Larry E. Parrish, P. C. v. Nancy J. Strong

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 20, 2016 Session

LARRY E. PARRISH, P. C. v. NANCY J. STRONG, ET AL

Appeal from the Chancery Court for Lincoln County

No. C13039 J. B. Cox, Chancellor

___________________________________

No. M2015-02495-COA-R9-CV – Filed October 7, 2016

___________________________________

This is a Tennessee Rule of Appellate Procedure 9 Interlocutory appeal. Upon further

review, we have determined that none of the issues certified for interlocutory appeal are

properly before us. Accordingly, we vacate our order granting interlocutory appeal and

dismiss the appeal.

Tenn. R. App. P. 9 Interlocutory Appeal; Appeal Dismissed

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ANDY D. BENNETT and

ARNOLD B. GOLDIN, JJ., joined.

Timothy T. Ishii and Max D. Fagan, Nashville, Tennessee, for the appellant, Nancy J. Strong.

Larry Parrish, Memphis, Tennessee, Pro Se.

OPINION

I. Background

The instant case has a long and complicated procedural history, including a previous

appeal to this Court. See Parrish v. Dodson, et al., No M2011-00349-COA-R3-CV, 2011

WL 4529607 (Tenn. Ct. App. Sept. 29, 2011). As is relevant to the instant appeal, Appellee

Larry Parrish, PC filed the instant lawsuit against Appellant Nancy J. Strong as an “In Rem

Complaint to Trace and Recovery Res.” By the complaint, Appellee sought to prosecute a

chose-in-action clause that was assigned by Ms. Strong in payment of attorney’s fees owed to

Appellee for filing a legal malpractice action against an attorney, who previously represented

Ms. Strong. Although Appellee sought affirmative relief from Ms. Strong, she was only

identified in the complaint as a “non-party respondent,” and no summons was issued or

served on her. Nonetheless, in response to the complaint, Ms. Strong filed an answer and

counter-complaint against Larry Parrish, PC, alleging legal malpractice, breach of contract,

and breach of fiduciary duty. In the alternative, Ms. Strong sought to invalidate the chose-in-

action assignment clause of the parties’ agreement. The case was bifurcated and tried to a

jury.

On September 2, 2014, the jury returned a verdict on the first phase of the trial. The

verdict form reflects the jury’s finding that, although the parties’ agreement was valid, Mr.

Parrish’s firm had breached the contract. The jury awarded Ms. Strong compensatory

damages to reimburse her for attorney’s fees and costs of the action. The court reduced the

jury’s compensatory damages verdict to judgment of $194,978.70 on November 4, 2014. In

addition to compensatory damages, the jury also found that Ms. Strong was entitled to

punitive damages, the amount of which would be determined in the second phase of the

bifurcated trial.

Before the second phase of the trial was set, Ms. Strong filed various motions in an

attempt to pierce the corporate veil, so as to have Mr. Parrish held personally liable for the

damages assessed against his firm. Ultimately, the trial court denied Ms. Strong’s motions to

pierce the corporate veil. However, by the time the veil question had been adjudicated,

twelve months had expired since the jurors were first summoned for jury service. Ms. Strong

moved the trial court to reconvene the jury that had decided the first phase of the case so that

it could also decide the amount of punitive damages. By order of December 12, 2015, the

trial court held that it did not have jurisdiction to re-empanel the same jury. The December

12, 2015 order provides:

Upon review of [Ms. Strong’s] oral motion to reconvene the current jury, or in

the alternative, empanel a different jury to assess the proper amount of punitive

damages to be awarded against [Appellee], this Court rules that, pursuant to

T.C.A. § 22-1-101, this Court does not have jurisdiction to require the jurors,

summoned to serve in this case in July 2014, to reconvene for the punitive

damages stage of these proceedings beyond the twelve months next preceding

the date of their summons to serve. Furthermore, this Court rules that it is

premature in these proceedings to consider empanelling a new jury to assess

the proper amount of punitive damages to be awarded against [Appellee].

Both parties moved the trial court for permission to file an interlocutory appeal. The

trial court granted the motion. This Court granted the interlocutory appeal by order entered

on February 1, 2016.

-2-

II. Issues

In our February 1, 2016 order granting the interlocutory appeal, this Court certified the

following issues for review:

1. Whether the trial court may require the jurors, summoned to serve in

July of 2014, to reconvene for the punitive damage stage of the proceedings

even though more than twelve months have passed since the date of their

summons was served.

2. Whether, if the original jury cannot be reconvened, the trial court may

empanel a new jury to assess the proper amount of punitive damages to be

awarded.

3. Whether the answers of the jury to the questions submitted and the jury

verdict are valid and binding on the parties if a separate jury is empanelled to

decide the amount of punitive damages, if any, to award.

III. Analysis

Before addressing the foregoing issues, we first address whether this appeal is

properly before this Court for interlocutory review. Subject matter jurisdiction concerns the

authority of the court to hear a matter and cannot be waived. Meighan v. U.S. Sprint

Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996). The Court may consider the

question of subject matter jurisdiction sua sponte. Tenn. R. App. P. 13(b); Ruff v. State, 978

S.W.2d 95, 98 (Tenn. 1998). Tennessee Rule of Appellate Procedure 9 provides for review

of interlocutory orders only in certain limited instances. Rule 9 states, in pertinent part:

(a) Application for Permission to Appeal; Grounds. Except as provided in

Rule 10, an appeal by permission may be taken from an interlocutory order of

a trial court . . . only upon application and in the discretion of the trial and

appellate court. In determining whether to grant permission to appeal, the

following, while neither controlling nor fully measuring the courts’ discretion,

indicate the character of the reasons that will be considered: (1) the need to

prevent irreparable injury, giving consideration to the severity of the potential

injury, the probability of its occurrence, and the probability that review upon

entry of final judgment will be ineffective; (2) the need to prevent needless,

expensive, and protracted litigation, giving consideration to whether the

challenged order would be a basis for reversal upon entry of a final judgment,

the probability of reversal, and whether an interlocutory appeal will result in a

net reduction in the duration and expense of the litigation if the challenged

order is reversed; and (3) the need to develop a uniform body of law, giving

consideration to the existence of inconsistent orders of other courts and

whether the question presented by the challenged order will not otherwise be

-3-

reviewable upon entry of final judgment. Failure to seek or obtain interlocutory

review shall not limit the scope of review upon an appeal as of right from entry

of the final judgment.

In addition to the Tennessee Rule of Appellate Procedure 9 criteria for granting

interlocutory appeals, in order for this Court to consider a case, the case must be justiciable.

The doctrine of justiciability was discussed by the Tennessee Supreme Court as follows:

Tennessee’s courts believed that “the province of a court is to decide,

not advise, and to settle rights, not to give abstract opinions.” State v. Wilson,

70 Tenn. 204, 210 (1879); see also Gilreath v. Gilliland, 95 Tenn. 383, 385-

86, 32 S.W. 250, 251 (1895); Prichitt v. Kirkman, 2 Tenn. Ch. 390, 393

(1875).

Accordingly, they limited their role to deciding “legal controversies.”

White v. Kelton, 144 Tenn. 327, 335, 232 S.W. 668, 670 (1921). A proceeding

qualifies as a “legal controversy” when the disputed issue is real and existing,

see State ex rel. Lewis v. State, 208 Tenn. 534, 536-37, 347 S.W.2d 47, 48

(1961), and not theoretical or abstract, State v. Brown & Williamson Tobacco

Corp., 18 S.W.3d 186, 192 (Tenn.2000); Miller v. Miller, 149 Tenn. at 474,

261 S.W. at 968; State ex rel. Lewis v. State, 208 Tenn. at 538, 347 S.W.2d at

48-49, and when the dispute is between parties with real and adverse interests.

Memphis Publ'g Co. v. City of Memphis, 513 S.W.2d 511, 512 (Tenn.1974).

Justiciability doctrines assist the courts in determining whether a

particular case presents a legal controversy. The justiciability doctrines

recognized by Tennessee courts mirror the justiciability doctrines employed by

the United States Supreme Court and the federal courts. . . . These doctrines

include: (1) the prohibition against advisory opinions, (2) standing, (3)

ripeness, (4) mootness, (5) the political question doctrine, and (6) exhaustion

of administrative remedies.

Norma Faye Pyles Lynch Family Purpose LLC v. Putnam County, 301 S.W.3d 196, 203

(Tenn. 2009).

In the instant case, based on the parties’ concession at oral argument (discussed infra),

we conclude that issue one certified for interlocutory review is no longer in dispute. “A case

must remain justiciable (remain a legal controversy) from the time it is filed until the moment

of final appellate disposition.” Id. at 204 (citing State v. Ely, 48 S.W.3d 710, 716 n. 3

(Tenn.2001); Alliance for Native Am. Indian Rights, Inc. v. Nicely, 182 S.W.3d [333,] at

338 [(Tenn. Ct.. App. 2005)]; 1 Ronald D. Rotunda & John E. Nowak, Treatise on

Constitutional Law § 2.13(c)(ii), at 261 (4th ed. 2007)). “A moot case is one that has lost its

justiciability either by court decision, acts of the parties, or some other reason occurring after

commencement of the case.” Id. (citing West v. Vought Aircraft Indus., Inc., 256 S.W.3d

-4-

[618,] at 625 [(Tenn. 2008)]; McCanless v. Klein, 182 Tenn. [631,] at 637, 188 S.W.2d

[745,] at 747 [(Tenn. 1945)]; McIntyre v. Traughber, 884 S.W.2d [134,] at 137 [(Tenn. Ct.

App. 1994)]). “A case will be considered moot if it no longer serves as a means to provide

some sort of judicial relief to the prevailing party.” Id. (citing Knott v. Stewart County, 185

Tenn. [623,] at 626, 207 S.W.2d [337,] at 338-39 [(Tenn. 1948)]; Bell v. Todd, 206 S.W.3d

86, 96 (Tenn. Ct. App. 2005); Massengill v. Massengill, 36 Tenn. App. 385, 388-89, 255

S.W.2d 1018, 1019 (1952)). In other words, there must be an actual dispute between parties

with real and adverse interests. Memphis Publ'g Co. v. City of Memphis, 513 S.W.2d 511,

512 (Tenn.1974).

Concerning issue one, at oral argument of this case, the parties conceded that the trial

court had not erred in declining to reconvene the jury that decided the first phase of the

bifurcated trial for the purpose of determining the amount of punitive damages in the second

phase of the trial. Specifically, Ms. Strong’s attorney, Mr. Ishii, stated: “In a rare []

concurrence . . . both parties agree that, under Tennessee Code [22]-1-101, the trial court

does not have the power to re-summon jurors [that had originally been] summoned.”

Tennessee Code Annotated Section 22-1-101 provides:

It is policy of this state that all qualified citizens have an obligation to serve on

petit juries or grand juries when summoned by the courts of this state, unless

excused. Every person eighteen (18) years of age, being a citizen of the United

States, and a resident of this state, and of the county in which the person may

be summoned for jury service for a period of twelve (12) months next

preceding the date of the summons, is legally qualified to act as a grand or petit

juror, if not otherwise incompetent under the express provisions of this title.

Following Mr. Ishii’s statement that the foregoing statute negates a trial court’s “power to re-

summon jurors” after twelve months, this Court asked Mr. Ishii the following question:

“[The statute] says [the jury] can’t be summoned for jury service. [It] doesn’t say they can’t

be further empaneled to complete a case that they started within that one year period. You

don’t see any difference in that?” Mr. Ishii answered, “No, Your Honor, I don’t.” Mr. Ishii

then explained his interpretation of the statute to be that, “from the time [a juror] begins

service as actual jurors, that’s when the time starts running.”

During his argument, Mr. Larry Parrish, on behalf of Larry E. Parrish, PC, attempted

to answer the panel’s question as follows:

Would [the jury] be summoned if they were continuing in a trial, which had

started, even though the twelve months ran out. I would think that there is not

a summons, a re-summoning of them, but. . . the way I read the statute is that

they just run out of authority after twelve months. So . . . would they have to be

dismissed? My understanding of the law is that they would.

-5-

Without rendering an opinion as to whether the parties’ interpretation of Tennessee

Code Annotated Section 22-1-101 is correct, in light of the parties’ mutual agreement that the

trial court was correct in denying the motion to re-empanel the original jury, there is no

longer a “dispute . . . between parties with real and adverse interests.” Memphis Publ'g Co.,

513 S.W.2d at 512. In the absence of a challenge to the trial court’s ruling on issue one, we

decline to conduct an interlocutory review of this issue.

As to the remaining issues, as set out above, the trial court did not decide the issue of

whether a new jury should be empaneled for the second phase of the trial. Rather, the court

stated: “[T]his Court rules that it is premature in these proceedings to consider empanelling a

new jury to assess the proper amount of punitive damages to be awarded against [Appellee].”

In short, the trial court neither empaneled a new jury, nor specifically declined to do so. In

failing to make a decision, the trial court appears to seek advice from this Court as to how to

proceed with the second phase of its bifurcated trial. A trial court cannot grant an

interlocutory appeal for the sole purpose of obtaining an advisory opinion from this Court.

Rather, the Court of Appeals is a reviewing court, which may only render an opinion after the

trial court has made some determination. To do otherwise, would require this Court to make

an initial determination as to what law controls. This “is not the province of the Appellate

Court in an interlocutory appeal.” Farmers Mut. of Tennessee v. Atkins, No. E2011-01903-

COA-R9-CV, 2012 WL. 982998 (Tenn. Ct. App. March 21, 2012). In Farmers Mutual of

Tennessee, we explained:

Rule 9 provides that an interlocutory appeal may be taken from an order

entered in the trial court that is not otherwise appealable. See Tenn. R. App. P.

9 (providing that “an appeal by permission may be taken from an interlocutory

order ” and requiring the trial court to state “the legal criteria making the order

appealable”) (emphasis added). Further, this Court is only authorized to correct

errors made by the trial court. See Tenn. R. Ct. App. 6(a)(1)-(3) (requiring

statements in appellate briefs of the “alleged erroneous action of the trial

court,” “how such alleged error was seasonably called to the attention of the

trial court,” and how the “appellant was prejudiced by such alleged error”)

(emphasis added); see also Alsip v. Johnson City Med. Ctr., No. E2004-

00831-COA-R9-CV, 2005 WL 1536192, at *7 (Tenn. Ct. App. June 30, 2005)

(describing this Court as “an error-correcting intermediate appellate court”). In

addition, the only errors that may be corrected on interlocutory appeal are

errors concerning the specific issue or issues certified on appeal. See

Tennessee Dep't of Mental Health and Mental Retardation v. Hughes, 531

S.W.2d 299, 300 (Tenn.1975) (noting that “[w]hen dealing with an

interlocutory appeal, the Court can and will deal only with those matters

clearly embraced within the question certified to it”).

-6-

Farmers Mut. of Tennessee, 2012 WL 982998, at *4. In this case, the trial court made no

decision concerning issues two and three. Therefore, there is no order for us to review.

“Without a determination and entry of an order reflecting that determination, this Court has

nothing to review and no error to correct [vis-à-vis issues one and two].” Farmers Mutual of

Tennessee, 2012 WL 982998, at *5. Because any opinion rendered by this Court would be

advisory at this point, issues two and three are not within our purview, and we decline to

address them here. Because the three issues certified by this Court are presently outside the

scope of appellate review, we vacate our order of February 1, 2016 granting leave to file an

interlocutory appeal, dismiss the appeal, and remand the case to the trial court.

IV. Conclusion

For the foregoing reasons, this Court’s grant of an interlocutory appeal pursuant to

Rule 9 of the Tennessee Rules of Appellate Procedure is vacated, and this matter is remanded

to the trial court for further proceedings. The appeal is dismissed with costs of the appeal

assessed to the Appellant, Nancy J. Strong, and her surety, for all of which execution may

issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

-7-