# FILED
Novemb er 14, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk PAUL KEVIN NELSON, ) ) Plaintiff/Counter-Defendant/ ) Appellee, ) ) Davidson Cir

cuit VS. ) No. 96C-1861 ) THE APPLICATION GROUP, INC., ) ) Appeal No. Defe ndant/

Count er-P laint iff/ ) 01-A-01-9703-CV-00137 Appellant. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEAL FROM THE DAVIDSON FIF TH CIRCUIT COURT

AT NASHVILL E, TENNESSEE
HONORABL E WALTER C. KURTZ, JUDGE Philip D. Irwin, #12128 NEA L & HA RW ELL, P LC 2000 First Union Tower 150 Four th Avenue

North Nashville, TN 37219-2498 ATTORNEY FOR PLAI

NTIFF/COUNTER-D EFENDANT/APPELL EE W. Reece Willis, III , #15085 WILL IS & KNI GHT 215 Secon d Avenue , North Nashville, TN 37201 ATTORNEY FOR DEFENDANT/COUNTER-PL AINTI FF/APPELL

ANT 

### REVERSED, VACATED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR I

N SEPARATE

OPIN ION S: WILL IAM C. KOCH, JR., JUDGE WALTER W. BUSSART, JUDGE-2-

PAUL KEVIN NELSON, ) ) Plaintiff/Counter-Defendant/ ) Appellee, ) ) Davidson Cir

cuit VS. ) No. 96C-1861 ) THE APPLICATION GROUP, INC., ) ) Appeal No. Defe ndant/

Count er-P laint iff/ ) 01-A-01-9703-CV-00137 Appellant. )



## O P I N I O N
This appe al involve s the act ion of the

Circuit Cou

rt in resp ect to ap

peals fr om tw o judgmen ts of the General Sessions Court which were handled under a single caption and docket number in

the Circu it Court an d have been cert ified to th is Court as a single

appeal.

The defend ant-counter plaintiff, The Application Group, I nc. (hereafter “TAG” ) has appealed from the dismissal of its counter complaint. The plaintiff, Paul Kevin Nelson, has not appeale d, but has f

iled his br ief in thisCourt.
On January

10, 1996, plaintiff filed in General Sessions Court a civil warrant charg ing TAG with: conversion, breach of contract, and brea ch of quas icontract for mone

y pa id on beha

lf of def endant.
The warrant was numbered 96GC546 and was ser ved upon TAG , a nonres ident corporation throu gh the Secretary of State. On May 1, 1996, the General Sessions Court rendered ju d gment in favor of the plaintiff, Paul Kevin Nelson, and aga inst the defendant, TAG, for $1,693.54. On May 9, 1996, TAG’ s appeal was granted to the Circuit Court on bond; and, on May 16, 1996, the war

rant was received by

the Circuit Court Clerk.

On March 11 , 1996, the

defenda nt, TAG, file d in Gene

ral Sessio ns Court a

civil warrant against Paul Kevin Nelson for:-3- amounts due and owing on a sworn account in the amount of $3,600.00 for breach of the attached contract, quasi contract and quantum meruit.
Th e warran t was numbered 96GC546CC. No sworn account was attached to the warrant.

On May 1, 1996, the Gene ral Sessions Court entered a judgment in favor of TAG and agains t Paul Kevin Nelson f or $-0- a nd costs.

On May 9, 1996, the Gene ral Sessions Judge granted TAG’s appeal to the Circuit Court upon Cost Bond.
On May 16, 1996, t

he warr ant was f iled in Circ

uit Court.

On June 24, 1996, under the caption of TAG v. Nelson (the countersuit of TAG), TAG filed in Cir cuit Court a motion for an order setting “this case” for trial. The caption of

th e motion included the number 96C1861 and the following notice:

This motion will be presented to the Court for a ruling at 9:00 A.M. on the 5th day of Jul y, 1996. You are advised that the failure to fileand serve a timely written response to the motion may result in the mo tion being gr anted with out fu rther hearin g. On December 26, 1996, the Circuit Court entered the following order: NELSON, PAUL

KEVIN, Plaintiff, No. 96C1861
v. APPLICATI

ON GROUP, INC., THE, Defend ant.-4- ORDER OF DISMI SSAL It ap pears to the Court t

hat this ca

use has not been set for tria l within fo

rty -five (4 5) day s. T herefore, in acc ord anc e wi th Ru le 1 9(b ) of Lo ca l Rules of Practice of the Courts of Record of Davidson

County and Rule 41.02

Tenness ee Rules o f Civil Proc edure th is appeal should be dismissed. It i s therefore, ORDERED th at the jud gment of th e G eneral Sessions Court is hereby made a judg ment of th e Circuit Cou

rt. Further, the costs of this cause are a ss essed to the Appellant, and/or its surety for which execution may

issue, if necessary . (Emphasis supplied)
Loca l Rule 19 of

the Tria l Court re ads as fo llows: (a) It shall be the duty of the pa rties and/or

th ei r a tt or ne ys to determine when a case appea led from the General Sessions Court is filed with the Circuit Court Clerk. (b) The case shall be set for trial withi n for ty-five (45) day s. If the case is not set within forty -five (45) day s, an order will be en tered making the judgment of the Gene ral Sessions Court the j udgmen t of the Cir

cuit Court

withcost s taxed to the appellant. At the time the appeal is perfected in the Clerk’s Office, the clerk shall give the appellant or his or her attorney

written notice of this rule. (c) The signature of an attorney or

party to an appe al from G eneral Sessions Court shall c onstitute a certifi cate

unde r T.R.C.P. 11 . [ As am en de d b y o r der entered November 21, 1994, effective January

1, 1995.]
On January

2, 1997, TA G moved the Circuit Court to set aside its December 26, 1996, order pursuant to TRCP Ru les 60.0 2 and 59.04, supported by a ffidavit that motion to set was filed on June 24, 1996, with notice of hearing thereon July 5, 1996. The affidavit stated further: Comes the defe ndant/co unte r-plaintiff, Th e Application Group, Inc., pursuant to Tenne ssee Rule of Civil Procedu re 60.02 and/or 59.04, and moves this Court to set aside its Order

of Dismiss al entered December 20, 1996. Pursuant to Tennessee Rule of Civil Procedure 60.0 2, t he Court, under such terms that are just, may r elieve a party from a final judgment upon a showing of mistake, inadvertence or excusable neglect. As demon strated b y the attac hed Aff idavit of defendant/counter-plaintiff’s counsel, W. Reese Wi ll is , III, those grounds exist here.-5- Wherefore, defendant/counter-plaintiff pr ays the Court grant t his motion a

nd set asi de the Or

der of D ismissal.
Paul Kevin Nelson filed a memorandum in opposition to the motion.

On Januar

y 21 , 1997, TA G filed th

e following notic e of appe al: P ursuant to Rule 4 of

the Tennessee Rules o f Appellat e Procedure, notice is hereby given that the Defendant/Counter-Plaintiff, The Appli cati on Group, Inc., appealsto the Tennessee Court of Appeals, fro m th e trial court’s Order of

Dismissal e

ntered i n this actio n on the 20th day of December, 1996, as well as the trial cou rt’s d enial of Defendant/Counter-Plaintiff’s Motion to Set Aside pursuant to Tenn. R. Civ. P. 60.02 and/or 59.04. On January 24, 1997, the Circuit Court overrule d the motion of TAG to set aside the dismissal under Rules 60.02 and 59.04.
On January 29, 1997, the Circuit Court entere d the following order: THE APPLI CATION GROUP, I NC., Defendant/Counter-Plaintiff,

No. 96C1861 v. PAUL KEVI

N NELSON Plaintiff/Counter-Defendant

ORDER Th is c ause came on to be heard on the 17th day of Ja nu ar y, 1997, upon the Defendant/Appellant’s Motion to Set Aside this Court ’ s Order o f Dismissa l, pursua nt to Tenn. R. Civ. P. 59.04 and 60.02, da ted Dec ember 20 , 1996. Up on said Motion, argument of counsel heard for the respective parties in Court on tha

t date, a nd the ent ire rec ord in this c ause, it is he re by, ORDERED, ADJUDGED AND DECRE

ED that: 1. This matter , appealed from the Davidson County General Sessions Court on or about May 16, 1996, was notset for trial within for

ty- five (45 ) day s as requ

ired by Rule 19(b) of the Davidson County L ocal Rules of Practice;-6- 2. In ac cordance with Loc al Rule 19(b), this Court entered an Orde r on December 20, 1996, dismissing the Defendant’s appeal and making the judgment of the G ener al Sessions Court the jud

gment of this Court; 3. The Defe ndant’s M otion to Set Aside this Court’s Order of

Decembe r 20, 1996

is not well

taken and is hereby de nied; and 4. This Court’s Order of Dec ember 20 , 1996, sha ll remain in full forc e and ef

fect.
On February

3, 1997, TAG filed notice pursuant to TRAP Rule 24(d) that no transcript or statement of the evidence would be filed.

The technical record was rece ived by the Clerk of

this Court on March 20, 1997, and filed
on March 31 , 1997; an d the par ties wer e notifie d t hat oral argument, if requested, would be heard on September 29, 1997.

On June 26, 1997, the Clerk of this Cour t rec eived and filed a “supplemental record” conta inin g the fo llow ing: 1. Agreed

order entered by

the Trial Court on June 25, 1997, a nd reading as fo llows: It appear ing to th e Court that the p arties a re in agreement

that the attache d doc uments should have been included in the record

on appea l in this ca se as atta

chments to the General Sessions Civil Warrant filed by The Application Group, Inc. and that

the Clerk should be directed to prepare a nd transmit to the Clerk of the Court of Appeals a suppleme ntal rec ord to inc lude said document s.
2. An affidavit of Karen Beama n filed with the Trial Clerk on June 25, 1997, stati ng: 3. I am t horoughly f amiliar with and knowledg eable

of the amount owed to The Application Group, Inc. by

Kevin Nelson, a former employ ee of t he co mp an y. 4. To the best of my knowledg e, information and belief, Mr. Nelson properly owes The Application Group, Inc. Thr ee Th ousand Six Hu ndred Do llars ($3 ,600.00) . This Affidav it is being given in support of the cou nt er-complaint filed by The Application Gr oup, Inc. aga

inst Kevin N elson ,-7- styled The Application Group, Inc. v . Paul Kevin Nelson , General Sessions court for Davidson Coun ty, Tenness ee, Case No. 96CG54 CC.
3. A letter from TAG to Paul K. Nelson dated Februar y 1, 1995.

4. A letter from TAG to Paul K. Nelson dated December 14, 1995.
TAG, the counter-plaintiff/appellant has presented the following issues for review on appeal: 1. Whether issuance of anorder

of dismissal based upon a n event ov er wh ic h l it ig an t h as no co nt ro l i s a rb it ra ry, capric ious and a

violation o f proce dural due process ? 2. Whether

Rule 60.02 of the Ten nessee R ules of Civil Procedure provides relief for a final judgment upon a

showing of mistake , inadver

tence or excusable

neglec t? 3. Whether

the Trial Court

abusedits discretion in failing to grant appellant’s motion to set aside the order of dismissal pur suant to Rules 60. 02 and/or

59.04 whe

n appella nt ma de a proper showing of mistake, ina dver tence a nd/or excu sable neglect. Paul Kevin Nelson, the plaintiff/counter-defendant/appellee presents the following issues: A. Whether Rule 19 of

the David son County

Local Rules of Practice conflicts with the substantive law of the State of Tennessee. B. Whether

the Trial Court abused its discretion in failin g to grant the Appellant’s Motion to S et Asi de its Order of Dismissal in the underlying a ction. Appellant first argues that the Trial Judge err ed in overruling its motion for relief under TRC P Rule 60.02

which re ads as fo llows: On Motion and upon which terms as are just, the court may relieve

a party or

the party’s leg al representative from a final judgment , order or

procee ding for

the following rea sons: (1) mistake, inadvert

ence, su rp rise or excusable neglect...or (5) any other r

eason justifying r

elief from the operation of the judgmen t. T he motion s hall be ma de within a

reasona ble time, and for reasons (1) and (2) not more than one yea

r after-8- the judgment, order or proceeding was entere d or taken. (Emphasis supplied)
This Court has determined that The Application Group did not cause its lawy er’s failure to comply with Rule 1 9; that the

lawyer complied with Ru le 19 by timely filing a motion to set; that, under the ru le, the c ase was d ue to be set; that Paul Kevin Nelson did not object to the motion to set and never

complained of any

delay in setting the

case; that Paul Kevin Ne

lson will notbe prejudiced

by a delay

ed trial; and that, under the circumstances of this case, The Application Group should not be p enalized for its lawy er’s fa

il ure to promptly file an or der confirming that his motion to set had been granted.

Dismissal is a dras tic remedy when the party itself is n ot at fault, and Rule 60.02(1) relief should be g

ranted w hen the la wy er rea lizes his ove

rsight a nd takes s teps to co

rrect it
.

The judgmen

t of the Tr

ial Court o verruling the Rul e 60.02( 1) moti on is reversed and vacated, and the c ause is r emanded to the Trial Court for

further procee dings in c onformity with this opinion. Co sts of this a ppeal ar e taxed eq ually , that is, e ach par

ty s hall pay

one-half of same.


### REVERSED, VACATED AND REMANDED.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR I

N SEPARATE

OPIN ION S: WILL IAM C. KOCH, JR., JUDGE WALTER W. BUSSART, JUDGE