IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 7, 2010 Session

ELMWOOD APARTMENTS v. JESSICA WOODSON, ET AL.

Appeal from the Circuit Court for Maury County

No. 2009-CV-13112 Stella L. Hargrove, Judge

No. M2010-00968-COA-R3-CV - Filed April 19, 2011

This appeal arises out of a detainer action originally filed in general sessions court in

which landlord of apartment was awarded possession of leased premises. Tenants filed a

petition for writs of certiorari and supersedeas for de novo review to the circuit court,

accompanied by an affidavit of indigency; the writs were issued. Landlord subsequently

sought dismissal of both writs on several grounds. The court granted the motion, finding that

the writ of supersedeas was improperly granted and, as a consequence, review by certiorari

was not available as a substitute for appeal. Finding that the court erred in considering

grounds for dismissal which were added by landlord within five days of the hearing on the

motion, we reverse the judgment and remand for further proceedings.

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

Case Remanded

RICHARD H. DINKINS,J., delivered the opinion of the court, in which PATRICIA J. COTTRELL,

P. J., M. S., and FRANK G. CLEMENT, JR., J., joined.

Joshua A. Decker, Columbia, Tennessee, for the appellant, Jessica Woodson.

No appearance for appellee, Elmwood Apartments.

OPINION

Jessica Woodson and David Tucker (“Defendants”) were tenants of the Elmwood

Apartments (“Plaintiff”), an apartment complex in Mount Pleasant, Tennessee. On April 9,

2009, plaintiff notified defendants by letter that it intended to terminate their lease effective

April 30. As grounds for the eviction, plaintiff wrote that several complaints from other

tenants had been filed about noise and fighting at defendants’ apartment, and that police had

been called to the apartment on several occasions. Plaintiff asserted that such action
constituted material non-compliance with a provision in the lease that required tenants “not

to create loud noises so as to disturb others, or to harass any other tenant’s [sic] or

management or owner of said complex.”

Defendants did not vacate the apartment, and on May 4 plaintiff filed a detainer action

in Maury County General Sessions Courtseeking possession of the property, court costs, and

litigation taxes. A trial was held, and the court entered a judgment on October 7 that awarded

plaintiff possession of the apartment.

Defendants sought review of the general sessions court judgment and, on October 20,

filed a petition for writs of certiorari and supersedeas in Maury County Circuit Court, along

with a Uniform Civil Affidavit of Indigency and an oath attesting that, due to their poverty,

they were unable to prepay the costs of the proceeding. That same day, the court issued a

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fiat allowing defendants to file their petition in forma pauperis, ordering the clerk to issue

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both writs, and staying execution of the general sessions court’s judgment pending further

order of the circuit court.

On November 18, plaintiff filed a motion to dismiss the writs, asserting that the

petition for certiorari and supersedeas failed to set out adequate grounds for their issuance.

Plaintiff contended that defendants “had a remedy at law—an appeal to this Court,” and they

had not timely appealed the judgment of the general sessions court; consequently, because

The oath and affidavit were filed pursuant to Tenn. Code Ann. § 20-12-127 and Tenn. Sup. Ct. R. 1

29. In 1995, the requirements for filing a lawsuit in forma pauperis were modified by the Tennessee

Legislature, which amended Tenn. Code Ann. § 20-12-127 to allow “any civil action” to be commenced

“without giving security as required by law for costs and without the payment of litigation taxes” by filing

an oath of poverty, as set forth in the statute, and by filing an accompanying affidavit of indigency “as

prescribed by court rule.” 1995 Tennessee Laws Pub. Ch. 242 (S.B. 276). On December 29, 1995, the

Tennessee Supreme Court adopted Tenn. Sup. Ct. R. 29, which rule appends a Uniform Civil Affidavit of

Indigency and providesthat the affidavit isto be used in civil cases filed in accordance with Tenn. Code Ann.

§ 20-12-127. 

The court permitted Woodson and Tucker to file their appeal without prepayment of litigation tax

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and did not require them to post bond or give security for rent that would accumulate. Instead, Woodson and

Tucker were required to pay rent as it accumulated each month or “if Elmwood Apartments prefers not to

accept rent, the monthly rent will be paid into an escrow account in the office of the Defendants’ attorney

while this appeal is pending.” 

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defendants had not alleged any reason that prevented them from filing an appeal, review by

certiorari was not available to them. The motion gave notice of hearing for December 14.

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On December 17, Defendants filed an “Answer,” setting forth their defenses to the

detainer action and denying that plaintiff was entitled to possession of the apartment. They

also filed a motion for summary judgment, supported by a statement of material facts and the

affidavit of Mr. Tucker; a hearing on the motion for summary judgment was scheduled for

January 22, 2010. At the January 22 hearing plaintiff asked the court to also consider its

motion to dismiss; the court set a hearing on both motions for Monday, February 1. On

January 26, defendants filed a response in opposition to the motion, in which they asserted

that writs of certiorari and supersedeas were the only way they could obtain a de novo review

while maintaining possession of their home during the proceeding—a procedure they argued

was proper based on Tennessee law. On January 28, plaintiff’s counsel sent a memorandum

of law in support of the motion to dismiss to defendants’ counsel.

At the February 1 hearing, plaintiff asserted three grounds for dismissal: (1)

defendants improperly used the writs of certiorari and supersedeas to bring the case before

the circuit court for de novo review; (2) defendants did not provide adequate notice to

plaintiff of the petition for writ of supersedeas in forma pauperis; and (3) the circuit court

did not have authority to grant the writ of supersedeas in forma pauperis. The first ground

had been stated in the motion filed on November 18, 2009; the second ground was first

asserted in the memorandum in support of the motion which had been served on defense

counsel on January 28, 2010; the third ground was first raised during the February 1 hearing.

Defendants objected to the court’s consideration of the second and third grounds, asserting

that, because plaintiff did not comply with Tenn. R. Civ. P. 6.04 and 22nd Jud. Cir. R. 26.01

and 26.03, those grounds were not properly before the court. Defendants further asserted

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that they were deprived of the right to file a written response to the memorandum sent to their

counsel on January 28 because a snowstorm the next day prevented their attorney from going

to work.

The court overruled defendants’ objections and granted the motion to dismiss. The

court held that defendants did not comply with Tenn. Code Ann. § 27-8-113(b), which

permits a writ of supersedeas to be issued on a pauper’s oath “only on notice to the adverse

party of the application.” The court concluded that “Defendant[s’] faxing of the application

The motion was not heard on December 14 due to a scheduling conflict of defendants’ counsel. 

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This case arose out of Maury County, which is in the 22nd judicial district; accordingly, the local 4

rules of court for the 22nd judicial district apply. 22nd Jud. Cir. R. 1.03.

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to Plaintiff’s counsel, whose office is in a different city from the Courthouse, on the same

morning as they were appearing before the Court to obtain the writ cannot be considered

adequate notice for due process purposes,” and held that the writ of supersedeas was

improperly issued. The court held further that a writ of certiorari not accompanied by a valid

supersedeas could only be utilized as a substitute for appeal where the appeal was prevented

by circumstance beyond the control of the petitioner. Finding that defendants asserted no

such circumstances in their petition, the court also dismissed the writ of certiorari. Because

the motion to dismiss was granted, the court did not rule on defendants’ motion for summary

judgment.

Ms. Woodson appeals the judgment to this court and raises three issues: (1) whether

the trial court erred in considering plaintiff’s objection to the writ of supersedeas in forma

pauperis on grounds of insufficient notice; (2) whether the circuit court erred in its legal

conclusion that defendants did not give sufficient notice to plaintiff of her petition for writ

of supersedeas on a pauper’s oath; and (3) whether the circuit court erred by dismissing the

Petition and Fiat without any motion or evidence that defendants were not paupers. Plaintiff

did not file a brief on appeal or appear at oral argument.

ANALYSIS

Defendants contend that the trial court erred in considering the ground for dismissal

first raised in the memorandum served on their counsel on January 28 in support of the

motion to dismiss. Relying on Tenn. R. Civ. P. 6.04 and 22nd Jud. Cir. R. 26.01, defendants

contend that plaintiff was required to serve the memorandum not later than five days before

the time specified for the hearing. In the alternative, they assert that 22nd Jud. Cir. R. 26.03

required notice of the additional ground at least 48 hours in advance of the hearing.

Tenn. R. Civ. P. 6.04(1) provides that, unless heard ex parte or otherwise provided in

the rules or order of the court, a written motion “shall” be served, along with notice of the

hearing, not later that five days before the motion is expected to be heard. Similarly, 22nd

Jud. Cir. R. 26.01 requires that pre-trial motions “which can be dispositive of one or more

issues on the merits must be filed with notice as provided by [Tenn. R. Civ. P.] a minimum

of five (5) court days before the scheduled hearing for said motions.” 22nd Jud. Cir. R. 26.03

requires that “[e]very motion which may require the resolution of an issue of law and every

motion in which legal authority is relied upon shall be accompanied by a memorandum of

law and facts in support thereof.” Thus, the applicable rules require that motions set forth

the grounds for the relief sought, that they be accompanied by a memorandum, and that the

motion and memorandum be filed at least five days before the hearing on the motion.

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While plaintiff was free to assert additional grounds in support of dismissal,

defendants should have been afforded the opportunity to respond to the additional grounds.

Proper notice of the additional grounds in support of dismissal was to be given by amending

the motion, thereby bringing it into compliance with Tenn. R. Civ. P. 7.02. To keep the

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hearing date of Monday, February 1, therefore, and in compliance with Tenn. R. Civ. P. 6.04

and 22nd Jud. Cir. R. 26.01, the amendment to plaintiff’s motion should have been filed no

later than Monday, January 25, see Tenn. R. Civ. P. 6.01, thereby allowing defendants to file

a timely response in accordance with local rule 26.02.

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The record does not show why the court disregarded the objection of defendants to

the court’s consideration of the ground first asserted in the memorandum, i.e., that defendants

did not provide adequate notice to plaintiff of their petition for writ of supersedeas in forma

pauperis. Inasmuch as this was the issue upon which the court ultimately decided the case,

the failure of the court to afford defendants the opportunity to frame a response to the motion

to dismiss in accordance with and in reliance upon the applicable rules of procedure was

prejudicial error and deprived them of the protection of those rules.

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Our resolution of this issue pretermits consideration of the other issues presented.

 Tenn. R. Civ. P. 7.02(1) provides:

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An application to the court for an order shall be by motion which, unless made during a

hearing or trial, shall be made in writing, shall state with particularity the grounds therefor,

and shall set forth the relief or order sought. 

 Local Rule 26.02 provides: 6

Responses to motions, including counter-affidavits, depositions, briefs, or any other matters

being presented in opposition to motions must be filed and served no later than forty-eight

(48) hours (excluding weekends and holidays) in advance of the hearing on the motion.

Although the defendants do not specifically assign error in this regard, to the extent the trial court 7

considered the third ground of the motion to dismiss, which was first raised in the course of the hearing on

the motion, our analysis is also applicable to the court’s consideration of the third ground.

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CONCLUSION

For the foregoing reasons, the judgment of the Circuit Court for Maury County is

REVERSED; the case is REMANDED for reconsideration of the motion to dismiss. In the

court’s reconsideration, Ms. Woodson should be afforded an opportunity to respond to the

additional grounds asserted by plaintiff to support dismissal of the case.

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___________________________________

RICHARD H. DINKINS, JUDGE

The record does not show that the court considered the ground originally asserted in support of the 8

motion and we do not preclude the court from considering the ground on remand. 

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