### IN THE CO URT OF APPEALS OF TE NNE SS EE AT KNOX VILLE Nov em be r 3, 2 00 9 S es si on

STATE OF TENNESS EE ex rel . ROBERT L . WOL FENBARGER, I II ., et al ., v. SCO TT MO ORE, et a l.

A p p e a l f r o m t h e C h a n c e r y C o u r t f o r K n o x C o u n t y N o . 1 7 1 4 2 6

- 2 J u d g e J o n K e r r y B l a c k w o o d , S r . J u d g e

N o . E 2 0 0 8

- 0 2 5 4 5

- C O A

- R 3

- C V

- F I L E D F E B R U A R Y 1 2 , 2 0 1 0

S i x t e e n " c i t i z e n p l a i n t i f f s " f i l e d t h i s o u s t e r s u i t a g a i n s t S c o t t M o o r e a n d P a u l P i n k s t o n , K n o x C o u n t y C o m m i s s i o n e r s

. P l a i n t i f f s d e m a n d e d a j u r y , w h i c h t h e T r i a l C o u r t d i s a l l o w e d a n d
, f o l l o w i n g a n e v i d e n t i a r y h e a r i n g , t h e T r i a l J u d g e f o u n d t h a t S c o t t M o o r e s h o u l d b e r e m o v e d f r o m o f f i c e , b u t h e l d t h e p e t i t i o n e r s w e r e u n s u c c e s s f u l i n t h e i r a t t e m p t t o o u s t P a u l P i n k s t o n

. T h e p a r t i e s h a v e a p p e a l e d a n d w e h o l d t h a t p l a i n t i f f s a r e e n t i t l e d t o a j u r y t o d e c i d e t h e f a c t u a l i s s u e s i n d i s p u t e a n d v a c a t e t h e T r i a l C o u r t ' s J u d g m e n t a s t o P a u l P i n k s t o n a n d

r e m a n d f o r a n e w t r i a l

. T h e J u d g m e n t a s t o S c o t t M o o r e i s a f f i r m e d

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T e n n . R

. A p p . P

. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C h a n c e r y C o u r t V a c a t e d i n P a r t , A f f i r m e d i n P a r t a n d R e m a n d e d

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H E R S C H E L P IC K E N S F R A N K S , P

. J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h D

. M IC H A E L S W IN E Y , J

. , a n d J O H N W

. M C C LA R T Y , J

. , j o i n e d

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A r t h u r G

. S e y m o u r , J r

. , a n d K e v i n A

. D e a n , K n o x v i l l e , T e n n e s s e e , f o r t h e a p p e l l a n t , S c o t t M o o r e a n d a p p e l l e e , P a u l P i n k s t o n

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H e r b e r t M o n c i e r , K n o x v i l l e , T e n n e s s e e , f o r t h e a p p e l l e e s , S t a t e o f T e n n e s s e e , e x r e l
, R o b e r t W o l f e n b a r g e r , I I I

. , a n d " C i t i z e n P l a i n t i f f s "

.O P I N I O N

This ouster action was filed on J anuar y 22, 2008 in the Chance ry Court, by six teen “citizen plaintiffs" on rela tion to the State of Tenne ssee and Knox County
, Tenne ssee ag ainst Knox County Commi ssioners Scott Moore and Paul Pinkst on. The complaint sets forth a cause of action ag ainst defe ndants pursuant to Tenn. Code Ann. § 8-47-101 et s eq

. and Tenn. Code Ann. § 29-35-101 et 1
seq. seeking remova l of defe ndants from their office s as Knox Co u n ty Co mmissi oners for violations 2 of Tennessee’ s Open Meeting Act in J anuar y 2007, for violation of t heir oath of office in J anuar y 2007, and for

making false sta tements while under oath in the Open Me eting s Act L itigation.

Plaintiffs descr ibe themselves as ten“[c]iti zen plaintiffs” and state that they are Knox County citizens and fre eholder s ; private individuals ; local taxpay ers; members of a political association 3 4

Tenn. Code Ann. § 8-47-101 provides: “Eve ry person holding any office of trust or profit, 1 under and by virtue of any of the laws of the sta t e, ei ther state, county , or municipal, except such office rs as are by the constitution remova ble only and exclusively by m et h o d s other than those provided in this chapte r, who shall knowing ly or willfully commit misconduct in office
, or who shall knowing ly or willfully neg lect to perf orm any duty enjoined upon such office r by any of the laws of the state, or who shall in any public place be in a state of intox ication produce d by strong drink voluntarily taken, or who shall eng ag e in any form of illega l g ambling, or who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forf eit such office and shall be ousted fr om such offic e in the manne r her einaf ter provide d.”

Tenn. Code Ann. § 29-35-101( 2) provides: “An action lies in the name of the state ag ainst 2 the person or corpor ation offe nding, in the following case s:

. . . (2) Whenever any public office r has done, or suf

fer ed to be done , any

act whic h works a f

orfe iture of that of

fice r' s office . . . .”

Tenn. Code Ann. § 2 9 -3 5 -110 provides that suit may be broug ht on the part of private 3 individuals and: a) [i ]t is also broug ht on the information of any person, upon such person g iving

secur ity for the c osts of the proce eding s, to be approved by the clerk of t he court in which the bill is filed. (b) When the suit is broug ht at the rela tion of a private individual, it shall be so stated in the bill and proce eding s, and such individual is responsibl e for costs in case they are not adjudg ed
ag ainst the defe ndant.

T en n

. Code Ann. § 29-35-110 provides that suit may be broug ht on the part of private 4 individuals and: a) [i ]t is also broug ht on the information of any person, upon such person g iving

secur ity for the costs of t he proc eeding s, to be approve d by the clerk of t he court in which the bill is filed. (b) When the suit is broug ht at the rela tion of a private individual, it shall be so stated in the bill and pro ceeding s, and such individual is responsible for costs in case they are not adjudg ed (c ont inu ed.. .)

-2-of residents supporting Knox County Term L imits ; and are publically spirited citizens seeking to

rec tify wrong s committed by

defe ndants.

The complaint further alleg ed that Scott Moore violated the Knox County Charter
, his oath of office and t he Knox County Ethics policy by secr etly obtaining advice
, assistance and servic es of a private attorney reg arding the appointment of the twelve new Commi ssioners. The complaint also alleg ed that Moore and Pinkst on misappropriate d public funds and that the acts of defe ndants justify

an aw ard of

punitive damag es.

The cer tificate of service shows the Complaint was serve d on t h e Kn ox County District Attorney Gene ral and the Knox County L aw Direc tor as provided for in Benne tt v. Stutts
, 521 S.W

. 2d 575, 577 (Tenn. 1975)

.

The L aw Direc tor of Knox County filed a statement acknow l ed gi n g s ervic e and the duty place d on the L aw Dir ector by Tenn. Code Ann. § 8-47- 111 “to aid and a ssist” the citiz en re lators in the action and that the L aw Direc tor would continue to be available further to aid and assist in the matter. How ever , the L aw Director stated that he could not repr esent or appea r as c ounsel for the plaintiffs beca

use doing so would violate his ethical obliga tions under Tenn. Sup. Ct. R. 8, RPC 1.7 and 1.9. 5

Def endants moved that the Chance llor rec use himself and for sever ance of the case s ag ainst them, and that the jury demand be struck, and a furthe r cl ai m fo r damag es. Responding to the motion, the Trial Court entere d an orde r holding the plaintiffs we re not e ntitled to a jury

.

Scott Moore filed an answe r on September 23, 2008 and Paul Pinkst on filed his answe r the
next day

. Both answe rs raised t h e af fi rm ative defe nse that one or more of the plaintiffs lack the
capa city to sue under the Ouster Act. Plai n t i ffs then filed an amende d complaint and defe ndants filed an answe r to the amende d complaint. I n that answe r the defe ndants raise the issue of whether plaintiffs have standing to sue under the quo warranto statutes, Tenn. Code Ann. §§ 29-35-101( 2), 29-35-106 a

nd 29-35-113 a

nd that Tenn. Code Ann. § 5- 1-106 is inapplicable to the suit.

Following the evidentiary hear ing, the T ri al Court stated t hat bot h defe ndants violated t he Open Meeting s Act by clea r and convincing evidenc e. The Court said that a violation of the Open Meeting s Act was misconduct, but the Court had to deter mine if defe ndants' conduct was knowing and willful. The Court found that while the defe ndants, as well as the other Comm issioners had violated the Open Meeting Act, the misconduct was not willful or knowing and that the conduct was

(... con ti nue d) 4
ag ainst the defe ndant.

Rule 1.7 deal s g ene ra ll y wit h confl ic ts of int er est and Rule 1.9 deal s with con fl ic t of int er est and 5 for m er cl ie nts

.
-3-not such conduct that would subject them to an indictment under common law. The Court held that

the petition failed on this g round.

The Court then considere d the a ll e g a ti o n s th a t Commissioner Pinkst on made false statements under oath conce rning the alleg ed violations of the Open Meeting Act, and the Court conclude d that while Commi ssioner Pinkst on may have been in err or in his interpre tation of the Open Meeting Act, he did not make false statements. The Trial Court he ld tha t the petition failed as to Commi ssioner Pinkst on.

The Trial Court then turned to the events of J anuar y 11, 2007 at the m ee t i ng of the Knox County Commi ssioners and conclude d afte r revie wing the evidenc e that false statements wer e g iven under oath intentionally
, knowing and with intent to dece ive. Perjury is define d in Tenn. Code Ann. 3 6

- 1 6

- 7 02 and beca

use Commi ssioner Moore was g uilty of perjury
, the Court order e d Co mm is s io n e r Moore r emoved f

rom offic e.

This appea l ensued a

nd the issues prese nted for r eview a re:

A. Whether plaintiffs had standing to file an ouster suit under Tenn. Code Ann. §8-47- 102? 6

B. Whether the Trial Court used the wrong evidentiar y standard in ousting Scott Moore from office for violation of the criminal statute, Tenn. Code Ann. §39-16-702, by not requiring proof be y ond a re asonable doubt, absenc e a c onviction?

C. Whether the Trial Court’s finding that Scott Moore violated Tenn. Code Ann. §39- 16-702 wa s supported by

a pre pondera

nce of the evidenc e?

D. Were the State and plaintiffs entitled to and err oneously deni ed a jury trial ag ainst defe ndants? 7

E. Were the State and plaintiffs entitled to and err oneously denied the rig ht to j o in claims for ouster pursuant to T enn. Code Ann. § 8- 47-101 with claims for r emoval pursuant to Tenn. Code A nn. § 29-35-101( 2) ag ainst defe ndants?

F. Did the Trial Court err oneously apply Tenn. Code Ann. § 8-47-101 “knowin gl y ”; “willfully ”; “misconduc t in office” ; or “ne g lect to per form a duty ”?

G. Did the Trial Court apply an incorre ct standard of proof of cl ea r an d convincing evidenc e?

I ssues A - C we re r aised by defe ndant/appellant Scott Moore. 6

I ssues D - H w ere raised by plaintiffs. 7

-4-H. Did the Trial Court er r in deny ing the plaintiff’s application for attorne y ’s fe es?

A trial court’s finding s of fac t in a non-jury case are revie wed de novo upon the rec ord. The trial court is aff

orded a presumption of corr ectne ss unless t h e p re p o ndera nce of the evidenc e is otherwise. Tenn. R. App. P. 13 (d); W right v. City of

Knoxville, 898 S.W .2d 177, 181 (Tenn. 1995). The trial court’s conclusions of law are revie wed under a purely de novo s t an d ard with no presumption of correc tness. Taylor v. Fezell , 158 S.W .3d 352, 357 (Tenn. 2005)

, Union Carbide Corp. v. Huddleston 854 S.W .2d 87, 91 (Tenn. 1993)

.

Def endant Scott Moore contends that plaintiffs did not have standing to f ile this suit under the Ouster Act, Tenn. Code Ann. §8-47-101 et seq ., and specific ally under section 8-47-102. Plaintiffs contend that as defe ndant never raised this issue at the trial level, he cannot raise the issue

on appea l. Alterna tively
, plaintiffs arg ue that they had standing to bring the suit pursua nt to Tenn. C o d e An n. § 8-47-110. The rec ord does not show that the issue was raised below, howeve r, th i s Court can sua sponte consider the standing issue on appea l. See Public Employe es For E n v ir o n m e n ta l R e

s p o n s ib il it y v. Tennessee W

ater Quality Control Bd.
, No. M2008-0156 7

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- CV, 2009 WL 1635087 at * 5 - 6 (T enn. Ct. App. J un. 10, 2009).

Tenn. Code Ann. § 8-47-110 provides plaintiffs, such as these, standing to bring an ouster suit. This section provides:

The petition or complaint shall be in the name of the state and may be filed upon the rela tion of the attorney g ener al and repor ter, or the district attorney g ener al for the state, or the county attorney in the case of county office rs, and of the city attorney , or the district attorn ey g ener al, in the case of municipal officer s ; a n d i n all cases it m ay be fi led, wi thout the

concurre nce of any of such off icer s, upon the relat ion of t en (10) or m ore citize ns and freeholders of the state , county, or city, as t h e case may be, upon their g iving the usual

secur ity for c osts. (Emphasis supplied).

Acc ording ly
, section 110 of the ouster statute specific ally allows these plaintiffs to bring this suit on behalf of the county

. 8 9

S ee State ex rel. Jones v. Looper
, 86 S.W .3d 189, 191 (Tenn. Ct. App. 2000); Duncan v. 8 Cherokee Ins. C o., No. 87 -4 0 -II
, 1 987 WL 11329 at * 2 (Tenn. App. May 27, 1987); State ex rel. Plemons v. W

ester , No. 03A01-9810-CV- 349,1999 WL 427644 (Tenn. App. J un. 18, 1999)(ouster suits brought by

ten or more named c itiz ens pursuant to Tenn. Code A nn. § 8-47-110.

This Court rec ently aff

irmed the trial courts’ dismiss al of suits broug ht by citizen plaintiffs 9

on behalf o f t h e state in State, ex rel. Dese lm v. Tennessee Peac e Officers Standards Com'n
, No. (c ont inu ed.. .)

-5-Scott Moore contends that he was ousted from office based on the Trial Court’s finding that

he viol ated a penal statute for mis demea nor perjury
, Tenn. Code Ann. § 39-16-702, a nd the Trial J u d ge s h o u l d have applied the standard of proof of bey ond a rea sonable doubt used in criminal
matters ra ther than the clea r and c onvincing evidentiar y standard.

This issue was not ra ised by Mr. Moore at the trial level, thus he is prec luded form raising it on appea l. Correll v. E.I. DuPont de Nemours & Co., 207 S.W .3d 751, 757 (Tenn. ,2006)(c iting Simpson v. Frontier Cmty. Credit Union
, 810 S.W .2d 147, 153 (Tenn.1991)

. Howeve r, even if the issue could be raised at this stag e, it is without merit. The ouster statute, Tenn. Code. Ann. § 8-47- 101 provides:

Every person holding any office of trust or profit, under and by virtue of any of the laws of the state, either state, county , or municipal, excep t s u ch o fficers as are by the constitution

remova ble only and exclusively by methods other than those provided in this c hapter
, who

s h all knowing ly or willfully commit misconduct in office
, or who shall knowing ly o r wi llfully neg lect to perf

orm any duty enjoined upon such office r by any of the laws of the state, or who shall in any public place be in a state of intox ication produce d by strong drink voluntarily taken, or who shall eng ag e in any form of illega l g ambling, or wh o shall com m it
any a ct co nstituting a violation of any penal statute involvi ng m oral turpitude, shall forf eit such off

ice and shall be ousted from such off ice in th e m anner hereinafter provided. (Emphasis Supplied).

Tenne ssee c ases instruct that whe n a publi c off icial is ousted from off

ice a fter a finding of perjury by a court in a civil proce eding the corr ect evidentiar y standard to be applied is that of clea r and convincing evidenc e. I n State ex rel. Plemons v. W ester , No. 03A01-9810-CV- 349, 1999 WL 427644 (Tenn. A

pp. J un. 18, 1999) citizen plaintiffs filed an ouster sui t under Tenn. C ode Ann. § 8-47-101 seeking to have the May or of Har riman, Tenne ssee ousted fr o m o ffice based on the alleg ation that he had violated his oath o f o ffice. Id. at * 1. The plaintiffs did not arg ue that the May or had committed willful misconduct i n o ff i ce, or that he willfully neg lected to perf orm any duty of office

. Howeve r, they arg ued that he was g uilty of perjury becau s e h i s o ath of office i n cl u d ed t h e provision that he had no persona l contra cts with the City of Har riman. Plaintiffs contended t h at as the May or was employ ed by the city ’s utilit y board, he had an employ ment contra ct with the city
, thus his oath was false. This Court noted one of the statutory basis for ouster is a viol ation of a pe nal statute bef ore a n officia l may be oust ed from office

. I n that case , as here, it was the perjury statute that was alleg ed to have been violated. Be cause Tenn. Code Ann. § 39-16-

(... con ti nue d) 9 M2007-01855-COA- R3-CV, 2008 WL 4614523 (Tenn. Ct. App. Oct. 16, 2008), app. for perm. to appeal dismissed Fe b. 12, 2009 and State ex rel. DeSe lm v. Owings, No. E2008-0 2 3 2 6

- CO A

- R3

- CV

, 2009 WL 1470704 (Tenn. Ct. App. May 27, 2009). Tenn. Code Ann. § 8-47-110, howeve r, was appar ently

not relied on by

either pa rty in those case s.

-6-702 requ i re d that the false statement made under oath must have been made with the intent to

dece ive for it to be classified as perjury
, plaintiffs had to produce evidenc e that the May or had made his oath with an intent to dece ive befor e ouster could be order ed. The Cou rt t h en ad d resse d the standard of proof the trial court neede d to apply and found that “the evidenc e of officia l dere liction should be clear and co n v i n ci n g.” Id. at * 3 (citing State ex rel. Thompson v. W alker, 845 S.W .2d 752, 759 (Tenn. App.199 2). The Trial Court in this case did not err when it applied the clea r and convincing standard to the question of whether M r. Moore’ s testimony in the Open Meeting s L itigation wa s perjury

. The ouster case State ex rel. Leech v. W r ight, 622 S.W .2d 807 (Tenn. 1981), while not addre ssing the evidentiar

y standard, additionally establishes that ouster is purely a civil proce eding and that the rig hts g rante d to defe nd a n ts in criminal case s are not applicable under the ouster statutes. Acc ord. State ex re l. v. Howse , 132 Tenn. 452, 178 S.W. 1110.

Next, the Citi zen Plaintiffs contend the Trial Court err ed wh en it denied their jury demand. The Trial Court relied on Tenn. Code Ann. § 8-47-119( c) when it declined to allow a jury trial on the disputed fac tual issues as to the claims ag ainst both defe ndants. This section of the code provides that “a

ny defe ndant shall be e ntitled to demand and have a trial by jury as to any issue of fac t”. The Ouster statute does not expressly state that plaintiffs are entitled to demand or have a trial by jury nor does the statute expressly prec lude plaintiffs from rec eiving a trial by jury upon demand. The Trial Court, how ever , held the statute prec luded a jury trial on demand of

plaintiffs under a

ny circ umstance.

As first enac ted by Pub. Acts 1915, c. 11, the Ouster Act did not make any specific provisions for a trial by jury on issues of fact and in 1916 the Tennessee Supreme C ourt h el d that beca use the Ouster Act provided that it is a summary proce eding
, “without more”
, a trial of such an action should be one without the intervention of a jury

. State ex rel. Timothy v. Howse 183 S.W

. 510, 514 (Tenn. 1916) (citing W oods v. Varnum , [85 C al. 639, 24 Pac. 843]; Govan v . Jack son , 32 Ark. 557, cited in Taylor v

. Carr
, 125 Tenn. 249, 141 S. W. 745, Ann. Cas. 1913 C, 155; Y oder v. Com
., 107 Va. 823, 57 S. E. 583; Territory v. Sanches
, 14 N. Mex. 493, 94 Pac. 954, 20 Ann. Cas. 1 0 9 ). By Chapter 94 of the Public Acts of 1933, the “something more” was provided by the leg islature when the Ouster Act was amende d to g rant a defe ndant officia l the rig ht to a jury trial. The 1933 Act was later repe aled in 1937, which Act then denied the rig ht to a trial by jury under the Ouster Act. The provision tha t a defe ndant officia l in an ouster c ase is entitled to a jury trial upon any issue of fac t was restore d to the Act in 1952. See Edwards v. State ex rel. Kimbrough 194 Tenn. 64, 68, 250 S.W .2d 19, 20 (Tenn.1952)

.

Plaintiffs contend that t h ey h av e a rig ht to jury trial under the Tenne ssee Const itution and pursuant to Tenne ssee law. Plaintiffs support this contention by citing Tenn. R. Civ. P. 38.01 which
states that “[t] he rig ht of trial by jury as decla red by the Constit ution or exis ting laws of the state of Tenne ssee shall be prese rved to the parties inviolate.” The constitutional rig ht to a jury trial in civil

case s is found i n t h e T en n essee Constit ution, Article I
, Section 6 and provides “[t] hat t he right of trial by jury shall remain inviolate . . . . “ Gene rally the constitutional rig ht to a jury trial in civil

case s has been limit ed to those actions for which a jury was available at the time the Tenne ssee

-7-Constit ution was adopted, howeve r, the leg islature is fre e to enac t new claims for which a jury may

be demande d and to e x tend the rig ht to a jury trial to some of the case s wher e it did not pr eviously exis t. The court in Brown v. Latham, Nos

. 0 1

- A

- 0 1

- 9 4 0 1

- CV 0 0 0 08, 01-A-01- 9402-PB00061, 1994 WL 570102 (Tenn. A

pp. Oct. 19, 1994) discusse d this ge nera l rule as f ollows:

Whil e it is one of the most cher ished rig hts prese rved by our Constit ution, the rig ht to a trial by jury is not absolute. Whe re Art. I § 6 of the Tenne ssee Constit ution say s, “The rig ht to trial by jury shall rema in inviolate” it prese rves the rig ht as it exis ted at common law “insofar

as that law had been adopted and was in forc e in North Carolina when the territory embra ced i n Tenne ssee was cede d by North Carolina to the United States g overnme nt.” State v. Dusina, 764 S.W .2d 766 at 768 (Tenn.1989)

. See also Marl er v. W ear, 117 Tenn. 244, 96 S.W

. 447 (1906). As a matter of constitutional rig hts, a party was not e ntitled to a jury trial in equity
, Hunt v. Hunt, 169 Be eler 1, 80 S.W .2d 666 (1935); in a suit for mandamus, Marler

v. W ear, 117 Tenn. 244, 96 S.W

. 447 (1906), in ouster case s , State ex rel Timothy v. Howse, 134 Tenn. 67, 183 S.W

. 510 (1916); in prosec utions for petty offe nses punishable with fines of up to fifty dollars, Capitol News Co. v. Metr o politan Gove rnment, 562 S.W .2d 430 (Tenn.1978) ; in trials for mis demea nors not involving li fe or liberty
, W illard v. S t a t e, 174 Tenn. 642, 130 S.W .2d 99 (1939); in cer tain “summary ” proce eding s, State v. Hartley, 790 S.W .2d 276 (Tenn.1990) ; or to citations for contempt

, Pass v. State

, 1 81 Tenn. 613, 184 S.W .2d 1 (1944). The list is not intended to be all-inclusive. Nor does it descr ibe the curr ent state of the law, beca

use the leg islature has seen fit to extend the rig ht to a jury trial to some of the case s wher e it did not previously exis t. See Tenn. Code Ann. § 8-47-119( c); Tenn. Code Ann. § 21-1- 103.

Brown v. Latham, 1994 WL 570102 at *1.

One of the statutes ref

ere nced in Brown as an example of the leg islature extending the rig ht
to a jury trial in case s wher e that rig ht did not previously exis t was the Ouster Act, Tenn. Code Ann. § 8-47-119( c), which extended the right to a jury trial to the defendants. Fur ther, plainti ffs arg ue the leg islature also extended that rig ht to a jury trial to ouster plaint i ff s i n 1 9 7 6 when it enac ted Tenn. Code Ann. § 21-1-103 which g ave the rig ht to a jury trial in suits in c hance ry to e ither party to try and deter

mine any materia l fac t in dispute except in case s involving complicated acc ounting

or those case s wher e trial by jury is elsewhe re excepted by law or by provisions of the Tenne ssee Code. As the Ouster Act at section 8-47-118 provides that ouster actions “shall be conducte d in

acc ordanc e with the proce dures o f co u rt of chanc ery , wher e not otherwise expressly provided here in”, plaintiffs arg

ue that Tenn. Code Ann. § 21-1-103 aff ords them the rig ht to demand and have the fa ctual issues tried by a jury

.

The Supreme Court has held that when the leg islature enac ted section 21-1-103, it intended
to g ive a broad rig ht to trial by jury and unless trial by jury was “expressly excepted” by statute, the parties wer e entitled to have a jury deter mine the materia l fac ts of the case

. Smith County Education Association v. Anderson, 676 S.W .2d 328, 337 (Tenn. 1984)

.

-8-As Tenn. Code Ann. § 8-47-101 et seq. does not “expressly ” state that plaintiffs in an ouster

suit are “excepted” from trial by jury
, the Trial Court err ed when it prec luded plaintiffs from trial by jury on the di sputed materia l fac ts, since Tenn. Code A nn. § 21-1-103 e x tends the rig ht to trial by jury to a ll pa

rties in suits in chanc ery . Acc ording ly
, we vacate the J udg ment enter ed by the Court in this case as to Paul Pinkston, and remand f or a tria l by

jury on all issues of mater ial fac ts.

We aff irm, howeve r, the Trial Court's J udg ment as to Scott Moore. Neither plaintiffs

nor Moore asked that the Trial Court's J udg ment that Moore should be remove d from office beca use of perjury
, should be vacated or reve rsed, beca use the Trial Court failed to g rant plaintiff a jury trial

on that claim. Plaintiffs, in their brief ask that Moore' s conviction be aff irmed, and that we reve rse the Trial Court as to Moore and Pinkst on' s open meeting violations, and the claims ag ainst Pinkst on for perjury be rema

nded for trial on these specific issues. Essentially
, neither plaintiffs nor Moore ask that the claim ag ainst Moore for perjury be vaca ted, beca use of the Trial Court's failure to g rant p l aintiff a jury trial. Whil e, the Trial Court err ed in not g ranting plaintiffs' demand for a jury 1 0
ag ainst Moore on the open meeting act violation, this was harmless er ro r beca use the Trial Court found in favor

of plaintiffs, and Moor e wa s ousted on another g round.

I n conclusion, we aff

irm the ouster of Scott Moore, but vacat e t he J udg ment as to Paul Pinkst on, and rema

nd for a trial befor e the jury on the issues raised in the pleading
, as to Paul Pinkst on.

The cost of the appea l is assessed one-ha lf to Scott Moore an d o n e- h alf to Paul Pinkst on.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ H E R S C H E L P I C K E N S F R A N K S
, P

. J

.

Pla int if fs ' bri ef con cl ude s: "Fo r the re aso ns st at ed, Mo ore ' s app eal is wit hout m er it and thi s Cour t 1 0 sho uld af fi rm his o ust er

by the T ri al J udge."

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