The Total Garage Store, LLC. v. Nicholas C. Moody

11/24/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 2, 2020 Session

THE TOTAL GARAGE STORE, LLC v. NICHOLAS C. MOODY

Appeal from the Chancery Court for Montgomery County
No. MC-CH-CV-CD-18-9 Kathryn Wall Olita, Judge1

No. M2019-01342-COA-R3-CV

This appeal concerns a noncompetition agreement. The Total Garage Store, LLC (“TGS”)
sued former employee Nicholas C. Moody (“Moody”) in the Chancery Court for
Montgomery County (“the Trial Court”). TGS alleged that Moody violated his
noncompetition agreement (“the Agreement”). At the end of a hearing on TGS’s motion
for a temporary injunction held 35 days after suit was filed, the Trial Court invoked Tenn.
R. Civ. P. 65.04(7) to declare that the hearing was on the merits of the case, not just the
injunction. The Trial Court found the Agreement enforceable and entered an injunction
order. Later, TGS filed a motion for contempt against Moody alleging that he violated the
order. After a hearing, the Trial Court found Moody guilty of six counts of criminal
contempt. The Trial Court also awarded damages to TGS. Moody appeals. Because the
record does not reflect that Moody received adequate notice that the injunction hearing also
would be on the merits, we vacate the Trial Court’s judgment as it pertains to Moody’s
alleged violation of the Agreement. However, this does not and did not entitle Moody to
ignore the temporary injunction, and we affirm the Trial Court in its finding Moody guilty
of criminal contempt. We therefore affirm, in part, and vacate, in part, the Trial Court’s
judgment, and remand for further proceedings consistent with this Opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, in Part, and Vacated, in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and KRISTI M. DAVIS, JJ., joined.

Mark R. Olson, Clarksville, Tennessee, for the appellant, Nicholas C. Moody.

David L. Johnson, Tara L. Blake, and Katelyn E. Marshall, Nashville, Tennessee, for the
appellee, The Total Garage Store, LLC.

1
Sitting by designation.
 OPINION

Background

In February 2015, Moody was hired by TGS, a company that installs and repairs
garage doors. TGS has four locations in Tennessee: Knoxville, Nashville, Clarksville, and
Jackson. Moody worked at the Clarksville location. On March 2, 2018, following a dispute
over a pay discrepancy, Moody left TGS. Moody quickly went into the garage door
business himself. On March 23, 2018, TGS filed a verified petition as well as a motion for
temporary injunction against Moody in the Trial Court. TGS alleged that Moody was in
violation of the Employee Non-Competition, Confidentiality, and Non-Disclosure
Agreement—or, the Agreement—which he purportedly signed on April 8, 2015. Among
other things, the Agreement restricted Moody under certain conditions from competing
with TGS in the garage door business within 75 miles of any TGS office for 24 months
after his exit from the company. The pertinent provision of the Agreement reads as follows:

[I]f Employee voluntarily terminates his/her employment with Company or
his/her employment with Company is terminated for cause, for a period of
twenty-four (24) months after the date Employee’s employment is
terminated, Employee will not, directly or indirectly: (i) solicit or initiate
contact, for the purpose of providing competitive products or services, to
persons, companies, firms, or corporations who are, at the time during the
last eighteen (18) months of Employee’s employment, clients and/or
customers of Company; (ii) solicit any of Company’s employees for any
competitive service or business; (iii) work for a competitor or perform
competitive services for a competitor; or (iv) plan, organize or engage as
principal, employee, or otherwise in any business within Seventy-Five (75)
miles of any office of the Company in existence at the time of termination,
in competition with the business conducted by Company.

On April 27, 2018, some 35 days after TGS filed suit, a hearing was conducted
before the Trial Court. Among the witnesses to testify was William Earnest (“Earnest”),
President and Owner of TGS. Earnest stated that Moody’s signing the Agreement was a
precondition to his being hired. According to Earnest, the purpose of the Agreement was
to protect TGS’s trade secrets and other confidential information. Earnest stated “[i]t’s
designed so someone can’t take our price list and go to a competitor with that.” Earnest
described Moody as having been “our lead residential service technician.” Earnest testified
that Moody interacted with customers, knew the company’s “pricing points,” and for three
years had been “the face” of the company locally. Earnest testified to the many months
spent training Moody, who had no prior experience in the garage door business. At the
time of his departure, Moody was earning $56,000 per year at TGS. Earnest asked the
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Trial Court for a temporary injunction “[t]o protect the investment we made in our business
and to protect our other employees.”

Moody testified. Upon leaving TGS, Moody opened up Tuckessee Garage Doors,
his own residential garage door business. Moody denied ever signing the Agreement in
the first place. Moody testified that he remembered signing a certain one-page document,
but what TGS presented in court was not it. Further, Moody testified that he believed he
had been hired by TGS to do commercial as opposed to residential work, and was restricted
only from performing commercial work in competition with TGS. Moody acknowledged
that he sometimes performed residential work while at TGS. Moody denied contacting
any of TGS’s clients.

The Trial Court ultimately found in favor of TGS. In so doing, the Trial Court found
the Agreement enforceable and that Moody had, in fact, signed it. As the hearing neared
its end, the Trial Court invoked Tenn. R. Civ. P. 65.04(7) to declare that the hearing was
both on TGS’s motion for a temporary injunction and on the merits of the case. The
following exchange ensued:

MR. JOHNSON [counsel for TGS]: … We have indicated that we’re -- that
we’re only asking the Court to enforce this agreement for a year and a half,
but at this point, this is just a temporary injunction, so the Court need not
really get into the issue at this juncture about how -- how far --
THE COURT: The Court can consolidate it as a hearing on the merits, which
I’m looking up my citation here --
MR. JOHNSON: Okay.
THE COURT: -- which is typically what I do.
MR. JOHNSON: Okay. Well, you know, for now, a preliminary injunction
is appropriate, but I -- but I -- I want to mention one thing. We did not hear
any proof at all, no argument or evidence presented either in the filings or
evidence on the stand, of Mr. Moody trying to indicate that there was any
hardship by this noncompete agreement being imposed. There was nothing
about any -- about how he can’t find another job. We all know what the
economy is right now, and so -- that they have no basis to argue that
imposition of the noncompete agreement puts any burden on Mr. Moody as
a consequence of that, that they could offer any proof whatsoever. And for
all of these reasons, Your Honor, we respectfully ask that you enter a
temporary injunction.

***

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 THE COURT: All right. Rule 65.04(7) allows me to consolidate a hearing
on the merits. I think this will be the first one I’ve ever done, and there’s
been a substantial number of where I’m not going to do that. I realize we
have damage proof perhaps in the future. We have some other possible
discovery issues that are coming up based upon the testimony here. But I
will tell you that if you’ll look at 65.04(7) where it talks about the -- at a
future hearing, facts do not need to be brought up again that were brought up
today, I will be a real stickler on that. So it needs to be the new stuff.

In May 2018, the Trial Court (Chancellor Laurence M. McMillan, Jr., at this stage)
entered an order modifying the non-compete radius from 75 to 50 miles from TGS’s
Clarksville facility, but otherwise enjoining Moody from violating the Agreement
according to its terms. The Trial Court stated, as relevant:

Moody was employed by TGS as a service technician from February
26, 2015, until March 2018. On April 8, 201[5], he signed an Employee
Non-Competition, Confidentiality, and Non-Disclosure Agreement (“the
Agreement”). Moody performed both residential and commercial work on
behalf of TGS. After his departure from TGS, Moody admittedly has
engaged in the garage door business in the Clarksville area.
Notwithstanding Moody’s testimony, the Court finds that Moody
signed the Agreement and that it is enforceable. Based on Tennessee case
law, the Court rejects Moody’s argument that the Agreement is
unenforceable due to a failure of consideration, as Mr. Moody continued to
be employed by TGS for many months after he signed the Agreement. The
Court also finds that Moody voluntarily signed the Agreement such that the
noncompete provision applies.
Although the Court finds that the 24-month term of the Agreement is
reasonable, the Court exercises its power to modify the geographic range of
the noncompete provision such that it is limited to a 50-mile radius from
TGS’s Clarksville facility only.
Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED
that Moody is ENJOINED from violating the terms of the Agreement,
although Section 3(a) of the Agreement is narrowed to a radius of 50 miles
from TGS’s Clarksville office. This injunction shall be in effect until March
2, 2019, upon TGS’s posting of a bond in the amount of $10,000.00.
The Court further ORDERS that, pursuant to Tenn. R. Civ. P.
65.04(7), any evidence presented during this evidentiary hearing shall not be
repeated at any subsequent trial.

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 Additional procedural matters unfolded in the case. In June 2018, Moody filed his
answer. In August 2018, TGS filed a motion for contempt alleging that Moody had since
violated the Trial Court’s May 2018 injunction order by performing garage door work
within the proscribed radius. In February 2019, Chancellor McMillan recused himself after
Moody retained new counsel. The case was reassigned to Judge Kathryn W. Olita. In
March 2019, Moody filed a motion seeking to amend his answer to assert additional
affirmative defenses. Also in March 2019, the Trial Court entered an amended injunction
order, which was substantially similar to the order entered originally. In May 2019, the
Trial Court entered an order denying Moody’s motion to amend his answer, stating that
“Defendant seeks to pursue issues that were adjudicated during the Court’s April 27, 2018
evidentiary hearing on Plaintiff’s motion for an injunction.” The Trial Court stated further
that “[t]he Court’s May 21, 2018 Order reiterates that it was invoking Tenn. R. Civ. P.
65.04(7) and that ‘any evidence presented during this evidentiary hearing shall not be
repeated at any subsequent trial.’” The Trial Court, having found that Moody failed to
timely object to or otherwise seek relief from consolidation, concluded that the only
remaining issues were those of damages and contempt.

In June 2019, final proceedings were held. The criminal contempt proceeding was
bifurcated from the hearing on breach of contract and civil contempt. Although TGS
alleged over 100 violations of the injunction order, it settled on pursuing only seven charges
of alleged criminal contempt by Moody. TGS put on witnesses to testify to the work
Moody performed. To show that Moody performed these jobs within 50 miles of TGS’s
Clarksville facility, TGS relied on Google Maps to establish the necessary distances. Upon
request by TGS and over Moody’s objection, the Trial Court took judicial notice of the
distances as established by Google Maps.

Later that June, the Trial Court entered two orders—one pertaining to damages and
civil contempt, and one pertaining to criminal contempt. In the former order, the Trial
Court again rejected Moody’s effort to revisit the merits of the case, stating in part:

At the outset, the Court considered Plaintiff’s Motion for Judicial
Notice. For the reasons announced by the Court in open court and that are
set forth in the Court’s audio recording of the proceedings (which is
incorporated herein by reference), the Court granted Plaintiff’s Motion for
Judicial Notice for both proceedings as it relates to the use of Google Maps.
The Court also considered Defendant’s objection to the ruling set
forth in Chancellor Laurence M. McMillan, Jr.’s May 21, 2018 Order (as
amended March 22, 2019) invoking Tenn. R. Civ. P. 65.04(7) and finding
that evidence presented during the April 27, 2018 hearing would not be
repeated. The Court made the specific findings of fact as it relates to this
issue:
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• The injunction hearing in this case that was consolidated with a trial on the
merits as to the validity and enforceability of the parties’ contractual
agreement did not merely consist of arguments submitted by counsel for both
sides. The record reflects that exhibits were admitted into evidence and that
witnesses testified during the hearing.
• The parties and their counsel were specifically advised by the Chancellor
that this was a consolidated hearing on the merits under Rule 65.04(7) and
that no further proof would be presented on these issues.
• Rule 65.04(7) expressly affords the trial court the prerogative of advancing
the trial on the merits of matters that pertain to applications for injunctive
relief. The Rule states in pertinent part, “Before or after the
commencement of the hearing of an application for a preliminary injunction,
the court may order the trial of the action on the merits to be advanced and
consolidated with the hearing of the application.” Tenn. R. Civ. P. 65.04(7)
(emphasis added).
• It was, therefore, the Chancery Court’s prerogative, as afforded by Tenn.
R. Civ. P. 65.04(7), to advance the trial of the action on the merits and to
consolidate the trial on the merits with the hearing of the application for
injunctive relief.
• The Chancery Court’s Order specifically stated that it was a consolidated
hearing on the merits under Rule 65.04(7) and that no further proof would be
presented on the issues.
• Defendant did not ever pursue a motion to revisit or set aside that Order.
• Defendant did not ever pursue an interlocutory appeal from that Order.
Therefore, as set forth in the audio recording of the June 10, 2019
proceedings, this Court rejected Defendant’s objection to Chancellor
Laurence M. McMillan Jr.’s invocation of Tenn. R. Civ. P. 65.04(7).

***

Nicolas Moody’s employment with TGS ended in March of 2018. At
the trial of this matter, Plaintiff entered into evidence, without objection,
three (3) sets of Requests for Admissions that were unanswered by Mr.
Moody during the course of this litigation. (Exhibits 22 — 24). The first set
of requests establishes 58 addresses located within 50 miles of TGS’s
Clarksville location — 836 Cumberland Drive, Clarksville, Tennessee
37040. The requests further establish that Mr. Moody performed garage door
services on behalf of himself or someone other than Plaintiff at each of the
addresses following his departure from TGS. Defendant never responded to
these requests and did not object to their entry into evidence at trial.
Defendant did not present any evidence or testimony that he did not perform
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 garage door services at the locations set forth in the First Request for
Admissions.
The Second Request for Admissions to Defendant establishes that
Plaintiff incurred legal expenses as a consequence of enforcing its rights
under the parties’ Agreement. The requests further set forth that the amount,
$31,949.75, is reasonable. Defendant never responded to these requests and
did not object to their entry into evidence at trial. Defendant did not present
any evidence or testimony that the Plaintiff did not incur the expenses set
forth in the Second Request for Admissions.
Finally, in the Third Requests for Admissions to Defendant, Plaintiff
establishes 47 additional addresses located within 50 miles of TGS’s
Clarksville location — 836 Cumberland Drive, Clarksville, Tennessee
37040. The requests further establish that Mr. Moody performed garage door
services on behalf of himself or someone other than Plaintiff at each of the
addresses following his departure from TGS. Defendant never responded to
these requests and did not object to their entry into evidence at trial.
Defendant did not present any evidence or testimony that he did not perform
garage door services at the locations set forth in the Third Request for
Admissions. The requests also established an additional $29,582.45 in
expenses incurred through January 31, 2019 as actually incurred by Plaintiff
and as reasonable.

***

Plaintiff seeks $65,000.00 in attorney’s fees under Section 5 of the
Agreement which provides, “[i]n any legal proceeding in which the
Company obtains injunctive or other equitable relief or damages against
Employee arising out of his/her violation of this Agreement, Company shall
be entitled to recover from Employee its reasonable attorneys fees and costs
to the extent approved by the court.” (Ex. 33). The Court finds that Plaintiff
is entitled to recover its attorney’s fees in the amount of $65,000.00, which
this Court expressly approves.

(Footnotes omitted). In addition to $65,000 in attorney’s fees, the Trial Court awarded
TGS $18,900 for the services Moody performed in violation of the Agreement as
established by invoices. The Trial Court also held that Moody was in civil contempt, but
declined to award TGS any additional damages on that basis. The Trial Court declined to
extend the injunction, as well.

In its order regarding criminal contempt, the Trial Court found that Moody was
guilty beyond a reasonable doubt of six counts of violating the Trial Court’s May 2018
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injunction order. Moody was found not guilty on one charge. Moody was sentenced to 60
days in jail (48 days suspended) and fined $300. In July 2019, the Trial Court entered a
money judgment for TGS against Moody in the amount of $83,900. Moody timely
appealed to this Court.

Discussion

Although not stated exactly as such, Moody raises the following issues on appeal:
1) whether the Trial Court failed to provide Moody adequate notice under Tenn. R. Civ. P.
65.04(7) that the hearing held 35 days after TGS’s petition was filed would be considered
a final hearing on the merits; 2) whether Moody was prevented from showing that the
Agreement was invalid; 3) whether the Trial Court erred in taking judicial notice of
distances using Google Maps; and, 4) whether the Trial Court wrongly applied the
preponderance of the evidence standard, rather than the beyond a reasonable doubt
standard, in determining whether Moody was in criminal contempt. TGS raises its own
distinct issues on appeal, which we restate and consolidate as follows: 1) whether Moody’s
appeal should be dismissed because his brief does not appropriately cite to the record; 2)
whether the Trial Court’s invocation of Tenn. R. Civ. P. 65.04(7) could excuse Moody
from complying with the Trial Court’s injunction; and, 3) whether the Trial Court erred in
entering the injunction when Moody never argued that TGS did not have a protectable
business interest to support the parties’ restrictive covenants agreement. TGS also attempts
to raise an issue of whether, pursuant to the Agreement, it should be awarded its attorney’s
fees incurred on appeal.

Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.
2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). This appeal includes issues of criminal contempt. In
Moody v. Hutchison, we set out the burden of proof and standard of review regarding
findings of criminal contempt as follows:

The first issue we will address is Defendant’s claim that Plaintiff
failed to prove he was guilty of criminal contempt beyond a reasonable
doubt. As this Court recently observed in Barber v. Chapman, No. M2003-
00378-COA-R3-CV, 2004 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 23,
2004), no appl. perm appeal filed:

In a criminal contempt case, the guilt of the accused
must be established beyond a reasonable doubt. Black v.
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 Blount, 938 S.W.2d 394 at 398 (Tenn. 1996) (citing Robinson
v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d
908, 912 (Tenn. 1964)). However, on appeal, individuals
convicted of criminal contempt lose their presumption of
innocence and must overcome the presumption of guilt.
“Appellate courts do not review the evidence in a light
favorable to the accused and will reverse criminal contempt
convictions only when the evidence is insufficient to support
the trier-of-fact’s finding of contempt beyond a reasonable
doubt.” Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.
App. 1993) (citing Tenn. R. App. P. 13(e)). Furthermore,
appellate courts review a trial court’s decision of whether to
impose contempt sanctions using the more relaxed abuse of
discretion standard of review. Hawk v. Hawk, 855 S.W.2d 573,
583 (Tenn. 1993).

Barber, 2004 WL 343799, at *2, 2004 Tenn. App. LEXIS 111, at *8. Accord,
Freeman v. Freeman, 147 S.W.3d 234, 242 (Tenn. Ct. App. 2003), appl.
perm. appeal denied March 22, 2004 (“Appellate Courts review a trial
court’s decision to impose contempt sanctions using the more relaxed ‘abuse
of discretion’ standard of review. The court of appeals has ‘appellate
jurisdiction over civil or criminal contempt arising out of a civil matter.’ See
T.C.A. § 16-4-108(b)”).

Moody v. Hutchison, 159 S.W.3d 15, 25-26 (Tenn. Ct. App. 2004).

With these standards in mind, we first address whether Moody’s appeal should be
dismissed because his brief does not appropriately cite to the record. TGS asserts that
“[a]lthough portions of Moody’s Appellant Brief cite to the record, his brief is replete with
assertions to which he does not do so as required.” TGS cites to Tenn. R. App. P. 27(g)
and Tenn. Ct. App. R. 6(b) in support of its argument. We agree with TGS that Moody’s
brief is not a model for record citation. It contains several unsupported assertions.
However, Moody’s brief is not so deficient throughout as to justify the heavy penalty of
dismissal. Therefore, we decline TGS’s request to dismiss Moody’s appeal. However, we
warn litigants that failure to consistently cite to the record as required risks waiver of one’s
issues on appeal.

We move now to Moody’s issues, beginning with whether the Trial Court failed to
provide Moody adequate notice under Tenn. R. Civ. P. 65.04(7) that the hearing held 35
days after TGS’s petition was filed would be considered a final hearing on the merits.
Moody points to, among other things, the affidavit in the record of Sheri S. Phillips
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(“Phillips”), the attorney who originally represented him in this matter and who was present
at the April 27, 2018 hearing, wherein Phillips states that “[t]he Court, without Notice,
pursuant to Rule 65.04 (7) advanced the hearing to a final hearing at the conclusion of the
hearing.” Moody argues that, owing to this lack of adequate notice, he was prevented from
preparing effectively for trial on the merits.

The Tennessee Rules of Civil Procedure provide for the consolidation of trial on the
merits along with a hearing on a preliminary injunction. Tenn. R. Civ. P. 65.04(7) states:

CONSOLIDATION OF HEARING WITH TRIAL ON MERITS. Before or after the
commencement of the hearing of an application for a preliminary injunction,
the Court may order the trial of the action on the merits to be advanced and
consolidated with the hearing of the application. Even when this
consolidation is not ordered, any evidence received upon an application for
a preliminary injunction which would be admissible upon the trial on the
merits becomes part of the record on the trial and need not be repeated upon
the trial. This subdivision [65.04(7)] shall be so construed and applied as to
save to the parties any rights they may have to trial by a jury.

Tenn. R. Civ. P. 65.04(7). Our Supreme Court analyzed the notice requirements of Rule
65.04(7) in Clinton Books, Inc. v. City of Memphis, 197 S.W.3d 749 (Tenn. 2006). The
Clinton Books court reviewed law on the rule’s federal equivalent, including the
proposition that “before a trial court may issue an order of consolidation the court must
provide the parties with ‘clear and unambiguous notice ... either before the hearing
commences or at a time which will still afford the parties a full opportunity to present their
respective cases.’” Id. at 755 (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395,
101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). Our Supreme Court continued:

Similar to those courts construing the federal rule, we conclude that a court
must provide the parties with notice before issuing an order of consolidation
in accordance with Rule 65.04(7) of the Tennessee Rules of Civil Procedure.

The trial court in the present case did not order consolidation or
provide notice to the parties of its intent to consolidate the hearings.
Throughout the hearing, the parties emphasized that the hearing involved
only the temporary injunction and that they wished to address the request for
a declaratory judgment at a later date. The parties were not advised that the
trial court had consolidated the hearings until the trial court issued its order
finding that the statute met Tennessee constitutional standards. The trial
court, therefore, failed to comply with Rule 65.04(7) of the Tennessee Rules

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 of Civil Procedure….We remand the case to the trial court for a hearing on
the merits with regard to the declaratory judgment action.

Clinton Books, 197 S.W.3d at 755-56. In 2013, this Court stated that “the success of an
appeal of a court’s decision to consolidate an injunction motion hearing with a trial on the
merits rests upon the adequacy and timing of the notice provided to the parties.” Babb v.
Cross, No. E2012-01327-COA-R3-CV, 2013 WL 621974, at *4 (Tenn. Ct. App. Feb. 20,
2013), no appl. perm. appeal filed. According to Moody, his notice of consolidation was
inadequate to non-existent.

In response, TGS denies that the Trial Court invoked Rule 65.04(7) only at the end
of the April 27, 2018 hearing. TGS points to the declaration in the record of its attorney,
David L. Johnson (“Johnson”), wherein Johnson stated that the announcement of
consolidation came at the “outset” of the hearing:

1. I have served as legal counsel for the Plaintiff in this case since its
outset.
2. At the outset of the April 27, 2018 injunction hearing (and before I
requested that the Court utilize its audio recording system), Chancellor
McMillan announced, sua sponte, that he intended to invoke the rule set forth
Tenn. R. Civ. P. 65 that would make the matter a final hearing on the merits
such that evidence presented during the hearing would not be repeated.
3. Immediately after Chancellor McMillan made this statement, I
considered objecting on behalf of the Plaintiff but elected not to do so. At
no time did Attorney Sheri Phillips object on behalf of Defendant. Nor did
either party request that the hearing be delayed after Chancellor McMillan
made this statement.

Thus, the record contains contradictory sworn accounts from the parties’ counsel of
when exactly the Trial Court first invoked Rule 65.04(7). In Johnson’s account, Chancellor
McMillan announced his intention at the outset. Phillips, Moody’s previous lawyer, stated
that the announcement came without notice at the end of the hearing. Unfortunately, these
contrasting accounts do not assist us in determining when Moody received notice of
consolidation. Rather than resolve the issue, these statements serve, in effect, to cancel
one another. The transcript of the April 27, 2018 hearing shows no announcement of
consolidation by the Trial Court at the hearing’s outset.

TGS nevertheless argues that even if the Trial Court first invoked Rule 65.04(7) at
the end of the hearing, the rule allows for notice to come after commencement of the
hearing, and the Trial Court’s invocation of the rule at hearing’s end was sufficient. TGS
argues further that Moody failed to timely object to the invocation of Rule 65.04(7), only
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raising the issue months later after he retained new counsel. TGS points out that Moody
was on notice of the Trial Court’s intention to consolidate on April 27, 2018. TGS asserts
that if Moody was opposed to consolidation, he should have sought to alter the Trial
Court’s decision on consolidation between the hearing and the May 21, 2018 entry of the
injunction order.

TGS is correct in that, under Rule 65.04(7), a hearing may be consolidated “[b]efore
or after the commencement of the hearing of an application for a preliminary injunction….”
However, we note the proposition quoted in Clinton Books that notice, if not provided
before the hearing commences, must come “at a time which will still afford the parties a
full opportunity to present their respective cases.” Id. at 755 (quoting Univ. of Texas, 451
U.S. 390, 395, 101 S.Ct. 1830). We do not believe that “after the commencement” extends
to after the conclusion of a hearing, when the witnesses are done testifying and the parties
are giving their closing arguments. Based on the record before us, the Trial Court declared
sua sponte at hearing’s end that it intended to consolidate the injunction hearing with a trial
on the merits even though the evidentiary portion of the hearing was over. In our judgment,
that notice was too late to afford Moody a full opportunity to make his case.

TGS contends that Moody should have objected at the time or moved to prevent
consolidation before entry of the May 2018 injunction order, which was a non-final order
subject to change. However, Moody did later attempt to amend his answer to include
additional affirmative defenses only to be denied. Based on this record, Moody never had
a meaningful opportunity to prepare for trial on the merits in this matter, including the
opportunity to conduct discovery or assert applicable affirmative defenses.

Notice provided after the fact is not notice. It is a pronouncement. We conclude
that the Trial Court’s pronouncement at the end of the April 27, 2018 hearing that it was
invoking Rule 65.04(7) did not qualify as adequate notice, if it can be deemed notice at all,
of consolidation of trial on the merits. We vacate the Trial Court’s judgment as it pertains
to Moody’s alleged violation of the Agreement and remand for further proceedings
consistent with this Opinion.2

Moody’s remaining two issues relate to his being found guilty of criminal contempt,
beginning with whether the Trial Court erred in taking judicial notice of distances using
Google Maps. “A judicially noticed fact must be one not subject to reasonable dispute, in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot

2
Our holding as to Moody’s first issue pretermits discussion of his issue (2) and TGS’s restated issue (3).
As Moody lacked adequate notice of advancement and consolidation of trial, it is little wonder he complains
of having not had the meaningful opportunity to prepare for and assert several defenses to the Agreement,
such as lack of protectable interest. He may do this in the remanded proceedings below.
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reasonably be questioned.” Tenn. R. Evid. 201(b). It is within a trial court’s discretion to
take judicial notice of these facts. Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App.
2005). Appellate courts ordinarily permit discretionary decisions to stand when reasonable
judicial minds can differ concerning their soundness. Overstreet v. Shoney’s, Inc., 4
S.W.3d 694, 709 (Tenn. Ct. App. 1999). A trial court’s discretionary decision must take
into account applicable law and be consistent with the facts before the court. Id.

Moody argues that Google Maps is subject to reasonable dispute and thus is not
amenable to judicial notice. Moody likens Google Maps to expert testimony, except with
no expert witness testifying. Moody states: “[T]he counsel for the Appellee[ ] did nothing
at trial to establish the accuracy of Google Maps, the manner by which Google maps
operated, or the basis to question, the manner by which Google Maps presents information.
As [a] result, no ability to cross-examine the evidence presented was afforded the
Appellant.” Moody states further that the proceeding on criminal contempt was, at least in
part, a “criminal case,” with the implication that the Trial Court’s alleged error was even
more consequential.

Criminal contempt proceedings are not the same as criminal prosecutions. Rather,
“[c]ontempt proceedings are sui generis—neither a civil action nor a criminal prosecution
as ordinarily understood, nor a criminal prosecution within the Sixth Amendment of the
United States Constitution.” Daly v. Daly, No. W2017-02549-COA-R3-CV, 2020 WL
2731239, at *5 (Tenn. Ct. App. May 26, 2020), rule 11 perm. app. denied Oct. 12, 2020
(quoting Bowdon v. Bowdon, 278 S.W.2d 670, 672 (Tenn. 1955)). They occupy a category
of their own. However, even if we accept Moody’s characterization, our research shows
that courts in other jurisdictions have taken judicial notice of Google Maps in criminal
cases, at least to establish distance between two points. While Tennessee law is scant on
the question, we note an opinion by the Court of Appeals of Arkansas, Division III, in
which that court wrote of the increasingly widespread practice of courts taking judicial
notice of Google Maps to establish distance:

[I]n our view the law is far from settled on whether and how Google—or
any other internet-information source—can serve as a reservoir of
adjudicative facts. See Kenneth S. Broun et al., 2 McCormick on Evidence §
330 (8th ed.) (Jan. 2020 update) (“[N]owhere can there be found a definition
of what constitutes competent or authoritative sources for purposes of
verifying judicially noticed facts.”) (internal citations omitted). That said,
there seems to be an emerging consensus that courts can use Google Maps to
establish the distance between two geographic points. Here are some
examples:

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 • United States v. Burroughs, 810 F.3d 833, 835 (D.C. Cir. 2016) (Google
Maps was a source whose accuracy cannot reasonably be questioned for the
purpose of identifying the area where the defendant was arrested);
• McCormack v. Hiedeman, 694 F.3d 1004, 1008 n. 1 (9th Cir. 2012) (taking
judicial notice of Google Maps to determine the distance from an Idaho
location to a Utah location);
• United States v. Perea-Rey, 680 F.3d 1179, 1182 & n. 1 (9th Cir. 2012)
(taking judicial notice for the purpose of determining the general location of
a home and that the distance between it and the border was approximately
one mile “as the crow flies,” relying on a Google map and satellite image as
a “source[ ] whose accuracy cannot reasonably be questioned”);
• United States v. Proch, 637 F.3d 1262, 1266 n. 1 (11th Cir. 2011) (taking
judicial notice of a map);
• Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1219
n. 2 (10th Cir. 2007) (taking judicial notice of distance calculated using
Google Maps).

Reed v. State, 2020 Ark. App. 49, at 6-7, 595 S.W.3d 391, 394-95. However, the Arkansas
Court declined to hold that the trial court in that case abused its discretion in rejecting the
defendant’s proffered jury instruction based upon Google Maps evidence purporting to
establish drive time rather than distance. Id. at 7-8, 595 S.W.3d at 395-96.

In one law review article, the authors went so far as to describe Google Maps as a
website “so well known and enjoy[ing] such broad use that it may have achieved a status
akin to Webster’s Dictionary, permitting judicial notice of the accuracy of the site itself.”
Jeffrey Bellin & Andrew Guthrie Ferguson, Trial By Google: Judicial Notice in the
Information Age, 108 Nw. U. L. Rev. 1137, 1176 (2014) (footnote omitted). The article,
examining a hypothetical application of Google Maps evidence, continued:

The first factor for consideration is Google Maps’ knowledge of the subject
matter. Here, it is clear that the authors of the information on Google Maps
have a comprehensive knowledge of local geography gleaned from official
maps and first-hand observation. In addition, the employees at Google Maps
are experts in applying a process of mapmaking designed with numerous
safeguards, including cars that patrol for errors, or what Google calls “ground
truthing” its maps. With respect to the second consideration, bias, there is
no plausible argument that Google Maps is biased in any relevant way in its
presentation of geography. As for incentive to be accurate, Google Maps has
a powerful financial incentive to ensure the accuracy of its maps and
possesses the resources necessary to act on that incentive. If Google Maps

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 is consistently inaccurate, people will not use the site, and Google will suffer
reputational harm and financial loss.

Given this analysis, and in the absence of counterarguments that the
online map is unreliable in this instance, the court should take judicial notice
under Rule 201. Because this is a criminal case, the jury will be instructed
that it “may or may not accept the noticed fact as conclusive,” leaving wiggle
room for the defense counsel to argue any flaws in the prosecution’s low-
effort, although highly convincing, method of proof. As noted supra, a judge
in the common law era, familiar with the geography of the case, may very
well have taken judicial notice of this same fact, but without Google Maps.
Technology, and the tireless efforts of Google’s employees, makes the
process more sophisticated, more accurate, and more transparent[.]

Id. at 1176-77 (footnotes omitted).

We find these points persuasive. Moody fails to identify precisely how Google
Maps is subject to reasonable dispute as to determining distance between two points.
Google Maps reflects the efforts by Google employees to provide an accurate
representation of geography. The company’s business incentive to produce accurate maps
is obvious. Furthermore, it is not as though Google Maps is a dubious new novelty. Google
Maps has been relied upon by courts across jurisdictions for a number of years now, to say
nothing of the general population. We see no reason why Tennessee should scorn the
emerging consensus on the amenability of Google Maps to judicial notice, at least for the
purpose of establishing distance between two points. We find no abuse of discretion in the
Trial Court’s decision to take judicial notice of distances using Google Maps.3

The final issue of Moody’s that we address is whether the Trial Court wrongly
applied the preponderance of the evidence standard rather than the beyond a reasonable
doubt standard in determining whether Moody was to be held in criminal contempt. This
is a puzzling issue since the Trial Court found explicitly that TGS had proven “beyond a
reasonable doubt” that Moody was guilty of willfully violating the May 2018 injunction
order six times. Moody points to nothing in the record showing that the Trial Court
misapprehended the applicable burden of proof. Moody is entitled to no relief on this issue.

On a related matter, TGS raises the issue of whether the Trial Court’s invocation of
Tenn. R. Civ. P. 65.04(7) could excuse Moody from complying with the Trial Court’s
injunction order. In short, the answer is no. In Nashville Corporation v. United
3
We emphasize that our ruling is restricted to taking judicial notice of Google Maps for determining
distance between two points. We do not rule on any other potential evidentiary applications of Google
Maps as they are not before us.
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Steelworkers of America, CIO, 215 S.W.2d 818 (Tenn. 1948), our Supreme Court observed
that the power to punish for contempt was “one of the highest prerogatives of a court of
justice.” Id. at 821. The Court went on to state that the party upon whom an order or
command of the court operates “is not allowed to speculate upon the equity of the bill, or
the legality or regularity of the order or decree, or of the writ issued thereon; but his simple
duty is to obey; and when he disobeys it is a duty the court owes to itself and to the public
to punish him at once.” Id. (citations omitted). In State v. Jones, 726 S.W.2d 515 (Tenn.
1987), our Supreme Court reaffirmed the principle that with proper jurisdiction, “even
though the trial judge’s order is erroneous and is reversed on appeal, an adjudication of
contempt for failure to obey that order will be sustained.” Id. at 517.

We have determined that the Trial Court erred by invoking Tenn. R. Civ. P. 65.04(7)
without providing adequate notice and vacated that aspect of its judgment accordingly.
However, that does not excuse Moody’s conduct. While Moody contends that the
injunction order was “void” for lack of notice, he cites no authority in support of that
contention. Moody only lacked notice that the Trial Court was going to invoke Rule
65.04(7) and consolidate the hearing. Moody did not lack notice of the hearing itself, nor
does he attack the Trial Court’s jurisdiction. The Trial Court’s May 2018 injunction order
was a valid, lawful order even though vacated on appeal. Until the Trial Court modified
or set aside its order, or a higher court reversed or vacated the Trial Court’s judgment,
Moody was required to obey the Trial Court’s order. He did not. Discerning no reversible
error, we affirm the Trial Court in its finding Moody guilty of criminal contempt.

As a final matter, TGS attempts to raise an issue of whether, pursuant to the
Agreement, it should be awarded its attorney’s fees incurred on appeal. We say “attempt”
because, while TGS devotes a section in the body of its brief to this argument, it does not
identify it as a separate issue in its statement of the issues. “Courts have consistently held
that issues must be included in the Statement of Issues Presented for Review required by
Tennessee Rules of Appellate Procedure 27(a)(4). An issue not included is not properly
before the Court of Appeals.” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001).
This would-be issue is waived. We also note our vacating the Trial Court’s judgment on
all matters, except the finding of criminal contempt, stemming from Moody’s alleged
violation of the Agreement.

In sum, we find and hold that the Trial Court erred by invoking Tenn. R. Civ. P.
65.04(7) without providing adequate notice. We vacate the Trial Court’s judgment on all
matters pertaining to Moody’s alleged violation of the Agreement, including the money
judgment for $83,900. We remand for a new trial on the merits. However, we affirm the
Trial Court in its finding Moody guilty on six counts of criminal contempt. We thus affirm,
in part, and vacate, in part, the Trial Court’s judgment, and remand for additional
proceedings consistent with this Opinion.
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 Conclusion

The judgment of the Trial Court is affirmed, in part, and vacated, in part, and this
cause is remanded to the Trial Court for further proceedings consistent with this Opinion
and for collection of the costs below. The costs on appeal are assessed one-half against the
Appellant, Nicholas C. Moody, and his surety, if any, and one-half against the Appellee,
The Total Garage Door, LLC.

______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE

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