Petersen v. Deboe

• Decision Date: 20 May 2015
• Docket Number: No. E2014-00570-COA-R3-CV,E2014-00570-COA-R3-CV
• Parties: KAREN FAY PETERSEN v. DAX DEBOE
• Court: Tennessee Court of Appeals

KAREN FAY PETERSEN v. DAX DEBOE

No. E2014-00570-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

April 15, 2015 Session

MAY 20, 2015

Appeal from the Circuit Court for Anderson County

No. B2LA0280

Donald R. Elledge, Judge

The plaintiff filed the instant action on September 28, 2012, alleging claims against the defendant of breach of contract, misrepresentation, negligent construction, and violation of the Tennessee Consumer Protection Act. Despite several attempts, the plaintiff was unable to obtain personal service of process upon the defendant. The plaintiff subsequently served process upon the defendant via registered mail pursuant to Tennessee Rule of Civil Procedure 4.04, but that mailing was returned "unclaimed." The plaintiff filed a return of service, indicating that service had been properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11). The trial court entered a default judgment in favor of the plaintiff, finding that the defendant had been properly served with process. The defendant in turn moved to set aside the default judgment, and the trial court denied that motion. The defendant has appealed. We affirm the trial court's finding that the defendant was properly served with process. However, we determine that the default judgment was improperly entered in violation of the express language contained in Tennessee Rule of Civil Procedure 4.04(10). We therefore reverse the trial court's denial of the defendant's motion to set aside the default judgment and remand this matter for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL SWINEY and BRANDON O. GIBSON, JJ., joined.

Dax DeBoe, Knoxville, Tennessee, Pro Se.

Jon M. Cope and Justin D. Roddye, Knoxville, Tennessee, for the appellee, Karen Fay Petersen.

OPINION

I. Factual and Procedural Background

The plaintiff, Karen Fay Petersen, filed the instant action against the defendant, Dax DeBoe, on September 28, 2012, in the Anderson County Circuit Court. Ms. Petersen's complaint asserted claims regarding allegedly defective home improvements performed on her residence by Mr. DeBoe. Specifically, Ms. Petersen's complaint included claims of breach of contract, misrepresentation, negligent construction, and violation of the Tennessee Consumer Protection Act. See Tenn. Code Ann. 47-18-101 (2013 & Supp. 2014), et seq. In furtherance of the action, the trial court issued a summons to Mr. DeBoe at his residential address on Evans Road in Knoxville, Tennessee. The initial summons was returned unserved, although the process server noted that several attempts at service had been made.

The trial court issued three subsequent alias summonses in November and December 2012 and January 2013, respectively. The initial two alias summonses were returned unserved, also bearing the process server's notation that multiple attempts at service had been made. Ms. Petersen's counsel mailed the third alias summons to Mr. DeBoe's residential address, as confirmed by the Knox County Trustee's Office, via registered mail. The United States Postal Service left two notices regarding this mailing at Mr. DeBoe's residence before returning the mailing to Ms. Petersen's counsel as unclaimed on March 6, 2013. Ms. Petersen's counsel then filed this third alias summons with the court, stating that Mr. DeBoe was properly served pursuant to Tennessee Rule of Civil Procedure 4.04(11).

Ms. Petersen subsequently filed a motion seeking a default judgment against Mr. DeBoe on May 29, 2013. Ms. Petersen's counsel mailed a copy of this motion and corresponding notice of hearing to Mr. DeBoe's residential address. The trial court conducted a hearing on the motion on July 1, 2013, for which Mr. DeBoe did not appear. The court granted a default judgment to Ms. Petersen and set a hearing concerning damages for July 15, 2013. During that hearing, the trial court awarded Ms. Petersen compensatory damages of $30,000 and punitive damages of $3,330. Following entry, Ms. Petersen's counsel mailed copies of the trial court's judgments to Mr. DeBoe's residential address.

On July 31, 2013, Mr. DeBoe, proceeding through counsel, filed a motion seeking to set aside the default judgment pursuant to Tennessee Rules of Civil Procedure 55.02 and 60.02. Mr. DeBoe claimed that he had only recently learned of the lawsuit after his wife received a corresponding letter at her address. Mr. DeBoe also filed an affidavit, claiming that he was never served with the complaint and had not been living at his homeaddress. Mr. DeBoe maintained that he and his wife were separated during the relevant time period and that he was residing at a different location.

The trial court conducted a hearing on the motion, during which Mr. DeBoe appeared with counsel. Mr. DeBoe explained that he and his wife were separated during the relevant period and that he was not living at the address listed on the summons. Mr. DeBoe also stated that he had not requested the United States Postal Service to forward his mail because he thought his wife would deliver it to him. She in fact had not. According to Mr. DeBoe, he was unaware of the attempted service by mail and only learned of the lawsuit when his wife provided him a copy of the judgment awarding monetary damages.

The trial court, inter alia, found that Mr. DeBoe was not a credible witness. The court specifically determined that Mr. DeBoe had ignored the mailings and was evading service of process. Consequently, the court denied Mr. DeBoe's motion to set aside the default judgment. Mr. DeBoe has appealed. Although no transcript of the hearing was provided, the parties filed competing statements of the evidence pursuant to Tennessee Rule of Appellate Procedure 24. The trial court adopted Ms. Petersen's statement as accurately reflecting what transpired at the hearing. See Tenn. R. App. P. 24(e).

II. Issues Presented

Mr. DeBoe¹ presents the following issues for our review, which we have restated slightly:

1. Whether the trial court abused its discretion in denying Mr. DeBoe's motion seeking to set aside the default judgment.

2. Whether proof of service by "unclaimed" mail is effective when the mailing did not bear the proper amount of postage.

3. Whether the summons issued on January 23, 2013, is voidable because the return from the United States Postal Service showing the mailing to be unclaimed was not sent until February 26, 2013.

4. Whether Mr. DeBoe should be permitted to present a meritorious defense to Ms. Petersen's claims.

III. Standard of Review

Regarding review of a default judgment, this Court has previously elucidated:

The decision to enter a default judgment is reviewed for abuse of discretion. See Patterson v. Rockwell Int'l, 665 S.W.2d 96, 100 (Tenn. 1984). Similarly, motions to set aside default judgments are addressed to the trial court's discretion. See Moore v. Palmer, 675 S.W.2d 192, 194 (Tenn. Ct. App. 1984); Henson v. Diehl Machines, Inc., 674 S.W.2d 307, 310 (Tenn. Ct. App. 1984). A trial court's denial of a motion to set aside a default judgment, like the decision to enter a judgment by default, will not be reversed absent an abuse of discretion. See Nelson v. Simpson, 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991); see also Patterson, 665 S.W.2d at 100-01. Thus, our role is to determine whether the trial court abused its discretion.

A party seeking to have a lower court's holding overturned on the basis of abuse of discretion undertakes a heavy burden. The abuse of discretion standard is intended to constrain appellate review and implies "less intense appellate review and, therefore, less likelihood of reversal." BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at * 2 (Tenn. Ct. App. July 13, 1988) (no Tenn. R. App. P. 11 application filed). As a general principle, an appellate court will not reverse a decision that lies within the discretion of the trial court unless it affirmatively appears that the lower court's decision was against logic or reasoning and caused injustice to the complaining party. See Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). The fact that a decision is discretionary with a trial court necessarily implies that the trial court has a choice of alternatives among a range of acceptable ones; the reviewing court's job is to determine whether the trial court's decision is within the range of acceptable alternatives, given the applicable legal principles and the evidence in the case. See BIF, 1988 WL 72409, at * 3.

State ex rel. Jones v. Looper, 86 S.W.3d 189, 193-94 (Tenn. Ct. App. 2000). Further, this Court has explained:

Trial courts should grant relief whenever any reasonable doubt exists concerning whether the default judgment should be set aside. Keck v. Nationwide Sys., Inc., 499 S.W.2d 266, 267 (Tenn. Ct. App. 1973). They should also grant relief when the plaintiff has failed to comply with required procedural safeguards. See Deutz-Allis Credit Corp. v. Smith, 117Idaho 118, 120, 785 P.2d 682, 684 (Idaho Ct. App. 1990).

Nelson v. Simpson, 826 S.W.2d 483, 485-86 (Tenn. Ct. App. 1991).

IV. Propriety of Default Judgment

Mr. DeBoe asserts that the trial court abused its discretion in denying his motion to set aside the default judgment entered against him. Ms. Petersen contends that service of process was properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11), and upon hearing, the trial court determined that Mr. DeBoe was evading service. Ergo, Ms. Petersen posits that the trial court did not abuse its discretion in refusing to set aside the default judgment. Motions seeking to set aside a default judgment are controlled by Tennessee Rule of Civil Procedure 55.02, which provides:

For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02.

Tennessee Rule of Civil Procedure 60.02 provides for relief, "upon such...