### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE February 16, 2001 S ession
ERNEST F. PHILLIPS v. COUNTY OF ANDERSON, ET AL 

### . Appeal from the Chancery Court for Anderson County No. 99CH7630 William E. Lantrip, Chancellor

FILED APRIL 30, 2001

No. E2000-01204-COA-R3-CV

The defendan ts, Anderso n County and the City o f Clinton, entered

into an agreemen

t to jointly finance the development of an industrial park to be owned and operated by the City. The plaintiff, Ernest F. Phillips, brought this action for declaratory and injunctive relief, alleging that the County’s financi ng of a portion of the industrial park is i

llegal and uncons

titutional and that t

he defendants violated various statutory requirements fo

r the development

of indust rial pa rks. The trial court grantedthe defendants summary judgment. The plaintiff appeals, arguing: (1) that the County’suse of bond proceeds to finance its portion of t he industrial par

k’s infrastructu

re costs constitute

s a lending or giving of credi t to or in aid of a corporation within the meaning of Article II, Section 29 of the Tennessee Constitution; (2) that the agreement between the County and the City is not legally sufficient under the Industrial Par

k Act; (3) that the

County obtained a st

atutorily-requir

ed certificate of public purpose and necessity by fraud and misrepre sentation; and (4) that the County’s bond resolutions are fatally defective and call for prohibited expenditur es. The City argues (a) that the plaintiff lacks standing to c

hallenge the City’ s actions and (b) t hat the plaintiff’ s appeal is frivolo us. We affirm the grant

of summary judgmen

t to the defendants b

ut do not find the pla

intiff’s appeal t

o be frivolous.

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

Affirmed; Case Remanded

C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined.
Ernest F. Phillips, Clinton, Tennessee, Pro Se.
David S. Clark, Oak Ridge, Tennessee, for the appellee, Anderson County, Tennessee.
Roger L. Ridenour, Clinton, Tennessee, and John T. Batson, Jr., Knox ville, Tennessee, for the appellee, City of Clinton.

OPINION1 There is no expl anation i n the record as to the

involvement of

a public age

ncy in Montgomery County.

-2- I.

On July 21, 1997, the Ande rson Cou nty Board of Commissioners (“the Board of Commissioners”) authorized Anderson County (“the County”) to enter into an agreement with the City of Clinton (“the City”) to jointly finance the development of a public works project known as the I-75 Industrial Pa

rk (“the industria

l park”). The Cou

nty and the City entere

d into the authorized agreement on July 24, 1997. Theagreement provi des that the City

had already sec

ured options to purchase property on which

it intended to deve

lop the industrial pa

rk and that the Coun

ty des ired to share in

the cost of the park’s development “for the purpose of expanding the economy and tax base of the county.” The agreement further provides that the property is to be owned by the City and that the design and construction of the infrastructure are to be “under the exclusive cont rol of the City.” The cost of

constructing the infrastructure is estimated in the agreement to be a

pproximately $2,500,000. Under the agreement, the County agreed to pay 75% of the cost of the design and construction of the infrastruc ture, with a maximu

m liability of $1,875,

000. The cost of t he infrastructure is to be paid in three phases. The agreement provides that the responsibility for and control of the industrial pa rk’s development

, in cluding t he responsibility of procuring additional funding and determining when each of the phases will be completed, are exclusively vested in the City.

On December 21, 1998, the Board of Commissioners passed three resolutions authori zi ng the County to finance its portion of the industrial park’s infrastructure. The first of these resolutions (“the initial resolution”

) authorized the

Countyto incur an indebtedness up to $2,200,000 in order to provide funding for the industrial park, as well as o

ther expenditure

s, collectively referred to as “certain public

works projects,”

and described sp

ecifically as fo

llows:

infrastructurei mp rovements within the County, including road impr ovements, renovation, expansion, and improvement of the water , sewer, and gas systems of t he County, and land fill improvements within the County, the acquisition of all property real and personal appurtenant

thereto and connected with such work, and to pay all legal, fiscal, administrat i ve, and engineering costs incident thereto, and costs incident to incurring the Indebtedness....

The capt ion of th e initial resolution erroneously stated that the County was to enter into a loan agreement

with the Public Building Authority of Anderson County , when in fact the loan agreement was to be between the County and the Public Building Authority of Montgomery County

. 1

On December 31, 19

98, Anderson County

Executive Rex Lyn

ch vetoed the th

ree resolutions. On January 19, 1999, the Board of Commissioners convened for a regularly

scheduled meeting. The minutes of that meeting sta te that “Commissione

r Co oper moved to over-ride [sic] Rex Lynch,2 After this l itigat ion commenced, the Ci ty fil ed a cross- claim agai

nst the Count

y, alle ging thatthe County had failed to make the payments required under the agreement. That liti gation is ongoing and is not a subje ct of this app eal.

-3- County Execu tive ve to for 2,200,000 sewer resolution recognizing Montgomery County as being correct,” presumably anindication that the Boardrealized that the re was an erron

eous referenc

e to the Anderson County Pu

b lic Building Authority in the initial resolution passed on December 21, 1998. The resolution was corrected, and the Board voted to override the County Executiv

e’s veto of the three resolutions. After the resolutions were passed, the plaintiff brought this action raising several challenges to the proposed joint venture. 2

II.

We first address the

propriety of the g

rant of summa

ry judgment to

the City. In deciding whether a grant of summary judgment is app ropriate, co urts are to deter mine “if the plead

ings, depositions,answers to interrogatories, and admissions on file, together wi

th 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.” T

enn. R. Civ. P. 56.04. C

ourts “must take the

strongest legitima

te view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).

The par ty seeking summary judgment has the burden of demonstrating that there is no genuine issu e of

material fact and that it is entitled to a judgment as a matter of law. Id. at 215. Generally, a defendant seeking summary judgment may meet this burden by: (1) af

firmatively negating an essential element of the plaintiff’s cause of

action, or (2) conclusively establishing an affirm ative defense. Id. at 215 n. 5. “A conclusory assertion that the nonmoving party has no evidence is clearly insufficient.” Id. at 215.

Once the moving party sa tisfies its burden o

f showing that ther

e is no genuin

e issue of material fact, the burden then shifts to the nonmoving par

ty to show that there

is a genuine issue of material fact requiring submission to the trier of fact. Id. The nonmoving part y cannot simply rel

y upon its pleadings, but rather must set forth, by affidavits or discovery materials,specific facts showing a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.06; Byrd, 847 S.W.2d at 215. The evidence offered by the n onmoving party must b

e admissible at tria

l but need not be i n admissible form. It must be taken as true. Byrd, 847 S.W.2d at 215-16.

The City argued in its motion for summary judgment (1) that the plaintiff lacks st

anding to

sue the City and (2) that the defendants’ expenditures on the development of an industrial park are legal and constitutional. The trial court granted summary judgment to thedefendants on the basis that the proposed expe

nditures are pro

per and specific

ally declined to

address the issue of standing. The City argues on appeal that it is entitled to summary judgment on either or both grounds.3 The County fail ed to rais e the is sue of standi

ng below; th erefore, o ur analys is of this issue is co nfined so lely to the plain tiff’s standing or lack the reof as to the City.

-4- A citizen’s standin

g to sue a governme

ntal entity is a

threshold issue that should be resolved before addressing the merits of the case. Because suits brought by citizens “burden theconduct of public affairs, a defendan t en tity or officer sh

ould not be obliged to

defend on the mer

its if he is entitled to a dismissal for lack of standing.” Cobb v. Shelby County Bd. of Comm’rs, 771 S.W.2d 124, 125 (Tenn. 1989). The plaintiff argues that this Court should not address the issue of standing because “the issue was spe

cifically prete

rmitted below.” O

ur jurisd iction, however, exten

ds not only to those issues addressed by the court below, but also those issues that were raised but pretermitted. See Smith v. Harriman Util. Bd., 26 S.W.3d 879 , 887 (Tenn. Ct. App. 2000). Thus, before we addressthe propriety of summary judgment on the merits of the plaintiff’s case, we will address the issue of the plaintiff’s standing to sue the City. 3
“Standing is a judge-made doctrine which has no per se rec

ognition in

the rules. It is used to refuse to determine the merits of a legal controve

rsy irrespective

of its correctne

ss where the par

ty advancing it is not properly situated to prosecute the action.” Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). Inorder for a plaintiff to have standing to challenge the legality of the expenditure of public funds, the plaintiff must

satisfy three requirements: (1) taxpayer status; (2) an allega tion o f a specific illegality in the expenditure of public funds; and (3) prior demand. Cobb, 771 S.W.2d at 126. To satisfy the prerequisite of prior deman d, a plaintiff must “have notified appropriate officials of

the illegality and given them an opportunity to take corrective action short of litigation. ” Id. ; see also Badgett v. Rogers, 222 Tenn. 374, 381, 436 S.W.2d 292, 295 (1968) (requiring “demand upon public authorities to rectify the alleged wrong pr

ior to the initiation of such action by the citizen and ta xpayer”). Failu

re to make a prior demand is excused only if a demand would have been a “vain formality,” i.e. , a futile gesture. Badgett, 436 S.W.2d at 295.

We find that the plaintiff failed to make a prior demand on the City and that he has

failed to show that a demand upon

City officials would have been futile. The City’s finance director, James A. Cotton, Jr., state

d in his affidavit a

s follows:

I amaware of the la

wsuit Ernest Phillips filed against the City and the Countyin Julyof 1999. That lawsuit was th e first notice tha

t any city official received from M r. Phillips complaini

n g about the City’s development

of t he I-75 Industrial Park. Prior to initiating the lawsuit, Mr. Phillips gave no notification to me o r any oth er city officialthat he was concerned that the City had done anything illegal

or improper in the development of or funding for the development of the I-75 Industrial Park.
(Emphasis added).-5-

The plaintiff argues that he satisfied the requirement of prior demand by sending a letter to the City’s mayor, Frank Diggs. In an affidavit, Mayor Diggs acknowledges that he received a letter from the plaintiff on De

cember 10, 1998. T

he letter, howev

er, is a request b

y the pla intiff fo r assistance in locating and inspecting public records pertaining to the industrial park

project. We find andhold that the plaintiff

’s letter to Mayor Diggs does not satisfy the prerequisite of prior demand. The letter is merely a request to inspect public records pertaining to the development of the industrial park; it does not serve to notify the appropriate City officials of the illegal acts of which the plaintiff

now compla

i ns. The plaintiff a

rgues that, in any e

vent, demand upon M

ayor Diggs was a “

vain formality.” We disagree. The requirement of prior demand is waived only in “very e xceptio nal circumstances...and

then only when it appears that one of the accused public officers would have had to take the corrective action or would have been intimately involved in doing so, or would have been seriously embarrassed by the action.” Metropolitan Gov’t o f Nashville ex rel. Anderson v. Fulton, 701 S.W.2d 597, 601 (Tenn. 1985). The plaintiff made no such allegations in this case. Thus, we do not find that the requirement of prior demand is excused in this case.

The plaintiff further argues that the requirement of prior demand was satisfied

by a letter that he hand delivered to the chairman of the State Building Finance Committee. The plaintiff further alleges that County

Executive Lynch

“was present in N

ashville, Tennes see, on this occasion, [and]

was cognizant of the letter and its contents....” This letter, which is included in an appendix to the plaintiff’s brief, is not contained in the record. Thus, it should not be considered on this appeal. See Hunt v. Shaw, 946 S.W.2d 306, 309 (Tenn. Ct. App. 1996). E ven if we did consider the letter, however, we do not find that a letter directed to a state official constitu tes notification to

City officials of the plaintiff’s allegations of the City’s wrongdoing. The plaintiff’s argument is without merit.

We find that the City successfully set forth facts which, left uncontradicted, establish that there is no genuine issue o f material fact

and that the City is

entitled to a jud gment as a matter of law. We further

find that the plaintiff has failed to establish a genuine issue of material fact on the issue of standing. Accordingly, we affirm the grant of summary judgmen

t to the City on the bas

is that the plaintiff lacks standing to challenge the City’s actions.

III.

We now review the grant of summary judgment to the County. In arguing that the grant of summary judgment wa

s in error, the pla

intiff raises fou

r issues, which we

restate as follow

s:

1. Does the County’s use of up to $1,875,000 in general obligation bond proceeds to fund

its portion of

certain infrastructure costs under

an agreement with the City to develop an industrial park constitute a lending or giving of credit to or in aid of a corporation, within the meaning of Article II, Section 29 of the Tennessee Constitution?4 This issue, a s stated in the p laintiff’s brief, ca lls into questio n the valid ity of all three resolut ions pass ed by the Board of Commissioners. The plaint iff’s argument, however, f ocuses only on the init ial resolut

ion; thus, we w ill confine our di scussion to that resolut ion.

-6- 2. Is the contract between the City and the County legally sufficient under the Industrial Park Act, T.C.A. § 13-16-201 et seq. ?

3. Did the County obtain a certificate of public purpose an d necessity, which is required under the Industrial Park A ct, by fraud and misrepresentation?

4. Is the resolution author izing the County to inc

ur indebtedness

to finance certain public wo

rks projects

fatally defective

on its face and callfor expenditures that

are prohibited

under the Local Government Public Obligations Act of 1986, T.C.A. § 9-21-101, et seq. ? 4

A.

The plaintiff argues

that the County’s use

of the proceeds

from general obl

igation bonds to fund its portion of the industrial park’s infrastructure costs constitutes a lending of public credit to the municipal corpor

ation of the City of Cl

inton, in violation of

Artic l e II, Section 29 of the Tennessee Constit

ution. Article II

, Section 29 provide

s, in pertinent par

t, as follows:

The General Assembly shall have power to authorize the several

c ounties and incorporated towns in this State, to impose taxes fo r Countyand Corporation purposes respectively, in such manne ras shallbe prescribed

by law; andall property shall be taxed according to its value, upon the p rinciples esta

blishe d in regard to State taxation. But the credit of no County, City or Town shall be given or loaned to or i n aid of any person, company, association or corporation, except

upon an election to

be first held by the qualified voters of such county, city or town, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city or town become a st ock holder with others in any company, association or corporationexcept upon a like el ection, and the assent of a like majority.
(Emphasis added).

The plaintiff’s argument rests onthe assumption that the prohibition against the lending of public credit to “any person, company, association or corporation” without a popular vote includes the lending of

public credit to a municipal corporation. For the reasons set forth below, we find no merit in the plaintiff’s argument.-7-

In interpreting a c

onstitu ti onal provision, courts must give its terms their “ordinary and inherent meaning.” Gaskin v. Collins, 661 S.W.2d 865, 867 (Tenn. 1983). The intent of the drafters at the time of enactm

ent must also

be examined. Eye Clinic, P.C. v. Ja ckson-Madison County G en. Hosp., 986 S.W.2d 565, 571 (Tenn. Ct. App. 1998). As this Court has stated:

Since constitutions deriv

e their power and

authority from the people,

ou rar ticulation of constitutional principles must capture the intentions of the persons who ratified the con

stitution. These intentions are reflecte

d in the words of

the constitution itself, rather than our own subjective notions of unexpressed constitutional inte

nt.
Martin v. Beer Bd., 908 S.W.2d 941, 947 (Tenn. Ct. App. 1995) (citation omitted).

The Supreme

Courtrecently examined Article II, Section 29 in Cleveland Surgery Ce nter, L.P. v. Bradley County Memori al Hospital, 30 S.W.3d 278 (Tenn. 2 000). In that case

, the Supreme Courtwas faced with th

e issue of whethe

r a quasi-govern

mental entity such a

s a county hospital is

a “County, City or Town” within the meaning of the subject constitutional provision. In concluding that it was not, the Court

construed the ter

ms “Co unty, City or Town” in the context of the circumstances in which the provision was enacted:

During the early

part of the nineteenth century, at the beginning of the industrial r evolution and increased westward expansion, rai lroads an d canals were viewed as

critical modes of

transp ort ation. Because private industry was unable to raise thecapital necessary to co mplete these projects
, many states and cities borrowed heavily to finance these impro veme nt and transporta tion projects and i

ssued bonds to buy sto ck in private comp anies or guaran

teed loans to priva

te companies. Unfortunatel y, many of these public-private ventures failedcausing the s ta tes and cities to lose the tax money they had invested and leaving the states and cities with a burde n of debt. As

a result of these failed ventures, between the years 1840 a nd 1 855, nineteen states enacted constitutional provisions which limited the ability of state and loca

l governments

to incur debt and ex

tend credit to private busines ses.

* * *
Adoption of constitutional provisions restricting the extension of public credit d id not become prevalent in the South until after the Civil War. As a result o f the Civil War , most infrastructure in the South had been destroy

ed including railr

oads, roadways,canals, and bridges. To rebuild the infr astructure, sout

h ern states borrowed money and authorized la

rge bond issues.

In addition, Reconstruction-8- governments

in the South w er e said to have incurred debt and authorized

bond issues for personal gain. When the pe r iod of Reconstruction ended, many southern states ado pte d constitutional provisions limiting the extension o f public credit. Tenness ee is a clear example of this tre

nd. Prior to

1870, Article II, § 29 consisted of only one sentence, which is currently the first sentence of the section. The second and th ird sentences of

th e provi sion...were adoptedas part of the Constitution of 187 0 at th e end of the Reconstruction government in Tennessee and were aimed at ending the abuses that occurred during Reconstruction.

Id. at 282-83 (citations omitted).
Although the issue in th e instan t case is the meaning of the term “corporation,” we nevertheless

find the Supreme Court’s analysis in Cl eveland S urgery Center instructive. It is evident from the h

istorical context

of Article II, Se

ction 29, that the pu

rpose of this

provision was to place limitations upon the power of local governments to extend credit to or otherwise be

come financially

involved in priv ate enter prises . This conclusion is f urther supported

by the Supreme Court’s decision in Dodd v. Roane County, 174 Tenn. 267, 124 S.W.2d 953 (1939). In that case, Roane County issued bonds to aid the City of Harriman in building a city hospital. Id. at 954. The plaintiffs challenged the constitutionality of the County’s action

s under Article

II, Section 29. Id. at 955. In so doing, the plaintiffs cited Ber ry v. Shelby C

ounty, 139 Tenn. 532, 201 S.W. 748 (1918), in which the Suprem e Co urt held that the lending of public aid to a private college was unconstitutional. Id. The Supreme Court rejected the plaintiffs’ argument, holding t hat the joint enterpri se undertaken by the city and the county was constitutional. Id. In so holding, the Court distinguished cases such as Berry on the basis that those cases involved the giving of public credit of a count y or city to private corporations; the

Court noted that “[

n]o such question is

prese nte d here.” Id.

Basedupon the foregoing, we find and hold that a municipal corporation such as theCity of Clinton is n ot a “corporation” within the meaning of Article II, Section 29. Accordingly, t h e County’s actions do not constitute a giving of public credit to a corporation within the meaning of that provision. The

plaintiff’s argu

ment as to this issue i

s without merit.

B.

The plaintiff

next contends that the agreement executed by the County and the City is no t legally sufficient under the Industrial Park Act, T.C.A. § 13-16-201, et seq. (1999), whichprovides, in pertinent part,

as follows:

The powers conferred upon municipalities under [the Industrial Park Act] may be exercise

d by two (2) or more

municip alitie s acting jo intly, in which event the governing bodi es of the municipali

tie s-9- acting jointly shall provide by contract the manner of deve

lopment, operation and maintenance of industrial parks, or the powers may be de lega ted by resolution to a joint commission or board, the composition, terms of office, appoi ntment, and comp ensation of same to be fixed by agreement of the governing bodies of such municipalities acting jointly.

T.C.A. § 13-16-206 (Emphasis added). The plaintiff argues that the agreement is insufficient in

that it fails to “provide...the manner of development, operation and maintenance” of the industrial park. We disagree.

The agreement executed by the County and the Cit y explicitly provid

es that the City

shall

own the property and

shall have “exc

lu sive c ontrol” of the design and construction of the park’s infrastructure. The agreement further provides that the City shall be “exclusively ves ted” with the responsibility

for the development of the park. It is clear from this agreement the parties intend that the City is to be solely responsible for the “deve l opment, operation and maintenance” of the industrial park. We therefore find that the agreement sufficiently pro vides fo r “the manner of development,

operation and maintenance” of the industrial park at issue. Theplaintiff’s argument to the contrary is

without merit.

C.

The plaintiff’s next i

ssue concerns th

e requirement un

der the Industria

l Park Act that a municipality

m u st obtain a certif

icate of public pu

rpose and neces sity before borr owing funds in order to develop an industrial park. See T.C.A. § 13-16-207(a)(1)(A). It is undisputed tha t t he County obtained a certi

ficate as requi

red by the Act. Th

e pla intiff contends, however, that the County obtained its certificate“by submitting an a pplica tion that contained patent illegalities and fraudulent

omi ssion s.” In making this a rgument, the plain

tiff relies on sev

eral documents, m

ost notably the allegedly fraudulent application submitted by the County. The plaintiff, however, has failed to include these documents in the record. Because these documents are not before us, there is nothing in the record to establish the correctness of the plaintiff’s position.

D.
Finally, the plaintiff argues that the initial resolution p assed by the County Board of Commissioners is fatally defective on its face and calls for expend

itures with

bond proceeds that are prohibited under

the Industrial Park Act. First, the plaintiff complains that the initial resolution was altered “by some unknown party” and that “there is no entry in the records or minutes of [the meetings of the Board of Commissioners] to evidence the correction of the document to read

‘The Building Autho rity of the County of Montgomery.’” Second, the plaintiff argues that the initial resolution is improper because it provides for the use of the bond proceeds for “landfill expenses and related expenses,” including attorney’s fees, expenditures which the plaintiff contends are prohibit ed-10-

under the Local Government Public Obligations Act of 1986, T.C.A. § 9-21-101, et seq . We will address each of these arguments in turn.

There is no dispute that when the initial resolution was passed on December 21, 1998, the caption erroneously referred to a loa n agreeme

nt between the County and the Public Building Authority of Anderson County . That re solution wa s vetoed by County Executive Rex Lynch. Before the resolution was passed again on Ja

nuary 19, 1999, it w

as corrected to

refer to the Publi

c Building Authority of Montgomery County . We do not find tha t the correction

of this error prio

r to the resolution’s passage is fatally defective to the resolution before us. As it was ultimately adopted, the resolution was accurate. However the resolution read prior to its adoption on January 19, 1999, is of no consequence in this case.

The plaintiff also ar

gues that the initia

l resolution calls

for expenditures not permitted by the Local Government Public Obligations Act of 1986. Specifically, he complains that theresolution calls for the use of bon

d proceeds for “

landfill improveme

nts within the County, the acquisition of all property real and personal appurtenant thereto and connected with such work, and to pay for such legal, fiscal, administrative, and engineering costs incident thereto....”

Th e L ocal Government Public Obligations Act of 1986 (“the Act”) provides a statutory framework

to allo w loca l governments to issu e general obliga

tion bonds and reve

nue bonds to finance the costs of public works projects. See T.C.A. §§ 9-21-102 (Supp. 2000). The Act defines “costs”as including “[e]ngineering, architect ural , art design services, inspection, legal and accounting expenses, and relocation expenses in connection with construc tion of a public works project ....” T.C.A. § 9-21-109(1) (1999) (Emphasis added). “Constru cti on” is defined in the Act

as “building, recon

struction, erec

tion, replaceme

nt, extension, rep

airing, betterme

nt, equip ment , development,

embellishment, improvement, acquisition by gift, leas e, purchase or the exercise of the right of eminent domain, or any one (1) or more or all of the foregoing, including the acquisition of land and of rights in land ....” T.C.A. § 9-21-105(4) (1999) (Emphasis added).

The County candidly admits thatit initially intended to use part of the bond proceeds to pay for attorney’s fees and fines arisingfrom earlier litigation concerning an abandoned County landfill. GailCook, director of accounts and budgets for the County, states b

y way of affidav

it, however, that the County, on the ad

vice of its counsel, no longer intends to use any of the fun

ds to pay for these fees and fines. Accor

ding to Cook, th

e County ha d already paid fo r these expense

s out of its “regular budget.” Cook asse

rts that the County in

tends to use th

e bond proceeds only for the industrial park. In granting summary judgment to the County, the trial court noted that the County hadstipulated that the bond proceeds would not be used to pay the attorney’s fees and fines resulting from the landfill

dispute and further admonished that the County “should not use any of the money to be borrowed for any expenses of the old Anderson County landfill or attorneys fees for th

e landfill....” The plainti

ff coun ters that neither Cook’s affidavit nor the trial court’s “curative language” changes the language of the resolution.5 While the resol ution is facial ly in com pliance with t he Act, it is evide nt that the County, a

t least initi ally, planned to use part

of these f

unds for expenses cl early not pe rmitted by t

he Act, namely,

the payment of f

ines and attorney’s fees res

ulting f rom litigation. There is nothing in the record, however, to suggest that the County has in fact made these expenditures. On the cont rary, the tes

timony is that t

hese expenditures will not be made out of

the funds involved in the curre nt project. T he plaintiff, th erefore, h as failed to d emon strate a justiciable controversy from which he may be gran ted declar atory relief. See State v. Brown & W illiamson Toba cco Co rp., 18 S.W.3d 186, 193 (Tenn. (continu ed...)

-11- First and foremost, we

must determine whe

ther the resolutio

n at issu e in fact

calls for prohibited expenditures. Inconstruing municip al ordinances an

d resolutions, cour

ts should follow the principles of statutory construction. Loggins v. Lightner, 897 S.W.2d 698, 702 (Tenn. Ct. App. 1994). The Supreme Court recently reiterated the primary principles of statutory construction as follows:

[T]hereare a number of principles of statutory construction, among

which is the most basic

rule of statutory c

onstruction: to

ascertain and give effect to the intention and purpose of the legislature. However, the court must ascertain the intent witho ut und uly restricting or expanding the statut e’s coverage beyond its intended scope. The legislative intent and purpose areto be ascertained primarily from the natural and ordinary meaning of the statutory la

nguage, without a forced or subtle interpretation that would limit

or extend the statute’s application.

Courts are not autho riz ed to alter or amend a statute. The reasonablenes s of a statute may not be q u estioned by a court, and a court may not substi

tute its own policy judgments for those of the legislature. Courts must presume that the legislature says in a statute what it means and means in a statute what it says there.
Mooney v. Sne ed, 30 S.W .3d 304, 306-07 (Tenn. 2000) (citations and internal quotation marks omitted).

The resolution states that a portion of the bond proceeds are to be used for “landf

ill improvements

within the County, the a cquisition of all property real and personal appurtenant thereto and connec te d with such work, and to pay for such legal, fiscal, administrative, and engineering costs incident thereto....” All of these are permitted uses under the Act. Improvemen

ts to a landfill ma

y be conside red the construction of a public works project. See T.C.A. § 9-21- 105(21)(A) (1999) (defining “public works project” to include, a mong other things, “garbage collection and disposal systems”). The acquisition of land and the payment of legal and

accounting expenses related to

such improvements

would also

be permissible under the Act. See T.C.A. §§ 9- 21-105(4), 9-21-109(1). We therefore find no merit in the plaintiff’s argument that the resolution calls for prohibit

ed expenditures

. 55 (...continued)

2000).

-12- IV.
Finally, the City raises the issue of whether

th e plain tiff should be liable for sanctions for bringing a frivolous appeal. T.C.A. § 27-1-122 ( 2000) provides as

follows:

When it appears to any

reviewing court that the appeal from any court of record was fri vol ous or t aken sol ely f or d ela y, the court may, either upon motion of a part yor of its own motion, award just damages against the appellant, which may include, but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the

appeal.

This statute “must be interpreted and applied strictly so as not to discou r age legitimate appeals.” Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977) (discussing the predecessor of T.C.A. § 27-1-122). An appeal is deemed frivolous if it is devoid of merit or if it has no reasonable chance of success. Bursack v. Wilson, 982 S.W.2d 341, 345 (Tenn. Ct. App. 1998); Industrial Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995).

We do not find that this a ppeal is so devoid o

f merit as to warr

ant the charact

erization of it as frivolous. Acc

ordingly, we decline to awa

rd damages for

such an appeal.

V.

The judgment of the trial court is affirmed. T his case is remanded for co llection of costs assessedbelow, pursuant to applicable law. Cos ts on appeal are taxed to the a ppellant, Ernest F. Phillips.

___________________________________ CHARLES D. SUSANO, JR., JUDGE