                                                                                       11/30/2018


               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              September 7, 2017 Session

CAITLIN J. GROVES ET AL. v. TENNESSEE DEPARTMENT OF SAFETY
                 AND HOMELAND SECURITY

               Appeal from the Chancery Court for Davidson County
                 No. 15-1225-IV    Russell T. Perkins, Chancellor
                     ___________________________________

                          No. M2016-01448-COA-R3-CV
                      ___________________________________


After his vehicle was seized, the owner filed a claim and request for hearing. After the
passage of thirty days following the filing of his claim, the owner moved to dismiss the
forfeiture, arguing that the Tennessee Department of Safety and Homeland Security had
failed to timely set his claim for a hearing. The Administrative Law Judge took the
motion to dismiss under advisement, but declined to set a hearing on the merits of the
forfeiture. The owner sought interlocutory review of the decision not to set a hearing on
the merits, which the Commissioner ultimately denied.               Shortly before the
Commissioner’s decision on the interlocutory appeal, the ALJ granted the owner’s
motion to dismiss and ordered the vehicle returned. The ALJ also denied the owner’s
request for attorney’s fees.      The owner petitioned for judicial review of the
Commissioner’s decision and later amended the petition to include a request for
declaratory relief. The chancery court dismissed the owner’s petition for judicial review
as moot. The court also dismissed the declaratory judgment action for improper joinder
of an original action with an administrative appeal. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Herbert S. Moncier, Knoxville, Tennessee, for the appellant, Gordon Groves.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Michael A. Meyer, Special Counsel Law Enforcement & Special
Prosecutions Division, for the appellee, Tennessee Department of Safety and Homeland
Security.
                                              OPINION

                                                   I.

       Just before midnight on January 18, 2015, Officer Coy Tucker of the Knoxville
Police Department received a call from dispatch that “a female . . . was passed out in the
driver’s seat of [a] vehicle” parked at a local restaurant. Upon arriving at the scene, the
officer observed Caitlin Groves in the driver’s seat of a parked Volkswagen Jetta, the
engine still running. According to Officer Tucker, Ms. Groves “was visibly intoxicated
with constricted pupils even in direct light, [exhibited] slurred speech, and [was in] a
dazed sleepy-like appearance.” Ms. Groves voluntarily submitted to field sobriety tests,
but she performed poorly. A check of her driver’s license revealed that Ms. Groves had a
2012 conviction for driving under the influence.

       Officer Tucker arrested Ms. Groves. He also seized her Volkswagen Jetta,
presenting her with a notice of property seizure. See Tenn. Code Ann. § 55-10-414(a)
(2017) (subjecting vehicles “used in the commission of a person’s second or subsequent
conviction” of driving or being in control of a vehicle under the influence of any
intoxicant “to seizure and forfeiture”). Later, the officer obtained a forfeiture warrant for
the vehicle.

       On February 4, 2015, counsel for Ms. Groves and her father, Gordon Groves,
(together, the “Claimants”) sent a letter to the Tennessee Department of Safety and
Homeland Security claiming an interest in the vehicle and requesting a hearing. See
Tenn. Code Ann. § 40-33-206(a) (2018) (“Any person asserting a claim to any property
seized pursuant to the provisions of law set out in § 40-33-201, . . . may within thirty (30)
days of being notified by the applicable agency that a forfeiture warrant has issued, file
with the agency a written claim requesting a hearing . . . .”). The Claimants co-owned the
Jetta.

       Despite having already made a claim, on March 16, 2015, the Department sent
each of the Claimants notice of the forfeiture warrant and of their right to claim an
interest in the Jetta. Not until May 26, 2015, did the Department notify them of the
hearing on their claim.

       Seven days before the hearing, which was scheduled for the afternoon of August
4, 2015,1 the Claimants’ counsel sent a letter to the administrative law judge assigned to
hear the case. In the letter, counsel referenced an enclosed motion to dismiss “the

        1
           This was the second setting of the hearing. Apparently, the parties agreed to a continuance of
the original hearing set for June 30, 2015.

                                                   2
forfeiture proceeding against the Groves’ vehicle.”2 Counsel also sought consideration of
a “petition to maintain a class [sic] for each other person listed on the Notice of Hearing
for 1:00 p.m. August 4, 2015.”3

       At the outset of the hearing, the ALJ explained that he would not be “able to
answer all those questions here and now based on the time of the filings, so [he]
anticipate[d] [he was] going to have to take [the issues] back to the office and do a little
research based on [the] two motions.” Counsel for the Claimants acknowledged that the
ALJ had “the ability to reserve this [issue] and study on it as long as [he] need[ed] and
not just the lunch hour.” Ultimately, the ALJ took both motions under advisement.

       In light of the pending motion to dismiss, the ALJ decided not to proceed with a
hearing on the merits. With the consent of the parties, the ALJ excused the officer who
had been asked to testify. As proceedings concluded, the following exchange took place
between the ALJ and counsel:

        ALJ: . . . I’ll take this under advisement, issue an order on the class issue as
        well as the motion to dismiss. And then from there, if the motion to dismiss
        is denied, we’ll get it set for a hearing on the merits.
        THE CLAIMANTS’ COUNSEL: Thank you, sir.
        ALJ: Thank you all.
        COUNSEL FOR THE DEPARTMENT: Thank you.
        THE CLAIMANTS’ COUNSEL: Could we establish a hearing on the
        merits now?
        ALJ: I’ll leave that to you and the Department if you would like to. It may
        be easier to wait just for scheduling purposes.
        THE CLAIMANTS’ COUNSEL: They got her car. That’s, you know, we
        don’t have --
        COUNSEL FOR THE DEPARTMENT: We don’t have an order yet.
        ALJ: I don’t know that you can without an order. And once I get my order
        out, obviously that day can be scheduled because if you prevail on your
        motion, there will be no hearing.
        THE CLAIMANTS’ COUNSEL: I understand.

      Two days later, the Claimants filed a “Petition for Interlocutory Appeal,” seeking
to appeal their “entitle[ment] to an immediate hearing on [their] contested case with the
Department of Safety where the Department of Safety continues to seize [their]
        2
            The administrative record on appeal does not include the motion to dismiss.
        3
          Although indicating an intention to argue the motions at 1 p.m., counsel appeared at 10 a.m.,
requesting that the petition to maintain a class action be heard at that time. Counsel submitted that the
motion to maintain a class action should be heard early “to protect people’s rights that would be affected
by the 10:00 o’clock docket if there were any findings or settlements or whatever.”
                                                      3
automobile.” See TENN. COMP. R. & REGS. 1340-02-02-.10(2). The Claimants
complained that the Department would “not set a hearing date or place the case on the
docket pending the ruling on the Motion to Dismiss.” As the Claimants explained,

       [o]bviously, leaving [their] case off the docket while the Motion to Dismiss
       is adjudicated creates new delay by, once the Motion to Dismiss is decided,
       [their] case will go to the end of the line of other cases that have been
       placed on the docket in the interim. On the other hand, if [their] contested
       case is placed on the docket now it will and should take precedence over
       other new cases being set. Of course, if the court grants the motion to
       dismiss [their] case would come off the set docket.

The ALJ granted the request for an interlocutory appeal.

        Later, on September 28, 2015, the ALJ entered an order granting the Claimants’
motion to dismiss but denying the petition to maintain a class action.4 The ALJ found
that, because it did “not set [the case] for hearing within the 30 day requirement found in
T.C.A. [§] 40-33-207,” the Department could not “affirmatively show[] by a
preponderance of the evidence that it strictly complied with the forfeiture statute.”
Accordingly, the ALJ ordered the immediate return of the seized vehicle. The ALJ
further concluded that, “[s]ince the Department did not act in bad faith, it [wa]s not
required to pay attorney’s fees.”

       On October 5, 2015, the Commissioner entered an order dismissing the
interlocutory appeal. Apparently unaware that the ALJ had already granted the motion to
dismiss, the Commissioner also ordered the ALJ to render a decision within ninety days
of the date of the August 4 hearing.

        On October 12, 2015, in the Chancery Court for Davidson County, Tennessee, the
Claimants filed a “complaint” for judicial review of the Commissioner’s decision. See
Tenn. Code Ann. § 4-5-322(a)(1) (Supp. 2018). Even though their motion to dismiss had
already been granted, the complaint alleged “[t]o date, [the] ALJ . . . has not rendered an
Order on [the Claimants’] Motion to Dismiss.” The Claimants also complained they
were deprived of their vehicle and that the Department’s refusal to set their case for a
hearing until after the ALJ ruled on the motion to dismiss violated their constitutional
rights. In their prayer for relief, among other things, they sought “dismiss[al] of the
forfeiture proceedings against [their] vehicle” or, in the alternative, a “remand to the
[Department] with instructions that [it] to [sic] dismiss this case.”



       4
           Mr. Groves does not appeal the denial of the petition to maintain a class action.

                                                      4
       On October 22, 2015, the Claimants filed an amendment to their complaint. In the
amendment, the Claimants acknowledged that their vehicle was returned to them on
October 20, 2015. They also added a “claim for declaratory judgment,” requesting that
the court “declare that the [Department] [wa]s required to require its hearing officers to
render rulings on motions within thirty (30) days . . . .”

       On the Department’s motion, the chancery court dismissed the administrative
appeal. The court found that the appeal was moot and that the Claimants did not have
standing to pursue the appeal. In its ruling, the court emphasized that the Claimants did
not appeal the ALJ’s denial of their request for attorney’s fees under Tennessee Code
Annotated § 4-5-325 (2015).

       The court later dismissed the claim for declaratory relief. The court cited multiple
reasons for the dismissal. It concluded that joining an administrative appeal with an
original action was impermissible, that the Claimants did not exhaust their administrative
remedies, that they did not have standing to bring a declaratory judgment action
challenging the Department’s procedural rule, that the case was moot, and that a
declaratory judgment from the court would constitute an advisory opinion. The court
also denied the Claimants’ request for an award of attorney’s fees.

                                                    II.

        Mr. Groves appeals, raising multiple issues for our review.5 The issues relate
either to the dismissal of the petition for judicial review or the dismissal of the claim for
declaratory relief or both.

                         A. DISMISSAL OF PETITION FOR JUDICIAL REVIEW

        The doctrine of justiciability prevents courts from adjudicating cases that do not
involve a “genuine and existing controversy.” McIntyre v. Traughber, 884 S.W.2d 134,
137 (Tenn. Ct. App. 1994). “Our courts will not render advisory opinions or decide
abstract legal questions.” Id. (citations omitted). A case must be justiciable when it is
filed and throughout the course of litigation, including during the appeal. Id. We decline
to hear a case if it does not “involve a genuine, continuing controversy requiring the
adjudication of presently existing rights.” Alliance for Native Am. Indian Rights in Tenn.,
Inc. v. Nicely, 182 S.W.3d 333, 338 (Tenn. Ct. App. 2005).

       A moot case is no longer justiciable because it “has lost its character as a present,
live controversy.” McIntyre, 884 S.W.2d at 137. Generally, a case is moot when it “no
longer serves as a means to provide relief to the prevailing party.” Id. There are only a
few recognized exceptions to the mootness rule: (1) the issue is of great public

       5
           Ms. Groves also appealed, but we granted her leave to dismiss her appeal.
                                                     5
importance or affects the administration of justice; (2) the challenged conduct is capable
of repetition and will likely evade judicial review; (3) the primary subject of the dispute
has become moot, but collateral consequences to one of the parties remain; and (4) the
defendant voluntarily stops engaging in the challenged conduct. Norma Faye Pyles
Lynch Family Purpose LLC v. Putnam Cty., 301 S.W.3d 196, 204 (Tenn. 2009). Only if
the issue falls within a recognized exception do we have discretion to reach the merits of
the appeal. Alliance for Native Am. Indian Rights, 182 S.W.3d at 339.

        Here, in Mr. Groves’s petition for judicial review, he sought “dismiss[al of] the
forfeiture proceedings against [the Claimants’] vehicle,” or, alternatively, “remand [of]
this case to the [Department] with instructions that [the Department] to [sic] dismiss this
case.” He complained that the Department refused to place his case on the docket for a
hearing on the merits while it “continue[d] to seize [sic] [his] vehicle.” But as he
conceded in his amendment to the petition, Mr. Groves’s vehicle was returned to him.
Thus, his case “no longer serve[d] as a means to provide [him] relief.”6

        On appeal, Mr. Groves argues that his case was not moot because a full hearing
was still necessary. According to him, the return of his car only afforded him partial
relief, and a full hearing was necessary for him to receive attorney’s fees under
Tennessee Code Annotated § 4-5-325(a). Mr. Groves asserts that it was plain error for
the ALJ to prematurely “imbed[] a § 4-5-325(a) denial of fees and costs . . . without
notice or [Mr. Groves] having a meaningful opportunity to be heard at a meaningful
time.” Mr. Groves further complains that the ALJ “blindsided” him by “imbedding” its
ruling on attorney’s fees in the order of dismissal.

       As an initial matter, we disagree with Mr. Groves’s characterization of the
proceedings below. Mr. Groves specifically requested attorney’s fees in his petition to
maintain a class action that was heard contemporaneously with the motion to dismiss.
After the ALJ denied attorney’s fees in its September 28, 2015 order of dismissal,
Mr. Groves filed a motion for attorney’s fees on October 19, 2015.7 In this motion,
Mr. Groves claimed that “[i]n the motion [to dismiss], [the Claimants] moved for
attorney fees and costs” but that “[t]he order [granting the motion to dismiss] did not
address [their] claims for attorney fees and cost.” The record refutes this statement as the
order of dismissal states that the Department “is not required to pay attorney’s fees.” We

        6
          Mr. Groves also alleges that all of the recognized exceptions to the mootness doctrine apply in
this case. We disagree. Even if they did, we decline to exercise our discretion to consider the merits of
the appeal. See Alliance for Native Am. Indian Rights, 182 S.W.3d at 339.
        7
           The motion was essentially a motion to reconsider, which was untimely filed. See Tenn. Code
Ann. § 4-5-317(a) (2015) (“Any party, within fifteen (15) days after entry of an initial or final order, may
file a petition for reconsideration, stating the specific grounds upon which relief is requested.”). The ALJ
denied this request.

                                                     6
fail to see how Mr. Groves was “blindsided” by the order of dismissal addressing the very
relief he requested.

       As the chancery court emphasized, Mr. Groves did not raise the denial of
attorney’s fees as an issue in his petition for judicial review. But even if this issue was
not waived, the statute relied on by Mr. Groves for payment of attorney’s fees did not
authorize such an award in these circumstances. Under Tennessee Code Annotated § 4-
5-325(a),

       (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) (emphasis added). 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,
primarily so that he could take steps to protect his interest as a co-owner.

                B. DISMISSAL OF THE DECLARATORY JUDGMENT ACTION

       The court also dismissed Mr. Groves’s declaratory judgment action for, among
other reasons, improper joinder of an original action with an administrative appeal.
Thirty-five years ago, this Court “heartily condemn[ed] that which appear[ed] . . . to be a
growing practice, i.e., the joinder of an appeal with an original action and the
simultaneous consideration of both at the trial level.” Goodwin v. Metro. Bd. of Health,
656 S.W.2d 383, 386 (Tenn. Ct. App. 1983). As we explained,

       such procedure is inimical to a proper review in the lower certiorari Court
       and creates even greater difficulties in the Court of Appeals. The necessity
       of a separation of appellate review of a matter and trial of another matter
       ought to be self evident. In the lower Court one is reviewed under
       appropriate Appellate rules and the other is tried under trial rules. In this
       Court our scope of review is dependent upon the nature of a proceeding. In
       this case one matter would be limited by rules of certiorari review and the
                                              7
       other would be reviewed under 13(d), Tennessee Rules of Appellate
       Procedure. Like water and oil, the two will not mix.

Id.; see also Universal Outdoor, Inc. v. Tenn. Dep’t of Transp., No. M2006-02212-COA-
R3-CV, 2008 WL 4367555, at *9 (Tenn. Ct. App. Sept. 24, 2008) (“A direct or original
action cannot be brought in conjunction with an action that is appellate in nature, such as
judicial review under the APA or common law writ of certiorari.”); State ex rel. Byram v.
City of Brentwood, 833 S.W.2d 500, 502 (Tenn. Ct. App. 1991) (“[I]t is impermissible to
join an appeal from an action of a board with an original action in the trial court.”).
When faced with both an original action and an action for judicial review, courts
generally dismiss the original action. See, e.g., State v. Farris, No. W2017-00438-COA-
R3-CV, 2018 WL 1225746, at *11-12 (Tenn. Ct. App. Mar. 9, 2018), perm. app. denied,
(Tenn. July 19, 2018) (affirming the dismissal of plaintiff’s regulatory taking claim
because he “sought . . . an appellate review,” so “his claims invoking the original
jurisdiction of the chancery court, including his regulatory taking claim[,] could not be
joined in th[e same] proceeding”); Tenn. Envtl. Council v. Water Quality Control Bd.,
250 S.W.3d 44, 58-59 (Tenn. Ct. App. 2007); Winkler v. Tipton Cty. Bd. of Educ., 63
S.W.3d 376, 383 (Tenn. Ct. App. 2001); Goodwin, 656 S.W.2d at 387. But cf. Wimley v.
Rudolph, 931 S.W.2d 513, 515-16 (Tenn. 1996) (allowing plaintiff to seek attorney’s fees
under 42 U.S.C. § 1983 in a petition for judicial review because she “sought a remedy,
not available under the Uniform Administrative Procedures Act, but not inconsistent with
the relief sought thereunder” but noting that “[h]ad [she] sought to join a claim for
[monetary, declaratory, or injunctive] relief under Section 1983 which were inconsistent
to remedies available in a petition for judicial review under the Uniform Administrative
Procedures Act, the state’s estoppel claim would have had merit”).

        In light of this authority, the chancery court did not err in dismissing Mr. Groves’s
declaratory judgment action. Here, Mr. Groves impermissibly attempted to join a
declaratory judgment action with his petition for judicial review. The fact that the
petition for judicial review was dismissed first, leaving only the declaratory judgment
action before the court, does not change our conclusion. See Davis v. Tenn. Dep’t of
Emp’t Sec., 23 S.W.3d 304, 316 (Tenn. Ct. App. 1999) (opinion on petition for rehearing)
(citing State ex rel. Byram and Goodwin to support the conclusion that “the trial court did
not err by declining to reinstate Mr. Davis’s civil rights claim after it dismissed his
petition for judicial review”); State ex rel. Byram, 833 S.W.2d at 502 (holding that
plaintiffs’ “claims invoking the original jurisdiction of the trial court” that were joined
with their appeal of a board’s decision “should have been dismissed at the outset” even
though the trial court “ultimately dismissed” them).




                                             8
                                           III.

       Based on the foregoing, we affirm the chancery court’s dismissal of the case in all
respects. This case is remanded for further proceedings as may be necessary and are
consistent with this opinion.


                                                  _________________________________
                                                  W. NEAL MCBRAYER, JUDGE




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