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
                       ___________________________________

                            No. W2016-01191-COA-R3-CV
                        ___________________________________


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.


                                                    _________________________________
                                                    KENNY ARMSTRONG, JUDGE




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