STATE OF TENNESSEE ON RELATION OF V. CALVIN HOWELL ET AL.
JIMMY FARRIS ET AL.
Session: February 1, 2018
from the Chancery Court for Hardeman County No. 17784 Martha
case arose as a result of a local building inspector's
refusal to issue building permits to the owner/developer of
three commercial properties because the owner/developer did
not have a licensed general contractor overseeing
construction. Subsequently, without submitting completed
applications for the building permits or paying the required
permit fees, the owner/developer appeared before the Bolivar
city council to appeal the denials of the building permits.
Relying on the recommendation of the city attorney, the city
council determined that because the owner/developer had not
filed written building permit applications or paid building
permit fees, an appeal was not appropriate and refused to
take any action. The owner/developer then filed a complaint
for a writ of certiorari and other relief in the Chancery
Court. Following the filing of the lawsuit, the owner
completed the applications, paid the permit fees, and the
building permits were issued. The owner/developer was later
granted permission to amend his complaint to allege an
inverse condemnation claim based on a regulatory taking. The
defendants subsequently moved for summary judgment. The
Chancery Court ultimately granted defendants summary judgment
on all of the owner/developer's initial claims. The
defendants later filed a motion to dismiss as to the
owner/developer's claim for inverse condemnation. The
motion to dismiss was also granted by the Chancery Court. The
owner/developer appeals. For the reasons stated herein, the
decision of the Chancery Court is affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
Charles M. Purcell and Christopher C. Hayden, Jackson,
Tennessee, for the appellants, State of Tennessee - Civil,
and Virgil Calvin Howell.
Michael R. Hill, Milan, Tennessee, for the appellee, Jimmy
D. Burleson and Matthew R. Courtner, Jackson, Tennessee, for
the appellees, Shelia Dellinger, City of Bolivar, Tennessee,
Barrett Stevens, Tracy Byrum, James Futrell, Teresa Golden,
Randy Hill, Todd Lowe, Larry Allen McKinnie, Willie McKinnie,
and David Rhea.
B. Goldin, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J.,
B. GOLDIN, JUDGE
and Procedural History
Calvin Howell ("Appellant" or "Mr.
Howell"), an owner/developer of real estate, appeals the
dismissal of his claims which arose out of his attempts to
obtain building permits for three of his commercial
properties in Bolivar, Tennessee.
March 13, 2013, Mr. Howell filed a verified "Complaint
for Injunctive Relief, Writ of Certiorari, Declaratory
Judgment, Restraint of Improper Alienation of Property and
Damages" in the Chancery Court against Jimmy Farris,
individually and in his capacity as building and code
enforcement officer; Sheila Dellinger in her official
capacity as city administrator (the "City
Administrator"); the City of Bolivar, a municipal
corporation of the State of Tennessee in its own capacity
(the "City"), and by and through Barrett Stevens in
his official capacity as mayor of Bolivar (the
"Mayor"); and the following members of the City
Council in their official capacity: Tracy Byrum, James
Futrell, Teresa Golden, Randy Hill, Todd Lowe, Larry Allen
McKinnie, Willie McKinnie, and David Rhea (the "City
to the complaint, the events giving rise to Mr. Howell's
suit began on or about June 6, 2011, when Mr. Howell
approached Mr. Farris and verbally requested that Mr. Farris
issue building permits for the improvement and renovation of
structures located on property Mr. Howell owns at 105 (the
"Hotel") and 109 West Market Street (the
"Restaurant") in Bolivar, Tennessee. Mr. Howell
alleged that Mr. Farris told him that he was denying the
permits because Mr. Howell was not a licensed contractor
pursuant to Tennessee Code Annotated § 62-6-101 et
seq. (the "Contractor Licensing Act"), and Mr.
Howell had not hired a licensed contractor to oversee the
construction sites. It is undisputed that Mr. Howell is not a
licensed contractor, and that he had already begun
construction on these projects before he requested the
building permits. Mr. Howell further alleged that on or about
August 10, 2011, he requested a building permit for a third
project located on Pecan Grove Drive (the "Apartment
Building") and that Mr. Farris also denied this request,
again citing the Contractor Licensing Act. Mr. Howell averred
that he "advised [Mr. Farris] that as owner of the three
properties he had no factual or legal obligation under [the
Contractor Licensing Act] to either obtain a contractor's
license or to hire a licensed contractor to oversee the
construction projects." Despite Mr. Howell's
statements, Mr. Farris continued to refuse to issue the
Mr. Farris' denials, Mr. Howell alleged that he
approached the Mayor to discuss the situation. According to
Mr. Howell's complaint, the Mayor agreed with Mr. Howell
that as the owner of the properties he was exempt from the
Contractor Licensing Act and that Mr. Farris should issue the
permits to Mr. Howell. Despite whatever discussions the Mayor
may have had with Mr. Farris, Mr. Farris continued to refuse
to issue the permits.
Mr. Howell did not have the requisite building permits, he
continued working on the three projects. On December 6, 2011,
the District Attorney General contacted Mr. Howell ordering
him to cease all construction until Mr. Howell was in
compliance with the Contractor Licensing Act and other
applicable regulations. Evidently, despite the warning, Mr.
Howell continued construction, and on May 7, 2012, the
Hardeman County Grand Jury returned an indictment charging
Mr. Howell with three counts of "contracting"
without a license in violation of the Contractor Licensing
Act.On May 28, 2012, the judge presiding over
Mr. Howell's criminal case enjoined Mr. Howell from
continuing construction. However, on November 15, 2012, the
judge in the criminal case granted Mr. Howell's motion to
dismiss the indictments, lifted the injunction, and concluded
that the Contractor Licensing Act did not apply to Mr. Howell
because he was not engaged in
"contracting." The State appealed, and on February 13,
2014, the Court of Criminal Appeals reversed the circuit
court's dismissal of the indictments stating, "the
plain language of the Contractor Licensing Act provides that
the activities undertaken by Appellant must be done by a
licensed contractor." State v. Howell, No.
W2012-0285-CCA-R3-CD, 2014 WL 586003, at *6 (Tenn. Crim. App.
Feb. 13, 2014).
the appeal of the dismissal of the indictments against Mr.
Howell was pending, on January 8, 2013, Mr. Howell appeared
with his attorney before the Bolivar City Council because Mr.
Farris continued to refuse to issue the building
permits.Because of the ongoing criminal
proceedings, the City Council resolved to consult with the
City Attorney before proceeding. At the following City
Council meeting on February 12, 2013, Mr. Howell once again
appeared with his attorney. The minutes from the meeting
indicate that Mr. Howell was directed to file three building
permit applications, pay the requisite permitting fees, and
be formally denied before the City Council would proceed.
March 12, 2013, the City Council held its monthly session,
but Mr. Howell and his attorney did not appear. The minutes
from the meeting again indicate that Mr. Howell had continued
to fail to submit the permit applications or pay the
Howell initiated this litigation on March 13, 2013 with a
properly verified petition. Among other relief,
Howell sought the issuance of a statutory writ of certiorari
to review the actions of the City Council. In the
alternative, Mr. Howell sought review through the issuance of
a common law writ of certiorari. Mr. Howell also sought
liquidated damages based upon the delays allegedly caused by
the City's actions. However, for reasons unknown, the
Chancery Court did not order the City to send up the record
for review until nearly two years later.
April 30, 2013, Mr. Farris answered, and averred that he was
not required to issue the building permits to Mr. Howell
because Mr. Howell was not in compliance with the Contractor
Licensing Act. Mr. Farris also denied that Mr. Howell ever
approached him requesting the permits, submitted permit
applications, paid the permitting fees, or informed the City
of the cost of the projects so that permitting fees could be
calculated. On May 28, 2013, the City Council, City
Administrator, and Mayor answered Mr. Howell's complaint,
averring that Mr. Howell had failed to state a claim under
Tennessee Rule of Civil Procedure 12.02(6).
the case was pending, in July 2013, Mr. Howell filed the
required permit applications, paid the requisite fees, and
the three building permits were approved.
1, 2014, Mr. Farris, in his official capacity, the City
Administrator, the City Council, and the Mayor filed a motion
for summary judgment, a statement of undisputed material
facts, and a supporting memorandum that averred, inter
alia, that Mr. Howell's claims were moot because the
permits were approved in July 2013. Also in support of the
motion for summary judgment, the Appellees submitted a
portion of Mr. Howell's deposition testimony, during
which Mr. Howell admitted that he did not pay the permit fees
or submit formal permit applications until July of 2013, and
that when he eventually did so, the permits were approved.
However, Mr. Howell continued to oppose Appellees' motion
for summary judgment, and both sides submitted additional
pleadings in support of their positions. On October 17, 2014,
Mr. Howell sought permission from the Chancery Court to amend
his complaint to assert a claim for inverse condemnation
based on a regulatory taking. On December 10, 2014, the
Chancery Court held a hearing on Appellee's motion for
summary judgment and entered an order granting Mr.
Howell's motion to amend his complaint to add an
additional claim for inverse condemnation.
February 25, 2015, the Chancery Court granted Appellees
partial summary judgment. The court's initial summary
judgment order stated that Mr. Howell was entitled to review
under both a common law writ of certiorari and a statutory
writ of certiorari, and for the first time ordered the City
Council to prepare the record. Furthermore, the order stated
that Mr. Howell could seek compensatory damages in this
proceeding because "[t]he attorneys have agreed that
these damages would be appropriate under the statutory writ
of certiorari under Tenn. Code Ann. § 27-8-102(2)."
However, in this same order, the Chancery Court dismissed Mr.
Howell's claims as moot stating, "[t]he motion for
summary judgment is affirmed to the extent that it is no
longer necessary for this Court to order the City to issue
the building permits or to remove [Mr. Farris] from office
because the building permits have been issued and [Mr.
Farris] is no longer in office."
March 3, 2015, Mr. Howell filed motions to reconsider and to
strike. As a basis for the motions, Mr. Howell asserted that
Appellees' attorney had contacted his attorney on
February 25, 2015, to inform him that although both parties
believed the permits had been issued in July 2013, the
permits had only recently been issued due to a clerical
error. However, the attorneys agreed at oral argument that
the parties proceeded as if the permits had previously been
formally issued since they were approved in July 2013.
March 16, 2015, Appellees responded in opposition to Mr.
Howell's motion to strike, and on March 27, 2015,
Appellees filed a motion to revise the court's order
granting Appellees partial summary judgment. In the motion to
revise, Appellees urged the Chancery Court to amend its
previous ruling by holding that the common law writ was the
exclusive and appropriate mechanism through which Mr. Howell
could seek review of the City Council's actions.
Moreover, Appellees argued that Mr. Howell's suit should
be dismissed as moot because the permits had been issued.
Appellees' attorney also averred that he never agreed
that compensatory damages would be an available remedy to Mr.
Howell in this proceeding even if the Chancery Court
concluded that the statutory writ was the appropriate vehicle
for review of the City Council's actions.
March 27, 2015, Mr. Howell filed his "First Amended
Complaint for Injunctive Relief, Writ of Certiorari,
Declaratory Judgment, Restraint of Improper Alienations of
Property, Inverse Condemnation, and Damages, " adding a
regulatory taking claim pursuant to Article 1, Section 21 of
the Tennessee Constitution. On December 3, 2015, Appellees
moved to dismiss Mr. Howell's regulatory taking claim. On
July 7, 2016, Mr. Howell filed a memorandum of law in
opposition to Appellees' motion to dismiss.
January 11, 2017, the Chancery Court entered two orders.
First, it entered an order revising its earlier order on
Appellees' motion for summary judgment. In this order,
the court dismissed all of Mr. Howell's claims, except
for his regulatory taking claim. The court found that the
common law writ was the appropriate vehicle for review of the
City Council's actions, compensatory damages were not an
available remedy, and that the issuance of the permits
rendered Mr. Howell's claims moot. The court also entered
a second order granting Appellees' motion to dismiss Mr.
Howell's regulatory taking claim, concluding that Mr.
Farris' refusal to issue the permits "was legally
appropriate in light of the [Tennessee Court of Criminal
Appeals'] ruling in State v. Howell, 2014 WL
586003, at *5 (Tenn. Ct. Crim. App. Feb. 13, 2014)."
January 26, 2017, the parties filed a joint motion to correct
inadvertent clerical errors contained in both orders of
January 11, 2017. On February 6, 2017, the Chancery Court
entered two revised orders correcting the clerical
errors. Mr. Howell timely
Howell presents the following issues for our review:
(1) Whether the trial court erred in granting the
Defendants' motion to revise the trial court's denial
of the defendants' motion for summary judgment on the
appropriate method of judicial review as to the
Defendants' denial of the plaintiff's requested
(2) Whether the trial court erred in granting the
defendants' motion to dismiss the plaintiffs'
regulatory taking claim in reliance upon the Tennessee Court
of Criminal Appeals' ruling in State v. Howell,
2014 WL 586003, at *5 (Tenn. Crim. App. Feb. 13, 2014).
Appellees present the following issues for our review:
(3) Whether the trial court correctly dismissed [Mr.]
Howell's writ of certiorari claim for monetary damages.
(4) Whether the trial court correctly dismissed Howell's
inverse condemnation claim because he failed ...