Mark George v. Shelby County Board of Education

02/08/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 18, 2017 Session

MARK GEORGE v. SHELBY COUNTY BOARD OF EDUCATION

Appeal from the Chancery Court for Shelby County

No. CH-15-0622 James R. Newsom, Chancellor

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No. W2016-01191-COA-R3-CV

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This is a teacher tenure case. Appellant, a tenured teacher employed by Appellee Shelby

County Board of Education, was fired for insubordination and conduct unbecoming.

Appellant appealed the Shelby County School Board’s decision to the Chancery Court for

Shelby County. In a post-trial motion, Appellee petitioned the court to consider an email

notification of the board’s decision that was sent to Appellant’s attorney. Specifically,

Appellee argued that the email constituted statutory notice to the Appellant so as to start the

thirty-day time period for filing an appeal of the board’s decision in the trial court. Tenn.

Code Ann. 49-5-513(b). The trial court denied the motion as newly discovered evidence.

We conclude that the email goes directly to the question of whether the Appellant’s petition

was timely so as to confer subject-matter jurisdiction on the trial court. Accordingly, the

trial court erred in treating the motion as one for permission to file “newly discovered

evidence.” Because the trial court applied an incorrect legal standard in ruling on the

admissibility of the email evidence and did not address the question of its subject-matter

jurisdiction, we vacate the trial court’s order and remand for further proceedings.

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

Vacated and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,

and BRANDON O. GIBSON, JJ., joined.

Kathleen Laird Caldwell, Memphis, Tennessee, for the appellant, Mark George.

Kenneth Melton Walker, II, Jennifer Hinds Collins, and Rodney Gregory Moore, Memphis,

Tennessee, for the appellee, Shelby County Board of Education.

OPINION

I. Background

Appellant Mark George began his career with Appellee Shelby County Board of

Education (the “Board”) in 1997. He was a substitute teacher with the Shelby County

Schools (“SCS”) from 1997 until he was hired as an interim teacher in April of 2001. Mr.

George achieved tenure status on July 21, 2005. During the time he was employed by

Appellee, Mr. George was involved in several incidents; however, the incident that

immediately preceded the termination of his employment occurred on May 14, 2014. This

incident involved a Colonial Middle School 8th grader. Mr. George directed the student to

sit, and the student failed to comply. Mr. George then walked to the back of the room and

grabbed the student and pulled his shirt. Mr. George did not initially report the incident, but

the student, who was involved in the incident, reported it, and two other students

corroborated the student’s account. When questioned, Mr. George admitted that he got

“nose to nose” with the student and “there might have been a chest bump.” The student later

requested that the matter not be pursued, but he never recanted his statement. Mr. George

was suspended effective May 20, 2014.

In August of 2014, tenure charges were brought against Mr. George; these charges

included conduct unbecoming a teacher and insubordination. Tenn. Code Ann. §§ 49-5-

501(3), (7). Mr. George requested, and was granted, an administrative hearing, which was

held on February 3 and 4, 2015. Tenn. Code Ann. §49-5-512. On February 26, 2016, the

Hearing Officer entered findings of fact and conclusions of law, finding that Mr. George had

engaged in unprofessional conduct and insubordination in connection with the May 14, 2014

incident. The Hearing Officer sustained the Superintendent’s recommendation of dismissal.

Mr. George then appealed the Hearing Officer’s ruling to the Board, which held an appeals

hearing on April 2, 2015. Following arguments, the Board voted unanimously to uphold the

Hearing Officer’s findings of insubordination and conduct unbecoming and the Hearing

Officer’s recommendation of dismissal. Mr. George filed a petition for writ of certiorari in

the Chancery Court (“trial court”) on May 7, 2015. The administrative record was

transmitted to the trial court. In addition to the administrative record, the trial court also

heard evidence concerning Mr. George’s allegations of disparate treatment. The trial court

entered its findings of fact and conclusions of law on May 10, 2016, upholding the

Appellee’s decision to terminate Mr. George’s employment. Mr. George appeals.

II. Issues

Mr. George raises the following issues for review:

1. Whether Mr. George was denied due process. From the argument

section of his brief, it appears that Mr. George makes several arguments

concerning alleged violation of due process:

(A) the written charges were defective under TCA § 49-5-511, i.e., the notice

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did not reference the form from the Commissioner of Education; and the

notice did not include the Tenure Teacher dismissal policy or Board

resolution;

(B) the written charges contained immaterial allegations that were prejudicial

to Mr. George, i.e., the charges referenced the earlier incidents.

(C) Appellee did not meet its burden to show that Mr. George engaged in

conduct unbecoming a teacher.

(D) Appellee did not meet its burden to show that Mr. George was

insubordinate.

(E) The trial court disregarded the burden and order of proof and denied Mr.

George the opportunity to cross-examine the witnesses.

2. Whether Mr. George was treated differently from other similarly

situated teachers.

Appellee raises a threshold issue of whether Appellant’s petition for writ of certiorari

in the trial court was timely. Because Appellee’s timeliness issue goes directly to the

question of whether the trial court had subject-matter jurisdiction to hear Mr. George’s

appeal, we will address this issue first.

III. Timeliness of Mr. George’s Petition in the Chancery Court

Tennessee Code Annotated Section 49-5-513(b) provides, in relevant part, that “[t]he

petition shall be filed within thirty (30) days from the receipt by the teacher of notice of the

decision of the board.” At the hearing before the Chancellor, Appellees argued that Mr.

George received notice of the Board’s decision on April 2, 2015, which is the date of the

Board hearing where the Board announced its decision orally. The Chancellor opined that

oral notice did not satisfy the notice requirement and overruled Appellee’s objection.

However, after the hearing concluded (but before the trial court entered its final order),

Appellee filed a motion seeking permission to file “newly discovered evidence.” This

“newly discovered evidence” was an April 6, 2015 email correspondence, which was sent

from the Board’s secretary to Mr. George’s attorney, with the Board’s decision letter

attached. The Board also sent the letter to Mr. George by certified mail on the same day.

Based on the email evidence, Appellees averred that Mr. George’s May 7, 2015 petition for

writ of certiorari was untimely. Specifically, Appellee argued that, if the April 6, 2015 email

was sufficient notice to Mr. George, his petition was filed on the 31st day and was untimely

under Tennessee Code Annotated Section 49-5-513(b).

As noted above, Appellee couched its post-trial offer of proof as “newly discovered

evidence,” and the motion was heard on December 18, 2015. On December 21, 2015, the

trial court entered an order denying Appellee’s motion. The order states, in relevant part,

that Appellee’s “[m]otion for permission to file additional, newly discovered evidence is not

found to be well taken and is denied as being in contradiction to Tennessee Code Annotated

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§ 49-5-513(g).” Tennessee Code Annotated Section 49-5-513(g) addresses appeals to the

Chancery Court under the Teacher Tenure Act and provides that

[t]he cause shall stand for trial and shall be heard and determined at the

earliest practical date, as one having precedence over other litigation, except

suits involving state, county or municipal revenue. The review of the court

shall be limited to the written record of the hearing before the board and any

evidence or exhibits submitted at the hearing. Additional evidence or

testimony shall not be admitted except as to establish arbitrary or

capricious action or violation of statutory or constitutional rights by the

board.

Tenn. Code Ann. §49-5-513(g) (emphasis added). We glean from the trial court’s December

21, 2015 order that because the email evidence did not go directly to the question of whether

the Board’s actions were arbitrary or capricious, the trial court held that the email was

inadmissible. Although the trial court held that the email was inadmissible, it allowed

Appellees to treat the proffered evidence as an offer of proof and permitted both sides to

make arguments related to its admissibility.

Although we agree that the proffered email does not bear on the nature of the Board’s

actions, it does bear directly on the timeliness of Mr. George’s petition in the trial court. As

such, the email evidence goes to the trial court’s subject-matter jurisdiction to hear Mr.

George’s appeal. “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 (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 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.”).

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In its May 10, 2016 order, the trial court acknowledges that the email evidence goes to

the timeliness of Mr. George’s petition:

In a post-trial offer of proof, SCS submitted proof that the executive secretary

to the General Counsel of SCS sent a letter by e-mail to Mr. George’s counsel

on April 6, 2015 which constituted written notice with regard to Mr. George’s

termination. . . . Mr. George filed his Petition on Thursday, May 7, 2015 —

that is, thirty-one (31) days after formal notice to Mr. George by the SCS of

his termination. See Tenn. Code Ann. §49-5-513(b) (“The petition shall be

filed within thirty (30) days from the receipt by the teacher of notice of the

decision of the board.”).

Despite its acknowledgment that the email could bear on the question of whether Mr. George

had satisfied the filing requirement set out at Tennessee Code Annotated Section 49-5-

513(b), the trial court ultimately excluded the email and held that Appellee “failed to submit

proof that Mr. George’s Chancery petition was untimely filed at trial.” In so ruling, the court

clearly treated the email as “newly discovered evidence,” stating, in relevant part, that

Appellee

contends that the proof of Mr. George’s untimely filing was newly discovered

a few hours after the trial before the court. [Appellee] does not demonstrate

that the “newly discovered” evidence was unavailable to it prior to trial or

could not have been discovered prior to trial with the exercise of reasonable

diligence. Cf. Tenn. R. Civ. P. 59.04(2). The Affidavit of Glenda Haskins

demonstrates that the evidence at issue was available to [Appellee] at the time

of trial — it being in the possession of the executive secretary to the General

Counsel of [Appellee] at all times subsequent to its generation on April 6,

2015.

The court concludes that [Appellee] failed to act with reasonable

diligence in presenting proof of Mr. George’s untimely filing at trial. “In [a]

non-jury case, until the matter has been finally submitted to the trial judge for

decision, the ‘trial’ of the case has not been concluded. The trial judge may

order further proof to be taken, may reopen the proof for various purposes,

extend the time for filing briefs, and the like.” Weedman v. Searcy, 781

S.W.2d 855, 857 (Tenn. 1989). In this instance, the matter had been finally

submitted to the court for decision, and the trial had been concluded. While the

court permitted [Appellee] to make an offer of proof on the subject, the court

does not exercise its discretion to reopen the proof in this instance. The court

rules that [Appellee] waived its contention that Mr. George’s Petition

was,untimely filed.

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Although Appellee filed its motion as one for permission to file newly discovered evidence,

the proffered email is not simply an evidentiary offer; rather, it is germane to the question of

the trial court’s jurisdiction to hear Mr. George’s appeal. Courts should give effect to the

substance of motions rather than to their form or title. See Brundage v. Cumberland Cnty.,

357 S.W.3d 361, 371 (Tenn. 2011); Abshure v. Methodist Healthcare–Memphis Hosps.,

325 S.W.3d 98, 104 (Tenn. 2010); Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn.1995).

Furthermore, because questions of jurisdiction may be raised at any time, the fact that

Appellee did not tender its motion until after the close of proof is not fatal to the offer. In

treating the motion under the discretionary standard applicable to motions concerning newly

discovered evidence, the trial court ostensibly ignored the question of its jurisdiction over the

appeal. The question of jurisdiction must be answered before the trial court may engage in a

de novo review of the Board’s decision. Accordingly, we vacate the trial court’s order and

remand for adjudication of the jurisdiction question. As set out above, although the trial

court allowed the parties to argue as to the admissibility of the email evidence, no evidence

was adduced as to whether the email satisfies the statutory notice requirement, i.e., whether

the email constitutes “receipt by the teacher of notice of the decision of the board.” Tenn.

Code Ann. §49-5-513(b). Accordingly, although we remand with instructions for the trial

court to consider the email, we do not go so far as to hold that the email satisfies the statutory

language. Our holding, therefore, does not preclude the trial court from allowing further

evidence on the question of whether the email satisfies the statutory notice requirement.

V. Conclusion

For the foregoing reasons, we vacate the trial court’s order and remand for such

further proceedings as may be necessary and are consistent with this opinion, including, but

not limited to: (1) consideration of the email evidence; (2) determination of whether the

email evidence satisfied the statutory notice requirement; and (3) determination of whether

Appellant’s petition was timely filed so as to confer subject-matter jurisdiction on the trial

court. Costs of the appeal are assessed to the Appellant, Mark George and his surety, for all

of which execution may issue if necessary.

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KENNY ARMSTRONG, JUDGE

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