                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                             NOVEMBER 18, 2010 Session

 DEUTSCHE BANK NATIONAL TRUST CO. v. R. D. ALDRIDGE, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-003650-09     John R. McCarroll, Judge


               No. W2010-00061-COA-R3-CV - Filed January 27, 2011


Bank purchased property at a foreclosure sale, and a tenant of the previous owner continued
to occupy the property after the sale. The deed of trust executed by the previous owner
provided that if the property was sold, any person holding possession of the property through
the borrower would either surrender possession of the property or become a tenant at will of
the purchaser. Bank filed a detainer warrant against the tenant and was awarded possession
of the property by the general sessions court. On appeal, the circuit court also awarded
possession to the Bank. The tenant appeals. For the following reasons, we affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Curtis Byrd, Jr., Memphis, Tennessee, pro se

Jason S. Mangrum, Brentwood, Tennessee, for the appellee, Deutsche Bank National Trust
Co.
                                     MEMORANDUM OPINION 1

                                I.   F ACTS & P ROCEDURAL H ISTORY

       On May 30, 2006, R.D. Aldridge executed a deed of trust securing repayment of a
$62,400 note. The debt was secured by a lien on the real property known as 1965 South
Parkway, Memphis, Tennessee. Mr. Aldridge subsequently defaulted in his payments under
the note. On October 15, 2008, a letter was sent to Mr. Aldridge at the South Parkway
address, advising him that he was in default and that the debt had been accelerated. On
October 21, 2008, another letter was sent to Mr. Aldridge at the South Parkway address,
stating that the property was scheduled to be sold at a foreclosure sale on November 21,
2008. Another letter was sent on October 21, 2008, addressed to “Tenants of 1965 South
Parkway East,” which purported to advise the tenants that the property was scheduled to be
sold at a foreclosure sale. Deutsche Bank National Trust Company (“the Bank”)
subsequently purchased the property at the foreclosure sale on November 21, 2008.

        On May 27, 2009, the Bank filed a detainer warrant in Shelby County General
Sessions Court against “R.D. Aldridge or Current Occupants,” alleging that the Bank claimed
the right of possession of the South Parkway property and that the “defendant(s) unlawfully
detain same.” On June 22, 2009, Curtis L. Byrd, Jr. filed a motion to dismiss, which alleged
the following:

        1.        Movant is the occupant of the house in question, and is a holdover
                  tenant from a foreclosure brought about by a mortgage debt owed by
                  RD Aldridge. The mortgage documents make Byrd a tenant at will[.]
        2.        According to Tennessee law, TCA 66-28-512(b)2 , . . . a tenant at will
                  must be given 30 days notice to vacate before eviction proceedings can
                  begin and specify the periodic rental date in that notice.
        3.        Movant has not received any notice or request to vacate as of today[.]


        1
            Rule 10 of the Rules of the Court of Appeals of Tennessee states:

        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 section cited by Mr. Byrd, Tenn. Code Ann. § 66-28-512(b), provides that a “landlord or the
tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty (30) days
prior to the periodic rental date specified in the notice.”

                                                     -2-
Mr. Byrd attached to his motion to dismiss a single page from a “Tennessee–Single Family
– Fannie Mae/Freddie Mac Uniform Instrument,” apparently initialed by Mr. Aldridge, which
provided:

        Borrower and Lender further covenant and agree as follows:
        ....
        . . . If the Property is sold pursuant to this Section 22, Borrower, or any person
        holding possession of the Property through Borrower, shall immediately
        surrender possession of the Property to the purchaser at the sale. If possession
        is not surrendered, Borrower or such person shall be a tenant at will of the
        purchaser and hereby agrees to pay the purchaser the reasonable rental value
        of the Property after sale.

Mr. Byrd also attached an affidavit in which he stated that he had resided at the South
Parkway property since November 2008 and that he was currently paying rent of $500 per
month to Mr. Aldridge “of Las Vegas, NV.” Mr. Byrd further stated that he had not been
contacted by the Bank regarding his status as occupant of the house, and he said he had not
received any written notice to vacate the property or terminate his tenancy. The affidavit
stated, “The first I learned of any foreclosure was upon serving of a suit for possession upon
RD Aldridge at the house in question in June 2008.” 3

        On July 20, 2009, the General Sessions Court entered a judgment in favor of the Bank,
awarding it possession of the South Parkway property. Mr. Byrd then appealed to Circuit
Court. Following a hearing, of which we have no transcript, the Circuit Court entered an
order in favor of the Bank. The Court’s order stated that Mr. Byrd was a tenant of Mr.
Aldridge who was living in the South Parkway property when it was purchased by the Bank
at the foreclosure sale, and that Mr. Byrd continued to occupy the property. The Court found
that the foreclosure sale was validly conducted and that Mr. Byrd had been served with the
general sessions detainer warrant. It then found that “by virtue of the proper notification of
the foreclosure sale by the substitute trustee and service of the General Sessions Court of
Shelby County Detainer Warrant . . . Curtis Byrd was provided with sufficient notice
pursuant to the Tenn. Code Ann. § 29-18-1134 and that the Plaintiff, as owner of the real
property, is entitled to a judgment in its favor.” Accordingly, the Circuit Court granted the


        3
            This reference to 2008 was apparently a typographical error, as suit was filed by the Bank in June
2009.
        4
            Tennessee Code Annotated section 29-18-113 provides, “No notice to quit need be given by the
plaintiff to the defendant, other than the service of this warrant.”

                                                      -3-
Bank judgment for possession and remanded the case to the General Sessions Court for
execution of the writ of possession. Mr. Byrd timely filed a notice of appeal.

                                  II.     I SSUES P RESENTED

       Mr. Byrd presents the following issues for review on appeal:

1.     Whether the general sessions court obtained personal jurisdiction over the appellant;
2.     Whether the Bank had a statutory obligation pursuant to Tennessee Code Annotated
       section 66-28-512(b) to give 30 days notice to the appellant before commencing its
       suit for possession in general sessions court.

The Bank argues that this appeal is frivolous such that it should be awarded attorney’s fees.
For the following reasons, we affirm the decision of the circuit court. However, we decline
to award attorney’s fees to the appellee.

                                        III.    D ISCUSSION

                                 A.      Personal Jurisdiction

        Mr. Byrd first argues on appeal that the General Sessions Court never obtained in
personam jurisdiction because the method of service of process utilized in this case was
impermissible under the circumstances. “A court’s lack of personal jurisdiction may be
waived by a defendant; and, one method of waiver is by making a voluntary ‘general
appearance’ before the court in order to defend the suit on the merits, rather than a ‘special
appearance’ for the purpose of contesting personal jurisdiction.” Landers v. Jones, 872
S.W.2d 674, 675 (Tenn. 1994) (citing Dixie Savings Stores, Inc. v. Turner, 767 S.W.2d 408,
410 (Tenn. Ct. App. 1988); Tenn. Dep’t of Human Servs. v. Daniel, 659 S.W.2d 625, 626
(Tenn. Ct. App. 1983)). Because there is nothing in the record to indicate that Mr. Byrd ever
raised the issue of personal jurisdiction in either of the lower courts, he has waived the issue
on appeal.

                                           B.     Notice

        Next, Mr. Byrd argues that he is entitled to relief based upon Tennessee Code
Annotated section 66-28-512(b), which provides, “The landlord or the tenant may terminate
a month-to-month tenancy by a written notice given to the other at least thirty (30) days prior
to the periodic rental date specified in the notice.” Mr. Byrd cites no case law in support of
his position, but he claims that a “plain reading” of the statute demonstrates that it applies
to his “situation.” We disagree. The aforementioned statute addresses periodic month-to-

                                                 -4-
month tenancies. According to the document submitted by Mr. Byrd, he became “a tenant
at will” of the purchaser at the foreclosure sale. Again, we do not have a trial transcript, but
there is nothing in the record before us to indicate that Mr. Byrd’s “situation” involved a
periodic month-to-month tenancy. As such, Tennessee Code Annotated section 66-28-512(b)
is inapplicable, and it does not entitle him to relief. Because Mr. Byrd cites no other
authority and presents no other arguments on appeal, we affirm the decision of the trial court.

                               C.   Attorney’s fees on Appeal

        The Bank contends that Mr. Byrd’s appeal was frivolous and that it should be awarded
its attorney’s fees on appeal. The Bank points out that Mr. Byrd cited no cases in support of
his position on appeal. However, the Bank did not cite any cases in its brief either. The
decision to award damages for the filing of a frivolous appeal rests solely in the discretion
of this Court. Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006) (citing
Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985)). In this case, we find it
equitable to decline to award attorney’s fees on appeal.

                                     IV.   C ONCLUSION

       For the aforementioned reasons, we affirm the decision of the circuit court. We also
decline to award attorney’s fees to the appellee. Costs of this appeal are taxed to the
appellant, Curtis L. Byrd, Jr. for which execution may issue if necessary.

                                                    _________________________________
                                                    ALAN E. HIGHERS, P.J., W.S.




                                              -5-
