Joe H. Thompson, 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.


Schanel v. Richardson,  No. M2022-00800-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2023).  This appeal arises from a divorce after a very brief marriage. The parties had one young son at the time of the divorce. The trial court declared the parties divorced, named the mother primary residential parent, largely adopted her proposed parenting plan, and calculated child support after imputing income to the mother based on a finding of voluntary underemployment. The father appealed and raises three issues, primarily arguing that he should be named primary residential parent or at least have additional parenting time. The mother raises a host of issues regarding various other provisions of the parenting plan. For the following reasons, we affirm the decision of the circuit court as modified.


Fulmer v. Sargo, GP, No. M2022-01479-COA-R3-CV (Tenn. Ct. App. Sept. 7, 2023) (memorandum opinion).  This is an action to recover amounts due under a promissory note. The trial court awarded the plaintiffs $50,000.00 in compensatory damages, attorney’s fees of one-third of that amount, and prejudgment interest on both the compensatory damages and attorney’s fees. We affirm the trial court’s judgment that the individual defendants are individually liable on the obligation and that the ad damnum clause permitted the plaintiffs to recover $50,000.00 in compensatory damages, plus attorney’s fees and prejudgment interest. We vacate the attorney’s fees award and remand for a determination of the plaintiffs’ reasonable attorney’s fees. We reverse the award of prejudgment interest on the attorney’s fees award only. Affirmed in part, vacated in part, reversed in part, and remanded.


In re Trust of Nellie B. Fontanella, No. M2022-01822-COA-R3-CV (Tenn. Ct. App. July 14, 2023) (memorandum opinion).  This is an appeal from an order requiring a trustee to provide an updated accounting to a beneficiary at the beneficiary’s expense. Because the order does not resolve all of the claims between the parties, we dismiss the appeal for lack of a final judgment.


Benbow v. L. & S. Family Entertainment, LLC, No. M2022-00491-COA-R3-CV  (Tenn. Ct. App. July 12, 2023). This case concerns claims of negligence against several people and entities for allegedly serving alcohol to and/or failing to protect a 20-year-old man who died in a car accident while intoxicated. John D. Benbow (“Plaintiff”), individually and as next of kin to his son, Jacob N. Benbow, deceased, filed a wrongful death action in the Sumner County Circuit Court (“the Trial Court”) against the defendants, L&S Family Entertainment, LLC d/b/a Strike & Spare (“L&S”); JPZ, LLC d/b/a Silverado Rivergate Sports Bar & Grill (“Silverado’s”); 1 Rancho Cantina, LLC (“Rancho Cantina”); Jody D. McCutchen; Brandi McCutchen; and Brenon D. McCutchen (“the McCutchens”). Certain of the defendants filed motions for summary judgment. The Trial Court granted summary judgment for Rancho Cantina, L&S, Brandi, and Jody. 2 However, the Trial Court denied summary judgment for Brenon.3 Plaintiff appeals. We affirm the Trial Court’s grant of summary judgment to Jody because Plaintiff failed to create any genuine issue of material fact that Jody took charge of Jacob. However, we reverse the Trial Court’s grants of summary judgment to Rancho Cantina, L&S, and Brandi, as genuine issues of material fact exist with respect to Plaintiff’s claims against those parties. We observe that the standard is comparative fault, not contributory negligence. Whether Jacob was at least 50% at fault for comparative fault purposes is a question not properly resolvable at this summary judgment stage under the facts of this case. We thus affirm, in part, and reverse, in part. We remand to the Trial Court for further proceedings consistent with this Opinion.


In Re Mitchell B., No. M2022-01285-COA-R3-PT (Tenn. Ct. App. May 24, 2023).  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 abandonment by failure to visit and failure to support. Father also appeals the trial court’s determination that termination of his parental rights is in the child’s best interest. Discerning no reversible error, we affirm.


Bean v. Bean, No. M2022-00394-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2022).  Mother appeals the trial court’s decision to award equal parenting time after making no findings regarding her allegations of abuse by Father. Because the trial court stated that there was no evidence of abuse in the record despite the plethora of relevant testimony by both parties, we are unable to ascertain the trial court’s reasoning. We therefore vacate the trial court’s judgment and remand for further findings.


Adamson v. Grove, No. M2020-01651-COA-R3-CV  (Tenn. Ct. App. Nov. 30, 2022).  In this case, the plaintiff filed a complaint alleging defamation and related causes of action. Before the defendants filed an answer or any other pleading, the plaintiff filed a notice of voluntary dismissal, and the trial court entered an order of voluntary dismissal without prejudice. Within thirty days, the defendants filed a combined motion to alter or amend and petition to dismiss the complaint with prejudice pursuant to the Tennessee Public Participation Act (TPPA), Tenn. Code Ann. § 20-17-101, et seq., seeking an award of attorney fees and sanctions. The trial court ultimately entered an order altering or amending the order of voluntary dismissal without prejudice, granting the defendants’ petition to dismiss with prejudice under the TPPA, and ordering the plaintiff to pay $15,000 in attorney fees in addition to $24,000 in sanctions. The plaintiff has appealed and raised numerous issues, including a challenge to the trial court’s subject matter jurisdiction after the nonsuit. For the following reasons, we reverse the trial court’s order granting the motion to alter or amend, vacate the trial court’s order granting the appellees’ petition to dismiss with prejudice and awarding attorney fees and sanctions, and remand.


Hall v. Hall, No. M2021-00757-COA-R3-CV (Tenn. Ct. App. May 24, 2022).  In this post-divorce action, the trial court conducted a hearing with respect to the mother’s request to relocate to Ohio with the parties’ minor child, a request which the father opposed. Following a bench trial, the trial court entered an order permitting relocation and modifying the parties’ permanent parenting plan to provide the father with more co-parenting time. The trial court also granted an award of attorney’s fees to the mother. The father has appealed. Based on the trial court’s failure to render sufficient findings of fact and conclusions of law concerning its award of attorney’s fees to the mother, we vacate the attorney’s fee award and remand the case to the trial court for entry of an order containing written findings of fact and conclusions of law concerning the basis for its decision to award attorney’s fees to the mother and the reasonableness of the amount awarded. The trial court’s judgment is affirmed in all other respects.


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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