Doris Davis Flowers v. Terisa Kimmins ( 2020 )

10/27/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 1, 2020
DORIS DAVIS FLOWERS ET AL. v. TERISA KIMMINS ET AL.
Appeal from the Chancery Court for Shelby County
No. CH-16-1254 Walter L. Evans, Chancellor
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No. W2019-02091-COA-R3-CV
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In this appeal regarding the proceeds of the decedent’s life insurance policy, the Interim
Clerk and Master of the Shelby County Chancery Court (“trial court”) issued, pursuant to
local rule, a “Notice and Recommendation for Sua Sponte Dismissal for Lack of
Prosecution” after no activity concerning the case had occurred for over a year. The notice,
which directed the parties to appear before the trial court on September 10, 2019, was not
mailed to the defendant. Consequently, the defendant did not appear. Following the
hearing, the trial court ordered a scheduling conference, at which the defendant also did
not appear. During the scheduling conference, the trial court directed the plaintiffs to
submit testimony and other evidence concerning the proceeds of the life insurance policy.
Upon the plaintiffs’ request for a declaratory judgment, the trial court entered an order
finding, inter alia, that the defendant had failed to appear. The court awarded proceeds of
the life insurance policy to the plaintiffs and assessed costs against the defendant. The
defendant has appealed. On appeal, the parties have stipulated that the defendant did not
receive notice of the hearings. We therefore vacate the trial court’s order of final judgment
and remand the case for further proceedings consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.
Terisa Kimmins, Jackson, Tennessee, Pro Se.
Patrick J. Hillard, Memphis, Tennessee, for the appellees, Doris Davis Flowers and
Kimberly Flowers-Trotter Atkins.
MEMORANDUM OPINION1
Proceeding initially without benefit of counsel, the plaintiffs, Doris Davis Flowers
and Kimberly Flowers-Trotter Atkins (collectively, “Plaintiffs”), filed a complaint in the
instant action on July 29, 2016, averring, inter alia, that several years prior, the defendant,
Terisa Kimmins, had unlawfully caused the decedent, Lawrence H. Davis (“Decedent”), to
modify his life insurance policy to designate Ms. Kimmins as the beneficiary. In addition
to Ms. Kimmins, Plaintiffs also named American General Life Insurance Company
(“American General”) as a party to the lawsuit.2 Ms. Kimmins, also self-represented, filed
an answer on August 26, 2019, denying all substantive allegations. Notably, at the
conclusion of the answer, Ms. Kimmins listed her address as “189 Summer Drive Jackson,
Tenn. 38301” (“Summer Drive Address”).
American General filed an answer on September 19, 2016, requesting interpleader
relief and claiming that as a disinterested stakeholder, it should not be a party to the lawsuit.
The certificate of service indicates that the answer was mailed to Ms. Kimmins at the
Summer Drive Address. On January 18, 2017, the trial court entered an agreed order
dismissing American General from the litigation, provided that it would interplead the life
insurance policy proceeds into the registry of the court. As a signatory to the agreed order,
Ms. Kimmins listed her address on the order as the Summer Drive Address, and the
certificate of service demonstrates that the agreed order was likewise mailed to her at that
address.
The record reflects that at some point following Plaintiffs’ filing of the complaint
on July 29, 2016, but preceding the entry of the January 18, 2017 agreed order, Plaintiffs
retained attorney Linda Nettles Harris to represent them. Over a year later, Ms. Harris filed
a motion to withdraw on April 12, 2018. According to the certificate of service, the motion
was served upon Ms. Kimmins at the Summer Drive Address. The trial court entered an
order on May 4, 2018, permitting Ms. Harris to withdraw as counsel and affording
Plaintiffs thirty days to secure substitute counsel. According to the certificate of service, a
copy of the May 4, 2018 order was also mailed to Ms. Kimmins at the Summer Drive
Address.
1
Tennessee Court of Appeals Rule 10 provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
2
American General is not participating in this appeal.
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Pertinent to this appeal, more than a year later, the Interim Clerk and Master of the
Shelby County Chancery Court issued a “Notice and Recommendation for Sua Sponte
Dismissal for Lack of Prosecution” on August 7, 2019. The notice stated that it was issued
pursuant to Local Rule 22 of the Rules of the Chancery Court of Shelby County, which
provides:
Whenever a cause has remained on the Rule Docket for twelve (12)
months or more without steps being taken by the Plaintiff to prosecute the
case, the Clerk and Master or opposing parties shall be entitled, on motion,
to request the Court for a dismissal of the cause without prejudice at
Plaintiff’s costs.
Furthermore, the notice provided for a hearing to be held on September 10, 2019. The
certificate of service evinces that the notice was mailed to Plaintiffs and counsel for
American General, which was no longer a party to the lawsuit. However, there is no
certificate of service evincing service of the notice to Ms. Kimmins, who did not appear
for the September 10, 2019 hearing.
Although the trial court undisputedly conducted a scheduling conference on
November 5, 2019, the record does not contain a trial court order or notice setting the date
of the scheduling conference. Ms. Kimmins posits that the trial court made an oral
announcement regarding the scheduling conference during the September 10, 2019
hearing, at which Ms. Kimmins was not present. In any event, there is nothing in the record
to establish that Ms. Kimmins was given proper notice of the November 5, 2019 scheduling
conference.
On October 18, 2019, attorney Patrick J. Hillard filed a notice of appearance to
represent one of the plaintiffs, Ms. Flowers-Trotter Atkins. The certificate of service
indicates that the notice was not mailed to Ms. Kimmins at the Summer Drive Address.
Following the scheduling conference, the trial court considered proof from Plaintiffs
concerning the life insurance policy. The trial court then entered an “Order of Final
Judgment” on November 8, 2019, determining, in relevant part:
After careful consideration of the proof and Defendant Kimmins[’s]
failure to appear, the Court finds that Plaintiffs have offered credible
evidence to substantiate their claims and hereby declares Plaintiff Kimberly
Flowers-Trotter Atkins as the rightful beneficiary of the [Decedent’s] life
insurance policy . . . .
***
Costs shall be taxed against Defendant Terisa Kimmins.
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A copy of the order was mailed to Ms. Kimmins at the Summer Drive Address. Ms.
Kimmins timely appealed.3
On appeal, the parties stipulate that Ms. Kimmins did not receive proper notice of
either the September 10, 2019 or November 5, 2019 hearings. Moreover, the parties are in
accord that the trial court’s judgment should be vacated and the action remanded for a
hearing on the merits of the case. Upon careful review, we agree.
As this Court has previously explained concerning proper notice:
“One of the bedrock principles of this nation’s due process
jurisprudence is the right to notice and an opportunity to be heard before an
impartial trier-of-fact.” Karr. v. Gibson, [No. 01A01-9605-CH-00220,]
1998 WL 57536, at *2 (Tenn. Ct. App. Feb. 13, 1998) (citing United States
v. James Daniel Good Real Prop., 510 U.S. 43 (1993), and Phillips v. State
Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993)). Due process requires
notice that is reasonably calculated, under all the circumstances, to inform a
party of the pending action. See Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950); McClellan v. Bd. of Regents, 921 S.W.2d 684,
688 (Tenn.1996).
Smith v. Potter, No. M2011-01560-COA-R3-CV, 2012 WL 2159596, at *2 (Tenn. Ct. App.
June 13, 2012).
Our review of the record, particularly the certificate of service attendant to the
August 7, 2019 notice, clearly demonstrates that the notice was not mailed to Ms. Kimmins
at the Summer Drive Address. We note that Ms. Kimmins had previously received mailed
copies of various documents, including the January 18, 2017 agreed order, at the Summer
Drive Address, which was the sole mailing address Ms. Kimmins provided throughout the
litigation. However, Ms. Kimmins was not mailed or otherwise provided a copy of the
August 7, 2019 notice. Such notice would have alerted her to the docketing of the
September 10, 2019 hearing. Likewise, Ms. Kimmins did not receive notice of the trial
court’s November 5, 2019 scheduling conference hearing.
3
We respect Ms. Kimmins’s decision to proceed without benefit of counsel and note that pleadings
“prepared by pro se litigants untrained in the law should be measured by less stringent standards than those
applied to pleadings prepared by lawyers.” Stewart v. Schofield, 368 S.W.3d 457, 462 (Tenn. 2012) (citing
Carter v. Bell, 279 S.W.3d 560 568 (Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.
App. 2003); Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Although parties proceeding
without benefit of counsel are “entitled to fair and equal treatment by the courts,” we “must not excuse pro
se litigants from complying with the same substantive and procedural rules that represented parties are
expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
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During the November 5, 2019 hearing, the trial court apparently requested that
Plaintiffs present proof in support of their claim to Decedent’s life insurance policy
proceeds. Following Plaintiffs’ proof, the trial court entered an order on November 8,
2019, granting judgment in favor of Plaintiffs. In addition to awarding the life insurance
proceeds to Plaintiffs, the trial court taxed costs to Ms. Kimmins. On appeal, as referenced
above, the parties agree that this was in error due to Ms. Kimmins’s lack of notice of the
hearings.
Ms. Kimmins’s lack of notice of these proceedings constitutes a due process
violation which, as the parties stipulate, necessitates vacating the trial court’s judgment.
The record is devoid of evidence that Ms. Kimmins was provided “notice that is reasonably
calculated, under all the circumstances, to inform” her of the hearings. See Smith, 2012
WL 2159596, at *2 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)). We therefore vacate the trial court’s judgment in all respects, including the trial
court’s decision to tax costs to Ms. Kimmins.
Plaintiffs contend that they should not be taxed costs on appeal because their
“counsel offered to remedy the situation by drafting a joint motion to vacate” “in the
interest of judicial economy, cost, and merit.” Instead of agreeing to the joint motion, Ms.
Kimmins chose to file an appeal. Plaintiffs conclude that because the issue of notice could
have been resolved without appellate review, they should not bear the cost of the appeal.
Although we acknowledge Plaintiffs’ position in this regard, as well as Ms. Kimmins’s
right to file an appeal, we note that Tennessee Rule of Appellate Procedure 40(a) provides
that “if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only
as ordered by the appellate court.” In our discretion, we tax costs one-half to Plaintiffs and
one-half to Ms. Kimmins.
Conclusion
For the foregoing reasons, we vacate the judgment of the trial court in its entirety.
This case is remanded to the trial court for further proceedings consistent with this opinion
and collection of costs assessed below. Costs on appeal are taxed one-half to Plaintiffs and
one-half to Ms. Kimmins.
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THOMAS R. FRIERSON, II, JUDGE
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