                                                                                                               03/21/2019
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                      February 20, 2019 Session

 REBECCA M. LITTLE v. THE CITY OF CHATTANOOGA, TENNESSEE

                   Appeal from the Chancery Court for Hamilton County
                     No. 18-0003       Pamela A. Fleenor, Chancellor
                          ___________________________________

                                 No. E2018-00870-COA-R3-CV
                             ___________________________________


Plaintiff appeals the dismissal of her complaint, which ostensibly alleged declaratory
judgment, inverse condemnation, and due process violations. We vacate the dismissal of
Plaintiff’s procedural due process claim because that claim was not actually addressed in
the trial court’s order of dismissal. The trial court’s judgment is affirmed in all other
respects.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                     in Part; Vacated in Part and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which, CHARLES
D. SUSANO, JR., and THOMAS R. FRIERSON, II, JJ., joined.

Rebecca Little, Chattanooga, Tennessee, Pro se.

Melinda Jane Foster and Misty Lavender Foy, Chattanooga, Tennessee, for the appellee,
City of Chattanooga.

                                                 OPINION

                                               Background1



        1
          Because this case was decided on a motion to dismiss, we take the facts from the complaints and
documents attached thereto. See generally Tenn. R. Civ. P. 10.03 (requiring certain documents to be
attached to pleadings and stating that “[e]very exhibit so attached . . . shall be a part of the pleading for all
purposes”); see also Belton v. City of Memphis, No. W2015-01785-COA-R3-CV, 2016 WL 2754407, at
*4 (Tenn. Ct. App. May 10, 2016) (holding that motion to dismiss for failure to state a claim was not
converted into a motion for summary judgment through consideration of documents attached to the
pleading pursuant to Rule 10.03).
        On November 8, 2016, Defendant/Appellee the City of Chattanooga (“the City”)
adopted Resolution No. 28838, updating its right-of-way abandonment policy.2 The
resolution stated that its purpose was to “give guidance to citizens, staff, and elected
officials regarding the closure and abandonment of rights-of-way. It is intended to form a
basis of rationale and process for decisions on right-of-way closure and abandonment
requests.” The resolution further provided that the City’s policy was to only “recommend
the permanent closure and abandonment of rights-of-way when it is demonstrated that the
public has no further need or interest to retain the right-of-way and that its abandonment
is necessary to achieve a significant private or public interest.”

       Resolution No. 28838 thereafter provided specific guidance for how abandonment
issues would be addressed through a tiered classification system. Under Tier 1, for
example, rights-of-way that are dedicated for public use and maintained by the City
cannot be closed or abandoned “unless a suitable replacement is provided.”3 Applications
seeking to abandon a Tier 1 right-of-way “will be reviewed using the review factors and
according to the tenets of this policy.” In contrast, Tier 2 rights-of-way are dedicated for
public use, not maintained by the City, and only partially opened or unopened. These
rights-of-way may be closed following a review of the factors pursuant to the tenets of
the policy. Finally, Tier 3 rights-of-way are not physically opened. These rights-of-way
are reviewed in the same manner as rights-of-way under Tier 2.

       Resolution No. 28838 then detailed specific factors to guide review of closure
applications:

        1.    Width of right-of-way.
        2.    Presence of or potential for the location of utilities.
        3.    Currently open to vehicular, bicycle, or pedestrian traffic.
        4.    Potential for future use or which provides future connections to the
              existing street pattern or could provide needed services, and which are
              integral to the community’s future development (i.e, access to abutting
              property, bypass for other streets, parking, pedestrian connectivity, etc.).
        5.    Type/conditions of surface.
        6.    Does the topography/grade impede the potential use of a right-of-way
              for vehicles, bicycles, or pedestrians?
        7.    Will the closure and abandonment landlock any property. If so, has a
              subdivision plat been submitted which eliminates this situation?
        8.    Identification of a suitable replacement.
        2
            The resolution was not materially different than the previous policy, which was adopted as early
as 1997.
        3
          Resolution No. 28838 generally defines “abandonment” as the “[r]elinquishing [of a] local
government’s right to use or maintain a public right-of-way.” In turn, a “closed” right-of-way is defined
as one that has been abandoned by the local government through an ordinance. We have chosen to use the
terms “abandonment” and “abandoned” in this Opinion for ease of reading.
                                                    -2-
Finally, the resolution provided a specific process for abandonment requests:

        Application. The Regional Planning Agency (RPA) will accept petitions
        for closure and abandonment of any right-of-way created by plat, deed or
        by drawing, by ordinance/resolution and which are of public record
        according to the tenets of this policy.
        Review. Rights-of-way will be reviewed by various public agencies, City
        departments, utility companies, and the Chattanooga Department of
        Transportation (CDOT) according to the tenets of this policy to determine
        its current use and its potential for future development.
        Planning Commission. The Chattanooga-Hamilton County Regional
        Planning Commission will review and make a recommendation to the
        Chattanooga City Council according to the tenets of this policy and the
        recommendations of the reviewers.
        City Council. Based on the recommendation of the planning commission
        and CDOT, City Council will take final action to approve or deny a right-
        of-way closure and abandonment.

        In August 2016, City resident Taylor Vickers petitioned the Chattanooga Regional
Planning Commission (“Planning Commission”) for abandonment of the alley behind her
property at 249 Jarnigan Avenue.4 The stated purpose of the abandonment application
was for abutting property owners to add onto their property. In September 2016, property
owners affected by the application received a letter notifying them that Ms. Vickers had
filed an application for the abandonment of the alley. The notice indicated that property
owners could attend a public hearing of the Planning Commission on October 10, 2016 to
either “support or oppose the proposed change.”

        One of these property owners was Plaintiff/Appellant Rebecca Little (“Plaintiff”),
who owns the property located at 412 Thompson Street. Plaintiff’s primary concern was
that the alley provided the best access to her property “for parking and future
development.” According to Plaintiff, although her property is also fronted by a street,
the topography of her property prevents off-street parking in the front of her home due to
a fifteen foot retaining wall that covers the frontage of her property. It does not appear
that Plaintiff’s home has any off-street parking currently or at the time that she purchased
the property in 2016. Plaintiff contends however, that she purchased the property because
the alley made it feasible to create off-street parking in the back of her home in the future.

      The meeting occurred as scheduled on October 10, 2016. Plaintiff and another
neighbor spoke in opposition to the abandonment. On the same day, the Planning

        4
          The application noted that the alley was “[u]nopened” and therefore appears to fall within either
Tier 2 or Tier 3 of the City’s abandonment policy.
                                                   -3-
Commission voted to recommend denying the application for abandonment. Pursuant to
the process outlined in Resolution No. 28838, the issue then came before the Chattanooga
City Council (“City Council”) on November 15, 2016; the issue was deferred so that a
council member could meet with the neighborhood. During this time, Plaintiff was in
communication with council members concerning her opposition to the abandonment.5
At the December 13, 2016 City Council meeting, the ordinance abandoning the subject
alley was passed on the first reading. On December 20, 2016, the ordinance to abandon
the alley was approved upon second reading and thereafter signed by the mayor. The
ordinance specifically provided that it would “take effect two (2) weeks from and after its
passage.” According to Plaintiff, although she was present for these meetings, at neither
the December 13 nor December 20 City Council meeting were residents who opposed the
abandonment allowed to speak.

       On January 2, 2018, Plaintiff filed a complaint for inverse condemnation and
declaratory judgment against the City of Chattanooga (“the City” or “Appellee”) in the
Hamilton County Chancery Court (“trial court”).6 Plaintiff thereafter filed an amended
complaint on January 12, 2018. The amended complaint primarily sought to invalidate
the ordinance, but also requested damages resulting from the interference with her
property. Plaintiff requested this relief on the basis of inverse condemnation, the City’s
failure to comply with Resolution No. 28838 in granting the abandonment application,
failure to show a rational basis for the abandonment ordinance, a violation of the Open
Meetings Act, and violations of both substantive and procedural due process rights under
the Tennessee and United States Constitutions.

       The City responded by filing a motion to dismiss and/or for judgment on the
pleadings, in which it alleged that Plaintiff’s claims for inverse condemnation and
declaratory judgment were improper and time-barred. Specifically, the City argued that
Plaintiff was seeking to challenge a factual determination made in accordance with an
existing law, rather than seeking to invalidate an ordinance itself. As such, the City
alleged that filing a common law writ of certiorari was the proper procedure rather than a
declaratory judgment action, and further alleged that the sixty-day statute of limitation for
filing a writ of certiorari was lapsed. With regard to the Plaintiff’s substantive and
procedural due process claims, the City argued that the passing of the ordinance was a
valid exercise of police power and that Plaintiff had not suffered an injury to any vested
right. Moreover, the City reiterated that even if Plaintiff had a valid due process claim,
the proper remedy would be a writ of certiorari, for which the time to file had passed. In
addressing Plaintiff’s inverse condemnation claim, as well as her claim related to the
Tennessee Open Meetings Act, the City again argued that the claims were time-barred.

        5
           Plaintiff alleges that there was one meeting between a council member and the neighbors in
favor of the abandonment that she was not provided sufficient notice and an opportunity to attend.
        6
          Plaintiff was a law student at time of the filing of the complaint, but was a licensed attorney at
the time of oral argument in this cause.
                                                   -4-
Ultimately, the City asserted that the gravamen of Plaintiff’s complaint was that the
ordinance passed in December of 2016 was invalid and as such, any claims related to the
ordinance should have been brought via a writ of certiorari. Accordingly, the City
asserted that the time to file the writ would have been by February 20, 2017, sixty days
after the passing of the ordinance.

        The trial court entered an order denying the City’s motion for judgment on the
pleadings but granting the motion to dismiss on April 16, 2018, largely adopting the
City’s arguments as to Plaintiff’s claims. Specifically, the trial court found that it lacked
jurisdiction to decide Plaintiff’s claim for declaratory judgment because Plaintiff failed to
join all of the necessary parties, namely, other property owners affected by the ordinance.
The trial court went on to find that the passage of the abandonment ordinance constituted
an administrative decision in that the determination was made pursuant to existing
standards and guidelines. As such, the trial court agreed with the City that Plaintiff should
have filed a petition for a writ of certiorari and that the time to do so had passed. In
addressing Plaintiff’s claim for inverse condemnation, the trial court determined that
Plaintiff had actual notice of the alleged taking when the ordinance was passed on
December 20, 2016, and then had twelve (12) months in which to bring an inverse
condemnation claim. As such, the trial court also concluded that this claim was time-
barred. Finally, the trial court determined that Plaintiff’s allegations with regard to the
Tennessee Open Meetings Act were merely conclusory and failed to state a claim for
which relief could be granted. Plaintiff’s complaint was dismissed in its entirety, and a
timely notice of appeal was filed May 14, 2018.

                                     Issues Presented

       Plaintiff raises several issues, which are taken from her brief and slightly restated:

       1. Whether the trial court applied an incorrect legal standard in
          determining that Plaintiff failed to join necessary parties and in
          subsequently determining that the court lacks subject matter jurisdiction
          to adjudicate the claim.
       2. Whether the trial court committed error in finding that the complaint
          fails to state a justiciable controversy.
       3. Whether the trial court committed a legal error in its determination that
          the City’s street closure was an administrative, rather than legislative
          act, and therefore that Plaintiff should have filed a writ of certiorari
          rather than an action for declaratory judgment.
       4. Whether the trial court subsequently erred in finding that plaintiff failed
          to timely file her complaint.
       5. Whether the trial court erred by holding that Plaintiff failed to timely
          file an action for inverse condemnation.

                                            -5-
       6. Whether the trial court erred in ignoring and dismissing Plaintiff’s claim
          that the City’s adoption of the ordinance violated her procedural due
          process rights.

                                    Standard of Review

      The trial court in this case granted the City’s motion to dismiss on the basis of
both failure to state a claim under Rule 12.02(6) of the Tennessee Rules of Civil
Procedure and lack of subject matter jurisdiction under Rule 12.02(1). According to the
Tennessee Supreme Court,

               A motion to dismiss based upon Tennessee Rule of Civil Procedure
       12.02(6) challenges only the legal sufficiency of the complaint, not the
       strength of the plaintiff’s proof or evidence. Phillips v. Montgomery Cnty.,
       442 S.W.3d 233, 237 (Tenn. 2014) (quoting Webb v. Nashville Area
       Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)).
               A defendant filing a motion to dismiss “admits the truth of all the
       relevant and material allegations contained in the complaint, but ... asserts
       that the allegations fail to establish a cause of action.” Id. (quoting Webb,
       346 S.W.3d at 426 (alteration in original) (internal quotation marks
       omitted)). The resolution of such a motion is determined by examining the
       pleadings alone. Id.
               In adjudicating such motions, courts “must construe the complaint
       liberally, presuming all factual allegations to be true and giving the plaintiff
       the benefit of all reasonable inferences.” Id. (citing Webb, 346 S.W.3d at
       426; Cullum v. McCool, 432 S.W.3d 829, 832 (Tenn. 2013)). A motion to
       dismiss should be granted only if it appears that “‘the plaintiff can prove no
       set of facts in support of the claim that would entitle the plaintiff to relief.’”
       Webb, 346 S.W.3d at 426 (quoting Crews v. Buckman Labs. Int’l, Inc., 78
       S.W.3d 852, 857 (Tenn. 2002)). We review a lower court’s decision on
       such a motion de novo without any presumption of correctness. Phillips,
       442 S.W.3d at 237 (citing Cullum, 432 S.W.3d at 832).

Ellithorpe v. Weismark, 479 S.W.3d 818, 824 (Tenn. 2015). A trial court’s decision to
grant a motion to dismiss on the basis of a lack of subject matter jurisdiction is also
reviewed under the de novo standard. Northland Ins. Co. v. State, 33 S.W.3d 727, 729
(Tenn. 2000). Unlike a motion to dismiss for failure to state a claim, a trial court may
consider matters outside the pleadings in ruling on a motion to dismiss for lack of subject
matter jurisdiction without converting the motion to a motion for summary judgment.
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000); see also Tenn. R. Civ. P.
12.02 (“If, on a motion asserting the defense numbered (6) to dismiss for failure to state a
claim upon which relief can be granted, matters outside the pleading are presented to and

                                             -6-
not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56[.]”).

                                         Discussion

                                              I.

        The parties devote much of their argument to the question of whether Plaintiff’s
challenge to the abandonment ordinance was properly brought as a declaratory judgment
action or should have been treated as a petition for a writ of certiorari. The trial court
ruled that Plaintiff’s action was governed by the sixty-day statute of limitations
applicable to writs of certiorari, rather than the statutes of limitations applicable in
declaratory judgment actions. Plaintiff disagrees and contends that she properly brought
this action as a declaratory judgment action. On the other hand, the City asserts that the
trial court correctly held that Plaintiff’s claim was barred by the writ of certiorari statute
of limitations, or in the alternative, that any declaratory judgment action was also
untimely and/or failed to include necessary parties.

       We begin first with the guidelines governing petitions for writs of certiorari.

Pursuant to Tennessee Code Annotated section 27-8-101,

       The writ of certiorari may be granted whenever authorized by law, and also
       in all cases where an inferior tribunal, board, or officer exercising judicial
       functions has exceeded the jurisdiction conferred, or is acting illegally,
       when, in the judgment of the court, there is no other plain, speedy, or
       adequate remedy.

This statute is commonly referred to as the common law writ of certiorari. State v. Farris,
562 S.W.3d 432, 441 (Tenn. Ct. App. Mar. 9, 2018), perm. app. denied (Tenn. July 19,
2018) (citing Admin. Res., Inc., v. Tenn. Dep’t of Commerce, No. M2010-01199-COA-
R3-CV, 2011 WL 2176387, at *5 (Tenn. Ct. App. June 2, 2011)) (noting that “the
common law writ [is] codified at [Tennessee Code Annotated Section] 27-8-101”). Land
use decisions that are subject to writ of certiorari review are generally reviewed under the
common law writ of certiorari. See, e.g., id. at 444–45 (holding that the common law writ
of certiorari was the proper vehicle for the denial of a building permit); Royal
Properties, Inc. v. City of Knoxville, 490 S.W.3d 1, 6 (Tenn. Ct. App. 2015) (applying
the common law writ of certiorari to an appeal of a planning commission’s decision);
Steppach v. Thomas, 346 S.W.3d 488, 502 (Tenn. Ct. App. 2011) (applying the common
law writ of certiorari standard to an administrative land use decision by the city).

       A petition seeking a writ of certiorari must be filed within sixty days of “the entry
of the order or judgment” in dispute. Tenn. Code Ann. § 27-9-102; see also Gore v.
                                            -7-
Tennessee Dep’t of Correction, 132 S.W.3d 369, 379 (Tenn. Ct. App. 2003) (“This time
limit applies to both common law and statutory writs of certiorari.”). “Failure to file
within the statutory time limit deprives the court of subject matter jurisdiction.” Gore,
132 S.W.3d at 379 (citing Wheeler v. City of Memphis, 685 S.W.2d 4 (Tenn. Ct. App.
1984)). “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.” Tenn. Code Ann. § 27-8-106. Like the sixty-
day time limit, failure to comply with section 27-8-106 deprives the trial court of subject
matter jurisdiction to adjudicate the petition. See Blair v. Tennessee Bd. of Prob. &
Parole, 246 S.W.3d 38, 40–41 (Tenn. Ct. App. 2007) (citing Depew v. King’s Inc., 197
Tenn. 569, 276 S.W.2d 728, 729 (Tenn. 1955)) (“Jurisdiction of this Court is also
predicated upon the verification requirement in section 27-8-106. Neither the trial court
nor the appellate court acquires jurisdiction over the petition unless it is verified under
this section.”).

       Plaintiff does not dispute that she failed to comply with the time period applicable
to petitions for writs of certiorari. Rather, Plaintiff contends that this action does not
involve such a petition, but instead involves an action seeking a declaratory judgment.
Pursuant to Tennessee Code Annotated section 29-14-102(a), “[c]ourts of record within
their respective jurisdictions have the power to declare rights, status, and other legal
relations whether or not further relief is or could be claimed.” Under this authority, “[a]ny
person . . . whose rights, status, or other legal relations are affected by a statute,
municipal ordinance, contract, or franchise, may have determined any question of
construction or validity arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status or other legal relations thereunder.”
Tenn. Code Ann. § 29-14-103.

        “[A] declaratory judgment action is a mere procedural device by which various
types of substantive claims may be asserted.” Brackin v. Sumner County, 814 S.W.2d
57, 6061 (Tenn. 1991). As such, actions under this chapter “‘are not governed by
specific statutes of limitations.’” Nunn v. Tennessee Dep’t of Correction, 547 S.W.3d
163, 177 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Mar. 15, 2018), cert. denied,
139 S. Ct. 446, 202 L. Ed. 2d 315 (2018) (quoting Newsome v. White, No. M2001-
03014-COA-R3-CV, 2003 WL 22994288, at *4 (Tenn. Ct. App. Dec. 22, 2003)). When,
however, “‘a petition for declaratory judgment seeks the same relief that is otherwise
available in another statutory proceeding, then the filing of the declaratory judgment is
governed by the statute of limitations governing that statutory proceeding.’” Id. (citing
Newsome, 2003 WL 22994288, at *4 (quoting Dehoff v. Attorney General, 564 S.W.2d
361, 363 (Tenn. 1978))). “For a declaratory judgment action, the appropriate statute of
limitations depends on the nature of the substantive claims sought to be asserted.” Id. at
175 (citing Taylor v. Reynolds, No. 93-552-I, 1994 WL 256286, at *1 (Tenn. Ct. App.
June 10, 1994)). “‘Where no specific statute of limitations can be identified,’” however,
“‘the general ten-year statute of limitations applies.’” Id. at 188 (quoting Witty v.
                                           -8-
Cantrell, No. E2010-02303-COA-R3-CV, 2011 WL 2570754, at *9 (Tenn. Ct. App. June
29, 2011)).

      The distinction between these two types of actions is subtle but important:
      Actions for certiorari and those for declaratory judgment are distinct forms
      of action to which a petitioner may have recourse, depending on the nature
      of the decision maker involved or of the governmental action from which
      the petitioner seeks relief. An action for certiorari is the proper remedy for a
      party aggrieved by the final order or judgment of an administrative body
      which has acted in a judicial or a quasi-judicial capacity to apply existing
      law to the facts of a particular case.

Walker v. Metro. Bd. Of Parks and Recreation, No. M2007-01701-COA-R3-CV, 2009
WL 5178435, at *8 (Tenn. Ct. App. Dec. 30, 2009). In determining what type of action is
at issue, we are not bound by the caption or description provided by the plaintiff, but
must instead consider what type of claim is alleged “in reality.” Brackin, 814 S.W.2d at
60. As we have explained,

      The distinction between declaratory judgment actions and those brought as
      common law writ of certiorari is that ‘determinations . . . [that] are
      administrative determinations, judicial or quasi-judicial in nature, and are
      accompanied by a record of the evidence produced and the proceedings had
      in a particular case’ are reviewable by certiorari, “whereas, the enactment
      of ordinances or resolutions, creating or amending zoning regulations, is a
      legislative, rather than an administrative, action and is not ordinarily
      accompanied by a record of the evidence, as is the case of an administrative
      hearing.”

Walker, 2009 WL 5178435, at *8 (quoting Fallin v. Knox Cty. Bd. of Comm’rs, 656
S.W.2d 338, 342 (Tenn. 1983)); see also Davis Grp. (MC), Inc. v. Metro. Gov’t of
Nashville & Davidson Cty., 912 S.W.2d 178, 180 (Tenn. Ct. App. 1995). “Where the
relief sought in a declaratory judgment action is the same relief that is available under
common law writ of certiorari, the action will be treated as a certiorari action, and the
requirements of such an action will be applied.” State ex rel. Moore & Assocs., Inc. v.
West, 246 S.W.3d 569, 581 (Tenn. Ct. App. 2005). As such, where an action involves the
application or execution of a law already in existence, the writ of certiorari’s
requirements will apply to the petition. Id. at 576 (“Decisions of those boards are
administrative or quasi-judicial decisions that involve applying the facts of the situation
before the board to the applicable ordinance or requirement, i.e., enforcing, applying, or
executing a law already in existence.”).

       At oral argument, Plaintiff conceded that if the common law writ of certiorari was
the proper vehicle for challenging the City’s action in this case, her action is barred by
                                          -9-
failure to comply with the sixty-day time period provided by section 27-9-102.7 See
Gore, 132 S.W.3d at 379. We note, however, that the trial court ruled that even where the
declaratory judgment action was the proper vehicle for bringing Plaintiff’s claims, the
court was likewise deprived of jurisdiction to consider this action. Because we conclude
that the trial court properly dismissed any purported claim based on the Declaratory
Judgment Act, as discussed in detail infra, we conclude that it is unnecessary to
determine which action was the proper vehicle for the claims in this case: in either event,
the trial court properly dismissed the claims for lack of subject matter jurisdiction. We
therefore proceed to consider whether the trial court had jurisdiction to consider any
purported declaratory judgment action.

                                                       II.

       Like writ of certiorari actions, declaratory judgment actions are subject to specific
statutory requirements. See generally Tenn. Code Ann. § 29-14-102 (governing
        7
           We note that, in her brief, Plaintiff asserts that her failure to comply with the section 27-9-102
limitations period is excused because the ordinance at issue is void, citing Edwards v. Allen, 216 S.W.3d
278, 293 (Tenn. 2007) (“Because the ordinance is void ab initio, a statute of limitations is no defense.”).
In Allen, however, the Tennessee Supreme Court excused the plaintiff from complying with the
applicable statutes of limitation after holding that the defendant county commission lacked jurisdiction to
amend its zoning ordinance under the circumstances. See id. (“Because the altered amendment was
substantial and was not returned to the planning commission for further consideration, the Rutherford
County Board of Commission had no jurisdiction to rezone ninety acres when the public notice described
ten.”). In Edwards, however, the trial court declined to apply the sixty-day statute of limitations
applicable to a writ of certiorari. See id. at 282 (noting that “the chancellor concluded that the suit was
filed after the ten-year statute of limitations, the longest possible period”); see also Fallin v. Knox Cty.
Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn. 1983) (“When a municipal governing body acts under its
delegated police powers either to adopt or amend a zoning ordinance, it acts in a legislative capacity . . .
.”). Thus, it is unclear whether the Edwards holding is applicable to the limitations period in section 27-9-
102. Compare Estate of Brown, 402 S.W.3d 193, 198–99 (Tenn. 2013) (“True statutes of limitations do
not constitute grants of subject matter jurisdiction but rather restrict the powers of a court to act on a
claim over which it has subject matter jurisdiction. A statute of limitations defense challenges the
sufficiency of a particular claim, not the subject matter jurisdiction of the court in which the claim is
filed.”) (citations omitted), with Gore, 132 S.W.3d at 379 (holding that failure to comply with the section
27-9-102 limitations period deprives the court of subject matter jurisdiction); cf. Wheatley v. Martineau,
No. M2013-01704-COA-R3-CV, 2014 WL 1512822, at *4 (Tenn. Ct. App. Apr. 15, 2014) (ruling that the
plaintiff’s failure to comply with section 27-9-102 deprived the court of jurisdiction to consider a
challenge to a 2008 permit, even though the plaintiff asserted that the action was “null and void”).
Plaintiff does not specifically address the applicability of the Edwards holding to a petition for a writ of
certiorari in her appellate brief.
          Moreover, neither Plaintiff’s brief nor her amended complaint contain similar arguments that the
City somehow lacked subject matter jurisdiction to determine the right-of-way abandonment issue,
thereby rendering the statute of limitations irrelevant. “It is not the role of the courts, trial or appellate, to
research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an
argument in support of his or her contention or merely constructs a skeletal argument, the issue is
waived.” Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010).
Given Plaintiff’s failure to properly brief this issue, we decline to consider it.
                                                     - 10 -
declaratory judgment actions). In particular, section 29-14-107(a) provides: “When
declaratory relief is sought, all persons shall be made parties who have or claim any
interest which would be affected by the declaration, and no declaration shall prejudice the
rights of persons not parties to the proceedings.” “Parties seeking declaratory relief must
[] satisfy the more specific requirements of the Declaratory Judgments Act before the
courts have jurisdiction to grant declaratory relief.” Huntsville Util. Dist. of Scott Cty.,
Tenn. v. Gen. Tr. Co., 839 S.W.2d 397, 403 (Tenn. Ct. App. 1992). As a consequence,
this Court has previously explained that “‘[t]he non-joinder of necessary parties is fatal
on the question of justiciability, which, in a suit for a declaratory judgment, is a necessary
condition of judicial relief.’” Id. at 400 (Tenn. Ct. App. 1992) (quoting Wright v.
Nashville Gas & Heating Co., 183 Tenn. 594, 598, 194 S.W.2d 459, 461 (Tenn. 1946)).

       “Proper parties include all those who must be bound by the decree in order to
make it effective and to avoid the recurrence of additional litigation on the same subject.”
Byrn v. Metro. Bd. of Pub. Educ., No. 01-A-019003-CV-00124, 1991 WL 7806, at *5
(Tenn. Ct. App. Jan. 30, 1991) (citing State ex rel. Dossett v. Obion County, 188 Tenn.
538, 552-53, 221 S.W.2d 705, 711 (Tenn. 1949)). “This does not mean, however, all
persons who might be remotely affected need b[e] joined.” Shelby Cty. Bd. of Comm’rs
v. Shelby Cty. Quarterly Court, 216 Tenn. 470, 480, 392 S.W.2d 935, 940 (Tenn. 1965).
“[I]dentifying the necessary parties in a declaratory judgment action is fact intensive and
depends on the type of case and issues involved.” Adler v. Double Eagle Properties
Holdings, LLC, No. W2010-01412-COA-R3-CV, 2011 WL 862948, at *5 (Tenn. Ct.
App. Mar. 14, 2011). Thus, “the trial court has discretion to determine who should be
made parties to proceedings for declaratory judgment as well as whether to grant or deny
a declaratory judgment.” Timmins v. Lindsey, 310 S.W.3d 834, 839 (Tenn. Ct. App.
2009) (citing Huntsville Utility, 839 S.W.2d at 399). “Absent an abuse of that discretion,
a declaration should not be disturbed on appeal.” Id. (citing Huntsville Utility, 839
S.W.2d at 399).

        The trial court in this case determined that the other landowners affected by the
alley abandonment were indispensible parties under section 29-14-107(a). Plaintiff
asserts that Tennessee caselaw supports her argument that the other landowners were not
indispensible parties because their interests were protected by either Plaintiff or the City
in this litigation. We conclude that Plaintiff’s reliance on Tennessee caselaw in support of
her argument is misplaced. For example, Plaintiff cites Tennessee Farmers Mut. Ins. Co.
v. Debruce, No. E2017-02078-COA-R3-CV, 2018 WL 3773912 (Tenn. Ct. App. Aug. 9,
2018), perm. app. granted (Jan. 16, 2019), for the proposition that “[o]nly a party who
will be directly affected by a decree and whose interest is not represented by any other
party to the litigation is an indispensable or necessary party, that is, one without which no
valid decree may be entered settling the rights between the parties that are before the
Court[.]” Id. at *3, n.4 (citing Brewer v. Lawson, 569 S.W.2d 856, 858 (Tenn. Ct. App.
1978)) The Debruce court, however, did not cite this proposition as substantive law
applicable in the declaratory judgment context but merely as an explanation of the use of
                                             - 11 -
the terms “necessary party” and “indispensable party.” Id. (“The courts of this state have
traditionally utilized the terms ‘necessary party’ and ‘indispensable party’
interchangeably.”). Indeed, the case cited by the Debruce Court in support of this
proposition did not involve necessary parties under section 29-14-107, but in a typical
civil action governed by the Tennessee Rules of Civil Procedure. See Brewer, 569
S.W.2d at 858 (in a case involving quiet title and the award of damages with no mention
of a request for a declaratory judgment). From our review, cases applying this language
generally involve necessary parties under Rule 19.01 of the Tennessee Rules of Civil
Procedure,8 rather than section 29-14-107. See Raines Bros. v. Chitwood, No. E2013-
02232-COA-R3-CV, 2014 WL 3029274, at *6 (Tenn. Ct. App. July 3, 2014) (citing the
Brewer language in the context of Rule 19.01); Ralston v. Hobbs, 306 S.W.3d 213, 221
(Tenn. Ct. App. 2009) (same); Moore v. Teddleton, No. W2005-02746-COA-R3-CV,
2006 WL 3199273, at *6 (Tenn. Ct. App. Nov. 7, 2006) (same); In re Estate of Bundren,
No. E2003-02746-COA-R3-CV, 2004 WL 2709154, at *3 (Tenn. Ct. App. Nov. 23,
2004) (citing the Brewer language in the context of Rule 19.01, but holding the issue was
waived); Hemontolor v. Wilson Cty. Bd. of Zoning Appeals, 883 S.W.2d 613, 618
(Tenn. Ct. App. 1994) (citing the Brewer language as applicable in writ of certiorari
action, rather than a declaratory judgment action governed by section 29-14-107); Gilley
v. Jernigan, 597 S.W.2d 313, 318 (Tenn. Ct. App. 1979) (citing the Brewer language in
an ejectment action); cf. Shepherd v. Maximus Entm’t Grp., Inc., No. M2003-01664-
COA-R3-CV, 2005 WL 2138241, at *8 (Tenn. Ct. App. Sept. 1, 2005) (citing a similar
rule taken from Gilley in the context of Rule 19.01); Horton v. Tennessee Dep’t of
Correction, No. M1999-02798-COA-R3-CV, 2002 WL 31126656, at *4 (Tenn. Ct. App.
Sept. 26, 2002) (same). Section 29-14-107, however, “imposes stricter requirements than
those imposed generally by the Tennessee Rules of Civil Procedure requiring the joinder
of indispensable parties in all types of cases.” Timmins, 310 S.W.3d at 839 (citing Tenn.
R. Civ. P. 19.01 & 19.02). Cases analyzing whether a party was indispensible outside of
the declaratory judgment context therefore offer little guidance in the case-at-bar.

      Our research has revealed a far more analogous case, Largen v. City of Harriman,
No. E2017-01501-COA-R3-CV, 2018 WL 3458280 (Tenn. Ct. App. July 17, 2018), no
perm. app filed. In Largen, a property owner filed a declaratory judgment action to
      8
          Rule 19.01 provides as follows:

      A person who is subject to service of process shall be joined as a party if (1) in the
      person's absence complete relief cannot be accorded among those already parties, or (2)
      the person claims an interest relating to the subject of the action and is so situated that the
      disposition of the action in the person's absence may (i) as a practical matter impair or
      impede the person's ability to protect that interest, or (ii) leave any of the persons already
      parties subject to a substantial risk of incurring double, multiple, or otherwise
      inconsistent obligations by reasons of the claimed interest. If the person has not been so
      joined, the court shall order that the person be made a party. If the person properly should
      join as a plaintiff but refuses to do so, he or she may be made a defendant, or in a proper
      case, an involuntary plaintiff.
                                                  - 12 -
challenge an annexation. Id. at *1. In his pleadings, he admitted “that there were ‘untold
numbers of other property owners who are in similar situations’ and who may be
necessary parties.” Id. at *9. As such, the defendant-city filed a motion to dismiss,
arguing inter alia, that the trial court was deprived of jurisdiction over any declaratory
judgment action by the plaintiff-owner’s failure to join indispensible parties. The trial
court found that the lack of indispensible parties could expose the defendant-city to
multiple lawsuits and dismissed the complaint. Id.

       This Court found no abuse of discretion in the trial court’s determination as to
necessary parties. Id. In reaching this result, we rejected the plaintiff-owner’s contention
that “the presence or omission of additional parties would not change the facts of the
case.” Id. As we explained, such a requirement was not necessary under section 29-14-
107(a), which merely requires that other parties have an interest that could be affected by
the sought after declaration, rather than that “a party has material evidence to contribute.”
We also rejected the plaintiff-owner’s contention that he could bypass the necessary
parties procedure because he alleged that the ordinance at issue was void. Instead, we
held that the plaintiff-owner “cannot bypass due process merely because he asserts that
declaratory judgment in his favor is a foregone conclusion.” Id. Under these
circumstances, we concluded that the trial court did not “abuse[] its discretion by
applying an incorrect legal standard, coming to an illogical conclusion, or basing its
finding on an erroneous assessment of the evidence.” Id. (citing Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

        The same is true in this case. Clearly, all the landowners abutting the alley at issue
would be affected by a declaration that the ordinance abandoning the right-of-way is
invalid to the same extent that a declaration invalidating an annexation ordinance would
affect property owners covered by the ordinance. Id. This is particularly true of Ms.
Vickers, the landowner who initially sought abandonment of the alley in order to make
additions to her property, as well as all those other affected owners that supported the
alley abandonment. Plaintiff even admits in her brief that a “separate cause of action”
may be required in which “abutting landowners would be necessary parties to the cause
of action” should the ordinance be declared valid. The purpose of the Declaratory
Judgment Act, however, is to settle uncertainties and avoid “the specter of recurring
litigation.” See Tenn. Code Ann. § 29-14-113 (“This chapter is declared to be remedial;
its purpose is to settle and to afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations; and is to be liberally construed and
administered.”); Reed v. Town of Louisville, No. E2006-01637-COA-R3-CV, 2007 WL
816521, at *2 (Tenn. Ct. App. Mar. 19, 2007) (“This raises the specter of recurring
litigation on the same subject, and declaratory judgment may be refused where, if
rendered, it would not terminate the uncertainty or controversy giving rise to the
proceedings.”). The express purpose of the Declaratory Judgment Act can therefore only
be accomplished if all abutting landowners are made parties to this action. Moreover, we
likewise reject Plaintiff’s contention that her allegation that the ordinance at issue is void
                                             - 13 -
excuses her from complying with the mandates of section 29-14-107(a), given that a
similar argument was rejected in Largen. Largen, 2018 WL 3458280, at *9. Likewise,
we discern nothing in Section 29-14-107(a) that provides that joinder of parties that will
be affected by the declaration is excused so long as those parties’ interests are in line with
another litigant already made a party to the suit.

       In sum, Plaintiff has failed to show that the trial court applied an incorrect legal
standard, came to an illogical conclusion, or based its decision on a clearly erroneous
assessment of the evidence. Lee Med., 312 S.W.3d at 524. As such, to the extent that
Plaintiff’s claims were properly brought as a declaratory judgment action, the trial court
did not abuse its discretion in dismissing those claims due to lack of subject matter
jurisdiction. See Largen, 2018 WL 3458280, at *9 (“[W]e determine that the other
affected landowners were indispensable parties to [the plaintiff’s] complaint and that
their non-joinder deprived the trial court of subject matter jurisdiction over the instant
case.”).9 Consequently, regardless of whether Plaintiff’s claim to invalidate the
abandonment ordinance was properly brought as a declaratory judgment action or a
petition for a writ of certiorari, the trial court simply did not have subject matter
jurisdiction to adjudicate that claim.

                                                    III.

       Plaintiff next argues that her claim for inverse condemnation was improperly
dismissed as untimely. Even assuming arguendo that Plaintiff’s inverse condemnation
claim is separate and distinct from the writ of certiorari and declaratory judgment claims
resolved supra,10 we conclude that the trial court did not err in dismissing this claim as
untimely.11
        9
            Any issues related to the timeliness of the declaratory judgment action are therefore
pretermitted.
         10
            We note that the City does not argue in this appeal that to the extent that Plaintiff’s inverse
condemnation claim is a distinct claim seeking damages, it should be dismissed as improperly joined with
an action seeking a common law writ of certiorari. See Duracap Asphalt Paving Co. Inc. v. City of Oak
Ridge, No. E2017-02414-COA-R3-CV, 2018 WL 4236501, at *2 (Tenn. Ct. App. Sept. 6, 2018)
(“Because a petition for a common law writ of certiorari may not be joined with causes of action invoking
the original jurisdiction of the trial court, the court dismissed Duracap’s claims for declaratory relief,
equitable relief, and damages.”); Brown v. Tennessee Bd. of Prob. & Parole, No. M2005-00449-COA-
R3-CV, 2007 WL 2097548, at *4 (Tenn. Ct. App. July 6, 2007) (citing Byram v. City of Brentwood, 833
S.W.2d 500, 502 (Tenn. Ct. App. 1991)) (“Where an original action for damages has been joined with a
petition for writ of certiorari, the claim for damages should be dismissed at the very outset.”). But see
Wimley v. Rudolph, 931 S.W.2d 513, 516 (Tenn. 1996) (holding that this doctrine should only be applied
when the two claims seek inconsistent relief). From our review, this situation has never been expressly
described as depriving the court of subject matter jurisdiction to adjudicate the joined claims, but rather a
doctrine based on the difficulty of adjudicating the two claims in one action. See, e.g., Duracap, 2018 WL
4236501, at *2 (not expressly holding that this doctrine deprives the trial court of subject matter
jurisdiction); State v. Farris, 562 S.W.3d 432, 447 (Tenn. Ct. App. Mar. 9, 2018), perm. app. denied
(Tenn. July 19, 2018) (same); Byram, 833 S.W.2d at 502 (same); Goodwin v. Metropolitan Board of
                                                   - 14 -
       “Inverse condemnation is the popular description of a cause of action against a
governmental defendant to recover the value of the property which has been taken in fact
by a governmental defendant even though no final exercise of the power of eminent
domain has been attempted by the government.” Johnson v. City of Greeneville, 435
S.W.2d 476, 478 (Tenn. 1968); see also Phillips v. Montgomery Cty., 442 S.W.3d 233,
244 (Tenn. 2014) (holding that the Tennessee Constitution’s protection against takings is
coextensive with the Takings Clause of the Fifth Amendment to the United States
Constitution). Inverse condemnation claims are subject to a one-year statute of limitations
codified at Tennessee Code Annotated section 29-16-124, which provides that actions
involving inverse condemnation “shall be commenced within twelve (12) months after
the land has been actually taken possession of, and the work of the proposed internal
improvement begun[.]” Although “this statute is couched in terms of physical takings, it
applies equally to all takings claims.” B & B Enters. of Wilson Cty., LLC v. City of
Lebanon, 318 S.W.3d 839, 846 (Tenn. 2010) (citing STS/BAC Joint Venture v. City of
Mt. Juliet, No. M2003-00171-COA-R3-CV, 2004 WL 2752809, at *8 (Tenn. Ct. App.
Dec. 1, 2004), perm. app. dismissed (Tenn. Apr. 29, 2005)). Moreover, the Tennessee
Supreme Court has previously held that the one-year statute of limitations above is
applicable in the context of the closing of a road. See Shelby Cty. v. Barden, 527 S.W.2d
124, 127 (Tenn. 1975).

       For the purposes of section 29-16-124, “a ‘taking’ occurs when the ‘injury to . . .
property . . . reasonably appears . . . to be a permanent injury rather than a temporary
one.’” B & B Enters., 318 S.W.3d at 846 (citing Knox Cnty. v. Moncier, 224 Tenn. 361,
367, 455 S.W.2d 153, 156 (Tenn. 1970)). An inverse condemnation cause of action
therefore accrues when the plaintiff “realizes or should reasonably realize that his
property has sustained an injury which is permanent in nature.” Moncier, 455 S.W.2d at
156; see also Bobo v. City of Jackson, 511 S.W.3d 14, 20 (Tenn. Ct. App. 2015) (“The
occurrence of a “taking” or permanent injury within the meaning of the statute is not
necessarily contemporaneous to the manifested harm about which the plaintiff ultimately
complains. If sufficient facts exist to show that the plaintiff should reasonably realize that
some type of permanent injury has occurred, the running of the limitation period will
commence at that point.”). In the context of a regulatory taking claim, the Tennessee
Supreme Court has expressly held that “‘the triggering event [for the running of the
statute of limitations] . . . is the date the landowner knew that the government was


Health, 656 S.W.2d 383, 386–87 (Tenn. Ct. App. 1983) (same). Given the City’s failure to raise this
argument, as well as our decision not to analyze whether this action was properly brought as a writ of
certiorari or declaratory judgment action, we decline to address this issue.
         11
            In this case, the trial court found that Plaintiff sufficiently alleged a taking under applicable
law. Cf. Cash & Carry Lumber Co. v. Olgiati, 215 Tenn. 287, 293, 385 S.W.2d 115, 118 (Tenn. 1964)
(“In the instant case, the proper municipal authority has by ordinance abandoned the street in question. If
complainant’s property has thereby been taken, the remedy is at law in an action for compensation.”). The
City takes no issue with this ruling on appeal and we therefore do not address it.
                                                   - 15 -
depriving it of the economic use of its property.’” B & B Enters., 318 S.W.3d at 846
(quoting STS/BAC Joint Venture, 2004 WL 2752809, at *9).

       Plaintiff asserts that the statute of limitations did not begin to run in this case until
January 3, 2017, the date that the ordinance abandoning the right-of-way actually went
into effect. In support, Plaintiff distinguishes between physical takings and regulatory
takings and appears to argue that this case involves a physical taking, rather than a
regulatory taking. Respectfully, we disagree.

       The United States Supreme Court has previously recognized a distinction between
physical takings and regulatory takings. See generally Brown v. Legal Found.of
Washington, 538 U.S. 216, 233, 123 S. Ct. 1406, 1417, 155 L. Ed. 2d 376 (2003). A
regulatory taking generally encompasses “governmental action which diminishes private
property rights, but which does not amount to a direct appropriation or physical invasion
of private property[.]” Phillips, 442 S.W.3d at 239 (citing Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 537, 125 S. Ct. 2074, 2081, 161 L. Ed. 2d 876 (2005)). “A regulatory
taking results when a governmental regulation places such a burdensome restriction on a
landowner’s use of its property that the government has for all intents and purposes
‘taken’ the property.” B & B Enters., 318 S.W.3d at 845, n.5. In contrast, a physical or
actual taking involves the “physical appropriation of an owner’s property[.]” Black’s Law
Dictionary 1592 (9th ed. 2009).

       The undisputed facts of this case, taken from Plaintiff’s amended complaint and
the documents attached thereto, establish that there was no physical invasion or
appropriation of Plaintiff’s property. The decision to abandon the alley behind Plaintiff’s
property clearly involved a change in the City’s law governing the alley at issue, which
Plaintiff alleges has diminished the use and value of her property. In fact, unlike a
physical taking, in this case, Plaintiff was left with more property following the City’s
decision to abandon the alley, rather than less. See State v. Taylor, 107 Tenn. 455, 64
S.W. 766, 768–69 (1901) (“[I]ts action in that connection was, nevertheless, in legal
contemplation and in fact, an abandonment of its easement . . . , and through that
abandonment the strip of ground in question ceased to be a part of the public street, and
by operation of law reverted to the owner of the ultimate fee.”).The injury, as alleged by
Plaintiff is not the loss of the use of her property due to a physical invasion by the City,
but the loss of the use of her property for the specific purpose of ingress and egress
caused by the City’s reclassification of the property as a right-of-way. We must conclude
that this action involves a regulatory taking. As such, cases and law concerning the
statute of limitations as applied to regulatory takings are helpful to our analysis of this
issue.

       One such case is B & B Enterprises of Wilson County, LLC v. City of Lebanon.
In B & B Enterprises, the plaintiff asserted an inverse condemnation claim predicated on
an alleged regulatory taking. 318 S.W.3d at 845. Specifically, the plaintiff landowner
                                           - 16 -
alleged that a regulatory taking occurred when the defendant-city refused to approve his
subdivision plan, despite the landowner’s compliance with all applicable land use
requirements. Id. at 843. After approving of two initial subdivision plans, the planning
commission declined to approve the final subdivision plans at issue on January 22, 2002,
and then declined to reconsider the decision on February 26, 2002. The plaintiff
thereafter filed a petition for a writ of certiorari regarding the decision, arguing that it was
arbitrary and capricious. Both the trial court and this Court agreed. Id. (citing B & B
Enters. of Wilson Co., LLC v. City of Lebanon, No. M2003-00267-COA-R3-CV, 2004
WL 2916141, at *7 (Tenn. Ct. App. Dec. 16, 2004)).

        On December 2, 2005, the plaintiff landowner filed a separate complaint for
damages on the theory of inverse condemnation. Id. at 844. Eventually, the defendant-
city filed a motion to dismiss the inverse condemnation claim on the basis of the
expiration of the statute of limitation. Id. The trial court denied the motion, ruling that the
inverse condemnation claim did not accrue until the Court of Appeals rendered its
decision on December 16, 2004. Id. The trial court and this Court thereafter granted the
defendant-city’s application for an interlocutory appeal. Id. We reversed the decision of
the trial court and held that the statute of limitations accrued, at the latest, when the initial
petition for a writ of certiorari was filed, April 12, 2002. Id. (citing B & B Enters. of
Wilson Cnty., LLC v. City of Lebanon, No. M2008-00572-COA-R9-CV, 2009 WL
130188, at *3 (Tenn. Ct. App. Jan. 14, 2009)).

        The Tennessee Supreme Court, however, disagreed with both the trial court and
this Court as to the proper accrual date for the plaintiff’s inverse condemnation claim. Id.
at 847. First, the court noted that the plaintiff did not dispute that it had actual notice of
the planning commission’s final decision on February 26, 2002, to decline approval of
the final subdivision plans. Id. The court further concluded that this was the date the
planning commissions’ action should be considered “permanent” notwithstanding that
judicial review was sought of the commission’s decision. Id. As the Court explained,
“‘[a] final decision by the responsible state agency informs the constitutional
determination whether a regulation has deprived a landowner of ‘all economically
beneficial use’ of the property, or defeated the reasonable investment-backed
expectations of the landowner to the extent that a taking has occurred . . . .’” Id. (quoting
Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001)
(citations omitted)); see also e.g., Bobo, 511 S.W.3d at 20 (holding that the plaintiff’s
inverse condemnation action accrued on the date that she acquired property with notice
that it was subject to a demolition order, not the date the demolition actually occurred).
The date of the final municipal decision, therefore, was the date upon which the inverse
condemnation action accrued, and therefore, the date the applicable statute of limitations
began to run.

       The same is true in this case. Here, the undisputed facts in the record show that
Plaintiff had actual notice of the City’s final decision to approve the right-of-way
                                         - 17 -
abandonment on December 20, 2016. Indeed, Plaintiff’s own amended complaint asserts
that the City’s “decision [to pass the ordinance closing the alley] was final, the property
deprivation permanent and no further appeals to the City government available.”
Although the alley was not scheduled to be abandoned until two weeks later, it was on
this date that Plaintiff should have realized that her property suffered an injury that was
permanent in nature. See Moncier, 455 S.W.2d at 156. Stated more succinctly, December
20, 2016, is “the date [Plaintiff] knew that the government was depriving it of the
economic use of its property.” B & B Enters., 318 S.W.3d at 846. Because Plaintiff’s
complaint for inverse condemnation was filed more than one-year following the date her
cause of action accrued, it is untimely. See Tenn. Code Ann. § 29-16-124.

                                                     IV.

        Finally, Plaintiff contends that the trial court erred in dismissing her complaint
without addressing her claims for procedural due process.12 After our review of the trial
court’s order, it does appear that the trial court dismissed Plaintiff’s complaint in its
entirety without specifically ruling on this claim. Although we are inclined to rule that
any due process allegations brought in an attempt to invalidate the ordinance are barred
by the dismissal of Plaintiff’s writ of certiorari and declaratory judgment actions supra, it
appears that the City has not taken this position on appeal.13 Instead, the City argues that
this claim is barred on the basis of: (1) the expiration of the Tennessee Governmental
Tort Liability Act statute of limitations; and (2) its contention that the City met all
procedural due process requirements with regard to the passage of the ordinance. As
previously discussed, it is not our role to craft a litigant’s argument for it. See Sneed, 301
S.W.3d at 615. Because the trial court did not specifically rule on this claim or these
defenses, we conclude that the appropriate remedy is to vacate the dismissal of Plaintiff’s
procedural due process claim and remand to the trial court for reconsideration. Cf.
Whalum v. Shelby Cty. Election Comm’n, No. W2013-02076-COA-R3-CV, 2014 WL
4919601, at *3 (Tenn. Ct. App. Sept. 30, 2014) (citing Reid v. Reid, 388 S.W.3d 292, 294
(Tenn. Ct. App. 2012) (“The jurisdiction of this Court is appellate only; we cannot hear
proof and decide the merits of the parties’ allegations in the first instance.”)) (“[W]e are
constrained to only review those issues that have been decided by the trial court in the
first instance.”).

        12
           Although Plaintiff’s amended complaint, and to a lesser extent, this portion of her brief, also
discuss substantive due process and the Open Meetings Act, Plaintiff did not designate the dismissal of
her substantive due process claim or Open Meetings Act claim as issues in her brief. As such, they are
waived. See Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011) (citing Childress v. Union
Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002)) (“We may consider an issue waived where it is
argued in the brief but not designated as an issue.”).
        13
           In addition, Plaintiff’s complaint is unclear if she is seeking damages related to these violations.
Again, the City does not assert that to the extent that this claim is independent, it should be dismissed as
improperly joined with a petition for a common law writ of certiorari. See Duracap, 2018 WL 4236501,
at *2; Brown, 2007 WL 2097548, at *4.
                                                    - 18 -
                                      Conclusion

      The judgment of the Chancery Court for Hamilton County is affirmed in part and
vacated in part. This cause is remanded to the trial court for further proceedings as are
necessary and consistent with this opinion. Costs of this appeal are taxed to Appellant,
Rebecca M. Little, for which execution may issue if necessary.




                                                  _________________________________
                                                  J. STEVEN STAFFORD, JUDGE




                                         - 19 -
