                                                                                                       12/15/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 15, 2017 Session

       ORION FEDERAL CREDIT UNION v. FITZGERALD BREWER

                     Appeal from the Circuit Court for Shelby County
                       No. CT-005066-16 James F. Russell, Judge
                        ___________________________________

                              No. W2017-00944-COA-R3-CV
                          ___________________________________

This is a post-foreclosure unlawful detainer action in which Orion Federal Credit Union,
after purchasing the property at foreclosure, was awarded a judgment for possession of
the property by the general sessions court. The prior owner refused to surrender the
property and appealed the judgment for possession to the circuit court. Orion filed a
motion for judgment on the pleadings, which was granted. The trial court also issued
Orion a writ of immediate possession, and Orion took possession of the property. The
prior owner appeals the trial court’s grant of the motion for judgment on the pleadings.
Because we have determined the case is moot, we dismiss.

                 Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and JOE G. RILEY, SP. J., joined.

Archie Sanders, Memphis, Tennessee, for the appellant, Fitzgerald Brewer.

Michael C. Patton, Memphis, Tennessee, for the appellee, Orion Federal Credit Union.

                                              OPINION

                    BACKGROUND AND PROCEDURAL HISTORY

       This appeal arises from a post-foreclosure, unlawful detainer action, which Orion
Federal Credit Union (“Appellee,” or “Orion”) filed to gain possession of a residential
property located in Bartlett, Tennessee (the “Subject Property”). Before the foreclosure
and subsequent sale, Fitzgerald Brewer (“Appellant”) owned the Subject Property. 1 The


        1
           Brewer was the owner of record of the property and the signatory on the deed of trust to Orion
prior to the foreclosure.
foreclosure sale of the Subject Property occurred on October 7, 2016, and Orion was the
successful bidder at the sale. However, Mr. Brewer refused to surrender the premises.

       On October 17, 2016, Appellee initiated this action by filing a detainer warrant in
the Shelby County General Sessions court.2 According to the warrant, on October 21,
2016, the resident of the Subject Property was served with the detainer warrant. 3

       On November 22, 2016, after a hearing, the general sessions court granted
possession to Orion, and Mr. Brewer timely appealed to the circuit court. Mr. Brewer
continued to refuse to surrender the Subject Property. On February 3, 2017, Orion filed a
“Motion to Compel Defendant to Pay Rent During Pendency of Appeal,” and on
February 23, 2017, it filed a motion for judgment on the pleadings and a memorandum in
support of its motion. In the memorandum, Appellee alleged that it had initiated
foreclosure proceedings against Mr. Brewer and the Subject Property in September of
2016. Orion also stated that it purchased the Subject Property at foreclosure, and that the
property was transferred by trustee’s deed to Orion at the conclusion of the successful
foreclosure proceedings. Orion averred that it was compelled to initiate this unlawful
detainer action to gain possession of the Subject Property because Mr. Brewer had failed
to vacate the premises despite the foreclosure. Although Appellant opposed Orion’s
motion for judgment on the pleadings, on April 7, 2017, the circuit court granted Orion’s
motion and dismissed Mr. Brewer’s appeal from the general sessions court.

       Also, on April 7, 2017, the circuit court issued a writ of immediate possession to
Orion. On April 8, 2017, Orion took possession of the Subject Property. Mr. Brewer
timely appealed the circuit court’s grant of Orion’s motion for judgment on the pleadings.

                                    ISSUES PRESENTED

   Mr. Brewer raises the following issue for our review:

    Whether the trial court properly granted Plaintiff’s Motion for Judgment on
     the pleadings?

   Appellee, Orion, in turn, raises the following issues:

    Whether the issues before the Court are moot as Mr. Brewer is no longer in
     possession of the Subject Property.
       2
         A detainer warrant is “an action to regain possession of the premises and recoup damages.”
Johnson v. Hopkins, 432 S.W.3d 840, 842 (Tenn. 2013).
       3
          According to the Appellee’s brief, it was Mr. Brewer’s brother who continued to occupy the
property after the foreclosure.

                                               -2-
     Whether the trial court properly granted a Judgment for Possession to
      Orion?

                                     STANDARD OF REVIEW

      “Determining whether a case is moot is a question of law.” See Harriet Tubman
Dev./CHA v. Locklin, 386 S.W.3d 239, 242 (Tenn. Ct. App. 2012) (quoting All. for
Native Am. Indian Rights in Tenn., Inc. v. Nicely, 182 S.W.3d 333, 338–39 (Tenn. Ct.
App. 2005)).
                                     ANALYSIS

        We will first consider whether this case is rendered moot because Mr. Brewer has
surrendered the premises to Orion pursuant to the trial court’s judgment. Appellant’s
counsel conceded in his reply brief and at oral argument that his client has surrendered
possession of the premises to Orion. It is also undisputed that Orion has sold the property
to a third party.4 Appellant argues that, regardless, the case is not moot. In the alternative,
Appellant argues that this Court should decline to hold the case is moot and apply the
“collateral consequences” doctrine. We disagree.

        Justiciability is a threshold inquiry. See City of Memphis v. Hargett, 414 S.W.3d
88, 95 (Tenn. 2013) (citing UT Med. Grp., Inc., v. Vogt, 235 S.W.3d 110, 119 (Tenn.
2007)). The court may only decide issues that place some real interest in dispute, and are
not merely “theoretical or abstract.” Id. (citing Colonial Pipeline Co. v. Morgan, 263
S.W.3d 827, 838 (Tenn. 2008); Norma Faye Pyles Lynch Family Purpose LLC v. Putnam
Cty., 301 S.W.3d 196, 203 (Tenn. 2009)). “A justiciable issue is one that gives rise to a
genuine, existing controversy requiring the adjudication of presently existing rights.” Id.
(citation and internal quotation marks omitted). Mootness is the justiciability doctrine
implicated in this appeal. Because we must first consider questions of justiciability, we
turn to consider whether Mr. Brewer’s surrender of the Subject Property, and its
subsequent sale render this case moot.

      The Tennessee Supreme Court recently explained the doctrine of mootness as
follows:

        To be justiciable, an issue must be cognizable not only at the inception of
        the litigation but also throughout its pendency. An issue becomes moot if
        an event occurring after the commencement of the case extinguishes the

        4
          Tennessee Rule of Evidence 201(b)(2) allows this court to take judicial notice of facts that are
“not subject to reasonable dispute” and “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” See Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct.
App. 2005). “The result of taking judicial notice of a fact is the establishment of the admission of that fact
into evidence.” Id. at 291. Although these undisputed facts arose post-judgment, we take judicial notice
that Appellant has vacated the premises, and Orion has sold that property.
                                                    -3-
       legal controversy attached to the issue, or otherwise prevents the prevailing
       party from receiving meaningful relief in the event of a favorable judgment.
       This Court has recognized a limited number of exceptional circumstances
       that make it appropriate to address the merits of an issue notwithstanding its
       ostensible mootness: (1) when the issue is of great public importance or
       affects the administration of justice; (2) when the challenged conduct is
       capable of repetition and evades judicial review; (3) when the primary
       dispute is moot but collateral consequences persist; and (4) when a litigant
       has voluntarily ceased the challenged conduct.

Id. (internal citations and quotation marks omitted). It is Appellant’s position that this
appeal is not moot, and that, if it is moot, the court should apply the “collateral
consequences” exception and proceed to analyze the merits of Appellant’s claim.

       As previously mentioned, this unlawful detainer action was initiated by Orion for
the purpose of gaining possession only of the Subject Property following its purchase of
the subject property at foreclosure. “When a detainer action is ‘brought against the maker
of a deed of trust who, after default and foreclosure, refused to surrender possession of
the property,’ the party seeking to gain possession by way of a summary detainer
proceeding must rely on the action of ‘unlawful detainer.’” Biles v. Roby, No. W2016–
02139–COA–R3–CV, 2017 WL 3447910, at *2 (Tenn. Ct. App. Aug. 11, 2017) (quoting
CitiFinancial Mortg. Co. v. Beasley, No. W2006–00386–COA–R3–CV, 2007 WL 77289,
at *7 (Tenn. Ct. App. Jan. 11, 2007)). The legislative intent behind the creation of
unlawful detainer actions was to provide a streamlined, inexpensive, summary procedure
to determine the rights to possession of land. Beasley, 2007 WL 77289, at *6 (citing
Newport Hous. Auth. v. Ballard, 839 S.W.2d 86, 89 (Tenn. 1992)). The sole purpose of
an unlawful detainer action, including in the case at issue, is for the rightful party to
obtain a judgment for possession of the Subject Property and obtain a writ of possession
to gain control of the Subject Property from an unlawful occupant. Id. at *5-6 (“FED
actions cannot be resolved in favor of a claimant when title, if bearing directly on his
immediate right to possession, is questionable.”)

        Orion asserts that Mr. Brewer’s appeal—based solely on his claim that the motion
for judgment on the pleadings was granted in error—is moot because the controversy that
initiated Orion’s unlawful detainer action no longer exists. Specifically, Orion argues that
Mr. Brewer is no longer in possession of the Subject Property, and the Subject Property
has been sold to a bona fide purchaser. Mr. Brewer does not dispute these facts, but
argues that we should reverse the trial court’s grant of Orion’s motion for judgment on
the pleadings. We note that Mr. Brewer filed no counterclaim in the Circuit Court in the
proceedings below. His argument on appeal is merely that we should reverse the trial
court because the trial court made a procedural error and that we should not consider the
case to be moot because of “collateral consequences” to Mr. Brewer. Again, we
emphasize, an unlawful detainer action concerns only possession of the property. Mr.
                                            -4-
Brewer has vacated the property and a bona fide purchaser has taken possession. These
facts are sufficient to show that the case has lost its controversial character. “A case will
be considered moot if it no longer serves as a means to provide some sort of judicial
relief to the prevailing party.” See Norma Faye Pyles Lynch Family Purpose LLC v.
Putnam Cty, 301 S.W.3d 196, 204 (Tenn. 2009) (citation omitted). Mr. Brewer may have
other remedies at law. However, there is no remedy available to Mr. Brewer in this
unlawful detainer action, even if this Court reversed the trial court’s grant of Orion’s
motion for judgment on the pleadings.

       Finally, relying on Harriet Tubman, Mr. Brewer argues that this case fits within
the “collateral consequences” exception to the general applicability of the mootness
doctrine because, he argues, there are financial consequences to his eviction. Harriet
Tubman, 386 S.W.3d at 243. In Harriet Tubman, the Public Housing Authority (PHA)
filed an unlawful detainer action against a family residing in public housing after the
family was involved in an incident with their neighbors. Id. at 241. The PHA succeeded
at a bench trial, and the family vacated the residence. Id. at 241–42. The family then
appealed to this Court claiming that the decision to evict them was arbitrary and without
due process, but the PHA claimed that the appeal was moot because the family had
already vacated the premises. Id. at 242–43. Relying on the “collateral consequences”
exception, this Court declined to hold that the case was moot and proceeded to evaluate
the merits of the family’s claim. Id. at 243. We explained that the family would not be
permitted to live in public housing for five years if the eviction was upheld because the
case was dismissed as moot, and this justified proceeding to evaluate the merits of their
claim. Id.

       Relying on Harriet Tubman, Appellant argues that this Court should apply the
“collateral consequences” exception to his appeal. Appellant cites consequences
including damage to his credit rating, consequential damages associated with having to
move, and the loss of equity in the property. We emphasize that this unlawful detainer
action is an entirely separate proceeding from the preceding foreclosure action. Any such
consequences arising from the foreclosure are not implicated in this appeal. Accordingly,
we decline to hold that this case falls within the “collateral consequences” exception, and
conclude that this case is moot.

                                     CONCLUSION

       Based on our finding that the appeal is moot, it is dismissed. Costs of the appeal
are assessed against Appellant, Fitzgerald Brewer, and his surety, for all of which
execution may issue if necessary.


                                                  _________________________________
                                                  ARNOLD B. GOLDIN, JUDGE
                                            -5-
