### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE On-Briefs Dec

ember 29, 2000 WAYFORD DEMONBREUN, JR. v. DENNIS J. HUGHES, ET AL 

### . A Direct Appeal from the Circuit Court for Davidson County No. 98C-26 The Honorable Hamilton V. Gayden, Jr., judge

No. M2000-01116-COA-R3-CV - Filed January 30, 2001

Pl ainti ff, inmate acting pro se, sued two former attorneys alleg ing that after the first attorney was removedfrom his criminal case and ordered to re fund partof the retainer fee paid, the second attorney was appointed to re presen t plaintiff. Subsequently, the second attorney, without authorization, compromised andsettled plaintiff’ s claim against th e first attorney and converted the proceeds of the settlement to his own use. The first attorney was never served with process, and the trial court granted summary judgment to the second attorney . Plaintiff has appealed. Tenn.R.App.P. 3; Appe al as of Right; Judgme

nt of the Circuit C

ourt Affirmed and Remanded
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. HIGHERS , J. and D AVID R. F ARMER , J., joined. Wayford Demonbr

eun, Pro Se F. Michie Gibson, Jr

., Pro Se OPINION
On January 6, 1998, plaintiff, Wayford Demonbr eun, filed a compl

aint against defe

ndants, Dennis J. Hughes and F. Michie Gibson, Jr., seeking recovery for alleged legal malpractice and conversion of property and fraud. The compl aint a lleges that plaintiff had retained defendant Hughes to represent him

in defense of sev

eral criminal ac

tions in Davidson County and that Hughes was paid a fee in the a

mount of $32,000.00

for services to

be rendered. The complaint avers that on or about September 26, 1995, during the course of one of the trials, evidence was introduced that Hughes had engaged in the illegal act of bribing a prosecution witness, and on that date the criminal court judge discharged Hughes from further involvement in the case and ordered Hughes to refund the legal fees paid by plaintiff within 60 days. The complaint further avers that on September 26, 1995, the criminal court jud ge appointed def

endant Gibson to re

present the plain

tiff in the criminal proceeding. The

complaint further

alleges:-2- 7. Thereafter, defend ant Gibson without the consent, authorization or approval of plain

tiff and without pla

int iff employing or agreeing to the employment of d

efendant Gibson i

n the matt

er reg arding the return of his legal fees f rom def endant Hughes, f

raudulently misrepresented

himself as counsel for plaintiff in the ret urn of the l egal fee s ordered to [be] repaid by the Criminal Court on or about September

26, 1995, and fraudulently entered into an agreemen

t with defendant Hughes to

settle the return of the legal fees ordered by the Courtand did obtain and u nlawfully conver

t for his personal

use property belonging to the pla

intiff, without plai

ntiff’s consent, authorization or

approval.
8. Thereafter, defendant Gibson w it hout the authorization of the plaintiff and fr a udulently, did obtain legal fees from the defendant Hughes as a settlement and converted said fees for his own us e without plaintiff’s consent, approval or authorization. Plaintiff avers that

by virtue of the refusal of Hughes and Gibson to return plaintiff’slegal fees, he was deprived of the opportunity to employ counsel of his choice, thus

interfering with

his SixthAmendment right to cou nsel of his choice. The complaint demands judgment against each defendant in the amount of $32,000.00.
Defendan tGibson was duly served with process, but a “not to be found” return was mad e on the summons issued

to Hughes. No alia

s summons was issued t

o this defendant. Gibso n’s answer to the complaint denies the material allegations thereof. Subsequen tly , Gibson filed a motio

n for summary judgm

ent and attached

as exhibits the foll

owing: (1) Order of the Crimi

nal Court of Davids

on County, Tennesse

e, in cause n umber 95-B1131, State of Tenn

essee vs.Wayfo

rd Demonbreun, w

hich states as foll

ows: On September 26, 1995, during a trial in this case, proof was introduced that one of the vic tims had been offe

red a bribe to

change her testimony and strongly suggesting that the Defendant’s attorney, Mr. Dennis Hughes, was at least aware of the attempt t o suborn perjury. All of the surrounding circumstances will appear on the record but in summary, this court was of the opinion that if Mr. Hughes was involved, he c ould not con tinue to represent the Defendant

and if he was not, h

is position would be hos

tile to that of his client. Accordingly the Court relieved Mr. Hughs and appointed Mr. Michie Gibson to represent the Defendant. The Defendant stated tha the had paid Mr. Hughes $35,000.00. The court ordered Mr

. Hughes to refund the fee within 60 days. Mr. Hughes didnot make any refund and a petitionfor contempt was file d and a hearing he

ld-3- thereon on December 18, 1995. At t

hat hearing the Court heard testimony from the Defendant Demonbreun, members of his family and Mr. Hughes from

which it appeared that in fact Mr. Hughes had been paid $31,400 by the Defendant and his family but that $10,000 of that amount was for

fees in two other c

ases and th at Mr. Hu ghes had earned $7,500.00 in this case. This court therefore ordered Mr. Hugh es to refund $13,900 u nearned fee to

the Defendant.

As n o hearing had been held

to ascertain what amount should be refunded, it was the court’s opinion that a finding of contempt was not justified. The defendant has filed another petition for contempt, but the clerk did not tell this cour

t it had been f

iled, did not obtain the signature of a j u dge to the fiat and did not cause Mr. Hughes to be served. More importantly, the Court Cl erk neglected to place the order of December 18, 1995 on the Court’s minutes

. Since the Court speaks through its minutes, the December 18 order is not operative.
IT IS THEREFORE OR DER ED nunc pro tunc that Mr. Dennis Hughes refund $13,900.00 to Wayfor d De monbreun within thirty (30) days of the entry of this order on the Court’s minutes. It is further ORDERED that the clerk of the Criminal Court immedia tely place this order on the Court’s Minutes. It is furt he r ORDERED that in the event that sum is not paid in to the clerk of the court within 30 days of the

entr y of this order, process be issued by the clerk compelling Dennis Hughes to appear before t his cou rt within 5 days to show caus

e why he should not be held in civil contempt of this court for refusal to obey this order. (2) a paper style

d “Employment of Con

tract and Assignme

nt” which states a

s follows: I, Wayford Demonb reun , in consideration of legal services rendered to me by F. Michie Gibso n, Jr., in the criminal indictment now pending against me

in Davidson County, T

ennessee and my

post conviction rel ief

action against De

nnis Hughes, do her

eby agree to pa y to F. Michie Gibson, Jr., the sum of fifteen Thousand ($15,000.00) Doll

ars as follows: The sum of Two Thousand ($ 2,000.00) Dollars will be paid on or before February 25, 1996; and The balance of Thirteen Thousand ($13,000.00) Dollars will be paid on or before April 1, 1996.-4- I, Wayford Demonbreun, further assign all rights and interest tha tI have in the judgme nt against Dennis H

ughes in the Crimi

na l Courtfor Davidson County, Te nnessee Division I under docket number 94-B-11 31 to F. Michie Gibson, Jr. to be applied to the balance of this c

ontract. It is understood that this is a non-refundable retainer fee.
I furthe r agre e that if collecti on of the above am

ount is necessary, I will be responsib le for the costs of

said collect,

including attorney’s fee, Court costs and other costs of litigation. Signed this 20th day of February, 1996.

___________________________________ /s/ Wayford Demonbreun (3) An undated letter from plaintiff to defendant Gibs on concerning the making of fee arrangements w

ith plaintiff’s unc

le and a discussion

of efforts in

handling of

the cases; (4) a copy of NationsBank cashier’s check dated February 22, 1996 in the amount of $2,000 .00 payable to Mitch Gibson and showing the remittitur as Sonya Bell; (5) a copy of a letter dated March 12, 1996 from defendant G

ibson to plaintiff a

s follows: March 12, 1996

Mr. Wayford Demonbreun #245840 T.C.I.P. Unit 4-A Route 1, Turney Center Only, Tennessee 37140-9709 Re: State of Tennessee vs. Wayford Demonbreun Number: 95-B-1131 Dear Wayford:
As discussed at our

meeti ng the other day, I have entered a Motion to show that the judgment placed a gainst attorney Dennis Hughes has been satisfied. Also, I stated that I would forgive the balance of the a

mount owed to me in ou

r contract. I look forward to

working with

you in your defense and

will be coming to see you again as soon as possible.-5- Sincerely, F. Michie Gibson, Jr. (4) A copy of an order of compromise and settlement entered in the Crimina l Court for Davidson County, Tennessee in ca use number 94-B-1131, State of Tennessee vs. Wayford Demonbreun as fo

llows: This cause came to be

heard on March 22, 1996 on Motion of the Defendant to enter an

Order of Compromise and Settlement of the civil judgmentplaced against attorney Dennis Hughes on December 18, 1996 by this Honorable Court. The Court finds that th e Defendant’s Mot

ion is well taken as

follows:
1. That attorney Dennis Hughes has tendered to Wayford Demonbreun ’s att orney, F. Michie Gi bson, Jr., funds suf

ficient to satisfy the judgment entered against him on December 18 , 1 995 by this Honorable Cour

t. 2. That attorney Dennis Hughes appeal of the j udgment entered against him on December 18, 1995 is dismissed. IT IS, THEREFORE, ORDERED, ENTERED this 25th day of March, 1996. (5) A copy of a hand-writte n letter from plai

ntiff to “Mr. Gibso

n” which is mostly ille

gible butappears to be irr

elevant to the issu

es b efore us; (8 ) an order entered October 6, 1997, in the Criminal Court of Davidson Count y, cause number 94-B-1131, State of Tennessee vs. Wayford Demonbreun, relieving defendant Gibson as attorney of record for defendant in that case. Gibson a lso f

iled an affidavit in support of the motion that the statements and allegations were true and accurate to the best of his knowledge, information, and belief. Plaintiff filed a sworn res po nse to the motion for summary judgment in which he states defendan tGibson misrepresented himself by procuring the plaintiff’s retainer fee. He states that Gibson “took the initiative to become mediator in the interest of the fee w hich was order ed to be refunded back to plaintiff from Dennis Hughes, which was $13,900.00.” He states that defendant Gibson was appointed to represent him pursuant to Supreme Court Rule 13, and he had no authority to deal with plaintiff’s property. From the order granting summary judgment, plaintiff has appealed an

d presents six

issues for review. However, we perceive the determ inative issue t o be whether the t rial court erre

d in granting summary ju

dgment to defenda

nt.-6-

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 5 6.04. The party mov ing for summary jud

gment b ears th e burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in f

avor of the nonmo

ving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Onc e i t is shown by the moving party that there is no genuine issue of material fact, the nonmoving party mus t then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06] provide s that the nonmoving pa rty cannot simply re

ly upon his pleadings but must set forth specific facts showing that there

is a genuine issue of ma

terial fact for

trial. Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bo ttoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgmen t is de novo on the record before this Court. Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).
In the instant case, plaintiff d oes not deny that he

signed an assignme

nt of his claim agai

nst Hughes, but he does state in response to the motion for summary judgment that at all times defendant Gibson was appointed counsel pur suant to Sup reme Court Rule 13. The record reflects that defendant Gibson did rec eive f

unds from defendant Hughes by virtue of the compromise and settlement

which was approved by order of the criminal court. The criminal court had supervision of the criminal case

which brought about the events leading to the fee controversy and the entry of the order approving the compromise settlement of the Hughes fee matter implicitly recognized that defendant Gibson was not acting as appointed counsel for that particular trial of the plaintiff. Accordingly, the order of the trial court granting summary judgment to defend ant Gibson is affirmed, and the case is remanded to the trial court for such further proceedi ngs as may b e necessary. The dismissal of the case as to defendant Hughes is also affirmed for lack of prosecution and lack of service

of process. Cost

s of the appe al are assessed against appellant, Wayford Demonbreun, and his surety.

__________________________________________ W. FRANK CRAWFORD, PRESIDING JU DGE, W.S

.