# FILED Jan. 9, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) EASTERA BELL P

ORTER, Indivi dually ) Shelby County Circuit Court And as Surviving Spouse and Next ) No. 59360 T.D. Friend of Jasper D. Porter, Dec eased , )

) Plaintiff

/Appella nt. ) ) VS. ) C. A. NO. 02A01-9509-CV-00204 ) JESSE McGEE, M.D. and ) METHODIST HOSP

ITALS OF ) MEMPHIS, INC. , ) ) Defend ants/Appe

llees. )

) AND ) ) MAHFUZUR RAHMAN, M .D. , ) ) Defend ant. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable Robert A. Lanier, Judge

Al H. Thomas , Ira M. Thomas , THOMAS & THOMAS, Memphis, Tennessee Attorney for Plain tiff/App ellant.

Michael L.

Robb , Michael E. Keeney , THOMAS, HENDRIX, HARVEY, JOHNSON & MI TCHELL , Memphis, Tennessee Attorney for D efendant/Appellee Jesse McGee, M.D..
Lucian T. Pera , Renee E. Greer , ARMSTRONG ALL

EN PREWITT GENTRY JOHNSTON & HOL MES, Memphis, Tennessee Attorneys for D efendant/Appellee Methodist Hospitals of Memphis, Inc
. OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. LILLARD, J. : (Concur s) SUMMERS, Sp. J. : (Concur s)1 Suit was al so filed a gainst Dr. Mahfu zur Rahman . A summar y ju dgment w as enter

ed in his favor as well, with which A

ppellant does not ta

ke issue. Although he is not a party to this appeal, actions ta

ken in his d

efense will be re

ferenc ed here

in as nec essary

to give a n accur ate accounting of the facts and as re levant to our decision.
2 Except where specifically noted, dates referenced ar e to the yea

r 1994. The sole issue

in this appeal is whether the trial court abused its discretion in denying the motion filed by Appellant, Eastera Bell Porter, individually and a s sur v iving spous e and

next friendof Jasper

D. Porter , decea sed, unde r Rule 60 T.R.C.P., to set aside the summary judgmen ts
e ntered in favor of

the appe

llees, Jess e McGee , M.D. and Methodist H ospitals of Memphis (Methodist). After review of the record, w e find an absence of abuse by the trial court in this regard and affirm. We set forth our reasons below.

A procedural history

of this matter is in order. On February 2, 1994, Ms. Porter filed
a medical malprac tice ac tion for th e death o f her hus band ag ainst the appellees in the Shelby County Circuit Cou rt. 1 Attorney R. Sadler B ailey repr esented her at this time. Appellees filed the i r respective answers and, thereafter, motions for summary judgme

nt. Dr. Rahman filed a motion “To Dismiss/For

Summary Judgment” and propounded certain discovery reque sts to Appellant on February 24. 2 Methodist submitted discovery requests to Appellant on Apr il 11 and moved fo r summary ju dgm ent on A ugu st 22. In support thereof, it relied upon Appellant’s failure to answer the discovery re

quests. Methodist also moved for an or der fro m the tria

l court deeming itsrequest for admissionsadmitted a

nd to compe

l Appella nt to answer the propounded interrogatories and request for production of docu ments. Dr. McGee filed his motion for summary judgment, and supporting affidavit, on August 30. I n the latter part of

April, Appellant filed a motion requesting that the trial court

admit out-of-state counsel, Richard D. Goldberg, pro ha c vice. On August 18, Mr. Bailey moved to withdraw as counsel.

The record

sh ows that on Se pt em be r 2 3, co un se l f or al l p ar ti es , i nc lu di ng Ba il ey, appearedin Division I

V befor e Judge Sw earengen for a hearing on the var

ious motions . At this time, Judge Swearengen announce d his recusal due to his acquaintance with one of the defendant physicians. The cour

t granted Bailey ’s motion to withdraw and denied the motion for Goldberg’s admittance pro hac vice based on lack of local counse l. Upon Mr. Bailey’ s re quest for a continuance, the court granted Appellant 15 additiona l day s, or until O ctober 1 0, 1994, w ithinwhichto respond t o Methodis t’s discov ery

request s and 30 a

dditio nal days, or until October 30, 1994, within which to file a responsive affidavit(s) to all summary judgment motions. Orders were entered in accordance with the court’s oral r ulings on September 23 and September 30. The latter order set October 28, 1994 a s the hea

ring da te on the r

especti ve motions
.

Counsel for Methodist subsequently notified Appellant, by letter

dated October 10, 1994, that Judge Swearengen was not available to hear Methodist’s motions on October 28 and that t he heari ng was rescheduled for Nove mber 4 at 9:00 a.m. Similar letters were sent Appellant by counsel for Drs. Rahman and McGe e, dated O ctober 1 4 and 19, r especti vely . The re cord als o includes a letter dated November 1, 1994 from counsel for Methodist addressed to “Hon. Robert A. Lanier Circuit Court of Tennessee - Di v. V II.” It indicates counsel’s understanding that Judge L anier would hear the motions on November 4 due to Judge Swearengen’s recusa l. The letter notes an enclosure to Ms. Porter. In similar fashion, counsel for Rahman wr ote Judge Lanier, by letter bearing the same date, acknowledging that the lawsuit “has been transferred to Your H on or’s division from

Division IV” and that Dr. Rahman’s motion was set for hearing on November 4. The letter is addre ssed to “Jud

ge Robe rt A. L anier Di vision VI

I of C ircuit Cou

rt” and indicate s that a copy was sent t

o Appella nt.

After a hearing as scheduled, Judge L anier granted summary

judgmen ts to Appellees and Rahman. The respective orders on the motions reflect Appellant’s failure to comply with the court’s prior or

der impos ing dea

dlines fo r a resp onseto Methodist’s discovery requests and/or filing
a countervailing affidavit(s) responsive to all summary judgment motions; Appellant’s noticing on October 10, 1994 that a hearing on the motions was set for November 4; and App ellant’sfailure to appear in eit her Div is io n IV o r Di vi si on V II for the scheduled hearing. The orde rs also denote the
measures taken to

ensur e Ms. P orter ’s app earance in th e prop er cour t: th e speci al jud ge sitting for Judge Swearengen in Division I V on November 4 was informed o f the case tra nsfer and was requested to sen d Ap pel lan t t o Di vi si on V II if she arrived for the hearing and respective counsel for the defending parties waited in Division IV approximately 20 minutes to an hour after thescheduled hearing time in the event of Appellant’s appea rance there. The orders we re entered onNovember 8 and 9. On November 8, the order signed by Judge Swearengen transfer ring the case to Division VII was entered. The

record establishes that counsel for Appellees served Appellant with copies ofthese orders on November 8.
Appellant filed her Rule 60 moti on to set a side and t he affi davit of Ca

lvin Williams , Court Cler

k of Divisi on V, on Ma

rch 16, 1 995. The a

ffidavit states:

On Novembe

r 4, 1994, Mrs. East

era Po rterand Reverend Willie Evans II

appeared in Division 5 for theM otion Docket. I approached

them and inquired as to w ha t case they were wa iting to be called. They

showed me the style a

nd said they had bee

n informed the case ha

d been tr ansfer red to Div

ision 5 and

that a Motion for Summary Judgment was to be heard that date. I checked our docket and informed them that it was not on the docket and that the attorney involved would send them another notice of setting. I thought they
were in the right division but the motion was not put on the docket as the attorne

y ha d origin ally

planned t o do. I did not sug gest

that other divisions should be checked.

In denying

the motion, the trial court reasoned, in part, that even at the hearing on the Rule 60 motion, Appellant had “not to [that] very minute filed any sort of affidavit or thing showing they have a good

cause of action.” The court continued, “I just think it would be an injustice to let thembenefit

from thei r own wro ngdoing

in this regard . . . . [Appella nt] would be

more fa vorably disposed had they done w hat they wer

e supposed to do, but they haven’t done it . . . . .” The court’s order deny

ing the motion was entered on June 21, 1995.

As heretof

ore note d, our sco

pe of review in thi s matter i s l imited to determining whether the trial court abused its discretion in deny ing Appellant’s requested relief under Rule 60.02 T.R.C.P. Banks v. Dement Constr. Co. , 817 S.W.2d 1 6, 18 (Te nn. 1991) . It r

eads as f ollows, as here pe rtinent:3 Although Appellant’s motion to set aside reads that it is filed pursuant to Rule 60.02(1)

and (2), her argument on appe al is addressed solely to the pr ovisions of subsection (1). On mot i on and upon such terms as are just, the court may relieve a party

or the pa

rty ’ s legal representative from a f inal judgmen t, order or proceeding for the following reasons: (1) mistake, inadver tence, s urprise

or excusa

ble neglect; 3

To set aside a judgment under the Rule, the burden is upon the moving party

to prove he is entitled to such relief, and there must be proof of the basis on which relief is sought. Banks , 817 S.W.2d at 18. The court in Banks recog nized:

Rule 60.02 “wa s design

ed to strike a proper balance betwee n the c ompeting principles of finality and justice.” Jerkins v. McKin ney , 533 S.W.2d 275, 280 (Tenn. 1976). With regard to th e purpose of the rule, this Court recently stated, “Rule 60.02 ac ts as an escape valve from possible inequity that might otherwise arise from

the unrelenting imposition o f the prin ciple of finality imbedded in our proc ed ural rules.” Thompson v. Fireman’s Fund Ins. Co. , 798 S.W.2d 235, 238 (Tenn.1990). Becau se o f the impor tance of this “principle of finality,”

the “escape valve” should not be easily opened. Toney v. Mueller Co. , 810 S.W.2d at 146.

Id
.

It

is contended

that the provisions of Rule 60.02(1) apply to af ford relief to Appellant from the summary judgments entered in this matter. Ms. Porter asserts that her appeara nce in the wrong court division on the day of the sc heduled hearing and her inability to discern the timelines s of acting upon the November 8 orders g ranting summary

judgment, which she re ceived accompanied by an order transferring the

“pending” motions to Division VII for disposal, constitutes mistake and excusable neglect under the Rule. I f these were the only

facts before us, we might be inc lined to agree, though w e believ e it apparent that Ms. Porter could have easily checked with Division IV on November

4, eith er before or af

ter appearing in Division V, to confirm the correct locale of the hearing since there was obviously confusion in this regard. Co nsidera bly more impor

tant to this Court, however, is the fact that at no time during the course of this act ion did App ellant pr operlyrespondto the summary judgme nt motions, either before or after th e court’ s order imposing t ime limits for a response, until she filed a notice of appeal from the judgment now bef ore us for review
on July 21, 1995. Granted, Ms. Porter was without couns el after September 23 and when the September

30 order establishing the deadlines for respon ding wa s entere d. It w as noneth eless incumbent

upon her to comply with the court’s order with or without counsel. There was sufficient time to retain counsel, if sh e so desired, who could have requested a c ontinuance for purposes of compliance. Based on these facts, we d ecline to

hold that th

e trial c ourt abus ed its disc retion in denying Appellant the relief sought under Rule 60.02(1).

The judgment of the trial court is affirmed. Costs are assessed to t he appellant, Ea st er a B el l P or te r, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

________________________________ FAR MER , J.

______________________________ LI LL ARD, J. (Conc

urs)

______________________________ SUMMERS, Sp. J. ( Concurs)

# FILED
Jan. 31, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) EASTERA BELL P

ORTER, Indivi dually ) Shelby County Circuit Court And as Surviving Spouse and Next ) No. 59360 T.D. Friend of Jasper D. Porter, Dec eased , )

) Plaintiff

/Appella nt. ) ) VS. ) C. A. NO. 02A01-9509-CV-00204 ) JESSE McGEE, M.D. and ) METHODIST HOSP

ITALS OF ) MEMPHIS, INC. , ) ) Defend ants/Appe

llees. )

) AND ) ) MAHFUZUR RAHMAN, M .D. , ) ) Defend ant. ) )

_____________________________________________________________________________ ORDER

_____________________________________________________________________________

Appellant has filed a petition for rehearing in this cause which, after having been duly considered, is denied.

Enter this ____ day of January , 1997.

______________________________________ FAR MER , J.

_____________________________________ LI LL ARD , J.

_____________________________________ SUM MER S, Sp . J.