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Warren Brothers Sash & Door Co. v. Santoro Custom Builders, Inc.

Court of Appeals of Tennessee, Nashville

January 8, 2020

WARREN BROTHERS SASH & DOOR COMPANY
v.
SANTORO CUSTOM BUILDERS, INC., ET AL.

          Session November 6, 2019

          Appeal from the Chancery Court for Williamson County No. 34103 James G. Martin, III, Judge

         Plaintiff filed a Tennessee Rule of Civil Procedure 69.04 motion to extend a 2008 default judgment entered against Defendant's company and Defendant in his personal capacity. Defendant filed a Rule 60.02(3) motion to set aside the default judgment with respect to himself in his individual capacity, asserting the judgment was void for lack of service. The trial court determined 1) Defendant had been served in the underlying matter, 2) that the judgment in the underlying case was not void, and 3) alternatively, if the judgment was invalid, "exceptional circumstances" justified the court's refusal to set it aside. We find that the 2008 default judgment was not void for lack of service and affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Kathleen Robson Gordon, Chicago, Illinois, for the appellant, Stacy Santoro.

          David O. Huff, Nashville, Tennessee, for the appellee, Warren Brothers Sash & Door Company.

          Carma Dennis McGee, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          CARMA DENNIS MCGEE, JUDGE

         I. Facts and Procedural History

         This appeal arises from a Tennessee Rule of Civil Procedure 69.04 motion filed by Plaintiff Warren Brothers Sash & Door Company ("Warren Brothers") in September 2017 to extend a default judgment entered by the trial court against Defendants Santoro Custom Builders, Inc. ("Santoro Builders") and Stacy Santoro, individually ("Mr. Santoro"; collectively, "Defendants") in February 2008. The underlying facts are largely undisputed. In November 2000, Santoro Builders, by and through its owner and agent, Mr. Santoro, established a purchase account with Warren Brothers. The parties executed a credit application which was also executed by Mr. Santoro as personal guarantor. Mr. Santoro guaranteed payment of the account, and Warren Builders supplied building materials on credit. The materials were used on eight job sites. Defendants did not pay the balance, and Warren Brothers recorded eight separate liens in September 2007. On November 5, 2007, Warren Brothers filed a complaint to enforce its liens and collect the balance of the account. Warren Brothers sought a judgment in the amount of $72, 142.07, including the unpaid balance of $64, 470.94, plus costs, attorneys' fees, and interest.

         In its complaint, Warren Brothers asserted that service could be made on Mr. Santoro at his residence in Brentwood, Tennessee. Summons was issued on November 8, 2007. On December 4, a deputy of the Maury County Sheriff's Office attempted service on Mr. Santoro at Santoro Builders' offices on Jim Warren Road in Spring Hill, Tennessee ("the Jim Warren address"). The summons return stated, "read to and left a copy at the business with Melissa Jackson." On December 28, Mr. Santoro indicated by email they were closing on homes and that "[t]he banks were working with [them]" to "get through this tough time."

         Warren Brothers filed a motion for default judgment and default judgment certificate in February 2008. The certificate states that the motion was served on Mr. Santoro at his home address in Brentwood and on Santoro Builders at the Jim Warren address. Defendants neither answered nor made an appearance in the matter. On February 19, 2008, the trial court entered a default judgment in the amount of $72, 142.07, plus interest at the rate of 10 percent per annum (as provided by statute at that time), against Santoro Builders and Mr. Santoro, jointly and severally. It also held that Warren Brothers was entitled to enforcement of its materialmen's liens against Santoro Builders' real property. In April 2008, the Williamson County Clerk and Master issued an Execution on Mr. Santoro, which was served on Mr. Santoro's attorney. The return on Execution stated that the attorney held no money and that the attorney "advised the Jim Warren address was best for service."

         Defendants were involved in three other lawsuits filed in 2007. Melissa Jackson ("Ms. Jackson") accepted service for Defendants at the Jim Warren address in Williamson County case #34096; in a second matter, an alias summons was issued and served on Mr. Santoro's attorney because it was believed Mr. Santoro had relocated to New York; in the third action, Lisa Martin accepted service for Defendants at the Jim Warren address.

         Warren Brothers filed its motion to extend the judgment in September 2017. The motion was served on Defendants at the Jim Warren address, a Harrah Drive address in Spring Hill, and a Pleasant Hill Road address in Franklin. In November 2017, Mr. Santoro filed a motion to quash service and to vacate the 2008 default judgment pursuant to Tennessee Rule of Civil Procedure 60.02(3). In his motion, Ms. Santoro asserted that he was never personally served with the complaint in the 2007 action. In the affidavit attached to his complaint, Mr. Santoro asserted that he had never resided at the Jim Warren address and that Ms. Jackson "is not and never has been an agent by ...


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