### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JUNE 20, 2001 Ses sion JACK COLEMAN, ET AL 

### . v. CITY OF MEMPHIS, ET AL 

### . Direct Appeal from the Chancery Court for Shelby County No. 106266-3; The Honorable D. J. Alissandratos, Chancellor

No. W2000-02865-COA-R3-CV - Filed November 5, 2001

This appeal arises out of a dispute over an annexation ordinance passed by the City of

Memphis. The trial court granted

summary judg

ment to Defendan

ts due to its finding that

Plaintiffs did not pr

operly file a complaint contesting the annexation ordinance. For the following reasons, we affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the cou rt, in whic h W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined.
Richard L. Winc

hester, Jr., Memphi

s, TN, for Appella

nts Allan J. Wade, Lo

ri Hackleman Patt

erson, Memphis, TN

, for Appellee Cit

y of Memphis Gordon B. Olswing, Memphis, TN, for Appellee Town of Arlington, TN
OPINION Facts and Procedural History
The Plaintiffs in this case are citizens who oppose an annexation ordinance adopted by the City of Memphis. The Defendants are the City of Memphis, its may or, and its city council. The annexation in question began on March 6, 1 995, when the city of A rlington approv

ed, on first reading, an ordinance annexing an area south of its city limits. The a r ea which Arlington was attempting to annex encompass ed land lying

north and south

of Highway 6

4. The City of

Memphis considered

this land to be within its established reserve area. As a resu lt, Memphis began annexation proceedings on March 21, 1995, by adopting a resolution evidencing its intent to annex an area that Arlington was attempting to annex.-2-

On April 4, 1995, the Me mphis City

Council(“Council”), held a public hearing on the annexation issue and on a proposed plan of services. Then, the Council adopted, on first rea ding, an ann exation ordinance called the Bridgewater-Countrywood- Eads Study Area 39 (“annexation o rdinance” or the “ordinanc e”). The Council a

pproved the anne

xation ordinance on

it s secon d reading on April18, 1995. The third reading of the ordinance was delaye d until August 1, 1995, to a llow Arlin gt on and Memphis to try to negotiate an a

greement reg

arding their re

serve areas. However, the negotiations did not result in an agreement.
On August 1, 1995, the Memphis City Cou

ncil unanimousl

y adop ted the annexation ordinance on its third reading. At the Coun cil’s next meeting, however, on August 15, 1995, before the minute s of the pri or meeting were approved, a council member moved to reconsider the ordinance adopted by t

he Council on Augu

st 1, 1995, and to delay the third reading of the ordinance until September 5, 1995. The motion to reconsider was seconded by another council member. After somedis cus sio n, t he C oun cil app rov ed t he m oti on t o rec ons ide r and del aye d cons ideration of the ordinance until September 5, 1995.
At the September 5, 1995, council meeting, the mayor of Memphis recommende d that the Council delay final

reading of the

ordinance until he

and the mayo

r of Arlington c

ould try to se

ttle their disputes outside of court. After discussion and debate regarding the boundaries of the proposed annexation area, the Council voted to delay action on the ordinance until September 19, 1995.
On September 19, 1995 , the Memphis Ci ty Counci l considered the annexation ordinance again. The Annexation Co mmittee h ad previously considered the ordinance. As a result, the ordinance that was presente d to Council reflected different boundariesfor the annexation area than those that were passed on first and second readings. After debate and input from citizens affected by the proposed annexation, the Council approved the ordinance with the new boundaries.
On August 29, 1995, Plaintiffs filed a Complaint for Declaratory Judgment and in the Nature of a Quo Warranto

Proceeding. Plaintiffs attached a copy of the ordinance entitled BridgewaterCountrywood-EadsStudy Area Number 39 to their Complaint. Defendants submit that, at the time the Complaint was filed, the ordinance that th e Plaintiffs attac

hed to their Complaint was not signed or approved by the city. The De fendants contend

that the ordinance was not signed and approved until September 19, 1995.
Plaintiffs filed a Motion for Summa ry Judgment on June 17, 1999. The trial court denied Plaintiffs’ motion on September 3, 1999. Defendants filed a Motion for Summary Judgmen t on August 20, 1999, which the trial court heard on October 6, 2000. The court granted Defendants’ Motion for Summary

Judgment, finding that

the annexation ordinance had not been finally adopted until September 19, 1995. Furthermore, the court found that Plaintiffs had f ailed to fi le a proper complaint within thirty days of the

ordinance’s finalpassage as required by sections 6-51-102(a)( 1) and 6-51-103(a)(1)(a) of the Tennessee Code.-3-

Plaintiffs then filed a Motion for Relief from Judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure. The trial court denied the Motion. Plaintiffs appeal the judgment of the court below, and raise the following issues, as we perceive them, for our review:
I. Whether the trial c ourt erred in den

ying Plainti

ffs’ Motion for Summ

ary Judgmen

t. II. Whether the trial court erred in entering the “Agreed Order.” III. Whether the trial c ourt erred in gr

anting Defenda

nts’ Motion for Summa

ry Judgment. Additionally, the Defendants raise the following two issues for our review: I. Whether the trial c ourt had subject ma

tter jurisdiction to

consider Plaintiff

s’ Complaint. II. Whether

the annexation ordinance adopted by Defendants is unreasonable as a ma tter of law.
Standard of Review
Summar yjudgment is appropriate if the movant demonstrates that no genuine issues of mate rial fact exist and that he is entitled to a judgment as a matter of law. SeeT ENN
. R. C I V
. P

. 56.03. We must take the strongest view of the evidence in favor of the nonmoving party , allowing all reasonable infe

rences in his favor an d discarding all countervailing evidence. See Shadrick v. Coker , 963 S.W.2 d 726, 731 ( Tenn. 1998 ) (citing Byr d v. Hall , 847 S.W.2d 208, 210-11 (Tenn. 1993)). Since our review concerns only questions of law, the trial court's judg ment is not presumed correct,and our review is de novo on the record before this Court. See Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997); Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). Law and Analysis
Init ial ly, we must consider whether the trial court was correct in granting summary judgment to Defendants. As noted above, the annexation ordinance was adopted on three readings: April 4, 1995; April 18, 1995; and August 1, 1995. However, before the Memphis City Council approved the minutes of the August 1, 1995, meeting at which the ordinance was adopted, Councilwoman Vanderschaff

mov ed to reconsider and to delay action on the ordinance until September 5, 1995. After the Council voted to

reconsider th

e ordi nance but before final passage of the ordinance, Plaintiffs filed their Quo Warranto action on August

29, 1995, pursuant to section 6-51-101 et seq. of the Tennessee Code. Plaintiffs challenged the validity and reasonable ness of the ordinance attached to their Complaint. The ordinance that Plaintiff s attached to their Complaint was the ordinan ce that was pas sed on Augus t 1, 1995. D efendants l ater moved f or summary jud gm ent , which the trial court g

ranted, based up

on its finding that

the annexation ordi

nance was final

ly adopted on September 19, 1995, and that Plaintiffs did not file a complaint conte

sting the validity of the annexation ordinance within thirty days of final passage as required by sections 6-51-102(a)(1) and 6-51-103(a)(1)(A) of the Tennessee Code.
We must now determine whether the trial court was correct in its finding that the annexation ordinance was finally

adopted on Septemb

er 19, 1995, and th

at Plaintiffs faile

d to file a complaint contesting this ordinance wit hin the required t

hirty day window after pas sa ge. As noted above,-4-

Council Member Vanderschaff moved, on August 15, 1995, to reconsider and delay action on the annexation ordinance until September 5, 1995. We note that the Memphis’ City Council’s Rules of Procedure provi

de that: Any matter which has appeared on the agenda and has been acted upon by either a majority vote for appr oval or rejec tio n, m ay be br ought before the Council for reconsideration upon proper motion of a C ounc il Member and sec onding motion by

another Council Member. The only requirements for this action are:
1. The Member making th e mo tio n for reconsider

ation must have voted on the prevailing side of the initial vote.
2. Such motion for recons ideration must be ma

de prior to approval of the Mi

nutes in which the f

irst vote was cast

. M EMPH IS C ITY C OU NCIL R ULES O F P. 39. In accordance with the aforementioned rule, Councilwoman Vanderschaff was a member who had voted on the prevailing side of the initial vote, andth e motion f

or reconsideration was made prior to approval of the minutes. Additionally, the motion was p roperl y seconded . Therefore, w

e find that the Coun

cil acted proper

ly in moving t

o reconsider the annexation ordinance. Now, we turn to the question of whether Plaintiffs properly filed their complaint contesting the annexation ordinance. Section 6-51-101 et seq. of the Tennessee Code governs annexation. Section 6-51-102 of the Te nnessee Code allo

ws a municipality

to annex territory

adjo i ning its corporate boundaries upon it

s own initi ative. See

T ENN
. C ODE A NN . § 6-51-102 (1998). An annexation ordinance does n ot become opera

tive until thirty days after final

passage. See id. Section 6-51-103 of the Tennessee Code sets out the procedure for citizens to file suit to contest an annexation ordinan

ce. The statute st

ates that: Any aggrieved owner of property which borders or lies wi thin ter rit ory which is thesubject of an annexation ordinance prior to the operative date t

hereof, may

filea suit in

the nature of a quo warranto proceeding in a

ccordance with

this part, § 6-51-3 01 and title 29, chapter 35 to contest th e val idity thereof on the ground tha

t it reasonably

may not be deemed necessary for the we lfare of the residents and property ow ners of the affected territory and the municipality as a whole and so constitutes an exercise of power not conferred by law.-5-

T ENN
. C ODE A NN
. § 6-51-103 (1998) (emphasis added) . Our supreme cou rt has stated that “ [w]ithin the four corners of that statute lies the entire jurisdiction and authority of the Courts to review the actions of municipalities in enacting annexation ordinances.” City of Oak Rid ge v. Roane Count

y , 563 S.W.2d 895, 897 (Tenn. 1978). In reading section 6-51-103 of the Tennessee Code, we findthat there must be an annexation ordinance that is final before it can be determined whether a plaintiff is an “aggrieved owner of property.” In the instant case, Plaintiffs filed suit on August 29, 1995. At this point, there was no final annexation ordinance. Councilwoman Vand erschaff had p

roperly moved to reconsider the ordinance, and the ordinance was not finally adopted until September 19, 1995. In fact, the

ordinance that w

as finally a

dopte d on Septem ber 19, 1995, was s ubstantially different from the ordinance that

was attached to Plaintiffs’ Complaint, as the finalordinance deleted the Bridgewater community from the annexation are

a. Therefore,

it is apparent that when Plaintiffs filed their suit on August 29, 1995, they were not “aggrieved property owners,” as the ordinance was still being debated and amended throughout the city’s legislative pr ocess. We not e the case of Bastnagel v. Ci ty of Memphis

, 457 S.W.2d 532 (Tenn. 1970 ). I n Bastnagel , the court discussed section 6-51-101 et seq. of the Tennessee Code. The court stated that “it is clear the L

egislature inte

nded to suspend th

e opera tion of the ordinance for thirty days a fter final passage and

under [T.C.A. 6-51-103] any suit filed within this thir ty days would be timel

y filed .” Id. at 533 (emphasis added).
In the instant case, Plaintiffs filed their suit on August 29, 1995, b efor e the Memphis City Council fin all y passed the annexation ordinance in question on September 19, 1995. Due to the aforementioned

statutes and Bastn ag el , we agree with the trial court that Plaintiffs did not file a complaint contesting the validity of the annexation ordinance as finally ado

pted within thirty

days after final passage of the ordinance, which was Septembe r 19, 1 995. We note that “[t]he right to bring a suit pursuant to the autho rit y of [T.C.A. 6-51-103] to review any issue arising out of the adoption of

an annexation ordin

ance . . . expires th

irty day s after the oper

ative date of the ordinance, the courts have no jurisdiction of such suits thereafter.” City of Oak Rid ge , 563 S.W.2d at 897. Since Plaintiffs did not amend their complaint or file a new quo warranto action within thirty days after the ordinance’s final passage, the court had no jurisdiction

to hear Plaintiffs’ claim. Therefore, we uphold the trial court’s grant of summary judgment to Defendants. Due to our holding that Plaintiffs did not properly file a complaint contesting the annexation, all othe r issues are pretermitted.-6- Conclusion
Acco rdi ngly, for the afore m entioned reason s, we affirm the j udgment of the tr ial court. Costs on appeal are ta

xed to Plaintiffs-Ap

pellants, Jack W. Cole

man, Mark Siege

l, Dr. Sue Dear, Leslie M. Stratton, II

I, Paul Dixon, John M

c Cormick, J. Hay Brown, Rebecca Moser, Milton Brock and Richard L. Pummill, and their sureties, for which execution may issue if necessary

.

___________________________________ ALAN E. HIGHERS, JUDGE