### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 2000 Session

MARGARET ABBOTT v. ROBERTO GATEWAY, ET AL


### .
Appeal from the Circuit Court for Davidson County No. 99C-965 Carol Soloman, Judge

No. M1999-00653-COA-R3-CV - Filed July 28, 2000

The General Sessions Court of Davidson County awarded a judgment against the defendant below, Nationwide Insurance Company, in a case involving a car accident. N

ationwide filed a

n appeal to the Davidson County Circuit court but failed to secure a trial dat e within 45 days as required by Davidson County Local Rule of Practice 20(b) (1999). The circuit cour t dismissed the case

due to Nationwide’s failure, and Nationwide filed a Tennessee Rule of Civil Procedure 60.02 motion to set aside the circuit court dismissal due to its attorney’s excusable neglect. When the circu it court denied Rule 60.02 relief Nationwid e appealed to this

court. On appeal, we reverse the decision of the circuit court fin

ding that it should ha

ve granted Natio

nwide’s request

for Rule 60.02 relief and set aside the dismissal of Nationwide’s circuit court appeal.

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

Reversed and Remanded

W ILLIAM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and P ATRICIA J. C OTTRELL , J., joined.

Sean Antone Hunt, Nashville, Tennessee, for the appellants, Roberto Gateway, Emma Barton, and unnamed defendant/appellant, Nationwide Insurance Company.

Larry H. Hagar

, Nashville, Tenne

ssee, for the app

ellee, Margare

t Abbott.

OPINION

Afte r Margaret Abbott was in a car accident in December of 1996, she brought suit in the General Sessions Court of Davidson County aga

inst Roberto Gatew

ay a/k/a Roberto Gatewood and Emma Barton, as well as against her own uninsured motorist car rier, Nationwide Insurance Company. The case was tried on March 29, 1999 before the general sessions court which entered

a ve rdict in f

avor of Ms. Abbott against Nationwide and which awarded her a judgment in the amount of $14,760. Nationwide, Appellant in this action, filed an appeal bond with the Davidson Co

unty Circuit Courton April 7, 1999. The day after Nationwide filed

this appeal bond, th

e Davidson County-2-

Circuit Court Clerk’s office sent a letter to Ms. Abbott’s attor

ney informing him tha

t the case had been appealed from the general sessions court and that it should be set for trial within 45 days pursuant to Davidson County

Local Rule

of Practice 20(b

) (1999). Appella

nt’s attorney, Sea

n Hunt, stated in an affidavit that he never received notice that the appeal had

been docketed or that it had not been set pursuant to local Rule 20.

On June 7, 1999, the circuit court entered an order dismissing the appeal and reinstating the judgmentof the general sessions court. In its order, the court explained that since the case had not been s et for trial within 45 days, it must dismiss Appellant’s appeal in accordance with Davidson County Local Rule of Practice 20(b) and Rule 41. 02 of the Tennessee Rules of Civil Procedure providing for

involuntary dismissals. Appellant received a copy of this order of dismissal on June 8, 1999, and the next day, June 9, Appellant filed the motion to set aside the circuit court’s dismissal which is the subject of this appeal.

In its motion to set as ide the order of dismissal, Appellant claimed that its counsel, Sean Hunt, had made severa

l unsuccessful at

tempts to determine

whether the matt

er was re ceived and docketed from the general sessions court. Thereafter, Mr. Hunt mistakenly thought this matter had been set by agreement of counsel as had another of his cases and he noted this in his files. In an affidavit, Mr. Hunt stated that "[a]pparently, this mistake occurred due to confusing this ca

se with another case which had been appealed from General Sessions Court." He asserted by affidavit that he "received no Notice

from the clerk indicating that the appeal had been docketed nor any Notice from the clerk indicating that the matter had not been set pursuant to local Rule 20 and was about
to be dismissed. The first indication that defense counsel had that the matter had been dismissed was receipt of the order of Dismissal on June 8, 1999, the Order being filed on Ju ne 7, 1999." In its motion to set aside the order of dismissal, Appellant

sought Rules 60.02 relief for excusable neglect on the part of its c

ounsel.

Appe llee, Ms. Ab bott, filed a resp onse to the motion to s

et aside the orde

r of dismissal. Appellee attached her attorney’s affidavit in which the attorney asserted that he had received a notice of appeal filed by Appellant on April 1, 1999 and a letter from the circuit court clerk’s office on April9, 1999 indicating that the matter had been docketed. He stated that his only communication withApp ella nt’s attorney was through a May 7, 1999 letter making an offer of judgment and offering to settl e th e case that was pending before the circuit court. Otherwise, he had not communicatedwith defense counsel since the time they were

in general sessions court regarding the

case.

The trial court

also dismissed Appellant’s motion to set aside the order of dismissal as well

as its motion to alter or

amend the judgment

. On appeal, Appellant argues that the trial court erred in failing to set aside

, pursuant to Rule 60 .02, its order dismis sing the case and in reinstating the judgment of the general sessions court entered in accordance with a Davidson County Local Rule of Court 20(b). Tennessee Rule of Civil Procedure 60.02 permit s the court to relieve a party or its legal representativefrom a final judgment order or proceeding dueto mistake, inadvertence, surprise or excusable neglect. "The burden is upon the mov ant to set fo rth in a motion or petition and-3-

supporting affidavits facts explaining why the movant was justified in failing to avoid the mistake, inadvertence, surprise or negle ct." Tennessee State Bank v. Lay , 60 9 S.W. 2d 525, 527 (Tenn. C t. App. 1980). Requests for Rul e 60. 02 relief "are addressed to the trial court’s discretion, and thus appellate courts review decisions regarding [Rule] 60.02 relief u sing the a buse of discretion standard." McCracken v. Br entwood United Met

hodist C hurc h , 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997).

"D ismissal is a drastic reme dy when the party i

tself is not at faul

t . . . ." Nelson v. Application Group, Inc. , No. 01A01-9703-CV-00137, 1997 W L 706610, at *4 (Tenn. Ct. App. 1997). This court h as stated that "[o]ur judicial system favors the just, speedy and inexpensive determination of every suit on its merits." Nelson v. Simpson , 826 S.W.2d 483, 487 (Tenn. Ct. App. 1991) (citing Tenn. R. Civ. P. 1 and Keck v. Nationwide Sys., Inc. , 499 S.W.2d 266, 267-68 (Tenn. Ct. App. 1973)); see also Lay , 609 S.W.2d at 527.

This Court has held that "[n]egligence on the part of the moving party [is] precisely the type of error a Rule 60 mo

tion is designed to r

elieve." Tate v. County of Monroe , 578 S.W.2d 642, 644 (Tenn. Ct. App.1978); Lay , 609 S.W.2d at 527. Fu rthermore, "mis

take, in advertence, surprise, excusable neglect or

misfortune of the moving party's attorney may be grounds for vacating a default judgment." Lay , 609 S.W.2d at 527 (citing Keck , 499 S.W.2d) (emph asis added); see also Campbell

v. Archer , 555 S.W.2d 110 (Te nn. 1977) (granti

ng a new trial d

ue to attorney mistake

citing Rule 60.02 law). In engaging in the fact-intensive analysis required b y Rule 60.02, courts have considered several factors including the actions taken by the moving party to correc t its oversight and the extent of prejudice experienced by the non-moving part y due to the Rule 60.02 movant’s mistaken or inadvertent

conduct. See, e.g., Simpson , 826 S.W.2d at 486; Lay , 60 9 S.W.2d at 527-28; Application Group , 1997 WL 706610, at *4.

The record in the ca se at bar does not i ndicate what fa

ctors the trial co

urt considered in making its decision to deny Rule 60.02 relief. However, upon review of the record, this court finds that the circumstances of this case support a grant of Rule 60.02 relief. It is clear that the party itself, Nationwide, has no fault here and that all the fault rests with Appellant’s counsel, Mr. Hunt. See Campbell
, 555 S.W.2d at 112-1 3 (noting the party ’s lack of fault in its decision to gran

t a new trial). It is also undisputed th

at Mr. Hunt took imme

diate action to correct his oversight. The day after he learned of the dismissal by receiving the order of dismissal from the circuit court, Mr. Hunt filed a motion on behalf of Appellant to set aside this dismissal. Finally, there is no evidence that the non-moving party,

Ms. Abbott, will suff

er any prejudice

by a delayed appe

al to the circuit c

ourt.

Under very similar fac

ts, this court reversed a trial court’s denial of Rule 60.02 relief in the

case of Nelson v. Applic ation Group, Inc. , No. 01A01-9703-CV-00137, 1997 WL 706610 (Tenn. Ct. App. 1997). As in this case, the party who lost in t he general sessions

court, the defen

dant, appealed to the circuit court but failed to secure a trial date within 45 days as required by Davidson County Local Rule

20(b) which was a

t that time Local Rule 19(b). The circuit court first dismissed the defendant’s ap

peal, and, subseq

uently, it d

eni ed the defendant’s motion to set aside that dismissal. On appeal to the c ourt of appeals, thi s Court reversed the denial of Rule 60.02 relief reasoning as foll

ows:-4-

This Court has determin

ed that [ the d efendant] did no t cause its lawyer

's failure to complywith Rule 19; that the lawy er complied with Rule 19 by timely filing a motion to set; that, under the rule, the case was due to be set; that [the plai

ntiff] did
notobject to the motion to set and never complained of any delay in setting the case; th at [the plaintiff] will not be prejudiced by a delayed trial; and that, under th e circumstances of this case, [ the defe ndant] should not be penalized for its lawyer's failure to promptly file an order confirming that his motion to set had been granted. Dismissal is a drastic reme dy when the party i

tself is not at faul

t, and Rule 60.02(1) relief should b e granted when the lawyer realizes his oversight and takes steps to correct

it.

Id. at *4. Two members of the three-judge panel wrote concurring opinions clari fying that rel ief should not be granted every time a "lawyer realizes his [or her] oversight and takes steps to correct it," but that this was only one of many factors to consider. See Id. at *4-*5 (Koch, J. and Bussa rt, J., concurring). It was also pointed out that the defenda

nt’s lawyer did

not comply with loca

l Rule 19(b) as stated in the majority opinion since that rule requires the actual setting of the trial. Id. at*4 (Bussart, J., concurring). However, the concurring judges agreed that the defenda

nt was entitled to Rule 60.02 relief under the facts of this case.

Likewise, under the facts of the case at bar, we find that the trial court abused its discretion in failing to

set aside the dismissal of Appellant’s circuit court appeal. Accordingly, the judgment of the trial court is reversed and this case is remanded to the circuit court so that Appellant might set the trial date in compliance with Davidson County Loc al Rule 20(b). In our discretion and under Rule 40 T.R.A.P., costs on appeal are taxed to Appellant, Nationwide Insurance Company.

__________________________________________ WILLIAM B. CAIN, JUDGE