### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 14, 200 2 Session
CHELSEA ELIZ ABETH PIRKLE v. JUS TIN PARRISH P ARKER Direct Appeal from the Circuit Court for Knox County No. 1-519-01 Hon. Dale C. Workman, Circuit Judge

FILED JANUARY 13, 2003
No. E2002-01751-COA-R3-CV

The Trial Court refused to set aside the Default Judgment. On appe al, we vacate and remand.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circ

uit Court Vacate d and Remande

d.
H ERSCHEL P ICKENS F RANKS , J.,delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J. Joined.

Arthur F . Knight , II

I, Kn oxville, for

Appellan t. Harold C. Wimberly, Knoxville, for Appellee.

OPINION

In this actio n, the Tri al Court e ntered a Default Judgment agains t defendant, and subsequently ref

used to set it aside. Defendant has appealed.
On Febru ary 13, 200 2, plaintiff filed a Motion for Default Judgment, stating that defendant had bee n served with proc ess on August 22, 2001, and that no Answer had been filed. The certifi cate of service on theMotion stat e s that a copy wa s sent to defendant’s attorney , Michael Pemberton.
On March 15, 2002, a default judgment was enter ed against defendant, and the judgment recites that defendant was served with proc ess on August 22, 2001 but had failed to answer or otherwise respond or appear. The Court set a

hearing date to a ssess damages on April 26, 2002. The certificate of service

on the default judgment states that a copy was sent to defendant at

his home1 A previous version of this rule allowed service on the party or his re

presentative, but the rulewas amended such that it now re ads that service must be had on the party

. See Herring v. Interstat e Hotels , 2000 Tenn. App. Lexis 552 (Tenn. Ct. App. Aug. 14, 2000).
-2- address on Jackson Ave.

On March 27, 2002, an attorney ente red a Notice of Appearance as counsel for the defenda nt, and filed defendant’s affidavit which states that def endant resided at

301 Lippencott, and has resided

there sin ce Januar y 20 02. Furt

her, tha t plaintif f also inst ituted a c riminal a ction ag ainst defendant based on the alleged assault which was the g ravamen of the complaint in the civil action, and fur the r that defendant hired Michael Pemberton to repre sent him in the criminal matter, but Pemberton never r

eprese nted def endant in the civil case. The affidavit further states that defendant was advised by Pemberton that he needed to appear in court on March 15, but

defendant understood he was to be

in the Criminal Court, and not the Circuit Court. Defendant states that he went to

First Sessions Court on tha

t d ate and waited for his name to be called, but he was not ca lled before the Court.
Defend ant fu rther states that he later learned of the de fault judgment and retained counsel to represent him in the civil matter on March 20, 2002. He further stated that he had never been sued before and was unfamiliar with the proce ss, but that if he had had notice, he would have appeared to make a defense.

Defendant

also filed a Motion to Set Aside D efault Judgment and Relief from Judgmentpursuant

to Tenn. R. Civ. P. 60, alleg ing that he was no

t served with proc ess pursu ant to Tenn. R. Civ. P. 4, and was not serve d with writ ten notic e of the h

earing on the Moti on for De

fault, and that his failure to appear was due to mistake, inadvertenc e, and/or excusable ne glect. Su bs eq ue nt ly, the Trial Court denied defendant’s Motion, and held a h earing on damages, a nd awarded plaintiff compensatory damages of $3,000.00, and punitive damage s of $2,000.00.
Tenn. R. Civ. P. 55.01 requires th at “all pa rties ag ainst whom

a default judgme

nt is sought shall be served with a written notice of the application for judgment at least five day s before the hearing on the application, regardless of whether the party has ma

de an appearance in the action.” This is a departurefrom prior law, which stated that a party who ha

d not appeared was not entitled to notice. See Patterson v. Rockwell International , 665 S .W. 2d 96 (Tenn. 1 984). This rule was amended, however, in 1996, due to the “liberal Tennessee c ase law allowing Rule 60 relief.” See 1996 Advisory Commission Comments, Tenn. R. Civ. P. 55.

In this case, the Motion for Default shows on the Certificate of Serv ice that it was served on Mr. Pemberton, defendant’s attor ney in the criminal matter, but it was not served on defenda nt. Pemberton nor any othe r attorney e

ver entered an

appearance

for defendant in this matter until after the default judgment was entere d. Tenn. R . Civ. P. 55.0 1 expressl y st ates tha t the par ty 1 “shall be served with a written notice of the application for judgment”. This Court h as previ ously held that a default judgment is improper where the defe ndant was not given notice of the motion for-3-

default and the proposed date of the hearing on same. Johnson v. Wade , 2000 Tenn. App. Lexis 609 (Tenn. Ct. App. Sept. 6, 2000). See also State ex rel . Jones v. Looper , 86 S.W.3d 18 9 (Tenn. Ct. App. 2000) (“judge . . . may enter a default judgment . . . as long a s proper notice of hearing on the motion is given.”) The defendant in this case rec eived neither.

Plaintiff contends that the notice t o Pembertonwas sufficient because Pemberton was representing defenda

nt in the criminal matter arising from the same incident. There is no evidence that Pemberto n ever r

eprese nted def endant in this case. This Court has previously held that notice sent to an attorney who pr

eviously rep

resen ted a par

ty in another matter is not sufficient notic e to the party. Jarvis v . Jarvis , 664 S.W.2d 694 (Tenn. Ct. Ap p. 1983). We hold that service on an attorney wh o i s n ot re pr es en ti ng a p ar ty i n t he ca se be fo re th e c ou rt , i s n ot se rv ic e u po n t he pa rt y. In this case, while the attorney was not rep resent ing def endant in this case , he told de

fendant to appear in court, but

the defendant mistakenly appeared in the wrong

court, which would be expected due to the representation.

The Trial Court granted default judgment with no proof tha tthe Motion wasproperl

y served upon defendant, which establishes a basis to vacate. See First Tenne ssee Bank Nat. Ass’n v. McClure , 1990 Tenn. App. L exis 48 (Te

nn. Ct. App . Jan. 31, 19 90); see also Nelson v. Simpson , 826 S.W.2d 483 (Te nn . Ct. App. 1991) (trial court should grant relief from def ault judgment when plaintiff has failed to comply with required procedural safeg uards).
Tenn. R. Civ. P. 55. 02 states that a default judg ment can be set as ide for “ good ca

use shown . . . in accordance with Rule 60.02.” Tenn. R. Civ. P. 60.02 states in part that a party may

be relieved from a judgment based upon “mist

ake, ina dvertence, surp

rise or e xcusable neglect”. The movant has th e burden

of setting

forth fa cts suffi cient to e

xplain why

the movan

t was justif

ied in failing to avoid the mistake, inadvertence, surprise or neglect. Tenn. Dept. of Human Services v. Barbee , 689 S.W.2d 863 (Tenn. 1985). The requirements of Tenn. R. Civ. P. 60.02 sho uld be liberall y construe d, howeve

r, when a party is seekin g relie

f from a default judgmen t, and the court should look to “whether t

he defa ult was will ful and . . . assess the extent to which the defaulting party’s conduct has prejudiced the non-defaulting party .” Nelson v. Simpson , 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991). The party seeking to set the d

efault ju dgment a side shoul d also dem onstrate that he had a meritori ous defe

nse to the action. Patterson v. Rockwell International , 665 S.W.2d 96 (Tenn. 1984).
In this case there is nothing to show that defendant’s defa ult was culpable or willful and his affidavit states that he had a meritorious defense which he did not set forth because of the pending criminal charges. Also, there was no showing that setting aside the default judgmen t would prejudice the p laint

iff. As thi s Cour

t has p revi ously reco gniz ed, “ [i]t

seems to be a universal rule that when there is a reasonable doubt as to whether a default judgment should be set aside upon proper application, the court should exercise its discretion in favor of granting the application so as to permit a determination of t he cause upon the merits.” Keck v. Nationwide Systems, Inc. , 499 S.W.2d 266, 267 ( Tenn. Ct. App. 1973). Accordingly , we find the Trial Judge abused his discretion in no t setting

aside the Default Judgment, and we va

cate the Default Judgment a

nd rema nd fo r-4-

further proceedings consistent with this Opinion.

The cost of the appeal is assessed to Chelsea Elizabeth Pirkle.

_________________________ H ERSCHEL P ICKENS F RANKS , J.