HOLLY M. KIRBY, Judge.
This case involves the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiff sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiff filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). The plaintiff did not file any further bond at that time. The plaintiff's uninsured motorist insurance carrier filed a motion to dismiss, asserting that the Circuit Court lacked subject-matter jurisdiction over the case because the plaintiff had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The trial court granted the motion to dismiss on that basis. The plaintiff now appeals. We reverse the Circuit Court's dismissal of the appeal from General Sessions Court in light of our recent decision in
The facts relevant to the issue in this appeal are undisputed. On December 17, 2008, Plaintiff/Appellant Jimmy Andrews, Jr. ("Plaintiff Andrews"), and Defendant Deborah Clemmer ("Defendant Clemmer") were involved in an automobile accident. In the accident, Defendant Clemmer allegedly rear-ended Plaintiff Andrews' automobile while Plaintiff Andrews was stopped at a stop sign.
On August 21, 2009, Plaintiff Andrews filed a civil warrant in the General Sessions Court of Shelby County, Tennessee, against Defendant Clemmer seeking compensatory damages arising out of the accident. On November 10, 2009, an alias summons was issued to Plaintiff Andrews' uninsured motorist carrier, State Farm Mutual Automobile Insurance Company ("State Farm"), notifying it of the lawsuit.
On July 9, 2010, Plaintiff Andrews filed a notice of appeal from the General Sessions Court judgment to Circuit Court for a trial de novo pursuant to Tennessee Code Annotated § 27-5-108.
Over a year later, on September 12, 2011, State Farm filed a motion to dismiss the case for lack of subject-matter jurisdiction. In the motion, State Farm contended that Plaintiff Andrews did not satisfy the requirement to file an appeal bond within ten days of the General Sessions Court judgment, pursuant to Tennessee Code Annotated § 27-5-103.
Tenn. Code Ann. § 27-5-103 (2000). Because Plaintiff Andrews merely paid the standard court cost under Section 8-21-401(b)(1)(C)(i). and did not also file a surety bond to secure the "costs of the appeal," State Farm argued, the Circuit Court lacked jurisdiction over the appeal.
On December 5, 2011, Plaintiff Andrews filed a "Motion to Correct Judgment" pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. In that motion, Plaintiff Andrews sought the permission of the Circuit Court "to correct a mistake or excusable neglect" in his failure to file an appeal bond under Section 27-5-103. Plaintiff Andrews asserted in his motion that "it has been the policy of the General Sessions Court to permit [an] Appeal from the General Sessions Court to the Circuit Court for many years based on Notice of Appeal and payment of a certain amount of funds for costs that have been determined by the court clerk." In light of this, Plaintiff Andrews argued, the Circuit Court should permit him to correct his mistake regarding the appeal bond, to bring himself into compliance with Section 27-5-103.
On March 29, 2012, the Circuit Court conducted a hearing on State Farm's motion to dismiss. At the conclusion of the hearing, the Circuit Court granted State Farm's motion, citing
On appeal, Plaintiff Andrews argues that the Circuit Court erred in granting State Farm's motion to dismiss for lack of subject-matter jurisdiction based on his failure to file a surety bond pursuant to Section 27-5-103.
Subject-matter jurisdiction implicates a court's power to adjudicate a particular case or controversy.
Under Section 27-5-103, quoted in full above, a party who seeks to appeal from General Sessions Court to Circuit Court must do two things: (1) file a notice of appeal, and (2) either "give bond with good security . . . for the costs of the appeal" or, alternatively, file an affidavit of indigency.
This Court recently addressed the issue of whether the payment of $211.50 satisfies the requirement in Section 27-5-103 to "give bond with good security . . . for the costs of the appeal" to Circuit Court, in
On appeal, the
The instant case is procedurally indistinguishable from
The decision of the Circuit Court is reversed and the cause is remanded for further proceedings consistent with this opinion. Costs on appeal are taxed one-half to Appellee State Farm Mutual Insurance Company and one-half to Appellee Deborah L. Clemmer, for which execution may issue, if necessary.
ALAN E. HIGHERS, P.J., W.S., DISSENTING.
In reaching its conclusion that the plaintiff's payment of $211.50 satisfied the requirements of Tennessee Code Annotated section 27-5-103 for appealing a case from general sessions court to circuit court, the majority relies upon the recent case of Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013). Because I believe Bernatsky is based upon a flawed premise, I respectfully dissent.
The Bernatsky majority finds it appropriate to overrule two previous decisions of this Court, which squarely address the issue presented in Bernatksy, and in which the Supreme Court recently denied permission to appeal: Jacob v. Partee, No. W2012-00205-COA-R3-CV, 2012 WL 3249605 (Tenn. Ct. App. Aug. 10, 2012) perm. app. denied (Tenn. Dec. 12, 2012) and University Partners Development v. Bliss, No. M2008-00020-COA-R3-CV, 2009 WL 112571 (Tenn. Ct. App. W.S. Jan. 14, 2009) perm. app. denied (Tenn. Aug. 17, 2009). In both Jacob and University Partners, this Court held that an appellant who sought to appeal from general sessions court to circuit court could not satisfy the bond requirements of Tennessee Code Annotated section 27-5-103 by merely remitting payment of the initial filing fee. In both cases, this Court reasoned that payment of the initial filing fee did not constitute giving "bond with good security" for "the cost of the cause on appeal[,]" and therefore, that the circuit court never acquired jurisdiction over the attempted appeal.
Almost before the ink was dry on the Supreme Court's denial of permission to appeal in Jacob, however, a different panel of this Court, in an apparent effort to overcome perceived difficulties in securing a bond to cover circuit court costs, suddenly discovered ambiguities within section 27-5-103 which, in its opinion, necessitated consideration of copious amounts of legislative history. In fact, the Bernatksy majority suddenly located not one, but two, ambiguities within section 27-5-103.
Based upon these perceived ambiguities, the Bernatsky majority consulted the legislative history of the 1988 amendment to section 27-5-103. The majority noted that the amendment was a legislative response to the case of Maddock, Kenny & Associates, Inc. v. Management Assistance and Service, Inc., 1986 WL 8811 (Tenn. Ct. App. Aug. 14, 1986), in which this Court held that a defendant appealing to circuit court was required to post a bond in the amount of the judgment rendered against him in the general sessions court. The majority acknowledged that the legislative discussion centered on whether a bond to cover the general sessions judgment against an appealing defendant was statutorily required. However, the majority held tight to this Court's statement in Maddock that "[i]n the case of an appealing plaintiff, the appeal bond, `with good security,' must be in the minimum amount of $250 for costs[,]" and it insisted that the absence of legislative discussion regarding the plaintiff's appeal requirements necessarily indicated its conclusion that payment of the initial filing fee satisfied the requirements of 27-5-103. Beyond the absence of legislative discussion regarding the amount of a plaintiff's bond, the Bernatsky majority clung to the concern of at least some legislators that requiring a bond in the amount of the judgment would create a detriment to the "working poor" and, in effect, foreclose the class' ability to bring an appeal. The majority then presumed that requiring an appeal bond to cover all of the court costs on appeal—which, of course, would not include the amount of the general sessions judgment—would likewise deprive would-be appellants of their day in court.
Finally, in discussing section 27-5-103's alleged ambiguity, the Bernatsky majority focused upon cases which, in considering other issues, merely referenced the payment of a sum certain, and it again focused on legislative inaction in the face of these judicial references.
The majority then concluded—in light of the absence of legislative discussion requiring the payment of a sum certain, some legislators' concerns regarding the working poor's ability to secure a bond covering a judgment, and legislative inaction following judicial references to a sum certain—that the requirements of section 27-5-103 are satisfied by the payment of an amount certain "to be determined `as hereinafter provided[.]'"
Finally, in an effort to determine the amount of the requisite payment or bond, the majority consulted Tennessee Code Annotated section 8-21-401. Because sections 27-5-103 and 8-21-401 both "relate to . . . the commencement of an appeal from General Sessions court to Circuit court[,]" the Bernatsky majority concluded that "Section 8-21-401(b)(1)(C)(i) was intended by the legislature to dovetail with Section 27-5-103, to supply the amount of `the costs of the appeal' that are to be secured by the statutory appeal bond."
The Bernatsky majority stated that section 8-21-401 was intended to address both a lack of uniformity in court costs and monies lost in uncollected court costs. According to the majority, the legislative history of section 8-21-401 revealed its sponsor's intention that court costs be paid in advance, eliminating the need for a cost bond.
At the outset, I simply cannot agree with the conclusion that any portion of section 27-5-103 is ambiguous. This "ambiguity" issue was specifically raised and specifically rejected in the recent Jacob decision. Section 27-5-103 provides:
As aptly explained in Judge Stafford's concurrence in Bernatsky:
Moreover, I cannot agree with the Bernatsky Court's finding that the phrase "costs of the appeal" renders section 27-5-103 ambiguous. In finding such ambiguity, the Bernatsky Court focused upon subsection (a)'s "costs of the appeal" without looking to subsection (b) for further clarification of the phrase. Read together, subsections (a) and (b) require that an appellant give "[a]n appeal bond" "with good security" to "secure[] the cost of the cause on appeal." Thus, the statute does not simply require that some unspecified "costs" be secured; it specifically requires that those "costs" secure the "cost of the cause on appeal." It is elementary that a payment to commence an appeal—whether termed a "fee," a "cost," or a "bond"—does not provide security for the "cost of the cause"—the "cause," of course, being the appeal. Thus, the plain language of section 27-5-103 requires a litigant appealing from a judgment in the general sessions court to file a bond for all of the costs of the appeal. The plain language of the statute does not place a monetary limit on the appeal bond. Because the costs of the appeal are unknown at the time of commencing the appeal, the statute clearly requires a bond in an undetermined amount. Therefore, by its plain language, the statute requires a bond for all the costs of the litigation in order to successfully perfect an appeal from the general sessions court.
In the absence of ambiguities within section 27-5-103, its legislative history may not properly be considered.
As was acknowledged by the Bernatsky majority, the 1988 amendment to section 27-5-103 was a legislative response to a decision by this Court to require a bond for the amount of the judgment
Moreover, I find less-than-compelling the Bernatsky majority's reliance upon perceived legislative "acquiescence" in light of case law referencing payment of a sum certain. In City of Red Boiling Springs v. Whitley, 777 S.W.2d 706 (Tenn. Ct. App. 1989), cited by the Bernatsky majority, a city court defendant erroneously paid a $250.00 fee to the circuit court clerk—as opposed to the city court clerk—to appeal his case. On appeal, this Court held that filing the bond in the wrong court did not warrant dismissal; however, it found the appeal had not been perfected because the bond lacked a surety.
However, I find it curious that the majority would rely so heavily upon purported legislative acquiescence, while all but ignoring our Supreme Court's recent implicit affirmance of our holding in Jacob which addressed the exact issues raised in Bernatsky and now in the instant case.
Finally, I disagree with the Bernatsky majority's reliance upon Tennessee Code Annotated section 8-21-401. As previously stated, 27-5-103 unambiguously requires a bond covering all appeal costs. Therefore, it is unnecessary to consider section 8-21-401 to determine the sum sufficient to satisfy the requirements of section 27-5-103. In any event, I would note that section 8-21-401 is clear on its face; it explicitly declares that the "[i]f a party . . . pays costs at the time the services are requested, such payment shall be deemed to satisfy the requirement for security to be given for costs, pursuant to § 20-12-120." (emphasis added). Section 20-12-120 is not the cost bond requirement of Section 27-5-103. Applying the canon of construction "expressio unius est exclusio alterius," which holds that the expression of one thing implies the exclusion of others, the Court should infer that had the legislature intended for payment of section 8-21-401 costs to satisfy the requirements of section 27-5-103, it would have included specific language to that effect. See Rich v. Tenn. Bd. of Med. Exam., 350 S.W.3d 919, 927 (Tenn. 2011).
Moreover, without a finding of ambiguity within section 8-21-401, the Bernatsky Court clearly lacked the authority to consider the statute's legislative history. No matter what the bill sponsor or a representative of the Judicial Council—who is not a member of the General Assembly—may have said at the time of the statute's enactment, the legislature did not enact a statute in which payment of the sums contemplated in section 8-21-401 were deemed to satisfy the requirements of section 27-5-103(a). In holding this, the Bernatsky Court departed from the express language found in section 8-21-401.
Additionally, assuming that section 8-21-401's legislative history could be properly considered, the history does not fully support the Bernatksy Court's conclusions. According to the Court, the 2005 amendment to section 8-21-401 was conceived, in part, to address the problem of lost court costs revenue. In light of this purported mission, it is doubtful that the legislature would eliminate the appeal bond requirement, and simply allow upfront payment of the litigation commencement fee.
As expressed in Jacob, I believe that section 27-5-103 unambiguously requires an appeal bond which secures all costs incurred throughout the appeal, as opposed to payment of an initial appeal filing fee. Accordingly, I cannot subscribe to the conclusions reached in Bernatsky which underlie the result in the instant case. For these reasons, I respectfully dissent.
Tenn. Code Ann. § 8-21-401(b)(1)(C)(i) (2005).
