                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                     October 18, 2013

                  ALLISON JACOB v. ALEXIS PARTEE, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-004519-10     Robert L. Childers, Judge


                No. W2013-01078-COA-R3-CV - Filed October 30, 2013


The circuit court denied Appellants’ Rule 60.02 motion on the ground that it lacked subject
matter jurisdiction to adjudicate the motion. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J.,
joined. A LAN E. H IGHERS, P.J., W.S., filed a separate concurring opinion.

James B. McClain,III, Memphis, Tennessee, for the appellants, Alexis Partee and Tom
Bedell, Jr.

Randall Jay Fishman and Richard S. Townley, Memphis, Tennessee, for the appellee, Allison
Jacob.

                                         OPINION

       This is the second appearance of this matter in this Court and the facts relevant to our
disposition of the current appeal are not disputed. This lawsuit originally was filed by
Allison Jacob (Ms. Jacob) against Alexis Partee (Ms. Partee) and Tom Bedell, Jr. (Mr.
Bedell) in the Shelby County General Sessions Court in November 2009. Ms. Partee and Mr.
Bedell then filed a civil warrant against Third-Party Defendant Top Gun Body Shop (“Top
Gun”). Following entry of a judgment by the general sessions court in August 2009, Ms.
Partee, Mr. Bedell and Top Gun (collectively, “Defendants”) filed notices of appeal to the
Circuit Court for Shelby County and paid the standard filing fee. Ms. Jacob filed a motion
to dismiss, asserting that the circuit court lacked subject matter jurisdiction because
Defendants had failed to file timely appeal bonds. The circuit court granted her motion in
March 2012. Upon appeal, this Court affirmed, holding that the payment of the appeal filing
fee did not satisfy the requirements of Tennessee Code Annotated § 27-5-103. Jacob v.
Partee, No. W2012-00205-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2012)(Jacob I). On
December 12, 2012, the Tennessee Supreme Court denied permission to appeal, and the
mandate on this Court’s judgment remanding the matter to the circuit court was issued on
December 18, 2012. On February 4, 2013, the circuit court, in turn, remanded the matter to
the general sessions court for execution on the judgment.

        Shortly thereafter, a different panel of this Court held that, notwithstanding the result
in Jacob I, section 27-5-103 does not require an appellant to file an appeal bond with no
monetary limit. Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-
CV, 2013 WL 593911, at *19 (Tenn. Ct. App. Feb. 15, 2013). In Bernatsky, we held that
section 27-5-103 allows an appellant to file an appeal bond in the form of a surety bond or
a cash bond upon appeal from general sessions court to the circuit court, and that the amount
of the bond may be in a certain amount as established by the legislature or its designee. Id.

        On February 21, 2013, Ms. Partee and Mr. Bedell (hereinafter, collectively,
“Appellants”) filed a Tennessee Rules of Civil Procedure Rule 60.02 motion in the circuit
court, praying the circuit court to set aside its dismissal of the matter in light of our holding
in Bernatsky. Ms. Jacob moved to dismiss Appellants’ motion for lack of subject matter
jurisdiction, asserting that jurisdiction was with the general sessions court. Ms. Jacob
additionally asserted that Bertnasky was not controlling authority where it was an
unpublished case and that, assuming it was controlling authority, it would not entitle
Appellants to relief from judgment under Rule 60. She also submitted that our holding in
Jacob I established the law of the case. Following a hearing in March 2013, the circuit court
denied Appellants’ motion upon determining that it did not have subject matter jurisdiction
and, alternatively, that Jacob I constituted the law of the case. The circuit court entered final
judgment on May 1, 2013, and Appellants filed a timely notice of appeal to this Court.

                                       Issue Presented

       Appellants present the following issue for our review, as worded by them:

       Whether the circuit court erred in denying relief to Appellants, pursuant to
       Tennessee Rules of Civil Procedure 60.02, after this Court overruled its prior
       decision finding no subject matter jurisdiction.

                                     Standard of Review

       A trial court’s disposition of a Rule 60.02 for relief is reviewed for an abuse of
discretion. E.g, Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). An abuse of

                                               -2-
discretion occurs “‘only when the trial court applied incorrect legal standards, reached an
illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employed reasoning that causes an injustice to the complaining party.’” Id. (quoting State
v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010) (quoting State v. Banks, 271 S.W.3d 90, 116
(Tenn. 2008))). This standard does not allow an appellate court to substitute its judgment for
that of the trial court. Id. (citing see Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001);
Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003)). Rather, “[u]nder the abuse of discretion
standard, a trial court’s ruling ‘will be upheld so long as reasonable minds can disagree as
to [the] propriety of the decision made.’” Id. (quoting Eldridge, 42 S.W.3d at 85 (quoting
State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000))).

                                         Discussion

       As noted above, the trial court denied Appellants’ Rule 60.02 motion upon
determining that it did not have subject matter where the matter had been remanded to the
general sessions court. The determination of whether a court has subject matter jurisdiction
is a question of law. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). Our
review of the trial court’s determination on that issue accordingly is de novo, with no
presumption of correctness. Id.

       Subject matter jurisdiction concerns the court’s authority to adjudicate a matter. In
re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012). It is conferred by statute and by the
constitution, and cannot be waived or conferred by the parties by silence, consent, or plea.
Id. An order of a court acting without subject matter jurisdiction is void. Id. The question
of subject matter jurisdiction may be raised at any time in any court. Freeman v. CSX
Transp., Inc., 359 S.W.3d 171, 176 (Tenn. Ct. App. 2010) (citations omitted).

        In the current case, Appellants assert that the circuit court had jurisdiction to
adjudicate their Rule 60.02 motion because it was the court which rendered the judgment
from which Appellants sought relief. Appellants assert that the general sessions court could
not properly assume jurisdiction because it is not a court of record and because it could not
set aside the higher court’s order. Appellants also assert that, although the circuit court had
entered an order remanding the matter to the general sessions court, the matter was not “fully
remanded” because the file had not yet been transmitted. They additionally contend that the
circuit court may adjudicate a Rule 60.02 motion after an appeal has been filed in this Court,
and that it accordingly may adjudicate a Rule 60.02 motion notwithstanding remand to the
general sessions court. Appellants rely on Elk Yarn Mills, Inc. v. 514 Shares of Common
Stock of Elk Yarn Mills, Inc., 1987 WL 26386 (Tenn. App. Dec, 9, 1987), for the proposition
that a pending appeal does not bar the filing of a Rule 60.02 motion in a trial court. They
submit that, similarly, an order of remand to the general sessions court should not divest the

                                              -3-
circuit court of jurisdiction to consider a subsequently filed Rule 60.02 motion. We disagree.

       As an initial matter, we observe that the Elk Yarn court concluded:

       the best rule is to allow the circuit, chancery, and other trial courts of
       Tennessee to entertain motions for relief from judgment under Rule 60.02 once
       a case has been appealed without first seeking permission from the Court of
       Appeals, and if the trial court denies the motion, then the denial should be, if
       at all possible, consolidated with the main appeal for consideration; but if the
       trial court is inclined to grant the motion, then leave may be sought from the
       appellate court to remand the case for disposition of the motion.

Elk Yarn, 1987 WL 26386, at *2 (emphasis added). The Elk Yarn court accordingly held that
the trial court had jurisdiction to entertain the Rule 60.02 motion notwithstanding that the
case had been appealed. Id. Under Elk Yarn, however, the trial court could not fully dispose
of the motion absent leave for remand from this Court.

        Additionally, cases decided since Elk Yarn have emphasized that a trial court losses
jurisdiction of a matter after an appeal has been perfected, and may not act in the case absent
leave of the appellate court. E.g., Holladay v. Speeed, 208 S.W.3d 408, 414 (Tenn. Ct. App.
2005)(citations omitted). “A motion under . . . Rule 60.02 does not affect the finality of a
judgment or suspend its operation[.]” Tenn. R. Civ. P. 60.02. Further, a trial court does not
have jurisdiction to consider a Rule 60.02 motion filed while an appeal is pending. Peck v.
Tanner, 181 S.W.3d 262, 267 (Tenn. 2005); Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596
(Tenn. 1994). Rather, a party who wishes to seek relief under Rule 60.02 while an appeal
is pending must first obtain leave from the appellate court, and leave for remand should be
freely granted. Id. In Spence, the supreme court expressly overruled all contrary decisions.
Spence, 883 S.W.2d at 596 n.5.

       Similarly, the appellate court loses jurisdiction and a trial court reacquires jurisdiction
upon remand, although that jurisdiction may be limited by the terms of the appellate court’s
remand order. Parish v. Marquis, 137 S.W.3d 621, 624 (Tenn. 2004)(citing see Tenn. Code
Ann. § 21-1-810 (1994)); Raht v. Southern Ry. Co., 387 S.W.2d 781, 788 (Tenn. 1965);
Tunstall v. Tunstall, No. 03A01-9312-CV-00444, 1994 WL 361839, at *4 (Tenn. Ct. App.
July 11, 1994). The appellate court reinvests the trial court with jurisdiction upon issuance
of the mandate. First American Trust Co. v. Franklin-Murray, 59 S.W.3d 135, 141 (Tenn.
Ct. App. 2001). Even where, as here, the lower court is required to perform the “ministerial
act” of dismissal upon remand, the lower court retains jurisdiction until dismissal is
accomplished. Parish, 137 S.W.3d at 624 (holding that the one-year statute of limitations
provided by the savings statute commences on the date the trial court enters dismissal on

                                               -4-
remand, and not on date of the appellate court’s judgment remanding the matter). Absent
certain explicit exceptions not present here, the jurisdictional principles prevent the
“undesirable consequences of permitting a case to be pending in more than one court at the
same time.” First American Trust, 59 S.W.3d at 141 (citing Spence, 883 S.W.2d at 596).

        We finally turn to Appellants’ assertion that the matter had not been “fully remanded”
to the general sessions court when they filed their Rule 60.02 motion. Appellants rely on
Raht v. Southern Railway for the proposition that, because the file was not physically
transferred from the circuit court to the general sessions court before Appellants filed their
Rule 60.02 motion, “jurisdiction did not fully vest in General Sessions.” Raht does not stand
for that proposition. The Raht court stated that the trial court in that case “reacquired the
jurisdiction which it lost by the review proceedings” upon issuance of the supreme court’s
mandate. Raht, 387 S.W.2d at 787. The Raht court observed that the complainants in that
case took no action to enforce the court’s order upon remand where, in the interim, they had
obtained more relief from the defendant railway company than originally demanded. Id. at
788. The Raht court further stated, “[w]e think the foundation of the lawsuit was removed
when the Rahts failed to pursue the then accepted practice of making effective the mandate
of this Court.” Id. It concluded, “[f]inally, it is our opinion that this Court lost jurisdiction
of the case after the order of remand and procedendo thereon.” Id. at 788. The Raht court
noted that, absent a writ of mandamus arising from a trial court’s refusal to abide by an
appellate court’s mandate, the appellate court’s jurisdiction “ended” when its mandate issued.
Id. at 787.

        In this case, the circuit court’s February 2013 order remanding the matter to the
general sessions court unambiguously divested the circuit court of jurisdiction, and vested
jurisdiction in the general sessions court. Accordingly, the trial court did not abuse its
discretion by denying Appellants’ Rule 60.02 motion where it dismissed the matter for lack
of jurisdiction.

                                           Holding

       In light of the foregoing, we affirm the circuit court’s denial of Appellants’ Rule 60.02
motion on the ground that it lacked jurisdiction. We decline to address the trial court’s
alternative determination that Jacob I constitutes the law of the case and precludes further
consideration of the matter as advisory in light of this Opinion. Costs on appeal are taxed




                                               -5-
to the Appellants, Alexis Partee and Tom Bedell, Jr. This matter is remanded to the trial
court for execution of the judgment and the collection of costs.




                                                 _________________________________
                                                 DAVID R. FARMER, JUDGE




                                           -6-
