Tag Archives: Daniel Horwitz

Intermediate Scrutiny for January 5, 2024

ScotBlog Readers:

The delinquent editor of this unreliably updated blog has started a new project: A weekly newsletter devoted to Tennessee Court of Appeals opinions.  The first version is reprinted below, though future versions won’t be published here.  If you like what you see, you can subscribe here: https://horwitz.law/intermediate-scrutiny-blog-signup-form/.

A snappy weekly newsletter from the lawyers at Horwitz Law, PLLC summarizing the week’s decisions from the Tennessee Court of Appeals.

January 1–5, 2024

  • “Extremely intoxicated, hostile, and belligerent” Army lieutenant makes a series of increasingly poor decisions. After a night out drinking at a bar during a bachelor party, he removes his shirt, places it on the ground, and starts urinating on it. He then gets himself arrested and charged with public intoxication, resisting arrest, and assault on a police officer. Afterward, he engages in extensive Facebook messenger correspondence with his “companion” from the evening—distinct from his “then-girlfriend, now wife”—in an attempt to ascertain what happened, and she tells him exactly how intoxicated, aggressive, and violent he was. The Secretariat of bad judgment then sues his arresting officers “for defamation and negligence per se” (claiming, among other things, “that he was not intoxicated, aggressive, or violent when he was arrested”). During the litigation, he repeatedly conceals and otherwise lies about his damning correspondence with his “companion,” which he alternately claims did not exist, he forgot about, his wife told him to delete, and/or was work product created at the direction of his attorney. Davidson County Circuit Court: Your “blatant prevarication and misconduct warrants the most severe sanctions,” so you are ordered to pay over $60,000 in fees and costs, and all of your claims are dismissed with prejudice. Tennessee Court of Appeals: And those sanctions “were directly related to the discovery abuses and were not excessive under the circumstances.” (DAH)
  • After Husband and Wife divorce, Wife sues Husband based on a provision of their marital dissolution agreement that says she gets half the equity in their formerly shared home “when the house sells.” Chancery Court for Montgomery County: Wife gets half the equity as of the date of the Parties’ divorce in 2019. Tennessee Court of Appeals: No, wife gets half the equity as of the date of the house’s sale in 2023. But Husband gets an unjust enrichment credit for the twenty-two consecutive monthly payments that he has already paid Wife based on their alleged oral agreement about the amount of her equity interest, even though the agreement violates the statute of frauds. This case is otherwise remanded so Husband can introduce evidence about improvements and other expenditures he made and so Wife can introduce evidence that she’s entitled to reimbursement for her rent because Husband kicked her out before the house was sold. Also, the relevant provision of the Parties’ “not a model of clarity” MDA—which resulted from “the parties’ self-drafting of a form document they obtained from an unknown source”—is internally inconsistent, so this entire opinion is declared non-citable. (DAH)
  • Homeowner contracts with Contractor to build a “log home.” Contractor contracts with Subcontractor to provide some labor and materials. Subcontractor: I did more than $60,000 of work for which Contractor never paid me, so I’m entitled to payment from Homeowner, who flipped the property (which cost $382,000.00 to build) for a cool $1.5 million after construction was completed. Tennessee Court of Appeals: Not yet you aren’t. Although Tennessee law allows unpaid subcontractors to file unjust enrichment claims against property owners, they have to exhaust their available remedies against the contractors with whom they were in privity first, and getting a default judgment against the deadbeat contractor without demonstrating that you can’t collect on it isn’t exhaustive enough. (DAH)
  • Company sues Employees for holding events using the company’s name and failing to remit proceeds. During the litigation, Employees’ counsel “inadvertently included”—twice—a privileged email from one of the Employees in his trial court filings. Employees’ counsel then continues to file the privileged email in the court record and “discusses the substance and contents of the email at length” at least twice more after that. Employees: Company shouldn’t get to use the privileged email, particularly because Company “trap[ped]” us into making a bunch of apparently false statements using information gleaned from it. Tennessee Court of Appeals: It’s true that Tennessee Code Annotated § 23-3-105 subjected the email to the attorney-client privilege. But Tennessee Rule of Evidence 502 requires privilege holders to take “reasonable steps to prevent disclosure,” and repeatedly filing and citing the email was definitely not that, so the email is now admissible. The waiver of privilege is limited to the email alone, though; it doesn’t extend to “any undisclosed communications concerning the same subject matter.” (DAH)
  • Company A initiates arbitration proceeding against Companies B and C, wins, and then petitions the Davidson County Chancery Court to confirm the arbitration award. Companies B and C: Hold on, we didn’t even know the proceeding existed until we received the motion to confirm the award! Davidson County Chancery Court: That’s too bad; you all objected too late, so the arbitration award is confirmed. Tennessee Court of Appeals: Actually, because “absence of notice may warrant vacatur under the [Federal Arbitration Act],” the award is vacated for now, in part because Company A failed to include a ton of information in the appellate record that would allow us to determine when notice was provided. On remand, the trial court must determine both whether one of the companies even agreed to arbitrate and when the companies actually received notice of the arbitration, too. (DAH)
  • Father and Stepmother sue to terminate Mother’s parental rights over Child. Father/Stepmother: Child lives with us, and Mother hasn’t seen her or supported her in years, among other issues. Chancery Court for Sumner County: And those are both valid grounds for termination, but Tennessee’s termination of parental rights statutes recognize “that terminating an unfit parent’s parental rights is not always in the child’s best interests,” and it is not in Child’s best interest here. Tennessee Court of Appeals: “Upon review of the evidence, we agree with the trial court’s assessment and findings.” (Editorial note: Mother nearly had her parental rights terminated because she waived multiple potentially valid defenses, which Tennessee law really should not allow.) (DAH)

A victory for Horwitz Law, PLLC client Theresa Baldwin! In 2022, Ms. Baldwin was sued for a cornucopia of speech-based tort claims after she criticized two adults (one of them an oft-sanctioned lawyer) who took her minor daughter into their home and elsewhere against Ms. Baldwin’s instructions to stay away. And because—after more than a year of litigation—the Plaintiffs failed to establish any element of their various claims, the Tennessee Public Participation Act means that Ms. Baldwin wins and gets to recover her legal fees. Read the Circuit Court of Robertson County’s Order Granting Defendant’s Tenn. Code Ann. § 20-17-104(a) Petition to Dismiss the Plaintiffs’ Amended Complaint Pursuant to the Tennessee Public Participation Act here: https://horwitz.law/wp-content/uploads/2022-247-Order-Granting-TPPA-Petition.pdf.

Amended Complaints Supersede Earlier Complaints, Holds Tennessee Supreme Court

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).

Tennessee Supreme Court Shuts Door On Nearly All Malicious Prosecution Claims That Arise Out of Criminal Proceedings

By Daniel A. Horwitz:

Malicious prosecution—a common law tort claim—is designed to afford civil redress to people who are subjected to maliciously false lawsuits or criminal charges.  Between the two, being an innocent person who is wrongfully charged with a crime based on malicious falsehoods is worse.  As the U.S. Supreme Court has observed, “[a]rrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”[1]  Put another way (as the Fifth Circuit has):

“[A] wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.”[2]

With this context in mind, the tort of malicious prosecution exists to deter people from initiating knowingly baseless charges for malicious purposes and to enable those who are harmed by such charges to be made whole.  Nobody seriously disputes the public policy value of such a tort.  Indeed, independent of civil liability, it is a crime to initiate a knowingly false report to a law enforcement officer for a reason.[3]

By the same token, society has strong interests in encouraging people to report crimes and to insulate those who do so in good faith from retaliatory lawsuits.  Nobody reasonably disputes this, either.  That is why Tennessee (rightly) sets a high bar for malicious prosecution claims and recognizes multiple easy-to-prove defenses along with three separate (and overlapping) common law and statutory immunities from suit—all of which function to protect good-faith reporters from any serious fear of liability and enable them to recover their legal expenses whenever they are improperly sued.

As of yesterday, though, based on practical realities of the criminal justice system that the Tennessee Supreme Court’s unanimous opinion in Mynatt v. NTEU utterly fails to acknowledge, what was previously a high bar has become impossible to clear in nearly all criminal cases.  The essential holding of the Court’s opinion is that “plaintiffs can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.”[4]  Because Tennessee’s criminal judgment form does not contemplate such a finding, though—and because innocent criminal defendants lack any power to force courts or prosecutors to declare their innocence on their dismissal documents—this standard is illusory as a practical matter.  Thus, when a prosecutor determines that a defendant is innocent and opts to dismiss the charges against him as a result, a defendant who wishes to maintain a subsequent malicious prosecution claim must now object to the dismissal of the charges and demand a trial instead.

This will never (and should never) happen.  It also makes little sense to treat criminal defendants whose cases reach trial more favorably than those against whom evidence was so weak that a prosecutor agreed to dismiss charges without one.  That is not just the author’s view, either.  As Justice Kavanaugh explained for the United States Supreme Court when assessing the same issue under federal law just last year:

“[R]equiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a [malicious prosecution] claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense.”[5]

It is not entirely clear from the Tennessee Supreme Court’s opinion—which contains several glaring errors (like misstating the relevant statute of limitations applicable to criminal proceeding-based malicious prosecution claims and mischaracterizing the substance of the trial court order under review)—that even an acquittal after trial will suffice, either.  As even the most naïve observers of the criminal justice process are aware, an acquittal does not actually reflect a judgment “due to the innocence of the accused,” which is what the Tennessee Supreme Court now says is the standard.  To the contrary, an acquittal “does not prove innocence but, rather, indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime.”[6]  Independently, because a separate element of malicious prosecution claims is that a charge must have been initiated without probable cause, charges that reach trial traditionally preclude malicious prosecution liability based on the “interim adverse judgment rule” on the ground that a charge “had sufficient potential merit to proceed to trial[.]”[7]  A rule that acquitted criminal defendants may (maybe) maintain malicious prosecution claims—but that defendants whose cases were dismissed before trial cannot—is also asinine, “upside down[,]” and has the “perverse consequence of ensuring that some of the most deserving plaintiffs, those who are falsely accused and whose cases were dismissed early on, could not sue . . . .”[8]

All of this is deeply unfortunate.  And the basis for the ruling—which overrules two centuries of Tennessee precedent in favor of adopting the standard for malicious prosecution claims that arise out of civil proceedings—is even worse.  Unlike criminal defendants, civil defendants who are victimized by fraudulent civil litigation have a wide range of tools at their disposal under Tennessee law that enable them to be made whole—including the ability to pursue sanctions even after dismissal,[9] prevent non-merits dismissals merely by moving for summary judgment,[10] and obtain up to $10,000.00 following early-stage dismissals under Tenn. Code. Ann. § 20-12-119(c).  To the extent that the Tennessee Supreme Court was concerned about exposing good-faith reporters to discovery, people who are sued for malicious prosecution for reports to law enforcement also have the ability to stay discovery—every time[11]—merely by petitioning under the Tennessee Public Participation Act, and they can win immediately (and recover their legal expenses) simply by demonstrating that they reported in good faith.

The practical result of the Tennessee Supreme Court’s ruling is that—with the exception of criminal defendants whose charges are dismissed at the earliest possible stage of proceedings for lack of probable cause—no Tennessee criminal defendant will ever be able to maintain a malicious prosecution claim.  A person who falsely accuses, in bad faith, someone of committing a crime can also largely insulate themselves from subsequent malicious prosecution liability just by testifying falsely at a preliminary hearing or filing a false report that facially establishes probable cause.  It goes without saying that society will not benefit from this standard or the perverse incentives it creates.

Considered broadly: If the Tennessee Supreme Court wants to shut the door to righteous civil claims—something it has been increasingly aggressive about doing—it should just say so.  Pretending that claims are available when—as a practical matter—they are illusory compromises the judiciary’s integrity and misleads the public by suggesting that wrongs have remedies when they do not.  Judges—who enjoy absolute immunity from nearly all such claims of wrongdoing—also are not likely to appreciate the genuine consequences of such an approach.  Perhaps it will take a member of the judiciary being wrongfully arrested based on maliciously false criminal charges, suffering the personal and professional humiliation of a false-but-widely-publicized criminal accusation, and finding him or herself without redress after the charge is dismissed for that to change.  Until then, Mr. Mynatt deserved better.

Read the Tennessee Supreme Court’s unanimous ruling in Mynatt v. Nat’l Treasury Emps. Union, Chapter 39, No. M2020-01285-SC-R11-CV, 2023 WL 3243237 (Tenn. May 4, 2023), authored by Chief Justice Roger Page, here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%202020-1285-SC.pdf

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

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[1] United States v. Marion, 404 U.S. 307, 320 (1971).

[2] Richey v. Smith, 515 F.2d 1239, 1244 n.10 (5th Cir. 1975).

[3] Tenn. Code Ann. § 39-16-502.

[4] Mynatt v. Nat’l Treasury Emps. Union, Chapter 39, No. M202001285SCR11CV, 2023 WL 3243237, at *1 (Tenn. May 4, 2023).

[5] Thompson v. Clark, 212 L. Ed. 2d 382, 142 S. Ct. 1332, 1340 (2022).

[6] State v. Turner, No. W200700891CCAR3CD, 2010 WL 2516901, at *9 (Tenn. Crim. App. June 22, 2010), aff’d, 352 S.W.3d 425 (Tenn. 2011).

[7] Parrish v. Latham & Watkins, 400 P.3d 1, 4 (Cal. 2017).

[8] Tr. of Oral Argument at 73:10–17, Thompson v. Clark, 142 S. Ct. 1332 (2022) (No. 20-659), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-659_lkgn.pdf.

[9] Menche v. White Eagle Prop. Grp., LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127, at *10 (Tenn. Ct. App. Aug. 26, 2019).

[10] See Tenn. R. Civ. P. 41.01(1).

[11] Cf. Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734, 74 P.3d 737, 741 (2003) (noting that California’s anti-SLAPP law “potentially may apply to every malicious prosecution action”).

New Tennessee Court of Appeals Ruling Settles Previously Unanswered Questions About the Tennessee Public Participation Act

By Daniel A. Horwitz:

As news of Dominion Voting System’s record-shattering settlement in its defamation case against Fox News spread across newswires, the Tennessee Court of Appeals quietly issued a landmark defamation decision of its own.  In particular, in a little-noticed April 18, 2023 ruling in Pragnell v. Franklin, No. E2022-00524-COA-R3-CV, 2023 WL 2985261 (Tenn. Ct. App. Apr. 18, 2023), the Court of Appeals settled three critical and previously unanswered questions about the Tennessee Public Participation Act, Tennessee’s still-novel anti-SLAPP statute.

Prangell arose from a nasty fallout among former coworkers at investment advisory firm Innovative Advisory Partners.  After four members of the firm left to form a new investment group, a dispute arose and litigation ensued.  Shortly after that litigation was initiated, Innovative Advisory Partners amended something called a “Form U5 Uniform Termination Notice” to state that its former members had been discharged due to “[v]iolation of client privacy rights, misrepresentation and selling away”—the latter meaning selling securities without approval or authorization.  Maintaining that such allegations had been made maliciously and with actual knowledge that the statements were false, the former members sued Innovative Advisory Partners and its CEO for defamation.

The Plaintiffs’ defamation suit began with the trial court issuing a categorically unconstitutional prior restraint enjoining the Defendants from publishing further information that the Plaintiffs contended was false—a frustratingly common occurrence in Tennessee that received no further mention.  The Defendants then petitioned to dismiss the Plaintiffs’ lawsuit under the Tennessee Public Participation Act.  As grounds, the Defendants asserted that the Plaintiffs had filed the complaint in response to Defendants’ exercise of their right to free speech, that the Defendants’ speech related to a matter of public concern, and that the statements in their amended U5 disclosure were true.

The Plaintiffs responded in opposition to the Defendants’ TPPA Petition, appending several declarations that at least facially supported their disputed defamation claim.  The Plaintiffs further maintained that the Defendants’ TPPA Petition was frivolous and that they were entitled to attorney’s fees for having to respond to it.  The Defendants then replied with evidence of their own.

Upon review of the Parties’ filings, the trial court found that the TPPA applied, it denied the Defendants’ TPPA Petition on its merits, and it ruled that it was not filed frivolously.  Everyone appealed.  Thereafter, the Court of Appeals accepted interlocutory review, which TPPA petitioners and respondents may seek as a matter of right under Tenn. Code Ann. § 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.”).

Upon review, the Court of Appeals resolved three previously unanswered questions about how critical provisions of the TPPA operate, all of which will provide substantial guidance for litigants and trial courts in future TPPA cases.

First, the Court of Appeals settled the definition of “prima facie” under the TPPA.  The term is used twice in the statute.  It appears, first, in Tenn. Code Ann. § 20-17-105(a), which provides at step one of the TPPA’s burden-shifting framework that: “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.”  It also appears a second time, in Tenn. Code Ann. § 20-17-105(b), at step two of the TPPA’s burden-shifting framework, which provides that: “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.”

The reason the definition of “prima facie” matters—and why the quantum of evidence necessary to satisfy the standard is so critical—is because it affects whether the TPPA applies at all, and if so, whether a defendant’s TPPA petition should be granted.  Previous litigants—including Daily Wire host Candace Owens en route to her record-setting TPPA win against a failed congressional candidate earlier this year—had fought over the proper definition of “prima facie” within the meaning of the TPPA, given that the term been defined differently across Tennessee law in several circumstances.  Cf. State v. Bryant, 585 S.W.2d 586, 589 (Tenn. 1979) (“‘prima facie’ may be used in various senses, with a range of meaning”).  Resolving this dispute, the relevant portion of the Court of Appeals’ opinion states that:

Tennessee courts have defined the prima facie case standard in other contexts, thus rendering it a term with a well-recognized meaning in the common law. See, e.g., Anderson v. State, 55 Tenn. 13, 14, 1873 WL 5945, at *1 (1873) (“Prima facie evidence is that evidence which is sufficient to establish a fact unless rebutted.”); Union Planters Corp. v. Harwell, 578 S.W.2d 87, 93 (Tenn. Ct. App. 1978) (“As we understand it, a prima facie case is made out when some credible proof … is presented on the issues required to be offered in evidence by a plaintiff for a plaintiff’s recovery.”); Pickard v. Berryman, 142 S.W.2d 764, 769 (Tenn. Ct. App. 1939) (explaining that “prima facie case” “means merely that [the plaintiff’s] evidence, assuming it to be true, is sufficient to prevent his suit being dismissed”); Macon Cnty. v. Dixon, 100 S.W.2d 5, 9 (Tenn. Ct. App. 1936) (“Prima facie evidence is that which, standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed. It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for that purpose.”).

Pragnell, 2023 WL 2985261, at *10.

Thus, the prevailing definition of “prima facie” for purposes of Tenn. Code Ann. § 20-17-105(a) and (b) requires that “‘some credible proof’” be presented to support a litigant’s claim.  Id. at *11 (quoting Union Planters Corp., 578 S.W.2d at 93).  The Court of Appeals also held that this standard does not apply to the third step of the TPPA’s burden-shifting framework (regarding a defendant’s ability to establish a valid defense) and remanded for reconsideration of the matter, explaining that:

To the extent that the initial two steps of the dismissal procedure require only a prima facie showing pursuant to the express statutory language, see Tenn. Code Ann. § 20-17-105(c), the rules of statutory construction instruct that we should infer “that if the Legislature had intended to enact a certain provision missing from the statute, then the Legislature would have included the provision. Thus, the missing statutory provision is missing for a reason—the Legislature never meant to include it.” Effler v. Purdue Pharma L.P., 614 S.W.3d 681, 689 (Tenn. 2020). In other words, with respect to establishing a defense to the defamation claim, Defendants would be required to make more than a prima facie demonstration in order to achieve dismissal of the defamation claim.

Id. at *12.

Second, in a blockbuster footnote that bears heavily upon the multibillion-dollar defamation claim pending between SmileDirectClub and NBC Universal, the Court of Appeals held that no inferences are to be drawn in favor of the opposing party at the TPPA stage.  Id. at n.4 (“We note that the TPPA does not state that the evidence must be viewed in the light most favorable to a particular party, as is the case with summary judgment proceedings.”).  This means that—unlike the standard for summary judgment—evidence furnished at the TPPA stage should not be construed liberally by a trial court or in a manner that is favorable to the party furnishing it.  The most significant practical result of this holding is that in public-figure defamation cases—in which plaintiffs must demonstrate actual malice to prevail—a plaintiff must immediately come forward with clear and convincing evidence of actual malice in order to survive dismissal.

Third, the Court of Appeals resolved the standard for frivolity.  The question arose out of the Parties’ dispute over Tenn. Code Ann. § 20-17-107(b), which provides that: “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.”  Id.  Construing the meaning of “frivolous” for TPPA purposes, the Court of Appeals ruled that a TPPA petition is frivolous when it is “baseless or ‘utterly lacking in an adequate factual predicate as to make the filing of such a [petition] highly unlikely to succeed.”  Pragnell, 2023 WL 2985261, at *15 (quoting Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 161 (Tenn. 2021)).  Affirming the trial court’s ruling that the Defendants’ TPPA Petition had not been filed frivolously, the Court of Appeals also concluded (as onlookers had assumed) that a trial court’s determination on the matter is reviewable only for abuse of discretion.

Read the Court of Appeals’ unanimous ruling in Pragnell v. Franklin, No. E2022-00524-COA-R3-CV, 2023 WL 2985261 (Tenn. Ct. App. Apr. 18, 2023), here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/E2022-524.pdf.

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

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Horwitz Law, PLLC Client Kenneth Mynatt Wins Federal Tort Claims Act Appeal, Unanimous Reversal of District Court Order Before the U.S. Court of Appeals for the Sixth Circuit

In a unanimous panel opinion issued on August 12, 2022, the U.S. Court of Appeals for the Sixth Circuit has ordered that Horwitz Law, PLLC appellate client Kenneth Mynatt’s malicious prosecution and civil conspiracy claims against the United States—maintained under the Federal Tort Claims Act—be reinstated and permitted to move forward.  The Court’s unanimous ruling, authored by Judge Richard Griffin, sets critical Circuit precedent that presenting false evidence to secure an indictment is not “discretionary” conduct within the meaning of the Federal Tort Claims Act’s “discretionary function” exception.

“The question here is whether presenting false evidence (in testimonial or documentary form) to a prosecutor and then to a grand jury is the type of conduct ‘that the discretionary function exception was designed to shield.’  The answer here is plainly no,” Judge Griffin explains.  In so holding, the Sixth Circuit has joined other federal courts in concluding that “[t]here can be no argument that perjury is the sort of legislative or administrative decision grounded in social, economic, and political policy that Congress sought to shield from second-guessing.”  In reversing Middle District of Tennessee District Court Judge William Campbell’s contrary ruling, the Panel further “agree[d] with Mynatt that the district court framed the issue incorrectly and erred[.]”

“We are proud to have represented Mr. Mynatt on appeal and to have won him a unanimous, precedent-setting reversal that permits his Federal Tort Claims Act claims against the United States to move forward,” said Horwitz Law, PLLC principal Daniel A. Horwitz, who represented Mr. Mynatt on appeal along with co-counsel Lindsay Smith.

Read the Sixth Circuit’s unanimous ruling in Kenneth J. Mynatt v. United States of America, et al., here.  Mr. Mynatt’s briefing in the case and selected media coverage are available below.

Case Documents:

Principal Brief of Plaintiff-Appellant

Reply Brief of Plaintiff-Appellant

Selected Media Coverage:

-Bloomberg News: IRS Worker Gets Retaliation Claim Against Feds Revived on Appeal

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As part of Horwitz Law, PLLC’s appellate practice, Horwitz Law has successfully represented appellate clients in high-stakes, high-profile appeals before the United States Court of Appeals for the Sixth Circuit, the Tennessee Supreme Court, the Tennessee Court of Appeals, the Tennessee Court of Criminal Appeals, the Tennessee Supreme Court Special Workers’ Compensation Appeals Panel, and in administrative agency appeals to Davidson County Chancery Court.  Horwitz Law also provides amicus curiae representation in both state and federal appellate courts.  If you are seeking appellate representation, you can purchase a consultation from Horwitz Law here.

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

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

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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

“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

Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance Held In Contempt, Ordered to Return $64,000.00 It Collected in Willful Violation of Permanent Injunction

The Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance “is in contempt of court,” a senior Chancery Court judge has found.  The finding arose from the Registry’s willful collection of $64,000.00 in PAC fees in violation of a permanent injunction prohibiting it from doing so.  “[T]he Registry shall refund all improperly collected registration fees, obtained through the enforcement of Tenn. Code Ann. §2-10-121 in violation of this Court’s injunction, within 15 days,” the Court’s order reads.  It further “ORDERED that additional coercive fines will be considered if defendant fails to refund the registration fees as ordered above[.]”

The contempt proceeding at issue arose from an injunction secured by the election reform advocacy group Tennesseans for Sensible Election Laws in 2018.  Based in part on misconduct by the Tennessee Attorney General’s Office, that injunction was thereafter upheld on appeal by the Tennessee Court of Appeals, which additionally concluded that a mid-litigation statutory amendment to the underlying statute did not moot the case.  A subsequent order issued in December 2021 opted to keep the injunction in place, finding that the Registry had “failed to allege, or meet, the ‘significant change in the law’ standard for relief from prospective enforcement of a final judgment containing an injunction.”

In advance of the contempt trial, discovery revealed that despite knowing that the court’s permanent injunction remained unmodified, Registry officials had opted to begin enforcing the enjoined statute again at the recommendation of the Tennessee Attorney General’s Office.  It additionally revealed that the Registry “expected” a contempt petition to result from its renewed enforcement.  In defense of its violation of a permanent injunction, though, the Registry asserted that “sovereign immunity bars” a contempt petition against the government “as a matter of law”—a position that would mean the government may violate court orders without consequence.  “[T]his simply cannot be[,]” Senior Judge Wright concluded in an April 6 2022 order, noting that such a result would render the separation of powers doctrine “a nullity” and reduce the judiciary “to a paper tiger with the authority to declare an action of the legislative or executive branch to be unconstitutional but an inability to enforce its judgment.”

Upon review of the Registry’s behavior, Judge Wright concluded that “[t]he injunction at issue was lawful,” that it “is clear and unambiguous,” and that the Registry’s “conscious choice” and “deliberate” decision to enforce the enjoined statute was “willful.”  Accordingly, “the Court FINDS that the defendant willfully violated this Court’s injunction by a preponderance of the evidence,” Judge Wright’s order reads.

“While the Tennessee Attorney General’s lawless approach to court orders and constitutional rights continues unabated, so does TSEL’s commitment to vindicating the rights of Tennesseans to participate in elections without illicit governmental interference,” said Daniel A. Horwitz, who represented TSEL with attorneys Jamie Hollin and Lindsay Smith.  “Court orders are not voluntary—even for the state officials who wrongly believe themselves to be above the law.  We look forward to ensuring the return of $64,000.00 that the Tennessee Attorney General’s Office instructed the Registry to steal.”

The Registry was unsuccessfully represented by attorneys Alex Rieger, Matt Jones, and Janet Kleinfelter, all of the Tennessee Attorney General’s Office.  Contact them at @TNattygen.

Read the Chancery Court’s Memorandum Opinion and Order on Plaintiff’s Petition for Contempt here: https://horwitz.law/wp-content/uploads/Memorandum-Opinion-and-Order-on-Plaintiffs-Petition-for-Contemp-1.pdf

Happy New Year to the Tennessee Public Participation Act!

By Daniel A. Horwitz (Republished from the Tennessee Free Speech Blog):

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 critical protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts.

Heading into its third year of existence, it is clear at this point that the Tennessee Public Participation Act is working.  If 2021 is a sign of things to come, Tennessee’s free speech law is also headed in the right direction.

Building on a series of important wins in 2020, the results that the TPPA produced in 2021 cannot be overstated.  To list just a few of them:

In June of 2021, the Tennessee Court of Appeals affirmed an anti-SLAPP judgment—the first ever anti-SLAPP judgment issued in Tennessee—in favor of a Wilson County woman who posted a negative Yelp! review.  The end result was that the thin-skinned doctor who baselessly sued her was ordered to pay a cumulative $75,000.00 cost, fee, and sanctions award for his SLAPP-suit across a pair of cases filed in Wilson County Circuit and General Sessions Court.

In March of 2021—and then again in July 2021—Circuit Courts in separate counties affirmed the constitutionality of the Tennessee Public Participation Act over a Plaintiff’s constitutional challenge.

In December of 2021, the Tennessee Court of Appeals signaled that it would treat the TPPA’s statutory discovery stay seriously, entering an immediate order staying discovery pending appeal upon a defendant’s application for extraordinary appeal on the matter.

Also in December of 2021, SmileDirectClub’s multi-billion dollar SLAPP-suit against NBC Universal was dismissed under the TPPA.

Also in December of 2021, the Circuit Court of Overton County granted several public school parents’ TPPA petitions to dismiss a SLAPP-suit filed by a public school teacher who had been lawfully accused of sexual predation and harassment against students.

Also in December of 2021, the Tennessee Court of Appeals affirmed both an anti-SLAPP judgment and a $39,000 fee and sanctions award issued against a congressional candidate who sued a trio of activists for criticizing him on Facebook.  The Court of Appeals additionally issued appellate sanctions against the candidate for filing a frivolous appeal.

There were some setbacks for the TPPA, though.  Most prominently, the U.S. District Court for the Middle District of Tennessee held for the first time that the Tennessee Public Participation Act does not apply in federal court—one of many reasons why a federal anti-SLAPP law remains essential.  The media’s nasty habit of covering SLAPP-suits only at their inception and hyping the liability that a defendant faces—then failing to follow up once a SLAPP-suit predictably fails—has not improved, either, even when media defendants themselves are the targets.

All considered, however, 2021 was a tremendous year for Tennessee’s nascent anti-SLAPP law.  Here’s to more wins—and more protected speech—in 2022.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.

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Davidson County Chancery Court Orders Tennessee’s Board of Parole to Stop Violating the Reentry Success Act of 2021

Earlier this year, Tennessee enacted the Reentry Success Act of 2021 into law.  The Reentry Success Act overhauls Tennessee’s parole laws, and it was designed to reform several components of the parole hearing process, parole determinations, and parole eligibility.

As soon as the Reentry Success Act took effect, however, the Tennessee Board of Parole began insisting that the Act would not be effective for a huge number of its beneficiaries. As grounds, Board of Parole staff attorney Rachel Hitt complained that “the Board does not have the ability or resources necessary to identify” those cases—part of Tennessee Governor Bill Lee’s PR-first, substance-last approach to criminal justice reform.  Accordingly, one inmate who was presumptively entitled to be released on parole under the Reentry Success Act of 2021 filed suit, seeking to compel the Board of Parole to comply with the law.

In a late Friday afternoon ruling, Davidson County Chancellor Anne C. Martin agreed that the Board of Parole had violated the Reentry Success Act of 2021.  “[T]he Court finds that the Board failed to adhere to the requirement of the Act, codified at Tenn. Code Ann. § 40- 35-503(i) and (j), when it denied [the Petitioner’s] June 23, 2021 request for a parole hearing earlier than July of 2022 and in reasonable proximity to his release eligibility date,” the Court’s ruling reads.  Accordingly, it is “ORDERED, ADJUDGED and DECREED that Mr. Hughes’ petition is GRANTED and this matter is REMANDED to the Board of Parole with instructions to DETERMINE his release eligibility date and SET A PAROLE HEARING within sixty (60) days of that date.”

“The Board of Parole has long been Tennessee’s most disgraceful government agency, and the Lee Administration should be ashamed of its two-faced approach to criminal justice reform,” said attorney Daniel A. Horwitz, who represented Mr. Hughes with Horwitz Law, PLLC attorney Lindsay Smith.  “Laws are not suggestions—even for unqualified patronage appointees and others who draw taxpayer-funded salaries.  We look forward to reuniting Mr. Hughes with his family by Christmas.”

The Court’s September 24, 2021 ruling can be found here: https://horwitz.law/wp-content/uploads/21-0618-II-9-24-21-SIGNED.pdf

Background on the Reentry Success Act of 2021 and its presumption of parole for eligible inmates can be found here: https://horwitz.law/wp-content/uploads/Reentry-Success-Act-of-2021-White-Paper-DAH-7-1-21.pdf

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Daniel A. Horwitz is a Nashville based lawyer who represents clients across Tennessee.  He can be contacted at: [email protected]