# FILED
June 27, 1997 Cecil V. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE

JAMES THIGPEN, ) ) Plaintiff /Appella nt, ) Rutherford Circuit No. 27349

) vs. ) ) FIRST CITY BANK, ) Appeal No. 01A01-9603-CV-00095 ) Defendant/Appellee. )

APPEAL FROM THE CI RCUIT COURT OF RUTHERFORD COUNTY AT MURFREESBORO, TENNESSEE

THE HONORABLE D ON R. ASH, JUDGE For the Plaintiff/Appellant : For the Defendant/Appellee : Gregory L. Cashion David B. Scott Carol R. Connor Nashville, Tennessee Nashville, Tennessee

AFFI RMED

HOL LY KI RBY LI LL ARD , J.

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

AL AN E . HI GHE RS, J

.1 Thigpen styled the motion as a Motion to Set Aside Agreed Order. In the motion,

Thigpen stated that he “did not agree to the entry of the summary judgment which wa s represented by his attorney, Phillip Davidson.” However, there was no agreed order of judgment; summary judgment was granted by default due to Thigpen’s failure to respond. OPINION This case is an appeal of the trial court’s denial of a Rule 60.02 motion to set aside an order of summar

y judgment . We aff

irm the de cision of

the trial court. In 1986, Appellant James Thigpen (“Thigpen”) entere d into a partne rship with

Sam Neely (“Neely”) to build single-family residences. Neely wa s to obtain financing and sell the completed homes, while

Thigpen was responsible for constructing them. They began developing the Haynes Havens Estates in Murfreesboro, Tennessee. Nee ly purchased lot 32 in Section 1 of Haynes Havens Estates, and Thigpen began building on it. Subsequently, Thigpen sued Neely for dissolution of the partnership, a formal accounting, and damages for Neeley’s alleged br each of the partnership. He also filed a notice of lien lis pendens on lot 32. In January 1987, Neely se cured a personal line of credit with Appellee First City Bank (“Bank”) by giving it a deed of trust on lot 32. Later that year, the Bank foreclosed on the deed of trust, capitali zing on Th

igpen’s equity in

the improv ements to

the lot. Th

e Bank sub sequentl

y sold the property. In 1990, Thigpen sued the Bank, alleging it had breached its fiduciary duty to Thigpen, had induced Neely to breach the partnership a greement, and

had caused Thigpen

to lose his legal or equitabl e interest

in lot 32. On

January 12, 1995, t

he Bank mo ved for s u mma ry judgment. A hearing on the summary judgment motion was set

for March 3, 1995, but Thigpen was granted an extension of time to gather additional evidence. Thigpen’s counsel, Phillip Davidson (“Davidson”), concluded

he could n ot raise a

genuine i ssue of ma

teria l f act. Da vidson sai d that he m

et with Thigpen and told him it was his opinion t hat T higpen did not have evidence to create a disputed material fact, and that filing a response that said otherwise could violate Rule 11 (of theTennessee Rules of Civil Procedure). Consequently, after talking with Thigpen, D avidson did not file a response to the motion for summary judgment and did not appear for the hearing on the motion. On March 31, 1995, the trial court granted the Bank’s summary judgment motion. Thigpen subsequently retained new coun s el. On April 28, 1995, he filed a motion to set aside the summary judgment, pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, on the grounds that Davidson had allegedly acted without Thigpen’s agree m ent. 1 Thigpen’s accompanying affidavit made the same allegation. On June 21 , 1995, Th igpen finally filed a2 The original complaint alluded to the lien lis pendens, but it was not argued in connection with the Bank’s summary judgment motion. Davidson testified in his deposition that, at the time, he d id not belie

ve the lie n lis pende

ns to be sig nifican

t. 2 “response” to the Bank’s mot ion for su mmary judg ment and r

aised the issue of th

e lien lis pendens

as constructive notice to the Bank of Thigpe

n’s inter est in lot 32. 2 A hearing was held on June 30, 1995, and the tri al court or dered th at Davids on’s depo sition be ta ken. Dav idson testi fied in his deposition that he had kept Thigpen informed of the progress of the case, and had told Thigpen that there was not s ufficient evidence to create any ge nuine issues of material fact and that filing a response to the Bank’ s motion tha

t said othe

rwise co uld violate

Rule 11. Davidson testified that he told Thigpen of his decision not to respond to the motion or appear at the hearing thereon. On December 8, 1995, the trial court denied Thi gpen’s motion to set aside the summary judgment: In this case, Mr. Thigpen a nd his counsel, Mr. Davidson, had this matter continued at least once in order to file a response. Based upon the deposition of Mr. Davidson, Mr. Thigpen knew early on of Mr. Davidson’s reluctance to oppose the Defendant’s motion. The Court fin ds specifically that the Plaintiff has not shown adequa te reason f

or his fa ilure to ta ke appro priate a nd adequ ate act

ion, ther efore h is request to set aside the Court’s Order granting summary judgment is denied. From this de cision Thi gpen now a ppeals. On appeal, Thigpen argues that he raised a ge nuine issue of

material fact in his June 21, 1995 “response” to the Bank’s summary judgment motion. He contends that there was a mistake on the part of Thigpe n’s prior coun sel, Davidson, which should have justified affording Thigpen relief from the summary judgment motion. He argues that his Rule 60.02 m otion should have been granted because the judgment he sought to have set aside wa s a defa

ult judgment. In the alternative, Thigpen

con tends that the trial court should have treated his Rule 60.02 motion as a Rule 59.04 motion t o alter or amenda judgment, since his motion was filed before the order of summary judgment b ecame final. Rule 60.02

states: On motion a

nd upon suc

h terms as are just, the court mayrelieve a party or the p ar ty’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an ad

verse pa rty; (3) the judgment is void; (4) the judgment has been satisfied, releas ed or disc harged, or a prio

r judgmen

t upon whic

h it is based has been revers ed or othe

rwise va cated, o r it is no lo nger equitable that a judgment should have prospective application ; or (5) any other reason justifying relief from the operati on of the j udgment. T he motion s hall be made within a reasonable time,3

and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. Tenn. R. Civ. P. 60. 02. Rule 60 .02 is appr opriate for a pa rty who seek s relief

from a judgment that has become final. In this case, the order of summary judgment in fa vor of the Bank ha d not yet become final. Rule 59.04 provides “[a] motionto al ter or amend a judgment shall be filed and served within thirty (30) days after the entry of

the judgment.” Tenn. R. Civ. P. 59.04. Therefore, Rule 59.04

is approp riate fo r a part y seeking relief f rom a judg ment that i s not yet f inal: The function of this Rule [6 0.02] is to give r elief fr om final judgments; Rule 59, pro viding for motion

for new trial, is th

e approp riate re medy for assertin g all ege d errors affec ting a judg ment which has not ye t become final. Campbell v. Archer , 555 S.W.2d 110, 112 (Tenn. 1977). In Tennessee, “courts look to the substance of a motion, not its title.” Parker v. Vanderbilt Univ. , 767 S.W.2d 412, 421 n.1 (Tenn. App. 1988); Henson v. Diehl Machs., Inc. , 674 S.W.2d 307, 310 (Tenn. App. 1984) (Although defendant moved to set aside

default judgment u

nder Rule 55.02, sin ce the mo tion was f iled bef ore judgm

ent beca me final, the motion “should

be deemed a motion for a new trial under Tenn. R. Civ. P. 59 which can

a fford relief from a judgment because of mistake, inadver tence, surprise or excusable neg lect.”)

. Consequently, it would have been appropriate for the trial court to treat Thigpen’s Rule 60.02 motion as a Rule 5 9.04 motion

to alter o r amend t he judgme

nt. Generally, a motion for

recon siderati on of the g

ranting o f a summar

y judgment

motion is “looked upon with favor” if, prior to the judgment becoming final, the plaintiff can produce material facts which are in dispute. Schaefer by Schaefer v. Larsen , 688 S.W.2d 430, 433-34 (Tenn. App. 1984) (“. . . the par

ty [seek ing reco nsidera

tion] is only seeking that which he is basically entitled to - a first trial.”) In this case, the Bank argues that Thigpen did not raise any disputed issues of materialfact prior to the judgment becoming final. Indeed, Thigpen’s motion and his ac companyi n g affida vit maintain only that Davidson acted without Thigpen ’ s permission in allowing the summary judgment motion to proceed uncontested, an al lega tion which does not address the basis for the Bank’s summary judgment motion. Thigpen’s motion to set aside the judgment does not allude to the lien lis pendens. Thigpen states that

he raised a genuine issue of material fact in his “response” to the Bank’s summary judgment motion, filed June 21, 1995. In the June 21, 1995 pleading, Thigpen argued that4

the lien lis pendens gave the Bank notic e of Thigp en’s inte rest in lot 32 prior t o its acceptance of the deedof trust to the property. However, this was not raised in Thigpen ’s Rule 60. 02 motion to set aside the summar

y judgment . Rather, it was ra ised in his “response” to the Bank’s summary judgmentmotion, filed almost three months after the grant of summary judgment. Subsequently, Thigpen filed pleadings regarding his Rule 60.02 motion which assert the lien lis pendens as establishing a disputed issue of material fact. The gist of Thigpen’s argument, then, is (1 ) Thigpen had no knowledge of Davidson’s decision not to cont

e st the Bank’s summary judgment motion, and (2) regardless of Thigpen’s knowledge, Davidson made a mistake in overlooking the fact that the lien lis pendens gave the Bank constructive notic e and cr eated a disputed i ssue of ma

terial f act. Although Thigpen asserted that he did not give Davidson “permission” to “enter an agreed order” enterin g summary judgment, Davidson

testified in h is deposition that he kept Thigpen apprisedof the progress of t he ca se. Davidson stated that he met with Thigpen and told him that they did not have sufficient evidence to create a genuine issue of material fact , and that f iling a response to the summary judgment motion that asserted that a disputed material fact existed might violate Rule 11. Davidson testified that he sp ecifica lly told Thig

pen of hisdecision not to respond to the motion or appear

at the hearing on the motion. The refore , the tria

l court ha d ample r eason to conclude that Thigpen had full knowledge of Davidson’s decision n ot to r espond to the summary judgment motion. Thigpen’s second issue, that Davidson mistake nly faile d to assert the lien lis pendens as creating a disputed material fact, clearly was not raised until well af ter the order of summa

ry judgm ent be came fin al. Howe ver, eve n if David son’s alle ged mistak e of law w ere con sidered , it would not be suf

ficient b asis to re

verse th e trial c ourt’s de

nial of Th igpen’s m otion to set aside the judgment, under Rul e 60.02 or Rule 59.04 . Under Ru

le 60.02, mist

akes of l aw are

not a basi s for relief. Food Lion, Inc. v. Washington County Beer Bd. , 700 S.W.2d 893, 896 (Tenn. 1985) (“If this Court were to hold that ignorance of the law is a proper gr ound for relief under Rule 60.02, Tennessee Rules of Civil Procedure, it is hard to conceive how any judgment could be safe fr om assault on that grou

nd.”); Algee v. State Farm Gen. Ins. Co. , 890 S.W.2d 445, 448-49 (Tenn. App. 1994) (plaintiffs ’ v oluntary nonsuit, taken because of mistake of law, not type of mistake contemplatedby Rule 60. 02(1)); Kilby v. Sivley , 745 S.W.2d 284, 287 (Tenn. A pp. 1987) (“The5

mere fact tha

t a lawyer is ignorant of the rules or mistakenly reads the rules is not within itself reason to invoke Rule 60.02(1), Tenn. R. Civ. P.”). Likewise, a Rule 59.04 motion to alter or amendthe judgme nt cannot be used a s a vehic le to assert legal arguments that could have been asserted

prior to the grant of summary judgment. In Concordia College Corp. v. W. R. Grace & Co. , 999 F.2d 326 (8th Cir. 1993), cert. denied , 114 S. Ct. 926, 127 L. Ed. 2d 218 ( 1994), summary judg ment was g ranted i n favor of the defendants, based

on the statute of limitations. Shortly afterward, the plaintiff filed a motio n to alter or amend the judgment, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, asserting inter alia that the statute of

limitationswas to lled because the defendants allegedly committed fra ud. The trial court decline d to consid

er this ar gument be cause th

e plaintif f failed to raise it during the pendency of the summary judgment motion; it was raised for the first time in the plaintiff’s Rule 59(e) motion. The plaintiff’s motion to alter or amend the judgment was denied, and the appellate cour taffirmed the denial of the motion: “A motion to alter or amend judgment cannot be used to ra ise argumen

ts which c ould have been raised

prior to the issuance of judgment.” . . . [Plaintiff] could not use a Rule 59(e) motion “to introduce new evidence that could have been adduced during pendency of the su mmary judgmen t motion. . . . Nor should a motion for reconsiderationserve as the occasion to tender new lega l theories for

the first time.”

. . . The District Court did not abuse its broad discretion in concluding that [the plaintiff] was impro

perly at temptin g to rai se, via a motion to alter or amend, argum ents that it could have raised in response to [the defendant’s] motion for summary ju dgment. Concordia , 999 F.2d at 330) (quoting Hagerman v. Yukon Energy Corp. , 839 F.2d 407, 414 (8th Cir.), cert. denied , 488 U.S. 820, 109 S. Ct. 63, 102 L. Ed. 2d 40 (1988)) (citations to cases quoted in Hagerman omitted). Genera lly, a clie nt is acc ountable

for the acts and omissions of his attorney. Pioneer Investme nt Servs. v

. Brunswick Assocs. , 507 U.S. 380, 396, 113 S.Ct. 1489, 1499, 123 L. Ed. 2d 74 ( 1993). C onsequently, even if Davidson made a mistake in failing to assert during the pendency of the summary judgment motion that the lien l is pendens created a material factual dispute (an issue we do not reach), the trial court did not err in dec lining to set aside the judgment under Rule 60.02 or Rule 59.04. Thigp en contends that his Rule 60.02 motion should have been granted becaus e a mor e liberal standard is used in determining whether or not to set aside a default judgment

. See Tennessee Dept. of Human Servs. v. Barbee , 689 S.W.2d 863, 867 ( Tenn. 198 5) (“Rule 60 is const

rued with liberality to afford

relief from a de

fault judg ment.”) ; Nelson v. Simpson , 826 S.W.2d 483, 485-866

(Tenn. App. 1991) (“Trial courts should grant rel ief whene ver any r easonab le doubt e

xists concerning whether the default judgment should be set aside.”). However, in this case, the trial court had reason t

o conclud e that the failure to respond to the motion for summary judgment or appear at the hearing was willful, the result of a dec ision by Davidson, with Thigpen’s knowledge. See Barbee , 689 S.W.2d

at 866; Nelson , 826 S.W.2d at 485 (court may consider whether the movant’s default was willf ul). The s etti ng aside of a default judgment lies within the discretion of the trial court. See Barbee , 689 S.W.2 d at 866; Nelson , 826 S.W.2d at 485. In this case, there was no abuse of discr etion by the trial c ourt. The decision of

the trial court is affirmed. Costs are assessed against Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P.J., W.S.

ALAN E. HIGHERS, J.