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Ebulueme v. Onoh

Court of Appeals of Tennessee, Nashville

May 24, 2019


          Session April 2, 2019

          Appeal from the Circuit Court for Montgomery County No. MC CC CV 15-1403 Ross H. Hicks, Judge.

         The Circuit Court for Montgomery County ("the Trial Court") entered a default judgment in favor of Theophilus Ebulueme ("Plaintiff") in this breach of contract action. Fred E. Onoh ("Defendant") filed a motion pursuant to Tenn. R. Civ. P. 60 to vacate the judgment asserting that Defendant was not properly served and never received notice of the suit. The Trial Court denied the Rule 60 motion. Defendant appealed to this Court. We find and hold that Plaintiff did not achieve personal service and that the service by publication that was attempted was improper. As such, Plaintiff failed to properly serve Defendant rendering the default judgment void. We, therefore, vacate the Trial Court's August 7, 2017 order granting a default judgment and the Trial Court's order denying Defendant's Rule 60 motion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated Case Remanded

          James W. Cobb, Kaleigh Rose Thacker, and Anthony Adewumi, Madison, Tennessee, for the appellant, Fred E. Onoh.

          R.W. Shick, Jr., Gallatin, Tennessee, for the appellee, Theophilus Ebuleme.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., P.J. M.S. and ANDY D. BENNETT, J., joined.




         In July of 2015, Plaintiff filed his complaint against Defendant alleging breach of a contract with regard to a loan to purchase a semi-truck. In May of 2017, Plaintiff filed a motion for a default judgment alleging that Plaintiff unsuccessfully had attempted to serve process upon Defendant at his usual place of abode in Nashville in Davidson County on nineteen occasions. On the nineteenth attempt, the process server posted the summons and complaint on the door of the abode. After the unsuccessful attempts at personal service, Plaintiff attempted service by publication in the Clarksville Leaf Chronicle, which is distributed primarily in Montgomery County. After the publication and upon motion by the Plaintiff, the Trial Court entered an order on August 7, 2017 granting a default judgment against Defendant in the amount of $45, 000.

         In December of 2017, Defendant filed a motion pursuant to Tenn. R. Civ. P. 60 seeking to vacate the default judgment alleging that Defendant was unaware of the suit until he received a letter from Plaintiff's attorney informing him that a judgment had been taken against him. Defendant supported his motion with his affidavit in which he asserted that he never was properly served and that the address where Plaintiff had attempted to serve him in Nashville indeed was Defendant's address.

         The Trial Court denied Defendant's Rule 60 motion by order entered April 3, 2018. Defendant appeals to this Court.


         Although not stated exactly as such, Defendant raises one dispositive issue on appeal: whether the Trial Court erred in denying his Rule 60 motion to vacate based upon the fact that Defendant never was served properly. Defendant filed his motion pursuant to Tenn. R. Civ. P. 60.02(3) alleging that the default judgment was void and Tenn. R. Civ. P. 60.02(5) alleging that Defendant never was properly served with the summons, complaint, motion for default judgment, notice of hearing, order granting the default judgment, or any other orders in this suit.

         As our Supreme Court has explained:

In general, we review a trial court's ruling on a request for relief from a final judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure ("Tennessee Rule 60.02") pursuant to the abuse of discretion standard. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012) (citing Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003)). We have not previously considered whether this standard applies to a trial court's ruling on a motion alleging that a judgment is void for lack of jurisdiction under Tennessee Rule 60.02(3). Nevertheless, we have previously held that "[w]hether a trial court has subject matter jurisdiction over a case is a question of law that we review de novo with no presumption of correctness." Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 122 (Tenn. 2013) (citing Word v. Metro Air Servs., Inc., 377 S.W.3d 671, 674 (Tenn. 2012)). Moreover "[a] decision regarding the exercise of personal jurisdiction over a defendant involves a question of law" to which de novo review applies, Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 645 (Tenn. 2009), and de novo review also applies when we are interpreting the Tennessee Rules of Civil Procedure, Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009).
Furthermore, when interpreting our own rules of civil procedure, we consult and are guided by the interpretation that has been applied to comparable federal rules of procedure. Id. at 261-62; see also Williamson Cnty. v. Twin Lawn Dev. Co., 498 S.W.2d 317, 320 (Tenn. 1973) ("[O]ur Rules having been taken from the Federal Rules of Civil Procedure, and the object of our virtual adoption of the federal rules being to have similar rules of procedure in state trial courts and federal district courts, it is proper that we look to the interpretation of the comparable Federal Rule.").
Rule 60(b)(4) of the Federal Rules of Civil Procedure ("Federal Rule 60(b)(4)") is comparable, indeed, identical to Tennessee Rule 60.02(3). Federal courts apply de novo review when considering a district court's ruling on a Federal Rule 60(b)(4) motion. See Cent. Vermont Pub. Serv. Corp. v. Herbert, 341 F.3d 186, 189 (2d Cir. 2003) ("Almost every Circuit has adopted de novo review of [Federal] Rule 60(b)(4) motions, and we know of no Circuit that defers to the district court on a [Federal] Rule 60(b)(4) ruling." (citing Vinten v. Jeantot Marine Alliances, S.A., 191 F.Supp.2d 642, 649-50 & nn. 12-13 (D.S.C.2002) (collecting cases)); Jackson v. FIE Corp., 302 F.3d 515, 522 (5th Cir. 2002) ("[W]e review Rule 60(b)(4) challenges [to a void judgment] de novo "because it is 'a per se abuse of discretion for a district court to deny a motion to vacate a void judgment.'" (quoting Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.1998)); Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (stating that de novo review applies to a federal district court's ruling on a motion for relief from a void judgment based on Rule 60(b)(4) of the Federal Rules of Civil Procedure" 'because the question of the validity of a judgment is a legal one.'" (quoting Export Group v. ...

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