The prospects of relief for Thomas and Carol Gaddy shrank with the issuance of a final order in their property rights case in Dunlap, Tenn.
Circuit court judge Thomas Graham, acting for a chancery court jurist who recused himself, says the couple will go to jail after Jan. 1 if they don’t comply with a city order and previous court rulings that they allow an inspection of their house.
By David Tulis / Noogarado 1240 AM 101.1 FM
Judge Graham orders the couple to be incarcerated “and to remain incarcerated until such time as defendants allow the inspection by the city and its representatives.”
He denies a motion to have the case dismissed, as well as other pleadings.
The next step is for Stephen Greer, the city attorney, to arrange for an inspection by the code enforcement officer of the city, Bill Dennis, and to give the Gaddys a 15-day notice. The inspection should be no sooner than Jan. 1.
“It further appeared to the court that the defendants have been ordered to allow the plaintiff and its representatives to inspect the residence to determine the condition of the residence under ordinance No. 88 of the city of Dunlap, but that the defendants have refused to allow the city and its representatives to inspect their residence, for which the defendants have been previously held in contempt of court. It further appeared to the court that the city is entitled to make such inspection under the terms and conditions as set forth hereafter, but any such inspection should be after December.”
Criminal contempt puts a person in jail punitively for a given span of time. In civil contempt of the kind envisioned in the Gaddy case, the person punished has the keys to the jail cell. By complying with a judicial order, he unlocks the door and walks free.
Both Mr. Gaddy and his wife would be jailed, as she was already for two days for spouting off at Judge Graham.
Repeated efforts to reach Mr. Greer for an interview have not been successful.
Abuse of process
The Gaddys face an abuse of process by Mayor Land and attorney Greer, and the cooperation thus far of Judge Graham, who has nursed the case along though he has no subject matter jurisdiction.
The city charter requires all such cases be filed in the town corporation court. The charter grants the city power to establish a city court “with jurisdiction to try all offenses for violation of the city ordinances and bylaws.” The judge “shall have jurisdiction in and over all cases for the violation of and all cases arising under the laws and ordinances of the city” (Dunlap city charter, article 16, section 1).
Any ruling made by a judge who has no subject matter jurisdiction is not just voidable, but void, null and of no effect. Many cases show this to be a legal truism.
Subject matter jurisdiction implicates a court’s power to adjudicate a particular case or controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). In the absence of subject matter jurisdiction, a court cannot enter a valid, enforceable order. Brown v. Brown, 281 S.W.2d 492, 497 (Tenn. 1955). Therefore, subject matter jurisdiction may be raised at any time by the parties or by the appellate court, sua sponte on appeal. County of Shelby v. City of Memphis, 365 S.W.2d 291 (Tenn. 1963); Graham v. Graham, No. E2008-00180-COAR3-CV, 2009 WL 167071, at *6 (Tenn. Ct. App. Jan. 26, 2009). Accordingly, when subject matter jurisdiction is questioned, the court must first determine the nature of the case and then ascertain whether the Tennessee Constitution, the Tennessee General Assembly, or the common law have conferred on it the power to adjudicate the case before it. Staats v. McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006). In other words, Judge Graham cannot get around the assertion that he lacks subject matter jurisdiction.
Why not get a permit?
The fact that this case is in the wrong court makes every other point of discussion useless, moot and irrelevant.
But the human cost of the case and the concerns facing the defendants is part of the story, and other points bear consideration.
Mrs. Gaddy, 69, says she was up all night Christmas morning writing so much about her work of self-defense that her hand hurt.
Pressed as to why she simply does not go to the city and get a permit, “Because we already did. We fulfilled that when we started our project. We have multiple affidavits in this file, filed in this case” of necessary permits. “The building inspector that was in place in Dunlap, that’s before the mayor changed all the language before he went in as mayor and calling the building inspector a codes enforcer — but it was a really nice guy.”
In 1997 when they bought the house the inspector “told us that if we were remodeling under our existing roof in our square footage this house is grandfathered under, that we did not need a building permit to remodel.”
He said she had to do two things. Follow FEMA guidelines in raising the floor level of the house, and that she must get a permit and final inspection from the Sequatchie Valley Electrical Cooperative. She didn’t get a paper, but paid the fee, Mrs. Gaddy says. That official who did inspection in 1999 is retired but signed an affidavit in the case. A son, who also did an inspection, is deceased.
“It sounds like a lot years ago you have to have three, but that’s just the way it was, and we fully cooperated with the instructions of the Dunlap building inspector and the Sequatchie Valley” electrical coop. “Everything we were told to comply with we complied with.”
In a confrontation with the mayor, Mrs. Gaddy said, her husband asked, “‘Is this about a permit?” And the mayor said, ‘No, this is not. We wouldn’t give you a permit. I deem this house unliveable.’ Then, later, the mayor puts out these lies to the media saying we did not participate in our process, they did not get a permit.”
Could not Mrs. Gaddy moot the whole case by simply going to get a permit? The inspector would harass her and nit-pick, says carpenter John Ballinger of Strawberry Plains, Tenn., near Knoxville. But she would get through it and put her ordeal behind her. The Gaddys are “throwin’ a rock in a hornet’s nest” to not get a permit, he warns.
Unreasonable fears of officials seen
She says any inspection would end in a condemnation of her house.
Mr. Ballinger disputes her fears as unreasonable. He says no house as solid looking and sound looking as hers could be condemned. If it were, and that she could use contradicting expert testimony to contest any condemnation based on alleged deficiencies in work and improvements. And if it looked somehow that officials were going to bulldoze it as a nuisance, she could board it up and at least save the structure. But he says he cannot conceive of such a fate for a good-looking structure, his comments based on my interior photos of the house.
“Even if the Gaddys got a permit they’d bully them to show them who’s boss,” Mr. Ballinger said. “People’ve got their wires crossed. If that house is in as good a shape as that picture showed it is, there’s no way under the sun they could get a demolishing order of that property.”
Mrs. Gaddy sees an ugly plot. She says the mayor wants “to steal the land through the power of eminent domain. I’ve been told by several people the grandfather laws in this country are pretty strong laws and are still in place.” She says she is certain that if the house is inspected the officials get seek a court order to have it condemned. “We know that’s their strategy. We know that’s where they’re going.”
These points are of interest only up to a point. The case is in the wrong court, and Dunlap city government maintain their nearly two-year-old action in chancery when the city charter is unmistakeable that it needs to be in city court.
Our story: Property rights vs. city