                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 October 24, 2012 Session

  KENNETH BROWN, SANDRA McCULLEY, AND SHAWN McCULLEY
                          v.
                    SAMIR SHTAYA

                An Appeal from the Circuit Court for Shelby County
           No. CT-003801-10 (CT-004711-10)    Robert L. Childers, Judge


                 No. W2012-00875-COA-R3-CV - Filed March 6, 2013




                                DISSENTING OPINION



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

In this case, the majority concludes that the plaintiffs’ payment of $211.50 to the General
Sessions Court clerk satisfied the requirements of Tennessee Code Annotated section 27-5-
103, and therefore, that the Circuit Court erred in dismissing their appeal for lack of subject-
matter jurisdiction. In reaching this conclusion, the majority relies upon the recent case of
Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL
593911 (Tenn. Ct. App. Feb. 15, 2013). Because I believe Bernatsky is based upon a flawed
premise, I respectfully dissent.

The Bernatsky majority finds it appropriate to overrule two previous decisions of this Court,
which squarely address the issue presented in Bernatksy, and in which the Supreme Court
recently denied permission to appeal: Jacob v. Partee, No. W2012-00205-COA-R3-CV,
2012 WL 3249605 (Tenn. Ct. App. Aug. 10, 2012) perm. app. denied (Tenn. Dec. 12, 2012)
and University Partners Development v. Bliss, No. M2008-00020-COA-R3-CV, 2009 WL
112571 (Tenn. Ct. App. W.S. Jan. 14, 2009) perm. app. denied (Tenn. Aug. 17, 2009). In
both Jacob and University Partners, this Court held that an appellant who sought to appeal
from general sessions court to circuit court could not satisfy the bond requirements of
Tennessee Code Annotated section 27-5-103 by merely remitting payment of the initial filing
fee. In both cases, this Court reasoned that payment of the initial filing fee did not constitute
giving “bond with good security” for “the cost of the cause on appeal[,]” and therefore, that
the circuit court never acquired jurisdiction over the attempted appeal. See Jacob, 2012 WL
3249605, at *3; Univ. Partners, 2009 WL 112571, at *3. In Jacob, we expressly rejected
the appellants’ argument that section 27-5-103 was ambiguous. 2012 WL 3249605, at *2.
Instead, we found that “[t]he requirements of a ‘bond with good security’ could not be more
clear: an appeal bond which secures all costs incurred throughout the appeal, as opposed to
an initial appeal filing fee, is required.” Id. at *2.

Just two months after the Supreme Court denied permission to appeal in Jacob, however, a
different panel of this Court, in an apparent effort to overcome perceived difficulties in
securing a bond to cover circuit court costs, suddenly discovered ambiguities within section
27-5-103 which, in its opinion, necessitated consideration of copious amounts of legislative
history. In fact, the Bernatksy majority suddenly located not one, but two, ambiguities within
section 27-5-103.1 First, the majority found that “the costs of the appeal” “‘may refer to the
costs of the entire appeal taxed at the conclusion of the litigation . . . or it may simply refer
to a ‘fee’ charged by the court to commence litigation.’” Bernatsky, 2013 WL 593911, at *6.
Additionally, the majority found that section 27-5-103(a)’s use of the phrase “as hereinafter
provided” created an ambiguity because, it reasoned, the phrase “could be a reference to
giving further definition regarding any number of facts, such as the type of security given,
the amount of the bond, whether the ‘cost’ is a designated cost for commencing or initiating
that appeal or for all of the costs that will ever be incurred in the case, or some other factor
entirely.” Id.

Based upon these perceived ambiguities, the Bernatsky majority consulted the legislative
history of the 1988 amendment to section 27-5-103. The majority noted that the amendment
was a legislative response to the case of Maddock, Kenny & Associates, Inc. v. Management
Assistance and Service, Inc., 1986 WL 8811 (Tenn. Ct. App. Aug. 14, 1986), in which this
Court held that a defendant appealing to circuit court was required to post a bond in the
amount of the judgment rendered against him in the general sessions court. The majority
acknowledged that the legislative discussion centered on whether a bond to cover the general
sessions judgment against an appealing defendant was statutorily required. However, the
majority held tight to this Court’s statement in Maddock that “[i]n the case of an appealing
plaintiff, the appeal bond, ‘with good security,’ must be in the minimum amount of $250 for
costs[,]” and it insisted that the absence of legislative discussion regarding the plaintiff’s
appeal requirements necessarily indicated its conclusion that payment of the initial filing fee
satisfied the requirements of 27-5-103.




        1
        It is significant that in the entire history of the statute, no court prior to Bernatsky had ever
found an ambiguity.

                                                  -2-
Beyond the absence of legislative discussion regarding the amount of a plaintiff’s bond, the
Bernatsky majority clung to the concern of at least some legislators that requiring a bond in
the amount of the judgment would create a detriment to the “working poor” and, in effect,
foreclose the class’ ability to bring an appeal. The majority then presumed that requiring an
appeal bond to cover all of the court costs on appeal–which, of course, would not include the
amount of the general sessions judgment–would likewise deprive would-be appellants of
their day in court.

Finally, in discussing section 27-5-103’s alleged ambiguity, the Bernatsky majority focused
upon cases which, in considering other issues, merely referenced the payment of a sum
certain, and it again focused on legislative inaction in the face of these judicial references.

The majority then concluded–in light of the absence of legislative discussion requiring the
payment of a sum certain, some legislators’ concerns regarding the working poor’s ability
to secure a bond covering a judgment, and legislative inaction following judicial references
to a sum certain–that the requirements of section 27-5-103 are satisfied by the payment of
an amount certain “to be determined ‘as hereinafter provided[.]’” Id. at *12 (quoting Tenn.
Code Ann. § 27-5-103(a)). It then determined that section 27-5-103's requirement that an
appealing party “give bond with good security” could be satisfied either by remittance of a
cash payment or the filing of a surety bond.

Finally, in an effort to determine the amount of the requisite payment or bond, the majority
consulted Tennessee Code Annotated section 8-21-401. Because sections 27-5-103 and 8-
21-401 both “relate to . . . the commencement of an appeal from General Sessions court to
Circuit court[,]” the Bernatsky majority concluded that “Section 8-21-401(b)(1)(C)(i) was
intended by the legislature to dovetail with Section 27-5-103, to supply the amount of ‘the
costs of the appeal’ that are to be secured by the statutory appeal bond.” Id. at *17.
However, the majority acknowledged that section 8-21-401 does not reference section 27-5-
103, and therefore, it somehow found it appropriate to consider the legislative history of
section 8-21-401.

The Bernatsky majority stated that section 8-21-401 was intended to address both a lack of
uniformity in court costs and monies lost in uncollected court costs. According to the
majority, the legislative history of section 8-21-401 revealed its sponsor’s intention that court
costs be paid in advance, eliminating the need for a cost bond. Id. at *18. Indeed, the
majority stated that the bill sponsor and Judicial Council representatives had indicated that
“the standardized amount of court costs was intended to be essentially inclusive of all costs
to be charged in the litigation.” Id. (footnote omitted). Thus, the Bernatsky majority
concluded that “payment of the dollar amount in ‘standard court cost’ listed in Section 8-21-
401(b)(1)(C)(i) at the time an appeal from General Sessions Court to Circuit Court is

                                               -3-
instituted fulfills the Section 27-5-103 appeal-bond requirement.” Id. at *19.

At the outset, I simply cannot agree with the conclusion that any portion of section 27-5-103
is ambiguous. This “ambiguity” issue was specifically raised and specifically rejected in the
recent Jacob decision. Section 27-5-103 provides:

       (a) Before the appeal is granted, 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.

       (b) An appeal bond filed by a plaintiff or defendant pursuant to this chapter
       shall be considered sufficient if it secures the cost of the cause on appeal.

As aptly explained in Judge Stafford’s concurrence in Bernatsky:

       [T]he majority concludes that the statute “lacks precision” in that the phrase
       “as hereinafter provided” may refer to another statute to establish the costs of
       the appeal, specifically the later-enacted Tennessee Code Annotated Section
       8–21–401. However, the later enactment of subsection (b) is not relevant to
       the inquiry of whether Tennessee Code Annotated Section 27–5–103 is
       ambiguous. Courts must only consider the statutory text in determining
       whether an ambiguity exists. See Nye v. Bayer Cropscience, Inc., 347 S.W.3d
       686, 694 (Tenn. 2011). Only if a statute is determined to be ambiguous may
       the court then “consider matters beyond the statutory text, including public
       policy, historical facts relevant to the enactment of the statute, the
       background and purpose of the statute, and the entire statutory scheme. Mills
       v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (citing Lee Med., Inc.,
       312 S.W.3d at 527–28) (emphasis added). Thus, consideration of matters such
       as “historical facts preceding or contemporaneous with the enactment of the
       statute being construed ... [and] earlier versions of the statute” is only
       permitted once the statute is determined to be ambiguous. Am. Jur. 2d Statutes
       § 64 n. 5 (citing Lee Med., Inc., 312 S.W.3d at 527–28). However, “these non-
       codified external sources cannot provide a basis for departing from clear
       codified statutory provisions.” Mills, 360 S.W.3d at 368. Disregarding the
       historical context of the amendment to Tennessee Code Annotated Section
       27–5–103 and considering only the current statutory text, as I must at this stage
       in the analysis, I cannot conclude that there is an ambiguity in the statute at issue.

       To hold that the simple phrase “as hereinafter provided” alone causes an


                                                -4-
       ambiguity creates a forced interpretation at odds with the established rules of
       statutory construction. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.
       2000) (holding that a court's job in interpreting a statute is to ascertain the
       intention of the legislature without employing a “forced or subtle interpretation
       that would limit or extend the statute's application”). Indeed, the Tennessee
       Supreme Court has held that “it is improper to take a word or a few words
       from its context and, with them isolated, attempt to determine their meaning.”
       Eastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn. 2004). In this case, the
       majority seeks to find an ambiguity in the isolated phrase “as hereinafter
       provided,” while ignoring the fact that the most natural interpretation of the
       statute's text requires us to hold that the “as hereinafter provided” language
       clearly refers to the following subsection of the statute.

Bernatsky, 2013 WL 593911, at *16; Bernatsky, 2013 WL 593911, at *24 (J. Stafford,
concurring and seemingly partially dissenting).


Moreover, I cannot agree with the Bernatsky Court’s finding that the phrase “costs of the
appeal” renders section 27-5-103 ambiguous. In finding such ambiguity, the Bernatsky Court
focused upon subsection (a)’s “costs of the appeal” without looking to subsection (b) for
further clarification of the phrase. Read together, subsections (a) and (b) require that an
appellant give “[a]n appeal bond” “with good security” to “secure[] the cost of the cause on
appeal.” Thus, the statute does not simply require that some unspecified “costs” be secured;
it specifically requires that those “costs” secure the “cost of the cause on appeal.” It is
elementary that a payment to commence an appeal–whether termed a “fee,” a “cost,” or a
“bond”–does not provide security for the “cost of the cause”–the “cause,” of course, being
the appeal. Thus, the plain language of section 27-5-103 requires a litigant appealing from
a judgment in the general sessions court to file a bond for all of the costs of the appeal. The
plain language of the statute does not place a monetary limit on the appeal bond. Because the
costs of the appeal are unknown at the time of commencing the appeal, the statute clearly
requires a bond in an undetermined amount. Therefore, by its plain language, the statute
requires a bond for all the costs of the litigation in order to successfully perfect an appeal
from the general sessions court.


In the absence of ambiguities within section 27-5-103, its legislative history may not properly
be considered. See Keen v. State, --- S.W.3d ----, 2012 WL 6631245, at *12 (Tenn. 2012)
(citations omitted) (“If the statutory language is clear and unambiguous, we apply the
statute’s plain language in its normal and accepted use. We need look no further than the
statute itself, enforcing it just as it is written.”). In any event, the legislative history of


                                              -5-
section 27-5-103 cited by the Bernatsky majority, is, in my opinion, less than compelling.


As was acknowledged by the Bernatsky majority, the 1988 amendment to section 27-5-103
was a legislative response to a decision by this Court to require a bond for the amount of the
judgment2 –an entirely different issue from that presented in Bernatsky and in the instant case.
Moreover, the legislators apparently expressed concern regarding the “working poor’s”
potential inability to secure a bond for the amount of the judgment–as opposed to the amount
of courts costs incurred throughout the appeal. The legislators’ reasoning does not pour over
as easily as the Bernatsky Court suggests. The requirement that a litigant secure a bond to
cover all court costs incurred throughout the appeal–necessarily excluding the judgment
amount–requires only a bond for a not-yet-known amount. It does not require an
“unlimited” bond. A bonding company could easily issue a bond “securing all court
costs”–the exact amount of which is unknown until the case is resolved.


Moreover, I find less-than-compelling the Bernatsky majority’s reliance upon perceived
legislative “acquiescence” in light of case law referencing payment of a sum certain. In City
of Red Boiling Springs v. Whitley, 777 S.W.2d 706 (Tenn. Ct. App. 1989), cited by the
Bernatsky majority, a city court defendant erroneously paid a $250.00 fee to the circuit court
clerk–as opposed to the city court clerk–to appeal his case. On appeal, this Court held that
filing the bond in the wrong court did not warrant dismissal; however, it found the appeal had
not been perfected because the bond lacked a surety. Id. at 708. The Court, referencing
section 27-5-103, stated, “We know of no case that says an appeal bond without a surety filed
in the circuit court substantially complies with the statutory provisions governing appeals
from inferior courts.” Id.; see also City of Maryville v. Scholem, No. 03A01-9111-CV-401,
1992 WL 62007, at *2 (Tenn. Ct. App. E.S. Mar. 31, 1992) perm. app. denied (Tenn. Aug.
24, 1992) (“In the Red Boiling Springs case, the court found the appellant failed to properly
perfect his appeal because he had no surety on the appeal bond as required by the statute.”).
Although the Bernatsky majority is correct that City of Red Boiling Springs refers to the
payment of the $250 fee as a “bond,” it nonetheless finds such is deficient unless a surety is
included. Thus, City of Red Boiling Springs stands for the proposition that some type of bond
beyond a fee payment is required–precisely what a different panel of this Court held in Jacob


       2
         The Bernatsky majority states that the legislature did not “indicate any intent to disturb the
Maddock Court’s holding that an appeal bond for costs in ‘the minimum amount of $250’ was
sufficient under the statute to secure ‘the costs of the appeal’” Bernatsky, 2013 WL 593911, at *8.
However, the Maddock Court clearly envisioned that appealing plaintiffs would not simply file a
$250 fee, as it stated that a defendant subject to a non-prosecuting plaintiff/appellant would be
entitled to dismissal of the appeal and a judgment against the plaintiff “and his sureties on the appeal
bond for costs.” Maddock, 1986 WL 8811, at *2 (emphasis added).

                                                  -6-
v. Partee. See also Tejwani v. Trammell, No. 02A01-9103-CV-00036, 1991 WL 136224, at
*2 (Tenn. Ct. App. W.S. July 26, 1991) (mentioning a $250 sum, but requiring a surety).
Simply put, I am more than skeptical that the cases relied upon by the Bernatksy
majority–which mostly relate to other issues–in fact, support its contention that the legislature
has acquiesced to mere payment of an initial filing fee.


However, I find it curious that the majority would rely so heavily upon purported legislative
acquiescence, while all but ignoring our Supreme Court’s recent implicit affirmance of our
holding in Jacob which addressed the exact issues raised in Bernatsky and now in the instant
case. See Rose Const. Co., Inc. v. Raintree Dev. Co., LLC, No. W2003-01845-COA-R3-
CV, 2004 WL 2607766, at *2 (Tenn. Ct. App. Nov. 16, 2004) perm. app. denied (Tenn. May
9, 2004) (stating that a decision was “implicitly affirmed” when the Supreme Court denied
application for permission to appeal).3


Finally, I disagree with the Bernatsky majority’s reliance upon Tennessee Code Annotated
section 8-21-401. As previously stated, 27-5-103 unambiguously requires a bond covering
all appeal costs. Therefore, it is unnecessary to consider section 8-21-401 to determine the
sum sufficient to satisfy the requirements of section 27-5-103. In any event, I would note
that section 8-21-401 is clear on its face; it explicitly declares that the “[i]f a party . . . pays
costs at the time the services are requested, such payment shall be deemed to satisfy the
requirement for security to be given for costs, pursuant to § 20-12-120.” (emphasis added).
Section 20-12-120 is not the cost bond requirement of Section 27-5-103. Applying the canon
of construction “expressio unius est exclusio alterius,” which holds that the expression of one
thing implies the exclusion of others, the Court should infer that had the legislature intended
for payment of section 8-21-401 costs to satisfy the requirements of section 27-5-103, it
would have included specific language to that effect. See Rich v. Tenn. Bd. of Med. Exam.,
350 S.W.3d 919, 927 (Tenn. 2011).


Moreover, without a finding of ambiguity within section 8-21-401, the Bernatsky Court
clearly lacked the authority to consider the statute’s legislative history.4 No matter what the
bill sponsor or a representative of the Judicial Council–who is not a member of the General


       3
        To the same effect as Jacob v. Partee, see Atty. Gen. Op., No. 12-23, 2012 WL 682072, at
*2 (Feb. 23, 2012). Neither the Attorney General nor the Supreme Court, in denying permission to
appeal in Jacob v. Partee, noted any ambiguity in the statute.
       4
         The Bernatsky court purportedly found an ambiguity in section 27-5-103. Section 8-21-401
is a separate statute entirely, found in a different title of the Code.

                                                -7-
Assembly–may have said at the time of the statute’s enactment, the legislature did not enact
a statute in which payment of the sums contemplated in section 8-21-401 were deemed to
satisfy the requirements of section 27-5-103. In holding this, the Bernatsky Court departed
from the express language found in section 8-21-401.


Additionally, assuming that section 8-21-401's legislative history could be properly
considered, the history does not fully support the Bernatksy Court’s conclusions. According
to the Court, the 2005 amendment to section 8-21-401 was conceived, in part, to address the
problem of lost court costs revenue. In light of this purported mission, it is doubtful that the
legislature would eliminate the appeal bond requirement, and simply allow upfront payment
of the litigation commencement fee.


As expressed in Jacob, I believe that section 27-5-103 unambiguously requires an appeal
bond which secures all costs incurred throughout the appeal, as opposed to payment of an
initial appeal filing fee. Accordingly, I cannot subscribe to the conclusions reached in
Bernatsky which underlie the result in the instant case. For these reasons, I respectfully
dissent.




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




                                              -8-
