Kia Winfrey v. Blue Car, Inc.

02/26/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 20, 2021 Session

KIA WINFREY v. BLUE CAR, INC.

Appeal from the Circuit Court for Davidson County

No. 19C1730 Kelvin D. Jones, Judge

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No. M2020-00829-COA-R3-CV

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After purchasing an automobile from the defendant, the plaintiff brought suit in the General

Sessions Court for Davidson County, alleging fraud and deception. The defendant filed a

counterclaim for breach of contract. The general sessions court dismissed both parties’

claims and the plaintiff appealed to the circuit court. The case was dormant for nearly six

months. Eventually, the plaintiff moved to set a trial date with the circuit court. In

response, the defendant moved to dismiss the case under Rule 20(b) of the Davidson

County Local Rules of Court. The circuit court granted the defendant’s motion to dismiss

and denied the plaintiff’s subsequent motion to set aside. The plaintiff appealed. We

reverse the trial court’s denial of the plaintiff’s motion to set aside and remand.

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

Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.

David Kozlowski and David J. Tarpley, Nashville, Tennessee, for the appellant, Kia

Winfrey.

Paul J. Walwyn and David Harris, Madison, Tennessee, for the appellee, Blue Car, Inc.

MEMORANDUM OPINION1

1

Rule 10 of the Rules of the Court of Appeals provides as follows:

This Court, with the concurrence of all judges participating in the case, may affirm,

reverse or modify the actions of the trial court by memorandum opinion when a formal

opinion would have no precedential value. When a case is decided by memorandum

I. FACTS AND PROCEDURAL HISTORY

In January 2018, Kia Winfrey (“Plaintiff”) purchased an automobile from Blue Car,

Inc. (“Defendant”) in Davidson County. Under the parties’ sales agreement, Plaintiff

agreed to financing terms that required her to make bi-weekly payments of $225.00 for the

car.

Plaintiff asserts that after she purchased the vehicle, she learned that the car had

several major issues. Plaintiff claims that prior to her purchase, the car was wrecked and

rebuilt. Plaintiff also claims that the vehicle’s mileage was unknown prior to her purchase

but that Defendant wrongfully stated the mileage was 70,438. When Plaintiff learned of

the car’s prior history, she ceased making financing payments to Defendant. As a result,

Defendant repossessed the car and sent a written notice to Plaintiff that stated it intended

to dispose of the vehicle.

On November 30, 2018, Plaintiff filed a pro se complaint with the General Sessions

Court for Davidson County. In this complaint, Plaintiff sought to recover for “fraud” and

“deception during [her] purchase.” In response, Defendant filed a counterclaim against

Plaintiff, seeking damages for an alleged breach of contract. After filing her initial

complaint, Plaintiff retained counsel and moved to file an amended complaint. Plaintiff

was granted relief from the general sessions court and filed an amended complaint on July

12, 2019. In Plaintiff’s amended complaint, she alleged several causes of action, including

an odometer disclosure violation under 49 U.S.C. § 37210, a violation of Article 9 of the

Uniform Commercial Code (as codified under Tennessee Code Annotated section 47-9-

614), and non-compliance with the Tennessee Motor Vehicle Commission rules that

govern the notice requirements for a wrecked and rebuilt vehicle.

On July 12, 2019, the case was tried before the general sessions court. At the

conclusion of trial, the court dismissed both parties’ claims.2 Thereafter, Plaintiff filed a

timely notice of appeal with the Circuit Court for Davidson County. Shortly after Plaintiff

filed her notice of appeal with the circuit court, Plaintiff’s counsel received a letter from

the circuit court clerk. The clerk’s letter stated that under Rule 20(b) of the Davidson

County Local Rules of Court (“Local Rule 20(b)”), Plaintiff was required to set the case

for trial with the circuit court within 45 days of the circuit court clerk receiving her notice

of appeal. Plaintiff’s counsel admits that he received this letter shortly after filing the notice

of appeal and that he understood the Local Rules of Davidson County.

opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and

shall not be cited or relied on for any reason in any unrelated case.

2

The appellate record does not include a transcript or final written order from the proceeding before

general sessions court.

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Despite the time requirements of Local Rule 20(b), neither party took any action on

the case for 172 days after the circuit court clerk received Plaintiff’s notice of appeal. On

January 10, 2020, Plaintiff finally moved to set the case for trial with the circuit court. In

response, Defendant moved to dismiss for Plaintiff’s failure to comply with Local Rule

20(b).

On February 25, 2020, the circuit court entered an order dismissing the case in favor

of Defendant. On March 20, 2020, Plaintiff moved to set aside the circuit court order that

dismissed the case pursuant to Tennessee Rule of Civil Procedure 59.04.3 Plaintiff’s

motion was accompanied by an affidavit of Plaintiff’s counsel and a copy of the general

sessions amended complaint. The affidavit of Plaintiff’s counsel detailed the history of the

case and explained why Plaintiff’s counsel failed to comply with the time requirements of

Local Rule 20(b).4 Defendant responded to Plaintiff’s motion to set aside, relying on Local

Rule 20(b), but it did not offer any countervailing evidence to show why the motion should

be denied. On April 3, 2020, the court entered a second order dismissing the case which

provided additional reasons for its decision, including Plaintiff’s failure to comply with

Local Rule 20(b). Although the subsequent order mentioned Local Rule 20(b), the order

simply stated, “[P]laintiff failed to comply with the provisions of Local Rule 20(b) which

directs that appeals from the General Sessions Court must be set for trial within forty-five

days after the case is appealed.”

On May 15, 2020, the circuit court entered a final order of dismissal.5 In the final

order, the court stated that Plaintiff’s motion to set aside was denied and that the case was

dismissed. The court again referenced Local Rule 20(b) and its 45-day requirement.

Plaintiff timely appealed to this Court.

II. ISSUES PRESENTED

As we perceive it, Plaintiff raises a single issue on appeal:

1. Whether the trial court erred in denying Plaintiff’s motion to set aside on the sole

ground that her attorney did not comply with the scheduling requirements of

Local Rule 20(b).

In response, Defendant asserts that it should be awarded attorney’s fees incurred on

appeal pursuant to Tennessee Code Annotated section 27-1-122.

3

Plaintiff also filed the motion alternatively under Rule 60.02.

4

At oral arguments on appeal, Plaintiff’s counsel indicated that a brief was also filed in support of

Plaintiff’s motion to set aside. However, the brief was not included in the appellate record.

5

The circuit court heard the motion to set aside via conference call due to social distancing

requirements related to the COVID-19 pandemic. However, there is no transcript from this proceeding.

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For the reasons stated herein, the circuit court’s decision to deny Plaintiff’s motion

to set aside is reversed and remanded. We decline to award Defendant attorney’s fees

incurred on appeal.

III. STANDARD OF REVIEW

A trial court’s decision on a Rule 59.04 motion is reviewed under an abuse of

discretion standard. Kirk v. Kirk, 447 S.W.3d 861, 870 (Tenn. Ct. App. 2013); Chambliss

v. Stohler, 124 S.W.3d 116, 120 (Tenn. Ct. App. 2003) (citing Bradley v. McLeod, 984

S.W.2d 929, 933 (Tenn. Ct. App. 1998)). “A court abuses its discretion when it applies an

incorrect legal standard or its decision is illogical or unreasonable, is based on a clearly

erroneous assessment of the evidence, or utilizes reasoning that results in an injustice to

the complaining party.” Runions v. Jackson-Madison Cty. Hosp. Dist., 549 S.W.3d 77, 84

(Tenn. 2018) (quoting Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012)).

IV. DISCUSSION

A. Local Rule 20(b)

At the outset, we again note that Plaintiff filed her motion to set aside under

Tennessee Rule of Civil Procedure 59.04 and alternatively under Rule 60.02. Under either

rule, a party may seek relief from a court’s judgment due to “mistake, inadvertence, or

excusable neglect.” See Tenn. R. Civ. P. 60.02(1); Pryor v. Rivergate Meadows

Apartments Assocs. Ltd. P’ship, 338 S.W.3d 882, 885 (Tenn. Ct. App. 2009). However,

motions made pursuant to Rule 59.04 are appropriate when the judgment is not yet final,

whereas motions made under Rule 60.02 seek relief from final judgments. Thigpen v. First

City Bank, No. 27349, 1997 WL 351247, at *2 (Tenn. Ct. App. June 27, 1997); see also

Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App. 2008).

In this instance, Plaintiff filed her motion to set aside 24 days after the circuit court

entered its initial order dismissing the case. Meaning, the circuit court’s judgment was not

yet final when Plaintiff filed her motion to set aside. See Tenn. R. App. P. 4(a) (stating an

appeal as of right must be filed within 30 days after the entry of the trial court’s judgment);

Thigpen, 1997 WL 351247, at *3. Accordingly, we shall review Plaintiff’s motion under

Rule 59.04.

Turning to the substance of Plaintiff’s Rule 59.04 motion, Plaintiff claims that the

circuit court erred in dismissing her claims under Local Rule 20(b). Local Rule 20(b)

states:

Once the warrant being appealed is received by and filed with the Circuit

Court Clerk, the appellant has the duty to set the appeal for a hearing before

a trial judge. The appellant has forty[-]five (45) days to secure a trial date

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from the [circuit] court. This time is counted from the date the Circuit Court

Clerk files the appealed warrant. If the appellant fails to secure this order

within the 45[-]day time period, an order will be entered making the

judgment of the General Sessions Court the judgment of the Circuit Court

with costs taxed to the appellant. At the time the appeal is perfected in the

Clerk’s office, the clerk shall give the appellant or the appellant’s attorney

written notice of this rule.

“[T]he purpose of Local Rule 20(b) is to assure that cases appealed from general sessions

court to circuit court are tried with dispatch.” Metro Gov’t of Nashville & Davidson Cty.

v. Cuozzo, No. M2007-01851-COA-R3-CV, 2008 WL 3914890, at *2 (Tenn. Ct. App.

2008) (citing Crom-Clark Trust v. McDowell, No. M2005-01097-COA-R3-CV, 2006 WL

2737828, at *2 (Tenn. Ct. App. Sept. 25, 2006)). Dismissal of a case under Local Rule

20(b) is analogous to a trial court granting default judgment or involuntary dismissals for

failure to prosecute. Henry v. Goins, 104 S.W.3d 475, 481 (Tenn. 2003) (stating “[a]

dismissal for failure to prosecute is analogous to a default judgment”); Metro Gov’t of

Nashville & Davidson Cty., 2008 WL 3914890, at *5; Crom-Clark Trust, 2006 WL

2737828, at *2.

Default judgments, dismissals for failure to prosecute, and dismissals under Local

Rule 20(b) are not favored by courts in Tennessee. See Henry, 104 S.W.3d at 481; Metro

v. Gov’t of Nashville & Davidson Cty., 2008 WL 3914890, at*5; Crom-Clark Trust, 2006

WL 2737828, at *3. Dismissals under Local Rule 20(b) are “drastic remedies” and are

reserved for “totally unresponsive parties.” Crom-Clark Trust, 2006 WL 2737828, at *3

(quoting Bowers v. Gutterguard of Tenn., Inc., No. M2002-02877-COA-R3-CV, 2003 WL

22994302, at *7 (Tenn. Ct. App. Dec. 17, 2003)). In deciding whether to grant such a

“drastic remedy,” “courts should construe the rules liberally and should set the default aside

whenever there is a reasonable doubt about the justness of dismissing the case before it can

be heard on its merits.” Metro Gov’t of Nashville & Davidson Cty., 2008 WL 3914890, at

*5. A trial court’s decision to dismiss a case under Local Rule 20(b) is reviewed under an

abuse of discretion standard. Id. at *2.

Courts should focus on three factors when determining whether to vacate an order

of dismissal under Local Rule 20(b): (1) whether the party’s default was willful; (2)

whether the non-defaulting party will be prejudiced if the defaulting party is granted relief;

and (3) whether the defaulting party has a meritorious claim or defense. Id. at *5; see also

Discover Bank v. Morgan, 363 S.W.3d 479, 491 (Tenn. 2012) (stating the factors that

should be considered when determining whether relief from a default judgment should be

granted); Henry, 104 S.W.3d at 481 (stating the factors that should be considered when

determining whether to vacate a default judgment under Rule 60.02(1)).6

6

The Supreme Court in Discover Bank also stated that, when a party seeks relief from a default

judgment under Rules 54.02, 59.04 or 60.02, the “threshold inquiry” for the court is to “determine whether

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In the present case, the proof that was presented to the circuit court on Plaintiff’s

motion to set aside was limited.7 In support of her motion, Plaintiff included a copy of her

amended general sessions complaint and an affidavit of her counsel. The affidavit of

Plaintiff’s counsel sets forth facts that indicate: (1) Plaintiff’s default was not willful and

was only the result of her attorney’s negligent delay; (2) Defendant will not be prejudiced

if Plaintiff’s motion to set aside is granted; and (3) Plaintiff may have a meritorious claim

against Defendant. At oral arguments before this Court, Plaintiff stated that the applicable

factors were argued to the circuit court in a brief that she filed with her motion to set aside.

Regardless, the proof presented by Plaintiff was uncontroverted by Defendant. In

response to Plaintiff’s motion to set aside, Defendant failed to offer any countervailing

evidence to show why the motion should be denied. Without an affidavit of counsel or any

other proof that may have been applicable, Defendant simply filed a one-page response

that relied on Local Rule 20(b). As a result, the only evidence for the circuit court—and

this Court on appeal—to consider was presented by Plaintiff. After considering this

evidence in conjunction with the standard under Local Rule 20(b), we disagree with the

circuit court’s decision to deny Plaintiff’s motion to set aside.

The circuit court’s order that denied Plaintiff’s motion to set aside stated that

Plaintiff failed to comply with the time requirements of Local Rule 20(b). In reviewing

the circuit court’s decision, it appears that the court’s primary consideration in denying the

motion was the passage of time from Plaintiff’s appeal to the circuit court and her motion

to set a trial date. However, in the absence of countervailing evidence by Defendant, we

rely solely on the evidence presented by Plaintiff.

Based on the affidavit of Plaintiff’s counsel, we find that the evidence presented to

the trial court shows that Plaintiff’s delay was not willful, that Defendant will not be

prejudiced if Plaintiff is granted relief, and that Plaintiff may have a meritorious claim. See

Metro Gov’t of Nashville & Davidson Cty., 2008 WL 3914890, at *5 (stating the standard

for reviewing an order of dismissal under Local Rule 20(b)). Accordingly, the trial court

based its decision on a clearly erroneous assessment of the evidence when it denied

Plaintiff’s motion to set aside. See Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.

2010) (stating the abuse of discretion standard of review). Therefore, we must reverse the

circuit court’s denial of Plaintiff’s motion to set aside and remand the case with instructions

for the court to set aside its orders dismissing the case and set the case for trial.

B. Attorney’s Fees

Defendant asks this Court to award it attorney’s fees incurred in this appeal pursuant

the conduct precipitating the default was willful.” Discover Bank, 363 S.W.3d at 493-94.

7

There is no transcript from the telephonic hearing on this motion.

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to Tennessee Code Annotated section 27-1-122, which allows an appellate court to award

attorney’s fees when an appeal is deemed frivolous. See also Selitsch v. Selitsch, 492

S.W.3d 677, 690 (Tenn. Ct. App. 2015) (stating “[a] frivolous appeal is one that is devoid

of merit or has no reasonable chance of success”); Indus. Dev. Bd. of City of Tullahoma v.

Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995) (quoting Combustion Eng’g, Inc. v.

Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978)) (stating “[a] frivolous appeal is one that is

‘devoid of merit’”).

We cannot agree with Defendant’s assertion that this appeal is frivolous.

Accordingly, we decline to award Defendant attorney’s fees incurred on appeal.

V. CONCLUSION

For the reasons stated herein, we reverse the circuit court’s decision to deny

Plaintiff’s motion to set aside and remand for further proceedings consistent with this

Opinion. We decline to award Defendant attorney’s fees incurred in this appeal.

Costs of this appeal are taxed equally to the appellant, Kia Winfrey, and the

appellee, Blue Car, Inc., for which execution may issue if necessary.

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CARMA DENNIS MCGEE, JUDGE

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