IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 3, 2021 Session

AMY FROGGE, ET AL. v. SHAWN JOSEPH, ET AL.

Appeal from the Chancery Court for Davidson County

No. 20-420-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2020-01422-COA-R3-CV

___________________________________

Three members of a school board filed this lawsuit after the school board passed a 

resolution approving a severance agreement with the director of schools that contained a 

non-disparagement clause preventing the individual school board members from 

expressing even truthful criticism of the director of schools. The plaintiff board members 

named as defendants the school board and the director of schools. They sought a 

declaratory judgment that the non-disparagement clause violated their free speech rights 

under the First and Fourteenth Amendments to the United States Constitution and Article 

I Section 19 of the Tennessee Constitution, was unconstitutionally overbroad, and was 

unenforceable as against the public policy of the State of Tennessee. They also sought a 

permanent injunction preventing enforcement of the non-disparagement clause and an 

award of their attorney fees and costs pursuant to 42 U.S.C. § 1988(b). The plaintiffs 

moved for summary judgment on numerous alternative grounds. The defendants filed 

motions to dismiss for failure to state a claim, lack of standing, and lack of ripeness. After 

a hearing, the trial court entered an order denying the defendants’ motions to dismiss and 

granting the plaintiffs’ motion for summary judgment. The trial court found that the nondisparagement clause was unenforceable and unconstitutional on several grounds. It 

permanently enjoined enforcement of the clause and awarded the plaintiffs their attorney 

fees. The defendants appeal, arguing that the case should have been dismissed for lack of 

standing and ripeness. We affirm and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed 

and Remanded

CARMA DENNIS MCGEE,J., delivered the opinion of the court, in which ANDY D.BENNETT,

J., joined. W. NEAL MCBRAYER, J., filed a concurring opinion.

J. Brooks Fox, Nashville, Tennessee, for the appellant, Metropolitan Government of 

Nashville & Davidson Co., Metropolitan Nashville Board of Public Education.

06/20/2022
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Charles W. Cagle and Katherine Kimmel, Nashville, Tennessee, for the appellant, Shawn 

Joseph.

Daniel A. Horwitz and Lindsay B. Smith, Nashville, Tennessee, for the appellees, Fran 

Bush, Jill Speering, and Amy Frogge.

OPINION

I. FACTS & PROCEDURAL HISTORY

In 2016, the Metropolitan Nashville Board of Public Education (“the Board”) 

entered into a contract of employment with Dr. Shawn Joseph, whereby Dr. Joseph would 

serve as Director of Schools for Metro Nashville for a term from 2016 until 2020.1 During 

his tenure, Dr. Joseph’s relationship with the Board and several of its elected members 

became tumultuous due to several instances of alleged misconduct and poor performance. 

Local news sources reported on the controversies, and the State of Tennessee 

recommended that Dr. Joseph’s educator’s license be suspended.

On April 9, 2019, a five-member majority of the Board voted to terminate Dr. 

Joseph’s employment contract and approve the terms of a Severance Agreement with him. 

Each of the three plaintiffs in this case, Jill Speering, Fran Bush, and Amy Frogge, voted 

against approving the Severance Agreement. The Severance Agreement contained the 

following provisions that are relevant to this appeal:

This Severance Agreement is entered into on this 17 day of April, 

2019, by and between the Metropolitan Nashville Board of Public Education 

(“Board”) and Dr. Shawn Joseph (“Dr. Joseph”). . . . 

. . . 

1. The Board’s Agreement.

. . . 

f. . . . 

 (2) The Board will not make any disparaging or defamatory comments 

regarding Dr. Joseph and his performance as Director of Schools. This 

provision shall be effective for the Board collectively and binding upon each 

Board member individually. Dr. Joseph does not waive any right to institute 

litigation and seek damages against any Board member in his/her individual 

capacity who violates the terms and conditions [of] this Article of the 

 

1 Because the defendants filed motions to dismiss pursuant to Tennessee Rule of Civil Procedure 

12.02(6) and argue on appeal that the trial court should have dismissed the case, the facts presented in this 

opinion are largely taken from the complaint.
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agreement.

(emphasis added). The Severance Agreement defined the term “Disparaging” as “a false 

and injurious statement that discredits or detracts from the reputation of another person.” 

However, it separately defined “Defamatory” as “a statement or communication tending to 

harm a person’s reputation by subjecting the person to public contempt, disgrace, or 

ridicule, or by adversely affecting the person’s business.” Because the non-disparagement 

clause prohibited “any disparaging or defamatory comments,” (emphasis added), and the 

definition of “defamatory” was not limited to false statements, it had the effect of 

prohibiting even truthful statements about Dr. Joseph if they tended to harm his reputation 

by subjecting him to “public contempt, disgrace, or ridicule” or “adversely” affecting his 

business. Dr. Joseph likewise agreed not to make any disparaging or defamatory comments 

regarding Metro, the Board, or individual members of the Board.

On May 4, 2020, Ms. Frogge, Ms. Speering, and Ms. Bush (“Plaintiffs”) filed this 

lawsuit individually and in their official capacities as Board members, naming as 

defendants Dr. Joseph and the Metropolitan Government of Nashville and Davidson 

County, acting by and through the Metropolitan Nashville Board of Public Education. 

Plaintiffs alleged that the Board had unlawfully censored even truthful criticism of Dr. 

Joseph under penalty of personal liability. They claimed that the restriction prevented 

them, as elected officials, from speaking candidly and honestly with their constituents and 

with other elected officials about matters essential to their official duties. Plaintiffs 

contended that the non-disparagement clause effected a prior restraint on their ability to 

make constitutionally protected comments regarding Dr. Joseph and his performance as 

Director of Schools. They also asserted that the non-disparagement clause constituted a 

speaker-based and content-based restriction on speech. Thus, Plaintiffs alleged that the 

non-disparagement clause violated their free speech rights under the First and Fourteenth 

Amendments to the United States Constitution and Article I Section 19 of the Tennessee 

Constitution. Plaintiffs also asserted that the non-disparagement clause had forbidden a 

vast amount of constitutionally protected speech and was unconstitutionally overbroad. 

They further alleged that the non-disparagement clause was unenforceable because it 

contravened Tennessee public policy as expressed in Tennessee Code Annotated section 

8-50-602 to the extent that it prohibited Plaintiffs from communicating with other elected 

public officials.2 They sought a declaratory judgment that the clause was unconstitutional 

and unenforceable pursuant to Tennessee Code Annotated section 29-14-101, et seq., and 

section 1-3-121, in addition to 42 U.S.C. § 1983. Plaintiffs also sought a permanent 

injunction prohibiting enforcement of the non-disparagement clause and an award of their 

attorney fees pursuant to 42 U.S.C. § 1988(b). They attached to their complaint the 

Severance Agreement and the minutes from the Board meeting during which Plaintiffs 

 

2 Tennessee Code Annotated section 8-50-602(a) is part of the Public Employee Political Freedom 

Act of 1980 (“PEPFA”), and provides, “No public employee shall be prohibited from communicating with 

an elected public official for any job-related purpose whatsoever.”
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voted against the resolution to accept the terms of the Severance Agreement.

Six weeks after the complaint was filed, neither defendant had filed an answer yet, 

but Plaintiffs filed a motion for summary judgment.3 At the outset, Plaintiffs noted that 

the non-disparagement clause purported to be “binding upon each Board member 

individually,” including Plaintiffs, even though they voted against adopting it. Thus, 

Plaintiffs maintained that their right to speak and express truthful criticism regarding Dr. 

Joseph had been unlawfully restrained by the Board under penalty of personal liability. 

Plaintiffs contended that because their speech had been restricted via a prior restraint, on 

the basis of its viewpoint, content, and the identity of the speaker, the restriction was 

presumptively unconstitutional such that the government would have the burden of proving 

the constitutionality of the restriction. Specifically, they argued that strict scrutiny would 

apply, so the government was required to demonstrate that the restriction on speech was 

narrowly tailed to serve a compelling state interest. Plaintiffs argued that Metro had no 

legitimate interest, much less a compelling one, in allowing censorship of political speech 

regarding government officials on matters of public importance. Even assuming that such 

an interest did exist, Plaintiffs argued that this restriction was not narrowly tailored. They 

also separately addressed the constitutionality of the restriction under the free speech 

protections of the Tennessee Constitution. Alternatively, Plaintiffs argued that the nondisparagement clause was unconstitutionally overbroad. They also asserted that the nondisparagement clause was void and unenforceable because it violates the public policy 

embodied in Tennessee Code Annotated section 8-50-602 or because it purported to strip 

them of legislative immunity. Alternatively, Plaintiffs asserted that the non-disparagement 

clause should be declared unenforceable against them individually because, although it 

purported to bind them individually, they did not assent to the contract. For all of these 

reasons, Plaintiffs sought summary judgment declaring that the clause was unenforceable 

and unconstitutional and a permanent injunction barring its enforcement.

On July 24, 2020, Metro filed a motion to dismiss pursuant to Tennessee Rule of 

Civil Procedure 12.02(6), asserting four grounds for dismissal: (1) lack of standing to 

challenge the Severance Agreement, (2) lack of ripeness, (3) failure to state a claim “under 

the First Amendment,” and (4) failure to state a claim under the PEPFA. Metro filed a 

single memorandum which stated that it was both in support of its own motion to dismiss 

and in response to Plaintiffs’ motion for summary judgment. First, regarding standing, 

Metro argued that a non-party to a contract has no standing to challenge the contract, and 

therefore, Plaintiffs did not have standing to challenge the Severance Agreement because 

 

3 Tennessee Rule of Civil Procedure 56.01 provides:

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a 

declaratory judgment may, at any time after the expiration of thirty (30) days from the 

commencement of the action or after service of a motion for summary judgment by the 

adverse party, move with or without supporting affidavits for a summary judgment in the 

party's favor upon all or any part thereof.
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they were not parties to it. Metro noted that the contract itself stated that it was “by and 

between” the Board and Dr. Joseph. According to Metro, the non-disparagement clause 

“says nothing about the Plaintiffs’ speech” and should be interpreted to apply only to “the 

Board.” Thus, Metro contended that the First Amendment was not implicated because 

Plaintiffs’ individual speech was not affected. In a footnote, Metro stated that Plaintiffs 

“cannot be individually liable under a contract to which they did not expressly agree.”

Next, Metro argued that Plaintiffs’ claims were speculative and not ripe for review. 

Because Plaintiffs were asserting a “pre-enforcement” challenge to the non-disparagement 

clause, Metro argued that they were required to show a credible fear of its enforcement 

against them. Metro argued that the probability of harm was not substantial or of sufficient 

immediacy to warrant a declaratory judgment. According to Metro, the complaint did not 

sufficiently allege that Plaintiffs intended to make any statements at all or that Dr. Joseph 

would attempt to enforce the clause against them individually if they did. Thus, Metro 

suggested that Plaintiffs could challenge the validity of the non-disparagement clause in 

the event that they actually made a statement and that Dr. Joseph decided to sue them, at 

which point, according to Metro, their claims would become ripe.

Metro also argued that the complaint failed to state a claim for a violation of the 

First Amendment for two reasons: (1) the restriction did not constitute a “prior restraint” 

on speech but a “subsequent punishment” after speech, and (2) there was no governmental 

interference with speech when the agreement threatened liability to a private individual 

rather than the government. Finally, Metro argued that the complaint failed to state a claim 

for a violation of the PEPFA. Aside from discussing these four bases for Metro’s motion 

to dismiss, however, the memorandum did not otherwise respond to the issues analyzed in 

Plaintiffs’ motion for summary judgment.

Plaintiffs filed a response to Metro’s motion to dismiss, arguing that Metro’s 

standing and ripeness arguments were both premised on an erroneous interpretation of the 

Severance Agreement that would go to the merits of the case rather than matters of standing 

and ripeness. Plaintiffs insisted that they had standing for several reasons. First, Plaintiffs 

claimed that they had standing to petition the court to construe a contractual provision that, 

by its plain terms, purported to be “binding upon each Board member individually” and to 

seek a declaration regarding the validity and constitutionality of the provision. According 

to Plaintiffs, Metro’s argument that the non-disparagement clause did not affect Plaintiffs’ 

speech strained the plain language of the Severance Agreement “beyond recognition.” 

Plaintiffs said they “certainly agree[d] with Metro that they did not assent to be bound by 

the contract,” (emphasis added), but Plaintiffs pointed out that this was “one of Plaintiffs’ 

own pending merits arguments” due to the clear and unambiguous language to the contrary 

within the Severance Agreement itself. Plaintiffs also asserted that they had “statutory 

standing” to seek a declaratory judgment under the Declaratory Judgment Act, Tenn. Code 

Ann. § 29-14-101, et seq., or pursuant to Tennessee Code Annotated section 1-3-121. 

Plaintiffs also asserted that they had prudential standing due to the “myriad constitutional 
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injuries” arising from the non-disparagement clause.

Aside from the issue of standing, Plaintiffs also argued that their claims were ripe 

for review. Initially, they noted that this non-disparagement clause was not present in “a 

standard contract between private parties.” Plaintiffs emphasized that they were elected 

officials subject to a government-imposed speech restriction due to the Board’s status as a 

party to the Severance Agreement and its adoption of the Severance Agreement via 

legislative resolution. At the same time, Plaintiffs also noted that unlike the typical case 

where a plaintiff initiates a “pre-enforcement” challenge to a generally applicable statute, 

here, they sought a declaration regarding the validity of a contract that explicitly purported 

to bind them individually. Plaintiffs argued that the Severance Agreement itself integrated 

a specific and credible threat of enforcement against Plaintiffs, suggesting that they would 

be subject to claims for damages if they violated it. They noted that Dr. Joseph had not 

disclaimed any right to enforce the provision that he and Metro had recently negotiated and 

agreed upon. Plaintiffs contended that review was appropriate under Tennessee Code 

Annotated section 29-14-104, which states, “A contract may be construed either before or 

after there has been a breach thereof.” Plaintiffs also asserted that they were forbidden 

from expressing even truthful criticism of a public figure and former government official, 

and therefore, their claims were ripe under the principles applicable to First Amendment 

cases. In response to Metro’s argument that they did not sufficiently plead an intention or 

desire to make any statements, Plaintiffs quoted allegations from their complaint stating 

that the non-disparagement clause, among other things, “forbids the Plaintiffs—three duly 

elected officials who have a duty and obligation to their constituents—from speaking 

candidly and honestly with their constituents and with other elected officials” and 

“prohibits the Plaintiffs from reporting crime, cooperating with official investigations, 

providing truthful testimony, or making constitutionally protected statements in their 

official and individual capacities regarding matters of public concern.”

Finally, Plaintiffs argued that their complaint sufficiently stated a claim for relief 

under “the First Amendment,” to the extent that the issue was raised in Metro’s motion to 

dismiss. However, Plaintiffs noted that their complaint had also asserted “multiple 

additional cognizable claims . . . nearly all of which Metro’s motion ignores.” Plaintiffs 

argued that Metro had waived any argument as to those alternative issues. Regarding the 

PEPFA, which Metro did mention, Plaintiffs clarified that they were not seeking to impose 

liability against Metro in the form of a claim under the PEPFA but merely to demonstrate 

that the non-disparagement clause violated the public policy expressed in the statute and 

should therefore be declared void. Plaintiffs noted that Metro had not submitted any 

evidentiary material in their attempt to contest Plaintiffs’ standing, so there was “no 

evidence to rebut at this juncture.” Anticipating that Metro might submit evidence at a 

later date, Plaintiffs attached an affidavit from Plaintiff Amy Frogge “[i]n the event that 

such evidence is presented” by Metro. Ms. Frogge stated that she was presently restricted 

from speaking and had refrained from doing so, but she described many of the “true 

statements” she would make to her constituents and others regarding Dr. Joseph and his 
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widely reported controversies if the non-disparagement clause was invalidated.

Dr. Joseph followed Metro’s lead and likewise filed a response in opposition to 

Plaintiffs’ motion for summary judgment along with a motion to dismiss pursuant to Rule 

12.02(6) for lack of standing and ripeness. Dr. Joseph’s motion to dismiss simply stated 

that he joined the motion to dismiss and the summary judgment response filed by Metro. 

His response to the motion for summary judgment raised an alternative argument that the 

non-disparagement clause was not subject to strict scrutiny or unconstitutional because 

Plaintiffs were public employees. Both Metro and Dr. Joseph responded to Plaintiffs’ 

statement of undisputed material facts, admitting that all the facts listed by Plaintiffs were 

in fact undisputed.

Plaintiffs filed an additional response to Dr. Joseph’s motion to dismiss but noted 

that Dr. Joseph raised no new grounds for dismissal. Plaintiffs also filed a “collective

reply” to the defendants’ responses to the motion for summary judgment. Plaintiffs 

reiterated the numerous alternative grounds on which they had based their summary 

judgment motion, including that the non-disparagement clause was a content-based, 

viewpoint-based, and speaker-based speech restriction that was presumptively 

unconstitutional and triggered strict scrutiny, and that it could not withstand such scrutiny 

because it did not further a compelling government interest and was not narrowly tailored.

Plaintiffs noted they had also alleged that the clause was unconstitutionally overbroad, 

violated the Tennessee Constitution, and was unenforceable because it violated public 

policy, it unlawfully waived their legislative immunity, and Plaintiffs did not assent to be 

bound by it. Plaintiffs noted that neither Metro nor Dr. Joseph had argued that the nondisparagement clause furthered a compelling governmental interest or was narrowly 

tailored, nor did they introduce any evidence in response to the motion for summary 

judgment. As a result, Plaintiffs argued, if the trial court concluded that strict scrutiny 

applied to the constitutional claims, Metro had necessarily failed to meet its burden of 

proving that the non-disparagement clause satisfied strict scrutiny, and it must be 

invalidated accordingly. Plaintiffs further noted that neither defendant had addressed their 

claims regarding overbreadth, the Tennessee Constitution, or legislative immunity “in any 

regard.” Plaintiffs noted that Metro even appeared to agree with their position that they 

did not assent to be bound by the non-disparagement clause.

Plaintiffs perceived only three limited arguments advanced by the defendants that 

might arguably prevent the application of strict scrutiny. First, Plaintiffs noted Metro’s 

argument that there was no state action because the contract threatened private liability to 

Dr. Joseph, not the government. However, Plaintiffs noted that even Dr. Joseph had 

acknowledged within his response that the Severance Agreement was adopted by the Board 

in compliance with Tennessee statutes and “became an official action of the Board.” Thus, 

Plaintiffs argued that “state action is present” because of the legislative resolution, in 

addition to the fact that the Board was a party to the very contract imposing the restriction. 

Next, Plaintiffs addressed Metro’s argument that the language of the Severance Agreement 
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limited its application only to the Board and not to Plaintiffs individually. They noted that 

the non-disparagement clause plainly stated that it was “binding upon each Board member 

individually” and that Dr. Joseph did not waive any right “to institute litigation and seek 

damages against any Board member in his/her individual capacity who violates the terms 

and conditions [of] this Article of the agreement.” As such, they claimed that it clearly 

affected their speech. Finally, Plaintiffs suggested that Dr. Joseph’s argument regarding 

public employees was misplaced because they were elected officials, and in any event, 

strict scrutiny still applies when such speech restrictions are based on the speaker, content, 

or viewpoint. For all these reasons, Plaintiffs argued that there was no genuine dispute of 

material fact and that it was entitled to summary judgment declaring that the nondisparagement clause was unconstitutional, unenforceable, and violated public policy.

Less than 48 hours before the hearing on the motions, Metro and Dr. Joseph filed a 

“joint reply” in further support of their own motions to dismiss. It stated, “[B]oth parties 

to the contract (the Board and Dr. Joseph) agree that the provision should be interpreted to 

limit only the speech of the School Board itself (or those speaking on behalf of the Board), 

not that of individual Board members.” The joint reply stated, “If there was a question 

previously, Plaintiffs now have their answer: both the Board and Dr. Joseph (the parties to 

the contract) have disavowed any interpretation of the severance agreement that would 

prevent the Plaintiffs from speaking freely, either as individual board members or as 

individual citizens.” According to the defendants, under those circumstances, “Plaintiffs 

cannot demonstrate a ‘cognizable injury’ sufficient enough to convey standing and 

imminent enough to establish ripeness.” They maintained that Plaintiffs were “nonparties 

to the Severance Agreement” and therefore had no cognizable injury that would give them 

standing to challenge the contract or a ripe claim to pursue. They suggested that “Plaintiffs 

are free to make any statement they wish about Dr. Joseph because the contract provision 

only prohibits statements by the School Board itself.”4

After a hearing, the trial court entered an order denying the defendants’ motions to 

dismiss and granting Plaintiffs’ motion for summary judgment on the basis that there was 

no material dispute that the non-disparagement clause “does not promote a compelling 

governmental interest, that it is unconstitutional, and that it is an overbroad and 

unenforceable speech restriction.” After reciting the undisputed facts, the court set out the 

numerous specific bases on which Plaintiffs had sought summary judgment. The trial court 

explained that in the First Amendment context, when the government restricts speech based 

on its content and the viewpoint expressed, the restriction is presumptively unconstitutional 

and may be justified only if the government proves that the restriction is narrowly tailored 

to serve compelling state interests. Thus, the court concluded that Plaintiffs could meet 

 

4

In response, Plaintiffs submitted a news report from a local television station regarding the 

Severance Agreement and its non-disparagement clause. According to the news report, Metro’s Law 

Director who negotiated the Severance Agreement said he “could not say” whether individual board 

members could actually be sued under the contract because his office had never dealt with that legal issue, 

but he added, “That was something that Dr. Joseph wanted in the agreement.”
- 9 -

their summary judgment burden in this case if they could affirmatively negate an essential 

element of the nonmoving party’s claim, by demonstrating beyond material dispute that 

the non-disparagement clause was not narrowly tailored to further a compelling 

governmental interest. Also, the court explained that Plaintiffs would be entitled to 

summary judgment on their overbreadth claim if they could demonstrate beyond material 

dispute that a substantial number of the applications of the non-disparagement clause were 

unconstitutional in relation to its plainly legitimate sweep.

The court noted that Metro opposed the motion for summary judgment and 

simultaneously moved to dismiss on the grounds that the wording of the Severance 

Agreement only restricted the speech of the Board, Plaintiffs lacked standing and their 

claims were not ripe, and the complaint failed to state a claim under the First Amendment 

or the PEPFA. Initially, the trial court rejected Metro’s argument that there was no state 

action because it was undisputed that the non-disparagement clause was adopted by a 

formal School Board Resolution, and additionally, the Board itself was a party to the 

contract containing the speech restriction. As for the wording of the non-disparagement 

clause, the trial court again rejected Metro’s argument, finding the text “clearly states 

without ambiguity” that it was “binding upon each Board member” and not merely to the 

Board as a collective body. The court noted that the clause further referenced Dr. Joseph’s 

right to institute litigation and seek damages against any board member “in his/her 

individual capacity” should they violate the terms of the agreement. Given this 

unambiguous language, the court concluded that Metro’s proposed interpretation “would 

make no sense.” The court noted that it could not make a new contract for parties who had 

spoken for themselves. With specific reference to the matter of standing, the court noted 

Metro’s argument that Plaintiffs were not parties to the contract, so they could not maintain 

their claims. However, the trial court rejected this argument “because the contract that they 

are challenging expressly states that it binds them, and it still affects them and purports to 

subject them to individual damages liability.” It reasoned that the defendants’ “joint 

collusion to prevent even truthful criticism of one another,” while asserting that no one had 

standing to challenge it, was “insufficient to eliminate the existence of a constitutional 

injury” and did not preclude judicial review of the censorship. It found that the contract 

“unambiguously applies to the Plaintiffs” and that the matter was “fully justiciable.” 

Finally, the trial court rejected Dr. Joseph’s argument regarding public employees.

Having rejected the defendants’ only arguments in opposition to the application of 

strict scrutiny, the court concluded that the non-disparagement clause restricted Plaintiffs’ 

speech on the basis of its viewpoint, content, and speaker, so strict scrutiny applied with 

the government bearing the burden of proving the constitutionality of its restriction. The 

court found that strict scrutiny would also apply under the Tennessee Constitution. The 

court found that neither defendant had offered any explanation as to how an elected

governmental body could lawfully contract away its legislative authority or latitude to 

express its views as part of an employee severance agreement. It noted that neither 

defendant even argued that the non-disparagement clause furthered a compelling 
- 10 -

government interest or that it was narrowly tailored, nor did they introduce any evidence 

in response to the motion for summary judgment. As a result, the court concluded that 

Metro failed to meet its burden of proving that the non-disparagement clause satisfied strict 

scrutiny, and it must be invalidated.

The trial court also noted that neither defendant addressed Plaintiffs’ arguments 

regarding overbreadth, the Tennessee Constitution, or legislative immunity, and the nondisparagement clause was therefore “invalidated on each of these grounds” as well. 

Regarding Plaintiffs’ mutual assent argument, the trial court agreed that “Plaintiffs did not 

assent to be bound” by the non-disparagement clause, so it “cannot lawfully be enforced 

against them or subject them to damages in any regard.” Regarding the PEPFA, the trial 

court noted that both defendants perceived the claim to be in the nature of a cause of action 

for damages when Plaintiffs had already clarified that the PEPFA was actually a component 

of their much broader claim for declaratory relief that the non-disparagement clause 

violated public policy. The court found that neither defendant explained how the nondisparagement clause could be compatible with the public policy set forth in the PEPFA 

regarding communication with public officials.

In summary, at the conclusion of the 27-page order, the trial court declared the nondisparagement clause unconstitutional, permanently enjoined its enforcement, granted 

Plaintiffs’ motion for summary judgment and denied the defendants’ motions to dismiss. 

The trial court ruled that Plaintiffs were entitled to recover their attorney fees and costs 

pursuant to 42 U.S.C. § 1988 and directed them to file an application for fees. Both Metro 

and Dr. Joseph prematurely filed notices of appeal to this Court prior to the final award of 

attorney fees. The trial court ultimately entered its final order awarding attorney fees on 

November 25, 2020.

II. ISSUES PRESENTED

The parties raise numerous issues on appeal. Because Metro’s statement of the 

issues is somewhat difficult to follow, we quote it directly from Metro’s brief:

STATEMENT OF THE ISSUES

The Severance Agreement at-issue was entered into between the 

School Board and then-director of schools, Dr. Joseph. Plaintiffs (all board 

members at the time) voted against it, did not sign it, and were not parties to 

the contract. Accordingly, the Agreement did not bind the Plaintiffs. Further, 

the Board and Dr. Joseph (the only parties to the contract) have explained 

that it was never their intent to interfere with Plaintiffs’ free speech rights. 

Thus, Plaintiffs do not have a concrete and particularized injury-in-fact. 

There was never any prohibition of Plaintiffs’ speech, or any enforcement 

(or even threatened enforcement) of the Agreement’s nondisparagement 
- 11 -

clause.

Therefore, because Plaintiffs’ allegations are insufficient to show an 

injury-in-fact, redressability, or ripeness, Plaintiffs do not have standing 

(whether under federal or state law) to sue over a contract to which they were 

not parties. Finally, Plaintiffs have failed to allege any attempt to speak with 

a public official, or any related discrimination on the part of the Metropolitan 

Government which would give rise to a claim under TENN. CODE ANN. § 

8-50-602(a).

Did the Trial Court err by not dismissing this case?

Dr. Joseph presents two issues for review on appeal, which we also quote from his brief:

I. Whether Plaintiffs may prevail on a motion for summary judgement 

in a §1983 action without establishing that they suffered an injury in 

fact or that their claims can be redressed by the requested relief.

II. Whether qualified immunity should be extended to a former 

government employee in a suit initiated by his former employers to 

effectuate the policy rationale underpinning the doctrine of qualified 

immunity.

Finally, in their posture as appellees, Plaintiffs present the following issues on appeal:

(1) Whether the trial court correctly determined that the Plaintiffs had 

prudential, statutory, and/or individualized standing to maintain their 

claims.

(2) Whether the Defendants’ failure to raise an argument on appeal 

regarding the trial court’s rulings that the Plaintiffs had prudential 

standing to maintain their facial overbreadth claim and statutory 

standing to seek a declaration forecloses the Defendants’ claims 

regarding the Plaintiffs’ individualized standing.

(3) Whether the trial court correctly determined that the Plaintiffs had 

individualized standing to maintain their claims.

(4) Whether the trial court abused its “wide” discretion to issue a 

declaration regarding the constitutionality of the legislatively ratified

School Board Censorship Clause in Joseph’s severance agreement.

(5) Whether the Defendants’ failure to appeal three grounds upon which 

the trial court invalidated the School Board Censorship Clause 

forecloses the Defendants’ merits arguments.

(6) Whether Joseph’s merits arguments are waived because they are 

presented for the first time on appeal.

(7) Whether the trial court erred in declaring the School Board

Censorship Clause unconstitutional and illegal due to its facial
- 12 -

overbreadth; its content-, viewpoint-, and speaker-based speech

restrictions; its contravention of article I, § 19 of the Tennessee

Constitution; or its violations of Tennessee public policy.

(8) Whether either Defendant appealed the trial court’s November 25, 

2020 order on attorney’s fees.

(9) Whether Metro may adopt Joseph’s argument regarding the trial 

court’s November 25, 2020 order on attorney’s fees when Joseph’s

position cannot apply to Metro.

(10) Whether Joseph’s claim regarding the trial court’s November 25, 

2020 order on attorney’s fees is waived because he failed to advance

it below and took a conflicting position before the trial court.

(11) Whether the allegations in the Plaintiffs’ Complaint are admitted due 

to the Defendants’ failure to deny them in a responsive pleading.

(12) Whether the Plaintiffs should recover their attorney’s fees regarding 

this appeal.

For the following reasons, we affirm the decision of the chancery court and remand for 

further proceedings.

III. DISCUSSION

A. Defining the Issues on Appeal

We begin by noting the lack of clarity in Metro’s statement of the issues. This Court 

emphasized the importance of clearly defining issues presented for review on appeal in 

Cartwright v. Jackson Capital Partners, L.P., 478 S.W.3d 596, 613-15 (Tenn. Ct. App. 

2015), in which we explained:

At the outset, it is necessary to identify the issues properly presented 

for our review in order to define the scope of our review on appeal. “‘Scope 

of review’” defines the issues that may be reviewed by an appellate court 

when an order or judgment has been properly appealed. Hodge v. Craig, 382 

S.W.3d 325, 333 n.2 (Tenn.2012). The scope of our review depends largely 

on whether issues have been properly raised on appeal and presented in the 

manner prescribed by Tennessee Rule of Appellate Procedure 27. Id. at 333-

34. Appellants must include in their brief “a statement of the issues they 

desire to present to the court and an argument with respect to each of the 

issues presented.” Id. at 334-35 (footnote omitted); see Tenn. R. App. P. 

27(a)(4) (providing that briefs must contain a “statement of the issues 

presented for review”). “The requirement of a statement of the issues raised 

on appeal is no mere technicality.” Owen v. Long Tire, LLC, No. W2011-

01227-COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct. App. Dec. 22, 

2011). In Hodge, the Tennessee Supreme Court emphasized the importance 
- 13 -

of properly presenting issues for review and indicated that “a properly framed 

issue may be the most important part of an appellate brief.” Id. at 334 (citing 

Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of 

Persuading Judges 83 (2008); David E. Sorkin, Make Issue Statements Work 

for You, 83 Ill. B.J. 39, 39 (Jan. 1995)). “Rather than searching for hidden 

questions, appellate courts prefer to know immediately what questions they 

are supposed to answer.” Id. (citing Bryan A. Garner, Garner on Language 

& Writing 115 (2009); Robert L. Stern, Appellate Practice in the United 

States § 10.9, at 263 (2d ed. 1989)). “The issues should be framed as 

specifically as the nature of the error will permit in order to avoid any 

potential risk of waiver.” Id. at 335 (citing Fahey v. Eldridge, 46 S.W.3d 138, 

143-44 (Tenn. 2001); State v. Williams, 914 S.W.2d 940, 948 (Tenn. Crim.

App. 1995)). “Parties should refrain from incorporating several separate and 

distinct errors into a single issue.” Williams, 914 S.W.2d at 948-49 (finding 

an issue waived because it was “too broad in scope” and “vague and 

conclusory in nature”). Instead, “[a] separate issue should be presented for 

each error raised in the appellate court.” Id. at 948 (citing Leeson v. Chernau, 

734 S.W.2d 634, 637 (Tenn. Ct. App. 1987)). The Rules of Appellate 

Procedure “‘do[ ] not contemplate that an appellant may submit one blanket 

issue as to the correctness of the judgment and thereby open the door to 

argument upon various issues which might affect the correctness of the 

judgment.’” Id. at 948 n.5 (quoting Leeson, 734 S.W.2d at 637).

“[P]roperly drafted issues will assist the writer of the appellant’s brief, 

the writer of the appellee’s brief, the panel of appellate judges who are 

assigned the responsibility of addressing the issues in an opinion, and the 

staff of each appellate judge.” Williams, 914 S.W.2d at 948. If an issue is not 

properly drafted, “[t]he attorney preparing the appellee’s brief will entertain 

doubt as to the precise issue that is to be addressed[.]” Id. The appellee is 

entitled to fair notice of the appellate issues so as to prepare his or her 

response, and, more importantly, “this Court is not charged with the

responsibility of scouring the appellate record for any reversible error the 

trial court may have committed.” Owen, 2011 WL 6777014, at *4. “It is not 

the role of the courts, trial or appellate, to research or construct a litigant’s 

case or arguments for him or her, and where a party fails to develop an 

argument in support of his or her contention or merely constructs a skeletal 

argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Sup.

Ct., 301 S.W.3d 603, 615 (Tenn. 2010). “The adversarial system of justice is 

premised on the idea that ‘appellate courts do not sit as self-directed boards 

of legal inquiry and research, but essentially as arbiters of legal questions 

presented and argued by the parties before them.’” Malmquist v. Malmquist, 

No. W2007-02373-COA-R3-CV, 2011 WL 1087206, at *11 n. 21 (Tenn. Ct.

App. Mar. 25, 2011) (quoting State v. Northern, 262 S.W.3d 741, 767 (Tenn.

2008) (Holder, J., concurring in part and dissenting in part)). Thus, “appellate 
- 14 -

courts may properly decline to consider issues that have not been raised and 

briefed in accordance with the applicable rules.” Waters v. Farr, 291 S.W.3d 

873, 919 (Tenn. 2009).

. . . 

“‘Courts have consistently held that issues must be included in the 

Statement of Issues Presented for Review required by Tennessee Rules of 

Appellate Procedure 27(a)(4). An issue not included is not properly before 

the Court of Appeals.’” Bunch v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct.

App. 2008) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App.

2001)).

With these principles in mind, we return to Metro’s statement of issues, which bears 

repeating:

STATEMENT OF THE ISSUES

The Severance Agreement at-issue was entered into between the 

School Board and then-director of schools, Dr. Joseph. Plaintiffs (all board 

members at the time) voted against it, did not sign it, and were not parties to 

the contract. Accordingly, the Agreement did not bind the Plaintiffs. Further, 

the Board and Dr. Joseph (the only parties to the contract) have explained 

that it was never their intent to interfere with Plaintiffs’ free speech rights. 

Thus, Plaintiffs do not have a concrete and particularized injury-in-fact. 

There was never any prohibition of Plaintiffs’ speech, or any enforcement 

(or even threatened enforcement) of the Agreement’s nondisparagement 

clause.

Therefore, because Plaintiffs’ allegations are insufficient to show an 

injury-in-fact, redressability, or ripeness, Plaintiffs do not have standing 

(whether under federal or state law) to sue over a contract to which they were 

not parties. Finally, Plaintiffs have failed to allege any attempt to speak with 

a public official, or any related discrimination on the part of the Metropolitan 

Government which would give rise to a claim under TENN. CODE ANN. § 

8-50-602(a).

Did the Trial Court err by not dismissing this case?

We interpret this section as fairly raising the following issues: (1) Did the trial court err by 

not dismissing this case for lack of standing or ripeness; and (2) Did the trial court err by 

not dismissing this case for failure to state a claim under the PEPFA. To the extent that 

Metro analyzes any other issues within the body of its brief on appeal, we deem them 

waived. “Our supreme court has clearly stated that ‘an issue may be deemed waived when 

it is argued in the brief but is not designated as an issue in accordance with Tenn. R. App. 

P. 27(a)(4).” Cartwright, 478 S.W.3d at 616 (quoting Hodge, 382 S.W.3d at 335). We 
- 15 -

also note that Dr. Joseph’s only issue on appeal (aside from one regarding attorney fees)5

is: “Whether Plaintiffs may prevail on a motion for summary judgement in a §1983 action 

without establishing that they suffered an injury in fact or that their claims can be redressed 

by the requested relief.” Thus, any issues argued in his brief beyond these are likewise 

waived.6 See id.

B. Standing & Ripeness

We now turn to Metro’s contention that the trial court should have dismissed this 

case for lack of standing and ripeness. Dr. Joseph likewise argues that Plaintiffs failed to 

establish “an injury in fact or that their claims can be redressed by the requested relief” in 

order to have standing. Before we can resolve those issues, however, we must first consider 

the defendants’ related argument regarding the basic interpretation of the nondisparagement clause. Metro argues that “[c]ourts must read contract provisions in a 

manner that preserves them as lawful and reasonable” and that “every effort should be 

made to preserve Plaintiffs’ free speech rights.” However, we agree with the trial court 

that the only reasonable construction of the Severance Agreement is that its nondisparagement clause purports to be, as it says, “binding upon each Board member 

individually.” Its language is unambiguous. “[T]his Court cannot rewrite the parties’

contract because its terms later prove to be burdensome.” Baptist Mem’l Hosp. v. Argo 

Const. Corp., 308 S.W.3d 337, 345 (Tenn. Ct. App. 2009). Thus, our consideration of the 

remaining issues will be based on this interpretation of the operative language.

“To determine whether a particular case involves a legal controversy, Tennessee 

courts use justiciability doctrines that ‘mirror the justiciability doctrines employed by the 

 

5 Although Dr. Joseph framed his second issue broadly, the argument section of his brief directs 

this issue toward the award of attorney fees.

6 As a result of the limited issues presented by the defendants in the trial court and on appeal 

regarding grounds for dismissal, we note that if these limited issues are resolved in Plaintiffs’ favor on

appeal, the decision of the trial court will be affirmed without reaching the host of substantive issues raised 

in Plaintiffs’ motion for summary judgment. The concurring opinion suggests that because this is an appeal 

from the chancery court's grant of summary judgment, the scope of our review is too narrow. However, 

when reviewing a decision on summary judgment, this Court is not required to extend our review to issues 

that have been waived. See, e.g, Davis v. McGuigan, 325 S.W.3d 149, 154 (Tenn. 2010) ("In his brief, Mr. 

McGuigan contends that there is no genuine issue of material fact as to any of the six elements. Before the 

trial court, however, he argued that summary judgment was warranted only on the first, fourth, fifth, and 

sixth elements. We therefore consider Mr. McGuigan's arguments regarding the second and third elements 

to be waived."); Dye v. Witco Corp., 216 S.W.3d 317, 321 (Tenn. 2007) ("These arguments were not raised 

in opposition to Witco's motion for summary judgment and are not mentioned in the trial court record. . . . 

Because Dye raises this issue for the first time on appeal, we conclude that the issue is waived."); E & J 

Const. Co. v. Liberty Bldg. Sys., Inc., No. E2009-01403-COA-R3-CV, 2010 WL 3385134, at *7 (Tenn. Ct. 

App. Aug. 27, 2010) ("Because Plaintiff has failed to cite any authority whatsoever with respect to its 

argument that the Trial Court improperly granted Defendant's motion for partial summary judgment as to 

the various claims at issue in that motion, we find that Plaintiff has waived these issues on appeal. 

Accordingly, we affirm the Trial Court's grant of partial summary judgment to Defendant.").
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United States Supreme Court and the federal courts,’” including the doctrines of standing 

and ripeness. West v. Schofield, 468 S.W.3d 482, 490 (Tenn. 2015) (quoting Norma Faye 

Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 202 (Tenn. 2009)). 

“‘Lack of standing may be raised as a defense in a Tennessee Rule of Civil Procedure 

12.02(6) motion to dismiss.’” Lovett v. Lynch, No. M2016-00680-COA-R3-CV, 2016 WL 

7166407, at *4 (Tenn. Ct. App. Dec. 8, 2016) (quoting Dubis v. Loyd, No. W2015-02192-

COA-R3-CV, 2016 WL 4371786, at *3 (Tenn. Ct. App. Aug. 15, 2016)). The same is true 

for lack of ripeness. See West, 468 S.W.3d at 489, 494-95 (reversing a trial court’s denial 

of a Rule 12.02(6) motion to dismiss upon concluding that the claims were unripe). “Such 

a motion challenges only the legal sufficiency of the complaint, not the strength of the 

plaintiff’s proof or evidence.” Id. at 489 (citing Webb v. Nashville Area Habitat for 

Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)). Thus, the court decides the motion 

“by examining the pleadings alone.” Id. The motion “‘admits the truth of all of the relevant 

and material allegations contained in the complaint, but . . . asserts that the allegations fail 

to establish a cause of action.’” Id. (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 

850, 854 (Tenn. 2010)). We must “‘construe the complaint liberally, presuming all factual 

allegations to be true and giving the plaintiff the benefit of all reasonable inferences.’” Id.

(quoting Webb, 346 S.W.3d at 427).

The doctrine of ripeness “requires a court to answer the question of ‘whether the 

dispute has matured to the point that it warrants a judicial decision.’” Id. at 490 (quoting 

B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010)). 

It is “peculiarly a question of timing.” Id. (quoting Reg’l Rail Reorganization Act Cases, 

419 U.S. 102, 140 (1974)). “‘The central concern of the ripeness doctrine is whether the 

case involves uncertain or contingent future events that may or may not occur as anticipated 

or, indeed, may not occur at all.’” Id. at 491 (quoting B & B Enters., 318 S.W.3d at 848). 

In the ripeness analysis, courts typically consider “‘[1] the fitness of the issues for judicial 

decision and [2] the hardship to the parties of withholding court consideration.’” Id. 

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).

“Courts use the doctrine of standing to determine whether a litigant is entitled to 

pursue judicial relief as to a particular issue or cause of action.” City of Memphis v. 

Hargett, 414 S.W.3d 88, 97 (Tenn. 2013) (citing ACLU of Tenn. v. Darnell, 195 S.W.3d 

612, 619 (Tenn. 2006); Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976)). The 

standing inquiry “requires a ‘careful judicial examination of a complaint’s allegations to 

ascertain whether the particular plaintiff is entitled to an adjudication of the particular 

claims asserted.’” Id. (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). Standing 

focuses on “‘a party’s right to bring a cause of action, and the likelihood of success on the 

merits does not factor into such an inquiry.’” Fisher v. Hargett, 604 S.W.3d 381, 396 

(Tenn. 2020) (quoting City of Memphis, 414 S.W.3d at 96). However, “a party’s standing 

may turn on the nature of the claim and requires a determination of whether a plaintiff is 

entitled to an adjudication of the particular claim.” Id. In order to establish constitutional 
- 17 -

standing,7the plaintiff must demonstrate three elements: 

1) a distinct and palpable injury; that is, an injury that is not conjectural, 

hypothetical, or predicated upon an interest that a litigant shares in common 

with the general public; 2) a causal connection between the alleged injury 

and the challenged conduct; and 3) the injury must be capable of being 

redressed by a favorable decision of the court. 

Id. A party seeking a declaratory judgment need not show a present injury, but an actual 

“case” or “controversy” or “bona fide disagreement” must exist. Colonial Pipeline Co. v. 

Morgan, 263 S.W.3d 827, 837-38 (Tenn. 2008). In that sense, “the declaratory judgment 

action recognizes that ‘[c]ourts should operate as preventive clinics as well as hospitals for 

the injured.’” Id. at 836-37 (quoting Henry R. Gibson, Gibson’s Suits in Chancery, § 545 

(6th ed. 1982)).

“‘The standing question thus bears close affinity to questions of ripeness—whether 

the harm asserted has matured sufficiently to warrant judicial intervention[.]’” ACLU of 

Tenn., 195 S.W.3d at 620 n.7 (quoting Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975)). 

“In some cases, moreover, the question of standing and ripeness ‘boil down to the same 

question.’” Howe v. Haslam, No. M2013-01790-COA-R3-CV, 2014 WL 5698877, at *7 

(Tenn. Ct. App. Nov. 4, 2014) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 

157 n.5 (2014)).

When courts consider a “pre-enforcement” challenge to the constitutionality of a 

statute or law, “a plaintiff may satisfy the injury element by (1) alleging ‘an intention to 

engage in a course of conduct arguably affected with a constitutional interest, but 

proscribed by [the] statute’ and (2) showing the existence of ‘a credible threat of 

prosecution thereunder.’” Tennesseans for Sensible Election Laws, 2021 WL 4621249, at 

*3 (quoting Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979)). Thus, 

 

7 We recognize Plaintiffs’ argument on appeal that this Court could have affirmed the trial court 

outright based on the overbreadth claim alone. Plaintiffs correctly note that neither defendant raised any 

issue on appeal regarding the overbreadth claim specifically. Plaintiffs suggest that their overbreadth claim 

is subject to a separate and different standing analysis, and therefore, the defendants’ general arguments 

regarding lack of standing would not constitute a ground for reversal of their overbreadth claim. We 

disagree. “‘[U]nder no circumstances ... does the overbreadth doctrine relieve a plaintiff of its burden to 

show constitutional standing.” Tennesseans for Sensible Election Laws v. Slatery, No. M2020-01292-

COA-R3-CV, 2021 WL 4621249, at *7 (Tenn. Ct. App. Oct. 7, 2021) (quoting Advantage Media, L.L.C. 

v. City of Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006)); see also Birmingham v. Nessel, No. 21-1297, 

2021 WL 5712150, at *3 (6th Cir. Dec. 2, 2021) (noting that the overbreadth doctrine provides “an 

exception to only prudential standing requirements, not constitutional standing requirements”). Plaintiffs 

raised similar alternative arguments regarding “statutory standing.” Again, however, statutory standing is 

a type of “non-constitutional” or “prudential” standing, and it “does not replace constitutional standing.” 

Tennesseans for Sensible Election Laws, 2021 WL 4621249, at *4 n.7. As such, it was necessary to address 

the defendants’ arguments regarding constitutional standing. 
- 18 -

when an individual is subject to “threatened enforcement” of a law or restriction, “an actual 

arrest, prosecution, or other enforcement action is not a prerequisite to challenging the 

law.” Susan B. Anthony List, 573 U.S. at 158. Instead, pre-enforcement review is permitted 

“under circumstances that render the threatened enforcement sufficiently imminent.” Id.

at 159. “An allegation of future injury may suffice if the threatened injury is ‘certainly 

impending,’ or there is a ‘substantial risk that the harm will occur.’” Id. at 158 (quoting 

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)).

The case before us involves a pre-enforcement challenge primarily on the basis of 

the First Amendment. “[I]n a pre-enforcement review case under the First Amendment 

(like this one), courts do not closely scrutinize the plaintiff’s complaint for standing when 

the plaintiff ‘claims an interest in engaging in protected speech that implicates, if not 

violates, each [provision of the law at issue].’” Platt v. Bd. of Comm’rs on Grievances & 

Discipline of Ohio Sup. Ct., 769 F.3d 447, 451 (6th Cir. 2014) (quoting Carey v. Wolnitzek, 

614 F.3d 189, 196 (6th Cir. 2010)). If the plaintiff can “objectively establish an imminent 

threat that chills protected activity,” a cognizable injury-in-fact exists. Faith Baptist 

Church v. Waterford Twp., 522 F.App’x 322, 330 (6th Cir. 2013) (quoting Grendell v. Ohio 

Supreme Court, 252 F.3d 828, 832, 834 (6th Cir. 2001)). “‘A plaintiff meets the injury-infact requirement—and the case is ripe—when the threat of enforcement of that law is 

sufficiently imminent.’” Miller v. City of Wickliffe, Ohio, 852 F.3d 497, 506 (6th Cir. 2017)

(quoting Platt, 769 F.3d at 451). Thus, the doctrines of ripeness and standing “may be 

analyzed together” in this context. Platt, 769 F.3d at 451; see also Miller, 852 F.3d at 506 

(“In the pre-enforcement First Amendment context, the line between Article III standing 

and ripeness has evaporated.”) (internal quotation omitted). “Whether the plaintiffs have 

standing and whether their claims are ripe come to the same question: Have they 

established a credible threat of enforcement?” Winter v. Wolnitzek, 834 F.3d 681, 687 (6th 

Cir. 2016).

Applying these principles to the case at bar, the first requirement for a preenforcement challenge is that the plaintiff must allege “an intention to engage in a course 

of conduct arguably affected with a constitutional interest, but proscribed by [the] statute.”

Tennesseans for Sensible Election Laws, 2021 WL 4621249, at *3 (quoting Babbitt, 442 

U.S. at 298). Regarding this issue, Dr. Joseph argues on appeal that “[n]owhere in the 

record do the Plaintiffs claim to have expressed a desire or intention to speak publicly about 

Dr. Joseph’s employment with Metro.” Because the trial court considered the issue of 

standing within the context of the defendants’ Rule 12.02(6) motions to dismiss, we will 

not consider Ms. Frogge’s affidavit that appears to have been conditionally submitted “[i]n 

the event” that Metro introduced evidentiary material. Rather, we will look to the 

allegations of Plaintiffs’ complaint. In doing so, we conclude that the complaint itself 

sufficiently alleges “an intention to engage in a course of conduct arguably affected with a 

constitutional interest, but proscribed by [Metro].” See id. The complaint alleged that the 

School Board, in the midst of controversies, voted “to censor – under penalty of personal 

liability – the Plaintiffs’ truthful criticism of [Dr. Joseph].” It alleged that there were 
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several instances of alleged misconduct during Dr. Joseph’s tenure and noted local news 

reports detailing “alleged mishandling of sexual harassment claims, finding of low 

employee morale and pay disparities after outside legal counsel was hired to investigate, 

allegations involving no-bid contracts, and changes in student discipline policy that left 

teachers with fewer tools to manage their classrooms.” It alleged that Dr. Joseph’s failure 

to report instances of teacher misconduct led the State of Tennessee to recommend 

suspension of his educator’s license. The complaint alleged that Plaintiffs voted against 

the Severance Agreement containing the non-disparagement clause, which “purported to 

censor and prevent . . . Plaintiffs – all public officials with roles that carry significant public 

interest – from disparaging” Dr. Joseph or making truthful statements if they would tend 

to harm his reputation by subjecting him to public contempt, disgrace, or ridicule, or 

adversely affect his business. They alleged that the non-disparagement clause effected a 

prior restraint on their “right and ability to make a vast number of constitutionally protected 

comments regarding Dr. Joseph and his performance as Director of Schools.” They alleged 

that it “forbids the Plaintiffs—three duly elected officials who have a duty and obligation 

to their constituents—from speaking candidly and honestly with their constituents and with 

other elected officials, including one another, about matters essential to their offices and 

their official duties.” They alleged that it “prohibits the Plaintiffs from reporting crime, 

cooperating with official investigations, providing truthful testimony, or making 

constitutionally protected statements in their official and individual capacities regarding 

matters of public concern.” Thus, we find no support for Dr. Joseph’s assertion that 

Plaintiffs never expressed “a desire or intention to speak publicly about Dr. Joseph’s 

employment with Metro.” To the contrary, they alleged “an intention to engage in a course 

of conduct arguably affected with a constitutional interest, but proscribed by” Metro’s 

legislatively-approved contract, meeting the first element for a pre-enforcement challenge. 

See id.

The next element is whether a “credible threat” of prosecution or enforcement 

exists. Id. The defendants argue that there is no credible threat of enforcement. The Sixth 

Circuit has set forth several factors to consider in determining whether a “credible threat” 

of prosecution exists. Tennesseans for Sensible Election Laws, 2021 WL 4621249, at *3 

(citing Online Merchants Guild v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021)). Those 

include: (1) a history of past enforcement against the plaintiffs or others; (2) enforcement 

warning letters sent to the plaintiffs regarding their conduct specifically; (3) an attribute of 

the challenged statute or policy that makes enforcement easier or more likely, such as a 

provision allowing any member of the public to initiate an enforcement action; and (4) a 

defendant’s refusal to disavow enforcement of the statute against a particular plaintiff. Id. 

(citing Online Merchants Guild, 995 F.3d at 550). However, it is important to note that 

these factors “are not exhaustive, nor must each be established.” Online Merchants Guild, 

995 F.3d at 550. 

At first glance, the first factor – history of past enforcement – does not appear 

particularly helpful. See, e.g., Online Merchants Guild, 995 F.3d at 550 (concluding that 
- 20 -

this factor carried “little weight” where the law was “enforceable only during a declared 

emergency” and it “ma[de] sense that there would be at best limited evidence of a history 

of enforcement”). The non-disparagement clause had been only recently approved by a 

majority of the Board, and Plaintiffs, as the only three Board members who voted against 

it, are the only three individuals likely to be targets of its enforcement. Thus, there have 

been no prior “enforcement” actions against Plaintiffs (or others) to date. However, this is 

not a prerequisite for standing. See Susan B. Anthony List, 573 U.S. at 158 (“an actual 

arrest, prosecution, or other enforcement action is not a prerequisite to challenging the 

law”); Daly v. McGuffey, No. 21-3266, 2021 WL 7543815, at *3 (6th Cir. Nov. 15, 2021)

(“plaintiffs are not required to show a history of past enforcement for the same conduct”). 

Aside from any history of enforcement, however, we conclude that the history and 

circumstances surrounding the very adoption of the Severance Agreement are relevant. 

See Minn. Democratic-Farmer-Lab. Party by Martin v. Simon, 970 N.W.2d 689, 696-97 

(Minn. Ct. App. 2022) (“[F]ederal courts have considered the history of the statute’s 

enforcement, as well as how recently it was enacted.”); see, e.g., St. Paul Area Chamber 

of Com. v. Gaertner, 439 F.3d 481, 486 (8th Cir. 2006) (“[T]he threat of prosecution is 

greater under a statute enacted relatively recently.”). Again, the stated factors above are 

not exhaustive. This is not a typical case where Plaintiffs are attempting a “preenforcement” challenge to a longstanding rule or statute that may or may not have been 

enforced throughout its history. See, e.g., Plunderbund Media, LLC, v. Dewine, 753 F. 

App’x 362, 365-72 (6th Cir. 2018) (considering a history of enforcement or lack of 

enforcement of a statute that had “been in effect for decades”). This case involves a 

Severance Agreement only recently negotiated by Dr. Joseph and the Board and then 

legislatively adopted by the Board. It is reasonable to conclude that Dr. Joseph and the 

Board approved the Severance Agreement, over Plaintiffs’ objection, with the expectation 

and intention that it would be enforced against them. Thus, the history of this restriction 

supports a finding that there is a credible threat of its enforcement.

The second factor is whether “enforcement warning letters” have been sent to the 

plaintiffs “regarding their specific conduct.” Online Merchants Guild, 995 F.3d at 550. 

Again, the nature of the restriction at issue in this case somewhat limits the applicability of 

this factor as stated. However, the Sixth Circuit “has held there to be standing for a preenforcement challenge without any warning letter or similar specific correspondence 

whatsoever.” Id. (citing Platt, 769 F.3d at 452). Furthermore, as Plaintiffs noted before 

the trial court, the non-disparagement clause itself contains a specific “threat” of future 

enforcement directly against Plaintiffs. The Board not only agreed that the clause would 

be “binding upon each Board member individually” but also suggested that Dr. Joseph 

would have the “right to institute litigation and seek damages against any Board member 

in his/her individual capacity who violates the terms and conditions [of] this Article of the 

agreement.” Thus, in our view, the Severance Agreement itself served as a “de facto” 

warning letter that Plaintiffs’ specific conduct would be subject to punishment. See, e.g., 

Miller, 852 F.3d at 506 (noting that a denial of a license to plaintiffs “would have acted as 

a de facto ‘warning letter’ that plaintiffs’ conduct was potentially subject to prosecution”); 
- 21 -

see also McKay v. Federspiel, 823 F.3d 862, 867-70 (6th Cir. 2016) (noting that posted 

warning signs addressed to the general public “do not give rise to the same level of 

threatened enforcement” as letters addressing the plaintiff or his conduct specifically). This 

factor also suggests that there is a credible threat or fear of enforcement.

The third factor is whether the challenged policy has an attribute “that makes 

enforcement easier or more likely, such as a provision allowing any member of the public 

to initiate an enforcement action.” Online Merchants Guild, 995 F.3d at 550. “A statute 

is more likely to trigger a credible fear of prosecution if it contains a feature making 

enforcement of the statute easier or more likely,” such as “a citizen-enforcement provision 

authorizing a member of the public to file complaints.” Plunderbund Media, 753 F. App’x 

362, 370-71; see, e.g., Online Merchants Guild, 995 F.3d at 551 (“[P]rivate plaintiffs may 

bring a damages action to remedy price-gouging violations, which increases the likelihood 

that Guild members will have to defend against price-gouging suits.”).8 Here, the 

Severance Agreement contemplates that Dr. Joseph could easily bring an enforcement 

action by instituting litigation and seeking damages against an individual Board member 

in his or her individual capacity. We also note that the Severance Agreement broadly 

prohibits “any disparaging or defamatory comments,” (emphasis added), and with the 

definition of “defamatory” not being limited to false statements, it effectively prohibits 

even truthful statements about Dr. Joseph if they tend to harm his reputation by subjecting 

him to “public contempt, disgrace, or ridicule” or “adversely” affecting his business. In our 

view, this is a particular feature or attribute of the Severance Agreement that makes an 

enforcement action by Dr. Joseph “easier or more likely.” Thus, we conclude that this 

factor also weighs in favor of a finding that the threat of an enforcement action is credible. 

The final factor is whether a defendant has refused to disavow enforcement of the 

statute against a particular plaintiff. Id. at 550. We recognize that Dr. Joseph and Metro 

filed a “joint reply” just before the hearing stating that they “agree that the provision should

be interpreted to limit only the speech of the School Board itself (or those speaking on 

behalf of the Board), not that of individual Board members” and now “disavow[] any 

interpretation of the severance agreement that would prevent the Plaintiffs from speaking 

freely, either as individual board members or as individual citizens.” According to the 

defendants, this means that Plaintiffs cannot establish standing. We disagree. Notably, the 

statements of counsel in the joint reply were not supported by any affidavits, nor did they 

alter the terms of the Severance Agreement legislatively adopted by the Board. This Court 

is tasked with deciding the issue of standing based on the allegations in the complaint. As 

such, the statements in the joint reply do not alter our conclusion. Moreover, “[a] defendant 

may not eliminate standing at will by ceasing to enforce a statute whenever it pleases.”

Faith Baptist Church, 522 F. App’x at 331 (noting that dismissal of the plaintiffs’ case 

 

8 The Sixth Circuit acknowledged that the law contained “various safe harbors that preclude liability 

if an enforcement action materializes” (emphasis added), but they did not preclude enforcement actions and 

the associated costs that the Guild’s members would incur. Online Merchants Guild, 995 F.3d at 551.
- 22 -

“would leave them in a legal penumbra, uncertain of the legality of their actions and afraid 

that [the defendant] might enforce its ordinance at any time”). 

In addition, “standing may be established under [Sixth Circuit] precedent on 

targeted laws, which holds that even when prosecutors disavow enforcement of a law, 

plaintiffs may still sufficiently allege standing when the law is specifically targeted at the 

plaintiffs.” Plunderbund Media, 753 Fed.Appx. at 371-72. “A number of cases have found 

it sufficient that suit is brought by the only plaintiff that is subject to regulation by an 

enactment.” 13B Fed. Prac. & Proc. § 3532.5 (3d ed.). In National Rifle Association of 

America v. Magaw, 132 F.3d 272, 283 (6th Cir. 1997), the Court reasoned that plaintiffs 

were “in a special posture with regard to the issue of standing” when they sought to 

challenge an act that singled out and specifically targeted them. See also Pic-A-State Pa., 

Inc. v. Reno, 76 F.3d 1294, 1299 (3d Cir. 1996) (“[C]ourts have found sufficient adversity 

between parties to create a justiciable controversy when suit is brought by the only plaintiff 

subject to regulation by an enactment.”); People of State of Ill. v. Gen. Elec. Co., 683 F.2d 

206, 210 (7th Cir. 1982) (“[A]s the Act has only one conceivable target -- the Morris facility

-- it is extremely unlikely that the state would overlook the violation.”); St.. Paul Area 

Chamber of Com., 439 F.3d at 485 (8th Cir. 2006) (“When a statute is challenged by a 

party who is a target or object of the statute’s prohibitions, there is ordinarily little question 

that the statute has caused him injury.”) (internal quotation omitted). Because Plaintiffs 

are the very targets of the non-disparagement clause, there is a substantial risk of 

enforcement against them.

We reiterate that “individuals or groups need not wait to be prosecuted for the 

exercise of First Amendment rights before they can bring a lawsuit, provided there is a 

‘claim of specific present objective harm or a threat of specific future harm.’” Jones v. 

Coleman, 848 F.3d 744, 749 (6th Cir. 2017) (quoting Laird v. Tatum, 408 U.S. 1, 13-14 

(1972)). “A threat is credible, in this context, if a person must censor herself to avoid 

violating the law in question.” Miller, 852 F.3d at 506; see also Platt, 769 F.3d at 452 

(“Platt thus must censor himself to avoid violating the Code, which amounts to a credible 

fear of enforcement.”) (quotation omitted). That is precisely what Plaintiffs have done in 

response to the Board’s adoption of the non-disparagement clause and the threat of its 

enforcement. In summary, Plaintiffs are specifically targeted by the non-disparagement 

clause, and their fear of its enforcement is credible, not imaginary or wholly speculative. 

They have established a factual, non-conjectural basis for their fear of enforcement. Thus, 

the second requirement for a pre-enforcement challenge is met.

Aside from the pre-enforcement analysis, we note that Metro raises a separate 

argument as to why Plaintiffs should lack standing in this case. Metro argues that Plaintiffs 

lack standing to pursue a challenge to the Severance Agreement because they are not parties 

to the contract. Metro relies on cases involving contract law stating that persons who are 

not parties to a contract or third-party beneficiaries thereof lack standing to enforce the 

contract or challenge its validity. See, e.g., Slorp v. Lerner, Sampson & Rothfuss, 587 F. 
- 23 -

Appx. 249, 254-55 (6th Cir. 2014). As this Court recently noted, “‘Where [parties] do not 

have a right to enforce the contract themselves, and where they are not third party 

beneficiaries to the contract, no standing exists under the Declaratory Judgment Act to 

bring an action to determine the rights of the parties under the contract.” Elvis Presley 

Enterprises, Inc. v. City of Memphis, No. W2019-00299-COA-R3-CV, 2022 WL 854860, 

at *12 (Tenn. Ct. App. Mar. 23, 2022) (quoting Farmers Ins. Co. v. Miller, 926 S.W.2d 

104, 107 (Mo. Ct. App. 1996)) (emphasis added). The difference here is that this contract 

expressly states that the non-disparagement clause is “binding upon each Board member 

individually.” As such, this is not a case where a third-party who is not a party to the 

contract is seeking a declaration of the rights of other parties to the contract. This case 

involves an effort to challenge a contract that expressly states that it is binding upon nonparties, and those non-parties are attempting to have their own rights determined. 

Therefore, the caselaw cited by Metro is not controlling. See Oeschger v. GeneThera, Inc., 

395 F. Supp. 3d 345, 352-53 (D. Vt. 2019) (acknowledging that nonparties to contracts 

generally lack standing to seek a declaration of rights under a contract but concluding that 

the case before it was different because the plaintiff sought a declaratory judgment that he 

had no liability under the agreement on the basis that he was not bound by it in the first 

place); Leevers v. Bilberry, No. 4:04-CV-34 (CDL), 2007 WL 315344, at *3-4 (M.D. Ga. 

Jan. 31, 2007) (finding standing where a party sought declaratory and injunctive relief that 

it was not required to arbitrate because it was not a signatory to the arbitration agreement 

and was made a party to arbitration without its consent). Moreover, this was more than a 

mere contract among private parties that purported to bind Plaintiffs; it was approved by a 

resolution of the Board.

Finally, Metro argues that Plaintiffs lacked standing because “[i]t goes without 

saying that a contract cannot bind a nonparty,” and therefore, Plaintiffs “could never have 

been bound” by the Severance Agreement legally, and it could not lawfully have been 

binding or enforced against them regardless of the language to the contrary in the contract 

itself. Metro suggests that the obvious invalidity of the language in the contract under 

“basic contract principles” renders “untenable” any argument that the contract could have 

lawfully been enforced in order to censor Plaintiffs’ speech, prevent them from 

communicating, or ultimately “infringe upon their First Amendment rights.” Metro also 

argues that the obvious unenforceability of the contract defeats the redressability element 

of standing because the requested declaratory and injunctive relief “can therefore not 

accomplish anything” if the contract is already unenforceable under contract law.

We do not agree that this argument defeats Plaintiffs’ standing to bring this lawsuit 

challenging the Severance Agreement. This is essentially one of the alternative merits

arguments regarding enforceability that Plaintiffs advanced during the course of this 

litigation, and at the same time, Metro appears to question the merits or ultimate success 

of Plaintiffs’ First Amendment claim. However, standing focuses on “a party’s right to 

bring a cause of action, and the likelihood of success on the merits does not factor into such 

an inquiry.’” Fisher, 604 S.W.3d at 396; see, e.g., Parsley v. City of Manchester, No. 
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M2021-00200-COA-R3-CV, 2021 WL 6139210, at *4 (Tenn. Ct. App. Dec. 29, 2021)

(explaining that a trial court “put the cart before the horse” by ruling that the plaintiff did 

not have standing on the basis that the city charter language did not entitle him to a position, 

as “an ultimate decision adverse to a plaintiff on the merits of the case does not deprive the 

party of standing to bring the action”). “[T]he party seeking a declaratory judgment is not 

required to allege facts in its complaint demonstrating that it is entitled to a favorable 

decision.” Blackwell v. Haslam, No. M2011-00588-COA-R3-CV, 2012 WL 113655, at *8

(Tenn. Ct. App. Jan. 11, 2012). “[T]he fact that the party seeking declaratory relief is not 

entitled to a favorable judgment—that he, she, or it will not prevail on the issue in 

controversy—does not mean that the parties are not entitled to the ‘relief from uncertainty 

that a declaratory judgment affords.’” Id. at *7. The same should hold true when a party 

is entitled to a favorable judgment. “[T]he likelihood of success on the merits does not 

factor into such an inquiry.” Fisher, 604 S.W.3d at 396. 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.

For purposes of standing, “what is essential is that the party seeking the declaratory 

judgment state facts sufficient to demonstrate the existence of an actual controversy 

concerning the matter at issue in the declaratory judgment action.” Blackwell, 2012 WL 

113655, at *8. “The prevailing rule is that when a party seeking a declaratory judgment 

alleges facts demonstrating the existence of an actual controversy concerning a matter 

covered by the declaratory judgment statute, the court should not grant a [Rule] 12.02(6) 

motion to dismiss but, instead, proceed to render a declaratory judgment as the facts and 

law require.” Cannon Cty. Bd. of Educ. v. Wade, 178 S.W.3d 725, 730 (Tenn. Ct. App. 

2005). The general purpose of a declaratory judgment action is to resolve disputes and 

afford relief from uncertainty with respect to rights, status, and other legal relations. Id. 

We express no opinion as to the merits of Plaintiffs’ claims in our analysis of standing. 

However, we conclude that Plaintiffs demonstrated a sufficient controversy for standing to 

exist by establishing that the Board and Dr. Joseph have attempted or purported to bind 

them to an existing legislatively-approved contract and to create contractual liability in the 

event that Plaintiffs violate the terms of that contract. Plaintiffs’ alleged injury is also 

redressable because the requested relief can accomplish something – it can declare that the 

non-disparagement clause is in fact unenforceable and unconstitutional and enjoin its 

enforcement.9

 

9 Metro compares this case to California v. Texas, 141 S. Ct. 2104, 2112 (2021), which involved a 

challenge to the Patient Protection and Affordable Care Act, requiring most Americans to obtain minimum 

health insurance coverage, when Congress had already amended the Act and “effectively nullified the 

penalty” for individuals who failed to do so by reducing it to $0. The individual plaintiffs claimed 

“particularized” harm in the form of their payments to carry the coverage, claiming that the statutory 

language “commands them to buy health insurance.” Id. at 2113-14. Assuming that this would meet the 

injury element of standing, the Court nevertheless found that it would not meet the second element –

traceability. Id. at 2114. The Court explained,
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We note that Dr. Joseph also raises a separate argument regarding the third element 

of standing – redressability, which means “the injury must be capable of being redressed 

by a favorable decision of the court.” Fisher, 604 S.W.3d at 396. Dr. Joseph argues that 

invalidating and enjoining the enforcement of the non-disparagement clause would not 

“insulate Plaintiffs from suit” because he can still protect his reputation through a 

defamation claim. Thus, he claims that their injury, “a fear of future litigation,” cannot be 

prevented by declaratory relief in this case. We are not persuaded by this argument. As 

Dr. Joseph acknowledges in his brief, a defamation claim would be based on statements 

that were false. The non-disparagement clause bars Plaintiffs from even truthful criticism 

of Dr. Joseph and suggests that he could bring a contract-based claim against Plaintiffs and 

seek damages in the event that they “violate[] the terms and conditions [of] this Article of 

the agreement.” This is Plaintiffs’ alleged injury, and it is “capable of being redressed by 

a favorable decision of the court.” Id.

For all of these reasons, we conclude that Plaintiffs have standing to assert their preenforcement challenge, and their claims are sufficiently ripe.

 

Their problem lies in the fact that the statutory provision, while it tells them to 

obtain that coverage, has no means of enforcement. With the penalty zeroed out, the IRS 

can no longer seek a penalty from those who fail to comply. . . . Because of this, there is 

no possible Government action that is causally connected to the plaintiffs’ injury—the 

costs of purchasing health insurance. Or to put the matter conversely, that injury is not 

“fairly traceable” to any “allegedly unlawful conduct” of which the plaintiffs complain. 

Allen v. Wright, 468 U.S. [at 751]. . . .

The plaintiffs point to cases concerning the Act that they believe support their 

standing. But all of those cases concerned the Act when the provision was indisputably 

enforceable, because the penalty provision was still in effect. . . . These cases therefore tell 

us nothing about how the statute is enforced, or could be enforced, today.

Id. The Court noted that its cases had “consistently spoken of the need to assert an injury that is the result

of a statute’s actual or threatened enforcement, whether today or in the future.” Id. “Here,” the Court 

explained, “there is no action—actual or threatened—whatsoever. There is only the statute’s textually 

unenforceable language.” Id. at 2115. The Court said that the third element of standing – redressability –

also made clear that “the statutory language alone is not sufficient.” Id. The plaintiffs did not seek 

injunctive relief regarding the provision they alleged was unconstitutional; they only sought declaratory 

relief. Id. The Court added, “How could they have sought any such injunction? The provision is 

unenforceable. There is no one, and nothing, to enjoin.” Id. at 2116. “To find standing here to attack an 

unenforceable statutory provision would allow a federal court to issue what would amount to an advisory 

opinion without the possibility of any judicial relief.” Id.

Metro argues that Plaintiffs have likewise failed to meet the element of redressability because the 

non-disparagement clause is unenforceable “under basic contract principles,” so any decision in this case 

would amount to an advisory opinion. However, this situation is unlike the one at issue in California v. 

Texas, where Congress had already amended the Act, leaving only “textually unenforceable language.” 

The non-disparagement clause remained undisturbed in the legislatively-approved Severance Agreement, 

and it had not been declared or otherwise rendered unenforceable. That is the judicial relief sought by 

Plaintiffs, in addition to an injunction prohibiting its enforcement. Therefore, the element of redressability 

was met here.
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C. PEPFA

Metro argues on appeal that Plaintiffs’ complaint “fails to state a claim under 

PEPFA” because “[i]n order to impose liability under PEPFA,” discriminatory action must 

have been taken by the public employer as a result of the public employee’s 

communication. See Tenn. Code Ann. § 8-50-603(b) (“If the court of competent 

jurisdiction determines that a public employer has disciplined, threatened to discipline or 

otherwise discriminated against an employee because such employee exercised the rights 

provided by this part, such employee shall be entitled to compensatory damages plus 

reasonable attorney fees.”). Metro argues that Plaintiffs failed to allege any discriminatory 

action resulting from communication, so “the PEPFA claim” should be dismissed. 

However, as the trial court rightly noted, the defendants have continued to address the 

PEPFA issue as if Plaintiffs were asserting a claim for “liability” in the form of a cause of 

action for damages. Plaintiffs made clear that they were only asserting that the nondisparagement clause violated public policy expressed in the PEPFA, and therefore, the 

non-disparagement clause should be declared void. As a result, we need not consider 

Metro’s argument that the allegations failed to “state a claim under PEPFA.” Metro does 

not argue that the non-disparagement clause did not violate public policy. Even if it did, it 

would not be necessary to consider the issue on appeal due to the numerous alternative 

grounds upon which the trial court relied in declaring the non-disparagement clause 

unenforceable and unconstitutional, which the defendants have not appealed. See Lovelace 

v. Baptist Mem’l Hosp.-Memphis, No. W2019-00453-COA-R3-CV, 2020 WL 260295, at 

*3 (Tenn. Ct. App. Jan. 16, 2020) (explaining that when a trial court provides more than 

one basis for its ruling, the appellant generally must appeal all of the alternative grounds 

for the ruling, and if a separate and independent ground supports the judgment made below 

and is not challenged on appeal, the appellate court must affirm).

D. The Trial Court’s Award of Attorney Fees

We now consider Plaintiffs’ argument that this Court does not have subject matter 

jurisdiction to consider any issue regarding the trial court’s award of attorney fees due to 

the timing and content of the defendants’ notices of appeal. The notices of appeal were 

filed prematurely, after the entry of the order declaring the non-disparagement clause 

unenforceable and unconstitutional, but prior to the final award of attorney fees. This Court 

entered an order stating that the notices of appeal would be deemed premature and would 

be treated as filed as of the date of the final judgment. However, Plaintiffs argue that the 

notices of appeal did not (and could not) state that the defendants desired to appeal from 

the final order on attorney fees, so the subsequent final order is “unappealed” and “not 

within the Court’s subject matter jurisdiction.” Plaintiffs rely on Howse v. Campbell, No. 

M1999-01580-COA-R3-CV, 2001 WL 459106, at *3 (Tenn. Ct. App. May 2, 2001), in 

which this Court held that a premature notice of appeal filed after an order dismissing one 

defendant did not perfect his appeal with respect to other defendants who were dismissed 
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over a year later. We explained that the appellant’s failure to file a second notice

“undermined the notice function that notices of appeal are intended to serve.” Id. 

However, we noted,

The facts of this case differ from the more common circumstance 

giving rise to a premature notice of appeal. Premature notices of appeal 

generally occur when a plaintiff attempts to appeal from the dismissal of one, 

but not all, of its claims against a single defendant. This notice is premature 

because the trial court has not yet adjudicated all the claims between the 

parties. However, the premature notice of appeal clearly puts the defendant 

on notice that the plaintiff intends to seek appellate review. This case involves 

multiple parties. The filing of a premature notice of appeal from the dismissal 

of the plaintiff’s claims against one of the parties does not necessarily put the 

remaining defendants on notice that the plaintiff will choose to appeal from 

the later dismissal of its claims against them.

Id. at *3 n.6 (emphasis added). Here, the facts fall within the “more common 

circumstance” discussed in Howse, involving a premature notice of appeal following the 

adjudication of “one, but not all,” of the pending claims. It did not involve defendants 

dismissed at different times. Therefore, this case is distinguishable from Howse.

This Court considered a situation more similar to ours in Consolidated Waste 

Systems, LLC v. Metro. Government of Nashville and Davidson County., No. M2002-

02582-COA-R3-CV, 2005 WL 1541860 (Tenn. Ct. App. June 30, 2005). In that case, an 

appellee argued that an appellant was precluded from raising issues regarding attorney fees 

when the notice of appeal stated that the appellant was appealing from a “final judgment 

entered on the 6th day of August 2002” and did not mention the order awarding attorney 

fees entered in October. Id. at *42. Although Tennessee Rule of Appellate Procedure 3(f) 

provides that a notice of appeal “shall designate the judgment from which relief is sought,”

we pointed out its Advisory Commission Comment, which states:

This subdivision specifies the content of the notice of appeal. The purpose of 

the notice of appeal is simply to declare in a formal way an intention to 

appeal. As long as this purpose is met, it is irrelevant that the paper filed is 

deficient in some other respect. Similarly, the notice of appeal plays no part 

in defining the scope of appellate review. Scope of review is treated in Rule 

13. This subdivision read in conjunction with Rule 13(a) permits any 

question of law to be brought up for review [except as otherwise provided in 

Rule 3(e)] as long as any party formally declares an intention to appeal in a 

timely fashion.

Id. at *42-43. We also discussed Rule 13(a), which provides that “any question of law may 

be brought up for review and relief by any party,” and its Advisory Commission Comment 
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stating that the rule “rejects use of the notice of appeal as a review-limiting device.” Id. at 

*42. At that time, Tennessee courts had considered the consequence of an appellant’s 

failure to specify a particular order as the basis of the appeal a number of times but with 

“differing treatment, depending on the circumstances.” Id. In some cases, this Court had 

held that “when a specific judgment or order is designated in the notice of appeal, Tenn. R.

App. P. 3(f) limits the scope of appellate review to the judgment or order designated.” Id.

at *44 (citing Goad v. Pasipanodya, No. 01A01-9509-CV-00426, 1997 WL 749462, at *2 

(Tenn. Ct. App. Dec. 5, 1997) relying on Hall v. Hall, 772 S.W.2d 432 (Tenn. Ct. App.

1989)). We also noted the Howse decision. Id. Ultimately, we acknowledged the 

argument that under the “Hall, Goad, and Howse” line of cases, “this court’s review would 

be limited to the appellant’s designation” and would not extend to the subsequent order on 

attorney fees. Id. at *45. However, we also noted that the situation before us did not 

involve any complicating factors such as multiple defendants or untimeliness, like some of 

the other cases. Id. We conceded that the notice of appeal could reasonably be interpreted 

either way, indicating an intention to appeal only the first order or the award of attorney 

fees as well. Id. Given the “varying interpretations” of Rule 3(f), “the clear preference [] 

for liberality in interpreting a notice of appeal and the scope of appeal,” and the lack of 

prejudice to the appellee from the failure to specifically designate the order on attorney 

fees, we concluded “the better view is that the [appellant] can raise any issue resulting from 

the trial court’s final judgment.” Id.

Since the decision in Consolidated Waste, this Court has noted the differing 

approaches to this issue numerous times. See, e.g., In re NHC--Nashville Fire Litig., 293 

S.W.3d 547, 557-58 (Tenn. Ct. App. 2008) (“Citing the language in Rule 3(f), this Court 

has at times refused to consider issues raised on appeal that were resolved in an order other 

than the one specified in the notice of appeal. . . . In other cases, the appellate court has 

focused on whether the “notice function” of Rule 3(f) has been served, to determine 

whether the scope of review must be limited to the order designated in the notice of 

appeal.”); Thompson v. Logan, No. M2005-02379-COA-R3-CV, 2007 WL 2405130, at 

*12 (Tenn. Ct. App. Aug. 23, 2007) (“Most of the cases use language indicating either a 

strict application of Rule 3(f) or else an approach declining to use that rule as an issuelimiting device and concentrating instead on the purpose of the notice of appeal.”). We 

have repeatedly taken the approach from Consolidated Waste. See In re Caleb F., No. 

M2016-01584-COA-R3-JV, 2017 WL 5712992, at *4 (Tenn. Ct. App. Nov. 28, 2017)

(“The notice of appeal is not a review-limiting device.”) (quotation omitted); Ray v. Ray, 

No. M2013-01828-COA-R3-CV, 2014 WL 5481122, at *10 n.9 (Tenn. Ct. App. Oct. 28, 

2014) (explaining that the notice of appeal “plays no part in defining the scope of appellate 

review” and “is not a review-limiting device” so when “any party files a notice of appeal 

the appellate court may consider the case as a whole”) (quotations omitted); McKissack ex 

rel. McKissack v. Davidson Transit Org., No. M2013-01224-COA-R3-CV, 2014 WL 

575912, at *2 n.3 (Tenn. Ct. App. Feb. 11, 2014) (“While we are aware of the various cases 

interpreting Tenn. R. App. P. 3(f), we decline to put narrow limits on the scope of appeal 

in this case.”); Cox v. Tenn. Farmers Mut. Ins. Co., 297 S.W.3d 237, 243 (Tenn. Ct. App. 
- 29 -

2009) (rejecting the argument that Rule 3(f) should be narrowly construed); Elliot v. Life 

of the S. Ins. Co., 296 S.W.3d 64, 68 (Tenn. Ct. App. 2008) (“Although Ms. Elliot appealed 

the order denying her motion to alter or vacate the orders for summary judgment, our 

review is not limited to only that order as it is well settled that the notice of appeal is not a 

review limiting device, and we may consider any question presented[.]”); In re NHC--

Nashville Fire Litig., 293 S.W.3d at 560 (“We accord great deference to the advisory 

commission comments to the effect that Rule 3(f) is not intended to limit the scope of 

review so long as the notice of appeal informs the appellee that the appellant intends to 

seek further review of the trial court’s judgment.”).

Plaintiffs’ brief on appeal relies on the Howse-Hall line of cases. We will instead 

apply the approach taken in Consolidated Waste and its progeny. Here, the initial order 

declaring the non-disparagement clause unenforceable and unconstitutional also included 

the trial court’s ruling that “Plaintiffs are entitled to recover their reasonable costs and 

attorney’s fees pursuant to 42 U.S.C. § 1988,” and it directed Plaintiffs to submit their 

applications for fees by a certain deadline. Although the defendants filed their notices of 

appeal before the final awards were determined, the premature notices of appeal served 

their purpose of sufficiently informing Plaintiffs that the defendants intended to seek 

further review of the trial court’s judgment. Thus, we reject Plaintiffs’ argument that this 

Court lacks subject matter jurisdiction to reach any issue regarding attorney fees. 

We now turn to the substance of the arguments presented on appeal regarding 

attorney fees. Metro’s brief on appeal did not raise any issue regarding the trial court’s 

award of attorney fees. However, it did state in a footnote that Metro adopted by reference 

and joined Dr. Joseph’s brief. Dr. Joseph’s brief contains one issue regarding attorney fees: 

“Whether qualified immunity should be extended to a former government employee in a 

suit initiated by his former employers to effectuate the policy rationale underpinning the 

doctrine of qualified immunity.” Dr. Joseph argues that “ordering [him] to pay attorney 

fees erodes public policy rationale underpinning the doctrine of qualified immunity and 

good faith defenses.” Plaintiffs contend that this issue should be deemed waived because 

it was raised for the first time on appeal. We agree. “[I]ssues not raised in the trial court 

cannot be raised for the first time on appeal.” Wallis v. Brainerd Baptist Church, 509 

S.W.3d 886, 898 (Tenn. 2016).

E. Attorney Fees on Appeal

Plaintiffs argue that because they prevailed on their federal constitutional claims in 

the trial court, they should also be awarded attorney fees on appeal in the event that they 

prevail. We conclude that Plaintiffs qualify as prevailing parties within the meaning of 42 

U.S.C. § 1988 and are entitled to an award of reasonable attorney’s fees incurred on appeal 

related to their constitutional claims. See Murrell v. Bd. of Admin. City of Memphis Pension 

& Ret. Sys., No. W2020-00187-COA-R3-CV, 2021 WL 1233500, at *5 (Tenn. Ct. App. 

Mar. 31, 2021) perm. app. denied (Tenn. Sept. 22, 2021). The trial court must determine 
- 30 -

a reasonable amount of fees on remand. See id.

IV. CONCLUSION 

For the aforementioned reasons, the decision of the chancery court is affirmed and 

remanded. All other issues are pretermitted. Costs of this appeal are taxed to the 

appellants, Shawn Joseph and Metropolitan Government of Nashville & Davidson Co., 

Metropolitan Nashville Board of Public Education, for which execution may issue if 

necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE