In Re: Maverick H., Samantha Ann Moore, a/k/a Michelle M. Hartmen v. Mark W. Givler ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Submitted on Briefs, December 12, 2009
IN RE: MAVERICK H., SAMANTHA ANN MOORE, a/k/a MICHELLE M.
HARTMAN, v. MARK W. GIVLER
Appeal from the Chancery Court for Blount County
No. 05-134 Hon. Telford E. Forgety, Chancellor
No. E2009-00253-COA-R3-CV - FILED FEBRUARY 24, 2010
In this action to establish paternity and recover back child support, plaintiff did not appear
when the case was set for trial and the Trial Judge dismissed the action. Plaintiff then filed
a Rule 60 motion to reinstate the case to the trial docket, which the Trial Judge denied. On
appeal, we affirm the Judgment of the Trial Court.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.
H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and. D. M ICHAEL S WINEY, J., joined.
Thomas F. Mabry, Knoxville, Tennessee, for the appellant, Alanna Christy Daniels Howe.
OPINION
Plaintiff's Complaint alleges that she is a resident of Florida and brought this action to
determine paternity and establish an order for child support. She alleged the child was born on
November 23, 1987, and that defendant, Mark Givler, was the father. She alleged Givler was a
resident of Blount County, and she filed the Complaint on September 12, 2005, just a few months
before the child’s 18th birthday. Givler answered, and stated that a paternity test had been done
which showed him to be the father of the child, and he admitted paternity, but denied that plaintiff
was entitled to retroactive child support.
Subsequently, the Trial Court entered an Order of Dismissal on August 9, 2007, stating that
the case was set for trial on August 7, and that defendant appeared but plaintiff did not. The action
was dismissed on the ground that plaintiff failed to prosecute. A few days later, plaintiff filed a
Motion to Set Aside Judgment and for a New Trial pursuant to Tenn. R. Civ. P. 60.02. She stated
there was a “discussion” of setting the case on August 7, but that this was to be contingent on the
parties completing mediation, which was never done. Plaintiff stated her attorney thought the hearing
would be taken off the docket if the mediation was not done. Plaintiff also stated her attorney
received a letter from the Clerk and Master sent August 1 advising the docket sounding would be
September 4, and she presumed from the letter that the case would be reset on that docket sounding
date. Plaintiff’s attorney filed an affidavit affirming the facts set forth in the motion.
The Court entered an Order denying plaintiff’s motion, “based on the pleadings filed herein,
the history of the litigation and the multiple times the case has been reset and the failure of the
Plaintiff and her counsel to appear for the hearing”. On appeal, plaintiff raises the issue of whether
the Trial Court erred in dismissing plaintiff's claim?
Dismissals under Tenn. R. Civ. P. 41 are reviewed under an abuse of discretion standard, as
are denials of Tenn. R. Civ. P. 60 motions. Underwood v. Zurich Ins. Co., 854 S.W.2d 94 (Tenn.
1993); Manufacturers Consolidation Service, Inc. v. Rodell, 42 S.W.3d 846 (Tenn. Ct. App. 2000).
A trial court abuses its discretion only when it applies an incorrect legal standard, or reaches
a decision which is against logic or reasoning that causes an injustice to the party complaining.
Walker v. Nissan North America, Inc., 2009 WL 2589089 (Tenn. Ct. App. Aug. 21, 2009). Under
this standard, we may not substitute our judgment for that of the trial court, and a trial court’s ruling
“will be upheld so long as reasonable minds can disagree as to propriety of the decision made.” Id.Moreover, the party seeking relief has the burden of proof. Pryor v. Rivergate Meadows Apartment
Assoc. Ltd. P’ship., 2009 WL1181343 (Tenn. Ct. App. May 1, 2009).
We conclude plaintiff has presented insufficient proof to show the Trial Court applied an
incorrect legal standard, or reached a decision that is against logic or reasoning. Plaintiff’s counsel
filed an affidavit claiming to have understood that the hearing would be continued if mediation was
not complete. He received notice from the Court of a September docket sounding, which led him
to presume that the hearing would be set at that time. The Trial Court reviewed the affidavit but ruled
that the dismissal should stand, based on the history of the litigation and the multiple times the case
had been reset. The record does not disclose how many times it had been reset, and whether
mediation was ordered before the trial could be held, etc. In short, the record is simply insufficient
to show that the Trial Court abused its discretion.
We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed
to Samantha Ann Moore.
_________________________________
HERSCHEL PICKENS FRANKS, P.J.
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