Depot Property, LLC and Terry C. Cox v. Town of Arlington, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
March 20, 2012 Session
DEPOT PROPERTY, LLC AND TERRY C. COX
v.
TOWN OF ARLINGTON, TENNESSEE
Appeal from the Chancery Court of Shelby County
No. CH0923811 Walter L. Evans, Chancellor
No. W2011-01509-COA-RM-CV - Filed July 12, 2012
This appeal concerns the requirements for a petition for certiorari. This case is on remand
from the Tennessee Supreme Court for reconsideration in light of Board of Professional
Responsibility v. Cawood, 330 S.W.3d 608 (Tenn. 2010). After reviewing the petition for
certiorari in light of the requirements set forth in Cawood, we find that the trial court was
without subject matter jurisdiction to hear this case. Therefore, we vacate the trial court’s
decision and dismiss the case.
Remanded to Intermediate Court from Supreme Court; Judgment of the Chancery
Court is Vacated and Dismissed
H OLLY M. K IRBY, 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.
Edward J. McKenney Jr., Memphis, Tennessee for Respondent/Appellant, Town of
Arlington, Tennessee
Terry C. Cox and F. Auston Wortman, III, Collierville, Tennessee for Petitioner/Appellees,
Depot Property, LLC and Terry C. Cox
OPINION
F ACTS AND P ROCEEDINGS B ELOW
The facts and proceedings in this case are more fully set forth in this Court's Opinion in the
first appeal. See Depot Property, LLC v. Town of Arlington, No. W2010-01488-COA-R3-
CV, 2011 WL 334472; 2011 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 31, 2011)
(hereinafter “Depot Property I”). In brief, on December 3, 2009, Petitioner/Appellees Depot
Property, LLC and Terry C. Cox (hereinafter collectively “Cox”) filed a petition for a
common law writ of certiorari against the Respondent/Appellant Town of Arlington,
Tennessee (“Town”) in the Chancery Court of Shelby County, Tennessee.1 Cox’s petition
sought review of a decision of the Arlington Board of Mayor and Aldermen regarding a
request to rezone land owned by Cox.
After Cox’s petition was filed, the trial court issued the writ of certiorari as requested.2 The
Town then filed the record of its proceedings on Cox’s rezoning application. Depot Property
I, 2011 WL 334472, at *3; 2011 Tenn. App. LEXIS 34, at *10-11. The trial court held a
hearing on the merits and found in favor of Cox. Depot Property I, 2011 WL 334472, at *3-
4; 2011 Tenn. App. LEXIS 34, at *11. The Town then appealed to this Court.
In Depot Property I, this Court reversed the decision of the trial court and upheld the Town’s
decision on Cox’s rezoning application. Depot Property I, 2011 WL 334472, at *8; 2011
Tenn. App. LEXIS 34, at *26. Depot Property then filed an application for appeal to the
Tennessee Supreme Court.
On July 14, 2011, the Tennessee Supreme Court granted Cox’s application for permission
to appeal. It granted Cox’s application “solely for the purpose of remanding the case to the
Court of Appeals for reconsideration as to the trial court’s subject matter jurisdiction to hear
the case, in light of Bd. of Prof’l Responsibility v. Cawood, 330 S.W.3d 608 (Tenn. 2010).”
1
The petition also sought declaratory relief and damages. The parties later consented to the entry of an order
dismissing those claims. See Depot Property I, 2011 WL 334472, at *3 n.5; 2011 Tenn. App. LEXIS 34,
at *10 n.5.
2
The issuance of such a writ is not actually an adjudication of anything; “[i]t is simply an order to the lower
tribunal to file the complete record of its proceedings so the trial court can determine whether the petitioner
is entitled to relief.” Keen v. Tenn. Dep’t of Corr., No. M2007-00632-COA-R3-CV, 2008 WL 539059, at
*2 (Tenn. Ct. App. Feb. 25, 2008) (citing Gore v. Tenn. Dep’t of Corr., 132 S.W.3d 369, 375 (Tenn. Ct.
App. 2003); Hawkins v. Tenn. Dep’t of Corr., 127 S.W.3d 749, 757 (Tenn. Ct. App. 2002)). Once the writ
is granted and the certified record is filed, the trial court adjudicates the merits.
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See Depot Property v. Town of Arlington, No. W2010-01488-SC-R11-CV, 2011 Tenn.
LEXIS 713, at *1 (Tenn. July 14, 2011).
On remand, the parties were given the opportunity to brief the issue enounced by the
Supreme Court and were also permitted to present oral argument. We now consider the issue
on remand.
I SSUES ON A PPEAL AND S TANDARD OF REVIEW
As per the instructions of our Supreme Court in remanding this case, we consider whether
the trial court had subject matter jurisdiction over Cox’s petition for certiorari in light of Bd.
of Prof’l Responsibility v. Cawood, 330 S.W.3d 608 (Tenn. 2010).
Rule 13(b) of the Tennessee Rules of Appellate Procedure provides that appellate review
“generally will extend only to those issues presented for review” by the parties. Under Rule
13(b), however, the appellate court must “also consider whether the trial and appellate court
have jurisdiction over the subject matter, whether or not presented for review” by the parties.
Tenn. R. App. P. 13(b)(2011); First Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d
135, 140 (Tenn. Ct. App. 2001). The question of whether a court has subject matter
jurisdiction is a question of law. Staats v. McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App.
2006). Thus, on appeal, the issue is reviewed de novo with no presumption of correctness
given to the ruling of the lower court. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628
(Tenn. 1999).
A NALYSIS
On remand, Cox argues the second component of Tennessee Code Annotated § 27-8-106,
that the petition “be sworn to,” is merely discretionary. In the alternative, if this Court holds
that such an oath is required, Cox contends that the “oath or affirmation” requirement is
satisfied by the fact that Cox’s signature on the petition is notarized.
As to the requirement that the petition recite that it is the first application for the writ, Cox
notes that Paragraph 2 of the prayer for relief in his petition asks that “a writ of certiorari be
issued.” He argues that this statement in the petition implies that no previous writ had been
issued, and thus satisfies the “first application for the writ” requirement. In the alternative,
Cox cites Talley v. Bd. of Prof’l Resp., 358 S.W.3d 185, 192 (Tenn. 2011), for the
proposition that the trial court may have subject matter jurisdiction even in the absence of a
recitation that the petition is the first application for a writ. Overall, Cox also asks this Court
to hold that the trial court could consider the merits of the case based on the equitable maxim
“equity looks to the intent rather than to the form.”
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Subject matter jurisdiction implicates a court’s power to adjudicate a particular case or
controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Earls v. Mendoza, No.
W2010-01878-COA-R3-CV, 2011 WL 3481007, at *5 (Tenn. Ct. App. Aug. 10, 2011). In
the absence of subject matter jurisdiction, a court cannot enter a valid, enforceable order.
Earls, 2011 WL 3481007, at *5 (citing Brown v. Brown, 281 S.W.2d 492, 497 (Tenn.
1955)). When subject matter jurisdiction is questioned, the court must ascertain whether the
Tennessee Constitution, the Tennessee General Assembly, or the common law have
conferred on it the power to adjudicate the case before it. Earls, 2011 WL 3481007, at *5
(citing Staats, 206 S.W.3d at 542).
The Supreme Court directed us to reconsider the appeal in light of Cawood, so it behooves
us to discuss the holding in Cawood. In Cawood, the disciplinary counsel for the Board of
Professional Responsibility filed a petition for discipline against attorney Cawood. Cawood,
330 S.W.3d at 608. A hearing panel of the Board dismissed the disciplinary counsel’s
petition. Id. The disciplinary counsel then filed a petition for certiorari in chancery court,
seeking judicial review of the hearing panel’s decision. Id. The chancery court ruled against
the disciplinary counsel, and it appealed to the Tennessee Supreme Court. Id.
On appeal, the Cawood Court noted:
[Tennessee Code Annotated §] 27-8-106 sets forth two requirements for
petitions for certiorari, which the Board’s petition did not satisfy. Tennessee
Code Annotated section 27-8-107 states, “The petition for certiorari may be
sworn to before the clerk of the circuit court, the judge, any judge of the court
of general sessions, or a notary public, and shall state that it is the first
application for the writ.” We have held that a court lacks subject matter
jurisdiction over a statutory petition for certiorari that is not supported by oath
or affirmation. Depew v. Kings, Inc., 197 Tenn. 569, 276 S.W.2d 728, 728-29
(1955).
Id. at 609. Declining to make an exception to the requirements for an oath or affirmation and
a recitation that the petition is the first application for the writ, the Cawood Court held:
[T]he petition for certiorari in this matter must be supported by oath or
affirmation and state that it is the first application for the writ. The Board’s
failure to follow the procedures of Tennessee Code Annotated section 27-8-
106 deprives the chancery court of jurisdiction and is fatal to the Board’s
appeal.
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Id. (footnote omitted). For that reason, the Court dismissed the disciplinary counsel’s appeal.
The holding in Cawood has been reaffirmed in subsequent cases. See, e.g., Penn v. Bd. of
Prof’l Resp., No. W2010-01250-SC-R3-BP, 2011 WL 1542989, at *1 (Tenn. Apr. 25, 2011);
Nebel v. Bd. of Prof’l Resp., No. M2010-00420-SC-R3-BP, 2011 WL 197868, at *1 (Tenn.
Jan. 21, 2011).
In the instant case, Terry Cox signed the petition for certiorari, on his own behalf and on
behalf of Depot Property, LLC. Cox’s signature was notarized. The petition does not
include an oath or affirmation by Cox, nor does it state that Cox’s petition is the first
application for the writ.
Cox first argues that the “oath or affirmation” requirement in Section 27-8-106 is merely
discretionary. This contention is squarely at odds with the Supreme Court’s holding in
Cawood. Cawood, 330 S.W.3d at 609 (citing Depew v. King’s Inc., 276 S.W.2d 728, 728-29
(Tenn. 1955)). The requirement cannot be waived, as subject matter jurisdiction cannot be
conferred by waiver or consent. Talley, 358 S.W.3d at 192.
Next, Cox argues rather hopefully that the “oath or affirmation” requirement is satisfied by
the fact that his signature on the petition for certiorari is notarized. Because his signature is
notarized, the petition includes a statement sworn by the notary public, stating that Cox
appeared before the notary and signed the petition as his “free act and deed.” Cox says that
this is an “oath” under Section 27-8-106, so the trial court has subject matter jurisdiction.
We dispatch with this argument as well. In Cason v. Little, this Court explained the
distinction between notarizing a petition and verifying a petition:
There is an important distinction between verifying a petition and notarizing
a petition. Verification helps demonstrate the truth of the petitioner’s
allegations. Notarization, sometimes referred to as the acknowledgment, helps
demonstrate the petition’s proper execution. A petition for a common law
writ of certiorari must not only be verified, but must also be sworn to under
oath, typically through the use of a notary public. This sworn and notarized
statement accompanying the petition must declare that the petition's allegations
are true to the best of the petitioner’s knowledge. . . .
***
It is well settled that the “sworn to” language found at T.C.A. § 27-8-106
requires all petitions for writs of certiorari be verified by an affidavit;
otherwise, neither the lower court, nor the appellate court would obtain
jurisdiction over the petition. Courts have consistently held that the failure of
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the petitioner to verify the petition as required by the Tennessee Constitution
and the Tennessee Code is proper grounds for dismissal.
Cason v. Little, No. W2007-01910-COA-R3-CV, 2008 WL 2065194, at *3-4; 2008 Tenn.
App. LEXIS 287, at *9-11 (Tenn. Ct. App. May 15, 2008) (internal and parenthetical
citations omitted). Thus, the fact that Cox’s signature on the petition is notarized is no
substitute for verification of the petition with an “oath or affirmation” by Cox as the
petitioner.
We conclude, then, that Cox’s petition is not “supported by oath or affirmation” as required.
Cox’s “failure to follow the procedures of Tennessee Code Annotated section 27-8-106
deprives the chancery court of jurisdiction and is fatal to [Cox’s] appeal” of the decision of
the Arlington Board of Mayor and Aldermen. Cawood, 330 S.W.3d at 609. We are left with
little choice but to vacate the trial court’s decision and remand to the trial court with
directions to enter an order dismissing the case for lack of subject matter jurisdiction. This
holding pretermits any other issues raised on remand.
C ONCLUSION
The decision of the trial court is vacated and the cause is remanded for entry of an order of
dismissal. Costs on appeal are assessed against Petitioner/Appellees Depot Property, LLC,
Terry C. Cox, and their surety, for which execution may issue if necessary.
___________________________
HOLLY M. KIRBY, JUDGE
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