Mary Bradley v. Catherine A. Pesce

                                                                                          12/19/2023
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               October 17, 2023 Session

                  MARY BRADLEY v. CATHERINE A. PESCE

                  Appeal from the Circuit Court for Shelby County
                   No. CT-0184-23    Damita J. Dandridge, Judge
                      ___________________________________

                             No. W2023-00583-COA-R3-CV
                         ___________________________________


The plaintiff filed a complaint against two parties in general sessions court. One defendant
was served, but the other was not. Judgment was entered against the served defendant.
Seven months later, the claim against the unserved defendant was voluntarily dismissed.
The served defendant then appealed, but the circuit court dismissed the appeal as untimely.
Because a final, appealable judgment in the general sessions court was not entered until
the claim against the unserved defendant was voluntarily dismissed, we conclude that the
served defendant’s appeal was timely. Reversed and remanded.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY
ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.

Andrew H. Owens, Memphis, Tennessee, for the appellant, Catherine A. Pesce.

Murray B. Wells, Memphis, Tennessee, for the appellee, Mary Bradley.


                                        OPINION

                    I.      FACTUAL AND PROCEDURAL BACKGROUND

      On March 12, 2020, Plaintiff/Appellee Mary Bradley (“Appellee”) filed a civil
warrant in the Shelby County General Sessions Court (“the general sessions court”) against
Appellant/Defendant Catherine A. Pesce (“Appellant”) and Defendant Kaliya Weaver.
Appellee alleged that she sustained injuries due to the negligent operation of a vehicle by
both defendants in March 2019. Appellant was served through her attorney, but the
summons for Ms. Weaver was returned not to be found.

        Eventually, judgment was entered against Appellant in the amount of $17,500.00
on June 2, 2022. On November 16, 2022, however, Appellant filed a motion to set aside
the judgment against her on the ground that she had no notice of any court proceedings.1
Therein, Appellant argued that the general sessions court could hear the motion because it
still had “jurisdiction over this matter as [Appellee’s] claim against the other defendant,
[Ms.] Weaver, was not terminated or addressed and is therefore still pending[.]”

        On or about January 5, 2023, the general sessions court denied Appellant’s motion
to set aside the June 2, 2022 judgment.2 The trial court further ruled that the claim against
Ms. Weaver should be nonsuited. The claim against Ms. Weaver was therefore voluntarily
dismissed as of January 5, 2023.

       On January 9, 2023, Appellant filed a notice of appeal to the Shelby County Circuit
Court (“the trial court”). Shortly thereafter, Appellee filed a motion to dismiss the appeal
on the basis that Appellant’s notice of appeal was untimely. Appellant responded in
opposition on February 1, 2023. Therein, Appellant argued that the case in the general
sessions court was not final and appealable until the nonsuit of the second defendant on
January 5, 2023, and that her notice of appeal, filed less than ten days later, was timely. On
February 2, 2023, Appellant filed her own motion to dismiss, arguing that Appellee’s
personal injury claim was time-barred by the one-year statute of limitations under
Tennessee Code Annotated section 28-3-104.

       On March 27, 2023, the trial court entered an order dismissing Appellant’s appeal
on the basis that her notice of appeal was untimely. Therein, the trial court ruled that “final
judgment as to [Appellant] was taken in [the general sessions court] on June 2, 2022.” The
trial court later denied Appellant’s motion to dismiss Appellee’s complaint as moot.
Appellant filed a notice of appeal to this Court on April 24, 2023.

                                        II.      ISSUES PRESENTED

       Appellant presents two issues in this appeal: (1) whether the trial court erred in
granting Appellee’s motion to dismiss her appeal; and (2) whether the trial court erred in
denying Appellant’s motion to dismiss Appellee’s claim.

                                              III. ANALYSIS



        1
           Specifically, Appellant asserted that despite the fact that her counsel filed a notice of appearance
in the general sessions court, the notice of the final hearing was not sent to her counsel.
         2
           The date of the order is January 5, 2023, however, the certificate of service is dated January 9,
2023.
                                                    -2-
        We begin with the trial court’s decision to dismiss Appellant’s appeal of the general
sessions court’s judgment against her on the basis that her notice of appeal was not timely.
Relevant to this issue, Tennessee Code Annotated section 27-5-108 provides that “[a]ny
party may appeal from a decision of the general sessions court to the circuit court of the
county within a period of ten (10) days on complying with this chapter.” It is well settled
that in the absence of a timely filed notice of appeal, the circuit court lacks subject matter
jurisdiction to consider an appeal from the general sessions court. See Discover Bank v.
McCullough, No. M2006-01272-COA-R3-CV, 

, at *5 (Tenn. Ct. App.
Jan. 29, 2008) (“[U]nless a party perfects its de novo appeal within ten days from the date
of the judgment, the circuit court does not obtain jurisdiction over the appeal.”); Vanderbilt
Univ. v. Haynes, No. M2001-02688-COA-R3-CV, 

, at *1 (Tenn. Ct. App.
Feb. 4, 2003) (“A timely appeal is a mandatory requirement without which the Circuit
Court does not obtain jurisdiction.”))). We consider the question of the trial court’s subject
matter jurisdiction de novo, with no presumption of correctness as to the trial court’s
determination. Northland Ins. Co. v. State, 

 (Tenn. 2000).

       There is no dispute that Appellant did not file a notice of appeal within ten days of
the June 2, 2022 judgment awarding damages to Appellee. Rather, Appellant asserts that
the ten-day time period for appealing did not begin to run until the claim against the second
defendant, Ms. Weaver, was nonsuited. Because Appellant’s notice of appeal was
undisputedly filed within ten days of the order of nonsuit, Appellant asserts that her appeal
should not have been dismissed. We agree.

       In appeals to this Court, the question of when the time for filing a notice appeal
begins to run is easily answered by the Tennessee Rules of Appellate Procedure, as Rule 3
specifically provides as follows:

       [I]f multiple parties or multiple claims for relief are involved in an action,
       any order that adjudicates fewer than all the claims or the rights and liabilities
       of fewer than all the parties is not enforceable or appealable and is subject to
       revision at any time before entry of a final judgment adjudicating all the
       claims, rights, and liabilities of all parties.

Tenn. R. App. P. 3(a). And this Court has indicated that a case is not final and appealable
until a cross-complaint has been adjudicated. See Daniels v. Trotter, No. E2020-01452-
COA-R3-CV, 

, at *2 (Tenn. Ct. App. July 20, 2022) (noting that the
parties were required to brief whether the appellate court had jurisdiction as a cross-
complaint and counter-complaint were pending in the trial court, but noting that the issue
was resolved when those claims were voluntarily dismissed). The Tennessee Rules of
Appellate Procedure, however, do not apply to appeals from the general sessions court. See
Wells Fargo Bank, N.A. v. Dorris, 

 (Tenn. Ct. App. 2017). We have
held, however, that we may apply rules similar to the rules of appellate procedure given
the language of the statutes applicable to appeals from general sessions courts. 

                                           -3-
(applying the premature notice of appeal rule applicable under our rules of appellate
procedure to an appeal from general sessions court).

        The finality rule contained in Rule 3(a) was not a novel concept at the time of the
adoption of the Tennessee Rules of Appellate Procedure in 1979. See H.D. Edgemon
Contracting Co. v. King, 

 (Tenn. 1991). Rather, Rule 3(a) appears to
have merely codified the common law rule that “[a] judgment is final from which an appeal
lies as a matter of right when it decides and disposes of the whole merits of the case leaving
nothing for the further judgment of the court.” Saunders v. Metro. Gov’t of Nashville &
Davidson Cnty., 

, 

 (Tenn. 1964) (citing Younger v.
Younger, 

, 

 (Tenn. 1891)). So then, the finality rule is not peculiar
to our rules of appellate procedure.

       Tennessee courts have therefore specifically held that the finality rule is applicable
even in appeals from the general sessions court. For example, in State v. Osborne, 

 (Tenn. Crim. App. 1986), the Court of Criminal Appeals explained that
“[o]bviously, the wording of [section] 27-5-108 means that before such an appeal can be
taken, there must have been a final judgment entered in the general sessions court, and an
appeal under this statute cannot be had for the review of interlocutory orders, as were issued
by the sessions court in the instant case.” This Court reached the same conclusion despite
the inapplicability of Rule 3 in Leak v. Goodwill, No. 03A01-9611-CV-00359, 

 (Tenn. Ct. App. July 2, 1997). As we explained,

       [W]e note that insofar as we are able to determine there is no rule applicable
       to the General Sessions Court similar to Rule 3 of the Tennessee Rules of
       Civil Procedure, which, with certain exceptions, only allows appeals of final
       judgments.
              Notwithstanding there is no such Rule as to the General Sessions
       Court, we believe that such a Rule is salutary and conclude the purported
       appeal from General Sessions Court to Circuit Court was premature and does
       not properly lie until disposition of the case against AT & T, the other
       Defendant.

Id. at *2.

        Somewhat more recently, we applied the rules set forth in Osborne and Leak to hold
that the time for filing a notice of appeal did not begin to run until every claim raised in the
general sessions court was adjudicated, explaining:

       By order entered on February 20, 2007, the General Sessions Court granted
       Defendants summary judgment and dismissed Plaintiff’s claims 1 through
       13. Plaintiff then moved to withdraw claim 14, and the General Sessions
       Court granted Plaintiff a dismissal without prejudice of this sole remaining
                                           -4-
       claim by order entered March 26, 2007. Thus, a final order in the General
       Sessions case, one that decided and disposed of all remaining claims between
       all parties leaving nothing for the further judgment of the court, was entered
       on March 26, 2007. Under 

(a), Plaintiff had ten
       days from March 26, 2007 in which to appeal to Circuit Court the adverse
       decision of the General Sessions Court dismissing claims 1 through 13 with
       prejudice. Plaintiff did not appeal, but instead waited approximately eight
       months and then filed a complaint in Chancery Court again raising the same
       claims 1 through 13 against the same Defendants.

Graham v. Walldorf Prop. Mgmt., No. E2008-00837-COA-R3-CV, 

, at
*5 (Tenn. Ct. App. Mar. 19, 2009). We later confirmed that the finality rule applies despite
a 2008 amendment to section 27-5-108 that removed a previous limitation allowing an
appellant to appeal only an adverse judgment. See U.S. Bank Nat. Ass’n v. Rzezutko, No.
E2011-00058-COA-R3-CV, 

, at *4 (Tenn. Ct. App. Oct. 25, 2011)
(“The removal of the word ‘adverse’ from [section] 27-5-108 did not eliminate the need
for a final judgment from the general sessions court in order to file an appeal pursuant to
[section] 27-5-108.”); see also Wells Fargo Bank, 556 S.W.3d at 753–54 (“[T]he case is
not final but merely interlocutory pending resolution of all outstanding issues. . . . The same
principle applies with regard to appeals in general sessions courts.” (citations omitted)).
Thus, it is fairly well settled that the judgment of the general sessions court is not
appealable until all the claims of all the parties are adjudicated. See Tenn. R. Sup. Ct.
4(g)(2) (“Opinions reported in the official reporter . . . shall be considered controlling
authority for all purposes unless and until such opinion is reversed or modified by a court
of competent jurisdiction.”).

       Finally, we note that a more recent amendment to section 27-5-108 confirms our
understanding. Specifically, in 2018, section 27-5-108 was amended to include the
following additional language:

       In civil cases, if one (1) or more of the parties before the general sessions
       court, on one (1) or more warrants, perfects an appeal of a decision of the
       general sessions court to the circuit court, as provided in this section, then
       cross appeals and separate appeals are not required, and upon the filing of a
       notice of appeal by any party, issues may be brought up for review by any
       party.

See 2018 Tenn. Laws Pub. Ch. 858 (H.B. 2202), eff. May 3, 2018. This language clearly
states that even when there are multiple parties to a general sessions court action, only a
single notice of appeal is necessary to vest jurisdiction in the circuit court. If a single notice
of appeal is sufficient to appeal claims against multiple parties, it is only logical that the
appeal does not lie until all claims are adjudicated.

                                              -5-
       On appeal, however, Appellee argues that the cases above are not controlling
because none involved a case in which a remaining party to a lawsuit was never served and
therefore “never became a party to the instant litigation[.]” But Appellant cites no law for
the proposition that a claim against a party is not a pending claim for purposes of finality
unless and until that party is served. Certainly, a judgment against a party over which the
court has no personal jurisdiction is void. Turner v. Turner, 

(Tenn. 2015) (noting that a trial court does not have personal jurisdiction over a party who
has not been served or given notice in some other manner provided by law). It therefore
may be collaterally attacked at any time. 

. But that does not mean that a claim
filed against a party need not be dismissed for a final judgment to be entered.

       For one, a Tennessee statute specifically provides that “[o]bjections to the
jurisdiction of the general sessions court before which the warrant is returned shall be made
before the hearing, or they will be considered as waived.” 

.
This Court has interpreted section 16-15-505 to mean that “any issues related to
the general sessions court’s jurisdiction must be raised ‘before the hearing, or they will be
considered as waived.’” Assocs. Asset Mgmt., LLC v. Smith, No. M2019-02217-COA-R3-
CV, 

, at *3 (Tenn. Ct. App. Nov. 3, 2020) (quoting 

). We have also held that section 16-15-505 applies to an objection related to
service of process. Metro. Gov’t of Nashville & Davidson Cnty. v. Jones, No. M2020-
00248-COA-R3-CV, 

, at *4 (Tenn. Ct. App. Apr. 23, 2021), perm. app.
denied (Tenn. Oct. 14, 2021). Although waiver is not at issue in this case, section 16-15-
505 confirms that issues of personal jurisdiction may be waived in general sessions court.3
And if these objections may be waived, then a jurisdictional defect like the one alleged in
this case does not automatically result in a named party “never bec[oming] a party” to the
action. Instead, the non-served party is a party unless and until such time as he or she is
dismissed. And the claim against that party is pending until it is dismissed or otherwise
adjudicated.

       This is true even when the non-served party is voluntarily dismissed by the plaintiff.
Indeed, the Tennessee Supreme Court has explicitly stated that an order of nonsuit must be
entered to commence the running of the appeal period. See Ewan v. Hardison L. Firm,

 (Tenn. Ct. App. 2014) (“[T]he Tennessee Supreme Court held that a
written order of dismissal was required in order to facilitate the administrative tasks of
assessing costs and commencing the thirty-day appeal period.” (citing
Green v. Moore, 101 S.W.3d 419–20 (Tenn. 2003)). The general sessions court followed
this mandate when it entered its order as to Appellee’s voluntary dismissal of the claim
against Ms. Weaver.

        3
          This, of course, is similar to the rule applicable in courts of record. See Ramsay v. Custer, 

     (Tenn.     Ct.     App.     2012)     (holding     that   “venue,    adequacy
of service of process, personal jurisdiction, or other similar matters” may be waived (quoting Dixie Sav.
Stores, Inc. v. Turner, 

 (Tenn. Ct. App. 1988))).
                                                   -6-
        So then, the general sessions court action in this case was against two parties:
Appellant and Ms. Weaver. The judgment against Appellant was not final and appealable
until all the claims of all the parties were adjudicated. This occurred on or about January
5, 2023. Appellant’s January 9, 2023 notice of appeal was therefore timely. Consequently,
the trial court erred in dismissing this appeal for lack of subject matter jurisdiction, and
Appellant’s appeal is reinstated.

                                              B.

        Appellant next asserts that the trial court erred in denying her motion to dismiss on
the basis of the expiration of the statute of limitations. Here, the trial court denied the
motion as moot due to the dismissal of Appellant’s appeal. Because we have reversed the
trial court’s ruling that Appellant’s appeal was untimely, we must also reverse the trial
court’s conclusion that Appellant’s motion to dismiss was moot. We will not address,
however, the merits of Appellant’s motion, as that question should be decided by the trial
court on remand, giving the parties an opportunity to litigate this issue more fully. See Mid-
S. Maint. Inc. v. Paychex Inc., No. W2014-02329-COA-R3-CV, 

, at
*14 (Tenn. Ct. App. Aug. 14, 2015) (“Generally, when the trial court fails to address an
issue in the first instance, this Court will not consider the issue, but will instead remand for
the trial court to make a determination in the first instance.”).

                                      IV. CONCLUSION

       The judgment of the Shelby County Circuit Court is reversed, and this cause is
remanded to the trial court for further proceedings consistent with this Opinion. Costs of
this appeal are taxed to Appellee Mary Bradley, for which execution may issue if
necessary.


                                                   S/ J. Steven Stafford
                                                   J. STEVEN STAFFORD, JUDGE




                                             -7-