Flautt And Mann, a Partnership v. The Council of The City Of Memphis

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 15, 2005 Session

FLAUTT AND MANN, a Partnership v. THE COUNCIL OF THE CITY OF

MEMPHIS, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. 75359-4 T.D. Rita L. Stotts, Judge

No. W2004-01188-COA-R3-CV - Filed April 22, 2005

This appeal involves protracted litigation concerning the zoning of a parcel of land located in

Memphis, Tennessee. After a bridge, which provided the only access to the property, washed away,

the landowner planned to install and maintain billboards on the subject parcel by helicopter. The

landowner initially applied to the Memphis City Council to have the subject parcel re-zoned from

agricultural uses to commercial uses. The Memphis City Council rejected the landowner’s

application. The landowner filed a petition for review by common law writ of certiorari and an

action for declaratory judgment in the circuit court. The circuit court entered an order reversing the

decision of the Memphis City Council and remanding the case to the Council for a new hearing.

Upon remand, the Memphis City Council once again rejected the landowner’s application. The

landowner filed a petition for contempt in the circuit court alleging the Council violated the court’s

order on remand. The trial court found that, while the Memphis City Council violated the court’s

order in every respect, it was not in willful contempt of the court’s order because it relied on the

erroneous advice of its lawyer in interpreting the order. The trial court then proceeded to remand

the case to the Memphis City Council once more for a new hearing. The City filed an appeal. We

reverse the decision of the trial court and remand the case to the trial court for further proceedings

consistent with this opinion.

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

Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S.,

and DAVID R. FARMER , J., joined.

Robert L. J. Spence, Jr., Memphis, TN, for Appellants

William H. Fisher, III, Valerie F. Fisher, Memphis, TN, for Appellee

OPINION

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 1979, Flautt & Mann, a partnership, purchased a parcel of real property currently located

at the intersection of Interstate 240 and Mt. Moriah Road in Memphis, Tennessee. The subject

property, approximately 13.55 acres in size, is presently bounded by Interstate 240 to the north, “old”

Mt. Moriah Road to the west, Nonconnah Creek to the south, and property owned by Shelby County

to the east. According to Flautt & Mann, they originally intended to use the subject property to

develop commercial office buildings. When Flautt & Mann purchased the property, vehicles could

access the parcel by using a bridge from “old” Mt. Moriah Road, a public road, across Nonconnah

Creek.

At some point, the State of Tennessee (“State”) constructed a portion of Interstate 240 to the

north of the subject parcel, and the project included the construction of an interchange at Mt. Moriah

Road. During the course of constructing the new interchange, the State created a new bridge across

Nonconnah Creek which, in turn, limited access to “old” Mt. Moriah Road. The State did, however,

leave the “old” Mt. Moriah Road bridge intact when it completed construction of the interchange.

Thereafter, maintenance of the “old” Mt. Moriah Road bridge ceased. In approximately 1984, the

“old” Mt. Moriah Road bridge leading to the subject parcel collapsed. Following the bridge’s

collapse, no effort was undertaken to rebuild the bridge, and the subject property remained without

vehicle access.1 In approximately 1990, the State filed a condemnation action against Flautt & Mann

in the Circuit Court of Shelby County to acquire a portion of the subject property to widen Interstate

240. In turn, Flautt & Mann filed a claim against the City of Memphis (“City”) seeking a mandatory

injunction ordering the City to restore access to the subject property.

Without vehicle access, the only way to reach the subject property is by helicopter. Flautt

& Mann determined, and the City agreed, that the only economically viable use of the property was

as a site for the construction and maintenance of billboards, which could be accomplished by

helicopter. The City, however, has zoned the subject property for agricultural uses only. On May

10, 1994, Flautt & Mann filed an application with the Memphis and Shelby County Office of

Planning and Development (“OPD”) seeking to have the property re-zoned for either commercial

1

It is estimated that the cost of restoring access to the property by building a new bridge across Nonconnah

Creek would be approximately $2,000,000.00.

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or industrial uses.2 After reviewing the application, OPD recommended that the application be

rejected for the following reasons:

1. The location of the site makes rezoning to the Highway

Commercial District inappropriate. The property has no

available vehicular access to support land uses permitted by

the C-H District including billboards. No access is allowed

for maintenance of signs from the interstate by the TN

Department of Transportation.

2. Rezoning to the C-H District cannot be justified solely for the

purpose of allowing billboards.

3. Billboards on the subject property may be visible over sound

barriers erected behind single family residential properties

north of the expressway creating an adverse visual effect on

those residences.

In fact, OPD’s policy is to reject applications for re-zoning to commercial or industrial designations

when the sole purpose is to construct billboards. The Memphis and Shelby County Land Use

2

It was necessary for Flautt & Mann to file an application for re-zoning due to state law, which provides:

Restrictions on outdoor advertising on interstate and primary highways. —

No outdoor advertising shall be erected or maintained within six hundred sixty feet

(660') of the nearest edge of the right-of-way and visible from the main traveled way

of the interstate or primary highway systems in this state except the following:

(1) Directional or other official signs and notices including, but not limited to, signs

and notices pertaining to natural wonders, scenic and historical attractions which are

authorized or required by law;

(2) Signs, displays and devices advertising the sale or lease of property on which

they are located;

(3) Signs, displays and devices advertising activities conducted on the property on

which they are located;

(4) Signs, displays and devices located in areas which are zoned industrial or

commercial under authority of law and whose size, lighting and spacing are

consistent with customary use as determined by agreement between the state of

Tennessee and the secretary of transportation of the United States; and

(5) Signs, displays and devices located in unzoned commercial or industrial areas

as may be determined by agreement between the state of Tennessee and the

secretary of transportation of the United States and subject to regulations

promulgated by the commissioner.

Tenn. Code Ann. § 54-21-103 (2003). All of the subject property is within 660 feet of Interstate 240, therefore, Flautt

& Mann sought to qualify for the exception in section 54-21-103(4) of the Tennessee Code by having the property re-

zoned.

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Control Board subsequently rejected the application based upon the recommendation of OPD. Flautt

& Mann appealed the rejection of its application to the Memphis City Council.

On November 21, 1995, Flautt & Mann’s application came before the Memphis City

Council. At the hearing, Mary Baker (“Ms. Baker”), Deputy Director of OPD, advised the Memphis

City Council that OPD recommended rejecting the application because the property did not have

adequate vehicle access. In addition, a neighborhood association attended the meeting and offered

testimony in opposition to Flautt & Mann’s application. The Memphis City Council voted five (5)

to four (4) in favor of granting Flautt & Mann’s application, but the application failed because

zoning changes require the approval of a majority of the fifteen member Memphis City Council.

On January 17, 1996, Flautt & Mann filed a “Petition for Certiorari or, in the Alternative, for

Declaratory Judgment” in the Circuit Court of Shelby County. The petition alleged two counts: (1)

that, pursuant to a common law writ of certiorari codified at section 27-8-101 of the Tennessee Code,

the circuit court should find that the Memphis City Council exceeded its jurisdiction or acted

illegally and arbitrarily in denying Flautt & Mann’s application for re-zoning; and (2) that, since the

actions of the Memphis City Council amounted to a taking without just compensation, Flautt &

Mann is entitled to a declaratory judgment to that effect. Flautt & Mann also requested a jury to try

the issues when joined. The circuit court entered a Writ of Certiorari on January 17, 1996,

requesting that the record of the proceedings before the Memphis City Council be certified and sent

to the circuit court for review. On March 20, 1996, the City filed a motion seeking to dismiss the

declaratory judgment count in the petition. The City alleged that the declaratory judgment count

encompassed the same relief sought by Flautt & Mann in its third-party complaint against the City

in the condemnation action filed by the State. On August 27, 2002, the circuit court entered a

consent order transferring the case, which had previously been set for trial by a jury, to the court’s

non-jury calendar.

On March 18, 2003, following a hearing on the matter,3 the trial judge addressed the parties

in open court, stating:

I reviewed the submissions on this matter and it appears to me that

this case should be remanded to the City Council because I do think

their actions were arbitrary in light of evidence concerning the

surrounding properties. It may not have been intentional on their part,

particularly as I said I observed the majority vote was in your client’s

favor, but the ultimate result was still the same. So we’ll see what

happens upon remand. If y’all [sic] will draft the appropriate order.

That same day, the circuit court entered an order containing the following language:

3

On March 10, 2003, the circuit court heard testimony from Judson R. TePaske, a planning consultant, and

entertained ten exhibits introduced during the hearing. On M arch 11, 2003, the circuit court heard argument from

counsel for the parties.

-4-

This Cause came to be heard this day . . . on the petition of .

. . Flautt & Mann, for review by common law certioriari, statutory

certiorari, and/or declaratory judgment of the action of the Memphis

City Council in denying Plaintiff’s request for rezoning of property

owned by it . . . on the hearing on Plaintiff’s petition in open Court;

on the responses of the Defendants to the Plaintiff’s Request for

Admissions; on the testimony of Judson TePaske; and, on the entire

record in this Cause, from all of which the Court makes the following

findings of fact and conclusions of law:

That the denial of the Plaintiff’s request for a change of

zoning from AG to CH is invalid and should be reversed for the

reason that it violates Section 138 of the Charter of the City of

Memphis4 in that the Council failed to consider the complete change

in the character of the neighborhood in which the subject property is

located from AG to CH, and failed to take into account the fact that

the subject [sic] is not suitable for any economically viable use with

its existing AG zoning and is suitable for an economically viable use

only if zoned CH.

The denial of the zoning requested is invalid and should be

reversed for the additional reason that it denies to the Plaintiff the

same CH zoning given almost every other parcel of land in its

relevant neighborhood, and also because it deprives the Plaintiff of

the same commercial and industrial zoning necessary for the

construction of “signs” within 660 feet of an interstate highway, given

many other parcels of property located throughout the City, which are

similarly situated, i.e., which have no vehicular access and on which

“signs” are the only existing structures.

The denial of the zoning requested is invalid and should be

reversed for the further reason that it deprives the Plaintiff of its

reasonable investment-backed expectations for its property (i.e., use

as a commercial site) and deprives the Plaintiff of the only

4

Section 138 of the Charter of the City of Memphis provides:

For each of such districts, regulations may be imposed by ordinance, designating

the uses for which buildings may or may not be erected or altered, and designating

the trades and industries that shall be excluded or subjected to special regulations.

Such regulations shall be in accordance with a plan designated to lessen congestion

on the public streets, to promote the public health, safety, convenience general

welfare, and shall be made with reasonable consideration, among other things, to

the character of the district, its peculiar suitability for particular uses, the

conservation of property values, and the direction of building development.

(emphasis added).

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economically viable use of its property, which is conceded to be use

as a “sign” site.

Since the Council made no findings of fact, it is not possible

to know the basis for its decision in denying the Plaintiff’s request for

change of zoning. However, there were only six reasons for rejection

of Plaintiff’s request advanced by OPD and protestors who appeared

at the Council hearing, and it may therefore be assumed that the

denial of the zoning requested by Plaintiff was based on one or more

of these reasons, which are as follows:

1. That the CH zoning requested would constitute “spot

zoning”;

2. That the subject property lacked vehicular access;

3. That the construction of “signs” on the subject

property are aesthetically displeasing;

4. That CH zoning cannot be justified solely for the

construction of “signs”;

5. That “signs” on the subject property may be seen from

the residential neighborhood to the north of the

subject property; and,

6. That the construction of “signs” on the subject

property would require cutting trees, which would be

detrimental to the environment.

If the Council’s denial of the Plaintiff’s request for CH zoning

was based on any of the grounds enumerated above, the denial is

invalid and should be reversed. . . .

....

On the basis of the foregoing, IT IS, THEREFORE,

ORDERED, ADJUDGED, and DECREED that the decision of the

Council denying the Plaintiff’s requested change of zoning for the

subject property from AG to CH be, and the same is hereby, reversed,

and the Cause is remanded to the City Council with instructions to the

Council to grant the Plaintiff’s request for rezoning of the subject

property from AG to CH.

Counsel for Flautt & Mann drafted the order and inserted the instruction to the Memphis City

Council to grant the requested zoning on remand.

Additionally, the original order contained the following findings: the zoning requested by

Flautt & Mann would not constitute spot zoning; it was unreasonable for the Memphis City Council

to require vehicle access because the zoning ordinances contain no such requirement, and other

property throughout the City has been granted commercial zoning despite lack of vehicle access;

zoning based solely on aesthetic reasons is invalid in Tennessee; the zoning ordinances permit the

construction of signs in commercial zones, therefore, a policy absolutely prohibiting re-zoning for

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the purpose of constructing signs is contrary to law; pictures presented at the hearing conclusively

proved that signs, if constructed on the subject property, could not be seen from the residential

neighborhood to the north due the sound barrier wall on the north side of Interstate 240; and, since

the property is wooded, any use of the property would involve cutting tress, therefore, a denial of

zoning for this reason is invalid.

On April 15, 2003, the City filed a motion, pursuant to Rule 52.02 of the Tennessee Rules

of Civil Procedure, asking the circuit court to clarify whether it intended to order the Memphis City

Council to grant the requested zoning on remand. Flautt & Mann subsequently filed its own motion

to alter and amend the judgment, requesting that the court enter a revised order requiring the City

to pay $439.15 per day from November 21, 1995, until the Memphis City Council granted Flautt &

Mann the requested zoning as damages for the wrongful denial of zoning. The parties argued the

motions before the circuit court over a period of two non-consecutive days.

At one of the hearings held on May 28, 2003, the trial judge made the following statements

to the parties:

I don’t know what the result is going to be, but the point is this, after

hearing the proof it was The Court’s intention that the matter be

remanded to the City Council and as I indicated I don’t think I have

a vote on the City Council. . . . My intent was to remand the case with

the instruction to the City Council that the import of its ruling was

that its decision was arbitrary and capricious.

Now, in terms of how they fix that, I don’t think I have the

choice in terms of telling them how they fix what The Court has

already found to have been an arbitrary and capricious decision. . . .

Certainly I’m not going to change my ruling. But I’m just trying to

make sure that everbody understands what my ruling was or what my

intent was when I made my decision. That’s to remand the case to the

Council. But I don’t think I can tell them you must make X decision.

I think it’s kind of implicit, but I don’t think that my order should tell

them you’ve got to vote a particular way because then I think I would

be infringing on their authority, but the import is the same. Does that

make sense?

....

It seems to me that the order needs to be then amended consistent

with Nance and Hoover, and in the ordering part it seems to me that

there needs to be some language that tracks the language in Hoover

in terms of telling the Council, number one, there’s not to be any new

evidence adduced or whatever, but they’re to make their decision

consistent with my order, and I mean it doesn’t take a rocket scientist

I don’t guess to figure out if I’ve already said that the previous ruling

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was arbitrary and capricious, that I don’t guess it’s going to take a

rocket scientist to figure that out.

On June 16, 2003, the circuit court granted the City’s motion and denied the motion of Flautt

& Mann. That same day, the circuit entered an amended order containing identical findings to the

previous order, but the court removed the mandatory language and inserted the following language

in its place:

On the basis of the foregoing, IT IS, THEREFORE, ORDERED,

ADJUDGED and DECREED that the decision of the Council

denying the Plaintiff’s requested change of zoning for the subject

property is remanded to the City Council, which in accordance with

the holding in Hoover vs. Metropolitan Board of Zoning, 955 S.W.2d

52 (Tenn. App. 1997) is hereby instructed as follows: (1) the Council

is to conduct a new hearing on Plaintiff’s zoning application based

solely on the record in this Court, consisting of the record of the

initial hearing before the Council on November 21, 1995, and the

additional evidence presented at the hearing of this cause; (2) that at

the new hearing, it shall not consider additional evidence of any kind

offered by anyone; (3) that following the new hearing, the Council

shall take action which is consistent with the findings and conclusions

contained in this order; and, (4) that the matter be expedited by the

Council to the maximum extent possible. In making this order, the

Court’s intent is to remand this case to the City Council. The Court

is not directing the Council to make any specific decision or to vote

in any particular way, but is only directing that whatever action is

taken be consistent with the findings and conclusions contained

therein.5

Neither party appealed this final order. Subsequent to the trial court’s amended order, Allan

Wade (“Mr. Wade”), counsel for the Memphis City Council, and William Fisher (“Mr. Fisher”),

counsel for Flautt & Mann, began communicating through numerous letters attempting to identify

the action required by the Memphis City Council on remand. On June 16, 2003, the same day the

trial court entered the amended order, Mr. Fisher wrote a letter to Mr. Wade stating that Flautt &

Mann took the position that, while the amended order stated that the trial court was not ordering the

Memphis City Council to take any particular action on remand, the trial judge implicitly intended

for the council to approve the requested zoning. On June 20, 2003, Mr. Wade drafted a letter to Mr.

Fisher in which he stated:

5

By letter dated June 12, 2003, a few days prior to the entry of the amended order, Mr. Fisher wrote to one of

the City’s attorneys stating that he agreed to the new language in the amended order based on the City’s representations

that the City would not appeal or attempt to sabotage his client’s zoning application on remand.

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Judge Stotts’ Order notwithstanding, the Council has the legislative

discretion, exercisable for a rational basis, to approve or to deny your

client’s application. This has always been my advice to the Council

and will continue to be my advice to the Council. I have an ethical

duty, as do you, to follow the mandates of the Constitution and the

Tennessee Supreme Court. I believe Judge Stotts has a similar

judicial duty.

This verbal jousting continued as Flautt & Mann’s zoning application made its way before the

Memphis City Council on remand.

On remand, the Memphis Planning and Zoning Committee initially addressed Flautt &

Mann’s application on September 16, 2003. Mr. Wade appeared before the committee and presented

a verbal summary of the case to the committee members. While he instructed the committee that

the trial court ordered that reconsideration be limited to the record before the court, Mr. Wade made

the following statement:

I am going to prepare . . . I’m going to ask them to go back out

and look at the property and come back to you with an updated report.

I know this is something that is technically — it may be arguable [sic]

outside the Court’s Orders, but I believe that this body has an

obligation to investigate the public safety, health, and welfare.

I don’t care what a Court tells you to do. And I’ll go back and

argue that one, but I think we need to make sure there are no other

issues that we are going to consider.

When the council recognized the presence of Mr. Fisher at the hearing, Mr. Wade instructed the

committee that, in order to strictly comply with the trial court’s order, they should not hear from Mr.

Fisher. The committee voted to accept Mr. Wade’s recommendation for an updated report on the

subject property and set the matter for another hearing on October 21, 2003.

Ms. Baker sent a memorandum dated October 16, 2003, to Mr. Wade providing, in relevant

part, as follows:

This memo is meant to provide an updated analysis from the Office

of Planning and Development (OPD) regarding an application which

proposed to rezone a 13.55 acre site adjacent to Interstate 240 at Mt.

Moriah Road. . . . Nine years have passed since OPD issued a report

on the application on July 14, 1994.

The following updated comments are based on the agency’s current

view of the file, updated zoning maps and a recent field visit. . . .

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The memorandum went on to state that the property remains inaccessible by vehicle; that Nonconnah

Parkway, not shown on the map in the 1994 report, has been constructed; and contained current maps

showing the subject property and surrounding zoning pattern, stating that the dominant pattern is

residential and agricultural.

On October 21, 2003, the Memphis City Council first addressed Flautt & Mann’s application

for re-zoning on remand. Mr. Wade once again undertook to address the Council members and

summarize the litigation. At this meeting of the Memphis City Council, only seven of the members

currently serving were serving at the time of the original application filed by Flautt & Mann. Due

to the makeup of the existing Council, Mr. Wade stated that he asked OPD to revisit the site to

“make sure there were no safety issues or any other issues relevant.” Mr. Wade provided the

Council members with a copy of the updated OPD report. Additionally, Mr. Wade emphasized to

the Council members the discretionary nature of the language inserted into the trial court’s amended

order. Referencing section 138 of the Charter of the City of Memphis, Mr. Wade urged the Council

to consider this provision and made the following statement:

So — and safety is an issue that this council cannot delegate, whether

a court tells you not to do it or not. It’s something that you have to do

irrespective of whether someone tells you not to do it or not.

Mr. Fisher also addressed the Council and stated his view as to what was required of the Council on

remand. After many of the Council members expressed their confusion about what was expected

on remand, the Memphis City Council voted to send the application back to the zoning committee

for consideration and a hearing on November 18, 2003.

At the hearing before the zoning committee on November 18, 2003, Mr. Wade referenced

a letter he wrote to the Memphis City Council on November 4, 2003, summarizing the trial court’s

order and recommending that the Council members not consider any additional evidence or

arguments. In the letter, Mr. Wade stated that, in his opinion, the trial court was not ordering the

Council members to take any particular action, but they should only reconsider the zoning request

consistent with the trial court’s order. He reiterated that the Memphis City Council should comply

with and consider section 138 of the Charter of the City of Memphis, only consider the record before

the trial court, and they should not entertain arguments from the applicant or opponents to the zoning

request.

The zoning committee refused to hear from Mr. Fisher and refused to consider a

memorandum he prepared and sent to the Council members. The committee members once again

expressed their confusion as to what was required by the Memphis City Council on remand. The

zoning committee voted to send the matter back to the Memphis City Council without a

recommendation, and the matter proceeded to the Memphis City Council that same day. Ms. Baker

of OPD addressed the Council members to give them a “brief overview” of the case. Ms. Baker

referred to the pattern of zoning in the area, and she reiterated the reasons OPD recommended

rejecting the application in 1994. The Council members then proceeded to discuss Flautt & Mann’s

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application for re-zoning. During their discussions, the Council members were conflicted about

exactly what action the trial court ordered them to take on remand. Ultimately, at the November 18,

2003, hearing, the Memphis City Council voted to reject Flautt & Mann’s application for re-zoning.

On January 20, 2004, Flautt & Mann filed a petition for contempt in the circuit court. Flautt

& Mann requested that the trial court find the Memphis City Council in contempt of the court’s

amended order issued on June 16, 2003. Additionally, Flautt & Mann sought compensatory damages

in the amount of $1,500.00 per day from the date of the amended order until such time as the

Memphis City Council granted the requested zoning and their attorney’s fees. Alternatively, Flautt

& Mann noted that, in the amended order, the trial court found that the denial of the requested zoning

amounted to a confiscatory taking of its property and requested that the trial court award damages

for such taking from November 21, 1995, until the zoning is changed by the Memphis City Council.

The City filed a response to the petition for contempt asserting that, on remand, it undertook a good

faith effort to comply with the trial court’s amended order and, therefore, was not in contempt of the

trial court’s order.

On April 7, 2004, the trial court entered an “Order Denying Plaintiff’s Motion for Contempt

and Order Remanding Case to Council for Further Consideration.” The court’s order provided, in

relevant part, as follows:

That on remand of this case to the Council, the Council

violated the Court’s June 16, 2003[,] Order of remand in the various

ways indicated below; but, the transcript of the proceedings before the

Council on remand indicates that the Council, relying on advice of

counsel, misinterpreted the meaning of the Order, and, for that reason,

it is the opinion of the Court that the Defendants were not guilty of

such willful contempt as would warrant the invocation against them

of the severe monetary sanctions sought by Plaintiff. Accordingly, it

is the opinion of the Court that this matter should be sent back to the

Council for reconsideration with instructions to the Council to take

action consistent with the findings and conclusions contained in the

June 16, 2003, Order of this Court, as that Order is interpreted in this

Order. This Order is based upon the following findings and

conclusions of the Court:

....

The case was appealed and following a two-day trial before

this Court in March of 2003, this Court found that the evidence,

(including approximately 100 admissions of the Defendants), was

“overwhelming” that the denial of zoning was improper for a number

of reasons set forth in detail in the Court’s June 16, 2003, Order.

....

Perhaps, the most important finding of the Court for purposes

here was that none of the evidence offered by OPD and the objectors

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at the ‘95 [sic] hearing before the Council justified a denial of the

zoning requested.

The Court directed that on remand the Council “take action

consistent with the findings and legal conclusions contained in the

Order.” This Order was entered on June 16, 2003.

As required by the Court of Appeals in Hoover, (Hoover v.

Metropolitan Bd. of Zoning, 955 S.W.2d 52 (Tenn. App. 1997) (PAD

1997), this Court directed the Council that upon remand, it was to

hear the case on the record at the hearing before the Council in 1995

AND on the record before this Court at the trial in March of 2003;

and, the Council was expressly admonished not to hear “additional

evidence” of any kind offered by anyone.

On remand to the Council, the evidence considered by the

Council consisted of: a “summary” of the 1995 Council Hearing

prepared by the Clerk of the Council under the supervision of the

Council’s attorney; an “updated” report of OPD; a “current” zoning

map; “current” pictures of the area; the testimony of Mary Baker with

OPD; and statements of counsel for the Council.

....

The Plaintiff and its attorneys were denied an opportunity to

be heard at the meetings of the Council and its Zoning Committee, at

which the case was considered, based upon advice of Counsel that the

Order of this Court prohibited the Council from permitting the

Plaintiff or its attorneys to be heard, which is not so.

Based on these findings, the trial court concluded that the City violated the court’s order by

entertaining “new evidence,” thus stepping outside the record as limited by the trial court on remand;

failed to expedite the matter as ordered; failed to give Flautt & Mann a “new hearing” granted in the

court’s order; and denied the application on remand for reasons that the trial court had already

concluded were insufficient reasons for denying the requested zoning. In turn, the trial court ordered

as follows:

That because the Council violated the June 16, 2003, Order of this

Court in the various ways described herein, the Council is hereby

ordered to reconsider the Plaintiff’s application at a hearing to be

conducted pursuant to the Rules of Procedure of the Memphis City

Council and the Court’s June 16, 2003[,] order; and, at that hearing,

the Council shall take action consistent with the findings and

conclusions contained in this Court’s Order of June 16, 2003, as

interpreted in this Order.

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On April 27, 2004, the City filed a notice of appeal to this Court presenting the following

issue for our review:

I. Whether the trial court, in a proceeding for contempt of the court’s order in an action for

common law certiorari, erred in remanding the matter back to the Memphis City Council for

further action when the trial court found that the Appellant’s conduct did not constitute

contempt of the court’s order.

On May 7, 2004, Flautt & Mann filed a motion to alter or amend the judgment with the trial court

contesting the court’s denial of damages for contempt. The trial court subsequently denied this

motion on May 28, 2004.6 Flautt & Mann did not file a notice of appeal in this case, but it has

presented the following additional issues for our review:7

II. Whether the trial court erred in denying the Appellee’s claim for damages stemming from

the Appellant’s contempt; and

III. Whether the trial court erred in denying the Appellee’s claim for damages for the

unconstitutional taking of its property without compensation.

For the reasons set forth more fully herein, we reverse the decision of the trial court regarding the

petition for contempt.

6

Pursuant to the Tennessee Rules of Appellate Procedure, a notice of appeal generally must be field within

thirty (30) days after entry of the judgment appealed from. Tenn. R. App. P. 4(a) (2003). W hen a party files a post-trial

motion pursuant to Rule 52.02 of the Tennessee Rules of Civil Procedure, “the time for appeal for all parties shall run

from the entry of the order denying . . . such motion.” Tenn. R. App. P. 4(b) (2003). “A prematurely filed notice of

appeal shall be treated as filed after the entry of judgment from which the appeal is taken and on the day thereof.” Tenn.

R. App. 4(d) (2003). Accordingly, the notice of appeal filed by the Appellants has been timely filed.

7

The Tennessee Rules of Appellate Procedure provide as follows:

Except as otherwise provided in Rule 3(e), any question of law may be brought up

for review and relief by any party. Cross-appeals, separate appeals, and separate

applications for permission to appeal are not required. Dismissal of the original

appeal shall not preclude issues raised by another party from being considered by

an appellate court.

Tenn. R. App. P. 13(a) (2003). Accordingly, the issues raised by the Appellee are properly before the Court on appeal.

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II.

LAW AND ANALYSIS

A.

The Original Proceeding for Review

Upon reviewing the record in this case, it is apparent to this Court that a myriad of issues not

raised by the parties in the circuit court or on appeal must be addressed before we can properly

dispose of the issues which have been presented for our review.8 We begin with the initial petition

filed by Flautt & Mann in the circuit court requesting a review of the Memphis City Council’s denial

of its application for re-zoning. Flautt & Mann filed a petition in the circuit court entitled “Petition

for Certiorari or, in the Alternative, for Declaratory Judgment.” In the first count in its petition,

Flautt & Mann requested that, pursuant to the common law writ of certiorari, the circuit court review

the actions of the Memphis City Council and enter an order finding such actions illegal, arbitrary,

or capricious. In the second count in its petition, Flautt & Mann requested that the circuit court enter

a declaratory judgment stating that the actions of the Memphis City Council amounted to an

unconstitutional taking of the subject property. Flautt & Mann also requested “[t]hat a jury be

empaneled to try the issues when joined.”

Two forms of certiorari exist in Tennessee: the common law writ of certiorari, provided for

in section 27-8-101 of the Tennessee Code, and the statutory writ of certiorari, provided for in

section 27-8-102 of the Tennessee Code. Fairhaven Corp. v. Tenn. Health Facilities Comm’n, 566

S.W.2d 885, 886 (Tenn. Ct. App. 1976); see also Davison v. Carr, 659 S.W.2d 361, 363 (Tenn.

1983). Unless the legislature has specifically provided for the use of other procedures, the

procedural provisions found in Chapter 9, Title 27 govern review under both the common law and

statutory writs. Fairhaven Corp., 566 S.W.2d at 886. The circuit courts of this state have

concurrent jurisdiction over a proceeding for a review conducted pursuant to either writ. Tenn. Code

Ann. § 27-9-103 (2003).

The legislature has provided that a common law writ may issue under the following

circumstances:

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. . . .

8

W e are mindful that “[r]eview generally will extend only to those issue presented for review.” Tenn. R. App.

P. 13(b) (2003). However, this Court, in its discretion, “may consider other issues in order . . . to prevent needless

litigation . . . and . . . to prevent prejudice to the judicial process.” Tenn. R. App. P. 13(b) (2003); see also Allstate Ins.

Co. v. Watson, No. M2003–01574-COA-R3-CV, 2005 Tenn. App. LEXIS 126 (Tenn. Ct. App. Feb. 25, 2005).

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Tenn. Code Ann. § 27-8-101 (2003). The common law writ of certiorari is an order from a superior

court to an inferior tribunal or board to send up the record for review. Utley v. Rose, 55 S.W.3d 559,

563 (Tenn. Ct. App. 2001). It is an extraordinary remedy which lies within the sound discretion of

the reviewing court to grant. Rhea County v. White, 43 S.W.2d 375, 378 (Tenn. 1931); Utley, 55

S.W.3d at 563; Fite v. State, 925 S.W.2d 543, 544 (Tenn. Ct. App. 1996). The common law writ

of certiorari provides the proper procedural vehicle for reviewing the decisions of a municipal zoning

board. McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990); Fallin v. Knox County Bd.

of Comm’rs, 656 S.W.2d 338, 342 (Tenn. 1983); Lafferty v. City of Winchester, 46 S.W.3d 752, 758

(Tenn. Ct. App. 2000); Hoover v. Metro. Bd. of Zoning Appeals for Davidson County, 955 S.W.2d

52, 54 (Tenn. Ct. App. 1997).

Review under the common law writ of certiorari is generally limited to the record made

before the lower tribunal or board. 421 Corp. v. Metro. Gov’t of Nashville & Davidson County, 36

S.W.3d 469, 474 (Tenn. Ct. App. 2000). “It envisions that the court will review the record

independently to determine whether it contains ‘such relevant evidence that a reasonable mind might

accept as adequate to support a rational conclusion.’” Lafferty v. City of Winchester, 46 S.W.3d 752,

759 (Tenn. Ct. App. 2000) (quoting Hedgepath v. Norton, 839 S.W.2d 416, 421 (Tenn. Ct. App.

1992)). A court reviewing the decision of a local zoning board is not permitted to re-weigh the

evidence, Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980), inquire into the

intrinsic correctness of the lower tribunal’s decision, Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d

478, 480 (Tenn. 1997), or substitute its judgment for that of the lower tribunal or board, 421 Corp.,

36 S.W.3d at 474. On the issue of whether material evidence exists to support the decision of the

lower tribunal or board, the reviewing court is prohibited from receiving new or additional evidence.

Weaver v. Knox County Bd. of Zoning Appeals, 122 S.W.3d 781, 786 (Tenn. Ct. App. 2003); Massey

v. Shelby County Retirement Bd., 813 S.W.2d 462, 465 (Tenn. Ct. App. 1991). When reviewing the

evidentiary basis for a local zoning board’s decision, the question of whether the record contains

material evidence to support the board’s decision becomes a question of law. Lafferty, 46 S.W.3d

at 759; see also Pack v. Royal-Globe Ins. Companies, 457 S.W.2d 19, 22 (Tenn. 1970); Boyce v.

Williams, 389 S.W.2d 272, 276 (Tenn. 1965); Weaver, 122 S.W.3d at 784. The decision of a local

zoning board will only be considered arbitrary when it is determined that the record contains no

evidence to support the decision. Lafferty, 46 S.W.3d at 759 (citing Sexton v. Anderson County, 587

S.W.2d 663, 667 (Tenn. Ct. App. 1979)); Watts, 606 S.W.2d at 276–77. New or additional evidence

may only be received by the reviewing court on the issue of whether the lower tribunal or board

exceeded its jurisdiction or acted in an illegal, arbitrary, or capricious manner. Massey, 813 S.W.2d

at 465; see also Watts, 606 S.W.2d at 277; Weaver, 122 S.W.3d at 786; Domincovitch v. Wilson

County Bd. of Zoning Appeals, No. M1999-02334-COA-R3-CV, 2000 Tenn. App. LEXIS 735, at

*22–23 (Tenn. Ct. App. Nov. 6, 2000); Hemontolor v. Wilson County Bd. of Zoning Appeals, 883

S.W.2d 613, 618 (Tenn. Ct. App. 1994).

In turn, section 29-14-101 et seq. of the Tennessee Code governs declaratory judgments.

“Courts 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.” Tenn. Code Ann. § 29-14-

102(a) (2003). “Any person . . . whose rights . . . are affected by a . . . municipal ordinance . . . may

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. . . obtain a declaration of rights, status or other legal relations thereunder.” Tenn. Code Ann. § 29-

14-103 (2003). “When a proceeding [for declaratory judgment] involves the determination of an

issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried

and determined in other civil actions in the court in which the proceeding is pending.” Tenn. Code

Ann. § 29-14-108 (2003) (emphasis added).

The original petition filed by Flautt & Mann in this case contained a request for the trial

court to review the decision of the Memphis City Council under a common law writ of certiorari as

well as a request that the trial court enter a declaratory judgment. While the City did file a motion

seeking to have the declaratory judgment action dismissed, the basis for that motion was that Flautt

& Mann had pursued the same or similar recovery against the City in the condemnation suit filed by

the State. Even though the trial court moved the case to its non-jury calendar, it apparently

entertained the declaratory judgment action along with undertaking a review of the case by common

law writ of certiorari. The record contains no order addressing the City’s motion. In fact, the

original and amended orders of the trial court state that the court considered Flautt & Mann’s petition

“for common law certiorari, statutory certiorari, and/or declaratory judgment of the action of the

Memphis City Council in denying Plaintiff’s request for rezoning of property owned by it.” In

addition, the trial court, as a “further reason” for reversing the decision of the Memphis City Council,

found that the Memphis City Council “deprived the Plaintiff of its reasonable investment-backed

expectations for its property (i.e., use as a commercial site) and deprives the Plaintiff of the only

economically viable use of its property, which is conceded to be use as a ‘sign’ site.” This appears

to be an attempt by the trial court to grant the relief requested by Flautt & Mann in its request for a

declaratory judgment. Furthermore, we note that, at the hearing on the petition, Flautt & Mann

presented the testimony of Judson R. Tepaske, a planning consultant for land development activities,

and the trial court entertained ten exhibits introduced during the hearing.9 Finally, the trial court’s

order reflects that the trial court made findings of fact in rendering its decision, signaling the

handling of this case as an original action.

9

The record originally filed with this Court did not contain a copy of the transcript of the original hearing

conducted by the Memphis City Council on November 12, 1995. On February 15, 2005, after the Court heard oral

argument in this case, Flautt & Mann filed a motion to supplement the record with a transcript of the original hearing

before the Memphis City Council. The City filed a response stating it had no objection to the record being supplemented

with the transcript. W e, therefore, grant the Appellant’s motion to supplement the record.

Ordinarily, this Court is bound by the same standard of review as the trial court when it reviews a lower

tribunal’s decision under a common law writ of certiorari. Watts v. Civil Serv. Bd. for Columbia, 606 S.W .2d 274, 277

(Tenn. 1980) (“The scope of review by the appellate courts is no broader or more comprehensive than that of the trial

court with respect to evidence presented before the Board.”). T hus, the record before the lower tribunal is crucial to

review by the circuit court as well as this Court. However, for the reasons set forth below, the record of the original

hearing before the Memphis City Council is of little value in resolving the issues presently before the Court. W e do note,

however, that upon reviewing the transcript of the original hearing before the Memphis City Council on November 21,

1995, Mr. Tepaske did not testify at this hearing. Furthermore, upon reviewing the ten exhibits introduced at the circuit

court level, which consisted of Mr. Tepaske’s curriculum vitae and nine maps, we note that these exhibits are not

included in the original record of the proceedings before the Memphis City Council.

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Due to the treatment of this case by the trial court, it is necessary that we once again cite to

a prior decision of this Court where we expressed our disapproval of joining an action for common

law writ of certiorari with one for declaratory judgment:

[W]e wish to heartily condemn that which appears to us to be

a growing practice, i.e., the joinder of an appeal with an original

action and the simultaneous consideration of both at the trial level.

This Court is of the firm opinion that such procedure is inimical to a

proper review in the lower certiorari Court and creates even greater

difficulties in the Court of Appeals. The necessity of a separation of

appellate review of a matter and trial of another matter ought to be

self evident. In the lower Court one is reviewed under appropriate

Appellate rules and the other is tried under trial rules. In this Court

our scope of review is dependent upon the nature of a proceeding. In

this case one matter would be limited by rules of certiorari review and

the other would be reviewed under 13(d), Tennessee Rules of

Appellate Procedure. Like water and oil, the two will not mix.

....

A Declaratory Judgment suit is not one tried before any board

or commission. It is tried in a real Court. That trial is subject to the

Rules of Civil Procedure and rules of evidence. . . . Since the matters

were considered together, how then are we to rule on objections made

at the board hearing to the admissibility of evidence?. . . .

These and other unusual questions are presented by the

unnatural joinder of appellate and original jurisdiction in one

proceeding. . . .

We believe that the continued practice of joining appellate

jurisdiction and original jurisdiction in one hearing will lead to

procedural chaos bogged down in a quagmire of legal conflicts with

reasoned law sinking in the quicksand of confusion.

Goodwin v. Metro. Bd. of Health, 656 S.W.2d 383, 386–87 (Tenn. Ct. App. 1983); see also Winkler

v. Tipton County Bd. Of Educ., 63 S.W.3d 376, 383 (Tenn. Ct. App. 2001); Holzinger v. Indus. Dev.

Bd., No. 01A01-9711-CV-00685, 1999 Tenn. App. LEXIS 8, at *12 (Tenn. Ct. App. Jan. 11, 1999);

Music City Telecom, Inc. v. American-Music Telegroup, No. 01A01-9403-CH-00127, 1994 Tenn.

App. LEXIS 625, at *6–8 (Tenn. Ct. App. Oct. 26, 1994); Byram v. City of Brentwood, 833 S.W.2d

500, 502 (Tenn. Ct. App. 1991).

In any event, we need not address the propriety of the trial court’s handling of the original

petition filed by Flautt & Mann. Tennessee Rule of Appellate Procedure 3(a) provides that “[i]n

civil actions every final judgment entered by a trial court from which an appeal lies to the . . . Court

of Appeals is appealable as of right.” Tenn. R. App. P. 3(a) (2003). Such appeals are initiated by

filing a notice of appeal with the clerk of the trial court. Tenn. R. App. P. 3(e) (2003). The notice

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of appeal “shall be filed with and received by the clerk of the trial court within 30 days after the date

of entry of the judgment appealed from.” Tenn. R. App. P. 4(a) (2003) (emphasis added). The

thirty-day time limit is mandatory and jurisdictional in civil cases. Albert v. Frye, 145 S.W.3d 526,

528 (Tenn. 2004); Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn. 2003). The Tennessee Rules of

Appellate Procedure expressly provide that this Court can neither waive, Tenn. R. App. P. 2 (2003),

nor extend, Tenn. R. App. P. 21(b) (2003), the time for filing the notice of appeal. See Jefferson v.

Pneumo Services Corp., 699 S.W.2d 181, 184 (Tenn. Ct. App. 1985). The failure of a party to

timely file a notice of appeal will deprive this Court of jurisdiction to hear the matter. Searle v.

Pfister, No. M2000-00731-COA-R3-CV, 2000 Tenn. App. LEXIS 817, at *7–8 (Tenn. Ct. App. Dec.

21, 2000) (citing Jefferson, 699 S.W.2d at 184).

Neither party filed a notice of appeal to this Court seeking to contest the trial court’s amended

order. Accordingly, this Court cannot examine the correctness of the trial court’s order on the

original petition filed by Flautt & Mann in this case. In its second issue raised on appeal, Flautt &

Mann asserts that, in the amended order, the trial court found that the actions of the Memphis City

Council amounted to an unconstitutional taking of its property without compensation,10 but the trial

court erred by not awarding damages. Flautt & Mann states that it did not file an appeal regarding

the trial court’s ruling on the original petition because it “fully expected to get the zoning requested

on remand.” (Appellee’s Br. at 102). The “expectations” of a party cannot change the result

compelled by the Tennessee Rules of Appellate Procedure. Since Flautt & Mann did not file a

timely notice of appeal, this Court is without jurisdiction to entertain this issue. See Hemontolor v.

Wilson County Bd. of Zoning Appeals, 883 S.W.2d 613, 618 (Tenn. Ct. App. 1994).

B.

The Petition for Contempt

On June 16, 2003, the trial court amended its original order to comply with this Court’s

holding in Hoover, Inc. v. Metropolitan Board of Zoning Appeals for Davidson County, 955 S.W.2d

52 (Tenn. Ct. App. 1997), wherein we stated:

The common-law writ of certiorari is a supervisory writ, that

provides the courts with limited options for dealing with error

discovered in the proceedings being reviewed. Because courts should

avoid requiring local zoning authorities to take a particular action

except in the most extraordinary circumstances, the most common

judicial remedy in zoning cases is to remand the case to the zoning

agency with instructions appropriate to the circumstances of the case.

Rather than shouldering the local agency’s responsibilities, the courts

should insist that the agency carry out its task in an appropriate

manner. The goal of a remand should be to place the parties and the

10

It is not entirely clear from reading the trial court’s order that the court found that an unconstitutional taking

occurred in this case. Nevertheless, our need to address this issue is pretermitted.

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agency in the position they would have been in had the agency not

acted improperly.

Hoover, 955 S.W.2d at 55 (citations omitted). We went further in Hoover to state that “the most

appropriate remedy is to remand the case to the Board with directions to conduct a new hearing

based on the existing record without introduction of additional factual evidence.” Id. “Reopening

the record at this late stage would only give the parties a second bite at the apple.” Id.

Thus, in an effort to comply with our decision in Hoover, the trial court removed the

mandatory language from its original order and entered an amended order requiring the Memphis

City Council to do the following: (1) conduct a new hearing on Flautt & Mann’s application based

solely upon the record from the initial hearing before the council in 1995 and the additional evidence

presented before the circuit court;11 (2) at the hearing, do not consider any additional evidence of any

kind offered by anyone; (3) following the hearing, take action consistent with the court’s findings

and conclusions contained in the order; and (4) expedite the matter to the maximum extent possible.

Following a hearing on Flautt & Mann’s motion for contempt, the trial court entered an order

on April 7, 2004, denying the petition.12 The trial court found that the Memphis City Council

violated the June 16, 2003, order by: (1) not taking action consistent with her findings and legal

conclusions, specifically finding that the application was out of character with the neighborhood and

would constitute spot zoning when the court found that none of the reasons proffered by OPD and

the objectors for denying the application could justify a denial of zoning; (2) failing to limit the

evidence to the record of the hearing before the Memphis City Council in 1995 and, instead,

entertaining a “summary” of that hearing; (3) entertaining new evidence in the form of an “updated”

report, a “current” zoning map, “current” photos of the area in question, the testimony of Ms. Baker,

and statements by Mr. Wade; (4) failing to expedite the matter to the maximum extent possible on

remand; and (5) failing to provide Flautt & Mann with a new hearing by denying its counsel the right

to be heard concerning the record before the Memphis City Council on remand. However, the trial

court declined to find the Memphis City Council in contempt of the court’s previous order because

the Council’s actions were “based upon erroneous advice of counsel as to the meaning of the Order.”

Despite a finding of no contempt, the trial court decided to remand the case once more to the

Memphis City Council for reconsideration.

“Civil contempt occurs when a person does not comply with a court order and an action is

brought by a private party to enforce rights under the order that has been violated.” Doe v. Bd. of

11

Based on our previous discussion regarding the trial court’s handling of the original petition, we also question

the ability of the trial court to entertain new evidence not presented at the original hearing and then order the lower

tribunal to consider that additional evidence on remand.

12

Counsel for Flautt & Mann argues that it is not entirely clear from reading the trial court’s order whether the

court made a finding of no contempt. The trial court’s order is entitled “Order Denying Plaintiff’s Motion for Contempt

and Order Remanding Case to Council for Further Consideration.” (emphasis added). Accordingly, we find that the trial

court determined that the Memphis City Council was not in contempt of the court’s order.

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Prof’l Responsibility, 104 S.W.3d 465, 473 (Tenn. 2003). Every court in this state has the power

to compel obedience to its judgments or orders. Tenn. Code Ann. § 16-1-102(3) (2003). “For the

effectual exercise of its powers, every court is vested with the power to punish for contempt, as

provided for in this code.” Tenn. Code Ann. § 16-1-103 (2003). Thus, the legislature has provided

as follows:

Scope of power. —

The power of the several courts to issue attachments, and inflict

punishments for contempts of court, shall not be construed to extend

to any except the following cases:

(1) The willful misbehavior of any person in the presence of the court,

or so near thereto as to obstruct the administration of justice;

(2) The willful misbehavior of any of the officers of such courts, in

their official transactions;

(3) The willful disobedience or resistance of any officer of such

courts, party, juror, witness, or any other person, to any lawful writ,

process, order, rule, decree, or command of such courts;

(4) Abuse of, or unlawful interference with, the process or

proceedings of the court;

(5) Willfully conversing with jurors in relation to the merits of the

cause in the trial of which they are engaged, or otherwise tampering

with them; or

(6) Any other act or omission declared a contempt by law.

Tenn. Code Ann. § 29-9-102 (2003) (emphasis added); see also Black v. Blount, 938 S.W.2d 394,

397 (Tenn. 1996) (noting that the legislature codified the inherent common-law power of courts to

punish for contempt, specifically providing those instances when a finding of contempt is

appropriate, in order to thwart the potential for abuse by the courts of this state). Our supreme court

has cautioned the courts of this state, stating:

While the power to punish for contempt may and should be used in

an appropriate case, it should not be used unless the case clearly calls

for its exercise. The power should be exercised only when necessary

to prevent actual, direct obstruction of, or interference with, the

administration of justice.

Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 911–12 (Tenn. 1964); see also Loy v. Loy, 222

S.W.2d 873, 877 (Tenn. Ct. App. 1949).

“The court of appeals also has appellate jurisdiction over civil or criminal contempt arising

out of a civil matter.” Tenn. Code Ann. § 16-4-108(b) (2003); Freeman v. Freeman, 147 S.W.3d

234, 242–43 (Tenn. Ct. App. 2003). This Court has previously noted that, in order to find a party

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in contempt of the court’s order, the lower court must make a threshold finding of willfulness.

Haynes v. Haynes, 904 S.W.2d 118, 120 (Tenn. Ct. App. 1995); see also Ahern v. Ahern, 15 S.W.3d

73, 78 (Tenn. 2000). The determination of whether a party has willfully violated an order of the

court is uniquely within the sound discretion of the court which issued the order. Doe v. Bd. of

Prof’l Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003); Stingray Computer Services, Inc. v.

McFarlane, No. 01-A-01-9207-CH-00284, 1993 Tenn. App. LEXIS 319, at *10 (Tenn. Ct. App.

Apr. 28, 1993) (citing Robinson, 377 S.W.2d at 912). On appeal, we review a lower court’s

decision regarding the existence of contempt in a particular case for an abuse of discretion. Hawk

v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993) (citing Robinson, 377 S.W.2d at 912); Freeman, 147

S.W.3d at 242 (citations omitted). In conducting a review of this nature, we are mindful of the

following:

Discretionary decisions require conscientious judgment. See

BIF v. Service Constr. Co., 1988 Tenn. App. LEXIS 430, 1988 WL

72409, at *2. They must take the applicable law into account and

must also be consistent with the facts before the court. See Overstreet

v. Shoney’s, Inc., 4 S.W.3d at 694. Appellate courts will set aside a

discretionary decision only when the trial court has misconstrued or

misapplied the controlling legal principles or has acted inconsistently

with the substantial weight of the evidence. See Overstreet v.

Shoney’s, Inc., 4 S.W.3d at 695. Thus, a trial court’s discretionary

decision should be reviewed to determine: (1) whether the factual

basis for the decision is supported by the evidence, (2) whether the

trial court identified and applied the applicable legal principles, and

(3) whether the trial court’s decision is within the range of acceptable

alternatives. See BIF v. Service Cosntr. Co., 1988 Tenn. App. LEXIS

430, 1988 WL 72409, at *3. Appellate courts should permit a

discretionary decision to stand if reasonable judicial minds can differ

concerning its soundness. See Overstreet v. Shoney’s, Inc., 4 S.W.3d

at 695.

White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999); see also State v. Looper, 86

S.W.3d 189, 193–94 (Tenn. Ct. App. 2000); State v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App.

2000).

The Tennessee Supreme Court has expressly stated that “the advice of counsel is no excuse

for failure to obey an order of the court, but may be considered in mitigation of the offense if deemed

in good faith.” Robinson v. Air Draulics Eng’g Co., Inc., 377 S.W.2d 908, 911 (Tenn. 1964); see

also Nelms v. Weaver, No. 2, 1986 Tenn. App. LEXIS 3352, at *5 (Tenn. Ct. App. Oct. 8, 1986);

Garrett v. Forest Lawn Mem’l Gardens, Inc., 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979). The trial

court failed to identify and apply the correct legal principle to Flautt & Mann’s petition for contempt.

White, 21 S.W.3d at 223. Accordingly, the trial court abused its discretion in finding that the actions

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of the Memphis City Council did not constitute contempt due to the erroneous advice of its lawyer.

It is necessary that we remand this case to the trial court for a determination, consistent with

this opinion,13 of whether the actions of the Memphis City Council constituted contempt of the trial

court’s order. While the trial court may have disagreed with the decision of the Memphis City

Council on remand, we note, as should the trial court, that the petition presently before the trial court

is one for civil contempt.14 “Punishment for civil contempt is designed to coerce compliance with

the court’s order and is imposed at the insistence and for the benefit of the private party who has

suffered a violation of rights.” Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 473 (Tenn.

2003) (citations omitted). Should the trial court determine that the actions of the Memphis City

Council constitute willful contempt of the court’s order, the trial court is instructed to fashion an

appropriate sanction authorized by law.15 See Tenn. Code Ann. §§ 29-9-103 to -105 (2003).

C.

Frivolous Appeal

While not raised as a separate issue on appeal, Flautt & Mann requests that this Court award

it damages pursuant to section 27-1-122 of the Tennessee Code, which provides:

Damages for frivolous appeal. —

When it appears to any reviewing court that the appeal from any court

of record was frivolous or taken solely for delay, the court may, either

upon motion of a party or of its own motion, award just damages

against the appellant, which may include, but need not be limited to,

costs, interest on the judgment, and expenses incurred by the appellee

as a result of the appeal.

Tenn. Code Ann. § 27-1-122 (2003). Flautt & Mann argues that the City’s basis for appealing the

trial court’s order regarding the contempt petition is without merit. Since we have determined that

the trial court’s order regarding the contempt petition was erroneous as a matter of law, this is not

a frivolous appeal. Accordingly, we deny the Appellee’s request for damages under the statute.

13

See Earls v. Earls, No. M1999-00035-COA-R3-CV, 2001 Tenn. App. LEXIS 353, at *7–11 (Tenn. Ct. App.

May 14, 2001) (discussing the scope of a trial court’s authority on remand from an appellate court).

14

W hen the trial court determined that the acts of the Memphis City Council did not constitute willful contempt

of the court’s order, there was nothing left to decide regarding the petition for contempt presently before the court. Thus,

the trial court also exceeded its authority in remanding the case to the Memphis City Council for further consideration.

15

Since it is necessary for this Court to remand this case to the circuit court, we need not address Flautt &

Mann’s issue regarding the trial court’s failure to award damages for contempt. This issue can be appropriately

addressed by the trial court on remand.

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III.

CONCLUSION

For the reasons set forth herein, we reverse the trial court’s ruling regarding the Appellee’s

petition for contempt and remand this case to the trial court with instructions to conduct further

proceedings consistent with this opinion. Costs of this appeal are taxed to the Appellee, Flautt &

Mann, for which execution may issue if necessary.

___________________________________

ALAN E. HIGHERS, JUDGE

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