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FILED

June 5, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MABEL DONNELLY, ) C/A NO. 03A01-9610-CV-00323

 )

Plaintiff-Appellant, )

 )

 )

 )

 ) APPEAL AS OF RIGHT FROM THE

v. ) CARTER COUNTY CIRCUIT COURT

 )

 )

 )

 )

ROBERT E. WALTER, M.D. and )

HERMITAGE NURSING HOME, )

 ) HONORABLE G. RICHARD JOHNSON,

Defendants-Appellees. ) CHANCELLOR, By Interchange

For Appellant For Appellee Walter

BOB McDANIEL GREEN CHARLES T. HERNDON, IV

Johnson City, Tennessee Herndon, Coleman, Brading & McKee

Johnson City, Tennessee

For Appellee Hermitage 

Nursing Home

N.R. COLEMAN, JR.

DANIEL D. COUGHLIN

Milligan & Coleman

Greeneville, Tennessee

O P I N I O N

AFFIRMED AND REMANDED Susano, J.
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Plaintiff Mabel Donnelly (Donnelly) appealed the trial

court’s denial of her motion to reconsider a grant of summary

judgment to the defendants Dr. Robert E. Walter (Dr. Walter) and

Hermitage Nursing Home (Hermitage). She presents for our review

the question of whether the denial of her motion to reconsider

was an abuse of the trial court’s discretion. For their part,

the defendants contend that Donnelly’s appeal should be dismissed

because of her failure to serve a copy of the notice of appeal on

the clerk of this court. We affirm.

I

Donnelly filed suit on December 22, 1994, to recover

damages for personal injuries allegedly caused by the malpractice

of Dr. Walter and Hermitage. Hermitage filed a motion for

summary judgment, supported by the affidavit of one of its

nurses, Dorothy Holsclaw, who had attended Donnelly during the

latter’s stay at the nursing home. Dr. Walter also filed a

motion for summary judgment, which he supported with his personal

affidavit. Donnelly failed to submit any opposing affidavits or

other properly verified material in response to either motion.

II

Donnelly’s counsel received a notice from the

defendants’ counsel advising him that they would argue their

motions to the court on December 18, 1995. The hearing took

place as scheduled, but neither Donnelly nor her attorney

attended. In their absence, the trial court granted summary
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The motions were heard a few days shy of a year after the complaint was

filed, and approximately two months after the last motion was filed.

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judgment to both defendants. Two days later, Donnelly filed a

motion to reconsider, asking the trial court to reinstate her

case on the docket or, in the alternative, to allow her to take a

voluntary nonsuit. The trial court denied Donnelly’s motion,

finding that her counsel had received adequate notice of the

hearing. The court also noted that the plaintiff had neglected

to submit any material in opposition to the defendants’ motions.1

The court held that Donnelly had failed to demonstrate that she

was entitled to relief under Rule 60.02, Tenn.R.Civ.P., by reason

of mistake, inadvertence, surprise or excusable neglect.

III

We first address the argument of the defendants that

Donnelly’s failure to serve a copy of her notice of appeal on the

appellate court clerk in accordance with Rule 5(a), T.R.A.P,

warrants a dismissal of this appeal.

Since the defendants filed their briefs, this identical

issue has been addressed by the Supreme Court, in the case of

Cobb v. Beier, ___ S.W.2d ___, No. 03S01-9610-CV-00106 (Tenn.,

filed April 28, 1997, Drowota, J.)(for publication). In the Cobb

case, the Supreme Court found that to dismiss an appeal for this

reason alone would be to elevate form over substance, thereby

“imped[ing] the search for justice.” Id. The Supreme Court

stated that
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Counsel states in his affidavit that he mistakenly went to the

courthouse in Johnson City. The hearing had been noticed for and was held in

Elizabethton.

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all cases presently on appeal in which the

clerk of the appellate court was not timely

served a copy of the notice of appeal, should

not be dismissed for failure to comply with

Rule 5(a), T.R.A.P.

Id. (Emphasis in original). Relying on Cobb, we hold that the

defendants’ issue with respect to the notice of appeal is without

merit.

IV

Donnelly raises as her sole issue the question of

whether the trial court abused its discretion when it denied her

motion to reconsider the grant of summary judgment. Her counsel

admits that he received adequate notice of the hearing on the

summary judgment motions; he contends, however, that his failure

to appear at the hearing was “inadvertent and due to excusable

neglect.”2 Donnelly also argues that the trial court erroneously

viewed her motion to reconsider as a motion for relief under Rule

60.02, Tenn.R.Civ.P.; she contends that her motion should have

been treated either as a motion to set aside a default, as

addressed in Rule 55.02, Tenn.R.Civ.P., or as a motion to alter

or amend a judgment, in accordance with Rule 59.04, Tenn.R.Civ.P.

We believe, in this instance, that any such distinction

is immaterial. Regardless of the category to which the motion is

properly assigned, the question is the same: Did the trial court

abuse its discretion? It is clear that “[t]he setting aside of
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[a] summary judgment... lies within the sound discretion of the

Trial Court.” Marr v. Montgomery Elevator Co., 922 S.W.2d 526,

528 (Tenn.App. 1995); see also Henson v. Diehl Machines, Inc.,

674 S.W.2d 307, 310 (Tenn.App. 1984)(“the setting aside of a

judgment addresses itself and lies within the sound discretion of

the court.”); Keck v. Nationwide Systems, Inc., 499 S.W.2d 266,

267 (Tenn.App. 1973). We do not find it necessary to determine

the proper rule authority for Donnelly’s motion.

The circumstances of this case do not demonstrate an

abuse of discretion. Assuming, solely for the purpose of

argument, that counsel’s failure to go to the correct courthouse

for the hearing was excusable, we cannot overlook the fact that

Donnelly failed to support his motion to reconsider with any

evidence making out a disputed material fact regarding the merits

of the lawsuit. There was absolutely no reason to set aside the

summary judgments in the absence of some indication that the

plaintiff had a response to the defendants’ properly supported

motions.

It is well-established that “a motion for summary

judgment goes directly to the merits of the litigation, and a

party faced with such a motion may neither ignore it nor treat it

lightly.” Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Fowler

v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978). The

facts of this case show that Donnelly utterly failed to satisfy

her burden to respond to the defendants’ properly supported

motions.
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Donnelly relies on the case of Campbell v. Archer, 555

S.W.2d 110 (Tenn. 1977), for the proposition that a trial court

may grant relief from a judgment in this situation, if the

failure to appear is not willful. We find that Campbell is

distinguishable from the instant case. In Campbell, a party’s

new attorney arrived after the commencement of the proceedings

because he had not been notified of the trial date by his

client’s prior counsel. In its opinion, the Supreme Court

assigned most of the blame to the former counsel, rather than the

new attorney, who had not received any notice of the trial. 

Campbell thus presents a different scenario from the instant

case, since Donnelly’s attorney had received sufficient notice of

the time and place of trial. Furthermore, the instant case

involves another distinguishing feature--the failure of Donnelly

to submit affidavits or other material identified in Rule 56.03,

Tenn.R.Civ.P., in opposition to the motions for summary judgment. 

Campbell does not support Donnelly’s request for relief in this

case.

The judgment of the trial court is affirmed. 

Costs on appeal are assessed to the appellant and her surety. 

This case is remanded to the trial court for collection of costs

assessed there, pursuant to applicable law.

__________________________

Charles D. Susano, Jr., J.
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CONCUR:

_________________________

Houston M. Goddard, P.J.

_________________________

William H. Inman, Sr.J.