10/02/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 4, 2019
ABRAHAM ASLEY AUGUSTIN v. BRADLEY COUNTY SHERIFF’S
OFFICE ET AL
Appeal from the Circuit Court for Bradley County
No. V-16-082 Lawrence Howard Puckett, Judge
___________________________________
No. E2018-00281-COA-R3-CV
___________________________________
Appellant appeals from the dismissal of his complaint seeking damages for the improper
forfeiture of his property seized incident to an arrest. The trial court dismissed the action
on the basis of lack of subject matter jurisdiction. We affirm the trial court’s dismissal of
Appellant’s claim for the return of his seized property, as the trial court lacked subject
matter jurisdiction to adjudicate that claim. We reverse, however, the dismissal of
Appellant’s claim for damages related to a bad faith seizure under Tennessee Code
Annotated section 40-33-215.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part; Reversed in Part; and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and ANDY D. BENNETT, JJ., joined.
Abraham A. Augustin, Coleman, Florida, Pro se.
Thomas E. LeQuire, Chattanooga, Tennessee, for the appellee, Bradley County Sheriff’s
Office.
OPINION
BACKGROUND
On February 9, 2016, Petitioner/Appellant Abraham Asley Augustin (“Appellant”)
filed an action in the Bradley County Circuit Court (“the trial court”) seeking a return of
“property that [was] forfeited without Due Process” against the Bradley County Sheriff’s
Department (“the Bradley County Sheriff’s Department” or “Appellee”). Because this
case was dismissed on a motion to dismiss, we take the facts from Appellant’s pleadings
and the documents attached thereto. The complaint alleged that Appellant was arrested on
December 3, 2009 by the Bradley County Sheriff’s Department on a warrant for
kidnapping and robbery. Incident to this arrest in Bradley County, Appellant alleged that
both his vehicle and cash were seized. At the time, Appellant signed a notice of seizure
form indicating that cash and drugs had been seized. Appellant was then transferred to
Hamilton County, where the charges were pending. He was subsequently released on
bond.
On December 9, 2009, Appellant was arrested a second time by the Bradley
County Sheriff’s Department on federal kidnapping charges. Incident to this arrest,
Appellant alleged that additional cash and a U-Haul were seized by the Bradley County
Sheriff’s Department. A notice of forfeiture regarding the seized cash, as well as seized
narcotics, indicates that a notice was presented to Appellant, but he refused to sign. A
superseding indictment was later issued adding a drug conspiracy to Appellant’s
kidnapping charge. Although the U-Haul was later released to another party allegedly
without Appellant’s consent, Appellant alleged the cash was never returned. Appellant
remained incarcerated in Bradley County until the resolution of his federal charges,
approximately March 2011. According to Appellant, he was acquitted of the drug
conspiracy charge but convicted of kidnapping and “murder-for-hire offenses.” Appellant
has therefore been incarcerated in federal prison throughout the pendency of this case.
Appellant was never charged for any crimes in Bradley County.
In 2012, Appellant filed his first action for return of the seized property in the trial
court. The action was eventually dismissed for lack of subject matter jurisdiction and
expiration of the statute of limitations.
Following the dismissal of his first action, Appellant engaged in federal litigation
concerning the seized property. In the course of the federal litigation, on November 12,
2015, Appellant alleged that he finally received information regarding the seizure and
forfeiture of his property. Specifically, Appellant alleged that he learned that although the
Bradley County Sheriff’s Department obtained forfeiture warrants and later forfeiture
orders regarding Appellant’s “property and cash,” documents relative to the seizure were
not properly mailed to Appellant as required by statute.1 According to Appellant’s
complaint and attached documents, the warrants and orders were in fact mailed to
addresses in North Carolina, despite the fact that Appellant resided at the Bradley County
jail at all relevant times.2 Thus, Appellant alleged that the Bradley County Sheriff’s
Department knowingly and intentionally mailed the notices to an incorrect address,
1
The record contains two December 15, 2009 forfeiture warrants and two May 5, 2010 orders of
forfeiture issued by the Tennessee Department of Safety: a warrant and corresponding order concerning
$847.00 in cash seized on December 3, 2009, and a warrant and corresponding order concerning
$9,850.00 in cash seized on December 9, 2009. The record also contains an April 15, 2011 order of
forfeiture concerning Appellant’s vehicle issued by the Tennessee Department of Safety. All of the orders
of forfeiture stated that Appellant could obtain judicial review by filing a petition in the Davidson County
Chancery Court within sixty days of the entry of the order.
2
Appellant also alleged that one of the two addresses used did not exist.
-2-
thereby depriving Appellant of his ability to contest the forfeiture of the property at issue.
Appellant further alleged that this action violated his constitutional rights and that he was
entitled to “the monetary equivalence” of the seized property and cash, as well as
attorney’s fees.
On August 1, 2016, Appellant filed a motion for default judgment against
Appellee. Appellant thereafter filed additional motions to ensure his participation in the
case despite his incarceration and to be awarded punitive damages. On January 17, 2017,
the trial court denied the motion for default judgment on the basis that Appellee had not
been served.
On February 13, 2017, Appellant filed a motion to amend his complaint to add
additional individual defendants and to more fully set forth his claims for relief. In the
corresponding pleading styled as a “Statement of Claim,” Appellant sought $316,840.00
as the monetary value of the items seized, $2,000,000.00 in compensatory damages for
the items seized that had no pecuniary value, and $3,000,000.00 in punitive damages. The
statement of claim also names additional parties as individual defendants.3 Also on the
same day, Appellant filed a notice of removal of his action to federal court. On March 10,
2017, the United States District Court for the Eastern District of Tennessee dismissed the
federal action as legally frivolous, noting that federal law did not support removal by the
plaintiff.
On August 14, 2017, the Bradley County Sheriff’s Department filed a motion to
dismiss Appellant’s complaint, arguing inter alia, that the issues raised were barred by
the doctrine of res judicata and/or the applicable statute of limitations,4 and that the trial
court lacked subject matter jurisdiction to adjudicate Appellant’s claim. With regard to
jurisdiction, Appellee contended that Appellant was required to exhaust his
administrative remedies with the Department of Safety pursuant to Tennessee Code
Annotated section 40-33-201 et seq., and that, in any event, any petition for judicial
3
The trial court never made any specific ruling as to Appellant’s amended complaint. At the time
it was filed, no responsive pleading had been filed by Appellee. As such, Appellant was free to amend his
complaint as a matter of course. See Tenn. R. Civ. P. 15.01. Some courts have held, however, that where a
plaintiff is entitled to file an amended complaint but instead seeks leave of court to do so, the Court of
Appeals cannot correct that choice on appeal. See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3
(Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an
amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL
3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage
of its right to amend without leave of the court, this Court cannot correct that choice on appeal). In this
case, it appears that Appellee is treating the amended complaint as the operative complaint for purposes
of this appeal, as Appellee has indicated no objection to the amendment and has styled its brief as if the
amendment naming additional parties was operative. We will therefore also consider the amended
complaint as operative for purposes of this appeal.
4
Specifically, the Bradley County Sheriff’s Department submitted that applicable time periods
relevant to Rule 59.04 motions to alter or amend, Rule 60.02 motions to set aside a final judgment, and
actions for violations of civil rights had all expired.
-3-
review should have been filed in Davidson County Chancery Court pursuant to the
Uniform Administrative Procedures Act. On December 20, 2017, the trial court granted
Appellee’s motion to dismiss after concluding that is lacked subject matter jurisdiction to
address the issues raised in Appellant’s complaint. Appellant thereafter appealed to this
Court.
Discussion
In this case, the trial court dismissed Appellant’s case solely on the basis that it
lacked subject matter jurisdiction to adjudicate the claims contained therein. Thus, as we
perceive it, a single issue is raised in this appeal: whether the trial court erred in
dismissing Appellant’s claims for lack of subject matter jurisdiction. According to the
Tennessee Supreme Court,
The concept of subject matter jurisdiction involves a court’s lawful
authority to adjudicate a controversy brought before it. See Meighan v.
U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996);
Standard Sur. & Casualty Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d
436, 440 (1943). Subject matter jurisdiction involves the nature of the cause
of action and the relief sought, see Landers v. Jones, 872 S.W.2d 674, 675
(Tenn. 1994), and can only be conferred on a court by constitutional or
legislative act. See Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977);
Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 734 (Tenn.Ct.App.1989).
Since a determination of whether subject matter jurisdiction exists is a
question of law, our standard of review is de novo, without a presumption
of correctness. See Nelson v. Wal–Mart Stores, Inc., 8 S.W.3d 625, 628
(Tenn. 1999).
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). “The lack of subject
matter jurisdiction is so fundamental that it requires dismissal whenever it is raised and
demonstrated.” First Am. Trust Co. v. Franklin–Murray Dev. Co., L.P., 59 S.W.3d 135,
141 (Tenn. Ct. App. 2001) (citations omitted) (noting that an appellate court cannot reach
the merits of an appeal upon a finding that the trial court lacked subject matter
jurisdiction).
This case was resolved on a motion to dismiss. In considering a motion to dismiss,
courts “‘construe the complaint liberally, presuming all factual allegations to be true and
giving the plaintiff the benefit of all reasonable inferences.’” Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (quoting Tigg v. Pirelli
Tire Corp., 232 S.W.3d 28, 31–32 (Tenn. 2007)). A motion to dismiss should be granted
only where the plaintiff “‘can prove no set of facts in support of the claim that would
entitle the plaintiff to relief.’” Id. (quoting Crews v. Buckman Labs. Int’l, Inc., 78
S.W.3d 852, 857 (Tenn. 2002)). Our review of the trial court’s decision to grant
Appellee’s motion to dismiss is de novo with no presumption of correctness. Id.
-4-
Before addressing the merits of the question on appeal, however, we must first
address Appellant’s pro se status and the state of his brief. As we have previously
explained:
Parties who decide to represent themselves are entitled to equal treatment
by the court. Murray v. Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App.
2014). The court should take into account that many pro se litigants have no
legal training and little familiarity with the judicial system. Id. However,
the court must also be mindful of the boundary between fairness to the pro
se litigant and unfairness to the pro se litigant’s adversary. Id. While the
court should give pro se litigants who are untrained in the law a certain
amount of leeway in drafting their pleadings and briefs, it must not excuse
pro se litigants from complying with the same substantive and procedural
rules that represented parties are expected to observe. Hessmer v. Hessmer,
138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
Lacy v. Mitchell, 541 S.W.3d 55, 59 (Tenn. Ct. App. 2016). We therefore keep these
principles in mind in considering Appellant’s compliance with the briefing requirements
applicable to this appeal.
Rule 27 of the Tennessee Rules of Appellate Procedure provides specific rules
governing briefs filed to this Court. In particular, Rule 27(a) mandates that the briefs filed
by appellants in this Court must contain (1) a table of contents; (2) a table of authorities;
(3) a statement of the issues presented for review; (4) a statement of the case; (5) a
statement of the facts; (6) an argument section; and (7) a conclusion. Tenn. R. App. P.
27(a). With regard to the argument section, Rule 27(a) further provides that the argument
contain:
(A) the contentions of the appellant with respect to the issues presented,
and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references
to the record (which may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable standard of review
(which may appear in the discussion of the issue or under a separate
heading placed before the discussion of the issues) . . . .
Tenn. R. App. P. 27(a)(7); see also R. Tenn. Ct. App. 6(a) (requiring specific references
to the record in the argument section of an appellant’s brief). This Court has repeatedly
held that failure to substantially comply with Rule 27 will result in a waiver of all issues
on appeal. See, e.g., Masserano v. Masserano, No. W2018-01592-COA-R3-CV, 2019
WL 2207476, at *4 (Tenn. Ct. App. May 22, 2019); Reece v. Reece, No. E2015-01610-
COA-R3-CV, 2016 WL 4007847, at *2 (Tenn. Ct. App. July 22, 2016) (“A party’s
failure to comply with the appellate brief requirements set forth in Tenn. R. App. P. 27
can have serious consequences” up to and including waiver of all issues on appeal.).
-5-
Moreover, “[c]ourts have routinely held that the failure to make appropriate references to
the record and to cite relevant authority in the argument section of an appellate brief as
required by Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure constitutes a
waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000).
A review of Appellant’s initial brief indicates that it does not meet all of Rule
27(a)’s requirements. For example, Appellant’s brief does not contain a table of contents
or a table of authorities. Likewise, it lacks a statement of the issues presented for review,
an integral portion of an appellate brief as issues that are not properly designated are
generally waived even when argued in the body of the brief. See Childress v. Union
Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“We consider an issue waived
where it is argued in the brief but not designated as an issue.”).
Finally, we note that Appellant’s argument on the dispositive issue in this case—
the question of the trial court’s subject matter jurisdiction—is largely deficient. Here,
Appellant spends considerable effort in his brief on issues of fraudulent concealment,
newly discovered evidence, due process, service of process, and res judicata. Many of
these arguments are properly supported by relevant caselaw. The only argument
responsive to the trial court’s ruling that it lacked subject matter jurisdiction is as follows:
IV. THE BRADLEY COUNTY CIRCUIT POSSESSES SUBJECT
MATTER JURISDICTION OVER CLAIM 1 AND 2 AND THEREFORE
ERRED IN ITS DISMISSAL AND DEPRIVED APPELLANT DUE
PROCESS WHEN IT DENIED HIM DEFAULT JUDGMENT ON
JANUARY 17, 2017.
When Appellant informed the Court at the dismissal hearing on
December 12, 2017 that service was made on February 16, 2016 and
therefore the denial of default judgment on January 17, 2017 was
erroneous, the Judge continuously remarked that he lacked jurisdiction. The
record shows that the Summons was issued on February 9, 2015 to the
process server and defendants’ employer, the BCSO, which made service
on Lt. Bradford on- February 16, 2016.
By the time default judgment was sought on August 14 2016, the
defendants had almost 5 months and never responded. On January 24, 2017
the record became clear that service was indeed made on February 15, 2015
and the Court erred in its denial of default judgment. Appellant asks that the
case be remanded back to the Circuit Court and the Court be ordered to find
that it does possess jurisdiction and grant Appellant’s default judgment.
Clearly, this argument contains no references to the record and no citations to relevant
authority as required by Rule 27. See Tenn. R. App. P. 27(a)(7). Moreover, Appellant’s
argument appears to conflate subject matter jurisdiction with personal jurisdiction. As
-6-
such, Appellant’s initial brief contains no properly supported argument responsive to the
trial court’s dispositive ruling in this case. This failure would generally result in a waiver
on appeal. See Bean, 40 S.W.3d at 55–56.
We concede that Appellant’s reply brief does in some instances make a better
effort to address this particular issue.5 Reply briefs, however, are generally not a vehicle
to correct deficiencies in initial briefs. Fichtel v. Fichtel, No. M2018-01634-COA-R3-
CV, 2019 WL 3027010, at *19 (Tenn. Ct. App. July 10, 2019) (citing Kanski v. Kanski,
No. M2017-01913-COA-R3-CV, 2018 WL 5435402, at *6 (Tenn. Ct. App. Oct. 29,
2018); see also Ingram v. Ingram, No. W2017-00640-COA-R3-CV, 2018 WL 2749633,
at *11 n.4 (Tenn. Ct. App. June 7, 2018)). For good cause, however, this Court may
suspend the requirements of the rules regarding the form and contents of appellate briefs.
See Bean, 40 S.W.3d at 54 (citing Tenn. R. App. P. 2). Given that this case involves only
a single legal issue, we will exercise our discretion to consider the merits of this appeal
notwithstanding the serious deficiencies in Appellant’s briefing.
As previously discussed, the basis of the dismissal of Appellant’s claims rested on
the trial court’s conclusion that it lacked subject matter jurisdiction. Although the trial
court made no additional findings as to its ruling, we presume that the trial court credited
the argument advanced by Appellee both in the trial court and on appeal: that the proper
forum for Appellant’s requests was the Tennessee Department of Safety. With respect to
some of the claims raised by Appellant, we agree.
In order to reach this result, we must first consider the statutory scheme applicable
to the forfeiture of Appellant’s vehicle and cash. Pursuant to Tennessee Code Annotated
section 53-11-451(a), certain property is subject to forfeiture, including controlled
substances, vehicles used or intended for use to transport or facilitating the transportation
of controlled substances, and all “moneys . . . used, or intended to be used, to facilitate
any violation of the Tennessee Drug Control Act . . . .” Tenn. Code Ann. § 53-11-451(a).
Property seized under section 53-11-451(a) is subject to the forfeiture scheme outlined in
Tennessee Code Annotated section 40-33-201, et seq. (“All personal property, including
conveyances, subject to forfeiture under . . . § 53-11-451 . . . shall be seized and forfeited
in accordance with the procedure set out in this part.”). The Tennessee Supreme Court
has described the procedure applicable in this situation “as following ‘an administrative
model for the forfeiture of property.’” State v. Sprunger, 458 S.W.3d 482, 495 (Tenn.
2015) (quoting Helms v. Tennessee Dep’t of Safety, 987 S.W.2d 545, 547 (Tenn. 1999)).
According to the Tennessee Supreme Court, the procedures to which the state
must adhere are as follows:
Under [s]ection 40-33-203, the seizing officer may seize the subject
property prior to the issuance of a forfeiture warrant. Tenn. Code Ann. §
5
Appellant essentially responds to the caselaw cited by Appellee. Again, this section of his
argument contains no references to the record.
-7-
40-33-203 (2012). To notify the affected person of the seizure, the seizing
officer must “prepare a receipt titled a ‘Notice of Seizure’” and must
“provide the person found in possession of the property” the receipt. Tenn.
Code Ann. § 40-33-203(a), (c) (2012). Among other things, the Notice of
Seizure must include “[t]he procedure by which recovery of the property
may be sought, including any time periods during which a claim for
recovery must be submitted.” Tenn. Code Ann. § 40-33[-]203(c)(5) (2012).
After the initial seizure of the property, no further action may be
taken until the appropriate court issues a forfeiture warrant. Tenn. Code
Ann. § 40-33-204. The forfeiture warrant authorizes the institution of
forfeiture proceedings. Tenn. Code Ann. § 40-33-204(a). The officer who
made the seizure must apply for the forfeiture warrant “within five (5)
working days following the property seizure.” Tenn. Code Ann. § 40-33-
204(b)(2012). He or she does so “by filing a sworn affidavit.” Id. The
officer’s sworn affidavit must contain specific information detailed in the
statute, including the “legal and factual basis making the property subject to
forfeiture.” Tenn. Code Ann. § 40-33-204(b)(1).
The court considering the seizing officer’s application for a
forfeiture warrant must conduct an ex parte hearing on the application.
Tenn. Code Ann. § 40-33-204(b). The statute mandates that the ex parte
hearing “shall be recorded” and specifies: “It is the duty of the court to
maintain the recording.” Id. The court may issue the forfeiture warrant only
if it finds the seizing officer offered proof that establishes probable cause to
believe that the property is subject to forfeiture, is owned by one whose
interest is described in public records, and that the property owner’s interest
is subject to forfeiture. Tenn. Code Ann. § 40-33-204(c)(1).
If the forfeiture court finds probable cause and issues the forfeiture
warrant, it must “have attached to [the warrant] a copy of the notice of
seizure.” Tenn. Code Ann. § 40-33[-]204(b). The forfeiture court must also
“retain the affidavit relied upon in support of the warrant.” Tenn. Code
Ann. § 40-33-204(g). The statute states: “By signing and issuing the
forfeiture warrant, the judge is affirming that the required finding of
probable cause necessary to issue the warrant has been made.” Id.
(emphasis added).
Within seven working days of the issuance of the forfeiture warrant,
the seizing officer must send the warrant, the notice of seizure, and a copy
of the seizing officer’s affidavit to the applicable agency. Id. In this way,
the agency becomes the forum for the forfeiture proceedings. The agency’s
receipt of the documents from the seizing officer triggers its responsibility
to inform any other potential owners of the seized property of the issuance
-8-
of the forfeiture warrant. Tenn. Code Ann. § 40-33-204(g). The agency then
considers anew the basis for the forfeiture; after considering the notice of
seizure and forfeiture warrant “and after interviewing any witnesses,” the
agency must “release the property if there is no legal and factual basis for
forfeiture.” Id.
If a claimant of the seized property wishes to contest the forfeiture,
within thirty days of being notified by the applicable agency of the issuance
of the forfeiture warrant, the property owner must file a written claim with
the applicable agency. Tenn. Code Ann. § 40-33-206 (2012). The written
claim must request a hearing and state the person’s interest in the seized
property, and the claimant must file any applicable bond. Tenn. Code Ann.
§§ 40-33[-]206(a), (b)(1), and -208 (2012). The claimant’s compliance with
the required procedures then entitles him or her to a contested hearing
before the agency under the Uniform Administrative Procedures Act. Tenn.
Code Ann. § 40-33-209(d) (2012). Within thirty days after the filing of the
written claim and any applicable bond, the agency must establish a hearing
date and set the case on its docket. See Tenn. Code Ann. § 40-33-207(a)
(2012).
At the contested administrative hearing, the State must prove by a
preponderance of the evidence that the property at issue is subject to
forfeiture. Tenn. Code Ann. § 40-33-210(a) (2012); see also Helms, 987
S.W.2d at 547. The statutes detail what the State is required to prove at the
hearing:
(a) In order to forfeit any property or any person’s interest in the
property . . . , the state shall have the burden to prove by a
preponderance of evidence that:
(1) The seized property was of a nature making its possession
illegal or was used in a manner making it subject to forfeiture
under the sections set out in this subsection (a); and
(2) The owner or co-owner of the property knew that the
property was of a nature making its possession illegal or was
being used in a manner making it subject to forfeiture, or, in
the case of a secured party, that the standards set out in
subsection (f) are met.
(b)(1) Failure to carry the burden of proof shall operate as a bar to
any forfeiture and the property shall be immediately returned to the
claimant.
-9-
Tenn. Code Ann. § 40-33-210 (2012). Any party aggrieved by the agency’s
decision then has the right to seek judicial review of the agency’s decision
by filing a written notice in either the Circuit or Chancery Court of
Davidson County. Tenn. Code Ann. § 40-33-213(a), (c) (2012). As noted in
Helms, “[j]udicial review is conducted without a jury and is limited to the
administrative record, except to the extent that Tenn. Code Ann. §§ 4-5-
322(e) and -322(g) permit the introduction of additional evidence.” Helms,
987 S.W.2d at 547.
Sprunger, 458 S.W.3d at 495–98 (footnotes omitted).
As noted above, the Tennessee Supreme Court has therefore held that where this
scheme is applicable, a property owner wishing to contest a forfeiture thereunder “must
file a written claim with the applicable agency.” Id. at 497 (citing Tenn. Code Ann. § 40-
33-206). The applicable agency for property seized under the Drug Control Act, section
53-11-451, is the Tennessee Department of Safety. Helms, 987 S.W.2d at 547 (“Persons
seeking to contest forfeiture of personal property under the Drug Control Act must file a
timely claim with the Commissioner of Safety.”); see also Tenn. Code Ann. § 53-11-201
(referencing the department of safety as the agency charged with administering
forfeitures under that chapter, i.e., the Drug Control Act, and noting that a property owner
may contest the forfeiture by “fil[ing] with the commissioner at Nashville a claim in
writing, requesting a hearing and stating the person’s interest in the articles seized”).
Where the Department of Safety is the proper agency to administer a forfeiture, the
Tennessee Court of Criminal Appeals has held that the Department of Safety has “the
exclusive jurisdiction to initially determine whether property seized incident to a
violation of the Drug Control Act should be forfeited or returned to the lawful claimant,
and has provided for judicial review of the Commissioner’s ruling, if such is desired by
an aggrieved party.” State v. Moses, 584 S.W.2d 825, 826–27 (Tenn. Crim. App. 1979).
As such, the court concluded that this decision to vest jurisdiction in the administrative
agency was “to the exclusion of the courts,” thereby depriving courts of subject matter
jurisdiction to consider petitions involving return of property allegedly improperly
forfeited under section 40-33-201 et seq.6 Id. at 827. Indeed, section 53-11-451(d) makes
6
We note that this Court, following Moses, previously dismissed a case on the basis of lack of
jurisdiction in Harmon v. Jones, No. E2010-02500-COA-R3-CV, 2012 WL 3291792, at *1 (Tenn. Ct.
App. Aug. 14, 2012) (holding for forfeitures under the Drug Control Act, exclusive jurisdiction to contest
a forfeiture was with the Tennessee Department of Safety). The Tennessee Supreme Court in Sprunger,
however, took issue with the holding in Harmon, noting that it and other cases “trend[ed] in the wrong
direction, as they incline away from strict construction of the forfeiture statutes.” Sprunger, 458 S.W.3d
at 499. Specifically, our supreme court disagreed with this Court’s decision to “excuse[] the State’s
failure to comply with the procedural requirements for civil forfeiture” as mere technical violations. Id.
Unfortunately, the Sprunger Court did not provide guidance as to its specific grievance with
Harmon. To be sure, the Tennessee Supreme Court, in Sprunger or otherwise, has never overruled the
holding in Moses that where the Tennessee Department of Safety has jurisdiction over a forfeiture, it
retains exclusive jurisdiction over that issue to the exclusion of the courts. Moreover, although the
- 10 -
clear that property “taken or detained under this section shall not be subject to
replevin[.]”
Appellee contends that the same result is required in this case. With regard to
Appellant’s vehicle and cash, we agree. Here, the documents in the record indicate that
Appellant’s vehicle and cash were seized under the Drug Control Act. In particular, the
record contains forfeiture orders regarding the cash and vehicle that all specifically state
that the property was confiscated pursuant to section 53-11-451 and that generally
indicate that the corresponding administrative scheme contained in section 40-33-206 is
the proper method of contesting the forfeiture. Likewise, the record also contains two
notice of seizure documents concerning the seized cash that specify the method in which
to contest forfeiture of the property—one of these notices appears to have been signed by
Appellant at the time of his first arrest on December 3, 2009.
Appellant does not agree that the proper forum for his claim was the Tennessee
Department of Safety. Instead, he contends that the section 40-33-206 procedure was not
holding in Harmon did not rest on this fact, the petitioners in Harmon did allege specific violations of the
applicable forfeiture statutes, including the failure to provide receipts to the individuals in possession of
the property, as required by Tennessee Code Annotated section 53-11-201(a)(1)(A). Thus, the Sprunger
Court’s admonishment in favor of “strict construction of the forfeiture statutes” makes sense in this
context. The other cases repudiated by the Sprunger Court also involved violations of the express
statutory procedures applicable to forfeitures. See Garrett v. State, Dep’t of Safety, 717 S.W.2d 290, 291
(Tenn. 1986) (reversing the Court of Appeals and holding that a failure to hold a hearing within the time
provided by statute was a harmless error); Watson v. Tennessee Dep’t of Safety, 361 S.W.3d 549, 556
(Tenn. Ct. App. 2011) (involving allegations that the seizing officers did not comply with requirements to
obtain forfeiture warrants and prematurely sold the property prior to the forfeiture hearing in admitted
violation of a statute).
In this case, however, Appellant does not allege that any specific procedural requirements
contained in section 40-33-201 et seq. or section 53-11-201 were violated. Rather, he argues that
Appellee’s efforts to notify him of the proceedings did not comport with due process. Importantly, the
Tennessee Supreme Court did not expressly abrogate other cases in which the jurisdiction of the
Department of Safety, and the corresponding procedure for obtaining judicial review, was confirmed
despite arguments concerning due process. See Bryant v. Greene, No. 01A01-9509-CH-00398, 1997 WL
170340, at *1 (Tenn. Ct. App. Apr. 11, 1997) (holding that the procedure for judicial review under section
40-33-213 was applicable notwithstanding the property owner’s argument that he did not receive
sufficient notice of the forfeiture order). Thus, although “the proceeding is conditioned upon compliance
with the conditions prescribed,” Appellant simply does not allege that Appellee failed to comply with any
particular statutory conditions. Sprunger, 458 S.W.3d at 499 (citing Wells v. McCanless, 184 Tenn. 293,
297, 198 S.W.2d 641, 643 (Tenn. 1947) (“Forfeiture by original seizure depends upon[] the statute.”)). As
such, Moses remains good law in this situation, and we must follow it. See Tenn. R. Sup. Ct. 4(G)(2)
(“Opinions reported in the official reporter . . . shall be considered controlling authority for all purposes
unless and until such opinion is reversed or modified by a court of competent jurisdiction.”); see also
Skernivitz v. State, No. M2016-00586-COA-R3-CV, 2017 WL 465329, at *3 (Tenn. Ct. App. Feb. 3,
2017) (citing Orr v. Tennessee Dep’t of Safety, No. M2012-02711-COA-R3CV, 2014 WL 468230, at *3
(Tenn. Ct. App. Feb. 4, 2014)) ((applying the sixty-day time limit applicable to petitions for judicial
review under section 40-33-213 despite an allegation that the seizing officer did not comply with
applicable statutes).
- 11 -
applicable because he was never charged with a drug crime in Bradley County and was
never convicted of a drug offense, as he was acquitted of the federal drug conspiracy
charge. Thus, Appellant contends that the Drug Control Act and the forfeiture authorized
by section 53-11-451 were not implicated in this case. However, as the Tennessee
Supreme Court explained in Sprunger, “under Tennessee’s statutes, forfeiture can occur
even where the underlying criminal charges are dismissed.” Sprunger, 458 S.W.3d at 493
n.19 (noting the criticism of such a scheme by some legal scholars). As such, the lack of
conviction on drug charges is simply not a bar to the application of the administrative
forfeiture scheme under section 40-33-201 et seq. See Hargrove v. State, Dep’t of Safety,
No. M2004-00410-COA-R3-CV, 2005 WL 2240970, at *3 (Tenn. Ct. App. Sept. 15,
2005) (citing Stuart v. State Department of Safety, 963 S.W.2d 28 (Tenn. 1998)) (“We
think the various statutory schemes, and the various statutes, clearly reveal the legislative
intent to authorize forfeiture even in cases where the party was found innocent of the
offense giving rise to the forfeiture action, an in rem proceeding against the property
only.”).
Here, the record shows that on both arrests, Appellant was found with large
amounts of cash and illegal drugs. Eventually, he was charged in a drug conspiracy in
federal court. The notice of seizures allegedly provided to Appellant at the time of his
arrest specifically stated that the property was seized as being “narcotics related” and
therefore subject to the administrative procedures outlined in section 40-33-201 et seq.
Even viewing the allegations liberally in favor of Appellant, we must conclude that the
procedure applicable under section 40-33-201 et seq. was the appropriate procedure for
contesting the forfeiture of the cash and vehicle seized in this case. Consistent with the
Tennessee Supreme Court previous opinions, Appellant was therefore required to file a
claim with the Tennessee Department of Safety to contest the forfeiture of his property.
See Sprunger, 458 S.W.3d 482, 497 (citing Tenn. Code Ann. § 40-33-206) (“If a
claimant of the seized property wishes to contest the forfeiture, within thirty days of
being notified by the applicable agency of the issuance of the forfeiture warrant, the
property owner must file a written claim with the applicable agency.”) (emphasis
added).7
There is no dispute that Appellant failed to file any claim with the Tennessee
Department of Safety. As such, Appellee contends that this matter was properly
dismissed, as the Tennessee Department of Safety has exclusive jurisdiction over claims
for forfeited property under section 40-33-206. See Moses, 584 S.W.2d at 826–27 (“The
legislature has vested the Commissioner of Safety with the exclusive jurisdiction to
initially determine whether property seized incident to a violation of the Drug Control
Act should be forfeited or returned to the lawful claimant, and has provided for judicial
review of the Commissioner’s ruling, if such is desired by an aggrieved party.”); see also
7
We do not opine as to whether the property was subject to forfeiture or whether Appellee
strictly complied with all applicable requirements, only that the section 40-33-201 et seq. procedure was
applicable.
- 12 -
Redd v. Tennessee Dep’t of Safety, 895 S.W.2d 332, 335 (Tenn. 1995) (“In [section] 53-
11-201, the General Assembly has granted broad power to the Commissioner of Safety to
determine whether confiscated property is subject to forfeiture.”). Appellant argues,
however, that such a requirement should not be imposed on him because he was unable to
meet the time deadlines contained in section 40-33-206 due to Appellee’s failure to
provide him notice.
As previously discussed, Appellant contends that the he was not provided notice
of the forfeiture warrants or orders of forfeiture until November 12, 2015, approximately
four years after the last order of forfeiture was entered. As such, Appellant contends that
Appellee’s own failure to provide him notice consistent with due process deprived him of
the ability to administratively contest the forfeitures under section 40-33-206. We agree
that Appellant’s allegations, taken as true, indicate that the notice provided to Appellant
may have been ineffective.
Here, while Appellant was residing in the Bradley County jail, the relevant
documents were sent to addresses in North Carolina. In order to comport with due
process, notice of the forfeiture “must be given in a manner reasonably calculated to
notify all interested parties of the pending forfeiture of the property in order to afford the
opportunity to object to the State’s taking.” Redd, 895 S.W.2d at 334–35. Although the
Due Process Clause does not require “heroic efforts by the Government[,]” notice “must
be ‘reasonably calculated’ to apprise a party of the pendency of the action[.]” Dusenbery
v. United States, 534 U.S. 161, 170, 122 S. Ct. 694, 701, 151 L. Ed. 2d 597 (2002). Thus,
the United States Supreme Court has held that an effort at notice was sufficient when the
government sent the notice to the petitioner at the correctional facility where the
petitioner was housed. Id. at 168–69 (noting that the notice was also sent to the address
where the petitioner was arrested, an address in the town where the petitioner’s mother
lived, and in the newspaper where the forfeiture was to take place). Arguably, the notice
provided in this case did not meet such a requirement where Appellee was housing
Appellant in its own jail yet chose to send the notice elsewhere. See Nicholas v.
Tennessee Dep’t of Safety & Homeland Sec., No. M2017-01674-COA-R3-CV, 2018
WL 3831518, at *6 (Tenn. Ct. App. Aug. 13, 2018) (citing Helms v. Greene, No. 01A01-
9505-CH-00194, 1997 WL 36846, at *3 (Tenn. Ct. App. Jan. 31, 1997), aff’d sub nom.
Helms v. Tennessee Dep’t of Safety, 987 S.W.2d 545 (Tenn. 1999)) (“Courts typically
do not consider sending a letter to a party’s last known address to constitute adequate
notice if the sender knows ‘that the person no longer lives at that address’ and if the
person’s new address is known or easily ascertainable.”).
Still, we cannot conclude that the alleged lack of notice in this case changes the
administrative procedures applicable to Appellant’s effort to contest the forfeiture. Here,
the procedures contained in section 40-33-206 allow a property owner to file a claim
within thirty days “of being notified by the applicable agency” of the forfeiture warrant.
Tenn. Code Ann. § 40-33-206(a). Thus, it appears that the question of whether notice
comported with due process so as to trigger the thirty day period for filing a claim should
- 13 -
be litigated in the agency. Indeed, other cases have inferentially approved this practice.
For example, in Nicholas v. Tennessee Department of Safety & Homeland Security, the
property owner filed a claim in the Tennessee Department of Safety to contest the
forfeiture of property seized in a drug arrest. 2018 WL 3831518, at *1. Eventually, the
Tennessee Department of Safety sent a notice of forfeiture proceedings to the property
owner at a Tennessee address on May 16, 2014. On June 19, 2014, the property owner
filed a claim with the Tennessee Department of Safety. The department promptly
dismissed the claim as untimely. The property owner thereafter filed a timely petition for
judicial review, arguing that his claim was timely because it was filed within thirty days
of actually receiving the notice. The trial court reversed the dismissal, holding that the
thirty day time period began to run when the property owner received the notice. Id. at
*2.
The Court of Appeals ultimately affirmed the trial court on different grounds.
First, the court held that under section 40-33-206(a), the time for filing a claim
“commences on the date a party is given notice satisfying all statutory and constitutional
requirements.” Id. at *6 (distinguishing this period from the period applicable to secured
parties). The court went on to hold, however, that the notice provided did not comply
with due process because it provided “a misleading characterization of the
commencement of the applicable time period to file a claim that may, as occurred in this
case, lead unsuspecting claimants to believe they have longer to file a claim than they, in
fact, have.” Id. at *7. Because the notice was insufficient, the court held that the thirty-
day time period contained in section 40-33-206 did not begin to run until the date the
notice was delivered, rendering the property owner’s claim timely. As such, the court
affirmed the trial court’s decision to reverse the dismissal, reinstate the property owner’s
claim, and remand to the agency for a hearing on the merits. Id. at *7. Thus, the fact that
the notice did not comport with due process did not take the claim out of the jurisdiction
of the Tennessee Department of Safety, but merely altered the date upon which a timely
claim could be filed. In another case, the Tennessee Supreme Court came to a similar
conclusion, holding that a claim should not have been dismissed as untimely where
proper notice to the interested party was not provided; a claim had, however, been filed
with the proper agency. See Redd, 895 S.W.2d at 335 (remanding to the trial court for a
trial on the merits). Thus, taking Appellant’s allegation that the notice provided was
insufficient and he only obtained actual notice of the proceedings on November 12, 2015,
the proper avenue of relief should have been to then file a claim with the Tennessee
Department of Safety. There is no dispute, however, that Appellant never filed any claim
with the applicable agency.
Of course, judicial review is not entirely foreclosed under these circumstances.
Specifically, the version of Tennessee Code Annotated section 40-33-213 applicable
during the relevant time provided that a “party aggrieved by the decision of the applicable
agency may seek judicial review of the decision by filing a written notice of review” in
- 14 -
the circuit or chancery court of Davidson County.8 Tenn. Code Ann. § 40-33-213(a), (c)
(2015).9 The petition for review is “conducted in the same manner as is provided in § 4-
5-322, for a contested case hearing under the Uniform Administrative Procedures Act
[“UAPA”], compiled in title 4, chapter 5.” Id. § 40-33-213(b). Under Tennessee Code
Annotated section 4-5-322, petitions for judicial review must be filed “within sixty (60)
days after the entry of the agency’s final order thereon.” Tenn. Code Ann. § 4-5-
322(b)(1)(A)(iv).
Here, even construing Appellant’s petition as one for judicial review, it does not
comply with the applicable statutes. First, the petition was not filed in the appropriate
county. See Tenn. Code Ann. § 40-33-213(c). The UAPA provides, however, that this
mistake is not fatal, as section 4-5-322(b)(2) states that “[i]n a case in which a petition for
judicial review is submitted within the sixty-day period but is filed with an inappropriate
court, the case shall be transferred to the appropriate court.” Of course, the above
provision requires that the petition be “submitted within the sixty-day period[.]” Tenn.
Code Ann. § 4-5-322(b)(2). Unfortunately, Appellant has failed to meet this requirement.
For one, there can be no dispute that Appellant failed to seek judicial review within sixty
days of the issuance of any of the administrative forfeiture orders. Moreover, even taking
Appellant’s allegation that he did not receive notice of the orders until November 12,
2015, and assuming, arguendo, that this is the date upon which the sixty-day time period
began to run, Appellant’s petition was filed well outside the sixty-day time period.10 “A
party’s failure to file a petition for review on or before the statutory deadline prevents the
courts from exercising their jurisdiction to review the agency’s decision.” Davis v.
Tennessee Dep’t of Employment Sec., 23 S.W.3d 304, 307–08 (Tenn. Ct. App. 1999
(citing Schering-Plough Healthcare Prods., Inc. v. State Bd. of Equalization, 999
S.W.2d 773, 776 (Tenn. 1999)). Where Appellant did not attempt to file a claim in the
applicable agency and did not seek judicial review of the agency’s decision within sixty
days of being notified of it, at the latest, we must conclude the trial court did not err in
holding that it was deprived of jurisdiction to consider any effort to reclaim the forfeited
property. See Bryant, 1997 WL 170340, at *1–*2 (affirming the trial court’s finding of
lack of jurisdiction, where the property owner alleged that notice of the forfeiture
proceedings was insufficient but did not file a petition for judicial review within sixty
days of admittedly obtaining actual notice of the forfeiture order).
Despite Appellee’s argument otherwise, this holding does not end our inquiry.
Here, a review of Appellant’s pleadings reveals that he does not seek simply a return of
8
The orders of forfeiture contained in the record likewise state that Appellant is entitled to
judicial review.
9
Section 40-33-213 was amended effective January 1, 2019 to provide additional counties in
which such an action could be filed. See 2018 Tenn. Laws Pub. Ch. 772 (H.B. 2021). Bradley County was
not included as a proper county in the amended statute. For purposes of this case, we refer to the prior
version.
10
Appellant’s initial complaint was filed on February 9, 2016, over eighty days after he alleges
that he learned of the forfeiture proceedings.
- 15 -
his property, but rather monetary damages that resulted from his seized property, as well
as attorney’s fees. This is particularly important as to Appellant’s allegation that Appellee
improperly disposed of his U-Haul and its contents, as none of the documents in the
record indicate that it was seized in accordance with procedures outlined in section 40-
33-201 et seq. With regard to this property, as well as the cash and vehicle, Appellant
alleges that Appellee’s misconduct was knowing, reckless, and intentional, as well as
conducted with malice and deceit, resulting in significant monetary damages to
Appellant. Thus, Appellant appears to argue that Appellee’s employees acted improperly
with regard to the seizure of the cash, vehicles, U-Haul, and its contents.
In our view, these allegations implicate the cause of action outlined in Tennessee
Code Annotated section 40-33-215, which provides that “[a] person who has property
seized in accordance with this part shall have a cause of action against the seizing agency
if the seizing officer acted in bad faith in seizing or failing to return property seized
pursuant to this part.” According to the statute, a seizing officer acts in bad faith “when
the officer acts intentionally, dishonestly, or willfully or the officer’s actions have no
reasonable basis in law or fact in regards to the seizure or failure to return the property
seized.” Tenn. Code Ann. § 40-33-217(d). Prevailing on such a claim entitles the
property owner to reasonable attorney’s fees and costs and monetary damages, exactly
the types of damages sought by Appellant in his amended complaint.11 Id. § 40-33-
217(b). As such, it appears that while Appellant did not specifically reference section 40-
33-215 in his pleadings, giving effect to the substance of his pleadings, rather than its
terminology, a claim under section 40-33-215 was fairly raised by Appellant’s amended
complaint. See Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003) (citing
Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994)) (“Even though
the courts cannot create claims or defenses for pro se litigants where none exist, they
should give effect to the substance, rather than the form or terminology, of a pro se
litigant’s papers.”) (citation omitted).
To the extent that this claim was implicated by Appellant’s pleadings, it was not
specifically addressed by Appellee’s motion to dismiss or the trial court’s order. As
previously discussed, the trial court dismissed this case solely on the basis of lack of
subject matter jurisdiction. Nothing in Appellee’s motion to dismiss or brief addresses the
trial court’s subject matter jurisdiction over a claim filed pursuant to section 40-33-215.
Likewise, the trial court’s order provides no guidance as to this particular claim.
Although few cases have considered this statute, the little caselaw on this subject reveals
that these cases have been filed as original actions in the counties where the property was
seized. See Morton v. Knox Cty. Sheriff’s Dep’t, No. E2017-02077-COA-R9-CV, 2019
WL 645042 (Tenn. Ct. App. Feb. 15, 2019), perm. app. denied (Tenn. June 19, 2019)
(involving a section 40-33-215 claim filed in the circuit court of the county where the
11
Section 40-33-215(c) appears to limit the damages allowed to “the value of the seized
property.” As such, Appellant’s claim for punitive damages may not be authorized by the statute. This is a
proper matter to be litigated upon remand.
- 16 -
property was seized). As such, at this time, we have been presented with no authority to
suggest that a section 40-33-215 claim could not be filed in the Bradley County Circuit
Court. The trial court’s ruling that it lacked subject matter jurisdiction over this claim
therefore appears to have been in error.
In sum, the trial court correctly dismissed any claim for the return of the property
seized under Tennessee Code Annotated section 40-33-201 et seq. where Appellant failed
to file a claim for the property with the Tennessee Department of Safety and failed to file
a timely petition for judicial review pursuant to the UAPA. Nothing in Appellant’s
arguments to the trial court or this Court indicate that the same result is required of
Appellant’s claim under section 40-33-215. As such, we reverse the dismissal of
Appellant’s claim for damages pursuant to that statute.12
CONCLUSION
The judgment of the Bradley County Circuit Court is affirmed in part and reversed
in part. This matter is remanded to the trial court for further proceedings in accordance
with this Opinion. Costs of this appeal are taxed one-half to Appellant Abraham Asley
Augustin, and one-half to Appellee the Bradley County’s Sheriff’s Department, for all of
which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
12
Appellant’s 40-33-215 claim may have other fatal defects, including, but not limited to, issues
regarding the statute of limitations, or other issues of subject matter jurisdiction yet to be raised. Because
neither the trial court nor the parties appear to have addressed these issues in the trial court, we leave
these issues to be raised and resolved upon remand.
- 17 -