IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 26, 2017 Session

KNOX COUNTY, TENNESSEE ET AL. V. DELINQUENT TAXPAYERS 

ET AL.

Appeal from the Chancery Court for Knox County

No. 187088-1 John F. Weaver, Chancellor

No. E2016-01750-COA-R3-CV

This case involves an attempt by Omer G. Kennedy and Angela Helms (landowners) to 

exercise their right of redemption with respect to their property sold at a delinquent tax 

sale. Jon Johnson (tax sale purchaser) bought the property on January 13, 2015. Within 

the one-year redemption period, landowners paid $37,892.81, the amount they thought 

was required to redeem the property. Tax sale purchaser filed a motion for additional 

funds, consisting of payments he had made for insurance on the property and interest, 

under Tenn. Code Ann. § 67-5-2701 (Supp. 2016). The trial court granted the motion in 

an order entered January 11, 2016. The order gave landowners 30 days to pay the 

additional amount. Because notice of the order was not sent to their last known address, 

landowners did not receive the notice until after the 30 days had passed. They paid the 

additional amount of $5,869.43 on February 18, 2016. Tax sale purchaser moved the 

court to deny the redemption, arguing that the payment was not timely. The trial court 

denied the motion, holding that its order of January 11, 2016, was void because it was not 

effectively entered under Tenn. R. Civ. P. 58. and not effectively served under Tenn. R. 

Civ. P. 5. Alternatively, the trial court ruled that landowners were entitled to relief for 

excusable neglect under Tenn. R. Civ. P. 60. Tax sale purchaser appeals. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Sheila B. Stevenson, Nashville, Tennessee, for appellant, Jon Johnson. 

Albert J. Harb, Knoxville, Tennessee, for appellees, Omer G. Kennedy and Angela 

Helms. 

06/13/2017
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OPINION

I.

The property is a three-acre tract located at 2720 Thorngrove Pike, in an industrial 

area of East Knoxville. Landowners use the property to run their business, Metro Trailer 

Repair. Their daughter and business manager, Melissa Kennedy, testified that, although 

there is a mailbox at the property, they use a P.O. Box exclusively for their business 

operations, and had done so for at least 21 years. She said that the mailbox at 2720 

Thorngrove Pike had been frequently vandalized and that the only mail that arrived there 

consisted of advertisements and other junk mail. 

This case was initiated on March 10, 2014, when Knox County filed a complaint 

for collection of delinquent property taxes. The property was among those listed as 

subject to a tax lien for delinquent payment of taxes. Attached to the complaint was an

exhibit, which contained, among other things, a description of the property. There are 

two mailing addresses of record listed: P.O. Box 6702 in Knoxville, and 3835 Admiralty 

Lane, also in Knoxville. The record reflects that Knox County sent tax notices regarding 

the property to P.O. Box 6702. 

The tax sale took place on January 13, 2015. The trial court entered an order on 

February 13, 2015 confirming the sale and vesting the property in the tax sale purchaser, 

subject to the one-year right of redemption. On November 2, 2015, landowners filed a 

motion to redeem the property. They paid into court the purchase price of the tax sale 

plus interest, an amount totaling $37,892.81. Tax sale purchaser filed a motion for 

additional funds, pursuant to Tenn. Code Ann. § 67-5-2701, which at that time had been 

recently amended1to provide, in pertinent part, as follows:

(d) The purchaser may within thirty (30) days after the 

mailing of the notice of redemption, file a response seeking 

additional funds to be paid by the proposed redeemer to 

compensate the purchaser for amounts expended by the 

purchaser for the purposes set out in subsection (e). . . . If no 

response is timely filed, the court shall determine whether the 

redemption has been properly made, and if so, shall cause an 

order to be entered requiring the proposed redeemer to pay 

additional interest at the rate set forth in subsection (b), 

 

1

The amendment, which became effective July 1, 2014, rewrote section 2701 to provide, 

among other things, for a higher interest rate. See 2014 Tenn. Pub. Acts Ch. 883.
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accruing from the date the motion to redeem was filed until 

the date of such payment.

(e) Additional sums to be paid by the proposed redeemer at 

the demand of the purchaser, shall include the following:

* * *

(2) Reasonable payments made by the purchaser for insurance 

on the parcel and any improvements thereon;

* * *

and

(6) Additional interest at the rate set out in subsection (b), 

accruing from the date the motion to redeem was filed until 

the date the purchaser’s response was filed. 

Tax sale purchaser sought additional interest and reimbursement for the cost of insurance 

on the property. A hearing took place on December 10, 2015. The business manager, 

Kennedy, was present as a non-attorney representative of landowners. The trial court 

granted tax sale purchaser’s motion for additional funds. Kennedy testified that at the 

conclusion of the hearing, she requested the attorney for tax sale purchaser, and the trial 

court clerk, to mail a copy of the trial court’s order to the landowners’ address of record 

at P.O. Box 6702. 

On January 11, 2016, the trial court entered the order of redemption requiring 

landowners to pay an additional $5,869.81 to complete their redemption of the property. 

The order provided that “[i]f the funds are not paid to the Clerk and Master within thirty 

(30) days of entry of this Order, the Motion to Redeem shall be denied,” citing the time 

limitations mandated by Tenn. Code Ann. § 67-5-2701(f)-(h). The certificate of service 

states that counsel for tax sale purchaser mailed a copy of the order to 2720 Thorngrove 

Pike, the property address. On February 17, 2016, some thirty-seven days after the entry 

of the order of January 11, 2016, the trial court clerk, Becky Perry, called Kennedy. 

According to Kennedy’s affidavit, Perry called to tell her “that the time had expired to 

pay the additional amounts, but we should get the money down to the court as quickly as 

possible.” The next day, landowners tendered a cashier’s check in the amount of 

$5,869.81 to Perry, which she accepted. 
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On February 18, 2016, tax sale purchaser filed a “motion to deny redemption by 

taxpayers,” arguing that the payments were not timely filed, thereby, in effect, voiding

the redemption. Landowners opposed the motion on the ground that they did not receive 

notice of the trial court’s January 11, 2016, order until after the 30 days had passed. The 

trial court held a hearing on July 12, 2016, at which Kennedy and Perry testified. Perry 

stated that she remembered a request on landowners’ behalf to mail a copy of the order to 

their P.O. Box, but she could not remember the address to which she actually mailed the 

copy. The trial court found that P.O. Box 6702 was “not just the last known address. It’s 

the first known address. It’s in the complaint.” The court further noted landowners’ 

evidence that they requested the order be sent to the P.O. Box. This evidence was

unrebutted. In its final judgment entered August 5, 2016, the trial court ruled as follows:

The order of this Court dated January 11, 2016 was not 

effectively served under Rule 5 of the Tennessee Rules of 

Civil Procedure and not effectively entered under Rule 58 of

the Tennessee Rules of Civil Procedure.

Pursuant to Rule 60, [landowners] are entitled to relief from 

the order dated January 11, 2016 and the order of January 11, 

2016 is hereby set aside and that said order is void.

A new order shall be submitted to the Court for entry as to the 

hearing held on December 10, 2015. The order shall reflect 

that the property owners, Omer G. Kennedy and Angela 

Helms, have paid the sum of $5,869.43 in satisfaction of the 

tax sale purchaser’s additional funds necessary for 

redemption.

(Numbering in original omitted.) Tax sale purchaser timely filed a notice of appeal.

II.

The issue presented is whether the trial court erred in setting aside and voiding its 

January 11, 2016, order because it was not effectively served under Tenn. R. Civ. P. 5 

and not effectively entered under Tenn. R. Civ. P. 58.

III.

When, as here, the trial court sits without a jury, we review the trial court’s 

findings of fact in the record with a presumption of correctness, and we will not overturn 

those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 
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13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review a trial 

court’s conclusions of law under a de novo standard with no presumption of correctness 

attaching to the trial court’s legal conclusions. Campbell v. Florida Steel Corp., 919 

S.W.2d 26, 35 (Tenn. 1996); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 

(Tenn. 1993).

IV.

Tenn. R. Civ. P 58 contains the following prerequisites for the entry of a judgment 

to be effective:

Entry of a judgment or an order of final disposition is 

effective when a judgment containing one of the following is 

marked on the face by the clerk as filed for entry:

(1) the signatures of the judge and all parties or counsel, or

(2) the signatures of the judge and one party or counsel with a 

certificate of counsel that a copy of the proposed order has 

been served on all other parties or counsel, or

(3) the signature of the judge and a certificate of the clerk that 

a copy has been served on all other parties or counsel.

. . . When requested by counsel or pro se parties, the clerk 

shall forthwith mail or deliver a copy of the entered judgment 

to all parties or counsel. If the clerk fails to forthwith mail or 

deliver, a party prejudiced by that failure may seek relief 

under Rule 60.

Rule 5.02(1) provides, as pertinent to this action, that “[s]ervice upon the attorney or 

upon a party shall be made by delivering to him or her a copy of the document to be 

served, or by mailing it to such person’s last known address.” 

At the end of the hearing, the trial court found and held in pertinent part as 

follows:

There was evidence in the case that the property owners’

daughter requested that this Court’s Clerk use the address that 

is the same address from the beginning of the case on the Tax 

Sale Complaint. [T]he Clerk was requested to use the . . . 

property owners’ post office box address, and the reasoning 
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was that they were having trouble getting their mail and they 

were having trouble with vandalism of the mailbox at the 

property address.

There was also evidence that the daughter requested the tax 

purchaser’s attorney to use the post office address, and there 

was no rebuttal of that testimony. The Tax Sale Complaint in 

this case, as I previously mentioned, uses the post office

address, and the tax statements that the County sent out for 

the taxes use the post office address. . . .

We don’t know whether the Clerk in the case used the 

property address or the post office address, except we do have 

the evidence it was not received. The tax purchaser’s 

attorney mailed the Order setting the excess amount to . . . the 

property address, not to the post office address. The evidence 

is unrebutted that the Order was not received, that no copy of 

the Order was received.

This Court is of the opinion that the Order of January 11, 

2016, was not effectively served under [Rule] 5 and not 

effectively entered under [Rule] 58. The Court is also of the

opinion that, under Rule 60, that . . . the property owners 

would be entitled to relief from the Order and to have the 

Order set aside based on excusable neglect, that the Order 

was void, and/or for other reasons justifying release from the

operation of the Order, being that the Order was simply not 

received by the property owners and was not sent by the 

purchaser’s attorney to the address requested and was sent to 

an address where the property owners, through their daughter, 

had given notice to the tax purchaser’s attorney and to the 

Clerk of the Court that the Order might not be received, to 

send it to the post office address.

The evidence in the record does not preponderate against the trial court’s findings that a 

copy of the order was not sent to the landowners’ last known address, and that they did 

not receive a copy of the order until after their deadline had passed. Thus, the attempted 

service did not comport with Rule 5.02 or Rule 58.

Rule 60.02 provides a party relief “from a final judgment, order or proceeding” for 

reasons including “mistake, inadvertence, surprise or excusable neglect” and when “the 
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judgment is void.” The Supreme Court has stated that “[i]n reviewing a trial court’s 

decision to grant or deny relief pursuant to Rule 60.02, we give great deference to the 

trial court.” Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003). Consequently, an 

appellate court “will not set aside the trial court’s ruling unless the trial court has abused 

its discretion.” Id.; Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). In 

situations where a party has been denied notice of a critical proceeding, resulting in a 

judgment against the party without having had an opportunity to be heard on the matter, 

Tennessee appellate courts have frequently granted Rule 60.02 relief. See, e.g., Henry, 

104 S.W.3d at 480 (“When a party has no notice of a critical step in a court proceeding, 

the circumstances may make out a case of excusable neglect.”), citing Tenn. Dep’t of 

Human Servs. v. Barbee, 689 S.W.2d 863, 868 (Tenn. 1985) and Jerkins v. McKinney, 

533 S.W.2d 275, 281 (Tenn. 1976); Obi v. Obi, No. M2010-00485-COA-R3-CV, 2011

WL 2150733, at *6 (Tenn. Ct. App., filed June 1, 2011), and cases cited therein. In such 

cases, which have frequently involved a default judgment, we have noted the potential 

due process implications in allowing such a judgment to stand. Obi, 2011 WL 2150733, 

at *6. The Supreme Court has recently observed that “[d]ue process protections clearly 

apply when the State seeks to sell a taxpayer’s real property in satisfaction of a tax 

obligation.” Mortgage Elec. Reg. Sys., Inc. v. Ditto, 488 S.W.3d 265, 280 (Tenn. 2015). 

At the hearing on tax sale purchaser’s motion to deny the redemption, the trial 

court asked his attorney whether Rule 60 was applicable, as argued by landowners, and 

counsel replied, “I think Rule 60 always applies if the Court finds that there is a mistake 

or inadvertence not the fault of the property owner.” To the extent that Rule 60 is 

applicable under these circumstances, we find no abuse of discretion in the trial court’s 

decision. It is not clear that the January 11, 2016, order that the court voided and set 

aside was a final judgment. “A final judgment is one that resolves all the issues in the 

case, leaving nothing else for the trial court to do.” In re Estate of Henderson, 121 

S.W.3d 643, 645 (Tenn. 2003), quoting State ex rel. McAllister v. Goode, 968 S.W.2d 

834, 840 (Tenn. Ct. App. 1997) (internal quotation marks omitted). “In contrast, an order 

that adjudicates fewer than all of the claims, rights, or liabilities of all the parties is not 

final, but is subject to revision any time before the entry of a final judgment.” Id., citing 

Tenn. R. App. P. 3(a). In this case, the final outcome of the action was contingent upon 

the landowners’ timely compliance with the trial court’s order to pay additional funds. 

The issue of whether the redemption would be successful remained unresolved after the 

entry of the January 11 order. Moreover, the trial court heard, considered, and resolved 

tax sale purchaser’s motion to deny the redemption, after more than 30 days had elapsed 

from the January 11 order. We have observed several times that “under the rationale for 

Rule 58, a judgment which is not actually served on a party within a reasonable time after 

it has been filed, even though it contains a certificate of service, is not a final appealable 

judgment.” Masters ex rel Masters v. Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App. 

1992); accord Grantham v. Tenn. State Bd. of Equalization, 794 S.W.2d 751, 752 
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(Tenn. Ct. App. 1990); Citizens Bank of Blount Cnty. v. Myers, No. 03A01-9111-CH422, 1992 WL 60883, at *3 (Tenn. Ct. App., filed Mar. 30, 1992). The Supreme Court 

has held that “[t]he failure to adhere to the requirements set forth in Rule 58 prevents a 

court’s order or judgment from becoming effective.” Blackburn v. Blackburn, 270 

S.W.3d 42, 49 (Tenn. 2008). 

Consequently, we believe that the trial court correctly acted, and we affirm its 

decision,2under the well-established principle that “Courts have always had the authority 

to modify, alter, amend or revoke judgments and decrees before they become final.” 

Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976); see also Newport Housing 

Auth. v. Hartsell, 533 S.W.2d 317, 320 (Tenn. Ct. App. 1975); In re Taylor B.W., 397 

S.W.3d 105, 112 (Tenn. 2013); Acosta v. Acosta, 499 S.W.3d 785, 789 (Tenn. Ct. App. 

2016). The trial court acted within its authority and discretion in deciding to set aside as 

void its order entered January 11, 2016, on grounds that it “was not effectively served 

under Rule 5 of the Tennessee Rules of Civil Procedure and not effectively entered under 

Rule 58 of the Tennessee Rules of Civil Procedure.” 

V.

The judgment of the trial court is affirmed. Costs on appeal are assessed to the 

appellant, Jon Johnson. The case is remanded for enforcement of the trial court’s 

judgment and for collection of costs assessed below.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

 

2

The trial court was advised by both sides of this litigation that Rule 60 applies to this 

case. That rule is implicated when one is attempting to challenge a final order. It is not at all 

clear that there was a final order when the tax sale purchaser filed his motion to deny 

redemption. Whether that rule applies or not, it is clear, under Rules 58 and 5 of the Rules of

Civil Procedure, that the trial court reached the correct result in this case.