State ex rel. Department of Transportation v. William H. Thomas, Jr. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 13, 2014 Session
STATE EX REL. DEPARTMENT OF TRANSPORTATION v. WILLIAM
H. THOMAS, JR.
Appeal from the Chancery Court for Shelby County
No. CH0704541 Walter L. Evans, Chancellor
No. W2013-02082-COA-R3-CV - Filed December 11, 2014
This is the second appeal of this case involving the Appellee’s construction of a billboard
without the required state permit. In the first appeal, this Court held that the trial court did
not have subject-matter jurisdiction to adjudicate any of Appellee’s purported defenses or
counterclaims raised in response to the State of Tennessee’s petition for injunctive relief.
Accordingly, we held that the trial court’s order was “void and of no effect.” Upon remand,
the State sought restitution for amounts paid to Appellee pursuant to the void order. In
contravention of the law of the case, the trial court awarded Appellant only part of its
restitution, and ruled in Appellee’s favor on his First Amendment defense to the State’s
petition. Accordingly, we reverse the trial court’s order and remand the case with mandated
instructions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is
Reversed and Remanded
K ENNY A RMSTRONG, J. delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
P.J., W.S., and B RANDON O. G IBSON, J., joined.
George Griffin Boyte, Jr., Jackson, Tennessee, for the appellant, State of Tennessee ex
rel. Department of Transportation.
William H. Thomas, Jr., Memphis, Tennessee appellee, Pro Se.
1
OPINION
I. Background
This is the second appeal of this case, which began on March 2, 2007, when the State of
Tennessee ex rel. Department of Transportation (“TDOT,” “State,” or “Appellant”) sought
injunctive relief against Appellee William H. Thomas, Jr. to enjoin him from constructing
a billboard on property identified as the Crossroads Ford site. State ex rel. Com'r of Dept.
of Transp. v. Thomas, 336 S.W.3d 588 (Tenn. Ct. App. 2010) (“Thomas I”).1 Mr. Thomas’
permit application for the Crossroads Ford site billboard (number 5848) was denied because
his billboard site was less than 1,000 feet from an existing permitted billboard owned by a
competitor. Thomas I, 336 S.W.3d at 592 (citing TDOT Rules, Chapter 1680-02-03-
.03(a)(a)(4)). Mr. Thomas filed an administrative appeal from the denial of his permit for
the Crossroads Ford site, but proceeded to engage in “ongoing construction of the billboard
structure at the. . . site.” Id. at 593. TDOT alleged that because Mr. Thomas did not have
a permit for the Crossroads Ford site billboard, the structure violated the Billboard
Regulation and Control Act, Tennessee Code Annotated Section 54-21-104.” Id. at 593.
Accordingly, TDOT sought an injunction to stop Mr. Thomas from going forward with the
Crossroads Ford billboard, and to have him remove any portion of the billboard that he had
constructed on the site. In response to TDOT’s request for injunction, Mr. Thomas filed
several counterclaims, asserting, inter alia, that TDOT had “adopted a policy of selective
enforcement and hostile and discriminatory action against Thomas. . . .” Id. In his
counterclaims, Mr. Thomas further alleged that TDOT had “refused his request for an
administrative hearing . . . [in] violat[ion] of his right to due process and equal protection.”
Id. at 594. In response, TDOT argued that the trial court did not have subject-matter
jurisdiction over Mr. Thomas’ counterclaims, and that Mr. Thomas’ claims against TDOT
could be asserted only in Davidson County. Id. The trial court ultimately determined that
it had jurisdiction over Mr. Thomas’ counterclaims. Having found jurisdiction, the trial court
proceeded to grant Mr. Thomas “expansive injunctive relief” to curtail TDOT from acting
“any way ‘except equitably and equally,’ toward Thomas. . .” Id. at 595. The trial court did
not expressly address TDOT’s petition for injunctive relief. Id. Nonetheless,
“[d]evelopments in Mr. Thomas’ administrative proceedings on his billboard permit
applications soon resulted in further escalation of the Shelby County litigation.” Id.
On June 6, 2007, the TDOT Commissioner issued an order in the pending administrative
contested case regarding the Crossroads Ford site. The Commissioner’s final order affirmed
1
The original appeal in Thomas I involved several billboard sites. However, the instant
appeal addresses only the Crossroads Ford site billboard.
2
the order of the Administrative Law Judge, which held that Mr. Thomas did not qualify for
any exceptions to the proximity rule and, therefore, was not entitled to a billboard permit for
the Crossroads Ford site. Thomas I, 336 S.W.3d at 596. Following this adverse ruling, Mr.
Thomas filed several motions and petitions in the Shelby County trial court. Specifically, he
alleged that certain TDOT employees, who were allegedly hostile to Mr. Thomas, had
participated in the TDOT Commissioner’s hearings, which had resulted in the adverse ruling
on Mr. Thomas’ billboard sites. Id. at 596. Accordingly, Mr. Thomas asked the trial court
for injunctive relief to enjoin these TDOT employees from participating in any TDOT matter
involving Mr. Thomas. Id. The trial court held a hearing on Mr. Thomas’ request for
injunctive relief on July 6, 2007. Id. at 597. Following this hearing, the trial court granted
some of Mr. Thomas’ requests for relief, including staying the Commissioner’s June 6, 2007
final order, and ordering TDOT to comply with Mr. Thomas’ discovery requests. Id. The
court then scheduled a show cause hearing for August 7, 2007, requiring the two TDOT
employees, who were allegedly hostile to Mr. Thomas, to appear and show cause regarding
their involvement in the TDOT Commissioner’s June 6, 2007 orders. Id.
At the beginning of the August 7, 2007 show cause hearing, Mr. Thomas announced that “he
intended to present proof concerning a wide range of grievances against TDOT, dating back
to 2005.” Thomas I, 336 S.W.3d at 597. Over TDOT’s objection, the trial court allowed
Mr. Thomas to present witnesses and other proof “to establish the basis for [his] contention
of bias and prejudice, [and] partiality on the part of these TDOT employees.” Id. From this
point, “the show cause hearing grew into a proceeding that spanned some ten days. . . [and]
involved approximately a dozen witnesses. . . and approximately seventy-six exhibits.” Id.
Meanwhile, in September 2007, during the course of the testimony in the show cause
hearing, Mr. Thomas received notice from TDOT of administrative proceedings in five
contested matters related to his permit applications for billboards at various sites, including
the Crossroads Ford site. After the conclusion of testimony in the show cause hearing, but
before the trial court entered an order, Mr. Thomas filed a motion asking the trial court to
issue a stay in all five of TDOT’s administrative proceedings. Id. at 598. After hearing Mr.
Thomas’ motion to stay, on October 24, 2007, the trial court entered an order, in which the
court granted Mr. Thomas’ motion and ordered stays in all five of Mr. Thomas’ contested
cases. Id.
On February 12, 2008, the trial court entered a 110-page order on Mr. Thomas’ various
requests for relief. In its order, the court addressed the issue of jurisdiction. “The trial court
recognized that the UAPA, specifically Tennessee Code Annotated §4-5-322, provided that
‘Judicial Review of an Administrative Body’s decision should be instituted in the Chancery
Court of Davidson County.’” Thomas I, 336 S.W.3d at 598. However, the court
3
noted that Tennessee Code Annotated §20-4-107, related to
venue, provides that actions involving “real property in which
the State of Tennessee or any agency thereof, is a party, may be
properly instituted in any county in which such property is
located.” It also cited caselaw stating that “[a] plaintiff, by
filing suit, waives any right to dispute venue.” . . . Finally, the
trial court determined that Thomas’ claims were compulsory
counterclaims pursuant to Tennessee Rule of Civil Procedure
13.01, because they arose out of the same transaction or
occurrence as the State’s original petition for injunctive relief.
...
Id. at 598-99. In light of these findings, the trial court found that “as a matter of policy, Mr.
Thomas’ counterclaim should be heard in this [Shelby County] Court to promote judicial
economy.” Id. at 599. Accordingly, the trial court rejected TDOT’s argument that it did not
have subject-matter jurisdiction over Mr. Thomas’ counterclaims.
By order of March 19, 2008, the trial court ordered that Mr. Thomas’ application on the
Crossroads Ford site permit would be remanded to the TDOT Commissioner for
“reconsideration within the trial court’s limits.” Thomas I, 336 S.W.3d at 600. The trial
court awarded Mr. Thomas $10,000 in attorney’s fees as appropriate damages and sanctions
against TDOT for its “failure to comply with the orders of the trial court.” Id. On April 17,
2008, TDOT filed its appeal in Thomas I. On the same day, Mr. Thomas filed a series of
post-judgment motions in the trial court. Over TDOT’s objection, the trial court heard all
of Mr. Thomas’ post-judgment motions. Id. On September 23, 2008, the trial court entered
an order denying Mr. Thomas post-judgment relief; however, it ordered TDOT to pay Mr.
Thomas $16,135.63 in discretionary costs. Id. TDOT filed a supplemental notice of appeal
from the September 23, 2008 order. Id.
In Thomas I, we defined the determinative issue to be “whether the trial court had subject-
matter jurisdiction to adjudicate the claims for relief asserted in Thomas’ counterclaim and
Thomas’ subsequent requests that arose from the counterclaim.” Thomas I, 336 S.W.3d at
601. On appeal in Thomas I, Mr. Thomas argued that the trial court had correctly found that
Tennessee Code Annotated Section 20-4-107,2 as opposed to Tennessee Code Annotated
2
Tennessee Code Annotated Section 20-4-107 states:
Notwithstanding any other law or rule of procedure to the contrary,
any action the subject matter of which involves real property in which
this state, or any agency of this state, is a party, may be properly
instituted in any county in which the property is located.
4
Section 54-21-105(d),3 was applicable to his case because the case involved “real property.”
Id. at 601-602. Specifically, Mr. Thomas argued that the “resolution of his claims and
defenses against TDOT determines whether Thomas can use his Shelby County property in
a way that is economically beneficial. In this way, he argues, they ‘involve[] real property’
and under Section 20-4-107, may be asserted against TDOT in Shelby County.” Id. at 603.
In Thomas I, we specifically rejected Mr. Thomas’ argument, finding that “[a]ny
involvement of real property in Thomas’ claims against TDOT is tangential at most; the
thrust of his claims are that TDOT officials acted in an unfair manner toward him with
respect to his applications for billboard permits.” Id. at 604. Accordingly, we held that
“Thomas’ claims against TDOT do not involve real property and Section 20-4-107 does not
apply.” Id. at 605 (citing Barry v. Com’r of Commerce & Ins., No. 01A01-9404-CH-00156,
1994 WL 485588, at *1-*2 (Tenn. Ct. App. Sept. 9, 1994)).
Tennessee Code Annotated Section 54-21-104(a) provides:
(a) Unless otherwise provided in this chapter, no person shall
construct, erect, operate, use, maintain, or cause or permit to be
constructed, erected, operated, used, or maintained, any outdoor
advertising within six hundred sixty feet (660') of the nearest
edge of the right-of-way and visible from the main traveled way
of the interstate or primary highway systems without first
obtaining from the commissioner a permit and tag.
As noted in Thomas I, “in the absence of a State permit and tag, the Act flatly prohibits the
erection or construction of a billboard structure within 660 feet of an interstate highway
right-of-way, ‘unless otherwise provided in this chapter.’” Thomas I, 336 S.W.3d at 607.
In the event of a violation of Section 54-21-104, the next section of the Act provides:
3
Tennessee Code Annotated Section 54-21-105(d) provides, in relevant part, as follows:
(d) Notwithstanding any other law to the contrary, in any case or
controversy arising from any regulatory or enforcement action taken
by the commissioner or department under § 54-21-105 or this chapter,
wherein any cause of action, claim, counterclaim, cross-claim or any
other claim or request for remedy whatsoever is asserted against the
state, the commissioner, the department or any official or employee
thereof, jurisdiction shall be vested exclusively in the chancery court
for Davidson County. . . .
5
(a)(1) Any person, either owner or lessee, of any outdoor
advertising who has failed to act in accordance with § 54-21-104
shall remove the outdoor advertising immediately.
(2) Failure to remove the outdoor advertising shall render the
outdoor advertising a public nuisance and subject to immediate
disposal, removal or destruction.
Tenn. Code Ann. §54-21-105(a). We noted, in Thomas I, that TDOT’s original petition for
injunctive relief against Mr. Thomas “mirror[ed] the provisions of the Act.” Id. at 607.
Specifically, TDOT’s petition alleged that, despite having been denied a permit, Mr. Thomas
was erecting a billboard at the Crossroads Ford site, immediately adjacent to the Interstate
40 right-of-way, in violation of Section 54-21-104. Id. TDOT’s petition asked the trial court
to adjudge the billboard to be a public nuisance under Section 54-21-105 and to require Mr.
Thomas to remove it immediately at his own expense. Id. The petition also asked that any
revenues Mr. Thomas received for the use of the unlawful billboard be placed in a
constructive trust pursuant to Tennessee Code Annotated Section 54-21-105(c)(7).4 In
Thomas I, we further noted that:
The Answer to [TDOT’s] petition filed by Thomas admitted that
he had not obtained a TDOT permit for a billboard at the
Crossroads Ford site and attached a photo of the billboard that
had been partially constructed on that site. Likewise, at the first
evidentiary hearing before the trial court, Thomas admitted that
construction of a billboard without a permit was illegal under
4
Tennessee Code Annotated Section 54-21-105(c)(7) states:
All gross revenues received or payable from the operation of any
outdoor advertising device erected without first obtaining a permit as
required under § 54-21-104 are subject to being forfeited to the state
and placed in the highway fund for the administration of this chapter
or any other purpose authorized under § 54-21-106. For the
enforcement of this subdivision (c)(7), the department may file a
petition in the chancery court for the county in which the unlawful
outdoor advertising device is or was located or in the county where
the person erecting the device resides. In such case, the jurisdiction
of the chancery court shall be limited solely to the authority to issue
appropriate orders for the enforcement of this subdivision (c)(7),
including, without limitation, the authority to establish a constructive
trust for an accounting and receipt of revenues obtained from the
operation of the unlawful outdoor advertising device.
6
State statutes, that he did not have a TDOT permit for a
billboard at the Crossroads Ford site, and that he hired
contractors who in fact had begun construction of the billboard
on the Crossroads Ford site. Nowhere in the blizzard of
pleadings filed by Thomas or in the multiple hearings did
Thomas claim that construction of the billboard at the
Crossroads Ford site fell within the “unless otherwise provided
in this chapter” exception to the Act’s blanket prohibition
against erecting a billboard without a permit.
Thomas I, 336 S.W.3d at 607 (citing Tennessee Code Annotated Sections 54-21-107(a)(1)
and (2), outlining exceptions for “advertising activities conducted on the property on which
they are located,” or “advertising the sale or lease of property on which they are located.”).
Accordingly, we held:
Because the Act flatly prohibits the erection of outdoor
advertising without a State permit, the entirety of Thomas’
defenses and counterclaims are irrelevant to the State’s petition
for injunctive relief. Unless Thomas fits within one of the
exceptions named in the Act, if he does not have a State
billboard permit, he is not allowed to erect a billboard. Period.
Therefore, none of the defenses or counterclaims asserted by
Thomas can be considered as “properly defensive” to the State’s
petition. Thus, this argument in favor of a finding that the trial
court had subject matter jurisdiction over Thomas’ counterclaim
is without merit.
* * *
In summary, we hold that the Shelby County Chancery
Court is without subject matter jurisdiction, i.e., without
authority, to hear the counterclaims and other requests for relief
asserted by Thomas in this case. It necessarily follows, then,
that the judgment of the Shelby County Chancery Court below
is void and of no effect.
Thomas I, 336 S.W.3d at 607-608 (emphasis added). This Court went on to find that,
“[f]rom the context of the proceedings, we find that the trial court implicitly denied the
State’s petition in its entirety.” That being said, we noted that it was unclear from the record
(as it existed at the time of the appeal in Thomas I) “whether Thomas’ construction of the
billboard at the Crossroads Ford site was ever completed, or whether Thomas removed the
7
partial structure that had been erected, or whether the State’s original request for relief has
been otherwise mooted.” Id. at 608-609. Accordingly, we reversed the order of the trial
court “in its entirety,” dismissed Mr. Thomas’ counterclaim, and remanded the case to the
trial court for “reconsideration” of TDOT’s petition in light of our opinion in Thomas I. Id.
at 609.
While the appeal in Thomas I was pending, Mr. Thomas completed construction on his
billboard at the Crossroads Ford site without the required State permit. Despite never
obtaining the required permit and tag for this billboard, the record indicates that, as early as
2009, Mr. Thomas was operating the Crossroad Ford site billboard for advertising in direct
violation of Tennessee Code Annotated Section 54-24-104(a).
In light of the fact that we reversed the previous judgment of the trial court in Thomas I, on
remand, the State sought restitution and repayment of the costs it had been ordered to pay to
Mr. Thomas. Also, on January 24, 2011, TDOT sent a letter notifying Mr. Thomas that the
billboard was being operated in violation of law and demanded its removal under the
authority outlined in Tennessee Code Annotated Section 54-21-104(a). In response, Mr.
Thomas wrote a letter, dated May 11, 2012, to TDOT’s attorney, indicating his intent to
remove paid advertising from the billboard and to display his “First Amendment Rights of
Freedom and Speech” on the billboard “from time to time.”
On March 14, 2011, Mr. Thomas, allegedly ex parte, petitioned the trial court and received
a temporary restraining order enjoining TDOT from taking actions to enforce the Billboard
Act in relation to several of Mr. Thomas’ billboards, including the one at the Crossroads Ford
Site. In response, the State filed an objection and moved to dismiss the temporary
restraining order on grounds that: (a) it was contrary to this Court’s holding in Thomas I that
the Chancery Court lacked subject-matter jurisdiction; (b) Mr. Thomas failed to satisfy the
notice requirement of Tenn. R. Civ. P. 65.03; and (c) the order lacked a specific finding of
irreparable harm or loss. The trial court heard the State’s objection on March 29, 2011. The
court did not enter its order on this hearing until December 1, 2011, at which time it
dismissed the temporary restraining order as to all of Mr. Thomas’ billboards except the one
at the Crossroads Ford Site.
In response to TDOT’s motion for restitution and repayment of the costs it had paid to Mr.
Thomas, on March 29, 2011, the Chancery Court entered an order, compelling Mr. Thomas
to repay the full amount of $10,000.00 in sanctions, but ordering him to pay only half of the
$16,135.00 in discretionary costs. The court held that execution could issue for repayment
if necessary. Mr. Thomas refused to pay. Accordingly, the State requested and received,
from the Clerk and Master, Abstracts of Judgment for execution of the Order of Restitution.
The State recorded these as judgment liens against Mr. Thomas’ properties in Shelby County
8
and Fayette County. In response, Mr. Thomas moved the trial court “to compel the
cancellation of the abstracts of judgment.” The trial court entered an order, finding that the
order of restitution was not a “final order,” and that the Clerk and Master issued the abstracts
of judgment in error. Accordingly, the trial court ordered the State to release its judgment
liens.
On February 24, 2012, TDOT filed a motion for summary judgment, seeking a final
declaratory judgment that Mr. Thomas had completed and operated the subject billboard at
the Crossroads Ford site in contravention of the Billboard Act. The trial court denied
summary judgment upon its finding that a question of fact existed as to whether the subject
billboard was exempt from regulation by TDOT.
A bench trial was held on February 4, 2013. The trial court entered its order on August 2,
2013. In its August 2, 2013 order, the trial court enjoined Mr. Thomas from using the
Crossroads Ford site billboard for commercial advertising unless he first obtains the required
state-issued permit. However, the court’s order went on to hold that Mr. Thomas may use
this billboard for certain non-commercial messages, and that such use: (1) is “exempt from
regulation by [TDOT];” and (2) is “subject to the review of this court.” The court also held
that the billboard “shall not be removed by TDOT without court approval.”
The State filed its notice of appeal on September 3, 2013. By order of March 14, 2014, this
Court held that the order appealed was not final because the trial court had not adjudicated
certain claims, including Mr. Thomas’ request for attorney’s fees. On May 30, 2014, the trial
court entered an order adjudicating all remaining issues. The two orders (August 2, 2013 and
May 30, 2014) now form the trial court’s final ruling that:
1. Any non-commercial messages placed on the subject
billboard are protected by Mr. Thomas’ First Amendment Right
to free speech, and “therefore are exempt from regulation by
[TDOT].”
2. Any non-commercial messages placed on the billboard are
“subject to review by [the trial court] at the request of. . . TDOT
on a case-by-case basis. . .and [the billboard] shall not be
removed by TDOT without court approval.”
3. The trial court also stayed any action to collect the restitution
and repayment from Thomas “until the conclusion of any
appeals.”
9
II. Issues
The State appeals. It raises four issues for review as stated in its brief:
1. Whether the trial court erred for lack of subject-matter
jurisdiction in its final order, ruling that Thomas’ use of the
subject billboard to display certain “non-commercial” messages
is exempt from the authority of the TDOT to enforce the
Billboard Act.
2. Whether the trial court erred for lack of subject-matter
jurisdiction in its final order, ruling that TDOT’s enforcement
actions against Thomas’ display of “non-commercial” messages
are subject to the review of the Shelby County Chancery Court.
3. Whether the chancery court erred by issuing its March 14,
2011 temporary restraining order enjoining TDOT from
enforcing the Billboard Act in regard to Thomas’ billboard,
despite the “law of the case” that the court lacked subject-matter
jurisdiction to review such enforcement actions.
4. Whether the chancery court erred by depriving the State of
full restitution and staying the State’s collection of restitution
and refund from Thomas of sanctions and discretionary costs
that the State had paid Thomas pursuant to a judgment later held
to be void.
III. Standard of Review
As set out in detail above, we have made previous rulings in this case in Thomas I. These
rulings constitute the law of the case. The Tennessee Supreme Court describes the “law of
the case” doctrine as follows:
An appellate court's final decision in a case establishes the “law
of the case” when a case is remanded for further proceedings.
This “law of the case” is binding on the trial court during the
remanded proceedings and is also binding on the appellate
courts should a second appeal be taken after the trial court enters
a judgment in response to the remand order.
Memphis Publ'g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,
10
306 (Tenn.1998). The “law of the case” doctrine is neither a constitutional mandate nor an
inflexible limit on the adjudicatory power of the courts. Instead, it is “a longstanding
discretionary rule of judicial practice,” Memphis Publ'g Co., 975 S.W.2d at 306, reflecting
the commonsense recognition that issues previously litigated and decided by a court of
competent jurisdiction need not be revisited. In re Estate of Boote, 256 S.W.3d 402, 413
(Tenn. Ct. App.2007); Ladd ex rel. Ladd v. Honda Motor Co., 939 S.W.2d 83, 90 (Tenn. Ct.
App. 1996). Adhering to the “law of the case” doctrine promotes finality and efficiency in
litigation, ensures consistent results in the same proceeding, and assures that lower courts
follow the decision of higher courts. State v. Jefferson, 31 S.W.3d 558, 561 (Tenn.2000);
Harrison v. Laursen, 128 S.W.3d 204, 208 (Tenn. Ct. App.2003). Thus, except in certain
limited situations, the trial court cannot revisit an issue decided in a prior appeal in the same
case. Memphis Publ’g Co., 975 S.W.2d at 306. However, the law of the case doctrine does
not necessarily apply when the evidence offered at a trial or hearing following the remand
is substantially different from the evidence in the earlier proceeding. Gray's Disposal Co. v.
Metro. Gov't of Nashville, 318 S.W.3d at 348. The extent to which the law of the case
doctrine precludes re-litigation of an issue decided in a prior appeal is a question of law,
subject to de novo review.
IV. Analysis
Our review of the trial court’s rulings on remand clearly shows that it violated the law of the
case doctrine in at least two ways. First, this Court declared the judgment of the trial court
“void and of no effect.” Thomas I, 336 S.W.3d at 608. The word “void” indicates that the
order appealed in Thomas I was rendered “absolutely null.” Bryan A. Garner, A Dictionary
of Modern Legal Usage 919 (2d ed.1987). Accordingly, on remand, when the trial court
entered judgment for TDOT for only half of the discretionary costs it had paid to Mr. Thomas
pursuant to the void order, the trial court deviated from the law of the case. Rather, the court
should have awarded TDOT the full amount of $10,000 in sanctions, and the full amount of
$16,135.00 in discretionary costs, plus any interest accruing on these amounts. For these
reasons, we reverse the order of the trial court concerning restitution due TDOT, and we
remand for entry of judgment in favor of TDOT in the full amount of $26,135.00 plus any
interest accruing on this amount, for which execution may issue if necessary.
In Thomas I, we noted that “it is unclear from the record whether Thomas’ construction of
a billboard at the Crossroads Ford site was ever completed, or whether Thomas removed the
partial structure that had been erected. . . .” Id. at 608-609. As discussed above, we now
know that Mr. Thomas finished construction on the Crossroads Ford site billboard after this
Court had explicitly held that “[b]ecause the Act flatly prohibits the erection of outdoor
advertising without a State permit.. . . [u]nless Thomas fits within one of the exceptions
11
named in the Act,5 if he does not have a State billboard permit, he is not allowed to erect
a billboard. Period.” Id. (Emphasis added). Accordingly, we held that “the entirety of
Thomas’ defenses and counterclaims are irrelevant to the State’s petition for injunctive relief.
. .[and] none of the defenses or counterclaims asserted by Thomas can be considered as
‘properly defensive’ to the State’s petition.” Id. This was the law of the case on remand.
Therefore, in addition to erroneously granting the State only partial restitution on the void
judgment, the trial court also deviated from the law of the case in considering Mr. Thomas’
somewhat novel First Amendment defense to the use of the disputed billboard. The trial
court did not have jurisdiction to adjudicate this defense under our holding in Thomas I.
Regardless of what message is displayed on the Crossroads Ford site billboard, the fact
remains that, in the absence of the required permit and tag, Mr. Thomas is “not allowed to
erect a billboard. Period.” Id. In light of our holding in Thomas I, once it became clear that
Mr. Thomas had erected the Crossroads Ford site billboard, the trial court should have
granted TDOT’s original petition for injunctive relief, and should have declared the subject
billboard a public nuisance pursuant to Tennessee Code Annotated Section 54-21-104.
Because the trial court deviated from the law of the case as set out in Thomas I, we reverse
the trial court’s order and remand the case to the trial court. Our remand is limited solely
5
The very limited exceptions, as set out at Tennessee Code Annotated Section 54-21-107,
are:
(a) The following outdoor advertising are exempt from § 54-21-104:
(1) Those advertising activities conducted on the property on which
they are located;
(2) Those advertising the sale or lease of property on which they are
located; and
(3) Those that are official as established under authority of any statute
or regulation promulgated with respect to the outdoor advertising.
(b) Any advertising structure existing along the parkway system by
and for the sole benefit of an educational, religious or charitable
organization shall be exempt from the payment of fees for permits or
tags under § 54-21-104.
As we noted in Thomas I, the Crossroads Ford site billboard does not satisfy any of the foregoing
exceptions, nor has Mr. Thomas argued any of these exceptions during these proceedings.
Accordingly, Tennessee Code Annotated Section 54-21-107 is not applicable, and any argument
concerning these limited exceptions is considered waived.
12
to the following mandates:
1. The trial court shall enter judgment in favor of the State, and
against Mr. Thomas, in the full amount $26,135.00, and allow
the State to collect payment upon the injunction bond for the
temporary restraining order that was wrongfully issued on
March 14, 2011. The trial court shall further allow execution to
issue against Mr. Thomas for these amounts plus any interest
accruing on these amounts.
2. In light of the fact that Mr. Thomas has not obtained a permit
for the Crossroads Ford site billboard, the trial court shall grant
the State’s original petition in full. Specifically, the court shall
declare the Crossroads Ford site billboard a public nuisance
under Tennessee Code Annotated Section 54-21-104(a)(2), and
shall further enjoin Mr. Thomas to completely remove the
offensive billboard at his own expense within 90 days of the
entry of judgment in this appeal. Should Mr. Thomas fail to
remove the billboard within the 90 day time period, the State
may remove the billboard under its statutory authority. If the
State removes the billboard structure, it shall be entitled to, and
the trial court shall render, judgment against Mr. Thomas in the
full amount of the State’s expenses incurred in the removal of
the billboard, including, but not limited to, penalties, fees, and
interest thereon. The trial court shall allow execution to issue if
necessary for the judgment on removal costs.
3. The Crossroads Ford site billboard is unlawful and must be
removed. In light of our holding in Thomas I that the trial court
does not have subject-matter jurisdiction over Mr. Thomas’
defenses, the trial court shall not hear any further claims,
counterclaims, purported defenses, or arguments from Mr.
Thomas supporting the continuing existence or use of the
Crossroads Ford site billboard. If Mr. Thomas has any further
arguments, he may address them solely to the Chancery Court of
Davidson County under Tennessee Code Annotated Section 54-
21-105(d).
The Tennessee Supreme Court has stated that inferior courts must follow the “orders,
decrees, and precedents of higher courts.” Weston v. State, 60 S.W.3d 57, 59 (Tenn.2001)
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(quoting State v. Irick, 906 S.W.2d 440, 443 (Tenn.1995)). “Neither a trial court nor an
intermediate court has the authority to expand the directive or purpose of this Court imposed
upon remand.” Weston, 60 S.W.3d at 59 (citing Cook v. McCullough, 735 S.W .2d 464, 470
(Tenn. Ct. App.1987)). This limitation of authority ensures finality and stability within the
law and judicial proceedings. Irick, 906 S.W.2d at 443 (Tenn.1995) (quoting Barger, 535
S.W.2d at 341 (Tenn.1976)). Thus, “[w]hen a trial court receives a case that has been
remanded, the trial court must strictly comply with the appellate court's mandate, and
typically lacks the power to deviate from the terms of the appellate mandate, absent either
permission from the appellate court or extraordinary circumstances.” Rudd v. Rudd, No.
W2011–01007–COA–R3–CV, 2011 WL 6777030, at *7 (Tenn. Ct. App. Dec. 22, 2011)
(citing Silvey v. Silvey, No. E2003–00586–COA–R3–CV, 2004 WL 508481, at *3 (Tenn. Ct.
App. Mar. 16, 2004)).
For the foregoing reasons, we reverse the order of the trial court. The case is remanded in
accordance with the mandates outlined in this opinion, and for no other reason. Costs of the
appeal are assessed against the Appellee, William H. Thomas, Jr., for which execution may
issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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