Town & Country Jewelers, Inc. v. Jessica Lynn Trotter aka Jessica Lynn Trotter-Lawson

07/27/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 27, 2017 Session
TOWN & COUNTRY JEWELERS, INC., ET AL. v. JESSICA LYNN
TROTTER AKA JESSICA LYNN TROTTER-LAWSON
Appeal from the Chancery Court for Shelby County
No. CH-03-0204-2 Jim Kyle, Chancellor
___________________________________
No. W2016-02055-COA-R3-CV
___________________________________
Judgment creditors appeal the denial of their motion to extend a judgment pursuant to
Rule 69.04 of the Tennessee Rules of Civil Procedure. Although we reverse the trial
court’s ruling that it lacked jurisdiction over judgment creditors’ motion, we affirm the
trial court’s decision to deny the motion where it was not filed “[w]ithin ten years from
the entry of [the underlying] judgment[,]” as required by Rule 69.04.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
in Part; Affirmed in Part; and Remanded
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER and BRANDON O. GIBSON, JJ., joined.
Geoffrey G, Gaia, Memphis, Tennessee, for the appellants, Town & Country Jewelers,
Inc., Linda L. Rozen, and Doron Rozen.
Thomas L. Parker, and Mitchell S. Ashkenaz, Memphis, Tennessee, for the appellee,
Jessica Lynn Trotter-Lawson.
OPINION
Background
On January 31, 2003, Town & Country Jewelers, Inc. (“Town & Country”), Linda
L. Rozen, and Doron Rozen (collectively, “Appellants”) filed suit against Jessica Lynn
Trotter-Lawson (“Appellee”) and Andrew Timothy Sheriff (together with Appellee,
“Defendants”). The complaint alleged that the Defendants had misappropriated over
$100,000.00 from Appellants while Appellee was employed by Town & Country. On
April 9, 2003, the trial court granted Appellants a default judgment against Appellee.
Thereafter on April 23, 2003, Appellants and Appellee entered into a consent judgment
whereby Appellants were awarded a judgment of $493,685.81 against Appellee.
Eventually a default judgment was also entered against Mr. Sherriff in the amount of
$519,357.47. On this day, August 11, 2003, the underlying action was fully adjudicated.
Nearly thirteen years later, on June 20, 2016, Appellants filed separate motions
requesting scire facias to revive the judgments against Defendants. Only the motion to
renew filed against Appellee is at issue in this case. On August 5, 2016, Appellee filed a
response to Appellants’ motion raising the affirmative defense of the expiration of the
statute of limitations.
After a hearing, the trial court entered an order on August 24, 2016, denying
Appellants’ request to revive the judgment against Appellee. Therein, the trial court
rejected Appellants’ argument that Appellee’s failure to respond to their motion within
thirty days required the trial court to grant their motion. The trial court further concluded
that it lacked jurisdiction over the matter because Appellants failed to act within the
statutory ten-year period pursuant to Tennessee Code Annotated section 28-3-110(a)(2).
The trial court designated its order as final and appealable. Appellants thereafter
appealed.
Issues Presented
Appellants raise three issues concerning the trial court’s denial of their motion to
extend the judgment against Appellee. In our view, however, Appellants’ issues may be
summarized as a single issue: Whether the trial court correctly denied Appellants’ motion
to extend the judgment against Appellee. Appellee also requests damages for a frivolous
appeal.
Discussion
I.
In this case, Appellants appeal the trial court’s denial of their motion to extend the
2003 judgment. The trial court’s decision to deny Appellants’ motion to extend the
judgment was based on an interpretation of the Tennessee Rules of Civil Procedure. As
such, this case presents a question of law, which we review de novo, with no presumption
of correctness. Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009).
Rule 69.04 of the Tennessee Rules of Civil Procedure governs the procedure for
obtaining extension of a previously awarded judgment. Rule 69.04 currently provides:
Within ten years from the entry of a judgment, the creditor whose judgment
remains unsatisfied may file a motion to extend the judgment for another
-2-
ten years. A copy of the motion shall be mailed by the judgment creditor to
the last known address of the judgment debtor. If no response is filed by the
judgment debtor within thirty days of the date the motion is filed with the
clerk of court, the motion shall be granted without further notice or hearing,
and an order extending the judgment shall be entered by the court. If a
response is filed within thirty days of the filing date of the motion, the
burden is on the judgment debtor to show why the judgment should not be
extended for an additional ten years. The same procedure can be repeated
within any additional ten-year period.
The above language reflects recent changes to the Rule providing that, where the party
defending against the motion files no response within thirty days, “the motion shall be
granted without further notice or hearing, and an order extending the judgment shall be
entered by the court.” Previously, the trial court was required to conduct a show cause
hearing regardless of whether a timely response to the motion was filed. As the Advisory
Commission Comments note:
The revision replaces past practice of a show cause hearing. The revised
procedure, subsequent to the filing of a motion by the judgment creditor, is
the alternative of: (1) no hearing if the judgment debtor files no response to
the motion in 30 days and the extension shall be automatically granted; or
(2) if the judgment debtor files a response to the motion in 30 days, the
extension is not automatically granted which provides each party an
opportunity to set a hearing. If a hearing is convened, it is at that point that
the revision maintains prior practice of placing the burden on the judgment
debtor to show why the judgment should not be extended for an additional
ten years.
Tenn. R. Civ. P. 69.04, 2016 Adv. Comm. cmts. The comments further elucidate the
purpose of Rule 69.04: “The extension procedure set out in Rule 69.04 allows the
judgment creditor to avoid having the judgment become unenforceable by operation of
[Tennessee Code Annotated] Section 28-3-110(a)(2)[.]” Tenn. R. Civ. P. 69.04, 2016
Adv. Comm. cmts. Section 28-3-110(a)(2), in turn, provides a ten-year statute of
limitations on “[a]ctions on judgments and decrees of courts of record of this or any other
state or government[.]” Tenn. Code Ann. 28-3-110 (noting some exceptions not
applicable in this case). With regard to the ten-year limitations period under section 28-3-
110(a)(2), the Tennessee Supreme Court has explained:
The statute of limitations involved in the present case allows ten years from
the time the cause of action accrues. Apparently the legislature considered
this a sufficient length of time for an action to be brought on the judgment
as originally rendered. Under our practice and under other provisions of the
Code it is a very simple matter to renew this judgment before the ten years
expires by either the suit on the judgment or by scire facias.
-3-
Shepard v. Lanier, 192 Tenn. 608, 241 S.W.2d 587, 591–92 (Tenn. 1951).
Appellants argue that the new language of Rule 69.04 mandates that, where a
motion is filed under Rule 69.04 and no timely response in opposition is filed, the trial
court is required to grant the motion to extend. Because Appellee failed to respond to
Appellants’ motion to extend within the required time period, Appellants contend that the
trial court erred in denying their motion to extend. In response, Appellee argues that the
plain language of Rule 69.04 requires that the motion to extend be filed “[w]ithin ten
years from the entry of a judgment,” after which time, the trial court is deprived of
jurisdiction to entertain a motion to extend by the expiration of the ten-year statute of
limitations. Because Appellants’ motion was filed over twelve years after the judgment
against Appellee was finalized, Appellee asserts that Appellants’ motion was properly
denied as untimely.
To resolve this dispute over the proper interpretation of Rule 69.04, we apply the
familiar rules of statutory construction. See Thomas, 279 S.W.3d at 261 (“Although the
rules of civil procedure are not statutes, the same rules of statutory construction apply in
the interpretation of rules.”) (citing Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn.
1980)). As recently explained by our supreme court:
When determining the meaning of statutes [or rules], our primary goal “is
to carry out legislative intent without broadening or restricting the statute
beyond its intended scope.” Johnson v. Hopkins, 432 S.W.3d 840, 848
(Tenn. 2013) (quoting Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895
(Tenn. 2011)). We presume that every word in a statute [or rule] has
meaning and purpose and that each word’s meaning should be given full
effect as long as doing so does not frustrate the [drafter’s] obvious
intention. Id. Words “‘must be given their natural and ordinary meaning in
the context in which they appear and in light of the statute’s [or rule’s]
general purpose.’” Id. (quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362,
368 (Tenn. 2012)). When a statute’s [or rule’s] meaning is clear, we “‘apply
the plain meaning without complicating the task’ and enforce the statute as
written.” Id. (quoting Lind, 356 S.W.3d at 895).
Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015).
We begin with the trial court’s ruling that it lacked jurisdiction under Rule 69.04
and Tennessee Code Annotated section 28-3-110(a)(2) to extend the judgment in this
case. See Tenn. R. App. P. 13(b) (requiring this Court to consider whether the trial court
had subject matter jurisdiction over the action). “The lack of subject matter jurisdiction is
so fundamental that it requires dismissal whenever it is raised and demonstrated.”
Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999). “Thus,
when an appellate court determines that a trial court lacked subject matter jurisdiction, it
must vacate the judgment and dismiss the case without reaching the merits of the appeal.”
-4-
First American Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 135, 141 (Tenn. Ct.
App. 2001).
Here, the advisory committee comments to Rule 69.04 indicate that the purpose of
Rule 69.04 is to allow a judgment creditor to avoid the statute of limitations under section
28-3-110(a)(2). This Court has previously held that the section 28-3-110(a)(2) limitation
period constitutes a statute of limitations, rather than a statute of repose. See, e.g., Scott v.
White, No. M2015-02488-COA-R3-CV, 2017 WL 2998869, at *1 (Tenn. Ct. App. July
14, 2017) (describing the section 28-3-110(a)(2) limitation period as a “statute of
limitations”); Cook v. Alley, 419 S.W.3d 256, 260 (Tenn. Ct. App. 2013) (same).
According to the Tennessee Supreme Court, however, the expiration of a statute of
limitations is not jurisdictional, but may be waived by a party’s failure to timely raise the
affirmative defense. As our supreme court has explained:
True statutes of limitations do not constitute grants of subject matter
jurisdiction but rather restrict the powers of a court to act on a claim over
which it has subject matter jurisdiction. See Pugh v. Brook (In re Pugh),
158 F.3d 530, 533–34 (11th Cir. 1998). A statute of limitations defense
challenges the sufficiency of a particular claim, not the subject matter
jurisdiction of the court in which the claim is filed. See Grass Valley
Terrace v. United States, 69 Fed. Cl. at 347. Thus, unlike challenges to
subject matter jurisdiction which cannot be waived, defenses based on the
statute of limitations are affirmative defenses that can be waived unless
they are specifically pleaded.
Estate of Brown, 402 S.W.3d 193, 198–99 (Tenn. 2013) (citing State v. Pearson, 858
S.W.2d 879, 887 (Tenn. 1993) (“[W]e conclude that the better reasoned rule is to treat the
statute of limitations as waivable, rather than jurisdictional, but to require that the waiver
be knowingly and voluntarily entered.”)).
The underlying action upon which this judgment was awarded involved claims for
conversion and misappropriation. The complaint alleged specific, liquidated damages for
unauthorized charges to an American Express card, as well as forged checks. See Tenn.
Code Ann. § 16-11-102 (providing the chancery court with subject matter jurisdiction
over “all civil causes of action, triable in the circuit court, except for unliquidated
damages for injuries to person or character”); PNC Multifamily Capital Institutional
Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 558 (Tenn. Ct.
App. 2012) (quoting 22 Am. Jur. 2d Damages § 465 (2012) (“A liquidated claim exists if
the plaintiff has made a demand for a specific sum that the defendant allegedly
unlawfully retained, because such a claim is certain and known to the defendant before
the suit is filed.”)). “‘[W]here the chancery court has obtained jurisdiction over some
portion of or feature of a controversy it may grant full relief in the same manner as could
a court of law.’” PNC Multifamily Capital, 387 S.W.3d at 558 (quoting Pruitt v.
Talentino, 62 Tenn. App. 484, 464 S.W.2d 294, 296 (Tenn. Ct. App. 1970)).
-5-
Additionally, this Court has held that an action to extend a judgment is merely an effort
by the judgment creditor to “prolong[] the judgment’s existence an additional ten
years[,]” rather than an initial action to obtain a new judgment. Cook, 419 S.W.3d at 260.
Because the trial court had subject matter jurisdiction over the initial action and the
expiration of the statute of limitations does not deprive the trial court of jurisdiction, the
trial court erred in holding that it was deprived of subject matter jurisdiction due to the
expiration of the section 28-3-110(a)(2) statute of limitations.
We next address Appellants’ argument that the untimeliness of their motion is not
a bar to reviving the judgment where the Appellee failed to respond to the motion within
the time prescribed by Rule 69.04. As previously discussed, the current version of Rule
69.04 provides that where a debtor does not respond to a motion to extend within thirty
days, “the motion shall be granted without further notice or hearing.” There appears to be
no dispute that the plain language of Rule 69.04 would bar Appellants’ action if Appellee
had responded in opposition within thirty days of the filing of Appellants’ motion.
Indeed, this language, which was not altered by the 2016 amendment, has previously
been held to require that the judgment creditor file its motion to revive the judgment
within ten years of the entry of the judgment or else be “barred from enforcement[.]”
Rabbitt v. Mills, No. M2004-01103-COA-R3-CV, 2005 WL 2012774, at *5 (Tenn. Ct.
App. Aug. 22, 2005) (“Because the [creditors] failed to revive their judgment within the
ten-year statute of limitations, they are barred from enforcement of their judgment against
[the debtor].”). In Rabbitt, however, there appeared to be no dispute that the debtor
timely raised the statute of limitations as a defense to enforcement. Here, however,
Appellee failed to respond to Appellants’ motion within thirty days, as required by the
current version of Rule 69.04. Appellants therefore contend that their failure to file their
motion to revive for nearly three years after the time period allowed in Rule 69.04 is
excused by Appellee’s failure to respond to their motion for a period of approximately
fifteen days. See Estate of Brown, 402 S.W.3d at 199 (holding that the defense of the
expiration of the statute of limitations may be waived); Steed Realty v. Oveisi, 823
S.W.2d 195, 197 (Tenn. Ct. App. 1991) (citing Denny v. Webb, 199 Tenn. 39, 281
S.W.2d 698 (1955)) (“The rule in Tennessee is that if the statute of limitations is not
pleaded within the proper time and in the proper manner, it is deemed waived and cannot
be relied upon as a defense.”).
As an initial matter, we note that the above language relied upon by Appellants
stems from a 2016 amendment to Rule 69.04. Although the amendment was adopted by
the Tennessee Supreme Court on December 29, 2015, the amendment did not go into
effect until July 1, 2016. Here, Appellants filed their motion to revive the judgment on
June 20, 2016, and did not specifically reference either version of Rule 69.04. The
applicability of amended Rule 69.04 was discussed during the August 15, 2016 hearing,
however, and counsel for Appellee did not object to the application of amended Rule
69.04. Likewise, Appellee cites amended Rule 69.04 in its appellate brief. Generally,
“rules considered remedial or procedural in nature apply retroactively, not only to causes
-6-
of action arising before such acts become law, but also to all actions pending when the
law took effect, unless a contrary intention is indicated or immediate application would
produce an unjust result.” Bd. Of Prof’l Responsibility v. Love, 256 S.W.3d 644, 652
(Tenn. 2008). Because Appellee has not objected to the application of amended Rule
69.04, we assume for purposes of this appeal that it is applicable. But see In re Braxton
M., No. E2016-02172-COA-R3-PT, 2017 WL 2859806, at *13 (Tenn. Ct. App. July 5,
2017) (addressing the applicability of an amended statute notwithstanding both parties’
failure to argue that issue on appeal because of “the fundamental constitutional interest
involved”). As such, we proceed to consider this appeal utilizing the current language of
Rule 69.04.
In support of their argument that the current language of Rule 69.04 mandates
reversal of the trial court’s decision, Appellants cite a case decided by the Tennessee
Supreme Court more than a century ago—Rogers v. Hollingsworth, 95 Tenn. 357, 32
S.W. 197 (Tenn. 1895). In Rogers, the judgment creditor filed a motion on January 25,
1895, to revive a judgment rendered on February 2, 1885. Id. at 198. After the trial court
rendered a new judgment to reflect a credit, the debtor appealed, arguing, inter alia, that
“scire facias will not lie to revive a judgment until after 10 years from its date.” Id. The
Tennessee Supreme Court disagreed, holding instead that “after the lapse of 10 years the
judgment cannot be revived by scire facias over the plea of the statute of limitations,
there being nothing else in the case.” Id. The supreme court therefore affirmed the trial
court’s finding that the motion to revive was timely but modified the judgment to reflect
that it was merely a continuation of the original judgment, rather than a new judgment.
Id. The Rogers decision, however, is not dispositive in this case. Importantly, Rogers was
decided well before the adoption of the Tennessee Rules of Civil Procedure, much less
the amended version of Rule 69.04 that Appellant seeks to rely on here. See Thomas v.
Oldfield, 279 S.W.3d 259, 262 (Tenn. 2009) (“The Tennessee Rules of Civil Procedure
were adopted in 1970[.]”). As such, Rogers fails to illuminate whether a motion to revive
under amended Rule 69.04 should be granted where a creditor files its motion to revive
well outside the ten-year time period expressly included in the rule, but the debtor raises
the defense of the expiration of the statute of limitations beyond the thirty day time
period for filing a response.
Based on our review of the current version of Rule 69.04, however, we simply
cannot agree that Appellants’ motion to revive the judgment was timely even considering
Appellee’s delay in responding to the motion. Here, the first sentence of Rule 69.04 states
that a creditor may seek to extend its judgment “[w]ithin ten years from the entry of a
judgment[.]” While this language could suggest that the time limit applicable to motions
under Rule 69.04 is directory, rather than mandatory, our examination of the statute as a
whole belies this conclusion. See generally Stevens ex rel. Stevens v. Hickman Cmty.
Health Care Servs., Inc., 418 S.W.3d 547, 562 (Tenn. 2013) (“There is no universal test
by which directory provisions of a statute may be distinguished from mandatory
provisions.”) (citing 3 Norman J. Singer & J.D. Singer, Statutes and Statutory
-7-
Construction § 57:2 (7th ed. 2008)). A “statute [or rule] must be construed in its entirety,
and it should be assumed that the legislature used each word purposely and that those
words convey some intent and have a meaning and a purpose.” Eastman Chem. Co. v.
Johnson, 151 S.W.3d 503, 507 (Tenn. 2004) (citing Tennessee Growers, Inc. v. King,
682 S.W.2d 203, 205 (Tenn. 1984)). “It is our duty to construe the statute [or rule] so that
no part will be inoperative, superfluous, void or insignificant.” State v. Northcutt, 568
S.W.2d 636, 637–38 (Tenn. Crim. App. 1978).
Here, the judgment creditor’s ability to utilize the procedure under Rule 69.04 is
introduced with the caveat that the motion be filed “[w]ithin ten years from the entry of a
judgment[.]” As such, it appears that the debtor’s duty to respond within thirty days is
conditioned upon the motion to renew being timely filed. To allow a judgment creditor to
file its motion beyond this ten-year period would essentially render this time limitation
meaningless. Indeed, under Appellants’ interpretation of the rule, a judgment creditor’s
years-long delay in filing a motion to revive would be excused simply because the debtor
filed its response one day outside the thirty-day response period. Such a result borders on
the absurd. Our supreme court has directed Tennessee courts, however, “not [to] apply a
particular interpretation to a statute [or rule] if that interpretation would yield an absurd
result.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000) (citing State v. Legg, 9
S.W.3d 111, 116 (Tenn. 1999)).
Moreover, additional language in the statute supports our conclusion that the time
limit contained in Rule 69.04 is mandatory. As previously discussed, amended Rule
69.04 states that “[t]he same procedure can be repeated within any additional ten-year
period.” Tenn. R. Civ. P. 69.04 (emphasis added). As such, Rule 69.04 contemplates that
the procedure utilized both to initially extend a judgment and to do so thereafter be
initiated within consecutive ten-year periods. See Cook v. Alley, 419 S.W.3d 256, 260
(Tenn. Ct. App. 2013) (holding that an extension to a judgment under Rule 69.04 is
“tacked on” to the previous ten years, rather than the date of entry of the order granting
the extension). Indeed, the Tennessee Supreme Court has previously indicated that it is
not burdensome to require a creditor to “renew [a] judgment before the ten years
expires[.]” Shepard, 241 S.W.2d at 591–92 (emphasis added) (decided prior to the
adoption of the Tennessee Rules of Civil Procedure). By filing their motion well outside
the ten-year period, Appellants have clearly failed to comply with both the letter and the
spirit of Rule 69.04.
Although not directly dispositive of this issue, one recent case includes language
to support our conclusion. In Scott v. White, No. M2015-02488-COA-R3-CV, 2017 WL
2998869 (Tenn. Ct. App. July 14, 2017), the judgment creditor filed a motion on
September 9, 2014, to extend a judgment rendered on April 8, 2005. Id. at *1. Under the
prior procedure required by Rule 69.04,1 the trial court issued a show cause order
1
The prior version of Rule 69.04 applicable in Scott provided:
-8-
requiring the debtor, within thirty days, to show cause why the judgment should not be
extended. Id. Although there was an error with the original service of the show cause
order, the debtor undisputedly received notice on December 19, 2014. Id. Eight months
after receiving notice, the debtor filed a motion for relief from the order renewing the
judgment. Id. In fact, however, the trial court had yet to enter an order renewing the
judgment. Id. at *2. Ultimately, the trial court entered an order renewing the judgment
because the debtor had not timely responded to the show cause order, even after
obtaining notice. Id.
On appeal, the debtor challenged the trial court’s order on the basis that the order
renewing the judgment was not entered within ten years of the entry of the underlying
judgment. Id. at *3. We rejected this argument, relying in part on the advisory committee
comments to the current version of Rule 69.04:
For purposes of Rule 69.04, the proper focus is on the timing of the motion
to extend, not the court’s order extending the judgment. As long as a
motion to extend is filed “[w]ithin ten years from entry of a judgment,” as
is the case here, a judgment creditor may “avoid having the judgment
become unenforceable by operation of [Tennessee Code Annotated § 28-3-
110(a)(2)].” Tenn. R. Civ. P. 69.04 Advisory Comm. cmt. to 2016 revision;
see also In re Hunt, 323 B.R. 665, 669 (Bankr. W.D. Tenn. 2005) (“[I]t is
not essential that the debtor receive these pleadings within the ten-year
period, only that the renewal pleading be filed within that time.”). The rule
does not require the order extending the judgment for the additional ten-
year period to be entered within ten years from the entry of the judgment.
Scott, 2017 WL 2998869, at *3. As such, we suggested that the requirement to file a
motion to revive within ten years was “essential” to benefit from the procedure outlined
in Rule 69.04. In other words, because the judgment creditor’s motion to revive was filed
within ten years of the entry of the judgment, the debtor’s corresponding duty to timely
respond to the motion under Rule 69.04 was triggered. Without a timely filed motion to
renew, it therefore does not appear that the judgment creditor can rely on the procedure
outlined in Rule 69.04, including the requirement that the debtor timely respond lest the
renewal be granted.
Within ten years from entry of a judgment, the judgment creditor whose judgment
remains unsatisfied may move the court for an order requiring the judgment debtor to
show cause why the judgment should not be extended for an additional ten years. A copy
of the order shall be mailed by the judgment creditor to the last known address of the
judgment debtor. If sufficient cause is not shown within thirty days of mailing, another
order shall be entered extending the judgment for an additional ten years. The same
procedure can be repeated with any additional ten-year period.
Scott, 2017 WL 2998869, at *2 (citing Tenn. R. Civ. P. 69.05, in effect prior to July 1, 2016).
-9-
Based upon the plain language of Rule 69.04, as well as the foregoing authorities,
we hold that it is necessary for a judgment creditor to file its motion to renew a judgment
under Rule 69.04 “[w]ithin ten years from the entry of a judgment.” Once a timely
motion has been filed, the debtor’s duty to timely respond pursuant to Rule 69.04 is
triggered. Here, Appellants filed their motion to revive the 2003 judgment in 2016, well
beyond the ten-year time limit. As such, the trial court had no authority to renew the
judgment under Rule 69.04, and Appellee’s duty to respond was not triggered. The trial
court’s ruling denying the motion to renew is therefore affirmed.
II.
Appellee has requested an award of attorney’s fees for defending what she deems
a frivolous appeal. Under Tennessee Code Annotated section 27-1-122:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the
appeal.
“A frivolous appeal is one that is devoid of merit or has no reasonable chance of
success.” Selitsch v. Selitsch, 492 S.W.3d 677, 690 (Tenn. Ct. App. 2015), app. denied
(Tenn. Feb. 17, 2016) (citing Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct.
App. 2001)). 2. The statute, however, is to be “interpreted and applied strictly so as not to
discourage legitimate appeals.” Wakefield, 54 S.W.3d at 304. Although we have not
resolved this appeal in Appellants’ favor, we are unable to conclude that their appeal is
devoid of merit. Accordingly, we decline to award attorney’s fees pursuant to section 27-
1-122.
Conclusion
The judgment of the Shelby County Chancery Court is reversed in part, affirmed
in part, and remanded for further proceedings consistent with this Opinion. Costs of this
appeal are taxed to Appellants, Town & Country Jewelers, Inc., Linda L. Rozen, and
Doron Rozen, and their surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
- 10 -