                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 17, 2015 Session


     BROOKSIDE HOMEOWNERS ASSOCIATION v. STAN VAUGHT

                 Appeal from the Circuit Court for Rutherford County
                      No. 68909 Mitchell Keith Siskin, Judge

                          ________________________________

    No. M2015-00432-COA-R3-CV- Filed November 13, 2015
                    _________________________________

A party who failed to file a de novo appeal of a general sessions judgment filed the instant
petition for writ of certiorari. The trial court dismissed the writ on the grounds that the
petitioner had a “plain, speedy and adequate remedy” provided by Tenn. Code Ann. § 16-15-
727(b), a de novo appeal. We agree and affirm.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which RICHARD H. DINKINS and
W. NEAL MCBRAYER, JJ., joined.

M. Ben Moore, II and Clifton B. Sobel, Jr., Nashville, Tennessee, for the appellant,
Brookside Homeowners Association.

Mark A. Polk, Murfreesboro, Tennessee, for the appellee, Stan Vaught.

                                          OPINION

                        FACTUAL AND PROCEDURAL BACKGROUND

       Stan Vaught owned property located in a subdivision controlled by Brookside
Homeowners Association (“Brookside”). On May 12, 2014, Brookside filed a civil summons
in general sessions court against Mr. Vaught seeking damages in the amount of $25,000.00
for past due home owners association fees, court courts, interest, late fees, attorney fees, and
other relief. Mr. Vaught was served with the summons. The trial date was continued twice,
once at the request of the plaintiff and once at the request of the defendant.
       On July 23, 2014, Brookside appeared in court for the hearing; Mr. Vaught did not
appear.1 The court granted a default judgment against Mr. Vaught in the amount of
$25,000.00. On August 5, 2014, Brookside filed a garnishment with Mr. Vaught‟s employer,
and the garnishment was served on Mr. Vaught‟s employer on August 11, 2014. On August
15, 2014, Mr. Vaught filed a motion to set aside the default judgment in the general sessions
court. The motion was heard on September 24, 2014, and the court granted Mr. Vaught‟s
motion to set aside the default judgment based upon Mr. Vaught‟s lack of notice regarding
the hearing.

       Brookside filed a petition for writ of certiorari in the circuit court on November 19,
2014 with the sole issue being whether the general sessions court erred in granting Mr.
Vaught‟s motion to set aside the default judgment. Mr. Vaught filed a motion to dismiss the
writ on December 31, 2014 arguing, in part, that Brookside was only seeking to remedy its
failure to appeal within ten days of the general sessions court‟s decision to set aside the
default judgment. Mr. Vaught further contended that the default judgment was not a final
appealable order because it did not dispose of all claims in light of the fact that there
remained outstanding claims against John Phillips, a co-defendant.

      On February 12, 2015, the trial court entered an order dismissing the writ of certiorari
and remanding the case to general sessions court. The court found as follows:

        1.    That the General Sessions Court set aside the July 23, 2014, default
           judgment against Defendant Stan Vaught on September 26, 2014.
        2.    That pursuant to Tenn. Code Ann. § 16-15-727(b), Plaintiff had ten (10)
           days to file a de novo appeal to the Circuit Court of the General Sessions
           Court‟s Order setting aside the default judgment.
        3.    That Plaintiff failed to file an appeal within the ten (10) days as
           outlined by Tenn. Code Ann. § 16-15-727(b).
        4.    That based on Tenn. Code Ann. § 16-15-727(b), Plaintiff had a plain,
           speedy and adequate remedy to Tenn. Code Ann. § 16-15-727(b), and as
           such the Writ of Certiorari was not proper.

(Emphasis added).


        1
         Brookside‟s counsel sent a letter to Mr. Vaught‟s counsel on July 10, 2014 advising him of the new
hearing date of July 23, 2014. Mr. Vaught denies receiving this letter. The letter was also filed with the court
clerk. According to Mr. Vaught‟s affidavit, he made repeated phone calls to Brookside‟s counsel inquiring
about the rescheduled court date; Brookside‟s counsel admitted that he intentionally did not return Mr.
Vaught‟s phone calls. Mr. Vaught reports that he was out of the country at the time of the July 23, 2014
hearing.
                                                       2
        On appeal, Brookside argues that: (1) the general sessions court lacked the authority to
set aside its own judgment after the statutory ten-day period for filing a motion for relief had
run; and (2) the circuit court erred in dismissing Brookside‟s writ of certiorari.

                                     STANDARD OF REVIEW

        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 court‟s decision to issue or dismiss a writ of certiorari is a discretionary one. Heyne
v. Metro. Nashville Bd. of Educ., 380 S.W.3d 715, 730 (Tenn. 2012); Boyce v. Williams, 389
S.W.2d 272, 277 (Tenn. 1965). Thus, our review of this issue is limited to a determination of
whether the trial court abused its discretion in dismissing the petition. See Ancro Fin. Co. v.
Johnson, No. W2000-02709-COA-R3-CV, 2001 WL 1298913, at *2 (Tenn. Ct. App. Oct. 23,
2001).

        A motion to dismiss for failure to state a claim pursuant to Tenn. R. Civ. P. 12.02(6)
challenges the legal sufficiency of the complaint rather than the strength of the plaintiff‟s
proof or evidence. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426
(Tenn. 2011). The motion admits the truth of all averments contained in the complaint but
asserts that such facts do not constitute a cause of action. Id. In considering a motion to
dismiss, a court must liberally construe the complaint, “„presuming all factual allegations to
be true and giving the plaintiff the benefit of all reasonable inferences.‟” Id. (quoting Tigg v.
Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)). The scope of review following the
grant or denial of a motion to dismiss involves a question of law, which we review de novo,
without any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894-
95 (Tenn. 2011).

                                            ANALYSIS

        The writ of certiorari is not available as a matter of right, but it is to be granted only in
“unusual or extraordinary circumstances.” Clark v. Metro. Gov’t of Nashville & Davidson
Cnty., 827 S.W.2d 312, 316-17 (Tenn. Ct. App. 1991). Brookside‟s verified petition for writ
of certiorari relies upon Tenn. Code Ann. § 27-8-101 et seq., a codification of the common
law writ of certiorari. See McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990).
 Tennessee Code Annotated section 27-8-101 provides, in pertinent part:

       The writ of certiorari may be granted whenever authorized by law, and also in
                                             3
        all cases where an inferior tribunal, board, or officer exercising judicial
        functions has exceeded the jurisdiction conferred, or is acting illegally, when,
        in the judgment of the court, there is no other plain, speedy, or adequate
        remedy.

(Emphasis added). The trial court made an express finding that Brookside had a “plain,
speedy and adequate remedy” in this case—namely, a de novo appeal pursuant to Tenn. Code
Ann. § 16-15-727(b) (quoted in full below).

       The writ of certiorari is not to take the place of an appeal when there is an express
provision for an appeal. Tragle v. Burdette, 438 S.W.2d 736, 737 (Tenn. 1969).2 General
sessions courts have only those powers conferred upon them by statute. See Travelers
Indem. Co. v. Callis, 481 S.W.2d 384, 385 (Tenn. 1972). Prior to 2007, general sessions
courts had no power to grant relief from their own judgments except in the case of clerical
mistakes. First Cmty. Fin. Servs. v. Simmons, No. M2010-01597-COA-R3-CV, 2011 WL
2416680, at *2 (Tenn. Ct. App. June 10, 2011). In 2007, 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.[3] 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.

        2
           Tennessee Code Annotated section 27-8-102(3) lists one of the grounds for the writ of certiorari as “a
substitute for appeal.” Pursuant to caselaw, however, this ground is available only if the plaintiff establishes
that the appeal was defeated “1) [b]y the oppressive or erroneous act of the court or justice[;] 2) [b]y the willful
or negligent act of the clerk[;] 3) [b]y the contrivance or procurement of the adverse party[;] 4) [b]y inevitable
accident[;] 5) [b]y the blameless misfortune of the petitioner.” Ancro, 2001 WL 1298913, at *2 (quoting
Uselton v. Price, 292 S.W.2d 788, 794 (Tenn. Ct. App. 1956)). Brookside does not allege any facts that would
fit under any of these categories and does not make an argument under this provision.
        3
          Pursuant to Tenn. Code Ann. § 27-5-108(a)(1), a party may appeal a general sessions judgment to the
circuit court within ten days.
                                                         4
Tenn. Code Ann. § 16-15-727(b) (emphasis added). Under Tenn. Code Ann. § 16-15-727(b),
however, an appeal to circuit court from a general sessions court‟s ruling on a motion for
relief from a judgment must be filed within ten days of the ruling.4

       In the present case, Brookside did not file a de novo appeal within ten days of the
general sessions order setting aside the default judgment. That de novo appeal, however, was
the “plain, speedy and adequate remedy” available to Brookside. We find no abuse of
discretion in the trial court‟s decision to dismiss Brookside‟s petition for a writ of certiorari
and remand the matter to the general sessions court for further proceedings.

       The failure to perfect a proper appeal to circuit court precludes that court, or this
Court, from examining the general sessions court proceedings.

                                                  CONCLUSION

       We affirm the decision of the trial court in all respects. Costs of appeal are assessed
against the appellant.




                                                                            _________________________
                                                                            ANDY D. BENNETT, JUDGE




         4
            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). Moreover, 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 *2 (Tenn. Ct. App. Mar. 13, 2003); Cagle, 2001 WL
792644, at *1.

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