Perfecting ‘De Novo’ Appeals

Amended Statute Now Allows Any Party to Bring Up Issues for Review, Regardless of Who Perfects a General Sessions Court Appeal

Imagine you represent a man who is sued in general sessions court by an ex-girlfriend, alleging he owes her money for various expenditures she incurred while dating him a year ago. When the parties broke up, she had prosecuted a domestic assault criminal warrant against him that was found to be groundless and dismissed, but not before he had lost his job and been unable to obtain employment for a period of time. He files a cross-action against her for damages for malicious prosecution. The general sessions judge hears the parties’ proof and dismisses both civil warrants, but indicates that if the man had presented more independent evidence of loss of income, he would be inclined to grant him a judgment. The man has no desire to appeal the general sessions case and just wants the matter concluded. But what if the former girlfriend appeals? If the man does not appeal within 10 days, his malicious prosecution action is dismissed and is res judicata. Up until recently, the man’s best course of action was to either file an appeal that he had no desire to pursue unless forced to as a defensive measure, or monitor the general sessions court clerk’s office up to the last minute of the last day of the 10-day appeal period and have his notice of appeal and appeal bond ready to be filed in the event the ex-girlfriend should appeal.

A significant and needed change in statutory law regarding how appeals from general sessions court in civil cases are perfected was enacted in the most recent legislative session. Tenn. Code Ann. §27-5-108, which by its express terms intends to establish “a uniform period of ten (10) days” in which an appeal may be perfected to the circuit court,[1] was amended to provide that:

(2) In civil cases, if one (1) or more of the parties before the general sessions court, on one (1) or more warrants, perfects an appeal of a decision of the general sessions court to the circuit court, as provided in this section, then cross appeals and separate appeals are not required, and upon the filing of a notice of appeal by any party, issues may be brought up for review by any party.[2]

The prior language of the statute only provided for sending notice of appeal to other parties in civil cases involving comparative fault.[3] In such cases, the statute gave other parties in the general sessions court 10 days from the receipt of such notice of appeal to file an appeal as well. No notice of appeal was required to be sent to other parties, nor was there any provision for expanding the uniform 10-day appeal period in cases not involving comparative fault. In practice, a notice of appeal is filed with the general sessions court clerk along with an appeal bond and a filing fee. A form for such a Notice of Appeal is provided on the website of the Administrative Office of the Courts, which does not include any certificate of service to other parties.[4] By local rules in some counties (e.g., Davidson, Williamson, Sumner), either the clerk or the other party is required to notify the non-appealing party of the appeal.[5]

The need for a change in the statute establishing a uniform 10-day period to exercise a party’s right of appeal from judgment in civil cases in general sessions court stems from the fact that, in order to obtain any affirmative relief in general sessions court, a party is required to file a separate warrant to make a counter-claim or cross-claim. As there are no formal pleadings in general sessions court,[6] the statutes provide for “warrants” to commence actions[7] and, further, provide for “cross-actions,” or warrants filed in response to other warrants.[8] So, for example, if a landlord sues a tenant on a forcible entry and detainer warrant (the common eviction proceeding in general sessions court), and the tenant has claims for damages for violations of the Uniform Residential Landlord Tenant Act,[9] the tenant must file a counter-claim by way of a separate cross-warrant for damages against the landlord. The general sessions court then hears both actions and renders a judgment on each warrant. Each party then has a right to appeal to circuit court by filing a notice of appeal within 10 days to obtain a de novo, or completely new, trial.

Under Tennessee case law, however, only a party who appeals the judgment of the general sessions court has a right to have claims adjudicated by the circuit court.[10] Thus, under the former statute one party could file a notice of appeal in the last minute of the 10th day of the appeal period, and the other party, having elected not to appeal and assuming the matter concluded, would be precluded from having a right to make affirmative claims for relief in the de novo trial in the circuit court appeal. The potential problem and injustice that could result from this circumstance is readily apparent in the landlord-tenant example. Suppose after a trial in the general sessions court, the landlord is granted possession of the property on the landlord’s detainer warrant, but the landlord’s claims for monetary damages are dismissed, as are the tenant’s claims for damages on the cross-action. The tenant appeals only the dismissal of the tenant’s cross-action for damages on the tenth day of the appeal period, and the landlord does not receive the notice of appeal until a few days later in the mail. The tenant may now proceed with a new trial in circuit court on only the tenant’s claim for damages, as the landlord’s claim for damages, which would now be in the nature of a counter-claim, has been dismissed as a final adjudication and is res judicata.

The general sessions court, as a non-court of record with a monetary jurisdictional limit in most cases, which also provides for a de novo trial on appeal, often conducts trials in which the proof is limited by a lack of any pretrial discovery. Once in circuit court, however, the case proceeds as if it originated in circuit court and the parties have the panoply of discovery procedures provided by the Tennessee Rules of Civil Procedure.[11] The parties are also not bound by the monetary jurisdictional limits once a case is appealed to circuit court.[12] For these reasons, a de novo trial of a general sessions court appeal may be quite different in circuit court, with substantially different results.

The amended general sessions appeal statute will now correct the potential injustice to parties who fail to file a notice of appeal within the uniform 10-day appeal period because they are satisfied the case has been concluded. Modeled after Rule 3(h) of the Tennessee Rules of Appellate Procedure,[13] if any party to the general sessions trial appeals to the circuit court, all parties that were before the general sessions court may participate in the appeal and have available the claims and defenses to which they are entitled in a de novo trial. Unlike the prior version of the statute that permitted additional time to appeal in comparative fault cases, the statute now provides a truly “uniform” 10 days to appeal that is perfected by any party appealing within that period. It should be noted that the change in the law only applies to civil cases and the appeal statute otherwise remains unchanged.

Notes

  1. See Tenn. Code Ann. §27-5-108(b).
  2. Tenn. Code Ann. §27-5-108(a)(2).
  3. Former Tenn. Code Ann. §27-5-108(a)(2) reads as follows:
    (2) If there are multiple parties in a case before the general sessions court in which comparative fault is an issue at trial, and if one (1) or more of the parties, but not all, perfects an appeal of a decision of the sessions court to the circuit court, as provided in this section, then the appealing party shall serve written notice to all other parties that an appeal has been taken. Such written notice shall be sent to the last known address of each such party or to the party's legal counsel. The other parties shall have ten (10) days from receipt of such notice to perfect an appeal.
  4. See Form under Trial & General Sessions Court Forms, “Notice of Appeal”, AOC Publications [http://www.tsc.state.tn.us/administration/judicial-resources/forms-documents/court-forms].
  5. See, e.g., Local Rules of Practice, Sumner County, 18th Judicial District of Tennessee:
    (b) Cases appealed from General Sessions and City Courts with no jury demand – Clerk’s notice will be sent that an appeal has been filed. Contact with the Circuit Court Judge’s office within 45 days of your written notice the appeal has been taken shall be made to set the matter for trial by agreed date or motion to set. Failure to contact and set shall result in notice and hearing for possible TRCivP 41 dismissal.
  6. See, e.g., McPherson v. Shea Ear Clinic, 2007 Tenn. App. LEXIS 265, 2007 WL 1237718.
  7. Tenn. Code Ann. §16-15-716.
  8. Tenn. Code Ann. §§16-15-724 and 725.
  9. See Tenn. Code Ann. § 66-28-101 et seq.; see also Tenn. Code Ann. § 66-28-501.
  10. See Braverman v. Roberts Constr. Co., 748 S.W.2d 433, 1987 Tenn. App. LEXIS 3114; see also Crowley v. Thomas, 343 S.W.3d 32, 2011 Tenn. LEXIS 599.
  11. T.R.C.P. Rules 26-37.
  12. Tenn. Code Ann. § 16-15-729; see also Ware v. Meharry Medical College, 898 S.W.2d 181, 1995 Tenn. LEXIS 189.
  13. T.R.A.P. Rule 3(h) provides:
    (h) Cross Appeals and Separate Appeals Not Required in Civil Cases. — Consistent with Rule 13(a), cross appeals and separate appeals are not required. Consequently, upon the filing of a single notice of appeal in a civil case, issues may be brought up for review and relief pursuant to the rules by any party.

Walter Stubbs WALTER STUBBS has been a general practitioner in Sumner County since graduating from Vanderbilt University School of Law in 1982. He proposed and drafted the amendment that is discussed in this article, which was sponsored in the General Assembly by Rep. William Lamberth. Stubbs has extensive experience in both transactional law and litigation practice, including business, real estate, probate, personal injury and family matters. He may be reached at (615) 452-4321.

          | TBA Law Blog