                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




                                  DISSENTING OPINION




ALAN E. HIGHERS, P.J., W.S., DISSENTING


Here we have yet another case from Shelby County involving the bond requirements for an
appeal from general sessions court to circuit court. This Court squarely addressed this issue
in University Partners Development v. Bliss, No. M2008-00020-COA-R3-CV, 2009 WL
112571 (Tenn. Ct. App. W.S. Jan. 14, 2009), a memorandum opinion, and we addressed it
again in Jacob v. Partee, 389 S.W.3d 339 (Tenn. Ct. App. Aug. 10, 2012). Tennessee Code
Annotated section 27-5-103 provides that “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.” In both Jacob and University Partners, we held that the statute is unambiguous,
and that an appellant who seeks to appeal from general sessions court to circuit court cannot
satisfy the bond requirements of the statute by merely remitting payment of an initial filing
fee. Payment of the initial filing fee, we explained, simply does not constitute giving “bond
with good security” for “the cost of the cause on appeal.” See Tenn. Code Ann. § 27-5-103.
The Supreme Court denied permission to appeal in both Jacob and University Partners. An
opinion from the Office of the Attorney General reached the same result. See Tenn. Op.
Atty. Gen. No. 12-23 (Feb. 23, 2012).

In Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013
WL 593911 (Tenn. Ct. App. Feb. 15, 2013), a different panel of this Court reached an
opposite conclusion, although two judges wrote separate concurring opinions. The
Bernatsky Court held that the statute was ambiguous, and therefore, that it was necessary to
look to legislative history in order to interpret the meaning of the statute. Judge Stafford
wrote separately because he disagreed with the majority regarding which language of section
27-5-103 was ambiguous. The Bernatsky Court purportedly overruled Jacob and University
Partners, just two months after the Tennessee Supreme Court had denied permission to
appeal in Jacob. The losing party in Bernatsky did not seek permission to appeal to the
Supreme Court.

Since Bernatsky was filed, this Court has heard six other cases involving the same issue, and
the majority has followed Bernatsky, without much discussion, in each of those. See Fields
v. Williams, No. W2012-01949-COA-R3-CV, 2013 WL 1845450 (Tenn. Ct. App. Apr. 30,
2013) no perm. app. filed; Moore v. Correct Care Solutions, LLC, No. W2012-01387-COA-
R3-CV, 2013 WL 1190821 (Tenn. Ct. App. Mar. 25, 2013) no perm. app. filed; West v.
AMISUB (SFH), Inc., No. W2012-00069-COA-R3-CV, 2013 WL 1183074 (Tenn. Ct. App.
Mar. 21, 2013) no perm. app. filed; Brown v. Shtaya, No. W2012-00875-COA-R3-CV, 2013
WL 836949 (Tenn. Ct. App. Mar. 6, 2013) no perm. app. filed; Andrews v. Clemmer, No.
W2012-00986-COA-R3-CV, 2013 WL 776073 (Tenn. Ct. App. Feb. 28, 2013) no perm. app.
filed; Meacham v. Starnes, No. W2012-00192-COA-R3-CV, 2013 WL 760979 (Tenn. Ct.
App. Feb. 27, 2013) no perm. app. filed. I filed dissenting opinions in West, Brown, and
Andrews. Surprisingly, none of the litigants involved in these cases has attempted to appeal
to the Tennessee Supreme Court.

Today, we have resolved yet another case involving this same issue, and the majority has
again followed Bernatsky. All in all, this is our tenth case on this issue, and there are more
cases of this same nature making their way through the initial stages of the appellate process.
See, e.g., Barnes v. Hamm, No. W2011-02288-COA-R3-CV and Bevels v. Tubbs, No.
W2012-02375-COA-R3-CV. Not surprisingly, in these cases, litigants are citing language
from Jacob and University Partners, from the majority opinion in Bernatsky, from Judge
Stafford’s separate concurrence in Bernatsky, and from my dissenting opinions in subsequent
cases.

I write separately today because I continue to agree with this Court’s holding in Jacob and
in University Partners, namely, that the statutory requirement of giving “bond with good
security” for “the cost of the cause on appeal” is not satisfied by paying an initial filing fee.
I find the statute unambiguous, and therefore, there is no need to attempt to discern
legislative intent based upon the less than compelling legislative history of various statutory
schemes relied upon by the majority in Bernatsky.




                                               -2-
In any event, however, I encourage the Tennessee Supreme Court to consider this issue in
order to definitively resolve the matter and to give clarity and guidance to all involved in
these cases.




                                                  ALAN E. HIGHERS, P.J. W.S.




                                            -3-
