# Brandon Burks v. Savannah Industrial Development Corporation of the City of Savannah, Tennessee

> Court of Appeals of Tennessee · October 24, 2018

URL: https://www.frixlaw.com/law-library/cases/4324524

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** October 24, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Kenny Armstrong
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4324524

## How later opinions describe it (automated extraction)

- observing that “Tennessee follows a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented to the opposing party and court” (citation omitted)

## Opinion text

10/24/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 13, 2018 Session

BRANDON BURKS ET AL. v. SAVANNAH INDUSTRIAL
DEVELOPMENT CORPORATION OF THE CITY OF SAVANNAH
TENNESSEE

Appeal from the Chancery Court for Hardin County
No. CH-417 Carma Dennis McGee, Chancellor
___________________________________

No. W2018-00166-COA-R3-CV
___________________________________

Appellants, owners of property near a proposed industrial park site, appeal the trial
court’s grant of Appellee Savannah Industrial Development Corporation’s Tennessee
Rule of Civil Procedure 12.02(6) motion. Appellants sought a declaratory judgment
precluding the City of Savannah and, specifically, its industrial development corporation,
from purchasing land outside the city’s corporate limits for development of an industrial
park for the benefit of both the city and Hardin County. The trial court applied the
Industrial Development Corporations Act, Tenn. Code Ann. § 7-53-101, et seq. and the
Industrial Park Act, Tenn. Code Ann. § 13-16-201, et seq. and found that there was no
prohibition against the industrial development corporation’s actions. The trial court,
therefore, granted the industrial development corporation’s motion to dismiss and
awarded the corporation its attorney’s fees under Tennessee Code Annotated section 20-
12-119(c)(1). Because the industrial development corporation is a “governmental entity,”
we hold that the trial court was precluded from awarding attorney’s fees under Tennessee
Code Annotated section 20-12-119(c). Accordingly, we reverse the trial court’s award of
attorney’s fees. The trial court’s order is otherwise affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed in Part, Affirmed in Part, and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Jeremy R. Durham, Franklin, Tennessee, for the appellants, Brandon Burks, and Stephen
Hood.

Dennis W. Plunk, Savannah, Tennessee, for the appellee, Savannah Industrial
Development Corporation of the City of Savannah, TN.

OPINION

I. Background

On May 10, 2017, Savannah Industrial Development Corporation of the City of
Savannah, TN (“SIDC,” or “Appellee”), a chartered industrial development corporation
of Savannah, Tennessee (the “City),1 resolved to request up to $500,000 from the City to
“purchase the 58 acres currently known as the Turnbow Property located . . . [in] Hardin
County . . . to become part of the Savannah Industrial Park . . . .” The Turnbow Property
is located approximately six miles outside the City’s corporate limits and is outside the
City’s urban growth boundary, see further discussion infra.

Concerning the procurement of the Turnbow Property, by resolution of July 6,
2017, the City Commissioners resolved to pay “up to one-third of the actual land
acquisition costs, which in total will not exceed $500,000 from Savannah and Hardin
County combined . . . .” The industrial park, which was slated to be built on the Turnbow
Property, was a joint-project between Hardin County and the City. Ultimately, the City
voted to approve $166,700 for the project; Hardin County voted to approve $333,300 for
the project.

Brandon Burks and Stephen Hood (together, “Appellants”) are residents and
landowners of Crump, Tennessee. Their respective properties are located on the same
road as the Turnbow Property. On August 1, 2017, Appellants filed a complaint for
declaratory judgment and injunctive relief in the Chancery Court for Hardin County
(“trial court”). Appellants challenge “the legal capacity of [SIDC] . . . to exercise powers
as a government corporation of Savannah, Tennessee within the corporate limits of
Crump, TN.” Appellant’s sought, inter alia, an injunction precluding SIDC from
purchasing the Turnbow Property. SIDC filed an answer on August 31, 2017.
Concurrent with its answer, SIDC filed a Tennessee Rule of Civil Procedure 12.02(6)
motion to dismiss Appellant’s complaint. Appellants opposed the motion to dismiss,
which was heard on October 3, 2017. By order of January 24, 2018, the trial court
granted SIDC’s motion to dismiss the complaint. On May 3, 2018, the trial court filed an
amended order, granting the motion to dismiss and awarding SIDC its attorney’s fees in
the amount of $7,505.00. Appellants appeal.

II. Issues

There are two dispositive issues, which we state as follows:

1
SIDC filed its certificate of incorporation with the Tennessee Secretary of State on June 2, 1978.
It has remained in good standing since that time.
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1. Whether the trial court erred in granting SIDC’s Tennessee Rule of Civil Procedure
12.02(6) motion to dismiss Appellants’ complaint.

2. Whether SIDC is a governmental entity for purposes of awarding attorney’s fees
under Tennessee Code Annotated section 20-12-119(c)(1).

III. Standard of Review

The applicable standard of review was succinctly explained by the Tennessee
Supreme Court in Lind v. Beaman Dodge, Inc., as follows:

The scope of review after the grant or denial of a motion to dismiss
involves a question of law. See Trau-Med of Am., Inc. v. Allstate Ins. Co.,
71 S.W.3d 691, 696-97 (Tenn. 2002). A motion to dismiss pursuant to
Rule 12.02(6) of the Tennessee Rules of Civil Procedure seeks only to
determine whether the pleadings state a claim upon which relief can be
granted. Such a motion challenges the legal sufficiency of the complaint,
not the strength of the plaintiff’s proof. See Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). The
motion admits the truth of all relevant and material averments contained in
the complaint, but asserts that such facts do not constitute a cause of action.
Id.; see also Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.
1997). In considering a motion to dismiss, the Court is required to take the
relevant and material factual allegations in the complaint as true and to
construe liberally all allegations in favor of the plaintiff. Stein, 945 S.W.2d
at 716; see also Webb, 346 S.W.3d at 426 (observing that “Tennessee
follows a liberal notice pleading standard, which recognizes that the
primary purpose of pleadings is to provide notice of the issues presented to
the opposing party and court” (citation omitted)). Additionally, this Court’s
review of a trial court’s determinations on issues of law is de novo, without
any presumption of correctness. Frye v. Blue Ridge Neuroscience Ctr.,
P.C., 70 S.W.3d 710, 712 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913,
916 (Tenn.2000); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.
1997).
This appeal also involves the interpretation of legislation . . . The
construction of statutes . . . [is a question] of law that [is] reviewed de novo
without any presumption of correctness. In re Estate of Tanner, 295
S.W.3d 610, 613 (Tenn. 2009); see also Carter v. Quality Outdoor Prods.,
Inc., 303 S.W.3d 265, 267 (Tenn. 2010) (citing Perrin v. Gaylord Entm’t
Co., 120 S.W.3d 823, 826 (Tenn. 2003)). When dealing with statutory
interpretation, well-defined precepts apply. Our primary objective is to
carry out legislative intent without broadening or restricting the statute
beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90
-3-
S.W.3d 676, 678 (Tenn. 2002). In construing legislative enactments, we
presume that every word in a statute has meaning and purpose and should
be given full effect if the obvious intention of the General Assembly is not
violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005).
When a statute is clear, we apply the plain meaning without complicating
the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.
2004). Our obligation is simply to enforce the written language. Abels ex
rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn.2006). It is
only when a statute is ambiguous that we may reference the broader
statutory scheme, the history of the legislation, or other sources. Parks v.
Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn.1998).

Lind v. Beaman Dodge, Inc, d/b/a Beaman Dodge Chrysler Jeep et al., 356 S.W.3d 889,
894-95 (Tenn. 2011). Furthermore, a basic rule of statutory construction provides that “a
general statute concerning a subject must defer to a more specific statute concerning the
same subject.” Five Star Exp., Inc. v. Davis, 866 S.W.2d 944, 946 (Tenn. 1993). This
Court stated the basis for this rule in Koella v. State ex rel. Moffett:

Where there is a general provision applicable to a multitude of subjects, and
also a provision which is particular and applicable to one of these subjects,
and inconsistent with the general provision, it does not necessarily follow
that they are so inconsistent that they both cannot stand. The special
provision will be deemed an exception, and the general provision will be
construed to operate on all the subjects introduced therein except the
particular one which is the subject of the special provision.

Koella v. State ex rel. Moffett, 405 S.W.2d 184, 189 (Tenn. 1966) (quoting State v.
Safley, 172 Tenn. 385, 112 S.W.2d 831 (Tenn. 1938)).

IV. Analysis

A. Grant of Tennessee Rule of Civil Procedure 12.02(6) Motion

As noted above, the crux of Appellants’ argument is that SIDC is without legal
authority to exercise its statutorily-granted powers outside the corporate boundaries of
Savannah, Tennessee and, specifically, in areas that are also within the corporate
boundaries of another city (the Turnbow Property is located within the corporate limits of
Crump, Tennessee). In its order granting SIDC’s motion to dismiss, the trial court held
that “there are no such restrictions either stated or implied in the controlling Statutes of
Tennessee.” We now turn to review the applicable legislation.

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We begin with the general statutes concerning the powers of a municipality, such
as the City, and their municipal corporations, such as SIDC. It is undisputed that
Savannah operates under a city manager-commission charter. The general powers of
such municipalities are enumerated at Tennessee Code Annotated section 6-19-101. As
is relevant to the instant appeal, the City has power to “[a]cquire or receive and hold,
maintain, improve, lease, mortgage, pledge, or otherwise dispose of property, real or
personal, and any estate or interest therein, within or without the city or state.” Tenn.
Code Ann. § 6-19-101(8) (emphasis added). Under the plain language of this statute, the
City may, as a general rule, purchase real property outside its city limits. Here, however,
the question is not whether the City may acquire the Turnbow Property, but whether its
municipal corporation, SIDC, may acquire the disputed property. Generally, Tennessee
Code Annotated section 6-54-103 provides that “[a]ll municipal corporations [such as
SIDC] may, for corporate purposes, hold real estate beyond their limits.” So, as a
general rule, SIDC may hold real estate beyond the City’s corporate limits so long as the
property is held for “corporate purposes.” It is undisputed that the corporate purpose for
the acquisition of the Turnbow Property is the establishment of an industrial park for the
benefit of both the City and Hardin County; such joint enterprises are specifically
authorized under Tennessee Code Annotated section 5-1-113.

Because the project at issue is the creation of an industrial park, we apply the
specific statutory scheme established by the Industrial Park Act, Tennessee Code
Annotated section 13-16-201, et seq. (“IPA”). Tennessee Code Annotated section 13-16-
203(1) of the IPA grants a municipality “the power to . . .[a]quire land . . . by . . .
purchase . . . and develop the land into industrial parks within or without the
municipality.” (Emphasis added). Tennessee Code Annotated section 13-16-204 states
that the municipality “may exercise direct control in the development, operation and
maintenance of any industrial park,” Tenn. Code Ann. § 13-16-204(a), or may “delegate
to an industrial development corporation created under title 7, chapter 53 . . . .” Tenn.
Code Ann. § 13-16-204(b). Here, the City chose the second option and delegated the
development of the Turnbow Property industrial park to its industrial development
corporation, SIDC. As an industrial development corporation, SIDC operates under the
Industrial Development Corporations Act, Tennessee Code Annotated section 7-53-101,
et seq. (the “IDCA”). Tennessee Code Annotated section 7-53-302 of the IDCA grants
the industrial development corporation the power to “[a]quire, whether by purchase,
exchange, gift, lease, or otherwise, and improve, maintain, equip and furnish one (1) or
more projects . . . .” “Projects” are defined, at Tennessee Code Annotated section 7-53-
101(13)(G) to include “[a]ny economic development project as defined in § 7-40-103.” It
is undisputed that the Turnbow Property industrial park constitutes an economic
development project. Alternatively, Tennessee Code Annotated section 7-53-310
authorizes the municipality to “acquire a project site by . . . purchase . . . and . . . transfer
[the] project site to [the industrial development] corporation by sale . . . or gift.”
Tennessee Code Annotated section 7-53-310 goes on to specify that “[s]uch project site
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may be within or without the municipality . . . .” (Emphasis added).

Relying on the foregoing statutory provisions, in its order granting Appellee’s
motion to dismiss, the trial court held, in relevant part:

Based upon the foregoing statutes, the Court finds the [Appellants’] claim
that [Appellee] is without legal authority to exercise any of its statutorily-
granted powers enumerated in Tennessee Code Annotated Title 7, Chapter
53 as a chartered industrial development corporation of Savannah,
Tennessee, within the corporate boundaries of any Tennessee municipality
excluding the City of Savannah, Tennessee is without merit.

***

[Appellants] have not shown that any of the actions which have been
undertaken by [Appellee] are prohibited by any laws of the State of
Tennessee. The statutes above-cited specifically authorize [Appellee] to
take action in areas outside of the municipality of Savannah, Tennessee.

The plain language of the relevant statutes supports the trial court’s conclusion. As
discussed above, both the City and its industrial development corporation may purchase
or hold property, both within and without the municipality, for economic development
projects such as industrial parks. Nonetheless, in support of their appeal of the trial
court’s order, Appellants rely on Tennessee Code Annotated section 6-58-107(a), which
addresses a municipality’s “comprehensive growth plan.”

Tennessee Code Annotated section 6-58-107(a), on which Appellants’ rely,
provides that

[a] growth plan for each county shall be submitted to and approved by the
local government planning advisory committee in accordance with 6-58-
104. After a growth plan is so approved, all land use decisions made by the
legislative body and the municipality’s or county’s planning commission
shall be consistent with the growth plan.

Appellants contend that this statute “prevents Tennessee Cities from making ‘land use
decisions’ outside their ‘urban growth boundary.’” An “Urban growth boundary” is
defined, at Tennessee Code Annotated section 6-58-101(9), as “a line encompassing
territory established in conformance with § 6-58-106(a) and approved in accordance with
the requirements of § 6-58-104.” Tennessee Code Annotated section 6-58-106(a)
enumerates the information the urban growth boundary must identify, including such
things as “the likely site of high density commercial, industrial, and/or residential growth
over the next twenty (20) years.” Tenn. Code Ann. § 6-58-106(a)(1)(C). Because the
-6-
proposed Turnbow Property industrial park is located outside the City’s “urban growth
boundary,” i.e., outside the corporate limits of Savannah, Appellants argue that the City
and its industrial development corporation are precluded from engaging in the project.
We disagree.

In the first instance, we find no such prohibition in the plain language of section 6-
58-107. In fact, the statute does not specifically address the development of industrial
park projects. Rather, as stated in Tennessee Code Annotated section 6-58-102, the
purpose of the comprehensive growth plan legislation is

. . .to establish a comprehensive growth policy for this state that:

(1) Eliminates annexation or incorporation out of fear;
(2) Establishes incentives to annex or incorporate where appropriate;
(3) More closely matches the timing of development and provision of
public services;
(4) Stabilizes each county’s education funding base and establishes an
incentive for each county legislative body to be more interested in
education matters; and
(5) Minimizes urban sprawl.

In this regard, the comprehensive growth plan statutes, including section 6-58-107, are
not specifically related to SIDC’s role in procuring the Turnbow Property for
development of an industrial park. The specific statutes governing this venture include
the IPA and the IDCA. “A general statute concerning a subject must defer to a more
specific statute concerning the same subject.” Five Star Exp., Inc. v. Davis, 866 S.W.2d
944, 946 (Tenn. 1993). Having analyzed the applicable provisions of both the IPA and
the IDCA, supra, we agree with the trial court’s conclusion that there is nothing in either
statutory scheme that precludes SIDC from procuring the Turnbow Property for purposes
of establishing an industrial park as a joint venture between the City and Hardin County.
We are not persuaded by the Appellants’ argument based on their interpretation of the
comprehensive growth plan statutes as these provisions are not specifically related to the
project at issue here.

B. Attorney’s Fees

As noted above, in its final order granting SIDC’s Rule 12.02(6) motion to
dismiss, the trial court awarded SIDC its attorney’s fees and costs in the amount of
$7,505.00. Tennessee Code Annotated section 20-12-119(c)(1) provides, in pertinent
part, that

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[w]here a trial court grants a motion to dismiss pursuant to Rule 12 of the
Tennessee Rules of Civil Procedure for failure to state a claim upon which
relief may be granted, the court shall award the party . . . against whom the
dismissed claims were pending at the time the successful motion to dismiss
was granted the costs and reasonable and necessary attorney’s fees incurred
in the proceedings as a consequence of the dismissed claims by that party
or parties. . . .

However, at Tennessee Code Annotated section 20-12-119(c)(5)(A), the statute provides
that section 20-12-119(c)(1) “shall not apply to . . [a]ctions by or against the state, [or]
other governmental entities . . . .” On appeal, Appellants argue that SIDC is a
“governmental entit[y];” as such, Appellants contend that the trial court erred in awarding
attorney’s fees in this case.

Tennessee Code Annotated section 20-12-119(c) does not define the term
“governmental entities.” However, the term is defined elsewhere in the statutes. For
example, in the Governmental Tort Liability Act (“GTLA”), at Tennessee Code
Annotated section 29-20-102(3)(A), “governmental entity” is defined, in relevant part, to
include “a nonprofit public benefit corporation . . . including any entity with tax exempt
status . . . that is appointed by statute . . . .” Other statutes, which do not include a
separate definition of governmental entity, rely on the GTLA definition. For example,
the Electric Utility Comprehensive Equal Powers and Authority Act, at Tennessee Code
Annotated section 65-36-102, defines “municipal utility” and “municipal electric utility”
to mean “any governmental entity as defined in 29-20-102[, i.e., the GTLA].” A well-
settled tenet of statutory construction is that statutes “in pari materia”—those relating to
the same subject or having a common purpose—are to be construed together, and the
construction of one such statute, if doubtful, may be aided by considering the words and
legislative intent indicated by the language of another statute. Belle-Aire Village, Inc. v.
Ghorley, 574 S.W.2d 723, 725 (Tenn.1978); Spence v. Miles Laboratories, Inc., 810 F.
Supp. 952 (E.D. Tenn.1992). Accordingly, because the statute at issue here, i.e.,
Tennessee Code Annotated section 20-12-119(c)(5)(A), does not define the relevant term
“governmental entity,” we may look to other statutory definitions of that term in order to
determine whether SIDC falls within the governmental entity exception to the award of
attorney’s fees and costs on grant of Appellee’s motion to dismiss.

In addition to the definition set out in the GTLA, Tennessee Code Annotated
section 4-39-101(3), which statute concerns the payment of taxes by state vendors and
subcontractors, defines a “state governmental entity” as “a state agency, department,
board, or commission, or a public corporation or quasi-public instrumentality that
performs essential public functions entrusted to it by the state.” (Emphases added).
Likewise, the Mutual Aid and Emergency and Disaster Assistance and Agreement Act of
-8-
2004, at Tennessee Code Annotated section 58-8-102(8), defines a governmental entity,
in relevant part, to mean “any political subdivision of the state, including, but not limited
to, any incorporated city or town, metropolitan government, county . . . or any
instrumentality of government created by one (1) or more of these named governmental
entities . . . .” (Emphasis added). The Industrial Development Corporations Act, at
Tennessee Code Annotated section 7-53-305 (a)(1), addresses a development
corporation’s exemption from taxation and states that “[t]he corporation is hereby
declared to be performing a public function in behalf of the municipality with respect to
which the corporation is organized and to be a public instrumentality of such
municipality.” (Emphasis added). Because the legislature specifically delineates a
development corporation, such as SIDC, as an “instrumentality of [the] municipality,” in
determining whether SIDC is a governmental entity, we find guidance in the foregoing
statutes. Belle-Aire Village, Inc. v. Ghorley, 574 S.W.2d at 725. As set out in context
above, these statutes clearly state that instrumentalities of government, such as SIDC, are
governmental entities. Reading the GTLA and other statutory definitions of
governmental entity in pari materia with the exclusionary language contained in
Tennessee Code Annotated section 20-12-119(c)(5)(A), i.e., “This subsection [mandating
an award of attorney’s fees on grants of motions to dismiss,] shall not apply to: (A)
Actions by or against . . . governmental entities,” we conclude that SIDC is, in fact, a
governmental entity. Therefore, an award of attorney’s fees in favor of SIDC is
statutorily precluded. Accordingly, we reverse the trial court’s award of attorney’s fees
in this case.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order granting SIDC’s
motion to dismiss Appellants’ complaint. We reverse the trial court’s award of attorney’s
fees in favor of SIDC. The case is remanded for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed to the
Appellants, Brandon Burke, Stephen Hood, and their surety, for all of which execution
may issue if necessary.

_________________________________
KENNY ARMSTRONG, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4324524. Public record. Not legal advice.