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct. App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7 (Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473, at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COAR3-CV, 2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v. Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July 30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level proceedings pursuant to the parties’ MDA).
[3] Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013); (citing Archer, 907 S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051- COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its discretion then awarding fees on appeal based on the parties’ MDA requiring that the “court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”) (alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015 WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of fees pursuant to the parties’ MDA, stating its discretion and determining that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No. M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012) (holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the parties’ MDA, but using its discretion and concluding that Mother was justified in recovering attorney’s fees).
[4] Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359; John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)).
[5] See Tenn. Const. art. XI, § 2; Tenn. Const. art. I, § 20. See also ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (“equity respects and upholds the fundamental right of the individual to complete freedom to contract”) (quotation omitted).
In 2012, the Tennessee Supreme Court ruled that a defendant who pleads guilty to a crime can appeal the judgment if exculpatory evidence is discovered later.
Four years later, the same court changed its mind.
What occurred in the intervening four years to necessitate such a pivot by the state’s highest court? Nothing, according to Justice Sharon G. Lee.
. . . .
“Since 2014, the Tennessee Supreme Court has aggressively sought to federalize Tennessee law by striking down state-specific protections that prior iterations of the court had developed under Tennessee’s state constitution and civil rules,” says Daniel Horwitz, a Nashville attorney and the editor of ScotBlog, a website devoted to the state Supreme Court. “A few significant state-level protections still remain. However, given that prior precedent — no matter how recent or firmly established — has had virtually no influence on the Tennessee Supreme Court’s decisions to overturn its previous rulings, it stands to reason that these protections are vulnerable to being abandoned as well.”
In March 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (TPRA) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by The Tennessean against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain.
