State of Tennessee, on Relation of v. Calvin Howell v. Jimmy Farris , 562 S.W.3d 432 ( 2018 )

03/09/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 1, 2018 Session
STATE OF TENNESSEE ON RELATION OF V. CALVIN HOWELL ET
AL. v. JIMMY FARRIS ET AL.
Appeal from the Chancery Court for Hardeman County
No. 17784 Martha Brasfield, Chancellor
___________________________________
No. W2017-00438-COA-R3-CV
___________________________________
This case arose as a result of a local building inspector’s refusal to issue building permits
to the owner/developer of three commercial properties because the owner/developer did
not have a licensed general contractor overseeing construction. Subsequently, without
submitting completed applications for the building permits or paying the required permit
fees, the owner/developer appeared before the Bolivar city council to appeal the denials
of the building permits. Relying on the recommendation of the city attorney, the city
council determined that because the owner/developer had not filed written building
permit applications or paid building permit fees, an appeal was not appropriate and
refused to take any action. The owner/developer then filed a complaint for a writ of
certiorari and other relief in the Chancery Court. Following the filing of the lawsuit, the
owner completed the applications, paid the permit fees, and the building permits were
issued. The owner/developer was later granted permission to amend his complaint to
allege an inverse condemnation claim based on a regulatory taking. The defendants
subsequently moved for summary judgment. The Chancery Court ultimately granted
defendants summary judgment on all of the owner/developer’s initial claims. The
defendants later filed a motion to dismiss as to the owner/developer’s claim for inverse
condemnation. The motion to dismiss was also granted by the Chancery Court. The
owner/developer appeals. For the reasons stated herein, the decision of the Chancery
Court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and BRANDON O. GIBSON, J., joined.
Charles M. Purcell and Christopher C. Hayden, Jackson, Tennessee, for the appellants,
State of Tennessee - Civil, and Virgil Calvin Howell.
Michael R. Hill, Milan, Tennessee, for the appellee, Jimmy Farris.
John D. Burleson and Matthew R. Courtner, Jackson , Tennessee, for the appellees,
Shelia Dellinger, City of Bolivar, Tennessee, Barrett Stevens, Tracy Byrum, James
Futrell, Teresa Golden, Randy Hill, Todd Lowe, Larry Allen McKinnie, Willie
McKinnie, and David Rhea.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
V. Calvin Howell (“Appellant” or “Mr. Howell”), an owner/developer of real
estate, appeals the dismissal of his claims which arose out of his attempts to obtain
building permits for three of his commercial properties in Bolivar, Tennessee.
On March 13, 2013, Mr. Howell filed a verified “Complaint for Injunctive Relief,
Writ of Certiorari, Declaratory Judgment, Restraint of Improper Alienation of Property
and Damages” in the Chancery Court against Jimmy Farris, individually and in his
capacity as building and code enforcement officer; Sheila Dellinger in her official
capacity as city administrator (the “City Administrator”); the City of Bolivar, a municipal
corporation of the State of Tennessee in its own capacity (the “City”), and by and through
Barrett Stevens in his official capacity as mayor of Bolivar (the “Mayor”); and the
following members of the City Council in their official capacity: Tracy Byrum, James
Futrell, Teresa Golden, Randy Hill, Todd Lowe, Larry Allen McKinnie, Willie
McKinnie, and David Rhea (the “City Council”).1
According to the complaint, the events giving rise to Mr. Howell’s suit began on
or about June 6, 2011, when Mr. Howell approached Mr. Farris and verbally requested
that Mr. Farris issue building permits for the improvement and renovation of structures
located on property Mr. Howell owns at 105 (the “Hotel”) and 109 West Market Street
(the “Restaurant”) in Bolivar, Tennessee. Mr. Howell alleged that Mr. Farris told him
that he was denying the permits because Mr. Howell was not a licensed contractor
pursuant to Tennessee Code Annotated § 62-6-101 et seq. (the “Contractor Licensing
Act”), and Mr. Howell had not hired a licensed contractor to oversee the construction
sites.2 It is undisputed that Mr. Howell is not a licensed contractor, and that he had
1
Jimmy Farris, the City Administrator, the City, the Mayor, and the City Council together are
referred to as “Appellees” throughout this opinion.
2
Tennessee Code Annotated Section 62-6-101 et seq. prohibits anyone from engaging in
“contracting” without being a licensed contractor. “‘Contractor’ means any person . . . that undertakes to .
. . construct, supervise, superintend, oversee, schedule, direct, or in any manner assume charge of the
construction, alteration, repair . . . for any building . . . or any other construction undertaking for which
the total cost is twenty-five thousand dollars ($25,000) or more[.]” Tenn. Code Ann. § 62-6-102(4)(A)(i).
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already begun construction on these projects before he requested the building permits.
Mr. Howell further alleged that on or about August 10, 2011, he requested a building
permit for a third project located on Pecan Grove Drive (the “Apartment Building”) and
that Mr. Farris also denied this request, again citing the Contractor Licensing Act. Mr.
Howell averred that he “advised [Mr. Farris] that as owner of the three properties he had
no factual or legal obligation under [the Contractor Licensing Act] to either obtain a
contractor’s license or to hire a licensed contractor to oversee the construction projects.”
Despite Mr. Howell’s statements, Mr. Farris continued to refuse to issue the permits.
Following Mr. Farris’ denials, Mr. Howell alleged that he approached the Mayor
to discuss the situation. According to Mr. Howell’s complaint, the Mayor agreed with
Mr. Howell that as the owner of the properties he was exempt from the Contractor
Licensing Act and that Mr. Farris should issue the permits to Mr. Howell. Despite
whatever discussions the Mayor may have had with Mr. Farris, Mr. Farris continued to
refuse to issue the permits.
Although Mr. Howell did not have the requisite building permits, he continued
working on the three projects. On December 6, 2011, the District Attorney General
contacted Mr. Howell ordering him to cease all construction until Mr. Howell was in
compliance with the Contractor Licensing Act and other applicable regulations.
Evidently, despite the warning, Mr. Howell continued construction, and on May 7, 2012,
the Hardeman County Grand Jury returned an indictment charging Mr. Howell with three
counts of “contracting” without a license in violation of the Contractor Licensing Act.3
On May 28, 2012, the judge presiding over Mr. Howell’s criminal case enjoined Mr.
Howell from continuing construction. However, on November 15, 2012, the judge in the
criminal case granted Mr. Howell’s motion to dismiss the indictments, lifted the
injunction, and concluded that the Contractor Licensing Act did not apply to Mr. Howell
because he was not engaged in “contracting.”4 The State appealed, and on February 13,
2014, the Court of Criminal Appeals reversed the circuit court’s dismissal of the
indictments stating, “the plain language of the Contractor Licensing Act provides that the
activities undertaken by Appellant must be done by a licensed contractor.” State v.
Howell, No. W2012-0285-CCA-R3-CD, 2014 WL 586003, at *6 (Tenn. Crim. App. Feb.
13, 2014).
3
Mr. Howell was indicted for “contracting” as defined by Tennessee Code Annotated Section 62-
6-102(2), without a license as required by Tennessee Code Annotated Section 62-6-102(3), in violation of
Tennessee Code Annotated Section 62-6-103 and Section 62-6-120.
4
The Circuit Court Judge stated, “Upon review of [the Contractor Licensing Act] as well as of
the reasonable meaning of this entire chapter, this Court concludes that the law does not contemplate that
an owner of a property engages in the business of contracting when he allows others to work on his
property.”
-3-
While the appeal of the dismissal of the indictments against Mr. Howell was
pending, on January 8, 2013, Mr. Howell appeared with his attorney before the Bolivar
City Council because Mr. Farris continued to refuse to issue the building permits.5
Because of the ongoing criminal proceedings, the City Council resolved to consult with
the City Attorney before proceeding. At the following City Council meeting on February
12, 2013, Mr. Howell once again appeared with his attorney. The minutes from the
meeting indicate that Mr. Howell was directed to file three building permit applications,
pay the requisite permitting fees, and be formally denied before the City Council would
proceed.
On March 12, 2013, the City Council held its monthly session, but Mr. Howell and
his attorney did not appear. The minutes from the meeting again indicate that Mr.
Howell had continued to fail to submit the permit applications or pay the permitting fees.
Mr. Howell initiated this litigation on March 13, 2013 with a properly verified
petition. Among other relief,6 Mr. Howell sought the issuance of a statutory writ of
certiorari to review the actions of the City Council. In the alternative, Mr. Howell sought
review through the issuance of a common law writ of certiorari. Mr. Howell also sought
liquidated damages based upon the delays allegedly caused by the City’s actions.
However, for reasons unknown, the Chancery Court did not order the City to send up the
record for review until nearly two years later.7
On April 30, 2013, Mr. Farris answered, and averred that he was not required to
issue the building permits to Mr. Howell because Mr. Howell was not in compliance with
the Contractor Licensing Act. Mr. Farris also denied that Mr. Howell ever approached
him requesting the permits, submitted permit applications, paid the permitting fees, or
informed the City of the cost of the projects so that permitting fees could be calculated.
On May 28, 2013, the City Council, City Administrator, and Mayor answered Mr.
Howell’s complaint, averring that Mr. Howell had failed to state a claim under Tennessee
Rule of Civil Procedure 12.02(6).
While the case was pending, in July 2013, Mr. Howell filed the required permit
applications, paid the requisite fees, and the three building permits were approved.8
5
The City Council serves as the board of zoning appeals in Bolivar. See Bolivar City Code No.
12-102(4).
6
In total, Mr. Howell’s complaint contained five “counts,” labeled as follows: (1) restraint of
improper alienations of property and removal of officer; (2) writ of certiorari; (3) declaratory judgment;
(4) compensatory damages; (5) injunctive relief.
7
This occurred on February 25, 2015, when the Chancery Court entered its initial order on
Appellees’ motion for summary judgment in which it found the issue moot.
8
Due to a clerical error, the permits were not officially issued until February 2015. However, the
Chancery Court found this inconsequential, concluding “[t]he record reveals that the parties have acted as
if a building permit had been issued, and when it was discovered that a permit had not been issued but
-4-
On May 1, 2014, Mr. Farris, in his official capacity, the City Administrator, the
City Council, and the Mayor filed a motion for summary judgment, a statement of
undisputed material facts, and a supporting memorandum that averred, inter alia, that Mr.
Howell’s claims were moot because the permits were approved in July 2013. Also in
support of the motion for summary judgment, the Appellees submitted a portion of Mr.
Howell’s deposition testimony, during which Mr. Howell admitted that he did not pay the
permit fees or submit formal permit applications until July of 2013, and that when he
eventually did so, the permits were approved. However, Mr. Howell continued to oppose
Appellees’ motion for summary judgment, and both sides submitted additional pleadings
in support of their positions. On October 17, 2014, Mr. Howell sought permission from
the Chancery Court to amend his complaint to assert a claim for inverse condemnation
based on a regulatory taking.9 On December 10, 2014, the Chancery Court held a hearing
on Appellee’s motion for summary judgment and entered an order granting Mr. Howell’s
motion to amend his complaint to add an additional claim for inverse condemnation.10
On February 25, 2015, the Chancery Court granted Appellees partial summary
judgment. The court’s initial summary judgment order stated that Mr. Howell was
entitled to review under both a common law writ of certiorari and a statutory writ of
certiorari, and for the first time ordered the City Council to prepare the record.
Furthermore, the order stated that Mr. Howell could seek compensatory damages in this
proceeding because “[t]he attorneys have agreed that these damages would be appropriate
under the statutory writ of certiorari under Tenn. Code Ann. § 27-8-102(2).” However, in
this same order, the Chancery Court dismissed Mr. Howell’s claims as moot stating,
“[t]he motion for summary judgment is affirmed to the extent that it is no longer
necessary for this Court to order the City to issue the building permits or to remove [Mr.
Farris] from office because the building permits have been issued and [Mr. Farris] is no
longer in office.”
On March 3, 2015, Mr. Howell filed motions to reconsider and to strike. As a
basis for the motions, Mr. Howell asserted that Appellees’ attorney had contacted his
attorney on February 25, 2015, to inform him that although both parties believed the
permits had been issued in July 2013, the permits had only recently been issued due to a
clerical error. However, the attorneys agreed at oral argument that the parties proceeded
as if the permits had previously been formally issued since they were approved in July
2013.
only approved, a building permit was issued.”
9
As grounds for the motion to amend the complaint, Mr. Howell asserted that the Supreme Court
had recently recognized a cause of action of inverse condemnation through regulation. See Phillips v.
Montgomery Cty., 442 S.W.3d 233, 242 (Tenn. 2014).
10
At the December 10, 2014 hearing on the Appellees’ motion for summary judgment, Appellees’
attorneys consented to the amendment of the complaint.
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On March 16, 2015, Appellees responded in opposition to Mr. Howell’s motion to
strike, and on March 27, 2015, Appellees filed a motion to revise the court’s order
granting Appellees partial summary judgment. In the motion to revise, Appellees urged
the Chancery Court to amend its previous ruling by holding that the common law writ
was the exclusive and appropriate mechanism through which Mr. Howell could seek
review of the City Council’s actions. Moreover, Appellees argued that Mr. Howell’s suit
should be dismissed as moot because the permits had been issued. Appellees’ attorney
also averred that he never agreed that compensatory damages would be an available
remedy to Mr. Howell in this proceeding even if the Chancery Court concluded that the
statutory writ was the appropriate vehicle for review of the City Council’s actions.11
Also on March 27, 2015, Mr. Howell filed his “First Amended Complaint for
Injunctive Relief, Writ of Certiorari, Declaratory Judgment, Restraint of Improper
Alienations of Property, Inverse Condemnation, and Damages,” adding a regulatory
taking claim pursuant to Article 1, Section 21 of the Tennessee Constitution. On
December 3, 2015, Appellees moved to dismiss Mr. Howell’s regulatory taking claim.
On July 7, 2016, Mr. Howell filed a memorandum of law in opposition to Appellees’
motion to dismiss.
On January 11, 2017, the Chancery Court entered two orders. First, it entered an
order revising its earlier order on Appellees’ motion for summary judgment. In this order,
the court dismissed all of Mr. Howell’s claims, except for his regulatory taking claim.
The court found that the common law writ was the appropriate vehicle for review of the
City Council’s actions, compensatory damages were not an available remedy, and that the
issuance of the permits rendered Mr. Howell’s claims moot. The court also entered a
second order granting Appellees’ motion to dismiss Mr. Howell’s regulatory taking
claim, concluding that Mr. Farris’ refusal to issue the permits “was legally appropriate in
light of the [Tennessee Court of Criminal Appeals’] ruling in State v. Howell, 2014 WL
586003, at *5 (Tenn. Ct. Crim. App. Feb. 13, 2014).”
On January 26, 2017, the parties filed a joint motion to correct inadvertent clerical
errors contained in both orders of January 11, 2017. On February 6, 2017, the Chancery
Court entered two revised orders correcting the clerical errors.12 Mr. Howell timely
appealed.13
11
In support of the motion, Appellees’ attorney attached a record of the transcript from the
proceedings in which the Chancery Court received the impression that it was Appellees’ position that
compensatory damages were an available remedy if the court should conclude the statutory writ was
appropriate. The transcript reveals that the attorney clearly did not agree that compensatory damages
would be available.
12
Mr. Howell has not appealed the dismissal of his Tennessee Code Annotated Section 29-35-101
et seq. claim (forfeiture of office), his declaratory judgment claims, or his claims for injunctive relief.
13
Mr. Howell also filed a suit against Appellees in federal court. Mr. Howell brought suit
pursuant to 42 U.S.C. § 1983, alleging the City’s policies, customs, and procedures caused violations of
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ISSUES PRESENTED
Mr. Howell presents the following issues for our review:
(1) Whether the trial court erred in granting the Defendants’ motion to
revise the trial court’s denial of the defendants’ motion for summary
judgment on the appropriate method of judicial review as to the
Defendants’ denial of the plaintiff’s requested building permits.
(2) Whether the trial court erred in granting the defendants’ motion to
dismiss the plaintiffs’ regulatory taking claim in reliance upon the
Tennessee Court of Criminal Appeals’ ruling in State v. Howell, 2014 WL
586003, at *5 (Tenn. Crim. App. Feb. 13, 2014).
Appellees present the following issues for our review:
(3) Whether the trial court correctly dismissed [Mr.] Howell’s writ of
certiorari claim for monetary damages.
(4) Whether the trial court correctly dismissed Howell’s inverse
condemnation claim because he failed to state a claim.
Mr. Farris, in his individual capacity, presents the following issue for our review:
(5) Whether the Plaintiff has any claims pending against the Defendant,
Jimmy Farris, in his individual capacity.14
STANDARD OF REVIEW
Mr. Howell appeals the Chancery Court’s decisions to grant Appellees’ motion for
summary judgment on all claims in his original complaint as moot and to grant
Appellees’ motion to dismiss Mr. Howell’s regulatory taking claim. The Tennessee
Supreme Court has described the standard of review applicable in an appeal from a grant
of summary judgment as follows:
his First Amendment rights, violations under the Fourteenth Amendment’s substantive due process clause
and its equal protection clause, and violations of the Tennessee Open Meetings Act, Tennessee Code
Annotated Section 8-4-101. See Howell v. Farris, No. 15-01027-JDB-egb, 2015 WL 6037808, at *1
(W.D. Tenn. Oct. 15, 2015). However, these claims were subsequently dismissed based upon the statute
of limitations. Id.
14
At oral argument, Mr. Howell conceded that he has not appealed the dismissal of the
claims against Mr. Farris in his individual capacity.
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We review a grant of summary judgment de novo, with no presumption of
correctness in the trial court’s decision. Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Summary judgment
is appropriate only when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P.
56.04. On appeal, we must “make a fresh determination of whether the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been satisfied.” Rye, 477 S.W.3d at 250.
McFarland v. Pemberton, 530 S.W.3d 76, 85–86 (Tenn. 2017).
A motion to dismiss requires a court to determine if the pleadings state a claim
upon which relief may be granted. Tenn. R. Civ. P. 12.02(6); See Phillips v. Montgomery
Cty., 442 S.W.3d 233, 237 (Tenn. Ct. App. 2014). A motion based upon Tennessee Rule
of Civil Procedure 12.02(6) challenges “only the legal sufficiency of the complaint, not
the strength of the plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). “A defendant filing a motion to
dismiss ‘admits the truth of all the relevant and material allegations contained in the
complaint, but . . . asserts that the allegations fail to establish a cause of action.” Phillips,
442 S.W.3d at 237 (quoting Webb, 346 S.W.3d at 426)).
When adjudicating such motions, courts “must construe the complaint liberally,
presuming all factual allegations to be true and giving the plaintiff the benefit of all
reasonable inferences.” Id. (citation omitted). A Rule 12.02(6) motion may only be
granted when it appears that “the plaintiff can prove no set of facts in support of the claim
that would entitle the plaintiff to relief.” Webb, 346 S.W.3d at 426 (quoting Crews v.
Buckman Labs. Int’l Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). We review a lower court’s
decision on a motion to dismiss de novo without any presumption of correctness. Id.
DISCUSSION
Mr. Howell contends that the Chancery Court erred in concluding that the
statutory writ of certiorari was not available to him, and in granting summary judgment
on his claims, with the exception of his regulatory taking claim, as moot. Mr. Howell also
avers that the Chancery Court erred in granting Appellees’ motion to dismiss his
remaining regulatory taking claim. Although we have not arrived at our decision based
upon the same reasoning as the Chancery Court, we affirm its judgment in its entirety.
See In re Conservatorship of Stratton, No. E2012-01655-COA-R3-CV, 2013 WL
3961175, at *5 (Tenn. Ct. App. July 31, 2013) (“An appellate court can affirm the
judgment of the Chancery Court even though the appellate tribunal’s rationale for doing
so is different from that of the Chancery Court.”).
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I. COMMON LAW WRIT OF CERTIORARI VS. STATUTORY WRIT OF
CERTIORARI
At the outset, we address Mr. Howell’s contention that the Chancery Court erred
in concluding that the common law writ of certiorari was the proper method of judicial
review in this case. Mr. Howell contends that he was entitled to review under the
preferential standard afforded by the statutory writ of certiorari because the City Council
performed an essentially judicial function, and he contends that the City Council “in its
inaction of providing [Mr. Howell] with a decision from which he could appeal, finally
determined his rights by in effect denying the issuance of the permits to [Mr. Howell]
along with his ability to appeal the refusal of the same.” Appellees defend the Chancery
Court’s decision, contending that the City’s actions were administrative, and Mr. Howell
did have a mechanism to seek review of the City Council’s actions by seeking a common
law writ of certiorari.
Before addressing Mr. Howell’s contentions, we first turn to explain the
mechanics and applicability of the common law writ of certiorari versus that of the
statutory writ of certiorari. “A [w]rit of [c]ertiorari is an order from a superior court to an
inferior [tribunal] to send up the record for review.” Utley v. Rose, 55 S.W.3d 559, 563
(Tenn. Ct. App. 2001). “In Tennessee, there are two types of writs of certiorari: (1) the
common law writ, codified at [Tennessee Code Annotated Section] 27-8-101, and (2) the
statutory writ, codified at [Tennessee Code Annotated Section 27-8-102].” See Admin.
Res., Inc., v. Tenn. Dep’t of Commerce, No. M2010-01199-COA-R3-CV, 2011 WL
2176387, at *5 (Tenn. Ct. App. June 2, 2011).
“The basic purpose of the common law writ of certiorari is to curb ‘illegal’ actions
by the inferior tribunal, while the basic purpose of the statutory writ is to correct mistakes
and errors of inferior tribunals.” See Lawrence A. Pivnick, Tenn. Cir. Ct. Prac. §3:13
(2017). The common law writ of certiorari is available “where an inferior tribunal, board,
or officer, exercising judicial functions has exceeded the jurisdiction conferred, or is
acting illegally, when, in the judgment of the court, there is no other plain, speedy, or
adequate remedy.” Tenn. Code Ann. § 27-8-101. A common law writ of certiorari is not
available as a matter of right, and the petition for a writ is addressed to the Chancery
Court’s discretion. Heyne v. Metro. Nashville Bd. of Public Educ., 380 S.W.3d 715, 729–
30 (Tenn. 2012) (citations omitted). When a court issues a common law writ of certiorari,
the record of the inferior tribunal is brought before the court to determine whether the
inferior tribunal proceeded according to the applicable law. See Gore v. Tenn. Dep’t of
Corr., 132 S.W.3d 369, 375 (Tenn. Ct. App. 2003). We have described the mechanics of
the common law writ of certiorari as follows:
The issuance by the trial court of a writ of certiorari is not an adjudication
of anything. It is neither a victory nor a defeat for the competing parties. It
is simply a command by the trial court to the inferior tribunal or
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administrative agency to send the record made before the agency in the
proceeding to the court for review of that record. Then the trial court upon
review of the record made before the administrative tribunal will enter a
judgment of either quashal or affirmance.
Id. (citing Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870, 872 (1916)). “The
primary consequence of a determination that a party must seek judicial review through
the common law writ of certiorari procedure is that the Chancery Court must apply a
limited standard of review to decisions already made by administrative officials, rather
than address the issue de novo as the initial decision maker.” State ex rel. Moore &
Assoc’s, Inc. v. West, 246 S.W.3d 569, 574 (Tenn. Ct. App. 2005). The common law writ
of certiorari does not allow a reviewing court to evaluate the intrinsic correctness of the
lower tribunal’s decision. Id. at 377 (citing Yokley v. State, 632 S.W.2d 123, 126 (Tenn.
Ct. App. 1981)).
On the other hand, “[t]he statutory writ of certiorari is authorized, in lieu of
appeal, to correct errors of fact and law committed by an inferior tribunal,” and the
Chancery Court may conduct a trial de novo. See Boyce v. Williams, 389 S.W.2d 272,
276 (Tenn. 1965). Tennessee Code Annotated Section 27-8-102 provides that the
statutory writ of certiorari is available in five instances: “(1) [o]n suggestion of
diminution; (2) [w]here no appeal is given; (3) [a]s a substitute for appeal;15 (4) [i]nstead
of audita querela;16 or (5) [i]instead of a writ of error.” In the absence of a statute
expressly granting review under Tennessee Code Annotated Section 27-8-102,17 the
statutory writ is only available to review a lower tribunal’s decision when the following
three requirements are met: “(1) the order of the administrative body of which review is
sought is one for which no judicial review is provided; (2) the function performed by the
lower tribunal is essentially judicial in nature; and (3) the order for which review is
15
The statutory writ of certiorari may only be used as a substitute for appeal, when a party has
been denied an appeal through no fault of their own. See Gallatin Hous. Auth. v. Pelt, 532 S.W.3d 760,
768 (Tenn. Ct. App. 2017) (“Unless the petitioner has been deprived of his appeal by inevitable accident,
by the wrongful act of the justice or adverse party, or by his own blameless misfortune, no matter how
meritorious his case may be, the petition will be dismissed.”)
16
Travelers Indem. Co. v. Callis, 481 S.W.2d 384, 385 (Tenn. 1972) (“An [a]udita querela is
where a defendant against whom a judgment is recovered and who is therefore in danger of execution, or
perhaps actually in execution, may be relieved upon good matter in discharge which has happened since
the judgment; as if the plaintiff has given him a general release, or if the defendant has paid the debt to the
plaintiff without entering satisfaction on the record.”).
17
See, e.g., Brundage v. Cumberland Cty., 357 S.W.3d 361, 372 n.24 (Tenn. 2011), listing the
following as examples of when the statutory writ of certiorari has been designated as the appropriate
vehicle for review by the legislature: Tenn. Code Ann. § 49-5-513(a) (2009) (disciplinary decisions
regarding tenured teachers) (this statute has been characterized as a species of statutory writ of certiorari
in Cooper v. Williamson Cty. Bd. of Educ., 746 S.W.2d 176, 179 (Tenn.1987)); Tenn. Code Ann. § 57-5-
108(d) (revocation or suspension of a permit to sell beer); Tenn. Code Ann. § 63–12–128(c) (2010)
(decisions of the Board of Veterinary Examiners).
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sought finally determines the rights of the petitioner.” Admin., 2011 WL 2176387, at *5;
Buford v. Tenn. Dep’t of Corr., No. M199800157COAR3CV, 1999 WL 1015672, at *4
(Tenn. Ct. App. Nov. 10, 1999) (adopting the three-part test for the statutory writ of
certiorari outlined in Judge Cantrell’s article).18 In a statutory writ proceeding, the
reviewing court may conduct a trial on the merits. Buford, 1999 WL 1015672, at *3.
“If the inferior tribunal, board, or officer is exercising judicial functions; then, in
that event either writ may be employed to review the action of such inferior tribunal.” See
Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 276 (Tenn. 1965). However, when a
board is performing an administrative or quasi-judicial function, review under the
common law writ of certiorari is appropriate because de novo review under the statutory
writ of certiorari would violate the doctrine of separations of powers. Admin., 2011 WL
2176387, at *5.
Although the Tennessee Supreme Court has recognized that, “[t]he question of
whether an appeal of an administrative body’s decision falls within a common law or
statutory writ of certiorari can be a complex one,” that is not the case here. Tenn. Waste
Movers, Inc. v. Loudon Cty., 160 S.W.3d 517, 520 n. 2 (Tenn. 2005). “Courts have
consistently held that the proper vehicle by which to seek judicial review of decisions of
the local Board of Zoning Appeals is the common law writ of certiorari.” See West, 246
S.W.3d at 576 (citations omitted); SMS Cmty. Hous., Inc. v. Memphis and Shelby Cty. Bd.
of Adjustment, 1986 WL 6790, at *1 (Tenn. Ct. App. June 17, 1986) (concluding that the
common law writ of certiorari was the appropriate vehicle for review when plaintiffs
sought review of board’s decision to deny building permit). This is because “deciding
whether a particular situation meets the requirements of a zoning ordinance is an
administrative function, quasi-judicial in nature.” See Capps v. Metro. Gov’t of Nashville
and Davidson Cty., No. M2007-01013-COA-R3-CV, 2008 WL 5427972, at *6 (Tenn. Ct.
App. Dec. 31, 2008) (citing City of Brentwood v. Metro. Bd. of Zoning Appeals, No.
M2005-01379-COA-R3-CV, 2007 WL 1890641, at *6 (Tenn. Ct. App. June 28, 2007));
Walker v. Metro. Bd. of Parks and Recreation, No. 2008-01748-COA-R3-CV, 2009 WL
5178435, at *11 (Tenn. Ct. App. Dec. 30, 2009); West, 246 S.W.3d at 576 (“Decisions of
those boards are administrative or quasi-judicial decisions that involve applying the facts
of a situation before the board to the applicable ordinance or requirement, i.e., enforcing,
applying, or executing a law already in existence.”). Tennessee Code Annotated Section
13-7-110 provides that, “[a]ny county legislative body may provide for the enforcement
of its zoning regulations by means of the withholding of building permits[.]”
Accordingly, “the decision of whether to grant a building permit . . . is [considered] an
administrative act, even if made by a legislative body.” West, 246 S.W.3d at 569. Mr.
Howell concedes in his brief submitted to this Court that the City Council “serves as an
appellate tribunal on building permit issues” in Bolivar. However, Mr. Howell claims
that he was “denied” a hearing, and sought review of the City Council’s actions because
18
See Ben H. Cantrell, Review of Administrative Decisions, 4 Mem. St. U. L. Rev. 19 (1973).
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the City Council “refused to even provide Mr. Howell with a decision.” Regardless of
the labels assigned in the complaint or the language of the requests for relief, the nature
of Mr. Howell’s suit is clear: Mr. Howell sought building permits and review of the
City’s officials’ administrative actions through the issuance of a writ of certiorari. The
statutory writ of certiorari was not available to Mr. Howell in this case because the
decision to deny a building permit is an administrative function, reviewable through a
common law writ proceeding. See Brown v. Metro. Gov’t of Nashville and Davidson Cty.,
No. M2016–02269–COA–R3–CV, 2018 WL 522419, at *2 (Tenn. Ct. App. Jan. 23,
2016) (affirming Chancery Court’s review of denial of a building permit under the
common law writ of certiorari); Scott v. City of Knoxville, No. E2014–01589–COA–R3–
CV, 2015 WL 3545948, at *4–5 (Tenn. Ct. App. June 8, 2015); West, 246 S.W.3d at 577
(“There is no legally cognizable difference in a building permit and a certificate of
compliance . . . [c]onsequentially, the appropriate method for review of such a decision is
the common law writ of certiorari.”); Thompson v. Dep’t of Codes Admin. Metro. Gov’t
of Nashville and Davidson Cty., 20 S.W.3d 654, 659 (Tenn. Ct. App. 1999) (“In the
instant case, the nature of the decision below, the denial of a building permit, indicates
that the appropriate means of review is the common law writ of certiorari.”).
Mr. Howell attempts to differentiate the facts of this case from the litany of other
cases that expressly hold that the common law writ of certiorari is the appropriate vehicle
of review when a lower tribunal has denied a building permit. While he admits that the
“common law writ of certiorari is indeed the undisputed method of reviewing decisions
of boards of zoning in Tennessee,” he argues that the statutory writ of certiorari is
appropriate here because this is not an appeal from a board of zoning appeals. Although
Mr. Howell concedes that it is the City Council that serves as the appellate body for land
use decisions in Bolivar, Mr. Howell avers that “at the very least, for [any case] to be
analogous to the matter presently before the Court, that case would deal with a building
permit matter before a city council.” Appellant avers that “extensive legal research has
uncovered no such case throughout the entirety of Tennessee jurisprudence.”
Such was the case, however, in Scott v. City of Knoxville, 2015 WL 3545948, at
*4–5. In Scott, the owners of a funeral home applied for a building permit to construct a
crematorium, as an addition to the existing funeral home. Id. at *1. The building
inspection and planning department granted the permit. Id. However, owners of
neighboring properties appealed the issuance of the permit to the local board of zoning
appeals, and then after the board affirmed the planning department’s decision to grant the
permit, to the city council. Id. The city council agreed that the permit was properly
issued, and the plaintiffs sought review through a common law writ of certiorari. Id. We
confirmed that the common law writ of certiorari was the appropriate vehicle for
appealing the issuance of the permit. Id. at *4–5.
It is not determinative that the City Council, rather than a body exclusively
designated as the board of zoning appeals, served as the tribunal reviewing Mr. Farris’
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decisions to deny Mr. Howell the building permits. Mr. Howell was not permitted a
statutory writ of certiorari because the City Council engaged in an administrative function
when it enforced the existing laws. De novo review of the City Council’s decision to deny
the permits would have violated the doctrine of separation of powers. Accordingly, we
agree with the Chancery Court that the appropriate (and exclusive) vehicle for judicial
review of the City Council’s actions was a common law writ of certiorari.
II. MOOTNESS
Having concluded that the common law writ of certiorari was the appropriate
vehicle for review, the Chancery Court then determined that the case was moot,
reasoning that Mr. Howell’s suit no longer served as a means to provide judicial relief
because the permits had been issued during the pendency of the case. Mr. Howell avers
that his claims are not moot and asks that we remand for a trial de novo so that Mr.
Howell will be “able to present this matter in its entirety to the [Chancery Court] for a
final determination in which all remedies within the purview of the [Chancery Court] are
available to it to compensate the Plaintiff for the actions of the Defendants[.]” Mr.
Howell does not specify the nature of the remedies he pursues, but avers that the court
may “make its own determination and fashion its own remedies” based on the facts of
this case.
We have previously explained the doctrine of mootness as follows:
The doctrine of justiciability prompts courts to stay their hand in cases that
do not involve a genuine and existing controversy requiring the present
adjudication of present rights. Thus, our courts will not render advisory
opinions or decide abstract legal questions.
Cases must be justiciable not only when they are first filed but must also
remain justiciable throughout the entire course of the litigation, including
the appeal. The concept of mootness deals with the circumstances that
render a case no longer justiciable.
A moot case is one that has lost its character as a present, live controversy.
The central question in a mootness inquiry is whether changes in the
circumstances existing at the beginning of the litigation have forestalled the
need for meaningful relief. A case will generally be considered moot if it no
longer serves as a means to provide relief to the prevailing party.
Ivy v. Tenn. Dept. of Corr., No. M2007-02606-COA-R3-CV, 2008 WL 5169563, at *3
(Tenn. Ct. App. Dec. 9, 2008) (quoting McIntyre v. Traughber, 884 S.W.2d 134, 137
(Tenn. Ct. App. 1994)) (internal citations and quotation marks omitted).
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As we mentioned above, the common law writ of certiorari permits a court
reviewing a lower tribunal’s decision only to determine whether that decision maker
exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or
fraudulently, or acted without material evidence to support its decision. West, 246 S.W.3d
at 574 (citations omitted). Under this standard of review, courts may not (1) inquire into
the intrinsic correctness of the lower tribunal’s decision; (2) reweigh the evidence; or (3)
substitute their judgment for that of the lower tribunal. Id. (citations omitted). The
jurisdiction of the court in a common law writ proceeding is supervisory, and the court’s
review must be restricted to the external validity of the proceedings held in the lower
tribunal. Id.; Wills v. City of Memphis, 457 S.W.3d 30, 39 (Tenn. Ct. App. 2014) (“It
envisions that the court will review the record independently to determine whether it
contains ‘such relevant evidence that a reasonable mind might accept as adequate to
support a rational conclusion.’”).
“[E]specially where zoning decisions by local officials are involved, the common
law writ of certiorari, being a supervisory writ, somewhat limits the remedies courts
employ when there has been error.” West, 246 S.W.3d at 574 (citations omitted).
“Remand is most commonly used, because courts should give local zoning officials the
opportunity to perform their duties appropriately rather than substituting the court’s own
judgments for those of the zoning officials.” Id. (citations omitted). As we have
previously stated:
Because courts should avoid requiring local zoning authorities to take a
particular action except in the most extraordinary circumstances, the most
common judicial remedy in zoning cases is to remand the case to the
zoning agency with instructions appropriate to the circumstances of the
case. Rather than shouldering the local agency’s responsibilities, the courts
should insist that the agency carry out its task in an appropriate manner.
The goal of a remand should be to place the parties and the agency in the
position they would have been in had the agency not acted improperly.
See Wright v. City of Shelbyville Bd. of Zoning Appeals, No. M2011–01446–COA–R3–
CV, 2012 WL 5378267, at *9 (Tenn. Ct. App. Oct. 31, 2012) (quoting Hoover v. Metro.
Bd. of Zoning Appeals, 955 S.W.2d 52, 55 (Tenn. Ct. App. 1997)).
After initiating this litigation in March 2013, Mr. Howell eventually complied
with the City Council’s directive to complete formal applications and pay the requisite
permitting fees. When questioned by the City’s attorney during his deposition, Mr.
Howell testified as follows:
Q: [D]id you actually file [the permit applications] with any city official
and say, “This is my official application for a building permit.”
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A: No.
Q: And at that point in time you didn’t pay any type of fee—
A: No.
Q: --application fee or permit fee.
A: No.
Q: That didn’t happen until July of 2013.
A: Right.
Q: It did happen then, though.
A: Did happen then.
Q: And the permits were issued then.
A: Right.
The Chancery Court was only permitted to review the City Council’s actions in
“denying” Mr. Howell’s requests for building permits to determine whether the City
Council exceeded its jurisdiction, followed an unlawful procedure, acted illegally,
arbitrarily, or fraudulently, or acted without material evidence to support its decision. See
West, 246 S.W.3d at 574. Issuance of the permits rendered the Chancery Court’s review
purposeless. Contrary to Mr. Howell’s position, it is not permissible for a court in a
common law writ proceeding to “fashion its own remedies.” Moreover, as discussed in
greater detail below, Mr. Howell’s claims invoking the original jurisdiction of the
Chancery Court should have been dismissed ab initio. See City of Murfreesboro v. Lamar
Tenn., LLC, No. M2010-00229-COA-R3-CV, 2011 WL 704412, at *2 (Tenn. Ct. App.
Feb. 28, 2011) (“It has been consistently held that the common law writ of certiorari,
which is appellate in nature, is incompatible with an original [jurisdiction] action, and the
two cannot be brought together.”). Accordingly, we agree that Mr. Howell’s claims were
properly dismissed as moot.19
19
While we affirm the judgment of the Chancery Court in dismissing Mr. Howell’s claims, we
reiterate that his claims for injunctive relief, declaratory judgment, restraint of improper alienation and
removal of officer, and compensatory damages, should have been dismissed by a motion to dismiss rather
than at the summary judgment phase because those claims invoked the original jurisdiction of the trial
court. See Brown v. Tenn. Bd. of Prob. and Parole, 2007 WL 2097548, at *4 (Tenn. Ct. App. July 6,
2007).
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III. REGULATORY TAKING CLAIM
On December 10, 2014, the Chancery Court entered an order granting Mr. Howell
permission to amend his complaint to add an additional claim based upon the alleged
inverse condemnation of Mr. Howell’s properties by way of regulatory taking. On
January 11, 2017, the Chancery Court granted Appellees’ motion to dismiss Mr.
Howell’s regulatory taking claim, concluding that Appellees’ “denial of the building
permits was legally appropriate in light of the Tennessee Criminal Court of Appeals’ [sic]
ruling in [Howell, 2014 WL 586003, at *5].”
While we agree that Mr. Howell’s regulatory taking claim should have been
dismissed, we do so because the regulatory taking claim—and all of Mr. Howell’s claims
invoking the original jurisdiction of the chancery court—should have been dismissed at
the outset. We emphasize that a litigant may not bring claims invoking the original
jurisdiction of the Chancery Court when he or she has initiated the proceedings by
seeking a writ of certiorari. See State ex rel. Byram v. City of Brentwood, 833 S.W.2d
500, 502 (Tenn. Ct. App. 1991); Goodwin v. Metro. Bd. of Health, 656 S.W.2d 383, 387
(Tenn. Ct. App. 1983) (“The chancellor eventually dismissed the Declaratory Judgment
aspect of the case, but we hold it should have been dismissed at the very outset.”). In
Goodwin, this Court stated as follows:
[W]e wish to heartily condemn that which appears to us to be a growing
practice, i.e., the joinder of an appeal with an original action and the
simultaneous consideration of both at the trial level. This Court is of the
firm opinion that such procedure is inimical to a proper review in the lower
certiorari Court and creates even greater difficulties in the Court of
Appeals. The necessity of a separation of appellate review of a matter and
trial of another matter ought to be self-evident. In the lower Court one is
reviewed under appropriate Appellate rules and the other is tried under trial
rules. In this Court our scope of review is dependent upon the nature of a
proceeding. In this case one matter would be limited by rules of certiorari
review and the other would be reviewed under 13(d), Tennessee Rules of
Appellate Procedure. Like water and oil, the two will not mix.
The action of the board [in this case] . . . is reviewable in the Chancery
Court as one of common law certiorari. This means it was the function of
the Chancellor to review the record to determine if there was any material
or substantial evidence to support the action of the board. Such review is
actually a question of law and not of fact. Our scope of review of the action
of the Chancellor is no greater than his of the board.
Goodwin, 656 S.W.2d at 386–87.
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We have addressed similar facts before. See Universal Outdoor, Inc. v. Tenn.
Dep’t of Transp., No. M2006-02212-COA-R3-CV, 2008 WL 4367555, at *8 (Tenn. Ct.
App. Sept. 24, 2008). In Universal Outdoor, the plaintiffs sought review of a lower
tribunal’s denial of their application for a permit for a billboard. Id. at *1–2. The
plaintiffs also attempted to join a claim for inverse condemnation in the Chancery Court.
Id. at *8. We stated as follows:
[The plaintiffs] could not bring a claim for compensation in this action for
judicial review of an administrative decision to deny a permit. A direct or
original action cannot be brought in conjunction with an action that is
appellate in nature, such as judicial review under the APA or common law
writ of certiorari.
Universal Outdoor, 2008 WL 4367555, at *9.
Because Mr. Howell sought the issuance of a common law writ of certiorari, an
appellate review, his claims invoking the original jurisdiction of the chancery court,
including his regulatory taking claim could not be joined in this proceeding. Accordingly
we affirm the dismissal of Mr. Howell’s regulatory taking claim. See Clark v. Metro.
Gov’t. of Nashville and Davidson Cty., 827 S.W.2d 312, 317 (Tenn. Ct. App. 1991) (“If a
[t]rial [c]ourt reaches the correct result, its judgment is entitled to affirmance irrespective
of the reasons stated.”). The remaining issues raised by Appellees are pretermitted.
CONCLUSION
Based upon the foregoing authorities and reasoning, we conclude that the
dismissal of all of Mr. Howell’s claims was proper, and therefore the judgment of the
trial court is affirmed. Costs of this appeal are assessed against the Appellant, V. Calvin
Howell and his surety, for which execution may issue if necessary.
_________________________________
ARNOLD B. GOLDIN, JUDGE
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