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Endeavor Metals Group LLC v. McKevitz

Court of Appeals of Tennessee, Knoxville

May 29, 2019

ENDEAVOR METALS GROUP LLC
v.
ANDREW MCKEVITZ

          Assigned on Briefs May 1, 2019

          Appeal from the Circuit Court for Blount County No. E-28069 David Reed Duggan, Judge

         This appeal arises from an action in the circuit court to set aside a default judgment entered in the general sessions court as void on the grounds the general sessions court lacked both personal and subject matter jurisdiction. After the judgment creditor filed his answer, the judgment debtor moved for summary judgment on these issues. Per the requirements of Tenn. R. Civ. P. 56.03, the judgment debtor filed a statement of undisputed material facts supported by citation to the record that the individual upon whom service of process was effectuated was not a partner, managing agent, officer, or an agent authorized to accept service of process on its behalf. In his response to the motion, the judgment creditor agreed that some of the facts were undisputed but disputed others; however, in contravention of Tenn. R. Civ. P. 56.03, he did not cite to the record in support of the facts to which he contended there was a dispute. Accordingly, the circuit court deemed all of the facts in the statement of undisputed material facts to be undisputed. Based on the undisputed facts, the circuit court granted summary judgment, concluding that the general sessions court lacked both personal and subject matter jurisdiction. This appeal followed. We affirm.

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

          Stephen Harold Byrd, Knoxville, Tennessee, for the appellant, Andrew McKevitz.

          Cathy Honaker Morton, Maryville, Tennessee, for the appellee, Endeavor Metals Group, LLC.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Thomas R. Frierson II and Kenny W. Armstrong, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Andrew McKevitz ("McKevitz") filed suit against Endeavor Metals Group, LLC ("Endeavor") in Blount County General Sessions Court for alleged violations of the Telephone Consumer Protection Act ("TCPA") pursuant to 47 U.S.C. § 227 and 47 C.F.R. § 64.1200. On November 15, 2017, when Endeavor did not appear for the hearing in the case, the general sessions court entered a default judgment in favor of McKevitz against Endeavor for $24, 000, plus costs and taxes.

         Seven months later, on June 13, 2018, Endeavor commenced this action by filing a Complaint for Declaratory Judgment and Injunctive Relief in Blount County Circuit Court, seeking to set aside the default judgment on two grounds: (1) lack of personal jurisdiction because McKevitz served process upon an individual not authorized to accept service on behalf of Endeavor; and (2) lack of subject matter jurisdiction because Tennessee does not recognize a private right of action under the TCPA as required by 47 U.S.C. § 227(b)(3). McKevitz filed an Answer denying such allegations.

         Endeavor subsequently filed a motion for summary judgment that was properly supported by a statement of undisputed material facts, with each fact supported by citation to the record, as required by Tenn. R. Civ. P. 56.03. The supporting exhibits included the civil warrant compelling Endeavor to appear, the return of summons, the default judgment entered by the general sessions court, and an affidavit of Endeavor's authorized agent to receive service of process, setting forth that McKevitz served process on an individual who was neither him nor an individual who could otherwise accept service on Endeavor's behalf. McKevitz filed a response to Endeavor's motion and statement of undisputed material facts, in which he admitted some facts contained therein but disputed others, and McKevitz did not set forth any additional facts to be considered. As to those facts that McKevitz contended were in dispute, McKevitz did not provide citation to the record in support of such contentions as Tenn. R. Civ. P. 56.03 requires. Therefore, in ruling on Endeavor's motion for summary judgment, the trial court accepted as true all of the facts set forth in Endeavor's statement of undisputed material facts.

         The facts, relevant to the issue of personal jurisdiction, were that: (1) McKevitz effectuated service of process upon an individual who was not a partner, managing agent, officer, or agent of Endeavor; and (2) this individual was otherwise not an agent authorized to accept service of process on Endeavor's behalf. Based on these facts, the trial court concluded that Endeavor was not properly served with process and accordingly that the general sessions court lacked personal jurisdiction over Endeavor to enter a default judgment against Endeavor.

         The facts contained in Endeavor's statement of undisputed material facts that the trial court further accepted as true, relevant to the issue of subject matter jurisdiction, were that: (1) the TCPA allows a private right of action only if authorized by state law or state court rules; and (2) Tennessee has no such law or court rule allowing a private right of action. Based on these undisputed facts, the trial court concluded that the general sessions court lacked subject matter jurisdiction over the claim to enter a default judgment against Endeavor. Therefore, in an Order entered on December 4, 2018, with Nunc Pro Tunc to August 24, 2018, the trial court granted Endeavor's motion for summary judgment and set aside the default judgment. McKevitz appealed.

         McKevitz originally stated three issues for appeal.[1] However, we have determined that the dispositive issue is whether the trial court properly granted Endeavor's motion for summary judgment by concluding that there were no genuine issues of ...


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