                                                                                         02/20/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               January 17, 2019 Session

          CITY OF MCMINNVILLE v. STEVEN ERICH HUBBARD

                  Appeal from the Circuit Court for Warren County
                   No. 2017-CV-768 Larry B. Stanley, Jr., Judge
                      ___________________________________

                           No. M2018-00223-CCA-R3-CO
                       ___________________________________


Defendant, Steven Erich Hubbard, appeals from his conviction for failure to obey a stop
sign in violation of a municipal ordinance. Because such appeals are considered civil in
nature, we are without subject matter jurisdiction to hear this appeal. Therefore, pursuant
to Tennessee Rule of Appellate Procedure 17, we transfer the case to the Tennessee Court
of Appeals for further adjudication.

Tenn. R. App. P. 3 Appeal as of Right; Case Transferred to the Tennessee Court of
                                     Appeals

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael J. Rocco, Sparta, Tennessee (on appeal), and Steven Erich Hubbard,
McMinnville, Tennessee, Pro Se (at trial), for the appellant, Steven Erich Hubbard.

Daniel H. Rader IV, Cookeville, Tennessee, for the appellee, City of McMinnville.


                                       OPINION

                                   Procedural History

       On July 28, 2017, Defendant ran a stop sign at the intersection of Old Smithville
Road and Bybee Branch Road and was issued a citation by McMinnville City Police
Officer Mark Mara. On the citation, the box for “STOP SIGN” is checked in the section
for designating the violation, but the boxes labeled “T.C.A.” and “ORDINANCE” are
both blank. The citation commands Defendant to appear in the Municipal Court of
McMinnville (“City Court”) on August 21, 2017.1

       Prior to his court date, Defendant filed a federal lawsuit against Officer Mara and
the City of McMinnville, sent an email requesting that the City Court judge recuse
himself because he was “controlled” by the mayor and police chief, and left a letter
requesting a continuance in the City Court drop box over the weekend prior to his
Monday court date.2 Defendant failed to appear in City Court on August 21, 2017. The
City Court judge filed an order on August 28, 2017, denying Defendant’s motions to
recuse and for a continuance, finding Defendant guilty of “failure to adhere to a stop
sign” in violation of Municipal Ordinance 15-117, and assessing a fine of $50 and court
costs.

        On August 22, 2017, Defendant filed a notice of appeal to the Circuit Court for
Warren County (“Circuit Court”). Both the case style and the heading of the notice
included a request for a jury trial. On September 12, 2017, the Circuit Court conducted a
de novo bench trial. Defendant, who was present and acting pro se, did not object or ever
mention his previous request for a jury trial and participated in the bench trial by cross-
examining the sole witness, Officer Mara. Officer Mara testified that Defendant did not
come to a complete stop before turning right from Bybee Branch Road onto Old
Smithville Road.3 During his cross-examination of the officer, Defendant noted that the
traffic citation did not contain a “citation to whatever statute it goes to.” At the
conclusion of the bench trial, the Circuit Court found that “it’s clear that there was a
violation of the stop sign ordinance there” and imposed a $50 fine and court costs. On
September 26, 2017, the Circuit Court filed a written judgment order4 finding that “the
offense is properly designated in the citation” and that it was “clear that the citation is for
violating the City ordinance requiring drivers to adhere to the stop signs.”

      On September 15, 2017, Defendant filed a Motion for New Trial pursuant to
Tennessee Rule of Civil Procedure 59.07, asserting that the Circuit Court erred by failing

        1
          The citation also has boxes that can be checked to command the cited individual to appear in
Juvenile Court or General Sessions Court of Warren County.
        2
          This information is gleaned from the City Court’s order filed on August 28, 2017. None of
these documents, or any other pleadings referred to in Defendant’s appellate brief, are contained in the
record on appeal.
        3
          The video from Officer Mara’s vehicle was entered as an exhibit at the bench trial but was not
included in the record on appeal.
        4
            The certificate of service indicated that the order was served upon Defendant on September 13,
2017.
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to conduct a jury trial. On the same day, Defendant also filed a Motion to Alter and/or
Amend Judgment pursuant to Tennessee Rule of Civil Procedure 59.04, asserting that the
Circuit Court should “find[] the Defendant . . . not guilty of Municipal Ordinance 15-
117” because the citation was unconstitutionally vague for failing to indicate whether
Defendant was being cited for a violation of state statute or municipal ordinance.5 Rather
than a file stamp, the Motion to Alter and/or Amend Judgment has a handwritten notation
that it is a “Duplicate Filing.” Both motions include a “NOTICE OF HEARING” on the
first page where Defendant himself set the matter for a hearing on October 10, 2017, at
9:00 a.m.

       Defendant failed to appear for the hearing he set on October 10, 2017. On
November 15, 2017, the Circuit Court filed an Order on Motion to Alter and/or Amend.
The Circuit Court found that Defendant “has waived his claims set forth in the Motion”
and that “its original Judgment entered in this cause is proper and correct in all respects.”
Though the order states that Defendant’s Motion to Alter and/or Amend was denied, it
does not specifically mention Defendant’s Motion for New Trial.

       On February 6, 2018, Defendant filed a Motion for Relief of Judgment pursuant to
Tennessee Rule of Civil Procedure 60.02. In this motion, Defendant indicated that he did
not appear to argue his post-trial motions because he believed that this case was subject
to a stay related to his bankruptcy proceedings, that he did not receive a copy of the
proposed order finding him guilty of failure to obey a traffic signal until December 2017,
and that he did not believe that the “traffic civil misdemeanor” would be reported to the
Tennessee Department of Safety. Defendant subsequently withdrew this motion as moot
due to the filing of his Notice of Appeal.

       On February 8, 2018, Defendant filed a Notice of Appeal to this Court and
requested the appointment of counsel. On remand from this Court, the Circuit Court
appointed counsel to represent Defendant on appeal. On February 16, 2018, the City of
McMinnville filed a motion to dismiss the appeal as untimely. After several responsive
pleadings filed by each party, this Court ultimately determined that the motion to dismiss
should be “denied at this time” so that the matter could be fully briefed and reviewed by a
full panel of this Court.
        5
           The Motion to Alter and/or Amend Judgment is not contained in the record on appeal, but a
copy is attached as an exhibit to the City of McMinnville’s appellate brief. Typically, documents that are
merely attached to appellate briefs cannot be considered by this Court because they are not properly part
of the certified record. See Jeffrey Lynn Myers v. State, No. M2004-02411-CCA-MR3-PC, 2005 WL
1541870, at *5 n.7 (Tenn. Crim. App. June 29, 2005) (citing State v. Matthews, 805 S.W.2d 776, 783-84
(Tenn. Crim. App. 1990)), no perm. app. filed. Because we need not consider the substance of this
motion in our resolution of this appeal, we merely refer to it as part of the procedural history of the case.
We also note that the copy of the motion attached to the City of McMinnville’s brief includes a
certification from the Warren County Circuit Court Clerk that it is a true and correct copy of the original.
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                                                  Analysis

        On appeal, Defendant’s primary arguments are that the traffic citation was
unconstitutionally vague for failing to indicate whether he was charged with violating a
state statute or municipal ordinance and that the Circuit Court violated his right to a jury
trial. Before we can reach the substance of those issues, we must first determine whether
this Court has jurisdiction to hear this case. See Tenn. R. App. P. 13(b) (“The appellate
court shall also consider whether the trial and appellate court have jurisdiction over the
subject matter, whether or not presented for review[.]”). The City of McMinnville argues
that this Court lacks jurisdiction both because violations of municipal ordinances are
considered civil for the purposes of procedure and appeal and because the Notice of
Appeal was untimely under Tennessee Rule of Appellate Procedure 4(a).6 Defendant
argues that jurisdiction properly lies with this Court because of the vagueness of the
underlying traffic citation. Rather than presenting an argument that the timeliness of his
Notice of Appeal should be waived in the interests of justice, Defendant argues that his
Notice of Appeal is actually premature because the Circuit Court’s Order failed to
address his Motion for New Trial and, therefore, is not a final order. See Tenn. R. App.
P. 4(d).

         “The concept of subject matter jurisdiction involves a court’s lawful authority to
adjudicate a controversy brought before it.” Northland Ins. Co. v. State, 33 S.W.3d 727,
729 (Tenn. 2000) (citations omitted). Subject matter jurisdiction can only be conferred
on a court by legislative or constitutional act. State v. Yoreck, 133 S.W.3d 606, 612
(Tenn. 2004). Whether a court possesses subject matter jurisdiction over a controversy
depends on “(1) the nature or gravamen of the cause of action, (2) the nature of the relief
being sought, and (3) the constitutional or statutory provisions relied upon by the
plaintiff.” In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012). “The parties cannot
confer subject matter jurisdiction on a trial or appellate court by appearance, plea,
consent, silence, or waiver.” Id. Subject matter jurisdiction “cannot be waived, because
it is the basis for the court’s authority to act.” Meighan v. U.S. Sprint Commc’ns Co., 924
S.W.2d 632, 639 (Tenn. 1996).

        To determine whether this Court possesses subject matter jurisdiction, we must
first determine whether Defendant was charged with a violation of a state statute or a
municipal ordinance. See generally State v. Joe Clyde Tubwell, No. W2012-01385-CCA-
R3-WM, 2012 WL 6476097, at *2 (Tenn. Crim. App. Dec. 13, 2012) (noting that the
nature of appellate jurisdiction is dependent on whether the defendant was charged with
        6
         Unlike in criminal cases, the time limit for filing a notice of appeal in civil cases is jurisdictional
and cannot be waived in the interests of justice. See Albert v. Frye, 145 S.W.3d 526, 528 (Tenn. 2004);
Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 869 (Tenn. Ct. App. 2008).
                                                    -4-
violating a municipal ordinance or a state statute), no perm. app. filed. Violations of state
statutes are criminal, and the jurisdiction of this Court extends to the review of final
judgments in criminal cases, both felony and misdemeanor. See T.C.A. § 16-5-108(a)(1);
City of Church Hill v. Roger Elliott, No. E2016-01915-CCA-R3-CD, 2017 WL 2591371,
at *4 (Tenn. Crim. App. June 15, 2017), no perm. app. filed. On the other hand,
violations of municipal ordinances, which do not involve the potential for incarceration,
are considered civil for the purposes of procedure and appeal. See City of Chattanooga v.
Myers, 787 S.W.2d 921, 928 (Tenn. 1990). Thus, jurisdiction over such appeals lies with
the Tennessee Court of Appeals. See T.C.A. § 16-4-108; City of Chattanooga v. Davis,
54 S.W.3d 248, 260 (Tenn. 2001). Though municipal ordinances may mirror, duplicate,
or cross-reference state criminal or traffic statutes, the two are not interchangeable. City
of La Vergne v. Randall T. LeQuire, No. M2016-00028-COA-R3-CV, 2016 WL
6124117, at *3, *5 (Tenn. Ct. App. Oct. 19, 2016), no perm. app. filed.

       Defendant asserts that the traffic citation issued in this case does not clearly
specify whether he was charged with a violation of state statute or municipal ordinance
for running a stop sign. See T.C.A. § 55-8-109(a), (d) (making the failure to “obey the
instructions of any official traffic control device” a Class C misdemeanor); City of
McMinnville Municipal Code § 15-117 (“It shall be unlawful for . . . the operator of any
vehicle to violate or fail to comply with any traffic-control sign, signal, marking, or
device . . . .”). As we shall discuss further below, subject matter jurisdiction in this case
properly lies with the Court of Appeals because the City Court had jurisdiction only over
municipal ordinances, which are civil.

       Under the Municipal Court Reform Act of 2004, the jurisdiction of municipal
courts is set forth as follows:

       (1) A municipal court possesses jurisdiction in and over cases:

              (A) For violation of the laws and ordinances of the municipality; or

              (B) Arising under the laws and ordinances of the municipality; and

       (2) A municipal court also possesses jurisdiction to enforce any municipal
       law or ordinance that mirrors, substantially duplicates or incorporates by
       cross-reference the language of a state criminal statute, if and only if the
       state criminal statute mirrored, duplicated or cross-referenced is a Class C
       misdemeanor and the maximum penalty prescribed by municipal law or
       ordinance is a civil fine not in excess of fifty dollars ($50.00).



                                            -5-
T.C.A. § 16-18-302(a). This Court has previously held that Tennessee Code Annotated
section 16-8-302(a)(2) does not bestow upon municipal courts jurisdiction over criminal
misdemeanors; instead, “[t]he violation of the language of a state criminal statute
incorporated by cross-reference into a municipal ordinance is civil, whereas the violation
of the state criminal statute itself is criminal.” Roger Elliott, 2017 WL 2591371, at *4.

       “[W]hile ordinarily the jurisdiction of municipal courts is limited to cases
involving violations of municipal ordinances, it may be extended by the Legislature to
cases arising under state law.” Moore v. State, 19 S.W.2d 233, 233 (Tenn. 1929).
Tennessee Code Annotated section 40-1-107 grants “[o]riginal jurisdiction of criminal
actions” to “city judges of certain towns and cities.” “Those municipal courts that
exercise jurisdiction over criminal offenses are usually accorded concurrent jurisdiction
with general sessions courts for offenses committed within the city limits.” State v. Elke
Babette Paster, No. W2014-00606-CCA-R3-CD, 2015 WL 376450, at *2 (Tenn. Crim.
App. Jan. 28, 2015), perm. app. denied (Tenn. May 19, 2015). However, a municipal
judge must meet all of the constitutional requirements for an inferior court judge in order
to preside over trials of criminal offenses that may be punishable by incarceration. See
City of White House v. Whitley, 979 S.W.2d 262, 265 (Tenn. 1998). One such
requirement for a municipal court to have jurisdiction over criminal law is that the judge
must be popularly elected for an eight-year term. See id. (citing Tenn. Const. Art. VI, §
4; T.C.A. § 16-18-202); Roger Elliott, 2017 WL 2591371, at *4. The municipal judge for
the City of McMinnville is nominated by the mayor and appointed by the majority of
members of the board of mayor and aldermen. City of McMinnville Municipal Code § 3-
101. Thus, the jurisdiction of the City Court was “limited to violations of municipal laws
and ordinances, including ordinances which properly incorporate the language of state
criminal statutes.” Roger Elliott, 2017 WL 2591371, at *5.

       It is clear from the record before this Court that this case was treated as a civil
violation of a municipal ordinance from its inception. The traffic citation directed
Defendant to appear in the City Court, which only had jurisdiction over cases arising
under the laws of the municipality, rather than the General Sessions Court. The City
Court’s order found Defendant “guilty of violating Municipal Ordinance section 15-117.”
The Circuit Court’s order found Defendant “guilty of violating the City ordinance
concerning failure to adhere to the stop sign.” The Circuit Court did not issue a Uniform
Judgment Document, which is required for every criminal conviction pursuant to Rule 17
of the Rules of Tennessee Supreme Court. Defendant himself relied on the Tennessee
Rules of Civil Procedure in his various motions. Nowhere in the record is there any
indication that Defendant was charged with or convicted of violating Tennessee Code
Annotated section 55-8-109.



                                           -6-
       Because Defendant was found guilty of violating a municipal ordinance, we are
without subject matter jurisdiction to consider this case. Therefore, we must transfer this
case to the Tennessee Court of Appeals in accordance with Tennessee Rule of Appellate
Procedure 17 for further adjudication. The Court of Appeals will be able to determine
whether Defendant’s Notice of Appeal is untimely or premature.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




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