J. Mark Rogers, Judge (Service Ended September 1, 2023)


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.


Edwards v. Edwards, No. M2022-00614-COA-R3-CV (Tenn. Ct. App. June 30, 2023).  In this post-divorce action, the trial court modified the permanent parenting plan to provide the father with equal co-parenting time after the father and the mother had, by oral agreement, lived by an alternate plan for approximately sixteen months during the COVID19 pandemic in an effort to adapt to their child’s virtual education from home. The mother has appealed, arguing that the trial court erred by finding a material change in circumstance affecting the child’s best interest and by determining that modification of the parenting plan was in the child’s best interest. Both parties have requested attorney’s fees on appeal. Discerning no reversible error, we affirm. We decline to award attorney’s fees to either party.


In Re Leah T., No. M2022-00839-COA-R3-PT (Tenn. Ct. App. June 22, 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 three statutory grounds for termination had been proven by clear and convincing evidence. The trial court further determined that the petitioners had provided clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interest. The mother has appealed the best interest determination. Upon our review, we affirm the trial court’s finding as to the statutory grounds of abandonment through failure to support, abandonment through failure to visit, and severe abuse of the child’s sibling. 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).


Scharasch v. Cornerstone Financial Credit Union, No. M2020-01621-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2023).  After a borrower defaulted on a note and deed of trust, the lender sent a cure notice and, later, a notice of foreclosure. But the borrower did not receive either notice. When the borrower failed to cure the default, the home was sold at foreclosure. The borrower then sued to set aside the sale, arguing that the lender breached the deed of trust and violated Tennessee law by failing to deliver proper notice. The trial court granted summary judgment in favor of the lender, concluding that the notices only needed to be sent to, not received by, the borrower. We agree and affirm.


Smith v. Built-more, LLC, No. M2021-00749-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2023). In this appeal from a judgment enforcing a settlement agreement, the appellant contends that the trial court erred in granting her counsel leave to withdraw. She further contends that she lacked the capacity to agree to the settlement. We discern no error in granting counsel leave to withdraw. And because the appellant failed to file a transcript or statement of the evidence, we must presume that the trial court’s findings relating to the appellant’s capacity are supported by the evidence. So we affirm.


Reinhart Foodservice, Inc. v. Patel, No. M2021-00983-COA-R3-CV (Tenn. Ct. App. Feb. 3, 2023).  A restaurant supplier brought suit for breach of a guaranty. The guarantor admitted liability. So the trial court entered partial summary judgment on that issue. The supplier then moved for summary judgment on damages. The guarantor challenged the admissibility of the evidence submitted in support of the motion. But the trial court ruled that the evidence was admissible under the business records exception. And, based on the undisputed facts, the court granted the motion for summary judgment. We conclude that some of the supplier’s evidence should have been excluded. So we vacate the summary judgment on damages.


Seybold v. Metz, M2022-00290-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2022). This case involves a petition for contempt filed against the defendant arising out of a dispute over an easement. The plaintiff maintained that the defendant violated the court’s prior order implementing a permanent injunction with regard to the easement. The trial  court dismissed the petition finding that the plaintiff had not proven the requisite elements of contempt. We affirm.


City of Lavergne v. Gure, M2021-00148-COA-R3-CV (Tenn. Ct. App. Aug. 25, 2022).  A circuit court found that a motorist violated the city’s ordinance prohibiting speeding. On appeal, the motorist argues that the circuit court should have granted his motion to dismiss. He also argues that the court improperly excluded evidence from Google Maps showing his speed and that the evidence preponderates against the finding that he was speeding. Although the court erred in excluding the Google Maps evidence, we affirm.


Friedsam, III v. Krisie, M2021-00530-COA-R3-CV (Tenn. Ct. App. Aug. 25, 2022).  Mother appeals the trial court’s decision to award Father equal parenting time with the child, arguing that limitations are warranted under Tennessee Code Annotated section 36-6-406. We affirm the trial court’s findings that neither abandonment nor abusive conflict support limitations on parenting time under section 36-6-406. We vacate the trial court’s finding that limitations are not warranted due to physical abuse or a pattern of emotional abuse because the trial court made no finding as to whether such abuse occurred. Finally, Mother’s argument as to the exclusion of evidence is waived, as she made no offer of proof.


Noblelynn Shelby Norris v. Terry Jamar Norris, No. M2020-01289-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2022). This appeal arises from a petition for divorce filed in the Chancery Court for Rutherford County (the “trial court”). Noblelynn Shelby Norris (“Wife”) was granted a divorce from Terry Jamar Norris (“Husband”) after a hearing held on September 30, 2019. The trial court named Wife primary residential parent of the parties’ minor son, set child support, and awarded Wife her attorney’s fees. Because the trial court has never awarded Wife a specific amount of attorney’s fees, however, the order appealed from is nonfinal and must be 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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