05/13/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 10, 2022 Session
LARRY BROWN ET AL. v. TENNESSEE DEPARTMENT OF SAFETY
AND HOMELAND SECURITY
Appeal from the Chancery Court for Davidson County
No. 17-1197-III, 17-1204-III Ellen Hobbs Lyle, Chancellor
___________________________________
No. M2021-00422-COA-R3-CV
___________________________________
This case arises from the seizure of property owned by Appellants and the ensuing
forfeiture action brought against them by Appellee Tennessee Department of Safety and
Homeland Security. After Appellee voluntarily dismissed the forfeiture action, the
Administrative Law Judge awarded Appellants a portion of their requested attorney’s fees
under Tennessee Code Annotated section 4-5-325(a). The Chancery Court of Davidson
County reversed the award of fees on its finding that Appellee did not issue a “citation” as
required for recovery of attorney’s fees under section 4-5-325(a). The trial court also held
that Appellants were not entitled to recover attorney’s fees under 42 U.S.C. § 1988.
Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,
and CARMA DENNIS MCGEE, JJ., joined.
Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Larry Brown and Chandra
Brown.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; Rob Mitchell and Mallory Kathryn Schiller, Assistant Attorneys General, for the
appellee, Tennessee Department of Safety and Homeland Security.
OPINION
I. Background
This case arises from the seizure of property owned by Larry Brown and his
daughter Chandra Brown (together, the “Browns,” or “Appellants”) and the subsequent
administrative forfeiture proceedings conducted under Tennessee Code Annotated sections
40-33-201 through 217. Law enforcement officers with the Eighth Judicial Drug Task
Force executed a search warrant on April 7, 2015, at the home shared by the Browns after
investigating Larry Brown for drug activity. During the search, officers seized property
belonging to both Larry and Chandra Brown, including a 1996 Honda Goldwing
motorcycle, a 2003 Chevrolet Z71 truck, a Troybilt pressure washer, $2,741.00 in U.S.
currency, a 1994 Winnebago Vectra motorhome, a Stihl weed eater, an Exmark Lazer Z
lawn mower, and a 1992 Ford Superduty FSD truck. Notices of seizure were issued by the
Eighth Judicial Drug Task Force, i.e., the seizing agency, and, on May 6, 2015, the circuit
court issued a forfeiture warrant under Tennessee Code Annotated section 40-33-204.
Thereafter, Appellee Tennessee Department of Safety and Homeland Security (the
“Department”) sent notice to the Browns of the issuance of the forfeiture warrant.
The Browns subsequently petitioned the Department for the return of the seized
property, and the case was assigned to an Administrative Law Judge (“ALJ”). Following
a hearing on January 26, 2017, the ALJ found that the Department failed (with one
exception, the 2003 Chevrolet Z71 truck) to show any connection between the seized
property and drug sales. Therefore, the ALJ ordered that the property be returned, except
for the truck. On appeal to the Department’s Appeals Division, the Division reversed in
part but agreed that the Department failed to carry its burden (except with regard to the
truck) and ordered that some of the property be returned. The matter was remanded to the
ALJ and set for another hearing. Before that hearing occurred, the seizing agency returned
all of the property (including the truck) to the Browns, and the Department filed a motion
for an order of voluntary dismissal of the forfeiture proceeding. The Browns opposed
dismissal and requested attorney’s fees and costs pursuant to Tennessee Code Annotated
section 4-5-325(a) and 42 U.S.C. § 1988. The ALJ granted the Department’s motion to
dismiss.
Approximately three months later, on September 13, 2017, the ALJ granted the
Browns’ motion for attorney’s fees pursuant to Tennessee Code Annotated section 4-5-
325(a), awarding them $35,000.00 of the $100,752.50 they requested. As grounds for the
award of fees, the ALJ found that there was no basis for the seizure of any of the property
except the truck, and that the Department did not fulfill its statutory obligation to “release
the property if there is no legal and factual basis for forfeiture” under Tennessee Code
Annotated section 40-33-204(g). The ALJ did not address the Browns’ claim for fees under
42 U.S.C. § 1988. The Department filed a “Petition for Reconsideration/to Alter or Amend
Language [and] Motion for Stay.” The Browns filed a Response and Cross-Petition to
Alter, Amend and Revise the September 13, 2017 Order, seeking to recover all of their
claimed attorney’s fees in the amount of $100,752.50. The ALJ denied both motions on
October 23, 2017. Thereafter, both parties filed petitions for judicial review in the
Davidson County Chancery Court (“trial court”), which petitions were consolidated into
one action.
-2-
On March 25, 2021, the trial court entered an order reversing the ALJ’s award of
attorney’s fees. In relevant part, the trial court held:
[T]he Court orders that the petition for judicial review of [Department] is
granted; the September 13, 2017 Final Order of the ALJ awarding $35,000
in attorney’s fees under Tennessee Code Annotated section 4-5-325 is
reversed; and the Browns are not entitled to recovery of attorney’s fees under
this statute.
***
As to the Browns’ petition for judicial review for recovery from this
Court or remand to the ALJ for attorney’s fees under 42 U.S.C. §1988, it is
ORDERED that the petition is dismissed with prejudice. The Browns shall
not recover because they have failed to demonstrate on the record asserted
Fourth, Fifth and Fourteenth Amendment constitutional violations on which
to premise recovery of attorney’s fees under 42 U.S.C. section 1988. The
above ruling that [the Department] did not issue a citation and was not the
initial entity for the seizure, this Court concludes, precludes liability under
the Fourth Amendment. As to the Fifth and Fourteenth Amendment due
process claims, the Browns failed to provide sufficient analysis of the law
and facts of record under Paratt v. Taylor, 451 US. 527 (1981) doctrine to
establish a Fifth and Fourteenth Amendment violation for recovery of 42
U.S.C. § 1988 attorney’s fees.
The Browns appeal.
II. Issues
The Browns raise the following issues for review:
1. Did the Chancery Court lack subject matter jurisdiction because there was
not a Tennessee Code Annotated section 4-5-314(c) final order, or Tennessee
Code Annotated section 4-5-322(a)(1) final decision, by the Administrative
Judge, on the aspect of the Browns’ claims for attorney’s fees pursuant to 42
U.S.C. § 1988(b) made applicable to Tennessee proceedings by
Bloomingdale’s by Mail v. Huddleston, 848 S.W.2d 52 (Tenn. 1992) and
Tennessee administrative proceedings pursuant to Wimley v. Rudolph, 931
S.W.2d 513 (Tenn. 1996).
2. Did the Chancellor err by dismissing the Browns’ 42 U.S.C. § 1988(b)
claims for attorney’s fees.
3. Were letters issued by [the Department] within the meaning of Tennessee
Code Annotated section 4-5-325(a) “Citation[s]. . . for the violation of a rule,
-3-
regulation or statute,” or the functional equivalent of “Citations[s]. . . for the
violation of a rule, regulation or statute.”
4. Should this Court reverse the Chancery Court’s denial of attorney’s fees
with instructions to remand to the Administrative Judge to render a final
order on the Browns’ pretermitted 42 U.S.C. § 1988(b) claims, and for
awards of attorney’s fees for representation in the Chancery Court, and on
appeal pursuant to Tennessee Code Annotated section 4-5-325(a) and/or 42
U.S.C. § 1988(b).
III. Standard of Review
Judicial review of civil forfeiture proceedings is primarily governed by the
Tennessee Uniform Administrative Procedures Act (“UAPA”). Nicholas v. Tenn. Dep’t
of Safety & Homeland Sec., No. M2017-01674-COA-R3-CV, 2018 WL 3831518, at *2
(Tenn. Ct. App. Aug. 13, 2018); McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 819
(Tenn. Ct. App. 2005). Under the version of Tennessee Code Annotated section 4-5-322(h)
in effect when the trial court rendered its decision, the agency’s decision may be reversed
or modified if the decision is shown to be:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion; or
(5)(A) Unsupported by evidence which is both substantial and
material in the light of the entire record. . . .
Tenn. Code Ann. § 4-5-322(h). In forfeiture cases, this standard is slightly modified.
Instead of the substantial-and-material-evidence standard under section 4-5-322(h)(5), the
preponderance-of-evidence standard is used in determining whether to sustain or reverse
the final agency order. Tenn. Code Ann. § 40-33-213(a) (stating that in appeals of forfeiture
cases “[t]he reviewing court shall use the preponderance of evidence standard in
determining whether to sustain or reverse the final order of the applicable agency.”);
McEwen, 173 S.W.3d at 819-20.
IV. Analysis
Before turning to the issues, we pause to review the statutory scheme applicable to
the forfeiture of Appellants’ property. 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 facilitate 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
-4-
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. Tenn. Dep’t of Safety, 987 S.W.2d 545, 547 (Tenn. 1999)).
As discussed by 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. § 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.
-5-
§ 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.
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 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.
-6-
(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.
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.”, 987
S.W.2d at 547.
Sprunger, 458 S.W.3d at 495-98 (footnotes omitted). With the foregoing in mind, we turn
to address the issues in the current appeal.
A. Trial Court’s Jurisdiction
As an initial matter, the Browns challenge the trial court’s subject matter
jurisdiction. As noted above, the ALJ awarded the Browns’ attorney’s fees solely under
Tennessee Code Annotated section 4-5-325(a), but it did not address their claim for
attorney’s fees under 42 U.S.C. § 1988, which provides that “[i]n any action or proceeding
to enforce [the listed federal civil rights laws], the court, in its discretion, may allow the
prevailing party. . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b).
As a threshold matter, the Browns assert that the ALJ’s failure to address their 42 U.S.C.
§ 1988 theory resulted in the ALJ’s order not being final under Tennessee Code Annotated
sections 4-5-314(a), (c), which provide, in relevant part:
(a) An agency with statutory authority to decide a contested case shall render
a final order.
***
(c) A final order, initial order or decision under § 50-7-304 shall include
conclusions of law, the policy reasons therefor, and findings of fact for all
aspects of the order, including the remedy prescribed . . . .
Tenn. Code Ann. § 4-5-314(a), (c). In the alleged absence of a final order from the ALJ,
the Browns maintain that the trial court did not obtain subject matter jurisdiction over the
case. Tenn. Code Ann. § 4-5-322(a)(1) (“A person who is aggrieved by a final decision
in a contested case is entitled to judicial review under this chapter, which shall be the only
available method of judicial review.”) (emphasis added). As explained by this Court in the
-7-
recent case of Holland v. Tennessee Department of Safety & Homeland Security, section
1988(b) “does not authorize an ALJ in an administrative proceeding to award fees. ‘[O]nly
a court in an action to enforce one of the civil rights laws listed in § 1988 may award
attorney’s fees.’” Holland v. Tenn. Dep’t. of Safety & Homeland Sec., No. M2020-01044-
COA-R3-CV, 2022 WL 852906, at *4 (Tenn. Ct. App. March 23, 2022) (quoting N.
Carolina Dep’t of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 15 (1986)).
Although it was not within the ALJ’s purview to award attorney’s fees under section
1988, Appellant contends that the ALJ’s failure to address the question resulted in its order
not being a final judgment. The Holland Court addressed the exact arguments espoused
by Appellants in this case, to-wit:
Ms. Holland argues that the order granting her fee request was not
final because the ALJ did not address whether she was entitled to fees under
the federal statute. See 42 U.S.C. § 1988(b) (Supp. 2020). Here, in a previous
order, the ALJ dismissed the forfeiture proceeding and ordered the return of
the vehicle and cost bond. Later, the ALJ awarded Ms. Holland the full
amount of her requested attorney’s fees. After entry of these two orders, there
was nothing left to adjudicate. See Ball[ v. McDowell, 288 S.W.3d [833,] at
836-37 [(Tenn. 2009) (explaining that a final judgment is a judgment “that
resolves all of the parties’ claims and leaves the court with nothing to
adjudicate”)].
We recognize that Ms. Holland claimed that she was entitled to
attorney’s fees under two different statutes. Still, she was only entitled to one
recovery. See TSC Indus., Inc. v. Tomlin, 743 S.W.2d 169, 172 (Tenn. Ct.
App. 1987) (explaining that “where there is only one injury the law permits
only one recovery”); Ford Motor Co. v. Taylor, 446 S.W.2d 521, 530 (Tenn.
Ct. App. 1969) (“[C]are should be exercised to avoid double recoveries.”).
As Ms. Holland had been fully compensated by the ALJ’s order under the
state statute, she could not also recover under the federal statute. Under the
circumstances and based on our interpretation of the federal statute, we
conclude that the failure to address fees on the alternative theory of 42 U.S.C.
§ 1988(b) did not render the ALJ’s order interlocutory.
Ms. Holland also contends that the ALJ’s order was not final because
it did not include findings of fact and conclusions of law for all aspects of
her claim. For this proposition, she cites Tennessee Code Annotated § 4-5-
314(c). Ms. Holland misapprehends the statutory requirement. The UAPA
mandates that all “final [and] initial order[s] . . . include conclusions of law,
the policy reasons therefor, and findings of fact for all aspects of the order,
including the remedy prescribed.” Tenn. Code Ann. § 4-5-314(c) (2021).
This requirement is essential for effective judicial review of administrative
decisions. See Levy v. State Bd. of Exam’rs for Speech Pathology &
Audiology, 553 S.W.2d 909, 911-12 (Tenn. 1977) (discussing predecessor
-8-
statute); Swift Roofing, Inc. v. State, No. M2010-02544-COA-R3-CV, 2011
WL 2732263, at *6 (Tenn. Ct. App. July 13, 2011). But it has no bearing on
whether an administrative order is final.
Id. at *2-3. Under the holdings in Holland, Appellants’ arguments are unpersuasive. Once
the ALJ awarded the Browns fees under section 4-5-325(a), it was simply not necessary
for the ALJ to address whether the Browns were entitled to their fees under the alternative
theory, i.e., 42 U.S.C. § 1988. The ALJ’s order was a final decision, which conferred
subject matter jurisdiction to the trial court.
B. Fees under Tennessee Code Annotated section 4-5-325
When the Browns’ property was seized, Tennessee Code Annotated section 4-5-
325(a) provided, in relevant part:1
(a) When a state agency issues a citation to a person, local governmental
entity, board or commission for the violation of a rule, regulation or statute
and such citation results in a contested case hearing, at the conclusion of such
hearing, the hearing officer or administrative law judge may order such
agency to pay to the party issued a citation the amount of reasonable expenses
incurred because of such citation, including a reasonable attorney’s fee, if
such officer or judge finds that the citation was issued:
(1) Even though, to the best of such agency’s knowledge, information and
belief formed after reasonable inquiry, the violation was not well grounded
in fact and was not warranted by existing law, rule or regulation; or
(2) For an improper purpose such as to harass, to cause unnecessary delay
or cause needless expense to the party cited.
Tenn. Code Ann. § 4-5-325(a).
The Browns argue that they are entitled to attorney’s fees under the foregoing statute
and maintain that the trial court erred in reversing the ALJ’s award of same. As set out in
context above, a threshold requirement for the award of attorney’s fees under section 4-5-
325(a) is that the Department “issue[d] a citation” to the Browns. Before turning to that
specific question, we note that our goal in statutory construction is to “carry out legislative
intent without broadening or restricting the statute beyond its intended scope.” In re Estate
1
The statute was amended effective May 12, 2021. See 2021 Tenn. Pub. Acts, ch. 403, § 1. The
Department’s notices of forfeiture warrant were sent to the Browns in early May 2015, and the ALJ awarded
fees under the statute on September 13, 2017. Accordingly, the amended version of the statute does not
apply here. C-Wood Lumber Co. v. Wayne Cty. Bank, 233 S.W.3d 263, 282 (Tenn. Ct. App. 2007)
(“[S]tatutes are generally not given retroactive effect unless the legislature has clearly expressed an
intention that the new statute is to be applied retroactively.”).
-9-
of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Houghton v. Aramark Educ. Res.,
Inc., 90 S.W.3d 676, 678 (Tenn. 2002)). As such, we presume that every word contained
in a statute has both meaning and purpose and should therefore be given its full effect if
the General Assembly'’s obvious intention is not violated in doing so. Id. at 613-14 (citing
In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005)). Thus, when the language of a statute is
unambiguous, we apply its plain meaning. State v. Wilson, 132 S.W.3d 340, 341 (Tenn.
2004) (citing Carson Creek Vacation Resorts v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.
1993)). Essentially, “[o]ur obligation is simply to enforce the written language.” In re
Estate of Tanner, 295 S.W.3d at 614 (citing Abels ex rel. Hunt v. Genie Indus., Inc., 202
S.W.3d 99, 102 (Tenn. 2006)).
Administrative forfeiture proceedings are actions “in rem, regarding the property.”
State v. Sprunger, 458 S.W.3d at 492. “[I]t is the property itself which is targeted, not the
owner of the property.” Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 33 (Tenn. 1998);
In re Tenn. Walking Horse Forfeiture Litig., No. W2013-02804-COA-R3CV, 2015 WL
1636704, at *3 (Tenn. Ct. App. Apr. 8, 2015) (“[T]he defendant in a civil forfeiture action
is the subject property, rather than any owners or interest holders in the property.”). As
such, they do not involve the issuance of a citation to the person. Forfeiture proceedings
are commenced through the issuance of a forfeiture warrant by a judge at the request of the
seizing agency, here, the Eighth Judicial Drug Task Force. Sprunger, 458 S.W.3d at 496-
97; Tenn. Code Ann. § 40-33-204(a) (“Once personal property is seized pursuant to an
applicable provision of law, no forfeiture action shall proceed unless a forfeiture warrant
is issued in accordance with this section . . . .”). It is only after the seizing agency has
seized the property and applied to the court for a forfeiture warrant that the “applicable
agency,” here, the Department, receives the warrant, the supporting affidavit, and the notice
of seizure. Tenn. Code Ann. § 40-33-204(g) (“Upon issuance of the forfeiture warrant, the
judge shall . . . within seven (7) working days, send the warrant, a copy of the affidavit and
the notice of seizure to the applicable agency.”).
The Browns make two arguments in furtherance of their contention that they are
entitled to attorney’s fees under Tennessee Code Annotated section 4-5-325. First, they
contend that the inclusion of the notices of seizure and the notice of forfeiture warrant with
the Department’s notice letter somehow constitutes the Department’s issuance of the
“functional equivalent” of a citation. In the alternative, they argue that this Court’s holding
in American Child Care, Inc. v. State, 83 S.W.3d 148 (Tenn. Ct. App. 2001) excuses the
“citation” criterion.
The appellant in Holland made the same arguments. Concerning the “functional
equivalent of a citation” argument, the Holland Court explained:
Ms. Holland insists that the notice she received from the Department was a
citation or, at least, the functional equivalent of one. We find her argument
unavailing. The notice did not command her to appear at a certain time and
- 10 -
place to do something or to defend against a charge. See Citation, BLACK’S
LAW DICTIONARY (11th ed. 2019). Rather, the notice gave her an
opportunity to file a claim alleging an interest in the seized property and
requesting a hearing. See Tenn. Code Ann. § 40-33-206.
Holland, 2022 WL 852906, at *4. The same is true here. Under the statutory scheme,
notices of seizure are provided by the seizing officer (here, an officer with the Eighth
Judicial Drug Task Force) to persons in possession of the seized property; these notices are
not provided by the Department. See Tenn. Code Ann. § 40-33-203(c) (“Upon the seizure
of any personal property subject to forfeiture pursuant to § 40-33-201, the seizing officer
shall provide the person found in possession of the property, if known, a receipt titled a
“Notice of Seizure.”). Likewise, the Department did not issue the forfeiture warrant; rather,
the warrant was issued by a circuit court judge. The Browns cite no authority for the
proposition that enclosing a document issued by another agency transforms the sender into
the issuer of the enclosure, and we find no authority to support such suggestion. In sum,
the Department did not issue a citation to the Browns.
In the alternative, the Browns rely on the case of American Child Care, where this
Court held that the Department of Human Services was liable for attorney’s fees under
Tennessee Code Annotated section 4-5-325(a). American Child Care, 83 S.W.3d at 148.
In American Child Care, the agency “skipped the citation and issued a summary
suspension under an internal zero tolerance policy that the [trial] court found to be invalid
. . .[t]hen . . . ignored the statutory requirement of meaningful hearing.” Id. at 153. We
explained that to hold that the agency did not owe attorney’s fees because it failed to issue
a formal citation would “exal[t] form over substance” and “incentivize the agency to adopt
the same procedure in the future.” Id. American Child Care is readily distinguishable
from the instant case. Unlike American Child Care, here, the Department did not “skip”
the issuing of a citation. Rather, as discussed in detail above, the Department does not
issue citations in in rem forfeiture proceedings. We conclude that the more recent case of
Groves v. Tennessee Department of Safety and Homeland Security, No. M2016-01448-
COA-R3-CV, 2018 WL 6288170 (Tenn. Ct. App. Nov. 30, 2018), perm. app. denied
(Tenn. May 16, 2019), is dispositive. In Groves, we held that the notification letter sent by
the Department on the issuance of a forfeiture warrant was not a citation. Id. at *5 (“Here,
Mr. Groves was not a ‘party issued a citation’ for ‘the violation of a rule, regulation or
statute.’ The only document sent to Mr. Groves was a notice that a forfeiture warrant had
been issued for the vehicle.”). The same is true here; the only document sent by the
Department to the Browns was the letter notifying the Browns that the forfeiture warrant
had been issued based on the notices of seizure provided to the circuit court by the law
enforcement officers conducting the seizure. The Groves case makes clear that Tennessee
Code Annotated section 4-5-325(a) does not provide for recovery of fees against the
Department under such circumstances. Id. (“[T]he statute relied on by Mr. Groves for
payment of attorney’s fees [i.e., Tennessee Code Annotated section 4-5-325(a)] did not
authorize such an award in these circumstances . . . .”); accord Holland, 2022 WL 852906,
- 11 -
at *4 (citing Tenn. Code Ann. § 40-33-204; Sprunger, 458 S.W.3d at 497-98) (“Here, the
Department did not skip over the citation stage. No citations are issued to a vehicle owner
in a forfeiture proceeding. Ms. Holland was not entitled to an award of attorney’s fees
based on Tennessee Code Annotated § 4- 5- 325(a).”). For these reasons, the trial court
correctly held that the ALJ’s award of attorney’s fees under Tennessee Code Annotated
section 4-5-325(a) was error.
B. Attorney’s Fees under 42 U.S.C. § 1988
for violations of 42 U.S.C. § 1983
The Browns argue that the trial court erred in denying their claim for attorney’s fees
under 42 U.S.C. § 1988. As noted above, attorney’s fees may be awarded under 42 U.S.C.
§ 1988 to prevailing parties in an action or proceeding to enforce certain statutory or
constitutional rights, including (as relevant here) constitutional rights capable of being
enforced under 42 U.S.C. § 1983. 42 U.S.C. § 1988(b) (“In any action or proceeding to
enforce [the listed federal civil rights laws], the court, in its discretion, may allow the
prevailing party. . . a reasonable attorney’s fee as part of the costs.”). Under Tennessee law,
“[i]n order to establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must
demonstrate that: (1) the defendant was acting under the color of state law; and (2) the
defendant’s conduct deprived the plaintiff of a right, privilege or immunity secured by the
Constitution or federal law.” Davidson v. Bredesen, 330 S.W.3d 876, 887 (Tenn. Ct. App.
2009) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986) (clarifying that the “[m]ere lack of
due care by a state official does not ‘deprive’ an individual of life, liberty or property under
the Fourteenth Amendment.”)).
1. Whether the Browns state a claim for violation
of the Fourth Amendment
The Fourth Amendment to the United States Constitution provides:
Unreasonable searches and seizures.—The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the person or things to be seized.
Similarly, Article 1, § 7 of the Tennessee Constitution guarantees
that the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures; and that general
warrants, whereby an officer may be commanded to search suspected places,
without evidence of the fact committed, or to seize any person or persons not
- 12 -
named, whose offences are not particularly described and supported by
evidence, are dangerous to liberty and ought not to be granted.
The intent and purpose of the prohibition against unreasonable searches and seizures
found in the Tennessee Constitution has been found to be the same as that found in the
Fourth Amendment to the United States Constitution. See State v. Simpson, 968 S.W.2d
776, 779 (Tenn. 1998). According to the Supreme Court, the purpose of the prohibition
against unreasonable searches and seizures in the Fourth Amendment is to “safeguard the
privacy and security of individuals against arbitrary invasions of government officials.”
Camara v. Municipal Court, 387 U.S. 523, 528 (1967). The Fourth Amendment protects
people, not places, wherever they may have a “reasonable expectation of privacy.” Katz v.
United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring).
In its March 25, 2021 order, the trial court held that the “[Department] is not the
seizing authority so there is no Fourth Amendment violation by [the Department].”
Contrary to the trial court’s holding, in their appellate brief, the Browns argue:
The Chancellor cited T.C.A. § 40-33-204(g), however the Chancellor
did not apply, or make findings or conclusions of law, regarding the T.C.A.
§ 40-33-204(g) requirement that [the Department] review the forfeiture
warrant, that incorporated the § 40-33-204(b)(1) affidavit quoted above, and
conduct a new investigation of the factual and legal basis to continue to seize
the property for forfeiture.
The Browns claim that the requirements of T.C.A. § 40-33-204(g),
and [the Department’s] approval of the T.C.A. § 40-33-204(b) affidavit,
resulted in [the Department] becoming a “state agency” that reviewed and
approved the seizure and the Chancellor’s ruling of law that only the “seizing
agency” could violate the U.S. Const. Fourth Amendment being in error.
In Morton v. Knoxville County Sheriff’s Department, No. E2017-02077-COA-R9-
CV, 2019 WL 645042 (Tenn. Ct. App. Feb. 15, 2019), perm. app. denied (Tenn. June 19,
2019), this Court addressed the same argument that the Browns make here. As in the
instant appeal, in Morton, the appellant argued that the Knox County Sheriff’s Deputy was
the initial seizing officer, but “the department became the seizing authority and/or seizing
agency after it refused to terminate forfeiture proceedings required by § 40-33-204(g).” Id.
at *6. The Morton Court held that the “Department could be liable to Morton if it acted
in bad faith in refusing to release the seized property after discovering the valid lien. Both
[the Department and the Sheriff’s Deputy] could be ‘seizing authorities’ within the
meaning of section 40-33-215.” Id. at *7 (emphasis added).2 Under the holding in Morton,
the Department may be considered the “seizing agency” if it acted in bad faith. However,
2
We note that the Morton Court also held that Tennessee Code Annotated section 40-33-215
removes sovereign immunity. Morton, 2019 WL 645042, at *7.
- 13 -
unlike in Morton, here, there was no such finding. As set out in its March 25, 2021 order,
the trial court reiterated the ALJ’s finding that the Department did not act in bad faith, to-
wit:
No bad faith but failed good faith by TDOS—“It is clear the Department did
not fulfill its statutory obligation in this case. The seizure statute directs the
Department that ‘upon receipt of the notice of seizure and forfeiture warrant
and after interviewing any witnesses, the [Department] shall release the
property if there is no legal or factual basis for forfeiture.’ T.C.A. §40-33-
204(g). If the Department had, it would have immediately learned that this
was a bad seizure and returned the property. Instead, it pursued a course of
action with a goal of winning the case at any cost. While one cannot say the
Department pursued this course of action in bad faith, it is clear it was not a
failed good faith course of action. . . .
In the absence of a finding of bad faith on the part of the Department, the trial court’s
holding that the “[Department] is not the seizing authority so there is no Fourth
Amendment violation by [the Department]” was correct.
2. Whether the Browns state a claim for violation
of the Fifth and Fourteenth Amendments.
Having determined that the Browns failed to state a Fourth Amendment claim, we
turn to the question of whether they may recover fees under § 1988(b) for Fifth and
Fourteenth Amendment violations under § 1983. A plaintiff seeking to establish a
procedural-due-process claim under § 1983 must show: “(1) the existence of a protected
property interest at issue, (2) a deprivation of that protected property interest, and (3) that
he or she was not afforded adequate procedures.” Sherman v. State of Tennessee, No. 16-
02625, 2017 WL 2589410, at *15 (W.D. Tenn. June 14, 2017) (quoting Paterek v. Village
of Armada, 801 F.3d 630, 649 (6th Cir. 2015)). To establish the third element, a plaintiff
must show “that the property deprivation resulted from either: (1) an established state
procedure that itself violates due process rights, or (2) a ‘random and unauthorized act’
causing a loss for which available state remedies would not adequately compensate the
plaintiff.” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 709 (6th Cir. 2005)). In
Parratt, the United States Supreme Court held that courts may dismiss procedural-due-
process claims “if the state provides an adequate postdeprivation remedy.” 451 U.S. at 538.
As explained by the United States District Court for the Western District of Tennessee:
Under the Parratt doctrine, “[c]ourts may dismiss a procedural due process
claim if the state provides an adequate postdeprivation remedy and (1) the
deprivation was unpredictable or random; (2) predeprivation process was
impossible or impracticable; and (3) the state actor was not authorized to take
the action that deprived the plaintiff of property or liberty.” Daily Servs.,
- 14 -
[LLC v. Valentino,]756 F.3d [893,] at 907 [6th Cir. 2014)] (quotation marks
omitted). “In this context, ‘unauthorized’ means that the official in question
did not have the power or authority to effect the deprivation, not that the act
was contrary to law.” Warren [v. City of Athens, Ohio,] 411 F.3d [697,] at
709-10 [(6th Cir. 2005)]. A plaintiff alleging “an established state procedure
that itself violates due process rights” does “not need to demonstrate the
inadequacy of state remedies.” Id. at 709. But for a plaintiff alleging random
and unauthorized acts, the “Parratt rule creates the requirement that plaintiffs
in such circumstances must prove that the post-deprivation process afforded
by the state is somehow inadequate to right the wrong at issue.” Macene [v.
MJW, Inc.,] 951 F.2d [700,] at 706 [(6th Cir. 1991)]. “The failure to so plead
in this circuit, therefore, renders a section 1983 complaint subject to
dismissal.” Watts v. Burkhart, 854 F.2d 839, 843 (6th Cir. 1988).
Sherman, 2017 WL 2589410, at *16.
In its March 25, 2021 order, the trial court held that “[n]either in the administrative
proceedings before the ALJ nor in this Court have the Browns provided analysis from the
record of the application of the [Parratt] doctrine.” In a footnote, the trial court clarified
that the Browns “provided no analysis and/or legal argument that the civil forfeiture
procedure in this case is inadequate to redress the alleged deprivation of the Browns’
property.” From our review, we agree. In the absence of any pleading alleging that the
forfeiture process offered by the State is inadequate, the trial court did not err in denying
the Browns attorney’s fees under § 1988(b) for Fifth and Fourteenth Amendment violations
under § 1983. Id.
Finally, the Browns request for appellate attorney’s fees is denied. As discussed
above, there is no basis for an award of attorney’s fees in this case.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order. The Browns’ request
for appellate attorney’s fees is denied, and the case is remanded for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the appeal
are assessed to the Appellants, Larry Brown and Chandra Brown, for all of which execution
may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
- 15 -