IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 18, 2021 Session

JAMES P. LITTLE, M.D. ET AL. v. CITY OF CHATTANOOGA, 

TENNESSEE

Appeal from the Chancery Court for Hamilton County

No. 11-0407 Jeffrey M. Atherton, Chancellor

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No. E2020-01414-COA-R3-CV

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This is a mandamus action in which the plaintiffs seek to compel the City of Chattanooga

(“the City”), pursuant to Tennessee Code Annotated § 6-51-108(e), to complete the plans 

of services arising from a 1972 annexation and to publish annual reports of its progress 

pursuant to Tennessee Code Annotated § 6-51-108(c). Two areas of the 1972 annexation 

are at issue: (1) an area known as “Tiftonia” or “Area 4” and (2) an area known as 

“Wauhatchee–Williams Island” or “Area 12.” The plaintiffs also seek a declaration that all 

annexations by the City since 1981 were void due to the City’s violation of Tennessee Code

Annotated § 6-51-102(b)(5), which prohibits a municipality from annexing additional 

territory while in default on a prior plan of services. After three years of trial preparation,

but prior to trial, the court imposed monetary sanctions against the City under Tennessee 

Rule of Civil Procedure 37.03 in the amount of $263,273.08 for attorneys’ fees, costs, and 

expenses caused by the City’s failure to supplement discovery responses. Thereafter, the 

case was tried in three phases. Following the first phase of the trial in 2017, the court found 

the City complied with its obligations as to Area 4; however, it found the City “materially 

and substantially failed to comply” with its obligations to provide street paving, street 

construction, and sanitary sewers in Area 12. Following the second phase of the trial in 

2019, the court found the City’s failure to comply with its obligations as to Area 12 was 

not excused in that it was not caused by “unforeseen circumstances.” As a consequence, 

the court ordered the City to submit a proposed scope of services to be provided, which 

would, inter alia, be the subject of the Phase 3 trial. After the third and final phase of the 

trial in 2020, the court found the City’s proposed scope of services was insufficient and 

issued a writ of mandamus ordering the City to bring all streets up to current standards and 

install, inter alia, a gravity-fed sewer system for Area 12 within 48 months. The court also 

ordered the City to publish annual reports of its progress and enjoined the City from further 

annexations until the services were provided. Finally, the court found the plaintiffs were 

not entitled to additional relief for the City’s past violations of §§ 6-51-102(b)(5) and -

108(c). Both parties appealed. The plaintiffs contend, inter alia, that the trial court erred 

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by finding the City complied with the plan of services for Area 4 and by denying their 

request for additional relief under §§ 6-51-102(b)(5) and -108(c). The City contends that 

§ 6-51-102(b)(5) and § 6-51-108(c) and (e) do not apply to the annexations of Area 4 and 

Area 12 because the statutes were enacted after the annexation ordinances were passed. 

The City also contends that the plaintiffs lack standing, and that their claims are barred by 

the doctrine of laches and the applicable statute of limitations. In the alternative, the City 

asserts that the trial court erred by finding it failed to materially and substantially comply 

with the plan of services for Area 12. The City also appeals the trial court’s award of 

sanctions for noncompliance with discovery under Rule of Civil Procedure 37.03. 

Following a thorough review, we reverse and modify the trial court’s judgment regarding 

the standards that apply to the City’s provision of street paving and construction in Area 

12; vacate its judgment regarding the City’s provision of sanitary and storm sewers in 

Areas 4 and 12; and remand for further proceedings consistent with this opinion. We affirm 

the court’s judgment in all other respects.

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

in Part, Reversed in Part, Vacated in Part, and Remanded.

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.

MICHAEL SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Rebecca Mary Little, Chattanooga, Tennessee, for the appellants, Little Company of 

Tennessee, LLC, and James P. Little.

Phillip Alden Noblett, Joseph Allen Kelly, and Keith J. Reisman, Chattanooga, Tennessee, 

for the appellee, City of Chattanooga.

OPINION

FACTS AND PROCEDURAL BACKGROUND

In 1972, the City of Chattanooga passed ordinances to annex several adjacent 

territories into its corporate limits, including an area known as “Tiftonia” or “Area 4” and 

an area known as “Wauhatchee–Williams Island” or “Area 12.” Before the annexations, 

the City adopted plans of services for each territory that identified the municipal services 

the City would extend into each territory and projected a timeline for each service (“the 

Plans of Services”). The validity of the annexations was challenged and upheld in two quo 

warranto actions. See State ex rel. Hicks v. City of Chattanooga, 513 S.W.2d 780 (Tenn. 

1974); State ex rel. Hudson v. City of Chattanooga, 512 S.W.2d 555 (Tenn. 1974), 

superseded by statute on other grounds, Act of Mar. 28, 1974, 1974 Tenn. Public Acts 

1115, as recognized in City of Kingsport v. State ex rel. Crown Enterprises, Inc., 562 

S.W.2d 808 (Tenn. 1978).
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Nearly 40 years later, in May 2011, Dr. James Little and the Little Company of 

Tennessee, LLC1(collectively, “Plaintiffs”), commenced this action by filing a complaint 

against the City in the Hamilton County Chancery Court. Plaintiffs’ claims were based on 

three statutes: Tennessee Code Annotated §§ 6-51-108(c), -108(e), and -102(b)(5). Section 

6-51-108(c) requires municipalities to publish annual updates regarding the extension of 

services for each annexed territory and permits property owners to enforce the reporting 

requirement in a mandamus action. Section 6-51-108(e) permits property owners to enforce 

the plan of services in a mandamus action. Section 6-51-102(b)(5) prohibits municipalities 

from annexing any additional territory if they are “in default” on a prior plan of services.2

In the initial Complaint, filed in 2011, Plaintiffs contended that the City failed to 

complete the plan of services for Area 12 (“the Area 12 Plan of Services”) and never 

published any progress reports. More specifically, Plaintiffs alleged that the City failed to 

provide Area 12 with adequate streets, street lighting, storm sewers, and sanitary sewers. 

Plaintiffs sought writs of mandamus to compel the City to prepare the progress reports and 

complete the Area 12 Plan of Services. Plaintiffs also requested an injunction to prohibit 

the City from annexing any other territory until the services were provided. In its Answer, 

the City asserted the reporting requirement in § 108(c) was inapplicable to the Area 12

because § 108(c) was enacted two years after the annexation ordinances were passed. 

Regardless, the City asserted that the Area 12 Plan of Services was complete.

Over the next two years, the parties engaged in discovery, and Plaintiffs amended 

their Complaint several times. Then, in September 2013, both parties moved for summary 

judgment on all claims. The trial court denied those motions,3and the parties proceeded to

a trial in February 2014. On the second day of trial, however, the City announced that it 

had discovered a discrepancy between the map of Area 12 attached to the Area 12 Plan of 

Services and the descriptions of Area 12 attached to the Area 12 Plan of Services and 

annexation ordinance. The discovery revealed that a portion of Plaintiffs’ property was in 

 

1 The Little Company of Tennessee, LLC was added as a plaintiff in 2013 after Dr. Little 

quitclaimed his interest in several properties to himself and the Little Company as joint tenants in common. 

A third plaintiff, Lucy D. Fryar, was added in 2012; however, the court dismissed Ms. Fryar’s claims in 

2014 after she sold her property. Ms. Fryar is not a party to this appeal.

2 When Plaintiffs filed their Complaint in 2011, the reporting requirement was codified at 

Tennessee Code Annotated § 6-51-108(b) and the right to enforce a plan of services was codified at 

Tennessee Code Annotated § 6-51-108(d). An amendment in 2013 added a new subsection (b), and 

redesignated the existing subsection (b) and the remaining subsections accordingly. See Act of Apr. 19, 

2013, § 1, 2013 Tenn. Pub. Acts 1489, 1489. We will refer to the statutes throughout this opinion using 

their present designations.

3 The trial court granted summary judgment on Plaintiffs’ claim for unjust enrichment, which is 

not subject to this appeal.
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Area 4. The parties agreed to continue the trial to allow Plaintiffs to amend their Complaint 

and conduct discovery regarding the services provided to Area 4.

In their Fifth Amended Complaint, Plaintiffs alleged that the City failed to complete 

the Area 12 Plan of Services and the plan of services for Area 4 (“the Area 4 Plan of 

Services”) (collectively, “the Plans of Services”) and never published any progress reports 

for Area 12 or Area 4. As before, Plaintiffs alleged that the City failed to provide adequate 

streets, street lighting, storm sewers, and sanitary sewers, and sought writs of mandamus 

to compel the City to prepare the progress reports and complete the Plans of Services. 

Plaintiffs also sought an injunction against further annexations until the services were 

provided.

On February 26, 2014, Plaintiffs filed a Motion for Default Judgment and/or Other 

Appropriate Sanctions “pursuant to T.C.A. § 6-51-108 and Rules 34A.02, 37.04, and 37.02 

of the Tennessee Rules of Civil Procedure.” At issue was the discrepancy between the 

depiction of the boundary lines for Area 12 in the map attached to the Area 12 Plan of 

Services—Chattanooga City Resolution 9166, approved and adopted on January 25,

1972—and the depiction of the boundary lines for Area 12 in the map attached to the 

annexation ordinance—Chattanooga City Ordinance 6393, approved and adopted on third 

and final reading on February 2, 1972. Plaintiffs alleged that the City should have known

about and disclosed the discrepancy at an earlier date. After a hearing, the trial court found 

that the City failed to timely supplement its discovery responses and imposed, pursuant to 

Tennessee Rule of Civil Procedure 37.03, monetary sanctions of $263,273.08 for attorneys’ 

fees, costs, and expenses Plaintiffs had incurred.

In October 2015, both parties moved for summary judgment on Plaintiffs’ claims

related to Area 4. The City argued, inter alia, that Plaintiffs were not entitled to relief under 

§§ 6-51-102(b)(5), -108(c), and -108(e) because those provisions were not enacted until 

after the 1972 annexations were complete. The City also asserted that Plaintiffs’ claims 

were barred by the applicable statute of limitations. The trial court denied the motions.4

In February 2017, Plaintiffs filed a “renewed” Motion for Summary Judgment on 

the City’s failure to comply with the reporting requirement in § 108(c). Plaintiffs asked the 

court for a writ of mandamus compelling the City to retroactively issue reports for every 

year since the annexations. The City responded by filing a motion to reconsider its Motion 

for Summary Judgment on whether § 108(c) applied retroactively to the 1972 annexations. 

The trial court denied the City’s Motion to Reconsider and reserved its ruling on Plaintiffs’

motion.

 

4 The trial court also granted permission to file interlocutory appeals, but the applications to appeal 

were denied by this court in July 2016.
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While Plaintiffs’ renewed Motion for Summary Judgment was still pending, the 

parties proceeded to trial in July 2017. During trial, the court heard from 23 witnesses and 

received approximately 175 exhibits into evidence regarding whether the City “materially 

and substantially failed to comply” with the Plans of Services.

In its Order of December 11, 2018,5the court found the City complied with the Area 

4 Plan of Service but not the Area 12 Plan of Services. In particular, the trial court found 

the City failed to comply with its obligations to provide street services and sanitary sewers 

to Area 12. But the court found it could not issue a writ of mandamus until the City was 

given an opportunity to show cause for its noncompliance because § 6-51-108(e) provides 

that “[i]f the court finds that the municipality has materially and substantially failed to 

comply with its plan of services . . . , then the municipality shall be given the opportunity 

to show cause why the plan of services was not carried out.” In the same order, the court 

ruled on Plaintiffs’ renewed Motion for Summary Judgment related to the reporting 

requirement in § 108(c). The court found that § 108(c) allowed the court to require progress

reports going forward, but the court found that § 108(c) provided no remedy for past 

reporting violations.

The parties proceeded to the second phase of trial in September 2019 on the issue

of whether the City’s failure to comply was caused by “unforeseen circumstances.” In 

particular, the City contended that its failure to comply was caused by a loss of federal 

funding and the impossibility of regulatory approval for sewer systems in the undeveloped 

portions of Area 12. After hearing from four witnesses, receiving nine new exhibits, and 

considering the parties’ post-trial briefs, the trial court found that neither reason excused 

the City’s noncompliance. Thus, the court found Plaintiffs were entitled to a writ of 

mandamus compelling the completion of the Area 12 Plan of Services, which compelled 

the third and final phase of trial. Accordingly, the court ordered the City to submit, in 

advance of trial, a proposed scope of services to be provided and a timetable for 

compliance. The City complied with the order.

At issue in the third and final phase of the trial was the City’s proposed plan for the 

completion of streets and sanitary sewers in Area 12. Plaintiffs did not present an 

alternative proposal, but they objected to the City’s plan because it left out several portions 

of Area 12 and specified “grinder” rather than “gravity” sewer systems. Plaintiffs argued 

that the grinder systems were insufficient to provide for the future development of the area. 

Plaintiffs also argued that the City’s plan was inadequate because it failed to meet the City’s 

current road design and construction standards. Regarding § 102(b)(5), Plaintiffs argued 

that the City had violated the statute multiple times since 1972 by annexing additional 

territory while in default on the Area 12 Plan of Services. Plaintiffs asserted that they were 

 

5 The trial court’s order was not entered until December 2018 due to a delay in the preparation of 

transcripts and the submission of post-trial briefs.
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entitled to “additional relief” for the City’s actions, including an order voiding all 

annexations occurring after the City “defaulted” on the Area 12 Plan of Services.

The trial court accepted the City’s proposed 48-month timeline, but the court found 

that the scope of services outlined in the City’s plan was insufficient. The court ordered the 

City to install gravity sewer systems for all of Area 12 and bring all roadways up to current 

standards. The trial court also found that Plaintiffs were not entitled to any additional relief 

under § 102(b)(5).

This appeal followed.

ISSUES

Both parties have raised several issues on appeal. As an initial matter, however, we 

note that our consideration of these issues is substantially hindered by the parties’ failure 

to comply with the Tennessee Rules of Appellate Procedure and the Rules of the Court of 

Appeals of Tennessee in their briefs.

“Review generally will extend only to those issues presented for review.” Tenn. R. 

App. P. 13(b). Accordingly, appellate briefs must contain a “statement of the issues 

presented for review.” Tenn. R. App. P. 27(a)(4). Within the issue statement, “[a] separate 

issue should be presented for each error raised in the appellate court.” State v. Williams, 

914 S.W.2d 940, 948 (Tenn. Crim. App. 1995) (citing Leeson v. Chernau, 734 S.W.2d 634, 

637 (Tenn. Ct. App. 1987)). Subject to some exceptions, “issues are properly raised on 

appeal . . . when they have been raised and preserved at trial and . . . when they have been 

presented in the manner prescribed by Tenn. R. App. P. 27.” Hodge v. Craig, 382 S.W.3d 

325, 334 (Tenn. 2012) (footnote omitted).

Tennessee Rule of Appellate Procedure 27(a)(7) requires briefs to include an 

argument setting forth “the contentions of the appellant with respect to the issues 

presented, and the reasons therefor, including the reasons why the contentions require 

appellate relief, with citations to the authorities and appropriate references to the

record . . . relied on.” (Emphasis added). Likewise, Tennessee Court of Appeals Rule 6(a)

requires written argument for each issue on appeal with specific citations to the record:

(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 trial court which is relied upon to correct the alleged 

error, with citation to the record where the erroneous or corrective 

action is recorded.
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(2) A statement showing how such alleged error was seasonably called to 

the attention of the trial judge with citation to that part 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 statement of each determinative fact relied upon with citation to 

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

(Emphasis added). 

Under Tennessee Court of Appeals Rule 6(b), “[n]o complaint of or reliance upon 

action by the trial court will be considered on appeal unless the argument contains a 

specific reference to the page or pages of the record where such action is recorded,” and 

“[n]o 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.” 

Thus, a failure to comply with these rules may have significant consequences. “An issue 

may be deemed waived, even when it has been specifically raised as an issue, when the 

brief fails to include an argument satisfying the requirements of Tenn. R. App. P. 27(a)(7).”

Hodge, 382 S.W.3d at 335; see also Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000) 

(“Plaintiff’s failure to comply with the Rules of Appellate Procedure and the rules of this 

Court waives the issues for review.” (citations omitted)).

The rules governing appellate briefs are of particular importance when, as here, the 

record is voluminous. See Nat’l Advert., Inc. v. McCormick Ashland City & Nashville R.R., 

936 S.W.2d 256, 259 (Tenn. Ct. App. 1996) (“Though we ordinarily are not inclined to 

invoke Rule 6(b) when a party raises a legitimate issue, we must do so in this case because 

of the sheer size of the record.”). “[W]hen placed in the position of having to review 

volumes of extraneous, unnecessary, and irrelevant filings, our goal is hindered and the 

interests of judicial economy are stymied.” Mitchell v. Jackson Clinic, P.A., 420 S.W.3d 1, 

3 n.3 (Tenn. Ct. App. 2013). More important, “[i]t is not the role of the courts, trial or 

appellate, to research or construct a litigant’s case or arguments for him or her.” Sneed v. 

Bd. of Prof’l Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010). The appellate record 

in this case consists of 41 technical record volumes, 45 transcript volumes, and nearly 

200 exhibits.

Plaintiffs raise seven issues, and the City raises four “overarching issues” with 

20 “sub-parts.” “[T]he number of issues presented for review rests within the discretion of 

counsel,” and “[w]e will not dictate to counsel how he must represent his client or limit his 

strategy.” State v. Draper, 800 S.W.2d 489, 500 (Tenn. Crim. App. 1990). Still, “the brief 

counsel submits to this Court must comport with the Tennessee Rules of Appellate 

Procedure.” Id. Compliance with the rules “is no mere technicality.” Owen v. Long Tire, 
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LLC, No. W2011-01227-COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct. App. Dec. 22, 

2011). Here, the parties’ appellate briefs fail to comply in several regards with both the 

letter and the spirit of the Rules of Appellate Procedure and the rules of this court.

Plaintiffs’ statement of the issues includes seven issues:

1. Whether the chancery court erred in failing to issue a writ of mandamus 

to require reporting pursuant to Tenn. Code Ann. § 6-51-108(c) at the 

beginning of proceedings.

2. Whether the chancery court imposed an incorrect legal burden on 

Plaintiffs to prove material and substantial noncompliance.

3. Whether the chancery court abused its discretion when it found that the 

City did not materially and substantially fail to comply with the plan of 

services for Area 4.

4. Whether the chancery court abused its discretion when it denied 

Plaintiffs’ request to amend their complaint to invoke the Tennessee 

Declaratory Judgment Act.

5. Whether the chancery court erred by failing to provide any remedy or 

penalty for the City’s willful violations of Tenn. Code Ann. § 6-51-

102(b)(5).

6. Whether the court erred by omitting 1,300 deannexed acres in area 12 

from its writ of mandamus.

7. Whether the chancery court abused its discretion by failing to award 

additional relief under the extraordinary circumstances of this case.

However, throughout the argument section of their brief, Plaintiffs allege erroneous 

actions of the trial court without citation to the record where the alleged erroneous 

action is recorded. See Tenn. Ct. App. R. 6(a)(1). Plaintiffs also rely on numerous facts 

without citation to the record where evidence of each fact may be found. See Tenn. Ct. 

App. R. 6(a)(4). Significantly, Plaintiffs include no citation to the record in the argument 

for their second, fifth, sixth, and seventh issues. Plaintiffs provide only one citation to the 

record in the argument for their first and fourth issues. Moreover, many of Plaintiffs’ 

citations are missing pertinent information. In the argument for their third issue—“Whether 

the chancery court abused its discretion when it found that the City did not materially and 

substantially fail to comply with the plan of services for Area 4”—Plaintiffs refer to 

evidence allegedly overlooked by the trial court, but Plaintiffs’ citations consist of 

transcript page numbers without a volume number. See Tenn. Ct. App. R. 3(a) (“All 

references to the record shall be by volume and page number.”). This omission is 
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significant because the appellate record contains 45 volumes of non-consecutively 

paginated transcripts.

The City’s appellate brief suffers from its own issues. The City’s statement of issues 

raises 20 issues, which we recite verbatim:

I. Gateway Errors: The Trial Court Erred in Hearing this Matter on the 

Merits.

1. Whether there exists a private cause of action to enforce the provisions 

of Tenn. Code Ann. § 6-51-102(b)(5).

2. Whether the trial court had subject matter jurisdiction to hear this 

matter or any part thereof.

3. Whether the provisions of Tenn. Code Ann. § 6-51-102(b)(5) may be 

retroactively applied to an annexation that was enacted on February 

2, 1972.

4. Whether the provisions of Tenn. Code Ann. § 6-51-108(e) may be 

retroactively applied to an annexation that was enacted on February 

2, 1972.

5. Whether the Plaintiffs had standing to make the claims in this matter 

since they were not an aggrieved party at the time of annexation.

6. Whether the claims made by the Plaintiffs were barred by the 

applicable statute of limitations.

7. Whether the claims made by the Plaintiffs were barred by the doctrine 

of laches.

8. Whether the claims made by the Plaintiffs were barred by the doctrine 

of res judicata.

II. The Court Incorrectly Applied the Law to Whether the City Materially 

and Substantially Failed to Comply with its Plan of Services.

9. Whether the trial court erred when it held that the City materially and 

substantially failed to comply with its Plan of Services for Area 12.

10.Whether the trial court erred when it considered extrinsic evidence to 

interpret the unambiguous Area 12 Plan of Services.

11.Whether the trial court erred when it held that the City’s failure to 

materially and substantially comply with its Plan of Services for Area 
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12 was not due to natural disaster, act of war, act of terrorism, or 

reasonably unforeseen circumstances beyond the control of the 

municipality that materially and substantially impeded the ability of 

the City to carry out the plan of services.

III. The Court Ordered a Mandamus in Error.

12.Whether the trial court erred when it issued a writ of mandamus to 

compel the municipality to provide additional services to Area 12.

13.Whether the trial court erred when it issued a writ of mandamus 

establishing a timetable for the provision of the additional services in 

Area 12.

14.Whether the trial court erred when it enjoined the City from any 

further annexations until the services subject to the court’s order had 

been provided to the court’s satisfaction.

15.Whether the trial court erred when it held that the City may not annex 

any other territory because the City was in default on the Area 12 Plan 

of Services.

IV.The Court improperly awarded Rule 37 Attorney’s fees to Plaintiffs and 

no recovery for Attorney’s fees is authorized under TCA 6-51-102 or 6-

51-108 or otherwise in this litigation.

16.Whether the trial court erred when it sanctioned the City and required 

the City to pay Plaintiffs’ attorney fees and cost for discovery related 

to Area 4 after the City disclosed that Plaintiffs and the City had over 

a period of years failed to notice that the map on the Area 12 Plan of 

Service Resolution differed from the maps on the Area 12 and Area 4 

Annexation Ordinances even though the legal descriptions were 

correct.

17.Whether the awards of attorney fees and cost related to Area 4 

discovery sanctions were in the correct amounts.

18.The Trial Court Correctly ruled that in all other respects, Plaintiffs are 

not entitled to attorney’s fees under any theory.

V. Other Issues:

19.Whether the trial court erred when it failed to enter a stay of all its 

orders requiring capital costs for construction of sewers and roads in 

Area 12 while this case was pending on appeal.
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20.The Trial Court Correctly Ruled Plaintiff Could not Amend its 

Complaint after Eleven Years to add new causes of action.

Although the City’s brief includes a section for each of the “overarching issues,” it 

does not include a section for each of the “sub-issues.” Instead, in a footnote to each section

of the argument, the City invites the reader to go on something of a treasure hunt by listing 

what “issues are addressed in this section.” Given the multitude of issues raised, this 

strategy does not comport with the spirit of Rule of Appellate Procedure 27(a)(7). And like 

Plaintiffs’ brief, the City’s argument section suffers from incorrect, missing, and irrelevant 

citations. When arguing that the trial court incorrectly denied the City’s Motion for 

Summary Judgment and Motion for Reconsideration, the City provides a cite to the 

motions but not the orders denying those motions. See Tenn. Ct. App. R. 6(a)(1). In support 

of its argument that the trial court “incorrectly held that the City had not met the 

requirements of the Plan of Services for Area 12,” the only citations are to transcripts from 

a deposition that was not admitted into evidence.

“[T]he Rules of Appellate Procedure, are ‘laws’ of this state, in full force and effect, 

until such time as they are superseded by legislative enactment or inconsistent rules 

promulgated by this Court and adopted by the General Assembly.” Tennessee Dep’t of 

Hum. Servs. v. Vaughn, 595 S.W.2d 62, 63 (Tenn. 1980). We are mindful, however, that 

the Rules “should be interpreted and applied in a way that enables appeals to be considered 

on their merits.” Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). Accordingly, we

may “suspend or relax some of the rules for good cause.” Paehler v. Union Planters Nat. 

Bank, 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997); see Tenn. R. App. P. 2; Tenn. Ct. App.

R. 1(b).

Considering the foregoing, we restate and consolidate the issues to be addressed in 

this appeal as follows: 

I. Whether Plaintiffs had standing to seek a declaratory judgment that all 

post-1981 annexations by the City are void due to the City’s violation of 

Tennessee Code Annotated § 6-51-102(b)(5).

II. Whether the trial court erred in its application of Tennessee Code 

Annotated § 6-51-108(c).

(1) Whether the trial court erred by enforcing the reporting requirement 

in § 6-51-108(c) when the annexation of Areas 4 and 12 occurred in 

1972 and the reporting requirement was not enacted until 1974.

(2) Whether the trial court erred by declining to order the City to publish 

a report of its progress under § 6-51-108(c) before discovery began.
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III. Whether the trial court erred in its application of Tennessee Code 

Annotated § 6-51-108(e).

(1) Whether the trial court erred by retroactively applying the right of 

mandamus in § 6-51-108(e).

(2) Whether Plaintiffs have standing as “aggrieved” property owners to 

bring a claim under § 6-51-108(e).

(3) Whether the trial court erred by finding Plaintiffs’ claim under § 6-

51-108(e) was not barred by the statute of limitations in Tennessee

Code Annotated § 28-3-110(a)(3).

(4) Whether the trial court erred by finding Plaintiffs’ claim under § 6-

51-108(e) was not barred by the doctrine of laches.

(5) Whether the trial court applied the incorrect burden of proof under 

§ 6-51-108(e).

(6) Whether the trial court erred by finding the City “materially and 

substantially failed to comply” under § 6-51-108(e) with the Area 12 

Plan of Services but not the Area 4 Plan of Services.

(7) Whether the trial court erred when it found the City failed to show 

cause under § 6-51-108(e) for its failure to comply.

(8) Whether the trial court exceeded its authority when it issued a writ of 

mandamus under § 6-51-108(e) that specified where and what type of 

sewers and streets the City must construct.

IV. Award of Attorneys’ Fees

(1) Whether the trial court erred when it awarded sanctions under 

Tennessee Rule of Civil Procedure 37.03.

(2) Whether the trial court should have awarded attorneys’ fees to 

Plaintiffs as additional relief.

ANALYSIS

I. STANDING UNDER TENNESSEE CODE ANNOTATED § 6-51-102(B)(5)

The issue, as restated, is whether Plaintiffs had standing to seek a declaration that 

the City’s violation of Tennessee Code Annotated § 6-51-102(b)(5) entitled them to relief.
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In Count II of their Complaint, Plaintiffs alleged that the City violated § 6-51-

102(b)(5) by annexing additional territory while in default on the Plans of Services for Area 

4 and 12. Plaintiffs later moved to amend Count II to seek “additional relief” under the 

Declaratory Judgment Act.6 Plaintiffs requested a declaration that all annexations by the 

City after it defaulted on the Area 12 Plan of Services were void. Plaintiffs asserted that 

they were injured by the City’s violation of § 102(b)(5) because the other annexations 

redirected resources away from Area 12. In its Order of September 14, 2020, the court 

ruled that Plaintiffs were not entitled to relief for the City’s past violations of § 102(b)(5) 

because Plaintiffs elected their remedy by bringing a mandamus action under § 108(e). The 

court found that allowing Plaintiffs to seek an additional remedy would be inconsistent 

with the nature of a mandamus action, which is available only when “there is no ‘plain or 

adequate remedy.’”

We agree with the trial court’s conclusion that Plaintiffs were not entitled to 

additional relief under § 102(b)(5), but we do so on slightly different grounds than those 

relied upon by the trial court.

Tennessee Code Annotated § 6-51-102(b)(5) does not expressly create a private 

right of action. It may, however, provide the basis for a declaratory judgment action 

regarding the validity of an annexation ordinance passed while the municipality is in 

default on a prior plan of services. In State ex rel. Allen v. City of Newport, 422 S.W.3d 

567 (Tenn. Ct. App. 2013), we recognized that, “[r]ead in a vacuum, [§ 102(b)(5)] does not 

explain how anyone is supposed to establish that a city is actually ‘in default,’ who has the 

legal standing to complain initially that a city is ‘in default,’ or what criteria has to be 

utilized in order to determine whether a city may actually be adjudged to be ‘in default.’” 

Id. at 575. Nonetheless, we found that the plaintiff-landowners in Allen could seek a 

declaratory judgment on the validity of the ordinance that annexed their territory based on 

an allegation that the annexation exceeded the municipality’s authority under § 102(b)(5). 

Id. at 576. We reasoned that the plaintiffs “raised a colorable claim that the ordinance [was] 

void pursuant to the statute” because § 102(b)(5) required “compliance with the [c]ity’s 

earlier plans of services.” Id. at 576–77 (citations omitted).

Unlike Plaintiffs in this case, the plaintiffs in Allen owned property in the territory 

annexed by the ordinance they were seeking to void. See id. at 568. Here, Plaintiffs do not 

seek a declaratory judgment on the validity of the Area 4 and Area 12 annexations; instead, 

 

6 On appeal, Plaintiffs contend that the trial court erred “by not allowing Plaintiffs to amend their 

Complaint.” The City argues that the trial court “properly denied” the motion. Neither party cites to where 

the trial court’s denial can be found. Our review of the record does not reveal that the trial court ruled on 

the motion to amend. Regardless, the record shows that the parties submitted briefs and presented oral 

argument on whether Plaintiffs were entitled to “additional relief” under § 102(b)(5), and the trial court 

ruled on the merits of the issue in its Order of September 14, 2020. “When issues not raised by the pleadings 

are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been 

raised in the pleadings.” Tenn. R. Civ. P. 15.02.
- 14 -

they seek a declaratory judgment on the validity of all other annexations by the City since 

1981, when the City allegedly defaulted on the Plans of Services. Plaintiffs argue that the 

City’s violations of § 102(b)(5) “redirected City resources from the previously annexed 

areas to Plaintiffs’ detriment.” We find this alleged injury is insufficient to establish

standing for a declaratory judgment on the validity of the other annexations.

“Courts use the doctrine of standing to determine whether a litigant is entitled to 

pursue judicial relief as to a particular issue or cause of action.” City of Memphis v. Hargett, 

414 S.W.3d 88, 97 (Tenn. 2013). “Constitutional standing . . . is one of the 

‘irreducible . . . minimum’ requirements that a party must meet in order to present a 

justiciable controversy.” Id. at 98 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560 (1992)). Three elements are necessary to establish constitutional standing:

1) a distinct and palpable injury; that is, an injury that is not conjectural, 

hypothetical, or predicated upon an interest that a litigant shares in common 

with the general public; 2) a causal connection between the alleged injury 

and the challenged conduct; and 3) the injury must be capable of being 

redressed by a favorable decision of the court.

Fisher v. Hargett, 604 S.W.3d 381, 396 (Tenn. 2020). “While the causation element is not 

onerous, it does require a showing that the injury to a plaintiff is ‘fairly traceable’ to the 

conduct of the adverse party.” City of Memphis, 414 S.W.3d at 98 (quoting Am. Civil 

Liberties Union of Tennessee v. Darnell, 195 S.W.3d 612, 620 (Tenn. 2006)).

Here, Plaintiffs’ alleged injury—the deprivation of city funds—is not “fairly 

traceable” to the allegedly ultra vires annexations. It is speculative at best to conclude that,

but for the other annexations, the City would have provided the services that Plaintiffs 

allege they are entitled to. Tennessee Code Annotated § 6-51-102(b)(1) requires 

municipalities to adopt a plan of services before annexing territory, and Tennessee Code 

Annotated § 6-51-108(e) gives the owners of property in annexed territory a right of action 

to enforce the plan of services for that territory. But there is nothing in the annexation 

statutes that entitles Plaintiffs an interest in city funds beyond the interest they share in 

common with other citizens of Chattanooga. See Tenn. Code Ann. § 6-51-108(a) 

(“Residents of, and persons owning property in, annexed territory shall be entitled to rights 

and privileges of citizenship, in accordance with the annexing municipality’s charter, 

immediately upon annexation as though such annexed territory had always been a part of 

the annexing municipality.”). Thus, even if Plaintiffs could show that the City overextended itself by providing services for other annexed territories, the injury would not be 

unique to Plaintiffs. “Standing . . . may not be predicated upon an injury to an interest that 

the plaintiff shares in common with all other citizens.” Bowers v. Estate of Mounger, 

542 S.W.3d 470, 479 (Tenn. Ct. App. 2017) (citing Mayhew v. Wilder, 46 S.W.3d 760, 767 

(Tenn. Ct. App. 2001)). “Were such injuries sufficient to confer standing, the State would 

be required to defend against ‘a profusion of lawsuits’ from taxpayers, and a purpose of 
- 15 -

the standing doctrine would be frustrated.” Id. (quoting Parks v. Alexander, 608 S.W.2d 

881, 885 (Tenn. Ct. App. 1980)).

Moreover, a declaration that the other annexations are void for violation of 

§ 102(b)(5) would not redress Plaintiffs’ alleged injury. Section 102(b)(5) provides 

municipalities with a strong incentive to complete prior plans of services, but it does not 

require municipalities to actually complete the plans. The mechanism for enforcing a plan 

of services is contained in § 108(e).

Based on the foregoing, we find Plaintiffs lacked standing to bring a declaratory 

judgment action to declare the City’s other annexations void based on the City’s violation 

of Tennessee Code Annotated § 6-51-102(b)(5). Accordingly, we find the trial court did 

not err by ruling that Plaintiffs were not entitled to any additional relief under § 6-51-

102(b)(5).

II. APPLICATION OF TENNESSEE CODE ANNOTATED § 6-51-108(C)

THE REPORTING REQUIREMENT

Tennessee Code Annotated § 6-51-108(c) requires municipalities to prepare and 

publish annual reports of the progress made in the preceding year toward the extension of 

services, and it allows property owners to “file suit for mandamus to compel the governing 

body to comply” with this reporting requirement. The City argues that the reporting 

requirement in § 108(c) is inapplicable because it was not enacted until after the Area 4 

and 12 annexations were complete. Plaintiffs contend the trial court should have ordered 

the City to provide reports “at the beginning of proceedings.” We will address each 

argument in turn.

Application of § 6-51-108(c)

The Chattanooga Board of Commissioners passed the ordinances annexing Area 4 

and Area 12 in 1972. The annexations were not “operative,” however, until late 1974, after 

the Tennessee Supreme Court upheld the ordinances’ validity in State ex rel. Hicks v. City 

of Chattanooga, 513 S.W.2d 780 (Tenn. 1974). See Tenn. Code Ann. § 6-51-103(e) 

(stating that ordinances upheld on appeal in quo warranto actions do not become operative 

until after entry of judgment). Meanwhile, the Tennessee General Assembly passed chapter 

753 of the public acts of 1974 (“the 1974 Act”), which added the reporting requirement 

now codified as amended in Tennessee Code Annotated § 6-51-108(c). See Act of Mar. 28, 

1974, § 3, 1974 Tenn. Pub. Acts 1111, 1112–13. The 1974 Act provided in relevant part 

as follows:

Upon the expiration of a year from the date any annexed area for which a 

plan of service has been adopted becomes a part of the annexing 

municipality, and annually thereafter until services have been extended 

according to such plan, there shall be prepared and published in a newspaper 

A.
- 16 -

of general circulation in the municipality a report of the progress made in the 

preceding year toward extension of services according to such plan, and any 

changes proposed therein, and the governing body of the municipality shall 

publish notice of a public hearing on such progress reports and changes, and 

hold such hearing thereon. Any changes in the plan of service shall be 

incorporated in a resolution approved by the governing body of the 

municipality. Any owner of property in an annexed area to which such plan 

and progress report are applicable may file a suit for mandamus to compel 

the governing body to comply with the requirements of this paragraph.

Id. The 1974 Act became effective in April 1974, id. at 1115, three months before Hicks

was decided.

On the same day it decided Hicks in July 1974, the Court decided a companion quo 

warranto action, State ex rel. Hudson v. City of Chattanooga, 512 S.W.2d 555 (Tenn. 

1974). In Hudson, the plaintiffs attempted to rely on a section of the 1974 Act that provided 

“[t]he municipality shall have the burden of proving at an annexation ordinance is 

reasonable for the overall well-being of the communities involved” in quo warranto

actions. Id. at 559 (quoting § 4, 1974 Tenn. Pub. Acts at 1113). The Court found this 

amendment was inapplicable because the 1974 Act also provided, “Nothing in this Act 

shall affect annexation proceedings initiated prior to the effective date of this Act.” Id.

at 559 (quoting § 6, 1974 Tenn. Pub. Acts at 1114).

Relying on the decision in Hudson and the language in Section 6 of the 1974 Act, 

the City contends that the trial court erred by “retroactively” applying the reporting 

requirement to the annexation of Area 12. We respectfully disagree.

Section 6 of the 1974 Act stated that “[n]othing in this Act shall affect annexation 

proceedings initiated prior to the effective date of this Act.” 1974 Tenn. Pub. Acts at 1114. 

But the annual reporting requirement in Section 3 of the 1974 Act did not “affect” the 

“annexation proceedings” for Area 4 and Area 12.7 The reporting requirement in Section 3 

operated prospectively to enhance post-annexation accountability for municipalities. See 

Frederic S. Le Clercq, Tennessee Annexation Law: History, Analysis, and Proposed 

Amendments, 55 Tenn. L. Rev. 577, 597–98 (1988). The amendment was enacted in 

response to a Legislative Council Committee report that recommended changes to plans of 

services be approved by voters in the newly annexed area. See id. at 595–96 (quoting

Legislative Council Committee, Study on the Adjustment of Municipal Boundaries (1973)).

 

7 The 1974 Act specified that “[a]nnexation proceedings shall be considered as initiated upon 

passage on first reading of an ordinance of annexation.” § 5, 1974 Tenn. Pub. Acts at 1113. The record does 

not indicate when the first readings of the ordinances were passed, but the third and final readings were 

passed on February 2, 1972. Thus, the annexation proceedings were initiated prior to the 1974 Act’s 

effective date of April 5, 1974.
- 17 -

Article I, section 20 of the Tennessee Constitution provides that “no retrospective 

law, or law impairing the obligations of contracts, shall be made.” For the purpose of this 

section, “a retrospective statute is one which operates forward but looks backward in that 

it attaches new consequences or legal significance in the future to past acts or facts that 

existed before the statute came into effect.” Estate of Bell v. Shelby Cnty. Health Care 

Corp., 318 S.W.3d 823, 836 n.4 (Tenn. 2010). The reporting requirement in Section 3 of 

the 1974 Act did not attach “new consequences or legal significance” to past acts by the 

City because the annexation ordinances for Area 4 and Area 12 were still being challenged 

and had not become operative. See Tenn. Code Ann. § 6-51-103(e).

Furthermore, the Supreme Court’s holding in Hudson is not to the contrary. The 

amendment at issue in Hudson shifted the burden of proof in quo warranto actions to the 

municipality. See 512 S.W.2d at 559. “Because the burden of proof, if not a rule of 

substantive law in and of itself, always affects substantive rights, it makes sense that 

statutes altering the burden of proof should not be applied retroactively.” State v. Odom, 

137 S.W.3d 572, 609 (Tenn. 2004) (Barker, J., dissenting).

For these reasons, we find no error in the trial court’s determination that the City 

had to comply with Tennessee Code Annotated § 6-51-108(c).

Enforcement of § 6-51-108(c)

Plaintiffs contend that the court should have enforced § 6-51-108(c) “from the very 

outset, before discovery in this case began.” They insist that the court’s failure to require 

reports allowed the City to use its violation of the statute “as a defense vehicle to prolong 

and corrupt the discovery process,” which “created a massive and costly discovery burden 

for Plaintiffs.” Plaintiffs fail, however, to cite the record to show they ever requested an 

order for the City to publish a report of its progress before discovery began, and they fail 

to cite the record to show where the trial court denied such request, if made. See Tenn. R. 

App. P. 27(a)(7); Tenn. Ct. App. R. 6(a). Accordingly, we find Plaintiffs have waived this 

issue.

Plaintiffs also argue that the trial court erred by finding “that it could not compel 

reports retroactively and could only compel annual reports going forward” in its Order of 

October 11, 2018.

The trial court’s Order of October 11, 2018 was entered after the parties completed 

a two-week trial on whether the City complied with the Plans of Services. In addition to 

ruling on that issue, the court ruled on the renewed Motion for Summary Judgment that 

Plaintiffs filed in February 2017. In that motion, Plaintiffs requested summary judgment 

“relative to the City’s violation of T.C.A. § 6-51-108(c)” and requested “the City be 

compelled to comply with the requirements of T.C.A. § 6-51-108(c).” The trial court took 

the motion under advisement after a hearing on May 25, 2017.

B.
- 18 -

Significantly, on the same day that the trial court took their motion under 

advisement, Plaintiffs agreed to a trial date in July 2017. Shortly before trial was to begin, 

the court entered another order stating it was reserving its ruling on Plaintiffs’ renewed 

Motion for Summary Judgment. Despite the unresolved motion, Plaintiffs proceeded to 

and participated in the trial without objection.

In its Order of December 11, 2018, the court found that the City’s past violations of 

§ 108(c) were moot:

The Court can only compel annual reports going forward, and cannot punish 

the City for failing to provide such reports in the past. Requiring the City to 

submit the annual reports for earlier than the present year would have had no 

beneficial effect because the parties were already preparing to try the issues 

under subsection (e). . . . Claims relating [to] violations of Subsection (c) are, 

therefore, deemed moot, as it has no ongoing operative impact on the current 

litigation.

On appeal, Plaintiffs contend that “[b]ecause the parties were already preparing to 

try the issues under subsection (e), a report on the City’s progress to the present date would 

have had a profoundly beneficial effect on Plaintiffs’ ability to exercise their rights by 

reduc[ing] the burden on [Plaintiffs].” Significantly, however, Plaintiffs fail to identify any 

factual basis for this conclusory statement. Moreover, when the court entered its order in 

December 2018, the parties had completed a two-week trial on whether the City complied

with the Plans of Service. Thus, a favorable judgment in December 2018 would not have 

provided Plaintiffs with any meaningful relief.

For the foregoing reasons, we find no reversible error in this regard.

III. APPLICATION OF TENNESSEE CODE ANNOTATED § 6-51-108(E)

THE RIGHT OF MANDAMUS

Plaintiffs raise two issues regarding the trial court’s application of Tennessee Code 

Annotated § 6-51-108(e) that we will address in turn. First, Plaintiffs contend that the trial 

court erred by imposing an incorrect burden of proof. Second, they contend that the trial 

court erred by finding that the City complied with the Area 4 Plan of Services.

The City raises seven issues regarding § 108(e). First, the City contends that the trial 

court erred by retroactively applying § 108(e). Second, it contends that Plaintiffs lacked 

standing under § 108(e). Third, it contends that Plaintiffs’ § 108(e) claim was barred by 

the applicable statute of limitations. Fourth, it contends that Plaintiffs’ § 108(e) claim was 

barred by the doctrine of laches. Fifth, it contends that the trial court erred when it found 

the City failed to materially and substantially comply with the Area 12 Plan of Services. 

Sixth, it argues that the trial court erred by finding that the City’s failure to comply was not 
- 19 -

due to unforeseen circumstances. And seventh, the City argues that the scope of the writ of 

mandamus exceeded the court’s authority.

Retroactive Application of Tennessee Code Annotated § 6-51-108(e).

As a threshold matter, we consider the City’s contention that the trial court erred by 

retroactively applying the right of mandamus in § 6-51-108(e) to the Area 4 and Area 12 

annexations. The City argues that § 108(e) is part of a “new system of annexation by 

ordinance” that was not in effect when Area 4 and Area 12 were annexed in 1972. We 

respectfully disagree.

The authority to annex territory by ordinance was created in 1955 when the General 

Assembly passed chapter 113 of the public acts of 1955 (“the 1955 Act”). See Act of 

Mar. 1, 1955, § 2, 1955 Tenn. Pub. Acts 382, 383. Six years later, the General Assembly 

added the plan of services requirement with the enactment of chapter 320 of the public acts 

of 1961 (“the 1961 Act”). See Act of Mar. 8, 1961, § 1, 1961 Tenn. Pub. Acts 893, 893–

94.

The 1961 Act provided that, before annexing a territory, the municipality must 

“adopt a plan of service setting forth at a minimum the identification and projected timing 

of municipal services proposed to be extended into the territory proposed to be annexed.” 

Id. Accordingly, before annexing Area 4 and Area 12 in 1972, the City’s Board of 

Commissioners adopted a plan of services for each area.

Two years later, the General Assembly passed the 1974 Act, which added a nonexhaustive list of services that each plan of services must identify. See § 1, 1974 Tenn. Pub. 

Acts at 1112. As discussed, the 1974 Act also added the annual reporting requirement. See

id. § 3, 1974 Tenn. Pub. Acts at 1112–13 (codified as amended in Tenn. Code Ann. § 6-

51-108(c)).

The right of mandamus in § 108(e) was not added until 1998. See Act of May 1, 

1998, § 21, 1998 Tenn. Pub. Acts 1157, 1175. Nevertheless, in State ex rel. Cain v. City of 

Church Hill, No. E2007-00700-COA-R3-CV, 2008 WL 4415579 (Tenn. Ct. App. Sept. 30, 

2008), we held that the right of mandamus in § 108(e) is “clearly a remedial right” that 

could be applied retroactively. Id. at *6. The City does not contest our decision in Cain, 

which addressed the application of § 108(e) to a 1988 annexation. See id. at *1. Instead, 

the City argues the retroactive application of § 108(e) is limited to post-1974 annexations 

because the 1974 Act “created a completely new system for annexation by ordinance.” The 

City asserts that the 1974 Act “changed the methodology for annexation by ordinance” 

because it expanded the content requirements for plans of services and added the reporting 

requirement. We disagree.

The annexation statutes were amended numerous times before and after 1974. See, 

generally, Le Clercq, supra, at 589–609 (surveying the amendments passed between 1955 

A.
- 20 -

and 1988). Although the 1974 Act was a “major revision of the 1955 Act,” id. at 595, “the 

framework established [by the 1955 Act] remained largely intact” after 1974, id. at 583.

Moreover, the amendment to the plan of services requirement did not substantively change 

a municipality’s obligation. As originally enacted in the 1961 Act, the plan of services 

requirement provided as follows:

Provided, however, that before any territory . . . may be annexed under this 

section, the governing body of the municipality shall adopt a plan of service 

setting forth at a minimum the identification and projected timing of 

municipal services proposed to be extended into the territory proposed to be 

annexed.

Provided, further that before any such plan of service shall be adopted, it 

must have been submitted to the local planning commission, if there be such, 

for study and a written report, to be rendered within ninety (90) days after 

such submission, unless by resolution of the governing body a longer period 

is allowed.

§ 1, 1961 Tenn. Pub. Acts at 893–94.

Section 1 of the 1974 Act clarified, but did not change, the plan of services 

requirement:

SECTION 1. Tennessee Code Annotated, Section 6-309 is amended by 

adding, after the first sentence of the second paragraph, the following:

The plan of services to be identified, shall include but be not limited 

to police protection, fire protection, water service, electrical service, 

sanitary sewage system, solid waste disposal, road and street construction 

and repair, recreational facilities, and the zoning services which the 

municipality shall enact for the territory proposed to be annexed; 

provided such services which are being provided such plan may except 

such services which are being provided by another public agency or 

private company for the area to be annexed.

1974 Tenn. Pub. Acts at 1112. As already discussed, Section 3 of the 1974 Act added a 

prospective annual reporting requirement along with a right of mandamus to compel 

compliance. See id. at 1112–13.

We find nothing in the language of the 1974 Act to support the City’s conclusion

that the 1974 Act created a “completely new system” or “changed the methodology for 

annexation by ordinance.” Both before and after 1974, municipalities were required to 

“adopt a plan of service setting forth at a minimum the identification and projected timing 

of municipal services proposed to be extended into the territory proposed to be annexed.” 
- 21 -

§ 1, 1961 Tenn. Pub. Acts at 893–94. And there is nothing in the right of mandamus 

language of § 108(e) that relies on the language added by the 1974 Act. The right of 

mandamus in § 108(e) permits “[a]n aggrieved property owner in the annexed territory” to 

“bring an action in the appropriate court of equity jurisdiction to enforce the plan of 

services.” Tenn. Code Ann. § 6-51-108(e).

The City also points out that the 1974 Act expressly stated, “Nothing in this Act 

shall affect annexation proceedings initiated prior to the effective date of this Act.” § 6,

1974 Tenn. Pub. Acts at 1114. The City fails, however, to explain how this language 

precludes the application of a remedial amendment passed in 1998.

For these reasons, we affirm the trial court’s finding that the right of mandamus in 

Tennessee Code Annotated § 6-51-108(e) may be applied to the 1972 annexations at issue 

in this case.

Standing Under Tennessee Code Annotated § 6-51-108(e)

The City also contends the trial court erred by finding that Plaintiffs have standing 

under § 108(e). The City contends that the right of action “is limited to those property 

owners who owned property at the time of an annexation” and were “aggrieved” by the 

municipality’s failure to comply with the Plans of Services.

“When a statute creates a cause of action and designates who may bring an action,

the issue of standing is interwoven with that of subject matter jurisdiction and becomes a 

jurisdictional prerequisite.” Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004). The first 

sentence of Tennessee Code Annotated § 6-51-108(e) provides that “[a]n aggrieved 

property owner in the annexed territory may bring an action in the appropriate court of 

equity jurisdiction to enforce the plan of services at any time after one hundred eighty (180) 

days after an annexation takes effect and until the plan of services is fulfilled.” We find 

nothing in this language to indicate that the statute limits the right of mandamus to persons 

owning property at the time of annexation. We also find instructive the phrase “at any time 

after one hundred eighty (180) days,” which is expansive rather than limiting. 

Regarding whether Plaintiffs qualify as “aggrieved” property owners, the City relies 

on evidence that showed Plaintiffs “had many of the services which were included in the 

plans of services for Areas 4 and 12” and “were receiving the majority of the services 

contemplated.” The City, however, provides no citation to where these facts are located in 

the record. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a). Nevertheless, it is evident 

that Plaintiffs have not received all of the services identified in the Plans of Services; 

accordingly, Plaintiffs are aggrieved, and the extent to which they may be aggrieved is of 

no consequence. Accordingly, Plaintiffs have standing.

B.
- 22 -

Statute of Limitations

The City contends that the 10-year limitation period in Tennessee Code Annotated

§ 28-3-110(a)(3) bars Plaintiffs’ claim under § 6-51-108(e). We respectfully disagree.

The limitation period in § 28-3-110(a)(3) applies to “[a]ll other cases not expressly 

provided for.” Section 6-51-108(e) expressly provides that “[a]n aggrieved property owner 

in the annexed territory may bring an action in the appropriate court of equity jurisdiction 

to enforce the plan of services at any time after one hundred eighty (180) days after an 

annexation takes effect and until the plan of services is fulfilled.” (emphasis added). Thus, 

the plain language of the statute precludes application of the limitation period in § 28-3-

110(a)(3).8

Doctrine of Laches

Alternatively, the City contends that Plaintiffs’ § 108(e) claims should have been 

barred by the equitable doctrine of laches because they filed their Complaint over 12 years 

after they first bought property in the area. The trial court rejected this argument because, 

inter alia, Dr. Little purchased additional property in the affected area in 2011, the same 

year that Plaintiffs commenced this action.

The application of laches lies within the discretion of the trial court and “will not be 

reversed except on a showing of an abuse of discretion.” John P. Saad & Sons, Inc. v. 

Nashville Thermal Transfer Corp., 715 S.W.2d 41, 46 (Tenn. 1986). The doctrine of laches 

has been described as follows:

Under the defense of laches, “equity will not intervene on behalf of one who 

has delayed unreasonably in pursuing his rights.” Laches, if applicable, 

requires more than mere delay. It requires an unreasonable delay that 

prejudices the party seeking to employ laches as a defense, and it depends on 

the facts and circumstances of each individual case.

Long v. Bd. of Prof’l Resp. of Supreme Ct., 435 S.W.3d 174, 181–82 (Tenn. 2014) (quoting 

Dennis Joslin Co. v. Johnson, 138 S.W.3d 197, 200 (Tenn. Ct. App. 2003)).

We find no abuse of discretion in the trial court’s decision. As the court noted, 

Dr. Little purchased property in the affected area as late as 2011, the same year this suit 

was commenced. Plaintiffs’ lawsuit was delayed in part by their lobbying efforts to have 

the City voluntarily provide the services they now seek to compel. Further, the City

provides no factual basis on which to conclude it was prejudiced by the delay.

 

8 We note that the City has not raised any issue regarding a statute of repose.

C.

D.
- 23 -

Burden of Proof

Plaintiffs contend that the trial court “misinterpret[ed] the burden on aggrieved 

property owners” in § 108(e). Stated another way, they contend the court “erred as to what 

[§ 108(e)] requires an aggrieved property owner to prove.” More specifically, they argue 

that “the Court should not have forced the Plaintiffs to prove the City’s compliance or lack 

thereof as to the City’s provision of every service to every property in both annexed 

territories” and “[i]t should have been enough for the Plaintiffs to prove that their properties 

did not have access to the services.”9 Plaintiffs do not, however, cite the record to show 

where the trial court made these alleged errors. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. 

App. R. 6(a)(1).

Appellate courts are courts “of appeals and errors,” and are “limited in authority to 

the adjudication of issues that are presented and decided in the trial courts, and a record 

thereof preserved as prescribed in the statutes and Rules of this Court.” Dorrier v. Dark,

537 S.W.2d 888, 890 (Tenn. 1976)). But “this Court is not charged with the responsibility 

of scouring the appellate record for any reversible error the trial court may have 

committed.” Cartwright v. Jackson Capital Partners, Ltd. P’ship, 478 S.W.3d 596, 614

(Tenn. Ct. App. 2015) (quoting Owen, 2011 WL 6777014, at *4). “It is not the role of the 

courts, trial or appellate, to research or construct a litigant’s case or arguments for him or 

her, and where a party fails to develop an argument in support of his or her contention or 

merely constructs a skeletal argument, the issue is waived.” Sneed, 301 S.W.3d at 615.

Without citation to the record to show where the alleged erroneous actions of the 

trial court are recorded, see Tenn. Ct. App. R. 6(a)(1), where Plaintiffs’ challenge to the 

error is recorded, see id. 6(a)(2), where Plaintiffs’ prejudice is recorded, see id. 6(a)(3), and 

where evidence of each determinative fact may be found, see id. 6(a)(4) and (b), this court 

is left to speculate on exactly what relief Plaintiffs are seeking and how the authority cited 

by Plaintiffs is relevant. See also Tenn. R. App. P. 27(a)(8) (requiring “[a] short conclusion, 

stating the precise relief sought”). Thus, we find Plaintiffs have waived this multitudinous 

issue.

 

9 Plaintiffs also contend that “Phase 1 of discovery and trial as to the City’s compliance . . . could 

and should have been resolved on Plaintiffs’ first Motion for Summary Judgment based on the City’s own 

previous carefully documented admissions of default.” Plaintiffs describe several purported “admissions” 

by the City, but they do not cite the record to show where these alleged admissions were made. See Tenn. 

R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a)(4), (b). Plaintiffs conclude by asserting that the court’s decision 

“increased the costs of maintaining this suit.” Plaintiffs ask the court to “provide relief for the inappropriate 

burden imposed upon the Plaintiffs.”

E.
- 24 -

Material and Substantial Failure to Comply with Areas 4 and 12

Both parties challenge certain aspects of the trial court’s decisions concerning 

material and substantial compliance with the Plans of Services. The City contends the trial 

court erred when it found that the City materially and substantially failed to comply with 

its obligation under the Area 12 Plan of Services to provide street maintenance and sanitary 

sewers. For their part, Plaintiffs contend the trial court erred when it found that the City 

materially and substantially complied with its obligations under the Area 4 Plan of Services 

to provide street maintenance, storm sewers, and sanitary sewers.

10

Tennessee Code Annotated § 6-51-108(e) requires trial courts to determine whether 

a “municipality has materially and substantially failed to comply with its plan of services 

for the territory in question.” The Plans of Services identified eight “services” that would 

be provided to each area, only three of which are now at issue—street maintenance, storm 

sewers, and sanitary sewers. The Plans provided in relevant part:

Services shall be rendered to said area and the persons therein pursuant to the 

following projected timing:

. . .

(c) Street Paving, Street Cleaning and Street Construction during or before 

the third year following the operative date of the annexation.

. . .

(g) Storm Sewers shall be provided during or before the sixth year following 

the operative date of the annexation.

(h) Sanitary Sewers shall be completed during or before the seventh year 

following the operative date of the annexation.

The Plans of Services were adopted as resolutions by the Chattanooga Board of 

Commissioners and later incorporated into the 1972 annexation ordinances. Interpretation 

of municipal legislation is a question of law that we review de novo. See Amos v. Metro. 

Gov’t of Nashville and Davidson Cnty., 259 S.W.3d 705, 710 (Tenn. 2008). Our review of 

a trial court’s finding of fact is “de novo upon the record of the trial court, accompanied by 

 

10 Plaintiffs do not contest the court’s finding that the City materially and substantially complied 

with its obligation to provide street lighting to Area 4. Plaintiffs also do not contest the court’s finding that 

the City materially and substantially complied with its obligations to provide storm sewers and street 

lighting to Area 12. 

F
- 25 -

a presumption of the correctness of the finding, unless the preponderance of the evidence 

is otherwise.” Tenn. R. App. P. 13(d).

“[T]he same rules of construction that apply to statutes apply to municipal 

legislation.” Amos, 259 S.W.3d at 710. Our objective is to determine the purpose of an 

ordinance and permit its effect without restriction or expansion[.]” Id.

“[B]ecause . . . words are known by the company they keep,” we must read them “in the 

context in which they appear in the statute and in light of the statute’s general purpose.” 

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). When the language is clear, 

“we apply the plain meaning without complicating the task.” In re Est. of Tanner, 295 

S.W.3d 610, 614 (Tenn. 2009). 

Thus, when interpreting the plan of service for an annexed territory, “[w]e must 

assume that the plan’s drafters intended the plain meaning of their words.” Cain, 2008 WL 

4415579, at *7. Moreover, “words generally should be ‘interpreted as taking their ordinary, 

contemporary, common meaning . . . at the time . . . enacted.’” Wisconsin Cent. Ltd. v. 

United States, 138 S. Ct. 2067, 2074 (2018) (quoting Perrin v. United States, 444 U.S. 37, 

42 (1979)); cf. Planters Gin Co. v. Fed. Compress & Warehouse Co., Inc., 78 S.W.3d 885, 

890 (Tenn. 2002) (“The central tenet of contract construction is that the intent of the 

contracting parties at the time of executing the agreement should govern.”). It is only when 

the language is ambiguous “that we may reference the broader statutory scheme, the history 

of the legislation, or other sources.” In re Estate of Tanner, 295 S.W.3d at 614.

Based on the above principles, we will address the parties’ arguments regarding 

compliance with each requirement in turn. For each requirement, we will review the trial 

court’s interpretation of what the Plans required as well as its findings of fact regarding 

what the City provided.

1. Street Paving, Street Cleaning, and Street Construction in Area 12

The trial court found that the City failed to materially and substantially comply with 

part (c) of the Area 12 Plan of Service because the City “promised to bring the Area 12 

streets to a certain standard.” The City contends this was error because the trial court 

erroneously relied on evidence of modern street standards.

The Plans of Services were adopted as resolutions by the Chattanooga Board of 

Commissioners and later incorporated into the 1972 annexation ordinances. Ordinances 

should be interpreted using “[t]he same rules of construction used to interpret statutes.”

Metro. Elec. Power Bd. v. Metro. Gov’t of Nashville & Davidson Cty., 309 S.W.3d 474, 

477 (Tenn. Ct. App. 2008) (citation omitted). “Our primary objective is to carry out 

legislative intent without broadening or restricting the statute beyond its intended scope.” 

In re Est. of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). “[B]ecause words are known by 

the company they keep, we construe them in the context in which they appear and in light 
- 26 -

of the general purpose of the statute.” State v. Jones, 589 S.W.3d 747, 756 (Tenn. 2019) 

(quoting Wallace v. Metro. Gov’t of Nashville, 546 S.W.3d 47, 52–53 (Tenn. 2018)). 

When the language is clear, “we apply the plain meaning without complicating the 

task.” In re Est. of Tanner, 295 S.W.3d at 614. Thus, when interpreting a plan of services, 

“[w]e must assume that the plan’s drafters intended the plain meaning of their words.” 

Cain, 2008 WL 4415579, at *6. Moreover, “words generally should be ‘interpreted as 

taking their ordinary, contemporary, common meaning . . . at the time . . . enacted.’” 

Wisconsin Cent. Ltd., 138 S. Ct. at 2074 (citing Perrin, 444 U.S. at 42); cf. Planters Gin, 

78 S.W.3d at 890 (“The central tenet of contract construction is that the intent of the 

contracting parties at the time of executing the agreement should govern.”). It is only when 

the language is ambiguous “that we may reference the broader statutory scheme, the history 

of the legislation, or other sources.” In re Est. of Tanner, 295 S.W.3d at 614.

A plan of services must identify the “services to be delivered.” Tenn. Code Ann. § 

6-51-102(b)(1). Here, the Plans of Services enumerated eight “services,” including “Street 

Paving, Street Cleaning and Street Construction.” The language in the Plan of Services 

begins by stating that the identified “services” would be provided, and then it simply states, 

“Street Paving, Street Cleaning and Street Construction during or before the third year 

following the operative date of the annexation.” Significantly, the Plan does not prescribe 

any specific standard. Thus, and contrary to the trial court’s conclusion, the Plan of 

Services did not obligate the City “to bring the Area 12 streets to a certain standard.” 

Accordingly, we respectfully disagree with the trial court’s interpretation of part (c) in the 

Area 12 Plan of Services. Reading the language of the Plan of Services in context and in 

light of the general purpose of the statute, we find the City was obligated to provide “Street 

Paving, Street Cleaning and Street Construction [Services] during or before the third year 

following the operative date of the annexation.” 

Although we respectfully disagree with the trial court’s conclusion that the Area 12 

Plan of Services required the City to bring the Area 12 streets to a certain standard by 

upgrading the Area 12 streets, the evidence does not preponderate against the trial court’s 

findings of fact, which show that the City has provided “Street Paving” to Area 12.11 In 

this regard we find it significant that Tennessee Code Annotated § 6-51-102(b)(1) requires 

a plan of services to identify the “services to be delivered.” Here, the Plans of Services 

enumerated eight “services.” The word “service” is defined as “[l]abor performed in the 

interest or under the direction of others” or “the performance of some useful act or series 

of acts for the benefit of another.” Service, Black’s Law Dictionary (11th ed. 2019). “In 

this sense, service denotes an intangible commodity in the form of human effort, such as 

labor, skill, or advice.” Id.

 

11 The parties stipulated before trial that the City provided street cleaning services to Area 12.
- 27 -

Specifically, the trial court found that “[t]he City presented evidence at trial showing 

that the roadways in Area 12 have been paved and repaved as part of several different 

projects in the years since annexation.” The court also noted that “several large City-wide 

projects have included Area 12.” Plaintiffs do not dispute these findings, which are 

supported by the record. According to City Engineer William Payne and several trial 

exhibits, the City responded to service requests and issued work orders for numerous 

improvements, including “paving and resurfacing, roadway distresses, roadway and 

driveway requests, sidewalks, . . . . roadway repair and construction, guardrail repairs, 

sidewalk repairs and construction, and curb repair and construction.”

For the foregoing reasons, we affirm the trial court’s determination that the City 

materially and substantially complied with part (c) of the Area 12 Plan of Service as it 

relates to “Street Paving” in Area 12. However, the issue remains concerning whether the 

City materially and substantially complied with its responsibilities as they pertain to “Street 

Construction” in Area 12. Accordingly, we remand with instructions for the court to 

determine, based on the applicable standards in effect “during or before the third year 

following the operative date of the annexation,” whether the City materially and 

substantially complied with part (c) of the Area 12 Plan of Service as it pertains to “Street 

Construction.”

2. Street Paving, Street Cleaning and Street Construction in Area 4

As for Area 4, the trial court found that the City materially and substantially 

complied with its obligation to provide “Street Paving, Street Cleaning and Street 

Construction” to that Area.

12 The court found that “a significant amount of work has been 

done since shortly after annexation on the roads in the Area, as they have been paved and 

repaved multiple times.” Plaintiffs contend the court erred because “[t]he City has adopted 

road design standards” that “require 26-foot pavement width for local roads.” We find 

Plaintiffs’ argument unpersuasive.

As we determined above, the City’s obligations must be examined according to the 

applicable standards in effect and/or adopted by the City or otherwise imposed on the City 

during the relevant periods in which the services were to have been completed. 

Furthermore, the Plans of Services, as written in 1972, provide no basis for imposing on 

the City a duty to comply with current standards, meaning those in effect in 2021, nor do 

they “require 26-foot pavement width for local roads,” as Plaintiffs contend. We reach this 

conclusion because, as we noted above, the words used in the 1972 Plan of Services should 

be ‘interpreted as taking their ordinary, contemporary, common meaning . . . at the 

time . . . enacted.’” Wisconsin Cent. Ltd., 138 S. Ct. at 2074 (citing Perrin, 444 U.S. at 42); 

cf. Planters Gin, 78 S.W.3d at 890.

 

12 The parties stipulated before trial that the City provided street cleaning services to Area 4.
- 28 -

The court found that “a significant amount of work has been done since shortly after 

annexation on the roads in the Area, as they have been paved and repaved multiple times.” 

Accordingly, we affirm the trial court’s decision on this issue concerning “Street Paving.”

However, an issue remains concerning whether the City materially and substantially 

complied with its obligation to provide “Street Construction” services in Area 4. 

Accordingly, we remand with instructions for the court to determine, based on the 

applicable standards in effect “during or before the third year following the operative date 

of the annexation,” whether the City materially and substantially complied with part (c) of 

the Area 4 Plan of Service as it pertains to “Street Construction.”

3. Sanitary Sewers in Area 12 and Area 4

With regard to part (h) of the Area 12 Plan of Services, the trial court found that the 

City failed to materially and substantially comply because the City “failed to provide 

sanitary sewer service to all of Area 12.” Conversely, the court found that the City

materially and substantially complied with its obligation to provide sanitary sewers in Area 

4, despite acknowledging that sanitary sewers were not available to “all of Area 4.”

The City contends the court’s finding regarding Area 12 was in error because the 

Area 12 Plan of Services did not require the City to build a sanitary sewer system for all, 

meaning 100% of Area 12. For their part, Plaintiffs contend the court’s finding regarding 

Area 4 was in error because the evidence shows that “a large portion of Area 4” did not 

have access to sanitary sewer lines as of 2018.

The Plans of Services state that “Sanitary Sewers shall be completed during or 

before the seventh year following the operative date of the annexation.” Thus, as an initial 

matter, we note that the language of part (h) differs from that in part (c) because the 

language in part (h) contemplates the completion of “Sanitary Sewers.” We also note that

part (h) contemplated more than the provision of an intangible commodity, i.e., it evinces 

an intent to not only service existing infrastructure but also to complete infrastructure.

That said, we agree with the City that the Plans did not require the installation—or 

completion—of sanitary sewers for all of Area 4 and Area 12 as those areas existed in 

2018, as Plaintiffs contend. The words used in Plans should be “interpreted as taking their 

ordinary, contemporary, common meaning . . . at the time . . . enacted.” Wisconsin Cent. 

Ltd., 138 S. Ct. at 2074 (quoting Perrin, 444 U.S. at 42). The 1972 Plans required the 

completion of the “Sanitary Sewers” for Area 4 and Area 12 “and the persons 

therein . . . during or before the seventh year following the operative date of the 

annexation.” Thus, the City was obligated to complete sanitary sewers for Areas 4 and 12 

and the persons therein as of 1972, as well as persons reasonably contemplated to be in the 

Areas during or before the seventh year following the operative date of the annexation.

The trial court did not make a finding on whether sanitary sewers were constructed 

for the Areas “and the persons therein . . . during or before the seventh year following the 
- 29 -

operative date of the annexation.” When a trial court fails to make a necessary finding, we 

may remand or “‘soldier on’ when the case involves only a clear legal issue, or when the 

court’s decision is ‘readily ascertainable.’” Manning v. Manning, 474 S.W.3d 252, 260 

(Tenn. Ct. App. 2015) (citations omitted). Here, we find it appropriate to remand this issue

for the trial court to make findings and conclusions of law concerning the scope of the 

City’s obligation under the Plans of Services, determine whether sanitary sewers were 

constructed for the persons in or contemplated to be in Areas 12 and 4 “during or before 

the seventh year following the operative date of the annexation,” and enter judgment 

accordingly. See id.

4. Storm Sewers in Area 4

The trial court found that the City complied with its obligation to provide “Storm 

Sewers” under part (g) of the Area 4 Plan of Services. Plaintiffs contend this finding was 

in error because the City installed only a portion of the storm sewer piping called for in a 

1971 pre-annexation study commissioned by the City (“the Fringe Area Studies”).

13 They 

further contend that the City could comply with its obligation under part (g) only by 

installing a “closed-pipe” drainage system throughout the Area that met the specifications 

called for in the Fringe Studies.

Part (g) of the Plans of Services states that “Storm Sewers shall be provided during 

or before the sixth year following the operative date of the annexation.” Thus, like the 

language in part (h), the language in part (g) evinces an intent to not only service existing 

infrastructure but also to provide infrastructure. Accordingly, we interpret the Area 4 Plan 

of Services as requiring the City to provide storm sewers for Area 4 and the persons therein 

as of 1972, as well as those reasonably contemplated to be in the Area during or before the 

sixth year following the operative date of the annexation. There is, however, a dispute and 

conflicting evidence regarding whether the term “Storm Sewers” meant a closed-pipe 

system, as Plaintiffs contend, or, as the City contends, a more diverse drainage system that 

included water conveyances such as open ditches and “green infrastructure.”

The City argues that the “Fringe Area Studies” should not be considered when 

construing the Plans of Services because the Studies were not adopted with the Plans of 

 

13 In 1967, the City commissioned the consulting engineering firm of Hensley-Schmidt, Inc., to

prepare a study of the City’s fringe areas for purposes of evaluating a long-range annexation program. In 

pertinent part, the Fringe Area Studies, also referred to as the “Hensley-Schmidt Feasibility Studies,” 

assessed the costs and benefits of annexing several “fringe areas” around Chattanooga, including Areas 4 

and 12. The firm published its first “Fringe Area Study for the City of Chattanooga, Tennessee” on August 

1, 1967, for fringe areas designated Area 1 through Area 11. Two additional studies were later

commissioned and published, the last on November 5, 1971. Following the completion of the studies, the 

City approved the Plans of Services—Resolutions 9166 and 9168—for Areas 12 and 4. On February 2, 

1972, the Commissioners of the City of Chattanooga passed Ordinances 6393 and 6397, which provided 

for the annexation of Areas 12 and 4.
- 30 -

Services. However, when legislative language is ambiguous, courts “may reference the 

broader statutory scheme, the history of the legislation, or other sources.” In re Est. of 

Tanner, 295 S.W.3d at 614. The Fringe Area Study was not adopted, referenced, or 

otherwise incorporated into the Plans of Services, but the Fringe Area Studies were 

prepared for and considered by the City when developing the Plans of Services. Thus, it is 

appropriate to consider the “Fringe Area Studies” when considering and interpreting the 

ambiguities in the Plan.

In that the Area 4 Plan of Services obligated the City to “provide” closed-pipe storm 

sewers, Plaintiffs contend that the evidence preponderates against the trial court’s finding 

that the City complied with its obligation under part (g) of the Area 4 Plan of Services. 

Again, Plaintiffs point to the Fringe Area Studies, which called for a certain amount of 

piping, and evidence that showed that the City installed only a small percentage of that 

piping.

The trial court found that the Fringe Area Studies were not persuasive on this point 

because the Studies also stated that installation of storm sewers would be based on the 

Area’s need. The court also found other evidence presented at trial showed Area 4 did not 

need additional, artificial storm sewers:

The Court is . . . not persuaded by Plaintiffs’ arguments regarding the 

amount of materials contemplated by the Fringe Studies with regard 

to . . . storm sewers. The Court cannot find that failure to comport with the 

exact specifications of the Fringe Studies equates to material and substantial 

failure to comply, especially when the Fringe Studies themselves continually 

use language that describes providing services consistent with City standards 

that are naturally subject to change.

Additionally, the Court finds the City again presented ample evidence with 

regard to storm sewers and the changing methods by which storm water is 

controlled, namely the shift to “green infrastructure” described by Mr. Payne. 

Again, the amount of materials, specified number of feet of storm sewer 

lines, and other numerical estimates cannot be solely dispositive of whether 

the City has failed to comply. The actual extent to which services have been 

provided must be considered. The Court cannot find the City should be 

responsible for providing or installing artificial lines when witnesses testified 

for both parties that the natural flow of water in the Area directed storm water 

to the Tennessee River. While periodic flooding in the Area may be an 

inconvenience, the Court does not find the City has materially and 

substantially failed to comply with the Plan of Services by failing to prevent 

such flooding, and alternate routes are available.

In its analysis of part (g) in the Area 12 Plan of Services, the court found the Fringe 

Area Studies were unpersuasive based, in part, on the testimony of City Engineer, William 
- 31 -

Payne, who described the existing storm drainage systems in place and testified that storm 

drainage is currently available on Plaintiffs’ properties. With respect to the existing 

drainage systems, Mr. Payne pointed out that the Fringe Studies did not describe a specific 

location for the installation of storm sewers. Mr. Payne additionally stated that he believed 

the Fringe Studies could not have meant that both sides of the streets would require storm 

sewer pipe since they called for approximately 10 miles of pipe along nine miles of 

streets.14 Mr. Payne further stated that part (g) of the Plans of Services did not direct the 

City to install storm sewers on every piece of property in the Area.

Considering that the Fringe Area Studies state, “[t]he construction of storm drainage 

outfall facilities and the installation of storm drainage within the city streets will be 

accomplished as the need thereof is determined under the current policies of the city,” the 

trial court also found it relevant that Mr. Payne referenced several documents in his 

testimony relating to work done on the storm systems in Areas 12 and 4. The court noted 

Mr. Payne’s testimony that since the record system was implemented in 2003, 884 drainage 

service requests were received by the City for Areas 12 and 4. Mr. Payne explained that 

these requests would have prompted an investigation by engineers. The court also noted 

that Mr. Payne considered this in his conclusion that the City had materially and 

substantially complied with the Plans of Services.

As the trial court noted in its December 11, 2018 Order following phase 1of the trial, 

the City’s “[f]ailure to adhere to the exact recommendations of the Fringe Studies does not 

necessarily equate to material and substantial failure to comply.” The court further stated: 

The Court heard a considerable amount of testimony describing how the City 

uses the natural flow of the land as a drainage system quite commonly when 

it is available as opposed to installing artificial storm sewer 

systems. . . . However, it also appears that additional storm sewer systems 

have been installed where needed in accordance with City standards, as the 

Fringe Studies envisioned. Thus, the Court cannot hold that the City has 

failed to provide these services.

We agree with the trial court’s analysis and conclusion. Tennessee Code Annotated 

§ 6-8-108(e) does not require strict compliance with a plan of services; substantial and 

material compliance will suffice. The evidence showed the City met this standard. 

Accordingly, we affirm the trial court on this issue.

 

14 If the Plan required “closed-pipe” drainage on both sides of the streets referenced, which were 

nine miles, then eighteen miles would have been needed, not ten.
- 32 -

Justifiable Excuse for Failure to Comply

The City contends the trial court erred by finding its failure to provide a sanitary 

sewer system to Areas 4 and 12 was not “excused” by unforeseen circumstances. 

With regard to the questions concerning whether the City “materially and 

substantially failed to comply” with the Plans of Services to provide a sanitary sewer 

system and “Street Construction” services to Areas 4 and 12, we have remanded the issues

for further consideration consistent with this opinion. Accordingly, this issue is 

pretermitted until the trial court renders its judgment. If the trial court determines on 

remand that the City materially and substantially failed to comply with its obligations to 

provide a sanitary sewer system and street construction services to Areas 4 and 12, the City 

“shall be given the opportunity to show cause why the plan of services was not carried 

out.” See Tenn. Code Ann. § 6-51-108(e). However, the issue shall be moot if the trial court 

determines that the City materially and substantially complied with its obligations to 

provide a sanitary sewer system and street construction services to Areas 4 and 12.

Scope of Mandamus

The City further contends the trial court exceeded the scope of its authority under 

Tenn. Code Ann. § 6-51-108(e) by issuing a mandamus that “details specific instructions 

on where and what types of sewers . . . to install.”15 Because additional findings are 

necessary to determine whether the City “materially and substantially failed to comply” 

with the Plans of Services regarding sanitary sewer system and street construction services 

to Areas 4 and 12, we must also vacate the trial court’s writ of mandamus.

In the interest of judicial economy, we note that the scope of any mandamus must 

be constrained to the scope of the Plans of Services. See Tenn. Code Ann. § 6-51-108(e) 

(“[T]he court shall issue a writ of mandamus to compel the municipality to provide the 

services contained in the plan[.]” (emphasis added)). As noted earlier, the Plans of 

Services must be interpreted first according to their plain language in the context in which 

 

15 The City also appealed the scope of the trial court’s order related to street services for Area 12. 

Because we have reversed the finding that the City failed to provide street paving and construction under

the Area 12 Plan of Services, we do not address that portion of the court’s order. The City also contends 

that the trial court erred by enjoining the City from any further annexations until the services had been 

provided and by denying in part the City’s motion to stay enforcement of the mandamus pending appeal. 

The City, however, fails to cite legal authority or otherwise develop any argument in support of these issues. 

Accordingly, we find the City has waived these issues. See Sneed, 301 S.W.3d at 615.

Plaintiffs’ contend the trial court erred by omitting from the writ of mandamus 1,300 acres that 

were allegedly de-annexed from in Area 12 in 2003. Once again, Plaintiffs fail to include any citations to 

the record. Accordingly, we find Plaintiffs have waived this issue. See Tenn. R. App. P. 27(a)(7); Bean, 

40 S.W.3d at 55 (“Plaintiff’s failure to comply with the Rules of Appellate Procedure and the rules of this 

Court waives the issues for review.”).

G.

H.
- 33 -

they were written. See Cain, 2008 WL 4415579, at *7 (“We must assume that the plan’s 

drafters intended the plain meaning of their words.”). Moreover, “[w]hen the details of 

performance require a public official to exercise judgment he may be compelled by 

mandamus to perform the duty but his judgment concerning the details of performance is 

left unfettered.” Bradley v. State ex rel. Haggard, 438 S.W.2d 738, 740 (Tenn. 1969). In 

other words, “[w]hile mandamus can be used to require public officials to carry out their 

duty, it cannot be used to affect their judgment or discretion concerning how they perform 

their duty.” State ex rel. Hayes v. Civ. Serv. Comm’n of Metro. Gov’t of Nashville & 

Davidson Cty., No. 01-A-01-9002-CH00061, 1990 WL 165073, at *3 (Tenn. Ct. App. 

Oct. 31, 1990) (citations omitted).

Although the Plans required the completion of the “Sanitary Sewers” before the 

seventh year for “said area and the persons therein,” they did not require the installation—

or completion—of sanitary sewers for all of Area 4 and Area 12 as those areas existed in 

2018, as Plaintiffs contend. Moreover, the Plans did not specify a particular type of sanitary 

sewer to be used. The Plans were adopted in 1972 and stated that the enumerated services 

would be provided “to said area and the persons therein.” Thus, the Plans of Services 

required that the “Sanitary Sewers” be “completed” for Area 4 and Area 12 “and the 

persons therein” as that area and those persons existed during or before the seventh year 

following the operative date of the annexation.

Accordingly, if the trial court finds the City failed to materially and substantially 

comply with the sanitary sewer service provisions in the Plans of Services, the court may

issue a writ of mandamus compelling the provision/completion of these services “to said 

area and the person therein” as that area and those persons existed during or before the 

seventh year following the operative date of the annexation. If the court finds the City failed 

to materially and substantially comply with the street construction provisions in the Plans, 

the court may issue a writ of mandamus compelling the provision of this service “to said 

area and the person therein” as that area and those persons existed during or before the 

third year following the operative date of the annexation.

Moreover, because the Plans of Services do not identify “a certain standard,” the 

standards to be applied in determining whether the City has materially and substantially 

complied with the Plans of Services are the applicable standards the City adopted or which 

were imposed on the City as a matter of law that were in effect “during or before the seventh 

year following the operative date of the annexation” for sanitary sewers and “during or 

before the third year following the operative date of the annexation” for street construction 

services. Furthermore, the City’s “judgment concerning the details of performance” must 

be “left unfettered.” See Bradley, 438 S.W.2d at 740.

IV. SANCTIONS UNDER TENNESSEE RULE OF CIVIL PROCEDURE 37

In an attempt to simplify what is most certainly a complex matter, the gravamen of 

this issue is whether the trial court abused its discretion by imposing financial sanctions 
- 34 -

against the City for not producing an accurate map of Area 12 until three years after this 

action was commenced and, more specifically, following numerous discovery requests by 

Plaintiffs that should have resulted in the City producing the map at an earlier date.

The genesis of this issue is the City’s adoption of the Area 12 Plan of Services (City 

of Chattanooga Resolution No. 9166) on January 25, 1972. The City attached to the Plan 

of Services a map depicting the boundaries of Area 12 (“the Plan Map”). In particular, the 

Plan Map depicted a winding boundary between Area 12 and Area 4:
- 35 -

One week later, on February 2, 1972, the City passed Ordinance 6393, annexing 

Area 12 into the City’s corporate limits (“the Annexation Ordinance”). Attached to 

Ordinance 6393 was a different map of Area 12 (“the Ordinance Map”). Significantly, the 

Ordinance Map depicted a different boundary between Area 12 and Area 4:
- 36 -

It is undisputed that the second map—the Ordinance Map—depicts the correct 

boundaries of Area 12.16

This action was commenced nearly 40 years later, in May 2011. At that time, the 

City provided Plaintiffs with a copy of the Annexation Ordinance; the City did not, 

however, provide Plaintiffs with a copy of the Ordinance Map. A short time later, the City 

provided Plaintiffs with a copy of the Area 12 Plan of Services and a copy of the Plan Map. 

Plaintiffs subsequently filed their First Amended Complaint in late-May 2011, to which 

they attached copies of the Annexation Ordinance, the Area 12 Plan of Services, and the 

Plan Map—which depicted the incorrect boundary between Area 12 and Area 4.

The parties then proceeded to conduct discovery into the services provided to Area 

12 using the boundary lines depicted on the Plan Map. During discovery, the City prepared 

and produced numerous additional maps to show the services provided to Area 12, 

including a Sanitary Sewer Map, a Storm Water Map, and a Capital Improvements Map. 

Because these maps were derived from the incorrect Plan Map, they were all incorrect as 

well.

Almost three years after the commencement of this action, and following extensive 

and contentious discovery and trial preparation, the parties proceeded to the first trial in 

January 2014. At or around the start of trial, the City provided Plaintiffs with a copy of the 

Ordinance Map for the first time.17 After opening arguments but before the first witness 

was called on February 4, 2014, one of the City’s attorneys, Keith Reisman, announced 

that he had discovered the discrepancy in the boundary lines depicted in the Plan Map and 

the Ordinance Map. Mr. Reisman stated that he first noticed the difference only three days 

prior, and he asserted that the discrepancy revealed that two of Plaintiffs’ properties were 

actually in Area 4. As a consequence of this significant development, the parties agreed to 

continue the trial.

A few days later, Plaintiffs filed a Motion for Default Judgment and/or Other 

Appropriate Sanctions. Plaintiffs sought sanctions “pursuant to T.C.A. § 6-51-108 and 

 

16 There is no evidence in the record of why the boundary between Area 12 and Area 4 changed. 

The boundary depicted on the Plan Map is consistent with the boundaries depicted in the 1968 and 1971 

Fringe Area Studies. The City has suggested the change was due to a Tennessee Valley Authority 

transmission line. The Ordinance Map states that it was “[r]evised” on “January 24, 1972”—one day before 

the Area 12 Plan of Services was adopted in its third and final reading. Thus, we infer that the old, incorrect 

Plan Map was inadvertently left attached to the Plan of Services and replaced in Ordinance 6393, which 

was passed a week later.

17 In their Motion for Sanctions, Plaintiffs alleged that the Ordinance Map was not given to them 

until the morning of February 4, 2014—several days after trial started. In their Response to the Motion for 

Sanctions, the City alleged that the Ordinance Map was produced to Plaintiffs shortly before trial began. 

Either way, it is undisputed that Plaintiffs did not receive a copy of the Ordinance Map until after the first 

pre-trial discovery period closed.
- 37 -

Rules 34A.02, 37.04, and 37.02 of the Tennessee Rules of Civil Procedure.” Plaintiffs 

alleged numerous discovery abuses by the City, but the principal matter at issue was the 

City’s last-minute production of the Ordinance Map. In pertinent part, Plaintiffs asserted 

that the production of the Ordinance Map was the “most recent attempt to improperly delay 

and/or disrupt th[e] trial.” Plaintiffs also argued that their efforts to ascertain the boundaries 

of Area 12 had been reliant on the City because the City was “the only entity that retain[ed] 

and provide[d] the definitive and official version of this data.” Plaintiff’s asserted that 

sanctions, including the award of attorney’s fees and expenses, were warranted because 

they would have to amend their Complaint and engage in additional discovery to obtain 

the relief that they originally sought—the provision of services to all their properties.

In response to the Motion for Sanctions, the City pointed the finger at Plaintiffs, 

asserting that the error originated with, and was perpetuated by, Plaintiffs’ use of the Plan 

Map in their Complaint and discovery requests. The City further argued that “none of its 

actions in providing large amounts of discovery documents for services provided following 

this 1972 annexation of property partially within Area 12 constituted bad faith 

noncompliance under Tennessee law” because the error ultimately could be traced to the 

1972 revision of maps between the time the Plan of Services was adopted and the 

Annexation Ordinance was passed. The City asserted that the discrepancy was disclosed 

as soon as it “was known by Counsel” and “timely brought to the Court’s attention and to 

the attention of Counsel for the Plaintiffs before trial.”

Following a hearing on the Motion for Sanctions, the trial court announced its ruling 

from the bench. Although Plaintiffs did not specifically seek sanctions pursuant to 

Tennessee Rule of Civil Procedure 37.03, the trial court relied on that rule to impose 

monetary sanctions against the City in the nature of attorneys’ fees and costs resulting from 

the “delayed revelation.” The court acknowledged that there had been no “contumacious” 

conduct and characterized the failure to disclose as “inadvertent.” But the court also noted 

the maxim, “he who has the higher knowledge or should have the higher knowledge has 

the higher obligation,” and credited Plaintiffs’ argument that “the City ought to know 

where it is they have what and what got passed.” The court found that the City’s action or 

inaction “caused essentially a yearlong delay in the resolution of th[e] case” and awarded 

Plaintiffs “the cost of the additional discovery to be conducted to get [the case] back to 

where [it was] and should have been” in early 2014.

The court ruled accordingly in its written Order for Sanctions:

[T]he City is the keeper of information and has the higher knowledge, or 

should have the higher knowledge, relative to its records and the records it 

produces. The Court further acknowledges the expensive proposition for the 

Plaintiffs to have to restart discovery after February 5, 2014, so consideration 

has to be taken concerning the cost of the additional discovery to be 

conducted by the Plaintiffs. Therefore, the Court’s ruling on granting 
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sanctions is on the City’s failure to supplement in a timely fashion under Rule 

37.03 of the Tennessee Rules of Civil Procedure with the resulting sanction 

that Plaintiff’s additional discovery expenses, including attorneys’ fees, costs 

and expenses shall be paid by the City. Accordingly, it is hereby: 

l. ORDERED, ADJUDGED AND DECREED that the City failed to timely 

supplement its discovery production under Rule 37.03 of the Tennessee 

Rules of Civil Procedure; it is further 

2. ORDERED, ADJUDGED AND DECREED that the City shall reimburse 

the Plaintiffs for their expenses, including attorneys’ fees, costs and 

expenses, from February 5, 2014, up through the first day of trial relative 

to the additional discovery incurred by the Plaintiffs to get this matter 

back to where this cause was and should have been when trial was set to 

commence on February 5, 2014; it is further

3. ORDERED, ADJUDGED AND DECREED that the Plaintiffs may file 

intermediate requests for attorneys’ fees, costs and expenses, which shall 

only be referred to the Clerk & Master for review upon filing of an 

objection within five (5) days of Plaintiffs filing for intermediate request 

for attorneys’ fees, costs and expenses.

The court subsequently awarded Plaintiffs a judgment against the City for 

$97,609.51 on their first application, and a judgment against the City for $165,663.57 on 

their second application for a total award of $263,273.08 for attorneys’ fees, costs, and 

expenses.

On appeal, the City acknowledges that it was in possession of, and had custody and 

control of, the Ordinance Map at all times material to this action, and it does not dispute 

that the Ordinance Map was not produced to Plaintiffs until early 2014.18 But the City 

insists that Rule 37.03 is inapplicable because “[t]here is no allegation that there was a lack 

of timely supplementation of the discovery responses.” Even if the imposition of sanctions 

was appropriate, the City argues that the trial court erred by awarding attorneys’ fees for 

the cost of discovery related to Area 4 because “the inadvertent error only required the 

delay of the original trial date.” 

Plaintiffs argue that the trial court acted within its discretion by awarding attorneys’

fees. They point out that the City furnished Plaintiffs with incorrect information throughout 

the first pre-trial discovery period, a fact that was revealed by the “discovery” of the 

 

18 Without explanation or reference to the record, the City suggests baldly that “the parties had the 

information in their possession that showed the discrepancy.” We find this assertion unpersuasive in light 

of the fact that the City admitted that the Ordinance Map was not provided until shortly before trial.
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Ordinance Map. They contend that “[t]he City’s discovery abuses drove up discovery costs 

for Plaintiffs, and the trial court simply ordered the City to cover the expenses that would 

not have been generated but for the City’s discovery violations.”

We begin our analysis with Rule 37.03, which authorizes the court to impose 

sanctions when a party “fails to supplement or amend responses to discovery requests as 

required by Rule 26.05.” Tenn. R. Civ. P. 37.03(1). In pertinent part, Rule 26.05 establishes 

a duty to supplement prior discovery responses that were incorrect when made or are no 

longer correct:

A party who has responded to a request for discovery with a response that 

was complete when made is under no duty to supplement the response to 

include information thereafter acquired, except as follows:

. . .

(2) A party is under a duty seasonably to amend a prior response if the party 

obtains information upon the basis of which the party (A) knows that the 

response was incorrect when made; or (B) knows that the response though 

correct when made is no longer true and the circumstances are such that 

a failure to amend the response is in substance a knowing concealment.

Tenn. R. Civ. P. 26.05.19 If a party has failed to comply with Rule 26.05, the court may 

impose sanctions, including attorney fees and expenses caused by the failure:

A party who without substantial justification fails to supplement or amend 

responses to discovery requests as required by Rule 26.05 is not permitted, 

unless such failure is harmless, to use as evidence at trial, at a hearing, or on 

a motion any witness or information not so disclosed. In addition to or in lieu 

of this sanction, the court on motion may impose other appropriate 

sanctions. In addition to requiring payment of reasonable expenses 

(including attorney fees) caused by the failure, these sanctions may 

include any of the actions authorized under Rule 37.02(A), (B), and (C) and 

may include informing the jury of the failure to supplement or amend.

 

19 Subsection (1) is not applicable because the matter at issue does not pertain to the identity and 

location of persons having knowledge of discoverable matters or the identity of a person expected to be

called as an expert witness at trial. Subsection (3) is not applicable because a duty to supplement had not 

previously been imposed by order of the court, agreement of the parties, or at any time prior to trial through 

new requests for supplementation.
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Tenn. R. Civ. P. 37.03(1) (emphasis added); see Kirk v. Kirk, 447 S.W.3d 861, 871 (Tenn. 

Ct. App. 2013); Strange v. Strange, No. E2008-01841-COA-R3-CV, 2010 WL 363304, at 

*12 (Tenn. Ct. App. Feb. 2, 2010).

Whether to impose sanctions arising from discovery disputes is within the broad 

discretion of the trial court. See Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn. Ct. 

App. 1981) (citations omitted) (“The trial court must have wide discretion in [discovery] 

matters.”). Stated another way, “[t]he trial court’s determination of the appropriate sanction 

to be imposed will not be disturbed on appeal unless the court commits an abuse of 

discretion.” Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988) (citing Brooks v. 

United Unif. Co., 682 S.W.2d 913 (Tenn. 1984)). Therefore, we review the trial court’s 

decision to impose monetary sanctions against the City pursuant to the very deferential 

abuse of discretion standard of review.

The abuse of discretion standard embodies two ideas: “First, it indicates that the trial 

court has the authority to choose among several legally permissible, sometimes even 

conflicting, answers. Second, it indicates that the appellate court will not interfere with the 

trial court’s decision simply because it did not choose the alternative the appellate court 

would have chosen.” BIF, a Div. of Gen. Signals Controls, Inc. v. Serv. Const. Co., Inc., 

No. 87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988) (citations omitted). 

Thus, the abuse of discretion standard does not allow reviewing courts to substitute their 

discretion for that of the trial court. Lee Med., Inc., 312 S.W.3d at 524.

Still, the abuse of discretion standard does not “immunize a lower court’s decision 

from any meaningful appellate scrutiny”:

To avoid result-oriented decisions or seemingly irreconcilable precedents, 

reviewing courts should review a [trial] court’s discretionary decision to 

determine (1) whether the factual basis for the decision is properly supported 

by evidence in the record, (2) whether the [trial] court properly identified and 

applied the most appropriate legal principles applicable to the decision, and 

(3) whether the [trial] court’s decision was within the range of acceptable 

alternative dispositions.

Id. at 524–25 (citations omitted). 

When applying this framework, “we look first at whether the factual basis for the 

trial court’s decision is supported by evidence in the record.” Harmon v. Hickman Cmty.

Healthcare Servs., Inc., 594 S.W.3d 297, 306 (Tenn. 2020) (citing Lee Med., 312 S.W.3d 

at 524). We “review the underlying factual findings using the preponderance of the 

evidence standard contained in Tenn. R. App. P. 13(d).” Lee Med., 312 S.W.3d at 525. 

Here, the pertinent, underlying facts in this case are largely undisputed. The Area 12 Plan 

of Services was adopted with an incorrect map; the Annexation Ordinance was passed with 

a correct map. The City was in sole possession, custody, and control of the Annexation 
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Ordinance and Ordinance Map. It provided Plaintiffs with the Annexation Ordinance, but 

not the Ordinance Map. Despite the City’s sole possession of the Ordinance Map, it 

generated discovery responses as to the services provided to Area 12 based on the incorrect 

boundaries depicted in the Plan Map. As a result, when the Ordinance Map was 

“discovered” in early 2014, the parties realized that extensive, additional discovery was 

necessary. The trial court based its decision on these facts, which are supported by evidence 

in the record.

The second question to consider under the abuse-of-discretion framework is 

whether the trial court properly identified and applied the most applicable legal principles 

relevant to its decision on Plaintiffs’ Motion for Sanctions. See id. at 524. When 

determining whether the trial court applied the correct legal standard, our review is de 

novo with no presumption of correctness. Fisher v. Hargett, 604 S.W.3d 381, 395 (Tenn. 

2020). The City contends that the trial court did not apply applicable legal principles 

because Rules 26.05 and 37.03 concern the supplementation of a prior discovery response 

and the sanctions here were imposed due to a “good faith” discovery of information. While 

we agree that Rule 37.03 initially appears to be an imperfect fit to the circumstances of this 

case, we find the trial court applied the most appropriate legal principles.

We first note that “[t]he purpose behind pre-trial discovery is to eliminate surprise 

and enable the parties to discern what is at issue in preparation for trial.” Denney v. Lovett, 

No. M2004-03020-COA-R3-CV, 2006 WL 1915303, at *6 (Tenn. Ct. App. July 11, 2006) 

(citing Wright v. United Services Auto Ass’n, 789 S.W.2d 911, 915 (Tenn. Ct. App. 

1990); Strickland, 618 S.W.2d at 501. To that end, Rule 26.02 defines the scope of 

discovery broadly, allowing parties to “obtain discovery regarding any matter, not 

privileged, which is relevant to the subject matter involved in the pending action.” Tenn. 

R. Civ. P. 26.02(1). To facilitate this, “parties may obtain discovery by a variety of 

methods,” including “depositions upon oral examination or written questions; written 

interrogatories; [and] production of documents or things.” Tenn. R. Civ. P. 26.01.

Generally, “sanctions can be applied only for a failure to comply with an order of 

the court.” Strickland, 618 S.W.2d at 500. However, when a party fails to supplement or 

amend responses as required by Rule 26.05, Rule 37.03 directs that the party “is not 

permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a 

motion any witness or information not so disclosed.” Tenn. R. Civ. P. 37.03(1). In addition 

to or in lieu of this sanction, the court may require the offending party to pay “reasonable 

expenses (including attorney fees) caused by the failure” to supplement or amend. Id. As 

the trial court correctly noted, Rule 37.03 does not require the conduct to be contumacious.

The City correctly points out that the trial court did not identify a single 

interrogatory, deposition question, or request for documents that the City was under an 

obligation to supplement. This assertion misses the forest for the trees. The record is replete 

with instances where Plaintiffs requested information related to the services provided to 

Area 12 and the persons therein. The City’s initial error in providing an incorrect map of 
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Area 12’s boundaries was so fundamental that it either rendered the City’s prior responses 

incorrect or drew them into question. There is no evidence to contradict the City’s assertion 

that its attorneys did not know about the change in boundary lines until a few days before 

trial. Nonetheless, as Plaintiffs argued and the trial court correctly noted, the City was not 

only in possession of this information, but it was also responsible for the creation and 

maintenance of this information.

A strict reading of the text in Rule 26.05 and Rule 37.03 supports the City’s 

argument that these rules do not apply. Rule 26.05 applies when information is “thereafter 

acquired.” Rule 37.03 applies when a party has failed to supplement or amend “as required 

by 26.05.” Tenn. R. Civ. P. 37.03(1). Nonetheless, the principle behind these rules is that 

a party who has responsive information has a duty to provide that information in a timely 

manner. Rule 26.02(1), the bedrock of our rules governing discovery, is “designed for the 

discovery of facts which will enable litigants to prepare for trial free from the element of 

surprise.” Strickland, 618 S.W.2d at 501 (citation omitted). “When the rules do not provide 

a sanction for those violations which defeat the purpose of rule 26.02(1), it is mandatory 

that the trial judge have the authority to take such action as necessary to achieve that 

purpose.” Id. Thus, the “trial court must have wide discretion in [discovery] matters.” Id.

(citations omitted).

Still, the City points out that Rule 37.03 applies only when the violation is “without 

substantial justification.” Although the trial court did not address this element, we find its 

analysis complies with this standard. It is undisputed that the City was in possession, 

custody, and control of the Annexation Ordinance Map since 1972. Moreover, the City 

offers no justification for its failure to realize that it was in possession of the Annexation 

Ordinance Map at all material times to this litigation, particularly realizing that such 

evidence was at the center of the controversy and within the scope of Plaintiffs’ numerous 

discovery requests. Additionally, the City failed to show how Plaintiffs could have 

obtained the Annexation Ordinance Map but for obtaining it from the City through 

discovery. Although the City insists its oversight was “substantially justified,” as that term 

is contemplated in Rule 37.03, the trial court disagreed and we find no basis upon which 

to overturn that finding.

In fairness to counsel for the City, we acknowledge, and Plaintiffs do not dispute,

that counsel were unaware that their client, the City of Chattanooga, had the Annexation 

Ordinance Map. Moreover, the City’s counsel produced the Annexation Ordinance Map to 

the court and Plaintiffs within three days of learning of its existence. As such, we agree 

with the trial court that counsel promptly produced the map after learning their client was 

in possession of the map, but that does not excuse the City of its failure to produce the map 

at a much earlier date.

Based on the foregoing, we find the trial court applied the appropriate legal 

principles.
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The third and final question in the abuse of discretion framework is “whether the 

trial court’s denial of Plaintiffs’ motion to alter or amend was within the range of acceptable 

alternative dispositions.” Harmon, 594 S.W.3d at 306 (citing Lee Med., 312 S.W.3d at 

524). Rule 37 gives trial court’s the discretion to award attorney fees caused by a party’s 

noncompliance. See Tenn. R. Civ. P. 37.01(4), 37.02(E), 37.03(1). We find no basis upon 

which to disagree with the trial court’s discretionary decision to impose monetary sanctions 

in this case. As the trial court reasoned, the City was the keeper of information, in this case 

the Annexation Ordinance Map, and it knew or should have known—i.e., “ha[d] the higher 

knowledge, or should have [had] the higher knowledge”—about its records. The facts 

support that reasoning. The record also supports the trial court’s finding that the City’s 

failure to produce the Annexation Ordinance Map at a much earlier date was the cause of 

“the expensive proposition for the Plaintiffs to have to restart discovery after February 5, 

2014.”

It is well established that “[t]he abuse of discretion standard does not permit an 

appellate court to substitute its judgment for that of the trial court.” Harmon, 594 S.W.3d 

at 306 (quoting State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019)). “Accordingly, if 

the reviewing court determines that reasonable minds can disagree with the propriety of 

the decision, the decision should be affirmed.” Id. Based on the above, we find that the trial 

court’s decision was “within the parameters of the trial court’s sound discretion.” Id. at 307 

(quoting McCaleb, 582 S.W.3d at 198). Thus, we affirm the trial court’s decision to impose 

monetary sanctions against the City.

Because we have affirmed the trial court’s decision to award monetary sanctions, 

we must consider the City’s next issue, which is whether the awards of attorneys’ fees and 

costs related to Area 4 discovery sanctions were in the correct amounts. 

The City contends that “the inadvertent error only required the delay of the original 

trial date” and asserts that there “was no showing of prejudice or extra cost on the part of 

Plaintiffs because the trial date was delayed.” However, in their appellate brief, the City’s 

argument on this issue consists of one paragraph, with no citation to the record or legal 

authority. Accordingly, the City’s brief on this issue fails to comply with Tenn. R. App. P. 

27 and Tenn. Ct. App. R. 6. As we have previously held, a “skeletal argument that is really 

nothing more than an assertion will not properly preserve a claim.” Chiozza v. Chiozza, 

315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (quoting Newcomb v. Kohler Co., 222 S.W.3d 

368, 400 (Tenn. Ct. App. 2006)). Moreover, “the 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.” Bean, 40 S.W.3d at 55 (citations omitted).

Accordingly, we find the City has waived the issue. We also note that the City’s 

argument grossly downplays the fundamental and far-reaching effects of its failure to 

disclose the Ordinance Map. This case arises from the annexation of additional territory 

into the City’s limits and its obligation to provide services to the properties within that 

territory—not just to Plaintiff’s property. The Ordinance Map revealed not only that a 
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portion of Plaintiff’s property was in Area 4, but also that a number of prior discovery 

responses were no longer true or accurate. Thus, substantial amounts of time and money 

had already been spent on discovery that would, at the very least, need to be revised and 

reconsidered.

Because the City has not provided any justification for reversing the amounts 

awarded to Plaintiffs, we affirm the trial court on this issue as well.

V. ATTORNEY’S FEES AS AN EQUITABLE REMEDY 

Plaintiffs contend “the equities of this case demand a greater remedy than that which 

is afforded by . . . § 6-51-108.” In particular, Plaintiffs argue that the court “should have 

ordered the City to pay Plaintiffs’ attorney’s fees for the increased costs the City’s actions” 

because the City “needlessly increased the costs of litigation.”

The only authority cited by Plaintiffs is Vaughan v. Atkinson, 369 U.S. 527 (1962), 

an admiralty law case in which the United States Supreme Court held that a seaman was 

entitled to attorneys’ fees as damages after the defendant shipowners failed to pay 

“[m]aintenance and cure.”20 Id. at 530–31. The Court reasoned that “while failure to give 

maintenance and cure may give rise to a claim for damages for the suffering and for the 

physical handicap which follows, the recovery may also include ‘necessary expenses.’” Id.

at 530 (citations omitted).

Plaintiffs cited no authority for the proposition that they are entitled to “necessary 

expenses” or that “necessary expenses” would include attorneys’ fees under Tennessee 

law. Section 6-51-108(e) requires courts to “assess the costs of the suit against the 

municipality” if the court finds “the municipality has failed without cause to comply with 

the plan of services.” However, “[t]he term ‘costs’ has not generally been construed to 

encompass attorney fees.” Cracker Barrel Old Country Store, Inc. v. Epperson, 

284 S.W.3d 303, 310 (Tenn. 2009). Accordingly, we find Plaintiffs are not entitled to an 

award of attorneys’ fees.

Furthermore, as we discussed earlier, Plaintiffs made an election of remedies when 

pursuing a mandamus action under § 108(e) and allowing Plaintiffs to seek an additional 

remedy, as they do here, would be inconsistent with the nature of a mandamus action, 

which is available only when “there is no ‘plain or adequate remedy.’” See Hayes v. Civ. 

Serv. Comm’n of Metro. Gov’t of Nashville & Davidson Cty., 907 S.W.2d 826, 828 (Tenn. 

 

20 “Maintenance and cure is designed to provide a seaman with food and lodging when he becomes 

sick or injured in the ship’s service; and it extends during the period when he is incapacitated to do a 

seaman’s work and continues until he reaches maximum medical recovery.” Vaughan, 369 U.S. at 531.
- 45 -

Ct. App. 1995) (“Mandamus and damages for the failure to do the thing the mandamus 

commands are inconsistent remedies.”).

Thus, we agree with the trial court’s conclusion that Plaintiffs were not entitled to 

additional relief under § 102(b)(5), but we do so on slightly different grounds than those 

relied on by the trial court.

IN CONCLUSION

Based on the foregoing, we reverse the trial court’s determination that the City 

materially and substantially failed to comply with its obligations to provide “Street Paving”

for Area 12. We also reverse the trial court’s judgment regarding the City’s compliance 

with its obligations to provide “Sanitary Sewers” and “Street Construction” to Areas 4 and 

12 and vacate its writ of mandamus compelling completion of the Area 12 Plan of Services

and remand for further proceedings consistent with this opinion. We affirm the court’s 

judgment in all other regards. Costs of appeal are assessed equally against the parties, onehalf against Plaintiffs and one-half against the City.

_________________________________

FRANK G. CLEMENT JR., P.J., M.S.