                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                   July 17, 2013 Session

                 WILMA GRIFFIN v. CAMPBELL CLINIC, P.A.

               Direct Appeal from the Circuit Court for Shelby County
                    No. CT-002751-07     James F. Russell, Judge


                  No. W2013-00471-COA-R3-CV - Filed July 31, 2013


The Circuit Court dismissed this appeal from General Sessions Court based on the
Appellant’s failure to file a surety bond. Appellant paid costs in the General Sessions Court
pursuant to Tennessee Code Annotated Section 8-21-401(b)(1)(C)(i), but did not submit a
surety bond under Tennessee Code Annotated Section 27-5-103. The circuit court held that
failure to post the surety bond under Section 27-5-103 resulted in a lack of subject matter
jurisdiction in the circuit court. Based on this Court’s holding in Bernatsky v. Designer
Baths & Kitchens, L.L.C., No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct.
App. Feb. 15, 2013), we reverse and remand for further proceedings.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
joined and A LAN E. H IGHERS, P.J.,W.S., filed a dissenting opinion.

John W. Leach, Louis Peo Chiozza, Jr., and Steven R. Walker, Memphis, Tennessee, for the
appellant, Wilma Griffin.

Jerry E. Mitchell and Kevin O’Neal Baskette, Memphis, Tennessee, for the appellee,
Campbell Clinic, P.A.

                                          OPINION

                                       I. Background

       Only a brief recitation of facts is necessary for disposition of this appeal. On February
26, 2007, Plaintiff/Appellant Wilma Griffin (“Appellant”) commenced this action in General
Sessions Court against Defendant Appellee Campbell Clinic, P.A. (“Campbell Clinic”),
alleging damages due to the medical malpractice of one of Campbell Clinic’s physicians. On
May 15, 2007, judgment was entered in the General Sessions Court in favor of Campbell
Clinic.

        Appellant filed a notice of appeal of the General Sessions Court’s ruling on May 16,
2007. On the same day, Appellant paid to the General Sessions Court clerk the standard filing
fee for appeals pursuant to Tennessee Code Annotated Section 8-21-401(b)(1)(C)(i),1 but did
not post a surety bond in an amount uncertain. After a Motion for a More Definite Statement
was filed by Campbell Clinic, a complaint was filed in the Circuit Court on August 24, 2007.
Campbell Clinic answered on October 11, 2007.

        The case proceeded typically for several years. On September 11, 2012, however,
Campbell Clinic filed a Motion to Dismiss Appellant’s Complaint, asserting that the Circuit
Court never acquired jurisdiction because Appellant did not post a surety bond at the time
the appeal was taken pursuant to Tennessee Code Annotated Section 27-5-103.2 The trial
court entered an order on November 15, 2012, dismissing the case for lack of subject matter
jurisdiction. Appellant appeals, raising a single issue, as restated from her brief: whether the
trial court erred in holding that paying a cash bond in an amount set forth in Tennessee Code
Annotated Section 8-21-401 to perfect an appeal to Circuit Court does not satisfy the
obligation to “give bond with good security . . . for the costs of the appeal” under Tennessee
Code Annotated Section 27-5-103? 3


       1
           Tennessee Code Annotated Section 8-21-401(b)(1)(C) provides, in relevant part:

                 (C) In the following specific types of civil actions, the clerk shall charge a
                 standard court cost of one hundred fifty dollars ($150) at the institution of
                 a case:
                 (i) Appeals to the circuit or chancery court from juvenile court, general
                 sessions court, probate courts, municipal courts or an administrative
                 hearing; writs of certiorari from lower courts; or administrative hearings;
                 ....
       2
           Tennessee Code Annotated Section 27-5-103 provides:

                 (a) Before the appeal is granted, the person appealing shall give bond with
                 good security, as hereinafter provided, for the costs of the appeal, or take
                 the oath for poor persons.
                 (b) An appeal bond filed by a plaintiff or defendant pursuant to this chapter
                 shall be considered sufficient if it secures the cost of the cause on appeal.


       3
           As stated above, this is a single issue case concerning the appeal of this case from the General
                                                                                              (continued...)

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                                               II. Analysis

        It is well settled that subject matter jurisdiction implicates a court’s power to
adjudicate a particular case or controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn.
2004); Earls v. Mendoza, No. W2010-01878-COA-R3-CV, 2011 WL 3481007, at *5 (Tenn.
Ct. App. Aug. 10, 2011). “In the absence of subject-matter jurisdiction, a court cannot enter
a valid, enforceable order.” Earls, 2011 WL 3481007, at *5 (citing Brown v. Brown, 198
Tenn. 600, 281 S.W.2d 492, 497 (Tenn. 1955)). When subject matter jurisdiction is
questioned, we must ascertain whether the Tennessee Constitution, the Tennessee General
Assembly, or the common law have conferred upon the court the power to adjudicate the case
before it. Id. (citing Staats v. McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006)).
“Since a determination of whether subject matter jurisdiction exists is a question of law, our
standard of review is de novo, without a presumption of correctness.” Northland Ins. Co.
v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

        The issue raised in this appeal was recently addressed in this Court's opinion,
Bernatsky v. Designer Baths & Kitchens, L.L.C., No. W2012-00803-COA-R3-CV, 2013
WL 593911 (Tenn. Ct. App. Feb. 15, 2013). In Bernatsky, as in the instant appeal, the parties
appealed a General Sessions Court decision to the Circuit Court, paid “standard court cost”
of the appeal under Tennessee Code Annotated Section 8-21-401(b)(1)(C)(i), but did not file
an appeal bond pursuant to Section 27-5-103(a). The Circuit Court dismissed the appeal for
lack of subject matter jurisdiction based on the appellants’ failure to file an appeal bond

        3
        (...continued)
Sessions Court. However, the record in this case contains various unnecessary documents relating to
discovery in the Circuit Court matter. Documents relating to discovery are specifically excluded by
Tennessee Rule of Appellate Procedure 24(a), which provides, in relevant part, that:

                The following papers filed in the trial court are excluded from the record:
                (1) subpoenas or summonses for any witness or for any defendant when
                there is an appearance for such defendant; (2) all papers relating to
                discovery, including depositions, interrogatories and answers thereto,
                reports of physical or mental examinations, requests to admit, and all
                notices, motions or orders relating thereto; (3) any list from which jurors
                are selected; and (4) trial briefs; and (5) minutes of opening and closing of
                court. Any paper relating to discovery and offered in evidence for any
                purpose shall be clearly identified and treated as an exhibit. No paper need
                be included in the record more than once.

Id. (emphasis added). In designating the record, Appellant specifically requested that all papers filed in the
trial court be included in the record on appeal, except “those specifically excluded” by Rule 24(a). Despite
this directive, clearly excluded and irrelevant documents were included in the record.


                                                     -3-
under Section 27-5-103(a). Bernatsky, 2013 WL 593911, at *2. The appellants appealed the
dismissal to this Court.

       In the Bernatsky appeal, this Court reversed the Circuit Court’s dismissal of the
appeal from General Sessions Court and specifically held that the payment of “standard court
cost” under Section 8-21-401(b)(1)(C)(i) satisfied the requirement to give bond for the costs
of the appeal to circuit court under Section 27-5-103(a). Bernatsky, 2013 WL 593911, at
*19. The Bernatsky holding was based upon this Court's conclusion that Section 27-5-103
is ambiguous because it is imprecise and could reasonably be interpreted in more than one
way. Bernatsky, 2013 WL 593911, at *7. Accordingly, we construed Section 27-5-103 and
Section 8-21-401 together, and considered the language and legislative history of both
statutes, as well as the relevant caselaw. After doing so, the Bernatsky Court held that giving
a cash bond of $211.50, which included the $150 “standard court cost” for such appeals
under Section 8-21-401(b)(1)(C)(i), satisfied the requirement in Section 27-5-103(a) to “give
bond with good security . . . for the costs of the appeal.” In reaching this conclusion,
Bernatsky specifically overruled University Partners Development v. Bliss, No. M2008-
00020-COA-R3-CV, 2009 WL 112571 (Tenn. Ct. App. Jan. 14, 2009) and 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). Bernatsky, 2013 WL 593911, at *19 & n.21.
Accordingly, Bernatsky reversed the Circuit Court’s dismissal of the case and remanded for
further proceedings. Id.; accord Fields v. Williams, No. W2012-01949-COA-R3-CV, 2013
WL 1845450 (Tenn. Ct. App. April 30, 2013); West v. AMISUB (SFH), Inc., No. W2012-
00069-COA-R3CV, 2013 WL 1183074 (Tenn. Ct. App. March 21, 2013); Brown v. Shtaya,
No. W2012-00875-COA-R3-CV, 2013 WL 836949 (Tenn. Ct. App. March 6, 2013);
Andrews v. Clemmer, No. W2012-00986-COA-R3CV, 2013 WL 776073 (Tenn. Ct. App.
Feb. 28, 2013); Meacham v. Starnes, No. W2012-00192-COA-R3-CV, 2013 WL 760979,
(Tenn. Ct. App. Feb. 27, 2013).

        In light of this Court’s opinion in Bernatsky, and for the foregoing reasons, we
conclude that the Circuit Court erred in determining that it lacked subject matter jurisdiction
based on Appellant’s failure to file a surety bond. The order of dismissal is reversed and the
case is remanded for all further proceedings as may be necessary and are consistent with this
Opinion. Costs of the appeal are assessed against the Appellee, Campbell Clinic P.A., for
which execution may issue if necessary.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE



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