FILED

January 13, 1999

Cecil Crowson, Jr.

Appellate Court

Clerk

 IN THE COURT OF APPEALS

AT KNOXVILLE

R&E PROPERTIES, ) HAMILTON CIRCUIT COURT

) C.A. No. 03A01-9804-CV-00133

)

 Plaintiff-Counter-Defendant- )

Appellee )

)

) HON. ROBERT M. SUMMITT

vs. ) JUDGE

) 

)

RON JONES and SANDY JONES, )

)

)

 Defendants-Counter-Plaintiffs- ) AFFIRMED AND REMANDED

Appellants )

LYNNE DECHMAN, Chattanooga, for Appellants.

WILLIAM WEEKS, Wagner, Nelson & Weeks, Chattanooga, for Appellees.

SARAH A. HIESTAND, Nashville, for State of Tennessee.

O P I N I O N

McMurray, J.

This is a detainer action. R&E Properties (R& E), th e

appellee, is a partnership that owns Woodland Mobile Home Park in

Hamilton County, Tennessee. Ron and Sandy Jones (the Joneses), the

appellants, and R &E entered into a six-month lease agreement for

rental of a mobile home lot. During the period of the lease
2

agreement, problems arose regarding the Joneses' tenancy. Before

the expiration of the lease, R&E notified the Joneses that their

lease would not be extended. Sandy Jones apparently persuaded R&E

t o let her family continue their tenancy until they could obtain

the money to move. R&E consented to this arrangement, but when the

Joneses still did not m ove, R&E n otified the Jones in June 1997

that their t enancy would be terminated effective August 1, 1997.

The Joneses did not move by August 1, 1997, and R&E filed a

detainer action in Hamilton County General Sessions Court. R&E was

awarded possession of the premises. The Joneses appealed de novo

t o the Hamilton Co unty C ircuit Court and filed a counterclaim

against R&E, alleging in essence the same issues presented in this

Court on appeal. After a trial in February 1998, the trial court

ruled in favor of R&E. The Joneses now appeal the judgment of the

trial court. We affirm the judgment of the trial court in its

entirety.

The Joneses present four issues for our consideration: 

1 . Whether R&E violated Tennessee Code Annotation §

66-28-512(b) by not giving a 30-day notice when it

accepted rent without reservation and with

knowledge of the Joneses' default, and if R&E by

such acceptance condoned the breach and thereby

waived their rights and became estopped from

terminating the rental agreement.

2 . Whether R&E violated the Fair Ho using Act, as

amended, 42 U.S.C. § 3601 and the Tennes see Human

Rights Act, Tennessee Code Annotated § 4-21-301 by

the will f ul, wanton, and malicious creation of a
3

hostile environment against the Joneses and their

three children, without cause, by discriminating

against them in the terms, conditions, or

privileges of the rental of the lot, and in the

provision of services of the facility in connection

therewith, because of their familial status.

3 . Whether Tennessee Code Annotated §§ 29-18-128

through -130 vi olate s the due process and equal

protection clauses of the Fifth and Fourteenth

Amendments of the United States Constitution by

denying meaningful access to the Tennessee courts.

4 . Whether Tennessee Code Annotated §§ 29-18-128

through -130 violates the Open Co urt and Due

Process provisions of Article I, Section 17 of the

Tennessee Constitution and the Pauper's Oath of

Tennessee Code Annotated § 20-12-127(a) by denying

meaningful access to the Tennessee courts.

 

O n October 1, 1996, R&E entered into a six-month lease

agreement with the Joneses for rental of a mobile home lot in the

Woodland Mobile Home Park in Hamilton County. From the outset, R&E

experienced problems with the Joneses' tenancy. R&E sent several

letters to the Joneses and requested that they remove a vehicle

parked in the yard instead of the driveway, remove toys and boxes

strewn over their yard, perform the required underpinning of their

mobi l e hom e, and properly dispose of their garbage instead of

placing it in their truck. On March 10, 1997, R&E sent a notice to

the Joneses that their lease, which was to expire on April 1, 1997,

would not be extended and that they needed to move. According to

Paula Ellis, one of the partners who owns the mobil e home park,

Sandy Jones asked that she and her family be allowed to stay until

they could obtain the money to relocate. Ms. Ellis agreed to this
4

arrangement. Finally, when the move did not occur, R&E sent a

notice on June 26, 1997 informing the Joneses that their tenancy

would be terminated effective August 1, 1997. On August 5, 1997,

R&E filed an unlawful detainer warrant, but it could not be served

o n the Joneses. R&E then filed an alias unlawful detainer warrant

on September 3, 1997, and this warrant was served on the Joneses.

 As a result of the detainer action in general sessions court, R&E

was awarded possession of the premises, and the Jo nes es were

required to move. The Joneses appealed to circuit court, and

following a tr ial in Feb ruary 1998, the court ruled in favor of

R&E. The Joneses now appeal from that judgment.

I n their first iss ue, Joneses argue that R&E violated

Tennessee Code Annotated § 66-28-512(b) by not giving a 30-day

notice when it accepted rent without reservation, and therefore, is

estopped from terminating the re n tal agreement. Woodland Mobile

Home Park where the Joneses resided is located in Hamilton County,

which is subject to the Uniform Residential Landlord and Tenant Act

unde r Te nnessee Code Annotated § 66-28-101. The Joneses maintain

that their six-month lease ended on April 1, 1997, but R&E accepted

rent for April 1997 through June 1997 without reservation.

Furthermore, after the written notice dated June 26, 1997, R&E

accepted rent without reservation for July, August, and September

1997. They contend that under Tennessee Code Annotated § 66-28-

202(a) they had a month-to-month tenancy because R&E accepted rent
5

without reservation an d be cause there was no written agreement

between them and R&E.

The Joneses assert that they did not receive a 30-day notice

under Tennessee Code Annotated § 66-28-512(b)(1993), which states

that "[t]he landlord or the tenant may terminate a month-to-month

tenancy by a written notice given to the other at least thirty (30)

days prior to the periodic rental date specified in the notice." 

The Joneses contend that they did not receive notice that they were

being evicted and that acceptance of rent was not recognized as a

waiver by R&E until they received a letter from R&E dated September

9, 1997.

R&E asserts that the Joneses received adequate notice of the

termination of their month-to-month tenancy. R&E contends that on

March 10, 1997, notice was sent to the Jon eses that their lease

would not be extended and that they should m ove. After the

expiration of the lease, Sandy Jones notified Paula Ellis that she

and her family would move, but that they needed time to obtain the

money to relocate. How ever, when the Joneses did not move, R&E

sent another termination notice on June 26, 1997, that stated that

their tenancy would be terminated effective on August 1, 1997. R&E

filed a detainer action on August 5, 1997 an d acc epted rent from

the Joneses for August and September 1997. It maintains, however,

that it did not consent to an extension of the Joneses' month-to-
6

month tenancy after the filing of the detainer warrant on August 5,

1997.

I n addressing this issue, we note that the Joneses admit that

they had a month-to-month tenancy after t he expiration of their

lease on April 1, 1997. According to the record, Sandy Jones

asked that she and her family be permitted to stay at Woodland Park

until they could obtain the money to move. Paula Ellis consented to

this arrangement and accepted rent for the months of April, May,

and June. Howe ver, when it became apparent that the Joneses did

not plan to move, R&E sent another notice on Jun e 26, 19 97,

informing the Joneses that the ir tenancy would be terminated

effective August 1, 1997. 

W e find the Joneses' ar gum ent that they did not receive

a d equ ate notice and were unaware of what was occurring until

September 9, 1997 unpersuasive. The notice of June 26, 1997, gave

the Joneses well over the required 30-day notice that their tenancy

was to be terminated. Furthermore, the record reveals that the

June 26th notice, as well as sever al oth er pieces of

correspondence, was mailed to the Joneses by certified mail and was

received by Sandy Jones, whose signature appears on the receipt for

the June 26th notice. The fact that R&E accepted rent from the

Joneses during this time does not mean that R&E waived its right to

terminate the Jonese s' month-to-month tenancy. The Joneses
7

continued to occupy the premises for July, August, and September,

and therefore, owed the rent to R&E for th eir possession of the

premises. As R&E notes in its brief, and the record reveals, R&E

did not consent to the Joneses continued tenancy past August 1,

1997, but in fact, R&E filed an unlawful detainer action on August

5 , 1997. When that detainer warrant could not be served on the

Joneses, R&E persisted until a second detainer warrant was served

i n September 1997. We find nothing in the record to indicate that

the Joneses did not receive adequate notice of the termination of

their tenancy or that R&E consented to an extension of the Joneses'

month-to-month tenancy. Therefore, this issue is without merit. 

I n their second issue, the Joneses argue that R&E violated the

Fair Housing Ac t under 42 U.S.C. § 3601 and the Tennessee Human

Rights Act under Tennessee Code Annotated § 4-21-301. They assert

that R&E created a hostile environment against them and their three

children and discriminated against them in the rental of the mobile

home lot because of their familial status. 

The Joneses contend that R&E d id no t give them a reason for

their family's eviction. They argue that R&E sent two notices to

residents at the mobile home park that cr eated "a hostile

environment against families" and therefore, violated the Federal

Fair Housing Act and the Tennessee Human Rights Act. They further

assert that "R&E Properties rented to a family but made rules and
8

regulations that discourage rent al b y families and creates a

hostile, unreasonable and punitive environment against families who

rent from them." Specifically, the Joneses note that the notices

sent to residents banned bicycles in the park and required adult

supervision for children whenever they are outside. If these rules

are not followed, the family will be evicted. The Joneses contend

that such requirements constitute a "hostile environment."

R&E argues that the two notices the Joneses refer to do n o t

constitute discrimin atio n. It maintains that the notice dated

March 10, 1997 was issued for the safety of the children in the

park after several incidents involving children and that violating

these rules had nothing to do with the Joneses being evicted from

the park. Also, the notice dated September 3, 1997 was sent to

residents well after the Joneses had received notice on June 26,

1997 that their tenancy had been terminated. Therefore, these

notices had nothing to do with the Joneses' eviction. Moreover,

R&E contends that there is no "p attern of discrimination against

any families," because approximately three-fourths of the residents

have children.

The appellants appear to base their charge of discrimination

o n two notices that were sent to residents at Woodland Mobile Home

Park. The first notice, regarding parental responsibilities, was

dated March 10, 1997, and was sent by Paula Ellis:
9

Parents please keep in mind that the following 

are park rules and anyone who chooses to ignore

these rules will be evicted from the park. No

exceptions!

1. All children are to play in their own yards.

2. No bicycles are to be ridden on the streets.

3. All children walking from one lot to another

must be accompanied by an adult.

4. No child should be allowed to hang around

the bus stop.

5. No pellet or BB guns are allowed.

Parents you are responsible for your child's

whereabouts at all times.

....

The second notice, ti tled " Amendment to the Park Rules &

Regulations" and dated September 3, 199 7, n otifies all residents

about new rules within the mobile home park. Specifically,

bicycles would no longer be allowed on the grounds of the park, and

children should be accompanied by an adult when outside, not left

to roam through the park.

First, we address the two notices on which the Joneses appear

to base their discrimination argument. The first notice was sent

o n March 10, 1997, the day that the Joneses received no tice that

their lease, which expired April 1, 1997, would not be extended.

The s econd noti ce was sent on September 3, 1997, well after the
1 0

June 26th notice to the Joneses that their tenancy would not be

renewed. Fu rthermore, the well-documented record in this case

provides no less than four letters f rom R &E to the Joneses about

their violation of park rules before the March 10th notice was

sent. These letters to the Joneses addressed such issues as their

failure to underpin their trailer, their failure to remove garbage

from their lot, their failure to park vehicles in the driveway

instead of their yard, and their failure to remove a c ar tr ailer

from the lot. 

Second, the evidence presented at trial supports R &E' s

contention that safety con cern s motivated the sending of the

notices to residents. Paula Ellis, one of the partners who owns

the mobile home park, testified that she sent the first notice for

the safety of the children in the park after several incidents

involving children. She stated that one woman's car had been

scratched by a bicycle, and a man stated that he had almost hit a

child on a bicycle who darted in front of h im. Ms. Ellis also

testified that on several occasions, she had tried to turn into the

park and could not because of children on bicycles lingering at the

entrance of the park.

Third, the record indicates that R&E did not dis criminate

against indivi dual s with children. Ms. Ellis testified that

approximately three-fourths of the residents had children. She
1 1

further testified that of approximately sixty evictions, only two

evictions were based on a violation of rules and regulations. 

Based on the foregoing, we conclude that the Joneses were not

discriminated against based on familial status. Therefo re, this

issue is without merit.

I n their third issue, the Joneses argue that Tennessee Cod e

Anno tate d §§ 29-18-128 through -130, which pertain to bond

requirements f or review of a detainer action, violate the Equal

Protection and the Due Process clauses of the United States

Constitu t i o n because they limit certain individuals' right to

appeal. Although th e Jo neses acknowledge that the Tennessee

Supreme Court has concluded that these statutes do not impose an

unreasonable burden on the right to appeal, they argue that the

Court should have applied a strict scrutiny test instead of a

rational basis test in reaching its decision. They contend that

these statutes and government actions are subject to the st ric t

scrutiny test because they "purposefully d iscriminate against a

suspect class and infri nge upon a fundamental right." Although

they recognize that poverty is not a suspect class, they argue that

"where the exercise of fundamental rights is exclusively linked to

wealth, strict scrut iny wi ll be applied." They maintain that

familial rights, the right to associate, and the right of access to

the courts are fundamental rights that are at issue in this case.
1 2

Rule 24.04 of the Tennessee Rules of Civil Procedure states:

When the validity of a statute of this state or an

administrative rule or regulation of this state is drawn

i n 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, rule or regulation.

Therefore, with r espe ct to the Joneses' challenge to the

constitutionality of these statutes, the State has responded. It

argues that the Joneses lack standing to challenge the statutes and

that the statutes are constitutional. First, the State asserts

that the Jone ses lack standing to challenge Tennessee Code

Annotated § 29-18-1 30(b )(2) because its bond requirement is only

for tenants who lose possession for failure to pay rent, which did

not occur in the Joneses' case. Furthermore, the State argues that

the J ones es probably lack standing to challenge Tennessee Code

Annotated § 29-18-129 because they did not pursue the remedy of

certiorari and supersedeas. However, the J oneses argue that the

State has waived its right to challenge standing because it raised

the issue of standing for the first time in its brief. 

Notwithstanding its argument that the Joneses lack standing to

challenge the constitutionality of these statutes, the State argues

that our Supreme Court has held that Tennessee Code Annotated §§

29-18-128 through -130 do not impose an unreasonable burden on the
1 3

right of appeal. In 1992, our Supreme Court held that Tennessee

Code Annotated §§ 29-18-128 through -130 did not impos e an

unreasonable burden on the right of a ppeal in Newport Housing

Authority v. Ballard , 839 S.W.2d 86 (Tenn. 1992). The court stated

the following:

The appeal bond requirements of T.C.A. § 29-18-128

through § 29-18-130 do not impose any unreasonable or

irrational burdens upo n par ties seeking to appeal an

adverse decision from the general sessions court.

Moreover, the right to appeal and the concomitant right

t o a trial by jury is preserved even for those litigants

without financial reso urce s. As this Court has long

recognized, if a pa rty "is willing to surrender

possession pending the litigation in the higher courts,

there is a remedy by appeal which may be obtained on the

pauper oath."

Id. at 90. (citation omitted). We conclude, therefore, that the

Joneses' argument on this issue is without merit.

I n their fourth and fi nal issue for our consideration, the

Joneses assert that Tennessee Code Annotated §§ 29-18-128 through

-130 violate the Open Court and Due Process provisions of Article

1 , Section 17 of the Tennessee Constitution as well as the Pauper's

Oath, under Tennessee Code Annotated § 20-12-127(a), by denying

them meaningful access to the Tennessee courts. Article I, Section

17 states in relevant part:

That all courts shall be open; and every man, for an

injury done him in his lands, goods, person or
1 4

reputation, shall have remedy by due course of law, and

right and justice administered without sale, denial, or

delay.

The Joneses contend that "[n]o amount of bond or money can

keep a defendant in possession in Tennessee" and that the bond

requirement "serves no other purpose than to deter suits by poor

persons and families when they have been unjustly evicted." The

Joneses argue that they could pay their rent during their appeal,

a s it became due, into the circuit court, but they could not pay a

year's rent in advance. Thus, the appellants contend that their

access to the courts and their due process rights have been

violated. 

A s to the Pauper's Oath, under Tennessee Code Annotated § 20-

12-127(a), the Joneses conte nd t hat "[r]equiring one year's rent

from a General Sessions Court Judgment of Possession to appeal d e

novo to the state court system is a contridict ion [sic] of the

Pauper's Oath statute, " whic h states that an action may be

commenced without giving security. They argue that although they

had appe aled, a writ of possession was served upon them by the

sheri ff, and they were required to relinquish possession of the

premises.

A s with the third issue, the State co ntends that the

appellants lack standing to challenge these statutes.
1 5

Notwithstanding that issue, the state asserts that the bond

requirement is not excessi ve and that the Joneses could have

remained in possession had they chosen the appropriate r emed y .

Furthermore, it maintains that the Joneses' argument that "[n]o

amount of bond or money ca n keep a defendant in possession in

Tennessee" is simply incorrect.

In its brief, the State outlines two remedies that exist for

having a detainer judgment heard in the circuit court: by appeal

and by certiorari and supersedeas. According to case law, the

state maintains that if a defendant pursues an appeal, he cannot

keep possession of the premises during the litigation, but the

landlord, by giving a bond double the value of one year's rent, can

obtain possession immediately. Robinson v. Pennsylvania Mut. Life

Ins. Co. , 22 Tenn. App. 387, 391, 123 S .W.2d 848 , 850 (1938).

However, a defendant can retain possession by pursuing the remedy

o f certiorari and supersedeas and by giving bond to cover costs,

damages, and the value of the rent during the litigation in circuit

court. Id. Basically, the supersedeas stays the writ of

possession, and the writ of certiorari pr esents the case for

review. Nashville Hous. Auth . v. Kinnard , 186 Tenn. 33, 36, 207

S.W.2d 1019, 1020 (1948).

Therefore, the State contends that the writs of certiorari and

supe rsedeas provide for the possibility to retain possession, if
1 6

the appropriate bond is given. With respect to the amount of bond

required, the State suggests that "the court clerk may have

required a bond amount that is quite similar to that in Tenn. Code

Ann. § 29-18-130(b)(2) in order to be regarded as sufficient, but

the statute governing the circumstance is different and does n o t

expressly require one year's rent or any other specific number." 

Furthermore, the State argues that the Joneses have not been

denied due process and have not been denied access to the courts.

The State notes that the two requirements of due process are notice

and an opportunity to be heard and that the Joneses have not been

denied these two requirements. They have not contested notice and

were given an opport uni ty to be heard at every stage of this

proce edi ng: at the general sessions level, at the circuit court

level, and at th e appe llate level. Furthermore, the State

maintains that the Joneses appealed to the Circuit Court and to

this Court on a Pauper's Oath, and therefore, have not been

prevented from having their day in court. 

The State notes that the Pauper's Oath "will obtain an appeal

o r certiorari of the detainer ju dgm ent, but will not stay

possession." However, "the supersedeas may issue upon application

i n forma pauperis, if an express order of the judge is granted, on

notice to the adverse party of the application in forma pauperis,

dispensing with security." See Tenn. Code Ann. § 27-8-113.
1 7

Although we are inclined to agree with the Stat e that th e

Joneses' standing to challenge the constitutionality of Tennessee

Code Annotated §§ 29-18-128 through -130 is questionable, we will

nevertheless address the merits of their argument. As the State

ably notes in its brief, the Joneses had the remedy of certiorari

and supersedeas available to them, so they could have in dee d

retained possession of the premises had they chosen that route for

review of their case. R&E should not be required to forgo some

form of security for the Jon eses' continued possession of its

property. To do so would be an injustice to R&E. Furthermore, we

find no eviden ce that the Joneses have been denied meaningful

access to the courts of this state or hav e been denied an

opportunity to be heard. As the State notes, they have been

permitted ac cess to the circuit court and to this Court by the

Pauper's Oath. Based on the foregoing, we conclude that this issue

is without merit.

W e affirm the judgment of the trial court in all respects.

Costs of this appeal are taxed to the appellants, and this case is

remanded to the trial court.

___________________________

Don T. McMurray, Judge
1 8

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge

___________________________________

Charles D. Susano, Jr., Judge
 IN THE COURT OF APPEALS

AT KNOXVILLE

R&E PROPERTIES, ) HAMILTON CIRCUIT COURT

) C.A. No. 03A01-9804-CV-00133

)

 Plaintiff-Counter-Defendant- )

Appellee )

)

) HON. ROBERT M. SUMMITT

vs. ) JUDGE

) 

)

RON JONES and SANDY JONES, )

)

)

 Defendants-Counter-Plaintiffs- ) AFFIRMED AND REMANDED

Appellants )

JUDGMENT

This appeal came on to be heard upon the record from the

Circuit Court of Hamilton County, briefs and argument of counsel.

Upon consideration thereof, this Court is of the opinion that there

was no reversible error in the trial court.

W e affirm the judgment of the trial court in all respects.

Costs of this appeal are taxed to the appellants, and this case is

remanded to the trial court.

 PER CURIAM