Session November 2, 2016
from the Circuit Court for Macon County No. 2015-CV-3 Clara
W. Byrd, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
M. Nance, Westmoreland, Tennessee, appellant, pro se.
N. Oldham, Gallatin, Tennessee, for the appellee, Donna Nance
Neal McBrayer, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett,
NEAL McBRAYER, JUDGE
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.
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,
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.
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.
on the notice of voluntary nonsuit, the circuit court
dismissed the action without prejudice. Mr. Nance ...