Assigned on Briefs May 1, 2019
from the Circuit Court for Davidson County No. 16C2095
Hamilton V. Gayden, Jr., Judge
creditor filed suit in general sessions court to collect an
outstanding debt alleged to be due on a sworn account. The
debtor's counsel permitted the creditor to take a default
judgment and appealed the judgment to the circuit court. In
circuit court, the debtor filed a motion to strike three
affidavits filed by the creditor. Later, the debtor filed
another motion to strike the creditor's affidavits and a
motion to dismiss for improper service of process. The trial
court denied the debtor's motions to strike and to
dismiss and entered judgment for the creditor in the amount
of the claimed debt. On appeal, the debtor argues that the
trial court erred in denying her motions and in admitting
into evidence the documents by which the creditor proved the
debt. We affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
E. Kirby, Nashville, Tennessee, for the appellant, Thuy Chau.
Kim, Knoxville, Tennessee, for the appellee, Midland Funding,
D. Bennett, J., delivered the opinion of the Court, in which
John W. McClarty and Carma D. McGee, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
dispute at issue in this appeal began on March 21, 2014, when
Midland Funding, LLC ("Midland"), as successor in
interest to Chase Bank USA, N.A. ("Chase"), filed a
civil warrant in general sessions court against Thuy Chau to
collect an outstanding debt alleged to be due on a sworn
account in the amount of $12,467.88. The summons was served
by private process on April 28, 2014. Attached to the civil
warrant was the affidavit of Tanya Johnson, an officer of
Midland, who testified to Midland's maintenance of
account records and to her review of the records pertaining
to the account at issue in this case.
27, 2016, Midland filed a Notice of Intent to Introduce
Business Records Pursuant to Tenn. R. Evid. 803(6) and
902(11) with the following documents attached: (1)the
certification of Sheri Meline to the accuracy of the records;
(2) a May 14, 2012 bill of sale between Equable Ascent
Financial, LLC, and Midland; (3) a portion of the list of
receivables referenced in the bill of sale including the
Chase account at issue; and (4) a bank statement for the
Chase bank account at issue for July 13, 2009, through August
12, 2009, showing a balance of $12,467.88. On August 4, 2016,
Ms. Chau's counsel permitted Midland to take a judgment
by default in the general sessions court.
Chau appealed the general sessions judgment to the circuit
court. On June 16, 2017, Midland filed a second notice to
introduce business records with similar documents attached;
the certifying affidavit was completed by a different Midland
employee, Mickaela Johnson. On August 21, 2017, Ms. Chau
filed a motion to strike Midland's affidavits from Tanya
Johnson, Sheri Meline, and Mickaela Johnson. Midland filed a
third notice to introduce business records on January 16,
2018, with the following documents attached: (1) the
certification of Emily Walker to the accuracy of the records;
(2)the May 14, 2012 bill of sale between Equable Ascent
Financial, LLC, and Midland; (3) a May 8, 2009 bill of sale
between Chase and Hilco Receivables, LLC; (4) an Affidavit of
Sale of Account by Original Creditor dated March 29, 2011;
(5) a certification by the Delaware Secretary of State
regarding the certificate of merger of Hilco Receivables,
LLC, and Equable Ascent Financial, LLC; (6) a portion of the
list of receivables referenced in the bill of sale; and (7) a
bank statement for the Chase bank account for July 13, 2009,
through August 12, 2009.
Chau filed a second motion to strike Midland's affidavits
on June 22, 2018, again requesting that the court strike the
affidavits of Tanya Johnson, Sheri Meline, and Mickaela
Johnson. On that same day, Ms. Chau filed a motion to dismiss
for improper service of process. Midland opposed both of
these motions. On July 2, 2018, Midland filed a notice of
withdrawal of the certifications of Sheri Meline and Mickaela
day of trial, July 9, 2018, Ms. Chau filed a sworn statement
denying that she owed the requested sum. The court denied Ms.
Chau's motion to dismiss for improper service on the
ground that Ms. Chau, through counsel, had "made one or
more general appearances" without raising the issue and
had, therefore, waived the objection. The trial court
determined that Ms. Chau's motion to strike Midland's
affidavits was irrelevant or moot. Furthermore, the court
noted that Ms. Chau did not object to the affidavit of Emily
Walker, and the documents she certified were sufficient to
prove Ms. Chau's indebtedness and to meet Midland's
burden of proof. The court entered judgment against Ms. Chau
in the amount of $12,467.88 plus costs.
Chau filed a notice of appeal on August 23, 2018. A statement
of the evidence filed by Ms. Chau was denied by the trial
court. The trial court prepared a document entitled,
"Findings of Fact and Conclusions of Law and Statement
of Evidence," which was filed on December 4, 2018, and
submitted with the record on appeal.
appeal, Ms. Chau raises three issues: (1) whether the trial
court erred in finding that she waived the issue of
insufficient service of process; (2) whether the trial court
erred in admitting the affidavit of Emily Walker into
evidence; and (3) whether the trial court erred in admitting
business records into evidence pursuant to Tenn. Code Ann.
§ 47-22-301 and the Rules of Evidence.
bench trial, our review is de novo upon the record,
accompanied by a presumption of correctness of the trial
court's findings of fact, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Gregg v.
Estate of Cupit, No. M2018-00379-COA-R3-CV, 2018 WL
5733289, at *3 (Tenn. Ct. App. Oct. 31, 2018); Nashville
Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d
415, 424-25 (Tenn. Ct. App. 2005). We afford the trial
court's credibility determinations great deference
because the trial court is able to assess the witnesses'
demeanor as they testify. Wells v. Tenn. Bd. of
Regents, 9 S.W.3d 779, 783 (Tenn. 1999). We review the
trial court's legal conclusions de novo with no
presumption of correctness. Nashville Ford Tractor,
194 S.W.3d at 425.
review a trial court's decisions regarding the admission
or exclusion of evidence under an abuse of discretion
standard. Mercer v. Vanderbilt Univ., Inc., 134
S.W.3d 121, 131 (Tenn. 2004). A trial court abuses its
discretion "when it 'applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or
reasoning that cause[s] an injustice to the party
complaining.'" Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). Under the
abuse of discretion standard, we are required to uphold the
trial court's ruling "as long as reasonable minds
could disagree about its ...