                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 19, 2010 Session

                DONNA ROWLAND v. RISHI K. SAXENA, M.D.

                Appeal from the Chancery Court for Rutherford County
                 No. 09-0718CV     Larry B. Stanley, Jr., Chancellor


                No. M2010-00640-COA-R3-CV - Filed January 31, 2011


State representative appeals dismissal of her suit to recover attorney fees incurred as a result
of her former opponent’s contest of the election. The trial court held that the Tennessee
Constitution and statutes governing election contests vest exclusive jurisdiction to decide
contests for the office of state representative, and that, consequently, the court was without
jurisdiction to determine the issue of costs and fees awardable under the statute. We hold
that the chancery court correctly determined that it was without jurisdiction to decide issues
arising under § 2-17-115.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

John L. Ryder and Ashley Austin Martin, Memphis, Tennessee, for the appellant, Donna
Rowland.

Paul W. Ambrosius and W. Justin Adams, Nashville, Tennessee, for the appellee, Rishi K.
Saxena, M.D.

                                          OPINION

       In this case we are called upon to determine whether Tenn. Code Ann. § 2-17-115
allows a chancery court to entertain an action solely to recover counsel fees and costs
incurred in an election contest for a seat in the Tennessee House of Representatives.
I. Introduction

      The facts relevant to this appeal are not disputed. Rishi Saxena ran against Donna
Rowland for election to the Tennessee House of Representatives for the 34th District, located
in Rutherford County. On November 4, 2008 Rep. Rowland defeated Dr. Saxena by a
margin of 11,650 votes, and the election was certified by the Secretary of State.

       On November 14, 2008, Dr. Saxena sent a letter to the Chief Clerk of the House of
Representatives, challenging the validity of the election result. Specifically, Dr. Saxena
charged that Rep. Rowland was not a qualified voter of District 34 because she lived in
another district. Dr. Saxena also noted what he characterized as irregularities in information
and voter list disks provided by the Rutherford County Election Commission. Rep. Rowland
responded by sending a letter to House Speaker Jimmy Naifeh, in which she included her
voter registration card, utilities statement, and lease agreement, all of which she asserted
verified her residency in the 34th District.1

        On January 13, 2009, Rep. Rowland was provisionally seated as Representative for
the 34th House District, pending action by the House to resolve the election challenge. On
March 16 a committee of the House of Representatives was formed to hear the contest and
make a report to the entire House; the hearing was held April 20. After Dr. Saxena presented
his case-in-chief, the committee members voted unanimously to recommend to the House of
Representatives that the challenge be dismissed. An amendment to include a finding that the
complaint was frivolous was adopted unanimously; a second proposed amendment to find
that the complaint was “malicious in nature” failed. The findings of the committee in its
report were:

                1. Rep. Rowland is a resident of District 34; her residence was, and is,
        237 Faldo Dr., Murfreesboro, TN 37128.
                2. Dr. Saxena failed to present a sufficient quantum of proof to indicate
        either:
                    (A) That the number of illegal ballots cast, if any, equaled or
        exceeded the difference between the two candidates, or
                   (B) That fraud or illegality so permeated the conduct of this election
        as to render it uncurably uncertain.
                3. Dr. Saxena’s complaint, being based on deficient reasoning and
        evidence, was frivolous in nature.


        1
         At the time Rep. Rowland filed her qualifying petition for the 2008 election, she resided at 5858
Franklin Road in Murfreesboro. In June 2008, following her divorce, she moved to 237 Faldo Drive in
Murfreesboro.

                                                   -2-
The committee’s recommendations to the House of Representatives were:

              1. That the complaint filed by Rishi K. Saxena with respect to the thirty-
       fourth representative district be dismissed.
              2. That Representative Donna Rowland’s “provisional” status be lifted.
              3. That Representative Rowland be seated as all other members of the
       House of Representatives of the 106th General Assembly are seated.

On April 27, the House of Representatives voted to approve the committee report.

       On May 18, 2009, Rep. Rowland filed suit against Dr. Saxena in Rutherford County
Chancery Court seeking an award of attorney fees, asserting Tenn. Code Ann. § 2-17-115 2
as the jurisdictional basis therefor. Dr. Saxena filed a Tenn. R. Civ. P. 12.02 motion to
dismiss, contending that the court lacked subject matter jurisdiction; that the complaint failed
to state a claim upon which relief could be granted; that sole jurisdiction over Rep.
Rowland’s claims was vested in the Tennessee House of Representatives under Tenn. Code
Ann. § 2-17-102; and that the claims were barred by the First Amendment to the United
States Constitution and Art. 1, § 19 of the Tennessee Constitution. Rep. Rowland filed a
motion for summary judgment, supported by her affidavit, exhibits from the proceeding in
the House of Representatives, and a statement of undisputed material facts.

       The court granted Dr. Saxena’s motion to dismiss, holding that Art. 2, § 11 of the
Tennessee Constitution and Tenn. Code Ann. § 2-17-102 conferred sole jurisdiction on the
General Assembly to decide election contests in the State House and State Senate, and that
the body deciding the election contest should decide the issue of attorney’s fees. The court
reasoned that Tenn. Code Ann. § 2-17-115 did not create an independent cause of action for
attorney’s fees and, consequently, it did not have jurisdiction to determine the issue.




       2
           Tenn. Code Ann. § 2-17-115 provides:

       Costs and a reasonable attorney's fee shall be assessed against the contestant or the appellant
       if the contest or the appeal is maliciously or frivolously prosecuted.




                                                    -3-
        Rep. Rowland appeals, contending that the Chancery Court has subject matter
jurisdiction and requesting that the case be remanded for a determination of the amount of
fees to be awarded. Dr. Saxena raises two additional issues if we determine that the
Chancery Court has jurisdiction of Rep. Rowland’s complaint: (1) whether the House of
Representatives’ failure to award Rep. Rowland her fees is res judicata on the court’s ability
to consider her request for fees; and (2) whether the complaint and this appeal present a non-
justiciable political question entrusted to the House of Representatives.

II. Standard of Review

        The trial court determined, as a matter of law, that it did not have subject matter
jurisdiction of the request for fees because the action arose out of an election contest for
which our constitution and statutes vest exclusive jurisdiction in the House of
Representatives.3 Construction of a statute is a question of law which we review de novo,
without a presumption of correctness of the trial court’s findings. Barge v. Sadler, 70
S.W.3d 683, 686 (Tenn. 2002); Hill v. City of Germantown, 31 S.W.3d 234, 237 (Tenn.
2000); Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d 799, 802 (Tenn. 2000);
Exxonmobil Oil Corp. v. Metro Gov’t of Nashville and Davidson County, 246 S.W.3d 31, 35
(Tenn. Ct. App. 2005).

III. Discussion

        The primary rule of statutory construction is “to ascertain and give effect to the
intention and purpose of the legislature.” LensCrafters, Inc., v. Sundquist, 33 S.W.3d 772,
777 (Tenn. 2000) (citing Worrall v. Kroger, 545 S.W.2d 736 (Tenn. 1977). To determine
legislative intent, we must look to the natural and ordinary meaning of the language used in
the statute itself and examine any provision within the context of the entire statute and in
light of its over-arching purpose and the goals it serves. State v. Flemming, 19 S.W.3d 195,
197 (Tenn. 2000); Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996); Exxonmobil, 246
S.W.3d at 35; T.R. Mills Contractors, Inc. v. WRH Enterprises, LLC, 93 S.W.3d 861, 867


        3
           The court heard Dr. Saxena’s motion to dismiss and Rep. Rowland’s motion for summary
judgment at the same time; the order dismissing the case recited that the court considered “statements of
counsel, the memoranda of laws submitted and the entire case record as a whole.” In ruling on the motion
to dismiss, the court was obliged to take the allegations of the complaint as true. See Pursell v. First Am.
Nat’l Bank, 937 S.W.2d 838, 840 (Tenn. 1996); see also Trau-Med of Am., Inc. v. Allstate Ins. Co., 71
S.W.3d 691, 696–97 (Tenn. 2002). In support of her motion for summary judgment Rep. Rowland filed a
Statement of Undisputed Material Facts; Dr. Saxena responded by stating that the factual allegations
contained in the Statement were undisputed for purposes of ruling on the motion. Neither party asserts on
appeal that there is any issue of fact for trial or that the trial court’s determination of the facts is in any way
deficient or erroneous.

                                                       -4-
(Tenn. Ct. App. 2002). The statute should be read “without any forced or subtle construction
which would extend or limit its meaning.” Nat’l Gas Distributors, Inc. v. State, 804 S.W.2d
66, 67 (Tenn. 1991). As our Supreme Court has said, “[w]e must seek a reasonable
construction in light of the purposes, objectives, and spirit of the statute based on good sound
reasoning.” State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995).

       When construing statutes that are part of a statutory scheme, we are also directed to
look to the context of the particular provision. Our Supreme Court has made the following
observation:

        When statutory provisions are, as in this case, enacted as part of a larger Act,
        “we examine the entire Act with a view to arrive at the true intention of each
        section and the effect to be given, if possible, to the entire Act and every
        section thereof. Where different sections are apparently in conflict we must
        harmonize them, if practicable, and lean in favor of a construction which will
        render every word operative.”

Hill, 31S.W.3d at 238 (quoting Bible & Godwin Constr. Co. v. Faener Corp., 504 S.W.2d
370, 371 (Tenn. 1974)).

        Statutory provisions for contesting the results of elections are contained at Chapter 17
of Title 2 of the Tennessee Code. See Tenn. Code Ann. §§ 2-17-101–117. Tenn. Code Ann.
§ 2-17-101(a) vests jurisdiction to try election contests in chancery court “except as
otherwise expressly provided in this chapter.” Tenn. Code Ann. § 2-17-102 provides that
“contests for the office of representative in the general assembly are decided by the house of
representatives.”4 Tenn. Code Ann. § 2-17-103 vests contests for the election of presidential
and vice-presidential electors in the “presidential electors tribunal,” composed of the
governor, secretary of state, and attorney general and reporter. Tenn. Code Ann. § 2-17-104
commits contests of primary elections to the political party of the candidate. Tenn. Code
Ann. §§ 2-17-105–110 set out procedures to be applied and evidence to be received in an
election contest. Tenn. Code Ann. §§ 2-17-111–115 pertain to powers and responsibilities
given the court or other tribunal which is deciding the contest. Tenn. Code Ann. § 2-17-117
details the circumstances under which the “court, primary board, legislative body or tribunal
having jurisdiction of an election contest” may order a recount and the manner by which the
recount is to be conducted.




        4
          This statute implements Art. II, § 11 of the Tennessee Constitution, which provides that the house
of representatives is “judge[] of the qualifications and election of its members. . . .”


                                                    -5-
        In its entirety, Chapter 17 limits the jurisdiction of chancery court to hear and decide
issues in election contests that are not specifically committed to other tribunals (“otherwise
expressly provided”) in the chapter. There is nothing in the chapter to indicate that the
tribunal which has been designated in the statute to hear and decide the contest—here, the
House of Representatives—does not have the authority and responsibility to resolve all
matters involved in the contest, including making an award of fees pursuant to Tenn. Code
Ann. § 2-17-115. Such authority and responsibility is consistent with the unique ability of
the tribunal hearing the contest to make the prerequisite finding that the contest or appeal was
maliciously or frivolously prosecuted in order to award fees.

       The report of the committee hearing Dr. Saxena’s challenge did not recommend an
award of fees and, indeed, made no mention of Rep. Rowland’s request to the committee that
fees be awarded. The only references in the record to Rep. Rowland’s request are in the brief
she filed in the House of Representatives and in the affidavit she filed in support of her
motion for summary judgment wherein she states:

        19. At the hearing on Defendant Saxena’s election contest, through my
        attorney, I requested the Committee order Defendant Saxena to reimburse me
        for my attorney fees, pursuant to TCA § 2-17-102. Doug Himes, attorney for
        the Committee advised that he had reviewed the statutes, the Tennessee
        Constitution and conferred with the Attorney General’s office regarding the
        issue of attorney fees. Based upon the comments of Mr. Himes, the committee
        found that they did not have the authority to award statutory attorney fees.

       We fail to discern the basis of the determination that the committee did not have
authority to consider Rep. Rowland’s request for attorney fees and to include such
recommendation as it felt appropriate in its report to the entire House of Representatives.5
As noted previously, the Tennessee Constitution vests exclusive jurisdiction to determine the
qualification of members of the House of Representatives in the House. Tenn. Code Ann.
§§ 2-17-101–117 are statutes that guide the conduct of election contests in whatever tribunal
the contest is being conducted. Just as, for example, the Legislature has determined in § 2-
17-109 that poll books, voter lists and ballot applications can be used as evidence in an
election contest in whatever tribunal the contest is held, the Legislature determined in Tenn.
Code Ann. § 2-17-115 that attorneys fees and costs can be awarded by that tribunal. Thus,




        5
            We have reviewed what is represented in the record to be the transcript of the committee’s
discussion with Mr. Himes wherein he states in conclusory fashion: “Tenn. Code Ann. 2-17-115 applies to
judicial, judicially contested elections in chancery and appellate courts. It does not apply to the General
Assembly. It does not grant committees of the General Assembly authority to award attorney’s fees.”

                                                   -6-
while § 2-17-115 does not create a separate cause of action to recover fees, it does constitute
the statutory basis upon which the tribunal makes such an award.6

       Dr. Saxena contends that, if this court determines that the chancery court has subject
matter jurisdiction, then the decision of the House of Representatives not to award Rep.
Rowland fees is res judicata and precludes this court from considering the request. In light
of our finding that the House of Representatives has the authority to consider Rep.
Rowland’s request, this issue is moot. There is no res judicata effect to the House’s action
and Rep. Rowland is free to renew her request.7

        Our resolution of this case on statutory grounds renders unnecessary our consideration
of the constitutional questions presented. See Owens v. State, 908 S.W.2d 923, 926 (Tenn.
1995) (“. . . under Tennessee law, courts do not decide constitutional questions unless
resolution is absolutely necessary for determination of the case and the rights of the parties.”)

IV. Conclusion

        For the foregoing reasons, the judgment of the Chancery Court is AFFIRMED.


                                                          ___________________________________
                                                          RICHARD H. DINKINS, JUDGE




        6
         The chancery court would have jurisdiction in the event it became necessary to file suit to collect
the award as in any other action to collect a debt.
        7
           Res judicata is a claim preclusion doctrine. Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn.
1987). In order for the doctrine to apply, the prior judgment must have been final and concluded the rights
of the parties on the merits. Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995).

                                                    -7-
