Jonathan M. Thomas v. Kevin Millen ( 2019 )

12/19/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 13, 2019 Session
JONATHAN M. THOMAS v. KEVIN MILLEN
Appeal from the Circuit Court for Shelby County
No. CT-002537-18 James F. Russell, Judge
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No. W2019-00086-COA-R3-CV
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Tenant appeals the dismissal of his appeal from general sessions court for failure to post a
bond constituting one year’s rent. Because the posting of a bond constituting one year’s
rent is non-jurisdictional, we reverse.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ROBERT E.
LEE DAVIES, SR. J., joined. KENNY ARMSTRONG, J., not participating.
Kevin Millen, Memphis, Tennessee, Pro se.
MEMORANDUM OPINION1
I. BACKGROUND
Plaintiff Jonathan M. Thomas (“Plaintiff”) filed a detainer warrant against
Defendant/Appellant Kevin Millen in Shelby County General Sessions Court on May 8,
2018. Plaintiff sought possession of a Memphis apartment owned by Plaintiff but rented
by Mr. Millen after Mr. Millen allegedly failed to pay rent. Plaintiff was granted
possession of the property pursuant to a detainer warrant issued on May 23, 2018. A
judgment was also awarded against Mr. Millen for $1,370.00. The next day, Mr. Millen
filed a notice of appeal to the Shelby County Circuit Court (“the trial court”).
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may
affirm, reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be
published, and shall not be cited or relied on for any reason in any unrelated case.
Mr. Millen filed a multitude of pleadings in the trial court. As is relevant to this
appeal, Plaintiff eventually filed a motion to dismiss the appeal because Mr. Millen
“failed to post the statutory bond equal to one year’s rent of the premises” under
Tennessee Code Annotated section 29-18-130(b)(2) and Rule 62.05 of the Tennessee
Rules of Civil Procedure.2 In particular, Plaintiff alleged because Mr. Millen failed to
post the statutory possession bond, his appeal had not been perfected and should be
dismissed. Mr. Millen responded with a response he captioned as a “Quick Rebuttal of
the Bogus Order of Dismissal[.]”
On January 11, 2019, the trial court entered a written order dismissing the case.
Therein, the trial court found that Mr. Millen was required to post a bond pursuant to
section 29-18-130(b)(2) and Rule 62.05 but failed to do so. As such, the trial court ruled
that Mr. Millen failed to perfect its appeal and it must be dismissed. Mr. Millen thereafter
filed a timely notice of appeal to this Court.
II. DISCUSSION
2
In support, Plaintiff relied on language from the Tennessee Supreme Court differentiating
between the appellate cost bond and the possession bond. See Johnson v. Hopkins, 432 S.W.3d 840, 849
(Tenn. 2013). Despite recognizing that distinction, the language cited by Plaintiff concerns the appellate
cost bond, rather than the possession bond that Plaintiff alleged had not been made in this case.
Plaintiff did not cite any law stating that the bond required by Rule 62.05 was necessary
to perfect an appeal. Rather, Rule 62.05 provides in relevant part as follows:
A bond for stay shall have sufficient surety and:
* * *
(2) if an appeal is from a judgment ordering the assignment, sale, delivery or
possession of personal or real property, the bond shall be conditioned to secure obedience
of the judgment and payment for the use, occupancy, detention and damage or waste of
the property from the time of appeal until delivery of possession of the property and costs
on appeal. If the appellant places personal property in the custody of an officer
designated by the court, such fact shall be considered by the court in fixing the amount of
the bond. A party may proceed as an indigent person without giving any security as
provided in Rule 18 of the Tennessee Rules of Appellate Procedure. Upon motion
submitted to the trial court and for good cause shown, the bond for stay may be set in an
amount less than that called for in the first sentence of this section of this rule. In ruling
on such a motion, the trial court may consider all appropriate factors including, but not
limited to, the appealing party’s financial condition and the amount of the appealing
party’s insurance coverage, if any. If the motion is granted, the party may obtain a stay by
giving such security as the court deems proper. If leave to obtain a stay required by this
rule is denied, the court shall state in writing the reasons for denial.
As clearly stated in subsection (2), the bond required under this rule is excused in cases of
indigence. Mr. Millen was declared indigent in the general sessions court.
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Mr. Millen raises a number of arguments in his appeal, many of which are,
unfortunately, unintelligible. For example, Mr. Millen’s stated issue constitutes a single
paragraph spanning two full pages. Still, Mr. Millen is representing himself pro se before
this Court and therefore is entitled to some leeway in his pleadings. As this Court has
explained:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003) (citations omitted).
Despite this leeway, we have on occasion dismissed appeals filed by pro se litigants that
failed to substantially comply with the briefing requirements set by this Court. See, e.g.,
Doe v. Davis, No. M2018-02001-COA-R3-CV, 2019 WL 4247753 (Tenn. Ct. App. Sept.
6, 2019); Chiozza v. Chiozza, 315 S.W.3d 482 (Tenn. Ct. App. 2009).
Mr. Millen’s brief is not fully compliant with the briefing requirements set by the
Tennessee Rules of Appellate Procedure. See Tenn. R. App. P. 27(a) (setting forth the
briefing requirements). For example, Mr. Millen’s brief contains no references to the
record on appeal. His brief, however, does contain the appropriate sections and references
to legal authorities. Moreover, from our review of the trial court’s order, a single legal
question is presented by this appeal: whether the trial court correctly dismissed Mr.
Millen’s appeal from general sessions court for failure to post a bond pursuant to
Tennessee Code Annotated section 29-18-130(b)(2). This issue concerns the trial court’s
subject matter jurisdiction. Pursuant to Rule 13(b) of the Tennessee Rules of Appellate
Procedure, this Court is required to consider “whether the trial and appellate court have
jurisdiction over the subject matter, whether or not presented for review[.]” As such,
pursuant to the mandate of Rule 13, we will consider the single issue presented in this
appeal notwithstanding the somewhat deficient state of Mr. Millen’s appellate brief.
Here, the trial court dismissed Mr. Millen’s appeal solely on the basis that his
appeal was not perfected, as he stayed in possession of the property but did not post a
bond of one year’s rent pursuant to section 29-18-130(b)(2). We review the trial court’s
decision to grant a motion to dismiss for lack of subject matter jurisdiction de novo with
no presumption of correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.
2000). According to section 29-18-130(b)(2),
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In cases where the action has been brought by a landlord to recover
possession of leased premises from a tenant on the grounds that the tenant
has breached the contract by failing to pay the rent, and a judgment has
been entered against the tenant, subdivision (b)(1) shall not apply. In that
case, if the defendant prays an appeal, the defendant shall execute bond, or
post either a cash deposit or irrevocable letter of credit from a regulated
financial institution, or provide two (2) good personal sureties with good
and sufficient security in the amount of one (1) year’s rent of the premises,
conditioned to pay all costs and damages accruing from the failure of the
appeal, including rent and interest on the judgment as provided for herein,
and to abide by and perform whatever judgment may be rendered by the
appellate court in the final hearing of the cause. The plaintiff shall not be
required to post a bond to obtain possession in the event the defendant
appeals without complying with this section. The plaintiff shall be entitled
to interest on the judgment, which shall accrue from the date of the
judgment in the event the defendant’s appeal shall fail.
Although there was some disagreement in the Court of Appeals as to whether this
bond was jurisdictional when a tenant maintains possession of the disputed property, this
Court recently issued an opinion firmly establishing that the failure to post a bond under
section 29-18-130(b)(2) does not deprive the circuit court of subject matter jurisdiction to
consider an appeal of a detainer action. See Belgravia Square, LLC v. White, No.
W2018-02196-COA-R3-CV, 2019 WL 5837589, at *4 (Tenn. Ct. App. Nov. 7, 2019). In
support, the court in Belgravia Square noted that the Tennessee Supreme Court has
described the section 29-18-130(b)(2) bond as “non-jurisdictional.” Id. (quoting Johnson
v. Hopkins, 432 S.W.3d 840, 849 (Tenn. 2013) (noting that section 29-18-130(b)(2)
merely supplements, and therefore is harmonious with, Rule 62.05)). As such, other
panels of this court have concluded that even where a tenant remains in possession of the
property, the failure to post the section 29-18-130(b)(2) bond does not deprive a trial
court of jurisdiction to hear the tenant’s appeal from general sessions court. Rentals v.
Appelt, No. E2017-01565-COA-R3-CV, 2018 WL 3701826, at *3 (Tenn. Ct. App. Aug.
3, 2018);3 McLucas v. Nance, No. M2015-00642-COA-R3-CV, 2015 WL 5936935, at
*3 (Tenn. Ct. App. Oct. 12, 2015) (“Tenant’s failure to file a bond in the amount of one
year’s rent did not prevent him from perfecting his appeal to circuit court.”); Valley View
Mobile Home Parks, LLC v. Layman Lessons, Inc., No. M2007-01291-COA-R3-CV,
2008 WL 2219253, at *3 (Tenn. Ct. App. May 27, 2008) (“To the extent the Trial Court
construed and applied Tenn. Code Ann. § 29-18-130(b)(2) as requiring Tenant to post a
bond in the amount specified as a condition of prosecuting the appeal, it committed
3
The Rentals opinion specifically disavowed an earlier opinion that came to an opposite
conclusion. See Crye-Leike Prop. Mgmt. v. Dalton, No. W2015-02437-COA-R3-CV, 2016 WL 4771769
(Tenn. Ct. App. Sept. 12, 2016). Both Belgravia Square and Crye-Leike were written by the same author;
as such, it appears that the approach taken in Belgravia Square and Rentals is now the prevailing view
among Tennessee courts.
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error.”) Thus, “[t]he statute and case law make clear that a possessory tenant’s failure to
file a bond in the amount of one year’s rent does not prevent that tenant from perfecting
his or her appeal to circuit court.” Belgravia Square, 2019 WL 5837589, at *4.
Here, the trial court dismissed Mr. Millen’s appeal on the basis that he did not
perfect his appeal by filing a bond in the amount of one year’s rent pursuant to section
29-18-130(b)(2) and Rule 62.05. Current caselaw suggests that this ruling was clearly in
error. Id. Moreover, Plaintiff has chosen not to participate in this appeal so as to question
the reasoning of Belgravia Square. As succinctly stated by the Belgravia Square panel,
“[b]ecause the Tennessee Code Annotated section 29-18-130(b) bond is non-
jurisdictional, the trial court erred in dismissing [Mr. Millen’s] appeal although he
remained in possession of the [p]roperty.” Id. at *4.
III. CONCLUSION
The judgment of the Shelby County Circuit Court is reversed and this cause is
remanded for further proceedings. Costs of this appeal are taxed to Plaintiff Jonathan M.
Thomas.
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J. STEVEN STAFFORD, JUDGE
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