### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submi tted on Bri efs Nove mber 1, 2002 Se ssion

BARBARA GAIL COX v. JIM STAFFORD Appeal from the Circuit Court for Washington County No. 7707 Thomas J. Seeley, Jr., Judge FILED DECEMBER 23, 2002
No. E2002-01490-COA-R3-CV

Barbara Gail Cox (“Plaintiff”) purchased a camper from Jim Stafford (“Defendant”) in 1997. The title to the camp er neve r was tra nsferr ed to Plain

tiff’s na me, and, a

pparent ly, still rema

ins in Defendant’s name. Pla

intiff sue d Defen dant in

Genera l Sessions Court and obtained a judgment agains tDefend ant for $ 10,800. D efenda nt appea led to Circ

uit Court. The cas e proce eded to trial in Jun e of 2001. After a jury was selected and some testimony given, Defendant moved for a continuance because a witness had n ot been served with a subpoena. The Trial Court g ranted the continuance conditioned upon De fendant ’s pay

ing cou rt c osts on or before August 31, 2001. Defendant

never paid these costs. I n October of 2001, the Trial Court dismissed the lawsuit and reinstatedthe General Sessions Court verdict. Defendan t filed a motion to alter or amend the judgmen t, or for a new trial, und er Tenn. R. Civ. P. 59, which the Trial Court denied. Defendant appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

D. M ICHAEL S WINEY , J., deliver ed the opinion of the

court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined. Robert Payne Cave, G

reeneville, Tennessee, for the Appe llant, Jim Stafford.
Rober t J. Jess ee, Johnson

City , Ten

ness ee, f or the Appe llee , Bar

bara Gail Cox.-2- OPINION
Introduction

Plaintiff purchased a camper from Def endant in 1997. Title to the camper never was transferred

to Plaintiff’s name. Instead, title appear s still to be in Defendant’s name. In addition, Plaintiff claims to have found problems with the camper after th e sale. Pl aintiff s ued Def

endant in General Sessions Court in 1998, and obtained a judgment aga inst Defendant for $10,800.
Defendant

appealed the General Sessions judgment to Circ uit Co ur t. Ini ti al ly, Defendant

was represented

by Attorney

Roach. Attorney Roac

h was allowed to withdraw from his representationof Defe

ndant in F

ebruar y of 2000. Def

endant th en reta ined Attorn ey Hod ges . In January of 2001, however, Attorney Hodges was granted

leave to withdraw from his representation of Defendant because he had be en u nable to g et in touch with Defendant to discuss the case. Defendant subsequently

retained current counsel.
In the meantime, Plaintiff’s counsel, Attorney Thornton, move d to wit

hdraw from representing P laintiff af

ter Defendant claimed he had bee n to Attorney Thornton’s off ice and discussed the case with someone there prior to Plai ntiff ’s ret ainin g Atto rney Thorn ton. Alth ough neither Attorney

Thornton nor his secretary remembered such a meeting with Def endant, the Trial Courtgrante d Attorne

y Thornton’s motion to withdraw to avoid any possibility

of a violation of the code of e thics. Pla intiff the n retain ed curr

ent couns el.
Trial began on June 26 , 20 01. A jury was selected and some testimony given. Defendant then moved for a continuance because of the absenc e of one witness who had not been ser ved with a subpoena. The Trial Court granted the continuanc e conditioned upon Def endan t paying all court costs on or before August 31, 2001. Defe ndant was present in court when the Trial Court made t his ru ling.

Defendant

did not pay the

court costs as ordered and the Trial Court entere d an order on October 1, 2001, dismissing the cas e and rei nstating the Gene

ral Sessio ns Court ve

rdict. Defendant

then filed a motion to alter or amend the judgment, or for a ne w trial, under

Tenn. R. Civ. P. 59. The Trial Court denied Defendant’s motion in its order entered May 20, 2002. This appeal ensued.
Discussion

Althou gh not stated exactly as such, Def endant raises two issues on appeal: 1) whether the Trial Court abused its discretion when it dismissed the case due to Defendant’s failure to pay court c osts by the specific da te as ordered, and reinstated the General Sessions Court ver dict; and 2) whether the Trial Court abused its discretion when it denied Defendant’s Tenn. R. Civ. P. 59-3-

motion to alter or amend the judgment, or in the alternative f or a new trial. We will address each issue in turn.
Courts have the discretion when granting continuances to impose terms, including ordering the moving

party to pay costs, in order to “further the progre ss of the cause and the ends of just ice.” Ten n. Code Ann. § 20-7-103 (2002). “Trial courts must dispose of pending ca ses and avoid conge stion of the

ir docke ts in orde r to be ef ficient. Accord

ingly , trial co

urts may manage their dockets to move ca ses along with rea sonable

di sp at ch an d m ay, wh en ne ce ss ar y, dismiss a complaint involunta rily when the plaintiff

has failed to prosecute the case.” Wood s v. W orld Truck

Transfer, Inc. , N o. M199 7-00068-COA-R3-CV, 1999 Tenn. App. LEXI S 804, at *25 (Tenn. Ct. App. Dec. 3, 1999), no appl. perm. appeal filed

.

We h old the Trial Court did not abuse its discretion when it granted a continuance conditioned upon Defendant’s pay ment of costs by a ce

rtain date. In addition, we find the situation at hand, i.e ., Defe

ndant’s f ailure to comply with a cou

rt order so that the

case could proceed, similar to a plaintif

f’s fail ure to prosecu

te. We hold

the Tria l Court pro

perly exercise d its righ

t to manage its own docket by dismissing the ca se and reinstating the General Sessions Court judgment.

We next turn to whether

or not the Trial Court abused its discretion when it denied Defendant’s Tenn. R. Civ. P. 59 motion. Defendant sought relief from the Trial Court’s dismissal of the case by m oving, u nder Te nn. R. Civ. P. 59, for th

e judgme nt to be alter

ed or ame nded or, in the alterna

tive, for a new tri al. Defe

ndant’s b rie f, however, cites no cases dealing with Rule 59 motions. Rather, D efenda nt’s brief cites c ases dea

ling with Tenn. R. Ci v. P. 60 motions. We review denials of both Rule 59 and Rule 60 motions under an abuse of discretion standar

d, and wil l addres s boththe denia

l of Defe ndant’s Ru

le 59 motion

and the “ mistake a

nd negl ect” ar

gument, which is actually a Rule 60 a

rgumen t, as conta

ined in Defendant’s short brief. Smith v. Haley , No. E2000- 001203-COA-R3-CV, 2001 Tenn. App. LEXI S 136, at *14 (Tenn. Ct. App. March 2, 2001), no appl. perm. appeal filed

.

Rule 59.04, Tenn. R. Civ. P. allows a party to ask the trial cour t to alter or

amend a judgment within 30 da

ys o f the ent

ry of the jud

gme nt, prior to the judgment becoming final. Si mi la rl y, Rule 59.02, Tenn. R. Civ. P. allows a motion for a new trial if made within 30 days of the entry of judgm ent. Afte r a judg ment bec omes fina l, a party may not seek r

elief un der Rule

59, but may seek relief under Rule 60.02. Tenn. R. Civ. P. 60.02 provides that a “c ourt may relieve a party or the party’slegal rep resentative from a final judgment, order or proceeding” for any

of several specific en umerated reasons, including “mistake, inadver tence, surprise or excusable neglect.” Tenn

. R. Civ. P. 60.02.

When dealing

with an ap

peal of a denia l of relief under Rule 59, Tenn. R. Civ. P., “[o]ur scope of

review i s to deter

mine if the

Trial Cour

t abused its discre

tion in denying the motion.” Smith , 2001 Tenn. App. L EXIS 136, at *1 4 (deali ng with b oth a motion under Te nn. R. Civ. P. 59.04 and one unde

r Tenn. R. Civ. P. 60.02 ); see also Esstman v. Boyd , 605 S.W.2d 23 7, 240 (Te nn. Ct. App. 1979) (stating: “The granting or refusal of a

new trial rests largely

in the discretion of the Trial1 This c ase i nvol ved t wo cons oli dated acti ons f or alleged dam ages to plaintiffs’ property caused by wrongful diver sion o f surface waters b y the de fenda nts. Ca mp bell , 555 S. W.2d at 111. -4- Judge....[T]he burden is on the mova nt to s how th

e abu se of

discr etion .” (c itati ons om

itted )). We should not reverse for ‘abuse of discre tion’ a discretionary

judgmen t of a Tri al Court unle ss it affirma tively appears that the Trial Court’s decision was against logic or rea soning, and caused an injustice or injury

to the par ty complaining. Marcus v . Marcus, 993 S.W.2d 596, 601 (Tenn. 1999).
In Campbell v. Archer , our Supreme Court dealt with a motion for a new trial under Rule 59 of the Tennessee Rules of Civil Procedure and held petitioners were entitled to a new trial because they were no t, person ally , at faul t for thei r failur e to appe ar at tri al. Campbell v. Archer , 555 S.W.2d 110, 112 (Tenn. 1977). The Campbell case inv olved a situation wh erein the “def endants, Mr. and Mrs. Campbell, had no actual notice or knowledge that the case was to be tried on March 11, 1975, until mid-morning on that date when the trial had already begun.” Id. At 111.
The Campbells had originally hir ed Attorney Ta

ylor to represent them. Id . Attorney Taylor filed answers 1 on their b ehalf a nd the ca se was s et f

or trial. Id . The trial was continued several times before being set for Marc h 11, 1975. Id . Attorney Tay lor did not deny that a notice of the Marc h 11 th setting was received by his office, but he did deny being aware of the trial

dat e until after the trial had started on March 11 th

. Id

.

Four day s prior to t

h e March 11 th trial date, the Campbells and Attorney Taylor decided that Attorney Tay

lor would no longer repre sent the defendants and would formally withdraw as counsel. I

d . The Camp bells employed new c ounsel, Attorney Jones, to represe nt them and Attorney Jon es obtain ed th e files from Attorney Taylor. Id . Attorney Jones, however, w as not advised of the March 11 th trial date. Id

.

The Campbells and Attorney Jones failed to appear at the appointed hour on March 11 th

. Id . The trial court judge requested that Attorney Tay

lor be contacted by

telephone and Attorney Taylor advised the court that he had withdrawn as counsel a nd would not appear. Id . The t rial j udge decided to proceed with the trial. Id . At some point during the trial, the court clerk brought a dr aft order allowing Attorney

Taylor to withdraw t

o the atte nti on of t he tri al jud ge, but the tr ial j udge refused to sign the order. Id

. In the meantime, Attorney Taylor telephone d Attorney Jones and told him the trial had started. Id

.

Attorney Jones contacted th e Campbells and proce eded to the courtroom accompa nie d by Mr. Campbell. Id . at 111-112. Trial had started and witnesses were being examined. Id . at 112. Attorney Jones requested permission to approach the bench and was denied. Id . Although Attorney Jones and Mr. Campbell explained t he s ituation to the trial judge after the jury retired, the jury returned verdict s in favor of the plaintiffs and judgments were e ntered upon the verdicts. Id . The Campbells then filed motions for a new trial claiming

“that the ir failur e to appe ar was, at most, excusable neglect.” Id

. The tria

l judge d enied the motions for

new tria l and the Co

urt of App eals-5-

affirmed. Id . Our

Supreme Court granted certiorari and de termined the Campbe

lls were entitled t o relief under Rule 59 of the Tennessee Rules of Civil Procedure

. Id

.

The Campbell

Courtstated: “ It ha s been recognize d that a pa rty may be re lieved from a judgment or order because of the mistake , inadvertence, surprise or excu sable neglec t of his att orney.” Id . The Court held the Campbells were not personally at fault. Id . Rather, the Court found the fault re sted with

“[A]ttorneyTaylor or his off ice staff in not taking note of the notice of the trial dat

e which w as forwa

rded to hi m by the c lerk.” Id . at 113. T he Court f

ound “[t]he

facts [made] out a

case of mistake, inadvertence, or excusable neglec t, rather than one of willful failure to appear.” Id

.

The case at

hand is ea sily

distingu ishable f rom Campbell . Defen dant can not claim he lacked actual notice or knowledge the Trial Cou rt had o rdered him to pay costs by Aug

ust 31, 2001, as a cond

ition to granti ng him

a continuance. The Trial Court specifically noted in its Order en tered May, 20, 2002, deny ing the Rule 59 motion, that Defendant was present when the Court made the ruling

conditio ning the continuance upon the pay ment of costs on or before August, 31, 2001.
Defendant claims in his motion to al ter or a mend, or f

or a new trial, tha t he faile d to pay the costs by A

ugust 31 st because the Trial Court never sent him a bill, and he was out of town and in “other venues immediately after the said Court date.” Although Defendant appears to ar gue he should be granted a new trial beca use his failure to pay

the costs constitutes mistake or neg lect, this excuse

does not r

ise to the level of mistake, inadvertence, surprise or excusable ne glect under Rule 60. Rather, t

his Court f

inds Defe ndant’s e xcuse to constitute willful failure to comply with the Trial Court’s order to pay the costs as order

ed. Def endant ma

y no t willfully

fail to comply with a court order and then expect to be grante d his “day in court.”

Our Supreme Court has stated:
It has been dec lared that the mere neglige nce or inattention of a party is no ground for vacatin g a judg

ment ag ainst

him. Carelessness is not synony mous with excusa

ble neglect. Mere forgetfu lnes s of a party to a n action is not a sufficient ground for vacating or setting aside a judgment by default. Parties are not justifiedin neglecting their cases me rely because of the stress or importance of their own

private business and such neglect is ordinarily not excusable.
Food Lion, Inc. v. W

ashington C

ounty Be er Board

, 700 S.W.2d 893, 896 (Tenn. 1985) (quoting 46 Am. Jur. 2d 874-75 Judgmen ts § 718 (1969)) (dealing with a motion under Tenn. R. Civ. P. 60.02 for relief from a final judgment due to “mistake , inadvertence, surprise or excusable neg lect”).

Whether Defend ant’ s motion is treated as a Rule 59 or as a Rule 60 motion, our opinion and the result are the same. We do not find that the Trial Court’s decision wa s again st logic or reasoni ng or tha

t it caused an inj usti ce or in

jury to t he part y complai ning. The record on appeal-6-

shows Defendant was fully aware he was responsible for pay ing costs, as ordered by

the Trial Cour

t, by August 31, 2001. Defendant neglected to pay those costs in a timely manner a s ordered and has produced no excus e for

his fa ilure that r ises a bove the le vel o f mer

e neglige nce o r ina ttent ion. W e affirm the Trial Court’s denial of Defendant’s motion to alter or amend, or in the alternative, f or a new trial.
Conclusion

The judgment of the Trial Cour t is affirmed, and this cause is remanded to the Trial Courtfor su ch furt her pro ceedin gs as may be r equired, if any, consistent with this Opinion and for collection of the costs below. The costs on appeal are assessed against the Appellant, Jim Stafford, and his surety.

___________________________________ D. MICHAEL

SWINEY, JUDGE