B. NATHAN HUNT ET AL.
DAVID LOWERY ET AL.
Session October 9, 2019
from the Circuit Court for Montgomery County No.
63CC1-2017-CV-1882 Ross H. Hicks, Judge
an unlawful detainer action in which the owner permitted the
defendants to live in her house rent-free. The owner was
later declared incompetent, and her daughters/co-conservators
sought to evict the defendants. The general sessions court
awarded the co-conservators possession, and the defendants
appealed to circuit court. Once the owner died, an
administrator was substituted for the co-conservators as the
plaintiff. The circuit court awarded the administrator rent
for the period between the date the detainer summons was
filed and the date the owner died. The defendants appealed,
and we reverse the trial court's judgment. Neither the
co-conservators nor the administrator ever filed a pleading
seeking an award of rent from the defendants; therefore, the
trial court erred when it awarded rent to the administrator.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
N. Lowery and Thomas E. Smith, Clarksville, Tennessee, pro
Nathan Hunt, Clarksville, Tennessee, for the appellee, Estate
of Waltraud Elisabeth LeMonte, and pro se.
D. Bennett, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J.,
D. BENNETT, JUDGE
Elisabeth LeMonte owned a house in Clarksville, Tennessee.
Beginning in the spring of 2014, she gave her grandson, David
Lowery, permission to live there rent-free. At some point in
2015, Ms. LeMonte allowed Thomas Smith and his daughter to
move into the house with Mr. Lowery. Ms. LeMonte never
charged either Mr. Lowery or Mr. Smith rent to live in the
LeMonte was declared incompetent sometime in 2016, and her
daughters Bonnie Castor and Elke LeMonte were named her
co-conservators. On July 24, 2017, Ms. Castor and Ms. LeMonte
filed a detainer summons against Mr. Lowery and Mr. Smith
(together, "the Defendants") in general sessions
court. The co-conservators acknowledged that the Defendants
were living in the house pursuant to an oral lease, and they
stated that they were seeking possession of the property as a
result of the Defendants' "failure to maintain
premises causing cancellation of insurance." The
detainer summons form the co-conservators filed included
boxes that could be checked to recover particular items
including rent, damages, and attorney fees. The
co-conservators checked the boxes next to "damages"
and "attorney fees," but they left the box next to
"rent" unchecked. The form included the following
language: "Rent payments of $ __ are due on the ___ day
of each ___, and the amount of rent owing through and unpaid
is $." The co-conservators stated that rent payments of
"$0.00" are due and wrote "N/A" on each
of the other blank lines.
general sessions court held a hearing on August 30, 2017, and
awarded the co-conservators possession of the property. The
issue of damages was reserved for a later hearing. The
Defendants appealed the judgment to circuit court on
September 8. The co-conservators filed a motion for
"immediate writ of possession" on September 12. By
order dated October 17, the circuit court denied the request
for immediate possession, but it ordered the Defendants to
increase their appeal bond from $500 to $10, 000. The
Defendants moved for a more definite statement in which they
asked the co-conservators to explain the basis of their cause
of action. The record does not include any response by the
co-conservators to this motion. The Defendants then filed a
counterclaim on March 9, 2018, asserting fraud, negligence,
retaliation, and unlawful entry. Ms. LeMonte died on March
13, 2018, and B. Nathan Hunt, Administrator ad Litem for the
Estate of Waltraud Elisabeth LeMonte
("Administrator"), was substituted for the
co-conservators as the plaintiff in this action.
hearing was held on January 2, 2019, and the trial court
entered a Final Order on January 9. The court found that any
consent Ms. LeMonte gave the Defendants to live in her house
rent-free was revoked when she was declared incompetent and
her daughters were appointed her co-conservators. The court
ruled that the Defendants were not liable for any rent from
the time the co-conservators were appointed until the time
the detainer summons was filed because the parties "were
involved in discussions regarding payment of rent during said
time." With regard to the seven-month period from the
date the summons was filed until Ms. LeMonte's death,
however, the court ruled that the Defendants are liable for
the fair market rental value of the house. The court
determined that the fair market rental value was $1, 200 per
month, for a total of $8, 400, and ordered that that amount
be paid from the $10, 000 bond the defendants posted in
September 2018. The trial court ordered that the remaining
cash bond in the amount of $1, 600 be returned to the
Defendants and then dismissed the Defendants'
counterclaims with prejudice.
Lowery and Mr. Smith appealed the trial court's judgment.
They argue that they were denied their rights to due process
during the final hearing on January 2, 2019. We note that the
appellate record contains neither a transcript of the hearing
nor a statement of the evidence. See Tenn. R. App.
P. 24(c) (directing appellant to prepare statement of
evidence when transcript not available). As a result, we are
unable to review the proceedings in the trial court to
determine whether, in fact, the Defendants were denied their
rights to due process, as they contend.
we are unable to review the trial court's proceedings, we
are able to address the Defendants' argument that the
Administrator is not entitled to an award of rent. As Mr.
Lowery points out in his brief, neither the co-conservators
nor the Administrator ever made a request for rent from the
Defendants. When the co-conservators filed the detainer
warrant, they indicated that "$0" was owed for
rent. They failed to request that the Defendants be ordered
to pay rent going forward in the event they did not vacate
the property. Once the case was appealed to the circuit court
and the co-conservators filed a motion seeking an immediate
writ of possession, they wrote that "Defendants have not
surrendered possession of the property." The
co-conservators stated that the property "could be
leased at an amount in excess of $1, 000 per month" and
asked that the Defendants be ordered to post a bond "in
the amount of double the value of one (1) year's
rent." Again, the co-conservators failed to request ...