Kenneth Brown, Sandra McCulley, and Shawn McCulley v. Samir Shtaya

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
In this case, we address the bond requirements for an appeal from General Sessions Court
to Circuit Court. The plaintiff property owners were leasing commercial space to the
defendant. The plaintiffs filed a forcible entry and detainer action against the defendant in
General Sessions Court. During the pendency of the proceedings, the plaintiffs allegedly
locked the defendant out of the property prematurely, causing property damage to the
defendant. The defendant then filed a cross-claim in the original General Sessions Court
lawsuit for unlawful ouster. The defendant also filed a separate action in the General
Sessions Court based on the same allegations of unlawful ouster. The General Sessions
Court consolidated the two cases for trial. Ultimately, the General Sessions Court held in
favor of the plaintiffs on their forcible entry and detainer claim and awarded attorney fees
under the lease. As to the defendant’s cross-claim and separate lawsuit based on unlawful
ouster, the General Sessions Court found in favor of the defendant and awarded damages.
The plaintiffs sought a de novo appeal to Circuit Court of the rulings in favor of the
defendant on his cross-claim and separate claim; the defendant appealed the Circuit Court’s
ruling in favor of the plaintiffs. In doing so, all of the appellants — the plaintiffs and the
defendant — filed notices of appeal and paid $211.50 to the General Sessions Court clerk,
pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). None of the appellants filed any further bond at
that time. The defendant filed a motion to dismiss the plaintiffs’ appeals, arguing that the
Circuit Court lacked subject-matter jurisdiction because they had not complied with the
appeal-bond requirement in T.C.A. § 27-5-103. The Circuit Court granted the motion and
dismissed the plaintiffs’ appeals. The Circuit Court also dismissed the defendant’s appeal
sua sponte based on the same reasoning. The plaintiffs now appeal to this Court. We reverse
the Circuit Court’s dismissal of the plaintiffs’ appeals in light of our recent decision
Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL
593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
Reversed in Part and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD, J.,
joined. A LAN E. H IGHERS, P.J., W.S., filed a dissenting opinion.
Gregory C. Krog, Jr., Memphis, Tennessee, for the Plaintiffs/Appellants Kenneth Brown,
Sandra McCulley, and Shawn McCulley
S. Joshua Kahane, Memphis, Tennessee, for the Defendant/Appellee Samir Shtaya
OPINION
F ACTS AND P ROCEEDINGS B ELOW
The facts relevant to the issue in this appeal are undisputed. Plaintiff/Appellants Kenneth
Brown and Sandra McCulley (collectively, “Plaintiffs”) jointly owned commercial property
located at 2156 Young Avenue Memphis, Shelby County, Tennessee. Defendant/Appellee
Samir Shtaya (“Defendant Shtaya”) leased the property from the Plaintiffs for the purpose
of operating a restaurant.
On January 25, 2010, the Plaintiffs filed a forceable entry and detainer (“FED”) warrant in
the General Sessions Court of Shelby County, Tennessee, against Defendant Shtaya, seeking
possession of the property. In this opinion, we refer to that case as the “FED action.” On
February 17, 2010, the General Sessions Court conducted a trial and entered a judgment in
favor of the Plaintiffs, awarding them possession of the property. The judgment included a
handwritten notation, stating that “no writ shall issue prior to April 19, 2010.” In later
proceedings related to the FED action, the General Sessions Court explained that the notation
to delay issuance of the writ was based on the court’s understanding that “moving a
restaurant was something that you couldn’t do in ten days,” and that Defendant Shtaya
needed “sufficient time to locate a place and to get his items moved into the new place.”
The General Sessions Court scheduled a trial for April 19, 2010, on the Plaintiffs’ claim for
attorney fees in the FED action, as well as the Plaintiffs’ claim for money damages. The trial
was later rescheduled for April 22, 2010. In the meantime, however, apparently acting as
though a writ of possession had been issued, the Plaintiffs changed the locks on the subject
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property and cut off the electricity.1 According to Defendant Shtaya, by the time he finally
gained access to the property, much of his personal property was missing and what remained
was severely damaged.
On April 21, 2010, before the scheduled trial, Defendant Shtaya filed a cross-claim in the
FED action, alleging that the Plaintiffs had denied him access to the building and that the
Plaintiffs were liable to him for unlawful ouster, trespass, conversion, theft, breach of
contract, willful and wanton misconduct, extreme and outrageous conduct, breach of the
peace, punitive damages, and attorney fees. On the same day, Defendant Shtaya filed a
separate civil lawsuit against the Plaintiffs in the same General Sessions Court; in this
separate lawsuit, he made the same exact allegations that he made in his cross-claim in the
FED action. In addition, in this separate action, Defendant Shtaya added as a defendant
Shawn McCulley, the property manager of the subject property and the son of co-defendant
Sandra McCulley. In this opinion, we refer to this separate action as the “unlawful ouster
case.”
On April 22, 2010, the General Sessions Court commenced the trial as scheduled. It heard
evidence as to the Plaintiffs’ attorney fees incurred in the FED action, as well as evidence
on Defendant Shtaya’s unlawful ouster case. The matter was not concluded, however; the
General Sessions Court continued it to hear further evidence at a later date.
On July 14, 2010, the General Sessions Court reconvened the trial on the remaining issues
in both the FED action and the unlawful ouster case. At the conclusion of the trial, the
General Sessions Court awarded the Plaintiffs $4,400 in attorney fees as the prevailing party
in the FED action, in accordance with the parties’ lease agreement. On Defendant Shtaya’s
cross-claim, the General Sessions Court held in favor of Defendant Shtaya and awarded
damages against the Plaintiffs in the maximum jurisdictional limit of $24,999.99, plus
attorney fees of $8,333.33 and court costs.
On the same day, July 14, 2010, the General Sessions Court granted a separate judgment in
favor of Defendant Shtaya against the Plaintiffs and Shawn McCulley in the unlawful ouster
case. Two days later, however, the General Sessions Court judge, apparently with the intent
of making a correction, overwrote the judgment language and signed a stamp indicating that
the separate unlawful ouster action was “dismissed” as of July 16, 2010.
On July 23, 2010, Defendant Shtaya filed a notice of appeal in the FED action and paid
$211.50 to the General Sessions Court clerk for the appeal, which included the $150 standard
1
Even though a hearing was not conducted on April 19, 2010, the Circuit Court would later comment that
this is the date on which “all of the problems really began to arise.”
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court cost for filing appeals from General Sessions Court to Circuit Court set out in
Tennessee Code Annotated § 8-21-401(b)(1)(C)(i).2 On the same day, Plaintiffs Kenneth
Brown and Sandra McCulley each filed a notice of appeal and each paid the General Sessions
Court clerk $250. The General Sessions Court clerk docketed the appeals filed by Plaintiffs
Kenneth Brown and Sandra McCulley; they were filed with the Circuit Court under docket
number CT-003801-10. In processing the appeal, the General Sessions Court clerk’s office
refunded the two Plaintiffs $38.50 each and credited each with paying $211.50. The General
Sessions Court clerk then retained $15 each from the appeals of the Plaintiffs and Defendant
Shtaya and sent the remaining amounts paid — $196.50 each — to the Circuit Court clerk.
Defendant Shtaya did not at that time file a separate appeal of the dismissal of the unlawful
ouster case.
On August 5, 2010, Defendant Shtaya filed a motion to amend his Circuit Court complaint
to make a more definite statement. In this pleading, Defendant Shtaya listed the Plaintiffs
and Shawn McCulley as opposing parties, even though Shawn McCulley was not a party to
the original FED action. The Plaintiffs and Shawn McCulley filed a response opposing
Defendant Shtaya’s motion to amend; they contended, among other things, that the proposed
amended complaint was barred by the doctrine of res judicata, because no appeal had been
taken from the order of dismissal entered in the separate unlawful ouster case.
According to the Plaintiffs and Shawn McCulley, Defendant Shtaya then filed a motion in
the General Sessions Court to set aside the dismissal of the separate unlawful ouster case.
He asserted in the motion that a “clerical mistake” had been made pursuant to Rule 60.01 of
the Tennessee Rules of Civil Procedure.
On August 27, 2010, the General Sessions Court held a hearing on Defendant Shtaya’s
motion to set aside.3 At the conclusion of the hearing, the General Sessions Court announced
to the parties that it intended to set aside its earlier dismissal in the unlawful ouster case
based on a clerical error, and that it intended to enter a judgment in the unlawful ouster case
against the Plaintiffs and Shawn McCulley for the full amount of the judgment, as entered
2
This provision, under a section titled “Fees in civil cases in circuit and chancery court,” states:
(1)(C) In the following specific types of civil actions, the clerk shall charge a standard court
cost of one hundred fifty dollars ($150) at the institution of a case:
(i) Appeals to the circuit . . . court from . . . general sessions court . . . .
Tenn. Code Ann. § 8-21-401(b)(1)(C)(i) (2005).
3
The appellate record does not include a transcript of that hearing.
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in the cross-claim in the FED action. Despite this announcement at the hearing, the General
Sessions Court did not enter a written order memorializing its oral ruling.
Assuming that the General Sessions Court had entered a written order memorializing its oral
ruling, the Plaintiffs and Shawn McCulley filed a notice of appeal with the General Sessions
Court clerk, appealing the non-existent “judgment entered on [Defendant Shtaya’s] Rule
60.01 motion in this case on August 27, 2010.” In doing so, each of them filed a notice of
appeal and paid the General Sessions Court Clerk $211.50. The General Sessions Court
clerk docketed this appeal; it was filed by the Circuit Court under a different docket number,
Circuit Court docket number CT-040711-10.
On February 24, 2011, Defendant Shtaya filed an amended complaint in the Circuit Court,
which set out in more detail the damages that he had suffered from the conduct of the
Plaintiffs and Shawn McCulley. On the same day, February 24, 2011, the Circuit Court
entered an order consolidating the two appeals from the General Sessions Court.
On March 28, 2011, the Plaintiffs and Shawn McCulley filed a motion to dismiss Defendant
Shtaya’s amended complaint. They asserted in the motion, among other things, that the
doctrine of res judicata barred the complaint based on the fact that the separate unlawful
ouster claim was not properly appealed to Circuit Court.
On July 29, 2011, the Circuit Court conducted a hearing on the motion to dismiss Defendant
Shtaya’s amended complaint. According to the Plaintiffs and Shawn McCulley, the Circuit
Court sua sponte at the hearing produced a copy of this Court’s Rule 10 memorandum
opinion in University Partners Development v. Bliss, No. M2008-00020-COA-R3-CV, 2009
WL 112571 (Tenn. Ct. App. Jan. 14, 2009).4 Citing that case, the Circuit Court expressed
doubt about whether the Circuit Court had subject-matter jurisdiction over the appeal at all,
because none of the parties who had appealed from General Sessions had filed a surety bond
pursuant to Tennessee Code Annotated § 27-5-103(a). That statute, which is central to this
appeal, provides as follows:
(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.
4
Under Rule 10 of the Court of Appeals of Tennessee, an opinion designated under the Rule is not to be cited
or relied upon in a separate case. See Tenn. Ct. App. R. 10.
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Tenn. Code Ann. § 27-5-103 (2000). At the hearing, the Circuit Court gave the parties until
August 12, 2011, to file a written response to the concern raised about the Circuit Court’s
subject-matter jurisdiction.
On August 3, 2011, Defendant Shtaya responded to the Circuit Court judge’s concerns by
filing a motion to dismiss the two General Sessions Court appeals filed by the Plaintiffs and
Shawn McCulley, contending that the appeals had not been properly perfected for failure to
file appeal bonds pursuant to Section 27-5-103. Because these appellants merely paid the
required court costs but did not file an appeal bond to secure the “costs of the appeal,”
Defendant Shtaya argued, the Circuit Court lacked jurisdiction over the appeals.
On August 11, 2011, the Plaintiffs and Shawn McCulley filed a report to the Court, attaching
affidavits of General Sessions Court Deputy Clerk Dewayne Bevill, Circuit Court Deputy
Clerk Sheri Carter, and counsel of record. The affidavits indicated that, at the time the
appeals were filed, each appellant paid $211.50. The affidavits also indicated that, when the
payments were forwarded to the Circuit Court clerk’s office, they were recorded as
“payments for the appellate cash bond . . . .”
On September 1, 2011, the Plaintiffs and Shawn McCulley filed a direct response to
Defendant Shtaya’s motion to dismiss, as well as supporting affidavits. One affidavit
indicated that, on March 6, 2006, the effective date of an amendment to Section 8-21-401,
the General Sessions Court clerk’s office had implemented a procedure whereby an appeal
bond was no longer required by the clerk; rather, an appeal would be accepted by the General
Sessions Court clerk and forwarded to the Circuit Court clerk upon the filing of a notice of
appeal “and either the payment of $211.50 to the General Sessions Court Clerk, or execution
of a pauper’s oath.” In their response, the Plaintiffs and Shawn McCulley requested
permission to amend the cash appeal bonds in the event the Circuit Court deemed them
insufficient.5
On September 23, 2011, the Circuit Court conducted a hearing on Defendant Shtaya’s motion
to dismiss. At the conclusion of the hearing, expressly relying on University Partners, the
Circuit Court held that the appeals filed by the Plaintiffs and Shawn McCulley were not
properly perfected because none had filed a surety bond at the time the standard court cost
5
In support of their request for permission to amend the cash appeal bonds to meet the jurisdictional
requirements, the Plaintiffs and Shawn McCulley cited Tejwani v. Trammel, No. 02A01-9103CV00036,
1991 WL 136224 (Tenn. Ct. App. July 26, 1991), in which the bond for the appeal from General Sessions
Court to Circuit Court was inadvertently not executed. The appellate court in Tejwani observed that “once
the bond is filed, the courts have been liberal in allowing amendments to cure defects in an appeal bond” but
construed the bond as a valid appeal bond. Id. at *1.
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of $211.50 was paid.6 Based upon this oral ruling, Plaintiffs and Shawn McCulley filed a
motion to dismiss Defendant Shtaya’s appeal for failure to perfect his appeal under the same
reasoning. On October 28, 2011, the Circuit Court entered a written order consistent with
its oral ruling in both cases, concluding that neither the Plaintiffs and Shawn McCulley nor
Defendant Shtaya properly perfected appeals of their General Sessions Court judgments.
Accordingly, it dismissed the appeals of the Plaintiffs, Shawn McCulley, and Defendant
Shtaya.
On the same day that the Circuit Court entered its written order dismissing the case, this
Court issued its decision in Carter v. Batts, 373 S.W.3d 547, 551 (Tenn. Ct. App. 2011). In
Carter, the appellate court held that the Circuit Court had subject-matter jurisdiction over an
appeal from General Sessions Court where the appellant had “paid a cost bond” in the form
of a check to perfect its appeal.
On November 22, 2011, based on Carter, the Plaintiffs and Shawn McCulley filed motions
in both cases pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure to alter or
amend the Circuit Court’s decision, asking that the dismissal of their appeals be set aside.
In support of the motions, they attached the affidavit of Circuit Court Deputy Clerk Sharon
Smith, as well as a copy of the Circuit Court’s records in Carter v. Batts. The records
demonstrated that, in filing their appeal to Circuit Court, the appellants in Carter v. Batts had
written a check for $211.50 to the General Sessions Court clerk’s office and submitted it
along with their notice of appeal. Under those circumstances, the Plaintiffs and Shawn
McCulley pointed out, the appellate court in Carter had held that the appellants perfected
their appeal and the Circuit Court had jurisdiction over the case.
On January 18, 2012, the Plaintiffs and Shawn McCulley filed a supplemental memorandum
of law in support of their Rule 59.04 motions to alter or amend. They attached an order
issued by this Court in Carter v. Batts, denying a petition to rehear. In the petition, the
appellants in Carter had argued to the appellate court that its ruling should be reconsidered
based on University Partners. The petition to rehear was denied. By denying the motion to
reconsider in Carter, the Plaintiffs and Shawn McCulley argued, the appellate court had
implicitly rejected the holding in University Partners.
On February 17, 2012, the Circuit Court conducted a hearing on the Rule 59.04 motions to
alter or amend the judgments in the consolidated cases. After hearing the attorneys’
arguments, the Circuit Court adhered to its original orders and denied the motions to alter or
amend. On March 2, 2012, the Circuit Court entered a written order denying the motions to
6
After hearing the attorneys’ arguments, the trial judge commented, “I’m not at all happy with what I think
I have to do in this case” and added, “I’ll be quite happy if I’m reversed on this case.”
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alter or amend. From this order, the Plaintiffs and Shawn McCulley now appeal in both
cases.7
On March 23, 2012, the Circuit Court entered an order consolidating the two Circuit Court
cases for all purposes, including for purposes of appeal, effective nunc pro tunc to February
24, 2011, the date of the earlier order of consolidation. On March 30, 2012, the Circuit Court
entered an order staying enforcement of the judgment pending appeal.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
The Plaintiffs and Shawn McCulley (hereinafter “Appellants”) raise many different issues
for our review, all of which challenge the Circuit Court’s dismissal of their appeals for lack
of subject-matter jurisdiction based on a failure to comply with Section 27-5-103. We
summarize those issues as follows:
1. Whether the payment of the “standard court cost” in Section 8-21-401
satisfies the requirement in Section 27-5-103(a) to “give bond with good
security . . . for the costs of the appeal”?
2. Whether the Circuit Court erred by refusing to permit them to amend their
appeal bond?
3. Whether the action of the General Sessions Court clerk, in accepting
$211.50 as sufficient security and in transmitting a perfected appeal to the
Circuit Court, constitutes the “grant of an appeal” under Section 27-5-103(a)
so as to vest jurisdiction in the Circuit Court?
7
Defendant Shtaya also filed a notice of appeal from the Circuit Court’s March 2, 2012. He did not, however,
argue in his appellate brief that the dismissal of his General Sessions Court appeal should be reversed. Quite
the contrary, he argued in his brief that the trial court’s decision was correct. In an attempt to preserve his
own appeal from General Sessions Court, however, Defendant Shtaya requested in a footnote in his appellate
brief that, “[i]n the event [that] the Court does conclude that the Trial Court’s dismissal should be reversed,
. . . the Circuit Court’s dismissal of its General Sessions appeal likewise be reversed and remanded.” Shtaya
Appellate Brief at 15 n.10. Respectfully, we cannot grant this request, because Defendant Shtaya did not
preserve his argument in either the Circuit Court nor in this Court. Issues not raised in the trial court are
waived on appeal. Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). Even if an argument is properly
raised in the trial court, the issue is waived on appeal if it is not stated in the appellate brief as an issue on
appeal and supported by argument in the brief. See Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn.
Ct. App. 2006). For these reasons, we must conclude that the propriety of the Circuit Court’s dismissal of
Defendant Shtaya’s General Sessions Court appeal is not properly before this Court, and we do not address
that issue in this appeal.
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4. Whether Section 8-21-401 as amended in 2005 worked an implied repeal
of Section 27-5-103?
5. Whether the Circuit Court’s grant of Defendant Shtaya’s motion to dismiss,
which deprived them the right to a de novo appeal and a jury trial in Circuit
Court, constitutes a deprivation of the Appellants’ due process rights?
Subject-matter jurisdiction implicates a court’s power to adjudicate a particular case or
controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Earls v. Mendoza, No.
W2010-01878-COA-R3-CV, 2011 WL 3481007, at *5 (Tenn. Ct. App. Aug. 10, 2011). “In
the absence of subject-matter jurisdiction, a court cannot enter a valid, enforceable order.”
Earls, 2011 WL 3481007, at *5 (citing Brown v. Brown, 281 S.W.2d 492, 497 (Tenn.
1955)). When subject-matter jurisdiction is questioned, we must ascertain whether the
Tennessee Constitution, the Tennessee General Assembly, or the common law have
conferred upon the court the power to adjudicate the case before it. Id. (citing Staats v.
McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006)). “Since a determination of whether
subject matter jurisdiction exists is a question of law, our standard of review is de novo,
without a presumption of correctness.” Northland Ins. Co. v. State, 33 S.W.3d 727, 729
(Tenn. 2000).
A NALYSIS
Under Section 27-5-103, quoted in full above, a party who seeks to appeal from General
Sessions Court to Circuit Court must do two things: (1) file a notice of appeal, and (2) either
“give bond with good security . . . for the costs of the appeal” or, alternatively, file an
affidavit of indigency. Sturgis v. Thompson, No. W2010-02024-COA-R3-CV, 2011 WL
2416066, at *2-3 (Tenn. Ct. App. June 13, 2011), perm. app. denied (Tenn. Sept. 21, 2011).
These requirements are jurisdictional, and the Circuit Court does not acquire subject-matter
jurisdiction over the appeal unless these prerequisites are satisfied. Id. at *3 (citing Discover
Bank v. McCullough, No. M2006-01272-COA-R3-CV, 2008 WL 245976, at *8 (Tenn. Ct.
App. Jan. 29, 2008)); see also Carter v. Batts, 373 S.W.3d 547, 551 (Tenn. Ct. App. 2011),
perm. app. denied (Tenn. Apr. 11, 2012); Brady v. Valentine, No. 01-A-019707CV00308,
1998 WL 83746, at *2 (Tenn. Ct. App. Feb. 27, 1998). “The failure of an appellant from
general sessions court to comply with the statutory security requirement means that the
circuit court never acquires subject matter jurisdiction over the appeal . . . .” Sturgis, 2011
WL 2416066, at *3 (citing Discover Bank, 2008 WL 245976, at *8); see Carter, 373 S.W.3d
at 551 (noting that an appeal is not perfected unless the security requirement is satisfied).
The primary issue raised by the Appellants in this appeal is whether the payment of $211.50
satisfies the requirement in Section 27-5-103 to “give bond with good security . . . for the
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costs of the appeal.” This Court recently addressed this issue in Bernatsky v. Designer Baths
& Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb.
15, 2013). In Bernatsky, as in the instant case, the parties appealing from the General
Sessions Court judgment filed a notice of appeal and paid $211.50 to the General Sessions
Court clerk, as the “standard court cost” of the appeal under Section 8-21-401(b)(1)(C)(i).8
The Circuit Court dismissed the case for lack of subject-matter jurisdiction based on the
appellants’ failure to file an appeal bond pursuant to Section 27-5-103(a).Bernatsky, 2013
WL 593911, at *2. The appellants appealed the dismissal to this Court.
On appeal, the Bernatsky Court reversed the conclusion of the Circuit Court and held that
the $211.50 payment satisfied the requirement to give bond for the costs of the appeal to
Circuit Court set forth in Section 27-5-103(a). Id. at *19. The Bernatsky Court held that
Section 27-5-103 was ambiguous, because it was imprecise and could reasonably be
interpreted in more than one way. Id. at *7. It then construed Section 27-5-103 and Section
8-21-401 together, considering the language and legislative history of both statutes, as well
as the relevant caselaw. After doing so, the Bernatsky Court held that giving a cash bond
of $211.50, which included the $150 “standard court cost” for such appeals under Section
8-21-401(b)(1)(C)(i), satisfied the requirement in Section 27-5-103(a) to “give bond with
good security . . . for the costs of the appeal.” In reaching this conclusion, Bernatsky
specifically overruled University Partners, the case cited by the Circuit Court below, as well
as 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). Id. at *19 & n.21. Thus,
Bernatsky reversed the Circuit Court’s dismissal of the case and remanded for further
proceedings.
Certainly the procedural history of the instant consolidated cases is more complicated than
the procedural setting in Bernatsky. Nevertheless, the pivotal issue in the instant appeal is
precisely the issue that was addressed in Bernatsky. In the instant case, the Appellants filed
timely notices of appeal and contemporaneously paid $211.50 — which included the
“standard court cost” of $150 — to the General Sessions Court clerk. No surety bond was
filed. The Bernatsky Court specifically held that payment of the $211.50 cash bond was
sufficient under Sections 27-5-103 and 8-21-401 to confer subject-matter jurisdiction on the
Circuit Court. Id. at *19.
8
In the instant case, the Plaintiffs attempted to pay the General Sessions Court clerk $250 to perfect their
appeal, but the clerk’s office refunded them each $38.50, deeming $211.50 to be sufficient to cover the costs
of the appeal. In Bernatsky, we recognized that a $250 surety or cash bond was held to be acceptable in
some older cases. See Bernatsky, 2013 WL 593911, at *7-11 & n.9.
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In light of Bernatsky, we hold that the Appellants’ actions in this case were sufficient to
perfect their appeal under Section 27-5-103(a). Accordingly, we must respectfully reverse
the Circuit Court’s decision insofar as it dismissed the Appellants’ appeals from the General
Sessions Court, and we remand for further proceedings. The propriety of the trial court’s
dismissal of Defendant Shtaya’s General Sessions Court appeal was not presented as an issue
in this appeal, so our decision herein does not affect that portion of the trial court’s order.9
This conclusion pretermits all other issues raised in this appeal.
C ONCLUSION
The decision of the Circuit Court is reversed in part as set forth herein, and the cause is
remanded for further proceedings consistent with this opinion. Costs on appeal are to be
taxed to Appellee Samir Shtaya, for which execution may issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
9
See supra note 7.
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