# FILED
June 22, 1998 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT KNOXVILLE

TENNESSEE FARMERS MUTUAL, ) FOR PUBLICA TION INSURANCE COMPANY ) ) Filed: June 22, 1998 Plaintiff/Appellee, ) ) Knox Chancery v. ) ) Hon. Frederick D. Mc Donald, JOSEPH A. FARM ER and wife ) Chancellor DEBRA J. FARMER, ) ) Defendants/Appellants. ) Appeal No. ) 03S01-9707-CH-00081

For Defendants/Appellants : For Plaintiff/A ppellee Norbert J. Slovis Robert W. Knolton Douglas C. Weinstein KRAMER, RAYSON, LEAKE, LOCKETT, SLOVIS & WEAVER RODGERS & MORGAN Knoxville, Tennessee Oak Ridge, Tennessee



## O P I N I O N

COURT OF APPEALS REVERSED; CASE REMANDED TO COURT OF APPEALS. DROWOTA, J.-2- We granted this appeal to determine whether or not the Court of Appeals erred in finding that the “Motion to Reconsider” filed by the defendant, Debra Farmer, was not suffic ient to allo w the trial court to retain jurisdiction. We conclude that the “Motion to Reconsider” was in substance a Rule 5 9.0 4, Tenn. R. Civ. P., motion to alter or amend the judgment whic h allowed the trial c

ourt to retain jurisdic

tion of the
cause and which tolled commencement of the time for filing a notice of appeal until entryof an order granting or denying the motion. Accordingly, we re verse th e judgmentof the Court of Appeals which h eld that the “Motion to Reco nsider” is not authorized by the Rules of Civi l Procedure and will not serve toextend the appellate process and remand to the Court of Appeals for fur ther proceedings consistent with this decision.

FACTUAL BA CKGROUND The defendants, Debra and Joseph Farmer, were injured in a car accident on March 28, 1989. The plaintif f, Tenn essee Far mers Mutu al Insura nce Comp any, their automobile insurance carrier, pai d the medical expe nses incu rred by the Farmers. Thereafter, the defendants filed suit and obtained a recovery a gainst the third party tortfeasor

involved in the accident. When Tennessee Farmers asser ted it s subrogation rights, Jos e ph Farmer reimbursed it for the medical payments it had made on his behalf, but Debra Farmer refuse d to reimburse Tennessee Farmers, asserting th at she had not been made whole by the recovery from the thi rd party tortfeasor.

Tennessee Farmers filed a de clarato ry judgment action seeking a determination of its subrogation rights against Debr a Farmer. On June 23, 1995, the-3-

trial court hel d that Tennessee Farmers was entitled to reimbursement for medic al expenses it had paid on behalf of Debra Farmer

. Less than thirty days later, on July 20, 1995, Debra Farmer filed a “M otion to Reconsider,” in which she requested that the trial co urt alter or amend its judg ment to find in her favor. After a h earing, the Chancellor

granted the motion, finding that Debra Farmer had not been made whole bythe recovery against the third party tortfeasor and ruling that Tennessee Farmers had no right of subrogation against that recover

y. The Chancellor entered the orde r reflecting the altered judg ment on August 7, 1996.

O n August 29, 1996, within thirty days of the trial court’s entry of the order, Tennessee Farmers filed a notice of appeal to the Court of Appeals. The par ties filed theirbriefs, and upon mutual cons ent, waive d oral argument and submitted th e matter to the Court of Appeals for decision on the briefs alone.

The Court of Appeals issued an opin ion in which it vacated the trial court’s judgmentof August 7, 1996 and reinstated th e trial court’s initial judgment of June 23, 1995 in favor of Tennessee Farmers. In so holding, the Court of Appeals found that t he trial court’s initial declaratory judgment became final thirty days after its entry because the “Motion to Reconsider” is not designated by the applicable rules of civil and appellate procedure as one which tolls commencement of the thirty day period within which a noti ce of appeal must be filed.

The reafter

we granted permission to appeal, and for the reasons h erei n explained, now reverse the judgment of the Court of Appeals.-4- ANAL YSIS We begin our analysis of this issue with Rule 4(a), Te nn. R. App. P., which requires, in an appeal as of right, that a notice of appeal be “filed with and recei ved bythe clerk of the trial cour t within 30

days a fter the date of entry of the judgment appealed from; . . . .” However,subsection (b) of Rule 4 spec ifies that, if timely filed, certain post-trial motions will toll commencement of the thirty day period until the date
on which an order is ent ered grantingor denying the motion. S ubsection (b) of Rule 4 provides as follows: In a civil action, if a timely motion under the Tennessee Rules of Civil Procedur e is fil ed in the trial court by any party: (1) under

Rule 50.02 forjudgment in accordance with a motio n fo r a directed verdict ; (2) under Rule 52.02 to amend or make additional findings of fact, w hether or not an alteration of the judg ment would berequired if the motion is granted; (3) under Rule 59.02 for a new trial; (4) under Rule 59.04 to alter or amend the judgment; the time for appeal for all parties shall run from the entry of the order deny ing a new trial or

grant ing or d enying any such motion. (Emphasis added). This principle i s reiterated in Rule 59.01, Tenn. R. Civ. P., which provides: Motions to which this rule i s applicable are (1) under Rule 5 0.0 2 for judgmentin accordance with a moti on for a directed verdict; (2) under Rule 50.02 to amend or make additional findings of fact, whether or not an alteration of the judgment w ould be requiredif the motion is granted; (3) under Rule 59.02 for a new trial; or (4) under Rule 59.04 to alter or amend the judgment. These motions a re the o nly motions contemplated in these rules for extending the time for taking steps in the regular appellate proc ess. Mot ions to reconsider any of these motions are not authorized an d will not operate to ex tend the time for appellate proceedings. (Emphasis added.) Rule 59.04, Tenn. R. Civ . P., provides that “[a] motion to alter or amend a judgment shall be filed and s erved withi n ( 30) days after the entry of judgment.”-5- In this Court, Debra Farmer asserts th at the decision of the Court of Appeals was an overly t

echnical application of

these rules which cons idered the form rather than the substance of the motion . She argu es that desp ite its title, the “Mo tion to Reconsider” was in substance a Rul e 59.04 motion to alter or amend the trial court’s judgment. She asserts that its filing within thirty days of entryof the trial court’s initial judgmenttolled comme ncement of the t ime forfiling a notice of appeal until the date
on which an order was entered granting or deny ing the motion

. In contrast, Tennessee Farmers argues that the Court of Appeals’ judgment should be affirmed because a “Motion to Reconsider” is not liste d in the ap plicable rules of civi l and appellate procedure as on e whic h tolls commencement of the thirty day period for filing a notice of appeal.

If we were to cons ider only the form of the motion filed by Debra Farmer, Tennessee Farmers wo uld preva il in this appeal because th e title “motion to reconsider” is not included among those which tol l commencement of the time for filing a notice of appeal. However, courts must consider

the substance of a motion in determining whether i t is in fact one o f the specified post-trial motions which toll commencement of the time.

This rule was applied in Bemis Co. Inc. v. Hines, 585 S.W.2d 574, 575 (Tenn. 1979), in which the plaintiff had fil ed a written “Motion to Set Aside Decree and Restore the Cause to the Docket.” Although commenting that “neither the title nor the format of the motion bears a striking re semblanc e to the usual motion for new trial,”this Court found it to be “clearl

y ascertai nable from a

reading of the motion that, in substance, . . .“ it was a motion for a new trial.-6- This rule was also applied by the Court of Appeals in Hawkins v. Haw kins , 883 S.W.2d 622 (Tenn. App. 1994), a case factually similar

to this one. There the

plainti ff filed a written post-tri al motion which she desig nated as a “Motion to Recon sider. ” The Court o f Appeals noted, “[t]hough she called it a motion to reconsider, ‘it is clearlyascertainable from a reading of the motion that , in substance,’ it amounts to a motion to alter.” Id . at 624, quoting Bemis Co. Inc. , 585 S.W.2d at 575.
Requiringcourts to consider the subs tance of a post-trial motion, r ather than its form, is consistent

with the ru les of civi l procedu re. Rule 8. 05, Ten n. R. Civ. P.,
ex plicitly states that “[n] o technical fo rms of pleadin g or motions are require d. ” (Emphasis added.) Moreover, allowing the form of a motion to control its substance could result in the dismissal of many appeals and would, in turn, defeat the mandate of Rule 1, Tenn. R. App. P., which instructs that the rules of appellate procedure are to be “construed to secure the just, speedy, andinexpensive determination of every proceeding on its merits.” Accor dingly, we hold that w hen de termining whether a post-trial motion is one of those designated by the rules of civil and appellate procedure as tolling c

ommencement of the time for filing a notice of appeal , courts must consider the substance of the motio n, rather than its form. To avoid confusion, however, attorneys filing post-trial motions should utilize the titles referenced in Rule 4, Tenn. R. App. P. and Rule 59.01, Tenn. R. Civ. P.
Applying this rule, we c oncl ude that the “Motion to Reconsider” filed in this
case by Debra Far mer is in substance a Rule 59.04 motion to alter or amend the1 W e emphasize that the “Motion t o Reconsider” at

issue in this appea l was not a mo tion to reconsider

a previou sly decided motion under R ule 59.01 , Tenn . R. Civ. P. Inde ed, th at rule spec ifically provides that motions to reconsi der previo usly deci ded post-trial mo tions are “n ot au thoriz ed an d will n ot operate to extend the time for appe llate proce edings.” R ule 59.01 , Tenn . R. Civ. P.; see al s o Daug herty v. Lumbermen’s Underwrit ing All iance , 798 S.W.2d 754, 755 (Tenn. 1 990) (holdi ng that t he fili ng of a m otion to reconsider t he denial o f a motion for new trial does not tol l commencement of the time for filing a notice of appeal). -7- initial judgment of the trial court. 1 Since the motion was timely f iled within thirty days of the initial judgment of the tri al court, the Chancellor retained jurisdiction to act on the motion and the thirty day time period for fili ng a notice of appeal did not
commence until the trial court entered the August 7, 1996 order granting the motion. The Court of Appeals’ decision r eversing and vacating the Chancel lor’s final order of August 7, 1996 and reinstatin g the June 2 3, 1995 order in plaintiff’s fav or was erroneous.

CONCLUSION Fo r the reasons previously stated, we reverse the judgment of theCourt o f Appeals which reinstated the initial judgment of the trial court. We remand this case to the Court of Appeals for a determination of the pretermitted issues of the plaintiff’s appeal from the judgment of the trial court entered August 7, 1996.

_____________________________________ FRANK F. DROWOTA, III, JUSTICE
Concur: Anderson, C. J. Birch, Holder, Barker, JJ.