Francis L. Johnston, as Trustee of the Mae Charlayne Johnston Revocable Family Trust v. Charles Glen Johnston ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 5, 2013 Session
FRANCIS L. JOHNSTON, AS TRUSTEE OF THE MAE CHARLAYNE JOHNSTON
REVOCABLE FAMILY TRUST v. CHARLES GLEN JOHNSTON
Appeal from the Chancery Court for Bradley County
No. 2012-CV-33 Jerri S. Bryant, Chancellor
No. E2013-00525-COA-R3-CV-FILED-MARCH 6, 2014
This action involves a dispute regarding the validity of an $80,000 check written against the
revocable living trust account of the decedent by the defendant, who is the decedent’s
nephew. Two days before the decedent’s death, the defendant deposited the check into a
personal savings account he held jointly with the decedent. The plaintiff, serving as trustee
and as personal representative of the decedent’s estate, filed a complaint seeking recovery
of the $80,000. The trial court issued an ex parte restraining order, directing, inter alia, the
bank where the joint account was held to transfer $80,000 to the clerk and master for
safekeeping in the registry of the court. Following a bench trial, the trial court found by clear
and convincing evidence that the $80,000 check at issue was a forgery and that the defendant
did not have permission from the decedent to sign the check. The court directed the $80,000
to be transferred from the clerk and master to the decedent’s estate account and dismissed
the defendant’s counterclaim for damages. The defendant appeals. Discerning no reversible
error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Charles Glen Johnston, Cleveland, Tennessee, Pro Se.
Sally C. Love, Cleveland, Tennessee, for the appellee, Francis L. Johnston, as Trustee of the
Mae Charlayne Johnston Revocable Family Trust.
OPINION
I. Factual and Procedural Background
The Decedent, Mae Charlayne Johnston (“the Decedent”) died on December 11, 2011.
A citizen and resident of Brevard County, Florida, the Decedent owned one home in Florida
and one home in Cleveland, Tennessee. Prior to her death, the Decedent had been living in
her Cleveland home until she required hospitalization in August 2011 with subsequent
relocation to a nursing home. The defendant, Charles Glen Johnston (“Mr. Johnston”), had
been residing with the Decedent and acting as her caregiver for approximately a year prior
to her hospitalization. The Decedent’s medical records demonstrated that on December 8,
2011, she was discovered on the floor in her room, apparently having fallen. The Decedent
was transferred to SkyRidge Medical Center in Cleveland (“SkyRidge”) later that day. The
Decedent suffered cardiac arrest en route to that facility and after being resuscitated, was
admitted to SkyRidge while on a ventilator and unresponsive. She died three days later.
On December 9, 2011, Mr. Johnston deposited in a savings account he held jointly
with the Decedent an $80,000 check written against the Decedent’s revocable living trust
account, dated December 9, 2011. The instrument was signed with the Decedent’s name.
Mr. Johnston did not testify at trial. He maintained through pleadings and opening and
closing statements at trial that although he was unable to deposit the $80,000 check until
December 9, the Decedent had signed the check on December 5, 2011.
The plaintiff, Francis L. Johnston, who is also the Decedent’s brother and Charles
Johnston’s father, resides in Florida. He opened the Decedent’s estate with the Probate
Division of the Brevard County, Florida Circuit Court, which issued him letters of
administration and appointed him as the Successor Trustee (“Trustee”) of the Decedent’s
revocable living trust (“Trust”) on January 31, 2012.1 The Trustee initiated this action by
filing a complaint on February 9, 2012. According to the allegations filed, Mr. Johnston had
forged the Decedent’s signature on the $80,000 check and had taken items of personal
property from the Decedent’s Cleveland residence. The Trustee requested that the court
order both the $80,000 returned to the Decedent’s trust account and the Decedent’s personal
property surrendered to the Trust.
On February 21, 2012, the trial court entered an ex parte temporary restraining order,
enjoining Mr. Johnston from accessing the $80,000 deposited in the joint account or coming
about the Decedent’s Cleveland residence; requiring Mr. Johnston to return to the Trust any
1
For ease of reference in this opinion involving parties with the same last name, we will refer to
Charles Glen Johnston as “Mr. Johnston” and Francis L. Johnston as “the Trustee.”
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of the Decedent’s personal property in his possession; and requiring SunTrust Bank, where
the joint account was located, to pay $80,000 to the trial court clerk’s office for safekeeping
pending further proceedings. Mr. Johnston, then represented by Attorney James Logan, filed
a motion to dissolve the restraining order on March 5, 2012.
The trial court conducted an in-chambers hearing on March 7, 2012, with counsel for
both parties present. The day before the hearing, the Trustee had filed a motion to allow him
to testify telephonically. Mr. Johnston’s counsel apparently did not object to the motion. Mr.
Johnston was present at court but did not participate in the in-chambers hearing. Following
the hearing, the trial court entered an order on March 9, 2012, nunc pro tunc to March 7,
2012, dissolving the ex parte restraining order and directing that (1) $80,000 continue to be
held in the registry of the court by the trial court clerk and master, (2) SunTrust Bank release
any accounts belonging to Mr. Johnston, (3) an inventory be conducted of the personal
property located at the Decedent’s Cleveland home and Mr. Johnston’s storage unit, and (4)
the Trustee be restrained from selling any property in which Mr. Johnston held an interest.
On March 12, 2012, Mr. Johnston, proceeding without benefit of counsel, filed a
“Motion to Dissolve/Amend Order and to Dissolve Restraining Order,” stating, inter alia,
that he had never agreed to permit the $80,000 to be transferred from the SunTrust account
to the registry of the court. Attorney Logan filed a response to Mr. Johnston’s motion, as
well as a motion requesting that he be allowed to withdraw from representation and that the
court impose a lien for attorney’s fees against Mr. Johnston’s share of the $80,000 held by
the clerk and master. Following a hearing conducted on March 22, 2012, the trial court
granted Attorney Logan’s motion to withdraw, imposed a $3,260 lien for attorney’s fees
against Mr. Johnston’s share of the deposited funds, and denied Mr. Johnston’s motions to
vacate the orders previously entered. The trial court entered the respective order on May 15,
2012, nunc pro tunc to March 22, 2012.
On March 22, 2012, the Trustee filed a ‘Motion to Approve Sale of Real Estate and
Other Relief,” for which his counsel filed a Certificate of Service on March 26, 2012, noting
that she had delivered the motion to Mr. Johnston’s last known address, the Decedent’s
Cleveland home. The Certificate of Service was filed with the trial court on March 26, 2012.
Relative to the motion, on March 29, 2012, the trial court entered an order both approving
the sale of the Decedent’s real property located in Florida and ordering that the inventory of
items held in storage by Mr. Johnston be conducted with a constable present.
Mr. Johnston subsequently filed a “Respondent’s Motion to Dismiss and Provide
Other Relief” with a memorandum in support of the motion on April 5, 2011. In describing
the “other relief” requested, Mr. Johnston filed what he later referred to as a “cross-claim.”
The trial court treated the pleading as a counterclaim. See Tenn. R. Civ. P. 13.07 (defining
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a cross-claim in relevant part as “any claim by one (1) party against a co-party”). During a
hearing conducted April 13, 2012, the trial court denied Mr. Johnston’s motion to dismiss.
The court entered the written order denying the motion to dismiss on February 6, 2013, nunc
pro tunc to April 13, 2012. On May 29, 2012, Mr. Johnston filed a motion to amend the
order previously entered on May 15, 2012, regarding the lien for attorney’s fees. The trial
court, following a hearing, denied this motion in an order entered July 5, 2012.
Mr. Johnston filed several additional motions, as well as a set of interrogatories, on
October 19, 2012. For the first time during the course of the instant proceedings, he
incorporated the phrase, “Jury Requested,” into each of his motions. The trial court
considered Mr. Johnston’s motions on November 8, 2012, denying all but one. The court
granted Mr. Johnston’s motion to obtain medical records for the Decedent specific to the
period of December 7 through December 11, 2011. Following a hearing conducted on
December 18, 2012, the trial court determined that Mr. Johnston’s request for a jury trial was
untimely pursuant to Rule 38.02 of the Tennessee Rules of Civil Procedure and denied the
request. The court otherwise continued the trial to January 14, 2013, to allow Mr. Johnston
sufficient time to obtain the Decedent’s medical records.
Mr. Johnston filed several more motions on January 4, 2013, including a motion for
jury trial and a motion for involuntary dismissal of the petition. The trial court denied Mr.
Johnston’s motion for trial by jury, finding it to be untimely. Following a bench trial
conducted on two non-consecutive days of January 14 and 25, 2013, the trial court found by
clear and convincing evidence that the $80,000 check at issue was a forgery and that no proof
existed to show that the Decedent gave permission for Mr. Johnston to sign the check in her
name. The court also directed that the $80,000 held by the clerk and master be deposited into
the Decedent’s estate account, denied the Trustee’s request for return of personal property,
denied Mr. Johnston’s counterclaim for damages, and assessed court costs to Mr. Johnston.
The trial court entered its final judgment on February 13, 2013, and an order of clarification
on March 11, 2013. Mr. Johnston filed a timely notice of appeal from the final judgment.
II. Issues Presented
Relevant to his appeal of the trial court’s judgment, Mr. Johnston presents seventeen
issues, which we restate as follows:
1. Whether the trial court erred by granting the Trustee an ex parte restraining
order against Mr. Johnston.
2. Whether the trial court erred by entering an order allowing the court to hold
funds from the Decedent’s revocable family trust.
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3. Whether the trial court erred by failing to address the Trustee’s absence during
the March 7, 2012 hearing.
4. Whether the trial court erred by declining to vacate the order directing the
clerk and master to hold the $80,000 due to the Trustee’s failure to post an
injunction bond with the original petition for an ex parte restraining order.
5. Whether the trial court erred by granting the Trustee permission to access Mr.
Johnston’s personal storage unit for the purpose of conducting and completing
an inventory.
6. Whether the trial court erred by entering orders drafted by the Trustee’s
counsel.
7. Whether the trial court erred by determining that Mr. Johnston was properly
served with notice of a motion hearing on March 29, 2012.
8. Whether the trial court erred by dismissing Mr. Johnston’s claim that the
Trustee willfully misdirected Mr. Johnston’s mail.
9. Whether the trial court erred by denying issuance of subpoenas on behalf of
Mr. Johnston in the absence of payment for the cost of the subpoenas.
10. Whether the trial court erred by denying Mr. Johnston’s request for a jury trial.
11. Whether the trial court erred by denying, to the extent it did so, Mr. Johnston’s
motions for judicial notice.
12. Whether the trial court erred by denying Mr. Johnston’s motion for involuntary
dismissal of the Trustee’s petition.
13. Whether the trial court erred by finding clear and convincing evidence that the
$80,000 check written against the Decedent’s revocable living trust was a
forgery.
14. Whether the trial court erred by dismissing Mr. Johnston’s counterclaim for
damages.
15. Whether the trial court erred by declining to find the Trustee liable for
wrongful eviction of Mr. Johnston from the Decedent’s home.
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16. Whether the trial court erred by granting an attorney’s lien in favor of Mr.
Johnston’s former counsel in the amount of $3,260.00.
17. Whether the trial court erred by failing to address certain receipts issued by the
clerk and master.
III. Standard of Review
We review a non-jury case de novo upon the record, with a presumption of correctness
as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn.
R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We review questions
of law, including those of statutory construction, de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.
1998)); see also In re Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006).
Questions of construction involving the Tennessee Rules of Civil Procedure are likewise
reviewed de novo with no presumption of correctness. See Green v. Moore, 101 S.W.3d 415,
418 (Tenn. 2003).
In reviewing pleadings, we “must give effect to the substance, rather than the form
or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)
(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010)).
We note also that pleadings “prepared by pro se litigants untrained in the law should be
measured by less stringent standards than those applied to pleadings prepared by lawyers.”
Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279 S.W.3d 560, 568 (Tenn. 2009);
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young v. Barrow, 130
S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit of counsel are
“entitled to fair and equal treatment by the courts,” but we “must not excuse pro se litigants
from complying with the same substantive and procedural rules that represented parties are
expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
IV. Ex Parte Restraining Order
Mr. Johnston contends that the trial court violated his due process rights by entering
the original ex parte temporary restraining order and directing SunTrust Bank to transfer
$80,000 from Mr. Johnston’s and the Decedent’s joint account to the clerk and master for
safekeeping. The Trustee asserts that the trial court properly granted the temporary
restraining order without notice to Mr. Johnston because the Trustee’s complaint showed
specific facts indicating that immediate and irreparable loss would result to the Trust absent
the order. See Tenn. R. Civ. P. 65.03. We conclude that the trial court did not err by finding
sufficient basis to authorize the ex parte restraining order but did err by entering the ex parte
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order without requiring the Trustee to post an injunction bond. See id.; Tenn. R. Civ. P.
65.05. Because the trial court subsequently dissolved the ex parte order and Mr. Johnston
failed to prove resultant damages caused during the time period the ex parte restraining order
was in effect, however, we find no reversible error.
A. Basis for Extraordinary Relief
Rule 65.03 of the Tennessee Rules of Civil Procedure provides in pertinent part:
65.03. Restraining Order. – (1)W HEN A UTHORIZED. The court may
issue a temporary restraining order without written or oral notice to the adverse
party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result
to the applicant before the adverse party can be heard in
opposition; and
(B) the applicant’s attorney (or pro se applicant) certifies in writing
efforts made to give notice and the reasons why it should not be
required.
...
(5) B INDING E FFECT AND D URATION. A restraining order becomes effective
and binding on the party to be restrained at the time of service or when the
party is informed of the order, whichever is earlier. Every temporary
restraining order granted without notice shall expire by its terms within such
time after entry, not to exceed fifteen days, as the court fixes, unless within the
time so fixed the order, for good cause shown, is extended for a like period, or
unless the party against whom the order is directed consents that it may be
extended for a longer period. The reasons for the extension shall be entered
of record.
See also State ex rel. Dean v. Nelson, 169 S.W.3d 648, 650 (Tenn. Ct. App. 2004).
After consideration of the Trustee’s sworn complaint and motion, the trial court found
sufficient basis to (1) restrain Mr. Johnston from coming about the Decedent’s Cleveland
residence; (2) order Mr. Johnston to return to the Trustee the $80,000 removed from the
Trust, any of the Decedent’s personal property in his possession, and the original of the
Decedent’s will; and (3) order SunTrust Bank to pay the $80,000 to the Bradley County
Clerk and Master to be held in an interest-bearing account pending further order of the court.
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The Trustee’s sworn complaint averred that Mr. Johnston had removed $80,000 from the
Trust, thus posing a threat of immediate and irreparable loss to the Trust and to the
Decedent’s Estate if the money were not returned. The sworn complaint further stated that
Mr. Johnston had removed personal property belonging to the Decedent from the Decedent’s
residence, averring further threat of loss to the Estate. Regarding the need for an ex parte
order without notice to Mr. Johnston, the Trustee averred that the Estate’s attorney in Florida
had “made written demand to [Mr. Johnston] to return the funds, personal property, and will”
but that Mr. Johnston had not complied.2
Rules 67.01 through 67.04 of the Tennessee Rules of Civil Procedure provide for
deposit of funds in pending actions with the trial court. Relevant to this action, Rules 67.02-
.03 provide:
67.02. Court May Order Deposit or Seizure of Property. – When
it is admitted by the pleading or examination of a party that the party had in his
or her possession or control any money or other thing capable of delivery
which is the subject of the litigation and which is being held by the party as
trustee for another party, or which belongs or is due to another party, the court
may order the same to be deposited in court or delivered to such other party,
with or without security, subject to further orders of the court, and the court
may require the sheriff or other proper officer to take the money or property
and deposit it or deliver it in accordance with the orders of the court.
67.03. Money Paid into Court. – Where money is paid into court to
abide the result of any legal proceeding, the judge may order it deposited in a
designated state or national bank or savings and loan institution, to the credit
of the court in the action or proceeding in which the money was paid. The
money so deposited, with interest if any, shall be disbursed only upon the
check of the clerk of the court pursuant to order of the court and in favor of the
person to whom the order directs the payment to be made. Upon making a
deposit in court a party shall not be liable for further interest on the sum
deposited.
As this Court has explained:
Rule 67, then, governs deposits made pending determination by the trial court
of the right to the property or money. See Tenn. R. Civ. P. 1 (rules apply in
2
Mr. Johnston provided the original of the Decedent’s will to the attorney for the Decedent’s Estate
without incident or need for further action.
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circuit and chancery courts). In that situation, Rule 67.03’s initial condition
that it applies only to money deposited “to abide the result of any legal
proceeding” means “to wait for.” See B LACK’S L AW D ICTIONARY at 7 (6th ed.
1990).
Vooys v. Turner, 49 S.W.3d 318, 325-26 (Tenn. Ct. App. 2001).
The instant action presents the unusual circumstance of Rule 67.02 relief having been
granted in conjunction with an ex parte restraining order. In this instance, the Trustee’s
petition was the pleading of a party admitting that he had in his possession or control money
capable of delivery that was also the subject of the litigation. See Tenn. R. Civ. P. 67.02.
Mr. Johnston deposited the $80,000 into an account he held jointly with the Decedent.
Because the Trustee was also the personal representative of the Decedent’s Estate, he was
authorized to access information from the joint account and to investigate and gather the
assets held in the Decedent’s name. The Trustee’s petition thus operated as the pleading
needed to initiate Rule 67.02 relief. Upon our review of the pleadings, we conclude that the
trial court did not violate Mr. Johnston’s due process rights in finding sufficient basis,
pursuant to Rules 65.03 and 67.02 of the Tennessee Rules of Civil Procedure, to authorize
the ex parte restraining order without first providing notice to Mr. Johnston. See, e.g., TPI
Corp. v. Wilson, No. E2007-02315-COA-R3-CV, 2008 WL 3821077 at *4 (Tenn. Ct. App.
Aug. 15, 2008) (concluding that the defendant’s due process rights were adequately protected
when the trial court issued a temporary restraining order in compliance with the requirements
of Tenn. R. Civ. P. 65.03).
We note that in the ex parte order, the trial court set the date for hearing as March 7,
2012, thereby limiting the duration of the order to twenty days following entry of the order
on February 16, 2012.3 As this Court has noted, “a temporary restraining order issued
without notice expires within fifteen days after its issuance unless the trial court extends it
during that period. If a trial court decides to extend a temporary restraining order, it may do
so for only fifteen additional days.” State ex rel. Dean, 169 S.W.3d at 652 (citing Tenn. R.
Civ. P. 65.03(5)); see also Tenn. R. Civ. P. 6 (explaining computation of time). In his motion
to dissolve the ex parte restraining order, Mr. Johnston, then represented by counsel, did not
object to the twenty-day duration of the ex parte order, and the expanded time period has not
been raised as an issue on appeal. Review by this Court “generally will extend only to those
issues presented for review.” Tenn. R. App. P. 13(b). Moreover, as the time period for the
ex parte restraining order was within the time allowed for an extension, we determine no
reversible error in the initial duration of the order. See State ex rel. Dean, 169 S.W.3d at 652
3
In 2012, there were twenty-nine days in the month of February.
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(vacating the trial court’s extension of an ex parte restraining order because it extended the
order beyond the thirty total days allowed by Rule 65.03(5)).
B. Injunction Bond Required
Mr. Johnston also contends that the trial court erred by not requiring the Trustee to
post a bond at the time of filing the sworn complaint, pursuant to Rule 65.05 of the
Tennessee Rules of Civil Procedure. Rule 65.05 provides:
65.05 Injunction Bond. – (1) Except in such actions as may be brought
on pauper’s oath, no restraining order or temporary injunction shall be granted
except upon the giving of a bond by the applicant, with surety in such sum as
the court to whom the application is made deems proper, for the payment of
such costs and damages as may be incurred or suffered by any person who is
found to have been wrongfully restrained or enjoined. The address of the
surety shall be shown on the bond.
(2) A surety upon a bond under the provisions of this Rule submits
himself to the jurisdiction of the court. The surety’s liability may be enforced
on motion without the necessity of an independent action. The motion shall
be served on the surety as provided by Rule 5 at least twenty (20) days prior
to the date of the hearing thereon.
(3) A party restrained or enjoined may move the court for additional
security; and if it appear on such motion that the surety is insufficient or the
amount of the bond is insufficient, the court may vacate the restraining order
or temporary injunction unless within a reasonable time sufficient security is
given.
The Trustee’s original sworn petition does not include a posted bond. In his motion
to dissolve the ex parte restraining order, Mr. Johnston, through his former counsel, argued
that due to the Trustee’s failure to post a bond, the ex parte order was defective on its face.
The trial court, in its March 9, 2012 order, dissolved the ex parte restraining order and did
not from that time forward enjoin Mr. Johnston from any action. Mr. Johnston argued in his
motion to dissolve or amend the March 9, 2012 order and in his subsequent “Motion to
Enforce Liability of Surety and Motion to Dismiss” that the trial court erred in not requiring
the Trustee to post a bond. The trial court denied Mr. Johnston’s motions in interim orders
entered respectively on May 15, 2012, and December 18, 2012. The court further explained
in the December 2012 order:
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The request to enforce the liability for surety is denied, and the court has
already ruled upon the request before. No bond was required because no
restraining order was ordered.
We agree with the trial court’s ruling that no injunction bond was required for the
March 9, 2012 order because the order did not enjoin Mr. Johnston from any action. Mr.
Johnston had also been given notice and an opportunity to respond to the Trustee’s petition
at that point. We conclude, however, that the trial court erred by entering the ex parte
restraining order without requiring the Trustee to post an injunction bond. See Tenn. R. Civ.
P. 65.05. In addition to ordering SunTrust Bank to transfer the $80,000 to which the Trustee
had claim under the joint account, the ex parte order enjoined Mr. Johnston from accessing
the $80,000 or coming about the Decedent’s Cleveland residence and required him to
relinquish any of the Decedent’s property in his possession to the Trustee.
Through his counsel, Mr. Johnston sought and was granted relief from the trial court’s
grant of extraordinary relief when the court dissolved the ex parte restraining order in its
March 9, 2012 order. Subsequently acting without benefit of counsel, Mr. Johnston sought
further relief by moving to enforce the liability of the Trustee. Mr. Johnston failed, however,
to present proof of damages caused by the effect of the ex parte order. He argued in his
motion, as he does on appeal, that his financial ruin was caused by SunTrust Bank’s freezing
of all his accounts at the time the ex parte restraining order was entered. The court did not
order all of Mr. Johnston’s accounts frozen at any time, however, and took specific action
in the March 9, 2012 order to direct SunTrust Bank to release all of Mr. Johnston’s funds
remaining after transfer of the $80,000 at issue. We will address Mr. Johnston’s claim of
wrongful eviction in a later section of this opinion, but it is undisputed that he was not living
at the Decedent’s residence at the time the trial court entered the ex parte restraining order.
The ex parte order did not, therefore, have the effect of causing Mr. Johnston to seek
emergency housing. The record contains no indication that Mr. Johnston surrendered
personal property to the Trustee in compliance with the ex parte restraining order, and the
court dissolved this provision in the March 9, 2012 order.
Upon our thorough review of the record, we determine that Mr. Johnston failed to
prove liability of the Trustee for damages incurred during the time period the ex parte
restraining order was in effect. Further, the final disposition of the case was not affected by
the injunctive provisions of the ex parte order. We therefore conclude that the trial court’s
error in entering the ex parte restraining order without requiring an injunction bond is not
reversible error based upon the facts of this case.
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V. Issues Arising from Order Directing Clerk and Master to Hold $80,000
Several of the issues raised by Mr. Johnston stem from his contention that the trial
court erred by entering an order on March 9, 2012, directing, inter alia, the clerk and master
to hold the $80,000 at issue in the registry of the court pending further orders. The Trustee
contends that the trial court properly conducted an in-chambers hearing on March 7, 2012,
with counsel for both parties present and that the court properly entered the resultant order
on March 9, 2012. We conclude that the trial court did not err in entering the March 9, 2012
order and was acting within its authority in directing the $80,000 to be held by the clerk and
master.
In its March 9, 2012 order, the trial court made the following findings of fact and
reached the following conclusions of law in pertinent part:
The matter is before the Court on the ex-parte restraining order heretofore
issued in this cause, the Motion to Dissolve the Restraining Order filed by [Mr.
Johnston], and the Motion to Allow the [Trustee] to testify telephonically.
Present for the hearing for this cause were counsel for the respective parties,
the Defendant Charles Johnston, the availability of the [Trustee] and Mr. and
Mrs. Reid Wright, witnesses for the [Trustee]. After having heard statements
of counsel for the respective parties, it does appear that the facts necessary for
the Court’s ruling on the pending matters are essentially without dispute.
Based upon the initial ex-parte Order, SunTrust Bank has paid the sum
of $80,000 into the Office of the Clerk and Master. The Defendant Charles
Johnston has agreed that the said $80,000 may remain on interest in the Office
of the Clerk and Master of this Court pending further hearings herein. It
further appears that the reference to personal property in the trust attached to
the original complaint is not available to the [Trustee] at this time and was not
completed as attached to the alleged trust.
It further appears that [Mr. Johnston’s] accounts have apparently been
frozen and the same should be promptly released.
It also appears that assets of the trust are proposed for sale in the State
of Florida and proposed for sale and may be, according to the knowledge of
the parties before the Court, proposed for immediate sale in Bradley County,
Tennessee. It also appears that [Mr. Johnston] alleges that the deceased may
have been domiciled in the State of Tennessee at the time of her death.
After reviewing the file and having heard undisputed facts and the
agreement of [Mr. Johnston], the Court thereupon announced its ORDER on
the matters before the Court as follows:
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1. The $80,000.00 heretofore paid into the Office of the Clerk and Master
shall continue to be held by the Clerk and Master at interest subject to
further orders of the Court.
2. The restraining order heretofore issued in this cause is dissolved and
held for naught. Specifically, SunTrust Bank is hereby advised that the
Ex Parte Order issued by the Court should not be further considered by
SunTrust Bank in any way interfering with the rights of the Defendant
Charles Glen Johnston a/k/a Charles Johnston to full complete control
of accounts numbered [--------------------], [-----------------------]4 or any
other account in which the said Charles Johnston has any interest.
3. The parties shall inventory the personal property in the residence
property located at 810 [Steed] Street Northwest and/or videotape the
same.
4. The parties shall inventory and/or videotape those items of personal
property held in storage in the name of Charles Johnston.
5. The [Trustee] is hereby restrained and prohibited from selling,
transferring, or conveying any interest in any property held by the
[Trustee] in which [Mr. Johnston] has an interest.
6. The Defendant Charles Johnston shall be given notice of any and all
proposed sale of property in which he may have a direct or beneficial
interest. Upon agreement of the said Charles Johnston to said sale in
writing, the sale may proceed. Otherwise, the [Trustee] shall be given
the right to immediate hearing on any proposed sale proposed to
Charles Johnston to allow Charles Johnston to show cause, if any he
may have, why said sale should not take place in the reasonable
administration of the estate.
Mr. Johnston asserts the following to support his contention that the trial court erred
in entering the above order and in subsequently denying his motions to vacate the order: (1)
Mr. Johnston did not “consent” to have the clerk and master hold the $80,000 pending final
judgment; (2) the Trustee was not personally present at the March 7, 2012 hearing; (3) the
Trustee did not post an injunction bond; (4) Mr. Johnston’s Fourth Amendment right
preventing unlawful search and seizure was violated by the court’s directive that the items
in his storage unit be inventoried or videotaped; and (5) the trial court adopted an order
drafted by counsel and with which Mr. Johnston did not agree. We will address each of these
issues in turn.
4
The account numbers specified by the trial court are those for the joint checking and savings
accounts held in the names of the Decedent and Mr. Johnston. The specific numbers are omitted here for
reasons of privacy and the protection of financial records.
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A. No Waiver of Issues Regarding Interim Orders
We first address a waiver argument proffered by the Trustee regarding Mr. Johnston’s
appeal as it applies to the March 9, 2012 order and other interim orders entered by the trial
court in response to the parties’ motions throughout the proceedings. The Trustee posits that
because the trial court upheld the March 9, 2012 order in response to Mr. Johnston’s multiple
motions to amend or “dissolve” the order, any appeal of the March 9, 2012 order is untimely
pursuant to Rule 4(b) of the Tennessee Rules of Appellate Procedure. Rule 4(b) provides,
inter alia, that the time for appeal of a Rule 59.07 motion for new trial or a Rule 59.04
motion to alter or amend the judgment “shall run from the entry of the order denying a new
trial or granting or denying any other such motion.” The Trustee argues that Mr. Johnston’s
appeal as it pertains to orders entered prior to the final judgment in the action is untimely
because his appeal to this Court was filed more than thirty days following entry of each order
at issue. The Trustee further argues that Mr. Johnston’s proper mode of review for the
interim orders would have been to request permission for an interlocutory appeal pursuant
to Rule 9 of the Tennessee Rules of Appellate Procedure. We disagree.
This action was not ripe for appeal as of right until the final judgment was entered.
See Tenn. R. App. P. 3(a) (stating in pertinent part that “any order that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties is not enforceable or
appealable and is subject to revision at any time before entry of a final judgment adjudicating
all the claims, rights, and liabilities of all parties.”). Rule 4(b) anticipates a party’s filing of
a motion for new trial or motion to alter or amend following final judgment. See Tenn. R.
App. P. 4(b). Moreover, “[f]ailure to seek or obtain interlocutory review shall not limit the
scope of review upon an appeal as of right from entry of the final judgment.” Tenn. R. App.
P. 9(a). The Trustee’s waiver argument regarding interim orders is unavailing.
B. Deposit to Abide with Clerk and Master
Mr. Johnston asserts that he never agreed to the provision of the order regarding the
$80,000 and that the provision is therefore analogous to a contract that he never agreed to
enter. Mr. Johnston first filed, without assistance of his counsel, a “Motion to
Dissolve/Amend Order and Motion to Dissolve Restraining Order” on March 12, 2012, three
days after the trial court had entered the order at issue. Mr. Johnston’s former counsel, James
Logan, filed a response to his client’s motion on March 15, 2012, as well as a motion
requesting permission to withdraw his representation after finding that Mr. Johnston had
constructively discharged him. Attorney Logan stated in his response that he had discussed
with Mr. Johnston the “agreement” to have the $80,000 remain with the clerk and master on
the day of the hearing and believed unequivocally that Mr. Johnston had given consent to this
part of the order.
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It is well settled in Tennessee that a trial court cannot “enter a judgment based upon
a settlement agreement when the court had prior notice that one of the parties was repudiating
the agreement.” See Howard v. Howard, 991 S.W.2d 251, 256 (Tenn. Ct. App. 1999) (citing
Harbour v. Brown, 732 S.W.2d 598, 600 (Tenn. 1987)). Inasmuch as the March 9, 2012
order in no way purports to be a settlement agreement, we examine only the provision of the
order to which the trial court noted Mr. Johnston’s consent in relation to this issue. The
record demonstrates that the first indication to the trial court that Mr. Johnston repudiated the
consent given by his counsel to have the $80,000 held occurred on March 12, 2012, when
Mr. Johnston filed his motion to dissolve the order. Thus, if Mr. Johnston’s consent had been
required for the trial court to order the $80,000 held, the order still would have been valid
because the court did not have notice prior to the order’s entry of Mr. Johnston’s repudiation.
See Howard, 991 S.W.2d at 256.
Moreover, having concluded that the trial court did not err in ordering the $80,000
transferred to the clerk and master from the Decedent’s and Mr. Johnston’s joint account
upon the pleading of the Trustee, we further conclude that the trial court possessed authority
to order the funds held without consent from Mr. Johnston. See Tenn. R. Civ. P. 67.02-03;
see, e.g., Inmon v. Hadley, No. E2005-00834-COA0R3-CV, 2006 WL 2507188 (Tenn. Ct.
App. Aug. 31, 2006) (concluding that once funds at issue in a dispute between lessor and
lessee were deposited into the trial court pursuant to Tenn. R. Civ. P. 67.02 and 67.03, the
court was “acting within its authority” when it ordered disbursement of the funds according
to the final judgment.). The trial court did not err in ordering that the $80,000 in dispute
would abide with the clerk and master pending final judgment.
C. Trustee’s Absence at March 7, 2012 Hearing
Mr. Johnston also argues that the trial court erred by not addressing the Trustee’s
absence at the March 7, 2012 hearing. At the time of the March 7, 2012 hearing, Mr.
Johnston was represented by counsel. The Trustee previously had filed, with proper notice
to Mr. Johnston through counsel, a motion to be available telephonically for the hearing
rather than in person, citing his Florida residence and advanced age as reasons. Mr.
Johnston, through his former counsel, did not file a response or objection to this motion. The
Trustee maintains that the trial court never reached a decision regarding whether he could
testify telephonically. We note, however, that the trial court did state in its order that the
matter was before the court in part on the “availability” of Mr. Johnston, indicating that the
court had accepted Mr. Johnston’s telephonic availability and appearance of counsel in place
of his personal appearance.
We conclude that Mr. Johnston waived his right to object to the trial court’s grant of
the Trustee’s motion to testify telephonically when he did not object at the time of the
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hearing. See Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009) (“One cardinal principle of
appellate practice is that a party who fails to raise an issue in the trial court waives its right
to raise that issue on appeal.”); see also Tenn. R. App. P. 36(a) (“Nothing in this rule shall
be construed as requiring relief be granted to a party responsible for an error or who failed
to take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”). Moreover, as the Trustee notes, Mr. Johnston has presented no proof that he was
prejudiced by the Trustee’s failure to appear personally at the March 7, 2012 hearing. This
issue is without merit.
D. Order to Inventory Personal Property in Storage
Mr. Johnston contends that the trial court violated his Fourth Amendment right to be
free from unlawful search and seizure by ordering that the parties conduct an inventory of
the personal property contained in his personal storage unit. This provision of the March 9,
2012 order was issued in response to the Trustee’s allegation, along with a sworn affidavit
of a cousin of the Decedent, that Mr. Johnston had removed items of the Decedent’s personal
property from her home and placed them in his storage unit. In a subsequent motion filed
on March 22, 2012, the Trustee requested, inter alia, that the court enforce the order to
inventory the items in storage. Following the hearing conducted on March 29, 2012, the trial
court in its order entered April 13, 2012, ruled in pertinent part: “The parties shall arrange
to inventory the personal property in the storage unit . . . with a deputy or constable present.”
The record contains no inventory of the items in Mr. Johnston’s storage unit. Mr.
Johnston stated in his “Memorandum in Support of Motion to Dismiss and Provide Other
Relief” that on March 20, 2012, the Trustee’s counsel photographed the storage unit’s
contents in the presence of a constable. Mr. Johnston maintains in his brief on appeal that
because he lost funds due to this action, he could not afford to keep his storage unit and much
of his personal property. In its final judgment, the trial court found that the Trustee had
failed to carry his burden of proof to show that any items of personal property rightfully
belonging to the Decedent’s Trust were held by Mr. Johnston. The court thereby dismissed
the Trustee’s claim for return of personal property in its final judgment entered February 13,
2013.
Mr. Johnston’s Fourth Amendment argument is inapplicable to this issue. Both the
Fourth Amendment of the United States Constitution and article I, section 7 of the Tennessee
Constitution provide protection to citizens from unreasonable searches and seizures by
government officials. See State v. Moats, 403 S.W.3d 170, 177 (Tenn. 2013) (“‘[T]he most
basic constitutional rule is that . . . ‘searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment–subject only to a few specifically established and well-delineated
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exceptions.’‘”) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (in turn
quoting Katz v. United States, 389 U.S. 347, 357 (1967))). The trial court’s inventory order
in this case was within the judicial process and did not order a search by a government
official.
As the trial court noted in its order entered April 13, 2013, the Trustee was endowed
by the Decedent’s Trust with the “authority to manage and distribute the trust property.” In
his role as personal representative of the Decedent’s Estate, the Trustee was also appointed
by the Florida probate court with the fiduciary duty of gathering, inventorying, and protecting
the property belonging to the Estate. See Fla. Stat. Ann. § 738.103 (Supp. 2012) (explicating
general principles for fiduciary duties of trusts and estates administrators); cf. Tenn. Code
Ann. § 35-50-110) (2007). Given the Trustee’s allegation in the original petition that Mr.
Johnston had removed items of the Decedent’s personal property from the Decedent’s home,
we determine that the trial court acted within its authority in ordering that an inventory of Mr.
Johnston’s storage unit be conducted by both parties. See, e.g., Browne v. Browne, 547
S.W.2d 239, 241 (Tenn. 1977) (recognizing the county court’s jurisdiction to decide whether
property that appears to be part of the estate may in fact have been given to another person
by the decedent); In re Love’s Estate, 145 S.W.2d 778, 782-83 (Tenn. 1940) (recognizing the
county court’s authority over an estate administrator’s inventory of the decedent’s assets).
Mr. Johnston has failed to demonstrate any damages caused by the trial court’s order for an
inventory. He is not entitled to relief on this issue.
E. Orders Drafted by Counsel
Mr. Johnston asserts that the trial court erred by requesting that the Trustee’s counsel
prepare orders memorializing the court’s rulings. He argues particularly that the trial court
should have obtained his approval before entering two orders: the December 18, 2012 order
memorializing the court’s ruling following a hearing conducted on November 8, 2012, and
the final judgment entered on February 13, 2013. The Trustee contends that the trial court
properly followed local court rules when assigning counsel to prepare orders and properly
declined to adopt an alternate draft of the December 18, 2012 order prepared by Mr. Johnston
on his own initiative. We find no reversible error in the trial court’s adoption of orders
prepared by the Trustee’s counsel.
Rules 13.02 and 13.03 of the Local Rules of Court for the Circuit, Chancery and
Criminal Courts for the Tenth Judicial District, in which the trial court is located, provide in
pertinent part:
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13.02 Counsel Responsible for Preparation.
Unless the court rules otherwise, counsel for the successful or proposing party
shall prepare the proposed order reflecting the court’s decision and shall
submit it to opposing counsel not later than ten (10) days from the date of
hearing or decision noting thereon the date of counsel’s preparation.
13.03 Action by Opposing Counsel and Court.
Within ten (10) days of receipt of the proposed order, non-prevailing counsel
shall either approve (and date the approval) and submit the order to the judge
or chancellor for entry in accord with T.R.Civ.P. 58 or, if no order has been
proposed by prevailing counsel, the non-prevailing counsel shall submit an
order to opposing counsel and the court for approval. Once 10 days from
hearing has passed and no agreed order has resulted from utilization of the
procedures under this rule, either party may submit their proposed order to the
court and the other party noting areas of disagreement and may initiate a
telephone conference with all counsel and the court to resolve differences
about the order.
Nothing in this rule shall limit the authority of the court to draw its own order
or to enter an order submitted by a party in any case at any time the court is
satisfied the order reflects the court’s ruling and complies with Rule 58 of the
Tennessee Rules of Civil Procedure.
The court upon receiving a proposed order from only one counsel may give
opposing counsel five days to submit a competing order to the court.
In a recent decision of this Court, the issue of party-prepared orders was summarized
succinctly as follows:
The issue of party-prepared orders has been addressed recently by this
court. See Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV,
2013 WL 210250, at *8-11 (Tenn. Ct. App. Jan. 18, 2013); Beach Cmty. Bank
v. Labry, No. W2011-01583-COA-R3-CV, 2012 WL 2196174, at *5 (Tenn.
Ct. App. June 15, 2012). In Labry, we observed that
after the adoption of the Tennessee Rules of Civil Procedure, the
Supreme Court, in Delevan-Delta Corp. v. Roberts, 611 S.W.2d
51 (Tenn. 1981), recognized that “the thorough preparation of
suggested findings and conclusions by able counsel can be of
great assistance to the trial court.” Id. at 52-53. Accordingly,
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the Supreme Court held that “although it is improper for the trial
court to require counsel to prepare findings, it is permissible and
indeed sometimes desirable for the trial court to permit counsel
for any party to submit proposed findings and conclusions.” Id.
at 53.
The decision in Roberts was discussed in detail by this Court in Madden
Phillips Const., Inc. v. GGAT Development Corp., 315 S.W.3d 800 (Tenn. Ct.
App. 2009). According to this Court:
The Roberts court offered guidance to lower courts when
establishing findings of fact. The court maintained a clear
preference for factual findings that are a product of the judge’s
own labor. Id. The Roberts court recognized, however, that
other procedures sufficiently maintain the independence and
impartiality of courts that adopt party-prepared findings. The
court stated that trial judges may rely on party prepared findings,
so long as they carefully review proposed findings to ensure that
the findings reliably reflect the court’s opinion based on the
testimony and evidence produced at trial. Id. The court also
recognized a need to ensure that the proposed findings dispose
of all relevant issues. Id. The court advised trial courts to
“ascertain that [party-prepared findings] adequately dispose of
all material issues, and to assure that matters not a proper part of
the determination have not been included. Id.Id. at 810-11.
Labry, 2012 WL 2196174, at *5. Accordingly, party-prepared orders are
allowable under the following circumstances: (1) the trial court does not
require counsel to prepare the orders; (2) the trial court carefully reviews the
orders to ensure that the conclusions reliably reflect the court’s opinion; (3) the
orders dispose of all relevant issues; and (4) no matters not a proper part of the
determination are included. Id. (citing Madden Phillips Const., Inc. v. GGAT
Dev. Corp., 315 S.W.3d 800, 811 (Tenn. Ct. App. 2009)). See also Airline
Constr., Inc. v. Barr, 807 S.W.2d 247, 253 (Tenn. Ct. App. 1990) (noting that
the chancellor’s opinion reproduced verbatim the proposed findings of
defendant).
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Riad v. Erie Ins. Exch., No. E2013-00288-COA-R3-CV, 2013 WL 5874733 at *18 (Tenn.
Ct. App. Oct. 31, 2013).
Mr. Johnston’s argument that the court did not follow proper procedure appears to be
based on his interpretation of the trial court’s local rule 13.03, which provides for opposing
counsel to submit an alternate proposed order if opposing counsel does not agree with the
order drafted by prevailing counsel. As local rule 13.03 also provides, however, nothing in
the rule limits the trial court’s authority to “enter an order submitted by a party in any case
at any time the court is satisfied the order reflects the court’s ruling and complies with Rule
58 of the Tennessee Rules of Civil Procedure.”
Upon our thorough review of the record, we find no indication that the orders entered
by the trial court do not reflect the court’s findings of fact and conclusions of law. In
particular, the trial court’s entered final judgment accurately reflects the Memorandum
Opinion issued by the trial court from the bench. In contrast, the proposed order submitted
by Mr. Johnston as an alternative to the December 18, 2012 order includes “rulings” outside
the parameters of the proceedings, for instance, naming Mr. Johnston the Decedent’s next
of kin. We conclude that the trial court did not err in adopting party-prepared findings of fact
and afford those findings the usual presumption of correctness. See Madden Phillips Const.,
Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 811 (concluding that because there was no
indication that the trial judge did not carefully review the party-prepared findings, this Court
would afford those findings the “ordinary presumption of correctness”).
VI. Pre-Trial Motions
A. Notice of Motion Hearing
Mr. Johnston also contends that the trial court erred by failing to find that the Trustee
had intentionally withheld notice of the March 29, 2012 hearing. Counsel for the Trustee
filed a “Motion to Approve Sale of Real Estate and for Other Relief” on March 22, 2012, and
included a certificate of service stating that a copy of the motion and notice of hearing had
been given to Mr. Johnston at the Bradley County Courthouse on the same day. On March
26, 2012, the Trustee’s counsel filed a subsequent certificate of service regarding the same
motion and hearing, stating that a copy of the motion and notice was “left at the last known
address of the Defendant Charles Johnston,” the Decedent’s Cleveland residence, on March
22, 2012.
The Trustee’s counsel explains in the responsive brief that she attached the “hand
delivery” certificate of service to the motion because she had expected to see Mr. Johnston
at court that day. When she did not find Mr. Johnston present, counsel for the Trustee
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delivered the motion to the mailbox at the Decedent’s home. Mr. Johnston maintains that the
Trustee knew no one lived at the Decedent’s residence in March 2012 and intentionally
misdirected notice of the hearing. It does not appear, however, from Mr. Johnston’s
pleadings that he provided an alternate mailing address at which he could be given notice.
When the trial court questioned Mr. Johnston as to his mailing address during trial on
January 14, 2013, the following exchange took place:
THE COURT: You just said I want my mail to go to 810 Steed Street
and now you’re telling me nobody lives there.
MR. JOHNSTON: But I put in a change of address to go to a post office
box.
THE COURT: So where do you want it, Mr. Johnston? You said 810
Steed Street.
MR. JOHNSTON: But there is a change of address in place for 810 Steed
Street for Charles Johnston.
THE COURT: Where do you want your mail to go?
MR. JOHNSTON: 810 Steed Street.
THE COURT: Okay. If the Court mails you anything, you want it to go
to 810 Steed Street even though you’re telling the Court
today on the record and under oath that nobody lives
there?
MR. JOHNSTON: No, but I have a change of address in place to put it into
a PO box. That’s the only place –
THE COURT: Okay. So you don’t want to tell the Court your PO box
so that we can mail it to you at your PO box?
MR. JOHNSTON: You can, but I was hoping to get rid of that at some
point.
THE COURT: So 810 Steed Street. You’re going to be charged with
anything that goes to 810 Steed Street as having received
it because you’re telling the Court today that is your
address?
MR. JOHNSTON: Yes. I already got it.
THE COURT: All right. And how long has that been your address?
MR. JOHNSTON: Since I moved in with my aunt, two years.
THE COURT: Two years. All right.
Mr. Johnston does not dispute that he was present and was heard by the court at
the hearing on March 29, 2012. Notice was clearly sufficient for Mr. Johnston to appear.
If he believed that notice was insufficient for him to properly prepare for the hearing, Mr.
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Johnston’s remedy would have been to request a continuance at that time. See Tenn. R. App.
P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”). The record contains no indication that
Mr. Johnston requested a continuance of the March 29, 2012 hearing or that Mr. Johnston’s
case was prejudiced by the notice provided. This issue is without merit.
B. Dismissal of Misdirected Mail Claim for Lack of Jurisdiction
Mr. Johnston argues that the trial court erred by dismissing the portion of his
counterclaim averring that the Trustee intentionally misdirected his mail. The Trustee posits
that the trial court properly found it did not have jurisdiction over a claim involving violation
of a federal postal regulation. We agree with the Trustee.
The Trustee does not dispute that in December 2011, he completed a change-of-
address card and submitted it to the United States Postal Service (“USPS”) with the request
that mail addressed to “Mae Charlayne Johnston and Family” be forwarded to the Trustee.
The Trustee asserts that it was not his intention to misdirect Mr. Johnston’s mail. With his
“Motion to Dismiss and for Other Relief,” filed on April 5, 2012, Mr. Johnston attached
several documents pertaining to the change-of-address card, including a police report he had
filed concerning the matter and a USPS administrative decision denying a request from Mr.
Johnston for the original change-of-address card and referring him to federal court if he
wished to appeal the decision.
In its December 18, 2012 order, the trial court noted that it did not have jurisdiction
over violations of USPS regulations. In its Memorandum Opinion, incorporated into the
final judgment, the trial court found in pertinent part:
The Court finds that there may have been a change of address card filed
by Mr. [Francis] Johnston that inappropriately said and family and may have
caused Mr. Chuck Johnston some inconvenience, but there has been no
showing of any damage. Mr. Johnston filed in this case, but has not put on any
proof.
We conclude that the trial court correctly found in its December 2012 order that it did
not have jurisdiction over this element of Mr. Johnston’s counterclaim. See 39 U.S.C.A. §
404(6) (2007) (enumerating among the USPS’s specific powers, the power “to investigate
postal offenses and civil matters relating to the Postal Service.”). Mr. Johnston is not entitled
to relief on this issue.
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C. Denial of Subpoenas without Payment of Costs
Mr. Johnston claims that the trial court erred by denying his request for issuance of
subpoenas for the Decedent’s medical records without payment of court fees. He argues that
because the court had accepted his affidavit of indigency, the court should not have required
payment before issuing the subpoenas. In its December 18, 2012 order, following a hearing
conducted on November 8, 2012, the trial court sustained Mr. Johnston’s motion for the
Decedent’s medical records by granting limited access to the records for the time period of
December 7 through December 11, 2011. The court also sustained Mr. Johnston’s affidavit
of indigency but advised he would need to pay the court fees for issuing subpoenas. See
Tenn. Code Ann. § 8-21-409(a)(1)(B) (Supp. 2011).
Meanwhile, at the request of the Trustee, a subpoena duces tecum was successfully
issued to SkyRidge Medical Center for records spanning the time period allowed by the trial
court’s order. Upon submission, SkyRidge’s custodian of records certified the records’
completeness and attached an affidavit in compliance with Tennessee Code Annotated §§ 24-
7-119 (2000) and 68-11-406 (2013). Inasmuch as the medical records sought by Mr.
Johnston and allowed by the trial court’s order were presented properly to the trial court, we
determine this issue to be moot.
D. Denial of Jury Trial Demand
Mr. Johnston next contends that the trial court violated his right to a jury trial by
denying his demand therefor. The trial court considered Mr. Johnston’s jury demand during
the December 18, 2012 hearing, determining it to be untimely pursuant to Rule 38 of the
Tennessee Rules of Civil Procedure. The ruling was memorialized by the court’s written
order entered February 8, 2013. We agree with the trial court.
Rule 38.02 of the Tennessee Rules of Civil Procedure provides:
Any party may demand a trial by jury of any issue triable of right by jury by
demanding the same in any pleading specified in Rule 7.01 or by endorsing the
demand upon such pleading when it is filed, or by written demand filed with
the clerk, with notice to all parties, within fifteen (15) days after service of the
last pleading raising an issue of fact.
The pleadings specified by Rule 7.01 are as follows:
7.01. Pleadings. – There shall be a complaint and an answer; and there shall
be a reply to a counterclaim denominated as such; an answer to a cross-claim,
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if the answer contains a cross-claim; a third-party complaint, if a person who
was not an original party is summonsed under the provisions of Rule 14; and
there shall be a third-party answer, if a third-party complaint is served. No
other pleading shall be allowed, except that the court may order a reply to an
answer or to a third-party answer.
Tenn. R. Civ. P. 7.01. A party who fails to demand a jury trial as required by Rule 38 waives
the right to a jury trial. Tenn. R. Civ. P. 38.05.
As noted above, we measure a pro se litigant’s pleadings “by less stringent standards
than those applied to pleadings prepared by lawyers.” See Stewart, 368 S.W.3d at 462. Mr.
Johnston began including the words “Jury Requested” on all of his motions on October 19,
2012. Mr. Johnston filed no further pleadings specified by Rule 7 after he filed his “Motion
to Dismiss and for Other Relief,” in which he originally pled what he later referred to as a
cross-claim and the trial court treated as a counterclaim, on April 5, 2012. Mr. Johnston’s
multiple motions filed from that point forward were essentially applications to the court for
orders, as described in Rule 7.02.5 His notations of “jury requested” on these motions were
therefore not timely pursuant to Rule 38.02. Mr. Johnston is not entitled to relief on this
issue.
E. Denial of Motion for Judicial Notice
Mr. Johnston asserts that the trial court erred by failing to grant his “Motion for
Judicial Notice, Judicial Notice of Adjudicative Facts, and Judicial Notice of Law of the
Tennessee Rules of Evidence.” In this motion, filed on January 4, 2013, Mr. Johnston
repeated several of his earlier allegations against the Trustee and stated matters outside the
scope of this action or the jurisdiction of the trial court. Mr. Johnston also requested that the
trial court take judicial notice of specific rules of civil procedure and statutes. Following Mr.
Johnston’s explanation of the motion in his opening statement at trial, the court
acknowledged that judicial notice of laws does not require a motion and stated that it would
review the applicability of the rules and statutes cited. See Tenn. R. Evid. 202(a) (mandating
judicial notice of the common law, constitutions and statutes, and all rules adopted by the
United States Supreme Court and the Tennessee Supreme Court without any request by a
5
Mr. Johnston filed a “Motion for Additional Parties to be Brought in,” on October 19, 2012, in
which he alleged legal malpractice against the Trustee’s counsel and his own former counsel. He wrote “Jury
Requested” on this motion, as he did on all motions he filed from that date forward. The trial court denied
the motion in its order entered December 18, 2012. We do not construe Mr. Johnston’s motion to add trial
counsel as parties to be a third-party complaint under the provisions of Rule 14 of the Tennessee Rules of
Civil Procedure. See Tenn. R. Civ. P. 14.01.
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party required). The court properly denied the motion as to all conclusory statements
regarding the facts of the action and all matters beyond the scope of the lawsuit. This issue
is without merit.
F. Denial of Motion for Involuntary Dismissal
Mr. Johnston asserts that the trial court erred by failing to grant his motion for
involuntary dismissal, filed pursuant to Rule 41.02(1) of the Tennessee Rules of Civil
Procedure on January 4, 2013, ten days before the trial began. We conclude that the trial
court did not err in denying Mr. Johnston’s Rule 41.02(1) motion.
Rule 41.02(1) of the Tennessee Rules of Civil Procedure provides:
41.02. Involuntary Dismissal – Effect Thereof. – (1) For failure of
the plaintiff to prosecute or to comply with these rules or any order of court,
a defendant may move for dismissal of an action or of any claim against the
defendant.
We review a trial court’s grant or denial of a Rule 41.02 motion under an abuse of discretion
standard. See Langlois v. Energy Automation Sys., Inc., 332 S.W.3d 353, 357 (Tenn. Ct.
App. 2009); Cohen v. Clarke, No. M2012-02249-COA-R3-CV, 2014 WL 107967 at *4
(Tenn. Ct. App. Jan. 10, 2014). “The power to dismiss a party’s claims is best exercised
infrequently and only when the punishment fits the offense.” Langlois, 332 S.W.3d at 557(stating also: “Trial courts should exercise restraint when dismissing a party’s claims
because ‘[t]he interests of justice are best served when lawsuits are resolved on their merits
after trial.’” (quoting Orten v. Orten, 185 S.W.3d 825, 836 (Tenn. Ct. App. 2005) (Lee, J.,
dissenting)).
As a preliminary matter at trial, the court considered Mr. Johnston’s argument for
involuntary dismissal and dismissed the motion after the following exchange:
THE COURT: You said under 41.02 I need to dismiss this matter. Tell
me why.
MR. JOHNSTON: Because under 41.02, under one of the provisions, it says
I can move this Court for an order dismissing this case if
he fails to comply with any of the Rules of Civil
Procedure in the State of Tennessee or it can be
dismissed on refusing to obey an order of the Court or for
failure to prosecute. Not all of the above, any of the
above.
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THE COURT: And which one of those are you relying on?
MR. JOHNSTON: He has failed to comply with the Tennessee Rules of
Civil Procedure.
THE COURT: In what way?
MR. JOHNSTON: The restraining order was never filed. The ex parte
restraining order was granted. That’s under 65.05 that
must be filed in this court in order for that to be granted.
It was never granted. I mean, the order was granted, but
the complying with 65.05 was not.
And [the Trustee’s counsel] failed to provide
proper notice of the hearing and that’s a violation of
Rules 501 and 502. I think it’s a pretty big deal when she
would also violate United States Code when it comes to
mail fraud or, I’m sorry, postage unpaid on mail matter.
The rule itself, I believe, states simply any – it can
be dismissed on grounds of – for a plaintiff failing to
prosecute or it can be dismissed on grounds that the
plaintiff failed to comply with any of the Tennessee
Rules of Civil Procedure or it can be dismissed on
grounds that the plaintiff failed to abide by any order of
this court. And there are several he did not comply with,
as I’ve outlined in my motion. But just to a put a period
on the end of a sentence, this motion to dismiss was
never heard by this Court in contrast to what [the
Trustee’s counsel] would have you –
THE COURT: You mean in the way that it’s particularly couched at this
time?
MR. JOHNSTON: Okay. I can take that, yes.
THE COURT: Because you have argued before to dismiss the case, but
this time you’re using a different argument under the
Rule than you used previously.
MR. JOHNSTON: Yes. I wanted to put this information in the original
motion, but I didn’t think it was necessary and I waited
for an answer. So that’s why I’m bringing it to you
today.
THE COURT: Okay. Anything else?
MR. JOHNSTON: That’s it for now.
...
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THE COURT: Okay. Motion to dismiss denied. Anything else? Begin
the case today.
MR. JOHNSTON: I’m sorry?
THE COURT: We’re ready to begin the case today. You were
represented by counsel on 3/7/12. Counsel agreed the
$80,000 could remain in the clerk’s office. There’s been
no proof put into this motion hearing or any other hearing
otherwise. These motions have been argued before.
Based on the additional allegations, if any, that you’ve
made pursuant to TRCP 41, there is no restraining order
in this case. No bond was necessary and your motion to
dismiss for involuntary dismissal is denied.
Mr. Johnston again requested a Rule 41.02 dismissal at the close of all proof immediately
before the trial court ruled in the Trustee’s favor.
As the trial court noted in its ruling during trial, the issues Mr. Johnston raised to
support his Rule 41.02(1) motion had been previously decided by the trial court. We have
reviewed those issues within other sections of this opinion. Upon our thorough review of the
record, we determine that Mr. Johnston failed to demonstrate any violations of the Rules of
Civil Procedure that would warrant the sanction of involuntary dismissal. See Langlois, 332
S.W.3d at 357 (“Dismissal is normally appropriate only where there has been a ‘clear record
of delay or contumacious conduct.’”) (quoting Shahrdar v. Global Hous., Inc., 983 S.W.2d
230, 236 (Tenn. Ct. App. 1998)). The trial court did not abuse its discretion in denying Mr.
Johnston’s Rule 41.02(1) motion.
VII. Forgery
Mr. Johnston contends that the trial court erred by finding clear and convincing
evidence that the check dated December 9, 2011, for $80,000 was a forgery and no consent
was attained. The Trustee contends that the trial court properly found clear and convincing
evidence that the Decedent’s signature on the check was a forgery. Upon a careful and
comprehensive review of the record, we agree with the Trustee.
As relevant to this action, to forge a writing means to “[a]lter, make, complete,
execute or authenticate any writing so that it purports” to “[b]e the act of another who did not
authorize that act . . . .” See Tenn. Code Ann. § 39-14-114(a)(1)(A)(i) (2010); see also
Estate of Acuff v. O’Linger, 56 S.W.3d 527, 529 (Tenn. Ct. App. 2001). Forgery must be
proven by “clear, cogent and convincing” evidence for a trial court to set aside a written
instrument. See Estate of Acuff, 56 S.W.3d at 556.
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The trial court in its final judgment found, by clear and convincing evidence, that “the
check dated December 9, 2011, for $80,000.00 is a forgery and that no consent was obtained,
and in fact consent could not be obtained from Mae Charlayne Johnston as she was bed
bound and nonresponsive at the time of the date on the check.” In its Memorandum Opinion,
issued from the bench and incorporated into the judgment, the trial court made the following
specific findings of fact:
Mae Charlayne Johnston was admitted to the hospital on 12/8/2011.
She was unresponsive, not communicative and had no change in her condition
until she died on December 11th, 2011. She was bed bound and
nonresponsive.
Exhibit 3 [the check] shows the date of the check of 12/9/11 while she
was in the hospital and unconscious. There is no proof that it was written on
12/5/11 as stated by the defendant [Charles Johnston] in some of his argument,
but no testimony. And while the defendant at times in this case says that –
makes statements of – while the defendant says in times – at times as a witness
in this case, he put no proof on that it was signed on 12/5/11. The document
in this case speaks for itself. It says on its face it was written on 12/9/11 and
based on the testimony I have, I find by clear and convincing evidence that this
document was a forgery at the time and there was no consent and consent
could not be obtained from Mae Charlayne Johnston for that document to
come out to – of her trust account and go directly to Mr. Johnston. The Court
orders the return of the $80,000 to the estate or the trust as that was denoted
in this matter.
The check at issue was dated December 9, 2011, and was deposited by Mr. Johnston
on that date. It was undisputed and medical records demonstrated that the Decedent was
unresponsive from the time she was admitted to Skyridge on December 8, 2011, through her
death on December 11, 2011. Such evidence establishes that it was impossible for the
Decedent to have signed the check or given Mr. Johnston permission to sign for her on
December 9, 2011. The Decedent’s cousin testified that she visited the Decedent every day
from December 8 through December 11, 2011, and that the Decedent was “frozen” and could
not move or communicate. She reviewed the $80,000 check and stated that the signature did
not match what she knew the Decedent’s signature to be.
It is undisputed that previously on September 30, 2011, the Decedent executed a
durable power of attorney, appointing Mr. Johnston as her attorney in fact, and that she had
at some point added him as a joint account holder to her personal checking and savings
accounts. The respective power of attorney, however, provided no authorization for the Trust
account on which the $80,000 check was written. As the trial court noted, Mr. Johnston
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made statements presenting his version of the facts during his opening and closing
arguments. See State v. Reid, 164 S.W.3d 286, 343 (Tenn. 2005) (explaining that opening
statements “‘do not amount to stipulations and certainly are not a substitute for the pleadings
or for the evidence.’” (quoting Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 732 (Tenn.
1978))); Chiozza v. Chiozza, 315 S.W.3d 482, 492 (Tenn. Ct. App. 2009) (noting that the
transcript provided in the record included “only opening statements of Counsel [which is not
considered evidence]”); Riad, 2013 WL 5874733 (“Opening statements are not evidence and
cannot be characterized as such.”); Wilson v. Americare Sys. Inc., No. M2008-00419-COA-
R3-CV, 2009 WL 890870 at *6 (Tenn. Ct. App. Mar. 31, 2009) (“Statements and arguments
of counsel made during the course of a hearing are not evidence.”).
During his opening statement at trial, Mr. Johnston offered the following explanation:
So the check for $80,000 was signed on December 5th, not December
9th as they allege. I have put that date in. I wrote the check. She signed it and
this was on the same day, November – I’m sorry, December 5th, that I actually
had a meeting with Life Care as to how we were going to afford to pay for
these services now because we were out of insurance and we were also out of
– we were at a state – we were at a state and time in history where the
insurance was coming to an end and any Medicaid was coming to an end.
Mr. Johnston did not testify under oath during the trial and presented no proof to
support his description of how and when the check was written. From a thorough
examination of the record before us, we conclude that the trial court did not err in finding
clear and convincing evidence that the $80,000 check was a forgery.
VIII. Counterclaim
A. Damages
Mr. Johnston contends that the trial court erred by dismissing his counterclaim for
damages. The trial court in its final judgment found that Mr. Johnston “did not carry his
burden of proof as to his counter-complaint . . . .” We agree with the trial court.
Mr. Johnston’s primary claim for damages was for the $80,000 held by the trial court
to be awarded to him. This request is based on his assertion that the Trustee caused him
financial ruin by petitioning the trial court to order the $80,000 removed from the joint
savings account he held with the Decedent. Having determined that the trial court did not
err in finding clear and convincing evidence that the $80,000 check was a forgery, we also
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determine that the trial court did not err in awarding the $80,000 to the Trustee for return to
the Trust.
Other compensatory damages requested by Mr. Johnston in his counterclaim included
$48,000 as reimbursement for a year of caregiving to the Decedent, $4,000 in litigation costs,
$2,900 for lost personal property, and punitive damages for his health and housing costs
experienced because of lost funds. Mr. Johnston bases his claim in part on the fact that
SunTrust Bank froze all of his accounts in response to the trial court’s ex parte restraining
order. The court did not order and the Trustee did not petition for all of Mr. Johnston’s
accounts to be frozen, however. Moreover, the trial court ordered SunTrust Bank to release
all of Mr. Johnston’s funds in its March 9, 2012 order. Mr. Johnston failed to present
evidence that the Trustee was liable for any injury to Mr. Johnston. The trial court did not
err in dismissing Mr. Johnston’s counterclaim for damages.
B. Wrongful Eviction
Mr. Johnston contends that the trial court erred by failing to find the Trustee liable
for wrongful eviction, or unlawful ouster, pursuant to Tennessee Code Annotated §§ 66-28-
502 and -504 (2004) of the Uniform Residential Landlord and Tenant Act (“URLTA”).6 The
Trustee contends that the trial court properly dismissed Mr. Johnston’s wrongful eviction
claim with the remainder of his counterclaim because Mr. Johnston failed to carry his burden
of proof to show that a wrongful eviction occurred. We agree with the Trustee.
Tennessee Code Annotated § 66-28-504 provides:
If the landlord unlawfully removes or excludes the tenant from the premises
or willfully diminishes services to the tenant by interrupting essential services
as provided in the rental agreement to the tenant, the tenant may recover
possession or terminate the rental agreement and, in either case, recover actual
damages sustained by the tenant, and punitive damages when appropriate, plus
6
According to the version of Tennessee Code Annotated § 66-28-102(a) governing at the time the
instant action was commenced, the URLTA was applicable “only in counties having a population of more
than sixty-eight thousand (68,000) according to the 1970 federal census or any subsequent federal census.”
The Tennessee General Assembly amended section 102(a) in 2012 to applicability for “counties having a
population of more than seventy-five thousand (75,000), according to the 2010 federal census or any
subsequent federal census.” See Pub. Acts 2012, ch. 847, § 2. We take judicial notice for the purpose of
applying URLTA to this action that according to the United States Census Bureau official website, the
population of Bradley County as of the 2010 federal census was 98,863. See Counts v. Bryan, 182 S.W.3d
288, 293 (Tenn. Ct. App. 2005) (holding that pursuant to Rule 201 of the Tennessee Rules of Evidence, a
court may take judicial notice of facts “capable of accurate and ready determination” in its own proceedings).
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a reasonable attorney’s fee. If the rental agreement is terminated under this
section, the landlord shall return all prepaid rent and security deposits.
See also Tenn. Code Ann. § 66-28-502 (delineating the remedy available to a tenant deprived
by a landlord of essential services).
The Trustee acknowledged at trial that he had stopped electrical and other services to
the Decedent’s Cleveland residence on December 27, 2011, nineteen days after the
Decedent’s death. Mr. Johnston argues that the cessation of services operated as a
constructive eviction, forcing him to vacate the residence where he had lived for the
preceding year with the Decedent. A family friend testified that at the Trustee’s request, he
changed the locks on the Decedent’s residence in March 2012. It is undisputed that at the
time of trial, Mr. Johnston had not lived in the Decedent’s home since December 2011.
The trial court found in dismissing Mr. Johnston’s counterclaim in its entirety that he
had not presented any proof to support his claim. The Trust document presented by the
Trustee demonstrated that the Decedent had executed a quitclaim deed, conveying her
Cleveland residence to her Trust, on December 10, 2003. According to the Trust document,
the Trustee became responsible for managing the residence upon the Decedent’s death. Mr.
Johnston offered no proof at trial that he had entered into a rental agreement with either the
Decedent or the Trustee and thus failed to demonstrate that he was a tenant entitled to
protection under the URLTA. See Tenn. Code Ann. §66-28-104(15) (Supp. 2013) (“Tenant
means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion
of others; . . . .”). The trial court did not err in dismissing Mr. Johnston’s claim for wrongful
eviction.
IX. Attorney’s Lien
Mr. Johnston asserts that the trial court erred by placing a lien for $3,260 in attorney’s
fees due his former counsel, Mr. Logan, upon Mr. Johnston’s share of the $80,000 held by
the clerk and master on behalf of the Estate. We disagree.
Pursuant to Tennessee Code Annotated § 23-2-102 (2009), “[a]ttorneys and solicitors
of record who begin a suit shall have a lien upon the plaintiff’s or complainant’s right of
action from the date of the filing of the suit.” Two types of attorney’s liens exist in
Tennessee either by common law or by statute. Starks v. Browning, 20 S.W.3d 645, 650
(Tenn. Ct. App. 1999). A retaining lien is a possessory lien “that permits a lawyer to retain
a client’s books, papers, securities, or money coming into his or her possession during the
course of the representation until the attorney and client have settled their fee dispute or until
the client has otherwise posted appropriate security for the outstanding fee.” Id. A charging
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lien, at issue in the instant action, “is based on a lawyer’s equitable right to have the fees and
costs due for the lawyer’s services in a particular action secured by the judgment or recovery
in that action.” See id.Generally, after an attorney’s lien has been declared, the attorney must commence a
separate action to enforce his or her contractual right to a fee. Starks, 20 S.W.3d at 653. An
exception applies, however, “to cases in which the money or property upon which the lien
is to be enforced comes within the control of the court in the case in which the services were
rendered.” Id. (explaining that “[w]hen the court is able to exert jurisdiction directly over
the funds or property, the attorney need not resort to a separate suit to enforce his or her
lien.”). As this Court explained in Starks:
The courts may decline to enforce an attorney’s fee contract only (1) when the
attorney did not negotiate the contract in good faith, see Alexander v. Inman,
974 S.W.2d [689,] 693-94 [(Tenn. 1998)], (2) when the contract provides for
an unreasonable fee, see White v. McBride, 937 S.W.2d 796, 800-01 (Tenn.
1996), or (3) when the attorney has otherwise breached his or her fiduciary
obligations to the client and this breach has prejudiced the client’s interests.
See Crawford v. Logan, 656 S.W.2d [360,] 365 [(Tenn. 1983)]; Alexander v.
Inman, 903 S.W.2d 686, 694 (Tenn. Code Ann. 1995); Coleman v. Moody, 52
Tenn. App. 138, 155, 372 S.W.2d 306, 311-314 (1963).
Id. at 650.
Attorney Logan filed a “Motion to Withdraw and Impose a Lien” on March 15, 2012,
three days after Mr. Johnston filed his first pro se motion. The trial court granted the
attorney’s lien following a hearing conducted on March 22, 2012, at which Mr. Johnston
failed to appear. Mr. Logan filed with his motion a copy of the representation agreement,
which provided for an attorney’s lien in an instance of nonpayment, and itemization of
outstanding fees due. In its resultant May 15, 2012 order, the trial court made the following
findings of fact in pertinent part:
From the record in this cause, it appears that good, lawful and sufficient
reasons exist to allow James F. Logan, Jr. and the law firm of Logan-
Thompson, P.C. to withdraw from further representation of the Defendant
Charles Glen “Chuck” Johnston. It further appears appropriate and proper for
said law firm to be granted their contractual lien upon the funds of Charles
Glen “Chuck” Johnston for payment of their attorneys’ fees. The Court having
reviewed the billings incident to the representation of the Defendant finds that
the fees sought in the amount of $3,260.00 are fair, reasonable and appropriate.
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Mr. Johnston failed to appear at the hearing on Mr. Logan’s motion to withdraw and
impose a lien.7 He at no time presented evidence to negate the representation agreement or
the itemized charges. Mr. Johnston argues that Mr. Logan breached his fiduciary duty by
agreeing on Mr. Johnston’s behalf to have the trial court hold the $80,000 in dispute. Mr.
Logan disputed this assertion in his sworn response to the trial court, stating that he had
discussed the matter in depth with Mr. Johnston and that Mr. Johnston consented to have the
$80,000 held by the court. See White v. McBride, 937 S.W.2d 796, 802 (Tenn. 1996) (“The
attorney is an officer of the courts in which he is a practitioner, and courts jealously hold him
to the utmost good faith in the discharge of his duty.”). Moreover, as noted above, the trial
court acted within its authority to order the $80,000 held by the court clerk without consent
from Mr. Johnston. See Tenn. R. Civ. P. 67.02-.03. We determine that the trial court did not
err by imposing the attorney’s lien or in finding Mr. Logan’s fees to be reasonable. See
Tenn. Sup. Ct. R. 8, RPC 1.5.
In addition to imposing the attorney’s lien, the trial court ordered respective payment
from Mr. Johnston’s portion of the $80,000 at issue. In its final judgment, entered February
13, 2013, the trial court directed in pertinent part:
The Clerk and Master shall release the funds held in this cause by the
registry of the court to Francis L. Johnston as Personal Representative for the
Mae Charlayne Johnston Estate, less the lien which was previously imposed
against the portion of Charles Johnston’s portion of the funds held by the Clerk
and Master, pursuant to the prior order entered nunc pro tunc on March 22,
2012 in the amount of $3,260.00 together with accrued interest to the date of
payment thereof[.]
The trial court subsequently entered an Order of Clarification, directing the clerk and master
to “distribute the lien of $3,260.00 to attorney James Logan, Jr. and the balance of
$80,000.00 to Francis L. Johnston as the Personal Representative of the Mae Charlayne
Johnston estate.”
7
Attorney Logan’s motion included a certificate of service stating that he had mailed the motion to
Mr. Johnston at the Steed Street residence, which was Mr. Johnston’s last known address, on March 15,
2012. Mr. Johnston states in his brief on appeal that he did not receive the motion until the day of the
hearing, March 22, 2012. As noted in an earlier section of this opinion, Mr. Johnston did not provide the trial
court with an updated mailing address and in fact requested at trial that the court continue to send mail to
the Steed Street address.
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Having concluded that the trial court properly ordered the $80,000 at issue held
pending final disposition of this action, we also conclude that the court properly exerted
jurisdiction over the $80,000. The court did not err, therefore, in ordering that the attorney’s
lien be paid from Mr. Johnston’s share of the funds held pending final disposition. See
Starks, 20 S.W.3d at 653.
X. Clerk and Master’s Receipts
Mr. Johnston asserts that the trial court erred by allowing the clerk and master to
include two receipts in the court file for the $80,000 held in the instant action, one with the
origin designated as SunTrust Bank and the other with the origin marked as “F.L. Johnston”
(the Trustee). Mr. Johnston attempted to raise this issue with the trial court at the beginning
of the second day of trial, and the court informed him that he would need to call the clerk and
master as a witness regarding an internal process of the clerk’s office if he wished to pursue
the matter. The issue was not raised again at trial. We are therefore unable to review any
action of the trial court in relation to the receipts at issue. See Dorrier v. Dark, 537 S.W.2d
888, 890 (Tenn. 1976) (“This is a court of appeals and errors, and we are limited in authority
to the adjudication of issues that are presented and decided in the trial courts . . . .”)
(emphasis added). We note that it was undisputed throughout this action that the $80,000
was transferred from SunTrust Bank to the clerk and master upon order of the trial court.
XI. Post-Judgment Facts
Mr. Johnston has filed two motions, pursuant to Rule 14 of the Tennessee Rules of
Appellate Procedure,8 asking this Court to consider the post-judgment facts that (1) SunTrust
Bank closed Mr. Johnston’s last remaining account at that institution due to lack of funds and
(2) he has incurred additional losses of personal property due to financial need. We find that
these facts do not affect the position of the parties or the subject matter of the action;
therefore, we deny consideration of these post-judgment facts. See Tenn. R. App. P. 14 (a);
see, e.g., Town of Dandridge v. Patterson, 827 S.W.2d 797, 802 (Tenn. Ct. App. 1991).
XII. Conclusion
8
Mr. Johnston states that he is filing these motions pursuant to Rules 22 and 24 of the Tennessee
Rules of Appellate Procedure. As the motions are requests for this Court to consider post-judgment facts,
however, we are treating them as Rule 14 motions. See Stewart, 368 S.W.3d at 462 (noting that we measure
a pro se litigant’s pleadings “by less stringent standards than those applied to pleadings prepared by
lawyers.”).
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For the reasons stated above, the judgment of the trial court is affirmed in all respects.
Costs on appeal are taxed to the appellant, Charles Glen Johnston. This case is remanded to
the trial court, pursuant to applicable law, for enforcement of the trial court’s judgment and
collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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