Jim Hammond, Sheriff of Hamilton County v. Chris Harvey ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 18, 2012
JIM HAMMOND, SHERIFF OF HAMILTON COUNTY ET AL. v. CHRIS
HARVEY ET AL.
Appeal from the Chancery Court for Hamilton County
No. 11-0215 W. Frank Brown, III, Chancellor
No. E2011-01700-COA-R3-CV - Filed February 29, 2012
Six sergeants (collectively “the Sergeants”) employed by Jim Hammond, the Sheriff of
Hamilton County (“the Sheriff”), filed a grievance with the Hamilton County Sheriff’s Office
Civil Service Board (“the Board”) complaining that there is an unlawful disparity in pay
among the 19 sergeants on the force. The Board found a disparity and ordered the Sheriff
“to equalize their pay and if all [s]ergeants do the same job that they should be paid the same
if there is no written criteria to establish standards.” The Sheriff appealed1 to the trial court
by petition for a writ of certiorari. The court (1) held that the Board was without authority
to order the Sheriff to equalize the pay of the 19 sergeants and (2) declared the Board’s
decision “null and void.” The Sergeants appeal. We modify the trial court’s judgment and
remand to the Board with instructions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Modified; Case Remanded with Instructions
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Harold L. North, Jr., and Tom Greenholtz, Chattanooga, Tennessee, for the appellants, Chris
Harvey, Ricky Jones, Mark King, Mark Kimsey, Mark Williams and Jody Mays.
R. Dee Hobbs, Chattanooga, Tennessee, for the appellees, Jim Hammond, Sheriff of
Hamilton County, and Hamilton County, Tennessee.
1
Hamilton County joined in the Sheriff’s petition because the County would be responsible for
funding any pay increases. The County is also a party to this appeal. For the sake of brevity and simplicity,
we have limited our discussion of the parties to the Sheriff and the Sergeants.
OPINION
I.
There is little rhyme or reason to the pay scale of the individuals holding the rank of
sergeant in the Hamilton County Sheriff’s Office. Don Gorman, director of administration
for the Sheriff, admitted that there “[a]bsolutely” is “a pay disparity among the class of
sergeants.” All corporals in the Sheriff’s Office make the same amount. The same is true
of those holding the rank of captain. The salaries of the various sergeants, however, range
from a low of approximately $43,000 to a high of approximately $49,000. These differences
in pay are attributable to a variety of factors including the Sheriff’s “discretion.” Employees
who are promoted from one rank to another are never paid less than what they were earning
just prior to their promotion. Thus, some deputies, who were already making more than
some of the sergeants, have been promoted to the rank of sergeant with the result that, even
though obviously they have been a sergeant for much less time than other sergeants, they are
making more money than their more-senior cohorts. There was proof in the record that the
Sheriff, in the exercise of his discretion, gave one newly-promoted sergeant a raise of
approximately $1,900 even though that sergeant was already making well above the average
pay for sergeants.
For example, it would cost Hamilton County $74,596.56 above what is currently
budgeted for total sergeants’ pay if equalization were to be achieved by bringing all sergeants
up to the salary of the highest-paid sergeant. Gorman testified “it’s an issue of cost. . . .
[T]here’s not enough money to go around.”
The Board voted unanimously at its hearing to sustain the grievance. It later issued
a written explanation, which states, in pertinent part, as follows:
Sheriff Hammond testified that he believes that it is the Sheriff’s
discretion as to the amount of money given at the time of a
promotion by reviewing the employee’s years with the
department and his/her performance and objects to fixed salaries
for each position as it would not allow him the discretion to give
merit increases.
Sheriff Hammond as well as Director Gorman both testified that
the issue of equalization has to do with funds, and if the
Commission does not provide the funds, the Sheriff cannot
correct any disparity. The Sheriff agreed that if the Board
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upholds the grievance that he would go before the County
Commission on behalf of the Board and ask for the monies but
it would require the support of the attorneys as well as the
employees.
The Board found that there is a disparity in the salaries of the
Sheriff’s Sergeants created by Sheriff Hammond when he
promoted the Sergeants and arbitrarily gave the salary increases.
Therefore, it is hereby agreed by the Board to uphold the
grievance of the Sheriff’s Sergeants to equalize their pay and if
all Sergeants do the same job that they should be paid the same
if there is not written criteria to establish standards.
The Sheriff filed a timely petition for writ of certiorari seeking judicial review of the
decision of the Board. The petition alleges that “the actions of the Board in upholding the
grievance exceed the statutory authority of the agency . . . and were unsupported by . . .
evidence which is substantial and material in light of the entire record.” The trial court
granted the writ. The parties agreed to submit the case for decision upon the record made
before the Board and their briefs. As to the materiality of the evidence, the court stated:
The court has not made a detailed examination of the transcript
of the record presented to the Board. The [Sheriff] did not
object to the Board’s decision as being unsupported by
substantial and material evidence. Thus, the court deems the
record to contain substantial and material evidence for the
Board’s decision.
(Emphasis added.) Despite finding substantial and material evidence of a disparity in pay,
the trial court ordered that
[t]he decision of the . . . Board, issued on January 31, 2011,
requiring [the Sheriff] to equalize the salaries or wages of all
sergeants employed by the [Sheriff] is set aside and declared
null and void because the Board’s decision is in violation of
statutory provisions and in excess of the statutory authority of
the Board.
The Sergeants appeal.
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II.
The Sergeants raise two issues which we have restated:
Whether the Sheriff waived any issue as to the Board’s authority
by agreeing at the Board hearing that the issue was properly
before the Board.
Whether the trial court erred in finding that the Board was
without authority to order equal pay for all sergeants.
III.
It is for this court to determine whether the substantive issue of the Board’s authority
was waived. The issue of the reach of the Board’s authority requires us to interpret the
statute from which the Board derives its authority. In Tidwell v. City of Memphis, 193
S.W.3d 555 (Tenn. 2006), the Supreme Court examined the standard of review in cases such
as the one now before us:
Therefore, the standard of review is de novo without any
presumption of correctness given to the legal conclusions of the
courts below. In interpreting statutes, the duty of this Court is
to ascertain and give effect to the intent and purpose of the
legislature without unduly restricting or expanding a statute’s
coverage beyond its intended scope. We determine the
legislature’s intent from the natural and ordinary meaning of the
statutory language within the context of the entire statute.
Id. at 559 (citations omitted).
IV.
The Sergeants argue that the Sheriff “affirmatively waived the issue [of the Board’s
authority] during the proceeding before the Board” by stating to the Board (1) that “this
grievance is properly before the Board” and (2) that “the issues of jurisdiction were
resolved.” The Sheriff does not dispute making these statements, but argues that “what the
[Sheriff] recognized at the [Board’s] . . . hearing was the fact the [S]ergeants had a right to
present their grievance to the Board. A recognition of this right . . . is in no way an
admission of the Board’s authority to eventually rule in excess of its power.” The Sheriff
points out, also, that he specifically raised the issue of the Board’s authority in his petition
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filed in trial court. He argues that the one case the Sergeants rely upon for the proposition
of waiver, i.e., Cupp v. Kimsey, No. 03A01-9810-CH-00320, 1999 WL 1076939 (Tenn. Ct.
App. E.S., filed Nov. 30, 1999), is distinguishable because that case involves the failure to
raise the issue before the trial court rather than a failure to raise it at the administrative level.
See id. at *3. The Sergeants assert in their reply brief that the issue waived in Cupp was
whether the same identical Board that acted in the present case acted outside the scope of its
authority. They assert that Cupp establishes that the issue of the Board’s authority is
waivable; therefore, according to the Sergeants, it was waived in the present case.
We do not find the arguments of either party on this issue to be compelling. The
Sheriff seems to want the best of all worlds by conceding the authority of the Board to deny
the grievance but not the authority to grant the grievance and to order relief. On the other
hand, our Supreme Court has stated that “the fact that an agency has exceeded its authority
may not be apparent until the agency has issued its final order.” Richardson v. Tennessee
Board of Dentistry, 913 S.W.2d 446, 457 (Tenn. 1995). This case appears to be a good
illustration of the High Court’s observation. Administrative agencies such as the Board are
not particularly well suited to determine the boundaries of their own authority. See id. The
courts are vested with the ultimate say as to whether the Board acted “[i]n excess of the
statutory authority” that it was granted by the legislature. Tenn. Code Ann. § 4-5-322(h)(2)
(2011).
The trial court likened the issue of waiver to that of subject matter jurisdiction; the
latter cannot be waived or bestowed by estoppel or the like. The trial court relied upon this
Court’s holding in Faust v. Metropolitan Gov’t, 206 S.W.3d 475 (Tenn. Ct. App. 2006) to
the effect that the civilian employees of a police department could not have gained vested
rights, or rights by estoppel, from an erroneous interpretation of an administrative agency that
purported to give that agency authority over the civilian employees where none existed. Id.
at 493. In Faust, we stated that “[n]o administrative agency can exercise control over
matters which the legislature has not seen fit to delegate to it and actions beyond the authority
of the agency can have no force or effect.” Id. at 498. Even though we agree with the
Sergeants that our finding of waiver in Cupp teaches that the analogy between the Board’s
authority and subject matter jurisdiction is not absolute, we do not agree that the failure to
raise the issue at the Board’s hearing prevents us from reaching the merits of that issue. In
County of Shelby v. Tompkins, 241 S.W.3d 500, 504 (Tenn. Ct. App. 2007), we reached the
merits of an issue regarding an objection to our jurisdiction because of a lack of the written
decision of an administrative tribunal. Our reasoning, as quoted in pertinent part, seems
equally applicable to the present case:
Importantly, the disputed issue under review is a narrow one of
pure law, and there are no disputed material facts. Neither party
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disputes what the . . . Board decided or why it did so, and the
chancellor considered these factors in reviewing the case.
Id. We hold that the Sheriff preserved the issue of whether the Board acted outside its
authority by raising the issue in the trial court.
We turn now to the substantive issue of whether the Board acted outside its authority
in ordering the Sheriff to pay all sergeants the same salary. The Sheriff simply argues that
the Board’s authority is defined by Tenn. Code Ann. § 8-8-409 (2011) and that it acted
outside that authority in setting the pay for all sergeants in the Sheriff’s Office. The
Sergeants argue that even though the statute does not explicitly grant the Board the authority
to set pay scales, it does explicitly grant the Board the authority to “hear and determine
appeals and complaints” which, according to the Sergeants, carries with it the implicit
authority to fashion remedies with regard to those appeals and complaints, even if that
remedy impacts the pay scale.
It will be helpful to have an overview of the legislation at issue. The County Sheriff’s
Civil Law of 1974 is codified at Tenn. Code Ann. §§ 8-8-401 through 8-8-419 (2011)(“the
Act”). Counties may opt into the coverage of the Act by a two-thirds vote of the county
legislative body. Id. at § 402(a). It is undisputed that Hamilton County opted in. The Act
applies to “all positions and employees in the sheriff’s department,” with very limited
exceptions that are not applicable in this case. Id. at § 403. The Board was created pursuant
to §§ 404 through 408 of the Act, which deal generally with the terms and qualifications of
board members. The “Powers and duties” of a civil service board, and hence the Board in
the present case, are defined by § 409 as follows:
The board as a body shall:
(1) Adopt and amend rules and regulations for the
administration of this part;
(2) Make investigations concerning the enforcement and effect
of this part and require observance of the rules and regulations
made thereunder;
(3) Hear and determine appeals and complaints respecting the
administration of this part;
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(4) Establish and maintain a roster of all employees of the
classified service and the office of the sheriff showing their
position, rank, compensation and place of residence;
(5) Ascertain and record the duties and responsibilities
pertaining to all positions in the classified service and classify
such positions in the manner hereinafter provided;
(6) Except as otherwise provided in this part, formulate and hold
competitive tests to determine the qualifications of persons who
seek employment in any position, and as a result of such tests,
establish employment lists of eligibles for the various positions;
(7) Establish records of performance and a system of service
ratings to be used to determine promotions, the order of layoffs
and reemployment and for other purposes;
(8) Keep any other such records as may be necessary for the
proper administration of this part; and
(9) Determine all fringe benefits to employees coming under the
provisions of this part.
Id. The civil service board is charged with classifying all jobs within a given sheriff’s
department and determining the requirements and qualifications for those jobs. Id. at § 411.
The civil service board must administer competitive eligibility tests, and advise the sheriff
of the persons eligible for appointment to any openings. Id. at §§ 410, 414.
We note that the Sergeants repeatedly make mention of the “Manual” of civil service
rules and regulations promulgated by the Board, and even include a copy of the Manual as
an attachment to their brief. However, we denied a joint motion of the parties to supplement
the record with the Manual because it was not part of the record before the trial court.
Accordingly, we will make our decision without reference to the Manual.
We are not writing on a blank slate. In Wayne County v. Tennessee Solid Waste
Disposal Control Board, 756 S.W.2d 274, 277 (Tenn. Ct. App. 1988), this court held that
the Tennessee Solid Waste Disposal Control Board’s broad grant of authority over landfills
did not give it the implied authority to grant remedial relief to neighboring landowners who
were injured by improperly-operated landfills. Neighbors of the landfill complained to the
Solid Waste Board that the county landfill was contaminating their water. After a hearing,
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the Board determined that the landfill was indeed contaminating the ground water and
ordered it closed as a nuisance. Id. at 278. The Solid Waste Board then went further and
ordered the county, the operator of the landfill, to provide the landowners with “a safe,
uncontaminated drinking water supply.” Id. The county appealed the Solid Waste Board’s
decision to the chancery court. The chancery court affirmed the Solid Waste Board’s factual
findings as well as its order that the landfill be closed, but held that it acted beyond its
authority in ordering the county to supply water to the landowners “whose water is
contaminated as a result of violations” of the standards within the Solid Waste Board’s
oversight. Id. at 279. We affirmed the chancery court in all respects. Id. at 284. The
following is our discussion regarding the Solid Waste Board’s authority to order the county
to provide the landowners with a supply of water:
Administrative agencies derive their authority from the General
Assembly. Thus, their power must be based expressly upon a
statutory grant of authority or must arise therefrom by necessary
implication. Tennessee Pub. Serv. Comm’n v. Southern Ry.,
554 S.W.2d 612, 613 (Tenn. 1977); General Portland, Inc. v.
Chattanooga-Hamilton County Air Pollution Control Bd., 560
S.W.2d 910, 913 (Tenn. Ct. App. 1976). Even though statutes
like the Act should be construed liberally because they are
remedial, Big Fork Mining Co. v. Tennessee Water Quality
Control Bd., 620 S.W.2d 515, 519-20 (Tenn. Ct. App. 1981),
the authority they vest in an administrative agency must have its
source in the language of the statutes themselves. Williams v.
American Plan Corp., 216 Tenn. 435, 443, 392 S.W.2d 920,
924 (1965); Madison Loan & Thrift Co. v. Neff, 648 S.W.2d
655, 657 (Tenn. Ct. App. 1982).
The courts should give the language of a statute its natural and
ordinary meaning in light of the substance of the entire statute.
Oliver v. King, 612 S.W.2d 152, 153 (Tenn. 1981). Statutes
forming a single statutory scheme should be construed together
to make the system consistent in all its parts and uniform in its
operation. Westinghouse Electric Corp. v. King, 678 S.W.2d
19, 23 (Tenn. 1984), app. dismissed, 470 U.S. 1075, 105 S. Ct.
1830, 85 L. Ed. 2d 131 (1985); Pritchard v. Carter County
Motor Co., 197 Tenn. 222, 224, 270 S.W.2d 642, 643 (1954);
Bodin Apparel, Inc. v. Lowe, 614 S.W.2d 571, 573 (Tenn. Ct.
App. 1980).
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The [Solid Waste] Act was passed in 1969 to “protect the public
health, safety and welfare, prevent the spread of disease and
creation of nuisances, conserve our natural resources, enhance
the beauty and quality of our environment and provide a
coordinated statewide solid waste disposal program.” Tenn.
Code Ann. § 68-31-102 (1987). As part of this program, Tenn.
Code Ann. § 68-31-104(3) (1987) provides that it is unlawful to
“[c]onstruct, alter, or operate a solid waste processing or
disposal facility or site in violation of the rules, regulations, or
orders of the commissioner or in such a manner as to create a
public nuisance.”
The authority for implementing the Act and for enforcing its
provisions rests with the Commissioner of Health and
Environment (“Commissioner”) and the [Solid Waste] Board.
. . . [T]he Commissioner presently has the authority to
investigate and supervise the construction, alteration, and
operation of solid waste disposal facilities and sites. Tenn. Code
Ann. §§ 68-31-105(a) & 107(a) (1987). The [Solid Waste]
Board has the authority to promulgate and enforce regulations
pertaining to the same activities. Tenn. Code Ann. §§ 68-31-
105(c), 107, § 111(d) & (f) (1987). The [Solid Waste] Board’s
enforcement power is independent from the Commissioner’s,
and in some circumstances not applicable to this case, the [Solid
Waste] Board has the authority to review and modify the
Commissioner’s enforcement actions. Tenn. Code Ann. §§ 68-
31-111(f) & 113(a)-(f).
In its original form, the [Solid Waste] Act’s enforcement
mechanisms could be triggered only by the Commissioner or the
[Solid Waste] Board. In 1980, Tenn. Code Ann. § 68-31-113(h)
was enacted, enabling private parties to file complaints with the
Commissioner regarding violations of the Act. This amendment
also provided for an appeal to the [Solid Waste] Board if either
party was dissatisfied with the Commissioner’s response to the
complaint. While Tenn. Code Ann. § 68-31-113(h) does not
specifically describe the enforcement remedies available to the
[Solid Waste] Board when private parties file complaints, it is
reasonable to infer that the Board’s remedial authority is at least
as broad as the Commissioner’s.
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The [Solid Waste] Act gives the Commissioner six enforcement
options, all intended to abate or avoid injuries to the public that
could be caused by violations of the Act. The Commissioner
may: (1) revoke or deny applications for registration under
Tenn. Code Ann. § 68-31-106(d) (1987); (2) disapprove
applications for loans or grants under Tenn. Code Ann. § 68-31-
109 (1987); (3) issue orders of correction in accordance with
Tenn. Code Ann. § 68-31-112 (1987); (4) refer the case for
criminal prosecution under Tenn. Code Ann. § 68-31-114
(1987); (5) institute proceedings seeking injunctive relief
pursuant to Tenn. Code Ann. § 68-31-115 (1987); and assess
civil penalties under Tenn. Code Ann. § 68-31-117 (1987).
In addition to the Commissioner’s powers, the [Solid Waste]
Board has the authority to review any order of correction issued
by the Commissioner and, when doing so, to “make findings and
enter such orders as in its opinion will best further the purposes
of this [Act].” Tenn. Code Ann. § 68-31-113(f) (1987). The
[Solid Waste] Board also has the authority, pursuant to Tenn.
Code Ann. § 68-31-113(h), to review the Commissioner’s
response to private complaints. In these situations, the [Solid
Waste] Board’s authority extends to the six enforcement options
available to the Commissioner.
The [Solid Waste] Act’s remedies are designed to protect the
public health and to conserve and enhance the environment.
When violations occur, the Act gives the regulators broad
authority to stop the violation and to order steps to remedy or
mitigate its effects. The Act does not explicitly provide a
private right of action for persons who have been damaged as a
result of a violation. Nor does it explicitly empower the
Commissioner or the [Solid Waste] Board to grant or seek legal
or equitable relief on behalf of those who have been damaged.
The [Solid Waste] Board claims that it has the authority to
fashion remedies for essentially private wrongs even though the
Act does not give it explicit authority to do so. Asserting that
the authority is implicit in its authority to abate public nuisances
and to issue orders of correction, the Board argues that its
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interpretation of the [Solid Waste] Act is reasonable and
consistent with the Act’s purposes.
Notwithstanding the logic and appeal of the [Solid Waste]
Board’s position, it provides an insufficient basis for this Court
to engraft remedies onto the [Solid Waste] Act that were not put
there by the General Assembly. It is not our role to determine
whether a party’s suggested interpretation of a statute is
reasonable or good public policy or whether it is consistent with
the General Assembly’s purpose. We must limit our
consideration to whether the power exercised by the [Solid
Waste] Board is authorized by the express words of the statute
or by necessary implication therefrom.
We have determined that nothing in the [Solid Waste] Act
expressly gives the [Solid Waste] Board or the Commissioner
the authority to grant remedial relief to private parties. The
Commissioner’s and the Board’s authority to provide relief for
injuries to the general interests of the public will not be
diminished by their inability to provide private remedies.
Accordingly, it is neither necessary nor proper to find the power
to redress private wrongs between the lines of the statutes.
Id. at 282-83 (footnote and headings in original omitted).
The Sergeants attempt to distinguish Wayne County by pointing out that the Solid
Waste Board in that case granted the improper remedial relief to private parties. As we
understand the distinction, the Sergeants are parties by virtue of their grievance, therefore,
according to their logic, the Board had the power to grant them any and all relief that
addressed their grievance. We are not persuaded by this “distinction.” The affected
landowners in Wayne County lodged a complaint with the Solid Waste Board. This Court
discussed the ability of private citizens to initiate proceedings by a complaint to the Solid
Waste Board or the Commissioner and how that complaint fit within the statutory scheme.
In that case, as in the present case, the administrative board was creating a remedy for the
perceived harm of an aggrieved party. Another reason we are not persuaded by the supposed
distinction is that Wayne County is more important for the methodology of evaluating a
supposed implied grant of authority than for the actual outcome. If a Solid Waste Board with
the express authority to oversee operation of a county landfill to the point of ordering it
closed does not have the implied authority to order the landfill operator to supply water to
those persons affected by violations of the underlying Solid Waste Act, we do not believe
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that the express authority of the Board in the present case to “hear and determine appeals and
complaints” could give it the implied authority to determine the rate at which all sergeants
employed by the Sheriff will be paid.
Our interpretation of Wayne County is consistent with other cases finding that
administrative authority to act does not extend beyond the powers expressly granted by the
legislature. For example, in Crawley v. Hamilton County, 193 S.W.3d 453 (Tenn. 2006),
the High Court held that although Tenn. Code Ann. § 8-8-409, without question, gave a
county the power to determine the “fringe benefits” it provided to its employees, it did not
give the county authority to deprive its injured employees of a possible governmental tort
liability claim through the guise of an added, but highly limited, fringe benefit. Id. at 455,
457. In Town of Rogersville v. Mid Hawkins County Utility District, 122 S.W.3d 137, 139
(Tenn. Ct. App. 2003), we held that the statute setting forth the factors to be considered in
determining whether to create a new utility district did not authorize a county executive to
modify an existing utility district based on a consideration of those statutory factors. See also
Faust, 206 S.W.3d at 498 (“No administrative agency can exercise control over matters
which the legislature has not seen fit to delegate to it and actions beyond the authority of the
agency can have no force or effect.”).
The trial court in the present case relied upon Wayne County when it held that the
Board did not have the authority to order the Sheriff to equalize pay for all individuals in a
certain classification, i.e., sergeants. We agree wholeheartedly with the trial court that the
Board has no more authority to correct a disparity by ordering every employee paid the top
possible wage any more than it has the authority to correct the disparity by ordering everyone
paid at the rate paid the lowest paid sergeant or some other arbitrary figure.
We need not look any further than the Wayne County case to see that the Board can
hear grievances, and sustain grievances, and order corrective action so long as it acts within
the scope of its authority. We reiterate that in Wayne County, we affirmed the finding of
violations and the order to close the landfill. The trial court in the present case, and, thus,
this Court, both have the authority to modify the Board’s decision or “remand the case for
further proceedings.” Tenn. Code Ann. § 4-5-322(h)(2011).
The trial court observed, in its “Memorandum Opinion and Order,” that the Sheriff
“did not object to the Board’s decision as being unsupported by substantial and material
evidence.” Accordingly, the court stated that it “deems the record to contain substantial and
material evidence for the Board’s decision.” We agree. We also agree with the trial court’s
legal conclusion “that the Board does not have the legal power to make equal the pay for
each and every sergeant by the [Sheriff].” We disagree, however, with the trial court’s
ultimate decision to declare the decision of the Board “null and void.” We believe a different
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approach is the appropriate one. Accordingly, we modify the trial court’s ultimate decision
of “null and void” by striking it from the court’s judgment and we remand this matter to the
Board so it can direct the Sheriff in writing to take the necessary steps to eliminate the
disparity in sergeant pay. It is for the Sheriff to determine how this goal is to be achieved,
but – the grievance in this case having been sustained – the goal must be achieved.
V.
The Sergeants argue in their reply brief that the Sheriff’s brief was filed late without
permission of this Court and should be stricken. They rely on Tenn. R. App. P. 29(c) which
provides, in pertinent part:
If an appellee fails to file a brief within the time provided by this
rule or within the time as extended, any appellant may file a
motion in the appellate court to have the case submitted for
decision on the record and appellant’s brief.
A Rule 29(c) motion can be responded to by the appellee “within 14 days after filing of the
motion.” Id. By raising the issue in their reply brief, rather than by motion, the Sergeants
avoided giving the Sheriff an opportunity to respond. More importantly, the Sergeants
provide no explanation of whether or how the late filing harmed them. Furthermore, after
filing their reply brief on November 23, 2011, the Sergeants agreed “to waive oral argument
with regard to this appeal . . . and to submit the matter for determination on the briefs
previously filed with the Court.” Accordingly, to the extent the Sergeants intend to stand on
their request that the Sheriff’s brief be stricken, that request is denied.
VI.
The judgment of the trial court is modified. Costs on appeal and at the trial level are
taxed to the appellee, Jim Hammond, Sheriff of Hamilton County. This case is remanded to
the Hamilton County Sheriff’s Office Civil Service Board with instructions as set forth in this
opinion.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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