George Metz v. Metropolitan Government Of Nashville And Davidson County, TN

10/17/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 23, 2017 Session

GEORGE METZ, ET AL. v. METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY, TN, ET AL.

Appeal from the Chancery Court for Davidson County
No. 16-507-II Carol L. McCoy, Chancellor1

No. M2016-02031-COA-R3-CV

This appeal concerns a determination by the Planning Commission (“the Commission”)
of the Metropolitan Government of Nashville and Davidson County (“Metro”) that the
Forest View Park planned unit development was “active.” Certain Forest View
neighbors (“Petitioners”) filed a petition for writ of certiorari against respondents Metro
and The Ridge at Antioch, Limited Partnership (“Respondents,” collectively) in the
Chancery Court for Davidson County (“the Trial Court”) challenging the Commission’s
decision. Metro filed a motion to dismiss. After a hearing, the Trial Court entered an
order dismissing the petition for writ of certiorari for lack of jurisdiction. The Trial Court
found fatal defects in the petition for writ of certiorari, including that it was not supported
by oath as required. Petitioners appeal to this Court. We affirm the judgment of the Trial
Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and JOHN W. MCCLARTY, JJ., joined.

Gina Crawley, Nashville, Tennessee, for the appellants, Marilyn Metz, George Metz,
Aubrey Pearson, Jacqueline Pearson, Berry Wright, and Evelyn Wright.

Jon Cooper, Director of Law, Lora Barkenbus Fox, and Catherine J. Pham, Nashville,
Tennessee, for the appellee, the Metropolitan Government of Nashville and Davidson
County.

1
Chancellor Carol L. McCoy retired while the case was ongoing. William Young succeeded McCoy as
Chancellor and oversaw the final disposition below.
William N. Helou, Nashville, Tennessee, for the appellee, The Ridge at Antioch, Limited
Partnership.

OPINION

Background

Three decisions arising from three meetings of the Commission, all related to
affordable housing development, are at issue on appeal. These meetings took place on
March 24, April 14, and May 12, 2016. On April 14, the minutes of the March 24
meeting were approved and signed. On April 28, the minutes of the April 14 meeting
were approved and signed. Finally, on May 26, the minutes of the May 12 meeting were
approved and signed. As a result of these meetings, the Commission determined that the
Forest View Park planned unit development was active.

On May 16, 2016, Petitioners filed their petition for writ of certiorari and
supersedeas seeking review of the Commission’s decision. The petition alleged, in part,
that “the Commission acted in an arbitrary and judicially excessive manner when it found
the Forest View Park PUD to be active.” The petition was not supported by oath. On
May 23, 2016, Petitioners filed an amended petition. The amended petition was not
supported by oath either. On June 6, 2016, Petitioners filed yet another amended petition,
which also was not supported by oath. On August 5, 2016, Metro filed a motion to
dismiss. Only on August 15 did Petitioners file a proposed new petition that was sworn
to and otherwise compliant with the requirements for a petition for writ of certiorari. On
August 19, 2016, the Trial Court conducted a hearing on Metro’s motion to dismiss. On
August 30, 2016, the Trial Court entered an order granting Metro’s motion to dismiss for
lack of jurisdiction. The Trial Court stated, as pertinent:

The Court finds that the latest of the challenged Planning
Commission decisions was made May 12, 2016. The Petition was filed
May 16, 2016. The Petition does not state that it is the first application for
the writ and is not verified as required under the Tennessee Constitution.
The minutes approving the May 12 decision were approved and
signed on May 26, 2016. More than sixty days have passed since those
minutes were approved and signed. Because the Petition does not state that
it is the first application for the writ and is not verified, the Court has no
jurisdiction to review the Planning Commission’s decision. Nor does the
Court have jurisdiction to grant a motion to amend the petition or to convert
it to a declaratory judgment action. Pursuant to Article VI, Section 10 of
the Tennessee Constitution and Talley v. Bd. of Prof’l Responsibility, 358

-2-
 S.W.3d 185, 192 (Tenn. 2011), this case is DISMISSED. Costs are hereby
taxed to Petitioners. This is the final order.

Petitioners subsequently filed their “motion requesting relief.” On October 20,
2016, the Trial Court entered its order denying Petitioners’ motion requesting relief. The
Trial Court stated:

This matter came before the Court for hearing on September 30,
2016 on the Petitioners’ “Motion Requesting Relief” from the “Final Order
of Dismissal” entered by this Court on August 30, 2016. Upon
consideration of the Motion, the pleadings of the parties, the argument of
counsel and the entire record, the Court finds that the Motion should be
denied. This Order incorporates and reiterates the findings made by this
Court at the hearing on September 30, 2016.
The Petitioners initially assert that the Final Order of Dismissal was
not final, in part because the Order only addressed the May 12. 2016
decision of the Davidson County Planning Commission and did not address
the Commission’s March 24, 2016 and April 12, 2016 decisions. However,
this Court finds that the August 30, 2016 Order was intended to completely
conclude this case. The Order is styled a “Final Order of Dismissal” and
specifically states that this case is dismissed with costs taxed to the
Petitioners. The Order also definitively states that “[t]his is the final order.”
Accordingly, given that the August 30th Order is a final decision
dismissing this cause of action, the Court must assume the Petitioners seek
relief from that Order under either Tennessee Rule of Civil Procedure
59.04, which governs motions to alter or amend a judgment, or Tennessee
Rule of Civil Procedure 60.02, which generally allows a party to seek relief
from judgments or orders under certain defined circumstances. The Court
finds neither of these Rules justifies relief in this case.
Rule 59.04 offers relief to a movant wishing to alter or amend a
judgment in very limited circumstances. As the Tennessee Court of
Appeals has stated:

The purpose of a Rule 59.04 motion to alter or amend a
judgment is to provide the trial court with an opportunity to
correct errors before the judgment becomes final. Bradley v.
McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998)
(overruled in part on other grounds by Harris v. Chern, 33
S.W.3d 741 (Tenn. 2000)). The motion should be granted
when the controlling law changes before the judgment
becomes final; when previously unavailable evidence
-3-
 becomes available; or to correct a clear error of law or to
prevent injustice. Id. A Rule 59 motion should not be used to
raise or present new, previously untried or unasserted theories
or legal arguments. Local Union 760 of Intern. Broth. of
Elec. Workers v. City of Harriman, No. E2000-00367-COA-
R3CV, 2000 WL 1801856, at *4 (Tenn. Ct. App. Dec. 8,
2000) perm. app. denied (Tenn. May 14, 2001), see Bradley,
984 S.W.2d at 933 (holding: a Rule 59 motion should not be
used to raise new legal theories where motion for summary
judgment is pending).

Kirk v. Kirk, 447 S.W. 3d 861, 869 (Tenn. Ct. App. 2013) (quoting In re
M.L.D., 182 S.W.3d 890 (Tenn. Ct. App. 2005)).
A Rule 59.04 motion should not be granted when the movant is
simply seeking “to relitigate a matter that has already been adjudicated.”
Morrison v. Morrison, No. W2001-02653-COA-R3-CV, 2002 WL
31423848, *2 (Tenn. Ct. App. Oct. 29, 2002) (citing Bradley v. McLeod,
984 S.W.2d 929, 933 (Tenn. Ct. App. 1998)). The Court finds that
Petitioners’ motion is just that — an attempt to relitigate a matter already
adjudicated by this Court.
The Motion for Relief also fails to satisfy the requirements of Rule
60.02. Tennessee courts have observed that Rule 60.02 motions must be
narrowly construed and are sparingly granted. In re Joeda J., 300 S.W.3d
710, 715-16 (Tenn. Ct. App. 2009). Such a motion requires movants to
explain why they are entitled to the limited relief available under the rule on
such grounds as mistake, inadvertence, surprise or neglect. Id. at 715. A
Rule 60.02 motion is not to be used by a party “merely because he is
dissatisfied with the results of the case.” Id. (quoting Wilkerson v. PFC
Global Group, Inc., No. E2003-00362-COA-R3-CV, 2003 WL 22415359,
at *6 (Tenn. Ct. App. Oct. 23, 2003)). Thus, like Rule 59.04, a party may
not use Rule 60.02 to relitigate matters already litigated. The Petitioners’
motion is attempting to do just that. As they have not met the burden of
identifying a mistake, inadvertence, surprise, neglect, or other circumstance
envisioned by the rule, the Petitioners’ motion to alter the prior Order is not
justified.
In sum, the Court finds that the August 30th Order addressed all
claims that were before the Court. Having read the filings in this case, the
Court finds that there is no new argument or new evidence being presented
by the Petitioners in their Motion for Relief. Accordingly, as the
Petitioners’ Motion for Relief seeks to relitigate issues that were

-4-
 adjudicated in the Court’s final Order, the Court DENIES the Petitioners’
Motion for Relief.
All other motions filed by the Petitioners after the Motion for Relief,
including the Rule 59 motion filed by the Petitioners on September 28,
2016, are also DENIED, as they are repetitive and seek relitigation of issues
already adjudicated.
The Court notes that Petitioners have already filed a Notice of
Appeal. As the August 30th Order is final and adjudicated all matters in
this cause, this matter is ripe for appeal.
It is so ORDERED.

Petitioners timely appealed to this Court.

Discussion

Although not stated exactly as such, Petitioners raise the following two issues on
appeal: 1) whether the Trial Court’s order of August 30, 2016 was a final, appealable
order; and 2) whether Petitioners’ petition for writ of certiorari should be treated as an
action for declaratory judgment.

We first address whether the Trial Court’s order of August 30, 2016 was a final,
appealable order. A final judgment is one that resolves all the issues in the case, ‘leaving
nothing else for the trial court to do.’ ” In re Estate of Henderson, 121 S.W.3d 643, 645
(Tenn. 2003) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct.
App. 1997)). “[A]ny order that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties is not enforceable or appealable and is subject to
revision at any time before entry of a final judgment adjudicating all the claims, rights,
and liabilities of all parties.” Tenn. R. App. P. 3(a). Our Supreme Court has explained:
“Unless an appeal from an interlocutory order is provided by the rules or by statute,
appellate courts have jurisdiction over final judgments only.” Bayberry Assocs. v. Jones,
783 S.W.2d 553, 559 (Tenn. 1990).

A petition for certiorari must be filed within sixty days from entry of the decision
of the administrative body’s decision in order to seek review. Tenn. Code Ann. § 27-9-
102 (2017). The purpose of the provision requiring that a petition for writ of certiorari be
filed within sixty days of entry of a final judgment is “to promote the timely resolution of
disputes by establishing filing deadlines that will keep cases moving through the system.”
Hickman v. Bd. of Paroles, 78 S.W.3d 285, 289 (Tenn. Ct. App. 2001). The sixty day
time limit is jurisdictional and the “[f]ailure to file a writ within this period precludes
review of such decisions by the courts.” Johnson v. Metropolitan Gov’t for Nashville
Davidson County, 54 S.W.3d 772, 774 (Tenn. Ct. App. 2001). “A trial court has subject
-5-
matter jurisdiction to extend the sixty-day time period of section 27-9-102 if the order
granting the extension is entered within the sixty-day period.” Blair v. Tennessee Bd. of
Probation and Parole, 246 S.W.3d 38, 41 (Tenn. Ct. App. 2007).

The basis for the Trial Court’s final order of dismissal was that the petition for
writ of certiorari was fatally deficient in certain respects so as to deprive the Trial Court
of jurisdiction, and that sixty days already had elapsed from the Commission’s most
recently challenged decision. If too much time had elapsed since the Commission’s most
recent decision at issue, then naturally the two prior relevant decisions also would be
encompassed by the Trial Court’s ruling that time had expired. We hold, as did the Trial
Court, that the Trial Court’s final order of dismissal and subsequent order denying relief
to Petitioners under theories of Rule 59.04 and 60.02 resolved all of the claims between
the parties and as such represented a final, appealable order.

The next issue we address is whether Petitioners’ petition for writ of certiorari
should be treated as an action for declaratory judgment and thus avoid the constitutional
and statutory requirements applicable to a writ of certiorari. According to Petitioners, the
Commission made new law and changed the very landscape of Forest View Park, and,
therefore, Petitioners’ legal challenge should be construed as an action for declaratory
judgment. Respondents, on the other hand, argue that the Commission’s determination
was a minor administrative application of existing law.

In a recent opinion, our Supreme Court discussed whether and when common-law
writ of certiorari or declaratory judgment is available to review administrative decisions:

The threshold question in determining whether an administrative
decision is subject to judicial review by common-law writ of certiorari is
whether the administrative body performed a legislative or a quasi-judicial
function. McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990)
(citing Fallin, 656 S.W.2d at 341). “Common law certiorari is available
where the court reviews an administrative decision in which that agency is
acting in a judicial or quasi-judicial capacity.” Davison v. Carr, 659
S.W.2d 361, 363 (Tenn. 1983); see Ben H. Cantrell, Review of
Administrative Decisions by Writ of Certiorari in Tennessee, 4 Mem. St. U.
L. Rev. 19, 20 (Fall 1973) (noting that the common-law writ of certiorari is
available to review judicial or quasi-judicial actions of administrative
bodies). The common-law writ is not available if the administrative
decision at issue was legislative in nature; the judicial remedy for an
erroneous legislative administrative action is a suit for declaratory
judgment. Fallin v. Knox Cnty. Bd. of Comm’rs, 656 S.W.2d 338, 342

-6-
(Tenn. 1983); State ex rel. Moore & Assocs. v. West, 246 S.W.3d 569, 575
(Tenn. Ct. App. 2005).

Thus, if the agency’s act is quasi-judicial, the proper method of
challenging the governmental action is through common-law writ of
certiorari, whereas a legislative action must be challenged by filing a
declaratory judgment action. See McCallen, 786 S.W.2d at 638-40; Fallin,
656 S.W.2d at 342. “This distinction in remedies is made because [quasi-
judicial] determinations ... are accompanied by a record of the evidence
produced and the proceedings had in a particular case, whereas, [legislative
acts are] not ordinarily accompanied by a record of evidence.” Fallin, 656
S.W.2d at 342; see Cantrell, 4 Mem. St. U. L. Rev. at 20.

***

Mr. McFarland’s complaint contains but one claim. It is apparent that the
single claim in his complaint is premised on the same issue decided by the
Election Commission in the pre-election hearing, namely, whether Mr.
Pemberton lived in Knox County or Roane County during the requisite
period prior to the election. He argues, in effect, that the Election
Commission got it wrong. He seeks the same relief as would have been
sought under a petition for writ of certiorari: constitutional disqualification
of Mr. Pemberton for the office of circuit judge for the Ninth Judicial
District. Under Benz-Elliot, considering the legal basis of Mr. McFarland’s
claim and considering the type of injury for which he seeks relief, the
gravamen of his claim is a petition for writ of certiorari, seeking judicial
review of the Election Commission’s decision.

***

Under the facts of this case, the Election Commission decided the
issue of Mr. Pemberton’s residency in a quasi-judicial proceeding and
rendered a final decision that was reviewable through a petition for
common law writ of certiorari under section 27-9-101. Applying the legal
principles enunciated in Benz-Elliot, the gravamen of Mr. McFarland’s
claim is a petition for judicial review of the Election Commission’s
decision, i.e., a petition for writ of certiorari. Because Mr. McFarland
failed to file his complaint within the 60-day time limitation for filing a
petition for writ of certiorari, this action is time-barred.

-7-
McFarland v. Pemberton, --- S.W.3d ----, 2017 WL 4279199, at *22, 28-29 (Tenn. Sept.
20, 2017) (Foonote omitted).

In the present case, three Commission decisions are challenged. The March 24,
2016 Commission decision revised the planned unit development from 212 to 96 units,
pursuant to Metropolitan Code § 17.40.120.G. The April 14, 2016 decision by the
Commission deferred until May 12 a determination as to whether the planned unit
development still was active. Finally, on May 12, 2016, acting pursuant to Metropolitan
Code § 17.40.120.H, the Commission determined that the planned unit development was
active. The Commission, therefore, applied existing law to make certain determinations
regarding development. Echoing the plaintiff’s stance as articulated by our Supreme
Court in McFarland, Petitioners effectively assert that the Commission “got it wrong.”
In our judgment, the Commission’s decisions were of a quasi-judicial or administrative
rather than legislative character. A petition for writ of certiorari, rather than an action for
declaratory judgment, was the appropriate method to challenge the Commission’s
decision.

We next examine whether Petitioners successfully vested the Trial Court with
subject matter jurisdiction by the filing of their petition for writ of certiorari. The petition
for writ of certiorari must state that it is the first application for the writ. Tenn. Code
Ann. § 27-8-106 (2017) provides: “The petition for certiorari may be sworn to before the
clerk of the circuit court, the judge, any judge of the court of general sessions, or a notary
public, and shall state that it is the first application for the writ.” Our Supreme Court has
discussed the constitutional and jurisdictional gravity of the oath requirement with
respect to petitions for writs of certiorari as follows:

The courts’ power to issue writs of certiorari flows from Article VI,
Section 10 of the Tennessee Constitution. Thus, in order to vest a court
with subject matter jurisdiction in a certiorari proceeding, a petition for writ
of certiorari must satisfy Article VI, Section 10’s requirements. Article VI,
Section 10 requires petitions for a writ of certiorari to be “supported by
oath or affirmation.” Because this requirement is constitutional, it is
mandatory. See Beck v. Knabb, 1 Tenn. (1 Overt.) 55, 57-58, 60 (1804).
The courts cannot waive this requirement, Depew v. King’s, Inc., 197 Tenn.
at 571, 276 S.W.2d at 729; Crane Enamelware Co. v. Smith, 168 Tenn.
203, 206, 76 S.W.2d 644, 645 (1934), because it is jurisdictional, and
subject matter jurisdiction cannot be conferred by waiver or consent.
McCarver v. Insurance Co. of Penn., 208 S.W.3d 380, 383 (Tenn. 2006);
Meighan v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996).

Talley v. Board of Prof’l Responsibility, 358 S.W.3d 185, 192 (Tenn. 2011).
-8-
 Petitioners never timely filed a petition for writ of certiorari comporting with the
constitutional and statutory requirements in order to vest the Trial Court with subject
matter jurisdiction. Therefore, the Trial Court properly granted Respondents’ motion to
dismiss for lack of jurisdiction. We affirm the judgment of the Trial Court.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellants, Marilyn Metz, George Metz, Aubrey Pearson, Jacqueline Pearson, Berry
Wright, and Evelyn Wright, and their surety, if any.

____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE

-9-