The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 21, 2016 Session
ANDREW HIRT, ET AL. v. METROPOLITAN BOARD OF ZONING
APPEALS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY TENNESSEE
Appeal from the Chancery Court for Davidson County
No. 13-1330-III Ellen H. Lyle, Chancellor
___________________________________
No. M2015-02511-COA-R3-CV – Filed December 15, 2016
___________________________________
This appeal concerns a local zoning board’s denial of a permit to replace an old
billboard with a new digital billboard. After the zoning board denied the permit for the
new billboard, the applicants who had requested the permit filed a petition for a writ of
certiorari in chancery court. The chancery court found no basis to disturb the zoning
board’s denial of a permit based upon its review of the administrative record. Although
the applicants have appealed from the chancery court’s decision, we conclude that we
cannot reach the merits of their appeal. Because the applicants did not file a petition for a
writ of certiorari that complied with Tennessee Code Annotated section 27-8-106 within
sixty days of the zoning board’s order, we conclude that the chancery court was without
subject matter jurisdiction to review the zoning board’s actions. We accordingly vacate
the chancery court’s order and dismiss this case.
Tenn. R. App. P. 3 Appeal as of Right: Judgment of the Chancery Court Vacated
and Dismissed
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.
G. Kline Preston, IV, Nashville, Tennessee, for the appellants, Andrew Hirt and BMP
Partnership II.
J. Brooks Fox and Catherine J. Pham, Nashville, Tennessee, for the appellees,
Metropolitan Board of Zoning Appeals of the Metropolitan Government of Nashville
and Davidson County Tennessee.
OPINION
Background and Procedural History
The Appellants are the owners of a parcel of land located municipally at 4500
Harding Pike, Nashville, Tennessee 37205. This land is located adjacent to the
intersection of White Bridge Pike and Harding Pike and is the former site of a billboard.
In recent years, the billboard at the site had been used to advertise a hospital’s emergency
room wait time.
In June 2013, the Appellants applied to the Metropolitan Government Department
of Codes and Building Safety for a permit to replace the old billboard that had existed on
the site with a new LED digital billboard that was proposed to be located closer to the
street. After the Zoning Administrator denied the Appellants’ request for a permit, the
Appellants appealed to the Metropolitan Board of Zoning Appeals (“BZA”). On July 22,
2013, the BZA entered an order upholding the Zoning Administrator’s decision to deny a
permit.
On September 20, 2013, the Appellants filed a petition for a writ of certiorari in
the Davidson County Chancery Court. Within their petition, the Appellants contended
that the BZA had acted capriciously, illegally, and arbitrarily in denying their application
for a permit and contended that its decision was not supported by the evidence. The
Appellants also generally contended that the BZA had violated their equal protection
rights and asserted that other permit applicants had been granted permits in identical
factual circumstances. After the Appellants filed an amended petition for a writ of
certiorari on November 12, 2013, the trial court issued a writ of certiorari directing the
BZA to make a complete record of its proceedings regarding the subject property
available for review.
Following the filing of the administrative record from the BZA in the trial court,
the Appellants filed a motion to supplement the record to include applications for zoning
permits the BZA had previously approved that were allegedly identical and/or similar to
the Appellants’ application. The Appellants asserted that such proof would be relevant to
show that the BZA had acted capriciously and arbitrarily in denying their application for
a permit. The trial court eventually denied the motion to supplement the record by
finding that there were no “common circumstances between the [proposed evidence] and
the [Appellants’] Petition.”
On July 29, 2015, the trial court entered an order upholding the BZA’s decision to
deny the requested permit. Although the Appellants subsequently filed a motion to alter
or amend the trial court’s ruling pursuant to Rule 59 of the Tennessee Rules of Civil
-2-
Procedure, the trial court denied the motion by order entered on November 30, 2015.
This timely appeal then ensued.
Discussion
On appeal, the Appellants raise two issues for our review. First, they contend that
the trial court erred in upholding the BZA’s decision to deny a permit. Second, they
assert that the trial court erred by denying their motion to supplement the record. As will
be explained below, because we conclude that the trial court was without subject matter
jurisdiction to review the Appellants’ certiorari petition, these raised concerns are
pretermitted.
“The concept of subject matter jurisdiction involves a court’s lawful authority to
adjudicate a controversy brought before it.” Northland Ins. Co. v. State, 33 S.W.3d 727,
729 (Tenn. 2000) (citations omitted). It “involves the nature of the cause of action and
the relief sought . . . and can only be conferred on a court by constitutional or legislative
act.” Id. (citations omitted). Courts “cannot exercise jurisdictional powers that have not
been conferred directly on them expressly or by necessary implication.” Dishmon v.
Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999) (citation omitted).
Because subject matter jurisdiction concerns the basis on which the court derives its
authority to act, it cannot be waived. Sumner v. Campbell Clinic PC, 498 S.W.3d 20, 27
(Tenn. Ct. App. 2016) (citation omitted). Indeed, the parties cannot confer subject matter
jurisdiction on a trial court by an appearance, plea, consent, or silence. Staats v.
McKinnon, 206 S.W.3d 532, 542 (Tenn. Ct. App. 2006) (citations omitted). “The lack of
subject matter jurisdiction is so fundamental that it requires dismissal whenever it is
raised and demonstrated.” First Am. Trust Co. v. Franklin-Murray Dev. Co., L.P., 59
S.W.3d 135, 141 (Tenn. Ct. App. 2001) (citations omitted). On appeal, we are required
to consider the subject matter jurisdiction of both this Court and that of the trial court
“regardless of whether the existence thereof is presented as an issue.” Morrow v. Bobbitt,
943 S.W.2d 384, 392 (Tenn. Ct. App. 1996) (citations omitted). “[W]hen an appellate
court determines that a trial court lacked subject matter jurisdiction, it must vacate the
judgment and dismiss the case without reaching the merits of the appeal.” First Am.
Trust Co., 59 S.W.3d at 141 (citations omitted).
In cases such as the present one, a petition for a common-law writ of certiorari is
the “proper vehicle for seeking judicial review of a decision by a local board of zoning
appeals.” See Moore v. Metro. Bd. of Zoning Appeals, 205 S.W.3d 429, 435 (Tenn. Ct.
App. 2006) (citations omitted). In Tennessee, the decision to file a petition for a writ of
certiorari is governed by our State Constitution, as well as a number of statutory
provisions. In pertinent part, the Tennessee Constitution provides as follows:
-3-
The Judges or Justices of the Inferior Courts of Law and Equity, shall have
power in all civil cases, to issue writs of certiorari to remove any cause or
the transcript of the record thereof, from any inferior jurisdiction, into such
court of law, on sufficient cause, supported by oath or affirmation.
Tenn. Const. art. 6, § 10. In accordance with this provision, the Tennessee Code provides
that the “judges of the inferior courts of law have the power, in all civil cases, to issue
writs of certiorari to remove any cause or transcript thereof from any inferior jurisdiction,
on sufficient cause, supported by oath or affirmation.” Tenn. Code Ann. § 27-8-104(a).
Tennessee Code Annotated section 27-8-106 specifically provides that the “petition for
certiorari may be sworn to before the clerk of the circuit court, the judge, any judge of the
court of general sessions, or a notary public, and shall state that it is the first application
for the writ.” Tenn. Code Ann. § 27-8-106. When seeking review by certiorari, the
petition must be filed within sixty days from the order or judgment appealed from. See
Tenn. Code Ann. § 27-9-102. “Failure to file the petition within this time limit results in
the challenged judgment becoming final, which deprives a reviewing court of jurisdiction
over the matter.” Blair v. Tenn. Bd. of Prob. and Parole, 246 S.W.3d 38, 40 (Tenn. Ct.
App. 2007) (citation omitted).
As is relevant here, a trial court’s jurisdiction is not solely dependent on whether
the petitioner has timely filed a petition seeking certiorari review. Jurisdiction “is also
predicated upon the verification requirement in section 27-8-106.” Id. at 41. “Neither
the trial court nor the appellate court acquires jurisdiction over the petition unless it is
verified under [Tennessee Code Annotated section 27-8-106].” Id. (citations omitted).
The petitioner “must verify the contents of the petition and swear to the contents of the
petition under oath, typically by utilizing a notary public.” Wilson v. Tenn. Dep’t of
Corr., No. W2005-00910-COA-R3-CV, 2006 WL 325933, at *4 (Tenn. Ct. App. Feb. 13,
2006) (citations omitted). The requirement that a petitioner swear to the contents of the
petition under oath “necessarily connotes that the petitioner is first administered an oath
and then states in accordance with that oath that the contents of the petition are true.” Id.
at *3 (citation omitted).
In this case, the Appellants’ original petition for a writ of certiorari was timely
filed within the sixty-day time period provided for in Tennessee Code Annotated section
27-9-102. It did not, however, comply with the verification requirement of Tennessee
Code Annotated section 27-8-106. Attached to the end of the petition was an “Oath,”
which we reproduce in its entirety below:
-4-
Noticeably absent is the signature of any of the persons listed in Tennessee Code
Annotated section 27-8-106. As previously noted, that statute provides that “[t]he
petition for certiorari may be sworn to before the clerk of the circuit court, the judge, any
judge of the court of general sessions, or a notary public[.]” Tenn. Code Ann. § 27-8-106
(emphasis added). The Appellants’ failure to comply with the verification requirement
should have warranted dismissal of the petition. See Wilson, 2006 WL 325933, at *4
(affirming dismissal of petition when, despite petitioner’s verification that the petition’s
contents were true and correct, the petition was not notarized by a notary public).
Although the Appellants filed an amended petition for a writ of certiorari on
November 12, 2013, the amended petition also failed to comply with the verification
requirement of Tennessee Code Annotated section 27-8-106. Like the first petition, the
amended petition contained a representation that the matters set forth in the petition were
true and correct, but it did not reflect that it was “sworn to before the clerk of the circuit
court, the judge, any judge of the court of general sessions, or a notary public[.]” Tenn.
Code Ann. § 27-8-106. Reproduced in its entirety, the verification attached to the end of
the amended petition read as follows:
-5-
We note that when the trial court issued a writ of certiorari the day following the filing of
the amended petition, the trial court recited that the Appellants’ petition was “duly
sworn.” While the record does not reflect that the amended petition was duly sworn in
accordance with the statute, the trial court’s conclusion to the contrary would not be
dispositive in any event given the facts of this case. Assuming arguendo that the
amended petition had, in fact, complied with Tennessee Code Annotated section 27-8-
106, we note that it was not filed within sixty days of the BZA’s order. As such, the trial
court was without subject matter jurisdiction to conduct any judicial review. See Terry v.
Tenn. Dep’t of Corr., No. W2008-01907-COA-R3-CV, 2009 WL 1138122, at *3 (Tenn.
Ct. App. Apr. 28, 2009) (citation omitted) (“Failure to file a proper petition within the
sixty-day time limit results in the challenged judgment becoming final[.]”).
Conclusion
For the foregoing reasons, we conclude that the trial court was without subject
matter jurisdiction in this case. We accordingly vacate the trial court’s final order and
dismiss the Appellants’ petition. Costs of this appeal are assessed against the Appellants,
BMP Partnership II and Andrew Hirt, and their surety, for which execution may issue if
necessary. This case is remanded to the trial court for the collection of costs,
enforcement of the judgment, and for such further proceedings as may be necessary and
are consistent with this Opinion.
_________________________________
ARNOLD B. GOLDIN, JUDGE
-6-