In Tennessee, Trial Court Determination of Credibility of Telephonic Testimony Should be Provided Same Deference on Appeal as In-Person Testimony.

The Tennessee Supreme Court in Terri Ann Kelly v. Willard Reed Kelly, No. E2012-02219-SC-R11-CV, 2014 WL 4437671 (Tenn. 2014) discussed the appropriate level of deference an appellate court should provide to a trial court’s consideration of a witness who provided testimony by telephone.  This case involved a child custody issue.  One of the mother’s witnesses testified by telephone at trial.  The husband did not object to this testimony by telephone.  On appeal, the Tennessee Court of Appeals found the determination of credibility by the trial court for telephonic testimony should not be given any deference by the appellate court because the trial court lacked the ability to view the actual witness.  This was then appealed to the Tennessee Supreme Court.

The Tennessee Supreme Court first noted that in this case the parties cited no rule or Tennessee law that would actually permit testimony by telephone.  However, due to the fact that nobody objected, the Court did not take issue with this fact (although if you are on the other side of this issue in the future you should certainly object and cite this opinion).  The Court then turned to the issue of the appropriate level of deference that should be afforded to the trial court’s determination of witness credibility when it took testimony by telephone.  The general rule is that for “live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses' credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses.”  Kelly at 6. (citing State v. Binette, 33 SW.3d 215, 217 (Tenn. 2000)). 

In deciding this issue, the Tennessee Supreme Court ultimately disagreed with the Court of Appeals decision and instead found that telephonic testimony should be given the same level of deference as live testimony.  The Court found that even by telephone the trial court is better situated to gauge the credibility of the witness when compared to an appellate court’s ability to evaluate the witness.  The trial court actually heard the witness’ voice in testify...

What is an Additur and When can it be Applied to Change a Jury Verdict in Tennessee?

Analysis:  Judges in Tennessee are often called the “thirteenth juror” because they have the ability to modify a jury’s verdict.  One such way they can change a jury verdict is under T.C.A. § 20-10-101 which provides for an “additur” which simply means the judge can add an amount to the damages that are awarded by a jury.  Specifically, T.C.A. § 20-10-101(a)(1) provides as follows:

(a)(1) In cases where, in the opinion of the trial judge, a jury verdict is not adequate to compensate the plaintiff or plaintiffs in compensatory damages or punitive damages, the trial judge may suggest an additur in such amount or amounts as the trial judge deems proper to the compensatory or punitive damages awarded by the jury, or both such classes of damages.

As a result, if the trial judge considers the jury verdict to be inadequate to compensate the plaintiff, then the judge can suggest an amount to add to the compensatory or punitive damages awarded by the jury.  If this occurs, the defendant has the option to simply accept the additur and then it is considered to be the verdict of the court.  Specifically, T.C.A. § 20-10-101(a)(2) provides as follows:

(2) If the additur is accepted by the defense, it shall then be ordered by the trial judge and become the verdict, and if not accepted, the trial judge shall grant the plaintiff's motion for a new trial because of the inadequacy of the verdict upon proper motion being made by the plaintiff.

If the defendant does not accept the additur, then the trial judge is required to grant the plaintiff’s motion for a new trial and the new trial can then proceed.  The defendant also has the option to appeal the judge’s additur to the Tennessee Court of Appeals.  Specifically, T.C.A. § 20-10-101(b)(1) provides as follows:

(b)(1) In all jury trials had in civil actions, after the verdict has been rendered and on motion for a new trial, when...

Should an Appeal from a General Sessions Judgment in Tennessee be Dismissed for Failure to Post a Surety Bond when Appeal Court Costs are Paid?

Brief Summary:  In the context of a General Sessions appeal, when a party pays the appeal court costs under T.C.A. § 8-21-401, a case should not be dismissed for failure to post a surety bond.

Analysis:  The Tennessee Court of Appeals decision of Adrian Fields v. Byron Williams and Sterling Marshall, No. W2012-01949-COA-R3-CV, 2013 WL 1845450 (Tenn.Ct.App. 2013) involved an appeal from a circuit court dismissal of a general sessions appeal for failure to post the surety bond as required under T.C.A. § 27-5-103.  In this case, the general sessions court entered a defense verdict and on that same day the plaintiff filed a notice of appeal and paid the costs pursuant to T.C.A. § 8-21-401(b)(1)(C)(I) which provides as follows:

(C) In the following specific types of civil actions, the clerk shall charge a standard court cost of one hundred fifty dollars ($150) at the institution of a case:

(i) Appeals to the circuit or chancery court from juvenile court, general sessions court, probate courts, municipal courts or an administrative hearing; writs of certiorari from lower courts; or administrative hearings;

Tennessee Appeals – Tennessee Interlocutory and Extraordinary appeals in fiscal year 2011 – 2012.

Every year the Tennessee Administrative Office of the Courts publishes the “Annual Report of the Tennessee Judiciary” to provide, in part, information on appellate cases in Tennessee (this report also provides comprehensive statistics on the trial courts in Tennessee).  The fiscal year, 2011 - 2012 (July 1, 2011 – June 30, 2012), report is the most recent report that has been released and it provides fascinating details about all aspects of Tennessee litigation.  This post will concentrate on some statistical information on interlocutory (Rule 9) and extraordinary (Rule 10) Appeals in Tennessee.  I cannot cover everything in this post so I recommend you review the full report if you have the opportunity.  It is 339 pages long so there is a lot of good statistical information.

Interlocutory Appeal by Permission of the Trial Court:

Under Tennessee Rule of Appellate Procedure 9, parties have the ability to pursue an interlocutory appeal by permission from the trial court.  An interlocutory appeal is an appeal in a case before the entire case is final.  Under Rule 9, a party must file a motion seeking an interlocutory appeal within 30 days “after the date of entry of the order appealed from.”  If the trial court grants this motion, a party is not guaranteed to be heard by the appellate court.  Rule 9 provides that if the trial court grants the motion, then an application for permission to appeal must be filed with the appellate clerk within 10 days of the trial court order.  Then, “the appellate court may thereupon in its discretion allow an appeal from the order.”  If the intermediate appellate court denies the application for permission to appeal, then a “Application for Permission to Appeal from Denial of Rule 9 Application” can be filed with the Tennessee Supreme Court.

Federal Sixth Circuit Court of Appeals - Reversal and timing statistics

This is a good article that I thought you might be interested in concerning reversal statistics for the US Court of Appeals for the Sixth Circuit.  This is from the Sixth Circuit Appellate Blog which is a great blog that keeps you up to date on cases and information pertaining to the Sixth Circuit Court of Appeals.  This information is essential for anyone practicing in Federal Court within the Sixth Circuit.

One interesting statistic is that 16% of the decisions appealed to the Sixth Circuit Court of Appeals were reversed on appeal.  This is higher then any Federal Circuit other then the D.C. Circuit Court of Appeals.  Also, it takes an average of 14.7 months for an appeal in the Sixth Circuit.

Summary Judgment – In Tennessee the trial court must appropriately state the legal grounds for summary judgment in the order

Analysis:  The Tennessee Court of Appeals in the recent decision of Mary C. Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250 (Tenn. Ct. App. January 18, 2013) discussed the requirement that a trial court state the legal grounds for summary judgment in the order.  Specifically, Tennessee Rule of Civil Procedure 56.04 provides as follows:

The motion shall be served at least thirty (30) days before the time fixed for the hearing. The adverse party may serve and file opposing affidavits not later than five days before the hearing. Subject to the moving party’s compliance with Rule 56.03, the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be included in the order reflecting the court’s ruling. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

In the Smith case, the trial court granted a motion for summary judgment and requested the defendant's attorney to prepare the order discussing the basis and support for the granting of the motion for summary judgment.  Smith at 6 - 8.  In fact, the trial court judge made the following comments on the record:

Now the appellate court is going to want a rationale from our rulings, so in the case of agency I'm going to let the, on the ones for which you were successful, I'm going to let you make proposed [orders].... As far as a basis for the ruling, I'm going to let you make those.

Smith at 6.  These comments were directed at counsel for the defendant.  The court then entered the proposed orders drafted by counsel for the defendant over the objections of the plaintiff. Smith at 6.  The plaintiff therefore appealed the rulings of the court and asserted the court did not comply with Tennessee Rule of Civil Procedure 56.04.  The Tennessee Court of Appeals discussed prior cases on this issue and found:

Tennessee Tort Reform – Maximum appeal bond reduced to $25,000,000.00

The Tennessee tort reform legislation of 2011 reduced the maximum amount of an appeal bond required of the appellant when the case is appealed after plaintiff obtains a judgment under “any legal theory”.  The new legislation repealed the old T.C.A. § 27-1-224 and replaced it with the following:

(a) If a plaintiff in a civil action obtains a judgment under any legal theory, the amount of the appeal bond necessary to stay execution during the course of all appeals or discretionary reviews of that judgment by any appellate court shall not exceed the lesser of twenty-five million dollars ($25,000,000) or one hundred twenty-five percent (125%) of the judgment amount.

(b) For purposes of determining the amount of the required bond, the court shall not include punitive or exemplary damages in the judgment amount.

(c) Notwithstanding subsections (a) and (b), if a party proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter orders that are necessary to protect the appellee and establish the bond amount, which may include any punitive or exemplary damages.

(d) If the appellant establishes by clear and convincing evidence at a post judgment hearing that the cost of the bond and the obligation resulting from the surety's payment of the bond in an amount authorized by this section will render the appellant insolvent, the court shall establish a security in an amount, and other terms and conditions it deems proper, that would allow the appeal of the judgment to proceed, without resulting in the appellant's insolvency. This subsection (d) should be narrowly construed.

(e) If this section is found to be in conflict with any rules prescribed by the supreme court, this section shall apply notwithstanding § 16-3-406.

This new statute reduces the maximum appeal bond amount from $75,000,000.00 to $25...