                                                                                       05/31/2017




                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                         April 4, 2017 Session1

        TOWN OF COLLIERVILLE, ET AL. v. TOWN OF COLLIERVILLE
                      BOARD OF ZONING, ET AL.

                  Direct Appeal from the Chancery Court for Shelby County
                      No. CH-13-0203-1    Walter L. Evans, Chancellor


                                   No. W2016-02032-COA-R3-CV


This is the third appeal in an ongoing dispute between the Town of Collierville and the
owner of property on which two billboards are situated. On February 12, 2013, the Town
filed a petition for writ of certorari, challenging a decision of the Board of Zoning
Appeals. Because the petition for writ of certorari does not comply with Tennessee Code
Annotated section 27-8-106, the trial court and, therefore, this Court lack subject matter
jurisdiction. We vacate the judgment of the chancery court and dismiss the petition.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated
                                      and Dismissed

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and JEFF PARHAM, SP. J., joined.

Richard L. Winchester, Jr., Memphis, Tennessee, for the appellant, Abbington Center,
LLC.

Taylor Cates, Memphis, Tennessee, for the appellees, Town of Collierville and Town of
Collierville Development Department.

                                                 OPINION


     This is the third appeal regarding two billboards in the Town of Collierville (the
“Town”) on land owned by Abbington Center (“Abbington”). See Town of Collierville v.
Town of Collierville Board of Zoning Appeals, No. W2013-02752-COA-R3-CV, 2015

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    Oral Argument in this case was heard at the University of Tennessee at Martin.
WL 1606712 (Tenn. Ct. App. 2015); Abbington Center, LLC v. Town of Collierville, 393
S.W.3d 170 (Tenn. Ct. App. 2012). Our 2015 opinion regarding these billboards
provides an appropriate recitation of the facts underlying the dispute:

      [T]he billboards were constructed in December 1979. At that time,
      building permits and a sign permit fee were the only requirements for
      construction of a billboard in the Town. On June 24, 1982, the Town
      passed an ordinance prohibiting the construction of any new billboards.

      Abbington purchased the billboards in 1993. Abbington began making
      inquiries as to whether the billboards were “grandfathered in” and could be
      torn down and reconstructed. The Town assured Abbington that the
      billboards were “grandfathered in.”         Shortly thereafter, Abbington
      discovered that the billboards were leased for use by a third party for
      fourteen years, so Abbington did not pursue the matter.

              In 2007, Abbington submitted proposed designs to the Town’s
      Design Review Commission for new billboards to replace the billboards in
      question. The Design Review Commission approved the design with the
      requirement that Abbington obtain building and electrical permits for the
      billboards. Abbington began removing and replacing the old billboards but
      failed to apply for the permits. Therefore, the Town posted “Stop Work”
      orders at the sites for both billboards.

              Abbington subsequently applied for the necessary permits. The
      Town denied the permits on the basis that the billboards did not constitute a
      legal nonconforming use. The Town asserted that there was no proof that
      the requisite permits were obtained for the construction of the billboards in
      1979. Abbington appealed the decision to the Board of Zoning Appeals
      (“BZA”). The BZA affirmed the Town’s stop work orders and the denial
      of the request for building permits.

             Abbington filed a petition for writ of certiorari to the chancery
      court. Following a remand and second hearing before the BZA, the
      chancery court invalidated the stop work orders and permitted Abbington to
      reconstruct the billboards. The Town then appealed to the Court of
      Appeals, but while the appeal was pending, Abbington reconstructed the
      billboards.

             This Court determined that Abbington had not proven that the
      requisite municipal permits had been obtained when the billboards were
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originally constructed in 1979. Therefore, we reversed the decision of the
chancery court and reinstated the decision of the BZA.

       After the decision in this Court, on October 4, 2012, the
Development Department sent a letter to Abbington directing the removal
of the reconstructed billboards because they were in violation of the
Town’s ordinances. In doing so, the Development Department relied upon
this Court’s judgment reinstating the BZA’s decision, which affirmed the
stop work orders and denial of the requested permits. On November 2,
2012, Abbington appealed to the BZA.

        On December 20, 2012, the BZA heard Abbington’s appeal. The
BZA heard testimony from the Development Department employee who
sent the letter and Mr. Stanley T. Trezevant, III, one of the partners of
Abbington. Mr. Trezevant presented a “State of Tennessee Department of
Transportation Outdoor Advertising Device Application and Permit”
stating a sign erection date of December 15, 1979, to demonstrate that the
billboards in question should be grandfathered. He also testified regarding
what he had discovered about the history of the billboards and Abbington’s
ownership of the billboards. The BZA voted 2 - 2 on a motion to affirm the
Development Department’s removal order. Because it was a tie, the motion
to affirm failed, which allowed the billboards to remain.

       Under Ordinance § 151.308(F)(5) of the City of Collierville,
Tennessee Code of Ordinances, “[a]ny officer, agency or department of the
Town . . . or other aggrieved party may appeal any decision of the [BZA] to
a court of competent jurisdiction as provided for by state law.” Collierville,
Tenn., Ordinances § 151.308(F)(5) (2009). On February 12, 2013, the
Town and the Development Department appealed the BZA’s decision, by
writ of certiorari, to the Shelby County Chancery Court naming the BZA
and Abbington as defendants.

       Both the BZA and Abbington filed Rule 12.02(6) motions, pursuant
to the Tennessee Rules of Civil Procedure, to dismiss arguing, among other
things, that the Town and the Development Department did not have
standing to appeal the BZA’s decision. In response, the Town and
Development Department argued that they were aggrieved by the BZA’s
decision because they could not enforce the 1982 ordinance prohibiting the
construction of new billboards.

       On November 5, 2013, the chancery court entered a final judgment
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      in which it dismissed the Town and Development Department’s petition for
      lack of standing.

Town of Collierville, 2015 WL 1606712, at *1-2. On appeal, the Town challenged the
trial court’s ruling that neither the Town nor its Development Department had standing to
challenge “the BZA’s decision not to affirm the removal order issued by the Town and
Development Department for the removal of Abbington’s billboards” and whether the
BZA “acted illegally, arbitrarily, and without material evidence in voting not to affirm
the removal order.” Id. at *3.

       This Court determined that the Town and its Development Department had
standing to seek review of the BZA’s decision. Id. at *6. However, we declined to reach
the Town’s second issue, as the trial court did not reach the merits of the Town’s petition
for certiorari. Id. We remanded the case to the trial court for a decision on the merits.
Id.

       On remand, the trial court determined that the Board of Zoning Appeals’ decision
not to affirm the removal order was arbitrary and capricious because the removal order
was enforcing the Board of Zoning Appeals’ prior rulings that had been affirmed and
reinstated by the Court of Appeals. Abbington appeals.

                                    Issues Presented

      In this appeal, Abbington raises three issues:

      1. Did the trial court have subject matter jurisdiction to hear and decide
         Appellees’ Petition for Writ of Certorari?

      2. Did the trial court err in determining that there did not exist “any
         possible reason” justifying the action taken by the Board of Zoning
         Appeals?

      3. Did the trial court err in failing to find that the Town of Collierville
         should be estopped from ordering the destruction of the subject
         billboards?

                                       Discussion

       We must address Appellant’s first issue -- subject matter jurisdiction -- as a
threshold matter. “The concept of subject matter jurisdiction involves a court’s lawful
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authority to adjudicate a controversy brought before it.” Northland Ins. Co. v. State, 33
S.W.3d 727, 729 (Tenn. 2000) (citations omitted). Subject matter jurisdiction concerns
the basis for a court’s authority to act, and it cannot be waived. Sumner v. Campbell
Clinic P.C., 498 S.W.3d 20, 27 (Tenn. Ct. App. 2016) (citation omitted). “The lack of
subject matter jurisdiction is so fundamental that it requires dismissal whenever it is
raised and demonstrated.” First Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d
135, 141 (Tenn. Ct. App. 2001) (citations omitted). “[W]hen an appellate court
determines that a trial court lacked subject matter jurisdiction, it must vacate the
judgment and dismiss the case without reaching the merits of the appeal.” Id.

       We aptly addressed this issue in Hirt v. Metropolitan Board of Zoning Appeals of
the Metropolitan Government of Nashville and Davidson County, Tennessee, No.
M2015-02511-COA-R3-CV, 2016 WL 7242814 (Tenn. Ct. App. Dec. 15, 2016), perm.
app. denied (Tenn. Apr. 13, 2017):

      In cases such as the present one, a petition for a common-law writ of
      certiorari is the “proper vehicle for seeking judicial review of a decision by
      a local board of zoning appeals.” See Moore v. Metro. Bd. of Zoning
      Appeals, 205 S.W.3d 429, 435 (Tenn. Ct. App. 2006) (citations omitted).
      In Tennessee, the decision to file a petition for a writ of certiorari is
      governed by our State Constitution, as well as a number of statutory
      provisions. In pertinent part, the Tennessee Constitution provides as
      follows:

             The Judges or Justices of the Inferior Courts of Law and
             Equity, shall have power in all civil cases, to issue writs of
             certiorari to remove any cause or the transcript of the record
             thereof, from any inferior jurisdiction, into such court of law,
             on sufficient cause, supported by oath or affirmation.

      Tenn. Const. art. 6, § 10. In accordance with this provision, the Tennessee
      Code provides that the “judges of the inferior courts of law have the power,
      in all civil cases, to issue writs of certiorari to remove any cause or
      transcript thereof from any inferior jurisdiction, on sufficient cause,
      supported by oath or affirmation.” Tenn. Code Ann. § 27-8-
      104(a). Tennessee Code Annotated section 27-8-106 specifically provides
      that 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. When seeking review by certiorari, the
      petition must be filed within sixty days from the order or judgment
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       appealed from. See Tenn. Code Ann. § 27-9-102. “Failure to file the
       petition within this time limit results in the challenged judgment becoming
       final, which deprives a reviewing court of jurisdiction over the matter.”
       Blair v. Tenn. Bd. of Prob. and Parole, 246 S.W.3d 38, 40 (Tenn. Ct. App.
       2007) (citation omitted).

               As is relevant here, a trial court’s jurisdiction is not solely dependent
       on whether the petitioner has timely filed a petition seeking certiorari
       review. Jurisdiction “is also predicated upon the verification requirement
       in section 27-8-106.” Id. at 41. “Neither the trial court nor the appellate
       court acquires jurisdiction over the petition unless it is verified under
       [Tennessee Code Annotated section 27-8-106].” Id. (citations omitted).
       The petitioner “must verify the contents of the petition and swear to the
       contents of the petition under oath, typically by utilizing a notary public.”
        Wilson v. Tenn. Dep’t of Corr., No. W2005-00910-COA-R3-CV, 2006 WL
       325933, at *4 (Tenn. Ct. App. Feb. 13, 2006) (citations omitted). The
       requirement that a petitioner swear to the contents of the petition under oath
       “necessarily connotes that the petitioner is first administered an oath and
       then states in accordance with that oath that the contents of the petition are
       true.” Id. at *3 (citation omitted).

Hirt, 2016 WL 7242814, at *2.

       In this case, Appellant does not dispute that the writ of certiorari was timely filed
within the sixty-day time period provided by Tennessee Code Annotated section 27-9-
102. However, the petition for writ of certiorari filed in this case contained no oath or
verification whatsoever. Rather, the petition for writ of certiorari merely contained the
standard “respectfully submitted” signature of the attorneys representing the Town.

       The Town argues that Brundage v. Cumberland County, 357 S.W.3d 361 (Tenn.
2011) and McCallen v. City of Memphis, 786 S.W.2d 633 (Tenn. 1990), stand for the
proposition that a deficiency in the formal requirements for a petition for writ of certiorari
is not fatal. However, in each of those cases, the question presented was whether a
petition for writ of certiorari or a declaratory judgment action was the appropriate cause
of action. In Brundage, the Tennessee Supreme Court, citing McCallen v. City of
Memphis, noted that “we have permitted an improperly filed petition for declaratory
judgment to be treated as a petition for writ of certiorari, and conversely, we have
allowed an improperly filed petition for writ of certiorari to be treated as a petition for
declaratory judgment.” Brundage, 357 S.W.3d at 371 (citations omitted). In Brundage,
the supreme court noted that while the initial petition was styled as a petition for writ of
certiorari, the body of the petition itself indicated it was actually a petition for declaratory
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judgment. Id. Thus, the court determined that the deficiencies in the technical
requirements for a petition for writ of certiorari were not fatal to the claim.

        The facts in this case are more akin to the Hirt decision than to Brundage. Here,
there is no dispute that a petition for writ of certiorari is the proper procedural vehicle to
challenge the decision of the Board of Zoning Appeals. As such, compliance with the
technical requirements of Tennessee Code Annotated section 27-8-106 was mandatory,
and failure to comply with those requirements deprived the trial court, and this Court, of
subject matter jurisdiction to conduct any judicial review. Abbington’s remaining issues
are, therefore, pretermitted.

                                        Conclusion

        For the foregoing reasons, we conclude that the trial court was without subject
matter jurisdiction in this case. We therefore vacate the trial court’s final order and
dismiss the Town’s petition. This case is remanded to the trial court for the collection of
costs, enforcement of the judgment, and for such further proceedings as may be necessary
and are consistent with this Opinion. Costs of this appeal are assessed against the
Appellees, the Town of Collierville and Town of Collierville Development Department,
for which execution may issue if necessary.


                                                  _________________________________
                                                  BRANDON O. GIBSON, JUDGE




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