                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                            Assigned on Briefs June 1, 2010

  TENNESSEE PROTECTION AGENCY, INC. v. JORDON D. MATHIES

                 Appeal from the Circuit Court for Davidson County
                   No. 09C-0747     Joseph P. Binkley, Jr., Judge


                 No. M2009-01775-COA-R3-CV - Filed July 23, 2010


Party A obtained a default judgment in general sessions court against Party B. The general
sessions court subsequently granted Party B’s motion to set aside the default judgment. Party
A appealed to circuit court. The circuit court reversed the general sessions court’s decision
to set aside the default judgment. Party B appeals to this court. We affirm the decision of
the circuit court.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Terry R. Clayton, Nashville, Tennessee, for the appellant, Jordan D. Mathies.

Patrick Johnson, Nashville, Tennessee, for the appellee, Tennessee Protection Agency, Inc.

                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       Tennessee Protection Agency, Inc. (“TPA”) filed a civil warrant in general sessions
court on October 2, 2008, against Jordan D. Mathies for legal malpractice. The warrant,
which was served on October 7, 2008, stated that the case was set to be heard on November
12, 2008.
        Mathies contacted the general sessions clerk’s office about continuing the case.1 He
sent a fax to the clerk’s office requesting that the hearing be reset for January 21, 2009, and
it was his understanding that the hearing was rescheduled for that date. TPA appeared in
court on the original hearing date of November 12, 2008, and learned that Mathies had
requested a continuance. TPA objected to the requested two-month delay in the hearing date
but agreed to have the case continued until December 3, 2008. TPA’s attorney sent a letter
to Mathies notifying him of the new hearing date. Although the letter was addressed to
Mathies at the correct address, he denied ever receiving it.

        When the case came on to be heard on December 3, 2008, Mathies did not appear, and
the general sessions court entered a default judgment in favor of TPA for $11,250.00.
Mathies appeared in court on January 21, 2009, and learned about the default judgment
entered against him. On January 27, 2009, Mathies filed a motion for relief from the
judgment pursuant to Tenn. R. Civ. P. 60.02. After a hearing on February 20, 2009, the
general sessions court set aside the default judgment. TPA and Mathies each prepared an
order, and the judge signed both orders. One order was entered on February 23, 2009, and
the other on February 27, 2009. On February 27, 2009, TPA filed a notice of appeal to
circuit court.

       The case was heard in circuit court on July 21, 2009. Based on Tenn. Code Ann. §
16-15-727, the court held that Mathies had failed to timely file his Rule 60.02 motion, and
therefore, the general sessions court did not have jurisdiction to rule on the motion. The
court’s order contains the following analysis:

                General Sessions Courts are courts of limited jurisdiction and that
        jurisdiction is limited to and controlled by statutes. When a general sessions
        court renders judgment in a case and adjourns, the court has no further power
        to set aside that judgment except the authority which the statutes may give.
        Tennessee Code Annotated § 16-15-727, titled “Correction of judgment,”
        allows a party to file a Rule 60.02 motion in the General Sessions Court to set
        aside a default judgment on the grounds set forth in the statute. However, the
        statute goes on to state that the “Rule 60.02 [motion] shall be filed within ten
        (10) days of the date of judgment.” (Emphasis added). The use of the “shall”
        makes it mandatory that the party filing the motion must file the motion within
        ten (10) days of the entry of the judgment that it wishes to set aside.




        1
            Facts concerning the parties’ actions are taken from testimony at the circuit court hearing in July
2009.

                                                       -2-
               In the present case, a default judgment was entered against the
       Defendant on December 3, 2008. The Defendant however did not file his Rule
       60.02 motion to set aside the default judgment until January 27, 2009, beyond
       the ten (10) day limited required by T.C.A. § 16-15-727 to file such a motion.
       Accordingly, at the time that the Defendant filed his untimely motion, the
       General Sessions Court had already lost jurisdiction to rule on the matter.
       Accordingly, the subsequent order of the General Sessions Court setting aside
       the default judgment was without authority and was therefore null and void.

The circuit court vacated the general sessions orders setting aside the default judgment and
reinstated the default judgment.

                                    S TANDARD OF R EVIEW

        We review the trial court’s findings of fact de novo with a presumption of correctness
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We review
questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                                           A NALYSIS

        Mathies raises a number of issues on appeal, but the main issue presented is whether
the circuit court erred as a matter of law in reversing the general sessions court order setting
aside the default judgment.

        Unlike circuit and chancery courts, general sessions courts are courts of limited
jurisdiction. Our Supreme Court has described the nature of general sessions jurisdiction as
follows:

       [The jurisdiction of general sessions courts] is limited to the rendition of the
       judgment, the granting of an appeal, the stay and issuance of the execution,
       and the issuing of writs of Scire facias where proper. The theory of their
       jurisdiction is that it extends only to the limits defined by statute law, and that
       the giving to them [of] jurisdiction of a subject does not carry with it all those
       general powers of making that jurisdiction effectual, or of preventing its
       working injustice, which belongs to courts of general jurisdiction. When a
       justice or general sessions court renders judgment in a case and adjourns, the
       court is at an end, and the court has no further power over it except what the
       statutes give. The court cannot after that day grant a new trial, or in any way
       prevent the consequences of its acts, however erroneous may be. But the court

                                               -3-
        may correct merely clerical errors in its judgments upon the application of a
        party and proper notice to the other party.

Travelers Indem. Co. v. Callis, 481 S.W.2d 384, 385 (Tenn. 1972).

        Following this reasoning, our courts held that a general sessions court lacked
jurisdiction to set aside a judgment. See Richardson v. Methodist Healthcare Memphis, No.
W2004-00773-COA-R9-CV, 2005 WL 1541868, at *3-4 (Tenn. Ct. App. June 30, 2005);
Caldwell v. Wood, No. W2003-00303-COA-R3-CV, 2004 WL 370299, at * 3 (Tenn. Ct.
App. Feb. 27, 2004); see also Jackson Energy Auth. v. Diamond, 181 S.W.3d 735, 739-40
(Tenn. Ct. App. 2005) (general sessions court had no jurisdiction to consider petition to
rehear, and petition did not toll deadline to appeal). In 2007, however, the legislature enacted
Tenn. Code Ann. § 16-15-727(b), authorizing general sessions courts to rule on motions for
relief from a judgment pursuant to Tenn. R. Civ. P. 60.02:

        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.2 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.

Tenn. Code Ann. § 16-15-727(b) (footnote added).

      Mathies filed his motion for Rule 60.02 relief from the default judgment more than
ten days after the judgment. In granting Mathies’s motion for relief from the default
judgment, the general sessions court reasoned that “the ten (10) day period afforded to a
Defendant under T.C.A. § 16-15-727 within which to file a Rule 60 Motion to Set Aside a
Default judgment does not begin to run until such time that the Defendant has notice of the



        2
        A party aggrieved by a general sessions court judgment may appeal to circuit court within ten days
of judgment pursuant to Tenn. Code Ann. § 27-5-108. We note that, in a proper case, a circuit court may
review a general sessions court judgment under a writ of certiorari. See Stechebar v. Deere & Co., No.
E2009-01514-COA-R3-CV, 2010 WL 2593622, at *3-4 (Tenn. Ct. App. June 29, 2010).

                                                   -4-
entry of a default judgment against him as required by T.R.C.P. 58.”3 For the reasons
discussed below, we cannot agree with this analysis.

        General sessions courts have only those powers conferred upon them by statute.
Travelers, 481 S.W.2d at 385. Tenn. Code Ann. § 16-15-727(b) specifically provides that
a Rule 60.02 motion in general sessions court must be filed within ten days of the judgment
in order to toll the time for appeal. This court has previously stated that the ten-day deadline
to appeal to circuit court is jurisdictional. Cagle v. Cass, No. W2001-00760-COA-R3-CV,
2001 WL 792644, at *3 (Tenn. Ct. App. July 6, 2001). Thus, if a party fails to file its appeal
within ten days of the general sessions court judgment, the circuit court does not obtain
jurisdiction over the appeal. Discover Bank v. McCullough, No. M2006-01272-COA-R3-
CV, 2008 WL 245976, at *5 (Tenn. Ct. App. Jan. 29, 2008). This court has dismissed
untimely appeals from general sessions courts in cases in which the defendant was served
with the summons but asserted a lack of notice of the case being set for trial or a lack of
notice of the default judgment. Hausler v. Discounts R Us, Inc., No. M2002-01465-COA-
R3-CV, 2003 WL 1092771, at *1 (Tenn. Ct. App. Mar. 13, 2003); Cagle, 2001 WL 792644,
at *1.

      In R & F Enterprises, Inc. v. Penny, No. E2009-00007-COA-R3-CV, 2010 WL
624048, at *2 (Tenn. Ct. App. Feb. 22, 2010), this court rejected the appealing defendant’s
argument that her failure to file her motion to set aside a default judgment within ten days
was excusable because she did not receive notice of the hearing:

        [D]efendant had notice that the lawsuit was pending, had appeared for one
        hearing, and had sought a continuance to pursue settlement, and then failed to
        appear for the later hearing after sending an offer of settlement. Defendant
        obviously knew of the July 28 hearing date, and did not refute knowledge of
        same, and cannot now claim a lack of notice.

        Assuming arguendo defendant’s argument has merit, which we do not
        concede, the General Sessions Court was without authority to set aside the
        Judgment as found by the Trial Court, because the Motion for Release was not
        filed within the statutory period. Tenn. Code Ann. § 16-15-727.

The court affirmed the judgment of the trial court “on the grounds that the Sessions Court
Judge did not have jurisdiction to set aside the original default judgment.” Id. at *1. We find
the same analysis controlling here. Mathies received notice of the lawsuit and the initial


        3
         The Tennessee Rules of Civil Procedure generally do no apply to general sessions courts. See Tenn.
R. Civ. P. 1.

                                                   -5-
hearing date.4 When he failed to file a motion to set aside the default judgment within ten
days, the general sessions court lost jurisdiction to set aside its judgment.

       Because we agree with the circuit court’s conclusion that the general sessions court
lacked jurisdiction to set aside the default judgment, the remaining issues raised by Mathies
are pretermitted.

                                               C ONCLUSION

       The judgment of the circuit court is affirmed. Costs of appeal are assessed against the
appellant, Mathies, and execution may issue if necessary.


                                                            _________________________________
                                                            ANDY D. BENNETT, JUDGE




        4
         We must disagree with Mathies’s assertion that his efforts to continue the initial hearing date by
contacting the clerk’s office were in compliance with the local practice. Rule 5.01 of the Civil Rules of
Practice for the General Sessions Court for the Twentieth District provides:

        Cases shall be tried on the date they are set on the Court’s docket unless, for good cause
        shown or upon agreement of the parties, the Court resets case for trial at a later date or
        continues case indefinitely. In civil actions the Court may liberally grant a continuance on
        the first setting of a case or on the first setting after an indefinite continuance.

As Mathies points out in his brief, this rule expresses the general sessions court’s liberal continuance policy.
It does not, however, excuse a party from obtaining the permission of the court or the agreement of the
opposing party. In this case, Mathies obtained neither. Although the clerk may, upon the request of an
attorney or party, move a case on the docket, it is the responsibility of the attorney or party to obtain the
permission of the court or of the opposing party.

                                                      -6-
