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Olivier v. City of Clarksville

Court of Appeals of Tennessee, Nashville

September 20, 2017

MARDOCHE OLIVIER
v.
CITY OF CLARKSVILLE, ET AL.

          Assigned on Briefs Date: July 3, 2017

         Appeal from the Circuit Court for Montgomery County No. 63CC1-2016-CV-2035 Ross H. Hicks, Judge

         The trial court dismissed this action as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. We affirm.

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

          Mardoche Olivier, Clarksville, Tennessee, Pro Se.

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

          Gregory D. Smith, Clarksville, Tennessee, for the appellee, Maxx'd Out Towing.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Brandon O. Gibson, J., joined.

          MEMORANDUM OPINION [1]

          JOHN W. McCLARTY, JUDGE

         This case arises from the towing of Mardoche Olivier's ("Plaintiff") 2004 BMW parked in front of his property in Clarksville, Tennessee. Plaintiff filed suit against the City of Clarksville ("the City"); the City's officers and employees; and the private entity that towed the vehicle, Maxx'd Out Towing ("the towing company"). Plaintiff asserted a myriad of claims in support of his complaint, including a claim for conversion. The complaint spans 22 pages and is, at times, incomprehensible in nature. The court dismissed, sua sponte, all claims relating to the City's officers and employees and the towing company for failure to state a claim upon which relief can be granted pursuant to Rule 12.02 (6) of the Tennessee Rules of Civil Procedure.[2] However, the court allowed the action to proceed against the City, finding that the complaint did contain a potentially viable cause of action for conversion.

         The City responded to the complaint with a motion to dismiss, asserting that it was also entitled to dismissal pursuant to Rule 12.02(6). The City claimed that it was entitled to immunity and alternatively asserted that Plaintiff failed to allege a viable cause of action for conversion. The City explained that Plaintiff failed to establish (1) that Plaintiff owned the vehicle at issue; (2) that the vehicle was appropriated for the City's benefit; or (3) that the vehicle was not made reasonably available for return through the payment of a fee or other routine requirements.

         Thereafter, Plaintiff filed a motion to amend his complaint. The City objected. The court denied the motion, finding that the motion was futile because it did not bring any additional claims or causes of action against the City.

         Plaintiff never filed a written response to the motion to dismiss. Instead, he orally responded at the hearing on the motion. No transcript or statement of the evidence was filed. Following the hearing, the court dismissed the action, finding as follows:

1. First, [Plaintiff] failed to comply with [the] Tennessee Rules of Civil Procedure 8.01, which provides [that the complaint] shall contain a short and plain statement of the ...

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