1

Although the original complaint seems to have had multiple plaintiffs, only Mr. White, a pro se litigant, signed

the Rule 60 .02 motio n. We sha ll, therefore, refer to him as the only p laintiff. 

2

The dismissed co mplaint is not p art of the reco rd before this court, but the a ppellees’ statement of the case

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 December 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

Court reversed a decision 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

PATRICIA J.COTTRELL,J., delivered the opinion of the court, in which BEN H.CANTRELL,P.J.,M.S.,

and WILLIAM C. KOCH, JR., J., joined.

Frankie L. White, Wartburg, Tennessee, Pro Se.

Robert F. Hazard, Tullahoma, Tennessee, for the Appellees, Ronnie L. Gault Pamela Freeman.

OPINION

This appeal is the plaintiff’s1

 effort to resuscitate a dismissed complaint.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 previous order dismissing his complaint for failure to prosecute. In his

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 that the Coffee County Clerk’s record showed the notice was not

received until June 24, 1999, thirty-one days after the court dismissed his complaint; 3) this court

dismissed the appeal, citing Goodwin v. Hendersonville Police Dep’t, No. 01A01-9509-CH-00423
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(Tenn. Ct. App. Sept. 17, 1997), because the notice was not timely filed; 4) this court issued its

mandate to the trial court based on Goodwin; and 5) on October 18, 1999 the Tennessee Supreme

Court reversed Goodwin. 

In support of his Rule 60.02 motion, the plaintiff submitted a memorandum setting out the

above mentioned facts and noting the similarity between his own case and Goodwin, in which an

incarcerated pro se litigant had delivered his notice of appeal to the appropriate person at the

correctional facility within the allowed time. The Supreme Court stated, “[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 reasons, your plaintiff respectfully requests this court

vacate its previous order of May 24, 1999, and reinstate said order as of the entry of the court’s

order.” 

Although not directly stated in the motion, the plaintiff is candid 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 denied his motion and the plaintiff appeals.

A party seeking relief under Rule 60.02 bears a heavy burden. As, this court has previously

stated: 

 [R]elief under Rule 60.02 is considered "an exceptional 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 competing principles of finality and justice." Jerkins v.

McKinney, 533 S.W.2d 275, 280 (Tenn.1976). Rule 60.02 operates as "an escape

valve from possible inequity that might otherwise arise from the unrelenting

imposition of the principle of finality imbedded in our procedural rules." Thompson

v. Fireman's Fund Ins. Co., 871 S.W.2d 157, 159 (Tenn.1990). 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 (Tenn.1991) (quoting Toney v. Mueller Co.,

810 S.W.2d 145, 146 (Tenn.1991)).

To set aside a judgment under 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 relief 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 judge abused his discretion. See Toney v. Mueller Co., 810 S.W.2d

145 (Tenn.1991); Travis v. City of Murfreesboro, 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).
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When this court entered its order dismissing the plaintiff’s appeal, the plaintiff had sixty days

to seek permission to appeal to the Supreme Court. Tenn. R. App. P. 11(b). When those sixty days

passed, and permission to appeal was not sought, this court’s dismissal of the appeal became final,

making the trial court’s order a final judgment. Tenn. R. Civ. P. 60.02 allows a trial court to set

aside a final judgment on certain limited grounds, as follows:

(1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether

heretofore denominated intrinsicor extrinsic),misrepresentation, or other misconduct

of an adverse party; (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 vacated, or it is no longer equitable that a judgment should have

prospective application; or (5) any other reason justifying relief from the operation

of the judgment. . . .

Tenn. R. Civ. P. 60.02. Although not explicitly stated, Mr. White’s argument rests on the fourth

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 interpreting Rule 60.02(4) are few. However, this court in Continental

Cheshire Assocs. v. AGS Cheshire 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 Supreme Court denied review. 1986 WL 14444 at *1. After the Supreme

Court issued a subsequent opinion in an unrelated case regarding in personam jurisdiction,

intervenors in the earlier case filed a Rule 60.02(4) motion, seeking to have the final judgment

previously entered set aside, the effect of which would be to reinstate their 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 court may have 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 Wichita, 254 F.2d 837, 839 (10th Cir. 1958)). We

further noted that relief from judgment on grounds that “a prior judgment upon which it is based has

been reversed or otherwise vacated” 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 present judgment has since been

reversed.
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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 followed the same reasoning. See Dowell v. State

Farm Fire & Casualty Automobile Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (“a decisional change

in the law subsequent to the issuance of a final judgment, especially, as here, where the earlier

judgment is neither res judicata nor provides collateral estoppel, does not provide a sufficient 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 decisional law after entry of judgment 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 Supreme Court, as did the

plaintiff in Goodwin, but he did not. We find no abuse of discretion in the denial of the Rule

60.02(4) motion, and affirm the trial court. This cause is remanded for such further proceedings as

may be necessary. Costs are taxed to the appellant, Frankie L. White, for which execution may issue

if necessary.

___________________________________ 

PATRICIA J. COTTRELL, JUDGE