### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 8, 2001 Sess

ion BRENNCO INCORPORATED v. CITY OF CHATTANOOGA BETTER HOUSING COMMISSION Direct Appeal from the Chancery Court for Hamilton County No. 99-0847 Hon. W. Frank Brown, III., Chancellor

FILED JUNE 6, 2001 No.E2000-01508-COA-R3-CV

Plaintif f ’s action for an order restraining defendant from demolishing plaintiff’s buildings was ultimately

dismissed, after plaintiff failed to meet conditions set by the Court to keep the restraint in place. On appe

al, we affirm. Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined. Harry K. Hays, Chattanoog a, Tennessee, for Appellant, Brennco, Inc. Kenneth O. Fritz, Chattanooga, Tennessee, for Appellee, City of Chattanoog a, Tennessee.

OPINION

In this action plaintiff obtained a restraining order, restraining the defend ant f rom demolish ing plaintiff’s buildings. After a series of hearings and continuances, the Chancellor dismissed the action, and plaintiff has appealed.

When Brenda O’Linger, President of plaintiff corporation, was apprised of the City’s intent to demolish the properties for failure to repair, this action was instituted on July 30, 1999, and the Court issued a

restraining or

der on that date. T

hen on August

12, 1999, an on-site hearing was-2-

held, and as a re

sult, the Trial Judg

e entered an Or

der stating the p

laintiff would subm

it architectural and engineering drawings and plans for work on the buildings to defendant by August 31, and as a furth

er condition, the p

laintiff was to ap

ply for a building pe

rmit, as well as clean out combustibles and secure all of the buildings. I

f these conditions

were not met, the p

laintiff would then have fifteen da

ys to demolish

the buildings, an

d if plaintiff did no

t, the City cou

ld proceed with demolition. Another

hearing was held on August 31, wherein plaintiff’s witnesses explained that some tasks had been co

mpleted, but that oth

ers would take mor

e time to accomplish, and as a result, the previous Order was set aside and the restraining order continued. Plaintiff, however, was ordered to advise the City of

the status of the loa

n application by

November 5, 1999,

and also to

advise the City immediately if the loan was refused. If the plaintiff f ailed to obtain financing, the C ity was authorized to begin demolitio n, but if the loan wa

s approved, and c

losed by Ma

rch 1, 2000, the plaintiff would have fifteen days thereafter to beg in renovation. In February of 2000, plaintiff moved to extend the time, and furnished a letter from the loan repre sentative sta ting the loan could not be closed until June. The Court held another hearing and required the p laintiff to submit a firm commitment application and underwriting documents

to HUD by April 17, 2000, and if the plaintiff did not meet the April 17 deadline, the City could begin demolition o

n May 1 if plaintiff had not obtained a loan or begun demolition on its own. On May 24, 2000, plaintiff fil ed a Motion for Rec

onsideration, ask

ing the court to keep the defendant from beginning demolition, because plaintiff’s final loan request to HUD had not been submitted due to inconsistent figures from the contractor.

The City again filed a

Motion to Dismiss, and on June 5, 2000, the Court held another hearing and subsequently entered an Order deny ing plaintiff’s Motion to Reconsider and dismissed the action now on appeal. The Court also restrained the City from beginning demolition, pending the outcome of this appeal upon plaintiff’s making bond.

On appe al, plaintiff arg

ues that its due pro

cess rights wer

e violated becau

se Ms

. O’Linger allegedly

did not receive notice of “imminent” demolition, and refers to “return receipt” cards from 1998 that were addressed to O’Linger.However, the only actions which took place in 1 998 were t he hearings before the Better Housing Commission, and Ms. O’Ling er testified she appeared at those hearings, and/or was made aware of the orders t hrough her attorney. The record shows that copies of the orde rs w ere sent to the owner’s address of record, and that the BHC meetings were advertised in the local newspaper, and further that condemned signs were posted in the buildings. Defe

ndant’s Minutes re

flect that O’L

inger was pres

ent and partic

ipa ted in the hearings, that her concerns were expressed, and she was gra nted time to begin renovation. We find no merit in the plaintiff’s issue regarding notice, since Ms. O’L

inger actually attended the meetings of which she claims she had no notice.-3- Next, plaintiff argues that the City failed to follow its own Code regarding notice and the posting of signs. The City Code sections which are attached to plaintiff’s Brief demonstrate that the City did follow its code, as it posted condemnation sig

ns on the buildings , and mailed notice to Ms. O’Linger’s address as shown in the public records, p

ursuant to Ordinance sections 21-19 and 21-20. We find no evidence in the record to indicate that the City failed to follow its Code.

We conclude the Chancellor acted appropriately in this case, since the Order tha t was entered dismissing this

action came after he gave the plaintiff almost a year to obtain financing for the proposed renovations, and there was nothing

to indicate

that financing would be obtained in the near future. Moreover, two years had passed since plaintiff wa s first askedto appear before the BHC r egarding the condition of the property. P

laintiff was giv

en ample opportun

ity to rehab

ilitate th e property, and the Trial Court’s Order dismissing plaintiff’s action was warr anted on the facts. We affirm the judgment of the Trial Court and remand, wi th cost of

the appeal assessed to Brennco Incorporated.

_________________________ H ERSCHEL P ICKENS F RANKS , J.