In Re Conservatorship Of Ruth Tomlinson Osborn ( 2021 )

11/05/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 18, 2021 Session
IN RE CONSERVATORSHIP OF RUTH TOMLINSON OSBORN
Appeal from the Chancery Court for Putnam County
No. 2015-39 Ronald Thurman, Chancellor
___________________________________
No. M2020-01447-COA-R3-CV
___________________________________
Aristotle once explained that “it is possible to fail in many ways . . . while to succeed is
possible only in one way[.]”1 With some notable exceptions, in order for an issue to be
proper on appeal, success depends on the following requirements: (1) that an issue be
properly raised in the trial court; and (2) that the issue be properly raised on appeal. Of the
three arguments Appellants presented in this appeal, none meets both of the above
requirements, though they all fail in different respects. As a result, we affirm the decision
of the trial court and award Appellee attorney’s fees for defending against a frivolous
appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ANDY D.
BENNETT and KENNY ARMSTRONG, JJ., joined.
Lynda W. Patterson, Livingston, Tennessee, for the appellants, Harlen Dixon and Grace
Dixon.
Daniel H. Rader, IV, Cookeville, Tennessee, for the appellee, Kelly Tayes, Private
Conservator, LLC.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
The particular issue in this case concerns the trial court’s 2019 decision over the
severance and sale of a piece of real property jointly owned by a ward and a pair of third-
party relatives. This case began, however, more than four years earlier. This case originated
1
Aristotle, Nicomachean Ethics, Book 2, § 8 (W. D. Ross trans., The Internet Classics Archive
1994–2000), available at http://classics.mit.edu/Aristotle/nicomachaen.2.ii.html.
on February 20, 2015, when the Tennessee Department of Human Services (“DHS”) filed
a complaint for authorization to consent to protective services for Ruth Tomlinson (“the
Ward”)2 in the Putnam County Chancery Court (“the trial court”). DHS asked that the trial
court enter an emergency temporary order designating Kelly Tayes, Private Conservator
LLC to be responsible for the welfare of the Ward and to be permitted to consent to services
on her behalf. The same day, Chancellor Ronald Thurman entered an order granting a
temporary emergency order, appointing counsel for the Ward, and setting a hearing on
DHS’s complaint. On February 25, 2015, the trial court entered an order continuing the
hearing and appointing a guardian ad litem for the Ward. Following a hearing involving
stipulated medical testimony, on March 4, 2015, the trial court entered an order finding
that the Ward was in need of protective services and appointing Kelly Tayes as the
individual responsible for the Ward’s welfare and for consenting to protective services.
On May 1, 2015, DHS filed a petition for the appointment of a conservator, under
the same docket number as the emergency petition. The petition noted that one of the
relatives of the Ward that was entitled to receive notice was Appellant Grace Dixon, the
Ward’s daughter. Attached to the petition was a medical examination report for the Ward
that indicated the medical basis for the petition. On May 4, 2015, the trial court appointed
a guardian ad litem for the Ward and set a hearing. On May 7, 2015, Ms. Dixon and her
husband, Appellant Harlen Dixon (together, “Appellants”), by and through counsel, filed
a motion for a continuance of the conservatorship hearing. On the same day, Appellants’
counsel filed a notice of appearance on their behalf. On May 8, 2015, Kelly Morgan and
Donnita Hill d/b/a Hill Realty (“Hill Realty”) filed a motion to intervene for purposes of
selling a piece of real estate under contract entered into by the Ward.
A hearing on the motion for the appointment of a conservator was held on May 8,
2015. On the same day, the trial court entered an order appointing Kelly Tayes as
conservator for the Ward (hereinafter, “the Conservator”).
On May 20, 2015, Hill Realty filed a motion to approve the sale of real estate located
at 133 West High Street in Cookeville, Tennessee. The motion noted that the Ward had
entered into a contract for the sale of the property in 2014, before this case was initiated.
On September 1, 2015, the trial court approved the Conservator’s first annual
property management plan and inventory. On September 2, 2015, the trial court entered an
agreed order granting Hill Realty’s motion to intervene and approving the sale of the High
Street property. The order noted that the guardian ad litem had performed a full
investigation on the proposed sale and found that while the price was below the tax
2
The Ward is also listed in the record variously as Ruth Osborn Tomlinson, Ruth Tomlinson
Osborn, Ruth Tomlinson, and Ruth Osborn. The parties both refer to the Ward by the last name Tomlinson
throughout their briefs.
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appraisal, the price was reasonable and in the Ward’s best interest. Other than approval of
annual accountings by the Conservator, the case was dormant for the next three years.
On May 11, 2018, the Conservator filed a motion to confirm a settlement between
it and Appellants. According to the motion, the Conservator
filed a third-party suit against [Appellants] relating to transfers of real
property from the [W]ard to these individuals. This matter has been
aggressively litigated, depositions taken, and motions filed. The parties have
reached a settlement whereby [Appellants] will convey certain properties
back to the ward, and make payments to the [W]ard.
Attached to the motion was a signed settlement agreement (“the Settlement Agreement”)
providing, in relevant part, as follows: (1) Appellants would transfer real property at 88
Quinland Lake Road and 1615 Louisiana Avenue in Cookeville, Tennessee to the Ward,
care of the Conservator, or could “retain ownership of either o[r] both of these properties
for their respective 2017 tax appraised values provided they provide notice of their election
of this option and tender said payment within a reasonable time of the approval of this
agreement”; (2) Appellants would pay $2,500.00 per month to the Ward, care of the
Conservator, for the remainder of the Ward’s life, for her care, treatment and support; and
(3) Appellants and the Ward would continue to co-own property at 4840 Fox Knob Lane
in Cookeville, Tennessee, which Mr. Dixon would manage as rental property and retain
the rental proceeds therefrom.3 The final provision, however, contained a caveat
concerning the Fox Knob Lane property:
However, if [the Ward] needs medical care, and there is no other viable
option to pay for said care other than selling this property, the parties agree
that they shall cooperate to sell said property, shall list it and shall agree to a
reasonable sales price or an auction, at the written option of either party. Each
party agrees that this provision may be specifically enforced and that a formal
partition suit will not be necessary to enforce the terms of this contingency
once it occurs.
The Conservator asked that the trial court grant it permission to enter into and consummate
the settlement agreement. The motion was served on counsel for Appellants, who had
previously filed a notice of appearance. On May 11, 2018, the trial court entered an order
approving the settlement agreement and authorizing the Conservator to consummate the
settlement. The order was signed by counsel for Appellants. Appellants filed a second
notice of appearance on October 16, 2018.
3
There is no dispute in this case that the property is held in a joint tenancy with rights of
survivorship.
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As is relevant to this appeal, on December 7, 2018, the Conservator filed a motion
to sell both the Quinland Lake Road property and the jointly-owned Fox Knob Lane
property. In the motion, the Conservator alleged that Appellants failed to pay their
obligations under the Settlement Agreement and that the Ward lacked resources to continue
home care. A hearing on the motion was set for December 21, 2018.
Appellants filed three motions on December 14, 2018. First, Appellants filed a
motion to continue the hearing on the motion to sell real estate. The motion argued that the
sale of the Fox Knob Lane property was not necessary and that further discovery needed
“to be conducted to determine the nature and extent of the Conservator’s efforts to obtain
funds from other sources.” Second, Appellants filed a motion to compel the visitation that
had been agreed upon in the Settlement Agreement, “if the [c]ourt determines it has
jurisdiction over the parties’ Settlement Agreement.” Finally, Appellants filed a motion to
dismiss or transfer all motions regarding the parties’ Settlement Agreement to the judge
who had presided over that matter. According to this motion,
1. The parties were involved in collateral litigation, Kelly Tayes Private
Conservator LLC v. Harlen and Grace Dixon, et al, Putnam County
Chancery Court Case No. 2015 CV 77.
2. Your honor recused himself and the case was transferred to Judge
Pemberton.
3. The parties ultimately settled the case. As part of that case, they entered
into a Settlement Agreement that was approved by Judge Pemberton,
after your honor approved it on behalf of the Ward, Dr. Ruth Osborn.
4. This Court does not have jurisdiction over Harlen and Grace Dixon in this
proceeding. They have not been properly joined nor could they on these
particular pleadings.
Thus, Appellants asked that the trial court either dismiss the Conservator’s motion to sell
the real property or, in the alternative, transfer the matter to Judge Pemberton.
On January 3, 2019, the trial court entered an agreed order entered into by both the
Conservator and Appellants, by and through their counsel. The order provided that the
parties agreed to sell the Quinland Lake Road property, that Appellants would pay the sum
of $10,000.00 “toward the past due agreed settlement payments,” and that the dispute over
the sale of the Fox Knob Lane property would be reserved for hearing on January 25, 2019.
The hearing over the sale of the property was later continued by agreement.
On June 11, 2019, Appellants filed a pre-trial memorandum on the issue of the sale
of the Fox Knob Lane property. The pre-trial memo noted the separate action, which they
asserted had resulted in a settlement “on terms very favorable to [Appellants].” Appellants
further asserted that based on the provision in the Settlement Agreement for the sale of the
Fox Knob Lane property if the Ward “had no other funds for medical treatment,” the
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Conservator had now asked to sell the jointly owned property. Appellants asserted that they
had filed a motion to dismiss “based on lack of jurisdiction” while seeking to have their
previously agreed-upon visitation enforced. The pre-trial memo further noted that
Appellants were asserting both procedural and substantive objections to the sale.
Procedurally, they asserted that because the Settlement Agreement “was approved by a
different judge in a different case,” that judge should hear any dispute concerning it, not
the current judge who had previously recused. Appellants also asserted that they “are not
properly before the court in this matter. They are only here as interested parties in the
conservatorship. They have never been served with process on anything related to the
settlement agreement or the conservatorship.” Substantively, Appellants argued, inter alia,
that the sale of the Fox Knob Lane property was not appropriate at that time because other
property could be liquidated to pay the Ward’s medical expenses.
A final hearing on the Conservator’s motion to sell the Fox Knob Lane property
occurred on June 18, 2019. Several witnesses testified, including the Conservator, a real
estate agent, the Ward’s daughter Joyce Parker, and Mr. Dixon. The trial court entered an
order approving the severance of the joint tenancy and the sale of the Fox Knob Lane
property on July 8, 2019. Therein, the trial court noted that Appellants argued that they
“were not properly before the [c]ourt” and for a continuance. The trial court denied the
continuance and noted that Appellants had entered into a Settlement Agreement providing
for the sale of the property if necessary for the care of the Ward, which was not subject to
relitigation.
The trial court further found that based on the testimony and proof presented, it was
in the Ward’s best interest to sever the joint tenancy and sell the Fox Knob Lane property
in order to allow the Ward to remain in home care, rather than a nursing home. The trial
court supported its ruling with detailed findings. Thus, the trial court ruled that the
Conservator “may sell” the Fox Knob Lane property and was authorized to immediately
unilaterally sever the survivorship interest. The trial court designated its ruling as final
pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.4
Less than one month later, Appellants filed a motion to amend the trial court’s
judgment pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure. Relevant to
this appeal, Appellants argued that they were never properly before the trial court because
they “were never placed before the [c]ourt’s jurisdiction” through the filing of a proper
petition. In support, Appellants argued that Tennessee Code Annotated section 35-5-101
4
Rule 54.02(1) provides, in relevant part, as follows:
When more than one claim for relief is present in an action, whether as a claim,
counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the
Court, whether at law or in equity, may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction for the entry of judgment.
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“et. seq.”5 requires “at least some formal proceeding bringing the parties before the Court
for the requested relief of a sale.” According to Appellants, the trial court’s ruling was
“unprecedented” and “flies in the face of the most fundamental procedural requirements
under the Rules of Civil Procedure and the Tennessee Code.” As a result, Appellants
argued that the trial court “lacked jurisdiction to proceed in this matter, yet did so anyway
without requiring the Conservator to observe the most fundamental elements of civil
procedure.” As a result, Appellants asked that the trial court reverse its decision and
“require the Conservator to follow the Rules of Civil Procedure and satisfy the law’s
requirements to sell a third party’s interest in real property.” Appellants also raised
arguments concerning the trial court’s denial of their oral motion for a continuance and the
trial court’s substantive finding that sale of the Fox Knob Lane property was necessary,
legally sound, and in the Ward’s best interest. Finally, Appellants took issue with the
propriety of the trial court’s written order.
The trial court did not resolve Appellants’ motion to alter of amend for some time.
On November 1, 2019, the Ward passed away. The conservatorship was thereafter wound
up and closed by order of September 23, 2020. In this order, the trial court also denied
Appellants’ pending motion to alter or amend as not well-taken. Appellants thereafter filed
a timely notice of appeal to this Court on October 16, 2020.
II. ISSUES PRESENTED
Appellants raise three issues in this appeal, which are taken, and slightly restated,
from their brief:
1. Whether the Due Process rights of Appellants were violated by the trial
court’s decision to sever the survivorship interest and order the sale of
property owned jointly by them and the Conservator and by the trial
court’s dismissal of the Appellants’ Rule 59.04 Motion based upon same.
2. Whether the procedural due process rights of the Appellants were
violated by the decision of the trial court.
3. Whether the trial court erred in hearing the case after the Judge on his
own motion recused himself.
In the posture of appellee, the Conservator also seeks an award of attorney’s fees incurred
on appeal.
III. STANDARD OF REVIEW
5
Section 35-5-101 contains requirements applicable to “any sale of land to foreclose a deed of trust,
mortgage or other lien securing the payment of money or other thing of value or under judicial orders or
process[.]” Tenn. Code Ann. § 35-5-101(a), (e).
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We review the trial court’s findings of fact following a bench trial “de novo upon
the record of the trial court, accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d).
The trial court’s legal conclusions, however, are reviewed de novo with no presumption of
correctness. Estate of Haire v. Webster, 570 S.W.3d 683, 690 (Tenn. 2019). To the extent
that Appellants assert that the trial court erred in denying their motion to alter or amend,
we review the trial court’s decision for an abuse of discretion. Harmon v. Hickman Cmty.
Healthcare Servs., Inc., 594 S.W.3d 297, 305 (Tenn. 2020).
IV. DISCUSSION
A.
The first two issues raised by Appellants both concern alleged violations of their
due process rights. This issue was properly designated as an issue on appeal. It was also
argued in the body of Appellants’ brief. Childress v. Union Realty Co., 97 S.W.3d 573,
578 (Tenn. Ct. App. 2002) (“We consider an issue waived where it is argued in the brief
but not designated as an issue. Similarly, when a party raises an issue in its brief, but fails
to address it in the argument section of the brief, we consider the issue to be waived.”).
Whether it was sufficiently argued on appeal, however, is in question. For example,
while Appellants cite authority for the proposition that a property interest gives rise to a
due process right, they cite no authority to suggest that they have any present protected
property interest in the joint tenancy that gives rise to due process protections. See Sneed
v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010) (“It
is not the role of the courts, trial or appellate, to research or construct a litigant’s case or
arguments for him or her, and where a party fails to develop an argument in support of his
or her contention or merely constructs a skeletal argument, the issue is waived.”).
Tennessee caselaw actually suggests the opposite. As the Tennessee Supreme Court
explained, “[t]o be entitled to procedural due process protection, a property interest must
be . . . a ‘legitimate claim of entitlement’ to a specific benefit . . . [that] cannot be removed
except ‘for cause.’” Keller v. Casteel, 602 S.W.3d 351, 358 (Tenn. 2020) (quoting Tenn.
Dep’t of Corr. v. Pressley, 528 S.W.3d 506, 513–14 (Tenn. 2017). But a joint tenancy can
be severed “unilaterally” by one party “at his will”—that is, entirely without cause. See
Bryant v. Bryant, 522 S.W.3d 392, 411 (Tenn. 2017) (“We join the majority of
jurisdictions in following the common-law doctrine of severance and hold that a joint
tenancy with an express right of survivorship may be severed and the estate thereby turned
into a tenancy in common, by any one of the joint owners, at his will.”) (citation and
quotation marks omitted); cf. Harney v. Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922
(Tenn. 1990) (noting, in the employment context, that “at will” means that an employee
may be discharged for “good cause, bad cause or no cause at all”). And even assuming that
there was some recognized property interest to protect in this case, Appellants have not
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cited any law to suggest that they were deprived of all the process that was due under the
circumstances, given that they were provided actual notice of the Conservator’s intent to
sell and fully participated in the proceedings to sell the real property at issue. See Keisling
v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (quoting State v. Pearson, 858 S.W.2d 879,
884 (Tenn. 1993)) (“Basic due process requires ‘notice reasonably calculated under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.’”). Still, setting aside the sufficiency of
Appellants’ argument, there is no question that Appellants’ brief at least minimally raised
this issue as a proper issue for appellate relief.
The most significant problem that befalls Appellants’ due process argument is not
how it was addressed on appeal, but how it was raised in the trial court. Simply put, this
argument was not raised in the trial court. Here, Appellants filed several papers in response
to the Conservators’ motion to sell the jointly-owned property, including a motion to
continue, a motion to dismiss, multiple agreed orders, a pre-trial brief, and a motion to alter
or amend the judgment ordering the sale of the property. None of these filings ever
mentioned any due process protections or the alleged lack thereof. To be sure, Appellants
did argue on multiple occasions that they were “not before” the trial court because no
formal petition had been filed nor had service of process been issued and served. But
Appellants never framed this issue as a lack of due process.
As Appellants’ first issue explicitly asserts that the trial court violated their due
process rights by denying their motion to alter or amend, we find this motion particularly
instructive on this question. This pleading is where Appellants best elucidate their objection
that they were “not before” the trial court. In particular, Appellants cite, for the first time,
Tennessee rules and statutes that they argue do not countenance the trial court’s decision
to sever the joint tenancy in the absence of a formally filed pleading.6 No constitutional
issues, however, are mentioned, even in passing. Thus, even if this question could be raised
for the first time in a post-trial motion, Appellants simply did not do so. But see In re
M.L.D., 182 S.W.3d at 895 (“A Rule 59 motion should not be used to raise or present new,
previously untried or unasserted theories or legal arguments.”). Instead, the very first time
that due process was even mentioned by Appellants was in their brief to this Court.
Arguments that implicate due process, like most other arguments, may be waived
when they are raised for the first time on appeal. See Inzunza v. State, No. M2011-02641-
CCA-R3-PC, 2013 WL 57878, at *3 (Tenn. Crim. App. Jan. 7, 2013) (“We also agree with
the State that the petitioner has waived consideration of her claim that due process
considerations should operate to toll the statute of limitations because she failed to raise
6
Neither Appellants’ motion to dismiss nor their pre-trial brief cites a single case, statute, rule, or
constitutional provision to support the argument that they are “not properly before the [trial] court in this
matter.” Appellants’ motion to alter or amend barely corrects this deficiency, citing only generally to
Tennessee Code Annotated section 35-5-101 “et seq.” and “Rules of Civil Procedure and the Tennessee
Code.”
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the issue in her petition or before the post-conviction court.”); Seales v. State, No. M2011-
01151-CCA-R3-PC, 2012 WL 2873381, at *3 (Tenn. Crim. App. July 13, 2012)
(concluding that petitioner’s claim that due process considerations should toll the statute
of limitations was waived because petitioner presented the issue for
the first time on appeal); Diotis v. State, No. W2011-00816-CCA-R3-PC, 2011 WL
5829580, at *2 (Tenn. Crim. App. Nov. 17, 2011) (“We need not tarry long over the
petitioner’s claim of due process tolling because he has presented the claim for
the first time on appeal.”). Here, Appellants had every opportunity to argue that they were
being deprived of a property interest in violation of due process in the trial court. They
failed to do so in any fashion. Because this argument cannot be raised for the first time on
appeal, it is waived.
B.
In the argument section of their brief relevant to their second issue on appeal,
Appellants also argue that the trial court lacked personal jurisdiction over them.
Unfortunately for Appellants, this argument succumbs to the opposite problem. It is true
that Appellants argued, at least minimally, in the trial court that it lacked personal
jurisdiction over them because no formal petition had ever been filed and they had never
been served with process.7 The trial court rejected this argument, citing the Settlement
Agreement in which Appellants agreed to sell the subject property should it become
necessary and the agreed order entered into by the parties.8 In the body of their brief,
Appellants again raise the issue of personal jurisdiction, arguing that they never agreed to
subject themselves to the jurisdiction of the trial court and that they therefore never waived
their objection to personal jurisdiction. The Conservator argues that Appellants’ personal
jurisdiction argument substantively lacks merit, as Appellants consented to the jurisdiction
of the court on several occasions, including by entering into a consent order that
specifically addressed certain obligations under the Settlement Agreement. We conclude,
however, that it is not necessary to address the issue of personal jurisdiction as this issue
was not designated as an issue on appeal.
Rule 27 of the Tennessee Rules of Appellate Procedure specifically provides that
appellants’ briefs to this Court “shall contain . . . [a] statement of the issues presented for
review.” Tenn. R. App. P. 27(a)(4). Subject to some exceptions not present here, “[r]eview
generally will extend only to those issues presented for review.” Tenn. R. App. P. 13(b). It
is therefore well-settled that an issue is generally waived when it is argued in the body of
the brief, but not designated as an issue on appeal. See, e.g., State v. Freeman, 402 S.W.3d
7Again, the first time that Appellants ever cited legal support of any kind for their argument was
in their post-trial motion.
8
We note that the Settlement Agreement entered into between the Conservator and Appellants
specifically states that no formal partition suit will be necessary to enforce the provision allowing the sale
of the Fox Knob Lane property to pay the Ward’s expenses. Neither party mentions this provision in their
appellate briefs.
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643, 653 (Tenn. Ct. App. Oct. 16, 2012) (“Generally, an issue argued in the body of the
brief, but not designated as an issue will be considered waived”); Bunch v. Bunch, 281
S.W.3d 406, 410 (Tenn. Ct. App. 2008); Childress v. Union Realty Co., 97 S.W.3d 573,
578 (Tenn. Ct. App. 2002).
The Tennessee Supreme Court has opined on the specificity required of the
designated issues:
[A] properly framed issue may be the most important part of an
appellate brief. Antonin Scalia & Bryan A. Garner, Making Your Case: The
Art of Persuading Judges 83 (2008); David E. Sorkin, Make Issue Statements
Work for You, 83 Ill. B.J. 39, 39 (Jan. 1995).
Rather than searching for hidden questions, appellate courts prefer to
know immediately what questions they are supposed to answer. Bryan A.
Garner, Garner on Language and Writing 115 (2009); Robert L. Stern,
Appellate Practice in the United States § 10.9, at 263 (2d ed.1989).
Accordingly, “[a]n effectively crafted issue statement will define the
question to be considered and begin disposing the court to decide in the
client’s favor.” Judith D. Fischer, Got Issues? An Empirical Study About
Framing Them, 6 J. Ass’n Legal Writing Directors 1, 25 (2009); see also
State v. Williams, 914 S.W.2d 940, 948 (Tenn. Crim. App. 1995) (stating
that “[e]ach issue should . . . relate the conclusion that the party wants the
appellate court to reach”); Karl N. Llewellyn, A Lecture on Appellate
Advocacy, 29 U. Chi. L. Rev. 627, 630 (1962) (stating that “the first thing
that comes up is the issue and the first art is the framing of the issue so that
if your framing is accepted the case comes out your way”).
Appellate review is generally limited to the issues that have been
presented for review. Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d
349, 353 (Tenn. 2007). Accordingly, the Advisory Commission on the Rules
of Practice and Procedure has emphasized that briefs should “be oriented
toward a statement of the issues presented in a case and the arguments in
support thereof.” Tenn. R. App. P. 27, advisory comm’n cmt. . . . The issues
should be framed as specifically as the nature of the error will permit in order
to avoid any potential risk of waiver. Fahey v. Eldridge, 46 S.W.3d 138, 143-
44 (Tenn. 2001); State v. Williams, 914 S.W.2d at 948.
Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012). Thus,
“Parties should refrain from incorporating several separate and distinct errors
into a single issue.” Williams, 914 S.W.2d at 948–49 (finding an issue
waived because it was “too broad in scope” and “vague and conclusory in
nature”). Instead, “[a] separate issue should be presented for each error raised
in the appellate court.” Id. at 948 (citing Leeson v. Chernau, 734 S.W.2d
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634, 637 (Tenn. Ct. App. 1987)). The Rules of Appellate Procedure “‘do[ ]
not contemplate that an appellant may submit one blanket issue as to the
correctness of the judgment and thereby open the door to argument upon
various issues which might affect the correctness of the judgment.’” Id. at
948 n.5 (quoting Leeson, 734 S.W.2d at 637).
Cartwright v. Jackson Capital Partners, Ltd. P’ship, 478 S.W.3d 596, 614 (Tenn. Ct. App.
2015).
As previously noted, Appellants raised three issues in this case. None of Appellants’
issues speak of personal jurisdiction in any manner. Instead, Appellants’ first two issues
speak of whether Appellants’ due process rights were violated, while Appellants’ third
issue concerns itself with recusal. Thus, nothing in any of the issues raised by Appellants’
gives this Court any indication that personal jurisdiction was at issue in this appeal.
While undeniably related, the concepts of due process and personal jurisdiction are
distinct. Cf. Robert E. Pfeffer, A 21st Century Approach to Personal Jurisdiction, 13
U.N.H.L. Rev. 65, 145 (2015) (“[T]he two concept
personal jurisdiction and due process—involve two separate concerns, rather than being
separate flavors of the same concept[.]”). For example, actual notice may be sufficient to
meet minimum due process requirements depending on the circumstances, but it is not
sufficient to create personal jurisdiction in the absence of service of process. Compare
Turner v. Turner, 473 S.W.3d 257, 271 (Tenn. 2015) (“A court
obtains personal jurisdiction over a party defendant by service of process. The record must
establish that the plaintiff complied with the requisite procedural rules, and the fact that the
defendant had actual knowledge of attempted service does not render the service effectual
if the plaintiff did not serve process in accordance with the rules.”), with State v. Verner,
No. M2014-02339-CCA-R3-CD, 2016 WL 3192819, at *8 (Tenn. Crim. App. May 31,
2016) (“We conclude that the defendant had actual notice that the trial court would be
considering the particular term involved in the violation and that
this notice was sufficient to comport with due process.”); Warmath v. Payne, 3 S.W.3d
487, 492 (Tenn. Ct. App. 1999) (holding that due process is satisfied when a property
owner receives “actual notice” of the proceeding that affects his interest in property). Thus,
Appellants’ reference to due process in their statement of the issues does not provide proper
notice that personal jurisdiction—and in particular Appellants’ arguments concerning the
filing of a formal petition and service of process thereon—are also at issue in this appeal.
Like due process, the law is also clear that issues of personal jurisdiction are among
the types of issues that may be waived. See, e.g., Landers v. Jones, 872 S.W.2d 674, 675
(Tenn. 1994) (“[A] a court’s lack of personal jurisdiction may be waived by a
defendant[.]”). Indeed, this Court has stated that a waiver may occur even after the issue
was raised in the trial court. See Woodruff v. Anastasia Int’l, Inc., No. E2007-00874-
COA-R3-CV, 2007 WL 4439677, at *3 (Tenn. Ct. App. Dec. 19, 2007) (holding that “even
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after raising certain defenses, a party still may be found to have waived those defenses
under certain instances”); see also Hatfield v. Allenbrooke Nursing & Rehab. Ctr., LLC,
No. W2017-00957-COA-R3-CV, 2018 WL 3740565, at *7 (Tenn. Ct. App. Aug. 6, 2018)
(quoting Brokerwood Prods. Int’l, Inc. v. Cuisine Crotone, Inc., 104 Fed. App’x 376,
379–80 (5th Cir. 2004)) (holding that lack of personal jurisdiction may be waived “by
failing to pursue the defense”)). We therefore discern no bar to applying the general rule
waiving arguments that are not properly designated as issues for review to questions of
personal jurisdiction. Consequently, we conclude that Appellants’ argument that the trial
court lacked personal jurisdiction over them is waived.
C.
Appellants raise a final issue: that the trial court judge should have recused himself
from hearing this case. Rule 10B of the Tennessee Supreme Court Rules provides specific
guidelines for how recusal issues are to be raised in the trial court. Pursuant to Rule 10B,
a litigant is entitled to seek disqualification of a trial judge by filing a motion that: (1) is
supported by an affidavit under oath or a declaration under penalty of perjury by personal
knowledge or by other appropriate materials; (2) states, with specificity, all factual and
legal grounds supporting disqualification of the judge; and (3) affirmatively states that it is
not being presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation. Tenn. Sup. Ct. R. 10B, § 1.01.
Upon filing of such motion, “the judge whose recusal is sought shall either grant or
deny the motion in writing.” Watson v. City of Jackson, 448 S.W.3d 919, 927 (Tenn. Ct.
App. 2014). If the motion is denied, the judge shall state in writing the grounds for the
denial. Tenn. Sup. Ct. R. 10B, § 1.03. Additionally, if the motion is denied, the movant
may file an accelerated interlocutory appeal of the denial. Tenn. Sup. Ct. R. 10B, § 2.02.
Here, Appellants assert in their brief that the trial judge erred in hearing this case
when he had previously recused from the separate case between the Conservator and
Appellants. Appellants assert that while the order of recusal “did not specifically state the
[j]udge’s basis for his recusal, the implication, nonetheless, was that at the very least his
impartiality could be called into to question.” Although there are a number of issues with
Appellants’ argument,9 the issue that is fatal to this appeal is that Appellants did not file
any motion in the trial court for recusal of the trial judge.
As discussed above, Rule 10B requires that the party seeking recusal of the judge
9
Other issues include the recusal order from the separate case that Appellants rely upon in this
appeal being absent from the record and Appellants’ reliance on nothing more than assumptions and
innuendo that the conflict that required recusal in the separate case was also present in this case. See
generally Garner v. Garner, No. W2016-01213-COA-T10B-CV, 2016 WL 4249479, at *4 (Tenn. Ct. App.
Aug. 10, 2016) (“A claim of bias or prejudice must be based on facts, not speculation or innuendo.”).
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“shall” file a written motion, which “shall be supported by an affidavit under oath or a
declaration under penalty of perjury on personal knowledge[.]” Tenn. Sup. Ct. R. 10B, §
1.01. This Court has held that “it is imperative that litigants file their petitions
for recusal appeal in compliance with the mandatory requirements of Rule 10B in the first
instance[.]” Elliott v. Elliott, No. E2012-02448-COA-10B-CV, 2012 WL 5990268, at *3
(Tenn. Ct. App. Nov. 30, 2012). Rule 10B therefore “makes the affidavit in support of the
motion for recusal mandatory.” Smith v. Smith, No. E2017-01295-COA-R3-CV, 2019 WL
410702, at *3 (Tenn. Ct. App. Jan. 31, 2019) (alterations omitted) (citing Elliott, 2012 WL
5990268, at *4 (“The record provided by the appellant also does not include any affidavit
in support of the motion for recusal . . . , which Rule 10B makes mandatory.”)). In similar
circumstances where no recusal motion was filed in the trial court, we have often refused
to entertain a recusal argument on appeal. See, e.g., Smith, 2019 WL 410702, at *4; Lofton
v. Lofton, 345 S.W.3d 913, 917 (Tenn. Ct. App. 2008) (“Because Mr. Lofton did not file
a motion for recusal, we would usually hold that he has waived such right in conjunction
with the hearings before the trial court.”);10 Wright v. Pate, 117 S.W.3d 774, 777 (Tenn.
Ct. App. 2002) (“Because Appellant has filed no motion for recusal, we must hold that
Appellant has waived such right in conjunction with the January 30, 2002 hearing and
subsequent Order filed February 13, 2002.”). This rule is true even where the litigant
mentioned the issue of the trial court’s alleged bias in another pleading, but not in
compliance with Rule 10B. See Smith, 2019 WL 410702, at *3 n.3 (“Ms. Smith asserts
that this issue was presented in the trial court via her motion to alter or amend. Respectfully,
a single assertion that the trial court ‘demonstrate[ed] bias against the rule of law’ without
any accompanying request for recusal of the trial judge or proper motion to recuse
supported by an affidavit as required by Rule 10B is not sufficient to preserve this issue for
appellate review.”).
Here, Appellants did indicate in the trial court that the judge who presided over the
separate case should hear the case-at-bar in both their motion to dismiss and their pre-trial
brief. Neither of these filings, however, in any way asserted that there was an impermissible
bias or an appearance of impropriety. While these filings noted the trial judge’s prior
recusal in the separate matter, neither actually requested that the judge recuse himself from
this particular case; the most that these motions asked for was for the matter to be
transferred to the other judge. Thus, the filings in this case implicate recusal even less than
those held insufficient in Smith. 2019 WL 410702, at *3 n.3.
But even assuming, arguendo, that these filings were enough to raise the issue of
recusal, Appellant never filed any affidavit in the trial court in support of any ostensible
10
In Lofton, we held that recusal may still be warranted in such a case where the bias was
“egregious.” Id. at 917 (“[E]ven in the absence of a motion to recuse, if the apparent bias of a trial court is
sufficiently egregious, then it may, nonetheless, require sua sponte recusal or, at least, transfer to another
judge upon remand.”). No such allegations are at issue in this case and the record does not present evidence
of an egregious bias. Indeed, Appellants have failed to state any factual basis for the recusal other than
speculation that the prior recusal may possibly have implications for the case-at-bar.
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effort to recuse the trial judge. We have previously held that this failure can be fatal to a
recusal appeal. See Childress v. United Parcel Serv. Inc., No. W2016-00688-COA-T10B-
CV, 2016 WL 3226316, at *3 (Tenn. Ct. App. June 3, 2016) (declining to consider an
accelerated interlocutory recusal appeal where the written recusal motion was not
accompanied by the required affidavit); In re Am. Bonding Co., No. M2014-00249-CCA-
R3-CD, 2015 WL 832513, at *6 (Tenn. Crim. App. Feb. 26, 2015) (holding that the litigant
“waived consideration of the entire recusal issue based on his failure to follow the
procedural requirements of a motion to recuse” because the motion was not accompanied
by an affidavit). The lack of affidavit is particularly egregious in this case because there
was nothing in the technical record to support Appellants’ allegations of bias.11
In sum, Appellants filed no motion seeking recusal of the trial judge and to the extent
that such a request can even be read from Appellants’ filings, they did not comply with the
mandatory requirement that their motion be accompanied by an affidavit or declaration
under Rule 10B. As a result, Appellants have also waived the third issue they raised in this
appeal.
D.
Finally, the Conservator asks for an award of attorney’s fees under Tennessee Code
Annotated section 27-1-122, which provides as follows:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.
A frivolous appeal is one that is devoid of merit or has no reasonable chance of
success. Robinson v. Currey, 153 S.W.3d 32, 42 (Tenn. Ct. App. 2004). This issue was
properly designated as an issue and argued in the Conservator’s brief. Because Appellants
have waived every issue they presented in this appeal, we agree that this appeal was
frivolous. As a result, we grant the Conservator’s request and remand to the trial court for
the determination of the reasonable attorney’s fees that the Conservator incurred in
defending this appeal.
11
Indeed, even when the trial judge’s recusal was discussed in the hearing on the underlying
dispute, no proof was presented as to the basis of the trial judge’s prior recusal, which the trial judge frankly
admitted he had no memory of. Instead, there were only statements of counsel as to what the attorney’s
“personal perception” of the basis for the recusal was in that case. But statements of counsel are not
evidence. Hathaway v. Hathaway, 98 S.W.3d 675, 681 (Tenn. Ct. App. 2002). And while the prior recusal
was discussed at the hearing, it is important to note that no oral request for the trial judge to recuse from
this case was lodged during that hearing, to the extent that such an oral motion would even be sufficient to
raise this issue. See generally Tenn. Sup. Ct. R. 10B, § 1.01 (requiring a written motion).
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V. CONCLUSION
The judgment of the Putnam County Chancery Court is affirmed and this cause is
remanded for the determination of the Conservator’s reasonable attorney’s fees incurred in
defending against this appeal and for all further proceedings as are necessary and consistent
with this Opinion. Costs of this appeal are taxed to Appellants Grace and Harlen Dixon,
for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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