IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 14, 2002 Session

CHELSEA ELIZABETH PIRKLE v. JUSTIN PARRISH PARKER

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 appeal, we vacate and remand.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Vacated and Remanded.

HERSCHELPICKENS FRANKS,J.,delivered the opinion of the court, in which HOUSTON M.GODDARD,

P.J., and D. MICHAEL SWINEY, J. Joined.

Arthur F. Knight, III, Knoxville, for Appellant.

Harold C. Wimberly, Knoxville, for Appellee.

OPINION

In this action, the Trial Court entered a Default Judgment against defendant, and

subsequently refused to set it aside. Defendant has appealed.

On February 13, 2002, plaintiff filed a Motion for Default Judgment, stating that

defendant had been served with process on August 22, 2001, and that no Answer had been filed. The

certificate of service on the Motion states that a copy was sent to defendant’s attorney, Michael

Pemberton. 

On March 15, 2002, a default judgment was entered against defendant, and the

judgment recites that defendant was served with process on August 22, 2001 but had failed to answer

or otherwise respond or appear. The Court set a hearing date to assess damages on April 26, 2002.

The certificate of service on the default judgment states that a copy was sent to defendant at his home
1

 A previous version of this rule allowed service on the party or his representative, but the

rule was amended such that it now reads that service must be had on the party. See Herring v.

Interstate Hotels, 2000 Tenn. App. Lexis 552 (Tenn. Ct. App. Aug. 14, 2000).

-2-

address on Jackson Ave. 

On March 27, 2002, an attorney entered a Notice of Appearance as counsel for the

defendant, and filed defendant’s affidavit which states that defendant resided at 301 Lippencott, and

has resided there since January 2002. Further, that plaintiff also instituted a criminal action against

defendant based on the alleged assault which was the gravamen of the complaint in the civil action,

and further that defendant hired Michael Pemberton to represent him in the criminal matter, but

Pemberton never represented defendant 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 that date and waited for his name to be called, but he was not called before the

Court. 

Defendant further states that he later learned of the default 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 process, but that if he had had notice, he would have

appeared to make a defense.

Defendant also filed a Motion to Set Aside Default Judgment and Relief from

Judgment pursuant to Tenn. R. Civ. P. 60, alleging that he was not served with process pursuant to

Tenn. R. Civ. P. 4, and was not served with written notice of the hearing on the Motion for Default,

and that his failure to appear was due to mistake, inadvertence, and/or excusable neglect.

Subsequently, the Trial Court denied defendant’s Motion, and held a hearing on damages, and

awarded plaintiff compensatory damages of $3,000.00, and punitive damages of $2,000.00.

Tenn. R. Civ. P. 55.01 requires that “all parties against whom a default judgment is

sought shall be served with a written notice of the application for judgment at least five days before

the hearing on the application, regardless of whether the party has made an appearance in the action.”

This is a departure from prior law, which stated that a party who had not appeared was not entitled

to notice. See Patterson v. Rockwell International, 665 S.W.2d 96 (Tenn. 1984). This rule was

amended, however, in 1996, due to the “liberal Tennessee case 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 Service that it was

served on Mr. Pemberton, defendant’s attorney in the criminal matter, but it was not served on

defendant. Pemberton nor any other attorney ever entered an appearance for defendant in this matter

until after the default judgment was entered. Tenn. R. Civ. P. 55.01 expressly states that the party1

“shall be served with a written notice of the application for judgment”. This Court has previously

held that a default judgment is improper where the defendant 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 189 (Tenn. Ct.

App. 2000) (“judge . . . may enter a default judgment . . . as long as proper notice of hearing on the

motion is given.”) The defendant in this case received neither.

Plaintiff contends that the notice to Pemberton was sufficient because Pemberton was

representing defendant in the criminal matter arising from the same incident. There is no evidence

that Pemberton ever represented defendant in this case. This Court has previously held that notice

sent to an attorney who previously represented a party in another matter is not sufficient notice to

the party. Jarvis v. Jarvis, 664 S.W.2d 694 (Tenn. Ct. App. 1983). We hold that service on an

attorney who is not representing a party in the case before the court, is not service upon the party.

In this case, while the attorney was not representing defendant in this case, he told defendant 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 that the Motion was properly

served upon defendant, which establishes a basis to vacate. See First Tennessee Bank Nat. Ass’n v.

McClure, 1990 Tenn. App. Lexis 48 (Tenn. Ct. App. Jan. 31, 1990); see also Nelson v. Simpson, 826

S.W.2d 483 (Tenn. Ct. App. 1991) (trial court should grant relief from default judgment when

plaintiff has failed to comply with required procedural safeguards).

Tenn. R. Civ. P. 55.02 states that a default judgment can be set aside for “good cause

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 “mistake, inadvertence, surprise or excusable neglect”. The

movant has the burden of setting forth facts sufficient to explain why the movant was justified 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 should be

liberally construed, however, when a party is seeking relief from a default judgment, and the court

should look to “whether the default was willful 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 default judgment aside should also demonstrate

that he had a meritorious defense 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 default 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 judgment would

prejudice the plaintiff. As this Court has previously recognized, “[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 the 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 not setting aside the Default Judgment, and we vacate the Default Judgment and remand for
-4-

further proceedings consistent with this Opinion.

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

_________________________

HERSCHEL PICKENS FRANKS, J.