Opinion
M2021-00843-COA-R3-CV
06-02-2023
THOMAS BUILDERS, INC. v. CKF EXCAVATING, LLC
Timothy W. Burrow, Nashville, Tennessee, for the appellant, Thomas Builders, Inc. J. Ross Hutchison, Nashville, Tennessee, for the appellee, CKF Excavating, LLC.
Session May 4, 2022
Appeal from the Chancery Court for Davidson County No. 21-0475-II Anne C. Martin, Chancellor
An arbitrator awarded a subcontractor damages against a general contractor. In chancery court, the general contractor moved to vacate the award on the basis that the arbitrator exceeded his powers. The chancery court denied the motion to vacate and, at the request of the subcontractor, confirmed the arbitration award. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
Timothy W. Burrow, Nashville, Tennessee, for the appellant, Thomas Builders, Inc.
J. Ross Hutchison, Nashville, Tennessee, for the appellee, CKF Excavating, LLC.
W. Neal McBrayer, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., joined. Kenny Armstrong, J., filed a dissenting opinion.
OPINION
W. NEAL McBRAYER, JUDGE
I.
A.
Thomas Builders, Inc. served as the general contractor on a hotel project in Ashland City, Tennessee. It subcontracted grading and undercut work to CKF Excavating, LLC. Under the subcontract, CKF Excavating agreed that it would remove up to 1,000 cubic yards of "unsuitable soils." Unsuitable soils in excess of 1,000 cubic yards would be removed at a rate of $55 per cubic yard.
As the project proceeded, disputes arose between Thomas Builders and CKF Excavating over how much soil was removed in excess of 1,000 cubic yards, the necessity for removal, and payment for that work. When the parties reached an impasse, CKF Excavating stopped work.
The subcontract provided that the parties would arbitrate any claims arising from the subcontract, but it did not specify the arbitral forum or the process for arbitration. After CKF Excavating made its demand for arbitration, the parties signed an arbitration agreement that named an arbitrator and specified the process for arbitration. The agreed process incorporated some of the Construction Industry Arbitration Rules of the American Arbitration Association. Among other rules, the parties agreed that Construction Industry Arbitration Rule 47 would apply. Rule 47 provides in relevant part: "In all cases, unless waived by agreement of the parties, the arbitrator shall provide a concise written financial breakdown of any monetary awards."
CKF Excavating submitted several claims for arbitration. Among others, it claimed damages of $191,490.78 for work performed before it abandoned the project. This amount included $74,022.74 owed to Rogers Group, Inc., a supplier to CKF Excavating. For its part, Thomas Builders submitted a claim for damages in the amount of $163,137.93. Thomas Builders also requested that "for any ruling in favor of either side," the arbitrator "provide any 'conditions' of any such [a]ward regarding [Rogers Group's claim]."
Following three days of hearings, the arbitrator issued an award setting out his findings and reasoning with respect to the parties' claims. The arbitrator concluded that CKF Excavating improperly stopped working on the project. But he also found that, before stopping, CKF Excavating removed unsuitable soils in excess of 1,000 cubic yards and that Thomas Builders knew or should have known about the excess removal. And "such removal was absolutely necessary for the [p]roject to proceed." So the arbitrator awarded CKF Excavating $191,490.78 for the work performed before stopping, which included withheld retainage from previous payments. The arbitrator also ordered that $74,022.74 of the award be placed in an escrow account to guarantee payment of the money owed to Rogers Group.
The arbitrator denied recovery for almost all of Thomas Builders' claims. But it did award Thomas Builders $1,480 for the cost to bond off Rogers Group's lien on the project. The final section of the arbitration award provided:
Summary of Final Award
Based upon all of the above, including all claims and counterclaims, I award as follows:
1. Thomas Builders, Inc. shall pay to CKF Excavating, LLC the amount of $115,988.04 no later than twenty (20) days from the date of this Award (the "Initial Payment");
2. As set forth above, Thomas Builders, Inc. shall pay an additional amount of $74,022.74 into an escrow account to be paid out according to this Award, no later than twenty (20) days from the date of this Award (the "Escrow Payment"); and
3. All costs of this Private Arbitration, including the estimated amounts paid by the parties to the Arbitrator, are not allocated but shall be borne as incurred, and a final accounting shall be timely provided to counsel by the Arbitrator.
So CKF Excavating received the amount it requested for work performed before abandoning the project less the amounts due to its supplier and the cost to bond off the supplier's lien.
Thomas Builders filed a "motion for financial breakdown." It complained that the arbitrator failed to provide a "concise written financial breakdown" as required by Rule 47. And that a breakdown would reveal computational errors made by the arbitrator. But Thomas Builders did not explain what computational errors the arbitrator allegedly made. It also complained that the arbitrator's breakdown should include the amount of unsuitable soils in excess of 1,000 cubic yards removed by CKF Excavating. Thomas Builders claimed that CKF Excavating failed to produce sufficient evidence about the amount of unsuitable soil it removed. And, because CKF Excavating failed to meet its burden, the arbitrator could not provide a breakdown of its award. So, according to Thomas Builders:
the financial breakdown should show "$0" on the line item of unsuitable soils removed above 1,000 [cubic yards], and therefore, the current $191,491.78 award should be reduced by $152,279.82 ($110,000 plus $42,279.82), leaving a ruling of $39,211.96, which would be paid to [Rogers Group].
The arbitrator denied the motion of Thomas Builders.
B.
In the Chancery Court for Davidson County, Tennessee, Thomas Builders moved to vacate the arbitration award. It asserted that the arbitrator exceeded his powers by not providing a financial breakdown of the monetary award. It also asserted that the arbitrator exceeded his powers by making "clearly erroneous factual conclusions as to geotechnical engineering matters" and "the number of cubic yards of unsuitable soils removed" and by "relying on what he believe[d] [wa]s industry-wide knowledge of experts' opinions not given by any qualified witness at the hearing."
Before the Davidson County filing, CKF Excavating filed a motion to confirm the arbitration award in a case filed by Rogers Group in Cheatham County. Rogers Group named both CKF Excavating and Thomas Builders as defendants. The dissent contends that, because of Rogers Group's suit, the prior suit pending doctrine deprived the Chancery Court for Davidson County of subject matter jurisdiction. As Thomas Builders and CKF Excavating argue in their supplemental briefing, the prior suit pending doctrine does not apply. The doctrine requires that both lawsuits concern "identical subject matter." West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 623 (Tenn. 2008). "[T]o determine whether the same subject matter is involved in both suits, a court must consider whether a judgment in the first suit would bar litigation of an issue in the second suit under res judicata principles." Fid. & Guar. Life Ins. Co. v. Corley, No. W2002-02633-COA-R9-CV, 2003 WL 23099685, at *4 (Tenn. Ct. App. Dec. 31, 2003). Under res judicata principles, two suits involve the same cause of action if they concern the same transaction or occurrence. Creech v. Addington, 281 S.W.3d 363, 380-81 (Tenn. 2009) (citing Restatement (Second) of Judgments §24(1)). The arbitration itself is a transaction or occurrence. See Consolidation Coal Co. v. United Mine Workers of Am., Dist. 12, Local Union 1545, 213 F.3d 404, 408 (7th Cir. 2000). While the arbitration award was an issue in both lawsuits, CKF Excavating withdrew its motion to confirm the arbitration award in the Cheatham County case. See Cannon ex rel. Good v. Reddy, 428 S.W.3d 795, 798 (Tenn. 2014) (holding that voluntary dismissal of former suit precludes dismissal of next suit based on prior suit pending doctrine); Walker v. Vandiver, 181 S.W. 310, 311 (Tenn. 1915) (same). The Cheatham County case now concerns only the claims of Rogers Group. So both lawsuits do not concern identical subject matter. Even if the prior suit pending doctrine applied, it would not deprive the Davidson County Chancery Court of subject matter jurisdiction. The doctrine is not jurisdictional. But see Am. Lava Corp. v. Savena, 476 S.W.2d 639, 640 (Tenn. 1972) (describing the earlier filed case as acquiring "jurisdiction [that] became exclusive"); Robinson v. Easter, 344 S.W.2d 365, 366 (Tenn. 1961) (holding that "the court which first takes jurisdiction thereby acquires exclusive jurisdiction of the case"). Rather, it is a doctrine of judicial comity and efficiency, which should not be evoked here. E.g., Reece v. Reece, 56 S.E.2d 641, 642 ( N.C. 1949); Barber v. Neal, 170 S.E. 906, 907 ( W.Va. 1933); Reed v. Frey, 458 P.2d 386, 389 (Ariz.Ct.App. 1969). Dismissal would serve neither end.
CKF Excavating responded and moved to confirm the arbitration award. It contended that the award satisfied both the arbitration agreement and Rule 47. And the other concerns raised by Thomas Builders were merely an effort to "reargue the evidence to escape payment." CKF Excavating also sought an award of attorney's fees.
The chancery court denied the motion to vacate the arbitration award. It found that the arbitrator had issued a "final ruling, the [arbitration] [a]ward was provided as agreed upon by the parties, and . . . the arbitrator did not exceed his authority." So the court confirmed the arbitration award. But it denied CKF Excavating's request for attorney's fees.
II.
On appeal, Thomas Builders contends that there were two grounds for vacating the arbitration award under the Federal Arbitration Act ("FAA"). First, the arbitrator exceeded his powers by not providing a concise written financial breakdown of the monetary award. Second, the arbitrator exceeded his powers or imperfectly executed them because there was no factual support for one of the determinations underlying the award. For its part, CKF Excavating seeks an award of its attorney's fees on appeal.
A.
We first consider Thomas Builders' contention that the FAA, rather than the Tennessee Uniform Arbitration Act ("TUAA"), Tenn. Code Ann. §§ 29-5-301 to -320 (2012), governs judicial review of the arbitration award. Although the judicial review provisions of the two acts "are substantially similar," the TUAA provisions "are more restrictive." Pugh's Lawn Landscape Co. v. Jaycon Dev. Corp., 320 S.W.3d 252, 259 (Tenn. 2010).
The FAA applies to "[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction." 9 U.S.C. § 2 (emphasis added). The term "commerce" as used in the FAA includes "commerce among the several States." Id. § 1. The United States Supreme Court has interpreted the term "involving commerce," and thus the reach of the FAA, as concurrent with that of the Commerce Clause. See, e.g., Perry v. Thomas, 482 U.S. 483, 490 (1987) (describing the FAA as "embod[ying] Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause"). So the FAA applies whenever the contract that is the subject of arbitration has "a substantial relation to interstate commerce." Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 83 (Tenn. 1999) (citing United States v. Lopez, 514 U.S. 549, 557-59 (1995)). A transaction can substantially relate to interstate commerce if its purpose is "to develop a commercial venture extending beyond Tennessee." Id. A transaction can also substantially relate to interstate commerce if it involves contractors and materials from other states. See id.; Tenn. River Pulp & Paper Co. v. Eichleay Corp., 637 S.W.2d 853, 855 (Tenn. 1982).
We conclude that the FAA governs our review because the subcontract between Thomas Builders and CKF Excavating "involves commerce" within the meaning of the FAA. The work related to the construction of a hotel that would be part of a national chain. Suppliers delivered materials to the job site from Pennsylvania, Georgia, Texas, Indiana, and North Carolina. And subcontractors from Georgia, North Carolina, and Mississippi worked at the job site.
B.
Section 10 of the FAA provides the exclusive grounds for vacating an arbitration award. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586 (2008); Grain v. Trinity Health, Mercy Health Servs. Inc., 551 F.3d 374, 378 (6th Cir. 2008). A court may vacate an arbitration award
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.9 U.S.C. § 10(a). Here, the request to vacate the arbitration award arises under § 10(a)(4). The burden of proof, which falls on Thomas Builders, "is very great." Federated Dep't Stores, Inc. v. J.V.B. Indus., Inc., 894 F.2d 862, 866 (6th Cir. 1990).
In part, Thomas Builders contends that the arbitrator exceeded or imperfectly executed his powers by not providing a financial breakdown of the monetary award as required by the arbitration agreement. Generally, "[a]rbitrators have no obligation to the court to give their reasons for an award." United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 598 (1960). Parties may impose such an obligation in their arbitration agreements. See Rain CII Carbon, LLC v. ConocoPhillips Co., 674 F.3d 469, 473 (5th Cir. 2012); Green v. Ameritech Corp., 200 F.3d 967, 976 (6th Cir. 2000). But courts disagree about whether arbitrators can "exceed their powers" by "not doing enough." Compare In re Romanzi, 31 F.4th 367, 375 (6th Cir. 2022) (recognizing that it "ha[d] never squarely held that a dearth of explanation constitutes a §10(a)(4) violation-indeed, the subsection's plain language seems to contradict that reading"); Halim v. Great Gatsby's Auction Gallery, Inc., 516 F.3d 557, 564 (7th Cir. 2008) (holding that "the arbitrator did not exceed his power by not explaining his award in greater detail"), and ARCH Dev. Corp. v. Biomet, Inc., No. 02 C 9013, 2003 WL 21697742, at *4 n.4 (N.D. Ill. July 30, 2003) (commenting that "it is very strange to assert that an arbitrator has exceeded his powers by not doing enough"), with Cat Charter, LLC v. Schurtenberger, 646 F.3d 836, 843 n.14 (11th Cir. 2011) (expressing the "belie[f] that an arbitrator can, in fact, exceed his powers by 'not doing enough'").
We agree with those courts that conclude that an arbitrator does not exceed his power by not doing enough. So we instead consider whether the arbitrator "so imperfectly executed [his powers] that a mutual, final, and definite award upon the subject matter submitted was not made." 9 U.S.C. § 10(a)(4).
An arbitration award "'even arguably construing or applying the [arbitration agreement]' must stand, regardless of the court's view of its (de)merits." Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569 (2013) (citation omitted). When reviewing an arbitration award under § 10(a)(4), "the sole question . . . is whether the arbitrator (even arguably) interpreted the parties' contract, not whether he got its meaning right or wrong." Id. Thomas Builders asserts that the arbitrator failed to comply with the arbitration agreement's "concise written financial breakdown" requirement.
When an arbitrator is tasked with providing a concise financial breakdown, that is exactly what is intended-a concise breakdown. Cf. In re Romanzi, 31 F.4th at 375 n.6 (holding that a one sentence order was a sufficiently "reasoned decision" as to not violate § 10(a)(4)). Here, the arbitrator awarded CKF Excavating the full amount of its damages. CKF Excavating itemized those damages in its pre-arbitration brief, referencing its pay requests, prior payments, and retainage amounts. The arbitrator explained that his final decision was largely based on the evidence of the materials removed from the project site provided by CKF Excavating, which the arbitrator credited over the "'new,' after the fact analysis" provided by Thomas Builders.
In providing its breakdown of damages, the arbitrator did not "so imperfectly execute[] [his powers] that a mutual, final, and definite award upon the subject matter submitted was not made." 9 U.S.C. § 10(a)(4). He thoroughly laid out his findings and reasoning in his award. He denied all of Thomas Builders' claims except the cost of eliminating Rogers Group's lien on the project. And the arbitrator adequately explained the basis for the award to CKF Excavating.
Thomas Builders claims that the arbitrator exceeded his powers or imperfectly executed them in one other crucial aspect. It faults the arbitrator for not identifying all the material CKF Excavating removed as being "unsuitable soils." According to Thomas Builders,
the record is undisputed that 101 truckloads of unidentified material . . ., which equates to $83,325 based on 15 cubic yards per truckload and $55 per cubic yard[,] was part of CKF [Excavating's] claim and the arbitrator's award of $191,490.78. Therefore, $83,325 of the award is based on a mistake of fact or a non-fact . . . .
An arbitration award may be vacated under § 10(a)(4), "where the record that was before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance on that mistake by the arbitrator in making his award." Nat'l Post Office, Mailhandlers, Watchmen, Messengers & Grp. Leaders Div., Laborers Int'l Union of N. Am., AFL-CIO v. U.S. Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985). The problem with Thomas Builders' argument is that the so-called "mistake of fact" was not undisputed. As CKF Excavating explains, the "assertion that the matter removed from the site was 'unidentified' is directly contradicted by the record-as it was identified as unsuitable soil and necessary for removal." And the arbitrator found in favor of CKF Excavating on this point. An arbitrator's "factual determinations based on disputed or ambiguous evidence" are not grounds for vacating an arbitration award. Id.
C.
CKF Excavating seeks attorney's fees under the TUAA. See Tenn. Code Ann. § 29-5-315 (2012); Wachtel v. Shoney's, Inc., 830 S.W.2d 905, 909 (Tenn. Ct. App. 1991) (holding that the statute permits an award of attorney's fees for confirming an arbitration award). Because we have concluded that our review is governed by the FAA, we decline to award attorney's fees based on the TUAA.
CKF Excavating also seeks attorney's fees as damages for a frivolous appeal. See Tenn. Code Ann. § 27-1-122 (2017). A frivolous appeal is one "utterly devoid of merit." Combustion Eng'g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978). This appeal was not devoid of merit. Thomas Builders "made legitimate arguments and cited to relevant law and facts." See Coolidge v. Keene, 614 S.W.3d 106, 120 (Tenn. Ct. App. 2020). So we also decline to award attorney's fees based on a frivolous appeal.
III.
Thomas Builders failed to carry its burden to show that the arbitrator exceeded or imperfectly executed his powers. So the chancery court properly confirmed the arbitration award. We affirm the judgment. And we remand the case for such further proceedings as may be necessary and consistent with this opinion.
KENNY ARMSTRONG, JUDGE
I respectfully disagree with the majority's holding that the doctrine of prior suit pending is inapplicable here. The majority's discussion of prior suit pending is contained in footnote one of its opinion. Therein, the majority notes that the Rogers Group commenced an action (the "Cheatham County case") in Cheatham County against CKF Excavating and TBI. However, the majority omits the fact that TBI filed a cross-claim against CKF in the Cheatham County case. For the reasons discussed below, it is my opinion that TBI's cross-claim triggered the doctrine of prior suit pending and vested jurisdiction in the Cheatham County court. As such, the Davidson County court did not have authority to conduct a review of the arbitrator's decision.
The doctrine of prior suit pending requires proof of the following four elements:
(1) the lawsuits must involve identical subject matter; (2) the lawsuits must be between the same parties or their privies; (3) the former lawsuit must be pending in a court having subject matter jurisdiction over the dispute; and (4) the former lawsuit must be pending in a court having personal jurisdiction over the parties.West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 623 (Tenn. 2008). The majority's conclusion that the prior suit pending doctrine is not applicable rests on element one, i.e., "the lawsuit must involve identical subject matter." Id. The majority contends that element one is not established because
CKF Excavating withdrew its motion to confirm the arbitration award in the Cheatham County case. See Cannon ex rel. Good v. Reddy, 428 S.W.3d 795, 798 (Tenn. 2014) (holding that voluntary dismissal of former suit
precludes dismissal of next suit based on prior suit pending doctrine); Walker v. Vandiver, 181 S.W. 310, 311 (Tenn. 1915) (same). The Cheatham County case now concerns only the claims of Rogers Group. So both lawsuits do not concern identical subject matter.
In this regard, a closer look at the subject matter before the arbitrator in the Cheatham County case is warranted. Although arbitration was conducted in Davidson County, the arbitrator's award, which is now under review, undisputedly arose out of the Cheatham County case. As TBI states in its brief, in response to TBI's cross-claim in the Cheatham County case, CKF "submitted a demand to mediate and arbitrate" the issues between TBI and CKF. CKF submitted five claims to arbitration: 1) a claim for damages in the amount of $191,490.78 for the value of work performed, including $74,002.74 owed to the Rogers Group; 2) legal fees of $14,553.00 relating to the Rogers Group claim; 3) pre-judgment interest; 4) legal fees under Tennessee Code Annotated section 66-11-138; and 5) assignment of the arbitration fees to TBI. TBI submitted to arbitration a claim for damages in the amount of $163,137.93 arising from: 1) damages for delay; 2) costs to complete the scope of work; 3) pre-hearing interest; 4) costs to bond off CKF and the Rogers Group's liens on the project; and 5) allocation of the arbitration fees to CKF. TBI also requested that the arbitrator provide guidance concerning amounts owed to the Rogers Group by CKF and TBI. So, the issues submitted to arbitration arose from litigation between TBI and CKF in the Cheatham County action.
The arbitrator ordered TBI to place $74,022.74 in escrow and noted that this amount "can only be released to CKF upon CKF's presentation to TBI of documents showing that Rogers had been paid in full ... including a release of lien, the lien bond and dismissal of TBI and any surety with prejudice of the lawsuit." The arbitrator also granted TBI's claim for damages arising from costs to bond off the Rogers Group's lien in the amount of $1,480. Additionally, in its subsequent motion for financial breakdown, TBI asserted that the amount awarded to CKF should be reduced to $39,211.96 "to be paid to Rogers." In March 2021, CKF filed a motion to confirm the arbitration award in the Cheatham County court. While CKF's motion to confirm was pending in the Cheatham County action, TBI filed its notice to vacate the arbitration award in the Davidson County court, and CKF subsequently filed a notice to strike its motion to confirm the arbitrator's award in the Cheatham County case. The majority, however, omits the undisputed fact that CKF's motion to confirm the arbitration award was pending before the Cheatham County court when TBI filed its motion to vacate the award in the Davidson County court, i.e., a prior suit was pending. Furthermore, no action was taken by any party to dismiss the pending action in Cheatham County.
In its motion to vacate the arbitration award and memorandum in support thereof, which were filed in the Davidson County case, TBI asserts that "[g]rounds for vacating an award for the arbitrator exceeding his powers also include ... [f]he arbitrator making a clearly erroneous factual conclusion as to the number of cubic yards of unsuitable soils removed ...," and "[t]he arbitrator's ruling as to the number of yards of unsuitable soils removed was a mistake of fact, a non-fact, or a clearly erroneous statement of fact." Then, in its brief to this Court, TBI asserts that "a financial breakdown of the award would logically include the key issue at arbitration-how many cubic yards of unsuitable soils in excess of 1,000 were removed from the Project by CKF." So, at all times during this litigation, TBI has held the position that much of the material removed by CKF was not "unsuitable soil," and that TBI is not liable to CKF-and by extension to the Rogers Group-for amounts billed by CKF. In short, TBI's defense and cross-claim in the Cheatham County case are predicated on its assertion that it was not liable for amounts claimed by CKF. Therefore, the resolution of all disputes by and between the parties rests on the ultimate outcome of the final arbitration award. As such, the identical subject matter was before the Cheatham County court, the arbitrator, and the Davidson County court such that the lawsuit should have been solely administered and adjudicated in Cheatham County where it was first filed and still pending.
As a final note, I disagree with the majority's statement that the doctrine of prior suit pending is not jurisdictional. In support of this contention, the majority relies on cases from our sister states, but largely ignores Tennessee caselaw on this point. The Tennessee Supreme Court has held that the doctrine of prior suit pending impacts subject matter jurisdiction. West, 256 S.W.3d at 620, 622 (citing see, e.g., Cockburn v. Howard Johnson, Inc., 385 S.W.2d 101, 102 (1964)); American Lava Corp. v. Savena, 476 S.W.2d 639, 640 (Tenn. 1972)). '"[W]hen courts have concurrent jurisdiction, the one that first acquires jurisdiction thereby acquires exclusive jurisdiction.'" West, 256 S.W.3d at 624 (quoting American Lava, 476 S. W.2d at 640); Metro Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 879 (Tenn. Ct. App. 1982). Therefore, "[f]he actions of a court that attempts to exercise jurisdiction over a case after another court with concurrent jurisdiction has already exercised jurisdiction are nullities." State ex rel. McPeek v. Long, No. E2005-01670-COA-R3CV, 2006 WL 1163077, at *2 (Tenn. Ct. App. Apr. 28, 2006) (citing see State v. Hazzard, 743 S.W.2d 938, 941 (Tenn. Crim. App. 1997)). "[T]he court which first takes jurisdiction thereby acquires exclusive jurisdiction of the case." Robinson v, Easter, 344 S.W.2d 365, 366 (Tenn. 1961). It is well-settled that "[s]ubject matter jurisdiction refers to a court's lawful authority to adjudicate a legal matter[,]" and the parties can neither confer nor expand subject matter jurisdiction by either waiver or consent. New v. Dumitrache, 604 S.W.3d 1, 14 (Tenn. 2020) (citations omitted). "Any order entered by a court lacking jurisdiction over the subject matter is void." Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013) (citation omitted). "Therefore, subject matter jurisdiction is a threshold inquiry, which may be raised at any time in any court. Id. (citation omitted). The question of subject matter jurisdiction may be raised by the parties or sua sponte by the court. Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 667 (Tenn. Ct. App. 2021). For the reasons discussed above, having taken jurisdiction first, exclusive jurisdiction over the entire case rests with the Cheatham County court, and Davidson County does not have jurisdiction over this case. "A judgment entered by a court without subject matter jurisdiction is void, and we must vacate such order and dismiss the case without reaching the merits." Born Again Church & Christian Outreach Ministries, Inc. v. Myler Church Bldg. Systems, 266 S.W. 421, 424 (Tenn. Ct. App. 2007), perm. app. denied (Tenn. June 13,2008). Accordingly, I would vacate the Davidson County Chancery Court's order and remand for adjudication by the Cheatham County court.