                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                            September 14, 2009 Session

   CHRIS YOUSIF, d/b/a QUALITY MOTORS, v. NOTRIAL CLARK and
            THE CIRCUIT COURT OF KNOX COUNTY

                    Direct Appeal from the Circuit Court for Knox County
                        No. 1-565-07     Hon. Dale Workman, Judge

                                  _________________________

                 No. E2008-02626-COA-R3-CV - FILED JANUARY 13, 2010
                               _________________________


                Petitioner filed for a writ of certiorari after his bank accounts were attached for a
judgment which had been entered by the Sessions Court against him. The petition alleged that
petitioner was unaware of the judgment against him and had not been served with service of process
in the Sessions Court. The Trial Court granted the petition and considered a motion to dismiss by
the respondent. The writ was dismissed and petitioner has appealed. On appeal we hold that the
Trial Court erred in dismissing the petition and remand for further proceedings on the writ.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which D. MICHAEL SWINEY ,
J., joined, and JOHN W. MCCLARTY , J., dissented and filed an opinion.


Michael L. Powell, Knoxville, Tennessee, for appellant.

David H. Dupree, Knoxville, Tennessee, for appellee.



                                            OPINION

               Appellant/petitioner, Chris Yousif d/b/a Quality Motors, petitioned the Circuit Court
of Knox County, Tennessee for a writ of certiorari to the General Sessions Court for Knox County,
The petition sets forth the following facts:

               1.      On March 2, 2006 a civil warrant, numbered 13055G, was filed in the
                   General Sessions Court for Knox County by Notrial Clark against Quality
                   Motors and Ali Kahlil in which Ms. Clark alleged: “I brought [sic] a car. He
                   sold it to someone want [sic] give me another one. Told me I have to take a
                   lost [sic].” A copy of the civil warrant was attached to the petition.

           2.      The civil warrant had a service of process return that stated “[s]erved on atty
                   Michael Shipwash for Def.” In fact, Mr. Shipwash did not inform Mr. Yousif
                   of the warrant, though he did inform Mr. Kahlil. The name of Chris Yousif
                   does not appear on the warrant1.

           3.      On June 14, 2006, an alias civil warrant, numbered 13055G, was filed in the
                   general sessions court which added Select Auto as a defendant.2 The service
                   of process return is difficult to read, but appears to stated that atty Ted Lowe
                   was served but does not indicate who he represented. The name of Chris
                   Yousif does not appear on the warrant.

           4.      Quality Motors and Select Auto were located adjacent to each other on
                   Clinton Highway in Knox County. Mr. Kahlil, d/b/a Select Autos, sold the
                   car at issue to Ms. Clark.

           5.      Mr. Yousif knew that a suit had been filed against Mr. Kahlil, but he did not
                   know he had been named as a defendant also. Mr. Kahlil told Mr. Yousif that
                   the matter would be taken care of and it would be dismissed. Based on Mr.
                   Kahlil’s representations, Mr. Yousif did not attend a hearing of the matter on
                   July 10, 2006.

           6.      On July 10, 2006, following the hearing, Mr. Kahlil told Mr. Yousif that the
                   matter had been taken care of. To the contrary, a default judgment had been
                   entered against Mr. Yousif and Mr. Kahlil had been dismissed.

           7.      Mr. Yousif became aware of the default judgment in August 2007 when the
                   clerk of the general sessions court executed the judgment against his bank
                   account in the sum of $3,500.00. The funds were deposited with the clerk of
                   court.

           8.      Mr. Yousif filed a motion to quash the execution. The general sessions court
                   informed him that it was without authority to alter or amend the judgment
                   and the statutory ten days in which to file an appeal had expired.



1
    It is undisputed that Quality Motors is a d/b/a for Chris Yousif.
2
    It is undisputed that Select Auto is a d/b/a for Ali Kahlil.

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               9.      Petitioner asked that a writ of certiorari be issued out of the circuit court to
                       the general sessions court, commanding that the judgment entered against
                       Quality Motors and Mr. Yousif be set aside and that the funds held by the
                       clerk of court by returned to Mr. Yousif.

                The Circuit Court issued a writ of certiorari to the General Sessions Court on
November 29, 2007 and the record was forwarded to the Circuit Court from the Sessions Court. The
record consists of the civil warrant no. 13055G; the alias civil warrant no. 13055G; a letter, dated
May 2006, from attorney Michael S. Shipwash to the clerk of the General Sessions Court which
stated that he had agreed to represent Mr. Kahlil in the lawsuit at issue but withdrew when he
discovered a conflict; two orders, dated October 22, 2007 and November 14, 2007 regarding the
retention of the funds garnished from Mr. Yousif’s account by the clerk of court and Mr. Yousif’s
motion to quash the July 10, 2006 judgment.

              Ms. Clark filed an answer to the petition for a writ, admitting that she dealt with Mr.
Kahlil when she purchased the car but she believed that he had sold the car to her on behalf of Mr.
Yousif and Quality Motors. She attached a contract and a finance agreement in connection with the
sale which were both on Quality Motors’ letterhead.

                Ms. Clark then filed a motion to dismiss the petition for failure to state a claim upon
which relief could be granted. The basis of the motion was that although Mr. Yousif claims that he
had no knowledge that the suit was against him, he admitted in his petition that he knew of the suit
and discussed it with Mr. Kahlil at least twice. Based on this admission of Mr. Yousif, Ms. Clark
maintained that Yousif’s assertion that he had no knowledge of the suit against him was
“disingenuous”. Later, Ms. Clark filed a motion to dismiss for failure to join an indispensable party,
i.e., Mr. Kahlil.

               The matter was heard before the Trial Judge on July 25, 2008, and the Judge entered
an order dismissing Mr. Yousif’s petition. The Trial Court merely stated that it found respondent’s
motion to dismiss well taken and that the motion to dismiss for failure to join a indispensable party
was moot. Subsequently, petitioner filed a motion to alter or amend the order of dismissal and a
motion to amend the petition. The amended petition contained a statement that Mr. Shipwash did
not have authority to accept service for Mr. Yousif, and when the motions were heard, they were
both denied.

               Petitioner, on appeal, raises this issue:

               Did the Circuit Court err when it dismissed the petition for certiorari?

                Generally, evidence is not entertained by the Court when considering a Tenn. R. Civ.
P. 12.02(6) motion to dismiss for failure to state a claim. See Tenn. R. Civ. P. 12.03. However,
Tenn. Code Ann. § 27-8-116 provides the following exception to the rule: “On motion to quash or
dismiss a writ of certiorari granted in lieu of an appeal, issue may be taken and proof heard upon the


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facts alleged in the petition as ground for not appealing, which issue shall thereupon be determined
by the court.” The record does not provide any information regarding whether evidence was
presented to the Circuit Court regarding why the writ was filed instead of an appeal or whether the
Court considered the evidence contained in the record from the General Sessions Court. We will
only consider the allegations set forth set forth in the petition for writ of certiorari when deciding
whether the Trial Court was correct when it dismissed the petition.

                 The Tenn. R. Civ. P. 12.02(6) motion tests only the legal sufficiency of the complaint,
not the strength of a plaintiff's proof. Such a motion admits the truth of all relevant and material
averments contained in the complaint, but asserts that such facts do not constitute a cause of action
as a matter of law. In ruling upon a motion to dismiss, courts should construe the complaint liberally
in favor of the plaintiff, taking all allegations of fact as true. The motion to dismiss should be denied
unless it appears that the plaintiff can prove no set of facts in support of her claim that would entitle
her to relief. In considering an appeal of this nature, we take all allegations of fact in the plaintiff's
complaint as true, and review the lower courts' legal conclusions de novo with no presumption of
correctness. Guth v. Suntrust Bank, Inc., No. E2006-00212-COA-R3-CV, 2007 WL 1135488 at *2
(Tenn. Ct. App. Apr. 17, 2007)(citing Bell v. Icard, 986 S.W.2d 550, 554 (Tenn.1999)(citing Tenn.
R. App. P. 13(d); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997); Pursell v. First
American Nat'l Bank, 937 S.W.2d 838, 840 (Tenn.1996); Cook v. Spinnaker's of Rivergate, Inc., 878
S.W.2d 934, 938 (Tenn.1994)).

                The writ of certiorari derives from Article 6, Section 10 of the Constitution of
Tennessee, but the practice with respect to how and when it may be obtained is set forth in statutory
provisions enacted by the General Assembly. Tragle v. Burdette, 222 Tenn. 531, 438 S.W.2d 736,
737 (1969). The remedy of certiorari is not available as of right, but is only to be granted under
unusual or extraordinary circumstances. Clark v. Metropolitan Gov't of Nashville, 827 S.W.2d 312,
316 (Tenn. App.1991). The writ may also not take the place of an appeal when an express provision
for an appeal is available. Tragle at 737; Sullivan v. Cocke, 167 Tenn. 253, 68 S.W.2d 933 (1934);
although, there are some circumstances such as fraud, contrivance by the opposing party or the court,
or the willful or negligent act of the court clerk that will excuse the failure to pursue an available
appeal and permit review by way of certiorari. See e.g. McMurry v. Milan, 32 Tenn. 176 (1852);
Belcher v. Belcher, 18 Tenn. 121 (1836); Kearney v. Jackson, 9 Tenn. 294 (1830); General Motors
Acceptance Corp. v. Dennis, 675 S.W.2d 489 (Tenn. App. 1984). Neglect on the part of the
petitioner is not a ground to grant the writs of certiorari. General Motors Acceptance Corp. v.
Dennis, 675 S.W.2d 489, 491 (Tenn. App. 1984)(citing Uselton v. Price, supra; Watson v. Wells,
20 Tenn. App. 611, 103 S.W.2d 30 (1937)).

                 Mr. Yousif did not appeal the General Sessions Court’s default judgment against him
to the Circuit Court within ten days of entry of the judgment as provided by T. C. A. § 27-5-
108(a)(1). The petition sets forth the reason he did not timely file an appeal, i.e., he was unaware
that he had been sued or that a default judgment had been entered against him until more than one
year after entry of the judgment. Mr. Yousif claims in his petition that he did not attend the Sessions
Court hearing or otherwise defend himself in this matter because he did not know he had been sued.


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Although the service of process return on the civil warrant shows that an attorney named Michael
Shipwash was served for the defendant, Mr. Yousif asserts that Mr. Shipwash never told him about
the warrant. The petition shows that Mr. Yousif discussed the suit with Mr. Kahlil and he knew Mr.
Kahlil was a defendant but he did not understand that his business, Quality Motors, was also a
defendant. According to Yousif, Mr. Kahlil told him that the matter was would be taken care of and
that the case would be dismissed. Yousif admitted that he knew of the hearing on July 10, 2006, but
he did not attend because he was not aware he was a defendant. After the hearing, Kahlil told Mr.
Yousif “everything had been taken care of”, but Mr. Yousif only became aware of the default
judgment entered against him in August 2007 when the clerk of court garnished his bank account
for the amount of the judgment.

                Respondent, Ms. Clark, argued in her motion to dismiss that petitioner did not assert
sufficient grounds to sustain a writ. She did not argue that Mr. Yousif had been served with process
but, rather, that he was “disingenuous” when he asserted that he had no knowledge of the suit based
on the facts he alleged in the petition. The Circuit Court merely stated that “this Court finds
Respondent’s motion to dismiss to be well taken.” We can only conclude that the Circuit Court
agreed with the respondent’s argument as set forth in the motion to dismiss.

                 However, the argument is fallacious for two reasons. First, Mr. Yousif never stated
that he did not know of the suit, as respondent contends. He represented in his petition that although
he was aware of the suit, he did not know he was named as a defendant. Second, and more
importantly, even if Mr. Kahlil had told Mr. Yousif that they were both defendants, a fact which is
not alleged in the petition, such knowledge would not serve as a substitute for service of process as
required by statute.

                The applicable statutes that set forth the service of process requirements for a suit
filed in general sessions court are as follows:

               Tenn. Code Ann § 16-15-901 (a) Upon filing of civil warrants, writs and other
               papers the clerk of the general sessions court wherein such civil warrants, writs or
               other papers are filed, shall issue the required process, writs or other papers, and
               cause it or them, with necessary copies of the civil warrant, writ or papers, to be
               delivered for service to such person authorized to serve process as may be designated
               by the party filing such civil warrant, writ or other papers or such party's attorney if
               represented by counsel. Such authorized person shall serve the civil warrant, writ or
               other papers, and the return endorsed thereon shall be proof of the time and manner
               of service. A civil warrant, writ or other papers may be issued for service in any
               county against any defendant, or additional defendants.

               T. C. A. § 16-15-902 (a) 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.

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               T. C. A. § 16-15-903 Service shall be made as follows:
               (1) Upon an individual other than an unmarried infant incompetent person, by
               delivering a copy of the warrant, writ or other papers to the individual personally, or
               if the individual evades or attempted to evade service, by leaving copies thereof at
               the individual's dwelling house or usual place of abode with some person of suitable
               age and discretion then residing therein, whose name shall appear on the proof of
               service, or by delivering the copies to an agent authorized by appointment or by law
               to receive service on behalf of the individual served.

                Mr. Kahlil did not claim that Mr. Yousif was properly served, nor did the Circuit
Court conclude that service of process was correctly accomplished. Respondent and the Court seem
to have agreed, that Yousif’s knowledge of the existence of the suit and his knowledge of the hearing
date was a proper substitute for service of process. Cases hold otherwise. This issue was addressed
in Watson v. Garza, No. W2007-02480-COA-R3-CV, 2008 WL 4831300 at * 1 (Tenn. Ct. App.
Nov. 7, 2008). The issue on appeal in Watson involved a motion to dismiss for insufficient service
of process. The summons issued for service on the defendant-appellee was served by the deputy
sheriff on a co-defendant who later delivered the summons to defendant-appellee. The trial court
granted the defendant-appellee's motion to dismiss and the court of appeals affirmed. Watson at *2.
The Court reasoned that because the trial court's jurisdiction of the parties is acquired by service of
process, proper service of process is an essential step in a proceeding. Watson at *2. 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. Watson at *2. Similarly, in In re Estate
of Graham, No. 85-114-11, 1986 WL 3156 (Tenn. App. Mar. 12, 1986) the Court held that notice
by service of process in some manner provided by law is essential to give the trial court personal
jurisdiction over the parties, and without jurisdiction, judgment against a defendant who is not before
the court is void and subject to attack. Graham at *2 (citing Overby v. Overby, 224 Tenn. 523, 525,
457 S.W.2d 851, 852 (1970); Boyd v. Baynham, 24 Tenn. (5 Humph.) 385, 386 (1844); Rooney v.
Callins, 62 Tenn. App. 105, 124, 459 S.W.2d 430, 438 (1970); and Johnson v. McKinney, 32 Tenn.
App. 484, 492, 222 S.W.2d 879, 883 (1949)).


                 Based on the foregoing case law, the Trial Court erred when it dismissed the petition
for writ of certiorari.


               Accordingly, we vacate the Order of Dismissal and remand to the Circuit Court for
further proceedings consistent with this opinion. The cost of the appeal is assessed to Notrial Clark.




                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.



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