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Apexworks Restoration v. Scott

Court of Appeals of Tennessee, Nashville

October 24, 2019

APEXWORKS RESTORATION
v.
DEREK SCOTT ET AL.

          Session August 14, 2019

          Appeal from the Circuit Court for Davidson County No. 18C1399 Kelvin D. Jones, Judge.

         This case involves statutory interpretation of the requirements for service by private process servers in the General Sessions Courts and whether or not a party has been properly served. Plaintiff obtained default judgments in General Sessions Court against two individuals, a man and a woman, who were living together. Although the process server stated on the return that both parties had been served, only the man had been served. Three years later, in an effort to aid in the execution on the default judgments, the plaintiff had subpoenas issued against both defendants, but only the woman was served. The defendants then moved to quash the subpoena as against her and, additionally, to void the default judgments, alleging that the plaintiff had failed to properly serve them with the civil warrant and the subpoenas. The General Sessions Court denied the motion, and the defendants thereafter appealed to the trial court. Having found that only the man had been properly served with the civil warrant, the trial court affirmed the default judgment as against him and voided the default judgment as against the woman. Additionally, the trial court found that, while the judgment was void as against the woman, she had been properly served with the subpoena and was thus required to respond to it. Defendants appealed. We affirm the judgment of the trial court as modified.

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

          T. Blaine Dixon, Clarksville, Tennessee, for the appellants, Derek Scott, and Tracey McKinney.

          Scott D. Weiss, Nashville, Tennessee, for the appellee, Apexworks Restoration.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Carma Dennis McGee, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History

         On January 27, 2015, Apexworks Restoration ("Plaintiff") filed a civil action for breach of contract against Derek Scott and Tracey McKinney ("Defendants") in the General Sessions Court of Davidson County. On February 28, 2015, Thomas Gowan of Southern Process Servers personally served Mr. Scott with the civil warrant at his and Ms. McKinney's residence. Ms. McKinney, however, was not at home at the time and was not served with the civil warrant. Mr. Gowan, nevertheless, noted on the return that he had served both Mr. Scott and Ms. McKinney. The case was set to be heard on March 17, 2015, and, when Defendants failed to appear, the General Sessions Court entered default judgments against both of them on behalf of Plaintiff in the amount of $1, 272.98.

         On January 9, 2018, in an effort to aid in execution on the default judgments, Plaintiff had subpoenas issued against both Defendants. On this occasion, E. A. Fox of Southern Process Servers failed to serve Mr. Scott with the subpoena, [1] but he did serve Ms. McKinney at the residence on February 3, 2018. Because Ms. McKinney failed to appear on the date set by the subpoena, the General Sessions Court, on March 23, 2018, issued a show cause order. On May 14, 2018, Defendants filed a motion to quash the subpoena issued to Ms. McKinney and to void the default judgments entered against both of them. As to both requests, Defendants argued that Messrs. Gowan and Fox failed to comply with Tennessee Code Annotated section 16-15-901(b), asserting that they failed to include their addresses on the returns of the warrant and the subpoena, respectively, and that neither process server was properly "designated" to serve process pursuant to Tennessee Code Annotated section 16-15-901(a). The General Sessions Court denied Defendants' motion, and, on May 29, 2018, Defendants appealed to the Circuit Court of Davidson County (the "trial court").

         The appeal was heard on November 28, 2018, and the trial court entered its order on December 10, 2018. In its order, the trial court found that Mr. Scott had accepted personal service by signing the civil warrant but that Ms. McKinney had not been properly served. Additionally, the trial court found that, by her counsel's own admission during the hearing, Ms. McKinney did receive personal service of the January 9, 2018 subpoena. Accordingly, the trial court upheld the default judgment against Mr. Scott but rendered it void ab initio as against Ms. McKinney. The trial court also ordered that Ms. McKinney respond to the subpoena issued by the General Sessions Court within a reasonable time. Ultimately, the trial court remanded the case to the General Sessions Court, where execution upon the default judgment against Mr. Scott could commence. Defendants timely appealed.

          Issues Presented

         On appeal, Defendants raise three issues for our review, which we rephrase as follows:

1. Whether the trial court erred in finding that Mr. Scott, by signing the February 28, 2015 civil warrant and accepting it, waived insufficient service of process when the process server had not been designated to serve the warrant and did not make a proper return of service of the warrant by failing to include his address on the return.
2. Whether the trial court erred in concluding that Ms. McKinney was subject to the January 9, 2018 subpoena after it had rendered void ab initio the default judgment against her.
3. Whether the trial court erred in finding that Ms. McKinney was properly served with the subpoena when the process server had not been designated to serve the subpoena and did not make a proper return of service of the subpoena by failing to include his address on the return.

         Plaintiff raises one additional issue: whether Defendants' motion to void the default judgments was untimely filed and, thus, the General Sessions Court lacked jurisdiction to rule on the matter. Plaintiff also requests that this Court include an award of reasonable attorney's fees in the amount of $2, 000.00 to be added to the judgment from the General Sessions Court.

         Standard of Review

         In non-jury cases, appellate courts review the trial court's factual findings de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review the trial court's resolution ...


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