DIALYSIS CLINIC, INC., ET AL.
Session August 15, 2017
from the Circuit Court for Davidson County No. 16C930 Joseph
P. Binkley, Jr., Judge.
appeals the circuit court's dismissal of its petition for
writs of certiorari and supersedeas for a de novo review of
an unlawful detainer action originally filed in general
sessions court. The circuit court granted Appellees'
Tennessee Rule of Civil Procedure 12.02 motion, dismissing
Appellant's petition on the ground that it was not timely
filed pursuant to Tennessee Code Annotated Section 29-18-129
and Appellant did not have a sufficient excuse for filing the
petition outside the 30 day statutory time period. Discerning
no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded.
Vincent Williams, Nashville, Tennessee, for the appellant,
C. Sales and Frankie N. Spero, Nashville, Tennessee, for the
appellees, Dialysis Clinic, Inc., and Ted Jensen.
Armstrong, J., delivered the opinion of the court, in which
Arnold B. Goldin and Brandon O. Gibson, JJ., joined.
Clinic, Inc. ("DCI") is the owner of 1703, 1705,
1707, and 1709 Church Street, Nashville (the "Church
Street Properties"). In 2004, before DCI purchased the
Church Street Properties, its predecessor in interest, Ralph
Gordon, conveyed leasehold interests in the Church Street
Properties to Ted Jensen (together with DCI,
"Appellees") and Outloud!, Inc. ("Outloud!,
" or "Appellant") pursuant to two leases. The
first lease, which was executed on February 1, 2004, was
between Mr. Gordon, Mr. Jensen, and Outloud! (the
"1707/1709 Lease"). The second lease, which was
executed on July 1, 2004, was between Mr. Gordon, Mr. Jensen,
individually, and d/b/a Outloud! (the "1703/1705
Lease"). Kevin Medley is the sole shareholder of
Outloud!. Mr. Jensen served as the Secretary and Registered
Agent for Outloud! After the 1707/1709 Lease and the
1703/1705 Lease were executed, Mr. Jensen sublet the Church
Street Properties to Mr. Medley pursuant to two sublease
of 2012, DCI purchased the Church Street Properties from Mr.
Gordon. In conjunction with the purchase, Mr. Gordon assigned
the 1703/1705 Lease and the 1707/1709 Lease to DCI. These
leases provided for termination in the event the lessees
failed to pay rent. Subsequent to DCI's purchase of the
Church Street Properties, Mr. Jensen and Outloud! failed to
make rent payments to DCI. On June 21, 2013, DCI sent notice
of termination of the leases to Mr. Jensen and Outloud!
21, 2013, DCI filed unlawful detainer actions (one for each
of the Church Street Properties) against Mr. Jensen and
Outloud! On August 2, 2013, the general sessions court
entered judgments against Mr. Jensen and Outloud! The general
sessions court awarded judgment for unpaid rent, damages,
attorney's fees, and costs; DCI was also awarded
possession of the Church Street Properties. On April 1, 2016,
approximately two years and eight months after the judgments
were entered in general sessions court, Outloud! filed a
petition for writ of certiorari, seeking review of the
general sessions' judgments, arguing that Outloud! was
not properly served in accordance with Tennessee Code
Annotated Section 29-18-115. In response to Outloud!'s
petition, DCI filed a Tennessee Rule of Civil Procedure 12.02
motion to dismiss on the ground that the petition for writ of
certiorari was time-barred. On May 12, 2016, the trial court
heard the motion to dismiss and held that the petition for
statutory writ of certiorari was time-barred under Tennessee
Code Annotated Section 29-18-129. However, the court allowed
the parties additional time to brief whether Section
29-18-129 applies to a petition for common law writ of
certiorari. The second hearing took place on June 3, 2016. By
order of June 22, 2016, the trial court granted DCI's
motion to dismiss in full and dismissed both the common law
and statutory writs of certiorari. Outloud! appeals.