In Re: Macedonia Cemetery

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 9, 2015
IN RE MACEDONIA CEMETERY
Appeal from the Chancery Court for Clay County
No. 4053 Hon. Ronald Thurman, Chancellor
No. M2013-02169-COA-R3-CV – Filed January 15, 2015
This appeal involves a motion to set aside a declaratory judgment action involving a
cemetery. Service to the community at large was made by publication. No answer,
pleading, or response of any kind was filed within the time allowed by the court.
Following a hearing, the trial court provided the Macedonia Cemetery Board of Trustees
with the exclusive authority to oversee operation and maintenance of the cemetery. The
respondents filed a motion to set aside the judgment, claiming they had not received
notice of the hearing. The court denied the motion. The respondents appeal. We dismiss
the appeal for failure to comply with Rule 27 of the Rules of Appellate Procedure and
Rule 6 of the Rules of the Court of Appeals, as such the judgment of the trial court is
affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed;
Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and BRANDON O. GIBSON, J., joined.
Kelly R. Williams, Livingston, Tennessee, for the appellants, Mitchell Strode and Randy
Strode.
Michael R. Giaimo, Cookeville, Tennessee, for the appellee, the Macedonia Missionary
Baptist Church.
OPINION
I. BACKGROUND
On November 8, 2012, the Macedonia Missionary Baptist Church (“the Church”)
filed a petition for declaratory relief in which the Church sought to determine the rights
and responsibilities of the Church and community regarding the Macedonia Cemetery
(“the Cemetery”) and to establish a trust to oversee and maintain the cemetery and set
rules regarding its use. The Cemetery is adjacent to the Church and comprised of land
that was deeded to the general public in 1967 and 1986 for use as a public cemetery.
Personal service of process was dispensed with in this case because the number
and location of potential interested parties in the community at-large was unknown.
Accordingly, the trial court ordered service of process by publication. The notice, dated
May 8, 2013, provided as follows:
NOTICE
Please take notice that the Macedonia Missionary Baptist Church, has filed
a petition in the Chancery Court for Clay County, Tennessee, Case No.
4053, to determine the rights and responsibilities of the church and
community regarding the Macedonia Cemetery and to establish a trust to
oversee and maintain the cemetery and set reasonable rules regarding its
use.
That on the 15th day of April, 2013, Ronald Thurman, Chancellor, entered
an order providing that notice shall be given for four (4) consecutive weeks
in a newspaper in Clay County, Tennessee, and that any party wishing to
file an answer or responsive pleading relative to the Macedonia Cemetery
shall have thirty (30) days from the date of the final publication. Absent
any person filing an answer or responsive pleading, the Court shall enter an
order declaring the rights and manner of operation of the Macedonia
Cemetery.
The notice appeared in the Dale Hollow Horizon, a weekly newspaper of general
circulation in Clay County, on May 15, May 22, May 29, and June 5, 2013. Having
received no answer or responsive pleading, the court entered an order on August 28,
2013, providing the Macedonia Cemetery Board of Trustees with the exclusive authority
to oversee the operation and maintenance of the Cemetery.
On September 25, 2013, Mitchell Strode and Randy Charles Strode (collectively
“Respondents”) filed a notice of appeal. On October 9, 2013, Respondents filed a motion
to set aside the declaratory judgment pursuant to Rule 60 of the Tennessee Rules of Civil
Procedure, a response to the petition for declaratory relief, and a counter-petition.
Respondents alleged that the judgment should be set aside because it was entered by
“surprise” when neither they nor other interested parties had received notice of the action.
They also raised a myriad of issues regarding the current oversight of the Cemetery. This
-2-
court remanded the action to the trial court for consideration of the Rule 60 motion.
Upon remand, the trial court denied the motion, finding that Respondents had failed to
present any proof entitling them to relief. Our consideration of the appeal followed.
II. ISSUES
We consolidate and restate the issues raised on appeal as follows:
A. Whether the appeal should be dismissed for failure to comply with
Rule 27 of the Rules of Appellate Procedure and Rule 6 of the Rules of the
Court of Appeals.
B. Whether the trial court erred in denying the motion to set aside the
judgment.
III. STANDARD OF REVIEW
We review a trial court’s award or denial of relief pursuant to Rule 60.02 of the
Tennessee Rules of Civil Procedure under an abuse of discretion standard. Federated
Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000); Underwood v. Zurich Ins. Co., 854
S .W.2d 94, 97 (Tenn. 1993); Ferguson v. Brown, 291 S.W.3d 381, 386 (Tenn. Ct. App.
2008). Unless the trial court abused its discretion, its ruling on such motions may not be
reversed on appeal. Id. A trial court abuses its discretion only when it “applies an
incorrect legal standard, or reaches a decision which is against logic or reasoning or that
causes an injustice to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001); State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
IV. DISCUSSION
A. & B.
As a threshold issue, we must address the deficiencies in Respondents’ brief. The
Church claims that the appeal should be dismissed for failure to comply with Rule 27 of
the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of
Appeals when Respondents presented a “mishmash of citation to documents filed with
the [c]ourt, conclusory statements, and factual assertions without any citation.” The
Church asserts that Respondents failed to properly outline the issues for appeal and
provide a statement of the applicable standard of review.
-3-
Rule 27(a) of the Tennessee Rules of Appellate Procedure sets forth the
requirements for the content and form of an appellant’s brief as follows:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged),
statutes and other authorities cited, with references to the pages in the brief
where they are cited;
(3) A jurisdictional statement in cases appealed to the Supreme Court
directly from the trial court indicating briefly the jurisdictional grounds for
the appeal to the Supreme Court;
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case, the
course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues
presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument,
setting forth:
A. the contentions of the appellant with respect to the
issues presented, and the reasons therefor, including the
reasons why the contentions require appellate relief, with
citations to the authorities and appropriate references to the
record (which may be quoted verbatim) relied on; and
B. for each issue, a concise statement of the applicable
standard of review (which may appear in the discussion of the
issue or under a separate heading placed before the discussion
of the issues);
(8) A short conclusion, stating the precise relief sought.
-4-
Nonetheless, Rule 27(b)1 provides that if an appellee deems the statement of the issues,
statement of the case, statement of the facts, or the applicable standard of review
provided in the brief unsatisfactory, then it is permissible for the appellee to provide such
sections in his or her brief.
Rule 6 of the Rules of the Court of Appeals provides the following additional
requirements:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous
action of the trial court which raises the issue and a statement
by the appellee of any action of the trial court which is relied
upon to correct the alleged error, with citation to the record
where the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was
seasonably called to the attention of the trial judge with
citation to that part of the record where appellant’s challenge
of the alleged error is recorded.
(3) A statement reciting wherein appellant was prejudiced
by such alleged error, with citations to the record showing
where the resultant prejudice is recorded.
(4) A statement of each determinative fact relied upon
with citation to the record where evidence of each such fact
may be found.
(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific reference to
the page or pages of the record where such action is recorded. No assertion
of fact will be considered on appeal unless the argument contains a
reference to the page or pages of the record where evidence of such fact is
recorded.
1
“Brief of the Appellee. The brief of appellee and all other parties shall conform to the foregoing
requirements, except that items (3), (4), (5) (6) and 7(B) of subdivision (a) of this rule need not be
included except to the extent that the presentation by the appellant is deemed unsatisfactory. If appellee is
also requesting relief from the judgment, the brief of the appellee shall contain the issues and arguments
involved in his request for relief as well as the answer to the brief of appellant.” Tenn. R. App. P. 27(b).
-5-
“[F]ailure to comply with the Rules of Appellate Procedure and the rules of this
Court waives the issues for review.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App.
2000) (citations omitted). Here, Respondents failed to cite any portion of the record in
the argument section of the brief, raised issues not properly before the court, and failed to
identify the appropriate standard of review. Other than a cursory statement that the
judgment was entered by surprise, Respondents failed to argue why they are entitled to
relief from the judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure.
Respondents failed to even cite Rule 60 of the Tennessee Rules of Civil Procedure in the
argument section of their brief. “[T]he failure to make appropriate references to the
record and to cite relevant authority in the argument section of the brief as required by
Rule 27(a)(7) constitutes a waiver of the issue.” Id. Accordingly, we decline to address
the issues raised and dismiss the appeal.
V. CONCLUSION
This appeal is dismissed, and this case is remanded to the trial court for collection
of costs assessed below. Costs of the appeal are taxed equally to the appellants, Mitchell
Strode and Randy Strode, and their surety, if any, for which execution may issue, if
necessary.
_________________________________
JOHN W. McCLARTY, JUDGE
-6-