                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      May 6, 2004 Session

   TEZOZOMOC “TED” ALCANTAR, ET AL. v. HAULERS INSURANCE
                       COMPANY

                      Appeal from the Circuit Court for Davidson County
                           No. 01C-2237     Carol Soloman, Judge


                   No. M2003-01004-COA-R3-CV - Filed December 20, 2004


This is an action against an insurance company that is alleged to have breached its duties to an
insured by failing to provide a defense in a prior personal injury action, wherein a substantial default
judgment was entered against the insured. The former plaintiffs, now judgment creditors, and the
purported insured, now judgment debtor, have joined forces as plaintiffs in this action to recover
damages, including the amount of the default judgment, the purported insured suffered due to the
insurer’s refusal to provide a defense. The trial court dismissed the action on a Tenn. R. Civ. P. 12
motion for failure to state a claim on which relief could be granted. We affirm. The judgment on
which this action is based is void, because the relief granted therein by default judgment exceeded
the relief sought. In the alternative, if the previous judgment on which this action is based is valid,
the purported insured is not afforded coverage; the policy excluded injury or damage expected or
intended from the standpoint of the insured and it was held in the previous judgment that the
purported insured intended the collision and the Alcantars’ injuries.

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

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Barry E. Weathers, Nashville, Tennessee, for the appellants, Tezozomoc “Ted” Alcantar, and wife,
Judy Alcantar.

Wendy Lynne Longmire and Julie Bhattacharya Peak, Nashville, Tennessee, for the appellees,
Haulers Insurance Company, Inc.

                                              OPINION

        This action arises from a previous personal injury action, Alcantar, et. ux. v. Wadhwa, et. al.
(the “prior action”). Two of our three plaintiffs, Tezozomoc (Ted) and Judy Alcantar, were the
plaintiffs in the prior action. They sued Rajiv Wadhwa, along with numerous other defendants, for
personal injuries and damages resulting from a vehicular accident. Mr. Wadhwa was the driver of
a taxi which collided with the Alcantars. The taxi was owned by Chinedu Nwagwu, who was the
named insured under a Business Auto Policy issued by Haulers Insurance Company. Haulers
provided a defense to the owner of the taxi, Chinedu Nwagwu; however, it denied coverage to the
taxi driver, Mr. Wadhwa.1 Mr. Wadhwa did not obtain counsel or defend the action. Thus, the
Alcantars were awarded a default judgment against Mr. Wadhwa in the amount of $459,460.2
Haulers, which had previously denied coverage to Mr. Wadhwa, refused to indemnify him for the
judgment.

         Without the benefit of insurance coverage, Mr. Wadhwa was unable to satisfy the $459,460
judgment. Being of the opinion that he was insured under the Haulers Business Auto Policy and that
he had a cause of action against Haulers for breaching its duties to defend and indemnify him for his
liability to the Alcantars, Mr. Wadhwa entered into an agreement with the Alcantars whereby he
assigned his cause of action against Haulers. Consequently, the Alcantars, the former plaintiffs and
now judgment creditors, and Rajiv Wadhwa, the former defendant and now judgment debtor, joined
forces to bring the present action against Haulers.3 The Alcantars, as the assignees of Mr. Wadhwa’s
cause of action, allege that Haulers erroneously denied coverage to Mr. Wadhwa and thereby
breached its duties under the policy and therefore is liable for the damages suffered by Mr. Wadhwa,
including the $459,460 judgment the Alcantars obtained by default judgment.4 Haulers denies
liability.

                                          The Personal Injury Action
                                       Alcantar, et. ux. v. Wadhwa, et. al.

        In order to properly analyze the issues presented, we must conduct an examination of the
prior action. The Alcantars in the prior action were the plaintiffs. The defendants in the prior action
included Rajiv Wadhwa, Mai Cagle d/b/a Music City Taxi Company, Chinedu Raphael Nwagwu,


         1
          Haulers denied coverage and a defense to the taxi driver, Mr. W adhwa, because the policy excluded injury or
damage expected or intended from the standpoint of the insured, and its investigation established that the injuries suffered
by the Alcantars in the collision were the expected and intended result of Mr. W adhwa’s intentional acts.

         2
         The judgment awarded Ted Alcantar damages in the amount of $654,460, of which $200,000 is for punitive
damages, and Judy Alcantar damages in the amount of $15,000, of which $10,000 is for punitive damages. The
aforementioned punitive damages were assessed against another defendant, Mai Cagle d/b/a Music City Taxi Company.
The judgment against Rajiv W adhwa is the only one that pertains to this action.

         3
           Initially, the Alcantars were the only plaintiffs. Thereafter, the complaint was amended to add Rajiv Wadhwa
as an additional plaintiff. The amended complaint identifies Rajiv W adhwa as a plaintiff, individually and as an assignor
to the Alcantars.

         4
           The complaint specifically alleges that (1) Rajiv W adhwa was an insured of Haulers, (2) Haulers owed and
breached a duty to defend Mr. W adhwa in the previous action, (3) Haulers’ refusal to defend Mr. W adhwa constitutes
bad faith, (4) Haulers owed and breached a duty to Mr. W adhwa to inform Mr. W adhwa that the damages sought against
him by the Alcantars exceeded policy limits, (5) Haulers owed and breached the duty to inform Mr. W adhwa that he had
a right to retain independent counsel, and (6) Haulers owed and breached the duty to inform Mr. W adhwa of the legal
significance of Haulers’ failure to provide a defense for him.

                                                            -2-
and Nasir Auto Sales, Inc. Of the defendants, only Chinedu R. Nwagwu was a named insured under
the Haulers Business Auto Policy. The policy identified Chinedu Nwagwu’s 1993 Ford Crown
Victoria as the “covered auto.” The policy also acknowledged that the covered auto was leased to
Music City Taxi. The complaint alleged that Rajiv Wadhwa was the driver of the covered auto, a
taxi, that his negligence caused the collision with the Alcantars. The complaint further alleged that
Rajiv Wadhwa was driving the taxi within the scope of his employment and/or on the business of
the other named defendants.

       Haulers provided a defense in the prior action for Chinedu Nwagwu, its named insured and
owner of the covered auto. The firm of Ortale, Kelly, Herbert & Crawford was retained to represent
Chinedu Nwagwu. Haulers did not provide a defense for Rajiv Wadhwa and Ortale, Kelly, Herbert
& Crawford did not represent Rajiv Wadhwa, only Chinedu Nwagwu.5

         In the prior action, the Alcantars alleged inter alia that Rajiv Wadhwa’s negligence and
negligence per se was the proximate cause of their personal injuries. Specifically, the Alcantars
alleged in paragraph 14 of their amended complaint that “Defendant Wadhwa negligently, recklessly,
and wantonly operated the vehicle he was driving, in violation of Plaintiff Ted Alcantar’s right of
way, in that he had a duty to make a proper lookout before entering said lane, to obey the traffic lane
restrictions and to drive carefully.” The Alcantars alleged in Count I, entitled “Negligence of
Defendant Rajiv Wadhwa,” that the negligence of Mr. Wadhwa was “a direct and proximate cause
of the collision and of the severe injuries and other damages suffered by Plaintiffs.” Count I further
alleged specific acts of common law negligence, including failure to keep a proper lookout, failure
to maintain proper control of his vehicle and failure to yield the right of way.6 In Count II, entitled
“Negligence Per Se of Defendant Rajiv Wadhwa,” the Alcantars alleged that “Defendant Wadhwa
was guilty of negligence per se in violating statutes of the State of Tennessee and the Nashville
Metropolitan Code which were in full force and effect at the time and place of the collision. . . .”
The only statute identified was Tenn. Code Ann. § 55-10-205 (reckless driving). The Nashville
Metropolitan Ordinances identified were § 12.68.180 (reckless driving), § 12.68.170 (failure to
operate a vehicle in a careful and prudent manner), and § 12.12.110 (changed lanes before
ascertaining that such movement could be made safely).7 In their Amended Complaint, the Alcantars
further alleged that “as a direct and proximate result of one (1) or more acts of negligence and
negligence per se of Defendant Wadhwa, Plaintiff Ted Alcantar has suffered and continues to suffer




         5
          Ortale, Kelly initially filed a notice of appearance on behalf of Mr. W adhwa, however, the firm quickly filed
a corrected notice of appearance to indicate that the firm represented Chinedu Nwagwu, not Rajiv W adhwa. This
circumstance is discussed more thoroughly later in this opinion.

         6
             These allegations appear in paragraphs 25 and 26 of the amended complaint.

         7
             These allegations appear in paragraphs 28 of the amended complaint.

                                                          -3-
prolonged personal injuries and damages. . . .” Similar allegations were made in the following
paragraph concerning the injuries and damages allegedly suffered by Judy Alcantar.8

        Contrary to the allegations of negligence in the complaint, the judgment in the prior action
sets forth findings that “Rajiv Wadhwa acted willfully and maliciously in that he intended the
harmful consequences of the collision and knew that it would occur.” The judgment in the prior
action does not set forth any findings that Rajiv Wadhwa acted negligently or that he was negligent
or negligent per se or that the Alcantars’ injuries and damages were the result of his negligence. To
the contrary, the judgment expressly states that Mr. Wadhwa acted “willfully and maliciously” and
that he “intended the harmful consequences” suffered by the Alcantars. Furthermore, the judgment
expressly states “[t]hat as a direct and proximate result of the acts of the Defendants,” which would
be the intentional acts of Mr. Wadhwa, Ted Alcantar “suffered and continues to suffer pain” and
“permanent personal injuries and damages.” It further states “[t]hat as a direct and proximate result
of the acts of the Defendants,” which again would be the intentional acts of Mr. Wadhwa, Judy
Alcantar “suffered and continues to suffer pain” and “permanent personal injuries and damages.”9
There is nothing in the judgment which states that either Ted or Judy Alcantar suffered any injuries
as a result of Rajiv Wadhwa’s negligence or that they were awarded damages as a result of Rajiv
Wadhwa’s negligence.

                     Default Judgments: Restrictions on obtaining additional relief

        The judgment from the prior action was a default judgment. Tenn. R. Civ. P. 54.03 provides
that a judgment by default shall not be different in kind from that prayed for in the demand for
judgment. A plaintiff’s claim for relief is to be set forth in the complaint. Tenn. R. Civ. P. 8. The
complaint that was served on Rajiv Wadhwa contained numerous allegations that the Alcantars
suffered injuries and damages as a result of Mr. Wadhwa’s negligence and/or negligence per se. The
complaint that was served upon Mr. Wadhwa, however, did not contain any allegations that Mr.
Wadhwa acted intentionally or willfully or that the injuries suffered by the Alcantars were the result
of intentional or willful acts.10


         8
             These allegations appear in paragraphs 35 and 36 of the amended complaint.

         9
            The record does not explain why the judgment in the previous personal injury action awarded relief that was
beyond that sought in the complaint served on Mr. W adhwa. Though it is irrelevant to the issues presented, one might
surmise that intentional acts may have been added to preclude the defendant Rajiv W adhwa from obtaining relief in
bankruptcy. If that is the case, it is most ironic for it is the same language that makes the judgment void as is explained
in detail later in this opinion.

         10
            An action is commenced by the filing of a complaint with the clerk of the court, Tenn. R. Civ. P. 3, who then
shall forthwith issue the required summons and cause it and the complaint to be delivered for service upon the defendant.
Tenn. R. Civ. P. 4.01(1). A plaintiff’s claim for relief, demand for judgment, is to be set forth in the complaint or an
amended or supplemental complaint. If a plaintiff seeks additional relief prior to trial, the plaintiff must amend the
complaint pursuant to Tenn. R. Civ. P. 15 and cause it to be served on the defendant pursuant to Tenn. R. Civ. P. 5. The
Alcantars never amended the complaint to set forth a demand for judgment based on intentional or willful conduct by
                                                                                                            (continued...)

                                                           -4-
        The complaint in the personal injury action alleged that negligent acts and omissions by Mr.
Wadhwa caused the injuries and damages suffered by the Alcantars. The judgment, however, stated
that the injuries and damages suffered by the Alcantars were the proximate result of the intentional
acts of Mr. Wadhwa. That judgment expressly stated that Rajiv Wadhwa acted “willfully and
maliciously in that he intended the harmful consequences of the collision.” Thus, the only damages
awarded the Alcantars were for injuries and damages they sustained as a proximate result of Mr.
Wadhwa’s intentional acts. Stated another way, the Alcantars were not awarded damages based on
the negligent acts or omissions of Mr. Wadhwa. Therefore, the relief the Alcantars obtained against
Mr. Wadhwa in the personal injury action exceeded the relief sought in the complaint that was
served on Mr. Wadhwa.

       Tenn. R. Civ. P. 54.03 provides that a court shall not give the successful party relief where
“the opposing party had no opportunity to assert defenses to such relief.”11 The basic premise of
Rule 54.03 is neither new nor novel and is consistent with prior case law. “[A] judgment or a decree
which is beyond the fair scope of the pleadings is void." Electric Controls v. Ponderosa Fibres of
America, 19 S.W.3d 222, 227 (Tenn. Ct. App. 1999); (citing Brown v. Brown, 281 S.W.2d 492, 497
(Tenn. 1955)); accord Myers v. Wolf, 34 S.W.2d 201, 203 (Tenn. 1931); Lieberman, Loveman &
Cohn v. Knight, 283 S.W. 450, 452 (Tenn. 1926); Phifer v. Mutual Benefit Health & Accident Ass'n,
148 S.W.2d 17, 23 (Tenn. Ct. App. 1940).

         [T]he rule is firmly established that irrespective of what may be proved a court
         cannot decree to any plaintiff more than he claims in his bill or other pleadings."
         Fidelity-Phenix Fire Ins. Co. v. Jackson, 181 Tenn. 453, 181 S.W.2d 625, 629 (Tenn.
         1944). In order to sustain a judgment, therefore, a plaintiff's complaint must contain
         sufficient allegations to support a finding of liability on the part of the defendant. See
         Lancaster Mills v. Merchants' Cotton-Press & Storage Co., 89 Tenn. 1, 14 S.W. 317,
         324 (Tenn. 1890). Moreover, the judgment cannot award relief that differs from the
         relief sought by the plaintiff's complaint or that is based upon a theory of liability that
         differs from that alleged in the complaint. Fidelity-Phenix Fire Ins. Co., 181 S.W.2d
         at 629; Lancaster Mills, 14 S.W. at 324.

Electric Controls, 19 S.W.3d at 227.

         The principle underlying this rule is that, "[S]ince the purpose of pleadings is to give notice
to all concerned regarding what may be adjudicated, a judgment beyond the scope of the pleadings
is beyond the notice given the parties and thus should not be enforced." Brown, 281 S.W.2d at 497.
Our supreme court has explained that the rationale behind Tenn. R. Civ. P. 54.03 is that “a party has
a right to assume that the judgment following his default will not go beyond the issues presented by

         10
         (...continued)
Mr. W adhwa.

         11
           Tenn. R. Civ. P. 54.03 provides an exception where the parties litigated issues beyond the pleadings; however,
that exception is not available as to a party against whom a judgment is entered by default.

                                                          -5-
the complaint and the relief asked therein, and if a judgment other than that demanded is taken
against him, he is deprived of his day in court. . . ." Electric Controls, 19 S.W.3d at 227 (citing
Cushman v. Cushman, 178 Cal.App.2d 492, 3 Cal.Rptr. 24, 26 (1960)).

         The theory of this provision is that once the defending party receives the original
         pleading he should be able to decide on the basis of the relief requested whether he
         wants to expend the time, effort, and money necessary to defend the action. It would
         be fundamentally unfair to have the complaint lead defendant to believe that only a
         certain type and dimension of relief was being sought and then, should he attempt to
         limit the scope and size of the potential judgment against him by not appearing or
         otherwise defaulting, allow the court to give a different type of relief or a larger
         damage award. In a similar vein, unless all the parties in interest have appeared and
         voluntarily litigated an issue not within the pleadings, the court should consider only
         those issues presented in the pleadings. In sum, then, a default judgment may not
         extend to matters outside the issues raised by the pleadings or beyond the scope of
         the relief demanded. Wright and Miller, Federal Practice and Procedure § 2263, at
         99-100 (1973).

Electric Controls, 19 S.W.3d at 227-28 (citing Qualls v. Qualls, 589 S.W.2d 906, 909-10 (Tenn.
1979)); accord Holder v. Drake, 908 S.W.2d 393, 395 (Tenn. 1995); Pittman v. Pittman, No.
01A01-9301- CH-00014, 1994 WL 456348, at *4 (Tenn. Ct. App. Aug.24, 1994) (no perm. app.
filed); Harris v. Harris, No. 01A01-9101-PB-00017, 1991 WL 111434, at *2 (Tenn. Ct. App. June
26, 1991) (no perm. app. filed).

         A prior judgment is void where “the decree is wholly outside of the pleadings.” See Gentry
v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996)(citing William H. Inman, Gibson’s Suits in Chancery
§ 228 at 219-20 (7th ed. 1988)). While a “voidable” judgment is not subject to a collateral attack and
is valid and binding until it is either reversed by an appellate court or is set aside on a complaint filed
to impeach it, a “void” judgment is subject to collateral attack.12

        Based on the foregoing, we find the Alcantars’ default judgment against Mr. Wadhwa void
and therefore of no legal effect. Since the Alcantars’ judgment against Mr. Wadhwa is void, there
is no $459,460 judgment for Mr. Wadhwa to assign to the Alcantars. Since the Alcantars are no
longer the assignees of a judgment against Mr. Wadhwa upon which Mr. Wadhwa could base the




         12
           If an action is brought for the purpose of impeaching or overturning a judgment, it is a direct attack upon it.
On the other hand, “if the action . . . has an independent purpose and contemplates some other relief or result, although
the overturning of the judgment may be important, or even necessary, then the attack upon the judgment is collateral.”
Gentry, 924 S.W .2d at 680; Turner v. Bell, 279 S.W .2d 71, 75 (Tenn. 1955)(quoting Jordan v. Jordan, 239 S.W . 423,
445 (Tenn. 1922)).

                                                           -6-
present claim against Haulers, there is no basis for Plaintiffs’ claim against Haulers.13 Without the
benefit of the judgment from the prior action, neither Mr. Wadhwa or the Alcantars sustained
damages for which relief could be granted in this action. Accordingly, the trial judge acted properly
by dismissing Plaintiffs’ action pursuant to Tenn. R. Civ. P. 12.02(6) for failing to state a claim upon
which relief can be granted.

                                Haulers’ Duty to Defend and Inform Wadhwa

        We have determined that the judgment in the prior action is void. Though we are confident
in our ruling, should we be incorrect and, thus, should the judgment be valid, Plaintiffs are still not
entitled to recover. The reason for this is that the prior judgment, if valid, sets forth findings which
establish that Mr. Wadhwa’s actions and the consequences thereof were intended. The policy
excludes coverage for intentional acts by an insured. Thus, if the previous judgment were valid Mr.
Wadwha would not be afforded coverage, he would not be entitled to a defense, and he would not
be entitled to indemnification for the consequences of his intentional acts.

        On the day of the accident with the Alcantars, Mr. Wadhwa was driving the taxi, the covered
“auto”, with the permission of Music City Taxi, which was identified in the policy as the company
to which the covered “auto” was leased. The named insured, Chinedu Nwagwu, leased the covered
auto to Music City Taxi, which was authorized in the policy. The policy defines “insureds” to
include anyone using with your permission a covered automobile the named insured owns, hires or
borrows.14 Thus, Mr. Wadhwa was an additional insured and therefore was, or would be, afforded
coverage under the policy unless an exclusion applied. The Haulers Business Auto Policy at issue
excluded injury or damage “expected or intended from the standpoint of the insured.” The exclusion
in the policy reads,

                     This insurance does not apply to any of the following:

                     1.       Expected or Intended Injury

                              “Bodily injury” or “property damage” expected or
                              intended from the standpoint of the “insured.”




         13
            Though the claim is not before us, the only conceivable claim Mr. W adhwa might have against Haulers for
failing to provide a defense in the prior action would be the cost of defending the prior action. However, Mr. W adhwa
did not defend the prior action and did not incur expenses to retain counsel. Thus he has no damages to assign.

         14
              The definition of “insureds” in the policy includes the following:

                     a.       You [the named insured] for any covered “auto.”
                     b.       Anyone else while using with your permission a covered
                              “auto” you own, hire or borrow . . .

                                                            -7-
        The judgment upon which this action is based expressly states that the Alcantars’ damages
– the damages Plaintiffs seek to recover – were the proximate result of the intentional acts of Mr.
Wadhwa. Though Mr. Wadhwa was an additional insured, based on the fact he was using the
vehicle with permission, he was not afforded coverage, and therefore he is not entitled to
indemnification for damages resulting from such intentional acts. Accordingly, Mr. Wadhwa was
not insured for the damages awarded the Alcantars, and there was and is no coverage.

        Plaintiffs argue that Haulers is bound by the prior judgment against Mr. Wadhwa. This
argument however is terribly flawed. The prior judgment, if valid, does not hold Haulers liable; it
holds Mr. Wadhwa liable. Moreover, since Haulers was not a party to the prior action, the judgment
resulting from that action is not binding on Haulers.

         [T]he binding effect of a judgment against an insured does not extend to matters
         outside the scope of the insurance contract, and . . . the insurance company is neither
         obligated to defend nor is it bound by the findings of a court if the claim against the
         insured is not covered by the policy. To hold otherwise would be to estop the
         insurance company by the acts of parties in a transaction in which it has no concern
         and over which it has no control, and to deprive it of its day in court to show that the
         transaction is foreign to the insurance contract.

Kelly v. Cherokee Insurance Co., 574 S.W.2d 735, 738 (Tenn. 1978)(citing Farm Bureau Mutual
Automobile Ins. Co. v. Hammer, 177 F.2d 793, 800 (4th Cir. 1949)).

        Assuming, arguendo, the judgment from the prior action is valid, the judgment establishes
that Mr. Wadhwa’s actions and the damages resulting therefrom are excluded from coverage. Thus,
Haulers owed no duty to defend Mr. Wadhwa in the prior action, it was not obligated to inform him
of his rights, and it is not obligated to indemnify Mr. Wadhwa as alleged.15 Accordingly, if the
judgment from the prior action were valid, as Plaintiffs contend, the trial judge acted properly by
dismissing Plaintiffs’ action pursuant to Tenn. R. Civ. P. 12.02(6) for failing to state a claim upon
which relief can be granted.




         15
           W hile Haulers was obviously confident that Mr. W adhwa was not afforded coverage for the collision and the
resulting damages to the Alcantars, and it was obviously confident that it had no duty to provide a defense to Mr.
W adhwa, Haulers had no way of knowing whether the resulting judgment would be based on Mr. W adhwa’s alleged
negligence or on consequences intended by Mr. W adhwa. Thus, Haulers was taking a calculated risk that the resulting
judgment would be favorable. Had the judgment not provided that Mr. W adhwa intended the collision and resulting
damages, Haulers may have had a totally different situation on its hands. But that is not the case here. In essence,
Haulers guessed right. Moreover, Plaintiffs have no claim against Haulers for unilaterally denying coverage and refusing
to provide a defense without first seeking a declaratory judgment to assure that its calculated guess was correct. See
Kelly, 574 S.W.2d at 738 (quoting Hammer, 177 F.2d at 800).

                                                          -8-
                        Plaintiffs’ Efforts to Disqualify Haulers’ Legal Counsel

         Plaintiffs further allege that the trial court erred by not removing the firm of Ortale, Kelly,
Herbert & Crawford. Plaintiffs’ motion to disqualify the firm was based on the premise that the firm
represented Mr. Wadhwa, at least initially, in the underlying personal injury action, and therefore,
was precluded from representing a client who was adversarial to Mr. Wadhwa’s interests in this
litigation. The trial court correctly denied the motion because the premise of the motion is without
a factual foundation. The firm never represented Mr. Wadhwa. Admittedly, the firm submitted a
Notice of Appearance which listed Mr. Wadhwa as its client; however, the firm promptly filed a
corrected Notice of Appearance indicating that it did not represent Mr. Wadhwa, that it only
represented Mr. Nwagwu.16 Moreover, the firm never notified Mr. Wadhwa that they represented
him, and Mr. Wadhwa was never informed that they represented him nor was he of the impression
that they represented him. The first notice of appearance was a mere clerical error that was promptly
corrected without prejudice to Mr. Wadhwa, for at no time did Mr. Wadhwa rely on the mistaken
impression that the firm represented him. Thus, the issue is without merit.17

                                                     Other Issues

        Plaintiffs have raised two other issues. They argue that the trial court erred when it granted
Haulers’ motion for summary judgment based on the finding that the Alcantars breached the Release
and Settlement of Claims Agreement when they brought this action against Haulers. We find this
ruling is now moot based on our holding above, and we decline to discuss it further.

        Plaintiffs also assert that the trial court erred when it ordered the Alcantars to pay Haulers
$1,160.05 in discretionary costs. The premise of their argument is that Haulers should not have
prevailed in the trial court, and therefore it is not entitled to discretionary costs. Since we affirm the
trial court’s dismissal of Plaintiffs’ complaint, Haulers still prevails. Thus, Haulers is entitled to
recover discretionary costs. We therefore affirm the award of discretionary costs to Haulers.




         16
           In their brief, Plaintiffs correctly state that an attorney may not withdraw from representation of a client
without leave of court. Rule 5.02, Davidson County Local Rules of Court. However, the firm never represented Mr.
W adhwa. Admittedly it filed a notice of appearance to that effect, but that was a clerical error which was promptly
corrected. At no time did the firm represent Mr. W adhwa.

         17
          Haulers also attempted to disqualify counsel for Plaintiffs. A motion to that effect was filed and denied. The
order denying the motion stated that the issue had been referred to the Board of Professional Responsibility, which
determined that there was no conflict of interest and no justification to disqualify Plaintiffs’ counsel, Barry E. W eathers.

                                                            -9-
                                         In Conclusion

       The judgment of the trial court granting Haulers’ Rule 12 Motion to Dismiss Plaintiffs’
complaint is affirmed. This matter is remanded to the trial court for such other proceedings as may
be necessary. Costs are assessed against Tezozomoc Alcantar and Judy Alcantar.




                                                      ___________________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




                                               -10-
