FILED

November 19, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS

CITY OF ATHENS, TENNESSEE, ) McMINN CIRCUIT

 ) C.A. NO. 03A01-9707-CV-00256

 )

 Plaintiff-Appellee )

 )

 )

 )

 )

 )

vs. ) HON. EARL H. HENLEY

 ) JUDGE

 )

 )

 )

 )

 )

ROBERT CALLAWAY, ) AFFIRMED AND REMANDED

 )

 Defendant-Appellant )

ROBERT CALLAWAY, Athens, pro se Appellant.

H. CHRIS TREW, Higgins, Biddle, Chester & Trew, Athens, for

Appellee.

O P I N I O N

McMurray, J.

This action originated when the appellee, City of Athens,

cited Robert Callaway for his failure to pay the city's service

charges for refuse collection and disposal. The Athens Municipal

Court ordered Callaway to pay a total of $156.26 in trash collection and disposal charges. Callaway appealed to the Circuit Court

for McMinn County, arguing that the bills from the city were not
2

due and payable. The Circuit Court granted the city summary

judgment. This appeal resulted. We affirm the judgment of the

trial court.

Callaway is a veterinarian who practices his profession in a

building within Athens' city limits. In 1995, the city passed an

ordinance rewriting municipal code section 17-113. The new 17-113

provides:

(1) Institutional, professional, industrial,

fraternal, commercial or business establishments operated

within the City of Athens shall pay a minimum monthly fee

as determined by city council and adopted through its

annual budget, plus an additional amount for receipt of

services as determined by the supervisor of the city's

sanitation department. However, businesses operating out

of their residences or vehicles may be eligible for a

credit of one hundred percent (100%) for the service as

determined by the supervisor of the city's sanitation

department. 

On June 22, 1995, the city's director of finance sent Callaway a

letter which cited the above section and stated that his minimum

monthly fee "rate has been set at $15 per month and will be

reflected on a quarterly statement from the City of Athens." 

Callaway replied with a letter stating that he did not want to

be "a customer of the Athens trash disposal system." He also

inquired, on several different occasions, as to whether the minimum

monthly fee was properly identified or classified as a "user fee"

or a "tax." Upon Callaway's continued refusal to pay the charges

for trash pickup and disposal, this litigation ensued.

Callaway enumerates three issues in his brief, stated as

follows: "(1) whether [he] was denied due process by way of a

summary judgment; (2) whether the money in question was legally
3

due; (3) whether the plaintiff did not act in good faith because

the city failed to answer the defendant[']s question as to the

nature of the invoices, thereby making the bills invalid." 

Regarding the first issue, Callaway does not present any

argument, nor cite any authority, in his brief for the proposition

that his due process has been denied under the facts of this case.

We find this assertion to be without merit.

Regarding the issue of whether the bills were legally due,

Callaway presents no cognizable reason as to why they would not be.

The thrust of the argument in his brief turns on whether the

assessment for garbage collection and disposal was properly

characterized as a "fee," or, as he contends, a "tax." 

T.C.A. § 6-19-101 provides that every city incorporated under

a city manager-commission charter, as is Athens, has the authority

to "[c]ollect and dispose of drainage, sewage, ashes, garbage,

refuse or other waste, or license and regulate such collection and

disposal, and the cost of such collection regulation or disposal

may be funded by taxation or special assessment to the property

owner[.]" 

The city filed the affidavit of Athens City Manager Melvin L.

Barker, who stated that "[a]ll of the charges collected by the City

for collection and disposal of refuse and garbage is maintained in

a separate account from the City's general fund and designated

solely for uses related to refuse and trash collection and

disposal." 
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It is clear that T.C.A. § 6-19-101 provides authority for the

city to assess such a charge as it has done in the present case,

regardless of whether it is classified as a "tax" or a "fee" or

something else. We find no merit in Callaway's contention that the

city's reluctance to respond to his inquiries as to whether the

invoices amounted to a "tax" or a "fee" made the invoices void or

uncollectible.

Finally, we note that the Athens Municipal Code does allow for

persons to "opt-out" of city trash collection and disposal, by

electing to contract with a privately licensed waste hauler:

Commercial, industrial, institutional, professional,

fraternal and business establishments . . . electing to

utilize a privately licensed waste hauler must provide

evidence of a paid invoice on a quarterly basis to the

City Sanitation Foreman for the minimum billing to be

waived. If proper evidence is not provided, minimum

billing along with any penalties are due to the city.

Athens Municipal Code § 17-114(2).

Thus, it is clear that if Callaway did not want to be a

"customer" of the city trash collection system, all that was

required of him was to show evidence of a paid invoice to a private

waste hauler. He did not do so. We find no merit in his appeal.

The judgment of the trial court is affirmed in its entirety,

and the case remanded for such further actions as may be necessary.

Costs of appeal are assessed to the appellant. 

___________________________

Don T. McMurray, Judge

___________________________________

Houston M. Goddard, Presiding Judge
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______________________________

Charles D. Susano, Jr., Judge
IN THE COURT OF APPEALS

CITY OF ATHENS, TENNESSEE, ) McMINN CIRCUIT

 ) C.A. NO. 03A01-9707-CV-00256

 )

 Plaintiff-Appellee )

 )

 )

 )

 )

 )

vs. ) HON. EARL H. HENLEY

 ) JUDGE

 )

 )

 )

 )

 )

ROBERT CALLAWAY, ) AFFIRMED AND REMANDED

 )

 Defendant-Appellant )

JUDGMENT

Thi s a ppe a l c a me on t o be he a r d upon t he r e c or d fr om t he

Cha ncer y Cour t of Mc Mi nn Count y, a nd br i e f s f i l e d on be ha l f of the

r e s pe c t i ve pa r t i e s . Upon c ons i de r a t i on t he r e of , t hi s Cour t i s of

opi ni on t ha t t he r e wa s no r e ve r s i bl e e r r or i n t he t r i a l c our t .

The judgment of the trial court is affirmed in its entirety,

and the case remanded for such further actions as may be necessary.

Costs of appeal are assessed to the appellant.

PER CURIAM