Session January 31, 2018
from the Chancery Court for Shelby County No. CH-15-0991-2
Jim Kyle, Chancellor.
brought a lawsuit asserting multiple challenges to the
bank's administration of her mortgage and initiation of
foreclosure proceedings. The bank filed a motion to dismiss,
which was ultimately granted by the trial court, despite
several post-judgment motions filed by the homeowner. On
appeal, the bank argues that the homeowner's notice of
appeal was not timely. Although we find that the
homeowner's notice of appeal was timely, we conclude that
the trial court did not err in granting the bank's motion
to dismiss the homeowner's complaint because it fails to
state a claim upon which relief may be granted.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Jacob Gowin and Jacqueline Strong Moss, Chattanooga,
Tennessee, for the appellant, Maureen Davis.
Goswamy Shelat and Bradley E. Trammell, Memphis, Tennessee,
for the appellees, Wells Fargo Home Mortgage and Secretary of
D. Bennett, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J.,
D. BENNETT, JUDGE.
and Procedural Background
Davis executed a promissory note and deed of trust in 1993 to
secure financing for $98, 718 for her home on Monterey Drive
in Memphis. Wells Fargo Home Mortgage, a division of Wells
Fargo Bank, N.A., serviced Ms. Davis's loan until the
deed of trust was foreclosed upon in August 2013. Following
the foreclosure sale, the property was assigned to the
Secretary of Veteran's Affairs.
2015, Ms. Davis filed this lawsuit against Wells Fargo and
the Secretary of Veteran's Affairs (collectively,
"Wells Fargo"). The complaint includes numerous
allegations. For example, Ms. Davis alleged that the
defendants mismanaged her account, that the loan was
predatory, that the foreclosure process violated her due
process rights, that the defendants' conduct was
"tantamount to fraud, " that the defendants were
guilty of false and deceptive practices, and that she did not
receive notice of the foreclosure. The defendants filed a
motion to dismiss the complaint on the ground that "none
of Ms. Davis's allegations and statements support a
cognizable claim." Along with their motion, the
defendants submitted a memorandum and numerous exhibits
showing Ms. Davis's extensive bankruptcy filings.
Davis did not file a response to the defendants' motion
to dismiss. On February 10, 2016, the trial court entered a
"Consent Order of Dismissal with Prejudice." On
March 10, 2016, Ms. Davis, appearing pro se, filed a motion
pursuant to Tenn. R. Civ. P. 60.02 to set aside the order
entered by the trial court on February 10, 2016. Ms. Davis
asserted that she had not consented to the entry of the
previous order by her attorney, that she was in the process
of securing new counsel, and that she was presently
hospitalized. The defendants agreed to have the order set
the defendants re-set their motion to dismiss, Ms. Davis
again did not appear in court. On June 7, 2016, the trial
court determined that "Plaintiff's entire lawsuit
fails to state a cognizable claim" and entered a
"Final Order Dismissing Lawsuit with Prejudice and
Judgment." Then, on July 6, 2016, Ms. Davis (who had
retained another attorney) filed a motion to set aside this
final order of dismissal, again citing Tenn. R. Civ. P.
60.02. She asserted that her previous attorney was still her
attorney of record at the time of the June 7, 2016 hearing,
that he had negligently failed to appear at the hearing, and
that she, herself, was in the hospital at the time of the
September 26, 2016, the trial court entered an order
withdrawing Ms. Davis's motion to set aside (in
accordance with her filing of a notice of withdrawal of her
motion). The court stated that its order of June 7, 2016, was
a final order of dismissal and judgment pursuant to Rule
54.01. The court further provided: "To ensure clarity
among the parties, however, the time for any appeal by Ms.
Davis will run from entry of this Order Withdrawing
Plaintiff's Rule 60 Motion."
Davis filed a notice of appeal on October 26, 2016.
appeal, Ms. Davis raises the following issues: (1) whether
her complaint stated a sufficient cause of action to
challenge the foreclosure, including improper notice; and (2)
whether she pled a cause of action for fraud pursuant to
Tenn. R. Civ. P. 8.01 and 9.02. Wells Fargo raises the additional
issue of whether Ms. Davis filed a timely notice of
Notice of Appeal.
issue presented, which has not been addressed in Tennessee,
is whether Ms. Davis's notice of appeal was timely filed
in light of her withdrawal of her July 6 post-judgment
motion. Rule 4(b) of the Tennessee Rules of Appellate
Procedure provides as follows:
In a civil action, if a timely motion under the Tennessee
Rules of Civil Procedure is filed in the trial court by any
party: (1) under Rule 50.02 for judgment in accordance with a
motion for a directed verdict; (2) under Rule 52.02 to amend
or make additional findings of fact, whether or not an
alteration of the judgment would be required if the motion is
granted; (3) under Rule 59.07 for a new trial; (4) under Rule
59.04 to alter or amend the judgment; the time for appeal for
all parties shall run from the entry of the order denying a
new trial or granting or denying any other such motion.
first argument Wells Fargo makes concerning the notice of
appeal is that Ms. Davis's second post-judgment motion
did not extend the time period for appeal. Ms. Davis filed
two post-judgment motions, one on March 10, 2016, and another
on July 6, 2016, both denominated Rule 60 motions. Under
Tennessee law, however, courts consider the substance of a
motion rather than its title. Tenn. Farmers Mut. Ins. Co.
v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998). Thus, we
will treat Ms. Davis's motions seeking to set aside the
judgments dismissing her complaint as filed pursuant to Tenn.
R. Civ. P. 59.04. Because Ms. Davis's motions were filed
within thirty days of the order being challenged, they appear
to fit within the parameters of Rule 59.04.
59.01 of the Tennessee Rules of Civil Procedure provides
that, "Motions to reconsider [motions filed under Rule
50.02, Rule 52.02, Rule 59.07, or Rule 59.04] are not
authorized and will not operate to extend the time for
appellate proceedings." Thus, under Tennessee law, a
party cannot file serial post-judgment motions to alter or
amend seeking the same relief; such motions do not operate to
extend the time for filing a notice of appeal. See Legens
v. Lecornu, No. W2013-01800-COA-R3-CV, 2014 WL 2922358,
at *8-9 (Tenn. Ct. App. June 26, 2014); Gassaway v.
Patty, 604 S.W.2d 60, 61 (Tenn. Ct. App. 1980). Citing
Gassaway, the advisory commission comment to Tenn.
R. Civ. P. 59.01 states: "Filing and serving motions in
serial fashion will not extend the time for filing a notice
of appeal with the trial court clerk. In particular, motions
to reconsider rulings on any of the listed motions will not
extend the time for filing a notice of appeal."
this rule concerning post-judgment motions is not absolute.
In Legens v. Lecornu, 2014 WL 2922358, at *13, the
Court of Appeals explained that "[t]he purpose of a Rule
59 motion to alter or amend a judgment is to prevent
unnecessary appeals by providing the trial court with an
opportunity to correct errors before the judgment becomes
final." The plaintiff's two motions in
Legens differed substantively. Legens, 2014
WL 2922358, at *10. The first motion sought reversal of the
trial court's finding that there was no fraud in the sale
of a vehicle to plaintiff. Id. Upon receiving a
favorable ruling, the plaintiff filed a second motion seeking
clarification as to the amount of the purchase price to be
returned as well as an award of attorney fees. Id.
The appellate court concluded that the plaintiff's
"second motion to alter or amend . . . was not an
impermissible motion to reconsider a Rule 59 motion."
Id. at *14. The second motion, therefore, tolled the
time period for filing the notice of appeal. Id.
present case, Ms. Davis's first post-judgment motion was
filed on March 10, 2016. This was a pro se motion in which
Ms. Davis sought to set aside the consent order of dismissal
entered on February 10, 2016, without her consent. The second
post-judgment motion, filed on July 6, 2016, sought to set
aside the final order dismissing the lawsuit entered on June
7, 2016. Thus, these two post-judgment motions were not filed
in response to the same order and did not seek the same
relief. We do not, therefore, see an issue with the
effectiveness of the July 6, 2016 motion by virtue of it
being a second post-judgment motion.
now proceed to the more difficult question of whether Ms.
Davis's withdrawal of her July 2016 post-judgment motion
deprived the motion of its tolling effect for purposes of the
running of the time for the filing of her notice of appeal.
Tennessee Rule of Appellate Procedure 4(b) does not answer
this question because withdrawal of a motion does not
technically constitute the granting or denial of the motion.
From a purely logical standpoint, one might conclude that,
once a motion is withdrawn, it is as if the motion was never
filed. Thus, it could even be argued that the motion did not
toll the running of the time for filing the notice of appeal
until "the entry of the order denying a new trial or
granting or denying any other such motion." Tenn. R.
App. P. 4(b).
Tennessee courts have not addressed this issue, caselaw from
other jurisdictions provides guidance. The analogous federal
appellate rule, Fed. R. App. P. 4(a)(4),  also does not
expressly address the circumstance where a party withdraws
one of the motions that tolls the time provided under the
rule for filing a notice of appeal. There are a few federal
circuits that have ruled on the issue, and most have
concluded that "withdrawal of a motion did not deprive
it of tolling effect." 16A Fed. Prac. & Proc. Juris.
§ 3950.4 (4th ed. Supp. 2018). In United States v.
Rodriguez, 892 F.2d 233 (2d Cir. 1989), Rodriguez was
convicted of cocaine possession with intent to distribute and
sentenced in a judgment entered on January 13, 1989.
Rodriguez, 892 F.2d at 234. On February 9, 1989, the
government moved the court to reconsider the sentence in
light of a recent Supreme Court decision. Id. Then,
on March 6, 1989, the government sent a letter to the
district court withdrawing its motion to reconsider.
Id. The government asked the court to extend its
time for appeal under Fed. R. App. P. 4(b),  and the district
court extended the time for appeal to March 15, 1989.
Id. at 235. The court also stated that the
government's motion for reconsideration was "denied
as withdrawn." Id. The government filed its
notice of appeal on March 15, 1989. Id.
appeal, Rodriguez argued that the government's notice of
appeal filed on March 15, 1989, was not timely. Id.
The Court of Appeals reasoned as follows:
It is conceded that the government had at least 30 days to
appeal from the January 13, 1989 judgment of conviction.
Within that period-on February 9, 1989-the government moved
for reconsideration. Under the cases just cited, this stopped
the running of the time period clock. On March 15, the
district court endorsed the motion for reconsideration of the
January 13 sentence with the words "[m]otion denied as
withdrawn." It seems reasonable to construe this as a
denial of the government's motion. Under [United
States v.] Dieter, the finality of the judgment was thus
suspended until March 15. See Dieter, [429 U.S. 6');">429 U.S. 6,
8, 97 S.Ct. 18, 19 (1976) (per curiam)]. The full 30-day
clock started running again on March 15, and the
government's notice of appeal filed the same day was
Id. Although the government conceded that it
withdrew its motion for reconsideration in its letter on
March 6, the trial court determined that it did not need to
decide whether the time for filing the notice of appeal was
tolled until March 6 (when the motion was withdrawn) or until
March 15 (when the district court acknowledged the withdrawal
and denied the motion on that basis) because, in either case,
the notice of appeal was timely. Id. at 235-236;
see also Worcester v. Springfield Terminal Ry. Co.,
827 F.3d 179, 181 (1st Cir. 2016) (holding that trial
court's verbal granting of motion to withdraw motion for
new trial, noted on the docket, began clock running on time
for filing notice of appeal); Brae Transp., Inc. v.
Coopers & Lybrand, 790 F.2d 1439, 1442 (9th Cir.
1986) (holding that appeal period was tolled by motion to
vacate or stay judgment although motion was withdrawn; time
for appeal began to run from date of order "disposing
of" motion to vacate or stay the
Tenth Circuit case of Vanderwerf v. SmithKline Beecham
Corp., 603 F.3d 842 (10th Cir. 2010), presents the
arguments for reaching the opposite result as well as
fleshing out the reasons supporting the approach taken in the
previous cases. The Vanderwerf family sued the SmithKline
drug company after the father committed suicide while being
treated for depression and anxiety with the drug Paxil.
Vanderwerf, 603 F.3d at 843. The district court
granted summary judgment in favor of SmithKline on January 9,
2008. Id. The Vanderwerfs filed a motion to
reconsider under Fed.R.Civ.P. 59(e) on January 17, 2008.
Id. at 845. Then, on August 8, 2008, they filed a
notice of withdrawal of the Rule 59 motion and a notice of
appeal. Id. The Court of Appeals concluded that it
lacked jurisdiction because the notice of appeal was not
timely filed. Id.
reaching its conclusion, the Tenth Circuit elucidated its
reasoning and made ...