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Kondaur Capital Corp. v. Finley

Court of Appeals of Tennessee, Jackson

October 9, 2019

KONDAUR CAPITAL CORPORATION
v.
KEITH T. FINLEY

          Assigned on Briefs September 4, 2019

          Appeal from the Circuit Court for Shelby County No. CT-004976-13 Gina C. Higgins, Judge

         The mortgage holder on property in Cordova, Tennessee initiated foreclosure proceedings against the mortgagor in general sessions court and obtained a judgment. The mortgagor appealed to circuit court, the mortgage holder moved for summary judgment, and the circuit court ultimately granted summary judgment in favor of the mortgage holder. The circuit court denied the mortgagor's motion for relief pursuant to Tenn. R. Civ. P. 60.02, and this Court dismissed the mortgagor's appeal.

         In the case at issue in the present appeal, the mortgagor filed another motion for relief pursuant to Tenn. R. Civ. P. 60.02 in the circuit court, and the circuit court again denied the motion. We conclude that the mortgagor has failed to comply with the Tennessee Rules of Appellate Procedure and has waived all issues stated in his brief. Consequently, we dismiss the appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Keith T. Finley, Memphis, Tennessee, pro se.

          Nicholas Henry Adler, Brentwood, Tennessee, for the appellee, Kondaur Capital Corporation.

          Andy D. Bennett, J., delivered the opinion of the Court, in which John W. McClarty and Carma Dennis McGee, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         Keith T. Finley and Emma Craig owned real property located on Cross Ridge Road in Cordova, Tennessee. Kondaur Capital Corporation ("Kondaur") filed a detainer warrant in the general sessions court against Mr. Finley and Ms. Craig in September 2013, and the court granted Kondaur a writ of possession on November 4, 2013. Mr. Finley appealed the decision of the general sessions court to the circuit court.[1]

         Kondaur filed a motion for summary judgment in the trial court on December 9, 2013. On February 11, 2014, the trial court entered an order granting the plaintiff's motion for summary judgment and awarding Kondaur possession of the property. The court noted that the defendants "were not present at the hearing," but found that they "were properly noticed" and had filed a response. Mr. Finley filed a document he denominated a motion to set aside the judgment or a motion under Tenn. R. Civ. P. 60 on February 26, 2014, in which he argued that he did not receive fair notice of the hearing on the motion for summary judgment. On April 7, 2014, the trial court entered an order setting aside the judgment and resetting the motion for summary judgment for a hearing on the merits. Kondaur's motion for summary judgment was reheard on June 27, 2014. In an order entered on July 17, 2014, the trial court denied the motion without prejudice and encouraged the parties to "continue discovery efforts to ascertain the origin of the Note that was introduced by Defendant." Kondaur filed a motion for reconsideration and to alter or amend the judgment on July 30, 2014.

         On August 29, 2014, the trial court entered an order granting summary judgment in favor of Kondaur. Mr. Finley's counsel was not present at the August 22, 2014 hearing. The court found that the defendants "were properly noticed of the Motion and hearing date as shown by the certificate of service attached to the Motion." The court further found that "[t]he Plaintiff's Motion for Summary Judgment is well taken and Plaintiff is entitled to judgment as a matter of law." The trial court set aside and vacated its previous order as to paragraph one (in which the court denied the motion for summary judgment), granted the plaintiff's motion for summary judgment and awarded Kondaur possession of the property.

         The trial court denied Mr. Finley's motion to alter or amend the judgment in an order entered on December 5, 2014. Kondaur filed a motion to amend the judgment on February 3, 2015, to add omitted language, and the trial court entered an order on February 6, 2015, amending the judgment.[2] Kondaur subsequently executed on the writ of possession.

         On October 9, 2015, Mr. Finley filed a motion under Tenn. R. Civ. P. 60.02 requesting that the trial court set aside the August 29, 2014 order granting summary judgment and grant relief from the writ of possession. In a December 30, 2016 order, the trial court denied Mr. Finley's motion.[3] Mr. Finley appealed the trial court's decision to this Court and, on October 31, 2017, this Court entered an order dismissing the appeal for failure to comply with Rule 24 of the Tennessee Rules of Appellate Procedure.

         On October 16, 2018, Mr. Finley filed a document in the trial court entitled "Defendants' Motion to Vacate Void Judgment Pursuant to Federal Rule of Civil Procedure 60(b)(4)." In this motion, Mr. Finley asserted that the trial court's judgment dated August 29, 2014, should be vacated for lack of subject matter jurisdiction. He argued that he was never properly served with notice of the hearing. The trial court heard this motion on December 14, 2018; ...


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