Posting the proper bond in an eviction appeal in Tennessee is confusing and, sometimes, very expensive. Remember, though, if a landlord is granted an eviction judgment, the tenant can still have a valid appeal, even if the tenant doesn’t post the possessory bond required by Tenn. Code Ann. § 29-18-130(b)(2).
I thought this issue was settled–I was blogging about it 5 years ago–but it keeps coming up in circuit courts across Tennessee.
The Tennessee Court of Appeals issued an opinion yesterday, affirming this line of decisions, in Thomas v. Millen, W2019-00086-COA-R3-CV (Tenn. Ct. App., Dec. 19, 2019). This case cited the Court’s own recent, similar opinion at Belgravia Square, LLC v. White, No. W2018-02196-COA-R3-CV, 2019 WL 5837589 (Tenn. Ct. App. Nov. 7, 2019).
Long story short, the possessory bond is not jurisdictional, meaning the circuit court has jurisdiction to consider the issues, and an appeal remains valid despite the failure to post the § 29-18-130(b)(2) bond.
As a practical matter, most eviction appeals will die once the tenant loses the right to possession. But, not all. In that situation, the tenant could be dispossessed of the property, but the tenant can still challenge the landlord’s rights and, if successful, seek monetary damages against the landlord if the tenant wins.
That type of fight does happen. I’ve had an opposing party / tenant lose in Sessions, appeal to Circuit, lose possession in Circuit, but continue fighting my matter…all the way to the Supreme Court. The United States Supreme Court.
I posted a few years ago that a losing defendant in a detainer action isn’t required to post the “possessory” bond provided at Tenn. Code Ann. § 29-18-130(b)(2) in order to have a valid appeal.
While courts were split for years on this issue, the Tennessee Supreme Court’s December 2013 decision in Johnson v. Hopkins answered this question for good. In short, the defendant who fails to post the possessory bond still has a valid appeal, but the defendant has no protection from a Writ of Restitution while the appeal is pending.
In Davidson County Circuit Court, if a general sessions detainer judgment was appealed without that bond, the Court Clerk’s website actually had a form that would allow the landlord to immediately issue a Writ, no matter if the appeal was still under consideration.
And, as you might suspect, that’s a big deal, since what’s the point of fighting the landlord’s eviction if you’re not going to stay in the premises? My guess is that it wasn’t a matter of strategy, but, instead, an issue of ignorance by the litigants about how detainer appeals work.
I also know, from my experience, that it’s a quite a surprise when an appealing defendant discovers this mistake…which used to happen when the Sheriff showed up to execute on the Writ with movers in tow.
Potentially in response to this, the Judges of the Circuit Court recently entered an Order entered on February 24, 2017 that, for any Writ of Restitution filed with the Clerk while an appeal is pending, the Clerk must set a review hearing on the Writ before issuance of the Writ.
This is an interesting practice, that’s not based on the statutes or rules of procedure. I’d bet it’s based on the Judges getting sick of dealing with the frantic motions to quash filed after the Sheriff shows up at somebody’s door. All in all, it’s a good, practical procedure.
In Davidson County, I file a Cost Bond with every new lawsuit. A “Cost Bond” is given pursuant to Tenn. Code Ann. § 20-12-120 and means that the plaintiff’s lawyer is acting as surety for payment of all court costs in the matter.
These costs generally run from $200 to $500 and, of course, it’s the client’s obligation to pay; nevertheless, the Clerk wants the lawyer to make sure those costs get paid. If, at the end of the case, the court costs aren’t paid, our Clerk gives it about 6 months, then they send the attorney a bill under the Cost Bond.
No big deal, right? (Well, it’s sort of a big deal. I never sign as “David Anthony”–I sign them as my law firm, “Bone McAllester Norton”).
Recently, I was blown away by seeing an attorney sign a different type of bond. This attorney signed a “Surety Bond,” in the mid-five-figures-range, pursuant to Tenn. Code Ann. § 29-18-130(b)(2).
If you don’t know that statute, that’s the detainer appeal bond statute, which requires a defendant who appeals an eviction judgment to post a bond in the amount of one year’s rent (in order to remain in possession of the property). Instead of posting a cash bond, one option is to have two Sureties guaranty payment of any damages and accruing rent.
So, in the event that the defendant loses the appeal, this attorney is personally liable for the damages. This defendant hasn’t been paying her mortgage, and it’s quite possible that she isn’t going to pay an entire year’s rent on the property. But guess who will be liable for the entire debt?
Yep. This attorney. For the entire amount. Watch what you sign.