William B. Acree, Senior Judge

Biography 

Report of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022

Text is the appellate court’s summary of the opinion. 

Scroll down for important information.

 

State of Tennessee v. Sexton, Jr., No. E2022-00884-CCA-R3-CD (Tenn. Crim. App. Feb.  2, 2024). In 2000, the Scott County Grand Jury indicted the Defendant, Hubert Glenn Sexton, Jr., for two counts of first degree premeditated murder, and the Defendant was convicted of both counts and was sentenced to death for each offense. State v. Sexton, 368 S.W.3d 371, 378 (Tenn. 2012). Thereafter, this court granted the Defendant post-conviction relief from these convictions and remanded his case for a new trial. Sexton v. State, No. E2018-01864-CCA-R3-PC, 2019 WL 6320518, at *26 (Tenn. Crim. App. Nov. 25, 2019). On retrial, the Defendant was again convicted of two counts of first degree premeditated murder and was sentenced to consecutive sentences of life without parole. In this appeal, the Defendant argues the trial court erred (1) by denying his constitutional right to self-representation under the Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee State Constitution, and (2) by allowing several witnesses to testify about allegations that the Defendant had sexually abused his stepdaughter prior to the killings in this case. After review, we affirm the judgments of the trial court.

 

Nelson v. Justice, No. E2021-01398-COA-R3-JV (Tenn. Ct. App. July 28, 2023).  The trial court found Appellant/Father in civil contempt for alleged failure to comply with discovery propounded by Appellee/Mother. The trial court also dismissed Father’s petition to modify visitation and child support on the ground that Father’s petition constituted an abusive civil lawsuit. We reverse the trial court’s findings of civil contempt and abusive civil lawsuit. However, because the parties’ child has reached majority, we conclude that Father’s petition to modify is moot. Therefore, we affirm the trial court’s dismissal of Father’s petition on the ground of mootness.

 

Parks v. Holland, No.E2021-01506-COA-R3-CV (Tenn. Ct. App. May 15, 2023).  This case arose from a legal malpractice action filed against a lawyer who had represented the plaintiff in an employment discrimination and wrongful termination action. The plaintiff provided no expert testimony to support his claims against the lawyer. Determining that the plaintiff had not presented proof to support his claim and that the defendant had presented evidence to negate an essential element of the plaintiff’s claim, the trial court granted summary judgment in favor of the defendant. Discerning no error, we affirm.

 

Lacey v. Big Lots Stores, Inc., M2019-00419-COA-R3-CV (Tenn. Ct. App. Jan. 12, 2023).  A woman filed a complaint alleging she was assaulted at a retail store.  Following a bench trial, the trial court concluded that the woman failed to prove her assault claim, and the woman appealed.  Due to the deficiencies in the woman’s appellate brief, this Court is unable to reach the substantive issues she raises, and we dismiss the appeal.

 

Potter v. State of Tennessee, E2021-01063-CCA-R3-PC (Tenn. Ct. App. Sept 15, 2022).  The Petitioner, Jenelle Leigh Potter, appeals the denial of her petition for post-conviction relief, wherein she challenged her convictions for two counts of first degree premeditated murder and one count of conspiracy to commit first degree murder. She claims that trial counsel was ineffective due to trial counsel’s failure to timely file a motion for new trial. After review, we affirm the judgment of the post-conviction court.

 

Harris, IV v. Bd. of Prof. Responsibility of the Supreme Court of the State of Tennessee, No. M2020-01113-SC-R3-BP (Tenn. April 29, 2022).  In this appeal from attorney disciplinary proceedings, the hearing panel found that the attorney’s testimony about his income in a juvenile court proceeding to reduce his child support obligation violated Tennessee Supreme Court Rule 8, RPC 8.4(c). The hearing panel said that the attorney’s answers were carefully crafted to give the appearance of literal truth but were in fact dishonest in that they intentionally omitted relevant information fairly called for in the questions. The hearing panel found that the presumptive sanction was disbarment, but it reduced the sanction to a one-year suspension in light of the attorney’s prior unblemished forty-year legal career. The attorney appealed the hearing panel’s decision to the circuit court, which affirmed. The attorney now appeals to this Court. He maintains that, in context, his answers were truthful and responsive to the specific questions asked, and that there was no violation of the Rules of Professional Conduct. He also contends that the sanction imposed by the hearing panel is overly harsh and an abuse of discretion. We affirm the trial court’s judgment upholding the hearing panel’s decision.

 

Cupples v. Holmes, No. W2021-00523-COA-R3-CV (Tenn. Ct. App. March 31, 2022). In this case involving a petition for grandparent visitation, where the minor child’s parents had divorced and the mother had been admitted to an inpatient rehabilitation facility, the maternal grandparents asserted that the minor child’s father had prevented them from visiting with the child once the father had obtained full custody of the child. The trial court conducted a hearing and subsequently granted to the grandparents’ monthly visitation with the child plus additional time during school breaks and holidays. The father has appealed. Discerning no reversible error, we affirm. We decline, however, to grant an award of attorney’s fees to the grandparents on appeal.

 

State of Tennessee v. Sonya Nale, No. E2021-00276-CCA-R9-CD (Tenn. Ct. Crim. App. March 22, 2022). The Defendant, Sonya Nale, is charged by indictment with bribery of a public servant, a Class B felony. See T.C.A. § 39-16-102 (2018). After the trial court granted the Defendant’s motion to disqualify the Twelfth Judicial District Attorney’s office, we granted the State’s application for an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9 to review the trial court’s order. We reverse the trial court’s order disqualifying the district attorney general’s office from prosecuting the case.

 

Jerry Alan Thigpen v. The Estate of Kent Howard Smith et al., No. M2020-01015-COA-R3-CV (Tenn. Ct. App. March 9, 2022). Appellant’s brief, in this case, fails to substantially comply with Rule 27 of the Tennessee Rules of Appellate Procedure. Therefore, we dismiss this appeal.

 

Kim Renae Nelson v. Loring E. Justice, No. E2020-01172-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2022). During a previous appeal in this action involving issues of child support and custody, this Court awarded to the mother her attorney’s fees incurred on appeal and remanded the matter to the trial court with instructions to determine the amount of such award. Following remand, the trial court conducted a hearing to consider evidence concerning the mother’s attorney’s fees. The trial court subsequently entered an order setting the mother’s award of reasonable attorney’s fees in the amount of $150,218.02. The father has appealed. Based upon our thorough review of the evidence presented, we modify the amount of attorney’s fees awarded to the mother from $150,218.02 to $123,195.00. Accordingly, the trial court’s judgment is affirmed as modified.

 

Understanding the Limitations and Use of the Information Found in This Book

Tennessee’s trial judges resolve hundreds of thousands of legal and factual issues in tens of thousands of cases every single year.  No appeal is filed in the vast percentage of those cases, indicating that while the “losing” party may not like a ruling on a particular issue, that party understands there was an appropriate reason for the judge’s decision or, at a minimum, the judge was acting within his or her discretion.

 

Of course, a small number of decisions of trial judges do result in an appeal. Experienced trial lawyers know that the number of cases appealed out of a particular trial judge’s court does not, in and of itself, reveal much about the trial judge. For example, some judges hear more complex cases than others, and those cases are more likely to be appealed. Convictions in child sex abuse cases are frequently appealed, as are many criminal cases resulting in long sentences. There are a large number of parental rights termination cases that find their way to the appellate courts.  Judges who routinely try those types of cases will, other things being equal, see more of their cases reviewed by appellate courts than judges who do not see such cases.

 

Second, certain litigants (and certain lawyers) are more likely to appeal a case than others.  Thus, judges who have those litigants or lawyers regularly appear in their courtrooms will find more cases reviewed by the appellate courts.

 

For these and other reasons, the reader is cautioned not to read too much into the number of cases appealed from a court.  Stated differently, there is no reason to believe that a judge who has ten cases reviewed by an appellate court in a single year is a “worse” judge than one who has one case appealed, or that a judge who has three cases appealed is a “better” judge than one who has nine cases appealed.

 

Next, the number of times a judge’s ruling is reversed by an appellate court is not necessarily indicative of the quality of his or her work. For example, experienced lawyers know that there are “holes in the law,” i.e., cases where there is no law directly on point and the judge is forced to predict what an appellate court would rule on the issue. The fact that a judge decided an open legal issue one way and an appellate court decided it another way does not mean that the trial judge was “wrong” or does not understand the law. It simply means that the trial judge had a different view of what the law should be than the appellate court that decided the issue. A trial judge is not blessed with a crystal ball that can with 100 percent accuracy forecast how an appellate court will rule on an undecided legal issue.

 

In addition, the trial court is sometimes not provided with the same in-depth legal arguments and law that is supplied to the appellate court by the parties, or which is provided by law clerks at the appellate level (many trial courts do not have law clerks). The trial judge may have reached the same conclusion as the appellate court if he or she had been supplied with additional law or argument.

 

Finally, the law changes constantly, and the trial judge may rule on a case based on today’s law, which may evolve between the time of that ruling and the issuance of an opinion of the appellate court. In such cases, the reversal of the case by the appellate court is a question of timing of the original court decision as compared to changes in the law, not one of error by the trial court.

 

So, what is the value of this book?  How can the trial lawyer use it to help his or her clients given the limitations expressed above? Permit me to digress slightly.

 

You have seen the coffee cups or t-shirts that proclaim, “A good lawyer knows the law, but a great lawyer knows the judge.”

 

Some read this phrase as suggesting that the “great lawyer” is one who has an improper relationship with the judge – that he or she can use a personal relationship to improperly influence the judge.  But most lawyers know better.  Most lawyers understand that “knowing the judge” means knowing the judge’s background, preferences concerning the presentation of evidence (including exhibits), arguments of motions, drafting of proposed orders, and given that experience, how he or she is likely to rule on a particular issue.  “Knowing the judge” also means knowing the local rules, local forms, local customs, and what things irritate the judge (and every judge is irritated by at least one thing that lawyers or litigants may do).

 

Many lawyers, particularly those in more rural areas of the state or who limit their practice to one area of law, understand the personality and preferences of the judges they see on a regular basis. Many of these lawyers may have a fair advantage appearing before that judge. (The advantage is “fair” because it results from experience and knowledge.)  That advantage – knowing how the judge thinks and his or her preferences – is not outcome-determinative, but it still may be an advantage, similar to a sports team playing on their home field.

 

Why did I say it “may” be an advantage, given what I said earlier about the benefits of “knowing the judge?”  Because simply knowing the judge’s thought processes and preferences is not enough. You still need to have the law and the facts on your client’s side.  And you need to be prepared to be able to give the judge what he or she needs to know to make a ruling.

 

So, the purpose of “The Book” is to give Tennessee lawyers case-related information to help them understand the trial judge who will rule on their client’s case or preside over a jury trial. By looking at past appellate court rulings arising from cases decided by the trial judge, anyone unfamiliar with a judge can get a “feel” for the judge. The case data contained herein does not compare with daily or weekly appearances in front of the judge on issues like a given case, but it is readily available information that give you an idea of how the judge has ruled in the past on a variety of matters.

 

The cases included are those originally decided by the trial judge that were in appellate court opinions released on or after January 1, 2022.  Note that there are a substantial number of judges who first took office in 2022 and thus it is reasonable to assume that there will be no appellate decisions for such judges until late 2023 or 2024.

 

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