Opposition Brief — Cook v. McCullough

Ts Bpreme Court ale

~) A= FILED

No. 90-22 11) aye 30. to

—

; P—“JOSEPH F. SPANIOL,

tS

In THE

Supreme Court of the Wunited States

OcTosBEerR TERM, 1990

BeverRLY ANN Cook, CLAUD RICHARD Dory,

WENDELL L. SmitH, Jr., and LINDA SMITH WEsT,

Petitioners,

vs.

ARAMINTA MCCULLOUGH; C & N LEASING and RENTAL Co.,

Inc.; Jim Ep Ciary, Property Assessor of the Metropolitan

Government; Britt GARRETT, Trustee of Davidson County;

and MULTIMEDIA, INC. d/b/a THE NASHVILLE RECORD,

Respondents.

On Petition for a Writ of Certiorari

to the Tennessee Court of Appeals

BRIEF OF RESPONDEN7, MULTIMEDIA, INC.

|) d/b/a THE NASHVILLE RECORD IN OPPOSITION

= TO PETITION FOR A WRIT OF CERTIORARI

—s

— VALERIUS SANFORD

Lede (Counsel of Record)

J GULLETT, SANFORD, ROBINSON &

fae) MARTIN

er 230 Fourth Avenue, North

— Nashville, TN 37219-0757

— (615) 244-4994

—4 Attorney for Respondent,

Multimedia, Inc. d/b/a

ha The Nashville Record

DBD

| a) r=) St. Louis Law Printing Co., Inc., 13307 Manchester Road 63131 314-231-4477

QUESTION PRESENTED

Whether the Court should deny the petition for a writ of cer-

tiorari in this case on the ground that the federal constitutional

issues raised in the petition were not properly presented to the

Tennessee courts and have not been decided by the Tennessee

courts?

LIST OF PARENT AND SUBSIDIARIES

Multimedia, Inc. has no parent.

The following Illinois corporations are the only subsidiaries

of Multimedia, Inc. not wholly owned by Multimedia, Inc. or

its wholly owned subsidiaries:

Multimedia Cablevision of Alsip, Inc.

Multimedia Cablevision of Chicago Ridge, Inc.

Multimedia Cablevision of Harvey, Inc.

Multimedia Cablevision of Hometown, Inc.

Multimedia Cablevision of Lisle, Inc.

Multimedia Cablevision of Phoenix, Inc.

Multimedia Cablevision of South Holland, Inc.

Multimedia Cablevision of Villa Park, Inc.

TABLE OF CONTENTS

Page

eens catsedtsancedeadineds i

List of Parent and Subsidiaries...................... ii

Lec dc eeccce es hee ewse ee iv

Summary Statement of Respondent’s Position ........ |

ee eee ceca nie eeawhewencaves ae 2

UCSC let ll iedegessadaddesedensenceses 8

I. Federal Claims Must Have Been Adequately

Presented To, And Decided By, The State Courts . 8

Il. The Issues Which Petitioners Seek To Raise In This

Court Were Not Presented To, And Were Not

Passed Upon, By The Tennessee Courts ....... 4

III. Raising Constitutional Claims In Tennessee Courts 10

IV. The Applicability Of The Rules With Respect To

The Proper Presentation And Decision Of Con-

stitutional Claims By State Courts Is Particularly

Appropriate With Respect To Petitioners’ Due

Ee Cas Sh ak wna 66 60d 0d ke: 8-6 8 11

ede bames 13

TABLE OF AUTHORITIES

i Page

U.S. Constitution:

Fourteenth Amendment to the United States Consti-

A RS: FEE ean am anek NEI are eae ape 4,6,7

Tennessee Statutes:

es ED bi» 50.8 6.40.00:644544660005b050005 9

pg ot SS PPPerrrrTy iiadeaseeseasssnsssande 5,6

Cases:

Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71,

108 S.Ct. 1645, 100 L.Ed.2d 62 (1988) ........... 8,11

Bender v. City of Rochester, 765 F.2d 7 (1985) ........ 12

Board of Directors of Rotary Int’l. v. Rotary Club of

Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d

SR er etchuwkdns oases aekenseescesutsan 5

Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161,

ess och nnecuacdschecsceseses 11

City of Elizabethton v. Carter County, 204 Tenn. 452,

ED arch acsacecdacsuddcansss 10

Cook v. McCullough, 735 S.W.2d 464 (Tenn. App.

PO OE ee eT Per eT ToT Terre err eT 4,5,10

Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062

EN cn Gk ocean ak atACSOCRSSSCAD EKER SAUNA EES 9

Dement v. Kitts, 777 S.W.2d 33 (Tenn. App. 1989) .... 10

Dodd v. Barnes, 279 F.Supp. 291 (E.D. Tenn. 1967) ... 4

Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976), Rehear-

eo ke | rrerrrr rr errr re 10

Exxon Corp. v. Eagerton, 462 U.S. 176, 103 S.Ct. 2296,

Pee ee ES a who hon ntunncnssdsiacass 8

Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.

PE 6 0.05400500000d040senbd tein 8

Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978) .... 10

Lawrence v. Stanford, 655 S.W.2d 927 (Tenn. 1983) ... 10,11

Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77

SEED o0susacuadeadweulruseaunece 12

Mallicoat v. Poynter, 722 S.W.2d 681 (Tenn. App.

6 dnd ccunvedsadiceddanaecene eee 10

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47

Di EE Sch ska oekeeee ends cueaun tee 11

Presley v. Hanks, 782 S.W.2d 482 (Tenn. App. 1989)... 10

Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22

CD ohcscncndebhabaebdsdeeeckaes 8

Veach v. State, 491 S.W.2d 81 (Tenn. 1973)........... 10

Webb v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 68 L.Ed.

rok | Pere Peri er errr rrr rere 8

No. 90-222

In THE

Supreme Court of the United States

OctToser Term, 1990

BeverLy ANN Cook, CLAUD RICHARD Dory,

WeENDELL L. Smrtu, Jr., and LiInDA SMITH WEsrT,

Petitioners,

vs.

ARAMINTA MCCULLOUGH; C & N Leasino and RENTAL Co.,

Inc.; Jim Ep CLary, Property Assessor of the Metropolitan

Government; Bit Garrett, Trustee of Davidson County;

and Muttimepia, Inc. d/b/a THe NASHVILLE RECORD,

Respondents.

On Petition for a Writ of Certiorari

to the Tennessee Court of Appeals

BRIEF OF RESPONDENT, MULTIMEDIA, INC.

d/b/a THE NASHVILLE RECORD IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

SUMMARY STATEMENT OF RESPONDENT'S POSITION

The Respondent, Multimedia, Inc. d/b/a The Nashville

Record respectfully urges the Court to deny the petition for cer-

tiorari in this case on the ground that the federal constitutional

issues raised in the petition were not properly presented to the

Tennessee courts and have not been decided by the Tennessee

courts.

~—

The petition for certiorari does not correctly state the issues

before, or the holdings of, the Tennessee courts; omits the opi-

nion of the Tennessee Court of Appeals, which noted that the

Petitioners conceded that they had made no constitutional at-

tack prior to the limited remand of the case; assumes that the

identity and addresses of Petitioners were readily ascertainable,

when they were not; does not accurately reflect the evidence on

which the Tennessee courts based their decision that The

Nashville Record was a newspaper of general circulation suffi-

cient for the publication of tax sale notices in this case; and

misstates the Tennessee law with respect to the raising of con-

stitutional issues.

STATEMENT OF FACTS

For consideration of whether the writ of certiorari should be

granted, the following facts are controlling:

1. Neither the Complaint in Beverly Ann Cook, et al. vy.

William C. McCullough, et al. (Pet. App., A-25), nor the Com-

plaint in Beverly Ann Cook, et al. v. C & N Leasing and Rental

Co., Inc., et al. (Pet. App., A-29) raised, or even mentioned,

any constitutional issues, federal or state.

2. The two cases were consolidated. The original defendants

filed motions to dismiss for failure to state a claim on which

relief could be granted under Rule 12, Tennessee Rules of Civil

Procedure. Since matters outside the pleadings were con-

sidered, the trial court treated the motions as motions for sum-

mary judgment, and entered a memorandum granting the mo-

tions. Nowhere in that memorandum is any constitutional issue

considered, much less ruled upon. (Pet. App., A-39). The Find-

ings of Fact in the Memorandum do not reflect that the identity

and addresses of the Petitioners were readily ascertainable. For

example, the names of the devisees of the record owner, John S.

Edney, were stated in his will, but no findings were made as to

the ascertainability of their addresses (Pet. App., A-41); one of

—_ Po

his devisees, Lillian Edney, died intestate, and the letters of ad-

ministration did not disclose the identity of her heirs (Pet. App.,

A-41); and another devisee, Leona Edney, died testate and the

names of her devisees are shown in her will, but the ascer-

tainability of their addresses is not shown. (Pet. App., A-41,

42).

3. The Petitioners then appealed to the Tennessee Court of

Appeals, which affirmed the decision of the trial court. The

Court of Appeals, in its opinion, did not consider or rule upon

any constitutional issue. (Pet. App., A-1).

4. Petitioners then filed a petition to rehear in the Court of

Appeals alleging that the Court of Appeals failed to consider

their attack on the adequacy of notice in The Nashville Record,

which petition was overruled. (Pet. App., A-6).

5. The Petitioners then filed an application for permission to

appeal to the Tennessee Supreme Court, which granted the ap-

plication to ‘‘consider whether the Chancellor erred in holding

that the publication of notice of tax sale in The Nashville

Record was adequate notice to plaintiffs when there was no

evidence in the record on that issue and without permitting the

introduction of such evidence in a trial on the merits.”’ (Pet.

App., A-5). The Tennessee Supreme Court stated:

In his amended findings of fact and conclusions of law,

the Chancellor held that ‘‘Publication in the Nashville

Record constitutes adequate notice to all parties." The

record contains no evidence on the issue of adequacy of

notice and no proof was presented on the issue by either

side. The Chancellor cited no authority for his position.

We are of the opinion that the Chancellor should have per-

mitted proof on this issue and summary judgment was

therefore inappropriate.

(Pet. App., A-6).

=

The Court further held that it agreed with the decision of the

Court of Appeals on the issues that were addressed in its opi-

nion, but remanded the case to the trial court for further pro-

ceedings relative to the limited issue stated. (Pet. App., A-6).

6. On the remand to the trial court, this Respondent,

Multimedia, Inc. d/b/a The Nashville Record, was allowed to

intervene as a party defendant. Cook v. McCullough, 735

S.W.2d 464, 466-467 (Tenn. App. 1987) (Res. App., A-6).

7. Petitioners then filed motions for leave to amend their

Complaints in the trial court, raising for the first time allega-

tions as to the constitutionality of the statutory procedures for

tax sales under the Fourteenth Amendment to the United States

Constitution, and seeking to join the State Attorney General as

a party. This motion is quoted in Cook v. McCullough, 735

S.W.2d 464, 467-468 (Tenn. App. 1987) (Res. App. A-6-9).

8. The trial court denied the motion to amend (Cook v. Mc-

Cullough, at p. 468) (Res. App. A-9).

9. The Petitioners then filed an application for extraordinary

appeal to the Court of Appeals, presenting the following issue:

Whether the Chancellor properly overruled Plaintiffs’

only Motion to Amend the Complaints in these con-

solidated actions when the Amendment sought to raise

issues which were not addressed by the appellate courts on

a previous appeal and which the Chancellor had held, prior

to that appeal, were not raised in the trial court; when

some aspects of those issues pertain to a new defendant ad-

ded since the initial appeal; and when no prejudice could

result to Defendants from the timing of the Motion to

Amend?

(Cook v. McCullough, at p. 468) (Res. App. A-9-10).

10. The Court of Appeals stated, at page 468:

— po

Plaintiffs concede that, prior to the limited remand to

the Trial Court from the Supreme Court, no constitutional

attack was made upon the procedure employed in the tax

sales and the Attorney General of the State was not made a

party to these actions. (Res. App., A-10).

11. The Court of Appeals held that its prior decision, based

in part on Petitioners’ conceded failure to raise constitutional

issues, was the law of the case; that neither the trial court nor

the Court of Appeals had authority to expand the limitations

imposed by the Supreme Court on the remand; and affirmed the

denial of the amendment. (Cook v. McCullough, pp. 470-471)

(Res. App., A-12-13).

i2. The Petitioners then filed a Motion for Summary Judg-

ment in the trial court alleging that the tax notices did not con-

tain an adequate description of the properties and did not con-

tain the amount of the judgment for the delinquent taxes. The

trial court held that those issues were outside the limited scope

of the remand and denied the motion. (Pet. App., A-59).

13. The cases were then tried on the issue stated in the re-

mand. The trial court held; (i) that publication in The Nashville

Record satisfied the requirements of T.C.A. §67-2018; and (ii)

publication in The Nashville Record was constitutionally ade-

quate as a matter of due process, stating that Petitioners had

failed to prove that publication of tax sales in The Nashville

Record was constitutionally inadequate when compared to

publication in some other newspaper. (Pet. App., A-65).

14. The Petitioners then appealed to the Tennessee Court of

Appeals. The brief of this Respondent correctly stated the

issues properly before that court:

The Plaintiffs-Appellants (here ‘‘Plaintiffs’’) have not

correctly stated the issues tried in the Chancery Court, or

the decision of the Chancery Court on those issues; and,

on that premise Plaintiffs have not correctly stated the

— po

issues properly before this court. Accordingly, this Ap-

pellee, Multimedia, Inc. d/b/a The Nashville Record (here

**Nashville Record’’) restates the issues as follows:

1. Whether publication of notice in The Nashville

Record satisfied the requirements of then §67-2018 T.C.A.

(1976); and

2. Whether such publication, as opposed to publication

in some other medium, was constitutionally adequate as a

matter of Due Process under the Fourteenth Amendment

of the United States Constitution; and

3. Whether the Plaintiffs may properly raise issues on

appeal which expand the limitation of the issues previously

placed upon this case by the Tennessee Court of Appeals

and the Supreme Court of Tennessee.

(Res. App., A-17).

15. In its opinion, the Court of Appeals decided the issues as

posed by this Respondent. That court reviewed in detail the

evidence in the record concerning the nature of The Nashville

Record, including its contents, subscriber list, circulation, and

format; and the testimony of Dean Kelly Leiter of the Universi-

ty of Tennessee College of Communications, expressing the opi-

nion that The Nashville Record was a ‘‘newspaper’’ within the

applicable statute, and that publication in The Nashville Record

was as reasonable as any other method for the purpose of

reaching persons not to be found by service of process. (Pet.

App., A-11-17).

The Court of Appeals then held that The Nashville Record

was a “‘newspaper’’ within the applicable statute.

As to the due process issue, the court held:

There is no evidence in the record that publication in

some other medium would have better satisfied due pro-

cess than did publication in The Nashville Record. On the

PN. en

contrary, the evidence supports the conclusion that the

publication in The Nashville Record, as opposed to some

other medium, was the logical choice, because in 1978 it

was the sole medium used in Davidson County for the

publication of notices to creditors, notices of service of

process, notices of foreclosure or rotices of Chancery

sales, including tax sales.

(Pet. App., A-22)

The court further rejected Petitioners’ attempts to expand the

issues. (Pet. App., A-23).

16. The Petitioners then filed an application for permission

to appeal to the Tennessee Supreme Court, which was denied.

From the foregoing recitation, it is clear that the only due

process issue properly before, and determined by, the Tennessee

courts was, ‘‘Whether such publication, as opposed to publica-

tion in some other medium, was constitutionally adequate as a

matter of due process under the Fourteenth Amendment of the

United States Constitution.’’ (Res. App., A-17).

—

ARGUMENT

I. FEDERAL CLAIMS MUST HAVE BEEN ADEQUATE-

LY PRESENTED TO, AND DECIDED BY, THE

STATE COURTS.

**It is well settled that this Court will nct review a final judg-

ment of a state court unless ‘the record as a whole shows either

expressly or by clear implication that the federal claim was ade-

quately presented in the state system.’ Webb v. Webb, 451 U.S.

493, 496-497, 101 S.Ct. 1889, 1891-1892, 68 L.Ed.2d 392

(1981).”’

Board of Directors of Rotary Int’!. v. Rotary Club of Duarte,

481 U.S. 537, 107 S.Ct. 1940, 1948, 95 L.Ed.2d 474 (1987).

Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 108

S.Ct. 1645, 1650, 100 L.Ed.2d 62 (1988).

‘‘When ‘ “* ‘the highest state court has failed to pass upon a

federal question, it will be assumed that the omission was due to

want of proper presentation in the state courts, unless the aggriev-

ed party in this Court can affirmatively show the contrary.’ ”’ ’

Exxon Corp. v. Eagerton, 462 U.S. 176, 181, n. 3, 103 S.Ct. 2296,

2301, n. 3, 76 L.Ed.2d 497 (1983) (quoting Fuller v. Oregon, 417

U.S. 40, 50, n. 11, 94 S.Ct. 2116, 2123, n. 11, 40 L.Ed.2d 642

(1974) (quoting Street v. New York, 394 U.S. 576, 582, 89 S.Ct.

1354, 1360, 22 L.Ed.2d 572 (1969))).”’

Board of Directors of Rotary Int’l. v. Rotary Club of Duarte,

481 U.S. 537, 107 S.Ct. 1940, 1948, 95 L.Ed.2d 474 (1987).'

' For the purposes of denial of this petition, it is not necessary to

determine whether these rules are jurisdictional or prudential; see,

e.g., Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 108 S.Ct.

1645, 1651, 100 L.Ed.2d 62 (1988).

ca

Il. THE ISSUES WHICH PETITIONERS SEEK TO RAISE

IN THIS COURT WERE NOT PROPERLY

PRESENTED TO, AND WERE NOT PASSED UPON,

BY THE TENNESSEE COURTS.

The decisions of the highest state court to pass upon the

merits of the petitions are found in the first opinion of the Ten-

nessee Court of Appeals (Pet. App., A-1) and the third opinion

of the Tennessee Court of Appeals (Pet. App., A-7). Manifest-

ly, in neither opinion did the Court pass upon the claims

asserted by Petitioners here.

The first opinion made no mention of any constitutional

issue. The only constitutional issue decided in the third opinion

was whether publication in The Nashville Record as opposed to

publication in some other medium was constitutionally aae-

quate as a matter of due process. (Pet. App., A-22).

It is true on the remand to the trial court the Petitioners at-

tempted to amend their Complaints to raise issues similar to

those they seek to raise here. However, those claims were not

timely or properly asserted. As the Tennessee Court of Appeals

noted, the Petitioners conceded that prior to the limited remand

no constitutional attack was made and the Attorney General of

the State was not made a party to these actions.” The limita-

tions on the remand, excluding consideration of the claims these

petitioners now seek to assert, became the law of the case.

Thus, the conceded failure of Petitioners to raise these con-

stitutional issues in a timely and proper manner, resulted in their

not being considered in the first decision of the Tennessee Court

? T.C.A. §29-14-107(b) requires the Attorney General to be made a

party in proceedings involving the validity of a statute of statewide ef-

fect. That provision is mandatory, Cummings v. Shipp, 156 Tenn.

595, 3 S.W.2d 1062 (1928); and the Attorney General /; an indispen-

sable party, Dodd v. Barnes, 279 F.Supp. 291 (E.D. Tenn. 1967).

—~—

of Appeals and their being precluded from consideration on the

limited remand or the subsequent appeals.

There was nothing unusual, much less arbitrary, in the pro-

cedures followed by the Tennessee courts. Indeed, those pro-

cedures are common throughout the jurisdictions of this coun-

try. See, e.g., cases cited in Cook v. McCullough, 735 S.W.2d,

at pages 470-471.

Ill. RAISING CONSTITUTIONAL CLAIMS IN_ TEN-

NESSEE COURTS.

‘*Iit has long been the general rule that questions not raised in

the trial court will not be entertained on appeal and this rule ap-

plies to an attempt to make a constitutional attack upon the

validity of a statute for the first time on appeal unless the statute

involved is so obviously unconstitutional on its face as to ob-

viate the necessity for any discussion. City of Elizabethton v.

Carter County, 204 Tenn. 452, 321 S.W.2d 822 (1958); Veach v.

State, Tenn., 491 S.W.2d 81 (1973); Harrison v. Schrader,

Tenn. 569, S.W.2d 822 (1978); Dorrier v. Dark, Tenn., 537

S.W.2d 888, Rehearing 540 S.W.2d 658, (1976). Rule 36A

TRAP.”’ Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.

1983).

This rule is well settled in the Tennessee decisions; see, e.g.,

Presley v. Hanks, 782 S.W.2d 482, 490 (Tenn. App. 1989); De-

ment v. Kitts, 777 S.W.2d 33 (Tenn. App. 1989); and Mallicoat

v. Poynter, 722 S.W.2d 681 (Tenn. App. 1986).

The Tennessee courts properly did not consider the statutory

procedures attacked by Petitioners to be so obviously un-

constitutional as to obviate the necessity for any discussion.

Petitioners have cited no case so holding.

et ae oe

IV. THE APPLICABILITY OF THE RULES WITH

RESPECT TO THE PROPER PRESENTATION AND

DECISION OF CONSTITUTIONAL CLAiMS BY

STATE COURTS IS PARTICULARLY AP-

PROPRIATE WITH RESPECT TO PETITIONERS’

DUE PROCESS CLAIMS.

Due Process issues are particularly likely to require a factual

context.

**[I}dentification of the specific dictates of due process

generally requires consideration of three distinct factors:

First, the private interest that will be affected by the of-

ficial action; second, the risk of an erroneous deprivation

of such interest through the procedures used, and the pro-

bable value, if any, of additional or substitute procedural

safeguards; and finally, the Government’s interest, in-

cluding the function involved and the fiscal and ad-

ministrative burdens that the additional or substitute pro-

cedural requirement would entail.’’

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47

L.Ed.2d 18 (1976).

The policies underlying the requirement that federal issues be

properly presented and ruled upon by state courts are, thus,

particularly significant with respect to due process issues. Those

policies are, ‘‘First, comity to the states, and, second, a con-

stellation of practical considerations, chief among which is our

need for a properly developed record on appeal.’’ Bankers Life

and Cas. Co. v. Crenshaw, 108 S.Ct. at p. 1651; or, as stated in

Cardinale v. Louisiana, 394 U.S. 437, 439, 89 S.Ct. 1161, 1163,

22 L.Ed.2d 398 (1969), ‘‘Questions not raised below are those

on which the record is very likely to be inadequate, since it cer-

tainly was not compiled with those questions in mind.’”*

> Similar considerations underlie the rules followed by the Ten-

nessee Supreme Court in refusing to review constitutional issues not

raised in the trial court. Lawrence v. Stanford, 655 S.W.2d 927, 929

(Tenn. 1983).

ini

=>

In this case the absence of any factual record compiled with

these constitutional issues in mind is particularly crucial. Con-

sider, e.g., the facts developed in Bender v. City of Rochester,

765 F.2d 7, 11-12 (1985), involving the search of the surrogate

records in New York:

However, we note that an inquiry of this sort will not

necessarily identify the successors in interest of the deceas-

ed owner of property. If the decedent did not reside in the

same county where the property is located, the inquiry

would be fruitless because there would be no record about

the estate in the clerk’s office of the Surrogate Court of

that county. Even if the decedent resided in the same

county, however, the identity of the successors in interest

and the nature of their interests may not become clear until

probate proceedings are complete. Beneficiaries may have

conflicting claims, and, in some cases, their beneficiary

status may be initially unknown to themselves and to the

administrator. Moreover, though the burden of inspect-

ing records of the Surrogate’s Court is not heavy, it is a

task beyond the routine examination of land records that

was involved in Mennonite.

Tennessee, and its citizens, have a legitimate interest in

avoiding the uncertainties created by such uncertainties as to

claimed ownership of real property for the purpose of tax sale

notices. The requirement of advising the tax assessor of such

ownership claims is not unreasonable. See, e.g., Lehr v.

Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614

(1983), putative father not entitled to notice of adoption pro-

ceedings when he failed to register with Putative Father Registry

in accordance with statute. The failure of Petitioners properly

to raise their due process claims precluded the development of

the facts with respect to the interests involved in this process.

Moreover, as the Tennessee Court of Appeals stated, in 1978

The Nashville Record was ‘‘the sole medium used in Davidson

—

County for the publication of notices to creditors, notices of

service of process, notices of foreclosure or notices of Chancery

sales, including tax sales.’’ (Pet. App., A-22).

Thus, a decision holding that the publication procedures

followed in this case were unconstitutional would affect the

validity of thousands of transactions and the title to in-

numerable tracts of land. Tennessee, and other states, and their

citizens, have a highly significant interest in procedures protect-

ing the security of transactions and assuring the title of land. No

such interest should be jeopardized without a full review on a

complete record made for that purpose.

The failure of Petitioners to raise their due process claims in a

timely and proper manner precluded the development of such a

record. That failure should likewise preclude their attempts to

raise such issues in this Court.

CONCLUSION

For the reasons stated, this Court should deny the Petition

for a Writ of Certiorari to the Tennessee Court of Appeals.

Respectfully submitted,

Valerius Sanford

(Counsel of Record)

GULLETT, SANFORD,

ROBINSON & MARTIN

230 Fourth Avenue, North

P.O. Box 2757

Nashville, TN 37219-0757

(615) 244-4994

Attorney for Respondent,

Multimedia, Inc. d/b/a The

Nashville Record

decent

APPENDIX

APPENDICES

Table of Contents

A Opinion of the Court of Appeals, Middle Section,

filed April 16, 1987, Cook v. McCullough, 735

S.W.2d 464 (Tenn. App. 1987) .............55.5.

B Excerpt from the brief of Defendant-Appellee,

Multimedia, Inc. d/b/a The Nashville Record, in

the Court of Appeals, Middle Section, filed

I Mi aticsesvcdsvsaccasvicessess

Page

APPENDIX A

Beverly Ann COOK, Claud Richard Doty,

Wendell L. Smith, Jr., and Linda Smith West,

Plaintiffs-Appellants,

v.

Araminta McCULLOUGH, C & N Leasing and Rental Co.

Inc., Jim Ed Clary, Property Assessor of the Metropolitan

Government, Bill Garrett, Metropolitan Trustee, and

Multimedia, Inc., d/b/a the Nashville Record, Defendants-

Appellees.

Court of Appeals of Tennessee

Middle Section, at Nashville.

April 16, 1987.

Permission to Appeal Denied by

Supreme Court Aug. 3, 1987.

In consolidated actions to set aside tax deeds, property

owners filed application for extraordinary appeal. Order of the

Chancery Court of Davidson County, Irvin H. Kilcrease, Jr.,

Chancellor, denied motion to amend complaints. The Court of

Appeals, Todd, P.J. (M.S.), held that property owners were not

entitled to amend complaint to add issues going beyond limita-

tion placed by Supreme Court upon remand.

Affirmed and remanded.

OPINION

TODD, Presiding Judge, Middle Section.

This venerable controversy is now on its second excursion

through the appellate process. Since previous appellate rulings

are material to the present appellate issue; a review of previous

procedure is necessary.

On January 21, 1982, the plaintiffs filed this suit seeking to

set aside a tax deed executed on January 25, 1979, to defendants

— < ee

William C. and Araminta McCullough as a result of a tax sale to

satisfy delinquent taxes upon the described property. A similar

suit by plaintiffs relating to the tax sale of another tract to C &

N Leasing and Rental Co. was consolidated with the first men-

tioned suit.

On September 22,° 1982, the Trial Judge entered an order

dismissing both suits. Upon appeal to this Court, an opinion

was filed on October 18, 1983, stating:

The appellants filed separate actions in the court below

to invalidate the sale of two tracts of land sold at a tax saie

on January 25, 1979. The complaint alleged that John S.

Edney, the record owner of the parcels in question, died on

March 14, 1969 and left all his property by will to his four

sisters. The will was duly probated in Davidson County,

Tennessee. The appellants take their interest in the prop-

erty by will or intestate succession through one of the four

sisters. Since the appellants were not served with process in

the tax sale nor had any other notice of sale, they alieged

that the sale was void as to them.

. . . The defendants filed answers or motions to dismiss

and the cases were consolidated for disposition. Since the

basis for the motions to dismiss was that the complaint

failed to state a cause upon which relief could be granted

and matters outside the pleadings were considered by the

court, the motions were treated as motions for summary

judgment pursuant to Rule 12.02 of the Tennessee Rules of

Civil Procedure. The lower court granted the motions and

dismissed the complaints. By agreement the court filed

findings of fact and conclusions of law.

It is the position of the appellants that since the will of

John Edney was of record in Davidson County, it was

possible for the taxing authorities to ascertain the present

owners of the property in order that they might be given

notice of the suit to collect delinquent taxes.

—

The defendants all contend that the burden is on the

property owner to notify the tax assessor of his or her

interest in the property in order that notice may be given.

In this respect the defendants rely on T.C.A. §67-2018

which deals with the question of notice to the present

owner. That section provides:

In the event of a sale under a decree of the court,

the property shall be advertised in one (1) sale notice,

which notice shall set out the names of the owners of

the different tracts of parcels of land and a concise

description of the property and the amount of judg-

ment against each defendant. Said advertisement may

“be by publication in a newspaper as required by law,

or by printed handbills as the court may decree.

However, notice of the sale shall be sent by registered

return receipt mail to the last known address of the

present owner of any real property if the delinquent

taxes for which the sale is to be conducted were

assessed on the real property when owned by a prior

owner of the real property.

The term ‘‘last known address of the present

owner’’ shall be defined as the address of the owner

of said property on record in the tax assessor’s office

of each county.

It shall be the responsibility of the property owner

to register his name and address with the tax assessor

of the county in which the land lies.

The property owner shall bear the cost of the

registered return receipt mail and if the said registered

mail is not claimed within twenty (20) days following

mailing, the county may proceed as though the notice

had been received.

—-

It seems obvious that the above section dealing with a

notice to be given in a suit for the sale of real property for

taxes puts the burden on the present owner of the property

to register his name with the tax assessor so that he may get

notice in the event of a sale.

The appellants contend that since the will of John Edney

was of record, the plaintiffs became the ‘‘record owners’’

and were entitled to notice without more. We cannot ac-

cept that interpretation of the statute. We think the statute

says the opposite: The owner is required to register his

name and address with the tax assessor rather than the tax-

ing authorities being required to search the records for

evidence of ownership. This result is consistent with the re-

cent case of Morris v. Beard, Tenn.App. (Filed in Knox-

ville February 12, 982).

The action to sell real estate for delinquent taxes is an ac-

tion in rem. T.C.A. §67-1804. Although persons having an

interest in property which is the subject of an in rem pro-

ceeding are entitled to notice, the notice required is ‘‘the

best notice possible under the circumstances.’’ Mullane v.

Central Hanover Bank and Trust Co., 339 U.S. 306, 70

S.Ct. 652, 94 L.Ed. 865 (1950); Baggett v. Baggett, 541

S.W.2d 407 (Tenn. 1976). In this case, since the appellants’

interest was not on record in the tax assessor’s office as re-

quired by the statute, they were not entitled to any more

notice than that given them by publication in the

newspaper.

For all of these reasons the decree of the Chancellor is

affirmed.

Upon application for permission to appeal, on October 18,

1983, the Supreme Court entered the following order:

On considering the application for permission to appeal

and briefs filed in this case and the entire record, the ap-

—_ oe

plication of Beverly Ann Cook, et al, is granted for con-

sideration of appellants’ contention that the chancellor

erred in holding that the publication of notice of tax sale in

the Nashville Record was adequate notice to the appellants

without any evidence in the record on that issue and

without permitting the introduction of such evidence in a

trial on the merits.

Upon considering said limited appeal, on November, 19, 1984,

the Supreme Court filed an opinion which stated:

In his amended findings of fact and-conclusions of law,

the Chancellor held that ‘‘Publication in the Nashville

Record constitutes adequate notice to all parties.’’ The

record contains no evidence on the issue of adequacy of

notice and no proof was presented on the issue by either

side. The Chancellor cited no authority for his position.

We are of the opinion that the Chancellor should have per-

mitted proof on this issue and summary judgment was

therefore inappropriate.

We agree with the decision of the Court of Appeals on

the issues that were addressed in its opinion. However, the

issue Of the adequacy of notice was not addressed,

although it had been brought to the attention of the Court

of Appeals in Plaintiff’s brief and in Plaintiff’s petition to

rehear. We therefore remand the case to the trial court for

further proceedings relative to the notice issue. Costs of

this appeal shall be taxed to the Defendants.

The judgment of the Supreme Court entered the same date

stated:

This cause coming on to heard upon the entire record

from the Court of Appeals, Middle Section at Nashvilie, a

limited application for permission to appeal having hereto-

fore been granted to consider whether the Chancellor erred

in holding that the publication of notice of tax sale in the

ie a oe

Nashville Record was adequate notice to Plaintiffs when

there was no evidence in the record on that issue and

without permitting the introduction of such evidence in a

trial on the merits; and upon consideration thereof, this

Court is of opinion that the case should be remanded for

further proceedings relative to the notice issue.

In accordance with the opinion filed herein, it is,

therefore ordered and decreed by this Court that the case is

remanded to the Chancery Court of Davidson County for

further proceedings relative to the notice issue, and for the

collection of costs accrued below.

Costs of appeal will be paid by A.aminta McCullough,

C & N Leasing & Rental Co., Inc., Jim Ed Clary, Property

Assessor of the Metropolitan Government, and Bill Gar-

rett, Trustee of Davidson County, for which execution

may issue if necessary. 1/19/84.

Upon remand, an agreed order was entered permitting

Multimedia, Inc., d/b/a The Nashville Record to intervene as a

party defendant.

On February 28, 1986, plaintiffs filed the following motion in

the Trial Court:

Pursuant to Rule 15 of the Tennessee Rules of Civil Pro-

cedure, Plaintiffs respectfully move the Court to permit

them to amend their Complaints in these consolidated ac-

tions in the following respects:

1. Each Complaint is amended by adding the following

additional paragraphs to the allegations:

17. Plaintiffs further allege that the statutes govern-

ing delinquent taxpayers actions, including T.C.A.

§67-5-2424, 67-5-2415, 67-5-2501, and 67-5-2502,

formerly § 67-2012 and 67-2018, have been inter-

aay, po

preted to permit the filing of actions to sell Plaintiffs’

Properties (as defined in paragraph 4 of each Com-

plaint), the prosecution of such actions, the entry of

decrees ordering the sale for delinquent taxes, the

publication of tax sale notices, and the sale of the

Properties, all without any actual or constructive ser-

vice upon any of Plaintiffs or any of their

predecessors who owned an interest in the Properties

at the time their suits were instituted, or any notice of

any kind whatsoever that their Properties were being

sold for delinquent taxes, because Plaintiffs and their

predecessors in title had not notified the Tax Assessor

of Davidson County of their ownership interest in the

Properties. Plaintiffs further aver that no actual or

constructive service was ever attempted for any of

Plaintiffs, or any of their predecessors who owned an

interest in the Properties when the actions to sell

those Properties were commenced, even though their

ownership was a matter of public record; the only ser-

vice attempted was for a man who had died and

whose Will had been probated over eight years prior

to the time the actions to sell the Properties were

filed.

18. Plaintiffs aver that the institution of said

actions to sell the Properties, the prosecution of such

actions, the entry of decrees ordering the sale of the

Properties, and the sales of those Properties for delin-

quent taxes, without any actual or constructive ser-

vice of process, or any notice to, any of Plaintiffs, or

their predecessors in title who owned an interest in the

Properties at that time, and any state statute, in-

cluding T.C.A. §§ 67-5-2414, 67-5-2415, 67-5-2501,

and 67-5-2502, permitting delinquent taxpayers ac-

tions to be conducted in this manner without service

of process or notice, violate the Due Process Clause

— As —

and Equal Protection Clause of the Fourteenth

Amendment to the Constitution of the United States

and Article I, Section 8 of the Tennessee Constitu-

tion. Plaintiffs further aver that these constitutional!

requirements have been recognized by both the Ten-

nessee Supreme Court (in Marlowe vs. Kingdom Hall

of Jehovah’s Witnesses, 541 S.W.2d 121 (Tenn.

C.St.1976)) and the United States Supreme Court (in

Mullane v. Central Hanover Bank & Trust, 339 U.S.

306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

19. Plaintiffs aver that since the actions to sell their

Properties and the sales of those Properties were con-

ducted in violation of provisions of the United States

and Tennessee Constitutions, said sales were void,

and that title should be divested out of Defendants

McCullough and C & N Leasing & Rental Co., Inc.

and revested in Plaintiffs.

20. W.J. Michael Cody is the Attorney General and

Reporter of the State of Tennessee and is made a

party to this action pursuant to T.C.A. § 29-14-107,

since this action questions the constitutionality of cer-

tain Tennessee statutes.

2. The prayers for relief in each Complaint are amended

to read as follows:

1. That the Court hold that the tax sales of Plain-

tiff’s properties were void because they were con-

ducted in violation of the Due Process and Equal

Protection Clauses of the Fourteenth Amendment to

the Constitution of the United States and in violation

of the provisions of Article I, Section 8 of the

Tennessee Constitution, and because the tax sales

notices did not comply with statutory and constitu-

tional requirements.

=

2. That the Court, upon payment to Defendants C

& N Leasing & Rental Co., Inc. and McCullough of

such amounts as may be legally reimbursed to them,

divest title to the Properties in the proportions set

forth in paragraph 10 of each Complaint.

3. That the Court assess the costs of this action

against Defendants.

4. That the Court grant Plaintiffs such other and

further relief as may be appropriate upon the

evidence produced herein.

In support of this Motion, Plaintiffs file the attached

Memorandum Brief.

On March 14, 1986, said motion was overruled by the follow-

ing order:

This cause came to be heard before the Honorable Irvin

H. Kilcrease, Jr., Chancellor, on the Plaintiffs’ Motion to

Amend their Complaints in these consolidated actions, and

after consideration of Plaintiffs’ Motion, the record in

these consolidated actions, the arguments of counsel and

the law of the case as heretofore set out by this Honorable

Court, the Court of Appeals of Tennessee, and the

Supreme Court of Tennessee, this Honorable Court has

determined that the allegations sought to be included by

Plaintiffs’ in their Motion to Amend are barred by the law

of the case.

On March 27, 1986, plaintiffs filed a ‘‘motion to reconsider’’

(which is not provided for in T.R.C.P.).

On April 7, 1986, said ‘‘motion to reconsider’’ was overruled

and application for permission to appeal was denied.

On October 2, 1986, plaintiffs filed an application for ex-

traordinary appeal from the order entered on March 14, 1986,

overruling plaintiff’s motion to amend.

— A-10 —

On November 7, 1986, this Court granted the extraordinary

appeal which is the subject of this opinion.

In this appeal, plaintiffs present the following issue:

Whether the Chancellor properly overruled Plaintiffs’

only Motion to Amend the Complaints in these con-

solidated actions when the Amendment sought to raise

issues which were not addressed by the appellate courts on

a previous appeal and which the Chancellor had held, prior

to that appeal, were not raised in the trial court; when

some aspects of those issues pertain to a new defendant ad-

ded since the initial appeal; and when no prejudice could

result to Defendants from the timing of the Motion to

Amend?

Plaintiffs concede that, prior to the limited remand to the

Trial Court from the Supreme Court, no constitutional attack

was made upon the procedure employed in the tax sales and the

Attorney General of the State was not made a party to these ac-

tions.

[1] Plaintiffs insist, however, that the agreed order permitting

intervention of Nashville Record as a party defendant opened

the door to adding additional issues beyond that stated by the

Supreme Court in its remand. This Court does not agree

because the intervention of the Nashville Record as a party

defendant added nothi ug to the issues stated in the remand. The

answer filed by said defendant does state:

18. The Nashville Record as a forum for the publication

of the Order of Publication and the Notice of Sale fully

satisfied the requirements of the United States and Ten-

nessee Constitutions and all laws of the State of Tennessee.

19. Plaintiffs are estopped from claiming that The

Nashville Record was not a proper forum for the

publication of the Order of Publication or the Notice of

Sale. Plaintiffs claim the property at issue as heirs of the

———————————

= fil —

estates of Leona Edney and Jessylea Edney Smith, yet

both estates utilized The Nashville Record to publish

legal notice to creditors. The Plaintiffs, Wendell L.

Smith, Jr., Beverly Ann Cook and Linda Smith West,

moreover, were Co-Administrators of the estate of

Jessylea Edney Smith. Wendell L. Smith, Jr. was also

the Executor of the estate of Leona Edney. The Plain-

tiffs, therefore, are estopped from asserting that The

Nashville Record is an improper forum for the publica-

tion of notices when they have simultaneously claimed

the benefits of publication in that newspaper.

However, the quoted allegations are merely assertions of fact

in support of the Nashville Record as an appropriate medium

for the publication of the notices herein.

The action of the Supreme Court approved and affirmed the

conclusion and judgment of this Court that, by failure to

register their names as owner/taxpayers of the subject property,

plaintiffs forfeited the right to notice of the tax suit and of tax

sale. However, plaintiffs would have standing to question the

adequacy of the notice to the owner on record with the tax

assessor. This being true, the limited purpose of the issue on re-

mand (adequacy of published notice) was to ascertain whether

the publication in the Nashville Record was adequate notice to

the taxpayer (the record owner, John S. Edney, deceased) of the

pending action and to the public at large that the property was

to be sold for taxes.

[2] The amendment offered by plaintiffs first asserts that

they, as owners of record, were entitled to actual or constructive

notice of the tax sale. This Court has held to the contrary, and

the Supreme Court has affirmed.

The proposed amendment also asserts that the lack of actual

or constructive notice to plaintiffs ‘‘or their predecessors in title

who owned a interest in the Properties at that time’’ resulted in

a violation of the Fourteenth Amendment to the Constitution of

Nee

— A-12 —

the United States and Article I, Section 8 of the Constitution of

Tennessee, citing Marlowe v. Kingdom Hail of Jehovah's

Witnesses, Tenn., 541 S.W.2d 121 (1976) and Mullane v. Cen-

tral Hanover Bank and Trust, 339 U.S. 306, 70 S.Ct. 652, 94

L.Ed. 865 (1950). Although the constitutional question was not

expressly pled in former pleadings, and expressly excluded from

the Chancellor’s first decision, the opinion of this Court cited

Mullane v. Central Hanover Bank and Trust Co., supra, in

holding plaintiffs were entitled to no more notice than ‘‘the best

possible under the circumstances.’’

In the plaintiffs’ application to the Supreme Court for per-

mission to appeal from the former decision of this Court, plain-

tiffs’ issues were stated as follows:

(1) Whether property can be sold to pay delinquent taxes

without any services of process, either actual or construc-

tive, upon the record owner of that property when that

owner has failed to notify the Tax Assessor of his owner-

ship interest, in accordance with T.C.A. § 67-2018.

(2) Whether the Chancellor properly dismissed Plaintiff's

Complaints for failure to state a claim upon which relief

could be granted despite uncontradicted evidence that the

tax sale auction notices failed to comply with statutory and

constitutional requirements and properly held that

publication in The Nashville Record was adequate without

the benefit of any evidence in the record and without giv-

ing Plaintiffs the opportunity to introduce evidence to at-

tack the adequacy of such publication.

The action of the Supreme Court, cited above, rejected the at-

tack upon the decision of this Court that plaintiffs were not en-

titled to notice as property owners. By its limited remand for an

evidentiary hearing upon the adequacy of the Nashviile Record

publication, the Supreme Court undoubtedly included Con-

stitutional and statutory provisions as standards for adequacy

of the notice to “‘record owners’’, but not as to ‘‘non record

owners’’, as these plaintiffs have been conclusively held to be.

lean

— A-13 —

In summary, the holdings of this Court, as affirmed by the

Supreme Court, and the holding of the Supreme Court as to

limit of remand constitute the law of the case, foreclosing and

excluding any complaint, constitutional or otherwise, as to the

omission of the names of plaintiffs from the tax sale pro-

ceedings or any notices pursuant thereto. National Life & Acc.

Ins. Co. v. Morrison, 179 Tenn. 29, 162 S.W.2d 501 (1942); Life

& Cas. Ins. Co. v. Jett, 175 Tenn. 295, 133 S.W.2d 997 (1939);

Fields v. Gordon 33 Tenn.App. 465, 232 S.W.2d 320 (1948);

Securities Investment Co. v. White 19 Tenn. App. 540, 91

S.W.2d 581 (1935). On the other hand, the remand by the

Supreme Court appears to leave open any other questions of

fact or law relating to the adequacy, constitutional, statutory,

or otherwise, of the notice which was published. That is, the

Trial Court is free to hold that the notice was inadequate for any

reason except that plaintiff’s names were omitted therefrom.

The amendment offered by plaintiffs was in part in contradic-

tion of the law of the case and otherwise was unnecessary to the

execution of the remand by the Supreme Court.

[3] Neither the Trial Judge nor this Court has authority to ex-

pand the limitation placed by the Supreme Court upon a

remand.

The foregoing is supported without dissent by authority from

other jurisdictions. In 5-B C.J.S., Appeal and Error § 1969(5),

the text states:

The pleadings may not be amended after the cause has

been remanded for a restricted purpose.

In State v. Up-to-Date Shoe Repairing Co., 178 La. 1068, 152

So. 906 (1934), the trial court dismissed the suit of the State to

collect an occupational tax on the basis of a claimed exemption.

On appeal, the Supreme Court disallowed the exemption,

reversed the dismissal and remanded for ascertainment of the

amount of tax due. The Trial Court overruled a motion of

aaa

— Ad

defendant to amend to present a constitutional question and

rendered judgment against the defendant who appealed. On a

second appeal, the Supreme Court affirmed and said:

The trial judge was clearly correct in refusing to pass

upon the plea of unconstitutionality filed by defendant

after the case had been remanded to the district court. The

case was remanded solely for the purpose of permitting

plaintiff to offer evidence to sustain the state’s demand.

And it is well settled that no new issue can be raised after a

case has been remanded by the appellate court for the

restricted purpose of admitting evidence on a particular

issue of fact. Stark v. Burke, 9 La.Anno. 344; Jn re Quaker

Realty Co., 127 La. 208, 53 So. 526; Lehman Dry Goods

Co. v. Lemoine (On Rehearing), 129 La. 382, 56 So. 324;

Davis v. New Orleans Public Belt R.R., 159 La. 431, 105

So. 421.

In Stark v. Burke, which was expressly approved in

Lehman Dry Goods v. Lemoine, Slidell, C.J., speaking for

the court, well said:

‘*The time of a court of justice should not be occupied

with determining a cause on the general merits, only to

reach the fruitless result of setting aside its decree, not

because it is erroneous in the case presented, but because

the litigant desires to present a new question which he

might have presented before.”’

In Stolp v. Reiter, 195 Minn. 372, 263 N.W. 118 (1935)

plainiff sued to recover his part of the proceeds of a sale of fur-

niture by defendant. After judgment and appeal, the Supreme

Court remanded for further hearing upon the issue of portion

of the purchase price of the furniture paid by plaintiff. Upon

appeal from the second judgment, plaintiff complained that, on

remand the trial court had refused to allow plaintiff to amend to

demand a full accounting of all his partnership transactions

with defendant. The Supreme Court affirmed on the ground

—

that the proposed amendment went beyond the scope of the

limited remand.

In Holcomb v. McClure, 217 Miss. 617, 64 So.2d 689 (1953)

plaintiff sued for damages for deficiency in quantity of realty

purchased from defendant. After judgment for plaintiff and

appeal, the Supreme Court affirmed as to liability and remand-

ed for a new trial on damages alone. After judgment on re-

mand, defendant appealed, arguing that the previous affir-

mance of liability by the Supreme Court was erroneous. The

Supreme Court rejected the argument and said:

Without further discussion of the cases, we will say that

the rule in this State is that the law of the case as estab-

lished on appeal will normally and ordinarily control on

later trials and appeals of the same case involving the same

issues and facts. 64 So.2d at 691.

Also in Holcouch v. McClure, the defendant complained on

appeal of the refusal by the trial court on remand to allow

defendant on remand to amend his answer and to file a cross bill

to allege mutual mistake and estoppel. The Supreme Court

held: ~

. . . The facts which were the basis for the proposed

amendment and cross-bill were before the chancellor on

the first trial, and he so recognized in his opinion on the

second trial when he stated: ‘‘all such matters grew out of

the facts tried before this court on the former hearing. The

defendants elected to defend the cause without raising this

defense and they are now bound by such election.’’ The

chancellor applied the law of the case and refused to allow

the amendments. He was correct in so doing, as appellants

had no right to reopen the question of liability after this

Court had affirmed on liability and remanded the case for

hearing on the issue of damages alone. Appellants could

not indirectly accomplish this result by filing modified

pleadings based on the original facts and circumstances

— A-16 —

which had been passed upon by the chancery court and by

this Court.

In Albuquerque Broadcasting Co. v. Bureau of Revenue, 54

N.M. 133, 215 P.2d 819 (1950) the New Mexico Supreme Court

held that, where the Supreme Court had remanded for deter-

mination of a particular amount, it was reversible error for the

trial court to permit plaintiff to amend its complaint and try the

entire case anew in contravention of the appellate opinion which

was the law of the case.

To the same effect are Consolidated Cut Stone Co. v. Seiden-

bach, 189 Okl. 128, 114 P.2d 480 (1941); Enterprise Garnetting

Co. v. Forcier, 69 R.I. 455, 35 A.2d 1 (1943) and Howell v.

Walker, 126 Ark. 197, 189 S.W.2d 1058 (1916).

The order of the Trial Court is affirmed. The cause is

remanded for further proceedings consistent with the opinion

and order of the Supreme Court. Costs of this appeal are taxed

against the piaintiffs.

Affirmed and remanded.

LEWIS and CANTRELL, JJ., concur.

nn ein

a A-17 ~~

APPENDIX B

THE ISSUES PRESENTED FOR REVIEW

The Plaintiffs-Appellants (here ‘‘Plaintiffs’’) have not cor-

rectly stated the issues tried in the Chancery Court, or the deci-

sion of the Chancery Court on those issues; and, on that

premise Plaintiffs have not correctly stated the issues properly

before this court. Accordingly, this Appellee, Multimedia, Inc.,

d/b/a The Nashville Record (here ‘‘Nashville Record’’) restates

the issues as follows:

1. Whether publication of notice in The Nashville Record

satisfied the requirements of then §67-2018 T.C.A. (1976); and

2. Whether such publication, as opposed to publication in

some other medium, was constitutionally adequate as a matter

of Due Process under the Fourteenth Amendment of the United

States Constitution; and

3. Whether the Plaintiffs may properly raise issues on appeal

which expand the limitation of the issues previously placed upon

this case by the Tennessee Court of Appeals and the Supreme

Court of Tennessee.