Vanessa Colley v. John S. Colley, III ( 2022 )

11/17/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 18, 2022 Session
VANESSA COLLEY v. JOHN S. COLLEY, III
Appeal from the Circuit Court for Davidson County
No. 12D-314 Philip E. Smith, Judge
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No. M2021-00731-COA-R3-CV
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Appellant/Husband voluntarily nonsuited his post-divorce lawsuit involving issues of
alimony and the parties’ alleged settlement of an IRS debt. Appellee/Wife moved for an
award of her attorney’s fees on alternative grounds, i.e., the abusive lawsuit statute, Tenn.
Code Ann. § 29-41-106; the parties’ MDA; and Tennessee Code Annotated section 36-5-
103(c). The trial court granted Wife’s motion and entered judgment for her attorney’s fees
and costs. The trial court specifically held that Husband’s lawsuit was not abusive, and
Wife does not raise this as an issue on appeal. As such, we conclude that she is not entitled
to her attorney’s fees under the abusive lawsuit statute. As to her claim for attorney’s fees
and costs under the MDA and Tennessee Code Annotated section 36-5-103(c), both
grounds require that Wife be a “prevailing party” in the underlying lawsuit. Because
Husband took a voluntary nonsuit, neither party prevailed in the action, and Wife is not
entitled to her attorney’s fees and costs. Reversed and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Jennifer Honeycutt, Franklin, Tennessee, for the appellant, John Shackelford Colley, III.
Abby R. Rubenfeld, Nashville, Tennessee, for the appellee, Vanessa Young Colley
(Turner).
OPINION
I. Background
Appellant John Shackelford Colley, III (“Husband”) and Appellee Vanessa Young
Colley (“Wife”) were divorced on July 18, 2012. While the divorce action was pending,
on April 12, 2012, the trial court entered an order on the parties’ cross-motions to set
temporary support and a temporary residential schedule for the parties’ children. As is
relevant to the instant appeal, the April 12, 2012 order provided that: “With regard to Mr.
Colley’s motion for the installment agreement, Mrs. Colley shall not be required to sign
the installment agreement; however, because of her refusal to sign, Mrs. Colley shall be
responsible for all penalties and interest from this date forward if there is no wrongdoing
established by the IRS with regard to the 2010 tax return.”
The parties’ post-divorce litigation has been prolific and contentious, and this is the
second appeal to this Court. See Colley v. Colley, No. M2014-02495-COA-R3-CV, 2016
WL 3633376 (Tenn. Ct. App. June 28, 2016). As is relevant to the instant appeal, on
January 9, 2019, Husband filed a “Petition to Terminate Transitional Alimony, Modify
MDA and Enter Judgment for IRS Reimbursement.” By his petition, Husband sought relief
from his alimony obligation (based on Wife’s remarriage), relief from having Wife as the
beneficiary on his life insurance (to ensure alimony payment), entry of judgment against
Wife for $6,000 as reimbursement of interest and penalties on the parties’ 2010 IRS
obligation, and an “[a]ward [of] his attorney’s fees and discretionary costs should he
prevail.” To support his request for the $6,000 reimbursement, Husband relied on the April
12, 2012 order, supra. On March 6, 2019, Wife filed an amended answer to Husband’s
petition. Therein, she averred that Husband’s request to modify the MDA regarding the
IRS reimbursement was untimely, and the April 12, 2012 order did not include any
judgment against her for a sum certain owed to the IRS. However, Wife agreed that she
would execute an agreed order on the alimony issue.
On May 10, 2019, Husband filed a motion to enforce settlement. Therein, Husband
alleged that, based on several emails he attached to his motion, he and Wife had reached
an agreement for her to pay $5,000 in settlement of the IRS issue. On June 18, 2019, Wife
filed a response in opposition to Husband’s motion to enforce settlement, wherein she
alleged that there was no enforceable settlement between the parties. After an unsuccessful
mediation, the trial court held a hearing on Husband’s motion on July 26, 2019. By order
of November 26, 2019, the trial court held that there was no settlement agreement and
denied Husband’s motion. This order was not a final judgment, however, due to the fact
that the trial court reserved “all other matters” and ordered discovery to go forward. The
trial court’s reference to “all other matters” appears to involve Husband’s contention that
he overpaid alimony by two months because Wife allegedly was living with her fiancé two
months immediately preceding her remarriage.
The parties continued with discovery and, after several delays, on August 17, 2020,
the parties entered an agreed order, setting the remaining matters for hearing on November
18, 2020. On November 6, 2020, Husband filed a notice of nonsuit of “all causes of action
from the instant litigation.”
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On November 8, 2020, before the order of nonsuit was entered on November 13,
2020, Wife filed a “Motion for damages and/or sanctions for an abusive lawsuit, or in the
alternative to alter or amend order of dismissal.” Therein, Wife requested attorney’s fees
for Husband’s alleged “abusive lawsuit.” Tenn. Code Ann. § 29-41-103, et seq. Wife
noted that the order of nonsuit had not yet been entered and, as such, averred that her
motion was timely as it was brought “during the civil litigation.” Tenn. Code Ann. § 29-
41-103(a)(2) (“If a civil action is filed and the defendant to the action believes it to be an
abusive civil action, the claim may be raised by the defendant . . . (2) By motion made at
any time during the civil action.”). On November 30, 2020, Husband filed a response in
opposition to Wife’s motion, wherein he alleged that her claim of abusive lawsuit was
untimely because he had filed his notice of nonsuit prior to her bringing the motion. Based
on his assertion that his notice of nonsuit ended the lawsuit at that point, he claimed that
Wife could not make a claim for abusive lawsuit damages after his notice was entered.
Alternatively, Husband argued that, if Wife’s motion was considered a pending motion at
the time of his notice of nonsuit, the motion could not be considered after he took the
nonsuit. Husband asked for “his attorneys’ fees and costs under T.C.A. § 29-41-106(d),
should he prevail on this issue.”1
The trial court heard Wife’s motion on December 18, 2020. By order of January 7,
2021, the trial court specifically denied Wife’s motion for abusive lawsuit but granted her
motion to alter or amend the order of dismissal. The trial court further held that Wife could
file a motion for attorney’s fees, which would be decided in a separate hearing. On
February 2, 2021, Wife filed a motion for attorney’s fees. As grounds for attorney’s fees,
Wife relied on the parties’ MDA, which provided:
In the event it becomes reasonably necessary for either party to institute or
defend legal proceedings related to the enforcement of any provision of this
Agreement, the prevailing party shall also be entitled to a judgment for
reasonable expenses, including attorney’s fees, incurred in connection with
such proceedings.
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Tennessee Code Annotated § 29-41-106(d) provides:
If a civil action defendant alleges that a claim is an abusive civil action or that the plaintiff
is an abusive civil action plaintiff, and the court finds by a preponderance of the evidence
that the action was not an abusive civil action or that the plaintiff is not an abusive civil
action plaintiff, the court may:
(1) Tax all costs related to litigating the issue of whether the action is an abusive
civil action or whether the plaintiff is an abusive civil action plaintiff, against the civil
action defendant who made the claim; and
(2) Award the civil action plaintiff reasonable attorney fees and all reasonable costs
of defending the claim that the action was an abusive civil action or that the plaintiff was
an abusive civil action plaintiff.
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In the alternative, Wife claimed that she was entitled to attorney’s fees under
Tennessee Code Annotated section 36-5-103(c) (“A prevailing party may recover
reasonable attorney’s fees, which may be fixed and allowed in the court’s discretion, from
the non-prevailing party in any criminal or civil contempt action or other proceeding to
enforce, alter, change, or modify any decree of alimony. . . .”). On March 7, 2021, Husband
filed a response in opposition to Wife’s motion, wherein he asserted that Wife was not a
prevailing party and, thus, not entitled to attorney’s fees. Concurrent with his response,
Husband filed a cross-motion for attorney’s fees under Tennessee Code Annotated section
29-41-106(d) for abusive lawsuit.
The cross-motions for attorney’s fees were heard on March 26, 2021. By order of
May 11, 2021, the trial court denied Husband’s motion and granted Wife’s. Thereafter,
Wife’s attorney filed a fee affidavit. On June 2, 2021, the trial court entered an order
altering and amending its May 11, 2021 order to award Wife $16,500.00 in attorney’s fees.
Husband appeals.
II. Issues
Husband raises the following issues as stated in his brief:
1. Whether the email settlement agreement is enforceable.
2. Whether the court abused its discretion in reversing two earlier discovery
orders.
3. Whether Wife is entitled to her attorney’s fees after Husband nonsuited
his petition.
As noted above, Husband took a voluntary nonsuit in this case. As such, this Court
lacks subject matter jurisdiction to review issue one. In Martin v. Washmaster Auto
Center, Inc., this Court noted that
[n]o present controversy exists after the plaintiff takes a nonsuit. The lawsuit
is concluded and can only be resurrected if and when the plaintiff
recommences the action. The plaintiff’s refiling the suit is a contingent event
that may not occur.
Martin v. Washmaster Auto Center, Inc., No. 01-A-01-9305-CV00224, 1993 WL 241315,
* 2 (Tenn. Ct. App., Nashville, July 2, 1993).
In Hudson v. Grunloh, No. E2014-00585-COA-R3-CV, 2014 WL 3809765 (Tenn.
Ct. App. Aug. 4, 2014), perm. app. denied (Tenn. Nov. 19, 2014), as in the instant appeal,
appellant was granted a voluntary nonsuit without prejudice in the trial court and then
sought appeal in this Court. Relying on Martin, we dismissed the appeal for lack of subject
matter jurisdiction. Specifically, we held that “there appears to be no justiciable issue for
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this Court to review as the judgment on appeal is not adverse to Grunloh, the only
remaining appellant in this proceeding.” Hudson, 2014 WL 3809765, at *1 (citing Benson
v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct. App. 2007) (holding that the lack of a judgment
“adverse” to the party appealing said judgment deprives the appellate court of jurisdiction
to entertain the appeal)). The same is true here. Husband’s first issue does not arise from
an adverse judgment. Oliver v. Hydro-Vac Services, Inc., 873 S.W.2d 694, 696 (Tenn. Ct.
App. 1993) (concluding that a party is ordinarily not aggrieved when no judgment is
rendered against him). As such, this Court lacks jurisdiction over the question of
“[w]hether the email settlement agreement is enforceable.” Hudson, 2014 WL 3809765,
at *1.
Furthermore, concerning Husband’s second issue, the contested discovery involved
the trial court’s order requiring Wife to produce certain telephone and email records. These
records would likely go to the issue of alimony. Having been relieved of his alimony
obligation and having nonsuited his case, the discovery issue surrounding telephone and
email records is moot.
At oral argument before this Court, Husband’s attorney conceded the foregoing
points. When asked the effect of the nonsuit on Husband’s issues, Husband’s attorney
stated that “based on the nonsuit, there was no longer any controversy” concerning the
enforceability of the settlement agreement. As to the discovery issue, Husband’s attorney
also conceded that this issue would be rendered moot if the nonsuit precluded our review
of other issues arising from Husband’s substantive lawsuit. We agree. As such, our
jurisdiction extends only to the question of whether the trial court erred in granting Wife’s
attorney’s fees and costs. We now turn to address this issue.
III. Standard of Review
As noted above, Wife’s claim for attorney’s fees alternatively rests on statutory and
contractual grounds. Both the interpretation of statutes and the interpretation of contracts
are questions of law and, therefore, require a de novo review on appeal with no presumption
of correctness given to the trial court's conclusions of law. See State v. Williams, 38 S.W.3d
532, 535 (Tenn. 2001) (indicating that the construction of statutes and the application of
the law to the facts are questions of law); see also Guiliano v. Cleo, Inc., 995 S.W.2d 88,
95 (Tenn. 1999) (holding that “[t]he interpretation of a contract is a matter of law that
requires a de novo review on appeal”).
IV. Analysis
In Cracker Barrel Old Country Store, Inc. v. Epperson, the Tennessee Supreme
Court explained the “American Rule”:
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Tennessee, like most jurisdictions, adheres to the “American rule” for award
of attorney fees. John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528,
534 (Tenn. 1998); Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d 336,
338 (Tenn. 1985). Under the American rule, 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 rule applies, allowing for recovery of such fees in a particular case.
Taylor [v. Fezell], 158 S.W.3d [352,] at 359 [(Tenn. 2005)]; John Kohl, 977
S.W.2d at 534.
Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009)
(footnote omitted).
In its May 11, 2021 order, the trial court held that Wife was entitled to her attorney’s
fees. In relevant part, the order states:
In ruling on the appropriateness of an award of attorney fees in this
matter, the Court looks to the relevant statutory provisions, case law and the
provision regarding attorney fees in the parties’ Marital Dissolution
Agreement. The Marital Dissolution Agreement Provides,
In the event it becomes reasonably necessary for either party to
institute or defend legal proceedings related to the enforcement
of any provision of this Agreement, the prevailing party shall
also be entitled to a judgment for reasonable expenses,
including attorney's fees, incurred in connection with such
proceedings."
MDA, Section XV. Additionally, there is a relevant statutory provision
which deals with the award of attorney fees in proceedings to enforce, alter,
change, or modify a decree of alimony. The statute, T.C.A. §36-5-103(c),
provides in relevant part,
(c) A prevailing party may recover reasonable attorney’s fees,
which may be fixed and allowed in the court's discretion, from
the non-prevailing party in any criminal or civil contempt
action or other proceeding to enforce, alter, change, or modify
any decree of alimony, child support, or provision of a
permanent parenting plan order, or in any suit or action
concerning the adjudication of the custody or change of
custody of any children, both upon the original divorce hearing
and at any subsequent hearing.
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T.C.A. §36-5-103(c). Based on the language of this statute, as well as the
provision in the Marital Dissolution Agreement, the Court must determine
whether either party, if any, may be deemed the prevailing party for purposes
of awarding attorney fees.
The Supreme Court has identified a voluntary non-suit as insufficient
to meet the standard of a “favorable termination” on the merits required in a
suit for malicious prosecution. Himmelfarb v. Allain, 380 S.W.3d 35.
However, this conclusion has not been applied outside the realm of malicious
prosecution claims. While a persuasive argument could be made supporting
the proposition that Ms. Colley is indeed the prevailing party, the Court need
not address a conclusion on that issue. Respondent sought, in her Answer to
the Petition affirmative relief by a prayer for an award of attorney fees far
before the current Motion for fees was filed. Petitioner’s voluntary dismissal
did not operate to dismiss Ms. Colley’s prayer for relief. It follows then, that
the voluntary nonsuit was not a final order from which an appeal could be
taken.
Based on the foregoing, this Court finds that [Wife’s] Motion for
Attorney Fees is well-taken and is hereby granted.
In the first instance, Wife’s claim for attorney’s fees does not rest on the question
of whether the order on Husband’s voluntary nonsuit was a final order. Furthermore, the
resolution of the issue does not rest on whether Wife’s prayer for attorney’s fees constituted
an independent cause of action, or merely a prayer for relief in her answer. Rather, to
justify an award of attorney’s fees, Wife must show some exception to the American Rule.
Here, Wife sought deviation from the American Rule on three alternative theories: (1) the
abusive lawsuit statute, Tenn. Code Ann. § 29-41-106(b)(1); (2) the parties’ MDA; and (3)
Tennessee Code Annotated section 36-5-103(c). We will address each of these theories in
turn.
A. Abusive Lawsuit Statute
Tennessee Code Annotated section 29-41-106 provides, in relevant part:
(a) If the court finds by a preponderance of the evidence that a person filing
a civil action is an abusive civil action plaintiff, and that any or all civil
actions filed by the abusive civil action plaintiff against the abusive civil
action defendant that are pending before the court are abusive civil actions,
the civil actions shall be dismissed.
(b) In addition to dismissal of any pending abusive civil action within the
jurisdiction of the court, the court shall:
(1) Tax all costs of any abusive civil action pending in the court at the time
of the court's finding pursuant to subsection (a) against the abusive civil
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action plaintiff;
(2) Award the civil action defendant reasonable attorney fees and all
reasonable costs of defending the abusive civil action; and
In its January 7, 2021 order, the trial court denied Wife’s abusive lawsuit claim. She
does not appeal this holding. Under the plain language of section 29-41-106(a), the court
must first find “by a preponderance of the evidence that a person filing a civil action is an
abusive civil action plaintiff” before it can proceed, under sections 29-41-106(b)(1)-(2), to
award costs and attorney’s fees. After the trial court denied Wife’s claim for abusive
lawsuit, there was no basis for an award of attorney’s fees under Tennessee Code
Annotated section 29-41-106(b)(2).
B. MDA and Tennessee Code Annotated Section 36-5-103(c)
As set out in context in the trial court’s May 11, 2021 order, supra, both the MDA
and Tennessee Code Annotated section 36-5-103(c) allow for an award of attorney’s fees
to a prevailing party. Specifically, the MDA states “the prevailing party shall also be
entitled to a judgment for reasonable expenses, including attorney’s fees,” and the statute
provides that “[a] prevailing party may recover reasonable attorney’s fees.” The question,
then, is whether Wife is a prevailing party in this lawsuit. Resolution of this question rests
on the effect of Husband’s nonsuit.
In its May 11, 2021 order, the trial court acknowledged that “[t]he Supreme Court
has identified a voluntary non-suit as insufficient to meet the standard of a ‘favorable
termination’ on the merits required in a suit for malicious prosecution.” Himmelfarb v.
Allain, 380 S.W.3d 35 (Tenn. 2012). In Himmelfarb, the Tennessee Supreme Court
addressed the issue of whether the plaintiff’s voluntary dismissal of the lawsuit constituted
a favorable termination for the defendant for purposes of satisfying the third element of a
malicious prosecution cause of action. The underlying action in that case was a medical
malpractice lawsuit that a patient dismissed after learning that another party was
responsible for leaving a guide wire in her vein during a medical procedure. Himmelfarb,
380 S.W.3d at 36. The doctors named in the initial malpractice action filed a malicious
prosecution case against the patient after she dismissed her complaint against them. The
patient moved for summary judgment, arguing that the doctors could not prove the
malpractice action had been terminated in their favor. Id. at 36-37. After considering the
effect of voluntary nonsuits in other jurisdictions, the Himmelfarb Court determined that
“a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a
termination on the merits for the purposes of a malicious prosecution claim.” Id. at 38-41.
The Court reasoned that the merits of a case are not considered when a case is dismissed
on procedural grounds. Id. at 40-41 (citing Parrish v. Marquis, 172 S.W.3d 526, 532
(Tenn. 2005) (holding that a favorable termination was not reached when the case was
dismissed because the statute of limitations had expired)).
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In its May 11, 2012 order, the trial court limited the holding in Himmelfarb to
malicious prosecution cases, i.e., “[The Himmelfarb Court’s conclusion [that “a voluntary
nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a termination on the
merits for the purposes of a malicious prosecution claim,”] has not been applied outside
the realm of malicious prosecution claims.” However, this Court has applied the
Himmelfarb holding in contexts other than malicious prosecution. For example, in
Jasinskis v. Cameron, homeowners sued their builder, asserting claims for violations of
the Tennessee Consumer Protection Act. Jasinskis v. Cameron, No. M2019-01417-COA-
R3-CV, 2020 WL 2765845 (Tenn. Ct. App. May 27, 2020). As is relevant to this appeal,
the Jasinskis Court reasoned that
the trial court in Himmelfarb neither addressed the merits of the plaintiff's
claims nor the liability of the defendant. As a result, the Himmelfarb
plaintiff's voluntary dismissal of his claims against the defendant was not a
dismissal on the merits, and neither party ended up as the “prevailing party.”
[] see also Fit2Race, Inc. v. Pope, No. M2015-00387-COA-R3-CV, 2016
WL 373313, at *5 (Tenn. Ct. App. Jan. 29, 2016). The result is the same here.
Once the Guzmans nonsuited their claims against Clark, neither party was a
prevailing party.
Jasinskis, 2020 WL 2765845, at *5 (some citations omitted). Relying, inter alia, on
Jasinskis, in Justice v. Craftique Construction, Inc., this Court reiterated:
As our Supreme Court has stated, “[w]hen a voluntary nonsuit is taken, the
rights of the parties are not adjudicated, and the parties are placed in their
original positions prior to the filing of the suit.” Himmelfarb v. Allain, 380
S.W.3d 35, 40 (Tenn. 2012); see also Cooper v. Glasser, 419 S.W.3d 924,
930 (Tenn. 2013); Jasinskis v. Cameron, No. M2019-01417-COA-R3-CV,
2020 WL 2765845, at *5 (Tenn. Ct. App. May 27, 2020). A plaintiff’s
voluntary nonsuit “terminates the action without an adjudication of the
merits” and leaves the parties “as if no action had been brought at all.” 27
C.J.S. Dismissal and Nonsuit § 11 (2020); see also Nat'l R.R. Passenger
Corp. v. Int'l Ass'n of Machinists & Aerospace Workers, 915 F.2d 43, 48
(1st Cir. 1990) (stating that voluntary dismissal “‘carries down with it
previous proceedings and orders in the action, and all pleadings, both of
plaintiff and defendant, and all issues, with respect to plaintiff’s claim.’”)
(quoting Bryan v. Smith, 174 F.2d 212, 214 (7th Cir. 1949)); 24 AM. JUR.
2D Dismissal § 4 (2020) (“Nonsuit is a procedural step that terminates the
pending litigation but leaves the issues of the cause undecided.”).
Justice v. Craftique Construction, Inc., No. E2019-00884-COA-R3-CV, 2021 WL
142146, at *3 (Tenn. Ct. App. Jan. 15, 2021). Based on the foregoing, Husband’s nonsuit
“terminate[d] the action without an adjudication of the merits” and left the parties “as if no
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action had been brought at all.” Id. As such, neither party is a “prevailing party” for
purposes of triggering a right to recover attorney’s fees under either the MDA or Tennessee
Code Annotated Section 36-5-103(c). Accordingly, we conclude that the trial court erred
in awarding Wife her attorney’s fees.
V. Conclusion
For the foregoing reasons, the trial court’s order awarding Appellee attorney’s fees
is reversed, and the case is remanded for such further proceedings as may be necessary and
are consistent with this opinion. Costs of the appeal are assessed one-half to Appellant,
John Shackelford Colley, III, and one-half to Appellee, Vanessa Young Colley (Turner),
for all of which execution may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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