### 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 denyhis motion to set aside a default judgment whichhad been entered against him, whichhe filed under Rule 60.02 o f th e Tennessee Rules of Civil Procedure. In his motion, Smith alleges that he was never served withvalid service of process and1 Default jud gme nt 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 JeanTurner, deceased. SarahJean 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 nor ab out November 12, 1975 the Petitioner, Alvin McNair, took up residence with the deceased, SarahJean 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 portionof t h e payments on the first mort gage on the real propertyowned by Sarah Jean Tu r ner at 3407 McPhersonStreet. . .during the last f ive t o s i xyears 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 McPhersonS treet . . .and the amount of his interest should be determined by this Court.3

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 copyof the motion was served upon Smithat 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 February3, 1989, whereupon the court ordered as follows:

. . .the Court was of the opinion that it was proper that a constructive trust be established ona 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, 1989,4

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] givenfalse information by the plaintiff and through counsel for the plaintiff, of my true whereabouts. 2. At the time of the service ofthe 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 anydefault judgement against me in a ti mely matter [sic] because I ha d no knowledge that one was against me, nor that anycivil mattersexisted. I didn't become aware of the situationtil [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 uponthe 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 suchMotions as i s [sic] being sought here be brought withina reasonable time and 10 years far exceeds the bounds of reasonableness. It is, therefore ORDERED that the Motions of the Defendantshall 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 nmotion and upon such terms as are just, the court mayrelieve 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 heretofore6 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 fromthe operation o f the judgment. The motionshall 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 default7

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 uponproper 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 deputysheriff responsible for serving the summons on Smith, knowing that the address was incorrect and that Smith resided elsewhere. It is interesting to note that the8

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 bythe sheriff whether the returnwas made in good faithor 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 partyagainst 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 ConstitutionArticle 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 bothnotice and an opportunityto 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 was9

purposefullydeprived 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.