Brady L. Daniels v. Vince Trotter ( 2022 )

07/20/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 1, 2022
BRADY L. DANIELS ET AL. v. VINCE TROTTER
Appeal from the Chancery Court for Hamilton County
No. 19-0040 Jeffrey M. Atherton, Chancellor
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No. E2020-01452-COA-R3-CV
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This appeal involves the mortgagors’ petition to set aside the non-judicial foreclosure of a
piece of real property, alleging that the mortgagors and owner of the property were not
given proper notice of the non-judicial foreclosure sale. The mortgagee and the beneficiary
of the deed of trust concerning the property at issue is the City of Chattanooga. The
property was sold to Vince Trotter in a foreclosure auction. In a court order, which was
certified as final pursuant to Tenn. R. Civ. P. 54.02, the trial court granted summary
judgment in favor of Mr. Trotter, determining that Tenn. Code Ann. § 35-5-106 prevented
the foreclosure sale from being considered void or voidable due to lack of notice and that
the mortgagors had a constitutionally adequate remedy of monetary damages. Despite the
mortgagors arguing that Tenn. Code Ann. § 35-5-106 is unconstitutional as applied to
governmental entities, the Tennessee Attorney General’s Office was not notified of the
constitutional challenge to the statute, as required by Tenn. R. Civ. P. 24.04, Tenn. R. App.
P. 32, and Tenn. Code Ann. § 29-14-107(b). Therefore, we vacate the trial court’s grant of
summary judgment in favor of Mr. Trotter and remand to the trial court to provide the
required notice to the Tennessee Attorney General’s Office.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT
and KENNY W. ARMSTRONG, JJ., joined.
Sharon McMullan Milling, Hixson, Tennessee, for the appellants, Brady L. Daniels and
Sylvia Benford Daniels.
John C. Cavett, Jr., Chattanooga, Tennessee, for the appellee, Vincent Trotter.
OPINION
Background
Since 1971, Sylvia L. Benford Daniels and Marian L. Benford had been the joint
owners of a piece of property located in Chattanooga, Tennessee (“the Property”). In 1996,
Marian Benford, Sylvia L. Benford Daniels, and Brady Daniels executed a deed of trust,
and Ms. Benford made all mortgage payments until her death in 2010. As part of the loan
process, the loan application and the “Loan Master Information” listed the address of
Sylvia L. Benford Daniels and Brady Daniels (collectively, “the Daniels”) as being in
Columbia, Maryland. The record also includes a document entitled, “Chattanooga Home
Improvement Program Deed of Trust and Security Agreement,” which states that the
instrument is a “Construction Mortgage.” The lender and beneficiary of the deed of trust
is listed as “the CITY OF CHATTANOOGA, organized and existing under the Laws of
the State of Tennessee.” The deed of trust reflects that the document was prepared by and
filed for the City of Chattanooga c/o Chattanooga Neighborhood Enterprise, Inc.
Following Ms. Benford’s death, Sylvia Benford Daniels became the sole owner of
the property due to the right of survivorship clause in the original deed. The Daniels were
both co-debtors to the mortgage on the Property. At all times relevant, the Daniels
continued to reside at their address in Columbia, Maryland as listed in the loan application
document. A relative of Ms. Daniels was residing at the Property and had agreed to pay
the mortgage payments. At some point, the family member ceased making the mortgage
payments, and the City of Chattanooga, as “beneficiary under the Deed of Trust and the
true and lawful owner and holder of the [promissory note],” appointed a successor trustee
to conduct the foreclosure process. The Daniels did not receive notice at their Maryland
address of non-payment of the mortgage or of the upcoming foreclosure sale. Instead, the
foreclosure notices addressed to the Daniels were sent to the Property address in
Chattanooga, Tennessee. The record reflects that the family member residing at the
Property at the time of the foreclosure was also copied on the notice of foreclosure. The
public auction for the Property was advertised in the Chattanooga Times Free Press, and
the Property was purchased at the foreclosure sale by the respondent, Vince Trotter. Title
was transferred to Mr. Trotter by successor trustee’s deed in November 2018. The Daniels
did not learn of the foreclosure until after title of the Property had been transferred to Mr.
Trotter.
In January 2019, the Daniels filed a petition to set aside the successor trustee’s deed
and to declare Sylvia Daniels the owner of the real property, alleging that they did not
receive notice of the foreclosure sale by the City of Chattanooga and Chattanooga
Neighborhood Enterprise, Inc. Alternatively, the Daniels requested a judgment for fair
market value of the Property, as well as pre-judgment interest and post-judgment interest.
The Daniels filed their action in the Hamilton County Chancery Court (the “Trial Court”).
In their petition, the Daniels also named Vince Trotter as a respondent and alleged that he
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was not a bona fide purchaser for value and had not purchased the property in good faith.1
Mr. Trotter filed an answer to the petition and included a counter-complaint against the
Daniels, alleging that the Daniels “and/or their relatives” have continued to reside on the
Property since the sale to Mr. Trotter and requesting damages and possession of the
Property. Mr. Trotter also included a cross-complaint against the respondents, the City of
Chattanooga and Chattanooga Neighborhood Enterprise, Inc. In October 2019, the Daniels
filed a motion to amend their petition to include the allegation that Tenn. Code Ann. § 35-
5-101, et seq., as applied in the present case violates the Daniels’ constitutional rights. The
Trial Court subsequently granted the motion to amend upon agreement of the parties, and
the Daniels filed their amended petition alleging the unconstitutionality of Tenn. Code
Ann. § 35-5-106.
Mr. Trotter filed a motion for summary judgment, requesting that all claims against
him be dismissed. In his memorandum of law, Mr. Trotter argued that the Daniels had
not alleged fraud, had not sought monetary damages from Mr. Trotter, and the foreclosure
sale was not void or voidable pursuant to Tennessee law. According to Mr. Trotter, the
motion for summary judgment “seeks a dismissal of the Daniels’ efforts to set aside the
sale only.” Mr. Trotter cited to Tenn. Code Ann. § 35-5-106 and argued that the “mere
failure to identify or provide notice to an interested party does not provide sufficient
grounds to set aside a foreclosure sale.”
The Daniels responded to Mr. Trotter’s motion and opposed the dismissal, arguing
that the foreclosure of the Property was a governmental “taking” without due process of
law, that Tenn. Code Ann. § 35-5-106 is unconstitutional as applied to the taking of
property by the government, and that the City of Chattanooga and Chattanooga
Neighborhood Enterprise, Inc. failed to comply with the notice provisions of Tenn. Code
Ann. § 35-5-101(e) by sending notice to the Daniels’ last known address. According to
the Daniels, this foreclosure by the City of Chattanooga was “a state action rather than an
action by a private entity” and was, therefore, a governmental taking. The Daniels argued
that because this is a governmental taking, Tenn. Code Ann. § 35-5-106 is unconstitutional
in this case. The record does not reflect that the Daniels or anyone else provided notice to
the Attorney General’s Office regarding their allegations that Tenn. Code Ann. § 35-5-106is unconstitutional as applied.
The Trial Court conducted a hearing on the summary judgment motion. According
to the Trial Court’s order, Mr. Trotter conceded for purposes of the summary judgment
motion that the City of Chattanooga and Chattanooga Neighborhood Enterprise, Inc. did
not send proper notice to the Daniels of the foreclosure action, as required by Tenn. Code
1
This appeal involves only the action against the respondent, Vince Trotter. At the time this appeal was
initiated, Plaintiff’s action against the City of Chattanooga and Chattanooga Neighborhood Enterprise, Inc.
was still pending in the Trial Court. The judgment dismissing the claims against Mr. Trotter was certified
as a final judgment pursuant to Tenn. R. Civ. P. 54.02.
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Ann. § 35-5-101. The Trial Court entered an order in July 2020, granting Mr. Trotter’s
motion for summary judgment upon its determination that the foreclosure sale was not void
or voidable pursuant to Tenn. Code Ann. § 35-5-106 and that the chancery court did not
have jurisdiction to set aside the foreclosure sale. Regarding the Daniels’ constitutional
claims, the Trial Court distinguished the Daniels’ reliance on a Court of Appeals opinion
in Owens v. Hamilton Cty., No. E2017-02395-COA-R3-CV, 2018 WL 6253818, at *5
(Tenn. Ct. App. Nov. 28, 2018), because Owens involved the collection of municipal taxes
and lack of service of process. The Trial Court explained that “[t]he collection of municipal
taxes is a governmental function and differs from a governmental entity pursuing a private
remedy for a breach o[f] contract.” Therefore, the Trial Court found that Tennessee
statutory law related to non-judicial foreclosures provides adequate due process protections
and a “constitutionally adequate remedy for a violation – a claim for monetary damages.”
Mr. Trotter filed a motion requesting that the Trial Court declare the July 2020 order to be
a final order, pursuant to Tenn. R. Civ. P. 54.02, which the Trial Court granted.
The Daniels timely appealed to this Court. Following entry of the Trial Court’s
order, the Daniels’ allegations against the City of Chattanooga and Chattanooga
Neighborhood Enterprise, Inc. remained pending, as well as the cross-complaint and
counter-complaint filed by Mr. Trotter. In September 2021, this Court entered an order,
directing the parties to brief the issue of whether this Court had jurisdiction to consider this
appeal due to Mr. Trotter’s pending cross-complaint and counter-complaint. Subsequently,
Mr. Trotter voluntarily dismissed his cross-complaint and counter-complaint, and the Trial
Court entered an order declaring that the Trial Court’s July 2020 order was a final judgment
pursuant to Tenn. R. Civ. P. 54.02. This Court thereafter entered an order relieving the
parties of the obligation of briefing the jurisdictional issue.
Discussion
Although not stated exactly as such, the Daniels raise the following issues for our
review on appeal: (1) whether this Court has jurisdiction to consider this appeal and (2)
whether the lack of adequate notice of a foreclosure sale when the mortgagee is a
governmental entity is a violation of due process and gives a trial court the authority to act
beyond the scope of Tenn. Code Ann. § 35-5-106.
Although the parties were relieved of their obligation to address the issue of this
Court’s subject matter jurisdiction, the Daniels have included jurisdiction as their first issue
on appeal. This Court does not have subject matter jurisdiction to adjudicate an appeal if
there is no final judgment. See Tenn. R. App. P. 3(a). A final judgment is “one that resolves
all the issues in the case, ‘leaving nothing else for the trial court to do.’” In re Estate of
Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (quoting State ex rel. McAllister v. Goode,
968 S.W.2d 834, 840 (Tenn. Ct. App. 1997)). “[A]ny trial court order that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties is not final or
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appealable as of right.” State ex rel. Garrison v. Scobey, No. W2007-02367-COA-R3-JV,
2008 WL 4648359, at *5 (Tenn. Ct. App. Oct. 22, 2008), no appl. perm. appeal filed.
Even if an order adjudicates fewer than all claims for relief, a trial court may certify
an order as final, pursuant to Tenn. R. Civ. P. 54.02, “only upon an express determination
that there is no just reason for delay and upon an express direction for the entry of
judgment.” However, this Court has held that Tenn. R. Civ. P. 54.02 is applicable in
limited circumstances and “does not apply to all orders that are interlocutory in nature.” E.
Solutions for Buildings, LLC v. Knestrick Contractor, Inc., No. M2017-00732-COA-R3-
CV, 2018 WL 1831116, at *3 (Tenn. Ct. App. April 17, 2018), perm. app. denied (Tenn.
Aug. 9, 2018) (quoting Konvalinka v. Am. Int’l Grp., Inc., No. E2011-00896-COA-R3-CV,
2012 WL 1080820, at *3 (Tenn. Ct. App. Mar. 30, 2012)). For a trial court to properly
certify an order as final pursuant to Tenn. R. Civ. P. 54.02, the order should dispose of, at
least, an entire claim or an entire party. E. Solutions for Buildings, LLC, 2018 WL
1831116, at *3.
When this appeal began, Mr. Trotter’s cross-complaint and counter-complaint were
pending before the Trial Court. However, Mr. Trotter later voluntarily dismissed those
claims, and the Trial Court certified its July 2020 order as a final order and found that there
was no just reason for delaying entry of a final order. Because all of the claims involving
Mr. Trotter have been resolved in the Trial Court, we find that the Trial Court’s order was
properly certified as final, pursuant to Tenn. R. Civ. P. 54.02, and that this Court has subject
matter jurisdiction over the appeal.
We next address the Daniels’ issue regarding whether the Trial Court erred by
relying on Tenn. Code Ann. § 35-5-106 and granting summary judgment in favor of Mr.
Trotter. Concerning summary judgment, our Supreme Court has instructed:
Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Tenn.
R. Civ. P. 56.04. We review a trial court’s ruling on a motion for summary
judgment de novo, without a presumption of correctness. Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare–
Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a
fresh determination of whether the requirements of Rule 56 of the Tennessee
Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d
193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d
453, 471 (Tenn. 2012)).
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[I]n Tennessee, as in the federal system, when the moving party does not bear
the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s
evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving
party to support its motion with “a separate concise statement of material
facts as to which the moving party contends there is no genuine issue for
trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a separate,
numbered paragraph and supported by a specific citation to the record.” Id.When such a motion is made, any party opposing summary judgment must
file a response to each fact set forth by the movant in the manner provided in
Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
[and] . . . supported as provided in [Tennessee Rule 56],” to survive summary
judgment, the nonmoving party “may not rest upon the mere allegations or
denials of [its] pleading,” but must respond, and by affidavits or one of the
other means provided in Tennessee Rule 56, “set forth specific facts” at the
summary judgment stage “showing that there is a genuine issue for trial.”
Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The
nonmoving party must demonstrate the existence of specific facts in the
record which could lead a rational trier of fact to find in favor of the
nonmoving party. If a summary judgment motion is filed before adequate
time for discovery has been provided, the nonmoving party may seek a
continuance to engage in additional discovery as provided in Tennessee Rule
56.07. However, after adequate time for discovery has been provided,
summary judgment should be granted if the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the existence of a
genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The
focus is on the evidence the nonmoving party comes forward with at the
summary judgment stage, not on hypothetical evidence that theoretically
could be adduced, despite the passage of discovery deadlines, at a future trial.
Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (emphasis in original).
Tennessee statutory law regulates non-judicial foreclosures. The Trial Court relied
on Tenn. Code Ann. § 35-5-106 in granting summary judgment in favor of Mr. Trotter.
Tenn. Code Ann. § 35-5-101(e) requires that in any sale of real property to foreclose a deed
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of trust, mortgage, or other lien, the trustee shall send notice to the debtor and any co-
debtors. Notice to a co-debtor shall be sent to his or her last known mailing address or any
other address the co-debtor has designated for the specific purpose of receiving notice. See
Tenn. Code Ann. § 35-5-101(e)(2). Additionally, Tenn. Code Ann. § 35-5-106 provides
that “[s]hould the officer, or other person making the sale, proceed to sell without pursuing
the provisions of this chapter, the sale shall not, on that account, be either void or voidable.”
Furthermore, Tenn. Code Ann. § 35-5-107 provides that the officer or other individual
making the sale who fails to comply with the requirements in this chapter of conducting a
private foreclosure sale is guilty of a class C misdemeanor and is liable for all damages
incurred by the party injured due to his or her noncompliance.
As this Court has previously held regarding Tenn. Code Ann. § 35-5-106, it is clear
that in enacting this statute, the General Assembly intended to eliminate the uncertainty
with land titles resulting from foreclosure sales. See McSwain v. Am. Gen. Fin., Inc., No.
02A01-9309-CH-00215, 1994 WL 398819, at *2 (Tenn. Ct. App. July 22, 1994). As the
Court stated in McSwain, in pertinent part:
T.C.A. § 35-5-106 clearly and unequivocally provides that the failure to
pursue the provisions of “this chapter” shall not render the sale void or
voidable. It is apparent that the legislature did not want uncertainty
concerning land titles to prevail. This is made even more clear by the
provisions of T.C.A. § 35-5-107, which specifically provide relief for anyone
affected by noncompliance with the foreclosure statutes.
Id. Our Supreme Court has held in Doty v. Fed. Land Bank of Louisville, 89 S.W.2d 337,
339 (Tenn. 1936), that with Tenn. Code Ann. § 35-5-106, a court “would not be authorized
to set aside” a foreclosure sale not complying with the procedures in chapter 5 and that
compensatory damages would be the remedy prescribed.
According to the Daniels, however, the foreclosure by the City of Chattanooga was
a “taking” by a governmental entity without due process, and the Trial Court should have
been permitted to act beyond the scope of Tenn. Code Ann. § 35-5-106 to consider the
constitutional implications. The Due Process clause of the Fourteenth Amendment of the
United States Constitution prohibits the States from depriving any person of life, liberty,
or property without providing the person with due process of law. Similarly, the Tennessee
Constitution, Article I, section 8 provides: “That no man shall be taken or imprisoned, or
disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner
destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
It is well-settled that the due process clause of the Fourteenth Amendment applies
only to state action, not private conduct. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-
57 (1978). Tennessee’s “law of the land” clause found at Article I, section 8 of the
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Tennessee Constitution provides the same protection as the due process clause of the
federal constitution, and a violation of Article I, section 8 also requires state action.
CitiMortgage, Inc. v. Drake, 410 S.W.3d 797, 806 (Tenn. Ct. App. 2013); see also Bryant
v. Tenet, Inc., 969 S.W.2d 923, 925 (Tenn. Ct. App. 1997) (“Since ‘state action’ is
necessary to invoke the protection of the Fourteenth Amendment, we conclude that the
same is true with respect to Article I, § 8.” (internal citations omitted)).
Typically, private non-judicial foreclosures are not considered state action for
purposes of due process. See CitiMortgage, Inc. v. Drake, 410 S.W.3d at 805-06. Non-
judicial foreclosures generally involve “a contractually-determined act involving private
parties, not the state.” See Drake v. Citimortgage, Inc., No. 1:10-CV-305, 2011 WL
1396774, at *2 (E.D. Tenn. Apr. 13, 2011). This Court has held that even considering
Tennessee’s statutory authority enacted to regulate non-judicial foreclosures, see Tenn.
Code Ann. § 35-5-101 et seq., a “private non-judicial foreclosure by auction does not
involve state action.” CitiMortgage, Inc. v. Drake, 410 S.W.3d at 805-06. We agree with
this Court’s holding in CitiMortgage, Inc. v. Drake that the General Assembly’s enactment
of statutes to govern non-judicial foreclosure sales is not, in itself, considered state action.
However, this Court’s opinion in CitiMortgage, Inc. v. Drake involved private parties to a
foreclosure and not a governmental entity.
In the case at bar, there is no question whether a governmental entity was involved
in the foreclosure of the Property; the City of Chattanooga is listed as the beneficiary under
the deed of trust and the owner of the promissory note. Upon our consideration of whether
state action exists when a governmental entity acts as a mortgagee, it is an open question
in Tennessee whether a non-judicial foreclosure by a governmental entity may be subject
to due process protections afforded by the Fourteenth Amendment of the United States
Constitution and Article I, Section 8 of the Tennessee Constitution. See Sprauve v. W.
Indian Co. Ltd., 799 F.3d 226, 229-30 (3d Cir. 2015) (stating that the court could avoid a
determination of whether a private party’s conduct constituted state action “when the actor
is the government” and held that the governmental entity was subject to claims under the
United States Constitution (citing Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 378
(1995))); Lehner v. United States, 685 F.2d 1187, 1190 (9th Cir. 1982) (internal footnote
and citations omitted) (“When the Government acts as mortgagee, clearly the mortgagor
has a right to notice and a hearing prior to the [foreclosure] sale.”); Anderson v. Alaska
Hous. Fin. Corp., 462 P.3d 19, 27 (Alaska 2020) (“As a government entity, AHFC [Alaska
Housing Finance Corporation] must satisfy restrictions imposed on state action by the
Alaska Constitution, including its Due Process Clause.”); but see AgriBank FCB v. Cross
Timbers Ranch, Inc., 919 S.W.2d 263, 268 (Mo. Ct. App. 1996) (“Even a wholly-owned
federal entity can enforce a valid contractual provision for foreclosure under a power of
sale as authorized by Missouri statutes without running afoul of the constraints of the Fifth
Amendment.”).
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Although not using the words “state action,” the Trial Court appeared to at least
minimally consider whether the actions of the City of Chattanooga and Chattanooga
Neighborhood Enterprise, Inc. were state action when it distinguished this Court’s case of
Owens v. Hamilton Cty., No. E2017-02395-COA-R3-CV, 2018 WL 6253818, at *5 (Tenn.
Ct. App. Nov. 28, 2018), and explained that “[t]he collection of municipal taxes is a
governmental function and differs from a governmental entity pursuing a private remedy
for a breach o[f] contract.” Additionally, the Trial Court went on to determine that
Tennessee statutory law related to non-judicial foreclosures provides adequate due process
protections for mortgagors and a “constitutionally adequate remedy for a violation – a
claim for monetary damages.”
However, upon our review of the record on appeal, we see no evidence that the
Tennessee Attorney General’s Office was notified during the trial court proceedings of the
Daniels’ claim that Tenn. Code Ann. § 35-5-106 is unconstitutional as applied to
mortgagees that are governmental entities. There is no evidence that the Daniels have
provided notice of their constitutional challenge on appeal. Tenn. Code Ann. § 29-14-
107(b) requires that the Tennessee Attorney General and Reporter be served with a copy
of the proceeding and given an opportunity to be heard if a statute of statewide effect is
alleged to be unconstitutional. Tenn. R. Civ. P. 24.04 further provides that “[w]hen the
validity of a statute of this state . . . is drawn in question in any action to which the State or
an officer or agency is not a party, the court shall require that notice be given the Attorney
General, specifying the pertinent statute . . . .” Additionally, Tenn. R. App. P. 32
necessitates that when the validity or constitutionality of a Tennessee statute is at issue in
an appeal to which the state, a state officer, or a state agency is not a party, the party raising
the issue concerning the validity or constitutionality of the statute shall serve a copy of his
or her appellate brief on the Tennessee Attorney General. While the City of Chattanooga
is a party in this action, the necessity of notifying the Attorney General under the relevant
rules of court and statute is clear as the ultimate resolution of this action will decide the
constitutionality of Tenn. Code Ann. § 35-5-106 specifically when a governmental entity
is the mortgagee.
The Daniels have maintained that Tenn. Code Ann. § 35-5-106 is unconstitutional
as applied since their amended petition and response to Mr. Trotter’s summary judgment
motion in the trial court proceedings. The Trial Court was obligated under Tenn. R. Civ.
P. 24.04 to require that notice be provided to the Tennessee Attorney General of the
constitutional challenge to a state statute. As this Court has stated, Rule 24.04 “makes it
clear that the trial court sits as gatekeeper to inquire whether notice has been provided to
the Attorney General by the challenger and to suspend proceeding on the constitutional
challenge until such notice has been provided and a response from the Attorney General
received.” In re Adoption of E.N.R., 42 S.W.3d 26, 33 (Tenn. 2001). We note that the
record in this appeal is lacking any evidence that such notice was provided.
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The requirement that notice be provided to the Tennessee Attorney General is
twofold. Waters v. Farr, 291 S.W.3d 873, 918-19 (Tenn. 2009) (J. Koch, concurring in
part). Providing notice to the Attorney General of a constitutional challenge to a state
statute “enables the Office of the Attorney General to discharge its responsibility to defend
the constitutionality of state statutes” and ensures that the contested statute is vigorously
defended. Id. We find nothing in the record that shows that any party provided notice to
the Tennessee Attorney General of the constitutional challenge either during the trial court
proceedings or on appeal. “Before we can consider an attack on the constitutionality of a
statute, the record must reflect compliance with Tennessee Rule of Civil Procedure 24.04,
Tennessee Rule of Appellate Procedure 32, and Tennessee Code Annotated section 29-14-
107(b), which all require that notice be provided to the Attorney General.” Tennison Bros.,
Inc. v. Thomas, 556 S.W.3d 697, 731 (Tenn. Ct. App. 2017); see also In re Cannon H., No.
W2015-01947-COA-R3-JV, 2016 WL 5819218, at *7 (Tenn. Ct. App. Oct. 5, 2016), perm.
app. denied (Tenn. Feb. 21, 2017). Due to lack of evidence in the record that the Tennessee
Attorney General had been notified of the Daniels’ constitutional challenge to Tenn. Code
Ann. § 35-5-106 when involving a governmental entity, we vacate the Trial Court’s order
granting summary judgment in favor of Mr. Trotter and remand for notice to be provided
to the Tennessee Attorney General of the constitutional challenge to Tenn. Code Ann. §
35-5-106 as applied to governmental entities acting as mortgagees in a non-judicial
foreclosure action. Compliance with Tennessee Rule of Civil Procedure 24.04, Tennessee
Rule of Appellate Procedure 32, and Tennessee Code Annotated Section 29-14-107(b)
requires this result even though the Trial Court in this particular case denied the
constitutional challenge, as the result in the next trial court to face a constitutional challenge
to a statute could go the other way. Upon remand following notice to the Tennessee
Attorney General’s Office, the Trial Court shall consider whether state action is involved
in a non-judicial foreclosure where a governmental entity is the mortgagee and, if yes,
whether Tenn. Code Ann. § 35-5-106 is unconstitutional as applied when the government
is the mortgagee.
Conclusion
The judgment of the Trial Court granting summary judgment in favor of Mr. Trotter
is vacated and this cause is remanded to the Trial Court for further proceedings consistent
with this Opinion. The costs on appeal are assessed one-half against the appellants, Brady
L. Daniels and Sylvia Benford Daniels, and their surety, if any, and one-half against the
appellee, Vince Trotter.
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D. MICHAEL SWINEY, CHIEF JUDGE
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