M. Nichole Cantrell, Chancellor (Service Ended April 18, 2023)


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.


Farber v. Nucsafe, Inc., No. E2022-00428-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2023).  This is a breach of contract action between a lender, borrower, and guarantor on a promissory note. When the borrower ceased payment on the promissory note and the borrower and guarantor failed to cure the default, the lender commenced this action against the borrower and the guarantor. After extensive discovery, the lender passed away, and the personal representatives of the lender’s estate were substituted as the party plaintiffs. The estate filed a motion for summary judgment based on two grounds. The first ground was that in their discovery responses, the defendants admitted that they failed to remit payments as required by the promissory note. Second, the defendants’ discovery responses denied that the defendants had any facts or evidence upon which to support the affirmative defenses that the lender violated the doctrine of good faith and fair dealing and/or that the note was unenforceable. The defendants filed a response in opposition to the summary judgment motion, supported by the affidavit of the president of both defendants. Relying on the affidavit, the defendants asserted, for the first time, that neither defendant was ever liable for the debt because the lender had never remitted the loan proceeds to the borrower. The trial court ruled that the bulk of the affidavit was inadmissible on three grounds. First, it found the officer’s testimony regarding conversations with the deceased lender inadmissible under the Dead Man’s Statute, Tennessee Code Annotated § 24-1-203. Second, it found certain statements were directly contradictory to previous discovery responses, so the court accordingly rejected the evidence under the Cancellation Rule. Third, it found the business records the affiant referenced in his affidavit but did not produce failed to satisfy the best evidence rule. After considering the statement of undisputed facts, discovery responses, and the defendants’ admissions, the trial court concluded that the material facts were undisputed and that the estate was entitled to judgment as a matter of law. Accordingly, it granted the estate’s motion and awarded a judgment for the outstanding principal and interest totaling $260,710.00 and $12,445.28 in attorneys’ fees and expenses. The defendants appealed. We affirm.


KLDW Wyocorp, Inc. v. Hall, E2022-00799-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2022).  Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.


In Re Bobby G., Jr., E2021-01381-COA-R3-PT (Tenn. Ct. App. July 25, 2022).  In this termination of parental rights case, Appellant/Father appeals the trial court’s termination of his parental rights to the minor child on the grounds of: (1) abandonment by an incarcerated parent by failure to support and by wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), and 36-1-102(1)(A)(iv); and (2) incarceration as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court, Tenn. Code Ann. § 36-1-113(g)(6). Appellant also appeal the trial court’s determination that termination of his parental rights is in the child’s best interest. Because the relevant statutory time period is not specified in the trial court’s order and in view of the sparsity of evidence, we reverse the trial court’s termination of Appellant’s parental rights on the ground of abandonment by an incarcerated parent by failure to support. We affirm the trial court’s termination of Appellant’s parental rights on the remaining grounds, and on its finding that termination of Appellant’s parental rights is in the child’s best interest.


Gergel v. Gergel, No. E2020-01534-COA-R3-CV (Tenn. Ct. App. Apr. 26, 2022). In this divorce action, the husband appeals the trial court’s distribution of the marital estate, denial of the husband’s request for alimony in futuro, grant to the wife of sole decision-making authority over the parties’ minor child, and grants to the wife of attorney’s fees and discretionary costs. The husband, who received disability benefits for a prior mental health diagnosis, also appeals the trial court’s finding that he was voluntarily unemployed and the court’s denial of his motion to strike certain expert witness testimony. Having determined that an unspecified portion of the discretionary costs awarded to the wife for fees related to three expert witnesses, one vocational rehabilitation consultant and two psychiatrists, were not allowable under Tennessee Rule of Civil Procedure 54.04(2), we vacate the trial court’s award of discretionary costs as to the fees for these three experts’ work with the exception of $2,070.00 in demonstrably allowable fees paid to the vocational consultant. We remand for a specific determination of the fees for these three experts allowable, if any, as an award of discretionary costs to the wife under Rule 54.04(2). We also modify the trial court’s award of discretionary costs to the wife for court reporter fees to reduce them slightly pursuant to Rule 54.04(2). We otherwise affirm the trial court’s judgment. We deny the wife’s request for an award of attorney’s fees on appeal.


Philip James Burt v. Shannan Denise Burt, No. E2021-01173-COA-R3-CV (Tenn. Ct. App. Jan. 05, 2022). The Notice of Appeal filed by the appellant, Philip James Burt, stated that appellant was appealing the judgment entered on September 13, 2021. As the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.


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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