                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  February 17, 2009 Session

                TIM BURRUS, ET AL. v. JIMMY WISEMAN, ET AL.

                 Direct Appeal from the Chancery Court for Benton County
                         No. 1698         Donald P. Harris, Judge



                    No. W2008-01707-COA-R3-CV - Filed March 26, 2009


This is a lawsuit filed by eight county officials to resolve a budget dispute. The officials filed an
application in Chancery Court seeking judicial authorization to hire additional staff and to increase
the salaries and benefits paid to a separate group of county employees. One day after the petition
was filed, the officials, along with the defendant County Mayor, entered a consent order approving
each petitioner’s requests. One month later, the County Commission attempted to intervene and
have the order set aside. The trial court denied the County Commission’s motions, and the County
Commission appeals. We affirm the trial court’s denial of the motion to intervene. However,
several procedural and substantive defects require this Court to vacate the Consent Order and remand
this matter to the trial court.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
                             Vacated in Part and Remanded

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and DAVID R. FARMER , J., joined.

Brandon O. Gibson, Jackson, TN, for Appellant Benton County

Laura A. Keeton, Huntington, TN, for Appellees, Benton County Clerk and Master; Benton County
Assessor of Property; Benton County Circuit Court Clerk; Benton County Register; Benton County
Trustee; and Benton County Clerk


                                            OPINION


                                            Background

               This appeal arises from the efforts of several Benton County officials to hire
additional deputies or assistants through a petition filed pursuant to Tenn. Code Ann. § 8-20-101.
The Petition was filed on September 18, 2007 in Benton County Chancery Court by eight separate
county officials (collectively, “Petitioners”): Tim Burrus, Clerk and Master for Benton County;
Sherry Beasley, Trustee for Benton County; Linda Armstrong, Assessor of Property; Diane Latimer,
Administrator of Elections; Ron Darby, General Sessions and Juvenile Court Judge; Debbie Hargis,
Register of Deeds; Terry Hudson, Clerk for the Circuit, General Sessions, and Juvenile Courts; and
Wanda Malin, County Clerk. As required by Tenn. Code Ann. § 8-20-102, the Petition named the
County Mayor, Jimmy Wiseman, as the Defendant. Petitioners requested the authority to hire
additional deputies and asked the court to set the salary of each new deputy. Petitioner also asked
the court to alter the salaries and benefits of a broad group of County employees (defined in the
Petition as “all employees subject to the Courthouse Policy and Procedures Handbook) as follows:

       4. That all employees of the office be afforded the same health insurance coverage
       as the school employees through the State of Tennessee Insurance Pool.
       5. That all employees receive at least the following minimum salaries based on years
       worked with the county regardless of which office: Starting salary $20,000; after first
       year $21,000, after second year $22,000, after five years $24,000
       6. That all employees who have worked for Benton County in any capacity for five
       (5) years or more shall receive on their employment anniversary longevity pay in the
       form of $100.00 for each year of service.
       7. That said pay scale be retroactive to any person not now making at least the
       minimum proscribed salary for the length of time employed.
       8. That all employees receive a yearly cost of living raise equal to the cost of living
       increase designated for state employees.

Neither the Petition nor the Final Order state the number of employees subject to the Handbook or
in which offices they work.

        On September 19, 2007, the day after the Petition was filed, a Consent Order was entered
approving all of the Petitioners’ requests. The County Mayor, as the named defendant, did not file
an Answer to the Petition, and the trial court did not conduct a hearing on the Petition. The trial
court did not make a finding that the Petitioners were unable to discharge the duties of their
respective offices. Likewise, the trial court did not find that the Petitioners had shown the necessity
for assistants and the salary each should be paid.

        On October 18, 2007, the Benton County Commission (“the Commission”), acting in the
name of Benton County, filed a motion to intervene under both Tenn. R. Civ. P. 24.01 and 24.02.
At the same time, the Commission filed a motion to set aside, or in the alternative, alter or amend
the Consent Order. On April 11, 2008, the trial court denied the Commission’s motion to intervene,
because Tenn. Code Ann. § 8-20-102 names the County Mayor as the sole defendant to an official’s
salary petition. The trial court concluded that this statute gives the County Mayor the discretion to
sign a consent order approving the requested relief. The trial court, however, questioned sua sponte
its authority to grant relief under Tenn. Code Ann. § 8-20-101 to Diane Latimer, the Administrator
of Elections and Ron Darby, the General Sessions and Juvenile Court Judge. As a result, Petitioners



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Latimer and Darby took a voluntary non-suit on September 15, 2008 and are not parties to this
appeal.

       The Commission appeals and raises two issues for review:

1) Whether the Chancery Court erred in failing to allow Benton County, Tennessee to intervene in
this action.
2) Whether the Chancery Court erred in refusing to set aside a Consent Order between
Appellees/Petitioners and the County Mayor in an action under Tenn. Code Ann. § 8-20-101.

                                         Law and Analysis

A. Intervention

         Budgetary decisions are generally left to the legislative branch of government. Some county
officials, however, have two statutory alternatives to the typical budgeting process: a court order or
a letter of agreement. Tenn. Code Ann. § 8-20-101. This statute describes the procedure through
which these officials can “obtain a judgment or decree fixing the number of [the official’s] deputies
and the salaries to be paid them.” Atkinson v. McClanahan, 520 S.W.2d 348, 352 (Tenn. Ct. App.
1974). In the present case, Petitioners opted to seek relief through a court order pursuant to Tenn.
Code Ann. § 8-20-101(a), which provides:

       Where any one (1) of the clerks and masters of the chancery courts, the county clerks
       and the clerks of the probate, criminal, circuit and special courts, county trustees,
       registers of deeds, and sheriffs cannot properly and efficiently conduct the affairs and
       transact the business of such person's office by devoting such person's entire working
       time thereto, such person may employ such deputies and assistants as may be actually
       necessary to the proper conducting of such person's office....

Tenn. Code Ann. § 8-20-101(a). Here, the typical procedure was complicated by the fact that several
county officials sought relief together in the same Petition.

         When hearing a salary petition brought under § Tenn. Code Ann. § 8-20-101, the trial court
is authorized to enter an order fixing the number and salaries of the county official’s employees. In
this proceeding, the court cannot enter an order compelling the county’s legislative body to
appropriate the funds necessary to hire the new employees. Jones v. Mankin, No. 88-263-II, 1989
WL 44924, at *3 (Tenn. Ct. App. May 5, 1989); Ledbetter v. Duncan, 676 S.W.2d 91, 93 (Tenn.
Ct. App. 1984). If the legislative body subsequently refuses to appropriate the necessary funds, the
official may seek a writ of mandamus compelling it to do so. Moore v. Cates, 832 S.W.2d 570, 572
(Tenn. Ct. App. 1992); State ex rel. Ledbetter v. Duncan, 702 S.W.2d 163, 165 (Tenn. 1985).
When the official seeks an order compelling legislative action, “the members of [the legislative
body] should be made parties defendant and brought before the Trial Court prior to the issuance of
a mandatory order.” Atkinson, 520 S.W.2d at 352.


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       The statute also describes a specific procedure for both the trial court and the parties to
follow when a salary petition is filed:

       Each of the above named officers shall name in the petition the county executive as
       the party defendant thereto. A copy of the petition shall be served on the county
       executive, who shall file an answer to the petition within five (5) days from the date
       of service of the petition, either admitting the allegations of the petition or denying
       same, or making such answer as the county executive deems advisable under the
       circumstances. Whereupon, the court shall promptly in term or at chambers have
       such a hearing on the application, on the petition and answer thereto, as will develop
       the facts, and the court may hear proof either for or against the petition. The court
       may allow or disallow the application, either in whole or in part, and may allow the
       whole number of deputies or assistants applied for or a less number, and may allow
       the salaries set out in the application or smaller salaries, all as the facts justify.

Tenn. Code Ann. § 8-20-102. Under typical circumstances, this statute envisions “an adversary
proceeding between [the county official] and the county executive.” Shelby Co. Deputy Sheriff’s
Ass’n v. Gilless, 972 S.W.2d 683, 685 (Tenn. Ct. App. 1997). The circumstances in the present case,
however, were far from typical. The Consent Order was entered only a day after the petition was
filed, and the County Mayor did not object to the requests made or demand proof of their necessity.
The Commission felt that the proceeding was not adversarial and argued that the County Mayor
exceeded his authority by signing the Consent Order. Accordingly, the Commission filed a motion
to intervene and a motion to set aside the order.

        The Tennessee Rules of Civil Procedure provide two methods of intervention: intervention
as of right under Rule 24.01 and permissive intervention under Rule 24.02. The trial court denied
the Commission’s motion on both grounds. On appeal, the standard of review for a denial of
intervention as of right is de novo. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186,
191 (Tenn. 2000). The denial of permissive intervention is reviewed only for abuse of discretion.
Id.
        Tenn. R. Civ. P. 24.01 provides for intervention as of right under the following
circumstances:

       Upon timely application anyone shall be permitted to intervene in an action: (1) when
       a statute confers an unconditional right to intervene; or (2) when the applicant claims
       an interest relating to the property or transaction which is the subject of the action
       and the applicant is so situated that the disposition of the action may as a practical
       matter impair or impede the applicant's ability to protect that interest, unless the
       applicant's interest is adequately represented by existing parties; or (3) by stipulation
       of all the parties.

The Commission does not have explicit statutory authority to intervene under subsection (1) of Rule
24.01, and the parties have not stipulated to the intervention under subsection (3). The Commission


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therefore relies on subsection (2), asserting that its interest in the County’s budget has been impaired
by Petitioners and the County Mayor. To prevail under this theory, the party seeking to intervene
“must establish that (1) the application for intervention was timely; (2) the proposed intervenor has
a substantial legal interest in the subject matter of the pending litigation; (3) the proposed
intervenor's ability to protect that interest is impaired; and (4) the parties to the underlying suit
cannot adequately represent the intervenor’s interest.” Brown & Williamson, 18 S.W.3d at 190-91.
On appeal, Petitioners have not challenged the trial court’s implicit finding that the Commission’s
motion to intervene was timely. Accordingly, we will move directly to the Commission’s
substantive argument.

         The Commission maintains that it has a substantial legal interest in this action because it will
ultimately be forced to allocate the funds set in the Consent Order. As the county’s legislative body,
the Commission contends that it holds the exclusive authority to appropriate county funds for the
payment of salaries to county officials and employees. The trial court’s order, however, does
not–and could not–compel the Commission to appropriate funds for the county officials in this
proceeding. See Ledbetter, 676 S.W.2d at 93. The Commission then does not have a direct interest
in this action; its interest arises once the county officials seek an order compelling legislative action,
at which point the Commission should be made a party. Atkinson, 520 S.W.2d at 352. As a
practical matter, however, the Commission argues that the Consent Order will compromise its ability
to make budgetary decisions in the future.

        The Commission concedes that the statute clearly identifies the County Mayor as the
defendant in actions brought under Tenn. Code Ann. § 8-20-101. However, the Commission argues
that the executive is merely a nominal defendant whose role is to represent the County’s interest.
By agreeing to the Consent Order without consulting the Commission, the County Mayor failed to
represent the County adequately. To support this argument, the Commission points to Tenn. Code
Ann. § 5-6-112, which grants the county mayor the power to employ a county attorney “to represent
the county either as plaintiff or defendant in such suits as may be brought by or against the county[.]”
This statute, however, does not give the county’s legislative body the authority to interfere with the
mayor’s representation. Here, the Commission is objecting to the quality of the mayor’s
performance as the county’s representative. The quality of the mayor’s performance, however, is
not the issue; Tenn. Code Ann. § 8-20-102 unambiguously requires the county mayor to be named
as the defendant. In the absence of clear statutory direction, we are without authority to subject the
county mayor’s authority as the party defendant in a county official’s salary action to legislative
oversight.

        The Commission’s position is weakened by the fact that county officials often file petitions
for funding under Tenn. Code Ann. § 8-20-101 after a request for funding was denied by the
legislative body (here, the Commission). See Bane v. Nesbitt, No. M2006-00069-COA-R3-CV,
2006 WL 3694444, at *7 (Tenn. Ct. App. Dec. 14, 2006) (“A sheriff whose request for
personnel-related funding is denied by his or her local legislative body may file an application for
review of the funding request with the judge of the circuit court in the sheriff's county....”). If we
allowed the Commission to intervene, a hearing on a Tenn. Code Ann. § 8-20-101 petition would


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become yet another legislative budget dispute–only now with judicial involvement. The statute does
not contemplate such an unwieldy proceeding.

        The trial court also denied the Commission’s motion to intervene under Rule 24.02. Rule
24.02 allows for permissive intervention under two circumstances: “(1) when a statute confers a
conditional right to intervene; or (2) when an applicant's claim or defense and the main action have
a question of law or fact in common.” Tenn. R. Civ. P. 24.02. Permissive intervention is
inappropriate if it will prejudice the rights of the original parties. Id. Under Tenn. Code Ann. § 8-
20-101, county officials are explicitly given the right to petition the court for additional deputies
without legislative involvement. The statute allows county officials this judicial option, in part,
because they, like the Commissioners and County Mayor, are popularly elected. Jones, 1989 WL
44924, at *2. Accordingly, Petitioners’ rights under Tenn. Code Ann. § 8-20-101 could be
prejudiced if the legislative body were permitted to intervene. Therefore, we find that the trial court
did not abuse its discretion by denying the Commission’s motion to intervene under Rule 24.02.


B. Jurisdiction and Validity of the Consent Order

        Petitioners assert, if the Commission cannot intervene, that this Court’s inquiry must end as
none of the remaining parties have sought appellate relief. We disagree. Although the Commission
is not entitled to intervene, we will consider several blatant defects–both procedural and
substantive–in the proceeding below. The Petition was initially filed by eight separate county
officials. Several months after the Consent Order was entered, the trial court properly questioned
the authority of Ron Darby, General Sessions and Juvenile Court Judge, and Diane Latimer,
Administrator of Elections, to petition for funds under Tenn. Code Ann. § 8-20-101. If Petitioners
could not properly file in Chancery Court, then the trial court lacked subject matter jurisdiction.
Under Tenn. R. App. P. 13(b), this Court must consider whether the trial court has jurisdiction over
the subject matter. Furthermore, this Court may, in our discretion, consider other issues not raised
by the parties for the following reasons: “(1) to prevent needless litigation, (2) to prevent injury to
the interests of the public, and (3) to prevent prejudice to the judicial process.” Tenn. R. App. P.
13(b).

        Among the six remaining Petitioners, five (the Clerk and Master, County Clerk, Register of
Deeds, Trustee and Circuit Court Clerk) properly filed in Chancery Court pursuant to Tenn. Code
Ann. § 8-20-101(3). Petitioner Armstrong, as Assessor of Property, however, is not permitted to
seek relief because Tenn. Code Ann. § 8-20-101 does not list assessors of property as eligible
petitioners. An assessor of property may employ a deputy or assistant only if authorized by the
county legislative body or by Tenn. Code Ann. § 67-1-506. This statute sets a minimum number of
deputies for the assessor and describes the method through which the assessor may employ
additional deputies. Tenn. Code Ann. § 67-1-506. Accordingly, Petitioner Armstrong improperly
filed under Tenn. Code Ann. § 8-20-101, and the trial court did not have jurisdiction to grant the
requested relief. The Consent Order, insofar as it relates to Petitioner Armstrong, is therefore
vacated.


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         With respect to the other five Petitioners, we also find that the trial court erred when it
granted their requested relief. Under the statute, a petitioner may request additional deputies or
assistants and the salary each should be paid. Tenn. Code Ann. § 8-20-101. Here, Petitioners asked
the trial court to set salaries and benefits (in the form of longevity pay, annual cost of living raises,
and health insurance) for all county employees “regardless of which office.”1 Neither the Petition
nor the Consent Order explain, in any way, the relationship between this group of employees and
Petitioners. The statute’s coverage is not so broad. The trial court lacks authority to set the salaries
of an unspecified (and potentially large) number of employees. Accordingly, the portions of the
Consent Order addressing “all employees” is vacated.

        Finally, we find the remaining portions of the consent order invalid because of additional
procedural defects. Officials petitioning under Tenn. Code Ann. § 8-20-101 must meet their burden
before relief can be granted. Tenn. Code Ann. § 8-20-101(a)(3). Furthermore, Tenn. Code Ann. §
8-20-103(a) provides that “[n]o deputy or deputies or assistants shall be allowed to any office, unless
the actual officer is unable to personally discharge the duties of the office by devoting such officer’s
entire working time thereto....” Id. In Boarman v. Jaynes, 109 S.W.3d 286 (Tenn. 2003), the Court
interpreted the statutory burden as follows:

        The office holder must demonstrate: (1) an inability to discharge the duties of a
        particular office by devoting his or her entire working time thereto; and, (2) the office
        holder must petition the court and show the necessity for assistants, the number of
        assistants required, and the salary each should be paid.

Id. at 291 (citations omitted). Only after the petitioner establishes necessity is the trial court
“empowered to determine the number of assistants needed and their salaries.” Id. Here, the trial
court did not make any findings as to whether Petitioners met this burden. Furthermore, neither the
Petition nor the Consent Order set forth any facts showing the necessity of the requested deputies
and assistants.

        Following Boarman, we find that the trial court erred when approving the Petitioners’
requests without first making a determination on necessity. We reach this conclusion, in part,
because of the parties’ deviation from the procedure set forth in Tenn. Code Ann. § 8-20-102. As
the named defendant, the County Mayor failed to file an answer to the Petition as required by the
statute. Because an Answer was not filed, it could not be included in the court’s permanent records
as required by Tenn. Code Ann. § 8-20-104. Additionally, the trial court did not conduct the
statutorily required hearing on the petition to develop the facts. Tenn. Code Ann. § 8-20-102. In
Johnican v. Williams, No. 02A01-9110-CR-00221, 1992 WL 94715 (Tenn. Ct. App. May 8, 1992),
we held the language of Tenn. Code Ann. § 8-20-102 “requires the court before whom the petition


        1
         The language of the Consent Order is both broad and ambiguous. It is unclear whether this portion of the
Order covers “all county em ployees” or just those “employees subject to the Courthouse Policy and Procedures
Handbook.” Under either meaning, the trial court was not authorized to set the salaries of such an amorphous group
of employees.

                                                       -7-
is brought to conduct a full evidentiary hearing on the matter.” Johnican, 1992 WL 94715, at *2.
These procedures help the trial court reach an informed and reasoned decision; they cannot be
ignored simply to facilitate a hasty–and privately determined–agreement between Petitioners and the
County Mayor. Because these statutory requirements were not followed, we find that the trial court
erred when it signed the parties’ Consent Order.

        For these reasons, the Consent Order entered into by the County Mayor and Petitioners is
vacated in its entirety. This matter is therefore remanded to the Benton County Chancery Court.
Costs on appeal are taxed one-half to the Appellant, Benton County Commission, and one-half to
the six Appellees/Petitioners, for which execution may issue if necessary.




                                                      ______________________________
                                                      J. STEVEN STAFFORD, J.




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