Brookside Homeowners Association v. Stan Vaught

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 17, 2015 Session

BROOKSIDE HOMEOWNERS ASSOCIATION v. STAN VAUGHT

Appeal from the Circuit Court for Rutherford County

No. 68909 Mitchell Keith Siskin, Judge

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No. M2015-00432-COA-R3-CV- Filed November 13, 2015

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A party who failed to file a de novo appeal of a general sessions judgment filed the instant

petition for writ of certiorari. The trial court dismissed the writ on the grounds that the

petitioner had a “plain, speedy and adequate remedy” provided by Tenn. Code Ann. § 16-15-

727(b), a de novo appeal. We agree and affirm.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which RICHARD H. DINKINS and

W. NEAL MCBRAYER, JJ., joined.

M. Ben Moore, II and Clifton B. Sobel, Jr., Nashville, Tennessee, for the appellant,

Brookside Homeowners Association.

Mark A. Polk, Murfreesboro, Tennessee, for the appellee, Stan Vaught.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Stan Vaught owned property located in a subdivision controlled by Brookside

Homeowners Association (“Brookside”). On May 12, 2014, Brookside filed a civil summons

in general sessions court against Mr. Vaught seeking damages in the amount of $25,000.00

for past due home owners association fees, court courts, interest, late fees, attorney fees, and

other relief. Mr. Vaught was served with the summons. The trial date was continued twice,

once at the request of the plaintiff and once at the request of the defendant.

On July 23, 2014, Brookside appeared in court for the hearing; Mr. Vaught did not

appear.1 The court granted a default judgment against Mr. Vaught in the amount of

$25,000.00. On August 5, 2014, Brookside filed a garnishment with Mr. Vaught‟s employer,

and the garnishment was served on Mr. Vaught‟s employer on August 11, 2014. On August

15, 2014, Mr. Vaught filed a motion to set aside the default judgment in the general sessions

court. The motion was heard on September 24, 2014, and the court granted Mr. Vaught‟s

motion to set aside the default judgment based upon Mr. Vaught‟s lack of notice regarding

the hearing.

Brookside filed a petition for writ of certiorari in the circuit court on November 19,

2014 with the sole issue being whether the general sessions court erred in granting Mr.

Vaught‟s motion to set aside the default judgment. Mr. Vaught filed a motion to dismiss the

writ on December 31, 2014 arguing, in part, that Brookside was only seeking to remedy its

failure to appeal within ten days of the general sessions court‟s decision to set aside the

default judgment. Mr. Vaught further contended that the default judgment was not a final

appealable order because it did not dispose of all claims in light of the fact that there

remained outstanding claims against John Phillips, a co-defendant.

On February 12, 2015, the trial court entered an order dismissing the writ of certiorari

and remanding the case to general sessions court. The court found as follows:

1. That the General Sessions Court set aside the July 23, 2014, default

judgment against Defendant Stan Vaught on September 26, 2014.

2. That pursuant to Tenn. Code Ann. § 16-15-727(b), Plaintiff had ten (10)

days to file a de novo appeal to the Circuit Court of the General Sessions

Court‟s Order setting aside the default judgment.

3. That Plaintiff failed to file an appeal within the ten (10) days as

outlined by Tenn. Code Ann. § 16-15-727(b).

4. That based on Tenn. Code Ann. § 16-15-727(b), Plaintiff had a plain,

speedy and adequate remedy to Tenn. Code Ann. § 16-15-727(b), and as

such the Writ of Certiorari was not proper.

(Emphasis added).

1

Brookside‟s counsel sent a letter to Mr. Vaught‟s counsel on July 10, 2014 advising him of the new

hearing date of July 23, 2014. Mr. Vaught denies receiving this letter. The letter was also filed with the court

clerk. According to Mr. Vaught‟s affidavit, he made repeated phone calls to Brookside‟s counsel inquiring

about the rescheduled court date; Brookside‟s counsel admitted that he intentionally did not return Mr.

Vaught‟s phone calls. Mr. Vaught reports that he was out of the country at the time of the July 23, 2014

hearing.

2

On appeal, Brookside argues that: (1) the general sessions court lacked the authority to

set aside its own judgment after the statutory ten-day period for filing a motion for relief had

run; and (2) the circuit court erred in dismissing Brookside‟s writ of certiorari.

STANDARD OF REVIEW

We review the trial court‟s findings of fact de novo with a presumption of correctness

unless the preponderance of the evidence is otherwise. TENN. R. APP. P. 13(d). We review

questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart Stores,

Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

A court‟s decision to issue or dismiss a writ of certiorari is a discretionary one. Heyne

v. Metro. Nashville Bd. of Educ., 380 S.W.3d 715, 730 (Tenn. 2012); Boyce v. Williams, 389

S.W.2d 272, 277 (Tenn. 1965). Thus, our review of this issue is limited to a determination of

whether the trial court abused its discretion in dismissing the petition. See Ancro Fin. Co. v.

Johnson, No. W2000-02709-COA-R3-CV, 2001 WL 1298913, at *2 (Tenn. Ct. App. Oct. 23,

2001).

A motion to dismiss for failure to state a claim pursuant to Tenn. R. Civ. P. 12.02(6)

challenges the legal sufficiency of the complaint rather than the strength of the plaintiff‟s

proof or evidence. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426

(Tenn. 2011). The motion admits the truth of all averments contained in the complaint but

asserts that such facts do not constitute a cause of action. Id. In considering a motion to

dismiss, a court must liberally construe the complaint, “„presuming all factual allegations to

be true and giving the plaintiff the benefit of all reasonable inferences.‟” Id. (quoting Tigg v.

Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)). The scope of review following the

grant or denial of a motion to dismiss involves a question of law, which we review de novo,

without any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894-

95 (Tenn. 2011).

ANALYSIS

The writ of certiorari is not available as a matter of right, but it is to be granted only in

“unusual or extraordinary circumstances.” Clark v. Metro. Gov’t of Nashville & Davidson

Cnty., 827 S.W.2d 312, 316-17 (Tenn. Ct. App. 1991). Brookside‟s verified petition for writ

of certiorari relies upon Tenn. Code Ann. § 27-8-101 et seq., a codification of the common

law writ of certiorari. See McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990).

Tennessee Code Annotated section 27-8-101 provides, in pertinent part:

The writ of certiorari may be granted whenever authorized by law, and also in

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all cases where an inferior tribunal, board, or officer exercising judicial

functions has exceeded the jurisdiction conferred, or is acting illegally, when,

in the judgment of the court, there is no other plain, speedy, or adequate

remedy.

(Emphasis added). The trial court made an express finding that Brookside had a “plain,

speedy and adequate remedy” in this case—namely, a de novo appeal pursuant to Tenn. Code

Ann. § 16-15-727(b) (quoted in full below).

The writ of certiorari is not to take the place of an appeal when there is an express

provision for an appeal. Tragle v. Burdette, 438 S.W.2d 736, 737 (Tenn. 1969).2 General

sessions courts have only those powers conferred upon them by statute. See Travelers

Indem. Co. v. Callis, 481 S.W.2d 384, 385 (Tenn. 1972). Prior to 2007, general sessions

courts had no power to grant relief from their own judgments except in the case of clerical

mistakes. First Cmty. Fin. Servs. v. Simmons, No. M2010-01597-COA-R3-CV, 2011 WL

2416680, at *2 (Tenn. Ct. App. June 10, 2011). In 2007, the legislature enacted Tenn. Code

Ann. § 16-15-727(b), authorizing general sessions courts to rule on motions for relief from a

judgment pursuant to Tenn. R. Civ. P. 60.02:

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.[3] 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.

2

Tennessee Code Annotated section 27-8-102(3) lists one of the grounds for the writ of certiorari as “a

substitute for appeal.” Pursuant to caselaw, however, this ground is available only if the plaintiff establishes

that the appeal was defeated “1) [b]y the oppressive or erroneous act of the court or justice[;] 2) [b]y the willful

or negligent act of the clerk[;] 3) [b]y the contrivance or procurement of the adverse party[;] 4) [b]y inevitable

accident[;] 5) [b]y the blameless misfortune of the petitioner.” Ancro, 2001 WL 1298913, at *2 (quoting

Uselton v. Price, 292 S.W.2d 788, 794 (Tenn. Ct. App. 1956)). Brookside does not allege any facts that would

fit under any of these categories and does not make an argument under this provision.

3

Pursuant to Tenn. Code Ann. § 27-5-108(a)(1), a party may appeal a general sessions judgment to the

circuit court within ten days.

4

Tenn. Code Ann. § 16-15-727(b) (emphasis added). Under Tenn. Code Ann. § 16-15-727(b),

however, an appeal to circuit court from a general sessions court‟s ruling on a motion for

relief from a judgment must be filed within ten days of the ruling.4

In the present case, Brookside did not file a de novo appeal within ten days of the

general sessions order setting aside the default judgment. That de novo appeal, however, was

the “plain, speedy and adequate remedy” available to Brookside. We find no abuse of

discretion in the trial court‟s decision to dismiss Brookside‟s petition for a writ of certiorari

and remand the matter to the general sessions court for further proceedings.

The failure to perfect a proper appeal to circuit court precludes that court, or this

Court, from examining the general sessions court proceedings.

CONCLUSION

We affirm the decision of the trial court in all respects. Costs of appeal are assessed

against the appellant.

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ANDY D. BENNETT, JUDGE

4

This court has previously stated that the ten-day deadline to appeal to circuit court is jurisdictional.

Cagle v. Cass, No. W2001-00760-COA-R3-CV, 2001 WL 792644, at *3 (Tenn. Ct. App. July 6, 2001). Thus,

if a party fails to file its appeal within ten days of the general sessions court judgment, the circuit court does not

obtain jurisdiction over the appeal. Discover Bank v. McCullough, No. M2006-01272-COA-R3-CV, 2008 WL

245976, at *5 (Tenn. Ct. App. Jan. 29, 2008). Moreover, this court has dismissed untimely appeals from

general sessions courts in cases in which the defendant was served with the summons but asserted a lack of

notice of the case being set for trial or a lack of notice of the default judgment. Hausler v. Discounts R Us, Inc.,

No. M2002-01465-COA-R3-CV, 2003 WL 1092771, at *2 (Tenn. Ct. App. Mar. 13, 2003); Cagle, 2001 WL

792644, at *1.

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