# FILED February 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ MCNAIRY COUNTY, TENNESSEE, Plaintiff-Appellee, McNairy Circuit No. 4624 Vs. C.A. No. 02A01-9808-CV-00234 JOHN SELLERS, Defendant-App

ellant.

__________________________________________________ __________________________ FROM THE MCNAIRY COU NTY CIRCUIT COURT THE HONORABLE JON KERRY BLACKWOOD, JUDGE

Stephen Craig Kennedy; Deusner & Kennedy of Selmer

For Appellee John Sellers, Pro Se

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE HOLLY KIRBY LILLARD, JU DGE This case concerns

a controversy ov

er solid waste col

lection fees. De

fendant-Appell

ant, John Sellers, appeals from the order of the trial court granting summary ju

dgment toPlaintiffAppellee, McNairy County, Tennessee.2 In June of 1996, the McNairy County Commission implemented a d oor-to -door collection of solid waste for ruralMcNairy County residents. In order to carry out this service, the McNairy County Commi ssion entered into

a contract with a

private company for the w

eekly pickup of the solid waste. The McNairy County Commission assessed a monthly fee of $7.50 per household for this service. Mr. Sellers is a resident of McNairy County, Tennessee and is subject to the monthl y collection fee. Since the inc eption of the garb

age collection se

rvice, Mr. Seller

s has f ailed or refused to pay the monthly co

llection fee. As o

f May 21, 1998, Mr. Seller s was indebted to McNairy County for the total sum of $334.82. On March 9, 1998, McN

airy County

filed a civil warrant

in the McNairy County General Sessions Court against Mr. Sellers seeking to recover past due solid waste collection fees plus latecharges and the cost of the proceedings. On April 24, 1998, the general sessions judge entered a judgme

nt in favor of McN

airy County agains

tMr. Sellers in the amount of $334.82.

Mr. Sellers filed an a

ppeal to the McNa

iry County Circuit

Court for a

trial de novo . On May 21, 1998, McNairy County fileda motion for summary judgment. On July 2, 1998, the trial court entered an order granting summary judgment to McNairy County. Mr. Sellers has appealed, and the only issue on appea

l is whether the tr

ial court erred

in granting summary judgment to McNairy County. A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the cour t must take the stron

gest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the movin g party that th

ere is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or disco very materials, that th ere is a genuine, material fa ct dis pute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simpl y rely3 upon his pleadings but must set forth specific facts showing that there is a genuine

issue of material

fact for trial. Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appr opriate when the

facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of c

orrectness regarding a trial court's grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgmen

t is de novo on the record be fore this Court. Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997). The Tennessee Legislature has enacted several statutory pr ovision s pertaining to solid waste disposal an

d collection. Solid w

aste disposal is ad

dressed in Chapter 211 of Title 68 of the Tennessee Co

de. Specifically, Tenn. Code Ann. § 68-211-835(g)(1 ) (1996) provide s: In addition to a ny power authorized by title 5, a county, municipality

or solid waste auth

ority is authorize

d to impose

and collect a solid waste disposal fee. Fund s generated from such fees may only be used to e stablish and mainta

in solid waste collection and disposal servi ces, includin

g, b ut not limited to, convenience centers. All residents of th e county shall have acce

ss to these services. The amount of the fee shall bear a rea

sonable r elat ionship to the cost of providing the solid waste disposal services. Such fees shall be segregated from the general fund and shallbe used only for the purposes for which they were collected. Furthermore, Chapter 19 of Title 5 of the Tennessee Code pertains to “ garbage and rubbish collectio

n and disposal serv

ices.” Tenn. Code

Ann. § 5-19-107 (1 998) provides: Powers of counties. -- The several counties are empowered to do all things necessary to provide suc h county-wide or special districtgarbage and rubbish collection an d/or garbage and r ubbish disposal service, including, but not limited to:

* * * (11) Establish schedules of, and collect reasonable charges for, any services rendered in any district or area which are not covered by the special tax levy authorized in § 5-19-108 or §5-19-109 for garbage and rubbish collection and/or disposal in that district or area; Tenn. Code Ann. § 5- 19-108 (1998) pro vides: Such g a rbage and rubbish collection and disposal services may be f inanced in whole or in part by a levy of a tax on al l property in the county only if

all persons in the c

ounty are to

be equally served, but such a

county-wide levy

shall be unlawful i

f any city, town or

special district therein, which, through its own fo rce s or by contract, p rovides such serv

ices within its boundaries,

or if any other part of the county is to be ex cluded from the service area. Tenn. Code Ann. § 5- 19-109(a) and ( b)(1)-(3) (199 8) provides:4 (a) If less than all persons in the county are to be served, the county, if it

chooses to enter i

nto garbage and r

ubbish co llection and disposal activities, must establish a district o r districts within which the service is to be provided. (b) Such county must pay the f ull costs of the services t

o be provided either: (1) From the proceeds of a tax levi ed only on property within the district o

r districts; (2) Fro m the proceeds of a schedule of service charge s levied upon the recipien ts of the services in the district or districts; or (3) From a

combination of both such tax levy and service charge levy. After conside ration of the foregoing statutory p rovisions and other related provisio

ns, this Courtin Horton v. Carroll County , 96 8 S.W.2d 841 (Tenn. App. 1997) concluded that the legislature intended, through the relevant statutory enactmen ts, that a county “may

legally impose a monthly fee on all its rural residents for solid waste disposal services regardless of whether the services ar

e actually utilized.” Id. at 846. The decision in Horton is controlling on the issue before

us. In light of the foregoing, we conclude that the trial court properly granted summary judgmentto McNairy County. Thus, McNairy County may l egally impos e the monthly solid

was te collection fee on its rural residents, including Mr. Sellers, regardless of w hether th e collection services are utilized by such residents. Accordingly, the order of the trial court is affirme d, and the case

is remanded to the trial court for such further pro

ceedings as may b

e necessary. Cos

ts of appeal are

assessed against

the Appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE