                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

A LAN E. H IGHERS, P.J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, 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.   F ACTS & P ROCEDURAL H ISTORY

        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 his IRA accounts were exempt from garnishment pursuant to certain Tennessee statutes.1
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.2 He learned that the stock holdings in his two
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


        1
            A judgment debtor may assert exemption rights after the service of a garnishment by filing a
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.
        2
         In Tennessee, notice to the judgment debtor of the impending garnishment is required by statute.
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 garnishment should be dismissed, and that
all funds currently on deposit with the juvenile court clerk, incident to the garnishment served
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.3
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.




        3
          We note that the juvenile court’s order on remand states that it vacates the previous order
“denying” Father’s motion to quash, but the court’s previous order actually “dismissed” Father’s motion to
quash.

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                                           II.   D ISCUSSION

       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.4
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


        4
           Interestingly, during the hearing on remand, the special judge acknowledged that the task before
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.5

        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.6 This Court’s prior opinion included a
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,


        5
           We note that there is some authority to suggest that when a writ of garnishment is dissolved, the
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.
        6
         At the hearing, the trial court indicated that it was generally aware of our prior opinion but had not
yet had the opportunity to read it.

                                                      -5-
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. C ONCLUSION
       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.


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




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