Jackson v. Aldridge ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
July 14, 1999
JINNY MYRA JACKSON, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiff/Appellee, ) Montgomery Chancery
) No. 97-02-0022
VS. )
) Appeal No.
GARI SHELDON ALDRIDGE, ) 01A01-9809-CH-00488
)
Defendant/Appellant. )
APPEAL FROM THE CHANCERY COURT FOR MONTGOMERY COUNTY
AT CLARKSVILLE, TENNESSEE
THE HONORABLE CAROL CATALANO, JUDGE
For Plaintiff/Appellee: For Defendant/Appellant:
Markley Runyon Gill Gari Sheldon Aldridge
Runyon & Runyon Pro Se
Erin, Tennessee
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the annulment of a four-year marriage. After the wife
obtained the annulment judgment in the Chancery Court for Montgomery County, the
husband moved to set aside the judgment on the ground that he had not been properly
served. The trial court denied the motion, and the husband has appealed. We affirm
the judgment because the husband has failed to produce sufficient proof to overcome
the presumption that he was properly served.
I.
Jinny Myra Jackson and Gari Sheldon Aldridge were married on May 28, 1993.
In July of 1997, Ms. Jackson filed for an annulment on the ground that Mr. Aldridge
was already married when she and Mr. Aldridge wed. Mr. Aldridge was apparently
served with process through the Davidson County Sheriff’s Department.1 Mr.
Aldridge did not respond to Ms. Jackson's complaint, and so, on September 19, 1997,
the trial court granted a default judgment, annulling the marriage.
On October 14, 1997, Mr. Aldridge moved to set aside the default judgment
on the ground that he had not been served with process. He supported the motion
with his own affidavit denying that he had ever been served. On October 20, 1997,
the trial court entered a final decree of annulment finding that Mr. Aldridge was
already married to another woman when he married Ms. Jackson and that he had
induced Ms. Jackson to marry him through fraud and misrepresentation.
1
This appeal is before the court on the technical record alone because neither Mr. Aldridge
nor the lawyer who represented him in the trial court took the steps required by Tenn. R. App. P.
24(b) or 24(c) to prepare and file either a transcript or a statement of the evidence. The technical
record does not contain a copy of the process served on Mr. Aldridge because the trial court clerk
omitted it pursuant to Tenn. R. App. P. 24(a) when neither party requested that it be included in the
record. Mr. Aldridge has appended a transcript of the July 20, 1998 hearing in the trial court and a
copy of the summons to his brief. We cannot consider this factual information because it is not part
of the appellate record. See Tenn. R. App. P. 13(c). This court would have been better-served had
counsel for Ms. Jackson, upon learning that Mr. Aldridge was undertaking to represent himself,
taken timely steps to assure that the appellate record, in the words of Tenn. R. App. P. 24(a),
contained a “fair, accurate and complete account of what transpired with respect to those issues that
are the bases of the appeal.”
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Thereafter, in March 1998, Ms. Jackson moved for Tenn. R. Civ. P. 11
sanctions for Mr. Aldridge’s motion to set aside the order of annulment. The trial
court apparently conducted a hearing on these matters on July 20, 1998.2
Approximately one month later, on August 14, 1998, the trial court dismissed Mr.
Aldridge's motion to set aside the final decree of annulment. Mr. Aldridge now
appeals, claiming that the trial court erred by failing to set aside the decree of
annulment because he had not been properly served with process.
II.
Mr. Aldridge’s sole argument on appeal is that the trial court erred by
dismissing his motion to set aside the decree of annulment because he was not
properly served with process. He asserts that the presumptive validity of the officer’s
return on the summons is undermined because the officer who served the process did
not recognize him at trial and because he now has independent evidence that the
officer did not properly serve the process.
An officer's return is prima facie evidence of proper service of process, and the
oath of an interested party is legally insufficient to overcome the return. See Royal
Clothing Co. v. Holloway, 208 Tenn. 572, 574-75, 347 S.W.2d 491, 492 (1961);
Brake v. Kelly, 189 Tenn. 612, 620, 226 S.W.2d 1008, 1011 (1950); Cullum & Maxey
Camping Ctr., Inc. v. Adams, 640 S.W.2d 22, 24 (Tenn. Ct. App. 1982). This rule is
based upon a presumption that public officials perform their duties in the manner
prescribed by law. See Wartrace v. Wartrace & Beech Grove Turnpike Co., 42 Tenn.
(2 Cold.) 515, 519 (1865); Third Nat. Bank of Nashville v. Estes, 1986 WL 3155 at
*5 (Tenn. Ct. App. 1986).
Since we do not have a transcript of the July 20, 1998 hearing, the appellate
record does not support Mr. Aldridge’s assertion that the officer who served the
process did not recognize him at the hearing. Even if this assertion were supported
by the record, it does not undermine the validity of the officer’s return prepared
contemporaneously with the service of the summons and complaint. In light of the
2
The transcript of this hearing, although appended to Mr. Aldridge’s brief, has not been
properly included in the appellate record.
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number of persons an officer serves in a month’s time, it is not surprising that the
officer would fail to recognize a person he or she served with process twelve months
earlier.
Mr. Aldridge also relies on an affidavit prepared by Ilona Rivera as
independent proof that the officer did not properly serve him. Like the transcript of
the July 20, 1998 hearing, this affidavit was never properly made part of the record,
either at trial or on appeal. In fact, the copy appended to Mr. Aldridge’s brief shows
that it was executed approximately two weeks after the July 20, 1998 hearing and that
it was never filed with the trial court. Accordingly, this affidavit is not part of the
appellate record and can provide no assistance to Mr. Aldridge on this appeal.3
III.
Ms. Jackson contends that this court should award her damages because the
appeal is frivolous. Successful parties should not have to bear the cost and vexation
of baseless appeals. See Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.
1977); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989).
Accordingly, Tenn. Code Ann. § 27-1-122 (1980) empowers appellate courts to
award damages against parties whose appeals are frivolous, or brought solely for
delay. These damages may include, but are not limited to, costs and expenses
incurred by the appellee as a result of the appeal. See Wells v. Sentry Ins. Co., 834
S.W.2d 935, 938 (Tenn. 1992).
An appeal with no reasonable chance of success is frivolous. See Davis v. Gulf
Ins. Group, 546 S.W.2d at 586; Industrial Dev. Bd. of Tullahoma v. Hancock, 901
S.W.2d 382, 385 (Tenn. Ct. App. 1995). Failure to cite any evidence or rule of law
entitling the appealing party to relief is one indicator that the appeal may be frivolous.
See Wells v. Sentry Ins. Co., 834 S.W.2d at 938-39.
3
Even if we were to consider the substance of Ms. Rivera’s affidavit, it would avail Mr.
Aldridge very little. Ms. Rivera states that she worked with Mr. Aldridge and that “on or about July
9, 1997,” an “African American uniformed officer” came to their office to speak with Mr. Aldridge
and that he left her “several folded pieces of paper.” She states that she left the paper in Mr.
Aldridge’s mail and did not mention anything else to Mr. Aldridge until July 20, 1998. These
generalized, non-specific statements that do not identify the papers involved or even the precise date
are insufficient to rebut the officer’s return.
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Mr. Aldridge appeals pro se,4 and so we have allowed him considerable latitude
on citation to authority and on the form of his papers. Nevertheless, even if we
consider the clearly incompetent matters relied on by Mr. Aldridge, the appeal has no
substance and has no reasonable chance of success. Therefore, we conclude that this
appeal is frivolous and award Ms. Jackson damages to be determined by the trial
court on remand.
IV.
The order denying Mr. Aldridge’s motion to set aside the decree of annulment
is affirmed, and the case is remanded to the trial court for further proceedings,
including the calculation of Ms. Jackson’s damages for Mr. Aldridge’s frivolous
appeal. We tax the costs of this appeal to Mr. Aldridge and his surety for which
execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
________________________________
WILLIAM B. CAIN, JUDGE
4
Mr. Aldridge was represented by counsel in the trial court. There is nothing in the technical
record to suggest that the trial court has permitted counsel to withdraw.
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