Michael Cobble v. Greene County, Tennessee

07/31/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 20, 2019 Session
MICHAEL COBBLE ET AL. v. GREENE COUNTY, TENNESSEE ET AL.
Appeal from the Chancery Court for Greene County
No. 20140130 Douglas T. Jenkins, Chancellor
No. E2018-02017-COA-R3-CV
This case involves an action by the petitioner landowners disputing the grant of a zoning
variance to their neighbors, the respondent landowners, for the construction of a carport.
In a previous appeal, this Court reversed the respondent county zoning board’s grant of
the variance and remanded to the trial court for collection of costs and “further
proceedings consistent with this [Court’s] Opinion.” See Cobble v. Greene Cty., 559
S.W.3d 118, 127 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. May 16, 2018)
(“Cobble I”). Our Supreme Court subsequently denied the county’s and zoning board’s
application for permission to appeal, and this Court issued a mandate on the same day.
On September 4, 2018, the petitioners filed a motion for discretionary costs. The county
and the zoning board filed a response, asserting that the motion for discretionary costs
was untimely pursuant to Tennessee Rule of Civil Procedure 54.04(2). The respondent
landowners also filed a response objecting to the motion. Upon finding that this Court’s
mandate was dispositive of all issues and that the petitioners had failed to file their
motion within the thirty days allowed by Rule 54.04(2), the trial court entered an order
denying the motion for discretionary costs. The petitioners have appealed. Discerning
no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.
Lora Cobble, Greeneville, Tennessee, Pro Se and for co-appellant, Michael Cobble.
Roger A. Woolsey, Greeneville, Tennessee, for the appellees, Greene County, Tennessee,
and Greene County Board of Zoning Appeals.
Earl Scott Moore and Joetta Moore, Greeneville, Tennessee, Pro Se appellees.
OPINION
I. Factual and Procedural Background
The petitioners, Michael Cobble and Lora Cobble (collectively, “the Cobbles”),
are neighbors to the respondent landowners, Earl Scott Moore and Joetta Moore
(collectively, “the Moores”). Cobble I, 559 S.W.3d at 119. In December 2013, the
Moores began construction of a prefabricated aluminum carport on the front side of their
property, which was contrary to the 1984 Greene County Zoning Resolution that required
that space to remain open. Id. Upon their discovery that they were violating the zoning
ordinance, the Moores ceased work on the project and applied for a variance with the
respondent Greene County Board of Zoning Appeals (“the BZA”). Id. The BZA denied
the Moores’ first application for a variance. Id. The Moores filed a second application
for a variance, modifying their request by decreasing the requested variance by seven feet
to prevent a protrusion into the public right of way. The Cobbles attended the hearing
before the BZA and objected to the variance, but the BZA ultimately granted the Moores’
second application. Id. at 119-20.
Following the BZA proceedings, the Cobbles filed a Petition for Writ of Certiorari
in the Greene County Chancery Court (“trial court”) in May 2014, naming the BZA and
Greene County (“the County”) as respondents. Id. at 121. The Cobbles subsequently
amended the petition to add the Moores as respondents as well. The trial court issued a
writ of certiorari in July 2016 and conducted a hearing on the Cobbles’ petition in
November 2016. Id. Following a hearing, the trial court affirmed the BZA’s grant of the
Moores’ variance application in an order entered on April 2017. Id. The Cobbles timely
appealed the trial court’s judgment to this Court. Id. at 124.
On appeal, this Court affirmed the portion of the trial court’s judgment finding that
res judicata was not applicable to the second variance application. However, upon
determining that the BZA’s decision had not been supported by material evidence, the
Cobble I Court reversed the trial court’s affirmance of the BZA’s grant of the variance to
the Moores. Id. at 125-27. This Court concluded in relevant part:
A desire to build a carport does not in itself generate grounds for a
variance. The Moores own six vehicles. It is not at all clear how the
Moores’ beneficial use of their property is impaired by any unique hardship
from the terrain. On the contrary, it appears that any hardship incurred by
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the Moores is self-imposed. At the hearing before the BZA, Mr. Moore
stated that it is his business how many vehicles he owns. He is correct, but
it is another matter then to suggest he is entitled to a variance because of a
self-created situation.
With respect to the uniqueness or exceptionalness of the subject
property, we find no evidence in the record on appeal, material or
otherwise, supporting a conclusion that the Moores’ property stands out in
any meaningful way. Indeed, the staff report contained in the record states:
“The rear of the property is challenged with exceptional topographical
conditions. There are other similar lots of record within the subdivision
that are also challenged by similar sloped and topographical conditions.”
This is contradictory. Are all these “other similar lots . . . challenged by
similar sloped and topographical conditions” exceptional as well? If every
lot is exceptional, no lot is exceptional. The Trial Court found further that
“the combination of sloped topography and increased left side-yard setback
due to the subject property being a corner lot would make it difficult to
locate the carport in that area.” However, a map of Mountain View Terrace
contained in the record reveals that there are a number of properties
abutting more than one street in the subdivision. Once again, the subject
property simply is not distinctive. If Greene County considers the current
zoning requirements unduly harsh or oppressive, then they may revisit them
legislatively. However, adopting the position of the BZA in the present
appeal would mean the exceptions collapse the rule in this subdivision.
Having reviewed the record thoroughly, we find no material
evidence to support the BZA’s decision to grant the Moores’ application for
a variance. We, therefore, reverse the Trial Court as to its affirming the
BZA’s grant of the variance.
Id. at 126-27. This Court remanded the case to the trial court “for further proceedings
consistent with [the appellate] Opinion and for collection of costs below.” Id. at 127.
On February 20, 2018, the County and the BZA filed an application for permission
to appeal to the Tennessee Supreme Court, pursuant to Tennessee Rule of Appellate
Procedure 11, which was subsequently denied by the Supreme Court on May 16, 2018.
Also on May 16, 2018, the appellate court clerk issued a mandate to the trial court,
signifying the end of the first appeal.
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On September 4, 2018, the Cobbles filed a motion for discretionary costs in the
trial court. The Cobbles concomitantly filed an “Itemized and Verified Bill of Costs,”
claiming total costs of $1,911.21, consisting of the following expenses: $647.00 for court
costs, $691.90 for court reporter fees, $188.54 for postage charges, $10.00 for a parking
fee, and $373.77 for copying costs. Also on September 4, 2018, the Cobbles filed a
“Motion for Final Order Consistent with Appellate Opinion” and a motion for refund of
their cash bond.
On September 11, 2018, the Moores, acting without benefit of counsel, filed a
response to the Cobbles’ motion for discretionary costs, stating that they had complied
with the instructions received from the County and that they had “not done anything to
warrant payment of any costs the Cobble[s] may have incurred in this lawsuit.” The
Moores requested that the trial court order the County to reimburse them for their costs
resulting from the grant of the variance.
On September 18, 2018, the County and the BZA filed a response to the Cobbles’
motion for discretionary costs, averring that the Cobbles’ motion was untimely because it
should have been filed within thirty days of the appellate court’s mandate filed in the trial
court, pursuant to Tennessee Rule of Civil Procedure 54.04(2) and Tennessee Rule of
Appellate Procedure 43(a). According to the County and the BZA, because the appellate
court’s mandate was issued on May 16, 2018, the Cobbles were required to file their
motion for discretionary costs on or before June 15, 2018.
Following a hearing, the trial court entered an order on October 8, 2018, finding
that the appellate court’s “mandate was dispositive of all issues and that there is no need
for a final judgment in this case or any need to remand this matter to the [BZA].” Upon
finding that no final judgment was necessary on remand, the trial court determined that
the Cobbles’ September 4, 2018 motion for discretionary costs was untimely. The trial
court thereby denied the Cobbles’ motions requesting discretionary costs, entry of a final
judgment, and remand to the BZA. The court granted the Cobbles’ motion for refund of
the cash bond deposited with the trial court clerk and master. The Cobbles timely
appealed.
II. Issues Presented
The Cobbles present two issues on appeal, which we have restated as follows:
1. Whether the trial court erred by determining that the Cobbles’
motion for discretionary costs was untimely.
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2. Whether the trial court erred by determining that entry of a final
judgment and remand of the case to the BZA was unnecessary
following resolution of the previous appeal to this Court.
III. Standard of Review
Our review of the trial court’s judgment following a non-jury proceeding is de
novo upon the record with a presumption of correctness as to the trial court’s findings of
fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d);
Rogers v. Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the
evidence to preponderate against the trial court’s finding of fact, the evidence must
support another finding of fact with greater convincing effect.” Wood v. Starko, 197
S.W.3d 255, 257 (Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins.
Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001)). We review the trial court’s conclusions
of law, including its interpretation of the Tennessee Rules of Civil Procedure, de novo
with no presumption of correctness. Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)
(citing Dial v. Harrington, 138 S.W.3d 895, 897 (Tenn. Ct. App. 2003)).
We generally review an award or denial of discretionary costs according to an
abuse of discretion standard. See Tenn. R. Civ. Pro. 54.04(2) (“Costs not included in the
bill of costs prepared by the clerk are allowable only in the court’s discretion.”);
Placencia v. Placencia, 3 S.W.3d 497, 503 (Tenn. Ct. App. 1999) (“Absent a clear abuse
of discretion, appellate courts generally will not alter a trial court’s ruling with respect to
costs.”). An abuse of discretion occurs when a trial court “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.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)
(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). Concerning the assessment
of discretionary costs, this Court has explained:
Pursuant to rule 54.04, trial courts are vested with wide discretion in
awarding discretionary costs, and this court will not interfere with such an
award except upon an affirmative showing that the trial court abused its
discretion. Generally, trial courts award such costs to whichever party
ultimately prevails in the lawsuit, provided the prevailing party has filed a
timely, properly supported motion. The successful party is not, however,
automatically entitled to an award of costs. Instead, trial courts are free to
apportion costs between the litigants as the equities of each case demand.
Accordingly, if any equitable basis appears in the record which will support
the trial court’s apportionment of costs, this court must affirm. Moreover,
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on appeal, the appellant bears the burden of showing that the trial court
abused its discretion in its assessment of costs.
Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998) (internal citations omitted)
(emphasis added).
We note that Lora Cobble is an attorney, licensed to practice in Tennessee, who is
representing herself pro se and representing Michael Cobble in this action. The Moores
have proceeded pro se throughout both appeals. In reviewing pleadings, we “must give
effect to the substance, rather than the form or terminology of a pleading.” Stewart v.
Schofield, 368 S.W.3d 457, 463 (Tenn. 2012) (citing Abshure v. Methodist Healthcare-
Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010)). We respect the Moores’ decision to
proceed without benefit of counsel and note that pleadings “prepared by pro se litigants
untrained in the law should be measured by less stringent standards than those applied to
pleadings prepared by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279
S.W.3d 560 568 (Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.
App. 2003); Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Although
parties proceeding without benefit of counsel are “entitled to fair and equal treatment by
the courts,” we “must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to observe.”
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
IV. Motion for Discretionary Costs
The Cobbles acknowledge that Tennessee Rule of Civil Procedure 54.04(2)
requires that when an appellate decision has resulted in a different party prevailing than
prevailed in the trial court, the new prevailing party must file a motion for discretionary
costs within thirty days of the appellate court’s mandate for the motion to be timely.
However, the Cobbles contend that because this Court in Cobble I remanded this action
to the trial court for proceedings consistent with the appellate opinion, the trial court was
required to enter a final judgment reversing the BZA’s grant of the variance and
remanding to the BZA. The Cobbles thereby argue that their motion for discretionary
costs was timely because they reasonably anticipated a final hearing in the trial court and
filed their motion before any such hearing was held. The County and the BZA assert that
because this Court’s decision in Cobble I constituted a final disposition of the action on
the merits and because all parties were required to abide by the appellate decision, the
trial court was not required to enter a final judgment on remand from this Court. Citing
Rule 54.04(2), the County and the BZA argue that a motion for discretionary costs had to
be filed within thirty days of this Court’s mandate in order to be timely. Upon careful
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review of the record and the applicable authorities, we determine that the trial court
properly denied the Cobbles’ motion for discretionary costs as untimely.
Tennessee Rule of Civil Procedure 54.04(2) provides in pertinent part:
Subject to Rule 41.04, a party requesting discretionary costs shall file and
serve a motion within thirty (30) days after entry of judgment. The trial
court retains jurisdiction over a motion for discretionary costs even though
a party has filed a notice of appeal. The court may tax discretionary costs
at the time of voluntary dismissal. In the event an appeal results in the final
disposition of the case, under which there is a different prevailing party
than the prevailing party under the trial court’s judgment, the new
prevailing party may request discretionary costs by filing a motion in the
trial court, which motion shall be filed and served within thirty (30) days
after filing of the appellate court’s mandate in the trial court pursuant to
Rule 43(a), Tenn. R. App. P.
(Emphasis added.)1
In support of their argument that the first part of Rule 54.04 applies to this
situation, meaning that they would have had thirty days to file a motion for discretionary
costs following entry of a final judgment in the trial court on remand from this Court, the
Cobbles rely in part on the 2005 Advisory Commission Comment to Rule 54.04,2 which
states:
In some cases, the “prevailing party” under the trial court’s judgment may
not be the prevailing party following an appeal of the judgment. The
amendment to Rule 54.04(2) provides a procedure for requesting
discretionary costs in cases in which: (1) the appellate court’s decision is a
final disposition of the merits of the case; and (2) the appellate court’s
decision results in a new prevailing party. The amendment does not cover
cases in which the appellate court’s decision is not a final disposition of
1
Tennessee Rule of Appellate Procedure 43(a) provides: “Filing of Mandate. The clerk of the trial court
shall file the mandate promptly upon receiving it.” We note that the copy of the mandate appearing in the
appellate record does not have the trial court’s filing date stamp on it. Inasmuch as both parties have
referenced this Court’s issuance date of the mandate of May 16, 2018, as the relevant date, we will treat
the issuance date as the date filed in the trial court throughout this analysis.
2
“While the Advisory Commission Comments are not binding, they are compellingly persuasive.”
McCollum v. City of Friendsville, No. 03A01-9505-CV-000158, 1995 WL 635750, at *5 (Tenn. Ct. App.
Oct. 31, 1995).
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merits of the case, i.e., cases that are remanded for a new trial or for other
proceedings on the merits; in such cases, a motion for discretionary costs
may be filed following the trial court’s ultimate judgment on remand.
It is undisputed that this Court’s decision in Cobble I resulted in a new prevailing
party. See Bradford v. Sell, No. E2008-02424-COA-R3-CV, 2009 WL 3103814, at *7
(Tenn. Ct. App. Sept. 29, 2009) (“A party who prevails in the trial court but loses on
appeal is no longer the prevailing party.” (citing Progressive Casualty Ins. Co. v. Chapin,
243 S.W.3d 553, 562 (Tenn. Ct. App. 2007))). However, the Cobbles do not explain how
this Court’s decision in Cobble I may be interpreted as anything other than a final
disposition of the merits of the case. The Cobbles argue that the remand in Cobble I for
“further proceedings consistent with this Opinion and for collection of the costs below,”
559 S.W.3d at 127, indicated that a final judgment disposing of the case in the trial court
was still required. We disagree.
Our Supreme Court has explained that “[w]hen an appellate court remands an
action to a trial court, the trial court regains jurisdiction over the matter.” Parrish v.
Marquis, 137 S.W.3d 621, 624 (Tenn. 2004). Tennessee Code Annotated § 21-1-810
(2009) provides:
In all cases remanded by the supreme court or court of appeals to any court
for the execution of an order of reference, order of sale or for other
proceedings directed in the decree of the appellate court or in the decree of
the lower courts as affirmed or modified by the appellate court, the cases
shall be deemed reinstated in the lower court from the time of filing with
the clerk and master or clerk of the court a certified copy of the decree or
mandate of the appellate court; and thereafter such cases may be proceeded
in, in accordance with the decree of the appellate court, without any action
of the lower court on the case. It shall not be necessary for the decree or
mandate of the appellate court to be spread of record, in the lower court, by
direction of the lower court, before the clerk and master, clerk of the court,
or the parties may proceed in such case in accordance with the decree or
mandate of the appellate court.
(Emphasis added.) “Once the mandate reinvests the trial court’s jurisdiction over a case,
the case stands in the same posture it did before the appeal except insofar as the trial
court’s judgment has been changed or modified by the appellate court.” Born Again
Church & Christian Outreach Ministries, Inc. v. Myler Church Bldg. Sys. of the
Midsouth, Inc., 266 S.W.3d 421, 425-26 (Tenn. Ct. App. 2007) (quoting Earls v. Earls,
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No. M1999-00035-COA-R3-CV, 2001 WL 504905, at *3 (Tenn. Ct. App. May 14,
2001)).
In the case at bar, the trial court entered a final judgment in April 2017, affirming
the BZA’s grant of a variance to the Moores and dismissing the Cobbles’ petition for a
writ of certiorari. Upon the Cobbles’ appeal, this Court, inter alia, reversed the trial
court’s affirmance of BZA’s decision to grant the variance. Cobble I, 559 S.W.3d at 127.
Our Supreme Court subsequently denied the County’s and BZA’s application for
permission to appeal, and this Court issued its mandate to the trial court on May 16,
2018. At that point, the appellate judgment stood in place of the trial court’s judgment,
and the procedural posture was as though the trial court had reversed the BZA’s decision
concerning the variance. See Inman v. Inman, 840 S.W.2d 927, 932 (Tenn. Ct. App.
1992) (“The judgment on appeal, when recorded in the Appellate Court, stands in the
place of the judgment of the Trial Court, and the legal situation is as if the judgment so
recorded had been originally rendered by the Trial Court.” (adopting principle as quoted
from Swift & Co. v. Leon Cahn & Co., 151 La. 837, 92 So. 355 (1922))). As the County
and the BZA properly note, the parties, including the BZA, were required, upon issuance
of the mandate from this Court, to abide by the appellate decision reversing the grant of
the variance.
The Cobbles’ interpretation of Rule 54.04(2) would only apply if this Court’s
decision in Cobble I had not been “a final disposition of the merits of the case.” See 2005
Advisory Comm’n Comment to Tenn. R. Civ. P. 54.04. To the contrary, in Cobble I, this
Court resolved all outstanding issues, unequivocally found “no material evidence to
support the BZA’s decision to grant the Moores’ application for a variance,” and reversed
the BZA’s grant of the variance. See 559 S.W.3d at 127. This Court’s remand operated
to transfer jurisdiction back to the trial court with the accompanying authority for the trial
court to collect costs and enforce the judgment as rendered by the appellate court. See,
e.g., Tenn. Rand, Inc. v. Automation Indus. Grp., LLC, No. E2011-00280-COA-R3-CV,
2012 WL 130898, at *9 (Tenn. Ct. App. Jan. 12, 2012) (explaining regarding a previous
appellate opinion in the same case that had “remanded for further proceedings,” that
“[o]ur opinion left nothing of substance to be done by the trial court with regard to the
monetary award . . . . Our opinion and judgment stand as if the August 2008 judgment
had never been disturbed.”).
In this case, we conclude that there were no meritorious issues remaining for the
trial court to adjudicate and no evidentiary hearings for the trial court to conduct. See
2005 Advisory Comm’n Comment to Tenn. R. Civ. P. 54.04 (noting examples of cases in
which the appellant opinion is not a final disposition on the merits as “cases that are
remanded for a new trial or for other proceedings on the merits”). Therefore, pursuant to
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Rule 54.04(2), the Cobbles, as the prevailing parties following the appellate decision,
were required to file their motion for discretionary costs within thirty days of this Court’s
issuance of the mandate on May 16, 2018, or by June 15, 2018. The Cobbles did not file
their motion until September 4, 2018. The trial court did not err by denying the Cobbles’
motion for discretionary costs as untimely.
V. Remand to the BZA
The Cobbles also contend that the trial court erred by declining to remand this case
to the BZA so that the BZA could vacate the variance previously granted to the Moores.
In response, the County and the BZA assert that because all parties are obligated to act in
accordance with the appellate decision and because no further determination from the
BZA is required in this matter, the trial court did not err in finding that it was unnecessary
to remand the case to the BZA. We agree with the County and the BZA on this issue.
In support of their argument, the Cobbles rely on this Court’s decision in Hoover,
Inc. v. Metro. Bd. of Zoning Appeals for Davidson Cty., 955 S.W.2d 52 (Tenn. Ct. App.
1997). Hoover involved the third appeal before this Court of what was initially a zoning
board’s denial of the petitioner’s application for a conditional use permit to operate a
quarry. Hoover, 955 S.W.2d at 52-53. Upon remand from this Court to the trial court in
the second appeal, the trial court remanded to the zoning board “with directions to
consider the operator’s application in light of the record at the original hearing together
with additional evidence of changed conditions in the area since the original hearing.” Id.
at 53. On appeal of the trial court’s decision to allow additional evidence, this Court
determined that the trial court had “correctly remanded the case to the Board with
directions to deliberate and make a decision” but that “the Board’s deliberations should
be limited to the evidence presented at the original hearing.” Id. As the Hoover Court
explained:
The common-law writ of certiorari is a supervisory writ, that
provides the courts with limited options for dealing with error discovered in
the proceedings being reviewed. Because courts should avoid requiring
local zoning authorities to take a particular action except in the most
extraordinary circumstances, the most common judicial remedy in zoning
cases is to remand the case to the zoning agency with instructions
appropriate to the circumstances of the case. 4 Robert M. Anderson,
American Law of Zoning § 27.39, at 598 (3d ed. 1986). Rather than
shouldering the local agency’s responsibilities, the courts should insist that
the agency carry out its task in an appropriate manner. See Sanon v. INS,
52 F.3d 648, 652 (7th Cir. 1995); Rhode Island Higher Educ. Assistance
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Auth. v. Secretary, U.S. Dep’t of Educ., 929 F.2d 844, 857 (1st Cir. 1991).
The goal of a remand should be to place the parties and the agency in the
position they would have been in had the agency not acted improperly. See
Getty v. Federal Sav. & Loan Ins. Corp., 805 F.2d 1050, 1061 (D.C. Cir.
1986); Revelle v. Marston, 898 P.2d 917, 921 (Alaska 1995).
Under the facts of this case, the trial court correctly declined to
direct the Board to issue [the petitioner] the conditional use permit it
requested. However, in light of the interests of these parties and the nature
of the administrative and judicial proceedings that have already occurred,
we have determined that the most appropriate remedy is to remand the case
to the Board with directions to conduct a new hearing based on the existing
record without the introduction of additional factual evidence.
Id. at 55.
We find the facts of the instant action to be significantly distinguishable from
those in Hoover. Among the considerations upon which this Court based its holding in
Hoover was that the reversal of the zoning board’s original decision had been “not
because of defects in the fact-finding process or because the record contained inadequate
evidence to support the Board’s decision, but rather because the Board did not consider
the evidence in a fair and legal manner.” Id. In Hoover, because the zoning board had
not yet fully considered the evidence in reaching its decision, this Court directed that the
zoning board should essentially shoulder its responsibilities and carry out its task in an
appropriate manner. See id. In the instant action, this Court determined in Cobble I that
the BZA’s grant of the variance was not supported by material evidence in the record and
vacated the variance with no further consideration by the BZA required. Cobble I, 559
S.W.3d at 127.
The Cobbles assert that without remand to the BZA, the variance will not be
vacated and could potentially be relied on by a future landowner. To the contrary, we
determine that the variance was vacated by the final disposition of the issue on appeal
and that the appellate court’s judgment stands in place of the trial court’s judgment as an
enforceable order vacating the variance. See Inman, 840 S.W.2d at 932. The Cobbles
have not disputed the County’s and the BZA’s assertion on appeal that all parties,
including the BZA, have “acted in compliance with the orders of the Appellate Court.”
Simply put, there is nothing more for the BZA to do that has not been accomplished by
entry of the appellate court’s opinion and judgment disposing of the issue. The trial court
did not err in declining to remand this matter to the BZA.
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VI. The Moores’ Cost Reimbursement Request
Proceeding pro se, the Moores have filed a one-page “Brief of Appellees” in
which they have repeated the statements they presented in their response, filed in the trial
court, to the Cobbles’ motion for discretionary costs. The Moores assert that they have
followed all instructions received from and all fees demanded by the County and that
they have “not done anything to warrant payment of any costs the Cobble[s] may have
incurred in this lawsuit.” As previously requested from the trial court in their response to
the motion for discretionary costs, the Moores request on appeal that this Court “require
Greene County to reimburse [them] for the costs resulting from the granting of the
variance at issue in this case.”
In its October 2018 final judgment, the trial court did not directly address the
request in the Moores’ response to the motion for discretionary costs. However, the court
did find that the “Appellate Court’s mandate was dispositive of all issues.” Although it is
true that in reviewing pleadings, courts “must give effect to the substance, rather than the
form or terminology of a pleading,” see Stewart, 368 S.W.3d at 462, we determine in this
instance that the Moores’ response did not constitute a proper cross-claim against the
County, pursuant to Tennessee Rule of Civil Procedure 7.01, in that it was not designated
as such and it was not filed until many months after the dispositive issues had been
resolved in Cobble I.
We further determine that on appeal, the Moores have waived any issue
concerning their cost reimbursement request because they have failed to comply with
Tennessee Rule of Appellate Procedure 27 concerning, inter alia, a statement of the
issues presented for review, references to the record, and citations to authorities. See
Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (“Our Courts have
‘routinely held that the failure to make appropriate references to the record and to cite
relevant authority in the argument section of the brief as described by Rule 27(a)(7)
constitutes a waiver of the issue[s] [raised].’” (quoting Bean v. Bean, 40 S.W.3d 52, 55
(Tenn. Ct. App. 2000))). Ergo, the Moores’ cost reimbursement request is denied.
VII. Conclusion
For the reasons stated above, we affirm the trial court’s judgment in its entirety.
The costs on appeal are assessed against the appellants, Michael Cobble and Lora
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Cobble. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the judgment and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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