1 Court of Appeals Rule 10(b): The Court, with the concurrence of all judges part icipating in the

case, may affirm, reverse or modify

the act ions of t he tria l court by memorandum opi nion when a formal

opinion would have no precedential value. When a case is decided by memorandum o pinion, it shall be desi

gnated "MEMORANDUM OPINIO N," shall not be published, and shall not be cited or relied on for any reason in a su bsequen t unrelated ca se. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE August 6, 2001 Session RAYMOND G. PRINCE, P .C. v. MANFRED POLK Appeal from the Circuit Court for Davidson County No. 00C713 Barbara N. Haynes, Judge

No. M2000-01859-COA-R3-CV - Filed August 14, 2001

T his matter originated from a default judgment g

ranted in genera

l sessions court ag

ainst Appellant/Defe

ndant, Manfred Polk, for payment of attorney’s fees. Appellant filed a Rule 60.02 Motion to Vacate the default judgment, which was denied; an appeal

to the circuit court, which was dismissed for failure to set; followed by a Motion to Reinstate and Motion to Set, which were denied. Defendant now appeals the denial of the Motion to Reinstate and Motion to Set claiming a violation of due process and abus e of discretion on the part of the circuit court. We affirm the circuit court’s d

ismissal of these mo

tions. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed W ILLIAM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S. and P ATRICIA J. C OTTRELL , J., joined. Manfred Polk, Brentwood, Tennessee, Pro Se. Raymond G. Prince, Nashville, Tennessee, Pro Se. MEMORANDUM OPIN ION 1 This m atterbegan when Derrick B. Polk, son of Appellant/Defendant, Manfred Polk, was involved in an auto accident. This accident precipitated hiring Plainti ff/Appellee, Raymond G. Prince, as his attorney. Plaintiff was hired to represen t Defendant’s s on in an action aga inst his insurance company for bene fits due under an i

nsurance policy . Plaintiff subse quently withdrew fro m-2-

the case and requested that Defendant or

his son pay the outsta

nding attorney fe

es. Defendant w

rote two letters to Plaintiff affirming that he would pay the bill but never did. Pla intiff filed suit on Februa

ry 12, 1999 in David

son County Genera

l Sessions Co

urt fo r payment of attorney’s fees totaling $897.50. Service of process was obtained on February 19, 2000; a default judgment for $879.50 was entered against Defendant on June 4, 1999. Defendant did not appeal the default judgme nt. Eight months later, on Februa ry 10, 2000, Appell

ant filed a Rule

60.02 Motion to Vacate

Default Judgment, Answer and Counter-Claim, and Affidavit in support thereof in general sessions court. The Motionto Vacate was de nied. Defendan

t then appealed th

is denial to Davidson County Circ

uit Court but failed

to obtain a trial date

within 45 days as required by Local Rule 20(b). The circuit court dismissed D efenda nt’s appeal. Def endant then filed

a Motion to Reinstate and a Motion to Set. These Motions were denied. This appeal followed. Defendant

argued on appeal that the judge abused her discretion in failing to grant his Motion to Reinstate and that his due process rights were violat e d. The court finds

Defendant’s ar

guments to be without any merit whatsoever. Defendant,

alleges himself to be an atto rney licensed to practice law in the state of New Jersey, was served with process and failed to take any ac tion regarding the matter. Even after a default judgme nt was entered, Defendant failed to take any action for another 8 months, at which time he filed a Rule

60.02 Motion t o Vacate. No app eal was ever fil

ed from the actua

l default judgment. As such, this case could not haverightfully been before the circuit court. The time for a ppeal had run, and Rule 1 of the Tennessee Rules of Civil Procedure specifically stat es, “Thes e rules shall not be applicable to courts of general s ession.” Thus, the Rule 60.02 motion was improper. However, this issue was neve r dealt with by the circuit court, as Defendant, once again, failed to follow court rules and

did not file a motion t

o set withing 45 days

pursuant to

Local Rule 20(b). As a result, his appe

al was rightfully

dismissed. Defendant then tried to have his appeal reinstated, but the court denied his Motion to Reinstate and Motion to Set. The facts of this case reveal absolutely no evidence of abuse of discretion on the part of the circuit court. Further, Defendant was given adequate notice and several opportunities to be heard, negating any allegation of a due process violation. The fact that he defiantly failed to take advantage of these opportunities, including oral argument requested before the Court of Appeals, cannot be the basis for finding lack of due process or abuse of discretion and further reveals the

frivolous nature andthe incongruous purpose of this appeal. The judgment of the circuit cour t is affirmed i n all respects. Further, as this appeal was instituted without any legal or factual basis and merely for the purposes of delay, costs of this cause and attorney’s fees incurred by Plaintiff are ass

essed against Appellant. Tenn. Code Ann. § 27-1-122. The case is remanded to the trial court for

determination of the amount of at

torney’s fees.

___________________________________ WILLIAM B. CAIN, JUDGE