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Amrokbeer v. Roberts

Court of Appeals of Tennessee, Nashville

May 28, 2015

ABDELRAHMAN AMROKBEER
v.
RICHARD ROBERTS, ET AL.

Session date: October 23, 2014

Appeal from the Chancery Court for Davidson County No. 131042I Claudia Bonnyman, Chancellor

Matthew R. Armour, Somerville, Tennessee, for the appellant, Abdelrahman Amrokbeer.

Robert G. Cooper, Attorney General and Reporter, and Joseph F. Whalen, Acting Solicitor General, and R. Mitchell Porcello, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Revenue.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Richard H. Dinkins and Brandon O. Gibson, JJ. joined.

OPINION

W. NEAL McBRAYER, JUDGE

I. Factual Background

On November 5, 2010, Appellant, Abdelrahman Amrokbeer, pled guilty to one count of attempting to evade sales tax, Tennessee Code Annotated § 67-1-1440(g) (2013). The criminal action stemmed from the failure of E & A Inc., the owner and operator of the Bull Market convenience store, to collect and remit sales tax. As part of Appellant's plea agreement, the criminal court ordered him to pay $17, 500 in restitution to the Department of Revenue (the "Department"). Following the successful completion of judicial diversion, Appellant sought and obtained an expungement of his criminal record.

On March 19, 2013, the Department notified Appellant of an individual assessment of $137, 493.76 for the sales and use taxes collected but not remitted by E & A, Inc. The Department assessed the taxes against Appellant individually as a responsible party under Tennessee Code Annotated § 67-1-1443(a) (2013). On July 23, 2013, Appellant challenged the assessment by filing a complaint in the Chancery Court for Davidson County. Appellant's primary theory was that the payment of the $17, 500 in restitution ordered as part of his criminal sentence was the full extent of his liability to the Department. Furthermore, he argued that "the March 19, 2013 assessment against Plaintiff is 'unjust, illegal or incorrect' because of the legal doctrines of release, breach of contract, res judicata, judicial estoppel, unclean hands, waiver and the seizing of Plaintiffs property without due process of law."

On August 26, 2013, the Department filed a motion to dismiss for failure to state a claim for which relief can be granted under Tennessee Rule of Civil Procedure 12.02(6). After conducting a hearing, the trial court dismissed the complaint "in its entirety." In its order, the trial court stated the following:

The Court finds that the plaintiffs complaint fails to state a claim for which relief can be granted because the plaintiffs criminal plea agreement and payment of restitution to the Department of Revenue in the amount of $17, 500 did not bar the Department of Revenue from assessing civil taxes, penalty, and interest against the plaintiff pursuant to Tenn. Code Ann. § 67-1-1443 in the amount of $137, 493.

The trial court also found against Appellant on all other grounds for relief The trial court held that the Department was entitled to an award of attorneys' fees but reserved the determination of the amount of attorneys' fees until the conclusion of all appeals. Appellant timely appealed.

II. Analysis

This appeal arises from the grant of a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. The standards by which Tennessee courts are to assess a Rule 12.02(6) motion to dismiss are well established. As our Supreme Court stated in Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011), "[a] Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff's proof or evidence." Id. at 426. The motion is resolved "by an examination of the pleadings alone." Id. (citations omitted). By filing a motion to dismiss, the defendant "admits the truth ...


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