Deborah Bistolfi Felker v. Rex Stephen Felker ( 2021 )

08/10/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 11, 2021 Session
DEBORAH BISTOLFI FELKER ET AL. v. REX STEPHEN FELKER
Appeal from the Circuit Court for Shelby County
No. CT-1907-19 Valerie L. Smith, Judge
___________________________________
No. W2019-01925-COA-R3-CV
___________________________________
This case involves a post-divorce complaint to enforce the parties’ Marital Dissolution
Agreement (“MDA”), which was executed in 2005 in Shelby County, Tennessee. The
complaint was filed in the Shelby County Circuit Court (“trial court”) by the wife and the
parties’ adult son. The husband, now a resident of Hamblen County, Tennessee, filed a
motion to dismiss based on, inter alia, lack of personal jurisdiction, improper venue, and
expiration of the statute of limitations. The husband also subsequently filed an answer to
the complaint, denying that the wife was entitled to relief and asserting various
affirmative defenses. The trial court denied the husband’s motion to dismiss, determining
that jurisdiction was proper in Shelby County. The court further found that the husband
had breached the terms of the MDA and that the complaint was not time-barred. The
court ordered the husband to procure life insurance for the benefit of the parties’ son
within thirty days and to cooperate with the wife’s procurement of additional life
insurance on the husband’s life. The court also ordered the husband to pay the wife’s
attorney’s fees. The husband has appealed. Determining that the applicable statute of
limitations had expired before the complaint was filed, we reverse the trial court’s
judgment and remand for entry of a judgment of dismissal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and CARMA DENNIS MCGEE, J., joined.
David A. Lufkin, Sr., Knoxville, Tennessee, for the appellant, Rex Stephen Felker.
G. Hite McLean, III, Memphis, Tennessee, for the appellees, Deborah Bistolfi Felker and
Stewart James Felker.
OPINION
I. Factual and Procedural Background
On August 12, 2005, Deborah Bistolfi Felker (“Wife”) and Rex Stephen Felker
(“Husband”) executed an MDA during their divorce proceedings in the trial court. The
MDA was filed with the trial court on August 17, 2005, and the trial court subsequently
entered a final decree of divorce on September 30, 2005. Although the final divorce
decree mentioned that an MDA had been executed, the MDA was not incorporated by
reference into the final decree.
On April 30, 2019, Wife filed a complaint in the trial court alleging that Husband
had breached the terms of the MDA.1 The parties’ adult son, Stewart James Felker
(“Son”), was also named as a plaintiff in the action, although he did not personally sign
the complaint.2 In their complaint, Wife and Son (collectively, “Plaintiffs”) cited
language in the MDA providing, inter alia, as follows:
Husband shall maintain in full force and effect, a minimum of
$150,000 of life insurance on himself, naming a testamentary trust to be
provided for [Son], through Husband’s Will, as the sole beneficiary.
Husband affirms that such life insurance is already in place, through
his employer’s group insurance benefits, with [Son] named as the sole
beneficiary, and shall remain as such, until his Will can be revised with
provisions for the testamentary trust, reviewed by an attorney, and the Bank
or Financial Institution.
Husband further agrees to provide a copy of the revised Will, within
thirty (30) days of the entry of the Final Decree of Divorce, designating
Wife and a major bank or financial institution as successor or co-trustees,
with Wife named first, and also stipulating that [Son] shall be the
irrevocable beneficiary of such life insurance policy, or successor policies
thereto.
(Paragraph numbering omitted.) In addition, the MDA provided that Wife would have
the option of acquiring additional life insurance on Husband’s life and that Husband
would cooperate by submitting to any examinations or providing documents necessary to
obtain such insurance.
1
This complaint bears a different case number than the parties’ original divorce action.
2
We note that Son had attained the age of majority on April 22, 2005.
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Plaintiffs asserted in the complaint that Husband had breached the provisions of
the MDA by (1) failing to provide a revised copy of his will, (2) failing to establish a
testamentary trust, (3) failing to maintain the requisite life insurance policy, and (4)
refusing to cooperate so that Wife could obtain life insurance on his life. Plaintiffs
sought an order from the trial court directing Husband’s compliance with the terms of the
MDA, as well as an award of their attorney’s fees incurred pursuant to the MDA’s terms.
Plaintiffs attached a copy of the MDA to the complaint as well as a copy of a letter
that had been written by Husband on November 14, 2016. In this letter, Husband stated
that immediately after the parties’ divorce, he had inquired about establishing a
testamentary trust but was informed that doing so was “far more complicated and
expensive than we realized, and intended for much larger sums of money.” Husband also
stated in the letter that he had updated his will in 2009 and provided a copy to Wife and
Son. Husband acknowledged that he had maintained a life insurance policy with Son as
beneficiary until Husband retired in January 2016. According to Husband, the intent of
the parties in executing the MDA containing the above-quoted life insurance
requirements was so that the life insurance proceeds could replace Husband’s alimony
payments to Wife until such time as the alimony obligation was fully paid. Husband
claimed that his alimony obligation had ceased in 2013 and that he had overpaid his
obligation by approximately $51,000.00.
The record reflects that Plaintiffs’ attorney scheduled the matter for hearing on
June 28, 2019. The summons issued to Husband indicates that Husband was served via
hand delivery on May 8, 2019, at his residence in Morristown, Tennessee. The summons
was served by a private process server, who subsequently executed an affidavit of service
that was filed with the trial court.
On June 10, 2019, Husband filed a motion seeking dismissal of the complaint
pursuant to Tennessee Rule of Civil Procedure 12.02. Husband also sought a protective
order providing that Husband did not have to appear at the scheduled hearing or answer
discovery. Husband asserted that venue was improper because the complaint instituted a
new action against him in Shelby County while he was a resident of Hamblen County.
Husband also contended that the trial court lacked personal jurisdiction over him and
further asserted that Plaintiffs lacked standing. In addition, Husband asserted that in
Tennessee, judgments “are only valid for ten (10) years unless renewed within those ten
years,” arguing that the judgment at issue was more than thirteen years old. Husband
consequently argued that the trial court lacked subject matter jurisdiction due to
expiration of the applicable statute of limitations.3 Husband further posited that the
doctrine of laches operated to bar the action.
3
As our Supreme Court has pointed out: “A statute of limitations defense challenges the sufficiency of a
particular claim, not the subject matter jurisdiction of the court in which the claim is filed.” In re Estate
of Brown, 402 S.W.3d 193, 199 (Tenn. 2013).
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On June 13, 2019, Plaintiffs filed a motion to strike, arguing that Husband’s
motion to dismiss was untimely because it was filed within thirty days of the hearing date
in violation of Shelby County Circuit Court Local Rule 6. Plaintiffs further asserted that
Husband’s attorney had not entered a proper appearance in the matter. In addition,
Plaintiffs purportedly filed a motion seeking to compel discovery. The trial court
conducted a hearing concerning the pending motions on June 21, 2019. During that
hearing, Husband’s counsel acknowledged that he had filed a motion to dismiss and had
set the motion for hearing on June 28, 2019. Because Husband’s motion to dismiss had
not yet been placed in the case file, the court continued the hearing until July 31, 2019.
Husband’s counsel indicated that he would brief the issues raised in the motion to dismiss
prior to that date.
On July 11, 2019, the trial court entered an order concerning the June 21, 2019
hearing, providing:
1. [Husband] filed a Motion to Dismiss and for Protective Order on
June 10, 2019 and erroneously set same for June 28, 2019 in
noncompliance with the Local Rules of the Shelby County Circuit
Court.
2. Due to [Husband’s] failure to comply with the Rules, the disposition
of the Motion to Dismiss and all other pending Motions is hereby
deferred until the trial on the merits of Plaintiffs’ Complaint which is
hereby specially set for hearing on July 31, 2019 at 10:00 A.M.
Plaintiffs thereafter filed a response in opposition to Husband’s motion to dismiss.
On July 31, 2019, Husband filed an affidavit in support of the motion to dismiss.
Husband stated that he had been a resident of Hamblen County and the “Knoxville
vicinity” since 2008 and that Hamblen County was approximately 450 miles from the
Shelby County Courthouse. Husband affirmed that he had attempted to comply with the
provisions of the MDA by immediately corresponding with his employer concerning
insurance coverage. Husband related that since he underwent open-heart surgery in 2009,
he had been “uninsurable for life insurance coverage” despite his attempts to obtain
coverage. According to Husband, he had provided Wife with a copy of his latest will,
which was executed in 2009 prior to his surgery. Husband also claimed that he had
overpaid his alimony obligation to Wife by at least $51,000.00.
Husband concomitantly filed an answer and counterclaim. In his answer, Husband
averred that the MDA was unclear and ambiguous. Husband admitted that he had never
established a testamentary trust pursuant to the MDA’s terms. Husband denied having
failed to obtain the required life insurance policy and also denied having been
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uncooperative with Wife’s attempt to obtain a life insurance policy. Husband pled
various affirmative defenses, including expiration of the statute of limitations and laches.
In his counterclaim, Husband sought an award of attorney’s fees solely from Wife.
Husband additionally filed a memorandum in support of his motion to dismiss on
July 31, 2019, wherein he clarified that he was relying upon expiration of the six-year
statute of limitations applicable to contracts. Husband postulated that based upon the
plain language of the MDA, the claim for breach of contract would have accrued on
October 30, 2005, when Husband failed to furnish Wife with a copy of a revised will
providing for a testamentary trust for Son.
The trial court conducted a hearing on July 31, 2019, taking all matters under
advisement at the hearing’s conclusion. Following the filing of Wife’s answer to
Husband’s counterclaim and Husband’s motion to allow a reply thereto, the trial court
entered an order on October 9, 2019, denying Husband’s motion to dismiss. In its order,
the court stated that due to confusion regarding knowledge of the Shelby County local
rules as well as “email correspondence with the clerk, FedEx delivery to Chancery Court
rather than Circuit Court, and e-filing,” the court had determined at the July 31, 2019
hearing that it would hear the proof in the matter and take the motion to dismiss under
advisement in the interest of judicial economy.
The trial court ruled in the October 9, 2019 order that “jurisdiction is proper in
Shelby County as the breach occurred here via [Husband’s] letter dated November 14,
2016.” The court further found that the breach occurred on that date and that “nothing in
the record . . . show[s] that [Husband] failed to comply with the provisions of the MDA
prior to that date.” As such, the court determined that the breach had occurred within the
six-year statute of limitations and therefore denied Husband’s motion to dismiss.
With regard to Plaintiffs’ claims, the trial court stated in its order that it had heard
testimony from Chirag Chauhan, a certified financial planner and investment fiduciary,
who testified that “health conditions do not necessarily preclude the procurement of life
insurance.” The court determined Mr. Chauhan’s testimony to be credible. The court
also noted that it had heard Wife’s testimony concerning the parties’ intent when
executing the MDA and likewise found Wife’s testimony to be credible. The court
further considered as evidence Husband’s November 2016 letter, which was made an
exhibit at trial.
According to the trial court’s findings in its order, Wife testified that it was the
parties’ intent for Husband to maintain life insurance for the benefit of Son and for Wife
to be able to obtain such insurance as well. The court determined that Husband had
presented no proof to dispute Wife’s evidence of Husband’s breach of the MDA’s terms.
The court accordingly ordered Husband to procure life insurance in the amount of
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$150,000.00 for the benefit of Son within thirty days and to cooperate with Wife’s
procurement of life insurance covering Husband’s life.
The trial court also found that the MDA provided for an award of attorney’s fees
to a prevailing party upon determination of a breach. The court therefore ordered
Husband to pay Wife’s attorney’s fees in the amount of $16,176.66. Husband timely
appealed.
Following the filing of various motions by the parties concerning the record on
appeal, this Court remanded the matter to the trial court on May 26, 2020, for the limited
purpose of allowing the trial court to rule on Plaintiffs’ motion to correct the record. On
June 25, 2020, the trial court entered an order granting Plaintiffs’ motion to correct the
designation of the record. The trial court incorporated by reference a previous order
approving Plaintiffs’ designation of the record and granting to Plaintiffs an award of
$4,262.50 in attorney’s fees incurred in bringing such motion before the court.
II. Issues Presented
Husband presents the following issues for this Court’s review, which we have
restated slightly:
1. Whether the trial court erred by determining that Plaintiffs’ action
was not time-barred by the applicable statute of limitations.
2. Whether the trial court and its clerk violated Husband’s due process
rights provided by the United States and the Tennessee
Constitutions.
Plaintiffs present the following additional issue:
3. Whether this Court should award to Plaintiffs their attorney’s fees
incurred in this appeal pursuant to the MDA’s provisions and/or
Tennessee Code Annotated § 27-1-122.
III. Standard of Review
Husband essentially argues that the trial court erred by failing to grant his motion
to dismiss based upon expiration of the statute of limitations, which issue is analyzed
pursuant to Tennessee Rule of Civil Procedure12.02(6). See, e.g., Gunter v. Lab. Corp.
of Am., 121 S.W.3d 636, 638 (Tenn. 2003). The trial court’s denial of the motion to
dismiss presents a question of law that this Court reviews de novo with no presumption of
correctness accorded to the conclusions reached below. See Conley v. State, 141 S.W.3d
591, 594-95 (Tenn. 2004); Leach v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004). “When
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reviewing a dismissal of a complaint under Rule 12.02(6), this Court must take the
factual allegations contained in the complaint as true and review the trial court’s legal
conclusions de novo without any presumption of correctness.” Leach, 124 S.W.3d at 90.
Although the trial court relied upon Husband’s letter, which was attached to the
complaint, when ruling on the motion to dismiss, we note that this fact does not serve to
convert the motion to one seeking summary judgment. Generally, “[i]f matters outside
the pleadings are presented in conjunction with either a Rule 12.02(6) motion [to dismiss]
or a Rule 12.03 motion [for judgment on the pleadings] and the trial court does not
exclude those matters, the court must treat such motions as motions for summary
judgment and dispose of them as provided in Rule 56.” Patton v. Estate of Upchurch,
242 S.W.3d 781, 786 (Tenn. Ct. App. 2007). Exceptions to this general rule exist,
however, for “matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, items appearing in the record of the case,
and exhibits attached to the complaint whose authenticity is unquestioned.” W. Exp., Inc.
v. Brentwood Servs., Inc., No. M2008-02227-COA-R3-CV, 2009 WL 3448747, at *3
(Tenn. Ct. App. Oct. 26, 2009) (quoting Ind. State Dist. Council of Laborers v. Brukardt,
No. M2007-02271-COA-R3-CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19, 2009)
(stating that the above-listed items “may be considered . . . without converting the motion
into one for summary judgment.”)). Because Husband’s letter was attached to the
complaint and its authenticity was not questioned, we determine that the trial court
properly analyzed the statute of limitations issue pursuant to the Rule 12.02(6) standard.
IV. Compliance with Tennessee Rule of Appellate Procedure 27(a)
As a threshold issue, Plaintiffs argue that Husband’s principal brief on appeal fails
to comply with the requirements of Tennessee Rule of Appellate Procedure 27(a) such
that the issues he has raised should be deemed waived and his appeal dismissed. Rule
27(a) states in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
***
(7) An argument, which may be preceded by a summary of
argument, setting forth:
(A) the contentions of the appellant with respect to the
issues presented, and the reasons therefor, including
the reasons why the contentions require appellate
relief, with citations to the authorities and appropriate
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references to the record (which may be quoted
verbatim) relied on; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the
discussion of the issue or under a separate heading
placed before the discussion of the issues)[.]
Plaintiffs posit that Husband has failed to provide appropriate authority for his
contentions on appeal and has likewise failed to include proper citations to the appellate
record.
As this Court has previously explained with regard to deficiencies in an appellate
brief:
Our Courts have “routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument
section of the brief as described by Rule 27(a)(7) constitutes a waiver of the
issue[s] [raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).
In Bean, we went on to hold that “an issue is waived where it is simply
raised without any argument regarding its merits.” Id. at 56; see also
Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
(holding that the failure of a party to cite to any authority or to construct an
argument regarding his or her position on appeal constitutes waiver of that
issue). As we stated in Newcomb, a “skeletal argument that is really
nothing more than an assertion will not properly preserve a claim.”
Newcomb, 222 S.W.3d at 400. It is not the function of this Court to verify
unsupported allegations in a party’s brief or to research and construct the
party’s argument. Bean, 40 S.W.3d at 56.
Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009). Having thoroughly
reviewed Husband’s appellate brief herein, we conclude that he has sufficiently complied
with Rule 27(a) such that we are able to address his contentions without having to
construct the argument on his behalf. We therefore decline to consider his issues waived.
V. Statute of Limitations
Husband argues that the trial court erred in its determination concerning the
applicable statute of limitations. Husband posits that because his breach of the MDA’s
provisions actually occurred in 2005, the breach of contract claim filed by Plaintiffs in
2019 was untimely. In its October 9, 2019 order, the trial court found that the breach
occurred on November 14, 2016, based on Husband’s letter of that date, and the court
noted that “nothing in the record . . . show[s] that [Husband] failed to comply with the
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provisions of the MDA prior to that date.” As such, the court determined that Plaintiffs’
breach of contract claim was timely filed within the six-year statute of limitations.
The parties do not dispute that the MDA’s provisions at issue herein retained their
contractual nature and therefore would properly be enforced in an “independent action
applying general principles of contract law.” See Brewer v. Brewer, 869 S.W.2d 928,
932 (Tenn. Ct. App. 1993) (explaining that MDA provisions not incorporated by
reference in the final decree and those neither approved nor disapproved by the trial court
may be enforced via a contract action); see also Long v. McAllister-Long, 221 S.W.3d 1,
9 (Tenn. Ct. App. 2006) (“To the extent that obligations in a marital dissolution
agreement retain their contractual character, they should be construed and enforced like
other contracts.”). Likewise, the parties do not dispute that the applicable statute of
limitations for an action asserting breach of contract is six years from the time the cause
of action accrued. See Tenn. Code Ann. § 28-3-109(a)(3).
Accordingly, the question that remains is whether the trial court properly
determined the date upon which the cause of action accrued for statute of limitations
purposes. As this Court has explained:
A cause of action for breach of contract accrues on the date of the
breach or when one party demonstrates a clear intention not to be bound by
the contract. Wilkins v. Third Nat’l Bank in Nashville, 884 S.W.2d 758,
761-62 (Tenn. Ct. App. 1994). “Thus, the statute of limitations begins to
run when a contracting party first knows or should know that the contract
will not be performed.” Wilkins, 884 S.W.2d at 762.
Coleman Mgmt., Inc. v. Meyer, 304 S.W.3d 340, 348-49 (Tenn. Ct. App. 2009) (footnote
and other internal citations omitted).
As this Court has elucidated concerning review of a motion to dismiss:
A Rule 12.02(6) motion to dismiss challenges only the legal
sufficiency of the complaint itself, and not the strength of the plaintiff’s
proof. The court must construe the complaint liberally, presuming all facts
as alleged by plaintiff to be true and affording plaintiff the benefit of all
reasonable inferences. The trial court should not dismiss the complaint for
failure to state a claim unless it appears that the plaintiff can prove no facts
in support of the claim that would warrant relief.
Davidson v. Bredesen, 330 S.W.3d 876, 882 (Tenn. Ct. App. 2009) (internal citations
omitted).
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Taking the factual allegations contained in the complaint as true, it would appear
that the earliest breach of the MDA occurred in 2005 when Husband “failed and/or
refused to provide [Wife] with a copy of his Will” and to “establish a testamentary trust”
in accordance with the MDA. The MDA specifically provides in pertinent part:
Husband shall maintain in full force and effect, a minimum of
$150,000 of life insurance on himself, naming a testamentary trust to be
provided for [Son], through Husband’s Will, as the sole beneficiary.
Husband affirms that such life insurance is already in place, through
his employer’s group insurance benefits, with [Son] named as the sole
beneficiary, and shall remain as such, until his Will can be revised with
provisions for the testamentary trust, reviewed by an attorney, and the Bank
or Financial Institution.
Husband further agrees to provide a copy of the revised Will, within
thirty (30) days of the entry of the Final Decree of Divorce, designating
Wife and a major bank or financial institution as successor or co-trustees,
with Wife named first, and also stipulating that [Son] shall be the
irrevocable beneficiary of such life insurance policy, or successor policies
thereto.
The parties’ final decree of divorce was entered on September 30, 2005; therefore, the
above-quoted provisions would have required Husband to provide Wife with such
documentation no later than October 30, 2005. According to Plaintiffs’ allegations in the
complaint, Husband failed to do so and also failed to cooperate with Wife to allow her to
obtain a life insurance policy on his life.
The present action was not filed until 2019, despite Plaintiffs’ allegations that the
earliest breach occurred in 2005. Plaintiffs argue, however, that the MDA’s provisions
were “continuing,” such that the most recent breach in 2016 with regard to maintenance
of Husband’s life insurance policy is the important date. Although Plaintiffs cite no
authority for this contention, we recognize that the courts of Tennessee have concluded
that a contract may be entire or severable and that such designation will affect the
determination of when a breach occurs and when the statute of limitations begins to run.
See Greene v. THGC, Inc., 915 S.W.2d 809, 811 (Tenn. Ct. App. 1995). As the Greene
Court further instructed:
“Where a contract is severable or divisible, breaches of its severable
parts will give rise to separate causes of action accruing at different times, .
. .” Brockett v. Pipkin, 25 Tenn. App. 1, 8, 149 S.W.2d 478, 482 (1941)
(quoting 37 C.J. Limitations of Actions § 216 (1925)). Under these
circumstances, the statute of limitation will begin to run at the time of each
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breach. Id. On the other hand, “if a continuing contract is entire, an action
can be maintained on it only when a breach occurs or the contract is in
some way terminated, and the statute begins to run from that time only.”
54 C.J.S. Limitations of Actions, § 154 (1987).
Id.
With regard to the question of what constitutes a severable contract, this Court has
explained:
Basically a contract is not severable or [divisible] when its purpose,
terms and nature contemplate that its parts and consideration shall be
interdependent and common to each other. There is no precise definition of
when a contract is “entire” or when it is “severable” and each case must
ultimately depend on its own facts; however, a whole or entire contract has
been referred to as a contract in which the “promises of both parties are
interdependent and relate to the same subject matter,” Williams Hardware
Co. v. Phillips, 109 W. Va. 109, 153 S.E. 147 (1930), or “is one which may
not be divided into independent parts.” LeMire v. Haley, 91 N.H. 357, 19
A.2d 436, 439 (1941). A [divisible] contract, on the other hand, has been
referred to as one in which the performance is “divided into different
groups, each set embracing performances which are the agreed exchange
for each other,” Pittsburgh Plate Glass Co. v. Jarrett, 42 F. Supp. 723, 730
(M.D. Ga. 1942), modified on other grounds, Jarrett v. Pittsburgh Plate
Glass Co., 131 F.2d 674 (5th Cir. Ga. 1942), or a contract in which the
“performance is divided into two or more parts with a definite
apportionment of the total consideration to each part.” Integrity Flooring v.
Zandon Corp., 130 N.J.L. 244, 32 A.2d 507, 509 (N.J. 1943).
James Cable Partners, L.P. v. City of Jamestown, 818 S.W.2d 338, 344 (Tenn. Ct. App.
1991) (other internal citations omitted).
In the case at bar, the trial court stated no conclusion concerning the nature of the
parties’ MDA as either an entire or a severable contract; however, the trial court’s
determination that the breach occurred in 2016 appears to assume that the contract was
severable. Inasmuch as this presents a question of law that we must analyze de novo, we
have examined the MDA’s language and have determined that the MDA is not a
severable contract. The MDA contains “promises of both parties [that] are
interdependent and relate to the same subject matter,” and separate consideration cannot
be apportioned to each of the items. See id.; see also Bratton v. Bratton, 136 S.W.3d 595,
602 (Tenn. 2004).
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We find the Bratton decision to be instructive in this matter. In Bratton, the
parties entered into a post-nuptial agreement providing for the future division of their
property and support for the wife in the event that the husband committed statutory
grounds for a divorce. See 136 S.W.3d at 598-99. The trial court determined that the
agreement was severable and that consideration existed for the portion providing for
property distribution but not for the portion providing for spousal support. See id. at 602.
Our Supreme Court disagreed with this severability finding, stating:
If several things are to be performed under a contract and the consideration
is apportioned to each of the items, the contract is ordinarily regarded as
severable. However, a contract is not severable or [divisible] when its
purpose, terms and nature contemplate that its parts and consideration shall
be interdependent and common to each other.
***
Considering the intent of the parties in forming this agreement, we
hold that the agreement is not severable. The purpose of the agreement was
to provide support for the wife in the event of a divorce. While one
paragraph deals with property and one deals with income, both are
triggered by the same event—a divorce following statutory fault by the
husband. The provisions were not intended to be performed separately, but
rather as part of a single divorce proceeding.
Id. (other internal citations omitted).
Similarly, here, we determine that the MDA is not severable because the purpose
of the agreement was to distribute the parties’ property and provide financial support and
security for Wife (and Son) based on the parties’ divorce. As such, the provisions were
triggered by the same event and were part of a single divorce proceeding. Plaintiffs have
failed to demonstrate that separate consideration was apportioned to each item or that
performance was “divided into different groups, each set embracing performances which
are the agreed exchange for each other.” See James Cable Partners, 818 S.W.2d at 344.
We therefore determine that the trial court erred by concluding that the complaint
was filed within the applicable six-year statute of limitations. Wife’s allegations in the
complaint establish that Husband’s breach of the MDA’s provisions occurred in 2005
when he “failed and/or refused to provide [Wife] with a copy of his Will” and to
“establish a testamentary trust,” thereby demonstrating “a clear intention not to be bound
by the contract.” See Coleman Mgmt., 304 S.W.3d at 348-49. As such, the breach of
contract claim filed in 2019 was untimely, and the trial court erred by failing to grant
Husband’s motion to dismiss.
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VI. Due Process Argument
Husband also argues that the trial court violated the due process requirements
contained within the United States and the Tennessee Constitutions by, inter alia, failing
to rule upon his motion to dismiss prior to the trial date. Having determined that
Plaintiffs’ claims must be dismissed due to expiration of the applicable statute of
limitations, however, we determine this issue to be pretermitted as moot.
VII. Attorney’s Fees on Appeal
Plaintiffs assert that they should be awarded attorney’s fees on appeal pursuant to
the MDA’s provisions and/or Tennessee Code Annotated § 27-1-122 (2017). The MDA
provides:
In the event that it shall be determined by a court of competent jurisdiction
that either party shall have breached any of the covenants herein contained
in this Agreement . . . the offending party shall pay to the other his or her
reasonable attorney’s fees and court costs incurred in the enforcement of
the provisions of this Agreement . . . .
Inasmuch as Wife was unsuccessful in her attempt to enforce the MDA’s provisions, we
determine that an award of attorney’s fees is not appropriate pursuant to the above-quoted
language.
Tennessee Code Annotated § 27-1-122 provides for an award of attorney’s fees on
appeal when an appeal is deemed “frivolous” or is found to have been taken solely for
delay. Because Husband was successful in his appeal of the trial court’s judgment, we
determine that this statute does not provide authority for an award of attorney’s fees to
Plaintiffs in this matter.
VIII. Conclusion
For the foregoing reasons, we reverse the trial court’s judgment in its entirety and
dismiss the claims filed by Plaintiffs. We deny Plaintiffs’ request for an award of
attorney’s fees on appeal. We remand this matter to the trial court for entry of a
judgment of dismissal and collection of costs assessed below. Costs on appeal are
assessed to the appellees, Deborah Bistolfi Felker and Stewart James Felker.
s/ Thomas R. Frierson, II
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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