Jim Hammond, Sheriff of Hamilton County v. Chris Harvey

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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