                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                       May 14, 2015 Session


                            CHRISTIE CREWS v. GARY JACK

                     Appeal from the Circuit Court for Madison County
                           No. C1487     Nathan B. Pride, Judge

                              ________________________________

                         No. W2014-01964-COA-R3-CV –Filed May 29, 2015
                            _________________________________


Plaintiff filed suit against defendant in general sessions court. After the general sessions
court entered judgment in favor of defendant, plaintiff appealed to the circuit court. The
circuit court conducted a trial de novo, but the defendant failed to appear and defend. The
circuit court entered a default judgment in favor of plaintiff after she presented her proof.
Defendant filed a motion to set aside the default judgment alleging that he never received
notice of the trial date in circuit court. The circuit court denied defendant‟s motion to set
aside the default judgment. We reverse the circuit court‟s ruling and remand for further
proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and KENNY ARMSTRONG, J., joined.

Donald D. Glenn, Jackson, Tennessee, for the appellant, Gary Jack.

A. Russell Larson, Jackson, Tennessee, for the appellee, Christie Crews.


                                  MEMORANDUM OPINION1

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
                                                                                 (Continued…)
                                                Background

       On January 16, 2014, Christie Crews (“Appellee”) filed a complaint against Gary
Jack (“Appellant”) in the General Sessions Court of Madison County alleging that Mr.
Jack wrongfully demolished her vehicle.2 In the civil warrant, Ms. Crews listed two
addresses for service of process on Mr. Jack: 58 Mifflin Road, Jackson, Tennessee, and
3019 Beech Bluff Road, Jackson, Tennessee. The Madison County Sheriff‟s Department
subsequently served the civil warrant on January 21, 2014 upon Mr. Jack at his home
address, 3019 Beech Bluff Road, Jackson, Tennessee.3

       On February 24, 2014, Mr. Jack appeared in general sessions court at the docket
call to answer Ms. Crews‟s allegations. Mr. Jack disputed liability in this case at the
docket call, and a trial date was then set before Judge Christy R. Little to occur in April
2014. The civil warrant‟s “Judgment” section indicates that Mr. Jack prevailed at trial,
and Ms. Crews‟s case was dismissed on April 7, 2014.

        On April 17, 2014, Ms. Crews appealed the judgment of the general sessions court
to the Circuit Court of Madison County. Mr. Jack alleges that he did not receive any
notice of the appeal or notice of the subsequent hearing dates. The record includes several
letters and notices sent by the circuit court to Mr. Jack at the various addresses. First, the
record includes a letter from the office of the Madison County Circuit Court Clerk. An
envelope bearing the court clerk‟s return address shows that this letter was mailed to Mr.
Jack at 58 Mifflin Road, Beech Bluff, Tennessee. The mailing was returned with the
United States Postal Service designation “Return to Sender No Such Number Unable to
Forward.”

        Next, the record includes a letter dated April 24, 2014 from Circuit Judge Nathan

        (…continued)
        This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason
in any unrelated case.
        2
            The underlying allegations in Ms. Crews‟s lawsuit are not relevant to this appeal.
        3
         The civil warrant only indicates that service had been achieved on Mr. Jack; it does not indicate
at which address service occurred. However, the unrefuted testimony of Mr. Jack and the statement of the
evidence, discussed infra, indicate that Mr. Jack was served at his home address of 3019 Beech Bluff
Road, Jackson, Tennessee.
                                                       2
B. Pride sent to Mr. Jack at 58 Mifflin Road, Jackson, Tennessee. The letter states that
the circuit court set the case for trial on June 3, 2014. The record does not include a
returned envelope for this mailing, presumably because it had been delivered to the
address.

        Last, an Order and Notice of Hearing was filed on June 3, 2014 by Judge Pride
that rescheduled the case for July 7, 2014. The Order and Notice of Hearing indicates
that it was mailed to Mr. Jack at two addresses: 58 Mifflin Road, Jackson, Tennessee, and
58 Mifflin Road, Beech Bluff, Tennessee. The mailing to 58 Mifflin Road, Beech Bluff,
Tennessee, was returned with the United States Postal Service designation “Return to
Sender No Such Number Unable to Forward.” The record does not include a returned
envelope for the notice sent to 58 Mifflin Road, Jackson, Tennessee, presumably because
it had been delivered to the address. In sum, all of the notices sent from the circuit court‟s
office to 58 Mifflin Road, Beech Bluff, Tennessee, were returned to the sender as
undeliverable. The notices sent to Mr. Jack at 58 Mifflin Road, Jackson, Tennessee, were
presumably delivered. No notices were ever mailed to Mr. Jack at 3019 Beech Bluff
Road, Jackson, Tennessee, Mr. Jack‟s home address and the place of service of the
original general sessions civil warrant.

       On July 7, 2014, the circuit court was prepared to hold a trial de novo on Ms.
Crews‟s appeal. Ms. Crews and her witnesses were present; however, Mr. Jack was not.
The court waited an additional fifteen minutes for him to appear. Counsel for Ms. Crews
moved for an entry of default judgment against Mr. Jack, which the circuit court granted
after hearing Ms. Crews‟s proof. The circuit court entered judgment by written order on
July 15, 2014. The Certificate of Service on the judgment indicates that it was mailed to
Mr. Jack at 58 Mifflin Road, Jackson, Tennessee.

        According to later testimony, Mr. Jack received a copy of the judgment after his
neighbor (to whom the judgment was mailed) brought it to him. Mr. Jack then went to the
clerk‟s office and reviewed the court file and noticed that some of the court notices and
letters had been returned as undeliverable. Until this point in the proceedings, Mr. Jack
had been unrepresented by counsel.

       On July 24, 2014, Mr. Jack, through counsel, filed a Motion to Set Aside the
Default Judgment and to Vacate the Default Judgment. As the basis for his motion, Mr.
Jack argued that he had never been properly served with notice of the hearing date.

      The trial court held a hearing on Mr. Jack‟s motion on August 12, 2014. Ms.
Crews did not attend, although her counsel did. At the hearing, Mr. Jack was the only

                                              3
witness. 4 He testified that he neither owns property nor resides at 58 Mifflin Road,
Jackson, Tennessee, or 58 Beech Bluff, Jackson, Tennessee. He admitted that he operates
a shop at 58 Mifflin Road, Jackson, Tennessee, but stated that he does not own the
property. Mr. Jack testified that while there is a mailbox located on this property, the
mailbox belongs to a residence next to Mr. Jack‟s shop. According to Mr. Jack, he does
not know the names of the people who live next door to his shop and who own the
mailbox. He asserted that the circuit court did not send notice of the hearing date to his
home address (the address where he was served with the general sessions civil warrant)
of 3019 Beech Bluff Road, Jackson, Tennessee.

        Mr. Jack also testified that he was unaware that Ms. Crews was pursuing an appeal
in the circuit court because he was never mailed any notices. Additionally, Mr. Jack
stated that he called the Madison County Sheriff‟s office ten days after the entry of the
general sessions judgment to inquire as to whether they had any papers to serve him. The
Sheriff‟s office said it did not. However, Mr. Jack admitted that he did speak to Ms.
Crews‟s counsel, Mr. Russell Larson, via telephone when Mr. Larson called and asked
Mr. Jack if he was ready to proceed to trial. According to Mr. Jack, Mr. Larson did not
inform him of the trial date nor did he tell him Ms. Crews had appealed. Mr. Jack
testified that he believed Ms. Crews “may be suing him for something else[.]”

        Despite Mr. Jack‟s protestations that he did not receive notice of the trial date in
circuit court, his motion was denied by written order entered August 20, 2014. Mr. Jack
appealed the trial court‟s judgment on September 9, 2014.

                                                  Issues

        Mr. Jack presents two interrelated issues for review on appeal:

                1. Whether the trial court abused its discretion when it refused
                to set aside the default judgment entered against Mr. Jack;
                and
                2. Whether the trial court properly entered the default
                judgment against Mr. Jack.


        4
         Mr. Jack filed an unopposed Statement of the Evidence detailing his testimony from the hearing
on his motion. Tennessee Rule of Appellate Procedure 24(c) directs appellants to prepare a statement of
the evidence in certain cases, such as where a transcript of a hearing is not available. Rule 24(c) permits
appellees to file an objection to the appellant‟s statement within fifteen days. Here, Ms. Crews did not file
an objection to Mr. Jack‟s statement. Thus, we elicit the facts of this appeal from Mr. Jack‟s unopposed
Statement of the Evidence.
                                                     4
Additionally, in her posture as Appellee, Ms. Crews presents an additional issue:

             1. Whether the trial court erred in not finding that Mr. Jack‟s
             notice of appeal was time barred by Rule 62 of the Tennessee
             Rules of Civil Procedure.

                              Timeliness of Mr. Jack’s Appeal
        As a preliminary matter, we address Ms. Crews‟s contention that Mr. Jack‟s
appeal is time-barred. Ms. Crews argues that, because Mr. Jack did not seek a stay or
suspension of the circuit court‟s judgment in favor of Ms. Crews, the judgment became
final after thirty days. We respectfully disagree.

        In order to preserve an appeal as of right, an appellant must timely file his notice
of appeal. Tenn. R. App. P. 3(e). Failure to timely file an appeal precludes this Court
from obtaining subject matter jurisdiction. Ball v. McDowell, 288 S.W.3d 833, 836
(Tenn. 2009) (citations omitted). Tennessee Rule of Appellate Procedure 4(a) requires an
appellant to file his notice of appeal within thirty days of the entry of the judgment
appealed from. However, Rule 4(b) suspends the operation of the thirty-day time frame
while certain post-trial motions are properly pending in the trial court. Tenn. R. App. P.
4(b). One such motion is a motion for new trial pursuant to Rule 59.07 of the Tennessee
Rules of Civil Procedure. Tenn. R. App. P. 4(b). We have consistently recognized that a
timely filed and served motion to set aside a default judgment is deemed a motion for
new trial pursuant to Rule 59.07. See, e.g., Henson v. Diehl Machs., Inc., 674 S.W.2d
307, 310 (Tenn. Ct. App. 1984). Thus, a motion to set aside a default judgment suspends
the thirty-day time frame in which an appellant generally has to file an appeal under Rule
4(a). Id.; see also Tenn. R. App. P. 4(b).

       The circuit court entered the default judgment on July 15, 2014. Mr. Jack filed his
motion to set aside on July 24, 2014, which is clearly within thirty days of the entry of
default judgment. Accordingly, we conclude that Mr. Jack‟s filing of his motion to set
aside the default judgment suspended the thirty-day rule of Rule 4(a). He filed his appeal
on September 9, 2014, which is within thirty days of the circuit court‟s denial of the
motion to set aside on August 20, 2014. Thus, Mr. Jack‟s appeal was timely filed and is
properly before this Court. We next turn to the issue concerning the trial court‟s denial of
Mr. Jack‟s motion to set aside the default judgment.

                             Motion to Set Aside Judgment

        Here, Mr. Jack appeals the trial court‟s denial of his motion to set aside the
default judgment that was entered against him because he did not receive notice of the
                                             5
trial date.

        As an initial matter, we address both parties‟ classification of the trial court‟s final
judgment as a “default judgment.” A default judgment may be entered when “a party
against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend” the action. Tenn. R. Civ. P. 55.01. Here, Mr. Jack was not required at any point
before the circuit court trial date to file any responsive pleadings. Nicholson v. Lester
Hubbard Realtors, No. W2010-00658-COA-R3-CV, 2010 WL 4244135 (Tenn. Ct. App.
Oct. 28, 2010) (citing Vinson v. Mills, 530 S.W.2d 761 (Tenn. 1975) (“Nothing in the
[Tennessee Rules of Civil Procedure], however, requires that the parties replead their
action . . . once a case is appealed from a general sessions court to a circuit court.”). Thus,
Mr. Jack‟s purported failure to appear at trial was his only misstep. At least two other
cases have concluded that similar situations (i.e. where the defendant‟s only mistake was
a failure to appear at the hearing or trial) did not result in default judgments “but, rather,
was a judgment based on the issues joined by the pleadings and the testimony and
evidence presented at the trial.” E.g., Fausnaught v. DMX Works, Inc., No. M2011-
01911-COA-R3-CV, 2012 WL 2087157 (Tenn. Ct. App. June 8, 2012) (holding that the
action of the trial court was not a default judgment when the defendant failed to appear at
trial because the defendant had filed an answer (albeit after several delays)); Barber &
McMurry, Inc. v. Top-Flite Dev. Corp., 720 S.W.2d 469, 471 (Tenn. Ct. App. 1986)
(holding that the trial court‟s judgment was not a default judgment because it was based
on evidence presented at trial, even though defendant failed to appear for trial). However,
several cases have also analyzed similar situations as if the resulting judgment was
properly classified as a default judgment. E.g., Beck v. Beck, No. W2011-01806-COA-
R3-CV, 2012 WL 1656228 (Tenn. Ct. App. May 11, 2012) (analyzing as a default
judgment a situation where former wife failed to appear for a hearing based on lack of
notice by former husband); Campbell v. Archer, 555 S.W.2d at 110 (holding that, where
defendants‟ counsel had no knowledge of trial date, facts made out a case of a excusable
neglect whereby the trial court erred in refusing to set aside the “default judgment”).

       As such, our research has revealed that Mr. Jack‟s motion could be properly
termed several ways. First, if the judgment entered is a proper default judgment, Mr.
Jack‟s motion may be properly termed a motion to set aside a default judgment brought
pursuant to Tennessee Rule of Civil Procedure 55.02. See Tenn. R. Civ. P. 55.02 (“For
good cause shown the court may set aside a judgment by default in accordance with Rule
60.02.”). Second, and again when the judgment is a proper default judgment, several
cases have concluded that a motion to set aside the default judgment should be deemed a
motion for a new trial under Rule 59.07. Hanson v. Diehl, 674 S.W.2d 307 (Tenn. Ct.
App. 1984); Campbell v. Archer, 555 S.W.2d 110 (Tenn. 1997). Finally, if the judgment
entered against Mr. Jack is not actually a default judgment, Mr. Jack‟s motion may be
                                               6
properly termed a motion to alter or amend the judgment brought pursuant to Rule 59.04.
We believe, in this instance, that any distinction is immaterial.

        Regardless of the rule that technically governs Mr. Jack‟s motion, we review the
trial court‟s decision under an abuse of discretion standard. Henry v. Goins, 104 S.W.3d
475, 479 (Tenn. 2003) (motion to set aside default judgment); Campbell, 555 S.W.2d 110
(Tenn. 1977) (motion for new trial); Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003)
(motion to alter or amend). Consequently, we will not set aside the trial court‟s ruling
unless it has abused its discretion. Moore v. Palmer, 675 S.W.2d 192, 194 (Tenn. Ct.
App. 1984). A trial court abuses its discretion when it has applied an incorrect legal
standard or has reached a decision which is against logic or reasoning that caused an
injustice to the party complaining. Johnson v. Richardson, 337 S.W.3d 816, 819 (Tenn.
Ct. App. 2010) (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). We will not
overturn the trial court‟s decision merely because reasonable minds could reach a
different conclusion. Eldridge, 42 S.W.3d at 85. While this standard is a heavy burden
for the appellant, Tennessee law highly favors that cases are determined on the merits.
Bowers v. Gutterguard of Tenn., Inc., No. M2002-02877-COA-R3-CV, 2003 WL
22994302 (Tenn. Ct. App. Dec. 17, 2003).

       In the instant case, the only evidence before the trial court and the only evidence in
the record shows that Mr. Jack does not reside at or own any of the addresses to which
the circuit court mailed notices of the trial date in the circuit court. It is a fundamental
principle in American law that “notice and the opportunity to be heard are the minimal
requirements of due process.” Guseinov v. Synergy Ventures, Inc., No. M2014-00213-
COA-R3-CV, 2014 WL 5390567 (Tenn. Ct. App. 2014) (citing U.S. Const. amend. XIV;
Matthews v. Eldridge, 424 U.S. 319, 333 (1976)). Further, “[b]asic due process requires
„notice reasonably calculated under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections.‟”
Burnett v. Burnett, No. E2011-002297-COA-R3-CV, 2012 WL 1854666, at *2 (Tenn.
Ct. App. 2012) (citing Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950))). Mr. Jack‟s
testimony that he was unaware of the circuit court proceedings remains uncontroverted
because Ms. Crews presented no evidence at the hearing on Mr. Jack‟s motion. Mr. Jack
had been initially served with the general sessions civil warrant at 3019 Beech Bluff
Road, Jackson, Tennessee, and he asserts that if he had been served with notice at this
address he would have appeared to defend on the trial date set by the circuit court. The
undisputed evidence shows that Mr. Jack did not receive notice of the trial date, which
Tennessee courts recognize as “excusable neglect” and a proper basis to set aside a
judgment. Estate of Vanleer, No. M2001-00687-COA-R3-CV, 2002 WL 32332191, at
*6 (Tenn. Ct. App. Dec. 5, 2002) (citing Tenn. R. Civ. P. 60.02; Campbell v. Archer, 555
                                             7
S.W.2d 110, 113 (Tenn. 1977)). Furthermore, there is nothing in the record that suggests
that Mr. Jack‟s failure to appear at trial was the result of defiance or obstruction; indeed,
Mr. Jack promptly appeared to defend against Ms. Crews‟s allegations in the general
sessions court, and there is nothing in the record on appeal to suggest that he would not
have done so in the de novo trial on Ms. Crews‟s appeal. See Orten v. Orten, 185 S.W.3d
825, 830 (Tenn. 2005) (holding that trial court did not abuse its discretion in declining to
alter or amend a judgment after husband‟s failure to appear was likely due to “his being
obstructive and defiant”). From our review of both the Statement of the Evidence
submitted to this Court without objection from Ms. Crews and the trial court‟s written
order,5 the trial court made no credibility findings from which this Court could conclude
that the trial court found Mr. Jack to be an unreliable witness. Under these circumstances,
we conclude that the trial court abused its discretion in denying Mr. Jack‟s motion based
on the undisputed testimony that he had no notice of the trial date. To conclude
otherwise, based on the unopposed testimony, is an abuse of discretion because it defies
logic and causes an injustice to the party complaining. See Johnson, 337 S.W.3d at 819.

                                              Conclusion

       The decision of the Circuit Court of Madison County denying Mr. Jack‟s motion
to set aside the default judgment is reversed. We remand this case to the trial court for
further proceedings as are necessary and are consistent with this Opinion. Costs of this
appeal are taxed to Appellee Christie Crews for which execution may issue if necessary.



                                                          _________________________________
                                                          J. STEVEN STAFFORD, JUDGE




        5
           In her brief, Ms. Crews contends that the trial court stated that it did not believe Mr. Jack‟s
recitation of the facts surrounding his failure to appear at the trial. First, as previously discussed, the
Statement of the Evidence presented by Mr. Jack does not contain such a statement by the trial court. If
the Statement of the Evidence was not accurate, Ms. Crews was required to file an objection in the trial
court to correct it. See Tenn. R. App. P. 24(c). This she failed to do. More importantly, however, the trial
court speaks through its orders. Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011).
Because the trial court‟s order does not contain any indication that the trial court questioned Mr. Jack‟s
credibility, we will not consider Ms. Crews‟s allegation on appeal.
                                                     8
