Dyanna Wilson v. City of Memphis

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 12, 2015 Session

DYANNA WILSON v. CITY OF MEMPHIS

Appeal from the Chancery Court for Shelby County

No. CH1209363 Kenny W. Armstrong, Chancellor

________________________________

No. W2014-01822-COA-R3-CV – Filed July 13, 2015

_________________________________

This appeal results from the trial court‟s order reversing the City of Memphis Civil

Service Commission‟s decision to terminate the employment of one of its employees. We

vacate the judgment of the trial court and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated

and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which Arnold B.

Goldin, J., and Brandon O. Gibson, J., joined.

Herman Morris, Jr. and Barbaralette G. Davis, Memphis, Tennessee, for the appellant, City

of Memphis.

Darrell J. O‟Neal Memphis, Tennessee, for the appellee, Dyanna Wilson.

OPINION

Background

Plaintiff/Appellee Dyanna Wilson was hired by the City of Memphis (“the City”) as

an equipment operator in 2006. Ms. Wilson‟s job description required her to work under the

supervision of a supervisor and perform various outdoor work. This case involves several

incidents of misconduct on the part of Ms. Wilson that resulted in the termination of her

employment.

Specifically, on February 27, 2009, Ms. Wilson was issued a Notice of Fact Finding

Hearing related to charges that Ms. Wilson failed to comply with direct orders of the

foreman, shift supervisor, and supervisor on three separate occasions. The first notice stated

that Ms. Wilson was being charged with violations of the City of Memphis, Division of

Public Works Rules (“Public Works Rules”),1 the City of Memphis Personnel Manual

(“Personnel Manual”),2 and a Memorandum of Understanding between the City of Memphis

and the union representing City employees (“Memorandum of Understanding”).3 Service of

the February 27, 2009 notice was attempted by certified mail, but was returned unclaimed. A

second notice concerning the same charges was issued on March 17, 2009. A copy of this

notice was also returned unclaimed.4

1

Specifically, Ms. Wilson was charged with violating Public Work Rule Article 2, Conduct at Work,

Section 2.02 Compliance of Orders, which states:

Employees shall comply with all orders of supervisors and other

approved authorities. Employees shall perform all orders requested and

directed in a prompt and efficient manner. Employees shall not verbally

abuse supervisors because of orders given, nor unreasonably question or fail

to perform work as requested.

2

Specifically, Ms. Wilson was charged with violating Personnel Manual Section 38-02, which

provides in pertinent part:

2. The employee has violated a lawful or official regulation or order,

or refused to accept an assignment from an authorized supervisor and the

failure to obey amounts to insubordination.

* * *

4. The employee‟s conduct and/or behavior toward citizens, public

charges, vendors, contractors, management personnel, fellow employees,

etc., has been offensive, inappropriate, and fails to maintain satisfactory and

harmonious relationships.

The Personnel Manual further indicated that “[d]isciplinary action may be taken” for the above

infractions.

3

The Memorandum of Understanding indicated that “[g]ross insubordination” would constitute a

major infraction.

4

There is no dispute on appeal that Ms. Wilson received adequate notice of the hearing.

2

A fact finding hearing occurred on March 27, 2009. Ms. Wilson was present at the

hearing and given an opportunity to respond to charges that she had committed several

instances of inappropriate workplace conduct between February 5, 2009, and February 17,

2009. These instances involved: 1) a February 5, 2009 incident where Ms. Wilson refused to

put on her work boots and help with the excavation of a hole, despite repeated direct orders

from the job foreman; 2) a February 12, 2009 incident where Ms. Wilson refused a direct

order from a supervisor to move a tandem truck to allow school traffic to proceed, indicating

that she would only take orders from the foreman; and 3) a February 17, 2009 incident where

Ms. Wilson refused to attend a meeting intended to provide Ms. Wilson with a notice of fact

finding hearing for prior alleged disciplinary violations.

On April 9, 2009, a notice of decision was rendered finding that the allegations against

Ms. Wilson were sustained. Specifically, management determined that Ms. Wilson

“consistently exhibited behavior that is non-cooperative and combative towards

management.” Accordingly, Ms. Wilson was found to have violated the applicable Public

Works Rules, the Personnel Manual, and the Memorandum of Understanding. With regard to

the Public Works Rules and the Personnel Manual, Ms. Wilson received an oral reprimand

for the first incident, a written reprimand for the second incident, and a one day suspension

for the third incident. With regard to the Memorandum of Understanding, Ms. Wilson

received a one day suspension for the first incident, a five day suspension for the second

incident, and a ten day suspension for the third incident. Accordingly, Ms. Wilson was to

serve nineteen days of suspension. Ms. Wilson was also ordered to participate in the City‟s

Employee Assistance Program within seven days, pursuant to the Personnel Manual. The

letter further indicated that “[a]ny future incidents of this nature will result in more severe

disciplinary action up to and including termination of employment with the City[.]”

A second disciplinary action resulted, in part, from Ms. Wilson‟s alleged refusal to

cooperate during the first disciplinary action. Specifically, a third Notice of Fact Finding

Hearing was issued on April 9, 2009 concerning alleged misconduct between February 27,

2009, and April 6, 2009. A fact-finding hearing occurred on May 8, 2009. Ultimately, this

disciplinary action involved four separate incidents of alleged insubordination by Ms.

Wilson: (1) a February 27, 2009 incident wherein Ms. Wilson refused to accept a Notice of

Fact Finding hearing concerning the prior allegations, despite direct orders to do so; (2) a

March 29, 2009 incident wherein Ms. Wilson again refused direct orders to accept the Notice

of Fact Finding Hearing; (3) an April 6, 2009 incident wherein Ms. Wilson refused a direct

order to push and unload dirt from a truck; and (4) the fact that Ms. Wilson refused to

participate in the City‟s Employee Assistance Program, despite being ordered to do so in the

April 9, 2009 decision letter.

3

The charges relating to all four incidents were sustained by decision letter dated May

15, 2009. For her violations of the Public Works Rules and Personnel Manual, Ms. Wilson

received five days of suspension for the first incident, ten days of suspension for the second

incident, fifteen days of suspension for the third incident, and thirty days of suspension for

the final incident. For her violation of the Memorandum of Understanding, Ms. Wilson

received fifteen days of suspension for the first incident, thirty days suspension for the

second incident, and termination effective immediately for the third and fourth incidents.

Ms. Wilson filed timely appeals of both disciplinary actions to the City of Memphis

Civil Service Commission (“the Commission”), which appeals were later consolidated. A

hearing was held on Ms. Wilson‟s appeal to the Commission on February 10, 2012, and

March 23, 2012.5 Ms. Wilson was present and testified, as did several of Ms. Wilson‟s

superiors. Ms. Wilson admitted that she “routinely refused to do what was asked of [her] by

[her] superiors.” However, Ms. Wilson indicated that she refused orders only when the orders

were “not right.” The Commission issued a decision on May 16, 2012, containing detailed

findings of fact and conclusions of law. In its decision, the Commission found that the

termination of Ms. Wilson‟s employment was reasonable under the circumstances and was

supported by a preponderance of the evidence. The Commission further found that the

allegations regarding Ms. Wilson‟s repeated refusal to comply with direct orders were

substantiated by the evidence and “constitute „gross misconduct‟ on the part of Ms. Wilson,”

citing the Public Works Rules, the Personnel Manual, and the Memorandum of

Understanding. Accordingly, the Commission found that there was just cause to terminate

Ms. Wilson‟s employment.

Ms. Wilson filed a petition for a writ of certiorari regarding the Commission‟s

decision on June 5, 2012, in the Shelby County Chancery Court. Ms. Wilson sought back-

pay, reinstatement, and attorney‟s fees and costs. On May 14, 2013, the trial court remanded

the matter back to the Commission to clarify whether its decision was based upon the

Memorandum of Understanding, which the trial court ruled was non-binding, or the City‟s

Personnel Manual, which the trial court ruled was an appropriate basis for discipline.

Specifically, the court‟s order states:

1. The City [] cannot rely on the terms of any Memorandum of

Understanding . . . as grounds to suspend, terminate or to take

other disciplinary actions because Tennessee case law

5

There is no explanation in the record for the substantial delay between the decision letter terminating

Ms. Wilson‟s employment and the hearing before the Commission.

4

establishes that collectively bargained memoranda or contracts

are nonbinding and unenforceable;

2. If the Commission based its decision upholding [Ms. Wilson‟s]

termination on the binding nature of the Memorandum of

Understanding to do so was error;

3. Upon remand of the case the Civil Service Commission is to

clarify whether or not its decision to uphold termination of

Petitioner‟s employment was based on the City‟s Personnel

Manual only, without consideration of the Memorandum of

Understanding, which is not enforceable against [Ms. Wilson]

under Tennessee law;

4. The Court finds that without consideration of the Memorandum

of Understanding as a basis for discipline, the notice of

disciplinary action provided to Petitioner at most supports

suspension, not termination, based on the City of Memphis

Personnel Policies and Departmental Work Rules;

5. Finally, the Civil Service Commission‟s decision is not

supported by the record to the extent it makes findings that are

inconsistent with the notice of disciplinary action provided to

Petitioner by the City of Memphis on May 15, 2009,

disregarding the provisions of the Memorandum of

Understanding referred to in the Commission‟s decision.

6. All other issues raised are reserved pending remand of this

matter.

The Commission entered a supplemental order on August 16, 2013, clarifying that its

decision was solely based upon the City‟s Personnel Manual and Public Works Rules.

Specifically, the supplemental order stated:

The Commission has reviewed the record of its

proceedings, pursuant to the Court‟s direction, and hereby

confirms that its May 16, 2012 ruling was based upon the City‟s

Personnel Policies and DPW work rules, and was not based

upon alleged violation of the [Memorandum of Understanding].

The fact that the [Memorandum of Understanding]

acknowledged that “Gross Insubordination” constituted a

“Major Infraction” for purposes of job discipline was

coincidental to the fact that Ms. Wilson‟s repeated refusals to

comply with direct orders from her DPW supervisor constituted

serious “insubordination” and failure “to maintain satisfactory

5

work relationships”, as set forth in [Personnel Manual] 38.02 (2)

& (4) of the City‟s personnel policies (Ex. 16), and also

constituted failure “to comply with all orders of supervisors”

and failure “to perform work as requested”, as set for in [Public]

Work[s] Rules 2.02[.]

The trial court, however, was not satisfied with the Commission‟s supplemental order,

as it “failed to show an objective review of the record” and failed to comply with the City‟s

Charter, which required that the decision be rendered by a chairman and two commissioners.

Accordingly, the trial court again remanded the matter back to the Commission. The

Commission entered a second supplemental order on July 28, 2014, noting that while the

initial order was entered by a three-member panel, one commissioner had retired at the time

that they were required to render the supplemental order. The Commission further noted that

given the Commission‟s and Chancery Court‟s prior rulings, the issues appeared moot, as the

trial court had previously ruled that the Personnel Manual supported only suspension rather

than termination.

Upon consideration of the second supplemental order, on August 11, 2014, the trial

court entered an order finding that the Commission: (1) erred in determining that the

Memorandum of Understanding was a proper basis for imposing discipline, despite the fact

that the Commission‟s supplemental order indicated that its decision did not rely on the

Memorandum of Understanding; and (2) erred in imposing termination because excluding

consideration of the Memorandum of Understanding, the notice of disciplinary action

provided by the City with regard to both disciplinary actions supported suspension only,

rather than termination. The order further ordered reinstatement of Ms. Wilson, with back

pay and benefits. On September 18, 2014, the City filed a motion requesting a stay of

execution on the trial court‟s judgment pending appeal. Finally, on November, 20, 2014, the

trial court entered an order denying Ms. Wilson‟s request for attorney‟s fees and sanctions

and granting the City‟s request for a stay of execution on the trial court‟s judgment.6 From

these orders, the City appeals.

Issues Presented

The City raises two issues, which are taken from its brief:

1. Whether the trial court erred in reversing the decision of the

Civil Service Commission which determined by a

6

At the time the November 20, 2014 order was entered, Chancellor Kenny Armstrong, the trial judge

who presided over the chancery court case, had been appointed to the Tennessee Court of Appeals.

Accordingly, Chancellor Walter Evans, sitting by interchange, entered the November 20, 2014 order.

6

preponderance of the evidence that just cause existed to support

the action of the City of Memphis in discharging Ms. Wilson.

2. Whether the process provided to Ms. Wilson was adequate.

In the posture of Appellee, Ms. Wilson raises three issues, which are also taken from her

brief:

1. Whether the City timely appealed the court‟s May 14, 2013

order stating that the Memorandum of Understanding is an

unenforceable contract.

2. Whether the City timely appealed the court‟s December 18,

2013 order stating that the Commission violated the Memphis

City Charter.

3. Whether the trial court correctly determined that in light of the

Commission‟s July 28, 2014 decision that the Commission

ruling was moot, and if enforcement was the proper remedy.

Discussion

I.

Because her argument involves this Court‟s subject matter jurisdiction, we begin with

Ms. Wilson‟s argument that the May 14, 2013, and December 18, 2013 orders by the trial

court were final orders from which an appeal lied. According to Ms. Wilson, because the

City failed to file a notice of appeal within thirty days of the entry of these orders, this Court

has no subject matter jurisdiction to consider any argument that the trial court erred in its

decisions.

“Subject matter jurisdiction is the basis for the court‟s authority to act and cannot be

waived.” First Tenn. Bank Nat‟l Ass‟n v. White, No. 03A01-9711-CV-00514, 1998 WL

518303 (Tenn. Ct. App. Aug. 20, 1998) (citing Landers v. Jones, 872 S.W.2d 674, 675

(Tenn. 1994)). Likewise, a lack of jurisdiction over the subject matter of a controversy cannot

be conferred upon the court by the consent of the parties. Cnty. of Shelby v. City of

Memphis, 211 Tenn. 410, 365 S.W.2d 291, 292 (Tenn. 1963); Baker v. Mitchell, 105 Tenn.

610, 59 S.W. 137, 138 (Tenn. 1900); Gillespie v. State, 619 S.W.2d 128, 129 (Tenn. Ct. App.

1981); Tritschler v. Cartwright, 46 Tenn. App. 662, 333 S.W.2d 6, 8 (Tenn. Ct. App. 1959).

Lack of subject matter jurisdiction may be raised at any time by the parties to the action or by

the appellate court sua sponte on appeal. See Tenn. R. Civ. P. 12.08 (2005) (stating that

“whenever it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the action”); County of Shelby, 365

7

S.W.2d at 291 (noting the duty of the appellate courts to sua sponte consider the issue of the

trial court‟s subject matter jurisdiction); Travers v. Abbey, 104 Tenn. 665, 58 S.W. 247, 248

(Tenn. 1900) (stating that the subject matter jurisdiction of the trial court “could be raised at

any time, and is fatal whenever presented”); Scales v. Winston, 760 S.W.2d 952, 953 (Tenn.

Ct. App. 1988) (“The issue of subject-matter jurisdiction can be raised in any court at any

time.”); Reynolds v. Hamilton, 18 Tenn. App. 380, 77 S.W.2d 986, 988 (Tenn. Ct. App.

1934) (“Where the court has no jurisdiction of the subject-matter, the question may be raised

at any time, by either the parties or the court.”).

The filing of a timely notice of appeal to this Court is jurisdictional. First Nat‟l Bank

v. Goss, 912 S.W.2d 147, 148 (Tenn. Ct. App. 1995). As this Court explained:

The date of entry of a final judgment in a civil case

triggers the commencement of the thirty-day period in which a

party aggrieved by the final judgment must file either a post-trial

motion or a notice of an appeal. See Tenn. R. Civ. P. 59.02;

Tenn. R. App. P. 4(a)–(b). If timely, certain post-trial motions,

such as [a] motion to alter or amend, will toll commencement of

the thirty-day period for filing a notice of appeal until the trial

court enters an order granting or denying the motion. Tenn. R.

App. P. 4(b); see Binkley v. Medling, 117 S.W.3d 252, 255

(Tenn. 2003). If a post-trial motion is not timely, the trial court

lacks jurisdiction to rule on the motion. See Binkley, 117

S.W.3d at 255. Similarly, if the notice of appeal is untimely, the

Court of Appeals lacks subject matter jurisdiction over the

appeal. Id.; see also Tenn. R. App. P. 2 (stating that appellate

courts may not suspend the thirty-day time period for filing a

notice of appeal).

Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009) (footnotes omitted). In order to

determine if the thirty-day window for filing a notice of appeal is triggered, however, the

judgment appealed from must be a final judgment. An order that fails to adjudicate all of the

parties‟ claims does not trigger the commencement of the thirty-day period in which an

aggrieved party must file a notice of appeal. Id. Instead, “if multiple parties or multiple

claims for relief are involved in an action, any order that adjudicates fewer than all the claims

or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is

subject to revision at any time before entry of a final judgment adjudicating all the claims,

rights, and liabilities of all parties.” Tenn. R. App. P. 3(a).

8

To support her argument, Ms. Wilson relies on this Court‟s Opinion in City of

Memphis v. Lesley, No. W2012-01962-COA-R3CV, 2013 WL 5532732 (Tenn. Ct. App.

Oct. 7, 2013). In Lesley, the Commission ruled that the plaintiff was “still within her one-

year probationary period of employment when she was terminated, and therefore, she was not

entitled to a civil service hearing.” Id. at *9. Plaintiff filed a petition for judicial review in the

chancery court. According to the Court of Appeals, the only issue was whether plaintiff was a

probationary employee. Therein, the chancery court reversed the ruling of the Commission

and remanded for a hearing on the termination of plaintiff‟s employment. Because the order

of the chancery court “conclusively determined all issues before the [c]hancery [c]ourt on

their merits and left nothing for further judgment of that court,” the Court of Appeals

determined that the issue of plaintiff‟s probationary status was a final order at the time it was

entered by the trial court. Because the Commission delayed appealing that decision until after

an unfavorable decision from the Commission on remand (well beyond thirty days after the

entry of the judgment), the Court ruled that it lacked subject matter jurisdiction to consider

that issue. Id. at *9–*10.

The facts presented in Lesley are extremely unique and its holding should be narrowly

applied. Indeed, its holding only applies when the chancery court‟s judgment “conclusively

determine[s] all issues before the [c]hancery [c]ourt on their merits and le[aves] nothing for

further judgment of that court.” Id. at *9. Only then does the order of the chancery court, or

any court, become final and appealable. See Tenn. R. App. P. 3(a). From our careful review

of the facts in this case, the situation presented in Lesley is not present here. Instead, both the

May 14, 2013, and December 18, 2013 orders left matters unresolved in the chancery court,

and therefore, do not constitute final judgments.

In this case, the May 14, 2013 order is clearly not final. First, the trial court

undoubtedly intends to retain jurisdiction, evidenced by the fact that it gives the Commission

a specific time frame for carrying out the trial court‟s directives. More importantly, the May

14, 2013 order specifically states that “[a]ll other issues raised are reserved pending remand

of this matter.” Accordingly, the May 14, 2013 order does not resolve all the claims of the

parties and cannot constitute a final judgment from which an appeal will lie. See Tenn. R.

App. P. 3(a). Instead, the order was interlocutory in nature, and other proceedings and orders

were required to create a final judgment.

Although the December 18, 2013 order does not contain as clear an indication of the

trial court‟s intent to reserve certain issues for later consideration, we likewise conclude that

it did not constitute a final judgment. First, much like with the May 14, 2013 order, the trial

court clearly directs the Commission to respond to its ruling within a specific timeframe.

Furthermore, this order simply cannot constitute a final order on Ms. Wilson‟s petition for a

writ of certiorari because it fails to rule on her requested relief, an award of reinstatement

with full back pay and benefits, as well as attorney‟s fees. Without ruling on Ms. Wilson‟s

9

request, the trial court had not yet ruled on “all the claims, rights, and liabilities of all the

parties.” See Tenn. R. App. P. 3(a). Instead, the trial court‟s ruling was not final until the trial

court entered two additional orders: the August 11, 2014 order awarding Ms. Wilson

reinstatement, back pay, and benefits; and the November 20, 2014 order denying Ms.

Wilson‟s request for attorney‟s fees and other pending requests for relief.

Based on our holding that the May 14, 2013, and December 18, 2013 orders were not

final and appealable, we also find no merit in Ms. Wilson‟s contention that the City was

required to file its own petition for a writ of certiorari of the Commission‟s July 28, 2014

order indicating that the issues remanded to the Commission were moot. Clearly, this order

was part of the ongoing chancery court action. If Ms. Wilson‟s argument were correct, the

litigation would have been concluded by the Commission‟s July 28, 2014 order. The trial

court, therefore, would have lacked jurisdiction to award Ms. Wilson reinstatement, back

pay, and benefits. Clearly, Ms. Wilson does not intend this result. Accordingly, the City was

not required to file a separate writ of certiorari to contest the Commission‟s July 28, 2014

order. Instead, the chancery court proceeding was ongoing at that time. Additionally, because

the City filed a timely notice of appeal of the chancery court‟s final order, this Court properly

has jurisdiction to consider whether the chancery court erred in reversing the decision of the

Commission, including all interlocutory orders that were entered prior to that final order. See

generally Joslyn v. Sappington, 1 Tenn. 222, 223 (Tenn. Super. L. & Eq. 1806) (holding that

an appeal lies only from a final judgment after which the appellate court will review all

interlocutory proceedings); see also 5 C.J.S. Appeal and Error § 855 (“[A]n interlocutory

decision, order, or ruling [that] is not itself independently appealable may be reviewed on

appeal from a final judgment or decree.”).

II.

The City next argues that the trial court erred in substituting its judgment for that of

the Commission. As previously discussed, the Commission determined that the

preponderance of the evidence supported the termination of Ms. Wilson‟s employment due to

her violations of various rules concerning conduct. The Commission‟s decision is reviewed

pursuant to Tennessee Code Annotated Section 4-5-322, which provides, in pertinent part:

(a)(1) A person who is aggrieved by a final decision in a

contested case is entitled to judicial review under this chapter,

which shall be the only available method of judicial review. . . .

* * *

(h) The court may affirm the decision of the agency or remand

the case for further proceedings. The court may reverse or

modify the decision if the rights of the petitioner have been

10

prejudiced because the administrative findings, inferences,

conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence that is both substantial and

material in the light of the entire record.

(B) In determining the substantiality of evidence, the

court shall take into account whatever in the record fairly

detracts from its weight, but the court shall not substitute

its judgment for that of the agency as to the weight of the

evidence on questions of fact.

(i) No agency decision pursuant to a hearing in a contested case

shall be reversed, remanded or modified by the reviewing court

unless for errors that affect the merits of such decision.

The standard contained in Tennessee Code Annotated Section 4-5-322 was explained by this

Court in City of Memphis v. Civil Serv. Comm‟n of City of Memphis, 238 S.W.3d 238

(Tenn. Ct. App. 2007):

Upon confirming that an agency has employed the proper

legal principles in the case under review, this Court must then

consider the disputed factual findings and address whether the

agency had a reasonably sound basis for making those findings.

See McEwen v. Tenn. Dept. of Safety, 173 S.W.3d 815, 820

(Tenn. Ct. App. 2005). Like the trial court, this Court applies the

substantial and material evidence standard in reviewing the

agency‟s findings of fact. Bobbitt v. Shell, 115 S.W.3d 506,

509–10 (Tenn. Ct. App. 2003). Substantial and material

evidence is “such relevant evidence as a reasonable mind might

accept to support a rational conclusion” and to furnish a

reasonably sound basis for the decision under consideration.

City of Memphis v. Civil Serv. Comm‟n, 216 S.W.3d 311, 316

(Tenn. 2007) (quoting Jackson Mobilphone Co. v. Tenn. Pub.

11

Serv. Comm‟n, 876 S.W.2d 106, 110–11 (Tenn. Ct. App.

1993)); Dickson v. City of Memphis Civil Serv. Comm‟n, 194

S.W.3d 457, 464 (Tenn. Ct. App. 2005); Pruitt v. City of

Memphis, 2005 WL 2043542, at *7 (Tenn. Ct. App. Aug. 24,

2005); Bobbitt, 115 S.W.3d at 510.45 As directed by the statute,

we take into account whatever in the record fairly detracts from

the weight of the evidence, but we may not substitute our own

judgment on questions of fact by re-weighing the evidence. See

Tenn. Code Ann. § 4-5-322(h)(5)(B). When the agency conducts

a hearing and can evaluate the witnesses as they testify, this

Court gives the tribunal‟s credibility determinations great

weight. Pruitt, 2005 WL 2043542, at *7. Moreover, the

substantial and material evidence standard does not justify

reversal of an administrative decision only because the evidence

could also support another result. Martin v. Sizemore, 78

S.W.3d 249, 276 (Tenn. Ct. App. 2001). Rather, we may reject

an administrative determination only if a reasonable person

would necessarily arrive at a different conclusion based on the

evidence. Id. Likewise, Tennessee Code Annotated Section 4-5-

322(h)(4) permits a reviewing court to modify or reverse an

administrative decision if it is “[a]rbitrary or capricious or

characterized by abuse of discretion or clearly unwarranted

exercise of discretion.” Tenn. Code Ann. § 4-5-322(h)(4)

(2005). A decision unsupported by substantial and material

evidence is arbitrary and capricious. City of Memphis v. Civil

Serv. Comm‟n, 216 S.W.3d 311, 315 (Tenn. 2007). Yet, a clear

error of judgment can also render a decision arbitrary and

capricious notwithstanding adequate evidentiary support. Id. at

316. A decision is arbitrary or capricious if it “is not based on

any course of reasoning or exercise of judgment, or . . .

disregards the facts or circumstances of the case without some

basis that would lead a reasonable person to reach the same

conclusion.” Id. (quoting Jackson Mobilphone, 876 S.W.2d at

110–11).

City of Memphis, 238 S.W.3d at 243.

Because the Commission‟s decision involves the termination of a City employee, we

also must consider the standard of review contained in the Charter of the City of Memphis.

According to this Court:

12

Section 246 of the Charter of the City of Memphis

provides that “[t]he City may terminate, suspend, or demote an

employee for just cause, and the employee shall be given a

written notice of the reasons for the action taken.” Charter of

City of Memphis § 246 (renumbered as section 7 under article

34 by ordinance number 3233, adopted Aug. 31, 1982).

Moreover, when an employee appeals to the Civil Service

Commission for a review of disciplinary action, section 248

provides that “the burden of proof required to sustain the action

of the city shall be by a preponderance of the evidence. If, after

a presentation of the proof, the commission finds that there

exists a reasonable basis for the disciplinary action taken, the

action of the City shall be sustained.” Charter of City of

Memphis § 248 (renumbered as section 9 under article 34 by

ordinance number 3233, adopted Aug. 31, 1982).

City of Memphis, 238 S.W.3d at 243–44.

A chancery court reviewing a case under Tennessee Code Annotated Section 4-5-322

“shall reduce its findings of fact and conclusions of law to writing and make them parts of

the record.” Tenn. Code Ann. § 4-5-322(j). This Court has indicated that Tennessee Code

Annotated Section 4-5-322(j) requires that the chancery court make “detailed findings” to

support its ruling. Swift Roofing, Inc. v. State, No. M2010-02544-COA-R3CV, 2011 WL

2732263, at *7 (Tenn. Ct. App. July 13, 2011). Findings of fact and conclusions of law in

other contexts have been held to “facilitate appellate review by affording a reviewing court a

clear understanding of the basis of a trial court‟s decision.” Lovlace v. Copley, 418 S.W.3d 1,

34 (Tenn. 2013) (citing Estate of Bucy v. McElroy, No. W2012-02317-COA-R3-CV, 2013

WL 1798911, at *3–4 (Tenn. Ct. App. Apr. 26, 2013)).

In this case, the trial court‟s ruling is sparse at best. The final order states:

1. That the Civil Service Commission erred when it determined

that the [Memorandum of Understanding] is a binding method to

impose discipline upon an employee.

2. The Court finds that without consideration of the

Memorandum of Understanding as a basis for discipline, the

notice of disciplinary action provided to [Ms. Wilson] at most

supports suspension, not termination, based on the City of

Memphis Personnel Policies and Departmental Work Rules.

13

3. That the Petitioner is reinstated to her previous position with

back pay and benefits.

Although the trial court entered two other orders regarding the effect, if any, of the

Memorandum of Understanding, they offer little illumination as to the trial court‟s reasoning

beyond what is stated above. From these orders it is difficult to discern the exact basis for

the trial court‟s ruling, specifically with regard to which of the Tennessee Code Annotated

Section 4-5-322(h) prongs serves as basis for reversing the decision of the Commission.

The Tennessee Supreme Court previously considered a case wherein one party alleged

that the factual findings and legal conclusions of the Public Service Commission were fatally

insufficient. See CF Indus. v. Tennessee Pub. Serv. Comm‟n, 599 S.W.2d 536 (Tenn. 1980).

Therein, the Court held that the requirement that the agency make findings of fact “„is not a

mere technicality but is an absolute necessity without which judicial review would be

impossible.‟” Id. at 541 (quoting Levy v. State Bd. of Examiners, Etc., 553 S.W.2d 909, 911

(Tenn. 1977)). The Court explained that:

The sufficiency of an agency‟s findings of fact must be

measured against the nature of the controversy and the intensity

of the factual dispute. It is obvious that where there is no

disputed issue of fact and the sole question before the agency is

the proper conclusion to be drawn from the undisputed facts and

the application of the correct legal rules, the record need not be

burdened with detailed findings of fact. In such a case the facts

need only be recited.

At the other end of the spectrum are those cases wherein

the issues of fact are sharply contested and the proof is

conflicting. There a detailed finding of fact dovetailed to the

record is a practical and legal imperative. Thus, the nature of the

finding necessarily varies from case to case.

CF Indus., 599 S.W.2d at 541; see also Charter of City of Memphis § 248 (“The decision of

the Commission shall be stated in writing and shall include the Commission‟s findings of fact

and conclusions therefrom.”).

This Court in Mack v. Civil Serv. Comm‟n of City of Memphis, No. 02A01-9807-

CH-00215, 1999 WL 250180 (Tenn. Ct. App. Apr. 28, 1999), however, held that the

specificity requirement found in CF Industries does not apply to the findings and

conclusions of the trial court, but only to the findings of the agency. Id. at *4. As this Court

explained:

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The standard of review at the trial level and appellate level is the

same. The court must review the factual issues and the decision

of the Commission must stand if it is supported by substantial

and material evidence. The findings of fact relevant to this

inquiry are the findings of fact of the Commission. While § 4-5-

322 requires the reviewing court to reduce its findings of fact

and conclusions of law to writing and makes them part of the

record, the specificity requirement applies to the Commission.

The purpose of findings and conclusions is to aid the court in

determining the reasons behind the agency decision, and

whether the agency‟s conclusion is based on sufficient evidence.

CF Indus[., 599 S.W.2d] at 541 (emphasis added).

Mack, 1999 WL 250180, at *3. Accordingly, the Court held that the trial court‟s findings,

though sparse, were sufficient to afford appropriate appellate review. Id. at *4; but see King

v. Shelby Cnty. Gov‟t Civil Serv. Merit Bd., No. W2006-01079-COA-R3-CV, 2006 WL

2506718, at *5 (Tenn. Ct. App. Aug. 31, 2006) (vacating the order of the trial court for, inter

alia, failing to make findings of fact and conclusions of law pursuant to Tenn. Code Ann. §

4-5-322(j)); Barrom v. City of Memphis Civil Serv. Comm‟n, No. W2011-01248-COA-R3-

CV, 2011 WL 5420365, at *5 (Tenn. Ct. App. Nov. 9, 2011) (vacating the trial court‟s

judgment on other grounds, but noting that the trial court‟s order was also deficient in that it

failed to make findings of fact and conclusions of law pursuant to Tenn. Code Ann. § 4-5-

322(j)).

The trial court‟s order in this case, however, fails to make sufficient findings to afford

appropriate appellate review. First, we note that although an interlocutory order by the trial

court indicated that the supplemental order of the Commission was deficient for failing to

contain the signature of two commissioners, the trial court‟s final order makes no mention of

this purported deficiency. Although Ms. Wilson at oral argument appeared to assume that the

trial court‟s ruling regarding the deficiency of the supplemental order remained in place, that

conclusion is not necessarily warranted. Instead, because of the order‟s interlocutory nature,

it was subject to change by the trial court at any time prior to entry of the final judgment. See

Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983) (holding that an interlocutory order “can be

revised at any time before the entry of judgment adjudicating all the claims and rights and

liabilities of all parties” (citing Stidham v. Fickle Heirs, 643 S.W.2d 324, 325 (Tenn. 1982)).

Due to the omission of any discussion regarding this purported deficiency in the trial court‟s

final order, we would be required to speculate whether the trial court maintained its

conclusion that the supplemental order was fatally deficient, or instead, agreed with the

Commission that the retirement of one member of the panel was a sufficient excuse for the

deficiency.

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The trial court‟s order also makes no mention of whether it considered only the

original order issued by the Commission, or also the supplemental order issued by the

Commission after remand to the trial court. Additionally, the trial court‟s order fails to cite

any legal authorities utilized to reach its decision or the narrow standard of review applicable

in these types of cases. Further, the order contains no recitation of the facts relied upon by the

trial court in reaching its decision.

More importantly, the trial court‟s order is unclear as to the basis for the trial court‟s

decision. The trial court makes no mention of the evidence presented to the Commission;

accordingly, we can only assume that the trial court found that the Commission‟s

determination that Ms. Wilson‟s conduct violated the Public Works Rules, the Personnel

Manual, and the Memorandum of Understanding was supported by substantial and material

evidence. Instead, the trial court‟s order can be construed in two ways: (1) that the “notice of

disciplinary action”7 provided to Ms. Wilson did not provide sufficient notice because the

April 9, 2009 decision letter provided that Ms. Wilson‟s employment would be terminated on

the basis of the Memorandum of Understanding, a purportedly inappropriate basis for

discipline; or (2) that Ms. Wilson‟s violations of the Public Works Rules and the Personnel

Manual, considered alone, were insufficient to support the harsh penalty of termination. From

the trial court‟s order, we are unable to discern which, if any, of these bases the trial court

actually relied upon. Accordingly, we are “left to wonder on what basis the court reached its

ultimate decision.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8

(Tenn. Ct. App. May 15, 2009). Thus, the trial court‟s findings of fact and conclusions of law

are clearly deficient.

The confusion regarding the trial court‟s order was further demonstrated at oral

argument. During a colloquy between this Court and counsel for Ms. Wilson regarding the

trial court‟s judgment, counsel for Ms. Wilson attempted to clarify his interpretation of the

trial court‟s order as involving the notice provided to Ms. Wilson by the May 15, 2009

decision letter, rather than the severity of the penalty imposed. A member of this panel noted,

however, that “given that the order doesn‟t say much else, it doesn‟t say where there is not

substantial and material evidence to support the Civil Service Commission‟s findings. It

makes the comment that it supports suspension but not termination, and therefore, she should

be reinstated.” Counsel for Ms. Wilson argued that Ms. Wilson‟s position in the trial court

was that the Commission‟s findings were either “[i]n excess of the statutory authority” or

“[m]ade upon unlawful procedure” because the decision letter only gave Ms. Wilson notice

7

To even reach this issue, we must assume that by taking issue with the “notice of disciplinary action,”

the trial court is referring to the May 15, 2009 decision letter, rather than the April 9, 2009 Notice of Fact

Finding Hearing.

16

that her employment would be terminated for her violations of the Memorandum of

Understanding, rather than any of the appropriate authorities. See Tenn. Code Ann. § 4-5-

322(h). The panel member responded that “the trial court‟s order doesn‟t say that. The trial

court‟s order never mentions unlawful procedure or that there‟s not substantial and material

evidence to support the [] Commission‟s findings.” Instead, the panel member indicated that

a reasonable construction of the trial court‟s final order was not that the May 15, 2009

decision letter provided inadequate notice of termination, but that the penalty was too severe,

considering only the violations of the Public Works Rules and the Personnel Manual. Clearly,

this interaction indicates that the trial court‟s order fails to provide a sufficiently clear

indication of its reasoning to facilitate appellate review.

As previously discussed, because the standard of review requires this Court to review

the decision of the Commission rather than the trial court, a trial court‟s failure to make

sufficient findings of fact and conclusions of law will not always be fatal. See Mack, 1999

WL 250180, at *3. Instead, we are required to review the Commission‟s decision to ensure

that the petitioner‟s rights have not been prejudiced by any of the five methods contained in

Tennessee Code Annotated Section 4-5-322(h). See Metro Gov‟t of Nashville, Etc. v.

Schacklett, 554 S.W.2d 601 (Tenn. 1977); Goldsmith v. Roberts, 622 S.W.2d 438 (Tenn. Ct.

App. 1981). In this case, however, Ms. Wilson has failed to offer any argument in her brief

on the correctness of the Commission‟s ruling. Rather than focus on the Commission‟s

decision, or indeed, even the trial court‟s decision, Ms. Wilson devotes her brief to the

jurisdictional issue considered supra. Accordingly, Ms. Wilson‟s brief contains no argument

regarding what, if any, errors were made by the Commission that prejudiced her rights.8

Typically, the burden to show that an agency‟s decision should be reversed pursuant to

Tennessee Code Annotated Section 4-5-322(h) falls on the party seeking to overturn the

agency decision. See generally Sierra Club v. Tenn. Dep‟t of Health & Env‟t, Div. of Water

Pollution Control, No. 01-A-01-9203CH00131, 1992 WL 288870, at *2 (Tenn. Ct. App.

Oct. 16, 1992) (holding that a party appealing from an agency decision “must carry a heavy

burden to show that the Board‟s findings were arbitrarily made”).9 Thus, the fact that her

8

Ms. Wilson‟s counsel did discuss the purported illegalities in the Commission‟s decision at oral

argument. However, oral argument is not a substitute for adequate briefing. See generally PNC Multifamily

Capital Institutional Fund XXVI Ltd. P‟ship v. Mabry, 402 S.W.3d 654, 662 (Tenn. Ct. App. 2012) (holding

that the appellant waived an issue where he raised the issues at oral argument, but failed to raise it in his

appellate brief).

9

Further, the failure to raise an affirmative issue in the statement of issues section of the party‟s

appellate brief or to argue an issue in the argument section of an appellate brief generally constitutes a waiver

of the issue on appeal. See Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002). Rule 27

of the Tennessee Rules of Appellate Procedure, however, generally only requires that an appellee‟s brief

contain a statement of the issues presented for review “[i]f [the] appellee is also requesting relief from the

judgment.” Tenn. R. App. P. 27(b); see also Forbess v. Forbess, 370 S.W.3d 347, 357–58 (Tenn. Ct. App.

17

brief contains no argument regarding any alleged errors committed by the Commission in

rendering its decision prevents this Court from meaningfully reviewing the merits of this

case.

Under these circumstances, we must conclude that appellate review is hampered in

two ways: (1) by the trial court‟s failure to make findings of fact and conclusions of law as

required by Tennessee Code Annotated Section 4-5-322(j); and (2) by Ms. Wilson‟s failure to

offer any argument regarding the errors made by the Commission in her appellate brief.

Although we may have been inclined to overlook one deficiency, coupled together, these

deficiencies make appellate review unworkable. We cannot discern the trial court‟s reason

for reversing the decision of the Commission, and Ms. Wilson‟s brief offers little to no help

in determining what errors were purportedly made by the Commission that support a reversal

of the termination of Ms. Wilson‟s employment. In our view, the best course of action is to

allow both parties to re-litigate this issue in the trial court. We understand that this will cause

a further delay in this case; however, we cannot ignore the General Assembly‟s clear

directive that trial courts reviewing agency decisions make appropriate findings of fact and

conclusions of law to support their decisions or our directive to only consider the issues

properly raised and argued by the parties. See Tenn. Code Ann. § 4-5-322(j); Tenn. R. App.

P. 13(b). Accordingly, the judgment of the trial court reversing the decision of the

Commission is vacated, and this cause is remanded to the trial court for further proceedings

consistent with this Opinion. Costs of this appeal are taxed one-half to Appellant, the City of

Memphis, and its surety, and one-half to Appellee, Dyanna Wilson, for all of which

execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

2011) (discussing the briefing requirements applicable to appellees raising affirmative issues). Because Ms.

Wilson prevailed in the trial court in reversing the judgment of the Commission and only seeks to uphold the

trial court‟s judgment, she does not appear to be seeking any affirmative relief from this Court. Accordingly,

her failure to brief this issue does not result in a waiver.

18