Vanderbilt Mortgage and Finance, Inc. v. Phillip W. Vandergriff

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 8, 2016 Session

VANDERBILT MORTGAGE AND FINANCE, INC. v.

PHILLIP W. VANDERGRIFF ET AL.

Appeal from the Chancery Court for Anderson County

No. 14CH6260 M. Nichole Cantrell, Chancellor

No. E2015-01121-COA-R3-CV-FILED-JUNE 17, 2016

The plaintiff lender filed this action to quiet title to certain real property and regain

possession of said property from its current occupants, one of whom owed a debt to the

lender that originated in 1996. At the time of the making of the indebtedness, the debtor

executed a deed of trust regarding the subject property to secure the debt. The property

was subsequently sold at a delinquent tax sale in 2008. The tax sale purchaser later

conveyed title to the property back to the debtor in 2012. Upon the debtor’s failure to

make timely payments to the lender in 2013, the lender foreclosed on the subject property

pursuant to the 1996 deed of trust. The lender was the highest bidder at the foreclosure

sale and acquired a successor trustee’s deed to the subject property. The trial court

upheld the lender’s ownership interest in the subject property pursuant to this deed and

awarded the lender immediate possession. The debtor and other occupants timely

appealed. Determining that the trial court erred in relying upon the successor trustee’s

deed to establish ownership in the lender, we reverse the trial court’s judgment and

dismiss the lender’s claim.

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

Reversed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Phillip W. Vandergriff, James Vandergriff, Sandy Goodman Vandergriff, and James T.

Higdon, Jacksboro, Tennessee, Pro Se.

Anthony R. Steele, Knoxville, Tennessee, for the appellee, Vanderbilt Mortgage and

Finance, Inc.

OPINION

I. Factual and Procedural Background

This appeal arises from the trial court’s grant of summary judgment to the

plaintiff, Vanderbilt Mortgage and Finance, Inc. (“Vanderbilt”), quieting title and

declaring Vanderbilt the lawful owner entitled to possession of a parcel of real property

located in Anderson County, Tennessee (“the Property”). Title to the Property was

originally acquired by the defendant, Phillip W. Vandergriff, and his former wife, Lisa A.

Vandergriff, by warranty deed dated February 21, 1996. This warranty deed was duly

recorded in the Register’s Office for Anderson County, Tennessee. On March 22, 1996,

the Vandergriffs entered into a “Retail Installment Contract-Security Agreement”

regarding the purchase of a mobile home to be placed upon the Property. They

concomitantly executed a “corrected deed of trust” regarding the Property, securing the

indebtedness to James Clayton, Trustee, for the benefit of CMH Homes, Inc. This

corrected deed of trust was also duly recorded in the register’s office, securing a debt in

the amount of $77,806.74. Vanderbilt asserts without dispute that its attorney, Anthony

R. Steele, subsequently became the successor trustee for the corrected deed of trust,

although such assignment does not appear in the record. In 2005, Lisa Vandergriff

conveyed her interest in the Property via quitclaim deed to Phillip Vandergriff.

In 2008, the Property was sold at a delinquent tax sale by the Anderson County

Clerk and Master to Brian Christiansen. The October 16, 2008 “Decree Confirming

Sale” states:

That all right, title and interest of all the parties to this action, and

especially the Defendants named in the Clerk and Master’s Report of Tax

Sale, and any and all unknown heirs-at-law or devisees or grantees of any

party to this action, lien holders and the like, including those of the above-

named Defendants in and to said parcels of land, be, and the same is,

divested out of them, and each of them, and vested in the purchaser as

shown in the Clerk and Master’s Report of Tax Sale, subject only to the

equity of redemption.

A “Tax Deed Pursuant to Tax Sale” was executed on November 12, 2009, by the Clerk

and Master, conveying the Property to Mr. Christiansen. On February 13, 2012, Mr.

Christiansen executed a quitclaim deed, conveying title to the Property back to Mr.

Vandergriff. Both the tax deed and subsequent quitclaim deed were duly recorded in the

respective register’s office.

2

According to Vanderbilt, throughout the period of Mr. Christiansen’s ownership of

the Property and until May 2013, Mr. Vandergriff continued to tender payments

concerning his indebtedness pursuant to the 1996 promissory note. Following Mr.

Vandergriff’s failure to make payment as due in May 2013, on June 4, 2013, Mr. Steele

sent notice to Mr. Vandergriff that the lender intended to foreclose on the Property

pursuant to the 1996 deed of trust. A non-judicial foreclosure sale was conducted on July

2, 2013, and the successor trustee subsequently executed a deed conveying title to the

Property to Vanderbilt as the highest bidder.

On April 7, 2014, Vanderbilt commenced the instant action by filing a “Verified

Complaint for Declaratory Judgment to Quiet Title and for Possession Upon Unlawful

Detainer of Property” against Mr. Vandergriff “and/or Occupants.” On April 28, 2014,

Mr. Vandergriff; his current wife, Sandy Goodman Vandergriff;1 and his daughter,

Brooke Vandergriff; each self-represented, filed an “Answer and Included

Counterclaim,” asserting that they were occupants of the mobile home situated on the

Property. Mr. Vandergriff also named as a counter-plaintiff and occupant his fifteen-

year-old son, James Vandergriff, with Mr. Vandergriff acting on his son’s behalf. In the

answer and counter-claim, the Vandergriffs alleged, inter alia, that Mr. Vandergriff owed

no debt to Vanderbilt following the tax sale in 2008, and claimed that Mr. Vandergriff

should receive a refund of any monies paid thereafter. The Vandergriffs also asserted

that Vanderbilt had no right to conduct a foreclosure sale regarding the Property. In

response, Vanderbilt filed a motion to dismiss the counter-complaint on May 21, 2014.

Mr. Vandergriff and the other counter-plaintiffs subsequently filed a “Motion for

Appointment of Counsel” and a “Motion for Order to Stay Proceedings” on May 27,

2014.

The trial court dismissed the motion to appoint counsel in an order entered July

31, 2014, while allowing Mr. Vandergriff and the other counter-plaintiffs sixty days to

obtain counsel. Upon the expiration of this sixty-day period, during which neither Mr.

Vandergriff nor any of the counter-plaintiffs obtained counsel, the court set the matter for

hearing. Following a hearing conducted on October 10, 2014, the court granted

Vanderbilt’s motion to dismiss the counter-complaint by its order entered October 24,

2014.

Vanderbilt subsequently filed a motion for summary judgment on April 8, 2015.

Vanderbilt concomitantly filed a statement of material facts and an affidavit of Michael

Domoracki, custodian of records and legal supervisor for Vanderbilt. The Vandergriffs

1

Vanderbilt refers to this party as Sandy Goodman, the manner by which her name is styled in the

counter-complaint and other trial court pleadings. The appellants’ brief, however, lists as one of the pro

se parties submitting and signing the brief, “Sandy Goodman Vandergriff, Spouse.” Therefore, we will

refer to her as Sandy Goodman Vandergriff throughout this opinion.

3

filed no response. Following a hearing conducted on May 18, 2015, the trial court

granted summary judgment in favor of Vanderbilt. By written order dated June 10, 2015,

the court found, inter alia, that no genuine issues of material fact were before the trial

court, and that the deeds filed as exhibits to the complaint reflected a clear and consistent

chain of title. The court noted that at the time of the foreclosure sale by Vanderbilt, Mr.

Vandergriff had regained ownership of the Property. The court also found that the

foreclosure sale was properly conducted. The court therefore concluded that the Property

“legally came into the hands of Vanderbilt” when the successor trustee’s deed was

executed following the foreclosure sale and that accordingly Vanderbilt held clear title to

the Property. The court ordered that Vanderbilt was entitled to immediate possession.

Notices of appeal were filed by Mr. Vandergriff, Sandy Goodman Vandergriff,

James Vandergriff, and James T. Higdon (collectively, “the Appellants”).2 Following the

docketing of the appeal, various pleadings have been filed in this Court. Of note, one

motion has been deferred to the panel deciding the case. On January 21, 2016, the

Appellants filed a pleading entitled “Miscellaneous Motion – Notice for Transparency

and Allocation of Fees,” essentially accusing Vanderbilt of fraud in filing its motion to

dismiss and other appellate motions. The Appellants, in addition to repeating their

requests for relief on appeal, request that all costs on appeal be awarded to them.

II. Issues Presented

The Appellants’ brief appears to raise the following issue for our review, as we

have restated it:

1. Whether the trial court erred by finding that Vanderbilt possessed

clear title of ownership to the Property, such that the trial court’s

grant of summary judgment was improper.

Vanderbilt raises the following additional issue, which we have also restated slightly:

2. Whether this appeal should be dismissed as to James T. Higdon,

Sandy Goodman Vandergriff, and James Vandergriff for lack of

standing.

III. Standard of Review

The grant or denial of a motion for summary judgment is a matter of law;

therefore, our standard of review is de novo with no presumption of correctness. See Rye

v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick

2

A notice of appeal was the first pleading filed in the case at bar by Mr. Higdon.

4

Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013)

(citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court

must “make a fresh determination of whether the requirements of Rule 56 of the

Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250. As

our Supreme Court has explained concerning the requirements for a movant to prevail on

a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56:

[W]hen the moving party does not bear the burden of proof at trial, the

moving party may satisfy its burden of production either (1) by

affirmatively negating an essential element of the nonmoving party’s claim

or (2) by demonstrating that the nonmoving party’s evidence at the

summary judgment stage is insufficient to establish the nonmoving party's

claim or defense. We reiterate that a moving party seeking summary

judgment by attacking the nonmoving party’s evidence must do more than

make a conclusory assertion that summary judgment is appropriate on this

basis. Rather, Tennessee Rule 56.03 requires the moving party to support

its motion with “a separate concise statement of material facts as to which

the moving party contends there is no genuine issue for trial.” Tenn. R.

Civ. P. 56.03. “Each fact is to be set forth in a separate, numbered

paragraph and supported by a specific citation to the record.” Id. When

such a motion is made, any party opposing summary judgment must file a

response to each fact set forth by the movant in the manner provided in

Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made

[and] . . . supported as provided in [Tennessee Rule 56],” to survive

summary judgment, the nonmoving party “may not rest upon the mere

allegations or denials of [its] pleading,” but must respond, and by affidavits

or one of the other means provided in Tennessee Rule 56, “set forth specific

facts” at the summary judgment stage “showing that there is a genuine issue

for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must do more

than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co., 475 U.S. [574,] 586, 106 S.Ct. 1348

[1986]. The nonmoving party must demonstrate the existence of specific

facts in the record which could lead a rational trier of fact to find in favor of

the nonmoving party. If a summary judgment motion is filed before

adequate time for discovery has been provided, the nonmoving party may

seek a continuance to engage in additional discovery as provided in

Tennessee Rule 56.07. However, after adequate time for discovery has

been provided, summary judgment should be granted if the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.

56.04, 56.06. The focus is on the evidence the nonmoving party comes

5

forward with at the summary judgment stage, not on hypothetical evidence

that theoretically could be adduced, despite the passage of discovery

deadlines, at a future trial.

Rye, 477 S.W.3d at 264-65 (emphasis in original). Pursuant to Tennessee Rule of Civil

Procedure 56.04, the trial court must “state the legal grounds upon which the court denies

or grants the motion” for summary judgment, and our Supreme Court has instructed that

the trial court must state these grounds “before it invites or requests the prevailing party

to draft a proposed order.” See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316

(Tenn. 2014).

Additionally, as this Court has explained with regard to pro se litigants:

Parties who decide to represent themselves are entitled to fair and

equal treatment by the courts. The courts should take into account that

many pro se litigants have no legal training and little familiarity with the

judicial system. However, the courts must also be mindful of the boundary

between fairness to a pro se litigant and unfairness to the pro se litigant’s

adversary. Thus, the courts must not excuse pro se litigants from

complying with the same substantive and procedural rules that represented

parties are expected to observe.

The courts give pro se litigants who are untrained in the law a certain

amount of leeway in drafting their pleadings and briefs. Accordingly, we

measure the papers prepared by pro se litigants using standards that are less

stringent than those applied to papers prepared by lawyers.

Pro se litigants should not be permitted to shift the burden of the

litigation to the courts or to their adversaries. They are, however, entitled

to at least the same liberality of construction of their pleadings that Tenn.

R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the

courts cannot create claims or defenses for pro se litigants where none exist,

they should give effect to the substance, rather than the form or

terminology, of a pro se litigant’s papers.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (internal citations

omitted).

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IV. Standing

Vanderbilt contends that the parties identified by Mr. Vandergriff as additional

counter-plaintiffs in the counter-complaint, namely Sandy Goodman Vandergriff and

James Vandergriff, were dismissed from this action by the trial court’s October 24, 2014

order dismissing the counter-complaint, while conceding that they “were once parties.”

Vanderbilt further asserts that James Higdon was never named as a party to this action

prior to his filing a notice of appeal of the final judgment. Vanderbilt therefore posits as

a threshold matter that these parties, Sandy Goodman Vandergriff, James Vandergriff (a

minor), and James T. Higdon, do not have standing to appeal and should be dismissed

from the appeal.3

In their reply brief, the Appellants respond to Vanderbilt’s standing argument by

quoting from the trial court’s October 24, 2014 order as follows:

[T]he Counterclaim is DISMISSED, and the following parties are hereby

DISMISSED from this proceeding: CLAYTON ENTERPRISE, CMH

HOMES, INC., LUV HOME, LUV HOMES LOT #50, WINCHESTER,

SELLERS, FOSTER & STEELE, P.C., ANTHONY R. STEELE, JAMES

L. CLAYTON, KAIT COWAN, KENIT W. KINSZ, AND KYLE RAY.

As the Appellants point out and contrary to Vanderbilt’s assertion, the trial court did not

expressly dismiss Sandy Goodman Vandergriff and James Vandergriff as parties to the

action in its order.4 Furthermore, we determine that an analysis of the requisite elements

supporting standing would militate in favor of the Appellants. This Court has explained

the elements constituting standing as follows:

In order to establish standing, a party must demonstrate three essential

elements. First, the party must demonstrate that it has suffered an injury

which is “distinct and palpable,” Metropolitan Air Research Testing Auth.,

Inc., 842 S.W.2d [611,] 615 [(Tenn. Ct. App. 1992)], and not conjectural or

hypothetical. Second, the party must establish a causal connection between

that injury and the conduct of which he complains. Third, it must be likely

that a favorable decision will redress that injury.

3

Brooke Vandergriff was also identified as an occupant and named as a counter-plaintiff, but she did not

file a notice of appeal.

4

In the instant action, no issue was raised in the trial court, nor has an issue been presented on appeal,

regarding whether Sandy Goodman Vandergriff and James Vandergriff were properly made parties. We

therefore shall not address that subject in this appeal.

7

Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn. Ct. App. 2002) (additional

internal citations omitted).

The record reveals that Sandy Goodman Vandergriff and James Vandergriff, as

occupants of the Property, arguably suffered a distinct and palpable injury as a result of

the trial court’s grant of immediate possession of the Property to Vanderbilt, an injury

that would be redressed if this Court found in the Appellants’ favor. See Petty, 91

S.W.3d at 767. To rule that Sandy Goodman Vandergriff and James Vandergriff have no

standing in this action would deprive them of due process to seek relief from the

judgment. We conclude that the requisite elements of standing have been met with

regard to James Vandergriff and Sandy Goodman Vandergriff.

By contrast, no mention is made in the record of Mr. Higdon until his filing of a

notice of appeal. Furthermore, Mr. Higdon was not alleged to be an occupant of the

Property. Rather, it appears from the Appellants’ brief that Mr. Vandergriff may have at

one time sought to convey the Property to Mr. Higdon and his wife. Among the many

documents that the Appellants assert the trial court should have reviewed before reaching

its judgment is a quitclaim deed allegedly conveying title to the Property from Mr.

Vandergriff to James T. Higdon and his wife, Jeanne Higdon. The Appellants state that

this quitclaim deed was recorded with the Anderson County Register of Deeds and a copy

provided to Vanderbilt’s counsel, Mr. Steele. They do not, however, specify dates of

execution or recordation for this quitclaim deed, and the deed does not appear in the

record. In any event, Mr. Higdon was never joined as a party before the trial court, and

we see no basis in this record upon which to join him as a party on appeal. See Tenn. R.

App. P. 19(e). We therefore determine that Mr. Higdon is without standing and therefore

not a party to this appeal.

V. Grant of Summary Judgment

The Appellants argue that summary judgment was improperly granted to

Vanderbilt for a number of reasons. Among their assignments of error on appeal is that

the trial court would not permit testimony during the hearing concerning Vanderbilt’s

motion for summary judgment. In particular, the trial court apparently asked Mr. Higdon

to leave the courtroom because he was attempting to testify. The Appellants also insist

that the trial court erred by not demanding to view a long list of “administrative records.”

However, it was the Appellants’ responsibility as non-movants to file materials they

wished the trial court to consider as supporting any genuine issue of material fact to be

tried. See Tenn. R. Civ. P. 56.03. The Appellants filed no response to the motion for

summary judgment.

Tennessee Rule of Civil Procedure 56.03 provides in pertinent part:

8

Any party opposing the motion for summary judgment must, not

later than five days before the hearing, serve and file a response to each fact

set forth by the movant either (i) agreeing that the fact is undisputed, (ii)

agreeing that the fact is undisputed for purposes of ruling on the motion for

summary judgment only, or (iii) demonstrating that the fact is disputed.

Each disputed fact must be supported by specific citation to the record.

Such response shall be filed with the papers in opposition to the motion for

summary judgment.

In addition, the non-movant’s response may contain a concise

statement of any additional facts that the non-movant contends are material

and as to which the non-movant contends there exists a genuine issue to be

tried. Each such disputed fact shall be set forth in a separate, numbered

paragraph with specific citations to the record supporting the contention

that such fact is in dispute.

Tennessee Rule of Civil Procedure 56.04 provides, inter alia, that summary judgment

“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.”

Vanderbilt contends that the trial court properly granted summary judgment

because “[a]most every material fact in this matter is evidenced by and is in substance a

document that is registered and recorded in the Anderson Co. Register of Deeds Office.”

Vanderbilt concedes, however, that when Mr. Christiansen purchased the Property

through the tax sale, Mr. Christiansen owned the Property free and clear of the lien

Vanderbilt had maintained against the Property. See Tenn. Code Ann. § 67-5-2504(b)

(Supp. 2015) (“A tax deed of conveyance or an order confirming the sale shall be an

assurance of perfect title to the purchaser of such land.”); see also Metro. Gov’t of

Nashville v. Brown, No. M2008-02495-COA-R3-CV, 2009 WL 5178418 at *5 (Tenn. Ct.

App. Dec. 30, 2009) (holding that purchasers were assured of “perfect title” when they

purchased the property at the delinquent tax sale). Mr. Vandergriff contends that

Vanderbilt lost its lien on the Property by virtue of the tax sale and had no right to

subsequently foreclose thereon.

Vanderbilt argues, however, that when Mr. Christiansen conveyed the Property

back to Mr. Vandergriff on February 13, 2012, Vanderbilt’s lien on the title to the

Property with regard to Mr. Vandergriff’s debt once again became enforceable.

Vanderbilt cites and relies upon a 2008 opinion issued by the Tennessee Attorney

9

General as interpreting Tennessee Code Annotated § 67-5-2504(b) as having the effect of

extinguishing all junior liens to property once title vests in a tax sale purchaser. See

Tenn. Op. Atty. Gen. No. 08-86, 2008 WL 1258094 (citing Obion Cty., for Use & Benefit

of N. Fork Drainage Dist. No. 2 v. Massengill, 151 S.W.2d 156, 158 (Tenn. 1941))

(affirming termination of lien for special assessment upon tax sale). Vanderbilt asserts

that because Mr. Vandergriff was not the tax sale purchaser, the tax sale did not

extinguish his previous consensual lien. Vanderbilt also argues that because it never

released the 1996 deed of trust, the lien created by such instrument reattached to the

Property when Mr. Vandergriff reacquired it. We disagree with both of these

contentions.

The lien on title to the Property in Vanderbilt’s favor, created by the 1996 deed of

trust, was extinguished in 2008 when the Property was sold at the tax sale. See Tenn.

Code Ann. § 67-5-2504(b); Obion Cty.,151 S.W.2d at 158 (holding that “the lien of the

State, county and municipality is superior to all others” and that a purchaser of land at a

tax sale acquires the land free from junior liens); Metro. Gov’t of Nashville, 2009 WL

5178418 at *5. The appellant drainage district argued in Obion County that it could not

be bound by the tax sale because it was not a party to the delinquent tax action and its

lien was not referenced therein. See Obion Cty.,151 S.W.2d at 158. The Supreme Court

upheld the trial court’s ruling that the purchaser at the tax sale obtained the land free of

subordinate liens, further elucidating that the tax sale conveyance could only be

invalidated if the land was not liable for the taxes or if the taxes had been paid.5 Id. As

the Court explained, “a tax sale is a proceeding in rem and [] interested parties are bound

by actual or constructive notice.” Id. Furthermore, the Court affirmed the trial court’s

ruling that such clear title passed to any subsequent purchaser of the land. Id.

5

We note that Tennessee Code Annotated § 67-5-2504(b) now provides:

A tax deed of conveyance or an order confirming the sale shall be an assurance of perfect

title to the purchaser of such land, and no such conveyance shall be invalidated in any

court, except by proof that the land was not liable to sale for taxes, or that the taxes for

which the land was sold have been paid before the sale or that there was substantial

noncompliance with mandatory statutory provisions relating to the proceedings in which

the parcel was sold; and if any part of the taxes for which the land was sold is illegal or

not chargeable against it, but a part is chargeable, that shall not affect the sale, nor

invalidate the conveyance thereunder, unless it appears that before the sale the amount

legally chargeable against the land was paid or tendered to the county trustee, and no

other objection either in form or substance to the sale or the title thereunder shall avail in

any controversy involving them. An action seeking to invalidate any tax title to a parcel

shall allege specific facts establishing the grounds set out herein and proof of compliance

with subsection (c) prior to the filing of the complaint.

10

Vanderbilt attempts to draw a distinction based upon the facts in this case because

Mr. Vandergriff had consented to placing a lien on title to the Property prior to the tax

sale. Vanderbilt’s assertion is that when Mr. Vandergriff reacquired the Property

following the tax sale, Vanderbilt’s lien would reattach, just as a judgment lien would

attach to after-acquired property of the judgment debtor. We find this argument to be

unavailing. Based upon Tennessee Code Annotated § 67-5-2504(b) and the Supreme

Court’s holding in Obion, any lien created prior to the tax sale was extinguished by the

tax sale. See Obion Cty.,151 S.W.2d at 158. Vanderbilt has presented no authority

demonstrating that a junior lien can be revived or reattached following a tax sale. By

contrast, a judgment lien is a creature of statute, such statute being codified at Tennessee

Code Annotated § 25-5-101 (Supp. 2015), wherein it is stated:

[J]udgments and decrees obtained from and after July 1, 1967, in any court

of record and judgments in excess of five hundred dollars ($500) obtained

from and after July 1, 1969, in any court of general sessions of this state

shall be liens upon the debtor’s land from the time a certified copy of the

judgment or decree shall be registered in the lien book in the register’s

office of the county where the land is located. If such records are kept

elsewhere, no lien shall take effect from the rendition of such judgments or

decrees unless and until a certified copy of the same is registered as

otherwise provided by law.

Therefore, based on the express statutory language, a judgment lien requires the rendition

of a judgment or decree by a court. See Tenn. Code Ann. § 25-5-101(b)(1). Vanderbilt

had not obtained such a judgment or decree at the time of the non-judicial foreclosure

sale in this matter and therefore did not possess a judgment lien that would automatically

attach to Mr. Vandergriff’s property pursuant to the statute.6 Although Mr. Vandergriff’s

debt to Vanderbilt based on the parties’ agreement contained in the “Retail Installment

Contract-Security Agreement” does not appear to have been extinguished, Vanderbilt did

not have the authority to foreclose on the Property based upon a lien rooted in the 1996

deed of trust because such lien was extinguished at the time of the tax sale. Any

subsequent deed conveying the Property to Vanderbilt based upon such improper

foreclosure sale would therefore be a nullity. We conclude that the trial court erred in

upholding Vanderbilt’s ownership interest based on the invalid foreclosure sale and

resultant successor trustee’s deed conveying the property to Vanderbilt. We therefore

reverse the trial court’s grant of summary judgment in favor of Vanderbilt as a matter of

law and dismiss Vanderbilt’s claim of ownership and possession based upon the invalid

successor trustee’s deed.

6

Nothing in this opinion should be construed as holding that Vanderbilt is in any way precluded from

seeking such a judgment lien against Mr. Vandergriff based upon the “Retail Installment Contract-

Security Agreement.”

11

VI. Attorney’s Fees/Costs on Appeal

Both parties have sought an award of attorney’s fees and/or costs on appeal;

however, this issue was not properly raised in the statement of the issues in either

principal brief. As our Supreme Court has elucidated:

Appellate review is generally limited to the issues that have been presented

for review. Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353

(Tenn. 2007). Accordingly, the Advisory Commission on the Rules of

Practice and Procedure has emphasized that briefs should “be oriented

toward a statement of the issues presented in a case and the arguments in

support thereof.” Tenn. R. App. P. 27, advisory comm’n cmt.

Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012); see also Culpepper v. Culpepper,

No. E2014-00815-COA-R3-CV, 2015 WL 6735909 at *5-6 (Tenn. Ct. App. Nov. 4,

2015). Therefore, both requests for attorney’s fees and/or costs on appeal are denied.7

VII. Conclusion

For the foregoing reasons, the trial court’s order granting summary judgment in

favor of Vanderbilt is reversed. Vanderbilt’s claim of ownership and possession based

upon the invalid successor trustee’s deed is dismissed. James T. Higdon is determined to

be without standing in this appeal. Furthermore, both requests for attorney’s fees and/or

costs on appeal are denied. Costs on appeal are assessed to the appellee, Vanderbilt

Mortgage and Finance, Inc. This case is remanded to the trial court, pursuant to

applicable law, for collection of costs assessed below.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

7

To the extent that the Appellants’ “Miscellaneous Motion,” filed during the pendency of this appeal,

seeks any additional relief beyond costs, such motion is denied.

12