Mardoche Olivier v. City of Clarksville

08/17/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 3, 2017
MARDOCHE OLIVIER v. CITY OF CLARKSVILLE ET AL.
Appeal from the Circuit Court for Montgomery County
No. 16CV1636 Ross H. Hicks, Judge
No. M2016-02473-COA-R3-CV
This action arises out of an alleged violation of the plaintiff’s civil rights by the City of
Clarksville (“the City”) and a group of police officers employed by the City (“the
Officers”) (collectively, “Defendants”). The plaintiff was arrested on June 1, 2015, for
driving on a revoked or suspended license, see Tenn. Code Ann. § 55-50-504 (2012), and
making a 911 telephone call in a nonemergency situation, see Tenn. Code Ann. § 7-86-
316 (2015). The plaintiff filed a complaint on August 11, 2016, alleging that as a result
of his arrest, the Officers caused him to suffer damages from false imprisonment,
malicious prosecution, malicious harassment, outrageous conduct, intentional infliction
of emotional distress, conversion, and inverse condemnation. The plaintiff also alleged
violations of his civil rights pursuant to 42 U.S.C. § 1983. Defendants filed a motion to
dismiss on October 5, 2016, asserting, inter alia, that the plaintiff’s claims were
statutorily barred due to the immunity granted to Defendants by the Tennessee
Governmental Tort Liability Act (“GTLA”). See Tenn. Code Ann. § 29-20-205 (2012).
The trial court entered a final order regarding Defendants’ motion to dismiss on
November 17, 2016, granting the motion and dismissing all claims. The plaintiff has
appealed. Discerning no error, we affirm the trial court’s dismissal of the plaintiff’s
claims.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which RICHARD H.
DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Mardoche Olivier, Clarksville, Tennessee, Pro Se.
D. Mark Nolan and Kathryn W. Olita, Clarksville, Tennessee, for the appellees, City of
Clarksville, Keith Jones, David Odell, Crystal Robinson, J.T. Knoblock, Ron Knight, and
Dave Keenom.
OPINION
I. Factual and Procedural History
The appellant, Mardoche Olivier, was arrested on June 1, 2015, for driving on a
revoked or suspended license and making a 911 call in a nonemergency situation. In his
complaint, Mr. Olivier averred that on that date, the Officers initiated a traffic stop
against another driver, “Ms. Mines,” who was in the process of following Mr. Olivier to
his residence in a separate automobile. Mr. Olivier stated that while driving ahead of Ms.
Mines, he looked back to discover that the Officers had directed Ms. Mines to pull over
in a parking lot. Mr. Olivier reportedly drove into the parking lot, parked his vehicle, and
exited. Mr. Olivier claimed that the Officers, having been told by Ms. Mines that Mr.
Olivier was picking her up, approached him and asked to see his driver’s license.
According to Mr. Olivier, he “informed the [Officers] that he did not want anything to do
with them and [he] notified [the Officers] that this contact was not consensual and
demanded [the Officers] le[ave] him alone.” Mr. Olivier then phoned 911 “for assistance
with the [Officers]” and was subsequently arrested.
Mr. Olivier filed his complaint on August 11, 2016, in the Montgomery County
Circuit Court (“trial court”). Mr. Olivier alleged that as a result of his arrest, Defendants
caused him to suffer damages from false imprisonment, malicious prosecution, malicious
harassment, outrageous conduct and/or intentional infliction of emotional distress,
conversion, inverse condemnation, and various civil rights violations pursuant to 42
U.S.C. § 1983.
During the course of the litigation, Mr. Olivier filed a motion for default judgment
on September 29, 2016. The City responded to this motion on October 3, 2016, asserting
that due to the City’s standing as a governmental entity, the City had sixty days to file a
responsive pleading pursuant to the GTLA and such time period had yet to elapse. See
Tenn. Code Ann. § 29-20-304 (2012). Subsequently, Defendants filed a motion on
October 5, 2016, seeking dismissal of Mr. Olivier’s claims. Defendants delineated three
separate bases warranting dismissal: (1) Defendants were immune from suit pursuant to
the GTLA; (2) the tort claims that Mr. Olivier asserted were subject to the operation of a
one-year statute of limitations, which had already elapsed; and (3) Mr. Olivier failed to
allege essential elements of his claims. On October 6, 2016, the trial court entered an
order denying Mr. Olivier’s motion seeking a default judgment.
2
Mr. Olivier subsequently filed another motion for default judgment on October 17,
2016, claiming that Defendants had failed to timely answer the complaint. The City filed
a response to the motion on October 19, 2016, referencing its previously filed motion to
dismiss. The trial court denied Mr. Olivier’s second motion for default judgment on
November 15, 2016, determining that Defendants had filed a proper responsive pleading
within the time allowed. Meanwhile, on October 7, 2016, Mr. Olivier had filed a motion
seeking to amend his complaint. The City opposed such amendment, stating that the
proposed changes were futile.
The trial court conducted a hearing regarding Defendants’ motion to dismiss on
November 15, 2016. On November 17, 2016, the trial court issued its order, which stated
in pertinent part:
1. First, the Plaintiff failed to comply with Tennessee Rule of
Procedure 8.01, which provides the Complaint shall contain a short
and plain statement of the claim showing the Plaintiff is entitled to
relief.
2. Second, the Defendant City of Clarksville is immune from suit under
Tennessee’s Governmental Tort Liability Act, pursuant to the plain
language of T.C.A. § 29-20-205, which specifies specific torts from
which municipalities are per se immune, and the Plaintiff’s failure to
allege a policy practice or custom which caused his alleged harm.
3. Third, the Plaintiff failed to allege essential elements of his claims.
Specifically, the Plaintiff failed to allege essential elements of his
claims of malicious prosecution, malicious harassment, inverse
condemnation, conversion, intentional infliction of emotional
distress, and 42 U.S.C. § 1983 constitutional claims.
4. Fourth, a number of the torts alleged by the Plaintiff, namely false
imprisonment, intentional infliction of emotional distress, and civil
rights violations, have a statute of limitations period of one year. As
the Plaintiff’s cause of action accrued on June 1, 2015, at the time of
his arrest, and the Plaintiff filed the Complaint in this action on
August 11, 2016, the claims are dismissed as untimely.
5. Further, to the extent the Plaintiff sought claims against any person
in an individual capacity, this Court dismisses all such claims for
failure to adequately serve such individuals with process, or to allege
specific facts against them to state a claim.
3
The trial court accordingly dismissed each of Mr. Olivier’s claims. On the same date, the
trial court entered an order denying Mr. Olivier’s motion to amend his complaint. Mr.
Olivier timely appealed.
II. Issues Presented
Mr. Olivier presents nine issues for our review, some of which are duplicative or
unclear. We have determined the dispositive issues raised to be:
1. Whether the trial court erred by dismissing Mr. Olivier’s claims
against the Officers in their individual capacities because the
Officers had not been served with process.
2. Whether the trial court erred by determining that Defendants were
immune from suit pursuant to Tennessee Code Annotated § 29-20-
205 of the GTLA.
3. Whether the trial court erred by determining that Mr. Olivier’s
claims were untimely filed based on the applicable one-year statute
of limitations.
4. Whether the trial court erred by dismissing Mr. Olivier’s complaint
for failure to allege essential elements of his claims.
5. Whether the trial court erred by denying Mr. Olivier’s motions for
default judgment.
III. Standard of Review
When reviewing the trial court’s dismissal of a complaint pursuant to Tennessee
Rule of Civil Procedure 12, we must consider only the legal sufficiency of the complaint.
See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). As our
Supreme Court has explained:
A Rule 12.02(6) motion to dismiss only seeks to determine whether
the pleadings state a claim upon which relief can be granted. Such a
motion challenges the legal sufficiency of the complaint, not the strength of
the plaintiff’s proof, and, therefore, matters outside the pleadings should
not be considered in deciding whether to grant the motion. In reviewing a
motion to dismiss, the appellate court must construe the complaint liberally,
4
presuming all factual allegations to be true and giving the plaintiff the
benefit of all reasonable inferences. It is well-settled that a complaint
should not be dismissed for failure to state a claim unless it appears that the
plaintiff can prove no set of facts in support of his or her claim that would
warrant relief. Great specificity in the pleadings is ordinarily not required
to survive a motion to dismiss; it is enough that the complaint set forth “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn.
2000) (citing Tenn. R. Civ. P. 8.01).
Id. (additional internal citations omitted).
In reviewing pleadings, we “must give effect to the substance, rather than the form
or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)
(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn.
2010)). We note also that pleadings “prepared by pro se litigants untrained in the law
should be measured by less stringent standards than those applied to pleadings prepared
by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279 S.W.3d 560, 568
(Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young
v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit
of counsel are “entitled to fair and equal treatment by the courts,” but we “must not
excuse pro se litigants from complying with the same substantive and procedural rules
that represented parties are expected to observe.” See Hessmer v. Hessmer, 138 S.W.3d
901, 903 (Tenn. Ct. App. 2003).
We review a trial court’s denial of a motion for default judgment under an abuse
of discretion standard. See Perry v. All Unknown Parties Having Any Interest In Prop.
Known as Mathis Cemetery Located On Lot 10 Oak Woods, Medina, Tenn., No. W2010-
00822-COA-R3-CV, 2010 WL 5541081, at *3 (Tenn. Ct. App. Dec. 28, 2010) (citing
Logan v. Civil Serv. Comm’n of City of Memphis, No. W2007-00324-COA-R3-CV, 2008
WL 715226, at *10 (Tenn. Ct. App. Mar. 18, 2008)). Our Supreme Court has elaborated
on this standard as follows:
An abuse of discretion occurs when a court strays beyond the applicable
legal standards or when it fails to properly consider the factors customarily
used to guide the particular discretionary decision. State v. Lewis, 235
S.W.3d 136, 141 (Tenn. 2007). A court abuses its discretion when it causes
an injustice to the party challenging the decision by (1) applying an
incorrect legal standard, (2) reaching an illogical or unreasonable decision,
or (3) basing its decision on a clearly erroneous assessment of the evidence.
State v. Ostein, 293 S.W.3d 519, 526 (Tenn. 2009); Konvalinka v.
5
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex
rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d [22,] 42
[(Tenn. 2005)].
To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court’s discretionary
decision to determine (1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the lower court’s decision was
within the range of acceptable alternative dispositions.
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010).
IV. Claims Against Officers Individually
Mr. Olivier asserts that the Officers should have been required to file individual
answers to his claims. The trial court, however, dismissed any individual claims against
the Officers on the basis that none of the Officers had been personally served with
process. As provided by Tennessee Rule of Civil Procedure 4.04, “The plaintiff shall
furnish the person making the service with such copies of the summons and complaint as
are necessary.” Furthermore, service upon an individual is accomplished “by delivering a
copy of the summons and of the complaint to the individual personally” or by mailing a
certified copy of the summons and a copy of the complaint by registered or certified mail
to the defendant. See id. Mr. Olivier has provided no documentation in the record to
demonstrate that proper service was accomplished upon the individual Officers in the
manner provided in Rule 4.04. Accordingly, we must affirm the trial court’s dismissal of
any claims against the Officers in their individual capacities. See Farley v. Farley, No.
M2014-00814-COA-R3-CV, 2015 WL 444831, at *2 (Tenn. Ct. App. Feb. 2, 2015) (“It
is well-settled that it is the appellant’s duty to prepare a record for our review that
includes everything contained in the trial court record that is necessary for our
examination of the issues presented on appeal.”); see also Turner v. Turner, 473 S.W.3d
257, 271 (Tenn. 2015) (explaining that a court obtains personal jurisdiction over a
defendant by proper service of process and a “court ‘without personal jurisdiction of the
defendant’ is wholly ‘without power to proceed to an adjudication’ binding on that
defendant, regardless of the specific reason such jurisdiction is lacking.”).
V. Governmental Tort Liability Act
The GTLA, codified at Tennessee Code Annotated §§ 29-20-201, et seq., governs
claims against counties, municipalities, and other local governmental agencies. See
6
Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997). As our Supreme Court
explained regarding the GTLA in Young v. City of LaFollette, 479 S.W.3d 785, 790
(Tenn. 2015):
[T]he Legislature enacted the GTLA, which reaffirmed generally the grant
of sovereign immunity provided at common law and in the Tennessee
Constitution by stating that “all governmental entities shall be immune
from suit for any injury which may result from the activities of such
governmental entities wherein such governmental entities are engaged in
the exercise and discharge of any of their functions, governmental or
proprietary.” Tenn. Code Ann. § 29-20-201(a). However, in addition to
reaffirming the general grant of immunity, the GTLA also enumerates
certain statutory exceptions where governmental immunity is specifically
removed. Id. § 29-20-202 [through -205] . . . . Furthermore, the GTLA
also lists specific types of claims for which immunity is not removed. Id. §
29-20-205(2) (immunity not removed for “[f]alse imprisonment . . ., false
arrest, malicious prosecution, intentional trespass, abuse of process, libel,
slander, deceit, interference with contract rights, infliction of mental
anguish, invasion of right of privacy, or civil rights”) . . . .
Id. (additional internal citations omitted).
Tennessee Code Annotated § 29-20-205 states in pertinent part:
Immunity from suit of all governmental entities is removed for injury
proximately caused by a negligent act or omission of any employee within
the scope of his employment except if the injury arises out of:
***
(2) False imprisonment pursuant to a mittimus from a court, false arrest,
malicious prosecution, intentional trespass, abuse of process, libel,
slander, deceit, interference with contract rights, infliction of mental
anguish, invasion of right of privacy, or civil rights;1
1
In Johnson v. City of Memphis, 617 F.3d 864, 872 (6th Cir. 2010), the Sixth Circuit Court of Appeals
noted that claims subject to the “civil rights” exception in the GTLA include claims brought under the
United States Constitution and 42 § U.S.C. 1983. “Th[e] reference to ‘civil rights’ [in the GTLA] has
been interpreted to include claims arising under the U.S. Constitution and 42 U.S.C. § 1983.” Partee v.
City of Memphis, 449 F. App’x. 444, 448, 2011 WL 5865443, at *4 (6th Cir. 2011) (citing Johnson, 617
F.3d at 872). Decisions from federal courts, although not controlling authority, can be persuasive
authority for this Court. See, e.g., Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997).
7
(Emphasis added).
In a case factually similar to the one at bar, Crowe v. Bradley Equip. Rentals &
Sales, Inc., No. E2008-02744-COA-R3-CV, 2010 WL 1241550, at *4 (Tenn. Ct. App.
Mar. 31, 2010), this Court stated:
[The plaintiff] alleged multiple causes of action against [a defendant
detective and the City of Cleveland] including false arrest; false
imprisonment; malicious prosecution; abuse of process; outrageous
conduct; and violation of Article I, Section 18 of the Tennessee
Constitution.
However, as a threshold matter, we will consider whether the trial
court properly dismissed [the plaintiff’s] claims against Detective Smith
and the City of Cleveland pursuant to the Tennessee Government Tort
Liability Act (“GTLA”), Tenn. Code Ann. § 29-20-101 et seq. GTLA
removes the immunity of governmental entities for the negligent acts and
omissions of employees acting within the scope of their employment except
if the alleged injury arises out of false imprisonment pursuant to a mittimus
from a court, false arrest, malicious prosecution, abuse of process, or,
infliction of mental anguish. See Tenn. Code Ann. § 29-20-205(2) (2000).
Under GTLA, municipalities also retain immunity for “the institution or
prosecution of any judicial or administrative proceeding, even if malicious
or without probable cause[.]” See Tenn. Code Ann. § 29-20-205(5) (2000).
[The plaintiff] alleged a claim of outrageous conduct, which is the
equivalent to a claim for intentional infliction of emotional distress. Bain v.
Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997) (citing Moorhead v. J.C.
Penny Co., Inc., 555 S.W.2d 713, 717 (Tenn. 1977)). Thus, GTLA
“immunizes [governmental entities] from suits for ‘intentional infliction of
emotional distress.’” Johnson v. South Cent. Human Res. Agency, 926
S.W.2d 951, 952-53 (Tenn. Ct. App. 1996).
As the trial court noted, [the plaintiff] only brought this suit against
Detective Smith in his official capacity. “When a suit is brought against a
police officer in his official capacity, it is actually a suit against the
government entity.” Parks v. City of Chattanooga, No. 1:02-CV116, 2003
WL 23717092, at *7 (E.D. Tenn. Dec. 15, 2003). Therefore, in
circumstances where GTLA immunizes a governmental entity, it follows
that an officer is also immune when sued in his official capacity. See
Baines v. Wilson Co., 86 S.W.3d 575, 579-80 (Tenn. Ct. App. 2002).
8
Accordingly, [the plaintiff] cannot prevail on his claims of false
imprisonment, false arrest, malicious prosecution, abuse of process, and
outrageous conduct against Detective Smith and the City of Cleveland
because they are immune pursuant to GTLA. See Limbaugh v. Coffee Med.
Ctr., 59 S.W.3d 73, 84 (Tenn. 2001). We find that summary judgment in
favor of Detective Smith and the City of Cleveland was appropriate and
affirm the trial court’s dismissal of these claims.
(Footnotes omitted.)
Similarly, in this case, Mr. Olivier’s claims of malicious prosecution, intentional
infliction of emotional distress or outrageous conduct, and civil rights violations2 were
properly dismissed pursuant to the immunity afforded to Defendants by the GTLA. See
Tenn. Code Ann. § 29-20-205(2). The City is a governmental entity, and the Officers
were sued regarding actions that took place when they were acting in their official
capacities. See Crowe, 2010 WL 1241550, at *4. We therefore affirm the trial court’s
determination that Defendants were immune from the above-enumerated claims.
VI. Statute of Limitations
The trial court also determined that a significant number of Mr. Olivier’s claims
were barred by operation of the applicable statute of limitations. The court elucidated in
pertinent part:
[A] number of the torts alleged by the Plaintiff, namely false imprisonment,
intentional infliction of emotional distress, and civil rights violations, have
a statute of limitations period of one year. As the Plaintiff’s cause of action
accrued on June 1, 2015, at the time of his arrest, and the Plaintiff filed the
Complaint in this action on August 11, 2016, the claims are dismissed as
untimely.
We agree with the trial court’s determination. A one-year statute of limitations is
applicable to claims of intentional infliction of emotional distress or outrageous conduct,
false imprisonment, malicious harassment, and civil rights violations. See Leach v.
Taylor, 124 S.W.3d 87, 91 (Tenn. 2004); Crowe, 2010 WL 1241550, at *6 (citing Tenn.
Code Ann. § 28-3-104(a)(1)); Smith v. EZ Pawn Co., No. E2000-02741-COA-R3-CV,
2001 WL 984920, at *1 (Tenn. Ct. App. Aug. 28, 2001); Gray v. 26th Judicial Drug Task
2
We further note that Mr. Olivier has not alleged that his purported civil rights violations were the result
of any municipal policy, practice, or custom. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691
(1978).
9
Force, No. 02A01-9609-CV-00218, 1997 WL 379141, at *2 (Tenn. Ct. App. July 8,
1997). The applicable statute provides in relevant part:
(a)(1) Except as provided in subdivision (a)(2), the following actions shall
be commenced within one (1) year after the cause of action accrued:
(A) Actions for libel, injuries to the person, false imprisonment,
malicious prosecution, or breach of marriage promise;
(B) Civil actions for compensatory or punitive damages, or both,
brought under the federal civil rights statutes . . . .
Tenn. Code Ann. § 28-3-104(a)(1)(A)-(B) (Supp. 2016) (emphasis added). Furthermore,
a cause of action accrues “when the injury on which the action is based is known or
should have been discovered by a reasonable person.” See Gray, 1997 WL 379141, at *2
(citing Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984)). Therefore, the trial court
properly determined that Mr. Olivier’s claims accrued on June 1, 2015, more than one
year prior to the filing of his complaint. We conclude that Mr. Olivier’s claims of
intentional infliction of emotional distress or outrageous conduct, false imprisonment,
malicious harassment, and civil rights violations are barred by the applicable one-year
statute of limitations.
VII. Failure to Allege Essential Elements of Claims
The trial court dismissed Mr. Olivier’s remaining claims of inverse condemnation
and conversion because he failed to allege essential elements of each cause of action. We
will address each claim in turn.
A. Inverse Condemnation
Mr. Olivier averred a claim of inverse condemnation stemming from the alleged
“physical taking of Mr. Olivier’s property for public use” while the Officers “searched
and seized his automobile.” In Windrow v. Middle Tenn. Elec. Membership Corp., 376
S.W.3d 733, 736-37 (Tenn. Ct. App. 2012), this Court explained the law applicable to a
claim for inverse condemnation:
The Tennessee Constitution provides that “no man’s particular
services shall be demanded, or property taken, or applied to public use,
without the consent of his representatives, or without just compensation
being made therefor[e].” Tenn. Const. art. 1, § 21. This constitutional
provision sets out the power of eminent domain, that is, the power of the
10
government to take privately-owned property, in particular land, and
convert it to public use, subject to reasonable compensation to the property
owner for the taking. Edwards v. Hallsdale-Powell Util. Dist., 115 S.W.3d
461, 464 (Tenn. 2003) (citing Jackson v. Metro. Knoxville Airport Auth.,
922 S.W.2d 860, 861 (Tenn. 1996)); see Black’s Law Dictionary 541 (7th
ed. 1999) (“eminent domain”). Condemnation is the exercise of the power
of eminent domain, that is, the act of assigning property to public use,
subject to reasonable compensation. Black’s Law Dictionary 287 (7th ed.
1999) (“inverse condemnation”). Inverse condemnation is an action by a
property owner for compensation where there was a “taking” but no formal
condemnation proceedings were filed. Black’s Law Dictionary 287 (7th ed.
1999) (“inverse condemnation” under “condemnation”); Edwards, 115
S.W.3d at 464-65; Jackson, 922 S.W.2d at 861-62 (citing Johnson v. City of
Greeneville, 222 Tenn. 260, 435 S.W.2d 476, 478 (1968)). Thus,
condemnation is initiated by the taking authority, while an inverse
condemnation proceeding is initiated by the landowner. B & B Ent. of
Wilson County v. Lebanon, 318 S.W.3d 839, 846 n.6 (Tenn. 2010).
As this Court recently elucidated:
To set forth a prima facie case for inverse condemnation, a plaintiff must
allege the following elements: (1) “a direct and substantial interference
with the beneficial use and enjoyment of the property at issue”; (2) “[t]he
interference must be repeated and not just occasional”; and (3) “the
interference must peculiarly affect the property at issue and result in a loss
of market value.”
Peterson v. Putnam Cty., No. M2005-02222-COA-R3-CV, 2006 WL 3007516, at *4
(Tenn. Ct. App. Oct. 19, 2006) (quoting Jackson v. Metro. Knoxville Airport Auth., 922
S.W.2d 860, 865 (Tenn. 1996)).
Tennessee Code Annotated § 29-16-123 (2012) sets forth the statutory scheme
regarding an action for inverse condemnation, providing in pertinent part:
If, however, such person or company has actually taken possession of such
land, occupying it for the purposes of internal improvement, the owner of
such land may petition for a jury of inquest, in which case the same
proceedings may be had, as near as may be, as hereinbefore provided; or
the owner may sue for damages in the ordinary way, in which case the jury
shall lay off the land by metes and bounds and assess the damages, as upon
the trial of an appeal from the return of a jury of inquest.
11
In the case at bar, Mr. Olivier has failed to allege essential elements of a claim of
inverse condemnation. Mr. Olivier has merely alleged the “taking” of his automobile
during the time when the Officers “searched and seized” it. Therefore, Mr. Olivier has
alleged, at most, an occasional interference with personal property, resulting in no loss of
market value. This is insufficient to establish an inverse condemnation claim.3 See Tenn.
Code Ann. § 29-16-123; Peterson, 2006 WL 3007516, at *4. We therefore affirm the
trial court’s determination that Mr. Olivier failed to allege essential elements of his
inverse condemnation claim.
We further note that any claim for inverse condemnation is subject to the one-year
statute of limitations contained in Tennessee Code Annotated § 29-16-124 (2012). As
such, Mr. Olivier’s inverse condemnation claim is also barred by its applicable statute of
limitations.
B. Conversion
Conversion is an intentional tort, requiring “the appropriation of tangible property
to a party’s own use in exclusion or defiance of the owner’s rights.” PNC Multifamily
Capital Inst. Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 553
(Tenn. Ct. App. 2012). “[A] party seeking to make out a prima facie case of conversion
must prove: (1) the appropriation of another’s property to one’s own use and benefit, (2)
by the intentional exercise of dominion over it, (3) in defiance of the true owner’s rights.”
Id. Furthermore, “[t]o state a cause for misappropriation or conversion, under Tennessee
Rule of Civil Procedure 9.02, [the plaintiff] would need to plead all acts of
misappropriation with particularity.” Id.
In this action, Mr. Olivier failed to plead any element of conversion with
particularity. Mr. Olivier pled that “defendants interfered with the plaintiff’s possession
by falsely arresting plaintiff restricting his freedom and rights to access his automobile
without any legislative authority.” Accordingly, Mr. Olivier failed to describe how
Defendants appropriated his property for their use and benefit or how they exercised
dominion over his property in defiance of his ownership rights. We therefore affirm the
trial court’s determination that Mr. Olivier failed to allege essential elements of his claim
of conversion.
3
As explained in Windrow, 376 S.W.3d at 736-37, a condemnation or eminent domain action is different
than an action alleging inverse condemnation. See Tenn. Code Ann. § 29-16-101, -104 (2012) (eminent
domain or condemnation action initiated by taking authority); Tenn. R. Civ. P. 71 (concerning eminent
domain or condemnation); c.f. Tenn. Code Ann. § 29-16-123 (inverse condemnation action initiated by
landowner).
12
VIII. Motions for Default Judgment
Finally, Mr. Olivier contends that the trial court erred by denying his motions for
default judgment. Mr. Olivier initially filed a motion for default judgment on September
29, 2016. The City responded to this motion on October 3, 2016, asserting that due to the
City’s standing as a governmental entity, the City had sixty days to respond pursuant to
the GTLA and that such time period had yet to elapse. See Tenn. Code Ann. § 29-20-
304. Two days following, the City filed a motion to dismiss in response to the complaint.
On October 6, 2016, the trial court entered an order denying Mr. Olivier’s motion for
default judgment upon finding that the City was a governmental entity entitled to a sixty-
day period to respond to the complaint and that that time had yet to expire when the
motion for default judgment was filed.
Mr. Olivier subsequently filed another motion for default judgment on October 17,
2016, again claiming that Defendants had failed to timely answer the complaint. The
City filed a response on October 19, 2016, referencing the motion to dismiss previously
filed on October 5, 2016, within the allotted sixty-day period. The trial court entered an
order on November 5, 2016, denying the motion for default judgment upon determining
that the City had properly responded.
Applicable to this issue is Tennessee Code Annotated § 29-20-304, which
provides:
(a) A governmental entity or employee shall have sixty (60) days in which
to answer or otherwise respond to any claim, action, or suit brought
pursuant to this chapter.
(b) A claim shall be deemed to have been denied if at the end of the sixty-
day period the governmental entity . . . has failed to approve or deny the
claim.
Furthermore, Tennessee Rule of Civil Procedure 55.01 provides that a default judgment
may only be entered against “a party . . . [that] has failed to plead or otherwise defend as
provided by these rules . . . .”
In this case, it is undisputed that Defendants filed a motion to dismiss within the
appropriate sixty-day timeframe. This Court has previously held that “a defendant who
files a motion to dismiss is ‘otherwise defend[ing]’ as provided by the rules for the
purposes of forestalling a default judgment.” See First Union Nat’l Bank of Tenn. v.
Abercrombie, No. M2001-01379-COA-R3-CV, 2003 WL 22251347, at *3 (Tenn. Ct.
App. Oct. 2, 2003); see also Horton v. Tenn. Dep’t of Corr., No. M1999-02798-COA-
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R3-CV, 2002 WL 31126656, at *3 (Tenn. Ct. App. Sept. 26, 2002). Ergo, Defendants
have not “failed to plead or otherwise defend” this action. The trial court did not abuse
its discretion in denying Mr. Olivier’s motions for default judgment.
IX. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment in all respects.
This case is remanded to the trial court for collection of costs assessed below. Costs on
appeal are assessed to the appellant, Mardoche Olivier.
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THOMAS R. FRIERSON, II, JUDGE
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