Leornard Porter, Jr. v. City of Clarksville ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 6, 2010 Session
LEONARD PORTER, JR. ET AL. v. CITY OF CLARKSVILLE ET AL.
Appeal from the Circuit Court for Montgomery County
No. MCCC-CVCMC-08-1157 Ross H. Hicks, Judge
No. M2009-00884-COA-R3-CV - Filed January 25, 2010
This action arises from the issuance of stop work orders that prevented the plaintiffs from
completing the construction of their new residence. The plaintiffs brought this action against
the City of Clarksville and the Clarksville Building and Codes Department under the
Governmental Tort Liability Act (GTLA) asserting numerous and varied claims, including
claims for false statements, fraud, deception, conspiracy, discrimination, malicious
harassment, coercion, and violation of due process, and requested financial damages,
emotional damages, and punitive damages. The defendants filed a Tenn. R. Civ. P. 12.02(6)
Motion to Dismiss on the grounds that the action was a de facto appeal of the administrative
hearing on the stop work orders and that the defendants were immune under the GTLA. The
trial court granted the motion to dismiss finding that the plaintiffs failed to state a claim upon
which relief could be granted. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and R ICHARD H. D INKINS JJ., joined.
Theolana D. Porter and Leonard Porter, Jr., Clarksville, Tennessee, Pro Se.
David J. Silvus and Rebecca J. Garman, Clarksville, Tennessee, for the appellee, City of
Clarksville, Clarksville Building and Codes Department.
OPINION
This action arises from the issuance of two stop workers requiring the plaintiff,
Leonard Porter, to cease work on the construction of a residential home that Mr. Porter was
building for his family within the city limits of Clarksville, Tennessee.
Although Mr. Porter was not a licensed contractor and had little experience building
homes, Mr. Porter was functioning as his own contractor and was personally performing
much of the labor on the construction of his home. It was during the construction of the floor
for the structure that Mr. Porter contacted the Clarksville Building and Codes Department
and requested a courtesy inspection. On April 11, 2008, two inspectors from the Codes
Department visited the construction site and noted numerous problems. Four days later, on
April 15, 2008, Inspector Ferris met with Mr. Porter to discuss the deficiencies, and on that
same day, a stop work order was issued. The stop work order stated that Mr. Porter would
need to hire a structural engineer to list the various deficiencies for repair. Believing the
Codes Inspector should identify the deficiencies, Mr. Porter requested a list of the
deficiencies from the Codes Department; however, one was not provided.
After a second stop work order was issued to Mr. Porter on April 17, 2008, Mr. Porter
contacted the Director of the Codes Department, Jim Pillow, to discuss the matter. Mr. Pillow
informed Mr. Porter that he could appeal the stop work orders. Mr. Porter requested an
appeal by letter dated May 12, 2008. The appeal was heard on May 29, 2008. The appeals
board upheld the stop work orders and denied Mr. Porter’s appeal. Following a request by
Mr. Porter, he was provided with a letter, dated June 4, 2008, from the Codes Department’s
Deputy Director, Les Crocker, stating that the Board had upheld the stop work orders. Mr.
Porter picked up the letter from Deputy Director Crocker, along with a second letter by
Director Pillow, on June 6, 2008. The letter from Director Pillow was entitled a “Detailed
List of Deficiencies at Lot 566 Arbour Green South.” The letter listed some of the
deficiencies with the construction, but also stated that it was “by no means a comprehensive
list of code violations,” and further instructed that the advice of a structural engineer should
be obtained and that a letter outlining the required repairs should be provided to the
Department in order to lift the stop work orders. In his complaint, Plaintiffs allege that this
letter and the letter from Deputy Director Crocker were picked up from the Codes
Department by Mr. Porter on June 6, 2008. Thereafter, Mr. Porter had another conversation
with Director Pillow, who informed him that a local contractor, as opposed to a structural
engineer, could be hired to list the deficiencies. Mr. Porter did not hire a contractor or
structural engineer, and the construction of his new residence remained at a standstill.
On September 25, 2008, Mr. Porter, his wife, and their minor children filed this action
against the City of Clarksville and the Clarksville Building and Codes Department
(hereinafter “the City”). A revised complaint was filed on October 15, 2008, adding claims
for punitive and emotional damages. On January 13, 2009, Plaintiffs filed an Amended &
Substituted Complaint for damages and for “failure to enforce adopted building code
policies, investigate the issuance of fraudulent documents, correct discriminatory actions,
negligence, malicious harassment, and criminal conspiracy.” Plaintiffs also sought financial
damages for the deterioration of the property and construction materials, emotional damages,
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and punitive damages. On February 11, 2009, the City filed a Tenn. R. Civ. P. 12.02(6)
Motion to Dismiss contending this action was a de facto appeal of a decision by an
administrative board, that Plaintiffs had not followed the proper procedure to appeal that
decision and, therefore, the action should be dismissed. The City also argued that it was
immune under the Governmental Tort Liability Act. On March 9, 2009, following a hearing
on the motion to dismiss, the trial court dismissed this action. Plaintiffs filed a timely appeal.
S TANDARD OF R EVIEW
The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether
the pleadings state a claim upon which relief can be granted. A Rule 12 motion only
challenges the legal sufficiency of the complaint. It does not challenge the strength of the
plaintiff’s proof. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg,
P.A., 986 S.W.2d 550, 554 (Tenn. 1999). In reviewing a motion to dismiss, we must liberally
construe the complaint, presuming all factual allegations to be true and giving the plaintiff
the benefit of all reasonable inferences. See Pursell v. First American National Bank, 937
S.W.2d 838, 840 (Tenn. 1996); see also Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d
691, 696-97 (Tenn. 2002). Thus, a complaint should not be dismissed for failure to state a
claim unless it appears that the plaintiff can prove no set of facts in support of his or her
claim that would warrant relief. (emphasis added) See Doe v. Sundquist, 2 S.W.3d 919, 922
(Tenn. 1999); Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848 (Tenn. 1978).
Making such a determination is a question of law. Our review of a trial court’s
determinations on issues of law is de novo, with no presumption of correctness. Frye v. Blue
Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 713 (Tenn. 2002); Bowden v. Ward, 27
S.W.3d 913, 916 (Tenn. 2000); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
A NALYSIS
Plaintiffs contend that immunity was removed pursuant to Tenn. Code Ann. § 29-20-
205, which removes immunity for injuries proximately caused by a negligent act or omission
of any government employee within the scope of his employment, and that the City is liable
for the negligent acts or omissions of the City’s employees for their failure to comply with
City of Clarksville Codes and International Residential Building Codes. Conversely, the City
contends that the alleged negligent acts and omissions of its employees fall within the
purview of Tenn. Code Ann. § 29-20-205(1)-(3) and therefore immunity is not removed.
The Tennessee Governmental Tort Liability Act codifies the general common law rule
that ‘“all governmental entities shall be immune from suit for any injury which may result
from the activities of such governmental entities,’ Tenn. Code Ann. § 29-20-201(a), subject
to statutory exceptions in the Act’s provisions.” Limbaugh v. Coffee Med. Ctr., 59 S.W.3d
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73, 79 (Tenn. 2001). Immunity is removed under certain situations, one of which is
enumerated under Tenn. Code Ann. § 29-20-205, as Plaintiffs cite to, for negligent acts or
omissions of government employees acting within the scope of their employment.
Tenn. Code Ann. § 29-20-205 also provides situations under which immunity is not
removed, including “the issuance, denial, suspension or revocation of, or by the failure or
refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or
similar authorization.” Tenn. Code Ann. § 29-20-205(3) (emphasis added). The City
contends the acts and omissions at issue fall within this provision of the statute, and, thus
immunity has not been removed. We agree.1
Our Supreme Court recognized that immunity is not removed for the failure to issue
a building permit in Paduch v. City of Johnson City, 896 S.W.2d 767, 768 (Tenn. 1995). In
this action, the Codes Department issued a “stop work” order on the construction to which
a building permit had previously been obtained. If a City retains immunity for the failure to
issue a building permit, it also retains immunity for the issuance of an “order” to cease
construction under a building permit.2 The City’s actions fall under Tenn. Code Ann. § 29-
20-205(3) as the “issuance” of an “order.” Accordingly, the City has immunity and Plaintiffs
have failed to state a claim upon which relief can be granted against the City.3
1
The City also contended that its actions fall within Tennessee Code Annotated section 29-20-205(1)
as a discretionary function and section 29-20-205(4), which addresses failures to make inspections or
negligent or inadequate inspections. We believe the most applicable is Tennessee Code Annotated section
29-20-205(3), and is dispositive of this appeal; therefore, it is not necessary that we address the other
provisions.
2
In their brief, Plaintiffs raise the issue of the special duty doctrine, however, as this issue was raised
for the first time on appeal, we shall not address it. See Hill v. Moncier, 122 S.W.3d 797, 792 (Tenn. Ct. App.
2003).
3
Plaintiffs also contend that the City committed fraud, deception, conspiracy, discrimination,
malicious harassment, coercion, and made false statements. For these claims, the City also retains immunity.
Tenn. Code Ann. § 29-20-205(2) specifically states that immunity is retained for claims arising from “false
imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass,
abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish,
invasion of right of privacy, or civil rights.”
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I N C ONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the plaintiffs.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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