Roberts v. Lowe ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
JOHNNY R. ROBERTS, SHERIFF OF ) C/A NO. 03A01-9610-CC-00333
JOHNSON COUNTY, TENNESSEE, ) April 16, 1997
)
Plaintiff-Appellee, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
) APPEAL AS OF RIGHT FROM THE
v. ) JOHNSON COUNTY CRIMINAL COURT
)
)
)
GEORGE LOWE, COUNTY EXECUTIVE )
OF JOHNSON COUNTY, TENNESSEE, )
)
Defendant-Appellant. ) HONORABLE ARDEN L. HILL, JUDGE
For Appellant For Appellee
WILLIAM B. HAWKINS H. RANDOLPH FALLIN
Grayson, Hawkins & Wright Mountain City, Tennessee
Mountain City, Tennessee
OPINION
AFFIRMED IN PART, AS MODIFIED
REVERSED IN PART
REMANDED Susano, J.
1
This is a suit by Johnny R. Roberts (Roberts)1, Sheriff
of Johnson County, against George Lowe (Lowe), the Johnson County
Executive, for authorization and funding to hire additional
deputies and other employees2 pursuant to T.C.A. § 8-20-101, et
seq. (1993 & Supp. 1996). In its decision of June 3, 1996, the
trial court found that Roberts had proven by a preponderance of
the evidence that in order to fully perform the duties of his
office, he required four additional deputies, one additional
jailer, two new dispatchers, and one part-time bailiff.
Accordingly, the trial court authorized those new positions and
established salaries for each. It also awarded salary increases
for all existing positions, and made all salaries effective
retroactively to January 1, 1996. Lowe appeals, raising five
issues which in substance present the following questions:
1. Did the trial court err in identifying
deputies and other positions by name in the
judgment, and in awarding salary increases
and specific salaries to specifically-named
employees?
2. Did the trial court err in making the
salary increases effective retroactively to
January 1, 1996?
3. Did the trial court err in entering the
“Supplemental Order” of July 23, 1996?
4. Did the trial court err in its
“Supplemental Order” by failing to authorize
the required number of positions and fix
salaries for those positions, and by holding
that the new positions could be used for “any
legitimate activity” of the Sheriff’s
1
The petition in this case was originally filed by Edwin R. Casey,
Roberts’ predecessor as Sheriff of Johnson County. After he was elected
Sheriff, Roberts was substituted as plaintiff.
2
The petition also sought appropriate funding for vehicles, uniforms,
training, and equipment. The trial court determined, however, that its
jurisdiction was limited to deciding the number of necessary employees and
their salaries, and thus it declined to award additional funds for other
purposes. That aspect of the judgment has not been appealed.
2
Department?
5. Does the evidence preponderate against
the trial court’s award of additional
deputies and assistants?
I
Johnson County has a population of 13,7663. At the
time of trial, the Johnson County Sheriff’s Department consisted
of the following employees: one sheriff; one cook; one secretary;
nine deputies; one county investigator; eight jailers; and four
dispatchers. The Department has various responsibilities,
including keeping the peace, patrolling the entire county,
serving process, and operating the county jail, which houses an
average of 40 inmates. In the 1995-96 fiscal year, the total
budget for the Sheriff’s Department and jail was $705,011.96.
Athan Brown, Roberts’ expert witness,4 testified that
Johnson County had a crime index of 22.2, which was higher than
both the national crime index of 18.2 and the state index of
18.8. Brown opined that the Sheriff’s staff should gradually
expand to include 43 employees, increasing to at least 35
employees in 1996. Concluding that the current staff was
insufficient to operate the jail or to discharge the other duties
of the Sheriff’s Department, he recommended the immediate
addition of five deputies, two jailers, and one
investigator/detective. Brown further suggested that salaries
3
According to the 1990 census.
4
The parties stipulated that Mr. Brown was an expert in police
administration. Among other things, he has served as a patrol officer, deputy
sheriff, criminal investigator, chief deputy, police instructor, crime lab and
police academy director, and professor of criminal justice.
3
for the existing positions were inadequate, and he proposed
specific increases of those salaries.
Brown pointed out that comparable counties spend 13.4%
of their total budgets on law enforcement, compared to the 4.0%
expended by Johnson County. He also noted that each citizen of
Johnson County spent $53.50 annually on law enforcement, compared
to the statewide average of $121 per resident. In light of these
statistics and his own observations, Brown concluded that an
increased budget for the Sheriff’s Department and jail was
necessary to enable Roberts and his staff to fulfill their
statutory obligations and operate the jail within acceptable
standards.
Chief Deputy Mark Hutchinson also testified on behalf
of Roberts. He stated that there were insufficient officers to
perform all of the necessary work of the Sheriff’s Department.
Hutchinson described occasions on which the lack of sufficient
deputies had posed a safety threat to an arresting officer, or
had caused an inability to respond promptly to calls for
assistance.
Sheriff Roberts testified that, despite devoting all of
his working time to properly and efficiently conducting the
affairs of the Sheriff’s Department, he has been unable to meet
all of the obligations of his job. At the time of trial, his
deputies were working twelve-hour shifts and were significantly
behind in serving papers. Roberts testified that at a minimum,
he required one additional investigator, five additional road
4
deputies, and two more jailers.
In opposition to Roberts’ case, Lowe maintained that
the Sheriff could properly conduct his affairs within existing
budgetary constraints. He contended that the jail was in
compliance with all requirements imposed by previous inspectors.
He further argued that the number of arrests made and papers
served by a deputy on an average shift was small, and that an
increase in personnel was not necessary. He also testified that
a new emergency-911 system, operated outside of the Sheriff’s
Department, would soon be in effect, thus relieving the Sheriff’s
Department of the obligation to answer 911 calls and rendering
its dispatch positions obsolete.
Lowe also offered the testimony of two members of the
Board of County Commissioners. Each maintained that the Sheriff
possessed sufficient funds and personnel to do his job.
The trial judge found that Roberts had proven, by a
preponderance of the evidence, that additional positions were
necessary for the proper performance of the Sheriff’s duties. He
thus authorized the hiring of four new deputies, one new jailer,
two dispatchers (until such time as the new 911 system became
effective), and a part-time bailiff. The court then established
salaries for each new employee, as well as salary increases for
all existing positions. The trial court’s judgment was entered
on June 3, 1996. Lowe filed his notice of appeal on June 21,
1996. The trial court subsequently entered a supplemental order
on July 23, 1996, purporting to amend its judgment to allow
5
Roberts to use the seven new positions “for any legitimate
activities of the Sheriff’s Department.”
II
An application under T.C.A. § 8-20-101, et seq. (1993 &
Supp. 1996), for authority to employ deputies and to establish
their salaries is treated like any other lawsuit. Dulaney v.
McKamey, 856 S.W.2d 144, 146 (Tenn. App. 1992). Therefore, our
review is de novo upon the record with a presumption of
correctness as to the trial court’s findings, unless the
preponderance of the evidence is otherwise. Rule 13(d),
T.R.A.P.; Dulaney, 856 S.W.2d 144, 146 (Tenn. App. 1992). The
trial court’s conclusions of law come to us free of any such
presumption. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993).
The relevant statutory scheme, T.C.A. § 8-20-101, et
seq. (1993 & Supp. 1996), provides in pertinent part:
T.C.A. § 8-20-101(a)(Supp. 1996)
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 in the following
manner and under the following conditions,
namely:
6
* * * *
(2) The sheriff may... make application to
the judge of the circuit court in the
sheriff’s county, for deputies and
assistants, showing the necessity therefor,
the number required and the salary that
should be paid each; provided, that in the
counties where criminal courts are
established, the sheriff may apply to a judge
of such criminal court; ...
T.C.A. § 8-20-102 (1993)
... the court shall promptly in term or at
chambers have... 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.
T.C.A. § 8-20-103(a) (1993)
No 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, except
for field deputy sheriffs.
The office of sheriff is a constitutional office.
Tenn. Const. art. VII, § 1. Although the duties of sheriffs were
originally established by common law, most are now prescribed by
statute. Smith v. Plummer, 834 S.W.2d 311, 313 (Tenn. App.
1992). The primary5 statutory provisions essentially categorize
those duties into four classes: 1) serving process; 2) attending
the courts; 3) operating the jail; and 4) keeping the peace.
5
Several other statutory provisions enumerate duties of a sheriff. See,
e.g., T.C.A. §§ 5-7-108, 37-1-213, 38-3-102, 41-2-108, and 41-4-101.
7
T.C.A. § 8-8-201 (Supp. 1996); T.C.A. § 8-8-213; Smith, 834
S.W.2d at 313.
III
We first address Lowe’s third and fourth issues, which
concern the supplemental order of July 23, 1996. The record
reveals that Lowe’s notice of appeal was filed on June 21, 1996,
approximately one month before the trial court entered the
supplemental order. There is no indication in the record that
the supplemental order was entered in response to a motion of
either party. On the contrary, the order indicates that the
trial judge, “upon reflection,” had determined that his previous
order “should be clarified.”
The filing of a notice of appeal transfers jurisdiction
to the Court of Appeals. Steele v. Wolfe Sales Co., 663 S.W.2d
799, 802 (Tenn. App. 1983). Consequently, the trial court is
deprived of jurisdiction to take further action on the case, and
an order entered thereafter by the lower court is of no effect.
Huntington v. Lumpkin, 281 S.W.2d 403, 406 (Tenn. App. 1954);
James v. Williams, 99 S.W.2d 831, 832 (Tenn. App. 1936). Thus,
the supplemental order entered by the trial court is void and of
no effect upon the court’s judgment of June 3, 1996. We agree
with the appellant that the supplemental order should not have
been entered.
IV
8
In another issue, Lowe contends that the trial court
erred by awarding specific salaries and salary increases to
specifically-named employees of the Sheriff’s Department. In the
judgment, the trial court listed the salary of each position and
identified each position by including, in a column captioned “Now
Held By,” the name of the employee then holding that position.
Lowe argues that in doing so, the trial court exceeded its
authority under T.C.A. § 8-20-104, which contemplates an “order
or decree fixing the number of deputies and salaries.” Id. Lowe
cites the case of Moore v. Cates, 832 S.W.2d 570 (Tenn. App.
1992) for the proposition that the trial court is without
authority to identify deputies by name and award them salary
increases, and thus is limited to authorizing the required number
of deputies and fixing salaries for the positions. Id.
We disagree with Lowe’s contention. Upon review of the
judgment, it appears that the trial court included the names of
the employees in the “Now Held By” column merely for
identification purposes. This is in contrast to the Moore case,
wherein the trial court specifically set forth the “amount of
increases and salaries for the present employees of the...
Sheriff’s Department,” presumably for the purpose of awarding
those salaries to particular individuals. Id. at 571. In the
instant case, we find no error in the trial court’s inclusion of
the names of employees then holding positions in the Sheriff’s
Department. Since many of those positions merited different
salaries within the same job category, it was necessary to
distinguish one position from another in order to match each new
salary with its proper position. Thus, we find that the trial
9
court’s inclusion of the employees’ names was for identification
purposes only, i.e., intended to assign each salary to its
corresponding position, and not to a particular employee. We
therefore find no error in that aspect of the judgment.
V
Lowe also insists that the evidence preponderates
against the trial court’s finding that additional employees were
necessary to enable Roberts to perform his duties as sheriff.
A trial court’s authorization of additional employees
is subject to the prerequisite that the sheriff demonstrate an
inability to “properly and efficiently conduct the affairs of
[his or her] office by devoting [his or her] entire working time
thereto.” T.C.A. § 8-20-101(a)(Supp. 1996). As stated in
Cunningham v. Moore County, 604 S.W.2d 866 (Tenn. App. 1980), the
sheriff is required
to prove in numerical quantity the number of
times per day, week, month or year the
Sheriff is called upon to perform the
statutory duties of his office, that he and
his previously authorized employees have
devoted their full working time to the
performance of such duties and that their
combined efforts have not been sufficient to
perform all such duties, some of which have
not been performed for this reason.
Id. at 868. In Cunningham, the court affirmed the trial court’s
dismissal of a similar claim. The court noted that, among other
things, the sheriff had failed to introduce any evidence
10
regarding the frequency of arrests, complaints, and service of
process. The sheriff likewise had provided no information as to
the number of inmates in the county jail, which was occupied only
part-time. As a result, he had failed to carry the burden of
proving his inability to discharge, under existing conditions,
the statutory duties of his office.
By contrast, in the instant case, Roberts presented
evidence pertaining to each of the above-quoted requirements. In
addition to his own testimony, he offered that of his chief
deputy, Mark Hutchinson; both testified that the current budget
was inadequate, and that the existing staff could not perform all
of the duties of the Sheriff’s Department. Roberts provided
specific, quantitative evidence concerning calls received,
arrests made, and papers served. The evidence indicates that the
deputies were working twelve-hour shifts, were having difficulty
responding promptly to calls, and had fallen behind on serving
over 300 papers. Furthermore, the expert witness, Athan Brown,
testified regarding the results of his extensive study of the
Sheriff’s Department and jail. His findings indicate that
existing personnel were inadequate to operate the jail and keep
the peace.
In opposition to Roberts’ case, Lowe essentially
offered only his own opinion, and the opinion of two members of
the Board of County Commissioners, that Roberts possessed ample
funding and personnel to conduct his affairs. He presented no
expert analysis to rebut that of Brown, and no testimony by any
law enforcement official to contradict that of Roberts and
11
Hutchinson.
From the evidence before him, the trial judge concluded
that additional officers were necessary for the proper and
efficient performance of the sheriff’s statutory duties. He thus
awarded the Sheriff’s Department four new deputies, one
additional jailer, and a part-time bailiff. The trial judge also
determined that two additional dispatchers should be retained
until the implementation of the new 911 system. He then
established salaries for all new and existing positions.
In reaching the conclusions that he did, the trial
judge was clearly influenced by the testimony of Roberts and
Brown. We note that the trial court is in the best position to
assess the credibility of the witnesses, and such determinations
are entitled to great weight on appeal. Bowman v. Bowman, 836
S.W.2d 563, 566 (Tenn. App. 1991). Upon review of the record, we
are unable to say that the evidence preponderates against most of
the trial court’s findings regarding the new salaries and the
necessity of additional employees. Dulaney v. McKamey, 856
S.W.2d 144, 147 (Tenn. App. 1992). We uphold the trial court’s
award of four additional deputies, one jailer, and a part-time
bailiff. We also affirm its modification of the salaries for all
existing positions and its establishment of salaries for the new
deputies, jailer, and bailiff.
With regard to the award of two additional dispatchers,
however, we believe that the evidence does preponderate against
the findings of the trial court. At the time of trial, the
12
Sheriff’s Department employed four dispatchers. In his report
and testimony, Brown did not recommend additional dispatchers; he
merely suggested that there be one chief dispatcher and three
other dispatchers. Furthermore, Roberts testified as follows:
Q. Now, you have -- you currently have on
the payroll four dispatchers?
A. Correct.
Q. And is that sufficient?
A. Yes sir.
The record is devoid of evidence that the Sheriff’s
Department needed additional dispatchers. We therefore reverse
the trial court’s award of those two positions. We affirm the
salaries set by the trial judge for the four original dispatch
positions.
VI
The final issue for our consideration concerns the
trial court’s retroactive application of the new salaries to
January 1, 1996. As noted earlier, the trial was held on May 23,
1996, and the court’s judgment was entered on June 3, 1996.
T.C.A. § 8-20-101, et seq. (1993 & Supp. 1996),
contains no provision for an award of retroactive raises, nor has
Roberts cited any authority in his brief to support the trial
court’s action. We therefore conclude that the trial court
abused its discretion in making the salaries effective
retroactively.
13
For the foregoing reasons, so much of the trial court’s
judgment as pertains to the effective date of the new salaries for the
various positions is modified to reflect that they are effective June
3, 1996, the date of the trial court’s judgment. We reverse that
portion of the judgment that provides for the hiring of two
14
additional dispatchers, each at an annual salary of $13,000. The
trial court’s “supplemental order” of July 23, 1996, is held void
for lack of jurisdiction. The remainder of the trial court’s
judgment is affirmed. Costs on appeal are assessed against the
appellant and his surety. This case is remanded to the trial
court for such further proceedings as are necessary, consistent
with this opinion.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_________________________
Houston M. Goddard, P.J.
_________________________
Herschel P. Franks, J.
15