IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 23, 2013 Session

STATE OF TENNESSEE EX REL. PAUL ALLEN, ET AL. v. THE CITY OF

NEWPORT, TENNESSEE

Appeal from the Chancery Court for Cocke County

No. 08116 Telford Forgety, Chancellor

No. E2012-00814-COA-R3-CV - Filed June 18, 2013

The City of Newport sought to annex certain properties in Cocke County, Tennessee. A

number of affected parties objected to the annexation and filed a complaint against the City.

The trial court allowed the plaintiffs to amend their complaint to allege that the City was

barred from annexing their properties because it had defaulted on a prior plan of services

from an earlier annexation. The City filed a motion to dismiss. The trial court granted the

City’s motion on the ground that the statutory amendments on which the plaintiffs relied to

support their claim could not be retroactively applied. The plaintiffs appeal. We reverse the

judgment of the trial court.

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

Reversed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., P.J., and D. MICHAEL SWINEY, J., joined.

David S. Wigler and Adam S. Moncier, Knoxville, Tennessee, for the appellants, State of

Tennessee ex rel. Paul Allen, Jeff Evans, Hawley Transport Services, Jack Briggs, Steve

Smith, Estella Gray & Ann Kyker, Kaye Ramsey, Evelyn Smith, Craig Chrisman, Tennessee

Tobacco Sales, Inc., and Betty Bewley.

Charlton R. DeVault, Jr., Kingsport, Tennessee, for the appellee, City of Newport,

Tennessee.

OPINION

I. BACKGROUND
The appellants, Paul Allen,Jeff Evans, Hawley Transport Services,Jack Briggs, Steve

Smith, Estella Gray & Ann Kyker, Kaye Ramsey, Evelyn Smith, Craig Chrisman, Tennessee

Tobacco Sales, Inc., and Betty Bewley (“the appellants”), own real property in Cocke

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County, Tennessee, in the City of Newport’s Annexation Area #2 as described in Ordinance

No. 2008-6. The ordinance at issue is the second of four 2008 annexation ordinances of

private properties immediately adjacent to the previously incorporated right-of-way of U.S.

Highway 25W/70, which runs westward from the main corporate limits of the City of

Newport (“the City”). Other private properties that have been annexed by request during the

past decade also adjoin the highway and some of the Area #2 properties.

This action originally was brought by the appellants under quo warranto statutes,

Tennessee Code Annotated sections 6-51-103 and 6-58-111, et seq., contesting the

annexation of property without their consent and approval pursuant to Tennessee Code

Annotated sections 6-51-102 and -103, along with 6-58-111. The validity of the City’s

Ordinance No. 2008-5, which annexed properties adjoining the highway corridor in

Annexation Area #1 closest to the City’s main corporate limits, was confirmed by the trial

court in 2010 and affirmed by this court in State ex rel Grooms v. City of Newport, No.

E2011-00105-COA-R3-CV, 2011 WL 4910366, (Tenn. Ct. App. Oct. 17, 2011). During the

Grooms trial, counsel for the appellants learned that the City allegedly had defaulted on a

prior plan of service from an earlier annexation. The trial court in Grooms denied a motion

to amend to add this claim, holding that the issue was not timely raised, pled, or tried. We

affirmed the trial court’s judgment on appeal, describing the facts as follows:

Roger Greene (“Greene”) testified last. Greene was called by the Plaintiffs as

a “rebuttal witness.” Greene stated that his residence was annexed into

Newport around 1985. Greene testified that he lacks sewer or garbage pickup. Earlier, Town Planner Mark Robinson had testified on cross-examination

by the Plaintiffs’ counsel that sewer service was under the plan of services for

Greene’s annexation. Robinson stated that sewer was available to Greene but

as to having it run up to him, “[t]hat’s between him and the Newport Utilities.”

Greene’s testimony formed the basis for an argument first raised in closing

arguments by the Plaintiffs asserting that, because Newport allegedly defaulted

on a plan of services in a prior annexation, the present annexation is barred.

State ex rel. Grooms, 2011 WL 4910366, at *4.

Some plaintiffs named in the original style of the case have not appealed. Burley Builders, Inc., 1

William Gilbert, Bobbie Pierce, Charla Shipley, Luke and Melissa Goddard, and Jackye and Eugene Large,

entered notices of voluntary dismissal in the trial court.

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In the present action, the appellants timely moved to add a new claim for declaratory

judgment asserting that the ordinance approving the annexation was void pursuant to

Tennessee Code Annotated section 6-51-102(b)(5) because the City was in default of a prior

plan of services. The motion to amend contained the following claims:

6. The City of Newport has failed to provide the services set out in a prior

plan of services as set out in one or more previous annexations and is hereby

prohibited from annexing the territory at issue in this cause pursuant to T.C.A.

§ 6-51-102(b)(5).

7. The City of Newport has failed to provide the services set out in the plan

of services set out in one or more previous annexations and that such failure

makes the annexation of the territory herein, unreasonable.

8. That the City of Newport is further in default on one or more plans of

service in that it has failed to comply with the requirements of T.C.A. § 6-52-

108 in that it has not, annually, prepared and published in a newspaper of

general circulation, a report of the progress made in the preceding year toward

extension of services according to such plan or plans, and any changes

proposed therein. Nor has the Defendant City of Newport published notice of

a public hearing on such progress reports and changes, and held such hearings

thereon.

The motion for leave to amend was granted. The trial court continued this case while the

Area #1 appeal proceeded.

Upon the completion of the appeal, the City filed a Rule 12.02 motion to dismiss, or

for summary judgment on, the amended declaratory judgment claims in the Area #2 case.

The City’sstatement of undisputed material factsin support of its motion for partialsummary

judgment stated as follows:

1. No Newport property owner has sued the City of Newport for any alleged

failure to furnish the municipal services described in an annexation plan of

service[s].

2. No Newport property owner has filed any lawsuit against the City pursuant

to the provisions of T.C.A. § 6-51-108(d) and demanded that the Court order

the City to provide any municipal service described in any annexation plan of

service[s] since that code provision was enacted in 1998.

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3. There has been no Court order finding or declaring that the City of Newport

is in “default” on any adopted annexation plan of services and is therefore

prohibited from engaging in future annexations.

4. No Newport property owner has filed a suit requesting a writ of mandamus

to compel the City of Newport to publish a progress report or hold a public

hearing on the status of the extension of municipal services to annexed

properties under previously adopted plans of service[s] as authorized by the

provisions of T.C.A. § 6-51-108(b).

5. On November 8, 2005, the City Council of Newport held a public hearing

upon a status report on the City’s progress in implementing eleven plans of

service[s] for annexations which had taken place between 1997 and 2005.

6. Notice of the City Council’s November 8, 2005 regular meeting and public

hearing on the City’s plans of service[s] status report was published in the

Newport Plain Talk, which is the local newspaper of general circulation in the

city and county, on October 20, 2005.

7. The City’s annexation November 8, 2005 progress report states in the last

paragraph that all of the City’s annexation plans of service[s] had been

completed and no further annual status reports [were] necessary.

8. During the July 13, 2010 trial of the annexation case for Area #1 properties

. . . Mr. Roger Green[e] testified that the City of Newport had never furnished

sanitary sewer service to his property on Amanda Circle which had been

annexed in 1984. No plan of service[s] for the Green[e] property was

introduced during the trial by the Area #1 plaintiffs.

9. The August 12, 1984 Plan of Service[s] for the Amanda Circle/Hedrick

property which includes Roger Green[e]’s property does not represent that the

City would extend sanitary sewer service to Mr. Green[e]’s property without

charging Mr. Green[e] for the cost of the extension. The 1984 Plan of

Service[s] states:

Sewer service will be provided at inside city rates to any area

currently receiving sewer service from the Newport Utilities

Board on the effective date of annexation. Future extensions of

the system will be made in accordance with existing city policy.

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The affidavit of Mark Robinson, the Planner and Codes Administrator for the City, revealed

that Greene twice requested estimates of the cost to extend sewer service to his property. At

the January 11, 2012 hearing, the City abandoned its summary judgment motion “[b]ecause

of factual conflicts apparent from the opposing summary judgment affidavits filed by the

parties over the 1985 plan of services declaratory judgment issues which involve the Greene

property.”

According to the City, an alleged services “deprived” property owner such as Greene

would first have to obtain a Tennessee Code Annotated section 6-51-108(d) judgment that

the City is actually in “default” on an earlier annexation plan of services before the appellants

could legally assert that “default” as a Tennessee Code Annotated section 6-51-102(b)(5) bar

in the current quo warranto annexation challenge. The City stated it had no notice of

Greene’s claim until he testified as a surprise rebuttal witness at the Area #1 trial.

The trial court granted the City’s motion to dismiss on the grounds that the statutory

amendments to the provisions of Tennessee Code Annotated section 6-51-102(b)(5) and

Tennessee Code Annotated section 6-51-108(d), upon which the appellants were relying to

support their amended declaratory judgment claim that the City was barred from annexing

the Area #2 properties, had been added to the state’s annexation statues by Chapter 1101 of

the 1998 Session Laws and could not be retroactively applied to the City’s alleged default

on any pre-1998 annexation plan of services. The trial court did not rule on the City’s

alternative arguments. From the bench, the court made the following observations:

Well, here’s what I think. I think the Motion to Dismiss is good and I will

sustain it. Number one, I think that the [sic] 6-51-102(b)(5) came into the

Statute in 1998.

But I do not think that the Statute can or should be construed to hold that a

default on a Plan of Services, assuming there was a default on Plan of Services

of a 1985 Annexation could constitute a defense to a post 1998 Annexation.

In other words, I agree with Mr. DeVault and Mr. Hurst that the Statute must

be given prospective effect and that to give the Statute prospective effect it

must be construed to mean that any defaults on Plans of Services which

would constitute a bar to other annexations must be defaults on post 1998

Annexations.

In other words, defaults after the Cities across the State of Tennessee,

including Newport, were given notice that, look, if you’re in default on a Plan

of Services you won’t be able to annex anything else. That’s what I think.

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. . . [O]f course that’s dispositive of the motion by itself. I might say this, on

the issue of whether or not 6-51-102(b)(5), that is the section which would

make a defense to an Annexation, that there was a default in a previous Plan

of Services.

On the issue of whether that Section means the same thing as 6-51-108(d).

That is to say that you have to go through the 6-51-108(d) procedure and

have a hearing and have the City determined to be in the default, before that

default can be asserted as a defense to an Annexation, that’s a closer

question in the Court’s mind.

Because I have listened to both sides and it could be, it could be construed

either way. Quite frankly, in the way that Mr. DeVault would have it and

believes it should be construed is, look, 6-51-102(b)(5) quite simply is the

same thing, means the same thing as 6-51-108(d). It’s just telling you that

when you go through that 108(d) procedure there is the defense available

under 102(b)(5).

It could be construed that way. His argument is, look, Judge, they both came

in, both of those Sections came in in the same Act in 1998. You’ve got to read

them together, and when you read them together that is the proper construction

to arrive at the intention of the Legislature.

On the other hand, Mr. Buuck argues that, as we’ve talked about, well, look,

Judge, it’s not necessarily that way at all. It could be aimed at the fact that

there are two separate Sections, neither one of them referring to the other,

neither one of them incorporating the other, could mean and in Mr. Buuck’s

opinion does mean that they’re aimed at separate interests.

108 is aimed at the interest of the aggrieved property owner in the last

Annexation, who hasn’t been provided with the Plan of Services, and gives

him a way to force the City to give him his Plan of Services, and by the way,

a way to enjoin the City from any further Annexations.

But 102(b)5 is aimed at an altogether different interest, and that is the

interest of the people in the new Annexation, who may use that failure in the

Plan of Services under the old Annexation for an entirely different purpose,

that is, not to force the City to, not to force the City to give the services at all,

to the people in the old Annexation, because they may not have even sued for

it.

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Those people in the old Annexation may not have even sued for it, as Mr.

Greene here, has not. But rather on behalf of the people in the new annexed

area to give them a defense to themselves being annexed. So, that’s a close

question to me.

And I suppose in the absence of any Legislative history, which would tell me

how are those two Sections to be construed, and I those two, how those two

Sections are to be construed is ambiguous, I’ll just tell you, that’s my opinion.

In the absence of any Legislative history to tell me how they’re to be construed

I’d be inclined to agree with Mr. Buuck, that the two Sections are aimed at two

different interests, and that if they were meant to be interconnected. . . .

If 6-51-102(b)(5) were aimed only at the same thing that 6-51-108(d) was

aimed at, then why would you need 102(b)5 at all, why would you need it,

why would the Legislature not have just left it out.

If the only procedure you’ve got to stop the City from annexing because of

the failure in a prior Plan of Services is that injunction procedure in 108(d).

If that’s the only procedure you’ve got, then why would you even need

102(b)(5).

However, I do think on the, I do agree with, I said earlier, I do agree with Mr.

DeVault and Mr. Hurst on the retroactivity argument that, I cannot construe

this Statute to mean that a default in a Plan of Services under a 1985

Annexation, assuming there was a default, can constitute a defense to a post

1998 Annexation.

And so, and by the way, on the, I do also agree with Mr. DeVault and Mr.

Hurst on the matter of the, assuming the City failed to file the required, the

Annual Reports on Annexation.

There’s nothing about that Statute that indicates at all that any such failure was

intended to be or should be construed to be a defense to an Annexation, and

indeed that Statute provides a remedy for failures by the City to comply with

it. And the remedy does not include a prohibition against further Annexations.

. . .

(Emphasis added.). The trial court noted in its final judgment:

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Because of the significance of the annexation plan of service default claims

raised by the plaintiffs in their amended complaint and the acknowledgment

that a judicial finding that an alleged default by the City on a 1985 annexation

plan of services would bar the City from having annexed the plaintiffs’ Area

#2 properties by ordinance in 2008, independent of the quo warranto

proceedings of T.C.A. § 6-51-103, and independent of the burden of proof

requirements set out in T.C.A. § 6-58-111 as to the validity of the City’s 2008

annexation ordinance and because a judicial finding that the defendant’s

alleged failure to have published annual reports on the progress of the

implementation of its pre-1998 and post-1998 annexation plans of service

could also bar the 2008 annexation of the plaintiff[s’] properties, this Court is

of the opinion that an immediate appeal of these issues is necessary for the

prompt and efficient resolution of this case and is in the best interests of

justice. A resolution of these issues by the Tennessee appellate courts will

provide this Court and the parties with affirmative judicial direction regarding

the scope and extent of the future trial proceedings which will be required in

this case. An appeal at this time will preclude the annexation quo warranto

challenge from having to be tried a second time at substantial additional

expense to the parties and with the additional expenditure of judicial resources.

. . .

The appellants filed a timely notice of appeal.

II. ISSUES

The following issues have been raised in this appeal:

A. Whether a municipality, after the enactment of Tennessee Code Annotated

section 6-51-102(b)(5), may annex “any new territory” if it is in default on

“any plan of services?”

B. Whether the appellants are entitled to a jury trial to determine any material

facts at issue in this declaratory judgment action?

III. STANDARD OF REVIEW

The trial court dismissed the amended complaint pursuant to Rule 12.02(6) of the

Tennessee Rules of Civil Procedure. A Rule 12.02(6) motion tests only the legal sufficiency

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of the complaint, not the strength of the proof. The resolution of the motion is determined

by an examination of the pleadings alone. Cook ex rel. Uithoven v. Spinnaker’s of Rivergate,

Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In considering a motion to dismiss, courts must

construe the assertions in the complaint liberally; the motion cannot be sustained unless it

appears that there are no facts warranting relief. Cook, 878 S.W.2d at 938. On appeal, all

allegations of fact by the plaintiffs must be taken as true. Stein v. Davidson Hotel Co., 945

S.W.2d 714, 716 (Tenn. 1997).

Interpretation of a statute is a question of law, which is reviewed on appeal de novo

with no presumption of correctness. Waddle v. Elrod, 367 S.W.3d 217, 222 (Tenn. 2012);

Brundage v. Cumberland Cnty., 357 S.W.3d 361, 364 (Tenn. 2011). In construing an

ordinance

to ascertain whether the actions of the municipality are in compliance with the

statute, this Court must ascertain and give effect to the legislative intent and

the ordinary meaning of the language of the statutes. Carson Creek Vacation

Resorts, Inc. v. Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993).

Unambiguous statutes must be construed to mean what they say. Montgomery

v. Hoskins, 222 Tenn. 45, 47, 432 S.W.2d 654, 655 (1968). The “legislative

intent or purpose is to be ascertained primarily from the natural and ordinary

meaning of the language used . . . without any forced or subtle construction to

limit or extend the import of the language.” Worrall v. Kroger Co., 545

S.W.2d 736, 738 (Tenn. 1977); State v. Sliger, 846 S.W.2d 262, 263 (Tenn.

1993).

State ex rel. Earhart v. City of Bristol, 970 S.W.2d 948, 951 (Tenn. 1998).

IV. DISCUSSION

A.

In Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d 695 (Tenn. 2009), the

Supreme Court discussed the purposes and goals of the 1998 annexation revisions:

In 1998 (shortly after the City of Memphis enacted Ordinance No. 4513 in

regard to the annexation of Area 42) the General Assembly adopted additional

amendments further refining the procedures for annexation and quo warranto

challenges. Act of May 1, 1998, 1998 Tenn. Pub. Acts 1157 (the “1998

Amendments”); see also State ex rel. Tipton v. City of Knoxville, 205 S.W.3d

456, 465-68 (Tenn. Ct. App. 2006) (upholding constitutionality of 1998

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Amendments, perm. app. denied (Tenn. 2006)). Under the 1998 Amendments,

local governments in each county adopt a comprehensive growth plan

identifying “urban growth boundaries,” “planned growth areas,” and “rural

areas” therein. Act of May 1, 1998, §§ 1, 5 (codified as amended at Tenn.

Code Ann. §§ 6-58-101, -104 (2005)). A municipality may annex an area

within its urban growth boundaries using methods established by the 1955 Act,

and a property owner challenging that annexation via a quo warranto

proceeding will bear the burden of showing that the annexation “is

unreasonable for the overall well-being of the communities involved” or that

“[t]he health, safety, and welfare of the citizens and property owners of the

municipality and territory will not be materially retarded in the absence of such

annexation.” Act of May 1, 1998, § 12(a) (codified as amended at Tenn. Code

Ann. § 6-58-111(a) Supp. 2008)). Moreover, the case will be heard without

a jury. Tenn. Code Ann. § 6-58-111(b). If, however, the municipality wishes

to annex an area outside its growth boundaries, it must either propose an

amendment to the growth plan or rely on the referendum annexation method.

Act of May 1, 1998, § 6-58-111(c)(d) (2008)). Thus, the 1998 Amendments

reflect a balance. While, on one hand, the new restrictions discourage

annexations that extend beyond a city’s predicted area of growth, on the other,

the 1998 Amendments assure that a municipality will not bear the burden of

proof in a quo warranto challenge when it does exercise its power within

predicted boundaries. See Tipton, 205 S.W.3d at 460 (discussing “significant

differences” in quo warranto procedures under the 1998 Amendments and the

“older framework”).

Highwoods Props., 297 S.W.3d at 706-707. This case involves the annexation of territory

within the City’s urban growth boundary. The City therefore contends that the provisions

of 6-51-111 present the exclusive judicial mechanism by which aggrieved property owners

like the appellants may challenge the annexation.

Tennessee Code Annotated section 6-58-111 states:

(a) [A municipality possesses exclusive authority to annex territory located

within its approved urban growth boundaries; therefore, no municipality may

annex by ordinance or by referendum any territory located within another

municipality’s approved urban growth boundaries.] Within a municipality’s

2

approved urban growth boundaries, a municipality may use any of the methods

The bracketed and italicized language was added by Section 1 of Chapter 246 of the Session Laws 2

of 2005. 

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in chapter 51 of this title to annex territory; provided, that if a quo warranto

action is filed to challenge the annexation, the party filing the action has the

burden of proving that:

(1) An annexation ordinance is unreasonable for the overall

well-being of the communities involved; or

(2) The health, safety, and welfare of the citizens and property

owners of the municipality and territory will not be materially

retarded in the absence of such annexation.

(b) In any such action, the action shall be tried by the circuit court judge or

chancellor without a jury.

Tenn. Code Ann. § 6-58-111.

Tennessee Code Annotated section 6-51-102(b)(5) providesthat a municipality cannot

annex additional properties if it is “in default” on any earlier annexation plan of services:

A municipality may not annex any other territory if the municipality is in

default on any prior plan of services.

Tenn. Code Ann. § 6-51-102(b)(5). Read in a vacuum, the statute does not explain how

anyone is supposed to establish that a city is actually “in default,” who has the legal standing

to complain initially that a city is “in default,” or what criteria has to be utilized in order to

determine whether a city may actually be adjudged to be “in default.”

At the same time Tennessee Code Annotated section 6-51-102, was amended, the

legislature enacted new provisions codified at Tennessee Code Annotated section 6-51-

108(d) that grant any current municipal property owner who claims his property has been

denied municipal services promised him in an earlier plan of services standing to file and

pursue an action against the city. The statute provides:

(d) An aggrieved property owner in the annexed territory may bring an action

in the appropriate court of equity jurisdiction to enforce the plan of services at

any time after one hundred eighty (180) days after an annexation by ordinance

takes effect and until the plan of services is fulfilled, and may bring an action

to challenge the legality of an amendment to a plan of services if such action

is brought within thirty (30) days after the adoption of the amendment to the

plan of services. If the court finds that the municipality has amended the plan

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of services in an unlawful manner, then the court shall decree the amendment

null and void and shall reinstate the previous plan of services. If the court

finds that the municipality has materially and substantially failed to comply

with its plan of services for the territory in question, then the municipality shall

be given the opportunity to show cause why the plan of services was not

carried out. If the court finds that the municipality’s failure is due to natural

disaster, act of war, act of terrorism, or reasonably unforeseen circumstances

beyond the control of the municipality that materially and substantially

impeded the ability of the municipality to carry out the plan of services, then

the court shall alter the timetable of the plan of services so as to allow the

municipality to comply with the plan of services in a reasonable time and

manner. If the court finds that the municipality’s failure was not due to natural

disaster, act of war, act of terrorism, or reasonably unforeseen circumstances

beyond the control of the municipality that materially and substantially

impeded the ability of the municipality to carry out the plan of services, then

the court shall issue a writ of mandamus to compel the municipality to provide

the services contained in the plan, shall establish a timetable for the provision

of the services in question, and shall enjoin the municipality from any further

annexations until the services subject to the court’s order have been provided

to the court’s satisfaction, at which time the court shall dissolve its injunction.

If the court determines that the municipality has failed without cause to comply

with the plan of services or has unlawfully amended its plan of services, the

court shall assess the costs of the suit against the municipality.

Tenn. Code Ann. § 6-51-108(d).

The City contends that the appellants’ complaint was brought under the provisions of

Tennessee Code Annotated section 6-51-111, and that the appellants cannot graft their claim

regarding the annexation plan of services “default” bar onto the quo warranto

“reasonableness” and “necessary” criteria. It contendssection 6-51-108(d) describesthe only

process to establish default by a city and argues that the amended claim fails to state a claim

upon which relief can be granted under Rule 12.02(6) of the Tennessee Rules of Civil

Procedure.

The appellants contend that the ordinary meaning of Tennessee Code Annotated

section 6-51-102(b)(5) is clear – a municipality may not annex “any other territory” if the

municipality is in default on “any prior plan of services.” They assert that the legislature

added the statute as a mandatory pre-condition of annexation.

Declaratory relief was allowed in State of Tennessee, ex rel. Earhart v. City of Bristol,

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970 S.W.2d 948 (Tenn. 1998). In that case, the quo warranto plaintiffs challenged the

validity of a prior annexation ordinance. The Court noted:

“. . . But if quo warranto is not an adequate remedy, it will not be a bar to

alternative remedies.” 65 Am. Jur.2d Quo Warranto § 7 (1972). The

availability of other remediesisspecifically acknowledged in section 6-51-113

(1992), which provides, “Except as specifically provided in this part, the

powers conferred by this part shall be in addition and supplemental to, and the

limitations imposed by this part shall not affect the powers conferred by any

other general, special or local law.” The Tennessee Declaratory Judgment Act

is just such another general law conferring the power to challenge the validity

and construction of statutes and municipal ordinances. Under the Declaratory

Judgment Act,

Any person . . . whose rights, status, or other legal relations are

affected by a statute, [or] municipal ordinance, . . . may have

determined any question of construction or validity arising under

the . . . statute, [or] ordinance, . . . and obtain a declaration of

rights, status or other legal relations thereunder. Tenn. Code

Ann. § 29-14-103(1980).

Earhart, 970 S.W.2d at 952-953. The Court sent the case back to the trial court for a

determination of the validity of the prior ordinance.

In our view, the appellants may pursue their declaratory judgment claim. They are

challenging the validity of the City’s 2008 annexation ordinance alleged to exceed the

authority delegated by the legislature pursuant to Tennessee Code Annotated section 6-51-

102(b)(5). See Earhart, 970 S.W.2d at 954. Further, the remedy available to the appellants

3

by quo warranto is ineffective to contest the relevant issue. The claim is not a procedural

defect; the appellants have raised a colorable claim that the ordinance is void pursuant to the

statute. See Highwoods Props., 297 S.W.3d at 708-709. We further note that the City has

conceded that the quo warranto statute provides no remedy to the appellants for the City’s

default in a prior plan of services and that the appellants cannot assert a “plan of services

default” bar under the annexation quo warranto statute.

We presume that the legislature is aware of the Earhart decision and that case’s reliance upon 3

Tennessee Code Annotated section 6-51-113 as support for the declaratory judgmentremedy. By re-enacting

the statute without revision, we conclude the legislature approved the utilization of declaratory judgment in

certain annexation matters.

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Of course, the City does not agree with the appellants that it is “in default” on any

earlier plan of services, including Greene’s 1985 annexation plan of services. There are

obviously disputed issues of fact in this case and the City is entitled to a trial before it can be

legally declared in default” on any earlier annexation plan of services and be barred from

exercising its statutory right to annex. Therefore, if the trial court erred in its retroactivity

analysis, this case must be remanded for trial on the declaratory judgment claim.

According to the City, annexations that took place in the 1980s and early 1990s are

not within the purview of the 1998 “plan of services default” provision. The appellants

contend that they do not seek any retroactive application of the statute, as they are not asking

the City to comply with Greene’s plan of services. They assert that Greene is simply a

witness in this case to the fact that the City is in default on a prior plan of services within the

meaning of the statute. The appellants seek to invalidate the 2008 ordinances. Thus, the

appellants’ claim requires only a prospective application of section 6-51-102(b)(5).

We find that the 1998 provisions do include compliance with the City’s earlier plans

of services and conclude that the trial court erred in dismissing the appellants’ declaratory

judgment claim on the basis of improper retroactive application of Tennessee Code

Annotated section 6-51-102(b)(5). Thus, we must reverse the judgment and remand this

action to the trial court. We express no opinion as to the eventual result of this litigation after

further proceedings.

B.

The trial court initially ruled that the appellants were not entitled to a jury trial as

requested because the matter was brought as a quo warranto proceeding under Tennessee

Code Annotated section 6-58-111(b). The trial court subsequently permitted the appellants

to amend the complaint to challenge the plan of services default issue pursuant to the

Declaratory Judgment Act, Tennessee Code Annotated section 29-14-101, et seq. Trial by

jury is authorized in declaratory judgment actions pursuant to Rule 57 of the Tennessee Rules

of Civil Procedure:

The procedure for obtaining a declaratory judgment pursuant to Tenn. Code

Ann. 29-14-101 et seq., shall be in accordance with these rules, and the right

to trial by jury may be demanded under the circumstances and in the manner

provided in Rules 38 and 39. The existence of another adequate remedy does

not necessarily preclude a judgment for declaratory relief in cases where it is

appropriate. . . .

Further, as noted in Tennessee Code Annotated section 21-1-103, “[e]ither party to a suit in

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chancery is entitled, upon application, to a jury to try and determine any material fact in

dispute . . . .” The City did not respond to this issue or otherwise oppose the right to a jury

trial to address the material factual issues necessary to determine the prior plan of services

default issue. We find that a jury is authorized.

V. CONCLUSION

The judgment of the trial court is reversed. We remand this matter to the trial court

to determine any and all factual issues necessary concerning the validity of the ordinances

at issue, including whether the City is in default on any prior services. Trial by a jury is

authorized. Costs on appeal are taxed to the City of Newport, Tennessee.

_________________________________

JOHN W. McCLARTY, JUDGE

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