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Petersen v. Deboe

Court of Appeals of Tennessee, Knoxville

May 20, 2015

KAREN FAY PETERSEN
v.
DAX DEBOE

Session April 15, 2015

Appeal from the Circuit Court for Anderson County No. B2LA0280 Donald R. Elledge, Judge

Dax DeBoe, Knoxville, Tennessee, Pro Se.

Jon M. Cope and Justin D. Roddye, Knoxville, Tennessee, for the appellee, Karen Fay Petersen.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney and Brandon O. Gibson, JJ., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

The plaintiff, Karen Fay Petersen, filed the instant action against the defendant, Dax DeBoe, on September 28, 2012, in the Anderson County Circuit Court. Ms. Petersen's complaint asserted claims regarding allegedly defective home improvements performed on her residence by Mr. DeBoe. Specifically, Ms. Petersen's complaint included claims of breach of contract, misrepresentation, negligent construction, and violation of the Tennessee Consumer Protection Act. See Tenn. Code Ann. 47-18-101 (2013 & Supp. 2014), et seq. In furtherance of the action, the trial court issued a summons to Mr. DeBoe at his residential address on Evans Road in Knoxville, Tennessee. The initial summons was returned unserved, although the process server noted that several attempts at service had been made.

The trial court issued three subsequent alias summonses in November and December 2012 and January 2013, respectively. The initial two alias summonses were returned unserved, also bearing the process server's notation that multiple attempts at service had been made. Ms. Petersen's counsel mailed the third alias summons to Mr. DeBoe's residential address, as confirmed by the Knox County Trustee's Office, via registered mail. The United States Postal Service left two notices regarding this mailing at Mr. DeBoe's residence before returning the mailing to Ms. Petersen's counsel as unclaimed on March 6, 2013. Ms. Petersen's counsel then filed this third alias summons with the court, stating that Mr. DeBoe was properly served pursuant to Tennessee Rule of Civil Procedure 4.04(11).

Ms. Petersen subsequently filed a motion seeking a default judgment against Mr. DeBoe on May 29, 2013. Ms. Petersen's counsel mailed a copy of this motion and corresponding notice of hearing to Mr. DeBoe's residential address. The trial court conducted a hearing on the motion on July 1, 2013, for which Mr. DeBoe did not appear. The court granted a default judgment to Ms. Petersen and set a hearing concerning damages for July 15, 2013. During that hearing, the trial court awarded Ms. Petersen compensatory damages of $30, 000 and punitive damages of $3, 330. Following entry, Ms. Petersen's counsel mailed copies of the trial court's judgments to Mr. DeBoe's residential address.

On July 31, 2013, Mr. DeBoe, proceeding through counsel, filed a motion seeking to set aside the default judgment pursuant to Tennessee Rules of Civil Procedure 55.02 and 60.02. Mr. DeBoe claimed that he had only recently learned of the lawsuit after his wife received a corresponding letter at her address. Mr. DeBoe also filed an affidavit, claiming that he was never served with the complaint and had not been living at his home address. Mr. DeBoe maintained that he and his wife were separated during the relevant time period and that he was residing at a different location.

The trial court conducted a hearing on the motion, during which Mr. DeBoe appeared with counsel. Mr. DeBoe explained that he and his wife were separated during the relevant period and that he was not living at the address listed on the summons. Mr. DeBoe also stated that he had not requested the United States Postal Service to forward his mail because he thought his wife would deliver it to him. She in fact had not. According to Mr. DeBoe, he was unaware of the attempted service by mail and only learned of the lawsuit when his wife provided him a copy of the judgment awarding monetary damages.

The trial court, inter alia, found that Mr. DeBoe was not a credible witness. The court specifically determined that Mr. DeBoe had ignored the mailings and was evading service of process. Consequently, the court denied Mr. DeBoe's motion to set aside the default judgment. Mr. DeBoe has appealed. Although no transcript of the hearing was provided, the parties filed competing statements of the evidence pursuant to Tennessee Rule of Appellate Procedure 24. The trial ...


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