### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE FEBRUARY 12,

2001 Session
VESTA G. MOSLEY v. TENNESSEE WATER SERVICE AND SALES, INC.
Appeal from the Circuit Court for Anderson County No. 99LA0370 James B. Scott, Jr., Judge FILED MARCH 26, 2001

No. E2000-01713-COA-R3-CV

In this appeal from the Ci rcuit Court of Anderson County the Defendant/Appellant, Tennessee Water Service and

Sales, Inc., a ppeals the C ircuit Cou rt's order which denied Tennessee Water's motion for a new trial and overruled its objection to entry of a final judgment in favor of Plaintiff/ Appellee, Vesta G. Mosley. It is our finding that Tennessee Water did not receive notice of the hearing which resulted in the final judgment against it and, therefore, we vacate such judgment and re verse the Circuit Court's order overruling Tennessee Water's objection to entry of the judgment and its motion for a new trial. We remand this cause for further proceedings consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and Order

of the Circuit Court Reversed; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined.

James R. Moore, Knoxville, Tennessee, for the Appellant, Tennessee Water Service and Sales, Inc.

Dai l R. Can tre ll, Kno xvi lle , Te nne sse e, fo r th e Ap pel lee , Ve sta G. M osl ey.
OPINION

In th is appeal from the Circuit Court for Anderson County the Appellant/Defendant , Tennessee Water Service and Sales, In c.(hereinafte r ‘Tennessee Wa

ter’), present

s the followin

g issu e which we restate: Did the Circuit Court err in overruling Tennessee Water’s objection to entry of the Court’s final judgment of December 20, 1999 and in denying Tennessee Water’ s motion for a new trial?

This case originated in the General Sessions Court of Anderson County on March 15, 1999, when Appellee/Plaintiff, Vesta G. M osl ey, caused a civil warrant to be issued alleging that Tennessee Water

was guilty of fraud, misrepresentation, deceit, violation of the Ten nessee Consume

r1 We ass ume the Cir cuit Court wa s referring to the a ppeal bo nd filed in the G eneral Sessio ns Court.
-2- Protection Act, breach of c ontract, mutual mistake involving a term of contract, violation of the Fair Credit Billing Act and, in the alternative, negligence. All of these allegations were r elated to t h e installation of a water softener in Ms. Mosley’s residence by Tennessee Water.

The case came on for hearing before the General Sessions Court on August 30, 1999, and on August 31, 1999, the Session

s Court entered its

Opinion which awarded Ms. Mosley damages in the amount of $425.00 against Tennessee Water.

On September 10, 1999, Ms. Mosley filed an appeal bond in the General Sessions Court and
on November 29, 1999 , her case was tr ied on appeal bef

ore the Anderson

County Cir

cuit C ourt which found that the damage award against Tennessee Water should be increa sed to $7,500.00. Although the Circuit Court’s final judgment entered on December 20, 1999, pursuant to its findings on November 29, 1999, does not reflect that eit

her party was absent from the trial on that d ate, James R. Moore, attorney for Tennessee Water, contends that neither he nor his client was pre sent at t he t ria l. O n De cem ber 9 , 19 99, Ten nes see W ate r fi led an O bje cti on t o En try of Fina l Judgment and Motion For Ne w Trial along wit

h Mr. Moore’s aff

idavit which state

s that the fi rst notice he received of the trial was a letter from Ms. Mosley’s attorne y dated December 7, 1999.

After a hearing on De

cember 13, 1999, t

he Circuit Court entered an order on January 24, 2000 dis all owi ng Te nne sse e Wa ter ’s O bje cti on t o En try of Final Judgment and Motion for New Trial. The order recites that the Court reached its decision upon argument of counsel, review of the record, and “specifically upon review of the Notice of Appeal 1 and trial date se

nt to counsel for the Defe ndant b y the Clerk of the Anderson County Circuit Court on or about September14, 1999.” Thereafter, Tennessee Water filed a motion requesting that the Circuit Court amend or make additional findings with respect to payment of the damages awa rded to Ms. Mosley. This motion was denied by orders of the Court entered on June 5, 2000 and on June 26, 2000.

On July 3, 2000, Tennessee Water filed a Notice of Appeal with respect to the final judgment entered on December 20, 1999, the order overruling the objection to entry of the final judgment and denying the motion for new trial entered on January 24, 2000, and the order entered June 5, 2000, denying th

e motion to amend or

make additional f

indings. Although in its brief Tennessee Water asserts Tenn.R.Civ.P. 60 as a basis for relief from the final judgment of

the Circuit Court, in fact, Rule 60 is only appropriate when a final judgment has already been entered. A

t the time Tennesse

e Wate r filed i ts Objection to Entry of Final Judgment and Motion for New Tri al on December 9 ,1999, the Cir cuit Co urt had not yet entered a final judgment with respect to the

trial of November

29, 1999. Accordi

ngly, we w

ill tr ea t Tennessee Water's Objection to Entry of Final Judgment and Motion for New Trial as a motion for new trial under Rule 59 which applies to judgments which have not yet become final and

provides relief from2 The Circuit Court 's order reci

ted "upon review of the record in this cause and s pecifi cally upon the re

view of the notice of appeal and the tria l date sent to counsel for the Defenda nt by the Clerk of the Ande rson Cou nty Circuit Court on or about S eptembe r 14, 199 9."
-3- such judgments due to mistake, inadvertence, surprise, or excusable neglect. See Cam pbell V. Archer, 555 S.W.2d 110 (Tenn. 1977).

The granting or refusal of a new trial under Rule 59 rests largely in the

discretion of the trial judge. See Seay v. City of Knoxville, 654 S.W.2d 397 (Tenn. Ct. App. 1983). Therefore, the scope of our review in this matter is limited to whether the Circuit Court abuse d its discretion in denying Tennessee Water's motion for a new trial. See Esstman v. Boyd, 605 S.W.2d 237 (Tenn. Ct. App.1979).

The record filed for

our consideratio

n is composed of ple

adings, orders and other

documents filed with the Circuit Court of Anderson County. The record contains no transcript or statement of evidence or pro

ceedings.

As stated, the Circuit Court found tha t notic e of the trial on November 29, 1999, was sent to Tennessee Water

's attorney

on Se ptember 14, 1 999. And, the law in this state provides

that a mailing is complet

e upon its deposit with the United States Postal Service. See Card v. Tennessee Civil Service Comm'n, 981 S.W.2d 665 (Tenn. Ct. App. 1998). Nevertheless, we find that the Circuit Court erred in refusing to grant Tennessee Water a new trial under Rule 59 beca use it is our conclusion that Mr. Moore, and therefore Tennessee Water, did not, in fact, receive n otice o f the trial of November

29, 1999. Our decision

is based upon the te

stimony of Mr.

Moore in his affid

avit that he did not receive

notice in juxtapositio

n with the facts in Vines v. Gibson , an unpublished opinion of this court which was filed in Knoxville on February 27, 2001.

The Vines case

was also an appeal from an order of the Circ

uit Court of Anders

on County which denied a defendant's motion to set aside an order and grant a new trial under Rule 59. The defendant's attorney in Vines asserted that he had not received notice of a trial which was conducted in his absence on August 27, 1999, and which resulted in a judgment against his client. Based upon
our review of the record in Vines it was our finding that t he defendant in th

at case had not, in

fact, received notice

of the trial. It is a basic requirement

of due process th

at parties in litig

ation receive no

tice of hearing

s. Se e Br yant v. Edwards, 707 S.W.2d 868 (Tenn. 1986). In our view, that requirement was not fulfilled in this case.

In reaching our

determination we have not overlooked Ms. Mosley's insistence that, as to the Circuit Court's ruling on a motion for a new trial, the findin gs of fact made by it are deemed to be supported by the evidence presented in the absence of a tra nscript of the hearing. However, in the case at bar it does not appear that any evidence wa s heard. 2-4-

In conclusion , we are inclined to believe that the default judgment was not valid in that the provisions of Tenn.R.Civ.P. 55.01, relative to notice to the adverse party, were not complied with
as the record does not disclose any motion for

default j udgment o

r notice t o Tenness ee Water. We recogni ze that t his is an appe al from the General Sessions Court. However, because the Rules of Civil Procedure when pertinent apply to such an appeal, we know of

no reason that the provisions of Rule 55.01 should not also apply. Vinson v. Mills , 530 S.W.2 d 761 (Tenn. 1975); Ware v. Meharry Medical College , 898 S.W.2d 181 (Tenn. 1995).

For the foregoingreasons the judgment of the Circuit Court entered on December 20, 1999 is vacated and the order of the Circuit Court entered on January 24, 2000 is reversed. The cause is remanded for further proceedings consistent with t his opinion. Exercisin

g our discret ion, we adj udge the costs of this appeal against Tennessee Water.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE