Derrick Hussey v. Michael Woods ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 11, 2015 Session
DERRICK HUSSEY, ET AL. v. MICHAEL WOODS, ET AL.
Appeal from the Circuit Court for Shelby County
No. CT00564209 Donna M. Fields, Judge
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No. W2014-01235-COA-R3-CV – Filed September 23, 2015
_________________________________
This is an appeal from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02
motion to set aside a settlement reached by Appellee, the decedent’s mother, in the
underlying wrongful death lawsuit. Appellant brought the Rule 60.02 motion on behalf of
her minor child, who was born out of wedlock. The decedent had executed a voluntary
acknowledgment of paternity of the minor child in Mississippi; Appellant argued that the
acknowledgment was entitled to full faith and credit in Tennessee such that the child would
be the rightful plaintiff in the wrongful death lawsuit. Appellee filed a challenge to paternity,
arguing that the decedent was incarcerated at the time of the child’s conception. The Circuit
Court stayed all proceedings and transferred the question of paternity to the Probate Court,
which had no authority to enroll the foreign acknowledgment of paternity under the Uniform
Enforcement of Foreign Judgments Act. Furthermore, because the child’s paternity was
challenged, there was a question as to whether the mere filing of the VAP in a Tennessee
Court, pursuant to Tennessee Code Annotated Section 24-7-113(b)(3), was sufficient to
establish paternity for purposes of the Wrongful Death Statute. If there is a challenge to the
VAP, Tennessee Code Annotated Section 24-7-113(e) requires the trial court to first find that
there is a substantial likelihood that fraud, duress, or material mistake of fact existed in the
execution of the VAP. If the court so finds, then, under Tennessee Code Annotated Section
24-7-113(e)(2), DNA testing is required to establish paternity. Alternatively, the trial court
could find that there is not a substantial likelihood of fraud, duress, or material mistake, deny
the challenge to the VAP, and enroll the VAP as conclusive proof of paternity. Here, the trial
court made no finding concerning fraud, duress, or material mistake under Section 24-7-
113(e). Despite the fact that the court never resolved the paternity question, it, nonetheless,
denied Appellant’s Rule 60.02 motion and granted attorney’s fees to the defendant in the
underlying wrongful death action and to the Appellee/mother for Appellant’s alleged
violation of the order staying all proceedings in the Circuit Court. We conclude that the Rule
60.02 motion was not ripe for adjudication until such time as the trial court conclusively
established the child’s paternity under either Tennessee Code Annotated Section 24-7-113 or
24-7-112. Accordingly, we vacate the trial court’s order denying Rule 60.02 relief and
remand the case for further proceedings, including, but not limited to, entry of an order that
complies with Section 24-7-113(e). We reverse the award of attorney’s fees and the order
staying proceedings in the Circuit Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
Vacated in Part; Reversed in Part; and Remanded.
KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and BRANDON O. GIBSON, J., joined.
Rachel E. Putnam, and Austin T. Rainey, Memphis, Tennessee, for the appellant, Sharondra
E. Harris.
Van D. Turner, Jr., Memphis, Tennessee, for the appellee, Estate of Mae L. Chearis.
Kevin D. Bernstein, Betty Ann Milligan, and Bradford Jones Spicer, Memphis, Tennessee,
for the appellee, Family Dollar Stores of Tennessee, Inc.
Richard Glassman, Edwin E. Wallis, III, and William C. Terrell, II, Memphis, Tennessee, for
the appellees, Porter & Strange, PLLC, Amanda K. Strange, and Matthew V. Porter.
JoeDae L. Jenkins, Memphis, Tennessee, Pro Se.
OPINION
I. Background
On April 28, 2005, Appellant Sharonda E. Harris gave birth to Darrius C. Harris.
Darrius was born out of wedlock; however, on March 12, 2008, Derrick Hussey
(“Decedent”) executed a “Stipulated Agreement of Support and [Voluntary] Admission of
Paternity” (“VAP”) in the Chancery Court of Desoto County, Mississippi. Therein, Mr.
Hussey acknowledged that he was Darrius’ natural father, and the Mississippi court entered
an order for child support.
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On December 4, 2008, Mr. Hussey died intestate after he was allegedly detained and
questioned by Michel Woods, an employee of Appellee Family Dollar Stores of Tennessee,
Inc., d/b/a Family Dollar Store (“Family Dollar”).1 On December 3, 2009, Decedent’s
mother, Mae L. Chearis, as Decedent’s next of kin, filed a wrongful death action on behalf of
the Decedent against Mr. Woods and Family Dollar. Appellees Amanda K. Strange,
Matthew V. Porter, and the law firm of Porter & Strange represented Ms. Chearis in the
lawsuit. Family Dollar and Ms. Chearis ultimately settled the wrongful death action, and the
trial court entered a consent order of dismissal with prejudice on March 31, 2010.
On December 2, 2011, some twenty months after the entry of the March 31, 2010
order of dismissal, Ms. Harris, as the natural parent and guardian of Darrius Harris, filed a
motion to set aside the consent order of dismissal and to substitute Darrius as the proper
plaintiff in the wrongful death lawsuit. In her motion, Ms. Harris alleged, inter alia, that
“pursuant to the Tennessee Wrongful Death Statute, [Darrius,] the minor child of Decedent
would stand as the lawful beneficiary in priority over the natural mother of the Decedent,
Mae L. Chearis . . . .” Ms. Harris’ motion states that “because the original action was
commenced by the improper beneficiary in terms of priority under the Tennessee Wrongful
Death Statute, namely, the Decedent’s natural mother rather than his natural child,” the trial
court “should set aside the Consent Order of Dismissal pursuant to Rule 60 of the Tennessee
Rules of Civil Procedure.” In addition to Tennessee Rule of Civil Procedure 60, Ms. Harris
also argued that Tennessee Rule of Civil Procedure 15.03 should allow Darrius to be
substituted as the proper party plaintiff in the wrongful death action. In support of her
motion, Ms. Harris attached the VAP that Mr. Hussey had allegedly executed in the Desoto
County court.
On January 3, 2012, the trial court entered an order enjoining Ms. Chearis from
“spending, concealing, or in any way disposing of remaining settlement proceeds.” On
January 4, 2012, Family Dollar filed its response in opposition to Ms. Harris’ motion to set
aside the consent order of dismissal, wherein it argued, inter alia, that Rule 60 was
inapplicable, that Ms. Harris’ motion was not timely filed, and that substitution of the minor
child would prejudice Family Dollar.
On January 13, 2012, Ms. Harris filed a copy of the Mississippi VAP in the Circuit
Court. In addition to the VAP, Ms. Harris also filed two orders, both entered on April 2,
1
The particular facts surrounding the Decedent’s death are not relevant to the instant appeal.
Furthermore, the settlement of the underlying wrongful death action was subject to a confidentiality
provision, whereby Ms. Harris agreed “not to disclose the details of this Release and Settlement . . .
including the nature or amount paid and the reasons for the payment . . . .” For these reasons, we
will not discuss the specific facts that led to Mr. Hussey’s death.
3
2008 in the Desoto County Chancery Court. The first order approved the VAP. The second
order established the amount of child support; the order on child support was later amended
by the Desoto County court’s order of July 22, 2008.
On February 21, 2012, Ms. Chearis filed her response in opposition to the motion to
set aside the consent order of dismissal. Therein, Ms. Chearis argued that Ms. Harris’ motion
was not only untimely, but that it should also be denied because Ms. Harris, while fully aware
of the one year statute of limitations on the wrongful death action, took no steps to file the
lawsuit on behalf of the minor child. Ms. Chearis also averred that “it was biologically
impossible for the [D]ecendent, Derrick Hussey, to be the father of the minor child as he was
incarcerated at the time he would have been able to conceive the child with Harris based on
the date of birth of the minor child.” In support of her response, Ms. Chearis filed her
affidavit, wherein she stated that she and Ms. Harris had initially consulted Attorney Robert
Brannon concerning the possibility of filing a wrongful death action. According to Ms.
Chearis’ affidavit, during the course of the consultation, the question of Darrius’ paternity
arose, and Ms. Harris refused to submit to DNA testing. Ms. Chearis further stated that, after
the question of paternity arose, Ms. Harris cut off all communication. Mr. Brannon
ultimately declined to represent either Darrius or Ms. Chearis in the wrongful death action,
and Ms. Chearis retained Porter & Strange to file the lawsuit. In her affidavit, Ms. Chearis
stated that, “[w]hen consulting with Porter & Strange, [she] expressed [her] doubts about
Derrick’s child because [Derrick] was incarcerated at the time the child would have been
[conceived].”
On April 18, 2012, Ms. Chearis filed a motion for an order requiring DNA testing. On
June 15, 2012, Ms. Harris filed a response in opposition to Ms. Chearis’ motion for DNA
testing. Therein, Ms. Harris stated that the VAP “is entitled to be given full faith and credit”
in Tennessee. On August 9, 2012, Ms. Harris filed a request for a status conference.
Therein, she argued that because Decedent’s estate had been opened in the Shelby County
Probate Court, the Probate Court was the proper court to decide the issues that were raised in
the trial court. On September 25, 2012, the trial court entered an order denying Ms. Harris’
motion for status conference and staying further proceedings in the Circuit Court pending
further orders of the Probate Court. This order provides, in relevant part, as follows:
[T]he Probate Court of Shelby County has original and exclusive jurisdiction
of all matters regarding the determination and priority of heirs in an intestate
estate. Accordingly, this matter shall be transferred to the Probate Court of
Shelby County for the appointment of an administrator of the Estate and for
determination and priority of heirs in the intestate estate of Derrick Hussey,
and all matters in this Court are stayed pending final order from the Probate
Court. Further, this Court’s position is that the parties should agree to DNA
4
testing as it is the Court’s opinion that a DNA test would conclusively settle
and determine the rightful heirs and the priority of heirs in the estate of Derrick
Hussey. Furthermore, the Court notes that while [Ms. Chearis] has agreed to a
DNA test and rendered a sample of her DNA for testing, Sharonda E. Harris
has refused testing.
Ms. Chearis died intestate on September 5, 2012. On December 19, 2012, Ms. Harris
filed a suggestion of death and a motion for revivor and substitution of parties in the Circuit
Court. Therein, Ms. Harris requested that the trial court substitute Appellee JoDae Jenkins,
in his capacity as Administrator of the Estate of Mae L. Chearis (the “Estate of Mae L.
Chearis”), in Ms. Chearis’ place. On January 25, 2013, the trial court entered a consent order
of revivor and substitution of parties.
Prior to filing her motion for revivor and substitution of parties, on or about December
20, 2012, Ms. Harris’ lawyer filed a subpoena for Ms. Chearis’ bank records, from November
1, 2009 to present. Allegedly, this subpoena was filed in an effort to determine where the
proceeds from the wrongful death settlement had gone. In response to the subpoena, on
December 26, 2012 and December 28, 2012, the Estate of Mae L. Chearis and Family Dollar,
respectively, filed motions to quash the subpoena, citing the trial court’s September 25, 2012
order staying further proceedings in the Circuit Court. On January 2, 2013, the trial court
held a conference by telephone. During this hearing, Ms. Harris’ lawyer indicated that she
would withdraw the subpoena. On January 18, 2013, Family Dollar filed a motion for
attorney’s fees, wherein it sought to recoup the fees it had expended in filing and arguing the
motion to quash the subpoena. Likewise, on January 28, 2013, the lawyer for the Estate of
Mae L. Chearis filed a motion to recover attorney’s fees related to the bank subpoena. Ms.
Harris opposed both motions for attorney’s fees.
On July 25, 2013, Ms. Harris filed a notice of the filing of the transcript of the March
27, 2013 proceedings in the Shelby County Probate Court. In relevant part, the transcript
indicates that the Probate Court opened Mr. Hussey’s estate on October 24, 2012 and ordered
DNA testing to determine Darrius’ paternity. On November 15, 2012, Ms. Harris filed a
motion to reconsider DNA testing, in which she argued that the Probate Court should
determine paternity based on the Desoto County VAP. On November 27, 2012, the Probate
Court entered an order for DNA testing, requiring Ms. Harris and Darrius to provide DNA
samples. However, this order was stayed pending resolution of Ms. Harris’ motion to
reconsider.
In ruling on Ms. Harris’ motion to reconsider, which the Probate Court determined
was, in fact, a motion to alter or amend the November 27, 2012 order requiring DNA testing,
the Probate Court stated that “the issue of parentage is before the Court. . . . The issue before
5
the Court is in what manner should parentage be established by this Court in this case so as to
determine the priority of heirs.” In the Probate Court hearing, Ms. Harris argued that
paternity was established by the prior adjudication in the Mississippi court and that the order
of the Mississippi court should be given full faith and credit. The Probate Court ultimately
determined that it had authority to enroll a properly authenticated judgment of the Mississippi
court but concluded that the documents filed in the Probate Court purporting to be
authenticated copies of the Mississippi ruling were not authenticated because the documents
“did not contain a page with the order provisions and the signature of the judge, the
attorneys, and the parties.” Therefore, the Probate Court reserved ruling “until a complete
copy of the Mississippi Court order certified by the Act of Congress” was filed.
On April 5, 2013, Ms. Harris filed the complete and authenticated Desoto County
documents. Thereafter, by order of October 1, 2013, the Probate Court granted Ms. Harris’
motion to alter or amend the previous order requiring DNA testing. The October 1, 2013
Probate Court order also enrolled the Mississippi adjudication of paternity and gave full faith
and credit to that judgment. The Probate Court entered a second order on December 19,
2013; the order states, in relevant part, that “IT IS, THEREFORE, ORDERED, ADJUDGED
AND DECREED, that Darrius Harris, is hereby determined to be the only living child of the
decedent, Derrick Hussey, is the sole beneficiary of the estate of Derrick Hussey pursuant to
T.C.A. §31-2-104, and has priority before all other heirs.” Ms. Harris filed this order in the
Circuit Court. By order of November 14, 2014, this Court held that the December 19, 2013
Probate Court order would be part of the record on appeal; however, we noted in our order
that the trial court did not consider this order in ruling on Ms. Harris’ motion to set aside.
After the Circuit Court granted Ms. Harris’ motion for revivor, on April 22, 2014,
Porter & Strange, Amanda Strange, and Matthew Porter filed a motion to intervene in the
Circuit Court proceedings. The motion was granted by order of May 27, 2014. On May 2,
2014, the Circuit Court heard the pending motions, i.e., Ms. Harris’ motion to set aside the
consent judgment and the two motions for attorney’s fees. On May 30, 2014, the Circuit
Court entered three orders. The first order denied Ms. Harris’ motion to set aside the consent
order of dismissal of the wrongful death lawsuit filed by Ms. Chearis and/or to substitute the
minor child as a party thereto. The second order granted Ms. Chearis’ estate $1,400.00 in
attorney’s fees. The third order granted Family Dollar’s motion for attorney’s fees in the
amount of $712.50. Ms. Harris filed a timely notice of appeal. Specifically, she appeals the
three May 30, 2014 orders and the September 25, 2012 order denying Ms. Harris’ motion for
status conference and staying further proceedings in the Circuit Court pending further orders
of the Probate Court.
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II. Issues
Ms. Harris raises four issues for review as stated in her brief:
1. Did the trial court err in denying minor child’s motion to set aside in light
of the Probate Court’s order establishing the minor child as the sole heir of
Decedent?
2. Did the trial court err in awarding [Family Dollar and the Estate of Mae L.
Chearis’] attorney fees?
3. Did the trial court err in granting Porter & Strange’s Motion to Intervene?
4. Should this Honorable Court award Minor Child appellate attorney’s fees
and costs.
Appellee Family Dollar also asks for its appellate attorney’s fees and costs.
Concerning Issue 3, i.e., whether the trial court erred in allowing Porter & Strange to
intervene, on August 11, 2015, this Court entered a stipulation of dismissal as to intervenors-
appellees Amanda Strange, Matthew Porter and Porter & Strange, PLLC. With the entry of
this order, the third issue was rendered moot. We now turn to address the remaining issues.
III. Standard of Review
Tennessee Rule of Civil Procedure 60.02 states, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or the
party's legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)
fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (3) the judgment is
void; (4) the judgment has been satisfied, released or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it
is no longer equitable that a judgment should have prospective application; or
(5) any other reason justifying relief from the operation of the judgment. The
motion shall be made within a reasonable time, and for reasons (1) and (2) not
more than one year after the judgment, order or proceeding was entered or
taken.
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Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co.,
834 S.W.2d 289, 294 (Tenn. 1992). The function of the rule is to “strike a proper balance
between the competing principles of finality and justice.” Banks v. Dement Constr. Co.,
Inc., 817 S.W.2d 16, 18 (Tenn.1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275, 280
(Tenn.1976)). “Rule 60.02 is meant to be used only in those few cases that meet one or more
of the criteria stated.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn.1991).
We review a trial court's decision to grant or deny relief pursuant to Rule 60.02 under
the abuse of discretion standard of review. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.
2003). Under this standard, a trial court's ruling “will be upheld so long as reasonable minds
can disagree as to propriety of the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001). A trial court abuses its discretion only when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice
to the party complaining.” Id. (internal citations omitted). Under the abuse of discretion
standard, the appellate court may not substitute its judgment for that of the trial court. Id.
(internal citations omitted). Furthermore, our Supreme Court emphasizes that great
deference is given to the trial court when reviewing its decision to grant or deny relief
pursuant to Rule 60.02. Henry, 104 S.W.3d at 479.
To the extent that our analysis requires statutory construction, our review is de novo,
with no presumption of correctness. State v. Wilson, 132 S.W.3d 340, 341 (Tenn.2004)
(“Statutory interpretation is a question of law, which we review de novo, with no
presumption of correctness.”). Our principles of statutory interpretation are well established.
When reading “statutory language that is clear and unambiguous, we must apply its plain
meaning in its normal and accepted use, without a forced interpretation that would limit or
expand the statute's application.” Eastman Chemical Co. v. Johnson, 151 S.W.3d 503, 507
(Tenn. 2004). “[W]e presume that every word in a statute has meaning and purpose and
should be given full effect if the obvious intention of the General Assembly is not violated by
doing so.” Lind v. Beaman Dodge, 356 S.W.3d 889, 895 (Tenn. 2011). “When a statute is
clear, we apply the plain meaning without complicating the task.” Id. “Our obligation is
simply to enforce the written language.” Id.
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IV. Analysis
A. Motion to Set Aside the Consent Order
Dismissing the Wrongful Death Lawsuit
Ms. Harris’ motion to set aside the consent order of dismissal of the wrongful death
action does not specifically indicate on which of the Rule 60.02 reasons she is relying.
However, given the fact that Ms. Harris waited longer than one year (i.e., from March 31,
2010, when the consent order was entered, until December 2, 2011) to file her Rule 60.02
motion, we infer that she is either relying on subsection (3), i.e., “the judgment is void,” or
subsection (5), i.e., “any other reason justifying relief . . . .,” both of which require filing
“within a reasonable time,” as opposed the more stringent one year time limit for reasons
60.02(1) and (2).
In relevant part, the motion to set aside states that the wrongful death action was
“commenced by the improper beneficiary in terms of priority under the Tennessee Wrongful
Death Statute.” We note at the outset that the Tennessee Wrongful Death Statute contains no
provision concerning the “beneficiary” of the proceeds of a wrongful death action. See In re
Estate of Dobbins, 987 S.W.2d 30 (Tenn. Ct. App. 1998) (“There is no language in the
Tennessee wrongful death statute that permits this Court to enter into considerations as to the
worthiness or lack of worthiness of beneficiaries of proceeds from wrongful death
lawsuits.”). Accordingly, we perceive the gravamen of Ms. Harris’ motion to be that Darrius,
as the alleged natural child of the Decedent, had priority over Ms. Chearis to file the
wrongful death action. In other words, this appeal does not involve the question of who
should inherit the proceeds of the wrongful death action. Rather, the instant appeal concerns
only whether the right to bring the wrongful death action vested in Ms. Chearis or Darrius. If
in Ms. Chearis, the trial court did not err in denying the motion to set aside.
The Tennessee Wrongful Death Statute, Tennessee Code Annotated Section 20-5-107
provides, in pertinent part:
(a) The [wrongful death] action may be instituted by the personal
representative of the deceased or by the surviving spouse in the surviving
spouse’s own name, or, if there is no surviving spouse, by the children of the
deceased or by the next of kin. . . .
In Tennessee, “[t]here can be but one cause of action for the wrongful death of another.”
Kline v. Eyrich, et al., 69 S.W.3d 197, 207 (Tenn. 2002) (citing Matthews v. Mitchell, 705
S.W.2d 657, 660 (Tenn. Ct. App. 1985)). “Because multiple actions may not be brought to
resolve a single wrongful death claim, the statutes carefully prescribe the priority of those
9
who may assert the action on behalf of the decedent and any other beneficiaries.” Id. As
discussed in more detail in 1 Lawrence A. Pivnick, Tennessee Circuit Court Practice §5:22
(2014):
A wrongful death action . . . must be brought in the name of statutorily
designated persons. T.C.A. §20-5-107 and T.C.A. § 20-5-110 [addressing
actions for the death of a spouse] read in pari materia with T.C.A. §20-5-
106[2] [involving legally incompetent beneficiaries] set out the priorities
among those persons entitled to bring the wrongful death action. . . .
Although the surviving spouse has first priority in filing a wrongful death action, here it is
undisputed that Decedent was not married at the time of his death. “If no spouse survives,
the children of the deceased person may bring an action for wrongful death.” Id. (citing
Tenn. Code Ann. §§ 20-5-106-107; Busby v. Massey, 686 S.W.2d 60 (Tenn. 1984); House v.
Gibson, 827 S.W.2d 310 (Tenn. Ct. App. 1991); Foster v. Jeffers, 813 S.W.2d 449, 451
(Tenn. Ct. App. 1991)); see also Williams v. Baxter, 536 F. Supp. 13, 17 (E.D. Tenn. 1981)
(interpreting Tennessee Code Annotated Section 20-5-106(a) and Tennessee Code Annotated
Section 20-5-107 to give decedent’s children the joint right to decedent’s wrongful death
action when decedent died without a surviving spouse). In the instant case, Darrius was born
out of wedlock. Although an illegitimate child may maintain a wrongful death action for the
death of his or her natural mother, Anderson v. Anderson, 366 S.W.2d 755 (Tenn. 1963), he
or she may not sue for the wrongful death of the putative father, despite the fact that the
father has acknowledged the child and contributed to his or her support. Dilworth v. Tisdale
Transfer & Storage Company, Inc., 354 S.W.2d 261 (Tenn. 1962). As stated by our
Supreme Court in Dilworth:
This Court has held the Wrongful Death Statute must be strictly
construed against the maintenance of any right of action not expressly
provided therein. Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243. Hogan v.
McDaniel, 204 Tenn. 235, 319 S.W.2d 221.
Counsel for plaintiff in error argues the fact this child having been
acknowledged by his putative father should affect this matter. In Tennessee
there are statutory methods by which an illegitimate child may be legitimated,
but there is no claim here any of these have been complied with by plaintiff in
error. The mere acknowledgment by the putative father, that he is the natural
father of the child would not change the legal status of the child.
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Id. at 262. There are, however, certain exceptions to this rule: “(a) the parents participated in
a marriage ceremony even though void; (b) before the father’s death, there had been a
successful paternity suit; or (c) after the father’s death, paternity has been proven by clear and
convincing evidence.” 1 Lawrence A. Pivnick, Tennessee Circuit Court Practice §5:22
(2014) (citing Tenn. Code Ann. § 31-2-105(a)(2); Sneed v. Henderson, 366 S.W.2d 758
(Tenn. 1963); Dilworth, 354 S.W.2d 261 (Tenn. 1962); Dotson v. Daniel Intern. Corp., 514
F. Supp. 109 (E.D. Tenn. 1981) (citations omitted)). Exceptions (a) and (b) are not
applicable in this case. Therefore, the question is whether Darrius’ paternity has been
established by clear and convincing evidence in this case.
As discussed above, in response to Ms. Harris’ motion to set aside the settlement of
the wrongful death action, on April 18, 2012, Ms. Chearis filed, in the Circuit Court, a
motion requesting DNA testing to determine Darrius’ paternity, along with her affidavit in
support thereof. Relying on Tennessee Code Annotated Section 24-7-113, Ms. Harris
countered that paternity had previously been established in the Mississippi court. Tennessee
Code Annotated Section 24-7-113 provides, in relevant part:
(b)(1) A voluntary acknowledgment of paternity which is completed under the
provisions of § 68-3-203(g), § 68-3-302, or § 68-3-305(b), or under similar
provisions of another state or government, when certified by the state registrar
or other governmental entity maintaining the record of the acknowledgment, or
the copy of the voluntary acknowledgment completed pursuant to § 68-3-
302(e), shall be a basis for establishing a support order without requiring any
further proceedings to establish paternity.
(2) An acknowledgment of paternity executed as described in subdivision
(b)(1) shall be entitled to full faith and credit in any judicial or administrative
proceeding in this state.
(3) No judicial or administrative proceedings are required, nor shall any such
proceedings be permitted, to ratify an unchallenged acknowledgment of
paternity in order to create the conclusive status of the acknowledgment of
paternity.
Id.. By its plain language, Tennessee Code Annotated Section 24-7-113 contemplates
procedure akin to a default judgment when there is no contest to the validity of a VAP, i.e.,
“[n]o judicial. . . proceedings are required, nor. . . permitted, to ratify an unchallenged
acknowledgment.” Tenn. Code Ann. §24-7-113(b)(3). However, where there is a challenge
11
to the VAP, Tennessee Code Annotated Section 24-7-113(e) requires a showing of fraud,
duress, or material mistake in the execution of the VAP in order to negate the VAP as
conclusive on the question of paternity.2 Section 24-7-113(e) provides, in relevant part:
(e)(1) If the voluntary acknowledgment has not been rescinded pursuant to
subsection (c), the acknowledgment may only be challenged on the basis of
fraud, whether extrinsic or intrinsic, duress, or material mistake of fact.
(2) The challenger must institute the proceeding upon notice to the other
signatory. . . within five (5) years of the execution of the acknowledgment, and
if the court finds based upon the evidence presented at the hearing that there is
substantial likelihood that fraud, duress, or a material mistake of fact existed in
the execution of the acknowledgment of paternity, then, and only then, the
court shall order parentage tests. . . . Nothing herein shall preclude the
challenger from presenting any other form of evidence as a substitute for the
parentage tests if it is not possible to conduct such tests.
(3) The test results certified under oath by an authorized representative of an
accredited laboratory shall be filed with the court and shall be admissible on
the issue of paternity pursuant to § 24-7-112(b). If the acknowledged father is
found to be excluded by the tests, an action seeking support shall be dismissed
or the acknowledgment of paternity shall be rescinded, as appropriate. If the
test results show a statistical probability of ninety-five percent (95%) or
greater, a rebuttable presumption of paternity shall be established and the issue
of paternity shall be tried before the court without a jury. If the test results
show a probability of paternity of ninety-nine percent (99%) or greater, the
acknowledgment of paternity will become conclusive and no further action
shall be necessary to establish paternity unless a motion asserting the defenses
of § 24-7-112(b)(2)(C) is successfully brought.
Here, Ms. Chearis challenged the VAP and asked the court to order DNA testing. As
support for her motion, Ms. Chearis filed an affidavit, in which she alleged that Decedent
2
Tennessee Code Annotated Sections 24-7-113(c) and (d) describe those situations under
which the named father may rescind the VAP. Here, of course, Decedent did not rescind the VAP
prior to his death. Accordingly, the only means of challenging the VAP is through Tennessee Code
Annotated Section 24-7-113(e). This code section does not limit the parties who may lodge a
challenge to the VAP. Rather, it states broadly that “[t]he challenger” must institute the proceeding. .
. . “ Tenn. Code Ann. §24-7-113(e)(2). Accordingly, we cannot limit the statute to preclude Ms.
Chearis’ standing to file a challenge to the VAP.
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was incarcerated at the time the child was conceived. Ms. Harris provided no countervailing
evidence, nor did she specifically challenge Ms. Chearis’ assertion in the record. Because
Ms. Chearis lodged a challenge to the validity of the VAP, the trial court was required to
make some finding as to whether there was a “substantial likelihood that fraud, duress, or a
material mistake of fact existed in the execution of the acknowledgment of paternity.” Tenn.
Code Ann. §24-7-113(e)(2); Tenn. R. Civ. P. 52.01. If, after considering the evidence, the
court finds that there is a substantial likelihood of fraud, duress, or material mistake, then,
under Section 24-7-113(e)(2), the court should order DNA testing and follow the procedure
set out in Section 24-7-113(e)(3) depending on the results of that testing. If, however, the
court finds that there is not a substantial likelihood of fraud, duress, or material mistake, then,
it should dismiss the challenge to the VAP and give the VAP full faith and credit pursuant to
Section 24-7-113(b)(2).
Here, the Circuit Court did not comply with Tennessee Code Annotated Section 24-7-
113(e) in that it failed to make any findings concerning fraud, duress, or mistake in the
execution of the VAP. Although its September 25, 2012 order states that its “position is that
the parties should agree to DNA testing as it is the Court’s opinion that a DNA test would
conclusively settle and determine the rightful heirs and the priority of heirs . . .,” the Circuit
Court omitted the necessary step of first making a finding that there was a substantial
likelihood of fraud, duress, or mistake in order to warrant DNA testing under Tennessee
Code Annotated Section 24-7-113(e)(2). Instead, the Circuit Court stayed further
proceedings and transferred the question of paternity to the Probate Court, i.e., “this matter
shall be transferred to the Probate Court of Shelby County . . . for determination and priority
of heirs in the intestate estate of Derrick Hussey.”
First, we reiterate that the question before the Circuit Court was not one “priority of
heirs” or the proper beneficiaries of Decedent’s estate; rather, the sole question was whether
Darrius or Ms. Chearis had the right to bring the wrongful death lawsuit. This was a question
that should have been answered by the Circuit Court through the proper adjudication of
Darrius’ paternity under the procedures outlined in Tennessee Code Annotated Section 24-7-
113.
Because Ms. Chearis raised a challenge to the VAP in the Circuit Court, the Circuit
Court should not have stayed its proceedings but should have held a hearing on the question
of whether fraud, duress, or material mistake existed regarding the execution of the VAP.
Tenn. Code Ann. §24-7-113(e)(2). Based upon this hearing, the court should then have made
specific findings concerning the substantial likelihood of fraud, duress, or mistake. Id. That
being said, regardless of whether the Circuit Court should have transferred the question of
paternity, in light of the pending challenge to paternity, the Probate Court, like the Circuit
Court, could not rely on the mere filing of the VAP to establish paternity without first
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complying with the requirements of Tennessee Code Annotated Section 24-7-113(e). The
Probate Court, like the Circuit Court, did not make any findings concerning the substantial
likelihood of fraud, duress, or mistake. In fact, in enforcing the VAP, the Probate Court did
not rely on the VAP statute, Tennessee Code Annotated Section 24-7-113. Rather, the
Probate Court relied on the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) to
enroll the Mississippi VAP. The UEFJA, at Tennessee Code Annotated Sections 26-6-104,
provides, in relevant part, that:
(a) A copy of any foreign judgment authenticated in accordance with the acts
of congress or the statutes of this state may be filed in the office of the clerk of
any circuit or chancery court of this state.
(b) The clerk shall treat the foreign judgment in the same manner as a
judgment of a court of record of this state.
(c) A judgment so filed has the same effect and is subject to the same
procedures, defenses and proceedings for reopening, vacating, or staying as a
judgment of a court of record of this state and may be enforced or satisfied in
like manner.
Id. (Emphasis added). We first reiterate the well-established rule of statutory construction
that we must assume that every word in the statute has meaning and purpose. Lind, 356
S.W.3d at 895. Furthermore, in analyzing legislative intent, we employ the canon of
construction expressio unius est exclusio alterius, “which holds that the expression of one
thing implies the exclusion of others....” Rich v. Tenn. Bd. of Medical Examiners, 350
S.W.3d 919, 927 (Tenn.2011). In Tennessee Code Annotated Section 26-6-104, the
Legislature specifically states that the circuit and chancery courts have authority to enroll a
foreign judgment. Under the canon of expressio unius est exclusio alterius, we must assume
the Legislature intended to exclude courts other than chancery and circuit from enrolling
foreign judgments. See Studsvik Logistics, LLC v. Royal Furniture Co., No. W2009-00925-
COA-R3-CV, 2010 WL 1565522 (Tenn. Ct. App. April 20, 2010) (holding that the general
sessions court lacked jurisdiction to enroll a Mississippi judgment pursuant to the Uniform
Enforcement of Foreign Judgment Act). The transcript of the March 27, 2013 proceedings
before the Probate Court indicates that the Probate Court was aware of the fact that
Tennessee Code Annotated Section 26-6-104 did not include the Probate Court when it stated
that, “[i]nterestingly, the Code does not list Probate Court as a forum in which to file a
foreign judgment, albeit, probate is a court of record.” Despite its acknowledgment of the
plain language of the statute, the Probate Court, nonetheless, enrolled the VAP. The Probate
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Court had no authority, under the UEFJA, to enroll the Mississippi VAP. Therefore, we
conclude that the Probate Court’s enrolling the VAP had no legal effect regarding Darrius’
paternity for purposes of the Tennessee Wrongful Death Statute.
Because the challenge to the VAP was raised in the Circuit Court, it was incumbent
upon the Circuit Court to comply with the mandates of Tennessee Code Annotated Section
24-7-113 and to establish paternity under the procedure set out in that statute. Transferring
the case to the Probate Court merely added a procedural wrinkle that not only complicated
the case, but also had no effect on the ultimate question of Darrius’ paternity. Accordingly,
we hold that the Circuit Court erred in its September 25, 2012 order both by staying its
proceedings and by transferring the paternity issue to the Probate Court. Accordingly, we
reverse the September 25, 2012 order in toto.
Here, Ms. Chearis filed the wrongful death lawsuit one day before the statute of
limitations expired. We note that the statutorily designated person bringing the wrongful
death action sues on behalf of all persons who are entitled to share in the recovery, see, e.g.,
Spicer v. Hilliard, 879 S.W.2d 858 (Tenn. Ct. App. 1994) (citing Tenn. Code Ann. §§20-5-
106(a) and 20-5-110(b)). Once the priority or right to assert the wrongful death claim is
established and the lawsuit is filed, the party with the statutory authority maintains “complete
control over the right of action until he or she waives that right.” Estate of Baker ex rel. v.
Maples, 995 S.W.2d 114, 115 (Tenn. Ct. App. 1999) (citations omitted). The questions of
whether the wrongful death settlement reached by Ms. Chearis should be set aside and
whether Darrius should be substituted as the proper plaintiff in that action were the subject of
the Rule 60.02 motion. However, in the absence of a determination of paternity under
Tennessee Code Annotated Section 24-7-113, the trial court could not properly determine
Darrius’ standing, if any, in the wrongful death action. Accordingly, whether Darrius had
standing to contest Ms. Chearis’ settlement of the wrongful death lawsuit was not ripe for
adjudication at the time the trial court ruled on the Rule 60.02 motion. For this reason, we
vacate the trial court’s order denying Rule 60.02 relief and remand the case for further
proceedings, including, but not limited to, compliance with the procedure outlined in
Tennessee Code Annotated Section 24-7-113 and specific findings pursuant to Tennessee
Rule of Civil Procedure 52.01. In the event that the trial court concludes that Darrius has
standing to contest Ms. Chearis’ settlement of the wrongful death lawsuit and proceeds to
consider the propriety of the Rule 60.02 motion, we also suggest that the trial court set forth
its reasons for granting or denying Rule 60.02 relief so as to facilitate possible future
appellate review.
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V. Attorney’s Fees
Tennessee follows the American Rule which provides that “litigants pay their own
attorney's fees absent a statute or an agreement providing otherwise.” State v. Brown &
Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn.2000); accord Taylor v. Fezell, 158
S.W.3d 352, 359 (Tenn.2005). “Under the American [R]ule, a party in a civil action may
recover attorney fees only if: (1) a contractual or statutory provision creates a right to recover
attorney fees; or (2) some other recognized exception to the American [R]ule applies,
allowing for recovery of such fees in a particular case.” Cracker Barrel Old Country Store,
Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn.2009) (citing Taylor, 158 S.W.3d at 359; John
Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn.1998)). “[A]s a general
principle, the American [R]ule reflects the idea that public policy is best served by litigants
bearing their own legal fees regardless of the outcome of the case.” House v. Estate of
Edmondson, 245 S.W.3d 372, 377 (Tenn. 2008). However, “[w]here attorney fees are
authorized by law, then the decision to award such fees is within the sound discretion of the
trial court, and will not be reversed on appeal, absent abuse of that discretion.” Martin v.
Moore, 109 S.W.3d 305, 313–14 (Tenn.Ct.App.2003) (citing Garfinkel v. Garfinkel, 945
S.W.2d 744 (Tenn.Ct.App.1996)). A trial court abuses its discretion only when it applies an
incorrect legal standard or when it reaches a decision against logic or reasoning that causes
an injustice to the complaining party. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
We note that the trial court’s May 30, 2014 orders granting attorney’s fees to the
Estate of Mae L. Chearis and Family Dollar contain no authority supporting the award of
attorney’s fees in this case. Rather, both orders state only that “the Plaintiff’s Motion for
Attorney Fees is well taken and the same should be and is hereby GRANTED.” Although the
trial court’s orders are insufficient in this regard, we glean from the motions for attorney’s
fees that the fees were awarded because Ms. Harris allegedly violated the stay of proceedings
set out in the Circuit Court’s September 25, 2012 order, supra. We previously held that the
trial court erred in staying its proceedings pending determination of paternity in the Probate
Court and in transferring that determination to the Probate Court, which had no authority to
enroll the VAP. Based upon our holding that the Circuit Court proceedings were improperly
stayed, and given the lack of any other reason or authority supporting the award of attorney’s
fees in this case, we reverse the May 30, 2014 orders granting attorney’s fees to Family
Dollar and the Estate of Mae L. Chearis.
Family Dollar and Ms. Harris also ask this Court to award their respective appellate
attorney’s fees. An award of appellate attorney’s fees is a matter within this Court’s sound
discretion. Moran v. Wilensky, 339 S.W.3d 651, 666 (Tenn.Ct.App.2010) (citing Archer v.
Archer, 907 S.W.2d 412, 419 (Tenn.Ct.App.1995)). “In considering a request for attorney’s
fees on appeal, we consider the requesting party’s ability to pay such fees, the requesting
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party’s success on appeal, whether the appeal was taken in good faith, and any other
equitable factors relevant in a given case.” Id. (citing Darvarmanesh v. Gharacholou, No.
M2004–00262–COA–R3–CV, 2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005)). In
the instant case, we exercise our discretion under the foregoing authority and decline both
requests for attorney’s fees.
V. Conclusion
For the foregoing reasons, we reverse the trial court’s September 25, 2012 order,
staying proceedings and transferring the question of paternity to the Probate Court. We also
reverse the trial court’s May 30, 2014 orders, granting attorney’s fees to Family Dollar and
the Estate of Mae L. Chearis. We vacate the trial court’s May 30, 2014 order, denying
Appellant’s Rule 60.02 motion to set aside the wrongful death settlement and to substitute
Darrius as the proper party to that lawsuit. The case is remanded to the Circuit Court for
such further proceedings as may be necessary and are consistent with this opinion, including,
but not limited to, compliance with the procedures outlined in Tennessee Code Annotated
Section 24-7-113 and proper findings as required by Tennessee Rule of Civil Procedure
52.01. Costs of the appeal are assessed one half to Appellant, Sharondra E. Harris and her
surety, one-quarter to Appellee, Family Dollar Stores of Tennessee, Inc, and one-quarter to
Appellee, Estate of Mae L. Chearis, for all of which execution may issue if necessary.
_______________________________
KENNY ARMSTRONG, JUDGE
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