Doyle S. Silliman v. City of Memphis , 2006 Tenn. App. LEXIS 831 ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 30, 2014
DOYLE S. SILLIMAN, ET AL. V. CITY OF MEMPHIS
Appeal from the Chancery Court for Shelby County
No. CH1102423, CH1102443, CH1102431 Walter L. Evans, Chancellor
No. W2013-02858-COA-R3-CV - July 2, 2014
In this case, we are called upon to review the trial court’s decision to set aside a
consent order regarding an annexation on the basis of the subsequent passage of legislation
allegedly affecting the agreed-upon annexation. Because we conclude that Tennessee Code
Annotated Section 6-51-122 does not apply to prohibit the annexation ordinance at issue, we
reverse the trial court’s judgment and reinstate the consent order.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Reversed
and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellant, The City of
Memphis.
Ricky E. Wilkins and Sharon H. Loy, Memphis, Tennessee, for the appellees, Doyle S.
Silliman, Larry Sawyer, Wanda Sawyer, Harry E. Smith, III, Kathleen J. Smith, Robert E.
Teutsch, Marilyn Williams, Frank G. Witherspoon, Martha C. Witherspoon.
OPINION
Background
At some point prior to June 2006, the Defendant/Appellant City of Memphis (“the
City”) enacted Ordinance No. 4513 (“the Ordinance”), thereby annexing into the City the
property described in the Ordinance, commonly known as the Southwind Annexation Area.
Plaintiffs/Appellees Doyle S. Silliman, Marilyn Williams, Harry E. Smith, III, Kathleen J.
Smith, Larry Sawyer, Wanda Sawyer, Robert E. Teutsch, Roslyn M. Teutsch, Frank G.
Witherspoon, and Martha C. Witherspoon (collectively, “Appellees”), on behalf of
themselves and other similarly situated property owners, filed three separate quo warranto 1
actions challenging the legality and reasonableness of the annexation pursuant to Tennessee
Code Annotated Section 6-51-103. The lawsuits were later consolidated pursuant to
Tennessee Code Annotated Section 6-51-103(d).2
On June 8, 2006, Appellees and the City entered into a consent order, captioned
“Amended Consent Final Judgment,” which allowed the annexation of the Southwind
Annexation Area to move forward. The consent order stated that “[w]ithin the time frame
established [herein], the validity of Ordinance No. 4513 is sustained. To determine the
effective dates of the annexation, the parties divided the area contained in the Southwind
Annexation Area into five subsections and provided the effective annexation dates for each
area. Specifically at issue in this case were the areas known as “B1 and B2.” The consent
order indicates that the annexation would occur on December 31, 2013. In addition, the
consent order specifically includes terms that the parties could not appeal the consent order,
and that the order was a final judgment disposing of all matters in dispute.
Several years passed. On May 16, 2013, the Tennessee General Assembly passed new
legislation , which appeared to establish an annexation moratorium preventing municipalities
from extending their corporate limits by means of annexation by ordinance from April 15,
2013 through May 15, 2014. See generally Tenn. Code Ann.§ 6-51-122 (including certain
exceptions not pled in this case). Thereafter, on December 19, 2013, less than two weeks
from when the annexation was to become effective, the Appellees filed a motion captioned
“Combined Petition and Memorandum in Support of Injunctive Relief and Relief from
Amended Consent Final Judgment.” In their motion, which concerned only the areas known
as B1 and B2, the Appellees asked the trial court to set aside the consent order allowing the
annexation of these areas, which annexation was to occur on December 31, 2013. As the
1
The appropriate method to challenge the reasonableness and necessity of an annexation
ordinance is through a timely filed quo warranto action. See Town of Huntsville v. Scott County, 269
S.W.3d 57, 61 & n. 5 (Tenn. Ct. App. 2008). The term “quo warranto” is Latin for “by what authority.”
Bryan A. Garner, A Modern Legal Dictionary 731 (2d ed. 1995) (noting that a quo warranto proceeding
is “generally used to inquire into the authority by which a public office is held or franchise is
claimed”).
2
Tennessee Code Annotated Section 6-51-103(d) provides, in pertinent part: “If more than one
(1) suit is filed, all of them shall be consolidated and tried as one (1) in the first court of appropriate
jurisdiction in which suit is filed.”
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ground for their petition, Appellees relied upon Rule 60.02 of the Tennessee Rules of Civil
Procedure, arguing that the General Assembly’s intervening enactment of Tennessee Code
Annotated Section 6-51-122 prevented the City from annexing any property by ordinance
until after May 15, 2014. The Appellees also asked that the trial court enter an injunction
preventing the City from annexing the subject property until May 16, 2014. The City filed
a response denying that the Appellees were entitled to relief.
On December 23, 2013, the trial court granted the Appellees’ motion to set aside the
consent judgment, as well as their request for an injunction preventing the City from
annexing the subject property until the expiration of the statutory moratorium. On the same
day, the City filed a motion for a stay pending appeal, which was denied by the trial court.
The City subsequently filed its notice of appeal to this Court.34
Issues Presented
The City raises several issues for review, which are taken, and slightly altered, from its brief:
1. Whether the trial court erred by granting Appellees relief
from the Amended Consent Final Judgment entered June
8, 2006 pursuant to Rule 60.02?
2. Whether the provisions of Tennessee Code Annotated
Section 6-51-122 preclude implementation of the City’s
Annexation Ordinance No. 4513 on December 31, 2013
as provided in the June 8, 2006 Amended Consent Final
Judgment?
3. Whether the Tennessee Constitution’s prohibition against
retroactive laws precludes Tennessee Code Annotated
3
Initially, on December 23, 2013, the City filed an application for an extraordinary appeal
with this Court pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The City specifically
noted that it was unsure as to whether the trial court’s order constituted a final judgment pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure. On January 6, 2014, this Court denied the application for
extraordinary appeal on the basis that “Applicant concedes that the order appealed is a final judgment and
should be appealed pursuant to Rule 3 . . . .” The City subsequently filed its notice of appeal to this Court
pursuant to Rule 3. We have independently reviewed the record and agree with the City that the trial court’s
December 23, 2013 order was a final, appealable judgment. See Tenn. R. App. P. 13(b) (“The appellate court
shall also consider whether the trial and appellate court have jurisdiction over the subject matter, whether
or not presented for review[.]”). Thus, we consider this appeal pursuant to Rule 3.
4
Pending appeal, the City also sought a stay of the trial court’s order pending appeal from
this Court. This Court denied the request by order of January 31, 2014.
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section 6-51-122 from impairing the vested rights of the
City created by the June 8, 2006 Amended Consent Final
Judgment?
4. Whether Appellees are entitled to a modification of the
Amended Consent Final Judgment based on the
subsequent enactment of Tennessee Code Annotated
Section 6-51-122?
5. Whether the trial court erred in granting Appellees’
request for injunctive relief?
In the posture of appellee, the Appellees also raise an issue as to the mootness of this appeal.
As we perceive it, however, there are three issues in this case:
1. Whether the mootness doctrine demands dismissal of this appeal?
2. Whether the trial court had subject matter jurisdiction to set aside the final consent
order?
3. Whether the trial court abused its discretion in setting aside the final consent order?
Analysis
Subject Matter Jurisdiction
We begin with the Appellees’ assertion that this Court lacks subject matter jurisdiction
over this appeal because the controversy has been rendered moot. Specifically, the Appellees
argue that because the trial court’s injunction only prevents the City from attempting to annex
the Southwind Annexation Area until May 16, 2014, a date which had passed at the time this
case was submitted to the Court on briefs, there is no remaining impediment to the
annexation of the subject property. Because the City is no longer enjoined from taking steps
to annex the Southwind Annexation Area by ordinance, the Appellees argue that this Court
can offer no relief to the City to which they are not already entitled.
Our Supreme Court recently discussed the intertwining issues of justiciability and
mootness:
This Court must first consider questions pertaining to
justiciability before proceeding to the merits of any remaining
claims. See UT Med. Grp., Inc. v. Vogt, 235 S.W.3d 110, 119
(Tenn. 2007) (noting that justiciability is a threshold inquiry).
The role of our courts is limited to deciding issues that qualify
as justiciable, meaning issues that place some real interest in
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dispute, Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838
(Tenn. 2008), and are not merely “theoretical or abstract,”
Norma Faye Pyles Lynch Family Purpose LLC v. Putnam
Cnty., 301 S .W.3d 196, 203 (Tenn. 2009). A justiciable issue is
one that gives rise to “a genuine, existing controversy requiring
the adjudication of presently existing rights.” Vogt, 235 S.W.3d
at 119.
* * *
To be justiciable, an issue must be cognizable not only at
the inception of the litigation but also throughout its pendency.
Norma Faye Pyles Lynch Family Purpose LLC, 301 S.W.3d at
203–04. An issue becomes moot if an event occurring after the
commencement of the case extinguishes the legal controversy
attached to the issue, Lufkin v. Bd. of Prof’l Responsibility, 336
S.W.3d 223, 226 (Tenn. 2011), or otherwise prevents the
prevailing party from receiving meaningful relief in the event of
a favorable judgment, see Knott v. Stewart Cnty., 207 S.W.2d
337, 338 (Tenn. 1948); Cnty. of Shelby v. McWherter, 936
S.W.2d 923, 931 (Tenn. Ct. App. 1996). This Court has
recognized a limited number of exceptional circumstances that
make it appropriate to address the merits of an issue
notwithstanding its ostensible mootness: (1) when the issue is of
great public importance or affects the administration of justice;
(2) when the challenged conduct is capable of repetition and
evades judicial review; (3) when the primary dispute is moot but
collateral consequences persist; and (4) when a litigant has
voluntarily ceased the challenged conduct. Lufkin, 336 S.W.3d
at 226 n.5 (citing Norma Faye Pyles Lynch Family Purpose
LLC, 301 S.W.3d at 204).
City of Memphis v. Hargett, 414 S.W .3d 88, 96 (Tenn. 2013). Thus, the Appellees argue
that the City’s appeal is moot because this Court can offer the City no “meaningful relief in
the event of a favorable judgment.” Id. (citing Knott, 207 S.W.2d at 338).
The City, in contrast, argues that this case is not moot, as the City would receive
“meaningful relief in the event of a favorable judgment.” Id. (citing Knott, 207 S.W.2d at
338). Specifically, the City argues that if this Court were to determine either that the trial
court did not have the power to alter the terms of the consent judgment, or that the trial court
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abused its discretion in enjoining the City from proceeding to annex the Southwind
Annexation Area, the prior consent judgment, in which the annexation was to take place on
December 31, 2013, would be reinstated. Because the consent judgment contains no
requirement that the City take any affirmative action to effectuate the annexation, the City
asserts that “vacating the trial court’s recent order [enjoining the annexation] will
automatically implement the December 31, 2013 annexation of areas B1 and B2 of the
Southwind Annexation Area pursuant to the June 8, 2006 [c]onsent [j]udgement.” If the
consent judgment is reinstated, including the December 31, 2013 effective date of the
annexation, the City asserts that it would be entitled to collect property taxes from the subject
property for the entire fiscal year of 2014. If, however, the City is only entitled to annex areas
B1 and B2 of the Southwind Annexation Area after May 16, 2014, then the City would not
be allowed to collect property taxes for the 2014 fiscal year. See Tenn. Code Ann. § 67-5-
504(c) (“Any annexing municipality that makes assessments of taxes shall only assess the tax
on real property within the annexed territory if the annexation takes effect prior to January
1 of the year in which the assessment is made”).
To support its argument that to reverse or vacate the trial court’s order setting aside
the consent judgment would be to reinstate the June 8, 2006 consent judgment, the City relies
on this Court’s opinion in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106
(Tenn. Ct. App. Aug. 12, 1998). In Luna, the defendant operated a dirt race track in Lincoln
County. Six years prior to the instant litigation, the track had been enjoined from operating
at a noise level that amounted to a nuisance. Id. at *1. When the track was sold to a new
owner, the track’s neighbors filed another lawsuit to enjoin the track’s new owner from
conducting any stock car races on the property because of their belief that the noise would
create nuisance. Id. at *1–*2. The trial court agreed with the neighbors and enjoined the
track’s new owner from conducting races of any sort on the property. Id. at *2. This Court
vacated the second injunction on the ground that it was overly broad. On appeal, however,
the neighbors argued that the vacatur would result in no limits on the amount of noise
emanating from the track. Id. at *8. To the contrary, the Court, led by Judge, now Justice,
William C. Koch, held that the vacatur of the second injunction had the effect of reinstating
the initial injunction:
Our decision to vacate the August 1996 order does not
leave [the track’s new owner] to conduct stock car races as he
pleases. To the contrary, vacating the August 1996 order has the
legal effect of reinstating the May 1982 order that enjoins the
track operators from operating the track “until such time as . . .
[they] can and will operate same where the noise level will not
be a nuisance to the plaintiffs.” Thus, [the track’s new owner],
remains enjoined from operating the track in a way that causes
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a nuisance to the track’s neighbors.
Id. The Court then remanded the matter to the trial court to determine some “objective,
well-defined noise levels suitable for the locality and the character of the surrounding
neighborhood as well as the time of day when the races will be conducted” upon which the
question of nuisance could be judged. Id. at *9.
The City argues that, based upon the holding in Luna, the effect of any decision in
this Court reversing or vacating the trial court’s decision to set aside the consent order will
result in the reinstatement of the June 8, 2006 consent judgment. Because the June 8, 2006
consent judgment provides that annexation will occur on December 31, 2013, with no
intervening action required by any party, the City argues that reinstatement of the consent
judgment will allow the City to collect property taxes from areas B1 and B2 of the Southwind
Annexation area for the 2014 fiscal year, pursuant to Tennessee Code Annotated Section 67-
5-504(c). Thus, the City argues that this Court can offer the City meaningful relief in the
event of a favorable judgment.
We agree with the City regarding the effect of a judgment in its favor. As explained
in Luna, were this Court to vacate or reverse the trial court’s decision setting aside the June
8, 2006 consent order, the effect would be to reinstate the consent order based upon its prior
terms. See id. at *8. Other courts have indicated agreement with the proposition that vacatur
or reversal of a subsequent order may result in reinstatement of the earlier status quo. See
Lenoir v. Hardin’s-Sysco Food Services, LLC, No. W2012-02386-COA-R3-CV, 2013 WL
5884661, at *5 (Tenn. Ct. App. Oct. 31, 2013) (concerning an order of an administrative law
judge); Holley v. Blackett, No. W2011-02115-COA-R3-CV, 2012 WL 4799053, at *5
(Tenn. Ct. App. Oct. 10, 2012) (reversing the trial court’s order of dismissal and expressly
reinstating a prior order); Forbes v. Forbes, No. W2005-00694-COA-R3-CV, 2005 WL
2416660, at *7 (Tenn. Ct. App. Sept. 30, 2005) (reversing the trial court’s order construing
the parties’ marital dissolution agreements and expressly reinstating a previous order);
Bilbrey v. Worley, 165 S.W.3d 607, 622–23 (Tenn. Ct. App. 2004) (reversing the trial court’s
final judgment and expressly reinstating the trial court’s initial judgment); see also General
Medicine, P.C. v. Horizon/CMS Health Care Corp., 475 Fed.Appx. 65, 76 (6th Cir. 2012)
(reversing the district court’s decision to set aside a consent judgment and expressly
reinstating the consent judgment). Because a reversal or vacatur of the trial court’s decision
to set aside the June 8, 2006 consent judgment will have the effect of reinstating that
judgment, we cannot agree with the Appellees that this action can provide the City no
meaningful appellate review. The Appellees’ request that we dismiss this appeal for lack of
subject matter jurisdiction is, therefore, denied. Accordingly, we go on to consider the
substantive issues raised in this appeal.
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Rule 60.02
The substantive issues in this case concern the Appellees’ entitlement to relief
pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Rule 60.02 provides, in
pertinent part:
On motion and upon such terms as are just, the court may relieve
a party or the party’s legal representative from a final judgment,
order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; (2) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (3)
the judgment is void; (4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that a judgment should have prospective application;
or (5) any other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable time,
and for reasons (1) and (2) not more than one year after the
judgment, order or proceeding was entered or taken.
We begin with a brief explanation of the law in Tennessee concerning Rule 60.02, as recently
explained by our Supreme Court:
[W]e have characterized relief under Rule 60.02 as an
“exceptional remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289,
294 (Tenn. 1992), “designed to strike a proper balance between
the competing principles of finality and justice,” Jerkins v.
McKinney, 533 S.W.2d 275, 280 (Tenn. 1976). Rule 60.02
provides an “escape valve,” Thompson v. Firemen’s Fund Ins.
Co., 798 S.W.2d 235, 238 (Tenn. 1990), that “should not be
easily opened.” Toney v. Mueller Co., 810 S.W.2d 145, 146
(Tenn. 1991). We have reversed relief granted under Rule 60.02
where the judgment was “not oppressive or onerous.” Killion v.
Tenn. Dep’t of Human Servs., 845 S.W.2d 212, 214 (Tenn.
1992). “[R]elief under Rule 60.02 is not meant to be used in
every case in which the circumstances of a party change after
the entry of a judgment or order, nor by a party who is merely
dissatisfied with a particular outcome.” Henderson, 318 S.W.3d
at 336.
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A party seeking relief under Rule 60.02 must substantiate
the request with clear and convincing evidence. McCracken v.
Brentwood United Methodist Church, 958 S.W.2d 792, 795
(Tenn. Ct. App. 1997). “Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.”
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992). “In other words, the evidence must be such that the truth
of the facts asserted [is] ‘highly probable.’ ” Goff v. Elmo Greer
& Sons Constr. Co., 297 S.W.3d 175, 187 (Tenn. 2009)
(quoting Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330,
341 (Tenn.2005)). In general, “the bar for attaining relief is set
very high and the burden borne by the movant is heavy.”
Johnson v. Johnson, 37 S.W.3d 892, 895 n. 2 (Tenn.2001).
All motions for relief based on Rule 60.02 “shall be made
within a reasonable time.” Tenn. R. Civ. P. 60.02. Motions
based on Rule 60.02(1) or (2) shall be made “not more than one
year after the judgment, order or proceeding was entered or
taken.” Tenn. R. Civ. P. 60.02. In other words, “[o]ne year is the
‘outer limit on the time allowed for filing the motion’ under
60.02(1) or 60.02(2).” Rogers v. Estate of Russell, 50 S.W.3d
441, 445 (Tenn. Ct. App. 2001) (quoting Ellison v. Alley, 902
S.W.2d 415, 417 (Tenn. Ct. App. 1995)). Rule 60.02 does not
“permit a litigant to slumber on her claims and then belatedly
attempt to relitigate issues long since laid to rest.” Thompson,
798 S.W.2d at 238.
Furlough v. Spherion Atlantic Workforce, L.L.C., 397 S.W.3d 114, 127–28 (Tenn. 2013).
In this case, the Appellees have requested relief from the consent order specifically
pursuant to Rule 60.02(5), “any other reason justifying relief from the operation of the
judgment.” Tenn. R. Civ. P. R. 60.02(5). As explained by the Tennessee Supreme Court:
Although motions based on Rule 60.02(5) are subject
only to the “reasonable time” limitation, Tenn. R. Civ. P. 60.02;
see also Rogers, 50 S.W.3d at 446, Rule 60.02(5) has been
construed narrowly by Tennessee’s courts. See Holiday v.
Shoney’s South, Inc., 42 S.W.3d 90, 94 (Tenn. Ct. App. 2000)
(citing Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97
(Tenn. 1993)). Rule 60.02(5) does not “relieve a party from his
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or her free, calculated, and deliberate choices.” Id. Instead, the
rule “affords relief in the most extreme, unique, exceptional, or
extraordinary cases and generally applies only to circumstances
other than those contemplated in sections (1) through (4) of Rule
60.02.” Holiday, 42 S.W.3d at 94. An untimely request under
Rule 60.02(1) or (2) may not be asserted under Rule 60.02(5).
Wallace v. Aetna Life & Cas. Co., 666 S.W.2d 66, 67
(Tenn.1984); Holiday, 42 S.W.3d at 94; Henderson v. Kirby,
944 S.W.2d 602, 605 (Tenn. Ct. App. 1996). Relief under Rule
60.02(5) is not proper “simply because relief under other
provisions is time barred.” Wallace, 666 S.W.2d at 67.
Furlough, 397 S.W.3d at 128.
We review the trial court’s decision to grant a Rule 60.02 motion under the abuse of
discretion standard:
A [t]rial [c]ourt’s decision to grant or deny relief under
Rule 60.02 is reviewed under an abuse of discretion standard.
Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn.
2000); Under wood v. Zurich Ins. Co., 854 S.W.2d 94, 97
(Tenn.1993). In Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001), our Supreme Court disc
Under the abuse of discretion standard, a trial
court’s ruling “will be upheld so long as
reasonable minds can disagree as to propriety of
the decision made.” State v. Scott, 33 S.W.3d 746,
752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d
266, 273 (Tenn. 2000). A trial court abuses its
discretion only when it “applie[s] an incorrect
legal standard, or reache[s] a decision which is
against logic or reasoning that cause[s] an
injustice to the party complaining.” State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The
abuse of discretion standard does not permit the
appellate court to substitute its judgment for that
of the trial court. Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998).
Eldridge, 42 S.W.3d at 85. Appellate courts ordinarily permit
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discretionary decisions to stand even though reasonable judicial
minds can differ concerning their soundness. Overstreet v.
Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). A
trial court’s discretionary decision must take into account
applicable law and be consistent with the facts before the court.
Id. When reviewing a discretionary decision by the trial court,
the “appellate courts should begin with the presumption that the
decision is correct and should review the evidence in the light
most favorable to the decision.” Id. (citations omitted).
Beason v. Beason, 120 S.W.3d 833, 839 (Tenn. Ct. App. 2003). With these parameters in
mind, we consider the merits of the City’s appellate arguments.
I.
We begin with the City’s argument that the trial court was without jurisdiction to set
aside the consent judgment pursuant to Rule 60.02(5) due to the contractual nature of consent
judgments. As explained by this Court:
Consent decrees, compromise and settlement agreements,
and agreed orders are favored by the courts and represent the
achievement of an amicable result to pending litigation. A
consent decree signed by the parties involved has been described
as “about the most binding of agreements that can be made.”
Bringhurst v. Tual, 598 S.W.2d 620, 622 (Tenn. Ct. App. 1980)
(citing Smelcer v. Broyles, 225 Tenn. 187, 465 S.W.2d 355, 356
(Tenn.1971)); Boyce v. Stanton, 83 Tenn. 346, 375–76 (1885)).
Henderson v. Wilson, No. M2009-01591-COA-R3-CV, 2011 WL 683905, at * (Tenn. Ct.
App. Feb. 25, 2011). Further, the Tennessee Court of Appeals in Bacardi v. Board of
Registry of Podiatry, 124 S.W.3d 553 (Tenn. Ct. App. 2003), stated:
A consent order is defined as “a solemn contract or
judgment of the parties put on file with the sanction and
permission of the court.” 49 C.J.S. Judgments § 182 (1997). It
is well settled in Tennessee that consent orders are valid and
binding. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97
(Tenn. 1993). In Nance v. Pankey, 880 S.W.2d 944, 946 (Tenn.
Ct. App. 1993), this Court stated:
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[A consent] order is conclusive upon the
consenting parties, and can neither be amended
nor in any way varied without like consent; nor
can it be reheard, appealed from or reviewed upon
writ of error. After a consent decree has become
final it can only be attacked by a suit against the
counsel who consented to it or by a bill of review
or some original action. Kelly v. Walker, 208
Tenn. 388, 346 S.W.2d 253, 255–56 (1961); see
also City of Shelbyville v. State ex rel. Bedford
County, 220 Tenn. 197, 415 S.W.2d 139, 144
(1967).
Moreover, in Gardiner v. Word, 731 S.W.2d 889, 893 (Tenn.
1987), our Supreme Court reaffirmed the validity of consent
orders and stated that “the reason for the unassailability of a
consent decree is based on the well-founded maxim volenti non
fit injuria (he who consents to what is done cannot complain of
it).” See also Rachels v. Steele, 633 S.W.2d 473, 477 (Tenn. Ct.
App. 1981).
Bacardi, 124 S.W.3d at 562. According to American Jurisprudence:
Consent decrees have attributes both of contracts and of
judicial decrees. Because of this dual character, consent decrees
may be treated as contracts for some purposes but not for others.
Consequently, a consent judgment is subject to many of the rules
relating to the interpretation and enforcement of contracts as
well as those governing the form, entry, and effect of judgments.
Consent decrees closely resemble contracts because their
terms are arrived at through mutual agreement of the parties.
Even though a consent judgment receives a court’s imprimatur,
the judgment is in essence a contract between the parties to the
litigation from which it is derived.
Consent decrees do not arise from a judicial
determination of the rights of the parties or the merits of the
case, and some courts hold that a consent decree does not
purport to represent the judgment of the court but is merely a
recital of an agreement.
A valid offer of judgment, when accepted, is a contract,
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but it is not treated as a mere contract. The essence of the
judgment is that the parties to the litigation have voluntarily
entered into an agreement setting their dispute or disputes at rest
and that, upon this agreement, the court has entered judgment
conforming the terms of the agreement.
46 Am. Jur. 2d Judgments § 186 (footnotes omitted).
Thus, the City argues that because the consent judgment is in the nature of a contract,
the Appellees may not be relieved of their agreement absent some showing of fraud, which
has never been alleged. We respectfully disagree. In two fairly recent cases in this Court, we
have considered the merits of a Rule 60.02 request for relief from a final judgment when the
judgment was entered by the consent of the parties. See State ex rel. Hickman v. Dodd, No.
W2008-00534-COA-R3-CV, 2008 WL 4963508, at *3 (Tenn. Ct. App. Nov. 21, 2008)
(considered Rule 60.02 with regard to a consent order; reversed trial court’s decision to grant
relief from consent order); State ex rel. Johnson v. M ayfield, No.
W2005-02709-COA-R3-JV, 2006 WL 3041865, at *3–4 (Tenn. Ct. App. Oct. 26, 2006)
(considered Rule 60.02 with regard to a consent order; affirmed trial court’s decision to grant
relief from consent order). Both cases involved a consent order acknowledging paternity of
a child and establishing child support. Hickman, 2008 WL 4963508, at *1; Mayfield, 2006
WL 3041865, at *1–4. However, subsequent DNA testing revealed that neither putative
father was the biological parent of the child at issue. Hickman, 2008 WL 4963508, at *1;
Mayfield, 2006 WL 3041865, at *1. In both cases, the putative father sought relief from any
further child support obligation based upon the fact that the child was not his biological
offspring. Hickman, 2008 WL 4963508, at *1; Mayfield, 2006 WL 3041865, at *1. Both
cases considered the putative father’s request as a request to set aside a consent order
pursuant to Rule 60.02. Hickman, 2008 WL 4963508, at *3; Mayfield, 2006 WL 3041865,
at *3–4. Thus, nothing in either case suggests that Rule 60.02 is inapplicable in a situation
where the final judgment sought to be set aside is a consent judgment. See also In re
Kempton L.D., No. W2009-00906-COA-R3-JV, 2010 WL 1838058, at 3–4 (Tenn. Ct. App.
May 7, 2010) (applying Rule 60.02 to a request for relief from a consent order establishing
paternity).
Indeed, our Supreme Court has held that, in the context of workers’ compensation
claims, litigants may seek relief pursuant to Rule 60.02 from court-approved settlements.
Furlough v. Spherion Atlantic Workforce, L.L.C., 397 S.W.3d 114, 127 (Tenn. 2013). The
Court noted, however, that such relief is “rare and ‘disfavored.’” Id. (quoting Henderson
v. SAIA, Inc., 318 S.W.3d 328, 338 (Tenn. 2010)). Federal courts have likewise held that
parties are not precluded from seeking relief from consent judgments simply because consent
judgments are contractual in nature. See Jones v. Professional Motorcycle Escort Service,
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L.L.C., 193 S.W.3d 564, 570 (Tenn. 2006) (“Federal case law interpreting rules similar to
our own are persuasive authority for purposes of construing the Tennessee rule.”). For
example in Northeast Ohio Coalition for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012),
the United States Court of Appeals for the Sixth Circuit held that:
While a consent decree “embodies an agreement of the parties
and thus in some respects is contractual in nature,” it is
nonetheless subject to Rule 60(b) [the federal counterpart to
Rule 60.02] because it is “a judicial decree that is subject to the
rules generally applicable to other judgments and decrees.”
Id. at 601 (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378, 112 S. Ct. 748,
116 L. Ed. 2d 867 (1992)). A treatise on the issue explains:
It is generally recognized in the federal courts that a
judgment by consent may be vacated or set aside in the manner
provided by law, and the fact that a judgment has been entered
by the consent of the parties does not deprive the court of
authority to vacate or set aside that judgment when the requisite
grounds for so doing exist. In the absence of fraud or mistake,
however, a judgment entered by consent ordinarily may not be
modified, amended, or corrected in any essential respect without
the consent of the parties. Thus, a court cannot give relief to a
party who enters into a consent decree or judgment when that
consent is knowingly made and when there is not even a
suggestion of fraud, misrepresentation, or mistake.
* * *
A party seeking modification of a consent decree must
establish at least one of the following four factors by a
preponderance of the evidence to obtain modification or vacatur:
(1) a significant change in factual conditions; (2) a significant
change in law; (3) that a decree proves to be unworkable
because of unforeseen obstacles; or (4) that enforcement of the
decree without modification would be detrimental to the public
interest.
35B C.J.S. Federal Civil Procedure § 1283. The rationale for the court’s continuing
jurisdiction over a consent judgment has been explained by the United States Supreme Court:
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[A] court does not abdicate its power to revoke or modify its
mandate, if satisfied that what it has been doing has been turned
through changing circumstances into an instrument of wrong.
We reject the argument for the interveners that a decree entered
upon consent is to be treated as a contract and not as a judicial
act . . . . The consent is to be read as directed toward events as
they then were. It was not an abandonment of the right to exact
revision in the future, if revision should become necessary in
adaptation to events to be.
System Federation No. 91, Ry. Emp. Dept., AFL-CIO v. Wright, 364 U.S. 642, 81 S. Ct. 368
(U.S. 1961) (quoting United States v. Swift & Co., 286 U.S. 106, 114–15, 52 S. Ct. 460, 76
L. Ed. 999 (1932)). Thus, the mere fact that a judgment was entered by consent will not
deprive the court from considering a motion to set aside the judgment pursuant to Rule 60.02.
II.
The City next argues that the Appellees’ Rule 60.02 motion was untimely. As
previously discussed, motions pursuant to Rule 60.02(5) are subject to a “reasonable time”
limitation. See Tenn. R. Civ. P. 60.02; Furlough, 397 S.W.3d at 128. The City argues that
the Appellees’ motion was untimely because it was filed a mere two weeks from the date
when the annexation of the Southwind Annexation Area was to take place. In contrast, the
Appellees argue that their motion was timely filed because it was filed approximately seven
months from the enactment of Tennessee Code Annotated Section 6-51-122, as well as
within one month from when the Appellees received notice that the City was planning to
move forward with the annexation, notwithstanding the enactment of Tennessee Code
Annotated Section 6-51-122.
“Whether a Rule 60.02 [] motion is filed within a reasonable time is a question of fact
for the trial court, and this Court will review the trial court’s determination under the abuse
of discretion standard.” Walker v. Nissan N.A., Inc., No. M2009-00273-COA-R3-CV, 2009
WL 2589089, at *2 (Tenn. Ct. App. Aug. 21, 2009) (citing Rogers v. Estate of Russell, 50
S.W.3d 441, 445 (Tenn. Ct. App. 2001)). As previously discussed, a trial court abuses its
discretion when it has applied an incorrect legal standard or has reached a decision which is
against logic or reasoning that caused an injustice to the party complaining. Johnson v.
Richardson, 337 S.W.3d 816, 819 (Tenn. Ct. App. 2010) (citing Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001)). We will not overturn the trial court’s decision merely because
reasonable minds could reach a different conclusion. Eldridge v. Eldridge, 42 S.W.3d 82,
85 (Tenn. 2001). Because the Appellees’ motion was filed approximately seven months from
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the enactment of Tennessee Code Annotated Section 6-51-122, and less than one month from
when the Appellees received notice that the annexation was to go forward, we cannot
conclude that the trial court abused its discretion in considering the Appellees’ motion as
filed within a reasonable time.
III.
The City also argues that relief pursuant to Rule 60.02 is inappropriate because an
intervening change in the law is not an appropriate ground for relief from a final judgment.
Specifically, the City asserts that: “A subsequent change in the law is not sufficient to
overcome [the] heavy burden born by those who seek to modify a final consent judgment.”
To support this argument, the City cites the Tennessee Supreme Court case of City of
Shelbyville v. State ex rel. Bedford County, 24 McCanless 197, 415 S.W.2d 139 (Tenn.
1967), in which the Court succinctly stated that: “The mere fact the law has changed is no
defense [to a consent decree].” Id. at 145.
In Shelbyvillle, the parties entered into a consent decree by which the city was
required to pay the county a portion of tax equivalent revenue, which was intended to
compensate for the tax exempt status of the Tennessee Valley Authority (“TVA”). The
Tennessee Supreme Court, in 1958, interpreted the 1940 Amendment to the Tennessee
Valley Authority Act of 1933 (“TVA Act”) to mean that in all contracts entered into after
1940, the city was obligated to share with the county a part of the tax equivalent. See
Rutherford County v. City of Murfreesboro, 205 Tenn. 362, 326 S.W.2d 653 (1958), cert.
denied, 361 U.S. 919, 80 S. Ct. 257, 4 L. Ed. 2d 187 (1959). Based upon this holding, as well
as a United States District Court holding that followed the Tennessee Supreme Court’s
interpretation in the City of Murfreesboro case, see City of Tullahoma v. Coffee County, 204
F. Supp. 794 (E.D. Tenn. 1962), the City of Shelbyville and the County of Bedford entered
into a consent order in which the city would pay a portion of the tax equivalent to the county.
Shelbyville,, 415 S.W.2d at 142–43.
After the consent order was entered, however, the United States Court of Appeals for
the Sixth Circuit reversed the District Court’s interpretation of the TVA Act and held that the
TVA Act did not require cities to make distributions under the 1940 Amendment. See City
of Tullahoma v. Coffee County, 328 F.2d 683 (6th Cir. 1964), cert. denied, 379 U.S. 989,
85 S. Ct. 698, 13 L. Ed. 2d 609 (1965). After the denial of certiorari in the federal action, the
City of Shelbyville ceased making payments pursuant to the consent order and the county
filed suit to enforce its rights. Shelbyville,, 415 S.W.2d at 143. The City of Shelbyville,
however, argued that the consent order should be set aside because it rested upon a mutual
mistake, as the law upon which the consent order was predicated had changed. Id. at 144.The
trial court held that the consent order was valid and enforceable despite the change in the
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courts’ interpretation of the TVA Act. Id. at 143. The Tennessee Supreme Court affirmed the
trial court’s ruling, explaining:
We think there was no mutual mistake under the facts.
The parties were fully aware of the facts and the law when the
consent decree was entered. The mere fact the law has changed
is no defense. The fact that conditions have changed since the
date of the decree, without more is insufficient to vary the terms
of the decree. . . . While it is true the law with respect to the
interpretation of the 1940 amendment has changed the parties
have not been mistaken as to it. They knew in 1963, when the
decree was entered, the state of the law as well as at the present
time.
If it be considered a mistake on the part of the parties, the
City would not be entitled to any relief. Equity will not relieve
against a mistake of law unless there is some other independent
equity in favor of the party seeking relief. Employers Re-Ins.
Corp. v. Going, 161 Tenn. 79, 26 S.W.2d 126 (1930). The City
does not claim any such independent equity.
Moreover, the parties knew at the time the decree was
agreed upon there was a possibility the Federal Court might
change the interpretation of the amendment.
‘If, therefore a compromise of a doubtful right is fairly
made between parties, its validity cannot depend upon any
future adjudication of their right. And, where compromises of
this sort are fairly entered into, whether the uncertainty rests
upon a doubt of fact or a doubt in point of law, if both parties
are in the same ignorance, the compromise is equally binding,
and cannot be affected by any subsequent investigation and
result.’ Trigg v. Read, 24 Tenn. 529 (1845).
Thus, the City cannot question the validity of the consent
decree because of the change in the interpretation of the
amendment.
Shelbyville, 415 S.W.2d at 145 (some internal citations omitted). Thus, the Tennessee
Supreme Court held that a mere change in how a statute is interpreted by the courts is
insufficient to serve as a basis to set aside a consent order.
The holding in Shelbyville is supported by the federal principle that a judgment cannot
be altered by a subsequent change in the decisional law upon which the judgment was
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predicated, absent other extraordinary circumstances. See Black’s Law Dictionary 244 (9th
ed. 2009) (defining decisional law as caselaw, or “[t]he law to be found in the collection of
reported cases that form all or part of the body of law within a given jurisdiction”). As
explained by Federal Procedure: “A change in the judicial view of the law generally is not
‘any other reason’ justifying relief from a final judgment, order, or proceeding under Rule
60(b)(6).” 21A Fed. Proc., L. Ed. § 51:169; see, e.g., Agostini v. Felton, 521 U.S. 203, 239,
117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (“Intervening developments in the law by
themselves rarely constitute the extraordinary circumstances required for relief under Rule
60(b)(6) . . . .”); McGuire v. Warden, Chillicothe Correctional Inst., 738 F.3d 741, 750 (6th
Cir. 2013) (noting that “it is well established that a change in decisional law is usually not,
by itself, an ‘extraordinary circumstance’ meriting Rule 60(b)(6) relief”); Blue Diamond
Coal Co. v. Trustees of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001)
(same). Tennessee Courts have likewise held that a change in decisional law, without more,
is insufficient to require relief pursuant to Rule 60.02. See White v. Gault, No.
M2000-00534-COA-R3-CV, 2001 WL 950042, at *3 (Tenn. Ct. App. Aug. 21, 2001)
(quoting Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157, 160 (5th Cir. 1990) (“A change
in decisional law after entry of judgment does not constitute exceptional circumstances and
is not alone grounds for relief from a final judgment.”)).
Unlike in Shelbyville, however, the change in this case does not involve decisional
law; rather, it involves the statutory framework that governs annexations in Tennessee. As
explained by the Tennessee Supreme Court in Highwoods Properties, Inc. v. City of
Memphis, 297 S.W.3d 695 (Tenn. 2009):
Municipal corporations are political subdivisions of the state,
created as convenient agencies for exercising such of the
governmental powers of the state as may be intrusted to them .
. . . The number, nature, and duration of the powers conferred
upon these corporations and the territory over which they shall
be exercised rests in the absolute discretion of the state . . . . The
state, therefore, at its pleasure, may modify or withdraw all such
powers, may take without compensation such property, hold it
itself, or vest it in other agencies, expand or contract the
territorial area, unite the whole or a part of it with another
municipality, repeal the charter and destroy the corporation.
Id. at 702 (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178–79, 28 S. Ct. 40, 52
L. Ed. 151 (1907)). Thus, “the power to alter the boundaries of a municipality has been
viewed as a natural result of the legislature’s broader power to establish and abolish
municipal corporations.” Highwoods Properties, 297 S.W.3d at 702.
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In 1955, the Tennessee General Assembly, acting under the authority of article XI,
section 9 of the Tennessee Constitution,5 enacted a law governing the annexation of land to
the borders of existing municipalities (“the 1955 Act”). Id. at 704. According to the
Tennessee Supreme Court:
The 1955 Act provided for three mechanisms of annexation: (1)
a single referendum by the voters in the area to be annexed, Act
of Mar. 1, 1955, § 3, 1955 Tenn. Pub. Acts 382, 384–85
(codified as amended at Tenn. Code Ann. §§ 6-51-104, -105
(2005)); (2) two concurrent referenda by, on the one hand,
voters in the area to be annexed and, on the other, voters within
the annexing municipality, both of which must be successful to
establish annexation, id.; and (3) an ordinance of the annexing
municipality, id. § 2 (codified as amended at Tenn. Code Ann.
§ 6-51-102 (Supp. 2008)).
Highwoods Properties, 297 S.W.3d at 704. The only mechanism at issue in this case involves
an ordinance of the annexing municipality, which method has been described as a “radical”
departure from the law prior to 1955. Id. (describing the annexation by ordinance provision
as “[t]he most innovative aspect of the 1955 Act”) (citing Frederic S. Le Clercq, Tennessee
Annexation Law: History, Analysis, and Proposed Amendments, 55 Tenn.L.Rev. 577, 583
(1988)). Accordingly, the power of municipalities to annex areas by ordinance is granted by
the Tennessee General Assembly and governed exclusively by statute.
Here, the City, pursuant to the power granted to it from the General Assembly, sought
to annex the Southwind Annexation area pursuant to an ordinance. The City and the
Appellees entered into a consent order allowing the annexation to proceed, predicated on the
fact that the City had power to annex the area by ordinance pursuant to authority granted to
the City by the General Assembly. In 2013, after the entry of the consent judgment allowing
the annexation to proceed, but before the annexation was to take place, the General Assembly
saw fit to limit the power of municipalities to annex adjoining property by ordinance. See
2013 Tenn. Pub. Laws Ch. 441 (S.B. 279). The Appellees argue that this change removed
the City’s authority to annex any property during the relevant time period. Although the City
denies that Tennessee Code Annotated Section 6-51-122 should be interpreted to preclude
the annexation at issue in this case, there can be no dispute that the enactment of Tennessee
Code Annotated Section 6-51-122 constitutes a significant change in the law with regard to
5
Article XI, section 9 of the Tennessee Constitution provides, in relevant part: “ The General
Assembly shall by general law provide the exclusive methods by which municipalities may be created,
merged, consolidated and dissolved and by which municipal boundaries may be altered.”
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a municipality’s power to annex property by ordinance. The change at issue in this case is not
merely a change in how a statute is interpreted by the court, but presents a substantive and
significant alteration in the annexation power of municipalities. Tennessee courts have held
that the passage of subsequent legislation may, in some circumstances, be sufficient to justify
setting aside a consent order. See White v. Armstrong, No. 01A01-9712-JV-00735, 1999 WL
33085, at *3 (Tenn. Ct. App. Jan. 27, 1999) (noting that a change in circumstances that might
warrant modification of a judgment includes “passage of subsequent legislation”) (citing
Protectoseal Co. v. Barancik, 23 F.3d 1184, 1187 (7th Cir. 1994)); Richards v. Read, No.
01A01-9708-PB-00450, 1999 WL 820823, at *8 (Tenn. Ct. App. July 27, 1999) (same).
Federal courts have also indicated that significant change in the substantive law upon which
a judgment is predicated may be sufficient to justify relief from a judgment. See Horne v.
Flores, 557 U.S. 433, 447, 129 S. Ct. 2579 (2009) (allowing a party to seek relief from a
judgment or order if “‘a significant change either in factual conditions or in law’ renders
continued enforcement ‘detrimental to the public interest’”) (quoting Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 384, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992)); John B.
v. Emkes, 710 F.3d 394 (6th Cir. 2013) (noting that “a court may vacate a consent decree if,
among other things, “a significant change . . . in law renders [its] continued enforcement
detrimental”) (quoting Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 613
(6th Cir. 2011)). Again, the United States Supreme Court has explained the rationale for this
rule: “The court must be free to continue to further the objectives of that Act when its
provisions are amended. The parties have no power to require of the court continuing
enforcement of rights the statute no longer gives.” System Federation No. 91, 364 U.S. at
651–52. Accordingly, we decline to adopt a rule wherein the court is deprived from
considering a motion pursuant to Rule 60.02 when the basis for the motion is the subsequent
passage of legislation which may significantly affect the parties’ respective rights and
prospective obligations pursuant to the final order of the court.
Our decision that the Appellees could petition the trial court for relief from the
consent judgment based upon the intervening passage of legislation does not, ipso facto, lead
to the conclusion that the trial court correctly exercised its discretion in enjoining the
annexation based upon its interpretation of Tennessee Code Annotated Section 6-51-122.
Accordingly, we turn to that question.
Tennessee Code Annotated Section 6-51-122
The City next argues that the trial court erred in setting aside the June 8, 2006 consent
order based upon its interpretation of Tennessee Code Annotated Section 6-51-122.
According to the City, the plain language of Tennessee Code Annotated Section 6-51-122
does not prevent the City from annexing areas B1 and B2 of the Southwind Annexation Area.
Specifically, the City argues that its Ordinance became effective prior to the annexation
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moratorium established in Tennessee Code Annotated Section 6-51-122, and, therefore, the
annexation moratorium does not prevent the annexation at issue. In contrast, the Appellees
argue that the trial court correctly concluded that Tennessee Code Annotated Section 6-51-
122 prevents the annexation of areas B1 and B2 of the Southwind Annexation Area, which
annexation was to become effective during the moratorium established by the statute.
This issue involves the interpretation of Tennessee Code Annotated Section 6-51-122.
Although we review the trial court’s overall decision to grant Rule 60.02 relief under the
abuse of discretion standard, see Beason v. Beason, 120 S.W.3d 833 (Tenn. Ct. App. 2003),
this specific issue involves the proper interpretation to be given to a statute. Consequently,
we shall review the trial court’s interpretation of Tennessee Code Annotated Section 6-51-
122 de novo, with no presumption of correctness. See Pickard v. Tennessee Water Quality
Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013) (citing Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300, 308 (Tenn. 2012)). In determining the proper interpretation to be given to a
statute, we must employ the rules of statutory construction. The Tennessee Supreme Court
recently reiterated the “familiar rules,” stating:
Our role is to determine legislative intent and to effectuate
legislative purpose. [Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 526 (Tenn. 2010)]; In re Estate of Tanner, 295 S.W.3d
610, 613 (Tenn. 2009). The text of the statute is of primary
importance, and the words must be given their natural and
ordinary meaning in the context in which they appear and in
light of the statute’s general purpose. See Lee Med., Inc., 312
S.W.3d at 526; Hayes v. Gibson Cnty., 288 S.W.3d 334, 337
(Tenn. 2009); Waldschmidt v. Reassure Am. Life Ins. Co., 271
S.W.3d 173, 176 (Tenn. 2008). When the language of the statute
is clear and unambiguous, courts look no farther to ascertain its
meaning. See Lee Med., Inc., 312 S.W.3d at 527; Green v.
Green, 293 S.W.3d 493, 507 (Tenn. 2009). When necessary to
resolve a statutory ambiguity or conflict, courts may consider
matters beyond the statutory text, including public policy,
historical facts relevant to the enactment of the statute, the
background and purpose of the statute, and the entire statutory
scheme. Lee Med., Inc., 312 S.W.3d at 527–28. However, these
non-codified external sources “cannot provide a basis for
departing from clear codified statutory provisions.” Id. at 528.
Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012). Due to the relatively recent passage
of Tennessee Code Annotated Section 6-51-122, no courts of this State have been called
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upon to interpret its requirements.6 As such, the applicability and interpretation of Tennessee
Code Annotated Section 6-51-122 to the facts of this case are a question of first impression
in this Court.
Thus, we begin our discussion with the language of Tennessee Code Annotated
Section 6-51-122, as it existed in 2013, when this case was initiated,7 which states, in
relevant part:
(a)(1)(A) Notwithstanding this part or any other law to the
contrary, from April 15, 2013, through May 15, 2014, no
municipality shall extend its corporate limits by means of
6
Although no courts have yet considered Tennessee Code Annotated Section 6-51-122, the
Tennessee Attorney General recently released an opinion regarding the applicability of the annexation
moratorium in facts substantially similar to those presented in this case. See Tenn. Op. Atty. Gen. No.
13-71(2014). The Attorney General’s Opinion is discussed in detail, infra.
7
We note that Tennessee Code Annotated Section 6-51-122 was recently amended. See 2014
Tenn. Laws Pub. Ch. 707 (S.B. 2464), § 1 (eff. April 15, 2014). The new version of Tennessee Code
Annotated Section 6-51-122 provides, in pertinent part:
(a) Notwithstanding any provision of this part or any other law to the
contrary:
(1)(A) From April 15, 2013, through the effective date of Section 1 of this
act [i.e., April 15, 2014], no municipality shall extend its corporate limits
by means of annexation by ordinance upon the municipality’s own
initiative, pursuant to § 6-51-102, in order to annex territory being used
primarily for residential or agricultural purposes; and no such ordinance to
annex such territory shall become operative during such period, except as
otherwise permitted pursuant to subdivision (a)(1)(B);
(B) If, prior to April 15, 2013, a municipality formally initiated an
annexation ordinance restricted by subdivision (a)(1)(A); and if the
municipality would suffer substantial and demonstrable financial
injury if such ordinance does not become operative prior to the
effective date of Section 1 of this act; then, upon petition by the
municipality submitted prior to the effective date of Section 1 of
this act, the county legislative body may, by a majority vote of its
membership, waive the restrictions imposed on such ordinance by
subdivision (a)(1)(A); . . . .
2014 Tenn. Laws Pub. Ch. 707 (S.B. 2464), § 1. The changes do not materially effect our discussion in this
case, except as discussed in detail, infra. Thus, we refer to the 2013 version of Tennessee Code Annotated
Section 6-51-122 throughout this Opinion.
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annexation by ordinance upon the municipality’s own initiative,
pursuant to § 6-51-102, in order to annex territory being used
primarily for residential or agricultural purposes; and, except as
otherwise permitted pursuant to subdivision (a)(2), no such
ordinance to annex such territory shall become operative during
such period.
(B) As used in this subsection (a), “municipality” does
not include any county having a metropolitan form of
government.
(2) If, prior to April 15, 2013, a municipality formally initiated
an annexation ordinance delayed by subdivision (a)(1)(A); and
if the municipality would suffer substantial and demonstrable
financial injury if such ordinance does not become operative
prior to May 15, 2014; then, upon petition by the municipality,
the county legislative body may, by a majority vote of its
membership, waive the restrictions imposed on such ordinance
by subdivision (a)(1)(A).
Tenn. Code Ann. § 6-51-122 (2013). The annexation at issue in this case was to take place
on December 31, 2013. The Appellees argue that this fact places the annexation squarely
within the annexation moratorium outlined above. In contrast, the City argues that the above
statute does not place a moratorium on annexations that take place between April 15, 2013
through May 15, 2014, but only on annexation ordinances that become operative between
those dates. The City argues that because the applicable Ordinance became operative on the
date of the entry of the June 8, 2006 consent order, the annexation moratorium does not
apply. Thus, the City argues that proper interpretation of the above statute rests on the
distinction between the operative date of the annexation and the operative date of the
annexation ordinance.
We agree. The Tennessee Supreme Court has previously held that there is a distinction
between the operative date of an ordinance and the effective date of an annexation. See
Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d 695, 711–12 (Tenn. 2009). In
Highwoods Properties, the plaintiff landowners filed a declaratory judgment action to set
aside a consent judgment entered in a quo warranto action to which the plaintiffs were not
parties8 on the basis that the consent judgment was an impermissible amendment of an
8
Here, there is no dispute that the Appellees were plaintiffs in a timely-filed quo warranto
action.
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annexation ordinance. Id. at 697. The ordinance at issue specifically stated that the
annexation would be divided into two stages, one taking place in 2006, and the remainder
of the annexation taking place in 2013. The trial court dismissed the declaratory judgment
action on the basis that the plaintiffs failed to bring their claim in a timely quo warranto
action, which decision was affirmed by the Tennessee Supreme Court. Specifically, the Court
held that a plaintiff challenging an annexation must bring a quo warranto action prior to the
operative date of the ordinance, rather than the date the proposed annexation is to take place.
Id. at 711–12.
In reaching its decision, our Supreme Court discussed the distinction between the
operative date of an annexation ordinance and the effective date of the annexation. First, the
Court looked to the relevant statutory language governing quo warranto actions, as adopted
by the Tennessee General Assembly. Specifically, the Supreme Court considered the plain
language of Tennessee Code Annotated Section 6-51-103(d)(1), the statute governing quo
warranto actions, which provides, in pertinent part:
In the absence of such finding [in a timely filed quo warranto
action, that an annexation ordinance is unreasonable], an order
shall be issued sustaining the validity of such ordinance, which
shall then become operative thirty-one (31) days after
judgment is entered unless an abrogating appeal has been taken
from the judgment, or unless the presiding court grants the
municipality’s petition to defer the effective date pursuant to
subdivision (d)(2).
Tenn. Code Ann. § 6-51-103(d)(1) (emphasis added). Our Supreme Court interpreted the
above language as indicating that regardless of the effective date of the actual annexation,
an annexation ordinance becomes operative thirty-one days after an order is entered
sustaining the ordinance in a quo warranto action, where a timely quo warranto action has
been filed. As explained by the Tennessee Supreme Court:
Th[e plaintiffs’] argument [that their lawsuit was timely
filed] rests on a faulty assumption that there is no difference
between the effective date of the ordinance and the effective
date of the annexation. In our view, although the entire
ordinance became operative thirty-one days after the entry of the
consent judgment, the very terms of that judgment also properly
delay the annexation of Area B until a later date. See [State ex
rel.] Bastnagel [v. City of Memphis], 457 S.W.2d 532,] 534–35
[(Tenn. 1970)] (holding that the date on which an annexation
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ordinance becomes operative is not necessarily “the actual date
of annexation”). The actual date of annexation for Area B has
been merely postponed by a term contained within the judgment
approved by the trial court as reasonable under the
circumstances.
Highwoods Properties, 297 S.W.3d 695, 711–12. Thus, the operative date of an ordinance,
which has been subject to a quo warranto action, is thirty-one days from the entry of an
order sustaining the ordinance. Id.
To support its interpretation of Tennessee Code Annotated Section 6-51-103(d)(1),
the Highwoods Properties Court cites an earlier Tennessee Supreme Court case concerning
annexation by ordinance, State ex rel. Bastnagel v. City of Memphis, 457 S.W.2d 532 (Tenn.
1970). In Bastnagel, the plaintiffs appealed the trial court’s dismissal of their quo warranto
action on the ground that the action was not timely filed based upon a statute that indicated
that an annexation ordinance would become operative thirty days after final passage. Id. at
533 (citing Tenn. Code Ann. § 6-309 (1968)).9 The plaintiffs had filed their action prior to
the actual date of the annexation pursuant to the ordinance, but more than thirty days after
the final passage of the ordinance. The Bastnagel Court considered a substantially similar
quo warranto statute which provided that an annexation ordinance becomes “operative”
thirty days after the passage of the ordinance. Id. at 534. The plaintiffs argued, however, that
the statute does not operate as a bar on a quo warranto action filed more than thirty days
from the passage of the ordinance, when the action is filed prior to the actual date of the
annexation. The Tennessee Supreme Court held that the “operative” language in the quo
warranto statute placed a time limit on the availability of quo warranto actions by aggrieved
land owners based upon the final passage of the ordinance, rather than the actual date of the
annexation:
[W]e think the language of [the quo warranto statute] “provided
said ordinance shall not become operative until thirty days after
final passage” was written into this statute for the sole purpose
of giving aggrieved landowners a reasonable time to further
9
Tennessee Code Annotated Section 6–309 (1968) provided that an annexation “ordinance shall
not become operative until thirty (30) days after final passage thereof.” Although the law has been recodified
at Tennessee Code Annotated Section 6-51-102, the time period for when an ordinance becomes operative
when no quo warranto action has been filed remains the same in this case. See Tenn. Code Ann. § 6-51-
102(a)(1) (“[T]he ordinance shall not become operative until thirty (30) days after final passage thereof.”);
see also Cochran v. City of Memphis, No. W2012-01346-COA-R3-CV, 2013 WL 1122803, at *3 (Tenn. Ct.
App. March 19, 2013) (no perm. app. filed) (“The ordinance becomes operative thirty days after final
passage, as aggrieved property owners may contest annexation during this thirty-day period.”)).
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pursue their objections in the courts and by this language the
Legislature intended the aggrieved landowners to have this thirty
days and to limit their time to this thirty days.
Id. at 535. Thus, the Tennessee Supreme Court held that the operative date of an annexation
ordinance is separate and distinct from the effective date of the annexation, and that the
operative date of the ordinance is the crucial date for purposes of the timeliness of a quo
warranto action. See also Cochran v. City of Memphis, No. W2012-01346-COA-R3-CV,
2013 WL 1122803, at *3 (Tenn. Ct. App. March 19, 2013) (no perm. app. filed) (“The
[annexation] ordinance becomes operative thirty days after final passage, as aggrieved
property owners may contest annexation during this thirty-day period.”); Town of Huntsville
v. Scott County, 269 S.W.3d 57, 61 & n.5 (Tenn. Ct. App. 2008) (noting that where a timely
quo warranto action is filed, the annexation ordinance becomes “operative” thirty-one days
from when “the ordinance is upheld as valid by the presiding court”); City of Knoxville v.
Knox County, No. M2006-00916-COA-R3-CV, 2008 WL 465265, at *3 (Tenn. Ct. App.
Feb. 20, 2008) perm. app. denied (Tenn. Aug. 25, 2008) (holding that the ordinance became
operative thirty days after the quo warranto action was dismissed based upon settlement of
the parties, relying on a previous version of the quo warranto statute).
From our review of Tennessee Code Annotated Section 6-51-122, we are also of the
opinion that the operative date of the annexation ordinance, rather than the effective date of
the annexation, is the crucial inquiry for purposes of whether the annexation moratorium
applies to bar the annexation in this case. First, the language of the statute concerns the
operative date of the annexation ordinance, rather than the operative date of the annexation.
Specifically, the statute provides that “no such ordinance to annex such territory shall become
operative during such period.” Tenn. Code Ann.§ 6-51-122(a)(1)(A). This limitation clearly
applies to ordinances that become operative during the moratorium, rather than annexations
that become effective during that time.
Further, the language of Tennessee Code Annotated Section 6-51-122(a)(1)(B),
stating that the prohibition in subdivision (a)(1)(A) will not apply in certain circumstances
is instructive as to the General Assembly’s intent in this case. Tennessee Code Annotated
Section 6-51-122(a)(1)(B) provides when the “municipality [has] formally initiated an
annexation ordinance” prior to May 15, 2014, the municipality may take steps to waive the
restrictions of (a)(1)(A), if the municipality would suffer “demonstrable financial injury if
such ordinance does not become operative prior to May 15, 2014.” (Emphasis added). This
language again emphasizes that the critical date is when the ordinance becomes operative,
rather than when the annexation takes place. Although this case does not concern the
exception outlined in subsection (a)(1)(B), this Court is not permitted to construe the words
in a statute in a vacuum, but must construe the language of a statute “if practicable, so that
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its component parts are consistent and reasonable.” In re Estate of Tanner, 295 S.W.3d 610,
614 (Tenn. 2009) (quoting Marsh v. Henderson, 424 S.W .2d 193, 196 (Tenn. 1968)). Thus,
the statute’s plain language demonstrates that the General Assembly was seeking to prevent
municipalities from acting to initiate and finalize annexation ordinances during the
moratorium.
Further, as previously discussed, Tennessee courts have consistently construed the
term “operative,” when modifying the term “ordinance,” in the annexation statutory scheme,
as referring to either thirty days from the final passage of the ordinance, when no quo
warranto action is filed, or thirty-one days from the date upon which an order upholding the
validity of the ordinance is entered, when a timely quo warranto action has been filed. See
Highwoods Properties, 297 S.W.3d 695, 711–12; Bastnagel, 457 S.W.2d at 535; Cochran
2013 WL 1122803, at *3; Town of Huntsville, 269 S.W.3d at 61 & n.5; City of Knoxville,
2008 WL 465265, at *3. Statutes “must be read in relationship to one another to effectuate
the intent of the statutory scheme as a whole.” 82 C.J.S. Statutes § 474. Statutes which are
to be construed in pari materia “are to be construed together, and the construction of one
such statute, if doubtful, may be aided by considering the words and legislative intent
indicated by the language of another statute.” Berry’s Chapel Util., Inc. v. Tenn. Regulatory
Auth., No. M2011-02116-COA-R12-CV, 2012 WL 6697288, at *3 (Tenn. Ct. App. Dec.21,
2012) (quoting Wilson v. Johnson Cnty., 879 S.W.2d 807, 809–10 (Tenn. 1994)). In
addition, the legislature is presumed to know both its prior enactments and the state of the
law when passing new legislation. Dixon v. Holland, 70 S.W.3d 33, 37 (Tenn. 2002) (citing
State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997)). Because other sections of the
annexation statute have been construed to mean that the term operative refers to the date the
ordinance becomes operative, rather than the date that the annexation goes into effect, our
interpretation of Tennessee Code Annotated Section 6-51-122 is consistent with prior judicial
interpretations of the statutory scheme.
Based on the foregoing, we hold that Tennessee Code Annotated Section 6-51-
122(a)(1)(A) establishes an annexation moratorium prohibiting annexations by ordinance
wherein the municipality’s annexation ordinance becomes operative from April 15,
2013through May 15, 2014. In this case, the City’s annexation Ordinance became operative
thirty-one days after the order was entered sustaining the validity of the Ordinance in the
Appellee’s timely filed quo warranto action, i.e., July 9, 2008. Because the City’s Ordinance
became operative prior to the moratorium established by the Tennessee General Assembly,
the trial court erred in setting aside the consent order on the basis of Rule 60.02(5).
While not binding on this Court, we note that our decision is consistent with a recent
Tennessee Attorney General’s Opinion on this issue. See Tenn. Op. Atty. Gen. No. 13-71
(Sept. 4, 2013). Opinions of the Tennessee Attorney General are “persuasive,” Whaley v.
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Holly Hills Mem. Park, Inc., 490 S.W.2d 532, 533 (Tenn. Ct. App. 1972), and “entitled to
considerable deference.” State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995). In the Opinion,
the Attorney General was asked to opine as to whether the annexation moratorium contained
in Tennessee Code Annotated Section 6-51-122 applied to prevent an annexation where: (1)
the annexation ordinance was read for final passage in 2009; (2) the ordinance was the
subject of a timely quo warranto action, wherein an order upholding the validity of the
ordinance was entered prior to the effective date of Tennessee Code Annotated Section
6-51-122; and (3) the effective date of the annexation was delayed by the above order until
December 31, 2013. Tenn. Op. Atty. Gen. No. 13-71, at *2–3. According to the Attorney
General, the date that the ordinance becomes operative is the critical date for determining
whether the moratorium applies:
The municipality initiated and passed the Annexation
Ordinances in question in 2009, well before the time frame
staying a municipality from initiating an annexation ordinance
set by [Tennessee Code Annotated Section 6-51-122]. Thus, the
“initiation” of these ordinances was not stayed by [Tennessee
Code Annotated Section 6-51-122]. See Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012) (quoting State
v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)) (stating rule of
statutory construction that courts will discern legislative intent
“from the natural and ordinary meaning of the statutory
language within the context of the entire statute without any
forced or subtle construction that would extend . . . the statute’s
meaning). The filing of the quo warranto action questioning the
legality of the annexation ordinance at issue did not alter the fact
that the municipality had initiated and taken all action required
to pass the ordinances in 2009; the quo warranto action merely
held the effective date of annexation in abeyance until the filed
action was resolved. See Town of Huntsville v. Scott County,
269 S.W.3d 57, 61–62 (Tenn. Ct. App. 2008); City of Knoxville
v. Knox County, No. M2006-00916-COA-R3-CV, 2008 WL
465265, at * 3-4 (Tenn. Ct. App. Feb. 20, 2008); Jefferson
County v. City of Morristown, No. 03A01-9810-CH-00331,
1999 WL 817519, at * 7–9 (Tenn. Ct. App. Oct. 13, 1999).
The more difficult question is whether the language in
[Tennessee Code Annotated Section 6-51-122] prohibiting
certain annexation ordinances from becoming “operative”
between April 13, 2013 and May 15, 2014, applies to the
ordinances at issue. . . .
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The threshold issue for this inquiry is when did the
Annexation Ordinances become effective and operative—the
date they were enacted in 2009, the date the Agreed Order
became effective under Tennessee Rule of Civil Procedure 58 10
. . . , or the “effective date” of December 31, 2013 referenced in
the Agreed Order. The law of Tennessee establishes the
“effective or operative” date of an annexation ordinance is held
“in abeyance” by the filing of a proper quo warranto action and
that the challenged annexation ordinance does not “become
effective or operative” until the date the quo warranto action is
resolved. Town of Huntsville, 269 S.W.3d at 61-62. Here the
quo warranto action was resolved by the Agreed Order entered
with the Circuit Court Clerk . . . . See Tenn. R. Civ. P. 58. Under
Tennessee law on that date the Annexation Ordinances became
“effective or operative.”11 See Town of Huntsville, 269 S.W.3d
at 61–62. The entry of the Agreed Order resolved the quo
warranto action between the parties and caused the Annexation
Ordinances to become effective and operative under Tennessee
law, thereby vesting the parties to that action with a binding
resolution of all contested issues.
10
Rule 58 of the Tennessee Rules of Civil Procedure, states:
Entry of a judgment or an order of final disposition is effective when a
judgment containing one of the following is marked on the face by the clerk
as filed for entry:
(1) the signatures of the judge and all parties or counsel, or
(2) the signatures of the judge and one party or counsel with a certificate
of counsel that a copy of the proposed order has been served on all other
parties or counsel, or
(3) the signature of the judge and a certificate of the clerk that a copy has
been served on all other parties or counsel.
11
We note that the Tennessee Attorney General’s Opinion fails to consider Tennessee Code
Annotated Section 6-51-103(d), which provides that when a timely quo warranto action is filed, the operative
date of the ordinance is not the date an order is entered sustaining the validity of the ordinance, but thirty-one
days after the sustaining order is entered. See Tenn. Code Ann. § 6-51-103(d) (“[A]n order shall be issued
sustaining the validity of such ordinance, which shall then become operative thirty-one (31) days after
judgment is entered unless an abrogating appeal has been taken therefrom.”). This discrepancy has no effect
on the present controversy.
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Tenn. Op. Atty. Gen. No. 13-71, at *2–3 (footnotes omitted).12 Thus, the Tennessee Attorney
General likewise concluded that the crucial date for purposes of determining whether an
annexation is prohibited by Tennessee Code Annotated Section 6-51-122 is the date upon
which the annexation ordinance became operative, rather than the date of the actual
annexation.
The Appellees argue, however, that the Tennessee Attorney General’s Opinion should
not be entitled to persuasive weight because of a recent enactment of the Tennessee General
Assembly that changed the statutory landscape upon which this case must be decided. On
April 15, 2014, while this case was pending appeal, the Tennessee General Assembly passed
legislation amending Tennessee Code Annotated Section 6-51-102 to provide that
“Subsection (a) of this section prohibits any annexation by ordinance that is not both
operative and effective prior to May 16, 2015.” 2014 Tennessee Laws Pub. Ch. 707 (S.B.
2464), § 2. Thus, the Appellees argue that this recent enactment is evidence of the General
Assembly’s intent to forbid annexations by ordinance whether the ordinances become
operative during the moratorium, or whether the annexation becomes effective during the
moratorium. Under this interpretation of Tennessee Code Annotated Section 6-51-122, the
Appellees argue that the annexation of areas B1 and B2 of the Southwind Annexation Area
would be prohibited by the moratorium. This argument, however, is in error for several
reasons. First, the General Assembly specifically chose to delay the effective date of this
amendment to May 16, 2015. See 2014 Tennessee Laws Pub. Ch. 707, § 8 (“Sections 2, 3
and 4 of this act shall take effect on May 16, 2015.”). We “presume that the legislature says
in a statute what it means and means in a statute what it says there.” Rogers v. Louisville
Land Co., 367 S.W.3d 196, 214 (Tenn. 2012) ((quoting Gleaves v. Checker Cab Transit
Corp., 15 S.W.3d 799, 803 (Tenn. 2000)). Accordingly, by choosing to delay the effective
date of this amendment, the General Assembly expressed clear intent that this amendment
should not apply to the current litigation. See State v. Smith, --- S.W.3d ----, 2014 WL
12
From our review of the Attorney General’s Opinion, there appears to be some confusion as to
the date the agreed order resolving the quo warranto action was filed. In five places, the Opinion recites that
the agreed order was entered on April 30, 2012. See Tenn. Op. Atty. Gen. No. 13-71, at *1–3. In one place,
however, the Opinion recites that the agreed order was entered on April 20, 2013. Further, the Opinion states
that: “The quo warranto action was resolved by an Agreed Order that became effective on April 30, 2012,
before the effective date of [Tennessee Code Annotated Section 6-51-122] [i.e, May 16, 2013] but during
the time frame established by [Tennessee Code Annotated Section 6-51-122] precluding annexation
ordinances from becoming operative.” Tenn. Op. Atty. Gen. No. 13-71, at *2. However, the time frame for
the annexation moratorium is from April 13, 2013 through May 15, 2014. Tenn. Code Ann. §6-51-
122(a)(1)(A). If the agreed order was, in fact, entered on April 30, 2012, it would have been entered well
before the “time frame established by [Tennessee Code Annotated Section 6-51-122] precluding annexation
ordinances from becoming operative.” Tenn. Op. Atty. Gen. No. 13-71, at *2. Again, this discrepancy does
not alter our view that the Tennessee Attorney General correctly determined the crucial date for ascertaining
whether the annexation moratorium applies to a particular ordinance.
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2766674 (Tenn. 2014) (“Our primary concern is to carry out this intent without unduly
expanding or restricting the language of the statute beyond the legislature’s intended scope.”)
(citing Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91,
93 (Tenn.1998)). In addition, by its very terms, the above amendment applies to Tennessee
Code Annotated Section 6-51-102, the general annexation ordinance statute, rather than the
annexation moratorium statute. Further, it is unclear as to what subsection of Tennessee Code
Annotated Section 6-51-102 this provision applies, as the General Assembly deleted
subsection (a) of Tennessee Code Annotated Section 6-51-102 immediately prior to this
provision. See 2014 Tennessee Laws Pub. Ch. 707, § 2 (“Tennessee Code Annotated,
Section 6-1-102, is amended by deleting subsections (a), (c), and (d).”). Accordingly, we
decline the Appellees invitation to apply this recent enactment to the analysis in this case.
Based upon the foregoing analysis, we reverse the Shelby County Chancery Court’s
decision to set aside the June 8, 2006 consent judgment. The June 8, 2006 consent judgment
is, therefore, reinstated. All other issues are hereby pretermitted. This cause is remanded to
the trial court for all further proceedings as may be necessary and are consistent with this
Opinion. Costs are assessed to Appellees Doyle S. Silliman, Marilyn Williams, Harry E.
Smith, III, Kathleen J. Smith, Larry Sawyer, Wanda Sawyer, Robert E. Teutsch, Roslyn M.
Teutsch, Frank G. Witherspoon, and Martha C. Witherspoon, for all of which execution may
issue, if necessary.
_________________________________
J. STEVEN STAFFORD/JUDGE
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