### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E SEPTEMBER 1 7, 2 00 9 S es si on
RACHEL SUMNER, E T A L 

### . v. MET ROPOLI TAN NASHVI LLE BOARD OF HEAL TH, E T A L


### .

Direc t Appeal from the Chancer y Court for Davidson Cou nty No. 05-2807-IVRichard H. Dink ins, Ch ancellor

No. M2008- 01597-COA-R 3-CV - F iled October 27, 2009

Appellants, citizens of Davidson County
, soug ht revie w of the County ’s mosquito control policies, which wer e in eff

ect in 2005. Upon revie w, the Appellee
, Metropolitan Boa rd of Hea lth of Nashville and Davidson County
, denied Ap p el l an t s’ claim for lack of standing

. The trial court g rante d Appellants’ commo n law writ of cer tiorari and aff

irmed the Boa

rd’s finding s. Upon revie w, we conclude that the Appellants’ have no standing
, and that th e i s sues prese nted are rende red moot based upon the County ’s adoption of a new mosquito control policy in 2008. Affirme d.

Tenn. R. App . P . 3. Appeal as of Right; Judgme nt of th e Chancer y Court Affi rm ed

J

. S T E V E N S T A F F O R D , J
., delivere d the opinion of the court, in which A L A N E. H I G H E R S , P.J
., W.S
., and H O L L Y M. K I R B Y , J ., joined.

J oseph Howell J ohnston, Nashville, Tenne ssee, for the Appellants, Rache l Sumner, Michele Fly nn, Eleanor Sny der, B ruce Wallenstein and Br uce Wood.

Sue B. Cain, J

. Br ooks Fox, Eliz abeth A. Sanders, Nashville, Tenne ssee, for the Appellee s, Metropolitan Gover

nment of Na shville, Davidson County

.

OP INION

On J uly 23, 2005, Rache l Sumner, Michele Fly nn, Eleanor Sny der, Br

uce Wallenstein, and Br uce Wood (tog ether the “Appe llants”) submitt ed a l et t er t o Dr. Stephanie Ba iley
, then-Chief Medica l Direc tor of the Metropolitan Nashville Hea lth Depa rtment. The purpose of this letter was to reque s t a d ecision reg arding the curr ent policies for mosquito control. Specifica lly
, the Appellants’ letter

states:We are conce rned that the health risks of spray ing pesticides have not been weig hed and that the curr ent prog ram could have a strong er emphasis on preve ntativ e methods like many cities that we have mentioned to y ou in the past.

* * *

All petitioners reque st a decision reg arding the cur re nt policies for

m o s q uito control. I n addition, we ask for the cre ation of written policies specific ally outlining the reque sted chang es to policies in order to protec t us from the pesticide b ei n g s p ray ed by the Hea lth Depa rtment befor e any spray

ing takes place in Davidson Co u n t y in 2005.

By letter of Aug ust 4, 2005, Dr. Ba iley inf ormed the Appellants that the issue prese nted would need to be addre ssed by the Metropolitan Na shville Boar d of He alth (the “B oard” ) beca use the Board approved th e Integ rate d Manag ement P lan, which is based upon the C enter for Disease Control’s (“CDC”) g uidelines. To that end, Dr. Ba iley forwa rded the letter to the Boa

rd. On Aug ust 22, 2005, the Appellants sent a letter to the chair man of the Boa

rd, appea ling Dr. Ba iley ’s decision
to ref er the matter to the Boa rd rathe r t h an m ak ing a decision herse lf. The Boa rd addre ssed Appellants’ issue at its Septembe r 13, 2005 meeting

. An attorney for the Boa rd explained that the Boa rd must first deter

mine the issue of standing

. The require ments for standing wer e define d in the appea ls policy under the definition of an “af fec ted p er s o n

. ” The attorney explained that, if the Appellants met the definition of an “af fec ted person,” then the Boa rd would be require d to hear the appea l. Appellant Sumners then spoke on be half of the Appellants, stating :

[T] he p et i t ion is to appea l the Direc tor’s decision to spray for

m o s q u i t oes without looking at the merits of our letter, which sho w that, among other things, that victims wh o called the Hea lth Depa rtment with sy

mptoms from the pesticide direc tly rela ted–some of these people wer e outside in their front y ard with–they wer e lawn

car e worke rs–they wer e spray ed by pesticide, and they ’ve had sy mptoms. They called. They wer e told that the pesticide was safe ; they could not cause the problems.

Following Ms. Sumner’s comments, the attorne y for the B oard e x plained that:

The petiti oners have to show that t h ey have standing. And i n order
to establish that they are an aff ecte d person [si c] under the Code and

as such term is define d in the regulations, they have to show that they suffe red a distinct injury by Dr. Ba iley ’s decision to ref er their letter
to the Boa

rd. The Petitioners cannot show that they suffe red any injury that is differ ent from other citizens of Davidson County that are

-2-reque sting consideration of the Boa rd’s policy on spray

ing. The petitioners J uly 23 letter does not reque st action by Dr. Ba iley on rd this specific spray

ing incident. The letter is just reque sting the policy change. There fore
, they have not met the definiti on of an “af fec ted person” pursuant to the re g ulations.

On S eptember 13, 2005, th e Bo ard unanimously denied the Appellants’ appeal for l ack of standing

. On November 14, 2005, the Appellants filed a petition for common-law writ of cer tiorari in the C h an ce ry Court of Davidson County ag ainst the Board and the M etropolitan Nashville and Davidson County Gover

nment (tog ether “Appe llees”)

. By Orde r of Fe bruar y 3, 2006, the trial court order ed the writ to issue, and order ed Appellee s to prepa re a nd submit a rec ord of the proce eding s g iving r ise to the Boa

rd’s de cision.

Whil e this appea l was pending in the Chance ry Court, on April 8, 2008, the Boa rd formally adopted a new mosquito-control policy . The ne w policy states, in rele vant par

t that:

T h e revised policy of MP HD shall be to spray for adult mosquito es ONL Y when a documented threa t to public health exis ts. Adulticide application will be considere d at the level of CDC risk cate go ry 3 (moderate probability of human outbrea k). In prior y ear s, the threshold for spray

in g wa s i n the CDC risk cate g ory 2 (low probability of human outbreak). Ba sed on prior documented risk, the depar tment expects conditions descr ibed as thresholds for spray ing to be ra rely if eve r met, and f

or spra y ing to be a ra

re e vent.

The minutes of the April 8, 2008 Boa rd meeting are included in th e record, and indicate that “a d ocumented threat to public health” ref ers to mosquito-borne diseases such as West Nile Vi ru s

. Conversely
, “a documented threat to public health” does not ref er simply to “nuisanc e mosquitoes.”

On J une 23, 2008, the Chance ry Court aff irm ed the Boa

rd’s action in dismiss ing the Appellants’ appea l, specific ally h o l d ing that “the Boa rd’s deter mination that Petitioners wer e not aff ecte d persons within the meaning of the policy and code provisions was corr ect and not arbitra ry

. They suffe red no distinct and palpable i njury as a result of Dr. Ba iley ’s refer ral of the l etter to the Boa rd.” A ppellants appe al and r aise five issues for re view as state d in their brief :

1. Whether the trial court err ed in de ny ing Petitioners’ Ora l Motion for Def ault on g rounds t h at R espondents failed to Answer the Amended Petitions for Writ of Certiorar i as require d by T.C.A. §27- 9-110.

2. Whether the trial court err ed in not considering Petitioners’ claim that Respondents’ proce dure for adopting a policy defining standing violated due pr ocess.

-3-3. Whether judicial revie w of [t he] Bo ar d of Hea lth’s improper application of new policy definition of standing was barr ed by the 60- day statute of limitations.

4. Whether the trial court err ed in dismiss ing the Amended Petitions for Writ of Certiorar i on g rounds that Petitioner s had not demonstrated they had standing to complain of the acts and omissions of the B oard of

Hea lth and its Chi ef Me dical Dire ctor.

5. Whether the leg al issues rela ting to sta nding and due proce ss f

all within rec og nized exceptions to the Mootness Doctrine for purposes of appe llate re view despite the lapse of time.

We perc eive t hat the dispositi ve issues in this case are : (1) Whether the Appellants had standing and (2) Whether the appea l is moot. Be fore addre ssing thes e issues, we first note that revie w of the de cision of the Boa rd is by common law writ of cer tiorari pursuant to the provisions of Tenn. Code Ann. §27-9-101, et seq

. The scope of judicial revie w under the common law writ of

cer tiorari i s n arrow and is limit ed to whether the inferior board or tribunal has exceede d its jurisdiction or acte d illega lly
, arbitra rily
, or fra udulently

. Willi

s v. Tenn. Dep’

t of Correction
, 113 S.W .3d 706, 712 (Tenn. 2003)

.

The scope of judicial revie w under the common law writ of cer tiorari also includes a deter mination of whether the decision maker acte d without materia l evidenc e to support its decision. Laffe rty v. C

ity of Wi nchester
, 46 S.W .3d 752, 759 (Tenn. Ct. Ap p

. 2 0 01). Consequently
, while judicial revie w under the common law wr it does not involve review of the intrinsic corr ectne ss of the lower tribunal’s decision, Willi s , 113 S.W .3d at 712, and a revie wing court may not re- weig h the evidenc e prese nted to the board, Gallatin Housi ng Aut h. v. City of Gallatin
, 868 S.W .2d 278, 280 (Tenn. Ct. App. 1 9 93), a court is require d to revie w the rec ord of the board’ s proce eding s to deter mine whether

there is material evide nce to support the boa rd’s c onclusion. Id.

Stand ing

Metropolitan Code of L aws §2.36.140 require s the Boa rd of Hea lth to “hea

r and act u p on complaints of per sons a ffe cted by decisions of the chief medical dire ctor.” To this end, the B oard adopt ed an appea ls policy that includes a preliminary deter mination of whether one seeking to appea l
to the Boa rd meets the definition of “af fec ted person.” Under the Boa rd’s policy
, “af

fec ted person” is defined a s follows:

A person appea lin g a d ecision of the Chief Medica l Direc tor must demonstrate that he or she h[as] suffe red a distinct and palp ab le injury ; that the injury was cause d by the challeng ed conduct and that the injury is apt to be redr essed by t h e re m ed y that the Boa rd of Hea lth may

g rant.

-4-As cor re ctly noted by the trial court, this definition is consistent with the standing

require ment for those seeking cer tiorari review as set forth in City of Brentwood v. Metro. Board of Zonin g Appeals
, 149 S.W .3d 49 (Tenn. Ct. App. 2004). As discussed in City of Brentw ood
, the focus of the standing inquiry

is on the party , not on the merits of the c laim.

I n the instant case , the matter appea led to the Boa rd (as articula ted in the appea l letter to the Boa rd) was Dr. Ba iley ’s decision to ref er the items ref

lected in the Appellants’ J uly 23, 2005 letter
to the Boa rd
, ra t h er t han to “make a decision on the merits of our letter.” Nonethele ss, at the hear ing, the Appellants’ state d their intent as follows:

[T] he intention is not to d eter mine whether Dr. Ba iley has the rig ht
to–to send this to t h e Board to make a decision. This petition is to appea l the Direc tor’s deci s i on to spray for mosquitoes without l o o k i ng at the merits of our letter, which shows that, among ot h er thing s, that victims who called the Hea lth Depa rtment with sy

mpt o ms from the pesticide direc tly rela ted–some of these people wer e outside in t h ei r front y ards with–they wer e lawn car e worke rs–they wer e spray ed by pesticide and they ’ve had sy mptoms. They called. They

wer e told that the pesticide was safe ; they could n ot cause the problems. They wer e not told that those–those sy mptoms wer e rig ht on the MSDS and the first aid tre atment for those sy mptoms.

This is not a one-time occur renc e. This has happene d for the last two y ear s. Wit h ever

y person I ’ve talked to who calls me, saying, I called the Hea lth Depa

rtment, I have problems; they said it was safe ; I was sic k

. W e h ave aff idavits from these people, and we also have–thr ee of them are g oing to be filing a lawsuit for their persona l injuries that wer e spra

y ed last y ear

.

There are many things that are very simple that we have asked this Hea lth Depa

rtment to do to protec t people from the pesticide and
to inform people about the pesticide, and it has not been done, and that’s what this appe al is about.

Although the Appellants contend that their appea l to the Boa rd was based upon “the decision
to spray pesticides,” we disag ree

. Dr. Ba iley made no decision rela tive to the merits of the matters

ra i s ed by Appellants. Rather, the issue appea led was conce rning only Dr. Ba iley ’s decision t o forwa rd the matter to the Boa

rd. Whil e the Boa

rd acknow ledg ed the confusion as to the exact scope and nature of Appellants’ appea l, consistent with its policy on standing
, the Boa rd’s first inquiry was whether the Appellant’s wer e aff ecte d persons rela tive to Dr. Ba iley ’s decision to ref er the letter to the Boa rd. This inquiry require d Appellants to show that: (1) they sustained a distinct and palpable injury ; (2) that the injury was cause d by the challeng ed conduct; and (3) that the inquiry was one that could be r edre ssed by

the B oard.

-5-As noted above, the scope of this Court’s revie w of the decision of the Boa rd is limit ed. We will not scrutinize the intrinsic corr ectne ss of the lower tribunal’s decision and it is not nece ssary that this Court ag ree with the Boa rd’s decision. Laffe rty , 46 S

. W

. 3 d at 752. This Court is only empower ed to deter

mine whether the Boa

rd exceede d its jurisdictio n , followed an unlawful proce dure, acte d illega lly
, arbitra rily
, or fra udulently
, or acte d without materia l evidenc e to support its decision. See, e.g., Falli n v. Knox Co. Bd. Of Com m ’rs
, 656 S.W .2d 228, 342-43 (Tenn. 1983). Tenne ssee courts have define d “mater ial evidenc e” as that “mater ial to the question in controve rsy , which must nece ssarily enter into the consideration of the controve rsy and by itself, or in connec tion with the other evidenc e, be deter minative of the case .” Ful ler v. Tennessee- Carolin a Trans. Co.
, 471 S.W .2d 953, 956 (Tenn. Ct. App. 1970). “Substantial ev i dence ” has been define d as “such eviden ce as re asonable minds might acc ept as adequate to support a conclusion.” Gluck v. Civil Service Com m . , 15 S.W .3d 486, 490 (Tenn. Ct. App. 1999) (citing Pace v. Garbage Disposal Dist.
, 390 S.W .2d 461, 463 (Tenn. Ct. App. 1965)) . I n the contex t of a w rit of ce rtiorai proc eeding , our Supreme C o u rt h as clar ified that both terms–“mate rial evidenc e” and “substantial evidenc e”–a re used intercha

ng eably to indicate the prese nce, or lack there of, of a rational basis for the actions taken by an administrative board. Tennessee Cartage Co. v. Pharr
, 199 S.W .2d 119, 120 (Tenn. 1947). As stated by this Court in Hohenberg Bros. Co. v. Missou ri Pac. R.R. Co.
, 586 S.W .2d 117 (Tenn. Ct. App. 1979), our revie w of the evidenc e is mere ly “a sear ch of the rec ord to asce rtain if materia l evidenc e is prese nt to support the verdic t. I t matters not...where the weig ht or preponde ranc e of the evidenc e lies under a materia l evidenc e revie w.” Id

. at 11 9 (c i t ing Tennessee Cartage Co
, 199 S.W .2d at 120).

Utiliz ing our limit ed scope of revie w, we conclude that the Boa rd in this case followed its proce dure to f

irst de termine whe ther the Appellants wer e, in f act, “af fec ted persons.” Ba sed upon the definition of “af

fec ted perso n , ” s u

p r a , we conclude that the Boa rd’s deter

mination that Appellants wer e not aff

ecte d persons, within the meaning of the p o licy and code provisions, was

corr ect. Fr om our revie w, the Boa rd’s action was not outside its jurisdiction, and was not arbitra ry

. Rather, the Boa

rd followed its stated proce dure and there was m at er i al evidenc e to support its decision. Fr om the totality of the circ umstances, we conclude that the trial court corr ectly found that the Appellants’ wer e not “ aff ecte d persons,” so as to ha ve standing

. Howeve r, even if we assume, that the Appellants’ wer e “af fec ted persons,” we nonetheless conclude that the issue ra i s ed was rende red moot by the Boa

rd’s April 8, 2008 adoption of the new policy conce rning mosquito control.

Mootness

A case will be considere d moot if it no longe r serve s as a means to provide some sort of relief
to the party who may preva il or if it no longe r prese nt s a p re s en t , l ive controve rsy

. McCanless v. K lein
, 188 S.W .2d 745, 747 (Tenn. 1945). Where a matter has been resolved, that cl ai m m u s t b e dismiss ed as moot. Coun ty of Shelby v. Mc Wherter , 936 S.W .2d 923, 931 (Tenn. Ct. App.1996).

A case is not justiciable if it does not involve a g enuine, continuing controve rsy requiring the adjudication of prese ntly exis ting rig hts. State v. Brown & Willi am son Tobacc o Corp
., 18 S.W .3d 186, 193 (Tenn. 2000); Ford Consu m er Fin

. Co. v. C l a y , 984 S.W .2d 615, 616 (Tenn. Ct.

-6-App.1998). A moot case is one that has lost its justiciabilit y beca use it no longe r involves a prese nt, ong oing controve rsy

. McCanless ,188 S.W .2d at 747. A case will be considere d moot if it no longe r

serve s as a means to provide some sort of judi ci al re l i ef t o the preva iling party

. Knot t v. Stewart Coun ty ,207 S.W .2d 337, 338-39 (Tenn. 1948). The determination of wh et h er a ca s e i s moot is a question of law, See, e.g., Orlando Residence, Ltd. v. Nashville L o d g ing Co.
, No. M1999-00943-COA- R 3 -CV, 1999 WL 1040544, at *3 (Tenn. Ct. App. Nov.17, 1999) (No Tenn. R.App. P. 11 application fi l ed ), wh ich decision is revie wed de novo with no presumption of

corr ectne ss. Id .; Cam

pbell v. Florida Steel Corp
., 919 S.W .2d 26, 35 (Tenn.1996)

. Unless the case fits within one of the rec og nized exceptions to the mootness doctrine, courts will dismiss a question

or a c laim that has bec ome moot.

Courts have rec og nized sever al exceptions to the mootness doctrine. Ex erci s i n g t heir discretion, Courts have declined to dismiss case s wh en : (1 ) the issue involves important public interests, McIntyre v. Traughber
, 884 S.W .2d at 137, Docke ry v. Docker y , 559 S.W .2d 952, 954 (Tenn. Ct. App.1977); (2) when the issue is important to the administration of justice, State ex rel. Angl i n v.. Mitchell
, 596 S.W .2d 779, 782 (Tenn.1980) ; and (3) when an issue is capa ble of repe tition but will evade judicial revie w. Id .; see also New Rivieria Arts The atre v. State
, 412 S.W .2d 890, 893 (Tenn. 1967)

.

I n the instant case , the Appellants’ petition conce rns the mosquito control policy that was in eff ect on J uly 23, 2005–the date of the Appellants’ letter to Dr. Ba iley

. The letter, as set out above, specific ally states that, “[w]e

. . . re q u est a decision reg arding the curre nt policies for mosquito

co n trol.” (Emphasis added). The letter g oes on to state t hat, “[ w]e are conce rned that the h ea l t h risks of spray

ing pesticides have not been weig hed and that the curre nt prog ram could have a strong er emphasis on preve ntative methods.” (Emphasis added)

. I n addition to aski n g for a decision on the curr ent mosquito con t ro l policy
, the Appellants asked “for the cre ation of written policies specific ally outlining the reque sted chang es to policies...befor e spray ing takes place in Davidson County in 2005 .” (Empha sis added).

On April 8, 2008, the B oard f ormally adopted a

new mosquito-control policy

. As a result, the 2005 policy , which is the policy the Appellants sought t o revise, be came ineffe ctive. In short, the Appellants’ letter to Dr. B ailey seeks c hang es to a mosquito control policy that is no longe r i n eff ect. Consequently
, any decision from this Court to chang e the 2005 policy would be insignifica nt beca use the 2005 policy has been repla ced with a new and completely differ ent policy

. Moreove r, beca use the new policy
, as set out above, eliminates mosquito spray ing unless there is a documented threat to the public, and beca use there is no documented threa t in evidenc e, there is no prese nt, live
controve rsy reg arding the mosquito control policy

. There fore
, we conclude that the issues raised by Appellants conce rning the now ineffe ctive 2005 policy are moot. Concerning the exceptions to the

m o o t ness doctrine, supra , we conclude that none are applicable to the case at bar. Al t h o u gh we

conce de that mosquito control, and particularl y the method and manner a municipality uses to achie ve that g oal, is a matter of public interest, with the passa g e of the 2008 policy , it is clea r t hat Davidson County has prioritized the g ener al public’s safe ty in its decision to spray only when there is a true thre at to public health.

-7-For the fo re go i n g rea sons, we aff irm the order of the trial court. Costs of this appea l are assessed to the Appellants, Rachel Sumner, Michele Fly nn, Eleanor Sny der, Br

uce Wallenstein, Br uce Wood, and their

respe ctive sure ties.

___________________________________

J . STEVEN STAFF ORD, J

.

-8-