Thomas v. Smith

682 S.W.3d 213

Nikita R. THOMAS

v.Donald L. SMITH

Court of Appeals of Tennessee, Eastern Section, AT KNOXVILLE.

June 20, 2023 Session

FILED July 28, 2023

Permission to Appeal Denied by Supreme Court: November 17, 2023

Appeal from the Chancery Court for Cumberland County, No. 2021-CH-2011, Ronald Thurman, Chancellor

Scott D. Hall, Sevierville, Tennessee, for the appellant, Donald L. Smith.

Samantha I. Ellis, Knoxville, Tennessee, for the appellee, Nikita R. Thomas.

OPINION

Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Kristi M. Davis, J., joined.

In this real property dispute, the petitioner brought an action to quiet title to and remove the respondent from a parcel of improved real property located in Cumberland County. Following a bench trial, the trial court ordered that the title of the property be fully vested in the petitioner. The trial court also ordered the respondent to vacate the premises within ten days. Following a damages hearing, the trial court entered an order awarding to the petitioner $8,000 in compensatory damages and $1,000 in attorney’s fees. The respondent has appealed, and the petitioner has raised an issue alleging that this is a frivolous appeal. Because we are unable to discern from the trial court’s judgment any consideration of the Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5 factors ("RPC 1.5 factors"), we vacate the award of attorney’s fees and remand for the trial court to make a new determination of a reasonable attorney’s fee award to the petitioner based on the RPC 1.5 factors. We deny the petitioner’s request for damages on appeal. We affirm the trial court’s judgment in all other respects.

I. Factual and Procedural Background

This case focuses on two competing deeds conveying ownership of a parcel of improved real property located in Crossville, Tennessee ("the Property"). The petitioner, Nikita R. Thomas, filed a petition on April 22, 2021, in the Cumberland County Chancery Court ("trial court"), seeking to quiet title to the Property. She also sought to remove the respondent, Donald L. Smith, who had been residing on the Property for several years. Ms. Thomas asserted ownership via a warranty deed ("the Warranty Deed") that was executed and recorded in July 2014. She alleged that Mr. Smith had fraudulently prepared a quitclaim deed ("the Quitclaim Deed"), dated 2012 and recorded in 2017, conveying title to the Property from Ms. Thomas to him. Ms. Thomas attached copies of both deeds to her petition. She requested that the trial court declare the Quitclaim Deed null and void, vest the Property solely in her name, order Mr. Smith "removed" from the Property, and award damages, including unspecified attorney’s fees, to her.

Mr. Smith filed an "Answer and Counterpetition" on July 14, 2021, denying the fraud allegations, generally denying that Ms. Thomas was entitled to any relief, and requesting attorney’s fees and expenses. In what he then entitled a "Countercomplaint" in the same pleading, Mr. Smith sought an absolute divorce from Ms. Thomas. However, Ms. Thomas had averred in her complaint that although the parties had been married previously, they had been divorced in 2004. Ms. Thomas filed an answer to the counter-complaint on August 17, 2021, stating that there was no pending divorce and asking that the counter-complaint be dismissed for failure to state a claim upon which relief may be granted.

The trial court conducted a bench trial on May 13, 2022. Ms. Thomas and Mr. Smith were the only witnesses who testified at trial. Ms. Thomas testified that she had been married to Mr. Smith from 2000 to 2004 and that they had previously resided in Florida. According to Ms. Thomas, the parties had divorced due to Mr. Smith’s having an affair, and Mr. Smith had subsequently moved to Tennessee with his mistress. Ms. Thomas explained that Mr. Smith and she entered into an oral agreement that he would use profits from real estate investments that he had sold to buy a home in Tennessee for Ms. Thomas and her children. Ms. Thomas stated that she and her children had relocated from Florida to the Property in Tennessee in 2007.

Ms. Thomas testified that "from 2007-2011, [Mr. Smith] was under contract [for the Property] with Judy Swallows." Ms. Thomas further explained that on December 1, 2011, she had contracted to purchase the Property as a sole owner via a lease-to-own agreement ("the December Contract") with Ms. Swallows, averring that Mr. Smith had relinquished any rights in the Property. Ms. Thomas had attached a copy of the December Contract to her petition, and presented it, along with the two deeds at issue, as exhibits at trial. The December Contract is signed by both Ms. Thomas and Mr. Smith, and it contains a provision directly above their signatures stating: "Donald L. Smith joins in this instrument to release any interest he might have in the above described property by previous contract." Ms. Thomas was known as "Nikita R. Wisor" at the time, which is how she signed the December Contract.

Ms. Thomas testified that Mr. Smith had initially moved into the home on the Property in 2011 "because he and his mistress split up" and that "he told [her] that he would sleep on [the] couch until he found a place." According to Ms. Thomas, she acquired a mortgage solely in her name from US Bank in 2014 to purchase the Property. She presented a record of payments associated with this mortgage at trial. She stated that Mr. Smith and she "had an agreement" that he would pay $550 in monthly rent until their son graduated from high school. She acknowledged that Mr. Smith began paying rent in 2018 but stated that he made payments in different amounts from month to month and that she had to make up the difference in order to meet the mortgage payment.

Ms. Thomas further testified that on July, 8, 2014, Ms. Swallows, along with her husband Dale Swallows, acknowledged and delivered the Warranty Deed to Ms. Thomas. The Warranty Deed was executed on July 8, 2014, and recorded by the Cumberland County Register of Deeds on July 18, 2014. It conveyed title to the Property from the Swallowses to Ms. Thomas, vested solely as her property under the name of Nikita R. Wisor. Ms. Thomas also testified that in 2017, she had left the Property unwillingly due to Mr. Smith’s threats of physical violence. She alleged that he had "changed the locks, and he changed the mailbox to a locked mailbox."

Mr. Smith testified that he had mistakenly signed away his rights to the Property in the December Contract. He asserted that unbeknownst to him, "in the very last paragraph [of the December Contract] the mortgage holder inserted language that said that I gave up all rights to the property," adding, "[t]his was not what [I] intended at all." Mr. Smith claimed that Ms. Thomas and he had executed the Quitclaim Deed in February 2012 in order to "remedy the situation." Mr. Smith recorded the Quitclaim Deed with the Register of Deeds on July 5, 2017. The Quitclaim Deed purportedly bore the signatures of Mr. Smith, Ms. Thomas, and a notary. However, the Quitclaim Deed contained two notary expiration dates and lacked any page numbers. Ms. Thomas testified during trial that she had never signed the Quitclaim Deed and that Mr. Smith was "known to forge documents." As the trial court noted in its final order, the legal description of the Property attached to and incorporated into the 2012 Quitclaim Deed referenced the 2014 Warranty Deed.

When Ms. Thomas’s counsel questioned Mr. Smith regarding why he had waited over five years to record the Quitclaim Deed, he responded: "I was not sure how that process worked because I know nothing about it. I don’t know about deeds."¹ When subsequently presented by Ms. Thomas’s counsel with copies of four quitclaim deeds that Mr. Smith had recorded within a week’s time in Florida in 2004, Mr. Smith responded: "I didn’t do four. I actually did six quitclaim deeds." He then began laughing on the stand. Shortly thereafter, the trial court halted Mr. Smith’s testimony, stating: "Get him off the stand! Draw up the Order. [The Quitclaim Deed] is as phony as a three-dollar bill. You’re lucky I don’t refer you to the State Attorney."

On May 27, 2022, the trial court entered an order declaring the Quitclaim Deed null and void, determining the Warranty Deed to be "in full force and effect," and finding title to the Property to be fully vested in Ms. Thomas. The court expressly found that Mr. Smith was not a credible witness. The May 2022 order also required Mr. Smith to leave the Property within ten days. Eleven days later, on June 7, 2022, the trial court issued a Writ of Possession to remove Mr. Smith from the Property, which was executed on June 8, 2022.

On the next day, June 9, 2022, the trial court conducted a hearing concerning damages. Ms. Thomas, Mr. Smith, and their son, Ryan Wisor, who had been living with Mr. Smith, were the only witnesses who testified at this hearing. During her testimony, Ms. Thomas referenced photographs of the Property that she stated were stored on her cell phone.² She described:

[T]he house was filthy, the carpets in all bedrooms smelled so bad of mildew they had to be removed. There was mildew underneath on the subflooring. The upstairs toilet was leaking sewage and was dripping down to the first floor that had caused mildew and damaged walls. The downstairs shower was leaking from the faucets. The outside faucet was stripped and was leaking. All this water had created a major mildew issue. All the appliances were taken from my home. Large hole in ceiling and large gouges in walls. Carpet had grease stains and wood floor had large scratches in them. The air conditioning unit is not working. Screens are missing from windows and porch screen had holes and tears in them. Cut plumbing pipes upstairs. Hot water tank is leaking on the floor in laundry room. Gutters are damaged outside. Porch steps are

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