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Armstrong v. Morrison

Court of Appeals of Tennessee, Knoxville

November 7, 2019

KAY ARMSTRONG
v.
KEVIN C. MORRISON

          Session October 16, 2019

          Appeal from the Chancery Court for Greene County No. 2017-CV-316 John C. Rambo, Chancellor [1]

         This appeal concerns a clerk and master's petition for additional staff. Kay Solomon Armstrong, Clerk and Master of Greene County ("Petitioner"), filed a petition against the County Mayor ("Defendant") in the Chancery Court for Greene County ("the Trial Court") seeking additional staff for her office.[2] After a trial, the Trial Court entered an order replacing one half-time position in the office with one full-time position. The Trial Court also awarded Petitioner attorney's fees and expenses to be paid from the fees of the Clerk and Master's Office. Defendant appeals to this Court, arguing that the evidence preponderates against the Trial Court's decision to award additional funding for a new full-time assistant to replace a half-time assistant and that Petitioner was not entitled to recover any attorney's fees. We hold that reasonable attorney's fees were recoverable by Petitioner pursuant to statute. We hold further that the evidence does not preponderate against the Trial Court's factual findings, including the Trial Court's core finding that Petitioner's workspace is so structurally inefficient that her office requires more staff. We modify the Trial Court's order on fees and expenses to the extent it failed to award Petitioner expenses she paid out of pocket. On remand, the Trial Court is to determine and enter an award including reimbursing Petitioner for her reasonable out-of-pocket fees and expenses. We affirm, as modified, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed, as Modified; Case Remanded.

          Mark S. Dessauer and Suzanne S. Cook, Kingsport, Tennessee, for the appellant, Kevin C. Morrison, in his official capacity as Mayor of Greene County, Tennessee.

          Matthew A. Grossman and Kevin A. Dean, Knoxville, Tennessee, and, James R. Wheeler, Jonesborough, Tennessee, for the appellee, Kay Solomon Armstrong, in her official capacity as Clerk and Master of Greene County, Tennessee.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Andy D. Bennett and John W. McClarty, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         In August 2017, Petitioner sued Defendant in the Trial Court seeking more funding for staff than the Greene County Commission provided in the 2017-2018 budget. The Greene County Clerk and Master's Office had five full-time employees and one half-time employee. Petitioner sought one new full-time employee as well as another part-time employee. Petitioner's dual-pronged argument for additional staff was that (1) she has lost experienced personnel in recent times and (2) that the physical layout of her office located in a nineteenth century courthouse basement is unconducive to efficiency. Defendant, in response, has argued throughout that Petitioner does not need any additional staff. Defendant also has pointed to Petitioner's previous policy of closing her office to the public on Wednesdays as evidence that Petitioner and her staff have failed to attend to their duties. Petitioner contends those closures were necessary to complete the work of the Clerk and Master's Office. The proceedings became contentious, and Mayor David Crum's attorney, Suzanne Cook, filed a BPR complaint against Petitioner's attorney, Matthew Grossman, for addressing the Greene County Commission with Mayor Crum present outside the presence of the Mayor's counsel. That complaint later was dismissed.

         This case was tried on March 27 and 28, 2018, and April 10 and 13, 2018. We quote some of the most pertinent testimony from trial. Barbara Tallent ("Tallent"), an interior designer, testified for Petitioner regarding the physical structure of the Greene County Clerk and Master's office and its detrimental effect on the staff's efficiency:

Q. And I believe the -- the question was could you compare the Greene County Clerk and Master space to what the -- to what the, pardon me, what the Clerk and Master has here in Washington County? A. Certainly. I did have the opportunity to walk through the space but even if I hadn't gone behind the glass I could easily have observed that the sight lines are 180 degrees better than what they are in Greene County. I wouldn't want anybody to think that the Greene County situation looks anything like it does here. The two could not be more different. If you'll notice, maybe on break, every staff member there has a sight line to the front counter and the counters are at different heights for wheelchair accessibility, standing height. I mean, it's -- it's a great layout. Even as you work through the department you'll see people in private offices who also have glass fronts to their offices, again so that they can maintain visibility. They will see if someone has left the front counter and they'll know that they need to staff that window. It's also greater auditory communication. You're not trying to strain to hear what's going on and that's a great assistance in training people. You know, you -- you learn a lot just by hearing how someone else is dealing with a situation. And cross-training and covering for one another is better enabled that way. So what you see here is a great example of more modern design approaches that we do day in, day out for offices now, whether it be banks, utility districts, government offices. Anyone that deals with the public those sight lines are absolutely critical. It's -- it's probably the number one programing criteria that we're asked for when designing for offices like this.
***
Q. . . . Do you have any opinion as to if the Greene County Clerk and Master had a space that was situated more like the Washington County Clerk and Master how would that affect Ms. Armstrong's staffing needs? A. In my opinion I believe the current staff that she has would be better accommodated in an office such as the Washington County Clerk and Master's office. In her current office environment it is understandable that it would require more staff to do the same duties, given the floor plan.

         On cross-examination, Tallent was pressed on whether the problem was Petitioner's workspace or Petitioner's ability to manage her office:

Q. As I understand your testimony, you're not saying Ms. Armstrong needs more staff, are you?
A. Actually I am.
Q. But aren't you also saying that if there were more staff in that office it would be more inefficient?
A. No. I'm saying that having more staff would allow them to perform the duties that they are required to do which would -- the most primary is to service the -- the walk-up customers at those windows.
Q. Did you do any analysis of what other factors might impact workplace efficiency in any given environment?
A. As it pertains to this specific project, yes.
Q. Okay. What else did you -- what other factors did you review?
A. Other factors are, for example, where their filing is. Currently it's spread throughout the building even as far as to the attic which lets me know there -- say for example, someone needs to pull a file, they not only have to leave the department, they may have to leave the floor and that creates a longer time when someone is away from their desk or away from their window.
Q. Doesn't that relate to the management of the space as opposed to the space itself?
A. I wouldn't think so. There's nowhere for all of their files to be housed within the department.
Q. Wouldn't you agree, ma'am, that there are a number of things that impact workplace productivity and employee efficiency other than the configuration of the office space?
A. I would agree.
Q. For example, the work ethic of your employees?
A. I would agree.
Q. You did no analysis of that, did you, ma'am?
A. Only observation.
Q. And would you also agree effective management impacts workplace productivity?
A. Absolutely.
Q. Did you do any analysis or review of Ms. -- Ms. Armstrong's policies, practice and procedures for employees?
A. I only observed.

         Petitioner took the stand, as well. Petitioner testified that the loss of experienced staff had hindered her office's efficiency as of late:

Q. Between 2016 and the present -- well, in -- in Fiscal Year 2016 beginning or we'll say '15/16, what was approximately your total tenure of your staff?
A. Chancellor, I -- I might have to look at my notes but I recall in 2015 my total years of experience was 103. My lawyer will probably tell me if I'm wrong because he probably knows the number but 103 years in 2015/16.
Q. And what's -- what's the total tenure of your staff as we sit here today?
A. Not counting me it's 43 years so that's a difference -- I think that's somewhere like 58 percent of loss.
The Court: Your years of experience is not in the 103, right?
The Witness: No, sir.
The Court: Okay.
By Mr. Grossman:
Q. And I guess -- I guess, Your Honor, if you -- how -- how many years have you been in the post?
A. I'm in my 26th year.
Q. So obviously I guess adding -- adding that to both the 103 number and the 43 number would make that -- roughly figure that out, what percentage are you still losing?
A. Approximately 50 percent.
Q. What is the biggest problem that has resulted from this staffing -- from this loss of tenured staff?
A. I can't get the work done, Chancellor. I can't provide the service I need to provide in the manner the taxpayer is accustomed to and I can't serve my bench in the manner my judge is used to. I can't meet the deadlines and I -- I have realized the worst this -- the more time passes the worse it gets and that creates more potential liability for my county if some -- if there is a failure, if there's something missed.
Q. About how long does it take to replace tenured staff -- well, let me ask -- let me ask a different way. Is -- how easy is it [to] replace tenured staff with -- with someone who can jump right into the position?
A. In Greene County it's almost impossible. I have lived this for 26 years and I've seen people come and I've seen people go. When Tonya left after being there 11 years -- she wasn't the excellent employee she was when she left when she first started. It -- it -- and she's smart girl and the Circuit Clerk is blessed to have her but it took her over five years to get to that level of efficiency. So by my evaluation, having lived this for 26 years, if you have a tenured person of 10 years, one decade, and they leave, they leave and you need to replace them with a human plus a half of another. When Russell Wexler died in -- suddenly in 2016, him being there 25 years, that's two decades, we need two halves or one whole to replace him, not just his position but another whole human. And then, now we have Jeanne Tweed having retired as her notice dated March the 21st of this year, she's in her 32nd year. That's three decades. That is one and a half positions by my evaluation.
Q. Okay.
***
Q. How many hours a week do you normally work? A. More than 40 hours a week do I work. Q. Do you take work home?
A. I take work home. I don't take court files home. I -- I will copy a section or I will take bags or boxes and I will do work after hours at home in particularly because it's less congested at my counter in the morning, I will do work offsite and then arrive at the courthouse after that period of work done. I've even done it in my car. Once you come into that courthouse and you get on that front counter it's like fighting fire. So in order to have uninterrupted thought to work on something more complex, I will hide out for a while or try to work on my forms or try to understand what a new requirement is that I need to address.
Q. Is your cell phone number publically available?
A. Yes. Most members of the bar in Northeast Tennessee I've offered my cell phone number to.
Q. When do you answer that phone?
A. I will answer my personal cell phone 24/7.
Q. Are you able to carry out all of the mandated functions of your office without the assistance of deputies and assistants at this time?
A. Absolutely not.
Q. Are you able to carry out all the mandated functions of your office with the deputies and assistants that are currently provided for in the budget?
A. Absolutely not.
Q. Just briefly tell the Court how your office is functioning.
A. We're not functioning; we're existing. We're taking care of the customer that's right in front of us and we're -- and we're answering the phone. But I am here to ask you, Chancellor, to -- for relief because Greene County doesn't have a Clerk and Master right now. You have a good front counter clerk and I'm not able to attend to my Chancellor and to the other judges in the Third like I had been accustomed and -- and taught to do.
***
Q. And you're asking the Court to authorize the new one -- one full-time and one part-time position as set forth in there? A. Yes, if not more.

         On recross-examination, Petitioner was questioned regarding her practice of performing some of her clerk and master duties from home:

Q. And, ma'am, you were explaining to the Chancellor that you have some pattern of doing work from home and doing emails before you come into the office. You agree with me your staff is in the office, or should be, to have the office up and running by 8:00 in the morning, correct?
A. Yes.
Q. And your staff needs you to be in the office as well doing tasks. In other words, if you're working from home and they're in the office that's not a very efficient operation for you to direct your staff or supervise your staff or deal with problems in the office, is it?
A. It's quite the contrary. To be able to manage a small shop like that and have -- and help them in the more activity part of the day -- the more active part of the day is you -- it's best to be out in the first morning hours as opposed to lunchtime and going after. That's when we're busy. That's when they need the help. That's when they need the managing. That's when the liability is, more after lunchtime and going down, not in the morning. So in an effort to properly manage my office, my Chancellor and the Chancellor before me knows that it's a time to be able to -- to prepare and plan and do the catchup in the early morning time and I stay offsite on purpose.
The Court: Do I understand that you're telling me that the -- both the current and his predecessor Chancellor are aware that you physically did not come into the office until later in the morning on some frequency?
The Witness: Yes.

         Another witness to testify was Attorney Kidwell King ("King"), who practices in Greene County. King testified regarding the performance of the Clerk and Master's Office. King stated, as pertinent:

Q. What kind of challenges can you face when doing investigations of old cases in the Clerk and ...

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