Carol Ann Graybeal v. Howell H. Sherrod, Jr.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 27, 2012 Session

CAROL ANN GRAYBEAL v. HOWELL H. SHERROD, JR.

Appeal from the Circuit Court for Washington County

No. 22609 Thomas R. Frierson, II, Chancellor

No. E2011-01825-COA-R3-CV-FILED-SEPTEMBER 27, 2012

In 2003, Carol Ann Graybeal (“the Client”) filed this action against her former attorney and

lover, Howell H. Sherrod, Jr. (“the Lawyer”), after he refused to give her an accounting

regarding an investment she had made through him. In response to her demand for an

accounting, he had accused her of stealing and damaging property, the value of which

allegedly exceeded the value of her investment. In the answer later filed to her suit, he

demanded a setoff; his answer was joined with a counterclaim seeking relief with respect to

the stolen and damaged goods. Six years later, the case came on for trial. The court entered

its first judgment on April 23, 2010 (“the April 2010 judgment”). The court found in favor

of each of the parties regarding various of their respective claims, with the result that the

Lawyer received a net judgment of $10,760.13, before interest. The Client filed a motion to

alter or amend the April 2010 judgment. The court entered a second, almost identical,

judgment on September 15, 2010 (“the September 2010 judgment”), in which it denied the

Client’s motion. The Lawyer later filed a motion for discretionary costs as well as a motion

to alter or amend the September 2010 judgment. In March 2011, the Client filed a motion

for relief from the September 2010 judgment. In an order entered August 5, 2011 (“the

August 2011 judgment”) and designated as “final,” the court granted the motion for

discretionary costs in part, denied the Lawyer’s motion to alter or amend, and granted the

Client’s motion for relief with respect to the calculation of prejudgment interest and the

taxing of costs. The Lawyer appeals from the August 2011 judgment. The Client attempts

to raise several issues of her own. We conclude that the merits of one of the earlier

judgments – the September 2010 judgment – are not before us because what the Lawyer has

labeled as a “motion to alter or amend” that judgment is not, despite its label, one of the

motions recognized by Tenn. R. Civ. P. 59.01 as having the effect of “extending the time for

taking steps in the regular appellate process.” We find no reversible error in the August 2011

judgment. Accordingly, we affirm that judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.

F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Thomas C. Jessee, Johnson City, Tennessee, for the appellant, Howell H. Sherrod, Jr.

Edward Kershaw, Greeneville, Tennessee, for the appellee, Carol Ann Graybeal.

OPINION

I.

This case, from its inception and through the culmination of this appeal, is essentially

about revenge. The parties were lovers. To make matters worse, the male was the female’s

lawyer during either part of the “love” affair or shortly before it began. Throughout the

affair, the Client was married and the Lawyer knew it. He claims she told him throughout

the duration of their sexual relationship that she was going to divorce her husband and marry

him. The relationship lasted from 1995 through 2001 if you believe the Client, or from 1996

to 2000 if Lawyer is to be believed. This action was originally filed on May 16, 2003. It

went to trial more than six years later, on November 9, 2009. Multiple post-trial motions

delayed the case another two years.

Between them, the parties list sixteen issues for appeal. As the reader will discover,

the procedure by and through which the August 2011 judgment came to be entered is

dispositive of most of the issues relied upon by the parties. Accordingly, we will not attempt

at this point to construct a comprehensive statement of the evidence. Instead, we will work

our way through the procedural maze and trust that the reader is appropriately oriented to the

case after reading the following brief “factual background” recited by the trial court in its

initial memorandum opinion filed March 4, 2010:

In approximately 1994, [the Lawyer], a practicing attorney in

Johnson City, Tennessee, began a professional, business

relationship with [the Client]. His representation of her included

various matters. The two also participated together in the

purchase of various bank securities. At times, [the Lawyer]

would group investments of other persons with that of [the

Client] for a combined purchase of multiple shares of stock.

Several of these investments resulted in a profit to [the Client].

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In 1995, [the Lawyer] loaned [the Client] $10,000 with

reference to a certain matter involving J. C. Bradford & Co.

Securities. The loan was never repaid.

In approximately 1996, [the Client] and [the Lawyer] developed

a personal, intimate relationship. On August 23, 1996, [the

Lawyer] purchased an engagement ring for [the Client] at a cost

of $8,093. [The Lawyer] presented and delivered the ring to

[the Client] which she wore on at least one occasion in Atlanta,

Georgia.

As [the Lawyer] continued to invest funds of several individuals

in the purchase of various stocks, [the Client] expressed her

desire that she be permitted to participate as well. On

November 7, 1997, she transferred to [the Lawyer] the amount

of $50,000 for the purpose of purchasing certain stock in Texas

Biotechnology Corp. carrying the trade symbol of TXBI.

On November 10, 1997, [the Lawyer] purchased 16,000 shares

of TXBI stock for a total cost of $99,000. The purchased

securities were placed in his name. The funds used for the stock

acquisition included $45,000 of [the Client’s] initial investment

through [the Lawyer] as well as $54,000 from other investors.

[The Client’s] 45.46% ownership interest in the 16,000 shares

yielded her an ownership of 7,273.60 shares.

The stock performed well initially. During 1999, [the Lawyer]

made three distributions to [the Client] of $5,000 each with

reference to the TXBI stock. The parties do not dispute that

payments were made on January 28, 1999, June 8, 1999 and

December 3, 1999.

By 2001, the personal relationship between [the Lawyer] and [the

Client] had begun to deteriorate. As the value of the TXBI stock

had declined and in an effort to minimize [the Client’s] losses,

[the Lawyer] sold her remaining shares of the stock on

September 21, 2001 for a price of $5.21 per share. The net yield

in favor of [the Client], after sales commission, was $37,876.52.

In December 2001, [the Client] contacted [the Lawyer] in writing

requesting both an accounting of the stock transaction and the

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return of her money. In response to [the Client’s] request, [the

Lawyer] indicated that by reason of her vandalism and theft, [to

be discussed later,] as well as other monies owed to him, no

distribution would be made to her. [The Client] subsequently

instituted [this] action . . . on June 6, 2003.

(Footnotes in original omitted.)

The court next addressed the Client’s claims against the Lawyer with regard to the

TXBI stock. It found that

. . . . [t]he evidence . . . does not support a finding that the [the

Client] instructed [the Lawyer] in 2000 to sell the stock. Instead,

[the Lawyer], through good faith and fair dealing and in an effort

to minimize [the Client’s] losses when the value of the stock was

declining, sold same in September 2001 for a net yield of

$37,876.52.

Although [the Lawyer] breached no duty of good faith and fair

dealing with respect to the timing of the sale of [the Client’s]

stock, his failure to return [the Client’s] net investment following

liquidation constituted a breach of the parties’ oral agreement.

As such, [the Client] is entitled to an award against [the Lawyer]

in the amount of $42,897.54 constituting the net sale proceeds

from the sale of the TXBI stock and the unused $5,000 retained

when the stock was originally purchased.

The court then turned to the various claims asserted by the Lawyer. The court found

that the Lawyer did not prove his claims for extortion, intentional infliction of emotion

distress, and invasion of privacy. The court found that the Lawyer did establish his claims

with respect to some property he alleged the Client had either taken or damaged. The court

found that the ring the Lawyer gave the Client was a conditional gift made in contemplation

of marriage. The court found that since both parties claimed they did not know the

whereabouts of the ring, the Lawyer was entitled to recover its value, which the court set at

$8,093 based upon the purchase price of the ring. The court also found that the Lawyer was

entitled to recover $10,564.67 for “other missing and/or damaged items.” The court further

found that “[the Lawyer] is entitled to repayment of the $10,000 loan he made in 1995.”

Finally, the court found that the Client had trespassed upon the Lawyer’s property by breaking

into the automobile of the Lawyer’s secretary/new lover to steal her purse while the car was

parked at his home. The court awarded $25,000 in damages for the trespass.

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The parties stipulated during the trial that the court could consider whether to award

an injunction against either or both parties. The court found that the Lawyer had proven a

basis for a permanent injunction against the Client but that the Client had shown no

justification for an injunction against the Lawyer.

The court also considered whether it should levy sanctions against the Lawyer and his

counsel. The court found “that neither [the Lawyer] nor his attorney committed any

sanctionable abuse of the discovery process by reason of allegations contained in the

pleadings, inspection of documents or the nature and/or duration of questioning during

depositions.”

The various findings resulted in a net recovery to the Lawyer of $10,760.13, before

prejudgment interest. The court found that both parties “are entitled to prejudgment interest

on their respective monetary awards at the rate of five (5)% per annum from September

2001.” Further the court declined to award attorney’s fees to the Client. The court directed

counsel for the Lawyer to prepare a judgment in accordance with the memorandum opinion.

Before the court could enter its judgment, the Client filed a motion to alter or amend.

She argued that the court had previously granted summary judgment in favor of the Client

holding some of the Lawyer’s claims were barred by the statute of limitations. Further, she

asserted that the court erred when it awarded damages to the Lawyer without designating

whether they were in the nature of a set off or a counterclaim. She argued that any and all

claims asserted by way of counterclaim were barred by the statute of limitations. The court

filed a short supplemental memorandum opinion stating that the court would hold a hearing

on the Client’s motion after entry of the judgment.

The next thing that happened was entry of the April 2010 judgment as contemplated

by the memorandum opinion of March 4, 2010. The judgment noted the pending motion of

the Client to alter or amend and stated that a hearing would be scheduled on that motion.

Within 30 days of the entry of the April 2010 judgment, the Client filed another motion to

alter or amend pursuant to Tenn. R. Civ. P. 59.04. The second motion essentially renewed the

argument made in the motion to alter of amend filed before the entry of the judgment, i.e., that

some or all of the Lawyer’s claims were not in the nature of a setoff and were barred by the

statute of limitations. The Lawyer also filed a motion to alter or amend, although he called

it a “motion to enter a final judgment.”1 The Lawyer’s motion included an attached proposed

judgment. His proposed judgment was dissimilar in a number of respects to the court’s

entered judgment of April 2010. Among the changes incorporated into the Lawyer’s proposed

1

We must consider the substance of the motion rather than the label a party gives it. Bemis Co. v.

Hines, 585 S.W.2d 574, 576 (Tenn. 1979); Starks v. Browning, 20 S.W.3d 645, 652 (Tenn. Ct. App. 1999).

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judgment was a credit in the amount of $15,000 for the payments characterized as

distributions to the Client in the court’s initial memorandum opinion.

The court issued a memorandum opinion on August 19, 2010, which states that the

Client’s motion to alter or amend should be denied for the following reasons:

The [Client] argues that all of [the Lawyer’s] claims upon which

monetary damages have been awarded are barred by applicable

statutes of limitations. Pursuant to the Final Judgment in this

cause, [the Lawyer] was awarded, inter alia, monetary damages

by reason of missing and damaged property as well as trespass.

The applicable statue of limitations for such property tort claims

is T.C.A. 28-3-105. This Court previously determined by Order

entered October 9, 2008, that any property tort claims based on

actions occurring prior to August 12, 2002 were time barred.

The Court has carefully considered the evidence in the case at

bar. The evidence preponderates in favor of a finding that [the

Lawyer’s] claims were timely filed in accordance with the

applicable statutes of limitation.

[The Client] argues that the total [setoff] award in favor of [the

Lawyer] may not exceed the award granted to her. The [Client]

further asserts that the monetary award in favor of [the Lawyer]

by reason of trespass may not be setoff as a matter of law.

[The Lawyer’s] Amended Answer was filed on August 12, 2005.

This responsive pleading recited certain language from his

original Answer, in pertinent part as follows: “Defendant

demands the complaint heretofore filed against him be dismissed

in its entirety and that he be awarded judgment reflecting his

right of setoff and recoupment for property damage,

compensatory damages and punitive damages . . . .” The

Amended Answer further contained allegations asserting a

counter-complaint. The counter-complaint made no reference to

setoff or recoupment.

By Order entered February 17, 2006, the Court directed, inter

alia, that [the Lawyer] could proceed on his counter-complaint

in the capacity as a plaintiff while [the Client] had pleaded a

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counterclaim. By Order entered March 6, 2008, the Court, inter

alia, directed that claims asserted by [the Lawyer] through his

counterclaim were the claims which were pending against [the

Client].

* * *

In the case at bar, [the Lawyer] has been awarded compensatory

damages upon his claim as Plaintiff, while [the Client] has been

awarded monetary damages upon her counterclaim. As a basis

for equitable setoff, this Court directs that the total monetary

award granted in favor of [the Client] shall be setoff against the

total monetary award granted in favor of [the Lawyer].

* * *

[The Client] argues that as the Judgment in this case awarded

[the Lawyer] prejudgment interest with regard to the damages

relative to trespass, such award should not be allowed. . . .

In the case at bar, this Court has determined that the trespass for

which [the Client] is liable in damages was with reference to [the

Lawyer’s] property, not his person. “A trial court’s decision of

whether to award prejudgment interest or not on an unliquidated

claim is largely within its discretion,” Seay v. County of Shelby,

672 S.W.2d 404 (1984). Based upon the foregoing analysis, this

Court concludes that the award of prejudgment interest in favor

of [the Lawyer] . . . is appropriate.

(Headings omitted.) The memorandum opinion of August 19, 2010, did not address the

Lawyer’s motion, which, as previously noted, attempted to persuade the court to enter a

modified judgment to take the place of the judgment of April 2010.

The court subsequently entered the September 2010 judgment setting the net judgment

in favor of the Lawyer, including prejudgment interest, at $16,693.13. The judgment also

recited that the “Defendant’s” motion to alter or amend was denied. The court did not

expressly mention the Lawyer’s motion to enter an amended judgment; it, however, essentially

denied the motion by implication when it entered a judgment that did not include the

requested modifications to the April 2010 judgment.

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The Lawyer then filed a “motion to compel payment of expenses.” The motion was

in substance a motion for discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2). On

October 14, 2010, the Lawyer filed his second motion asking that the court correct the

judgment to reflect credits for $15,000 in payments to the Client before the stock was sold.

The motion also asserted that the Lawyer had discovered new evidence showing that the

Client was continuing her harassing actions against him, contrary to what she had stated at

trial, and that the new evidence justified re-opening the proof to establish a causal connection

between the harassment and his alleged expenditure of over $30,000 on a security system.

The court issued a supplemental memorandum opinion on February 14, 2011, in which

it discussed the issues raised in the Lawyer’s motion for discretionary costs and his motion

to alter or amend. With regard to credit for the $15,000 in payments, the court stated that its

findings on the issue were supported by a preponderance of the evidence and that in its initial

memorandum opinion of March 4, 2010, it “specifically addressed the $15,000 distributed by

[the Lawyer] to [the Client] in payments of $5,000 each beginning January 28, 1999 and

ending December 3, 1999.” The court further stated that the Lawyer had not shown sufficient

grounds for reopening the proof with regard to the alleged justification for the security system.

As to discretionary costs, the court determined that “all discretionary costs identified in the

verified motion should be divided equally between the parties.”

On March, 2, 2011, the Client filed a motion for Rule 60 relief or alternatively for Rule

59 relief in which she raised three issues. Paraphrased, those issues are: (1) whether the court

in its September 2010 judgment intended to award compound prejudgment interest; (2)

whether the latest memorandum opinion intended to designate the Client as the “Defendant”

in awarding costs; and (3) what was the exact amount of discretionary costs to be divided.

The court entered the August 2011 judgment in which it addressed all pending issues

and into which it incorporated its most recent memorandum opinion. It denied the Lawyer’s

motion to alter or amend including the motion to reopen the proof. It granted the Lawyer’s

motion for discretionary costs in part but, pursuant to the Client’s last motion for post-

judgment relief, set the amount at $5,935.37, to be divided equally. The court found the

Client’s motion to be well taken with respect to the issue of compounding prejudgment

interest. It modified the judgment to “reflect simple interest of $4,842.” The court clarified

the taxing of costs by stating that “costs shall be taxed to [the Lawyer] for the period from

April 23, 2010 through February 14, 2011.” As a “bottom line,” the court held that “[t]he

Final Judgment is hereby modified to reflect that [the Lawyer] is awarded a total judgment

against [the Client] of $10,760.13 plus $4,842 (simple interest) plus $2,967.69 (discretionary

costs) for a total effective Judgment as of this date of $18,569.82.”

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The Lawyer filed a notice of appeal on August 24, 2011. The notice states that the

Lawyer appeals “from the Order entered in this cause of action on the 5th day of August

2011.”

II.

A.

The issues the Lawyer purports to raise are:

Did the trial court err in failing to award [the Lawyer] additional

damages in the amount of $15,000 which was a specific credit

due [the Lawyer] stipulated to by the parties during the trial?

Did the trial court err in its computation of statutory interest on

the damages awarded and should the award include statutory

interest on the amount of interest awarded in the judgment?

Was it an abuse of discretion to not allow [the Lawyer] to offer

proof concerning additional damages which was mistakenly

omitted in [the Lawyer’s] case in chief but was later offered in

trial over [the Client’s] objection?

Was it an abuse of discretion to order [the Lawyer] to pay any

part of the costs given the fact that [the Client] took a non-suit on

her original complaint and was not successful on any claim other

th[a]n that stipulated by [the Lawyer] ?

B.

The Client lists the following issues of her own:

Whether each and every one of the claims asserted by the [the

Lawyer] are barred by the applicable statute of limitations.

Whether there is an exception to the statute of limitations that

could be claimed under the defensive theories of set off or

recoupment and [whether] it [can] exceed [the Client’s] award.

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Whether, even if there was an exception to the limitation period,

. . . set off and/or recoupment [would] even apply in this case.

Whether [the Client] should be entitled to the proceeds from the

sale of certain stock from the time she requested the sale plus

interest thereon or based on the highest price for which [the

Lawyer] in fact sold some of the stock.

Whether [the Client] should be entitled to all of the proceeds

from the actual sale of her alleged stock plus interest thereon.

Whether [the Client] should be entitled to a return of her $5,000

that was not invested plus the interest thereon since it was placed

in an interest bearing account.

Whether, even without a statute of limitations argument, . . . [the

Lawyer] [has] proved that he is entitled to recover anything under

any theory . . . .

Whether [the Lawyer’s] cause of action concluded on August 11,

2005 when [the Client] took a voluntary non-suit.

Whether [the Lawyer] and/or his attorney should be sanctioned

for multiple discovery abuses, including, intentionally turning off

[the Client’s] attorney’s phone so that her attorney could not

communicate with [the Client].

[Whether] . . . [the Lawyer] [is] entitled to a restraining order.

[Whether] . . . [the Lawyer] [is] entitled to recover under multiple

theories including trespass and conversion or must he elect a

single remedy.

[Whether] . . . [the Lawyer] is entitled to the $10,000 that he

claims to have given [the Client] in 1995.

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III.

A.

Before we begin addressing the merits of any of the recited issues, we must identify

what is properly before us on appeal from the August 2011 judgment and what, more

importantly, is not properly before us. Although the parties purport to raise a host of issues

that relate back to errors allegedly made in the April 2010 judgment and the September 2010

judgment, we conclude that the only matters that are properly before us on appeal are the

modifications to the September 2010 judgment made in the August 2011 judgment. This is

because (1) the September 2010 judgment is a final judgment that became unappealable on

the 31st day after its entry and (2) the Client’s March 2011 motion for relief from the

judgment must be treated as a motion for relief from a final judgment pursuant to Tenn. R.

Civ. P. 60, rather than a motion pursuant to Tenn. R. Civ. P. 59.

It is incumbent on this court to examine our jurisdiction to review a judgment even if

the parties do not raise the issue. In re Estate of Boykin, 295 S.W.3d 632, 635 (Tenn. Ct.

App. 2008). A timely notice of appeal is jurisdictional and cannot be waived. Id.

Before we move to the particulars of the present case, it is important to review the

nature of a final judgment, and the means by which parties can seek relief from judgments.

Our Supreme Court recently provided a refresher on those concepts in Discover Bank v.

Morgan, 363 S.W.3d 479 (Tenn. 2012). In pertinent part, it stated:

As the circumstances of this case illustrate, confusion may arise

as to which procedural rule governs motions to set aside previous

trial court decisions. In order to resolve this confusion, we take

this opportunity to consider each rule available to parties seeking

relief from previous trial court decisions and to explain the stage

of the proceedings at which each of these rules applies.

* * *

Pursuant to Tennessee Rule of Civil Procedure 54, “any order or

other form of decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer than

all the parties . . . is subject to revision at any time before the

entry of the judgment adjudicating all the claims and the rights

and liabilities of all the parties.” Tenn. R. Civ. P. 54.02; see also

Tenn. R. App. P. 3(a) (“[A]ny order that adjudicates fewer than

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all the claims or the rights and liabilities of fewer than all the

parties is not enforceable or appealable and is subject to revision

at any time before entry of a final judgment2 adjudicating all the

claims, rights, and liabilities of all parties.”). Thus, motions

seeking relief from a trial court's decision adjudicating fewer than

all the claims, rights, and liabilities of all the parties, should be

filed pursuant to Rule 54.02.

* * *

Tennessee Rule of Civil Procedure 59 expressly authorizes four

categories of motions: “(1) under Rule 50.02 for judgment in

accordance with a motion for a directed verdict; (2) under Rule

52.02 to amend or make additional findings of fact, whether or

not an alteration of the judgment would be required if the motion

is granted; (3) under Rule 59.07 for a new trial; or (4) under Rule

59.04 to alter or amend the judgment.” Tenn. R. Civ. P. 59.01.

Furthermore, the specified motions are the only means “for

extending the time for taking steps in the regular appellate

process.” Id.; see also Tenn. R. App. P. 4(b).

Rule 59.02 provides that “[a] motion for new trial and all other

motions permitted under this rule shall be filed and served within

30 days after judgment has been entered in accordance with Rule

58.” Tenn. R. Civ. P. 59.02. Rule 58 states in relevant part:

“Entry of a judgment or an order of final disposition is effective

when a judgment containing one of the following is marked on

the face by the clerk as filed for entry. . . .” Tenn. R. Civ. P. 58.

Reading Rule 59.02 in conjunction with Rule 58, it is clear that

2

Consistent with prior Tennessee decisions, “final judgment” has two meanings in our discussion.

First, with respect to Rules 54.02 and 59, “final judgment” refers to a trial court’s decision adjudicating all

the claims, rights, and liabilities of all the parties. See Tenn. R. App. P. 3(a); In re Estate of Henderson, 121

S.W.3d 643, 645 (Tenn. 2003) (“A final judgment is one that resolves all the issues in a case, ‘leaving

nothing else for the trial court to do.’ ”) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840

(Tenn. Ct. App. 1997)). In the discussion of Tennessee Rule of Civil Procedure 60, “final judgment” refers

both to a decision adjudicating all the claims, rights, and liabilities of all the parties and to the fact that more

than thirty days have passed since the final judgment was entered. See Campbell v. Archer, 555 S.W.2d 110,

112 (Tenn.1977) (“The function of [Rule 60.02] is to give relief from final judgments; Rule 59, providing

for motion for new trial, is the appropriate remedy for asserting alleged errors affecting a judgment which

has not yet become final.” (emphasis added)).

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Rule 59 motions relate to final judgments – judgments

adjudicating all the claims, rights, and liabilities of all the parties.

See Harris v. Chern, 33 S.W.3d 741, 743–44 (Tenn. 2000)

(“Rule 59.04 addresses final judgments and requires a motion to

alter or amend to be made within 30 days of the entry of

judgment.”). “The purpose of Tenn. R. Civ. P. 59 motions is to

prevent unnecessary appeals by providing the trial courts with an

opportunity to correct errors before a judgment becomes final.”

Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998)

(emphasis added), overruled on other grounds by Harris, 33

S.W.3d at 744. Thus, for thirty days after entry of a final

judgment, motions for relief should be premised upon Rule 59.

In the event that a party waits to seek relief for more than thirty

days after entry of a final judgment, the trial court cannot grant

relief under Rule 59. See Tenn. R. Civ. P. 59.02. After this time,

relief must be sought pursuant to Tennessee Rule of Civil

Procedure 60.02. See, e.g., Campbell v. Archer, 555 S.W.2d

110, 112 (Tenn. 1977) (“The function of [Rule 60.02] is to give

relief from final judgments; Rule 59, providing for motion for

new trial, is the appropriate remedy for asserting alleged errors

affecting a judgment which has not yet become final.” (emphasis

added)). Rule 60.02 states in relevant part:

On motion and upon such terms as are just, the

court may relieve a party or the party’s legal

representative from a final judgment, order or

proceeding for the following reasons: (1) mistake,

inadvertence, surprise or excusable neglect; (2)

fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct

of an adverse party; (3) the judgment is void; (4)

the judgment has been satisfied, released or

discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it

is no longer equitable that a judgment should have

prospective application; or (5) any other reason

justifying relief from the operation of the

judgment. The motion shall be made within a

reasonable time, and for reasons (1) and (2) not

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more than one year after the judgment, order or

proceeding was entered or taken. A motion under

this Rule 60.02 does not affect the finality of a

judgment or suspend its operation, but the court

may enter an order suspending the operation of the

judgment upon such terms as to bond and notice as

to it shall seem proper pending the hearing of such

motion.

Tenn. R. Civ. P. 60.02 (emphasis added).

Discover Bank, 363 S.W.3d at 488-89 (emphasis in Discover; our footnote 2 is in original

as footnote 17; other footnotes in original omitted); see Byrnes v. Byrnes, No. E2011-00025-

COA-R3-CV, 2012 WL 1664014 at * 4-6, 9 (Tenn. Ct. App. E.S., filed May 14, 2012).

Application of the above principles yields the following conclusions. There was a final

judgment entered in this case in April 2010 which was re-affirmed in the September 2010

judgment by the denial of the Client’s motion to alter or amend. The September judgment was

not timely appealed by either party. The Lawyer’s motion to alter or amend was untimely

because it was not filed within 30 days of the April 2010 judgment. The September 2010

judgment was modified on August 5, 2011, pursuant to the Client’s motion that must be

treated as made pursuant to Tenn. R. Civ. P. 60.02. The Lawyer’s motion for discretionary

costs did not arrest the finality of the September judgment. Roberts v. Roberts, No. E2009-

02350-COA-R3-CV, 2010 WL 4865441 at *8 (Tenn. Ct. App. E.S., filed Nov. 29, 2010).

We will review the pertinent chronology with exact dates. The April 2010 judgment

was entered on April 23, 2010. It disposed of all claims against all parties. On May 21, 2010,

the Client filed a timely motion to alter or amend that judgment in several respects. On June

4, 2010, the Lawyer filed an untimely motion to alter or amend, disguised as a motion to enter

a final judgment as modified by the Lawyer. On September 15, 2010, the court entered its

September 2010 judgment in which it denied the Client’s motion to alter or amend, and

impliedly denied the Lawyer’s motion. The September 2010 judgment was in substance a

reiteration of the April 2010 judgment with a hand-written notation denying the “Defendant’s”

motion to alter or amend. On October 14, 2010, the Lawyer filed his own motion to alter or

amend. On March 2, 2011, after the court released its memorandum opinion in February, the

Client filed her motion “for Rule 60.02 relief or alternatively Rule 59.04 relief.” The court

denied the Lawyer’s motion and granted the Client’s latest motion in part in the August 2011

judgment entered August 5, 2011. It is that order from which the Lawyer has appealed.

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Had the September 2010 judgment altered the April 2010 judgment in a manner

adverse to the Lawyer, it would have had the effect of starting the time anew for filing a

timely motion pursuant to Tenn. R. Civ. P. 59. Albert v. Frye, 145 S.W.3d 526, 528 (Tenn.

2004), see Ball v. McDowell, 288 S.W.3d 833, 838 (Tenn. 2009) (“We conclude that when

consecutive ‘final’ judgments are entered, a subsequent entry of judgment operates as the final

judgment only if the subsequent judgment affects the parties’ substantive rights or obligations

settled by the first judgment.”). However, because the September 2010 judgment did not

adversely change the original April 2010 judgment vis-a-vis the Lawyer, the September 2010

judgment became immune from Tenn. R. Civ. P. 59 alteration and subject to alteration only

pursuant to Rule 60. See id. The result is that the Lawyer’s motion to alter or amend filed on

October 14, 20103 , was ineffective to toll the time for filing a notice of appeal because it was

filed more than 30 days after entry of the April 2010 judgment. Gassaway v. Patty, 604

S.W.2d 60, 61 (Tenn. Ct. App. 1980)(the time for “all parties” for filing a notice of appeal

runs from the first order denying a Rule 59 motion). Gassaway has come to stand for the

proposition that all such motions must be timely filed from the date of the judgment to be

altered and that successive Rule 59 motions are not allowed. See also Parks v. Mid-Atlantic

Finance Co., 343 S.W.3d 792, 799 (Tenn. Ct. App. 2011)(citing Albert for the same

proposition). The one exception that has been allowed is the one in Albert where one party

files a Rule 59 motion upon which the court essentially enters a new judgment, forcing the

adverse party to then seek correction of that new judgment. That is not what happened in the

present case.4

3

We are mindful that the Lawyer filed a motion to enter a modified judgment before the court entered

its September 2010 judgment. There are two impediments to treating it as a motion that ultimately stayed

the time for filing a notice of appeal. One, it was filed on June 4, 2010, more than 30 days after entry of the

April 2010 judgment. Second it was denied by implication upon entry of the September 2010 judgment.

Thus, the similar motion filed after entry of the September judgment became a forbidden, successive Tenn.

R. Civ. P. 59 motion.

4

Arguably, the Lawyer’s motion to alter or amend could be treated as a motion for relief from the

September 2010 judgment pursuant to 60.02, thus allowing review of the denial of that motion in the August

2011 judgment under the heightened standards applicable to Tenn. R. Civ. P. 60.02 motions. That would

not change the result as we would not find an abuse of discretion in the trial court’s denial of that motion.

The trial court impliedly determined that the Lawyer was not entitled to the $15,000 credit in the September

2010 judgment by entering a judgment that did not allow the credit. The court explicitly denied the motion

in the August 2011 judgment, saying that it had already considered the issue. As we explained in Willis v.

West, No. W2011-01856-COA-R3-CV, 2012 WL 2904035 at *6 (Tenn. Ct. App. W.S., filed July 17, 2012),

the remedy for a matter that has already been litigated and determined incorrectly by the trial court is an

appeal rather than successive post-trial motions.

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Accordingly, we will not go behind the August 2011 judgment to examine the merits

of the September 2010 judgment that became unappealable. This determination eliminates

from our consideration all issues except those modifications in the August 2011 judgment that

were made pursuant to the Client’s motion of March 2, 2011. Because our determination is

based on the finality of the September 2010 judgment and the lack of a timely appeal from

that judgment, our holding applies equally to the issues raised by the Client. In other words,

the judgment became final against the Client just as it became final against the Lawyer. The

result is that only the second issue and the fourth issue raised by the Lawyer are properly

before us.

B.

It is important that the court did modify the September judgment in several respects in

response to the Client’s motion filed on March 2, 2011. As we have stated, the Client’s

belated motion cannot be treated as a Rule 59 motion. Pursuant to the teachings of Discover

Bank, and our own opinion in Byrnes, it must be treated as a motion for relief from the

September 2010 judgment made pursuant to Tenn. R. Civ. P. 60.02. Our review, therefore,

is pursuant to the standard of review articulated as follows in Discover Bank:

. . . . We . . . review for abuse of discretion a trial court’s ruling

on a Rule 60.02 motion for relief from a final judgment, Henry

v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003) . . . .

Abuse of discretion is found “ ‘only when the trial court applied

incorrect legal standards, reached an illogical conclusion, based

its decision on a clearly erroneous assessment of the evidence, or

employed reasoning that causes an injustice to the complaining

party.’ ” State v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010)

(quoting State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). The

abuse of discretion standard does not permit an appellate court to

merely substitute its judgment for that of the trial court. See

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Henry,

104 S.W.3d at 479. Instead, “[u]nder the abuse of discretion

standard, a trial court’s ruling ‘will be upheld so long as

reasonable minds can disagree as to [the] propriety of the

decision made.’ ” Eldridge, 42 S.W.3d at 85 (quoting State v.

Scott, 33 S.W.3d 746, 752 (Tenn. 2000)).

Discover Bank, 363 S.W.3d at 487.

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The Lawyer argues that the trial court erred in the August 2011 judgment by modifying

the September 2010 judgment to delete compound interest. The September 2010 judgment set

the total interest due the Lawyer at $5,933. It arrived at this figure by compounding the

interest from year to year. The first year the court based the interest on the amount of the

Lawyer’s net judgment, or $10,760.13. The second year it based the interest on the judgment

plus the accrued interest, or a total figure of $11,298.13. This process continued for each year

that the court awarded interest. In its August 2011 judgment, the court stated: “Interest shall

not be compounded and the prior compounding was a mistake.” It modified the amount of

interest set in the September 2010 judgment accordingly. The Lawyer contends that he “should

receive interest on the interest after it is annualized.” He states that “[n]either the statute nor

case law addresses the issue; however, assuming a logical business transaction, equity would

dictate that the interest should earn interest until paid.” The statute to which he refers is Tenn.

Code Ann. § 47-14-123 (2001).5 Remarkably, the Lawyer provides us with no authority as to

what factors the court should have considered in doing equity. Even more remarkably, as the

Client points out, the Lawyer overlooks or refuses to recognize a Supreme Court case that does

directly address the issue. In Otis v. Cambridge Mut. Fire Ins. Co, 850 S.W.2d 439, 447

(Tenn. 1993), the High Court held:

To interpret the statute to mean compound interest is authorized

constitutes a forced construction that impermissibly extends the

intent of the legislature. The award of prejudgment interest

should be calculated at simple interest with a 10% per annum cap.

(Emphasis added.) Otis is still good law. Accordingly, we hold that the trial court did not

abuse its discretion in modifying the September 2010 judgment to eliminate compound interest.

5

The exact language of the statute is as follows:

` Prejudgment interest, i.e., interest as an element of, or in the nature of,

damages, as permitted by the statutory and common laws of the state as of

April 1, 1979, may be awarded by courts or juries in accordance with the

principles of equity at any rate not in excess of a maximum effective rate

of ten percent (10%) per annum; provided, that with respect to contracts

subject to § 47-14-103, the maximum effective rates of prejudgment

interest so awarded shall be the same as set by that section for the particular

category of transaction involved. In addition, contracts may expressly

provide for the imposition of the same or a different rate of interest to be

paid after breach or default within the limits set by § 47-14-103.

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C.

We turn now to the final issue of whether the trial court abused its discretion in taxing

any part of the court costs, including discretionary costs, to the Lawyer. Before we reach the

merits of that issue, we note that the court first ruled on the motion for discretionary costs in

its August 2011 judgment from which the Lawyer filed his notice of appeal. The motion was

filed after the September 2010 judgment but before the August 2011 judgment. The pending

motion for discretionary costs did not prevent the September 2010 judgment from becoming

a final judgment that could not be appealed. Roberts, 2010 WL 4865441 at *8.

The thrust of the Lawyer’s argument is that he was the prevailing party on all aspects

of this case, and, therefore, all costs, including discretionary costs, should have been taxed to

the Client. For good measure, the Lawyer throws in an argument that the Client is a liar and

the trial court must have so found. However, the Lawyer furnishes no citation to the record

where we could locate this supposed finding. We have looked without success for such a

finding. He also throws into the mix the fact that when the Client dismissed her original

complaint without prejudice, the order allowing the dismissal taxed the costs to her. However,

the Lawyer overlooks the fact that the order allowing the dismissal was not final and therefore

subject to revision up until entry of a final judgment. The Client reinstated her claims by way

of counterclaim in response to the Lawyer’s decision to prosecute his counterclaims. The court

ultimately ruled on costs in a global manner. Thus, we believe that the only colorable

challenge to the trial court’s allocation of costs is that the Lawyer should have been awarded

all his costs as the prevailing party. The Client disagrees that the Lawyer was the prevailing

party, but neither party furnishes this Court any authority as to what constitutes the

“prevailing” party for the taxation of costs. Since the trial court awarded the Lawyer part, but

not all, of his discretionary costs, it appears that the trial court found that the Lawyer was, to

a limited extent, a prevailing party. We further note that the express language of Tenn. R. Civ.

P. 54.046 clearly contemplates that there will be cases where, in the trial court’s discretion, it

6

Tenn. R. Civ. P. 54.04 states as follows:

(1) Costs included in the bill of costs prepared by the clerk shall be allowed

to the prevailing party unless the court otherwise directs, but costs against

the state, its officers, or its agencies shall be imposed only to the extent

permitted by law.

(2) Costs not included in the bill of costs prepared by the clerk are

allowable only in the court’s discretion. Discretionary costs allowable are:

reasonable and necessary court reporter expenses for depositions or trials,

reasonable and necessary expert witness fees for depositions (or stipulated

(continued...)

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is appropriate to deny some or all of the costs, even allowable costs, requested by a prevailing

party. Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42, 65 (Tenn. Ct.

App. 2004); see Lock v. National Union Fire Ins., 809 S.W.2d 483, 490 (Tenn. 1991). In our

view, based upon a complete review of the record, the bizarre facts of this case, and the manner

in which this case was handled, make this one of those cases. For example, the record shows

that the Lawyer insisted on personally taking the Client’s deposition – even though he had

counsel of record – and in questioning her in detail about many, if not all, of the love notes and

cards they exchanged over the five or six year relationship. He enthusiastically explored every

innuendo, sexual and otherwise, in those writings. In fact, those writings are part of the

sizeable record sent to this court. We have reviewed that deposition, and we see very little

justification for that kind of examination. As best we can tell, the Client has never denied in

this case that she had a lengthy affair with the Lawyer. This was not a case for divorce or

alimony. We have already suggested that the driving force behind this litigation, for both

parties, was revenge and retribution. We conclude that at least part of the deposition we have

used as an example was, at best, overkill.7 This is only one example. The court was well

aware of this and other questionable conduct by both parties that made this litigation necessary

and that prolonged and complicated the case. Upon review of the record in this case, we

cannot say that the court’s decision to tax some of the costs to the Lawyer, including some of

his own discretionary costs, was based upon incorrect legal standards, illogical, based on an

6

(...continued)

reports) and for trials, reasonable and necessary interpreter fees for

depositions or trials, and guardian ad litem fees; travel expenses are not

allowable discretionary costs. Subject to Rule 41.04, a party requesting

discretionary costs shall file and serve a motion within thirty (30) days after

entry of judgment. The trial court retains jurisdiction over a motion for

discretionary costs even though a party has filed a notice of appeal. The

court may tax discretionary costs at the time of voluntary dismissal. In the

event an appeal results in the final disposition of the case, under which

there is a different prevailing party than the prevailing party under the trial

court’s judgment, the new prevailing party may request discretionary costs

by filing a motion in the trial court, which motion shall be filed and served

within thirty (30) days after filing of the appellate court’s mandate in the

trial court pursuant to Rule 43(a), Tenn. R. App. P.

7

We are aware that the trial court refused to award sanctions against the Lawyer and his counsel for

the way depositions were conducted. We do not reach the merits of that ruling. Given the trial court’s other

rulings, we think it is fair to say that the trial court did not intend to condone the Lawyer’s conduct merely

by denying sanctions.

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erroneous assessment of the evidence, or resulted in an injustice. We conclude that other

reasonable judicial minds could reach the same result. Therefore, we hold that the trial court

did not abuse its discretion in the assessment of costs.

IV.

The judgment of the trial court, entered August 5, 2011, is affirmed. Costs on appeal

are taxed to the appellant, Howell H. Sherrod, Jr. This case is remanded, pursuant to

applicable law, for enforcement of the judgment and collection of costs assessed by the trial

court.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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