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McLucas v. Nance

Court of Appeals of Tennessee, Nashville

November 14, 2016

DONNA NANCE McLUCAS
v.
SHAWN MICHAEL NANCE

          Session November 2, 2016

         Appeal from the Circuit Court for Macon County No. 2015-CV-3 Clara W. Byrd, Judge

         Defendant in an unlawful detainer action filed a counterclaim against the plaintiff. Two days later, the plaintiff filed a notice of voluntary nonsuit, but the certificate of service on the notice indicated it was placed in the mail the same day that the counterclaim was filed. Based on the notice of voluntary dismissal, the trial court entered an order dismissing the action without prejudice. Defendant appeals, arguing that he should be permitted to proceed with his counterclaim. We affirm.

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

          Shawn M. Nance, Westmoreland, Tennessee, appellant, pro se.

          Bruce N. Oldham, Gallatin, Tennessee, for the appellee, Donna Nance McLucas.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

          MEMORANDUM OPINION[1]

          W. NEAL McBRAYER, JUDGE

         This case is before us on appeal for the second time. See McLucas v. Nance, No. M2015-00642-COA-R3-CV, 2015 WL 5936935 (Tenn. Ct. App. Oct. 12, 2015). Regrettably, the case involves a dispute between a mother and son.

         The mother, Ms. McLucas, originally filed suit against her son, Mr. Nance, in general sessions court. Id. at *1. Ms. McLucas alleged that Mr. Nance was "in breach of an oral month-to-month lease after receiving written notice to vacate the premises, " and she sought recovery of "'unpaid rents in an amount to be proven at trial; damages to said property; insurance proceeds in the amount of $5, 918.67 paid to [Tenant] for a fire in the kitchen, but not applied towards said damages; immediate possession of said house; attorney's fees and costs.'" Id. Ms. McLucas obtained a default judgment, and Mr. Nance appealed to the Circuit Court for Macon County, Tennessee. Id.

         The circuit court initially dismissed the appeal, finding that Mr. Nance had not posted a bond to stay the writ of possession. Id. On appeal to this Court, we reversed the dismissal, concluding that the bond, unlike a cost bond, was not jurisdictional. Id. at *3.

         After remand to the circuit court, Mr. Nance filed an answer and counterclaim on April 5, 2016. Two days later, Ms. McLucas filed a notice of voluntary nonsuit. But the certificate of service on the notice indicated it was served by placing a copy in the mail on April 5.

         Based on the notice of voluntary nonsuit, the circuit court dismissed the action without prejudice. Mr. Nance ...


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