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Carney v. Santander Consumer USA

Court of Appeals of Tennessee, Jackson

May 28, 2015


Assigned on Briefs May 18, 2015

Appeal from the Circuit Court for Madison County No. C14217 Kyle Atkins, Judge

Ophelia Carney, Jackson, Tennessee, Pro Se.

Kannon C. Conway, Memphis, Tennessee, for the Appellee, Santander Consumer USA, Inc.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Brandon O. Gibson, J., joined.




This is an interlocutory appeal of the trial court's denial of a motion to recuse filed pursuant to Tennessee Supreme Court Rule 10B. Pursuant to Rule 10B, if this Court determines that no answer from the opposing party is necessary, it may dispose of the recusal appeal summarily. See Tenn. Sup. Ct. R. 10B, § 2.05. After reviewing the documents submitted by Respondent/Appellant Ophelia Carney in support of her recusal appeal, we have determined that no response is necessary from the opposing party Petitioner Santander Consumer USA, Inc. ("Santander"). We further conclude that no oral argument is required. Accordingly, we will determine whether recusal was appropriate solely on the basis of Ms. Carney's submission to this Court.

Ms. Carney filed a civil warrant against Santander in the General Sessions Court for Madison County on June 21, 2014. The civil warrant alleged that Santander had wrongly retained possession of Ms. Carney's automobile and that she was owed possession of the car and a money judgment of $25, 000.00 as a result. Ms. Carney purported to mail a copy of the civil warrant to Santander at 1010 Mockingbird Lane, Suite 100, Dallas, Texas 75247. The general sessions court held a hearing on Ms. Carney's civil warrant on July 21, 2014. Because no representative for Santander appeared, Ms. Carney was granted a default judgment in the amount of $25, 000.00, along with possession and costs. Ms. Carney subsequently issued a garnishment summons against Santander on August 1, 2014.

Thereafter, on August 22, 2014, Santander filed a petition for a writ of certiorari in the Madison County Circuit Court ("trial court"). Santander alleged that the garnishment was the first time that Santander received notice of the action in the general sessions court. According to Santander, the address that Ms. Carney utilized to serve notice of the civil warrant did not belong to Santander. Accordingly, Santander argued that the default judgment was void. See Ramsay v. Custer, 387 S.W.2d 566, 569 (Tenn. Ct. App. 2012) (citing Overby v. Overby, 457 S.W.2d 851, 852 (Tenn. 1970)). In the alternative, Santander contended that the default judgment should be set aside due to excusable neglect. The petition was accompanied by the sworn affidavit of the Senior Vice President of Santander, who stated that property located at the address where the Civil Warrant was sent did not belong to Santander and that no notice was ever sent to Santander's authorized agent for service of process in Tennessee.

It is unclear exactly what transpired thereafter in the trial court. At some point, the trial court set aside the default judgment against Santander and ordered that the case would proceed to trial. According to the record, the case was set for a hearing on March 30, 2015, wherein the trial court was to set a trial date. The hearing apparently occurred, and a trial date was set.[1] Ms. Carney asserts that the March 30, 2015 hearing was intended to be an evidentiary hearing on the issue of whether the default judgment was set aside, but that she was prevented from presenting evidence on this issue.

Thereafter, Ms. Carney filed several motions to set aside the circuit court's order. All of Ms. Carney's motions were eventually denied. In turn, Santander filed a motion for a more definite statement. It appears that this motion was granted prior to April 13, 2015 because Ms. Carney filed a "Response for Definite Statement" on that day. After Ms. Carney filed her third motion to reconsider the Circuit Court's ruling, Santander apparently filed a second motion for a more definite statement and for sanctions against Ms. Carney.

In the meantime, on March 31, 2015, Ms. Carney filed her first motion to recuse the trial judge. In her motion, Ms. Carney alleged that the trial judge refused to allow Ms. Carney to present newly discovered evidence regarding the service of the civil warrant, refused to consider Ms. Carney's evidence that counsel for Santander "gave false and misleading testimony, " failed to properly prepare the record for Ms. Carney's appeal, had a "basically ex parte communication" with Santander's counsel, repeatedly directed Ms. Carney to obtain an attorney, exhibited bias against Ms. Carney, refused to allow Ms. Carney a fair trial, and failed to follow the law surrounding writs of certiorari. Ms. Carney supported her recusal motion with sworn affidavits. On April 13, 2015, Ms. Carney amended her motion to correct an error in the heading.

Santander filed a motion in opposition to Ms. Carney's recusal motion on or about April 15, 2013. Santander generally argued that Ms. Carney's allegations were conclusory, unsupported, and not the proper basis for recusal of a trial judge. While Ms. Carney's recusal motion was pending, on April 20, 2015, the trial court entered an order granting Santander's second motion for a more definite statement. The trial court allowed Ms. Carney sixty days to file an amended ...

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