In the dark, wood-paneled chamber where the state Court of Appeals and the state Supreme Court regularly conduct their business, wealthy businessmen Fritz Ingram and Bill Earthman continued their increasingly timeworn war this week.
At stake is a $6 million judgment that a Davidson County jury ordered Earthman to pay Ingram a year ago. Ingram had filed suit against Earthman, claiming that Earthman had never repaid a loan that Ingram had made to him. When the decision was handed down, it was the stuff of banner headlines and delicious gossip among denizens of the city’s tonier set.
Not only did the case bring the private affairs of wealthy operators into public view, it was also filled with the stuff of John le Carré novels: a $100 million Swiss bank account, a farm in the patrician summer retreat of Beersheba Springs, and a vast amount of money, being transferred through various foreign channels. In the end, as in a good novel, the plot line unraveled from witness to witness and re-emphasized the universal theme that money can destroy almost anything, including friendship.
Ingram’s lawyer, Jim Doramus, and Earthman’s counsel, Maclin Davis, were well aware of the stakes when they made their arguments this week. The case is on appeal. Oral arguments were presented before the three judges sitting on the state Court of Appeals.
Davis hinges his appeal on several arguments, one of which is that the note that Earthman owed to Ingram was not actually owned by Ingram. Davis argued that the note was “held” by someone else in a trust in Switzerland, and he argued that Ingram himself had once testified that he did not own the trust. If such is the case, and if somebody else owned the note, Ingram was not owed anything.
Davis also argued that the case should simply be thrown out, due to the fact that the statute of limitations has expired. That six-year time limit, Davis argued, ran out April 14, 1988. (The loan was made Oct. 14, 1980, and was due in 18 months, which means the loan’s due date was April 14, 1982.)
As expected, Doramus made the argument that “holder” or not, Ingram, and Ingram alone, should receive the money. Almost as an aside during the day’s arguments, Doramus claimed that since the lower-court ruling, Earthman has moved more than $2 million of his assets out of his own estate, an action that, Doramus argued, was in clear violation of a court order. Doramus’ intention is to demonstrate that Earthman was trying to shield his assets so that Ingram can’t get hold of them.
After the hearing, Earthman and Davis paused in the lobby of the Supreme Court building. One of the most respected jurists in the city and a man who has practiced law for longer than most of his fellow attorneys, Davis reviewed the events of the day. Pondering the reactions of one particular judge, Davis said, “For a while, I thought he agreed with me. Then, I didn’t know.”
He said it like someone who had been around for a long time.
Wind in the pines
Meanwhile, the Supreme Court on Monday ordered the opening of court records in a case that TV advertisements once made a household word: Kirby Pines.
In case you don’t remember, in 1994 the lawsuit against Kirby Pines threatened to soil the reputation of Republican gubernatorial candidate Don Sundquist. Sundquist was once a volunteer board member of the non-profit agency that owned the Kirby Pines, a retirement center near Memphis. The lawsuit against Kirby Pines had charged the center’s owners with paying huge management fees, making bad loans, and attempting to stifle the questions of residents who asked where their money was going.
At the time the alleged mismanagement took place, Sundquist was a congressman from the state’s seventh congressional district, which includes part of Memphis. Then-Democratic gubernatorial nominee Phil Bredesenbeing the diligent campaigner that he was, and being a man who has never shied away from running a negative television spotbought hundreds of thousands of dollars in TV ads and direct mail attacking Sundquist’s involvement in the center. There was never any smoking gun, but Bredesen was able to hype what facts there were into something that suggested real rottenness.
One of the reasons that there were so few facts available was that the court records in the case had been kept closed. A Shelby County judge placed them under a “protective order” in 1990, just as the case was first being heard. The state Court of Appeals later debated the matter of opening or closing them while the gubernatorial campaign raged. Both Bredesen and Sundquist maintained that the records should be opened. But, once again, the Court of Appeals ruled that the records should be kept confidential.
This week’s ruling from the Supreme Court opens most of the records. All sorts of of repeated charges and countercharges have followed. In the Commercial Appeal of Memphis, state Democratic Party Chairman Will T. Cheek was quick to jump on the decision, stating that “it will become clear that Sundquist either was not exerting proper oversight while on the board...or he clearly misled Tennesseans about the financial condition of Kirby Pines during the 1994 election.” Meanwhile, Sundquist spokeswoman Beth Fortune stated that the governor welcomed “the scrutiny of the records and of Kirby Pines” and said that the governor would not get “into a running debate with chairman Cheek and his mumbo jumbo.”
Among the newly released records, according to the Commercial Appeal, is a financial statement indicating that the facility had a $9.5 million fund balance deficit.
With another gubernatorial campaign set to kick off in a little over a year, it is expected that the records are going to be photocopied quite a few times during the coming months. Count on seeing a lot of Democrats lined up at the copy machines.
When gray heads collide
The Commission on the Future of the Tennessee Judicial System, chaired by former Tennessean publisher John Seigenthaler, released its report last week. The report recommended truth in sentencing, abolition of the bail-bond system, and consolidation of a number of courts. In addition, the report recommended the appointment, rather than the election, of trial court judges, including those in the juvenile, chancery, circuit and criminal courts.
In another arena, Seigenthaler’s old friend John Jay Hooker has filed suit challenging the constitutionality of the process by which the state’s appellate judges are selected. His suit challenges the so-called “modified Missouri Plan,” under which the judges are appointednot elected. If judges seek re-election, their names simply appear on the ballot, and voters either vote for or against them. Their only opponents are themselves.
“The twin spires to freedom are the free press and free elections,” Hooker said this week. “And the system of permitting governors and lawyers to appoint judges is as repulsive to freedom as it would be to have a group of lawyers decide what you can and cannot print.” In other words, Hooker doesn’t like lawmakers and political powerbrokers having a say in who becomes a judge. He wants the people to make that decision.
Nashville lawyer Lewis Laska has filed a suit similar to Hooker’s. Both men find themselves at cross-purposes with the proposal made by the Seigenthaler panel. Seigenthaler has argued, correctly, that to subject judges to campaigns makes them rely excessively on raising campaign money. Oftentimes, the money they raise comes directly from the sources who have the most influence in the courtroomnamely, attorneys. And that involvement presents a clear conflict.
Hooker, for his part, is aware of such facts. As far as he is concerned, however, the dilemma is one of having to destroy the village in order to save it. He contends that opening up all judicial seats to election would focus public attention on the obvious fact that the campaign system is rotten and corrupt, little more than legalized bribery. Once the public is made aware of that fact, Hooker says, the need for public financing of campaigns will become evident, and the state Legislature and Congress will address the issue.
The Hooker and Laska cases were dismissed in the lower courts.
Now the Supreme Court has been asked to get involved. The Supreme Court judges have been asked to “recuse” themselves from the case. The idea is that, because they have a direct interest in how the case turns out, they cannot issue an objective ruling.
If the Supreme Court recuses itself, the governor will have to appoint a new five-member panel to hear the case. And then, most certainly, all hell will break loose.
In the otherwise banal Supreme Court chambers, Earthman and Ingram are arguing. Kirby Pines is blowing in the wind. And John Jay Hooker is trying to explode the place.
Fun for all, and the best free ticket in town.
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