State v. Hurley, E2020-01674-COA-R10-CV

Decision Date22 June 2021
Docket NumberNo. E2020-01674-COA-R10-CV,E2020-01674-COA-R10-CV
CourtCourt of Appeals of Tennessee

Appeal from the Chancery Court for Loudon County

No. 12751

Frank V. Williams, III, Chancellor

We granted this extraordinary appeal to determine whether the trial court erred in denying the defendant's motion to dismiss for lack of subject matter jurisdiction. Because the trial court considered the proper statute, the relevant facts, and the arguments advanced by the parties, we conclude that the application for an extraordinary appeal was improvidently granted. We therefore dismiss this appeal.

Tenn. R. App. P. 10 Extraordinary Appeal; Appeal Dismissed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN, and CARMA DENNIS MCGEE, JJ., joined.

T. Scott Jones and Gena Lewis, Knoxville, Tennessee, for the appellant, Julia Hurley.

Russell Johnson, District Attorney General, and Jason S. Collver, Assistant Attorney General, for the appellee, State of Tennessee - Civil.


On March 26, 2020, the State of Tennessee ("Appellee"), on relation of the District Attorney General for the Ninth Judicial District of Tennessee, filed a petition of quo warranto in the Chancery Court for Loudon County (the "trial court") against Defendant/Appellant Julia C. Hurley, as Loudon County Commissioner for the 2nd Commission District ("Appellant"), on information of Henry Cullen, a Loudon County Commissioner. The petition alleged that Appellant was unlawfully holding office because she had moved out of her district. Following the prayer for relief was the following statement: "I, Henry Cullen, a citizen of Loudon County agree as Surety, to be held and firmly bound unto the Chancery Court Clerk of Loudon County, Tennessee for the payment of all costs awarded against the Petitioner." Mr. Cullen signed under a line designated "Surety."

On April 20, 2020, Appellant filed a motion to dismiss the complaint, arguing that Appellee failed to comply with Tennessee Code Annotated section 29-35-110, which provides as follows:

(a) The suit is also brought on the information of any person, upon such person giving security for the costs of the proceedings, to be approved by the clerk of the court in which the bill is filed.
(b) When the suit is brought at the relation of a private individual, it shall be so stated in the bill and proceedings, and such individual is responsible for costs in case they are not adjudged against the defendant.

Appellant asserted that Mr. Cullen failed to comply with the statute because he did not submit a proper surety bond, which necessitates the involvement of a third-party, citing Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911, at *1 (Tenn. Ct. App. Feb. 15, 2013), overruled on other grounds by Griffin v. Campbell Clinic

, P.A., 439 S.W.3d 899, 904 (Tenn. 2014) ("The surety bond . . . involves a third party: the surety." (citing State v. Thammavong, No. 97,278, 2008 WL 762507, *1 (Kan. Ct. App. Mar. 21, 2008)).1 And because the bond is mandatory and jurisdictional under the precedent set in Johnson v. Hopkins, 432 S.W.3d 840 (Tenn. 2013), Appellant argued that the suit was not validly commenced and should be dismissed.

On May 29, 2020, Appellee filed a response arguing that Mr. Cullen's signature was sufficient to comply with the statute, which did not expressly require the use of a bond to secure the judgment. Moreover, Appellee submitted that any failure to comply with the statute could be cured by amending the complaint to add additional security under Tennessee Code Annotated section 20-12-124, which provides as follows:

Any person required by law to give security for costs may, at any stage of the cause, be ruled to give such security, if it has not previously been done, or to justify or give new or additional security on sufficient cause shown.

Finally, Appellee argued that because both Bernatsky and Johnson involved appellate bonds, "there is no basis within the case[s] . . . to support [Appellant's] assertion thatsecurity for costs is a prerequisite to filing a lawsuit." See Johnson

, 432 S.W.3d at 848-49 (citing Tenn. Code Ann. § 29-18-130) (involving the "bond, with good and sufficient security" that must be posted by a tenant who appeals from a landlord-tenant action); Bernatsky, 2013 WL 593911, at *1 (citing Tenn. Code Ann. § 27-5-103) (involving the "bond with good security" required to appeal a general sessions court judgment to circuit court).

A hearing on the motion to dismiss occurred on July 23, 2020. The trial court eventually entered a written order denying the motion to dismiss on October 21, 2020. Therein, the trial court ruled that Appellant's motion to dismiss "was appropriate insomuch as the manner in which the petition was filed," but further ruled that "the [c]ourt is going to allow [Appellee] to provide such sufficient surety as deemed necessary by the Clerk and Master to satisfy the requirements therein rather than require a dismissal of the suit in question."

On November 4, 2020, Appellant filed a motion in the trial court for leave to file an interlocutory appeal of the trial court's denial of her motion to dismiss.2 Therein, Appellant cited the need to develop a uniform body of law and the need to prevent needless litigation as the bases for her request. Appellee responded in opposition to the motion on December 1, 2020. The trial court denied Appellant's motion without explanation by order of December 17, 2020.

On December 15, 2020, Appellant filed an application for extraordinary appeal of the trial court's order denying Appellant's motion to dismiss in this Court, under Rule 10 of the Tennessee Rules of Appellate Procedure. This Court granted the appeal on February 3, 2021, limited to the following issue: "Whether the Trial Court erred in denying the motion to dismiss and allowing Appellee 'to provide such sufficient surety as deemed necessary by the Clerk and Master to satisfy the requirements' of Tennessee Code Annotated section 29-35-110."


Because the trial court declined to dismiss this action, this appeal comes to us from a non-final judgment. Under the Tennessee Rules of Appellant Procedure, appeals from non-final judgments may be had by permission under either Rule 9 or 10. Under Rule 9, an aggrieved party must timely seek permission from both the trial court and the appellate court in order to prosecute such an appeal. See generally Tenn. R. App. P. 9. A Rule 9 appeal is appropriate when one or more of the following non-exclusive circumstances is present:

(1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment.

Tenn. R. App. P. 9(a).

A Rule 10 extraordinary appeal, however, requires only the consent of the appellate court, rather than approval of the trial court. But the circumstances in which a Rule 10 may be granted are far more circumscribed. As the Tennessee Supreme court explained, "[e]xtraordinary appeals are only appropriate '(1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in [the Rules of Appellate Procedure].'" Gilbert v. Wessels, 458 S.W.3d 895, 898 (Tenn. 2014) (quoting Tenn. R. App. P. 10(a)). According to the Advisory Commission Comment to Rule 10, "[t]he circumstances in which review is available . . . are very narrowly circumscribed to those situations in which the trial court or the intermediate appellate court has acted in an arbitrary fashion, or as may be necessary to permit complete appellate review on a later appeal." In other words, "[a]n appellate court should grant a Rule 10 extraordinary appeal only when the challenged ruling represents a fundamental illegality, fails to proceed according to the essential requirements of the law, is tantamount to the denial of a party's day in court, is without legal authority, is a plain and palpable abuse of discretion, or results in either party losing a right or interest that may never be recaptured." Id. (citing State v. McKim, 215 S.W.3d 781, 791 (Tenn. 2007) (noting that these are the same considerations applicable to the common law writ of certiorari)). Thus, compared to a Rule 10, a Rule 9 application may be granted "under far less egregious circumstances." Id. Indeed, appeals under Rule 10 "are reserved only for extraordinary departures from the accepted and usual course of judicial proceedings." Id. (citing Jones v. Vasu, 326 S.W.3d 577, 578 (Tenn. Ct. App. 2010)).

On this basis, the Tennessee Supreme Court has directed us to use caution in granting appeals under Rule 10:

It is important for appellate courts to exercise restraint in granting Rule 10 appeals. Under our Rules, the appellate courts have noauthority to unilaterally interrupt a trial court's orderly disposition of a case unless the alleged error rises to the level contemplated by the high standards of Rule 10. We note that parties who are unsuccessful in obtaining the trial court's permission for a Rule 9

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