IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 20, 2015 Session
TOMMY BURNEY HOMES v. WAYNE K. FRANCIS
Appeal from the Circuit Court for Montgomery County
No. MCCCCVGS131012 John H. Gasaway, III, Judge
No. M2014-00729-COA-R3-CV – Filed August 12, 2015
Plaintiff filed a detainer warrant to regain possession of property and for unpaid rent; the
warrant was served upon the father of the purported lessee. The General Sessions Court
initially entered a default judgment, allowing Plaintiff to regain possession of the
property; several months later the court entered a default judgment for damages against
the purported lessee. Eight years later Plaintiff sought to execute on the judgment by
issuing a garnishment. The judgment debtor moved to quash the garnishment and to set
aside the money judgment on the ground that there was no personal service on any
defendant and that the money judgment had not been entered against the judgment
debtor. The court granted the motion and held that the judgment was void; Plaintiff
appealed to Circuit Court. After a hearing, the Circuit Court reinstated the money
judgment; the lessee appeals. Holding that the lessee was not properly served for
purposes of entry of a default judgment for money, we reverse the ruling of the Circuit
Court and dismiss the case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Case Dismissed.
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P. J., M. S., and ANDY D. BENNETT, J., joined.
Robert T. Bateman, Clarksville, Tennessee, for the appellant, Robert Wayne Francis.
Mart G. Fendley, Clarksville, Tennessee, for the appellee, Tommy Burney Homes.
OPINION
Tommy Burney Homes (APlaintiff@) filed a detainer warrant in the General
Sessions Court for Montgomery County on June 7, 2004, naming as defendant “Wayne
K. Francis,” and seeking to recover the possession of property located at 151 Village
Way, Clarksville, Tennessee.1 Plaintiff also sought a money judgment for rent, damages,
attorney fees, and court costs; the amount stated on the warrant was “$4,266.75 plus
contract damages.” The return of service recorded on the warrant, dated June 12, recites:
“Served by reading and leaving a copy with Defendant Father same household.”
On July 7, 2004, the court entered a default judgment for possession of the
property; the warrant recites that hearings on damages were set for August 11, September
8, and October 6. The warrant shows that a default judgment awarding $9,844.16 in
damages was entered on October 6, 2004.
On December 12, 2012, a garnishment was issued and served on Turner
Construction Company, naming “Wayne K. Francis” as garnishee, seeking to collect the
total sum of $17,760.89, which represented the judgment amount of $9,844.16 plus
$7,916.73 in interest. Although not reflected in the record, Appellant states in his brief
on appeal that “the garnishment was sent to the employer of Robert Wayne Francis. The
employer refused to honor the garnishment because the Defendant/Garnishee’s name did
not match the name of their employee, Robert Wayne Francis.” A second garnishment
was issued on March 6, 2013, naming “Wayne Francis” as garnishee. Son moved to
quash the garnishment and to set aside the default judgment on the grounds that he was
never served with process and that the judgment was not against him, but against “Wayne
K. Francis”; the court granted the motion on April 17 and Plaintiff appealed to the Circuit
Court for Montgomery County.
Following a hearing2, the Circuit Court reversed the decision of the General
1
There is no person involved in this suit named “Wayne K. Francis”; rather, that name has been
erroneously used by Plaintiff in various respects. The captions of the case in the General Sessions Court
and the Circuit Court identify “Wayne K. Francis” as the defendant. Robert Wayne Francis appeared and
filed a pleading in General Sessions Court; the record does not contain an appearance of or any pleadings
filed by Robert Wayne Francis in the Circuit Court, although he testified at a hearing in that court. Robert
Clayton Francis, who Robert Wayne Francis testified is his father, has not entered an appearance at any
court level, in person or by counsel, in this proceeding. In this opinion we shall refer to Robert Clayton
Francis as “Father” and Robert Wayne Francis as “Son” unless otherwise noted.
2
The purpose of the hearing in Circuit Court is not apparent from the record. The only Circuit Court
document contained in the technical record is the Memorandum Opinion and Final Judgment, which
describes that the case came on for hearing “upon the appeal by the Plaintiff from the decision of the
General Sessions Court declaring the judgment described herein was void.” The court proceeded to make
findings of fact relative to the procedural history of the case in General Sessions Court and conclusions of
law relative to the April 17, 2013 decision of the General Sessions Court holding the judgment void. The
2
Sessions Court and reinstated the October 6, 2004 money judgment; the court held that
jurisdiction of the General Sessions Court to review the validity of the judgment was
governed by Tenn. Code Ann. § 16-15-727 and that the motion to quash and to set aside
the default judgment was untimely because it was filed more than ten days after the entry
of the judgment. Son appeals.
Our review of questions of law is de novo without a presumption of correctness
afforded to the trial court’s conclusions. Union Carbide Corp. v. Huddleston, 854 S.W.2d
87, 91 (Tenn. 1993). The trial court’s findings of fact are reviewed de novo with a
presumption of correctness, unless the preponderance of the evidence is otherwise. Id.;
Tenn. R. App. P. 13(d).
DISCUSSION
The first issue we address is the validity of the money judgment entered in General
Sessions Court and whether it is a judgment against Son; he contends that original money
judgment was void because he was not personally served with process and because he
was never known as Wayne K. Francis.
Tenn. Code Ann. § 29-18-115 governs service of process in forcible entry and
detainer actions; § 29-18-115(a)(1) states in pertinent part:
In commencing an action under 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.
This statute permits service on an adult “found in possession of the premises” where a
named party cannot be personally served; it is sufficient only for purposes of entry of a
judgment for possession. 1 Lawrence A. Pivnick, Tenn. Cir. Ct. Prac. § 9:24 (2014); see
also B & G Const., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn. Ct. App. 2000).
transcript of the Circuit Court hearing shows that counsel for Plaintiff first advised the court that Plaintiff
sought to appeal the April 17 decision and proceeded to argue the merits of his contention that the
decision should be reversed. In response, counsel for Defendant contended that the General Sessions
Court correctly set aside the judgment because the court found that “there was no service of process and
also it’s the wrong named defendant.” Counsel for Defendant further advised the court that Plaintiff had
initiated the Circuit Court proceeding by filing a “Notice of Appeal and Petition for Certiorari”; that
Defendant had filed a motion to dismiss “the part that relates to the Petition for Certiorari because it was
not served”; and that Plaintiff had filed a Notice of Nonsuit as to the certiorari but no order had been
entered. The materials relating to the certiorari petition are not in the record before us and, consequently,
are not a part of our consideration of the issues in this appeal. It is apparent that the parties and the
Circuit Court proceeded to address the General Sessions Court’s original entry of the money judgment
and ruling on the Defendant’s motion to set the judgment aside rather than try the case de novo; inasmuch
as both parties have proceeded in this manner, we shall resolve the issues as presented by the parties.
3
The return of service on the detainer warrant states that “Defendant Father” was
served. Son acknowledged at the Circuit Court hearing that Father’s signature was on the
bottom of the detainer warrant; Son does not otherwise contend that service on Father
was not sufficient service for the purposes of Tenn. Code Ann. § 29-18-115. While we
agree that service on Father was sufficient for Plaintiff to regain possession of the
property, we must make reference to another statute to consider whether service on Son
was achieved for purposes of securing a money judgment against him.
Tenn. Code Ann. § 16-15-903(1) governs service of process in General Sessions
Courts and states that service may be made:
Upon an individual other than an unmarried infant incompetent person, by
delivering a copy of the warrant, writ or other papers to the individual
personally, or if the individual evades or attempts to evade service, by
leaving copies of the warrant, writ or other papers at the individual’s
dwelling house or usual place of abode with some person of suitable age
and discretion then residing in the dwelling house or usual place of abode,
whose name shall appear on the proof of service, or by delivering the
copies to an agent authorized by appointment or by law to receive service
on behalf of the individual served.
Service of process is “an essential step in a proceeding.” Yousif v. Clark, 317 S.W.3d
240, 246 (Tenn. Ct. App. 2010) (citing Watson v. Garza, 316 S.W.3d 589, 593 (Tenn. Ct.
App. 2008)). Thus, “[t]he record must establish that the plaintiff complied with the
requisite procedural rules . . . .” Id.
At the hearing in Circuit Court, Son testified as follows with respect to his being
personally served with the warrant:
Q. I’m going to show you a copy of the civil warrant filed in this matter
***
Q. Do you see where that indicates that it was served on defendant father?
A. Yes.
Q. Did you ever receive a copy of that civil warrant?
A. I did not.
Q. Is that your father’s signature on the bottom lower right-hand?
A. It is.
Q. Did your father ever tell you about that document?
A. He did not.
***
Q. Was the first time that you were aware of -- that any lawsuit had been
4
filed against you when you received a -- when your employer received a
motion -- I mean, a notice of garnishment?
A. Yes, I was completely unaware of any service or any lawsuit up until
that point.
Q. Have you ever signed any documents with the name Wayne K. Francis?
A. No.
Son’s testimony establishes that he was not personally served with process; there
was no evidence at the hearing that contradicted the quoted testimony or otherwise
demonstrated that Son had been personally served in accordance with Tenn. Code Ann. §
16-15-903(1). Further, there was no evidence that Son had evaded personal service,
which would allow for service on Father to be effective, or that Father was Son’s agent,
with authority to accept service on his behalf. “[N]otice by service of process in a
manner provided by law is essential to give the trial court personal jurisdiction over the
parties, and without jurisdiction, judgment against a defendant who is not before the court
is void and subject to attack.” Yousif, 317 S.W.3d at 246 (citing In re Estate of Graham,
No. 85-114-II, 1986 WL 3156 (Tenn. Ct. App. Mar. 12, 1986)).
In reliance on Tenn. Code Ann. § 16-15-7273, Plaintiff argues that Son’s motion to
quash and set aside the October 6, 2004 judgment which was filed in General Sessions
Court was untimely because it was not filed within 10 days of the default judgment. As
set forth above, service of process in a manner provided by law must be achieved in order
for a court to have jurisdiction to enter a judgment against a defendant. The record does
not demonstrate that Son was personally served in a manner which complied with Tenn.
Code Ann. § 16-15-903(1); thus, the court lacked jurisdiction over Son in order to render
a money judgment against him. The judgment so entered was void.
The October 6, 2004 judgment against Son is also problematic because the
uncontradicted proof is that he was not and was never known as “Wayne K. Francis.”
3
Tenn. Code Ann. § 16-15-727 states:
(a) Tenn. R. Civ. P. 60.01, regarding clerical mistakes, shall apply to all courts of general
sessions. The general sessions judge shall have the authority under the same
circumstances and in the same manner as is provided in Tenn. R. Civ. P. 60.01 to correct
such mistakes.
(b) Tenn. R. Civ. P. 60.02, regarding mistakes, inadvertence, excusable neglect, fraud and
other similar reasons set out in that rule, shall apply to all courts of general sessions. A
motion under the general sessions court’s authority under Tenn. R. Civ. P. 60.02 shall be
filed within ten (10) days of the date of judgment. Once filed, the motion shall toll the
ten-day period for seeking de novo review in the circuit court until the determination of
the motion is concluded. Thereafter, an appeal for de novo review in the circuit court
shall be filed within ten (10) days of the general sessions court’s ruling on the motion to
relieve a party or the parties’ legal representative from a final judgment, order or
proceeding in the same manner as provided in Tenn. R. Civ. P. 60.02.
5
The record does not show that Plaintiff sought to amend the complaint in the Circuit
Court to add Son as a party or to try de novo the case filed in General Sessions Court.
The judgments in General Sessions Court and Circuit Court were entered against “Wayne
K. Francis” and, on the state of the record before the Circuit Court and this court, is not a
valid judgment against Son.
Plaintiff also argues that Tenn. Code Ann. § 16-15-7284 requires the presumption
that the proceedings in which the General Sessions court granted Plaintiff a default
judgment were sufficient and valid, and that the “decision to grant this monetary
judgment is res judicata” because the General Sessions court did not have the authority to
review its prior judgment. This argument is without merit. “[A] void judgment is one
that is invalid on its face because the issuing court either lacked subject matter
jurisdiction or personal jurisdiction over the proceedings . . . .” Hood v. Jenkins, 432
S.W.3d 814, 825 (Tenn. 2013) (citing Gentry v. Gentry, 924 S.W. 2d 678, 680 (Tenn.
1996)).
CONCLUSION
For the foregoing reasons, the judgment of the circuit court is reversed; the case is
remanded with instructions to enter a new judgment affirming the April 17, 2013
judgment of the General Sessions Court and dismissing Plaintiff’s appeal from that
judgment.
_______________________________
RICHARD H. DINKINS, JUDGE
4
Tenn. Code Ann. § 16-15-726 provides:
Every intendment is in favor of the sufficiency and validity of proceedings before general
sessions courts, when brought in question, either directly or collaterally, in any of the
courts, where it appears on the face of the proceedings that the general sessions court had
jurisdiction of the subject matter and of the parties.
6