IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 3, 2016 Session

WESTERN FARM PRODUCTS, LLC, INC. v. SUMNER COUNTY, TN,

ET AL.

Appeal from the Chancery Court for Sumner County

No. 2011CV421 Joe H. Thompson, Chancellor 

___________________________

 No. M2015-02003-COA-R3-CV – Filed June 19, 2017

_________________________________

A property owner who wished to construct and operate a quarry sought a declaratory 

judgment that a Sumner County Zoning Resolution, which was alleged to exclude 

quarrying and mining activities, is unconstitutional and in violation of the Tennessee 

zoning enabling statutes. A group of adjoining property owners were permitted to 

intervene in the proceeding, and the court granted summary judgment to the county and 

adjoining property owners. The property owner now appeals. We find that the evidence 

relied upon by the property owner does not establish that the ordinance at issue prohibits 

all quarrying activities and affirm the trial court’s judgment. 

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.

Thomas V. White and George A. Dean, Nashville, Tennessee, for the appellant, Western 

Farm Products LLC, Inc.

Leah May Dennen, Gallatin, Tennessee; and A. Scott Derrick, Nashville, Tennessee, for 

the appellee, Sumner County, Tennessee.

David M. Amonette, Gallatin, Tennessee, for the intervening appellees, Thomas Neal, Jr., 

Lester Lonzo Luce, Carol Dee Luce, John J. Simons, and Allyson Simons.

OPINION

This is the second appeal in this case. In the first appeal, styled Western Farm 

Products, LLC v. Sumner County, No. M2013-01578-COA-R3-CV, 2014 WL 1852973 

(Tenn. Ct. App. May 5, 2014), Western Farm Products, LLC (“Western”) appealed the 
2

dismissal of its petition for certiorari review of the Sumner County Board of Zoning 

Appeals’ denial of a conditional use permit to operate a quarry on its 350 acres of

property which is currently zoned RIA, general residential; we affirmed the trial court. 

On September 2, 2011, the same day it filed the petition for certiorari, Western filed a 

declaratory judgment action naming Sumner County (“the County”) as defendant; no 

action was taken on that case while the certiorari case was on appeal. The instant appeal 

is from the trial court’s grant of summary judgment against Western in the declaratory 

judgment action. 

Western sought a declaration that the Sumner County Zoning Resolution, which 

operates as the county’s zoning plan, did not specifically permit mining and quarrying in 

the county, and that the exclusion of these activities violated the Tennessee Constitution 

and zoning statutes at Tennessee Code Annotated section 13-7-101, et seq. Western 

requested that the court, inter alia, issue an injunction preventing the County from 

excluding mining and quarrying activity and order the County to issue Western a building 

permit or certificate of occupancy for the proposed quarry.1 Thomas Neal, Jr., Lester 

Lonzo Luce and wife, Carol Dee Luce, and John J. Simons and wife, Allyson Simons, 

owners of property adjacent to Western’s property (the “Intervenors”), were allowed to 

intervene in the case; they opposed Western’s proposed use of its property, contending 

that Western’s proposal “to operate a quarry with asphalt and concrete plants and rock 

crushing facilities . . . would dramatically impact the nature and value of [their] adjoining

property, as well as [their] peace and enjoyment of same.” 

In due course, the Intervenors moved for summary judgment, contending that the 

action taken by the Sumner County Board of Commissioners on May 19, 2014, to amend 

the Zoning Resolution to create a floating district entitled the “Mining and Quarrying 

Floating Zone,” which serves as a floating zone over areas which are zoned Industrial, 

permits the activities in which Western is engaged and, therefore, rendered Western’s 

action moot. The trial court held that the Zoning Resolution, as amended, permitted 

mining and quarrying and, consequently, granted summary judgment to the Intervenors.2 

Western appeals, raising the following issue: “Whether the Sumner County Zoning 

Regulations effectively excludes quarries from locating within the county?” 

 

1

 On Intervenors’ motion for judgment on the pleadings, the court struck the prayer for relief requesting 

that the court order the County to issue a building permit or certificate of occupancy. The ruling on that 

motion is not at issue in this appeal.

 

2

 Sumner County had filed a response in support of the summary judgment motion; after the motion was 

granted, an order was entered holding that “summary judgment applies equally to Sumner County . . . 

[and that] [Western] and the County agree that plaintiff’s claims . . . should be dismissed in their entirety 

and the Final Order Granting Judgment entered.” 
3

I. STANDARD OF REVIEW 

This case, filed on September 2, 2011, was resolved on motion for summary 

judgment. A party is entitled to summary judgment only if the “pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits...show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law.” Tenn. R. Civ. P. 56.04.3 We review the trial court’s ruling 

on a motion for summary judgment de novo with no presumption of correctness, as the 

resolution of the motion is a matter of law. Rye v. Women’s Care Ctr. of Memphis, 

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 

(Tenn. 1997); Abshure v. Methodist Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 

(Tenn. 2010)). We view the evidence in favor of the non-moving party by resolving all 

reasonable inferences in its favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); 

Godfrey v. Ruiz, 90 S.W.3d 692,695 (Tenn. 2002).

II. DISCUSSION

As an initial matter we address the Intervenors’ argument that the trial court could 

have granted them summary judgment on the issue of mootness. In presenting their 

motion for summary judgment, the Intervenors took the position that the Board of 

Commissioners’ passage of the amendment to the Zoning Resolution that created the 

floating zone rendered the case moot, arguing that:

[e]ven if this Court were to agree with Plaintiff that the Sumner County 

Zoning Ordinance is unconstitutional[, t]he only remedy this Court could 

grant would be to remand the case to the Sumner County legislative body in 

 

3

 Prior to July 1, 2011, courts which were considering motions for summary judgment were to apply the 

standard set forth in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008); for cases filed after 

July 1, 2011, courts were to apply Tennessee Code Annotated section 20-16-101. In Rye v. Women’s 

Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015), our Supreme Court overruled Hannan and 

adopted the standard applicable to summary judgment practice under Federal Rule 56; the court opined:

Our overruling of Hannan means that in Tennessee, as in the federal system, when the 

moving party does not bear the burden of proof at trial, the moving party may satisfy its 

burden of production either (1) by affirmatively negating an essential element of the 

nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at 

the summary judgment stage is insufficient to establish the nonmoving party's claim or 

defense. ... The nonmoving party must demonstrate the existence of specific facts in the 

record which could lead a rational trier of fact to find in favor of the nonmoving party.

Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264-65 (Tenn. 2015). In the 

Memorandum Opinion, the court correctly noted that section 20-16-101 governed the consideration of the 

motion. 
4

order to require it to amend its zoning resolution accordingly. Robertson 

County, Tennessee v. Browning-Ferris Industries of Tennessee, Inc., 799 

S.W.2d 662 at 667 (Tenn. Ct. App. 1990). Because this has already 

occurred, there is nothing further for this Honorable Court to do in this 

case. The Plaintiff’s case is moot. 

* * *

Likewise, a ruling by this Court upholding the constitutionality of the 

original Sumner County Zoning Ordinance would be meaningless and 

unnecessary since the Ordinance has already been amended. 

The trial court rejected Intervenors’ argument, holding that it was called upon “to decide 

whether Sumner County’s zoning scheme amounts to a de facto exclusionary zoning of 

quarries/mines” rather than the de jure exclusionary zoning ordinance at issue in 

Robertson County. Intervenors reiterate the argument on appeal.

We respectfully disagree that this matter was rendered moot by the county’s 

passage of the amendment to the Zoning Resolution. A moot case is one that has lost its 

justiciability because it no longer involves a present, ongoing controversy. McCanless v. 

Klein, 188 S.W.2d 745, 747 (Tenn. 1945); County of Shelby v. McWherter, 936 S.W.2d 

923, 931 (Tenn. Ct. App. 1996). “[A] case will be considered moot if it no longer serves 

as a means to provide some sort of judicial relief to the prevailing party.” Clay, 984 

S.W.2d at 616; see also Knott v. Stewart County, 207 S.W.2d 337, 338-39 (Tenn. 1948). 

An appellate court will dismiss an appeal “as moot when ‘by a court decision, acts of 

parties, or other causes occurring after the commencement of the action the case has lost 

its controversial character.’” West v. Vought Aircraft Industries, Inc., 256 S.W.3d 618, 

625 (Tenn. 2008) (citing McCanless, 188 S.W.2d at 747)). “Determining whether a case 

is moot is a question of law.” Alliance for Native American Indian Rights in Tennessee, 

Inc. v. Nicely, 182 S.W.3d 333, 339 (Tenn. Ct. App. 2005); Harriet Tubman Dev./CHA v. 

Locklin, 386 S.W.3d 239, 242 (Tenn. Ct. App. 2012).

In reliance on Robertson County v. Browning Ferris Industries, 799 S.W.2d 662 

(Tenn. Ct. App. 1990), Intervenors argue, as they did before the trial court, that “[o]nce 

Sumner County amended its zoning ordinance to add the new ‘Mining and Quarrying 

Floating Zone,’ the constitutionality of the old zoning ordinance became irrelevant and 

Western’s suit challenging the old zoning ordinance became moot.” We do not agree. 

As correctly noted by the trial court, Robertson County involved a de jure challenge to a 

zoning ordinance that explicitly prohibited private landfills; contrariwise, the resolution 

of this case calls for a factual determination of whether the ordinance that created the 

“floating zone” permitting quarrying activities amounts to a de facto exclusion of those 

activities because, as a practical matter, there is no place in the county in which the 

quarrying activities could take place. In light of such a de facto claim, the “logical place 

to begin is with the question of whether, as a matter of fact, there is no location in 

[Sumner] County where a new . . . [quarry] could be constructed and operated in
5

compliance with all applicable state and local regulations.” Consol. Waste Sys., LLC v. 

Metro Gov’t. of Nashville & Davidson County, No. M2002-02582-COA-R3-CV, 2005 

WL 1541860 (Tenn. Ct. App. June 30, 2005) at *36. This question belies the argument 

that the case became moot with the passage of the ordinance; consequently, we proceed 

to address the merits of the appeal. 

We start by recognizing, as did the trial court, that “there is a presumption in favor 

of the validity of ordinances and those questioning its validity have the burden of proof.” 

Town of Surgoinsville v. Sandidge, 866 S.W.2d 553, 555 (Tenn. Ct. App. 1993). 

Consistent with Sandidge, Western had the burden of proof at trial to show that the 

Zoning Resolution operates to exclude quarrying activities. For purposes of summary 

judgment, Intervenors had the initial burden of either affirmatively negating an essential 

element of Western’s claim or demonstrating that Western’s evidence was insufficient to 

establish the claim. 

 

In their motion for summary judgment, Intervenors filed a Tenn. R. Civ. P. 56.03 

statement of undisputed facts, which were responded to by Western; the fact most 

pertinent to the issue presented in this appeal states:

8. Subsequent to this Court striking the Plaintiff’s third prayer for relief, 

the legislative body of Sumner County (i.e., the Sumner County Board of 

County Commissioners) passed Resolution 1405-011 May 19, 2014, 

amending the Sumner County Zoning Resolution to add Article XVIII, 

creating a new zoning district entitled “Mining and Quarrying Floating 

Zone,” which functions as a floating zoning district throughout Sumner 

County.

Response: Admitted, except that the floating zone amendment requires that 

the floating zone for mining and quarrying be located in an area zoned 

Industrial. See §A(1).

The admission that the new zoning district established in the resolution functioned as a 

floating zone that permitted quarrying negated Western’s claim that quarrying was not 

permitted in the county and shifted the burden to Western to introduce evidence of 

specific facts to find in its favor. 

To satisfy its burden, Western relied upon the affidavit of John Gordon,4pertinent 

portions of which state:

 

4

 Sumner County argues that the affidavit should not have been admitted or considered by the trial court 

and should not be considered by this court because Mr. Gordon’s affidavit does not comply with the 

requirements of Tenn. R. Civ. P. 56.06 by failing to state that the affidavit was made on “personal 

knowledge” and by not referring to “specific property.” The record shows that the County moved to 

strike Mr. Gordon’s affidavit on the sole basis that he had not been identified as an expert; that motion 
6

* * * 

2. As part of my professional duties as a licensed engineer, I have practiced 

extensively in the area of engineering related to quarries inquiry activities. 

* * * 

4. Generally, when seeking a proposed location for a quarry, the minimum 

size of the property must be 100 acres or more.

5. The 100-acre rule is based on many separate factors for site selection. 

There must obviously be feasible limestone under the parcel. Just because 

the local government sets aside an area zoned appropriately for a quarry 

does not mean that there is limestone under it that can be removed feasibly. 

6. The location for this type of facility is determined by the unique natural 

location of the limestone deposit to be mined, and is not amenable to 

placement at alternative site locations. Other factors for facility selection 

include relative proximity to transportation, topography, and availability of 

the property.

7. If the local regulations have unusual setback requirements, the minimum 

size needs to be in excess of 100 acres.

8. Given the expense of property acquisition, engineering, and accessory 

activities, to plan a quarry of a smaller size is not reasonable from an 

engineering perspective. 

Western also relied on estimates contained in the county’s 2035 Comprehensive Plan to 

establish that there are a total of 241,746 acres of land within the county’s planning 

jurisdiction, with 71 of those acres zoned for industrial use. On the basis of that 

evidence, Western argues:

As a result, the adoption of the floating zone mining and quarrying 

amendment to the Sumner County Zoning Regulations certainly did not 

remedy the total exclusion of mining and quarrying activities from the 

County. In fact, it merely replaced one type of prohibition with another: 

first, the amount of land zoned for industrial use is an absurdly low amount 

and second, there is not enough industrial zoning in the entire county to 

establish a quarry; the effect of either of these facts renders the zoning 

regulations a total exclusion.

We are not convinced, on the record before us, that the floating zone operates as a de 

facto exclusion of zoning in Sumner County. 

 

was denied, with the court stating that it would “give the affidavit and testimony only such consideration 

as it is due,” and allowing the County additional time to identify its expert witnesses. Having failed to 

present the objection to the affidavit to the trial court, it cannot be raised in the first instance on appeal. 

See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). In any event, the County’s objections to the 

affidavit on appeal go only to the weight to be afforded the information and opinions expressed. 
7

The narrow question we resolve is not whether Western’s proposal to operate a 

quarry is feasible and should be approved but, rather, whether any quarrying activities, 

which are permitted under the amendment, are possible in Sumner County. The evidence 

relied upon by Western shows only that there are 241,746 acres of land within the 

County’s jurisdiction, with 71 of those acres currently zoned for industrial purposes. Mr. 

Gordon’s opinion, while informative, primarily addresses the practicality of Western’s 

proposal within the context of the 71 acres currently zoned industrial.5 The amendment 

to the zoning resolution specifically permits quarrying and mining activity; the evidence 

does not show that there is no land in the County where such activity can take place 

feasibly and in compliance with applicable regulations. See Consol. Waste Sys., LLC.,

2005 WL 1541860 at *40. The evidence does not establish that quarrying and mining 

activities are not possible.

III. CONCLUSION

 

For the foregoing reasons, the judgment of the trial court is affirmed. 

RICHARD H. DINKINS, JUDGE

 

5 His opinion does not address the possibility that land not currently zoned industrial can be rezoned.