Assigned on Briefs September 4, 2019
from the Circuit Court for Shelby County No. CT-004976-13
Gina C. Higgins, Judge
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
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.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
T. Finley, Memphis, Tennessee, pro se.
Nicholas Henry Adler, Brentwood, Tennessee, for the appellee,
Kondaur Capital Corporation.
D. Bennett, J., delivered the opinion of the Court, in which
John W. McClarty and Carma Dennis McGee, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
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.
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
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.
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. Kondaur
subsequently executed on the writ of possession.
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. 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.
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; ...