                                                                                          10/23/2019
              IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 March 7, 2019 Session

   CORNERSTONE FINANCIAL CREDIT UNION v. JOSHUA MUNDY

                 Appeal from the Circuit Court for Davidson County
                 No. 18C1640        Hamilton V. Gayden, Jr., Judge
                      ___________________________________

                           No. M2018-01624-COA-R3-CV
                       ___________________________________


A credit union initiated this action on December 12, 2007, by filing a civil warrant to
recover an amount alleged to be due on an account. On June 14, 2011, after several
unsuccessful attempts to serve the warrant, a return on service was filed indicating that
the defendant had been served with the warrant; a default judgment in the amount of
$13,717.79 was entered on July 25, 2011. The credit union levied on the defendant’s
bank account on April 25, 2018, following which the defendant moved the general
sessions court to set aside the judgment on the ground that service of the warrant was
defective and the judgment was void; the court granted the motion and set the case for
trial. Before the trial could be held, the credit union appealed to the circuit court, where
the defendant moved for summary judgment to affirm the general sessions court’s order
setting aside the judgment. The circuit court dismissed the action pursuant to Tennessee
Rule of Civil Procedure Rule 12.02(3), holding that service of the warrant was not in
compliance with the applicable statutes. The credit union appeals. Upon our de novo
review, we have determined that the record does not show that the defendant was duly
served with the warrant that led to the default judgment and, as a result, the judgment
entered against him is void. Because of the current proceeding, however, trial on the
merits has not been held. Accordingly, we affirm the holding of the circuit court that the
judgment of the general sessions court is void, modify the judgment of the circuit court to
reinstate the credit union’s cause of action, and remand the case to the circuit court with
instruction to remand it to the general sessions court for trial.


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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Charles Michels, Nashville Tennessee, for the appellant, Cornerstone Financial Credit
Union.

David M. Anthony, Nashville, Tennessee, for the appellee, Joshua Mundy

                                        OPINION

                        I. FACTUAL AND PROCEDURAL HISTORY

       Cornerstone Financial Credit Union initiated this action by filing a civil warrant in
Davidson County General Sessions Court on December 12, 2007, against Joshua Mundy,
seeking to recover the $10,752.10 balance due on an account plus interest, attorney fees,
and costs. The warrant, bearing a service address of 2310 Siefried Street, Nashville, was
returned unserved on January 3, 2008, signed by a “C. Prater” with the notation “Joshua
Mundy is not to be found in my county, other, not at address listed.” A second warrant,
issued on July 21, 2008, and listing a service address of Post Office Box 280471,
Nashville, was returned on July 29. A third warrant, issued on June 16, 2009, bearing a
service address of 1615 Underwood Street, Nashville, was returned June 22; both were
signed as unserved by the same server. A fourth warrant, issued on June 8, 2011, for
service at 1615 Underwood Street, Nashville, was returned signed by “J. Smith” on June
14, with the notation “served Joshua Mundy”; the warrant states that a hearing was set for
July 25. On that day, a default judgment was entered against Mr. Mundy in the amount
of $13,717.79 (“the July 25 Judgment”).

        Nearly seven years later, on April 25, 2018, Cornerstone levied upon Mr. Mundy’s
account at Pinnacle National Bank, seeking $20,900.49 and capturing $17,481.12. On
May 21, Mr. Mundy moved the general sessions court to set aside the default judgment
pursuant to Tennessee Rule of Civil Procedure 60.02(5) and to quash the levy, arguing
that service of the warrant was defective and, accordingly, the court did not have personal
jurisdiction over Mr. Mundy when it entered the judgment, thereby rendering the
judgment void; he supported the motion with his affidavit. Cornerstone responded, and
the motion was heard on May 31. The court entered an order on June 22, 2018, setting
aside the July 25 Judgment and setting the case for a trial on August 1.

       Cornerstone appealed the general sessions court’s ruling to Davidson County
Circuit Court on June 25, 2018. Mr. Mundy moved for summary judgment, and filed a
statement of undisputed material facts, supported by the same affidavit he had filed in
general sessions court, and the affidavit of his counsel, David Anthony. Mr. Mundy
argued that the court did not have personal jurisdiction over him and accordingly, the
case should be either dismissed or remanded to the general sessions court. In turn,
Cornerstone responded to the motion for summary judgment, moved the circuit court to
dismiss the Motion to Set Aside that Mr. Mundy had filed in the general sessions court,


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arguing that Mr. Mundy should have filed a common law or statutory writ of certiorari
instead, and to set the case for trial.

       The trial court heard all motions on August 17 and entered an order on August 24,
dismissing the case pursuant to Tennessee Rule of Civil Procedure 12.02, holding that the
return of process on the default judgment warrant “does not state the process server’s
address and does not describe the manner of service” and, consequently, that the service
did not comply with Tennessee Code Annotated sections 16-15-901(b)1 and 16-15-
902(a).2 Cornerstone appeals, stating two issues:

         1. Whether the Trial Court erred when it held that the general sessions court
         lacked personal jurisdiction over Appellee at the time the general sessions
         court granted Appellant’s July 25, 2011 judgment against Appellee,
         rendering the 2011 judgment void because the return of process, personally
         served upon Appellee, does not include: a) the address of the process
         server, the Davidson County Sheriff’s Office; and b) a description of the
         manner of service, instead stating, “[c]ame to hand same day issued and
         executed as commanded on: served Joshua Mundy.”

         2. Whether the Trial Court erred when it failed to grant Appellant’s Motion
         to Dismiss Appellee’s Motion to Set Aside Judgment on the ground that
         such action should have been brought by statutory or common law writ of
         certiorari.

                                               II. ANALYSIS

       As noted in Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 643 (Tenn. 2009)),
questions regarding the court’s exercise of personal jurisdiction should be raised and

1
    Tennessee Code Annotated section 16-15-901(b) states:

         A civil warrant, attachment or any other leading process used to initiate an action in
         general sessions court and subpoenas or summons may be served by any person
         designated by the party or the party’s attorney, if represented by counsel, who is not a
         party to the action and is not less than eighteen (18) years of age. Service of other process
         and orders of the courts of this state shall be by sheriffs, constables or as provided by law.
         The process server must be identified by name and address on the return.
2
  At the time this case was initiated, Tennessee Code Annotated section 16-15-902(a) stated, “Any person
serving the process from the general sessions court shall promptly and within the time during which the
person is served must respond, make proof thereof to the court and shall identify the person served and
shall describe the manner of service.” At some point, which is not clear from the either the bound version
of the statute or the version available on Westlaw, the statute was amended to replace the word “thereof”
with the words “of service.” The difference in the wording of the statute is not pertinent to our resolution
of this appeal.
                                                       3
decided pursuant to Tennessee Rule of Civil Procedure 12.02(2), notwithstanding the fact
that matters outside the pleadings may be considered. “The plaintiff bears the ultimate
burden of demonstrating that the trial court may properly exercise personal jurisdiction
over a defendant.” Id. (citing Chenault v. Walker, 36 S.W.3d 45, 56 (Tenn. 2001); Davis
Kidd Booksellers, Inc. v. Day–Impex, Ltd., 832 S.W.2d 572, 577 (Tenn. Ct. App. 1992).
A defendant who takes issue with personal jurisdiction may file a Rule 12.02(2) motion,
which may be supported by affidavit or other evidentiary materials. Gordon, 300 S.W.3d
at 643-44. If the defendant supports the motion with affidavits, the plaintiff “must
establish its prima facie showing of personal jurisdiction over the defendant by filing its
own affidavits or other written evidence.” Id. at 644 (citing Chenault, 36 S.W.3d at 56
and Mfrs. Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 854-55 (Tenn. Ct. App.
2000)). “A decision regarding the exercise of personal jurisdiction over a defendant
involves a question of law . . . [and] the appellate courts will review a trial court’s
decision to grant or deny a Tenn. R. Civ. P. 12.02(2) motion de novo with no
presumption of correctness….” Id. at 645.

        In our analysis, we are also guided by the Tennessee Supreme Court’s discussion
of jurisdiction and judgments in Turner v. Turner:

             A. Jurisdiction Generally

      The lawful authority of a court to adjudicate a controversy brought before it
      depends upon that court having jurisdiction of the subject matter and
      jurisdiction of the parties. . . . Personal jurisdiction refers to the power of a
      court over the parties to the controversy to render a binding judgment.

      . . . [P]ersonal jurisdiction recognizes and protects an individual liberty
      interest that flows from the Due Process Clause and requires that
      maintenance of the suit “not offend ‘traditional notions of fair play and
      substantial justice.’” “It represents a restriction on judicial power not as a
      matter of sovereignty, but as a matter of individual liberty.” Because the
      requirement of personal jurisdiction functions to protect an individual right,
      it can, like other such rights, be waived.

             B. Void Judgments

              “[A] void judgment is one so affected by a fundamental infirmity
      that the infirmity may be raised even after the judgment becomes final. The
      list of such infirmities is exceedingly short; otherwise, [the] exception to
      finality would swallow the rule.” A judgment rendered by a court lacking
      either personal or subject matter jurisdiction is void. Nevertheless, a
      judgment of a court of general jurisdiction is presumed to be valid and will
      be held void only when “its invalidity is disclosed by the face of that

                                             4
judgment, or in the record of the case in which that judgment was
rendered.”

      A [judgment] is absolutely void if it appears on the face of the
      record itself either that the Court had no general jurisdiction
      of the subject matter, or that the [judgment] is wholly outside
      of the pleadings, and no consent thereto appears. A
      [judgment] is void as to any person shown by the record itself
      not to have been before the Court in person, or by
      representation. A [judgment] not prima facie void is valid
      and binding....

      All [judgments] not thus appearing on their face to be void
      are absolutely proof against collateral attack, and no parol
      proof is admissible on such an attack to show any defect in
      the proceedings, or in the [judgment].

Gentry [v. Gentry], 924 S.W.2d [678] at 680 (Tenn. 1996) (quoting William
H. Inman, Gibson’s Suits in Chancery § 228 at 219–20 (7th ed. 1988)). If
the defect allegedly rendering the challenged judgment void is not apparent
from the face of the judgment or the record of the proceeding from which
the challenged judgment emanated and must instead be established by
additional proof, the judgment is merely voidable, not void.

      C. Obtaining Personal Jurisdiction

        A court obtains personal jurisdiction over a party defendant by
service of process. Ramsay v. Custer, 387 S.W.3d 566, 568 (Tenn. Ct. App.
2012); see also Johnson v. McKinney, 32 Tenn. App. 484, 222 S.W.2d 879,
883 ([Tenn. Ct. App.] 1948) (“The general rule is that notice by service of
process or in some other manner provided by law is essential to give the
court jurisdiction of the parties; and judgment rendered without such
jurisdiction is void and subject to attack from any angle.” (emphasis
added)). “The record must establish that the plaintiff complied with the
requisite procedural rules, and the fact that the defendant had actual
knowledge of attempted service does not render the service effectual if the
plaintiff did not serve process in accordance with the rules.” Ramsay, 387
S.W.3d at 568; see also Overby v. Overby, 224 Tenn. 523, 457 S.W.2d 851,
852 ([Tenn.] 1970) (“That a judgment [i]n personam against a defendant
who is not before the court either by service of process or by entry of
appearance is void there can be no question. It is well settled that a
judgment rendered against a defendant in any kind of a case, when process
has never been served on him ... in the way provided by law ...; and where

                                     5
      there has been no voluntary appearance of the defendant, is clearly void.”
      (emphasis added) (citation and internal quotation marks omitted)). A court
      “without personal jurisdiction of the defendant” is wholly “without power
      to proceed to an adjudication” binding on that defendant, regardless of the
      specific reason such jurisdiction is lacking.

473 S.W.3d 257, 269–71 (Tenn. 2015) (some internal citations omitted). Bearing these
standards in mind, we turn to the facts established in the record.

       In support of the motion, Mr. Mundy filed the affidavit he had filed in general
sessions court with the motion to set aside the default judgment, a Tennessee Rule of
Civil Procedure 56.03 statement of undisputed material facts, and his counsel’s affidavit.
Cornerstone filed a response to Mr. Mundy’s Rule 56.03 statement. In his Rule 56.03
statement, Mr. Mundy set forth the history of the number of warrants issued, the dates of
issuance, and the results of attempted service. The only statements Cornerstone did not
admit were the following:

            7. The return of process on the Default Judgment fails to provide the
      process server’s address.

             RESPONSE: Disputed to the extent that this fact is immaterial, at
             least in part because the only sheriff authorized to serve process in
             Davidson County is an officer of the Davidson County’s Sherriff
             Office, whose address is public record.

            8. Defendant denies service of the last Alias Warrant upon which the
      Default Judgment was based.

             RESPONSE: Disputed as a matter of law whether Defendant’s
             affidavit that he was not served can stand to contradict the Sheriff’s
             statement that Defendant was served. The Sheriff’s statement that he
             served Defendant is not nullified solely because the Sheriff did not
             designate at which of two addresses he served Defendant, or include
             the Sheriff’s address.

             9. The first notice that Defendant received that the Default Judgment
      was entered was when Pinnacle Bank sent to Defendant’s residence at 220
      Solitude Circle, Goodlettsville, Tennessee 37072, the notice of the bank
      levy dated May 2, 2018, and that Pinnacle Bank was taking $17,481.12
      from Defendant’s bank accounts at Pinnacle.

             RESPONSE: Denied. See Exhibit 1, attached hereto, which
             establishes that Defendant corresponded with Plaintiff’s

                                            6
                representative in regards to this judgment at least on May 31, 2012,
                June 25, 2014, February 9, 2016, December 20, 2016, and
                September 21, 2017.[3]

The pertinent portion of Mr. Mundy’s affidavit states:

        5. At no time was I served with any of this process, nor did I receive notice
        that these service attempts were occurring.

        6. Plaintiff allegedly obtained service on me on June 14, 2011, only six
        days after issuing its third Alias Summons on June 8, 2011 (the “Served
        Warrant”), and over three and a half years after the Filing Date.

        7. Based on the Served Warrant, Plaintiff received a Default Judgment
        against me on July 25, 2011 (the “Default Judgment”).

        8. The Default Judgment was based on a service of process that failed to
        state the location where I was served and failed to provide any other
        information related to the alleged service, including the address of the
        process server. The address in Nashville listed on the Served Warrant was a
        rental property that I used to own.

        9. I deny service of the Alias Warrant and, specifically, deny receiving the
        Alias Warrant on June 14, 2011.

        10. I did not receive any other notice of this lawsuit being filed, of the Civil
        Warrant, or of the prior Alias Summonses.

        11. I did not receive any letters, correspondence, or demands between the
        alleged service on June 14, 2011, the entry of the Default Judgment, or the
        various executions in this matter.



3
  Exhibit 1 to Cornerstone’s response contains an unverified “Statement of Account” from Cornerstone’s
law firm; an unverified “Pleadings Report” from the general sessions court listing the history of warrants,
returns, garnishments, etc., issued in the case from December 12, 2007 to May 21, 2018; an unverified
page from CaseLink giving the history of aliases issued; and an eight page unverified and untitled
document, which appears to be either Cornerstone’s or the law firm’s record of efforts made to collect the
account. The memorandum filed with Cornerstone’s response to the Rule 56.03 statement does not refer
to the exhibit, and there is no affidavit or other verification establishing a foundation that would enable us
to consider the documents or the veracity of any matter contained therein. See Tenn. R. Civ. P. 56.06. In
any event, the matters in the exhibit referenced by Cornerstone in its response are all dated after the date
of entry of the July 25 Judgment and, consequently, have no bearing on the question of service of the
warrant issued June 8, 2011.
                                                      7
       12. The first notice that I received that the Default Judgment was entered
       was when Pinnacle Bank sent to my residence at 220 Solitude Circle,
       Goodlettsville, Tennessee 37072, the notice of the bank levy dated May 2,
       2018, and that Pinnacle Bank was taking $17,481.12 from my bank
       accounts at Pinnacle.

The statements in Mr. Mundy’s affidavit attest that he was not served with the warrant.

      We agree with the trial court that service of the warrant did not comply with
Tennessee Code Annotated sections 16-15-901(b) and 16-15-902(a) which state:

               A civil warrant, attachment or any other leading process used to
       initiate an action in general sessions court and subpoenas or summons may
       be served by any person designated by the party or the party’s attorney, if
       represented by counsel, who is not a party to the action and is not less than
       eighteen (18) years of age. Service of other process and orders of the courts
       of this state shall be by sheriffs, constables or as provided by law. The
       process server must be identified by name and address on the return.

Tennessee Code Annotated section 16-15-901(b).

              Any person serving the process from the general sessions court shall
       promptly and within the time during which the person is served must
       respond, make proof of service to the court and shall identify the person
       served and shall describe the manner of service.

Tennessee Code Annotated section 16-15-902(a) (2009). Read together, the statutes
allow the warrant to be served by someone other than the sheriff and require that the
server be identified by name and address on the warrant, along with the manner of
service.

       The return in this case states:

       Came to hand same day issued and executed as commanded on:
             served Joshua Mundy

       Served                6-14                . 2011

             J Smith                          John Smith
       _____________________________________________________
                                             Sheriff (Constable)

(Items in italics are handwritten; the “John Smith” in regular print appears to be a stamp).

                                             8
        Contrary to Cornerstone’s argument, the return of service on the warrant does not
comply with the above statutes in that it does not describe the manner of service and does
not identify or give an address for John Smith.4 Cornerstone did not file an affidavit of
the person who purportedly served the warrant or any other evidence from which to
satisfy its burden of establishing that the court had personal jurisdiction over Mr. Mundy
through valid service of process. The statements in the affidavit are undisputed;
consequently, the judgment entered in general sessions court was void. Turner, 473
S.W.3d at 271; Ramsay v. Custer, 387 S.W.3d at 568; Johnson v. McKinney, 222 S.W.2d
at 883.

      Relief from a void judgment is available pursuant to Tennessee Rule of Civil
Procedure 60.02(3). Cornerstone argues that Tennessee Code Annotated section 16-15-
727(b)5 bars Mr. Mundy from relief under Rule 60.02. We do not agree. As the advisory
comment to Rule 60.02 notes:

         Rule 60.02 provides that a motion filed pursuant to the Rule “shall be made
         within a reasonable time, and for reasons (1) and (2) not more than one year
         after the judgment, order or proceeding was entered or taken.” The
         Supreme Court, however, has held that “the reasonable time filing
         requirement of Rule 60.02 does not apply to petitions seeking relief from
         void judgments under Rule 60.02(3).” Turner v. Turner, 473 S.W.3d 257,
         260 (Tenn. 2015). But the Court went on to also hold in Turner that relief
         from a void judgment should nevertheless be denied “if the following
         exceptional circumstances exist: ‘(1) [t]he party seeking relief, after having
         had actual notice of the judgment, manifested an intention to treat the
         judgment as valid; and (2) [g]ranting the relief would impair another

4
  We take judicial notice that Daron Hall, not John Smith, is the Sheriff for Davidson County; Sheriff
Hall was sworn into office in 2002 and elected to his fifth term in 2018. See DAVIDSON COUNTY
SHERIFF’S OFFICE, “Meet Sheriff Hall,” https://sheriff.nashville.gov/meet-sheriff-hall/ (last visited
October 14, 2019).
5
    Tennessee Code Annotated section 16-15-727(b) states:

         Tenn. R. Civ. P. 60.02, regarding mistakes, inadvertence, excusable neglect, fraud and
         other similar reasons set out in that rule, shall apply to all courts of general sessions. A
         motion under the general sessions court’s authority under Tenn. R. Civ. P. 60.02 shall be
         filed within ten (10) days of the date of judgment. Once filed, the motion shall toll the
         ten-day period for seeking de novo review in the circuit court until the determination of
         the motion is concluded. Thereafter, an appeal for de novo review in the circuit court
         shall be filed within ten (10) days of the general sessions court’s ruling on the motion to
         relieve a party or the parties’ legal representative from a final judgment, order or
         proceeding in the same manner as provided in Tenn. R. Civ. P. 60.02.


                                                      9
       person’s substantial interest of reliance on the judgment.’ Restatement
       (Second) of Judgments § 66 (1982).” Id.

Inherent in the ruling in Turner is the recognition that actual notice of the judgment is a
prerequisite to the ability to seek relief pursuant to Rule 60.02(3). As noted previously,
the statements in Mr. Mundy’s affidavit are undisputed, and the non-compliant return of
service does not satisfy the statutory burden on Cornerstone to show that proper service
was effected. The record plainly demonstrates that service was not carried out according
to law and that Mr. Mundy was not before the general sessions court, in person or by
representative, such that the court obtained personal jurisdiction over him; the July 25
Judgment was void for lack of personal jurisdiction. Moreover, it would work a
substantial injustice to Mr. Mundy to deny him relief from a judgment entered in 2011 in
an action which had been initiated with a civil warrant filed in 2007 but not executed on
until 2018. Under the facts of this case, section 16-15-727(b) does not prevent the
general sessions court from exercising its authority to determine the validity of the
judgment and to grant Mr. Mundy relief.

                                    III. CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed insofar as it
dismisses the appeal of the order setting aside the July 25 Judgment. The general
sessions court entered an order on June 22, 2018, in which it held that Mr. Mundy “has
now submitted himself to the jurisdiction of the court by appearing in this matter,” and
proceeded to set a trial date; that finding was not appealed to the circuit court and is not
contested on appeal. Because of the current proceeding, however, trial on the merits has
not been held. Accordingly, we modify the judgment to reinstate Cornerstone’s claim on
the account and remand the case to the trial court with instruction to remand it to the
general sessions court for trial.




                                                 RICHARD H. DINKINS, JUDGE




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