IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 24, 2012 Session

PATRICIA ANN GHO MASSEY v. GREGORY JOEL CASALS

Direct Appeal from the Juvenile Court for Shelby County

No. F7887 Dan Michael, Special Judge

No. W2011-02350-COA-R3-JV - Filed December 26, 2012

Father’s individual retirement accounts (“IRAs”) were garnished to satisfy an award of

attorney’s fees, and he filed a motion to quash the garnishment, claiming that the accounts

were exempt from garnishment under Tennessee law. In a previous appeal, this Court

concluded that the IRAs were exempt property, and we reversed the trial court’s order

dismissing Father’s motion to quash the garnishment. On remand, the trial court vacated its

previous order but again dismissed Father’s motion to quash. We reverse and remand with

instructions for the trial court to grant Father’s motion to quash and to dissolve the writ of

garnishment.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed

and Remanded

ALAN E. HIGHERS, P.J., delivered the opinion of the Court, in which HOLLY M. KIRBY,J., and

J. STEVEN STAFFORD, J., joined.

Linda J. Casals, Las Vegas, Nevada, for the appellant, Gregory Joel Casals

Rachael Emily Putnam, Memphis, Tennessee, for the appellee, Patricia Ann Gho Massey
OPINION

I. FACTS & PROCEDURAL HISTORY

This appeal is yet another chapter in the continuing saga of litigation between Patricia

Ann Gho Massey (“Mother”) and Gregory Joel Casals (“Father”). The parties have a child

who was born in 1994. In July 2008, the Shelby County Juvenile Court entered an order

modifying Father’s child support obligation, and it also ordered him to pay Mother’s

attorney’s fees in the amount of $22,214. Father appealed the order and filed a motion in the

trial court and in this Court to stay the judgment pending appeal. Father’s motions to stay

were denied. We ultimately affirmed the trial court’s award of attorney’s fees in Massey v.

Casals, 315 S.W.3d 788 (Tenn. Ct. App. 2009) (“Massey I”).

In November 2008, while Massey I was pending on appeal, Mother’s attorney, Rachel

Putnam (“Attorney Putnam”), filed an “Application for Execution and Garnishment of

Accounts.” Consequently, an officer of the juvenile court caused to be issued a garnishment

of Father’s IRA accounts held with E*Trade Bank in order to satisfy the award of attorney’s

fees. On January 27, 2009, Father filed a motion to quash the writ of garnishment, arguing

that hisIRA accounts were exempt from garnishment pursuant to certain Tennessee statutes.

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Father also submitted his own affidavit, in which he stated that he had no notice of the

garnishment until he attempted to trade in his E*Trade accounts in January 2009 and

discovered that the accounts were frozen. He learned that the stock holdings in his two

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IRAs had been liquidated, and that the funds were forwarded to the juvenile court. Father’s

attorney contacted the juvenile court and obtained a copy of the garnishment.

In response to Father’s motion to quash, Attorney Putnam filed a “Creditor’s

Response . . . and Motion to Dismiss.” She argued that Father’s IRAs were not the type of

retirement accounts that are exempt from garnishment under Tennessee law. Accordingly,

she argued that the motion to quash should be dismissed.

In March 2009, a juvenile court magistrate held a hearing and entered a finding and

A judgment debtor may assert exemption rights after the service of a garnishment by filing a

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motion to quash the garnishment. Tenn. Code Ann. § 26-2-407; see also 6 Am. Jur. 2d Attachment &

Garnishment § 409 (“The appropriate and most commonly used method of attacking garnishment

proceedings is a motion to quash.”); 38 C.J.S. Garnishment § 352. To “quash” means “[t]o annul or make

void; to terminate.” Black's Law Dictionary (9th ed. 2009). Thus, a “motion to quash” is “[a] party’s request

that the court nullify process or an act instituted by the other party.” Id.

In Tennessee, notice to the judgment debtor of the impending garnishment is required by statute. 

2

16 Tenn. Prac., Debtor-Creditor Law &Prac. § 18:2 (2d Ed.); see Tenn. Code Ann. § 26-2-403, -404.

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recommendation that Father’s motion to quash the garnishmentshould be dismissed, and that

all funds currently on deposit with the juvenile court clerk, incident to the garnishmentserved

on E*Trade, should be immediately released to Attorney Putnam. The juvenile court clerk

released the garnished funds from the IRAs to Attorney Putnam. Father requested a

rehearing before the juvenile court judge and filed a motion for a stay pending the rehearing.

He claimed that he would incur a $5,000 tax penalty due to the early withdrawal of his IRA

funds if the funds were not returned to his IRA accounts. The matter was heard by a special

judge in December 2009, and in February 2010, the special judge reconfirmed the

magistrate’s ruling as the decree of the court and dismissed Father’s motion to quash.

Father appealed to this Court. In Massey v. Casals, No. W2010-00284-COA-R3-JV,

2011 WL 1734066 (Tenn. Ct. App. May 3, 2011) (“Massey II”), we were required to decide

“whether the trial court erred by determining that [Father’s] accounts were not exempt from

garnishment pursuant to Tennessee [statutes].” We concluded that Father’s IRAs were

exempt from garnishment under the cited statutes, and therefore, we reversed the trial court’s

judgment dismissing Father’s motion to quash. We remanded the case to the trial court for

further proceedings consistent with our opinion.

On remand, Father filed a motion to set aside the juvenile court’s order dismissing his

motion to quash (which had been reversed in Massey II), and he sought the entry of an order

granting his motion to quash and also “allowing Father to proceed with additional legal

proceedings for replacement of his property, specifically his stock holdings in the qualified

IRA accounts . . . as well as any other relief due and proper under the circumstances, not

excluding damages.” Following a hearing, the juvenile court entered an “Order on

Remand,” in which it, first, vacated its previous order dismissing Father’s motion to quash.

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However, the order went on to state:

The Court having heard further argument of counsel and upon a review of the

entire record in this cause finds that the Motion to Quash Garnishment shall

be and is hereby dismissed. The Court further finds that the sum of $22,214.00

previously awarded to [Attorney] Putnam pursuant to prior Orders of this

Court is to be paid in full by [Father].

Father appealed to this Court once again.

We note that the juvenile court’s order on remand states that it vacates the previous order 3

“denying” Father’s motion to quash, but the court’s previous order actually “dismissed” Father’s motion to

quash. 

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II. DISCUSSION

On appeal, Father argues that the trial court erred in again dismissing his motion to

quash the garnishment, thereby continuing to allow the garnishment of his exempt IRA

accounts. Father notes this Court’s prior holding that the IRA funds were improperly

garnished, and yet the garnished funds have not been returned to him but remain in the

possession of Attorney Putnam. In response, Attorney Putnam contends that the trial court

simply dismissed the motion to quash because our ruling in Massey II “pretermitt[ed] the

issue.” Without further explanation, she claims that the action taken by the trial court fully

complied with our holding in Massey II.

We are somewhat perplexed by the trial court’s ruling on remand. To recap, the

juvenile court’s 2009 order dismissed Father’s motion to quash based upon the court’s

conclusion that Father’s IRA accounts were not exempt property. We held in Massey II that

the IRA accounts were exempt property, and therefore we reversed the order dismissing

Father’s motion to quash. On remand, the juvenile court vacated its 2009 order but then

entered another order reaching the exact result – dismissing Father’s motion to quash.

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Father had asked the juvenile court, on remand, to grant his motion to quash and to dismiss

the writ of garnishment. We agree with Father’s contention that this was the result required

by our holding in Massey II.

“A writ of garnishment should be dismissed if it involves exempt personal earnings

or wages, or other exempt property of the defendant.” 38 C.J.S. Garnishment § 359. After

we reversed the trial court’s order dismissing Father’s motion to quash, the trial court, on

remand, should have granted Father’s motion to quash and thereby dismissed and dissolved

the writ of garnishment. Consequently, we again reverse the trial court’s order dismissing

the motion to quash, and we remand this matter to the trial court with instructions to grant

Father’s motion to quash and to dissolve the writ of garnishment.

For clarity, we will briefly discuss the practical effect of such an order. Again, the

definition of “quash” is “[t]o annul or make void; to terminate.” Black's Law Dictionary (9th

ed. 2009). An order quashing or dismissing a garnishment proceeding, or dissolving the

garnishment, “destroys the right secured by the garnishment” and “releases the property

garnished.” 38 C.J.S. Garnishment § 373. Tennessee Code Annotated section 26-2-408

provides that, in the context of garnishment proceedings, “[w]hen property has been

Interestingly, during the hearing on remand, the special judge acknowledged that the task before 4

him was “to set aside the magistrate’s order removing [the garnished funds] from the IRA account.” He

acknowledged that the funds should not have been garnished from that account, and said, “This court sets

that aside,” but yet he repeatedly stated that Father’s motion to quash the garnishment was dismissed.

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determined to be exempt by agreement or by judicial determination, the property shall be

immediately released to the judgment debtor.” Therefore, Attorney Putnam should return

the improperly garnished funds to the clerk of the juvenile court, and the clerk should

immediately release those funds to Father.

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Finally, we must address Father’s contention on appeal that this Court should order

the juvenile court clerk, Attorney Putnam, and/or Mother to restore the status of his IRA

accounts to the precise number of shares of stock and the exact amount of cash held in each

account prior to liquidation. He argues that merely returning the garnished funds to him will

not fully compensate him, because he will be forced to seek further relief in order to fully

restore the IRA accounts to their prior holdings. While that may be the case, this relief was

not requested during the proceedings below. In fact, Father’s attorney stated during the

hearing on remand that Father was simply asking the court to grant his motion to quash, and

stated, “That’s the extent of what we’ve asked for today. And then separate legal action will

be taken if anything else is done on the case.” Counsel for Father indicated that a separate

action would be filed seeking to recover damages from Attorney Putnam, as counsel stated

that the juvenile court would lack jurisdiction over such a matter. Likewise, in the motion

filed by Father on remand, he indicated an intent “to proceed with additional legal

proceedings for replacement of his property, specifically his stock holdings in the qualified

IRA accounts,” and damages.

Father is certainly obliged to pursue such additional relief in a separate proceeding,

but this relief was not sought in the case at bar, and therefore, we cannot award it on appeal.

Both parties have requested an award of attorney’s fees on appeal. We sympathize

with Father’s plight in this matter, as he was essentially forced to pursue this appeal in order

to have this Court reiterate our prior holding in Massey II. Mother’s counsel had the benefit

of our prior opinion and yet chose to disregard it. This Court’s prior opinion included a

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clear directive, yet Mother’s counsel retained the disputed funds, in complete disregard of

that directive. In her brief on appeal, Mother’s counsel could not provide us with any legal

authority for why she continued to maintain possession of the exempt IRA funds, and she

provided us with no reason why Father had to come back to the Court of Appeals to have us

say that we really meant what we said in our prior opinion. Considering these circumstances,

We note that there is some authority to suggest that when a writ of garnishment is dissolved, the 5

garnished funds should be returned to the garnishee, i.e., in this case, E*Trade Bank. 6 Am. Jur. 2d

Attachment & Garnishment § 435; 38 C.J.S. Garnishment § 373. However, in light of the clear instruction

provided by Tennessee Code Annotated section 26-2-408, we believe, in Tennessee, the funds must be

released to the judgment debtor, i.e., Father.

At the hearing, the trial court indicated that it was generally aware of our prior opinion but had not 6

yet had the opportunity to read it.

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an award of Father’s attorney’s fees on appeal would appear to be fair and reasonable.

However, our discretion is constrained in this context. “In Tennessee, courts follow the

American Rule, which provides that litigants must pay their own attorney’s fees unless there

is a statute or contractual provision providing otherwise.” Taylor v. Fezell, 158 S.W.3d 352,

359 (Tenn. 2005) (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194

(Tenn. 2000)). “In the absence of such a fee-shifting statute, contract provision, or other

recognized equitable ground, courts may not compel a losing party to pay the attorney fees

of the winning party.” In re Estate of Dunlap, No. W2010-01516-COA-R9-CV, 2011 WL

1642577, at *4 n.9 (Tenn. Ct. App. Apr. 29, 2011) (citing Brown, 18 S.W.3d at 194; Kultura,

Inc. v. S. Leasing Corp., 923 S.W.2d 536, 540 (Tenn. 1996)). The oft-cited “frivolous

appeal” statute, Tenn. Code Ann. § 27-1-122, allows us to “award just damages against the

appellant,” to include attorney’s fees or expenses “incurred by the appellee” as a result of

a frivolous appeal or one that was taken solely for delay. (Emphasis added). “Unfortunately

we have neither the statutory nor the inherent power to take similar action in a case wherein

a bona fide appeal is taken from a frivolous suit improvidently decided.” Bishop Baking

Co., Inc. v. Forgey, 538 S.W.2d 602, 604 (Tenn. 1976)). As a result, we must respectfully

deny Father’s request for an award of attorney’s fees on appeal.

III. CONCLUSION

For the aforementioned reasons, we reverse the decision of the juvenile court and

remand with instructions for the juvenile court to grant Father’s motion to quash and to

dissolve the writ of garnishment. Both parties’ requests for attorney’s fees on appeal are

denied. Costs of this appeal are taxed to the appellee, Patricia Ann Gho Massey, for which

execution may issue if necessary.

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ALAN E. HIGHERS, P.J., W.S.

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