Mike Pemberton, 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.


In Re: Matthew D., No. E2023-00880-COA-R3-PT (Tenn. Ct. App. Apr. 16, 2024). This is an appeal of a termination of a mother’s parental rights to her son. Ashley D. (“Petitioner”), who has maintained custody of Matthew D. (“the Child”) since he was four months old, sought termination of the parental rights of Natalie D. (“Mother”). The Circuit Court for Roane County (“the Trial Court”) found that clear and convincing evidence established the statutory ground of abandonment by failure to support and that it was in the best interest of the Child that Mother’s parental rights be terminated. Mother appeals. We affirm the Trial Court’s judgment.


Houghton v. Malibu Boats, LLC, No. E2023-00324-COA-R3-CV (Tenn. Ct. App. Apr. 12, 2024). This appeal concerns standing and subject matter jurisdiction. Brett and Ceree Houghton (“Plaintiffs”) were the sole shareholders of Great Wakes Boating, Inc. (“GWB”), a Malibu Boats, LLC (“Defendant”) dealership. Defendant ended its dealership agreement with Plaintiffs, and GWB failed. Plaintiffs sued Defendant in the Circuit Court for Loudon County (“the Trial Court”) for intentional misrepresentation, fraudulent concealment, and promissory fraud. The jury awarded Plaintiffs $900,000 in damages for loss of equity in certain real property owned by GWB. Defendant filed a motion for judgment notwithstanding the verdict and/or for a new trial. At a hearing on the motion, Defendant argued for the first time that Plaintiffs lacked standing. The Trial Court agreed and entered an order dismissing Plaintiffs’ complaint for lack of subject matter jurisdiction, deeming the other issues in Defendant’s motion moot. Plaintiffs appeal. We hold that Defendant’s challenge to Plaintiffs’ standing went to the merits and did not implicate subject matter jurisdiction. Defendant’s challenge to Plaintiffs’ standing is waived as untimely raised. We reverse the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.


Bruce v. Jackson Et Al., No. E2023-00443-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2024). In this intrafamily dispute, a son sued his mother and various other family members following the death of his father. The claims included, inter alia, breach of contract, libel and slander, and wrongful death. The defendant family members eventually filed a motion for summary judgment, arguing that statutes of limitation barred several of the son’s claims, and that there was no evidence the son could point to in support of his additional claims. Following a hearing, the trial court granted summary judgment to the defendants and dismissed the suit. The son appeals. Having determined that the son’s brief is not compliant with the relevant rules of briefing in this Court, we conclude that his issues purportedly raised on appeal are waived and the appeal is dismissed.


Brock v. Eick, No. E2023-00021-COA-R3-CV (Tenn. Ct. App. Oct. 27, 2023). This appeal came on to be heard upon the record from the Circuit Court for Meigs County, arguments of counsel, and briefs filed on behalf of the respective parties. Upon consideration thereof, this Court is of the opinion that there is no reversible error in the trial court’s judgment.


Owings v. Owings, E2021-01330-COA-R3-CV (Tenn. Ct. App. Aug. 19, 2022).  The plaintiff in this personal injury action was a passenger in a vehicle driven by the defendant when an accident occurred after an animal purportedly ran into the roadway. Upon the defendant’s motion and following a hearing, the trial court granted summary judgment in favor of the defendant, finding that the plaintiff had presented no evidence of negligence on the part of the defendant. The plaintiff has appealed. Discerning no reversible error, we affirm.


Charles Stromsnes et al. v. RRM et al., No. E2021-00246-COA-R3-CV (Tenn. Ct. App. Jan. 28, 2022). The plaintiffs appeal the trial court’s grant of the defendants’ motion to involuntarily dismiss the action at the conclusion of the plaintiffs’ presentation of their evidence, pursuant to Tennessee Rule of Civil Procedure 41.02. The plaintiffs’ brief on appeal severely fails to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6. We, therefore, find that the plaintiffs have waived their issues on appeal.


Shane Bruce v. Carolyn Jackson Et Al., No. E2021-01426-COA-R3-CV (Tenn. Ct. App. Jan. 10, 2022). Because appellant did not timely file a Tenn. Sup. Ct. R. 10B recusal appeal and the order appealed does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.


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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