                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 September 17, 2003 Session

         WILLIAM B. TANNER v. JOHN W. HARRIS, JR., TRUSTEE

                      Appeal from the Chancery Court for Shelby County
                       No. 109179-3 D. J. Alissandratos, Chancellor



                  No. W2002-02634-COA-R3-CV - Filed December 31, 2003


This case involves the collateral attack of a judgment. In the underlying proceedings, the defendant
filed a lawsuit in general sessions court against the plaintiff individual. Process was served on the
registered agent to accept service of process for the plaintiff’s corporation. The plaintiff did not
appear in general sessions court, and a default judgment was rendered in favor of the defendant. This
was not appealed. The plaintiff then filed this separate lawsuit in chancery court to set aside the
general sessions default judgment, claiming he was not served with process in the general sessions
proceedings. The chancery court issued an order setting aside the general sessions judgment. The
defendant appeals. We affirm, holding that the chancery court had jurisdiction to determine whether
service was proper and finding no abuse of discretion on the part of the chancery court in setting
aside the general sessions default judgment.

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

HOLLY M. KIRBY, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and ALAN
E. HIGHERS, J., joined.

John W. Harris, Jr., Trustee, Memphis, Tennessee, pro se.

Gary E. Veazey, Memphis, Tennessee, for the Appellee William B. Tanner.

                                             OPINION

        This case involves the collateral attack in chancery court of a general session court judgment.
In the underlying general sessions proceedings, Defendant/Appellant John W. Harris (“Harris”),
proceeding pro se, sought injunctive relief as well as compensatory and punitive damages in general
sessions court against Plaintiff/Appellee William B. Tanner, (“Tanner”) individually, for Tanner’s
alleged impermissible placement of a billboard on Harris’s property. The general sessions court
warrant lists Yanna Kimbrough (“Kimbrough”), secretary for attorney Martin Grusin (“Grusin”), as
having accepted service of process on Tanner’s behalf as his agent. Tanner did not appear at the
October 29, 1996 hearing in general sessions court, and Harris was granted a default judgment
against him. On November 21, 1996 Tanner filed a motion in general sessions court to set aside the
default judgment, arguing that he had not been served process. On December 12, 1996, the general
sessions court entered an order denying Tanner’s motion, reasoning that a general sessions court is
not permitted to set aside a final judgment under Travelers Indemnity Co. v. Callis, 481 S.W.2d 384,
385 (Tenn. 1972) and, in addition, finding that the face of the return of the process server established
conclusively that Kimbrough was authorized to accept service on Tanner’s behalf.

        In March 1997, Tanner filed a lawsuit in Chancery Court, seeking to set aside the general
sessions court judgment, again asserting that process was not served on either himself or an
authorized agent. Harris filed a motion to dismiss for lack of subject matter jurisdiction, arguing that
the Chancery Court did not have jurisdiction to hear appeals from general sessions court. Harris’s
motion to dismiss was denied and the Chancery Court went on to hear the case on the merits.
Throughout the proceedings, Harris maintained that the Chancery Court did not have subject matter
jurisdiction.

        At trial, the chancellor heard testimony from attorney Grusin and from the private process
server who served the warrant on Kimbrough, Richard Billings (“Billings”). Billings testified that
Grusin consented to accept the service of process on behalf of Tanner, and told Billings to leave the
general sessions warrant with his secretary, Kimbrough. Billings testified that he followed these
instructions. Grusin, on the other hand, testified that though he was the registered agent to accept
process for Tanner’s corporation, he had never been authorized to accept service of process for
Tanner, individually, nor had he told Billings otherwise. Grusin also described his law office’s
procedures for accepting service of process on behalf of a client, including an explanation of the
accompanying documentation. He testified that, in this case, there was no documentation to indicate
that his office had accepted service of process on behalf of Tanner, individually. He also testified
that he did not see the general sessions warrant Billings testified to leaving with his secretary,
Kimbrough.

        After hearing the testimony, the trial court found that Tanner had not been served process.
In his oral ruling, the chancellor said:

                I’m not saying that anyone’s telling anything less than the truth, but I think
        there was a difference between communication to give the impression to Mr. Grusin
        that Mr. Billings was talking about Tanner Peck LLC, and Mr. Billings thinking he’s
        talking about Tanner Peck Outdoor Sign Company.

               But I don’t think they must have been exactly communicating about William
        B. Tanner because in Mr. Billings’s mind he may have thought he was talking about
        William B. Tanner, individually.

                But I’m equally convinced that Mr. Grusin would have set him straight and
        said, no, I am sorry, I can’t accept that on Mr. William B. Tanner, individually
        because that’s not my capacity.


                                                  -2-
                In any event, I find for whatever reasons, Mr. William B. Tanner, individually
         was not served.

Thus, the chancellor found both witnesses to be credible in relating their impressions of the events
surrounding the attempted service of process, but that a lack of communication resulted in no service
of process on Tanner individually. The chancellor set aside the judgment of the general sessions
court.1 Harris filed a motion to alter or amend the order. This motion was denied. Harris now
appeals the decision of the Chancery Court to set aside the general sessions court judgment against
Tanner.

       The issues on appeal are (1) whether the Chancery Court had jurisdiction to set aside the
general sessions court judgment and (2) if so, whether the Chancery Court erred in doing so.

        Because the case was tried without a jury, we review the chancellor’s factual findings de novo
accompanied by a presumption of correctness unless the evidence preponderates otherwise. Tenn.
R. App. P. 13(d); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). We give particular
deference to the credibility accorded to witnesses by the trier of fact, which makes the initial
determination of the weight, faith, and credit to be given to the testimony of a witness. Estate of
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). The trial judge, who has the opportunity
to observe the witnesses in their manner and demeanor while testifying, is in a far better position than
this Court to determine credibility. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The trial court’s legal
conclusions are reviewed de novo with no presumption of correctness. Campbell, 919 S.W.2d at 35.

        The first issue on appeal is whether the Chancery Court had jurisdiction to set aside the
general sessions court judgment. Harris asserts that, under section 27-5-108 of the Tennessee Code
Annotated and Graves v. Kraft Gen. Foods, 45 S.W.3d 584, 586 (Tenn. Ct. App. 2000), the
chancery court did not have subject matter jurisdiction to hear Tanner’s claim. Harris argues that
section 27-5-108 requires that the appeal of a judgment by a general sessions court must be to circuit
court, not chancery court, and must be filed within ten days of the judgment. He contends that
Graves establishes that the chancery court does not have jurisdiction to hear an appeal from general
sessions court. Since Tanner’s lawsuit was filed in chancery court, not circuit court, and was filed
well beyond the ten-day limit, Harris argues, Tanner not only filed his appeal in the wrong court, but
he filed it too late.

        Harris’s argument on appeal is based on the premise that this action is an appeal from a
general sessions court judgment. It is not. Rather, Tanner’s complaint was a collateral attack on the
general sessions court’s judgment, which the chancery court has jurisdiction to hear in limited
instances. In Cullum & Maxey Camping Center, Inc. v. Adams, this Court observed: “ ‘[A] suit
in equity may be prosecuted to secure relief against a decree or judgment rendered by a court which


         1
          The chanc ellor also dismissed a c ounter-com plaint included in Harris’s answer. Harris does not appeal the
dismissal of his counter-claim. (Reply Brief at 9)

                                                         -3-
did not have jurisdiction of the person of the complaining party affected by it.’ ” Cullum & Maxey
Camping Ctr, Inc. v. Adams, 640 S.W.2d 22, 24 (Tenn. Ct. App. 1982) (quoting Rule v. Bell, 617
S.W.2d 885, 886 (Tenn. 1981)).

       The circumstances under which an independent action may be brought to collaterally attack
a judgment are discussed in Jerkins v. McKinney, 533 S.W.2d 275 (Tenn. 1976). In Jerkins, the
Court adopted the following standard:

         “Generally, such an independent action [to set aside a judgment] must show a
         recognized ground, such as fraud, accident, mistake or the like, for equitable relief
         and that there is no other available or adequate remedy. It must also appear that the
         situation in which the party seeking relief finds himself is not due to his own fault,
         neglect or carelessness. In this type of action, it is fundamental that equity will not
         grant relief if the complaining party ‘has, or by exercising proper diligence would
         have had, an adequate remedy at law, or by proceedings in the original action * * *
         to open, vacate, modify or otherwise obtain relief against, the judgment.’ The
         granting of relief in this unusual type of proceeding lies largely within the discretion
         of the trial judge.”

Id. at 281-82 (quoting Winfield Assoc., Inc. v. Stonecipher, 429 F.2d 1087, 1090 (10th Cir. 1970)).
Thus, in the instant case, for Tanner to bring an independent action in Chancery Court to collaterally
attack the general sessions judgment, he must show a recognized ground for equitable relief, “such
as fraud, accident, mistake or the like.” In addition, he must show that there was no other available
or adequate remedy. 2

        We address first the requirement that Tanner have no other available or adequate remedy.
Here, Tanner alleges that he was not served with the general sessions court warrant. There is no
indication in the record that Tanner knew of the default judgment against him within the ten-day
period in which an appeal could have been filed. The record indicates that, shortly after the ten-day
period for appeal had elapsed, Tanner filed a motion in general sessions court to set aside the default
judgment. This motion was correctly denied on the basis “that Rule 60 of the Tenn.R.Civ.P., which
provides a mechanism for obtaining relief from a judgment, [is] not applicable in a general sessions
court.” Jones v. McMurray, No. M2000-01959-COA-R3-CV, 2001 WL 1097052, at *1 (Tenn. Ct.
App. Sept. 20, 2001). An appeal from the denial by the general sessions court of the motion to set
aside would have been futile; the circuit court or an appellate court would have no choice but to
affirm, since the denial of the motion by the general sessions court was correct. Thus, in this case,
Tanner had no adequate remedy other than an independent action to collaterally attack the general
sessions court default judgment.



         2
           In Jerkins, the Court also discusses an independent lawsuit pursuant to Rule 60 of the T ennessee R ules of C ivil
Procedure to seek relief from a final judgment. Jerkins, 533 S.W .2d at 281 . We do not ad dress Rule 6 0 in this ap peal,
since the record in this case contains no ind ication that Tanner’s chancery co urt lawsuit was filed pursuant to Rule 60.

                                                            -4-
        As noted above, Tanner was required to establish a recognized ground for equitable relief,
such as fraud or mistake. In this case, after hearing the testimony, the Chancery Court concluded that
Grusin thought Billings’s inquiry was whether he was the registered agent for Tanner’s corporation,
while Billings thought Grusin said that he was the registered agent to accept service of process for
Tanner individually, leading to the mistaken conclusion that serving Grusin was adequate service
of process on Tanner individually. After hearing the testimony presented, the Chancery Court found
that such a mistake occurred, and after review of the record and with deference to the credibility
determinations made by the trial judge, we cannot conclude that the evidence preponderates against
the trial court’s finding. 3 Thus, we find that the Chancery Court had jurisdiction to consider
Tanner’s independent lawsuit to set aside the default judgment entered against him by the general
sessions court.

        In addressing the second issue on appeal, as noted above, the decision of whether to grant the
equitable relief of setting aside the judgment “lies largely within the discretion of the trial judge.”
Jerkins, 533 S.W.2d at 282. Under the circumstances in this case, we cannot conclude that the
Chancery Court’s decision to set aside the general sessions court judgment was an abuse of
discretion. Thus, the decision of the Chancery Court is affirmed.

        Finally, Tanner asks for damages, costs, and expenses of this appeal under section 27-1-122
of the Tennessee Code Annotated, arguing that this appeal is frivolous. Since Harris raised on appeal
a legitimate issue regarding whether the Chancery Court had subject matter jurisdiction to hear this
case, we decline Tanner’s request.

      The decision of the trial court is affirmed. Costs are taxed against Defendant/Appellant John
W. Harris, and his surety, for which execution may issue if necessary.




                                                                 ___________________________________
                                                                 HOLLY M. KIRBY, JUDGE




         3
           Harris argues that Grusin had a duty to notify Tanner of the general sessions warrant delivered to his office,
since Grusin had from time to time represented Tanner individually, citing Jarvis v. Ja rvis, 664 S.W.2d 694, 696-97
(Tenn. Ct. App. 198 3). Jarvis is distinguishable since it involves a domestic case over which the court had continuing
jurisdiction. Id. at 696. Mo reover, there are no facts in the record supporting the assertion that service of process on
Grusin constituted service on Tanner, particularly in light of Grusin’s assertion, apparently credited by the Chancery
Court, that he did not see the genera l sessions warrant. See Id., 664 S.W .2d at 696 -97. T herefo re, this argument is
without merit.

                                                          -5-
