This is a defamation action filed by a plaintiff police officer against two defendants concerning allegedly defamatory comments the defendants posted on Facebook about the officer. The defendants, citizens of Ashland City, where the plaintiff had served as a police officer for several years, filed a petition to dismiss the defamation action pursuant to the Tennessee Public Participation Act (“TPPA”). The trial court denied the petition, determining that the officer had successfully established a prima facie case of defamation against each defendant and that the defendants had not met their burden to establish a valid defense. The defendants appealed the denial, arguing that the officer, a public official, had not met the heightened standard of proof necessary to establish that either of them had acted with actual malice when posting their comments to Facebook. During the pendency of this appeal, the officer attempted to nonsuit the underlying defamation lawsuit and moved to dismiss this appeal as moot. Upon review, we determine that the trial court lacked subject matter jurisdiction to grant the officer’s voluntary nonsuit, and therefore we deny the motion to dismiss this appeal. We further determine, upon our de novo review of the record, that the trial court should have granted the defendants’ TPPA petition and dismissed the defamation lawsuit, pursuant to Tennessee Code Annotated § 17-20-105(b), because the officer failed to establish, by clear and convincing evidence, that either defendant had acted with actual malice when posting the Facebook comments. Accordingly, we reverse the trial court’s judgment.

In this interlocutory appeal, the employer contends the trial court erred by ordering the payment of temporary benefits following the treating physician’s determination the employee had reached maximum medical improvement. The employee suffered an injury to his back for which he received authorized medical care for several months before his treating physician placed him at maximum medical improvement and assigned an impairment rating. Several months later, the employee advised his authorized physician that his back pain had returned. His physician provided additional medical treatment before referring him to a neurosurgeon. The employer briefly reinstated temporary disability benefits before ceasing the payments and denying the referral to the neurosurgeon, arguing it constituted a “second opinion” that the employer had no legal obligation to provide. Following an expedited hearing, the trial court determined the employee was entitled to the requested temporary disability and medical benefits. The employer has appealed. Upon careful consideration of the record, we reverse the order compelling the payment of additional temporary benefits, affirm the order in all other respects, and remand the case.

The Managing Director’s Office of the American Bar Association (ABA) Section of Legal Education and Admissions to the Bar released a comprehensive set of data on bar admission outcomes for ABA-approved law schools, including bar pass rates and those admitted through alternative pathways, a growing trend in legal licensure. According to the data, 90.41% of 2022 law graduates who sat for a bar exam passed within two years, with the success rate for alternative pathways reaching 90.52%. The ABA has updated its terminology to refer to "admission" instead of "passage" due to the increasing recognition of alternative pathways by state courts, according to an ABA press release. First-time takers in 2024 had an 82.79% pass rate, more than a 3-percentage point increase over the comparable 79.44% pass rate. The data, which includes demographic information on bar exam passers, is being made publicly available under ABA Standard 509 to provide consumers with reliable information on bar admissions. Spreadsheets of the most recent data are available on the section’s webpage under Legal Education Statistics. Individual school reports for consumers are available at ABA Required Disclosures on a school-by-school basis.

The indigent representation proposal from the Tennessee Administrative Office of the Courts (AOC) on behalf of the Tennessee Supreme Court addresses a number of challenges in the current system. This includes using strategic compensation structures for employing and contracting with attorneys. Under the plan, the “Indigent Representation Commission" may use a combination of retainer, flat fee and hourly or other contracts, offering lawyers more competitive and predictable compensation. Among the advantages of this approach are the elimination of caps and the implementation of intermittent payments. Learn more about the plan and indigent representation in Tennessee.

President Donald Trump has nominated John Squires, a former chief intellectual property attorney at Goldman Sachs, to serve as the next director of the U.S. Patent and Trademark Office (USPTO), Reuters reports. Squires would serve under U.S. Secretary of Commerce Howard Lutnick, who was confirmed by the Senate on Feb. 18. He is currently a partner at Dilworth Paxson in New York, where his practice focuses on artificial intelligence, blockchain technology and cybersecurity. If confirmed, Squires will lead the USPTO as it navigates emerging challenges related to AI’s role in innovation and increasing competition with China. The agency is responsible for issuing U.S. patents and trademarks and advising the government on intellectual property policy.

The U.S. Judicial Conference's Committee on Codes of Conduct last week relaxed ethics guidance issued six months ago. The committee had advised federal judges to restrict their law clerks from seeking post-clerkship employment with political organizations to make clear judges retain "broad discretion" to decide whether to do so on a case-by-case basis, Reuters reports. In the revised advisory, the committee acknowledged that while such employment "may pose a risk" in certain circumstances, judges are now granted broader discretion to assess the situation on a case-by-case basis. This adjustment emphasizes that judges, as appointing authorities, should consider all relevant facts before imposing any restrictions. Additionally, the committee clarified that law clerks may accept stipends for living expenses from law firms if the offer is extended equally to other incoming associates, provided the clerk is not required to work at the firm post-clerkship unless they choose to.

Former Republican state Sen. Brian Kelsey of Germantown says he has received a pardon from President Donald Trump just two weeks after reporting to federal prison to serve a 21-month sentence for an illegal campaign finance scheme, The Tennessean reports. A federal grand jury indicted Kelsey in 2021 for a scheme related to his failed 2016 congressional bid. Prosecutors alleged he illegally funneled money from his state Senate campaign committee to his federal campaign. Kelsey pleaded guilty in 2022 and later unsuccessfully attempted to change his plea. He reported to federal prison in Kentucky last month after he was denied the final appeal.

A bill from Majority Leader William Lamberth, R-Portland, that would allow school districts to deny education to undocumented children advanced in the House K-12 Subcommittee earlier this month, the Tennessean reports. Educators and students testified against the HB793, noting that immigrant families regardless of status contribute to schools through sales and property taxes. Supporters of the bill argue that school districts should have the ability to deny students due to the cost of educating them, specifically citing expenses for English as a Second Language instruction. In the Senate, Sen. Bo Watson, R-Watson's amended bill, SB836, passed the Education Committee in a 5-4 vote. That version of the bill allows schools to require tuition rather than outright blocking enrollment, but it also would institute broad new requirements on schools to document immigration status. The Senate bill is scheduled to be considered by the Senate Finance Ways and Means Committee next week, while the House bill will be before the House Education Committee tomorrow.

Tennessee Republican Sen. Marsha Blackburn has sponsored the "Protecting Our Supreme Court Justices Act of 2025," a proposed bill that would increase the penalty for protesting outside court buildings or judges' homes to up to five years in prison, WBIR reports. Currently, individuals who protest outside court buildings or any buildings or residence occupied or used by a judge, juror, witness or court officer can face up to one year in prison. The existing law applies to those who attempt to "interfere with, obstruct or impede the administration of justice" through picketing or parading and allows for fines against individuals using voice-amplifying devices. Five lawmakers have co-sponsored Blackburn's bill, which must first be reviewed by the Senate Judiciary Committee before it can be voted on.

Hello colleagues! I have thoroughly enjoyed serving as your Construction Law Section chair this past year. I’d like to take a moment and thank you for your membership in the section. It is an honor to serve with lawyers who consistently support each other and engage in open discussion about the law and policy. We are a tight knit group and treat each other with a civility and a collegiality that is particularly refreshing in a profession that is full of “objections!” If you haven’t been on the receiving end of this esteemed professionalism, I encourage you to reach out to TBA section liaisons Chelsea Bennett (cbenett@tnbar.org) or Brooke Leeton (bleeton@tnbar.org) to become more involved. We are always looking for fresh insight into the industry. Plus, the coming years promise to be busy ones for construction lawyers, so support will be essential.  

Speaking of essential, I also wanted to take this opportunity to thank Jerry Martin and the Construction Law Section Executive Council for the excellent Construction Law Forum held at the Tennessee Banker’s Association on Jan. 24. We heard from many state agencies on some of the technicalities we and our clients face with TDEC, licensing, TDOT and TOSHA. The day was rounded out with a speedy case law update and an engaging ethics presentation. Thank you to all the speakers who gave so freely of their valuable time! For those of you who may have missed the 2025 forum, it will be available soon as a 1-Click package.

Finally, it has been a busy legislative session thus far, with many items being followed closely by the section executive council. Proposed legislation is reviewed carefully and feedback is provided whether we support, oppose or are neutral on the proposed bills. If you’d like to be more involved or have specific feedback on any proposed legislation, please reach out Chelsea or Brooke at the emails above. While our executive council comes from across the state and represents a variety of construction industry businesses, there is always room for another voice and we welcome your input!  

And on that note, please encourage your colleagues, opposing counsel and your ADR professionals to join our section. Next year’s forum promises to have some interesting case law updates, as well as legislation reviews. They won’t want to miss it! If you have any suggestions for topics that you would like to see at the next forum or if would be interested in writing about for an article in a future TBA Connect newsletter, please feel free to reach out to me (theresa@tlclawoffice.com) or to our TBA section liaisons.

Thank you again for being a valuable part of our section and we look forward to a prosperous 2025!

— Theresa Critchfield