# FILED
October 22, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

WILLIAM SELLERS, ) ) Plaintiff/Appellee, ) ) ) Davidson C ircuit N os. VS. ) 96C-3082 and 96C-3085 ) ) Appeal N o. MICHAEL ANDERSON, ) 01A01-9703- CV-00114 ) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

NASHVILLE, TENNESSEE
THE HONORABLE WALTER C. KURTZ, JUDGE

For the Plaintiff/Appellee : For the D efendant/ Appellant : Philip D. Irwin Robert E . Hoehn Neal & H arwell Rab in P. N immo Nashville, Tennessee Nimm o, Hoehn, Kirt & P artin Nashville, Tennessee



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDG E-2- 

## O P I N I O N This appeal involves the dismissal of a de novoappeal fr om gen eral sess ions courtfor failure to com

ply wi th a local rule requiring that these appeals be set for trial within forty -five day s. A fter the Circuit C ourt for D avidson Count y dism issed his appeal, the appellant filed a Tenn. R. Civ. P. 60. 02(1) motion seeking relief from the judgm ent. The trial cour

t denied the

motion , and the a

ppellant has appea

led to this court. We have determined that the appellant demonstrated grounds for relief under Tenn. R . App. P . 60.02( 1) and accordin gly vac ate the or der denying the appel lant ’s motion for po st-judgment rel ief.
I.
William Sellers sued Micha

el Ander son in the D avid son C ounty General Sessions C ourt seeki ng to recover fo r damages to his real propert y. Mr. Anderson, in turn, filed a similar general session s action ag ainst Mr. Sel lers. Following a hearing on August 8, 1996, the general ses sions court awarde d Mr. Se llers $1, 069 and dismissedMr. Anderson’s warra nt. Mr. Anderson

filed an appeal bond in both cases o n August 16 , 1996. He paid the clerk’s fee on August 21, 1996, and the general sessions records i n both cases were f iled in the C ircuit

Court for Davidson C ounty on August 22, 1996. Shortly after the cases were ap pealed to the circuit court, the lawyer represe nting M r. Anderson telephoned the lawyer representing Mr. Sellers in an ef fort to reach agreem

ent on a date f

or the cir cuit court trial. On Septe mber

23, 1996, after the tel eph on e ca ll pro ved fru it les s, t he l awye r re pre sen ti ng Mr. And ers on ma iled a letter to the lawy er repr

esenting Mr . Selle

rs proposingsix possible trial dates in Ma rch and April1997. He also obtained othertrial dat es in Febr uary a nd March 1997 from

the docket clerk and

communicated these to the lawyer repre senting Mr. Sellers. These efforts to set thecase for trial also proved fruitless, and on October 11, 1996, Mr. Anderson’ s lawy er filed

a mot ion to set the

casefor tria

l. Before this motion could1 A panel of this court has upheld an earlier version of Rule 19 re quiring that

cases appealed from gener al session s court e

ither be set for tr ial or tha t a motion to

set be file d w it hi n t hi rt y da ys of the appeal being filed

in the cir cuit court. See Bendele

v. Powell , Davidson Cir. (Tenn. Ct. App. Feb. 9, 1984), perm. app. denied (Tenn. June 11, 1984).
2 Mr. Anderson has not taken issue with the clarity of Rule 19, andthus we will not consider this issue now. Howe

ver, we notethat it is not clear whether the forty -five day period in Rule 19(b) commences when the appeal bond is filed or when the ge neral sessions record is actually filed in the circuit court. I t is li kewise u

nclear whether Rule 19 requires th at the tri al date mu st occur within forty-five da ys or whether the trialdate must only be deter mined within forty-five da ys. Under the facts of this case, Mr. Anderson did not comply with Rule 19 no matter how it is interpreted. -3- be heard, t

he trial c ourt enter

ed an orde

r on Octob er 18, 1996

di s missing Mr. Anderson’s ap peals in b oth cases for failure t o comply with Rule 1 9(b). On October 31, 1996, Mr. Anderson filed a m otion to set a side the O ctober 18, 1996 order of dismissal an d supported th e moti on with an a ffidavit r ecounting hi s efforts to obtain a trial date by agree ment w ith Mr. Sellers’s lawy er. The record contains no res po ns e to th is moti on . On Dec emb er 2, 1996 , the trial court filed an order denyin g Mr. Anderson’ s motio n, direc ting that his appeals f ro m general sessions court be dismissed, and adopting the general sessions court’s judgments as its own.
II.
This appeal is not a frontal assault on t

he validity

of Rule 19. 1 Rather, Mr. Anderson asserts that the trial court’s interp retatio n of Rule 19 is inconsist ent with the rules and polici es promoting ethica l and good fa

ith dealings between

opposing counsel and that the trial court erred by refusing to grant him equitable relief

from the order dismissing his case before a hear ing on the m erits in c ircuit cou

rt. W hile the trial court correctly interpreted Rule 19, w e have determined that Mr. Anderson made out a basis f

or receiving relief from the dism issal of his case underTenn. R. Civ. P. 60.02(1).
Rule 19 manifests the

comm itmen tof the trial courts in D avidson Count y to the principle that there should be a just, sp eedy, and inexpen sive determination of every case. See Tenn. R. Civ. P. 1. While Rule 19 may not be entirely clear, 2 it is intended to a ssure that appeals f rom general ses sions courts are trie d with dispa tch.-4-

Acc ord ing ly, the rule s imulta neously advances docket cont

rol policie s as well

a s policies favoring the prompt dis positio n of cases.

Mr. Anderson did not com ply with Rule 19 and does not insist on this appeal thathe did. He failed to obtain a trial date wit hin forty -five day s after p erfecti ng his appeal from

general s essions court. Thus, the trial cour

t was ac ting within

its discretio n when it enteredits October 18, 1996 order dism

issing Mr. Anderson’ s case for failure to comply

with Rule 19(b).
The issue of w hether Mr . Ander son present ed adequat

e grounds for reli ef from t he trial c ourt’s O ctober 18, 1996 order is another question w hose answe

r does not depend on the “ correct

ness” of th e Octobe

r 18 , 1996 order, but ra ther on the applicati on of the factors that anima te Tenn. R. Civ. P. 60.02(1). The rule is intended to provide relief f

rom a p arty’s excusable negligen ce or oversi ght, see Tennessee State Bank v. Lay , 609 S.W .2d 52 5, 5 27 (Te nn . Ct . Ap p. 1 98 0), whi le a t th e sa me ti me to strike a

n appropria

te balance b etween t

he competing principles of fin ality and justice. See Fielder v. Lakesite Enters., Inc. , 871 S.W .2d 157, 15 9 (Tenn. Ct. App. 1993).
Persons seeking relief under Tenn. R. Civ. P. 60.02(1) m ust explain why they were justifie d in failingto avoid the mistake, inadverte nce, surpri se, or negle ct. See Travis v. City of M

urfreesboro , 686 S.W .2d 68, 69 (Tenn. 1985); Bivins v. Hospital Corp. of Am. , 910 S.W .2d 441, 446 (T enn. Ct. App. 1995) . Based on the proof offered by t he mo vi ng par ty t o s up po rt i ts cla im, the trialc ourt m ay exe rcise its discret ion to rel ieve the pa rty from the effects of t he judgment. See Underwood v. Zurich Ins. Co. , 854 S.W. 2d 94, 96-97 ( Tenn. 199 3); Day v. Day , 931 S.W .2d 936, 939 (Tenn. Ct. App. 1996).
The dismis sal of a c ase for f ailure to c omply

with Rule

19 is analog ous to granting a default judgment. D efault judgments are n ot favored, and thus Tenn. R. Civ. P. 55.02

perm its trial c ourts to set

aside def ault judgm

ents in accord ance wit

h Tenn. R. Civ. P. 60.02 (1). See Keck v. Nati onwide Sy s., Inc. , 499 S.W .2d 266, 26 73 In light of Rule 19' s strict r

equirem ents, a f ai lu re to re sp on d i n a ti me ly, definitive manner to opposing counsel’ s informa l reques ts to set the

case by ag reement could be construed as an eff ort to manufacture an additional defense rathe r than to simply preserve

an existing one. -5- (Tenn. Ct. App. 1973). W hen asked toset aside a default jud gment , courts s hould construe the rules l i berally

and should set the defa ult aside whenever t

here is a reasonabl e doubt about the justness of dismissing the case before it can be h eard on the merits. See Tennessee Dep’t of Human Servs. v. Barbee , 689 S.W .2d 863, 86 6-67 (Tenn. 198 5). T hey s hould foc us principa lly on whether the

default w as willf

ul, whether the nondefaulting party’s ability to present their c laim will be pr ejudice d, and whether the defaul ting part y has a colorabl e defense to the claim. See In re Estate of Mayes , 843 S.W.2d 418 , 425-26 (Ten n. Ct. App. 1 992); Nelson v. Simpson , 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991).
The circumstances in this case favor gra nting Mr. Anderson rel ief from the October 18, 1996 order. He

did not cause his lawy er to fai l to com ply wi th Rule 19. In fact, his lawy er m ade good faith e fforts to compl y wit h Rule 19 by

requestin g his adversary to agree to a mutually conveni ent trial d ate. Mr. A nd erson’s lawyer comm enced his effor

ts in a tim elymanne

r and woul d have been

able to com

ply wi th Rule 19 had it not

been for his adversary’s unwar ranted refusal to agree to a trial date.
The record does not disclose why Mr. Sell ers’s l awye

r decline d to set the case by agreement. In his brief a nd during oral argument, he explai ne d that he declined to agree to a trial da te becaus e he belie ved that Mr . Ander son had not ap pealed the case in a tim

ely m anner. S etting a ca se by a greem ent does not amount

to a waiv er of meri torious claim s or defen ses. At the same ti me, it saves the parties and the trial courtthe time and exp ense asso ciated wi th a conteste d motio n to set. T hus, the propercour se woul d have been for Mr. Sellers ’s law yer t o agree toa trial da

te and then to file an

appropria

te mot ion or pleading assert

ing all his a

vailable c laims and defenses. 3

Mr. Sellers has prese nted no colorable clai m that he w ill be prej udiced by being required to litigate

this bound ary line suit now as opposed to last year. M r. Ander son’s lawyer’ s failure to com ply wi th Rule 19 w as brought a bout byadversary-6-

coun sel’s unwarra

nted refu sal to set t

he case by

agreem ent
. Accordi ngly, we have determined

thatthe trial

court should

have granted Mr. Anderson’s Tenn. R. Civ. P. 60.02(1) motion for relief from the October 18, 1996 order.

III.
We vacate the o rder denying M r. A n derson re lief fro m the October 18, 1996 order dism

issing his app eal for f

ailure to c omply

with Rule

19 and rem

and the ca se to the trial

court wit h directio ns to restore

this case to the court ’s acti ve do cket. We also tax the cos ts of this a ppeal in eq

ual p r oportions to M ichael Anderson and his surety and to William

Sellers for which execution, if necessary , may issue.

_________________

____________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_________________

_________________ BEN H. CANTRELL, JUDGE