                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      JULY 19, 2007 Session

     MOORE FAMILY PROPERTIES, LLC, ET AL. v. PULL-A-PART OF
                   TENNESSEE, LLC, ET AL.

                   Direct Appeal from the Chancery Court for Shelby County
                     No. CH-06-0451 Kenny W. Armstrong, Chancellor



                   No. W2007-00457-COA-R3-CV - Filed November 28, 2007


This appeal involves a review of actions taken at a meeting of the Memphis City Council. When the
council members voted on a resolution, for unknown reasons, the electronic voting machine did not
record an entry for one of the council members. This resulted in six votes being cast in favor of the
measure and six votes against it. The omitted council member orally expressed his intention to vote
in favor of the resolution before the Chairman announced the result of the vote. The Chairman then
called for the electronic voting machine to be cleared so that all members could re-enter their votes.
After the second vote, the Chairman declared that the resolution passed by a vote of seven to six.
The appellants filed a petition for a writ of certiorari in the chancery court, alleging that the first vote
was final and that the City Council acted illegally by taking a second vote. Upon review of the
record of the proceedings, the trial court granted summary judgment to the City of Memphis and the
Memphis City Council. We affirm.


     Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

David Wade, J. Lewis Wardlaw, Memphis, TN, for Appellants

Allan J. Wade, Lori Hackleman Patterson, Brandy S. Parrish, Memphis, TN, for Appellee, City of
Memphis and Memphis City Council
                                                       OPINION

                                     I. FACTS & PROCEDURAL HISTORY

        At its January 3, 2006 meeting, the Memphis City Council considered a resolution to approve
a proposed planned development that would allow Pull-A-Part of Tennessee, LLC, to operate a self-
service auto salvage yard located along Farrisview Road (the “Development”). Councilman Rickey
Peete moved for the resolution’s approval. The Council heard comments from the applicant and
from citizens opposing the Development, and a member of the local Office of Planning and
Development discussed its recommendations. Council members then asked questions and further
discussed the Development. At the conclusion of the discussion, the Council Chairman asked the
council members to cast their votes on the resolution.

        The Memphis City Council uses an electronic voting device to cast votes, and council
members may choose “Yea,” “Abstain,” or “Nea” when voting. There are two large screens located
on either side of the Council Chamber, which display an alphabetical list of the council members’
names. When a council member votes, his or her name is illuminated and the vote is displayed. An
electronic voice then reads the council member’s names in alphabetical order and reads their votes.
After reading the list, the electronic voice recites the total votes cast for or against the measure.

        On this particular vote, the voting machine recorded six votes for the resolution and six votes
against the resolution, but it did not record an entry of “Yea,” “Nea,” or “Abstain” for Councilman
Peete. An audio tape recording of the meeting reflects some noise or commotion arising as the
electronic voice was reading the list of votes of the council members, and some council member
stating, “Okay Rickey.” When the electronic voice concluded its recitation, Councilman Peete
immediately stated, “Madam Chairman, please show me voting yes on this item.” The Chairman
then asked the Comptroller to clear the ballot so that the council members could vote again. A
representative of those opposing the Development objected to the Council’s taking another vote.
The Chairman again told the Comptroller to clear the previous votes from the machine because she
“did not call the vote.” The Chairman then asked all council members to please vote and to stay in
their seats.1 This time, the electronic voting machine recorded seven votes in favor of the
Development and six votes against it; therefore, the resolution passed.

        On March 3, 2006, Moore Family Properties, LLC, and Roy Enterprises, LLC (“Appellants”),
as neighboring property owners opposing the Development, filed a petition for writ of certiorari in
the Chancery Court of Shelby County. The petition alleged that the Memphis City Council’s actions
in taking a second vote were illegal, arbitrary, capricious, and not conducted in the manner required
by proper procedure.



         1
             Counsel for the City of Memphis and the Memphis City Council suggests that Councilman Peete was not in
his seat when the initial votes were cast, which is why the Chairman directed the Councilmembers to vote again and to
stay in their seats. There is nothing in the record beyond the Chairman’s statement to support or discredit this suggestion.


                                                            -2-
        The City of Memphis and the Memphis City Council filed a motion for summary judgment.
In Appellants’ response, they stated that they did not seek to challenge the “intrinsic merits” of the
Development proposal, but instead challenged the “unauthorized actions taken by the Council in
approving the Development by an illegal vote.” Appellants basically claimed that when the
electronic voting device recorded the first votes cast by the council members, the vote immediately
became final because it was “announced” by the display screens and by the electronic voice. After
reviewing the record of the proceedings before the Memphis City Council,2 including audio tapes
of the proceedings, the Council’s Rules of Procedure, and affidavits, the trial court granted summary
judgment to the City of Memphis and Memphis City Council. The trial court’s order includes the
following findings:

                   1.       That no vote of the Council is final until the Chairman of the
                            Council meeting announces the result of the vote.
                   2.       That the second vote of the Council was procedurally correct.
                   3.       That the Council did not act arbitrarily, capriciously or
                            illegally in approving the Pull-A-Part planned development.

The order granting summary judgment to these parties was made final pursuant to Tenn. R. Civ. P.
54.02.3 Appellants filed a motion to alter or amend, which was denied, and then filed a timely notice
of appeal.

                                              II. ISSUES PRESENTED

Appellants present the following issue for review, which we slightly restate:
Whether the trial court erred in granting summary judgment, finding that the second vote was legally
and procedurally correct because the first vote was not final until announced by the Chairman.
For the following reasons, we affirm the decision of the chancery court.




         2
             To issue a writ of certiorari means to order the lower tribunal or administrative agency to send the record
made in the lower proceedings to the court for review. Davis v. Shelby County Sheriff's Dep’t, No. W 2006-00980-
COA-R3-CV, 2007 W L 609159, at *3, n.2 (Tenn. Ct. App. Feb. 28, 2007) (citing Gore v. Tenn. Dep’t of Correction,
132 S.W.3d 369, 375 (Tenn. Ct. App. 2003)). Upon receipt of the record, the court then determines whether the
petitioner is entitled to relief. Id. (citing Jeffries v. Tenn. Dep’t of Correction, 108 S.W .3d 862, 868 (Tenn. Ct. App.
2002)). Therefore, it appears that the trial court in this case granted the petition for writ of certiorari and subsequently
determined that Appellants were not entitled to relief.

         3
            The applicant seeking approval of the Development, Pull-A-Part, LLC, was also named as a defendant in
Appellants’ petition for writ of certiorari. Pull-A-Part filed a motion to dismiss the claims against it, but the record is
unclear as to whether the motion has been addressed by the trial court.


                                                            -3-
                                  III.   STANDARD OF REVIEW

        Administrative determinations, judicial and quasi-judicial in nature, which are accompanied
by a record of the evidence produced and the proceedings had, are properly reviewed by a writ of
certiorari. Thompson v. Dep’t of Codes Admin., Metro. Gov’t of Nashville and Davidson County,
20 S.W.3d 654, 659 (Tenn. Ct. App. 1999) (citing Fallin v. Knox County Bd. of Comm’rs, 656
S.W.2d 338, 342 (Tenn. 1983)). The action of the Memphis City Council giving approval to a
planned development was administrative rather than legislative in nature, and any challenge to such
action is by writ of certiorari. McCallen v. City of Memphis, 786 S.W.2d 633, 634 (Tenn. 1990).
Common law certiorari is provided for in Tenn. Code Ann. § 27-8-101 (2000) as follows:

               The writ of certiorari may be granted whenever authorized by law,
               and also in all cases where an inferior tribunal, board, or officer
               exercising judicial functions has exceeded the jurisdiction conferred,
               or is acting illegally, when, in the judgment of the court, there is no
               other plain, speedy, or adequate remedy. This section does not apply
               to actions governed by the Tennessee Rules of Appellate Procedure.
Therefore, review under the common law writ is limited to whether the inferior board or tribunal has
(1) exceeded its jurisdiction, or (2) acted illegally, arbitrarily, or fraudulently. McCallen, 786
S.W.2d at 638 (citing Hoover Motor Exp. Co. v. Railroad and Public Util. Comm’n, 195 Tenn. 593,
604, 261 S.W.2d 233, 238 (1953)).

                                         IV. DISCUSSION

       On appeal, Appellants maintain that the Memphis City Council acted illegally by “failing to
follow the applicable voting rules” in passing the resolution that approved the Development.

       The Charter of the City of Memphis, in Article 7, Section 44, provides that “[t]he Council
may determine the rules for its procedure . . . .” Accordingly, the City Council has adopted “Rules
of Procedure” that govern the conduct of its meetings. Relevant to this appeal, some of those Rules
provide:

               A. DUTIES OF THE CHAIRMAN
               1.   The Chairman shall preside at all meetings of the Council.
               2.   The Chairman shall have general direction of the Council
                    Chamber and shall preserve order. . . .
               3.   The Chairman shall decide questions of order, subject to
                    appeal of the council by any member, and shall put each
                    question. The Chairman shall have a vote on all matters.
               ...
               C. PROCEEDINGS IN COUNCIL MEETINGS
               ...



                                                -4-
                26.     A roll call vote shall be taken by the Chairman on all
                        ordinances and on all resolutions involving appropriations,
                        real property or funding. . . . After the Chairman has put a
                        question, or after there has been a roll call vote of the
                        Council, the Chairman shall not entertain a motion until a
                        decision of the Council has been declared by the Chairman.
                ...
                34.     If any question shall arise which is not provided for in these
                        Rules, the same shall be governed by Roberts Rules of Order,
                        which is hereby adopted.

(emphasis added). The City of Memphis and the City Council contend that a vote is not final until
the result is announced by the Chairman, relying upon Rule 26. Alternatively, the City contends that
if Rule 26 does not govern the issue, then Robert’s Rules of Order provides for the same result. In
response, Appellants claim that Rule 26 does not apply because “it does not address the closure of
voting on a previous vote; rather[,] it is limited to the procedure for the chair to entertain a
subsequent motion.” Apparently, Appellants interpret Rule 26 as only requiring a declaration by the
Chairman before a subsequent motion can be entertained, but not addressing the effectiveness of a
vote before the Chairman’s announcement.

        Clearly, Rule 26 requires the Council Chairman to declare the decision of the Council at
some point after a roll call vote, and further action cannot be taken until the Chairman’s declaration.
Arguably, then, the vote is not finalized until the Chairman has declared the Council’s decision.
Nonetheless, even assuming arguendo that Rule 26 does not address the effectiveness of an
unannounced vote, Robert’s Rules provides a clear answer. Section 4 of Robert’s Rules describes
the basic steps for consideration of a motion: “(1) members debate the motion (unless no member
claims the floor for that purpose); (2) the chair puts the question (that is, puts it to a vote); and (3)
the chair announces the result of the vote.” (emphasis in original). In describing the third step,
Section 4 provides that “a member has the right to change his vote up to the time the result is finally
announced.” Section 4 further addresses situations where a chairman is in doubt as to the result of
a vote, and it instructs the chairman not to announce the result, but to retake the vote by a more
precise method.

        Section 44 addresses the roll call voting process:

                        At the conclusion of the roll call, the names of those who
                failed to answer can be called again, or the chair can ask if anyone
                entered the room after his name was called. Changes of vote are also
                permitted at this time, before the result is announced.
                        The secretary gives the final number of those voting on each
                side, and the number answering present, to the chair, who announces
                these figures and declares the result.
                        ...


                                                  -5-
                         Electrical roll-call vote installation. Some legislative bodies
                 are equipped with various forms of electrical tabulation, which take
                 the place of roll call.
Upon review of these rules, it is clear that the Council’s vote does not become effective or final until
the result is announced by the Chairman. When the Chairman has not yet declared the Council’s
decision, any member may still change his or her vote, the Chairman may call for additional votes
from those who failed to answer the roll call, or the Chairman may retake a vote if the first method
was inconclusive. The Council’s decision is not final merely because votes have been cast or
because those present at the meeting might be able to ascertain the number of council members
initially voting for or against the resolution. For example, a vote taken by a show of hands does not
become final merely because audience members may be able to determine which side has the
majority. Robert’s Rules expressly provides that the secretary will give the final number of votes
to the Chairman, and the Chairman then announces the figures and declares the result.

       Appellants rely upon a specific provision addressing electronic voting that is included in the
most recent version of Robert’s Rules to support their claim that “the electronic roll-call vote
machine itself announces the voting figures and declares the result.” We note that the newer version
of Robert’s Rules is not in the record before us, but the section discussed in Appellants’ brief
supports our conclusion that the vote is not final until announced by the Chairman:

               Various forms of electronic devices have become available to take the
               place of a roll-call vote. Any deliberative body can use such a system
               with appropriate adjustments to conform as closely as possible with
               the rules given above for roll-call voting procedure. When used,
               there is usually a presumption of technical, mechanical accuracy of
               the electronic system if properly used by the members. Changes of
               vote after the result has been announced by the chair on the allegation
               of machine error are not entertained. On the same grounds, a
               recapitulation (the secretary reading the names of those voting “aye”
               or “no”) is not permitted.

(emphasis added). The new rule still requires the Chairman to announce the result of the vote, as
the voting machine does not take the place of the Chairman in presiding over meetings. If anything,
the voting machine assumes the role of the secretary in tallying the votes cast and relaying that
information to the Chairman for his or her announcement.

       Applying these principles to the case at bar, we find that the Council did not act illegally in
retaking the vote. As the Chairman noted, she “did not call the vote” the first time when Councilman
Peete orally cast his vote. The council members’ entries into the electronic voting machine did not
bind the Council to a decision before the Chairman declared the result. After the Chairman asked
the council members to re-vote, she declared, “[t]he motion carries.” The Development was
approved upon the Chairman’s declaration of the Council’s decision.



                                                  -6-
                                       V. CONCLUSION

        For the aforementioned reasons, we affirm the decision of the chancery court. Costs of this
appeal are taxed to Appellants, Moore Family Properties, LLC, and Roy Enterprises, LLC, and their
surety, for which execution may issue if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, P.J., W.S.




                                                -7-
