Wednesday, June 3, 2009

Absent owners not given notice that hearing would involve demolition of house; court cannot use contempt power to authorize demolition


Property owners appeal an order authorizing the City of Franklin to demolish a house on their property. Because we have determined that the procedure used by the city did not comply with due process, we reverse.

Opinion may be found at the TBA website:

“The hearing at which the court gave the city the authority to demolish the Hunters’ property was a hearing on a fourth contempt motion. In light of the posture of the case and the manner in which this action arose, the Hunters had no notice that the hearing on September 20, 2007, would involve a request by the city for permission to demolish their property. Rather, the issue before the court was whether the Hunters were in contempt for failing to comply with the court’s previous order. The city did not file any pleadings to have the property declared a nuisance or to request authority to have the property demolished.” Id.

“The city argues that it essentially amended its pleadings at the hearing when it asked the court for permission to demolish the property and the Hunters failed to object. Tenn. R. Civ. P. 15.02 authorizes amendment of the pleadings to conform with the proof if additional issues are “tried by express or implied consent of the parties.” This theory does not work here, however, because the Hunters were not present at the point when the city raised the issue of demolition and there is nothing in the record to suggest that they impliedly consented to the determination of that issue.” Id.

“A court’s contempt powers can be used to compel obedience to its orders and to punish those who willfully disobey those orders. See Tenn. Code Ann. §§ 16-1-102 and 29-9-102. We know of no authority, and the city cites none, under which a court is empowered to order the demolition of a house as a punishment for contempt of an order requiring inspection and repair of the house. Even if a court might have such authority under some circumstances, the due process concerns discussed above would prohibit the imposition of such a remedy when the litigant had no notice that such a penalty was being requested.” Id.