Metro. Gov't v. Jones

• Decision Date: 23 April 2021
• Docket Number: No. M2020-00248-COA-R3-CV,M2020-00248-COA-R3-CV
• Court: Tennessee Court of Appeals
• Parties: METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY v. LAYTON JONES

METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY v. LAYTON JONES

No. M2020-00248-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

December 2, 2020 Session

April 23, 2021

Appeal from the Circuit Court for Davidson County

No. 19C462

Kelvin D. Jones, Judge

A local government cited a property owner for operating his property as a short-term rental without a permit. A general sessions court found the property owner violated the short-term rental ordinance and enjoined him from committing further violations. The government later brought two criminal contempt actions against the property owner, claiming that he violated the court's injunction by continuing to run a short-term rental without a permit. The first time, the property owner acknowledged his violations, and the general sessions court entered an agreed order. The second time, the court found the property owner guilty of contempt after a hearing. The property owner appealed that finding to the circuit court. The circuit court found that the property owner was in contempt of the general sessions court's order on eighteen occasions. Finding no error, we affirm.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

William Gary Blackburn and Bryant Beatty Kroll, Nashville, Tennessee, for the appellant, Layton Jones.

Robert E. Cooper, Metropolitan Director of Law; Jeff Campbell, Assistant Metropolitan Attorney; and Quantavius M. Poole, Assistant Metropolitan Attorney, for the appellee, Metropolitan Government of Nashville & Davidson Co.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and Timothy Simonds, Senior Assistant Attorney General for the State of Tennessee.

OPINION

I.

In May 2017, the Metropolitan Government of Nashville and Davidson County cited Layton Jones under Metro's short-term rental property ("STRP") ordinance. Metro claimed that Mr. Jones violated the ordinance by advertising and renting his property for short-term rentals without a permit. The citation listed Metro Code § 17.16.250.E.1.a as the specific code section at issue. For the description of the offense, the citation provided "STRP Permit Required." And, tracking the relevant code language, it stated that "[n]o person . . . shall operate a STRP or advertise a residential property for use as a STRP without the owner of the property first having obtained a STRP permit." The citation compelled Mr. Jones to appear in general sessions court, specifically, the Davidson County Environmental Court, a division of Metro General Sessions Court.

Mr. Jones did not appear for his court date. So a referee of the environmental court entered a default order against Mr. Jones, finding him guilty of violating Metro Code § 17.16.250.E.1.a and fining him $50. The order also permanently enjoined Mr. Jones "from violations of Metropolitan Code of Laws § 17.16.250" at his property. And it made him ineligible for an STRP permit "for three years in accordance with Metropolitan Code of Laws § 17.16.250." Any violation of the order would subject Mr. Jones "to contempt proceedings and possible jail time."

Several months later, Metro filed a motion for contempt against Mr. Jones in the environmental court. The motion claimed that Mr. Jones "ha[d] continued to advertise and rent" his property "in violation of the [environmental court's] order." Mr. Jones "agree[d] that he willfully violated" the environmental court's order "and thus [wa]s in contempt of court." So, in December 2017, the court entered an agreed order finding that Mr. Jones "was in contempt for 15 days" and ordering him to pay a $750 fine, $50 per day of contempt.

In November 2018, Metro filed another motion for contempt against Mr. Jones in the environmental court. The motion again claimed that Mr. Jones "ha[d] continued to operate a [STRP] and advertise a [STRP]" at his property. After a hearing on the motion, a referee of the environmental court found Mr. Jones in contempt and sentenced him to two days in jail.

Mr. Jones requested a rehearing before a judge of the environmental court. After the rehearing, the judge found that Mr. Jones was in contempt for 401 days and sentenced him to three days in jail. The judge also assessed a $20,050 fine, $50 per day of contempt.

Mr. Jones then appealed to circuit court for a new trial. See Tenn. Code Ann. § 27-5-108(a)(1), (c) (Supp. 2020) (allowing a party to "appeal from a decision of the generalsessions court to the circuit court," where the appeal "shall be heard de novo"). After the trial, the circuit court found Mr. Jones guilty of eighteen counts of criminal contempt and sentenced him to 180 days in jail with all but four days suspended.

II.

A.

Mr. Jones raises eleven issues on appeal. Before challenging the sufficiency of the evidence to support his convictions, as well as his sentence, Mr. Jones raises various questions of law. Among those questions, he argues that the environmental court's enabling statute is unconstitutional. He also argues that the referee of the environmental court lacked authority to issue the injunction and to punish Mr. Jones for criminal contempt.

Mr. Jones did not make these arguments to the environmental court or the circuit court. "[M]atters not raised at the trial level are considered waived." Eagles Landing Dev., LLC v. Eagles Landing Apartments, LP, 386 S.W.3d 246, 254 (Tenn. Ct. App. 2012). This general rule "applies to an attempt to make a constitutional attack upon the validity of a statute for the first time on appeal."¹ Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983); see Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 457 (Tenn. 1995) (reasoning that "issues of constitutionality should not first surface on appeal"); City of Elizabethton v. Carter Cty., 321 S.W.2d 822, 827 (Tenn. 1958) ("We do not have any sympathy for the practice of raising constitutional questions for the first time on appeal . . . ."). And "[a]n objection to a judge's competence cannot be made for the first time on appeal" either. Dupuis v. Hand, 814 S.W.2d 340, 342 (Tenn. 1991).

Nevertheless, Mr. Jones argues that he did not waive these issues because subject matter jurisdiction cannot be waived. See In re Baby, 447 S.W.3d 807, 837 (Tenn. 2014) ("Issues related to subject matter jurisdiction . . . are not subject to waiver."). But neither issue implicates subject matter jurisdiction. So we conclude that Mr. Jones waived his arguments to the constitutionality of the environmental court's enabling statute and to the referee's authority.

The constitutionality of a statute implicates subject matter jurisdiction only if the statute grants jurisdiction. See McCarver v. Ins. Co. of Pa., 208 S.W.3d 380, 383 (Tenn. 2006) (not deeming a constitutional argument waived because the statute "grant[ed] jurisdiction to the General Sessions Court"). The enabling statute did not grant jurisdictionto the environmental court. The Metro charter did. See Metro. Gov't of Nashville & Davidson Cty. v. Ollis, No. M2010-02046-COA-R3-CV, 2011 WL 2991616, at *2 (Tenn. Ct. App. July 22, 2011); see also Tenn. Code Ann. § 7-3-311(f) (2015) (permitting a metropolitan government's charter to vest "jurisdiction to hear, try and dispose of all cases arising under the . . . ordinances . . . of the metropolitan government" in a general sessions court). The charter provides that the Metro General Sessions Court, of which the environmental court is a division, "shall have exclusive jurisdiction to hear, try and dispose of cases involving the breach of any and all ordinances . . . of [Metro]." METRO. GOV'T OF NASHVILLE & DAVIDSON CTY. CHARTER § 14.02. The enabling statute then allows the environmental court to "order any defendant found guilty of violating [certain] metropolitan ordinance[s] . . . to correct such violation at the defendant's own expense." 1993 Tenn. Pub. Acts 316. So the enabling statute only designates the environmental court to hear specific types of cases that all general sessions courts already had jurisdiction to hear.² Because the enabling statute did not grant jurisdiction to the environmental court, its constitutionality does not implicate subject matter jurisdiction.

The referee's authority also does not implicate subject matter jurisdiction. Tennessee courts have not found that the authority of judicial officers is an issue of subject matter jurisdiction. See Tenn. Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 762, 764 (Tenn. Ct. App. 2006) (holding that a challenge to the authority of a special judge was waived despite the party's argument that the issue "[went] to . . . jurisdiction"). It is "well settled . . . that a party may waive the incompetency or lack of authority to act of the trial judge." Winters v. Allen, 62 S.W.2d 51, 52 (Tenn. 1933); see Wroe v. Greer, 32 Tenn. (2 Swan) 172, 173 (1852) ("The objection for incompetency of the justice should have been taken before him, and before a trial upon the merits; if not so taken, the objection is to be considered as waived.").

B.

As for his other questions of law, Mr. Jones argues that the environmental court lacked jurisdiction and that its injunction was improper. His arguments about the injunction involve the interpretation of statutes and of the environmental court's order itself. Mr. Jones further claims that he was given insufficient notice of the contempt charges in both the environmental and circuit courts. We review these questions of law de novo. See Turner v. Turner, 473 S.W.3d 257, 268 (Tenn. 2015) (subject matter and personal jurisdiction); State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010) (interpretation of statutes); Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 356(Tenn. 2008) (interpretation of court orders); Sprague v. Sprague, No. E2012-01133-COA-R3-CV, 2013 WL 3148278, at *3 (Tenn....