METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY v. KALLIE KAY DREHER ( 2021 )

03/12/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 17, 2021 Session
METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON
COUNTY v. KALLIE KAY DREHER
Appeal from the Circuit Court for Davidson County
No. 19C815 Kelvin D. Jones, Judge
___________________________________
No. M2020-00635-COA-R3-CV
___________________________________
This case began in the environmental court division of the general sessions court for
Davidson County. The Metropolitan Government of Nashville and Davidson County
(“Metro”) alleged that the defendant had violated a section of the Metro Code by operating
a short term rental property with the wrong type of permit. The matter was originally heard
by a referee, who found that the defendant violated the Metro Code as alleged, fined the
defendant fifty dollars, and declared that the property was ineligible for a short term rental
permit for three years. The defendant timely requested a rehearing before the general
sessions court judge. Upon rehearing, the judge ruled in favor of the defendant and
dismissed the case. Metro then sought a de novo appeal before the circuit court. The circuit
court concluded that the appeal must be dismissed because the general sessions court had
dismissed the charge after a trial on the merits, and therefore, a trial de novo would violate
principles of double jeopardy. Metro appeals. We affirm and remand for further
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.
Quantavius M. Poole and Paul Jefferson Campbell, II, Assistant Metropolitan Attorneys,
Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville &
Davidson County.
Seth Nelson Cline and Grover Christopher Collins, Nashville, Tennessee, for the appellee,
Kallie Kay Dreher.
Braden H. Boucek, Nashville, Tennessee, for the Amicus Curiae, Beacon Center of
Tennessee.
OPINION
I. FACTS & PROCEDURAL HISTORY
On January 9, 2019, the Metro Codes Department of the Metropolitan Government
of Nashville and Davidson County filed a civil warrant against Kallie Kay Dreher in the
environmental court division of the general sessions court. The civil warrant alleged that
on July 13, 2018, Ms. Dreher had violated Metro Code section 17.16.070.U.1.a by
operating a short term rental property (“STRP”) at 1810 Fatherland Street in Nashville
without having a “Non-Owner Occupied” permit. The civil warrant simply stated, “Metro
seeks an Order to remedy violations.” It also stated that failure to appear in court on the
date listed in the “citation/warrant” could result in the court ordering Ms. Dreher to pay a
fine, court costs, and taxes.
Initially, a hearing was held before a referee. Although we do not have a transcript
of the hearing, the referee entered an order finding that Ms. Dreher violated the code as
alleged. Section 17.16.070 provided, in pertinent part:
vi. The penalty for operating a short term rental property without a permit
shall be:
(1) A fifty dollar fine as imposed by a court of competent jurisdiction. Each
day of operation without a permit shall constitute a separate offense.
....
(3) Upon a finding of a court of competent jurisdiction that a short term rental
property has operated without a permit, in addition to any other relief
granted, there shall be a waiting period of three years from the date of such
finding for the property to become eligible for a STRP permit.1
As such, the referee entered an order fining Ms. Dreher fifty dollars and providing that the
1
On appeal, the parties cite various other sections of the Metro Code. However, only this section
was made part of the record on appeal. Therefore, we have confined our review to the section of the code
in the record. See Williams v. Epperson, 607 S.W.3d 289, 297 (Tenn. Ct. App. 2020) (“At the outset, we
note that no copy of the Municipal Code is included in the record and that we must therefore confine our
application of the Municipal Code to § 13-305 as it appears in the record. See Tenn. R. Evid. 202(b)
(providing that optional judicial notice of law may be taken of municipal ordinances only upon a party’s
request and reasonable notice to adverse parties)[.]”); 411 P’ship v. Knox Cty., 372 S.W.3d 582, 587-88
(Tenn. Ct. App. 2011) (declining to take judicial notice of zoning ordinances cited in the parties’ briefs but
not included in the appellate record).
-2-
property was ineligible for a short term rental property permit for three years.
After the referee’s decision, Ms. Dreher filed a timely request for a rehearing before
the general sessions court judge. The hearing before the judge was held on March 19,
2019. Metro took the position that Ms. Dreher had operated her rental property with the
wrong type of permit for short term rentals. According to Metro, the permit that she had
obtained was for owner-occupied rentals, but based on Metro’s subsequent investigation,
it alleged that Ms. Dreher was not permanently residing at her rental property. Metro
claimed that Ms. Dreher needed a “non-owner-occupied” permit. At the conclusion of the
proof, the judge announced her oral ruling that “the city has just not proven that she does
not live there.” Thus, the judge ruled in favor of Ms. Dreher.
Thereafter, Metro sought a de novo appeal to circuit court. Before the circuit court,
Metro filed a motion to amend, seeking to substitute a formal complaint for the civil
warrant. Ms. Dreher filed a response, arguing that any review by the circuit court would
have to be limited due to the fact that the case against her was dismissed on the merits by
the general sessions court, triggering double jeopardy protections and preventing a de novo
appeal. After several months of litigation regarding the issue, the circuit court eventually
entered an order dismissing the appeal. The circuit court concluded that the issue was
controlled by the Tennessee Supreme Court’s decision in Metropolitan Government of
Nashville and Davidson County v. Miles, 524 S.W.2d 656, 660 (Tenn. 1975), wherein the
court held that “a proceeding in a municipal court for the imposition of a fine upon a person
for allegedly violating a city ordinance . . . constitutes jeopardy under the double jeopardy
clauses of the Tennessee and Federal Constitutions” and that Metro could not “appeal and
have another trial De novo in the Circuit Court for the same offense.”
Metro timely filed a notice of appeal to this Court.
II. ISSUES PRESENTED
Metro presents the following issues, as we perceive them, for review on appeal:
1. Whether the circuit court erred by failing to provide a de novo appeal from the order
of the general sessions court;
2. Whether the circuit court erred in applying double jeopardy protections on the basis
that the general sessions proceeding was quasi-criminal when Metro’s action was
“civil and remedial”; and
3. Whether Ms. Dreher timely objected to de novo review in the circuit court.
Ms. Dreher responds to each of the issues raised by Metro but does not present any
additional issues for review. An amicus curiae brief was filed on appeal by the Beacon
Center of Tennessee, which urges this Court to affirm the circuit court’s decision.
-3-
III. STANDARD OF REVIEW
“The issue of whether the double jeopardy clauses of the United States Constitution
or the Tennessee Constitution apply in this case is a question of law.” City of Church Hill
v. Reynolds, No. E2000-01376-COA-R3-CV, 2001 WL 242583, at *3 (Tenn. Ct. App. Mar.
12, 2001). Appellate courts review questions of law de novo with no presumption of
correctness as to the trial court’s ruling. Parveen v. ACG S. Ins. Agency, LLC, 613 S.W.3d
113, 117 (Tenn. 2020).
IV. DISCUSSION
We begin with an examination of Metropolitan Government of Nashville and
Davidson County v. Miles, 524 S.W.2d 656 (Tenn. 1975), which was found by the circuit
court to be controlling on the issue before us. In Miles, the defendant was charged with
interfering with a police officer in violation of a particular section of the Metro Code. Id.
at 657. The penalty for the violation was a fine of fifty dollars. Id. After a trial on the
merits in general sessions court, the case was dismissed. Id. Metro then sought a de novo
appeal in circuit court. Id. The defendant moved to dismiss on the grounds that a de novo
appeal would violate the double jeopardy clauses of the United States and Tennessee
Constitutions.2 Id. The circuit court agreed and dismissed the appeal. Id. On appeal to
the supreme court, Metro maintained that it had “the right to appeal De novo to the Circuit
Court a judgment of the General Sessions Court dismissing on the merits a charge of
violation of a city ordinance, the punishment for which is the imposition of a fine[.]” Id.
at 657-58.
Metro argued that the proceeding against the defendant was a civil one as
distinguished from a criminal action. Id. at 659. The Tennessee Supreme Court had
recently explained that the constitutional protection against double jeopardy “‘[i]s
applicable to all proceedings, irrespective of whether they are denominated criminal or
civil, if the outcome may be deprivation of liberty of the person.’” Id. (quoting State v.
Jackson, 503 S.W.2d 185, 186 (Tenn. 1973)) (emphasis added). The court had reasoned
that “‘[p]recious constitutional rights cannot be diminished or whittled away by the device
of changing names of tribunals or modifying the nomenclature of legal proceedings.’” Id.(quoting Jackson, 503 S.W.2d at 186). In that case, the court determined that the
appropriate “‘test’” was “‘the nature and the essence of the proceeding rather than its title,’”
and “‘[i]f the result may be a loss of personal liberty, the constitutional safeguards apply.’”
Id. (quoting Jackson, 503 S.W.2d at 186-87). Thus, the remaining question in Miles was
“whether or not the double jeopardy clause protects one from a second trial in which, if
found guilty, a ‘fine,’ rather than imprisonment, may be imposed.” Id.2
“Both the state and federal constitutions provide that no person shall, for the same offense, ‘be
twice put in jeopardy of life or limb.’” State v. Conley, 639 S.W.2d 435, 436 (Tenn. 1982) (quoting U.S.
Const. amend. V; Tenn. Const. art. I, § 10).
-4-
Quoting the United States Supreme Court, the Miles court explained that “‘[w]here
the objective of the subsequent action likewise is Punishment, the acquittal is a bar, because
to entertain the second proceeding [f]or punishment would subject the defendant to double
jeopardy.’” Id. (quoting Helvering v. Mitchell, 58 S.Ct. 630, 632 (1938)). The Miles court
expressly held that “the imposition of a Fine is punishment.” Id. at 660. It went on to
explain that “in order for an alleged ‘civil’ action to be considered beyond the protection
of the double jeopardy clause it was necessary that such action be ‘remedial in nature’ and
not intended to have the effect of inflicting ‘punishment’ upon the citizen in order to
vindicate public justice.” Id. (quoting Helvering, 58 S.Ct. at 633). The court expressly
adopted the following language from a Georgia case: “‘A matter is criminal only if
imprisonment or the assessment of a fine may follow conviction . . . only actions intended
to authorize criminal punishment as distinguished from remedial actions subject the
defendant to jeopardy.’” Id. (quoting Cushway v. State Bar, 120 Ga.App. 371, 170 S.E.2d
732, 735-36 (1969)).
Finally, the court addressed Metro’s argument that the nature of a de novo appeal in
circuit court prevented the application of the double jeopardy clause on the theory that the
general sessions court judgment was “wiped clean.” Id. The court was “not impressed
with this argument.” Id. It explained that “[t]he double jeopardy clause protects not only
from a second punishment for the same offense, it also forbids a second trial for the same
offense.” Id.In summary, the Miles court announced its holding as follows:
We, therefore, hold that a proceeding in a municipal court for the
imposition of a fine upon a person for allegedly violating a city ordinance is
criminal rather than civil in substance, in that, it seeks punishment to
vindicate public justice and, therefore, constitutes jeopardy under the double
jeopardy clauses of the Tennessee and Federal Constitutions, and,
consequently, the alleged offender, whether acquitted or convicted, cannot
again be tried for the same offense in a state trial court of general jurisdiction
over the timely objection of the defendant. Thus, T.C.A., Section 27-509,
and Metropolitan Charter, Section 14.26, cannot be construed to authorize
the appeal sought herein because, if so construed, they would be
unconstitutional.
In conclusion, we affirm the action of the trial court in holding that
neither the Metropolitan Government Charter, Section 14.26, nor T.C.A.,
Section 27-509, authorizes the Metropolitan Government to appeal and have
another trial De novo in the Circuit Court for the same offense and, concur
in the action of the trial court in dismissing said appeal.
Id.-5-
Later that same year, the Tennessee Supreme Court revisited some of the language
in Miles and attempted to clarify its holding regarding the criminal or civil nature of
proceedings involving the violation of city ordinances. In Metropolitan Government of
Nashville and Davidson County v. Allen, 529 S.W.2d 699, 706 (Tenn. 1975), the court
emphasized that Miles “dealt with the violation of a city ordinance in the Context of double
jeopardy.” (emphasis added). The Court explained,
In that context we held that ‘a proceeding in a municipal court for the
imposition of a fine upon a person for allegedly violating a city ordinance is
criminal rather than civil in substance, in that it seeks punishment to
vindicate public justice and, therefore, Constitutes jeopardy under the double
jeopardy clauses of the Tennessee and Federal Constitutions, and,
consequently, the alleged offender, whether acquitted or convicted, Cannot
again be tried for the same offense in a state trial court of general jurisdiction
over the timely objection of the defendant.’
Id. (quoting Miles, 524 S.W.2d at 660) (emphasis added). The court acknowledged that
some of the language used in Miles “may have been overbroad,” particularly with respect
to whether certain cases recognizing civil aspects of such proceedings had been impliedly
overruled. Id. at 706-707. The court added,
More precise language—and language more in keeping with the thrust of our
principal holding in Miles, which we reiterate—would have been:
These cases are not authority for the proposition that an appeal
may follow an acquittal, after a trial on the merits in a case
involving violation of a city ordinance.
This is what we actually held.
Id. at 707. “Procedurally,” the court explained, “cases involving violation of city
ordinances continue to be civil in nature.” Id. (emphasis added). Thus, Allen clarified,
An appeal for the violation of a municipal ordinance is a civil action,
triable De novo in the circuit court in precisely the same manner and under
the same procedural rules as those governing tort actions instituted in the
General Sessions Courts, to include the right to a jury trial. But, as held in
Miles, the rules of double jeopardy apply to preclude an appeal from a
judgment of acquittal.
Id. (emphasis added).
-6-
In 1990, the Tennessee Supreme Court thoroughly examined the caselaw on the
subject and further confirmed the holding in Miles, stating,
In summary, for 130 years proceedings to recover fines for the violation of
municipal ordinances have been considered civil for the purposes of
procedure and appeal, although the principles of double jeopardy have
recently been determined to apply in such cases. See Miles, supra; cf. United
States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989)
(discussing under what circumstances a civil penalty constitutes
“punishment” for the purposes of double jeopardy analysis).
City of Chattanooga v. Myers, 787 S.W.2d 921, 928 (Tenn. 1990) (emphasis added).
More recently, the Tennessee Supreme Court discussed Miles in a different context
in City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001). Davis was a case involving
the Fifty-Dollar Fines Clause, not double jeopardy. Id. at 252. Because the Fifty-Dollar
Fines Clause makes “a substantive distinction between punitive and non-punitive
assessments” and does not apply “when the assessment is not punitive in nature,” a question
had arisen as to whether the Fifty-Dollar Fines Clause applied to monetary sanctions
imposed for the violation of a municipal ordinance. Id. at 259. The Supreme Court
acknowledged that “even a brief review of the case law reveals, much ink has been spilled,
in literally scores of cases, to delineate the precise nature and object of municipal court
proceedings.” Id. The court noted,
Since our decision in City of Chattanooga v. Myers, 787 S.W.2d 921(Tenn.1990), the law now appears settled that proceedings for a municipal
ordinance violation are civil in nature, at least in terms of technical
application of procedure and for pursuing avenues of appeal. Outside
technical procedure and appeal, however, substantial conflict may still be
found as to the characterization of the substantive nature of the proceeding.
Indeed, depending upon the precise issue before the particular court,
proceedings for a municipal ordinance violation have been described as
“civil in character,” City of Memphis v. Smythe, 104 Tenn. 702, 703, 58 S.W.
215, 215 (1900); as “partak[ing] more or less of a civil wrong,” Hill v. State
ex rel. Phillips, 216 Tenn. 503, 507, 392 S.W.2d 950, 952 (1965); as “partly
criminal,” O’Haver v. Montgomery, 120 Tenn. 448, 460, 111 S.W. 449, 452
(1908); and as “criminal rather than civil in substance,” Metropolitan Gov’t
v. Miles, 524 S.W.2d 656, 660 (Tenn. 1975).
Id. at 259-60. The court explained that “civil proceedings may impose sanctions that are
‘so punitive in form and effect’ as to trigger constitutional protections.” Id. at 261 (citing
Stuart v. State Dept. of Safety, 963 S.W.2d 28, 33 (Tenn. 1998)). Elaborating on Miles, the
court added,
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Indeed, in the specific context of a ‘civil’ proceeding for a municipal
ordinance violation, this Court has held that the imposition of a pecuniary
sanction triggers the protections of the double jeopardy clause to prevent a
second ‘punishment’ in the state courts for the same offense. See Miles, 524
S.W.2d at 660 (“We hold that the imposition of a fine is punishment.”
(emphasis in original)).
Id. In a footnote, the court recognized that there was “some confusion as to the import of
Miles” after Allen had described its language as overbroad. Id. at 261 n.14. However, the
court reiterated that Miles “continues to represent an accurate statement of the law.” Id.Against this backdrop, we consider the arguments raised by Metro on appeal as to
why Miles should not control the outcome of this case. Metro argues that its action against
Ms. Dreher was “purely civil and remedial,” and therefore, double jeopardy protections do
not apply. Metro contends that Miles was limited to proceedings “for the imposition of a
fine” and that “Miles was never intended to apply to civil actions that are remedial in
nature.” According to Metro, it never intended for its action against Ms. Dreher to have
the effect of inflicting punishment. Therefore, Metro argues, double jeopardy protections
are inapplicable.
Metro’s claim about the nature of this proceeding is simply not supported by the
record. It is true, as Metro asserts, that its original civil warrant simply stated, “Metro seeks
an Order to remedy violations.” However, it also stated that failure to appear could result
in the court ordering her to pay a fine. The civil warrant alleged that Ms. Dreher had
violated a particular section of the Metro Code by operating a short term rental property
without the proper permit. In turn, the code provided, in pertinent part:
vi. The penalty for operating a short term rental property without a permit
shall be:
(1) A fifty dollar fine as imposed by a court of competent jurisdiction. Each
day of operation without a permit shall constitute a separate offense.3
....
(emphasis added). Not surprisingly, then, the referee who initially found that Ms. Dreher
violated the code imposed a fine of fifty dollars. On rehearing, the general sessions court
judge found no violation of the code, so there was no fine imposed.
3
According to Ms. Dreher, a separate section of the Metro Code specifies that violations of the title
on zoning are misdemeanor offenses. For the reasons stated above, we cannot consider the code sections
that do not appear in the record. However, we note that a statute cited by Metro on appeal, addressing
municipal zoning, provides the same. See Tenn. Code Ann. § 13-7-208(a)(1) (“The chief legislative body
may provide for the enforcement of any ordinance enacted under this part and part 3 of this chapter. A
violation of any such ordinance is a Class C misdemeanor.”).
-8-
Focusing on the vague request in the civil warrant for “an Order to remedy
violations,” Metro claims that it “did not seek to fine or otherwise punish Defendant.”
Metro maintains that it never intended for Ms. Dreher to be fined for past conduct and that
it really only wanted to obtain an injunction in order to stop her “ongoing” violation of the
Metro Code. However, this assertion is not borne out by the record. Metro’s civil warrant,
filed on January 9, 2019, did not allege any ongoing violation. It alleged that Ms. Dreher
had violated the Metro Code on one specific date several months earlier, on July 13, 2018.
At the hearing before the general sessions court judge, Metro’s witness was asked if Ms.
Dreher was “[a]t this time” in violation of a particular code section, and he responded, “No.
She doesn’t have a listing today.” Metro’s witness was also asked, “are you seeking to
revoke or deny her permit?” He responded, “No.”
According to Metro, the transcript from the general sessions court proceeding
reveals that it never expressly asked for a fine during that hearing, but we note that Metro
never disclaimed any intention to seek a fine either. As Metro’s counsel acknowledged
before the circuit court, “at best, the record would be silent on that issue.” In addition,
when asked why the referee had imposed a fine if none was requested, Metro’s counsel
conceded that a fine may have been specifically requested by Metro during the hearing
before the referee, for which we have no transcript. Notably, when Metro filed a motion
to amend its complaint in circuit court, it did expressly seek the imposition of fines. In
fact, Metro’s proposed complaint sought “a fine of $50.00 per day of advertisement” and
“an additional fine of $50.00 per day of operation.” At the hearing on the motion to amend,
Metro insisted that its proposed complaint was “not changing” the civil warrant but “just
being more specific” and “making it more clear what relief we’re seeking at this time.”
Metro claims that it has a number of options for proceeding against those who
violate the zoning code, citing Tennessee Code Annotated section 13-7-208(a). This
statute, regarding municipal zoning, provides:
(a)(1) The chief legislative body may provide for the enforcement of any
ordinance enacted under this part and part 3 of this chapter. A violation of
any such ordinance is a Class C misdemeanor.
(2) In case any building or structure is or is proposed to be erected,
constructed, reconstructed, altered, converted or maintained, or any building,
structure or land is or is proposed to be used in violation of any ordinance
enacted under this part and part 3 of this chapter, the building commissioner,
municipal counsel or other appropriate authority of the municipality, or any
adjacent or neighboring property owner who would be specially damaged by
such violation, may, in addition to other remedies, institute injunction,
mandamus or other appropriate action or proceeding to prevent such
unlawful erection, construction, reconstruction, alteration, conversion,
maintenance or use, or to correct or abate such violation, or to prevent the
-9-
occupancy of the building, structure or land.
Tenn. Code Ann. § 13-7-208(a) (emphasis added). The Tennessee Supreme Court has
recognized that this section “explicitly provides Metro with the authority to seek judicial
redress in the event any structure ‘is proposed to be used in violation of any’ of Metro’s
zoning ordinances.” Metro. Gov’t of Nashville v. Bd. of Zoning Appeals of Nashville, 477
S.W.3d 750, 762 (Tenn. 2015) (citing Tenn. Code Ann. § 13-7-208(a)(2)). This Court has
also recognized that this statute “specifically authorize[s] local governments to seek
injunctive relief to secure compliance with local zoning requirements.” Bramblett v. Coffee
Cty. Planning Comm’n, No. M2005-01517-COA-R3-CV, 2007 WL 187894, at *5 (Tenn.
Ct. App. Jan. 24, 2007). However, this statute was never mentioned when Metro submitted
a proposed amended complaint in an attempt to clarify its claims in the trial court. Instead,
the amended complaint characterized the action as one “to fine and enjoin” Ms. Dreher.
The proposed amended complaint specifically stated that it was an action to enforce
Metro’s ordinances pursuant to Tennessee Code Annotated section 7-3-501, which states,
When any person violates an ordinance, law or regulation of a metropolitan
government, any police or peace officer of such metropolitan government or
any employee of the metropolitan government authorized to enforce such
ordinance, law or regulation, in whose presence the violation is committed
or who determines after investigation that there is probable cause such a
violation has been committed, may issue a citation or civil warrant, giving a
copy to the violator, showing the ordinance, law or regulation violated and
the date, time and place when the violator is to appear in court.
Thus, Metro’s argument regarding its options under section 13-7-208 does not change the
fact that this proceeding was for the imposition of a fine.
In summary, “Metro asks this Court to adopt a test by which purely civil zoning
actions and other remedial measures can be reviewed.” However, this argument is
misplaced. This was not a purely remedial action that was not intended to inflict
punishment, as Metro now claims. All along, at each stage, it was a proceeding for the
imposition of a penalty in the form of a fine. Thus, we conclude that this case is squarely
controlled by the decision in Miles.4
This Court reached a similar result, when applying Miles, in City of Church Hill v.
Reynolds, 2001 WL 242583. In that case, the defendant was issued a misdemeanor citation
alleging violations of city ordinances over a one-month period. Id. at *1. The city court
found him guilty of violating the ordinances on specific dates and fined him accordingly.
4
We express no opinion regarding Metro’s argument that it is entitled to elect whether or not to
pursue a fine, in spite of the mandatory language in the Metro Code. It is not necessary to resolve that issue
because, factually, that is not what occurred in this case.
- 10 -
Id. at *1-2. The defendant sought a de novo appeal to the circuit court, which likewise
found the defendant guilty of several violations. Id. at *3. However, the circuit court found
him guilty on additional days for which the defendant had been tried by the city court with
no finding of guilt. Id. The defendant appealed to this Court, claiming that “he was subject
to double jeopardy when the Circuit Court Judge found him guilty of violations on days
for which he was found not guilty by the City Court Judge.” Id. On appeal, we explained
that “[t]here are three fundamental principles that underlie the double jeopardy provisions
of both Constitutions: (1) protection against a second prosecution after an acquittal; (2)
protection against a second prosecution after a conviction; and (3) protection against
multiple punishments for the same offense.” Id. We recognized “the long and troubled
history of cases discussing the unique body of law with regard to municipal ordinances.”
Id. at *4. Specifically:
Courts have wrestled with how to deal with municipal ordinances because
they are not easily classified as civil or criminal, as demonstrated by the fact
that they have been referred to as civil, criminal, and even quasi-criminal
over the years. According to the Court in Myers, the “clear” rule to be
gleaned from a review of the various cases is that, as far as general procedural
matters and matters of appeal are concerned, cases involving violations of
municipal ordinances are civil in nature. Even though these cases are
considered “civil” from a procedural standpoint, the prohibition against
double jeopardy nevertheless applies.
Id. (emphasis added). We described Miles as “the leading Tennessee case on the
applicability of the double jeopardy prohibition to violations of municipal violations.” Id.
Applying Miles and Myers, we ultimately concluded that “the prohibitions against double
jeopardy apply to proceedings involving Defendant’s alleged violation of these municipal
ordinances.” Id. at *5. Holding that the defendant “cannot be placed in jeopardy twice for
the same offense,” we reversed the circuit court’s finding of guilt for the additional dates.
Id. at *6. The defendant “could not be retried in Circuit Court for violations of ordinances
on certain days for which he was tried and not found guilty in City Court.” Id.
In conclusion, because Metro was also a party to the Miles case, we reiterate the
language used by the Tennessee Supreme Court at that time and apply it to this proceeding
against Ms. Dreher. “‘[O]nly actions intended to authorize criminal punishment as
distinguished from remedial actions subject the defendant to jeopardy.’” Miles, 524
S.W.2d at 660 (quoting Cushway, 170 S.E.2d at 735-36). In this context, a matter is
criminal “‘if imprisonment or the assessment of a fine may follow conviction.’” Id.5 “[I]n
order for an alleged ‘civil’ action to be considered beyond the protection of the double
5
See State v. Conley, 639 S.W.2d 435, 435-37 (Tenn. 1982) (applying these quotes from Miles to
determine that the revocation of driving privileges of one declared to be an habitual offender is “remedial
in nature” within the meaning of double jeopardy).
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jeopardy clause it was necessary that such action be ‘remedial in nature’ and not intended
to have the effect of inflicting ‘punishment’ upon the citizen in order to vindicate public
justice.’” Id. The initial proceeding filed by Metro in general sessions court “for the
imposition of a fine upon a person for allegedly violating a city ordinance [was] criminal
rather than civil in substance, in that, it [sought] punishment to vindicate public justice and,
therefore, constitute[d] jeopardy under the double jeopardy clauses of the Tennessee and
Federal Constitutions.” Id. As a result, Ms. Dreher “cannot again be tried for the same
offense in a state trial court of general jurisdiction over the timely objection of the
defendant.”6 Id. Metro cannot “have another trial De novo in the Circuit Court for the
same offense and, [we] concur in the action of the trial court in dismissing said appeal.”
Id.V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court and
remand for further proceedings. Costs of this appeal are taxed to the appellant,
Metropolitan Government of Nashville and Davidson County, for which execution may
issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
6
Because Miles used the term “timely objection,” Metro suggests on appeal that Ms. Dreher did
not make a “timely” objection to the circuit court proceeding and that she waived her double jeopardy rights
by filing a motion regarding the timeliness of the appeal to circuit court and waiting four months after the
appeal was filed to raise the issue of double jeopardy. The circuit court denied Ms. Dreher’s motion to
dismiss the appeal as untimely on July 17, 2019, Metro filed a motion to amend its complaint on July 30,
and Ms. Dreher filed a response raising the issue of double jeopardy on August 20.
In its four-sentence argument with respect to this issue, Metro does not cite any case law
interpreting the “timely objection” language from Miles or otherwise discussing the waiver of double
jeopardy rights, and it does not cite to any location in the record to indicate that it ever challenged the
timeliness of Ms. Dreher’s double jeopardy objection in the trial court. As such, we deem this issue waived.
“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for
him or her, and where a party fails to develop an argument in support of his or her contention or merely
constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Supreme Court,
301 S.W.3d 603, 615 (Tenn. 2010); see also Lunsford v. K-VA-T Food Stores, Inc., No. E2019-01272-
COA-R3-CV, 2020 WL 1527002, at *6 (Tenn. Ct. App. Mar. 31, 2020) (quoting El-Moussa v. Holder, 569
F.3d 250, 257 (6th Cir. 2009)) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in [a] skeletal way, leaving the court to put flesh on its bones.”).
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