Session Date: September 20, 2017
from the Chancery Court for Shelby County No. CH-13-0785
JoeDae L. Jenkins, Chancellor
appeals from the trial court's grant of summary judgment
in favor of appellee concerning appellees' authority to
rename three city parks by way of resolution. After a
thorough review of the record, we affirm the decision of the
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Douglas E. Jones, Nashville, Tennessee, for the appellants,
Sons of Confederate Veterans, Nathan Bedford Forrest Camp
S. Parrish and Allan J. Wade, Memphis, Tennessee, for the
appellees, City of Memphis, and Memphis City Council.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Andy D. Bennett and Brandon O. Gibson, JJ.,
STEVEN STAFFORD, JUDGE
the second iteration of this case on appeal. See Hayes v.
City of Memphis, No. W2014-01962-COA-R3-CV, 2015 WL
5000729, at *1 (Tenn. Ct. App. Aug. 21, 2015). On February 5,
2013, Appellee the Memphis City Council ("the City
Council") passed a resolution ("the
resolution" or "the renaming resolution") to
rename three city parks: Confederate Park, Jefferson Davis
Park, and Nathan Bedford Forrest Park ("Forrest
Park"). Forrest Park was named by way of ordinance in
1899. Jefferson Davis Park was named by resolution in 1905.
Confederate Park does not appear to have been named by way of
official ordinance or resolution but was commonly referred to
as such allegedly as far back as 1901. Pending in the
Tennessee General Assembly at the time of the passage of the
2013 renaming resolution was a law that would remove Appellee
the City of Memphis's ("the City, " and
together with the City Council, "Appellees")
ability to rename the parks. The renaming resolution passed
on first reading, rather than the three readings undisputedly
required for the City Council to pass an
ordinance. See Memphis City Charter, art.
40, § 354 (governing the enactment of ordinances by the
29, 2013, Appellant Sons of Confederate Veterans Nathan
Bedford Forrest Camp #215 ("SCV") and other
plaintiffs filed a complaint in the nature of a declaratory
judgment action challenging the renaming resolution. On
October 21, 2013, SCV and other plaintiffs filed their Second
Amended Complaint, which is the operative complaint for
purposes of this appeal. The Second Amended Complaint alleged
that in 2009, SCV raised funds to place a marker at Forrest
Park. The marker was approved by City officials and placed at
Forrest Park in 2012. According to the Second Amended
Complaint, however, after the passage of the renaming
resolution the marker was removed.
responded with a motion to dismiss based, in part, upon lack
of standing. In response to Appellees' standing argument,
SCV filed the affidavit of G. Lee Millar, a member and former
commander of SCV. In his affidavit, Mr. Millar stated that
SCV placed a granite marker at Forrest Park in 2012 after
raising the funds for the project. The marker stated
"Forrest Park." According to the affidavit, the
marker project was a collaboration between SCV, the City, and
the Shelby County Historical Commission. At the time, Mr.
Millar explained that there was no marker remaining at
Forrest Park that identified the park by name. In his
affidavit, Mr. Millar detailed SCV's efforts to raise
funds for the marker and obtain approval to place the marker
in Forrest Park. According to Mr. Millar, neither he nor
anyone associated with SCV was notified prior to the removal
of the marker from the park
trial court granted the motion to dismiss after analyzing
standing as to each plaintiff. This Court reversed as to SCV,
holding that it had standing to challenge the renaming of the
parks. See Hayes v. City of Memphis, No.
W2014-01962-COA-R3-CV, 2015 WL 5000729, at *1 (Tenn. Ct. App.
Aug. 21, 2015). We affirmed, however, the trial court's
ruling dismissing the claims of the other plaintiffs for lack
of standing. Id.
3, 2016, SCV filed a motion for summary judgment, seeking a
declaration that the renaming resolution was ultra vires. The
motion was accompanied by a statement of undisputed material
facts and memorandum of law. Therein, SCV argued that the
renaming of Forrest Park was invalid because the park was
named by ordinance and therefore must be renamed by
ordinance. With regard to the other two parks, SCV argued
that the City Council's action was likewise invalid
because the City Council has delegated all authority over the
administration of parks to the City of Memphis Division of
Park Services ("Division of Park Services"), under
the control of the Memphis Mayor, which authority could only
be regained through the adoption of an ordinance. SCV's
statement of undisputed facts included facts concerning the
adoption of the Forrest Park name by ordinance in 1899, the
adoption of ordinances by the City Council concerning the
administration of parks, and the adoption of the renaming
responded by filing their own motion for summary judgment and
memorandum on August 30, 2016. Therein, Appellees argued that
the Memphis City Charter authorized the City Council to act
by resolution or ordinance with regard to the administration
of parks and that that authority was not delegated to the
Division of Park Services. Further, Appellees contended that
any ordinance purporting to give the Memphis Mayor authority
over the Division of Park Services did not alter the Memphis
City Charter's express provision allowing the City
Council to act with regard to the administration of parks.
Concurrent with the filing of their motion, Appellees filed
the affidavit of then-Memphis Mayor AC Wharton, Jr., who
stated that he fully supported the renaming of the subject
parks. As such, Mayor Wharton stated that he "intended
to and did, in fact, consent to and ratify" the renaming
resolution. At some point, Appellees also filed a statement
of undisputed material facts containing facts concerning the
Memphis City Charter, the enactment of certain provisions of
the Memphis City Charter, the passage of the renaming
resolution, and Mayor Wharton's support for the
November 28, 2016, SCV filed a response to Appellees'
motion for summary judgment. Largely, SCV's response
includes the same argument as had been contained in SCV's
motion for summary judgment. In addition to those arguments,
SCV also asserted that the City Council's action was
invalid because it violated Tennessee Code Annotated section
6-54-512, requiring, inter alia, that all permanent actions
taken by municipalities be performed by ordinance.
December 2, 2016, Appellees filed their response to SCV's
motion for summary judgment. In addition to arguments raised
in their motion for summary judgment, Appellees again
asserted that SCV lacked standing to challenge the renaming
resolution. Appellees later filed an objection to any
consideration of SCV's argument concerning Tennessee Code
Annotated section 6-54-512.
hearing was held on the parties' cross motions for
summary judgment on December 13, 2016. At the hearing,
Appellees again objected to any consideration of section
6-54-512. However, counsel for Appellees later stated the
Now, if they intend not to rely on the statute, we can move
on, and that won't be an issue. If they intend to rely on
it, then we have one or two courses of action. We can
stipulate as to certain facts that we believe are undisputed
that would address the issue, or they can be given the
opportunity to amend their complaint to address the issue.
And I'll let [counsel for SCV] choose whatever he wants.
. . .
* * *
I have no problem with him relying on it today provided that
we stipulate to certain facts that the Court can look at to
determine whether it is permanent in nature.
parties thereafter entered into a joint stipulation of
additional undisputed material facts. These facts generally
concerned Appellees' efforts over the years to rename
various parks throughout the City, much of which occurred by
resolution. At the conclusion of the hearing, the trial court
requested that each party submit proposed findings of fact
and conclusions of law.
February 24, 2016, the trial court entered an order granting
Appellees' motion for summary judgment and denying the
motion of SCV. Therein, the trial court ruled that the
Memphis City Charter provides the City Council with complete
legislative authority to act by resolution regarding the
operation or management of a city park. Because the Memphis
City Charter is an "act of greater dignity" than
the ordinances that established the subject parks, the trial
court further ruled that the Memphis City Charter controlled
the method by which the parks could be renamed, thereby
exempting the decision from the requirement that the
ordinance renaming Forrest Park only be accomplished by
ordinance. Finally, the trial court concluded that the power
to rename the parks resided with either the Mayor or the City
Council, both of whom consented to the change in this case.
In a footnote, the trial court also addressed Appellees'
standing argument, concluding that the previously filed
affidavit by Mr. Millar was sufficient to show that SCV and
the City actively collaborated in the placement of the
granite marker at Forrest Park. Further, the trial court
noted that Appellees advanced no facts that called into
question the facts established by Mr. Millar's affidavit.
As such, the trial court concluded that SCV established
standing for purposes of summary judgment.
SCV raises the following issues for this Court's review:
1. Whether changing the name of a park without setting a time
limit after which said name change expires constitutes a
"permanent" act as that term is used in Tenn. Code
Ann. § 6-54-512.
2. Whether a municipal legislature may repeal or alter an
ordinance using less than the full procedures prescribed ...