IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 28, 2015 Session

SOUTHEAST BANK & TRUST v. JOSEPH CALDARERA ET AL.

 Appeal from the Chancery Court for McMinn County

No. 2012-CV-278 Jerri S. Bryant, Chancellor

No. E2015-00353-COA-R3-CV – Filed December 4, 2015

In this declaratory judgment action, one of the co-defendants filed an answer and 

counterclaim that was dismissed by the trial court upon motion of the plaintiff. Nearly 

two years later, the co-defendant filed a motion pursuant to Tennessee Rules of Civil 

Procedure 59 and 60.02, seeking relief from the order dismissing his counterclaim. Said 

co-defendant asserted that he was never served with the motion to dismiss or the order of 

dismissal, despite the representation of service by mail pursuant to the certificates of 

service contained within those pleadings. The trial court conducted a hearing on the codefendant‟s motion for relief from the earlier order, allowing the co-defendant to present 

evidence to rebut the presumption of proper service based on the certificates of service. 

The court subsequently denied the co-defendant‟s motion for relief from the earlier order, 

determining that he had not presented clear and convincing evidence to rebut the 

presumption of proper service. The co-defendant has timely appealed. Discerning no 

error, we affirm.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY and JOHN W. MCCLARTY, JJ., joined.

John T. Rice, Chattanooga, Tennessee, for the appellant, Joseph Caldarera.

Jerrold D. Farinash and Andrea Hayduk, Chattanooga, Tennessee, for the appellee, 

SouthEast Bank & Trust.
2

OPINION

I. Factual and Procedural Background

This case originated with the filing of a declaratory judgment action by SouthEast 

Bank & Trust (“the Bank”) against Joseph Caldarera and Tennessee Log & Timber 

Homes, Inc. (“TLTH”). According to the Bank‟s complaint, Mr. Caldarera had ordered a 

log home package and windows from TLTH, but he had either returned the items to 

TLTH after they were shipped or rejected them before they were delivered. The Bank 

asserted that TLTH had defaulted on certain debts owed to the Bank, such that the Bank 

had taken possession of TLTH‟s inventory, including the building materials ordered by 

Mr. Caldarera. The Bank sought a judgment declaring that it had a perfected security 

interest in the building materials that were part of TLTH‟s inventory and that such 

interest maintained priority over any ownership interest Mr. Caldarera might claim 

therein.

Mr. Caldarera, proceeding pro se, filed an answer and counterclaim, insisting that 

the building materials belonged to him and that the Bank had wrongfully seized them. 

The Bank subsequently filed a motion to dismiss Mr. Caldarera‟s counterclaim, asserting 

that the counterclaim failed to state a claim upon which relief could be granted. The 

Bank‟s motion to dismiss bears a certificate of service demonstrating that it was mailed to 

Mr. Caldarera at the address he listed on his answer and counterclaim. Mr. Caldarera did 

not file a response to the motion or appear at the motion hearing. The trial court granted 

the motion to dismiss, certifying its order as a final order pursuant to Tennessee Rule of 

Civil Procedure 54.02. A copy of that order was mailed to Mr. Caldarera at the same 

address. 

Thereafter, the Bank filed a motion for summary judgment with respect to its 

claims against Mr. Caldarera. The motion‟s certificate of service does not demonstrate, 

however, that the motion was mailed to Mr. Caldarera. The trial court entered an order 

granting the Bank‟s motion for summary judgment on February 26, 2013. The order 

granting summary judgment also does not indicate that it was mailed to Mr. Caldarera. 

The Bank subsequently took a voluntary nonsuit regarding its claims against TLTH on 

March 8, 2013. Months later, on May 1, 2014, Mr. Caldarera filed a motion for relief 

from the order granting summary judgment, claiming that he was not served with the 

motion. Due to the defect in the certificate of service, the parties drafted an agreed order

that was entered by the court, setting aside the grant of summary judgment. 

Mr. Caldarera also filed a motion seeking to amend his answer and counterclaim. 

The trial court denied the motion to amend the counterclaim, which had been dismissed, 

but allowed Mr. Caldarera to amend his answer. Mr. Caldarera subsequently filed a 
3

motion seeking to set aside the November 7, 2012 order dismissing his counterclaim

pursuant to Tennessee Rules of Civil Procedure 59 or 60.02. He claimed that he had not 

been served with the motion to dismiss despite the fact that the motion bore a certificate 

of service indicating that the motion had been mailed to him. The court held an 

evidentiary hearing regarding this motion on January 6, 2015, allowing Mr. Caldarera to 

present evidence in support of his claim that he had not been served with the motion to 

dismiss. The court later entered an order denying Mr. Caldarera‟s motion for relief

because Mr. Caldarera could not rebut the presumption of proper service. The Bank 

subsequently took a voluntary nonsuit regarding its claims against Mr. Caldarera. Mr. 

Caldarera timely appealed.

II. Issues Presented

Mr. Caldarera presents the following issues for our review, which we have restated 

slightly:

1. Whether Mr. Caldarera was a proper party to the declaratory judgment 

action.

2. Whether the trial court erred in dismissing Mr. Caldarera‟s counterclaim.

3. Whether the trial court erred in denying Mr. Caldarera‟s motion to amend 

his counterclaim.

4. Whether the trial court erred in denying Mr. Caldarera‟s motion to set aside 

the order dismissing his counterclaim.

III. Standard of Review

As our Supreme Court has elucidated with regard to motions seeking relief from a 

prior judgment or order:

Tennessee law is clear that the disposition of motions under Rule 

60.02 is best left to the discretion of the trial judge. Underwood v. Zurich 

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

817 S.W.2d 16, 18 (Tenn. 1991); McCracken v. Brentwood United 

Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). The 

standard of review on appeal is whether the trial court abused its discretion 

in granting or denying relief. This deferential standard “reflects an 

awareness that the decision being reviewed involved a choice among 

several acceptable alternatives,” and thus “envisions a less rigorous review 
4

of the lower court‟s decision and a decreased likelihood that the decision 

will be reversed on appeal.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 

524 (Tenn. 2010).

A trial court abuses its discretion when it causes an injustice by 

applying an incorrect legal standard, reaching an illogical decision, or by 

resolving the case “on a clearly erroneous assessment of the evidence.” Id.

The abuse of discretion standard does not permit the appellate court to 

substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42 

S.W.3d 82, 85 (Tenn. 2001). Indeed, when reviewing a discretionary 

decision by the trial court, the “appellate courts should begin with the 

presumption that the decision is correct and should review the evidence in 

the light most favorable to the decision.” Overstreet v. Shoney’s, Inc., 4 

S.W.3d 694, 709 (Tenn. Ct. App. 1999); see also Keisling v. Keisling, 196 

S.W.3d 703, 726 (Tenn. Ct. App. 2005).

Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010).

IV. Ruling on Motion to Vacate Order Dismissing Counterclaim

Mr. Caldarera posits that the trial court erred in denying his motion seeking relief 

from the order entered on November 7, 2012, which dismissed his counterclaim. We 

determine this issue to be dispositive because, inasmuch as the Bank has nonsuited all of 

its claims, there is nothing to adjudicate if Mr. Caldarera has no viable remaining 

counterclaim.

1

 Mr. Caldarera claimed in his motion that he had not received either the 

motion to dismiss or the respective order granting dismissal, which the Bank‟s counsel 

had mailed to his address. The Bank insists that the trial court‟s ruling on the Tennessee 

Rule of Civil Procedure 60.02 motion was correct because there was no basis for relief 

from the prior order. We agree with the Bank.

Regarding proper service of a motion, this Court has previously explained:

“Service by mail is complete upon mailing.” Tenn. R. Civ. P. 5.02. 

 

1 Although not properly raised as an issue, the Bank asserts in its brief that Mr. Caldarera‟s appeal from 

the trial court‟s February 12, 2015 order is improper because that order merely granted a nonsuit as to the 

Bank‟s claims against Mr. Caldarera but did not address any of the substantive issues raised in the appeal. 

We disagree, however, noting that the February 12, 2015 order was the final order of the trial court that 

disposed of all claims against all parties. See Tenn. R. App. P. 3(a). As our Supreme Court has 

explained, a final judgment is “one that resolves all the issues in the case, „leaving nothing else for the 

trial court to do.‟” In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (quoting State ex rel. 

McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997)). 
5

Proof of service “may be by certificate of a member of the Bar of the Court 

. . . or by any other proof satisfactory to the court.” Tenn. R. Civ. P. 5.03. 

“There must of necessity be a very strong presumption as to the correctness 

of a return of service, signed by an officer of the court, or else court 

proceedings would frequently degenerate into unprovable wrangling over 

the collateral matter of service.” Harris v. Hensley, No. M1999-00654-

COA-R3-CV, 2000 WL 630924, at *3 (Tenn. Ct. App. May 17, 2000). 

Thus, “[a] certificate of service is prima facie evidence that a motion 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.” 

McBride v. Webb, No. M2006-01631-COA-R3-CV, 2007 WL 2790681, at 

*3 (Tenn. Ct. App. Sept. 25, 2007) (citing Or v. Or, No. 01-A-01-9012-CH00464, 1991 WL 226916 at *4 (Tenn. Ct. App. Nov. 6, 1991)).

Although failure to serve a proper party may lead to reversal of the 

judgment against that party, “[a] simple denial of service by a party is never 

sufficient to set aside a judgment.” Harris, 2000 WL 630924, at *3 (citing 

State ex rel Agee v. Chapman, 922 S.W.2d 516, 518 (Tenn. Ct. App. 1995); 

Posey v. Eaton, 77 Tenn. (9 Lea) 500 (1882)). “That is not to say that [the] 

presumption may not be rebutted, if the testimony of a party is supported by 

other disinterested witnesses or by corroborating circumstances.” Id.

(citing See Cullen v. Maxey Camping Ctr. v. Adams, 640 S.W.2d 22 (Tenn.

Ct. App. 1982); Brake v. Kelly, 189 Tenn. 612, 226 S.W.2d 1008 (Tenn.

1950)). “[T]here obviously exists the possibility of proof that a document 

was not received even though a certificate of service appears on it.” Estate 

of Vanleer, 2002 WL 32332191, at *8. However, “[t]he burden is on the 

complaining party to show by clear and convincing evidence that he was 

not served.” Id. (citing O.H. May Co. v. Gutman’s Inc., 2 Tenn. App. 43 

(1925)). Rebuttal evidence of non-receipt creates an issue of fact for the 

court to resolve. In re Adoption of S.A.W., No. M2007-01690-COA-R3-PT, 

2008 WL 820540, at *1 (Tenn. Ct. App. Mar. 26, 2008) (citing U.S. Life 

Title Ins. Co. of New York v. Dept. of Commerce & Ins., 770 S.W.2d 537, 

542 (Tenn. Ct. App. 1989)).

Zulueta v. Montgomery, No. M2009-02406-COA-R3-CV, 2010 WL 3170774 at *3 

(Tenn. Ct. App. Aug. 11, 2010).

In this case, the only evidence presented by Mr. Caldarera regarding his alleged 

non-receipt of the mailed motion to dismiss were his testimony and that of his wife that 

neither had received the motion. Mr. Caldarera admitted, however, that the address he 

listed on his answer and counterclaim, which was the address subsequently used by the 
6

Bank‟s counsel to send his mailings, was his business address and that he was seldom 

there. Mr. Caldarera and his wife stated that there were two or three other employees 

who worked at the office and could have opened the mail. With regard to this testimony, 

the trial court made the following findings:

Tiffany Williams [Caldarera] testified she is currently living with 

Mr. Caldarera but has no ownership interest in the property. She stated that 

she was the marketing director at the time the Motions in this matter were 

filed. Her day to day duties were to collect rent, manage Mr. Caldarera‟s 

business, and bring him his personal mail in the evenings. She did not 

maintain the Tennessee Log & Timber file and was unaware of this case in 

2012. Mr. Caldarera kept his own Tennessee Log & Timber file. Ms. 

Williams was not aware of what was kept in the file, nor its location, and 

would ordinarily take mail to him at his home . . . . It was [Mr. 

Caldarera‟s] testimony that he did not receive the Motion to Dismiss the 

Counter-Claim nor the Order granting it. The Certificate of Service signed 

by counsel for the Plaintiff in this matter shows that the Motion to Dismiss 

and Order granting it were sent to the same address that Mr. Caldarera 

provided in his Answer and Counter-Claim. Mr. Caldarera testified on 

cross-examination that he hired an attorney, John Rice, on 3/14/12.

Based on the proof presented, we agree with the trial court‟s conclusion that Mr. 

Caldarera did not, by clear and convincing evidence, rebut the presumption of service 

created by the certificate of service. Mr. Caldarera‟s evidence establishes little more than 

a “simple denial of service,” which is insufficient for a grant of Rule 60 relief. See 

Zulueta, 2010 WL 3170774 at *3. 

In addition, Mr. Caldarera‟s motion for relief, pursuant to Tennessee Rule of 

Civil Procedure 60.02, appears to be untimely. Rule 60.02 provides for relief, “upon 

such terms as are just,” from final judgments, orders, or proceedings based on the 

following grounds:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether 

heretofore denominated intrinsic or extrinsic), misrepresentation, or other 

misconduct of an adverse party; (3) the judgment is void; (4) the judgment 

has been satisfied, released, or discharged, or a prior judgment upon which 

it is based has been reversed or otherwise vacated, or it is no longer 

equitable that a judgment should have prospective application; or (5) any 

other reason justifying relief from the operation of the judgment. The 

motion shall be made within a reasonable time, and for reasons (1) and (2) 
7

not more than one year after the judgment, order or proceeding was entered 

or taken.

(Emphasis added.) Mr. Caldarera‟s motion for relief recites that it is based upon 

subsections (1), (2), and (5) of Rule 60.02. Mr. Caldarera‟s motion pursuant to Rule 

60.02(1) or (2) was clearly untimely inasmuch as it was filed more than one year after the 

order was entered. 

 Similarly, with regard to Mr. Caldarera‟s motion for relief pursuant to the “catchall” provision in Rule 60.02(5), Tennessee courts recognize that “[a]lthough motions 

based on Rule 60.02(5) are subject only to the „reasonable time‟ limitation, Rule 60.02(5) 

has been construed narrowly by Tennessee‟s courts.” Silliman v. City of Memphis, 449 

S.W.3d 440, 447 (Tenn. Ct. App. 2014) (internal citations omitted). Based on Mr. 

Caldarera‟s admission that he had retained counsel as early as 2012, we must conclude 

that his motion, which was filed nearly two years after entry of the order, was not filed 

within a reasonable time. Furthermore, “[r]elief under Rule 60.02(5) is only appropriate 

in cases of overwhelming importance or in cases involving extraordinary circumstances 

or extreme hardship.” See Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 

2000); Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). Upon our careful 

review of the record, we conclude that Mr. Caldarera has not demonstrated that he is 

entitled to relief pursuant to Tennessee Rule of 60.02(5) or any other subsection of Rule 

60.02. The trial court properly denied Mr. Caldarera‟s motion for relief based on both 

grounds and timeliness.

V. Remaining Issues

Having determined that Mr. Caldarera was not entitled to relief from the order 

dismissing his counterclaim, we also determine that the trial court did not err in denying 

Mr. Caldarera‟s motion to amend his counterclaim because it had already been dismissed. 

Furthermore, inasmuch as the Bank has nonsuited all of its claims against Mr. Caldarera, 

we determine that his remaining issues on appeal are pretermitted as moot. 

VI. Conclusion

For the foregoing reasons, we affirm the trial court‟s judgment in all respects. 

Costs on appeal are taxed to the appellant, Joseph Caldarera. This case is remanded to 

the trial court, pursuant to applicable law, for collection of costs assessed below.

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE