                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                               May 9, 2002 Session

BAMBI KENNEDY, d/b/a KENNEDY MARKETING SERVICES v. TITAN
               SPECIALIZED SERVICES, INC.

                 Direct Appeal from the Circuit Court for Rutherford County
                       No. 45124   Hon. Robert E. Corlew, Chancellor



                      No. M2001-02696-COA-R3-CV - Filed June 5, 2002



On appeal from Sessions Court, the Chancellor allowed a set-off on the indebtedness. Plaintiff
appeals, contending defendant filed no pleading which would entitle him to a set-off. We affirm.

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

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which BEN H. CANTRELL, J.,
and WALTER C. KURTZ, SP. J., joined.

G. Kline Preston, IV., Nashville, Tennessee, for Appellant.

Brad Hornsby, Murfreesboro, Tennessee, for Appellee.



                                              OPINION


              Plaintiff filed the action in Sessions Court, seeking unpaid fees for marketing
services. The Sessions Court entered Judgment for the plaintiff on July 3, 2001, for fees owed in
the amount of $3817.68. On July 6, 2001, defendant appealed the case to Circuit Court.

                 The record indicates that the Circuit Court heard the matter, but there is no transcript
or statement of the evidence in the record. The only information as to what occurred during the
hearing is a letter from the Chancellor to the attorneys dated September 11, 2001, and the Exhibits
in the record. The letter states that the Court had previously determined that plaintiff proved
damages, except for some minor charges regarding “translation of list book to disc” and an escrow
account. The letter then states:
               The issue then further arises as to whether the Court should consider in this cause
               defenses that the Defendant was in fact required to make payment to third-parties for
               advertising services which he did not authorize and did not authorize the Plaintiff to
               authorize. The evidence is undisputed that the Defendant initially hired the Plaintiff
               to work as a marketing agent. The evidence further is undisputed that a portion of
               the work conducted by the Plaintiffs on behalf of the Defendant was the preparation
               of advertisements and placing of those advertisements in two publications known as
               “Power Quality,” and “Electrical Contracting & Engineering News.” The evidence
               is undisputed that the Defendant authorized two Power Quality advertisements
               although the Plaintiff authorized four such advertisements. Similarly, the proof is
               undisputed that the Plaintiffs contracted for publication of an additional
               advertisement in Electrical Contracting & Engineering News. The evidence shows
               that the payment of the amounts involved in these advertisements exceeds the amount
               for which the plaintiff has sued.

               At issue before us is the question whether in an appeal from General Sessions Court
               the Circuit Court can consider the amounts asserted as a setoff without the filing of
               a specific counter-complaint. It appears that the Court should consider those other
               issues to the extent that they are raised as a setoff. It is therefore the duty of the
               Court to dismiss the action.

               The Circuit Court then entered an Order of Dismissal, and this Appeal ensued.

               As noted, no transcript or statement of the evidence was filed, and defendant filed a
Motion to Dismiss on the grounds there was no transcript of evidence presented in this Court. By
Order of this Court it was ruled that appellant was precluded from challenging any of the Circuit
Court’s findings of fact, but appellant could challenge the Court’s legal conclusions, and thus the
motion to dismiss was denied.

                Appellant argues that it was improper for the Circuit Court to allow defendant to
present evidence regarding money it had paid for advertising which plaintiff authorized without
defendant’s consent, and for allowing these sums to be set-off against plaintiff’s proven damages.
Since all of the facts as found by the Chancellor are conclusively presumed to be correct, the only
issue before this Court is whether the defendant was required to file a written pleading seeking to
set off the amounts as found by the Trial Judge.

                In Vinson v. Mills, 530 S.W.2d 761 (Tenn. 1975), the Supreme Court was faced with
the issue of whether the parties had to file written pleadings in a case appealed from the Sessions
Court to Circuit Court. It held that parties are not required to replead their actions, reissue process
or take any other retrospective step. Id. The Court recognized that pleadings in General Sessions
courts are oral, and that the practice prior to the enactment of the Rules was to allow oral pleadings
in Circuit Court upon appeal from General Sessions. The Court concluded that the enactment of the
Rules had not changed this pleading practice, and the Rules only applied to the extent that the Trial


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Court directed them to be applied in a given case. Id.

               This rationale has been followed by this Court in cases dealing with General Sessions
appeals, and we have allowed defendants’ counter-claims to be asserted where no written pleadings
were filed. See Hendersonville Wrecker Service v. Grubbs, 1986 WL 13503 (Tenn. Ct. App. Dec.
3, 1986); Edlund v. Dodge Country, Inc., 1987 WL 17872 (Tenn. Ct. App. Oct. 5, 1987). We have
recognized and followed the direction of Tenn. Code Ann. §16-15-729 when dealing with appeals
from General Sessions Courts:

                       No civil case, originating in a general sessions court and carried to a higher
               court, shall be dismissed by such court for any informality whatever, but shall be
               tried on its merits; and the court shall allow all amendments in the form of action,
               the parties thereto, or the statement of the cause of action, necessary to reach the
               merits, upon such terms as may be deemed just and proper. The trial shall be de
               novo, including damages.

               Accord: Ware v. Meharry Medical College, 898 S.W.2d 181 (Tenn. 1995).

               Based upon the foregoing authority, we conclude the Circuit Court acted properly in
allowing credit for sums paid by defendant in order to provide “complete resolution of all the claims
between the parties”. Ware, p.184. The Trial Court did not require the parties to have written
pleadings, and stated that it would consider this issue as justification for non-payment. This is in
accord with the foregoing authorities, and we affirm the Judgment of the Trial Court.

               Appellee asks that this appeal be declared frivolous pursuant to Tenn. Code Ann. §
27-1-122.

                We cannot say this appeal was so obviously devoid of merit or lacking in justiciable
issues that it would warrant sanctions. Accordingly, the appellee’s request for attorney’s fees is
denied.

               The Judgment of the Trial Court is affirmed and the cause remanded, with the cost
of the appeal assessed to appellant, Bambi Kennedy.




                                                      _________________________
                                                      HERSCHEL PICKENS FRANKS, J.




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