### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs November 9

, 2015

I N 

### R E 

### MACEDONIA C EMETE RY

Appeal from the Chancery Court for Clay County

No

. 4053 Hon. Ronald Thurman
, Chancellor

No. M2013

- 02169

- COA

- R3

- CV

– Filed January 15, 2015

This appeal involves a motion to set aside a declaratory judgment action involving a

cemetery . Service to the community at large was made by publication. No answer, pleading, or response of an y kind was filed within the time allowed by the court. Following a hearing, t he trial court provided the Macedonia Cemetery Board of Trustees with the exclusive authority to oversee operation and maintenance of the c emetery. The respondents filed a motion to set aside the judgment, claiming they had not received notice of the hearing. The court denied the motion. The respondents appeal. We dismiss the appeal for failure to comply with Rule 27 of the Rules of Appellate Procedure and

Rule 6 of the R ules of the Court of Appeals , as such the judgment of the trial court is

affirmed

.

Tenn. R. App. P. 3 Appeal as of R ight ; Appeal Dismissed ; Case Remanded

J O HN W. M C C LARTY

, J.

, delivered the opinion of the Co urt, in which F RANK G.

C LEMENT

, J R

. , P.J., M.S., and B RANDON O. G IBSON

, J., joined.

Kelly R. Williams, Livingston , Tennessee , fo r the appellants, Mitchell Strode and Randy

Strode

.

Michael R. Giaimo , Cookeville, Tennessee, for the appell ee
, the Macedonia Missionary Baptist Church

.

OPINION

I. BACKGROUND

On November 8, 2012, the Macedonia Missionary Baptist Church (“the Church”) filed a petition for declaratory relief in which the Church sought to determine the rights- 2

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and responsibilities of the Church and community regarding the Macedonia Cemetery (“the Cemetery”) and to establish a trust to oversee and maintain the cemetery and set rules regarding its use. The Cemetery is adjacent to the Church and comprised of land that was deeded to the general public in 1967 and 1986 for use as a public cemetery

.

Personal service of process was dispensed with in this case because the number and location of potential interested parties in the community at

- large was unknown.

Acco rdingly, t he trial court ordered service of process by publication

. The notice , dated May 8, 2013, provided as follows:

NOTICE

Please take notice that the Macedonia Missionary Baptist Church, has filed a petition in the Chancery Court for Clay County, Tennessee, Case No. 4053, to determine the rights and responsibilities of the church and community regarding the Macedonia Cemetery and to establish a trust to oversee and maintain the cemetery and set reasonable rules regarding its

use.

That on the 15 th day of April, 2013, Ronald Thurman, Chancellor, entered an order providing that notice shall be given for four (4) consecutive wee ks in a newspaper in Clay County, Tennessee, and that any party wishing to file an answer or responsive pleading relative to the Macedonia Cemetery shall have thirty (30) days from the date of the final publication. Absent any person filing an answer or r esponsive pleading, the Court shall enter an order declaring the rights and manner of operation of the Macedonia Cemetery.

The notice appeared in the Dale Hollow Horizon , a weekly newspaper of general circulation in Clay County, on May 15, May 22, May 2 9, and June 5, 2013. Having received no answer or responsive pleading, the court entered an order on August 28, 2013, providing the Macedonia Cemetery Board of Trustees with the exclusive authority

to oversee the operation and maintenance of the Cemetery.

On September 25, 2013, Mitchell Strode and Randy Charles Strode (collectively “Respondents”) filed a notice of appeal. On October 9, 2013 , Respondents filed a motion to set aside the declaratory judgment pursuant to Rule 60 of the Te nnessee Rules of C ivil Procedure, a response to the petition for declaratory relief, and a counter

- petition. Respondents alleged that the judgment should be set aside because it was entered by “surprise” when neither they nor other interested parties had received notice of the action. They also raised a myriad of issues regarding the current oversight of the Cemetery. This- 3

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court remanded the action to the trial court for consideration of the Rule 60 motion. Upon remand, t he trial court denied the motion, finding that Res pondents had failed to present any proof entitling them to relief. Our consideration of the appeal followed.

II. ISSUE S

We consolidate and restate the issue s raised on appeal as follows:

A. Whether the appeal should be dismissed for failure to comply with Rule 27 of the Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals.

B. Whether the trial court erred in denying the motion to set aside the judgment

.

III. STANDARD OF REVIEW

We review a trial court’ s award or denial of relief pursuant to Rule 60.02 of the

Tennessee Rules of Civil Procedure under an abuse of discretion standard. Federated

Ins. Co. v. Lethcoe

, 18 S.W.3d 621, 624 (Tenn. 2000); Underwood v. Zurich Ins. Co.

, 854 S .W.2d 94, 97 (Tenn. 199 3); Ferguson v. Brown

, 291 S.W.3d 381, 386 (Tenn. Ct. App. 2008). Unless the trial court abused its discretion, its ruling on such motions may not be reversed on appeal. Id. A trial court abuses its discretion only when it “applies an incorrect legal st andard, or reaches a decision which is against logic or reasoning or that causes an injustice to the party complaining.” Eldridge v. Eldridge

, 42 S.W.3d 82, 85 (Tenn. 2001); State v. Shirley

, 6 S.W.3d 243, 247 (Tenn. 1999).

IV. DISCUSSION

A. & B.

As a threshold iss ue, we must address the deficiencies in Respondents’ brief. The

Church claims that the appeal should be dismissed for failure to comply with Rule 27 of

the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the C ourt of Appe als when Respondents presented a “mishmash of citation to documents filed with the [c]ourt, conclusory statements, and factual assertions without any c itation.” The

Church assert s that Respondents failed to properly outline the issues for appeal and provi de a statement of the applicable standard of review.- 4

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Rule 27 (a) of the Tennessee Rules of Appellate Procedure sets forth the requirements for the content and form of an appellant’s brief as follows:

(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited;

(3) A jurisdictional statement in cases appealed to the Supreme Court directly from the trial court indicating briefly the jurisdictional grounds for the appeal to the Supreme Court;

(4) A statement of t he issues presented for review;

(5) A statement of the case, indicating briefly the nature of the case, the course of proceedings, and its disposition in the court below;

(6) A statement of facts, setting forth the facts relevant to the issues presented for revi ew with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument, setting forth:

A. the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the conte ntions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on; and

B. for each issue, a concise statement of the applicable standard of review (which may appear in the dis cussion of the issue or under a separate heading placed before the discussion of the issues);

(8) A short conclusion, stating the precise relief sought.- 5

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Nonetheless, Rule 27(b) 1 provides that if an appellee deems the statement of the issues,

statement of the case, stateme nt of the facts , or the applicable standard of review provided in the brief unsatisfactory, then it is permissible for the appellee to provide such

sections in his or her brief.

Rule 6 of the Rules of the Court of Appeals provides the follo wing additional requirements:

(a) Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous

action of the trial court which raises the issue and a statement by the appellee of any action of the t rial court which is relied upon to correct the alleged error, with citation to the record

where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to the attention of the trial judge with

citat ion to that par t of the record where appellant’ s challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded.

(4) A st atement of each determinative fact relied upon

with citation to the record where evidence of each such fact may be found.

(b) No complaint of or reliance upon action by the trial court will be considered on appeal unless the argument contains a specific refer ence to the page or pages of the record where such action is recorded. No assertion of fact will be considered on appeal unless the argument contains a reference to the page or pages of the record where evidence of such fact is

recorded.

1 “ Brief of the Appellee. The brief of appellee and all other parties shall conform to the foregoing requirements, except that items (3), (4), (5) (6) and 7(B) of subdivision (a) of this rule need not be included except to the extent that the presentation by the appellant is deem ed unsatisfactory. If appellee is also requesting relief from the judgment, the brief of the appellee shall contain the issues and arguments involved in his request for relief as well as the answer to the brief of appellant. ” Tenn. R. App. P. 27(b).- 6

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“[F]ailure to co mply with the Rules of Appellate Procedure and the rules of this

Court waives the issues for review.” Bean v. Bean , 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000) (citations omitted). Here, Respondents failed to cite any portion of the record in the argument sec tion of the brief, raised issues not properly before the court, and failed to identify the appropriate standard of review. Other than a cursory statement that the judgment was entered by surprise, Respondents failed to argue why they are entitled to

relie f from the judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure. Respondents failed to even cite Rule 60 of the Tennessee Rules of Civil Procedure in the argument section of their brief

. “[T]he failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.” Id. Accordingly, we decline to address

the issues raised and dismiss the appeal.

V. CONCLUSION

Th is appeal is dismissed , and th is case is remanded to the trial court for collection

of costs assessed below. Costs of the appeal are taxed equally t o the appellant s
, Mitchell Strode and Randy Strode , and their surety, if any, for which execution may issue, if

necessary

.

_________________________________ JOHN W. Mc CLARTY , JUDGE