                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      On-Brief June 24, 2004

            KENNETH SNELL, ET AL. v. CITY OF MURFREESBORO

                A Direct Appeal from the Circuit Court for Rutherford County
                    No. 47874    The Honorable Robert E. Corlew, Judge


                     No. M2003-02716-COA-R3-CV - Filed August 27, 2004


        Plaintiffs appeal from trial court’s dismissal of complaint for failure to state a cause of action.
Plaintiffs allege that trial court erred in finding that Plaintiffs had no standing to challenge
annexation ordinance passed by City of Murfreesboro. Finding that the trial court was correct in
determining that Plaintiffs were not entitled to challenge the annexation ordinance under Tennessee
declaratory judgment statute, we affirm.

      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

John Rodgers and James P. Barger of Murfreesboro for Appellants, Kenneth Snell and Twila Snell

Susan Emery McGannon and Richard W. Rucker of Murfreesboro for Appellee, City of
Murfreesboro

                                               OPINION

       On November 7, 2002, the City of Murfreesboro (the “City,” “Defendant,” or “Appellee”)
passed annexation ordinance 02-0A-62 (the “Ordinance”). The Ordinance annexes approximately
twenty-four (24) acres which is slated to be developed into a residential subdivision and
approximately 1,600 feet of New Salem Road right-of-way. Kenneth Snell and his wife, Twila Snell,
(the “Snells,” “Plaintiffs,” or “Appellants”) own property directly across the road (i.e. New Salem
Highway) from the annexation area. On February 18, 2003, the Snells filed a “Complaint for
Declaratory Judgment,” seeking to have the Ordinance declared null and void as a violation of
T.C.A. §6-51-101 et seq. Leave to amend the Complaint was granted and the Snells filed their
Amended Complaint on August 22, 2003. The Amended Complaint reads, in relevant part, as
follows:
                        Come now the Plaintiffs, by and through counsel, and file this
                action for declaratory judgment and would show unto the Court the
                following:
        1. Plaintiffs are residents of Rutherford County, Tennessee,
and are owners of property known as 2798 Highway 99, also known
as New Salem Highway.

       2. On November 7, 2002, Respondent, the City of
Murfreesboro passed Ordinance 02-0A-62 on third and final reading,
which annexed approximately twenty-four acres of Parcel 21 on Tax
Map 114, located on the south side of New Salem Highway just to the
west of Kimbro Road.

        3. The annexed property was not contiguous to the then
existing city of Murfreesboro and in order to effect annexation,
approximately 1,600 linear feet of New Salem Highway right-of-way
was included in the annexation so that the property will be contiguous
to the existing city limits.

       4. The right-of-way being annexed does not contain either
people, private property or commercial activity in any of the
approximately 1,600 linear feet.

       5. Defendant claimed authority to annex under Tenn. Code
Ann. § 6-51-101 et seq. but no such authority exists under Tenn.
Code Ann. § 6-51-101 et seq. for Defendant to annex property where
neither people, nor private property nor commercial activity are
included.

        6. Plaintiffs’ rights, status and other legal relations are
depending on a judicial interpretation of Defendant’s actions and said
rights will be impaired if a determination of this issue is not resolved.

       7. There exists an actual controversy between Plaintiffs and
Defendant regarding whether Defendant’s annexation is permitted
under the laws of Tennessee.

       8. Plaintiff would show that at the same time Defendant
approved Ordinance 02-0A-62, Defendant also approved the
residential development of the twenty-four acres. As approved, said
development will include seventy new homes with a proposed
entrance to this subdivision located immediately west of Plaintiffs’
driveway on New Salem Highway. The development will consist of
lower cost homes which are inconsistent with surrounding homes in
the neighborhood. The proposed development will also increase


                                  -2-
               noise, traffic and congestion on New Salem Highway and will result
               in decreased property value for Plaintiff as well as diminish the use
               and enjoyment of his property.

                      9. On such information and belief that such action is not
               permitted under the laws of the State of Tennessee, and is null and
               void, Plaintiffs seek an interpretation of Tennessee law and a
               judgment declaring the actions of Defendant null and void.

                       WHEREFORE PREMISES CONSIDERED, Plaintiff requests
               that:

                      1. Defendant be served with a copy of this complaint and be
               required to answer and plead to the complaint within the time and in
               the manner required by law;

                     2. Upon final hearing in this cause, the Court find that the
               annexation for property located on New Salem Highway west of
               Kimbro Road is not authorized under the laws of the State of
               Tennessee;

                      3. This court enter a judgment declaring the annexation plan
               null and void;

       In response to the Snells’ original Complaint, the City filed a “Motion to Dismiss” on April
21, 2003, along with a Memorandum in support thereof. On July 9, 2003, the Snells filed their
Response to the City’s Motion to Dismiss, along with a Memorandum in support of their position.

         A hearing was held on August 22, 2003. The trial court entered its Order, granting the City’s
Motion to Dismiss on October 27, 2003. The trial court’s reasoning is set out in detail in its opinion
letter of September 12, 2003, which is incorporated by reference into the Order. The opinion letter
reads, in relevant part, as follows:

                       The parties have stipulated that an engineer’s sketch
               accurately illustrates the land in question. Assuming the correctness
               of the sketch and its scale, it appears, as the Plaintiffs have alleged,
               that the City has purported to annex a parcel of land which is in fact
               surrounded on all sides by lands within the county which were not
               previously a part of the city, and which is connected only by a narrow
               portion of land including only the roadway and no other property
               owners....




                                                 -3-
        The record shows that the Plaintiffs are in fact contiguous
landowners, inasmuch as a portion of their property is directly across
the road from the property the City seeks to annex, and the Plaintiffs’
property abuts the road which the City has purported to annex as a
connecting strip between portions of the city limits. It is undisputed
that the Plaintiffs are not landowners of any portion of the land
purported to be annexed....

        The Plaintiffs assert that they are entitled to bring the action
in question, being adjoining landowners. Indeed the provisions of
Tennessee Code Annotated §6-51-103 provides that an action may be
brought by “[A]ny aggrieved owner of property which borders or lies
within territory which is the subject of an annexation ordinance....”
T.C.A. §6-51-103 (a)(1)(A). T.C.A. §6-51-103 (a)(2)(A) provides a
similar benefit, applied only to an “owner of property, lying within
territory which is the subject of an annexation ordinance....” T.C.A.
§6-51-103 (a)(2)(A). Section (B) of that section then limits the
application of the statute to some counties based upon various
populations.... As the City correctly alleges, our Supreme Court in
Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990),
determined a portion of that statute to be unconstitutional, for the
reason that there was no justification for limitation of the application
of the statute based upon populations of counties.... We read the
provisions of T.C.A. §6-51-103 to apply the population limitations
only to the second portion of the statute, and not to the first portion.
The first portion of the statute, however, provides the opportunity for
adjoining landowners to contest the provisions of the annexation
ordinances. Unfortunately for the landowners, the legislature has also
established paragraph (a)(1)(B) which further limits the application
of the first portion of the statute, and provides that it is inapplicable
to counties excluded by the subsequent part of the statute. Our
Supreme Court, thus, declared the entire statute pertinent to our
discussion to be unconstitutional in Hart, supra, at 518. We cannot
find that the legislature has further taken actions concerning the
provisions of T.C.A. §6-51-103 since 1989, and thus we find that we
are bound by the provisions of Hart, supra.... We therefore find that
the provisions of Hart require that “the only property owners allowed
to contest an annexation ordinance by way of the quo warranto
proceeding delineated in T.C.A. §6-51-103 are those who own
property within the annexed area.” State ex rel. Cordova Area
Residents for the Environment v. City of Memphis, 862 S.W.2d 525,
526 (Tenn. Ct. App. 1992), perm. app. denied.



                                  -4-
                ...Because the Supreme Court has declared the provisions of the law
                allowing some citizens of our state who are adjoining landowners to
                contest such actions to be unconstitutional, and because there are no
                other statutes which allow adjacent landowners to contest such
                ordinances, it is our duty to grant the City’s Motion to Dismiss. In
                accordance with the findings both of our Supreme Court and our
                Court of Appeals, as stated above, only if the Plaintiffs were
                landowners within the property subject to the annexation ordinance
                would they be able to maintain a quo warranto action.

        The Snells appeal from the trial court’s grant of the City’s Motion to Dismiss and raise one
issue for review: Whether the trial court was correct in granting the Defendant’s Motion to Dismiss,
dismissing the Plaintiffs’ Complaint for a Declaratory Judgment.

        We first note that a motion to dismiss a complaint for failure to state a claim upon which
relief can be granted tests the legal sufficiency of the complaint. It admits the truth of all relevant
and material allegations but asserts that such allegations do not constitute a cause of action as a
matter of law. See Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997). Obviously, when considering
a motion to dismiss for failure to state a claim upon which relief can be granted, we are limited to
the examination of the complaint alone. See Wolcotts Fin. Sev., Inc. v. McReynolds, 807 S.W.2d
708 (Tenn. Ct. App. 1990). The basis for the motion is that the allegations in the complaint, when
considered alone and taken as true, are insufficient to state a claim as a matter of law. See
Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). In considering such a motion, the court should
construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as
true. See Cook Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994).

       The rights of an aggrieved owner of property to contest an annexation ordinance are set out
in T.C.A.§ 6-51-103 (1998). The statute reads, in relevant part,

        Any aggrieved owner of property ... within territory which is the subject of an
        annexation ordinance prior to the operative date thereof, may file a suit in the nature
        of a quo warranto proceeding in accordance with this part, § 6-51-301 and title 29,
        chapter 35 to contest the validity thereof on the ground that it reasonably may not be
        deemed necessary for the welfare of the residents and property owners of the affected
        territory and the municipality as a whole and so constitutes an exercise of power not
        conferred by law.

Although the Tennessee Legislature amended this statute in 1984 to allow owners of property
bordering annexed property to challenge the validity of the annexation, this amendment was struck
down in its entirety by the Tennessee Supreme Court in the case of Hart v. City of Johnson City,
801 S.W.2d 512 (Tenn. 1990), on the ground that a population classification in the amendment,
excluding residents of certain counties from application of the amendment, had no rational basis.
Therefore, under the statute as it now stands, only owners of property within an annexed territory are


                                                  -5-
permitted to bring a quo warranto proceeding to challenge the validity of the annexation. Appellants
in the case at bar do not own property within the annexed territory, and thus cannot claim the right
to challenge an annexation ordinance under T.C.A. § 6-51-103.

        Appellants assert, however, that they are nonetheless entitled to bring an action for
declaratory judgment under the Tennessee Supreme Court’s holding in Earhart v. City of Bristol,
970 S.W.2d 948 (Tenn. 1998). In Earhart, the Court considered a challenge to nineteen separate
annexation ordinances passed by the city of Bristol, Tennessee. Two of the annexation ordinances
challenged in Earhart included rights-of-way only, and thus there were no residents of the annexed
territory who could bring a quo warranto claim. The Court held that where the remedy of quo
warranto is unavailable to any resident, an annexation ordinance may be challenged using other
remedies, including declaratory judgment, and it is this holding on which the Appellants rely in the
case at bar.

        Unfortunately, Appellants’ reliance upon Earhart is misplaced. Earhart clearly applies only
in those situations where a municipality passes an ordinance that “purports to annex an area that does
not include people, private property, or commercial activity and is, therefore, void.” Id. at 954. When
a municipality passes any such void annexation ordinance, the ordinance may be challenged under
the Declaratory Judgment Act. But such is not the situation in this case. The annexation ordinance
being challenged by Appellants does, in fact, include people and private property; but it does not
include Appellants and their property.

       Because the annexed territory in this case does include people and private property, the quo
warranto remedy is available to challenge the annexation ordinance in question; it is just not
available to Appellants. The alternative remedy of declaratory judgment is therefore not available
to Appellants under the rationale set out in Earhart. Under both T.C.A. § 6-51-103 and Earhart,
Appellants lack legal standing to challenge the annexation ordinance at issue in this litigation.

        As Appellees have noted, Appellants’ underlying concern in this litigation appears to be the
City’s approval of a proposed residential development, which, Appellants suggest, “will result in
decreased property value for Plaintiffs as well as diminish the use and enjoyment of their property.”
Appellants may have other legal avenues available to them to challenge the City’s approval of the
residential subdivision in question. However, since Appellants have chosen to challenge the
annexation ordinance alone, the Court need not address the merits of a possible legal challenge to
such zoning and development decisions.

       Since this is a Tenn. R. Civ. P 12.02 Motion to Dismiss for Failure to State a Claim Upon
Which Relief Can be Granted, this Court is limited to the language of the Amended Complaint.
Under the Amended Complaint, it is in effect alleged that the proposed area for annexation includes
“people, private property and commercial activity.” Therefore, Appellants have no standing to
challenge the annexation ordinance in question by declaratory judgment.




                                                 -6-
        Accordingly, we affirm the trial court’s dismissal of Appellants’ claim. Costs of this appeal
are assessed to the Appellants, Kenneth Snell and Twila Snell, and their surety.


                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                -7-
