JOHN GUNN ET AL. v. JEFFERSON COUNTY ECONOMIC DEVELOPMENT OVERSIGHT COMMITTEE, INC.
No. E2018-01345-COA-R3-CV
IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
March 25, 2019
Fеbruary 21, 2019 Session; Appeal from the Chancery Court for Jefferson County; No. 13-CV-212; Don R. Ash, Senior Judge
Because appellants’ notice of appeal was filed more than thirty days following the trial court‘s final, appealable judgment, we dismiss this appeal for lack of subject matter jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Appeal is Dismissed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Robert E. Cooper, Jr., and Christopher J. Climo, Nashville, Tennessee, for the appelleе, Jefferson County Economic Development Oversight Committee, Inc.
OPINION
I.
In 2013, Plaintiffs/Appellants John Gunn, Clarice Gunn, Jack Kenley, Charlotte Kenley, Steve Monroe, Carol Monroe, Charles Crosby, Steve Hammer, Bandi Hammer, Leroy Malone, Annette Loy and Peggy Corbett, citizens, residents, and property owners of Jefferson County, Tennessee (“Plaintiffs“) filed a complaint related to whether Defendant/Appellee Jefferson County Economic Development Oversight Committee, Inc. (“EDOC“) was subject to the Open Meetings Act and the Public Records Act. The complaint specifically stated that it was brought pursuant to those acts, as well as the Declaratory Judgment Act. The complaint further alleged that EDOC was not complying with the Open Meetings Act and had failed to produce documents pursuant to valid public record requests. Plaintiffs sought relief in the form of a declaration that the EDOC was subject to the Open Meetings Act and Public Records Act, an injunction preventing the EDOC from continuing to violate the acts, and attornеy‘s fees for past violations.
Eventually, a bench trial occurred in which the trial court ruled that the EDOC was not subject to the Open Meetings Act and the Public Records Act. This Court reversed on appeal and “remanded to the trial court for such further proceedings as may be necessary, consistent with this opinion.” Wood v. Jefferson Cty. Econ. Dev. Oversight Comm., Inc., No. E2016-01452-COA-R3-CV, 2017 WL 4277711, at *12 (Tenn. Ct. App. Seрt. 26, 2017), perm. app. denied (Tenn. Feb. 14, 2018).
Following the issuance of the mandate from this Court, Plaintiffs filed a motion for the entry of permanent injunction, an award of attorney‘s fees, and discretionary costs. The trial court entered an order on June 5, 2018, granting an order “in conformity with the Court of Appeals opinion and for costs, including discretionary costs.” The order, however, denied the request for an award of attorney‘s fees on several grounds. Finally, the order directed counsel for Plaintiffs to submit affidavits delineating discretionary costs. The affidavits were filed and the trial court entered an order awarding costs on July 16, 2018. A notice of appeal was filed on July 23, 2018.
II.
In this case, Plaintiffs appeal the trial court‘s dеnial of their claims under the Open Meetings Act and Public Records Act, particularly the trial court‘s refusal to issue an injunction and award attorney‘s fees. At oral argument in this case, this Court raised, sua sponte, the issue of whether it possessed subject matter jurisdiction to adjudicate Plaintiffs’ appeal under Rules 3 and 4 of the Tennessee Rules
In an appeal as of right to the Supreme Court, Court of Appeals or Court of Criminal Appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the appellate court within 30 days after the date of entry of the judgment appealed from; . . . .
The time for filing a notice of appeal may, however, be tolled by the timely filing of certain motions. See generally
Importantly, this Court‘s jurisdiction in appeals as of right extends only to final judgments.
Motions for discretionary costs, however, have been described as “ancillary” or “collateral” to the underlying matter by Tennessee courts. Roberts v. Roberts, No. E2009-02350-COA-R3-CV, 2010 WL 4865441, at *8 (Tenn. Ct. Aрp. Nov. 29, 2010) (citing Born Again Church & Christian Outreach Ministries, Inc. v. Myler Church Bldg. Sys. of the Midsouth, Inc., 266 S.W.3d 421, 425 (Tenn. Ct. App. 2007)) (“The motion for discretionary costs is treated as an ancillary or collateral matter.“); cf. First Am. Tr. Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 141 (Tenn. Ct. App. 2001) (“Of course, perfecting an appeal does not prevent the trial court from acting with regard to ancillary matters relating to the enforcement or collection of its judgment.“). As such, we have repeatedly held that a post-judgment motion for discretionary costs does not deprive this Court of jurisdiction to review an otherwise final judgment. See, e.g., Phelps v. Benke, No. M2015-02212-COA-R3-CV, 2017 WL 113965, at *10 (Tenn. Ct. App. Jan. 11, 2017) (“It is important to note, however, that the absence of an order on Mr. Benke‘s motion for discretionary costs does not defeat оur exercise of jurisdiction over this appeal. A final order does exist.“); Payne v. Tipton Cty., 448 S.W.3d 891, 898 (Tenn. Ct. App. 2014) (quoting Graybeal v. Sherrod, No. E2011-01825-COA-R3-CV, 2012 WL 4459807, at *9 (Tenn. Ct. App. Sept. 27, 2012)) (“A motion for discretionary costs filed after a final order does not ‘arrest the finality’ of the trial court‘s judgment.“); Roberts, 2010 WL 4865441, at *8. Thus, a post-trial motion for discretionary costs is not part of the “whole merits of the case” that must be adjudicated in order tо make a judgment final. Richardson, 913 S.W.2d at 460.
On the other side of the same coin, we have held where an order is entered that adjudicates every pending matter other than a post-judgment motion for discretionary costs, the time for appeal under Rule 4 runs from the entry of the final order, not the order addressing the motion for discretionary costs. See Goins v. Lawson, No. E2016-01406-COA-R3-CV, 2017 WL 2954686, at *2 (Tenn. Ct. App. July 11, 2017). In Goins, all of the plaintiff‘s claims were dismissed by order of May 9, 2016. Id. at *1. The defendant thereafter filed a motion for sanctions and discretionary costs. Id. The trial court denied the motion for sanctions and granted the motion for discretionary costs by order of June 20, 2016. Id. The plaintiff thereafter filed a notice of appeal on July 8, 2016. Id.
In order to determine whether the plaintiff‘s appeal of the dismissal of her case was timely, we were required to consider the date the final judgment was entered by the trial court. Id. We first noted that neither a motion for sanctions nor a motion for discretionary costs was among the motions which toll the time for taking an appeal under Rule 4(b). Id. at *2. As such, we concluded that the final judgment was entered when the trial court dismissed all the claims raised in the plaintiff‘s complaint. Id. The plaintiff‘s notice of appeal, filed more than thirty days following the May 9, 2016 final order, was therefore untimely and we were deprived of jurisdiction to consider the plaintiff‘s appeal. Id. As such, the plaintiff‘s appeal was dismissed. Id.
The case-at-bar, while similar to Goins, is not an exact analog to the facts presented in that case. Importantly, while the
In determining this issue, we first consider the rule governing discretionary costs,
This second scenario was at issue in this case. As previously discussed, the Court in Gunn I did not enter a final disposition of this case but expressly remanded to the trial court for further proceedings. Indeed, there can be no dispute that Plaintiffs’ substantivе requests for relief, including a request for a permanent injunction and attorney‘s fees, were still outstanding following remand. As such, Plaintiffs’ motion for discretionary costs filed prior to the trial court‘s ruling on attorney‘s fees and injunctive relief was premature.
We also find guidance from the Tennessee Supreme Court‘s decision in Evans v. Wilson, 776 S.W.2d 939 (Tenn. 1989). In Evans, the plaintiff filed several post-trial motions, including a motion for discretionary costs, a motion to alter or amend, and a motion for new trial. Id. at 940. The trial court entered an order denying the motion for discretionary costs and to alter or amend, but did not enter a final order on the issue of the new trial. Id. at 941–42 (stating that the order entered by the trial court on the motion for new trial was merely “provisional“). The plaintiff appealed and the Tennessee Supreme Court dismissed the appeal. In reaching this result, the court explained that “the disposition of the motions specified in Rule 4(b) could potentially affect the judgment entered by the trial court. So long as such a motion is pending, there is no final judgment for purposes of T.R.A.P. 3(a).” Id. at 942. The opposite is true in this case. Here, the motion that remained pending before the trial court was solely a motion for discretionary costs, which does not toll the time for taking an appeal pursuant to Rule 4(b). Moreover, the grant or denial of a motion for discretionary сosts has no potential to affect the underlying judgment; it merely concerns the award of costs to the prevailing party.
Finally, we note that the assessment of costs is generally not a bar to a final judgment. Nearly a century ago, the Tennessee Supreme Court opined that “[a] decree will be treated as final, and an appeal entertained only where there is
Applying this rule, we recently held that a judgment was final for рurposes of appeal notwithstanding that the trial court had yet to assess court costs. See Brooks v. Woody, 2018 WL 5879699, at *4. In reaching this result, we noted that the Tennessee Supreme Court had previously held that “when consecutive ‘final’ judgments are entered, a subsequent entry of judgment operates as the final judgment only if the subsequent judgment affects the parties’ substаntive rights or obligations settled by the first judgment.” Id. at *3 (quoting Ball v. McDowell, 288 S.W.3d 833, 838 (Tenn. 2009)). We also observed that, based on this law, we had previously held that an amended order adjudging costs was not the final order for purposes of triggering the time for filing an appeal where it “did not alter or address any of the substantive claims or rights of the parties[.]” Id. (quoting Hitachi Capital Am. Corp, 2016 WL 5210860, at *4). Applying this rule to the facts at issue in Brooks, we held that a March 9, 2017 order adjudicating all claims other than the assessment of costs was the triggering order for filing of a notice of appeal; as we explained, the assessment of costs was merely “a matter incident to the merits of [the plaintiff‘s] case ‘and not such a controlling element of the cause as to determine the question of finality of the decreе.‘” Id. (quoting Hitachi Capital Am. Corp, 2016 WL 5210860, at *4). Because the notice of appeal was untimely, we dismissed the appeal for lack of subject matter jurisdiction.
A motion for discretionary costs demands the same treatment. The Tennessee Supreme Court has expressly held that a judgment is final where it adjudicates “the whole merits of the case.” Richardson v., 913 S.W.2d at 460. Like court costs, discrеtionary costs are incidental, or ancillary, to the underlying merits of the case. Roberts, 2010 WL 4865441, at *8; see also Black‘s Law Dictionary 101 (9th ed. 2009) (defining ancillary as “[s]upplementary” or “subordinate“); Black‘s Law Dictionary at 830 (defining incidental as “[s]ubordinate to something of greater importance“). The nature of court costs as ancillary does not result from the fact that they are sought by filing a post-trial motion, but based on the fact that they are merely incidental, or subordinate, to the adjudication of the merits of the case. See Brooks, 2018 WL 5879699, at *4; Hitachi Capital Am. Corp, 2016 WL 5210860, at *1, *4. Likewise, the nature of discretionary costs as ancillary does not depend on the timing of such a motion, but on the nature of the relief sought.
The trial court‘s June 5, 2018 order fully adjudicated all of the substantive claims other than the assessment of discretionary costs. As such, the time for filing a notice of appeal of the trial court‘s substantive rulings began to run on June 5, 2018.1 Plaintiffs’ notice of appeal, filed on July 23, 2018, was therefore untimеly. Consequently, this Court lacks subject matter jurisdiction over this appeal.
Conclusion
This appeal is dismissed for lack of subject matter jurisdiction. Costs of this appeal are taxed to Plaintiffs/Appellants, for which execution may issue if necessary.
J. STEVEN STAFFORD, JUDGE