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Rodgers v. Sallee

Court of Appeals of Tennessee, Knoxville

February 13, 2015


Session November 24, 2014

Appeal from the Circuit Court for Knox County No. 2-489-12 Harold Wimberly, Jr., Judge

Yarboro A. Sallee, Knoxville, Tennessee, Pro Se.

Larry C. Vaughan, Knoxville, Tennessee, for the appellees, Frances G. Rodgers and Harley Vearl Bible.

Thomas R. Frierson, II, J., delivered the opinion of the Court, in which D. Michael Swiney and John W. McClarty, JJ., joined.



I. Factual and Procedural Background

The plaintiffs, Frances G. Rodgers and Harley Vearl Bible ("Plaintiffs"), are the parents of a deceased adult child, Lori Noll, who passed away in 2009 under circumstances that Plaintiffs believed to be suspicious. In September 2010, Plaintiffs hired a Knoxville attorney, Yarboro A. Sallee, to represent them in a wrongful death action and other related matters concerning Ms. Noll's death. Ms. Sallee immediately began to perform legal services for Plaintiffs despite the fact that the parties never executed a written agreement regarding related fees and expenses.

Plaintiffs asserted that they terminated Ms. Sallee's services a few months later, having already paid her attorney's fees in the amount of $54, 000. Plaintiffs claimed that they tendered certain amounts to Ms. Sallee periodically, whenever she requested payment, even though they were not provided itemized billing statements. According to Plaintiffs, it was months following her termination of employment that Ms. Sallee sent them a billing statement, claiming that Plaintiffs owed her an additional $86, 000 in fees and expenses. Plaintiffs subsequently filed the instant action on September 14, 2012, asserting that Ms. Sallee was guilty of various misrepresentations, including that (1) she was a competent attorney who was experienced in this type of litigation and (2) she would represent them zealously and charge them appropriate and reasonable fees. Plaintiffs sought compensatory damages in the amount of $54, 000, representing the fees they had paid to Ms. Sallee, as well as punitive damages of $1.2 million.

On March 20, 2013, Plaintiffs filed a motion for default judgment, asserting that although Ms. Sallee had intentionally avoided service of process for many months, she was successfully served by the Knox County Sheriff's Department on February 14, 2013. Plaintiffs thus sought a default judgment against Ms. Sallee as more than thirty days had elapsed with no responsive pleading having been filed. The motion declared that a hearing thereon had been set for April 12, 2013, at 9:00 a.m. The motion also presented a certificate of service reflecting that the motion was mailed to Ms. Sallee's home address by Plaintiffs' counsel.

A motion hearing was conducted on April 12, 2013; however, Ms. Sallee did not appear. The trial court granted a default judgment to Plaintiffs, awarding them $53, 000 in compensatory damages and $500, 000 in punitive damages. A copy of the judgment, entered April 15, 2013, was mailed to Ms. Sallee's home address.

Thereafter, on May 15, 2013, Ms. Sallee filed an answer to the Plaintiffs' complaint. Ms. Sallee indicated that as she had been staying with her ailing mother for the past few months, she seldom spent time at her own home. Ms. Sallee thus claimed that she had not received any mailings sent to her residence and that she learned of the instant action when reviewing the computerized records maintained by the clerk of the Knox County Circuit Court. Although Ms. Sallee admitted that she did discover a copy of a summons in her driveway, she insisted that she was never personally served with process. Ms. Sallee also filed a motion seeking to set aside the default judgment, positing that she had not received proper service of process and that she had meritorious defenses to Plaintiffs' claims.

During the ensuing months, various motions were filed by both parties. Motion hearings were held on June 28, August 2, and August 30, 2013. During the hearing conducted August 30, 2013, the trial court issued an oral ruling from the bench, denying Ms. Sallee's motion to set aside the default judgment. However, no written order was entered at that time.

In September 2013, Ms. Sallee filed a premature notice of appeal, concomitantly filing numerous additional motions seeking to attack the default judgment. Subsequently, on January 24, 2014, at 8:51 a.m., Ms. Sallee filed a motion seeking the recusal of Circuit Court Judge Harold Wimberly, Jr. Ms. Sallee based her motion, inter alia, on her perception that Judge Wimberly was "hostile" toward her and "refused" to deal with the issues she raised questioning the propriety of the default judgment. Later that day at 2:30 p.m., the trial court entered an order finding that Ms. Sallee's motion seeking to set aside the default judgment was not well taken. Accordingly, the motion was denied. Through the order, the trial ...

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