Session August 14, 2019
from the Circuit Court for Davidson County No. 18C1399 Kelvin
D. Jones, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed as Modified and Remanded
Blaine Dixon, Clarksville, Tennessee, for the appellants,
Derek Scott, and Tracey McKinney.
D. Weiss, Nashville, Tennessee, for the appellee, Apexworks
B. Goldin, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Carma Dennis McGee, J.,
B. GOLDIN, JUDGE
and Procedural History
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.
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,
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").
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.
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
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.
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
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 ...