Murray Owen Wilhoite, Jr. v. Brenda Ruth Wilhoite

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 22, 2016 Session

MURRAY OWEN WILHOITE, JR. v. BRENDA RUTH WILHOITE, ET

AL.

Appeal from the Chancery Court for Williamson County

No. 44827 Joseph A. Woodruff, Chancellor

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No. M2016-00848-COA-R3-CV – Filed September 30, 2016

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Husband filed a breach of contract action against his Wife while their divorce was

pending. When the parties settled the divorce, Husband voluntarily dismissed his breach

of contract action. Husband later filed a motion to reinstate his breach of contract action

against Wife, which the trial court denied. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which W. NEAL

MCBRAYER and BRANDON O. GIBSON, JJ., joined.

Murray Owen Wilhoite, Jr., Nashville, Tennessee, Pro Se.

Joseph P. Rusnak, Nashville, Tennessee, for the appellee, Brenda Ruth Wilhoite.

John M. Milazo, Franklin, Tennessee, Pro Se1

MEMORANDUM OPINION2

1

Mr. Milazo did not file a brief to this Court. Instead, he filed a notification that he joined in

Wife’s brief.

2

Rule 10 of the Rules of the Court of Appeals of Tennessee 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 AMEMORANDUM OPINION@,

shall not be published, and shall not be cited or relied on for any reason in any

unrelated case.

Background

The underlying dispute began with a divorce action filed by Defendant/Appellee

Brenda Ruth Wilhoite (“Wife”) against Plaintiff/Appellant Murray Owen Wilhoite, Jr.,

(“Husband”) in Williamson County Chancery Court on May 4, 2011 (“divorce action”).

On February 8, 2013, Wife filed a petition for relief under Chapter 13 of the Bankruptcy

Code in the United States Bankruptcy Court for the Middle District of Tennessee

(“bankruptcy case”). Pursuant to bankruptcy law, a bankruptcy petition typically stays

any action against the debtor or property belonging to the debtor or the bankruptcy estate.

See Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 695 (Tenn. 2011) (noting that there

are “narrowly defined exceptions”) (citing 11 U.S.C. § 362). On January 11, 2016,

Husband filed a breach of contract action (“breach of contract action”) against Wife and

John M. Milazo, Wife’s divorce counsel, also in Williamson County Chancery Court. In

addition to breach of contract, the complaint alleged causes of action of conversion,

intentional misrepresentation, breach of fiduciary duty, and tortious interference. The

complaint sought compensatory damages of $2,433,000.00.

Although the divorce complaint had been pending for nearly four years, a flurry of

activity occurred on February 8, 2016, ultimately resulting in this appeal. First, mediation

between Husband and Wife in the divorce action was held on February 8, 2016. At the

time of the mediation, both the divorce and the breach of contract actions described

above were pending in chancery court. On the same day, mediation produced a proposed

settlement, including an agreement to waive and release all claims against the other party

existing as of February 8, 2016 (“mediated agreement”). The parties apparently

immediately presented their mediated agreement to Chancellor Michael Binkley on the

afternoon of February 8, 2016. As a result, Chancellor Binkley entered a final decree of

divorce incorporating the parties’ mediated agreement into a marital dissolution

agreement (“MDA”) on the afternoon of February 8, 2016. An agreed order of dismissal

of the breach of contract action was also filed on the same day, dismissing the breach of

contract action with prejudice. Thus, on February 8, 2016, all the disputes between the

parties in Williamson County Chancery Court had been resolved by order of the court.

Meanwhile, on the same day, before the mediation had been completed or any

order entered as a result, Wife’s bankruptcy counsel (“bankruptcy counsel”) purportedly

filed an adversary proceeding against Husband in the bankruptcy case for damages and

attorney’s fees, alleging that Husband willfully violated the automatic stay by filing the

breach of contract action against Wife.3 Apparently, bankruptcy counsel was unaware

that the parties had reached agreements in both the divorce action and the breach of

contract action on the same day an adversary proceeding was filed against Husband. At

3

We take these allegations from the parties’ briefs, as the bankruptcy complaint against Husband

is not contained in the record on appeal.

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oral argument, however, the parties stipulated that the adversary proceeding was

ultimately dismissed.

On March 8, 2016, Husband filed a motion under Rule 60.02 of the Tennessee

Rules of Civil Procedure to void the agreed order of dismissal and to reinstate his breach

of contract action. Specifically, Husband alleged that Wife and Mr. Milazo “fraudulently

misrepresent[ed] the purpose and intent of a settlement agreement to cease and dispense

with all litigation” by not disclosing that bankruptcy counsel was filing an adversary

proceeding against him on that same day. Husband further alleged that although the total

marital property was valued at $2,250,000.00 after forty-five years of marriage, he

received a mere $46,000.00, a distribution that was not “[f]air and [e]quitable” as

erroneously found by Chancellor Binkley. As evidenced by the argument above,

Husband’s motion took issue with events in the divorce action, despite the fact that the

motion was only filed in the breach of contract action. Husband asserted that two separate

motions for disqualification were pending before Chancellor Binkley at the time the order

was entered dismissing the breach of contract action. Husband, therefore, asserted that it

was improper for Chancellor Binkley to sign the order of dismissal. Husband’s March 8,

2016 motion was set for hearing on April 1, 2016.

On May 24, 2016, Chancellor Joseph A. Woodruff (“trial court”) entered an order

vacating the hearing set for Husband’s motion and denying relief under Rule 60.02. The

trial court found that the motion was without merit because it was “unverified and

unsupported with any evidentiary material” as required by the Williamson County Local

Rules. The trial court further found that “even if [it] were to consider the unsworn

averments in [Husband]’s motion on their merits, [the trial c]ourt does not find that

[Husband] has made a prima[ facie] showing of facts sufficient to state a claim that the

February 8, 2016 order of voluntary dismissal was procured by fraud or misconduct by

[Wife and Mr. Milazo].” Husband timely appealed.

Issues

Husband raises four issues on appeal, which we have taken, and slightly restated,

from his brief:

1. Whether the trial court violated the civil rights of the Husband (right

to self-representation, right to be heard before an unbiased tribunal, right to

procedural due process, right to be secured from unreasonable search and

seizure)?

2. Did Chancellor Binkley abuse his discretion by ruling on a case

before and while a timely filed Motion of Disqualification stood

unanswered before the Judge?

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3. Did Chancellor Binkley err by signing an order of dismissal

purporting to include the dismissal of a case filed and entered in the

Bankruptcy Court for the Middle District of Tennessee?

4. Did Chancellor Binkley abuse his discretion by finding the MDA to

be “Fair and Equitable”?

Discussion

As an initial matter, we note that Husband appears before this Court pro se, as he

did in the trial court. It is well-settled that pro se litigants must comply with the same

standards to which lawyers must adhere. Watson v. City of Jackson, 448 S.W.3d 919,

926 (Tenn. Ct. App. 2014). As explained by this Court:

Parties who decide to represent themselves are entitled to fair and equal

treatment by the courts. The courts should take into account that many pro

se litigants have no legal training and little familiarity with the judicial

system. However, the courts must also be mindful of the boundary between

fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.

Thus, the courts must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected

to observe.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn.

Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.

App. 2003)). We keep these principles in mind in considering this appeal, specifically

with regard to the deficiencies in Husband’s appellate brief.

Rule 27(a) of the Tennessee Rules of Appellate Procedure outlines the

requirements for briefs filed by appellants in Tennessee appellate courts. Husband’s brief

complies with Rule 27(a) in most respects save one: his brief contains no citation to the

appellate record. Pursuant to Rule 27(a), both an appellant’s statement of facts and

argument sections must contain appropriate references to the appellate record:

(a) Brief of the Appellant. The brief of the appellant shall contain under

appropriate headings and in the order here indicated:

* * *

(6) A statement of facts, setting forth the facts relevant to the issues

presented for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument,

setting forth:

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(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 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)[.]

Tenn. R. App. P. 27(a). As previously discussed, pro se parties are not excused from

complying with the Tennessee Rules of Appellate Procedure. See Jackson, 2011 WL

3566978, at *3. We note, however, that Husband substantially complied with the

requirements of Rule 27(a). Furthermore, the entire record on appeal consists of only

thirty-five pages of technical record. Because Husband’s failure to comply with Rule

27(a) places only a minimal burden on this Court and his opponent, we will exercise our

discretion to consider the merits of his case despite the deficiencies in Husband’s

appellate brief. See Tenn. R. App. P. 2 (allowing this Court to suspend the Tennessee

Rules of Appellate Procedure “[f]or good cause”).

As we perceive it, Husband’s first issue concerns the trial court’s decision to

dismiss his motion to void judgment without a hearing, which he argues denied him of

basic constitutional rights. Here, the trial court dismissed Husband’s motion because it

failed to comply with Williamson County Local Rules pertinent to applications for

extraordinary relief.4 Motions pursuant to Rule 60.02 of the Tennessee Rules of Civil

Procedure are generally cited as the basis for requests for extraordinary relief. See, e.g.,

Tomlin v. Baxter, No. M2014-01746-COA-R3-CV, 2015 WL 7749064, at *7 (Tenn. Ct.

App. Nov. 30, 2015) (referring to motions pursuant to Rule 60.02 as “the motion for

extraordinary relief”). Indeed, Husband cites Rule 60.02 as the basis for his motion.

Tennessee courts judge motions, however, “by their substance rather than their form.”

Discover Bank v. Morgan, 363 S.W.3d 479, 491 n.20 (Tenn. 2012) (citing Tenn.

Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998); Bemis Co. v.

Hines, 585 S.W.2d 574, 575–76 (Tenn. 1979)). Here, Husband filed his motion on March

8, 2016, to set aside the trial court’s order, less than thirty days after it was entered on

February 8, 2016. Accordingly, Husband’s motion was properly brought under Rule

59.04,5 rather than Rule 60.02.6 See Discover Bank v. Morgan, 363 S.W.3d 479, 489

4

Local Rule 5.03(a), in relevant part, provides that “[a]ll motions . . . together with all affidavits,

sworn income and expense statements, depositions, briefs and other matters presented in support of the

motion, must be filed and served by personal delivery at least fourteen (14) days prior to the date set for

the hearing on the motion.” Local Rule 15.02 provides that “applications for . . . extraordinary

interlocutory relief shall be heard upon sworn pleadings or affidavit and/or deposition unless a party, prior

to the time of the hearing, requests and obtains permission of the court for the introduction of oral

testimony . . . .”

5

Rule 59.04 provides that “[a] motion to alter or amend a judgment shall be filed and served

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(Tenn. 2012) (characterizing a Rule 60.02 motion as one where a party “seek[s] relief . . .

more than thirty days after entry of a final judgment”); Campbell v. Archer, 555 S.W.2d

110, 112 (Tenn. 1977) (“The function of [Rule 60] is to give relief from final judgments;

Rule 59 . . . is the appropriate remedy for asserting alleged errors affecting a judgment

which has not yet become final.”); Stricklin v. Stricklin, 490 S.W.3d 8, 18 (Tenn. Ct.

App. 2015) (“Because [father’s] motion was filed within thirty days from the entry of the

. . . order, we regard his motion as a request for relief under Rule 59.”) (citing Campbell,

555 S.W.2d at 112); see also Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App.

2008) (“Rule 60.02 affords a party a means to seek relief from a final, non-appealable

judgment.”). But see Smith v. Haley, No. E2000-001203-COA-R3-CV, 2001 WL

208515, at *5 (Tenn. Ct. App. Mar. 2, 2001) (“[Rule 59.04] applies to final judgments.”).

As previously discussed, the Local Rule cited by the trial court as a basis for dismissal

applies only to extraordinary relief. While Rule 60.02 motions are frequently

characterized as seeking extraordinary relief, our research has revealed no cases in which

a Rule 59.04 motion was described as extraordinary. As such, the Local Rules are not a

sufficient justification for dismissal of Husband’s Rule 59.04 motion.

Typically, our determination that the trial court applied an incorrect standard in

dismissing Husband’s motion would lead us to vacate the trial court’s judgment and

remand for reconsideration under the appropriate standard. Our inquiry does not end in

this case, however, because the trial court posited an alternative basis for the motion’s

dismissal. According to the trial court, even if it were to consider the merits of Husband’s

motion, Husband failed to make a prima facie showing of facts to state a claim that the

agreed order of dismissal entered into by Husband and Wife pursuant to the mediated

agreement was procured by fraud. On appeal, rather than addressing the merits of the trial

within thirty (30) days after the entry of the judgment.”

6

Rule 60.02 provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve

a party or the party’s legal representative from a final judgment, order or

proceeding for the following reasons: (1) mistake, inadvertence, surprise

or excusable neglect; (2) fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other misconduct of an adverse party;

(3) the judgment is void; (4) the judgment has been satisfied, released or

discharged, or a prior judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that a judgment should

have prospective application; or (5) any other reason justifying relief

from the operation of the judgment. The motion shall be made within a

reasonable time, and for reasons (1) and (2) not more than one year after

the judgment, order or proceeding was entered or taken. A motion under

this Rule 60.02 does not affect the finality of a judgment or suspend its

operation, but the court may enter an order suspending the operation of

the judgment upon such terms as to bond and notice as to it shall seem

proper pending the hearing of such motion.

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court’s order, Husband’s sole argument regarding the trial court’s order was whether he

was entitled to a hearing prior to his motion’s adjudication. It is well-settled, however,

that “[p]arties are not necessarily entitled to present oral argument regarding their [Rule]

59 motions.” Savage v. Hildenbrandt, No. M1999-00630-COA-R3-CV, 2001 WL

1013056, at *15 (Tenn. Ct. App. Sept. 6, 2001); see also Custom Built Homes v. G.S.

Hinsen Co., No. 01A01-9511-CV-00513, 1998 WL 960287, at *5 (Tenn. Ct. App. Feb.

6, 1998) (“The Tennessee Rules of Civil Procedure do not give litigants a right to insist

on oral argument prior to the submission and determination of motions. . . . [O]ral

argument in most cases serves mainly to restate points already made in [a properly

prepared] motion and supporting memorandum of law.”). The trial court’s failure to

provide Husband a hearing on his motion, standing alone, is therefore not a basis to

reverse or vacate the trial court’s denial of his motion to void judgment.

Husband next argues that his constitutional due process rights were violated when

Chancellor Binkley proceeded to rule on his case despite two pending motions to recuse.

Judicial recusal is governed by Tennessee Supreme Court Rule 10B. Section 1.02 of Rule

10B provides that, “[w]hile the [recusal] motion is pending, the judge whose

disqualification is sought shall make no further orders and take no further action on the

case, except for good cause stated in the order in which such action is taken.”

Accordingly, we agree with Husband that it is generally inappropriate for a trial court to

rule on the merits of a case while a recusal motion is pending. See Carney v. Santander

Consumer USA, No. M2010-01401-COA-R3-CV, 2015 WL 3407256, at *7 (Tenn. Ct.

App. May 28, 2015) (vacating the trial court’s order because it was entered while a

recusal motion was pending); Rodgers v. Sallee, No. E2013-02067-COA-R3-CV, 2015

WL 636740 (Tenn. Ct. App. Feb. 13, 2015) (same). But see Conservatorship of Tate, No.

M2012-01918-COA-10B-CV, 2012 WL 4086159 (Tenn. Ct. App. Sept. 17, 2012)

(declining to vacate an order entered while a recusal motion was pending because the trial

court ultimately correctly denied the motion to recuse).

In this case, however, there is simply no support in the appellate record that

Husband ever filed a motion to recuse Chancellor Binkley. As previously discussed, the

sparse appellate record in this case consists of only thirty-five pages of technical record,

none of which contains any motions for disqualification. Husband, as the appellant, had

the duty of preparing a complete record for this court to provide a meaningful review of

the issues. Tenn. R. App. P. 24(b) (“[T]he appellant shall have prepared a transcript of

such part of the evidence or proceedings as is necessary to convey a fair, accurate and

complete account of what transpired with respect to those issues that are the bases of

appeal.”); see also McAllister v. Rash, No. E2014-01283-COA-R3-CV, 2015 WL

3533679 at *8 (Tenn. Ct. App. June 5, 2015), perm. app. denied (Tenn. Oct. 16, 2015);

(“It is well-settled that it is the appellant’s duty to prepare a record for our review that

includes everything contained in the trial court record that is necessary for our

examination of the issues presented on appeal.”). “Where the record is incomplete and

does not contain a transcript of the proceedings relevant to an issue presented for review,

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or portions of the record upon which the party relies, an appellate court is precluded from

considering the issue.” State v. Ballard, 855 S.W.2d 557, 560–61 (Tenn. 1993). Because

no recusal motions are contained in the record on appeal, we cannot conclude that

Chancellor Binkley erred in ruling on the merits of the case while recusal motions were

pending.

Husband next asserts that Chancellor Binkley erred by signing an order that

purported to dismiss the adversary proceeding. Husband, however, failed to address this

argument in any fashion in the argument section of his appellate brief. “[A]n issue is

waived where it is simply raised without any argument regarding its merits.” Bean v.

Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000) (citing Blair v. Badenhope, 940 S.W.2d

575, 576–577 (Tenn. Ct. App. 1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86

(Tenn. Ct. App. 1988)). “This Court is under no duty to verify unsupported allegations in

a party’s brief, or for that matter[,] consider issues raised but not argued in the brief.” Id.

This issue is therefore waived. Furthermore, the agreed order of dismissal of Husband’s

breach of contract action does not dismiss the adversary proceeding as Husband claims.

The order at issue only contains the following language:

It appearing to the [c]ourt that the parties are in agreement, as evidenced by

the signatures of the parties and Counsel below, it shall be the Order of this

[c]ourt that this [breach of contract] matter is dismissed with prejudice. It is

further the Order of this [c]ourt that any unpaid court costs shall be taxed

jointly and severally to [Wife and Wife’s counsel].

Lastly, Husband asserts that Chancellor Binkley “abuse[d his] discretion by

finding [that] the [MDA was] [f]air and [e]quitable.” Husband’s argument is misplaced.

Husband filed his motion to void judgment in the breach of contract action rather than the

divorce. Any challenge to the divorce action order, which was a final judgment in the

divorce proceedings, should have been brought by direct appeal. If Husband asserts that

fraud or some other cause exists for setting aside the divorce decree, a Rule 60 motion

filed in that case would be the proper action. See generally Tenn. R. Civ. P. 60.02. This

appeal was taken from the breach of contract proceeding, which was a separate

proceeding. See In re Jimmy B., No. E2015-02070-COA-R3-PT, 2016 WL 2859180, at

*6 (Tenn. Ct. App. May 11, 2016) (declining to entertain father’s collateral attack of the

juvenile court’s dependency and neglect order in the termination of father’s parental

rights proceeding because they are “separate proceeding[s]”). Accordingly, Husband

cannot collaterally attack the final divorce order on this appeal.7 Husband’s argument is,

respectfully, without merit.

7

We also note, that even if we were to entertain Husband’s collateral attack of the final divorce

decree, Husband has failed to provide this Court with an appropriate record from which to review this

issue. Indeed, although Husband takes issue with the final divorce decree, this document is not contained

in the record on appeal. While Wife has attached what purports to be the final decree as an exhibit to her

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Conclusion

The judgment of the Williamson County Chancery Court is affirmed. Costs of this

appeal are taxed to Appellant, Murray Owen Wilhoite, Jr., and his surety, for which

execution may issue if necessary.

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J. STEVEN STAFFORD, JUDGE

brief, we may not consider documents merely attached to briefs that were not properly made a part of the

record in the trial court or supplemented on appeal. See Carney v. State, No. M2006-01740-CCA-R3-CO,

2007 WL 3038011, at *4 (Tenn. Crim. App. Oct. 17, 2007) (stating that “documents attached to an

appellate brief but not included in the record on appeal cannot be considered by this court as part of the

record on appeal”) (internal citation omitted); Forrest v. Rees, No. 01C01-9411-CC-00387, 1996 WL

571765, at *3 (Tenn. Crim. App. Oct. 8, 1996) (stating that “attachments to briefs are not evidence and

will not be considered by the appellate courts”); Pinney v. Tarpley, 686 S.W.2d 574, 579 (Tenn. Ct. App.

1984) (stating that “[m]erely attaching a document to a pleading does not place that document in

evidence”).

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