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Olivier v. Travis Excavating

Court of Appeals of Tennessee, Nashville

June 26, 2018

MARDOCHE OLIVIER
v.
TRAVIS EXCAVATING, ET AL.

          Assigned on Briefs October 2, 2017

          Appeal from the Circuit Court for Montgomery County No. MC-CC-2017-CV-280 Ross H. Hicks, Judge

         Trial court dismissed the plaintiff's complaint due to its failure to state a claim, pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm.

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

          Mardoche Olivier, Clarksville, Tennessee, Pro Se.

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

          Darrick Lee O'Dell, Nashville, Tennessee, for the appellee, Travis Excavating.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and J. Steven Stafford, P.J., W.S., joined.

          MEMORANDUM OPINION [1]

          RICHARD H. DINKINS, JUDGE

         In this appeal, Mardoche Olivier appeals the dismissal of a suit he filed in Montgomery County Circuit Court on February 9, 2017, naming Travis Excavating, Mike Baker, Lance Baker, Mayor Kim McMillian, and the City of Clarksville as defendants. Mr. Olivier sought to recover for the alleged destruction of his real and personal property under various theories, including inverse condemnation, conversion, civil rights violations, violations of the Tennessee and United States constitutions, emotional distress, racketeering and conspiracy.[2]

         The trial court dismissed the complaint sua sponte on five grounds: (1) failure to comply with Tennessee Rule of Civil Procedure 8.01; (2) that the City of Clarksville was immune from suit under the Governmental Tort Liability Act; (3) that Mr. Olivier failed to allege essential elements of his claim; (4) that the action was time-barred in that it was essentially an appeal of a decision the Clarksville Building and Codes Department made to demolish a structure on his property on April 12, 2016, and should have been filed within sixty days thereof; (5) certain of Mr. Olivier's claims were barred by res judicata; and (6) pursuant to Tennessee Rule of Civil Procedure 12.02(5) for failure to serve the individual defendants and Rule 12.02(6) for failure to state a claim for relief as to Travis Excavating. Mr. Olivier filed a motion for additional findings of fact, which the trial court denied, stating that the six-page order of dismissal "contains all the findings and conclusions this Court intends to make in the matter."

         Mr. Olivier appeals, stating the sole issue for our review as follows: "Whether the court erred when it dismissed Mr. Olivier pro se complaint against City of Clarksville under rule 12.02(6) failure to state a claim-involuntary dismissal of pro se complaint."

         In considering an appeal from a trial court's dismissal of a complaint pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure, the Court takes all allegations of fact in the complaint as true, and reviews the trial court's legal conclusions de novo with no presumption of correctness. Tenn. R. App. P. 13(d); Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996). "The failure to state a claim upon which relief can be granted is determined by an examination of the complaint alone." Cook v. Spinnaker's of Rivergate. Inc., 878 S.W.2d 934, 938 (Tenn. 1994). "The basis for the motion is that the allegations contained in the complaint, considered alone and taken as true, are insufficient to state a claim as a matter of law." Id. In considering a motion to ...


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