Tennessee Teachers Credit Union v. Orr

TENNESSEE TEACHERS CREDIT UNION,)
)
Plaintiff/Appellee, ) Davidson Circuit
) Trial No. 95C-3004
)
VS. )
)
ANITA ORR, ) Appeal No.
) 01A01-9701-CV-00005
Defendant/Appellant. )
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
July 18, 1997
APPEALED FROM THE CIRCUIT COURT Cecil W. Crowson
OF DAVIDSON COUNTY, Appellate Court Clerk
AT NASHVILLE, TENNESSEE
HONORABLE WALTER C. KURTZ, JUDGE
ANITA ORR
P.O. Box 198152
Nashville, TN 37219
PRO SE FOR DEFENDANT/APPELLANT
T. LARRY EDMONDSON, #5601
808 Broadway, Second Floor
Nashville, TN 37203
ATTORNEY FOR PLAINTIFF/APPELLEE
APPEAL DISMISSED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE,
TENNESSEE TEACHERS CREDIT UNION,)
)
Plaintiff/Appellee, ) Davidson Circuit
) Trial No. 95C-3004
VS. )
)
ANITA ORR, ) Appeal No.
) 01A01-9701-CV-00005
Defendant/Appellant. )
O P I N I O N
This appeal is from a judgment in favor of the captioned plaintiff in a suit to recover the
amount due upon a loan secured by a lien upon an automobile. This background and nature of the
judgment under review are as follows:
On August 18, 1995, the plaintiff caused to be issued an “Immediate Possession Warrant”
from the General Sessions Court. The warrant contained the following oath:
I, T. Larry Edmondson, Plaintiff(s), Plaintiff’s
attorney, do hereby make oath that, according to the affiant’s
information and belief, the Plaintiff is entitled to the
possession of 1993 Chevy Camero (sic), VIN
#2G1FP22P9P2103267, the value of which is $10,500.00,
because: breach of contract.
A copy of any writing upon which the Plaintiff’s right
of possession is founded is attached hereto.
The Defendant has or detains the property, which was
not subject to such seizure, detention, or execution, wherefore
Plaintiff demands the possession thereof.
I further make oath that I am entitled to a Writ of
Possession upon the filing of this warrant because:
UNDERLINE APPLICABLE CLAUSE) (1) At least five
days prior to the filing of this warrant I gave Defendant
notice, together with a copy of this warrant and the
attachments hereto, by certified mail, that I would appeal
before the Metropolitan General Sessions Court of Davidson
County, Tennessee, in Courtroom 11, Ben West Municipal
Building, 100 James Robertson Pkwy. On August 18, 1995 at
9:00, which notice has either been received by the Defendant
or was mailed to him at the address shown in the attached
contract.
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(2) (a) That the property involved herein was obtained by
fraud, misrepresentation, or theft, or that the Defendant is (b)
concealing the property, (c) likely to remove it from the
jurisdiction of the Court, (d) likely to dispose of the property,
(e) endangering the property by unusually hazardous use or,
(f) seriously impairing the Plaintiff’s security in the property.
Date: 8-18-1995
(Signature) (Signature)
Affiant Deputy Clerk
Although the oath states that a copy of the paper writing supporting plaintiff’s right to
immediate possession is attached to the oath, such a writing is not included in the record before this
Court. However, the record does contain a certificate of title bearing the following notation:
Date of first security interest 3-25-94
First lien holder
Tennessee Teachers Credit Union
No other evidence of “right to immediate possession” is found in said certificate.
The warrant also contains a “Fiat” dated August 18, 1995, and reading is as follows:
FIAT
TO THE CLERK OF THE METROPOLITAN GENERAL
SESSIONS COURT OF DAVIDSON COUNTY:
Upon the filing of the foregoing Warrant and upon the
Plaintiff(s) giving bond as required by law in the penal sum
of $10,500.00 Dollars, you will issue a Writ of Possession
directing the Sheriff to take possession of the within described
property and deliver it to the Plaintiff(s) and you will
command the Sheriff to summon the Defendant(s) to appear
and answer this Warrant at such time as may be fixed, but
within ten days of the date of service.
Entered: 8-18-1995
(Signature)
Judge Division ____ Metropolitan General Sessions Court
A “Writ of Possession” was issued by the Clerk on August 18, 1995.
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The judgment, entered on August 31, 1995, reads as follows:
Judgment for the Plaintiff for $0 and the costs of this suit, and
for the possession of the property described in the warrant.
Unless Plaintiff has already secured possession thereof, the
officer is directed to take the property described in the warrant
out of the possession of the Defendant(s) and deliver the same
to the Plaintiff(s). The Plaintiff(s) shall dispose of said
property in accordance with the applicable provisions of the
Uniform Commercial Code and shall notify the Defendant(s)
the amount to be credited against this judgment prior to the
issuance of any Writ of Execution.
Entered: 8-31-95
(Signature)
Judge, Division IV, Metropolitan General Sessions Court
The judgment bears the following notation:
From which judgment deft prayed an appeal to the
Circuit Court, which is granted upon Oath .
Entered: 9-8-95
(Signature)
Judge, Division IV Metropolitan General Sessions Court
On June 5, 1996, the following order was entered by the Circuit Court:
JUDGMENT
This cause came on to be heard on May 1, 1996, upon
the testimony of witnesses, proof submitted and argument of
counsel, it is the opinion of this Court that a Judgment be
entered against the Defendant, Anita Orr, in the amount of
$18,227.26 plus a reasonable attorney’s fees in the amount of
$750.00 plus costs of this cause all for which execution may
issue after the Plaintiff sells the 1993 Chevrolet Camaro
which secures the indebtedness owned by the Defendant in
accordance with the contract which gives rise to the Plaintiff’s
rights and the Uniform Commercial Code, and it further
appears that the Defendant shall be given notice of the
amount received from said sale and execution on the
deficiency shall not issue for a period of 30 days while this
Court retains jurisdiction over this matter so that the
Defendant, Anita Orr, may challenge the reasonableness of
the sale conducted by the Plaintiff.
Accordingly, it is so ORDERED.
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An order that adjudicates fewer than all the claims or the rights and liabilities of all the
parties is not enforceable and is subject to revision at any time before entry of final judgment
adjudicating all the claims, rights and liabilities of the parties. T.R.A.P. Rule 3(a), T.R.C.P. Rule
54.02
The above quoted order expressly reserved the question of the reasonableness of the sale of
the chattel and the disposition or application of the proceeds. It was therefore not a final, appealable
judgment.
This appeal is dismissed without prejudice to a further appeal after the entry of a final,
appealable judgment. Costs of this appeal are taxed against the plaintiff/appellant. In event of a
further appeal, the appellant may move this Court to consolidate the record of the present appeal with
that of future proceedings to avoid duplication of expenses.
APPEAL DISMISSED.
_____________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
SAMUEL L. LEWIS, JUDGE
_____________________________________
BEN H. CANTRELL, JUDGE
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