Tennessee Firearms Association v. Metropolitan Government of Nashville and Davidson County, Tennessee ( 2017 )

06/15/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 17, 2017 Session
TENNESSEE FIREARMS ASSOCIATION, ET AL. v. METROPOLITAN
GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
TENNESSEE
Direct Appeal from the Chancery Court for Davidson County
No. 16-332-II Carol L. McCoy, Chancellor
No. M2016-01782-COA-R3-CV
This appeal involves an attempt to challenge the legality of a gun show ban that was
adopted for the Tennessee State Fairgrounds. The trial court dismissed the complaint on
numerous alternative grounds. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
John Isaac Harris, Nashville, Tennessee, and Scott L. Braun and Timothy R. Rudd,
Dayton, Ohio, for the appellants, Tennessee Firearms Association, and International Gun-
A-Rama, Inc.
Catherine Jane Pham, and Lora Barkenbus Fox, Nashville, Tennessee, for the appellee,
Metropolitan Government of Nashville and Davidson County, Tennessee.
OPINION
I. FACTS & PROCEDURAL HISTORY
The Metropolitan Government of Nashville and Davidson County (“Metro”) owns
and operates the Tennessee State Fairgrounds by and through a Metropolitan Board of
Fair Commissioners (“the Board”). Metro generates revenue by renting the Fairground
facilities to vendors.
For over thirty years, International Gun-A-Rama, Inc., d/b/a Bill Goodman’s Gun
and Knife Show (“Goodman”) rented facilities at the Fairgrounds to hold gun and knife
shows. In November 2015, the Board presented Goodman with a draft proposal that
would require additional restrictions at his gun shows beyond those imposed by state and
federal law, such as prohibitions on sales between private parties at the gun shows.
Apparently, Goodman and his attorney indicated that they would oppose any such
restrictions. At a public meeting of the Board on December 1, 2015, the Board voted to
terminate all existing contracts with gun show promoters and to prohibit any additional
gun shows at the Fairgrounds until the Board decided otherwise. At its next meeting, in
February 2016, the Board was advised by its legal counsel that Goodman had already
executed contracts to rent the Fairground facilities through the end of 2016, and no basis
existed for terminating those contracts. As such, the Board decided to honor the existing
contracts and let them expire by their terms. However, the Board adhered to its original
decision to prohibit the booking of any additional gun shows going forward, beginning
with the 2017 calendar year.
In March 2016, Goodman submitted a request to reserve the Fairground facilities
for numerous dates in 2017. The director of events for the Fairgrounds notified
Goodman that he could not book any 2017 dates for gun shows “by the current directive
of the Fair Board.”
On April 5, 2016, Goodman and the Tennessee Firearms Association (“TFA”)
jointly filed a complaint for declaratory judgment in the chancery court of Davidson
County. According to the complaint, TFA is a nonprofit corporation formed to promote
the right to keep and bear arms, with members consisting primarily of residents of the
State of Tennessee. As “Count I,” the complaint alleged that the Board’s recent decision
to ban gun shows at the Fairgrounds constituted “a de facto local limitation on the legal
transfer of firearms” in violation of Tennessee Code Annotated section 39-17-1314(a),
which provides:
Except as otherwise provided by state law or as specifically provided in
subsection (b), the general assembly preempts the whole field of the
regulation of firearms, ammunition, or components of firearms or
ammunition, or combinations thereof including, but not limited to, the use,
purchase, transfer, taxation, manufacture, ownership, possession, carrying,
sale, acquisition, gift, devise, licensing, registration, storage, and
transportation thereof, to the exclusion of all county, city, town,
municipality, or metropolitan government law, ordinances, resolutions,
enactments or regulation. No county, city, town, municipality, or
metropolitan government nor any local agency, department, or official shall
occupy any part of the field regulation of firearms, ammunition or
components of firearms or ammunition, or combinations thereof.
2
As “Count II,” the complaint alleged that the Board was not authorized to ban gun shows
at the Fairgrounds pursuant to section 11.602(d) of the Metro Charter, which provides:
All activities being conducted on the premises of the Tennessee State
Fairgrounds as of December 31, 2010, including, but not limited to, the
Tennessee State Fair, Expo Center Events, Flea Markets, and Auto Racing,
shall be continued on the same site. No demolition of the premises shall be
allowed to occur without approval by ordinance receiving 27 votes by the
Metropolitan Council or amendment to the Metropolitan Charter.
The plaintiffs sought a declaration that the Board was precluded from adopting a blanket
ban on gun shows at the Fairgrounds by both the Metro Charter provision and the
aforementioned statute. They sought an order requiring Metro to make its facilities
available to Goodman and to other gun show promoters without the imposition of any
additional restrictions. They also sought an award of “nominal damages” against Metro
based on its imposition of unauthorized restrictions on the transfer of firearms. On May
19, 2016, the trial court granted the plaintiffs’ motion for a restraining order preventing
Metro from taking any action to make the 2017 dates requested by Goodman unavailable
for booking.
Metro filed a motion to dismiss the complaint on numerous grounds, including
lack of standing and failure to state a claim. Metro submitted numerous provisions of the
Metro Charter for the court’s consideration. In opposition to the plaintiffs’ request for
injunctive relief, Metro also submitted to the court the minutes and transcripts of the
Board’s meetings, an affidavit from the director of the Fairgrounds, Goodman’s previous
rental contract, a list of events held at the Fairgrounds in 2010, and other documents.
After a hearing, the trial court entered a written order on July 20, 2016, denying
the plaintiffs’ request for injunctive relief, dissolving the restraining order, and granting
Metro’s motion to dismiss. The order states that the trial court considered the parties’
motions and briefs, the affidavit of the director of the Fairgrounds, the previous contract,
the records of the Board meetings, the list of events at the Fairgrounds in 2010, and other
documents. Ultimately, the trial court found that dismissal of the complaint was
warranted on numerous grounds. The trial court found that TFA lacked standing because
it had no interest in Goodman’s rental contracts with the Board. In addition, the trial
court found that the Board “was acting pursuant to state law authority” when it decided
whether to approve a gun show in its capacity as administrator of the Fairground
premises, pursuant to Tennessee Code Annotated section 39-17-1311. The trial court
also found that the plaintiffs’ interpretation of the Metro Charter provision was
inconsistent with the intent and language of the provision itself. The trial court found that
3
“[t]he voters desired that the types of activities that are mentioned in the Charter
Amendment would continue, but they did not seek to restrict the Fair Board’s ability to
set the terms and conditions upon which those activities would be conducted.”
Alternatively, the trial court found that the plaintiffs had no “private right of action” to
enforce the Metro Charter provision that was allegedly violated. For all of these reasons,
the trial court dismissed the plaintiffs’ complaint.
The plaintiffs timely filed a notice of appeal on August 19, 2016. That same day,
the plaintiffs also filed a “Motion to Amend Final Order.” The motion to amend asserted
that the trial court “erred in its application of the law” and should have denied the motion
to dismiss. After analyzing each of the trial court’s rulings, the motion asked the court to
“reconsider and amend” its order. After a hearing, the trial court denied the motion to
amend on the basis that it “simply [sought] to relitigate issues” that were already
adjudicated. The plaintiffs then filed an amended notice of appeal.
II. ISSUES PRESENTED
The plaintiffs present the following issues for review on appeal:
1. Whether the trial court erred in granting Metro’s Rule 12.02(6)
motion to dismiss; and
2. Whether the trial court erred in denying the plaintiffs’ Rule 59.04
motion to amend the final order.
For the following reasons, we affirm the decision of the chancery court and remand for
further proceedings.
III. STANDARD OF REVIEW
At the outset, we find it necessary to examine the procedural posture of this case.
Metro filed a motion to dismiss for failure to state a claim, along with various provisions
of the Metro Charter. In opposition to the plaintiffs’ request for injunctive relief, Metro
submitted numerous additional documents for the court to review, including the minutes
and transcripts of Board meetings, an affidavit, a list of events held at the Fairgrounds, a
previous contract, and other documents. The trial court heard the request for injunctive
relief and the motion to dismiss at the same hearing. In its written order, the trial court
stated that it granted Metro’s motion to dismiss based on “the entire record in this
matter.” Therefore, we will review the trial court’s decision as a grant of summary
judgment to Metro. See Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 555 n.8
(Tenn. Ct. App. 2015) (quoting Tenn. R. Civ. P. 12.02) (“Converting a motion to dismiss
4
under Rule 12.02(6) into a motion for summary judgment is appropriate when ‘matters
outside the pleading are presented to and not excluded by the [trial] court.’”). We review
a trial court’s entry of summary judgment as a question of law with no presumption of
correctness attached to the trial court’s decision. Sherrill v. Souder, 325 S.W.3d 584, 596
(Tenn. 2010). A trial court’s interpretation of statutes also involves questions of law that
appellate courts review de novo without a presumption of correctness. Shore v. Maple
Lane Farms, LLC, 411 S.W.3d 405, 414 (Tenn. 2013).
IV. DISCUSSION
A. Standing of TFA
We begin with the issue of TFA’s standing. According to the Tennessee Supreme
Court,
The doctrine of standing is used to determine whether a particular plaintiff
is entitled to judicial relief. Knierim [v. Leatherwood], 542 S.W.2d [806,
808 (Tenn. 1976)]. It is the principle that courts use to determine whether a
party has a sufficiently personal stake in a matter at issue to warrant a
judicial resolution of the dispute. SunTrust Bank, Nashville v. Johnson, 46
S.W.3d 216, 222 (Tenn. Ct. App. 2000). Persons whose rights or interests
have not been affected have no standing and are, therefore, not entitled to
judicial relief. Lynch v. City of Jellico, 205 S.W.3d 384, 395 (Tenn. 2006).
Metro. Gov’t of Nashville v. Bd. of Zoning Appeals of Nashville, 477 S.W.3d 750, 755
(Tenn. 2015) (quoting State v. Harrison, 270 S.W.3d 21, 27-28 (Tenn. 2008)). “The
party invoking the court’s jurisdiction has the burden of establishing the elements of
standing.” Hayes v. City of Memphis, No. W2014-01962-COA-R3-CV, 2015 WL
5000729, at *9 (Tenn. Ct. App. Aug. 21, 2015) (no perm. app. filed).
The trial court found that TFA lacked standing because it had “no interest in Mr.
Goodman’s contracts with the Fair Board.” The trial judge noted, “They can be an active
cheering party all they want, but they are not qualified to stand as a party litigant in this
lawsuit.” On appeal, the plaintiffs maintain that TFA has standing to challenge the
Board’s gun show ban. In their brief, they quote two sentences from Hayes. One states
that an organizational plaintiff may establish standing to sue for an injury to itself in its
own right, and the other lists elements that organizational plaintiffs may alternatively
show to establish standing to sue as a representative of its members with standing.1
1
Those elements are: “(1) its members would otherwise have standing to sue in their own right; (2) the
interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted,
nor the relief requested, requires the participation of individual members in the lawsuit.” Hayes, 2015
5
However, the plaintiffs fail to analyze or explain how either type of standing was
established by TFA under the facts of this case. They simply state, “Here, [TFA] has
standing both in its own right and on behalf of its members arising out of the Fair Board’s
illegal termination of gun shows at the Nashville Fairgrounds that are attended by
members of [TFA].”
“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 v. Bd. of Prof'l Responsibility of Supreme Court, 301 S.W.3d
603, 615 (Tenn. 2010). “[P]arties must thoroughly brief the issues they expect the
appellate courts to consider.” Waters v. Farr, 291 S.W.3d 873, 919 (Tenn. 2009).
Because the plaintiffs failed to develop more than a skeletal argument regarding TFA’s
standing, we decline to consider the issue on appeal.
B. Preemption
We now turn to the substantive allegations of Goodman’s complaint. As “Count
I,” Goodman alleged that Tennessee Code Annotated section 39-17-1314(a) precluded
the Board from enacting a policy creating a blanket ban on gun shows at the Fairgrounds.
Again, the statute provides:
Except as otherwise provided by state law or as specifically provided in
subsection (b), the general assembly preempts the whole field of the
regulation of firearms, ammunition, or components of firearms or
ammunition, or combinations thereof including, but not limited to, the use,
purchase, transfer, taxation, manufacture, ownership, possession, carrying,
sale, acquisition, gift, devise, licensing, registration, storage, and
transportation thereof, to the exclusion of all county, city, town,
municipality, or metropolitan government law, ordinances, resolutions,
enactments or regulation. No county, city, town, municipality, or
metropolitan government nor any local agency, department, or official shall
occupy any part of the field regulation of firearms, ammunition or
components of firearms or ammunition, or combinations thereof.
Tenn. Code Ann. § 39-17-1314(a) (emphasis added). Goodman argued that the Board’s
refusal to rent its facilities to gun show promoters constituted “a de facto local limitation
on the legal transfer of firearms” that was prohibited and preempted by the statute.
WL 5000729, at *9 (citation omitted).
6
The trial court disagreed. It found that the Board “was acting pursuant to state law
authority” when it decided whether to approve gun shows on the premises of the
Fairgrounds in its capacity as administrator of the Fairgrounds. The trial court found that
such authority was provided by another statute within the same Chapter and Part,
Tennessee Code Annotated section 39-17-1311, which provides, in pertinent part:
(a) It is an offense for any person to possess or carry, whether openly or
concealed, with the intent to go armed, any weapon prohibited by § 39-17-
1302(a), not used solely for instructional, display or sanctioned ceremonial
purposes, in or on the grounds of any public park, playground, civic center
or other building facility, area or property owned, used or operated by any
municipal, county or state government, or instrumentality thereof, for
recreational purposes.
(b)(1) Subsection (a) shall not apply to the following persons:
....
(J) . . . .
....
(iii) A person possessing guns or knives when conducting or attending “gun
and knife shows” when the program has been approved by the
administrator of the recreational building or property[.]
(Emphasis added.) The trial court found that “[t]he Nashville Fairgrounds, by its
nomenclature and the history of events that have been held there, constitutes a
recreational facility owned by a governmental entity.” As such, the court concluded that
the statute permits a person to possess a firearm at the Fairgrounds “if that person is
conducting or attending a gun show that has been approved by the Fair Board.” By
extension, the court concluded that section 39-17-1311 authorized the Board to decide
whether or not to approve a gun show on the premises of the Nashville Fairgrounds.
On appeal, Goodman claims that the trial court erred in concluding that a privately
rented facility such as the Fairgrounds is used for “recreational purposes.” See Tenn.
Code Ann. § 39-17-1311(a). Goodman claims that the Fairgrounds is closed to the public
when not being utilized for activities and that it is merely “a facility made available to
rent to others who use it as they contract to use it.” Goodman also asserts that the trial
court should have permitted discovery into the property’s uses. However, the record
before us does not demonstrate that Goodman sought to conduct discovery in the trial
7
court below.2 In response to Metro’s motion to dismiss, Goodman only suggested that “it
is questionable whether the Nashville Fairgrounds may be deemed to be operated for
‘recreational purposes’ . . . when it is rented to a private party for a private show,” but
Goodman suggested that the court did not need to reach that issue based on Goodman’s
reading of the Metro Charter. Meanwhile, Metro submitted to the trial court a list of
events held at the Fairgrounds in 2010, and the trial court apparently relied on that list in
order to conclude that “[t]he Nashville Fairgrounds, by its nomenclature and the history
of events that have been held there, constitutes a recreational facility owned by a
governmental entity.” Goodman submitted no evidence to the contrary.
The Tennessee Supreme Court has recognized that within the Tennessee Code,
“the meaning of the word ‘recreational’ varies depending on the context in which it is
used.”3 Shore, 411 S.W.3d at 428. By its terms, the particular statute in this case applies
to guns carried on “the grounds of any public park, playground, civic center or other
building facility, area or property owned, used or operated by any municipal, county or
state government, or instrumentality thereof, for recreational purposes,” and it permits
guns to be carried at gun shows on the property “when the program has been approved by
the administrator of the recreational building or property[.]” Tenn. Code Ann. § 39-17-
1311(a), (b)(1)(J)(iii) (emphasis added). Merriam-Webster’s Collegiate Dictionary
defines “recreational” as “of, relating to, or characteristic of recreation.” Merriam-
Webster’s Collegiate Dictionary 1040 (11th ed. 2014). It defines “recreation,” as
relevant here, as “refreshment of strength and spirits after work; also: a means of
refreshment or diversion.” Id.
2
Goodman does not cite to any location in the record to indicate that he sought to conduct discovery, and
nothing in the record before us indicates that such a request was made. At oral argument before this
Court, counsel for Goodman stated that he requested discovery during the hearing on the motion to
dismiss and that the trial court declined to permit such discovery. However, we have no transcript of the
hearing to confirm that such a request was made and denied. We cannot simply assume that the recited
facts are true. Statements by counsel during oral argument cannot be considered in lieu of a record of the
proceeding. State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). “[A]n appellate court is
precluded from considering an issue when the record does not contain a transcript or statement of what
transpired in the trial court with respect to that issue.” Id. Here, the record before us does not establish
any basis to grant Goodman relief on an issue regarding discovery.
3
To demonstrate this point, the supreme court in Shore cited Tennessee Code Annotated section 11-7-
103(a) (2012) (identifying certain recreational purposes as a basis for making tracts of land eligible for
conservation and protection under the Tennessee Heritage Conservation Trust Fund); Tennessee Code
Annotated section 11-10-101(6) (2012) (defining “recreational purposes” with regard to the liability of
landowners who lease their property to the State for recreational purposes); Tennessee Code Annotated
section 11-25-104(1) (2012) (identifying certain “recreational opportunities” as “adventure tourism
activities” for the purpose of the Doe Mountain Recreation Authority Act of 2012); Tennessee Code
Annotated section 70-7-102(a) (2012) (limiting the liability of landowners to persons engaging in
“recreational activities” on the property without the landowner’s permission).
8
We agree with the trial court’s conclusion that the Fairground facilities are
recreational property within the meaning of the statute. The Metro Charter authorizes the
Board to hold “fairs and expositions” at the Fairgrounds and to lease the property for
amusement purposes. The list of events held at the Fairgrounds includes the Tennessee
State Fair, flea markets, bicycle clubs, neighborhood meetings, charity events, antique
shows, wrestling, lawn and garden shows, barbecue events, birthday parties, races,
boxing events, car shows, boat shows, toy train shows, dog shows, bird shows, and other
similar events. We reject Goodman’s suggestion that the Fairground facilities are not
recreational facilities simply due to the fact that they are sometimes rented and/or closed
to the public. The Office of the Attorney General construed this statute and considered
the meaning of a public park or recreational facility within the meaning of the statute in
an opinion dated July 29, 2015. We find its reasoning persuasive:
The statute does not make any exceptions for facilities that are owned by a
county or municipality but are operated under contract by a nonprofit
corporation or other non-governmental entity. It makes no exception for
facilities that charge admission or user fees or for facilities that have fences
or other barriers to control ingress and egress. Applicability of the statute is
not limited to normal or customary hours of operation of the facilities, and
there is no exception for facilities that may be temporarily used for special
events with limited attendance.
....
By its plain terms, as amended, Tenn. Code Ann. § 39-17-1311
applies to all parks and all other recreational facilities that are owned or
operated by a county or municipality. . . . Whether a fee is charged for use
or admission or whether use or admission is free of charge is irrelevant.
Likewise, it is irrelevant whether access is controlled by physical barriers or
not.
Moreover, an admission or use charge or a fence would not cause a
public park or other public facility to lose its status as a public park or
public facility. The term “public” commonly connotes property that has
been set aside or is used to serve the state, county, or municipality as a
whole as opposed [to] property used for private gain. See, Webster’s Ninth
New Collegiate Dictionary, at 952 (1988). The nature or character of the
facility thus depends upon its purpose or the reason for its existence. The
fact that admission or use fees may be charged does not alter the public
character of a public facility. For example, the legislature has from time to
time authorized the construction of toll roads and bridges. Those roads and
9
bridges were intended to serve the public at large. That purpose is not
changed by the imposition of the costs of construction and maintenance on
those who use them. See, e.g., Montgomery County Clarksville &
Russellville Turnpike Co., 109 S.W. 1152 (Tenn. 1908). State parks provide
another example. Fees are charged to use campgrounds, golf courses, and
other recreational facilities and to stay in lodges or cabins that are located
within state parks. Such facilities do not lose their public character because
the fee or other charge is imposed to defray the cost of providing the
services offered and maintaining the properties.
Nor does the presence of gates, fences, or other barriers destroy the
public character of a park or other public facility. Many municipal and
county parks and other recreational facilities are not always open on a 24/7
basis. They often have set days and hours of operation and commonly use
locked doors or gates and walls and fences to control access and to secure
the property when it [is] not in operation. Public swimming pools are a
prime example, as are dog parks. Controlled and limited access to
swimming pools is, indeed, mandatory for safety reasons, but that does not
make the swimming pool non “public.” In short, a park or other facility
will not lose its public character simply because access is limited or
controlled either physically or by the imposition of a fee.
Tenn. Op. Atty. Gen. No. 15-63, 2015 WL 4711040 (July 29, 2015). For these same
reasons, we conclude that the Fairgrounds is a recreational property subject to Tennessee
Code Annotated section 39-17-1311 even though it is sometimes rented and/or closed to
the public. As a recreational facility, the statute contemplates that the administrator of
the Fairgrounds has authority to approve (or disapprove) of a gun show at the facility.
See Tenn. Code Ann. § 39-17-1311(b)(1)(J)(iii) (permitting guns to be carried at gun
shows on the recreational property “when the program has been approved by the
administrator of the recreational building or property”). Accordingly, the Board did not
run afoul of the preemption provision of Tennessee Code Annotated section 39-17-
1314(a), which provides that the general assembly preempts the field of firearm
regulation to the exclusion of metropolitan governments “[e]xcept as otherwise provided
by state law.” Making a decision to allow or disallow a gun show at a government-
owned recreational facility is a power specifically recognized “by state law” pursuant to
section 39-17-1311. It is not an unauthorized or preempted de facto local limitation on
the transfer of firearms. The trial court’s decision as to this issue is affirmed.
C. The Metro Charter
In “Count II” of the complaint, Goodman alleged that the Board was not
10
authorized to ban gun shows at the Fairgrounds due to section 11.602(d) of the Metro
Charter, which provides:
All activities being conducted on the premises of the Tennessee State
Fairgrounds as of December 31, 2010, including, but not limited to, the
Tennessee State Fair, Expo Center Events, Flea Markets, and Auto Racing,
shall be continued on the same site. No demolition of the premises shall be
allowed to occur without approval by ordinance receiving 27 votes by the
Metropolitan Council or amendment to the Metropolitan Charter.
Goodman asserted that he was regularly conducting gun shows at the Fairgrounds as of
December 31, 2010, and therefore, gun shows were among the activities protected by the
Charter provision. He asked the trial court to declare that the Charter provision precluded
a gun show ban and to order Metro to make its facilities available for gun shows.
The trial court concluded that Goodman’s claim must be dismissed because
Goodman had “no private right of action to enforce the provisions of the Metro Charter.”
Specifically, the trial court found no mechanism for enforcing the Charter provision as it
related to any specific activity, and no enforceable right to contract with Metro. The trial
court concluded that the Metro Council was authorized to take appropriate steps against
the Board if it deemed the Board’s decision regarding gun shows to be in violation of the
Metro Charter. Finding no basis for a private right of action, the trial court stated that
dismissal was appropriate “on that basis alone.”
The court went on to address the “number of other arguments” that were raised in
Metro’s motion to dismiss. As an alternative ground for dismissal, the trial court found
that Goodman’s substantive interpretation of the Charter provision was not supported by
the language and intent of the Charter provision itself, which had been amended by voter
referendum in 2011. The trial court noted that the Fairgrounds had “a long history” of
operation for over three decades and that many people who participate in events there are
“very protective of its existence.” The trial court found that this sentiment was reflected
by the passage of the charter amendment, as “[t]he voters desired that the types of
activities that are mentioned in the Charter Amendment would continue, but they did not
seek to restrict the Fair Board’s ability to set the terms and conditions upon which those
activities would be conducted.” Goodman challenges both of these rulings on appeal.
1. Private Right of Action
“‘A private right of action is the right of an individual to bring suit to remedy or
prevent an injury that results from another party’s actual or threatened violation of a legal
requirement.’” Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427,
11
433 (Tenn. 2017) (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 296 (3d Cir. 2007)).
While some statutes and rules provide a private remedy by their express terms, others
define legal duties but are silent about whether an individual may bring suit to enforce
them. Id. The plaintiff bears the burden of establishing the existence of a private right of
action. Id. at 434. When the statute or rule at issue does not expressly grant a private
right of action, courts must examine the language of the provision and its legislative
history to ascertain whether the legislative body intended to create an implied right of
action.4 Id. When discerning legislative intent, appropriate factors for consideration
include:
(1) whether the party bringing the cause of action is an intended beneficiary
within the protection of the statute, (2) whether there is any indication of
legislative intent, express or implied, to create or deny the private right of
action, and (3) whether implying such a remedy is consistent with the
underlying purposes of the legislation.
Id. at 435 (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 855-56 (Tenn.
2010)). “[I]t is the legislative body that has the authority to create legal rights and
interests and no right of action can be brought until there is legislative authority for that
right of action.” Gillespie v. City of Memphis, No. W2007-01786-COA-R3-CV, 2008
WL 2331027, at *9 (Tenn. Ct. App. June 5, 2008) (quotation omitted).
On appeal, Goodman does not analyze these factors or legal principles. Instead,
he insists that “[t]here is no ‘private right of action’ issue in this case” to preclude the
relief requested. Goodman contends that the question of whether a private right of action
exists “relates solely to the issue of monetary damages.” As such, Goodman claims that
the trial court erred in dismissing his claims for declaratory judgment and injunctive
relief (regarding the Metro Charter provision) due to the court’s finding regarding the
absence of a private right of action. Goodman asserts that “there is no need” for a private
right of action and that the Tennessee Declaratory Judgment Act provides all the
authority that is required for him to obtain the declaratory relief he sought. We disagree.
Tennessee appellate courts have considered whether a private right of action
existed in a number of cases seeking a declaratory judgment and/or injunctive relief. In
fact, earlier this year, the Tennessee Supreme Court affirmed the dismissal of a
declaratory judgment action because the federal act that was allegedly violated did not
provide a private cause of action that permitted the plaintiffs to enforce its provisions for
their benefit. West v. Schofield, --- S.W.3d ---, No. M2015-01952-SC-RDM-CV, 2017
WL 1376946, at *16 (Tenn. Mar. 28, 2017). In West, inmates filed a declaratory
4
But see Tenn. Code Ann. § 1-3-119 (effective July 1, 2012, providing that no court shall interpret a
statute as impliedly creating a private right of action except as otherwise provided in that section).
12
judgment action alleging that the State’s lethal injection protocol violated the federal
Controlled Substances Act (“CSA”). Id. at *1. The trial court found that the inmates had
“no cause of action” under the CSA and granted the defendants’ motion for judgment on
the pleadings. Id. at *14. The supreme court affirmed the dismissal and “reject[ed] their
attempt to utilize the CSA in this context,” noting that numerous courts had held that the
CSA “does not provide a private cause of action which would permit the Plaintiffs to
enforce its provisions for their benefit.”5 Id. at *16.
Other courts have also considered whether a private right of action existed to
support claims for declaratory or injunctive relief. See, e.g., Am. Heritage Apartments,
Inc. v. Hamilton Cnty. Water & Wastewater Treatment Auth., No. E2014-00302-COA-
R3-CV, 2015 WL 399215, at *8-10 (Tenn. Ct. App. Jan. 30, 2015), aff’d in part, rev’d in
part 494 S.W.3d 31 (Tenn. 2016) (concluding that a private right of action existed
pursuant to the Tennessee Water and Wastewater Treatment Authority Act to permit the
plaintiff’s declaratory judgment action that the county water authority exceeded its
authority by imposing a particular charge);6 Morrison v. City of Bolivar, No. W2011-
01874-COA-R9-CV, 2012 WL 2151480, at *2-10 (Tenn. Ct. App. June 14, 2012)
(concluding that the Revenue Bond Law did not create an individual private right of
action and therefore dismissal of the complaint seeking a declaratory judgment and other
relief based on a violation of the statute was warranted); State, ex rel. Deselm v. Tenn.
Peace Officers Standards Comm’n, No. M2007-01855-COA-R3-CV, 2008 WL 4614523,
at *3 (Tenn. Ct. App. Oct. 16, 2008) (concluding that the appellants lacked standing to
bring their action for declaratory judgment and additional relief based on an alleged
violation of the Little Hatch Act because it did not provide for a private right action);
Gray v. City of Memphis, No. W2004-00976-COA-R3-CV, 2005 WL 652786, at *1-3
(Tenn. Ct. App. Mar. 22, 2005) (concluding that a private right of action existed to
enforce the Mail Order Statute, which the plaintiffs sought to enforce through a complaint
for declaratory and injunctive relief); Image Outdoor Advert., Inc. v. CSX Transp., Inc.,
No. M2000-03207-COA-R3-CV, 2003 WL 21338700, at *8 (Tenn. Ct. App. June 10,
2003) (affirming dismissal of a complaint for declaratory and injunctive relief because no
private right of action existed to enforce the Tennessee Billboard Act).
We reject Goodman’s insistence that the Declaratory Judgment Act provides an
independent basis for him to allege a violation of the Metro Charter regardless of any
issue regarding a private right of action. “‘A litigant’s request for declaratory relief does
not alter a suit’s underlying nature. Declaratory judgment actions are subject to the same
5
“The terms ‘private right of action’ and ‘private cause of action’ are used interchangeably.” Hardy, 513
S.W.3d at 433.
6
Although the Tennessee Supreme Court later reversed in part, the supreme court adopted the court of
appeals’ reasoning and analysis on the issue of whether a private right of action existed. Am. Heritage
Apartments, 494 S.W.3d at 52.
13
limitations inherent in the underlying cause of action from which the controversy arose.’”
Carter v. Slatery, No. M2015-00554-COA-R3-CV, 2016 WL 1268110, at *6 (Tenn. Ct.
App. Feb. 19, 2016), perm. app. denied (Tenn. Aug. 18, 2016), cert. denied 137 S. Ct.
669 (2017) (quoting 26 C.J.S. Declaratory Judgments § 124).7
In sum, we discern no merit in Goodman’s assertion that the trial court erred in
requiring a “private right of action” to support his claim for declaratory and injunctive
relief regarding the Metro Charter. Because this issue is dispositive, Goodman’s
challenge to the trial court’s alternative holding regarding the meaning of the Charter
provision is pretermitted.
D. The Motion to Amend
Finally, Goodman argues that the trial court erred in denying his motion to amend.
The motion to amend was heard by a different chancellor after the original chancellor
retired. As the trial court noted, the parties agreed that the motion to amend presented no
new arguments or evidence. Instead, Goodman’s motion to amend reasserted his
previous arguments made in connection with the motion to dismiss regarding the issues
of standing, a private right of action, and the Metro Charter. Goodman asked the trial
court to “reconsider and amend” its order of dismissal resolving these issues in order to
correct a clear error of law or to prevent injustice.8 The trial court denied the motion on
the basis that it simply sought to relitigate issues that were already adjudicated. On
appeal, Goodman argues that the trial court erred in deeming his motion an improper
attempt to relitigate the issues, and he claims that the trial court should have considered
the merits of his motion to amend.
Having reviewed the trial court’s order of dismissal and the substantive arguments
raised by Goodman in the motion to amend and again on appeal, we find no clear error of
law or injustice that would have entitled Goodman to the relief he sought in his motion to
amend, i.e., denial of the motion to dismiss. Therefore, even assuming for the sake of
argument that a procedural error occurred, he is not entitled to reversal based on this
issue. See Tenn. R. App. P. 36(b); Mobile Home City, Inc. v. Dependable Ins. Co., No.
569, 1985 WL 4132, at *2 (Tenn. Ct. App. Dec. 6, 1985) (concluding that any error in
failing to consider a second motion to amend was harmless as the plaintiff failed to raise
7
As aptly noted by the Sixth Circuit, the absence of a private right of action “stops [the] declaratory
judgment action in its tracks.” Michigan Corr. Org. v. Michigan Dep’t of Corr., 774 F.3d 895, 907 (6th
Cir. 2014). “No private right of action means no underlying lawsuit” and “no declaratory relief.” Id.
8
“The Tennessee Rules of Civil Procedure do not authorize motions to reconsider; such motions are often
deemed by courts as motions to alter or amend the judgment pursuant to Rule 59.04.” Haynes v.
Lunsford, No. E2015-01686-COA-R3-CV, 2017 WL 446987, at *4 (Tenn. Ct. App. Feb. 2, 2017) (no
perm. app. filed).
14
anything in his second motion that was not already addressed by the trial court and
correctly ruled upon by the chancellor).
V. CONCLUSION
For the aforementioned reasons, the decision of the chancery court is hereby
affirmed and remanded. Costs of this appeal are taxed to the appellants, Tennessee
Firearms Association, and International Gun-A-Rama, Inc. d/b/a Bill Goodman’s Gun
and Knife Show, and their surety, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
15