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Olivier v. City of Clarksville

Court of Appeals of Tennessee, Jackson

July 21, 2017

MARDOCHE OLIVIER
v.
CITY OF CLARKSVILLE, et al.

          Assigned on Briefs July 3, 2017

         Appeal from the Circuit Court for Montgomery County No. 16-CV-1496 Ross H. Hicks, Judge

         This appeal arises out of the alleged wrongful seizure of Plaintiff's personal property, mainly cars and trailers, which were removed from Plaintiff's residence by order of the City of Clarksville Building and Codes Director. Instead of appealing the decision of the Building and Codes Director pursuant to Tenn. Code Ann. §§ 27-9-101 and -102, Plaintiff filed suit against the City of Clarksville ("the City") and three city officials alleging that the removal and retention of his personal property constituted conversion and inverse condemnation. He also asserted claims for intentional infliction of emotional distress and civil rights violations under 42 U.S.C. § 1983. The City responded by filing a motion to dismiss the complaint on several grounds. The trial court granted the motion and dismissed all claims. The court ruled that the City had immunity under the Tennessee Governmental Tort Liability Act ("GTLA") because Plaintiff failed to allege a policy, practice, or custom which caused his harm. Additionally and alternatively, the court dismissed the claims of inverse condemnation, conversion, intentional infliction of emotional distress, and the § 1983 civil rights violations because the complaint failed to allege essential elements of each claim. The court also found the claims were time-barred. As for the defendants who were sued in their individual capacities, the court dismissed the claims because the complaint failed to state a claim for which relief could be granted, and because Plaintiff failed to provide a summons for service of process on each of the defendants. This appeal followed. Plaintiff raises twelve issues for us to consider on appeal. Since Plaintiff did not raise several of these issues in the trial court, they are deemed waived. As for the remaining issues, we find them unavailing for the reasons explained below. Therefore, we affirm the trial court in all respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Mardoche Olivier, Clarksville, Tennessee, Pro Se.

          D. Mark Nolan and Kathryn W. Olita, Clarksville, Tennessee, for the appellee, City of Clarksville.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Thomas R. Frierson, II, and Brandon O. Gibson, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Mardoche Oliver ("Plaintiff") filed a civil action against the City of Clarksville ("the City") and three others in their individual capacities: Mike Baker, City of Clarksville Building & Codes Director; Lance Baker, City of Clarksville Attorney; and Kim McMillan, Mayor of the City of Clarksville. All of the claims arise out of the alleged wrongful seizure of Plaintiff's personal property on May 18, 2016. The personal property, which included approximately ten cars and two trailers, were removed by order of the City of Clarksville Building and Codes Department ("the Department") dated April 13, 2016.

         Plaintiff filed his initial complaint against the City in the Circuit Court for Montgomery County on July 25, 2016, alleging inverse condemnation, conversion, intentional infliction of emotional distress, and civil rights violations under 42 U.S.C. § 1983. Shortly thereafter, Plaintiff filed a Motion for Default Judgment. The City responded to the complaint and motion by filing a Motion to Dismiss the Complaint on October 5, 2016. Plaintiff also filed a Motion to Amend portions of his complaint, which the trial court granted by order entered on October 6, 2016.

         Following a hearing, the court dismissed Plaintiff's claims. In its order, the court found that (1) Plaintiff failed to provide a short and plain statement of any of his claims as required by Tenn. R. Civ. P. 8.01; (2) the City was immune from suit under the Tennessee Governmental Tort Liability Act ("GTLA") because Plaintiff failed to allege a policy, practice, or custom which caused his harm; and (3) Plaintiff failed to allege essential elements of the claims of inverse condemnation, conversion, intentional infliction of emotional distress, and the § 1983 civil rights violations. The court also ruled that the claims were time-barred because Tenn. Code Ann. § 27-9-102 required Plaintiff to commence his action against the City within sixty days of the Department's decision, and Plaintiff did not do so. The court also dismissed the claims against the individual defendants because Plaintiff failed to state a claim for which relief could be granted, and because he failed to provide each of them with a summons for service of process. This appeal followed.

         Issues

         Plaintiff identifies twelve issues for us to consider in this appeal. We decline to consider several of his issues because he did not raise them in the trial court. Therefore, they are deemed waived. See In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001) (stating that issues not raised in the trial court are waived on appeal). As for the other issues, which are mostly argumentative and do not constitute appellate issues we can review, we discern that Plaintiff intended to raise the following issues:

1. Does the City have immunity under the GTLA?
2. Did Plaintiff fail to allege essential elements of his claims for inverse condemnation, conversion, intentional infliction of emotional distress, and the 42 U.S.C. § 1983 constitutional violations?
3. Was the action time barred pursuant to Tenn. Code Ann. § 27-9-102?
4. Did the trial court err in dismissing the individual defendants for failure to state a claim and for failure to perfect service of process?
5. Did the trial court err in denying Plaintiff's Motion for Default Judgment?

         Standard ...


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