                                                                                          10/03/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                August 21, 2018 Session

   JANET THORNTON v. COFFEE COUNTY BOARD OF EDUCATION

                 Appeal from the Chancery Court for Coffee County
                    No. 2017-cv-255 Vanessa Jackson, Judge
                     ___________________________________

                           No. M2018-00300-COA-R9-CV
                       ___________________________________


This interlocutory appeal involves a complaint for damages under the Public Employee
Political Freedom Act. The chancery court transferred the case to circuit court after
determining that only unliquidated damages were “available” under the statute. We
conclude that the complaint failed to allege any liquidated damages. As such, the
chancery court correctly determined that it lacked subject matter jurisdiction to adjudicate
this case. The trial court’s decision to transfer this case to circuit court is therefore
affirmed.

     Tenn. R. App. P 9 Interlocutory Appeal; Judgment of the Chancery Court
                                    Affirmed

J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which BRANDON
O. GIBSON and KENNY ARMSTRONG, JJ., joined.

Terry A. Fann and Kerry E. Knox, Murfreesboro, Tennessee, for the appellant, Janet
Thornton.

Kenneth S. Williams, Cookeville, Tennessee, for the appellee, Coffee County Board of
Education.


                                        OPINION

                                       Background

      This case comes to us as a Rule 9 interlocutory appeal from the Chancery Court of
Coffee County, Tennessee (“trial court”). Plaintiff/Appellant Janet Thornton
(“Appellant”) was employed as the Health Services Director for the Defendant/Appellee
Coffee County Board of Education (“the Board”) for twenty-three years before she was
informed, in April of 2017, that her position would not be renewed for the upcoming
20172018 school year. Appellant, believing that the decision not to renew her position
was in retaliation for discussions she had with certain elected members of the Coffee
County School Board, filed a complaint on August 14, 2017, alleging damages under
Tennessee’s Public Employee Political Freedom Act (“PEPFA”). Appellant alleged that
she suffered embarrassment, humiliation, and lost wages and benefits as a result of losing
her position. Appellant’s complaint expressly demanded a jury.

        The Board responded on September 7, 2017, by filing a motion to dismiss or to
transfer the case to circuit court and to strike the jury demand. Specifically, the Board
alleged that chancery court lacked subject matter jurisdiction to hear Appellant’s case
because her claims involved only unliquidated damages over which the chancery court
does not have subject matter jurisdiction. According to the Board, the case must therefore
be heard in circuit court where the Appellant would have no right to a jury trial. In
response, Appellant asserted that not all of the damages sought were unliquidated and
that the damages available under PEPFA should not be limited to common law
unliquidated damages.

       On November 27, 2017, the trial court entered an order granting the Board’s
motion, determining that “[t]he damages sought by the [Appellant] and available under
PEPFA are unliquidated.” The trial court struck the jury demand from Appellant’s
complaint and ordered that the case be transferred to the Circuit Court for Coffee County.
Appellant then filed a Motion for Interlocutory Appeal on December 22, 2017, which
was unopposed by the Board. An agreed order granting the motion was entered February
12, 2018. This Court subsequently accepted the interlocutory appeal, and the trial court
clerk certified the appellate record on April 11, 2018.

                                    Issues Presented

        In her application for an interlocutory appeal, Appellant framed the issue as
whether a PEPFA action may be filed in chancery or circuit court. In granting the
application, this Court outlined an additional issue as follows: “whether the damages
sought by [Appellant] are damages over which the Chancery Court has jurisdiction under
Tenn. Code Ann. § 16-11-101 et seq.” Because we conclude that the chancery court has
no jurisdiction over the damages sought by Appellant in this case, we affirm the transfer
of this case to circuit court.

                                  Standard of Review

        The trial court granted the Board’s motion to dismiss or transfer upon determining
that it lacked subject matter jurisdiction. The Tennessee Supreme Court has explained
that:
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       Subject matter jurisdiction involves a court’s lawful authority to adjudicate
       a controversy brought before it. See Meighan v. U.S. Sprint Commc’ns
       Co., 924 S.W.2d 632, 639 (Tenn. 1996); Standard Sur. & Cas. Co. v.
       Sloan, 180 Tenn. 220, 173 S.W.2d 436, 440 (1943). Subject matter
       jurisdiction depends on the nature of the cause of action and the relief
       sought, see Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and can
       only be conferred on a court by the constitution or a legislative act. See
       Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Computer Shoppe, Inc.
       v. State, 780 S.W.2d 729, 734 (Tenn. Ct. App. 1989). Where subject matter
       jurisdiction is challenged under Rule 12.02(1), the party asserting that
       subject matter jurisdiction exists . . . has the burden of proof. See Redwing
       v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445
       (Tenn. 2012) (citing Staats v. McKinnon, 206 S.W.3d 532, 543 (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 Inc. Co. v. State, 33 S.W.3d 727,
       729 (Tenn. 2000).

Chapman v. DaVita, Inc., 380 S.W.3d 710, 712713 (Tenn. 2012). Accordingly, we
review the present case de novo on the record with no presumption of correctness. Id.
Likewise, we review the trial court’s interpretation of PEPFA de novo with no
presumption of correctness. In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)
(“Questions of law, including issues of statutory interpretation, are reviewed de novo
with no presumption of correctness.”).

                                        Discussion

        The issue presented in this appeal is narrow and turns on whether the Appellant’s
PEPFA claim was properly brought in chancery court. PEPFA provides that “no public
employee shall be prohibited from communicating with an elected public official for any
job-related purpose whatsoever.” Tenn. Code Ann. § 8-50-602(a). The Act further
provides that “[i]t is unlawful for any public employer to discipline, threaten to discipline
or otherwise discriminate against an employee because such employee exercised that
employee’s right to communicate with an elected public official.” Tenn. Code Ann. § 8-
50-603(a). Regarding damages, PEPFA states only that a “public employee shall be
entitled to treble damages plus reasonable attorney fees” if a court “of competent
jurisdiction determines that a public employer has disciplined, threatened to discipline or
otherwise discriminated against an employee because such an employee exercised the
rights provided” by PEPFA. Tenn. Code Ann. § 8-50-603(b). Thus, the plain language of
PEPFA provides no significant guidance as to the type of damages available in a PEPFA
claim.


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       Likewise, the act does not mandate that PEPFA claims be brought in a certain
court but rather requires that the claim be brought in a “court of competent jurisdiction.”
Tenn. Code Ann. § 8-50-603(b). In Tennessee, circuit courts and chancery courts exercise
concurrent jurisdiction over most civil cases:

        The chancery court has concurrent jurisdiction, with the circuit court, of all
        civil causes of action, triable in the circuit court, except for unliquidated
        damages for injuries to person or character, and except for unliquidated
        damages for injuries to property not resulting from a breach of oral or
        written contract; and no demurrer for want of jurisdiction of the cause of
        action shall be sustained in the chancery court, except in the cases excepted.

Tenn. Code Ann. § 16-11-102. Thus, section 16-11-102 provides narrow exceptions to
the concurrent jurisdiction of circuit and chancery court, one of them being that claims
for unliquidated damages to person or character must be filed in the circuit court.

        Based on this statute, both Appellant and the Board admit that if the damages
sought are solely unliquidated, the case must be transferred to circuit court. Id.
Alternatively, if any portion of Appellant’s claimed damages qualify as liquidated, the
chancery court may exercise jurisdiction, and the Appellant would be entitled to a jury
trial.1 See Tenn. Code Ann. § 21-1-103; see also Pruitt v. Talentino, 464 S.W.2d 294,
296 (Tenn. Ct. App. 1970) (“[W]here the chancery court has obtained jurisdiction over
some portion or feature of a controversy it may grant full relief in the same manner as
could a court of law.”). We therefore turn to address whether Appellant has in fact raised
a proper claim for liquidated damages in this case.

        A. Damages pursuant to PEPFA

       The order granting the Rule 9 application makes clear that there are two distinct
issues underlying the trial court’s decision with regard to liquidated damages. First, as the
parties have argued, whether PEPFA allows a claim for liquidated damages, or whether,
as the Board argues, a claim for liquidated damages does not lie under PEPFA. Second,
whether Appellant has actually pleaded a claim for liquidated damages in this case. Both
questions must be answered in the affirmative in order to vest jurisdiction with the
chancery court in this case. Yet, the parties, particularly Appellant, chose to focus their
written arguments to this Court solely on whether PEPFA allows for liquidated damages.2

        1
           It is undisputed by the parties that should this case remain in the chancery court, Appellant is
entitled to a jury trial, whereas there is no right to a jury trial in circuit court. See Young v. City of
LaFollette, 479 S.W.3d 785, 79495 (Tenn. 2015) (concluding that there was no right to a jury trial for
plaintiff’s Tennessee Public Protection Act claim, as there was no right to a jury trial at common law for
such a claim and there is no statutory right to a jury trial in circuit court). This important distinction
seems to be the motivation behind this interlocutory appeal.
         2
            The Board appeared to concede at oral argument, however, that a PEPFA claim could
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Indeed, Appellant’s brief contains little, if any, analysis as to whether the damages she
sought in this case qualify as liquidated damages. Because we conclude that Appellant’s
complaint fails to sufficiently allege any claim for liquidated damages, we hold that the
chancery court lacked jurisdiction over Appellant’s claim without reaching the question
of whether a claim for liquidated damages lies under PEPFA. See generally Doe v. Mama
Taori’s Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at
*10 (Tenn. Ct. App. Apr. 5, 2001) (citing Super Flea Mkt. v. Olsen, 677 S.W.2d 449,
451 (Tenn. 1984)) (“Judicial economy prompts us to avoid rendering advisory opinions
or deciding abstract legal questions.”). Thus, regardless of whether PEPFA authorizes a
claim for liquidated damages, the narrow issue presented by this appeal can be decided
by simple examination of the damages sought by Appellant.

        B. Appellant’s Damages

       There is little Tennessee case law clarifying the difference between liquidated and
unliquidated damages. Indeed, this Court has previously noted that “whether [an] amount
involved qualifies as ‘liquidated’ is not always clear[.]” PNC Multifamily Capital Inst.
Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 55758 (Tenn.
Ct. App. 2012) (quoting 22 Am. Jur.2d Damages § 465 (2012)).3 In PNC, however, this
Court provided a framework for classifying damages as liquidated or unliquidated:

               Unliquidated damages are those damages that have not been
        previously specified or contractually provided for. . . . in general,
        “liquidated” means “made certain or fixed by agreement of the parties or by
        operation of law.” On the other hand, “unliquidated damages” are
        damages that have not been determined or calculated, or not yet
        reduced to a certainty in respect to amount.
               It has been held that a bona fide dispute as to the amount of a claim
        is not a bar to the recovery of interest under this rule, but it has also been
        held that such a dispute does bar recovery of interest as of right.
               A liquidated claim exists if the plaintiff has made a demand for a
        specific sum that the defendant allegedly unlawfully retained, because such
        a claim is certain and known to the defendant before the suit is filed. A
        claim that was for a fixed amount that had become due and payable on a set
        date is also liquidated, even though the verdict for the plaintiff turns out to
        be less than the figure demanded, as this fact does not necessarily convert a
        claim for an otherwise liquidated amount into a claim for an uncertain and
        therefore unliquidated amount.


potentially entail liquidated damages under circumstances not at issue in this case. In any event, we do not
reach this issue.
        3
           The stated law concerning liquidated damages is currently to be found at 22 Am. Jur. 2d
Damages § 479, last updated in 2018.
                                                   -5-
Id. at 557558 (quoting 22 Am. Jur.2d Damages § 465) (emphasis added).

        As we interpret the language of PNC, in order to qualify as liquidated, the
requested damages must involve a specified sum or be ascertainable or calculable from
the pleadings. See Grace v. Curley, 3 Tenn. App. 1 (Tenn. Ct. App. 1926) (noting that
liquidated damages are “ascertainable by simple calculation from the papers,” whereas
an unliquidated amount “must be ascertained by a jury upon proof.”) (emphasis added).
Thus, “[d]amages may be referred to as unliquidated when the complaint alleges only
general damages without demanding a specific amount.” 22 Am. Jur.2d Damages § 3;
see also 22 Am. Jur.2d Damages § 504 (“Damages are ‘liquidated’ when the proper
amount to be awarded can be determined with exactness from the cause of action as
pleaded[.]”) (emphasis added). Our research reveals that this interpretation is consistent
with that of other jurisdictions. See Miami Beverly LLC v. City of Miami, 225 So.3d 989,
992 (Fla. Dist. Ct. App. 2017) (“Damages are liquidated when the proper amount to be
awarded can be determined with exactness from the cause of action as pleaded, i.e., from
a pleaded agreement between the parties, by an arithmetical calculation or by application
of definite rules of law . . . [d]amages are not liquidated if testimony is required to
determine how to evaluate the damages.”); see also Colonial Bank v. Boulder Bankcard
Processing Inc., 563 S.E.2d 492, 498 (Ga. Ct. App. 2002) (“Damages
are liquidated when they are an amount certain and fixed, either by the act and agreement
of the parties, or by operation of law; a sum which cannot be changed by the proof; it is
so much or nothing. . . . undisputed evidence of the amount of damages . . . does not
convert unliquidated damages to liquidated damages.”); Hall v. Rowe, 439 S.W.3d 183,
188 (Ky. Ct. App. 2014) (“Liquidated claims are of such a nature that the amount
is capable of ascertainment by mere computation, can be established with reasonable
certainty, can be ascertained in accordance with fixed rules of evidence and known
standards of value, or can be determined by reference to well-established market
values.”); Smith v. E.S. Wagner Co., 74 N.E.3d 963, 974 (Ohio Ct. App. 2016)
(“A liquidated claim is one that can be determined with exactness from the agreement
between the parties or by arithmetical process or by the application of definite rules of
law.”).

        As a reminder, it is well-settled that Appellant has the burden to establish
jurisdiction in this case by showing that the damages she seeks are damages over which
the chancery court has jurisdiction. See Redwing v. Catholic Bishop for the Diocese of
Memphis, 363 S.W.3d 436, 445 (Tenn. 2012). From our review of Appellant’s complaint
and her brief to this Court, however, we simply cannot conclude that Appellant has
sufficiently alleged liquidated damages so as to invoke the subject matter jurisdiction of
the chancery court. As an initial matter, we again note that despite this Court’s clear
direction to brief the issue of whether “the damages sought by” Appellant are of the kind
that invoke the chancery court’s jurisdiction under Tenn. Code Ann. section 16-11-102,
Appellant has chosen not to brief this issue. “It is not the role of the courts, trial or
                                            -6-
appellate, to research or construct a litigant’s case or arguments for him or her, and where
a party fails to develop an argument in support of his or her contention or merely
constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility
of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010).

       Nonetheless, we have reviewed Appellant’s complaint and conclude that it does
not sufficiently raise a claim for liquidated damages. First, there is no dispute that
Appellant’s alleged damages as a result of embarrassment and humiliation do not
constitute liquidated damages. See Hodge v. Craig, No. M2009-00930-COA-R3-CV,
2010 WL 4024990, at *9 (Tenn. Ct. App. Oct. 13, 2010), aff’d in part, rev’d in part on
other grounds, 382 S.W.3d 325 (Tenn. 2012) (stating that “damages for emotional
distress . . . are classified as unliquidated damages”); see also 23 Cal. Jur. 3d Damages
§ 124 (“Damages for the intangible, noneconomic aspects of mental and emotional injury
are inherently nonpecuniary, unliquidated, and not readily subject to precise
calculation[.]”). Rather, the only dispute involves whether Appellant’s claim for backpay
and benefits qualifies as liquidated damages.

        Respectfully, Appellant’s damages demand does not involve a specified sum, as
was involved in PNC. See PNC, 387 S.W.3d at 558 (concluding that damages were not
unliquidated where “the exact amount of the alleged misappropriation (i.e., $347,265.67)
is averred in this case”). Neither may we conclude that the amount of damages sought is
ascertainable by simple calculation from the material contained in the pleadings. On the
contrary, the complaint contains a single sentence alleging the damages Appellant
suffered as a result of the termination of her employment: “Defendant’s conduct caused
embarrassment, humiliation, and economic damage in the form of lost wages and
benefits.” While this Court recognizes, and the Board admits, that lost wages and benefits
have the potential to be liquidated damages in certain circumstances, nothing provided by
the Appellant establishes her lost wages and benefits to a reasonable certainty. See PNC,
387 S.W.3d at 558 (“[U]nliquidated damages are damages that have not been determined
or calculated, or not yet reduced to a certainty in respect to amount.”).

       Even under the most liberal reading of PNC, Appellant’s complaint is devoid of
any information that might render Appellant’s damages liquidated. Had the Appellant
enlightened us, for example, as to the amount of salary she received in her former
position, or the amount of time for which she seeks lost wages, ascertaining a specified
sum would perhaps be less tenuous. While case law supports the notion that liquidated
damages are those that can be calculated based upon information in the pleadings, there is
simply nothing for us to calculate or compute here. See Miami Beverly LLC, 225 So.3d
at 992. Moreover, Appellant easily could have amended the complaint in order to
properly specify her liquidated damages. As the complaint stands, however, any
ascertainment of the Appellant’s damages would be blind conjecture by this Court.


                                           -7-
        In light of the explication of liquidated and unliquidated damages in PNC, as well
as case law from surrounding states, we cannot conclude that the Appellant has pleaded a
claim for liquidated damages such that the chancery court can exercise subject matter
jurisdiction in this case. That being said, this Opinion should not be understood to mean
that lost wages and benefits are, categorically, unliquidated damages. Rather, we simply
conclude that under the particular facts of this case, the Appellant has not provided
sufficient information to render her request for backpay and benefits liquidated. Because
the Appellant has brought a claim only for unliquidated damages to person or character,
chancery court lacked jurisdiction over this matter. Tenn. Code Ann. § 16-11-102.

        Accordingly, we conclude that the trial court correctly determined that this case
should be transferred to the Circuit Court for Coffee County. Although we decline to
reach a conclusion on the full scope of damages available under PEPFA, “[i]t is well
settled that this Court will affirm the Order of the trial court[ ] . . . if it finds that the trial
court reached the correct result, ‘irrespective of the reasons stated.’” Shoemake v.
Omniquip Intern, Inc., 152 S.W.3d 567, 577 (Tenn. Ct. App. 2003) (quoting Clark v.
Metropolitan Gov’t of Nashville and Davidson Cty., 827 S.W.2d 312, 317 (Tenn. Ct.
App. 1991)). Because we have determined that Appellant sought only unliquidated
damages in her complaint, the trial court reached the correct result.

                                           Conclusion

      The judgment of the Chancery Court of Coffee County is affirmed, and the case is
remanded to the trial court with instructions to transfer this action to the Circuit Court of
Coffee County. Costs of this appeal shall be taxed to the Appellant, Janet Thornton, for
which execution may issue if necessary.



                                                     _________________________________
                                                     J. STEVEN STAFFORD, JUDGE




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