### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs July 8, 2015

JIM HICKS ET AL



### . v. DEBBIE SEITZ ET AL



### .

Appeal from the Circuit Court for Sevier County

No. 13

- CV

- 396

- IV O. Duane Slone

, Judge

No. E2014

- 02225

- COA

- R3

- CV

– Filed September 23, 2015

This is a contract action involving an alleged oral contract between the plaintiffs,

landlords Jim Hicks and Betty Hicks (“Landlords”), a married couple who own the rental property at issue, and the co

- defendant, Duane Seitz, who located and paid the first
month‟s rent on the property on behalf of his former wife

, Debbie Seitz . Ms. Seitz

, also originally named as a co

- defendant

, resided in the home on the property with her adult daughter, her adult daughter ‟ s boyfriend, and the daughter‟s two small ch ildren (collectively, “Tenants”) . Following several months during which the rent was paid late, partially

, or not at all and upon discovery of unkempt conditions in the home, L andlord s served T enants with a notice of eviction. After T enants had moved fro m the home,

L andlords filed a c ivil warrant in the Sevier County General Sessions Court against the defendants, Ms. Seitz and Mr. Seitz, alleging unpaid rent and vandalism. Upon hearing,

t he General Sessions Court entered a judgment in favor of L andlords and against both defendants in the amount of $7,000 plus 5.25% interest and court costs . The defendants appealed to the Circuit Court. Following a bench trial, the Circuit Court entered a judgment in favor of L andlord s and against only Mr. Seitz in the amount of $6, 2 8 5 in damages, plus 5.25% interest and court costs

, based upon breach of an oral contract. Having found that Mr. Seitz had entered an oral contract with L andlords but that Ms.

Seitz had not, the Circuit Court dismissed Ms. Seitz from the act ion. Mr. Seitz appeals

, contending that the trial court erred by (1) finding an enforceable oral contract between Mr. Hicks and Mr. Seitz and (2) dismissing Ms. Seitz from the action

. Because M s. Seitz was never served with notice of this appeal, we conc lude that this Court does not have subject matter jurisdiction over the issue of her dismissal from this matter. As to the trial court‟s judgment in favor of Landlords, we d iscern no error and affirm

.

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

Affirmed; Case Remanded

T HOMAS R. F RIERSON

, II, J. , delivered the opinion of the court, in which C HARLES D.

S USANO

, J R

., C.J., and D. M ICHAEL S WINEY

, J. , joined.2

David W. Webb

, Sevierville , Tennessee, for the appellant, Du ane Seitz

.

Bryan E. Delius and Bryce W. McKenzie

, Sevierville , Tennessee, for the appellees, Jim Hicks and Betty Hicks.

OPINION

I. Factual and Procedural Background

L andlords own title to the subject rental property, a three

- bedroom home located

on a small farm on Union Valley Road in Se ymour , Tennessee (“ the Rental Property”).

Landlords inherited the Rental Property from Ms. Hicks‟s mother , who had resided in the house on the property prior to her death. Throughout the proceedings, Landlords resid ed in a home located approximately four miles from the Rental Property. In the late summer

or early fall of 2012, Mr. Seitz learned through Mr. Hicks‟s sister that the Rental Property

was available for tenancy . He contacted Mr. Hicks and expressed his in terest in the Rental Property as a place for his former wife, co

- defendant Debbie Seitz, to live with the
defendants‟ adult daughter and their two minor grandchildren. 1 Ms. Seitz and her family resided in Kentucky at the time but planned to relocate to Tennessee

. Meanwhile, Mr.

Seitz had remarried and resided with his current wife in Maryville , Tennessee

.

Upon Mr. Hicks‟s showing the Rental Property to Mr. Seitz, the two men engaged in a conversation in the front yard of the Rental Property. The natu re of the oral agreement reached during this conversation lies at the heart of the instant action

. T he date of this meeting is not apparent from the record . A lthough Mr. Seitz‟s current wife, Mr. Hicks‟s sister, and Mr. Hicks‟s brother

- in

- law were presen t during the discussion

, only Mr. Hicks and Mr. Seitz testified as to their respective understanding of the resultant
agreement

. Despite having created no written record of the rental agreement, s everal points that Mr. Hicks and Mr. Seitz discussed are undisputed. Testimony indicated that Mr. Hicks agreed to accept $600 in monthly rent and that he understood the tenants would be Debbie Seitz, her daughter, her daughter‟s boyfriend, and her daughte r‟s two

small children. U ndisputed testimony also established that Mr. Hicks delineated
Landlords‟ rental conditions that they would expect the house and yard to be maintained in good condition and would not allow Tenants to keep pets on the Rental Proper ty. Landlords reduced the rent by $100 during the months of January and February to
compensate for higher utility costs, which would be Tenants‟ responsibility. Mr. Hicks understood that Mr. Seitz had no plans to reside at the Rental Property himself.

1 Because Mr. Seitz has remarried, we will reference co

- defendant Debbie Seitz‟s first name where necessary for clarity.3

The substantive point in contention is the characterization of Mr. Seitz‟ s role in the

ren tal agreement. Mr. Seitz acknowledged at trial that he informed Mr. Hicks during their intial meeting that he would convey Landlords‟ expressed conditions to Tenants

. Mr. Seitz denied having made any promise or guarantee that the rent would be paid and the Rental Property kept in good condition. According to Mr. Seitz, he told Mr. Hicks: “This is between you and them [Tenants].” In contrast

, Mr. Hicks expla ined that he understood the oral agreement to be that Mr. Seitz would guarantee payment of the rent and maintenance of the Rental Property

. Mr. Hicks testified specifically that Mr. Seitz
“was the man that [he] dealt with .” The initial meeting ended with Mr. Seitz‟s tendering Mr. Hicks a check in the amount of $600 for the first month‟s rent in exchange for key s to the rental property.

According to Mr. Seitz, he traveled to Kentucky the day after paying Mr. Hicks
the first month‟s rent and assisted Tenants in their move from Kentucky to Se ymour, Tennessee . He stated that “[a]s soon as [he] picked them up, they reimbursed [ him ] ” for the $600 rent payment. Mr. Seitz re called the month that Tenants moved into the Rental Property as October 20 12, while Mr. Hicks remembered it as “about mid, late summer of

2012.” The exact date the rental period commenced is not significant to the issues presented and does not affect the instant analysis.

Following Tenants‟ initial occupation of the Rental Property, Ms. Seitz made the rental payments to Landlord s for several months. It was undisputed, however, that Ms. Seitz was often late in paying the rent and sometimes paid only a portion at a time. Mr.

Hicks testified that he called Mr. Seitz “a time or two when Debbie was late” with the rent and that Mr. Seitz agreed to talk to his former wife about the rent. When questioned regarding whether he expected Mr. Seitz to pay the rent himself, Mr. Hicks responded: “ I
didn‟t ex pect him to if she was going to pay it, but I expected him to see that it was paid.” Mr. Seitz acknowledged that Mr. Hicks had call ed him once to inform him that Ms. Seitz

was late with payment of the rent . According to Mr. Seitz, he told Mr. Hicks he “ w ould

contact Debbie and find out what‟s going on and have her contact him.” Mr. Seitz never paid the rent personally after his initial $600 payment to Mr. Hicks for the first month‟s

rent. As to property maintenance, Mr. Seitz testified that he occasiona lly mowed the lawn at the Rental Property because it was conveniently located near his mother

- in

- law‟s home, where he regularly mowed. He further explained that if he had sufficient time, he would mow the lawn at the Rental Property “just to help [Tenants ] out.”

In March 201 3, Mr. Hicks delivered an eviction notice to Tenants at the Rental Property. He did not provide notice of the pending eviction directly to Mr. Seitz. W hen questioned regarding what prompted him to demand that Tenants vacate the premises,

Mr. Hicks stated:4 When I went down to collect the rent, probably the last time I got any money out of Debbie, she gave me $400 out of the $600. When she opened the door, I looked down the hall and I saw the house was a pretty good m ess. I saw cats running from one room to another and I knew there wasn‟t supposed to be any animals in the house. Behind the house, there was a pile of trash that you could load a pickup truck with where rats and possums was digging and bedding in it.

I had done talked to the son

- in

- law or boyfriend about getting rid of that mess. He finally did clean that mess up. Two or three weeks later, it was jus t as bad as it was before.

Tenants did not make any rental payments to Landlords after paying $400 t oward $600

due for the March 2013 rent. Tenants subsequently vacated the Rental Property duri ng the first week of May 2013.

During the weekend of May 5 and 6, 2013, Mr. Hicks visited the Rental Property

after he observed that Tenants had moved out

. Acc ording to his testimony, he was

unable to enter the home because Tenants had l ocked a large dog inside. Upon further inspection, h e observed damage to the property, however, and called the Sevier County
Sheriff‟s Office. On May 7, 2013, a sheriff‟s deput y completed an incident report and took photographs of damage to the home. Tenants previously had returned at some point and retrieved the dog. The cats, however, which according to Mr. Hicks had been feral cats adopted by Ms. Seitz, remained on the Rental Property. Consequently, Mr. Hicks called animal control authorities, who removed the cats. Mr. Hicks related that when he first arrived at the Rental Property a fter Tenants had removed the dog, he had to “shovel” dog feces out of the home.

In addition to finding garbage and debris throughout the home and yard, Mr. Hicks

described extensive damage to the Rental Property, including deep scratches on every door, ruined carpet, and cigarette butts thrown in the kitchen sink . O verpowering odors

of cat urine and cigarette smoke permeated the interior of the house. Landlords presented photographs, admitted into evidence without objection, corroborating the damage t o the Rental Property. Furthermore , Mr. Hicks‟s undisputed testimony indicated that Tenants

removed a refrigerator, washing machine, and lawn mower belonging to Landlords. Mr. Hicks‟s testimony and a photograph also demonstrated that Landlords‟ dryer was thrown onto a “pile of junk” in the yard. Mr. Hicks further testified that the dryer‟s lid had been twisted to the point that the dryer would no longer operate . T he outbuilding designed to

shelter the lawn mower was likewise full of garbage and debris.5

On May 9, 2013, the Sevier County General Sessions Court issued a civil warrant against Ms. Seitz and Mr. Seitz upon Landlords‟ allegations of theft, vandalism, and other damages to the Rental Property. The warrant was served on June 9, 2013. Following a merits hearing , the General Sessions Court entered a j udgment on June 24, 2013, in favor of Landlords and against both defendants in the amount of $7,000 plus

5.25% interest and costs of the suit. Represented jointly by counsel, Ms. Seitz and Mr.

Seitz timely appealed to the Sevier County Circuit Court (“trial court”)

.

The trial court conducted a bench trial on September 23, 2014. At the outset , the defendants‟ former joint counsel announced that he was representing only Mr. Seitz . Ms. Seitz appeared, representing herself. She did not testify . In response to the trial court‟s invitation to Ms. Seitz to present her case at the close of Mr. Seitz‟s proof, Ms. Seitz declined to present any proof or make any substantive statement.

During the trial, Landlords requested total damages in the amount of $7,690

. Specifically this amount included:

Unpaid rent: $1,400

One m onth‟s rent lost due to need for repairs and cleaning: 600

C leaning, painting, replacing flooring, and removing debris : 4 ,090 Replacement of appliances: 1,600

Total: $7,690

Upon close of all proof , the trial court found that Mr. Seitz had entered into an oral contract with Mr. Hicks in which Mr. Seitz promised that the monthly re nt would be paid and the Rental Property maintained in good condition. The court further found that although Ms. Seitz had resided at the Rental Property, she had not been a party to the oral

contract. The court determined and assigned liability on the p art of Mr. Seitz but not concerning Ms. Seitz. On Oct ober 28, 2014 , the court entered a f inal j udgment, awarding

in favor of Landlords and against Mr. Seitz total damages in the amount of $6,285 plus

5.25% interest and court costs

. The court d ismissed Ms. Seitz from the action. Mr. Seitz timely filed a notice of appeal to this Court and served a copy of that notice upon Landlords. Mr. Seitz did not, however, serve Ms. Seitz with a copy of the notice of appeal, and Ms. Seitz ha s not participated in thi s appeal.

II. Issues Presented

Mr. Seitz present s two issues on appeal, which we have restated as follows:

1. Whether the trial court erred by finding that Mr. Seitz entered a valid and

enforceable oral contract with L andlords.6

2. Whether the trial court erred by dismissing Ms. Seitz from the case at bar

, and alternatively, whether the trial court erred by declining to dismiss the entire cause of action upon its finding that Ms. Seitz should be dismissed as
a party.

III. Standard of Review

Our review of the trial court‟s judgment following a non

- jury trial is de novo upon the record, with a presumption of correctness as to the trial court‟s findings of fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Rogers v.
Louisville Land Co. , 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the evidence to preponderate against the trial court‟s findings of fact, the evidence must support another finding of fact with greater convincing effect.” Wood v. Starko , 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co. , 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001)). We review the trial court‟s conclusions of law de novo with no presumption of correctness. Hughes v. Metro. Gov’t of Nashville & Davidson County , 340 S.W.3d 352, 360 (Tenn. 2011). While “the amount of damages to be awarded in a particular case is essentially a fact question,” “the choice of the proper measure of damages is a question of law.” GSB Contractors, Inc. v. Hess , 179 S.W.3d 535, 541 (Tenn. Ct. App. 2005). The trial court‟s determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. G arrett, 92 S.W.3d 835, 838 (Tenn. 2002).

IV. Enforceable Oral Contract

Mr. Seitz contends that the trial court erred by finding that he had entered into a n enforceable oral contract with Landlords . He concedes the damages suffered by

Landlords and tha t those damages were caused by Tenants‟ breach of an oral rental

agreement

. Mr. Seitz argues , however, that the trial court erred by finding him liable for those damages. He specifically asserts that the court was in err or by finding that a

guaran ty agreement existed in which he guaranteed a rental agreement between Landlords and Ms. Seitz. In contrast, Landlords contend that the trial court‟s findings describe an express oral contract that Mr. Hicks entered into with Mr. Seitz only, thereby

rende ring Mr. Seitz liable for damages to the Rental Property . Upon our thorough and careful review of the record, we ag ree with Landlords on this issue.

As a threshold matter, we note that d uring opening statements made at trial,
Landlords‟ counsel assert ed , without objection from Mr. Seitz‟s counsel or Ms. Seitz, that the current action was governed by the Uniform Residential Landlord and Tenant Act7

(“URLTA”), specifically Tennessee Code Annotated § 66

- 28

- 20 2 , regarding the effect of unsigned rental agreeme nts. The URLTA was not invoked by any of the parties again

until Mr. Seitz‟s argument on appeal that Ms. Seitz was a “tenant” under the URLTA and

should therefore not have been dismissed from this action. 2 In determining that Mr.

Hicks and Mr. Seitz had entered into an express oral contract, t he trial court made no specific findings pursuant to the URLTA. Because it is undisputed that Mr. Seitz did not contract to obtain tenancy for himself on the Rental Property, we will address the oral

contract betwee n Mr. Seitz and Mr. Hicks, as determined by the trial court, separately

from the issue of Ms. Seitz‟s tenancy under the URLTA.

To be enforceable, a “contract „must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be
enforced.‟” Staubach Retail Servs.

- Se, LLC v. H.G. Hill Realty Co. , 160 S.W.3d 521, 524 (Tenn. 2005) (quoting Doe v. HCA Health Servs. of Tenn., Inc. , 46 S.W.3d 191, 196 (Tenn. 2001)). An enforceable contract can be “express, implied, written, or oral . . . .” Thompson v. Hensley , 136 S.W.3d 925, 9 29 (Tenn. Ct. App. 2003). As this Court has explained:

An express oral contract and a contract implied in fact are very similar with the primary difference between them being the manner in which the parties

manifest their assent. “In an express contract, the parties assent to the terms of the contract by mean s of words, writings, or some other mode of expression.

. . . In a contract implied in fact, the conduct of the parties and the surrounding circumstances show mutual assent to the terms of the

contract.” River Park Hospital, Inc. v. BlueCross BlueShield of Tennessee,
Inc., No. M2001

– 00288

– COA

– R3

– CV, 2002 WL 31302926, at *10, 2002

Tenn. App. LEXIS 723, at *33 (Tenn. Ct. App. Oct. 11, 2002), appl. perm. appeal denied Feb. 18, 2003.

Id. at 930

. 3

2 According to Tennessee Code Annotated § 66

- 28

- 102(a) (2015), the URLTA is applicable to “counties having a population of more than seventy

- five thousand (75,000), according to the 2010 federal census or any subsequent federal census.” We take judicial not ice for the purpose of applying URLTA to this action that according to the United States Census Bureau official website, the population of Sevier County as of the 2010 federal census was 89,889. See Counts v. Bryan , 182 S.W.3d 288, 293 (Tenn. Ct. App.

200 5) (holding that pursuant to Rule 201 of the Tennessee Rules of Evidence, a court may take judicial notice of facts “capable of accurate and ready determination” in its own proceedings).

3 A second type of implied contract not at issue here is a contract i mplied in law, or quasi

- contract. See Thompson , 136 S.W.3d at 930.8

A guaranty has been defined by this Court as “ a contract by which one person is

bound to another for the [ fulfil l ment ] of a promise or engagement of a third party. ”

Villines v. Parham

- Lindsey Grocery Co. , 6 Tenn. App. 254, 261 (1927) ; see also Samick Music Corp. v. Hoy , No. M2008

- 00441

- COA

- R3

- CV, 200 8 WL 4682216 at *2 (Tenn. Ct. App. Oct. 22, 2008) . As this Court has further explained, a guaranty is “ a collateral promise or undertaking by one person to answer for the payment of some debt or the performance of some contract or duty in case of default of another, who in the first

instance is liable. ” Villines , 6 Tenn. App. at 261. Three parties are necessary to a guaranty: “a promisor, a creditor and a debtor.” See Mathis v. U.S.I Props., Inc. , 894 S.W.2d 278, 281 (Tenn. Ct. App. 1994).

In announcing its decision at the close of trial, the trial court explained its specific findings of fact and conclusions of law as follows in relevant part:

The court is called on to make a judgment as to the credibility of the parties and as part of that, the court has to follow the facts and circumstances of this case. The question is did Mr. Hicks believe that he was entering into an agreement, a contract with Mr. Seitz based on the circumstances and facts as they are in the case.

The court credits th e testimony of Mr. Hicks that he instructed Mr. Seitz what his requirements were, $600 per month, that the rent would be paid, the yard mowed and the house taken care of.

The court finds that it was implicit in Mr. Seitz[‟s] conversation

with Mr. Hicks that he would, in essence, act as a guarantor for those payments. The court looks to Mr. Seitz[‟s] own testimony that he was looking for a place to rent to move my daughter back to Tennessee, because they had moved from place to place. I wanted a place f or my granddaughters. They needed a place to live. I wanted to provide that for them. I wanted to provide that for them. That‟s his words.

I understand your position, Mr. Seitz. The court . . . does find that you did have an agreement with Mr. Hic ks to ensure that these payments be

made and the other conditions met.

. . . The court does find the damages took place.

* * *

That total judgment will be in the amount of $6285 at 5.25 post judgment interest.9 The cause of action against Ms. Debbie Seitz is dismissed. The court finds no relationship with her other than she lived there.

Mr. Seitz bases his assertion that the trial court found a guaranty contract on his interpretation of the court‟s statement that “ it was implicit in Mr. Seitz[‟s] conversation with Mr. Hicks that he would, in essence, act as a guarantor for those payments. ” Reviewing the trial court‟s findings in context and as a whole, however, we conclude that the court found the existence of an express oral contract , not a guaranty, b etween Mr. Seitz and Landlords. The court specifically determined that Mr. Seitz promised to ensure payment of $600 in monthly rent and maintenance of the Rental Property in return for Landlords‟ allowing Tenants to occupy the Rental Property. The court emphasized Mr. Seitz‟s testimony that in obtaining possession of the keys to the Rental Property, he sought to provide a home for his granddaughters. In this regard, Mr. Seitz testified in pertinent part :

I told [Mr. Hicks] I wanted to get my granddaughters down here, that my granddaughters at the time were 1 and 2 and never had a bedroom of their own, never slept in a bed and I wanted to provide it, that the girls

deserved that. I wanted to provide that for them. And with them coming

down h ere, they had money. They were saving money already and figured that would hold them over until they got jobs down here. Mr. Hicks wanted the first month‟s rent prior to them taking possession of the house or coming down, so yes, I did pay Mr. Hicks $600 so I could get the keys to the house for them before I went to pick them up.

It is undisputed that Debbie Seitz was not present when Mr. Seitz and Mr. Hicks

entered into their oral contract

. As Mr. Seitz notes on appeal, a guaranty cannot exist

witho ut a debtor. See Mathis , 894 S.W.2d at 281. The trial court found that Mr. Seitz had bargained with Mr. Hicks to obtain Tenants‟ access to the Rental Property . The consideration given by Mr. Seitz , in addition to payment of the first month‟s rent, was h is assurance that the rent would be paid and the Rental Property maintained according to
Landlords‟ conditions. See generally Brown Oil Co., Inc. v. Johnson, 689 S.W.2d 149, 151 (Tenn. 1985) ( “ It is well

- settled that c onsideration exists when the promisee does something that it is under no legal obligation to do, or refrains from doing something which it has a legal right to do.” ). Ms. Seitz was not a party to the oral contract between

Mr. Hicks and Mr. Seitz and therefore could not enter that contract as a debtor . We

determine that the trial court did not find a guaranty but instead found that an express oral

contract exi sted between two parties only, Mr. Hicks and Mr. Seitz.10

In addition, testimony demonstrated that the conduct of the parties indicated a contract implied in fact between Mr. Seitz and Landlords to the effect that Mr. Seitz would ensure payment of the rent and maintenance of the Rental Property

. On at least one occasion, Mr. Seitz accepted Mr. Hicks‟s notification by telephone that a ren t payment was past due. In response, Mr. Seitz assured Mr. Hicks that he would “find out what‟s going on” and act as a liaison between Ms. Seitz and Mr. Hicks. Mr. Seitz also contributed to the maintenance of the Rental Property by mowing the lawn on mor e than

one occasion.

Mr. Seitz‟s assertion regarding the trial court‟s finding of a guaranty leads to his argument that such a guara nty would be unenforceable pursuant to operation of the

S tatute of F rauds. See Tenn

. Code Ann

. § 29

- 2

- 101(a)(2) (2012) (“ No action shall be brought . . . [t]o charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person . . . unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing . . . .”); In re Estate of Dickerson , 600 S.W.2d 714, 716 (Tenn. 1980) (concluding that this provision of the S tatute of F rauds applies to contracts of guaranty). However, having determined that the trial court found an expre ss oral contract and not a contract of guaranty, we further determine Mr. Seitz‟s defense of the S tatute of F rauds to be without

merit. 4

We conclude that the evidence does not preponderate against the trial court‟s finding that Mr. Seitz entered in to an enforceable oral contract with Mr. Hicks in which he gave his assurance that rent would be paid and the Rental Property maintained. The trial court did not err in holding Mr. Seitz liable for damages incurred by Landlords due

to the breach of that o ral contract.

V. Dismissal of Ms. Seitz as Co

- Defendant

Mr. Seitz also contends that the trial court erred by dismissing Ms. Seitz as a co

defendant. Mr. Seitz‟s argument regarding th is issue is based in part on his assertion that Ms. Seitz would have been the debtor party in a guaranty contract entered into by Landlords as creditors and Mr. Seitz as promisor. See Mathis , 894 S.W.2d at 281 (“A guaranty involves three parties, a promisor, a cre ditor and a debtor.”). Mr. Seitz therefore argues that the trial court should have dismissed the entire action upon the dismissal of

4 There is no indication in the record or the parties‟ respective arguments that the oral contract between Mr. Hicks and Mr. Seitz was set to be performed for a year or longer. See Tenn. Code Ann. § 29

- 2

- 101(5) (requiring written documentation “[u]pon any agreement or contract which is not to be performed within the space of one (1) year from the making of the agreement or contract”); Boutwell v. Lewis Bros.

Lumber Co. , 182 S.W.2d 1, 3 (Te nn. Ct. App. 1944) (“The mere fact that the contract might continue for more than a year does not bring it within the statute . . . .”).11

the “debtor.” Having determined that the trial court did not find a guaranty contract among the parties but, in fact, an express oral contract between Mr. Seitz and Landlords, we further determine this portion of Mr. Seitz‟s argument to be without merit.

We also recognize Mr. Seitz‟s argument that because Ms. Seitz ultimately paid rent directly to Landlords, she was a tenant pursuant to the URLTA. See Tenn. Code Ann. § 66

- 28

- 202(a) (2015) (“ If the landlord does not sign a written rental agreement, acceptance of rent without reservation by the landlord binds the parties on a month to month tenancy. ”); see also Tenn. Code Ann. § 66

- 28

- 401 (2015) (delineating a tenant‟s obligations to, inter alia , “[k] eep that part of the premises that the tenant occupies and uses as clean and safe as the condition of the premises when the tenant took possession”). Upon careful review, however, we determine that this Court lacks subject matter jurisdiction to consider the issue of Ms. Seitz‟s dismissal as a co

- defendant. See Osborn

v. Marr , 127 S.W.3d 737, 739 (Tenn. 2004) (“ Subject matter jurisdiction involves a

court ‟ s lawful authority to adjud icate a particular controversy.”).

Tennessee Rule of Appellate Procedure 3(e) provides that an appeal as of right to a state appellate court “shall be taken by timely filing a notice of appeal with the clerk of the trial court as provi ded in Rule 4 and by service of the notice of appeal as provided in
Rule 5.” Rule 4 (a) provides in pertinent part that generally “the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days

after the date of entry of the judgment appealed from[.]” Rule 5(a) provides in pertinent

part that “ [n] ot later than 7 days after filing the notice of appeal, the appellant in a civil action shall serve a copy of the notice of appeal on counsel of record for each party or, if a party is not represented by counsel, on the party.” Therefore, in order for an appellant to satisfy the requirements of Rule 3(e) and take an appeal as of right before this Court, the appellant must satisfy the requirements of both (1) filing a timely notice of appeal pursuant to Rule 4 and (2) serving each party or counsel for each party with a copy of the notice of appeal pursuant to Rule 5

.

In civil actions, the timely filing of a notice of appeal is jur isdictional and cannot

b e waived by the parties or extended by this Court. See Tenn. R. App. P. 2 (providing for an appellate court‟s suspension of the requirements or provisions of a rule of appellate procedure for good cause, with certain exceptions, particularly as relevant h ere that “this rule shall not permit the extension of time for filing a notice of appeal prescribed in Rule 4[.]”); Am. Steinwinter Investor Grp. v. Am. Steinwinter, Inc. , 964 S.W.2d 569, 571 (Tenn. Ct. App. 1997) (“ The 30

- day rule for notices of appeal is mandatory and jurisdictional and may not be waived .”). This Court may, however, suspend the operation of Rule 5(a) provided good cause. See Tenn. R. App. P. 2 ; G.F. Plunk Constr. Co., Inc. v. Barrett Props., Inc. , 640 S.W.2d 215, 217 (Tenn. 1982) ; see, e.g. , Keith v. Regal Real Estate Co. , No. E2011

- 00337

- COA

- R3

- CV, 2011 WL 6009625 at *212

(suspending the operation of Rule 5(a) when the defendant was notified by the appellate court clerk within two weeks of the filing of the notice of appeal, “thereby indi rectly providing [the defendant] with notice that [the plaintiff] had filed a notice of appeal.”).

In the case at bar, o ur review of the record indicates that M r . Seitz timely filed his notice of appeal to this Court within thirty days of entry of the fi nal judgment in this

action. See Tenn. R. App. P. 3(e), (4) (a) . Mr. Seitz also timely served a copy of the notice of appeal upon cou nsel for Landlords. See Tenn. R. App. P. 3(e), 5(a). We therefore conclude that the controversy between Mr. Seitz and La ndlords is properly

before this Court. See Tenn. R. App. P. 3(e). Mr . Seitz did not, however, serve the notice of appeal upon Ms. Seitz at any time

. Moreover, the record contains no indication

that Ms. Seitz received any type of notification of this appeal, whether direct or indirect.

W e therefore find no good cause to sus pend Rule 5(a) in this instance. Because Mr. Seitz failed to comply with the service requiremen t of Rule 5(a) as to Ms. Seitz, we conclude

that thi s Court lacks subject matter jurisdiction over the controversy involving Ms.

Seitz ‟s dismissal from this action. See Tenn. R. App. P. 3(e); Osborn , 127 S.W.3d at
737

.

VI. Conclusion

For the reasons stated above, we affirm the judgment of the trial court. The costs on appeal are assessed against the appellant, Duane Seitz

. This case is remanded to the trial court, pursuant to applicable law, for collection of costs assessed below.

_________________________________ THOMAS R. FRIERSON, II , JUDGE