James L. Gass, Judge


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.


Cook v. Jefferson County, Tennessee, No. E2022-01537-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2023).  This case involves an accident between a motor vehicle and a school bus that occurred on Highway 11E on a foggy December morning in Jefferson County, Tennessee. The automobile was traveling eastbound on Highway 11E when it struck the bus, which was stopped across the two eastbound lanes of Highway 11E positioned to make a left turn onto the westbound lanes. The driver of the car, Jacob Cook, sustained serious injuries as a result of the impact. Mr. Cook, together with his grandfather, Rickey Macari, who owned the vehicle, brought an action in tort seeking damages against Jefferson County, the Jefferson County Board of Education, and the driver of the school bus, Harold Moody. In their complaint, Mr. Cook and Mr. Macari alleged that Mr. Moody’s negligence in stopping the school bus across the eastbound lanes was the proximate cause of Mr. Cook’s injuries. The defendants filed a counterclaim alleging that Mr. Cook’s negligence, and not Mr. Moody’s, was the proximate cause of the accident because Mr. Cook had been speeding when the accident occurred. During a bench trial, the defendants’ expert witness, an accident reconstructionist, opined that Mr. Cook had been speeding at the time of the accident but that Mr. Cook’s car would have collided with the stopped school bus even had he been following the speed limit. At the conclusion of the bench trial, the trial court found that Mr. Cook was indeed speeding at the time of the accident, but that Mr. Moody should not have attempted to turn left across the eastbound lanes given the traffic and weather conditions. Accordingly, the trial court determined that Mr. Moody’s actions were the proximate cause of Mr. Cook’s injuries and allocated 80% of the fault for the accident to Mr. Moody, with 20% of the fault assigned to Mr. Cook. The defendants timely appealed. Discerning no reversible error, we affirm the trial court’s judgment with one modification: we direct the trial court to dismiss Jefferson County as a defendant because the Jefferson County Board of Education, as the owner of the school bus, is undisputedly the proper defendant in this action.


Willhite v. Willhite, No. E2023-01058-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2023).  This is an appeal from a final order entered on November 23, 2022. The Notice of Appeal was not filed with the Appellate Court Clerk until June 27, 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.


State of Tennessee v. Dunn,  No. E2021-00343-CCA-R3-CD, p. 19 (Tenn. Ct. Crim. App. July 5, 2022).  The Cocke County Grand Jury indicted Defendant, Toby Dunn, for attempted first degree murder in count one, aggravated assault in count two, employment of a firearm during the commission of a dangerous felony in count three, and possession of a firearm during the commission of a dangerous felony in count four. A jury found Defendant guilty in count one of the lesser-included offense of attempted second degree murder and guilty as charged in all other counts. At sentencing, the trial court merged counts one and two and merged counts three and four. The court sentenced Defendant to twelve years’ incarceration with a thirty percent release eligibility in count one and to a consecutive six years’ incarceration with a 100 percent release eligibility in count three. On appeal, Defendant argues that the trial court erred by limiting cross-examination of the victim, by excluding a video of the victim, and by admitting Defendant’s prior bad act. He also argues that the State failed to establish the chain of custody for the firearm, that the evidence was insufficient to support his convictions, and that his sentence was excessive. After a thorough review, we affirm the judgments of the trial court.


Gilbert v. State of Tennessee, No. E2021-00737-CCA-R3-PC (Tenn. Ct. Crim. App. May 13, 2022).  Following a bench trial, Ronald Wayne Gilbert (“Petitioner”) was convicted of especially aggravated kidnapping and aggravated assault, for which he received an effective sentence of thirteen and one-half years’ incarceration. This court affirmed Petitioner’s convictions on direct appeal. State v. Ronald Wayne Gilbert, No. E2017-00396-CCA-R3-CD, 2018 WL 2411835, at *1 (Tenn. Crim. App. May 29, 2018), perm. app. denied (Tenn. Sept. 13, 2018). Petitioner filed a pro se post-conviction petition and an amended petition following the appointment of counsel. Following a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that he was denied the effective assistance of counsel based on counsel’s failure to argue that the evidence was insufficient to sustain his conviction for especially aggravated kidnapping based on State v. White, 362 S.W.3d 559 (Tenn. 2012). Petitioner further argues that his conviction for especially aggravated kidnapping constitutes plain error. After a thorough review of the record and applicable case law, the judgment of the post-conviction court is affirmed.


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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