text:
    STATE of Tennessee v. William George SOLLER.
    Supreme Court of Tennessee, at Knoxville.
    May 4, 2005 Session.
    Nov. 30, 2005.

      Richard L. Burnette, Knoxville, Tennessee, and Bryan E. Delius, Sevierville, Tennessee, for the appellant, William George Soller.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General, for the appellee, State of Tennessee.
   Opinion

ADOLPHO A. BIRCH, JR., J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and FRANK F. DROWOTA, III, E. RILEY ANDERSON, and JANICE M. HOLDER, JJ., joined.

We have before us the defendant’s appeal in this case pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, and we granted the application in order to determine whether the trial court had authority, following imposition of an agreed sentence, to grant the defendant judicial diversion. Because judicial diversion was not included in the agreement, we conclude that the trial court lacked authority to alter the plea agreement. Additionally, once the judgments of “guilty” were entered, the trial court was precluded from granting judicial diversion because judicial diversion must be granted, if at all, “without entering a judgment of guilty.” Accordingly, we affirm the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

On May 30, 2000, the Sevier County Grand Jury indicted the defendant, William George Soller, for aggravated burglary and aggravated assault. In a second indictment issued on October 1, 2001, the defendant, was indicted for aggravated assault and resisting arrest. On April 2, 2003, the defendant entered into a plea agreement with the State pursuant to Tennessee Rule of Criminal Procedure 11(e)(1)(C), wherein he agreed to plead guilty to aggravated burglary, one count of aggravated assault, and resisting arrest in exchange for an effective six-year sentence — suspended after service of thirty days in jail, the remainder to be served on community corrections.

At the submission hearing, the trial court discussed the terms of the plea agreement with the defendant. Following this exchange, the defendant’s attorney requested judicial diversion for the defendant. The trial court stated that it would allow the defendant to file a motion for diversion, and the motion would be considered at a later hearing. The State responded that judicial diversion was not part of the plea agreement and that it opposed such request. While the defendant’s attorney agreed that judicial diversion was not part of the plea agreement, he maintained that it was within the purview of the trial court to grant it. Thereafter, the trial court accepted the defendant’s guilty plea and ordered him to serve an effective six-year sentence as a Range I, standard offender in the manner agreed.

On April 8, 2003, the defendant filed a motion for judicial diversion. The trial court did not rule on the motion; instead, on April 30, 2003, it entered judgments in the case without addressing the issue of judicial diversion.

On May 30, 2003, the defendant filed a “Motion for Correction of Judgments,” asserting that the judgments were entered while a motion for judicial diversion was pending. That motion was heard on October 14, 2003, at which time the State reiterated its contention that the plea agreement represented the full agreement between the parties. The State maintained that had judicial diversion been mentioned, it would not have entered into the plea agreement. In response, the defendant acknowledged that there had been no agreement as to judicial diversion, but again contended that it was a matter within the trial court’s discretion. The trial court ultimately denied the request for diversion, ruling that the defendant was statutorily ineligible for judicial diversion pursuant to Tennessee Code Annotated section 40-35-313 because he had been granted diversion in another state.

On appeal, the Court of Criminal Appeals held that because prior diversions in other states do not serve to disqualify a defendant from judicial diversion under Tennessee Code Annotated section 40-35-313, the trial court erred in finding that the defendant was not statutorily eligible for diversion. Nevertheless, relying on Tennessee Rule of Criminal Procedure 11, the intermediate court affirmed the trial court’s judgment denying judicial diversion, holding that the trial court was without authority to grant diversion because it could not alter the terms of the plea agreement.

The defendant appealed to this Court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, insisting that the Court of Criminal Appeals misapplied Tennessee Rule of Criminal Procedure 11 and erroneously limited the authority of the trial court to grant judicial diversion.

II. Standard of Review

The issue before this Court— whether a trial court can grant judicial diversion to a defendant where the parties have entered into a plea agreement pursuant to Tennessee Rule of Criminal Procedure 11(e)(1)(C) that is silent as to judicial diversion — is a question of law. Therefore, our review is de novo with no presumption of correctness. State v. Yoreck, 133 S.W.3d 606, 609 (Tenn.2004).

III. Analysis

The defendant contends that the decision to grant judicial diversion is within the discretion of the trial court and that the State need not consent to such consideration. He also asserts that the trial court had authority to alter the plea agreement because it expressly reserved ruling on the defendant’s motion for judicial diversion. Under the particular facts of this case, the defendant argues that entry of judgment pursuant to the routine administrative process did not deprive the trial court of authority to grant judicial diversion.

The State responds that the plea agreement contained the entire agreement between the parties and that the trial court was without authority to alter the terms of that agreement. Specifically, the State notes that: (1) nothing was reserved in the plea agreement for the court to decide, (2) the agreement was dispositive of all sentencing issues, and (3) judicial diversion had never been contemplated by the parties. If such request had been granted, the defendant would have received an additional benefit that the State had not agreed to and, perhaps, might have opposed. The State claims that although the trial court erred in finding the defendant ineligible for judicial diversion, such error was harmless, because the trial court did not have the authority to make that determination in the first place. See Tenn. R.Crim. P. 52(a).

We must determine whether a trial court may alter a plea agreement entered into pursuant to Tennessee Rule of Criminal Procedure 11(e)(1)(C) by granting judicial diversion, even though the agreement did not mention such an option. In this case, the defendant entered his plea agreement pursuant to Tennessee Rule of Criminal Procedure 11(e)(1)(C), which provides for a. plea of guilty or nolo contendere where the State and the defendant “agree that a specific sentence is the appropriate disposition of the case.” Once such a plea is entered, “the court may accept or reject the agreement pursuant to subdivision (e)(4), or may defer its decision ... until there has been an opportunity to consider the presentence report.” Tenn. R.Crim. P. 11(e)(2). If the trial court accepts the plea, “the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.” Tenn. R.Crim. P. 11(e)(3).

Once the Court decides to accept a plea agreement reached pursuant to Rule 11(e)(1)(C), it must accept the agreement in its entirety, including the agreed upon sentence. See State v. Leath, 977 S.W.2d 132, 135-36 (Tenn.Crim.App.1998). Rule 11 does not contain a provision that would allow a trial court to alter the terms of a plea agreement entered pursuant to subsection (e)(1)(C). Id. at 135. Thus, based on the plain language of the statute, we conclude that the trial court does not have authority to alter the terms of a plea agreement accepted pursuant to Rule 11(e)(1)(C). Rather, the trial court’s choices are either to accept or reject the agreement in its entirety, including the agreed upon sentence.

Regardless of the form of the plea agreement, once the judgment has been entered, the trial court is precluded from granting judicial diversion. A trial court is vested with authority to grant judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. That statute provides,

The court may defer further proceedings against a qualified defendant and place such defendant on probation upon such reasonable conditions as it may require without entering a, judgment of guilty and with the consent of the qualified defendant.

Tenn.Code Ann. § 40-35-313(a)(l)(A)(2003 & Supp.2005) (emphasis added). A “qualified defendant” is one that is found guilty or pleads guilty or nolo contendere to the offense, is not seeking deferral of further proceedings for a sexual offense or a Class A or B felony, and has not previously been convicted of a felony or a Class A misdemeanor. Tenn.Code Ann. § 40-35-313(a)(l)(B)(i)(a)-(e)(2003 & Supp.2005).

In this case, the defendant appears to be statutorily “qualified” for judicial diversion. See id. This Court held in State v. Schindler, 986 S.W.2d 209, 212 (Tenn.1999), that a defendant who had twice been granted diversion in two other states was not statutorily ineligible for diversion in Tennessee. This state’s diversion statute specifically provides that a defendant may be placed on judicial diversion only once under Tennessee Code Annotated section 40-35-313. Thus, the defendant in this case would not be precluded from judicial diversion, because his previous diversion was in another state.

Nevertheless, Tennessee Code Annotated section 40-35-313 clearly provides that judicial diversion be granted “without entering a judgment of guilty.” Tenn.Code Ann. § 40-35-313(a)(1)(A)(2003 <& Supp. 2005); State v. Turco, 108 S.W.3d 244, 246 (Tenn.2003). In Turco, this Court held that the adjudication that the defendant was guilty and entry of judgment precluded the trial court from granting judicial diversion when reducing a sentence pursuant to Tennessee Rule of Criminal Procedure 35(b). Id. at 248. Specifically, this Court held that once a judgment of conviction had been entered pursuant to Tennessee Rule of Criminal Procedure 32(e), a reduction of the sentence pursuant to Rule 35(b) would not remove the adjudication of guilt. Id. “Thus, in order to reduce a sentence of imprisonment (including a suspended sentence) to judicial diversion, the trial court first would be required to vacate the judgment of conviction.” Id. Authority to vacate such a conviction is narrowly prescribed. See id.

The defendant asserts that the present ease differs from Turco because the trial court had expressly reserved the request for judicial diversion for a later hearing and had directed the defendant to file, a petition outlining his request. We do not think this distinction is significant. Although the trial court had stated that it was reserving the issue of judicial diversion, the judgments of conviction were still entered. Consequently, the trial court was precluded from imposing judicial diversion as the statute requires that it is only available “without entering a judgment of guilty.” Tenn.Code Ann. § 40-35-313(a)(l)(A)(2003 & Supp.2005).

IV. Conclusion

We conclude that when a trial court accepts a plea' agreement pursuant to Tennessee Rule of Criminal Procedure 11(e)(1)(C), such agreement represents the full and complete agreement between the parties and cannot be altered by the trial court to include judicial diversion. Thus, the trial court may entertain the issue of judicial diversion only when the court rejects the agreement or when such an option is reflected in the 11(e)(1)(C) plea agreement. Additionally, once a judgment of guilty has been entered, the trial court is precluded from granting judicial diversion.

Accordingly, we affirm the judgment of the Court of Criminal Appeals. It appearing that the defendant, William George Soller, is indigent, costs are taxed to the State of Tennessee, for which execution may issue if necessary.

      . Harmless Error. — No judgment of conviction shall be reversed on appeal except for errors which affirmatively appear to have affected the result of the trial on the merits.

      . The trial court may defer this decision until after considering the presentence report but still must decide whether to accept or reject the agreement in its entirety. See Tenn. R.Crim. P. 11(e)(2).

      .Tennessee Rule of Criminal Procedure 35(b) provides,
      Reduction of Sentence — The trial court may reduce a sentence upon application filed within 120 days after the date the sentence is imposed or probation is revoked. No extensions shall be allowed on the time limitation. No other actions shall toll the running of this time limitation. A motion for reduction of sentence under this rule may be denied by the trial judge without a hearing. If the application is denied, the defendant may appeal but the defendant shall not be entitled to release on bond unless the defendant is already under bond. If the sentence is modified, the state may appeal as otherwise provided by law. A modification can only be as to any sentence the court could have originally imposed.

      . Rule 32(e) provides:
      Judgment. — A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk.

      . In Turco, this court stated the following:
      Nothing in Rule 35(b) authorizes the trial court to vacate the judgment of conviction ("the plea, the verdict or findings, the adjudication and sentence”) in its entirety. Cf. Tenn. R.Crim. P. 33 (articulating procedures for a new trial and authorizing the vacating of the judgment of conviction in appropriate circumstances); Tenn. R.Crim. P. 32(f) (articulating procedure for the withdrawal of a guilty plea and authorizing the vacating of the judgment of conviction in appropriate circumstances). Thus, judicial diversion must be granted "without a judgment of guilt.” In an obvious effort to fulfill this requirement, the trial court purported to vacate the previously entered "judgment of guilt” or conviction. As outlined above, the trial court did not have statutory authority for ordering judicial diversion after an adjudication of guilt or imposition of sentence. Therefore, the order purporting to accomplish this has no effect. ■
      108 S.W.3d at -248 (internal footnote omitted).


source: Caselaw Access Project

author: E. RILEY ANDERSON, J„

license: Public Domain

text:
    STATE of Tennessee v. David SCARBROUGH.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 7, 2005 Session.
    Nov. 30, 2005.

      Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General; and William H. Crabtree, Assistant District Attorney General, for the Appellant, State of Tennessee.
    Leslie M. Jeffress, Knoxville, Tennessee, for the Appellee, David Leon Scarbrough.
   OPINION

E. RILEY ANDERSON, J„

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

We granted this interlocutory appeal prior to the defendant’s retrial for felony murder to address the following issue: whether the defendant may contest his guilt as to the felony underlying the felony murder charge where the felony conviction for aggravated burglary was affirmed on direct appeal but the felony murder conviction was reversed. The trial court found that the defendant was prohibited from challenging his guilt as to the underlying felony of aggravated burglary because that conviction was final. The Court of Criminal Appeals concluded, however, that the doctrine of collateral estoppel does not prevent the defendant from contesting his guilt as to the underlying felony of aggravated burglary during the retrial for the charge of felony murder. After reviewing the record and applicable authority, we conclude that the use of collateral estoppel by the prosecution against the defendant to establish an essential element of the charged offense violates the right to trial by jury under article I, section 6 of the Tennessee Constitution. We further conclude, however, that the prosecution is permitted to introduce evidence of the prior conviction of aggravated burglary if the trial court determines that its probative value is not substantially outweighed by the risk of unfair prejudice to the defendant. Accordingly, we affirm the Court of Criminal Appeals’ judgment, and we remand to the trial court to hold the retrial consistent with the principles in this opinion.

In 1998, in the Criminal Court of Knox County, Tennessee, the defendant, David Scarbrough, was convicted of two counts of felony murder, two counts of theft, and one count of aggravated burglary. The evidence in the record is summarized below.

BACKGROUND

On February 4, 1995, the victims, Lester and Carol Dotts, were shot to death in their home in Knox County, Tennessee. Lester Dotts was shot five times and Carol Dotts was shot seven times with a 9 mm weapon. Their home had been broken into and ransacked.

At the defendant’s trial, Harley Watts, age thirteen, testified that he had been riding around in a car on the night of the murders with Scarbrough and Thomas Gagne. According to Watts, Gagne drove to a “rich” neighborhood, parked at a dead-end street, and said he intended to burglarize one of the homes. Gagne and Scarbrough got out of the car and Watts remained inside. Watts testified that when Gagne and Scarbrough hurriedly returned to the car thirty minutes later, Scarbrough was carrying a 9 mm gun, which he handed to Gagne as they drove away. Watts further testified that Gagne said, “somebody came out on [me] and [I] started shooting,” and that Gagne later threw something out of the car.

Scarbrough told police that he was with Gagne and Watts on the night of the murders and that Gagne, who was in possession of a 9 mm gun, drove to the victims’ neighborhood. Scarbrough stated that he waited behind the victims’ house while Gagne went inside. After fifteen minutes, he heard gunshots and ran back to the car. Gagne also ran back to the car where, according to Scarbrough, he said, “I had to do it.” Defendant Scarbrough later told police that he had been in possession of the 9 mm gun when he got out of the car but that he gave the gun to Gagne.

At trial, Scarbrough testified that he was not at the scene and was not involved in the crimes at all. He claimed that he was pressured to give the statements to police and that he had learned the details of the murders from Watts and from newspapers. The defendant testified that he was with his girlfriend, Kasey Keirsey, on the night of the murders. Keirsey admitted at trial, however, that she had been at a school basketball game with her friends on the night of the murders and that Scarbrough had not been with her at the basketball game.

At the close of the trial, the jury convicted the defendant of two counts of felony murder, two counts of theft, and one count of aggravated burglary. On appeal, the Court of Criminal Appeals reversed the felony murder convictions after concluding that the trial court failed to instruct the jury on the lesser included offense of facilitation of first degree murder. The intermediate court, however, upheld the convictions for theft and aggravated burglary.

The case was remanded to the trial court for retrial on the felony murder charges. Before the retrial, however, the State filed a pretrial motion arguing that it should be permitted to rely on the defendant’s conviction for aggravated burglary to prove the underlying felony for the felony murder at the retrial. The State reasoned that the defendant’s aggravated burglary conviction was final and that the doctrines of “law of the case” and collateral estoppel prohibited the defendant from arguing that he did not commit the offense of aggravated burglary. The defendant disagreed, arguing that the State’s position would violate his constitutional rights to a fair trial and a trial by jury.

After the completion of the argument, the trial court applied the “law of the case” doctrine and concluded that the State could rely on (and the defendant could not challenge) the final conviction for aggravated burglary in the retrial for felony murder. An interlocutory appeal was requested by the defendant, which was granted by both the trial court and the Court of Criminal Appeals. The Court of Criminal Appeals then held that the “law of the case” doctrine was inapplicable and that the collateral estoppel doctrine cannot be applied against a defendant. The intermediate court explained that the “defendant’s constitutional right to a jury trial would be violated by the-trial court’s order which ... prevents him presenting proof which would question the burglary conviction.”

We granted the State’s application to this Court for further interlocutory review.

ANALYSIS

Collateral Estoppel

We begin by summarizing the parties’ arguments with respect to the collateral estoppel issue. In arguing that the defendant is prohibited from challenging his guilt as to aggravated burglary during the retrial for felony murder, the State makes two main points: first, that applying collateral estoppel does not violate the defendant’s constitutional right to a jury trial because he was convicted of aggravated burglary by a jury and the conviction is final; and second, that applying collateral estoppel to prevent the defendant from challenging the aggravated burglary conviction is in the interest of judicial efficiency.

To support these arguments, the State urges the Court to adopt a balancing analysis which would consider a number of factors in determining whether collateral estoppel may be applied in a given ease. The suggested factors include an analysis of whether the issue and the defendant are identical to those in the prior proceeding, whether the defendant had a full and fair opportunity to actually litigate the issue, whether the prior charge was a felony, whether the sentence was sufficiently serious to provide an incentive to appeal and whether the prosecutor brought separate prosecutions, for strategic reasons or in bad faith. See Richard B. Kennelly, Jr., Precluding the Accused; Offensive Collateral Estoppel in Criminal Cases, 80 Va. L.Rev. 1379,1423 (1994).

In response, the defendant contends that applying collateral estoppel principles would violate his constitutional rights to a fair trial and a jury trial in his retrial for felony murder. The defendant argues that the same jury must consider all the evidence in the same proceeding to find the facts, to determine whether the essential elements of the charged offense have been proven, and to determine guilt or innocence.

We begin our analysis by reviewing the principles of collateral estoppel. This Court has said that “[o]nce an issue has been actually or necessarily determined by a court of competent jurisdiction, the doctrine of collateral estoppel renders that determination conclusive on the parties and their privies in subsequent litigation, even when the claims or causes of action are different.” Gibson v. Trant, 58 S.W.3d 103, 113 (Tenn.2001) (quoting State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178-79 (Tenn.Ct.App.2000)). In other words, an issue finally determined in a prior proceeding must be accepted as established in a later proceeding. The doctrine of collateral estoppel “promotes finality, conserves judicial resources, and prevents inconsistent decisions.” Gibson, 58 S.W.3d at 113.

The doctrine of collateral estop-pel, which has its origin in civil cases, applies only when “the issue involved in the case under consideration has already been litigated in a prior suit between the same parties, even though based upon a different cause of action, if the determination of such issue in the former action was necessary to the judgment.” Dickerson v. Godfrey, 825 S.W.2d 692, 694 (Tenn.1992) (quoting Home Ins. Co. v. Leinart, 698 S.W.2d 335, 336 (Tenn.1985)). The party who seeks to bar litigation of an issue by invoking collateral estoppel “has the burden of proving that the issue was, in fact, determined in a prior suit between the same parties and that the issue’s determination was necessary to the judgment.” Dickerson, 825 S.W.2d at 695.

The issue of whether collateral estoppel may be asserted by the prosecution against a defendant in a criminal case— often referred to as affirmative or offensive collateral estoppel — is a question of first impression in Tennessee. The question is particularly complex because it is interwoven with a defendant’s constitutional right to a trial by jury. Accordingly, we will next turn to decisions from other jurisdictions for guidance.

Federal Courts

The United States Supreme Court has upheld the use of defensive collateral es-toppel in a criminal case. In Ashe v. Swenson, 397 U.S. 436, 443-47, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Court specifically said that a defendant in a criminal case may assert collateral estoppel by relying on an acquittal in a first prosecution to bar the litigation of those facts in a later prosecution for a different offense. The Court reasoned that a defendant’s reliance on the collateral estoppel doctrine in such circumstances “is embodied in the Fifth Amendment guarantee against double jeopardy.” Id. at 445, 90 S.Ct. 1189.

The Supreme Court has further indicated, however, that offensive collateral estop-pel by the prosecution in a criminal case is not appropriate: “[A] conviction in the first prosecution would not excuse the Government from proving the same facts a second time.” United States v. Dixon, 509 U.S. 688, 710 n. 15, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (emphasis added). Although the statement in Dixon was dicta, it illustrates that the Supreme Court has upheld the use of defensive collateral es-toppel in criminal cases but has never upheld the use of offensive collateral estop-pel. See also Ashe, 397 U.S. at 464-65, 90 S.Ct. 1189 (Burger, C.J., dissenting) (stating that “[if the defendant] had been convicted at the first trial, presumably no court would then hold that he was thereby foreclosed from litigating the identification issue at the second trial.”).

Some federal appellate courts have likewise indicated that the prosecution may not invoke offensive collateral estoppel against a defendant in a criminal case. In United States v. Pelullo, 14 F.3d 881, 889 (3d Cir.1994), for instance, the court emphasized the defendant’s right to trial by jury in holding that a prosecutor could not rely on a defendant’s prior conviction for wire fraud to prevent re-litigation of the predicate offense during a retrial for a racketeering offense that had been reversed on appeal. The court said:

The application of collateral estoppel against a defendant constitutes an invasion of the fact finding and ultimate decisional functions of the jury. If an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and de-cisional responsibilities is irretrievably compromised. It follows in such circumstances that the defendant’s jury right will have been, commensurately, abridged.

Id. at 892 (quoting State v. Ingenito, 87 N.J. 204, 432 A.2d 912, 916 (1981)); see also United States v. Gallardo-Mendez, 150 F.3d 1240, 1244 (10th Cir.1998) (emphasizing defendant’s liberty interests in rejecting offensive collateral estoppel).

In addition, federal courts have emphasized that offensive collateral estoppel in a criminal case may not be justified solely on the often-asserted basis of judicial efficiency. The Third Circuit observed, for instance, that “the liberty interest of a criminal defendant takes priority over the usual concerns for efficient judicial administration so often found in civil proceedings.” Pelullo, 14 F.3d at 893. The Tenth Circuit has likewise explained that “while ‘wise’ public policy and judicial efficiency’ may be sufficient reasons to apply collateral estop-pel in civil cases, they do not have the same weight and value in criminal cases.” Gallardo-Mendez, 150 F.3d at 1244; see also United States v. Harnage, 976 F.2d 633, 636 (11th Cir.1992) (rejecting argument that judicial economy requires the use of collateral estoppel against criminal defendants).

In contrast, offensive collateral estoppel against a defendant in a criminal case was upheld by the Eighth Circuit in Hernandez-Uribe v. United States, 515 F.2d 20 (8th Cir.1975). In stating that the interests of judicial efficiency supported the use of collateral estoppel against a defendant where a prior conviction was based on a jury verdict or a guilty plea, the court relied in part on a Ninth Circuit decision in which collateral estoppel was invoked against a defendant in a criminal case. Id. at 21-22 (citing Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir.1968)). The Ninth Circuit has since changed its course, however, and has accepted the government’s concession that offensive collateral estoppel may not be used against a defendant in a criminal case. United States v. Smith-Baltiher, 424 F.3d 913, 920 (9th Cir.2005); see also United States v. Arnett, 353 F.3d 765 (9th Cir.2003) (same). Thus, the decision in Hemandez-Uribe appears to reflect a decidedly minority view in the federal appellate courts.

State Courts

Several well-reasoned state court decisions have likewise rejected the use of collateral estoppel against a defendant in a criminal case.

In Ingénito, the Supreme Court of New Jersey held that collateral estoppel was improper where the prosecution used the defendant’s conviction for unlawful transfer of a weapon to establish an essential element in a later prosecution for possession of a firearm by a convicted felon. In concluding that the defendant’s right to a jury trial had been violated, the court reasoned that “[i]f an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably compromised.” 432 A.2d at 916. Moreover, the court explained that offensive collateral estoppel “constitutes a strong, perhaps irresistible, gravitational pull towards a guilty verdict, which is utterly inconsistent with the requirement that a jury remain free and untrammeled in its deliberations.” Id. at 918-19. As a result, the court rejected the argument that the defendant’s right to a jury trial was preserved simply because there had been a jury in the prior proceeding:

[T]he right to a jury in a criminal case ordinarily includes the right to have the same trier of fact decide all of the elements of the charged offense. Unless the same jury is permitted to deliberate meaningfully upon all of the issues that are crucial to a verdict of guilt or innocence of the particular crime charged, a defendant will not have secured the jury right contemplated by the Constitution.

Id. at 919 (emphasis added).

Likewise, in a case that strikingly parallels the one before us, the Supreme Court of Michigan, relying on Ingénito, held that a defendant’s right to a jury trial prohibited collateral estoppel from being used to establish the underlying felony in the retrial of a felony murder charge. People v. Goss, 446 Mich. 587, 521 N.W.2d 312, 316 (1994). After noting that the “jury’s decision regarding the predicate offense does not preclude it from reaching a different conclusion in the context of the compound offense,” the court explained:

Because the first jury’s verdict on the armed-robbery charge would not have precluded the jury from considering afresh the armed-robbery element of the felony-murder charge, the first jury’s verdict on the armed-robbery charge does not estop [the defendant] from re-litigation, or preclude the second jury from considering afresh, the armed-robbery element of the felony-murder charge. Estopping [the defendant] from contesting the armed-robbery would prevent the second jury from making its own independent evaluation of the armed-robbery element of felony murder, and, therefore, would be the equivalent of partially directing a verdict against him.

Id. at 316.

At least one California decision has likewise refused to allow the prosecution to invoke collateral estoppel in a criminal case. Gutierrez v. Superior Court, 24 Cal.App.4th 153, 29 Cal.Rptr.2d 376 (1994). The court concluded that the defendant’s interests in presenting a defense to the jury on the issues of identity and intent “far outweigh any interest in judicial economy.” Id. at 386; see also State v. Stiefel, 256 So.2d 581, 585 (Fla.App.1972) (rejecting offensive collateral estoppel after stating that due process principles “assure an accused a jury trial on all issues relating to each element of a given criminal charge”). The court in Gutierrez also distinguished and questioned the validity of People v. Ford, 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132 (1966), in which the prosecution had been allowed to rely on collateral estoppel in a criminal case. Gutierrez, 29 Cal.Rptr.2d at 384-86.

Finally, in State v. Johnson, 134 N.H. 498, 594 A.2d 1288 (1991), the Supreme Court of New Hampshire adopted a balancing approach, similar to that advanced by the State in our case, in which the prosecution’s interests in relying on collateral estoppel must be weighed against the defendant’s interests in having a jury consider all the elements of a charge. In that case, the court held that the prosecution could not bar the defendant from challenging an essential element of his conviction for operating a motor vehicle on a revoked license when that offense was used in a later trial for perjury. Although adopting the balancing analysis instead of a bright-line rule, the court recognized that “policy considerations generally weigh in the defendant’s favor.” Id. at 1292.

Application to Tennessee Law

The concern for a defendant’s right to a trial by jury emphasized in the foregoing decisions is entirely consistent with Tennessee law. “The right to trial by jury is a fundamental right preserved by article I, § 6 of the Tennessee Constitution and has ‘special resonance in criminal matters.’ ” State v. Cleveland, 959 S.W.2d 548, 551 (Tenn.1997) (quoting Ricketts v. Carter, 918 S.W.2d 419, 424 (Tenn.1996)). The right to trial by jury includes the right to a unanimous verdict. Cleveland, 959 S.W.2d at 551. Moreover, it “includes the right to have every fact tried and determined by twelve jurors and to have all issues of fact submitted to the same jury at the same time.” Id.; see also State v. Bobo, 814 S.W.2d 353, 356 (Tenn.1991).

In applying these principles, we have held that the right to trial by a jury of twelve must be “preserved inviolate,” Bobo, 814 S.W.2d at 357, and that a violation of the fundamental right to trial by jury “defies harmless error analysis.” Cleveland, 959 S.W.2d at 552. Indeed, we have described such an error as a “defect in the trial mechanism” that prejudices not only the accused but also the administration of justice. Id.; see also Bobo, 814 S.W.2d at 356.

Given these fundamental protections under article I, section 6 of the Tennessee Constitution, we agree with those federal and state decisions that have rejected the prosecution’s use of offensive collateral estoppel to establish an essential element of a charged offense in a criminal case. As noted, we have consistently emphasized that the right to a trial by jury under article I, section 6 “includes the right to have every fact tried and determined by twelve jurors and to have all issues of fact submitted to the same jury at the same time.” Cleveland, 959 S.W.2d at 551 (emphasis added). Accordingly, instructing a jury in a retrial that it must accept as proven an essential element of the charged offense based on facts determined by a prior jury in a prior proceeding is patently incompatible with these fundamental principles.

In reaching this conclusion, we find no persuasive support for subjecting the right to jury trial to a balancing test as proposed by State. First, a balancing analysis is inconsistent with the requirement that article I, section 6 is to be “preserved inviolate” and that violations of this fundamental right are not subject to harmless error scrutiny. Bobo, 814 S.W.2d at 356.

Second, the efficiency and judicial economy interests cited by the State in support of a balancing approach are illusory when applied to the circumstances of this case. The charge of felony murder requires the prosecution to establish “[a] killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy.” Tenn.Code Ann. § 39-13-202(a)(2) (2003). In determining whether a killing occurred in the perpetration of an underlying felony, the jury may consider facts relating to time, place, causation, and continuity of actions. State v. Pierce, 23 S.W.3d 289, 294 (Tenn.2000); see also State v. Hinton, 42 S.W.3d 113, 119 (Tenn.Crim.App.2000).. In the present case, the State will still have to present evidence of the aggravated burglary offense during the retrial to establish the elements of the felony murder charge. As a result, the use of collateral estoppel would not achieve efficiency or judicial economy and would serve only to imperil the defendant’s right to a trial by jury in this proceeding.

In short, we hold that the prosecution may not invoke the doctrine of offensive collateral estoppel to establish an essential element of a charge in a criminal case.

Use of Conviction as Evidence

We now turn to the State’s alternative argument that it should be permitted to use the defendant’s aggravated burglary final conviction as evidence in the retrial for felony murder, even if the collateral estoppel doctrine is inapplicable. The defendant argues that allowing evidence of the aggravated burglary conviction is improper and tantamount to invoking collateral estoppel in a different guise.

In Ingénito, the Supreme Court of New Jersey rejected the prosecutor’s claim that the defendant’s prior conviction was admissible as evidence of an element of a charged offense. 432 A.2d at 920. The court reasoned that the prior conviction would not be “merely evidential” and that the technique would be “indistinguishable from collateral estoppel.” Id. The court further explained:

Although the defendant may have been theoretically free to introduce evidence to the contrary, that did not overcome the preclusive and conclusive evidential effects of the prior conviction.... The effect of the prosecution’s submission of the prior conviction in this case was to create a near-mandatory presumption in the minds of the jurors as to the guilt of the defendant_The normal jury process, whereby evidence is admitted and the jury is enjoined to draw inferences as to each element of the offense, is vitiated where a prior conviction constitutes the sole evidence proffered by the prosecution.

Id. (citations omitted).

In Pelullo, however, the Third Circuit Court of Appeals concluded that evidence of a defendant’s prior conviction may be admissible as evidence of an element of the charged offense if the trial court determines that its probative value is not substantially outweighed by the risk of unfair prejudice. 14 F.3d at 888. The court explained:

Admitting a judgment of conviction into evidence as one of the many pieces of evidence to prove a case is very different from according a judgment collateral es-toppel effect. As an ordinary piece of evidence, a judgment is subject to evaluation by the fact finder, who can accept or reject such evidence as it deems appropriate. On the other hand, as collateral estoppel a judgment will have the effect of establishing as a matter of law facts determined in the prior proceeding. ...

Id. Accordingly, the court concluded that the trial court must weigh the probative value of the evidence for the prosecution, including “the relatively slight burden for the government to reprove the facts upon which the judgment of conviction was based,” and determine whether the probative value is substantially outweighed by the risk of unfair prejudice to the defendant. Id. (citing Fed.R.Evid. 403).

In considering these approaches, we note that the Third Circuit’s approach in Pelullo is consistent with our Tennessee Rules of Evidence. For instance, Rule 803 provides that the following evidence is not excluded by the general rule that excludes hearsay statements:

Evidence of a final judgment adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year to prove any fact essential to sustain the judgment, but not including, when offered by the prosecution in a criminal case for purposes other than impeachment, judgments against persons other than the accused.

Tenn. R. Evid. 803(22). The Advisory Commission Comments states that Rule 803(22) “adopts the federal approach admitting felony conviction records to prove underlying facts necessary to the judgment.” Moreover, the Advisory Commission specifically noted that “a jury’s finding beyond a reasonable doubt that a serious crime was committed should be admitted in a later civil or criminal trial to prove the underlying facts necessary to the judgment of conviction.” Id.

We think this approach strikes an appropriate balance between the interests of both the State and the defendant. Allowing the prosecution to use a final conviction as evidence in the trial is consistent with Rule 803(22), as well as with the reality that the conviction is final and may have probative value. Because the conviction is simply evidence, however, and is not entitled to preclusive effect under collateral estoppel, the defendant may contest the conviction by introducing contrary evidence and argument. See Pelullo, 14 F.3d at 888.

In applying Rulé 803(22), howpver, we emphasize that the trial court must find that the probative value of the prior conviction is not substantially outweighed by the risk of unfair prejudice. Tenn. R. Evid. 403; see also Pelullo, 14 F.3d at 888. In this regard, a leading treatise on Tennessee evidence states:

The use of a prior criminal conviction has obvious prejudicial dangers. The jury will learn of the prior offense and may give it too much attention. They may use it as proof of bad character, and then use the bad character to infer liability [or guilt] in the instant case. To avoid this possibility, the court may invoke Rule 403 to exclude the proof of conviction. Counsel may offer to stipulate the facts underlying the conviction in order to avoid having certain details, of the prior conviction revealed to the jury-

Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of Evidence, § 803(22) at 583-84 (3rd ed.1995).

Accordingly, the admission of a prior conviction under Rule 803(22) protects the interests of article I, section 6 of the Tennessee Constitution because the same jury will be permitted to consider the evidence, to make findings of fact, and to make determinations of guilt or innocence in the same proceeding. Before admitting such evidence, however, the trial court must apply the above principles and find that the probative value of the prior offense is not substantially outweighed by the risk of unfair prejudice.

CONCLUSION

After reviewing the record and applicable authority, we conclude that the use of collateral estoppel by the prosecution against the defendant to establish an essential element of the charged offense violates the right to trial by jury under article I, section 6 of the Tennessee Constitution. We further conclude, however, that the prosecution is permitted to introduce evidence of the prior conviction if the trial court determines that its probative value is not substantially outweighed by the risk of unfair prejudice to the defendant. Accordingly, we affirm the Court of Criminal Appeals’ judgment, and we remand to the trial court to hold the retrial consistent with the principles in this opinion. Costs of the appeal are taxed to the State.

      . The evidence from the defendant’s trial is summarized from the Court of Criminal Appeals' decision.

      . Although the State has not raised the issue, we agree with the Court of Criminal Appeals' holding that the "law of the case” doctrine is not applicable. As that court correctly noted, the "law of the case permits the foreclosing of argument on an issue that was previously decided in an appeal of the same case.” See State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn.2000). In the present case, however, the retrial is not for aggravated burglary, which was affirmed on appeal; instead, the retrial is for felony murder, which was reversed on appeal. In short, the issue of whether the conviction for aggravated burglary may be used in the retrial for felony murder has never been decided.

      . In State v. Flake, 114 S.W.3d 487, 507 (Tenn.2003), the State argued that collateral estoppel prevented the defendant from seeking the suppression of evidence where the motion had been denied in a separate proceeding involving the same parties and the same evidence. Although the Court stated that "collateral estoppel likely could be applied in this circumstance," we nonetheless reviewed the issue on the merits. Id. In sum, the issue in Flake did not involve the State’s use of collateral estoppel to prevent the re-litigation of the essential elements of a charged offense, and the court's statement was dicta that is in no way controlling in this case.

      . The Court of Criminal Appeals did not fully address this issue. Instead, the intermediate court held that the prosecution’s use of the prior conviction was limited to impeachment of the accused.


author: WILLIAM M. BARKER, C.J.,

text:
    Tommy D. LANIUS v. NASHVILLE ELECTRIC SERVICE.
    Supreme Court of Tennessee, at Nashville.
    Oct. 5, 2005 Session.
    Dec. 2, 2005.

      C. Dewey Branstetter Jr. and Eugene W. Ward, Nashville, Tennessee, for the appellant, Nashville Electric Service.
    Arthur E. McClellan, Gallatin, Tennessee, for the appellee, Tommy D. Lanius.
   OPINION

WILLIAM M. BARKER, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ. joined.

Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, we accepted this interlocutory appeal from the Chancery Court of Sumner County in which the defendant, Nashville Electric Service, seeks dismissal or, in the alternative, transfer of this workers’ compensation case to Davidson County, its county of residence, on the grounds, inter alia, of sovereign immunity and the common law local venue rule. We hold that the defendant is subject to the venue provisions of the Workers’ Compensation Act because it voluntarily entered into the workers’ compensation system pursuant to an express grant of authority from the General Assembly, which thus effected a waiver of its sovereign immunity. We further hold that the specific venue provisions of the Workers’ Compensation Act control venue and apply to the exclusion of the common law local venue rule. Accordingly, the defendant may be sued in the plaintiffs county of residence, Sumner County.

FACTUAL BACKGROUND

The parties to this case call upon this Court to determine the trial court of jurisdiction and the proper place of venue in a workers’ compensation suit involving, as the defendant, a municipal corporation, which enjoys sovereign immunity unless waived. On March 17, 2004, the plaintiff, Tommy D. Lanius, filed a complaint in the chancery court of his county of residence— Sumner County, Tennessee — pursuant to the Tennessee Workers’ Compensation Act and its venue provisions, against his employer, the defendant, Nashville Electric Service (NES). NES subsequently filed a motion to transfer the case to Davidson County, Tennessee, its county of residence, on two principal grounds: (1) that NES, as a municipal governmental entity enjoying sovereign immunity, cannot be sued absent its consent or contrary to any terms that condition its consent and (2) that any action against a municipal entity is a local action, as opposed to a transitory action, thus giving subject matter jurisdiction only to the courts of the entity’s county of residence.

The Chancery Court for Sumner County, Tennessee, denied NES’s motion to dismiss or to transfer the case to Davidson County. It later granted NES’s application for interlocutory appeal. This Court granted the application to hear this appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.

We hold that the court of jurisdiction and of proper venue in this case is dictated by Tennessee’s Workers’ Compensation Act, which, when voluntarily entered into by NES pursuant to an express grant of authority by the General Assembly, constituted a waiver of its sovereign immunity and effected its consent to be sued “in the circuit, criminal, or chancery court in the county in which the employee resides.” TenmCode Ann. § 50-6-225(a)(2) (Supp. 2004). Furthermore, we hold that venue is controlled by the specific venue provisions of the Workers’ Compensation Act to the exclusion of the common law local venue rule. Accordingly, we affirm the chancery court’s denial of NES’s motion to dismiss the complaint for lack of jurisdiction or improper venue.

STANDARD OF REVIEW

As with all questions of law, our review of this Tennessee Rule of Civil Proeeedure 12 motion to dismiss for improper venue is conducted “under a pure de novo standard ..., according no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

ANALYSIS

In Five Star Express, Inc. v. Davis, 866 S.W.2d 944, 950 (Tenn.1993), we held that “venue in worker’s [sic] compensation actions is to be determined solely by the workers’ compensation venue statute— § 50-6-225(c)(l) — and any other authority indicating otherwise is hereby expressly overruled.” Section 50-6-225(e)(l) of the Tennessee Code of 1993, which was the venue provision of the Workers’ Compensation Act at the time Five Star was announced, provided that “[t]he party filing the petition may ... file ... an original petition in either the circuit, criminal or chancery court of [1] the county in which petitioner resides or [2] in which the alleged accident happens” (emphasis added). In the present dispute, the plaintiff, Tommy Lanius, filed his lawsuit in the chancery court of his undisputed county of residence, Sumner County, pursuant to the first of the two venue options provided for in this statute.

NES argues that, as a municipal entity, it enjoys sovereign immunity and, as a consequence, our holding in Five Star has no applicability here and therefore the Chancery Court of Sumner County has no jurisdiction to hear Mr. Lanius’s case. Further, it argues that because this is an action against a municipal entity, the common law local venue rule applies and dictates that only courts of its county of residence have subject matter jurisdiction. In the alternative, NES claims that if the Chancery Court of Sumner County does have jurisdiction to hear this case, the same court is not the proper venue because NES has not consented to be sued anywhere but Davidson County, its county of residence.

In Tennessee, municipal entities, whether engaged in governmental or proprietary functions, enjoy sovereign immunity. Tenn.Code Ann. § 29-20-201(a) (2005); Crowe v. John W. Harton Mem’l Hosp., 579 S.W.2d 888 (Tenn.Ct.App.1979) (upholding the constitutionality of Tennessee Code Annotated section 23-3307, now section 29-20-201). This doctrine provides that a sovereign governmental entity cannot be sued in the courts of its own state unless it consents. Williams v. State, 139 S.W.3d 308, 311 (Tenn.Ct.App.2004). The General Assembly, pursuant to Article I, Section 17 of the Tennessee Constitution, is clothed with the authority to waive sovereign immunity, and governmental entities themselves may prescribe the terms and conditions under which they can be sued, including when and in what fora they can be sued. Cruse v. City of Columbia, 922 S.W.2d 492, 495 (Tenn.1996). There appears to be no dispute in this case that NES is a municipal entity created pursuant to both state law and the charter of the government of Nashville and Davidson County, Tennessee, and is thus immune from suit unless (1) it agreed to be amenable to suit or (2) the General Assembly allowed, by law, NES to be sued.

Although governmental entities, such as NES, are expressly exempt from the Workers’ Compensation Act, Tennessee Code Annotated § 50-6-106(5) (1999), this same statute also provides that counties “may accept the provisions of this chapter as to any department or division ... by filing written notice thereof ... at least thirty (30) days before the happening of any accident or death.” NES agreed to provide workers’ compensation benefits to its employees by filing the required notice, in 1966, with the Tennessee Department of Labor. At issue, then, is whether NES’s voluntary agreement to enter into the workers’ compensation system constituted acceptance of the Act’s venue provisions, Tennessee Code Annotated section 50-6-225(a)(2), and thus effected a waiver of its sovereign immunity.

We hold that by agreeing to provide benefits to its employees under Tennessee’s Workers’ Compensation Act, NES waived its sovereign immunity and consented to be sued in fora dictated by the Act’s venue provisions. Although not necessarily binding upon us, the holding and analysis of Roettger v. Metropolitan Government of Nashville and Davidson County, 991 S.W.2d 244 (Tenn. Special Workers’ Comp.App. Panel 1999), is instructive. At issue in Roettger was whether Tennessee’s savings statute, Tennessee Code Annotated section 28-1-105, could be employed by a plaintiff to extend the limitations period of a lawsuit against a governmental entity that consented to be covered by the Workers’ Compensation Act. The Panel held that it could not. In support of its holding, the Panel stated:

We reject the appellant’s contention that by voluntarily opting to accept the provisions of the Workers’ Compensation Act § 50-6-106(5), that the employer has also voluntarily submitted to the savings statute, which is a separate statute. T.C.A. § 5[0] — 6—106(5), which authorizes a municipality to accept the provisions of the Workers’ Compensation Act, does not authorize anything more.

991 S.W.2d at 245. It seems apparent from the Panel’s holding and reasoning in Roettger that had the savings statute at issue been incorporated into the Workers’ Compensation Act, it would have applied against the defendant governmental entity. According to the Panel, the savings statute did not apply only because it was separate from the Act that the governmental entity in Roettger had voluntarily entered into.

We agree with the holding and reasoning of the Panel in Roettger. The venue provisions relied on in this case by the plaintiff constitute a part of the Workers’ Compensation Act to which NES voluntarily submitted; therefore, those venue provisions apply to NES. Furthermore, we find no authority for the proposition that NES can pick and choose which provisions of the Workers’ Compensation Act it will and will not adopt. Indeed, the language of Tennessee Code Annotated section 50-6-106(5) (1999) provides that a municipal entity “may accept the provisions of this chapter”; it does not expressly allow the entity to adopt some of the Workers’ Compensation Act's provisions and refuse others. And although it is true that “[general procedural statutes in which the State is not specifically named, and which, if applied, would operate to restrict the state’s sovereignty, cannot be invoked against the state[,]” Auto. Sales Co. v. Johnson, 174 Tenn. 38,122 S.W.2d 458, 455 (1938) (quoting Quinton v. Bd. of Claims, 165 Tenn. 201, 54 S.W.2d 953, 957 (1952)), section 50-6-105(5) expressly authorizes governmental entities, if they wish, to enter into the workers’ compensation system. Thus, when NES voluntarily entered into the workers’ compensation system pursuant to a grant of authority from the General Assembly to accept all or none of the provisions of the Workers’ Compensation Act, it subjected itself to the Act’s venue provisions and thus made itself amenable to suit wherever those provisions dictate.

Neither do we accept the plaintiffs characterization of Keeble v. London Utilities, 212 Tenn. 483, 370 S.W.2d 531 (1963), to the effect that “a judgment against a municipal corporation in a county other than its county of location is ... void on its face.” Although it is generally true that “[ajctions against municipalities are local actions which must be brought in the county in which the municipality is located,” Keeble, 370 S.W.2d at 534, it is also true that “[ajctions may be made by statute either transitory or local.” Mayor of Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 405 (1905). Indeed, numerous statutes exist that subject municipal entities in Tennessee to suit outside their own counties. For example, the Governmental Tort Liability Act’s venue provision, Tennessee Code Annotated section 29-20-308 (2000), provides for an alternative venue in the county in which the tort occurred. In real property actions involving the State of Tennessee or any of its agencies, venue is proper in any county in which the property is located. Tenn.Code Ann. § 20-4-107 (1994). Grievance actions by state inmates must be brought in the county in which the correctional facility is located. Tenn.Code Ann. § 41-21-803 (2003). Even in the absence of a statute otherwise, the local venue rule in cases involving municipal entities is not absolute. See Baker v. Hughes, 532 S.W.2d 223, 224 (Tenn.1975).

We hold that the venue provisions of Tennessee’s Workers’ Compensation Act, Tennessee Code Annotated section 50-6-225(a)(2) (2004), apply to the exclusion of any common law local venue rule in this case. By voluntarily accepting the Tennessee’s Workers’ Compensation Act, NES subjected itself to the Act’s venue provisions; therefore, those venue provisions apply to NES and negate the common law rule.

We also reject NES’s argument that venue in Sumner County is improper because the venue provisions of the Workers’ Compensation Act in 1966, at the time NES voluntarily accepted its provisions, would not have allowed this plaintiff to sue in his county of residence. While it is true that the venue provisions changed after NES entered into the workers’ compensation system, NES neglected, as it is authorized by statute if it so wishes, to “withdraw [its] acceptance [of the Workers’ Compensation Act] ... by giving ... notice of the withdrawal” after the venue provisions changed. Tenn.Code Ann. § 50-6-106(5). Absent express withdrawal of its acceptance of the Act, NES was subject to all its provisions and is therefore amenable to suit in any venue dictated by the Act as modified by the General Assembly.

CONCLUSION

The judgment of the chancery court is affirmed, and this action is remanded to the Chancery Court for Sumner County for the implementation of this judgment and any further proceedings that may be necessary.

The costs of this appeal are taxed to the defendant-appellant, Nashville Electric Service and its sureties, for which execution may issue if necessary.

      . Tennessee Code Annotated section 50-6-225(a)(2) (Supp.2004) states
      [i]n the event the parties are unable to reach an agreement at the benefit review conference as to all issues related to the claim, either party may file a civil action as provided in § 50-6-203 in the circuit or chancery court in the county in which the employee resides or in which the alleged injury occurred.
      For clarity, we note that the subsections of section 50-6-225 have been renumbered in the 2005 amendment to the statute.

      . Now Tennessee Code Annotated section 50-6-225(a)(2) (2005).

      . Article I, Section 17 of the Tennessee Constitution states "[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.”

      . Now Tennessee Code Annotated § 50-6-106(6) (2005).

      . Formerly, the Act’s venue provisions allowed suit in the plaintiff’s county of residence only if the defendant had an office or agent in that county. Tenn.Code Ann. § 50-1018 (1966). NES never has had an office in Sumner County.


author: HOLLY M. KIRBY, J„

text:
    Vernon McBRIDE, Jr., Individually and as Co-Executor of the Last Will and Testament of Vernon McBride, Sr. and as Attorney in Fact for Beulah Kate McBride, and Vernon McBride, III, Co-Executor of the Last Will and Testament of Vernon McBride, Sr. v. Barbara Kate SUMROW.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 19, 2005 Session.
    June 15, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 17, 2005.
    J. Thomas Caldwell, Ripley, Tennessee, for plaintiffs/appellants Vernon McBride, Jr., and Vernon McBride, III.

      Douglas W. Wilkerson and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for defendant/appellee Kate Sumrow.
   OPINION

HOLLY M. KIRBY, J„

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This is a will construction case. The decedent died testate in May 2002. In his will, he left certain properties in trust for the benefit of his spouse during her lifetime. The will detailed how the properties were to be distributed in the event his spouse predeceased him. The will did not state how the remainder interest in the properties was to be distributed in the event his spouse survived him. The decedent was survived by his spouse. The co-executors filed a declaratory judgment action to interpret the will. The trial court ruled that the decedent died partially intestate, with the remainder interest in the specific properties passing through the laws of intestate succession. The co-executors of the trust appealed, arguing that the there was an error in the drafting of the will and that the decedent would have wanted the properties to be distributed in the same manner, regardless of whether his spouse predeceased him. We affirm, finding that, under these circumstances, the will cannot be reformed and the property must pass through the laws of intestate succession.

Vernon McBride, Sr. (“Decedent”) died testate on May 10, 2002. He was survived by his wife, Beulah Kate McBride, his son Vernon McBride, Jr., (“Vernon, Jr.”) and a daughter, Barbara Kate Sumrow. The decedent’s will was admitted to probate on May 17, 2002. On the same day, Vernon, Jr. and Vernon McBride, III (‘Vernon, III”) were named co-executors of the estate. The will created the Vernon McBride, Sr. Unified Credit Trust and named Vernon McBride, Jr. trastee.

On November 21, 2002, Vernon, Jr., acting as co-executor and attorney in fact for Beulah Kate McBride, and Vernon, III, acting as co-executor, (“Co-executors”) filed a declaratory judgment action in the Lauderdale County Chancery Court, asking the court for a declaratory judgment interpreting certain provisions of the Decedent’s will. The provisions of the will at issue state as follows:

ITEM III
VERNON McBRIDE, SR. UNIFIED CREDIT TRUST
If my wife, BEULAH KATE STEWART McBRIDE, shall survive me, I bequeath to my Trustee, in Trust, a sum equal to the maximum amount that can pass estate or inheritance tax free under the applicable Sections of the Internal Revenue Code or as amended, as adjusted by the applicable Code Sections 6018(a)(3), 6018(A)(4), and for which no deduction is allowed under Sections 2055 and 2056 for the Internal Revenue Code or as amended and taking into account the state death tax credit.
The beneficiary of the VERNON McBRIDE, SR. UNIFIED CREDIT TRUST is my wife, BEULAH KATE STEWART McBRIDE, who shall receive, on an annual basis or more frequent basis, all the income from the VERNON McBRIDE, SR. UNIFIED CREDIT TRUST
This trust should be funded with the Plummer Property ... the Kee Property ... the Turner Property ... and the Brooks Place property.... In the event my spouse predeceases me, I leave to my daughter, BARBARA KATE SUM-ROW, a tract of land of approximately thirty-six (36) acres, more or less, which is the remainder of the property known as the Brooks Place. This tract adjoins a four (4) acre tract, where her house is located, which I previously deeded to her and taking into consideration that the fact that I had earlier deeded my two-thirds (2/3) interest in my home place on Ashbury Road to my son, VERNON McBRIDE, JR. In the event my spouse predeceases me, I leave to VERNON McBRIDE, JR., the Plummer property of approximately eighty-five (85) acres, the Kee Property as to my undivided one-half (½) interest of approximately one-hundred (100) acres and the Turner Property of approximately one-hundred-fifty-six (156) acres.
In the event my spouse predeceases me, the balance of the Trust assets shall go my to children, VERNON McBRIDE, JR. of Ripley and BARBARA KATE SUMROW of Ripley, Tennessee, in equal shares, share and share alike per stirpes.
ITEM IV
All the rest, residue and remainder of the estate which I may own at the time of my death, real, personal or mixed, tangible and intangible, of whatsoever nature and wheresoever situated, including the proceeds of any and all life insurance policies on my life payable to my estate, or the Co-Executors thereof ... I bequeath in fee to my beloved wife, BEULAH KATE STEWART McBRIDE. In the event my spouse predeceases me the balance of my residuary Estate is to be divided equally between by (sic) two (2) children, VERNON McBRIDE, JR. and BARBARA KATE SUMROW in equal shakes, share and share alike.

In the initial complaint, the Co-executors asked the court to declare that Beulah McBride held a life estate in the trust property. Then, assuming that the trial court found that Beulah McBride held a life estate, the Co-executors asked the court to determine the takers of the remainder interest. By an agreed order dated January 15, 2003, the Chancery Court held that the Decedent’s spouse, Beulah McBride, held a life estate in the property and no remainder interest. The court reserved the remaining issue, the disposition of the remainder interest.

On March 25, 2004, the Co-executors were permitted to amend their initial complaint (“Amended Complaint”), to assert that discovery taken in the case “revealed mistake and inadvertence in the wills (sic) preparation,” and that the Decedent intended the will to state “at the death of my spouse” instead of the words “in the event my spouse predeceases me.” The Amended Complaint asked the trial court to reform the will, either to reflect the correction or to strike the language “in the event my spouse predeceases me.” The Co-executors argued that the Decedent intended for each of his two children to receive the specific property devised to them in Item III of the will upon the death of Beulah McBride. The complaint stated that the defendant, the Decedent’s daughter, Barbara Kate Sumrow (“Sumrow”), contends that the will is complete on its face and the trust corpus vests in the Decedent’s children, McBride, Jr., and Sumrow equally.

At a hearing before the trial court on the matter, the Co-executors urged the court to reform the will as requested because to do otherwise would result in partial intestacy. In response, Sumrow alleged that Decedent, her father, intended to treat his children equally, thus the property should be allocated based on intestacy.

By order dated April 13, 2004, the Chancery Court issued its ruling. In the order, the judge first noted that “[t]he basic rule in the construction of wills is for the court to determine the intent of the testator.” Burchfiel v. First United Methodist Church of Sevierville, 933 S.W.2d 481, 482 (Tenn.Ct.App.1996). In this case, both parties agreed that the ambiguity found in the Decedent’s will is a patent ambiguity, that is, ambiguity produced by a deficiency in the language of the will. The trial judge noted that parol evidence may not be used to explain a patent ambiguity or to aid in determining the intent of the testator. Burchfiel v. First United Methodist Church of Sevierville, 933 S.W.2d 481, 482 (Tenn.Ct.App.1996).

In its order, the trial court summarized the parties’ arguments as follows:

The Co-Executors argue that the Court should construe the will to devise the farms set out in Item III in the same manner as the [Decedent] devise (sic) the farms “in the event my spouse predeceases me.” To construe the will in this manner, the Court would have to insert at least one sentence which states, “[I]n the event my spouse survives me, I leave to Vernon McBride, Jr. [specific farms], and I leave to Barbara Kate Sumrow [specific farms].”
[Sumrow] argues that the Court should look to the last sentence of Item IV, which states, “In the event my spouse predeceases me, the balance of my residuary estate is to be divided equally between my two children, Vernon McBride, Jr. and Barbara Kate Sumrow in equal shares, share and share alike.” To follow [Sumrow’s] argument, the Court would have to again insert a sentence, which begins, “In the event my spouse survives me, the balance of my residuary estate is to be divided equally between my two children, ...”

The trial court went on to state:

The Court cannot find that the farmland in Item III should be distributed as set out in Item III, regardless of whether the spouse predeceased or survived the [Decedent].There is nothing on the face of the will which sets out how the specified farms are to be distributed upon the death of the spouse if she survives the [Decedent]. The Court cannot rule as a matter of law that, because the [Decedent] left the specified farms in one manner if his spouse predecease him, that he intended to leave the specified farms in the same manner if his spouse survived him. Therefore, the Court finds that it cannot construe the will in the manner proposed by the Co-Executors. The same finding holds true as to the arguments set forth by [Sumrow].

Since it had been agreed that the interest of the surviving spouse was for her lifetime only, the trial court held that there was no disposition of the remainder interest in the farms in the Decedent’s will. Therefore, the trial court held, the Decedent died intestate as to the farms used to fund the trust. As a result, the farms would pass through intestate succession, resulting in Vernon, Jr. and Sumrow each receiving a half interest. From this order, the Co-executors appeal, arguing that the trial court erred in refusing to reform the will.

The construction of a will is a question of law for the court. Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn.Ct.App.1989).' The cardinal rule in Construction of a will is that the court shall seek to discover the intention of the testator and give effect to it unless it contravenes some rule of law or public policy. Third Nat’l Bank in Nashville v. First Am. Nat’l Bank of Nashville, 596 S.W.2d 824, 828 (Tenn.1980).

On appeal, the Co-executors assert that there was plain error in the drafting of the will and that the Decedent’s clear intent was to leave his widow a life estate in the farms with specific properties passing to the remaindermen as shown in the will. They argue that allowing the farms to pass through intestate succession frustrates the Decedent’s intent of disposing of his property through his will. Further, the Co-executors argue that the trial court erred in finding that the intent of the testator cannot be gleaned from the express terms of the will.

As stated above, both parties agreed that the ambiguity found in the will is a patent ambiguity and, as such, extrinsic evidence may not be used to determine the intent of the testator. Instead, we must look only to the language of the will. After doing so, we must agree with the analysis of the trial court, that the Court cannot simply assume that the Decedent intended to distribute his property in a given manner if his spouse survived him. The will does not address how to distribute the farms in the event the Decedent’s spouse survived him. Under these circumstances, we agree with the trial court’s finding that the properties at' issue must pass through intestacy.

The decision of the trial court is affirmed. Costs of this appeal are taxed to the appellants, Vernon McBride, Jr. and Vernon McBride III, for which execution may issue, if necessary.


author: ALAN E. HIGHERS, J.,

text:
    The ALISON GROUP, INC. v. Greg ERICSON, Individually d/b/a Ericson & Associates, et al.
    Court of Appeals of Tennessee, at Jackson.
    Jan. 20, 2005 Session.
    June 3, 2005.
    Application for Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      Prince C. Chambliss, Jr., Memphis, TN, for Appellants.
    Bruce D. Brooke, Memphis, TN; William C. Hearon, Miami, FL, for Appellees.
   OPINION

ALAN E. HIGHERS, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

This appeal arises out of an action filed by Appellee to confirm an arbitration award. Appellants contest whether Appel-lee, as a foreign corporation without a certificate of authority, may avail itself of the Tennessee judicial system to enforce the arbitration award. The trial court determined that Appellee was exempted from the requirement of obtaining a certificate of authority and confirmed the arbitration award in favor of Appellee. Additionally, the trial court denied Appellee’s request for attorney’s fees incurred to collect the arbitration award. For the following reasons, we affirm.

Facts and Procedural History

The Alison Group, Inc. (“Alison” or “Ap-pellee”) is a foreign corporation with its principal office in North Miami, Florida. Alison is in the business of procuring marketing premiums, specializing in promotional items such as logo items, signs, displays, and banners. It is undisputed that Alison does not hold a certificate of authority to conduct business in the state of Tennessee.

In 1992, Alison began enlisting the services of Greg Ericson (“Ericson”) of Ericson & Associates. Specifically, Ericson solicited orders from customers in Tennessee and elsewhere that would later be processed by Alison. The customer would be quoted a price for the items requested, and, if the customer accepted that price, Ericson would fill out a purchase order form with all the pertinent information. Ericson would then send this form via facsimile to Alison’s office in Florida. Alison would reformat the form into a purchase order form used by Alison and approve or disapprove the order, depending on the results of the credit application for that customer. If Alison approved the purchase order, the company would send the order back to Ericson, who would proof the order for errors. Once Ericson approved the purchase order,. he would send it back to Alison, which, in turn, would send the order to the manufacturer for processing. The manufacturer would send an invoice to Alison, which included the cost of shipping the final product to the customer.

Ericson and the Ericson Group received approximately ninety percent (90%) of their business from Alison. Though it is undisputed that Ericson was not an employee of Alison and Ericson did not receive a salary from Alison, business cards were issued to Ericson, bearing his name and Alison’s logo. One business card designated Ericson a national sales manager and another designated him the vice president of marketing. Though Larry Schweiger (“Schweiger”), president of Alison, testified that he did not tell Ericson how to run his office in terms of the day-to-day operations, the parties dispute whether Ericson held the authority to sign a contract -in behalf of Alison. Further, Ericson was paid on commission, never received a W-2 form from Alison, and did not work exclusively for Alison. Though the letterhead for Alison states that the company has offices in several cities including Miami and Tampa, Florida, Memphis, Tennessee, Cleveland, Ohio, Los An-geles, California, and New York City, New York, Schweiger testified that the Tampa office no longer existed and that these other locations were not offices with Alison employees but, rather, independent contractors like Ericson. Ericson stated that he supervised the members of the Cleveland office and in return received a twenty percent (20%) commission from those members’ sales. Ericson also had assistants working for him which he paid but was reimbursed for these expenses by Alison.

Subsequently, in 1999, a dispute arose between the parties regarding whether any amounts were due to Alison on orders taken or placed with Ericson in 1999 which were directed through Ericson rather than Alison. The parties agreed to submit the dispute to arbitration in Memphis, Tennessee, for settlement. The arbitrator found in favor of Alison and awarded Alison a total of $62,891.37 with an additional award of expenses for the arbitration in the amount of $882.50. Thereafter, Alison sought to confirm the arbitration award in the circuit court for Shelby County. Ericson contested Alison’s motion on the basis that Alison, as a foreign corporation, lacked a certificate of authority, and, therefore, Alison could not initiate any proceedings in a Tennessee court. After a hearing, the trial court determined that Ericson acted as an independent contractor and, thus, Alison was exempted from the requirement of holding a certificate of authority. As a result, the trial court confirmed the arbitration award in favor of Alison. The trial court denied Ericson’s “motion to reconsider” and denied Alison’s motion for an award of attorney’s fees incurred to collect the arbitration award. Ericson filed a notice of appeal and presents the following issue, as we perceive it, for our review:

I. Whether the trial court erred when it determined Ericson was an “independent contractor” such that Alison was not required to have a certificate of authority to file an action to confirm the arbitration award.

Alison filed a cross-appeal and presents the following issue:

II. Whether the trial court erred when it awarded Alison discretionary costs but not attorney’s fees incurred in the collection of the arbitration award.

For the following reasons, we affirm.

Standard of Review

“[RJeview of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.” Tenn. R.App. P. 18(d) (2004). We review questions of law de novo affording no presumption of correctness to the trial court’s conclusions of law. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn.Ct.App.1989)).

Independent Contractor and Certificate of Authority

Appellants argue that the trial court erred when it determined that, by virtue of the fact that Appellants acted as an “independent contractor” for Appellee, Appellee was exempted from the requirement of having a certificate of authority to initiate a proceeding in the state of Tennessee. Specifically, section 48-25-102(a) of the Tennessee Code provides that “[a] foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.” Tenn.Code Ann. § 48-25-102(a) (2002). Additionally, section 48-25-101(a) of the Tennessee Code states that “[a] foreign corporation, except a foreign insurance corporation subject to the provisions of title 56, may not transact business in this state until it obtains a certificate of authority from the secretary of state.” Tenn Code Ann. § 48-25-101(a) (2002). Finally, section 48-25-101(b) provides a list of actions which do not constitute “transacting business”:

(b) The following activities, among others, do not constitute transacting business within the meaning of subsection (a):
(1) Maintaining, defending, or settling any proceeding, claim, or dispute;
(2) Holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs;
(3) Maintaining bank accounts;
(4) Maintaining offices or agencies for the transfer, exchange, and registration of the corporation’s own securities or appointing and maintaining trustees or depositories with respect to those securities;
(5)Selling through independent contractors;
(6) Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts;
(7) Creating or acquiring indebtedness, deeds of trusts, mortgages, and security interests in real or personal property;
(8) Securing or collecting debts or enforcing mortgages, deeds of trust, and security interests in property securing the debts;
(9) Owning, without more, real or personal property; provided, that for a reasonable time the management and rental of real property acquired in connection with enforcing a mortgage or deed of trust shall also not be considered transacting business if the owner is attempting to liquidate the owner’s investment and if no office or other agency therefor, other than an independent agency, is maintained in this state;
(10) Conducting an isolated transaction that is completed within one (1) month and that is not one in the course of repeated transactions of a like nature;' or
(11) Transacting business in interstate commerce.

TenmCode Ann. § 48-25-101(b) (2002) (emphasis added). Hence, if the business conducted by Appellee falls within any one or more of these exceptions, Appellee is not a foreign corporation transacting business and, therefore, not subject to the requirement of TenmCode Ann. § 48-25-102(a).

In this appeal, the parties argue over whether Appellants constituted an independent contractor such that Appellee was not a foreign corporation “transacting business” within the state of Tennessee. The trial court determined that Appellants acted as an independent contractor. We agree. ■ Schweiger testified that he did not instruct Ericson on how to run the day-today operations of Ericson’s office. See Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 950 (Tenn.1985); see also Wilson v. Thompson Constr. Co., 86 S.W.3d 536, 541 (Tenn.Ct.App.2001); Barber v. Ralston Purina, 825 S.W.2d 96, 99 (Tenn.Ct.App.1991). Ericson’s own testimony corroborates this fact when he admits that Appellee permitted him a lot of “leeway” to run his office. Further, Ericson testified that he was not an employee of Appellee and that he never worked exclusively for Appellee. See Stratton, 695 S.W.2d at 950; see also Wilson, 86 S.W.3d at 541; Barber, 825 S.W.2d at 99. More specifically, Ericson stated that ninety percent (90%) of his business was with Appel-lee. Schweiger also testified that Ericson was never instructed to work exclusively for Appellee.

Further, we note that Ericson was paid on commission rather than a salary directly from the Appellee. See Stratton, 695 S.W.2d at 950; see also Wilson, 86 S.W.3d at 541; Barber, 825 S.W.2d at 99. Additionally, he was never sent a W-2 form for income taxation but, rather, filed a 1099 form. Though Appellee supplied Ericson with business cards and stationary, Ericson worked out of his home and hired additional assistants, the cost for which Appellee reimbursed Ericson. See Stratton, 695 S.W.2d at 950; see also Wilson, 86 S.W.3d at 541; Barber, 825 S.W.2d at 99. Under the circumstances of this case, we cannot say that the trial court erred when it determined that Appellants acted as an independent contractor for Appellee. Therefore, we hold that Appellee is not barred from bringing the present action to enforce the arbitration award against Appellants for lack of a certificate of authority to transact business in the state of Tennessee.

Attorney’s Fees

On a cross-appeal, Appellee argues that the trial court erred when it denied Appellee’s request for an award of attorney’s fees incurred in enforcing the arbitration award. In Tennessee’s version of the Uniform Arbitration Act, section 29-5-315 of the Tennessee Code provides as follows:

Upon the granting of an order confirming, modifying or correcting an award a, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application, and of the proceedings subsequent thereto, and disbursements may be awarded by the court.

Ténn.Code Ann. § 29-5-315 (2000) (emphasis added). In addition to arguing that the trial court did not err in denying Ap-pellee an award of attorney’s fees, Appellants argue that several jurisdictions have interpreted this same provision as excluding the possibility of an award of attorney’s fees. Int’l Fed’n of Prof'l & Technical Eng’rs, Local 153 v. Chi. Park Dist., 349 Ill.App.3d 546, 285 Ill.Dec. 587, 812 N.E.2d 407, 412-13 (2004); Terra W. Townhomes, LLC v. Stu Henkel Realty, 298 Mont. 344, 996 P.2d 866, 873 (2000); Nucor Corp. v. Gen. Bearing Corp., 333 N.C. 148, 423 S.E.2d 747, 751 (1992). However, this Court and other jurisdictions have interpreted this provision of the Uniform Arbitration Act to permit an award of attorney’s fees. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 180 Ariz. 148, 882 P.2d 1274, 1280 (1994); County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 653 P.2d 1217, 1220 (1982); Wachtel v. Shoney’s, Inc., 830 S.W.2d 905, 909 (Tenn.Ct.App.1991). Though the decisions of the courts of Illinois, Montana, and North Carolina are persuasive, we see no reason to overturn the Wachtel- court’s interpretation of section 29-5-315 of the Tennessee Code.

Additionally, as noted by the Wach-tel court, a trial court has discretion to award attorney’s fees. Wachtel, 830 S.W.2d at 909-10. Therefore, this Court may reverse the trial court’s denial of an award of attorney’s fees only for an abuse of discretion by the trial court. Id. Under the circumstances of this case, we cannot say that the trial court abused its.discretion when it denied Appellee its attorney’s fees incurred to collect the arbitration award. Therefore, we affirm the trial court on this issue as well.

Conclusion

For the foregoing reasons, we affirm the decision of the trial court. Costs of this appeal are taxed equally to Appellee, The Alison Group, Inc., and Appellants, Greg Ericson, individually and d/b/a Ericson & Associates and The Ericson Group, Inc., and their surety for which execution may issue if necessary. ■

      . Ericson & Associates is a sole proprietorship owned and operated by Ericson. It appears that in 1999 Ericson began another business named The Ericson Group, Inc., a Tennessee corporation. For purposes of this opinion, we shall refer to Ericson & Associates and The Ericson Group collectively as the "Ericson Group.” Additionally, Ericson & Associates, The Ericson Group, and Ericson shall be referred to collectively as "Appellants.”

      . With regard to Ericson’s ability to work for other companies, Ericson stated in a letter to Larry Schweiger "[a]s I have always done in the past, I have been able to separate the business I do for Alison in 1999 from the business I do for Ericson in 1999 and beyond.”

      . Ericson testified that Alison gave him a lot of "leeway.”

      . The trial court did award Alison its discretionary costs with interest in the amount of $17,281.31.

      . We note that the notice of appeal was filed before the trial court’s order on Ericson's motion to reconsider, which the trial court treated as a motion for a new trial, and Alison's motion for discretionary costs and attorney’s fees. However, we are mindful that "[a] prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the appeal is taken and on the day thereof.” Tenn. R.App. P. 4(b) (2004).

      . In their reply brief. Appellants argue that the trial court erred when it awarded Appel-lee discretionary costs because Appellee did not make a motion within thirty (30) days of the order confirming the arbitration award dated November 12, 2003, in compliance with Tenn. R. Civ. P. 54.04(2). We cannot say that the award of discretionary costs constitutes error for failure to timely file a motion requesting costs and attorney’s fees. On November 24, 2003, Appellee filed a notice of filing affidavits with the affidavit of Schweiger and William Hearon, Appellee’s attorney, attached, outlining the costs and attorney's fees Appellee had incurred. It was not until March 4, 2004, that Appellee filed a motion for discretionary costs and attorney's fees with a sworn bill of costs and supporting affidavits. However, on November 19, 2003, Appellants filed a "motion to reconsider” which the trial court treated as a motion for a new trial. Subsequently, the trial court addressed both Appellants’ motion for a new trial and Appellee’s request for discretionary costs and attorney’s fees in a final order on June 11, 2004.
      This Court has previously addressed a similar set of circumstances in Ashford v. Benjamin, No. 02A01-931 l-CV-00243, 1994 WL 677607, 1994 Tenn.App. LEXIS 706 (Tenn.Ct. App. Dec. 6, 1994). In that case, a judgment on a jury verdict was entered on June 4, 1993. Ashford, 1994 WL 677607 at *1, 1994 Tenn. App. LEXIS 706, at *1-2. That same day, the appellees filed a motion for a new trial or additur. Id. at *1. On July 7, 1993, the trial court denied appellees’ motion for new trial but suggested an additur for Dorothy Jackson and Shirley Ashford. Id. On August 6, 1993, Ashford filed a motion for discretionary costs pursuant to Tenn. R. Civ. P. 54.04 and the trial court granted this motion on October 8, 1993. Id. This Court held that Ashford's motion was timely because it was filed within thirty (30) days of the order denying the motion for new trial and suggesting an additur. Id. at *1-2. In this case, Appellants filed a "motion to reconsider” on November 19, 2003, which essentially negated the finality of the order on November 12, 2003, for purposes of filing a motion for discretionary costs. Though Appellee filed its motion for discretionary costs before a final order on Appellants' "motion to reconsider,” we cannot say that Appellee’s motion is untimely.