                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                     February 10, 2016 Session

        JUDITH MOORE-PENNOYER v. STATE OF TENNESSEE, ET AL.

                       Appeal from the Circuit Court for Knox County
                  No. 356514    Hon. Jon Kerry Blackwood, Special Judge1


                  No. E2015-01701-COA-R9-CV-FILED-MARCH 21, 2016


This is a Rule 9 interlocutory appeal for a determination as to whether a person who has
prevailed in a judicial election, but not yet assumed the office of judge, acts as a “state
officer or employee” for purposes of the waiver provision set forth in Tennessee Code
Annotated section 9-8-307(b), when making administrative staffing provisions. The
plaintiff filed this action alleging tortious interference with an employment relationship
by the defendant, a newly elected circuit court judge. The defendant filed a motion to
dismiss, alleging that he was entitled to immunity based upon his position as a state
officer. Following a hearing, the trial court found that the defendant did not enjoy any
form of immunity and that the waiver provision did not apply because he was not yet a
state officer or employee when the actions at issue took place before he took the oath of
office and assumed his position. The court denied the motion to dismiss but granted
permission to file an interlocutory appeal pursuant to Rule 9. We granted permission to
appeal and now affirm the decision of the trial court.

    Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Circuit
                           Court Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, J., joined.

Herbert H. Slatery, III, Attorney General & Reporter, Andree S. Blumstein, Solicitor
General, and Michael Markham, Senior Counsel, Nashville, Tennessee, for the appellant,
the Honorable William T. Ailor.

Rick A. Owens and David H. Dunaway, LaFollette, Tennessee, for the appellee, Judith
Moore-Pennoyer.


1
    Sitting by Supreme Court designation.
                                              OPINION

                                        I.      BACKGROUND

       Prior to the actions at issue in this appeal, Judith Moore-Pennoyer (“Plaintiff”)
was employed as a judicial assistant in the Circuit Court for Knox County in the State of
Tennessee (“the State”). Plaintiff served as the administrative assistant for the Honorable
Harold Wimberly. On August 7, 2014, William T. Ailor defeated Judge Wimberly in the
general election. Approximately one week before the induction ceremony, Judge Ailor
informed Plaintiff that her services as an administrative assistant were no longer needed.
The next day, on August 27, 2014, the human resources manager for the Administrative
Office of the Courts provided Plaintiff with a separation notice, confirming that
Plaintiff’s employment had been terminated, effective on August 29, 2014.

       On August 29, 2014, Plaintiff filed suit against the State and Judge Ailor, as an
individual (collectively “Defendants”). Plaintiff later filed an amended complaint. As
pertinent to this appeal, she sought recovery against Judge Ailor for tortious interference
with her employment relationship with the State. While Tennessee follows the “at-will”
employment doctrine, “intentional interference with at-will employment by a third party,
without privilege or justification, is actionable.” Forrester v. Stockstill, 869 S.W.2d 328,
330 (Tenn. 1994). Such claims require the participation of three parties, the employer,
the employee, and an unrelated third-party. Thompson v. Memphis Light, Gas and Water,
416 S.W. 3d 402, 413 (Tenn. Ct. App. 2011). Here, Plaintiff alleged that Judge Ailor, as
an unrelated third-party, unlawfully interfered with her employment with the State.

        Defendants responded by filing a motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim upon which relief could be granted. As pertinent
to this appeal, Defendants alleged that Judge Ailor was entitled to absolute immunity as a
state officer or employee pursuant to Tennessee Code Annotated section 9-8-307(a)(h).2
They opined that Judge Ailor had been duly elected and was acting within the scope of
his employment when he terminated Plaintiff’s employment and that jurisdiction over
such issues lies with the Tennessee Claims Commission (“the Claims Commission”).
They also claimed that Plaintiff could not establish her claim for tortious interference
with an employment relationship because she was employed by an individual judge, not
the State.


2
  “State officers and employees are absolutely immune from liability for acts or omissions within the
scope of the officer’s or employee’s office or employment, except for willful, malicious, or criminal acts
or omissions or for acts or omissions done for personal gain. For purposes of this chapter, “state officer”
or “employee” has the meaning set forth in § 8-42-101(3).”

                                                   -2-
       On November 21, 2014, Plaintiff filed suit against the State in the Claims
Commission. Thereafter, Defendants filed a new motion to dismiss in the circuit court,
alleging that dismissal was appropriate based upon the additional ground of waiver
pursuant to Tennessee Code Annotated section 9-8-307(b), which provides as follows:

       Claims against the state [based on the acts or omissions of state employees]
       shall operate as a waiver of any cause of action, based on the same act or
       omission, which the claimant has against any state officer or employee.
       The waiver is void if the commission determines that the act or omission
       was not within the scope of the officer’s or employee’s office or
       employment.

They asserted that Plaintiff waived her right to pursue a cause of action against either
defendant in the circuit court by filing a claim in the Claims Commission.

       The trial court granted the motions to dismiss as to the claims filed against the
State. However, the court denied the motions as to the claims filed against Judge Ailor in
his individual capacity. In so holding, the court found that Judge Ailor did not enjoy any
form of immuity and that the waiver provision did not apply. The court explained that
Judge Ailor was not yet a state officer or employee because he had not taken the oath of
office at the time of Plaintiff’s discharge. Judge Ailor and Plaintiff sought permission to
seek an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure. The trial court granted the requests, and the parties filed the requisite
applications with this court. This court granted Judge Ailor’s Rule 9 application but
denied Plaintiff’s application.

                                        II.     ISSUE

       Unlike an appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure, “in which both the appellant and the appellee have broad latitude
with regard to the issues that may be raised,” the questions we may address are limited to
“those matters clearly embraced within” the issues certified by the trial court. Sneed v.
The City of Red Bank, Tennessee, 459 S.W.3d 17 (Tenn. 2014) (internal citations
omitted). We have restated the issue identified by the trial court in its order as follows:

       [W]hether a person who has prevailed in a judicial election, but not yet
       assumed the office of judge, acts as a “state officer or employee” for
       purposes of the waiver provision set forth in Tennessee Code Annotated
       section 9-8-307(b), when making administrative staffing provisions.



                                              -3-
                             III.   STANDARD OF REVIEW

       The trial court’s grant or denial of a motion to dismiss a case based on lack of
subject matter jurisdiction or for failure to state a claim is a conclusion of law. Blackburn
v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Button v. Waite, 208 S.W.3d 366, 369
(Tenn. 2006) (citing State v. Cawood, 134 S.W.3d 159, 163 (Tenn. 2004)). The trial
court’s conclusions of law are subject to a de novo review with no presumption of
correctness. Blackburn, 270 S.W.3d at 47; Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).

                                    IV.    DISCUSSION

      As previously stated, Tennessee Code Annotated section 9-8-307(b) provides as
follows:

       Claims against the state [based on the acts or omissions of state employees]
       shall operate as a waiver of any cause of action, based on the same act or
       omission, which the claimant has against any state officer or employee.
       The waiver is void if the commission determines that the act or omission
       was not within the scope of the officer’s or employee’s office or
       employment.

Judge Ailor asserts that the complaint must be dismissed because his position as a duly
elected circuit court judge permitted him to make administrative staffing decisions in
anticipation of assuming office as a state officer or employee. He posits that it is the
election, not the induction ceremony that bestows upon the elected individual the rights to
the office that he or she will assume. Plaintiff responds that Judge Ailor was not a state
officer or employee when the actions at issue took place because he had not yet assumed
his position as circuit court judge by taking the oath of office.

       Tennessee Code Annotated section 8-42-101(3)(A) defines a state employee, in
pertinent part, as follows:

       “State employee” means any person who is a state official, including
       members of the general assembly and legislative officials elected by the
       general assembly, or any person who is employed in the service of and
       whose compensation is payable by the state, or any person who is
       employed by the state whose compensation is paid in whole or in part from
       federal funds, but does not include any person employed on a contractual or
       percentage basis.

                                            -4-
Circuit court judges are state officials within the meaning of section 8-42-101(3)(A).

       The Tennessee Constitution governs the election of circuit court judges. The
Constitution provides that elections for circuit court judges shall be held “on the first
Thursday in August next preceding the expiration of their respective terms of service.”
Tenn. Const. art. VII, § 5. Once elected and qualified, a circuit court judge serves an
eight-year term. Tenn. Const. art. VI, § 4. The term is “computed from the first day of
September next succeeding his [or her] election” and does not expire until a successor is
“elected or appointed, and qualified.” Tenn. Const. art. VII, § 5 (emphasis added).
Additionally, a duly elected or appointed circuit court judge may not enter upon the
duties of the office before “tak[ing] an oath to support the Constitution of this State, and
of the United States, and an oath of office.” Tenn. Const. art. X, § 1.3

       Judge Ailor cites the Supreme Court’s decision in Farmers & Merchants Bank v.
Chester, 25 Tenn. 458 (1846) for the proposition that it is the appointment or election that
bestows upon the individual the rights to the office that he or she will assume. In
Farmers, the Court considered whether a deputy clerk was authorized to take probate or
acknowledge deeds of trust even though he had not taken the oath of office. 25 Tenn.
458, at *479-80. The statute at issue provided that such clerks must be “legally
appointed” to gain the requisite authorization. Id. at 480. In upholding the clerk’s
actions, the Court provided as follows:

          The appointment and the qualification to an office are distinct and separate
          things, both of which (when a qualification is required) are necessary to
          constitute an officer de jure. A man is legally appointed to an office when
          his appointment has been made by the appointing power. Thus, in this
          State, a judge is legally appointed when he has been duly elected by the
          Legislature, but he is not legally qualified till he has taken the oaths
          prescribed; so it is of all other officers; the appointment is a distinct and
          separate thing from the qualification. Indeed, this is necessarily so for the
          oaths of qualification can only be administered to those who have been
          legally appointed. For, if the appointment be illegal, the administration of
          the oaths of office would be a nullity. Then the question arises, Was James

3
    Likewise, Tennessee Code Annotated section 17-1-104 provides:

          Before entering upon the duties of office, every judge and chancellor in this state is
          required to take an oath or affirmation to support the constitutions of the United States
          and that of this state, and to administer justice without respect of persons, and impartially
          to discharge all the duties incumbent on a judge or chancellor, to the best of the judge’s
          or chancellor’s skill and ability. The oath shall be administered in accordance with title 8
          or any other applicable law.
                                                       -5-
       Rose, at the date of the probate of this deed in controversy, a legally
       appointed deputy of the clerk of the county court of Shelby county? We
       think he was. A written authority, with full power constituting him such,
       had been executed and delivered by John W. Fuller, the principal clerk,
       who was the appointing power; but he was not a legally qualified deputy,
       for want of the administration of the oaths of office and qualification
       required by the act of 1794. Being the legally appointed deputy, he had the
       authority to take the probate of the deed, and the same is a valid probate.

Id. at 480-81.

        The facts presented in this case are distinguishable from the facts presented in
Farmers. The Constitution provides that Judge Wimberly’s term was not subject to
expiration until his successor was elected and qualified. Further, Judge Ailor’s term
could not begin until September 1, 2014, unless otherwise specifically provided by the
legislature. Judge Ailor was duly elected on August 7, 2014; however, he was not
qualified until he took the oath of office. Pursuant to the Constitution, he was also not
permitted to enter upon the duties of the office before taking the oath of office. Contrary
to Judge Ailor’s assertion, the duties of the office necessarily include making
administrative staffing decisions. With these considerations in mind, we hold that Judge
Ailor did not possess the requisite authority to terminate Plaintiff’s employment and was
not acting as a state officer or employee for purposes of the waiver provision set forth in
Tennessee Code Annotated section 9-8-307(b). We affirm the trial court’s denial of
Judge Ailor’s motion to dismiss.

                                   V.     CONCLUSION

       We affirm the trial court’s denial of the motion to dismiss and remand this matter
to the trial court for further proceedings. Costs of the appeal are taxed to the appellant,
William T. Ailor.


                                                 _________________________________
                                                 JOHN W. McCLARTY, JUDGE




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