State ex rel. Dep't of Transp. v. Thomas, No. W2018-01541-COA-R10-CV

CourtCourt of Appeals of Tennessee
Writing for the CourtJ. STEVEN STAFFORD, JUDGE
Docket NumberNo. W2018-01541-COA-R10-CV
Decision Date15 April 2019


No. W2018-01541-COA-R10-CV


Assigned on Briefs March 1, 2019
April 15, 2019

Appeal from the Chancery Court for Shelby County
Walter L. Evans, Judge

The trial court reinstated its previous ruling that had been reversed on appeal because a "change in the controlling law" occurred that justified departure from the law of the case doctrine. Because we conclude that no change in controlling law occurred to allow the trial court to avoid application of the law of the case doctrine, we reverse the order of the trial court and remand for further proceedings before a different trial judge.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which RICHARD H. DINKINS and JOHN W. MCCLARTY, JJ., joined.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; George G. Boyte, Jr., Deputy Attorney General, for the appellant, State of Tennessee ex rel. Department of Transportation.

William H. Thomas, Jr., Memphis, Tennessee, Pro se.1



This is the third appeal in this case. For purposes of continuity, we take many of the initial facts from our first opinion, State ex rel. Com'r of Dep't of Transp. v. Thomas, 336 S.W.3d 588 (Tenn. Ct. App. 2010) (hereinafter "Thomas I"). The genesis

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of this dispute is an action by Plaintiff/Appellant State of Tennessee on behalf of the Commissioner of the Department of Transportation ("the State" or "TDOT") against Defendant/Appellee William H. Thomas, Jr., regarding Mr. Thomas's alleged construction and operation of several unpermitted billboards in violation of the Billboard Regulation and Control Act of 1972 ("the Billboard Act"), codified at Tennessee Code Annotated section 54-21-101 et seq. Id. at 591-93. With regard to some of the unpermitted billboards, administrative hearings occurred in which Mr. Thomas was ultimately ordered to remove the unpermitted billboards. Id. at 592.

A. Thomas I

Mr. Thomas allegedly refused to comply with the orders to remove various unpermitted billboards following administrative hearings. Mr. Thomas also began construction on a new unpermitted billboard at the Crossroads Ford site despite the fact that his administrative appeal of the denial of his permit for that location was pending.2 Id. In response, the State filed an action in Shelby County Chancery Court for injunctive relief and a declaratory judgment. Id. at 593. The complaint alleged that construction of the Crossroads Ford billboard and use of it for outdoor advertisements would violate the Billboard Act and constitute a public nuisance. The State asked that the billboard be demolished at Mr. Thomas's expense and that any revenue from advertising obtained through the unpermitted billboards be placed in a constructive trust. Id.

Mr. Thomas filed an answer to the complaint admitting ongoing unpermitted construction of a billboard at the Crossroads Ford site. Id. Mr. Thomas denied, however, that the State was entitled to relief due to the ongoing administrative appeal concerning the billboard currently under construction. Mr. Thomas also filed a counterclaim against the State, asserting allegations of vindictive and discriminatory enforcement of the Act, unclean hands, and violations of due process and equal protection. Id. at 593-94.

A hearing was eventually held in which the State argued that the trial court lacked subject matter jurisdiction over Mr. Thomas's counterclaim because the relief sought could only be pursued in Davidson County under the Uniform Administrative Procedures Act. Id. at 594. Mr. Thomas countered that the trial court could issue injunctive relief against the State and that venue was proper in Shelby County based on a statute involving matters of real property. Following the hearing, the State filed a formal motion to dismiss Mr. Thomas's counterclaim for lack of subject matter jurisdiction. Id. at 595. The trial court eventually denied the State's motion to dismiss and granted relief in favor Mr. Thomas on virtually all of his claims. Id.

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A multitude of proceedings occurred thereafter in both the trial court and the pending administrative actions, culminating in a February 2008 final order. In this order, the trial court confirmed its prior ruling with regard to subject matter jurisdiction over Mr. Thomas's claims and ultimately ruled in favor of Thomas on a variety of claims, including directing the State to issue permits to Mr. Thomas for four billboards and awarding Mr. Thomas $10,000.00 in attorney's fees. Id. at 598-99. Following some post-judgment proceedings, the State appealed to this Court. Id. at 600.

In Thomas I, we defined the determinative issue to be whether the trial court had subject matter jurisdiction to adjudicate the claims for relief raised in Mr. Thomas's counterclaim, as well as the requests for relief that were predicated on the counterclaim. Id. at 601. Mr. Thomas argued that venue was proper in Shelby County because Tennessee Code Annotated section 20-4-107 provides that "[n]otwithstanding 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." Id. at 601-02. The State argued, however, that the claim was governed by the Uniform Administrative Procedures Act ("UAPA"), which provides for exclusive subject matter jurisdiction in the Davidson County Chancery Court. Id. at 601 (citing Tenn. Code Ann. § 4-5-322(a) (2005) ("Proceedings for review are instituted by filing a petition for review in the chancery court of Davidson County, unless another court is specified by statute.")).3

We agreed with the State's argument, concluding that the gravamen of Mr. Thomas's claim was an action against a commissioner and an appeal from a contested case before an agency. Id. at 602-03. Exclusive jurisdiction over these claims, however, was vested in the Davidson County Chancery Court. Id. (citing Tenn. Code Ann. § 4-5-322(a) (2005); Southwest Williamson County Comm. Ass'n v. Saltsman, 66 S.W.3d 872 (Tenn. Ct. App. 2001) (citing Tenn. Code Ann. §4-4-1-4(a)) (holding that a suit against a commissioner in his or her official capacity must be filed in the commissioner's official county of residence, i.e., Davidson County)).4 We dismissed Mr. Thomas's argument that

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section 20-4-107 allowed him to file his claim in Shelby County, as we concluded that this statute was merely a venue statute that did not alter the exclusive grant of subject matter jurisdiction to the Davidson County Chancery Court over UAPA matters and that, in any event, Mr. Thomas's claims were only "tangential[ly]" related to real property. Instead, the gravamen of Mr. Thomas's counterclaim was that he had been discriminated against during the administrative proceedings. After considering and rejecting a number of Mr. Thomas's other arguments, we ultimately concluded that "the defenses, claims, and requests for relief asserted by [Mr.] Thomas in the trial court below may only be heard in Davidson County." Id. at 608. The court noted, however, that Mr. Thomas was not left without a remedy as he was free to seek redress in Davidson County Chancery Court under the provisions of the UAPA. As a result, the trial court's judgment in favor of Mr. Thomas on these claims was "void and of no effect." Finally, we dismissed Mr. Thomas's counterclaim for lack of jurisdiction and remanded for further proceedings. Mr. Thomas thereafter appealed to the Tennessee Supreme Court; the court denied Mr. Thomas's application for permission to appeal on November 18, 2010. Mandate issued on December 9, 2010.

B. Thomas II

The dispute, however, was far from finished. While the appeal in Thomas I was pending, Mr. Thomas completed construction on the Crossroads Ford billboard. State ex rel. Dep't of Transportation v. Thomas, No. W2013-02082-COA-R3-CV, 2014 WL 6992126, at *5 (Tenn. Ct. App. Dec. 11, 2014) (hereinafter, "Thomas II"). Despite never obtaining a permit for this billboard, he began operating it in 2009. Id. The State thereafter sought to require Mr. Thomas to remove the billboard. Mr. Thomas responded that he would remove paid advertisements from the board and only display his "First Amendment Rights of Freedom and Speech" on the billboard "from time to time." The State thereafter sought restitution of costs paid in the first action. In March 2011, Mr. Thomas obtained an ex parte temporary restraining order ("TRO") enjoining the State from taking action to enforce the Billboard Act. The State responded in opposition, noting that the trial court's action conflicted with the mandate of Thomas I, that it did not receive proper notice of the request, and that the trial court's order was not properly supported. The trial court entered an order requiring that Mr. Thomas repay the full amount of attorney's fees awarded in Thomas I, but only half of the discretionary costs. Mr. Thomas refused to comply with the trial court's order, resulting in the State obtaining

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an abstracts of judgment for execution of the order of restitution. The trial court thereafter entered an order finding that the abstracts of judgment was entered in error and directed the State to release all judgment liens. Id.

On February 24, 2012, the State filed a motion for summary judgment, seeking a final declaratory judgment that Mr. Thomas operated the Crossroads Ford billboard in contravention of the Billboard Act. Id. The trial court denied the motion based on disputes of fact. A bench trial occurred in February 4, 2013, and an order was entered on August 2, 2013, enjoining Mr. Thomas from using the Crossroads Ford billboard for...

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