                                                                                         05/29/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs May 1, 2019

       ENDEAVOR METALS GROUP LLC v. ANDREW MCKEVITZ

                  Appeal from the Circuit Court for Blount County
                     No. E-28069 David Reed Duggan, Judge
                     ___________________________________

                           No. E2018-01724-COA-R3-CV
                       ___________________________________

This appeal arises from an action in the circuit court to set aside a default judgment
entered in the general sessions court as void on the grounds the general sessions court
lacked both personal and subject matter jurisdiction. After the judgment creditor filed his
answer, the judgment debtor moved for summary judgment on these issues. Per the
requirements of Tenn. R. Civ. P. 56.03, the judgment debtor filed a statement of
undisputed material facts supported by citation to the record that the individual upon
whom service of process was effectuated was not a partner, managing agent, officer, or
an agent authorized to accept service of process on its behalf. In his response to the
motion, the judgment creditor agreed that some of the facts were undisputed but disputed
others; however, in contravention of Tenn. R. Civ. P. 56.03, he did not cite to the record
in support of the facts to which he contended there was a dispute. Accordingly, the circuit
court deemed all of the facts in the statement of undisputed material facts to be
undisputed. Based on the undisputed facts, the circuit court granted summary judgment,
concluding that the general sessions court lacked both personal and subject matter
jurisdiction. This appeal followed. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON II and KENNY W. ARMSTRONG, JJ., joined.

Stephen Harold Byrd, Knoxville, Tennessee, for the appellant, Andrew McKevitz.

Cathy Honaker Morton, Maryville, Tennessee, for the appellee, Endeavor Metals Group,
LLC.

                                       OPINION

       Andrew McKevitz (“McKevitz”) filed suit against Endeavor Metals Group, LLC
(“Endeavor”) in Blount County General Sessions Court for alleged violations of the
Telephone Consumer Protection Act (“TCPA”) pursuant to 47 U.S.C. § 227 and 47
C.F.R. § 64.1200. On November 15, 2017, when Endeavor did not appear for the hearing
in the case, the general sessions court entered a default judgment in favor of McKevitz
against Endeavor for $24,000, plus costs and taxes.

       Seven months later, on June 13, 2018, Endeavor commenced this action by filing a
Complaint for Declaratory Judgment and Injunctive Relief in Blount County Circuit
Court, seeking to set aside the default judgment on two grounds: (1) lack of personal
jurisdiction because McKevitz served process upon an individual not authorized to accept
service on behalf of Endeavor; and (2) lack of subject matter jurisdiction because
Tennessee does not recognize a private right of action under the TCPA as required by 47
U.S.C. § 227(b)(3). McKevitz filed an Answer denying such allegations.

        Endeavor subsequently filed a motion for summary judgment that was properly
supported by a statement of undisputed material facts, with each fact supported by
citation to the record, as required by Tenn. R. Civ. P. 56.03. The supporting exhibits
included the civil warrant compelling Endeavor to appear, the return of summons, the
default judgment entered by the general sessions court, and an affidavit of Endeavor’s
authorized agent to receive service of process, setting forth that McKevitz served process
on an individual who was neither him nor an individual who could otherwise accept
service on Endeavor’s behalf. McKevitz filed a response to Endeavor’s motion and
statement of undisputed material facts, in which he admitted some facts contained therein
but disputed others, and McKevitz did not set forth any additional facts to be considered.
As to those facts that McKevitz contended were in dispute, McKevitz did not provide
citation to the record in support of such contentions as Tenn. R. Civ. P. 56.03 requires.
Therefore, in ruling on Endeavor’s motion for summary judgment, the trial court
accepted as true all of the facts set forth in Endeavor’s statement of undisputed material
facts.

        The facts, relevant to the issue of personal jurisdiction, were that: (1) McKevitz
effectuated service of process upon an individual who was not a partner, managing agent,
officer, or agent of Endeavor; and (2) this individual was otherwise not an agent
authorized to accept service of process on Endeavor’s behalf. Based on these facts, the
trial court concluded that Endeavor was not properly served with process and accordingly
that the general sessions court lacked personal jurisdiction over Endeavor to enter a
default judgment against Endeavor.

        The facts contained in Endeavor’s statement of undisputed material facts that the
trial court further accepted as true, relevant to the issue of subject matter jurisdiction,
were that: (1) the TCPA allows a private right of action only if authorized by state law or
state court rules; and (2) Tennessee has no such law or court rule allowing a private right
of action. Based on these undisputed facts, the trial court concluded that the general
                                            -2-
sessions court lacked subject matter jurisdiction over the claim to enter a default
judgment against Endeavor. Therefore, in an Order entered on December 4, 2018, with
Nunc Pro Tunc to August 24, 2018, the trial court granted Endeavor’s motion for
summary judgment and set aside the default judgment. McKevitz appealed.

       McKevitz originally stated three issues for appeal.1 However, we have determined
that the dispositive issue is whether the trial court properly granted Endeavor’s motion
for summary judgment by concluding that there were no genuine issues of material fact,
and Endeavor was entitled to judgment as a matter of law.

                                       STANDARD OF REVIEW

       We review a trial court’s decision on a motion for summary judgment de novo
without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC,
477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997)). Accordingly, this court must make a fresh determination of whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955
S.W.2d 49, 50 (Tenn. 1997). In so doing, we consider the evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.
Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

                                               ANALYSIS

        Summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. A “genuine issue” exists if “a
reasonable jury could legitimately resolve that fact in favor of one side or the other.”
Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A fact is material “if it must be decided
in order to resolve the substantive claim or defense at which the motion is directed.” Id.

       “The moving party has the ultimate burden of persuading the court that there are
no genuine issues of material fact and that the moving party is entitled to judgment as a
matter of law.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008) (citing
Byrd, 847 S.W.2d at 215). The summary judgment rules also require the moving party to

       1
           McKevitz framed the issues as follows:

       1.        Does the State of Tennessee allow a private right of action under 47 U.S.C. § 227
                 or CFR 64.1200?
       2.        Did Blount County General Sessions Court have persona [sic] jurisdiction over
                 Appellee Endeavor Metals Group LLC?
       3.        Did Appellant Andrew McKevitz make adequate citations to the record relating to
                 Appellee’s Statement of Material Facts Not in Dispute?
                                                    -3-
support its motion with “a separate concise statement of the material facts as to which the
moving party contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each
fact shall be set forth in a separate, numbered paragraph” and “supported by a specific
citation to the record.” Id.

       If the moving party makes a properly-supported motion, “the nonmoving party is
required to produce evidence of specific facts establishing that genuine issues of material
fact exist.” Martin, 271 S.W.3d at 84 (citations omitted). Additionally, the nonmoving
party must respond to the moving party’s statement of undisputed material facts by
“either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undisputed for
purposes of ruling on the motion for summary judgment only, or (iii) demonstrating that
the fact is disputed.” Tenn. R. Civ. P. 56.03. That is, just like the moving party must
support the material facts that it contends are undisputed “by a specific citation to the
record,” the nonmoving party must also support each material fact that it contends is
disputed “by specific citation to the record.” Id. This court has indeed stated that
“[p]arties on both sides of a summary judgment motion must heed” the summary
judgment standards. Robinson v. Currey, 153 S.W.3d 32, 39 (Tenn. Ct. App. 2004). A
nonmoving party therefore “cannot take [a motion for summary judgment] lightly and is
required to demonstrate why granting [the] motion . . . would be inappropriate.” Knapp v.
Holiday Inns, Inc., 682 S.W.2d 936, 940 (Tenn. Ct. App. 1984).

       Here, Endeavor filed a motion for summary judgment and a statement of
undisputed material facts, supported by citation to exhibits in the record. In so doing,
Endeavor satisfied the requirements of the summary judgment rules. McKevitz responded
to the motion and statement of undisputed material facts, agreeing that some facts were
undisputed but disputing others. However, McKevitz did not support each disputed fact
“by specific citation to the record,” thereby failing to both properly “demonstrat[e] that
the fact[s] [were] disputed” and to comply with the summary judgment rules. See Tenn.
R. Civ. P. 56.03. Therefore, because McKevitz agreed that some facts in Endeavor’s
statement of undisputed material facts were undisputed and failed to properly dispute the
others, the trial court properly deemed all the material facts in Endeavor’s statement of
undisputed material facts to be undisputed. And because McKevitz did not set forth any
additional facts to be considered in responding to Endeavor’s statement of undisputed
material facts, we consider only those facts set forth in Endeavor’s statement in deciding
whether summary judgment was properly granted.2

        2
           McKevitz’s appellate argument relies on numerous facts, as stated in his brief, that are not in the
trial court record. We decline to consider them. See Tenn. R. App. P. 13(c) (other than facts subject to
judicial notice or facts discretionarily considered upon motion, appellate consideration of facts extends
only to those facts set forth in the record in the trial court and established by evidence). Further, to the
extent some of these facts McKevitz presents on appeal were also presented in his Answer or Response to
Motion for Summary Judgment, we will not consider them for two reasons. First, parties’ statements of
material facts regarding a motion for summary judgment are “‘intended to alert the court to precisely what
factual questions are in dispute and point the court to specific evidence in the record that supports a
                                                    -4-
       The facts set forth in Endeavor’s statement of undisputed material facts that are
relevant to the question of personal jurisdiction are that the individual who was served by
McKevitz and who signed the return receipt of service was not a partner, managing agent,
officer, or agent of Endeavor, and the individual was not authorized to accept service on
behalf of Endeavor. These facts establish that McKevitz did not deliver a copy of the civil
warrant in this case “to an officer or managing agent” of Endeavor, “or to an agent
authorized by appointment or by law to receive service on behalf of” Endeavor. Tenn. R.
Civ. P. 4.04(3). Therefore, the general sessions court lacked personal jurisdiction over
Endeavor. See Turner v. Turner, 473 S.W.3d 257, 271 (Tenn. 2015) (proper service of
process is necessary for a court to obtain personal jurisdiction over a defendant). A
court’s judgment is void if the court lacked personal jurisdiction when it rendered the
judgment. Id. at 270 (citations omitted). Accordingly, Endeavor was entitled to relief
from the default judgment as a matter of law.3 See Ramsay v. Custer, 387 S.W.3d 566,
569 (Tenn. Ct. App. 2012) (“[T]he Court properly vacated the default judgment as
service of process that does not meet the requirements of Rule 4 is void and a judgment
based on void service is a void judgment.”)

      Because it is undisputed that McKevitz did not properly serve Endeavor with
process, we affirm the grant of summary judgment. As this issue is dispositive, we need
not and do not reach the issue of whether there is a private right of action under the
TCPA.




party’s position on each of these questions.’” Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn.
Ct. App. 2003) (quoting Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App.
2001)). The court should not have to proceed further without them. Id. Therefore, even if evidence is
otherwise in the record, it need not be considered at the summary judgment stage if not properly set forth
in a statement of undisputed material facts that complies with Tenn. R. Civ. P. 56.03. Second, at the
summary judgment stage, a party may not simply “rest upon the mere allegations or denials of [its]
pleading . . . .” Tenn. R. Civ. P. 56.06.
        3
           Additionally, McKevitz now concedes in his brief that Endeavor was not served with sufficient
process. McKevitz argues, however, that Endeavor never made a limited scope appearance in the
underlying action in general sessions court and that, therefore, Endeavor made a general appearance,
thereby waiving the issue of personal jurisdiction. See Landers v. Jones, 872 S.W.2d 674, 675 (Tenn.
1994) (reasoning that “one method of waiver is by making a voluntary ‘general appearance’ before the
court in order to defend the suit on the merits, rather than a ‘special appearance’ for the purpose of
contesting personal jurisdiction”). McKevitz presents this argument for the first time on appeal and has
accordingly waived the argument. See Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn.
2010) (“It is axiomatic that parties will not be permitted to raise issues on appeal that they did not first
raise in the trial court.”) (citations omitted).
                                                   -5-
                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Andrew McKevitz.


                                                 ________________________________
                                                 FRANK G. CLEMENT JR., P.J., M.S.




                                          -6-
