FILED

April 15, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS

AT KNOXVILLE

ALVIN McNAIR, ) KNOX CHANCERY

 ) C.A. NO. 03A01-9804-CH-00122

 )

 Defendant-Appellant, )

 )

vs. )

 ) HON. FREDERICK D. McDONALD

 ) CHANCELLOR

 )

CARLTON E. SMITH, )

 )

 Plaintiff-Appellee. ) VACATED AND REMANDED

) 

) 

 

CARLTON E. SMITH, Whiteville, Pro Se Appellant.

GARY M. KIRK, Knoxville, for Appellee.

O P I N I O N

McMurray, J.

I n this action, defendant Carlton Smit h ap peals the trial

court's decision to deny his motion to set aside a default judgment

which had been entered against him, which he filed under Rule 60.02

o f th e Tennessee Rules of Civil Procedure. In his motion, Smith

alleges that he was never served with valid service of process and
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Default judgment was entered against Tina Smith and she is not involved

in this appeal.

2

thus was not given notice of the action against him which had been

filed by the plaintiff, Alvin McNair. We vacate the trial court's

judgment and remand the case for a trial on the merits. 

This action began on September 19, 1988, when McNair filed a

petition for declaratory judgment, which alleged as follows:

The Defendants, Carlaton [sic] Smith and

Tina Smith 1, are the sole heirs at law of Sarah

Jean Turner, deceased. Sarah Jean Turner died

intestate in Knox County, Tennessee on July

29, 1988.

In 1972 the deceased, Sarah Jean Turner,

purchased a hou s e and lot at 3407 McPherson

Street, Knoxville, Tennessee. 

O n or ab out November 12, 1975 the Petitioner, Alvin McNair, took up residence with

the deceased, Sarah Jean Turner, and these two

parties lived together until the death of

Sarah Jean Turner on July 29, 1988.

During the period of time from November

12, 1975 a nd u p through the present time the

Petitioner has made a large portion of t h e

payments on the first mort gage on the real

property owned by Sarah Jean Tu r ner at 3407

McPherson Street. . .during the last f ive t o

s i x years your Petitioner made all of th e

payments on the aforesaid mortgage.

* * *

Plaintiff would aver that a constructive

trust should be established to protect his

interest in the real property at 3407

McPherson S treet . . .and the amount of his

interest should be determined by this Court.
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N o certif icat e of service was attached to McNair's Petition

for Declaratory Judgment. 

The next pleading in the record is McNair's motion for default

judgment, which alleges that Smith "w[as] duly served with a copy

o f the summons and complaint in this action on September 22, 1988."

The certificate of service attached to this motion states that a

copy of the motion was served upon Smith at 3407 McPherson Street,

Knoxville, Tennessee. The trial co urt granted McNair a default

judgment against Smith on January 20, 1989.

The petition for declaratory judgment was heard on February 3,

1989, whereupon the court ordered as follows:

. . .the Court was of the opinion that it was

proper that a constructive trust be established on a certain parcel of property at 3407

McPherson Street, Knoxville, Knox County,

Tennessee to protect the interest of Alvin

M cNair as it may appear in said property[,]

said inte rest being in the amount of Fifteen

Thousand Dollars ($15,000.00) plus payments

made after the entry of this judgment.

On August 10, 1989, McNair filed a "motion for judicial sale

t o satisfy judgment" in which he alleged that he "continues to make

payments on the property and n o efforts have been made by the

defendants herein to sell the property and to satisfy the lien

thereon in favor of your plaintiff herein." On November 28, 1989,
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after a hearing, the trial court ordered that the property at 3407

McPherson Street be sold.

The property was sold at public sale on January 4, 1990.

McNair made the highest bid at the sale, a bid of nine hundred

dollars ($900.00), and the property was sold to him at that price.

A n order confirming the sale was entered by the Knox County

Chancery Court on January 10, 1990.

The next pleading in the record is Smith's Rule 60.02 motion

t o set aside the default judgment, filed January 26, 1998, which

states in relevant part as follows:

1 . I Carlton E. Smi th was and have been kept

ignorant to any suit being ta k en against me

due to the fals e and fraudulent summons that

was suppose[d] to have been served upon me on

Sept. 22nd of 1988. The courts was [sic]

given false information by the plaintiff and

through counsel for the plaintiff, of my true

whereabouts. 2. At the time of the service of

the summons, I Carlton E. Smith was incarcerated at Morgan County Corrections, and could

not have been served with a summons at th e

address that's on the summons. To [ have]

served a summons on me, the Deputy Sheriff

would have had to come to Wartburg, Tn. 3. I

Carlton E. Smith could not have responded to

any default judgement against me in a ti mely

matter [sic] because I ha d no knowledge that

one was against me, nor that any civil matters

existed. I didn't become aware of the situation til [sic] my release fr o m prison years

later. 4. The invalid summons is what led to

the default judgement being taken against me.
5

O n March 11, 1998, the trial court made the following written

order:

This cause came before this court on March 6,

1998 upon the Motion to Set Aside a Default

Judgment and a Motion for a Continuance filed

heretofore by the Defendant, the appearance by

the Plaintiff, argument by counsel for the

Plaintiff, and upon the record as a whole from

all of which the court finds th at t he Motion

for a Continuance should not be granted due to

a failure of grounds upon which the Motion to

Set Aside a Default Judgment should be

granted. T he la tter results from the fact

that the court could find no fault with the

original service of process upon the defendant

and because TRCP requires that such Motions as

i s [sic] being sought here be brought within a

reasonable time and 10 years far exceeds the

bounds of reasonableness. It is, therefore

ORDERED that the Motions of the Defendant

shall be and hereby are dismissed with prejudice against refiling same.

It thus appears from this order that the Chancery Court dismissed

Smith's motion after what amounted to an ex parte hearing, without

providing Smith, a pro se litigant, a chance to be heard or present

evidence supporting his position.

Tennessee Rule of Civil Procedure 60.02 provides the following

in relevant part:

O n 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; (2) fraud (whether heretofore
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denominated intrinsic or extrinsic),

misreprentation, or other misconduct of an

adverse party; (3) the judgment is void; . . .

. .or (5) any other rea son satisfying relief

from the operation o f the judgment. The

motion shall be made within a reasonable time,

and for reasons (1) and (2) not more than one

year after the judgment, order or proceeding

was entered or taken.

Gene rally, when presented with a party's motion to reope n a

final judgment under Rule 60.02, the courts have applied the rule

that "[t]he principle of finality is firmly embedded in the

procedural rules and, therefore, Rule 60.02 is an "escape valve"

that sh ould not be easily opened." NCNB National Bank of N ort h

Carolina v. Thrailkill , 856 S.W.2d 150, 153 (Tenn.App. 1993). Our

courts have also noted that "Tennessee Rule of Civil Procedure

60.02(5) is intended to provide relief only in the most unique,

exceptional, or extraordinary situations." Id. at 154. 

The courts have applied these general rules much less

strictly, however, when the judgment sought to be reopened is a

default judgment, and when the defaulting party can demonstrate

that his or her failure to appear was reasonab ly ex cusable. The

Supreme Court noted this distinction in the case of Tennessee Dept.

o f Human Services v. Barbee , 689 S.W.2d 863, 867 (Tenn. 1985),

stating that "courts often apply a different stand ard when faced

with a Rule 60 motion in regard to a default judgment. . .Rule 60

i s const rue d with liberality to afford relief from a default
7

judgment." Id. In K eck v. Nationwide Systems, Inc. , 499 S.W.2d

266, 267 (Tenn.App. 1973), this court noted:

One can find numerous decisions where the

cou rts make it clear they are anxious to see

cases determined on the merits whenever such

is possible. It seems to be a universal rule

that when there is a reasonable doubt as to

whether a default judgment should be set aside

upon proper application, the court should

exercise its discretion in favor of granting

the application so as to permi t a determination of the cause upon the merits. 

Id. ; accord Tennessee State Bank v. Lay , 609 S.W.2d 525, 527

(Tenn.App. 1980), Nelson v. Simpson , 826 S.W.2d 483, 485-87

(Tenn.App. 1991). The primary reason for this principle is that

"the law delights in giving to every [person] a day in court to

make his defense." Keck , 499 S.W.2d at 268, citing Roberts v.

Stewart , 9 Tenn. 390, 392 (1830).

In the present case, the summons allegedly served upon Smith

i s not contained in the record before us. As noted above, the

motions in the record filed subsequent to the initial petition

include certificates of service certifying that copies of the

motions were served on Carlton Smith at 3407 McPherson Street. In

his motion to set aside the judgment, Smith alleges that McNair

provided this address to the deputy sheriff responsible for serving

the summons on Smith, knowing that the address was incorrect and

that Smith resided elsewhere. It is interesting to note that the
8

address in the subsequent certificates of service, 3407 McPherson,

was the same address at which McNair was residing. 

The Western Section of this court, when faced with c irc umstances remarkably similar to those of this case, stated:

It is our view that a judgment, obtained upon

a false return made by the sheriff whether the

return was made in good faith or not, operates

a s a fraud upon the Court when the Court

enters a judgment based on the return with no

know ledge of such lawsuit on the part of the

party against whom the judgment is rendered.

No [court] would knowingly enter such a judgment as it deprives a party of the fundamental

constitutional right of due process. Tennessee

Constitution Article 1, § 8; United States

Constitution, Amendment V.

Therefore, this case was not sub ject to dism i ssal for failure to comply with Rule 60 a s

found by the Chancellor.

Hawley v. Lavelle , 602 S.W.2d 499, 502 (Tenn.App. 1980).

I t is axiomatic that "[a] fundamental requirement of due

process is notice and an opportunity to be heard." Phillips v.

State Bd. of Regents , 863 S.W.2d 45, 50 (Tenn. 1993); see also I n

r e Riggs , 612 S.W.2d 461, 465 (Tenn.App. 1980) ("In litigation

between private parties over private rights, it is well-settled

that due process of laws requires that both notice and an opportunity to be heard be given to necessary parties as to the essentials

o f a judicial proceeding."); Redd v. Tennessee Dept. of Safety , 895

S.W.2d 332, 335 (Tenn. 1995). In this case, Smith alleges he was
9

purposefully deprived of notice of the proceeding against him. He

was certainly deprived of an opportunity to be heard, and to

present supporting evidence, when the Chancery Court dismissed his

m otion without his presence in the courtroom. Under thes e

circumstances, we are of the opinion that the merits of the c ase

should be reopened, and should receive a full and fair examination.

Smith's constitutional right to due process requires as much.

The judgment of the trial court is vacated in its entirety and

the case is remanded for a full consideration of the merits. Costs

on appeal are assessed to the appellee.

PER CURIUM ORDER

The foregoing opinion, prepared by Judge Don T. McMurray,

late member of the Court and now deceased, is now approved and

adopted as the opinion of the Court.

__________________________

Houston M. Goddard, P.J.

__________________________

Charles D. Susano, Jr., J.