# FILED
December 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, WE STERN SECTION AT JACKSON

_______________________________________________________ ) BOATMEN’S BANK OF TENNESSEE , ) Shelby County Chancery Court ) No. 103622-2 Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9607-CH-00166 ) STEVEN K. DUNLAP

and ) ABSOLUTELY HILARIOUS ) PRODUCTS, INC. , ) ) Defendants/App

ellants. ) )

______________________________________________________________________________ From the Chancer

y Court of She

lby County

at Memphis. Honorable Floyd Peete, Jr., Chancellor
Harold F. Smith, Jr. , Memphis, Tennessee Attorney fo

r Defendants/Ap

pellants.
Richard M. Carter , Michael A. Brady , MARTIN, TATE, MORROW & MARSTON, Memphis, Tennessee Attorneys for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) INMAN, Sp. J. : (Concurs)This appeal has been taken from the trial court’s order granting summary judgment in favor of Boatmen’s Bank of Tennessee against Steven K. D unlap and the trial court’s order denying the motion to

set aside the default judgment entered against

Absolutely Hilario

us Products, Inc. For the reasons stated herein, we affirm.

FACTS
On December 7, 1993, Boatmen’s Bank of Tennessee (hereinafter, “Bank”) filed a complaint for money judgment

against St

even K. Dunlap (here

inafter, “Dunla

p”) and Absolutel

y Hilarious Products, Inc., (hereinafter, “AHP”) for debts allegedly due under vario us promissory notes and personal guarantees. Bank sued to co l lect from Dunlap two promissory notes he had made, one executed February 5, 1991, in t he origin al amount of $254,750.00 which had an outstanding balance of $4,552.75, and another executed January 3, 1991, in the original amount of $350,000.00 w hi ch had an outstand ing balance of $1 00,000.00. In addi tion the Bank sought t

o collect from AHP a promissory note executed Oct ober 30, 19 91, in the original amount of $1,000,000.00 which had an outstanding balance of $904,380.00.

Bank represents that

it hired a private

process server

to serve Dunlap and

AHP, but the process server was unsuccessful on a t least 20 separa

te occasions. Therefore, on January 5, 1994, Bank filed a Request for Service by Publication which the trial court gr anted by entry of order of publicatio n on January 7, 1994. On January 21, 1994, Bank filed the “First Amended Ver ifie d C omplaintfor Money Damages, Attachment, Restraining Order, Temporary Injunct ion an d Permanent

Injunction.” Service by publication uponDunlap andAHP was completed on February 1 , 1994. On February 15, 1994, service upon AHP was made by personal service upon AHP’ s corporate s ecretary, B erlyn Dunlap. Because no answer had been filed, on March 3, 1994, and March11, 1994, Bank filed a motion for default judgment against Dunlap and AHP. By order entered March 18, 1994, the trial court granted the default judgment against AHP in the amount of $948,180.98.

On April 7, 1994, Dunlap andAHP filed an answe r to the First Amende

d Complaint. On June 20, 1994, Dunlap and AHP served upon Bank a Rule 34 notice for production of doc

uments1 AHP’s second motion to set aside the de

fault judgment is n

ot in the record on

appeal; however, it was argued as Appellant’s fifth issue on appeal. and things, and on September 16, 1994, Dunlap and AHP served Bank with a motion to compel. On June 22, 1994, Bank filed a motion for summary jud gment agains t Dunlap, and following a September

20, 1994, hearing, the trial court granted summary judgment in favor of the Bank by order entered January 26, 1996.

On October

31, 1994, AHP filed a motion to set aside the default judgment pursuant to Rule 60.02 T.R.C.P. which motion was denied by order entered December 12, 1994. Dunlap filed
a motion on February 24, 19 95, seeking to ame

nd his April 7, 1994, answer to assert a compulsory counterclaim.

AHP filed a second motion to set aside the defaul

t judgment pursuant

to Rule 60.02 T.R.C.P. on March 17, 1995 1 . AHP sought to set aside the judgment so t hat it could fil e a counterclaim.

The trial court denied

both Dunlap’s motion to amend his answer and AHP’s second motion to set a side the default judgment by Order on Pending Motions entered January 26, 1996. The trial court’s order also denied Dunlap’s motion toreconsider and for sanctions. On February 22, 1996, Dunlap an

d AHP timely filed a n

otice of appeal.

On October 8, 1996, Dunlap and AHP filed a third Motion to Set Aside Judgment by Default and Summary Judgment or in the Alternative for Stay of Proceedings. Bank filed a response, and the trial court denied AHP’s motion by order entered October 29, 1996. A second order entered October

29, 1996, directed the release of certain funds in the amount of $28,506.49, which had been deposited by Dunlap with the trial court clerk in partial satisfaction of the judgment. Thereafter, Dunlap and AHP filed a second notice of appeal on November 6, 1996.

In addition to the aforementioned procedural histor y, Dunlap was also found to be in contempt o f court. During the proceedings, the trial court directed Dunlap to disclose various records, and the trial court also entered an order finding Dunlap to be in contempt of court for his failure to abide by discovery requests. On April 6, 1994, the trial court entered an injunction prohibiting Dunlap from transferr ing or disposing of hi

s assets. However, without obtaining leave of court, Dunlap v

iolated the injunc

tion as follows:1. During the Summer of 1994, he transferred $30,000 from his attorney’s escr

ow account; 2. On February 27, 1995, Dunlap transferred a ten acre parcel of land in Jonesboro,

Arkansas, to Wyon

a Carter; 3. During 1995 and early 1996, Dunlap transfe rred some $99,000 from his ac

count at the First Ba

nk of Arkansas; 4. On January 11, 1996, Dunla p liqu idated his holdings at Morgan-Keegan

and Co. in Memphis, Te

nnessee; 5. On January 26, 1996, Dunlap transferred another ten acre parcel of land in Jonesboro, Arkansas, to his brother, Rodney Dunlap.

On September 12, 1994, Bank moved for an order to find Dunlap in contempt of Courtfor his withdrawing from his attorney’s trust account and spending $30,000 in violation of the trial court’s previous order entered January 21, 1994. In addition to the foregoing violations of the injunction, the trial court also found Dunlap to b e in violat ion of the Tenness ee Rules of Civil Procedure and the trial court’s ord e rs regarding disc overy. Dunlap wa

s scheduled to give

his deposition on April 8, 1994, but the day before h

is attorney canc

eled the depositio

n because Dunlap allegedly had to be out of town

on business. In fact, Dunlap was in Memphis on the day in question butsimply chose not to

give his deposition. The deposition was rescheduled for April 26, 1994, and Dunlap appeared but re

fused to answer q

uestions until he ha

d reviewed the de

posi tio n testimony offered by his mother.

On November 7, 1995, Bank field a verified petition to hold Dunlap in contempt of court. At a hearing held on December 7, 1995, the trial court ordered Dunlap to advise the Court of the status of the title of

a new Jeep he had purchased with proceeds from the sale of th

e land and to produce the American Express records of payments and charges made since April 6, 1994. Dunlap didn ot comply. On February 19, 1996, Bank filed a petition to hold Dunlap in both civil and criminal contempt, and on February 27, 1996, Bank filed a request for pr oduction of docume

nts in aid of execution. Dunlap made no reply. A hearing on the Bank’s motion to compel discovery was held on June 28, 1996, and by order entered July 9, 1996 , the trial c ourt compelled discovery pursuant to the Bank’s requests. S ubsequen tly on July 16, 1997, an order was entered directing Dunlap, in lieu of a contempt hearing, to produce by July 1 7, 1996, his M organ-Keegan account statements , a copy of the 1995 Jeep title and his American Express records. That same orderinstructed Dunlap to appear for his deposition on the following day, July 18, 1996. Dunlap neither

prod ucedthe requested inf ormation nor appe

ared for his depo

sition. Dunlap made

a partia l production of documents on July 29, 1996, but fromthe documents submitted, it was apparent that Dunlap had violated the trial court’s April 9, 1994, order prohibitin g disposition of his a ssets. Thereafter on

August 9, 1996, Bank

filed a second mot

ion for contempt.

The petitions for contempt came to be heard on October 9, 1996, and on October 11, 1996, the trial court entered an order finding Dunlap in

civil contempt for violating the April 6, 1994, injunction, the July 9, 1996, ord er compelling disc

overy, and the Jul

y 16, 1996, order to producethe AmericanExpress records. That same order also directed Dunlap to produce numerous records no later than November 11, 1 996. Evide ntly, Dunlap never complied with the trial court’s order by producing the documents.

As previously

noted the trial court entered its final order in this cause on October 29, 1996, Dunlap and AHP timely f iled a notice of a

ppeal on Novembe

r 6, 1996, and this c

ause is properly before this Court for consideration.

ISSUES
On appeal, Dunla

p and AHP have ra

ised the following i

ssues:

I. Whether

the tr i al court erred in granting Bank’s motion for summary judgme nt i n holding that Dunla p could not contra

dict his deposition testimony

by his affidavit; II. Whether

th e trial court erred in granting Bank’s motion for summary judgment while there was outstanding discovery; III. Whether

the t rial court erred in granting Bank’s motion for summary judgment while there were motions pending; IV. Whetherthe trial court er red in denying Dun

lap’s motion to amend answer to f

ile compulsory cou

nterclaims; V. Whether

the trial court erred in denying AHP’s motion to set aside the default judgment in order to allow it to file compulsor y counterclaims; VI. Whether

the trial court erred in denying AHP’s motion to set aside the default judgment when Bank’s motion for default judgmenthad been filed prior to an answer being due; VII. Whether

the trial court er

red in denying Dun

lap’s moti on t o reconsider and

for sanctions; VIII. Whether

the trial court erred in finding Dunlap in contempt of court; and IX. Whether

the trial court erred in ordering the Chancery Court Clerk’s Office t

o release to Bank

funds on deposit.

Rule 56.04 T.R.C.P. provides that summary judgment “shall be render

ed forthwith if the pleadings, depositions, answers to interrog atories, a nd admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

When the facts materi

al to the appli

catio n of a rule of law are undisputed, the application is a matter of law f or the court since

there is nothing to

submit to the jury to r

esolve in favor of one party or the other. In o therwords, when there is no dispute over the evidence estab lishing the facts that co ntrol the applica

tion of a rule of la

w, summary judgmen

t i s a n appropriate means of deciding that issue. Byrd v. Hall, 847 S.W.2d 208, 214-15 (Tenn.1993).

It follows that

the issues raised by the motion for summary judgment of whether the plaintiff failed to present evidence s upporti ng the essential elements of the cause of action, are questions of law. Consequently, the s cope of review i

s de novo with no presumption o f correctness. Rule 13 (d) T.R.A.P.; Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn.1993). "No presumption of correctness attaches to decisions grant ing [or denying] su

mmary judgments be

cause they involve only questions of law. Thus, on appe al, we mus t make a fresh determination concerning whether or not the requirements of

Tenn. R. Civ. P. 56 hav e been met. " Cowden v. Sovran Bank/Central South , 816 S.W.2d 741, 744 (Tenn.1991).

I. Whether the trial court erred in granting Bank’s motion f or sum mary judgment in holding that Dunlap could not contradict his deposition testimony by his affidavit; II. Whetherthe trial court erred in granting Bank’s motion forsummary judgm ent while there was outstanding discovery; andIII. Whetherthe trial court erred in granting Bank’s motion for summary judgment while there were motions pending:

The Bank established that Dunlap executed the $350,000 n ote, and Dunlap even admits such in

his Answer to Amended Complaint. Dunlap was unable to produce any proof that he had paid

the note. As of March

11, 1994, Dunlap ow

ed $100,000 on the p

rincipal, $2,994.44 in accrued interest and additional interest accruing at $19.44 per day. We find no evide nce in t he record suggesting that summary judgment on this issue was inappropriate and accordingly af fir m the trial court’s decision in this regard.

In addition to execut

ing the notes, Dunla

p also executed tw

o personal guara

ntees to
secure the indebtedness of AHP. Dunlap admitted to executing the Octobe r 30, 1991, no te for $1,000,000 as President

of AHP. He also ad

mitted executing b

oth the July

17, 1991, and October 30, 1991, guarant

ees of AHP’s debt

.

The Bank established the validity of the obligations as well as Dunlap’s and AHP’s default on the notes and guarantees. The note executed on October 30, 1991, was d ue in full on October 30, 1992. The Bank h

eld the note

and had the right to sue to collect on it. See, e.g. , Martin
v. Martin , 755 S.W.2d 793 (Ten n. App. 1988); Long v. Range , 213 S.W.2d 52, 54-55 (Tenn. App. 1948). Because the Bank also held Dunlap’s personal guara ntees on AHP’s deb

t, it had a right to sue Dunlap as well.

A guar ant or in a commercia l transaction sha

ll be held to the full

extent of his obligation and the words of hi s guarantee are

to be taken as stro

ngly against the gua

rantor as sense will admit. Farmers-Peoples Bank v. Clemmer , 519 S.W.2d 801, 804 -805 (Tenn. 1975) ; First Am. Nat’l Bank of Nashville v. Hall , 579 S.W.2d 864, 868 (Tenn. App. 1978). The guarantees at issue here were continuing, absolu te and uncondition

al with respect to

AHP’s debt. The guarantees were
never terminated, and D

unlap is liable for

both principal and

interest due on AHP’s note. The amount of the outstanding note

was established by the unchallenged affidavit of Aubrey G. Oliver, Senior Vice President a

nd Manager of the

Cr edit De partment of Boatmen’s Bank, executed on March3, 1994. Therefore, the trial court properly

entered summary judgment in favor of the Bankand against Dunlap.
Dunlap raised as an issue on appeal the q uesti on of whether his third Affidavit of September

13, 1994, created a genuine issue of material fact regarding the July 17, 1991, guarantee
so as to preclude entry of

an order of summary judgment. In his amended answer to the complaint, Dunlap admitted that he entered into a guarantor relationship with the Bank. Furthermore, Dunlap admitted in his May 24, 1994, deposition th at he recognize

d the July 17, 1991, guarantee and

that it bore his signature. Specifically, he stated:

Q. I’m

going to pass to you now what has been marked as Exhibit 15 to your deposition [the original July 17, 1991, Guarantee], and I’m going to

ask you if you recognize this document and if that is your signature a

t the bottom? A. Yes, I do recognize the document and it is my signature.

Dunla p asserts that he has created a genuine issue of material fact by statement s containedin his third Affidavit executed September 13, 1994. Examination of the affidavit in question reveals that the testimony Dunlap contradicts is not that of May 24, 1994, but rather that of April 26, 1996. T

he affidavit re

ads in relevant pa

rt:

6. Prior

to now, I have not had the discove ry necessary to attempt to prove the purpo

rted July 17, 1991, g

uarantee is a fraudulent

document. In Volume 1 of my deposition when I first saw the purported guarantee, I stated that I did not re cognize it and, although it looked like my signature, it appeared to be pho to copied onto the guarantee. 7. To date, I still have not seen an original of the purported

July 17, 1991 guarantee.

It i s clear that the c

ited sections of the

third Affidavit re

fer to Dunlap’s f

irst depositio

n taken o n April 26, 1994, and not to the May 24 deposition. When Dunlap was confronted with the original July 17, 1991, guarantee, Dunlap stated without equivocation that the guarantee bore his signature. The May 24 deposition refer red to “Exhibit 15" w

hich was the origin

al July17, 1991 guarantee. The
mere existence of Exh

ibit 15 contradicts

Dunlap’s stateme

nt to the contrary, and this point is supported by the affidavit of Sheryl Weatherford, the court reporter at the May24 deposition, whostated that Exhibit 15 was the original July 17, 1991, guarantee.

In light of the foregoing, we do not find that Dunlap’s affida v it testimony which addressed a different dep

osition and which sta

tes facts t hat a re fundamentally wrong can create a genuine issue of material fact. The test for a "genuine issue" is whether a reasonable j ury could legitimately

resolve that fact in favor of one side or the other. If the answer is yes, summary judgmentis not appropriate; if the answer is no, summary judgme

nt is proper because

a trial would be pointless as there would be nothing for the jury to do and the judge need only apply the law to resolve the case. In maki ng this determinati

on, the court is to

view the evidence in a

light favorable to the nonmoving party and to allow all reasonable inferences in his favor. “Genuine issue" as used in Rule 56.03 refer

s to disputed, materia

l facts. It canno

t be said that pate

ntly false statements

create genuine issues of material fact so as to preclude summary judgment. See, e.g., Byrd v . Hall , 84 7 S.W.2d 208, 215 (Tenn. 1993).

While it is true that Dunlap may explain or con tradi ct prior testimony with an affidavit,the effect is merely that the conflicting statements cancel out each other. Tibbals Flooring Co. v. Stanfill , 410 S.W.2d 892, 896 (Tenn. 1967). Two sworn inconsistent statements by a party
are of no probative value in establishing a disputed issue of material fact. P rice v. Becker , 812 S.W.2d 597, 598 (Tenn. Ap p. 1991). We would

then be forced to

disregard the st

at ements as a matter of law. Ayers v. Rutherford Hosp., Inc. , 689 S.W.2d 155, 162 (Tenn. App. 1984) . Even if the affidavit were to cancel out the prior admission, the undisputed admission contained in Dunlap’s answer remains. Boatmen’s amended complaint stated:

7. Dunlap unconditionally gua ranteed all inde

btedness, obligations and liabili

t ies of Products [AHP] to Boatmen’s in a guaranteeattached

here to as EXHIBIT D [July 17, 1991 Guarantee]
In response, Dunlap stated in his answer:

7. Dunlap would admit that he entered in a Guarantor agreement with Boatmen’s Bank.

Moreove r, summary judgment was proper because Dunlap identified and acknowledged hi ssignatu

re on the O ctober 30, 1991, g uarantee, AHP’ s $1,000,000 note a nd AHP’s line of cr

edit which he signed as Guarantor. Dunlap’s argument is without merit in light of the October 30, 1991, guarantee.
Dunlap also asserts on appea l that summary judgme

nt was inappropri

ate because the trial court granted the motion while Dunlap’s “Notice of Request for Production of Documents and Things” was outstanding. However, it appears to the Court that the Bank filed a response to the discovery request

on July 19, 1994, and made the documents available for inspection and copying. Dunlap also asserts

that the trial court erred in granting summary judgment because Dunlap’s motion to compel had not been heard. However, there is no indication that Dunlap ever set the motion for hearing and it appears tha t Dunlap made no at

te mpt at discovery between September, 1994, and January, 1996, when the trial court entered the order granting summary judgment.

Dunlap’s assertion that the discovery was outstanding is disingenuous in light of the admission c ontai ned in his third Affidavit of September 13, 1994, that he had “been examining a numbe r of documents pro duced in discover y by the Plaintiff . .

.” If the Bank did,

in fact, fail to comply with the discovery request, Dunlap should have followed the procedure mandated in such circumstances b

y Rule 56.07 T.R.C.P. T

hat rule states:

Should it appear from the affidavits of a party opposing the motion that such party cannot for reasons stated present by affidavit facts essential to justify the opposition, the court may refuse the application for judgment or ma y order a continu

ance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Rule 56.07 T.R.C.P. The record is devoid of any evidence that Dunlap ever filed an affidavit that complied with the foregoing Rule stating the need for further discovery. Furthermore, Dunlap requested and was granted anextension in which to respond to the motion for summary judgment and did not file the aff

idavit during that ti

me. Therefore

, Dunlap sh

ould not b e heard to now complain. Dunlap also asserts that “[t]here is some doubt regarding the propriety of the court’s granting a motion for summary judgment while various motions are pending.” The two outstanding motions to whi ch h e refers are AHP’s “Motion to Set Aside Default Judgment” and Dunlap’s“Motion to Amend Answer to File Compulsory Counterclaim.”
Appellant does no t indicate how the o utstanding motions mig

ht create a genu

ine issu e of material fact so as to preclude summary judgment. We find no requirement that all outstanding motions be resolved in ad vance of summary

judgment. Under Ru

le 56 T.R. C.P., once th

e Bank established Dunlap’s liability, the burd en shifted to Dunlap to establish that a genuine issue of material fact existed. Du

nlap failed to dem

onstrate such fa

cts, and we find that

this issue is without merit.

IV. Whetherthe trial court erredin denying Dunlap’s motion

to amend answer to

file compulsory co

unterclaims:
The Bank moved for summary judgment on June 22, 1994. After being postponed twice at Dunlap’s insistence, the motion was heard on September 20, 1994. On February 24, 1995, Dunlap filed a

Motion to Amend Answer to File Compulsory Counterclaim. Rule 15.01 T.R.C.P. provides that leave to amend pleadings is to be freely given. Ho wever, despite

the liberality of our Rules, the decision to permit amendment is within the sound discretion of the trial court, and such decisions are rarely reversed on appeal unless there is an abuse of discretion. Wilson v. Ricciardi , 778 S.W .2d 450, 453 (Tenn. App. 1989). One relevant factor guiding the Court in this cas e i s Dunlap’s del ay in filing the motion to amend answer. Merriman v. Smith , 599 S.W.2d 548, 559 (Tenn. App. 1979).

In Welch v. Thuan , 882 S.W.2d 792, 794 (Tenn.App. 1994), this Court addressed
a similar circumstance and found that it was not error for the trial court to deny a plaintiff’s motion to amend the complaint where it appeared that the movant had filed the motion to amend within a week after the motion for summary judgment had been f iled. In this case, Dunlap waited seven months after the motion for summary judgment had been filed an d some five months after the hearing on the motion befor e filing a motion to

amend the complaint. In light of the foregoing, we find that the trial cour

t did not abuse its

discretion in denying the motion to amend, and in granting summary judgmentto the Bank on the basis of the pleadings as they stood at the time the motion for summary judgment was filed. Id . at 794. The decision of the trial court in this regard is affirmed.V. Whetherthe trial court erred in denying AHP’s motion to set asi de the d efault judgment in o rder to allow it to

file compulsory counter

claims:

The Bank filed a motion for default judgment against AHPon March 11, 1994, which the trial court granted on March 18, 1994. AHP did not file a notice of appeal from th

at judgment. On October 31, 1994, AHP filed a Rule 60.02 T.R.C.P. motion to set aside judgment by default. The trial court denied the motion by order entered December 12, 1994. AHP filed a second Rule 60.02 T.R.C.P. motion to set aside the default judgment on March 17, 1995, which the trial court denied by “Order on

Pending Motions” entered January 26, 1996. Thereafter, Dunlap and AHP filed the notice of appeal on February 22, 1996.

Parties seeking relief f

rom a judgment by me

ans of a Tenn.R.Civ .P. 60.02 moti o n have the burden of proving that they are entitled to relief. Hopkins v. Hopkins , 572 S.W.2d 639, 640 (Tenn.1978); Rhea v. Meadowview E lderly A

partments, Ltd. , 676 S.W.2d 94, 95 (Tenn. App.1984). This is also

true for parties

seeking relief f

rom a default judgment in

accordance w

ith Tenn.R.Civ.P. 55.02 and Tenn.R.Ci v.P. 60.02. However,

motions to

set aside default judgments are notviewed with the sa

me strictness that motions to set aside judgme nts after a hear

ing on the merits
are viewed. Motions to set aside default judgments are construed liberally in favor of granting the relief requested. Tenn. Dept. of Human Services v. Barbee , 689 S.W.2d 863, 867 (Tenn.1985).

Obtaining relief from a default judgment is generally a ccompli shed in one of two ways. Most commonly, the movant sets forth facts explaining why it is entitled to relief and demonstrating that it has a merit orious defense to the underlying ac

tion. However, a

default judgmentcan also be set aside upon proof in accordan ce w ith Tenn.R.Civ.P. 60.02(3) that the judgmentitself

is void. Patterson v. Rockwell Int’l , 665 S.W.2d 96, 100-101 ( Tenn.1984); Hopkins v. Hopkins , 572 S.W.2d 639, 640 (Tenn.1978).

An order denying a Tenn.R.Civ.P. 60.02 motion is a final order. Thus, an affected party m ay, at its opti on, pursue a dire ct appeal or see

k a re-examinat

ion of the order pu

rsuant to Tenn.R.Civ.P. 59. Inryco, Inc. v. Metropolitan Engineering Co., Inc. , 708 F.2d 1225, 1232 (7th Cir.), cert. denied , 464 U.S. 937, 104 S.Ct. 347 (1983); Daly Mirror, Inc. v. New York News, Inc. ,533 F.2d 53, 56 (2d Cir.), cert. denied , 429 U.S. 862, 97 S.Ct. 166 (1976). In this

case, Appellant

s didnotappeal the trial c

ourt’s denial of th

e first motion to set a

side order grant

ing default

judgment entered December 12, 19

94. Accordingly,

it appears that the

judgment i s final, and the second motion to set aside default judgment filed March 17, 1995, is barred by the doctrine of res judicata
. Lee v. Hall , 790 S.W.2d 293, 294 (Tenn. App. 199 0); Stacks v. Saunders , 812 S.W.2d 587, 590 (Tenn. App. 1990).

AHP also moved to set aside the default judgment so that it could file a compulsory counterclaim;

however, the trial court

denied the motion, h

olding that the prop

osed counter-c

laims could notbe filedafter entry of judgment. In Ingram v. Phillips , 684 S.W.2d 954, 958 (Tenn. App. 1984), the trial court had entered a judgment in favor

of plaintiff. Afte

r entry of judgmen

t, defendant soughtto amend the judgme nt in order to as sert a compulsory counterclaim, which the trial court denied. On appeal, the Mid dle Section of this Co

urt held that defe

ndant’s attempts to

assert a compulsory counterclaim after the entry of the judgment came too late, and defendant was barred from asserting the counterclaim. Likewise, we find that the issue is without merit.

VI. Whether the trial court erred in den ying AHP’s motion to set aside the default ju

dg ment w hen Bank’s motion for default judgment had been filed prior to an answer being due:
Appellants

argue that the de

fault judgment is voi

d because the moti

on for default judgmentwas filed before a timely response

by AHP was due and

because the Bank failed to give AHP the required notice of the motion for default judgment. The Bank filed its original complaint in this cause on December 7, 1993. The Bank was unable to personally s erve Dunlap, and on January 7, 1994, the trial court entered an order of publication. On January 21, 1994, the Bank filed its First Amended Verified Complaint. Service of process by publi cation was completed on February 1, 1994, as evidenced by the notice of

filing of proof of publication on February 7, 1994. On February 15, 1994, the Bank per sonally served pr

ocess upon AHP’s c

orporate secretary, Berlyn Du nla p. The Bank subsequently discovered that Dunlap was residing in Florida. Thereafter, on March2, 1994, the Bank served Dunlap and AHP with the Bank’s motion for default judgment basedupon the service of process by publication completed February1, 1994. On March 4, 1994, the Bank sent Dunlap and AHP copies of the Affidavit of Aubrey G. Oliver.On March 11, 1994, the Bank fil ed a motion fo r judgment by default based on the February 15, 1994, personal service on AH P’s corporate secretary, Berlyn Dunlap. That motion expressly stated that the moti

on would be heard

on Ma rch 18, 1994 , if no answer was filed. The Bank then served notice upon Dunlap at both his last k nown Memphis address and at his Florida address. On March 18, 1994, the trial court entered a default judgment against AHP.

Rule 12.01 T.R.C.P. e

xpressly provides :

A defend ant shall serve and file an answer within thirty (30) day s after the service of the summons and complaint upon him . . .
Therefore, AHP had 30 days after service in w hich to file an answer. AHP did not do so. The original complaint was filed on December 7, 1993, and the First Amended Verified Complaint was filed on Janua ry 21, 1994. In spite of the service by publication completed February 1, 1994, the Bank personally serve

d AHP through its cor

porate secreta

ry on February 15,

1994. While it is undisputed that the motion for de fault judgment was filed before the answer was due, we find no prohibition to that pr actice. AHP did not file an a nswer within 30 day

s as required by th

e Rules. The motion for defaul

t judgment was neith

er heard nor t

he order granted until March 18, 1994, which was more than 30 days after the First Amended Verified Complaint had been filed.

Rule 55.01 T.R.C.P. contains no prohibition against the premature filing of a motion for default judgment so long as the order on default judgment is not entered until after the time the defendant has had to

respond. AHP argues that the Bank did not give it proper notice of the hearing
on the motion for def

ault judgme

nt. The facts are uncontroverted that the Bank personally served AHP’s corporate secretary with a copy of the First Amended Verified Complaint on February 15, 1994. Thereafter, the Bank on March 11, 1994, served both AHP and Dunlap with the motion for default judgment and a notice of

the hearing on motion for default judgment. AHP did not make an appearance, timely file an answ er, nor come for

ward with any exp

lanation as to

why it failed to

plead
or otherwise defe

nd this action. The

Bank complie

d w ith all rules rega

rding obtaining a de

fault judgment, and the trial court properly granted the Bank’s motion for default judgment against AHP.VII. Whetherthe trial court erred in denying Dunlap’s motion to reconsider and for sanctions:

In its supplemental memorandumin support of summary judgment, the Bank cited the case of Wilkerson v. Standard Knitting Mills, Inc. , 1989 WL 120298 (Tenn. App. Oct. 11, 1989). In fact, the port

ion of the case

relied upon by the Bank was this Court’s dissent, and the Bank didnot designate it as such. Dunlap subseq uently fi led a motion to reconsider ruling and for sanctions on July 10, 1995. Tha t motion was ultimately denied by the trial court on January 26, 1996. That same January 26, 1996, order granted the Bank’s motion for summary judgment.

It appears to the Court that the Bank’s counsel notified the trial court of the error on July 10, 1995, during a hearing. Bank’s counsel stated:

I have an apology to

make tothe Court and a clarification. Mr. Smith this morning brought to my attention thatthere was a miscitation on my part of an unreported case. I n a supplemental me morandum I referred to an unreported

case. . . . When I cited the Court, I did not explain that I was citing, and I f

rankly didn’t see it. Mr. Smi th just brought it to my attention. In the case of Wilkerson Standard versus Stan dard K nitting Mills what I cited to the Court was from the dissenting opinion.

The trial court was aware of the mistake on July 10, 1995, and even addressed th e issue during the hearing. The trial court stated:

In the case I didn’t rely upon it [Wilkerson case] and I will look at

it and see, and if it is not

a determining factor, there is not a lot to talk about probably.

In addition to pointing ou t the mistak e, Dunlap moved the trial court for Rule 11 T.R.C.P. sanctions against the Bank’s counsel including denying the motion for summary judgment, dismissing the Bank’s counsel of record, and awarding Dunlap attorney’s fees and costs. The trial court denied said relief. We do not find that the trial court erred in this regard.

It appears to

the Court that the erroneous citationto legal authority was inadvertent and unintentional. The trial cou r t went so far as to state that it had not relied upon the Wilkersoncase, and the Bank cited in its memorandum to other reported authority that has not been challenged. It further appears that

the trial court was aware of the mistaken citation for over six months from July 10, 1995, until the entry of the order granting the m otions for su mmary judgment on January 26, 1996. In light of the foregoing, the trial court did not err in denyi ng Dunlap’s motion for reconsider ation and for sanctions, and we affirm the trial court’s decision denying the requested relief.

VIII. Whetherthe trial court erred in finding Dunlap in contempt of c o urt:

Dunlap has appealed the October 11, 1996, “Order on Contempt” which f

ound him to be in contempt of c

ourt for his

failure to abide by the tria l court’s April 6, 1 994, injunction aga inst transfe rring and disposing of assets, for his failure to comply with the July 9, 1996, Order Compelling Discovery and the July 16, 1996, Order to produce American Expre

ss records. The trial court ordered Dun lap to produ ce all records related to ownership of both bank and investment accounts and related tra

nsactions. The Or

der also require

d Dunlap to produc

e all American Ex

press records, bank records, income tax records and the like.

Dunlap asserts that under the rationale of Loy v. Loy , 222 S.W.2d 873 (Tenn. App. 1949), a party may be tried only o nce for contempt. He maintains that the trial court had administeredpunishment previously and that he should not be punished again for the prior contempt because the trial court had already administered punishment for the previous offenses.

During the course of theproceedings, the trial court order

ed Dunlap to comply

with the discovery requests on several occasions. By order entered July 9, 1996, the trial court compelled discovery pursuant to the Bank’s requests. Subsequently on July 16, 1997, an or der was entered directing Dunlap, in lieu of a contempt hearing , to produce his Morgan-Keegan account statements, copy of the 1995 Je

ep title and his

American Expre

ss records. That

sameorder instructed Dunlap to ap pear for his deposition on the following day, July 18, 1996. Dunlap neither produced the requested information nor

appeare d for his deposition. Dunlap made a partial production of d ocumentson July 29, 1996, but from the documents submitted, it was apparent that Dunl ap ha d violated the trial court’s April 9, 1 994, order prohibiting disposition of his assets. Thereafter onAugust 9, 1996, Bank filed a second motion for contempt.

The petitions for contempt came to be heard on October 9, 1996, and on October 11, 1996, the trial court entered an order finding Dunlap in civil contempt for violating the April 6, 1994, injunction , the July 9, 1996, order compelling discovery, and the July 16, 1996, order to produce financial records. That same order also directed Dunlap to produce numerous records no later than November

11, 1996. Evidently, Dunlap never complied with the trial court’s order by producing the documents.

There has been no showing that Dunlap ever complied with the trial court’s directives
or that he otherwise complied with the discovery re quests. Therefo

re, Dunlap has no

t purged himself of contempt, and we find that Dunlap has only been “punished” for contempt once by entry of the October 11, 1994, “Order on Contempt.”

Civil contempt is intended to benefit the litigant by compelli ng compliance with

the trial court’s orders.

Parties in contemp

t may purge themse

lves by compliance . There is a maxim in the law that

He who seeks Eq uity must do Equity, and he who has done

inequity shall not have Equity.” Therefore, it is a general rule that a partywho i s in contempt will not be heard by the Court, when he wishes to make a motion or a sk a favor; . . . . H is first duty is to purge his contempt, and the only steps he can take are to apply to the Court(1) to set aside the proceedings against him because the y are irregular, and (2) to be discharged on the ground that he has purged himself of his contempt, by doing the act for the non-performance of whi ch the contempt was incurred, and confessing judgment for the costs occasioned by his contumacy.
Segelke v. Segelke , 584 S.W.2d 211, 214 (Tenn.App. 1978) (quoting Gibson’s Suits in Chancery , 5th ed., Vol. 2, § 970, p. 195).

In this case, Dunlap has not purged himself of contempt. However, rather than refuse to hear the appea

l, in the interest of jud

icial economy, we

will hear and dispo

se of the appeal.

In so doing, we find that Dunlap was punished once for contempt by order entered October 11, 1996, andthat

he has not purged himself of said contempt. Accordingly, we find that Dunla p has no basis

to complain.

IX. Whe therthe trial court erred in ordering the Chancery

Court Clerk’s Office to release to Bank funds on deposit:

On October 8, 1996, Dunlap and AHP filed a motion, inter alia , to st ay the proceedings to enforce

the judgment. The tr

ial court denied s

aid request by order entered October 29, 1996, and released to the Bank funds paid into the trial court by Dunlap and/or AHP. That order resultedin a disbursement to the Bank in

excess of $28,000. Appellants subsequently petitioned this Cou rt forrelief which we denied by Order entered December 6, 1996. Dunlap asserts that it was
error for the trial court to release the funds while the appeal was pending. In light of the fact that we have found, as did the trial court, that Dunlap and AHP are liable for the judgment, we conclude that it was not error for the trial court to release said funds before conclusion of the appeal.

For the foregoing, re

asons, we conclu

de that the judgmen

t of the trial cour

t should be and is affirme

d in all respects.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)

______________________________ INMAN, Sp. J. (Conc

urs)