Note: This story was last updated at 12:25 p.m.
CLINTON—A court has dismissed a case that once called for a $400,000 fine against the owner of three now-vacant Applewood Apartments buildings on Hillside Road in Oak Ridge.
Charges against the original defendant, former Applewood Apartments manager Tammy Sandlin, have been dismissed, and she is the only properly named defendant in the complaint, Anderson County Circuit Court Judge Don R. Elledge said in a dismissal order filed Wednesday, June 21.
The Tennessee Court of Appeals had issued an opinion on October 15, 2015, that vacated, or voided, the $406,520 judgement against Applewood Apartments owner Joseph J. Levitt Jr. because he had not been effectively added as a defendant in the city’s lawsuit, Elledge said.
At that time, the Court of Appeals remanded the case, or sent it back to, Anderson County Circuit Court in Clinton for further proceedings, “including the filing and serving of an amended complaint or city warrant against Mr. Levitt,” Elledge said in his order to dismiss.
The Court of Appeals decision essentially said that Levitt has to be given a chance to defend himself, Elledge said during a motion hearing in Circuit Court on Friday, June 9. A jury trial had been scheduled for March 9, 2018. The City of Oak Ridge is the plaintiff.
But no amended complaint has been filed by the city since the Court of Appeals decision almost two years ago, and Levitt has never been served with an amended complaint, Elledge said during the June 9 motion hearing.
That was the argument made earlier by Knoxville attorney James A.H. Bell, designated as limited counsel for Levitt, in a motion to dismiss filed April 3.
“Mr. Levitt has never been served with process or an amended complaint or city warrant naming Mr. Levitt as a defendant in this action or for the allegations that were made against Tammy Sandlin,” Bell said in his motion to dismiss. “There being no formal complaint filed against Mr. Levitt, any complaint on file with this court fails to state a claim against Mr. Levitt upon which relief can be granted.”
The only citation is a complaint filed earlier in Oak Ridge City Court, Bell said during the June 9 motion hearing. The City Court cases listed Sandlin as the defendant.
During the hearing last month, Elledge said he was frustrated with the delay. The judge said he had assumed an amended complaint would be filed.
“It hasn’t been filed,” Elledge said.
The city’s complaint against Levitt was dismissed “without prejudice,” meaning further legal filings are possible. They are not barred by the statute of limitations, Elledge said.
But any additional filings would have to be made in Oak Ridge City Court, where the case originally started before being appealed to Anderson County Circuit Court and then to the Tennessee Court of Appeals—and then remanded back to Anderson County Circuit Court.
Oak Ridge City Attorney Ken Krushenski declined to comment after the motion hearing, citing pending litigation.
The city had filed a motion to amend on April 6 to add Levitt as a defendant in its lawsuit. In that motion, Krushenski said Oak Ridge City Judge Robert McNees III had identified Levitt as the actual owner of the apartments in a footnote to an interim order entered in October 2009, and McNees had referred to Sandlin as the apartment manager and operator. An Anderson County Circuit Court order from February 2014 also included Levitt as owner of the apartments, Krushenski said.
Also, Levitt has participated in all phases of the litigation, including trials in Oak Ridge City Court, Anderson County Circuit Court, and the Tennessee Court of Appeals as both attorney and property owner, and he “would not be prejudiced by this amendment,” Krushenski said. Levitt had earlier represented Sandlin, the apartment manager, in court hearings. Levitt has also represented himself in hearings on Applewood Apartments buildings before the Oak Ridge Board of Building and Housing Code Appeals.
Elledge said the case, which is now more than eight years old, is “very frustrating” to the court and all parties. The case had been continued based on Levitt’s assertions that he needed more time to fix the properties, Elledge said.
“Just give me a little more time, judge,” Elledge said while characterizing Levitt’s arguments. “Just give me a little more time.”
The case started with inspections and alleged code violations at three Applewood Apartments buildings at 182, 184, and 186 Hillside Road in March 2009. Those buildings are near the intersection of Hillside Road and Highland Avenue in the Highland View neighborhood. The inspections were done by the Oak Ridge Code Enforcement Division with help from Corum Engineering of Knoxville.
Alleged violations included, as examples, an apartment gutted by fire; a need to install an exterior door, replace a living room floor, and complete plumbing and window repairs; and replace defective roofing, and secure or remove electrical wiring hanging down in a basement. Other alleged violations included mold, a sagging ceiling, broken toilet seat, and broken floor joists.
There were three separate hearings on the alleged code violations at the three buildings in Oak Ridge City Court in late 2009 and early 2010. In a final order issued February 16, 2011, McNees, the city judge, found 98 violations out of 171 alleged violations at the three buildings. Some of the alleged violations had been dismissed by the court, and others were dismissed by the city because they had been “remedied by the defendant,” Sandlin, the former apartment manager.
Each violation not repaired as of the February 2011 final order would be assessed a $50 fine and court costs for each day that the violation continued, starting with the day an interim order was entered for each of the three buildings, McNees said.
The City Court’s decision was appealed to Anderson County Circuit Court in February 2011.
Inspections in 2012 and 2014 found some continued code violations, although inspectors were not allowed to access apartment interiors, according to court documents.
After a non-jury trial on October 20, 2014, Elledge, the Circuit Court judge, approved the $406,250 fine against Levitt for 25 code violations at $25 per day per violation for 650 days.
Levitt appealed to the Tennessee Court of Appeals in Knoxville in November 2014, after Elledge issued his final order.
In a judgement filed October 21, 2015, three appellate court judges—J. Steven Stafford, D. Michael Swiney, and Brandon O. Gibson—vacated, or voided, the decision of the Anderson County Circuit Court and sent it back there for further proceedings.
In its summary, the Court of Appeals said the city had earlier moved to amend the case, which was initially filed against Sandlin, to add Levitt as a defendant.
“The case proceeded to trial,” the judgement said. “After the city closed its proof, the trial court (Circuit Court) noticed that the purported owner of the property (Levitt) had not been been properly made a party to the action. Accordingly, the trial court granted the city’s motion to amend. Although the purported owner moved for a mistrial and/or a continuance, the trial court proceeded on to rule against the purported owner for several violations of the local building code.”
That’s when Levitt, who had now been named defendant/owner of Applewood Apartments, appealed to the Court of Appeals.
“We vacate the judgement of the trial court and remand for further proceedings to allow the purported owner of the properties an opportunity to meaningfully respond to the allegations against him,” the Court of Appeals said in its judgement in October 2015.
The appeals court recognized that Levitt had been incorporated in footnotes as owner of the properties in interim orders in Oak Ridge City Court. And a final City Court order that summarized those interim orders found Levitt guilty of the 98 violations of the International Property Maintenance Code and fined him the $50 per violation per day from the dates of each interim order.
“Nothing in the final order, however, indicated that Mr. Levitt was added as an additional defendant,” the Court of Appeals judgement said.
About a year after the appeal from City Court to Circuit Court, in February 2012, the city filed a motion to amend to add Levitt as a defendant, the appellate court said.
But, “no amended complaint or city warrant was attached to the city’s motion,” the Court of Appeals said. “Mr. Levitt was served with a copy of the motion as ‘attorney for defendant/appellant.’ However, nothing in the record indicates that he was served with process as a defendant to the action. Despite the motion to amend, the case continued to proceed against Ms. Sandlin as the sole defendant.”
The order issued by Elledge on November 5, 2014, granted Oak Ridge’s motion to amend to add Levitt as a party-defendant. But it was the first document in the record to name Levitt as a party-defendant, the appellate court said. The order also dismissed all allegations against Sandlin, leaving Levitt as the sole defendant, the appellate court’s judgement said.
Besides finding Levitt guilty of the 25 code violations, the Anderson County Circuit Court had also found that he had failed to comply with court orders by not allowing apartment interiors to be inspected. He was assessed the fine of $25 per violation per day for 650 days, for the total judgement of $406,250.
“Because Mr. Levitt was not afforded an appropriate opportunity to respond after the trial court granted the city’s motion to amend (adding him as a defendant), we must vacate the judgement against him and remand for further proceedings, including the filing and serving of an amended complaint or city warrant against Mr. Levitt, and if necessary, a new trial in which Mr. Levitt is permitted an opportunity to contest the claims against him.”
In his June 21 dismissal order, Elledge pointed out that the charges against Sandlin had been dismissed. Since she was the only properly named defendant, “this court is divested of jurisdiction,” Elledge said.
“As a result of the foregoing, the court found that there is no properly named party against which the plaintiff (the City of Oak Ridge) may proceed, and Mr. Levitt’s motion for dismissal is hereby granted, and the city’s motion to amend (to add Levitt as a defendant) is overruled.”
At that time, Levitt said he is 85 and has had health problems, and he’s trying to clean up his estate. Most of his estate will probably go to the University of Tennessee and nonprofit organizations, Levitt said.
It’s not been clear what the next step might be at Applewood Apartments, whether a sale or demolition.
“I own them,” Levitt said last fall. “I can do with them as I please.”
In April, the Oak Ridge Board of Building and Housing Code Appeals rejected a request from Levitt for more time, or even a waiver, for making exterior repairs at the 13 Applewood Apartments buildings. Levitt had asked for a waiver or one-year extension for time to paint or stain the exteriors of the vacant apartment buildings.
Read some of the key court documents here:
- Applewood Apartments Civil Appeal To Circuit Court February 25 2011
- Applewood Apartments Amended Final Order and Judgement November 26 2014
- Applewood Apartments Court of Appeals Judgement and Mandate December 30 2015
- Applewood Apartments Motion to Dismiss April 3 2017
- Applewood Apartments Motion to Amend April 6 2017
- Applewood Apartments Order of Dismissal June 21 2017
See previous Applewood Apartments stories here.
More information will be added as it becomes available.
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