Session April 2, 2019
from the Circuit Court for Montgomery County No. MC CC CV
15-1403 Ross H. Hicks, Judge.
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated Case Remanded
W. Cobb, Kaleigh Rose Thacker, and Anthony Adewumi, Madison,
Tennessee, for the appellant, Fred E. Onoh.
Shick, Jr., Gallatin, Tennessee, for the appellee, Theophilus
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which FRANK G. CLEMENT, JR., P.J. M.S. and ANDY D. BENNETT,
MICHAEL SWINEY, CHIEF JUDGE.
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.
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
Trial Court denied Defendant's Rule 60 motion by order
entered April 3, 2018. Defendant appeals to this Court.
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.
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. ...