JOSEPH O’SHIELDS, ET AL. v. CITY OF MEMPHIS, ET AL.
No. W2016-01172-COA-R3-CV
IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
January 17, 2017 Session; Filed February 23, 2017
ARNOLD B. GOLDIN, J.
Appeal from the Chancery Court for Shelby County; No. CH-12-1233-1; Walter L. Evans, Chancellor
The issue on appeal in this case is whether the City of Memphis unlawfully assessed a tax on real property located in a newly annexed area of the city in 2012. The plaintiffs are property owners in the annexed area who argue that the city had no authority to assess property taxes in the area for 2012 because its annexation of the area took effect after January 1, 2012. The trial court concluded that the tax was lawful because the City’s annexation of the area took effect before January 1, 2012 and granted summary judgment in favor of the defendants. Discerning no error, we affirm.
ARNOLD B.
Richard L. Winchester, Jr., Memphis, Tennessee, for the appellants, Joseph O’Shields, Tommie Isom, Warren Riggs, Roy Fisk, and Kenneth Netherton.
Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellees, City of Memphis and Marie Kirk Owens.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
On November 20, 2001, the Memphis City Council passed an ordinance to
On July 5, 2011, the Cochran I plaintiffs filed a second quo warranto action to contest the annexation ordinance (”Cochran II“). On May 16, 2012, the trial court entered an order dismissing Cochran II for failure to state a claim upon which relief can be granted. The Cochran II plaintiffs appealed, and this Court affirmed the dismissal. See Cochran v. City of Memphis, No. W2012-01346-COA-R3-CV, 2013 WL 1122803 (Tenn. Ct. App. Mar. 19, 2013).
The present case was initiated on July 31, 2012 when Joseph O’Shields and other owners of property in South Cordova, individually and on behalf of all others similarly situated, filed a complaint against the City and Marie Kirk Owens, in her capacity as treasurer, seeking a refund of property taxes collected from property owner’s in the annexed area by the City in 2012 as well as other costs and fees.1 The plaintiffs asserted that the City had no legal authority to assess or collect taxes on real property located in South Cordova in 2012 because the area was not within the City’s limits on January 1, 2012. See
Following a period of discovery, both parties filed motions for summary judgment. In support of their motion, the defendants submitted portions of the record from Cochran I demonstrating that a final judgment was entered in that case on June 28, 2011, and no appeal was taken therefrom.
Q: When does this annexation become official?
A: The Memphis City Council officially annexed South Cordova in October 2001. Although action was delayed because of ongoing litigation through May 15, 2012, the Courts ruled that the annexation is effective as of January 1, 2012.
Q: I recall some mention of annexation some years ago, but why am I just hearing about our community being officially annexed now?
A: The 2001 annexation was delayed by the lawsuit filed by the residents of the area. This original lawsuit was dismissed by the courts on June 28, 2011 and annexation was official as of July 30, 2011 when the plaintiffs did not file an appeal within the 30 days allowed. By law, annexation was to be fully implemented starting January 1, 2012. However, a second lawsuit was filed by the same residents of the area on July 5, 2011. This second lawsuit was not decided until May 15, 2012. Because of the delay caused by these lawsuits, July 1, 2012 is now the official start date for operations.
Q: Can’t this be put off until next year?
A: The City annexed the South Cordova area on December 4, 2001. The residents of the area contested the annexation by a timely filed lawsuit. That lawsuit was finally concluded June 28, 2011 and pursuant to Tennessee law, South Cordova residents are citizens of Memphis. Also, pursuant to Tennessee law, properties within the area became subject to City of Memphis taxes on January 1, 2012. The tax was assessed that date but will be collected in and used for the fiscal year beginning July 1, 2012, the new fiscal year.
. . .
Q: When will I be taxed by the City of Memphis?
A: Residents and businesses in the annexed area will receive a City of Memphis property tax bill for the full 2012 tax year. Property tax bills for 2012 will be mailed to property owners by the third week of July 2012. If you have questions regarding your tax bill please contact the City Treasurer’s Office . . . or call the Mayor’s Citizen’s Service Center[.]
Following a hearing, the trial court entered an order granting summary judgment in favor of the defendants. In an incorporated statement of its findings and conclusions, the trial court explained that, based on the undisputed evidence submitted by the defendants, the annexation became effective on July 29, 2011 (31 days
ISSUES
The plaintiffs raise the following issues on appeal, restated from their brief:
- Whether the trial court erred in granting summary judgment in favor of the defendants.
- Whether the trial court erred in adopting, verbatim, findings and conclusions submitted by the defendants prior to the entry of its ruling.
STANDARD OF REVIEW
This is an appeal from the trial court’s grant of summary judgment to the defendants. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
[I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the summary judgment stage is insufficient to establish the nonmoving party’s claim or defense. We reiterate that a moving party seeking summary judgment by attacking the nonmoving party’s evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather,
Tennessee Rule 56.03 requires the moving party to support its motion with “a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.”Tenn. R. Civ. P. 56.03 . “Each fact is to be set forth in a separate, numbered paragraph and supported by a specific citation to the record.”Id. When such a motion is made, any party opposing summary judgment must file a response to each fact set forth by the movant in the manner provided inTennessee Rule 56.03 . “[W]hen a motion for summary judgment is made [and] . . . supported as provided in [Tennessee Rule 56],” to survive summary judgment, the nonmoving party “may not rest upon the mere allegations or denials of [its] pleading,” but must respond, and by affidavits or one of the other means provided in Tennessee Rule 56, “set forth specific facts” at the summary judgment stage “showing that there is a genuine issue for trial.”Tenn. R. Civ. P. 56.06 .
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264-65 (Tenn. 2015) (judicially adopting a summary judgment standard parallel to the statutory standard set forth in
DISCUSSION
The plaintiffs argue that the trial court erred in granting summary judgment to the defendants based on its determination that the City’s assessment of 2012 property taxes on real property located in South Cordova was lawful. Pursuant to
Traditionally, the power to alter municipal boundaries has been viewed as a natural result of the legislature’s broader power to establish and abolish municipal corporations. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 702 (Tenn. 2009) (citing Williams v. City of Nashville, 15 S.W. 364, 365 (Tenn. 1891)). As such, prior to 1955, the General Assembly had unlimited and exclusive authority to alter municipal boundaries in Tennessee. Id. at 703. During that time, the General Assembly’s power was so broad that “an individual subject to a validly-enacted annexation had no legal avenue through which to oppose it.” Id.
In 1955, the General Assembly granted municipalities the authority to extend their own boundaries through annexation by ordinance. See
Recognizing that the General Assembly “could have delegated to the municipalities the authority to annex with no right of judicial review absent constitutional restraint,” Tennessee courts have consistently held that the statutory right to contest an annexation ordinance is very limited. Highwoods Props., Inc., 297 S.W.3d at 707-08 (citations omitted). The “entire jurisdiction and authority” of the courts to review a municipality’s annexation ordinance is contained in the four corners of the statute. Id. at 708 (citing City of Oak Ridge v. Roane Cnty., 563 S.W.2d 895, 897 (Tenn. 1978)). As such, “‘the courts have no power to vacate an annexation ordinance for purely procedural defects,’ because no such authority has been granted by statute.” Id. (quoting City of Watauga v. City of Johnson City, 589 S.W.2d 901, 906 (Tenn. 1979)). “Rather, the general rule is that defects in an annexation ordinance must be presented in the context of a challenge to its reasonableness or necessity by way of a timely quo warranto challenge.” Id. (citing City of Oak Ridge, 563 S.W.2d at 898; City of Knoxville v. State ex rel. Graves, 341 S.W.2d 718, 721 (Tenn. 1960)).
Moreover, the quo warranto action must be filed within 30 days after the final passage of the annexation ordinance because “the courts have no jurisdiction [over] such suits thereafter.” City of Oak Ridge, 563 S.W.2d at 898.
When a quo warranto action to contest the validity of an annexation ordinance is timely filed, the operative date of the annexation ordinance is “held in abeyance” pending litigation of the action. Highwoods Props., Inc. v. City of Memphis, No. W2006-00732-COA-R3-CV, 2006 WL 3628102, at *7 (Tenn. Ct. App. Dec. 14, 2006), aff’d, 297 S.W.3d 695 (Tenn. 2009). The sole question before the court in such an action is “whether the proposed annexation is or is not unreasonable in consideration of the health, safety and welfare of the citizens and property owners of the territory sought to be annexed and the citizens and property owners of the municipality.”
In this case, the City passed an ordinance to extend its boundaries by annexing South Cordova on November 20, 2001. The ordinance stated that the annexation would take effect on December 31, 2001. The Cochran I plaintiffs timely filed a quo warranto action contesting the validity of the ordinance during the 30-day period before it became operative. No other quo warranto actions were filed during the 30-day period. A final judgment dismissing Cochran I was entered on June 28, 2011, and no appeal was taken from it. Cochran II was not filed in the 30-day period following passage of the annexation ordinance and, as such, did not operate to hold the annexation ordinance in abeyance. Therefore, based on a straightforward application of the governing statutes to the undisputed facts, the City’s annexation ordinance became operative, and the City’s annexation of South Cordova took effect 31 days later on July 29, 2011.
Nevertheless, the plaintiffs argue that the City’s annexation ordinance became effective, at the earliest, on July 1, 2012, when the City began providing municipal services to the residents of South Cordova. As we explained, however, only a quo warranto action filed within 30 days of an annexation ordinance’s passage will operate to hold the annexation in abeyance. See City of Oak Ridge, 563 S.W.2d at 898. The failure to extend the rights and privileges of citizenry immediately upon the citizens of a newly annexed area does not render a municipality’s annexation ordinance
In the “Statement of Issues Presented for Review” section of their appellate brief, the plaintiffs pose the following question: “Did the Trial Court err in merely adopting verbatim the eight page Findings of Fact and Conclusions of Law submitted by the Defendant prior to the Court’s ruling?” As the defendants point out, however, the “Argument” section of the plaintiffs’ appellate brief contains neither citations to the alleged error in the record, nor any argument explaining how the trial court erred. Courts have routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of an appellate brief as required by
CONCLUSION
In light of the foregoing, we affirm the judgment of the trial court. The costs of this appeal are taxed to the appellants, Joseph O’Shields, Tommie Isom, Warren Riggs, Roy Fisk, and Ken Netherton, jointly and severally, and their sureties, for which execution may issue if necessary.
ARNOLD B. GOLDIN, JUDGE