Gregory S. McMillan, Judge

Biography

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.

 

Williams v. Williams, Jr., No. E2023-00810-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2024). This appeal arises from the issuance of an order of protection against the appellant, Rodney Williams, Jr. We, however, have determined that the appellant’s brief is profoundly deficient for it fails to comply with Rule 27(a) of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee in several material respects. Based on the appellant’s failure to substantially comply with Rule 27(a)(6)–(7) of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee, the appellant has waived his right to an appeal. Accordingly, this appeal is dismissed.

 

Roberts v. Roberts, No. E2023-00856-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2023) (memorandum opinion). This is an appeal from a final order entered on March 17, 2023. The notice of appeal was not filed with the Appellate Court Clerk until June 5, 2023, more than thirty days from the date of entry of the order from which the appellant is seeking to appeal. Because the notice of appeal was not timely filed, we have no jurisdiction to consider this appeal.

 

Craig v. McCabe, No. E2022-01571-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2023). The appeal is dismissed because Appellant’s brief fails to comply with Tennessee Rule of Appellate Procedure 27(a)(7)(A) and Tennessee Court of Appeals Rule 6(a). In addition, Appellant failed to provide a written transcript of the relevant proceedings despite our order requiring same. The absence of a transcript negates our ability to review the trial court’s substantive findings, and the failure to comply with the rules of briefing puts this Court in the position of having to create Appellant’s arguments, which we decline to do. Appeal dismissed.

 

 

Covarrubias v. Baker, No. E2023-00025-COA-R3-CV (Tenn. Ct. App. Nov. 9, 2023). This appeal concerns a petition to modify alimony. Gerald Edward Baker (“Petitioner”) filed a petition in the Circuit Court for Knox County (“the Trial Court”) against his ex-wife Kim Covarrubias (“Respondent”) seeking to modify his alimony obligation as a result of a massive post-retirement drop in his income. After a hearing, the Trial Court entered an order declining to modify Petitioner’s alimony obligation despite having found that Petitioner was credible; that his decision to retire was objectively reasonable; and that a substantial and material change in circumstances had occurred. Petitioner appeals. We find, inter alia, that the Trial Court erred by failing to account for Petitioner’s ability to pay in light of all of his expenses. The Trial Court’s decision lacked a factual basis properly supported by evidence in the record; was not based on the most appropriate legal principles applicable to the decision; and was not within the range of acceptable alternative dispositions. Thus, the Trial Court abused its discretion. We reverse the judgment of the Trial Court and remand for the Trial Court to modify Petitioner’s alimony obligation.

Grande v. Grande, No. E2022-01253-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2023).  This appeal concerns divorce-related issues. In October 2019, Michael Grande (“Husband”) filed for divorce against Dr. Kimberly Grande (“Wife”) in the Circuit Court for Knox County (“the Trial Court”). In March 2021, the Trial Court entered its Final Judgment for Divorce, which incorporated the parties’ Marital Dissolution Agreement (“the MDA”). In September 2021, Husband filed a petition for civil contempt against Wife. In its June 2022 final order, the Trial Court found among other things that Wife was in civil contempt of court. Wife appeals. Husband raises his own issues as well. We find, inter alia, that Wife is not in civil contempt for pre-MDA conduct when the MDA purported to resolve the very issues subject to the contempt petition and Husband has not asserted a claim of fraud. We reverse the Trial Court’s findings of civil contempt against Wife, as well as the judgments against Wife in the amounts of $27,000 and $11,171.80, respectively. We also reverse the Trial Court’s award of attorney’s fees to Husband, and decline to award either party attorney’s fees and expenses incurred on appeal. Otherwise, we affirm the judgment of the Trial Court. We thus affirm, in part, and reverse, in part.

 

Wilder v. Wilder, No. E2022-00990-COA-R3-CV (Tenn. Ct. App. July 27, 2023).  This appeal concerns a long-running domestic matter. Heather R. Wilder (“Mother”) and Joseph C. Wilder (“Father”) were issued a final judgment of divorce by the Circuit Court for Knox County (“the Trial Court”) in 2010. Issues concerning child support have persisted since then. In the most recent chapter, the Trial Court allowed Mother’s attorney to withdraw five days before trial but denied her request for a continuance. The Trial Court subsequently entered its final order. Mother appeals. We find that the Trial Court abused its discretion in denying Mother a reasonable continuance. We vacate the Trial Court’s judgment and remand for a new trial to be conducted after Mother has had a reasonable continuance in which to try to retain counsel or otherwise prepare for trial pro se.

 

Ritenour v. Bennett, No. E2023-00540-COA-R3-CV (Tenn. Ct. App. June 13, 2023) (memorandum opinion).  This is an appeal from a final order entered on March 9, 2023. The Notice of Appeal was not filed with the Appellate Court Clerk until April 12, 2023, more than thirty days from the date of entry of the order from which she is seeking to appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

 

In Re Emarie E., No. E2022-01015-COA-R3-PT (Tenn. Ct. App. May 24, 2023). In this termination of parental rights case, Appellants, Mother and stepfather, filed a petition to terminate Appellee Father’s parental rights on the grounds of abandonment by failure to support and failure to visit. Father asserted the absence of willfulness as an affirmative defense. At the close of proof on grounds, the trial court orally found that abandonment by failure to support was not shown, but abandonment by failure to visit was proven. At the close of all proof, the trial court reconsidered its oral ruling on grounds and determined that Father’s failure to visit was not willful. In its written order, the trial court found that grounds for termination had not been proven and that, even if grounds existed, termination of Father’s parental rights was not in the child’s best interest. Discerning no error, we affirm.

 

Dulaney v. Chico, No. E2022-00047-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2023).  The appellant in this case challenges the trial court’s entry of an order of protection against her. She argues that an order of protection should not issue when the sole incident for which the appellee sought the order of protection occurred more than a year and a half before appellee filed the petition for an order of protection. Under the circumstances of this case, we agree with the appellant and reverse the judgment of the trial court.

 

Thompson v. Thompson,  No. E2022-00345-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2022). This appeal involves an interstate custody matter. The mother and child reside in Massachusetts while the father resides in Tennessee. The father attempted to obtain custody of the child by filing an emergency petition in the Knox County Juvenile Court. The juvenile court dismissed the petition for lack of subject matter jurisdiction. The father appealed the juvenile court’s decision to the Knox County Circuit Court which, also finding a lack of subject matter jurisdiction, dismissed the appeal. We affirm.

 

Abernathy v. Barlie, No. E2022-00081-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2022). Kyndra Abernathy (“Petitioner”) petitioned the trial court for an order of protection against Icker Derek Barile (“Respondent”), alleging that he sexually assaulted her. After a hearing at which each party proceeded pro se, the trial court issued a one-year protective order, finding that Respondent engaged in sexual penetration without Petitioner’s consent and continued after she told him to stop. Respondent appeals, arguing that the trial court erred by considering irrelevant and inadmissible evidence and that its decision was against the weight of the evidence. We affirm.

 

Loveday v. Colehammer, E2022-00361-COA-R3-CV (Tenn. Ct. App. Aug. 23, 2022) (memorandum opinion).  Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

 

Goodrich v. Morgan, E2021-01045-COA-R3-CV (Tenn. Ct. App. Aug. 23 2022).  A meeting between siblings about their deceased mother’s estate went awry. As a result of the meeting, one sister, and her spouse, sought a protective order against the sister’s brother. After a hearing, the trial court granted the protective orders. We affirm.

 

Frontz v. Hall, No. E2021-00154-COA-R3-CV (Tenn. Ct. App. June 15, 2022).  Lauren Frontz (“Petitioner”) filed a petition for an order of protection against her exboyfriend Tristan J. Hall (“Respondent”) on July 31, 2020. The trial court granted an ex parte order of protection and set a hearing for ten days later. Several bridging orders were subsequently entered by the trial court extending the length of time for the protective order. Petitioner alleged Respondent was guilty of criminal contempt by violating the order of protection. After a hearing, the trial court found Respondent guilty on five counts of criminal contempt and sentenced him to fifty days in jail. The trial court also awarded Petitioner her attorney’s fees in the amount of $77,525.75. Respondent appeals, arguing that the bridging orders were invalid and that the trial court erred in its award of attorney’s fees. We affirm.

Saleh v. Pratt, No. E2021-00965-COA-R3-CV (Tenn. Ct. App. May 17, 2022).  This appeal arises after the trial court found the defendant in contempt of an order of protection and sentenced him to 510 days of incarceration. We affirm the judgment holding the appellant in contempt in its entirety.

Judzewitsch v. Judzewitsch, No. E2022-00475-COA-T10B-CV (Tenn. Ct. App. Apr. 29, 2022).  This is an accelerated interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B section 2.02 from the trial court’s denial of a motion for recusal. We have determined the petition must be summarily dismissed due to numerous and substantive failures to comply with Rule 10B section 2.02, including the failure to file a copy of the motion for recusal, supporting documents filed in the trial court, and a copy of the trial court’s order denying recusal. Accordingly, the appeal is dismissed.

 

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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