IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 19, 2012 Session
SANDI D. JACKSON v. TENNESSEE BOARD OF NURSING
Direct Appeal from the Chancery Court for Davidson County
No. 09-895-I Claudia C. Bonnyman, Chancellor
No. M2012-00241-COA-R3-CV - Filed October 11, 2012
The Tennessee Department of Health filed civil charges against Nurse Jackson alleging that
she had inappropriately prescribed medications for her daughter. Before a hearing on the
merits was held, however, the Department filed a Notice of Nonsuit without prejudice. After
an Order of Voluntary Dismissal was entered, Nurse Jackson filed a Petition in the chancery
court seeking dismissal of the case against her with prejudice, as well as her attorney fees
expended, claiming that the Board of Nursing had subjected her to an unwarranted
investigation and prosecution which was “not well grounded in fact and was not warranted
by existing law, rule or regulation[.]” She did not, however, seek a consideration of the
merits of the charges against her. The chancery court dismissed Nurse Jackson’s Petition.
We find that the chancery court lacked subject matter jurisdiction to consider her Petition;
therefore, the judgment of the chancery court is vacated and the case is dismissed.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Vacated
and Case Dismissed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
Phillip L. Davidson, Nashville, Tennessee, for the appellant, Sandi D. Jackson
Robert E. Cooper, Jr., Attorney General and Reporter, Sara E. Sedgwick, Senior Counsel,
Nashville, Tennessee, for the appellee, Tennessee Board of Nursing
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
On February 5, 2007, the Tennessee Department of Health, Division of Health Related
Boards (the “Department”), filed a “Notice of Charges and Memorandum of Assessment of
Civil Penalties” (“Notice of Charges”) against Sandra D. Jackson (“Nurse Jackson”), who
held both a registered nurse license and an advanced practice nurse license. The Notice of
Charges alleged that Nurse Jackson had “inappropriately prescribed medications for her child
by utilizing information of physicians she was previously affiliated with.” It further stated
that the alleged prescribing physicians either had not treated Nurse Jackson’s child, had no
medical records regarding such child, or had authorized lesser-prescriptions than those filled
by Nurse Jackson. The Notice of Charges alleged the following violations: (1) Tenn. Comp.
R. & Regs. 1000-1-.13(1)(t) “Over-prescribing, or prescribing in a manner inconsistent with
Rules 1000-04-.08 and 1000-04-.09”; (2) Tenn. Comp. R. & Regs. 1000-1-.13(u) “Practicing
professional nursing in a manner inconsistent with T.C.A. § 63-7-103”; (3) Tenn. Comp. R.
& Regs. 1000-1-.13(w) “Engaging in acts of dishonesty which relate to the practice of
nursing”; and (4) Tennessee Nursing Act, Tennessee Code Annotated section 63-7-
115(a)(1)(F) “unprofessional conduct[.]” The Notice of Charges contained notice of a
contested case hearing scheduled for March 7, 2007.
On February 8, 2007, Nurse Jackson filed a “Motion for More Definite Statement.”
Thereafter, the Department filed an “Amended Notice of Charges and Memorandum of
Assessment of Civil Penalties” (“Amended Notice of Charges”),1 on June 15, 2007, which
contained more detailed factual allegations regarding specific prescriptions and the alleged
five prescribers thereof,2 and which set the dates of alleged wrongdoing between 2002 and
2004. The Amended Notice of Charges rescheduled the contested case hearing for
September 5, 2007.
On July 16, 2007, Nurse Jackson filed her “Response to Amended Notice of Charges
and Memorandum of Law of Civil Penalties,” in which she denied that she “acted
inappropriately, dishonestly, unprofessionally or illegally.” She did not, however, challenge
the validity of any of the charged causes of action. On August 3, 2007, Nurse Jackson filed
1
The Amended Notice of Charges contained the same causes of action as the original Notice of
Charges.
2
Specifically, the Amended Notice of Charges stated that the prescriptions requested in the name of
Nurse Jackson’s daughter “were supposedly authorized by Dr. Edward Eastham, Dr. Charles Emerson, Dr.
John Baites, Dr. Michael Hill, and Dr. Robert Lim.”
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a “Motion to Amend Response to Amended Notice of Charges and Memorandum of
Assessment of Civil Penalties,” attempting to name a physician who had allegedly prescribed
a certain medication. However, her amended response again failed to challenge the validity
of any of the charged causes of action or to assert that such were invalid or not in effect at
the time of her alleged inappropriate conduct.
On August 13, 2007, Nurse Jackson filed a “Motion for Charge as to Status of Law
Prior to July 1, 2003.” The motion requested that the administrative law judge (“ALJ”)
charge the Board of Nursing (the “Board”) as to the language of Tennessee Code Annotated
section 63-7-123(b)(3)(A)3 prior to July 1, 2003. A violation of section 63-7-123(b)(3)(A)
was not specifically charged against Nurse Jackson, but such section is referenced in section
63-7-103(2)(D),4 which was charged against her.
Nurse Jackson filed a “Motion to Strike Allegation” on August 15, 2007, claiming that
Rules 1000-4-.08 and 1000-4-.09 did not become effective until 2005. Nurse Jackson,
however, did not challenge the effectiveness of the remaining rule violations charged: Tenn.
Comp. R. & Regs. 1000-1-.13(u) “Practicing professional nursing in a manner inconsistent
with T.C.A. § 63-7-103”; Tenn. Comp. R. & Regs. 1000-1-.13(w) “Engaging in acts of
dishonesty which relate to the practice of nursing[;]” or Tenn. Code Ann. § 63-7-115(a)(1)(F)
“unprofessional conduct[.]”
Also in August 2007, Nurse Jackson filed the affidavits of Charles Whitney Emerson,
III, MD, John E. Baites, MD, and Helen C. Burks, MD, and she notified the Department of
3
At the time of Nurse Jackson’s motion, Tennessee Code Annotated section 63-7-123(b)(3)(A)
provided:
Any prescription written and signed or drug issued by a nurse practitioner under the
supervision and control of a supervising physician shall be deemed to be that of the nurse
practitioner.
Whereas, prior to July 1, 2003, the statute provided:
Any prescription written and signed, and/or drug issued by a nurse practitioner shall be
deemed that of the physician under whose supervision and control the nurse practitioner is
prescribing.
4
Tennessee Code Annotated section 63-7-103(2)(D) provides that “Professional nursing” includes
“(D) Administration of medications and treatments as prescribed by a licensed physician, dentist, podiatrist
or nurse authorized to prescribe pursuant to § 63-7-123.”
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their proposed use during a contested case hearing.5 However, prior to the scheduled
September 5, 2007 hearing, counsel for the Department notified the Board that the
Department would file a Notice of Nonsuit without prejudice in the matter pursuant to
Tennessee Rule of Civil Procedure 41.01. Thus, no contested case hearing was held. The
Department filed its formal “Notice of Nonsuit” on October 9, 2007. Due to a clerical error,
though, a copy of the Notice of Nonsuit rather than of an Order of Dismissal was sent to the
parties from the Administrative Procedures Division on October 10, 2007. However, on
March 19, 2009, the ALJ entered an “Order of Dismissal” nunc pro tunc to October 9, 2007.
On May 7, 2009, Nurse Jackson filed a pro se “Petition for Writ of Certiorari,” 6
(“Petition”) against the Board in the Davidson County Chancery Court. In her Petition,
Nurse Jackson claimed that the Board subjected her to an unwarranted investigation and
prosecution which was “not well grounded in fact and was not warranted by existing law,
rule or regulation[.]”7 Therefore, Nurse Jackson sought to have the matter dismissed with
5
Dr. Helen Burks was not identified in the Amended Notice of Charges, and no affidavits were
provided for Dr. Edward Eastham, Dr. Michael Hill, or Dr. Robert Lim who were identified in the Amended
Notice of Charges as alleged prescribing physicians.
6
Although styled as “Petition for Certiorari,” Nurse Jackson also sought “judicial review” pursuant
to the Uniform Administrative Procedures Act (“UAPA”), Tennessee Code Annotated sections 4-5-322(a)(1),
(b)(1)(A). The Board claims that the chancery court treated the petition as one for judicial review, rather
than for certiorari, and it further claims that the petition failed to satisfy the requirements of a petition for
writ of certiorari.
7
Tennessee Code Annotated section 4-5-325 provides that
(a) When a state agency issues a citation to a person, local governmental entity, board or
commission for the violation of a rule, regulation or statute and such citation results in a
contested case hearing, at the conclusion of such hearing, the hearing officer or
administrative law judge may order such agency to pay to the party issued a citation the
amount of reasonable expenses incurred because of such citation, including a reasonable
attorney’s fee, if such officer or judge finds that the citation was issued:
(1) Even though, to the best of such agency’s knowledge, information and belief formed
after reasonable inquiry, the violation was not well grounded in fact and was not warranted
by existing law, rule or regulation[.]
....
(b) If a final decision in a contested case hearing results in the party issued a citation seeking
judicial review pursuant to § 4-5-322, the judge, at the conclusion of the hearing, may make
the same findings and enter the same order as permitted the hearing officer or administrative
(continued...)
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prejudice as well as “to recoup the $17,135.00 spent in attorney’s fees8 pursuant to T.C.A.
§ 4-5-325(a)(1)-(2) & (b).” Nurse Jackson did not, however, seek a contested case hearing
regarding, or consideration of the merits of, the charges previously nonsuited. Nurse
Jackson amended her Petition (“Amended Petition” or sometimes together with her Petition
for Writ of Certiorari, “Petition”) on April 29, 2010. Thereafter, the Board filed the
administrative record pursuant to Tennessee Code Annotated section 4-5-322(d) on
September 29, 2010.
On February 22, 2011, the Board filed a “Motion to Dismiss” claiming that Nurse
Jackson’s Petition was not an appealable final order under Tennessee Code Annotated
section 4-5-322, and therefore that the chancery court lacked subject matter jurisdiction to
hear the matter. Alternatively, the Board argued that the Petition was barred by res judicata,
collateral estoppel,9 or by Nurse Jackson’s failure to exhaust her administrative remedies.
Ultimately, the chancery court denied the Board’s Motion to Dismiss “not[ing] that
Tenn. Code Ann. § 4-5-325 has not been construed extensively, that there is very little case
law concerning that section, and that the Court wishes to consider everything that the Court
of Appeals has said about it before deciding this case.”10 The court directed the parties to file
briefs prior to oral argument in the case.
Following oral argument11 on August 15, 2011, the chancery court entered a very
thorough “Memorandum and Order,” on January 3, 2012, denying Nurse Jackson’s Petition
in its entirety, and declining to award her any attorney fees. The “Memorandum and Order”
contained the following relevant findings of fact:
7
(...continued)
law judge pursuant to subsection (a).
(emphasis added).
8
Regarding Nurse Jackson’s attorney fees, the technical record before us includes a printout of
payments allegedly made by Nurse Jackson to her former attorney, Culwell E. Ward. Nurse Jackson’s brief
states that the amount of fees is uncontested; the Department, however, disputes this assertion.
9
The motion noted “several prior lawsuits” by Nurse Jackson “against the Tennessee Board of
Nursing members and other state officials and employees” seeking $17,135.00 in attorney fees “all arising
out of charges that Ms. Jackson inappropriately wrote prescriptions for her own daughter.”
10
The chancery court implicitly rejected the Board’s argument that it lacked subject matter
jurisdiction to hear the matter.
11
The record contains no transcript of oral argument.
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Ms. Jackson filed a Response to the Amended Notice of Charges and . . . Ms.
Jackson filed a Motion to Amend her Response to the Amended Notice of
Charges, but in neither filing did she assert that the charged Board rules were
in any way invalid or not in effect at the time of Ms. Jackson’s charge of
inappropriate conduct. . . . Ms. Jackson filed a Motion for Charge as to Status
of Law Prior to July 1, 2003, which did not seek to have the ALJ charge the
Board regarding the status of any of the charged regulatory violations.
. . . Ms. Jackson filed a Motion to Strike a portion of one of the charged
rule subsections, Tenn. Comp. R. & Regs. 1000-1-.13(t), alleging that the rules
referenced in the charged rule violation, (namely, rules 1000-04-.08 and -.09)
did not become effective until 2005, but she did not challenge the remaining
rule subsections with which she had been charged . . . nor did she challenge the
underlying statutory grounds for the charges that were brought against her
under the Nurse Practice Act[.]
. . . . Prior to the contested case hearing, the State’s attorney notified the
Board [and Ms. Jackson] that the State would file a Notice of Nonsuit without
prejudice, pursuant to Tenn. R. Civ. P. 41.01. No contested case hearing was
held.
Ms. Jackson filed this judicial review petition[] seeking $17,135.00 in
attorney’s fees. The record reflects that Ms. Jackson never sought any
attorney’s fees at the agency level, and neither did the ALJ consider any
request for attorney’s fees or make any ruling in that request.
Further, its “Analysis and Decision” section contained the following, in part:
In reaching this decision, the Court carefully reviewed the entire record
below, including the charges in this case along with the physician affidavits.
The Court further reviewed the petitioner’s analysis of the charges and why
she asserts that she was entitled to treat her child and to prescribe medication
for her child. However, the Court cannot judge the doctors’ affidavits or the
reasons for the State having taken a voluntary nonsuit. The doctors’ affidavits
do not answer all the questions concerning the authority of an advanced
practice nurse to prescribe medications for her daughter. The Court notes that
the concern about this minor child was warranted since the petitioner’s child
had numerous prescriptions and, although some of the doctors were aware of
these prescriptions, it was not at all clear that all of the doctors were aware of
these prescriptions. The petitioner worked for several doctors over a period
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of time, and this caused some complexity in reading the prescriptions and the
affidavits. At any rate, this Court cannot tell from the record whether the State
overreached or if the State was wrong in its judgment that it should bring
charges against the petitioner. There are not enough facts in the record to look
at and analyze; therefore, the Court spent most of its time analyzing the law.
In short, the petitioner has failed to carry her burden under Tenn. Code Ann.
§ 4-5-325 of showing that the violations were not well grounded in fact and
were not warranted by existing law, rule or regulation. (The Court notes
further that the petitioner is not saying that the State had an improper purpose
under § 4-5-325(a)(2)). Moreover, the petitioner cannot carry her burden at
the judicial review level in this Court because the petitioner filed this lawsuit
solely to address fees, and for no other reason, since she was not asking this
Court to address the merits of the charges. Therefore, for the reasons
discussed below, the Court dismisses the petitioner’s claims for attorney’s
fees, both at the agency level as well as in the Chancery Court.
In its Memorandum and Order, the chancery court then found that Nurse Jackson, by
failing to request attorney fees below, had failed to provide notice that she would seek such
fees, as it found was required by Tennessee Rule of Civil Procedure 9.01.12 The court further
declined to award Nurse Jackson attorney fees “for the time expended here in judicial review
because it was the petitioner who sought relief in this Court, [and] the State did not seek any
relief nor did it pursue its prior charges against the petitioner at this level.” Finally, the
chancery court declined to remand the case to the ALJ for consideration of attorney’s fees,
noting that the ALJ “would have very little to analyze because the papers filed in preparation
for the hearing were somewhat cryptic and do not answer the concerns about supervision of
a nurse as she prescribes for a family member.” And, the court stated, that Nurse Jackson
“would not be able to carry her burden that there was wrongdoing at the agency level, and
she cannot show from the record that she was pursued wrongfully or illegally.” Nurse
Jackson timely appealed.
12
The chancery court cited Tenn. Comp. R. & Regs. 1360-04-01-.01-3, which provides that
In any situation that arises that is not specifically addressed by these rules, reference may
be made to the Tennessee Rules of Civil procedure for guidance as to the proper procedure
to follow, where appropriate and to whatever extent will best serve the interests of justice
and the speedy and inexpensive determination of the matter at hand.
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II. I SSUES P RESENTED
Nurse Jackson presents the following issue for review:
1. Whether the chancery court erred in holding that Appellant’s petition for certiorari
did not meet the applicable requirements of Tenn. Code Ann. § 4-5-325.13
Additionally, the Board presents the following issues:
1. Whether the chancery court correctly denied Nurse Jackson’s request for attorney fees
under Tenn. Code Ann. § 4-5-325(a)(1) and correctly dismissed her petition for
judicial review;
2. Whether the chancery court properly denied Nurse Jackson’s request for attorney fees
incurred in the chancery court; and
3. Whether the chancery court lacked subject matter jurisdiction to hear this judicial
review matter.
For the following reasons, we find that the chancery court lacked subject matter jurisdiction
to consider Nurse Jackson’s Petition; therefore, the judgment of the chancery court is vacated
and the case is dismissed.
III. S TANDARD OF R EVIEW
“Under the UAPA, administrative agency decisions are subject to chancery court
review that is conducted without a jury and is limited to the administrative record.” City of
Memphis v. Civil Service Comm’n, 238 S.W.3d 238, 242 (Tenn. Ct. App. 2007) (citing
Tenn. Code Ann. § 4–5–322(g) (2005)) (providing, however, that review of procedural errors
is not limited to the administrative record). The scope of judicial review is set forth in
Tennessee Code Annotated section 4-5-322(h):
(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 prejudiced because the administrative findings,
inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
13
As cited above, section 4-5-325 of the UAPA concerns judicial review.
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(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 which is both substantial and material in light
of the entire record.
(B) In determining the substantiality of evidence, the court shall take into
account whatever 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.
Tenn. Code Ann. 4–5–322(h).
IV. D ISCUSSION
As a threshold issue, we must first address the Board’s argument that the chancery
court lacked subject matter jurisdiction to hear Nurse Jackson’s petition for judicial review.14
The issue of subject matter jurisdiction may be raised at any time in any court. Freeman v.
CSX Transp., Inc., 359 S.W.3d 171, 176 (Tenn. Ct. App. 2010) (citations omitted).
As discussed above, in its Motion to Dismiss, the Board argued that the chancery court
lacked subject matter jurisdiction to hear Nurse Jackson’s Petition because the ALJ’s Order
of Voluntary Dismissal pursuant to Tennessee Rule of Civil Procedure 41.01 was not an
appealable final order within the meaning of Tennessee Code Annotated sections 4-5-314(c)
or 4-5-322(a)(1). On appeal, the Board reasserts its lack-of-jurisdiction argument.
14
Although Nurse Jackson attempted to petition both for a writ of certiorari and for judicial review,
the chancery court properly treated the petition as one for judicial review. In any event, both Nurse Jackson’s
Petition and her Amended Petition failed to satisfy the requirements set forth in Tennessee Code Annotated
section 27-8-106 “that a petition for a writ of certiorari be ‘sworn to’ and state that ‘it is the first application
for the writ.’” Nebel v. Bd. of Prof’l Responsibility, No. M2010-00420-SC-R3-BP, 2011 WL 197868, at *1
(Tenn. Jan. 21, 2011) (quoting Tenn. Code Ann. § 27-8-106 (2000)). As stated by our Supreme Court,
“failure to satisfy these requirements deprives trial courts of jurisdiction to review a hearing panel’s
decision.” Id. (citing Bd. of Prof’l Responsibility v. Cawood, 330 S.W.3d 608, 609 (Tenn. 2010)). Insofar
as Nurse Jackson could have sought a writ of certiorari, she failed to comply with the statutory requirements,
depriving the chancery court of jurisdiction.
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Specifically, it contends that jurisdiction is lacking because the Board did not decide the
contested case after a hearing and because the Order of Voluntary Dismissal did not “include
conclusions of law, the policy reasons therefor, and findings of fact for all aspects of the
order” as required by the UAPA, Tenn. Code Ann. § 4-5-314(c).
We agree that the chancery court was without jurisdiction to consider Nurse Jackson’s
Petition for judicial review. As previously stated by the middle section of this Court, the
UAPA “is inapplicable to proceedings that do not fit within its adjudicatory definitions.”
Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480-81 (Tenn. Ct. App. Oct. 15, 1999)
(citing National Health Corp. v. Snodgrass, 555 S.W.2d 403, 405-06 (Tenn. 1997); Mid-
South Indoor Horse Racing, Inc. v. Tenn. State Racing Comm’n, 798 S.W.2d 531, 536 (Tenn.
Ct. App. 1990)). “Judicial review under the Act is limited to final decisions in contested
cases.”15 Id. at 481 (citing Tenn. Code Ann. § 4-5-322(a)(1) (1998); Ben. H. Cantrell,
Judicial Review Under the Tennessee Uniform Administrative Procedures Act–An Update,
13 Mem. St. U.L.Rev. 589, 595 (1983)). “Thus, judicial review under Tenn. Code Ann. §
4-5-322 is not available if the proceeding to be reviewed is not a contested case.” Id. (citing
Mid-South Indoor Horse Racing, Inc., 798 S.W.2d at 536).
Tennessee Code Annotated section 4-5-102(3) defines a “[c]ontested case” as “a
proceeding, including a declaratory proceeding, in which the legal rights, duties or privileges
of a party are required by any statute or constitutional provision to be determined by any
agency after an opportunity for a hearing.” Regarding Nurse Jackson’s right to a hearing, the
Rules of the Tennessee Department of State provide in part:
(1) Commencement of Action. A contested case proceeding may be
commenced by original agency or public action, by appeal of a person from an
agency action, by request for hearing by an affected person, or by any other
lawful procedure.
(2) Notice of hearing. In every contested case, a notice of hearing shall be
issued by the agency, which notice shall comply with T.C.A. § 4-5-307(b).
Tenn. Comp. R. & Regs. 1360-04-01-.05.16
The Board concedes that the filing of the Notice of Charges against Nurse Jackson
15
Although not applicable here, Tennessee Code Annotated section 4-5-322(a)(1) provides that “A
preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the
final agency decision would not provide an adequate remedy.”
16
This Rule is cited by Board of Nursing Rule 1000-3. Tenn. Comp. R. & Regs. 1000-3.
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commenced a contested case proceeding. However, when the Board non-suited the case
against Nurse Jackson prior to any type of hearing in the matter–ultimately resulting in the
entry of an Order of Voluntary Dismissal–this was no longer a “proceeding . . . in which [her]
legal rights, duties or privileges [were] required . . . to be determined . . . after an opportunity
for a hearing.” See Tenn. Code Ann. § 4-5-102(3). Thus, we conclude that this was not a
“contested case.” Judicial review is, therefore, unavailable to Nurse Jackson pursuant to
Tennessee Code Annotated section 4-5-322, and the chancery court was without jurisdiction
to consider her petition for such.17 See Tenn. Envir. Council v. Water Quality Control Bd.,
250 S.W.3d 44, 57-58 (Tenn. Ct. App. 2007) (finding the trial court lacked subject matter
jurisdiction over an issue not raised in the disputed case proceedings). Accordingly, the
judgment of the chancery court is vacated and the case is dismissed. See Pickard v. Tenn.
Dept. of Envir. and Conserv., No. M2011-01172-COA-R3-CV, 2012 WL 3329618, at *6
(Tenn. Ct. App. Aug. 14, 2012) (“[W]hen an appellate court determines that a trial court
lacked subject matter jurisdiction, it must vacate the judgment and dismiss the case without
reaching the merits of the appeal.”) (citations omitted). All remaining issues are
pretermitted.
V. C ONCLUSION
For the aforementioned reasons, the judgment of the chancery court is vacated and the
case is dismissed. Costs of this appeal are taxed to Appellant, Sandi D. Jackson, and her
surety, for which execution may issue if necessary.
______
___________________________
ALAN E. HIGHERS, P.J., W.S.
17
Moreover, as cited above, Tennessee Code Annotated section 4-5-325 provides for the recovery
of attorney fees “at the conclusion of [a contested case] hearing.”
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