IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

MICHAEL J. STEGMAN, ) C/A NO. 03A01-9902-CH-00076

FILED

October 13, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

)

Plaintiff-Appellee, )

)

)

)

v. ) APPEAL AS OF RIGHT FROM THE 

) SEVIER COUNTY CHANCERY COURT

)

)

RODNEY MILLS, d/b/a ROD’S )

TOWING & RECOVERY, )

) HONORABLE TELFORD E. FORGETY,

JR.,

Defendant-Appellant.) CHANCELLOR

For Appellant For Appellee

 

JOSEPH P. STAPLETON SCOTT D. HALL

Brabson, Yates & Hamilton Sevierville, Tennessee

Sevierville, Tennessee

(On Brief)

DOUGLAS S. YATES

Sevierville, Tennessee

(Oral Argument)

O P I N I O N

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AFFIRMED AND REMANDED Susano, J.

This case involves a petition filed by Michael J.

Stegman (“Stegman”) seeking to register1 an Ohio judgment

against Rodney Mills, doing business as Rod’s Towing &

Recovery (“Mills”). The trial court entered an order “

recognizing” the judgment. Thereafter, Mills filed a motion

for relief pursuant to Rule 60.02, Tenn.R.Civ.P., which the

trial court denied. Mills appeals, arguing that the trial

court abused its discretion in denying his Rule 60.02 motion.

I.

On April 8, 1998, Stegman obtained a default

judgment in the amount $3,850.50 against Mills in Clermont

County, Ohio, Court of Common Pleas. On August 25, 1998,

Stegman filed a petition in Chancery Court seeking to

domesticate his judgment. Mills acknowledges that he was

served with process in the registration proceeding on

September 28, 1998. He further acknowledges that he did not

file an answer or otherwise respond to the petition during the

following 30 days. During the same period, Stegman filed a

motion to modify the style of the action so as to include a

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number of aliases for the defendant, which motion was granted

by the trial court on October 9, 1999. In the order, the

trial court further decreed “that thirty (30) days after

September 28, 1998, execution may issue in this action against

the named Defendant under the names Rodney Mills, and/or

Rodger Mills, and/or Rod Mills.” Mills was served with a copy

of this order sometime within 30 days of the date of service

of the original process.

After thirty days had elapsed from the date of

service of original process, the trial court entered an order

recognizing the foreign judgment and directing execution to

immediately issue. Stegman next filed a motion requesting an

award of attorney’s fees and costs incurred as a result of

Mills’ failure to attend a November, 1998, deposition for

which Mills had been subpoenaed. Along with this motion,

Stegman filed a notice informing Mills that a hearing on this

motion was scheduled for December 11, 1998. Both the notice

and the motion were served upon Mills; however, he made no

appearance at the subsequent hearing. The trial court awarded

Stegman $440 in attorney’s fees and costs. 

On December 16, 1998, Mills, represented by counsel,

filed a Rule 60.02 motion to set aside the trial court’s order

recognizing the foreign judgment. In an accompanying

affidavit, Mills asserts that he is “a working class man with

no formal education and was unfamiliar with the nature of the

proceeding brought against him in the Sevier County Courts.”

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Further, Mills states that given his limited means, he had

been unable to obtain legal counsel within 30 days of service

of the petition to register the foreign judgment. Finally,

Mills asserts that he has “a good defense” to the registration

of the Ohio judgment in that Ohio lacked jurisdiction over

him. The trial court denied Mills’ motion, reasoning that

Mills “had ample opportunity to defend the Judgment at issue”

and that the relief requested pursuant to Rule 60.02 was not

justified. This appeal followed.

II.

The setting aside of a judgment pursuant to Rule

60.02, Tenn.R.Civ.P. is within the sound discretion of the

trial court; thus, we review a trial court’s denial of a Rule

60.02 motion for an abuse of discretion. Underwood v. Zurich

Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Toney v. Mueller Co.,

810 S.W.2d 145, 147 (Tenn. 1991); Henderson v. Kirby, 944

S.W.2d 602, 605 (Tenn.App. 1996).

III.

A foreign judgment filed for registration in a court

of this state in accordance with T.C.A. § 26-6-104 “has the

same effect and is subject to the same procedures, defenses

and proceedings for reopening, vacating, or staying as a

judgment of a court of record of this state and may be

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enforced or satisfied in like manner.” T.C.A. § 26-6-104 (c)

(1980). “Thus, the grounds and procedures for vacating or

reopening foreign judgments are those contained in

Tenn.R.Civ.P. 60.02.” Biogen Distributors, Inc. v. Tanner,

842 S.W.2d 253, 256 (Tenn.App. 1992). Rule 60.02 provides, in

pertinent part, as follows:

On motion and upon such terms as are just,

the court may relieve a party or the party’

s legal representative from a final

judgment,

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order or proceeding for the following

reasons: (1) mistake, inadvertence,

surprise or excusable neglect.... 

Rule 60.02, Tenn.R.Civ.P. “As a prerequisite to the

extraordinary relief available under Rule 60.02(1), the movant

is required to set forth in a motion, petition or supporting

affidavits, facts explaining why movant was justified in

failing to avoid mistake, inadvertence, surprise or neglect.”

Bivins v. Hospital Corp. of America, 910 S.W.2d 441, 446

(Tenn.App. 1995).

IV.

In an affidavit supporting his motion, Mills states

that he is an uneducated man who did not understand the nature

of the proceedings against him. On appeal, he argues that

these circumstances constitute excusable neglect, thereby

entitling him to relief under Rule 60.02, Tenn.R.Civ.P. We

cannot agree with this contention. “If this Court were to

hold that ignorance of the law is a proper ground for relief

under Rule 60.02, Tennessee Rules of Civil Procedure, it is

hard to conceive how any judgment could be safe from assault

on that ground.” Food Lion, Inc. v. Washington County Beer

Bd., 700 S.W.2d 893, 896 (Tenn. 1985). 

Mills also asserts that he is of limited means and

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could not obtain counsel within 30 days of service of process

on him. Mills cites no authority, and we are not aware of

any, holding that the temporary inability to hire counsel

constitutes excusable neglect. Mills had the opportunity to

respond to the plaintiff’s petition, and could have done so

without the assistance of counsel. If, as Mills suggests, he

was of limited means only for the 30 days after the petition

was served on him, he could have asked for additional time to

respond while he sought the assistance of counsel. While it

is understandable that Mills may have been uncertain as to how

to proceed, we cannot find that this uncertainty excuses his

utter failure to respond to the action filed against him. See 

Food Lion, Inc., 700 S.W.2d at 896 (finding attorney’s

uncertainty as to how to proceed does not constitute excusable

neglect).

Mills contends that if the trial court had granted

his Rule 60.02 motion, he could have established that the Ohio

judgment is not entitled to full faith and credit because, as

of the date of that judgment, the State of Ohio lacked

personal jurisdiction over him. Because we find that Mills

did not demonstrate excusable neglect sufficient to warrant

relief under Rule 60.02, we will not address the merits of his

claimed defense to the Ohio judgment. We presume, absent

proper proof to the contrary, that the judgment of the Ohio

court in this case is valid. See Four Seasons Gardening &

Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 441-42 (Tenn.App.

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1984).

V.

Accordingly, the judgment of the trial court is in

all respects affirmed. Costs on appeal are taxed to the

appellant. This case is remanded to the trial court for the

enforcement of the judgment and collection of costs assessed

below, all pursuant to applicable law.

_________________________

Charles D. Susano, Jr., J.

CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

Herschel P. Franks, J.

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