                                                                                        06/13/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               January 26, 2017 Session

   KNOX COUNTY, TENNESSEE ET AL. V. DELINQUENT TAXPAYERS
                          ET AL.

                  Appeal from the Chancery Court for Knox County
                    No. 187088-1    John F. Weaver, Chancellor


                            No. E2016-01750-COA-R3-CV



This case involves an attempt by Omer G. Kennedy and Angela Helms (landowners) to
exercise their right of redemption with respect to their property sold at a delinquent tax
sale. Jon Johnson (tax sale purchaser) bought the property on January 13, 2015. Within
the one-year redemption period, landowners paid $37,892.81, the amount they thought
was required to redeem the property. Tax sale purchaser filed a motion for additional
funds, consisting of payments he had made for insurance on the property and interest,
under Tenn. Code Ann. § 67-5-2701 (Supp. 2016). The trial court granted the motion in
an order entered January 11, 2016. The order gave landowners 30 days to pay the
additional amount. Because notice of the order was not sent to their last known address,
landowners did not receive the notice until after the 30 days had passed. They paid the
additional amount of $5,869.43 on February 18, 2016. Tax sale purchaser moved the
court to deny the redemption, arguing that the payment was not timely. The trial court
denied the motion, holding that its order of January 11, 2016, was void because it was not
effectively entered under Tenn. R. Civ. P. 58. and not effectively served under Tenn. R.
Civ. P. 5. Alternatively, the trial court ruled that landowners were entitled to relief for
excusable neglect under Tenn. R. Civ. P. 60. Tax sale purchaser appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Sheila B. Stevenson, Nashville, Tennessee, for appellant, Jon Johnson.

Albert J. Harb, Knoxville, Tennessee, for appellees, Omer G. Kennedy and Angela
Helms.
                                        OPINION

                                             I.

       The property is a three-acre tract located at 2720 Thorngrove Pike, in an industrial
area of East Knoxville. Landowners use the property to run their business, Metro Trailer
Repair. Their daughter and business manager, Melissa Kennedy, testified that, although
there is a mailbox at the property, they use a P.O. Box exclusively for their business
operations, and had done so for at least 21 years. She said that the mailbox at 2720
Thorngrove Pike had been frequently vandalized and that the only mail that arrived there
consisted of advertisements and other junk mail.

       This case was initiated on March 10, 2014, when Knox County filed a complaint
for collection of delinquent property taxes. The property was among those listed as
subject to a tax lien for delinquent payment of taxes. Attached to the complaint was an
exhibit, which contained, among other things, a description of the property. There are
two mailing addresses of record listed: P.O. Box 6702 in Knoxville, and 3835 Admiralty
Lane, also in Knoxville. The record reflects that Knox County sent tax notices regarding
the property to P.O. Box 6702.

       The tax sale took place on January 13, 2015. The trial court entered an order on
February 13, 2015 confirming the sale and vesting the property in the tax sale purchaser,
subject to the one-year right of redemption. On November 2, 2015, landowners filed a
motion to redeem the property. They paid into court the purchase price of the tax sale
plus interest, an amount totaling $37,892.81. Tax sale purchaser filed a motion for
additional funds, pursuant to Tenn. Code Ann. § 67-5-2701, which at that time had been
recently amended1 to provide, in pertinent part, as follows:

              (d) The purchaser may within thirty (30) days after the
              mailing of the notice of redemption, file a response seeking
              additional funds to be paid by the proposed redeemer to
              compensate the purchaser for amounts expended by the
              purchaser for the purposes set out in subsection (e). . . . If no
              response is timely filed, the court shall determine whether the
              redemption has been properly made, and if so, shall cause an
              order to be entered requiring the proposed redeemer to pay
              additional interest at the rate set forth in subsection (b),


       1
        The amendment, which became effective July 1, 2014, rewrote section 2701 to provide,
among other things, for a higher interest rate. See 2014 Tenn. Pub. Acts Ch. 883.
                                            -2-
              accruing from the date the motion to redeem was filed until
              the date of such payment.

              (e) Additional sums to be paid by the proposed redeemer at
              the demand of the purchaser, shall include the following:

                                   *      *         *

              (2) Reasonable payments made by the purchaser for insurance
              on the parcel and any improvements thereon;

                                   *      *         *

              and

              (6) Additional interest at the rate set out in subsection (b),
              accruing from the date the motion to redeem was filed until
              the date the purchaser’s response was filed.

Tax sale purchaser sought additional interest and reimbursement for the cost of insurance
on the property. A hearing took place on December 10, 2015. The business manager,
Kennedy, was present as a non-attorney representative of landowners. The trial court
granted tax sale purchaser’s motion for additional funds. Kennedy testified that at the
conclusion of the hearing, she requested the attorney for tax sale purchaser, and the trial
court clerk, to mail a copy of the trial court’s order to the landowners’ address of record
at P.O. Box 6702.

        On January 11, 2016, the trial court entered the order of redemption requiring
landowners to pay an additional $5,869.81 to complete their redemption of the property.
The order provided that “[i]f the funds are not paid to the Clerk and Master within thirty
(30) days of entry of this Order, the Motion to Redeem shall be denied,” citing the time
limitations mandated by Tenn. Code Ann. § 67-5-2701(f)-(h). The certificate of service
states that counsel for tax sale purchaser mailed a copy of the order to 2720 Thorngrove
Pike, the property address. On February 17, 2016, some thirty-seven days after the entry
of the order of January 11, 2016, the trial court clerk, Becky Perry, called Kennedy.
According to Kennedy’s affidavit, Perry called to tell her “that the time had expired to
pay the additional amounts, but we should get the money down to the court as quickly as
possible.” The next day, landowners tendered a cashier’s check in the amount of
$5,869.81 to Perry, which she accepted.



                                              -3-
        On February 18, 2016, tax sale purchaser filed a “motion to deny redemption by
taxpayers,” arguing that the payments were not timely filed, thereby, in effect, voiding
the redemption. Landowners opposed the motion on the ground that they did not receive
notice of the trial court’s January 11, 2016, order until after the 30 days had passed. The
trial court held a hearing on July 12, 2016, at which Kennedy and Perry testified. Perry
stated that she remembered a request on landowners’ behalf to mail a copy of the order to
their P.O. Box, but she could not remember the address to which she actually mailed the
copy. The trial court found that P.O. Box 6702 was “not just the last known address. It’s
the first known address. It’s in the complaint.” The court further noted landowners’
evidence that they requested the order be sent to the P.O. Box. This evidence was
unrebutted. In its final judgment entered August 5, 2016, the trial court ruled as follows:

              The order of this Court dated January 11, 2016 was not
              effectively served under Rule 5 of the Tennessee Rules of
              Civil Procedure and not effectively entered under Rule 58 of
              the Tennessee Rules of Civil Procedure.

              Pursuant to Rule 60, [landowners] are entitled to relief from
              the order dated January 11, 2016 and the order of January 11,
              2016 is hereby set aside and that said order is void.

              A new order shall be submitted to the Court for entry as to the
              hearing held on December 10, 2015. The order shall reflect
              that the property owners, Omer G. Kennedy and Angela
              Helms, have paid the sum of $5,869.43 in satisfaction of the
              tax sale purchaser’s additional funds necessary for
              redemption.

(Numbering in original omitted.) Tax sale purchaser timely filed a notice of appeal.

                                            II.

      The issue presented is whether the trial court erred in setting aside and voiding its
January 11, 2016, order because it was not effectively served under Tenn. R. Civ. P. 5
and not effectively entered under Tenn. R. Civ. P. 58.

                                           III.

       When, as here, the trial court sits without a jury, we review the trial court’s
findings of fact in the record with a presumption of correctness, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P.
                                           -4-
13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review a trial
court’s conclusions of law under a de novo standard with no presumption of correctness
attaching to the trial court’s legal conclusions. Campbell v. Florida Steel Corp., 919
S.W.2d 26, 35 (Tenn. 1996); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn. 1993).

                                            IV.

       Tenn. R. Civ. P 58 contains the following prerequisites for the entry of a judgment
to be effective:

             Entry of a judgment or an order of final disposition is
             effective when a judgment containing one of the following is
             marked on the face by the clerk as filed for entry:

             (1) the signatures of the judge and all parties or counsel, or

             (2) the signatures of the judge and one party or counsel with a
             certificate of counsel that a copy of the proposed order has
             been served on all other parties or counsel, or

             (3) the signature of the judge and a certificate of the clerk that
             a copy has been served on all other parties or counsel.

             . . . When requested by counsel or pro se parties, the clerk
             shall forthwith mail or deliver a copy of the entered judgment
             to all parties or counsel. If the clerk fails to forthwith mail or
             deliver, a party prejudiced by that failure may seek relief
             under Rule 60.

Rule 5.02(1) provides, as pertinent to this action, that “[s]ervice upon the attorney or
upon a party shall be made by delivering to him or her a copy of the document to be
served, or by mailing it to such person’s last known address.”

      At the end of the hearing, the trial court found and held in pertinent part as
follows:
            There was evidence in the case that the property owners’
            daughter requested that this Court’s Clerk use the address that
            is the same address from the beginning of the case on the Tax
            Sale Complaint. [T]he Clerk was requested to use the . . .
            property owners’ post office box address, and the reasoning
                                            -5-
             was that they were having trouble getting their mail and they
             were having trouble with vandalism of the mailbox at the
             property address.

             There was also evidence that the daughter requested the tax
             purchaser’s attorney to use the post office address, and there
             was no rebuttal of that testimony. The Tax Sale Complaint in
             this case, as I previously mentioned, uses the post office
             address, and the tax statements that the County sent out for
             the taxes use the post office address. . . .

             We don’t know whether the Clerk in the case used the
             property address or the post office address, except we do have
             the evidence it was not received. The tax purchaser’s
             attorney mailed the Order setting the excess amount to . . . the
             property address, not to the post office address. The evidence
             is unrebutted that the Order was not received, that no copy of
             the Order was received.

             This Court is of the opinion that the Order of January 11,
             2016, was not effectively served under [Rule] 5 and not
             effectively entered under [Rule] 58. The Court is also of the
             opinion that, under Rule 60, that . . . the property owners
             would be entitled to relief from the Order and to have the
             Order set aside based on excusable neglect, that the Order
             was void, and/or for other reasons justifying release from the
             operation of the Order, being that the Order was simply not
             received by the property owners and was not sent by the
             purchaser’s attorney to the address requested and was sent to
             an address where the property owners, through their daughter,
             had given notice to the tax purchaser’s attorney and to the
             Clerk of the Court that the Order might not be received, to
             send it to the post office address.

The evidence in the record does not preponderate against the trial court’s findings that a
copy of the order was not sent to the landowners’ last known address, and that they did
not receive a copy of the order until after their deadline had passed. Thus, the attempted
service did not comport with Rule 5.02 or Rule 58.

      Rule 60.02 provides a party relief “from a final judgment, order or proceeding” for
reasons including “mistake, inadvertence, surprise or excusable neglect” and when “the
                                           -6-
judgment is void.” The Supreme Court has stated that “[i]n reviewing a trial court’s
decision to grant or deny relief pursuant to Rule 60.02, we give great deference to the
trial court.” Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003). Consequently, an
appellate court “will not set aside the trial court’s ruling unless the trial court has abused
its discretion.” Id.; Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). In
situations where a party has been denied notice of a critical proceeding, resulting in a
judgment against the party without having had an opportunity to be heard on the matter,
Tennessee appellate courts have frequently granted Rule 60.02 relief. See, e.g., Henry,
104 S.W.3d at 480 (“When a party has no notice of a critical step in a court proceeding,
the circumstances may make out a case of excusable neglect.”), citing Tenn. Dep’t of
Human Servs. v. Barbee, 689 S.W.2d 863, 868 (Tenn. 1985) and Jerkins v. McKinney,
533 S.W.2d 275, 281 (Tenn. 1976); Obi v. Obi, No. M2010-00485-COA-R3-CV, 2011
WL 2150733, at *6 (Tenn. Ct. App., filed June 1, 2011), and cases cited therein. In such
cases, which have frequently involved a default judgment, we have noted the potential
due process implications in allowing such a judgment to stand. Obi, 2011 WL 2150733,
at *6. The Supreme Court has recently observed that “[d]ue process protections clearly
apply when the State seeks to sell a taxpayer’s real property in satisfaction of a tax
obligation.” Mortgage Elec. Reg. Sys., Inc. v. Ditto, 488 S.W.3d 265, 280 (Tenn. 2015).

        At the hearing on tax sale purchaser’s motion to deny the redemption, the trial
court asked his attorney whether Rule 60 was applicable, as argued by landowners, and
counsel replied, “I think Rule 60 always applies if the Court finds that there is a mistake
or inadvertence not the fault of the property owner.” To the extent that Rule 60 is
applicable under these circumstances, we find no abuse of discretion in the trial court’s
decision. It is not clear that the January 11, 2016, order that the court voided and set
aside was a final judgment. “A final judgment is one that resolves all the issues in the
case, leaving nothing else for the trial court to do.” In re Estate of Henderson, 121
S.W.3d 643, 645 (Tenn. 2003), quoting State ex rel. McAllister v. Goode, 968 S.W.2d
834, 840 (Tenn. Ct. App. 1997) (internal quotation marks omitted). “In contrast, an order
that adjudicates fewer than all of the claims, rights, or liabilities of all the parties is not
final, but is subject to revision any time before the entry of a final judgment.” Id., citing
Tenn. R. App. P. 3(a). In this case, the final outcome of the action was contingent upon
the landowners’ timely compliance with the trial court’s order to pay additional funds.
The issue of whether the redemption would be successful remained unresolved after the
entry of the January 11 order. Moreover, the trial court heard, considered, and resolved
tax sale purchaser’s motion to deny the redemption, after more than 30 days had elapsed
from the January 11 order. We have observed several times that “under the rationale for
Rule 58, a judgment which is not actually served on a party within a reasonable time after
it has been filed, even though it contains a certificate of service, is not a final appealable
judgment.” Masters ex rel Masters v. Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App.
1992); accord Grantham v. Tenn. State Bd. of Equalization, 794 S.W.2d 751, 752
                                             -7-
(Tenn. Ct. App. 1990); Citizens Bank of Blount Cnty. v. Myers, No. 03A01-9111-CH-
422, 1992 WL 60883, at *3 (Tenn. Ct. App., filed Mar. 30, 1992). The Supreme Court
has held that “[t]he failure to adhere to the requirements set forth in Rule 58 prevents a
court’s order or judgment from becoming effective.” Blackburn v. Blackburn, 270
S.W.3d 42, 49 (Tenn. 2008).

       Consequently, we believe that the trial court correctly acted, and we affirm its
decision,2 under the well-established principle that “Courts have always had the authority
to modify, alter, amend or revoke judgments and decrees before they become final.”
Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976); see also Newport Housing
Auth. v. Hartsell, 533 S.W.2d 317, 320 (Tenn. Ct. App. 1975); In re Taylor B.W., 397
S.W.3d 105, 112 (Tenn. 2013); Acosta v. Acosta, 499 S.W.3d 785, 789 (Tenn. Ct. App.
2016). The trial court acted within its authority and discretion in deciding to set aside as
void its order entered January 11, 2016, on grounds that it “was not effectively served
under Rule 5 of the Tennessee Rules of Civil Procedure and not effectively entered under
Rule 58 of the Tennessee Rules of Civil Procedure.”

                                               V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Jon Johnson. The case is remanded for enforcement of the trial court’s
judgment and for collection of costs assessed below.


                                             _______________________________
                                             CHARLES D. SUSANO, JR., JUDGE




       2
         The trial court was advised by both sides of this litigation that Rule 60 applies to this
case. That rule is implicated when one is attempting to challenge a final order. It is not at all
clear that there was a final order when the tax sale purchaser filed his motion to deny
redemption. Whether that rule applies or not, it is clear, under Rules 58 and 5 of the Rules of
Civil Procedure, that the trial court reached the correct result in this case.
                                               -8-
