LEROY DAMRON,                    )
                                 )    Bedford Circuit
      Plaintiff/Appellant,       )    No. 7301
                                 )
VS.                              )
                                 )
YELLOW FREIGHT SYSTEM, INC.,     )    Appeal No.
JERI ELLISON, CAROL HERTHEL,     )    01A01-9712-CV-00724
                                 )
      Defendants/Appellees.      )


              IN THE COURT OF APPEALS OF TENNESSEE
                                                        FILED
                          AT NASHVILLE
                                                 August 19, 1998
        APPEAL FROM THE CIRCUIT COURT OF BEDFORD COUNTY
                   AT SHELBYVILLE, TENNESSEE    Cecil W. Crowson
                                               Appellate Court Clerk
                  HONORABLE LEE RUSSELL, JUDGE



Leroy Damron
514 Temple Ford Road
Shelbyville, Tennessee 37160
PRO SE FOR PLAINTIFF/APPELLANT


Wade B. Cowan
315 Deaderick Street
Suite 1425
Nashville, Tennessee 37238-1425
ATTORNEY FOR DEFENDANTS/APPELLEES


                        AFFIRMED AND REMANDED.



                                 HENRY F. TODD
                                 PRESIDING JUDGE, MIDDLE SECTION




CONCURS:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE
LEROY DAMRON,                                 )
                                              )       Bedford Circuit
       Plaintiff/Appellant,                   )       No. 7301
                                              )
VS.                                           )
                                              )
YELLOW FREIGHT SYSTEM, INC.,                  )       Appeal No.
JERI ELLISON, CAROL HERTHEL,                  )       01A01-9712-CV-00724
                                              )
       Defendants/Appellees.                  )



                                     OPINION

       The plaintiff, Leroy Damron, has appealed from a summary judgment dismissing his suit

against his former employer Yellow Freight Systems, Inc., (hereafter “Yellow”) and two of its

office employees for wages withheld because of levy process issued by the U.S. Internal Revenue

Service (hereafter IRS) to collect delinquent income taxes assessed against plaintiff. Plaintiff

presents the following issues:

                      I.       Whether the trial court erred in failing to
               consider that the Notice of Levy was defective.

                      II.     Whether trial court erred in granting summary
               judgment in favor of defendant/appellee, Yellow Freight
               System, Inc., on the grounds that there was no relief available
               from state courts and Tennessee Law because
               defendant/appellee had immunity under the Internal Revenue
               Code for turning over wages in compliance with a defective
               Notice of Levy issued by the Internal Revenue Service.


       On August 22, 1994, IRS mailed to Yellow a “Notice of Levy” asserting a claim of

$86,605.18 against plaintiff for unpaid income taxes for the calendar years, 1984-1988, inclusive.

In response to the notice of levy, Yellow forwarded to IRS the net amount of plaintiff’s paycheck

on each payday thereafter. This suit seeks the recovery from Yellow of the amounts paid to IRS

on various grounds of irregularity of procedure by IRS.



       On September 8, 1995, plaintiff filed this suit against Yellow and two of its employees.

The unsworn complaint alleged in relevant part the following:

                     7.      On September 9, 1994, Plaintiff received his
               paycheck for the pay period ending September 2, 1994, to


                                             -2-
               find that $562.12 had been deducted and noted as a deduction
               per court order.

                       8.     Plaintiff had never been informed, by anyone,
               that a court order for garnishment or any other deductions
               were pending.

                      9.      On September 12, 1994, the Plaintiff
               telephoned the Yellow Freight payroll department, spoke to
               Carol Herthel, and asked for an explanation for the deduction.

                       10.   Defendant Herthel explained that the
               deduction was made because of a “Notice of Levy” by the
               Internal Revenue Service she had received by regular mail on
               August 29, 1994.
                                          ----
                       14.   Herthel subsequently made deductions every
               additional week that the Plaintiff worked, never allowing
               more than $21.62 to be paid weekly.

                       15.      Plaintiff did not receive his copy of the
               “Notice” from Yellow Freight until September 23, 1994, by
               regular mail.
                                             ----
                       19.      The defendants had no legal right or obligation
               to:
                                C. Honor a false instrument. The “Notice of
               Levy,” form 668-A, was fraudulent on its face, and was not
               even the proper document to be sent an employer.
                                             ----
                       23.      Even if the “Notice” had been lawful, the
               Defendants would have failed in their responsibility, to the
               Plaintiff, by not sending him his the copy of the “Notice of
               Levy,” and thereby giving timely notice, as required by law,
               so that he could claim any exemptions.
                                             ----
                       WHEREFORE, it is prayed that the Court grant the
               Plaintiff relief as follows:

                       1. Actual damages in the amount of two thousand
               dollars.

                     2.      Compensatory and punitive damages in the
               amount of one hundred thousand dollars.

                       3.      Reasonable attorney fees and costs in bringing
               this action.


       The answer of defendants generally denied wrongdoing and asserted that the complaint

failed to state a claim for which relief can be granted.




                                               -3-
        In support of their motion for summary judgment, defendants filed the affidavit of Jeri

Ellison stating:

                         1.       I am a payroll supervisor for Yellow Freight
                   System, Inc., and a defendant in this case.

                          2.      I have personal knowledge of the facts
                   contained in this affidavit.

                           3.     Attached as Exhibit 1 is a true and accurate
                   copy of the Notice of Levy from the Internal Revenue Service
                   received by Yellow Freight System, Inc. on or about August
                   29, 1994.

                           4.     The payroll deductions that Mr. Damron
                   complains about in his complaint made solely as a result of
                   Yellow Freight System, Inc.’s honoring the Notice of Levy
                   referred to above.


        The Notice of Levy exhibited to the affidavit listed federal income taxes and penalties

due from plaintiff for the years 1984-1988 in the total amount of $86,605.18, and required

Yellow to remit to the IRS the net wages due plaintiff.



        The plaintiff filed an unsworn response to defendants’ motion for summary judgment

with a collection of legal arguments, together with his affidavit stating:

                          1.      On Friday, September 9, 1994, I picked up my
                   paycheck from the guard shack at Yellow Freight’s terminal
                   in Nashville, Tennessee.

                           2.      The check showed a deduction of $562.12 for
                   a court order, of which I had no knowledge.

                          3.      I called the payroll department on the next
                   workday, the following Monday, September 12, 1994, and
                   spoke to Carol Herthel, payroll clerk, who informed me that
                   the money had been taken because of an IRS levy.

                           4.    Ms. Herthel told me that she would continue
                   to take my wages until the IRS told her to stop.

                           5.     I was never received any notice from anyone
                   about the Notice of Levy before the confiscation began. After
                   I inquired about my copy to Ms. Herthel, I received it a month
                   later.

                          6.      I have never received a copy of any
                   assessment, or a Notice of Demand For Tax from the IRS.



                                                -4-
                      7.     Yellow Freight System, Inc. never paid me
               more than $21.63 for any week after September 9, 1994.

                       8.     I repeatedly informed Yellow’s payroll and
               legal departments the Notice of Levy was fraudulent, that they
               made an error in taking my money, but they ignored me.

                       9.      The above specific facts are made on the
               personal knowledge of the plaintiff, Leroy Damron, and
               indicate there is a genuine issue for trial.


       The Trial Court sustained defendants’ motion for summary judgment, and plaintiff

appealed. His first issue asserts that the notice of levy was defective. He argues that the notice

of levy was ineffective and should havbe been ignored because he was not notified by IRS in

advance that the levy would be sent to Yellow; that it was not on the proper form and was not

properly served. Each of these arguments claims a fault of the IRS and not of Yellow or its

employees, except it is claimed that Yellow had a fiduciary duty to plaintiff to require IRS to

enforce its debt in strict compliance with all applicable laws and regulations.



       Yellow responds that it has no duty, fiduciary or otherwise to challenge any process

received from the IRS if it appears on its face to be effective.



       In U.S. v. Rogers, 461 US. 677, 103 S.Ct. 2132, 76 L.Ed. 2d 236 (1983), the United

States Supreme Court held that claims of the nature raised by plaintiff “do not require judicial

intervention” (by the employer), but that “it is up to the taxpayer --- to go to court.”



       26 USC § 6332(e) provides that compliance with that of a levy discharges that the

receiver of the levy from any obligation or liability to the taxpayer for payments to the IRS in

compliance with the levy.



       26 USC § 6332(d)(1) provides a 50% of penalty for failure to comply with a levy.




                                               -5-
        This Court is satisfied that Yellow had and has no duty to plaintiff to ignore, resist or

litigate the levy.



        Plaintiff’s second and last issue asserts that the Trial Court held that plaintiff’s claims

were not assertable in a state court. Plaintiff asserts no claim that his earnings were incorrectly

computed by Yellow. The discussion of plaintiff’s first issue establishes that plaintiff’s claim

should be made in a suit in which IRS is joined.



        It is apparent that this controversy is basically between plaintiff and IRS which is not a

party to this suit. TRCP Rule 19 reads in pertinent part as follows:

                        19.01 Persons to Be Joined if Feasible. - A person
                who is subject to the jurisdiction of the court shall be joined
                as a party if (1) in the person’s absence complete relief cannot
                be accorded among those already parties, or (2) the person
                claims an interest relating to the subject of the action and is so
                situated that the disposition of the action in the person’s
                absence may (I) as a practical matter impair or impede the
                person’s ability to protect that interest, or (ii) leave any of the
                persons already parties subject to a substantial risk of
                incurring double, multiple, or otherwise inconsistent
                obligations by reasons of the claims interest. If the person has
                not been so joined, the court shall order that the person be
                made a party. If the person properly should join as a plaintiff
                but refuses to do so, he or she may be made a defendant, or in
                a proper case, an involuntary plaintiff. This rule shall be
                construed to allow joint tort-feasors and obligors on
                obligations that are joint and several to be sued either jointly
                or severally.

                        19.02. Determination by Court Whenever Joinder
                Not Feasible. - If a person as described in Rule 19.01(1)-(2)
                hereof cannot be made a party, the court shall determine
                whether in equity and good conscience the action should
                proceed among the parties before it; or should be stayed or
                dismissed, the absent person being thus regarded as
                indispensable. The factors to be considered by the court
                include: (1) to what extent a judgment rendered in the
                person’s absence might be prejudicial to the person or those
                already parties; (2) the extent to which, by protective
                provisions in the judgment, by the shaping of relief, or other
                measures, the prejudice can be lessened or avoided; (3)
                whether or not a judgment rendered in the person’s absence
                will be adequate; and (4) whether or not the plaintiff will have
                an adequate remedy if the action is dismissed for nonjoinder.




                                               -6-
                          19.03. Pleading Reasons for Nonjoinder. - A
                  pleading asserting a claim for relief shall state the names, if
                  known to the pleader, of any persons as described in Rule
                  19.01(1)-(2) hereof who are not joined, and the reasons why
                  they are not joined.


        The complaint states no reason why IRS was not joined as an interested party. However,

it is doubtful that IRS could be joined in this action without its consent.



        Federal courts have jurisdiction of controversies involving the collection of federal taxes.

28 USCA § 1396, 47-B CJS - § 1164 pp. 498 et seq. The preferable route to a complete and just

resolution of the controversy would be a suit within the federal jurisdiction. Although not

claimed by plaintiff, he is allowed an exemption of part of his wages. 28 USCA § 6334(d).



        This Court has determined that the present action cannot be justly decided between the

present parties because of the absence of an indispensable party.



        The judgment of the Trial Court is affirmed without prejudice to further proceedings in

the Trial Court or other tribunal of competent jurisdiction for an inclusive adjudication of the

rights and liabilities of all interested parties. Costs of this appeal are taxed against the plaintiff

and his surety.



                                AFFIRMED AND REMANDED.



                                                         _________________________________
                                                         HENRY F. TODD
                                                         PRESIDING JUDGE, MIDDLE SECTION

CONCURS:


_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WILLIAM B. CAIN, JUDGE

                                                 -7-
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