### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE MARCH 3, 2005 Se ssion CITY OF NEW JOHNSONVILL E v. KEVIN E. HANDLEY, ET AL 

### . and GENE PLANT, ET AL 

### . v. KEVIN E. HANDLEY, ET AL 

### . Direct Appeal from the Chancery Court for Humphreys County Nos. CH-01-179 & CH-01-211 Robert E. Burch, Chancellor

No. M2003-00549-COA-R3-CV - Filed August 16, 2005

This appeal involves protracted litigation over a par cel of land convey

ed by the City

of New Johnsonville, Tennessee, to a member of the Ne w Johnsonvill e City

Council. T

he may or, on be half of the city, subsequently

filed suit against the councilman seeking to nullify the transaction. During the pendenc

y of that litig ation, se

veral ta xpayers file d their

own suit against the councilman alleging the same ca

uses of a ction set f orth in the city’s complaint. The city and the councilman ultimat ely settled their laws

uit. The ta

xpayers’ law suit contin

ued, ultima

tely naming t he city as a def endant. The trial court partially g ranted the defendants’ motions for sum mary judgment by r

uling that the taxpayersdid not have standing to contest the land transaction between the city and the councilman. The court ruled that the taxpaye rs did have standing to continue with their other causes of action concerning

allega tions that t

he counc ilman eng aged in illega l business transactions with th e c it y. The taxpay

ers subse quently

took a volu

ntary nonsuit on their remaining claims and filed an appeal to this Court to contest the trial court’s grant of summary judg

ment on their claim regarding the land transaction. We vacate the trial court’s decision reg arding the land transaction, and we remand for further proceedings not inconsistent with this opinion. Tenn. R. App.P. 3; Ap peal as of Rig ht; Judgm ent of the C hancery C ourt Rev ersed and Remanded A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., joined, and H OLLY M. K IRBY , J. , c on cu rr ed se pa ra te ly. R. Eric Thornton, D ickson, T N, for Ap pellants T. Holland McKinnie, City Attorney , Franklin, TN; Michael R. Hill, Milan, TN, for A ppellee , City of New Johnsonville, TN Benjamin C. Regen, Dickson, TN, for Appellee s, Kevin E. Handley & Gloria J. Handley1 Mayor Heth coat serv ed as Mayor of New Johnsonv il le f rom 1988 t o 2000. 2 Counci lman Handley

took of fi ce i n Sept ember of

1998. -2- Stephen D. Wakefield, Memphis, TN, for Appellee, E. I . Dupont De Nemours and Company John Le e Williams, R

obert I . Thomason, Jr., Wave rly , TN, for

Appellee , Volunte er Title Company, I

nc., Trustee Lewis L . Cobb, Jerry P. Spore, J. Brandon McWherter, Jackson, TN, for Appellee, Union Planters Bank

OPINION I. F ACTUAL B ACKGROUND AND P ROCEDUR AL H IST ORY
This appeal involves protracted litigation between numerous parties concerning the transfe r of a parcel of land located

in New Johns onville, H

umphrey s County, Tennes see. The facts, as set forth in over 2,000 pages of technical r ecord, are largely

undisputed. In1986, Mr. and Mrs. E. W. Lucas (the “L ucases”) convey

ed, as a gift, approxima

tely eighty (80) acres of property

(the “Lucas Proper

ty”)located in the City of

New Johnsonville (“City”) to the Ci ty. Although not expressly stated in the deed, the Lucases and the City apparently r

eached an oral agreement

that the Ci

ty would use the proper

ty f or industr ial deve lopment. Sp ecifica lly, the City agreed to convey

the L ucas Prop erty

at no cost

to entitie s desiring

to enga ge in ind ustr ial and/or co mm er ci al de ve lo pm en t o n t he Luc as Pr op er ty f or th e o ve ra ll be ne fi t o f t he Ci ty. The City subsequently

created an industrial park on the Lucas Property

by conveying

several tracts of land to various industries at no cost. In approximately July of 1999, May

or Lawrence

A. Hethcoat (“ Ma yo r Hethcoat”) 1 began negotiating with E. I . DuPont de Nemours & Company (“DuPont”), an already

existing indu stry in t

he City, about locating its new warehouse and distribution facility in the City ’s industrial park. DuPont expr essed its d

esire to have some one else build the facility on the prope

rty which DuPont woul d, inturn, lease. The City off ered to convey a portion of the Lucas Proper ty to an entity

selected by D

uPont to build the facility. Duringthe course of the City’snegotiations with DuPont, Kevin E. Handley (“Councilman Handley” ) served as a member of the New Johnsonv ille City Council (“City Council”). 2 Councilman Handley alleged that, in August of 1999, he had a c hance meeting with a

DuPont employee at

a local restaur ant. Councilman Handley lea rned from the e

mploy ee that D uPont had d

ecided t o accept the City’s offer. During the course of their conversation, Councilman Handley inquired about bidding3 Pursuant to its mort gage with the H and leys, Un ion P lanters to ok a se curity intere st in the D eed of T rust to

s ecure the mort gage. As furt her securit

y for the mort gage, t

he Handleys also exe cuted an Ass ignment of Leas es an d Rents in favor o f Union P lanters. -3- onthe construction of the Du Pont facility. I n September of 1999, DuPont mailed Councilman Handley a “Request for Proposal” form. Councilman Handley completed his bid proposal an d submittedit to DuPont. On Novemb er 1, 199 9, DuPont sent a letter to Councilman Handley notifying him that it had, in essence , selected his bid proposal over the others submitted. Thereafter, Councilma

n Handle y c ommunica

ted to May

or Heth coat that he had b een selected by DuPont to bu

ild the fa cil ity. May

or He thcoat c onvened

a specia l called meeting

of the City Council on Novemb er 19, 19 99, to discuss conveying a portionof the Lucas Property to Councilman Handley and his wife (along with Councilman Handley, collectively re ferred to as “the Handley s”). CouncilmanHandley c ame to the meeting and informed the other members of the City Council that h e had been selected to build the DuPont facility . At the special called meeting, the City Counci l passed a resolution for the convey ance of 32.657 acres of the Lucas Property to the Handleys. Tha

t same day, May

or Hethcoat, on behalf of theCity , exe cuted a “Warranty Deed” convey

ing 32.657 acres o f the L

ucas Prop erty

in conside

ration of $1.00 to the

Handley s, d/b/a Mid South Logistics. Inthe inter

im, the Ha

ndleys s ecured a loa

n from Union Planters Bank, N.A. (“Union Planters”) in the am ou nt of $5 ,3 73 ,1 81 .6 9 t o c on st ru ct th e D uP on t f ac il it y. 3 On January 3, 2000, the Lucasesconveye d an additional 19.11 acres of property located adjacent to the parcel at issue to the Ha nd le ys in co ns ideration of $38,2 20.00. On January 17, 2000, t

he Handl ey s execute d a lease agreement

with DuPont calling for the construction and subsequent lease of a warehouse. A “Side Letter ” exec uted by the Handle ys and DuPont set forth DuPont’s specific ations and called for the constructionof a warehouse 297,5000 square fee tinsize. Counc ilman Han dley procee ded to buil d anindustrial warehouse partially located on the parcel

obtained from the City and partially located on the parcel obtained from the L ucases. At some point , the citize

ns of the Ci

ty e lected M ayor Gene

Plant (“M ayor Plant” ) as their new mayor. Afte

r the transaction between the City and the Handley s had been conclude d, th e Comptroller

of the Treasury

for the State o f Tennessee (the “Comptroller”) conducted a n investigation

and audit of the City’s rec ords for a period spanning July 1, 1998, through Ma rch 31, 2000, “to de termine t

h e extent of the [City’s] compliance with certain laws and r egulations.” On December

12, 2000, the Comptroller issued his findings which revealed several proble m areas. The first area d isc ussed in the Comptroller’s report addressed the transaction betwe en the City and Councilma

n Handle y, providing : 1. FINDING: Apparent c onflict of int erest Two city councilmen had a pparent direct

conflicts of interest between their official duties and personal interest s. The Ci ty purchase d goods and services-4- from two councilmen

as well as conveying

a 32-acre tract of land to

one of them. Section

12-4-101(a)(1), Tennessee Code Annotated, states: I tis unlawful for any officer , committee member, director, or other person whose dut

y it is to vote for, let out, overlook , or in any manner t

o superintend

any work or any contr

act inwhich any municipal c orporation, co un ty, state, de

velopmen t district, utilit y district, human resource agency , or other political subdivision cre ate d by statute shall or may be inter ested, to b e directly inter

ested in any such contract. “Directly inter

ested” means an y contract with the o fficia l persona lly o r w ith any

business i

n whichthe offic ial is the s o l e proprietor, a partne r, o r the person having the controlling interest. . . . Inaddition, the Ne w Johnsonville municipal code, Section 4-101, states, “Except for the receipt

of such compensation

as may be lawfully pr

ovi ded for the perfor manc e of his municipal duties, it shall be unlawful for any municipa l officer or employ

ee to be private ly interest ed in, or t

o p rofit, directly or in di re ct ly, from busin ess dealings wi th th e municipality.” RECOMMENDATION: To provide impartial decisions regard in g the city ’s contracts, official should ensure that unlawful conflicts of interest, as defined in Section 12-4-101, Tennessee Code Annotated , are avoided. B usiness deali ngs between the officials and the city s h ould be avoided as required by

Section 4-101 of

the municipal code. The may

or and me

mbers of the city council should seek legal advice and t ake appropriate corrective action.4 The original complaint fi led by the City di d not name DuPont as a def endant. The Handleys su bsequentl y fi led a moti on wi th t

he t ria l cou rt, purs uant

to Tenne ssee Rule of

Civil Procedure 12.02(7) , s eeki ng t o dis miss the act ion f or the City’s failure to join an indi spensabl e party . The tri al court denied the Handleys ’ moti on and grant ed the City thirty (30 ) days to ame nd its co mpla int to nam e D uPo nt as a d efend ant. -5- MANAG EMENT’S RESP ONSE: Mayor Plant and C ouncilme n C. D ellinger, J. Dellinger, Handley, Ha rbison,and Ja mes: We c oncur. The city

will abide and enforce Sectio n 12-4-101, T

e nnessee Code Annotated, and will seek le ga l a dv ic e f

ro m t he ci ty a tt or ne y. Former Mayor

Hethcoat: Failed to respond. Councilm an Laughlin: Iconcur. Unused land should b e returned im me di at el y. An agreement should benegotiated for the land used. The City’s attorney

subsequently issued an opinion letter expressing his opinion thatthe City

could not lawfully convey

real property

to a member of the City Council. OnJuly 3 1, 2001, Ma

yor Plant, acting on be

half of the City , file d a compla int in the Chancery Co ur t o f H um ph re ys C ou nt y ag ai ns t t he Ha nd le ys i nd iv id ua ll y; their bus iness, Mid South Logistics; Volunteer

Title Company, I

nc., the trustee holding title to the property at issue; and Union Planters as mortgagee. 4 The complaint alleged that the transaction betwee n the City and Councilman Handley violated several provisions of the City’ s municipal code and state law, specifically Sec tion 12-4-101(a)(1) of the Te

nnessee Code. The

City request ed that t he tri al court issue a temporary restrainingorder against the Handley s to prevent

further construction on the subject parcel; enter an order requirin g the re ntal pay ments under the DuPont lease be paid into the court pending resolution of the matter; an accounting of al l profit s received in connection with the use of said property ; an order requirin g the Ha ndleys to turn ov er to the

City all rents or profi ts rece ived in connection

with the use of the property ; an order finding the transaction failed for l ack of consider ation; an order finding the execution of the deed by the City in favor of the Handleys constituted an ultra vires act; anorder finding the speci al ca lled meeting a nullity in violation of section 8-44-103(b) of the Tennessee Code ; and an order terminating and extinguishing all liens the Ha ndleys placed on the pr op er ty. Mr. R. Eric

Thorn ton (“Mr .Thornton”), with the law f irm Ramsey

& Thorn ton, PL C in Di ck so n, Te nn es se e, fi le d t he co mp la in t o n b eh al f o f t he Ci ty.5 During the co urse o f this litigation, attem pts were made to disqualify Mr. Thornton from representing both the

City and the T axpayers. Despit e suc h ef fort s, the tri al c ourt

all owed Mr. Thorn ton to represent both parties during the cou rse of the pro ceed ings be low. M r. Th ornto n is now repre senting th e T axp ayers a s the Ap pellan ts on ap pea l. -6- InAugust of

2001, sev eral cit

izens of the

City appear ed at a sp ecial c alled mee

ting of t he City Council to present a petition signed by numerous citizens asking the Ci ty Council to support the lawsuit fi led by Ma yor Plant. A motion was made at the me eting to support the lawsuit, but the motion failed to pass. On September 4, 2001, several citizens of the City (herei nafter refer red to as the “Taxpayers” ) filed a motion with the trial court asking, pursuant to Rule 20.02 of the Tennessee Rules of Civil

Procedure, to join the l awsuit. T hat same day , the City

filed a motion to ame

nd its complaint to allege that the Handleys we re trespassers and had vandalized the subject proper ty. The trial court subsequently g ranted the City’s

motion. On September 17, 2001, the Taxpayers filed a complaint in the trial cou rt aga inst the Hand ley s, individu

ally ; the Hand

ley ’s busine ss, Mid South Logistics; Voluntee

r TitleCompany, I

nc.; Union Planters; and DuPont. Mr. Thornton represented the Taxpay

ers in this lawsuit a s well. 5 The Taxpa ye rs’ comp laint alle ged the

same violations and requested the same relief as the complaint filed by the City, particularly

a violationof Section 12-4- 101(a)(1) of the Te

nnessee Code. On D ecembe

r 3, 2001, the City

filed a motion to ame

nd its complaint once more to add allegations that Councilman Handley, since

taking office, had engaged in at le as t t we nt y-e ig ht (2 8) il le ga l b us in es s t ra ns ac ti on s w it h t he Ci ty. OnJanuary 17, 2002, the trial court e ntered an order on the City ’s second motionto amend its compla

int. I n that ord er, the t rial cou rt stated as follow s: Came the Plaintiff, City of New Johnsonville, by and throu gh its attorne

y, a nd moved the Court for permiss ion to amend its Complaintto add an a

ddit ional party, ave

rments and prayers for relief. The C ourt upon consideration of said motion . . . is of th e opinion that said motion should be granted

. Plaintiff has sixty (60) da ys to file a consolidat ed c omplaint with all amendments and prayer s for relief in this cause. (emphas is added). Thereafter, on Januar y 24, 2002, Mr. Thornton filed an “Amended and Consolidated

Complaint”

with the tr

ial cour t which sta

ted as follo ws: “Come

now the Pla

intiffs, pursuant to Court Order

consolidat ing the actio ns filed by Plaintiffs, and file this Amended a nd Consolidated

Complaint restating the allega tions of the

Plaintiff s in one action, consolidated under Docket Number CH-01-179 .” (emphasis adde d). I n the “consolidate d” comp laint, Mr. Thornton restated the various allegations lodged ag ainst the Handleys a nd other defendants, namely , that the land transaction between Councilman Handley and the City violated city and state laws; tha

t th e Ha nd le ys were trespassers; tha t the Hand leys had vanda lized the property; and that Councilman6 Even the Appell ees appear conf used as to whether t

hese actions were j oined or co nsolid ated b y the trial co urt. In the fact se ction o f their brie f, the Handleys assert that the January 17, 2002, order ent ered by t he tri al court

consti tut ed “an ord er co nsolid ating the C ity Acti on and t he In divi duals ’ Act ion for di scoveryand tri al, and direct ed that an amended and consolidated complaint in both acti ons be filed.” To support this f act, the Handleys ci te to the trial court’s January 17, 2002, order in the re cord. They f urther assert th at the consolida ted com plaint filed by M r. Tho rnton was in respo nse to this order.

7 Due to an apparen t overs ight, the City C ounc il had to re-vote on the Ha ndleys ’ prop osed settleme nt at its October 7, 20 02, m eeting. T he C ity Cou ncil, by re solu ti on, v oted t o r e-affirm its decision to accep t the Hand leys’ proposed settlement offer. -7- Handley ha

d engaged in at least twenty -eight (28) illegal business transactions with the City since taking office. 6 On September 9, 2002, May or Carolyn I

ngram (“May

or Ingra m”) took office as the City ’s newly elected may

or. On the same day

that Mayor I

ngram took

office, Councilman

Handley’s te

rm of office appare ntly ended. Additionall

y, M ayor In

gram, on the same day she took office, issued a letter to Mr. Thornton terminating his representation of the City in this matter. Also on September 9, 2002, the Handleys tende red a settlement offer

to the City. The settlement offer called f or the City to dismiss with prejudice all claim s filed in i ts lawsuit a

gainst the Hand ley s and othe

r defen dants. Inturn, the Handleys a

greed to dismiss all of their counterclaims filed in the case. Inaddition, the agreement

called for the City to execute a quitclaim deed in favor of the Handley s re-convey

ing the propert y originally c onveyed

in the November 16, 1999, deed. Finally, the ag reement proposed that the parties e

nter into a

mutual covenant not to sue. The new City Council dis cussed the Handle ys’ proposal at its September 9, 2002, scheduled meeting and passed a r esolution accepting the offer. 7 Thereafter, the Handleys a nd the City entered

into a “Mutual General Release and Covenant Not to Sue,” and Mayor

Ingram e xecuted a “Quitclaim Deed” in favor of the Handle ys. OnSeptember 10, 2002, the City filed a “Notice of Voluntary Dismissal” with the trial c ourt seekingto voluntar

ily d ismiss all c laims file d in

the case. In turn, the Ha

ndleys filed their “Notice of Dismissal” seekingto dism iss all of their counterclaims against the City that same day. On September

12, 2002, the Taxpayers, still repre sented by Mr. Thornton, filed a motion for summar y judgment seeking a ruling that, as a matter of law, the City ’s gra

nt of a por tion of the Luca s Propert

y to the Handleys was null and void as an ultra vires act, and any subsequent

attempt by

the City to convey the prope rty to the Handleys re

mained an ultra vires act. Tha t sameday, the Taxpay

ers filed a motion seeking partial summary judgment by a sserting that some 20.31 acres of the entire 32.657 acres convey

ed to th e H an dl eys was not encumbered by Union Planters’ mortgage, and they sought a ruling that, as a matter of law, the Taxpay ers were entitled

to a judgment on the issue of liability for damages to and profits from the 20.31 ac res of land. OnOctober 4, 2002, the Handleys filed the ir response to the Taxpaye rs’ motions and alleged that genuine issues o f fact r

emained to be res olved by

trial of t he matter . In their response, the Ha nd le ys argued, in essence, that the Ta xpayers did not have standing to contest the City’s conveya nce of the property

at issue to the Handleys, and the Taxpayers’ a

ction became moot when8 Union Planters fi led its r esponse to the Taxp ayer’s m otion s for sum mary j udgm ent that sa me d ay as we ll.

DuPo nt fil ed its respo nse to the T axp ayers’ m otion s on O ctob er 9, 2 002 , ado pting, p ursuan t toT enne ssee R ules of C ivil Procedure 10.04, Union Planter s’ r esponses t o the moti ons. Li kewise , Volun teer Title Co mpan y, Inc. filed a response on O ctob er 9, 2 004 , ado pting the respo nses co ntained in Un ion P lanters’ re spo nse.

9 The trial court subseque ntly granted these mo tions. -8- the City settled the action with the Handley s, thereby e

xtinguishing any claims the Ta xpayers had. That same

day , the Han

dley s filed the ir own moti on for sum mary judgmen t again stthe Taxpayers reiterating

the arguments in their response to the Taxpay ers ’ motions. 8 In a dd it io n, th e H an dl eys filed a motion with the trial court seeking to amend their countercla im to include additional causes of actionagainst the Taxpay ers, and a motion to amend their answer to include additional affirmative defense s. 9 OnOctober 9, 2002, the trial court entered an order, pursuant to the ag reement between the Ha nd le ys and the City, dismissing theCity’s claims and the Handley s’ counterclaims with prejudice. OnOct ob er 24, 20 02, the Ta xpayers file d a motion a sking the trial cou rt to alte r or ame nd its October 9, 2002, order to reflect that the dismissalwas not with prejudice. On November 8, 2002, UnionPlanters filed

its motion for summary judgment in this case. On November 25, 2002, DuPont joined Un

ion Plante

rs’ motion

for summa

ry judgmen t. OnJanuary

27, 2003, t

he trial c ourt ente

red an or der addr essing t he Taxpay

ers’ moti on to alter or amen d the c ourt’ s Octo ber 9, 2002, order, stati ng:

These consolidated civil actions cameon to be heard . . . upon the motion of Gene Plant and other individual plaintiffs in Gene Plant et al. v. Kevin E. Handley

et al., Civil Action No. CH-10-211 before the Court ( the “Individuals’ Action” ), to alter or amend the Court’s order entered on October 9, 2002, dismissing with prejudice the claims and counterclaims asserted by the parties in City of New Johnsonville, Tennessee v. Kevin E. Handley , et al., Civil Action No. CH-01-179before

the cour t ( the “City Ac tion” . . . .)[.] I. IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the motion of Gene Plant and others to alter or amend the Order of Dismissal b e and the

same her eby is denied, to the extent

the said motion seeks to affect the rights and c laims of the parties to the CityAction

or the le gal ef

fect of the Orde r of Dismis sal upon those rights a nd claims. II. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the motion of G ene Plant and oth er s to alter or amend the Order of Dismissal be and the

same her eby is gran ted, to the

extent th at th e said motion seeks a clarification by the Court that the Order o f10 The Taxpayer s’ noti ce of app eal pr ovid es that the y are co ntesting the trial cou rt’s January 23, 2003, order. However, the order, alt hough sig ned by the tri al j udge on Janua ry 23, 2003, wa s not fi led u nti l Jan

uary 27, 2003

. Th erefo re, it bec ame effective a s of Jan uary 2 7, 20 03. See Tenn. R. Civ. P. 58 (200 4).

11 Th is Order i s ent it led “ Memorandum Opin ion onDefendants ’ Motion f or Summary Judgment .” The order provides th at th is orde r i s t o addr ess Civ il Act ion“No. CH-01- 211. ” As not ed bel ow, th e t ri al court u ses th e sa me number when addressing the Taxpayers’ motion. -9-

Dismissal does not, i

n and of it self, alt

er th e pres ent procedural posture of the Individuals’ Action. III. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, notwithstanding the Order of Dismissal does not in and of itself affect the procedural posture of theIndividuals’ Action, the Court does not hereby rule or pur

por t to rule upon the legal effect of the Or der of Dismissal on the cla

ims asser ted by the plain tiffs in the Individuals ’ Action. The legal effect of t he Orde r of Dismis sal on thos e claims shall be and remain as provided by applicable law.

. . . . V. IT IS FU RTHER O RD ERED, ADJUDGED, AND DECREED that for all purposes this order

is a final order in City of New Johnsonville, Tennesseev. Kev in Handle y, Gloria J

. Handley

, Voluntee

r Title Company, Inc., Trustee, and Union Planters Bank, N.A. , Civil Action No. CH-01-17 9 before

this Court, and the Order of Dismissal shall operate as a complete and final adjudication of all the right [sic] and claims of all parties thereto. (emphas is added). On February 21, 2003, the Taxpayers filed a motion, pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, asking the cour t to set aside its October 9, 2002, order. OnFebrua

ry 21, 2003, t

he Taxpay

ers file d a motion a sking the trial cou rt for pe rmission to amend their complaint toadd additional causes of action related to the City ’s alleged attempt to ratify the land transaction by se ttling wi th th e H an dl eys . T ha t s am e d ay, the Taxpayers filed a notice of appeal to this Court to contest the trial court’s January 27, 2003 order. 10 OnAug ust 2 9, 2003, the trial court entered two memorandum opinions addressing the motions for summary judg ment filed by the par

ties. In the first memorandum opinion, the trial court addressed t he defend ants’ moti ons for su mmary judgmen t. 11 The court began by

examining the standing issue. The court found that any demand by

the taxpayers to the City

Council requestingit to correct any

illega lity would be futile, therefore, any

failure on the part of

the Taxpayers to make suchde ma nd wa s e xc us ed . N ex t, th e t ri al co ur t c on cl ud ed th at la nd , e sp ec ia ll y la nd gi ft ed to a c it y, does not constitute “public funds.” Therefore, the court conc luded that the Taxpayers did not have standing to challenge the City ’s transfer of 32. 657 acres of the L ucas Prop erty

to the Han

dley s.12 This order is entit led “Memo randum Op inion on Plainti ff’ s Motion for Summary Judgm ent and for Part ial

Summary Judgment .” Int erest ingl y, t his or der provides that

it too is addressi ng Civi l Acti on “No. CH-01-211.” 13 On ce ag ain, the trial c ourt’s o rder pro vides that it is add ressing C ivil Actio n “N o. CH -01-2 11.” 14 Although we f

ind n o suchmoti on in t he re cord, the court ’s order s tat es t hat the Handley s f

il ed a motio n to dismiss for the T axp ayers’ failure to ad d the C ity as an ind ispen sable party.

15 On March 13, 2003 , the City had filed a motion seeking to disqualif y Mr. Tho rnton from representing t he Taxpayers due to an alleged confli ct of int erest. The tri al court apparently f ound that

no confl ict exist ed and permitted Mr

. Thornt on to c onti nue hi s re prese ntation of the Taxpayer s. On March 22, 2004, the City f il ed anot her mot ion renewing its objecti on to Mr. T hornton’s representat ion of t he Taxpa yers in t he ins tant

litigat ion. A he aring was app arently set for Ju ne 7, 2 004 , to argu e the m otion befo re the tria l court, but su bsequent events made the need for a dec ision o n this mo tion m oot.

16 On February 18, 2004 , the Handleys fi led an amended notice of their int ent to take a v olunta ry non suit on the ir counterc laims due to a t ypographic al err or in t

heir pr ior not ice. -10- Co nv er se ly, the trial court held that the Taxpaye rs did have standing to contest the allegedly illegal businesstransactions occ urring betwee n Councilma

n Handle y a nd the City . Thus, th e trial c ourt grante d in part a

nd denied in part the

defenda nts’ motion s for summa

ry judgmen t. Next, the trial court issued a memorandum opinion addressing the Taxpay ers’ motions for summary judgmen t. 12 Alluding

to its previous finding that the Taxpay ers did not have sta

nding to contest the tran sfer of

land by the City to the Handleys, the tria

l court denied the Taxpay

ers’ moti ons. OnSeptember 19, 2003, the trial courtentere d an orde r incorp orating

the findin

gs from its memorandum

opinions. 13 On December 16, 2003, thetrial court entered an order setting the case for trial and granti ng the T axpay

ers thirt y ( 30) day

s to nam e the City

as a def endant in their civ il action. 14 OnJ anuary 16, 2 004, the T axpay ers file d an amen

ded compl aint addi

ng the Ci ty a s a defendant to their civil action. 15 Since the Taxpayers’ amended complaint contained essentially the same causes of

action and requests for relief relate d to the land transaction between the Handley s and the City that they previous ly

asserted, the Handleys, on February 17, 2004, filed a renewed motion for su mm ar y ju dg me nt . T ha t s am e d ay, th e H an dl eys filed a notice of their intent to take a voluntary nonsuit as to all of

their co untercl aims. 16 On March 5, 2004, the tri al court entered an order dismissing the Handley

s’ counterclaims without prejudice. On April 5, 2004, the trial court entered anorder, b ased upon the ag reemen t of th e parties, granting the Handley s’ renewed motion for summary judgme

nt to the extent the courthad already ruled on the land

transaction in its previous September

19, 2003, order. On May 27, 2004, the Taxpayers filed a notice of voluntary dismissal regarding their re

maining claims. That same day , the Taxpayers filed a second notice of appea

l to this Court. OnJune 2, 2004, the trial court entered an order dismissing the Taxpay ers’ remaining claims without prejudice. Onappeal, the Taxpaye

rs have presented

two issues for our review. At the outs et, we must place these issues in the proper context. The Taxpayers are, in essence , asking this Court to17 The App ellees ha ve pr esente d num erou s issues sim ilar in nature t o thos e rai sed bythe Appellants. However,

for reasons m ore fully explained b elow, we nee d not ad dress these ad ditional issues.

18 Ord inarily, “[i]n a civ il action, if a tim ely motion under the Tennessee Rules of Civil Procedure is fi led in the tri al cour t by any p arty . . . unde r Rule 59.0 4 to a lter or a men d the ju dgm ent[,] the time for app eal for a ll parties shall run from th e entr

y of t he order deny ing a ne w tri al or gr anti ng or denyi ng any ot her such motion. ” Tenn. R. App. P. 4(b) (2004). -11- determine whether

the trial court

erred in granting summary judgment to the Handley s and the other defenda nts on the Ta

xpayers’ cla

im conte sting the land tran saction between the City a nd Councilman Ha nd le y. Wh en co ns id er in g t hi s p ri ma ry i ss ue , t he Ta xp aye rs ask this Court to entertain the following issues: I. Whether

the taxpayers of a municipa lity have standing to c

hallenge an illegal convey ance of real property

from a municipality to an ele cted official of that municipality ; and II. Whether

anillega l convey ance of real pr operty from a municipality to an ele cted official of that municipality is void under the doctrine of ultra vires

. 17 For the reasons set forth more fully herein, we vacate the

trial cou rt’s orde r gran ting the Appellee s’ partial summary judg

ment and remand this case to the trial court. II. J URIS DICTI ON T O E NTERTAI N C ERTAI N I SSUES This Court is re quired to

consid er wheth er or not we have subject matter jurisdiction over an appe al reg ardless

of whether a par

ty presented such issue for our review. SeeTenn. R. A

pp. P. 13(b) (2004); Martin v. Wash master Auto Ctr., Inc. , No. 01-A-01-9305-CV-00224, 1993 Tenn. App. LEXIS 464, at *3 (Tenn. Ct . App. July 2, 1993); Huntington Nat’l Bank v. Hooker , 840 S.W.2d 916, 922 (Tenn. Ct. App. 1991). On appeal, the Handleys assert that this Court is without jurisdiction to enterta inthe appeal filed by

the Taxpayers. Specif

ically, the Han

dle ys assert that, since the Taxpayerswere not

parties t o the City ’s action

against them, the Taxpayers could not file a motion to alter or amend the

court’s o rder dis miss ing that case. Therefore, the Handleys ar

gue that the Taxpay ers’ motion, filed on October 24, 2002, did not toll the running of the thirty (30)day period for filing a n appea l. 18 SeeTenn. R. App. P. 4(a) (200 4). In turn, they contend that, even if the Taxpayers could file a

n appeal of the order dismissing the City ’s action against them, the time for filing an appeal began to run from Oc tober 9, 2002, the date the trial court entered the order. Since t he Taxpay

ers did not file the ir first notice of appeal u ntil Febr uary 21, 2003, well beyond th e allowed thirty (30) day

period, the Handley s argue that this Court has no jurisdiction to review the lawsuit fi le d b y th e C it y. SeeTenn. R. App. P. 2 (2 004) (not ing that the Court i s without a

uthority to extend the time for

filing a notice of appeal s et forth i

nTenn. R. App. P. 4( a)); Am. Steinwinter Investor Group v. Am. Steinwinter Inc. , 964 S.W.2d 569, 571 (Tenn. Ct. App. 1997) (“The 30-day rule for notices of appeal is mandatory and jurisdictional and may be not waived . . . .”). In turn, the Taxpayersargue that

their motion to alter or amend tolled the running of thethirty (30) day period.-12-

Furthermore, the Taxpayers conte nd th at , e ve n i f t he fi rs t n ot ic e o f a pp ea l i s n ot ti me ly, their second notice of appeal permits them to raise all issues related to this consolidated action. It is appar ent to this C ourt that t

he parti es lost

sight of the exact nature of these actions during the cours e of th e proce edings below. On September 4, 2001, the Taxpay ers filed a motion

with the trial court en

titled “Motion to Join

in Lawsuit” in which they sought to join the City ’s lawsui t again st the Handley

s and othe r defen dants “pu rsuant to Rule 20.01.” On September 17, 2001, Mr. Thornton filed a complain t in the tri al court

on behalf of the Ta xpayers. On January 17, 2002, the trial cour t entered an order entitled “ Order on Mo tion to Amen d Complaint and Second Motion to Amend Complaint”

in which the trial c ourt state d as follows: Came the Plaintiff, City of New Johnsonville . . . and moved the Court for pe rm is si on to am en d i ts Co mp la in t t o a dd an ad di ti on al pa rt y, averments and pray

ers for relief. The Co urt . . . is of the opinion that said motion should be granted. Plaintiff

has sixty (60) days to file a c onsolidated complaint with all amendments and pray ers for relief in this cause. (emphas is added). Thereafter, on January 24, 2002, Mr. Thorn ton filed a complaint entitled “Amended and Consolidated Complaint” which provided:

Come now the Plaintiffs , pursuant to Court Order consolidating the a ctions filed by P

laintiffs , and file this Amended and Consolidated Complaintrestating the allegations of the Plaintiff s in one action , consolidated

under Docket Number: CH-01-179. (emphasis added). Nowhere in the voluminous record filed in this case do we find an order from thetrial court either joining or consolidatingthe actio ns filed in this case. On appeal, the Handley s refer to the trial court’s Janu ar y 17, 2002, order in their briefs as “an order c onsolidating the City Action and the Indiv iduals’ Action for discovery and trial.” The trial court’s January 17, 2002, order does nothing of the sort. To the contrary , the order, by its express

langua ge, onl y a ddresse d the City ’s motion to amend its c omplaint. Whether these cases have been joined or consolidated is a ma tter we do not

take lightly due to the effect the character ization of a lawsuit has on our appellate review. The Taxpay ers’ motion asked for permission to join the lawsuit already filed by the City . Permissive joinder of parties is provided for in Rule

20.01 of the Tenne ssee Rule s of Civil Pr ocedure , which sta

tes: All persons may join in one action as plaintiffs if they asser t any rig ht to re li ef jo in tl y, severally, or

in the alternative in respect of or arising outof the same transaction, occurrence , or series of transactions or19 See Tenn. R. App . P. 3(a) (2004); Tenn. R. Civ. P. 54.02 (20 04). -13- occurrences and if an

y qu estion of law or fa ct common

to all thes e persons will arise in the action . . . . Tenn. R. Civ. P. 20.01 (2004); see also Fred’s Fin. Co. v. Fred’s of Dyersburg, Inc. , 741 S.W.2d 903, 907-09 (T enn. Ct. Ap p. 1987). Co nsolidation of two sepa rate tri als is prov

ided for in Rule 42.01 of the Tenne ssee Rule s of Civil Pr ocedure , and it sta

tes: Whenactions involving a common question of law or fact a re pendingbefore a court, the court may order all the actions consolidated

or heard jointly, and

may make such

orders concerning procee dings therein as may tend to av oi d u nn ec es sa ry c os ts or de la y. Tenn. R. Civ. P. 42.01 (2004).

The inter play betwee n these two proced

ural rule s can be e

xplained in

the follow

ing ter ms: To understa

nd the re quireme

nts for and the consequences of permissive joinder o f partie s under Ru le 20.01, it is use ful to distingu ish joinder o f partie s from consolidation of acti o ns unde r Rule 42.01. Plaintiffs and defendants pr operl y jo ined unde r Rule 20.01 are all parties to the same civil action , even when the claims by or against them are sever al, as opposed to joint. Consolidation of separa te actions under

Rule 42.01, on the other hand, does not c reate one actio n o r make th ose who are parties in o ne suit par

ties in another. Consolidation simply allows a single trial of common issues an d p er mi ts jo in t d is co ve ry f or pu rp os es of

ju di ci al ec on om y. Several consequences may follow from the distinction between joinder and cons olidati on. When parties are joined in an ac tion, they and t

he claims by or again

st them mu

st be take n in t o account for a number of important purposes suc h as det ermining whether

. . . a judgment is a final appealable order 19

. . . . When actions are conso lidated, o n the othe r hand, a pa rty or a cl

aim in only one of the

actions ma

y not be taken into a ccount fo r these purposes i

n the othe r consolid

ated acti ons. The prereq

uisites for join d er and consolidation also differ. Consolidation is proper when there are “ac tions involving a common questionof law or fact pending before a court.” For joinder

of parties inone acti on, on the

other ha nd, the ad

ditional “ tr ansact ion or occurrence”

test must be satisfied. The cl aims by or ag ainst the parties must be “in respect of or arisingout of the same transaction, occurrence, or

s eries of transactions or occurrenc es.” When,20 “Consolidation does not, however, create one lawsui t where there were two. It s imply allows a sin gle t rial and permits joint

discover

y.” R OBERT B ANKS , J R . & J UNE F. E NTMAN , T ENNESSEE C IVIL P ROCEDURE § 6-12(b) (1999 ). -14- ther efo re, multiple claims that will entail decisions on common issues of law or fact cannot be joined because of limitations on joinder, consolidationma y prov ide a beneficial alternative for ac hieving ju di ci al ec on om y. R OBER T B ANKS , J R . & J UNE F. E NTMAN , T ENNESSEE C IVIL P ROCEDURE § 6-5(b) (1999) (emphasis added). The complaint filed

by Mr. Thornton on January 24, 2002, rather confusingly

refers to the actions as consol i d ated, yet it states that the a ctions have become “one action, consolidated under Docket Number: CH-01-179.” 20 Howeve r, it is app arent after re

viewing the rec ord, that

despite the lack of a definitive order, the trial court treated these two lawsuits as consolidated, not joined. The City’s lawsuit was originally docketed as “Civil Action No. CH-01- 179.” The Taxp ayers’ action was origina lly docke ted as “Civil Action No. CH-01-211.” When the Handley s responded to the Taxpay ers’ motions for

summary judgmen t, their response indicated that it addressed “Civil Action No. CH-01-211.” When

the City and the H andley

s moved to d

ismiss their re spective

claims against each other, the parties’ motions both reflected that they were addressing a ca se docketed as “Civil ActionNo. CH-01-179.” The trial court’s order dismissing the City ’s lawsuit provides that the order is addressing “Civil Action No. CH-01-179.” When Union Planters filed its motion for summary judgment against the Taxpay

ers, it listed “Civil Action No. CH-01-211,” but the “211" was marked throu ghand “179" written above it. When the trial court issued the order on the Taxpayers’ motion to alter or

amend the

court’s previous order di smissing t

he City ’s lawsui

t, the ord er listed both docket numbers, called the cases “consolidated,” and ref erred t o them as s eparat

e action s. The trial court’s orders addressing the motions for summary judgment filed between the Taxpay ers, the21 The trial cou rt ultimately a llowed the T axp ayers to name the Cit y as a defe nda nt in their law suit.

Interes ti ngly, a determination that these cases had been joined would necessarily mean that the Cit

y would be both a plaintiff and a defendan t in

the s ame case. -15- Handley s, and the other de fendant s all ref er to the action a s “Civil

Action No. CH-01-211.” The trial court’s final order dismissing the Taxpayers’ remaining claims refer s to the case as “Civil Action No. CH-01-211.” 21

Additiona

lly, this Court r

eceive d a conso lidated r

ecord, a nd the par ties have briefe d these actions as if they

were c onsolidat

ed. Acc ordingl

y, we willregard

the two cases as consolidated by the trial court. See Local 2173 of the A m. Fed’n of State, County, and Mun. Employees v. McWherter, No. 87-34-II , 1987 Tenn. App. LEXI S 2726, at *1 (Tenn. Ct. App. June 5, 1987). Thus, the City’s action and the Taxpay ers’ action remained distinct and separate law suits throughout the procee dings below. Patton v. Aerojet Ordinance Co. , 765 F.2d 604, 606 (6th Cir. 1985); Masson

v. Anderson , 62 Tenn. (3 Baxt.) 290, 298-99 (Tenn. 1873); Chitwood v. Myers , 443 S.W.2d, 830-31 (Tenn. Ct. App. 1969).

Having characterized these lawsuits, we first address the e ffect of the trial court’s orde r dismissing the lawsu

it betwee n the Cit y and the Ha

ndleys. “A conse

nt decree is a contract made final and binding upon the parties by the approval of the court.” City of She lbyville v. State e x rel. Bedford County , 415 S .W.2 d 139, 144 (T enn. 1 967) ( citi ng Boyce v. Stanton , 83 Tenn. 346 (Tenn. 1885)). “Consent

decree s, compromise and s ettlemen t agre ements, and agreed orders a re favored by the courts and represent the achieveme nt of an amicable result to pending litigation.” In re Esta te of Williams , No. M2000-02434-COA-R3-CV, 2003 Tenn. App. LEXI S 313, at *33 (Tenn. Ct. App.-16-

Apr. 28, 2003). “In the abse nce of du ress, fr aud, mista

ke or col lusion a c onsent jud gment is valid and binding, as such, as betweenthe partie s theretoand their p rivies. ” 49 C.J.S. Judgmen ts § 187 (1997) (emphasis added). Absent the existenceof one of the limited exceptions, a consent order is notappealable by

the parties entering int o the agreement. See City o f Shelbyville , 415 S.W.2d at 144; Bacardi v

. Tenn. Bd. of Registr

ation in Podiatry , 124 S.W.3d 5 53, 562 (T enn. Ct. App. 2003); Bickers v. Lake County Bd. of Educ. , No. 02A01-9307-CV-00163, 1994 Tenn. App. LEXI S 7, at*3- 4 (Tenn. Ct. App. Jan. 13, 1994). Thus, when the City and the Hand ley s agre ed to settl e their c ase and the trial court subsequently e ntered an order dismissing the C ity’ s and the H andley s’ claims against each other, neither par ty could appea

l the trial court’s order.

Since the Taxpay ers’ action rema

ined a se parate and distinct lawsui

t, the Taxpa

ye rs could notfile a motion to alter or amend or to set aside the trial court’sorder di smissing t he suit between the City and the H andley

s. “I t is funda mental tha

t ‘ [a] person who is not a party of re cord to a lawsuit has no standing therein which enables him or her to take pa rt in the proceedings.’” In r e Estate of Reed, No. W2003-00210-COA-R3-CV, 2004 Tenn. App. LE XIS 424, at *5 (Tenn. Ct. App. July 1, 2004) ( citations

omitted); see also47 Am. Jur. 2d Judgmen ts § 757 (2004) ( “The g eneral rule is that strangers to the record, unless authorized by statute, ordinarily have

no standing on

whichto basean application to vacate a judgment.” ). M oreover, the Taxpay ers could not file an appeal contesting the trial court’s order regarding the

lawsuit be

tween the City and the H andley

s. “A par ty to on e a ct io n m ay not appeal f rom a judg

ment or or

der in a s econd a

ction with

which the

first is consolidated

for trial.” 4 C.J.S. Appeal and Error § 157 (1993). Accordingly, the Taxpayers have

no standing to raise any

issues in the instant appeal related to the trial court’s dispos ition of the-17-

City’s su it ag ai ns t t he Ha nd le ys and other defendants. Likewise, this Court is without jurisdiction to enter tain any issues ra ised by the Appe llees concernin

g the City ’s action

against the Hand

ley s.

We also note that, since the Taxpayers voluntarily nonsuited their claim regarding the allege dly illega l business

transactions betw een the C ity a nd Council

man Hand

le y , we cannot enterta inany issues raised by

the parties regar

ding tha t claim in this app eal. A pla

intiff is g eneral ly permitted to take a voluntary nonsuit of his case. SeeTenn. R. Civ. P. 41.01 (2004). Upon doing so, however, there is no longer any existing controversy r

egarding those claims to which the plaintiff voluntar ily di smissed. A ccordingly , this Court cannot entertain an appeal of issues related to the allege dly illega l business

transacti ons betwe en the City and Councilman Handley which the Taxpayersvoluntarily dismissed. See Payne v . Savell, No . 03A01-9708-CV-00352, 1998 Tenn. App. LEXI S 81, at *5–6 (Tenn. Ct. App. Feb. 5, 1998) (noting that, when a party takes a voluntary nonsuit, the parties cannot appeal theresulting order of dismissal without prejudic e); Bickers v. Lake County Bd. of Educ ., No. 02A01-9307-CV-00163, 1994 Tenn. App. LEXI S 7, at *4 (Tenn. Ct. App. Jan. 13, 1994)(“A par

ty is estopped or waives his righ t to appea l when jud

gment is entere d at his request.”); Oliver v. Hydro- Vac Ser vices, Inc. , 873 S.W.2d 694, 696 (Tenn. Ct. App. 1993) (concludingthat a party is ordinar ily not ag grieved when no judgment is render ed against him); Martin v. Washmaster

Auto Ctr., Inc. , No. 01-A-01-9305-CV-00224, 1993 Tenn. App. LEXI S 464, at *6 (Tenn. Ct. App. July 2, 19 93) (“No present controve rsy exists afte

r the pla intiff ta kes a nonsuit.”); Huggins v

. Nichols , 440 S.W.2d 6 18, 620 ( Tenn. Ct. App. 1968) (“Although there are

some exceptions to the rule, the general rule is that a plaintiff or defe ndant cannot appeal or-18-

prosecute a writ of error from or to a judgment, orde r, or decree in his own favor, since he is not aggrieved there

by.”).

III. S UMMARY J UDGM ENT ON THE T AXPAYERS ’ C LAIM C HALLENGING THE L AND T RANSACTI ON

Havingdetermined that the Taxpaye rs’ suit remained separate from the City ’s action a gainst CouncilmanHandley

, we now a

ddress t he correctness of the trial court’s decision to g rant partial summary judgmen t to the App ellees by r

uling tha t “plainti ffs have

no standin

g to chall enge the transfer of the 32.657 acres to Defe ndant Handley a

nd this part of the action must be dismissed.”

A. Standard of Review

“Summary

judgments are proper

in virtual ly a

ny c ivil case

that can be resol ved on the

basis of legal issues alone.” Summers v. Cheroke e Children& Family Services, Inc. , 112 S.W.3d 486, 507 (Tenn. Ct. App. 2002). “A party is e ntitled to summary judgment wher e he or she establishes that there is no genuine issue as to any material fact an

d that a ju dgment may

be rende red as a matter of law.” Stovall v. Clarke , 113 S .W.3 d 715, 721 (T enn. 2 003) ( citi ng Penley v. Honda Motor Co. , 31 S.W.3d 181, 183 ( Tenn. 200 0)); see also Tenn. R. Civ. P. 56.04 (20 03). The party moving for summary judgment has the burden of proving that the motion satisfies these requirements. Bain v. Well s , 936 S.W.2d 618, 6 22 (Te nn. 19 97) (ci ting Downen v. Allstate Ins. Co. , 811 S.W.2d 523, 524-19-

(Tenn. 1991)). Once the moving party has established that there is no gen uine issue of mater ial fact , the burden shifts to the non-moving party to demonst

rate, by affida vits or othe

r discove ry materia ls, that there is a genu ine issue of mater ial fact to be resolved by

trial of the matter. Byrd v. H all , 847 S.W.2d 208, 211 (Tenn. 1993) (citations omitted) . “I n review ing a mot ion for su mmary judgmen t, the Court must examine the evi den ce and all reasonable inferenc es from the evidence in the light most favorable to the non-moving party .” Stovall , 113 S.W.3d at 721 (citi ng Web ber v. Sta te Farm Mut. Auto Ins. Co. , 49 S.W.3d 2 65, 269 (Tenn. 2001)). The trial court should grant a motion for summary judgmen t “only when both

the facts and the

conclusi ons to be dr

awn from the facts permit

a reasonable person to reach only one conclusion.” Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995) (citi ng Byrd

, 847 S.W.2d at 210-11)).

“Summary

judgments enjoy no pr

esumption of correct

ness on appeal.” Summers , 112 S.W.3d at 508. “Our

task on appeal is to review the record to deter mine whet

her the r equirements for granting summary

judgment have been met.” Church v. Perales , 39 S.W.3d 14 9, 157 (Te nn. Ct. App. 2000). “ This cour

t must use the same

standard [as the trial court] in reviewing a trial court’s judgment granting summary

judgment.” Prince v. Saint Thomas Hosp. , 945 S.W.2d 731, 733 (Tenn. Ct. App. 19 96) (ci ting Clifton v. Bass , 908 S.W.2d 2 05, 208 (T enn. Ct. Ap p. 1995)) . Sin ce ou r inquiry on appeal involves pure ly questions of law, Carvell, 900 S.W.2d at 26, “the standard for reviewing a grant of summary

jud gment is de novo without any presumption that the trial court’s conclusions were correct.” Webber , 49 S.W.3d a t 269; see also Kelley , 133 S.W

. 3d at 591; Bain , 936 S.W.2d at 622.-20- B. Taxpaye r Standing

“Acitizen’s

standing to sue a g overnme

ntal entit y is a threshold issue that should be resolved before address ing the merits of the case.” Ragsdale v. City of M

emphis , 70 S.W.3d 56, 62 (Tenn. Ct. App. 2001). As our supreme court previously stated in a similar case:

The in itial question is whe ther our courts wi ll entert

ain a taxpayer suit conte sting the

legali ty o f pay ments made

to county offic ials from public funds; that is, whether a taxpayer/citizen h a s standing to litiga te the issu

e prese nted in the

complain t. It is not at thi s point appropriate to examine the merits of the ultimate question. The Court

should determine whether a

party may litigate the leg ality

of a public officer’s pay

ments to himself, without first deciding whether

tho se pay

ments are , in fact

and law, illega

l. Becau se citizen suits do burden the conduct of pub lic aff airs, a defendant entity or offic er should

not be obli ged to defend on the merits if he is entitled

to a dismiss al for la

ck of sta nding. N or should the court critique the conduct of public off icials if t he cause is not justiciable.-21-

Cobb v . Shelby County Bd. of Commissi oners , 771 S.W.2d 1 24, 125 (T enn. 1989 ). Standin g is a judge-made doctrine used by the courts of thi s s tate “‘to refuse to determine the merits of a legal controve rsy irrespective of its correctness where the party adva

nc ing it is no t proper

ly s ituated to prosecu te the action.’” Phillips v. County of Anderson , No. E2000-01204-COA-R3-CV, 2001 Tenn. App. LEXI S 30 8, at *9 (T enn. C t. App . Apr. 30, 20 01) (q uoti ng Knierim v. Leatherwood , 542 S.W.2d 806, 808 (Tenn. 1976)). Accordingly , we will begin by

addressing the Taxpay

ers’ first issue — whethe

r they have sta nding to c halleng e the con

vey ance of real pr operty from the m

unicipal ity to an el ec te d o ff

ic ia l o f t ha t m un ic ip al it y.

“The rule in Tennessee is well established that citizens and taxpay ers are without standing to maintain a

lawsuit to

restrai nor direct governmental action unless the

y f irst alle ge and

establish that they will suffer some spe cial injury not common to citizens and taxpay ers generally .” LaFollette Med. Ctr. v. City of La

Follette , 115 S.W.3d 500, 503 (Tenn. Ct. App. 2003) (citi ng Patton v. C ity of Chattanooga , 65 S.W. 414, 420–21 (T enn. 1901 )); see also Badgett v . Rogers , 436 S.W.2d 292, 294 (Tenn. 1 968); Reams v. Bd. of Mayor & Aldermanof McMinn ville , 291 S.W. 1067, 1068 (Tenn. 1927). As a polic

y ju stificat

io n for this g eneral rule, the Tennessee Supreme Court ha s stated as follows:

Onthe one hand, it is undeniably the right of a taxpayer to know that his taxes are expended properly and are no t unl awfully diverte d or misused. On the other

han d, the courts have long recog nized the necessi ty of allowing mun icipa l officials to perform their duties-22- withoutinterference from freque nt and possibly frivolous litigation and the inexpedience of putting municipal officers at hazard to defe nd th eir acts whe never a ny member of

the commu

nity sees fit t o ma k e the assault, whether for honorable motives or not. The courts h ave beenc ommensurately re luctant to usurp or supersede the discretion of municipal authoriti es to determ ine wh ich mu nicip al und ertaki ngs are necessary

and appropriate.

Badgett, 436 S.W.2d a

t 293–94; see also Parks v. Alexander , 608 S.W.2d 881, 885 (Tenn. Ct. App. 1980) (“The g eneral ly a

cknowle dged pu

rpose of this requ irement o f specia

l damag e or priv ate harm to the individual rests in t he publicpolicy of protecting public corporations from a profusion of suits.”).

However, the gen eral rule regarding taxpayer standing

is not without exception. “[T]he courtshave re cognize d an exception to the general rule where it is asser ted that the assessment or levy of a tax is illegal or

that public funds are misused or unlawfully diverted from stated purposes.” Badgett, 436 S.W.2d at 294; see also La Follette Med. Ctr. , 115 S.W.3d a t 504. The

Taxpay ers in the instant case, being unable to establish any specific injury not sustained by the citize ns of the Ci

ty ingener al, rely on this exce

ption to as sert they

poss ess standing to contest the land transaction between th e C it y and Counc ilman Handley. Specific ally, the Taxpay ers seek to establish that the land transaction at issue constituted an illegal use of “public funds.”-23-

Inorder for a taxpayer

to have standing to challenge the legality of the expenditure of public funds, the follow

ing ele ments must

be found to exist: (1) the plaintiff/taxpayershave taxpa ye r status; (2) the taxpayers alleg e a

specific illega lity in the expenditure of public funds; and (3) the taxpayers have made a pr

ior dema nd on the governme

ntal entit y a sking it to

correct the alleged illegality

. Cobb

v. Shelby Co unty Bd. o

f Commis

sioners , 771 S .W.2d 124, 1 26 (Tenn . 1989); Ragsdale v. City of Memphis , 70 S.W.3d 56, 62 (Tenn. Ct. App. 2001).

The trial cou

rt used th is three- prong te st inthis case to evaluate whether the Taxpay ers had standing to challenge the land transaction. Reg arding the first element, the trial court ruled that “there is no material dispute of fact that some of the plaintiffs are taxpay ers of the City of N ew Johnsonville.” Turning to the third element, the trial court rul ed t hat “any pr ior demand by the taxpayersto corre ct the all e ge d i ll eg al it y would have been a futile gesture. This being the case, failure to make a prior demand is excused.” The largest area of contentionbetween the parties on appeal is the sec ond eleme nt requir ed in orde

r for the Taxpay ers to ha ve standi ng to pursue th ei r claim against the Appe llees ( i.e. , whether they allege a specific illega

lity in the expenditu re of “public funds”). The trial court ruled that, as a matter of law, “[l]and, especially land g iven to the ci ty, is not‘public funds.’” Accordingly , the trial court held that, since the Taxpay ers failed to satisfy the second element of taxpay er standing, summary

judgment was appropriate as to this claim.

The Taxpayers ar

gue th at this rul ing con stitutes e rror be cause “

the ordinary

and plain meaningof public funds includes property held by a municipality

for the benefit of its citizens.” Co nv er se ly, the Appellees contend that the term

“public funds” must mean the diversion of funds-24-

inthe form of money de

rived from taxation in order for taxpaye rs to have standing. Since the real propert y at iss ue was no t acquired with tax revenue ( i.e. , it was a g ift), the Appellee s argue

that a subsequent disposition of the land cannot be considered a disposition of “public funds.”

Our independent review of

the law applicable to the present case re veals that the trial court applied an incorrect legal standard w hen granti ng par tial summa

ry judgmen t to the Appe llees in th

is

case. Stated

differently, to a scertain if the Taxpayers in the instant case have standing, we need not determine if land ow

ned by a municip ality

constitutes “public funds” as the parties s ugge st in their briefs.

The T axpayers alleg ed in their complaint that the land transaction between the City and CouncilmanHandley violated pr ovisions in the City Charter as well as section 12-4- 101(a)(1) of the Tenness ee Code. Section 12 -4-101( a)(1) provides, in relev ant part , as follows:

It is unlawful for any

officer , com mittee member, director, or other person whose dut

y it is to vote

for, let o ut, overl ook, or in

any manner to superintend any work or a ny contract in which any

municipal corporation, county

, state, development district, utility district , huma n

resource agency , or other political subdivision creat ed by statute shall

or may be intere sted, to be di r ectly interest ed in any such con tract. “Directly interested” means any

contract with the officia

l persona lly

or with any business in which the offic ial is the s ole proprietor, a-25- partner, or the perso n havi ng t he con trolling interest. “Controlling interest ” includes the individ

ual with the ownership or control of the large st number of outstanding shares owned by any single individual or corporation. . . .

Tenn. Code Ann. § 12-4-1 01(a )(1) (2003). The legislature also set for th the penalty for violating secti on 12- 4-101 (a)(1) of the Tennes see Co de, st ating:

Sh oul d any person, a

cting as such officer, committee member, director, or other person referred to in § 12-4-101, be or become directly or unlawfully indirectly interested in any such contract, such pe rson sha ll forfeit all pay a nd compensation therefor. Such officer shallbe dismissed from such office the officer then occ upies, and be ineligib le for the

same or a

similar po sition for

ten (10)ye ars.

Tenn. Code Ann. § 12-4-102 (2003).

In State ex rel. Wallen v. Miller, 304 S.W.2d 654, 656 (Tenn. 1957), our supreme court noted that the leg islature

did not include within section 12-4-101 and section 12-4-102 of the Tennessee Code a procedure for

enforc ing thes e provisi ons. Acc ordingl y, t he supre me court sta

ted that “ it is fundamental that

for the enforcement of a statute of this kind where there is no statute prescribing the procedure that

the proceedings should beprosecuted according to the pra ctice under the common-26-

law[. ]” Miller , 304 S.W. 2d at 6 57 (ci ting Olsen v. Sharpe , 235 S.W.2d 11 (Tenn. 1950)). In setting forth the procedure to apply

when a violation of section 12-4-101 of the Te nnessee Code is alleged, the court stated:

Under such circumstances it seems to us that thi s statemen t is applicable:

“Publicwrongs or neglect or bre ach of public d uty cannot be redressed at a suit in the name of an individual or individ

uals whos e interest in the right asserted does not di ffer fr

om that of t

he public ge ne ra ll y, or who suf

fers inju ry in common w

ith t he public generally , even, it seems, thou gh his loss be greater in degre e, unless such right of action is given by statute. In cases of pure ly public conc ern and i n actions for wr ongs agains t the public , whethe r actua lly committed

or only appre

hended, the remedy, whe

ther civilor criminal, is as a general rule by a prosecution instituted by the sta te in its politica l charact er, or by

some officer authorized by law to act in its behalf, or by som e of those

local age

ncies cr eated by the sta t e-27- for the arrangement

of such of the local affairs of the community as may be intrusted to them by law .” “In the enforc ement

of matters of

public inte

rest it is gene r ally recog nized that the attorney general appearing

as a public

officer is

a pro p er party t

o maintain litigation .” 39 Am.Jur., p. 863, Sec. 11.

In a procee ding of t

his kind it is

well said that:

“In the absence of constitutional or statutory regula tio n s providing otherwise, quo warrant o procee dings are the only proper remedy i n c ases in which they

areavailable .” 74 C.J.S. Quo W arranto , sec. 4, p. 179; State ex

rel. Brya nt v. Max

well , 189 Tenn. 187, 224 S.W.2d 833.22 Qu o w arra nto is a comm on law rem edy charac terized in the following terms: “In its broa dest se nse, quo warrant o is a writ of inquiry as to the warrant for doing the act s of

which complaint is made. It is t he remedy or proceed ing by which t he sovereign or state d eterm ines the le gality of a c laim whi ch a par ty ass ert s t he us e or exercise of an office or f ranchise and ousts t

he holder from its enjoyment, if t he claim is not we ll found ed, o r if the rig ht t o enjoy

the priv il ege ha s beenfor fei ted or lost .” 44 Am. Jur. , p. 88, Sec . 2. Miller , 304 S. W.2d at 658.

23 “Art icl e VII, sect ion 1, of the [Te nnesse e] Co nstitution d eclare s that co unty office rs . . . shall be re mov able from off ice for malf

easan ce or n egle ct of

duty and cl othes the leg isl atur e wit h power to pr escr ibe the mode of procedure throughwhich r emoval may be af fect ed.” State ex rel. Co mp lainan t v. Ward , 43 S.W .2d 217, 219 (Tenn. 1931 ). We are cognizant

of th e fact

that the l egisl ature has pro vided for a suit b y private citizens to cha llenge the legality of a pu blic officials actions. Section 6-54 -107 o f the Tenne ssee Co de pro vides, in relevant part, as follows:

(a) No person ho lding offi ce under any muni cip al corp orat ionsha ll , du ri ng t he t ime (con tinued ...) -28- Id

. at 657–58 (emphasis added). “Here a c ivil remedy, that of quo warrant o , 22 is the only

one that is available

in view of the fact the legislators did not see fit to provide any additional procedure for their enforcement.” Id . at 658 (e mphasis added); see also State ex rel. Abernathy v. Anthony , 335 S.W.2d 832, 833 (Tenn. 1960).

The legislature has chosen to codify the common law remedy

of quo warranto in section29- 35-101 et seq . of the Tennessee Code. See City of Fairview v

. Spears , 359 S.W.2d 824, 825 (Tenn. 1962) (applying

the statutory codifica

tion of the quo warranto to a citize n’s priva te suit ag ainst a municipality); Miller , 304 S.W.2d at 658. “Actions based upon violations of T.C.A. § 12-4-101 et seq . are governed by

the procedure set out in T.C.A. § 29-35-101 et seq . . . .” Town of Smyrna ex rel. Odom v. Ridley , 730 S. W. 2d 318, 321 (Tenn. 1987). Accordingly, since the Taxpayers seek relief under section 12-4- 10 1 of the Te nnessee Code, the ir lawsui

t must be evaluated

for its compliance with section 29-35-101 et seq . of the Tennessee Code. 2323 (.. .continu ed) forwhi ch su ch per son was ele cted o r app ointed , be ca pab le of contr acti ng wit h such corpora ti on for the performance of any work which i s t o be paid f

or out of t he treasury . Nor shall suc h pers on be capable of holding or havin g any ot her dir ect interest in such a contra ct. “Direct interest” mea ns any contract with any bu siness in which th e official is the sole p rop rietor, a partne r, o r th e person having the controlling intere st . “ Co ntrolli ng interest ” includes the i ndividual wit h the own ership or co ntrol o f the large st numb er of o utstand ing shar es ow ned by a ny single i ndividual or corporation. (b) No officer in a munic ipality shall b e indire ctly interest ed in a ny con tract to which the mu nicipa lity is a party un less the o fficer pu blic ly ac k nowledges s uch officer’s interest. “Indirectl y inter ested” means any contract i n which the officer is int erest ed but not directl y so, but i ncludes contracts where the officer is d irectly intereste d bu t is the sole su pplie r of go ods or serv ices in a m unicip ality. Tenn. Co de A nn. § 6-54- 107 (200 3) (emp hasis added ). Section 6-54 -108 o f the Tenne ssee Co de pro vides as follows:

Every officer o f such co rpo ration w ho sha ll unlawfull y be conc erned in making such contract , or who s hall unlawf ull y pay moneyupon the same to or for any person decl ared i ncapabl e in§ 6-54- 107, shall forf eit the amount

so paid; and such offi cer shall be jointly and severa lly liable to a n actio n for the same , which action may be p ro se cut

ed b y an y c itiz en o

f t he c or porat io n i n i ts name . Tenn. Cod e Ann. § 6-54-108 (20 03) (emphasis added).

One mem ber of this Court has explained the operation of the af orementioned statutes by stati ng: Standing is a j udge-made doctr ine whos e purpose is to deter mine whet

her a party sh ould be permi tt ed t o pursu e a claim

. Knier im v. Leathe rwood . 542 S.W.2d 806, 808 (Tenn. 1976) and Curve El ementar y School Parent and Teacher’s Organiz ati on v. Laud erdale C oun ty Scho ol Boa rd , 608 S.W.2d 855 , 858 (Te nn. Ct. Ap p. 19 80) . It calls upon the cour t to det ermine wh ether

the pl aint iff

has al leged such a per sona l stake in the outco me to warra nt its invoc ati on of th e co ur t's juri sdic ti on and to justify the exercise of the co urt’s powers o n i ts beha lf. See Bro wn ing- Fer ris Indust ries, Inc. v. Ci ty of

Oak Ridge , 644 S.W .2d 400, 402 (Tenn. Ct. App. 1982 ). In cases in volvin g statuto ry c auses of act ion, a party’ s st anding may depend upon requ ireme nts con tained in the stat ute creating the cause of acti on. If these requi rement s hav e been de fi ned b y statute, it is pro per fo r the co urts to concl ude that t

he General Ass embly has exerc ised its co nstitutiona l prero gative to determine the condi tions under whi ch a party will be permitt ed access to the co urts. Thu s, courts shoul d defer t o legi slat ive st anding cr iter ia cont ained i n stat utes creating new causes of action. Priva te citizens have rarel y been gi ven standing to bring suit t o challenge the acti ons o f pub lic officials. Metropolit an Government ex rel. Anderson v. Fulton , 701 S.W.2d 597 , 6 01 (Tenn. 19 85). Thus, in the absence of legi slati ve autho rity, a priva te citiz en must demonst rat e ei ther

a spec ial int eres t, st atus or wrong not com mon to the p ublic as a whole or that t he proper public official s have not taken remed ial action after being called up on to do so . See Benne tt v. Stutts , (con tinued ...) -29-23 (.. .continu ed) 521 S.W .2d 5 75, 5 76 ( Te nn. 19 75) ; Ba dge tt v. Rog ers , 222 Tenn. 374, 379, 436 S.W.2d 292 , 294 (19 68) ; Ba yless v. K nox Co unty , 199 Tenn. 268, 274, 286 S. W.2d 579, 582 (1955); and State ex re l. Vaughn v. Ki ng , 653 S.W .2d 727, 729 (Tenn. Ct. App. 198 2).

Cases involving municipal offici als’ s elf-dealing in public contracts are among the rare si tuations where t he General Ass embly has specif ical ly authori zed priva te citizens to chal leng e th e le gali ty of t he act ions of

pub lic officials. . . . It is reas ona ble to infer fro m the e nactm ent of this sta tute that the Ge neral A ssemb ly under stoodthat a contract involvi ng sel f- dealing by publi c off ici als is the very

type of case in w hich

the cooperation of

othe r publ ic of

fi cial s sh ould n ot be reaso nab ly expect ed. See Burns v. City o f Nas hville , 142 Tenn. 541, 574, 221 S.W. 828, 837 (1920). It i s als o reasonable to in fer t hat t he General Ass embly det ermined t hat con flicts of i nter est

of l ocal government al of fici als were so inim ical to the pub lic interest that privat e citizens should be permitted to take remedial act ion. Metro. Gov’t for Nashvi lle & Da vidso n C oun ty ex re l. Anderson v . Ful ton , No. 86- 221-II , 1986 Tenn. App. LEXIS 3615, at *25 –28 (Te nn. Ct. A pp. D ec. 31 , 198 6) (K och , J., con curring ). Our supreme court has also had occasi on to address an ins tance whe re a quo warrant o proceeding un der sect ion 12-4- 101 of the Te nnessee Code was joined with a citi zen’s private s uit brought pursuant to section 6-54-108 of the Tennessee Co de. Town of Smyrna ex rel. Odom v. Ridle y , 730 S.W .2d 318, 319 (Tenn. 1987 ). In dismi ssing t he cit izen ’s priv ate sui t, the court st ated: The city cannot recov er two forfeitures, one under T.C.A. § 12- 4-102 and the ot her under T.C .A. § 6-54 -108 . In either c ase, the m one y forfeited belo ngs to the city, but it i s not due a double recovery. We find no legislative intent for such a do uble recovery and forf

ei t ure in the ci rcumstances of thi s case. These statut es were int ended to provi de alte rnati ve remedies

. . . .The quo warrant o action by the State aff ords complete reli ef

in t his case and must t

ake pre cedence over t

he § 6-54-107 acti on by the city ; th e latter s hould have been dismis sed. The err or is s o plain t hat we noti ce i t now and di smis s t he compl aint ins ofar as i t s eeks to j oin t

he “a cti on of deb t” under

T.C.A. , § 6- 54-107 et seq . wit h the quo warrant

o unde r T.C .A., § 12-4- 101 et seq . Ridley , 730 S.W .2d at 322 (emphasis added ). Th e T axp ayers in the instant ca se did not file a cl aim u nder s ecti on 6-54- 108 of th e Tennessee Code. Theref ore, we ne ed not eval uate whet her th e Taxpayers l awsuit is i n actual ity

a sui t under sect ion 6-54-108 of t

he Tennessee Code. Since the T axp ayers e xpre ssly stated in t heir complaint that

they are all eging a viol ati on of s ecti on 12-4- 101 of th e Tennessee Code, we are onl y concerne d with thei r abil ity to pursu e a clai m under that stat ute. -30- Section 29 -35-101 o f the Ten nessee C ode provides, in r elevant part, as follows: Anaction lie s in the name of the state against t he person or corpora tion offe nding, in the follow

ing cas es:24 Th e statuto ry schem e also s ets forth the pro ced ure for filing the suit on beha lf of a pr ivate individual, Tenn. Co de Ann. § 29-3 5-110 (200 3), the proper venue for fi ling t he suit, Tenn. Cod e Ann. § 29-35-111 (2003), and the content of the complaint, Tenn. Cod e Ann. § 29-35-112 (2003). Even when a suit is bro ught o n beh alf of private citizens, “it must be i n the name of the Attorne y General. ” Sta te ex r el. Wall en v. Mill

er , 304 S.W .2d 654, 659 (Tenn. 1957 ). The dist rict att orney gener al, at his dis cret ion, may di smis s t he su it shoul d he det ermi ne t hat it is imprope rly

ins ti tut ed. Id

. “[I]f the distr ict att orney general has the r ight t o dismiss the sui t at any s tage when it appe ars to h im that the suit is impr ope rly bro ught, he would have th e right to refuse to bring it in the first place , if he thought it was not in the interest of the public t o do so.” State v. Parker , 315 S.W .2d 3 96, 3 97 ( Te nn. 19 58)

. -31- . . . . (2) Whenever any

public officer has done, or suffe red to be done, any act which works a forfeiture of that off icer’s office[.]

Tenn. Code An n . § 29-35-101 (2003) (emphasis added). Pursuant to section 12-4-102 of the Tennessee Code, a pu

blic offi c er found

to have violated section 12-4-101 of the Tennessee Code

“ shall be dismissed from such office the officer then occupies.” Tenn. Code Ann. § 12-4-102 (2003) (emphas is added) . Moreove r, the le gislatu

re has expressly

provided as follow s: The suit is brought bythe attorn ey gene ral fo r t he di st ri ct or co un ty, when directed so to do by the

general assembly, or by the governor and at torne y general of

the st ate con curri ng.

Tenn. Code Ann. § 29-35-109 (2003) (emphasis added). 24 At no point during the proceedings below did the Taxpayers see

k to comply with section 29-35-101 et seq . of the Tennessee Code by having the district a

ttorney gener al prose cute the

lawsuit on

their behalf. Howeve

r, this omission does not

en d o ur in qu ir y.-32-

Our suprem e court has allowed for a limited exception to the requirement that suits be inst itut ed by the d istr ict at torne y general, s tati ng:

It is the sett

led law in this state tha

t private citizens, as such, cannot maintain a

n action c omplaining

of the wr ongful a cts of public officia ls unless suc

h private citizens aver special interest or a special injury not commo n to the public generally

. Patton v. City of Chattanooga , 108 Tenn. 197, 65 S.W. 414 (1901); Skelton v . Barnett , 190 Tenn. 70, 227 S.W.2d 77 4 (1950); Badgett v. Broome , 219 Tenn. 264, 409 S.W.2d 354 (1966).

. . . . If th e Di strict Att

orney Genera l, in matte rs such a s this, shou

ld act arbitra rily or capr iciously or should b e guilty

of palpable abuse of his discretion in declining to bring such an action, or in aut hori zing its institution, the courts will take jurisdiction upon the relation of a private citizen, in

the name of the State of Tennessee. See People ex rel. Graves v. District Court of Second Judicial Circuit , 37 Colo. 443, 86 P. 87; Wh it e v . E ag le Oi l & R e f. Co. v. Gunderson , 48 S.D. 608, 205 N.W. 614, 43 A.L. R. 397; State ex rel. Lamb v. Cunningham , 83 Wis. 90, 53 N.W. 35. Whenc itiz ens sue to

rectify a public w

rong, u nder the se circumst ances, a copy

of the complaint sha

ll b e served upon the-33- District At to rn ey Genera l. It shall be the duty of the trial court forthwit hto conduct an in limine hearing designed to de termine whether to permit plaintiffs to proceed. If it be de ter mi ned that the District Attorney Gene

ral’s refusa

l to bring the a ction , or to

auth orize the use of his

name in its

institution, was improper or unjustified, or that plaintiff ’s case i s prima facie meritori ous, the tr ial cour t shall permit the action to proceed.

Bennett v. Stutts , 521 S.W.2d 57 5, 5 77 (Tenn . 1975); see also Metro. Gov’t for Nashville & Davidson Count

y ex rel. Anderson v. Fulton , No. 86-221-II , 1986 Tenn. App. LEXI S 3615, at *6 (Tenn. Ct. App. Dec. 31, 1986) (“Private citizens may not maintain a quo warranto action without first showing that the acts of public officials affe cteda specia l interest or caus ed them lo ss not a

commoninjury to the public ge nerally and ma

y not do so unless the District At torne y has

unreasonably

or improp erly

refuse d to bring

the suit.” ); Wooten v. Macon Cou nty , 1988 Tenn. App. LEXIS 83, at *16–17 (Tenn. Ct. App. Feb. 17, 1988) (“ It ap pears to be well established that actions to enforce T.C.A. § 12-4-101 et seq . are suits in the nature of quo warranto which generally may be prosecuted

only by the District

Attorney Gene

ral on behalf of the State and that a private citizen has

no standing

to pursu e an action for illegal actions of a public off icial without showing a special injury theref orm.”); State ex rel. Vaughn v. King , 653 S.W.2d 727, 729 (Tenn. Ct. App. 1982) (“Our supreme court has held in [ Bennett ] that private citizens cannot maintain a qu o warra nto action complaining of the acts of public officials unless the privateindiv iduals aver a special interest or injury not common to the public gene rally.”).25 Ordinarily, we will af firm a trial co urt’s dec ision co rrect in result, but rendered upon a n erroneo us legal basis. See Co nt’l Ca s. Co . v. Sm ith , 720 S. W.2d 48, 50 (Tenn. 198 6); Arnold v . Ci ty of Chattanooga , 19 S. W.3d 779, 789 (T enn. C t. App . 199 9). -34- As previous ly noted, the

Taxpay ers in the instant case sought to establish that the exception set forth in Badgett applied b ecause they were unable to e stablish

an injury differe nt from the

public at large. See Badg

ett v. Rog ers , 436 S.W.2d 2 92, 294 (T enn. 1968 ) (statin g that taxpay ers may proceed with a lawsuit alleging an illegal use of public funds even

though they

are una ble to esta blish

aninjury differe

nt from that sustained by the public at lar ge). Having failed to allege an injury different from that sustaine d by

the public

at larg e in that in stance, the Taxpay ers nec essarily

fail to do so in this instance as well. Moreover, a copy of the Ta

xpayers’ complaint was ne ver submitted to the district attorney g eneral, and the record is devoid of any mention of a he aring held by the trial court to deter mine if the

Taxpay ers shoul d be allowed to proc eed witho ut the dis tric t attorney general’s approval. Accordingly, the Taxpayers ca nnotavail themselves of the limited exception set forth in Bennett . As such, the trial court, albeit for an erroneous rea son, was correct to conclude that the Taxpay

ers do not have sta nding to p

ursue the ir claim a

gainst t he Appel lees. 25

Alth ough the Taxpay

ers do not have sta nding to p

ursue the ir claim in

its present form, we

are not inclined to dismiss their lawsuit outright by affirming the trial court’s grant of p artial summary ju dgm ent on t hi s cl aim . In resolving this issue, we are gu ided by a prior d ecision o f this Court , stat ing:

The present record doe s not d emonstrate that the relators or

any of them has sustaine d any specia l damage resulting from the-35- wrongfulacts complained of, that is , no damage which would not be sustained in common w

ith all o th er ci ti ze ns of

Ma co n C ou nt y. Therefore, relators have no standing to pursue this suit except in the

name of the District

Attorney Gene

ral or by spec ial authority gr anted by the Trial Court under Bennett v . Stutts , supra . . . . Inthis posture of the proceeding, i t does not a ppear to be in

o rder to summari ly d

ismiss the s

uit. The r

eason for this is tha

t th e relators have und

ertake n to state andsupport a suit on behalf of the public which, if

meritori ous o ught to b e prosecuted by the District Attorney Ge ne ra l. It w ou ld th er ef or e b e m an if

es tl y u nfair to the public and to the

District A

ttorney Genera l to dismiss th

is suit withoutan adequate opportunity to the District

Attorney to pursue the suit on behalf of the public. Under the authorities discussed herein, the Tria l Judge sho

uld require the Distr

ict Attorney

Genera l, after investi g ating and consideringall elements of the present suit, to make his discretionary decisionas to whether the suit has me

rit and should be prosecuted, and to ask that his name be substituted for the present re lator s and proceed with the prosecution of the case, including resistance to the defendant’s motion for

summary judgme

nt, to authorize the relators to proce ed in his na

me or to move for dismissal.26 We are mindf ul t hat DuPont and t

he City have rai sed for t

his Court ’s cons iderat ion th e iss ue of whet her the tri al court should have d isqua lified M r. Th ornto n from repre senting th e T axp ayers in this case. However, the tri al court never rende red a deci sion

on the motion due to the grant of partial s ummary judgment and the Taxp ayers’ subsequent decis ion t o nonsu it

the ir r emain ing cla ims pr iorto the hearing on the motion. During t he pendency of this appeal, t he City filed a m otion asking th is Co urt to d isqua lify Mr. T hornton from representing t he Taxpayers on app eal. This Court

(con tinued ...) -36- If the Trial Court finds that the motion of the DistrictAttorney Generalto dismiss or

his failur e to enter or authorize prosecution of the suit is reasonably within his discretionary powers, the motion should be sustained. If the Tria l Court finds that the

decision of the Dist ri ct Attorney General not

to prosecute or

authorize prosecution, or failure to make a decision is “arbitrary, capricious, ora palpable abuse of discretion”, the Trial Court should overrule the motion to dismiss and grant specia l permission to the relators to proceed without participation

of the District Attorney

General as provided in Bennett v. Stutts , supra .

Wooten v. Macon

County , 1988 Ten

n. App. L EXIS 83, at *20

–22; see also Munsey

v. Russell Br

os. , 213 S.W.2d 286, 289 (Tenn. Ct. App. 1948).

Inaccordance with our statement in Wooten , we vacate that portion of the trial court’s order

awar ding summary judgme nt to the Appellees on this issue. The Taxpayers’ cause of actio n challenging

the land transaction

between the City and Counc ilman Handley is rema nded to the trial court for furthe

r proce edings n

ot inconsi stent with

this opinion. 26 Due to our holding in this case,26 (.. .continu ed)

denied the City’ s motion. Rule 6 o f the Rules of the Co urt of App eals of Te nnessee pro vides, in relevant part, as follows:

(a) Written argument in regard to each i ssue on appeal shall contai n: (1) A s tat ement

by the appellant of t

he alleged e rroneo us action of the trial court which raises the issue . . . with c itati on to the re c ord where the e rroneous or correct ive act ion is recorded

. (2) A statement showing how such alleged error was sea sona bly called to the att enti on of th e tri al judge wit h ci tat ion t o tha t par

t of the rec ord where app ellant’s chal leng e of t

he al lege d error

is recor ded. Since the t

rial court ne ver had an opport unit y to r ule upon t

his mot ion, we have no al leged error t o review on ap pea l. Mo reover, this Co urt ma y only en tertain a tria l court’s final jud gme nts. See Tenn. R. App. P. 3(a) (2004). Sin ce the t rial court never entered a judgment on the City’ s motion, we have no judgment on this issue to r eview on ap pea l. See Thompson v. Di ckers on , No . 02A 01-9 702 -CV -000 34, 1 997 Te nn. Ap p. LE XIS 547 , at *8 (Tenn. Ct. App. Aug. 1, 1997 ). In passing on this issue, we must also take i nto account our ho lding in this case. T he distric t attorne y gener al’s potenti al involve men t in this case o n rem and may re nde r a de cision o n the issue moo t. W e are al so m indful tha t, in compliance with our holding and the aforement ioned authori ties , th e potenti al exi sts that the Taxpayer s may be permi tted to pursue t

heir c laim wi thout

the i nvolvement

of th e dist

rict att orney general. Inthe event that this contingency occ urs, the Cit y is free t o re-f

ile its motion at

the appropri ate t ime so t hat t he tri al court

may render

a decisi on on the i ssue. -37- it is not necessary

that we reach thesecond issue raised by the Taxpayers on appe al, therefore, it is pretermitted.

IV. C ONCLUSI ON

Since these lawsuits were consolidated and not joined, this Court is without jurisdict ion to entertain the issues presented by the parties relating to the City’s la wsuit against the Handleys and other defendants. We are also without jurisdiction to entertain any issues r

elated to the claim which the Taxpayers voluntarily

nonsuited. As for the tri al court’s decision to grant the Appellees summary judgment on the Taxpayers’ c

hallenge to the land transaction betwe en t he City and Councilman Ha nd le y, we vacate the trial court’s order a nd remand this case to the trial court for further-38-

procee dings not inco ns istent with this opinion . Costs of th is appea l are taxe d to the Ap

pellants, Gene Plant, et al . a nd th ei r s ur et y, f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ ALAN E. HIGHERS, JUDGE