Joseph J. Levitt, Jr. v. City of Oak Ridge

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 10, 2014 Session

JOSEPH J. LEVITT, JR. v. CITY OF OAK RIDGE, ET AL.

Appeal from the Chancery Court for Anderson County

No. 13CH5413 William E. Lantrip, Chancellor

No. E2013-02625-COA-R3-CV-FILED-SEPTEMBER 10, 2014

Joseph J. Levitt, Jr. (“Plaintiff”) appeals the dismissal of his suit against the City of Oak

Ridge, Oak Ridge Board of Building and Housing Appeals, and Denny Boss (“Defendants”)

entered by the Chancery Court for Anderson County (“the Trial Court”). We find and hold,

as did the Trial Court, that Plaintiff’s suit is barred by res judicata, and we affirm. We

further find and hold Plaintiff’s appeal to be frivolous and remand to the Trial Court for an

award of damages for frivolous appeal.

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

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY

J., and D. K ELLY T HOMAS, J R., S P.J., joined.

Joseph J. Levitt, Jr., Knoxville, Tennessee, pro se appellant.

John T. Batson and Dan R. Pilkington, Knoxville, Tennessee, for the appellees, City of Oak

Ridge, Oak Ridge Board of Building and Housing Appeals, and Denny Boss.

OPINION

Background

This is the second time the parties and the issues involved in this suit have been

before this Court. In Levitt v. City of Oak Ridge, this Court explained:

In this case, Joseph J. Levitt, Jr. (“Owner”) was the owner of

Applewood Apartment Complex (“Applewood”), which consisted of 13

apartment buildings located in Oak Ridge, Tennessee. On May 26, 2009, the

City obtained administrative inspection warrants to inspect four buildings (“the

subject buildings”) in Applewood. The next day, the City and a private

engineering firm hired by the City, Corum Engineering (“Corum”), inspected

the subject buildings. Corum conducted a structural evaluation of the subject

buildings. The City and Corum developed independent findings and issued

reports based upon those findings. Timothy Ward, the Community

Development Division Manager, mailed Owner a violation notice, . . . .

***

The notice and the inspection results were also hand-delivered to Owner’s

staff. When Owner did not respond, the City issued a second notice containing

the same information.

In April 2010, Owner requested reinspection of one apartment, which

was found to be in compliance. Owner did not indicate that he had completed

any additional repairs. In October 2010, the City advised Owner that a hearing

to determine whether the structures were unfit for human occupation or use

would be held on November 11, 2010.

***

Following the hearing, the Board issued an order finding that the

subject buildings were unfit for human occupation or use and should be

demolished. In its order, the Board listed several violations of the

International Property Maintenance Code, which was adopted by the City in

the Code. The Board stated that its decision was based upon the specifically

mentioned code violations and the additional code violations set out in the

Board’s notice to appear and in the Corum report. Owner filed a complaint

“for appeal, certiorari, and supersedeas” against the City, the Board, and

Denny Boss. The trial court treated the complaint for appeal as a petition for

writ of certiorari.

Owner raised a number of issues relating to the hearing before the

Board, the Board’s bias, and the administrative inspection warrants. Relative

to the hearing, Owner alleged that the Board was not authorized to conduct the

hearing because the city manager did not initiate the proceeding; that the City

failed to provide notice of the hearing to all of the parties in interest; that the

inspections relied upon by the Board were approximately 18 months old; and

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that the order did not conform to the motion before the Board at the hearing.

Relative to bias, Owner stated, “Mr. Lee displayed an obvious bias against

[me] because [I] had asked the [B]oard to give [me] the same amount of time

Mr. Lee had taken to remodel a residence.” Relative to the warrants, Owner

argued that the warrants were invalid, unconstitutional, and did not comply

with Tennessee Code Annotated section 68-120-117. Owner also complained

that his failure to complete his reconstruction efforts was a direct result of his

belief that the City intended to purchase the property.

The City, the Board, and Denny Boss (“Defendants”) denied the

allegations, alleged that the Board and Mr. Boss were not properly joined as

parties, and noted that review of the Board’s decision was limited to the

question of whether the Board exceeded its jurisdiction or acted illegally,

arbitrarily, capriciously, or fraudulently. The court granted the motion to

dismiss as to any causes of action in addition to the petition and as to any

causes of action against the Board and Mr. Boss “in their individual capacity.”

Defendants filed a motion for summary judgment along with a

statement of undisputed material facts. Defendants alleged that the Board’s

decision was supported by the record and should be upheld. They argued that

the Board had not exceeded its jurisdiction in declaring the subject buildings

unfit for human occupation or use when Owner did not refute the evidence

presented at the hearing or offer any evidence that the subject buildings were

fit for human occupation or use. Owner responded to the motion by asserting

that the motion did not address the issues raised in his petition. He alleged that

each of the subject buildings could be reasonably repaired, altered, or

improved. He argued that the evidence before the board was inadmissible

because it was obtained as a result of the execution of invalid administrative

inspection warrants.

Following a hearing on the motion for summary judgment, the court

held that the Board’s decision was supported by the record and was not

unlawful, arbitrary, or capricious. In so holding, the court noted that it was

limited to the record and the facts presented to the Board . . . .

Levitt v. City of Oak Ridge, No. E2011-02732-COA-R3-CV, 2012 Tenn. App. LEXIS 753,

at **6-20 (Tenn. Ct. App. Oct. 30, 2012), no appl. perm. appeal filed (“Levitt I”). In Levitt

I, this Court reversed the grant of summary judgment only on the issue of whether the Board

acted without material evidence to support its decision to demolish the subject buildings but

affirmed the grant of summary judgment on all other grounds including the Board’s

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determination that the buildings were unfit for human occupancy. Id. at 40. We remanded

the case to the Board for further proceedings consistent with our Opinion in Levitt I. Id. No

application for permission to appeal our decision in Levitt I was filed, and our decision in

Levitt I became final on January 3, 2013.

Upon remand, in March of 2013, the Oak Ridge Board of Building and

Housing Code Appeals (“the Board”) held a hearing “to declare the subject property unfit for

human occupation and use as set out in [Levitt I] . . . .” After the hearing, the Board entered

an order on April 5, 2013 (“2013 Board’s Order”) finding that the subject buildings were

“still in violation of City Codes and not fit for human occupancy and use . . . ,” and ordered,

as pertinent, that a separate hearing be held at a later date with regard to the issue of

demolition of the subject buildings.

In June of 2013, Plaintiff filed with the Trial Court a Second Complaint for

Appeal, Certiorari, and Supersedeas, or in the alternative to Supersedeas, for an Injunction

(“Second Complaint”) against Defendants seeking to overturn the 2013 Board’s Order.

Defendants filed a motion to dismiss asserting, among other things, that Plaintiff’s suit was

barred by res judicata. After a hearing the Trial Court entered its order on October 28, 2013

finding and holding, inter alia:

[T]he issues raised by the Plaintiff have already been litigated by this Court

and the Tennessee Court of Appeals in Joseph J. Levitt, Jr. v. City of Oak

Ridge, Oak Ridge Board of Building and Housing Code Appeals and Denny

Boss, Anderson County Chancery Court No. 11CH2768, Court of Appeals No.

E2011-02732-COA-R3-CV. The only issue on remand from the Court of

Appeals is a determination of whether the buildings should be demolished.

The Motion to Dismiss is well taken and it is hereby granted.

Plaintiff appeals the dismissal of his suit.

Discussion

Although not stated exactly as such, Plaintiff raises two issues on appeal: 1)

whether the Trial Court erred in dismissing his suit on the ground of res judicata; and 2)

whether the Trial Court erred in not requiring the filing of a transcript of the hearing held

before the Board. Defendants raise an issue regarding whether Plaintiff’s appeal is frivolous

entitling them to an award for damages.

We first consider whether the Trial Court erred in dismissing Plaintiff’s suit

on the ground of res judicata. “A trial court’s decision that a subsequent lawsuit is barred

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by principles of res judicata presents a question of law which this court reviews de novo.”

In re: Estate of Boote, 198 S.W.3d 699, 719 (Tenn. Ct. App. 2005). Our Supreme Court has

discussed res judicata and collateral estoppel stating:

The term “res judicata” is defined as a “[r]ule that a final judgment

rendered by a court of competent jurisdiction on the merits is conclusive as to

the rights of the parties and their privies, and, as to them, constitutes an

absolute bar to a subsequent action involving the same claim, demand or cause

of action . . . . [T]o be applicable, it requires identity of cause of action, or

person and parties to action, and of quality in persons for or against whom

claim is made.” Black’s Law Dictionary 1172 (5th ed. 1979)(citations

omitted). We have recently discussed the doctrine and its related counterpart,

collateral estoppel, as follows:

The doctrine of res judicata bars a second suit between the same

parties or their privies on the same cause of action with respect

to all issues which were or could have been litigated in the

former suit. Collateral estoppel operates to bar a second suit

between the same parties and their privies on a different cause

of action only as to issues which were actually litigated and

determined in the former suit.

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989)(quoting from Massengill

v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987)). Res judicata and collateral

estoppel apply only if the prior judgment concludes the rights of the parties on

the merits. A. L. Kornman Co. v. Metropolitan Gov’t of Nashville & Davidson

County, 216 Tenn. 205, 391 S.W.2d 633, 636 (1965). One defending on the

basis of res judicata or collateral estoppel must demonstrate that 1) the

judgment in the prior case was final and concluded the rights of the party

against whom the defense is asserted, and 2) both cases involve the same

parties, the same cause of action, or identical issues. Scales v. Scales, 564

S.W.2d 667, 670 (Tenn. App. 1977), cert. denied, (Tenn. 1978).

Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995).

In his brief on appeal, Plaintiff argues that the issues raised in the Second

Complaint could not have been litigated in Levitt I because they involve things that happened

after this Court decided Levitt I, such as the hearing of the Board which led to the entry of

the 2013 Board’s Order. A careful and thorough review of Plaintiff’s Second Complaint,

however, reveals that Plaintiff simply is attempting to re-raise and re-litigate the same issues

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which were finally decided by this Court in Levitt I. The only thing left to be done by the

Board on remand pursuant to Levitt I was, as the Trial Court stated, to determine “whether

the buildings should be demolished.”

The Board hearing and the 2013 Board’s Order acknowledged our Opinion in

Levitt I, correctly stated that the Board’s “original Order was upheld by the Court of Appeals

and is a Final Order which declared the structure(s) located on the Property unfit for human

occupancy or use,” and ordered that a separate hearing be held at a later date on the issue of

demolition, which was the only issue we remanded to the Board in Levitt I. The fact that the

Board held a hearing and acknowledged our Opinion in Levitt I, does not constitute new facts

or a change in facts that altered the legal rights and relations of the parties, which might, in

some circumstances, justify later consideration of rights or the re-examination of an issue.

See In re: Estate of Boote, 198 S.W.3d at 719 (stating: “A prior judgment or decree does not

prohibit the later consideration of rights that had not accrued at the time of the earlier

proceeding or the re-examination of the same question between the same parties when the

facts have changed or new facts have occurred that have altered the legal rights and relations

of the parties.”). Plaintiff is attempting with his Second Complaint to obtain another ‘bite

at the apple,’ to which Plaintiff is not entitled.

Both Levitt I and Plaintiff’s Second Complaint involve the same parties and the

same issues. The judgment in Levitt I is final and concluded the rights of the parties except

as to the sole issue with regard to demolition, which in Levitt I this Court remanded to the

Board for re-consideration. As best as we can tell from the record on appeal, the issue with

regard to demolition has not yet been decided or even considered by the Board upon remand.

As such, the issue with regard to demolition is not yet ripe for review. With regard to all

other issues raised by Plaintiff in his Second Complaint, we find no error in the Trial Court’s

dismissal of Plaintiff’s claims because this suit is barred by res judicata 1 .

Finally, we consider the issue raised by Defendants regarding whether

Plaintiff’s appeal is frivolous. “‘A frivolous appeal is one that is ‘devoid of merit,’ or one

in which there is little prospect that [an appeal] can ever succeed.’” Morton v. Morton, 182

S.W.3d 821, 838 (Tenn. Ct. App. 2005) (quoting Industrial Dev. Bd. of the City of Tullahoma

v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). In pertinent part, Tenn. Code

Ann. § 27-1-122 addresses damages for frivolous appeals stating:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

1

Our determination regarding Plaintiff’s first issue renders Plaintiff’s second issue moot.

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appellant, which may include, but need not be limited to, costs, interest on the

judgment, and expenses incurred by the appellee as a result of the appeal.

Tenn. Code Ann. § 27-1-122 (2000).

As discussed more fully above, Plaintiff’s Second Complaint is simply an

attempt to re-litigate issues which were fully and finally decided in Levitt I. As such,

Plaintiff’s appeal of the Trial Court’s dismissal of his Second Complaint is devoid of merit.

We, therefore, hold this appeal to be frivolous and remand to the Trial Court for a

determination of the proper award of damages to Defendants for Plaintiff’s frivolous appeal.

After determining the proper award of damages for frivolous appeal, the Trial

Court is directed to remand this case to the Board “to accept relevant evidence and testimony

regarding the value of the subject buildings and the cost to repair them and to reach a

decision [regarding demolition] based on that evidence,” in compliance with our Opinion in

Levitt I. Levitt I, 2012 Tenn. App. LEXIS 753, at *38.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for a determination of damages for frivolous appeal, for remand to the Board, and

for collection of the costs below. The costs on appeal are assessed against the appellant,

Joseph J. Levitt, Jr., and his surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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