by the numbers · 2/13/2018 6 contracts reitz v. city of mt. juliet; tn court of appeals plaintiff...

2/13/2018

1

CASE LAW AND

AG OPINION UPDATE

TMAA Winter SeminarCrista Cuccaro & Mike Billingsley

Franklin Police DepartmentFebruary 15, 2018

BY THE NUMBERS

June 1, 2017 through December 31, 2017

59 cases and 8 Attorney General

Opinions

Tennessee Court of Appeals: 39 cases

Tennessee Supreme Court, Workers’

Compensation Panel: 2 cases

United States Court of Appeals for the

Sixth Circuit: 18 cases

CASE LAW AND AG OPINION UPDATE

2/13/2018

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BY TOPIC

ADA: 2

Appeals: 6

Assault & Battery: 1

Cable TV Regulation: 1

City Charter: 1

Civil Procedure: 5

Civil Rights: 9

Contracts: 3

Constitutional Law: 3

Eminent Domain: 1

Employment Law: 2

FMLA: 1

Firearms: 1

GTLA: 8

Mandamus: 1

Open Meetings & Records: 6

Ordinance or Resolution: 1

RLUIPA: 1

Schools: 1

Seizure: 1

Slow Pay Motion: 1

Taxes: 3

Workers’ Comp: 2

Zoning: 3

CASE LAW AND AG OPINION UPDATE

APPEALS

Hunter v. City of Chattanooga Beer Board; TN Court of Appeals

Off the Chain (2000), Boo-Coe’s (2004), G-Spot (2004), Wet Bar (2007), El Pokar de Ases (2011)

In 2012, Hunter began renting the property as an event hall and had to go before the Beer Board

Based on prior non-compliance, Beer Board denied beer permit

Hunter appealed denial pro se; 3 days later, a writ of certiorari was issued

Court of Appeals agreed with the trial court that the lack of verification meant no subject matter jurisdiction

TN Constitution: Courts shall have the power to issue writs of certiorari on sufficient cause supported by oath

Tenn. Code Ann. § 27-8-106: A petition for certiorari may be sworn and shall state that it is the first application for the

writ

Petition without recitation about first application is not fatal, but the lack of verification deprives court of subject

matter jurisdiction

“EVENTFUL EVENT HALL”|

CASE LAW AND AG OPINION UPDATE PAGE 9

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APPEALS

ISI Holdings of TN v. Mount Pleasant Regional Planning Commission; TN

Court of Appeals

MPC approved Mount Pleasant Power System’s construction of utility infrastructure at a site

where the zoning did not allow public utility uses; adjacent landowners filed an appeal of that

approval and trial court overturned approval

After judgment, Mount Pleasant amended its ordinance to allow the construction and argued

for mootness in post-judgment brief

Court of Appeals found the claim to be moot

A case is moot when it no longer offers to serve relief to the prevailing party

Factors for determining mootness: reason the case is alleged to be moot, the stage of the

proceeding, the importance of the issue to the public, probability the issue will recur

Exceptions to mootness: great public importance, capable of repetition, collateral

consequences to a party remain, defendant voluntarily stops engaging in challenged conduct

| “MUNICIPAL MOOTNESS”


CABLE TV

Montgomery County v. FCC; US Sixth Circuit

In early 2007, FCC issued an order establishing new rules to allow applicants for new franchises to obtain franchises more

easily. This rule limited unreasonable demands from local governments and barred requirements to provide non-cable

services as part of the cable franchise.

Later in 2007, by a second order, the FCC expanded the rule to incumbent cable providers and clarified the order.

Various local governments challenged (1) the FCC’s interpretation of “franchise fee” to include noncash exactions and in-

kind, cable-related exactions and (2) the mixed-use rule limiting franchising authorities to regulating only cable services,

which was now being applied to incumbent providers

The Sixth Circuit found that the FCC had not defined “in-kind” or given any basis for the rule and that the FCC’s

decision to apply the mixed rule to incumbent providers was no supported by the statutory scheme of the

Communications Act

Good overview of rulemaking!

| “FRANCHISE FEE FIASCO”


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CHARTER

TN Firearms Association v. Metro Nashville; TN Court of Appeals

TN State Fairgrounds are controlled by a Board of Commissioners and the Board voted to prohibit the booking of gun shows

starting in 2017

TN Firearms Association and its plaintiff alleged two counts: (1) that the prohibition was a local limitation on legal transfer of

firearms in violation of Tenn. Code Ann. § 39-17-1314, and (2) that the Board did not have authority to institute the ban

pursuant to Metro’s charter, which noted that all activities occurring on the fairgrounds in 2010 would be allowed to continue

Court found that state law provided for consideration of other code provisions and that one such provision (Tenn.

Code Ann. § 39-17-1311) allowed the fairgrounds administrator to approve (or disapprove) gun and knife shows

The Court also found the plaintiff had no private right of action under the charter, either explicit or implicit

Factors: whether party bringing cause is intended beneficiary, whether there is any indication of legislative intent, and whether

implying such a remedy is consistent with underlying purposes for legislation

| “RIGHT TO ARMS ≠ RIGHT TO PRIVATE CLAIM”


CIV PRO

Bonnie Shaw v. Metro Nashville; TN Court of Appeals

Bonnie Shaw was a bus driver for Metro and she tripped on buckled and cracked pavement while attending a training for

her job; the buckling was attributed allegedly to the flood three years earlier

Shaw filed a claim alleging negligence and asserting that Metro should have known about the defect and it breached her duty

of care

Metro filed a MSJ on August 4, 2016, and Shaw moved to amend her complaint on September 23, 2016

Court of Appeals held that the trial court failed to properly exercise its discretion when it did not rule upon the

pending motion or undertake the analysis

Proponent of motion to amend must be heard and court must consider relevant factors

Factors: Undue delay in filing, lack of notice to opposing party, bad faith by the moving party, repeated failure to cure

deficiencies in previous amendments, undue prejudice to opposing party, futility of amendment

|“MOTION IN THE WIND”


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CIVIL RIGHTS

Smith v. City of Troy, US Sixth Circuit

Smith experienced a seizure while driving. He was acting erratically. The police were called and confronted him. He was non-responsive to instructions.

An officer got him to the ground using a leg sweep and tried to gain control over Smith. A second officer arrived—the second officer tased Smith 8 times for a total of 48 seconds during a two minute encounter. Smith was not under arrest.

The Sixth Circuit overturned the District Court, finding the first officer violated Smith’s right to be free from excessive force with the leg sweep and the second officer’s repeated tasering was also unreasonable

Factors for reasonable use of force: severity of the crime at issue, whether the suspect posed a threat to officers or other,and whether the suspect was actively resisting arrest or attempting to avoid arrest by fleeing

Contra Roell v. Hamilton County, on page 1 of the materials, where plaintiff was in a state of excited delirium, had committed property damage, was acting aggressive, was tased repeatedly and eventually died—the Sixth Circuit did not find excessive force in this case

| “EXCESSIVELY EXCESSIVE”


CIVIL RIGHTS

Boler v. Earley; US Sixth Circuit

Residents of Flint, Michigan who were affected by contaminated water brought suit against state and local officials, under the

Safe Drinking Water Act (SDWA) and claiming § 1983 violations

The issue underlying this case was whether the SDWA precluded § 1983 claims; the District Court had concluded that the

§ 1983 were precluded based on previous cases in the US Supreme Court and First Circuit

Court concluded that the § 1983 claims were not precluded

Court examined congressional intent and the comprehensiveness of the statutory language of the SDWA; the Court opined

that the SDWA was focused on interstate economic impacts of polluted water, not constitutional violations

The SDWA’s remedies are more limited than those generally available under § 1983, as the statute provides for injunctive

relief only, not for recovery of damages or other monetary relief available to Plaintiffs with successful § 1983 claims

“DON’T DRINK THE WATER”|


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CONTRACTS

Reitz v. City of Mt. Juliet; TN Court of Appeals

Plaintiff and City entered into a settlement agreement that included a non-disparagement provision and

required the City to give a neutral employment reference

Plaintiff started working for TSA and claimed the City shared information that violated the non-

disparagement clause and she brought a breach of contract claim and a negligent supervision claim

She admitted that her employment with TSA was not affected by disparaging remarks and she did not

know of any other occasion or employer who was given disparaging information

Court upheld grant of summary judgment for City

Plaintiff could not establish damages or dispute the City’s statement of undisputed facts

In a breach of contract case, damages are “nothing more than a payment in money for actual losses caused

by the breach”

In TN, the general rule is that can be no recovery of damages for mental anguish caused by breach of

contract

“NOT NON-DISPARAGING?”|


CONTRACTS

Metro Nashville v. Teleport Communications America, LLC; TN Court of Appeals

Metro Nashville and TCG entered into an agreement whereby TCG was required to pay Metro a 5% franchise fee as

prescribed by ordinance for TCG’s use of public ROW

In 2002, TCG refused to pay and alleged the fees were unlawful

In 2004, the Court of Appeals invalidated the ordinance imposing the 5% because it was not reasonably related to Metro’s

costs for regulation

Metro sued to recover fees from TCG on contractual theory, asserting that TCG occupied 0.07486 of Metro’s ROW, and

that the other provisions of the contract entitled it to some amount of $$

Court upheld the trial court’s award of fees to Metro, including the amount

TCG cannot expect to get the benefits of the agreement without paying anything

Court of Appeals upheld award of $550,000, even though Metro argued for $1,511,856

“FIFTEEN YEARS

OF FRANCHISE FEES”|


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CON LAW

Bormuth v. City of Jackson; US Sixth Circuit

Plaintiff claims that Jackson County Board of Commissioners (Michigan) opening its public meeting with a

prayer violated the Establishment Clause

Plaintiff identified as Pagan and Animist; he claimed that the prayers were deeply offensive to him and he

feels like he was in church and that he was being forced to worship Jesus Christ to participate in County

government

Plaintiff narrowed in on the commissioners giving the prayer rather than an invited clergyperson

Sixth Circuit upheld the district court’s conclusion that the prayers did not violate the

Establishment Clause

Legislative prayer is a historical practice and “our tradition assumes that adult citizens, firm in their own

beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith”

Circuit split that could lead to a Supreme Court decision on the matter—Rowan County, NC lost a similar

case in the Fourth Circuit and has appealed it to the US Supreme Court

Excellent overview of the Establishment Clause

“THE PERENNIAL

PRAYER QUESTION”|


FMLA

Mullendore v. City of Belding; US Sixth Circuit

Plaintiff was the City Manager of Belding and notified its five City Council members that she was taking time off due to a

surgery and would be working remotely following the surgery

Council member Cooper sent an email to other Council members noting “it is no secret that I am not in favor of our City

Manager…”

While she was out, the City Council fired her, noting that she has been a source of controversy

Plaintiff sued under FMLA; District Court granted SJ for the City because Plaintiff had not given sufficient notice that she

would taking FMLA leave and regardless, defendants provided non-discriminatory reason for termination

Sixth Circuit upheld District Court’s grant of summary judgment

Plaintiff had declined to fill out FMLA paperwork on several occasions

District Court characterized her leave as an accommodation rather than FMLA

Political controversy was reason for termination rather than FMLA, although the timing aligned with leave

Pro Tip: Don’t terminate people because they are on FMLA!

“NO SECRETS”|


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MANDAMUS

State ex rel. Appaloosa Bay LLC v. Johnson County; TN Court of Appeals

Developer of a subdivision on Doe Mountain went bankrupt in 2011; Developer had deposited $451,000 into escrow for the completion of roads and access to the subdivision; upon bankruptcy, the planning commission declared the developer in default and released the money in escrow to the State for infrastructure

Two owners of property brought suit for breach of contract between the planning commission and the developer and a mandamus action requiring Johnson County to build the required roads

Court found that plaintiffs were not beneficiaries of the contract and did not have standing to sue for specific performance

In order to proceed as an intended beneficiary, third party must show (1) a valid contract made upon sufficient consideration between the parties and (2) the clear intent to have a contract operate for the benefit of a third party

Parties have not otherwise agreed

Writ of mandamus cannot be used to control discretionary acts

“UP A MOUNTAIN

WITHOUT A ROAD”|


OPEN MEETINGS

Oliver Wood v. Jefferson County Economic Development Committee; TN Court of Appeals

Jefferson County Economic Development Oversight Committee (EDOC) was created by the Chamber of Commerce at

the request of various local governmental entities; its purpose was to generate economic development activities for those

entities

Issue was whether the EDOC was a private entity subject to the open meetings act

Factors: (1) level of government funding of entity; (2) extent of government involvement with, regulation of, or control over

entity; (3) whether the entity was created by an act of legislature or previously determined to be open

Trial court found for the EDOC, but Court of Appeals overturned the ruling

Mayors agreed economic development was a primary governmental purpose

Local government contributed significant amounts to operating budget

Court of Appeals rejected EDOC’s proposed interpretation for a new requirement that entity must be able to make

binding decision in order to be performing a governmental function

But see Memphis Publishing Company v. City of Memphis…

“OPEN SESAME”|


2/13/2018

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OPEN RECORDS Memphis Publishing Company DBA The Commercial Appeal v. City of

Memphis; TN Court of Appeals

The Commercial Appeal sought records from the non-profit professional association, the IACP,

which was assisting the City of Memphis in hiring its new chief; when IACP declined, the

newspaper sued under the TPRA

The IACP was collecting applications, performing initial interviews, and choosing 6 candidates

to recommend

The trial court found that the records were subject to disclosure, but that the violation

was not willful; the Court of Appeals reversed

Threshold question is whether the entity is acting as the functional equivalent of a gov’t agency

Important to identify the function—here, the Court noted that the governmental function is

hiring the director of police, which was never delegated or assigned to the IACP

Merely providing services for or doing business with a gov’t agency does not render a private

entity a functional equivalent

“WHAT IS THE

FUNCTION?”|


ORDINANCE OR RESOLUTION

“AN ACT OF

GREATER DIGNITY”|


Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 v. City of

Memphis; TN Court of Appeals

In 2013, Memphis passed a resolution to rename three city parks, including Nathan Bedford Forrest

Park, which was named by ordinance in 1899; SCV had raised money to place the marker at the left,

which was part of the basis for their lawsuit against Memphis

SCV argued that the park could not be renamed by resolution since it was originally named by

ordinance and it was permanent in natures, and that the City had delegated authority over parks to a

City department

Trial court granted summary judgment to Memphis, which the Court of Appeals affirmed

There was no evidence that the naming of a park was permanent

An action is only ultra vires where it fails to comply with statute or city charter—if more than one

method is available to accomplish action, city has discretion

City retained authority over parks through its Council

2/13/2018

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RLUIPA

Livingston Christian Schools v. Genoa Charter Township; US Sixth Circuit

LCS wanted to relocate to a better school facility and entered into a lease with an existing

church; the expansion of the existing church to include a school required an amendment to

the special use permit, which was denied and the school brought a RLUIPA suit

Issue was whether the Township’s denial imposed a substantial burden on LCS

District Court granted the Township’s MSJ, which the Sixth Circuit upheld

Declined framework from Living Water Church of God v. Charter Township of Meridian

Burden must be severe enough to be substantial—religious institutions aren’t exempt

automatically from all land use regulation

Factors: whether religious institution has feasible alternative location; plaintiff ’s own actions;

local government’s decision-making was arbitrary, capricious, or discriminatory

Declined to take alleged discrimination into account as a factor because the substantial

burden question must be answered first

Political boundaries are also irrelevant

“SELF-IMPOSED & NOT

SUBSTANTIAL BURDEN”|


TAXES

Metro Nashville v. Delinquent Taxpayers as Shown on the 2006 Real Property Tax Records; TN

Court of Appeals

Lucien Worsham’s property was sold at a tax sale and the buyer brought a suit to quiet title; the buyer prevailed at trial

and on appeal

Six years later, Worsham brought a Rule 60.02(3) motion, seeking to determine that the judgment is void based on lack

of personal jurisdiction

Metro argued that this issue had been litigated previously and the trial court agreed that the motion was barred on the

doctrine of res judicata

Court of Appeals upheld the outcome, but noted that res judicata (aka claim preclusion) was not the proper

preclusion doctrine and that collateral estoppel (aka issue preclusion) was the correct doctrine

Elements of collateral estoppel: (1) issue is identical to an issue raised in an earlier proceeding, (2) the issue was actual ly

raised, litigated, and decided on the merits, (3) the judgment in the earlier proceeding has become final, (4) that the party

against who the collateral estoppel is asserted was a party or in privity with party from earlier proceeding, and (5) the

party had a fair opportunity in the earlier proceeding

“PARSING OUT PRECLUSION”|


2/13/2018

11

WORKERS’ COMP

Jamie Jordan v. City of Murfreesboro; Supreme Court Special

Workers’ Compensation Panel

Plaintiff injured back while loading a wet sofa into a waste collection vehicle and he

verbally reported this to his supervisor; he then suffered three more injuries

Employer denied the claim, asserting that the low back pain was not suffered

within the scope of his work and that he did not provide requisite statutory notice

Two physicians testified—Fishbein and Glynn—and presented very different

portrayals of the plaintiff, but the trial court evaluated the testimony and chose to

give far less weight to one of the physicians

Ultimately, the panel found that the employer has failed to rebut Fishbein’s

impairment rating by clear and convincing evidence

“SOGGY SOFA”|


ZONING

Michael Cobble v. Greene County; TN Court of Appeals

The Moore family sought to build a carport on their property, which required a setback

variance—in their first application, they proposed to put the carport partially in right-of-way

and upon second application, they changed the position by seven feet

The applicant’s reasoning for needing the carport was that he had 6 cars already and he

travelled a lot for work and didn’t want his wife to have to go out to her car in the rain or

snow

The planner for Greene County used a lot of language from state law, noting that the yard

was hilly, much like the other yards in the neighborhood

The trial court upheld the variance approval, and the Court of Appeals reversed

“If every lot is exceptional, no lot is exceptional”

A desire to build a carport in itself does not generate grounds for a variance and the

hardship incurred here was self-imposed

“ HOW HARD IS IT

TO FIND A HARDSHIP?”|


2/13/2018

12

ZONING

Neighbors of Old Hickory v. Metro Nashville; TN Court of Appeals

In 2014, developers bought land to construct a rock quarry and concrete batching plant; developer received series of local

approvals, including a certificate of zoning compliance, a use and occupancy permit, and state permits

Neighborhood opposition mounted and Metro changed its zoning law to prohibit quarry activity at this particular location

Neighborhood group then sought declaratory judgment regarding the new zoning text

Trial court granted the defendants’ motion for summary judgment, relying on the Vested Property Rights Act and

ruling that the developer had a vested property right in its preexisting nonconforming use

“ PLAY IT CLOSE TO THE VEST”|


ATTORNEY GENERAL OPINIONS

AG OP. 17-37: Annexation,

growth plans, and

coordinating committees

AG OP. 17-44: Residential

design regulations


2/13/2018

13

WORTH A MENTION

Chuck’s Package Store, et al. v. City of Morristown;

TN Supreme Court

Under Tenn. Code Ann. § 67-1-901(a), retailers were

required to have paid under protest the disputed taxes

before filing suit

Because the retailers did not pay the taxes under protest,

they are not entitled to refunds

Doug Gordon filed an amicus brief for TMAA

Filed February 6, 2018; online here


https://stage.tba.org/tba/interspire/link.php?M=7918&N=2328&L=33528&F=H

by the numbers · 2/13/2018 6 contracts reitz v. city of mt. juliet; tn court of appeals plaintiff...

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