IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS SEPTEMBER 19, 2003

BOBBY R. ESSARY v. JOHN R. ESSARY

Direct Appeal from the Chancery Court for Gibson County at Trenton

No. 14912-P & 15117-P Consolidated George R. Ellis, Chancellor

No. W2003-00299-COA-R3-CV - Filed December 31, 2003

This case involves a Chancery Court’s denial of the Appellant’s Motion to Set Aside Judgment

pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. For the following reasons, we

affirm the lower court’s denial of this motion and remand for further proceedings.

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

ALAN E. HIGHERS,J., delivered the opinion of the court, in which DAVID R.FARMER,J., and HOLLY

M. KIRBY, J., joined.

Marcus M. Reaves, Denmark, TN, for Appellant

Stephen L. Hughes, Milan, TN, for Appellee

OPINION

Facts and Procedural History

The parties to this appeal are the two adult children of Ruth N. Essary (“Ruth” or

“Deceased”). The dispute between the parties arose prior to Ruth’s death when John R. Essary

(“Appellant”), Ruth’s son, transferred Ruth’s real property to himself pursuant to a power of

attorney. Ruth’s other son, Bobby R. Essary (“Appellee”), subsequently filed a petition to set aside

this transfer and appoint a conservator for Ruth. 

During these proceedings, Appellee sought visitation rights with Ruth and obtained such

rights by court order on September 22, 2000. However, Ruth passed away only days later on

September 27, 2000. The court below dismissed Appellee’s petition for a conservatorship for

Deceased and reserved all other matters pending an order of the court. 
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On October 6, 2000, Appellee filed a petition to establish a lost will dated May 24, 1996, and

codicil dated April 16, 1997, of Deceased. In December 2000, Appellant filed an answer to this

petition and asserted that a will dated February 10, 1999, naming Appellant the executor of

Deceased’s estate, should control. The trial court consolidated all matters between the parties

pursuant to Rule 42.01 of the Tennessee Rules of Civil Procedure and certified the will contest to

the Circuit Court of Gibson County. 

Upon a motion for summary judgment by Appellee, the Circuit Court found the instrument

offered by Appellant invalid and remanded all other pending issues back to the Chancery Court of

Gibson County. A hearing for the remaining issues between the parties was set for November 21,

2002. Though Appellant had significant contact with his attorney, was notified by his attorney the

hearing was on November 21, 2002, and spoke with his attorney on two occasions on the day before

the hearing, Appellant failed to appear in court for the hearing on this date and was represented by

counsel only. The trial court entered a judgment against Appellant on the pending issues. 

In response, Appellant moved to set aside the Chancery Court’s judgment pursuant to Rule

60.02. In that motion, Appellant stated that his error was due to his mistake in writing down

December 21, 2002, as the date for the hearing and “the stress and strain that this matter [had] placed

on [Appellant].” After holding a hearing on this motion, the trial court denied Appellant’s motion

and Appellant timely appealed to this Court. The following issues are presented for our review:

I. Whether the trial court correctly denied Appellant’s motion to set aside the

judgment pursuant to Rule 60.02; and

II. Whether this appeal is frivolous and devoid of merit such that Appellee

should be awarded damages in the form of attorney’s fees and costs pursuant

to Tenn. Code Ann. § 27-1-122.

For the following reasons, this Court affirms the decision of the trial court and remands for further

proceedings.

Standard of Review

It is within the sound discretion of the trial judge whether to grant a motion based on Rule

60.02 grounds. For this reason, our review of such a decision is an abuse of discretion standard.

Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993) (citing Banks v. Dement Constr. Co.

Inc., 817 S.W.2d 16, 18 (Tenn. 1991); Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991)).

We are also mindful that “[t]he weight, faith and credit to be given to any witness’ testimony lies in

the first instance with the trier of fact, and the credibility accorded will be given great weight by the

appellate court.” First Nat’l Bank of Shelbyville v. Mut. Benefit Life Ins. Co., 732 S.W.2d 278, 280

(Tenn. Ct. App. 1987) (citing Town of Alamo v. Forcum-James Co., 327 S.W.2d 47 (Tenn. 1959);

Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844 (Tenn. Ct. App. 1982)).

Rule 60.02 Motion to Set Aside
This Court also notes that December 21, 2002, fell on a Saturday when the courthouse would be closed. 1

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Appellant argues the trial court abused its discretion when it refused to set aside the judgment

based on Appellant’s mistake of failing to appear in court on the hearing date. Rule 60.02(1) of the

Tennessee Rules of Civil Procedure states that “[o]n 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 . . .

.” Tenn. R. Civ. P. 60.02(1). The Tennessee Supreme Court has also declared:

[T]he mere negligence or inattention of a party is no ground for vacating a judgment

against him. Carelessness is not synonymous with excusable neglect. Mere

forgetfulness of a party to an action is not a sufficient ground for vacating or setting

aside a judgment by default. Parties are not justified in neglecting their cases merely

because of the stress or importance of their own private business and such neglect is

ordinarily not excusable.

Food Lion, Inc. v. Wash. County Beer Board, 700 S.W.2d 893, 896 (Tenn. 1985) (quoting 46 Am.

Jur. 2d Judgments § 718 (1969); citing Dudley v. Stiles, 386 P.2d 342 (Mont. 1963)).

Appellant argues that his mistake of writing down the wrong day for the hearing in addition

to the “stress and strain” of the trial is sufficient cause to set aside the final judgment against him

pursuant to Rule 60.02. We disagree. In this case, Appellant and his counsel both stated that they

were in almost daily contact in the weeks before the trial and that Appellant spoke with this attorney

twice on the day before trial. Additionally, in the supporting affidavit to Appellant’s motion to set

aside the final judgment, Appellant admits that his attorney advised him of the correct day for the

hearing on November 21, 2002. The fact that Appellant wrote December 21, 2002, rather than 1

November 21, 2002, and that the proceedings were a strain on him falls far short of warranting the

extraordinary relief of setting aside a final judgment in this case. Therefore, the trial court did not

abuse its discretion when it refused to set aside the final judgment against Appellant.

Damages from Appeal

Appellee argues that Appellant’s appeal is frivolous and, therefore, requests this Court grant

him the costs of this appeal, including attorney’s fees incurred on this appeal. Tenn. Code Ann. §

27-1-122 (2000) states:

When it appears to any reviewing court that the appeal from any court of record was

frivolous or taken solely for delay, the court may, either upon motion of a party or of

its own motion, award just damages against the appellant, which may include, but

need not be limited to, costs, interest on the judgment, and expenses incurred by the

appellee as a result of the appeal.

“An appeal is deemed frivolous if it is devoid of merit or if it has no reasonable chance of success.”

Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2001) (citing Bursack v. Wilson, 982
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S.W.2d 341, 345 (Tenn. Ct. App. 1998); Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn.

Ct. App. 1995)). 

After our review of the record, we agree with Appellee that this appeal is frivolous. The

record is simply devoid of any evidence that the trial court abused its discretion by refusing to grant

Appellant his motion to set aside the judgment. Considering the admissions made by Appellant and

his attorney concerning the amount of contact the two had and that his attorney had advised him of

the correct trial date, this appeal had no reasonable chance of success. Therefore, we remand this

case to the Chancery Court for an assessment of costs and attorney’s fees in favor of Appellee under

Tenn. Code Ann. § 27-1-122.

Conclusion

For the foregoing reasons, we affirm the decision of the trial court and remand for further

proceedings consistent with this opinion. Costs are judged against Appellant, John R. Essary, and

his surety, for which execution may issue if necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE