                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                  AUGUST 15, 2005 Session

                   CITY OF CLARKSVILLE v. MARCUS DIXON
                          and ANTHONY P. BARNETT

                Direct Appeal from the Circuit Court for Montgomery County
                Nos. 50300483 and 50300535      John H. Gasaway, III, Judge



                   No. M2004-01656-COA-R3-CV - Filed December 20, 2005


In this appeal, we are asked to determine whether the trial court erred when it granted two petitions
for writ of certiorari, held that the city court’s penalties issued to Marcus Dixon and Anthony Barnett
violated Article VI, Section 14 of the Tennessee Constitution, and held that the city court’s
procedure for collection of fines in chronological order violated public policy. The appellant asserts
(1) that the appellees’ use of petitions for writ of certiorari were used impermissibly as a substitute
for appeal; (2) that the issues raised by the appellees in their petitions for writ of certiorari were
barred by the doctrine of res judicata; (3) that the Tennessee Supreme Court’s decision in Davis v.
City of Chattanooga, 54 S.W.3d 248 (Tenn. 2001), applied prospectively and, thus, did not apply
to the appellees’ penalties; and (4) that the city court’s collection of fines in chronological order was
not against public policy. We affirm in part and reverse in part the decision of the trial court, and
remand for further proceedings consistent with this opinion.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

David Haines, City Attorney, Clarksville, TN, for Appellant

Stacy A. Olson, Clarksville, TN, for Appellee, Marcus Dixon

Sharon T. Massey, Clarksville, TN, for Appellee, Anthony P. Barnett
                                                        OPINION

                                      I. FACTS & PROCEDURAL HISTORY

        Between September 1998 and November 1999, Marcus Dixon (“Dixon”) was cited six times
for playing loud music in violation of a Clarksville (“City” or “Appellant”) city ordinance. After
Dixon failed to appear in the Clarksville City Court (the “City Court”), the City Court entered a
default judgment against Dixon, levying fines in the amount of $500 for each violation. Between
September 1999 and May 2002, Anthony Barnett (“Barnett,” or collectively with Dixon,
“Appellees”) was cited nine times for playing loud music in violation of the same ordinance. The
City Court imposed fines ranging from $80.00 to over $500.00 for each of Barnett’s violations.
Barnett paid three of the fines, but the other fines remain unpaid.

        In February 2003, Barnett received a citation for speeding, and the City Court subsequently
imposed a fine of $72.00. In June of 2003, Barnett tendered payment for this most recent fine to the
city clerk. The City clerk refused to accept the payment. In March 2001, the City Court entered an
oral order directing that a person “shall not be permitted to pay, satisfy, or resolve any subsequent
City of Clarksville citation until all prior citations have been fully paid, satisfied or resolved.” In
June of 2003, the City Court entered an order nunc pro tunc making the oral order effective as of
March 1, 2001.

        After the court clerk refused his payment, Barnett filed a Petition for Writ of Certiorari in the
Montgomery County Circuit Court pursuant to section 27-8-101 et seq. of the Tennessee Code.
Dixon also filed a similar petition, and the circuit court consolidated the petitions by agreement of
Dixon and Barnett. The petitions alleged that the City Court violated the $50.00 fine clause in
Article VI, Section 14 of the Tennessee Constitution.1 Barnett’s petition also alleged that the City
Court’s procedure for collecting the fines violated public policy. Neither party sought an appeal
pursuant to section 27-5-101 of the Tennessee Code governing appeals from judgments of a
municipal court.2 As a result, the City filed a motion to quash the petitions alleging that Dixon and
Barnett improperly used the writ of certiorari as a substitute for an appeal under section 27-5-101
of the Tennessee Code.



        1
            Article VI, Section 14 of the Tennessee Constitution reads as follows:

                   No fine shall be laid on any citizen of this State that shall exceed fifty dollars,
                   unless it shall be assessed by a jury of his peers, who shall assess the fine at the time
                   they find the fact, if they think the fine should be more than fifty dollars.

        2
            Section 27-5-101 of the Tennessee Code reads as follows:

                   Any person dissatisfied with the judgment of a recorder or other officer of a
                   municipality charged with the conduct of trials, in a civil action, may, within ten
                   (10) entire days thereafter, Sundays exclusive, appeal to the next term of circuit
                   court.

                                                             -2-
        On October 31, 2003, the circuit court denied the City’s motion to quash Dixon’s and
Barnett’s petitions and held (1) that the fines issued by the City Court were unconstitutional; (2)
because the City Court exceeded its jurisdiction by issuing unconstitutional fines, the prospective
application of City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001) and the doctrine of res
judicata did not bar Dixon and Barnett from contesting the City Court’s judgments; and (3) that the
City Court’s policy regarding payment of fines in chronological order was against public policy. On
November 25, 2003, the City filed a motion to alter or amend the judgment. On July 16, 2004, the
circuit court denied the City’s motion to alter or amend the judgment.

                                      II. ISSUES PRESENTED


Appellant has filed a timely notice of appeal, presenting the following issues:

1.     Whether the circuit court erred when it denied Appellant’s motion to quash Appellees’
       petitions for writ of certiorari;
2.     Whether the circuit court incorrectly held that Appellees’ collateral attacks on the City
       Court’s judgments were not barred by the doctrine of res judicata;
3.     Whether the circuit court erred in determining that the fines imposed by the City Court were
       void; and
4.     Whether the circuit court erred in holding that the City Court’s order requiring chronological
       payment of fines was void since it violated public policy.

For the following reasons, we affirm in part and reverse in part the decision of the circuit court, and
remand this case for further proceedings consistent with this opinion.

                                         III.   DISCUSSION

                                    A. Writ of Certiorari Grant

        Appellant asserts on appeal that the circuit court erred when it did not grant its motion to
quash Appellees’ petitions for writs of certiorari because Appellees are impermissibly using a writ
of certiorari as a substitute for appeal. We disagree.

       As this Court has noted,

               Writs of certiorari . . . are not granted as a matter of right. Boyce v.
               Williams, 215 Tenn. 704, 389 S.W.2d 272, 277 (Tenn. 1965). Rather,
               the decision to issue a writ of certiorari . . . lies in the sound
               discretion of the trial judge. Id. Accordingly, our review is limited
               to determining whether the circuit court abused its discretion in
               granting Appellees’ petition for certiorari. . . .



                                                 -3-
Ancro Fin. Co. v. Johnson, No. W2000-02709-COA-R3-COV, 2001 Tenn. App. LEXIS 799, at *5-
6 (Tenn. Ct. App. Oct. 23, 2001).      “A trial court abuses its discretion ‘only when it applies an
incorrect legal standard, or reaches a decision which is against logic or reasoning that causes an
injustice to the party complaining.’” Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn. 2004) (quoting
Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004) (quoting Eldridge v. Eldridge,
42 S.W.3d 82, 85 (Tenn.2001))).

        While under Tennessee law, writs of certiorari may not be used as a substitute for appeal
absent certain exceptions, Uselton v. Price, 292 S.W.2d 788, 792-93 (Tenn. Ct. App. 1956) (quoting
McMurry v. Milan, 32 Tenn. 176, 178-79 (1852)), section 27-8-101 of the Tennessee Code states
that a “writ of certiorari may be granted whenever authorized by law, and also in all cases where an
inferior tribunal . . . exercising judicial functions has exceeded the jurisdiction conferred, or is acting
illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy,”
Tenn. Code Ann. § 27-8-101 (2005). Accordingly, a writ of certiorari is the proper method for
challenging whether an inferior tribunal’s action is void when the tribunal bases its action on an
unconstitutional statute or acts under an unconstitutional statute, thereby exceeding its jurisdiction.
See State Bd. of Med. Exam’rs v. Friedman, 263 S.W. 75, 79 (Tenn. 1923).

       In this case, Appellees are attempting to render the amount of the fines imposed by the City’s
ordinances they violated unconstitutional under Article VI, Section 14 of the Tennessee Constitution.
Thus, the circuit court’s grant of Appellees’ petition for writ of certiorari and its denial of
Appellant’s motion to quash Appellees’ petitions were not an abuse of discretion.

                                           B.    Res Judicata

       Appellant has also asserted that Appellees cannot collaterally attack the judgments of the City
Court because, after the time for appeal of those fines had expired, the judgments became final and
were no longer subject to collateral attack based on the doctrine of res judicata. We disagree.

        Generally, “[t]he doctrine of res judicata ‘bars a second suit between the same parties or their
privies on the same cause of action with respect to all issues that were or could have been litigated
in the former suit.’” Cohn v. Bd. of Prof’l Responsibility, 151 S.W.3d 473, 486 (Tenn. 2004)
(quoting Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (quoting Goeke
v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989))). However, a petitioner does not lose his or her right
to contest a void judgment by an inferior tribunal by writ of certiorari where the tribunal is acting
in excess of its jurisdiction because the petitioner did not exhaust the appeals process. Houser v.
McKennon, 60 Tenn. (1 Baxt.) 287, 288 (Tenn. 1872) (finding that petitioner could contest by writ
of certiorari a justice of the peace’s judgment against him as void that was in excess of maximum
judgment the justice could render despite the fact that petitioner failed to appeal the judgment);
accord Connors v. City of Knoxville, 189 S.W. 870, 870-72 (Tenn. 1916).

        In the instant case, Appellees were not trying to re-litigate the issues when they petitioned
for writ of certiorari. Rather, Appellees sought relief from a void judgment of an inferior tribunal


                                                   -4-
that exceeded its jurisdiction by rendering fines over $50 in violation of Article VI, Section 14 of
the Tennessee Constitution. Thus, the doctrine of res judicata does not bar the Appellees’ petitions
for writ of certiorari.3

                                             C.     Voiding of City Fines

       On appeal, Appellant asserts that although our supreme court’s decision in City of
Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001), rendered any fine issued by a municipal court
as a punishment void pursuant to Article VI, section 14 of the Tennessee Constitution, Davis does
not apply retroactively. We agree.

         As our supreme court has noted,

                            In civil cases, judicial decisions overruling prior cases
                   generally are given retrospective effect. See, e.g., Perez v. McConkey,
                   872 S.W.2d 897, 906 (Tenn. 1994) (applying abolition of assumption
                   of the risk doctrine retroactively); Cook v. Spinnaker’s of Rivergate,
                   Inc., 846 S.W.2d 810, 812 (Tenn. 1993) (further describing proper
                   retroactive application of McIntyre); McIntyre v. Balentine, 833
                   S.W.2d 52, 58 (Tenn. 1992) (applying comparative fault doctrine
                   retroactively). Retrospective effect will be “denied only if such an
                   application would work a hardship upon those who have justifiably
                   relied upon the old precedent.” Marshall v. Marshall, 670 S.W.2d
                   213, 215 (Tenn. 1984); see generally, S.R. Shapiro, Annotation,
                   Prospective or Retroactive Operation of Overruling Decision, 10
                   A.L.R.3d 1371 (1966).

                           Nevertheless, we expressly held in Blank v. Olsen, 662
                   S.W.2d 324 (Tenn. 1983), that “in the absence of . . . an expressed
                   intent [to make it retroactive,] the rule is . . . that the decision
                   overruling a judicial construction of a statute will not be given
                   retroactive effect.” Id. at 325 (emphasis added) (citing 20 Am. Jur.
                   2d Courts § 234 (current version at 20 Am. Jur. 2d Courts § 175)).
                   We cited with approval authority from other jurisdictions that had


         3
            Appellants have asserted in their brief on appeal that if this Court were to hold that res judicata does not bar
Appellees’ contest of the Clarksville city court’s judgments, a city court’s judgments could be subjected to attack in
perpetuity. Although a city court’s judgment may be subject to attack on constitutional grounds by writ of certiorari as
in this case, generally it may not be subject to attack on the merits of the decision beyond the appeals time limit. W hile
we find that the time limit for filing a petition for writ of certiorari is by the next term of the circuit court, Copeland v.
Cox, 52 T enn. 171, 174 (1871), this time limit is no longer applicable since circuit courts no longer sit in terms, see
Tenn. Code Ann. § 16-2-510 (2005). Thus, there is no current time limit for filing petitions for writs of certiorari. This
Court may not place time limits on such filings. See Tenn. Code Ann. § 16-3-402, -403, -404 (2005).



                                                             -5-
                  held “a judicial interpretation of a statute becomes a part of the statute
                  itself” and that “[a] change in the judicial view of the law by a
                  subsequent decision could not amount to more than a change in the
                  law by legislation, and, of course, could act prospectively only.” Id.
                  at 326 (internal quotations and citations omitted).

Hill v. City of Germantown, 31 S.W.3d 234, 239 (Tenn. 2000). “A law is retrospective if it
‘changes the legal consequences of acts completed before its effective date.’” Miller v. Fla., 482
U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 31 (1981)).

        Article VI, Section 14 of the Tennessee Constitution states that “[n]o fine shall be laid on any
citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers,
who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty
dollars.” Tenn. Const. art. VI, § 14. In 1964, this Court construed the word “fine” in this
constitutional provision so as not to include civil penalties assessed by municipalities. O’Dell v. City
of Knoxville, 388 S.W.2d 150, 152 (Tenn. Ct. App. 1964). In 2001, our supreme court in City of
Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001), held that a civil penalty imposed by a municipal
ordinance that is punitive in nature is a fine and subject to the constraints of Article VI, section 14
of the Tennessee Constitution. Id. at 281. Thus, any penalty of this nature that exceeds fifty dollars
($50) is void.

        As a result, Davis overruled O’Dell’s construction of Article VI, Section 14 of the Tennessee
Constitution as it applied to municipal ordinance civil penalties that are punitive in nature. Further,
in Davis, the supreme court made no mention whether its decision in Davis should apply
retroactively. Absent this express judicial intent, the supreme court’s construction of Article VI,
Section 14 of the Tennessee Constitution in Davis applies prospectively. Thus, Davis only applies
to penalties imposed for municipal ordinance violations committed after Davis’ judgment date,
September 4, 2001.4 Accordingly, any judgment in excess of fifty dollars ($50) imposed on
municipal ordinance violations committed before this date is valid.5




         4
            W e note that the circuit court found that the issue here was not a constitutional one but a jurisdictional one
and that each judgment was void ab initio. However, the Clarksville city court was not acting in excess of its jurisdiction
prior to Davis because it was within the jurisdiction of a city court to issue civil penalties up to five hundred dollars
($500). See Tenn. Code Ann. §§ 6-54-306, -308 (2005); O’Dell, 388 S.W .2d 150.

         5
           W e note that Barnett was cited for several municipal ordinance violations after Davis’ judgment date and
fined for each violation an amount in excess of $50. W e reduce the fines imposed on those violations to $50 per
violation. See Town of Nolensville v. King, 151 S.W .3d 427, 433 (Tenn. 2004) (citations omitted) (modifying fines
imposed by municipal judge to fifty dollars per offense).

                                                           -6-
                                     D.     City Court’s Collection of Fines


        Finally, Appellant contends that the circuit court erred when it found the City Court’s rule
for collection of fines chronologically void as “against the public policy expressed in both the
Clarksville Code and Tennessee Code Annotated.”

         As our supreme court has stated,
                “[t]he public policy of Tennessee ‘is to be found in its constitution,
                statutes, judicial decisions and applicable rules of common law.
                Home Beneficial Ass’n. v. White, 180 Tenn. 585, 177 S.W.2d 545
                (1944).’” Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987) (quoting
                State ex rel. Swann v. Pack, 527 S.W.2d 99, 112 n. 17 (Tenn. 1975),
                cert. denied, 424 U.S. 954, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976)).
                Primarily, it is for the legislature to determine the public policy of the
                state, Hyde v. Hyde, 562 S.W.2d 194, 196 (Tenn. 1978), and only in
                the absence of any declaration in the Constitution and statutes may
                public policy be determined from judicial decisions. Cavender v.
                Hewitt, 145 Tenn. 471, 475, 239 S.W. 767, 768 (1921). However,
                where there is no declaration in the Constitution or the statutes, and
                the area is governed by common law doctrines, it is the province of
                the courts to consider the public policy of the state as reflected in old,
                court-made rules. Hanover v. Ruch, 809 S.W.2d 893, 896 (Tenn.
                1991).

Crawford v. Buckner, 839 S.W.2d 754, 759 (Tenn. 1992).
         Under Tennessee law, “[i]t is the duty of the city judge to collect and receipt for all fines
imposed by the city judge.” Tenn. Code Ann. § 6-21-507(a) (2005). Moreover, the Clarksville City
Code, [t]he city court judge shall have power and authority to impose fines . . . and to enforce the
collection of such fines, costs and forfeitures imposed by him. . . .” Clarksville, Tenn., Official Code
of City of Clarksville, Part I, Art. IV, § 4(1). The Tennessee legislature has been silent on whether
a city judge may establish rules relating to the collection of civil penalties imposed by him or her.6
         When this Court determines whether a municipality has the authority to act, we must apply


         6
            Under the current municipal ordinances of the City, a city court judge may enact rules relating to the
enforcement of collection of fines. Clarksville, Tenn., Official Code of City of Clarksville, Part II, Art. IV, § 4(1). This
authority, however, was not conferred until May 5, 2005. Id. Applying this statute prospectively, this ordinance is
inapplicable in this case. See Nutt v. Cham pion Int'l Corp., 980 S.W .2d 365, 368 (Tenn. 1998) (“Statutes are presumed
to operate prospectively unless the legislature clearly indicates otherwise.” (citing Shell v. State, 893 S.W .2d 416, 419
(Tenn. 1995); Kee v. Shelter Ins. Co., 852 S.W .2d 226, 228 (Tenn. 1993); State v. Defriece, 937 S.W .2d 954, 957 (Tenn.
Ct. App. 1996))). In addition, Appellees note in their brief on appeal that section 40-24-101 of the Tennessee Code is
the applicable statute with regards to the power and authority of a city court to collect fines. This statute, however, is
inapplicable in this situation. Section 40-24-101 of the Tennessee Code is a rule of criminal procedure. The penalties
imposed here are civil, not criminal, penalties.

                                                            -7-
Dillon’s Rule7 to construe the intent of the legislature. See Arnwine v. Union County Bd. of Educ.,
120 S.W.3d 804, 807 (Tenn. 2003). “At its most basic level, Dillon’s Rule is a canon of statutory
construction that calls for the strict and narrow construction of local governmental authority.” Id.
Under this rule, a municipal government may act when

                 (1) the power is granted in the “express words” of the statute, private
                 act, or charter creating the municipal corporation; (2) the power is
                 “necessarily or fairly implied in , or incident to[,] the powers
                 expressly granted”; or (3) the power is one that is neither expressly
                 granted nor fairly implied from the express grants of power, but is
                 otherwise implied as “essential to the declared objects and purposes
                 of the corporation.”

Id. at 807-08.
         In this case, Tennessee law and the City’s code expressly authorize a city court judge to
collect judgments. Incident to a city court judge’s expressly conferred power to collect judgments
is the ability to make rules governing such collection. As such, a city court may not only collect
judgments by may also adopt rules establishing how to attribute payments by municipal offenders
in satisfaction of fines.

        This express and implied authority attributed to city court judges pursuant to Tennessee law
establishes the public policy of Tennessee. Thus, it is not against the public policy of Tennessee to
require the payment of fines in chronological order.

                                        IV. Conclusion
       For the reasons set forth herein, we affirm in part and reverse in part the circuit court’s
decision. We remand for further proceedings consistent with this opinion. Costs of this appeal are
taxed equally to Appellant, the City of Clarksville and its surety, and to Appellees, Marcus Dixon
and Anthony P. Barnett, for which execution may issue if necessary.



                                                             ___________________________________
                                                             ALAN E. HIGHERS, JUDGE




        7
           “The Rule takes its name from John F. Dillon, a Federal Circuit Judge, Chief Justice of the Iowa Supreme
Court, noted law professor and author of Dillon on Municipal Corp.” Chattanooga Area Reg’l Transp. Auth. v. T.U.
Parks Constr. Co., No. O3A01-9712-CH-00524, 1999 Tenn. App. LEXIS 58, at *9 n. 2 (Tenn. Ct. App. Jan. 28, 1999).
This rule was first adopted by the Tennessee Supreme Court in Mayor & City Council of Nashville v. Linck, 80 Tenn.
(12 Lea.) 499 (1883).

                                                       -8-
