The Metropolitan Government of Nashville And Davidson County v. RSF Investors, LLC

07/14/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 24, 2017 Session

THE METROPOLITAN GOVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY V. RSF INVESTORS, LLC

Appeal from the Circuit Court for Davidson County

No. 13C-2264 Kelvin D. Jones, Judge

No. M2016-02221-COA-R3-CV

This appeal arises from an enforcement action by the Metropolitan Government of

Nashville and Davidson County (“Metro”) against the owner of a restaurant located

within the Broadway Historic Preservation District in Nashville, Tennessee. Metro

commenced the action to require the owner to comply with Metropolitan Code of Laws

(M.C.L) § 17.40.410 and the preservation permit the Metropolitan Historic Zoning

Commission (“the Commission”) issued upon the application of the owner. Following

discovery, the parties filed cross motions for summary judgment. The trial court granted

Metro’s motion and denied the owner’s motion. The order required the owner to remove

the portion of the installation that did not comply with the permit. This appeal followed.

The owner raises three principal issues. It contends: (1) the glass panels it was ordered to

remove do not fall within the purview of the Commission; (2) Metro cannot enforce a

permit that has expired; and (3) summary judgment is inappropriate because material

facts are in dispute. Metro contends we lack jurisdiction to hear this appeal because the

appeal is untimely. We have determined the appeal is timely, and the issues raised by the

owner are unavailing. Therefore, we affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

Steven J. Meisner, Nashville, Tennessee, for the appellant, RSF Investors, LLC.

Lora Barkenbus Fox and Patrick J. Bradley, Nashville, Tennessee, for the appellee, The

Metropolitan Government of Nashville and Davidson County.

OPINION

The defendant, RSF Investors, LLC (“RSF”), owns real property located at the

corner of Fifth Avenue South and Broadway in downtown Nashville, Tennessee, where it

operates a restaurant and bar, Rippy’s Smokin’ Bar and Grill (“Rippy’s”). The building is

located within the Broadway Historic Preservation District where the Metropolitan

Historic Zoning Commission (“the Commission”) has jurisdiction “to insure the ongoing

preservation of structures of historic value.” M.C.L. § 17.36.100. Prior to 2010, the

building was one story. In 2010, RSF commenced construction of a rooftop addition

without applying for a preservation permit from the Commission. On March 5, 2010, the

Historic Zoning Administrator sent a letter to RSF requesting the removal of the addition

or that RSF immediately apply for a preservation permit so the Commission could

determine if the addition complied with the Broadway Historic Zoning Overlay. In May

2010, RSF applied for a preservation permit; however, it did not halt construction.

When RSF’s application for a permit came on for hearing before the Commission

in July 2010, members of the Commission expressed concern with the appearance of the

canopy that RSF had constructed. Specifically, they stated that it did not comport with the

architectural character of the neighborhood, and they wanted a design that would blend in

with the first floor of the building. Having anticipated this concern, RSF presented an

architectural design for the second floor canopy that divided the second story into bays

that matched the first-floor bays and concealed the canopy with a wooden fascia. The

architectural design as reflected on the plans was well received by the Commission

members; however, RSF also requested permission to install clear, drop-down plastic

panels inside the canopy frame for use during inclement weather. As the representative

for RSF explained:

We feel that now that the canopy is hidden from view that

there’s no harm to the district in being able to drop down see-

through plastic on the side panels during inclement weather

only…. And the drop-down plastic … would be inside the

canopy frame and then rolled down and snapped to the floor.

It sits two feet … inside from the Broadway façade and about

a foot and a half from the 5th Avenue façade. So it’s certainly

more inward from the façade than anything else, any other

feature.

Following a discussion, the Commission agreed to issue a permit approving the

architectural design as reflected on the plans but the Commission denied the request to

install see-through plastic panels. As the Commission members explained, they wanted

specifics about the design and the materials that RSF would use to enclose the canopy

before considering such a request.

-2-

At the conclusion of the hearing, the Commission issued a permit approving the

architectural design as reflected on the plans; however, the permit specifically precluded

the following: “The canopy and/or the openings shall not be enclosed without review and

permit from the [Commission].” RSF did not appeal the Commission’s decision and, as

permitted, RSF completed the improvements to the second story canopy by dividing it

into bays that matched the first-floor bays and by concealing the canopy with a wooden

fascia. However, RSF also hung clear plastic panels inside the canopy frame in direct

contravention of the permit.

Upon learning of the installation of the plastic panels, the Commission sent a letter

notifying RSF that the unauthorized plastic panels must be removed. RSF responded by

removing the plastic panels. Thereafter, the Commission inspected the building and

found it in compliance with the permit.

Several months later, and more than a year after the Commission issued the

permit, RSF re-installed the plastic drop-down panels. Upon learning that the plastic

panels had been re-installed, the Metropolitan Government of Nashville and Davidson

County (“Metro’) commenced this action by filing a civil warrant in General Sessions

Court seeking an injunction requiring the removal of the plastic panels. The General

Sessions Court found in Metro’s favor and permanently enjoined RSF from “using

plastic, vinyl, or any other tarp or covering at the subject property in violation of Metro

Code.” RSF appealed that ruling to the Circuit Court of Davidson County.

In the interim, RSF replaced the plastic panels with clear glass panels that it

attached to a track installed a few inches inside the canopy frame. Metro then filed an

amended complaint alleging the glass installation violated the preservation permit. RSF

filed an answer asserting, inter alia, that the Commission lacked jurisdiction to regulate

the installation of the interior glass panels.1

Following discovery, Metro filed a motion for summary judgment contending that

RSF violated the permit by enclosing the canopy with the glass panels. In support of its

motion, Metro relied on several exhibits including, inter alia, a copy of the preservation

permit issued to RSF, a transcript from the July Commission meeting, and a copy of the

Broadway Historic Preservation District Design Guidelines (“the Historic Preservation

Guidelines”). Metro relied on the transcript from the July hearing to show that RSF

acknowledged the Commission’s authority to regulate the interior panels when it

requested permission from the Commission to install them. As for the jurisdictional issue,

the Commission noted that when it rejected the request, as clearly stated in the

preservation permit, RSF had the right to appeal that decision but did not; therefore, the

issue was res judicata.

1

RSF refers to the glass installation as “glass curtains.” We will refer to them as “glass panels.”

-3-

RSF responded by filing a cross motion for summary judgment in which it

asserted three grounds for dismissal of the complaint. RSF argued that the Commission

did not have the authority to regulate the interior of RSF’s building, and the glass panels

were within the interior of the building. RSF contended that its installation of the glass

panels did not violate the permit because the permit, which was for one year, had expired

prior to the installation. RSF also argued that the panels did not form an enclosure as

defined by the construction trade or the Metropolitan Code of Laws; thus RSF did not

violate the permit.

In support of the last argument, RSF submitted an affidavit from Steve DiLeo, the

project manager responsible for the glass installation, and the deposition of Byron Hall,

the Chief Inspector for Metro Codes. Mr. DiLeo testified that the glass panels were

installed on the interior of the structure and did not “enclose” the second floor as that

term is generally used in the commercial construction trade in Tennessee. Mr. Hall,

likewise, testified that the installation was not affixed to the exterior of the structure and

did not “enclose” the second story according to the definition followed by Metro Codes.

However, Mr. Hall also testified that Metro Codes did not conduct inspections for the

Commission: “We don’t do Historic inspections, no. Our inspections come along with

our permits, which are mainly structure and … we’re … looking at structure, period.”

Similarly, Robin Zeigler, the Metro Historic Zoning Administrator, testified in a

deposition submitted by RSF that the Commission used its own design guidelines and did

not use the definitions provided by Metro Codes, despite the fact that the Commission’s

guidelines did not define “enclosed.”

As for RSF’s argument that the Commission lacked the authority to regulate the

interior of the RSF structure, the Commission noted that RSF submitted to its jurisdiction

by applying for the permit in 2010. Moreover, if RSF was aggrieved by the

Commission’s order and the restrictions in the permit, RSF was required to appeal the

Commission’s decision within sixty days of the entry of the order, and it did not. Because

the Commission’s decision became final, that decision could not be collaterally attacked.

In an order entered on May 26, 2016, the trial court granted Metro’s motion for

summary judgment, finding the Commission’s decision to be final and thus immune from

RSF’s claim that the Commission “did not have the authority to regulate the enclosures of

the second story openings and/or canopy.” The trial court also determined that it was

“self-evident that the current installation of glass, as well as the previous installation of

plastic, encloses the openings and/or canopy on the second story,” in violation of the

permit. The trial court required RSF to remove the glass panels, and it permanently

enjoined RSF from re-installing the panels unless and until it obtained the appropriate

permit from the Commission.

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RSF timely filed a motion to alter or amend the May order, arguing that the trial

court should remove the permanent injunction language from its order since Metro had

not mentioned a remedy in its summary judgment motion nor was it discussed at the

motion hearing. RSF also argued that the order should be amended because the trial court

erred: (1) by enforcing the permit despite the fact that it had expired before RSF installed

the plastic panels; and (2) by summarily dismissing the case since it was disputed

whether the installation constituted an enclosure in violation of the permit.

On July 22, 2016, the trial court entered a second order that also granted summary

judgment in favor of Metro but the relief granted to Metro was different from that stated

in the May order.2 Later that day, Metro filed a Motion and Memorandum of Law for

Mandatory and Permanent Injunction.

In a third order entered on August 4, 2016, the court ruled on RSF’s first motion to

alter or amend by decreeing that “the Order entered by the Court on May 26, 2016 is set

aside and the Order [prepared by RSF and entered on July 22, 2016] will be entered by

the Court.”3 Furthermore, and significantly, the August order expressly stated that “[a]ll

other issues raised in [RSF’s] Motion are reserved.”

On August 19, 2016, RSF filed a motion to alter or amend the July order, arguing,

again, that the trial court erred by enforcing the expired permit and by finding that the

panels enclosed the canopy. Metro filed a response in opposition to the motion along with

a notice that it was striking its motion for a permanent injunction. Following a hearing,

the trial court denied RSF’s motion to alter or amend.

On September 29, 2016, the trial court entered its fourth and final order granting

summary judgment to Metro. The court ruled that RSF could not challenge the

Commission’s authority to regulate the installation because it failed to timely petition for

a writ of certiorari within sixty days of the permit’s issuance. The September order also

stated that it constituted the trial court’s final judgment. RSF filed its notice of appeal

within thirty days of the entry of that order.

2

RSF prepared the July 22 order and submitted it shortly after it learned that the court had signed

and entered the May 26 order prepared by Metro. The confusion appears to have resulted from the fact

that the trial court failed to “hold” Metro’s proposed order for three days, as required by Rule 15.03 of the

Davidson County Trial Courts to afford RSF time to notify the court if it disagreed with the contents of

the order prepared by Metro.

3

The opening paragraph of the August 4, 2016 order stated, “This cause came to be heard . . . on

[RSF]’s Motion to Alter or Amend Order following summary judgment.” It appears this order was

necessary due to the inconsistent relief awarded to Metro in the “final orders” that had been entered on

May 26 and July 22, respectively.

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ANALYSIS

RSF presents three issues for our review:

1. Whether the glass panels, which were installed on the interior of the building,

are within the regulatory purview of the Commission.

2. Whether the trial court erred in finding that the preservation permit was

enforceable more than twelve months after it was issued.

3. Whether the trial court erred in finding, as a matter of undisputed fact, that the

glass panels installed on the interior of the building constituted “enclosures.”4

Metro presents one additional issue, whether this appeal should be dismissed as

untimely. Because it presents a jurisdictional issue, we will address this issue first.

I. TIMELINESS OF THE APPEAL

Metro contends this court lacks jurisdiction to hear this appeal because RSF failed

to file a timely notice of appeal. The contention is that RSF filed two Tenn. R. Civ. P.

59.04 motions to alter or amend the court’s orders, and the second motion, which relied

on the same grounds as the first, cannot extend the time for filing a notice of appeal. We

agree that a second motion filed by the same party on substantially the same grounds

cannot extend the time for filing an appeal. Nevertheless, Metro filed its motion for

injunctive relief that was, in fact, a Rule 59.04 motion to alter or amend a final order,

which had been amended in response to RSF’s first Tenn. R. Civ. P. 59.04 motion.

Therefore, Metro’s motion extended the time for filing an appeal a second time.

Furthermore, in the order entered on August 4, 2016, in which the court partially granted

RSF’s first motion to alter or amend, the court stated, “All other issues raised in [RSF’s]

Motion are reserved.” Because the August order did not dispose of all claims or issues, it

did not constitute a final judgment from which an appeal as of right could be taken.

Based upon these facts and for the reasons explained below, we have determined that the

order entered on September 29, 2016 constituted the trial court’s final judgment. Because

RSF filed its notice of appeal within thirty days of the entry of that order, it was timely

filed. As a consequence, we have jurisdiction to hear this case.

The term “judgment,” as used in the Tennessee Rules of Civil Procedure, includes

any order from which an appeal lies. Tenn. R. Civ. P. 54.01. A party is entitled to an

appeal as of right only after the trial court has entered a “final judgment.” Tenn. R. App.

4

We have revised the issues presented by RSF by removing the argumentative component of

each issue.

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P. 3(a). A final judgment is a judgment that resolves all the claims between all the parties,

“leaving nothing else for the trial court to do.” In re Estate of Henderson, 121 S.W.3d

643, 645 (Tenn. 2003) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840

(Tenn. Ct. App. 1997)). An order that adjudicates fewer than all the claims between all

the parties is subject to revision at any time before the entry of a final judgment and is not

appealable as of right.5 Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d at

645.

Tenn. R. App. P. 4(a) requires an appellant to file a notice of appeal within thirty

days following the entry of the final judgment. Pursuant to Tenn. R. Civ. P. 59.01, the

filing of the following post-judgment motions will extend the thirty-day deadline: (1) a

Tenn. R. Civ. P. 50.02 motion for judgment in accordance with a motion for directed

verdict; (2) a Tenn. R. Civ. P. 52.02 motion to amend or make additional findings of fact;

(3) a Tenn. R. Civ. P. 59.02 motion for a new trial; and (4) a Tenn. R. Civ. P. 59.04

motion to alter or amend the judgment. “If one of the post-judgment motions listed in

Tenn. R. App. P. 4(b) and Tenn. R. Civ. P. 59.01 is timely filed, the time for filing the

notice of appeal will run from the date of the order granting or denying the motion.”

Barnes v. Barnes, No. M2012-02085-COA-R3-CV, 2014 WL 1413931, at *3 (Tenn. Ct.

App. Apr. 10, 2014).

Therefore, the timely filing of a Tenn. R. Civ. P. 59.04 motion to alter or amend

tolls the thirty-day time limit for filing a notice of appeal until the trial court grants or

denies the motion. Albert v. Frye, 145 S.W.3d 526, 528 (Tenn. 2004). Nevertheless, as

Metro correctly states, a party may not file successive or serial post-trial motions on

substantially the same grounds in an attempt to further extend the time for filing a notice

of appeal. Tenn. R. Civ. P. 59.01, Adv. Comm’n Cmt.; Barnes, 2014 WL 1413931, at *3

(citing Albert, 145 S.W.3d at 528) (other citations omitted). However, the time may be

extended again if an adverse party subsequently files a Tenn. R. Civ. P. 59.04 motion to

alter or amend a judgment that was amended in response to another party’s motion to

alter or amend. Barnes, 2014 WL 1413931, at *3 (citing Albert, 145 S.W.3d at 528)

(other citations omitted).

5

An exception to this rule is when the trial court expressly declares that an order constitutes a

final judgment for purposes of appeal under Tenn. R. Civ. P. 54.02, which reads:

When more than one claim for relief is present in an action, . . .the court, . . . may direct

the entry of a final judgment as to one or more but fewer than all of the claims . . . only

upon an express determination that there is no just reason for delay and upon an express

direction for the entry of judgment. In the absence of such determination and direction,

any order or other form of decision, however designated, that adjudicates fewer than all

the claims or the rights and liabilities of fewer than all the parties shall not terminate the

action as to any of the claims or parties, and the order or other form of decision is subject

to revision at any time before the entry of the judgment adjudicating all the claims and

the rights and liabilities of all the parties.

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In this case, the first order granting summary judgment to Metro was entered on

May 26, 2016.6 Because the order disposed of all pending claims, it constituted a final

judgment from which RSF had the right to appeal. See In re Estate of Henderson, 121

S.W.3d at 645 (A “final judgment” is a judgment that resolves all claims between all

parties, “leaving nothing else for the trial court to do.”); see also Tenn. R. App. P. 3(a) (A

party is entitled to an appeal as of right after the trial court has entered a “final

judgment.”). As a consequence, RSF could have appealed the May order. Instead of

appealing, RSF timely filed a Rule 59.04 motion to alter or amend, which tolled the

thirty-day time limit for filing a notice of appeal until the trial court ruled on the motion.

On July 22, 2016, the trial court entered a second order granting summary

judgment in favor of Metro; however, the relief granted was different from the May order

and, significantly, the order did not set aside or supersede the May 26 order.7

Immediately after the trial court entered the July 22 order, Metro filed a motion for

mandatory and permanent injunction.8 Although Metro did not identify the motion as a

Rule 59.04 motion to alter or amend, we look to “the substance of the motion rather than

its form” to determine whether it fits the criteria of a post-judgment motion that will

extend the deadline for appeal. Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d

453, 455 (Tenn. 1998). As noted in Farmer, this rule was applied in Bemis Co. Inc. v.

Hines, 585 S.W.2d 574, 575 (Tenn. 1979) and in Hawkins v. Hawkins, 883 S.W.2d 622,

624 (Tenn. App. 1994). Id. In Bemis, 585 S.W. 2d at 575, the plaintiff filed a written

“Motion to Set Aside Decree and Restore the Cause to the Docket.” Although

commenting that “neither the title nor the format of the motion bears a striking

resemblance to the usual motion for new trial,” the appellate court found it to be “clearly

ascertainable from a reading of the motion that, in substance, . . .” it was a motion for a

new trial. Id. In Hawkins, 883 S.W.2d at 624, the plaintiff filed a written post-trial motion

designated as a “Motion to Reconsider.” On appeal we determined “[t]hough she called it

a motion to reconsider, ‘it is clearly ascertainable from a reading of the motion that, in

substance,’ it amounts to a motion to alter.” Id. (quoting Bemis, 585 S.W.2d at 575).

If we only consider the title of Metro’s motion, it would not fit the criteria of a

Rule 59.04 motion; however, having considered the substance of its post-trial motion, it

6

The May 26 order was prepared by Metro as instructed by the court at the conclusion of the

hearing.

7

The order that was entered on July 22 was submitted by RSF shortly after RSF learned that the

court had signed and entered the May 26 order submitted by Metro. The confusion appears to have

resulted from the fact that the trial court failed to “hold” Metro’s proposed order for three days, as

required by Rule 15.03 of the Local Rules of the Davidson County Trial Courts to afford RSF time to

notify the court if it disagreed with the contents of the order prepared by Metro.

8

The trial court had not yet ruled on RSF’s motion to alter or amend when Metro filed its motion.

-8-

is apparent that Metro sought to alter or amend the July order for the purpose of restoring

the injunctive relief that had been removed as a result of RSF’s first Rule 59.04 motion to

alter or amend. Thus, it is evident that Metro’s post-trial motion was, in fact, a motion to

alter or amend that tolled the running of the time in which to file a notice of appeal. See

Tenn. R. Civ. P. 59.01.

After Metro filed the motion discussed immediately above, the trial court entered a

third order that ruled on RSF’s motion to alter or amend and resolved the inconsistent

relief awarded in the prior orders. The order, which was entered on August 4, 2016, is

significant for three reasons. First, it reveals that the trial court had not previously ruled

on RSF’s first motion to alter or amend. This is evident because the preamble in the order

states, “This cause came to be heard . . . on [RSF]’s Motion to Alter or Amend Order

following summary judgment.”9 Second, the August order stated that “the Order entered

by the Court on May 26, 2016 is set aside and the Order [prepared by RSF and entered on

July 22, 2016] will be entered by the Court.”10

The August order is also significant because it expressly states that “[a]ll other

issues raised in [RSF’s] Motion are reserved.” A final judgment is a judgment that

resolves all the claims between all the parties, “leaving nothing else for the trial court to

do.” In re Estate of Henderson, 121 S.W.3d at 645 (quoting McAllister, 968 S.W.2d at

840). Although we do not know which issues were reserved, the court’s statement makes

it clear the August order did not resolve all claims or issues. As a consequence, the

August order was not a final judgment from which an appeal as of right could be taken.

See Tenn. R. App. P. 3(a).

An order that adjudicates fewer than all the claims between all the parties is

subject to revision at any time before the entry of a final judgment and is not appealable

as of right. Id.; In re Estate of Henderson, 121 S.W.3d at 645. Because the August order

did not dispose of all claims or issues, it was not a final judgment from which an appeal

as of right could be taken. Therefore, the August order did not start the clock on the time

to file a notice of appeal. See Tenn. R. App. P. 4(a).

Our determination that a final judgment had not been entered is also supported by

the transcript from the September hearing on the “remaining issues before [the trial]

9

We can only surmise that the July order was approved and entered inadvertently or prematurely

because, as the August order reveals, RSF’s motion to alter or amend had not been heard.

10

The opening paragraph of the August 4, 2016 order stated “This cause came to be heard . . . on

[RSF]’s Motion to Alter or Amend Order following summary judgment.” It appears this order was

necessary due to the inconsistent relief awarded to Metro in the “final orders” that had been entered on

May 26 and July 22, respectively.

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court.” The following exchange occurred between Mr. Meisner, counsel for RSF, Mr.

Bradley, counsel for Metro, and the court:

Mr. Meisner: So, Your Honor, just so we’re still clear and we

don’t need to come back. We’ve been doing these gymnastics

about whether this is a final order or not. We have not yet

resolved what relief Your Honor is going to grant and we

could have done that now if Metro had not stricken their

motion….

Mr. Bradley: … As we said in the notice striking our motion

for permanent injunction, we’ll go through contempt

proceedings if we need to. We feel like we can do that. And

that does not preclude this from being a final order.

Mr. Meisner: So, you’re asking the Court to certify this as a

final order?

Mr. Bradley: Absolutely.

Mr. Meisner: I have no objection, Your Honor.

Mr. Bradley: I don’t think he needs to. I think it’s a final

order.

The Court: This is the final order of the Court.

The trial court expressly stated at the end of the order dated September 29, 2016

that “[t]his matter is now final as there are no remaining issues before this court.”

Therefore, the order entered on September 29, 2016 constituted the trial court’s final

judgment. Since RSF filed its notice of appeal within thirty days of the entry of that

order, the notice of appeal was timely filed. See Tenn. R. App. P. 4(a). As a consequence,

we have jurisdiction to hear this case.

II. JURISDICTION OF THE COMMISSION

RSF contends the Commission has no authority to regulate the installation of glass

or plastic panels within the interior of its building because the Commission’s jurisdiction

is restricted to the exterior design elements of the buildings situated within the Broadway

Historic Preservation District. Metro insists the Commission has the authority to regulate

the panels. It also insists that the exclusive means for RSF to challenge the Commission’s

final order was through a petition for a statutory writ of certiorari and, because RSF failed

to file a petition for certiorari, it is barred from challenging the Commission’s authority to

- 10 -

regulate the installation. In other words, Metro insists this appeal constitutes an

impermissible collateral attack on the Commission’s final order; therefore, the appeal

should be dismissed. We have determined that a collateral attack on jurisdictional

grounds is permissible, and that RSF presents a jurisdictional challenge. Nevertheless,

RSF’s challenge must fail because the Commission had the authority to regulate the

panels at issue.

Tenn. Code Ann. § 13-7-409 states that anyone who may be aggrieved by a final

order of the historic zoning commission must challenge the decision through a statutory

certiorari procedure. Tenn. Code Ann. § 27-9-102 provides that a party shall file his or

her petition of certiorari within sixty days from the entry of the order or judgment. RSF

did not appeal the Commission’s decision through the statutory certiorari procedure.

Instead, RSF is challenging the Commission’s decision by denying its force and effect in

this matter, which is an incidental enforcement proceeding.

A collateral attack on a judgment differs from a direct attack. Turner v. Bell, 279

S.W.2d 71, 75 (Tenn. 1955). A direct attack on a judgment is a challenge to a judgment

through an appellate procedure such as a petition of certiorari or appeal. Id. To the

contrary, a collateral attack is “an attempt to avoid, defeat, or evade a judgment, or to

deny its force and effect, in some incidental proceedings not provided by law for the

express purpose of attacking it.” Andrews v. Fifth Third Bank, 228 S.W.3d 102, 107

(Tenn. Ct. App. 2007) (quoting 50 C.J.S. Judgments § 555 (1997)). A collateral attack is

impermissible under the principle of res judicata. Black v. Black, No. W2003-01648-

COA-R3-CV, 2004 WL 1563233, at *8 (Tenn. Ct. App. July 13, 2004). Res judicata is a

“rule of rest” that promotes finality in litigation and conserves judicial resources. Jackson

v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012) (quoting Moulton v. Ford Motor Co., 533

S.W.2d 295, 296 (Tenn. 1976)). This principle applies not only to the final decision of a

court, but also to the final decision of an administrative board or commission. State ex

rel. Ragsdale v. Sandefur, 389 S.W.2d 266, 271 (Tenn. 1965). The Tennessee Supreme

Court has opined:

If it can be said a voidable decision of an administrative board

can be collaterally attacked in all cases by way of a defense to

a suit for the enforcement of the order or decision or by suit

not in the nature of a direct attack, then we fail to see how an

order or decision of a board would ever become final and not

subject to review by the courts….

Id.

Our courts do not permit collateral attacks on the final decisions of administrative

boards or commissions except in limited circumstances:

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Attempts to question, in a subsequent proceeding, the

conclusiveness of a prior decision of an administrative agency

have often been rejected by the courts on the ground that, like

the judgment of a court, a determination made by an

administrative agency in its judicial or quasi-judicial capacity

is not subject to collateral attack, at least where the

administrative agency has acted within its jurisdiction, the

determination is not void upon its face, and the ground of

attack asserted relates to mere error or irregularity which is

not jurisdictional.

Id. at 272 (quoting 2 Am. Jur. 2d Administrative Law § 493, p. 299). However, when a

judicial or quasi-judicial body lacks the authority to make the decision, the decision is

void and would thus be subject to challenge in a collateral proceeding on that basis. See

Lovlace v. Copley, 418 S.W.3d 1, 19 (Tenn. 2013).

RSF is asserting a collateral attack, which is generally not permitted. However, in

this instance, RSF challenges the Commission’s jurisdiction, which is an exception to the

collateral attack rule. Therefore, RSF’s collateral challenge on jurisdictional grounds is

permitted. Nevertheless, for the reasons explained below, we have determined that the

Commission had jurisdiction over the installation.

The Metropolitan Government of Nashville and Davidson County enacted

separate historic zoning provisions in the Metropolitan Code of Laws “to insure the

ongoing preservation of structures of historic value” to Nashville and Davidson County.

M.C.L. § 17.36.100. Each historic district has a unique set of guidelines concerned

primarily with regulating the exterior design elements of the buildings within the district

to insure architectural compatibility. M.C.L. § 17.36.100(B); M.C.L. § 17.36.110. To

promote compliance, the Metropolitan Government established an historic zoning

commission (previously designated “the Commission”) which is authorized to adopt a set

of design guidelines appropriate for each district and the power to apply those design

guidelines when considering permit applications for new construction, alterations or

additions. M.C.L. § 17.40.400; M.C.L. § 17.40.410(B).

The Commission adopted The Broadway Historic Preservation District Design

Guidelines (previously designated “the Historic Preservation Guidelines”), which apply

to the buildings within the Broadway Historic Preservation District. It is undisputed that

RSF’s building is in the district. The Historic Preservation Guidelines apply not only to

“the exteriors of buildings and to areas of lots visible from public rights-of-way,” but also

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to “interior changes that affect the exterior appearance of upper facades….”11 (emphasis

added).

RSF contends that the Commission only has the authority to regulate exterior

design elements; therefore, the Commission cannot regulate or prohibit its installation of

interior glass panels. RSF submitted the testimony of two experts, Steve DiLeo, the

project manager principally responsible for the installation, and Byron Hall, the Chief

Inspector for Metro Codes. Both testified that the plastic and glass panels are not affixed

to the exterior of the structure. We find this evidence of little consequence because the

Historic Preservation Guidelines apply to areas visible from public rights-of-way and to

interior changes affecting the exterior appearance of upper facades. The photographic

evidence established that the glass panels at issue are clearly visible from public rights-

of-way, and the panels alter the building’s exterior appearance. Thus, the Commission

has the authority to regulate the installation.

III. THE TWELVE-MONTH PERMIT

RSF contends Metro cannot rely on the permit as a basis for its enforcement action

because the glass panels were installed after the twelve-month permit had expired. Metro

insists the validity and enforceability of the permit did not expire twelve months after

issuance. We agree with Metro.

The “Notice” provision of the permit states in pertinent part, “This permit

becomes invalid TWELVE months after issue date. Expired permits must be reissued

prior to work being undertaken.” Reading the two sentences together, it is readily

apparent that the permit does not expire unless the permittee fails to undertake or

commence construction within twelve months from issuance.

RSF’s permit was issued on July 22, 2010, and RSF not only commenced but

completed construction within twelve months of the issuance of the permit. After

requiring the removal of the plastic panels installed in violation of the permit, the

Commission inspected and approved the work on July 26, 2011. Therefore, the permit did

not expire and the Commission had the right to enforce the permit.

IV. DID RSF VIOLATE THE PERMIT?

RSF contends the trial court erred in finding, as a matter of undisputed fact, that

the glass panels it installed on the interior of the second-floor constituted “enclosures”

which violated the permit. Metro contends that no material facts were in dispute and that

11

The Historic Preservation Guidelines specifically state: “Interior changes that affect the

exterior appearance of upper facades including changing original floor levels should be avoided.”

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the trial court correctly granted summary judgment in its favor. We are in agreement with

Metro’s contention.

This court reviews a trial court’s decision on a motion for summary judgment de

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997)). Accordingly, this court must make a fresh determination of whether the

requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955

S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s

favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

Summary judgment should be granted when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, 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. When the party moving for

summary judgment does not bear the burden of proof at trial, it may satisfy its burden of

production “either (1) by affirmatively negating an essential element of the nonmoving

party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the

summary judgment stage is insufficient to establish the nonmoving party’s claim or

defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

When a motion for summary judgment is made and supported as provided in

Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its

pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that

there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to

resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall,

847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could

legitimately resolve that fact in favor of one side or the other.” Id.

At the July meeting, RSF’s attorney requested permission to install drop-down

plastic panels “inside the canopy frame” to use during inclement weather. The

Commission rejected that request and prohibited RSF from enclosing the canopy or

openings without review from the Commission. At that meeting, the Commission made it

clear to RSF exactly what the permit prohibited. RSF then did exactly what the

Commission told it not to do—it installed drop down plastic panels inside the canopy

frame without the Commission’s approval. When the Commission objected to the plastic

panels, RSF immediately removed them. Thereafter, the Commission inspected the

building and found it in compliance with the permit. RSF now seeks to challenge the

Commission’s efforts to enforce the prohibitive provision in the permit when the only

difference is that the “curtains” or panels are made of glass instead of plastic.

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As previously stated, the historic zoning provisions in the Metropolitan Code of

Laws gives the Commission the power to adopt a set of design guidelines appropriate for

each district and the power to apply the design guidelines when considering permit

applications for new construction, alterations or additions. M.C.L. § 17.40.410(B). The

permit expressly states, “The canopy and/or the openings shall not be enclosed without

review and permit from the [Commission].” Though the Historic Preservation Guidelines

do not define “enclosed,” such a definition is unnecessary in this case.

We acknowledge there is evidence in the record concerning the definitions of

“enclosed” in the context of the construction trade and by other sections of the

Metropolitan Code; however, those definitions are not relevant to the matter at issue. The

historic zoning provisions in the Metro Code are concerned with maintaining a specific

design aesthetic in the historic districts, and neither Mr. DiLeo nor Mr. Hall claims any

expertise in that area. More importantly, Mr. Hall testified that Metro Codes enforcement

pertained to “structure,” but did not pertain to a building’s compliance with historic

zoning requirements. Thus, the evidence RSF relied upon was neither relevant nor

material to whether the glass panels violated the permit.

The Commission regulates the exterior appearance of the buildings within the

district as well as interior changes affecting a building’s exterior appearance. The permit

expressly prohibits enclosing the canopy and/or the openings without review and permit

from the Commission. The Commission did not review or permit the installation of glass

panels. The photographic evidence submitted to the trial court unequivocally establishes

that the glass panels installed by RSF appear to enclose “[t]he canopy and/or the

openings.” Therefore, RSF’s installation of the glass panels violates the preservation

permit.

Accordingly, we affirm the trial court’s decision to grant summary judgment in

favor of Metro.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against RSF Investors, LLC.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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