Thompson v. Chafetz

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 21, 2004 Session

ALBERT THOMPSON v. PATRICIA CHAFETZ

A Direct Appeal from the Circuit Court for Shelby County

No. 306305 The Honorable George H. Brown, Jr., Judge

No. W2003-00518-COA-R3-CV - Filed March 4, 2004

This is an appeal from an Order denying Appellant’s Tenn. R. Civ. P. 60 Motion, which

sought relief from the grant of Appellee’s Motion for Summary Judgment. Appellant’s attorney

failed to set the Motion for hearing until some nineteen (19) months after the entry of the Order

granting summary judgment. The trial court found that the attorney’s failure to prosecute resulted

in prejudice to Appellee and denied the Rule 60 Motion. We affirm.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and HOLLY M. KIRBY , J., joined.

Warner Hodges, III of Germantown For Appellant, Albert Thompson

Eugene J. Podesta, Jr. of Memphis For Appellee, Patricia Chavetz

OPINION

On January 10, 2000, Albert Thompson ( “Thompson,” “Plaintiff,” or “Appellant”) filed a

“Complaint for Damages for Legal Malpractice” against Patricia Chafetz (“Chafetz,” “Defendant,”

or “Appellee”). Chafetz represented Thompson in his contested divorce and the allegations of legal

malpractice stem from those proceedings. Chafetz filed her Answer on March 28, 2000.

Following discovery, on October 19, 2000, Chafetz filed a Motion for Summary Judgment,

along with a Statement of Undisputed Material Facts and the Affidavit of attorney Darrell D. Blanton

in support thereof. The Motion for Summary Judgment was set for hearing on May 4, 2001. Warner

Hodges, III (“Hodges”), attorney for Thompson, failed to appear at that hearing. At that time, the

trial court asked Eugene J. Podesta, Jr. (“Podesta”), attorney for Chafetz, to draft an Order Granting

Summary Judgment and to inform Hodges that the Order would be entered if Hodges did not file an

affidavit to rebut that of Darrell D. Blanton within one week. Podesta drafted the Order and notified

Hodges by letter of the affidavit requirement.

On May 9, 2001, Hodges filed the Affidavit of Kevin A. Snider, along with “Plaintiff’s

Response to Defendant’s Rule 56.03 Statement of Undisputed Material Facts,” in opposition to the

Motion for Summary Judgment. Despite these filings, and without any further hearing, the trial court

entered the Order Granting Defendant’s Motion for Summary Judgment on May 14, 2001. Neither

Hodges nor Podesta had knowledge that this Order had been entered until Podesta was notified

sometime in June or July of 2001.1 At that time, Podesta checked the file and found that the Order

had been entered.2 He then notified Hodges to check the file.3 After checking the file, on September

20, 2001, Hodges filed “Plaintiff’s Motion Pursuant to Rule 60 T.R.C.P. for Relief from Judgment

or Order” (the “Rule 60 Motion”). The Rule 60 Motion reads, in relevant part, as follows:

Defendant had filed a Motion for Summary Judgment which

had been continued for various reasons a few times. The Motion for

Summary Judgment primarily dealt with the absence of an affidavit

from a practicing attorney supporting the legal malpractice. On May

9, 2001, Plaintiff did file an appropriate affidavit with the court from

Kevin A. Snider, an attorney who had been practicing for more than

one year prior to the alleged negligence in the present case. The

Motion for Summary Judgment was scheduled to be heard on Friday,

May 11 and counsel for the Plaintiff faxed a copy of the affidavit to

counsel for Defendant stating that he assumed that the Motion for

Summary Judgment would be stricken, or to notify him otherwise.

Apparently, through miscommunication, counsel for the Defendant

had left an Order Granting Summary Judgment with the Court, which

the Court apparently signed on May 14, 2001. Plaintiff verily

believes that he has just cause to set aside this Order as he had

complied with Rule 56 of the Tennessee Rules of Civil Procedure by

filing an adequate affidavit in opposition to the Motion for Summary

Judgment. Counsel for the Plaintiff was not sent a copy of the Order

and only recently learned that the Order had been signed...

The Rule 60 Motion was not set for hearing until December 6, 2002, some nineteen (19)

months after the Order Granting Summary Judgment was entered. On January 6, 2003, the trial court

1

Darrell D. Blanton informed Podesta that he believed the Order Granting Defendant’s Motion for Summary

Judgment had been entered during a conversation the two had in the hallway of the courthouse.

2

Up to the time that Podesta checked the file, he had proceeded as if the Order had not been entered (i.e. he

took the deposition of Kevin Snider).

3

T he exact date of Podesta’s call to Hodges to check the file is not in the record. Podesta stated at oral

argument that it was in the “Summer of 2001,” but that it could have been as late as August 2001.

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filed its “Order Denying Plaintiff’s Motion for Rule 60 Relief,” which reads, in pertinent part, as

follows:

This cause came to be heard this 6th day of December, 2002,

on the written motion of Plaintiff for relief from judgment pursuant

to Rule 60, the statement of counsel and the entire record in this

cause; from all of which it appears to the Court that the Motion is not

well-taken and should be denied...

Thompson appeals from this Order and raises two issues for our review as stated in his

brief:

1. Whether the order granting Defendant’s Motion for Summary

Judgment was ever properly entered, and whether said order, if not

properly entered, is either final or appealable.

2. Whether the trial judge erred in granting Defendant’s Motion for

Summary Judgment and in denying Plaintiff’s post trial motion to

correct same.

Motion for Summary Judgment

Appellant first contends that the Motion for Summary Judgment was not properly entered

pursuant to Tenn. R. Civ. P. 58. This issue is not properly before this Court. Thompson’s Notice

of Appeal, filed February 5, 2003, specifically states that he is appealing from the “Order of the

Court entered on the sixth of January, 2003.” The January 6, 2003 Order denies the Rule 60 Motion.

However, even if we entertain Appellant’s issue, we nonetheless find that the requirements

of Tenn. R. Civ. P. 58 are met in this case. Rule 58 reads, 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:

* * *

(2) the signatures of the judge and one party or counsel with a

certificate of counsel that a copy of the proposed order has been

served on all other parties or counsel...

Id. (emphasis added).

The Order Granting Summary Judgment is stamped “Filed” on May 14, 2001, it is signed by

Judge George Brown and by Podesta, as counsel for Chafetz. It contains a Certificate of Service,

signed by Podesta, indicating that Hodges was served with a “true and exact” copy of the proposed

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order on May 4, 2001. Nothing in Rule 58 indicates that any party is entitled to receive a copy of

the judgment as it is filed4 (i.e. stamped, signed by the judge and counsel). Rather, Rule 58 is

satisfied where, as in this case, all parties receive a copy of the proposed order. This issue is without

merit.

Tenn. R. Civ. P. 60 Motion

A Rule 60 motion for relief from a judgment is within the sound discretion of the trial court

and the court’s ruling on a Rule 60 motion may not be reversed on appeal unless it is determined that

the court abused its discretion. See Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn.1993);

Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn.1991); Toney v. Mueller Co., 810 S.W.2d

145, 147 (Tenn.1991); Travis v. City of Murfreesboro, 686 S.W.2d 68, 70 (Tenn.1985); Spruce v.

Spruce, 2 S.W.3d 192, 194 (Tenn. Ct. App.1998); Day v. Day, 931 S.W.2d 936, 939 (Tenn. Ct.

App.1996); Ellison v. Alley, 902 S.W.2d 415, 418 (Tenn. Ct. App.1995).

The abuse of discretion standard requires us to consider: (1) whether the decision has a

sufficient evidentiary foundation; (2) whether the trial court correctly identified and properly applied

the appropriate legal principles; and (3) whether the decision is within the range of acceptable

alternatives. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). While

we will set aside a discretionary decision if it does not rest on an adequate evidentiary foundation

or if it is contrary to the governing law, we will not substitute our judgment for that of the trial court

merely because we might have chosen another alternative.

The Rule 60 Motion was heard on December 6, 2002. After both attorneys had argued, the

trial court denied the Rule 60 Motion with the following explanation:

MR. HODGES: Could your Honor tell me...the reasons why

this [Rule 60 Motion] has been denied?

THE COURT: In all candor, Mr. Hodges, I don’t think that

you have been prompt in prosecuting this case and keeping up with

the matters dealing with this case. And if you were dilatory [sic] to

file promptly like any other lawyer should do, then these matters

would have come to your attention and your office’s attention. And

I gave you the benefit of the doubt with regard to your explanation

that you gave the Court with regards to the fax that you claim that you

4

Rule 58, Tenn.R.Civ.P. provides that “[w]hen requested by counsel or pro se parties, the clerk shall mail or

deliver a copy of the entered judgm ent to all parties or counsel within five days after entry. . .” (emphasis added).

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did not receive. So I am giving you the benefit of every doubt, but

since you asked my reason, I gave you my reason.

This matter arises out of an interesting procedural miscommunication, namely the Motion

for Summary Judgment was granted unbeknownst to both attorneys in the case. However, the job

of this Court, in reviewing the action of the trial court, is not so much focused on the filing of the

Motion for Summary Judgment as upon the actions of Messrs. Podesta and Hodges following the

discovery of this filing. It is undisputed that Podesta learned of the grant of summary judgment

sometime in the summer of 2001 and that he notified Hodges to check the file. On September 20,

2001, Hodges filed the Rule 60 Motion. Had Hodges set the Motion on the docket at that time, there

is little doubt that it would have been granted based upon the fact that Hodges filed the Affidavit of

Kevin Snider in a timely manner and the fact that neither side was aware of the filing of the Motion

for Summary Judgment. In fact, Podesta indicated that he “wouldn’t have much to say to the Court

[concerning the Rule 60 Motion being granted] if we were still in the summer of 2001.”

However, rather than setting the Rule 60 Motion to be heard in a timely fashion, Hodges

waited until December of 2002, nearly nineteen (19) months after the entry of the Motion for

Summary Judgment. At the hearing on December 6, 2002, Messrs. Podesta and Hodges were

allowed adequate time to argue the issue of whether this delay caused prejudice to their respective

sides. Having reviewed this record, and particularly the statements of counsel made at the December

6, 2002 hearing, we cannot say that the trial court abused its discretion in finding that Hodges was

derelict in failing to set the Rule 60 Motion for timely disposition. Furthermore, there were adequate

evidentiary grounds for the trial court to find that such unwarranted delay prejudiced Chafetz’s case.

We find no abuse of discretion by the trial court.

Consequently, we affirm the order of the trial court. Costs of this appeal are assessed against

the Appellant, Albert Thompson, and his surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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