                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                On-Briefs December 29, 2000

       WAYFORD DEMONBREUN, JR. v. DENNIS J. HUGHES, ET AL.

                A Direct Appeal from the Circuit Court for Davidson County
                No. 98C-26   The Honorable Hamilton V. Gayden, Jr., judge



                   No. M2000-01116-COA-R3-CV - Filed January 30, 2001


Plaintiff, inmate acting pro se, sued two former attorneys alleging that after the first attorney was
removed from his criminal case and ordered to refund part of the retainer fee paid, the second
attorney was appointed to represent plaintiff. Subsequently, the second attorney, without
authorization, compromised and settled plaintiff’s claim against the first attorney and converted the
proceeds of the settlement to his own use. The first attorney was never served with process, and the
trial court granted summary judgment to the second attorney. Plaintiff has appealed.

    Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                      Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS ,
J. and DAVID R. FARMER , J., joined.

Wayford Demonbreun, Pro Se

F. Michie Gibson, Jr., Pro Se

                                            OPINION

        On January 6, 1998, plaintiff, Wayford Demonbreun, filed a complaint against defendants,
Dennis J. Hughes and F. Michie Gibson, Jr., seeking recovery for alleged legal malpractice and
conversion of property and fraud. The complaint alleges that plaintiff had retained defendant
Hughes to represent him in defense of several criminal actions in Davidson County and that Hughes
was paid a fee in the amount of $32,000.00 for services to be rendered. The complaint avers that on
or about September 26, 1995, during the course of one of the trials, evidence was introduced that
Hughes had engaged in the illegal act of bribing a prosecution witness, and on that date the criminal
court judge discharged Hughes from further involvement in the case and ordered Hughes to refund
the legal fees paid by plaintiff within 60 days. The complaint further avers that on September 26,
1995, the criminal court judge appointed defendant Gibson to represent the plaintiff in the criminal
proceeding. The complaint further alleges:
               7. Thereafter, defendant Gibson without the consent, authorization
               or approval of plaintiff and without plaintiff employing or agreeing
               to the employment of defendant Gibson in the matter regarding the
               return of his legal fees from defendant Hughes, fraudulently
               misrepresented himself as counsel for plaintiff in the return of the
               legal fees ordered to [be] repaid by the Criminal Court on or about
               September 26, 1995, and fraudulently entered into an agreement with
               defendant Hughes to settle the return of the legal fees ordered by the
               Court and did obtain and unlawfully convert for his personal use
               property belonging to the plaintiff, without plaintiff’s consent,
               authorization or approval.

               8. Thereafter, defendant Gibson without the authorization of the
               plaintiff and fraudulently, did obtain legal fees from the defendant
               Hughes as a settlement and converted said fees for his own use
               without plaintiff’s consent, approval or authorization.

        Plaintiff avers that by virtue of the refusal of Hughes and Gibson to return plaintiff’s legal
fees, he was deprived of the opportunity to employ counsel of his choice, thus interfering with his
Sixth Amendment right to counsel of his choice. The complaint demands judgment against each
defendant in the amount of $32,000.00.

        Defendant Gibson was duly served with process, but a “not to be found” return was made
on the summons issued to Hughes. No alias summons was issued to this defendant.

      Gibson’s answer to the complaint denies the material allegations thereof. Subsequently,
Gibson filed a motion for summary judgment and attached as exhibits the following:

       (1) Order of the Criminal Court of Davidson County, Tennessee, in cause number 95-B-
1131, State of Tennessee vs.Wayford Demonbreun, which states as follows:

                       On September 26, 1995, during a trial in this case, proof was
               introduced that one of the victims had been offered a bribe to change
               her testimony and strongly suggesting that the Defendant’s attorney,
               Mr. Dennis Hughes, was at least aware of the attempt to suborn
               perjury. All of the surrounding circumstances will appear on the
               record but in summary, this court was of the opinion that if Mr.
               Hughes was involved, he could not continue to represent the
               Defendant and if he was not, his position would be hostile to that of
               his client. Accordingly the Court relieved Mr. Hughs and appointed
               Mr. Michie Gibson to represent the Defendant. The Defendant stated
               that he had paid Mr. Hughes $35,000.00. The court ordered Mr.
               Hughes to refund the fee within 60 days. Mr. Hughes did not make
               any refund and a petition for contempt was filed and a hearing held

                                                 -2-
       thereon on December 18, 1995. At that hearing the Court heard
       testimony from the Defendant Demonbreun, members of his family
       and Mr. Hughes from which it appeared that in fact Mr. Hughes had
       been paid $31,400 by the Defendant and his family but that $10,000
       of that amount was for fees in two other cases and that Mr. Hughes
       had earned $7,500.00 in this case. This court therefore ordered Mr.
       Hughes to refund $13,900 unearned fee to the Defendant. As no
       hearing had been held to ascertain what amount should be refunded,
       it was the court’s opinion that a finding of contempt was not justified.

               The defendant has filed another petition for contempt, but the
       clerk did not tell this court it had been filed, did not obtain the
       signature of a judge to the fiat and did not cause Mr. Hughes to be
       served. More importantly, the Court Clerk neglected to place the
       order of December 18, 1995 on the Court’s minutes. Since the Court
       speaks through its minutes, the December 18 order is not operative.

               IT IS THEREFORE ORDERED nunc pro tunc that Mr.
       Dennis Hughes refund $13,900.00 to Wayford Demonbreun within
       thirty (30) days of the entry of this order on the Court’s minutes. It
       is further ORDERED that the clerk of the Criminal Court
       immediately place this order on the Court’s Minutes. It is further
       ORDERED that in the event that sum is not paid in to the clerk of the
       court within 30 days of the entry of this order, process be issued by
       the clerk compelling Dennis Hughes to appear before this court
       within 5 days to show cause why he should not be held in civil
       contempt of this court for refusal to obey this order.

(2) a paper styled “Employment of Contract and Assignment” which states as follows:

              I, Wayford Demonbreun, in consideration of legal services
       rendered to me by F. Michie Gibson, Jr., in the criminal indictment
       now pending against me in Davidson County, Tennessee and my post
       conviction relief action against Dennis Hughes, do hereby agree to
       pay to F. Michie Gibson, Jr., the sum of fifteen Thousand
       ($15,000.00) Dollars as follows:

              The sum of Two Thousand ($2,000.00) Dollars will be paid
       on or before February 25, 1996; and

              The balance of Thirteen Thousand ($13,000.00) Dollars will
       be paid on or before April 1, 1996.



                                         -3-
                       I, Wayford Demonbreun, further assign all rights and interest
               that I have in the judgment against Dennis Hughes in the Criminal
               Court for Davidson County, Tennessee Division I under docket
               number 94-B-1131 to F. Michie Gibson, Jr. to be applied to the
               balance of this contract.

                       It is understood that this is a non-refundable retainer fee.

                      I further agree that if collection of the above amount is
               necessary, I will be responsible for the costs of said collect, including
               attorney’s fee, Court costs and other costs of litigation.

                       Signed this 20th day of February, 1996.

                                       ___________________________________
                                       /s/ Wayford Demonbreun

       (3) An undated letter from plaintiff to defendant Gibson concerning the making of fee
arrangements with plaintiff’s uncle and a discussion of efforts in handling of the cases; (4) a copy
of NationsBank cashier’s check dated February 22, 1996 in the amount of $2,000.00 payable to
Mitch Gibson and showing the remittitur as Sonya Bell; (5) a copy of a letter dated March 12, 1996
from defendant Gibson to plaintiff as follows:

               March 12, 1996



               Mr. Wayford Demonbreun #245840
               T.C.I.P. Unit 4-A
               Route 1, Turney Center
               Only, Tennessee 37140-9709

               Re: State of Tennessee vs. Wayford Demonbreun
                  Number: 95-B-1131

               Dear Wayford:

                      As discussed at our meeting the other day, I have entered a
               Motion to show that the judgment placed against attorney Dennis
               Hughes has been satisfied. Also, I stated that I would forgive the
               balance of the amount owed to me in our contract.

                     I look forward to working with you in your defense and will
               be coming to see you again as soon as possible.

                                                 -4-
                                             Sincerely,

                                             F. Michie Gibson, Jr.

      (4) A copy of an order of compromise and settlement entered in the Criminal Court for
Davidson County, Tennessee in cause number 94-B-1131, State of Tennessee vs. Wayford
Demonbreun as follows:

                       This cause came to be heard on March 22, 1996 on Motion of
               the Defendant to enter an Order of Compromise and Settlement of the
               civil judgment placed against attorney Dennis Hughes on December
               18, 1996 by this Honorable Court. The Court finds that the
               Defendant’s Motion is well taken as follows:

               1. That attorney Dennis Hughes has tendered to Wayford
               Demonbreun’s attorney, F. Michie Gibson, Jr., funds sufficient to
               satisfy the judgment entered against him on December 18, 1995 by
               this Honorable Court.

               2. That attorney Dennis Hughes appeal of the judgment entered
               against him on December 18, 1995 is dismissed.

               IT IS, THEREFORE, ORDERED,

               ENTERED this 25th day of March, 1996.

       (5) A copy of a hand-written letter from plaintiff to “Mr. Gibson” which is mostly illegible
but appears to be irrelevant to the issues before us; (8) an order entered October 6, 1997, in the
Criminal Court of Davidson County, cause number 94-B-1131, State of Tennessee vs. Wayford
Demonbreun, relieving defendant Gibson as attorney of record for defendant in that case.

       Gibson also filed an affidavit in support of the motion that the statements and allegations
were true and accurate to the best of his knowledge, information, and belief.

        Plaintiff filed a sworn response to the motion for summary judgment in which he states
defendant Gibson misrepresented himself by procuring the plaintiff’s retainer fee. He states that
Gibson “took the initiative to become mediator in the interest of the fee which was ordered to be
refunded back to plaintiff from Dennis Hughes, which was $13,900.00.” He states that defendant
Gibson was appointed to represent him pursuant to Supreme Court Rule 13, and he had no authority
to deal with plaintiff’s property.
        From the order granting summary judgment, plaintiff has appealed and presents six issues
for review. However, we perceive the determinative issue to be whether the trial court erred in
granting summary judgment to defendant.


                                               -5-
        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993),
our Supreme Court stated:

               Once it is shown by the moving party that there is no genuine issue
               of material fact, the nonmoving party must then demonstrate, by
               affidavits or discovery materials, that there is a genuine, material fact
               dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06]
               provides that the nonmoving party cannot simply rely upon his
               pleadings but must set forth specific facts showing that there is a
               genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the
trial court’s grant of summary judgment is de novo on the record before this Court. Warren v.
Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        In the instant case, plaintiff does not deny that he signed an assignment of his claim against
Hughes, but he does state in response to the motion for summary judgment that at all times defendant
Gibson was appointed counsel pursuant to Supreme Court Rule 13. The record reflects that
defendant Gibson did receive funds from defendant Hughes by virtue of the compromise and
settlement which was approved by order of the criminal court. The criminal court had supervision
of the criminal case which brought about the events leading to the fee controversy and the entry of
the order approving the compromise settlement of the Hughes fee matter implicitly recognized that
defendant Gibson was not acting as appointed counsel for that particular trial of the plaintiff.

       Accordingly, the order of the trial court granting summary judgment to defendant Gibson is
affirmed, and the case is remanded to the trial court for such further proceedings as may be
necessary. The dismissal of the case as to defendant Hughes is also affirmed for lack of prosecution
and lack of service of process. Costs of the appeal are assessed against appellant, Wayford
Demonbreun, and his surety.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.


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