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M&T BANK v. Parks

Court of Appeals of Tennessee, Jackson

November 24, 2014

M&T BANK
v.
JOYCELYN A. PARKS, ET AL.

Session Date October 23, 2014

Appeal from the Circuit Court for Shelby County No. CT-003810-13 James F. Russell, Judge

Mia Scullark, Cordova, Tennessee, Pro Se.

Jerry Morgan, Brentwood, Tennessee, for the Appellee, M&T Bank.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Arnold B. Goldin, J., joined.

MEMORANDUM OPINION [1]

J. STEVEN STAFFORD, JUDGE

Background

The Plaintiff/Appellee M&T Bank filed a detainer action in Shelby County General Sessions Court against Defendant Joycelyn A. Parks for possession of the property located at 5993 Cedarcrest Court in Shelby County. According to M&T Bank, the only named defendant was Joycelyn A. Parks, the borrower on the foreclosed deed of trust. The Detainer Warrant, however, lists "Joycelyn A. Parks or Current Occupants" as defendants in the matter. Ms. Parks apparently did not contest the detainer matter[2] and a judgment for possession of the property was entered in M&T Bank's favor on August 12, 2013.

On August 19, 2013, Appellant Mia Scullark filed an appeal of the General Sessions ruling to the Shelby County Circuit Court.[3] Ms. Scullark's notice of appeal indicated that her address was "8353 Bazemore/5993 Cedarcrest." The record indicates that Ms. Scullark paid the filings fees associated with her appeal. On the same day, Ms. Scullark also purported to file a bond in the Circuit Court, signed by Polly Agee, in which Ms. Scullark stated that Ohio Casualty Insurance was her surety for appellate purposes. Attached to the bond was a one-page "Power of Attorney, " involving American Fire and Casualty Company, The Ohio Casualty Insurance Company, Liberty Mutual Insurance Company, and West American Surety Company. The Power of Attorney document stated that Polly Agee was authorized to act as an attorney-in-fact for the above companies. The Power of Attorney specifically gave the attorneys-in-fact, such as Polly Agee, the right to execute surety bonds.

On September 23, 2013, M&T Bank filed a motion to dismiss Ms. Scullark's appeal, arguing that Ms. Scullark failed to post a bond pursuant to Tennessee Code Annotated Section 29-18-130(b)(2), which provides:

In cases where the action has been brought by a landlord to recover possession of leased premises from a tenant on the grounds that the tenant has breached the contract by failing to pay the rent, and a judgment has been entered against the tenant, subdivision (b)(1) shall not apply. In that case, if the defendant prays an appeal, the defendant shall execute bond, or post either a cash deposit or irrevocable letter of credit from a regulated financial institution, or provide two (2) good personal sureties with good and sufficient security in the amount of one (1) year's rent of the premises, conditioned to pay all costs and damages accruing from the failure of the appeal, including rent and interest on the judgment as provided for herein, and to abide by and perform whatever judgment may be rendered by the appellate court in the final hearing of the cause. The plaintiff shall not be required to post a bond to obtain possession in the event the defendant appeals without complying with this section. The plaintiff shall be entitled to interest on the judgment, which shall accrue from the date of the judgment in the event the defendant's appeal shall fail.

M&T Bank argued that pursuant to the Deed of Trust on the property, any person in possession of the property who did not immediately surrender possession of the property upon demand would be considered a "tenant at will." Accordingly, M&T Bank argued that because Ms. Scullark was alleging that she was an occupant of the property, her appeal should be considered a landlord-tenant dispute and subject to the bond requirement of Tennessee Code Annotated Section 29-18-130(b)(2). Because Ms. Scullark had allegedly failed to comply with this section by timely filing a bond, M&T Bank argued that the Circuit Court lacked subject matter jurisdiction to consider her appeal.

While the motion to dismiss was pending in Circuit Court, on November 13, 2013, Ms. Scullark filed a notice to remove the case to federal court. After the matter was removed, M&T Bank filed a motion to return the matter to state court and to be awarded attorney's fees incurred in the federal action. On January 16, 2014, the federal magistrate entered a report and recommendation stating that M&T's motion should be granted. On February 3, 2014, the federal district court adopted the recommendation of the magistrate judge, remanded the case back to state court, and entered an order awarding attorney's fees to M&T Bank. Although Ms. Scullark appealed the district court's order to the Sixth Circuit Court of Appeals, M&T Bank asserts that her appeal was dismissed for failure to file an appellate brief.

Before the case was officially remanded back to the trial court, the trial court granted M&T Bank's motion to dismiss the appeal by order of November 15, 2013, finding that Ms. Scullark had not posted a proper appellate bond pursuant to Tennessee Code Annotated Section 29-18-130(b)(2). Ms. Scullark filed a timely notice of appeal to this Court.[4]

Issues Presented Ms. Scullark raises several issues in her appellate brief, which we restate ...


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