# FILED
November 19, 1997 Cecil Crowson, Jr . App ellate C ou rt 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 origina ted 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 MunicipalCourt ordered Callaway to pay a total of $156.26 in trash collectionand disposal charges. Callaway appealed to the Circuit Court for McMinn County, arguing that the bills from the city were not2

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 withinthe 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 ser vices as determined by the supervisor of the city ' s sanitationdepartment. However, businesses operating out of their residences or vehicles ma y be eligible for a credit of one hundred percent (100%) for the service as determined by the supervisor of t h e city's sanitation department.
OnJune 22, 1995, the city's direc tor o f finance sent Callaway a letter which cited the above section and stated that his minimum monthlyfee "rate has been set at $15 per month and will be reflected on a quarterly statement from the City of Athens." Callawayreplied with a letter stating that he did not want to be "a cu stomer of the Athens trash disposal system." He als o 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.
Callawayenumerates three issues in his brief, stated as follows: "(1) whether [he] was de nied due process by way of a s ummaryjudgment; (2) whether the money in question was lega ll y3

due; (3) whether the pla intif f 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 b ill s were legally due, Callawaypresents no cognizable reasonas to why they would not be. The thrust of the argument in his bri ef turns on whether the assessment for garbage col lection and disposal was properly characterized as a "fee," or, as he contends, a "tax."

T.C.A. § 6-19-101 provides that every cityincorporated 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 d isposal, and the cost of such collection regulation or di sposa l maybe 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 bythe City for collection and disposal of refuse and garbage is maintained in a separate account from the City's general fund and designated so lelyf or uses related to refuse and trash collection and disposal."4

It is clear that T.C.A. § 6-19-101 provides authority for the cityto assess such a charge as it has done inthe pre sent 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 pr ovid e evidence of a paid invoice on a quarterly basis to the CitySanitation Foreman for the minimum billing to be waived. If proper evidence is n ot 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 "c ustomer" of the city trash collection system, all that w a s required of himwas 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 maybe necessary. Costs of appeal are assessed to the appellant.

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_____ _ Don T. McMurray, Judge

___________________________________ Houston M. Goddard, Presiding Judge5

______________________________ Charles D. Susano, Jr., JudgeIN 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 ) J UDG M E NT Th i s a ppe a l c a m

e on t o be he a r d upon t he r e c o r d fr om t he C h a n cer y C

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c M i nn C ount y, a nd br i e f s f i l e d on be ha l f of th e r e s pe c t i ve pa r t i e s . U pon c ons i de r a t i on t he r e of , t hi s C our t i s of opi ni on t ha t t he r e w a 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