author: GEORGE W. DRAPER III, Judge.

text:
    Damon STEELE, Individually and as Guardian and Next Friend of DJ Steele, A Minor, Respondents, v. EVENFLO COMPANY, INC., Spalding Sports Worldwide, Inc., and Patricia Mullins, Appellants.
    No. ED 85977.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2005.

      Ann Marie Macpherson Songer, John F. Murphy, Kansas City, MO, G. Keith Phoenix, Daniel E. Wilke, St. Louis, MO, Lawrence R. Smith, Gary P. Paul, Clayton, MO, for appellants.
    Evan A. Douthit, Kansas City, MO, Stanley J. Goodkin, Clayton, MO, for respondents.
   GEORGE W. DRAPER III, Judge.

Evenflo Company, Inc and Spalding Sports Worldwide (hereinafter and collectively, “Evenflo”) appeal from the trial court’s judgment reinstating the denial of its motion for judgment notwithstanding the verdict (hereinafter, “JNOV”) and entering damages pursuant to the jury verdict in favor of Damon Steele (hereinafter, “Plaintiff’), as next Mend and father of Denver John Steele (hereinafter, “DJ”). See Steele v. Evenflo Company, Inc., 147 S.W.3d 781 (Mo.App. E.D.2004) (hereinafter, “Evenflo I ”). The background to this action was detailed by this Court in its prior opinion. Evenflo I, 147 S.W.3d at 784-86. In Evenflo I, this Court reversed the trial court’s grant of a new trial in favor of Evenflo and remanded the cause for reinstatement of the judgment in accordance with the jury’s verdict. After the trial court reinstated the judgment, Even-flo brought this three point appeal, challenging the trial court’s denial of its JNOV and entering damages in accordance with the jury’s second verdict. We affirm the trial court’s reinstated judgment.

We will address Evenflo’s first two points on appeal in tandem for clarity. In its first point on appeal, Evenflo argues the trial court erred in denying its motion for JNOV on Plaintiffs failure to warn and negligence per se claims based on label permanency. Second, Evenflo contends the trial court erred in denying its motion for JNOV on Plaintiffs failure to warn claims based upon the label’s warning content. Specifically, Evenflo argues in both points there was insufficient evidence a permanent label was related causally to DJ’s injuries or that the change in content of a permanent label would have altered the behavior of anyone involved in the accident. Evenflo contends in both of these points on appeal that only a new trial will rectify the improper submission.

The standard of review of the trial court’s denial of a motion for JNOV and directed verdict is essentially the same. Maldonado v. Gateway Hotel Holdings, L.L.C., 154 S.W.3d 303, 307 (Mo. App. E.D.2003). Upon review, this Court must determine whether Plaintiff made a submissible case. Id. “[T]his Court takes the evidence in the light most favorable to the verdict, giving the prevailing party all reasonable inferences from the verdict and disregarding the unfavorable evidence.” Nemani v. St. Louis University, 33 S.W.3d 184, 185 (Mo. banc 2000). When reasonable minds can differ on the questions before the jury, we will not disturb the jury’s verdict and JNOV is not appropriate. Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 565 (Mo.App. E.D.2002). We “will reverse the jury’s verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury’s conclusion.” Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000); LaRose v. Washington University, 154 S.W.3d 365, 369 (Mo.App. E.D.2004).

There are two separate requirements of causation which a plaintiff must prove in a failure to warn case: “(1) the product for which there was no warning must have caused plaintiffs injuries; and (2) ‘the plaintiff must show that a warning would have altered the behavior of those involved in the accident.’” Klugesherz v. American Honda Motor Co., Inc., 929 S.W.2d 811, 814 (Mo.App. E.D.1996)(quoting Tune v. Synergy Gas Corp., 883 S.W.2d 10,14 (Mo. banc 1994)).

There is no dispute that the car seat was the cause of DJ’s injuries during the accident. In determining whether the warning would have altered Plaintiffs behavior, “Missouri, like several other states, aids plaintiffs in proving this second part of causation by presuming that a warning will be heeded.” Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. banc 1992). Plaintiff testified he had not heard any negative reports regarding the car seat’s safety and he had read the labels that remained on the car seat. Plaintiff further stated that if there would have been a warning that the car seat was not intended for children weighing less than forty pounds he would have heeded the warning and not purchased the car seat for DJ. This testimony came into evidence without an objection by Evenflo. Hence, Plaintiff presented a submissible case for failure to warn.

Evenflo further claims Plaintiff failed to make a submissible case of negligence per se, and Plaintiff contends he did not submit his negligence per se claim to the jury. There are four requirements to establish a negligence per se claim: (1) a violation of a statute or ordinance; (2) the injured party must be within the class of persons intended to be protected by the statute or ordinance; (3) the injury is of the type that the statute or ordinance was designed to protect; and (4) the violation of the statute or ordinance is the proximate cause of the injury. Loudermilk v. Vescovo Building and Realty Co., Inc., 91 S.W.3d 617, 628 (Mo.App. E.D.2002). “When a case based on negligence per se is submitted to the jury, the standard of care is omitted because the statutory violation itself constitutes a breach of the standard of care.” Burns v. Frontier II Properties Ltd. Partnership, 106 S.W.3d 1, 4 (Mo.App. E.D.2003). In other words, “[although there are no MAI instructions for negligence per se ..., when negligence per se is the basis of liability ..., the MAI instruction for that action is still applicable; only the element of negligence, or breach of the standard of care, is removed.” Id.

Upon review of the verdict directors submitted to the jury, we find there was no negligence per se instruction offered to the jury. Each of the verdict directing instructions contained language based upon Evenflo’s knowledge or the standard of ordinary care. There was no negligence per se claim submitted to the jury. Ergo, Plaintiff could not fail to make a submissi-ble case of negligence per se when negligence per se was not submitted to the jury. Points one and two are denied.

In its final point on appeal, Evenflo claims the trial court erred in not entering judgment for $4.5 million. Evenflo believes the jury’s original verdict unambiguously expressed its intent to award $4.5 million in compensatory damages and $4 million in punitive damages. Evenflo states that Missouri law requires the excess award of $4 million to be disregarded.

When a case is reversed and remanded, the higher court’s ruling becomes the law of the case. Hiblovic v. Cinco-T.C., Inc., 168 S.W.3d 506, 509 (Mo.App. E.D.2005).

The general rule is that the decision of an appellate court is the law of the case on all points presented and decided and remains the law of the case throughout all subsequent proceedings, both in the trial and appellate courts, and no question involved and decided in the first appeal of the cause will be considered on a second appeal, and on a retrial should not be considered by the trial court.

Id. (quoting In re Marriage of Bullard, 18 S.W.3d 134,138 (Mo.App. E.D.2000)).

In the instant case, this Court reversed the trial court’s grant of a new trial to Evenflo. In our decision, we stated: “The manner in which the trial court ascertained the jury’s intent with respect to the first verdict was proper ....’’ Evenflo I, 147 S.W.3d at 791. Since we found the trial court’s determination of the jury’s intent to be without error in Evenflo I, its ascertainment of the jury’s intent cannot now be error. Point denied.

The judgment of the trial court is affirmed.

GARY M. GAERTNER, SR., P.J., and KENNETH M. ROMINES, J., concur.

      . Plaintiff filed two motions, both taken with the case. One of Plaintiff’s motions seeks to strike the brief and dismiss the appeal of Patricia Mullins; the other motion seeks to strike the brief and dismiss the appeal of Evenflo. Both of these motions are denied.

      . As a preliminary matter, we note that the proper remedy if we were to reverse the denial of the JNOV, would be a directed verdict in favor of Evenflo and not the grant of a new trial.


source: Caselaw Access Project

author: KENNETH M. ROMINES, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Keith McGULL, Appellant, v. ST. LOUIS BOARD OF POLICE COMMISSIONERS, et al., Respondents.
    No. ED 85838.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2005.

      Neis C. Moss, Jr., The Moss Law Firm, L.L.C., Clayton, MO, for appellant.
    Edward J. Hanlon, Jane B. Shaw, St. Louis, MO, for respondents.
   KENNETH M. ROMINES, Judge.

Keith McGull (McGull), a police officer with the St. Louis Metropolitan Police Department, appeals from the Judgment denying his request for a hearing before the Police Board in his termination case. We reverse and remand with directions to grant the petition for mandamus requesting a hearing.

The record reveals that this matter had its genesis when the Police Department issued its Allegation of Employee Conduct Report on 17 January 2003. On 22 March 2004, formal Charges and Specifications alleging conduct unbecoming an officer were issued and sent to McGull. McGull also received a letter notifying him that his hearing was scheduled for 11 May 2004, before Hearing Officer Mavis T. Thompson. Thompson, an attorney, is not a member of the St. Louis Board of Police Commissioners (Board or St. Louis Board).

In reliance on Police Department Rule 7.018, the Board informed McGull that his hearing would be before a hearing officer. At such a hearing, no board members are present. The hearing officer renders a judgment, recommends discipline, and submits recommended Findings of Fact and Conclusions of Law, to which the parties may then file written exceptions. These Findings of Fact and Conclusions of Law and exceptions, along with a transcript and videotape of the hearing, are to be given to the Board. The Board is to review these materials and makes its final decision.

On 10 May 2004, McGull refused to accept termination, and requested and obtained a continuance of his hearing until 13 July 2004. On 6 July 2004, McGull filed a Request for Hearing before the Board.

On 9 July 2004, the Board denied McGull’s hearing request. That same day, McGull filed his Petition for Mandamus and/or Prohibition and for Declaratory Judgment with Stay Order, which requested the Court to order the Board, or a quorum thereof, to conduct his hearing; to prohibit Thompson from conducting the hearing on 13 July 2004; and to declare invalid the part of Rule 7.018 that authorizes hearings before hearing officers. The Board filed its Motion to Dismiss McGull’s Petition on 6 August 2004.

On 12 July 2004, the Circuit Court of the City of St. Louis granted the Preliminary Order in Mandamus and Prohibition and for Declaratory Judgment with a Stay Order.

On 24 November 2004, the Circuit Court entered an Order and Judgment denying McGull’s Petition for Mandamus or Prohibition and for Declaratory Judgment, and quashed the preliminary order in mandamus. The Court held that Sections 84.010 through 84.340 RSMo (2003), which govern the St. Louis Board, give the Board broad authority to establish rules that govern the police department. Section 84.170 authorizes the Board to make “all such rules and regulations ... as they may judge necessary.” The Circuit Court concluded that this broad authority allows the Board to make a rule that delegates hearing authority to a Hearing Officer. The Court also found that Sections 84.350 through 84.860 RSMo (2003), which govern the Kansas City Board of Police Commissioners (Kansas City Board), are much more detailed and specific than Sections 84.010 through 84.340, and therefore confer less rule-making authority upon the Kansas City Board. Accordingly, the Court concluded that State ex rel. Rogers v. Board of Police Commissioners of Kansas City, 995 S.W.2d 1 (Mo.App. W.D.1999), which held that Section 84.600 requires the Kansas City Board to conduct hearings, does not apply to the St. Louis Board; and even if it did, it would not prohibit the use of hearing officers, because the St. Louis Board has broad power under Section 84.170. Additionally, the Court decided that “exclusive” jurisdiction, as used in Section 84.150, does not mean “non-delega-ble” jurisdiction; rather, “exclusive” means that “the one who holds the ‘exclusive’ rights must explicitly authorize any delegation.” Thus, the Court found that delegation of hearing authority under Rule 7.018 was consistent with the Board’s exclusive jurisdiction. Finally, the Court concluded that the Board’s use of hearing officers does not constitute a denial of due process, because hearing officers submit videotapes of witness testimony to the Board members, who can then evaluate witness credibility and render the final decision. This appeal followed.

While it is true that the denial of a writ of mandamus is discretionary, the lower court’s decision was a matter of statutory interpretation. Statutory interpretation is a question of law, which we review de novo. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Ochoa v. Ochoa, 71 S.W.3d 593, 595 (Mo. banc 2002). When interpreting a statute, we must ascertain legislative intent from the language; give effect to that intent, if possible; and consider the words in their plain and ordinary meaning. Budding v. SSM Healthcare System, 19 S.W.3d 678, 680 (Mo. banc 2000). The Court cannot look to rules of construction unless a statute contains an ambiguity. State ex rel. Baumruk v. Belt, 964 S.W.2d 443, 446 (Mo. banc 1998).

McGull raises three points on appeal. However, because we find relief for McGull on his first and second points, we need not address the constitutional due process argument he makes in his third point.

In his first and second points on appeal, McGull argues that the Board lacks the statutory authority to enact Rule 7.018, which allows the Board to delegate its hearing authority to a hearing officer. McGull claims that the plain language of Sections 84.150 and 84.170 indicates that delegation of the Board’s hearing authority pursuant to Rule 7.018 is inconsistent with the “exclusive jurisdiction” given by Section 84.150. McGull also claims that the differences between the statutes governing the Kansas City and St. Louis Boards are insignificant, and Rogers therefore controls. We agree that the Board cannot delegate the hearing, and find Rogers helpful and persuasive.

Section 84.170, which governs the St. Louis Board, provides the Board with rule-making power: “[t]he boards of police are hereby authorized to make all such rules and regulations, not inconsistent with sections 84.010 and 84.340, or other laws of the state, as they may judge necessary, for the appointment, employment, uniforming, discipline, trial and government of the police.” Section 84.150 establishes an officer’s right to a hearing before termination: “[t]he officers of the police force shall ... be subject to removal only for cause after a hearing by the board, who are hereby invested with exclusive jurisdiction in the premises.”

Section 84.420.2, which governs the Kansas City Board, establishes the Board’s power to make rules: “[t]he board shall determine the policy and in fulfillment of the duties and responsibilities herein provided and to this end shall: (l)[a]dopt rules and regulations not inconsistent herewith governing the conduct of such police department.” Section 84.600 sets out the right to a hearing before the Kansas City Board:

Policemen and police officers shall be subject to discharge or removal only for cause and upon complaint being made or charges being preferred against them ... and they shall have the right to appear before the board at a public hearing ... and be confronted by the witnesses against them and to be defended by counsel and the board after hearing the charges shall take a vote of yeas and nays to be entered upon the records whether or not the charges have been sustained and what punishment, if any, shall be imposed.

The St. Louis Board contends that the differences between the St. Louis and Kansas City statutes are significant, and give broad power to the St. Louis Board, but much narrower power to the Kansas City Board. Section 84.170 authorizes the St. Louis Board to make “all such rules ... as they may judge necessary.” The St. Louis Board argues that this language provides greater authority than Section 84.420.2, which grants the Kansas City Board the authority to “adopt rules ... governing the conduct of such police department.” We disagree, as we find the differences between Sections 84.170 and 84.420.2 insignificant.

We must interpret Sections 84.170 and 84.420.2 by looking at the plain meaning of the words. Neither provision contains language of limitation. Nor are we allowed to read such a limitation into the statute. Thus, it is immaterial that the St. Louis provision uses the phrases “all such rules” and “as they may judge necessary,” while the Kansas City provision — “the board shall ... [ajdopt rules and regulations”— lacks this language. The language in the Kansas City provision is sufficient to create rule-making power in its Board. This Court is not persuaded that Section 84.170 creates greater authority than Section 84.420.2.

We also find that the differences in Section 84.150 — St. Louis — and Section 84.600 — Kansas City, are in style and not meaning. Both statutes entitle police officers facing termination to a hearing in front of the respective Board of Police Commissioners. Section 84.150 states that St. Louis police officers shall be “subject to removal only for cause after a hearing by the board, who are hereby invested with the exclusive jurisdiction in the premises.” (Emphasis added). Similarly, Section 84.600 provides that Kansas City police officers “shall be subject to discharge or removal only for cause ... and they shall have the right to appear before the board at a public hearing ...” (Emphasis added). Section 84.600 delineates numerous other procedural rights afforded officers facing termination, including the rights to confront witnesses and be defended by counsel. Section 84.600 also details the procedures the Kansas City Board must follow.

The St. Louis Board argues that the phrase “before the board” in the Kansas City provision, combined with the detailed board hearing procedures enumerated, creates a right to a board hearing that is not paralleled in the St. Louis provision. We disagree. The phrase “by the board,” just like the phrase “before the board,” indicates an intent to create a right to a board hearing. While the St. Louis provision does not list the specific procedures the Board must use, it does not follow that officers are not entitled to a hearing before the Board.

The St. Louis Board also argues that its practice of using hearing officers is consistent with its “exclusive jurisdiction” pursuant to Section 84.150. Again, we disagree. Black’s Law Dictionary (8th ed.2004) defines “exclusive jurisdiction” as “[a] court’s power to adjudicate an action or class of actions to the exclusion of all other courts.” A grant of exclusive jurisdiction requires a body, in this case the St. Louis Board of Police Commissioners, to adjudicate the matter to the exclusion of all others. In other words, the St. Louis Board of Police Commissioners must hear the case. Rule 7.018 is inconsistent "with the statutory command, and cannot stand.

Because we find no significant differences in the St. Louis and Kansas City statutes, Rogers is instructive. The facts of Rogers are remarkably similar to ours. In Rogers, the Kansas City Police Chief filed charges and specifications against Sergeant John A. Rogers. Rogers, 995 S.W.2d at 2. On the morning of Rogers’s hearing, the Kansas City Board adopted a resolution that appointed its Secretary/Attorney as hearing officer for the matter. Id. Pursuant to this resolution, the hearing officer was directed to hear evidence and provide the transcript and exhibits to the Board for its decision. Id. Rogers objected to use of the hearing officer and sought a writ from the Jackson County Circuit Court prohibiting the hearing officer from presiding over the case. Id. The Circuit Court entered an order in mandamus that ordered the Kansas City Board to provide Rogers with a hearing before the full Board, or a quorum thereof. Id. The Kansas City Board appealed on the ground that Section 84.600 does not prohibit the appointment of a hearing officer. Id.

The Missouri Court of Appeals, Western District, held that Section 84.600 entitles Kansas City police officers facing termination to a hearing before the Kansas City Board, or a quorum thereof; delegation of this hearing authority to a hearing officer was inappropriate. Rogers, 995 S.W.2d at 4. The Court reasoned that fact-finding is not so burdensome as to prevent the Board from operating fully if it is required to conduct hearings. Id. The Court noted that the Missouri Supreme Court held that the authority to delegate need not be expressed in the statute; rather, it may be implied if there is a “reasonable basis for such implication.” Id.; quoting Brorni Group v. Admin. Hearing Comm’n, 649 5.W.2d 874, 878 (Mo. banc 1983). In Brown Group, the Missouri Supreme Court found that ministerial acts, such as signing an additional tax assessment, may be delegated. Brown Group, 649 S.W.2d at 878-79. Rogers, however, distinguished Brown Group and held that there is no express authority in Section 84.600 to delegate the Board’s hearing authority; neither may this authority be implied. Rog ers, 995 S.W.2d at 4. Moreover, the Court noted the importance of the duty of determining facts and credibility — responsibilities that do not constitute mere “ministerial acts.” Id.

In this matter, just as in Rogers, the Board of Police Commissioners delegated its statutory hearing authority to a hearing officer. Just like the officer in Rogers, McGull faced termination, and yet was denied a hearing before the full Board. In both Rogers and this case, the hearing officers’ practice.is to provide the Board with the hearing evidence and transcripts; the Board then renders the final decision. As already discussed,- we do not find the differences between the St. Louis and Kansas City provisions significant. Accordingly, we are persuaded that the reasoning in Rogers applies to the St. Louis Board.

The St. Louis Board contends that Schuettenberg v. Board of Police Com’rs of City of St. Louis, 935 S.W.2d 712 (Mo.App. E.D.1996), applies to this matter. However, Schuettenberg is not on point. Schuettenberg involved an entirely different statute, Section 84.040, and an entirely different class of employees, civilian employees. Section 84.040 gives St. Louis personnel — not police officers — the right to a hearing. Schuettenberg involved a single St. Louis statute that concerned personnel — not police officers. The issue in Schuettenberg was whether the plaintiff fell into the category of “personnel,” which is entitled to a hearing under Section 84.040. This case, however, involves two statutes — one for St. Louis and one for Kansas City — that apply to police officers. Unlike Schuettenberg, our task is not to determine if McGull is a “police officer.” We considered whether Section 84.150 grants a hearing before the board, and we concluded that it does. The court in Schuettenberg even distinguished the statutes in our case from Section 84.040: “[ojther statutes, and specifically [Sections] 84.120 and 84.150, provide that members of the police force may only be dismissed for cause and are entitled to a hearing in the event of disciplinary .action. Civilian employees, such as Schuetten-berg, however, are simply not granted those same protections.” Schuettenberg, 935 S.W.2d at 715. Schuettenberg is not helpful to our comparison of the provisions at issue.

The St. Louis Board urges us to affirm this case because, it argues, the effectiveness and efficiency of the Board will suffer it if must provide full Board hearings. However, the Board also claims that it reviews the hearing transcripts and videotapes. Viewing a videotape of a hearing takes no less time than attending the actual hearing. The St. Louis Board also contends that it is more convenient for the Board members to review the hearing materials on their own time, and it is too burdensome to schedule a time for all members to sit for a hearing. We agree with the Western District: fact finding is not so burdensome as to prevent the Board from operating fully. See Rogers, 995 S.W.2d at 4. Simply, Section 84.150 grants a hearing “by the board.” The judgment is reversed and remanded to the Circuit Court, to grant the petition for mandamus requesting a hearing before the full Board or a quorum thereof.

GARY M. GAERTNER, SR., P.J. and GEORGE W. DRAPER III, J., concur.

      . Police Department Rule 7.018 allows the Board to delegate its hearing authority as follows: “Under Missouri law, the Board of Police Commissioners is vested with exclusive authority to hear and render decisions at Board hearings. The Board is entitled by law to delegate the hearing authority to a non-board member.”


author: FRANK G. CLEMENT, JR., J.,

text:
    CANNON COUNTY BOARD OF EDUCATION v. Goldy WADE, et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Aug. 6, 2004 Session.
    Jan. 27, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      Robert G. Wheeler, Jr., and Samuel L. Jackson, Nashville, Tennessee, for the appellant, Cannon County Board of Education.
    Richard L. Colbert and Marty S. Turner, Nashville, Tennessee, for the appel-lees, Goldy Wade and Cannon County Education Association.
   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the court,

in which WILLIAM C. KOCH, JR., P.J., M.S., and WILLIAM B. CAIN, J., joined.

School Board filed a Declaratory Judgment action pursuant to Tenn.Code Ann. § 29-14-101, et seq., to avoid binding arbitration with a non-tenured teacher concerning the School Board’s decision to not extend the teacher’s contract of employment beyond its one-year term. Defendants, the teacher and the education association, filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss. Finding that the parties had entered into a binding agreement to submit such grievances to arbitration, the trial court granted the motion holding that there was no state of facts the School Board could prove that would warrant relief. We are unable to conclude that there is no state of facts the School Board can prove that would warrant relief. Moreover, Tenn. R. Civ. P. 12.02(6) motions are rarely appropriate in declaratory judgment actions. Therefore, we vacate the judgment, reinstate the complaint and remand the matter for further proceedings.

The Cannon County Board of Education (the School Board) filed this Declaratory Judgment action pursuant to Tenn.Code Ann. § 29-14-101, et seq. The School Board filed the action to avoid arbitration with Mr. Goldy Wade, a non-tenured teacher, concerning the School Board’s decision to not extend Mr. Wade’s contract of employment for another school year. It requested a declaration by the court that the matters in dispute were not appropriate for arbitration, that there was no basis for a “grievance” because the contract of employment expired by its own terms.

Initially, the only defendant was Mr. Wade. Shortly after the complaint was filed, the Cannon County Education Association (the Association) intervened and, along with Mr. Wade, promptly filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss the complaint in order to require the School Board to engage in binding arbitration. The essence of the motion was that since the parties had committed to arbitration as the forum for resolving their disputes, the complaint failed to state a claim upon which relief could be granted because the court was precluded from hearing a dispute which the parties had agreed to resolve by arbitration. The defendants relied on D & E Construction Company, Inc. v. Robert J. Denley Company, Inc., 38 S.W.3d 513, 518 (Tenn.2001) which stands for the proposition that parties to a collective bargaining agreement who have agreed to arbitrate their disputes are bound by the terms of their arbitration agreement. The defendants also cited United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) which held that the trial court’s inquiry was confined to the question of whether the parties agreed to arbitrate the grievance at issue.

The School Board countered, arguing that the matters in dispute were not within the scope of their agreement because there was no provision in the agreement with Mr. Wade that required the School Board, or its Director of Schools, to extend the term of a contract of employment for nontenured teachers that expired by its own terms after one year. Specifically, the School Board argued that Mr. Wade was not fired and was not sanctioned; to the contrary, his contract was merely not extended beyond the specified term of one year.

The trial court disposed of the case by ruling on a Tenn. R. Civ. P. 12.02(6) motion to dismiss the complaint because it failed to state a claim upon which relief could be granted. Thus, the issue for this court to consider is whether the trial court erred in holding that the School Board’s complaint failed to state a claim upon which relief could be granted, thus requiring the School Board to engage in arbitration proceedings with Mr. Wade.

The order from which this appeal arises granted a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6). The Tennessee Supreme Court has identified the standard of review for appellate courts when one appeals the grant of a motion to dismiss. See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn.2002). The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether the pleadings state a claim upon which relief can be granted. Such a motion only challenges the legal sufficiency of the complaint. It does not challenge the strength of the plaintiffs proof. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 650, 554 (Tenn.1999). For purposes of a Tenn. R. Civ. P. 12.02(6) motion, the moving party is deemed to have admitted the truth of all relevant and material averments in the complaint. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). Thus, when reviewing a motion to dismiss we must liberally construe the complaint, presuming all factual allegations to be true and giving the plaintiff the .benefit of all reasonable inferences. See Pursell v. First American National Bank, 937 S.W.2d 838, 840 (Tenn.1996). A complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of the claim that would warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999); Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848 (Tenn.1978).

The relevant facts are limited to those stated in the complaint because there was no answer to the complaint, no discovery and of course no trial. The few facts to be found in the record are as follows. Mr. Wade was employed as the “In School Suspension Teacher” at Cannon County High School from 1999 through 2002, comprising three school years. At the conclusion of the third year, Mr. Wade’s contract of employment was not renewed by the School Board. Mr. Wade filed a grievance in June 2002 wherein he alleged that his non-renewal was a form of discrimination. As part of the grievance protocol, Mr. Wade also requested that the matter be submitted to binding arbitration pursuant to the collective bargaining agreement between the School Board and the Association. It was at this point that the School Board filed the complaint to avoid arbitration.

In its memorandum opinion, the trial court identified the issue before it as follows, “whether a non-tenured teacher who is given notice that he will not be offered another teaching contract after the expiration of his third one-year contract is entitled to benefit from the grievance procedure provided by the [collective bargaining agreement].” The trial court also made a number of findings including the following:"

Defendant Goldy Wade was employed as an in-school suspension teacher for Cannon County. He taught for three years and was not a tenured employee. Mr. Wade taught each year under the terms of an individual one year contract which contained no provisions for renewal. Near the end of his third year as a teacher, notice was given to Mr. Wade that a contract would not be offered to him for the next school year. Mr. Wade filed a grievance procedure in accordance with the agreement between the Cannon County Board of Education and the Cannon County Education Association which was then in force. Dissatisfied with the results of each of the first four grievance procedures, outlined by the [collective bargaining agreement], ... Mr. Wade gave notice, ... that he sought to proceed to the fifth step outlined by the agreement, that of arbitration. The Board of Education filed this suit seeking our declaratory judgment that such was not proper.

The trial court placed great emphasis on Article XXVIII of the collective bargaining agreement which provides:

Any individual agreement or contract between the employer and an employee heretofore or hereafter executed shall be subject to and consistent with the terms and conditions of this Agreement. If an individual contract or agreement contains any language inconsistent with this Agreement, this Agreement shall be controlling.-

The reason this provision is significant is that Mr. Wade had no right or expectation of continued employment beyond the one-year term, at least not pursuant to his individual employment agreement; however, the collective bargaining agreement afforded “teachers” rights, in addition to those stated in individual employment agreements. Moreover, the collective bargaining agreement provided that these additional rights “shall be controlling” if the “language” between the two agreements is “inconsistent.” One such additional right required the School Board to give teachers notification in writing of any alleged deficiencies, indicating expected corrections, and indicating a reasonable period of correction. (Article XXTV, Section A) Another right mandated by the collective bargaining agreement stated that no teacher “shall be laid off except in cases of substantial change in the size and nature of the student population or unavoidable budgetary limitations.” (Article XIV) The collective bargaining agreement also provided for certain due process provisions including the right to present witnesses and to have representation when being “reprimanded, warned, or disciplined for any infraction of rules or delinquency in professional performance.” (Article XXIV)

Though but a few facts are in the record, it is evident from these facts that the collective bargaining agreement between the School Board and the Association pertains to all teachers, including nontenured teachers. This is because the collective bargaining agreement makes no distinction between tenured and non-tenured teachers and it covers all persons with “certificates” to teach. Mr. Wade, though non-tenured, had a certificate to teach. Thus, Mr. Wade is a third party beneficiary of the collective bargaining agreement, at least during the term of his employment agreement. As a result, Mr. Wade is entitled to the due process provisions under Article VI of the collective bargaining agreement to the extent the grievance pertains to his contractual rights. Whether the dispute concerning the School Board’s decision to not extend Mr. Wade’s contract is such a grievance and therefore a proper subject for binding arbitration (the fifth step in the official grievance procedure) is vigorously disputed.

The two agreements are indeed inconsistent. Mr. Wade’s individual agreement expressly states it is for one year, and it does not provide for an extension or continuance of employment beyond the one year; yet, the collective bargaining agreement expressly limits the School Board’s authority to “lay off’ a teacher. But is this the type of “inconsistent” language that activates the “controlling” provision under Article XXVIII of the collective bargaining agreement? Moreover, was Mr. Wade “laid off’ or did his employment agreement merely expire? The healthy tension presented by the two agreements is that Mr. Wade is clearly entitled to due process pursuant to the collective bargaining agreement to the extent a grievance pertains to his employment, but is he enti-tied to due process for a grievance that arguendo pertains to disputed rights (employment) subsequent to the expiration of the term of his individual employment agreement. Stated another way, is Mr. Wade entitled to invoke the due process provision of the collective bargaining agreement in order to afford an arbitrator the authority to “extend” the term of his contract of employment “beyond” the one-year term of his individual employment agreement?

Should this matter go to trial, the ultimate issue will be whether a non-tenured teacher, whose contract of employment for a specific term was not extended, is entitled to employ binding arbitration pursuant to step five of the grievance procedure to “extend” the term of his employment contract beyond the term expressly provided in the individual contract. The essence of the School Board’s complaint is that the answer to the foregoing question is “no.” The defendants insist the answer is “yes.”

The standard of review applicable to Rule 12 motions to dismiss tells us that the School Board’s complaint should not be dismissed for failure to state a claim unless it appears that it can prove no set of facts in support of its claim that would warrant relief (emphasis added) See Doe v. Sundquist, 2 S.W.3d at 922; Fuerst, 566 S.W.2d at 848. We are unable to conclude that there is no set of facts the School Board can present that would warrant the relief sought, which is a determination by declaratory judgment that the School Board is, or is not, contractually obligated to arbitrate Mr. Wade’s grievance.

It should be further noted that Tenn. R. Civ. P. 12.02(6) motions are rarely appropriate in declaratory judgment actions. See Glover v. Glendening, 376 Md. 142, 829 A.2d 532, 539 (2003). The prevailing rule is that when a party seeking a declaratory judgment alleges facts demonstrating the existence of an actual controversy concerning a matter covered by the declaratory judgment statute, the court should not grant a Tenn. R. Civ. P. 12.02(6) motion to dismiss but, instead, proceed to render a declaratory judgment as the facts and law require. Hudson v. Jones, 278 S.W.2d 799, 804 (Mo.Ct.App.1955); 1 Walter H. Anderson, Actions for Declaeatory Judgments § 318, at 740 (2d ed.1951).

The Tennessee Supreme Court followed this protocol in Frazier v. City of Chattanooga, 156 Tenn. 346, 1 S.W.2d 786 (1928). A resident of Chattanooga sought a declaratory judgment concerning whether a private act conferring powers on the City of Chattanooga had been repealed by implication by another private act. The City filed a demurrer, being the former equivalent of today’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim. Rather than ruling against the resident on the merits of the case, the trial court sustained the City’s demurrer (dismissed the action). The Tennessee Supreme Court observed: “It seems to us that the better practice in a case brought under the Declaratory Judgment Law ... is to enter a decree, sometimes referred to as a ‘declaration,’ defining the rights of the parties under the issues made, even though such decree is adverse to the contentions in the bill.” Frazier, 1 S.W.2d at 786.

The purpose of a declaratory judgment action is to resolve a dispute, afford relief from uncertainty with respect to rights, status, and other legal relations. Snow v. Pearman, 222 Tenn. 458, 436 S.W.2d 861, 863 (1968); Tenn.Code Ann. § 29-14-103 (2000). The fact that the party seeking declaratory relief is not entitled to the judgment sought (that it is on the losing side of the controversy) does not mean that the parties are not entitled to the relief from uncertainty that a declaratory judgment affords. Thus, a party seeking a declaratory judgment is not required to allege facts in its complaint demonstrating that it is entitled to a favorable decision. Maguire v. Hibernia Savings & Loan Society, 23 Cal.2d 719, 146 P.2d 673, 678 (1944) (holding a complaint for declaratory relief which recites the dispute between the parties and prays for a declaration of rights, states facts sufficient to constitute a cause of action against a motion to dismiss for insufficiency of the complaint although it is on the wrong side of the controversy); see also State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186 (Tenn.2000) (holding the essential element to be a justiciable controversy exists.)

In this case, the School Board sought a declaratory judgment regarding its rights and obligations under the collective bargaining agreement and state law. There is no question that an actual controversy exists and that the subject of the dispute is covered by TenmCode Ann. § 29-14-103. Accordingly, the trial court should not have granted the Tenn. R. Civ. P. 12.02(6) motion to dismiss. Instead,' the court should have required the defendants to file answers and once the answers were filed the court could then determine whether this case was appropriate for summary judgment. If the trial court, in its discretion, determines that this is an appropriate case for summary judgment, then it should determine whether and under what conditions the School Board would be required to submit its decision not to renew Mr. Wade’s contract to binding arbitration under the collective bargaining agreement.

Accordingly, we vacate the judgment dismissing the School Board’s complaint and remand this matter to the trial court for further proceedings consistent with this opinion.

Costs of appeal are assessed against the appellees.

      . Mr. Wade had been employed for three one-year terms as a non-tenured teacher pursuant to three contracts between Mr. Wade and the School Board.

      . The grievance procedure in Article VI has five steps, arbitration is the fifth and final step.

      . The collective bargaining agreement provides for two forms of "due process.” One is that just stated in Article XXIV and the other appears in Article VI, which is the "grievance procedure” that includes arbitration (Article VI, Step 5).

      . Article II defines a "professional employee” as any person employed by the Board in a position which requires a certificate issued by the State Department of Education for service in public elementary and secondary schools of Tennessee supported in whole or in part by local, state or federal funds, and "teacher” or "employee” are defined to include any person included in the negotiations unit. The only professional employees excepted from these definitions are those designated by the Board as "management personnel” pursuant to Tenn.Code Ann. § 49-5-608.

      . There may be exceptions to this principle but it is not necessary that we articulate them to resolve this dispute.


author: SHARON G. LEE, J.,

text:
    Susan HUTCHESON v. Kristi BARTH, Individually and in her Capacity as Administrator of the Estate of Raymond Wesley Barth.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Assigned on Briefs Jan. 11, 2005.
    Jan. 26, 2005.
    Permission to Appeal Denied by Supreme Court Aug. 29, 2005.
    Ricky A.W. Curtis, Knoxville, Tennessee, for the Appellant.
    Thomas R. Ramsey, III, Knoxville, Tennessee, for the Appellee.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, J., joined.

The threshold issue presented in this appeal is whether the Plaintiff timely filed her notice of appeal so as to give this Court jurisdiction to hear this case. The trial court entered its order granting the Defendant’s motion for summary judgment on January 15, 2004. This order adjudicated all the claims of the parties. On February 25, 2004, the Defendant filed a motion for contempt alleging non-performance of the order by the Plaintiff. On March 19, 2004, an agreed order awarding the Defendant pre-judgment interest was entered. The Defendant had not sought pre-judgment interest in her counter-complaint or in any subsequent pleadings. The Plaintiff filed a notice of appeal on April 19, 2004. We find that the notice of appeal was not filed within thirty days of entry of the judgment appealed from pursuant to Rule 4 of the Tennessee Rules of Appellate Procedure. Therefore, we dismiss this appeal because this court does not have jurisdiction to hear the issues in this appeal.

On January 21, 2003, Susan Hutcheson (“Plaintiff’) filed a complaint for declaratory judgment seeking a determination as to the ownership of vehicles and life insurance proceeds. The complaint specifically sought the following relief:

That upon hearing, the Court declare that the vehicles transferred inter vivos to the Plaintiff, Susan Hutcheson, are the sole property of the Plaintiff and that the Estate of Raymond Wesley Barth has no claim to the same.
That upon hearing, the Court declare that the life insurance proceeds are the sole property of the Plaintiff, Susan Hutcheson, the named beneficiary, and that the Defendant, Kristi Barth, individually, has no claim to the same.

For such other and general relief to which the Plaintiff may be entitled. (Numbering in original omitted).

Kristi Barth, individually and in her capacity as Administrator of the Estate of Raymond Wesley Barth (“Defendant”), filed an answer to the complaint for declaratory judgment and a counter-complaint requesting the following relief:

That upon hearing, the Court declare that the inter vivos transfers were invalid transfers and are the sole property of the Estate of Raymond Wesley Barth and that Susan Hutcheson has no claim to same.
That upon hearing, the Court declare that the life insurance proceeds are the sole property of the [sic] Kristi Lee Barth, the named beneficiary and that the Counter-Defendant, Susan Hutche-son has no claim to same.
For such other and general relief to which the Counter-Plaintiff is entitled.

(Numbering in original omitted).

Defendant filed a motion for summary judgment. Thereafter, the parties agreed to waive a jury trial and submit the matter to the court for hearing upon the motion for summary judgment. The trial court granted Defendant’s motion for summary judgment by order entered January 15, 2004. This order provided in pertinent part as follows:

The Defendant/Counter-Plaintiff, Kristi Barth is awarded Judgment in the amount' of the life insurance proceeds from the Plaintiff/Counter-Defendant and a Constructive Trust is imposed on the life insurance proceeds and Kristi Barth, Defendant/Counter-Plaintiff is granted possession of the personality [sic] as aforementioned as Administra-trix of the Estate of Raymond Wesley Barth. Court costs are taxed to the Plaintiff/Counter-Defendant.

No further action was taken by either party until February 25, 2004, when Defendant filed a motion for contempt alleging that the Plaintiff had failed to comply with the court’s order. The contempt matter was set for hearing on March 12, 2004. Thereafter, on March 19, 2004, an agreed order was entered providing in pertinent part as follows:

The Defendant/Counter-Plaintiff, Kristi Barth is entitled to pre-judgment interest at the statutory rate of ten percent per annum on the principle [sic] of $144,000.00, or the actual earnings by the principle [sic], whichever amount is greater, from the date the life insurance proceeds were transferred to the Plaintiff/Counter-Defendant, Susan Hutche-son.
The Plaintiff/Counter-Defendant, Susan Hutcheson, shall, within 14 days of the entry of this Order, provide Counsel for the Defendant/Counter-Plaintiff statements indicating the actual earnings earned by the principle [sic].
The Plaintiff/Counter-Defendant, Susan Hutcheson, shall pay all interest or earnings owed to the Defendant/Counter-Plaintiff within 30 days of the entry of this Order.

(Numbering in original omitted).

Plaintiffs notice of appeal, filed on April 19, 2003, stated that Plaintiff “tenders her Notice of her intent to appeal the Court’s decision in the above-styled matter, which decision became ripe for appeal on March 19, 2004 by entry of an Order which disposed of all issues raised in the original pleadings.”

The Defendant filed a motion in this court “to dismiss frivolous appeal” and alleged that judgment was entered against Plaintiff on January 15, 2004; that this judgment was not appealed; that Plaintiff refused to comply with the order; that Defendant filed a motion for contempt; that counsel for Plaintiff upon his own initiative drafted an agreed order resolving all issues surrounding payment of the funds; and that Plaintiff refused to comply with the terms established by the agreed order and filed an appeal on April 19, 2004.

In an appeal as of right to this Court, Rule 4 of the Tennessee Rules of Appellate Procedure provides that the notice of appeal “shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from.” The notice of appeal requirement is jurisdictional and mandatory in all civil cases. If the notice of appeal is not filed as required by Rule 4, an appellate court is without jurisdiction to hear the issues raised on the defective appeal. This Court is not authorized to permit the extension of time for filing a notice of appeal.

It is clear from a review of the record that the order granting Defendant’s motion for summary judgment adjudicated all the claims of the parties. The order granting the motion for summary judgment granted Defendant all the relief she had sought in her counter-complaint. This order was clearly a final order. It was not an order that did not adjudicate all the claims of the parties as referred to in Rule 54.02 of the Tennessee Rules of Civil Procedure. The March 19, 2004 agreed order did grant the Defendant pre-judgment interest, but this relief had not been requested by the Defendant in her pleadings and was not a “claim” that the trial court failed to adjudicate. The January 15, 2004 order became final on February 15, 2004. The March 19, 2004 order which granted Defendant pre-judgment interest did not operate to deprive the January 15, 2004 order of its finality. The notice of appeal would have been timely filed only as to the March 19, 2004 order, but the propriety of the agreed order awarding pre-judgment interest is not an issue Plaintiff raises on appeal.

This Court is without jurisdiction to hear any issues raised by Plaintiff in this matter because the notice of appeal was not timely filed. Because we have no appellate jurisdiction to consider the issues raised by the Plaintiff, this appeal is dismissed and the judgment of the trial court is affirmed. Costs on appeal are taxed to the Appellant, Susan Hutcheson, and this case is remanded to the trial court for enforcement of the trial court’s judgment and for collection of costs.

      . Dewees v. Sweeney, 947 S.W.2d 861, 863 (Tenn.Ct.App.1996).

      . Id. at 864.

      . Rule 21(b) of the Tennessee Rules of Appellate Procedure.


author: JERRY L. SMITH, J.,

text:
    STATE of Tennessee v. Derwood S. KENDRICK.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    March 22, 2005 Session.
    July 5, 2005.
    Application for Permission to Appeal Denied by Supreme Court Sept. 6, 2005.

      Daniel J. Ripper, Chattanooga, Tennessee, for the Appellant, Derwood S. Kendrick.
    Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Bill Cox, District Attorney General; Rodney C. Strong, Assistant District Attorneys General, for the appel-lee, State of Tennessee.
   OPINION

JERRY L. SMITH, J.,

delivered the opinion of the court,

in which DAVID G. HAYES and JAMES CURWOOD WITT, JR., JJ., joined.

The defendant, Derwood Scott Kendrick, was on probation for several convictions of attempted misapplication of contract funds and one (1) conviction of illegal voting. While on probation, the defendant was arrested for theft, misapplication of contract funds and passing worthless checks. The trial court held a probation revocation hearing. At the conclusion of the hearing, the trial court revoked the defendant’s probation. The defendant appealed this revocation on the grounds that: (I) the trial court erred in refusing to divest the media privilege for a news reporter and (2) there was insufficient evidence for the trial court to revoke his probation. We have analyzed the issues and find that the trial court did not err in refusing to divest the media privilege. However, we also find that the evidence does not support the revocation of the defendant’s probation. We affirm in part and reverse in part the decision of the trial court, and remand for further proceedings in accordance with this opinion.

Factual Background

The defendant pled guilty to multiple counts of attempted misapplication of contract funds and one (1) count of illegal voting on August 1, 2002. The trial court sentenced the defendant to two (2) years for the illegal voting conviction and eleven (II) months and twenty-nine (29) days for each attempted misapplication of contract funds conviction. These sentences were to run consecutively to each other and consecutively to a previous ten (10) year sentence for theft by conversion of contract funds in Georgia. These sentences were all suspended and the defendant was placed on supervised probation for a period of five (5) years and 361 days.

Following the guilty plea, and while on probation, the defendant entered into other construction contracts. In June or July of 2003, Kenny Wilhoite entered into a contract with the defendant for the defendant to build a full garage with an upstairs for $22,000. The contract provided that Mr. Wilhoite would pay the defendant four (4) payments of $5,500 each at different points during the construction. The first payment was due at the signing of the contract, the second was due upon completion of the foundation, driveway apron, and floor of the garage, the third installment was due upon completion of the framing and the fourth was due upon completion of the job. Mr. Wilhoite paid the defendant the initial $5,500 and an additional payment of $7,500. However, the defendant did not complete the portion of the job required for the second payment. The defendant poured the concrete pad, put up two (2) walls of the foundation block and threw some lumber in the yard. The defendant never finished the driveway apron or any other work.

Daniel Bender was a subcontractor for the defendant during the job for Mr. Wil-hoite. He worked on Mr. Wilhoite’s garage for a week. He had also worked for the defendant on other occasions. The defendant did not pay Mr. Bender for all of the work he performed on various jobs. Mr. Bender is unable to ascertain whether he was paid in full for the work he performed at Mr. Wilhoite’s house because payment for his work for the defendant was not broken down by the job.

Lucy Wright also entered a contract with the defendant on November 17, 2003. The contract was for the defendant to remodel her bathroom for $7,950. Ms. Wright paid the defendant half of the total price at the beginning of the transaction. The agreement was for the defendant to begin the project by December 1, but preferably before Thanksgiving. The defendant did not start the project by December 1. He did arrive to work on the bathroom on December 6. The defendant ripped everything out of the bathroom and left a hole in the bathroom floor through which cold air was entering the house. The defendant left the materials from Ms. Wright’s bathroom in a pile in her driveway and in the cul-de-sac of her street. On the Wednesday following the defendant’s demolition of her bathroom, she saw on the news that the defendant had been arrested.

A probation violation warrant was issued against the defendant on December 10, 2003. The probation violation report stated that the defendant had been arrested on new charges of theft, felonious misapplication of contract funds, and passing worthless checks. The trial court held a hearing on September 7, 2004. As a result of this hearing, the trial court revoked the defendant’s probation. The defendant filed a timely notice of appeal.

ANALYSIS

The defendant argues two (2) issues on appeal: (1) whether the trial court erred in refusing to divest the media privilege asserted by Calvin Sneed in response to the Defendant’s subpoena; and (2) whether the trial court erred by revoking the defendant’s probation when there was insufficient evidence for the court to do so.

Media Privilege

Calvin Sneed, a reporter with News Channel 9 in Chattanooga, investigated a dispute between the defendant, operating as Paxton Builders, and Ms. Teresa LeCroy. Apparently, Ms. LeCroy hired the defendant to complete some flood repair work. This report aired on Mr. Sneed’s show “ConsumerWatch.” Mr. Sneed indicated in his news report that Ms. LeCroy received a partial refund as a result of the news investigation. The defendant issued a subpoena for Mr. Sneed prior to his probation revocation hearing. This subpoena requested Mr. Sneed to bring “[a]ny and all materials which includes but is not limited to your journalistic investigation regarding the segment that News Channel 9 aired involving Teresa LeCroy and Paxton Builders.” Mr. Sneed asserted the media privilege, and the defendant subsequently moved to divest the privilege. The defendant argued that Mr. Sneed’s media privilege should be divested because the reporter actually mediated a resolution of the dispute between Ms. LeCroy and the defendant. The defendant also maintained that there was no alternative means of obtaining the information that Mr. Sneed discovered. The trial court refused to divest Mr. Sneed of his media privilege.

The media privilege is found at Tennessee Code Annotated section 24-1-208. It states:

A person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast, shall not be required by court, a grand jury, the general assembly, or any administrative body, to disclose before the general assembly or any Tennessee court, grand jury, agency, department, or commission any information or the source of any information procured for publication or broadcast.

Tenn.Code Ann. § 24-l-208(a). Our supreme court interpreted this statute to protect both confidential and non-confidential information collected for publication or broadcast. Austin v. Memphis Pub. Co., 655 S.W.2d 146, 149-50 (Tenn.1983). For an individual to successfiilly divest the media privilege the trial court must find that the individual has shown three (3) factors by clear and convincing evidence:

(A)There is probable cause to believe that the person from whom the information is sought has information which is clearly relevant to a specific probable violation of law;
(B) The person has demonstrated that the information sought cannot reasonably be obtained by alternative means; and
(C) The person has demonstrated a compelling and overriding public interest of the people of the state of Tennessee in the information.

Tenn.Code Ann. § 24-l-208(c)(2)(A)-(C).

At the beginning of the probation revocation hearing, this issue was argued in the trial court. After healing arguments from both sides, the trial court stated, “I’m going to find that, in my judgment, the mediation process was a part of the gathering process and that there’s, there is no exception there, and I’m going to find that 2 and — (2)(A) and (2)(B) are not, not complied with and, therefore, I should leave the, the immunity intact.”

The defendant argues that the information he seeks from Mr. Sneed is not within the information protected by Tennessee Code Annotated section 24-1-208. He argues that Mr. Sneed involved himself as a go-between in the dispute between the defendant and Ms. LeCroy and therefore, was not procuring information for broadcast. The defendant also states that when Mr. Sneed began to mediate the dispute, he became an active player in the dispute such that he was directly affecting the outcome of the situation.

The defendant does not cite to any case-law to support his position that Mr. Sneed’s involvement in a resolution of a contract dispute negates the media privilege. However, it appears from our supreme court’s interpretation of the statute that the privilege applies to a wide category of information. The statute states that a trial court cannot require a person employed by the news media to disclose “any information or the source of any information procured for publication or broadcast.” Tenn.Code Ann. § 24-l-208(a). When interpreting this statute, our supreme court stated, “[t]he non-specific adjective ‘any means ‘all.’ ” Therefore, so long as Mr. Sneed was collecting the information pertaining to the defendant’s and Ms. LeCroy’s dispute for broadcast on his report, we conclude that the information is protected by the media privilege, whether Sneed helped negotiate a settlement or not. The transcript of Mr. Sneed’s report clearly references a settlement between the defendant and Ms. LeCroy. Therefore, this information is subject to protection by the media privilege.

In addition, we agree with the trial court that the defendant has not proven the criteria set out in the statute to divest the media privilege. First, the defendant’s probation revocation hearing involved his dealings with Mr. Wilhoite, Mr. Bender and Ms. Wright. The defendant’s dispute with Ms. LeCroy was never brought up at the hearing as evidence to revoke the defendant’s probation. Therefore, the defendant has not proven that Mr. Sneed’s knowledge of the dispute between the defendant and Ms. LeCroy was relevant at the probation revocation proceeding. Second, the defendant has not proven that Mr. Sneed is the only source of the information as required by Tennessee Code Annotated section 24-10-208(c)(2)(B). The defendant could have easily called the defendant or Ms. LeCroy to testify about the information gathered by Mr. Sneed. Third, the defendant has not established that there is a compelling and overriding public interest in the information.

Because we agree with the trial court that the defendant has not proven the three (3) requirements set out in Tennessee Code Annotated section 24 — 1—208(c)(2) to divest the media privilege, we affirm the judgment of the trial court on this issue.

Probation Revocation

A trial court may revoke probation and order the imposition of the original sentence upon a finding by a preponderance of the evidence that the person has violated a condition of probation. TenmCode Ann. §§ 40-35-310 & -311. The decision to revoke probation rests within the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.Crim.App.1991). Revocation of probation and a community corrections sentence is subject to an abuse of discretion standard of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.1991). In other words, in order for this Court to find that the trial court abused its discretion, the record must contain no substantial evidence to support the trial court’s conclusion that a probation violation occurred and that, as a result of that violation, probation should be revoked. Id.; see also State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn.Crim.App.1997).

We conclude that there was insufficient evidence to show that the defendant violated a condition of his probation. The defendant was charged with theft, misapplication of contract funds and passing worthless checks. At the conclusion of the probation hearing the trial court stated, “I think that the proof does establish a pattern of conduct sufficient for me to conclude that he’s been engaging in a series of thefts, and I’m going to revoke his probation .... ” We disagree with the trial court’s conclusion.

The State was required to prove by a preponderance of • the evidence that the defendant violated a condition of his probation. One condition of his probation was that the defendant not disobey.the law. The defendant was charged with theft of property, felonious misapplication of contract funds and passing worthless checks. The State has not proven by a preponderance of the evidence that the defendant received money from Mr. Wilhoite, but did not perform the work to earn that money. The defendant did actually perform a portion of the work he asked the defendant to perform. The second payment for a increase in costs was not an objectionable amount, nor is it unheard of in a construction situation for previously unexpected costs to arise.

The State proved that the defendant did not pay Mr. Bender for all the work that he performed as a subcontractor. However, we are unable conclude that the testimony at the hearing by the witnesses proves by a preponderance of the evidence that the defendant misapplied contract funds while on probation. Because Mr. Bender was unable to testify for which jobs the defendant failed to pay him, we are unable to conclude when the jobs were completed for which Mr. Bender was not paid.

More importantly, the State has not proven the elements required under Tennessee Code Annotated section 66-11-138 which makes misapplication of contract funds a crime. The statute reads:

Any contractor, subcontractor, or other person who, with intent to defraud, uses the proceeds of any payment made to that person on account of improving certain real property for any other purpose than to pay for labor performed on, or materials furnished by that person’s order for, this specific improvement, while any amount for which such person may be or become liable for such labor or materials remains unpaid, commits a Class E felony.

TenmCode Ann. § 66-ll-138(a). The State did not prove in its case how the defendant used any misapplied funds, if there were any. Because there is no proof that the defendant used the funds inappropriately, we cannot conclude that he has used those funds for other than the work he performed at for his contractual obligations. Moreover, there is not evidence in the record to establish the crime of theft.

While it appears that the defendant may not be the most desirable person with whom to conduct business, we find that the evidence presented in this record does not preponderate in favor of a finding that the defendant violated any criminal laws.

Because the preponderance of the evidence does not support a finding that the defendant disobeyed the law, we reverse the trial court’s revocation of the defendant’s probation.

CONCLUSION

For the reasons stated above, we affirm in part and reverse in part and remand for further proceedings in accordance with this opinion.


author: JERRY L. SMITH, J„

text:
    STATE of Tennessee v. Frazier Fashun PERRY.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Assigned on Briefs Nov. 2, 2004.
    March 18, 2005.
    Application for Permission to Appeal Denied by Supreme Court Aug. 22, 2005.

      Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), Jim W. Horner, District Public Defender and H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee (at trial), for the appellant, Frazier Fashun Perry.
    Paul G. Summers, Attorney General <& Reporter; Seth P. Kestner, Assistant Attorney General; Phillip Bivens, District Attorney General; and Karen Burns, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JERRY L. SMITH, J„

delivered the opinion of the court,

in which ROBERT W. WEDEMEYER and J.C. McLIN, JJ., joined.

The appellant, Frazier Fashun Perry, was indicted for: (1) possession of cocaine over .5 grams with the intent to sell or deliver; (2) possession of marijuana over one-half ounce with the intent to sell or deliver; and (3) being a drug felon in possession of a handgun. The appellant filed a motion to suppress the items seized as a result of the execution of a “no knock” search warrant. The trial court denied the motion to suppress and the appellant entered a guilty plea to possession of more than .5 grams of cocaine with the intent to resell, a Class B felony. As part of the plea agreement, the appellant reserved a certified question of law to determine whether exigent circumstances existed to justify execution of the “no knock” search warrant in violation of Tennessee Rules of Criminal Procedure 41(e). The appellant filed a timely notice of appeal. We determine that the trial court did not err in denying the motion to suppress as the State proved that exigent circumstances existed which justified the issuance of a “no knock” search warrant. Therefore, we affirm the judgment of the trial court.

Factual Background

On March 25, 2002, Officer Jim Joyner of the Dyersburg Police Department completed an affidavit for a search warrant of the residence of the appellant upon belief that the appellant had cocaine, marijuana and drug paraphernalia inside. The search warrant was based on information from a reliable confidential informant that the appellant was “in possession of a quantity of cocaine and marijuana at his residence.” According to the affidavit, the confidential informant also notified Officer Joyner that the appellant had a surveillance camera outside his residence and could easily dispose of the drugs inside when he saw law enforcement officers approach his residence. As a result of the information from the confidential informant, Officer Joyner requested a “no knock” warrant. The search warrant was issued and the police executed the warrant later that same day. As a result, the police confiscated $1,430 in cash, two (2) bags containing several rocks of suspected crack cocaine, a .32 caliber pistol, twenty (20) rounds of ammunition, two (2) small bags of marijuana, one (1) large bag of marijuana, one (1) television, one (1) surveillance camera, two (2) rent receipts, and one (1) pay stub. The appellant was arrested and later indicted by the Dyer County Grand Jury in a multi-count indictment for possession of cocaine over .5 grams with the intent to sell or deliver, possession of over one-half an ounce of marijuana with the intent to sell or deliver and possession of a handgun after having been convicted of a felony drug offense.

The appellant subsequently filed a motion to suppress the evidence seized from the execution of the search warrant. At the hearing on the motion to suppress, Officer Joyner testified about the basis for the search warrant. He testified that the confidential informant told him about the surveillance camera at the appellant’s residence. He also stated that he had personally seen a surveillance camera on the appellant’s house and that, based on his experience, this type of surveillance system would allow the appellant to see law enforcement officers coming up to his house in enough time to dispose of evidence.

Officer Joyner also stated that the surveillance system had a motion detector alarm and that any motion outside would cause the system in the house to beep, thus allowing the appellant to know that someone was moving up to his house even if he was not watching the surveillance screen. Officer Joyner testified that when the search warrant was executed, the monitor to the surveillance system was on and that the appellant had the ability to see “from the front of the house all the way to the street.”

According to Officer Joyner, when the warrant was executed, the appellant’s front door was unlocked, the main door was partially open and the screen door was closed. Officer Joyner testified that the officers identified themselves and announced that they had a search warrant as soon as they entered the home and that there was no damage done to the home as a result of executing the search warrant. The appellant was located inside the residence in a bedroom with the surveillance equipment. The drugs were found in a box in the closet in that same room.

Officer Chris Hamm of the Dyersburg Police Department stated that there were approximately five (5) officers present when the warrant was executed and that two (2) of the officers were in street clothes while three (3) or four (4) of the officers were in their police uniforms. Officer Hamm noticed the camera outside the house when the officers were preparing to execute the warrant. He testified that the “no knock” warrant was based on the existence of the surveillance camera and the ease in which the appellant could have destroyed the evidence.

Officer Mark Reynolds also testified at the suppression hearing and corroborated the testimony of the other officers. In his opinion, the “no knock” warrant was issued based on the presence of the surveillance camera, the appellant’s resulting ability to identify the officers as they approached the residence and the ease in which the appellant could dispose of the drugs.

At the conclusion of the hearing, the trial court denied the motion to suppress and determined that there were:

[R]easonable suspicions of exigent circumstances that would warrant a no knock in this situation and that is the information that was given by the informant, that had proven to be a reliable informant, that the material was there, but also that the surveillance equipment was available. This surveillance equipment was certainly seen and noted by the officers as they approached the house. It’s — you have surveillance equipment inside businesses. And you have equipment, you know, motion detectors inside houses. But first I’ve ever heard of one on the outside of the house. I think the reasonable suspicion — There is reasonable suspicion based under the circumstances that warrants the no knock entry.

After the trial court denied the motion to suppress, the appellant pled guilty to possession of cocaine over .5 grams with the intent to sell in violation of Tennessee Code Annotated section 39-17-417. The appellant agreed to an eight-year sentence and dismissal of the two (2) remaining charges as well as the reservation of the following certified question of law: “Whether exigent circumstances existed in this cause to justify execution of a ‘no-knock’ search warrant in violation of T.R.C.P. 41(e)?”

The appellant filed a timely notice of appeal.

Motion to Suppress

As framed by the certified question of law, the sole issue on appeal is propriety of the “no knock” search. The appellant argues that there is no exception to the “knock and announce” rule present herein that would justify the execution of a “no knock” warrant. The State counters that the motion to suppress was properly denied by the trial court.

At the outset, we note that “a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). As is customary, “the prevailing party in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.’ ” State v. Carter, 16 S.W.3d 762, 765 (Tenn.2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn.1998)). “The application of the law to the facts found by the trial court, however, is a question of law which this Court reviews de novo.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

We further observe that an affidavit establishing probable cause is an indispensable prerequisite to the issuance of a search warrant. See, e.g., Tenn.Code. Ann. § 40-6-103; Tenn. R.Crim. P. 41(c); State v. Henning, 975 S.W.2d 290, 294 (Tenn.1998); State v. Moon, 841 S.W.2d 336, 338 (Tenn.Crim.App.1992). Such probable cause “must appear in the affidavit [itself] and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant.” Moon, 841 S.W.2d at 338; see also Henning, 975 S.W.2d at 295. To sufficiently make a showing of probable cause, an affidavit “must set forth facts from which a reasonable conclusion might be drawn that the evidence is in the place to be searched.” State v. Smith, 868 S.W.2d 561, 572 (Tenn.1993). However, a decision regarding the existence of probable cause requires that the affidavit contain “more than mere conclusory allegations by the affiant.” State v. Stevens, 989 S.W.2d 290, 293 (Tenn.1999); see also Moon, 841 S.W.2d at 338.

Furthermore, when “probable cause for a search is based upon information from a confidential informant, there must be a showing in the affidavit of both (1) the informant’s basis of knowledge and (2) his or her veracity.” State v. Powell, 53 S.W.3d 258, 262 (Tenn.Crim.App.2000); see also State v. Jacumin, 778 S.W.2d 430, 432, 435-36 (Tenn.1989) (utilizing the standard set out in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)). To sufficiently make such showings, the affidavit must include facts permitting “the magistrate to determine: (1) whether the informant had a basis for his information that a certain person had been, was, or would be involved in criminal conduct or that evidence of crime would be found at a certain place” and (2) whether the informant is inherently credible or “the reliability of his information on the particular occasion.” Moon, 841 S.W.2d at 338. Again, the courts have stressed that conclusory statements absent supportive detail will not suffice to establish these requirements. See, e.g., Id. at 339. However, “independent police corroboration” may compensate for such deficiencies. See Jacumin, 778 S.W.2d at 436; Moon, 841 S.W.2d at 340.

In the case herein, the appellant does not challenge the validity of the affidavit used to procure the search warrant, but rather the manner of execution of the warrant as a “no knock” warrant. Rule 41(e) of the Tennessee Rules of Criminal Procedure provides:

(e) Authority to Break In. If after notice of authority and purpose a peace officer is not granted admittance, or in the absence of anyone with authority to grant admittance, a peace officer with a search warrant may break open any door or window of a building or vehicle, or any part thereof, described to be searched in the warrant to the extent that it is reasonably necessary to execute the warrant and does not unnecessarily damage the property.

Tenn. R.Crim. P. 41(e). Thus, a law enforcement officer who is charged with the execution of a search warrant must give: (1) notice of his authority; and (2) the purpose of his presence at the structure to be searched. State v. Lee, 836 S.W.2d 126 (Tenn.Crim.App.1991); State v. Fletcher, 789 S.W.2d 565 (Tenn.Crim.App.1990). The “knock and announce” rule serves three purposes. First, the rule provides a form of protection from violence and assures the safety and security of both the occupants of the dwelling and the officers executing the search warrant. Lee, 836 S.W.2d at 128. Second, the rule protects the privacy of the occupant living in the dwelling. Id. Third, the rule prevents needless destruction of property. Id.

The State correctly recognizes in its brief that the United States Supreme Court has concluded that the common law “knock and announce” procedure is a factor to consider in assessing the reasonableness of a search or seizure under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 933-34, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The “knock and announce” requirement is not without exception, when exigent circumstances exist. In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Supreme Court held:

In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the cíame by, for example, allowing the destruction of evidence.

Id. at 394,117 S.Ct. 1416.

The failure to comply with the provisions of Tennessee Rule of Criminal Procedure 41(e), absent exigent circumstances, “results in the exclusion of any evidence seized under color of the [search] warrant.” State v. Curtis, 964 S.W.2d 604, 609 (Tenn.Crim.App.1997). There are, however, exceptions to the rule requiring a reasonable waiting period:

Compliance is not required if knocking and announcing would increase the officer’s peril, or if an officer executing a warrant perceives indications of flight or indications that evidence is being destroyed. ... These are contingencies excusing compliance.

Henning, 975 S.W.2d at 299-300 (citations omitted). The State has the burden of establishing facts and circumstances which constitute exigent circumstances. The State must establish “more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and announcing their presence.” Curtis, 964 S.W.2d at 610 (quoting Bates, 84 F.3d at 795). Exigent circumstances cannot be found by a court if the circumstances are predicated upon general fears of the officers executing the search warrant. Id. Further, officers may not create exigent circumstances as a subterfuge for entering a residence without complying with the “knock and announce” rule. Id.

As a general rule, it is sufficient for the state to show that (a) a person within the dwelling knows of the officer’s authority and purpose; (b) the officers have a justified belief someone within the dwelling is in immediate peril of bodily harm; (c) the officers have a justified belief those inside the dwelling are aware of their presence and are engaged in escape or the destruction of evidence; (d) a person inside the dwelling is armed and is either likely to use the weapon or become violent; or (e) a person inside the dwelling has threatened an officer’s safety, possesses a criminal record reflecting violent tendencies, or has a verified reputation of a violent nature.

Id.

In Henning, our supreme court upheld a search when the defendant, who had just completed a drug transaction, saw an officer approaching and fled towards his residence, falling into the doorway just as the officer made contact. 975 S.W.2d at 300. The officer, who had a search warrant for the residence of the defendant, was excused under those circumstances from formally complying with the knock and announce rule. Id.

In the case at issue, the evidence provided at the hearing on the motion to suppress established that Officer Joyner received information from a confidential informant that the appellant had drugs inside his house, and that the appellant’s residence was equipped with a surveillance system and that any evidence could be destroyed quickly due to the appellant’s ability to monitor the activity outside the residence.

In our assessment, the State met its burden of proving exigent circumstances. As we have stated previously, a “no knock” warrant is appropriate when “the officers have a justified belief those inside the dwelling are aware of their presence and are engaged in escape or the destruction of evidence.” Curtis, 964 S.W.2d at 610. The appellant had a surveillance camera as well as motion detecting equipment so that he could monitor people approaching his residence even if he was not looking at the surveillance monitor. We feel that there is a definite relationship between the existence of surveillance equipment and the justification for a “no knock” warrant. As a result of the equipment he had at his residence, the appellant had the ability to not only protect his drugs from other people but to monitor any people approaching his residence so that he could take, precautions, including destroying the drugs, prior to their arrival. For these reasons, the officers had .a reasonable fear that the longer they took to execute the warrant by following the traditional “knock and announce” rule, the more opportunity the appellant had to dispose of the evidence. Exigent circumstances existed which justified the issuance of the “no knock” warrant. Therefore, the search of the residence and the seizure of the cocaine, marijuana, and handgun were constitutionally reasonable pursuant to the Tennessee Constitution and the Fourth Amendment to the United States Constitution. The trial court properly denied the motion to suppress. Accordingly, we affirm the judgment of the trial court denying the motion to suppress.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

      . In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the Aguilar-Spinelli two-pronged test for evaluating the sufficiency of an affidavit involving a confidential informant. Gates, 462 U.S. at 238, 103 S.Ct. 2317. However, the Tennessee Supreme Court subsequently concluded that Aguilar-Spinelli "properly applied provide[s] a more appropriate structure for probable cause inquiries incident to the issuance of a search warrant ... [and] is more in keeping with the specific requirement of Article 1, Section 7 of the Tennessee Constitution that a search warrant not issue 'without evidence of the fact committed.' ” Jacumin, 778 S.W.2d at 436.

      . We feel compelled to note that the supreme court's recent opinion in State v. Carter, 160 S.W.3d 526 (Tenn., 2005) does not apply to the case herein because the police officers were in possession of a search warrant at the time of their entry into the appellant’s residence.