Byrd and Associates, PLC v. Siliski, No. M2008-00066-COA-R3-CV (Tenn. App. 8/19/2009)
| Decision Date | 19 August 2009 |
| Docket Number | No. M2008-00066-COA-R3-CV.,M2008-00066-COA-R3-CV. |
| Parties | BYRD AND ASSOCIATES, PLC v. JENNIFER SILISKI AND ALAN SILISKI. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Williamson County; No. 31546; Jeffrey S. Bivins, Judge.
Judgment of the Chancery Court Vacated and Remanded.
Jennifer Siliski, Franklin, Tennessee, Pro Se.
Thomas F. Bloom, Nashville, Tennessee, for the appellant, Alan Siliski.
Rebecca E. Byrd, Franklin, Tennessee, for the appellee, Byrd & Associates, PLC.
Frank G. Clement, Jr., J., delivered the opinion of the court, in which Richard H. Dinkins, J. and Robert W. Wedemeyer, SP. J., joined.
The dispositive issue on appeal pertains to a party's fundamental and constitutional right to a jury trial guaranteed by Tenn. Const. art. I, § 6, and whether the defendants impliedly waived their right to a jury trial by being late for court. Both defendants had timely demanded a jury trial in their respective answers to the complaint; however, neither defendant was in the courtroom when court convened at 9:10 a.m. on the morning of trial. When the defendants appeared, the trial judge required that the case proceed to trial without a jury. The facts in this case reveal that the case was set to begin at 9:00 a.m. on July 5, 2007, that the trial judge convened court at 9:10 a.m., that immediately upon taking the bench the trial court ascertained that the defendants were not in the courtroom, and that without making any inquiry concerning their absence made the finding that the defendants had implicitly waived their right to a jury trial. The facts also reveal that one of the defendants, Alan Siliski, had been in the courtroom prior to court being convened, but went outside to await the arrival of his attorney, who had called to advise he was running late. As for the other defendant, Jennifer Siliski, the facts reveal that the plaintiff voluntarily dismissed its case against her during a pretrial conference three days earlier; however, a few hours after the conference the plaintiff informed the court, but not Ms. Siliski, that it had reconsidered and determined that Ms. Siliski was an indispensable party, therefore, it was not dismissing its case against her. Plaintiff contends Ms. Siliski received word of the change via a circuitous route from plaintiff's counsel to Mr. Siliski's counsel to Mr. Siliski, who was to inform Ms. Siliski that she was again a party in the fraudulent conveyances action. Ms. Siliski, however, insists that no one informed her that she was once again a party. It is undisputed that the plaintiff did not directly inform Ms. Siliski of this important fact and no one else testified that they personally informed Ms. Siliski of the change of circumstances prior to the morning of the trial. We have determined the above facts are not sufficient to support a finding that either defendant impliedly waived his or her right to a jury trial because a waiver should not be inferred without reasonably clear evidence of an intent to waive. Therefore, the defendants are entitled to a jury trial as each defendant had timely demanded. Accordingly, the judgments entered against the defendants as a result of the bench trial are vacated, and this matter is remanded for a jury trial on the issues.
The plaintiff in this action, Byrd & Associates, PLC, ("Plaintiff"), is a Tennessee corporation engaged in the practice of law. The principal of the law firm is attorney Rebecca E. Byrd. The defendants are Jennifer Siliski and Alan Siliski. Jennifer Siliski was previously represented by Plaintiff pursuant to a Retainer Agreement entered into on January 23, 2004, regarding a matter the parties identified in the agreement as "animal seizure."1 Defendant Alan Siliski is the former. husband of Jennifer Siliski; he has not been represented by Plaintiff.
On November 12, 2004, Plaintiff filed a Complaint against both defendants in which Plaintiff asserted two claims against Jennifer Siliski and one claim against Alan Siliski. For its first claim, Plaintiff asserted a breach of contract claim against Jennifer Siliski, which arises out of the Retainer Agreement between Ms. Siliski and Plaintiff entered into on January 23, 2004. In the Complaint, Plaintiff contends it performed all of the professional services required of it under the Retainer Agreement and that Jennifer Siliski breached the agreement by failing to pay Plaintiff for the services it rendered on her behalf. For its second claim, Plaintiff asserted a claim of fraudulent conveyance against both defendants, which pertains to the sale by Jennifer Siliski of her home to Alan Siliski on March 3, 2004. In the Complaint, Plaintiff contends that Jennifer Siliski conveyed all of her interest in her home to her former husband, Alan Siliski, "for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebtedness evidenced by the Retainer Agreement. . . ." As for Alan Siliski, Plaintiff alleges that he was aware of the relationship between Plaintiff and Jennifer Siliski and that he had constructive notice of Plaintiff's security interest in the home. Although it was not well plead, the trial court subsequently determined that Plaintiff was seeking to have the conveyance declared void pursuant to the Uniform Fraudulent Transfer Act, Tenn. Code Ann. § 66-3-301 et seq.
Ms. Siliski originally retained Plaintiff on January 23, 2004, to represent her in matters regarding the removal of over 230 animals from her home. Thereafter, Plaintiff also represented Ms. Siliski in matters regarding the removal of her children by the Department of Children's Services due to the unsanitary conditions in her home. In short order, Ms. Siliski incurred substantial legal fees. Soon thereafter, Plaintiff conveyed its concerns to Ms. Siliski that she was delinquent on her account, at which time Ms. Siliski suggested that her home could secure payment of her legal fees. On February 27, 2004, Plaintiff recorded the Retainer Agreement with the Williamson County Register of Deeds Office. On March 3, 2004, Ms. Siliski executed a warranty deed conveying her home to her ex-husband, Alan Siliski, for the consideration of $176,000.2 The deed was duly. recorded with the Williamson County Register of Deeds. Plaintiff was not informed of the conveyance, and upon the subsequent discovery of the conveyance, filed this action on November 12, 2004.
Over the next two and one-half years, the parties engaged in a relatively unproductive series of skirmishes by motion, counterclaims, and third partyclaims, as well as proceeding with discovery. In the interim, Ms. Siliski's attorney withdrew. Thereafter, Ms. Siliski represented herself in this matter. The case was finally set for trial by jury, to begin at 9:00 a.m., on July 5, 2007.
On the morning of July 2, 2007, the parties appeared before the court for a pre-trial conference. Plaintiff was represented by Rebecca Byrd, the president and sole stockholder of the firm. Ms. Siliski appeared pro se. Mr. Siliski and his attorney, John Herbison, also attended. During the pre-trial conference, the decision was made to bifurcate the trial of the two claims, separating the trial of the fraudulent conveyance claim from that of the breach of contract claim. Ms. Byrd announced during the conference that she had decided Ms. Siliski was not a necessary party to the fraudulent conveyance claim and that she was voluntarily dismissing her from that claim, but not the breach of contract claim. Ms. Siliski was then told by the trial judge that she was no longer a party to the fraudulent conveyance action and was not required to attend that trial, as the two claims were bifurcated.3 The court then announced that the breach of contract action against Ms. Siliski. would be tried first, that it would start at 9:00 a.m. on July 5, and that the fraudulent conveyance claim would start upon the conclusion of the breach of contract claim. The conference then ended.
Sometime later that day, Ms. Byrd realized that Ms. Siliski was a necessary party to the fraudulent conveyance action; therefore, she scheduled a telephone conference for 3:00 p.m. to inform the court and the defendants of this important change. Someone from Plaintiff's office called to inform Ms. Siliski that a telephone conference would take place at 3:00; however, Ms. Siliski did not participate in the telephone conference because she had become ill.4 The only participants to the. 3:00 p.m. telephone conference were Ms. Byrd, Mr. Herbison, and the trial judge. During the telephone conference, Ms. Byrd announced that she realized Ms. Siliski was a necessary party; thus, Plaintiff was rescinding its earlier decision to dismiss Ms. Siliski from the fraudulent conveyance claim. During the telephone conference, it was also decided to reverse the order of the two trials which had been bifurcated, and the trial of the fraudulent conveyance claim was now to be tried first, to start at 9:00 a.m. The trial judge instructed Mr. Herbison, Mr. Siliski's attorney, to inform Ms. Siliski of the changes. Mr. Herbison, however, made no attempt to contact Ms. Siliski; instead, he instructed his client, Mr. Siliski, of the events of the telephone conference and requested that he notify Ms. Siliski. Plaintiff prepared a letter memorializing the events of the 3:00 telephone conference, the certificate of service on which states it was sent by fascimile to Mr. Herbison and via hand-delivery to Ms. Siliski. Ms. Siliski, however, denies receiving any notification concerning what transpired during the telephone conference, and no one claims to have personally told her of what occurred during the telephone conference.
The trial of the fraudulent conveyance claim was to begin at 9:00 a.m. on July 5, 2007. At 9:10 a.m., the trial judge convened court and called the case. Plaintiff was present and answered the call;...
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