# FILED October 4, 1995 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT NASHVILL E

_______________________________________________________ ) TERRY J. K

YTE and, ) Da vi ds on Ch an ce ry TERRY T. KIN G, ) No. 91-3319-I ) Plaintiff

s/Appella nts. )

) VS. ) C.A. NO. 01A01-9504-CH-00150 ) TENN ESSE E DEPAR TMENT OF ) SAFETY , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery

Court of Davidson County at Nashville. Honorable Irvin H. Kilcrease, Jr., Chancellor
Thomas McKinney, Jr. , Kingsport, Tennessee Attorney for Plain tiffs/App ellants.

Charles W. Burson , Attorney Gene ral and Reporter Jerry L. Smith , Deputy Attorney General Attorneys for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

DISMISSED FARMER, J.
CRAWFORD, J. : (Concur s) KOCH, J. : (Concur s)1 The contested case proceeding was brought pursuant to the Uniform Administrative Procedures Act, T.C.A. § 4-5-101 et. seq.

2 Procedure in confis cation.
. . . . (c)(1) Any

person c laiming a

ny p roperty so seized a s contra

band go ods may , within twenty-one ( 21) days af

ter receipt of notification of seizure, file with the commissioner at Nashville a claim in writing, requesting a hea ring and stating such person's inter est in the articles seized. The in divi dual c ases o f the ap pella nts we re cons olid ated fo r purp oses o f the h earing.

Appellan ts, Terry J. Kyte and Terry F. King, appeal from the judgment entered by the chancery court, affirming the

decision of the commissioner of the Tenness ee Depa

rtment of Safety (Depar tment) to grant the Department's motion for def ault in a c ontested

case proceeding concerning th e s ei zu re of

Ap pe ll an ts ' p ro pe rt y. 1
Appellan ts requested

a hearing before the c ommissioner of safety in ac cordancewith T.C.A. § 53-11-201(c)(1). 2 The or iginal hearin g date wa s postponed at Appellants' request and rescheduled for May

7, 1991. The Department notified counsel for Appellants of the rescheduled hearing date by letter postmar ked March 11, 1991. The letter was sent certifi ed mail, return receipt requested. The po st office fi rst no tifi ed cou nsel o f the l etter 's existence on March 13, 1991 a

nd aga in
on March 21, 1991. Counsel failed to retrieve the letter and it was r eturned to the Department on March26, 1991, marked "unclaimed." Neither A ppellants nor the ir co unsel appeared at the scheduledhearing. The Administrative Law Judge denied the Department's motion for default, but allowedthe Department to proceed with the taking of testimony , outside the presenceof t he A LJ, for purp oses of a

ppeal.
Upon ap peal, the commissioner r eversed the ALJ's decision, determining that counsel hadfailed to

show "good cause" as to why the case should have been continued. The commissioner found that counsel had deliberately neglected to pick up his mail a fter noti fication

from the p ost office and "after being informed by telephone by a repr esen tative of the Department that a docket containing the new hearing date would be mailed to him after he requested a continuance from the first setting, . . ." The

commissioner orde

red Appe llants'propert

y forfeited to the seizing agency and denied their petition for reconsideration.

Ap pel lants sought review in chancery court, alleging, inter alia , that thecommi ssio ner's decision was arbitrary and capr icious, an ab use of discretion and a denial of due rights. The chancery

court upheld the decision, expressly adopting the findings of fact made by

the commissioner. The

court co ncluded a s follows:

The court finds that [Appellants'] counsel received notice of the presenc e of [Appe

llee's ] letter a

t his local post office and

simply neglected his responsibility to retrieve it from the post office after he was twice [notified] that the letter was available for pick up. Th e letter con ta ined notice of the date for the hearing concerning the seizure of [A pp el la nt s' ] p ro pe rt y. Therefore, the Court concludes that there is substantial and material evidence in the record to sustain the Comm issi oner's order granting [Appellee' s] motion for default for the [App ellan ts'] f ailur e to ap pear at the sc hedul ed hear ing.
Appellan ts state the issue on

appeal a s follows:

Whether it is lawfully p ermissibl e to enter a default judgment and[con fisca te App ellan ts'] property in a se izure and forf

eiture c ase where the petitioners demanded a hearing pursua nt to T.C.A. 53-11- 201 but were not given actual notice of the time, date and place of hearin g.
Appellee raises the following additional issue:

Whether the appeal in this case must be dismissed for failure of the appe llants to f ile a timely

notice of appeal pursuant to [Rule 4 T.R.A.P.].

We first consider the issue raised by Appellee as it addresses this court's jurisdiction. Rule 4(a) T.R .A.P. require s, in an appeal as of right, that a notice of a ppeal be filed "with and received by t he cl er k o f t he tr ia l c ou rt wi th in 30 da ys after the date of entry of the judgment appealed from; . . ." The trial court's judgment was enter ed on October 4, 1994. Appellants did not file thei r notice of appeal until January 4, 1995. On Oct ober 27, 1994, however, the appellants filed a "Mot ion for New Hearing and/or Motion for Reconsideration," denied by the trial c ourt by order entered December 5, 1994. Rule 4(b) T.R.A.P. specifies certain post-trial motions that terminate the running of the 30 d ay

period, i f timely

filed. I t provide s:

In a civil action, if a timely motion under the Te nnessee Rul es ofCivil Procedu re is filed in the trial cou

rt by any party : (1) unde

r Rule 50.02 for judgment in accordance with a motion for a directed verdict ; (2) under

Rule 52 .02 t o amen d or ma ke add itio nal fi ndin gs of fact, whether

or not an alteration of the judgment would be required if the motion is granted; (3) under Rule 54.0 4(2) to assess costs; (4) under Rule 59.02 for a ne w trial; (5 ) under R ule 59.04 to alter or amend the judg ment; the time for a ppeal for all parties shall run from the ent

ry of the order denying a new trial or granting or denying any other such motio n. (Emphasis added.)
Appellee asserts that Appellants' notice of appeal, filed a pproximately 90 day s after the trial court's entry

of judgment, is untimely beca use the post-trial motion was merely a " motion for reconsideration," not contemplated under Rule 4(b), and thus, insufficient to toll the 30 day filing period. App ellee c it es Gassaway v . Patty , 604 S.W.2d 60 (Tenn. App. 1980) and State ex rel. Metropolitan Knoxville v. City of Alcoa , No. 03A01-9307-CH-00264 (Tenn. App. filed March 31, 1994). It ap

pears th at the courts in both these cases, however , were c onfronted with motio ns to reconsi d er

previously filed post-trial motions. See Gassaway , 604 S.W.2d a t 61; State ex rel

. Metropolit

an Knoxville , slip op. a

t 9-11. Rule

59.01 T.R. C.P. read s:

Motions to which th

is rule is a

pplicabl e are: ( 1) under

Rule 50.02 for judgment in accordance with a motion for a directed v erdict; (2) unde

r Rule 52. 02 to amend or make additiona l finding s of fact, whether or not an a lteration of the judgment would be required if the motion i s gr anted; (3) under 59.02 for a new trial; or (4) under Rule 59.04 to alter or amend the judgment. These motions ar e the only motions contemplated in these rules for extending the time for taking steps in the regular a ppellate process. Motions to reconsider

an y of these motions are not authorized and wi ll not operate to extend the time f or app ellate pro ceedings . (Emphasi s added.)

The motion filed by Ap pel lants doe s not seek reconsi deratio n of any

previous ly f

iled motion ; it request s either th

e gran ting of a new tria l or rec onsi deration of

the judg ment, whic

h we view

as a motion to alter or amend. Both t hese motions are included within Rules 59.01 T.R.C.P. and 4(b) T.R.A.P.

A motion for a new tri al or a mo tion to alter or amend the judgment must be filed and served within 30 da

ys a fter judg ment entr y. R ule 59.02 T.R.C.P.; Rule 59 .04 T.R.C.P. The appella nts' post-trial motion, having been filed on October 27, 1994, com plies with these rules. Thus, in accordance with Rule 4(b), the time for filing the notice of appea

l did not be gin to ru

n until3 The rules are formally identified as the "Uniform Rules of Procedure for Hearing Contested Cases before State Administrative Agencies." December

5, 1994 when the trial cou rt enter ed its ord er deny ing Appe llants'motion. We conclude th at th e n ot ic e o f a pp ea l, fi le d w it hi n t hi rt y da ys t he re of , i s t im el y.

We now turn to the mer

its of this appeal. T.C.A. § 4-5-307(a) provides that, "[i]n a contested case, all parties shall be afforded an opportunity for hearing after reasonablenot ice ." It is the appellants'contenti on that re asonable notice under the s tatute contemplate s actual notice before their propert y may be for

feited and that

any thing le ss constitu

tes a den ial of the ir due pr ocess ri ghts. In this respect, Appellants argue that the appellee did not comply with the rules promulga ted by the administrative procedures division, in accor dance with the UAPA, regarding the ser vice of notice. The rule s, 3 as here

pertine nt, provid e as follo ws:

1360-4-1-.0 6 SERVICE OF NOTICE O F HEARING. (1) In any ca se in whi ch a party ha s requested a hearing from an agency

and provided the agency wi th an address , a copy of the

n otice o f hearing shall , within a reasona ble time be

fore the hearing , be deliv ered to the party to be af

fected at the addres s provided, by certified or registered mail, personal service, or service by the method

s set forth in paragraphs (2) and (3) of this rule. (Emphasis added.)
Paragraph

(2) prescribes the service o f notice in cases " in which a

n agency is initiating proceedings against a pa rty by bringing charge s, by attempt ing to tak e action

agains t a license , or by

other simi lar acti on . . . ." Under th is paragraph, service is re quired no later than 30 da ys prior to the hearing date. Parag raph (3) provi des for ser vice of notice by mail, without the necessi ty of a return receipt, if the

law gov erning

the age ncy includesa statute

allowing for such and there is, likewise, a statute requiring the person to keep the a gency informed of his or her current address
. Paragraph ( 3) lists certain factors to be considered when a motion for de fault is made agains ta party being noticed pu rsuant to t his paragraph wh o fails to r eceive "actual se rvice." These factors include: whether any other attempts at actual service were made; whether

and to what extent actual service is practicable; what attempts were made toget in contact with the party by telephone andotherwise; and whether the agency has actual knowledge or reason to know that the party maybe located elsewhere than the addre ss to which the notice was mailed.

As we interpret the foregoing rule, service of notice may be accomplished

by certified
or registered mail. I

f a return receipt is not required, howeve r, the enumerated factors in parag raph (3) are to be cons idered w

hen ruling on a mo tion for d efault.
Appellan ts do not co ntend tha

t the appe llee failed to mail a notice of the scheduled hearing date by ce

rtified mail to counsel. Nor do they dispute the failure of counsel to retrieve the letter. Moreo ver, t he findings made by the commissioner to this effect were concurred in by the chancellor

and are conclusive upon t h is Court. See CF Industries v. Tennessee Pub. Serv. Comm'n , 599 S.W.2d 536, 540 (Tenn. 1980).

We review the commissioner's decision, as did the trial court, in acc ordancewit h T.C. A. § 4- 5-322 (h), p rovid ing:

The court may aff irm the decision of the agency or remand the case for further p roceedings. The court may reverse or modify

the decision if the rights of the petitioner have been pre judiced b ecause the administr

ative findings, inferences, conclusions or decisions are: (1) I n violation

of constitutional or

statutory provision s; (2 ) In ex ce ss of

th e s ta tu to ry a ut ho ri ty o f t he ag en cy; (3) Made upon unlawful procedure; (4) Ar bitrary or c apricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or (5) Unsupported by evide nce which is both substantial and material in the light of the entire record.

We find none of the proposed violations in the record before us a nd conclude that the chancery court
was cor rect in a ffirming the deci sion of the

commissioner to gr

ant Appellee'smotion for default
.

The judgmen

t of the tr ial cour t is affir med and th

is cause di smissed. Co sts are taxed to Te rr y J. Kyt e a nd Te rr y F. Ki ng , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

________________________________ FAR MER , J.______________________________

CRAWFORD, J. (Concurs )

______________________________ KOCH, J. (Co ncurs)