### IN THE CO URT OF APPEALS OF TE NNE SS EE AT KNOX VILLE Ass ig ne d o n B rie fs , Nov em be r 2, 2 00 9

R&F ENTERPRISE S, INC., v. MI KE PENNY, d/ b/ a I NTEG RATED

ELE CTRICAL CO NCEPTS, I NC.

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C a r o l M

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, C h a t t a n o o g a , T e n n e s s e e , f o r t h e a p p e l l e e , R & F E n t e r p r i s e s , I n c

.

O P I N I O N

Plaintiff filed this action in Gene ral Sessions Court ag ainst defe ndant, asser ting that the defe ndant had been possessing proper ty belong ing to plaintiff on an oral lease
, and owed unpaid rent of $36,000.00. The summons re flec ts tha t it was serve d on defe ndant, and that a defa ult judg mentwas enter ed for plaintiff for $36,000.00. Approxim ately one month later, defe ndant filed a Motion

to Set Aside J udg ment and Motion to Stay the Writ of Possession, aver ring that defe ndant rec eived

no prior notice of the hear ing, and rec eived no notice that a judgme nt and wr it of possession had been e ntere d. Def endant attache d an Affida vit of his attorney , wher ein she stated that she was defe ndant’s attorney , and that an initial hear ing was held on J uly 14, 2008, at which time counsel for both parties
met and discussed settlement options. The attorney stated that it was ag ree d at the time to work on

a settlement, and that defe ndant would send plaintiff a buy -out. The attorney stated that a buy -out

was sent to plaintiff’s counsel on J uly 21, 2008, and that she did not rec eive any notice that a hear ing had been rese t there afte r, no r t h at judgme nt was enter ed until she called the court on Aug ust 25, 2 0 0 8. Def

endant attache d a copy of the letter sent to plaintiff’s counsel on J uly 21, 2008, with a proposal of $221,278.76 f or being boug ht out.

The Sessions Court entered an Orde r Setting Aside J udg ment and Dissolving the Writ of Possession. Def

endant then filed a counter claim, seeking damag es of $116,913.47. A hear ing was held on September

8, 2008, and judgme nt w as enter ed for plaintiff for pa st due rent in the a mount of $25,200.00, plaint i ff wa s g rante d possession of the proper ty , and no relief was g rante d on defe ndant’s counte rcla im. Defe ndant then appe aled to Circuit Court.

I n Circuit Court plaintiff filed a Motion to Dismiss or in the Alterna tive, to Set Case for Trial. Plaintiff also filed an Affida vit of Bill Pemerton, who stated that he was plaintiff’s counsel, and that
at the hear ing on J uly 14, 2008, the parties met and at t empt ed to neg otiate a resolution, and defe ndant ag ree d to produce a buy out proposal on or befor e J uly 18, 2008. The aff idavit stated that the hear ing was continued to J ul y 2 8
, 2 0 0 8
, at that time. Pemerton further stated that he did not

rec eive a ny proposal bef

ore the J uly

18 deadline, so he prepa

red f or the July

28 hear ing.

Plaintiff att ac h ed a copy of the docket for J uly 28 showing the case was schedule d, and showing that the docket sheet was rele ased on J uly 25. A court printout was also attache d showing an entry on J uly 14 which states the he aring was continued until J uly 28. Plaintiff also attache d a copy of the letter rec eived from defe ndant’s counsel with the buy out proposal, which is dated J uly 21, 2008.

The Trial Court enter ed an Orde r g ranting plaintiff’s motion to dismiss
, and the Court found that pursuant to Tenn. Code Ann. § 16-15-727, the Gene ral Sessions Court can relieve a party from

a final judgme nt in acc ordanc e with Rule 60, but the motion seeking such relief must be filed within
ten day s of the judgme nt. The Court further ruled that the Gene ral Sessions Court had no authority
to hear defe ndant’s motion in this case , as it was not filed within ten day s of the judgme nt, and that the J uly 28 judgme nt was final, a nd rema nded the c ase f

or execution on that judg ment.

Def endant ha s appea led to this Court, raising the issue of whe ther the Tr ial Court properly set aside the G ener al Sessions Court’s judgment g ranting relief from its ear lier def

ault judgme nt?

Gene ral Sessio n s Co u

r ts are cre ature s of statute and their authority is derive d there from; thus,

-2-the proce dures set forth in the statutes g overning the Gene ral Sessions Courts must be followed as

written. See, e.g. , J.W

. Gibson Co. v. Eagle Instruments, Inc.
, 1999 WL 552879 (Tenn. Ct. App. J uly 28, 1999). Prior to 2007, the Gene ral Sessions Courts could only corr ect cler ical mistakes in judgme nts, but had no power to set a prior judgme nt aside. Tenn. Code Ann. §16-15-727. Also see, Jack son E n er g y Authority v. Diamond
, 181 S.W .3d 735 (Tenn. Ct. App. 2005); Richardson v. Methodist Healthcare Mem phis
, 2005 WL 1541868 (Tenn. Ct. App. J une 30, 2005); and Caldwell

v. W o o d

, 2 0 0 4 WL 370299 (Tenn. Ct. App. Fe b. 27, 2004). Tenn. Code Ann. §16-15-727 was amende d in 2007, and the Gene ral Sessions Courts can now set a prior judgme nt aside in acc ordanc e with Tenn. R. Civ. P. 60.02. Ho we v er , a mot ion seeking such relief m ust be filed within 10 day s from the da te of the judg ment.

I n this case , defe ndant’s motion seeking to set the Gene ral Sessions defa ult judgme nt aside

was not filed within 10 day s of the judgme n t

. Def endant' s arg ument is that this is somehow excusable beca

use no notice of the hear ing was sent, but de fenda nt ha d notice that the lawsuit was pending
, had appea

red for one hear ing, and had soug ht a continuance to pursue settlement, and then failed to appea

r for the later hear ing afte r sending an offe r of settlement. Def endant obviously knew of the J uly 28 hear ing date, and did not re fute knowledg e of same, and cannot now claim a lack of notice.

Assuming arguendo defe ndant' s arg ument has merit, which we do not conce de, the Gene ral Sessions Court was without authority to set aside the J udg ment as found by the Trial Court, beca use the Motion for Relea se wa s not filed within the statutory period. Te nn. Code Ann. §16-15- 727. 1

The J udg ment of the Trial Court is aff irmed and the cause rema nded, with the cost of the
appea l assessed to Mike Penny

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ H E R S C H E L P I C K E N S F R A N K S
, P

. J

.

Def end ant al so ar gues tha t the Cir cui t Cour t cou ld not "go beh ind " the Sessions Court judgme nt 1 and reinstate the ear lier defa ult judgme nt. Th is arg

ument is without merit, beca use ear lier case s demonstrate wher e the Sessions Court acte d without jurisdiction, and the Circuit Court could reinstate the ear lier Judgment in Sessions Court. See Jack son , Richardson , and Caldwell

.
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