February 26, 2019 Session
from the Chancery Court for Davidson County No. 18-29-III
Ellen H. Lyle, Chancellor
an action for injunctive relief filed by a
historical-preservation society against the City of Memphis
and a nonprofit corporation. Prior to filing its complaint,
the society filed a petition for declaratory relief with the
Tennessee Historical Commission that sought a declaration on
the applicability of the Tennessee Heritage Protection Act of
2016 ("THPA") to two parks and related monuments
conveyed by the City to the nonprofit. In the present action,
the historical-preservation society requested a temporary
injunction under the THPA to preserve the parks and monuments
pending the Commission's final order. The trial court
found the society could not prevail on the merits of its
claim because the parks and monuments were no longer public
property and, thus, were no longer subject to the THPA.
Having determined that the historical-preservation society
failed to assert a viable cause of action under the THPA, we
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Douglas Edward Jones and John Isaac Harris, III, Nashville,
Tennessee, for the appellant, Sons of Confederate Veterans,
Nathan Bedford Forrest Camp 215.
Jerome Wade, Jennifer Anne Sink, Brandy S. Parrish, and Bruce
Anthony McMullen, Memphis, Tennessee, and Robert E. Cooper,
Jr., Nashville, Tennessee, for the appellee, City of Memphis.
Christopher L. Vescovo and Alexander Hejoon Park, Memphis,
Tennessee, and Jason Michael Pannu, Nashville, Tennessee, for
the appellee, Memphis Greenspace, Inc.
Edward Phillip, III, Charles G. Blackard, III, Johnathan J.
Pledger, III, and Wesley J. Ladner, III, for amicus curiae,
James Kevin Bradley, Brooks Bradley, Thomas Jesse Bradley,
Sidney Law, Walter W. Law, Jr., and Lee Millar.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ.,
G. CLEMENT JR., P.J., M.S.
and Procedural History
the second lawsuit filed by the Sons of Confederate Veterans
Nathan Bedford Forrest Camp #215 ("SCV") against
the City of Memphis ("the City"). In the first
action, SCV challenged the procedure by which the City
renamed three parks that were named or dedicated in honor of
those who fought for the Confederate States of America during
the American Civil War. Hayes v. City of Memphis,
No. W2014-01962-COA-R3-CV, 2015 WL 5000729, at *2 (Tenn. Ct.
App. Aug. 21, 2015). The City changed the name of Nathan
Bedford Forrest Park to "Health Sciences Park";
Confederate Park to "Memphis Park"; and Jefferson
Davis Park to "Mississippi River
Park." Id. The trial court initially
dismissed the action after finding that SCV lacked standing.
Id. at *5. We reversed the dismissal on appeal,
finding that SCV's collaboration with the City to install
a name marker in Forrest Park gave it standing to challenge
the resolution as a whole. Id. at *11-12. After
remand, the trial court found the City acted within its
authority when it passed the resolution and granted summary
judgment in favor of the City. Sons of Confederate
Veterans Nathan Bedford Forrest Camp #215 v. City of
Memphis, No. W2017-00665-COA-R3-CV, 2017 WL 4842336, at
*3 (Tenn. Ct. App. Oct. 24, 2017). We affirmed the judgment
on appeal. Id. at *13.
after the City renamed the parks, the Tennessee Historical
Protection Act of 2013 ("the THPA") was enacted.
See Tennessee Heritage Protection Act of 2013, Tenn.
Pub. Acts, ch. 75 (codified at Tenn. Code Ann. § 4-1-412
(Supp. 2014)). The THPA provided that "[n]o statue,
monument, memorial, nameplate, or plaque which has been
erected for, or named or dedicated in honor of [the American
Civil War] and is located on public property, may be
relocated, removed, altered, renamed, rededicated, or
otherwise disturbed," Tenn. Code Ann. §
4-1-412(a)(1) (Supp. 2014), without obtaining a waiver from
the Tennessee Historical Commission,  id. § 412(d).
August 18, 2016, the Memphis City Council ("the City
Council") voted to "condemn" the statue of
Nathan Bedford Forrest ("the Forrest Statue") in
Health Sciences Park, f/k/a Forrest Park, and authorized the
sale and removal of the statue. See Memphis, Tenn.,
Ordinance 5592, §§ 1-2 (Aug. 18, 2015).
March 7, 2016, the City filed a petition with the Commission
requesting a waiver of the THPA to relocate the Forrest
Statue to one of two battlefields where Forrest fought in the
Civil War. At its October 21, 2016 meeting, the Commission
denied the City's petition because "Forrest
Park" was on the National Register of Historic Places,
which listed the Forrest Statue as a "contributing
feature." On November 4, 2016, the City filed a second
petition with the Commission, asserting the Commission's
criteria for granting or denying a waiver failed to comply
with the Uniform Administrative Procedures Act
("UAPA"). The Commission effectively denied the
petition when it failed to convene a contested case on the
September 13, 2017, the City filed a third petition with the
Commission. This time, the City requested a declaration that
the THPA did not apply to the Forrest Statue because the
statue was not "dedicated in honor of" the Civil
War. SCV intervened in the matter, asserting a "unique
interest" in the Forrest Statue based on this
court's decision in Hayes. At its October 13,
2017 meeting, the Commission treated the City's petition
as both a request for a declaration on the applicability of
the THPA to the Forrest Statue and as a second waiver
request. The Commission denied the waiver request and voted
to convene a contested case on the issue of whether the THPA
applied to the Forrest Statue.
November 2, 2017, SCV filed a petition to intervene in the
contested case, which the Administrative Law Judge
("ALJ") granted on November 28, 2017. City of
Memphis, ADP No. 04.47-148176J, THC No. 17-0002, slip
op. at 5 (Tenn. Hist. Comm. Nov. 28, 2018). In addition to
pursuing the contested case, the City filed an action for
judicial review of the Commission's decision to deny the
City's second waiver request. See City of Memphis v.
Tenn. Hist. Comm., No. 17-1318-III (Davidson Cty. Ch.
Ct. Dec. 11, 2017).
it was seeking approval for relocating the Forrest Statue,
the City began considering alternative options for removing
the Forrest Statue and other Confederate monuments from the
parks. In particular, the City considered offers from private
entities to acquire the parks and monuments. According to the
affidavit of Doug McGowen, the City's Chief Operating
Officer, the City received at least six proposals but
"rejected most of them because [the bidders] did not
have the funds and could not . . . raise sufficient funds to
relocate the monuments and maintain the parks on a
going[-]forward basis." Eventually, the City entertained
a viable proposal from Memphis Greenspace, Inc.
("Greenspace"), a nonprofit corporation led by
Shelby County Commissioner Van Turner, Jr. Shortly
thereafter, an "Implementation Plan" was presented
to the City Council that proposed transferring the Parks to
Greenspace "at reduced or no cost." See
Memphis, Tenn., Ordinance 5665 (Dec. 20, 2017).
December 15, 2017, the City and Greenspace executed several
agreements to sell the parks with any related monuments to
Greenspace for $1, 000 each. The agreements included
restrictive covenants that could be lifted only with the
City's prior written approval and included an option
agreement, giving the City the first right of refusal for any
future transfer. On December 20, 2017, the City Council and
Mayor adopted the Implementation Plan and authorized the
Parks' transfer. See Memphis, Tenn., Ordinance
5665 (Dec. 20, 2017). Later that night, Greenspace removed
the Forrest Statue from Health Sciences Park, a statue of
Jefferson Davis from Memphis Park, and a bust of James Harvey
Mathes from Memphis Park (collectively, "the
Statues"). All three statues were stored by the City for
one week before being moved to a secure, undisclosed
January 8, 2018, in the wake of the sale and removal of the
Statues, SCV attempted to intervene in the City's action
for judicial review of the second waiver request ("Case
No. 17-1318-III") by filing a petition for temporary
restraining order and preliminary injunction in the Davidson
County Chancery Court. SCV asserted standing based on its
intervention in the pending contested case. The petition
sought an injunction to preserve the parks and the Statues
pending the conclusion of Case No. 17-1318-III and the
contested case. However, on the same day, the City filed a
notice of voluntary dismissal in Case No. 17-1318-III, and
the ALJ dismissed the contested case as moot on the
determination that the THPA does not apply.
January 10, 2018, SCV and several individuals identified as
the descendants of Nathan Bedford Forrest filed a petition
with the Commission under the UAPA. The petition asserted
seven "causes of action," including official
misconduct under Tennessee Code Annotated § 39-16-402;
criminal conspiracy under § 39-12-103; violation of the
Family Burial Grounds Protection Act, Tenn. Code Ann. §
46-8-101 to -103; and violation of the THPA. The petition
sought a declaration that the City's transfer was illegal
and fraudulent and an order "for the return of the
Statues unharmed to their original locations."
next day, January 11, 2018, SCV instituted the present action
by filing an unverified "Complaint for Injunction"
in the Davidson County Chancery Court against the City and
Greenspace (collectively, "Defendants"). The
Complaint purported to assert a cause of action under §
412(d) of the THPA. Additionally, SCV moved to consolidate
both Chancery Court cases. Defendants opposed consolidation
and argued that the trial court had no subject matter
jurisdiction to issue an injunction under the THPA. They
argued that the THPA no longer applied to the Parks or
Statues once they were sold to a private entity and there was
no pending waiver petition. At a hearing on January 25, 2018,
SCV struck its motion to consolidate ...