Articles Posted in Miscellaneous

Where a plaintiff could not show that she justifiably relied on alleged negligent misrepresentations from a financial advisor, the trial court’s award of damages to the plaintiff was reversed.

In Bartholomew v. Southard, No. W2024-01494-COA-R3-CV (Tenn. Ct. App. May 29, 2026) (memorandum opinion), the plaintiff represented a client in a wrongful death action, helping to obtain a large settlement for the client with a present value of $2,250,000. The plaintiff’s attorney’s fees totaled $750,000, but rather than paying the full fee immediately, the client asked to pay the fee over time as the settlement was paid. The plaintiff attorney and the client entered into an assignment agreement, whereby the plaintiff was to receive over $2.1 million over a 30-year period. The plaintiff asked the defendant, a financial advisor, to calculate the annual amounts to be paid by the client, and the plaintiff paid the defendant $250 for this work.

In 2011, the client stopped making annual payments under the assignment agreement. By this time, the client had paid $600,752.72 to the plaintiff attorney. The plaintiff attorney filed a complaint against the client, and shortly thereafter the client filed an ethics complaint against the attorney. The client alleged that the plaintiff did not counsel him to seek independent legal advice before agreeing to the assignment agreement, and that the assignment agreement was not in his best interest. Before the plaintiff and client mediated their fee dispute, the plaintiff’s counsel realized that some of the calculations suggested by the defendant had not been reduced to their present value, which would have resulted in an overpayment to the plaintiff. The plaintiff ultimately settled with the former client for an additional payment of $100,000.

Where a lawyer made reasonable arguments within the context of a divorce case, the litigation privilege barred claims against her based on those arguments.

In Missel v. Larkins, No. E2025-00419-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2026), the plaintiff inadvertently included his son and daughter-in-law on a deed for a home in which all the parties lived. By the time this deed error was discovered, the son and daughter-in-law were involved in divorce proceedings, in which the defendant attorney represented the daughter-in-law.

At some point, the daughter-in-law gave a sworn statement that she did not own any real property. The inclusion of her name on the deed was later discovered, and defendant attorney communicated to the son’s attorney that the daughter-in-law could not sign a quitclaim deed for the property, as such a transfer of property could violate the temporary injunction against the transfer of any marital property.

In Tennessee, a claim for invasion of privacy based on intrusion upon seclusion does not abate when the person whose privacy was invaded dies.

In Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma, No. M2022-00471-SC-R11-CV, — S.W.3d — (Tenn. April 25, 2025), Ms. Jones was a resident of defendant nursing home and had impaired cognitive functioning. She required help with daily activities, including showering. While a certified nursing aide was helping Ms. Jones shower, the aide accepted a video call from her boyfriend, who was incarcerated. During the call, Ms. Jones’ nude body was visible in the background.

When Ms. Jones’ family was informed of this incident, they filed this invasion of privacy based on intrusion upon seclusion claim. The trial court granted the defendant’s motion for summary judgment, ruling that because Ms. Jones was unaware of the incident, the plaintiff could not show “actual injury or loss in the form of physical, mental or emotional injury.” While the case was pending in the trial court, Ms. Jones died.

Where the seller of real property was found not liable for negligent misrepresentation, the trial court’s finding of liability for negligence was reversed, as “a seller’s liability for the failure to disclose such material facts in a real estate transaction is coextensive with a party’s liability for fraudulent or negligent misrepresentation.” (internal citation omitted).

In Baker v. Baskin, No. M2023-00433-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2024), the plaintiffs purchased a home from the defendants, who were husband and wife. The defendants had lived in the home for thirty-two years. Seven months before the sale, defendant husband noticed a dip in the ground while mowing. He investigated and found a small hole near a bush. The husband believed this hole was likely caused by the decayed roots of a tree he had previously removed. The husband filled the hole with two four-by-four posts, placed topsoil and a topsoil bag on top of it, then covered the area with soil and grass. In the months between finding the hole and closing the sale, the husband did not notice any additional problems despite riding his heavy lawn mower over the area many times. It was undisputed that the husband did not tell his wife about the hole.

The defendants did not disclose this hole in the documents related to the real estate sale. They also marked no on questions related to sinkholes or other soil problems. The contract the parties negotiated included an “as is” provision, and the plaintiff buyers signed a disclosure recommending a geotechnical engineer.

Tennessee does not recognize a common law cause of action for wrongful foreclosure.

In Case v. Wilmington Trust, N.A., No. E2021-00378-SC-R11-CV, — S.W.3d — (Tenn. Nov. 14, 2024), the Tennessee Supreme Court held that there is no tort for wrongful foreclosure in Tennessee. In the underlying case, plaintiff alleged that defendant failed to give required written notice when the foreclosure sale for plaintiff’s home was postponed. Plaintiff filed a complaint asserting several causes of action, but only appealed the trial court’s grant of summary judgment on the tort claim of wrongful foreclosure.

The Court of Appeals agreed with plaintiff that notice was required, and it reversed summary judgment on the wrongful foreclosure claim. The Supreme Court, however, ruled that no such claim exists in Tennessee.

Where plaintiff brought a tort action against defendant based on defective products made pursuant to a contract between the parties, dismissal based on the economic loss doctrine was affirmed.

In Vidafuel, Inc. v. Kerry, Inc., No. M2024-00041-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2024), the plaintiff developed and distributed wellness protein drinks. The plaintiff contracted with the defendant to manufacture these drinks, and problems began early in the relationship. Samples provided were not adequate, shipments that went out received customer complaints and had to be pulled, and the defendant failed to ever create a product that met the plaintiff’s quality requirements.

Plaintiff filed this suit asserting claims for negligent or intentional misrepresentation, deceit/fraudulent inducement, and violations of the Tennessee Consumer Protection Act (“TCPA”). The plaintiff argued that the claims were not based on the contract but were instead based on the defendant’s representations about its ability to manufacture the product. The defendant filed a motion to dismiss, arguing that the economic loss doctrine barred the plaintiff’s tort claims and that the TCPA claim was time-barred. The trial court agreed, dismissing the claims, and the Court of Appeals affirmed.

There has been lots of confusion in Tennessee over how to obtain medical records of a deceased person.

Some providers require that an estate be opened and a HIPAA-compliant authorization be signed by the personal representative of the estate before they will turn over medical records.  This is a ridiculous position – no one should have to go to the expense of opening an estate simply to gain access to medical records.

The Tennessee General Assembly came up with a fix.  A new statute, embodied in Public Chapter 739, amends TCA Section 68-11-304 by deleting  subdivision (a)(1) and substituting the following:

A finding of trespass requires a court to award nominal damages under Tennessee law.

In Dorer v. Hennessee, No. M2023-00729-COA-R3-CV (Tenn. Ct. App. Apr. 12, 2024) (memorandum opinion), the Court of Appeals overturned a trial court’s refusal to award damages after a trespass finding. While the Court deemed most of appellant’s issues waived on appeal due to insufficient briefing, it reversed the denial of trespass damages.

The trial court ruled that appellee trespassed but refused to award damages due to his “good faith.” On appeal, appellant correctly asserted that good faith is not relevant to determining whether a person trespassed. (internal citation omitted). When a litigant proves trespass, the property owner receives at least nominal damages. (internal citation omitted).