Pam Hayes v. City of Memphis

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 12, 2015 Session

PAM HAYES, ET AL. v. CITY OF MEMPHIS, ET AL.

Direct Appeal from the Chancery Court for Shelby County

No. CH-13-0785-3 Kenny W. Armstrong, Chancellor

No. W2014-01962-COA-R3-CV – Filed August 21, 2015

This appeal involves a dispute stemming from a resolution adopted by the Memphis City

Council renaming three public parks. Several organizations and individuals filed a

lawsuit challenging the validity of the resolution. The Shelby County Chancery Court

dismissed the lawsuit, holding that the allegations in the plaintiffs‘ complaint were

insufficient to establish their standing. On appeal, we hold that the allegations of the

complaint are sufficient to establish standing as to one of the organizations, Sons of

Confederate Veterans Nathan Bedford Forrest Camp #215. We therefore reverse the trial

court‘s dismissal as to that organization. We affirm dismissal of the remaining plaintiffs‘

claims for lack of standing.

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

in part, Reversed in part and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Douglas Edward Jones, Barbara J. Perutelli, and Teresea Joux Neisen Maniatis,

Nashville, Tennessee, for the appellants, Pam Hayes, Debbie Lewis, Harry Adams, Neal

Bumpus, Jim Brown, John Ellis, Mike Daugherty, Jack Smith, Adam Schmuck, Kevin

Bradley, Brooks Bradley, Jesse Bradley, Sons of Confederate Veterans, Sons of

Confederate Veterans Nathan Bedford Forrest Camp #215, and Citizens to Save Our

Parks, Inc.

Brandy S. Parrish and Allan J. Wade, Memphis, Tennessee, for the appellees, City of

Memphis and Memphis City Council.

OPINION

I. BACKGROUND AND PROCEDURAL HISTORY

This appeal arises from a complaint challenging the validity of a resolution

adopted by the Memphis City Council to rename three historic public parks. Prior to the

events that led to this appeal, the parks in question were named Forrest Park, Jefferson

Davis Park, and Confederate Park in honor of Confederate soldiers and notable

individuals from the Civil War.1 According to the parties‘ filings, Forrest Park was

named by ordinance in 1899, and Jefferson Davis Park was named by resolution in 1930.

The record is not clear as to the procedure used to name Confederate Park, though the

parties‘ filings indicate that the park was commonly known by that name after a

Confederate Veterans‘ reunion was held on its grounds in 1901. As time passed,

opposition to the park names emerged in light of societal conflicts regarding whether and

how those who fought for the Confederacy should be remembered. Though several

individuals proposed renaming the parks through the years, the names remained

unchanged through 2012.

On February 4, 2013, a bill was introduced in the Tennessee General Assembly to

enact the Tennessee Heritage Protection Act of 2013.2 The proposed legislation would

limit the authority of governing bodies to rename parks named for or dedicated in honor

of any historical military figure or event.3 Recognizing the potential limitation on its

1

As noted in the plaintiffs‘ filings, Confederate Park was named in honor of Confederate soldiers who

served in the Civil War and is located on a site where Memphians gathered to witness a naval battle

between Union and Confederate forces in 1862; Jefferson Davis Park was named for Jefferson Davis,

who served as a United States Senator from Mississippi and United States Secretary of War prior to the

Civil War and served as President of the Confederate States of America; Forrest Park was named for

Nathan Bedford Forrest, a Lieutenant General in the Confederate Army (―General Forrest‖).

2

TN H.R. Jour., 2013 Reg. Sess. No. 5.

3

As originally introduced, House Bill 553 provided in pertinent part that:

(1) No statue, monument, memorial, nameplate, or plaque which has been erected for, or

named or dedicated in honor of, [a major American military conflict], and is located on

public property, may be relocated, removed, altered, renamed, rededicated, or otherwise

disturbed.

(2) No statue, monument, memorial, nameplate, plaque, historic flag display, school,

street, bridge, building, park, preserve, or reserve which has been erected for, or named or

dedicated in honor of, any historical military figure, historical military event, military

organization, or military unit, and is located on public property, may be renamed or

rededicated.

H.B. 553, 108th Gen. Assemb., (Tenn. 2013).

The Tennessee Heritage Protection Act of 2013 was later signed into law, effective April 1, 2013,

and was codified at Tennessee Code Annotated section 4-1-412 (Supp. 2014). In its final version, the

statute contains the provisions quoted above, among others, and allows entities exercising control of

2

authority to change their names in the future, the Memphis City Council passed a

resolution to rename the three historic parks the following day, February 5, 2013. The

resolution stated:

WHEREAS, from time to time, the Memphis City Council has seen fit on

rare occasions to name certain public facilities, including parks, to honor

citizens who have served this community; and

WHEREAS, State Representative Steve McDaniel has sponsored HB0553,

the so called ―Tennessee Heritage Protection Act of 2013‖; and

WHEREAS, the Tennessee Heritage Protection Act of 2013 would forbid

the City of Memphis, a home rule municipality, from relocating, removing,

altering, renaming or rededicating, or otherwise disturbing any ―statue,

monument, memorial, nameplate or plaque‖ in Confederate Park, Jefferson

Davis Park, and Nathan Bedford Forrest Park; and

WHEREAS, the Tennessee Assembly is moving rapidly to limit the

authority of the City of Memphis to name parks within the City; and

WHEREAS, the legislation would limit the ability of the City to name these

three parks, and it does not contemplate that the state would maintain the

parks; they would continue to be funded by city funds; and

WHEREAS, if the City does not take action with respect to these three

parks, the City of Memphis may lose the ability at these three parks to

honor any citizens who have (or may in the future) serve this community in

some exceptional way.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE

CITY OF MEMPHIS THAT:

Pursuant to Section 579.1 of the City Charter, the Council of the City is

authorized and has full and ample power by ordinance or resolution to

limit, restrict and to change or to terminate the use or operation of any

property owned by or dedicated by the city for park purposes. The Council

may by ordinance or resolution name or rename any park under the City‘s

jurisdiction and control and may designate all appropriate markers, statutes

or other references for any such park so named or renamed.

public property to petition the Tennessee historical commission for a waiver of its application. Tenn.

Code Ann. § 4-1-412(c).

3

In accordance with its authority, the Council renames:

(1) Nathan Bedford Forest (sic) Park as ―Health Sciences Park‖;

(2) Confederate Park as ―Memphis Park‖;

(3) Jefferson Davis Park as ―Mississippi River Park‖; and

(4) The Division of Parks & Neighborhoods (or the Division‘s designee)

shall be responsible for immediately affixing all suitable identifying

signs and markers of the new names.

BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF

MEMPHIS that this Resolution shall immediately take effect from and after

the date it shall have been passed by the Council.

Trial Court Proceedings

On May 29, 2013, an organization called Citizens to Save Our Parks, Inc.

(―CSOP‖) and a group of its individual members filed a complaint against the City of

Memphis (the ―City‖) and the Memphis City Council (the ―City Council‖) in the Shelby

County Chancery Court challenging the validity of the resolution and seeking declaratory

relief. Later, an organization called Sons of Confederate Veterans (―SCV International‖),

along with its local chapter, Sons of Confederate Veterans Nathan Bedford Forrest Camp

#215 (―SCV Camp #215‖), and several of General Forrest‘s descendants (―Forrest

descendants‖) were added as plaintiffs in the lawsuit. After a number of filings and

several hearings, the plaintiffs collectively filed their second amended complaint, which

is at issue in this appeal.

Second Amended Complaint

The plaintiffs filed their second amended complaint on October 21, 2013.4 The

complaint alleges that CSOP is a non-profit historical preservation group located in

Memphis and that many of its individual members have visited the three parks to study

the parks‘ history. It alleges SCV International is dedicated to ensuring that the history of

the Civil War period is preserved for future generations by preserving and maintaining

historical sites and monuments related to the Civil War and by providing educational

programs, historical research, and other services. It alleges SCV International‘s local

Memphis chapter, SCV Camp #215, was organized in 1900 with the primary purpose of

promoting and educating people about the life and history of General Forrest.

The complaint alleges that, for years, each of the plaintiff organizations and their

4

Throughout the remainder of this opinion, the plaintiffs‘ second amended complaint is referred to as the

―complaint.‖

4

members assisted in the preservation and maintenance of the parks by organizing ―work

days‖ and funding the purchase and installation of various markers, statues, monuments,

and educational panels in each of the three historic parks.5 Notably, it alleges that in

2009, SCV Camp #215 began raising funds to purchase and install a name marker in

Forrest Park. It alleges that in 2011, members of SCV Camp #215 met with

representatives from the Shelby County Historical Commission and the City‘s Division

of Park Services to discuss the design and location of the proposed marker. According to

the complaint, during the discussions, Cynthia Buchanan, the Director of Park Services,

indicated that she supported the idea because it would enhance the park without using

taxpayer funds. Director Buchanan suggested that the marker say ―Forrest Park,‖ rather

than ―Forrest,‖ as originally proposed and that the inscription on the reverse side of the

marker should include the name of ―Memphis Park Services‖ as a partner in the project.

In March 2011, Director Buchanan approved the marker‘s location and design in a letter

sent to the City‘s Chief Administrative Officer and the Park Services Administrator of

Planning and Development.

According to the complaint, the Forrest Park name marker was installed in May

2012 and formally dedicated to the City in July 2012. In its final design, the marker is

ten feet long and eighteen inches high with the words ―FORREST PARK‖ inscribed in

ten inch letters. It has a concrete foundation and weighs over 3,000 pounds. The reverse

side of the marker contains the following inscription: ―Erected by: Memphis Park

Service, Shelby County Historical Commission, NBF Camp #215 Sons of Confederate

Veterans.‖ The complaint alleges that the total cost to purchase and install the Forrest

Park name marker was approximately $8,235 and that funding for the marker was raised

solely by SCV Camp #215. Despite the group‘s efforts, the name marker‘s time in the

park was short. According to the complaint, the City removed the name marker from

Forrest Park on or around January 8, 2013, just months after its installation. During the

next meeting of the City Council‘s Parks Subcommittee on January 22, 2013, members of

SCV Camp #215 were present and requested an official inquiry into the reason for the

marker‘s removal. The complaint alleges that during the meeting, members of the

subcommittee discussed the possibility of having the equestrian statue of General Forrest

removed as well and requested that parties interested in the removal of the Forrest Park

5

For instance, the complaint alleges that: the plaintiffs organized a ―work day‖ at Forrest Park each year

before an annual event commemorating General Forrest‘s birthday; in 1905, SCV Camp #215‘s

predecessor organizations raised over $28,000 to commission the 9,500 pound equestrian statue of

General Forrest that stands in Forrest Park; in 2002, SCV Camp #215 raised $800 to install headstones for

the graves of General Forrest and his wife, both of whom are buried in Forrest Park; in 2002, SCV Camp

#215 raised $1,200 to place a marker in Forrest Park honoring General Forrest‘s grandson, who served as

a General in World War II; in 2008, SCV Camp #215 raised $1,700 to place a panel in Confederate Park

depicting scenes from the 1862 naval battle at Memphis; and in 2012, SCV Camp #215 raised $75,000

and coordinated with the Riverfront Development Corporation to place four full-scale replicas of Civil

War cannons in Confederate Park.

5

name marker attend its next meeting on February 5, 2013.

According to the plaintiffs‘ complaint, during the February 5, 2013 meeting,

members of the Parks Subcommittee first introduced the idea of changing the names of

Confederate Park, Jefferson Davis Park, and Forrest Park. That afternoon, at the City

Council‘s regular meeting, two ordinances were introduced on first reading to the City

Council—one proposing to change Forrest Park to ―Forrest-Wells Park,‖ and one

proposing to change Forrest Park to ―Ida B. Wells Park,‖ Confederate Park to ―Front

Street Park,‖ and Jefferson Davis Park to ―North Riverside Park.‖ According to the

complaint, neither of the ordinances was passed because they had not been read in open

sessions of the council on three different days as required by law. The complaint alleges

that rather than comply with the formalities necessary to enact a valid ordinance, the City

Council then passed the resolution changing Forrest Park to ―Health Sciences Park,‖

Confederate Park to ―Memphis Park,‖ and Jefferson Davis Park to ―Mississippi Park.‖

The complaint alleges that the City Council‘s renaming resolution is invalid for

two reasons. First, the complaint alleges that the City Council lacked authority to change

any of the three park names by resolution because it transferred jurisdiction, control, and

authority over the City‘s public parks, including the authority to rename the parks, to

Park Services by ordinance in 2000. Separately, the complaint alleges that the City

Council lacked authority to rename Forrest Park by resolution because that park was

originally named by ordinance and therefore could only be renamed by a subsequent

ordinance.

The complaint alleges that the plaintiffs suffered several injuries as a result of the

renaming resolution. The complaint alleges that as a direct result of the resolution‘s

passing, SCV International decided not to hold its 2016 national convention in Memphis,

costing SCV Camp #215 approximately $56,000 in lost profits. It alleges that the

resolution‘s passing deprived the Forrest descendants of their interest in preserving the

Forrest Park name as a memorial to their relative. It alleges that the plaintiffs were

injured by the detrimental impact renaming the parks would have on their efforts to

preserve and illuminate the historical significance of the parks and the individuals they

were originally intended to commemorate. The complaint also alleges that the Forrest

Park name marker was damaged during its removal.

To redress their injuries, the plaintiffs requested that the court issue a judgment

declaring the City‘s and City Council‘s actions unlawful, illegal, and without statutory

authority; specifically declaring the renaming resolution null, void, and invalid; declaring

the removal of signage from the parks to be illegal and invalid; requiring the City to

replace signage at the parks and make appropriate changes to all public signage,

directories, and websites; and declaring that the City lacks authority to further remove

6

any signs, statutes, markers, or other historic items from the parks.

Motion to Dismiss and Trial Court Order

The defendants responded by filing a motion to dismiss the complaint in which

they asserted that the complaint actually contained two separate claims: one challenging

the City Council‘s authority to pass a resolution renaming the three parks and one

challenging the City‘s authority to remove the Forrest Park name marker. With regard to

the former, the defendants argued the plaintiffs lacked standing to challenge the renaming

resolution because they had not suffered a sufficiently distinct injury related to the

renaming of the parks. As to CSOP, the defendants also asserted the organization could

not have suffered an injury from the parks‘ renaming because it was not incorporated

until May 2013, several months after the passage of the renaming resolution.

Alternatively, the defendants argued that even if the plaintiffs had standing to challenge

the resolution, the complaint should be dismissed because the city charter conferred

authority on the City Council to rename the parks by resolution. The defendants‘

argument regarding removal of the Forrest Park name marker is less clear. Initially, they

stated in a footnote that ―[t]he City‘s argument pertaining to standing is applicable to the

first claim only, as the SCV Plaintiffs have standing to challenge the City‘s removal of

the name marker or other property placed in the park by them.‖ Later in the motion,

however, the defendants asserted that ―Plaintiffs have not alleged any concrete,

particularized and special injury as a result of the removal of signage in the three parks.‖

Thus, it is not clear whether they conceded that the plaintiffs have standing to challenge

the removal of the name marker or argued that the plaintiffs lack such standing. In any

event, the defendants‘ primary argument with regard to removal of the Forrest Park name

marker was that the claim must fail because the City has ―complete and full control and

management over all parks,‖ which included the authority to remove or alter any signage

or property found in the parks.

The plaintiffs filed a response to the defendants‘ motion to dismiss as well as an

affidavit of Knox Martin, the former President and current Secretary and Treasurer of

CSOP. The affidavit contained statements related to the organization‘s formation

intended to rebut the defendants‘ assertion that because it was incorporated in May 2013,

it could not have been injured. According to the affidavit, although not formally

incorporated until May 2013, the CSOP organization was formed in 1999 with the

purpose of preserving the names and contents of historical parks in Memphis, and CSOP

had been actively involved in the preservation of the three parks at issue since that time.

It also detailed the organization‘s successful opposition to several past efforts to change

the names of the three parks.

Following a hearing on the matter, the trial court entered an order granting the

7

defendants‘ motion to dismiss on August 6, 2014. The court separately analyzed the

allegations in the complaint with respect to each group of plaintiffs and determined that

none of the allegations were sufficient to confer standing to challenge the renaming

resolution. As to CSOP, the court stated that despite the assertion that its stated purpose

was to preserve the park names, the organization lacked sufficient involvement with the

parks to establish standing. Additionally, as to both CSOP and the individual plaintiffs,

the court concluded that despite their efforts to preserve and maintain the parks by

organizing work days, the only injury they were alleged to have suffered from the

renaming was ―the erasure and elimination of significant parts of the cultural history of

Memphis and its negative impact on historical tourism.‖ The court concluded that ―this

alleged injury [is not] sufficiently distinct to establish standing.‖ As to the Forrest

descendants, the court concluded that ―changing the name does not cause a concrete

injury to these parties or affect their right or legal relation to such an extent to establish

standing.‖ As to SCV Camp #215, the court concluded that despite the group‘s efforts to

promote the historical significance of the parks, their claims regarding ―the erasure of

history and destruction of public information about the city‘s historical parks does not

constitute a concrete and particularized injury which is essential to establish standing.‖

Additionally, the court concluded that SCV Camp #215‘s allegation of lost profits from

the decision of SCV International to hold its 2016 convention in Texas rather than

Memphis was ―too speculative‖ to constitute a concrete injury. The trial court noted that

the allegations related to SCV Camp #215 overlapped with those related to SCV

International and therefore concluded that SCV International also lacked standing. In

light of its conclusions, the court dismissed the plaintiffs‘ claims related to the renaming

resolution. Next, the court concluded that although SCV Camp #215 had a ―special

interest‖ in the Forrest Park name marker, the City was free to do whatever it pleased

with the marker, including acting to remove it from Forrest Park, because no conditions

were placed on its dedication to the City. Thus, the court also dismissed the plaintiffs‘

claims related to the removal of the name marker.

The plaintiffs filed a timely notice of appeal.

II. ISSUES PRESENTED

The plaintiffs state the following issue for our review:

1. Whether the Plaintiffs, both the individuals and organizations, have

standing to bring a declaratory action against the Defendants based on the

ultra vires renaming of Forrest Park, Confederate Park, and Jefferson Davis

Park.

8

III. STANDARD OF REVIEW

As an initial matter, we must determine the appropriate standard of review for the

trial court‘s decision to dismiss the complaint. The defendants filed a motion seeking to

dismiss the complaint pursuant to Rule 12.02(6) of the Tennessee Rules of Civil

Procedure. A Rule 12.02(6) motion presents a facial challenge to the complaint, testing

only the legal sufficiency of the complaint itself and not the strength of the plaintiff‘s

proof. Davidson v. Bredesen, 330 S.W.3d 876, 882 (Tenn. Ct. App. 2009). As such, the

resolution of a Rule 12.02(6) motion to dismiss is limited to an examination of the

allegations in the complaint alone. Id. If the parties submit extraneous facts in

connection with a Rule 12.02(6) motion and the trial court chooses to consider them in

making its decision, the motion to dismiss must be treated as one for summary judgment

and disposed of in compliance with the procedural requirements of Rule 56 of the

Tennessee Rules of Civil Procedure. Tenn. R. Civ. P. 12.02; Patton v. Estate of

Upchurch, 242 S.W.3d 781, 786 (Tenn. Ct. App. 2007).

Along with their response to the defendants‘ motion to dismiss, the plaintiffs

submitted an affidavit by Knox Martin, the former President and current Secretary and

Treasurer of CSOP. The statements in the affidavit related exclusively to CSOP and its

standing to challenge the renaming resolution. In light of the trial court‘s reference to

statements included in the affidavit in its order, we conclude that the trial court did not

exclude the Martin affidavit and, therefore, that the defendants‘ motion must be treated as

a motion for summary judgment under Rule 56 insofar as the grounds related to CSOP

are concerned. However, to the extent that the motion asserted grounds under Rule

12.02(6) that related to other plaintiffs and were not addressed in the Martin affidavit, it

should be treated as a motion to dismiss. ―The difference between a motion to dismiss

and a motion for summary judgment is more than academic when it comes to standard of

review.‖ Pendleton v. Mills, 73 S.W.3d 115, 120 (Tenn. Ct. App. 2001).

Rule 12.02(6) Motions to Dismiss

A Rule 12.02(6) motion to dismiss challenges only the legal sufficiency of the

complaint, not the strength of the plaintiff‘s proof or evidence. Highwood Props., Inc. v.

City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009). ―The resolution of the motion is

determined by an examination of the pleadings alone.‖ Leggett v. Duke Energy Corp.,

308 S.W.3d 843, 851 (Tenn. 2010). Dismissal under Rule 12.02(6) is warranted only

when the facts alleged will not entitle the plaintiff to relief or when the complaint is

totally lacking in clarity and specificity. Pendleton, 73 S.W.3d at 120.

A defendant who files a Rule 12.02(6) motion to dismiss ―admits the truth of all of

the relevant and material allegations contained in the complaint, but . . . asserts that the

9

allegations fail to establish a cause of action.‖ Brown v. Tenn. Title Loans, Inc., 328

S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172

S.W.3d 512, 516 (Tenn. 2005)). Accordingly, the court reviewing the complaint must

construe the complaint liberally in favor of the plaintiff by taking all factual allegations in

the complaint as true and giving the plaintiff the benefit of all inferences that can be

reasonably drawn from the pleaded facts. Webb v. Nashville Area Habitat for Humanity,

Inc., 346 S.W.3d 422, 426 (Tenn. 2011). On appeal, we must likewise presume the

factual allegations in the complaint are true and review the trial court‘s legal conclusions

regarding the adequacy of the complaint de novo with no presumption of correctness.

See Cullum v. McCool, 432 S.W.3d 829, 832 (Tenn. 2013).

Rule 56 Motions for Summary Judgment

A Rule 56 motion for summary judgment challenges the sufficiency of the

nonmoving party‘s proof by asserting that the ―pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits . . . show that there is

no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.‖ Tenn. R. Civ. P. 56.04; accord Martin v. Norfolk S. Ry.

Co., 271 S.W.3d 76, 83 (Tenn. 2008). Thus, if either or both parties submit matters

outside the pleadings in support of or in opposition to a Rule 12.02(6) motion to dismiss,

and the trial court does not exclude them, the motion should be treated as one for

summary judgment, and all parties must be given a reasonable opportunity to present all

material made pertinent to it. See Tenn. R. Civ. P. 12.02(6); Staats v. McKinnon, 206

S.W.3d 532, 543 n.14 (Tenn. Ct. App. 2006). In resolving such a motion, ―[t]he moving

party has the ultimate burden of persuading the court that there are no genuine issues of

material fact and that the moving party is entitled to judgment as a matter of law.‖

Martin, 271 S.W.3d at 83. Accordingly, a properly supported motion for summary

judgment must demonstrate that there are no genuine issues of material fact and that the

moving party is entitled to judgment as a matter of law. Id. If the moving party fails to

make the required showing, its motion must fail. Id.

If the moving party does make the required showing, the burden shifts to the

nonmoving party to produce evidence of specific facts establishing that genuine issues of

material fact exist. Id. at 84. The nonmoving party‘s evidence must be accepted as true,

and any doubts concerning the existence of a genuine issue of material fact must be

resolved in favor of the nonmoving party. Id. On appeal, we must likewise review the

evidence in the light most favorable to the nonmoving party and draw all reasonable

inferences in favor of the nonmoving party. Id. We review the trial court‘s resolution of

a motion for summary judgment de novo with no presumption of correctness. Id.

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IV. DISCUSSION

The plaintiffs assert their standing to challenge the resolution renaming the parks

pursuant to the Tennessee Declaratory Judgment Act. Specifically, they rely on

Tennessee Code Annotated section 29-14-103 (2012), which, in relevant part, states that:

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.

The stated purpose of the Tennessee Declaratory Judgment Act is ―to settle and to afford

relief from uncertainty and insecurity with respect to rights, status, and other legal

relations.‖ Tenn. Code Ann. § 29-14-113. Although the statute is to be liberally

construed and administered, a declaratory judgment action cannot be used to decide a

theoretical question or render an advisory opinion. Mills v. Shelby Cnty. Election

Comm’n, 218 S.W.3d 33, 39-40 (Tenn. Ct. App. 2006) (citing State v. Brown &

Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000)). It is therefore necessary

that certain limitations be placed on the operation of the statute. Id. at 39 (citing Johnson

City v. Caplan, 253 S.W.2d 725, 726 (Tenn. 1952)). Accordingly, courts have held that

to maintain an action for a declaratory judgment, a justiciable issue must exist. Id. at 40.

A justiciable issue is one giving rise to ―a genuine, existing controversy requiring

the adjudication of presently existing rights.‖ See UT Med. Grp., Inc. v. Vogt, 235

S.W.3d 110, 119 (Tenn. 2007). Justiciability encompasses several distinct doctrines such

as standing, ripeness, mootness, political question, exhaustion of administrative remedies,

and the prohibition against advisory opinions. Norma Fay Pyles Lynch Family Purpose

LLC v. Putnam Cnty., 301 S.W.3d 196, 202 (Tenn. 2009). The doctrine at issue in this

appeal is standing.

Standing

The courts use the doctrine of standing to determine whether a particular litigant is

―properly situated to prosecute the action.‖ Petty v. Daimler/Chrysler Corp., 91 S.W.3d

765, 767 (Tenn. Ct. App. 2002) (quoting Knierim v. Leatherwood, 542 S.W.2d 806, 808

(Tenn. 1976)). The doctrine is grounded in ―concern about the proper–and properly

limited–role of the courts in a democratic society.‖ Am. Civil Liberties Union of Tenn. v.

Darnell, 195 S.W.3d 612, 619 (Tenn. 2006) (quoting Warth v. Seldin, 422 U.S.490, 498,

11

95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). It precludes courts from adjudicating ―an action

at the instance of one whose rights have not been invaded or infringed.‖ Id. at 619-20

(quoting Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001)). The doctrine

limits ―the exercise of judicial power . . . to litigants who can show ‗injury in fact‘

resulting from the action which they seek to have the court adjudicate.‖ Id. at 620

(quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State,

Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). Without such a

limitation, the courts would be called on to decide abstract questions of wide public

significance beyond the province of the judiciary. Id.

Two categories of standing govern who may bring a civil cause of action: non-

constitutional standing and constitutional standing. City of Memphis v. Hargett, 414

S.W.3d 88, 98 (Tenn. 2013). The primary focus of non-constitutional standing is on

judicial restraint, including considerations of ―whether a complaint raises generalized

questions more properly addressed by another branch of the government, and questions

of statutory interpretation, such as whether a statute designates who may bring a cause of

action or creates a limited zone of interests.‖ Id. Constitutional standing, the issue in this

case, ―is one of the ‗irreducible . . . minimum‘ requirements that a party must meet in

order to present a justiciable controversy.‖ Id. (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also City of

Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001); Norma Faye Pyles Lynch

Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 202-03 (Tenn. 2009) (noting that

Tennessee courts‘ adoption of the various justiciability doctrines, including standing, has

a basis in the separation of powers required under Article II, Sections 1 and 2 of the

Tennessee Constitution)).

―[T]he irreducible constitutional minimum of standing‖ includes three elements.

Lujan, 504 U.S. at 560. First, the plaintiff must show a distinct and palpable injury,

which is ―an invasion of a legally protected interest which is (a) concrete and

particularized . . . and (b) actual or imminent, not conjectural or hypothetical.‖ Id.

(internal citations omitted); see also Darnell, 195 S.W.3d at 620. The injury may not be

―predicated upon an injury to an interest that the plaintiff shares in common with all other

citizens.‖ Darnell, 195 S.W.3d at 620. Second, there must be a causal connection

between the claimed injury and the challenged conduct. Id. ―While the causation

element is not onerous, it does require a showing that the injury to a plaintiff is ‗fairly

traceable‘ to the conduct of the adverse party.‖ Howe v. Haslam, No. M2013-01790-

COA-R3-CV, 2014 WL 5698877, at *6 (Tenn. Ct. App. Nov. 4, 2014) (no perm. app.

filed) (quoting Darnell, 195 S.W.3d at 620). Third, the plaintiff must show that the

alleged injury is capable of being redressed by a favorable decision of the court. Darnell,

195 S.W.3d at 620.

12

An organization may have standing to assert an injury to it regardless of whether

its members also have standing. Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer

Comm’n, 389 F.3d 536, 544 (6th Cir. 2004) (citing Warth, 422 U.S. at 511 (―There is no

question that an association may have standing in its own right to seek judicial relief from

injury to itself and to vindicate whatever rights and immunities the association itself may

enjoy.‖)). Notwithstanding the absence of an injury to itself, however, an organization

may also establish standing to sue solely as a representative of its members by showing

that: ―(1) its members would otherwise have standing to sue in their own right; (2) the

interests it seeks to protect are germane to the organization‘s purpose; and (3) neither the

claim asserted, nor the relief requested, requires the participation of individual members

in the lawsuit.‖ Darnell, 195 S.W.3d at 626.

―It is important to note that standing does not depend upon a plaintiff‘s likelihood

of success on the merits.‖ Id. Rather, the standing inquiry requires a ―careful judicial

examination of a complaint‘s allegations to ascertain whether the particular plaintiff is

entitled to an adjudication of the particular claims asserted.‖ Hargett, 414 S.W.3d at 97

(quoting Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).

The court should inquire:

Is the injury too abstract, or otherwise not appropriate, to be considered

judicially cognizable? Is the line of causation between the illegal conduct

and injury too attenuated? Is the prospect of obtaining relief from the

injury as a result of a favorable ruling too speculative?

Allen, 468 U.S. at 752.

The party invoking the court‘s jurisdiction has the burden of establishing the

elements of standing. See Hargett, 414 S.W.3d at 100-01. Because the elements are an

indispensable part of the plaintiff‘s case, each ―must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof, i.e., with the manner and

degree of evidence required at the successive stages of the litigation.‖ Lujan, 504 U.S. at

555. For example, to survive a facial challenge presented in a motion to dismiss, ―[t]he

facts pleaded [with respect to standing], and the inferences reasonably drawn from these

facts, must raise the pleader‘s right to relief beyond the speculative level.‖ Webb, 346

S.W.3d 427 (quoting Abshure, 325 S.W.3d at 103-104).

Application of the foregoing principles to the complaint demonstrates that the

plaintiffs alleged sufficient facts to establish that SCV Camp # 215 has standing to

challenge the renaming of the parks by resolution. CSOP, the individual plaintiffs, the

Forrest descendants, and SCV International, however, do not.

13

SCV Camp #215

In this case, the plaintiffs challenge the renaming of the three parks by resolution

rather than by ordinance. Generally, the adoption of a resolution contemplates some

action less formal than that which would be undertaken by adoption of an ordinance. 5

Eugene McQuillen, Law of Municipal Corporations § 15:2 (3d ed.). As such, adoption of

a resolution may be accomplished without the necessary formalities, solemnities, and

characteristics of an ordinance. Id. For instance, Section 354 of the Memphis Charter

provides in part that:

No ordinances shall become effective until the same shall have passed at

least three regular meetings of the [City Council], and shall have received at

such meeting a majority vote of all of the members composing said board,

and unless the same shall have been published in some newspaper

circulated in Memphis, Tennessee, by one publication, the same to take

place between the date of first and second readings of each ordinance.

The purpose of such procedural requirements is to prevent hasty and unconsidered action

by an enacting legislative body. See Biltmore Hotel Court v. City of Berry Hill, 390

S.W.2d 223, 226 (Tenn. 1965) (examining the stated purpose of an analogous Kentucky

law). They also afford interested parties an opportunity to study the proposed ordinance

and make recommendations or, as the case may be, organize an effort in furtherance of or

in protest to its enactment. Id.

Presuming the facts in the complaint are true, as we are required to do at this stage

of the proceedings, it appears that the renaming of the parks by resolution rather than

ordinance may have precluded meaningful public debate on the matter. According to the

complaint, the possibility of changing the names of Confederate Park, Jefferson Davis

Park, and Forrest Park was first mentioned at a Parks Subcommittee meeting on the

morning of February 5, 2013. That afternoon, the City Council renamed all three park

names that, in the case of Confederate Park and Forrest Park, had been in existence for

over a century. The complaint alleges that the City Council‘s use of a resolution to

rename the parks was undertaken to bypass the time-consuming formalities that

ordinarily accompany adoption of an ordinance. Indeed, from the face of the resolution

itself, it is clear that the City Council‘s action was calculated to take effect prior to

enactment of the Tennessee Heritage Protection Act of 2013, which was being considered

by the general assembly at the same time. Thus, while it was perhaps not the City

Council‘s intent to preclude debate on the matter, taking the facts alleged as true, it

appears that its use of a resolution rather than an ordinance had precisely that effect.

Without deciding the issue of whether the City Council had the authority to rename the

14

parks by resolution,6 we conclude that the allegations in the complaint are sufficient to

establish that SCV Camp #215 has standing to challenge the City Council‘s action.

The defendants contend that even if the park should have been renamed by

ordinance, SCV Camp #215, along with the other plaintiffs, do not have standing to

challenge the renaming resolution because they failed to allege a distinct and palpable

injury from its adoption. We respectfully disagree. In our view, the allegations in the

complaint regarding the City‘s close involvement with SCV Camp #215 in the design and

installation of the Forrest Park name marker lead to a reasonable inference that the City

conferred on the organization a special interest in the Forrest Park name. We find

guidance in reaching this conclusion from this Court‘s opinion in Chickasaw Bluffs

Conservancy v. City of Memphis, No. 02A01-967-CH-00169, 1997 WL 135967 (Tenn.

Ct. App. Mar. 25, 1997).

In Chickasaw Bluffs, a private developer sought approval from the City of

Memphis to build a commercial and residential development on a bluff overlooking the

Mississippi River. Id. at *1. During the approval process, the city council invited the

Chickasaw Bluffs Conservancy, a citizen‘s group concerned with preserving public

access to the bluff, to comment regarding the inclusion of a public walkway in the

proposed development plans. Id. at *2. With the council‘s encouragement, the group

remained involved in discussions with the developer regarding a proposed walkway over

the course of several years. Id. at *2-3. After several failed attempts to do so, the

group‘s representatives were able to negotiate an amendment to the developer‘s plan

requiring the construction of the walkway. Id. In 1993, the city council approved the

plan conditioned on construction of the walkway as described in their agreement, and the

city entered into a contract with the developer that incorporated its terms and conditions

concerning construction of the walkway. Id. at *3-4. Later, however, as the project was

put out for public bids, the mayor expressed concerns about the walkway and indicated

that he would not approve of its construction as called for in the plan. Id. at *4. In

response, the group filed a lawsuit against the city seeking to enforce the contract

between the city and developer. Id. at *1. On appeal, the city argued that the group

lacked standing to compel action by the city. Id. at *7. This Court noted that the citizen

group was formed with the express purpose of protecting the public‘s use of the property

6

In their motion to dismiss, the defendants argued in the alternative that even if the plaintiffs had standing

to challenge the renaming resolution, their complaint failed to state a claim because the City Council

acted within its authority in adopting the resolution. Even though this issue was raised at the trial court

level, we cannot fully analyze this issue because the trial court did not consider or rule on it. See Copper

Basin Fed. Credit Union v. Fiserv Solutions, Inc., No. E2012-02145-COA-R3-CV, 2013 WL 3421916, at

*5 (Tenn. Ct. App. July 3, 2013) (no perm. app. filed) (citing Dorrier v. Dark, 537 S.W.2d 888, 890

(Tenn. 1976) (―This is a court of appeals and errors, and we are limited in authority to the adjudication of

issues that are presented and decided in the trial courts . . . .‖)).

15

in question and that the mayor and city council both recognized the desirability and

necessity for an entity to act in furtherance of that public good. Id. It noted that, but for

the group‘s agreement with the developer regarding the walkway, the city council would

not have approved the development. Id. Thus, the Court of Appeals concluded that

because of the city‘s actions, the citizen group had standing because it suffered a special

injury not common to the citizenry at large by the mayor‘s failure to act. Id.

Likewise, taking as true the allegations of the complaint, we conclude that because

of the City‘s actions, SCV Camp #215 suffered a distinct and palpable injury not

common to the citizenry at large by the City Council‘s adoption of the renaming

resolution. The complaint alleges that SCV Camp #215 was formed with the express

purpose of educating the public about the life and history of General Forrest. To that end,

the complaint alleges that SCV Camp #215 has assisted in the preservation and

maintenance of Forrest Park through the years by organizing work days and by funding

the installation of various markers, statues, monuments, and educational panels in each of

the three historic parks. While it stands to reason that the City may appreciate the

groups‘ efforts in this manner, it does not appear from the complaint that the City has

taken any action to encourage the majority of these efforts that could be construed as

conferring a special interest in preservation of the park‘s name. However, the complaint

reflects a much higher level of involvement by the City with regard to the funding and

installation of the Forrest Park name marker. Taking the allegations in the complaint as

true, it appears that the City recognized the desirability of having a new name marker

installed in Forrest Park without using taxpayer funds and encouraged SCV Camp #215‘s

efforts to do so. The Director of the City‘s Division of Park Services actively

participated in the design of the name marker, approved its location, and even suggested

that the name marker be inscribed to reflect that its installation was the result of a

partnership between the Division of Park Services and SCV Camp #215.

The defendants contend that SCV Camp #215‘s interest in the Forrest Park name

marker is distinguishable from its interest in the Forrest Park name itself. In their motion

to dismiss, the defendants appeared to concede that SCV Camp #215 had a special

interest in the Forrest Park name marker sufficient to establish standing.7 The trial court

reached a similar conclusion, stating that although the group had a special interest in the

name marker, the City had the authority to remove it from the park because no conditions

were placed on its dedication to the City. As the plaintiffs do not raise any issues

specifically related to removal of the Forrest Park name marker on appeal, we address it

7

As we stated previously, the defendants‘ argument on this point in their motion to dismiss is not clear.

Initially, the defendants stated in a footnote that ―the SCV Plaintiffs have standing to challenge the City‘s

removal of the name marker or other property placed in the park by them.‖ Later, however, the

defendants stated that ―Plaintiffs have not alleged any concrete, particularized and special injury as a

result of the removal of signage in the three parks.‖

16

only to the extent that it relates to their standing to challenge the park‘s renaming. In our

view, SCV Camp #215‘s special interest in the Forrest Park name marker necessarily

confers a special interest in the Forrest Park name. Changing the name of Forrest Park

without removing the ten-foot, 3,000 pound concrete marker with ―FORREST PARK‖

inscribed on it would essentially be a meaningless effort.

Based on the foregoing, we conclude that, taking the allegations of the plaintiffs‘

complaint as true, the complaint establishes that SCV Camp #215 had a special interest in

preserving the Forrest Park name such that it suffered a distinct and palpable injury from

its renaming. Moreover, we can reasonably infer that the group‘s alleged injury is fairly

traceable to the City Council‘s actions because the renaming of Forrest Park by resolution

rather than ordinance may have deprived SCV Camp #215 of the opportunity to voice

any meaningful opposition to it. Finally, we note that the injury to SCV Camp #215‘s

interest in the Forrest Park name would be redressed by a favorable decision in this case.

Because the allegations of the complaint are sufficient to establish each element of

standing as to SCV Camp #215, we conclude that SCV Camp #215 has standing to

challenge the renaming resolution.8 We therefore reverse the trial court‘s judgment as to

SCV Camp #215 and remand the case for such further proceedings as are necessary.

Remaining Plaintiffs

Unlike SCV Camp #215, CSOP, the individual plaintiffs, the Forrest descendants,

and SCV International lack standing to challenge the renaming resolution. In addition to

Chickasaw Bluffs, the plaintiffs rely on Citizens to Preserve Overton Park, Inc. v. Volpe,

309 F. Supp. 1189 (W.D. Tenn. 1970), to argue that CSOP has standing. In Volpe, a

plaintiff citizens group filed suit against the Secretary of the Department of

Transportation challenging approval of plans to build an interstate highway through

Overton Park in Memphis. Id. at 1191. The district court ruled that the citizen‘s group

had standing to challenge the agency action because of their involvement in proceedings

at the agency level. Id. at 1191-92. The plaintiffs contend that the injury suffered by

CSOP as a result of the renaming of the parks is analogous to the injuries suffered by the

groups in Chickasaw Bluffs and Volpe. We respectfully disagree.

8

For purposes of clarity, we note that SCV Camp #215‘s standing to challenge the Forrest Park name

change confers standing to challenge the resolution as a whole. If, on remand, the trial court concludes

that the City Council lacked authority to change any of the park names by resolution, the trial court

should declare the resolution invalid as to all three name changes. Conversely, if the trial court concludes

that the City Council only lacked authority to change the name of Forrest Park by resolution, the trial

court should only declare the resolution invalid as to the Forrest Park name change. See State v. Crank,

No. E2012-01189-SC-R11-CD, --- S.W.3d ---, --- , 2015 WL 603158, at *10 (Tenn. Feb. 13, 2015)

(stating that under appropriate circumstances, a court may omit an invalid portion of a statute and find the

remaining provisions to be effective) (citations omitted).

17

Though not explicitly set forth in the Volpe opinion, the citizen‘s group in that

case had standing to initiate judicial review of actions by the Department of

Transportation pursuant to federal statutes specifically recognizing the importance of

environmental protection and intended to allow private persons to file federal court

actions to protect park and recreation lands from arbitrary and capricious agency actions.

See 23 U.S.C. § 138 (―It is declared to be the national policy that special effort should be

made to preserve the natural beauty of the countryside and public park and recreation

lands . . . .‖); see also La Raza Unida v. Volpe, 337 F. Supp. 221, 232 (N.D. Cal. 1971)

(holding that private plaintiffs who used parks and lived near parklands that might be

damaged by construction of a highway had standing to bring a federal court action for

declaratory and injunctive relief in regard to proposed highway). Similarly, in Chickasaw

Bluffs, the city council explicitly recognized the necessity of the citizens group as a

necessary voice for the public by actively facilitating negotiations between the group and

the developer and even required the group‘s agreement before approving the

development plans. In this case, even if we assume the truth of the statements contained

in the Martin affidavit,9 it does not appear that the City has taken any action to encourage

the group‘s efforts that could be construed as conferring a special interest in preservation

of the park names. CSOP contends that the City conferred standing by inviting CSOP to

comment at Memphis Center City Commission meetings. The Martin affidavit makes it

clear, however, that the general public was invited to comment during the meetings.

Thus, CSOP cannot be said to have suffered any specialized injury not common to all

other citizens by its participation in the meetings, and there is no genuine issue of

material fact with respect to CSOP‘s standing.

Likewise, neither the complaint nor the Martin affidavit establishes that CSOP has

standing to challenge the resolution on behalf of the individual plaintiffs or its other

members. Although the complaint alleges activities undertaken by the individual

plaintiffs to benefit the parks, it does not allege a distinct and palpable injury. In fact, the

section of the complaint titled ―INJURIES TO THE PLAINTIFFS‖ does not contain any

specific allegation that CSOP or the individual plaintiffs suffered any injury from the

renaming of the parks. While we can infer that the complaint‘s general allegations that

renaming the parks will erase and eliminate significant parts of the cultural history of

Memphis and have a negative impact on its historical tourism are applicable to CSOP and

the individual plaintiffs, those alleged injuries would be common to all citizens of

Memphis and therefore not sufficiently distinct to establish standing.

9

We note the defendants‘ argument that they were not given the opportunity to present material made

pertinent to their motion by the factual assertions presented for the first time in the Martin affidavit as

required by Rule 56. Without deciding the issue of whether, in light of the Martin affidavit, the trial court

erred in failing to allow the defendants such an opportunity, we conclude that even if the statements of the

Martin affidavit are taken as true and considered alongside the allegations in the complaint, they are still

not sufficient to establish CSOP‘s standing under the lower motion to dismiss threshold.

18

The injuries alleged to SCV International in the complaint are also not sufficient to

confer standing. The complaint alleges that in an effort to further their organizational

purposes of preserving history and educating the public, SCV International (along with

SCV Camp #215) funded the installation of various markers, statues, monuments, and

educational panels in the parks. The plaintiffs contend that by changing the park names,

the defendants deprived SCV International of the benefit of its efforts and expenditures

because the parks lost their identifying link to history and the historical sites within them

will be harder for the public to locate. We agree with the trial court‘s conclusion that

these alleged injuries were not sufficient to constitute a distinct and palpable injury. The

renaming of the parks has little, if any, impact on the group‘s ability to continue

educating the public on Civil War history. The complaint does not allege that SCV

International contributed to the purchase and installation of the Forrest Park name

marker. The other markers, statues, monuments, and educational panels funded by the

group remain in the parks and are available for viewing by the public. Finally, the

plaintiffs‘ contention that renaming the parks will make those sites more difficult for the

public to locate is purely conjectural and cannot serve as the basis for standing.

Lastly, the complaint fails to allege any injury to the Forrest descendants sufficient

to confer standing. With regard to the Forrest descendants, the complaint alleges as

follows:

6. Plaintiffs Kevin Bradley, Brooks Bradley, and Jesse Bradley are

great grandsons of Nathan Bedford Forrest; they are residents and citizens

of Shelby County, Tennessee.

7. Plaintiff John Ellis is the great grand nephew of Nathan Bedford

Forrest.

....

157. Forrest Park was dedicated to the memory of the Forrest Descendant

Plaintiffs‘ relative, Nathan Bedford Forrest. The Forrest Descendant

Plaintiffs have a vested interest that the name Forrest Park be preserved.

Those interests will be lost if the Defendants ultra vires actions are allowed

to proceed.

The plaintiffs‘ assertion that, by naming the park for General Forrest, the City conferred

on his descendants a legally cognizable interest in preservation of the park‘s name is a

legal conclusion, which, even on a motion to dismiss, we are not required to accept as

true. See Webb, 346 S.W.3d at 427 (―[C]ourts are not required to accept as true

19

assertions that are merely legal arguments or ‗legal conclusions‘ couched as facts.‖). The

plaintiffs have not cited any authority that supports their assertion on this point, nor has

our research revealed any such authority. Nevertheless, as we stated previously, in order

to establish standing, a plaintiff must show a distinct and palpable injury to a legally

protected interest. Darnell, 195 S.W.3d at 620. The injury must be ―concrete and

particularized‖ and ―actual or imminent, not conjectural or hypothetical.‖ Lujan, 504

U.S. at 560. The Forrest descendants have not alleged any concrete injury as a result of

Forrest Park‘s renaming or the City‘s method for doing so. In our view, there is no injury

inherent in the renaming of a park dedicated to an individual‘s relative. The existence of

a familial relationship between a party and the namesake of a public park is not, without

more, sufficient to create a legally cognizable interest in preservation of the park‘s name.

As such, we agree with the trial court‘s conclusion that the complaint does not allege any

injury to the Forrest descendants sufficient to confer standing.

V. CONCLUSION

The underlying issue in this case involves complex cultural and social concerns

that generate strong passions on both sides. While we appreciate the depth of those

feelings, it is not within the purview of this Court to resolve the larger cultural issue of

whether or how those who fought for the Confederacy should be honored or remembered.

Rather, it is the function of this Court to resolve the legal dispute between the parties

according to principles of law. Our decision should not be viewed as an endorsement of

either the City‘s decision to change the park names or the plaintiffs‘ desire to preserve

them.

In summary, the complaint demonstrates that SCV Camp #215, but not CSOP, the

individual plaintiffs, the Forrest descendants, or SCV International, has standing to

challenge the City Council‘s resolution renaming the historic parks. The judgment of the

trial court is therefore affirmed in part and reversed in part, and this cause is remanded

for such further proceedings as are necessary. Costs of this appeal are taxed one-half to

the Appellees, City of Memphis and Memphis City Council, and one-half to the

Appellants, Pam Hayes, Debbie Lewis, Harry Adams, Neal Bumpus, Jim Brown, John

Ellis, Mike Daugherty, Jack Smith, Adam Schmuck, Kevin Bradley, Brook Bradley,

Jesse Bradley, Sons of Confederate Veterans, Sons of Confederate Veterans Nathan

Bedford Forrest Camp #215, and Citizens to Save Our Parks, and their surety, for which

execution may issue, if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

20