State of Tennessee v. Julia Hurley, Loudon County Commissioner For The 2nd Judicial District

06/22/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 12, 2021 Session

STATE OF TENNESSEE v. JULIA HURLEY, LOUDON COUNTY

COMMISSIONER FOR THE 2ND JUDICIAL DISTRICT

Appeal from the Chancery Court for Loudon County

No. 12751 Frank V. Williams, III, Chancellor

___________________________________

No. E2020-01674-COA-R10-CV

___________________________________

We granted this extraordinary appeal to determine whether the trial court erred in denying

the defendant’s motion to dismiss for lack of subject matter jurisdiction. Because the trial

court considered the proper statute, the relevant facts, and the arguments advanced by the

parties, we conclude that the application for an extraordinary appeal was improvidently

granted. We therefore dismiss this appeal.

Tenn. R. App. P. 10 Extraordinary Appeal; Appeal Dismissed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, and CARMA DENNIS MCGEE, JJ., joined.

T. Scott Jones and Gena Lewis, Knoxville, Tennessee, for the appellant, Julia Hurley.

Russell Johnson, District Attorney General, and Jason S. Collver, Assistant Attorney

General, for the appellee, State of Tennessee - Civil.

OPINION

I. PROCEDURAL HISTORY

On March 26, 2020, the State of Tennessee (“Appellee”), on relation of the District

Attorney General for the Ninth Judicial District of Tennessee, filed a petition of quo

warranto in the Chancery Court for Loudon County (the “trial court”) against

Defendant/Appellant Julia C. Hurley, as Loudon County Commissioner for the 2nd

Commission District (“Appellant”), on information of Henry Cullen, a Loudon County

Commissioner. The petition alleged that Appellant was unlawfully holding office because

she had moved out of her district. Following the prayer for relief was the following

statement: “I, Henry Cullen, a citizen of Loudon County agree as Surety, to be held and

firmly bound unto the Chancery Court Clerk of Loudon County, Tennessee for the payment

of all costs awarded against the Petitioner.” Mr. Cullen signed under a line designated

“Surety.”

On April 20, 2020, Appellant filed a motion to dismiss the complaint, arguing that

Appellee failed to comply with Tennessee Code Annotated section 29-35-110, which

provides as follows:

(a) The suit is also brought on the information of any person, upon such

person giving security for the costs of the proceedings, to be approved by the

clerk of the court in which the bill is filed.

(b) When the suit is brought at the relation of a private individual, it shall be

so stated in the bill and proceedings, and such individual is responsible for

costs in case they are not adjudged against the defendant.

Appellant asserted that Mr. Cullen failed to comply with the statute because he did not

submit a proper surety bond, which necessitates the involvement of a third-party, citing

Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013

WL 593911, at *1 (Tenn. Ct. App. Feb. 15, 2013), overruled on other grounds by Griffin

v. Campbell Clinic, P.A., 439 S.W.3d 899, 904 (Tenn. 2014) (“The surety bond . . .

involves a third party: the surety.” (citing State v. Thammavong, No. 97,278, 2008 WL

762507, *1 (Kan. Ct. App. Mar. 21, 2008)).1 And because the bond is mandatory and

jurisdictional under the precedent set in Johnson v. Hopkins, 432 S.W.3d 840 (Tenn.

2013), Appellant argued that the suit was not validly commenced and should be dismissed.

On May 29, 2020, Appellee filed a response arguing that Mr. Cullen’s signature was

sufficient to comply with the statute, which did not expressly require the use of a bond to

secure the judgment. Moreover, Appellee submitted that any failure to comply with the

statute could be cured by amending the complaint to add additional security under

Tennessee Code Annotated section 20-12-124, which provides as follows:

Any person required by law to give security for costs may, at any stage of

the cause, be ruled to give such security, if it has not previously been done,

or to justify or give new or additional security on sufficient cause shown.

Finally, Appellee argued that because both Bernatsky and Johnson involved appellate

bonds, “there is no basis within the case[s] . . . to support [Appellant’s] assertion that

1

Thammavong is unpublished. Under Kansas Supreme Court Rule 7.04(f) unpublished opinions

are not binding precedent and are “not favored for citation” except in limited circumstances set forth in the

rule. Kan. Sup. Ct. R. 7.04(f).

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security for costs is a prerequisite to filing a lawsuit.” See Johnson, 432 S.W.3d at 848–49

(citing Tenn. Code Ann. § 29-18-130) (involving the “bond, with good and sufficient

security” that must be posted by a tenant who appeals from a landlord-tenant action);

Bernatsky, 2013 WL 593911, at *1 (citing Tenn. Code Ann. § 27-5-103) (involving the

“bond with good security” required to appeal a general sessions court judgment to circuit

court).

A hearing on the motion to dismiss occurred on July 23, 2020. The trial court

eventually entered a written order denying the motion to dismiss on October 21, 2020.

Therein, the trial court ruled that Appellant’s motion to dismiss “was appropriate insomuch

as the manner in which the petition was filed,” but further ruled that “the [c]ourt is going

to allow [Appellee] to provide such sufficient surety as deemed necessary by the Clerk and

Master to satisfy the requirements therein rather than require a dismissal of the suit in

question.”

On November 4, 2020, Appellant filed a motion in the trial court for leave to file an

interlocutory appeal of the trial court’s denial of her motion to dismiss.2 Therein, Appellant

cited the need to develop a uniform body of law and the need to prevent needless litigation

as the bases for her request. Appellee responded in opposition to the motion on December

1, 2020. The trial court denied Appellant’s motion without explanation by order of

December 17, 2020.

On December 15, 2020, Appellant filed an application for extraordinary appeal of

the trial court’s order denying Appellant’s motion to dismiss in this Court, under Rule 10

of the Tennessee Rules of Appellate Procedure. This Court granted the appeal on February

3, 2021, limited to the following issue: “Whether the Trial Court erred in denying the

motion to dismiss and allowing Appellee ‘to provide such sufficient surety as deemed

necessary by the Clerk and Master to satisfy the requirements’ of Tennessee Code

Annotated section 29-35-110.”

II. ANALYSIS

Because the trial court declined to dismiss this action, this appeal comes to us from

a non-final judgment. Under the Tennessee Rules of Appellant Procedure, appeals from

non-final judgments may be had by permission under either Rule 9 or 10. Under Rule 9,

an aggrieved party must timely seek permission from both the trial court and the appellate

court in order to prosecute such an appeal. See generally Tenn. R. App. P. 9. A Rule 9

appeal is appropriate when one or more of the following non-exclusive circumstances is

present:

2

The motion also sought to appeal the trial court’s ruling that District Attorney General Russell

Johnson did not have a conflict of interest that precluded him from representing Appellee, but that is not at

issue in this appeal.

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(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 reviewable upon entry of final judgment.

Tenn. R. App. P. 9(a).

A Rule 10 extraordinary appeal, however, requires only the consent of the appellate

court, rather than approval of the trial court. But the circumstances in which a Rule 10 may

be granted are far more circumscribed. As the Tennessee Supreme court explained,

“[e]xtraordinary appeals are only appropriate ‘(1) if the lower court has so far departed

from the accepted and usual course of judicial proceedings as to require immediate review,

or (2) if necessary for complete determination of the action on appeal as otherwise provided

in [the Rules of Appellate Procedure].’” Gilbert v. Wessels, 458 S.W.3d 895, 898 (Tenn.

2014) (quoting Tenn. R. App. P. 10(a)). According to the Advisory Commission Comment

to Rule 10, “[t]he circumstances in which review is available . . . are very narrowly

circumscribed to those situations in which the trial court or the intermediate appellate court

has acted in an arbitrary fashion, or as may be necessary to permit complete appellate

review on a later appeal.” In other words, “[a]n appellate court should grant a Rule

10 extraordinary appeal only when the challenged ruling represents a fundamental

illegality, fails to proceed according to the essential requirements of the law, is tantamount

to the denial of a party’s day in court, is without legal authority, is a plain and palpable

abuse of discretion, or results in either party losing a right or interest that may never be

recaptured.” Id. (citing State v. McKim, 215 S.W.3d 781, 791 (Tenn. 2007) (noting that

these are the same considerations applicable to the common law writ of certiorari)). Thus,

compared to a Rule 10, a Rule 9 application may be granted “under far less egregious

circumstances.” Id. Indeed, appeals under Rule 10 “are reserved only

for extraordinary departures from the accepted and usual course of judicial

proceedings.” Id. (citing Jones v. Vasu, 326 S.W.3d 577, 578 (Tenn. Ct. App. 2010)).

On this basis, the Tennessee Supreme Court has directed us to use caution in

granting appeals under Rule 10:

It is important for appellate courts to exercise restraint in

granting Rule 10 appeals. Under our Rules, the appellate courts have no

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authority to unilaterally interrupt a trial court’s orderly disposition of a case

unless the alleged error rises to the level contemplated by the high standards

of Rule 10. We note that parties who are unsuccessful in obtaining the trial

court’s permission for a Rule 9 appeal sometimes respond by petitioning the

appellate court for permission to appeal under Rule 10. However, unless the

trial court’s alleged error qualifies for immediate review under the specific

criteria indicated by Rule 10, the appellate court must respect the trial court’s

discretionary decision not to grant permission to appeal under Rule 9 and

refrain from granting a Rule 10 appeal. Those alleged errors not rising to the

level required by Rule 10 can be reviewed in the normal course of an appeal

after a final judgment has been entered.

Id. at 898–99.

In Gilbert, our supreme court concluded that we had not properly exercised the

discretion afforded us under Rule 10:

In this case, there was no extraordinary departure from the accepted

and usual course of judicial proceedings; the trial court adhered to established

legal standards. Trial courts have discretionary authority to determine

whether the contiguous state limitation should be waived. See Sutphin v.

Platt, 720 S.W.2d 455, 458 (Tenn. 1986) (noting that Tennessee Code

Annotated section 29-26-115(b) vests the trial judge with the authority to

waive the contiguous state limitation). Moreover, “questions regarding the

admissibility, qualifications, relevancy[,] and competency of expert

testimony are left to the discretion of the trial court.” McDaniel v. CSX

Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997) (citing State v.

Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). Discretionary evidentiary

rulings, regardless of their merit, rarely constitute the types of extraordinary

departures from the usual and accepted course of judicial proceedings

that Rule 10 contemplates.

The record in this case establishes that the trial court considered the

proper statute, the relevant facts, and the arguments advanced by the parties.

As such, the trial court did not so far depart from the accepted and usual

course of judicial proceedings as to require immediate review, nor was an

extraordinary review necessary for a complete determination of the action on

appeal. If the trial court did err, [the plaintiff] may raise the issue in an appeal

as of right after a final judgment is entered.

Gilbert, 458 S.W.3d at 899. Since the Gilbert decision, this Court has at least once

determined that a Rule 10 application was improvidently granted. See Kaur v. Singh, No.

W2016-02058-COA-R10-CV, 2017 WL 445149, at *7 (Tenn. Ct. App. Feb. 2, 2017)

(citing Gilbert, 458 S.W.3d at 898–99) (determining that the application was

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“improvidently granted” because the trial court “considered the proper statute, the relevant

facts, and the arguments advanced by the parties”).

Although the situation is less clear here, we likewise conclude that Appellant’s Rule

10 application was improvidently granted in this case. Appellant frames the question in

this case as an issue of first impression. Because Rule 9 appeals are expressly authorized

when necessary to create a uniform body of law, see Tenn. R. App. P. 9(a), Tennessee

courts often grant Rule 9 applications on issues of first impression.3 See, e.g., Chaney v.

Team Techs., Inc., 568 S.W.3d 576 (Tenn. 2019); Dialysis Clinic, Inc. v. Medley, 567

S.W.3d 314 (Tenn. 2019); Young v. City of LaFollette, 479 S.W.3d 785 (Tenn. 2015);

Phillips v. Montgomery Cty., 442 S.W.3d 233, 237 (Tenn. 2014); State v. McCoy, 459

S.W.3d 1, 8 (Tenn. 2014); Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41,

42 (Tenn. 2013); Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 488 (Tenn. 2013);

Garrison v. Bickford, 377 S.W.3d 659 (Tenn. 2012); Lind v. Beaman Dodge, Inc., 356

S.W.3d 889, 894 (Tenn. 2011); Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850,

853 (Tenn. 2010); State v. Seale, No. M2019-01913-CCA-R9-CD, 2020 WL 4045227, at

*1 (Tenn. Crim. App. July 20, 2020); Burns v. State, 601 S.W.3d 601 (Tenn. Ct. App.

2019), perm. app. denied (Tenn. Mar. 26, 2020); Phillips v. Rural Metro of Tennessee,

L.P., No. E2016-02440-COA-R9-CV, 2017 WL 4877455 (Tenn. Ct. App. Oct. 30, 2017);

Meyers v. First Tennessee Bank, N.A., 503 S.W.3d 365 (Tenn. Ct. App. 2016); Patterson

v. Shelter Mut. Ins. Co., No. M2014-01675-COA-R9-CV, 2015 WL 5320231 (Tenn. Ct.

App. Sept. 11, 2015); Hudson v. Town of Jasper, No. M2013-00620-COA-R9-CV, 2013

WL 5762224, at *3 (Tenn. Ct. App. Oct. 22, 2013); Dale v. B & J Enterprises, No. E2011-

01790-COA-R9-CV, 2012 WL 1655778 (Tenn. Ct. App. May 10, 2012); Brooks Cotton

Co. v. Williams, 381 S.W.3d 414 (Tenn. Ct. App. 2012); Roberts v. McNeill, No. W2010-

01000-COA-R9-CV, 2011 WL 662648, at *7 (Tenn. Ct. App. Feb. 23, 2011).

In contrast, Tennessee appellate courts have not frequently granted applications

under Rule 10 merely because the dispute involved an issue of first impression. Indeed, the

majority of cases in which this situation was presented were in the criminal law context,

rather than the civil. See generally Himmelfarb v. Allain, 380 S.W.3d 35 (Tenn. 2012)

(originating as an appeal under Rule 10 as to an issue of first impression); Holton v. State,

201 S.W.3d 626 (Tenn. 2006), as amended on denial of reh’g, (June 22, 2006) (granting

an extraordinary appeal that had been denied by the intermediate appellate court as to an

issue of first impression); Patterson v. Tennessee Dep’t of Lab. & Workforce Dev., 60

S.W.3d 60 (Tenn. 2001) (same); Younger v. Okbahhanes, No. E2020-00429-COA-R10-

CV, 2021 WL 289332 (Tenn. Ct. App. Jan. 28, 2021) (involving a Rule 10 concerning a

“matter of first impression in Tennessee”); State v. Morrow, No. 02C01-9601-CC-00022,

1996 WL 170679 (Tenn. Crim. App. Apr. 12, 1996) (allowing a Rule 10 appeal of an issue

of first impression because the Rule 10 “application is the prescribed mechanism for an

3

We note that the need to develop a uniform body of law was one of the bases cited in Appellant’s

motion for leave to file a Rule 9 application.

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appeal of a trial court’s decision regarding media coverage”); Ball v. State, 891 S.W.2d

240 (Tenn. Crim. App. 1994) (involving a Rule 10 concerning a matter of first impression);

State v. Crawford, 783 S.W.2d 573 (Tenn. Crim. App. 1989) (same); State v. Turner, 713

S.W.2d 327 (Tenn. Crim. App. 1986) (same); see also Culbertson v. Culbertson, 455

S.W.3d 107 (Tenn. Ct. App. 2014) (citing Culbertson v. Culbertson, 393 S.W.3d 678

(Tenn. Ct. App. 2012)) (describing a prior Rule 10 appeal as involving an issue of first

impression). The fact that few Rule 10 applications have been granted on the basis of the

need to decide an issue of first impression may be explained by the fact that fewer Rule 10

applications are granted, relative to Rule 9 applications. However, it could also result from

the fact that a trial court likely does not so far depart from the usual and accepted course of

proceedings when there is no accepted course in place yet under Tennessee law.

A somewhat more recent case illustrates this point. In Jones v. Windham, this Court

grappled with an issue of law that was characterized as an issue of first impression by one

of the panel members. See Jones v. Windham, No. W2015-00973-COA-R10-CV, 2016

WL 943722, at *13 (Tenn. Ct. App. Mar. 11, 2016) (Gibson, J., dissenting), appeal

granted, judgment vacated (Tenn. Aug. 19, 2016) (hereinafter “Jones I”) (“This case

presents an issue of first impression in Tennessee.”). The Tennessee Supreme Court

nevertheless concluded that it was not appropriate for review under Rule 10. See Jones v.

Windham, No. W2015-00973-SC-R11-CV (Tenn. Aug. 19, 2016). Unfortunately, our

supreme court chose to issue only a per curium order in Jones, so the only insight into its

basis for dismissing the case was that “the trial court did not so far depart from the accepted

and usual course of judicial proceedings as to require immediate review and because a

review is not necessary for a complete determination of the action on appeal.” Id.

Importantly, the Jones appeal involved only a question of law, rather than the discretionary

decision that was at issue in Gilbert. See Jones I, 2016 WL 943722, at *3. Moreover, the

majority opinion noted that there was a split of authority as to the dispositive issue. Id. This

was apparently not sufficient, however, to justify extraordinary review. Cf. State v.

Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980) (holding that while an application was

“procedurally proper” due to an issue not having been “heretofore decided,” it should

nevertheless be “denied on its merits” because it did not meet the requirements of State v.

Johnson, 569 S.W.2d 808 (Tenn. 1978), i.e., that the challenged ruling represents a

fundamental illegality, fails to proceed according to the essential requirements of the law,

is tantamount to the denial of a party’s day in court, is without legal authority, is a plain

and palpable abuse of discretion, or results in either party losing a right or interest that may

never be recaptured).

Respectfully, we conclude that the same is true in this case. Here, the dispute

concerns the proper interpretation and application of Tennessee Code Annotated section

29-35-110. In particular, the parties dispute whether Appellee properly complied with that

statute’s requirement to give “security for the costs of the proceedings.” Appellant asserts

that this requirement is mandatory and jurisdictional and that the failure to provide a bond

was fatal to Appellee’s action. In support, Appellant cites Johnson v. Hopkins, 432 S.W.3d

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840 (Tenn. 2013), which involved a statutory bond required to appeal a judgment in the

landlord-tenant context.

In contrast, Appellee contends that Johnson is entirely inapplicable as it involves a

different statutory scheme employing language different from section 29-35-110. The

language actually at issue, Appellee submits, required only that the clerk approve the

security, and another statute, Tennessee Code Annotated section 20-12-124, expressly

allowed the trial court to increase the security if necessary. Thus, Appellee argues that there

was no jurisdictional defect that required dismissal of its cause of action. Consequently,

neither party contends that any controlling caselaw interpreting section 29-35-110

mandated a particular result in the trial court. Instead, the parties simply disagree as to how

this statute should be interpreted, given caselaw and other relevant statutes.4

We concede that in the context of an appeal from a final judgment or even a proper

Rule 9 interlocutory appeal, divining generally applicable rules from similar, but not

identical, caselaw is a common requirement of this Court. But appeals from final judgments

occur as of right, and therefore require no exercise of discretion as to whether this Court

should interfere with the normal course of the trial court’s proceeding. See generally Tenn.

R. App. P. 3 (providing that appeals of final judgments are “as of right”). Even appeals

under Rule 9 are fundamentally different, as Advisory Committee comments to Rule 10

emphasize that the burden to justify our interference is far more “narrowly circumscribed”

under Rule 10 than under Rule 9. Tenn. R. App. P. 10 adv. comm. cmt.

Under the circumstances present in this case, we must conclude that the record does

not reveal “an extraordinary departure[] from the accepted and usual course of judicial

proceedings.” Gilbert, 458 S.W.3d at 898 (emphasis added). Like the court in Gilbert, the

trial court’s written order denying the motion to dismiss demonstrates “that the trial court

considered the proper statute, the relevant facts, and the arguments advanced by the

parties.” Id. at 899. Under these circumstances, our supreme court has held that no

extraordinary departure occurred so as to justify an extraordinary appeal. Id.; see also

Kaur, 2017 WL 445149, at *7 (applying this framework to conclude that the Rule 10

application was improvidently granted). And the Jones case makes clear that issues of first

impression are not automatically entitled to review under Rule 10. As such, the situation

does not rise to the high level necessary to justify interference in the trial court’s orderly

4

In our view, this appeal therefore involves a multitude of sometimes overlapping questions: (1)

whether the requirements of section 29-35-110 are mandatory and jurisdictional; (2) whether the statement

in Appellee’s complaint satisfied the requirements of section 29-35-110; and (3) whether section 20-12-

124 may be used to correct any deficiency. Respectfully, the trial court’s order is somewhat ambiguous and

does not appear to resolve many of these disputes, other than allowing the deficiency in the security

provided to be corrected. In a different case, we held that an interlocutory appeal was not ripe when the trial

court failed to answer the dispositive question presented. See generally Farmers Mut. of Tennessee v.

Atkins, No. E2011-01903-COA-R9-CV, 2012 WL 982998, at *5 (Tenn. Ct. App. Mar. 21, 2012).

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disposition of the case. Id. at 898.

Of course, Appellant did not assert in her application for an extraordinary appeal

that the trial court had so far departed from the usual course of proceedings as to necessitate

immediate review.5 Instead, she argued that she would “lose a right or interest that may

never be recaptured.” Id. at 898 (citing McKim, 215 S.W.3d at 791). Respectfully, we

disagree.

The Tennessee Supreme has provided the following guidance on the use of this

reason as justification for extraordinary relief;

In entertaining and acting upon this discretionary writ,[6] in my view, a

critical consideration is the existence of an effective, available and

expeditious appellate remedy. The mere fact that an appeal may ultimately

afford a vehicle for the presentation of the errors asserted may well be of no

significance. The right or interest sought to be protected may be eroded or

devitalized notwithstanding the successful pursuit of an appeal. Again, the

ultimate test must be whether, absent the use of the common law writ, either

party to a criminal action loses a right or forfeits an interest that can never be

recaptured.

State v. Johnson, 569 S.W.2d 808, 815 (Tenn. 1978). In State v. Johnson, the Tennessee

Supreme Court held that this consideration was present where the trial court granted a

motion to suppress evidence against the defendant, as the trial court’s ruling was “in effect

a judgment of acquittal” and that “the State’s only avenue of relief against a suppression

order, plainly and palpably erroneous, is by the common law writ of certiorari.” Id. at 811,

814. Because “[the] State ha[d] no other remedy,” the State’s interest had “been destroyed”

and the writ of certiorari was proper. Id. at 816.

Applying this rule, we have previously held that a right could not be recaptured

when a parent had no other avenue to appeal a ruling which required her to produce her

mental health records despite a statutory privilege. See In re Lucas H., No. W2020-00122-

COA-R3-JV, 2021 WL 2137991, at *4 (Tenn. Ct. App. May 26, 2021) (“[G]iven the nature

of the privilege at stake in this case, the present matter uniquely implicates a right or interest

that is subject to being lost forever if not protected.”). In that situation, requiring the parent

5

Appellant also did not assert that review was “necessary for complete determination of the

action[.]” Tenn. R. App. P. 10(a)(2). As discussed in detail, infra, review of the final judgment is sufficient

in this case.

6

Although Johnson involved a common law writ of certiorari, it is well-settled that the same

considerations are applicable in determining whether to grant a Rule 10 extraordinary appeal. See McKim,

215 S.W.3d at 791 (“This Court has stated that a Rule 10 extraordinary appeal will lie whenever the

prerequisites for common law certiorari exist[.]”).

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to await a final judgment to review the disclosure decision “would be of no avail” because

the records would have already been disclosed. Id. at *5. On that basis, we held that relief

pursuant to the common law writ of certiorari was proper. Id. at *6–7. Cf. State v. Gallaher,

730 S.W.2d 622 (Tenn. 1987) (holding that “[t]he ruling of the trial judge [striking a prior

conviction from an indictment] resulted in the State losing a right that could never

be recaptured,” presumably due to double jeopardy concerns).

Here, Appellant expresses concerns that a case upon which she asserts the trial court

has no subject matter jurisdiction could result in her removal from elected office. We agree

that such an outcome is a possibility. But this possibility simply does not amount to the

loss of an interest that may never be recaptured. As an initial matter, we note that nothing

in Rule 10 automatically qualifies issues of subject matter jurisdiction as proper candidates

for Rule 10 review. See generally Tenn. R. App. P. 10. Instead, issues of subject matter

jurisdiction may be litigated at any time, including on direct appeal. See Johnson v.

Hopkins, 432 S.W.3d at 844 (“[S]ubject matter jurisdiction is a threshold inquiry, which

may be raised at any time in any court.”). Moreover, regardless of how the issue reaches

us, issues of subject matter jurisdiction are reviewed de novo in this Court. See Northland

Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (“Since a determination of whether

subject matter jurisdiction exists is a question of law, our standard of review is de novo,

without a presumption of correctness.”). As such, appeal following a final judgment does

not place Appellant in any materially different position than if this issue was resolved at

this juncture. Appellant has therefore not demonstrated that the alleged error by the trial

court cannot “be reviewed in the normal course of an appeal after a final judgment has been

entered.” Gilbert, 458 S.W.3d at 899.

The possibility of an adverse judgment likewise does not “destroy” Appellant’s

interest in her position. See State v. Johnson, 569 S.W.2d at 816. Both the Tennessee Rules

of Civil Procedure and Appellate Procedure contain avenues for Appellant to seek a stay

of any trial court ruling against her pending appeal. See Tenn. R. Civ. P. 62.01 (providing

that “in actions to remove a public officer” an interlocutory or final judgment is not stayed

unless ordered by the court); Tenn. R. Civ. P. 62.03 (providing that in “actions specified in

Rule 62.01” the court may in its discretion “suspend relief or grant whatever additional or

modified relief is deemed appropriate during the pendency of the appeal”); Tenn. R. Civ.

P. 62.04 (allowing a stay on appeal upon the giving of a bond); Tenn. R. App. P. 7

(providing the procedure for obtaining appellate review of a trial court’s stay decision).

Moreover, even setting aside the issue of Appellant’s ability to seek a stay, we must

conclude concerns about the events that may take place following a final judgment are

somewhat exaggerated. In her application, Appellant contends that “if on direct appeal, this

court agrees with defendant that the trial court lacked jurisdiction, then the remedy for such

a situation is unclear.” In the very next sentence, however, Appellant concedes the proper

remedy: “If the lawsuit is a nullity, then any ouster would be improper.” Indeed, it is well-

settled that a judgment entered without subject matter jurisdiction is void and of no effect.

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See, e.g., In re Baby, 447 S.W.3d 807, 837 (Tenn. 2014) (“In consequence, if the juvenile

court lacked jurisdiction as to a particular subject matter, its ruling as to that issue is a

nullity.”); In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012) (“[T]he orders and

judgments entered by courts without jurisdiction over the subject matter of a dispute are

void. . . .”). But see Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015) (detailing certain

exceptional circumstances, not at issue here, under which a void judgment will be given

effect). Thus, while such a situation may cause disruption, there is no uncertainty as to the

proper remedy should it be demonstrated that the trial court lacked subject matter

jurisdiction. Moreover, it certainly does not rise to the level of other cases in which

appellate review of the dispute at issue would be futile if the trial court proceedings were

permitted to continue because there would be no way to “‘unring the proverbial bell[.]’”

Autin v. Goetz, 524 S.W.3d 617, 637 (Tenn. Ct. App. 2017) (quoting Dispatch Printing

Co. v. Recovery Ltd. P’ship, 2006-Ohio-1347, ¶ 13, 166 Ohio App.3d 118, 123, 849 N.E.2d

297, 301) (involving “potentially damaging and confidential documents [that] were

exchanged”); see also In re Lucas, 2021 WL 2137991, at *4 (holding that a right could

not be recaptured in this situation).

In our view, then, the most significant difference between interlocutory relief and

an appeal of the final judgment in this case is the delay and expense that may result from a

full trial. Indeed, this was one of the bases that was cited by Appellant as justifying leave

to file a Rule 9 application with this Court. This was a proper basis for seeking relief under

Rule 9, as the Tennessee Supreme Court has chosen to make that a consideration in

determining whether to grant a Rule 9 interlocutory appeal. See Tenn. R. App. P. 9(a)

(directing the court to consider “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” in determining whether to grant a Rule 9

application). It has chosen not to include that language in Rule 10. See generally Tenn. R.

App. P. 10. We presume that the Tennessee Supreme Court’s decision to exclude this

language from Rule 10 was intentional. See State v. Welch, 595 S.W.3d 615, 623 (Tenn.

2020) (quoting State v. Loden, 920 S.W.2d 261, 265 (Tenn. Crim. App. 1995)) (“The

canon of statutory construction expressio unius est exclusio alterius provides that ‘where

the legislature includes particular language in one section of a statute but omits it in another

section of the same act, it is generally presumed that the legislature acted purposefully in

the subject included or excluded.’”); see also Thomas v. Oldfield, 279 S.W.3d 259, 261

(Tenn. 2009) (“Although the rules of civil procedure are not statutes, the same rules of

statutory construction apply in the interpretation of rules.”). Thus, the threat of unnecessary

or expensive litigation that is likely to be overturned on appeal is not sufficient alone to

justify an extraordinary appeal under Rule 10. And we have been cautioned that we cannot

interfere in the trial court’s jurisdiction simply because the trial court did not grant what

may have been an appropriate Rule 9 application. See Gilbert, 458 S.W.3d at 899 (“The

appellate court must respect the trial court’s discretionary decision not to grant permission

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to appeal under Rule 9 and refrain from granting a Rule 10 appeal.”).

In sum, we cannot conclude that the stringent requirements of Rule 10 have been

met in this case. As a result, we conclude that Appellant’s application for an extraordinary

appeal was improvidently granted. We therefore dismiss this appeal.

III. CONCLUSION

This extraordinary appeal is dismissed, and the case is remanded to the trial court

for further proceedings. Costs of this appeal are taxed to the Appellant Julia C. Hurley, for

which execution may issue, if necessary.

S/ J. Steven Stafford

J. STEVEN STAFFORD, JUDGE

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