John S. McLellan, III, 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.


State of Tennessee Ex Rel. Sullivan County Tennessee Et Al. v. Tochev Et Al., No. E2023-00072-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2024). A taxpayer failed to pay property taxes for a number of years. The county began enforcement proceedings and, following the entry of a default judgment against the taxpayer, the taxpayer’s property was ultimately sold at a delinquent tax sale. The purchaser filed a writ of possession to obtain possession of the property from the taxpayer, at which time the taxpayer filed a motion to set aside the default judgment and resulting tax sale. The taxpayer alleged lack of notice concerning the underlying delinquent tax proceedings and violation of her due process and equal protection rights. The trial court denied the taxpayer’s motion to set aside, concluding the taxpayer was properly served with notice of the underlying delinquent tax proceedings. We affirm.


Huron, Et Al v. Kruglyak, Et Al., No. E2022-01812-COA-R3-CV (Tenn. Ct. App. Mar. 25, 2024). In this easement dispute involving a shared driveway between adjoining real property owners, the petitioners filed an action for declaratory judgment, alleging that the respondents had interfered with their use of the driveway and requesting that the court declare the “rights and obligations of the parties.” Acting without benefit of counsel, one of the two respondents filed a response opposing the petition and subsequently filed a motion for summary judgment asserting multiple counterclaims. The trial court dismissed the respondent’s counterclaims in an order not included in the appellate record. The trial court conducted a bench trial, during which all parties were represented by counsel. At trial, the petitioners sought an implied easement and an easement by necessity. The trial court determined, inter alia, that the parties had shared driveway easements and that the petitioners had carried their burden to prove an implied easement and an easement by necessity. The court included in its judgment parking limitations on the parties’ use of the shared driveway. The respondent who initially filed pleadings pro se has appealed, again acting without benefit of counsel. Discerning no reversible error, we affirm.


Coram Et Al v. Brasfield, M.D. Et Al, No. E2022-01619-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2024). Plaintiffs filed a health care liability action against several defendants. Following a hearing on the defendants’ motions to dismiss, the trial court determined that the plaintiffs failed to substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) and that the action was untimely. The plaintiffs appealed to this Court and, following our review, we reverse.


Peterson v. Carey, No. E2022-01656-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2023). Jason M. Peterson (“Plaintiff”) was the passenger in a vehicle driven by Jodi L. Carey (“Defendant”) at the time of a motor vehicle accident. Plaintiff filed a personal injury action against Defendant more than one year after the accident. Plaintiff argues that Tennessee Code Annotated section 28-3-104(a)(2) extends the statute of limitations for his action to two years because Defendant was cited for the violation of a traffic ordinance contained in the Kingsport Municipal Code in relation to the accident. The Circuit Court for Sullivan County (“trial court”) applied the one-year statute of limitations set forth in section 28-3-104(a)(1) and granted summary judgment in favor of Defendant. Finding no error, we affirm the judgment of the trial court.


Weatherly v. Eastman Chemical Company, No. E2022-01374-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2023). The plaintiff brought an action seeking damages for diminution of real property value, alleging that the defendant’s steam pipe exploded, causing toxic debris, including asbestos, to fall on the plaintiff’s real property. The plaintiff’s claims included strict liability forultra-hazardous activity, ordinary negligence, negligence per se, public nuisance, trespass, continuing private nuisance, and medical monitoring. The trial court dismissed the entireamended complaint without prejudice pursuant to Tennessee Rule of Civil Procedure 12.02(6) after finding that the plaintiff failed to comply with the Tennessee Asbestos Claims Priorities Act. The trial court also dismissed the claims for strict liability, negligence per se, trespass, and medical monitoring with prejudice. Upon review, we affirm the trial court’s dismissal of the entire complaint without prejudice, as well as the dismissal of the plaintiff’s negligence per se, trespass, and medical monitoring claims with prejudice. We reverse the trial court’s dismissal of the strict liability claim with prejudice.


Dunn v. Vukodinovich, No. E2021-00146-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023). This appeal arises from a suit to rescind a contract for the sale of a home due to fraud. The trial court found clear and convincing evidence of fraud justifying rescission. It ordered the buyer to convey the property back to the sellers, with the sellers returning the purchase price, minus the fair rental value of the property, with a credit to the buyer for various expenses he had incurred. However, the trial court declined to award any offset to the buyer for improvements he had made to the property. It also declined to award punitive damages but did award the buyer attorney fees. Taken together, the parties present twenty-five issues for review on appeal. We vacate in part, reverse in part, and remand for further proceedings.


In Re: Autumn D.,  E2022-00033-COA-R3-CV (Tenn. Ct. App. Oct.. 24, 2022).  This appeal arises from a common-law writ of certiorari filed in the circuit court; however, the dispositive issue on appeal is whether the juvenile court, which was presiding over a dependency and neglect action, retained jurisdiction to enter a custodial order after a petition to adopt the children at issue had been filed in the chancery court. The adoption petition was filed after a contested evidentiary hearing for the change of custody had concluded but prior to the juvenile court announcing its decision or entering an order. After the adoption petition was filed, the juvenile court entered an order removing the children from their grandmother’s custody and awarding custody to the mother. The grandmother challenged the jurisdiction of the juvenile court to enter the order by filing a petition for a common-law writ of certiorari. The circuit court granted the writ but held “that the Juvenile Court had the authority to enter the [post-petition custodial order] owing to the fact that proof had been heard on [the petition to change custody].” We respectfully disagree. Tennessee Code Annotated § 37-1-103(c) unambiguously states, “when jurisdiction has been acquired [by dependency and neglect proceedings] under this part, such jurisdiction shall continue until . . . a petition for adoption is filed regarding the child in question as set out in § 36-1-116(f).” (emphasis added). Furthermore, Tennessee Code Annotated § 36-1- 116(f)(2) directs that “any proceedings that may be pending seeking the custody . . . of the child . . . who is in the physical custody of the [adoption] petitioners on the date the petition is filed . . . shall be suspended pending the court’s orders in the adoption proceeding, and jurisdiction of all other pending matters concerning the child . . . shall be transferred to and assumed by the adoption court.” Here, the grandmother had legal and physical custody of the children when the adoption petition was filed. Accordingly, the juvenile court’s jurisdiction was automatically transferred to the chancery court upon the filing of the adoption petition. For these reasons, the juvenile court no longer had jurisdiction to enter an order removing custody from the petitioner in the adoption case, the grandmother. Accordingly, the judgment of the circuit court is reversed, and this matter is remanded with instructions for the circuit court to enter judgment holding that the juvenile court’s order changing custody is void for want of jurisdiction. 

Jackson v. Thibault,  E2021-00988-COA-R3-CV (Tenn. Ct. App. Oct.. 24, 2022). Plaintiff appeals the trial court’s decision to exclude her proffered expert for failing to comply with the locality rule expressed in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). Plaintiff also appeals the trial court’s decision to grant the defendants’ motion for summary judgment. Discerning no abuse of discretion, we affirm the decision of the trial court to exclude the expert. Additionally, we affirm the grant of summary judgment to defendants.


Peterson v. Carey, No. E2021-00430-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2022).  This negligence case arises from a one-car accident in which the Plaintiff Jason M. Peterson, a passenger in a car driven by Defendant Jodi L. Carey, was injured. Plaintiff filed his complaint more than one year after he was injured. Defendant moved to dismiss on the ground that the one-year statute of limitations for personal injuries, Tenn. Code Ann. § 28-3-104(a)(1)(A), had run and the case was untimely filed. Plaintiff argued that because Defendant was given a citation for failure to exercise due care, Tenn. Code Ann. § 28-3- 104(a)(2), which provides for a two-year limitations period if “[c]riminal charges are brought against any person alleged to have caused or contributed to the injury,” applies. Defendant responded that because the police issued her citation under the Kingsport Municipal Code, the total fine was fifty dollars, a penalty that was civil and not criminal in nature. The trial court dismissed Plaintiff’s action with prejudice, holding it was filed too late. Because no evidence of the citation was presented to the trial court, and there is no indication in the trial court’s final judgment that it considered the arguments regarding the citation, we vacate and remand for the trial court to consider the evidence and rule on the issue presented.

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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