holding that in liberally construing a statute, the court interprets a statute “in order to accomplish the purpose which the Legislature obviously had in mind”
How later courts described this case
- holding that in liberally construing a statute, the court interprets a statute “in order to accomplish the purpose which the Legislature obviously had in mind”
- “This court is strongly committed to the . . . presumption that a sworn public official has acted lawfully.”
- “This is a court of appeals and errors, and we are limited in authority to the adjudication of issues that are presented and decided in the trial courts . . . .”
- “Remedial statutes are defined as legislation providing means or method whereby causes of action may be effectuated, wrongs redressed and relief obtained . . . .”
Written by the judges who cited it.
The opinion
10/27/2025
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 16, 2025 Session
STATE OF TENNESSEE EX REL. MARLINEE IVERSON, COUNTY
ATTORNEY FOR SHELBY COUNTY, TENNESSEE
v.
WANDA HALBERT
Appeal from the Circuit Court for Shelby County
No. CT-3270-24 Felicia Corbin Johnson, Judge
___________________________________
No. W2025-00097-COA-R3-CV
___________________________________
A complaint for ouster was filed nominally on behalf of the Shelby County Attorney
against Shelby County Clerk Wanda Halbert. The defendant clerk filed a motion to dismiss,
arguing that the plaintiff lacked standing because the complaint was being prosecuted by a
deputy county attorney and outside counsel due to a personal conflict of interest by the
named county attorney. The plaintiff then filed a motion for default judgment, arguing that
a motion to dismiss was not a proper pleading under the ouster statutes. The trial court
denied the motion for default judgment and permitted the defendant clerk to file an answer.
The trial court then dismissed the case for lack of subject matter jurisdiction due to the
plaintiff’s lack of standing. We affirm the denial of the motion for default judgment,
reverse the dismissal for lack of subject matter jurisdiction, and remand for further
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Reversed in Part, and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ANDY D.
BENNETT and CARMA DENNIS MCGEE, JJ., joined.
Robert D. Meyers, Danielle Rassoul, and Aubrey B. Greer, Memphis, Tennessee, for the
appellant, Shelby County, Tennessee.
Darrell J. O’Neal and Misty L. O’Neal, Memphis, Tennessee, for the appellee, Wanda
Halbert.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 2024, Petitioner/Appellant the State of Tennessee, upon relation of
Marlinee Iverson (“County Attorney Iverson”), County Attorney for Shelby County,
Tennessee (“the County” and collectively, “Appellant”) filed a petition to remove
Respondent/Appellee Wanda Halbert (“Appellee”) from her office as Shelby County Clerk
for neglect of duty in the Shelby County Circuit Court (“the trial court”). Appellant
requested that Appellee be suspended from the performance of her duties pending a final
ruling. Relevant to this appeal, the petition recited Tennessee Code Annotated section 8-
47-110, which provides that a petition for ouster may be filed “in the name of the state and
may be filed upon the relation of . . . the county attorney in the case of county officers[.]”
The petition explained that County Attorney Iverson could not represent Appellant due to
a conflict of interest and so appointed her office’s chief litigation attorney, Deputy County
Attorney Lee Whitwell (“Deputy County Attorney Whitwell”), to act in her place. Deputy
County Attorney Whitwell then retained private counsel “to serve as a special deputy
County Attorney to prosecute this action on behalf of the County Attorney’s Office.” The
petition was signed only by private counsel, Robert D. Meyers (“Attorney Meyers”) of the
Memphis law firm, Glankler Brown PLLC.
On August 23, 2024, Appellee filed a motion to dismiss for lack of subject matter
jurisdiction. Appellee argued that (1) Appellant lacked standing; (2) a private attorney
cannot maintain an ouster action on behalf of the County; and (3) an agent cannot perform
functions its principal is not authorized to perform. In the memorandum accompanying the
motion, Appellee argued that the ouster statute does not include a private attorney like
Attorney Meyers among those with the authority to bring an ouster action, and the County
Attorney is not authorized to appoint outside counsel for extraordinary litigation on behalf
of the County. Appellee further asserted that County Attorney Iverson could not appoint
an agent to prosecute this ouster action when she admitted to being disqualified from
prosecuting the case herself.
On September 6, 2024, Appellant filed a motion for default judgment against
Appellee. Therein, Appellant alleged that Appellee was served on August 6, 2024, but had
failed to file an answer within twenty days of service as required by Tennessee Code
Annotated section 8-47-114, and that pursuant to Tennessee Code Annotated section 8-47-
115, a motion to dismiss was not a permissible pleading in an ouster action. Appellant
further noted that Appellee failed to seek an extension of the time for answering. So
Appellant asked that the trial court exercise its discretion to enter a default judgment
against Appellee and “order[] her immediate removal from the Office of Shelby County
Clerk.”
-2-
On the same day, Appellant also responded to Appellee’s motion to dismiss.
Therein, Appellant argued that Appellee had conflated standing and representation; while
Attorney Meyers was representing the County Attorney in this action, the county attorney
was still the prosecuting party. Indeed, Appellant asserted that “[a]t all times, the
Plaintiff/Petitioner is County Attorney Iverson.” Because the action served to enforce state
law, Appellant argued that it was not extraordinary litigation and no approval was needed
for the County Attorney or the Deputy County Attorney to hire outside counsel.
Appellee filed a response in opposition to the motion for default judgment on
September 11, 2024. Therein, she argued that a motion to dismiss is permitted in ouster
actions where standing and subject matter jurisdiction are at issue. Moreover, Appellee
asserted that her challenge to the trial court’s subject matter jurisdiction must be addressed
prior to consideration of the motion for default judgment.
On September 13, 2024, the parties appeared before the trial court on Appellant’s
motion for default judgment. During the hearing, the trial court stated that it was disinclined
to grant a default judgment and asked counsel for Appellee if an answer could be filed
shortly. Counsel agreed that an answer could be filed in three days. So the trial court ruled
that the motion for default judgment was taken under advisement and would likely be
granted if no answer was filed. Appellee then filed an answer on September 16, 2025,
reiterating her lack of standing affirmative defense, raising failure to state a claim because
the petition failed to demonstrate that the negligence alleged was willful, and otherwise
denying the material allegations contained in Appellant’s complaint. Appellee also asked
that she be awarded “reasonable costs and attorney’s fees as authorized by statute.”
The parties again appeared before the trial court on September 17, 2024, to argue
Appellee’s motion to dismiss. At the conclusion of the hearing, the trial court stated that it
would enter a written ruling after reviewing the parties’ written argument. On September
27, 2024, the trial court entered a written order taking the motion to dismiss under
advisement and seeking supplemental briefing from the parties to address (1) the person
overseeing and managing the litigation; (2) the authority of the Deputy County Attorney to
“step into the shoes or duties of the [C]ounty [A]ttorney” in an ouster action; (3) the effect
of County Attorney Iverson’s conflict of interest on her office and the prosecution of this
case; (4) the ability of a party with a conflict to be the prosecuting plaintiff in an ouster
action; (5) the real party in interest in an ouster action; and (6) the existence and nature of
any attorney-client relationship. The parties thereafter filed supplemental briefs addressing
these questions. In her supplemental brief, Appellee reiterated that she should be awarded
attorney’s fees under Tennessee Code Annotated section 8-47-121. After a status
conference on November 6, 2024, the trial court requested a second round of supplemental
briefing focused on questions pertaining to County Attorney Iverson’s conflict of interest.
Appellant and Appellee filed additional supplemental briefs on November 11, 2024, and
November 18, 2024, respectively.
-3-
On January 14, 2025, the trial court entered an order denying Appellant’s motion
for default judgment, concluding that while Appellee had not filed an answer in the
required time, she had otherwise defended her case within that time. The order therefore
ruled that Appellee would be permitted an additional five days to file an answer. Appellant
filed a notice of appeal on January 17, 2025.
On February 14, 2025, the trial court entered an order granting Appellee’s motion
to dismiss.1 The trial court concluded that an ouster petition may be brought in the name
of the State upon relation of the County Attorney. But the trial court questioned how the
case could be brought based on the information of County Attorney Iverson when she
admits that she has a disqualifying conflict of interest. So the trial court concluded that
County Attorney Iverson is only a “straw person,” not a real party to this action.
The trial court also concluded that the statute does not include private attorneys or
Assistant/Deputy County Attorneys among those with standing to bring an ouster action.
Because Deputy County Attorney Whitwell could not bring the action, either in his own
name or on behalf of the County Attorney or the State, he did not have the authority to hire
private counsel to do so. Thus, the trial court ruled that Appellant does not have standing,
and the trial court lacked subject matter jurisdiction over the complaint. The trial court
pretermitted Appellee’s agency argument.2
II. ISSUES PRESENTED
Appellant raises the following issues, which are taken from its brief:
1. Whether the trial court erred in determining that the county attorney is not permitted
to delegate the authority to litigate and oversee legal proceedings brought under
Tenn. Code Ann. §§ 8-47-101, et seq., when the county attorney has a conflict of
interest that prevents her from participating in the litigation.
2. Whether the trial court erred in denying Appellant’s motion for default judgment
when Appellee failed to timely answer under Tenn. Code Ann. § 8-47-114 and there
was not a finding of excusable neglect.
Appellee also raises an issue regarding this Court’s subject matter jurisdiction to adjudicate
this appeal due to the lack of a final judgment.
III. ANALYSIS
1
An amended order was entered on March 14, 2025, to comply with Tennessee Rule of Civil
Procedure 58’s certificate of service requirements.
2
While this appeal was pending, the parties sought to engage in voluntary mediation under Rule
34 of the Tennessee Rules of Appellate Procedure. Shortly thereafter, however, one party withdrew its
consent to participate in mediation, and this appeal proceeded.
-4-
A.
We begin with this Court’s subject matter jurisdiction, as it must be considered
before we reach the substantive issues in this appeal. Eldridge v. Eldridge, 42 S.W.3d 82,
85 (Tenn. 2001) (“Challenges to a court’s subject matter jurisdiction call into question the
court’s lawful authority to adjudicate a controversy brought before it, and, therefore, should
be viewed as a threshold inquiry.” (quotation marks and citations omitted)). “Subject
matter jurisdiction involves a court’s lawful authority to adjudicate a controversy brought
before it.” Chapman v. DaVita, Inc., 380 S.W.3d 710, 713 (Tenn. 2012) (citing Meighan
v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996); Standard Sur. & Cas.
Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436, 440 (1943)). The lack of subject matter
jurisdiction cannot be waived. Meighan, 924 S.W.2d at 639. “Without subject matter
jurisdiction, a court cannot enter a valid, enforceable order.” In re S.L.M., 207 S.W.3d
288, 295 (Tenn. Ct. App. 2006) (citations omitted).
Under Rule 3 of the Tennessee Rules of Appellate Procedure, an appeal as of right
may be taken only after the entry of a final judgment. See Tenn. R. App. P. 3(a) (“In civil
actions every final judgment entered by a trial court from which an appeal lies to the
Supreme Court or Court of Appeals is appealable as of right.”); Bayberry Assocs. v. Jones,
783 S.W.2d 553, 559 (Tenn. 1990) (“Unless an appeal from an interlocutory order is
provided by the rules or by statute, appellate courts have jurisdiction over final judgments
only.”). An order that adjudicates fewer than all of the claims, rights, or liabilities of all the
parties is not final and generally cannot be appealed as of right. In re Est. of Henderson,
121 S.W.3d 643, 645 (Tenn. 2003).
In this appeal, Appellee argues that this Court lacks subject matter jurisdiction
because the trial court did not rule on her motion for attorney’s fees. It is true that when
the trial court fails to rule on a request for attorney’s fees, the trial court’s judgment is
typically non-final. See, e.g., City of Jackson v. Hersh, No. W2008-02360-COA-R3-CV,
2009 WL 2601380, at *4 (Tenn. Ct. App. Aug. 25, 2009) (“This Court has concluded on
several occasions that an order that fails to address an outstanding request for attorney’s
fees is not final.”).
As an initial matter, we must note that although the parties reference a February 20,
2025 motion for attorney’s fees, no such motion is included in the appellate record. While
the duty to prepare a record often falls to the appellant in an appeal, the appellee has a
responsibility to ensure that the record contains any matters that are necessary to its own
arguments on appeal. See Tenn. R. App. P 24(a) (giving the appellee an opportunity to
designate additional parts of the record for inclusion on appeal), (e) (allowing
supplementation or correction of the record if matters are omitted). Still, the record does
contain several filings by Appellee in which she did raise her request for attorney’s fees
while this case was clearly ongoing. So it does appear that a request for attorney’s fees was
both properly raised in the trial court and evidenced on appeal.
-5-
We note, however, that the statutory provision that Appellee relies upon specifically
stays reimbursement of cost and fees should an appeal be filed:
After final hearing on the complaint or petition, any public officer not
removed from office, or if the officer has been suspended, any officer
immediately restored to office, may be reimbursed reasonable attorney fees
by the appropriate state, county, municipality, or other political subdivision.
If either party appeals pursuant to § 8-47-123, no such reimbursement shall
be made until a final judgment is rendered.
Tenn. Code Ann. § 8-47-121. Appellant asserts that this provision means that an award of
attorney’s fees under section 8-47-121 is not appropriate until all appeals have been
exhausted. Appellee appears to argue that section 8-47-121 requires that the trial court take
up an award of costs and fees following the final hearing in an ouster action but prior to an
appeal. It does not appear that any cases considering this statute have addressed whether
this Court lacks subject matter jurisdiction when a trial court fails to rule on a request for
fees under section 8-47-121. But see State ex rel. Carney v. Crosby, 255 S.W.3d 593, 602
(Tenn. Ct. App. 2008) (where the trial court denied a request for attorney’s fees under
section 8-47-121 prior to the appeal as of right).
We need not resolve this dispute, however, as Rule 2 of the Tennessee Rules of
Appellate Procedure permits this Court to waive many of the rules of appellate procedure
for good cause. The Tennessee Supreme Court has specifically held that waiver may apply
to the finality rule. See Bayberry Assocs., 783 S.W.2d at 559. In this case, the question of
whether Appellant is a proper plaintiff and ultimately whether Appellee should be removed
from office are of great public importance. The ouster statutes contemplate that actions
such as this should be resolved expeditiously. See State ex rel. Jones v. Looper, 86 S.W.3d
189, 198 (Tenn. Ct. App. 2000) (“Based on the language of the statutes, our courts have
held that the legislature intended ouster actions to be conducted in speedy summary
proceedings.”); see also Tenn. Code Ann. § 8-47-119(a) (“Such proceedings in ouster shall
be summary and triable as equitable actions, shall have precedence over civil and criminal
actions, and shall be tried at the first term after the filing of the complaint or petition herein
named[.]”), (b) (“A continuance may be granted either side for good cause shown, but no
continuance shall be granted by an agreement of the parties.”). Moreover, as detailed infra,
we reverse the trial court’s dismissal of this case, but affirm the trial court’s denial of
Appellant’s motion for default judgment. This ruling means that the case is still pending
with its outcome yet to be determined. As such, the question of attorney’s fees under
section 8-47-121 is rendered premature. So we exercise our discretion to consider this
appeal notwithstanding Appellee’s contention that the trial court’s judgment is non-final.
B.
-6-
We therefore proceed to consider whether the trial court erred in granting Appellee’s
motion to dismiss for lack of subject matter jurisdiction, which took aim at both the
delegation of prosecution of this action to Deputy County Attorney Whitwell, as well as
the hiring of Attorney Meyers. The trial court’s decision to grant or deny a motion to
dismiss alleging a lack of subject matter jurisdiction due to issues of standing is reviewed
de novo with no presumption of correctness. Rutan-Ram v. Tenn. Dep’t of Child.’s Servs.,
698 S.W.3d 540, 548 (Tenn. Ct. App. 2023). We consider the pleadings alone and take all
factual allegations in the light more favorable to the plaintiff. Id.
We begin our consideration with the ouster statutes upon which this case rests. The
ouster law provides a means by which public officers may be removed from office,
Tennessee Code Annotated section 8-47-101 through -115. Pursuant to section 8-47-101,
Every person holding any office of trust or profit, under and by virtue of any
of the laws of the state, either state, county, or municipal, except such officers
as are by the constitution removable only and exclusively by methods other
than those provided in this chapter, who shall knowingly or willfully commit
misconduct in office, or who shall knowingly or willfully neglect to perform
any duty enjoined upon such officer by any of the laws of the state, or who
shall in any public place be in a state of intoxication produced by strong drink
voluntarily taken, or who shall engage in any form of illegal gambling, or
who shall commit any act constituting a violation of any penal statute
involving moral turpitude, shall forfeit such office and shall be ousted from
such office in the manner hereinafter provided.
The ouster statutes authorize certain individuals or groups to institute ouster proceedings:
The attorney general and reporter has the power, on the attorney general and
reporter’s own initiative, and without any complaint having been made to the
attorney general and reporter or request made of the attorney general and
reporter, to institute proceedings in ouster against any and all state, county,
and municipal officers, under this chapter, and the district attorneys general,
county attorneys, and city attorneys, within their respective jurisdictions,
may institute such actions, without complaint being made to them or request
made of them, as they are authorized to institute upon request made of them
or complaint made to them.
Tenn. Code Ann. § 8-47-102; see also Tenn. Code Ann. § 8-47-103 (giving the attorney
general and reporter, the district attorneys general, county attorneys, and city attorneys,
within their respective jurisdictions, the duty to investigate written complaints against
officers and stating that “if upon investigation such person finds that there is reasonable
cause for such complaint, such person shall forthwith institute proceedings in the circuit,
chancery, or criminal court of the proper county, to oust such officer from office”
-7-
(emphasis added)). Moreover,
The petition or complaint [for ouster] shall be in the name of the state and
may be filed upon the relation of the attorney general and reporter, or the
district attorney general for the state, or the county attorney in the case of
county officers, and of the city attorney, or the district attorney general, in
the case of municipal officers; and in all cases it may be filed, without the
concurrence of any of such officers, upon the relation of ten (10) or more
citizens and freeholders of the state, county, or city, as the case may be, upon
their giving the usual security for costs.
Tenn. Code Ann. § 8-47-110.
Ostensibly under the authority of the ouster statutes, a petition was filed in this case
seeking to oust Appellee for alleged dereliction of duty. There is no dispute that the ouster
statute authorizes the County Attorney, in this case County Attorney Iverson, to prosecute
such an action on relation of the State of Tennessee. But Appellee argues that the
undisputed facts demonstrate that County Attorney Iverson recused herself from this matter
due to a conflict of interest and delegated the prosecution of the ouster complaint to a
deputy in her office. Appellee argues, however, that only County Attorney Iverson was
authorized to prosecute the action under section 8-47-102, and that she could not delegate
this duty to another member of her staff or to a private attorney. In other words, Appellee
argues that the ouster statutes confer standing on County Attorney Iverson alone to
personally prosecute this case and that where a conflict disqualifies her from personally
prosecuting this action, she may not cure the conflict by delegating authority to do so to a
member of her staff. Appellant argues, in contrast, that the petition is still being brought by
the County Attorney’s office, and that nothing in the ouster statutes prevents County
Attorney Iverson from delegating responsibility for the complaint to a member of her staff
or from hiring outside counsel.
The doctrine of standing is used “to determine whether a particular litigant is entitled
to have a court decide the merits of a dispute or of particular issues.” Am. C.L. Union of
Tenn. v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006). Non-constitutional standing, the kind
at issue in this case “focuses on considerations of judicial restraint, such as whether a
complaint raises generalized questions more properly addressed by another branch of the
government, and questions of statutory interpretation, such as whether a statute designates
who may bring a cause of action or creates a limited zone of interests.” City of Memphis
v. Hargett, 414 S.W.3d 88, 98 (Tenn. 2013). In some cases, a lack of standing will deprive
the court from considering an issue:
Ordinarily, issues of non-constitutional standing are not essential to subject
matter jurisdiction and are waived if not properly preserved. However,
“[w]hen a statute creates a cause of action and designates who may bring an
-8-
action, the issue of standing is interwoven with that of subject matter
jurisdiction and becomes a jurisdictional prerequisite.” Osborn v. Marr, 127
S.W.3d 737, 740 (Tenn. 2004).
Id. at 98 n.8 (first citation omitted).3
“The lack of subject matter jurisdiction is so fundamental that it requires dismissal
whenever it is raised and demonstrated.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d
477, 480 (Tenn. Ct. App. 1999) (citing Tenn. R. Civ. P. 12.08). “Thus, when an appellate
court determines that a trial court lacked subject matter jurisdiction, it must vacate the
judgment and dismiss the case without reaching the merits of the appeal.” Id. (citing J.W.
Kelly & Co. v. Conner, 122 Tenn. 339, 397, 123 S.W. 622, 637 (1909)). Where subject
matter jurisdiction is challenged, the party asserting that subject matter jurisdiction exists
. . . has the burden of proof.” Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013).
Here, Appellee asserts that the ouster statutes limit who may bring an ouster petition and
that because neither Deputy County Attorney Whitwell nor Attorney Meyers is among this
exclusive list, the complaint against her must be dismissed.
As is evident from the above, much of this dispute involves the interpretation and
application of statutes and ordinances. As the Tennessee Supreme Court has previously
explained:
The cardinal canon of statutory construction requires the courts to
ascertain and to carry out the General Assembly’s intent. A statute’s intent is
reflected in the statute’s words, and, therefore, we must focus initially on the
words of the statute. When the words of the statute are clear and
unambiguous, we need not look beyond the statute, but rather, we must
simply enforce the statute as it is written.
Norma Faye Pyles Lynch Fam. Purpose LLC, 301 S.W.3d at 213 (citations omitted); see
also State ex rel. Moore & Assocs., Inc. v. Cobb, 124 S.W.3d 131, 133 (Tenn. Ct. App.
2003) (“[W]e construe ordinances using the same principles we would if construing a
statute.” (citing Lions Head Homeowners’ Ass’n v. Metro. Bd. of Zoning Appeals, 968
S.W.2d 296, 301 (Tenn. Ct. App. 1997))). Additionally, we must consider the whole text
of the statute and the overall statutory framework, ensuring that we “interpret each word
3
On October 22, 2025, the Tennessee Supreme Court issued an opinion in which it held that “so-
called ‘shareholder standing’ principles” did not implicate subject matter jurisdiction. Houghton v. Malibu
Boats, LLC, No. E2023-00324-SC-R11-CV, 2025 WL 2971436, at *1 (Tenn. Oct. 22, 2025). In discussing
“statutory standing,” the court noted that “the United States Supreme Court recently raised questions about
the proper categorization of this concept.” Id. at *10 n.17 (citing Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 128 n.4, 134 S. Ct. 1377, 1388, 188 L. Ed. 2d 392 (2014)). Because the
concept of statutory standing was “wholly inapplicable under the circumstances of th[at] case,” the court
concluded that it had “no occasion to address its place within the doctrine of standing in Tennessee.” Id.
We therefore apply Tennessee Supreme Court precedent concerning statutory standing as it currently exists.
-9-
‘so that no part will be inoperative, superfluous, void or insignificant.’” State v. Deberry,
651 S.W.3d 918, 925 (Tenn. 2022) (quoting Bailey v. Blount Cnty. Bd. of Educ., 303
S.W.3d 216, 228 (Tenn. 2010)). In other words, “[i]n interpreting statutes, . . . we are
required to construe them as a whole, read them in conjunction with their surrounding parts,
and view them consistently with the legislative purpose.” Coffman v. Armstrong Int’l,
Inc., 615 S.W.3d 888, 897 (Tenn. 2021) (quoting Lind v. Beaman Dodge, Inc., 356
S.W.3d 889, 897 (Tenn. 2011)). Statutes must also be construed “with the saving grace of
common sense.” State ex rel. Maner v. Leech, 588 S.W.2d 534, 540 (Tenn. 1979). Thus,
“a construction which impairs, frustrates or defeats the object of a statute should be
avoided[.]” Id. (citing First Nat’l Bank v. McCanless, 186 Tenn. 1, 207 S.W.2d 1007
(Tenn. 1948)). Moreover, while “we presume that every word in a statute has meaning and
purpose and should be given full effect,” this rule applies only “if the obvious intention of
the General Assembly is not violated by so doing” Colonial Pipeline Co. v. Morgan, 263
S.W.3d 827, 836 (Tenn. 2008) (citing In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005)).
Both the parties and the trial court focus on two central cases: Jordan v. State ex
rel. Williams, 217 Tenn. 307, 397 S.W.2d 383 (1965), and State, ex rel. Estep v. Peters,
815 S.W.2d 161 (Tenn. 1991). In Jordan v. State ex rel. Williams, a petition was filed to
oust a Shelby County Commissioner from his office. 397 S.W.2d at 385. The trial court
granted the ouster and the commissioner appealed. On appeal, the commissioner argued
that the trial court should have dismissed the ouster petition because it was not brought by
the proper petitioner. Id. at 395. Although the commissioner conceded that the petition was
brought by the official county attorney, he argued that the power to appoint the county
attorney had been placed with the Shelby County Commission by a private act, and the
Commission had retained another attorney to serve as special counsel. Id. at 395–96. This
outside counsel was argued to be the proper petitioner in the ouster action. But the
Tennessee Supreme Court held that the Legislature had the “unquestioned authority to
prescribe the mode of procedure” for ouster actions and had specifically vested that
authority in the county attorney. Id. at 396. Thus, the County Commission did not have the
power under the ouster statute to file an ouster petition and their privately retained attorney,
who “was never the official county attorney,” was not the proper party to petition for ouster.
Id.
The trial court relied on Jordan to hold that Appellant lacked standing, reasoning
that because Deputy County Attorney Whitwell had no authority under the ouster statute,
he likewise could not retain private counsel to prosecute this action. And the trial court
explained that “[t]he Deputy County Attorney does not have jurisdiction or the right to
bring an ouster petition. That is clear. There is no one before this Court that is going to
argue with that.”
But Appellant does disagree with that conclusion, arguing that the ouster statute
does not mandate that the County Attorney personally prosecute an action for ouster but
rather requires that the action is brought by the County Attorney’s office. In support of this
- 10 -
argument, Appellant cites State, ex rel. Estep v. Peters. In Peters, the Clairborne County
Attorney brought a petition on relation of the State to oust a school superintendent from
office. 815 S.W.2d at 161. After the ouster was successful, the superintendent argued on
appeal, inter alia, that the trial court should not have permitted James D. Estep, III, the
county attorney, to prosecute the petition “when he was simultaneously representing the
defendant in other litigation.” Id. at 166. In other words, the superintendent argued that an
ongoing conflict prevented the person who was serving as county attorney from
prosecuting the action against him. But the Tennessee Supreme Court easily disagreed,
noting that “[t]he participation of Estep in this litigation amounted to little, if any, more
than the use of his title (county attorney), as is appropriate under [sections] 8-47-102 and 8-
47-110.”4 Id. Moreover, the superintendent could demonstrate no prejudice that resulted
from Estep’s participation. Id.
Appellant argues that the Peters decision stands for the proposition that under
section 8-47-102, an ouster petition is brought under the title or office of the County
Attorney, not necessarily by the County Attorney personally. According to Appellant, it
was therefore not deprived of the statutory standing conferred by the ouster statutes simply
because prosecution of this case was delegated to a member of County Attorney Iverson’s
staff due to her conflict of interest.
The trial court concluded that Peters was distinguishable, however, because Estep
chose not to formally recuse in that case, unlike County Attorney Iverson. Looking beyond
the text of the Peters opinion to the case record itself, the trial court also noted that while
Estep also employed an outside attorney, Estep actually signed some of the pleadings in
that case.5 Given that the Tennessee Supreme Court affirmed the finding that no prejudice
had been shown, the trial court concluded that Peters stands for the proposition that despite
Estep “participating” in the case, “his participation was not going to be harmful to the
defendant.” But the trial court concluded that County Attorney Iverson “is not able to
participate in the way that the Court discussed in Estep” due to her “self-imposed, self-
determined” recusal. The trial court further ruled that this case was analogous with Jordan
in that like the County Commission there, the County Attorney in this case had no authority
to hire outside counsel to prosecute the ouster action.
As an initial matter, it appears that the trial court attempted to recharacterize the
conflict in Peters as somehow less problematic than the conflict at issue here simply
because County Attorney Iverson chose to remove her participation on the front end, rather
than argue a lack participation on the back end. In Peters, Estep was representing the
superintendent in another matter while “simultaneously” prosecuting the ouster action. 815
S.W.2d at 166. In this case, however, the disqualifying litigation involving Appellee and
4
The language of neither statute has been amended since the Peters decision, or at any time since
their enactment.
5
The parties submitted these pleading to the trial court during their briefing.
- 11 -
County Attorney Iverson is not concurrent with the ouster action.6 Tennessee Rule of
Professional Responsibility 1.10(d) specifically states that the rules governing conflicts
with current and former clients apply to a lawyer “serving as a public officer or
employee[.]” Tenn. R. Sup. Ct. 8, RPC 1.10(d)(1) (citing Tenn. R. Sup. Ct. RPC 1.7
(involving conflicts with current clients), 1.9 (involving conflicts with former clients)).7
But the Rules of Professional Conduct recognize that conflicts involving current clients are
more problematic than conflicts with former clients, as the rule governing the latter is
“more lenient” than the rule governing the former. Howell v. Morisy, No. W2020-00343-
COA-R9-CV, 2020 WL 6821698, at *4 (Tenn. Ct. App. Nov. 20, 2020) (quoting Garland
v. Ford Motor Co., No. 2:12-00121, 2015 WL 1401030, at *6 (M.D. Tenn. Mar. 26, 2015)).
To reframe the Peters conflict as being non-serious in order to distinguish it from this case
is, respectfully, pure fiction.
The trial court’s focus on the pleadings from Peters to determine exactly how much
participation Estep had in the action was similarly misguided. Indeed, the Tennessee
Supreme Court in Peters did not concern itself with tallying the number of contacts that
Estep had with the case to determine whether it fell above or below some arbitrary line of
participation; nothing in the opinion discusses whether Estep signed pleadings or how
much he actually participated in the litigation. Peters, 815 S.W.2d at 166. Instead, in citing
Estep’s “little, if any” participation in the case beyond the use of his title, it appears that
the Tennessee Supreme Court viewed Estep’s participation as being so miniscule as to be
irrelevant. Id. (emphasis added). The fact that the case was brought using Estep’s “title”
suggests that the Tennessee Supreme Court viewed Estep’s participation in the case as
being in name only. The reasonable interpretation of Peters is therefore that it was this
minimal to non-existent involvement in the actual prosecution of the ouster action that led
the court to conclude that Estep’s participation in the case was not prejudicial, not the fact
that the conflict there was somehow less problematic due to Estep’s decision not to recuse.
Essentially, then, the Tennessee Supreme Court approved of a scheme wherein the titled
county attorney was permitted to employ another attorney to prosecute an ouster action
when the county attorney was disqualified from doing so as the result of a serious conflict
of interest.
What occurred in this case is very similar. While the county attorney in Peters did
not formally announce that he would not participate in the case, leading to the motion to
dismiss on the basis of his involvement, the Tennessee Supreme Court concluded that his
minimal involvement in the case and decision to turn over prosecution of the ouster petition
6
The trial court’s order of dismissal recites that County Attorney Iverson’s conflict “arises from a
prior representation or involvement with [Appellee].”
7
Under Rule 1.7, a lawyer is not permitted to represent two clients simultaneously if “the
representation of one client will be directly adverse to another client[.]” Tenn. Sup. Ct. R. 8, RPC 1.7(a)(1).
It is difficult to conceive how an effort to remove a client from his or her official office is not directly
adverse to that client. As counsel for Appellee succinctly stated during one hearing: “You cannot sue your
client.”
- 12 -
to another attorney was sufficient to prevent any prejudice. County Attorney Iverson has a
similar conflict as was alleged in Peters—she has previously represented Appellee in other
litigation. And she followed almost exactly the same procedure as Estep by delegating the
duty to prosecute this case to a deputy in her employ, with that deputy then retaining outside
counsel to represent the office of the County Attorney in this specific litigation. The only
substantive difference is that County Attorney Iverson was fully transparent when she filed
her petition, stating that she was not participating in the prosecution of the petition due to
a conflict. Thus, Appellee seeks to disqualify the entire Shelby County Attorney’s office,
based essentially upon County Attorney Iverson’s actions in following the procedure set
forth in Peters.
Appellee cites nothing to suggest that it was against the Tennessee Rules of
Professional Conduct for County Attorney Iverson to delegate the prosecuting authority in
this case to a subordinate in her office and to screen herself from participation in this case.
The Shelby County Code of Ordinances permit the hiring of employee lawyers to work in
the Shelby County Attorney’s office. See Shelby Cnty. Code § 2-251 (“The county
attorney’s office . . . shall consist of the county attorney, who shall be the chief legal officer
of the county, together with assistant county attorneys and such other employees as may
from time to time be assigned to the county attorney’s office.”). Moreover, Tennessee law
recognizes that in the case of government attorneys, conflicts are not typically imputed to
other attorneys in their agencies, particularly where the lawyer with a conflict is screened
from the representation. See Tenn. Sup. Ct. R. 8, RPC 1.11 cmt. 2 (“Because of the
problems raised by imputation within a government agency, paragraph (d) does not impute
the conflicts of a lawyer currently serving as an officer or employee of the government to
other associated government officers or employees, although ordinarily it will be prudent
to screen such lawyers.”). In this case, there is no evidence to indicate that County Attorney
Iverson was not properly screened from participation in this matter or that Deputy County
Attorney Whitwell shares in her conflict of interest. Thus, it appears that there is no ethical
bar to what occurred here,8 the only question is whether the ouster statute permits it.
As we perceive it, the parties fundamentally disagree as to how the silence of the
ouster statutes should be interpreted. Appellant argues that because the ouster statutes are
silent as to how a personal conflict of interest by a county attorney should be handled, the
typical Rules of Professional Conduct control, allowing County Attorney Iverson to
appoint a member of her staff to handle the case, and for that staff member to retain private
counsel to represent the County Attorney. In contrast, in the face of legislative silence,
Appellee argues that the list of parties authorized to bring ouster complaints should not be
expanded beyond those specific individuals who must personally investigate and prosecute
8
To the extent that Appellee suggests that it was improper for County Attorney Iverson to be
involved in delegating any responsibility to her staff due to her conflict of interest, we respectfully disagree,
as County Attorney Iverson and her staff are presumed to act in good faith and in accordance with the law.
See generally State ex rel. Com’r of Transp. v. Med. Bird Black Bear White Eagle, 63 S.W.3d 734, 775
(Tenn. Ct. App. 2001) (discussed in detail, infra).
- 13 -
each ouster action. Thus, in a way, Appellee argues for a strict construction of the statute.
Tennessee courts, however, have long characterized the ouster statutes as remedial
in nature. See e.g., Marshall v. Sevier Cnty., 639 S.W.2d 440, 443 (Tenn. Ct. App. 1982)
(“[T]he ouster law is remedial and cumulative to the general removal provisions.” (citing
Broyles v. State, 207 Tenn. 571, 341 S.W.2d 724 (1960)); State v. Ward, 163 Tenn. 265,
43 S.W.2d 217, 219 (1931); see also In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004)
(“Remedial statutes are defined as legislation providing means or method whereby causes
of action may be effectuated, wrongs redressed and relief obtained . . . .”) (quotation mark
and citation omitted). And Tennessee courts give remedial statutes “a broad and liberal
construction.” Circle C Constr., LLC v. Nilsen, 484 S.W.3d 914, 919 (Tenn. 2016). The
liberal construction doctrine “allows a court to more broadly and expansively interpret the
concepts and provisions within its text.” Northland Ins. Co. v. State, 33 S.W.3d 727, 730
(Tenn. 2000); see also Chattanooga-Hamilton Cnty. Hosp. Auth. v. Bradley Cnty., 249
S.W.3d 361, 366 (Tenn. 2008) (holding that remedial legislation “is to be ‘applied fairly
and broadly to accomplish the ends intended’”) (quoting Partee v. Memphis Concrete Pipe
Co., 155 Tenn. 441, 295 S.W. 68, 69 (Tenn. 1927)); Cherokee Brick Co. v. Bishop, 156
Tenn. 168, 299 S.W. 770, 771 (1927) (holding that in liberally construing a statute, the
court interprets a statute “in order to accomplish the purpose which the Legislature
obviously had in mind”). We therefore are required “to give ‘the most favorable view in
support of the petitioner’s claim[.]” Mullins v. State, 320 S.W.3d 273, 279 (Tenn. 2010)
(quoting Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000)). Still, “[w]hile a generous
construction may be warranted, the interpretation of a remedial statute may not exceed
reasonable bounds.” Chattanooga-Hamilton Cnty. Hosp, 249 S.W.3d at 366 (citations
omitted). As a result, we are not permitted to authorize amendment, alteration, or extension
of a statute beyond its obvious meaning, nor are we permitted to create a right of action
where none exists. Mullins, 320 S.W.3d at 279 (citations omitted).
Given the liberal interpretation of the ouster statutes, the Peters case, and the
applicable Rules of Professional Conduct, we cannot agree with either Appellee’s or the
trial court’s conclusions in this case. After reviewing the ouster statutes, their purpose is to
provide a clear and expedited avenue for the removal of public officials who have
committed misconduct or neglected their duties. See generally Tenn. Code Ann. §§ 8-47-
102 & -103. And the Tennessee General Assembly intended that in addition to the Attorney
General and Reporter and citizen petitions, district attorney generals and county and city
attorneys would have the power to institute these actions “within their respective
jurisdictions.” Tenn. Code Ann. § 8-47-103. This means that city attorneys have the power
to oust city officials, while county attorneys have the power to oust county officials. See
Jordan, 397 S.W.2d at 396 (holding that the words “in their respective jurisdictions” means
that “[t]he city attorney [is] to prosecute actions of ouster against certain city officials;
whereas, . . . the county attorney against county officials”). But as the trial court recognized,
it is not uncommon for a city or county attorney to have represented or developed a close
relationship with officers within their jurisdiction. Indeed, of the relatively few cases that
- 14 -
deal with ouster actions in Tennessee, both this case and the Peters case involve a county
attorney that represented the very county official sought to be ousted. See Peters, 815
S.W.2d at 166. And because the rules regarding conflicts are applicable to county attorneys,
it appears that a conflict like the one at issue in this case is almost certainly likely to arise
in this situation. See Tenn. R. Sup. Ct. 8, RPC 1.10(d)(1).
Still, as previously discussed, we are to read statutes, particularly remedial statutes,
“with the saving grace of common sense” in order to avoid a “a construction which impairs,
frustrates or defeats the object of a statute[.]” Leech, 588 S.W.2d at 540; see also
Chattanooga-Hamilton Cnty. Hosp., 249 S.W.3d at 366. “The object of the ouster statutes
has been described as ‘to rid the public of unworthy officials,’ and ‘to improve the public
service, and to free the public from an unfit officer.’” Looper, 86 S.W.3d at 198 (first
quoting State ex rel. Milligan v. Jones, 143 Tenn. 575, 577, 224 S.W. 1041, 1042 (1920);
and then quoting State v. Howse, 134 Tenn. 67, 78, 183 S.W. 510, 513 (1915). To this end,
the ouster statues place both a duty and, in some situations, a mandate on city and county
attorneys to investigate misconduct by officials within their purview and to institute actions
seeking their removal. See Tenn. Code Ann. §§ 8-47-102 & -103. Thus, it is the
responsibility of certain officers to protect the public from unworthy public officials within
their jurisdictions. And it is important to note that while the Tennessee Attorney General
also has authority to bring an ouster action, the focus of the ouster statutes is on local
prosecution, either via the proper city or county attorney, district attorney general, or
citizen petition.
Under the trial court’s interpretation, however, that local control is significantly
undermined. Indeed, the role that city and county attorneys are required to play is
essentially written out of the ouster statutes whenever the named city or county attorney
develops a conflict from having represented an official—as their duty also requires and
which this case and Peters indicate is not uncommon.9 To hold that so long as the named
city or county attorney is disqualified from personal participation in a case, the entire office
of the city or county attorney is prevented from bringing an ouster action not only defeats
this purpose but also imputes a conflict to the entire city or county attorney’s office in
violation of the Tennessee Rules of Professional Responsibility. See generally Tenn. R.
Sup. Ct. 8, RPC 1.10 (not applying the rule of imputation to attorneys working as public
officers or employees).
We agree with both the trial court and Appellee that the Tennessee General
Assembly could have clarified the proper procedure to take when the titled county or city
attorney is disqualified from participating in an ouster action, as they have done with regard
9
As the complaint in this matter and the trial court’s order reflect, the Shelby County District
Attorney General also had a conflict from bringing an ouster action. An attempt to bring such an action by
a pro tem prosecutor was likewise dismissed for lack of standing. As such, any local efforts to oust Appellee
would have been left only to a citizen petition “upon their giving the usual security for costs.” Tenn. Code
Ann. § 8-47-110.
- 15 -
to the Tennessee Attorney General. See State ex rel. Com’r of Transp. v. Med. Bird Black
Bear White Eagle, 63 S.W.3d 734, 775 (Tenn. Ct. App. 2001) (holding that when
“circumstances involving a conflict of interest due to the Attorney General’s personal
involvement in a case” arise, statute provides for the employment of special counsel when
the governor and the attorney general find that such counsel is needed (citing Tenn. Code
Ann. § 8-6-106(a)). No such statute exists for county attorneys.10 Still, we cannot discount
that in the over thirty years since the decision in Peters, the Tennessee General Assembly
has done nothing to indicate its dissatisfaction with the Tennessee Supreme Court’s
decision essentially allowing an ouster action to be brought in the county attorney’s name
despite the existence of a clear conflict of interest. See Hardy v. Tournament Players Club
at Southwind, Inc., 513 S.W.3d 427, 444 (Tenn. 2017) (holding that while presuming
legislative inaction constitutes acquiescence is “‘hazardous . . . at best[,]’ . . . ‘the fact that
the legislature has not expressed disapproval of a judicial construction of a statute is
persuasive evidence of legislative adoption of the judicial construction’” (first quoting
Hardy v. Tournament Players Club at Southwind, Inc., No. W2014-02286-COA-R9-CV,
2015 WL 4042490, at *16 (Tenn. Ct. App. July 2, 2015) (Gibson, J., dissenting), rev’d,
513 S.W.3d 427 (Tenn. 2017); and then quoting Hamby v. McDaniel, 559 S.W.2d 774,
776 (Tenn. 1977))). Under these circumstances, we decline to construe the ouster statutes
so strictly as to completely prevent their use by county attorneys in situations such as the
one in this case. Instead, in delegating her authority to Deputy County Attorney Whitwell,
we presume that County Attorney Iverson “discharge[d] [her] duties in good faith and in
accordance with the law.” Med. Bird Black Bear White Eagle, 63 S.W.3d at 775;11 see
also Manis v. Farmers Bank of Sullivan County, 170 Tenn. 656, 98 S.W.2d 313, 314
(1936) (“This court is strongly committed to the . . . presumption that a sworn public
official has acted lawfully.”). So then, we conclude that the ouster statutes do not deprive
10
A Shelby County ordinance does exist concerning the employment of outside counsel. This
ordinance is discussed, infra.
11
In Medicine Bird Black Bear White Eagle, the trial court discounted a statute that permitted the
Tennessee Attorney General to employ special counsel because the statute at issue required that the
Attorney General request that special counsel be appointed. Id. In other words, in the event of a conflict,
the Attorney General was part of the process of requesting his or her replacement. Because of the
presumption that public officials will discharge their duties in good faith and in accordance with the law,
we held that those concerns were unfounded:
The Attorney General is an officer of the court and has the statutory responsibility to assure
that the various departments of state government receive appropriate legal representation
when they are entitled to it. Were a circumstance to arise that prevented the Attorney
General from representing a state office or agency in a civil legal proceeding, we presume
that the Attorney General would act professionally, ethically, and in good faith and would
exercise his or her discretion under [section] 8-6-106 to authorize the governor to employ
additional counsel to represent the office or agency entitled to representation.
Id. Like in Medicine Bird Black Bear White Eagle, the presumption of good faith applies here despite the
fact that County Attorney Iverson was the individual to delegate prosecution of this action to Deputy
Attorney Whitwell.
- 16 -
Appellant of statutory standing to prosecute this action simply because Deputy County
Attorney Whitwell was delegated the authority to bring this action under County Attorney
Iverson’s “title” despite County Attorney Iverson’s conflict of interest. Peters, 815 S.W.2d
at 166.
We further conclude that nothing in the ouster statutes indicates that Appellant was
deprived of statutory standing simply because outside counsel was retained to prosecute
this action. While it is true that the Tennessee Supreme Court held that the County
Commission could not appoint outside counsel to act as county attorney in Jordan, it was
the County Commission’s lack of power to institute ouster actions that was the issue in that
case, not the use of outside counsel itself. Jordan, 397 S.W.2d at 336. Indeed, in Peters,
the county attorney employed outside counsel to prosecute the ouster action and thereafter
had little to no involvement in the case. See Peters, 815 S.W.2d at 161 & 166 (indicating
that the county attorney was represented by two attorneys from a private law firm on
appeal).
The Shelby County Code of Ordinances also authorizes the employment of outside
counsel in some cases. See generally Shelby Cnty. Code § 2-252. Appellee argued in the
trial court, however, that the approval of the County Commission was necessary before
outside counsel was retained in this case because it constituted “extraordinary litigation”:
Commission approval by resolution shall be required before any outside or
special counsel is employed by the county to commence any extraordinary
litigation for or on behalf of the county and/or the commission, unless the
county attorney certifies to the chairman of the commission that based on
reasonable expectations and the proposed hourly rate(s) or contingent fees of
counsel that the total compensation of counsel for such matter and related
cases will not exceed $50,000.00 in the aggregate.
Shelby Cnty. Code § 2-252(3). Appellant responded that this case did not constitute
“extraordinary litigation” because it involved enforcement of the state ouster law. See
Shelby Cnty. Code § 2-252(2) (defining “extraordinary litigation” as “any litigation other
than litigation commenced or pursued by the county in the ordinary course of its usual and
customary business affairs and said definition shall exclude any suit filed by the county: .
. . [t]o enforce any state law”). The trial court, however, declined to rule on this issue, likely
because it was pretermitted by its ruling under the ouster statutes.
In general, this Court only reviews issues that are presented and decided by the trial
court. See Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a court of appeals
and errors, and we are limited in authority to the adjudication of issues that are presented
and decided in the trial courts . . . .”); In re Est. of Boykin, 295 S.W.3d 632, 636 (Tenn.
Ct. App. 2008). In other words, “when the trial court fails to address an issue in the first
instance, this Court will not consider the issue, but will instead remand for the trial court
- 17 -
to make a determination in the first instance.” Mid-S. Maint. Inc. v. Paychex Inc., No.
W2014-02329-COA-R3-CV, 2015 WL 4880855, at *14 (Tenn. Ct. App. Aug. 14, 2015).
This rule has been applied even when our review is de novo. See, e.g., Johnson v.
Rutherford Cnty., No. M2017-00618-COA-R3-CV, 2018 WL 369774, at *9 (Tenn. Ct.
App. Jan. 11, 2018) (“[T]he trial court did not rule on [the] motion for summary judgment;
therefore, this Court could not address it in the first instance.” (citing Dorrier, 537 S.W.2d
at 890)). Here, the trial court did not determine whether Shelby County Code of Conduct
section 2-252(2) was violated, nor did it determine what, if any, effect such a violation
would have on the prosecution of this case. So we decline to address this question in this
appeal.12
In sum, we conclude that Appellant does not lack statutory standing under the ouster
statutes to prosecute an ouster complaint simply because a conflict of interest required
delegation of this matter to a Deputy County Attorney. This case was properly brought by
the County Attorney’s office under County Attorney Iverson’s title. As such, the trial
court’s order dismissing this appeal for lack of subject matter jurisdiction is reversed.
C.
Appellant next asserts that the trial court erred in denying its motion for default
judgment. “When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules and that fact is made to
appear by affidavit or otherwise, judgment by default may be entered.” Tenn. R. Civ. P.
55.01. “The ‘plain language’ of Rule 55.01 shows that entry of default is permissive rather
than mandatory.” Parks v. Mid-Atl. Fin. Co., 343 S.W.3d 792, 798 (Tenn. Ct. App. 2011).
A trial court’s decision to grant or deny a motion for default judgment is therefore left to
the trial court’s sound discretion. Patterson v. SunTrust Bank, 328 S.W.3d 505, 509
(Tenn. Ct. App. 2010); see also Broyles v. Woodson, No. E2004-00402-COA-R3-CV,
2005 WL 378929, at *6 (Tenn. Ct. App. Feb. 17, 2005) (“Since the granting of a Rule
55.01 motion for default judgment is discretionary, by definition a trial court never is
required to grant such a motion unless the failure to do so would be an abuse of
discretion.”). “Implicit in this standard of review is the underlying proposition that the trial
court has discretion to excuse an insignificant delay beyond the normal [time] for filing an
answer.” Parks, 343 S.W.3d at 798. “It is also clear that a trial court should exercise its
discretion in favor of allowing a case to be heard on its merits.” Id.
The pleading requirements of ouster actions are governed by Tennessee Code
Annotated section 8-47-114, which states as follows:
12
The trial court also declined to address Appellee’s agency argument. It is unclear how this
argument fares given our conclusion that Appellant did not lack standing under the ouster statutes to bring
this action. In any event, because this argument was not addressed by the trial court, we likewise decline to
address it in this appeal.
- 18 -
Upon the filing of the complaint or petition for the writ of ouster, a summons
shall issue for the defendant, and there shall accompany the summons and be
served upon the defendant a copy of the complaint or petition filed against
the defendant, and the defendant shall have the right to answer within twenty
(20) days from such service.
The ouster statutes further provide that “[t]he petition and answer shall constitute the only
pleadings allowed, and all allegations in the answer shall be deemed controverted, and any
and all questions as to the sufficiency of the petition or complaint shall be raised and
determined upon the trial of the case[.]” Tenn. Code Ann. § 8-47-115. Tennessee courts
have held that the express requirements of sections 8-47-114 and -115 prevail over the
Tennessee Rules of Civil Procedure in the event of a conflict. See State v. Stiers, 571
S.W.3d 706, 709–10 (Tenn. Ct. App. 2018) (“The statute is clear that only a petition and
answer are allowed as pleadings, and it is further settled that a litigant may not rely on rules
of civil procedure to augment delineations made in the ouster statutes.” (citing State ex rel.
Leech v. Wright, 622 S.W.2d 807, 810–11 (Tenn. 1981) (“We have no hesitancy in holding
that if there is any conflict between any express provision of the ouster statutes and the
Tennessee Rules of Civil Procedure, the ouster statute should prevail.”))). As such, the only
proper response to an ouster petition is an answer filed within twenty days of service.
There is no dispute that Appellee did not file an answer within twenty days of the
service of the complaint and summons. Instead, Appellee filed a motion to dismiss arguing
that the trial court lacked subject matter jurisdiction. Appellant then filed a motion for
default judgment, arguing that Appellee had not defended the action as permitted in the
ouster statutes, citing State ex rel. Jones v. Looper, 86 S.W.3d 189 (Tenn. Ct. App. 2000).
Appellee responded that a motion to dismiss was the proper vehicle for raising a lack of
subject matter jurisdiction even in an ouster proceeding, citing State ex rel. Brooks v.
Eblen, 185 Tenn. 566, 206 S.W.2d 793 (Tenn. 1947). In an abundance of caution, Appellee
also filed an answer. The trial court denied the motion, and granted Appellee an
enlargement of time in which to file an answer.13
In Looper, this Court did countenance the grant of default judgments in an ouster
action. There, two ouster complaints were filed against the defendant property assessor,
which were eventually consolidated. 86 S.W.3d at 191. The defendant did not file an
answer or otherwise respond in any fashion in the twenty days following service on the
complaints. So the petitioners filed motions for default judgment. The defendant was
served with notice of the default judgment hearing set for more than thirty days following
the notice. Id. at 192. The defendant only responded by filing an answer ten minutes before
the scheduled hearing. Id. The trial court ultimately granted a default judgment against the
13
As previously noted, Appellee filed an answer on September 16, 2024, which was within the
enlarged period granted by the trial court.
- 19 -
defendant as to both complaints, finding that there was no excusable neglect to justify the
defendant’s failure to defend the complaints. Although the defendant moved to alter or
amend the trial court’s ruling, that motion was denied and an appeal to this Court followed.
Id. at 193.
On appeal, the defendant argued that because he filed his answer the day of the
default judgment hearing, he could not have been found to have failed to defend under Rule
55.01. The defendant also argued that he was entitled to an enlargement of time pursuant
to Rule 6.02 of the Tennessee Rules of Civil Procedure, which provides as follows:
When by statute or by these rules or by a notice given thereunder or by order
of court an act is required or allowed to be done at or within a specified time,
the court for cause shown may, at any time in its discretion, (1) with or
without motion or notice order the period enlarged if request therefor is made
before the expiration of the period originally prescribed or as extended by a
previous order, or (2) upon motion made after the expiration of the specified
period permit the act to be done, where the failure to act was the result of
excusable neglect, but it may not extend the time for taking any action under
Rules 50.02, 59.01, 59.03 or 59.04, except to the extent and under the
conditions stated in those rules.[14]
Despite the petitioners’ argument that Rule 6.02 should not apply to ouster
proceedings, we first held that the Rules of Civil Procedure apply in ouster proceedings
unless they conflict with an express provision. Looper, 86 S.W.3d at 195 (citing Wright,
622 S.W.2d at 810). And because “the ouster statutes do not address the availability of
extensions of time within which to file an answer,” we concluded that Rule 6.02 was
available in ouster proceedings. Id. But we noted that the defendant had not filed a motion
for an enlargement of time to file an answer, and that even to the extent that the defendant’s
very-late-filed answer “can be considered to have been accompanied by an implied motion
for extension of time in which to answer,” the trial court had discretion to deny the motion,
particularly after finding that there was no excusable neglect. Id. Because the defendant
“failed to file an answer or otherwise defend the complaints in these actions in a manner or
time period provided by the Rules of Civil Procedure,” we held that the trial court had
discretion to grant the motions for default judgment. Id. at 197.15
14
In determining whether neglect is excusable, this Court has considered the following factors:
(1) the danger of prejudice to the party opposing the late filing, (2) the length of the delay
and its potential impact on proceedings, (3) the reason why the filing was late and whether
that reason or reasons were within the filer’s reasonable control, and (4) the filer’s good or
bad faith.
State ex rel. Sizemore v. United Physicians Ins. Risk Retention Grp., 56 S.W.3d 557, 567 (Tenn. Ct. App.
2001).
15
We also soundly rejected the defendant’s assertion that default judgment was never permitted
- 20 -
Citing Looper, Appellant contends that the trial court abused its discretion in
denying its motion for default judgment. Appellant points out that Appellee failed to file
an answer prior to the expiration of the twenty-day time period in section 8-47-114. And
Appellee never filed a motion requesting an enlargement of time, nor did the trial court
find that there was excusable neglect that would have justified such an enlargement. So
then, Appellant contends that the denial of its motion for default judgment was improper.
While Looper does confirm that a trial court has discretion to grant a default
judgment in an ouster proceeding when a defendant fails to “answer or otherwise defend[,]”
id., the Tennessee Supreme Court has held that an answer may not be the only method of
defending an ouster action, notwithstanding section 8-47-115. Specifically, in State ex rel.
Brooks v. Eblen, the Tennessee Supreme Court held that while “[t]he ouster law forbids
any response other than an answer[,]” a demurer was permitted “if the petition shows on
its face that the officer sought to be removed is one whom the Court has no power to remove
under the authority of the ouster law[.]” 206 S.W.2d at 794. As the court reasoned,
If . . . the Constitution forbids the removal by the Court of the county judge
of Roane County, then that official does not come within the provisions of
the ouster law and the prohibition thereof with reference to pleadings does
not apply to him, and his demurrer would, in that event, be proper.
Id.. And of course, “[a] motion to dismiss for failure to state a claim upon which relief can
be granted is the equivalent of a demurrer under our former common law procedure[.]”
Luster v. Bargery, 55 S.W.3d 548, 550 (Tenn. Ct. App. 2000). Thus, a motion to dismiss
may be proper in some circumstances under the ouster statutes. See also State ex rel Byrge
v. Yeager, 472 S.W.3d 657, 666 (Tenn. Ct. App. 2015) (affirming the grant of a motion to
dismiss for lack of subject matter jurisdiction when the individual sought to be ousted was
not holding a public office governed by the ouster statutes).
In the trial court, Appellee argued that under Eblen, she was permitted to file a
motion to dismiss because her motion asserted that the trial court lacked subject matter
jurisdiction over the case due to Appellant’s lack of standing. As a result, she asserted that
she did not fail to defend the ouster action, and the trial court properly denied the motion
for default judgment under Rule 55.01.
In our view, this case inhabits something of a gray area that cannot be fully resolved
by reference either to Looper or Eblen. In Looper, the defendant made no attempt to defend
the action in any manner until the morning of the hearing on the default judgment. Here,
there is no dispute that Appellee filed a motion to dismiss attacking the trial court’s subject
in an ouster action, instead concluding that default judgment furthers the Legislature’s purpose that ouster
proceedings be conducted expeditiously. Id. at 198.
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matter jurisdiction within the proper timeframe. In a typical case, the filing of a motion to
dismiss would be considered an effort to “defend” an action under Rule 55.01 and would
toll the time for filing an answer. See Horton v. Tenn. Dep’t of Corr., No. M1999-02798-
COA-R3-CV, 2002 WL 31126656, at *3 (Tenn. Ct. App. Sept. 26, 2002) (“Filing a proper
motion to dismiss constitutes ‘otherwise defend[ing]’ against a lawsuit as contemplated in
Rule 55.01, making a default judgment improper.” (quoting Tenn. R. Civ. P. 55.01)). But
the ouster statutes specify that only an answer may be filed to defend against an ouster
action. See Stiers, 571 S.W.3d 706, 709–10. Yet, a motion to dismiss may be an appropriate
action if it attacks the very applicability of the ouster proceedings, as in Eblen. There is no
dispute in this case, however, that Appellee is the proper type of official subject to the
ouster statutes; her attack is that Appellant is not the proper type of petitioner to bring an
ouster complaint. And while the trial court granted Appellee an enlargement of time to file
her answer, there is no dispute that Appellee filed no motion seeking this relief, nor did the
trial court specifically address excusable neglect. See generally Tenn. R. Civ. P. 6.02.
As previously discussed, even if a default judgment is authorized by Rule 55.01, the
trial court may exercise its discretion to deny it unless that decision amounts to an abuse
of discretion. See Broyles, 2005 WL 378929, at *6. “A court abuses its discretion when it
applies an incorrect legal standard or its decision is illogical or unreasonable, is based on a
clearly erroneous assessment of the evidence, or utilizes reasoning that results in an
injustice to the complaining party.” Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 318
(Tenn. 2021) (quoting Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., 549 S.W.3d
77, 84 (Tenn. 2018)). “Under the abuse of discretion standard, a trial court’s ruling ‘will
be upheld so long as reasonable minds can disagree as to the propriety of the decision
made.’” Greer v. City of Memphis, 356 S.W.3d 917, 921 (Tenn. Ct. App. 2010) (quoting
Eldridge, 42 S.W.3d at 85 (citations omitted)).
Here, although Appellee did not properly answer the complaint in the time permitted
by section 8-47-114, unlike the defendant in Looper, there can be no dispute that Appellee
“otherwise defend[ed]” against the ouster complaint in a manner that was arguably
permitted by the Tennessee Supreme Court in Eblen. See generally Sizemore, 56 S.W.3d
at 567 (discussing the elements to consider in determining whether neglect is excusable,
supra, footnote 10). Moreover, there can be little dispute that Appellee’s delay in
answering was not the result of any bad faith conduct, nor was the delay lengthy. Neither
can there be any assertion of prejudice in this case, as Appellee’s contention that the trial
court lacked subject matter jurisdiction required adjudication before the merits of the ouster
complaint could be considered. See Eldridge, 42 S.W.3d at 85 (noting that challenges to
subject matter jurisdiction must be decided first); cf. Hickman v. Tenn. Bd. of Paroles, 78
S.W.3d 285, 288 (Tenn. Ct. App. 2001) (holding that the trial court did not abuse its
discretion allowing an extension of time to file an answer even where the motion for an
extension lacked “even a colorable explanation” for the delay, when there was no prejudice
to the opposing party in permitting the late filing). Under these circumstances, we cannot
conclude that the trial court abused its discretion in denying Appellant’s motion for default
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judgment.
IV. CONCLUSION
The judgment of the Shelby County Circuit Court is affirmed in part and reversed
in part, and this matter is remanded for further proceedings consistent with this Opinion.
Costs of this appeal are taxed one-half to Appellant the State of Tennessee, upon relation
of Marlinee Iverson, County Attorney for Shelby County, and one-half to Appellee Wanda
Halbert, for all of which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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