Duracap Asphalt Paving Co. Inc. v. City of Oak Ridge , 574 S.W.3d 859 ( 2018 )


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  •                                                                                            09/06/2018
    IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    July 18, 2018 Session
    DURACAP ASPHALT PAVING CO. INC. v. CITY OF OAK RIDGE ET AL.
    Appeal from the Chancery Court for Anderson County
    No. 16CH8034      M. Nichole Cantrell, Chancellor
    ___________________________________
    No. E2017-02414-COA-R3-CV
    ___________________________________
    The unsuccessful bidder on a contract for a street resurfacing project brought suit against
    the City of Oak Ridge, alleging that the city had not followed the competitive bidding
    process mandated by its municipal code. Plaintiff’s complaint sought declaratory relief,
    equitable relief and damages, as well as review under a writ of certiorari. The trial court
    determined that the lawsuit presented a proper case for review under the common law
    writ of certiorari and dismissed the pleaded original causes of action, finding their joinder
    to be inappropriate. The certiorari action was later dismissed after the trial court
    determined that it was not supported by a proper oath or affirmation. On appeal, plaintiff
    challenges the trial court’s conclusion that this case was proper for certiorari review. We
    affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
    and Remanded
    ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
    C.J., and JOHN W. MCCLARTY, J., joined.
    W. Edward Shipe and Nicholas W. Diegel, Knoxville, Tennessee, for the appellant,
    Duracap Asphalt Paving Company, Incorporated.
    John T. Batson, Jr. and Brian R. Bibb, Knoxville, Tennessee, for the appellee, City of
    Oak Ridge, Tennessee.
    OPINION
    BACKGROUND
    On April 5, 2016, the City of Oak Ridge (“the City”) issued an “Invitation to Bid
    and Instructions to Bidders” for contract “FY2016-168 Street Milling and Resurfacing
    Project” (“the Project Contract”). The invitation indicated that the City would receive
    bids until April 13, 2016 and noted that “The City will make the award as soon as
    practicable to the lowest responsible Bidder, price and other factors considered, provided
    it is reasonable and in the best interest of the City. Ultimately, only two bids were
    submitted in relation to the Project Contract. One bid was received from the Appellant,
    Duracap Asphalt Paving Co., Inc. (“Duracap”); the other bid was received from Rogers
    Group, Inc. (“Rogers Group”).
    On April 14, 2016, City Engineer Roger Flynn submitted a memorandum to Mark
    S. Watson, the City Manager, recommending that Duracap be awarded the Project
    Contract. Specifically, the memorandum stated:
    Recommendation
    Sealed bids were requested with two bids received and the recommended
    award is to the lowest bidder, with a submitted bid of $408,644.60. Staff
    recommends approval of the resolution as submitted that totals $430,000,
    allowing a contingency of $21,355.40 for unforeseen subsurface conditions.
    On April 27, 2016, the City Manager executed the memorandum and recommended that
    the City Council take action to award the Project Contract to Duracap.
    Action by the City Council was necessary, because under the City’s municipal code,
    obtaining material or services that involve an expenditure of more than $25,000.00 must
    be done by way of a City Council resolution.
    On May 9, 2016, the City Council convened at a regularly scheduled meeting in
    the City’s “Municipal Building Courtroom.” Among the items that had been placed on
    the agenda was a resolution to award the Project Contract to Duracap. In addition to the
    City Council members, the City Attorney, the City Manager, citizens, and a
    representative of Rogers Group were present. No representative or officer of Duracap
    appeared.
    Although the proposed resolution on the agenda had contemplated awarding the
    Project Contract to Duracap, a City Council member moved during the course of the
    meeting that the Project Contract be awarded to Rogers Group instead. Bill Chesney, a
    representative for Rogers Group, told the City Council that there was more value in
    Rogers Group’s bid “mainly because of the sales tax.” In expounding upon this claim, he
    informed the City Council as follows:
    We have an asphalt plant here in Oak Ridge. It’s been here for 40, 60
    years, however long, and so the sales tax will be paid to Anderson County.
    It would not be paid to Anderson County; it would be paid to the City of
    -2-
    Knoxville if you did use Duracap. So I just wanted to try to clear that up
    and to say that we put our quality up against anybody’s.
    The City Council eventually voted to award the Project Contract to Rogers Group, with
    only one member voting against the resolution.
    Shortly thereafter, on May 19, 2016, Duracap filed a three-count “Complaint for
    Declaratory or Equitable Relief and Damages and Writ of Certiorari” against the City in
    the Anderson County Chancery Court. Duracap alleged that, although it was the lowest
    responsible bidder under the municipal code, the City had failed to award it the Project
    Contract. In addition to contending that any contract the City had with Rogers Group
    should be considered void, Duracap requested certain damages and sought certiorari
    review.
    In a subsequently-filed answer, the City denied that it had violated its code and
    sought dismissal of Duracap’s case based on, among other reasons, Duracap’s failure to
    join Rogers Group, which the City averred was an indispensable party. The City’s
    answer also specifically attacked the asserted claim for money damages, in part, because
    Duracap had allegedly “improperly joined an original action for money damages with an
    appellate action for certiorari review.” On June 30, 2016, the City filed a motion for a
    protective order. In averring that it should not be subject to discovery, the City argued as
    follows: “[T]he Plaintiff seeks review of an administrative decision applying existing
    ordinances, this case is one for common law certiorari, and not for declaratory relief.”
    Duracap, of course, opposed the City’s motion for a protective order. It does not appear
    from the record that the trial court ever specifically ruled on the motion.
    On September 9, 2016, the City filed a motion to dismiss, again averring that
    Duracap’s complaint should be dismissed for failure to join Rogers Group as an
    indispensable party. Then, on October 19, 2016, the City filed a “Partial Motion to
    Dismiss on Alternative Grounds,” seeking dismissal of Duracap’s claims for declaratory
    judgment and damages. In its October 19 motion, the City argued that the law was clear
    that the “common law certiorari is the sole and appropriate remedy for challenging the
    administrative decision of a municipal board.”
    Although Duracap would eventually amend its complaint to add Rogers Group as
    a defendant, the trial court entered an “Order of Partial Dismissal” on November 2, 2016.
    Therein, the trial court concluded that the common law writ of certiorari was the proper
    vehicle for review of the City Council’s decision to award the Project Contract to Rogers
    Group. Because a petition for a common law writ of certiorari may not be joined with
    causes of action invoking the original jurisdiction of the trial court, the court dismissed
    Duracap’s claims for declaratory relief, equitable relief, and damages. The trial court
    allowed the remainder of the case to proceed, treating Duracap’s complaint as a petition
    for a common law writ of certiorari.
    -3-
    On October 23, 2017, the City filed a motion to dismiss for lack of subject matter
    jurisdiction. Therein, the City alleged that Duracap’s complaint did not comply with the
    statutory and constitutional verification requirements that are mandatory when a
    petitioner seeks a writ of certiorari. Shortly after the motion was filed, on November 20,
    2017, the trial court entered an order granting the City’s motion due to the court’s
    determination that Duracap’s complaint was not properly verified. Duracap timely
    appealed.
    ISSUES PRESENTED
    In its appellate brief, Duracap presents three issues for our review, which we have
    restated as follows:
    •Whether the trial court erred in granting the City’s motion to dismiss Count I of
    the complaint for declaratory and equitable relief based on its conclusion that the relief
    for the City’s alleged violations of the competitive bidding process was through a
    common law writ of certiorari.
    •Whether the trial court erred in dismissing Count II for an award of damages.
    •Whether the trial court erred by granting the City’s motion for a protective order
    thereby preventing Duracap from taking discovery.1
    DISCUSSION
    The crux of our focus in this appeal relates to the propriety of the trial court’s
    November 2, 2016 order of partial dismissal. The trial court’s grant of a motion to
    dismiss, which involves a legal conclusion, is subject to de novo review and is accorded
    no presumption of correctness. Hamilton v. Abercrombie Radiological Consultants, Inc.,
    
    487 S.W.3d 114
    , 117 (Tenn. Ct. App. 2014) (citations omitted). As already noted, the
    trial court determined in its order of partial dismissal that this case was properly
    reviewable under the common law writ of certiorari. If the trial court was correct in that
    assessment, then its concomitant dismissal of the original causes of action asserted by
    Duracap was unquestionably proper. See Goodwin v. Metro. Bd. of Health, 
    656 S.W.2d 383
    , 386 (Tenn. Ct. App. 1983) (noting that the “necessity of a separation of appellate
    review of a matter and trial of another matter ought to be self evident”); State v. Farris,
    No. W2017-00438-COA-R3-CV, 
    2018 WL 1225746
    , at *11 (Tenn. Ct. App. Mar. 9,
    2018) (“[T]he regulatory taking claim—and all of Mr. Howell’s claims invoking the
    1
    As we have noted in this Opinion, it is unclear to us that the trial court ever specifically ruled on
    the motion for a protective order. In any event, the propriety of a protective order regarding discovery is
    pretermitted in light of (a) our determination that this case was properly amenable to certiorari review and
    (b) our acknowledgment that Duracap has failed to challenge the trial court’s determination that its writ of
    certiorari petition was not properly verified.
    -4-
    original jurisdiction of the chancery court—should have been dismissed at the outset. We
    emphasize that a litigant may not bring claims invoking the original jurisdiction of the
    Chancery Court when he or she has initiated the proceedings by seeking a writ of
    certiorari.”); Watson v. City of LaVergne, No. M2006-00351-COA-R3-CV, 
    2007 WL 1341767
    , at *4 (Tenn. Ct. App. May 7, 2007) (“An appellate cause of action (i.e., a
    petition for common-law writ of certiorari) cannot be joined with an original cause of
    action .”). It further follows that, if the trial court was correct in holding that Duracap’s
    grievances were amenable to certiorari review, the resulting final judgment below must
    be affirmed inasmuch as Duracap has not challenged the trial court’s determination that
    its complaint was not properly verified in accordance with the law applicable to writs of
    certiorari. See Bing v. Baptist Mem’l Hosp.-Union City, 
    937 S.W.2d 922
    , 924 (Tenn. Ct.
    App. 1996) (noting that an issue was waived when it was not raised on appeal).
    I.
    The overriding concern at issue is how Duracap’s complaint should be considered.
    Although the filed complaint sought declaratory relief, equitable relief and damages, and
    review under a writ of certiorari, the parties2 vigorously dispute which claims are
    properly implicated and capable of consideration in this case. As a general matter,
    Duracap contends that review under a writ of certiorari is unavailable and that it should
    be allowed to proceed under its claims which invoke the trial court’s original jurisdiction.
    For its part, however, the City argues that the trial court was correct in holding that this
    case was proper for certiorari review.3
    The appropriate mechanism to challenge the action of a governmental board or
    body depends on the nature of the function that is at issue. The essential question posed
    is “whether the inferior tribunal, board or officer exercised a legislative or an
    administrative function.” McCallen v. City of Memphis, 
    786 S.W.2d 633
    , 638 (Tenn.
    1990) (citing Fallin v. Knox Cnty. Bd. of Comm’rs, 
    656 S.W.2d 338
    , 341 (Tenn. 1983)).
    As this Court has explained, “[i]n the former case, an action for declaratory judgment is
    appropriate, while in the latter case, a petition for common law writ of certiorari is the
    proper method by which to challenge an administrative decision.” Kiger v. Nixon, 
    1996 WL 512031
    , at *5 (Tenn. Ct. App. Sept. 11, 1996) (citing 
    McCallen, 786 S.W.2d at 639
    ).
    2
    We observe that Rogers Group was dismissed as a party to the appeal during the pendency of
    the appellate proceedings and, accordingly, Rogers Group did not file a brief in this matter.
    3
    The City also makes a number of alternative arguments in its brief as to why relief against it is
    improper. Among other things, the City contends that it is immune from money damages based on
    principles of sovereign immunity and that the requested declaratory relief is now moot given the
    performance of the resurfacing project by Rogers Group. Given our disposition herein, we need not
    entertain the potential validity of these and other alternative arguments raised by the City.
    -5-
    Distinguishing a legislative action from an administrative action4 can be done by focusing
    on whether the action taken makes new law or executes one already in existence.
    
    McCallen, 786 S.W.2d at 639
    (citation omitted). “In order to qualify as an
    administrative, judicial, or quasi-judicial act, the discretionary authority of the
    government body must be exercised within existing standards and guidelines.” 
    Id. Courts should,
    when appropriate, give effect to the substance of a pleading rather
    than its form. Brundage v. Cumberland Cnty., 
    357 S.W.3d 361
    , 371 (Tenn. 2011)
    (citations omitted). We note that the Tennessee Supreme Court has permitted, for
    example, an improperly filed petition for declaratory judgment to be treated as a petition
    for writ of certiorari, and conversely, it has allowed an improperly filed petition for writ
    of certiorari to be treated as a petition for declaratory judgment. 
    Id. (citing McCallen,
    786 S.W.2d at 640; 
    Fallin, 656 S.W.2d at 342
    ). Of course, while courts may yield to
    leniency when seeking to ascertain the substance of the relief that is being requested in a
    pleading, how a complaint or petition is construed can have significant consequences. As
    this Court has noted, “[w]here the relief sought in a declaratory judgment action is the
    same relief that is available under common law writ of certiorari, the action will be
    treated as a certiorari action, and the requirements of such an action will be applied.”
    State ex rel. Moore & Assocs., Inc. v. West, 
    246 S.W.3d 569
    , 581 (Tenn. Ct. App. 2005)
    (emphasis added) (citations omitted).
    Inasmuch as Duracap nominally sought both declaratory relief and review by way
    of the writ of certiorari in its initial complaint, how should that pleading be construed?
    As a preface to our ultimate conclusion, we express our opinion that the decision at issue
    was not legislative in nature. It was not a decision that brought new law into existence;
    rather, the decision to award the Project Contract to Rogers Group was a decision made
    within the confines of existing law in light of pre-defined standards.5 In other words, as
    is characteristic of administrative action, the decision executed law already in existence.
    In this vein, we note that both parties acknowledge that the City’s municipal code
    provides that “[c]ompetitive bids on all supplies, materials, equipment, and services,
    except those specified elsewhere in this chapter, and contracts for public improvements
    shall be obtained, whenever practicable, and the purchase or contract awarded to the
    lowest responsible bidder, provided that any or all bids may be rejected as prescribed in
    this chapter.” (emphasis added). Further, we observe that the determination of the
    “lowest responsible bidder” is subject to the consideration of several criteria; the
    municipal code specifically outlines that price, along with nine other considerations, are
    to be taken into account. Among the considerations in addition to price are the “quality
    4
    The term “administrative” is frequently used interchangeably in case law with “judicial” or
    “quasi-judicial.” 
    McCallen, 786 S.W.2d at 638
    (citation omitted).
    5
    Whether these standards were appropriately considered and applied, of course, presents another
    question. There can be no dispute, however, that the City’s municipal code provided a framework
    restricting unbridled discretion with regard to the award of government contracts.
    -6-
    of performance of previous contracts or services” and the “character, integrity, reputation,
    judgment, experience and efficiency of the bidder.”
    In support of its argument that it is entitled to sue for declaratory relief as opposed
    to pursuing relief by way of a writ of certiorari, Duracap cites to a number of cases,
    namely Browning-Ferris Industries of Tennessee, Inc. v. City of Oak Ridge, 
    644 S.W.2d 400
    (Tenn. Ct. App. 1982), Anderson v. Metropolitan Development & Housing Agency,
    No. M2012-01789-COA-R3-CV, 
    2013 WL 3941079
    (Tenn. Ct. App. July 26, 2013), and
    Duckworth Pathology Group, Inc. v. Regional Medical Center at Memphis, No. W2012-
    02607-COA-R3-CV, 
    2014 WL 1514602
    (Tenn. Ct. App. Apr. 17, 2014). Duracap cites
    to the Browning-Ferris decision in part to argue that, in a former non-certiorari action,
    the City had been successfully sued for violating a competitive bid process. Duracap
    cites to the latter two cases in support of its primary appellate contention that certiorari
    review is unavailable if the decision at issue was not first subject to an “internal appeal
    process.”
    With respect to the decision in Browning-Ferris, we have no quarrel with the
    holding in that case that an aggrieved low bidder had standing to sue the City for its
    failure to comply with competitive bidding requirements. However, we would note that
    the Browning-Ferris court did not contemplate the propriety, or lack thereof, of review
    by writ of certiorari, as both the Anderson and Duckworth decisions acknowledge. See
    Duckworth Pathology Grp., Inc., 
    2014 WL 1514602
    , at *7 (noting that the issue before
    this Court in Browning-Ferris was “limited to standing, and there was no discussion of
    subject matter jurisdiction or the possibility of proceeding via a petition for certiorari”);
    Anderson, 
    2013 WL 3941079
    , at *4 n.2 (“Our opinion in Browning-Ferris contains no
    indication that the question of jurisdiction was ever raised at any point in the course of
    that litigation.”). Certainly, therefore, Browning-Ferris does not stand for the proposition
    that challenges to this particular municipality’s competitive bid processes must be
    pursued by declaratory judgment as opposed to through a writ of certiorari. That
    particular question was not specifically entertained.
    Duracap’s contention with respect to Anderson and Duckworth requires a slightly
    deeper look. As noted above, Duracap argues that these cases stand for the proposition
    that an “internal appeal process” is required with respect to the administrative decision
    being challenged if certiorari review is to be appropriately utilized. For the reasons
    explained below, we disagree.
    In our view, having reviewed the relevant decisions in case law for what they hold
    and do not hold, what remains important to the present inquiry is whether or not the
    aggrieved party is seeking review of a decision that is the product of quasi-judicial action.
    If so, a common law writ of certiorari is the proper vehicle by which to seek review. Our
    understanding of this principle is not altered by the Anderson and Duckworth decisions
    -7-
    relied upon most prominently in this appeal by Duracap. Respectfully, we are of the
    opinion that Duracap’s reading of these cases misses the mark.
    In Anderson, a painting contractor filed a complaint against Nashville’s
    Metropolitan Housing and Development Agency alleging that the agency had violated its
    own rules by failing to choose him as the lowest bidder on a particular contract.
    Anderson, 
    2013 WL 3941079
    , at *1. In response to the litigation brought against it, the
    agency contended that the trial court lacked subject matter jurisdiction and argued that
    the appropriate way to contest the contract award was by way of a common law writ of
    certiorari. 
    Id. The trial
    court agreed and dismissed the case, finding that the contractor
    had filed his complaint after the sixty day time limit for seeking a writ had expired. 
    Id. When this
    Court affirmed the trial court, we noted that the availability of certiorari
    review implies the existence of some sort of quasi-judicial procedure. 
    Id. at *3.
    We
    specifically observed that, although a quasi-judicial procedure was available to the
    contractor, he had not pursued it:
    The [quasi-judicial procedure] for review in this case is found in
    Section VII of the MDHA handbook, which is titled “Appeals and
    Remedies.[”] It declares among other things, that “ . . . any protest against
    an award of a solicitation must be received from an offeror within fifteen
    (15) calendar days of award (Board approval, execution of contract or
    Purchase Agreement), or the protest will not be considered.” The
    handbook also describes a series of graduated steps the agency is required
    to follow to resolve such a protest once it is received, including the
    participation of the MDHA Executive Director.
    Anderson did not file a protest with the MDHA related to any of the
    awards he objected to. Consequently, he did not pursue available
    administrative remedies. Additionally, he did not comply with the sixty
    day requirement for the filing of a petition for writ of certiorari.
    
    Id. As we
    read the opinion, certiorari review was the appropriate vehicle to challenge
    the award in Anderson because there was a quasi-judicial procedure in place. Although
    the aggrieved party did not take advantage of that procedure, had he pursued available
    administrative remedies, which we described as providing for a quasi-judicial procedure,
    further review should have then been by certiorari. Other cases have similarly held that
    certiorari relief is the proper remedy when aggrieved parties have attempted to bypass
    available quasi-judicial procedures which would themselves give rise to certiorari review.
    See 
    West, 246 S.W.3d at 580
    (“It is clear that Moore & Associates was required to
    exhaust its administrative remedies by appealing the zoning administrator’s decision to
    the Board of Zoning Appeals. . . . [A] hearing before the Board would have resulted in a
    record that the court could review under the common law writ of certiorari
    -8-
    procedure[.]”). Although we recognize that a so-called “internal appeal process” was
    available in Anderson, Duracap’s insistence on the necessity of such an appeal is
    misplaced. Certiorari was not required in Anderson because certiorari, by rule, follows
    from an “internal appeal process” at the administrative level. Rather, certiorari review
    was required in Anderson because there was a quasi-judicial procedure in place which
    would have made subsequent challenges to the resulting decision amenable to certiorari
    review. Although this quasi-judicial procedure happened to exist by way of an “internal
    appeal process,” the mere existence of an appeal was not the dispositive criterion. As is
    evident from the guidance of a recent Tennessee Supreme Court case to which we will
    turn shortly, the performance of quasi-judicial action is what remains important to the
    availability, or lack thereof, of common law certiorari review.
    In Duckworth, a surgical pathology group filed an action in chancery court
    claiming that the Regional Medical Center at Memphis (“the Med”) had violated its own
    rules and acted arbitrarily by failing to award the pathology group a contract after a
    request for proposals process. Duckworth Pathology Grp., Inc., 
    2014 WL 1514602
    , at
    *1. Although the pathology group pursued relief by way of the statutes governing
    petitions for certiorari, the Med filed a motion to dismiss asserting that the pathology
    group had no basis for challenging its contracting decisions given the absence of a
    contractual relationship between the parties. 
    Id. at *1-2.
    During the hearing on its
    motion to dismiss, the Med then orally moved to dismiss the case given the fact that the
    pathology group’s chancery court filings were not verified as is required for petitions for
    writs of certiorari. 
    Id. at *2.
    Although the trial judge subsequently ruled orally that the
    case would be dismissed for lack of subject matter jurisdiction, the pathology group filed
    a motion to reconsider before a written order of dismissal was ever entered. 
    Id. In its
    motion to reconsider, the pathology group asserted that it was never required to file a writ
    of certiorari to obtain relief against the Med; it further contended that a losing bidder in a
    competitive bidding process is allowed to file for declaratory and equitable relief. 
    Id. As such,
    the pathology group argued that its action could not be dismissed for failure to
    comply with the statutory requirements for a writ of certiorari. 
    Id. The trial
    court
    ultimately entered an order granting the motion to reconsider, whereby it retracted its
    ruling of dismissal and stated that it would reset the Med’s pending motion to dismiss
    after the pathology group filed an amended petition. 
    Id. The pathology
    group
    subsequently filed an amended pleading, omitting any reference to the certiorari statutes.
    
    Id. at *3.
    However, the trial court eventually dismissed the case, citing several bases for
    dismissal. 
    Id. When the
    case was appealed to this Court, we considered, among other things,
    whether the pathology group’s petition should have been considered as a petition for writ
    of certiorari or a complaint for equitable relief. Although we referred to our opinion in
    Anderson in an attempt to address this question, we ultimately found the result in
    Anderson distinguishable. Whereas the aggrieved bidder in Anderson was required to
    proceed by a petition for certiorari, we held that it was inappropriate to require the
    -9-
    pathology group to do the same. 
    Id. at *8.
    In explaining our reasoning on this issue, we
    stated as follows:
    Despite the many similarities between Anderson and the case at bar,
    we find that Anderson is not controlling as to the precise issue before us. In
    deciding that a petition for certiorari was the exclusive remedy for the
    aggrieved party before it, the Anderson Court specifically took note of the
    fact that the certiorari statutes “refer to court review of an order or
    judgment, thus implying the existence of some sort of quasi-judicial
    procedure at the administrative level that the aggrieved party has recourse
    to before having to turn to the courts.” In Anderson, that quasi-judicial
    procedure was spelled out in the “Appeals and Remedies” section of the
    agency’s handbook, which set forth the process for an offeror to protest a
    contract award and described “a series of graduated steps the agency [was]
    required to follow to resolve such a protest once it is received[.]” In the
    case before us, however, the Med had no process for a rejected bidder to
    pursue an appeal. [The pathology group] simply wrote a letter to the Med
    notifying it of its objections to the selection process, and the Med
    responded with a letter stating that the Med disagreed with [the pathology
    group’s] position. Thus, there was no hearing or proceeding “of some sort
    of quasi-judicial procedure” that could be reviewed, and no record of the
    evidence. The provisions of the certiorari statutes “plainly presuppose that
    a judicial or quasi-judicial proceeding is the subject of review and that a
    ‘record’ of evidence, common in such proceedings, is available for
    certification to the reviewing court.” “The application of pre-defined
    standards, the requirement of a hearing, and the requirement of a record are
    earmarks of quasi-judicial proceedings.”
    
    Id. (internal citations
    omitted).
    Although the Duckworth court noted that, unlike in Anderson, there was no
    process for an appeal available to the pathology group, the upshot of this
    acknowledgment was that, in the absence of any further process which would have
    provided for a quasi-judicial procedure, certiorari review was improper given that the
    decision complained of was not the product of quasi-judicial action. Again, as was noted,
    “there was no hearing or proceeding . . . that could be reviewed, and no record of the
    evidence.” 
    Id. Notwithstanding Duracap’s
    desire to interpose an “appeal” requirement as a
    condition precedent to common law certiorari review, certiorari review is not necessarily
    contingent on the existence of an “internal appeal process” at the administrative level.
    Although there is no question that the Anderson court cited to the existence of internal
    administrative review as supporting the availability of certiorari review in that case,
    - 10 -
    again, it is not the existence of an “appeal” that is significant. The importance of the
    administrative appeal process referenced in Anderson lay in the fact that we considered
    that process to constitute the quasi-judicial action that is a predicate to certiorari review.
    See 
    Brundage, 357 S.W.3d at 370
    (noting that “a petition for writ of certiorari is the
    appropriate way to obtain judicial review of ‘quasi-judicial’ decisions”).
    As suggested earlier, a recent decision from the Tennessee Supreme Court,
    McFarland v. Pemberton, 
    530 S.W.3d 76
    (Tenn. 2017), confirms our understanding that
    a governmental body’s performance of a quasi-judicial function, as opposed to the
    existence of some “internal appeal process” at the administrative level, controls the
    availability of certiorari relief. In McFarland, the Tennessee Supreme Court addressed a
    controversy surrounding a judicial election that took place on August 7, 2014 for the
    Ninth Judicial District in East Tennessee. 
    Id. at 80.
    One candidate for the election,
    Michael Pemberton, filed a nominating petition with the Roane County Election
    Commission (“the Election Commission”) on February 3, 2014. 
    Id. Although Mr.
    Pemberton’s nominating petition listed an address in Roane County as his residence, Mr.
    Pemberton also owned a home in Knox County. 
    Id. In addition
    to Mr. Pemberton, the
    judicial seat at issue was sought by another candidate, William McFarland. 
    Id. As is
    relevant to our discussion herein, a resident of the Ninth Judicial District
    went to the Election Commission in the spring of 2014 to challenge Mr. Pemberton’s
    candidacy based on residency. 
    Id. After this
    resident filed a complaint, the Election
    Commission conducted an independent investigation to determine whether Mr.
    Pemberton was a resident of Roane County and set the matter for a public hearing at its
    regular meeting on April 28, 2014. 
    Id. at 80-81.
    Although Mr. Pemberton represented
    himself at the hearing, Mr. McFarland did not participate. 
    Id. at 81.
    At the conclusion of
    the hearing, the Commissioners voted in favor of placing Mr. Pemberton on the ballot.
    
    Id. at 82.
    Mr. Pemberton eventually won the ensuing judicial election by a narrow
    margin over Mr. McFarland. 
    Id. at 83.
    Although Mr. McFarland filed an election contest in chancery court on August 20,
    2014, premised solely on questions pertaining to Mr. Pemberton’s residency, Mr.
    Pemberton filed a motion in opposition to the action arguing that he was entitled to
    judgment as a matter of law. 
    Id. at 83-84.
    According to Mr. Pemberton, the suit was
    barred, among other reasons, based on the 60-day statute of limitations applicable for
    appeals of an administrative decision. 
    Id. at 84.
    This position was also shared by
    Election Commission members who had been sued in the chancery contest in their
    official capacities. 
    Id. The trial
    court ultimately dismissed Mr. McFarland’s complaint,
    holding that the Election Commission hearing was a quasi-judicial act and that the
    decision resulting from that hearing was a final administrative decision. 
    Id. at 84-85.
    According to the trial court, the proper method of challenging that decision was by filing
    a petition for writ of certiorari. 
    Id. at 85.
    Because Mr. McFarland had not done so within
    sixty days of the Election Commission’s decision, his claim was considered time-barred.
    - 11 -
    
    Id. Our Supreme
    Court ultimately affirmed, noting that “[b]ecause the Election
    Commission was performing a quasi-judicial function, its decision was subject to judicial
    review by common-law writ of certiorari.” 
    Id. at 104.
    Were we to endorse the gloss Duracap requests that we place on the Anderson and
    Duckworth decisions, our actions would be clearly inconsistent with our Supreme Court’s
    holding in McFarland. There was simply no mention of an administrative appeal or
    “internal appeal process” in McFarland, and Duracap’s insistence on such a requirement
    is misplaced. As we have noted, the proper emphasis is on whether the governmental
    body was performing a quasi-judicial function. The McFarland court did not
    contemplate that certiorari review was inappropriate because there first needed to be
    some type of appeal of the Election Commission’s decision; instead, it held that certiorari
    review was proper because the determination made was the product of a quasi-judicial
    function. It follows in this case that if the City Council was performing a quasi-judicial
    function when it awarded the Project Contract to Rogers Group, its decision was subject
    to judicial review by writ of certiorari. In our opinion, therefore, Duracap’s insistence on
    an “internal appeal process” is but a red herring.6
    With the foregoing in mind, we are of the opinion that certiorari review was the
    appropriate method of review in this instance. As the trial court noted when it entered its
    order of partial dismissal:
    The Plaintiff is requesting this Court to review a decision made by a
    lower board or commission to determine if said board failed to act
    according to the ordinances already set forth regarding the lowest bidder
    contracts with the City. The decision that Plaintiff is requesting review of
    is an administrative decision of a lower board that is not “legislative” in
    nature, therefore not requiring a declaratory judgment to obtain judicial
    review of a “legislative” decision.
    The administrative decisions of the city council of Oak Ridge, in
    applying an existing ordinance to a particular situation are quasi-judicial in
    nature and therefore common law Writ of Certiorari is the proper method to
    seek review.
    This is an accurate assessment of the nature of the City Council action about which
    Duracap complains. Further, this case is not like Duckworth, where we noted that there
    “was no hearing or proceeding ‘of some sort of quasi-judicial procedure’ that could be
    6
    We certainly do not question that, in many instances, an “internal appeal process” at the
    administrative level will be how a governmental body or board employs quasi-judicial procedure and
    performs a quasi-judicial function. With that said, the mere absence of an administrative appeal does not
    countenance against certiorari relief when the administrative decision is itself the product of quasi-judicial
    action.
    - 12 -
    reviewed, and no record of the evidence.” See Duckworth Pathology Grp., Inc., 
    2014 WL 1514602
    , at *8. Here, the issue of the Project Contract was heard at an open meeting
    of the City Council, and a record of the proceedings exists for review.
    Indeed, in this particular case, the City Council’s action in awarding the Project
    Contract to Rogers Group constitutes a quasi-judicial act. In addition to the fact that the
    City Council’s decision was subject to pre-defined standards codified in the municipal
    code, the City Council’s determination was made with opportunity to be heard on the
    issue, after the proposed resolution awarding the Project Contract to Duracap had been
    set on the City Council’s agenda. Although Duracap did not participate in the meeting
    when the issue of the Project Contract was considered and heard, ostensibly because it
    believed it would secure the award based on its low bid, a representative from Rogers
    Group was present and participated. Moreover, a number of citizens shared concerns and
    comments during the consideration of the issue. Finally, a record of the proceedings
    exists, which enables a court to review whether or not the City Council acted permissibly
    in awarding the Project Contract to Rogers Group. Review by the common law writ of
    certiorari was appropriate in light of these considerations establishing the performance of
    quasi-judicial administrative action, and the trial court did not err in failing to hold
    otherwise. See 
    Brundage, 357 S.W.3d at 370
    (noting that a hearing, record, and
    application of pre-defined standards are earmarks of quasi-judicial proceedings).
    In expressing our opinion on this issue, we certainly do not hold that the City
    Council’s action in this matter was appropriate or would have been sustained upon proper
    certiorari review.7 We simply hold that, given the existence of pre-defined standards by
    which the City Council’s decision can be adjudged, public consideration of the issue, the
    opportunity to participate in the public hearing, and the availability of a record of the
    proceedings regarding the decision, common law certiorari was the proper vehicle for
    review. It therefore follows that the original causes of action asserted by Duracap were
    appropriately dismissed. Further, because Duracap did not appeal the trial court’s
    determination that its petition was not properly verified as required for writs of certiorari,
    the trial court’s final judgment of dismissal shall remain undisturbed.
    7
    Again, whether the standards governing the City Council’s action were appropriately applied or
    considered remains another question. Such concerns pertain to the outcome of certiorari review, not
    whether a writ of certiorari is the proper method by which to seek judicial review. Obviously, a
    governmental body’s actions will not survive scrutiny under certiorari review if they are not supported by
    material evidence or can otherwise be considered illegal, arbitrary, or capricious. See Waste Connections
    of Tenn., Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2012-02290-COA-R3-CV, 
    2013 WL 1282011
    , at *6-8 (Tenn. Ct. App. Mar. 27, 2013) (reversing trial court’s dismissal of common law
    petition for writ of certiorari when “factors and criteria not discussed, [and] no materials or evidence were
    introduced into the record prior to the vote on the Resolution”).
    - 13 -
    II.
    In closing, we briefly comment on Duracap’s claimed error that the trial court
    erred in granting the City’s motion for a protective order. As an initial matter, as we have
    already noted, it does not appear that the trial court ever specifically ruled on the motion
    for a protective order. Although Duracap’s brief recites that “[t]he trial court held that
    Duracap could not conduct discovery to support its challenge,” no citation to the record is
    offered in support of this proposition. Therefore, even assuming the record did contain a
    ruling on the motion for protective order (of which we are presently unaware), Duracap’s
    failure to provide appropriate citations regarding this matter results in a waiver of the
    issue. See Tenn. Ct. App. R. 6(a)(4) (noting that the written argument shall contain “[a]
    statement of each determinative fact relied upon with citation to the record where
    evidence of each such fact may be found”); Bean v. Bean, 
    40 S.W.3d 52
    , 55 (Tenn. Ct.
    App. 2000) (“Plaintiff’s failure to comply with the Rules of Appellate Procedure and the
    rules of this Court waives the issues for review.”). Regardless, the appropriateness of any
    protective order regarding discovery is a pretermitted concern given our holding herein
    and Duracap’s failure to challenge the basis upon which its certiorari action was
    dismissed.
    CONCLUSION
    For the foregoing reasons, the judgment of the trial court is hereby affirmed.
    ________________________________
    ARNOLD B. GOLDIN, JUDGE.
    - 14 -