1 Although the original complaint seems to have had multi ple plaintiffs,

only Mr. White, a pro se litiga nt, sign ed the Rule 60 .02 motio n. We sha ll, therefore, refer to him as the only p laintiff.

2 Th e dismissed co mplaint is not p art of the reco rd before this court, but the a ppellees’ state ment of the cas e indicates that it de alt with conditio ns at the Coffee County jail.



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs D

ecember 14,

2000 FRANKIE L. WHITE, ET AL 

### . v. RONNIE L. GAULT, ET AL 

### .

Appeal from the Circuit Court for Coffee County No. 28,301 L. Craig Johnson, Judge

No. M2000-00534-COA-R3-CV - Filed August 21, 2001

The plaintiff

filed a Tenn. R. Civ. P. 60.02 motion, seeking to reinstate his claim after the Supreme Courtreversed a dec

ision cited by

this court when dismissing his appeal. The trial court denied the motion. We affirm.

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

Affirmed and Remanded

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

AM C. K OCH , J R ., J., joined. Frankie L. White, Wartburg, Tennessee, Pro Se. Robert F. Hazard, Tullahoma, Tennessee, for the Appellees, Ronnie L. Gault Pamela Fr eeman.
OPINION

This appeal is th

e plaintiff’s 1 effort to resusc itate a dismissed c

omplaint. 2 On January 10, 2000, Mr. White filed a Motion for Relief from Judgment pursuant to Tenn. R. Civ. P. 60.02, asking the court to set aside its previou s order dismis sing his complaint for failure to pr

osecute. In h

is motion, he stated that 1) the trial court had dismissed the previous complaint on May 24, 1999 for failure to prosecute; 2) he had placed his notice of appeal in the mail at “(M.T.R.C.) Cockrill Bend Institute” on June 18, 1999, but th at the Coffee Coun

ty Clerk’s record showed the notice was not received until June 24, 1999, thir

ty-one day

s after th e court dismissed his complaint; 3) this court dismissed the appeal, citing Goodwin v. Hendersonville Police Dep’t , No. 01A01-9509-CH-00423-2-

(Tenn. Ct. App. Sept

. 17, 1997), becau se the notice was

not timely file

d; 4) this court issue

d its mandate to the trial court based on Goodwin ; and 5) on October 18, 1999 the Tennessee Sup reme Court reversed Goodwin

. In support of

his Rule 60.02 motion, the plaintiff submitted a memorandum setting out the above mentioned facts an d noting the similarity between his own case and Goodwin , in which an incarcerated pro se litigant had deliv ered his notice of

appeal to the app

ropriate perso n at the correctional facility wit

hin the allowed time . The Supreme Co urt s tated, “[W]e find his notice of appeal to have been timely filed because he delivered it to prison officials well within the period allowed.” Goodwin v. Hendersonville Police Dep’t , 5 S.W.3d 633, 634 (Tenn. 1999). Mr. White’s memorandum

concluded, “For the

foregoing re

asons, your

plaintiff respec

tfully requ

ests this court vacate its previous order of May 24, 1999, a n d reinstate said order as of the entry of the court’s order.” Although not directly

stated in the motion,

the plaintiff is ca

ndid in his brief that he wanted the trial court to re-enter

its dismissal of his complaint so that he could again appeal that dismissal. The trial court de

nied his motion and th

e plaintiff appe

als.

A party seeking relief under Rule 60.02 bears a heavy burden. As, this court has p reviously stated:
[R]elief underRule 60.02 is considered "an exception al remedy." Nails v. Aetna Ins. Co. , 834 S.W.2d 289, 294 (Tenn .1992). The function of Rule 60.02 is "to strike a proper balance

between the comp

eting principle

s of finality

and justice." Jerkins v. McKinney , 533 S.W. 2d 275, 28 0 (Tenn.1976). Rule 60.02 operates as "an escape valve from possible inequity that might otherwise arise from the unr elenting imposition of the principle o f finality imbedded in our procedural rules." Thompson
v. Fireman's Fund

Ins. Co. , 871 S.W.2d 157, 159 (Tenn.199 0). However, " [b]ecause of the 'principle

of finality,' the 'escape valve' should not be easily opened." Banks v. Dement Constr. Co . , 817 S.W. 2d 16, 18 (T enn.1991) ( quoting Toney v. Mueller Co. , 810 S.W.2d 145, 146 (Tenn.1991)).

To set aside a

judgment und er Rule 60.02 the burden is upon the movant to prove that he is entitled to relief, and there must be proof of the basis on which re lief is sought. See Brumlow v. Brumlow , 729 S.W.2d 103, 106 (Tenn. Ct. App .1986); Jefferson v. Pneumo Servs. Corp. , 699 S.W.2d 181, 186 (Tenn. Ct. App.1985). A motion for relief from a judgment pursuant to Rule 60.02 addresses the sound discretion of the trial judge. Accordingly, the scope of review on appeal is limited to whether the trial j udge abused his discretion. See Toney v. Mueller Co. , 810 S.W.2d 145 (Tenn.1991); Travis v. City of Murf reesboro , 686 S.W.2d 68, 70 (Tenn.1985).

Sellers v. Sellers , No. W2000-1475-COA-R3-CV, 2001 WL 523964 at *2 (Tenn. Ct. App. May 15, 2001) (no Tenn. R. App. P. 11 application filed).-3-

When this court entered its order dismissing the pla int iff ’s a ppe al, the pla int iff had six ty da ys to seek permission to appeal to the Supreme Court. Ten n. R . Ap p. P . 11 (b) . Wh en t hos e si xty d ays passed, and permission to appeal was not sou

ght, this court’s

dismissal of the app

eal became fina

l, making the trial court’s

order a final jud

gment. Tenn. R. Civ . P. 60.02 allows a trial court to set aside a final judg

ment on certain lim

ited grounds, as

follows:
(1 ) mist ake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretoforeden ominated intrinsic or extrinsic), misrepresenta tion, or other misconduct of an ad vers e par ty; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed
or otherwise vaca

ted, or it is no long

er equit ab le that a judgment should have prospective application; or (5) any other reason justify ing relief from

the operation of the judgment. . . .

Tenn. R. Civ. P. 60.02. Althou gh not e xplicitly state

d, Mr. White’s arg

ument rests on the f

ourth ground, that the judgment should be set aside because “

a prior judgment

upon which it

is based has been reversed or otherwise vacated.”

Tennessee cases interpre

tin g Rule 60. 02(4) are few. However, this court in Continental Cheshire Assocs. v. AGS Ches hire Assocs. , 1986 WL 14444 (Tenn. Ct. App. Dec. 22, 1986) (no Tenn. R. App. P. 11 application filed), was faced with a situation in which a prior lawsuit had been dismissed as to certain defendants for lack of in personam jurisdiction. That dismissal was upheld by this court, and the Supre me Cour t denied review. 1986 WL 14444 at * 1. After the Supre me Courtissued a subsequent opinion in an unrelated case regarding in personam jurisdiction, intervenors i n the earlier case filed a Rule 60.02(4) motion, seeking to have the final judgment previously

entered set aside, the ef

fect of which wou

ld be to reinstate t

heir counterclaim against the defendants. Id. The trial court denied the Rule 60.02(4) motion, and this court affirmed, relying on federal case law interpreting Fed. R. Civ. P. 60(b)(5), which contains language identical to that of Tenn. R. Civ. P. 60.02(4). We noted: Litigation must end some time, and the fact that a c ourt may hav

e made a mistake in the law when entering a judgment, or that there may have been a judicial change in the court’s view of the law after its entry, does not justify setting it aside.

1986 WL 14444 at *4 (quoting Collins v. City of W ichita , 254 F.2d

837, 839 (1 0th Cir. 19

58)). We further noted that relief

from judgment on grounds that “a prior judgment upon which it is based has been reversed

or otherwise vac

ated” was only

available in

situations where the present judgment is based on the prior judgment in the sense of
res judicata

or collateral estoppel. Rule 60(b)(5) does not apply where a case relied
on as precedent by the court in rendering the pre sent judgment has since been reversed.-4-

Id. at * 3 (quoting Wallace Clark & Co. v. Acheson Industries, Inc., 394 F. Supp. 393, 395 n. 4 (S.D.N.Y. 1975)). More recent federal cases have follow ed the same r easoning. See Dowell v. State FarmFire & Casualty Automobile Ins. Co. , 993 F.2d 46, 48 (4th Cir. 1 993) (“a deci sional chan ge in the law sub sequent to the issua nce of a final jud

gment, especia

lly, as here

, where the ear

lie r judgment is neither res judicata nor provides collateral estoppel, does not provide a suffic

ient basis for vacating the judgment under Rule 60(b)(5)”); Bailey v. Ryan Stevedoring Co., Inc. , 894 F.2d 157, 160 (5th Cir. 1990) (“

A change in dec

isional law after

entry of jud

gme nt does not constitute exceptional circumstances and is not alone grounds for relief from a final judgment.”).

Mr. White could have appealed this court’s dismissal to the S upre me Court, as did the plai ntiff in Goodwin , but he did not. We find no abuse of discr

etion in the denial

of the Rule 60.02(4) motion, and affirm the trial court. This cause is remanded for such further proceedings a s may be necessary

. Costs are taxed to

the appellant, Frankie L. White, for which execution may issue if n eces sar y.

___________________________________ PATRICIA J. COTTRELL, JUDGE