Opposition Brief — Davis v. Davis

5

seeks, inter alia to compel Mrs. Davis to abandon her

claim and in the alternative to recover from Mrs. Davis in

Florida any amount that she might receive from the

decedent’s estate in Tennessee. Petitioners have been

enjoined by the Probate Court of Davidson County, Ten-

nessee, from pursuing their Florida action while the

petition is being reviewed by this Court. Resp. App. E-3 to

E-4. Mrs. Davis believes there is absolutely no merit to the

action, nor even the right of Petitioners to bring it in

Florida. However, the Probate Court has refused for now

to order Petitioners to withdraw the Florida complaint.

Resp. App. E-4. Meanwhile, Mrs. Davis filed a motion on

September 26, 2005 seeking an indefinite extension of

time to file an answer. Resp. App. F-1. At the date of

submission of this brief, the Florida Circuit Court has not

yet ruled. Thus, there are pending actions in two state

courts involving the dispute between Petitioners and Mrs.

Davis over the distribution of the Tennessee estate of the

decedent.

REASONS WHY THE PETITION

SHOULD BE DENIED

THE JURISDICTIONAL REQUIREMENTS OF

28 U.S.C. § 1257(a) HAVE NOT BEEN SATIS-

FIED

Under 28 U.S.C. § 1257(a), Supreme Court review of

state court decisions is available only with respect to

“[flinal judgments or decrees rendered by the highest court

of a State in which a decision could be had ... .” See also

Florida v. Thomas, 532 U.S. 774, 777 (2001); Duquesne

Light Co. v. Barasch, 488 U.S. 299, 306 (1989). As this

Court stated in Jefferson v. City of Tarrant, 522 U.S. 75, 81

(1997) (Ginsburg, J.), “the finality rule ‘is not one of those

technicalities to be easily scorned.’ It is an important

factor in the smooth working of our federal system.” The

6

state court decision can only be reviewed if it is final in

two respects: “it must be subject to no further review or

correction in any other state tribunal; it must also be final

as an effective determination of the litigation and not of

merely interlocutory or intermediate steps therein. It must

be the final word of a final court.” Id. See also Market St.

Ry. Co. v. Railroad Comm’n, 324 U.S. 548, 551 (1945). The

Court will not “anticipate a question of constitutional law

in advance of the necessity of deciding it” and will not

“decide questions of a constitutional nature unless abso-

lutely necessary to a decision of the case.” Ashwander v.

Tennessee Valley Authority, 297 U.S. 288, 346-47 (1936)

(Brandeis, J., concurring).

In the present case, Petitioners prematurely seek

review by this Court. There are five important grounds for

concluding that the finality rule of 28 U.S.C. § 1257(a) has

not been satisfied.

A. Petitioners Have on Multiple Occasions

Asserted in Writing That Mrs. Davis’ Claims

Have Not Yet Been Finally Resolved

Shortly before filing their petition in this Court,

Richard Bird, counsel for Petitioners, wrote on June 28,

2005, in a letter to Mrs. Davis’ counsel}:

In response to your letter of May 17, 2005 and

the more recent letters, we do not agree that the

claims of Dorothy Davis are finally resolved in

her favor. This response and the information fur-

nished are without waiving any rights, claims,

defenses, setoffs, counter-claims or other actions

and recourses available to the Executors for the

benefit of the Estate.

Resp. App. A-1 (emphasis added).

Mr. Bird reiterated Petitioners’ stance in another

letter dated July 20, 2005: “As I have advised in previous

7

correspondence, it is not considered that the claims of

Dorothy Davis against the estate are finally resolved.”

Resp. App. B-1.

This Court should take Petitioners’ written conces-

sions as to the lack of finality at face value. Petitioners

clearly believe that they have “rights, claims, defenses,

setoffs, counter-claims or other actions~and recoveries

available” which could only be raised in state court and

not before this Court. To date they have demonstrated

every intention of pursuing remaining avenues in state

court, as is evidenced by the recent filing of a complaint in

Florida Circuit Court.

B. The Controversy Is Still Being Litigated in

the State Courts of Florida and Tennessee

On July 19, 2005, only ten days before filing their

petition in this Court, Petitioners filed a complaint in the

Circuit Court for the Fifteenth Judicial Circuit In and For

Palm Beach County, Florida. Resp. App. D-1 to D-9. The

complaint sets forth counts for money damages, specific

performance, and declaratory judgment. The prayer for

relief requests a determination by the court (i) that the

antenuptial agreement is valid and enforceable, (ii) that

Mrs. Davis has no right to pursue her statutory rights in

Tennessee, (iii) that she be ordered to execute a waiver of

all such rights and dismiss her “pending” Tennessee

claims, and (iv) that if Mrs. Davis recovers in Tennessee

that she be required to turn over to Petitioners monetary

damages “in the amount of [her] recovery for elective

share, homestead, exempt property, and a years’ [sic]

support allowance.” Jd. at D-9.

~ In the event the Florida court were to rule in Petition-

ers’ favor, the practical consequence would be the denial of

the Tennessee statutory rights that Mrs. Davis claims.

Were this to occur, Petitioners would not require review by

8

this Court. On the other hand, Mrs. Davis might well

challenge the jurisdiction of the Florida court and also

raise a host of procedural and substantive arguments,

including the question pretermitted by the Tennessee

Court of Appeals as to whether she signed the antenuptial

agreement under duress. Pet. App. A-15. Mrs. Davis might

eventually petition this Court with her own Full Faith and

Credit claim, although it would be of a very different sort

from the one being asserted now by Petitioners.

On the other hand, if Petitioners were barred from

pursuing their claims in Florida by the Tennessee courts,

which exercise supervisory authority over them, or if

Petitioners were allowed to proceed but then lost in the

Florida courts, they could at that point petition this Court

- and raise the very same federal question they are pres-

ently raising. There might be finality at that time, unlike

now. Accordingly, this Court should not grant the petition

prematurely when the ultimate shape of the litigation and

the nature of the decisive federal question is not yet clear.

C. When a Decision of a Lower State Court Is

Reversed and Remanded for Proceedings

Consistent with the Opinion, as in This

Case, the State Court Judgment Is Not Yet

Final

The Tennessee Court of Appeals reversed the sum-

mary judgment granted by the Probate Court and re-

manded “for further proceedings consistent with this

opinion.” Pet. App. A-15. Accordingly, the judgment of the

Court of Appeals is not final for purposes of the Supreme

Court’s jurisdiction under 28 U.S.C. § 1257(a). See, e.g.,

Brotherhood of Locomotive Firemen v. Bangor & Aroon-

stock R.R. Co., 389 U.S. 327, 328 (1967) (“because the

Court of Appeals remanded the case, it is not yet ripe for

review by this Court”). As was previously discussed, to be

Ye ee et a Ele aR

9

final, a judgment must be final in two respects: “it must be

subject to no further review or correction in any other

state tribunal; it must also be final as an effective deter-

mination of the litigation and not of merely interlocutory

or intermediate steps therein. It must be the final word of

the final court.” Jefferson v. City of Tarrant, 522 U.S. 75,

81 (1997) (quoting Market Street Ry. Co. v. Railroad

Comm’n, 324 U.S. 548, 551 (1945)). See also Collins uv.

Miller, 252 U.S. 364, 370 (1920) (the judgment “should be

final not only as to all the parties, but as to the whole

subject-matter and as to all causes of action involved”).

The dispute between Petitioners and Mrs. Davis

simply does not meet these criteria. As has been discussed,

there are currently proceedings in the Circuit Court for

the Fifteenth Judicial Circuit In and For Palm Beach

County, Florida, and in the Probate Court, Davidson

County, Tennessee. The Tennessee Court of Appeals’

decision, under these circumstances, cannot be said to be

“an effective determination of the litigation and not of

merely interlocutory or intermediate steps therein.” It

certainly is not “the final word of the final court.”

Indeed, this Court has routinely held that the need to

determine damages or other appropriate relief on remand

means that the determination of the state courts is not yet

final, even if the federal question is not likely to arise

again in the proceedings. See, e.g., Republic Natural Gas

Co. v. Oklahoma, 334 U.S. 62, 68 (1948); Houston v. Moore,

16 U.S. (3 Wheat) 433, 434 (1818); San Diego Gas & Elec.

Co. v. San Diego, 450 U.S. 621, 632-33 (1981); O’Dell v.

Espinoza, 456 U.S. 430 (1982). Likewise, when an account-

ing remains, a state court determination of the federal

question is not final, except when the state court has

ordered an immediate transfer of property causing irrepa-

rable harm. See, e.g., Republic Natural Gas Co. v. Okla-

homa, 334 U.S. 62, 68 (1948) (“an order decreeing

immediate transfer of possession of physical property is

10

final for purposes of review .... But [a taking] ... where

the amount of compensation has not been determined, is

not deemed final, certainly where the property will not

change hands until after the award of compensation”). No

such immediate transfer of property has been ordered by

the Tennessee Court of Appeals.

If a trial court only has ministerial acts to fulfill on

remand, there is finality to the appellate court judgment.

See, e.g., Department of Banking v. Pink, 317 U.S. 264, 267

(1942). However, that is not the case here. Apart from the

counterclaims, setoffs and other defenses that Petitioners

assert are still available and, in fact, are pursuing in the

state courts of Florida, vital determinations remain to be

made in the Davidson County Probate Court in Tennessee:

the assets constituting the estate; the value of the dece-

dent’s estate; whether assets transferred during life

should be included for elective share purposes; whether

assets should be liquidated to satisfy the elective share in

cash; the style of living of the Davises at the decedent’s

death for purposes of determining the statutory year’s

allowance; and the personal property of her husband to

which Mrs. Davis is entitled under the exempt property

statute. These are not ministerial acts and demonstrate

that the Probate Court’s summary judgment was merely

an interlocutory or intermediate step in the estate litiga-

tion.

D. The Federal Question Raised in the Peti-

tion Had Not Been Previously Raised in

the State Courts

In order for the United States Supreme Court to

exercise jurisdiction under 28 U.S.C. § 1257(a), a substan-

tial federal question must have been properly raised in the

state courts. See, e.g., Zucht v. King, 260 U.S. 174, 176

(1922). One important reason for insisting that state

11

courts be given the first opportunity to pass on federal

claims is the Court’s oft-repeated acknowledgment of state

court competence to adjudicate federal constitutional

claims. See, e.g., Allen v. McCurry, 449 U.S. 90, 105 (1980).

See also Robert L. Stern et al., Supreme Court Practice 169

(8th ed. 2002). This principle of state court competence is

invested with so much importance by the Court that it has

held that “[bly failing to raise his claims in state court a

plaintiff may forfeit his right to obtain review of the state

court decision in any federal court.” District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16

(1983). As stated in this Court’s recent decision in Adams

v. Robertson, 520 U.S. 83, 90 (1997), “it would be unseemly

in our dual system of government to disturb the finality of

state judgments on a federal ground that the state court

did not have occasion to consider.”

For these reasons, the Supreme Court has held on

numerous occasions that the petitioner has the “high

burden” of establishing that the federal question was

properly raised, so that the failure of the state court to

deal with it was not for want of proper presentation. See,

e.g., Campbell v. Louisiana, 523 U.S. 392, 403 (1998);

Adams v. Robertson, 520 U.S. 83, 86 (1997).

In their briefs before the Tennessee Court of Appeals

and the Tennessee Supreme Court, Petitioners did, in fact,

raise a Full Faith and Credit claim. However, it was a

strikingly different Full Faith and Credit claim than the

claim raised in their present petition before this Court.

Accordingly, neither the state courts of Tennessee nor Mrs.

Davis were ever given an opportunity to address the

federal constitutional claim in the prior state proceedings

and had no reason to anticipate it.

In its most recent decision on the issue, this Court

emphasized the requirement that the federal claim must

12

have been presented in the state courts with “fair preci-

sion and in due time.” Adams v. Robertson, 520 U.S. 83, 88

(1997). Important policies are served by this requirement,

which is alternatively cast as jurisdictional or prudential,

but if the latter, entitled to no less respect. Jd. at 90. By

requiring state court consideration of the claim first, the

interest of comity is served and the possibility of resolu-

tion on alternative state grounds is fostered, thereby

avoiding unnecessary Supreme Court adjudication. Fur-

thermore, it assures the creation of a more adequate

factual and legal record in the Supreme Court, and per-

mits the parties to test and refine their positions, thus

enhancing the Court’s own understanding.

In Adams, petitioners had raised in a heading of an

argument in their brief in state court the argument made

in their petition for writ of certiorari, that minimum due

process required that class members be permitted to opt

out of a class. However, the discussion under the heading

in their state court brief only addressed due process in the

sense of the lack of personal jurisdiction over out-of-state

class members. For that reason, the Court denied their

petition.

In the Tennessee Court of Appeals in the present case,

Petitioners actually took the position, without reservation,

that Tennessee could apply its law based on its own public

policy. Petitioners simply argued that “[bjefore declaring a

contract void on public policy grounds, a court must

determine that no doubt exists that enforcing the contract

would clearly prejudice the public interest” when applied

to the particular facts. Pet. Br. in Tenn. Ct. App. 14, 19.

They argue in their brief before this Court precisely the

contrary, thet a forum-centered analysis is constitutionally

infirm and must give way to an indeterminate “multidi-

mensional analysis” that takes account of “the forum’s

obligations to other states.” Pet. Cert. 10-11. Thus, Peti-

tioners now challenge in this Court the very reasoning of

13

their Full Faith and Credit claim in the Tennessee Court

of Appeals.

In sum, neither the Tennessee courts nor Mrs. Davis

were previously alerted to the Full Faith and Credit claim

now raised by Petitioners for the first time in their brief

before this Court. The fact that the claims in the state

court and before this Court are both generically identified

as Full Faith and Credit claims is not enough to satisfy

Petitioners’ “heavy burden” to raise the federal question in

the state courts, see Campbell v. Louisiana, 523 U.S. 392,

403 (1998); Adams v. Robertson, 520 U.S. 83, 86 (1997),

and make their federal question argument with “fair

precision,” Adams v. Robertson, 520 U.S. at 88. This is

especially true here, since their state court and Supreme

Court positions on the obligations of the forum under the

Full Faith and Credit Clause are in direct and stark

conflict.

Petitioners’ disregard of the principle that federal

questions must first have been raised and finally resolved

in the state court proceedings is also strikingly evidenced

by a related claim that Petitioners raise for the first time

in this Court. They urge the Court to use this case as a

vehicle for establishing the principle of separate marital

domiciles for spouses who have separate individual domi-

ciles. Pet. Cert. 19. However, this issue was not raised or

even hinted at in the state court proceedings. Neither Mrs.

Davis nor the Tennessee state courts ever had an opportu-

nity to address it.

E. None of the Exceptions of Cox Broadcast-

ing Corp. Are Applicable

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477

(1975), the Supreme Court identified four narrow catego-

ries of cases in which a state judgment might be consid-

ered final, even though there are further proceedings in

14

the lower state courts to come. The first category is one in

which there are further proceedings, but “the federal issue

is conclusive or the outcome of further proceedings preor-

dained.” The present case does not fit within this category.

Petitioners’ counsel has affirmatively stated that Petition-

ers have other grounds on which they could prevail. Resp.

App. A-1, B-1. Furthermore, if Petitioners succeeded in

their lawsuit in Florida, the federal question would be

mooted. In addition, Mrs. Davis could still challenge the

validity of the waiver on the ground of duress. Thus, at

this stage the federal question can hardly be regarded as

conclusive.

The second category referred to in Cox Broadcasting

Corp. involves cases “in which the federal issue, finally

decided by the highest court in the State, will survive and

require decision regardless of the outcome of the future

state-court proceedings.” 420 U.S. at 480. Again, this case

does not fit within this category. As has already been

explained, Petitioners apparently believe they can prevail

in Tennessee or Florida on state law or other federal law

grounds, thus obviating the need to ever consider the

federal question presented to this Court by Petitioners.

The third category refers to “situations where the

federal claim has been finally decided, with further pro-

ceedings on the merits in the state courts to come, but in

which later review of the federal issue cannot be had,

whatever the outcome of the case.” Jd. at 481. The present

case does not fit in this third category either. Were Peti-

tioners to lose after having exhausted all avenues in

Tennessee and Florida now available to them, the federal

question could then be presented to this Court, at a time

when there would truly be a final judgment in the state

courts. -

15

The last category involves those situations:

where the party seeking review here might pre-

vail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal is-

sue by this Court, and where reversal of the state

court on the federal issue would be preclusive of

any further litigation on the relevant cause of ac-

tion rather than merely controlling the nature

and character of, or determining the admissibil-

ity of evidence in, the state proceedings still to

come.

Id. at 482-83. In this case, were the Tennessee Court of

Appeals’ determination to be reversed, this would not be

preclusive of further litigation on the cause of action. For

example, the Tennessee Court of Appeals explicitly stated

that “our holding on the issue of public policy makes it

unnecessary for us to address the issue of duress.” Pet.

App. A-15. Were the public policy ground barred, Mrs.

Davis could still proceed with her claim for statutory

rights and the invalidity of the waiver based on the theory

of duress.

Clearly, none of the categorical exceptions of Cox

Broadcasting Corp., which are to be applied narrowly, are

applicable. Equally significant, the nature of the federal

question may alter as the litigation develops. For example,

if the petition is denied but Petitioners somehow prevailed

in the Florida courts, then Mrs. Davis, rather than Peti-

tioners, may be making a full faith and credit argument —

specifically, that Florida must give full faith and credit toa

Tennessee judgment. Thus, to proceed now would encour-

age fragmentary review, an outcome firmly disfavored by

this Court. As was stated in Radio Station WOW v. John-

son, 326 U.S. 120, 127 (1945), “Of course, where the

remaining litigation may raise other federal questions that

may later come here .. . to allow review of an intermediate

16

adjudication would offend the decisive objection to frag-

mentary reviews.”

II. PETITIONERS HAVE FAILED TO COMPLY

WITH THE MANDATE OF SUPREME COURT

RULE 14.1(g)(i)

Under Supreme Court Rule 14.1(g)(i), if review of a

state court judgment is sought, a petition for writ of

certiorari “shall” contain “specification of the stage in the

proceedings, both in the court of first instance and in the

appellate courts, when the federal questions sought to be

reviewed were raised; the method or manner of raising

them and the way in which they were passed on by those

courts; and pertinent quotations of specific portions of the

record or summary thereof, with specific reference to

places in the record where the matter appears... so as to

show that the federal question was timely and properly

raised and that this Court has jurisdiction to review the

judgment on a writ of certiorari.” Petitioners’ brief fails to

comply with this mandatory rule.

In Adams v. Robertson, 520 U.S. 83 (1997), the Court

refused to reach the federal question raised by the peti-

tioner because of the petitioner’s noncompliance with Rule

14.1(g\Xi). The respondent in that case had failed to comply

with Rule 15.2, which requires a respondent to bring a

violation of a rule by the petitioner to the Court’s attention

in the brief in opposition and not later. Without minimiz-

ing the respondent’s failure to satisfy this obligation, the

Court, nevertheless, held that “we find no interest in

penalizing the failure of counsel to comply with Rule 15.2

that overrides the interest of comity or the value to this

Court for a fully developed factual and legal record upon

which to base decisions.” Id. at 92.

The Court in Adams also rejected the argument that

the significance of the underlying issue should override

17

enforcement of a technical rule. The Court relied on its

decisions in Ticor Title Insurance Co. v. Brown, 511 U.S.

117 (1994) (per curiam), and Illinois v. Gates, 462 U.S.

213, 224 (1983). In the latter of these cases, the Court

stated that by “adher[ing] scrupulously to the customary

limitations on our discretion” by application of the Rules,

“we promote respect ... for the Court’s adjudicatory

process.” Gates, 462 U.S. at 224. Inasmuch as Petitioners

have completely ignored the mandate of Supreme Court

Rule 14.1(g)(i), their petition should be denied.

Ill. TENNESSEE HAS A SIGNIFICANT AGGREGA-

TION OF CONTACTS SO THAT APPLICATION

OF ITS LAW IS CONSTITUTIONALLY PER-

MISSIBLE UNDER THIS COURT’S RECENT

UNANIMOUS DECISION IN FRANCHISE TAX

BOARD V. HYATT

For the reasons stated below, Petitioners’ arguments

are without merit. In particular, this Court’s recent unani-

mous decision in Franchise Tax Board v. Hyatt, 538 U.S.

488 (2003) and its earlier landmark decision in Allstate

Insurance Co. v. Hague, 449 U.S. 302 (1981) are disposi-

tive.

A. This Court’s Recent Unanimous Decision in

Franchise Tax Board v. Hyatt Is Controlling

Precedent

This Court’s decision in Franchise Tax Board v. Hyatt,

538 U.S. 488 (2003), is controlling precedent and entirely

dispositive of the matter. When an earlier Supreme Court

decision has so explicitly addressed and resolved the

question raised, the substantial federal question require-

ment is not satisfied and certiorari must be denied. See,

e.g., Palmer Oil Corp. v. Amerada Corp., 343 U.S. 390,

391-92 (1952); Zucht v. King, 260 U.S. 174, 176-77 (1922);

18

Equitable Life Assurance Soc’y v. Brown, 187 U.S. 308, 311

(1902).

In Franchise Tax Board, 538 U.S. 488 (2003), the

Nevada Supreme Court refused to apply a California

statute immunizing its tax collection agency from private

lawsuits. Unlike California, Nevada law had waived

sovereign immunity with respect to intentional torts. In a

unanimous opinion, per Justice O’Connor, this Court first

drew a sharp distinction in the application of the Full

Faith and Credit Clause between foreign state judgments

and foreign state laws. In the case of judgments, the Full

Faith and Credit Clause is “exacting.” Id. at 494. However,

“it is less demanding with respect to choice of laws.” Id.

Specifically, the Court quoted from its earlier decision in

Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988), which

quoted the earlier decision in Pacific Employers Insurance

Co. uv. Industrial Accident Commission, 306 U.S. 493, 502

(1939), for the governing principle that the “Full Faith and

Credit Clause does not compel ‘a state to substitute the

statutes of other states for its own statutes dealing with a

subject matter concerning which it is competent to legis-

late.’”

In their brief, Petitioners strikingly fail to recognize

the distinction in treatment of foreign state judgments and

foreign state Jaws under the Full Faith and Credit Clause.

Indeed, Petitioners rely heavily on Baker v. General

Motors Corp., 522 U.S. 222 (1998). However, theirs is a

troubling mischaracterization of the holding in Baker. The

language from Baker quoted in Petitioners’ brief actually

only refers to judgments and, indeed, the Court is careful -

to italicize the word “judgments” to distinguish it from

laws of another state. Id. at 233. The present case involves

laws, not judgments.

The state of California argued in Franchise Tax Board

that a new rule was needed to protect core constitutional

19

interests. This Court rejected the call to frame a new rule

of law and ignore binding precedent. It emphasized that it

had unequivocally abandoned its prior balancing-of-state-

interests conflict of laws approach. 538 U.S. at 495. In-

deed, Justice O’Connor, for the Court in Franchise Tax

Board, concluded her opinion by warning that “[w]ithout a

rudder to steer us, we decline to embark on the constitu-

tional course of balancing coordinate States’ competing

sovereign interests to resolve conflicts of laws under the

Full Faith and Credit Clause.” Id. at 499.

Although not calling it “balancing” or “weighing,”

Petitioners are urging on this Court a return to an ana-

lytic process that inevitably will require “balancing” and

“weighing” in one form or another. This so-called “multi-

dimensional” approach deviates markedly from the evolv-

ing practice of this Court over the past half century begin-

ning with such cases as Carroll v. Lanza, 349 U.S. 408

(1955) and Watson v. Employers Liability Assurance Corp.,

348 U.S. 66 (1954). This contemporary jurisprudence has

largely displaced the decisions from the 1930s and earlier

relied on so heavily by Petitioners in their brief. More

recent -cases like Franchise Tax Board, Sun Oil Co. v.

Wortman, 486 U.S. 717 (1988) and Nevada v. Hall, 440

U.S. 410 (1979) all return to the central principle set forth

in Pacific Employers Insurance Co. v. Industrial Accident

Commission, 306 U.S. 493, 502 (1939), which bears repeat-

ing: “(T]he Full Faith and Credit Clause does not compel ‘a

state to substitute the statutes of other states for its own

statutes dealing with a subject matter concerning which it

is competent to legislate.’”

This principle cuts forum states a wide swath in

deference to our union of coequal sovereign states. Never-

theless, there are certain limits on a state’s power to

pursue its public policy by applying its own law. The forum

state can apply its law so long as the subject matter is “a

subject matter concerning which [the forum state] is

20

competent to legislate.” Franchise Tax Board, 538 U.S. at

494. See also Sun Oil Co. v. Wortman, 486 U.S. 717, 722

(1988). If it is competent to legislate, then the forum can

apply its own law, regardless of interests or contacts of

other states. If it lacks the competence, then it cannot

apply its own law at all.

When is a state “competent to legislate” and thereby

to choose to apply its own law? This Court, in Franchise

Tax Board, quoted from Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 818 (1985), and Allstate Insurance Co. v.

Hague, 449 U.S. 302, 312-13 (1981): “‘[Flor a State’s

substantive law to be selected in a constitutionally per-

missible manner, that State must have a significant

contact or significant aggregation of contacts, creating

state interests, such that choice of its law is neither

arbitrary nor fundamentally unfair.” Franchise Tax

Board, 538 U.S. at 494, 495.

Allstate Insurance Co. clarifies contacts that will be

deemed “significant.” The contacts of Tennessee in the

present case easily meet and exceed the contacts that were

held to satisfy the standard in Allstate Insurance Co. In

that case the plurality opinion identified three contacts

that the forum, Minnesota, had. First, Mr. Hague, whose

wife was seeking a recovery from an insurer for her

husband’s motorcycle-related death, had commuted to

work in Minnesota on a routine basis, although he was not

commuting when he died. The opinion emphasized that

membership in the state workforce was an important

contact though it implicates “a state interest less substan-

tial than does resident status.” 449 U.S. at 314. In the

present case, the decedent was a resident of Tennessee at

all times. The Record establishes that Mrs. Davis was also

a resident of Tennessee at the critical moment of the

decedent’s death. R. vol. I, at 1. Just as Minnesota’s work

21

force is affected by the level of protection the state extends

employees at the time of death, id. at 315, so, too, Tennes-

see’s resident surviving spouses are affected by the protec-

tion Tennessee affords them and the criteria it utilizes in

determining if they have waived those protections. _

The second factor that Minnesota could claim in

Allstate Insurance Co. as a contact was the insurer’s

presence at all times in Minnesota. Thus, it should have

been familiar with the prospect that the state would apply

forum law. There was “no element of unfair surprise or

frustration of legitimate expectations.” Id. at 318 n.24.

Likewise, in the present case, the decedent knew he was a

lifetime Tennessee domiciliary, whose assets were located

primarily in Tennessee, and whose estate would likely be

administered in Tennessee and not Florida. He had attor-

neys who could have informed him that Tennessee statu-

tory and case law had for decades not enforced lex loci

contractus when the contract—violated Tennessee public

policy. See, e.g., Bowman v. Price, 226 S.W. 210, 214 (Tenn.

1920). He should also have known that full and fair

disclosure was another important public policy of his

domicile when considering the validity of antenuptial

agreements waiving statutory rights of a surviving spouse.

Moreover, the decedent’s expectations, if any, were cer-

tainly not “legitimate.” As the Court of Appeals pointedly

explained, “the parties to this action do not dispute that

the Davises’ antenuptial agreement was entered into by

the parties without full and fair disclosure.” Pet. App. A-14

(emphasis added).

The third and final factor in Allstate Insurance Co.

contributing to Minnesota’s significant aggregation of

contacts was the surviving spouse’s Minnesota residence

at the time the litigation commenced. Even though she

became a resident just as the suit commenced, the Court

still credited the state with this contact. In Mrs. Davis’

22

case, she had been a resident of Tennessee well before Mr.

Davis’ death and the commencement of this litigation.

B. Tennessee Has a Particularly Significant

Aggregation of Contacts

The actual extent of Tennessee’s contacts are consid-

erably more extensive than those identified in Allstate

Insurance Co. When a surviving spouse of a Tennessee

domiciliary executes a valid waiver as part of an antenup-

tial agreement, the surviving spouse is foregoing valuable

statutory rights granted by the legislature of Tennessee in

conjunction with the distribution of the Tennessee property

of a Tennessee domiciliary. The waiver relates directly to

how much the surviving spouse and other devisees will

inherit pursuant to the inheritance law of Tennessee. It

affects deeply the relationship of Tennessee domiciliaries

to their spouses and the trust and confidence that parties

bring to the institution of marriage. This is especially true

when, as here, the surviving spouse is a resident of Ten-

nessee at the time of her spouse’s death.

Furthermore, the very Petitioners who now claim that

Tennessee has no interest were the ones who initiated the

probate proceeding in Tennessee and not in Florida. They

sought the assistance of the Tennessee courts in assuring

the efficient and proper distribution and administration of

the estate of a Tennessee domiciliary. They derive their

very authority as J.D. Davis’ legal successor from their

appointment by the Tennessee courts, which they sought

out. They remain accountable to this day to the Tennessee

courts and those of no other state. They asked the Tennes-

see courts to find Mrs. Davis’ statutory claims invalid

under Tennessee law and, having been repudiated by the

Tennessee courts, they now assert that those courts had no

authority to determine the very issue they presented.

23

In contrast, even assuming Mrs. Davis was and is a

Florida domiciliary, one struggles to identify Florida’s

interest in denying one of its widowed domiciliaries

property that another state, Tennessee, is willing to give to

her. Florida certainly has no interest in diminishing the

take of one of its domiciliaries so as to enhance the inheri-

tances of Petitioners, who are not Florida domiciliaries or

residents. R. vol. I, at 1.

C. Tennessee Acted Sensitively and Respect-

fully with Regard to Florida’s Law

Even though Tennessee easily satisfies the aggrega-

tion of significant contacts test, the Court in Franchise Tax

Board did indicate another basis for disallowing the

forum’s application of its public policy, that is, when the

forum state exhibits “‘a policy of hostility to the public

Acts’ of a sister State.” 538 U.S. at 499 (quoting Carroll v.

Lanza, 349 U.S. 408, 413 (1955)). A fair reading of the

opinion of the Tennessee Court of Appeals leaves no doubt

but that the Court of Appeals went well beyond what was

constitutionally required in showing sensitivity to the

Florida law. With great care and detail, it analyzed that

law and then contrasted it with Tennessee’s. The Court

explicitly identified the legitimate policies it was pursuing

— the encouragement of the utmost good faith between

spouses, one of whom was a domiciliary of the state and

the other a resident, and the assurance that spousal

waivers in “a probate proceeding which could occur only in

Tennessee” are entered into knowledgably or with full and

fair disclosure. Pet. App. A-14.

24

D. Tennessee Law, Like the Law of Virtually

Every Other State, Requires a Higher De-

gree of Disclosure by the Parties in the

Case of an Antenuptial Agreement than in

the Case of an Ordinary Commercial

Agreement

Tennessee, like virtually every other state in the

country that grants statutory rights at death to a surviv-

ing spouse, requires a higher degree of disclosure or

knowledge: with respect to waivers of such rights by

antenuptial agreement than in the case of ordinary com-

mercial contracts. Indeed, there appear to be only three

exceptions — Florida, New York, and Georgia. See Jeffrey

A. Schoenblum, 2005 Multistate Estate Planning Guide

Table 6.04 (2005). Far from asserting a novel public policy

in this case, Tennessee is merely seeking to assure the

preservation of rights that are widely recognized nation-

ally. Furthermore, Tennessee’s mainstream approach belies

any suggestion that its enforcement of such rights “exhibits

a ‘policy of hostility to the public Acts’ of a sister State.”

Franchise Tax Board v. Hyatt, 538 U.S. 488, 499 (2003)

(quoting Carroll v. Lanza, 349 U.S. 408, 413 (1955)).

Nevertheless, Petitioners cite Soloman v. Murrey, 103

S.W.3d 431, 434 (Tenn. Ct. App. 2002) for the proposition

that in Tennessee antenuptial agreements are “interpreted

and enforced like any other contracts.” The Soloman court,

however, actually proceeds to offer the following vital

caveat with respect to antenuptial agreements: “the courts

must closely examine the circumstances of their formation,

to make sure [antenuptial agreements] have been entered

into freely, knowledgably, and in good faith, without

duress or undue influence.” Id. (citing Randolph uv.

Randolph, 937 S.W.2d 815 (Tenn. 1996); Wilson v. Moore,

929 S.W.2d 367 (Tenn. 1996)). Indeed, the Tennessee

Supreme Court has been consistent over the years, most

25

recently in Bratton v. Bratton, 136 S.W.3d 595 (Tenn.

2004), as has the Tennessee legislature via- Tenn. Code

Ann. § 36-3-501, in holding antenuptial and postnuptial

agreements to a higher standard than the typical commer-

cial contract. Because marriage is involved, the highest

degree of fiduciary duty between the parties is called for.

As the Court of Appeals in the present case stated, “An

engagement to marry creates a confidential relation

between the contracting parties and an antenuptial

agreement contract entered into after the engagement and

during its pendency must be attended by the utmost good

faith.” Pet. App. A-13 (quoting Bratton v. Bratton, 136

S.W.3d at 601). See also Eugene Scoles, et al., Conflict of

Laws § 18.19 (3d ed. 2000) (recognizing that choice-of-law

principles applicable to ordinary commercial contracts

properly should not apply to succession-related contracts).

E. The Court Should Not Unsettle the Vener-

able and Established Conflict of Laws

Principles in This Area of Law

With Court precedent settled in Mrs. Davis’ favor,

Petitioners rely to a large degree on several law review

articles and other secondary sources for support. Petition-

ers refer to certain scholars, such as Professors Weintraub

and Laycock, without noting that these very scholars’

theories have come under withering assault from other

conflicts scholars. See, é.g., A Conflict-of-Laws Anthology

chs. 6, 10C (Gene R. Shreve, ed., 1997). Indeed, as this

Court stated in Sun Oil v. Wortman, 486 U.S. 717, 728-29

(1988), “In sum, long established and still subsisting

choice-of-law practices that come to be thought, by modern

scholars, unwise, do not thereby become unconstitu-

tional. ... It is not the function of this Court, however, to

make departures from established choice-of-law precedent

and practice constitutionally mandatory.”

26

Moreover, a review of the secondary sources relied

upon by Petitioners reveals a less than precise presenta-

tion. A critical example is Petitioners’ reliance on the

Restatement (Second) of Conflict of Laws § 6. Petitioners

cite this section for the principle that a variety of factors

have to be taken into account. However, that section defers

to a more specific provision, § 265. Section 265 specifically

provides for the application of the law of the decedent's

domicile in determining a surviving spouse’s rights,

including the validity of an antenuptial agreement that

opts expressly or implicitly for a different governing law.

As Comment 6 of § 265 makes clear, the domicile “might”

apply a different law, but is by no means required to do so,

even when there has been an explicit and knowing desig-

nation of a different law in the waiver.

The common law also strongly supports the principle

that the conflicts rules applicable to ordinary contracts do

not apply when the waiver of statutory rights associated

with succession is involved. In the principal contemporary

common law precedent, Jn re Bulova’s Will, 14 A.D.2d 249,

220 N.Y.S.2d 541 (App. Div. 1961), the Appellate Division

of the New York Supreme Court held that the law of New

York, where the probate proceedings were and the dece-

dant was domiciled, governed. This was held to be the

case even though the waiver of statutory rights by way of

a postnuptial agreement had been executed out-of-state.

The Court stated that “the mere fact an instrument is a

contract does not mean that the conflict rules to be applied

are those associated with contract but, rather, may be and

would most likely be those associated with the jural

relations directly affected by provisions of the agreement.”

14 A.D. at 255, 220 N.Y.S.2d at 547. The Bulova court

went on to state: “Hence, it is one or more of the special-

ized rules applicable to conveyances, elections, releases,

waivers, and the like, rather than the more generalized

one based on the place of contracting which determine the

27

formalities required for the execution of the [postnuptial]

agreement.” 14 A.D. at 255-56, 220 N.Y.S.2d at 547.

_ Bulova follows upon the venerable Emery v. Burbank,

163 Mass. 326, 329, 39 N.E. 1026, 1027 (1895), in which

then-Massachusetts Justice Oliver Wendell Holmes con-

cluded that Massachusetts law governed,. even though it

invalidated an oral contract to make a will, which was

valid where and when made in Maine. Justice Holmes

explained that “the final domicile [of the decedent] is more

concerned in the policy to be insisted on [when the dece-

dent’s estate is affected] than any other jurisdiction.” Jd.,

see also Rubin v. Irving Tr. Co., 305 N.Y. 288, 301-02, 113

N.E.2d 424, 429 (1953) (holding that New York courts

could refuse to enforce an oral contract not to change a will

executed in and valid under Florida law because New York

had the most significant contacts in that the property at

issue was in New York where decedent had been domiciled

and where performance on the contract would take place).

As another leading and influential conflicts scholar,

Professor Robert Leflar, wrote in a passage quoted by the

Bulova court: “At the same time it must be remembered

that, apart from the contract itself, legal effect upon titles

in particular property is controlled by the law that governs

the property as such, often a different law from that which

governs the contract.” 14 A.D.2d at 257, 220 N.Y.S.2d at

548.

Even were the Court so inclined to take on the Hercu-

lean and inevitably frustrating chore of developing a

coherent national system of conflicts guidelines, the facts

of this case are not the appropriate vehicle. If there is one

area of conflicts law where there are settled rules, it is

succession law, including the waivers that directly impact

on the inheritance claims of interested persons.

28

F. The Constitutional Principle Urged by

Petitioners Would Have a Severely Desta-

bilizing Effect Nationally on State Inheri-

tance Law

A choice of law principle that would require the

probate court at the decedant’s domicile to refer to the

standards of a different state when determining whether

statutory benefits granted by the forum state had been

properly waived would complicate and delay the inheri-

tance process and drive up the expense of probate. It

would contribute considerable unpredictability as local

probate judges and probate lawyers sought to determine

accurately the subtleties of foreign law and the domiciliary

status of the surviving spouse. It would introduce lack of

uniformity with respect to the claims of surviving spouses

of local decedents, if their particular rights hinged exclu-

sively on where the agreement had been executed. It

would encourage unscrupulous spouses and fiancés to plan

the execution of the waiver in one of the few states like

Florida where financial disclosure is not required.

By way of contrast, reference to the law of the dece-

dent’s domicile and primary probate assures reference to

the same law for all surviving spouses, more efficient

resolution of the probate process and distribution of estate

property, and denial of opportunity to wily spouses to

bypass statutory rights afforded their surviving spouses by

execution of the waiver in certain lenient states. The

interest of the domicile in assuring that its citizens exer-

cise the utmost good faith in their marriages would also be

furthered.

The current approach of reference to the law of the

domicile of the decedent does not deny the parties the

opportunity to enter into a reciprocal waiver of statutory

29

rights. That can readily be accomplished by simply disclos-

ing to each other their finances so that they each enter

into the antenuptial agreement “knowledgeably.”

G. Tennessee Has a Vital Interest in Resident

Surviving Spouses, of Which Mrs. Davis

Was One at the Time of Her Husband’s

Death

Apparently in an effort to create an impression of

a strong and enduring link exclusively with Florida,

Petitioners repeatedly assert that Mrs. Davis was a

domiciliary of Florida not only at the time that the

antenuptial agreement was executed but afterwards.

There is absolutely nothing at all in the Record to sup-

port this unsubstantiated statement. Petitioners cannot

possibly determine from the Record what Mrs. Davis’

status was after she married. Indeed, she might even have

become a domiciliary of Tennessee, whether or not she

retained her domicile in Florida. See, e.g., Worcester

County Tr. Co. v. Riley, 302 U.S. 292 (1937).

By way of contrast, the Record is rich with evidence

that, at the time of her husband’s death and in the imme-

diately preceding years, Mrs. Davis was not only physi-

cally a resident of Tennessee, but that she personally

considered herself a resident of the state and Petitioners

considered her to be a Tennessee resident as well. Notably,

in their Petition for Probate, Petitioners identified Mrs.

Davis’ residence as “4507 Price Circle Road, Nashville, TN

37205.” R. vol. I, at 1. They did not list or indicate a

Florida residence or domicile. On federal income tax

returns for the last full three years of their marriage,

1999-2001, Mrs. Davis and her husband filed joint returns

with only a Tennessee address listed. R. vol. II, at 160,

163, 166. On September 23, 2002, Mrs. Davis filed a claim

against the estate with the Probate Court. She identified

30

herself as the claimant and listed her address as “4507

Price Circle Road, Nashville, TN 37205.” R. vol. I, at 41.

When her attorneys submitted petitions for her statutory

rights, she was copied on all filed documents, with only a

Nashville address listed. R. vol. I, at 53, 58, 63, 68.

One of Petitioners’ major arguments is that Mrs.

Davis had no connection with Tennessee. They completely

overlook her connection as a resident. In many respects,

“residence is actually a more significant day-to-day practi-

cal affiliation-than domicile. Tennessee, as every other

state, has a very real interest in assuring that resident

surviving spouses, and often their minor children, are

adequately provided for so that they do not become a

burden on the state in which they reside. This is a sound

public policy, as is encouraging the utmost good faith-

between resident spouses in their dealings with each

other.

IV. CONCLUSION

For these reasons, the petition for the writ of certio-

rari should be denied.

Respectfully submitted,

OVERTON THOMPSON III

Counsel of Record

BAss, BERRY & Sims PLC

AmSouth Center

315 Deaderick Street, Suite 2700

Nashville, TN 37238-3001

615-742-7730

and

JEFFREY A. SCHOENBLUM

Vanderbilt University School of Law

131 21st Avenue South

Nashville, TN 37203-1181

615-322-2668

A-1

APPENDIX A

BAKER COMMERCE CENTER

DONELSON SUITE 1000

BEARMAN, CALDWELL & 211 COMMERCE STREET

BERKOWITZ, PC NASHVILLE, TENNESSEE 37201

; PHONE: 615.726.5600

FAX: 615.726.0464

MAILING ADDRESS: -

P.O. BOX 190613

NASHVILLE, TENNESSEE 37219

www.bakerdonelson.com

RICHARD D. BIRD

Direct Dial: (615) 726-7327

Direct Fax: (615) 744-7327

E-Mail Address: rbird@bakerdonelson.com

June 28, 2005

Overton Thompson, III, Esq.

Bass, Berry & Sims

Suite 2700, AmSouth Center

315 Deaderick Street

Nashville, TN 37238-3001

ik VIA HAND DELIVERY

Re: Dorothy L. Davis/Estate of J.D. Davis, Deceased

Dear Overton:

In response to your letter of May 17, 2005 and the

more recent letters, we do not agree that the claims of

Dorothy Davis are finally resolved in her favor. This

response and the information furnished are without

waiving any rights, claims, defenses, setoffs, counter-

claims or other actions and resources available to the

Executors for the benefit of the Estate.

A-2

As you are fully aware, the Executors have followed

and fulfilted their responsibility to uphold the Will of

the Decedent and contractual commitments made

during his lifetime. This has included following the

terms of the Will and providing Dorothy Davis with the

personal and financial benefits granted to her by the

terms of the Will until recent date.

There is really very little pertinent information

about the Estate which is not already known to you and

your client. Enclosed for reference is a copy of the Estate

Inventory filed by the Executors on August 6, 2002, a

copy of which was duly furnished_to counsel for Mrs.

Davis. Also enclosed are copies of the Federal Estate

Tax return (Form 706) and the Tennessee Inheritance

Tax return which give the details and values for every

asset. :

Much of the requested information is moot and not

relevant. By an agreement signed by Mrs. Davis on

April 3, 2004, she specifically waived and released all of

her rights and interests in the personalty in the Nash-

ville residence.

The value of the estate is substantially the interests

in the limited partnerships, all of which are minority

interests. You are aware of the sale of the interest in

Boulevard Terrace Rehabilitation and Nursing Center,

LP and have a letter giving complete details. I do not

have the most current information on Items 6 f-i but the

values are minimal. The last I heard about Meecham

and Company it was a plan to liquidate by the operating

owner. Recently and at some expense, one of the oil

leases is producing but there is a pending suit by the

land owner seeking to terminate the lease. -

A-3

As you are well aware, the Price Circle residence

was sold and Mrs. Davis received a cash portion of the

proceeds and signed a release.

Also enclosed is a copy of the last accounting filed

with the Court.

This letter and the enclosures fairly well answer all

of your inquiries about the Estate. As stated above, this

information is furnished voluntarily and without any

waiver of any kind.

Very truly yours,

BAKER, DONELSON,

BEARMAN, CALDWELL

& BERKOWITZ, PC

/s/ Richard D. Bird

Richard D. Bird

RDB:vmr

Enclosures

cc: Julie Griffin

Doug Davis

T.O. Helton

(All without enclosures)

B-1

APPENDIX B

COMMERCE CENTER

SUITE 1000

211 COMMERCE STREET

NASHVILLE, TENNESSEE 37201

PHONE: 615.726.5600

FAX: 615.726.0464

MAILING ADDRESS:

P.O. BOX 190613

NASHVILLE, TENNESSEE 37219

www.bakerdonelson.com

RICHARD D. BIRD

Direct Dial: (615) 726-7327

Direct Fax: (615) 744-7327

E-Mail Address: rbird@bakerdonelson.com

July 20, 2005

Overton Thompson, III, Esq.

Bass, Berry & Sims

AmSouth Center, Suite 2700

Nashville, TN 37238-3001

Re: Estate of J.D. Davis/Dorothy Davis

Dear Overton:

To supplement the material previously furnished,

enclosed are copies of the 2004 Schedule K-1’s in the

following minor interests in the estate:

Valley View, Ltd.

Glen Valley Apartments & Duplexes

Sycamores Apartments

Sycamores Terrace, LLC

Somerset Village Apartments

BTRNC, LLC (sold) |

Boulevard Terrace Rehabilitation

& Nursing Center, LP (sold)

B-2

Based on the most recent information, Meacham

and Co. has little if any value. Last I saw, the other 50%

partner offered $700 for the 50% interest owned by the

estate.

As I have advised in previous correspondence, it is

not considered that the claims of Dorothy Davis against

the estate are finally resolved.

Very truly yours,

BAKER, DONELSON,

BEARMAN, CALDWELL

& BERKOWITZ, PC

/s/ Richard D. Bird

Richard D. Bird

RDB:vmr.

Enclosures

ce: Julie Griffin (via email, w/o enclosures)

Doug Davis (via email, w/o enclosures)

C-1

APPENDIX C

[SEAL] Court of Appeals — Middle Division

100 Supreme Court Building

401 7th Avenue North

Nashville, TN 37219-1407

(615)741-2681

Overton Thompson

Bass, Berry & Sims PLC

AmSouth Center

315 Deaderick Street, Suite 2700

Nashville, TN 37238-3001

Date Printed: 08/26/2005

Notice Date: 08/26/2005

Case Style: Dorothy L. Davis v. J. Douglas Davis

and Julie Ann Davis Griffing, Co-

executors under the Last Will and

Testament of J.D. Davis, deceased

Case Number: M2003-02614-COA-R3-CV

Action: Date Filed: 08/26/2005 Court Order

Filed: Related to Mandate: Denying

Motion to Recall Mandate::

Trial Court: Davidson County Trial Court Number:

Probate Court 02P-859

The Appellate Court Clerk’s office has entered the above

action in the Justice Information Tracking System. .

CRV

C: Thomas O. Helton

Davidson County Circuit Court Clerk

C-2

IN THE COURT OF APPEALS

OF TENNESSEE AT NASHVILLE '

DOROTHY L. DAVIS v. J. DOUGLAS DAVIS, ET AL.

Circuit Court for Davidson County

No. 02P-0859

No. M2003-02614-COA-R3-CV

ORDER

(Filed Aug. 26, 2005)

Respondents/Appellees J. Douglas Davis and Julie

Ann Davis Griffin have moved this Court to recall the

mandate that was issued in this matter on May 13,

2005. The basis for the motion is that movants have

filed a petition for a Writ of Certiorari in the Supreme

Court of the United States and that Court has advised

the Clerk of this Court that the petition has been filed

and placed on the docket. A memorandum was filed in

support of the motion. The Petitioner/Appellant, Doro-

thy L. Davis, filed a memorandum in opposition to the

motion to recall mandate.

Rule 42(c) of the Tennessee Rules of Appellate

Procedure, provides that this Court may stay a mandate

in cases in which review by the Supreme Court of the

United States may be sought and section (d) of that rule

provides that the power to stay a mandate includes the

power to recall a mandate. Having reviewed the motion

and supporting documents as well as the memorandum

in opposition to the motion, it is determined that the

motion is not well taken and the motion to recall man-

date is denied. IT IS SO ORDERED.

C-3

/s/ David R. Farmer

DAVID R. FARMER,

JUDGE

/s/ Alan E. Highers

ALAN E. HIGHERS,

JUDGE

D-1

APPENDIX D

IN THE CIRCUIT COURT OF

THE 15TH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH

COUNTY, FLORIDA

J. DOUGLAS DAVIS and CASE NO::

JULIE ANN DAVIS 50 2005CA 006717 XXXX MB

GRIFFIN, as co-executors

of the estate of J. D. Davis,

deceased,

Plaintiffs,

Vv.

DOROTHY L. DAVIS,

Defendant. /

COMPLAINT

(Filed Jul. 19, 2005) . ‘

Plaintiffs, J. DOUGLAS DAVIS and JULIE ANN

DAVIS GRIFFIN, as co-executors of the estate of J. D.

Davis, deceased (“Plaintiffs”), sue the Defendant, DORO-

THY L. DAVIS (“Defendant”), and allege: ©

JURISDICTION AND VENUE

1. Plaintiffs are co-executors of the estate of J. D.

Davis, (the “Deceased”), as appointed in his Last Will and

Testament. J. Douglas Davis is a resident of Brentwood,

Williamson County, Tennessee. Julie Ann Davis Griffin is

a resident of Winston-Salem, North Carolina. J. D. Davis

(“Decedent”)’s probate estate-is being administered in the

Seventh Circuit Court for Davidson County, Tennessee,

Probate Division, Case Number 02P-859.

D-2

2. Defendant is over the age of eighteen (18) years,

sui juris, and a resident of Palm Beach Gardens, Palm

Beach County, Florida.

FACTS COMMON TO ALL COUNTS

3. On July 19, 1990, for mutual consideration and

mutual protection of their respective assets, Decedent and

Defendant executed a written agreement entitled “Ante-

Nuptial Agreement,” a copy of which is attached hereto as

Exhibit “A” (hereinafter referred to as the “Agreement”). -

4. The Agreement was entered into and signed by

both Decedent and Defendant in Palm Beach County,

Florida.

5. Pursuant to the mutual terms of the Agreement,

the individual assets of Decedent and Defendant were, at

all times during their marriage, to be maintained separate

and apart from each other’s individual assets. Specifically,

the Agreement provides that the parties’ then-owned or

thereafter acquired individual assets shall be “free from

any claim of the other that may arise by reason of their

marriage.” The Agreement also provides that each spouse

waives the right of election, homestead, and other statu-

tory allowances upon the death of the other. Under Florida

law, the language of the Agreement waives all marital

rights including, but not limited to, the right of election,

homestead, exempt property, and a year’s support allow-

ance.

6. The Agreement and the provisions therein are

valid and enforceable pursuant to Section 732.702, Florida

Statutes (2004). Although not required by the statute, the

D-3

Agreement recites that disclosure of the financial assets of

each party was made to the other.

7. At all times material hereto, Decedent spent part

of the year at his residence in Palm Beach County, Florida

and part in Tennessee. Defendant always maintained her

residency in Palm Beach County, cbegpee:

8. Decedent and Defendant were married in Palm

Beach County on July 20, 1990. Both parties were wid-

owed and had children and grandchildren from prior

marriages. \

9. On September 18, 2001, Decedent executed his

Last Will and Testament in Nashville, Tennessee, leaving

property to various individuals, including significant

interests for the benefit of Defendant. A copy of Decedent’s

Last Will and Testament is attached hereto as Exhibit “B.”

10. Decedent-died in Palm Beach Gardens, Florida

on May 9, 2002, at the age of 86 years.

11. On May 15, 2002, Plaintiffs filed a Petition to

Probate the Last Will and Testament of J. D. Davis in the

Probate Court of Davidson County, Tennessee. Decedent’s

Will was admitted to probate by Order of the Seventh

Circuit Court for Davidson County, Tennessee, Probate

Division (“Davidson County Probate Court). On May 15,

2002, Letters Testamentary issued to Plaintiffs.

12. On December 5, 2002, Defendant, in violation of

the Agreement, filed in the Davidson County Probate

Court a Petition for Elective Share; a Petition for Year’s

Support Allowance; a Petition for Exempt Property; and a

Petition for Homestead. Thereafter, Plaintiffs filed a

motion for summary judgment against Defendant’s claims.

D-4

13. On April 23, 2003, the Davidson County Probate

Court granted the motion for summary judgment and

rejected Defendant’s claims for elective share, homestead

property, exempt property, and a year’s support allowance.

The Davidson County Probate Court ruled that the

Agreement is valid and enforceable under Florida law and

denied, with prejudice, Defendant’s claims for elective

share, homestead, exempt property, and a year’s support

allowance. A copy of the order is attached hereto as Ex-

hibit “C.”

14. Subsequently, on September 1, 2004, the Tennes-

see Court of Appeals reversed the decision of the Davidson

County Probate Court, declining to enforce the Agreement.

The Tennessee appellate court determined that, although

the Agreement is valid under Florida law, it is unenforce-

able in Tennessee as a matter of public policy. A copy of the

decision is attached hereto as Exhibit “D.”

15. The Tennessee Supreme Court denied Plaintiffs’

Application for Permission to Appeal and subsequent

Petition for Rehearing.

16. In violation of the Agreement, Defendant is

presently asserting claims against Decedent’s estate for

elective share, homestead, exempt property, and a year’s

support allowance before the Davidson County Probate

Court.

COUNT I - BREACH OF

ANTE-NUPTIAL AGREEMENT

17. Plaintiffs reallege paragraphs one (1) through

sixteen (16).

D-5 .

18. This is an action for money damages for breach

of contract in excess of Fifteen Thousand- Dollars

($15,000.00), exclusive of interest and costs.

19. Decedent and Defendant entered into the written

Ante-Nuptial Agreement attached hereto as Exhibit “A,” in

which Defendant agreed that Decedent’s property would

be “... free from any claim of the other that may arise by

reason of their marriage...” See J 1 of the Agreement.

20. In executing the Agreement, Defendant waived

and released “the right of election, in accordance with the

requirements of the Estates, Powers and Trust Law of the

State of Florida or of the same or similar law of any other

jurisdiction which might be applicable.” See [2 of the

Agreement.

21. Defendant breached the Agreement by imposing

the right of election, homestead, exempt property, and a

year’s support allowance in the Davidson County Probate

Court.

22. As a result of Defendant’s breach of the Agree-

ment, Decedent’s estate has suffered damages in the form

of attorneys’ fees and legal expenses incurred in defending

against Defendant’s wrongful and unjustified claims and

will continue to incur attorneys’ fees and legal expenses.

23. Additionally, also as a consequence of Defen-

dant’s breach of the Agreement, Decedent’s estate will

sustain damages in the amount of Defendant’s recovery for

elective share, homestead, exempt property, and a year’s

support allowance.

WHEREFORE, Plaintiffs, J. DOUGLAS DAVIS and

JULIE ANN DAVIS GRIFFIN, as co-executors of the

Estate of J. D. Davis, deceased, demand judgment against

D-6

Defendant, DOROTHY L. DAVIS, for compensatory

damages, pre and post judgment interest, attorneys’ fees,

costs, and such other relief as is just and proper.

COUNT Il - SPECIFIC PERFORMANCE

24. Plaintiffs reallege paragraphs one (1) through

sixteen (16). -

25. This is an action for specific performance seeking

Defendant’s compliance with the Agreement.

26. The Agreement is definite and certain in all of its

essential elements, including its purpose and spirit.

27. Paragraph Eight (8) of the Agreement specifi-

cally provides that each party shall execute and deliver

any additional documents reasonably required to carry the

intention of the Agreement into effect.

28. Defendant has violated the Agreement by assert-

ing claims which she waived and released when she

executed the Agreement.

29. Decedent’s estate will suffer irreparable injury

and has no adequate remedy at law if Defendant is per-

mitted to recover the elective share, homestead property,

exempt property, and a year’s support allowance because

the Tennessee courts will not enforce the Agreement.

30. Plaintiffs seek specific performance by Defendant

to comply with Paragraph Eight (8) of the Agreement.

Defendant should be required to execute a valid release or

instrument which will waive,, nullify, and dismiss her

pending claims in Tennessee for elective share, homestead,

exempt property, and a year’s support allowance.

D-7

WHEREFORE, Plaintiffs, J. DOUGLAS DAVIS

and JULIE ANN DAVIS GRIFFIN, as co-executors of the

Estate of J. D. Davis, deceased, request the entry of an

order requiring Defendant, DOROTHY L. DAVIS, to

execute an instrument, which will waive, nullify, and

dismiss her pending claims in Tennessee for elective share,

homestead, exempt property, and a year’s support allow-

ance. Plaintiffs further request an order awarding them

their attorneys’ fees and costs incurred in prosecuting this

action, together with such other relief as is just and

proper. ;

COUNT III - DECLARATORY JUDGMENT

31. Plaintiffs reallege paragraphs (1) through six-

teen (16). :

32. This is an action for declaratory judgment

pursuant to Section 86, et seg., Florida Statutes (2004),

seeking declaratory relief with respect to the parties’

obligations under the Agreement attached hereto as

Exhibit “A.”

33. The Agreement specifically provides that the

Decedent and Defendant’s then-owned and thereafter

acquired individual assets shall be “free from any claim of

the other that may arise by reason of their marriage.”

34. The Agreement further provides that each

spouse waives the right of election, homestead, exempt

property, and a year’s support allowance.

35. Pursuant to Section 732.702, Florida Statutes

(2004), the Agreement is valid and enforceable in the State

of Florida. :

D-8

36. Following the Decedent’s death in Palm Beach

County, Florida and the probating of Decedent’s Will in

Davidson County, Tennessee, Defendant violated the

precise terms of the Agreement by asserting claims for

elective share, homestead, exempt property, and a year’s

support allowance in the Davidson County Probate Court.

Defendant is presently prosecuting these claims, which

she intentionally and voluntarily waived when she exe-

cuted the Agreement.

37. Although the Davidson County Probate Court

initially enforced the Agreement against Defendant, the

Tennessee Court of Appeals reversed the Probate Court,

declining to enforce the Agreement. The Tennessee Court

of Appeals ruled that, although the Agreement is valid

under Florida law, it is unenforceable in Tennessee as a

matter of public policy.

38. Given the rulings of the courts in Tennessee,

Plaintiffs are uncertain of their rights and obligations

regarding Defendant’s present claims for elective share,

homestead, exempt property, and a year’s support allow-

ance in the Davidson County Probate Court.

39. A present and bona fide dispute exists between

- the parties regarding their current obligations under the

Agreement.

40. There is an actual and present need for a decla-

ration of rights with respect to the parties’ obligations

under the Agreement.

WHEREFORE, Plaintiffs, J. DOUGLAS DAVIS and

JULIE ANN DAVIS GRIFFIN, as co-executors of the

Estate of J. D. Davis, deceased, request that this Court

take jurisdiction over the parties and declare that (1) the

D-9

Agreement is valid and enforceable in every respect; (2)

Defendant, DOROTHY L. DAVIS, has no right to pursue

claims for elective share, homestead, exempt property, and

a year’s support allowance in the Davidson County Pro-

bate Court; (3) Defendant shall execute an instrument,

which will waive, nullify, and dismiss her pending claims

in Tennessee for elective share, homestead, exempt prop-

erty, and a year’s support allowance; and (4) should

Defendant recover in the Davidson County Probate Court,

Plaintiffs shall have the right to sue Defendant in Florida

for all damages arising from her breach of the Agreement,

including but not limited to damages in the amount of

Defendant’s recovery for elective share, homestead, ex-

empt property, and a year’s support allowance, together

with attorneys’ fees, costs, and such other relief as is just

and proper.

Dated: July 19, 2005

SHUTTS & BOWEN LLP

Attorneys for Plaintiffs

One Clearlake Centre

250 Australian Ave. South,

Suite 500

West Palm Beach, FL 33401

Tel: 561/835-8500

Fax: 561/650-8530

By: /s/ Arnold L. Berman

Arnold L. Berman

Florida Bar No.: 236241

Vincent E. Miller

Florida Bar No.: 126497

E-1

APPENDIX E

IN THE SEVENTH CIRCUIT COURT

OF DAVIDSON COUNTY, TENNESSEE

(PROBATE DIVISION)

IN RE: )

ESTATE OF J.D. DAVIS :

Deceased, ) Docket Number:

DOROTHY L. DAVIS, ) 02859

) Notice of Entry

Movant/Surviving Spouse, ) Required

)

Ve

)

J. DOUGLAS DAVIS and - )

JULIE ANN DAVIS GRIFFIN, )

Respondents/Co-Executors, )

MEMORANDUM OPINION AND ORDER

(Filed Aug. 26, 2005)

This matter came before the Court on August 12, 2005

upon the Motion to Compel Co-Executors to Dismiss

Lawsuit, and for Removal of Co-Executors filed by Dorothy

L. Davis as surviving spouse of the deceased J.D. Davis.

After a full hearing on this Motion, the Court took this

matter under advisement in order to fully consider the

oral arguments ‘in conjunction with the Memoranda

supplied by both parties.

The Movant is Dorothy L. Davis who is the surviving

spouse of J.D. Davis. Dorothy Davis was married to the

Deceased for eleven years prior to his death. J. Douglas

Davis and Julie Ann Davis Griffin are the Respondents to

E-2

this Motion in their capacity as Co-Executors of the Estate

of J.D. Davis, their late father.

The Movant filed this Motion seeking to dismiss a

lawsuit commenced by the Estate in Florida against

Dorothy Davis and to have the Co-Executors removed from

their fiduciary capacities. Respondents filed suit in Circuit

Court for Palm Beach County, Florida, seeking to have the

Florida Circuit Court enforce an ante-nuptial agreement

entered into by the Movant and the Deceased one day

prior to their marriage. :

Based on the reasoning set forth below, it is the

opinion of this Court that the relief requested in the

Motion shall be denied. However, it is the opinion of this

Court that all proceedings in the Florida litigation shall be

stayed pending a final determination of the appeal filed

and perfected by the Estate to the United States Supreme

Court.

There are two issues which this Court must consider.

The first is whether the Co-Executors of this Estate should

be removed from their fiduciary capacities. The Court

must also determine if the lawsuit in Florida filed on

behalf of the Estate should be dismissed.

The Movant and the Deceased met in the Spring of

1989. They were engaged to be married the following

summer of 1990. During this period the Deceased main-

tained his primary domicile in Davidson County, Tennes-

see. He would spend six months per year in Tennessee and

six months per year in Florida. One day prior to their

wedding the parties entered into an ante-nuptial agree-

ment in the office of the Deceased’s attorney. The Movant

argued that she was not made fully aware of the De-

ceased’s wealth prior to the execution of this ante-nuptial

E-3

agreement. In the ante-nuptial agreement, the Movant

waives her rights to any possible elective share, year’s

support, homestead or exempt property which she may

statutorily possess at the time of the Deceased’s death.

Mr. Davis died on May 9, 2002. On May 15, 2002 the

Co-Executors filed a Petition to Probate the Will of J.D.

Davis in this Court. On December 5, 2002 the Movant filed

a Petition for Elective Share, Exempt Property, Home-

stead, and Year’s Support Allowance. The Co-Executors

filed a responsive pleading in which they stated that the

ante-nuptial agreement entered into by the parties barred

such a petition. On April 23, 2003, the Honorable Frank G.

Clement, Jr. agreed with the Estate and entered an Order

on the Estate’s Motion for Summary Judgment, dismissing

the Movants’ Petition for Elective Share, Exempt Property,

Homestead, and Year’s Support Allowance. A Notice of

Appeal was filed by the Movant and the Court of Appeals

reversed the trial court finding that this ante-nuptial

agreement was not enforceable in Tennessee, because it

violated the public policy of this state. The Court of Ap-

peals held that under Tennessee law, a full financial

disclosure was required prior to the execution of such

document and that this ante-nuptial agreement did not

satisfy this requirement. An Application for Permission to

Appeal to the Tennessee Supreme Court was then filed by

the Estate. That Application was denied by the Tennessee

Supreme Court. Subsequently, the Estate filed a Petition

for Rehearing with the Tennessee Supreme Court which

was also denied. The Estate has now filed a Petition for

Writ of Certiorari to the United States Supreme Court.

The Estate has also filed the Florida lawsuit seeking to

have the Florida Circuit Court of Palm Beach County

enforce the questioned ante-nuptial agreement.

E-4

This Court will first address the issue of the appropri-

ateness of removing the Co-Executors. During the hearing

on'this Motion, this Court ruled from the bench that the

Movant had not carried the significant burden required to

compel this Court to remove a fiduciary. Tennessee Code

Annotated § 35-15-706 pertains to the removal of an

Executrix. The statute contains in part:

(a) The settlor, a cotrustee, or a qualified beneficiary

may request the court to remove a trustee, or a trus-

tee may be removed by the court on its own initiative.

(b) The court may remove a trustee if:

(1) The trustee has committed a serious breach of

trust;

(2) Lack of cooperation among cotrustees substan-

tially impairs the administration of the trust;

(3) Because of unfitness, unwillingness, or persistent

failure of the trustee to administer the trust effectively,

the court determines that removal of the trustee best

serves the interests of the beneficiaries; or

(4) There has been a substantial change of circum-

stances or removal is requested by all of the qualified

beneficiaries, the court finds that removal of the trus-

tee best serves the interests of all of the beneficiaries

and is not inconsistent with a material purpose of the

trust, and a suitable cotrustee or successor trustee is

available.

T.C.A. §§ 35-15-706

This Court finds that none of the specified reasons for

removal of an Executrix have been satisfied at this time.

The remaining issue this Court now discusses deals

with the dismissal of the pending lawsuit in the Florida

E-5

Circuit Court. In light of the pending Petition for Writ of

Certiorari to the United States Supreme Court, the Court

finds it would be imprudent to dismiss the lawsuit in

Florida. The Court does not want to upset the tenuous

postures in which the parties are presently situated due to

this Writ of Certiorari, thus, this Motion to Dismiss is

denied.

This Court maintains proper jurisdiction over the

Probate Estate of J.D. Davis and the Co-Executors of such

Estate. J.D. Davis was domiciled in Davidson County,

Tennessee at the time of his death, as evidenced by the

Petition to Probate the Will of J.D. Davis filed by the Co-

Executors. The Co-Executors submitted themselves to the

jurisdiction of this Court upon their application and

acceptance of appointment to their fiduciary roles. An

Executor properly qualified before this Court acts as an

officer of this Court and is authorized to act by this Court.

Pritchard on Wills and Administration of Estates §36 (5th

ed. 2004). This Court has the authority and responsibility

to oversee the administration of all estates.

Tennessee Rules of Civil Procedure 62.07 affords this

Court the discretion to order a stay of proceedings in

exceptional cases as the court deems proper. With a

pending Writ to the U.S. Supreme Court which will bring

a final resolution to the appropriateness of the appellate

orders of this state, this Court finds that this is an excep-

tional circumstance which warrants a Stay of Respondents

lawsuit pending in Florida. This Court finds that a tempo-

rary injunction shall issue against the Co-Executors of this

Estate in accordance with TRCP 65.04 which restrains

and enjoins them from pursuing the Florida litigation

without prior approval from this Court and shall remain

in effect pending further orders of this Court.

IT IS SO ORDERED.

/s/ Randy Kennedy

Judge Randy Kennedy

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 26th day of

August, 2005, a true and correct copy of the foregoing

Memorandum Opinion and Order was forwarded to all

of the following counsel of record:

Overton Thompson, III

Blaine Smith :

Bass, Berry & Sims PLC

315 Deaderick Street

Suite 2700

Nashville, TN 37238

Richard D. Bird

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Commerce Center, Suite 1000

211 Commerce Street

Nashville, TN 37201

J. Thomas Martin

Gordon, Martin, Jones & Harris

49 Music Square West

Nashville, TN 37203

William Harbison

Sherrard & Roe

424 Church Street

Suite 2000

Nashville, TN 37219

/s/ Ruth Lester

Deputy Clerk

F-1

IN THE CIRCUIT COURT OF

THE 15TH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH

COUNTY, FLORIDA

CASE NO.:

50 2005 CA 006716 XXXX MB

J. DOUGLAS DAVIS AND

JULIE ANN DAVIS

GRIFFIN, as co-executors

of the estate of J.D. Davis,

deceased,

Plaintiffs,

vs.

DOROTHY L. DAVIS,

Defendant. /

DEFENDANT’S MOTION TO ENLARGE

TIME TO RESPOND TO COMPLAINT

(Filed Sep. 27, 2005)

Defendant, Dorothy L. Davis, moves pursuant to Rule

1.090 of the Florida Rules of Civil Procedure to enlarge the

time within which she must respond to the complaint in

this action, and states:

Background

1. As alleged in the complaint, the plaintiffs are the

co-executors of the estate of J.D. Davis pending in the

Seventh Circuit Court for Davidson County, Tennessee, -

Probate Division, Case Number 02P-859. (Compl. at { 1).

2. The defendant is the widow of J.D. Davis, the

decedent in the Tennessee probate proceeding.

F-2

3. Plaintiffs’ claims in this action are part of their

effort to enforce an ante-nuptial agreement which the

defendant allegedly entered with the decedent.

4. On September 2, 2004 — before the plaintiffs filed

this action in Florida — the Tennessee Court of Appeals

held that the ante-nuptial agreement was unenforceable

in the Tennessee probate proceeding. The Tennessee

Supreme Court twice denied review of the decision of the

Tennessee Court of Appeals.

5. Subsequently, on July 19, 2005, the plaintiffs filed

this Florida action alleging a breach. of the same ante-

nuptial agreement which, approximately ten months

before, the Tennessee Court of Appeals declared unen-

forceable. The plaintiffs also filed a petition for writ of

certiorari in the United States Supreme Court seeking to

overturn the decision of the Tennessee Court of Appeals.

The plaintiffs’ certiorari petition remains pending.

6. After the plaintiffs filed this action in Florida, the

defendant filed a motion in the Tennessee probate proceed-

ing seeking to compel the plaintiffs to dismiss this action.

At nearly the same time, the plaintiffs filed a motion with

the Tennessee Court of Appeals to stay the Tennessee

proceedings pending a ruling on their petition to the

United States Supreme Court.

7. Inthe meantime, the parties agreed to enlarge the

time for the defendant to respond to the complaint in this

Florida action. Pursuant to the parties’ agreement, the

defendant’s response to the complaint filed in this action

was to be served no later than thirty days after entry of an

order on either the defendant’s motion to compel or the

plaintiffs’ motion to stay.

F-3

The Tennessee Injunction

8. On August 26, 2005, the Tennessee probate court

enjoined the plaintiffs from pursuing this Florida action

until further order of the Tennessee probate court. Also,

the Tennessee Court of Appeals denied plaintiffs’ motion to

stay the Tennessee probate proceeding.

9. Accordingly, the plaintiffs - whose authority as co-

executors of the estate of J.D. Davis is governed by the

Tennessee probate court — are prohibited from prosecuting

this Florida action pending a further ruling from the

Tennessee probate court. /

An Enlargement Of Time Is Appropriate

10. Rule 1.090(b) of the Florida Rules of Civil Proce-

dure permits a court to enlarge the time within which an

act is required for good cause.

11. In light of the plaintiffs’ current inability to

prosecute this action, good cause exists to enlarge the time

within which the defendant must respond to the complaint

in this action.

12. The requested enlargement will preserve the

parties’ and the Court’s resources and is consistent with

the injunction entered by the Tennessee probate court.

13. If and when the injunction is lifted, the parties can

litigate the issues raised by the complaint, including whether

the plaintiffs are entitled to bring an action in Florida to

enforce the ante-nuptial agreement that was previously

declared unenforceable by the Tennessee Court of Appeals.

WHEREFORE, the Defendant, Dorothy Davis, respect-

fully requests that this Court enter an order enlarging the

F-4

time within which she must respond to the complaint so that

her response is due to be served no later than thirty days

after the Tennessee probate court lifts the current injunction

which prohibits plaintiffs from prosecuting this action.

Respectfully submitted,

SQUIRE, SANDERS & DEMPSEY, LLP

1900 Phillips Point West

777 South Flagler Drive

West Palm Beach, Florida 33401

tel: 561.650.7213

fax: 561.655.1509

Counsel for Defendant

/s/ J.B. Murray

John B.T. Murray, Jr.

Florida Bar Number 962759

jbmurray@ssd.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing was sent via regular mail to the following on

this 26th day of September, 2005:

Arnold L. Berman, Esquire

SHUTTS & BOWEN LLP

One Clearlake Centre

250 Australian Avenue South

Suite 500

West Palm Beach, Florida 33401

Counsel for Plaintiffs

/s/ J.B. Murray

J.B. Murray

No. 05-162

: In The

Supreme Court of the Gnite

Vv

ESTATE OF J. D. DAVIS AND J. DOUGLAS DAVIS

AND JULIE ANN DAVIS GRIFFIN, CO-EXECUTORS,

Petitioners,

-

DOROTHY L. DAVIS,

Respondent.

,

Vv

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Tennessee,

Middle Section At Nashville

¢

REPLY TO BRIEF IN OPPOSITION

¢

RICHARD D. BIRD THOMAS O. HELTON

SHERI A. Fox Counsel of Record

BAKER, DONELSON, BAKER, DONELSON,

BEARMAN, CALDWELL & BEARMAN, CALDWELL &

BERKOWITZ, P.C. BERKOWITZ, P.C.

1800 Republic Centre 1800 Republic Centre

633 Chestnut Street 633 Chestnut Street

Chattanooga, TN 37450-1800 Chattanooga, TN 37450-1800

423-756-2010 423-756-2010

and

JAMES F. BLUMSTEIN

VANDERBILT UNIVERSITY

SCHOOL OF LAW

131 21st Avenue South

Nashville, TN 37203

615-322-0045

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

RESPONDENT HAS FAILED TO EXPLAIN WHY

THIS CASE IS NOT DESERVING OF REVIEW... 1

THIS COURT HAS JURISDICTION

A. The Full Faith and Credit Clause Issue Was

Properly Raised Below

B. The Decision of the Court of Appeals was

ii

TABLE OF AUTHORITIES

CASES:

- Adams v. Robertson, 520 U.S. 83 (1997)

Allenberg Cotton Co., Inc. v. Pittman, 414 U.S. 1109

Cohen v. Beneficial Industry Loan Corp., 337 U.S.

541 (1949)

Construction & General Laborers’ Union v. Curry,

371 U.S. 542 (1963)

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

Flynt v. Ohio, 451 U.S. 619 (1981)

Franchise Tax Bd. v. Hyatt, 538 U.S. 488 (2003)

Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108

Green Bay & Mississippi Canal Co. v. Patten Paper

Co., 172 U.S. 58 (1898)

Hughes Tool Co. v. TWA, Inc., 409 U.S. 363 (1973)

Hughes v. Fetter, 341 U.S. 609 (1951)

In re Bulova’s Will, 220 N.Y.S.2d 541 (App. Div.

Marshall v. Marshall, 392 F.3d 1118 (9th Cir. 2004)

Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555

(1963)

TABLE OF AUTHORITIES — Continued

North Dakota St. Bd. of Pharmacy v. Snyder’s Drug

Stores, 414 U.S. 156 (1973)

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

(1945)

Sun Oil Co. v. Wortman, 486 U.S. 717 (1988)

Yee v. City of Escondido, 503 U.S. 519 (1992)

OTHER AUTHORITIES

Rule 14.1(g)(i)

Ruth B. Ginsburg, Judgments in Search of Full

Faith and Credit: The Last-in-Time Rule for

Conflicting Judgments, 82 HARV. L. REv. 798,

823 (1969)

28 U.S.C. §1257(a)

1

RESPONDENT HAS FAILED TO EXPLAIN WHY

THIS CASE IS NOT DESERVING OF REVIEW

In their Petition, Petitioners asserted that “FFC

places limits on the ability of a state to apply its ‘public

policy’ to defeat claims originating from other states.” (Pet.

at 17) In her Brief in Opposition (BIO), Respondent ac-

knowledges this critical threshold point: “[T]here are

certain limits on a state’s power to pursue its public policy

by applying its own law.” (BIO at 19) The rest of the sub-

stantive component of Respondent’s BIO is a merits brief.

Respondent acknowledges that a key issue is whether

Tennessee “is competent to legislate” on the matter in

issue, noting that “[t]his principle cuts forum states a wide

swath.” (BIO at 19) True ~ a wide but not unlimited swath,

and the precise contours of that swath are in need of

development and elaboration to avoid the kind of prolifera-

tion of litigation reflected in this proceeding. That is why

this case is certworthy, raising issues both of pragmatic

significance and far-reaching constitutional import. It

addresses the scope of a forum state’s ability to trump its

own choice-of-law rules by use of the deus-ex-machina

“public policy” doctrine — a doctrine that methodologically

does not consider or account for FFC analysis.

Petitioners seek review because “there has not been

much development regarding the ‘nature’ of ‘relevant’

contacts” under this Court’s FFC jurisprudence. The “Court

has rejected an approach to FFC that encompasses a

balancing of sovereign interests among competing states;”

this suggests that “determining how ‘to delimit spheres of

state legislative competence’” must be “more categorical in

character” (e.g., marital domicile). (Pet. at 26-28) This case

provides an excellent vehicle for addressing these funda-

mental aspects of FFC doctrine. (Pet. at 11-13, 16-28)

In this case, the Tennessee Court of Appeals did not

consider crucial elements of FFC analysis: (i) the nature of

2

Florida’s interest in giving effect to a reciprocal antenup-

tial agreement entered into in Florida, particularly when

the party seeking to breach that agreement is, by her own

choice (a choice not available at common law), a Florida

domiciliary; (ii) the nature and relevance of Tennessee’s

interest in abrogating the reciprocal antenuptial agreement

because of purported lack of disclosure; (iii) the competence

of Tennessee to legislate protectively (i.e., substantively) on

behalf of a non-domiciliary when that domiciliary’s jurisdic-

tion has expressly chosen to enforce antenuptial agree-

ments even without asset disclosure; and (iv) fairness

considerations — the expectations of the parties — that

comprise an important component of FFC analysis.

The result of the Court of Appeals’ decision is to upset

the expectations of this couple — to provide for their own

children through their own resources. The decision also

turns a symmetrical agreement — each spouse’s children

look to the resources of their parent — into a strikingly

asymmetrical agreement: Ms. Davis’ children maintain

their financial protection under the agreement but Mr.

Davis’ children do not. Had Ms. Davis pre-deceased Mr.

Davis, her domiciliary status in Florida would have

assured that her will was probated in Florida, and the

Florida courts would have (properly) given effect to the

antenuptial agreement against any putative claim by Mr.

Davis or his children.

None of these factors was considered or, methodologi-

cally, could be considered under the Court of Appeals’

approach. Review is needed by this Court to clarify the

“nature” of “relevant” factors in FFC analysis and how to

incorporate FFC fairness considerations into the analysis.

On the merits, Respondent echoes both Dr. Pangloss

and Chicken Little. The Panglossian dimension is that the

case is controlled by recent precedent. (BIO at 17) The

Chicken Little dimension is the plea not to unsettle

“succession law.” (BIO at 27) Neither stance is apropos.

This Court’s recent precedent does not render the

matter uncertworthy. The concession (BIO at 19) that

3

limits to state authority exist under FFC and that the

Tennessee decision can only be sustained if Tennessee is

competent to legislate on the matter indicates that the

issue of competence to legislate herein is the critical issue

for review; no cited (or uncited) case has resolved that

question. Indeed, this case presents the very case foreseen

and not addressed in Franchise Tax Bd. v. Hyatt, 538 U.S.

488, 499 (2003) — “a case in which a State has exhibited a

‘policy of hostility to the public Acts’ of a sister State.”

Respondent asserts that Tennessee has “particularly

significant” interests in the “institution of marriage.” But

this case does not involve the law of wills. It is about the

validity of a pre-marital contract that, under Tennessee

choice-of-law principles, would normally be governed by

Florida law. Respondent wonders what Florida’s interest

in enforcing the antenuptial agreement is when enforce-

ment “diminish[es] the take of one of its domiciliaries.”

(BIO at 23) This speaks volumes about Respondent’s view

of her marital obligations, about the “trust and confidence”

she “bring[s] to the institution of marriage.” (BIO at 22)

The nature of Florida’s interest will be developed upon

plenary review (if granted), but a state like Florida that

consciously promotes reciprocal antenuptial agreements

without asset disclosure has strong interests in giving

effect to those agreements, even when, in a particular case,

one of its domiciliaries faces a short-term disadvantage

from enforcement. Just by posing the question, Respondent

demonstrates that different states may have different

interests with respect to domiciliaries than non-

domiciliaries, something that the Court of Appeals’ decision

did not consider (and had no methodology for considering).

Nothing in this case will unsettle “succession law.”

Respondent’s cases (BIO at 25-27) can be explained as

applying forum rules of procedure — rules regarding oral

evidence and the formalities of executing an agreement.

This Court has adopted the procedure/substance distinc-

tion in FFC cases, allowing forum states to apply their

own rules of procedure. Sun Oil Co. v. Wortman, 486 U.S.

4

717 (1988). The issues herein are not procedural but

substantive — Tennessee’s ability to give effect to protective

policies for non-domiciliaries when the law of the non-

domiciliary’s jurisdiction applies under forum choice-of-law

rules and when the non-forum jurisdiction does not recog-

nize those protective policies. (Pet. at 21-22) How forum

states must treat out-of-state contracts when the party

seeking protection is a married non-domiciliary is quite

unsettled’ and is a reason for this Court’s granting review.

.THIS COURT HAS JURISDICTION

Respondent asserts that this Court lacks jurisdiction

for two reasons: (i) the constitutional issues were not

raised in the state courts; (ii) the decision below was not a

final judgment. Neither assertion withstands analysis.

A. The Full Faith and Credit Clause Issue Was

Properly Raised Below.

Lower courts need only be able to discern that “a

certain provision of the Constitution” was relied on by the

party seeking review. Green Bay & Mississippi Canal Co. v.

Patten Paper Co., 172 U.S. 58, 68 (1898). Respondent ac-

knowledges that Petitioners “did, in fact, raise a Full Faith

and Credit [FFC] claim.” (BIO at 11) That is sufficient.

: Respondent asserts that the FFC claim, as argued

below, was “strikingly different” than the FFC claim raised

in the Certiorari Petition. (BIO at 11) This is immaterial.

“Once a federal claim is properly presented, a party can

make any argument in support of that claim; parties are

not limited to the precise arguments they made below.” Yee

’ In re Bulova’s Will, 220 N.Y.S.2d 541 (App. Div. 1961), which dealt

with the formalities in executing an agreement (a matter of procedure),

both spouses were New York domiciliaries. Even in that context, the court

recognized that the resolution of the issues might be different if the

parties were non-domiciliaries. Jd. at 547 n.3. In this case, Respondent is

now and has always been a domiciliary of Florida, not Tennessee.

5

v. City of Escondido, 503 U.S. 519, 534 (1992). Petitioners

are permitted to make “separate arguments in support of a

single claim.” Jd. at 535. Thus, having raised the FFC

issue below, Petitioners may “formulate[] any argument

they like[] in support of that claim here.” Id.

Petitioners properly raised an FFC claim and did

much more than the minimum required. They raised the

FFC issue in the Court of Appeals. (Appellees’ Brief at 12-

13, App. A-2) (noting that Tennessee must give FFC to acts

of other states). No decision had called FFC into question

at that time, yet the FFC constraints on reversing the trial

court’s summary judgment order were clearly before the

Court of Appeals. Respondent acknowledged this: -“Con-

trary to Appellees’ assertion, Tennessee courts are not

required to give full faith and credit to laws of another

state that are violative of clearly recognized Tennessee

public policy.” (Reply Brief of Plaintiff-Appellant at 10-12,

App. B-2)

Once the Court of Appeals ruled, thereby raising and

also clarifying the FFC issue, Petitioners included the FFC

claim as the first question presented for review in their

Application for Permission to Appeal to the Tennessee

Supreme Court. (Application for Permission to Appeal at

9-16, App. C-2) Petitioners asserted (citing authority) that

FFC places “limits” on the “extent to which the policy of

one state, in many respects sovereign, may be subordi-

nated to the policy of another.” (Jd. at 10, App. C-4) The

Court of Appeals’ decision had “constitutional infirmities”

under FFC. (Id. at 19, App. C-15)

That the FFC issue was before the Tennessee Su-

preme Court is also established by Ms. Davis’ response to

Petitioners’ Application for Permission to Appeal: The

estate’s executors “maintain that the Court of Appeals’

decision is unconstitutional in that it violates [FFC].... In

their presentation of the case law interpreting and apply-

ing [FFC], however, the Respondents/Appellants make an

important analytical error.” (Answer in Opposition to

6

Respondents/Appellants’ Application for Permission to

Appeal at 6, App. D-2; see also id. at 16-17, App. D-11’)

In short, the FFC issue was presented to and was

before the Tennessee courts in this matter.’

B. The Decision of the Court of Appeals was Final.

Respondent asserts that the finality rule has not been

satisfied. (BIO at 5-16) The cases do not support that claim.

The operative decision under review is that of the

Tennessee Court of Appeals. Where the highest court of a

state refuses to review the judgment of an inferior court, as

herein, the judgment of the inferior court becomes the final

judgment for purposes of review by this Court. Galilick v.

Baltimore & Ohio R. Co., 372 U.S. 108, 109 (1963).

For decades, this Court has given a “practical rather

than a technical construction” of 28 U.S.C.\§1257(a), Cohen v.

Beneficial Industry Loan Corp., 337 U.S. 541, 546 (1949),

using a “pragmatic approach” in determining finality. Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 486 (1975). In

determining finality, “the most important competing

considerations are ‘the inconvenience and costs of piece-

meal review on the one hand and the danger of denying

* Respondent asserts that Petitioners did not specify where and

‘when the FFC issue was raised below. (BIO at 16-17) Any such omission

is curable and the details provided above effect that cure. In Adams v.

Robertson, 520 U.S. 83, 89 n.3 (1997), the Court treated the require-

ments of Rule 14.1(g)(i) as curable, even at the merits stage (but not

therein cured). The specification in this Reply Brief either comports

with the requirements of Rule 14.1(gXi) as occurring at the Certiorari

stage or effectively cures any omission by providing the detailed

required information.

* To the extent that there remains any ambiguity on this issue —

and there should be none — this Court should provide Petitioners with

an opportunity to seek a Certificate from the ‘Tennessee courts attesting

to the fact that the FFC issue was presented to and properly before

them. For a case following that procedure, see Allenberg Cotton Co., Inc.

v. Pittman, 414 U.S. 1109 (1973); 419 U.S. 20 (1974).

7

justice by delay on the other.’” Gillespie v. United States

Steel Corp., 379 U.S. 148, 152-53 (1964). The costs of delay

in this matter are considerable, potentially draining the

estate’s assets through litigation expenses. Cf. Marshall v.

Marshall, 392 F.3d 1118 (9th Cir. 2004), cert. granted, No.

04-1544; Hughes Tool Co. v. TWA, Inc., 409 U.S. 363, 364

n.1 (1973): id. at 389-393 & n.10 (Burger, C.J., dissenting)

(noting extraordinary expense and inefficiency from

failure to resolve threshold issue of federal law, with Court

dismissing certiorari and remanding for trial, and then

holding that entire litigation was for naught because

federal law granted immunity). Respondent proposes an

approach with high litigation costs and the risk of conflict-

ing multi-jurisdictional judgments as in Marshall, which

this Court will review. But (like most) this estate is -with-

out the resources of that one..

In Cohen, a case with choice-of-law issues analogous

to those herein, the issue was whether a state fee-shifting

statute applied in a federal court sitting in diversity.

Cohen v. Beneficial Industry Loan Corp., 337 U.S. 541,

543-44. The District Court held not, declining to require

security; the Court of Appeals reversed. Jd. at 545. Even

though the case had not proceeded beyond the security

issue, this Court granted review. Id. at 546-47. The claims

were from a “final disposition” of a discrete federal choice-

of-law question — whether the state statute was substan-

tive or procedural in a diversity action. It serves the policy

of 28 U.S.C. §1257(a) for this Court to determine such

discrete threshold federal issues as choice-of-law, jurisdic-

tion, or venue — matters “anterior to the merits” — so that

litigants are not subjected “to long and complex litigation

which may all be for naught if consideration of the pre-

liminary question ... is postponed until the conclusion of

the proceedings.” Mercantile Natl Bank v. Langdeau, 371

U.S. 555, 558 (1963) (regarding venue); see also Construc-

tion & General Laborers’ Union v. Curry, 371 U.S. 542,

548-50 (1963) (regarding state court jurisdiction).

8

Respondent’s position, that review is premature,

would put the parties to great and needless expense and

run the “danger of denying justice by delay.” Gillespie, 379

U.S. at 153. “Immediate rather than delayed review would

be the best way to avoid ‘the mischief of economic waste

and of delayed justice.’” Cox, 420 U.S. at 477-78. If unre-

viewed, the Court of Appeals’ decision may result in

further proceedings in Tennessee under an unconstitu-

tional choice-of-law principle; simultaneously, it has

spurred litigation by the estate in Florida that is likely

unnecessary if Florida law ‘controlled the Tennessee

litigation. And it is doubtful that Respondent can prevent

the Florida litigation from proceeding. See Ruth B. Gins-

burg, Judgments in Search of Full Faith and Credit: The

Last-in-Time Rule for Conflicting Judgments, 82 Harv. L.

REV. 798, 823 (1969).

Contrary to Respondent’s assertion, the related but

separable Florida litigation does not deprive the Court of

Appeals’ decision of finality. Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 125 (1945). All that Tennessee can

decide is that the antenuptial agreement is unenforceable

in Tennessee, not that it is invalid or unenforceable in

Florida. What lack of review will do, however, is leave

intact and unscrutinized a troubling choice-of-law prece-

dent that will continue to bind these proceedings in

Tennessee. Since that decision may avoid review, “the

battle over the constitutionality” of the decision could be

“lost as far as this case is concerned.” North Dakota St. Bd.

of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156, 163

(1973); Cox, 420 U.S. at 485-86 & n.13. Such a decision is

final. It leaves intact an erroneous FFC judgment on an

important matter of federalism. Hughes v. Fetter, 341 U.S.

609, 611-12 (1951).

Where additional proceedings are to occur, finality

exists when, as here, there is a “final judgment on the

federal issue for purposes of state-court proceedings,” and

there are “no other federal issues to be resolved.” This

assures that there is “no probability of piecemeal review