Session March 7, 2019
from the Circuit Court for Davidson County No. 18C1640
Hamilton V. Gayden, Jr., Judge
credit union initiated this action on December 12, 2007, by
filing a civil warrant to recover an amount alleged to be due
on an account. On June 14, 2011, after several unsuccessful
attempts to serve the warrant, a return on service was filed
indicating that the defendant had been served with the
warrant; a default judgment in the amount of $13, 717.79 was
entered on July 25, 2011. The credit union levied on the
defendant's bank account on April 25, 2018, following
which the defendant moved the general sessions court to set
aside the judgment on the ground that service of the warrant
was defective and the judgment was void; the court granted
the motion and set the case for trial. Before the trial could
be held, the credit union appealed to the circuit court,
where the defendant moved for summary judgment to affirm the
general sessions court's order setting aside the
judgment. The circuit court dismissed the action pursuant to
Tennessee Rule of Civil Procedure Rule 12.02(3), holding that
service of the warrant was not in compliance with the
applicable statutes. The credit union appeals. Upon our
de novo review, we have determined that the record
does not show that the defendant was duly served with the
warrant that led to the default judgment and, as a result,
the judgment entered against him is void. Because of the
current proceeding, however, trial on the merits has not been
held. Accordingly, we affirm the holding of the circuit court
that the judgment of the general sessions court is void,
modify the judgment of the circuit court to reinstate the
credit union's cause of action, and remand the case to
the circuit court with instruction to remand it to the
general sessions court for trial.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Modified in Part; Case
Charles Michels, Nashville Tennessee, for the appellant,
Cornerstone Financial Credit Union.
M. Anthony, Nashville, Tennessee, for the appellee, Joshua
Richard H. Dinkins, J., delivered the opinion of the court,
in which Frank G. Clement, Jr., P.J., M.S., and Andy D.
Bennett, J., joined.
RICHARD H. DINKINS, JUDGE.
Factual and Procedural History
Financial Credit Union initiated this action by filing a
civil warrant in Davidson County General Sessions Court on
December 12, 2007, against Joshua Mundy, seeking to recover
the $10, 752.10 balance due on an account plus interest,
attorney fees, and costs. The warrant, bearing a service
address of 2310 Siefried Street, Nashville, was returned
unserved on January 3, 2008, signed by a "C.
Prater" with the notation "Joshua Mundy is not to
be found in my county, other, not at address listed." A
second warrant, issued on July 21, 2008, and listing a
service address of Post Office Box 280471, Nashville, was
returned on July 29. A third warrant, issued on June 16,
2009, bearing a service address of 1615 Underwood Street,
Nashville, was returned June 22; both were signed as unserved
by the same server. A fourth warrant, issued on June 8, 2011,
for service at 1615 Underwood Street, Nashville, was returned
signed by "J. Smith" on June 14, with the notation
"served Joshua Mundy"; the warrant states that a
hearing was set for July 25. On that day, a default judgment
was entered against Mr. Mundy in the amount of $13, 717.79
("the July 25 Judgment").
seven years later, on April 25, 2018, Cornerstone levied upon
Mr. Mundy's account at Pinnacle National Bank, seeking
$20, 900.49 and capturing $17, 481.12. On May 21, Mr. Mundy
moved the general sessions court to set aside the default
judgment pursuant to Tennessee Rule of Civil Procedure
60.02(5) and to quash the levy, arguing that service of the
warrant was defective and, accordingly, the court did not
have personal jurisdiction over Mr. Mundy when it entered the
judgment, thereby rendering the judgment void; he supported
the motion with his affidavit. Cornerstone responded, and the
motion was heard on May 31. The court entered an order on
June 22, 2018, setting aside the July 25 Judgment and setting
the case for a trial on August 1.
appealed the general sessions court's ruling to Davidson
County Circuit Court on June 25, 2018. Mr. Mundy moved for
summary judgment, and filed a statement of undisputed
material facts, supported by the same affidavit he had filed
in general sessions court, and the affidavit of his counsel,
David Anthony. Mr. Mundy argued that the court did not have
personal jurisdiction over him and accordingly, the case
should be either dismissed or remanded to the general
sessions court. In turn, Cornerstone responded to the motion
for summary judgment, moved the circuit court to dismiss the
Motion to Set Aside that Mr. Mundy had filed in the general
sessions court, arguing that Mr. Mundy should have filed a
common law or statutory writ of certiorari instead, and to
set the case for trial.
trial court heard all motions on August 17 and entered an
order on August 24, dismissing the case pursuant to Tennessee
Rule of Civil Procedure 12.02, holding that the return of
process on the default judgment warrant "does not state
the process server's address and does not describe the
manner of service" and, consequently, that the service
did not comply with Tennessee Code Annotated sections
and 16-15-902(a). Cornerstone appeals, stating two issues:
1.Whether the Trial Court erred when it held that the general
sessions court lacked personal jurisdiction over Appellee at
the time the general sessions court granted Appellant's
July 25, 2011 judgment against Appellee, rendering the 2011
judgment void because the return of process, personally
served upon Appellee, does not include: a) the address of the
process server, the Davidson County Sheriff's Office; and
b) a description of the manner of service, instead stating,
"[c]ame to hand same day issued and executed as
commanded on: served Joshua Mundy."
2.Whether the Trial Court erred when it failed to grant
Appellant's Motion to Dismiss Appellee's Motion to
Set Aside Judgment on the ground that such action should have
been brought by statutory or common law writ of certiorari.
noted in Gordon v. Greenview Hosp., Inc., 300 S.W.3d
635, 643 (Tenn. 2009)), questions regarding the court's
exercise of personal jurisdiction should be raised and
decided pursuant to Tennessee Rule of Civil Procedure
12.02(2), notwithstanding the fact that matters outside the
pleadings may be considered. "The plaintiff bears the
ultimate burden of demonstrating that the trial court may
properly exercise personal jurisdiction over a
defendant." Id. (citing Chenault v.
Walker, 36 S.W.3d 45, 56 (Tenn. 2001); Davis Kidd
Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572,
577 (Tenn. Ct. App. 1992). A defendant who takes issue with
personal jurisdiction may file a Rule 12.02(2) motion, which
may be supported by affidavit or other evidentiary materials.
Gordon, 300 S.W.3d at 643-44. If the defendant
supports the motion with affidavits, the plaintiff "must
establish its prima facie showing of personal jurisdiction
over the defendant by filing its own affidavits or other
written evidence." Id. at 644 (citing
Chenault, 36 S.W.3d at 56 and Mfrs. Consolidation
Serv., Inc. v. Rodell, 42 S.W.3d 846, 854-55 (Tenn. Ct.
App. 2000)). "A decision regarding the exercise of
personal jurisdiction over a defendant involves a question of
law . . . [and] the appellate courts will review a trial
court's decision to grant or deny a Tenn. R. Civ. P.
12.02(2) motion de novo with no presumption of
correctness…." Id. at 645.
analysis, we are also guided by the Tennessee Supreme
Court's discussion of jurisdiction and judgments in
Turner v. Turner:
A. Jurisdiction Generally
The lawful authority of a court to adjudicate a controversy
brought before it depends upon that court having jurisdiction
of the subject matter and jurisdiction of the parties. . . .
Personal jurisdiction refers to the power of a court over the
parties to the controversy to render a binding judgment.
. . . [P]ersonal jurisdiction recognizes and protects an
individual liberty interest that flows from the Due Process
Clause and requires that maintenance of the suit "not
offend 'traditional notions of fair play and substantial
justice.'" "It represents a restriction on
judicial power not as a matter of sovereignty, but as a
matter of individual liberty." Because the requirement
of personal ...