Theophilus Ebulueme v. Fred E. Onoh

05/24/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 2, 2019 Session

THEOPHILUS EBULUEME v. FRED E. ONOH

Appeal from the Circuit Court for Montgomery County

No. MC CC CV 15-1403 Ross H. Hicks, Judge

No. M2018-00742-COA-R3-CV

The Circuit Court for Montgomery County (“the Trial Court”) entered a default judgment

in favor of Theophilus Ebulueme (“Plaintiff”) in this breach of contract action. Fred E.

Onoh (“Defendant”) filed a motion pursuant to Tenn. R. Civ. P. 60 to vacate the

judgment asserting that Defendant was not properly served and never received notice of

the suit. The Trial Court denied the Rule 60 motion. Defendant appealed to this Court.

We find and hold that Plaintiff did not achieve personal service and that the service by

publication that was attempted was improper. As such, Plaintiff failed to properly serve

Defendant rendering the default judgment void. We, therefore, vacate the Trial Court’s

August 7, 2017 order granting a default judgment and the Trial Court’s order denying

Defendant’s Rule 60 motion.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J. M.S. and ANDY D. BENNETT, J., joined.

James W. Cobb, Kaleigh Rose Thacker, and Anthony Adewumi, Madison, Tennessee, for

the appellant, Fred E. Onoh.

R.W. Shick, Jr., Gallatin, Tennessee, for the appellee, Theophilus Ebuleme.

OPINION

Background

In July of 2015, Plaintiff filed his complaint against Defendant alleging breach of

a contract with regard to a loan to purchase a semi-truck. In May of 2017, Plaintiff filed

a motion for a default judgment alleging that Plaintiff unsuccessfully had attempted to

serve process upon Defendant at his usual place of abode in Nashville in Davidson

County on nineteen occasions. On the nineteenth attempt, the process server posted the

summons and complaint on the door of the abode. After the unsuccessful attempts at

personal service, Plaintiff attempted service by publication in the Clarksville Leaf

Chronicle, which is distributed primarily in Montgomery County. After the publication

and upon motion by the Plaintiff, the Trial Court entered an order on August 7, 2017

granting a default judgment against Defendant in the amount of $45,000.

In December of 2017, Defendant filed a motion pursuant to Tenn. R. Civ. P. 60

seeking to vacate the default judgment alleging that Defendant was unaware of the suit

until he received a letter from Plaintiff’s attorney informing him that a judgment had been

taken against him. Defendant supported his motion with his affidavit in which he

asserted that he never was properly served and that the address where Plaintiff had

attempted to serve him in Nashville indeed was Defendant’s address.

The Trial Court denied Defendant’s Rule 60 motion by order entered April 3,

2018. Defendant appeals to this Court.

Discussion

Although not stated exactly as such, Defendant raises one dispositive issue on

appeal: whether the Trial Court erred in denying his Rule 60 motion to vacate based upon

the fact that Defendant never was served properly. Defendant filed his motion pursuant

to Tenn. R. Civ. P. 60.02(3) alleging that the default judgment was void and Tenn. R.

Civ. P. 60.02(5) alleging that Defendant never was properly served with the summons,

complaint, motion for default judgment, notice of hearing, order granting the default

judgment, or any other orders in this suit.

As our Supreme Court has explained:

In general, we review a trial court’s ruling on a request for relief

from a final judgment under Rule 60.02 of the Tennessee Rules of Civil

Procedure (“Tennessee Rule 60.02”) pursuant to the abuse of discretion

standard. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012)

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(citing Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003)). We have not

previously considered whether this standard applies to a trial court’s ruling

on a motion alleging that a judgment is void for lack of jurisdiction under

Tennessee Rule 60.02(3). Nevertheless, we have previously held that

“[w]hether a trial court has subject matter jurisdiction over a case is a

question of law that we review de novo with no presumption of

correctness.” Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114,

122 (Tenn. 2013) (citing Word v. Metro Air Servs., Inc., 377 S.W.3d 671,

674 (Tenn. 2012)). Moreover “[a] decision regarding the exercise of

personal jurisdiction over a defendant involves a question of law” to which

de novo review applies, Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635,

645 (Tenn. 2009), and de novo review also applies when we are

interpreting the Tennessee Rules of Civil Procedure, Thomas v. Oldfield,

279 S.W.3d 259, 261 (Tenn. 2009).

Furthermore, when interpreting our own rules of civil procedure, we

consult and are guided by the interpretation that has been applied to

comparable federal rules of procedure. Id. at 261–62; see also Williamson

Cnty. v. Twin Lawn Dev. Co., 498 S.W.2d 317, 320 (Tenn. 1973) (“[O]ur

Rules having been taken from the Federal Rules of Civil Procedure, and the

object of our virtual adoption of the federal rules being to have similar rules

of procedure in state trial courts and federal district courts, it is proper that

we look to the interpretation of the comparable Federal Rule.”).

Rule 60(b)(4) of the Federal Rules of Civil Procedure (“Federal Rule

60(b)(4)”) is comparable, indeed, identical to Tennessee Rule 60.02(3).

Federal courts apply de novo review when considering a district court’s

ruling on a Federal Rule 60(b)(4) motion. See Cent. Vermont Pub. Serv.

Corp. v. Herbert, 341 F.3d 186, 189 (2d Cir. 2003) (“Almost every Circuit

has adopted de novo review of [Federal] Rule 60(b)(4) motions, and we

know of no Circuit that defers to the district court on a [Federal] Rule

60(b)(4) ruling.” (citing Vinten v. Jeantot Marine Alliances, S.A., 191

F.Supp.2d 642, 649–50 & nn. 12–13 (D.S.C.2002) (collecting cases));

Jackson v. FIE Corp., 302 F.3d 515, 522 (5th Cir. 2002) (“[W]e review

Rule 60(b)(4) challenges [to a void judgment] de novo “because it is ‘a per

se abuse of discretion for a district court to deny a motion to vacate a void

judgment.’ ” (quoting Carter v. Fenner, 136 F.3d 1000, 1005 (5th

Cir.1998)); Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (stating

that de novo review applies to a federal district court’s ruling on a motion

for relief from a void judgment based on Rule 60(b)(4) of the Federal Rules

of Civil Procedure “ ‘because the question of the validity of a judgment is a

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legal one.’ ” (quoting Export Group v. Reef Indus., Inc., 54 F.3d 1466,

1469 (9th Cir. 1995))). We agree with the rationale of these decisions and

will apply de novo review, with no presumption of correctness, when

reviewing a trial court’s ruling on a Tennessee Rule 60.02(3) motion to set

aside a judgment as void.

Turner v. Turner, 473 S.W.3d 257, 268-69 (Tenn. 2015).

In Turner, our Supreme Court discussed personal jurisdiction and void judgments

stating:

The lawful authority of a court to adjudicate a controversy brought

before it depends upon that court having jurisdiction of the subject matter

and jurisdiction of the parties. Landers v. Jones, 872 S.W.2d 674, 675

(Tenn. 1994); Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Brown v.

Brown, 155 Tenn. 530, 296 S.W. 356, 358 (1927). . . . Personal jurisdiction

refers to the power of a court over the parties to the controversy to render a

binding judgment. Landers, 872 S.W.2d at 675. The concepts of subject

matter jurisdiction and personal jurisdiction are fundamentally different.

Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

701–03, 102 S. Ct. 2099, 72 L.Ed.2d 492 (1982); Landers, 872 S.W.2d at

675.

***

By contrast, personal jurisdiction recognizes and protects an

individual liberty interest that flows from the Due Process Clause and

requires that maintenance of the suit “not offend ‘traditional notions of fair

play and substantial justice.’ ” Ins. Corp. of Ireland, 456 U.S. at 702, 102

S.Ct. 2099 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66

S.Ct. 154, 90 L.Ed. 95 (1945)). “It represents a restriction on judicial

power not as a matter of sovereignty, but as a matter of individual liberty.”

Id. at 703, 102 S. Ct. 2099. Because the requirement of personal

jurisdiction functions to protect an individual right, it can, like other such

rights, be waived. Id.; Landers, 872 S.W.2d at 675.

***

A judgment rendered by a court lacking either personal or subject matter

jurisdiction is void. Ins. Corp. of Ireland, 456 U.S. at 694, 102 S. Ct. 2099;

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Hood v. Jenkins, 432 S.W.3d 814, 825 (Tenn. 2013); Gentry v. Gentry, 924

S.W.2d 678, 680 (Tenn. 1996).

Turner, 473 S.W.3d at 269-70 (footnote omitted).

“A court obtains personal jurisdiction over a party defendant by service of

process.” Turner, 473 S.W.3d at 271. Pursuant to Tenn. R. Civ. P. 4:

Service [upon a Defendant within the State] shall be made as follows:

(1) Upon an individual other than an unmarried infant or an incompetent

person, by delivering a copy of the summons and of the complaint to the

individual personally, or if he or she evades or attempts to evade service, by

leaving copies thereof at the individual’s dwelling house or usual place of

abode with some person of suitable age and discretion then residing therein,

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.

***

(10) Service by mail of a summons and complaint upon a defendant may be

made by the plaintiff, the plaintiff’s attorney or by any person authorized

by statute. After the complaint is filed, the clerk shall, upon request,

furnish the original summons, a certified copy thereof and a copy of the

filed complaint to the plaintiff, the plaintiff’s attorney or other authorized

person for service by mail. Such person shall send, postage prepaid, a

certified copy of the summons and a copy of the complaint by registered

return receipt or certified return receipt mail to the defendant. If the

defendant to be served is an individual or entity covered by subparagraph

(2), (3), (4), (5), (6), (7), (8), or (9) of this rule, the return receipt mail shall

be addressed to an individual specified in the applicable subparagraph. The

original summons shall be used for return of service of process pursuant to

Rule 4.03(2). Service by mail shall not be the basis for the entry of a

judgment by default unless the record contains a return receipt showing

personal acceptance by the defendant or by persons designated by Rule

4.04 or statute. If service by mail is unsuccessful, it may be tried again or

other methods authorized by these rules or by statute may be used.

Tenn. R. Civ. P. 4.04.

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The record on appeal reveals that Plaintiff failed to achieve personal service upon

Defendant. Despite numerous attempts, Plaintiff failed to deliver a copy of the summons

and complaint to Defendant, and Plaintiff also failed to leave a copy of the summons and

complaint at Defendant’s abode with “some person of suitable age and discretion then

residing therein . . . .” Tenn. R. Civ. P. 4.04(1). Plaintiff never attempted to serve

Defendant by mail. Rule 4.04 does not provide for service by posting a copy of the

summons and complaint upon the door of a defendant’s abode. As such, Plaintiff failed

to achieve personal service upon Defendant.

After failing to achieve personal service, Plaintiff attempted to achieve service by

publication. Plaintiff asserts in his brief on appeal that he attempted service by

publication pursuant to Tenn. R. Civ. P. 4.08, which provides:

4.08. Constructive Service. -- In cases where constructive service of

process is permissible under the statutes of this state, such service shall be

made in the manner prescribed by those statutes, unless otherwise expressly

provided in these rules.

Tenn. R. Civ. P. 4.08.

The statutes Plaintiff relied upon for authority to serve by publication are Tenn.

Code Ann. § 21-1-203 and § 21-1-204. We note, however, that these statutes deal with

suits in chancery court, not circuit court. This Court has discussed the issue of whether

these statutes dispense with personal service in a circuit court stating:

The case of Continental Ins. Co. v. Masters, No. 01A01-

9206CH00254, 1993 WL 4856 (Tenn. App. Jan.13, 1993) sheds further

light on this issue. In Continental, the plaintiffs, Jimmy R. and Brenda

Masters, filed a tort action against the defendants, Caruthers & Son, Inc,

and obtained jurisdiction by personal service of process. The defendant’s

insurance carrier undertook the defense of the claim and the plaintiffs

voluntarily dismissed the action. The Masters refiled their action in circuit

court, but because the corporation’s charter had been revoked in the

meantime, the Masters were unable to personally serve any officer or agent

of the corporation. Being unable to serve the defendant, the Masters

obtained an order of publication which ran four weeks in the Nashville

Record. The trial court ultimately entered a default judgment against the

defendants in the amount of $100,000.00.

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Continental Insurance Company filed an action in chancery court for

a declaration that the judgment was void for lack of personal jurisdiction.

The Masters insisted that the judgment against defendants was valid as the

circuit court obtained jurisdiction by publication. In this contention, the

Masters relied upon Tenn. Code Ann. § 21-1-203(a) which dispenses with

personal service in a court of chancery in certain circumstances. The

Masters asserted that the statute applies to circuit and chancery courts alike

because the Tennessee Rules of Civil Procedure now prescribe the same

procedure for both courts. The Court of Appeals stated as follows:

We think the appellant is mistaken. Tenn. R. Civ.

Proc. 4.05 deals with constructive service and the comments

to the rule make it clear that, unless specifically changed by

the rules, “no changes in the statutes governing constructive

service are intended.” Therefore, in accordance with the

rules, the statute does not apply to the circuit court.

Beyond that obvious difficulty, however, is the notion

that Tenn. Code Ann. § 21-1-203 gives the court the power to

render a purely personal judgment against a defendant where

the only service is by publication . . . In other cases involving

the general law (and not Tenn. Code Ann. § 21-1-203

specifically) the courts have been equally definitive. “In

actions purely personal [the defendant] is entitled to personal

service on himself, or on someone standing before the law as

his proper representative; and no valid personal recovery can

be had against him without such service . . .”

[I]n effect, the statute provides a means of giving

notice to interested parties when the court is acting in rem.

[citation omitted].

We are satisfied that even if Tenn. Code Ann. § 21-1-

203 could be applied in circuit court it would not give the

court the power to enter a personal judgment against a

defendant where the defendant was served by publication

only.

Continental at *1, *2.

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The Tennessee General Assembly has chosen to authorize the

utilization of service by publication in certain specific instances. Such

instances have been codified as statutes in the Tennessee Code. Nowhere

in the Tennessee Code does the General Assembly authorize service by

publication for civil negligence actions filed in circuit court. In the absence

of such a statute, service by publication is not a valid method of achieving

service upon a defendant.

Scroggins v. Goss, No. 01A01-9811-CV-00580, 1999 WL 820742, at **3-4 (Tenn. Ct.

App. July 14, 1999), no appl. perm. appeal filed.

The case now before us on appeal is a breach of contract suit filed in circuit court.

Plaintiff has cited this Court to no statute allowing for service by publication in a breach

of contract action in circuit court1, nor has our research uncovered any2. As such,

Plaintiff could not utilize service by publication pursuant to Tenn. R. Civ. P. 4.08. Given

all of the above, Plaintiff failed to achieve service upon Defendant.

Even if we are incorrect and Plaintiff were allowed to utilize Tenn. Code Ann. §

21-1-203 and § 21-1-204 in this case, the constructive service by publication attempted

by Plaintiff was insufficient. As our Supreme Court discussed in Turner:

Constructive service by publication of a small notice in the classified

section of a local newspaper has been an accepted method of substituted

service for well over a century. See, e.g., Pennoyer v. Neff, 95 U.S. 714,

727, 24 L. Ed. 565 (1877). However, sixty-five years ago, the United

States Supreme Court clarified that constructive service by publication is

permissible only if it is accomplished in a manner reasonably calculated to

give a party defendant adequate notice of the pending judicial proceedings.

1

Plaintiff cited this Court to Tenn. Code Ann. § 16-11-102(a), which addresses subject matter jurisdiction

not personal jurisdiction and service of process.

2

Our research did disclose statutes that allow for the use of Tenn. Code Ann. § 21-1-203 in certain types

of circuit court cases. E.g., Tenn. Code Ann. § 67-5-2414 providing: “All such suits [with regard to

delinquent property taxes], whether brought in the chancery court or circuit court, shall be prosecuted

according to the rules of procedure of courts of chancery, . . . .” Tenn. Code Ann. § 67-5-2414 (2018);

State v. Woodcock, No. E2015-01877-COA-R9-CV, 2016 WL 3677342, at *6 (Tenn. Ct. App. July 5,

2016), no appl. perm. appeal filed (stating: “Inasmuch as a complaint for divorce may be filed in ‘the

chancery or circuit court or other court having divorce jurisdiction,’ see Tenn. Code Ann. § 36-4-105(a)

(2014), section 21-1-203 applies equally to divorce actions filed in circuit court, such as the one at issue

here. See Tenn. Code Ann. § 36-4-108(a) (2014) (providing that a divorce ‘complainant . . . shall have

the usual process to compel the defendant to appear and to answer the bill, or it may be taken for

confessed, as in other chancery cases.’)”).

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Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct.

652, 94 L. Ed. 865 (1950).

***

Nevertheless, the Supreme Court reiterated that “when notice is a person’s

due, process which is a mere gesture is not due process.” Id. at 315, 70 S.

Ct. 652. The Supreme Court highlighted some of the problems with

publication notice:

It would be idle to pretend that publication alone . . . is a

reliable means of acquainting interested parties of the fact that

their rights are before the courts. It is not an accident that the

greater number of cases reaching this Court on the question of

adequacy of notice have been concerned with actions founded

on process constructively served through local newspapers.

Chance alone brings to the attention of even a local resident

an advertisement in small type inserted in the back pages of a

newspaper, and if he makes his home outside the area of the

newspaper’s normal circulation the odds that the information

will never reach him are large indeed . . . In weighing its

sufficiency on the basis of equivalence with actual notice, we

are unable to regard this as more than a feint.

Id. For missing or unknown persons, the Supreme Court explained that

service by this “indirect and even . . . probably futile” means – publication -

does not raise Due Process concerns. Id. at 317, 70 S. Ct. 652. But as to

known parties with known addresses, the Supreme Court concluded that

notice by publication is constitutionally defective because it is not

“reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to

present their objections.” Id. at 314, 70 S. Ct. 652.

Turner, 473 S.W.3d at 272.

In the case now before us on appeal, Plaintiff attempted to personally serve

Defendant at Defendant’s last known address in Davidson County. When Plaintiff was

unsuccessful in personally serving Defendant, Plaintiff then attempted service by

publication in a paper distributed primarily in Montgomery County. As the United States

Supreme Court noted:

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Chance alone brings to the attention of even a local resident an

advertisement in small type inserted in the back pages of a newspaper, and

if he makes his home outside the area of the newspaper’s normal circulation

the odds that the information will never reach him are large indeed . . . .

Mullane, 339 U.S. at 315, 70 S. Ct. 652. Clearly, Defendant made his home outside of

the area of the normal circulation of the paper Plaintiff chose for his attempted service by

publication. As such, this publication in a paper circulated primarily in a county where

Defendant does not reside cannot be considered reasonably calculated to give Defendant

notice of the suit. Therefore, the service by publication attempted by Plaintiff was

insufficient, and Plaintiff failed to achieve service upon Defendant by publication.

As Plaintiff failed to properly serve Defendant, the Trial Court lacked personal

jurisdiction, and the judgment rendered against Defendant was void. We, therefore,

vacate the Trial Court’s August 7, 2017 order granting a default judgment and the Trial

Court’s order denying Defendant’s Rule 60 motion.

Conclusion

The judgment of the Trial Court is vacated, and this cause is remanded to the Trial

Court for collection of the costs below. The costs on appeal are assessed against the

appellee, Theophilus Ebuleme.

_________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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