Opinion
C.A. No. 01A01-9504-PB-00147.
October 19, 1999.
Appeal From The Probate Court Of Davidson County, The Honorable James R. Everett, Jr., Judge, Davidson Probate # 94P-1247
Kevin S. Terry of Nashville, For Appellant.
Walter L. Olson of Nashville, For Appellee.
VACATED
CONCUR: DAVID R. FARMER, JUDGE, WILLIAM C. KOCH, JR., JUDGE
This appeal involves untangling a web of procedural mistakes in a case which should have been a relatively uncomplicated legal proceeding to legitimate, establish visitation rights, and provide support for a child. On April 8, 1994, Nathan Alexander Heimbach was born to Christine Emelia Heimbach (hereinafter Mother). On August 17, 1994, petitioner, Ralph Everett Vaughn, Jr., (hereinafter Father) filed a petition in the Probate Court of Davidson County for legitimation of the child pursuant to T.C.A. § 36-2-201, et seq. Upon the filing of the petition, the probate court entered an order setting a hearing for September 26, 1994, for Mother to show cause why Father should not be granted immediate visitation with the child.
Prior to the filing of the petition in the probate court, Father had filed a petition for legitimation in the Juvenile Court of Davidson County. On August 17, 1994, the same day which Father filed the legitimation petition in probate, Father filed a motion to nonsuit the juvenile legitimacy proceeding. No order was entered at that time in the juvenile court. On September 26, 1994, the legitimation petition filed in probate was heard by the court, and at that time Mother's lawyer orally moved to dismiss Father's petition on the ground that Father had a petition pending in juvenile court. On September 27, 1994, the probate court entered an order dismissing Father's legitimation petition and awarding Mother a judgment against Father in the sum of $500.00 for attorney fees.
On September 30, 1994, Father, seeking relief from the probate court's order, filed a motion entitled "Motion for Relief from Judgment or to Reconsider," purportedly pursuant to Tenn.R.Civ.P. 60.02. Father's motion was heard by the probate court on December 9, 1994, and on December 13, 1994, the court entered an order denying the motion and held under advisement Mother's request for additional attorney fees incurred as a result of responding to the motion. On January 4, 1995, Mother filed a motion for the court to award additional attorney fees and by order entered January 30, 1995, the court awarded Mother a judgment against Father in the sum of $2,481.25, for additional attorney fees. Father has appealed the rulings of the probate court, and in his brief he presents two issues for review:
Since the motion was filed within 30 days of the entry of the order of dismissal, it obviously cannot be a motion for relief pursuant to Rule 60, Tenn.R.Civ.P., which applies only to final judgments. Regardless of the form of the motion, the substance of the motion, seeks relief pursuant to Rule 59, Tenn.R.Civ.P., and will be so considered by the court.
I. Whether the probate court properly dismissed Father's petition for legitimation due to the fact no order was entered non-suiting Father's pro se petition for legitimation in the juvenile court of Davidson County, Tennessee.
II. Whether the probate court properly awarded attorney's fees to mother.
Father actually seeks no relief in connection with the first issue, and we will only briefly address it. Initially, we will address Mother's assertion that Father's notice of appeal filed on February 24, 1995, was not timely filed under Rule 4(a) of the Tennessee Rules of Appellate Procedure. Mother contends that because Father's notice of appeal was not filed within thirty days of the probate court's September 27, 1994, order dismissing Father's legitimation petition and awarding Mother $500.00 in attorney fees, Father's notice is time barred with respect to those issues.
In August, 1994, Mother filed a petition against Father in juvenile court to establish paternity and acquire child support. On January 4, 1995, an order was entered in juvenile court establishing paternity, awarding support, and setting Father's visitation rights. Although the face of the juvenile court order indicates a possibility that the order was not duly entered as the order of the juvenile court, the parties are treating the order as a lawfully entered order. For the purposes of this appeal this Court will do likewise.
The probate court's order of dismissal was entered on September 27, 1994, and Father's Rule 59 motion was filed on September 30, 1994. The order denying Father's motion was entered on December 13, 1994, but the order held Mother's request for additional attorney fees under advisement. As such, the December 13, 1994 order was not a final order appealable as of right, and therefore, Rule 4(a)'s 30 day limit for filing a notice of appeal is inapplicable to the December 13th order.
The order awarding Mother additional attorney fees was entered on January 30, 1995. This order, unlike the December 13, 1994 order, was a final order not subject to revision; therefore, pursuant to Rule 4(a), notice of appeal from the January 30, 1995 order had to be filed within thirty days of the order's entry. Since Father filed his notice of appeal on February 24, 1995, the notice was timely filed.
With respect to the first issue presented by Father, Father asserts that the probate court erred in dismissing his petition on the ground that a petition was pending in juvenile court. Father argues that there was no pending legitimation proceeding in juvenile court, because that proceeding was properly terminated by nonsuit even though the juvenile court did not enter a formal order of nonsuit on August 17, 1994. Father further argues that even if entry of a formal order of nonsuit was a prerequisite to dismissal of the juvenile legitimacy proceeding and commencement of the legitimacy proceeding in probate, such prerequisite was satisfied, because prior to the probate court's hearing on the rule 59 motion, the juvenile court entered an order of nonsuit nunc pro tunc to August 17, 1994.
Mother, on the other hand, argues that because Father made a written, as opposed to an oral, "motion" to nonsuit, Father was required to enter a formal order of nonsuit with the juvenile court. Mother contends that Father's failure to enter a formal order of nonsuit prevented the legitimation petition filed in juvenile court from being effectively dismissed. Therefore, Mother argues that the filing of the legitimation petition in probate court was "premature and ineffective."
There is no dispute concerning the material facts of this case, and the record reflects by the pleadings and stipulations that Mother's lawyer was in court at the time Father presented the "motion" for nonsuit and the referee's ruling thereon.
Tenn.R.Civ.P. 41.01 provides in pertinent part:
(1) Subject to the provisions of Rule 23.05 or Rule 66 or any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties. . . .
In Rickets v. Sexton, 533 S.W.2d 293 (Tenn. 1976), the plaintiff filed a "Motion for Voluntary Dismissal" which apparently was in the form of an order tendered for the signature of the chancellor. The defendant objected to the dismissal, and the chancellor "disallowed" the nonsuit. In reversing the action of the chancellor, our Supreme Court noted that Tenn.R.Civ.P. 41.01(1) allows the free and unrestricted right of the plaintiff to take a voluntary nonsuit except in certain specified circumstances. Upon considering the scope of a plaintiff's right to take a nonsuit pursuant to Rule 41.01, the Rickets Court held:
The rule specifies that a plaintiff "shall have the right to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause." This portion of the rule is not dependent upon the determination of the trial judge. The lawyer for the plaintiff is the sole judge of the matter and the trial judge has no control over it. It is not necessary that he approve the action of plaintiff's counsel by signing any order; nor may he nullify the rules by an order "disallowing" the nonsuit. All that is required to dismiss prior to the trial, in the absence of the existence of any of the exceptions above noted, is the filing of a written notice of dismissal.
533 S.W.2d at 294 (emphasis supplied).
The Rickets Court also held that plaintiff's writing styled "Motion for Voluntary Dismissal" was in substantial compliance with the rules and constituted a "written notice of dismissal." Id. at 294.
Subsequently, in Evans v. Perkey, 647 S.W.2d 636 (Tenn. App. 1982), the Eastern Section of this Court dealt with a statute of limitations question on a previously nonsuited case and concluded that "the one-year statute of limitations [for purposes of the Tennessee Savings Statute, T.C.A. § 28-1-105 (Supp. 1994)] ran from the date of the entry of the order of the court and not from the date of filing of the notice of nonsuit."
Applying Rickets to the case sub judice, we conclude that father's written "motion" to nonsuit substantially complied with Rule 41.01, Tenn.R.Civ.P., and constituted a "written notice of dismissal." As such, no formal order of nonsuit was required to be entered by Father's lawyer to effectively dismiss the legitimation petition filed in juvenile court. The petition was effectively dismissed when counsel for Father provided a written notice of dismissal to the juvenile court. Furthermore, neither the notice of nonsuit, nor the entry of the nunc pro tunc order prior to the probate court's ruling on the Rule 59 motion, prejudiced any vested rights of Mother. Therefore, the probate court erred in dismissing Father's petition for legitimation.
As previously noted, however, Father actually seeks no relief from the dismissal of the legitimation petition, because the child's status and the support and visitation rights have already been adjudicated in the juvenile court pursuant to Mother's petition. Father is really contesting the probate court's award of attorney fees to Mother in connection with the dismissed petition.
Apparently Mother contends that she is entitled to the initial award of attorney fees, because she was acting on behalf of the child. Mother also asserts that she is entitled to the additional award of attorney fees, because a Davidson County local rule of court requires a court to grant the motion of a party when no response to a motion is filed. Mother argues that she is entitled to the additional attorney fees because she filed a motion for such fees to which Father failed to respond; therefore, it was proper for the probate court to grant her motion for additional attorney fees.
That is, the award of $500 by order of the probate court on September 27, 1994.
The Davidson County Local Rules of Practice, section 12.04(e) provides, "IF NO RESPONSE [to a motion] IS TIMELY FILED AND SERVED . . . THE MOTION SHALL BE GRANTED . . . ." (emphasis in original).
In the absence of a statute, contract, or recognized ground of equity providing for recovery of attorney fees, there is no right to have attorney fees paid by an opposing party in civil litigation. State ex rel. Orr v. Thomas, 585 S.W.2d 606, 607 (Tenn. 1979).
In the instant case, the legitimation statute, T.C.A. § 36-2-201, et. seq, makes no provision for recovery of attorney fees, and obviously there is no contract which makes such a provision. Normally, equity demands that the rights of children be preserved, and attorney fees are often awarded to a party when such award will enure to the benefit of a child. As stated above, Mother claims that she is entitled to the initial award of fees because she was acting on behalf of the child. Although Mother was the party awarded attorney fees, it was actually Father's legitimation petition which would enure to the benefit of the child. Mother's defense of the suit could arguably be considered detrimental to the interests of the child, especially if the defense resulted in a denial of legitimacy. Under the circumstances, we do not feel that this case presents a recognized ground of equity which would authorize an award of fees.
We must also disagree with Mother's contention that the award of additional attorney fees was proper because Father failed to respond to her motion for such fees as required by § 12.04(e) of the Davidson County Local Rules of Practice. It is well settled that the trial courts of this State have the authority to make and implement reasonable local rules of practice and procedure in their respective courts, as long as these local rules do not conflict with a substantive rule of State law. Richie v. Liberty Cash Grocers, Inc. 471 S.W.2d 559, 560 (Tenn.App. 1971); Brown v. Daly, 884 S.W.2d 121, 123 (Tenn.App. 1994); Pettus v. Hurst, 882 S.W.2d 783, 786 (Tenn.App. 1993). "[N]o rule of court is ever effective to abrogate or modify a substantive rule of law." Brown, 884 S.W.2d at 123. (quoting Craven v. Dunlap, No. 02A01-9202-CH-00027, 1993 WL 137584 (Tenn.App. May 3, 1993)).
In the instant case, to allow Mother to recover attorney fees pursuant to § 12.04(e) of the Davidson County Local Rules of Practice would result in a conflict with the substantive law of this State which provides that attorney fees are recoverable only when a statute, rule, contract, or recognized ground of equity provide for their recovery. State ex rel Orr v. Thomas, 585 S.W.2d 606, 607 (Tenn. 1979). Even if we were to consider Mother's motion as made pursuant to Tenn.R.Civ.P. 11 for sanctions, Father's inconsequential mistake in proceeding pursuant to Tenn.R.Civ.P. 60.02 instead of Rule 59 is not sanctionable under the rule. Since there is no statute, rule, contract, or ground of equity which provides for the recovery of attorney fees, we conclude that the probate court's award of attorney fees to Mother was error.
Accordingly, the judgments of the trial court awarding attorney fees are vacated. Costs of the appeal are assessed against the appellee.
____________________________________ W. FRANK CRAWFORD, JUDGE
CONCUR:
________________________________ DAVID R. FARMER, JUDGE
_________________________________ WILLIAM C. KOCH, JR., JUDGE