Kevin Millen v. Raquel Hatter

10/11/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 28, 2017 Session
KEVIN MILLEN v. RAQUEL HATTER ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-001942-16 Donna M. Fields, Judge
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No. W2016-01975-COA-R3-CV
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A pro se plaintiff filed suit over the seizure of his bank account. The defendants all
moved to dismiss under Tennessee Rule of Civil Procedure 12, and the trial court granted
the motions. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
Kevin Millen, Memphis, Tennessee, pro se appellant.
Herbert H. Slatery III, Attorney General and Reporter, and W. Derek Green, Assistant
Attorney General, for the appellee, Raquel Hatter, Commissioner of the Tennessee
Department of Human Services.
Bruce L. Feldbaum and Mark Cantora, Memphis, Tennessee for the appellees, Revid
Property Management and Gus Property Manager.
Jeffrey W. Sheehan, Nashville, Tennessee for the appellees Bank of America, N.A. and
Brian T. Moynihan.
MEMORANDUM OPINION1
I.
On May 10, 2016, in the Circuit Court for Shelby County, Tennessee, Kevin
Millen filed his “Opening Complaint Asking for Injunctive Relief and Restitution for
Kevin ‘The King’[2] Millen.” The pleading named “Juvenile Court Commissioner Raquel
Hatter” and “Bank of America Brain [sic] T. Moynihan” as defendants. The pleading
accused Commissioner Hatter of “direct[ing] an illegal order” and cited Tennessee Code
Annotated § 36-5-901, which authorizes liens in aid of recovery of overdue child support.
See Tenn. Code Ann. § 36-5-901 (2017). Mr. Millen requested that he be reimbursed a
sum of money from the juvenile court and Bank of America and be awarded
“$150,000.00 for pain and suffering plus the stress of losing my home.” Despite the title
of the pleading, no injunctive relief was requested.
The same day, Mr. Millen also filed a “Motion for Color of Law Against Raquel
Hatter” and a “Motion to Show Fees & Also that Revid Did get some Money as well . .
. .” From the complaint, the two motions, and attached documents, we glean that
Mr. Millen’s checking account at Bank of America was the subject of an administrative
order for seizure of assets. The Tennessee Department of Human Services issued the
administrative order, apparently to recover an alleged child support arrearage. See id.
§ 36-5-904(2) (2017) (permitting the department of human services to attach or seize
assets of a child support obligor held in financial institutions). At the time, Raquel Hatter
served as commissioner of the department of human services. Brian T. Moynihan was,
and is now, the chief executive officer of Bank of America.
As might be expected, the seizure disrupted payments from Mr. Millen’s account.
One of those payments was intended for Revid Property Management, the property
manager for Mr. Millen’s residence. Bank of America also assessed fees against
Mr. Millen’s account, including a “Legal Order Fee” and a fee for the return of an item
due to insufficient funds.
These developments likely caused Mr. Millen to file his “Motion for Breach of
Contract – Essential Services.” The style of this motion included two additional parties:
Revid Property Management and “Gus Property Manager” (“Gus”). In the motion,
Mr. Millen asked “the court to look into the great intimidation by the Revid Company for
the reason [sic] of essential services.” The motion also alleged that Revid Property
1
Under the rules of this Court, memorandum opinions may not be published, “cited[,] or
relied on for any reason in any unrelated case.” Tenn. Ct. App. R. 10.
2
Mr. Millen had been known as “The King” since childhood.
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Management had “taken more money than they were supposed to and thought they would
be able to steal some more of my hard earned money.”
Mr. Millen made other filings, including motions for default and a motion for
summary judgment. But pertinent to this appeal, the Commissioner of the Tennessee
Department of Human Services; Bank of America, N.A. and Mr. Moynihan; and Revid
Property Management and Gus each filed motions to dismiss under Tennessee Rule of
Civil Procedure 12. The Commissioner moved to dismiss on the basis of lack of subject
matter jurisdiction, insufficiency of service of process, and failure to state a claim upon
which relief can be granted. Revid Property Management and Gus moved to dismiss on
the basis of insufficiency of service of process and failure to state a claim upon which
relief can be granted.3 Bank of America and Mr. Moynihan moved to dismiss only on the
basis of failure to state a claim upon which relief can be granted.
Following a hearing, the trial court granted the motions to dismiss in two separate
orders. In the first order, the court determined that it lacked subject matter jurisdiction
over the Commissioner as a result of sovereign immunity. The court further determined
that Bank of America and Mr. Moynihan had statutory immunity for acting in compliance
with an administrative order of seizure. In the second order granting Revid Property
Management’s and Gus’s motion to dismiss, the court did not specify the basis for the
dismissal.
II.
A.
Mr. Millen appeals from the dismissal of his action.4 We first consider his claims
against the Commissioner and the question of subject matter jurisdiction. Subject matter
jurisdiction refers to a court’s “lawful authority to adjudicate a controversy brought
before it.” Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). A court’s
subject matter jurisdiction is derived — “either explicitly or by necessary implication” —
from the state constitution or statute. Benson v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct.
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The motion of Revid Property Management also complained that the use of “‘Gus Property
Manager’ d[id] not properly identify with the necessary specificity or identification a named party to be
included as a party Defendant.”
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Bank of America and Mr. Moynihan submit that Mr. Millen’s appeal should be dismissed for
failure to comply with Rule 27 of the Tennessee Rules of Appellate Procedure, which sets forth the
requirements for appellate briefs. We agree that the brief does not meet the requirements of Rule 27. But
given the basis for the dismissal by the trial court and the fact that our review must only extend to a
limited technical record, we exercise our discretion to reach the merits of the appeal. See Chiozza v.
Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (“[T]his Court, in the discretion afforded it under
Tenn. R. App. P. 2, may waive the briefing requirements to adjudicate the issues on their merits.”).
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Ohio App. 2007). If subject matter jurisdiction is lacking, the court must dismiss the case.
Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999).
Whether a court lacks subject matter jurisdiction presents a question of law, which we
review de novo. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712-13 (Tenn. 2012).
“The State of Tennessee, as a sovereign, is immune from suit except as it consents
to be sued.” Hill v. Beeler, 286 S.W.2d 868, 869 (Tenn. 1956) (citing TENN. CONST.
art. I, § 17). In the context of sovereign immunity, the “State” includes “a state official in
h[er] official capacity.” Cox v. State, 399 S.W.2d 776, 778 (Tenn. 1965). Absent
consent from the State,
[n]o court in the state shall have any power, jurisdiction or authority to
entertain any suit against the state, or against any officer of the state acting
by authority of the state, with a view to reach the state, its treasury, funds or
property, and all such suits shall be dismissed as to the state or such
officers, on motion, plea or demurrer of the law officer of the state, or
counsel employed for the state.
Tenn. Code Ann. § 20-13-102(a) (2009).
The court appropriately dismissed Mr. Millen’s claims against the Commissioner
based on a lack of subject matter jurisdiction. Mr. Millen has cited to no authority in
which the State plainly, clearly, and unmistakably consents to suit based on the claims he
has raised. See Northland Ins. Co., 33 S.W.3d at 731. And we are aware of none. The
Tennessee Claims Commission and its commissioners “ha[ve] exclusive jurisdiction to
determine all monetary claims against the state based on the acts or omissions of ‘state
employees,’” but that jurisdiction is limited to claims falling within specified categories
defined by statute. Tenn. Code Ann. § 9-8-307(a)(1) (Supp. 2018). As Mr. Millen’s
claims fall outside those categories, “the state retains its immunity from suit.” Stewart v.
State, 33 S.W.3d 785, 790 (Tenn. 2000).
B.
The trial court granted Bank of America and Mr. Moynihan a dismissal under
Tennessee Rule of Civil Procedure 12.02(6) based on Mr. Millen’s failure to state a claim
upon which relief can be granted. A Rule 12.02(6) motion “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). Thus,
“[t]he resolution of a 12.02(6) motion to dismiss is determined by an examination of the
pleadings alone.” Id.
We “construe the complaint liberally, presuming all factual allegations to be true
and giving the plaintiff the benefit of all reasonable inferences.” Trau-Med of Am., Inc. v.
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Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). The complaint should not be
dismissed unless it appears that the plaintiff can prove no set of facts in support of his or
her claim that would warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999)
(citing Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997)). Making such a determination
also presents a question of law, which we review de novo. Id. (citing Stein v. Davidson
Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)).
Here, the trial court properly dismissed the claims against Bank of America and
Mr. Moynihan based on failure to state a claim upon which relief can be granted.
Mr. Millen’s claims relate solely to his bank’s compliance with the Tennessee
Department of Human Services’s administrative order for seizure of assets. By statute,
“[a]ll persons or entities” are “absolutely immune from any liability, civil or criminal, for
compliance with the terms of such order[s].” Tenn. Code Ann. § 36-5-905(g) (2017).
C.
We cannot determine from the trial court’s order the basis for its dismissal of
Revid Property Management and Gus. Unlike the earlier order granting the motions to
dismiss filed by the Commissioner and Bank of America and Mr. Moynihan, the later
order dismissing Revid Property Management and Gus did not incorporate the transcript
from the hearing on the motions to dismiss. Instead, the later order provides, based upon
the motions “and the entire record in this cause, . . . [t]he Motion to Dismiss filed by Gus
Property Manager and Revid Property Management is granted.” However, the motion
asserted two grounds for dismissal: insufficiency of service of process and failure to state
a claim upon which relief can be granted.
Although the order dismissing Revid Property Management and Gus is silent as to
the ground relied upon by the court, the order “should be interpreted in light of the
context in which it was entered, as well as the other parts of the record, including the
pleadings, motions, issues before the court, and arguments of counsel.” Morgan Keegan
& Co. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013). Given the content of the motion to
dismiss filed by Revid Property Management and Gus, the trial court relied on one of two
grounds.
We conclude that dismissal of the claims against Gus was appropriate for failure
to state a claim upon which relief can be granted. The pleadings filed by Mr. Millen only
reference Gus in their captions. Mr. Millen makes no factual allegations against Gus.
As for Revid Property Management, although unartfully stated, in our view,
Mr. Millen did make out a claim for relief. But we conclude dismissal was appropriate
based on insufficiency of service of process. Service of process must strictly comply
with Rule 4 of the Tennessee Rules of Civil Procedure. Hall v. Haynes, 319 S.W.3d 564,
571 (Tenn. 2010); Watson v. Garza, 316 S.W.3d 589, 593 (Tenn. Ct. App. 2008). As we
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have previously stated, where the sufficiency of service is at issue, “[t]he record must
establish that the plaintiff complied with the requisite procedural rules . . . .” Watson,
316 S.W.3d at 593. That is not the case here.
In the trial court, Mr. Millen filed no response to Revid Property Management’s
motion to dismiss, and he offered no argument or document showing that Revid Property
Management (or Gus, for that matter) was properly served. The transcript included in the
record indicates that Mr. Millen consented to the dismissal of Revid Property
Management. When asked by the trial court if he was pursuing his claims against Revid
Property Management, Mr. Millen responded with “[n]o, no, no. that’s over with.” On
the record before us, the trial court properly dismissed Mr. Millen’s claims against Revid
Property Management.
III.
For the foregoing reasons, we affirm the decision of the trial court to dismiss
Mr. Millen’s claims. We remand the case for further proceedings as may be necessary
and consistent with this opinion.
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W. NEAL MCBRAYER, JUDGE
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