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Outloud! Inc. v. Dialysis Clinic, Inc.

Court of Appeals of Tennessee, Nashville

September 11, 2017

OUTLOUD! INC.
v.
DIALYSIS CLINIC, INC., ET AL.

          Session August 15, 2017

         Appeal from the Circuit Court for Davidson County No. 16C930 Joseph P. Binkley, Jr., Judge.

         Appellant 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.

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

          L. Vincent Williams, Nashville, Tennessee, for the appellant, Outloud! Inc.

          Peter C. Sales and Frankie N. Spero, Nashville, Tennessee, for the appellees, Dialysis Clinic, Inc., and Ted Jensen.

          Kenny Armstrong, J., delivered the opinion of the court, in which Arnold B. Goldin and Brandon O. Gibson, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         Dialysis 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 agreements.

         In July 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!

         On June 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.

         II. ...


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