IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Submitted On Briefs March 29, 2011

KIRKLAND STURGIS

v.

DONNA SMITH THOMPSON

Appeal from the Circuit Court of Crockett County

No. 3209 Clayburn L. Peeples, Judge

No. W2010-02024-COA-R3-CV - Filed June 13, 2011

This is an appeal from the circuit court’s dismissal of an appeal from the general sessions

court. The appellee purchased property during a foreclosure sale. The appellee purchaser

filed an action in general sessions court to gain possession of the property from the

defendant/appellant and recover rent. After an adverse judgment in the general sessions

court, the defendant/appellant appealed to the circuit court. The circuit court found that the

defendant/appellant failed to perfect her appeal because she did not file a cost bond or make

bond for one year’s rent and costs. Consequently, the circuit court dismissed the appeal from

general sessions court. The defendant/appellant appeals to this Court. We affirm based on

failure to file a cost bond.

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

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and J. STEVEN STAFFORD, J., joined.

Plaintiff/Appellee Kirkland Sturgis, Alamo, Tennessee, pro se.

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Defendant/Appellant Donna Smith Thompson, Alamo Tennessee, pro se.

The appellee was represented by counsel in the circuit court. 1
OPINION

FACTS AND PROCEEDINGS BELOW

On December 2, 2009, Plaintiff/Appellee Kirkland W. Sturgis (“Sturgis”) filed a civil

complaint in the General Sessions Court for Crockett County, Tennessee,seeking possession

of property located in Alamo, Crockett County, Tennessee. Sturgis asserted that he

purchased the property through foreclosure sale in November 2009. In addition to possession

of the property, Sturgis’ General Sessions complaint sought rent from November 2009

forward from the person in possession, Defendant/Appellant Donna Smith Thompson

(“Thompson”). Thompson filed a response seeking dismissal of the complaint, alleging that

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the notice of the foreclosure sale was inadequate.

After a hearing, on August 9, 2010, the General Sessions Court entered a judgment in favor

of Sturgis. In its order, the General Sessions Court referenced the statutes governing judicial

or trust sales, Tennessee Code Annotated § 35-5-101, et seq. It acknowledged the specific

notice requirements in Sections 35-5-101 through 105, but found that Sturgis was a good

faith purchaser at a properly noticed foreclosure sale, such that the transfer of the property

to Sturgis was neither void nor voidable. Sturgis was awarded possession of the property and

a judgment against Thompson for rent during the time of Thompson’s possession in the

amount of $2800. The General Sessions Court order notified Thompson of her right to

appeal the judgment of the General Sessions Court to the Circuit Court by filing a notice of

appeal within ten days of entry of the judgment.

Subsequently, Thompson filed a uniform civil affidavit of indigency with the Circuit Court

of Crockett County. On August 17, 2010, the Circuit Court Judge signed the bottom of the

affidavit, adjudging Thompson to be non-indigent. Despite being adjudged non-indigent, on

August 19, 2010, Thompson filed a pauper’s oath in lieu of appeal bond in the Circuit Court.

Also on August 14, 2010, Thompson filed a pleading in the Circuit Court seeking to appeal

the judgment of the General Sessions Court. In response, Sturgis filed a motion in the Circuit

Court seeking dismissal of Thompson’s appeal from General Sessions because Thompson

had not perfected her appeal. In order to do so, Sturgis argued in his motion, Thompson was

required to file a cost bond under T.C.A. § 27-5-103 and make a bond for one year’s rent and

costs under T.C.A. § 29-18-130(b)(2). Sturgis asserted that Thompson had done neither. As

The record is not clear on Thompson’s status, but it appears that she may have been the owner of the 2

property at the time of the foreclosure sale, because her pleadings claim that she had been paying property

taxes on the property at issue.

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Thompson had not perfected her appeal, Sturgis maintained, the Circuit Court did not have

subject matter jurisdiction over the cause, so Thompson’s appeal should be dismissed.

Thompson opposed Sturgis’ motion to dismiss and filed a “Counter Motion to Dismiss.”

Thompson again maintained that she had paid taxes on the property at issue. Thompson

sought $30,000 in damages because Sturgis had caused her to “miss work.”

The Circuit Court held a hearing on September 10, 2010. On the same day, it entered an

order granting Sturgis’ motion to dismiss. The Circuit Court found that Thompson had

“failed to perfect her appeal and that the motion to dismiss should be granted for lack of

subject matter jurisdiction.” Thompson now appeals to this Court.

ISSUES ON APPEAL AND STANDARD OF REVIEW

On appeal, Thompson argues the merits of the ruling of the General Sessions Court, and also

seeks to appeal the Circuit Court’s dismissal of her appeal. Likewise, in response, Sturgis

argues that the General Sessions Court’s judgment was correct, and that the Circuit Court’s

dismissal of Thompson’s appeal should be affirmed.

We note that this appeal is from the order of the Circuit Court, specifically, from its dismissal

of Thompson’s appeal from the General Sessions Court. Regardless of this Court’s decision

in this appeal, we cannot review the order of the General Sessions Court. If the Circuit Court

erred, then the cause would be remanded to the Circuit Court for consideration of

Thompson’s appeal from General Sessions Court; if the Circuit Court did not err, then the

order of the General Sessions Court stands. Either way, it is clear that the sole issue on

appeal for this Court is whether the Circuit Court properly dismissed Thompson’s appeal.

This is a question of law, and we review the Circuit Court’s decision de novo, affording it

no presumption of correctness. Northland Ins. Co. v. State of Tenn., 33 S.W.3d 727, 729

(Tenn. 2000).

ANALYSIS

Appeals from Tennessee’s general sessions courts are governed by Tennessee Code

Annotated §§ 27-5-101 (2000) et seq. Section 27-5-108 states that any party may appeal

from a decision of the general sessions court to the circuit court. T.C.A. § 27-5-108(a)(1).

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The appeal must be perfected within ten days of the entry of the general sessions court

In 2008, subsection (a)(1) of Section 27-5-108 was amended to state that an appeal could be taken from any 3

decision of the General Sessions Court, not just an “adverse” decision.

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judgment. T.C.A. § 27-5-108(a)(1) and (6) (2000). The appeal is heard de novo in the circuit

court. T.C.A. §27-5-108(c) (2000).

Section 27-5-103 sets forth the bond requirement for an appeal from general sessions court;

it states that “before the appeal is granted, the person appealing shall give bond with good

security, as hereinafter provided, for the costs of the appeal, or take the oath for poor

persons.” T.C.A. § 27-5-103(a) (2000). This is necessary in order to “perfect” the appeal:

[T]he timely filing of a notice of appeal is not the only prerequisite for

perfecting a de novo appeal to circuit court from the general sessions court.

Persons desiring a de novo appeal must also file a cost bond or an affidavit of

indigency. Tenn. Code Ann. § 20-12-127 (1994); Tenn. Code Ann. § 27-5-103

(2000); 1 Lawrence A. Pivnick, Tennessee Circuit Court Practice § 3.11 at

261-62 & n.8 (2007). A de novo appeal to circuit court is perfected only after

both the notice of appeal and the appeal bond or affidavit of indigency has

been filed. Clay v. Barrington Motor Sales, Inc., 832 S.W.2d 33, 34 (Tenn.

Ct. App. 1992); cf. City of Tullahoma v. Woods, No. 01A01-9106-CV-00201,

1991 WL 181853, at *1-2 (Tenn. Ct. App. Sept. 18, 1991).

Discover Bank v. McCullough, No. M2006-01272-COA-R3-CV, 2008 WL 245976, at *6

(Tenn. Ct. App. Jan. 29, 2008). “The requirement of a bond in order to perfect an appeal

from an inferior court to the circuit court is not a formality. The appeal is not perfected

without it.” City of Red Boiling Springs v. Whitley, 777 S.W.2d 706, 708 (Tenn. Ct. App.

1989) (citing Chapman v. Howard, 71 Tenn. 363 (1879)).

The failure of an appellant from general sessions court to comply with the statutory security

requirement means that the circuit court never acquires subject matter jurisdiction over the

appeal: “The only way that a circuit court may acquire subject matter jurisdiction over a

case litigated in a general sessions court is through the timely perfection of a de

novo appeal.” Discover Bank, 2008 WL 245976 at *8.

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In the case at bar, Sturgis filed a motion to dismiss for failure to file a cost bond under T.C.A.

§ 27-5-103.

4 The Circuit Court dismissed Thompson’s appeal, finding that it did not have

subject matter jurisdiction because Thompson did not perfect her appeal.

We note that, after filing her notice of appeal from the General Sessions Court judgment,

Thompson executed a Uniform Civil Affidavit of Indigency, pursuant to Rule 29 of the

Tennessee Supreme Court Rules. TENN. SUP. CT. R. 29. As set forth in Rule 29, the form

executed by Thompson included at the bottom both an “Order Allowing Filing on Pauper’s

Oath” and a “Determination of Nonindigency,” for the Circuit Court Judge to review

Thompson’s affidavit and determine whether she should be deemed indigent. The Circuit

Court Judge signed the portion at the bottom of the affidavit indicating that he found

Thompson not indigent: “A signature under the heading ‘DETERMINATION OF

NONINDIGENCY’ allows the judge to signify that the plaintiff is not an indigent person,

and thus does not qualify to file the case on a pauper’s oath.” Sweatt v. Tenn. Dept. of Corr.,

99 S.W.3d 112, 114 (Tenn. Ct. App. 2002) (perm. app. den. 2003). Undeterred, Thompson

filed a Pauper’s Oath in Lieu of Appeal Bond, pursuant to T.C.A. § 20-12-127 (2009). The

Pauper’s Oath Thompson filed included a handwritten note acknowledging that she was “not

granted” the right to proceed on a pauper’s oath.

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In the motion to dismiss, Sturgis also referenced the bond for one year’s rent under T.C.A. § 29-18- 4

130(b)(2). T.C.A. §29-18-130(b)(2) provides in pertinent part as follows:

In cases where the action has been brought by a landlord to recover possession of leased

premises from a tenant on the grounds that the tenant has breached the contract by failing

to pay rent, and a judgment has been entered against the tenant . . . the defendant shall

execute bond, or post either a cash deposit or irrevocable letter of credit from a regulated

financial institution, or provide two (2) good personal sureties with good and sufficient

security on the amount of one (1) year’s rent of the premises. . . .

T.C.A. §29-18-103(b)(2) (2000). Thisstatute is applicable to an unlawful detainer action filed by a landlord

against a tenant for possession and failure to pay rent. See Swanson Dev., L.P. v. Trapp, No. M2006-02310-

COA-R3-CV, 2008 WL 555705, at *3 (Tenn. Ct. App. Feb. 29, 2008); Johnson v. Hayden, 1993 WL 155681

(Tenn. Ct. App. 1993). The record in this case is unclear as to whether Thompson is a tenant or the former

owner of the property. Even assuming she is a tenant, this statute applies to a tenant who seeks to retain

possession of the property during the appeal. Swanson, 2008 WL 55705, at *3 (quoting Johnson, 1993 WL

15681, at *1). The Circuit Court below did notspecify whether its dismissal was based on Section 27-5-103,

Section 29-18-130(b)(2), or both. As we do not address Thompson’s right to retain possession of the

property during the appeal, we do not address Section 29-18-130.

Rule 29 of the Tennessee Supreme Court Rules provides that if a judge determines that a litigant is not 5

eligible to proceed under a pauper’s oath, the litigant has “the right to a hearing before the judge. . . .” TENN.

SUP. CT. R. 29. The record does not indicate that Thompson requested such a hearing. Therefore, whether

(continued...)

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Under these circumstances, Thompson was not relieved of the statutory requirement of an

appeal bond under T.C.A. § 27-5-103 (2000). It is undisputed that she did not file the

required bond. Therefore, the Circuit Court did not err in dismissing the case for lack of

subject matter jurisdiction. Discover Bank, 2008 WL 245976, at *8.

CONCLUSION

The decision of the trial court is affirmed. Costs on appeal shall be taxed to Appellant Donna

Smith Thompson and her surety, for which execution may issue, if necessary.

_______________________________________

HOLLY M. KIRBY, JUDGE

(...continued) 5

the Circuit Court Judge correctly determined Thompson nonindigent is not an issue on appeal.

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