Douglas T. Jenkins, Chancellor
Reports 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.
Gordon v. Tenn. Dept. of Homeland Security and Safety, No. E2022-01175-COA-R3-CV (Tenn. Ct. App. Dec. 5, 2023). The petitioner’s employment as a Tennessee highway patrolman was terminated for cause after he attended a training course on breathalyzer machines and, as part of the training, submitted two breath samples that returned positive numbers for alcohol content in his blood. The petitioner appealed, but his termination was upheld in the first two steps of the internal appeals process by the respondent, the Tennessee Department of Safety and Homeland Security (“the Department”). The petitioner appealed to the Tennessee Board of Appeals, which conducted a hearing on the matter. Prior to the hearing, Mr. Gordon filed a motion in limine, seeking to exclude the two breathalyzer test results on grounds that the tests were not conducted in compliance with the evidentiary requirements for breathalyzer test results. The Board declined to exclude the breathalyzer test results and upheld the petitioner’s termination, ending the Department’s internal appeals process. The petitioner sought judicial review with the trial court. The trial court reversed and modified the Board’s decision, determining that the Board improperly considered the numeric breathalyzer test results and that without them there was no substantial and material evidence remaining to support the Board’s decision to terminate Mr. Gordon’s employment. Nonetheless, the trial court determined that some discipline was warranted and accordingly ordered the Department to reinstate the petitioner with back pay and benefits to one year following his dismissal, in effect sanctioning petitioner with a one year suspension without pay. The Department timely appealed. Discerning no reversible error, we affirm.
JTM Enterprises v. Oddello Industries, LLC, No. E2022-00855-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2023). he parties’ dispute centers upon whether a tenant is required to pay rent for a particular ten-month period. The landlord asserts that it delayed but did not waive payment. The tenant counters that the landlord’s agent waived rent and that the tenant forbore terminating the lease based on the agent’s representations. The trial court, after setting aside a default judgment, concluded that the landlord’s agent did not have the authority to waive rent but had the authority to modify the lease to reduce rent for three of the ten months. The tenant appeals, arguing that the trial court erred in its determination as to the agent’s authority, the issue of estoppel, and the issue of waiver. The landlord asserts that the trial court erred in setting aside the default judgment and in reducing the rent for the three-month period. After a review of the record, we affirm the setting aside of the default judgment but reverse the trial court’s ruling on the agent’s authority and remand for further proceedings.
Priscilla Smith v. Sharon Berry Et Al., No. E2023-00281-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2023). Priscilla Smith filed a complaint in the Chancery Court for Hawkins County (“the Trial Court”) against multiple neighbors, including Michael and Sharon Berry. She sought access to her property by way of an undeveloped road called Hyder Lane. The Berrys’ garage was on the undeveloped road. After trial, the Trial Court determined that Hyder Lane was a public road and ordered the garage to be removed and the road opened for Ms. Smith’s use and access to her property. The Berrys appealed. Having concluded that certain indispensable parties were never joined to the action, we vacate the Trial Court’s judgment and remand for the joinder of these indispensable parties.
Rushing v. Rushing (Strickland) , No. E2022-01229-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2023). This is an appeal of a modification to a permanent parenting plan. Dawn Rushing Strickland (“Mother”) filed a motion to modify the permanent parenting plan governing the custody and visitation of two children from her prior marriage to Stephen Rushing (“Father”). The Chancery Court for Hamblen County (“Trial Court”) granted the motion and modified the permanent parenting plan to designate Mother the primary residential parent and grant her 265 co-parenting days and Father 100 co-parenting days. Father has appealed. Upon our review of the final order, we conclude that the Trial Court erroneously considered Mother’s gender in determining that a material change in circumstance had occurred affecting the children’s best interest and that its finding that the best interest factors did not favor one parent over the other demonstrates that Mother failed to carry her burden of proof. We accordingly reverse the Trial Court’s modification of the permanent parenting plan. Mother’s request for attorney’s fees on appeal is denied
Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023). The plaintiff purchased a home at an auction. The home was sold “as is.” The plaintiff sued the defendant marketing firm which had advertised the property for auction, alleging that it had actual knowledge of mold issues but did not disclose them to bidders, and that it misrepresented the acreage of the real property. The plaintiff’s claims for breach of contract, fraudulent concealment, and reckless misrepresentation proceeded to a jury trial. The defendant moved for a directed verdict at the close of the plaintiff’s proof, which the court denied, but did not renew its motion for a directed verdict at the close of all the proof. After the jury returned a verdict for the plaintiff, the defendant did not file a post-trial motion seeking a new trial. On appeal, we conclude that the defendant waived its right to contest the trial court’s denial of its motion for a directed verdict by failing to file a motion asking for a new trial as required by Tennessee Rule of Appellate Procedure 3(e). We further conclude that the defendant waived appellate review of whether the evidence was sufficient to support the jury’s verdict on the fraudulent concealment, breach of contract, and reckless misrepresentation claims by failing to renew its motion for a directed verdict at the close of all proof in the jury trial. We grant the plaintiff’s request for reasonable attorney fees pursuant to Tennessee Code Annotated section 27-1-122.
Ramsey v. Brant, No. E2022-01503-COA-R3-CV (Tenn. Ct. App. July 28, 2023). The notice of appeal filed by the appellants, Nathan Lynn Bryant and Melissa Bryant, stated that appellants were appealing the judgment entered on September 27, 2022. Inasmuch as the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.
In Re Robert McPhail Hunt, Jr., No. E2022-00649-COA-R3-CV (Tenn. Ct. App. June 12, 2023). This appeal arises out of a settlement agreement between the parties that resolved the distribution of the decedent’s estate’s assets. Under the settlement agreement, Appellant agreed to receive $1,800,000.00 from a joint brokerage account in his name and the decedent’s name. Appellant alleged that he was entitled to $1,800,000.00 outright and was not required to pay the capital gains taxes associated with the disbursement of such funds. Appellant also alleged that he was entitled to post-judgment interest on the $1,800,000.00. The trial court concluded that Appellant was responsible for the capital gains taxes associated with the disbursement and that Appellant was not entitled to post-judgment interest on the same. Discerning no error, we affirm.
In Re Liberty T., No. E2022-00307-COA-R3-PT (Tenn. Ct. App. Mar. 29, 2023). In this case involving a petition to terminate the mother’s parental rights to her child and to allow the petitioners to adopt the child, the trial court determined that one statutory ground for termination had been proven by clear and convincing evidence. However, the trial court further determined that the petitioners had failed to establish clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interest. The trial court accordingly dismissed the petition and remanded to the juvenile court’s protective jurisdiction. The petitioners have appealed the best interest determination, and the mother has raised an issue regarding the statutory ground. We affirm the trial court’s finding as to the statutory ground of failure to support. However, having determined that under the facts of this case the trial court erred in applying the statutory best interest factors applicable to the initial termination petition rather than those applicable to the amended petition, we reverse the trial court’s best interest finding and remand for reconsideration applying the amended best interest factors contained in Tennessee Code Annotated § 36-1-113(i) (Supp. 2022).
In Re Disnie P., No. E2022-00662-COA-R3-PT (Tenn. Ct. App. Mar. 9, 2023). This is an appeal involving the termination of parental rights. The trial court entered an order terminating the parental rights of both the parents on the ground of abandonment by failure to support pursuant to Tennessee Code Annotated sections 36-1-113(g)(1) and 36- 1-102(1)(A)(i). However, the court found that the petitioners failed to establish the following grounds for termination: (1) failure to manifest an ability and willingness to parent; (2) abandonment by incarcerated parent for wanton disregard pursuant to section 36-1-102(1)(A)(iv); (3) substantial noncompliance with a permanency plan; and (4) persistent conditions. Additionally, the court found that termination was in the best interests of the child. Both parents appeal, and the petitioners also challenge the trial court’s findings that two of the grounds were not established. We conclude as follows: (1) we reverse the court’s finding that the ground of abandonment by failure to support was established as to both of the parents; (2) we reverse the court’s finding that the ground of persistent conditions was not established as to the mother but affirm as modified as to the father; (3) we vacate the ground of failure to manifest an ability and willingness as to both of the parents but remand only as to the father; and (4) we reverse the court’s finding that termination of both of the parents’ parental rights was in the best interests of the child and remand to the trial court for findings on the new best interest factors. Accordingly, we vacate in part, reverse in part, affirm in part as modified, and remand for further proceedings consistent with this opinion.
In Re Kelyahna T., E2022-01336-COA-R3-PT (Tenn. Ct. App. Nov. 10, 2022). The trial court clerk notified this Court that a final judgment has not been entered. This Court ordered the appellant to show cause why this appeal should not be dismissed. Appellant failed to respond to our show cause order. As no final judgment has been entered, this Court lacks jurisdiction to consider this appeal.
Mangum v. Mangum, No. E2021-00285-COA-R3-CV (Tenn. Ct. App. Nov. 7, 2022). This appeal concerns a divorce. Larry Mark Mangum (“Husband”) sued Laney Celeste Mangum (“Wife”) for divorce in the Chancery Court for Hamblen County (“the Trial Court”). After a trial, the Trial Court entered its final judgment, which Wife appealed. In Mangum v. Mangum, No. E2018-00024-COA-R3-CV, 2019 WL 1787328 (Tenn. Ct. App. April 24, 2019) (“Mangum I”), we vacated the Trial Court’s judgment except as to the divorce itself. We remanded with instructions for the Trial Court to make findings of fact and conclusions of law that consider all of the relevant and applicable statutory factors guiding child custody and property division matters, respectively. On remand, the Trial Court entered a new final judgment in light of our Opinion in Mangum I. Wife appeals, arguing that the Trial Court erred in fashioning the permanent parenting plan concerning the parties’ two minor sons (“the Children”) as well as in its classification, valuation, and division of the parties’ property. Husband raises the separate issue of whether this appeal is frivolous. We find that the Trial Court, in considering all of the relevant statutory factors, complied with our instructions on remand. We find, inter alia, that the evidence does not preponderate against the Trial Court’s findings with respect to its application of the statutory factors.
Robinson v .Robinson, No. E2020-01535-COA-R3-CV (Tenn. Ct. App. June 29, 2022). In this divorce action, the husband contends that the trial court erred by: (1) declining to award him alimony; (2) declining to adopt his valuation of the couple’s three Subway franchises; (3) finding that he dissipated $65,000 from the marital estate; (4) awarding the wife a larger share of the marital estate; (5) imputing income of $58,000 to him for child support purposes; and (6) declining to award him his attorney’s fees at trial. We affirm the trial court’s rulings on all but one of these issues, finding that the evidence preponderates against the trial court’s determination regarding the amount of marital assets the husband dissipated. We also deny the husband’s request for attorney’s fees on 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.
