IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 10, 2002 Session

ESTATE OF ANTHONY D. VANLEER V. SARA HARAKAS, ET AL.

Appeal from the Chancery Court for Hickman County

No. 991524 Donald P. Harris, Judge

No. M2001-00687-COA-R3-CV - Filed December 5, 2002

A default judgment was entered against Sara and Andre Harakas, the Appellants herein, in a dispute

over defects in the construction of a residence. At the time the default judgment was entered, Mr.

and Mrs. Harakas had not answered the complaint. Mr. and Mrs. Harakas filed a pro se motion to

set aside the default judgment, arguing that they did not receive the notice of the motion for default

judgment, which the trial court denied after a hearing that included testimony from Mrs. Harakas.

Mr. and Mrs. Harakas then retained an attorney who filed a motion to alter or amend the refusal to

set aside the default judgment and a second motion to set aside the judgment taken by default. The

trial court denied these motions. Because there was reasonable doubt as to whether the default

judgment should have been set aside, we reverse the trial court’s refusal to set aside.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Reversed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN, J., and

IRVIN H. KILCREASE, SP. J., joined.

Karla C. Hewitt, Nashville, Tennessee, for the appellants, Sara Harakas and Andre Harakas.

Ronald Kilgore, Kirk Vandivort, Charlotte, Tennessee, for the appellee, The Estate of Anthony

Douglas Vanleer.

OPINION

This case involves a dispute over defects in the construction of a residence owned by Mr.

Anthony Vanlee, now deceased, and the trial court’s grant of a default judgment for his Estate. Mr.

Vanleer entered into a contract with Sara and Andre Harakas in March of 1996 for the construction

of a home. The house was completed in April of 1996, and Mr. Vanleer took possession of the

residence in May. Tragically, on October 27, 1996, Mr. Vanleer was murdered. His mother, Mrs.

Martha A. Vanleer, was appointed administratrix of the Estate and assumed the role of owner of the

property. 
1While this letter does not appear in the record, it is referenced in the affidavit of Mrs. Harakas. In addition,

at the hearing on the motion to alter or amend, both counsel and the trial court acknowledged the “request for

continuance.”

2

According to Mrs. Harakas’s affidavit, she called the Clerk and Master’s office that morning to notify the judge

that the Harakases would be running late for the hearing. Mr. and Mrs. Haraka s arrived at the courthouse at

approximately 9:15 a.m. and filed a their motion to set aside default judgment. They remained at the courthouse until

around 9:45 a.m. before discovering that the hearing for damages had already been held. They left after being notified

that the hearing had already concluded and learning that their motion to set aside default would be heard on June 20,

2000. The hearing was later moved to July 18, 2000.

3

Among other assertions, the Harakases denied that problems with the house were related to construction

defects, stated that the house had remained unoccupied, unheated, and uncooled for three years before the suit, and that

Mr. Vanleer and his fianceé had been pleased with the house and had no problems with it.

-2-

According to Mrs. Vanleer, in late 1996 problems began to arise with workmanship and the

failure of Mr. Harakas to fulfill certain terms of the contract. Although discussions took place

between the parties and, apparently, some work was performed, the dispute continued until Mrs.

Vanleer filed suit on behalf of the Estate on December 22, 1999, alleging breach of warranty,

equitable estoppel, and breach of contract. Due to the nature of this appeal, the procedural history

of the case at the trial court level is of paramount importance. 

On December 24, 1999, Mr. and Mrs. Harakas were served with the complaint. On January

20, 2000, Mr. and Mrs. Harakas, appearingpro se, wrote a letter to opposing counsel and sent a copy

of the letter to the trial court asking for thirty (30) additional days to answer the complaint.1 Mr. and

Mrs. Harakas claimed that health problems prevented them from filing an answer. 

On April 7, 2000, the Estate filed a motion for default judgment. The motion contained a

certificate of service, signed by counsel for the Estate and certifying that it was mailed to Mr. and

Mrs. Harakas that day at the same address. The trial court granted the motion for default judgment

on May 9, 2000, at which time the Harakases still had not filed an answer. Mr. and Mrs. Harakas

did not appear at the hearing on the motion for default judgment. The trial court mailed a copy of

the default judgment to Mr. and Mrs. Harakas, notifying them of the judgment and the date on which

the hearing for damages would be held in the trial court, June 5, 2000. Mr. and Mrs. Harakas came

to the courthouse that day but missed the hearing on damages because they were late for the docket

call. The same day, Mr. and Mrs. Harakas filed a motion to set aside default judgment.2

On July, 18, 2000, Mrs. Vanleer, her counsel, and Mr. and Mrs. Harakas appeared at the

hearing on the motion to set aside the default judgment. Mrs. Harakas testified that she and her

husband did not receive notice of the motion for default judgment. The judge appointed to hear the

arguments on the motion was different from the judge who had heard all previous issues regarding

the Estate’s complaint. Mr. and Mrs. Harakas filed an answer

3

 and cross-complaint on the same day,

again appearing pro se. The trial court denied the motion to set aside default judgment and entered

an order on July 20, 2000, to that effect, stating:
4

Tenn. R. Civ. P. 55.01 provided at the time relevant herein that the notice of the motion for default judgment

be served on the party against whom default judgment is sought thirty (30) days prior to the hearing on the motion. Tenn.

R. Civ. P. 6.05 provides that three (3) days shall be added when service is made upon an opposing party by mail in

certain specified circumstances. 

-3-

. . . after hearing sworn testimony of the Defendant, Sara Harakas, argument of

Counsel for the Plaintiff, and the entire record, and the Court having considered said

Motion and the Court being fully advised is of the opinion that the Defendants have

not provided sufficient grounds to set aside the Default Judgment pursuant to Rule

55 of the Tennessee Rules of Civil Procedure, and the Court finds that the Motion to

Set Aside the Default Judgment is not well taken and should not be granted. 

On August 14, 2000, the Order for Damages was entered in accordance with the events that

transpired at the hearing on that issue, granting a judgment for the Estate in the amount of Twelve

Thousand Three Hundred Twenty Dollars ($12,320.00). 

Mr. and Mrs. Harakas then retained counsel who filed a motion to alter or amend the

judgment of the court, for a new trial, and to set aside default judgment pursuant to Rules 55, 59, and

60, again arguing that the Harakases did not receive notice of the motion for default judgment. Mr.

and Mrs. Harakas later amended this motion, asserting that “although they were served with the

initial process, they were not served with the motion for default judgment, though the certificate of

service appears proper in all respects” and that once the default judgment was entered against them,

they appeared at the hearing on damages and filed a motion to set aside the default judgment. 

Argument on the amended motion to alter or amend the judgment of the court, for a new trial,

and to set aside default judgment pursuant to Rules 55, 59, and 60 was heard by a third trial judge.

Mr. and Mrs. Harakas argued for the first time at this hearing that the hearing on the motion for

default judgment was held prior to the expiration of the thirty-three (33) days provided for in Tenn.

R. Civ. P. 55.01 and 6.05.4

The order resulting from that hearing reflects that the judge hearing the motions:

announced that the matter should be submitted to Judge Timothy L. Easter in that he

heard and denied the original motion to set aside the default judgment filed by the

defendants. Since that hearing Judge Easter has declined to hear the matter and since

the judge who initially entered the judgment, Judge Jeffrey S. Bivens, is no longer

an active trial judge, the court will proceed to determine the case upon the briefs and

arguments previously heard.

The court denied the motion to alter or amend the judgment of the court, for a new trial, and

to set aside the default judgment pursuant to Rules 55, 59, and 60 stating:
-4-

Defendants [Mr. and Mrs. Harakas] argue they were only given 32 days notice [of the

motion for default judgment] and, therefore, the hearing was premature. This defect,

if it be one, was not, however, raised before the court in the defendant’s initial

motion to set aside the default judgment filed and heard by . . . [the second judge]

and, therefore, was waived. 

Other than the argument based upon Rule 6.05, T.R.C.P., no new grounds have been

presented in this amended motion for relief. On July 18, 2000, . . . [the second judge]

was faced with defendants who had failed to answer the original complaint for almost

seven (7) months. He determined that the defendants should not be granted relief

after such a period of time. This court cannot disagree with his ruling. The amended

motion to alter or amend the judgment of the court, for a new trial and to set aside a

default judgment should therefore be denied. 

Mr. and Mrs. Harakas have appealed the denial of their motions. The question before us is

whether the trial court should have granted the motion to alter or amend the judgment, entered by

another judge, denying the motion to set aside the default judgment. In essence, the question is

whether the default judgment should have been set aside.

We have a transcript of the hearing on the motion to alter or amend which consisted only of

argument by counsel. The Harakases have provided a Statement of the Evidence, pursuant to Tenn.

R. App. P. 24(c), from the hearing held July 18 on their pro se motion to set aside default judgment.

I.

The decision by a trial court to enter a default judgment or to refuse to set aside a default

judgment is reviewed for abuse of discretion. Patterson v. Rockwell Int’l, 665 S.W.2d 96, 100

(Tenn. 1984); Tennessee State Bank v. Lay, 609 S.W.2d 525, 527 (Tenn. Ct. App. 1980). The

burden of establishing abuse of discretion is on the party seeking to overturn the trial court’s ruling

on appeal. Ballard v. Herzke, 924 S.W.2d 652, 659 (Tenn. 1996).

Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long

as reasonable minds can disagree as to the propriety of the decision made.” A trial

court abuses its discretion only when it “applies an incorrect legal standard, or

reaches a decision which is against logic or reasoning or that causes an injustice to

the party complaining.” The abuse of discretion standard does not permit the

appellate court to substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

The party seeking to set aside a default judgment has the burden of demonstrating that it is

entitled to relief based on one of the applicable grounds and that it has a meritorious defense to the

claims against it. Nelson v. Simpson, 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991). Nonetheless, if
5

The Harakases’ original motion to set aside stated it was filed under Rule 55 and was filed within thirty (30)

days of the entry of the default judgment and is, consequently, properly considered a motion made pursuant to Rule 59.

The later motion was a timely-filed Rule 59 motion to alter or amend the judgment declining to set aside, combined with

a Rule 60 motion for relief by setting aside the default judgment. See Campbell v. Archer, 555 S.W.2d 110, 112 (Tenn.

1977) for an explanation of the distinction between the two rules. Whether the motion was made pursuant to Rule 59 or

(continued...)

-5-

any reasonable doubt exists as to whether the default judgment should be set aside, the court should

grant relief. Id. 826 S.W.2d at 486; Keck v. Nationwide Sys., Inc., 499 S.W.2d 266, 267 (Tenn. Ct.

App. 1973).

One can find numerous decisions where the courts make it clear they are anxious to

see cases determined on the merits whenever such is possible. It seems to be a

universal rule that when there is a reasonable doubt as to whether a default judgment

should be set aside upon a proper application, the court should exercise its discretion

in favor of granting the application so as to permit a determination of the cause upon

its merits.

Keck, 499 S.W.2d at 267.

Thus, although the trial court has discretion to deny a motion to set aside a default judgment,

that discretion should be exercised in favor of setting aside the judgment if there is a reasonable

question as to the grounds for such relief, because of the well-settled preference for giving every

person a day in court to make his or her defense. Id. 499 S.W.2d at 266-67 (citing Brown v. Brown,

86 Tenn. 277, 7 S. W. 640 (1887); Roberts v. Stewart, 9 Tenn. (1 Yer.) 390 (1830); Fidelity-Phoenix

Fire Ins. Co. v. Oliver, 25 Tenn. App. 114, 152 S.W.2d 254 (1941)).

In fact, in Tennessee State Bank v. Lay, 609 S.W.2d 525 (Tenn. Ct. App. 1980), this court

held that the trial court applied the wrong standard in denying a motion to set aside a default

judgment where the court had applied a stringent standard for altering or setting aside a final

judgment under Rule 60. Instead, the trial court should have applied the standard favoring the setting

aside of default judgments so that the dispute could be determined on its merits. Id. 609 S.W.2d at

525.

Thus, the trial court’s discretion must be exercised by applying the standard applicable to

default judgments and set aside such a judgment if there is a reasonable question as to the grounds

for relief. The relevant criteria are whether the failure to respond or answer was willful, whether the

defendant has a meritorious defense, and the extent of any prejudice to the plaintiff if relief is

granted. Tennessee Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 867 (Tenn. 1985); Nelson,

826 S.W.2d at 485. 

A party against whom a default judgment has been entered may seek relief from that

judgment by filing a motion to alter or amend the judgment under Tenn. R. Civ. P. 59 or a motion

for relief from judgment under Rule 60.5

 Tenn. R. Civ. P. 55.02 allows a trial court to grant relief
5

(...continued)

Rule 60, the standard to be applied is the same because of the language of Rule 55.02.

6

Tenn. R. Civ. P. 55 has undergone several revisions. The Advisory Commission Comments state that the

“former five-day rule has been expanded to thirty days. Consequently, the defendant must be served with written notice

of the application at least thirty days before the default hearing.” On July 1, 2000, the thirty (30) day notice requirement

was changed back to five days. Because the default judgment in this case was sought after July 1, 1998, but prior to July

1, 2000, the thirty (30) day notice requirement applies. 

-6-

from a default judgment for good cause shown in accordance with Tenn. R. Civ. P. 60.02, which

provides relief “on such terms as are just”:

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

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. 

As suggested above, “Rule 60 is construed with liberality to afford relief from a default

judgment.” Barbee, 689 S.W.2d at 867; Nelson, 826 S.W.2d at 485.

II.

The Harakases’ basic claim is that they never received notice that default judgment was being

sought against them or notice of the hearing. As the plain language of Tenn. R. Civ. P. 55.01 makes

clear, such notice is a prerequisite to entry of a default judgment. At the time of the filing of the

motion for default judgment in the case herein, Tenn. R. Civ. P. 55.01 read:6

Entry.- When a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules and that fact is made

to appear by affidavit or otherwise, judgment by default may be entered as follows:

The party entitled to a judgment by default shall apply to the court. All parties

against whom a default judgment is sought shall be served with a written notice of

the application for judgment at least thirty days before the hearing on the application,

regardless of whether the party has made an appearance in the action. . . .

It is well settled that courts should grant relief from default judgment where the plaintiff has

failed to comply with required procedural safeguards. Nelson, 826 S.W.2d at 486. Accordingly,

appellate courts have set aside default judgments where the plaintiff or plaintiff’s counsel was

responsible for the lack of notice or inadequate notice. See, e.g., Johnson v. Wade, No. W1999-
7

Some cases indicate that a default judgment entered without proof of proper notice is void. See, e.g., Mayes,

1995 Tenn. App. LEXIS 10, at *3. In Mayes, there was nothing in the record to “remotely suggest” the requisite notice

(continued...)

-7-

01651-COA-R3-CV, 2000 Tenn. App. LEXIS 609 (Tenn. Ct. App. Sept. 6, 2000) (no Tenn. R. App.

P. 11 application filed) (setting aside judgment where motion for default judgment, with certificate

of service, did not include a date for the default judgment hearing); First Tenn. Bank Nat’l Ass’n v.

McClure, No. 169, 1990 Tenn. App. LEXIS 48 (Tenn. Ct. App. Jan. 31, 1990) (no Tenn. R. App.

P. 11 application filed) (holding that where neither defendant nor his counsel had been served with

notice of the motion for default judgment or the hearing thereon, the trial court’s grant of default

judgment with no proof of service in the record was error, and the default judgment was set aside).

If the notice requirement is intended to assure the defendants are aware of the impending

judgment, the principles and goals underlying the notice requirement apply with equal force when

the defendant does not actually receive notice even though that failure may not be directly caused

by the plaintiff. “Notice to the defendant is crucial in obtaining a default judgment.” NANCY FRAAS

MACLEAN, ET AL., 4 TENNESSEE PRACTICE § 55.2 (3d ed. 2000). In Mayes v. Mayes, No. 03A01-

9404-CV-00121, 1995 Tenn. App. LEXIS 10, at *5 (Tenn. Ct. App. Jan. 11, 1995) (no Tenn. R.

App. P. 11 application filed), this court held unequivocally that “no judgment by default could be

entered unless and until the requisite application to the court for a default judgment had been

properly served on the [defendant]. Id. 1995 Tenn. App. LEXIS 10, at *5. 

Where a party has no actual notice of a critical date in a court proceeding, the circumstances

make out a case of mistake, surprise or excusable neglect under Rule 60.02. Campbell v. Archer,

555 S.W.2d 110, 113 (Tenn. 1977). See also Bok v. State of Tenn., No. 03A01-9812-BC-00426,

1999 Tenn. App. LEXIS 515, at *3 (Tenn. Ct. App. July 28, 1999) (no Tenn. R. App. P. 11

application filed) (applying that principle to failure of plaintiff’s counsel to receive defendant’s

motion to dismiss and setting aside dismissal). In Campbell, notice of the trial date had been sent

to the office of defendants’ counsel, but the attorney denied that he was personally aware of the trial

date. Four days before the trial date, the defendants changed attorneys, and neither the new attorney

nor the defendants were informed of the impending trial date. The trial proceeded without

defendants’ participation, a verdict was rendered, and the trial court refused to grant a new trial.

Because the defendants had no actual notice of the trial date, the Supreme Court found these

circumstances made out a case of mistake, inadvertence, or excusable neglect, rather than one of

willful failure to appear. 555 S.W.2d at 112-13. The Court found the trial court had erred in

refusing to set aside the judgment. 

Thus, generally, failure of notice of a critical step in a lawsuit can constitute justification for

excusable neglect under Tenn. R. Civ. P. 60, Tate v. County of Monroe, 578 S. W. 642, 644 (Tenn.

Ct. App. 1978) (holding that failure to notify defendant of entry of order overruling motion for new

trial was the type of error set out in Rule 60.02 and justified relief), and failure of notice has

specifically been found to constitute excusable neglect justifying relief from default judgment where

combined with other requirements for such relief. Barbee, 689 S.W.2d at 867.7 
7

(...continued)

had been served. Other cases, such as those cited herein, state that failure of notice is justification for excusable neglect,

implying that the default judgment is merely voidable, not void. We think the distinction may lie in the proof of service

presented to the trial court when default judgment is requested. Where, as in this case, the default judgment was granted

on the basis of counsel’s certificate of service, which constitutes proof of service, the judgment was validly entered at

the time, and the question is whether it should have been set aside based upon equitable principles. Thus, the judgment

was not void. The question of whether a default judgment entered without notice or compliance with other procedural

requirements is primarily relevant herein to the question of whether, to obtain relief from the judgment, the defendant

is required to demonstrate a meritorious defense. Generally, a party seeking to set aside a default judgment must show

that he or she has a meritorious defense to the suit, but that requirement does not apply where the default judgment is

void. Patterson, 665 S.W.2d at 100-01. The Harakases filed an answer and counterclaim with supporting affidavits

demonstrating a meritorious defense, and the Estate has not argued they failed in that regard. Therefore, we will consider

the issues as raised by the parties and apply the meritorious defense requirement.

8

In fact, the rule on default judgment was amended in 1996 to require notice to those parties who had not yet

appeared in the lawsuit. The Advisory Committee comments indicate that one reason for this change was “the liberal

Tennessee caselaw allowing Rule 60 relief.” 

-8-

In Barbee, the trial date had been set before defendant’s counsel made an appearance in the

case, and neither the defendant nor defendant’s counsel were served with notice of the trial date,

although plaintiff’s counsel had included that information in a letter to defendant’s counsel enclosing

discovery requests. Neither the defendant nor counsel appeared at the trial, and default judgment

was entered. In moving to set aside the judgment, defendant furnished an affidavit from his lawyer

stating the lawyer was out of the country on the day of trial and that the clerk’s office had not served

notice of the trial date. Our Supreme Court determined that the trial court had properly set aside the

judgment. In reaching that conclusion, the Court relied heavily on the distinction in the application

of Rule 60 to default judgments as opposed to other types of judgments, Id. 689 S.W.2d at 866-67,

and cited with approval the approach taken by the federal courts in liberally construing Rule 60

where relief is sought from default judgments because the interests of justice are best served by a

trial on the merits. Id. at 866.

A default judgment hearing is a critical proceeding in a lawsuit, subjecting the defendant to

judgment against him and disposing of the case as completely as judgment after trial. See Patterson,

665 S.W.2d at 101 (stating that default judgment disposes of a case on its merits and is a final order).

We must presume that the notice requirement of Tenn. R. Civ. P. 55.01 exists for a purpose: to

actually provide notice to a party of a critical step in the lawsuit, with the potential for significant

consequences.8

 When a defendant is notified of a potential default, he or she may make a Tenn. R.

Civ. P. 6.02 motion for an extension of time to plead. MACLEAN ET AL., 4 TENNESSEE PRACTICE

§ 55.2. Whether or not to grant an extension and allow a late filed answer is, of course, within the

discretion of the trial court. State ex rel. Jones v. Looper, 86 S.W.3d 194-95 (Tenn. Ct. App. 2000).

However, a party who does not receive notice that judgment may be taken against him by default

loses the opportunity to avoid that result by whatever available procedural steps.

Using a similar analysis in Masters by Masters v. Rishton, 863 S.W.2d 702 (Tenn. Ct. App.

1992), this court determined that the purpose of Tenn. R. Civ. P. 58, regarding entry of orders, was

“to insure that a party was aware of the existence of a final, appealable judgment in a lawsuit in
9

In the case herein, Mr. and Mrs. Harakas not only argue that they were not notified regarding the hearing on

the motion, they also challenge the date on which the hearing was held. Mr. and Mrs. Harakas argue that had they been

properly served with the motion for default judgment that was filed on April 7, 2000, the trial court was still precluded

from entering default judgment on May 9, 2000, because only thirty-two (32) days had expired from the date appearing

on the certificate of service, and, according to Tenn. R. Civ. P. 6.05 (allowing for the addition of three-days to the

computation of time when a notice is served by mail) and Tenn. P. Civ. P. 55.01 (providing that the party against whom

default judgment is sought must have thirty (30) days notice of the hearing), the hearing could be held by the trial court

no earlier than thirty-three (33) days after the date on the certificate of service. In view of our decision, it is not necessary

to address this argument. We also note that the Harakases claim they received no notice; thus, they were not prejudiced

by the date set for the hearing.

-9-

which he was involved.” Under that rationale, the court held, a judgment which was not actually

served on a party is not final. We think the same reasoning applies herein.

For all of the above reasons, we conclude that if the Harakases did not actually receive notice

of the motion for default judgment and the hearing thereon, they demonstrated excusable neglect

and, if they meet the other requirements, are entitled to have the default judgment set aside.9

III.

The order granting default judgment states that “Defendants did not appear in Court after

being given notice of the Motion for Default.” Apparently that statement is based upon the

certificate of service appearing on the motion, wherein counsel for the Estate certified that a copy

of the motion had been mailed to the Harakases.

In their motion to set aside the default judgment, the Harakases alleged they had not received

notice of the motion or the hearing. At the hearing on that motion, Mrs. Harakas testified that neither

she nor her husband had received the motion for default judgement and that they only learned about

the motion when they received the order granting judgment and setting the date for the hearing on

damages. 

The Estate has provided no further evidence, by affidavit or testimony at the hearing,

regarding service of the notice or its handling after counsel signed the certificate. The order denying

the original motion to set aside does not address the issue of whether the Harakases actually received

notice. It merely recites that “Defendants have not provided sufficient grounds to set aside the

Default Judgment.”

Having accomplished service of the initial complaint and summons pursuant to Tenn. R. Civ.

P. 4, a party may serve subsequent papers under the less stringent requirements of Tenn. R. Civ. P.

5. MACLEAN ET AL., 3 TENNESSEE PRACTICE § 5.01. According to Tenn. R. Civ. P. 5.02, service

may be accomplished by delivering a copy of the document to be served (or leaving it as described

in the rule) or by mailing it to the last known address, or if no address is known, by leaving a copy

with the clerk of the court. 
-10-

Service by personal delivery permits the opportunity for evidence of that actual delivery.

Similarly, using certain types of mail also will produce evidence of delivery, such as a signed return

receipt. Thus, the most preferable methods for service are personal service and certified or return

receipt requested mail, since the party making service will have little or no doubt that the papers

actually reached their destination. In fact, the Tennessee Rules of Civil Procedure prohibit entry of

a default judgment where the summons and complaint were served by mail unless the record

contains a return receipt showing personal acceptance by the defendant or designated persons. Tenn.

R. Civ. P. 4.04(10). The rule requiring notice prior to entry of a default judgment does not contain

the same requirement. However, we note that using a return receipt requested or similar procedure

requiring signature by the recipient would eliminate or lessen the opportunity for a defendant to

claim nonreceipt of the notice.

Even in the absence of such procedures, as when regular mail is used, service may be proved,

and the applicable rule provides:

Whenever any pleading or other paper is served under 5.01 and 5.02, proof of the

time and manner of such service shall be filed before action is taken thereon by the

court or the parties. Proof may be by certificate of a member of the Bar of the Court

or by affidavit of the person who served the papers, or by any other proof satisfactory

to the court. 

Tenn. R. Civ. P. 5.03.

Thus, the certificate of service was sufficient proof of notice for the court to enter default

judgment. However, the later testimony of the defendants that they never received notice was

otherwise unrebutted, the court made no finding this testimony was not credible, and the Estate

apparently rests solely on the certificate of service. 

The certificate of service required by Tenn. R. Civ. P. 5.03 is prima facia evidence that the

document was served in the manner described in the certificate and raises a rebuttable presumption

that it was received by the person to whom it was sent. Orr v. Orr, No. 01-A01-9012-CH-00464,

1991 Tenn. App. LEXIS 877, at *11 (Tenn. Ct. App. Nov. 6, 1991), later proceeding at No. 01-A-01-

9109-CH-00322, 1992 Tenn. App. LEXIS 174 (Tenn. Ct. App. Feb. 19, 1992) (no Tenn. R. App. P.

11 application filed). That presumption can be rebutted. Id. While the details set out in Rule 5.02

“are designed to give every reasonable assurance that a copy of the pertinent papers in the suit

actually reach adversary parties . . . ,” Advisory Commission Comments to Rule 5, there obviously

exists the possibility of proof that a document was not received even though a certificate of service

appears on it. See Rishton, 863 S.W.2d at 705 (finding that although an order included a certificate

of service, it was in fact never served).

In Bok v. State of Tenn., No. 03A01-9812-BC-00426, 1999 Tenn. App. LEXIS 515 (Tenn.

Ct. App. July 28, 1999) (no Tenn. R. App. P. 11 application filed), this court reversed the judgment

of the Claims Commission refusing to set aside a dismissal which had been granted because the
10We note that the Harakases’ actions after they received notice of entry of the default judgment are consistent

with their sworn testimony that they did not receive notice prior to the hearing. They filed a motion to set aside in which

they also requested permission to file an answer. They later filed a detailed answer supported by affidavits and exhibits.

They have since diligently pursued their rights.

11Where the judgment is void, the defendants are not required to show a meritorious defense. See n.6.

-11-

plaintiff failed to timely answer the State’s motion to dismiss. The claimant’s attorney filed an

affidavit that he did not receive a copy of the motion to dismiss, which was unrefuted in the record.

The court found that lack of actual notice constituted excusable neglect, that these circumstances

created a reasonable question of whether default judgement should be set aside, and, relying upon

Tennessee State Bank v. Lay, held such question mandated that the judgment be set aside.

In Tennessee State Bank v. Lay, 609 S.W.2d 525, 527-28 (Tenn. Ct. App. 1980), this court

found that from the evidence it could reasonably be concluded that the defendant was not informed

of the lawsuit against her until after the default judgment was entered and that she had acted

diligently to protect her rights thereafter. The evidence showed that process was issued and was

returned with a return receipt signed with defendant’s name. The plaintiff provided the affidavit of

a handwriting expert who stated the signature on the return receipt was the defendant’s. On the other

side, the defendant testified by affidavit that she did not receive the complaint and summons and

filed the affidavit of a friend to the effect the defendant was out of her home state on vacation with

the friend on the date of the alleged service. Considering this conflicting evidence, in light of the

standard favoring setting aside default judgments where there is any reasonable doubt, this court

reversed the trial court’s denial of the motion to set aside the default judgment. 

In Keck v. Nationwide Sys., Inc., 499 S.W.2d 266 (Tenn. Ct. App. 1973), this court held that

the trial court should have set aside a default judgment where the complaint and summons were

served on the defendant’s local office and mailed to the national office but, through mistake or

inadvertence, were apparently lost. In so ruling, this court relied upon the preference for setting

aside a default judgment where there is any doubt.

We conclude that the evidence created, at the least, a reasonable doubt as to whether the

Harakases received actual notice of the motion for default judgment and the hearing thereon.10

Consequently, in accordance with the principles set out above, we conclude that the default judgment

should have been set aside if the Harakases demonstrated the existence of a meritorious defense and

if the setting aside would not present unacceptable prejudice to the Estate.

Although the requirement of a meritorious defense does not appear in the rules, it has been

applied, almost invariably, because the request for relief is based upon equitable principles.11

Yearwood, Johnson, Stanton & Crabtree, Inc. v. Foxland Dev. Venture, 828 S.W.2d 412 (Tenn. Ct.

App. 1991); Nelson, 826 S.W.2d at 485. The Harakases filed an answer and counterclaim with

attachments, including affidavits, which set forth a meritorious defense. Although the original

motion to set aside did not include an assertion that the defendants had a meritorious defense to the

lawsuit, the plaintiff’s response to the motion did not raise that omission as a ground for denial. The
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answer and counterclaim were filed on the date of the hearing. The order resulting from that hearing

states that the decision was based on the entire record and that the court was “fully advised.” On

appeal, the Estate asserts that the Harakases failed to allege the existence of a meritorious defense

in their initial pro se motion and that at the hearing Mrs. Harakas gave testimony “as to any and all

meritorious defenses.” The statement of the evidence does not include any reference to defenses to

the action. Based on the record before us, we find that the Harakases established that they have a

meritorious defense.

The final consideration is whether setting aside the default judgment, and requiring the

parties to proceed to trial, would result in unacceptable prejudice to the Estate. Barbee, 689 S.W.2d

at 866. Simply having to proceed to trial, even a second trial, does not constitute prejudice. Id. 689

S.W.2d at 868; Campbell, 555 S.W.2d at 113. Neither does the mere passage of time. Nelson, 826

S.W.2d at 486. The Estate has not asserted any specific prejudice which would support declining

to set aside the default judgment. 

InCampbell, the Supreme Court noted that, although being required to participate in a second

trial did not constitute the type of prejudice justifying denial of a motion to set aside a judgment, the

plaintiffs would be subjected to additional costs and ordered that defendants pay those costs. 555

S.W.2d at 113. Tenn. R. Civ. P. 60.02 authorizes relief from a judgment “on such terms as are just.”

In the case herein, we find it equitable and just that the Harakases reimburse the Estate for its costs

associated with the filing of the motion for default judgment and the hearing on that motion. On

remand, the trial court shall determine those costs.

IV. Conclusion

For the foregoing reasons, we reverse the judgment of the trial court, set aside the default

judgment, and remand the case for any further proceedings which may be necessary. Costs of the

appeal are taxed to the appellee, the Estate of Anthony D. Vanleer, for which execution may issue

if necessary.

____________________________________

PATRICIA J. COTTRELL, JUDGE