IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 24, 2017 Session

KRISTINA ABOLINS, ET AL. v. FRANK SANTAS, ET AL.

Appeal from the Chancery Court for Davidson County

No. 15-1315-II William E. Young, Chancellor

No. M2017-00357-COA-R3-CV

This appeal concerns an order to set aside a default judgment. Kristina Abolins and 

Christopher Heath Hawkins (“Plaintiffs”) sued Frank Santas (“Santas”), doing business 

as Gunner Inc., and Alta Horizon, Inc. (“Defendants,” collectively), asserting a number of 

causes of action arising out of Defendants’ work on a renovation project at Plaintiffs’ 

home. After several months with no responsive filing from Defendants, Plaintiffs moved 

for default judgment. The Chancery Court for Davidson County (“the Trial Court”) 

granted Plaintiffs’ motion for default judgment. Defendants filed a motion to set aside 

default judgment, raising certain defenses and taking issue with service of process. The 

Trial Court entered an order granting the motion to set aside on the condition that 

Defendants pay Plaintiffs’ attorney’s fees and expenses. Defendants did not pay, and 

instead appealed to this Court. We find no abuse of discretion by the Trial Court. We, 

therefore, affirm the judgment of the Trial Court.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, J., joined, and W. NEAL MCBRAYER, J., filed a separate concurring and 

dissenting opinion.

Charles J. Friddell, Nashville, Tennessee, for the appellants, Frank Santas and Alta 

Horizon, Inc.

Jennifer S. Ghanem, Nashville, Tennessee, for the appellees, Kristina Abolins and 

Christopher Heath Hawkins.

10/03/2017
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OPINION

Background

In November 2015, Plaintiffs sued Defendants in the Trial Court seeking damages 

arising from an alleged breach of contract, conversion, violation of the Tennessee 

Consumer Protection Act (“TCPA”), and other causes of action. Plaintiffs alleged they 

had hired Defendants to perform a home renovation project which, according to 

Plaintiffs, never was completed satisfactorily by Defendants.

Plaintiffs attempted to serve Santas individually and as managing agent of Alta 

Horizon by means of the Dickson County Sheriff’s Office. Process was returned with the 

notation “avoiding service” entered. Plaintiffs then hired private process servers to serve

Defendants. According to affidavits by process servers Harold Loux and Kevin Trick, 

Defendants were served on February 23, 2016. The summons return was late-filed in 

December 2016. 

On March 31, 2016, Plaintiffs’ counsel, Jennifer Ghanem (“Ghanem”), spoke with 

Defendants’ counsel, Charles Friddell (“Friddell”), concerning the case. Ghanem 

emailed Friddell a copy of Plaintiffs’ complaint. On April 1, 2016, Friddell sent a letter 

to Ghanem in which he stated that he was not authorized to accept service on behalf of 

Defendants. On April 19, 2016, Friddell informed Ghanem by email that he would file a 

motion to dismiss. However, no motion to dismiss was filed at this stage. Friddell did 

not file an appearance on behalf of Defendants until the filing of Defendants’ motion to 

set aside default judgment.

On May 31, 2016, Plaintiffs filed a motion for default judgment. By July 2016 

order, the Trial Court granted default judgment in favor of Plaintiffs for a total of 

$166,840.98, which included a trebling under the TCPA of $55,613.66 in compensatory 

damages. The Trial Court stated in this order regarding the service of process that: 

“Defendants did not respond to process or participate in the litigation, and a Motion for 

Entry of Default was filed by the Plaintiffs, to which no response was filed as required by 

Rule 55.01 of the Tenn. R. Civ. Pro.”

In October 2016, Defendants filed their motion to set aside default judgment 

pursuant to Tenn. R. Civ. P. 55.02 and 60.02. Defendants also filed a motion to dismiss. 

In their memorandum in support of their motion to set aside default judgment, 

Defendants asserted the following with respect to what they alleged was lack of notice 

and improper service of process:
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The Defendants Motion under Rule 60.02 (1) for mistake, 

inadvertence, surprise or excusable neglect would show unto the Court the 

Sworn Affidavit of Frank Santas, the Declaration of Counsel, Charles J. 

Friddell and the record as reflected in the case file.

The Affidavit of Frank Santas clearly shows that he was served with 

two papers on February 9th, 2016 which are the two Summons as prepared 

and issued by this Court. However, the Affidavit clearly states that no 

Complaint was attached to either of the Summons as required by the law to 

effectively serve a Defendant in this cause. The Affidavit further shows 

that he brought the two Summons to Charles J. Friddell who he directed to 

write a letter informing the Plaintiffs counsel that the Service of Process 

was improperly handled. The Declaration of Counsel as submitted by 

Charles J. Friddell clearly shows that a letter was directed to Plaintiffs 

counsel outlining the objection to the Service of Process by the private 

process service.

Further, the Statement of Counsel clearly show e-mail 

correspondence with Plaintiff’s counsel outlining the irregularities and the 

fact that Gunner, Inc. while previously Administratively Dissolved in 

August of 2015 was reinstated on January 26, 2016 and that Charles J. 

Friddell and agreed to accept Service of Process for Gunner, Inc. from 

Plaintiff’s counsel. Curiously, there is nothing in the Court record with 

respect to any representation or notices of the Motion for Default, the 

Notice of Default Hearing, or the Order as granted in this case.

Further, the Declaration of Counsel as submitted by Charles J. 

Friddell shows that he has received no correspondence other than the letter 

and e-mails Ms. Ghanem, Plaintiff’s counsel [sic]. Neither the Motion nor 

the Notice of Hearing nor the proposed Final Order was submitted to or 

sent as a courtesy to Charles J. Friddell, Attorney.

The Affidavit of Frank Santas also states that due to his turning the 

Summons over to Mr. Friddell, his attorney, that he felt this matter was 

being handled by Mr. Friddell and did not receive the correspondence or 

mail sent from the Plaintiff’s counsel’s office.

On October 21st, 2016 Frank Santas received from the Chancery 

Court Clerk and Master’s Office a Bill of Cost and immediately called 

Charles Friddell to find out what the status of this case was. On October 

23rd, 2016 Charles J. Friddell obtained copies of the Pleadings filed in this 

case after April, 2016 and was advised for the first time that a Judgment, 

including damages assessed of $55,613.66 had since been entered along 

with a Judgment for treble damages of $166,840.98.

***
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Defendants further would show to the Court, pursuant to Rule 

60.02(3) that the entry of a Judgment is void as contrary to the laws of the 

State of Tennessee. Plaintiffs did not properly serve the Defendants as 

required by Rule 4.04(1) and Rule 4.04(4) of the Tennessee Rules of Civil 

Procedure. Plaintiffs did not serve a copy of the Complaint along with the 

two summons.

The Trial Court conducted a hearing on the two motions in November 2016. The 

Trial Court ruled that it would grant Defendants’ motion to set aside default judgment on 

the condition that Defendants pay Plaintiffs’ attorney’s fees and costs. Defendants filed a 

motion to alter or amend judgment, in which they articulated their position in part as 

follows:

Defendants have incurred substantial attorney fees and costs in their 

Motion to Set Aside, appearance and review of other matters. Defendants 

have shown the Court by other averments that substantially the amount of 

fees and delays in this matter could have been minimized had Plaintiffs 

counsel followed the rules and given notice to Mr. Friddell that she was 

filing for a Default Judgment in this matter. Defendants maintain that the 

imposition of fees as a sanction in this regard is inequitable.

***

The Defendants have by sworn affidavit stated that they did not receive the 

Motion for Default Judgment nor the Order of Default. Plaintiffs’ counsel 

relies on the Certificate of Service contained in those documents as filed.

The Certificate of Service by Jennifer S. Ghanem to Alta Horizon, 

Inc. was improperly addressed. The zip code for Bon Aqua, Tennessee is 

37025. The Plaintiffs counsel mailed the letter for Alta Horizon, Inc. to 

37205 which is the zip code for Belle Meade. This clearly rebuts the 

presumption that the Certificate of Service to Alta Horizon, Inc. is 

presumed to be served. It further may explain why the Defendants did not 

receive such notice.

The certificate of service required by Tenn. R. Civ. P. 5.03 is prima 

facia evidence that the document was served in the manner described in the 

certificate and raises a rebuttable presumption that it was received by the 

person to whom it was sent. The defendants contend that the failure of 

Plaintiffs counsel to properly and timely file documents with the Court 

impeaches the certificates as signed and rebuts the presumption. The 

defendants further contend that the failure of Plaintiffs’ counsel to properly 
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address the certificates to Alta Horizon, Inc., as signed rebuts the 

presumption.

In two separate January 2017 orders, the Trial Court denied Defendants’ motion to 

dismiss and granted Defendants’ motion to set aside default subject to condition. In its 

order denying Defendants’ motion to dismiss, the Trial Court stated as follows:

This matter came on for hearing on the 18th day of November, 2016 

upon the Defendants’, Frank Santas d/b/a Gunner, Inc. and Alta Horizon, 

Inc. (“Defendants”), motion to dismiss. The Defendants contend that this 

Court lacks jurisdiction over Defendant Santas, that the Plaintiffs did not 

obtain proper service upon either Defendant Santas d/b/a Gunner, Inc. or

Defendant Alta Horizon, Inc., and that the Complaint fails to state a claim 

against Defendant Alta Horizon, Inc. Upon consideration of the motion, 

the response, the pleadings of the parties, the argument of counsel and the 

entire record, this Court denies the motion to dismiss. This Order 

incorporates and reiterates the ruling made in open court at the November 

18th hearing.

First, the Defendants claim that they were not properly served in 

compliance with Tenn. R. Civ. P. 401(1) and 401(4). The Plaintiffs, 

however, contend that the Defendants were properly served in strict 

compliance with those rules. Tenn. R. Civ. P. 401(1) states that service

shall be made upon an individual “by delivering a copy of the summons 

and of the complaint to the individual personally,” and Tenn. R. Civ. P. 

401(4) provides that service shall be made upon a domestic corporation by 

“delivering a copy of the summons and complaint to an officer or managing 

agent thereof.” The Plaintiffs assert that they retained the services of Loux

Investigations, Inc. to serve a complaint and summons on Frank G. Santas 

both in his personal capacity and in his capacity as the registered agent for 

Gunner, Inc. and Alta Horizon, Inc. The Plaintiffs have filed with the 

Court the affidavits of Harold G. Loux, the president of Loux

Investigations, Inc., and Kevin Trick, who both attested to serving the 

complaints and summons on Mr. Santas on February 23, 2016. The Court 

finds this information sufficient to confirm that service was appropriately 

obtained upon the Defendants and therefore the motion to dismiss for

failure to obtain service should be denied.

Next, the Defendants contend that the Plaintiffs failed to state a 

claim in regard to Defendant Alta Horizon, Inc. It is axiomatic that a 

motion to dismiss under 12.02(6) challenges the legal sufficiency of the 

complaint, not the strength of the plaintiff’s proof. Trau-Med of Am., Inc. v. 

Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). The Court must 
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construe the complaint liberally, presuming all factual allegations to be true 

and giving the plaintiff the benefit of all reasonable inferences. Cullum v. 

McCool, 432 S.W.3d 829, 832 (Tenn. 2013). It is well-settled that a 

complaint should not be dismissed for failure to state a claim unless it 

appears that the plaintiff can prove no set of facts in support of his or her 

claim that would warrant relief. Webb v. Nashville Area Habitat for 

Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). Great specificity in the 

pleadings is ordinarily not required to survive a motion to dismiss; it is 

enough that the complaint set forth “a short and plain statement of the claim 

showing that the pleader is entitled to relief.” Trau-Med of Am., Inc., 71 

S.W.3d at 696. Under this lenient standard, the Court finds that the 

allegations in the Complaint against Defendant Alta Horizon, Inc. are 

sufficient to withstand a motion to dismiss. The Complaint basically 

alleges Defendants were engaged to complete a home renovation project for 

the Plaintiffs and failed to complete the project, resulting in the causes of 

action set forth in the Complaint. These allegations raise factual issues that 

are inappropriate for resolution on a motion to dismiss.

Accordingly, and for the above-stated reasons, the Defendants’

motion to dismiss is hereby denied.

Defendants raise no issue on appeal as to the Trial Court’s denial of their motion to 

dismiss.

In its order granting Defendants’ motion to set aside the default judgment, the 

Trial Court stated as follows:

This matter was heard on November 18, 2016 on the Defendants’

motion to set aside the default judgment entered by this Court on July 7, 

2016. Upon consideration of the pleadings of the parties, the argument of 

counsel and the entire record, this Court finds that the Order of default 

judgment shall be set aside provided the Defendants pay the attorneys’ fees 

and expenses incurred by the Plaintiffs, Kristina Abolins and Heath 

Hawkins (“Plaintiffs”), in filing the motion for default judgment, pursuing 

collection of that judgment and responding to the motion to set aside the 

default judgment. This Order incorporates and reiterates the findings of 

fact and conclusions of law stated by this Court following the hearing of 

this matter.

Plaintiffs’ counsel has submitted a detailed statement that the abovecited fees and expenses total $9,935.93. The Court finds this amount 

reasonable and related to matters involving the default judgment. These 

fees and expenses shall be paid within thirty (30) days of entry of this 
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Order. Once these fees and expenses are paid, the Plaintiffs shall file with 

this Court written notice of the payment and such notice will trigger the 

setting aside of the default judgment per this Order. If these fees and 

expenses are not paid by the date required by this Order, then the Plaintiffs 

will file written notice of non-payment with this Court and the default 

judgment will remain in effect.

BACKGROUND

The Plaintiffs filed the Complaint in this case on November 2, 2015, 

seeking a judgment for damages against the Defendants for breach of 

contract, breach of implied warranty, negligence, fraud, conversion and 

violation of the Tennessee Consumer Protection Act codified at Term. 

Code Ann. §§ 47-18-101 to -131. These claims arose out of the 

engagement by the Plaintiffs of the “Defendant Santas, doing business as 

Gunner, Inc. and Alta Horizon, Inc. to complete a home renovation project 

on the property located at . . . .” Complaint, ¶ 8. 

The Plaintiffs initially sought to serve process under Tenn. R. Civ. 

Proc. 4.04 on the Defendant Frank Santas, on his own behalf and as the 

officer or managing agent of the Defendant Alta Horizon, thru the Dickson 

County Sheriff’s Office. The process was returned to this Court as not 

served, with a notation that the Defendants were not found and were 

“avoiding service.” The Plaintiffs then retained Loux Investigations, Inc. to 

obtain service on the Defendants. Per the affidavits of private process 

servers Harold Loux and Kevin Trick, filed as Exhibit C with the Plaintiffs’ 

response to the Defendants’ motion, the Defendants were served on 

February 23, 2016. For some reason, the summons evidencing such service 

was not initially returned to this Court. On December 1, 2016, the 

summons evidencing service was late filed with the Court.

The Plaintiffs state in their response that Plaintiffs’ counsel, Ms. 

Ghanem, initially discussed this case by telephone with Defendants’ current 

counsel, Mr. Friddell, on March 31, 2016. By letter dated April 1, 2016 

attached as Exhibit D to the Plaintiffs’ response, Mr. Friddell disputed that 

service on his clients had been properly obtained and also stated that he was 

not authorized to accept service on behalf of his clients. Ms. Ghanem 

advised Mr. Friddell that service was properly obtained, and she 

subsequently emailed a copy of the Complaint to Mr. Friddell. Per an 

email attached as Exhibit D to the Plaintiffs’ response, Mr. Friddell advised 

Ms. Ghanem on April 19, 2016 that he would file a motion to dismiss the 

Plaintiffs’ Complaint.
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After the passage of about 40 days with no responsive filing by the 

Defendants, on May 31, 2016 the Plaintiffs filed a motion for default 

judgment with the Court. The certificate of service states that the 

Defendants were mailed a copy of the motion. Mr. Friddell was not served 

with the motion, apparently because he had not filed an appearance on 

behalf of the Defendants in this case. No one appeared for the Defendants 

at the June 24, 2016 hearing on the default judgment motion. The Court 

entered an Order on July 7, 2016 granting default judgment in favor of the 

Plaintiffs for $55,613.66 for compensatory damages, in addition to treble 

damages, for a total judgment of $166,840.98. The Order noted that 

“Defendants did not respond to process or participate in the litigation.”

Approximately four months later, on October 28, 2016, Mr. Friddell, 

on behalf of the Defendants, filed a motion to set aside this default 

judgment pursuant to Tenn. R. Civ. Proc. 55.02 and 60.02. This motion 

included the Declaration of Mr. Friddell and the Affidavit of Mr. Santas. 

Mr. Santas disputed the allegations in the Complaint, specifically stating no 

written contract for renovations on the Plaintiffs’ house had been entered 

between the Defendants and Plaintiffs and that Mr. Santas was just 

performing “pro bono” work in assisting the Plaintiffs with these 

renovations. Mr. Santas further stated that, if any contract did exist, it 

would be between the Plaintiffs and “Gunner, Inc.”, a Tennessee 

corporation that, as of August 2015 when this Complaint was filed, was not 

active and had been administratively dissolved.1The Defendants also 

contest that they were properly served under Tenn. R. Civ. Proc. 4.04.

ANALYSIS

Rule 60.02 motions should be viewed liberally when the movant 

seeks relief from a default judgment. Pryor v. Rivergate Meadows 

Apartment Associates Ltd. P’ship, 338 S.W.3d 882, 885 (Tenn. Ct. App. 

2009) (citing Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 866 

(Tenn.1985)). A request to vacate a default judgment in accordance with 

Rule 60.02 should be granted if there is reasonable doubt as to the justness 

of dismissing the case before it can be heard on the merits. Id. (citing Tenn. 

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

courts have recognized that “default judgments run counter to the judicial 

system’s general objective of disposing of cases on the merits.” Henry v. 

Goins, 104 S.W.3d 475, 481 (Tenn. 2003). When a party seeks Rule 60 

relief from a default judgment based on mistake, inadvertence, surprise, or 

 

1 Mr. Santas stated that Gunner, Inc. was reinstated on January 26, 2016.
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excusable neglect, the Court considers the following factors: 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.

In this case, the Court finds that the aforementioned three factors, 

coupled with the preference in Tennessee law of trying a case on the merits 

rather than entering a judgment by default, militate in favor of setting aside 

the prior order granting a default judgment. Having so determined, the 

Court does find the default “willful” in this case. Both the Defendants and 

Defendants’ counsel were aware of the Complaint - indeed the Complaint 

was emailed to the Defendants’ counsel more than 40 days before the 

motion for default judgment was filed. Despite knowledge of the existence 

of the Complaint, the Defendants took no action to respond or to make an 

appearance in this case. The Defendants contended service of process was 

not properly made, but failed to file a motion to dismiss or other responsive 

motion asserting insufficiency of service of process. The Defendants failed 

to respond to the motion for default judgment once filed. Despite this 

inaction by the Defendants, the Court finds that the Defendants, per the 

affidavit of the Defendant Santas, have raised possible meritorious 

defenses, including their denial that the Defendants had any written or oral 

agreement with the Plaintiffs to perform the renovations in question. 

Further, there is no evidence that the delay caused by the filing and granting 

of the default judgment will adversely impact the Plaintiffs’ ability to try 

this matter. As Tennessee courts have recognized, the mere passage of time 

or simply proceeding to trial does not constitute prejudice sufficient to 

avoid a trial on the merits. Patterson v. Sun Trust Bank, 328 S.W.3d 505, 

512-13 (Tenn. Ct. App. 2010).

Nonetheless, despite finding the default judgment should be set 

aside, the Court is concerned that the Plaintiffs have suffered needless cost 

and expense occasioned by the Defendants’ failure to promptly address this 

Complaint once they were advised of its existence. The Defendants, rather 

than taking action to address this litigation, chose to ignore it. They took 

no action after being served with process on February 23, 2016. They 

failed to take any action in April of 2016 after Plaintiffs forwarded the 

Complaint to Defendants’ counsel, which prompted the Plaintiffs to file a 

motion for default judgment 40 days later. Then, once a default judgment 

was entered, the Defendants did not seek to set aside that judgment until 

four months had passed. Tenn. Rule Civ. Proc. 62.02 provides that a trial 

court may set aside a prior judgment “upon such terms as are just.”

Tennessee courts have specifically found that this authority includes 

permitting a trial court the discretion to condition relief from a default 
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judgment on the defaulting party’s payment of attorneys’ fees and expenses 

incurred by the non-defaulting party when the default was occasioned by 

the action, or in this case the inaction, of the defaulting party. Morrow v. 

Butcher, C.A. No. 702, 1987 WL 15523, at *3 (Tenn. Ct. App. Aug. 13, 

1987) (affirming trial court’s conditioning of set aside of default judgment 

upon payment of attorney’s fees and costs by defaulting party to nondefaulting party where the fees ordered to be paid were “occasioned by the 

default judgment proceedings” caused by the defaulting party); see also 

Qualls v. Qualls, 589 S.W.2d 906, 910-11 (Tenn. 1979). Therefore, in 

order to set aside this default judgment, justice requires the Defendants to 

first compensate the Plaintiffs for the attorneys’ fees and expenses they 

have incurred in obtaining the default judgment, seeking to execute on that 

judgment and then having to defend against setting that motion aside.

Based upon the Court’s above finding, which was announced at the 

conclusion of the hearing of this matter, the Court requested that the 

Plaintiffs’ counsel file with the Court her affidavit documenting the 

reasonable attorneys’ fees and expenses incurred by the Plaintiffs in 

connection with the default judgment at issue. In her subsequently filed 

affidavit, Plaintiff’s counsel detailed fees and expenses totaling $9,935.93 

that were incurred as a result of the default judgment proceedings. The 

Court has carefully reviewed this affidavit and finds these fees and 

expenses reasonable. 

On December 5, 2016, prior to the entry of this Memorandum and

Order, the Defendants, Frank Santas d/b/a Gunner, Inc. and Alta Horizon, 

Inc. (“Defendants”), filed a “Motion for an Order to Alter or Amend 

Judgment” in response to this Court’s oral findings at the November 18, 

2016 hearing of this matter. The Court has reviewed the motion and, for 

the reasons set forth in this Memorandum and Order, declines to alter or 

amend its findings.2

CONCLUSION

Accordingly, the July 7, 2016 Order granting default judgment 

against the Defendants shall be set aside provided the Defendants pay the 

 

2 Among other arguments, the Defendants assert that their actions in failing to respond to the Plaintiffs" 

various pleadings must be “willful” in order to warrant an award of attorney’s fees to Plaintiffs. While 

the Court does find the Defendants’ actions were “willful”, a “willful” action is not necessary to sustain 

an award of fees and expenses. Instead, the appropriate standard, as referenced in the above-cited Morrow

and Qualls cases, is for the trial court, in the exercise of its discretion, to draft a remedy that is “just.” 

This may include compensation to a party harmed by the action or inaction of another party who fails to 

respond to pleadings, leading to the entry of a default judgment.
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$9,935.93 in attorneys’ fees and expenses incurred by the Plaintiffs in filing 

the motion for default judgment, pursuing collection of that judgment and 

responding to the motion to set aside the default judgment. These fees and 

expenses shall be paid within thirty (30) days of entry of this Order. Once 

these fees and expenses are paid, the Plaintiffs shall file with this Court 

written notice of the payment and such notice will trigger the setting aside 

of the default judgment per this Order. 

Should Defendants or their legal counsel fail to meet the conditions 

set forth hereinabove, and upon written notice to this effect given to the 

Court by the Plaintiffs’ counsel, this Order of Conditional Relief shall be 

vacated, and the motion to set aside the default judgment shall be denied for 

want of compliance.

Finally, the December 5, 2016 Motion to Alter or Amend Judgment 

is denied.

(Footnotes in original). 

Defendants filed a notice of appeal. After 30 days elapsed, Plaintiffs filed a notice 

with the Trial Court informing of Defendants’ failure to pay attorney’s fees and expenses. 

In March 2017, the Trial Court entered an order denying Defendants’ motion to set aside 

default judgment for want of compliance:

This matter came on for hearing on the 18th day of November, 2016 

at 9:00 a.m., upon the Motion to Set Aside the Default Judgment filed by 

Defendants’ Frank Santas d/b/a Gunner, Inc. and Alta Horizon, Inc. 

(“Defendants”). On January 10, 2017, the Court entered an Order setting 

aside the Default Judgment, provided that Defendants pay the $9,935.93 in 

attorney’s fees and expenses incurred by Plaintiffs within thirty (30) days 

of the Court’s entry of its Order. The Court further stated that if 

Defendants or their legal counsel fail to meet the stated conditions above, 

the Order of Conditional Relief shall be vacated and the Motion to Set 

Aside the Default Judgment shall be denied for want of compliance, upon 

written notice to the Court by Plaintiffs’ counsel.

As of February 24, 2017, more than thirty (30) days after the Court’s 

Order, Defendants and their legal counsel have failed to pay the $9,935.93 

in attorney’s fees and expenses incurred by the Plaintiffs as set forth in the 

Court's Order on January 10, 2017. Therefore, Defendants’ Motion to Set 

Aside the Default Judgment shall be denied for want of compliance.

Following the Trial Court’s March 2017 order, Defendants filed an amended notice of 

appeal to this Court.
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Discussion

Although not stated exactly as such, the sole issue Defendants raise on appeal is 

the following: whether the Trial Court abused its discretion in imposing as a condition to 

granting Defendants’ motion to set aside default judgment the payment of attorney’s fees 

and expenses to Plaintiffs in the amount of $9,935.93.

As pertinent, Tenn. R. Civ. P. 55.02 provides that “[f]or good cause shown the 

court may set aside a judgment by default in accordance with Rule 60.02.” Tenn. R. Civ. 

P. 55.02. We review a trial court’s decision with regard to Tenn. R. Civ. P. 60.02 

motions for abuse of discretion. Ferguson v. Brown, 291 S.W.3d 381, 386 (Tenn. Ct. 

App. 2008). 

In pertinent part, Tenn. R. Civ. P. 60.02 provides:

60.02. Mistakes—Inadvertence—Excusable Neglect—Fraud, etc.— 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; . . . 

Tenn. R. Civ. P. 60.02 (italics added).

The standard of review for the sole issue presented on this appeal is that of abuse 

of discretion, a relatively deferential standard. Our Supreme Court has expounded upon 

the abuse of discretion standard as follows:

The abuse of discretion standard of review envisions a less rigorous 

review of the lower court’s decision and a decreased likelihood that the 

decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility, 

288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 

S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the 

decision being reviewed involved a choice among several acceptable 

alternatives. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. 

App. 1999). Thus, it does not permit reviewing courts to second-guess the 

court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. 

App. 1999), or to substitute their discretion for the lower court’s, Henry v. 

Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970 

S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review 

does not, however, immunize a lower court’s decision from any meaningful 
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appellate scrutiny. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 

(Tenn. Ct. App. 2002).

Discretionary decisions must take the applicable law and the relevant 

facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp. 

Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d 

652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays 

beyond the applicable legal standards or when it fails to properly consider 

the factors customarily used to guide the particular discretionary decision. 

State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its 

discretion when it causes an injustice to the party challenging the decision 

by (1) applying an incorrect legal standard, (2) reaching an illogical or 

unreasonable decision, or (3) basing its decision on a clearly erroneous 

assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn. 

2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 

S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of 

Nashville, 154 S.W.3d at 42.

To avoid result-oriented decisions or seemingly irreconcilable 

precedents, reviewing courts should review a lower court’s discretionary 

decision to determine (1) whether the factual basis for the decision is 

properly supported by evidence in the record, (2) whether the lower court 

properly identified and applied the most appropriate legal principles 

applicable to the decision, and (3) whether the lower court’s decision was 

within the range of acceptable alternative dispositions. Flautt & Mann v. 

Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) 

(quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co., 

No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No 

Tenn. R. App. P. 11 application filed)). When called upon to review a 

lower court’s discretionary decision, the reviewing court should review the 

underlying factual findings using the preponderance of the evidence 

standard contained in Tenn. R. App. P. 13(d) and should review the lower 

court’s legal determinations de novo without any presumption of 

correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. 

Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.

Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010).

Defendants argue in their brief on appeal that: “The failure to give Notice in 

accordance with Davidson County Local Rule 5.04(14) in that an adverse action was 

taken against a represented party and the failure to serve Notice as required by Tennessee 
-14-

Rules of Civil Procedure 5.02 to the Attorney representing the Defendants are material 

factors that would have mitigated any damages . . . subsequently incurred.” Plaintiffs,

for their part, argue in their brief on appeal that: “[W]hile Defendants contended that 

service was improper, the Chancery Court clearly stated that Defendants failed to file a 

motion to dismiss or other responsive motions asserting insufficiency of service of 

process.”

In Morrow v. Butcher, we affirmed the trial court in its determination that the 

defendant had to pay the plaintiff’s attorney’s fees before the default judgment would be 

set aside. We concluded as follows:

In this case, defendant clearly failed to comply with the established 

rules of procedure, but nevertheless was granted relief. The condition of 

the relief was that defendant should bear the burden of the expenses her 

action had caused. From this record we can find nothing to indicate any 

unfairness in such a ruling. The chancellor properly exercised his 

discretion in refusing to set aside the default judgment unless defendant 

paid the additional fees incurred by plaintiff.

Morrow v. Butcher, C.A. No. 702, 1987 WL 15523, at *3 (Tenn. Ct. App. Aug. 13, 

1987), no appl. perm. appeal filed.

As shown in the “upon such terms as are just” language of Tenn. R. Civ. P. 60.02 

and the precedent of Morrow, Tennessee courts may impose certain conditions before

setting aside default judgments. The only question raised in this appeal is whether the 

Trial Court abused its discretion in conditioning the granting of Defendants’ motion to set 

aside default judgment on their paying Plaintiffs’ attorney’s fees and expenses in the 

amount of $9,935.93. The Trial Court specifically found:

[T]he Court does find the default “willful” in this case. Both the 

Defendants and Defendants’ counsel were aware of the Complaint - indeed 

the Complaint was emailed to the Defendants’ counsel more than 40 days 

before the motion for default judgment was filed. Despite knowledge of 

the existence of the Complaint, the Defendants took no action to respond or 

to make an appearance in this case. The Defendants contended service of 

process was not properly made, but failed to file a motion to dismiss or 

other responsive motion asserting insufficiency of service of process. The 

Defendants failed to respond to the motion for default judgment once filed.

We find no evidence in the record on appeal that would serve to overturn these factual 

findings made by the Trial Court. 
-15-

Defendants state that “this matter could and would have been avoided if Plaintiffs’ 

counsel followed Rule 5.02 or had simply sent to Mr. Friddell a courtesy copy of the 

Motion for Default, the Order Resetting the Hearing or even the final Default Judgment.” 

The Trial Court found that “[t]he certificate of service [on the motion for default] states 

that the Defendants were mailed a copy of the motion. Mr. Friddell was not served with 

the motion, apparently because he had not filed an appearance on behalf of the 

Defendants in this case.” First, while sending Friddell, who had told Ghanem he was not 

authorized to accept service for Defendants, a courtesy copy of one or all of those 

documents might represent good practice, Defendants cite to no rule mandating such 

action. It is, after all, called a “courtesy copy.” Second, it is entirely speculative that 

additional communication would have elicited a response from Defendants in light of the 

Trial Court’s finding that Defendants’ failure to respond was willful. If Defendants now 

wish to respond and defend against the lawsuit, it is reasonable to require them to pay for 

the unnecessary expense Plaintiffs incurred in obtaining a default judgment only to have 

it overturned should Defendants comply with the Trial Court’s reasonable condition. 

We have carefully reviewed Plaintiffs’ fee statement contained in the record. We 

find, as did the Trial Court, that these fees and expenses are reasonable and related to 

Plaintiffs’ work in obtaining and later defending the default judgment. We find no abuse 

of discretion in the Trial Court’s conditioning the grant of Defendants’ motion to set 

aside the default judgment on their paying Plaintiffs’ $9,935.93 in attorney’s fees and 

expenses incurred relative to the default judgment. We, therefore, affirm the judgment of 

the Trial Court. 

Although the Trial Court already has entered an order denying Defendants’ motion 

to set aside the default judgment for want of compliance, we hold that, as Defendants 

timely appealed, Defendants have 30 days from the entry of this Opinion and our 

Judgment in which to pay, if they choose, $9,935.93 and thus satisfy the Trial Court’s 

condition to set aside the default judgment. 

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the 

Trial Court for further proceedings consistent with this Opinion and for collection of the 

costs below. The costs on appeal are assessed against the Appellants, Frank Santas and 

Alta Horizon, Inc., and their surety, if any. 

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE