### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 29, 2004 Se ssion DONALD M. TAYLOR v. CITY OF CHATTANOOGA, POLICE DEPARTMENT Direct Appeal from the Circuit Court for Ham ilton County No. 03-C-713 Hon. W. Neil Thomas, III., Circuit Judge

No. E2004-00701-COA-R3-CV - FILED JANUARY 13, 2005

Plaintiff brought a replevin action aga inst defendant to recover his motor vehicle which had bee n seized by the defe

ndant. The action

was initiated

in Sessions Court, but transferred by a greement of the parties to Circuit Court. The Trial Court enter ed Judgme nt on behalf of the plaintiff for $8,500.00 , having

found tha

t the def endant ha d sold plai

ntiff’s vehicle. We affir

m.
Tenn. R. App. P.3 Appe al as of Right ; Judgme nt of the Cir cuit Cour t Affirme d.

H ERSCHEL P ICK

ENS F RANKS , P.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. Kenneth O. Fritz, C ity A

ttorney ’s Offic e, Chatta

nooga, Tenness ee, for

Appellan t. John M. Higginson, Jr., Chattanooga, Tennessee, for Appellee

.

OPINION

At trial, the parties entered into a stipulation of fact as recited by the Tria l Court in its Memora

ndum and Judg

ment: Prior to the commencement of

the trial , the parties entered into the following stipulation: The Plaint

iff, Dona ld M. Tay

lor, was i

nvolved in

a moto r vehic le accident on October

7, 1997. The Plaintiff had been convicted of driving under the influence for which he paid a fine and served a sentenc e and for

which his l icense-2- was revoked . At the time of the accident, the City of

Chattanooga issued an order of seizure and forfeiture. An administrative h earin g was held in 1998, appealing the order of forfeiture, and

th e appeal was denied. A suit was then commenced in the Chancery Co ur t o f D av id so n C ou nt y, which de nied the Pl aintiff’ s right to obtain his vehicle, and on January

22, 2002 the Court of Appeals reversed the decision of the Chancery Court and set a side the f orfeitur e. When the

case wa s remand

ed to DavidsonCounty Chancery Court, the Court held it had no jurisdiction. A claim was thenfiled with

the State , and the S tate denied having the vehicle. A claim was then filed agains t the City

of Chattanooga for replevin, and the City answered by

stating it had sold the truck in September of 19 98. The Cit y defends based upon either a three-year or one-ye ar statute of limitations and because T.C.A. § 40-33-215 bars any action for an unlawful seizure unless bad faith can be shown. Uponre cita

tion of the stipulate d facts, the Tria

l Court set forth its d ecision a s follows:
Inthe decision of the Court of Appeals in Taylor v. Green , 2002 W.L. 75929 (Tenn. Ct. App. 2002), the Court held

that the f orfeitur e in this ca se was excessive and in vio lation of the Eighth Amendment to the United States Constitution and Article I, Section16 of

the Tennessee Constitution. Necessarily , by implication, Mr. Taylor’s civil rights were vi olate d. Alt hough the City arg ues that a civil rights action is barred by

the one-yea

r statute of limitations as found in T.C.A. § 28-3-104(a)(3), his cause of action for

such a violationdid not accrue until the decision of the Court of Appeals on January 22, 2002. This action was filed in the General Sessions Court of Hamilton County on Decembe r 20, 2002 and was, therefore, timely

. . . . The def endant r aises the se issues

on appea l:
1. Whether

the Tria l Court er red in fin ding the plaintiff /a ppel lee’s claim was not barred by t he applic able sta

tute of lim

itations?
2. Whethe rthe trial court had subject matter jur isdiction to award the pla int iff /a ppe lle e a Jud gm en t a ga ins t th e d ef

en da nt/ ap pe lla nt? Statutory construction and applica tion to undisputed facts are questions of law that are subject to de novo appella te revie w upon the

record with no presumption of correctness of the trial court’s conclusions of law. Beare Co. v. T ennessee Dept. of Revenue , 858 S.W.2d 906, 907 (Tenn.1 993); Cape Fear Paging Co. v. Huddleston, 937 S.W.2d 787, 788 (Tenn. 1996).

Inthis case, the record

demo nstrates that the defendant sold the vehicle before plaintiff had exhausted his appeals of the seizure. It is well settled that a cause of a ction does not “accrue”until a judicial remedy is ava ilable. Wyatt v. A-Best, Co., Inc., 910 S.W.2d 851, 855 (Tenn. 19 95); Sutton v. B arnes, 78 S.W.3d 908 , 913 (Te nn. Ct. App . 2002). A judicial re me dy i s considered

“available” when (1) a defe ndant breaches a legally

recognized

duty owed to a plaintiff-3-

and (2) the breach c ause s the plaintiff legally cognizable damage. Id; see also , Potts v. Celotex Corp ., 796 S.W.2d 678, 681 (Tenn. 1990). The Court of Appeals in this case ruled that the seizure was an excessive fine under the particular facts of this case. See also Hawks v. Greene , No. M1999- 02785-COA-R3-CV, 2001 WL 1613889 (Tenn. Ct. Ap p .). The plaintiff followed the procedural route available to him after the defendant seized his v ehicle. The plain tiff timel y f iled his action, and we affirm the Judgment of the Trial Court on this issue.

Fi na ll y, defendant argues the Circuit Court was without subject matter jurisdiction, butwe note that defendant filed a Motion to Dismiss in the Sessions Co urt initia lly, which sta

tes in pertinent part: “Circuit Court has exclusive jurisdict ion to hear this matter pursuant to Tenn. Code Ann. § 29-20-305(a).” Unquestionably , the Circui t Court had jurisdiction to adjudicate an action for return of personal property

. See Tenn. Cod e Ann. § 29-30-101 and 102. Appellant cites authorities defining subject matter jurisdiction, but misconstrues the concept. Def endant’s argument ignores the fact that the Court of Appeals had adjudicated the constitutional violation prior to the fi l ing of this action and that Court’s remand was not to determine whether the violation had occurred, but to recover the proper ty lost as a result of the seizure. This issue is without merit. Plaintiff has requ ested da mages f or frivo lous appe al, and th ere is compelling and well-settled

caselaw adverse to appellant’s positions. The jurisdictional argument is based on the erroneous statemen

t o f Tenne sse e jur

ispru denc e and had n o poss ibility

of su cce ss on a

ppea l. We conclude the case is appropriate to award damage for frivolous appeal, and remand to the Trial Court to assess damages pursuant to Tenn. Code Ann. § 27-1-122 for the plaintiff. The cost of the appeal is assessed to defendant/appe llant.

______________________________ H ERSCHEL P ICKENS F RANKS , P.J.