                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE



HOME BUILDERS ASSOCIATION            )
                                                             FILED
OF MIDDLE TENNESSEE,                 )
                                     )                      December 15, 1998
      Plaintiff/Appellee,            )      Maury Chancery No. 96-487
                                     )                     Cecil W. Crowson
v.                                   )                   Appellate Court Clerk
                                     )      Appeal No. 01A01-9706-CH-00259
MAURY COUNTY, TENNESSEE,             )
                                     )
      Defendant/Appellee,            )
                                     )
CHARLES W. BURSON, State of          )
Tennessee Attorney General,          )
                                     )
      Defendant/Appellant.           )




            APPEAL FROM THE CHANCERY COURT OF MAURY COUNTY
                         AT COLUMBIA, TENNESSEE


                      THE HONORABLE JIM T. HAMILTON, JUDGE



For the Plaintiff/Appellee,          For the Defendant/Appellant:
Home Builders Association of
Middle Tennessee:

L. Bruce Peden                       John Knox Walkup
Columbia, Tennessee                  Charles L. Lewis
                                     Forrest B. Bigham
                                     Nashville, Tennessee




                                     REVERSED AND REMANDED



                                     HOLLY KIRBY LILLARD, J.



CONCURS:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                             OPINION

       This case is a challenge to the constitutionality of a county tax. After authorizing the tax, the

county adopted a resolution that the tax would not be imposed, and no such taxes have been

collected. The trial court denied the State’s motion to dismiss. We reverse, finding that there is no

justiciable controversy.

       On May 30, 1991, the Maury County Adequate Facilities Tax was passed by the General

Assembly, and enrolled as Chapter No. 118 of the 1991 Private Acts. This Act authorizes the Maury

County Board of Commissioners (“the Commission”) to impose a tax on new development in Maury

County.

       Pursuant to the Act the Maury County Commission ratified and set the tax. However, it later

adopted a resolution declaring that the tax would not be imposed “at this time.” In July 1991, the

Commission formally set the tax rate at $0.00 for both residential and non-residential development,

and also resolved to refund any taxes previously collected. The tax has not been reinstated since

1991, and the evidence in the record establishes that no tax was collected under the Act during the

short period in which the Commission had set a rate.

       Plaintiff/Appellee Homebuilders Association of Middle Tennessee (“Homebuilders”) filed

this action against Maury County under the Declaratory Judgment Act, Tennessee Code Annotated

§§ 29-14-101 to 113, seeking a declaratory judgment that the tax is unconstitutional, and seeking an

injunction prohibiting Maury County from implementing or collecting taxes under the Act. The suit

also names the State Attorney General as a defendant, because the suit challenges the

constitutionality of an act of the General Assembly.

       The Defendants filed a motion to dismiss. In the motion, Defendants note that the

Declaratory Judgment Act applies to an actual case or controversy. They maintain that the

challenged tax has never been imposed, and that there is no real threat that it will be imposed.

Therefore, they argue that the case does not involve a justiciable controversy and should be

dismissed. Defendants also argued that the suit should be dismissed because the exclusive statutory

remedy for challenging a county tax is by paying under protest and bringing suit within six months

for a refund, and that Homebuilders failed to do this. See Tenn. Code Ann. §§ 67-1-901; 67-1-912.1



       1
        We note that Tennessee Code Annotated § 67-1-901 and § 67-1-912 were deleted as
obsolete by the Code Commission in 1998 after the parties in this case submitted their appellate
briefs.
The trial court denied Defendants’ motion, but granted their request for interlocutory appeal to this

Court.

         Because this issue involves a question of law, our review is de novo, with no presumption

of correctness. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

         The Tennessee Declaratory Judgment Act grants courts broad powers to construe legislation:

         Any person interested under a deed, will, written contract, or other writings
         constituting a contract, or 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 (1980). However, these powers may be exercised only in cases in

which the parties can establish the existence of a justiciable controversy. See, e.g., Oldham v.

ACLU, 910 S.W.2d 431, 435 (Tenn. App. 1995); Parks v. Alexander, 608 S.W.2d 881, 891-92

(Tenn. App. 1980); Story v. Walker, 218 Tenn. 605, 607-08, 404 S.W.2d 803, 804 (1966); Miller

v. Miller, 149 Tenn. 463, 474, 261 S.W. 965, 972 (1924). The Tennessee Supreme Court has

described a justiciable controversy as follows: “‘[T]he question must be real and not theoretical; the

person raising it must have a real interest, and there must be some one [sic] having a real interest in

the question who may oppose the declaration sought.’” Cummings v. Beeler, 189 Tenn. 151, 223

S.W.2d 913, 915 (1949) (quoting Miller v. Miller, 149 Tenn. 463, 261 S.W. 965, 972 (1924)); see

Oldham v. ACLU, 910 S.W.2d 431, 435 (Tenn. App. 1995).

         In Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949), the Court considered

an act of the legislature that required a state official, the Secretary of State, to spend public funds to

hold a special election. Because the Act had been passed and would otherwise be enforced, the court

held that the Act’s constitutionality was not merely a theoretical question. See id. at 915. The

Cummings Court found that a justiciable controversy existed. In that case, the court found that the

Secretary of State:

         must either obey the mandatory provisions of this law which the Attorney General
         has previously publicly declared as unconstitutional or he must disregard the law
         entirely. If the Secretary of State decides to follow the mandates of the statute and
         spend the public funds and then it develops that the Attorney General was correct in
         his opinion in holding that the law was invalid and unconstitutional, the Secretary of
         State would have spent public funds under the authority of a law which was illegal
         and without effect.

Id. at 915-16. As in this case, the plaintiff in Cummings challenged a statute that had not yet been



                                                     2
enforced. However, in Cummings, there was no doubt that the challenged statute would have been

enforced. Therefore, the threat of enforcement was genuine, not theoretical, creating a justiciable

controversy.   In this case, before the tax can be collected, it must first be set above a rate of zero

by the Commission. There is no indication in the record that the Commission will choose to raise

the rate above zero and enforce the tax statute.

       In Parks v. Alexander, 608 S.W.2d 881, 892 (Tenn. App. 1980), the court stated that “[i]f

the controversy depends upon a future or contingent event or involves a theoretical or hypothetical

state of facts, the controversy is not justiciable under the Tennessee Declaratory Judgments Act.”

(citing Story v. Walker, 218 Tenn. 605, 607-08, 404 S.W.2d 803, 804 (1966); United States Fidelity

& Guaranty Co. v. Askew, 183 Tenn. 209, 212-13, 191 S.W.2d 533, 534-35 (1946)). “The

Declaratory Judgments Act does not give the courts jurisdiction to render advisory opinions to assist

the parties or to allay their fears as to what may occur in the future.” Id.

       In this case, the challenged tax has not been imposed, and there is no indication in the record

that it will be imposed. Therefore, at this time, a controversy exists only in a theoretical sense.

Consequently, there is no justiciable controversy under the Tennessee Declaratory Judgment Act.

The trial court erred in denying the Defendants’ motion to dismiss, and this decision is reversed.

       The remaining issues on appeal are pretermitted by this holding. The cause is remanded to

the trial court for entry of an order granting Defendants’ motion to dismiss.

       The decision of the trial court and is reversed and remanded as set forth above. Costs are

assessed against the Appellee, for which execution issue, if necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:




ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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