1 We note that Tammy M offett Battles has subseque ntly remarri ed and is n ow known as Tammy Battl es Rickman. For th e sake of clarity, in this o pinio n we w ill refer to Ms. Rickm an and M r. Ba ttles collec tively as “B attles,” and to M s. Rickm an ind ividua lly as “T amm y Ba ttles.”



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON October 16, 2002 Se ssion JACKIE L. REYNOLDS, ET AL 

### . v. TAMMY MOFFETT BATTLES, ET AL 

### .

Direct Appeal from the Circuit Court for Hardin County No. 3194 C. Creed McGinley, Judge

No. W2002-00031-COA-R3-CV - Filed January 9, 2003

This is an appe al from on order de nying a Te

nn. R. Civ. P. 60 .02 motion t o set asid e a defa ult judgment entered in favor of the

plaintiffs for $1,200,000. We vacate the order of the trial court and remand f or further proc eeding s. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Vacat ed; and Remanded
D AV ID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K. L ILLARD , J., joined.
David W. Camp, Jackson, Tennessee, for the appella nts, Tammy

Moffett B attles and Greg ory Scott Battles

. Mark L. Agee a

nd Jason C. Scott, Trenton, Tennessee, for the appellees, Jackie L . Reynolds an d Audrey Jeannine Re

yno lds. OPINION This is the second appearance of this ca se b efo re t hi s C our t. In Au gus t o f 19 99, Ja cki e L. Reynolds and Audrey

Jeannine Reynolds (“the Rey nolds”) filed suit against Tammy Moffett Battles and Grego

ry Scott Ba ttles (“t he Battl e s”) 1 for damages suffered a s the result of, inter alia , defamation, falseim prisonme

nt, tresp ass to pro

perty , trespa ss to chat

tels, assa ult, and in

tentiona l inflictio n o f emotional distress. The trial court dismissed the original claim against the B attles on the basis of the statute of limitati ons and fa

ilure to st ate a cl aim. The Reynolds appealed and this Court reversed and remanded fo r a trial on the merits. In our order of r emand, we stated that the appellees should be allowedto file an answer

so that the

case co uld be conducted to

a conclusion. Reynolds v. Battles , No. W2000-00340-COA-R3-CV, 2001 Tenn . App. L EXIS 78 at *18 ( Tenn. Ct. App. Feb. 6, 2001) ( no perm. app. filed ) (here inafter refer red to as “ Battles I

”).-2-

Alth o ugh the Battles were represente d by counsel in the trial cour t, their counsel was permitted to withdra

w by order of July 3, 2000. Thus when Battles I was heard by this Court, neither party was represented by

counsel. Additionally, in Battles I , the Battles filed no brief in this Cour

t. The Battles divorced soon after the initial claim in Battles I had been dismissed by the tria l court, and assert in their current brief that they could not financially af

ford counsel in the appeal of Battles I

. B y Ju ne of 2001, the Battles had not answered the Rey nolds complaint as provided in our order remanding this cause. The Re yn olds accordingly moved for a default judgement. The trial co u rt grante d this motion

in July of 2001, a

nd awar ded the Re

yno lds over $ 1,000,000

in compensatory

damage s. Upon receiving notice of this judgment, the Ba ttles again retained counsel and moved the trial cour

t to set aside the defa

ult judgm ent pursu ant Tenn . R. Civ. P. 60 .02. This motion was denied by the

trial court in December of 2001, and the Ba ttles filed their notice of appeal to this Court on December 12, 2001.
Issues Presented The issues presented by

the Battles in this appeal are: (1) Whether

the trial court erred by

failing to set aside the default judgment entered agains t the Def

endants desp ite Defendants’ mistake, inadvertence and/or e xcusable neglec t? (2) Whether

the trial court erred by

awarding damages to Plaintiffs in the sum of one million two hundred thousand dollars ($1,200,000.00)? The Rey nolds rai se the fo llowing a dditional i ssues: (1) Whe ther

this Court must conclusively presume that the evidenc e support ed th e action of the trial court because of the failu re of the Appellan ts to provid

e this Courtwith an adequate record and the fa ilure of the Appel lan ts to file a transcript or statement of evidence? (2) Whether th

e appea l of the Ap

pellants i s frivolou s? Standard of Review
We review a trial court’s entry of a def ault judgment and its refusa l to set that judgment aside pursuant to a Tenn . R. Civ. P. 60.02 motion under an abuse of discretion standard. Tenn. Dep’t of Human Res. v. Barbee , 689 S.W.2d 863, 866 (Tenn. 1985). However, in the interests of justice, the courts have expressed

a clear preferenc e for a trial on the merits. Id. Thus rule 60.02 is construed liberall y in the context of default judgments. Id. at 867. In deciding whe ther to grant a ru le 60 .02 motion to set aside the defa ult judgment, courts consider three criteria: 1) whether the default was willful; 2) whether

the defendant has asserted a meritorious defense; 3) the amount of prejudice which-3-

may result to the non-defaulting party

. Id. at 866. If there is any reasonable doubt about whether the judgment should be set aside, the court should grant relief. Nelson v. Simpson , 826 S.W.2d 483, 486 (Tenn. Ct. App. 1991).

Denial of R ule 60.02 M

otion to Set As ide the De

fault Judgment
As an initial matter, we note that the Battles contend that they wer e unawa re that th

e cause had been remanded in Battles I . We find this argument untenable. Notice that the c ause in Battles I had been remanded was sent by this Court to the Battles at 1100 Hutton Road, Sardis, TN, which was the last address known by this Court at the time o f th e reman d. If a li tigant procee ding pro se relocates during the course of litigation, he is encumber ed with the res ponsibil ity of notify ing the clerk of the court of his n

ew addr ess. Withou

t such noti fication , it

is virtually impossible for the clerk to assure that subsequent notices will be received.
The Battles further submit that they did not receive notice of the Rey nolds’ June 2001 motion for def ault judg ment or of

the July 2001 hearing. The Tennessee Rules of Civil Procedure require:
All parties against whom a default judgment is soug htshall be s erved w ith a written notice of the application for judgment at least five day s before th e hearing on the application, regardless of whether the party has ma

de an appearance in the ac tion. Tenn. R. Civ. P. 55.01. It is undisputed that both notices were sent by certified mail, return receipt requested, to Mr. Battles at Magnolia Street in Savannah, TN, and to Ta mmy Battles at 1045 Hutton Road in Sardis, TN, and th at they were re turned unclaimed t

o the Reynolds. I

t is also undisputed that following the hearing, the Battles rec eived notice of the trial court’s judgment which was sent to Mr. Battles at the 508 Magnolia Street address and to Tammy Battles at Woodstown Loop in Shiloh, TN, by regula r mail on July

19, 2001. Tammy Ba

ttles asserts that although she at one time resided at 1100 Hutton Road, she never resided at 1045 Hutton Road. Mr. Battles asser ts thathe did not reside at the Magnoli a Street a ddress, that it

is his grandfather’s address, and that he was unaware of the notices which were se

nt by certifi ed mail. T

he Rey nolds asse

rt that the Batt

les simply chose to ignore the certified mail, and

that the c ontention

by t he Battl es that the

y ne ver live d at the Mag nolia Street addres sed is refute d by

the fac t that they

listed 508 Magnoli a Street as their a

ddress du ring the ir divorce proceedings and on the appe al bond in this case. Upon review of the limited record before us, we

note that the Battles list 508 Magnolia Street as their address on the appeal bond filed in this Court. The Battles’ use o f that a ddress a s their addressof record, in addition to the fa ct that t hey rec eived mail at this address, estops them from denying that it is the

appropr iate add ress for notice purposes . We agr ee that h ad notice

of the default application beensent to 508 Magnolia Street, rule 55.01 would have been satisfied. How ever, our review of the record before us reve als that while the court’s judgment was sent t o 508 Magnolia Street and received there by

the Battles, the certificates of service filed with the notices of the motion and hearing sent by

the Rey nolds indic at e that these notices were sent to 408 Magnolia Street. In lig ht of the discrepancy

in the record before us reg arding where the notices were actually sent, we believe-4-

it is plausibl e that the Battles neither received notice of nor were a ware of the Rey

nolds’ motion for a default judgment or the July he aring on that motion.
As noted above, if there is any doubt a bout whether a default judgment should be set aside, the court shouldgrant relief. Nelson , 826 S.W.2d at 486. Further, this Court recently ha s opined that “[n]otice to partie s not repr esented by c ounsel tha

t a motio n fordefault

judgmen t is pendin g is entirely consistent with the rules and with traditional notions of fair play .” Nel s on , 826 S.W.2d at 487. According to the certificates of se rvice attested to by

the Reynolds in this case, proper notice to the Batt

les simply was not ma

de. We ac cording ly

are satisfied

that sufficient doubt exists to justify setting the default judgment aside.
The Reynolds further a ssert that we should uphold the trial court’s default judgmen t becaus e the Battles have not asserted a meritorious defense to the cla im agai nst them. U

nless the judgment is void, a d efault judgment will not be set aside unless the defendant has made a showing of a meritorious defense. Patterson v . Rockwell

Int’l , 665 S.W.2d 96, 100 (Tenn. 1984). The defendant must assert a meritorious defense to the cause of a ction agains t him in orde r to have the defa ult judgment set aside a nd to proceed to a trial on the merits. Id. at 101. A simple assertion that the defendant has a defense is not sufficient to constitute a showing of a meritorious defense. Id.
Neither the Batt les’ motio n to set as ide the de fault judgment nor their memorandum of law in sup port of th e motion assert a meritorious defense. The Battles stateme nt that they “are

now prepared to answe r or othe rwise ple a to the c omp lai nt which has been filed in this cause” does not constitute as meritorious defense. See id. at 100. However, an assertion of a meritori ous defe

nse is notrequired where “the

default judgment was procured in violation of the Rules of Civil Procedure.” Churney v. Churney , No. 02A0 1-9211-C V -00326, 1993 Tenn. Ap p. LE XIS 49 4 at *6 (Te

nn. Ct. App. July 22, 1993 ) (

no perm. app. filed ) (cit ing Patterson , 665 S.W.2d 96). Since the Reynolds failedto properl

y notify the Batt les of the ir applic ation for

default judgment as required by

rule 55.01, the Battles’ failure to assert a meritorious defe nse is notfatal to their motion to set aside the defa ult judgmen t.
Conclusion
In light of the fore going , the def

ault judgment ente

red by the trial court is v acated . This cau se is remanded for further proceedings consistent with this opinion. Costs of this appeal are taxed to the appelle es, Jackie

L. Re yno lds and Au drey

Jeannine Re

yno lds.

___________________________________ DAVID R. FARMER, JUDGE