Day on Torts

March 20, 2026

Nolle prosequi dismissal was not a favorable termination for malicious prosecution claim.

When a nolle prosequi order was entered in a shoplifting case, halting the prosecution of the case, the discharge of the action did not qualify as a favorable termination in order to support a later claim of malicious prosecution.

In Smith v. Dillard Tennessee Operating Limited Partnership, No. W2024-010881-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff was charged with shoplifting from the defendant department store. After criminal proceedings began, the State entered an Order for Expungement of Criminal Offender Record because a nolle prosequi had been entered in the case. The shoplifting case was accordingly discharged.

Based on the shoplifting charges, the plaintiff filed a claim for malicious prosecution. The trial court granted summary judgment to defendant, ruling that the plaintiff could not show that the underlying cause of action was terminated in her favor, and the Court of Appeals affirmed.

March 19, 2026

TPPA did not apply to legal malpractice claim

by The Law Offices of John Day, P.C.

When a lawyer files a lawsuit on behalf of a client, he is not exercising his own right to petition, and a later legal malpractice claim related to that underlying lawsuit is not subject to dismissal under the Tennessee Public Protection Act.

In Cartwright v. Hendrix, No. W2022-01627-SC-R11-CV (Tenn. Dec. 9, 2025), the Tennessee Supreme Court considered the issue of whether a lawyer sued for legal malpractice could invoke the TPPA to seek dismissal of the case. The defendants in this case represented the plaintiff in multiple lawsuits related to the administration of a trust. After over ten years of unsuccessful litigation, the plaintiff filed this legal malpractice case against the defendants.

The defendant lawyers filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”). The defendants argued that the claims related to their right to petition and were thus covered by the TPPA. The trial court found that the TPPA did not apply, but the Court of Appeals reversed that holding. In this opinion, the Tennessee Supreme Court ruled that the TPPA did not apply because the lawyers were not exercising their own right to petition.

March 18, 2026

Evidence of Re-Marriage Admissible in Wrongful Death Case; Errata Sheet Could Be Used in Cross-Examination.

by The Law Offices of John Day, P.C.

After affirming several challenged evidentiary rulings, the Court of Appeals upheld a jury verdict for the defendant doctor in an HCLA case.

In Davis v. Ellis, No. W2024-01467-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff filed an HCLA claim against the defendant doctor based on his treatment of the decedent. The decedent came to the emergency room with a complicated medical history and bilateral pneumonia. On her second day at the hospital, the defendant doctor performed a pulmonary consultation on the decedent at 4:00 pm. Based on his exam, the defendant changed the decedent’s antibiotic, ordered further testing, and ordered that she be transferred to the ICU stat. The defendant also charted that he suspected she would get worse and would likely need intubation within the next twenty-four hours.

The defendant’s shift ended at 6:00 pm, at which time the plaintiff’s vital signs were stable. Between 6:00 pm and the decedent’s death, she was seen by ten other medical professionals. The decedent’s condition began deteriorating at some point that evening, and around 11:00 pm a team attempted to intubate decedent. Intubation required multiple attempts, and the decedent passed away early the next morning.

March 17, 2026

School’s duty to supervise student affirmed

by The Law Offices of John Day, P.C.

Where a public school failed to read the information it was provided about a student with a long history of psychological and behavioral problems, and the student jumped from a second story window when left in a classroom unattended by any adult, the finding of negligence under the GTLA against the city was affirmed.

In Dodson-Stephens v. Metropolitan Government of Nashville and Davidson County, No. M2024-01006-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2025), the plaintiff mother filed suit individually and on behalf of her daughter, who was paralyzed after she jumped from a second story window at a public school operated by defendant city. The daughter had a life-long history of behavioral and psychological problems, many stemming from abuse she experienced before being adopted by the plaintiff mother. The daughter’s past issues included violence, self-harm, and running away.

At the time of the incident underlying this case, the daughter was a teenager in state care, but the mother was still actively involved in the daughter’s life. Against the mother’s recommendations, the daughter was transferred from a facility in Memphis to a facility in Nashville that would involve stepped-down supervision. As part of this transition, the daughter would begin classes at a new school. This new school was focused largely on assisting formerly incarcerated teens transition back into a school setting. The Department of Children’s Services (“DCS”) took charge of this transition.

March 15, 2026

Legal Malpractice Falls Short – No Causation Demonstrated

by The Law Offices of John Day, P.C.

Where plaintiff filed a legal malpractice claim based on an attorney’s advice regarding a contract to purchase real property, summary judgment for the attorney was affirmed because the contract terminated before the attorney was hired, and the plaintiff therefore could not show causation or proximate cause.

In Buhler v. Lefkovitz & Lefkovitz, PLLC, No. M2025-00210-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2025), the plaintiff was party to an installment sales contract to purchase real property. The time for a balloon payment was extended by the sellers twice, but prior to the third agreed upon date for the final balloon payment, the plaintiff informed the sellers that she “could not and would not make the balloon payment.” The sellers denied the plaintiff’s request to extend the deadline again, and the December 31, 2021, deadline passed.

On January 24, 2022, the sellers’ attorney sent the plaintiff a written notice of default. After receiving this letter, the plaintiff hired defendant attorney. When the plaintiff subsequently made installment payments, the sellers returned those funds. Upon the advice of defendant attorney, the plaintiff filed a petition for relief under the bankruptcy code. The defendant attorney stated that his hope was to have the contract ruled an executory contract that could be assumed by the bankruptcy trustee, but that plan was unsuccessful.

March 15, 2026

Wrongful burial/cremation case dies.

by The Law Offices of John Day, P.C.

A plaintiff’s fraud claim failed because she had no proof that her son’s body was cremated, rather than buried, as alleged in the complaint.

In Sessel v. N.J. Ford and Sons Funeral Home, Inc., No. W2024-00587-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2025) (memorandum opinion), the plaintiff filed suit alleging that her son’s dead body had been cremated rather than buried as she instructed. According to the plaintiff, on the day of the son’s burial, the ground was too cold for a grave to be dug, so she was told he would be buried sometime thereafter. About a year after the funeral, she received an investigative report created by the medical examiner’s office that related to her son’s homicide. On a section labeled “cremation approved,” the form had been marked “yes.”

Based on this report, the plaintiff filed this suit against the funeral home and cemetery. Although the claims were hard to decipher, the Court of Appeals found that the complaint alleged breach of contract and fraud. The defendants filed a motion for summary judgment, citing testimony from the county’s Chief Medical Examiner who stated that this section of the report was meant to indicate that, if a family wished to cremate a body, it was permitted to do so because the forensic center had completed its investigation. He described it as “essentially pre-approval” for cremation, showing that if cremation were desired it would not hinder any investigation. He stated it was not authority for a funeral home to cremate a body.

March 14, 2026

Legal malpractice claim time-barred.

by The Law Offices of John Day, P.C.

Plaintiff’s legal malpractice claim against the attorneys who drafted her fiancé’s will accrued when she filed an answer to the will contest brought by the fiancé’s surviving relatives.

In LaChappelle v. Tual, No. W2024-01234-COA-R3-CV (Tenn. Ct. App. July 18, 2025), the plaintiff had hired defendant attorneys to draft a will for her fiancé while the fiancé was in the hospital in Tennessee. The fiancé later died, and after the plaintiff filed a petition to probate the will drafted by the defendants, the fiancé’s brother and father filed a complaint to set aside the will based on the failure to comply with certain Mississippi requirements. The plaintiff filed an answer in the will contest case on May 10, 2021.

The plaintiff eventually lost the will contest case, and an earlier will was probated. The plaintiff filed this legal malpractice claim against the defendants as a beneficiary of her fiancé’s will. The legal malpractice complaint was filed on September 14, 2023, but the plaintiff and the defendants had entered a tolling agreement in July 2022. The defendants moved for summary judgment based on the statute of limitations, arguing that the legal malpractice claim accrued no later than May 2021. The one-year statute of limitations had therefore expired before the tolling agreement, so the tolling agreement “did not affect the timeliness of [the plaintiff’s] complaint.” The trial court agreed and granted summary judgment to the defendants, and the Court of Appeals affirmed.

March 12, 2026

Damages based on fraud not limited by contractual language.

by The Law Offices of John Day, P.C.

Where the trial court found that the defendants committed fraud, not breach of contract, the damages awarded were not limited by language in the parties’ contract.

In Amonett’s Eagle Auction & Realty, LLC v. Norris Bro. Properties, LLC, No. E2024-01931-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2025), the plaintiff was an auction company that contracted to sell real property at auction for the defendants. During the auction, the individual defendants bid on the property themselves to increase the price, and they caused a shill bidder to also take part and increase the price. An LLC owned by the defendants won the auction, but it refused to complete the sale.

The plaintiff auction company filed this suit, asserting various tort claims. The trial court found that the defendants committed fraud and intentional misrepresentation, and it awarded the plaintiff over $91,000 as compensation for the plaintiff’s damages for not having the sale completed, lost time, lost sales expenses, and attorneys’ fees. While the defendants did not appeal the finding of fraud, they did appeal the damages awarded.

March 12, 2026

Plaintiff needed expert testimony to support claim that mold in vehicle caused personal injury

by The Law Offices of John Day, P.C.

A plaintiff who claimed personal injuries based on mold which grew in her car due to negligent repairs needed expert proof on the issue of causation.

In Mullis v. SAI Chattanooga N, LLC, No. E2024-00443-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2025), the plaintiff noticed that her SUV roof was leaking. She took the vehicle to the defendant dealership several times for repairs, but the leak continued. Four years later, she began experiencing health problems, “including a chronic cough, joint pain, left foot and shoulder pain, anxiety, a nodule in her lung, and heart palpitations.” At this time, she discovered that mold had grown in her SUV.

The plaintiff filed this suit for personal injuries and property damages against the dealership based on its negligent repair of the leak. The plaintiff asserted that the mold was caused by the faulty repairs, and the mold in turn caused her health issues.

March 11, 2026

Tennessee legal malpractice claim required expert proof of standard of care.

by The Law Offices of John Day, P.C.

The plaintiff could not prove his Tennessee legal malpractice claim without expert proof that the defendant law firm breached the standard of care.

In Mamadou v. Gatti, Keltner, Bienvenu & Montesi, P.C., No. CT-3240-23 (Tenn. Ct. App. Dec. 22, 2025) (memorandum opinion), the plaintiff was represented by the defendant law firm in a workers’ compensation case. In a trial before an administrative judge, the plaintiff was awarded around $101,000. That amount was increased slightly by the Mississippi Workers’ Compensation Commission. The last sentence of the commission’s opinion stated that the “matter [was] remanded to the Administrative Judge for all further proceedings as may be necessary in this claim.” When the award was disbursed to the plaintiff, he signed a document stating that he was satisfied with the services he received from the defendant law firm. Later, the plaintiff filed a pro se complaint claiming that the defendant’s representation in the workers’ compensation claim fell below the applicable standard of care.

The defendant law firm submitted an affidavit from one of its attorneys stating that they complied with the standard of care. The defendant filed a motion for summary judgment on several bases, including that the plaintiff did not have the required expert proof to support his claim. The trial court agreed and granted the motion, and the Court of Appeals affirmed in a memorandum opinion.