Peck v. Tanner

• Decision Date: 24 June 2005
• Citation: 181 S.W.3d 262
• Parties: Jerry W. PECK v. William B. TANNER and Tanner-Peck, LLC.
• Court: Tennessee Supreme Court

Page 262

181 S.W.3d 262

Jerry W. PECK v. William B. TANNER and Tanner-Peck, LLC.

Supreme Court of Tennessee, at Jackson.

April 5, 2005 Session.

June 24, 2005.

Extraordinary appeal by permission from the Court of Appeals, Western Division, Chancery Court for Shelby County, No. 108579-2; Floyd Peete, Jr., Chancellor.¹

William Ernest Norcross, Robert D. Flynn, and Minton P. Mayer, Memphis, Tennessee, for the Appellants, William B. Tanner and Tanner-Peck LLC.

Mimi Phillips and Roy H. Chockley, Jr., Memphis, Tennessee, for the Appellee, Jerry W. Peck.

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

OPINION

This civil action pertains to an alleged business partnership between the individual parties. The trial court entered a judgment in favor of the defendants, and the plaintiff appealed. While the appeal was pending, the plaintiff filed a motion in the Court of Appeals alleging misconduct by the chancellor during the trial proceedings and requesting that the intermediate court "investigate and rule on whether and how [the plaintiff's] allegations will affect the appeal of this matter." The Court of Appeals granted the motion and remanded the case to the trial court, providing in its order that the trial court would supervise the taking of discovery and that the additional evidence then would be transmitted to the intermediate court and the case would be set for oral argument. We hold that the procedure adopted by the Court of Appeals exceeded its appellate jurisdiction; the proper remedy would have been for the plaintiff to file a motion asking the intermediate court to remand the case to the trial court for the filing and adjudication of a motion pursuant to Tennessee Rule of Civil Procedure 60.

Summary of Facts & Proceedings Below

The complaint alleged breach of a partnership agreement and fraud and sought an accounting and damages.² The plaintiff, Jerry W. Peck, asserted that he and the defendant, William B. Tanner, entered into a partnership to operate a billboard business (Tanner-Peck LLC). When Tanner later sold the business for approximately seventy-three million dollars, Peck filed the pending lawsuit, seeking his alleged partnership share in the proceeds of the sale. Following a lengthy non-jury trial, the trial court entered a judgment for the defendants. In summary, the trial court found that Tanner and Peck had entered into a written, limited partnership agreement pertaining only to sixty-two billboards that Peck had previously transferred to Tanner as part of the formation of the limited partnership. The court found that the limited partnership formed by Peck and Tanner was limited to those sixty-two billboards and did not extend to the entire business that Tanner subsequently sold; the trial court therefore found that Peck, who had received the money to which he was entitled for the sale of the sixty-two billboards, was not entitled to a share of the total proceeds of the sale. Accordingly, the trial court entered a judgment in favor of the defendants. The trial court also ordered Peck to pay the defendants approximately $720,000 in attorneys' fees and discretionary costs.

Peck filed a timely notice of appeal from the trial court's judgment and also filed a second notice of appeal pertaining to the post-trial order awarding attorneys' fees and litigation expenses.³ After delays resulting from the filing of various motions in the Court of Appeals, the case was scheduled for oral argument on October 16, 2003.

On October 2, 2003, Peck filed a "Motion to Suspend the Rules Pursuant to T.R.A.P. 2 and 22(a)." In that motion, Peck stated that he had learned, subsequent to trial, that the chancellor allegedly had an undisclosed business relationship with Tanner⁴ and that Tanner allegedly had paid the expenses for a one-week vacation in Florida for the chancellor and his family during the time the case was pending in the trial court. Peck asked the Court of Appeals to remove the case from the docket for oral argument and to stay the appellate proceedings while the allegations concerning Tanner and the chancellor were investigated by law enforcement agencies. The defendants' counsel agreed to a suspension of the appeal. The Court of Appeals granted Peck's motion and suspended the appeal, pending further order of the court. The parties jointly submitted an interim status report to the intermediate court on November 26, 2003, advising the court that the criminal investigation was continuing. By order entered on December 10, 2003, the court ordered the parties to submit another status report on or before February 2, 2004, "and [to] file any motions which will be appropriate for commencing the case proceedings."

On January 26, 2004, Peck filed a motion requesting the Court of Appeals to rule on the matters raised in the "Motion to Suspend the Rules" filed on October 2, 2003. The motion filed on January 26 stated that the criminal investigation was on-going, but that law enforcement officials had indicated that the investigation would not be compromised "by this Court's inquiring into the question of whether some judicial impropriety occurred which would affect the judgment on appeal and dictate the relief to be granted here [in the Court of Appeals]." The motion stated that "in view of the uncertain timeframe [sic] attending the criminal investigation, and in view of the fundamentally different area of inquiry facing this Court, fairness requires that this Court now investigate and rule on whether and how Appellant's allegations will affect the appeal of this matter." The motion went on to ask the Court of Appeals "to initiate an investigation or inquiry which will yield a supplemental Record on the matters alleged in Appellant's Motion filed October 3, 2003, and that said supplemental Record be considered in the disposition of this case pursuant to T.R.A.P. 36(a)." In requesting that relief, Peck suggested that the Court of Appeals appoint a "Special Master" to investigate the matter. The intermediate court took Peck's January 26 motion under advisement.

On April 1, 2004, the Court of Appeals entered an order effectively granting Peck's January 26 motion. The Court of Appeals found that it could not resolve the issues concerning the alleged improprieties by the chancellor because there were no facts in the evidentiary record concerning those allegations. The intermediate court stated that "the proper and just method of bringing this case to a conclusion is to remand the case to the trial court for the limited purpose of allowing the parties to conduct discovery proceedings under the direction of the trial court concerning the subsequently relied upon facts."⁵ The court's order concluded by stating, in pertinent part:

IT IS, THEREFORE, ORDERED that this case be and the same is hereby remanded to the trial court for the purpose of allowing the discovery proceedings referred to under the supervision of the trial court. Upon completion of the discovery proceedings, such depositions or other material shall be made a supplement to the record on appeal and duly filed with the Clerk of this Court and at such time this case will be set for oral argument.

Following entry of the Court of Appeals' order on April 1, 2004, Tanner and Tanner-Peck, LLC, filed an application for an extraordinary appeal to the Supreme Court pursuant to Tennessee Rule of Appellate Procedure 10. They argue, in summary, that the Court of Appeals' order exceeded that court's appellate jurisdiction. The applicants asserted that the procedure adopted by the Court of Appeals in the April 1 order was an exercise of original jurisdiction, under which the intermediate court ultimately would determine the facts concerning the alleged misconduct of the chancellor. We granted the application for an extraordinary appeal to review the procedure adopted by the Court of Appeals. For the reasons discussed below, we conclude that the procedure adopted by the Court of Appeals exceeds that court's appellate jurisdiction. Accordingly, we vacate the intermediate court's order filed on April 1, 2004, and remand the case to the Court of Appeals for resumption of the appeal as of right.

Standard of Review

Following the granting of an application for an interlocutory or extraordinary appeal, the standard of review is the same standard that would have been applied to the issue(s) in an appeal as of right. State v. Moore, 775 S.W.2d 372, 374 (Tenn.Crim.App.1989). The issue before us concerning the scope of appellate jurisdiction is a question of law; as a result, our review is de novo without a presumption of correctness. See State v. Cawood, 134 S.W.3d 159, 163 (Tenn.2004); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).

Analysis

We begin our analysis by considering the statute establishing the jurisdiction of the Court of Appeals. As provided in Tennessee Code Annotated section 16-4-108(a)(1) (1994): "The jurisdiction of the court of appeals is appellate only, and extends to all civil cases except workers' compensation cases and appeals pursuant to § 37-10-304(g)." The meaning of the statute is plain — the intermediate court's jurisdiction is "appellate only."

We turn next to cases applying either section 16-4-108(a)(1) or Article VI, section 2 of the Tennessee Constitution (providing that "[t]he jurisdiction of this [the Supreme] Court is appellate only . . ."). In a number of cases involving the scope of appellate jurisdiction, this Court and the Court of Appeals have consistently held that the appellate courts cannot exercise original jurisdiction and that their jurisdiction is "appellate only." See, e.g., Duncan v. Duncan, 672 S.W.2d 765, 767 (Tenn.1984); Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn.1976); Clement v. Nichols, 186 Tenn. 235, 209 S.W.2d 23 (1948); Fine v. Lawless, 140 Tenn. 453, 205 S.W. 124...