Dannie Joe Christmas v. Ralph Moore and Linda Moore ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
July 6, 1998
DANNIE JOE CHRISTMAS and )
SHARON CHRISTMAS, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiffs/Appellees, ) Roane Law No. 11303
)
vs. )
) Appeal No. 03A01-9705-CV-00188
RALPH MOORE and LINDA MOORE, )
)
Defendants/Appellants. )
APPEAL FROM THE CIRCUIT COURT OF ROANE COUNTY
AT KINGSTON, TENNESSEE
THE HONORABLE RUSSELL SIMMONS, JUDGE
For the Plaintiffs/Appellees: For the Defendants/Appellants:
Greg Leffew Linda Moore and Ralph Moore, Pro Se
Rockwood, Tennessee Harriman, Tennessee
AFFIRMED
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
ALAN E. HIGHERS, J.
OPINION
This case involves the possession of real estate after foreclosure proceedings. After a bench
trial, the trial court determined that Appellees were entitled to possession of the real estate in
question. We affirm.
On December 17, 1984, Appellants Ralph Moore and Linda Moore (“the Moores”) financed
the purchase of a home in Harriman, Tennessee, through the United States Department of
Agriculture’s Farmers Home Administration (“FHA”). The debt was evidenced by a deed of trust
introduced at trial. The Moores became delinquent on their mortgage, and in August, 1996, the FHA
instructed its Roane County office to initiate foreclosure proceedings against the Moores. The FHA
published the Notice of Sale in September, 1996. At the October 4, 1996 foreclosure sale, Appellees
Dannie Joe Christmas and Sharon Christmas (“the Christmases”) purchased the real estate in
question.
On October 18, 1996, the Christmases filed an unlawful detainer suit against the Moores in
the Roane County General Sessions Court, seeking possession of the real estate. The General
Sessions Court entered a judgment awarding possession of the real estate to the Christmases. The
Moores appealed the judgment to the Roane County Circuit Court for a trial de novo. The Moores
posted a bond to permit them to remain in possession of the real estate while the appeal was pending.
At the trial in the Roane County Circuit Court, the Moores offered no evidence of a
possessory interest in the real estate. Instead, their evidence focused on the condition of the real
estate. The Christmases established their ownership of the property and sought a judgment against
the Moores for rental payments from October, 1996, through the date of trial. The trial court
awarded the Christmases possession of the real estate and also awarded them $865.53 for the rental
payments for the period from November 1, 1996 until February 14, 1997. From this decision, the
Moores now appeal.
On April 24, 1997, the trial court issued a Writ of Possession. On April 30, 1997, the Moores
filed a “Motion for Emergency Conjunction” requesting that the execution of the judgment and
eviction be stopped. The trial court treated the Moores’ motion as a motion to enjoin execution of
the Writ of Possession, or in the alternative, as a motion for stay of execution. After a hearing, the
trial court denied the Moores’ motion. Thereafter, the Moores filed, inter alia, various motions to
obtain the trial judge’s notes and to declare the Writ of Possession null and void. The trial court
dismissed these motions by order entered May 15, 1997.
The Moores did not enumerate the issues raised on appeal. However, upon review of the
briefs of the parties, it appears to the Court that the following issues have been raised: (1) whether
the Christmases were entitled to a judgment against the Moores for possession of the real estate; and
(2) whether the Moores’ notice of appeal constituted a stay of execution of the trial court’s judgment.
Under Rule 13(d) T.R.A.P., this Court’s review is de novo upon the record, accompanied
by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is
otherwise.
There is no dispute in this case that the Moores executed a valid mortgage securing the FHA
and that the Moores later defaulted on that mortgage. The record indicates that the FHA followed
the proper procedures in this State for foreclosure on real property, including appropriate notice by
publication. The Deed of Trust executed between the FHA and Ralph and Linda Moore provided
in relevant part:
(20) Should the property be sold by the Trustee as aforesaid. . .(d)
borrower shall give up and deliver immediate possession of the
property to the purchaser thereof or be and become a tenant
unlawfully holding over and subject to summary dispossession as
provided by law for such cases. . . .
Under the terms of the Deed of Trust, the Moores waived any right to redemption of the real
property. The Deed of Trust specifically provided:
(21) Borrower agrees that the Government will not be bound by any
present or future State laws. . .(d) allowing any right of redemption
or possession following any foreclosure sale. . . .
The Christmases successfully bid on the real property at public auction on October 4, 1996,
and the Trustee’s Deed was delivered to them on October 18, 1996. Upon the purchase, the
Christmases became the lawful owners of the real property, and the Moores were in unlawful
possession of the property. The purchaser under a trust deed takes absolute title where the right of
redemption is waived, and the Moores were divested of any right or title to the property. See Swift
v. Kirby, 737 S.W.2d 271, 276 (Tenn. 1987).
On October 18, 1996, the Christmases initiated an unlawful detainer suit against the Moores
in the General Sessions Court. Where the trust deed embodies the contract establishing the relation
of landlord and tenant between the mortgagor and the purchaser at the foreclosure sale, a
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constructive entry by the purchaser, enabling him to maintain an unlawful detainer suit, attaches as
soon as he acquires title. Metropolitan Life Ins. Co. v. Moore, 167 Tenn. 620, 72 SW.2d 1050, 1051
(1934); Griffith v. Brackman, 97 Tenn. 387, 37 S.W. 273, 274 (1896). The Deed of Trust executed
by the Moores stated that they would “be and become a tenant unlawfully holding over” in the event
of foreclosure, thus evidencing the landlord-tenant relationship.
It is undisputed that the Christmases had absolute title and right to and lawful possession of
the real property as of October 18, 1996. The Moores presented no evidence authorizing them to
occupy the real property after the foreclosure sale, nor did they seek to enjoin or set aside the
foreclosure sale. Under these circumstances, the trial court did not err in awarding possession of the
real property to the Christmases.
The Moores also assert on appeal that the filing of the notice of appeal stayed execution of
the judgment. Rule 62.01 of the Tennessee Rules of Civil Procedure provides:
[E]xcept as otherwise provided in this rule, no execution shall issue
upon a judgment, nor shall proceedings be taken for its enforcement
until the expiration of 30 days after its entry.
The trial court entered its judgment on February 26, 1997, and the Moores timely filed the notice of
appeal on March 25, 1997.
Under Rule 62.01, the February 26 judgment became final on March 28, 1997, 30 days after
entry of the judgment. The filing of a notice of appeal, without more, does not stay execution of the
judgment. Underwood v. Liberty Mutual Ins. Co., 782 S.W.2d 175, 177 (Tenn. 1989). In order to
obtain a stay of execution, Appellants must move the trial court for a stay and give an appropriate
bond. Rule 62.04 of the Tennessee Rules of Civil Procedure provides:
[E]xcept as otherwise provided in Rule 62.01, when an appeal is
taken the appellant by giving a bond may obtain a stay. The bond
may be given at or after the time of filing the notice of appeal. The
stay is effective when the bond is approved by the trial court.
During the 30 day period following entry of the judgment, the Moores did not attempt to
obtain a stay of execution of the judgment. Consequently, on April 24, 1997, the trial court entered
the Writ of Possession, and the Christmases enforced the Writ and evicted the Moores from the
property. Following issuance of the Writ of Possession, the Moores filed the “Motion for
Emergency Conjunction.” The trial court treated it as a motion to enjoin execution of the Writ of
Possession and, in the alternative, as a motion for stay of execution. After a hearing, the trial court
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denied the motion, finding that the Moores had not requested a stay of execution of judgment during
the 30 day period following its entry or before issuance of the Writ of Possession. The trial court
also found that the Moores had not shown good cause to stay execution of the judgment. On May
8, 1997, the Moores filed a motion to declare the Writ of Possession null and void, which the trial
court dismissed by order entered May 15, 1997.
The Moores maintain that the bond they posted to appeal the action from the General
Sessions Court to the Circuit Court should also stay execution of the Circuit Court’s judgment while
on appeal to this Court. However, the bond submitted by the Moores in the General Sessions Court
to stay execution of the General Sessions judgment while on appeal to the Circuit Court expired
upon entry of the Circuit Court’s judgment. Bell v. Smith, 185 Tenn. 11, 15-16, 202 S.W.2d 654,
656 (1947); Robertson v. Penn. Mut. Life Ins. Co., 22 Tenn. App. 387, 389, 123 S.W.2d 848, 850
(1938). Moreover, Tennessee Code Annotated §§ 29-18-128 and 29-18-129 pertain only to appeals
from the General Sessions Court to the Circuit Court and are not applicable to appeals from the
Circuit Court to this Court.
Appellants did not request a stay of execution pending appeal within 30 days after entry of
the trial court’s judgment on February 26, and at no time posted a bond for stay. Therefore, the
Circuit Court’s judgment became final on March 28, 1997, and the trial court properly issued the
Writ of Possession on April 24, 1997.
The decision of the trial court is affirmed. Costs on appeal are taxed to Appellants, for which
execution may issue if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P. J., W.S.
ALAN E. HIGHERS, J.
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