Chimneyhill Condominium Association v. King Chow

07/20/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 11, 2021 Session

CHIMNEYHILL CONDOMINIUM ASSOCIATION v. KING CHOW

Appeal from the Circuit Court for Shelby County
No. CT-004471-16 Rhynette N. Hurd, Judge
___________________________________

No. W2020-00873-COA-R3-CV
___________________________________

The defendant appealed to circuit court following a judgment against it in general sessions
court. The plaintiff filed no notice of appeal, but amended its complaint to allege an
additional claim. The plaintiff later filed a motion for partial summary judgment seeking
an award of attorney’s fees. Eventually, the defendant dismissed its appeal and asked that
the general sessions court judgment be affirmed. The trial court affirmed the previous
judgment from the general sessions court, but also granted the plaintiff an additional
judgment for attorney’s fees and discretionary costs. The defendant appeals the award of
attorney’s fees and discretionary costs. We reverse the trial court’s decision to award the
plaintiff attorney’s fees, but affirm the award of discretionary costs.

Tenn. R. App. P. 3 Appeal as of Right: Judgment of the Circuit Court Reversed in
Part; Affirmed in Part; and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R.
FRIERSON II, and CARMA DENNIS MCGEE, JJ., joined.

Mark J. Grai, Memphis, Tennessee, for the appellant, King Chow.

R. Christopher Coleman, Bartlett, Tennessee, and Thomas F. Bloom, Nashville, Tennessee,
for the appellee, Chimneyhill Condominium Association.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

On May 12, 2016, Plaintiff/Appellee Chimneyhill Condominium Association
(“Chimneyhill” or “the Association”) filed an action against Defendant/Appellant King
Chow in general sessions court for delinquent home owner’s association dues, late charges,
attorney’s fees, and assessments. On June 15, 2016, Mr. Chow filed a counterclaim seeking
a set-off and reimbursement for repairs. Eventually, on October 19, 2016, the general
sessions court denied Mr. Chow’s counterclaim and awarded Chimneyhill a judgment of
$10,218.25. On October 28, 2016, Mr. Chow filed a notice of appeal to the Shelby County
Circuit Court (“the trial court”). Chimneyhill filed no notice of appeal.

On December 16, 2016, Mr. Chow filed an amended counterclaim in the trial court,
again alleging entitlement to a set-off and repair reimbursement.1 On January 18, 2017,
Chimneyhill answered the counter-complaint, denying that Mr. Chow was entitled to relief.

On the same day, Chimneyhill filed an amended complaint.2 Therein, Chimneyhill
reiterated its claim that Mr. Chow failed to pay required assessments. Chimneyhill further
asserted that Mr. Chow was unjustly enriched when he enjoyed the products and services
provided by Chimneyhill without paying these assessments. Chimneyhill also raised for
the first time that around September 1, 2015 Mr. Chow had made improper repairs to his
unit in violation of the parties’ contract, referred to as the Master Deed.3 According to
Chimneyhill, they first informed Mr. Chow that his decision to reroof his property was
unauthorized and asked him to correct the issue by letter dated September 15, 2015. The
amended complaint also requested an award of attorney’s fees pursuant to the Master
Deed;4 Chimneyhill specifically requested damages, attorney’s fees incurred in both the
trial court and the general sessions court, and that Mr. Chow’s property be foreclosed to
pay its lien. Discovery thereafter ensued.

Chimneyhill filed a motion for summary judgment in February 2019, which the trial
court denied in May 2019 because there were disputed material facts. Both parties
thereafter filed motions in limine. According to a June 4, 2019 order, trial began on May
30, 2019, but “could not be concluded” and was reset for July 25, 2019.

On July 1, 2019, Chimneyhill filed a motion for partial summary judgment seeking
an award of attorney’s fees, citing Parker v. Brunswick Forest Homeowners Ass’n, Inc.,
No. W2018-01760-COA-R3-CV, 2019 WL 2482351 (Tenn. Ct. App. June 13,
2019), perm. app. denied (Tenn. Sept. 18, 2019). Chimneyhill argued therein that it was
entitled to its full attorney’s fees regardless of whether “said fees relate to the prosecution
of its claim for unpaid assessments or defending against [Mr.] Chow’s counterclaims.” In
support, Chimneyhill filed the affidavit of its counsel, asserting that he “billed and was
paid” $28,618.00 in attorney’s fees in both the general sessions court and trial court

1
Mr. Chow obtained leave to file this amended counterclaim from the trial court.
2
Chimneyhill was also granted leave to file the amended complaint from the trial court.
3
The repairs involved the replacement of the roof on Mr. Chow’s property.
4
The Master Deed’s attorney’s fees provision provides as follows: “In any proceeding arising
because of an alleged default by a unit owner, the Association bringing the suit shall be entitled to recover
the cost of the proceeding and such reasonable attorney’s fees as may be determined by the Court.”
-2-
proceedings from May 2015 to May 2019. He further asserted that Chimneyhill continued
to incur attorney’s fees after that date, which had not yet been invoiced.

Both the hearing on the motion for partial summary judgment and the trial were
reset multiple times. At the final hearing on the motion for partial summary judgment on
January 15, 2020, Mr. Chow’s attorney announced that he intended to file a notice of
dismissal of the appeal and presented the trial court with a notice during the hearing. The
trial court heard the parties’ arguments on the motion for partial summary judgment and
requested additional briefing as to the effect of the dismissal and whether Mr. Chow’s delay
in entering it had any effect on its validity.5 Mr. Chow filed a formal notice of dismissal of
the appeal on January 15, 2020, asking the trial court to affirm the general sessions court
judgment.

Each party filed supplemental briefs to the trial court on January 29, 2020. In
Chimneyhill’s brief, it argued that it was entitled to both attorney’s fees and discretionary
costs notwithstanding the dismissal of Mr. Chow’s appeal. Moreover, Chimneyhill asserted
that the Master Deed’s attorney fee provision did not require that it be the prevailing party
in any litigation thereunder in order to recover fees, and the that the language of the Master
Deed should be enforced as written. Chimneyhill also included an affidavit of its property
manager/bookkeeper showing that it had incurred a total of $34,618.00 in attorney’s fees
from May 23, 2015 to January 7, 2020, which included work done both in the general
sessions court and the trial court. Excluding the general sessions court work reduced the
fees incurred to $31,377.00. Additionally, the bookkeeper stated that Chimneyhill incurred
$3,738.00 in discretionary costs, which included court reporter fees, subpoenas, and the
bookkeeper’s own time in dealing with the litigation.

Mr. Chow’s memorandum argued, however, that Chimneyhill could not be awarded
any amounts beyond the original general sessions court judgment, including the attorney’s
fees that Chimneyhill sought in its motion for partial summary judgment, because Mr.
Chow dismissed his appeal. Moreover, Mr. Chow noted that Parker did not support
Chimneyhill’s claim to attorney’s fees because, at the time the motion for partial summary
judgment was filed, there was still a dispute as to which party materially breached the
Master Deed, and thus there was no prevailing party.

An additional hearing occurred on February 5, 2020. On February 10, 2020, the trial
court entered a written order accomplishing three tasks. First, the trial court ruled that
Chimneyhill’s motion for partial summary judgment as to attorney’s fees was “well
taken.”6 The trial court therefore awarded Chimneyhill $35,105.28, representing
5
Importantly, Chimneyhill does not assert in this appeal that Mr. Chow’s purported delay in filing
the notice of dismissal has any effect on the analysis in this case. As such, we will not discuss this issue
further.
6
The trial court’s order provided no additional legal reasoning other than “good cause” was shown.
See Tenn. R. Civ. P. 56.04 (“The trial court shall state the legal grounds upon which the court denies or
-3-
$31,377.00 in attorney’s fees incurred through January 7, 2020, and $3,738.28 in
discretionary costs. In what the trial court characterized as an action “[f]ollowing” the grant
of partial summary judgment to Chimneyhill, the trial court “entered” Mr. Chow’s notice
of dismissal. Finally, the trial court remanded the matter back to the general sessions court
for reinstatement of the judgment entered therein. Costs were taxed to Mr. Chow.

Mr. Chow thereafter filed a motion to alter or amend, arguing that the trial court
mischaracterized its notice as a nonsuit rather than a dismissal of an appeal, and further
mischaracterized the timing of the dismissal as occurring after the grant of partial summary
judgment to Chimneyhill. The trial court eventually entered a final amended order on May
29, 2020, clarifying its prior order. Therein, the trial court explained the sequence of events
that occurred with regard to the notice of dismissal and stated that Chimneyhill’s motion
for partial summary judgment was granted based on the Master Deed and “pertinent case
law.” The total amount of attorney’s fees and discretionary costs increased in the amended
order to $40,268.28: $36,540.00 in attorney’s fees and $3,728.28 in discretionary costs.
Again, the trial court noted that “[f]ollowing” the grant of Chimneyhill’s motion for partial
summary judgment, the trial court

then immediately thereupon dismisses the appeal of [Mr.] Chow based on
[his] Notice of Dismissal of Appeal filed pursuant to the applicable 2016
version of [Tennessee Code Annotated section 27-8-105] and this matter is
remanded to General Session[s] with instructions to reinstate the judgment
of Ten Thousand Two Hundred Eighteen Dollars ($10,218.00)[7] previously
entered for Chimneyhill against [Mr.] Chow.

The trial court finally declared its order final and appealable under Rule 54.02 of the
Tennessee Rules of Civil Procedure (discussed in detail, infra). Mr. Chow thereafter timely
appealed to this Court. On August 24, 2020, the trial court entered an order staying
execution on the judgment pending appeal secured by a $65,000.00 bond.

II. ISSUES PRESENTED

Mr. Chow raises the following issues in this appeal, which are taken from his
appellate brief:

1. Whether the trial court erred in not immediately dismissing this case and
affirming the judgment of the general sessions court at such time when
Mr. Chow entered a notice of dismissal in the trial court.

grants the motion, which shall be included in the order reflecting the court’s ruling.”).
7
The trial court’s amended order awards Chimneyhill only $10,218.00, while the general sessions
court’s judgment was for $10,218.25. This appears to be a typographical error.
-4-
 2. Assuming that the trial court had the discretion not to immediately
dismiss the case and affirm the judgment of the general sessions court
when Mr. Chow entered a notice of dismissal, whether the trial court erred
in ordering payment of attorney’s fees to the opposing party based on the
existing case.
3. Whether the trial court erred in awarding discretionary costs when the
movant never moved for the same nor provided any documentation in the
record of what such discretionary costs consisted of.

In the posture of appellee, Chimneyhill essentially rephrases Mr. Chow’s issues and adds
an additional request for an award of its attorney’s fees incurred in defending this appeal.

III. ANALYSIS

A.
Before proceeding to discuss the arguments presented by the parties, we must first
consider a threshold issue: this Court’s subject matter jurisdiction. Rule 13 of the
Tennessee Rules of Appellate Procedure provides that our “review generally extends only
to those issues presented for review. [We] shall also consider whether the trial and appellate
court have jurisdiction over the subject matter, whether or not presented for
review.” See Tenn. R. App. P. 13(b). “A court may raise the issue of subject-matter
jurisdiction sua sponte, even where no party objects.” Wilken v. Wilken, No. W2012-
00989-COA-R3-CV, 2012 WL 6727197, *11 (Tenn. Ct. App. Dec. 27, 2012) (citing Ruff
v. State, 978 S.W.2d 95, 98 (Tenn. 1998)). “The lack of subject matter jurisdiction is so
fundamental that it requires dismissal whenever it is raised and demonstrated.” Dishmon
v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999) (citing Tenn. R.
Civ. P. 12.08).

Under Rule 3 of the Tennessee Rules of Appellate Procedure, only final judgments
entered by the trial court are appealable as of right. A trial court order “that adjudicates
fewer than all the claims or rights and liabilities of fewer than all the parties is not
enforceable or appealable[.]” Tenn. R. App. P. 3(a). Rule 3 provides an exception,
however, when a trial court certifies its judgment as final under Rule 54.02 of the
Tennessee Rules of Civil Procedure. Id. Rule 54.02 provides:

Multiple Claims for Relief. When more than one claim for relief is present
in an action, whether as a claim, counterclaim, cross-claim, or third party
claim, or when multiple parties are involved, the court, whether at law or in
equity, may direct the entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express determination that there
is no just reason for delay and upon an express direction for the entry of
judgment. In the absence of such determination and direction, any order or
-5-
 other form of decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the entry of the
judgment adjudicating all the claims and the rights and liabilities of all the
parties.

Rule 54.02 “is an exception to Rule 3 that permits the trial court, without permission
from the appellate court, to certify an order as final and appealable, even if parts of the
overall litigation remain pending in the trial court.” Johnson v. Nunis, 383 S.W.3d 122,
130 (Tenn. Ct. App. 2012). “However, ‘the trial court’s authority to direct the entry of a
final judgment is not absolute.’” E Sols. for Buildings, LLC v. Knestrick Contractor, Inc.,
No. M2017-00732-COA-R3-CV, 2018 WL 1831116, at *3 (Tenn. Ct. App. Apr. 17, 2018)
(quoting Brentwood Chase Cmty. Ass’n v. Truong, No. M2014-01294-COA-R3-CV,
2014 WL 5502393, at *2 (Tenn. Ct. App. Oct. 30, 2014)). As we have previously
explained:

An order can only be certified as final in limited circumstances.
Because Rule 54.02 provides that a trial court may “direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties,” the
order certified as final must be dispositive of an entire claim or a party. In
other words, the order at issue must dispose of at least one entire claim or
resolve all of the claims against at least one party. The purpose of the
certification rule is to enhance judicial economy and to prevent piecemeal
appeals in cases which should be reviewed only as single units.

Id. (citations and some quotation marks omitted).

Whether the trial court’s order “disposes of a distinct and separable ‘claim’ that is
subject to Rule 54.02 certification is a question of law reviewed de novo.” Id. (citing
Ingram v. Wasson, 379 S.W.3d 227, 238 (Tenn. Ct. App. 2011)). If the trial court certifies
its order as final, but the order does not adjudicate an entire claim or party, the appeal will
be dismissed. “Without a final adjudication of at least one claim, Rule 54.02 is simply
inapplicable.” E Sols. for Buildings, 2018 WL 1831116, at *3 (citing King v. Kelly, No.
M2015-02376-COA-R3-CV, 2016 WL 3632761, at *4 (Tenn. Ct. App. June 28, 2016)).
The question of whether an entire claim has been conclusively adjudicated is “not always
easy” to resolve. Ingram, 379 S.W.3d at 238.

Here, the order appealed purported to resolve at most two of the outstanding issues
in the case: (1) Mr. Chow’s appeal, which resulted in the reinstatement of the general
sessions court judgment in favor of Chimneyhill’s claim for delinquent home owner’s
association dues, late charges, and assessments; and (2) Chimneyhill’s motion for partial
summary judgment as to attorney’s fees incurred in both the general sessions court and the
-6-
trial court. Chimneyhill contends, however, that an additional claim was raised in its
amended complaint in the trial court that was not adjudicated by the dismissal of Mr.
Chow’s appeal: its claim for damages that resulted from Mr. Chow’s performance of
allegedly unauthorized repairs on his property. Nothing in the record indicates that
Chimneyhill has abandoned this claim. Thus, no final judgment was entered by the trial
court. Instead, the trial court certified its May 29, 2020 order as final pursuant to Rule
54.02. The question, however, is whether such certification was proper.

This Court has held that a “claim” for purposes of Rule 54.02 involves “‘only one
legal right, even if seeking multiple remedies for the alleged violation of that right[.]’”
Christus Gardens, Inc. v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No.
M2007-01104-COA-R3-CV, 2008 WL 3833613, at *4 (Tenn. Ct. App. Aug. 15, 2008)
(quoting Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S. Ct. 1202, 47 L.Ed.2d
435 (1976)). In other words, a claim “denotes ‘the aggregate of operative facts which give
rise to a right enforceable in the courts[.]’” Id. (quoting McIntyre v. First Nat’l Bank of
Cincinnati, 585 F.2d 190, 191 (6th Cir. 1978)).

We have previously considered whether a request for attorney’s fees was distinct
from the claims that it was based on in E. Solutions for Buildings. In that case, the trial
court resolved the parties’ breach of contract claims, but did not fully adjudicate the parties’
attorney’s fees request based on the contract, directing the parties to resubmit those claims
once the appeal was resolved. 2018 WL 1831116, at *4. The trial court then certified its
ruling as final under rule 54.02. But we held that this “order was improvidently certified as
final.” Id.

As we explained:

Rule 54.02 “does not allow a trial court to certify an order[ ] that disposes of
only some, but not all, elements of damages, as final and
appealable.” Cooper v. Powers, No. E2011-01065-COA-R9-CV, 2011 WL
5925062, at *6 (Tenn. Ct. App. Nov. 29, 2011). “Notably absent from Rule
54.02 is any mention of allowing the certification as final of an order which
disposes of certain elements of a claim for damages but leaves the claim
pending as to other elements.” Id. See, e.g., Johnson v. Tanner-Peck,
L.L.C., No. W2009-02454-COA-R3-CV, 2011 WL 1330777, at *6 n.8
(Tenn. Ct. App. Apr. 8, 2011) (explaining that an order was not appropriate
for certification as final under Rule 54.02 because it did not dispose of a
request for treble damages, punitive damages, attorney’s fees and the like
arising out of the same claim); Cates [v. White], [No. 03A01-9104-CH-
00130, 1991 WL 168620, at *4 (Tenn. Ct. App. Sept. 4, 1991)] (“Bifurcation
of damages is fatal to a 54.02 certification. . . . While it is proper for the trial
court to bifurcate the eviden[t]iary hearings on these damages, it cannot
bifurcate the appeal of it.”). An award as to only one facet of the total
-7-
 damages is not properly certifiable. Cates, 1991 WL 168620, at *4.

E Solutions for Buildings, 2018 WL 1831116, at *4 (citing Toyos v. Hammock, No.
W2011-01649-COA-R3-JV, 2013 WL 177417, at *16–17 (Tenn. Ct. App. Jan. 17, 2013))
(noting that in prior proceedings a judgment had been dismissed for lack of final judgment
when it was improvidently certified as final because it failed to adjudicate a request for
attorney’s fees).

Although the opposite situation is presented here, the outcome is the same. Here,
Chimneyhill’s claims for attorney’s fees was merely “one facet” of the damages allowed
for their underlying claims. Chimneyhill makes the somewhat novel argument in this
appeal that it was entitled to partial summary judgment on the issue of attorney’s fees at
the time it filed its motion because the Master Deed did not require it to prevail on its
claims, but only to have brought them. Setting aside that issue, the Master Deed requires,
at a minimum, that the attorney’s fees be awarded in a proceeding based on an “alleged
default.” Thus, any request for attorney’s was predicated on an allegation of default. One
allegation of default, however, remains unadjudicated: Chimneyhill’s allegation that Mr.
Chow breached the Master Deed by making unapproved repairs to his property.

Thus, regardless of whether this claim has to be adjudicated before a claim for
attorney’s fees could be decided, there is no dispute that they are interdependent and not
distinct. Moreover, Chimneyhill’s motion for partial summary judgment and supporting
affidavit made no distinction between the attorney’s fees incurred with regard to its claim
about unpaid assessments that was adjudicated by the dismissal of Mr. Chow’s appeal and
the claim that is yet to be resolved. The request for attorney’s fees adjudicated by the trial
court therefore cannot be said to be “a distinctly separate claim” from the issues remaining
in the case. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 48 (Tenn. 2012)
(discussing Rule 54.02). As such, it appears that the trial court attempted to certify as final
a judgment that included only one “facet” of an as yet not fully adjudicated claim. This was
not proper. As such, we lack subject matter jurisdiction to adjudicate this appeal.

Although not argued by the parties in this cause, we note that we are authorized to
suspend many of the Tennessee Rules of Appellate Procedure for “good cause.” See Tenn.
R. App. P. 2 (“For good cause, including the interest of expediting decision upon any
matter, the Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend
the requirements or provisions of any of these rules in a particular case on motion of a party
or on its motion and may order proceedings in accordance with its discretion, except [some
rules not applicable here.]”). It is well-settled that this rule may be utilized to suspend the
finality requirement of Rule 3. See White v. Johnson, 522 S.W.3d 417, 421 n.1 (Tenn. Ct.
App. 2016) (citing Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (“[W]e
find no bar to the suspension of Rule 3(a).”)). To utilize this rule, however, “there must be
a good reason for suspension and the record should affirmatively show that the rule has
been suspended.” Bayberry, 783 S.W.2d at 559.
-8-
 In a previous case in which one party asked us to invoke our discretion under Rule
2 to entertain an appeal of a nonfinal judgment, we considered a multitude of previous
cases in which we have held that exercise of our discretion was justified:

We have previously found good cause to suspend the final judgment
requirement, inter alia, where the judgment appealed adjudicated all of the
rights of a party and a delay would prejudice the party’s rights, see White v.
Johnson, 522 S.W.3d 417, 421 n.1 (Tenn. Ct. App. 2016); where the trial
court’s reasoning applied equally to both the adjudicated and non-
adjudicated claims, see Utley v. Tennessee Dep’t of Correction, 118 S.W.3d
705, 711 n.9 (Tenn. Ct. App. 2003); where a case has been ongoing for over
ten “tortured” years and is on its third appeal, see Ruff v. Raleigh Assembly
of God Church, Inc., No. W2001-02578-COA-R3-CV, 2003 WL 21729442,
at *5 (Tenn. Ct. App. July 14, 2003); and where the judgment did not
adjudicate claims against certain defendants but the pleadings contained “no
competent allegations regarding the defendants in any of the
pleadings.” See Ravenwood Homeowners Ass’n v. Bailey, No. C.A. 758,
1988 WL 87676, at *2 (Tenn. Ct. App. Aug. 26, 1988). See also,
e.g., Hopwood v. Hopwood, No. M2016-01752-COA-R3-CV, 2017 WL
2964886, at *3 n.4 (Tenn. Ct. App. July 12, 2017) (suspending the finality
requirements because of the “the grave nature of proceedings seeking to
incarcerate litigants,” despite the fact that the trial court did not rule on a
request for attorney’s fees); In Re Estate of Goza, No. W2013-00678-COA-
R3-CV, 2014 WL 7235166, at *3–4 (Tenn. Ct. App. Dec. 19,
2014) (suspending the finality requirement after consideration of “the
immense amount of resources already expended in this litigation” in which
the parties had “already attempted to litigate the same issue in three different
courts”); In Re Estate of James, No. E2012-01021-COA-R3-CV, 2013 WL
593802, *7 (Tenn. Ct. App. Feb. 14, 2013) (suspending the finality
requirement where the only issue left unadjudicated was “the issue of
approving any additional fees and expenses that were incidental to the
hearing or that were necessary to close the estate”); Simerly v. City of
Elizabethton, No. E2009-01694-COA-R3-CV, 2011 WL 51737, at *8
(Tenn. Ct. App. Jan. 5, 2011) (suspending the finality requirement where the
trial court’s order effectively adjudicated “all of the substantive claims and
rights between the parties, and all of the legal theories of recovery”); Parker
v. Lambert, 206 S.W.3d 1, 3–4 (Tenn. Ct. App. 2006) (suspending the
finality requirement where the only issues left unadjudicated were the
calculation of the amount of one party’s attorney’s fees and the “possibility”
that the trial court would have to supervise the sale of property if the parties
could not agree on a sales price or realtor); Rector v. Halliburton, No.
M1999-02802-COA-R3-CV, 2003 WL 535924, at *3 (Tenn. Ct. App. Feb.
-9-
 26, 2003) (holding that judicial economy supported suspending the finality
requirements where the trial court failed to rule on a request for punitive
damages, but the court was able to consider the rest of the case on the merits
and no prejudice would result to either party).

Levitt, Hamilton, & Rothstein, LLC v. Asfour, 587 S.W.3d 1, 10–11 (Tenn. Ct. App.
2019). In Levitt, we ultimately held that good cause did not exist to suspend the finality
requirement in order to allow a party to appeal from the trial court’s decision to grant a
Rule 60.02 motion and order a new trial. Id. at 11.

Based on the foregoing, we conclude that good cause exists in this case. Here, the
central dispute involves the trial court’s authority to enter the judgment for attorney’s fees
notwithstanding the fact that Chimneyhill did not appeal the general sessions judgment and
Mr. Chow chose to dismiss his appeal prior to the award of attorney’s fees. This issue is
controlled by Tennessee Supreme Court precedent directly on point. See Crowley v.
Thomas, 343 S.W.3d 32 (Tenn. 2011). Although the trial court chose only to resolve the
issues of attorney’s fees, our resolution of this issue will apply equally to both the attorney’s
fees request and the underlying claim related to unapproved repairs. See Simerly, 2011 WL
51737, at *8. In other words, if Mr. Chow is correct in his interpretation and application of
Crowley, both Chimneyhill’s claim for compensation related to unapproved repairs and
additional compensation for attorney’s fees would be improper. Such a holding would
therefore obviate the need for any future appeals as to the substantive matter of whether
the trial court properly awarded attorney’s fees in this case under the language of the Master
Deed or whether the amount of fees awarded was proper.8 And both the parties and the trial
court in this case clearly desire that this issue be adjudicated regardless of the remaining
issues, unlike the situation wherein a party seeks an extraordinary appeal following the
denial of an interlocutory appeal by the trial court.

In addition, the statute that is at the center of this dispute has recently been amended

8
We note that the reasoning employed by the trial court in granting the motion for partial summary
judgment is scant. Under Rule 56.04 of the Tennessee Rules of Civil Procedure, trial courts are required to
state the legal grounds upon which they grant motions for summary judgment. This means that a trial court’s
order must be “adequately explained[.]” See generally Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303,
314 (Tenn. 2014). The Master Deed also provides only for an award of “reasonable” attorney’s fees. The
Tennessee Supreme Court has set forth a number of factors to be used in determining a reasonable fee. See
Tenn. Sup. Ct. R. 8, RPC 1.5(a). “To enable appellate review, trial courts should clearly and thoroughly
explain the particular circumstances and factors supporting their determination of a reasonable fee in a
given case.” Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 185–86 (Tenn. 2011). The trial court’s order
appears to neglect this requirement. A trial court’s failure to meet either of the above requirements often
results in the judgment being vacated and remanded for the entry of a more detailed order. Deciding the
issue of the trial court’s power to award additional compensation prevents the parties from incurring
unnecessary expenses correcting or briefing these issues in the future.

- 10 -
to completely alter the landscape on this issue. See generally Tenn. Code Ann. § 27-5-108
(discussed in detail, infra). As such, it is unlikely that this issue will be presented again in
the future. In sum, there appears to be no need to delay resolution of this case pending a
final judgment. As such, we will exercise our discretion to consider this appeal
notwithstanding the fact that the judgment was improvidently certified as final under Rule
54.02.

B.

In this case, the trial court granted Chimneyhill’s motion for partial summary
judgment to award attorney’s fees related to alleged breaches of the Master Deed. The trial
court’s decision to grant or deny a motion for summary judgment is reviewed de novo with
no presumption of correctness. Bowers v. Estate of Mounger, 542 S.W.3d 470, 477 (Tenn.
Ct. App. 2017). Summary judgment is appropriate when there are no genuine disputes of
material fact and the moving party is entitled to judgment as a matter of law. Tenn. R. Civ.
P. 56.04.

Mr. Chow contends, however, that the trial court erred in granting Chimneyhill’s
motion because it lacked subject matter jurisdiction. “Subject matter jurisdiction provides
the court with the authority to act.” In re Marquise T.G., No. M2011-00809-COA-R3-JV,
2012 WL 1825766, at *4 (Tenn. Ct. App. May 18, 2012) (internal citations omitted).
“Challenges to a court’s subject matter jurisdiction call into question the court’s lawful
authority to adjudicate a controversy brought before it, and, therefore, should be viewed as
a threshold inquiry.” Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d
436, 445 (Tenn. 2012) (internal citations and quotation marks omitted). “Whether a court
has subject matter jurisdiction is a question of law for which this court conducts a de novo
review, with no presumption of correctness.” Id. “Where subject matter jurisdiction is
challenged, the party asserting that subject matter jurisdiction exists . . . has the burden of
proof.” Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013) (citing Chapman v.
DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012)).

In particular, Mr. Chow argues that because he was the only party to file a notice of
appeal, when he chose to voluntarily dismiss his appeal, the trial court had no discretion to
do anything other than affirm the judgment of the general sessions court. In support, Mr.
Chow cites Tennessee Code Annotated sections 27-5-101 through -108 and Crowley v.
Thomas, 343 S.W.3d 32 (Tenn. 2011). Chimneyhill of course argues that these authorities
do not prohibit the trial court’s action in this case.

We begin with the relevant statutes. First, section 27-5-101 provides that “Any
person dissatisfied with the judgment of a recorder or other officer of a municipality
charged with the conduct of trials, in a civil action, may, within ten (10) entire days
thereafter, Sundays exclusive, appeal to the next term of circuit court.” Section 27-5-107
further provides that “if the appeal is dismissed for any cause, the appellee is entitled to an
- 11 -
affirmance of the judgment below, with costs.” At the time that Mr. Chow filed his notice
of appeal in the trial court, section 27-5-108 provided as follows:

(a)(1) Any party may appeal from a decision of the general sessions court to
the circuit court of the county within a period of ten (10) days on complying
with this chapter.
(2) If there are multiple parties in a case before the general sessions court in
which comparative fault is an issue at trial, and if one (1) or more of the
parties, but not all, perfects an appeal of a decision of the sessions court to
the circuit court, as provided in this section, then the appealing party shall
serve written notice to all other parties that an appeal has been taken. Such
written notice shall be sent to the last known address of each such party or to
the party’s legal counsel. The other parties shall have ten (10) days from
receipt of such notice to perfect an appeal.

* * *

(c) Any appeal shall be heard de novo in the circuit court.
(d) If no appeal is taken within the time provided, then execution may issue.

Importantly, section 27-5-108 was amended in 2018 to provide that only one party
need file a notice of appeal to bring the entire case up for a trial de novo in the circuit court.
Specifically, section 27-5-108(a)(2) now provides that “[i]n civil cases, if one (1) or more
of the parties before the general sessions court, on one (1) or more warrants, perfects an
appeal of a decision of the general sessions court to the circuit court, as provided in this
section, then cross appeals and separate appeals are not required, and upon the filing of a
notice of appeal by any party, issues may be brought up for review by any party.” This
amendment, however, expressly applies only “to appeals filed on or after the effective date
of this act.” 2018 Tenn. Laws Pub. Ch. 858 (H.B. 2202) (effective May 3, 2018). Because
Mr. Chow filed his appeal in 2016, well before the May 3, 2018 effective date of the
amendment, we apply the prior version of the statute to this appeal.

Courts considering the statutory scheme governing appeals from general sessions
courts under the prior version of section 27-5-108 have generally held that it required that
any party dissatisfied with the judgment of the general sessions court file a notice of appeal
to obtain a trial de novo in the circuit court. See US Bank Nat’l Ass’n v. Brooks, No.
M2016-00689-COA-R3-CV, 2016 WL 6581344, at *5 (Tenn. Ct. App. Nov. 4, 2016)
(“The notice of appeal from general sessions court to the trial court is specific, requiring
that anyone who wishes to appeal must properly perfect his appeal within ten days of the
entry of the general sessions judgment.”) (citing Braverman v. Roberts Const. Co., 748
S.W.2d 433, 437 (Tenn. Ct. App. 1987) (holding that “a provision for de novo trial in the
circuit court must be taken to mean a de novo trial as to the parties before that court by
appeal.”)); see also Milliken v. Feldt, No. 01-A-01-9806-CV-00271, 1999 WL 452319, at
- 12 -
*2 (Tenn. Ct. App. July 1, 1999) (disallowing an appeal by a party that did not perfect an
appeal).

The result when one party seeks to add additional claims in the circuit court when
it did not perfect an appeal under the prior version of section 27-5-108 was thoroughly
considered in Crowley v. Thomas. In Crowley, the plaintiff filed a personal injury claim
against the defendant in general sessions court, seeking “compensatory damages in an
amount not exceeding the $25,000 jurisdictional limit.” 343 S.W.3d at 33. The plaintiff
obtained a judgment for $14,500.00; only the defendant appealed to circuit court. The
plaintiff then filed an amended complaint in circuit court adding his wife as a plaintiff and
a second amended complaint to add an additional claim. A fourth amended complaint was
eventually filed by the plaintiff, seeking $300,000.00 in damages. Three days before the
scheduled trial, the defendant filed a notice of dismissal of his appeal and a motion to affirm
the general sessions court’s judgment. Although the plaintiff objected, the circuit court
dismissed the appeal and affirmed the original judgment entered by the general sessions
court. The plaintiff then appealed to this Court, which affirmed the judgment of the circuit
court. The plaintiff then took his argument to the Tennessee Supreme Court. Id. at 34.

The supreme court framed the question on appeal as “whether the circuit court
properly affirmed the judgment of the general sessions court in response to [the
defendant’s] notice of dismissal of her appeal.” Id. at 34. The court concluded that it did.
First, the court noted that appeals from general sessions courts are governed by statute.
Based on the language of section 27-5-107, the court noted that it had previously held that
“the circuit court must affirm a judgment of the general sessions court when the defendant
dismisses the appeal.” Id. at 34 (citing C.B. Donaghy & Co. v. McCorkle, 118 Tenn. 73,
98 S.W. 1050, 1051 (Tenn. 1907) (citing Shannon’s Code § 4876 (later codified as Tenn.
Code Ann. § 27-5-107)) (discussing a defendant’s dismissal of its appeal from the
judgment of a justice of the peace)); Gill v. State Farm Ins. Co., 958 S.W.2d 350, 351–52
(Tenn. Ct. App. 1997) (affirming the circuit court’s dismissal of the defendant’s appeal
from the judgment of the general sessions court over the plaintiff’s objection).

Moreover, the court confirmed that its decision did not conflict with Ware v.
Meharry Medical College, 898 S.W.2d 181, 184 (Tenn.1995), which held that “an appeal
from the general sessions court provides an opportunity for a new trial in the circuit court
as if the case had originated in the circuit court[.]” Crowley, 343 S.W.3d at 35. Instead, our
supreme court noted that section 27-5-108(a) mandated that “a party must file [a] timely
notice of appeal” in order “[t]o perfect an appeal[.]” Id. (citing Tenn. Code Ann. § 27-5-
108(a), (b)). Thus, the plaintiff “could have appealed the [general sessions court’s]
judgment in his favor because the general sessions judgment was less than the amount he
requested and was therefore ‘adverse’ to him.” Id. But,

He did not appeal the judgment, and his cause of action proceeded to the
circuit court only by virtue of [the defendant’s] appeal. While [the
- 13 -
 defendant’s] appeal was pending, Mr. Crowley was free to amend his
complaint. Tenn. Code Ann. § 16-15-729 (2009). [The defendant] however,
could dismiss the appeal without the consent and over the objection of Mr.
Crowley. Gill, 958 S.W.2d at 351; Lawrence A. Pivnick, Tennessee Circuit
Court Practice, § 3:11 (2011 ed.). The dismissal of [the defendant’s] appeal
removed the case from the circuit court and was fatal to [the plaintiff’s]
amended cause of action.

Crowley, 343 S.W.3d at 35.

Chimneyhill asserts that the same result is not required here because the facts are
distinguishable from Crowley. Specifically, Chimneyhill asserts that Crowley does not
prevent a plaintiff from raising “additional claims against the defendant that were not
litigated in the [g]eneral [s]essions [c]ourt.” Thus, Chimneyhill asserts it was entitled to
raise “a new claim against Mr. Chow for unapproved repairs to his unit in violation of the
Master Deed” that remained viable notwithstanding Mr. Chow’s dismissal of his appeal.
To hold otherwise, Chimneyhill claims, would force a plaintiff to “either file a frivolous
appeal or file a separate action in [c]ircuit [c]ourt.”

Respectfully, we disagree. First, we note that there is simply no language in Crowley
that supports Chimneyhill’s choice to distinguish between old claims and “new” claims.
For one, nothing in the legal analysis in Crowley discusses or analyzes such a distinction.
Moreover, Chimneyhill’s assertion that there were no new claims raised before the circuit
court in Crowley is inexplicable, as the Crowley Opinion specifically notes that the plaintiff
filed a number of amended claims, one of which named an entirely new party, his wife,
and one that “asserted an additional claim[.]” Id. at 33 (emphasis added). But these
additional or new claims did not alter the fact that the defendant’s dismissal of the appeal
was fatal to the amended cause of action. Id. at 35. The fact that Chimneyhill ostensibly
chose to add additional claims against Mr. Chow in the trial court likewise does not alter
the mandate of section 27-5-107 and Crowley.

Here, only Mr. Chow chose to appeal the judgment of the general sessions court.
Thus, the only matter properly before the trial court was “simply a continuation of the
defendant’s [i.e., Mr. Chow’s] opposition to the plaintiff’s [i.e., Chimneyhill’s] civil
warrant initiated in the general sessions court.” Id. While Chimneyhill “was free to amend
[its] complaint” despite not filing its own notice of appeal, it did so undertaking the risk
that Mr. Chow “could dismiss the appeal without the consent and over [Chimneyhill’s]
objection[.]” Id. When that dismissal occurred, the case “was removed . . . from the circuit
court” and the dismissal “was fatal to [Chimneyhill’s] amended cause of action.” Id.

Chimneyhill also attempts to distinguish Crowley on the basis that it was not
dissatisfied with the judgment of the general sessions court. It is true that the Crowley court
noted that the judgment for the plaintiff in the general sessions court was “adverse” to him
- 14 -
in that “the general sessions judgment was less than the amount he requested[.]” Id. at 35.
But the plaintiff in Crowley sought a judgment in its general sessions court civil warrant
only for an unspecified amount “not exceeding the $25,000 jurisdictional limit.” Id. at 33.
The same is true here. Specifically, Chimneyhill’s civil warrant simply states that it is
seeking damages for “delinquent HOA dues, late charges, attorney fees, court costs and/or
assessments . . . under $25,000.00.” Thus, the award of only $10,218.25 was similarly
adverse to Chimneyhill.

And the facts as they developed in the trial court confirm that Chimneyhill was not
satisfied with the judgment it received in the general sessions court. Chimneyhill clearly
wished to assert additional claims against Mr. Chow arising from the same contractual
relationship that spawned the general sessions lawsuit. Chimneyhill’s characterization of
this claim as “new” is suspect, as it appears that any claim that Chimneyhill had against
Mr. Chow for unapproved repairs was known to them in September 2015, well before the
filing of the general sessions court action. Moreover, even if we were to credit
Chimneyhill’s argument that some of its claims were “new” in that they may not have been
the exact claims litigated in general sessions court, that is not true of all the claims.
Specifically, the attorney’s fees sought by Chimneyhill related to work done in both the
general sessions court and the trial court. The trial court awarded Chimneyhill its full
requested amount of attorney’s fees.9 From the affidavit filed by Chimneyhill’s property
manager, $3,588.00 of the amount requested was attributable solely to the general sessions
court proceedings. Because Chimneyhill was also awarded the full $10,218.25 judgment
entered by the general sessions court,10 Chimneyhill was able to obtain at least a $3,588.00
increase in the overall amount of compensation it was awarded solely relative to the general
sessions court action. In seeking this additional compensation, Chimneyhill was therefore
not entirely satisfied with the judgment obtained in the general sessions court. And if
Chimneyhill had properly perfected its appeal and ultimately prevailed on this additional
claim, its appeal would certainly not have been frivolous. See Robinson v. Currey, 153
S.W.3d 32, 42 (Tenn. Ct. App. 2004) (holding that a frivolous appeal is one that is devoid
of merit or has no reasonable chance of success).

These facts distinguish the present case from Johnson v. Memphis Guitar Spa,
LLC, 600 S.W.3d 348 (Tenn. Ct. App. 2019), perm. appeal denied (Tenn. Sept. 20, 2019).
In Memphis Guitar Spa, the plaintiff attempted to appeal an adverse judgment to the circuit
court, but the appeal was not perfected in a timely manner. In addition to filing a motion to
dismiss the appeal for lack of subject matter jurisdiction, the defendant filed a permissive
counterclaim against the plaintiff that had not been raised in the general sessions court. The
trial court dismissed the appeal, but retained subject matter jurisdiction over the
counterclaim. The plaintiff appealed, arguing that the dismissal of the appeal mandated

9
In fact, the amount awarded by the trial court was more than shown by the last affidavit
filed by Chimneyhill.
10
Again, the $0.25 difference appears to be a clerical error.
- 15 -
dismissal of the counter-claim.

Relying heavily on then-Judge Kirby’s unreported opinion in Bevels v. Tubbs, No.
W2012-02375-COA-R3-CV, 2013 WL 6212222 (Tenn. Ct. App. Aug. 22, 2013), as well
as Tennessee Rules of Civil Procedure 42.04 and 13.09, we affirmed the decision of the
trial court. Specifically, we noted that “Rule 13.09 empowers the court to enter judgment
on a cross-claim or counterclaim, even though the claims of the opposing party have been
already disposed of.” Johnson, 600 S.W.3d at 354 (citing Bevels, 2013 WL 6212222, at
*8) (citing Tenn. R. Civ. P. 13.09 advisory committee cmt. (“Rule 42 empowers the court,
in order to avoid inconvenience or prejudice to a party, to order separate trials of one or
more cross-claims, counterclaims, etc. Rule 13.09 empowers the court to enter judgment
on a cross-claim or counterclaim, even though the claims of the opposing party have been
already disposed of.”)). Thus, we were not persuaded by the plaintiff’s argument that the
claims subject to the appeal from the general sessions court and the claims raised in the
counterclaim were “inextricably linked, such that the dismissal of the general sessions
appeal likewise demands dismissal of the permissive counterclaim.” Id. at 351.

The same is not true here. As an initial matter, as previously discussed, Chimneyhill
sought, and received, additional compensation beyond the original general sessions court
judgment for work performed in that court. Thus, unlike the counterclaims at issue in
Memphis Guitar Spa, the claim for additional compensation in the trial court was “linked”
to the general sessions court claim.

Even more importantly, both Memphis Guitar Spa and Bevels relied on Rule
13.09’s requirement that the dismissal of one party’s claims did not mandate dismissal of
any cross-claims or counterclaims filed by the opposing party. Rule 13.09 expressly
provides that

If the court orders separate trials as provided in Rule 42, judgment on a
counterclaim or cross-claim may be rendered in accordance with the terms
of Rule 54 when the court has jurisdiction to do so, even if the claims of the
opposing party may have been dismissed or otherwise disposed of.

Although Rule 42.02 allows separate jury trials of “one or more claims, cross-claims,
counterclaims, or third-party claims[,]” Rule 13.09 expressly limits the protection against
dismissal only to “counterclaim[s] or cross-claim[s]” of the opposing party. Compare
Tenn. R. Civ. P. 42.02 (“The court for convenience or to avoid prejudice may in jury trials
order a separate trial of any one or more claims, cross-claims, counterclaims, or third-party
claims, or issues on which a jury trial has been waived by all parties. For the same purposes
the court may, in nonjury trials, order a separate trial of any one or more claims, cross-
claims, counterclaims, third-party claims, or issues.”), with Tenn. R. Civ. P. 13.09. We
presume that the decision to limit the ambit of Rule 13.09 to only counterclaims or cross-
claims was intentional. See State v. Welch, 595 S.W.3d 615, 623 (Tenn. 2020) (quoting
- 16 -
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.”).

Chimneyhill’s purported additional claim, however, did not constitute a cross-claim
or counterclaim. See Black’s Law Dictionary 402 (9th ed. 2009) (defining a
“counterclaim” as “[a] claim for relief asserted against an opposing party after an original
claim has been made”); Black’s Law Dictionary at 433 (defining a “cross-claim” as “[a]
claim asserted between codefendants or coplaintiffs in a case”). It is therefore apparent that
the situation presented here is not covered by the plain language of Rule 13.09, nor the
cases relying upon it. Chimneyhill has cited no similar rule of civil procedure that
explicitly saves additional claims filed by a party following an appeal from the general
sessions court by an opposing party. Instead, the controlling authority on that subject is
undoubtedly Crowley.

We recognize that this opinion appears to create an anomalous result solely based
on the position of the party asserting additional claims: new claims asserted by a plaintiff
who did not appeal a general sessions court judgment will be dismissed upon dismissal of
the appeal of the opposing party, while the same is not true of a counterclaim or cross-
claim filed by a defendant in the same situation. We note, however, that as an intermediate
appellate court, we are not at liberty to depart from the precedential decisions handed down
by our supreme court. See Schultz’ Est. v. Munford, Inc., 650 S.W.2d 37, 39 (Tenn. Ct.
App. 1982) (“Since the issue before us has been passed on by the Supreme Court and since
we are an intermediate appellate court, we are not at liberty to depart
from precedent decisions.”). Crowley is clearly applicable here and requires the dismissal
of the additional claims raised by Chimneyhill in light of its decision not to appeal the
general sessions court’s decision and Mr. Chow’s decision to dismiss his appeal.

Moreover, it must be noted that the position of the party asserting a claim is not an
insignificant fact. The plaintiff, unlike a defendant or cross-plaintiff brought into a case by
another party, is the master of his or her complaint. See Mullins v. State, 294 S.W.3d 529,
540 (Tenn. 2009) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425,
96 L.Ed.2d 318 (Tenn. 1987)) (“Plaintiffs are the masters of their complaint and may
choose to file it either in state or in federal court subject to applicable rules of jurisdiction
and venue.”). Here, it was Chimneyhill’s decision to file its claim in the general sessions
court and to only raise its claims for delinquent home owner’s association dues, late
charges, attorney’s fees, and assessments in that initial action. According to Chimneyhill’s
amended complaint, however, the alleged unauthorized repair occurred in September 2015;
the additional claim raised by Chimneyhill was therefore in existence at the time it filed its
- 17 -
general sessions court action, but Chimneyhill voluntarily chose not to raise that claim at
that time. And having been awarded less than the $25,000.00 jurisdictional limit allowed
in general sessions court, despite apparently incurring attorney’s fees that were not
compensated by the general sessions court judgment, Chimneyhill chose not to file its own
notice of appeal. Under Crowley, it was therefore Chimneyhill’s own decisions that
resulted in Chimneyhill’s additional claims being dismissed when Mr. Chow chose to
dismiss his appeal.11

In sum, section 27-5-107 expressly provides that when an appeal is dismissed by
the appellant/defendant, the appellee/plaintiff “is entitled to an affirmance of the judgment
below, with costs.”12 The Tennessee Supreme Court has interpreted this language as
mandatory. See Crowley, 343 S.W.3d at 34 (stating that the court “must affirm” in this
situation). Here, Mr. Chow was the only party to perfect an appeal under section 27-5-108.
Under the controlling authority in Crowley, when Mr. Chow filed his notice of dismissal
of his appeal, the trial court was required to dismiss the appeal and affirm the judgment of
the general sessions court. Id. at 35. No other actions were permitted under the relevant
statutes in place at the time that Mr. Chow perfected his appeal and no additional damages
may be awarded to Chimneyhill.13 The judgment of the trial court is therefore reversed to
the extent that it awarded Chimneyhill $36,540.00 in additional compensation for the
attorney’s fees it incurred. For the same reasons, Chimneyhill’s request for attorney’s fees
incurred on appeal is respectfully denied.

The question of discretionary costs is less clear. Discretionary costs can be awarded
to prevailing parties under Rule 54.04(2) of the Tennessee Rules of Civil Procedure.
Compare Tenn. R. Civ. P. 54.04(1) (involving “[c]osts included in the bill of costs prepared
by the clerk,” which “shall be allowed to the prevailing party”), with Tenn. R. Civ. P.
54.02(2) (involving certain “costs not included in the bill of costs prepared by the clerk,”
which are “allowable only in the court’s discretion”). As this Court has explained,

When deciding whether to award discretionary costs under Tenn. R. Civ.
P. 54.04(2), the courts should (1) determine whether the party requesting
the costs is the “prevailing party,” (2) limit awards to the costs specifically
identified in the rule, (3) determine whether the requested costs are necessary
and reasonable, and (4) determine whether the prevailing party has engaged

11
We note that any harsh result created by this decision will be short-lived. As previously discussed,
section 27-5-108 has been amended to provide that cross-appeals are not required to appeal general sessions
court judgments. While this rule is of no benefit to Chimneyhill, it will benefit appellees in future cases.
12
Although the language of the statute utilizes only “appellant” and “appellee,” the Tennessee
Supreme Court has clarified that “a plaintiff’s dismissal or ‘nonsuit’ of an appeal from a general sessions
judgment does not require an affirmance of the judgment.” Crowley, 343 S.W.3d at 34 (citing Kirby v.
Cramer, 219 Tenn. 447, 410 S.W.2d 724, 725 (Tenn. 1967) (per curiam)).
13
This, of course, includes any damages related to the claims awaiting adjudication in the trial
court.
- 18 -
 in conduct during the litigation that warrants depriving it of
the discretionary costs to which it might otherwise be entitled. The courts
should not, however, base their decisions to award costs under Tenn. R. Civ.
P. 54.04(2) on (1) a desire to punish the losing party, (2) whether the
prevailing party is the plaintiff or defendant, or (3) the weight given to a
particular witness’s testimony.

Massachusetts Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35–36 (Tenn. Ct. App.
2002) (footnotes omitted). As previously discussed, section 27-5-107 provides that when
an appeal from the general sessions court is dismissed, “the appellee is entitled to an
affirmance of the judgment below, with costs.” Thus, the governing statute clearly provides
that circuit courts have subject matter jurisdiction to award costs to the appellee when an
appeal of a general sessions court’s judgment is dismissed. The only question, then, is
whether these costs include only the mandatory costs required under Rule 54.04(1) or also
the discretionary costs allowed under Rule 54.04(2).

The construction or interpretation given to Tennessee rules and statute is an issue of
law. See State v. Dycus, 456 S.W.3d 918, 924 (Tenn. 2015) (citations omitted) (stating that
de novo review applies to issues of statutory interpretation); Thomas v. Oldfield, 279
S.W.3d 259, 261 (Tenn. 2009) (citation omitted) (stating that interpretation of the
Tennessee Rules of Civil Procedure is a question of law to which de novo review applies;
“Although the rules of civil procedure are not statutes, the same rules of statutory
construction apply in the interpretation of rules.”).

No court has ever held that the costs allowed under section 27-5-107 either include
or do not include both discretionary and non-discretionary costs. Instead, the only case to
consider the overlap of section 27-5-107 and Rule 54.02(2) is once again Crowley. In that
case, the circuit court awarded the plaintiffs $1,808.10 in discretionary costs. The
Tennessee Supreme Court, however, did not expressly evaluate the propriety of the award,
as it was not appealed. Crowley, 343 S.W.3d at 34 n.1. While not dispositive of the issue
of whether the statute allows discretionary costs in addition to mandatory costs, the
Crowley opinion is helpful in one respect: it confirms that this question does not implicate
subject matter jurisdiction. Importantly, “subject matter jurisdiction cannot be conferred
by waiver or consent[.]” McCarver v. Ins. Co. of State of Pennsylvania, 208 S.W.3d 380,
383 (Tenn. 2006). Thus, the fact that our supreme court did not disturb the discretionary
costs award in light of the parties’ failure to raise it as an issue indicates that this question
does not implicate subject matter jurisdiction, particularly given that the circuit court’s
authority to act was the central issue in Crowley. Consequently, any objection as to the
propriety of the discretionary costs awarded here can be waived.

Here, Chimneyhill raised a request for discretionary costs in its Janaury 29, 2020
supplemental brief in support of partial summary judgment. An affidavit attached to that
filing noted that Chimneyhill had incurred a total of $3,728.28 in discretionary costs,
- 19 -
including court reporter services, alias subpoenas, and Chimneyhill’s property
manager/bookkeeper’s time dealing with the litigation. Although Mr. Chow asserts on
appeal that these fees should not be allowed following a dismissal under Tennessee Code
Annotated section 27-5-105, he did not take the same position in the trial court. Rather, in
Mr. Chow’s January 29, 2020 memorandum related to the notice of dismissal, Mr. Chow
asserted that there was no authority under Tennessee law “that the [p]laintiff would be
entitled to compensation of any kind including any attorney’s fees with the only possible
exception being discretionary costs and nothing else!”14 Mr. Chow later reiterated that
Chimneyhill was “NOT entitled to compensation of any kind for the delay in filing the
Notice to Dismiss except discretionary costs.” (emphasis added). Nothing further was
filed by Mr. Chow objecting to the award of discretionary costs as a general matter or as
to the specific fees sought by Chimneyhill. Instead, it appears that the first time Mr. Chow
objected to the fees in a general sense was in this appeal; the first time that Mr. Chow raised
any specific objection as to the fees requested to be awarded was in his reply brief.15
Generally, issues may not be raised for the first time on appeal. See, e.g., Barnes v. Barnes,
193 S.W.3d 495, 501 (Tenn. 2006) (“Issues not raised in the trial court cannot be raised for
the first time on appeal.”); Main St. Mkt., LLC v. Weinberg, 432 S.W.3d 329, 337 n.4
(Tenn. Ct. App. 2013) (“Issues not raised at trial will not be considered for
the first time on appeal.”). Rather, where a party did not first raise an issue in the trial court,
“he has waived his right to argue this issue for the first time on appeal.” In re M.L.P., 281
S.W.3d 387, 394 (Tenn. 2009). In the same vein, issues are generally waived when raised
for the first time in a reply brief. See Owens v. Owens, 241 S.W.3d 478, 499 (Tenn. Ct.
App. 2007) (“A reply brief is a response to the arguments of the appellee. It is not a vehicle
for raising new issues.”).

In our view, during the trial court proceedings, Mr. Chow essentially acquiesced to
the award of discretionary costs as proper under section 27-5-107. Moreover, nothing in
the record indicates that he objected to the specific costs requested by Chimneyhill in the
trial court. See generally Jefferson, 104 S.W.3d at 36 (“Once a party seeking costs under
Tenn. R. Civ. P. 54.04(2) has filed its motion, the non-moving party may present evidence
and argument challenging the requested costs. The party who takes issue on appeal with a
trial court’s decision regarding discretionary costs has the burden of showing how the trial
court abused its discretion.”).16 As such, we conclude that he has waived any objection to
the trial court’s decision to award Chimneyhill $3,728.28 in discretionary costs. The trial
court’s decision as to discretionary costs is affirmed. All other issues are pretermitted.

14
Mr. Chow’s counsel in the trial court rather enjoyed the use of exclamation points. Mr. Chow is
represented by different counsel in this appeal.
15
In particular, Mr. Chow asserted that the fees charged by Chimneyhill’s bookkeeper were not
proper under Rule 54.04. Other than Rule 54.04, no law was cited to support this argument.
16
Mr. Chow initially argued that Chimneyhill did not seek discretionary costs in the trial court, as
no evidence of such a request was included in the appellate record. However, following the filing of Mr.
Chow’s brief, Chimneyhill properly supplemented the appellate record with its January 29, 2020 filing in
which it did request an award of discretionary costs.
- 20 -
 IV. CONCLUSION

The judgment of the Shelby County Circuit Court is reversed in part, affirmed in
part, and this cause is remanded for the entry of an order affirming the Shelby County
General Sessions Court’s judgment in full. Costs of this appeal are taxed to Appellee
Chimneyhill Condominium Association, for which execution may issue if necessary.

S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE

- 21 -