IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
B & G CONSTRUCTION, INC. v. MANFRED POLK, ET AL.
Direct Appeal from the Circuit Court for Davidson County
No. 98C-3550 Barbara N. Haynes, Judge
No. M1999-00677-COA-R3-CV - Decided April 18, 2000
This appeal arises from a judgment for the Appellee landlord in a Circuit Court appeal from a
detainer action originally brought in Davidson County General Sessions Court. The Appellant tenant
raises issues alleging error in the Trial Court’s assertion of jurisdiction over the cause of action.
These assertions are based upon the tenant’s objection to the method of service of process for the
General Sessions Court detainer warrant, and failure of the Circuit Court to recognize the tenant’s
filing of a petition for removal in the United States District Court. Because the detainer warrant was
served upon an adult found in possession of the premises in question, service of process was
effective under T.C.A. § 29-18-115(a) to establish jurisdiction for the original General Sessions
Court award of possession in favor of the landlord. When the tenant appealed the General Sessions
Court judgment to Davidson County Circuit Court under the authority of T.C.A. §§ 29-18-128 and
27-5-108, the appeal was de novo under T.C.A. §§ 16-15-729 and 27-5-108(c), and the Circuit Court
acted properly in awarding the landlord not only possession, but also damages and discretionary
costs. Because the tenant failed to comply with the procedure required to remove the lawsuit from
the jurisdiction of the Tennessee courts to the jurisdiction of the federal court, the Trial Court
properly retained jurisdiction over this cause of action.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
SWINEY , J., delivered the opinion of the court, in which GODDARD , P.J., and FRANKS, J., joined.
Manfred Polk, Brentwood, Tennessee, appellant, Pro Se.
Isham B. Bradley, Brentwood, Tennessee, for the appellee, B & G Construction, Inc.
OPINION
Defendant/Appellant Manfred Polk (“Defendant”) appeals the judgment of the Trial Court
in awarding possession, damages, and discretionary costs to Plaintiff/Appellee B & G Construction,
Inc. (“Plaintiff”) in a wrongful detainer action originally brought in General Sessions Court and
appealed by Defendant to the Davidson County Circuit Court. Defendant challenges the jurisdiction
of the Trial Court in the effectiveness of service of process by leaving a copy of a General Sessions
Court detainer action summons with an adult found in possession of the premises, and for failing to
recognize removal of the lawsuit to federal court. Additionally, Defendant raises assertions of error
in the Trial Court’s rulings on various motions. For the reasons set forth below, the judgment of the
Trial Court is affirmed.
BACKGROUND
This lawsuit has a convoluted procedural history, and the record on appeal is, at best, sparse.
Defendant and his wife, Muriel Polk, apparently rented a residence in Davidson County from
Plaintiff. A dispute arose between Defendant and Plaintiff, and Defendant ceased payments, but held
over possession of the residence. Plaintiff filed a detainer warrant with the Davidson County
General Sessions Court December 4, 1998, and service was executed December 9, 1998. Default
judgment was entered in the General Sessions Court, from which Defendant appeal to the Davidson
County Circuit Court. Defendant filed a Motion for Dismissal, moving that Muriel J. Polk be
dismissed from the cause of action “due to nonservice”. On April 8, 1999, another Motion for
Dismissal was filed by Defendant above his signature as “Attorney Pro se for Appellant,” with the
subheading “Motion to Vacate and/or Default Judgment,”once again asserting claims regarding the
legal rights of Muriel J. Polk. The Order of Possession and Judgment entered in the Circuit Court
April 12, 1999, indicates that the lawsuit was heard December 29, 1998, and awards possession to
Plaintiff, along with damages in the amount of $15,322.00, and attorney’s fees of $3,700.00.
Defendant filed a Motion for New Trial May 11, 1999, with various attachments. It appears that
Defendant again filed the April 29 Motion for Dismissal on May 11, 1999, along with various
affidavits and exhibits. The Trial Court issued an Order filed May 25, 1999, denying the Motion for
Dismissal, Motion to Vacate and/or Default Judgment, and the Motion for New Trial, and stating
“[t]his is a final order of this Court in this cause.” Although the record indicates additional post-
judgment litigation below concerning bond issues and stay of the Trial Court judgment pending this
appeal, it is from the May 25, 1999 Order that Defendant appeals.
DISCUSSION
The record on appeal is set forth in T.R.A.P. Rule 24(a). Defendant appended a large volume
of various materials to his brief, seeking on appeal to draw factual inferences therefrom. Such filings
are not included in our analysis of what transpired in the Trial Court under T.R.A.P. Rule 24(g), as
the materials were neither filed with, nor considered by, the Trial Court, and do not serve to convey
a fair, accurate, and complete account of what transpired in the Trial Court with respect to the issues
on appeal. The “Statement of Facts” in Defendants’ brief is comprised of narrative and reference
to material not found in the record of the Trial Court, along with alleged quotations from testimony
at trial and statements attributed to the Trial Court. Apparently, no transcript of the proceedings
below was recorded, therefore, none of these “facts” is reflected in the record and none of this
material is considered on appeal. Likewise, Plaintiff’s brief is unhelpful, arguing without a single
citation to the record of the Trial Court, with only one case cited as “interesting to note,” without
discussion as to any relevance to the issues on appeal. Plaintiff, like Defendant, appended and
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references material that does not appear in the record of the Trial Court, and, for the reasons set out
above, such material is not considered in this appeal.
Additionally, the brief of the appellants, listed as Manfred Polk and Muriel J. Polk, is filed
by Manfred Polk as “counsel for Defendants/Appellants.” Although the affidavit of Manfred Polk
appears in the record on appeal averring that he is a “member in Good Standing of the New Jersey
Bar Association,” there is no evidence that Manfred Polk is licensed to practice law in Tennessee,
nor has he filed to appear pro hac vice. Therefore, Manfred Polk appears before this Court pro se,
and consideration of Appellants’ brief on appeal is limited to the rights of Manfred Polk. See, Turtle
Creek Apartments v. Polk, 958 S.W.2d 789 (Tenn. Ct. App. 1997)(where, in the appeal of an
unlawful detainer judgment, Manfred Polk and Muriel Polk were listed as the appellants and this
Court cited T.C.A. §§ 23-1-108 and 23-1-109 as establishing that only the rights of Manfred Polk
could be considered on appeal in his capacity as a pro se appellant).
Plaintiff raises on appeal the issue of whether service of process was effected by the General
Sessions detainer warrant, whether the Trial court erred in retaining jurisdiction after Defendant filed
a petition for removal in the United States District Court, whether the Trial Court erred in denying
Defendant’s motion to vacate default judgment, and whether the Trial Court erred in denying
Defendant’s motion for new trial. Defendant attempts to raise four additional issues by restating
these same issues as questions of violation of due process, but neither makes citation to the record
of the Trial Court nor cites any legal authority in support thereof, and these are not considered as
issues properly before this Court. Our standard of review of this non-jury case is de novo, with a
presumption of correctness as to the Trial Court’s findings of fact balanced against the
preponderance of the evidence in the record, with great weight accorded the Trial Court’s findings
of credibility of witnesses. Quarles v. Shoemaker, 978 S.W.2d 551, 552-553 (Tenn. Ct. App. 1998).
Defendant asserts error in that he was not personally served the General Sessions detainer
warrant. In support of his argument, Defendant cites Toler v. City of Cookeville, 952 S.W.2d 831
(Tenn. Ct. App. 1997). Toler is not on point, as it involves a different question concerning service
of process in a medical malpractice action, not the present issue of service of process under the
statutes relating to unlawful detainer. The warrant as returned by the Sheriff appears in the record
bearing the notation, “[s]erved adult male on premises who refused to give name.” Although
Defendant avers that he was not the person served, and filed related motions, affidavits, and other
materials with the Trial Court, service was properly issued and executed under the Tennessee statute
establishing the procedure for service of summons in a detainer action. “In commencing an action
under the provisions of this chapter, summons may be served upon any adult person found in
possession of the premises; and service of process upon such party in possession shall be good and
sufficient to enable the landlord to regain possession of such landlord's property.” T.C.A.§
29-18-115(a). In the General Sessions Court action, Plaintiff sought, and was awarded, the relief
of possession available under this method of service of process.
Although not enumerated by Defendant as a separate issue on appeal, his brief discusses the
next issue to be addressed, that the Circuit Court erred in awarding damages and discretionary costs
in addition to the award of possession that was appealed. First, we must note that it was Defendant
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who appealed the General Sessions award. From the plain wording of T.C.A.§ 29-18-115(a), the
service of process upon an adult found in possession of the premises at issue was “good and
sufficient” to support the award of possession of Plaintiff’s property. When Defendant appealed the
General Sessions Court judgment to Davidson County Circuit Court under the authority of T.C.A.
§§ 29-18-128 and 27-5-108, the appeal was heard as a trial de novo under T.C.A. §§ 16-15-729 and
27-5-108(c).
[C]ases appealed from the general sessions court to the circuit court pursuant to
Tenn.Code Ann. § 16-15-729 should be treated for all purposes as if they originated
in the circuit court. The parties should be permitted to file amended pleadings to the
fullest extent permitted by the Tenn.R.Civ.P. 15 without regard to the general
sessions court's monetary limits. Doing so will promote judicial economy by
enabling the parties to resolve their disputes on the merits in a single proceeding.
Ware v. Meharry Medical College, 898 S.W.2d 181, 196 (Tenn. 1995).
As Defendant’s appeal to Circuit Court opened the door for Plaintiff to amend its Complaint to
include relief not available in the General Sessions proceeding, the Circuit Court acted properly in
awarding Defendant not only possession, but also damages and discretionary costs. The judgment
of the Trial Court as to this issue is affirmed.
Defendant argues that the Trial Court erred in failing to relinquish jurisdiction when he filed
a removal petition in the United States District Court, and avers on appeal that such removal
occurred prior to the General Sessions Court hearing on December 18, 1998. Defendant also argues
that the Trial Court erred by not allowing transfer of the lawsuit to federal court under Davidson
County Local Rules §§ 3.04 and 3.05. These are the local rules of court that govern transfer of
lawsuits from one Davidson County court to another, or from one court division to another, and have
no applicability in removal to federal court. In order to remove a lawsuit originally filed in the
Tennessee courts, the Defendant must meet certain federal procedural requirements.
The procedure for removal is set out in the federal statutes, and states in relevant part:
Promptly after the filing of such notice of removal of a civil action the defendant or
defendants shall give written notice thereof to all adverse parties and shall file a copy
of the notice with the clerk of such State court, which shall effect the removal and the
State court shall proceed no further unless and until the case is remanded.
28 U.S.C. § 1446(d), Procedure for removal.
The steps of this requisite procedure have previously been addressed by Tennessee courts, but
usually in the context of a State court continuing with a case when the procedural requirements for
removal have been met by the defendant or defendants.
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Federal courts have consistently held that the removal of an action to federal court
divests the state court of jurisdiction to take further action. Pursuant to § 1446, "it
has been uniformly held that the state court loses all jurisdiction to proceed
immediately upon the filing of the petition in the federal court and a copy in the state
court." Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1239 (9th
Cir.1994); Moore v. Interstate Fire Insurance, 717 F.Supp. 1193 (S.D.Miss.1989);
South Carolina v. Moore, 447 F.2d 1067, 1073 (4th Cir.1971). "Any further
proceeding in the state court in the removed action, unless and until the case is
remanded, would be a nullity." 1A Moore's Federal Practice § 0.168[3-8-4]. See also,
Caldwell v. Montgomery Ward and Co., 207 F.Supp. 161 (S.D.Texas 1962).
Hood v. Prime Time Rentals, Inc., No. 01A01-9807-CH-352,1999 WL 174138
(Tenn. Ct. App. 1999)(no perm. app. filed).
The reference in Hood to filing a “petition” is now to filing “notice of removal,” reflecting
the changes to 28 U.S.C. § 1446 enacted in 1988, when the prior section (d) was deleted and then-
section (e) was renamed section (d). In this rewriting of the statute, the requirement that a copy of
the removal petition be filed with the clerk of the state court was changed by Congress to the above-
quoted wording in 1446(d) that “written notice” of the removal must be filed with the clerk of the
State court to effectuate removal to federal jurisdiction. See, Blake v. Abbott Laboratories, Inc., 894
F.Supp. 327, 330 (E.D. Tenn. 1995)(discussing that the federal courts have a duty to “guard against”
hearing cases over which removal jurisdiction is improperly invoked).
Although the Blake Court did not address the issue directly, other federal courts have said
that it is the filing of the written notice with the clerk of the State court that effects removal of the
State court’s jurisdiction over the lawsuit.
Although we have never addressed this issue (perhaps we never had occasion to do
so because the statute was clear to litigants), we think that the removal statute leaves
little room for creative interpretation. The only rule that logically follows from 28
U.S.C. § 1446(d) is that removal is effected when the notice of removal is filed with
the state court and at no other time.
Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996).
Defendant did not file notice of removal with the clerk of the Trial Court until May 11, 1999,
when he filed his Motion for New Trial. The notice is in the form of a letter addressed to the clerk
of the U.S. District Court for the Eastern District of Tennessee, bearing the date of December 16,
1998, and references a removal petition and various other materials purportedly filed with the federal
court. Although the copy list at the bottom of the letter lists “Clerk, Metropolitan General Sessions
Court,” the letter does not appear to have been filed with the Trial Court until after final judgment
was entered against Defendant. Removal is not available to an unsuccessful state-court litigant. See,
Bolivar Sand Company, Inc., v. Allied Equipment, Inc., 631 F.Supp. 171, 173 (W.D. Tenn.
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1986)(where notice of removal was not proper after motions for directed verdict and mistrial were
denied by the State court). Defendant did not timely comply with the notice requirements of 28
U.S.C. § 1446(d). Therefore, the Trial Court never lost jurisdiction over this lawsuit. The judgment
of the Trial Court as to this issue is affirmed.
Defendant’s issue alleging error in the action of the Trial Court in denying his motion to
vacate default judgment is not properly on appeal, and is not addressed in this Opinion. There
appears in the record of the Trial Court no motion to vacate default judgment, and the only
motions that could be construed as remotely related to the argument found in Defendant’s brief
concern the legal rights of Muriel J. Polk. As noted above, only the rights of Manfred Polk as a
pro se appellant are considered in this appeal.
Defendant does not identify the basis for his assertion of error in the Trial Court’s denial
of his motion for new trial. Reviewing Defendant’s motion in the record of the Trial Court,
Defendant states no basis for new trial, and attached an affidavit with attachments that also fails
to state any basis for new trial. As Defendant presented no basis upon which the Trial Court
could have granted his motion, there can be no error in denying his motion. The actions of the
Trial Court as to this issue are affirmed.
CONCLUSION
The judgment of the Trial Court is affirmed, and this matter remanded to the Davidson
County Circuit Court for further proceedings as may be required, if any, consistent with this
Opinion, and for collection of costs below. Costs of this appeal are taxed to the Appellant, Manfred
Polk.
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