Christina A. Brown v. Marisol Juarez

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 4, 2014 Session

CHRISTINA A. BROWN, ET. AL. v. MARISOL JUAREZ, ET. AL.

Appeal from the Circuit Court for Blount County

No. L16043 Hon. David Reed Duggan, Judge

No. E2013-00979-COA-R3-CV-FILED-APRIL 10, 2014

This appeal involves Plaintiffs’ motion to set aside an order to dismiss for failure to

prosecute in a personal injury action. The trial court denied the motion. Plaintiffs appeal.

We affirm the decision of the trial court.

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

Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,

J R., C.J. and T HOMAS R. F RIERSON, II, J., joined.

Carl R. Ogle and C. Scott Justice, Jefferson City, Tennessee, for the appellants, Christina A.

Brown, individually and as next friend of Joshua S. Brown and Jaleigh J. Brown, and Daniel

Robert Nevins, personal representative for the Estate of Barbara Ann Monnett.1

Joseph M. Huffaker and John C. Howell, Nashville, Tennessee, for the appellees, Marisol

Juarez, Advance Auto Parts, Inc., and Advance Stores Company.

OPINION

I. BACKGROUND

Christina A. Brown, Barbara Ann Monnett, Joshua S. Brown, and Jaleigh Brown

(collectively “Plaintiffs”) filed suit against Marisol Juarez, Advance Auto Parts, Inc., and

Advance Stores Company (collectively “Defendants”) for injuries they sustained in a traffic

accident that occurred on November 8, 2007. The case proceeded throughout the discovery

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Barbara Ann Monnett passed away during the pendency of the appeal.

stage without incident until 2009, when all activity on the case appeared to cease.

Apparently aggrieved by the lack of progress in the case, Defendants filed a two-page motion

to dismiss for failure to prosecute on September 13, 2012. Immediately following the

signature line on the second page, the following notice was provided:

NOTICE OF HEARING

THIS MOTION IS EXPECTED TO BE HEARD ON MONDAY,

OCTOBER 8, 2012, AT 9:00 A.M. IN THE CIRCUIT COURT FOR

BLOUNT COUNTY, TENNESSEE. FAILURE TO FILE A TIMELY

RESPONSE AND SERVE A WRITTEN RESPONSE TO THIS MOTION

WILL RESULT IN SAID MOTION BEING GRANTED WITHOUT

FURTHER NOTICE AND COUNSEL OR PRO SE LITIGANT NEED

NOT APPEAR IN COURT AT THE TIME AND DATE SCHEDULED

FOR THE HEARING.

The trial court granted the motion to dismiss when Plaintiffs failed to appear at the hearing.

The record reflects that the motion with the attached notice of hearing had been mailed to

only one of the attorneys of record designated by Plaintiffs.

Plaintiffs filed a motion to set aside the order dismissing the case. Carl R. Ogle, Jr.,

an attorney of record in the case, conceded that he had received the motion to dismiss and

that he simply overlooked the notice of hearing. He asserted that the notice was ineffective

because it had only been sent to one of the attorneys of record and that the dismissal should

be set aside because his failure to appear was excusable neglect. The trial court denied the

motion. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal by Plaintiffs as follows:

A. Whether the notice sufficiently apprised Plaintiffs of the hearing on the

motion to dismiss.

B. Whether the trial court erred in denying the motion to set aside the order

of dismissal.

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III. STANDARD OF REVIEW

It is clear from the record that Plaintiffs sought relief pursuant to Rule 60.02 of the

Tennessee Rules of Civil Procedure even though the motion to set aside was filed within 30

days of the order of dismissal. We review a trial court’s award or denial of relief pursuant

to Rule 60.02 of the Tennessee Rules of Civil Procedure under an abuse of discretion

standard. Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000); Underwood v.

Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Ferguson v. Brown, 291 S.W.3d 381, 386

(Tenn. Ct. App. 2008). Unless the trial court abused its discretion, its ruling on such motions

may not be reversed on appeal. Id. A trial court abuses its discretion only when it “applies

an incorrect legal standard, or reaches a decision which is against logic or reasoning or that

causes an injustice to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.

2001); State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

Our review of the record is de novo with the presumption that the trial court’s factual

findings are correct. We will honor those findings unless the evidence preponderates against

them. Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.

1995). The presumption of correctness does not attach to the trial court’s conclusions of law.

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

IV. DISCUSSION

A.

Plaintiffs assert that the notice of hearing was insufficient because it failed to apprise

them of the impending hearing and because it was sent to only one of the attorneys of record.

They claim that the notice violated the local rules of practice and the fundamental

requirements of due process because it was crafted in a calculated effort to conceal the

hearing date. They ask this court to adopt the various suggested forms found in the

Tennessee Practice Series. Defendants respond that the notice was a proper means of

notification that was provided within sufficient time to allow Plaintiffs to respond. They

claim that the suggested forms of notice are not required by law and that requiring litigants

to adhere to a specific form would place an undue burden upon parties to litigation.

“An elementary and fundamental requirement of due process in any proceeding which

is to be accorded finality is notice reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action and afford them an opportunity to

present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950) (citations omitted). “The means employed must be such as one desirous of actually

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informing the absentee might reasonably adopt to accomplish it.” Id. at 315. In keeping with

that standard, the local rules for the 5th Judicial Circuit provide,

In Circuit Court, Law Division, motions filed without a notice of hearing date

shall be assigned a hearing date by the Clerk. If the date is not agreeable, it

may be reset by agreement of all parties and counsel by contacting the Judge’s

secretary and arranging for an alternate hearing date. Motions may be heard

on any motion day by agreement of counsel. If no agreement can be reached,

counsel desiring to have a motion heard may set the matter by giving opposing

counsel five (5) days’ written notice, Saturdays, Sundays and holidays

excluded. All hearing dates for motions except for hearing dates set by the

Clerk shall be first confirmed with the judge’s secretary and then confirmed

in writing to the Judge’s secretary with a copy to opposing counsel or the

opposing party if pro se.

(Emphasis added).

Defendants urge this court to adopt the suggested forms provided in the Tennessee

Practice Series. We decline to adopt such a rule because we believe that the local rules and

the fundamental requirements of due process relative to notice provide sufficient guidelines

for practitioners to follow. A review of the record reveals that the notice sufficiently

apprised counsel of the date and time for the hearing. Additionally, the notice was provided

to opposing counsel within the relevant time frame required by the local rules of practice.

Given that the hearing proceeded as scheduled, the hearing date was also likely confirmed

by the judge’s secretary. While Plaintiffs complain that they did not receive a copy of the

confirmation, we decline to hold that failure to receive a copy of scheduling correspondence

invalidates a notice of hearing. We acknowledge that two attorneys were listed as

representatives and that only one attorney received the notice. The record reflects that Mr.

Ogle was primarily the attorney involved in correspondence and that Mr. Justice had not filed

a document on behalf of Plaintiffs since December 20, 2007. Indeed, Mr. Justice failed to

even join in the motion to set aside the order of dismissal. With these considerations in mind,

we hold that the notice sufficiently apprised Plaintiffs of the hearing date and was compliant

with the relevant requirements.

B.

Plaintiffs assert that the trial court erred by failing to set aside the order of dismissal.

They claim that their failure to appear or respond was excusable neglect pursuant to Rule

60.02 of the Tennessee Rules of Civil Procedure. Defendants respond that counsel’s conduct

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failed to meet the standard of excusable neglect. They note that counsel was provided

several weeks in which to respond to the motion to dismiss but simply failed to take action.

A final judgment may be set aside pursuant to Rule 60.02 of the Tennessee Rules of

Civil Procedure when

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 [ ], 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 more than one year after the judgment, order or proceeding was

entered or taken.

Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 834

S.W.2d 289, 294 (Tenn. 1992). The function of the rule is to “strike a proper balance

between the competing principles of finality and justice.” Banks v. Dement Constr. Co., Inc.,

817 S.W.2d 16, 18 (Tenn. 1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.

1976)). “Rule 60.02 is meant to be used only in those few cases that meet one or more of the

criteria stated.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).

Plaintiffs argue that their failure to appear and to respond was due to “mistake,

inadvertence, surprise or excusable neglect.” Tenn. R. Civ. P. 60.02(1). A party seeking

relief from a final judgment under Rule 60.02 bears the burden of offering proof of the basis

upon which relief is sought. Henry v. Goins, 104 S.W.3d 475, 482 (Tenn. 2003). The

movant must “set forth in a motion or petition and supporting affidavits facts explaining why

the movant was justified in failing to avoid the mistake, inadvertence, surprise or neglect.”

Tennessee State Bank v. Lay, 609 S.W.2d 525, 527 (Tenn. Ct. App. 1980). “Because of the

similarity between default judgments and dismissals, we find instructive those factors that

are used to determine if a default judgment should be vacated under Rule 60.02(1).” Henry,

104 S.W.3d at 481. The factors at issue include: “(1) whether the default was willful; (2)

whether the defendant has a meritorious defense; and (3) whether the non-defaulting party

would be prejudiced if relief were granted. Id. (citing Tennessee Dep’t of Human Servs. v.

Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)). The trial court’s findings based on a

consideration of these factors are accorded great weight. See Barbee, 689 S.W.2d at 867

(“[T]he trial court is in the best position to assess the various factors that should be

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considered in determining whether a default judgment should be vacated.”). While Rule

60.02 is construed with liberality, the defaulting party must prove entitlement to relief

pursuant to Rule 60.02. Henry, 104 S.W.3d at 481-82 (citing Federated Ins. Co. v. Lethcoe,

18 S.W.3d 621, 624-25 (Tenn. 2000)).

An absence of willfulness does not necessarily mean that the neglect was excusable

because willfulness has not replaced the Rule 60.02(1) reason of excusable neglect. Pryor

v. Rivergate Meadows Apartment Assocs. Ltd. P’ship, 338 S.W.3d 882, 886 (Tenn. Ct. App.

2009). “A recent Tennessee decision explained the relationship as follows: ‘[t]his approach

has been to find that negligence, a form of neglect, may be excusable and to employ

wilfulness as a critical factor in distinguishing neglect that is excusable from that which is

not.”’ Id. (quoting World Relief Corp. of Nat’l Ass’n of Evangelicals v. Messay, No. M2005-

01533-COA-R3-CV, 2007 WL 2198199, at *7, n.9 (Tenn. Ct. App. July 26, 2009)).

While counsel was negligent in failing to appear or respond to the motion, his

behavior cannot be characterized as a willful decision to ignore the motion and allow an

order of dismissal to be entered against Plaintiffs. McBride v. Webb, No. M2006-01631-

COA-R3-CV, 2007 WL 2790681, at *3 (Tenn. Ct. App. Sept. 25, 2007) (providing that

willfulness includes a strategic decision and conduct that is more than mere negligence or

carelessness but is egregious and not satisfactorily explained). However, his neglect was not

excusable because he would have noticed the hearing date if he had simply read the motion

in its entirety. Knowing that Defendants sought an order of dismissal against Plaintiffs, he

also failed to even respond to the motion within a reasonable amount of time. With these

considerations in mind, we conclude that Plaintiffs failed to carry their burden of proving

entitlement to relief under Rule 60.02 of the Tennessee Rules of Civil Procedure.

V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed equally to the appellants,

Christina A. Brown, individually and as next friend of Joshua S. Brown and Jaleigh J.

Brown, and Daniel Robert Nevins, personal representative for the Estate of Barbara Ann

Monnett.

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JOHN W. McCLARTY, JUDGE

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