WHEELER BONDING CO., INC.
1ST STOP BONDING LLC. ET AL.
Session September 4, 2019
from the Chancery Court for Davidson County No. 15-1142-IV
Russell T. Perkins, Chancellor
a nonsuit by the original plaintiff, one of the original
defendants was granted a default judgment with respect to his
counterclaim. The original plaintiff thereafter moved to set
the default judgment aside after the entry of final judgment,
and later, attempted to re-file its previously nonsuited
claims. After the trial court denied the motion to set aside
and entered an order striking the original plaintiff's
re-filed claims, this appeal followed. We reverse the denial
of the motion to set aside and vacate the default judgment.
The striking of the re-filed claims is affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Reversed in part, Vacated in part, Affirmed in Part and
Hammervold, Nashville, Tennessee, for the appellant,
Wheeler Bonding Co., Inc.. Michael G. Hoskins, Nashville,
Tennessee, for the appellees, 1st Stop Bonding, LLC and Wayne
B. Goldin, J., delivered the opinion of the Court, in which
Andy D. Bennett and W. Neal McBrayer, JJ., joined.
B. GOLDIN, JUDGE
AND PROCEDURAL HISTORY
appeal concerns a business dispute involving Wayne Parker and
two competing bonding companies, Wheeler Bonding Company,
Inc. ("WBC") and 1st Stop Bonding, LLC
("1st Stop"). WBC, which has been duly
licensed and registered in Tennessee since 1986, acts as a
surety and provides bail bonds to those who have been charged
with a criminal offense. Its principal location is in
Nashville. 1st Stop, whose principal location also
is in Nashville, operates a similar business to WBC. Wayne
Parker is a licensed bail bonding agent formerly affiliated
present litigation ensued on September 22, 2015 when WBC
filed a sworn complaint against 1st Stop and Mr.
Parker in the Davidson County Chancery Court
("the trial court"). Therein, WBC alleged that its
owner, Charles Wheeler, had begun to suspect that Mr. Parker
was acting outside of the terms of his exclusive contract
with WBC. Whereas Mr. Parker had historically been one of
WBC's most productive agents, WBC's complaint alleged
that Mr. Wheeler had noticed a "precipitous drop in
Parker's productivity" beginning in June 2015.
According to the complaint, an investigation into Mr.
Parker's production decline revealed, among other things,
• Mr. Parker had purchased a $75, 000.00 certificate of
deposit in the name of "1stStop Bonding"
to establish 1st Stop as a bonding company and
competitor of WBC.
• 1st Stop had collected fees for bonds that
individuals believed were written by Mr. Parker.
• Certain WBC client files were removed to the offices
of 1st Stop.
number of legal claims were ultimately asserted by WBC,
including a request for injunctive relief and a claim for
money damages based on an alleged breach of contract. An
amended complaint was later filed in February 2016, and
thereafter, Mr. Parker and 1st Stop filed
part, Mr. Parker filed a counterclaim against WBC incident to
the filing of his February 23, 2016 answer. In his
counterclaim, Mr. Parker alleged his contract with WBC
obligated WBC to deposit certain commission funds into an
"Agent Security Account." The counterclaim further
alleged that WBC had breached this obligation and further
claimed that WBC had spent funds in Mr. Parker's account
without his knowledge or opportunity to object. WBC filed an
answer to the counterclaim, specifically praying that it be
dismissed with prejudice.
September 21, 2017, the trial court held a combined discovery
and pretrial conference, at which time counsel for WBC
elected to take a voluntary nonsuit of WBC's claims.
Although WBC asserts that this action was taken without its
consent, an order dismissing WBC's claims against Mr.
Parker and 1st Stop, without prejudice, was
entered on October 4, 2017. This order provided that Mr.
Parker would "proceed with his counterclaim in the
capacity of a plaintiff" Effective January 10, 2018,
WBC's counsel was temporarily suspended from the practice
of law by the Supreme Court of Tennessee. Among other things,
the suspension order directed WBC's counsel to
"comply with Tenn. Sup. Ct. R. 9 in all respects."
As is relevant here, this required giving appropriate notice
of the suspension:
By no later than ten days after the effective date of the
order, the respondent attorney shall notify or cause to be
notified by registered or certified mail, return receipt
(a) all clients being represented in pending ...