Day on Torts
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.
The plaintiff filed a complaint against the defendant (the daughter-in-law’s attorney) for tortious interference, civil conspiracy, and constructive trust. The defendant filed a motion to dismiss based on the litigation privilege, which the trial court granted, and the Court of Appeals affirmed.
The litigation privilege is an absolute privilege that applies when:
(1) the attorney was acting in the capacity of counsel for a client or identifiable prospective client when the conduct occurred, (2) the attorney was acting in good faith for the benefit of and on behalf of the client or prospective client, not for the attorney’s self interest, (3) the conduct was related to the subject matter of proposed litigation that was under serious consideration by the attorney, and (4) there was a real nexus between the attorney’s conduct and litigation under consideration.
(internal citation omitted). In this case, the only factor at issue was factor two—whether the attorney was acting in good faith.
The plaintiff asserted that the defendant was not acting in good faith because she “misrepresented the law regarding marital property to threaten a violation of the temporary injunction” and she misrepresented her client’s potential interest in the property to increase her bargaining power in the divorce. The Court, however, disagreed. The Court noted that defendant attorney asserted her client’s potential property rights very soon after the deed was discovered. It further explained that it is common for the arguments in a case to change based on discovery, and that “there is nothing out of the ordinary about a divorce litigant’s argument as to marital property changing during the life of a case.”
The Court reasoned:
Contrary to Plaintiff’s arguments, he did not make sufficient allegations as to bad faith. Distilled to its essence, his allegation is that he disagrees with Attorney Larkins’s position that her client may have a stake in the Property and that her legal theory lacks merit. This is not so much a factual allegation as it is a legal conclusion and Plaintiff’s opinion about the proper disposition of the Property. While Plaintiff correctly points out that we must construe his factual allegations as true, we are not required to accept as true assertions that are merely legal arguments or ‘legal conclusions’ couched as facts.
(internal citation and quotation omitted).
The Court wrote that “Plaintiff conflates an erroneous or unsuccessful act by an attorney with bad faith,” and that “the litigation privilege is not limited to legal undertakings that bring fully successful results.” (internal citations omitted). Because the litigation privilege applied, dismissal of the complaint was affirmed.
The litigation privilege is not often addressed by the Court of Appeals, so this is an important read for anyone who might have this issue arise in his or her case.
This opinion was released three months after oral arguments.