Tennessee Firearms Association v. Metropolitan Government of Nashville and Davidson County, Tennessee

06/15/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 17, 2017 Session

TENNESSEE FIREARMS ASSOCIATION, ET AL. v. METROPOLITAN

GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,

TENNESSEE

Direct Appeal from the Chancery Court for Davidson County

No. 16-332-II Carol L. McCoy, Chancellor

No. M2016-01782-COA-R3-CV

This appeal involves an attempt to challenge the legality of a gun show ban that was

adopted for the Tennessee State Fairgrounds. The trial court dismissed the complaint on

numerous alternative grounds. We affirm.

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

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.

John Isaac Harris, Nashville, Tennessee, and Scott L. Braun and Timothy R. Rudd,

Dayton, Ohio, for the appellants, Tennessee Firearms Association, and International Gun-

A-Rama, Inc.

Catherine Jane Pham, and Lora Barkenbus Fox, Nashville, Tennessee, for the appellee,

Metropolitan Government of Nashville and Davidson County, Tennessee.

OPINION

I. FACTS & PROCEDURAL HISTORY

The Metropolitan Government of Nashville and Davidson County (“Metro”) owns

and operates the Tennessee State Fairgrounds by and through a Metropolitan Board of

Fair Commissioners (“the Board”). Metro generates revenue by renting the Fairground

facilities to vendors.

For over thirty years, International Gun-A-Rama, Inc., d/b/a Bill Goodman’s Gun

and Knife Show (“Goodman”) rented facilities at the Fairgrounds to hold gun and knife

shows. In November 2015, the Board presented Goodman with a draft proposal that

would require additional restrictions at his gun shows beyond those imposed by state and

federal law, such as prohibitions on sales between private parties at the gun shows.

Apparently, Goodman and his attorney indicated that they would oppose any such

restrictions. At a public meeting of the Board on December 1, 2015, the Board voted to

terminate all existing contracts with gun show promoters and to prohibit any additional

gun shows at the Fairgrounds until the Board decided otherwise. At its next meeting, in

February 2016, the Board was advised by its legal counsel that Goodman had already

executed contracts to rent the Fairground facilities through the end of 2016, and no basis

existed for terminating those contracts. As such, the Board decided to honor the existing

contracts and let them expire by their terms. However, the Board adhered to its original

decision to prohibit the booking of any additional gun shows going forward, beginning

with the 2017 calendar year.

In March 2016, Goodman submitted a request to reserve the Fairground facilities

for numerous dates in 2017. The director of events for the Fairgrounds notified

Goodman that he could not book any 2017 dates for gun shows “by the current directive

of the Fair Board.”

On April 5, 2016, Goodman and the Tennessee Firearms Association (“TFA”)

jointly filed a complaint for declaratory judgment in the chancery court of Davidson

County. According to the complaint, TFA is a nonprofit corporation formed to promote

the right to keep and bear arms, with members consisting primarily of residents of the

State of Tennessee. As “Count I,” the complaint alleged that the Board’s recent decision

to ban gun shows at the Fairgrounds constituted “a de facto local limitation on the legal

transfer of firearms” in violation of Tennessee Code Annotated section 39-17-1314(a),

which provides:

Except as otherwise provided by state law or as specifically provided in

subsection (b), the general assembly preempts the whole field of the

regulation of firearms, ammunition, or components of firearms or

ammunition, or combinations thereof including, but not limited to, the use,

purchase, transfer, taxation, manufacture, ownership, possession, carrying,

sale, acquisition, gift, devise, licensing, registration, storage, and

transportation thereof, to the exclusion of all county, city, town,

municipality, or metropolitan government law, ordinances, resolutions,

enactments or regulation. No county, city, town, municipality, or

metropolitan government nor any local agency, department, or official shall

occupy any part of the field regulation of firearms, ammunition or

components of firearms or ammunition, or combinations thereof.

2

As “Count II,” the complaint alleged that the Board was not authorized to ban gun shows

at the Fairgrounds pursuant to section 11.602(d) of the Metro Charter, which provides:

All activities being conducted on the premises of the Tennessee State

Fairgrounds as of December 31, 2010, including, but not limited to, the

Tennessee State Fair, Expo Center Events, Flea Markets, and Auto Racing,

shall be continued on the same site. No demolition of the premises shall be

allowed to occur without approval by ordinance receiving 27 votes by the

Metropolitan Council or amendment to the Metropolitan Charter.

The plaintiffs sought a declaration that the Board was precluded from adopting a blanket

ban on gun shows at the Fairgrounds by both the Metro Charter provision and the

aforementioned statute. They sought an order requiring Metro to make its facilities

available to Goodman and to other gun show promoters without the imposition of any

additional restrictions. They also sought an award of “nominal damages” against Metro

based on its imposition of unauthorized restrictions on the transfer of firearms. On May

19, 2016, the trial court granted the plaintiffs’ motion for a restraining order preventing

Metro from taking any action to make the 2017 dates requested by Goodman unavailable

for booking.

Metro filed a motion to dismiss the complaint on numerous grounds, including

lack of standing and failure to state a claim. Metro submitted numerous provisions of the

Metro Charter for the court’s consideration. In opposition to the plaintiffs’ request for

injunctive relief, Metro also submitted to the court the minutes and transcripts of the

Board’s meetings, an affidavit from the director of the Fairgrounds, Goodman’s previous

rental contract, a list of events held at the Fairgrounds in 2010, and other documents.

After a hearing, the trial court entered a written order on July 20, 2016, denying

the plaintiffs’ request for injunctive relief, dissolving the restraining order, and granting

Metro’s motion to dismiss. The order states that the trial court considered the parties’

motions and briefs, the affidavit of the director of the Fairgrounds, the previous contract,

the records of the Board meetings, the list of events at the Fairgrounds in 2010, and other

documents. Ultimately, the trial court found that dismissal of the complaint was

warranted on numerous grounds. The trial court found that TFA lacked standing because

it had no interest in Goodman’s rental contracts with the Board. In addition, the trial

court found that the Board “was acting pursuant to state law authority” when it decided

whether to approve a gun show in its capacity as administrator of the Fairground

premises, pursuant to Tennessee Code Annotated section 39-17-1311. The trial court

also found that the plaintiffs’ interpretation of the Metro Charter provision was

inconsistent with the intent and language of the provision itself. The trial court found that

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“[t]he voters desired that the types of activities that are mentioned in the Charter

Amendment would continue, but they did not seek to restrict the Fair Board’s ability to

set the terms and conditions upon which those activities would be conducted.”

Alternatively, the trial court found that the plaintiffs had no “private right of action” to

enforce the Metro Charter provision that was allegedly violated. For all of these reasons,

the trial court dismissed the plaintiffs’ complaint.

The plaintiffs timely filed a notice of appeal on August 19, 2016. That same day,

the plaintiffs also filed a “Motion to Amend Final Order.” The motion to amend asserted

that the trial court “erred in its application of the law” and should have denied the motion

to dismiss. After analyzing each of the trial court’s rulings, the motion asked the court to

“reconsider and amend” its order. After a hearing, the trial court denied the motion to

amend on the basis that it “simply [sought] to relitigate issues” that were already

adjudicated. The plaintiffs then filed an amended notice of appeal.

II. ISSUES PRESENTED

The plaintiffs present the following issues for review on appeal:

1. Whether the trial court erred in granting Metro’s Rule 12.02(6)

motion to dismiss; and

2. Whether the trial court erred in denying the plaintiffs’ Rule 59.04

motion to amend the final order.

For the following reasons, we affirm the decision of the chancery court and remand for

further proceedings.

III. STANDARD OF REVIEW

At the outset, we find it necessary to examine the procedural posture of this case.

Metro filed a motion to dismiss for failure to state a claim, along with various provisions

of the Metro Charter. In opposition to the plaintiffs’ request for injunctive relief, Metro

submitted numerous additional documents for the court to review, including the minutes

and transcripts of Board meetings, an affidavit, a list of events held at the Fairgrounds, a

previous contract, and other documents. The trial court heard the request for injunctive

relief and the motion to dismiss at the same hearing. In its written order, the trial court

stated that it granted Metro’s motion to dismiss based on “the entire record in this

matter.” Therefore, we will review the trial court’s decision as a grant of summary

judgment to Metro. See Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 555 n.8

(Tenn. Ct. App. 2015) (quoting Tenn. R. Civ. P. 12.02) (“Converting a motion to dismiss

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under Rule 12.02(6) into a motion for summary judgment is appropriate when ‘matters

outside the pleading are presented to and not excluded by the [trial] court.’”). We review

a trial court’s entry of summary judgment as a question of law with no presumption of

correctness attached to the trial court’s decision. Sherrill v. Souder, 325 S.W.3d 584, 596

(Tenn. 2010). A trial court’s interpretation of statutes also involves questions of law that

appellate courts review de novo without a presumption of correctness. Shore v. Maple

Lane Farms, LLC, 411 S.W.3d 405, 414 (Tenn. 2013).

IV. DISCUSSION

A. Standing of TFA

We begin with the issue of TFA’s standing. According to the Tennessee Supreme

Court,

The doctrine of standing is used to determine whether a particular plaintiff

is entitled to judicial relief. Knierim [v. Leatherwood], 542 S.W.2d [806,

808 (Tenn. 1976)]. It is the principle that courts use to determine whether a

party has a sufficiently personal stake in a matter at issue to warrant a

judicial resolution of the dispute. SunTrust Bank, Nashville v. Johnson, 46

S.W.3d 216, 222 (Tenn. Ct. App. 2000). Persons whose rights or interests

have not been affected have no standing and are, therefore, not entitled to

judicial relief. Lynch v. City of Jellico, 205 S.W.3d 384, 395 (Tenn. 2006).

Metro. Gov’t of Nashville v. Bd. of Zoning Appeals of Nashville, 477 S.W.3d 750, 755

(Tenn. 2015) (quoting State v. Harrison, 270 S.W.3d 21, 27-28 (Tenn. 2008)). “The

party invoking the court’s jurisdiction has the burden of establishing the elements of

standing.” Hayes v. City of Memphis, No. W2014-01962-COA-R3-CV, 2015 WL

5000729, at *9 (Tenn. Ct. App. Aug. 21, 2015) (no perm. app. filed).

The trial court found that TFA lacked standing because it had “no interest in Mr.

Goodman’s contracts with the Fair Board.” The trial judge noted, “They can be an active

cheering party all they want, but they are not qualified to stand as a party litigant in this

lawsuit.” On appeal, the plaintiffs maintain that TFA has standing to challenge the

Board’s gun show ban. In their brief, they quote two sentences from Hayes. One states

that an organizational plaintiff may establish standing to sue for an injury to itself in its

own right, and the other lists elements that organizational plaintiffs may alternatively

show to establish standing to sue as a representative of its members with standing.1

1

Those elements are: “(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.” Hayes, 2015

5

However, the plaintiffs fail to analyze or explain how either type of standing was

established by TFA under the facts of this case. They simply state, “Here, [TFA] has

standing both in its own right and on behalf of its members arising out of the Fair Board’s

illegal termination of gun shows at the Nashville Fairgrounds that are attended by

members of [TFA].”

“It is not the role of the courts, trial or appellate, to research or construct a

litigant’s case or arguments for him or her, and where a party fails to develop an

argument in support of his or her contention or merely constructs a skeletal argument, the

issue is waived.” Sneed v. Bd. of Prof'l Responsibility of Supreme Court, 301 S.W.3d

603, 615 (Tenn. 2010). “[P]arties must thoroughly brief the issues they expect the

appellate courts to consider.” Waters v. Farr, 291 S.W.3d 873, 919 (Tenn. 2009).

Because the plaintiffs failed to develop more than a skeletal argument regarding TFA’s

standing, we decline to consider the issue on appeal.

B. Preemption

We now turn to the substantive allegations of Goodman’s complaint. As “Count

I,” Goodman alleged that Tennessee Code Annotated section 39-17-1314(a) precluded

the Board from enacting a policy creating a blanket ban on gun shows at the Fairgrounds.

Again, the statute provides:

Except as otherwise provided by state law or as specifically provided in

subsection (b), the general assembly preempts the whole field of the

regulation of firearms, ammunition, or components of firearms or

ammunition, or combinations thereof including, but not limited to, the use,

purchase, transfer, taxation, manufacture, ownership, possession, carrying,

sale, acquisition, gift, devise, licensing, registration, storage, and

transportation thereof, to the exclusion of all county, city, town,

municipality, or metropolitan government law, ordinances, resolutions,

enactments or regulation. No county, city, town, municipality, or

metropolitan government nor any local agency, department, or official shall

occupy any part of the field regulation of firearms, ammunition or

components of firearms or ammunition, or combinations thereof.

Tenn. Code Ann. § 39-17-1314(a) (emphasis added). Goodman argued that the Board’s

refusal to rent its facilities to gun show promoters constituted “a de facto local limitation

on the legal transfer of firearms” that was prohibited and preempted by the statute.

WL 5000729, at *9 (citation omitted).

6

The trial court disagreed. It found that the Board “was acting pursuant to state law

authority” when it decided whether to approve gun shows on the premises of the

Fairgrounds in its capacity as administrator of the Fairgrounds. The trial court found that

such authority was provided by another statute within the same Chapter and Part,

Tennessee Code Annotated section 39-17-1311, which provides, in pertinent part:

(a) It is an offense for any person to possess or carry, whether openly or

concealed, with the intent to go armed, any weapon prohibited by § 39-17-

1302(a), not used solely for instructional, display or sanctioned ceremonial

purposes, in or on the grounds of any public park, playground, civic center

or other building facility, area or property owned, used or operated by any

municipal, county or state government, or instrumentality thereof, for

recreational purposes.

(b)(1) Subsection (a) shall not apply to the following persons:

....

(J) . . . .

....

(iii) A person possessing guns or knives when conducting or attending “gun

and knife shows” when the program has been approved by the

administrator of the recreational building or property[.]

(Emphasis added.) The trial court found that “[t]he Nashville Fairgrounds, by its

nomenclature and the history of events that have been held there, constitutes a

recreational facility owned by a governmental entity.” As such, the court concluded that

the statute permits a person to possess a firearm at the Fairgrounds “if that person is

conducting or attending a gun show that has been approved by the Fair Board.” By

extension, the court concluded that section 39-17-1311 authorized the Board to decide

whether or not to approve a gun show on the premises of the Nashville Fairgrounds.

On appeal, Goodman claims that the trial court erred in concluding that a privately

rented facility such as the Fairgrounds is used for “recreational purposes.” See Tenn.

Code Ann. § 39-17-1311(a). Goodman claims that the Fairgrounds is closed to the public

when not being utilized for activities and that it is merely “a facility made available to

rent to others who use it as they contract to use it.” Goodman also asserts that the trial

court should have permitted discovery into the property’s uses. However, the record

before us does not demonstrate that Goodman sought to conduct discovery in the trial

7

court below.2 In response to Metro’s motion to dismiss, Goodman only suggested that “it

is questionable whether the Nashville Fairgrounds may be deemed to be operated for

‘recreational purposes’ . . . when it is rented to a private party for a private show,” but

Goodman suggested that the court did not need to reach that issue based on Goodman’s

reading of the Metro Charter. Meanwhile, Metro submitted to the trial court a list of

events held at the Fairgrounds in 2010, and the trial court apparently relied on that list in

order to conclude that “[t]he Nashville Fairgrounds, by its nomenclature and the history

of events that have been held there, constitutes a recreational facility owned by a

governmental entity.” Goodman submitted no evidence to the contrary.

The Tennessee Supreme Court has recognized that within the Tennessee Code,

“the meaning of the word ‘recreational’ varies depending on the context in which it is

used.”3 Shore, 411 S.W.3d at 428. By its terms, the particular statute in this case applies

to guns carried on “the grounds of any public park, playground, civic center or other

building facility, area or property owned, used or operated by any municipal, county or

state government, or instrumentality thereof, for recreational purposes,” and it permits

guns to be carried at gun shows on the property “when the program has been approved by

the administrator of the recreational building or property[.]” Tenn. Code Ann. § 39-17-

1311(a), (b)(1)(J)(iii) (emphasis added). Merriam-Webster’s Collegiate Dictionary

defines “recreational” as “of, relating to, or characteristic of recreation.” Merriam-

Webster’s Collegiate Dictionary 1040 (11th ed. 2014). It defines “recreation,” as

relevant here, as “refreshment of strength and spirits after work; also: a means of

refreshment or diversion.” Id.

2

Goodman does not cite to any location in the record to indicate that he sought to conduct discovery, and

nothing in the record before us indicates that such a request was made. At oral argument before this

Court, counsel for Goodman stated that he requested discovery during the hearing on the motion to

dismiss and that the trial court declined to permit such discovery. However, we have no transcript of the

hearing to confirm that such a request was made and denied. We cannot simply assume that the recited

facts are true. Statements by counsel during oral argument cannot be considered in lieu of a record of the

proceeding. State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). “[A]n appellate court is

precluded from considering an issue when the record does not contain a transcript or statement of what

transpired in the trial court with respect to that issue.” Id. Here, the record before us does not establish

any basis to grant Goodman relief on an issue regarding discovery.

3

To demonstrate this point, the supreme court in Shore cited Tennessee Code Annotated section 11-7-

103(a) (2012) (identifying certain recreational purposes as a basis for making tracts of land eligible for

conservation and protection under the Tennessee Heritage Conservation Trust Fund); Tennessee Code

Annotated section 11-10-101(6) (2012) (defining “recreational purposes” with regard to the liability of

landowners who lease their property to the State for recreational purposes); Tennessee Code Annotated

section 11-25-104(1) (2012) (identifying certain “recreational opportunities” as “adventure tourism

activities” for the purpose of the Doe Mountain Recreation Authority Act of 2012); Tennessee Code

Annotated section 70-7-102(a) (2012) (limiting the liability of landowners to persons engaging in

“recreational activities” on the property without the landowner’s permission).

8

We agree with the trial court’s conclusion that the Fairground facilities are

recreational property within the meaning of the statute. The Metro Charter authorizes the

Board to hold “fairs and expositions” at the Fairgrounds and to lease the property for

amusement purposes. The list of events held at the Fairgrounds includes the Tennessee

State Fair, flea markets, bicycle clubs, neighborhood meetings, charity events, antique

shows, wrestling, lawn and garden shows, barbecue events, birthday parties, races,

boxing events, car shows, boat shows, toy train shows, dog shows, bird shows, and other

similar events. We reject Goodman’s suggestion that the Fairground facilities are not

recreational facilities simply due to the fact that they are sometimes rented and/or closed

to the public. The Office of the Attorney General construed this statute and considered

the meaning of a public park or recreational facility within the meaning of the statute in

an opinion dated July 29, 2015. We find its reasoning persuasive:

The statute does not make any exceptions for facilities that are owned by a

county or municipality but are operated under contract by a nonprofit

corporation or other non-governmental entity. It makes no exception for

facilities that charge admission or user fees or for facilities that have fences

or other barriers to control ingress and egress. Applicability of the statute is

not limited to normal or customary hours of operation of the facilities, and

there is no exception for facilities that may be temporarily used for special

events with limited attendance.

....

By its plain terms, as amended, Tenn. Code Ann. § 39-17-1311

applies to all parks and all other recreational facilities that are owned or

operated by a county or municipality. . . . Whether a fee is charged for use

or admission or whether use or admission is free of charge is irrelevant.

Likewise, it is irrelevant whether access is controlled by physical barriers or

not.

Moreover, an admission or use charge or a fence would not cause a

public park or other public facility to lose its status as a public park or

public facility. The term “public” commonly connotes property that has

been set aside or is used to serve the state, county, or municipality as a

whole as opposed [to] property used for private gain. See, Webster’s Ninth

New Collegiate Dictionary, at 952 (1988). The nature or character of the

facility thus depends upon its purpose or the reason for its existence. The

fact that admission or use fees may be charged does not alter the public

character of a public facility. For example, the legislature has from time to

time authorized the construction of toll roads and bridges. Those roads and

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bridges were intended to serve the public at large. That purpose is not

changed by the imposition of the costs of construction and maintenance on

those who use them. See, e.g., Montgomery County Clarksville &

Russellville Turnpike Co., 109 S.W. 1152 (Tenn. 1908). State parks provide

another example. Fees are charged to use campgrounds, golf courses, and

other recreational facilities and to stay in lodges or cabins that are located

within state parks. Such facilities do not lose their public character because

the fee or other charge is imposed to defray the cost of providing the

services offered and maintaining the properties.

Nor does the presence of gates, fences, or other barriers destroy the

public character of a park or other public facility. Many municipal and

county parks and other recreational facilities are not always open on a 24/7

basis. They often have set days and hours of operation and commonly use

locked doors or gates and walls and fences to control access and to secure

the property when it [is] not in operation. Public swimming pools are a

prime example, as are dog parks. Controlled and limited access to

swimming pools is, indeed, mandatory for safety reasons, but that does not

make the swimming pool non “public.” In short, a park or other facility

will not lose its public character simply because access is limited or

controlled either physically or by the imposition of a fee.

Tenn. Op. Atty. Gen. No. 15-63, 2015 WL 4711040 (July 29, 2015). For these same

reasons, we conclude that the Fairgrounds is a recreational property subject to Tennessee

Code Annotated section 39-17-1311 even though it is sometimes rented and/or closed to

the public. As a recreational facility, the statute contemplates that the administrator of

the Fairgrounds has authority to approve (or disapprove) of a gun show at the facility.

See Tenn. Code Ann. § 39-17-1311(b)(1)(J)(iii) (permitting guns to be carried at gun

shows on the recreational property “when the program has been approved by the

administrator of the recreational building or property”). Accordingly, the Board did not

run afoul of the preemption provision of Tennessee Code Annotated section 39-17-

1314(a), which provides that the general assembly preempts the field of firearm

regulation to the exclusion of metropolitan governments “[e]xcept as otherwise provided

by state law.” Making a decision to allow or disallow a gun show at a government-

owned recreational facility is a power specifically recognized “by state law” pursuant to

section 39-17-1311. It is not an unauthorized or preempted de facto local limitation on

the transfer of firearms. The trial court’s decision as to this issue is affirmed.

C. The Metro Charter

In “Count II” of the complaint, Goodman alleged that the Board was not

10

authorized to ban gun shows at the Fairgrounds due to section 11.602(d) of the Metro

Charter, which provides:

All activities being conducted on the premises of the Tennessee State

Fairgrounds as of December 31, 2010, including, but not limited to, the

Tennessee State Fair, Expo Center Events, Flea Markets, and Auto Racing,

shall be continued on the same site. No demolition of the premises shall be

allowed to occur without approval by ordinance receiving 27 votes by the

Metropolitan Council or amendment to the Metropolitan Charter.

Goodman asserted that he was regularly conducting gun shows at the Fairgrounds as of

December 31, 2010, and therefore, gun shows were among the activities protected by the

Charter provision. He asked the trial court to declare that the Charter provision precluded

a gun show ban and to order Metro to make its facilities available for gun shows.

The trial court concluded that Goodman’s claim must be dismissed because

Goodman had “no private right of action to enforce the provisions of the Metro Charter.”

Specifically, the trial court found no mechanism for enforcing the Charter provision as it

related to any specific activity, and no enforceable right to contract with Metro. The trial

court concluded that the Metro Council was authorized to take appropriate steps against

the Board if it deemed the Board’s decision regarding gun shows to be in violation of the

Metro Charter. Finding no basis for a private right of action, the trial court stated that

dismissal was appropriate “on that basis alone.”

The court went on to address the “number of other arguments” that were raised in

Metro’s motion to dismiss. As an alternative ground for dismissal, the trial court found

that Goodman’s substantive interpretation of the Charter provision was not supported by

the language and intent of the Charter provision itself, which had been amended by voter

referendum in 2011. The trial court noted that the Fairgrounds had “a long history” of

operation for over three decades and that many people who participate in events there are

“very protective of its existence.” The trial court found that this sentiment was reflected

by the passage of the charter amendment, as “[t]he voters desired that the types of

activities that are mentioned in the Charter Amendment would continue, but they did not

seek to restrict the Fair Board’s ability to set the terms and conditions upon which those

activities would be conducted.” Goodman challenges both of these rulings on appeal.

1. Private Right of Action

“‘A private right of action is the right of an individual to bring suit to remedy or

prevent an injury that results from another party’s actual or threatened violation of a legal

requirement.’” Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427,

11

433 (Tenn. 2017) (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 296 (3d Cir. 2007)).

While some statutes and rules provide a private remedy by their express terms, others

define legal duties but are silent about whether an individual may bring suit to enforce

them. Id. The plaintiff bears the burden of establishing the existence of a private right of

action. Id. at 434. When the statute or rule at issue does not expressly grant a private

right of action, courts must examine the language of the provision and its legislative

history to ascertain whether the legislative body intended to create an implied right of

action.4 Id. When discerning legislative intent, appropriate factors for consideration

include:

(1) whether the party bringing the cause of action is an intended beneficiary

within the protection of the statute, (2) whether there is any indication of

legislative intent, express or implied, to create or deny the private right of

action, and (3) whether implying such a remedy is consistent with the

underlying purposes of the legislation.

Id. at 435 (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 855-56 (Tenn.

2010)). “[I]t is the legislative body that has the authority to create legal rights and

interests and no right of action can be brought until there is legislative authority for that

right of action.” Gillespie v. City of Memphis, No. W2007-01786-COA-R3-CV, 2008

WL 2331027, at *9 (Tenn. Ct. App. June 5, 2008) (quotation omitted).

On appeal, Goodman does not analyze these factors or legal principles. Instead,

he insists that “[t]here is no ‘private right of action’ issue in this case” to preclude the

relief requested. Goodman contends that the question of whether a private right of action

exists “relates solely to the issue of monetary damages.” As such, Goodman claims that

the trial court erred in dismissing his claims for declaratory judgment and injunctive

relief (regarding the Metro Charter provision) due to the court’s finding regarding the

absence of a private right of action. Goodman asserts that “there is no need” for a private

right of action and that the Tennessee Declaratory Judgment Act provides all the

authority that is required for him to obtain the declaratory relief he sought. We disagree.

Tennessee appellate courts have considered whether a private right of action

existed in a number of cases seeking a declaratory judgment and/or injunctive relief. In

fact, earlier this year, the Tennessee Supreme Court affirmed the dismissal of a

declaratory judgment action because the federal act that was allegedly violated did not

provide a private cause of action that permitted the plaintiffs to enforce its provisions for

their benefit. West v. Schofield, --- S.W.3d ---, No. M2015-01952-SC-RDM-CV, 2017

WL 1376946, at *16 (Tenn. Mar. 28, 2017). In West, inmates filed a declaratory

4

But see Tenn. Code Ann. § 1-3-119 (effective July 1, 2012, providing that no court shall interpret a

statute as impliedly creating a private right of action except as otherwise provided in that section).

12

judgment action alleging that the State’s lethal injection protocol violated the federal

Controlled Substances Act (“CSA”). Id. at *1. The trial court found that the inmates had

“no cause of action” under the CSA and granted the defendants’ motion for judgment on

the pleadings. Id. at *14. The supreme court affirmed the dismissal and “reject[ed] their

attempt to utilize the CSA in this context,” noting that numerous courts had held that the

CSA “does not provide a private cause of action which would permit the Plaintiffs to

enforce its provisions for their benefit.”5 Id. at *16.

Other courts have also considered whether a private right of action existed to

support claims for declaratory or injunctive relief. See, e.g., Am. Heritage Apartments,

Inc. v. Hamilton Cnty. Water & Wastewater Treatment Auth., No. E2014-00302-COA-

R3-CV, 2015 WL 399215, at *8-10 (Tenn. Ct. App. Jan. 30, 2015), aff’d in part, rev’d in

part 494 S.W.3d 31 (Tenn. 2016) (concluding that a private right of action existed

pursuant to the Tennessee Water and Wastewater Treatment Authority Act to permit the

plaintiff’s declaratory judgment action that the county water authority exceeded its

authority by imposing a particular charge);6 Morrison v. City of Bolivar, No. W2011-

01874-COA-R9-CV, 2012 WL 2151480, at *2-10 (Tenn. Ct. App. June 14, 2012)

(concluding that the Revenue Bond Law did not create an individual private right of

action and therefore dismissal of the complaint seeking a declaratory judgment and other

relief based on a violation of the statute was warranted); State, ex rel. Deselm v. Tenn.

Peace Officers Standards Comm’n, No. M2007-01855-COA-R3-CV, 2008 WL 4614523,

at *3 (Tenn. Ct. App. Oct. 16, 2008) (concluding that the appellants lacked standing to

bring their action for declaratory judgment and additional relief based on an alleged

violation of the Little Hatch Act because it did not provide for a private right action);

Gray v. City of Memphis, No. W2004-00976-COA-R3-CV, 2005 WL 652786, at *1-3

(Tenn. Ct. App. Mar. 22, 2005) (concluding that a private right of action existed to

enforce the Mail Order Statute, which the plaintiffs sought to enforce through a complaint

for declaratory and injunctive relief); Image Outdoor Advert., Inc. v. CSX Transp., Inc.,

No. M2000-03207-COA-R3-CV, 2003 WL 21338700, at *8 (Tenn. Ct. App. June 10,

2003) (affirming dismissal of a complaint for declaratory and injunctive relief because no

private right of action existed to enforce the Tennessee Billboard Act).

We reject Goodman’s insistence that the Declaratory Judgment Act provides an

independent basis for him to allege a violation of the Metro Charter regardless of any

issue regarding a private right of action. “‘A litigant’s request for declaratory relief does

not alter a suit’s underlying nature. Declaratory judgment actions are subject to the same

5

“The terms ‘private right of action’ and ‘private cause of action’ are used interchangeably.” Hardy, 513

S.W.3d at 433.

6

Although the Tennessee Supreme Court later reversed in part, the supreme court adopted the court of

appeals’ reasoning and analysis on the issue of whether a private right of action existed. Am. Heritage

Apartments, 494 S.W.3d at 52.

13

limitations inherent in the underlying cause of action from which the controversy arose.’”

Carter v. Slatery, No. M2015-00554-COA-R3-CV, 2016 WL 1268110, at *6 (Tenn. Ct.

App. Feb. 19, 2016), perm. app. denied (Tenn. Aug. 18, 2016), cert. denied 137 S. Ct.

669 (2017) (quoting 26 C.J.S. Declaratory Judgments § 124).7

In sum, we discern no merit in Goodman’s assertion that the trial court erred in

requiring a “private right of action” to support his claim for declaratory and injunctive

relief regarding the Metro Charter. Because this issue is dispositive, Goodman’s

challenge to the trial court’s alternative holding regarding the meaning of the Charter

provision is pretermitted.

D. The Motion to Amend

Finally, Goodman argues that the trial court erred in denying his motion to amend.

The motion to amend was heard by a different chancellor after the original chancellor

retired. As the trial court noted, the parties agreed that the motion to amend presented no

new arguments or evidence. Instead, Goodman’s motion to amend reasserted his

previous arguments made in connection with the motion to dismiss regarding the issues

of standing, a private right of action, and the Metro Charter. Goodman asked the trial

court to “reconsider and amend” its order of dismissal resolving these issues in order to

correct a clear error of law or to prevent injustice.8 The trial court denied the motion on

the basis that it simply sought to relitigate issues that were already adjudicated. On

appeal, Goodman argues that the trial court erred in deeming his motion an improper

attempt to relitigate the issues, and he claims that the trial court should have considered

the merits of his motion to amend.

Having reviewed the trial court’s order of dismissal and the substantive arguments

raised by Goodman in the motion to amend and again on appeal, we find no clear error of

law or injustice that would have entitled Goodman to the relief he sought in his motion to

amend, i.e., denial of the motion to dismiss. Therefore, even assuming for the sake of

argument that a procedural error occurred, he is not entitled to reversal based on this

issue. See Tenn. R. App. P. 36(b); Mobile Home City, Inc. v. Dependable Ins. Co., No.

569, 1985 WL 4132, at *2 (Tenn. Ct. App. Dec. 6, 1985) (concluding that any error in

failing to consider a second motion to amend was harmless as the plaintiff failed to raise

7

As aptly noted by the Sixth Circuit, the absence of a private right of action “stops [the] declaratory

judgment action in its tracks.” Michigan Corr. Org. v. Michigan Dep’t of Corr., 774 F.3d 895, 907 (6th

Cir. 2014). “No private right of action means no underlying lawsuit” and “no declaratory relief.” Id.

8

“The Tennessee Rules of Civil Procedure do not authorize motions to reconsider; such motions are often

deemed by courts as motions to alter or amend the judgment pursuant to Rule 59.04.” Haynes v.

Lunsford, No. E2015-01686-COA-R3-CV, 2017 WL 446987, at *4 (Tenn. Ct. App. Feb. 2, 2017) (no

perm. app. filed).

14

anything in his second motion that was not already addressed by the trial court and

correctly ruled upon by the chancellor).

V. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is hereby

affirmed and remanded. Costs of this appeal are taxed to the appellants, Tennessee

Firearms Association, and International Gun-A-Rama, Inc. d/b/a Bill Goodman’s Gun

and Knife Show, and their surety, for which execution may issue if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

15