Brookridge Apartments., Ltd. v. Universal Constructors, Inc. - Concurring ( 1998 )

FILED
BRO OKR IDGE APA RTM ENT S, LTD ., ) August 5, 1998
)
Plaintiff-A ppellant, ) Cecil W. Crowson
) Appellate Court Clerk
v. ) Appeal No.
) 01A01-9709-CV-00523
UNIV ERS AL C ONS TRU CTO RS, IN C.,)
BAD GER -BOG LE AR CHIT ECTS , P.C.,) Dav idson Circ uit
BOYD BOGLE, III, and GEORGE ) No. 90C-2821
VOLAK, )
)
Defendants-Appellees. )
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEALED FROM THE THIRD CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE BARBARA HAYNES, JUDGE
JOHN H. ROWLAND and SCOTT D. CAREY, BAKER
DONELSON, BEARMAN & CALDW ELL
A Professional Corporation
1700 Nashville City Center
511 Union Street
Nashville, Tennessee 37219
For Plaintiff -Appellan t.
DARRELL G. TOWNSEND and DERRICK C. SMITH
HOWELL & FISHER, PLLC
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
For Defendant-Appellee Universal Constructors, Inc.
JOHN W. HEACOCK
2100 First Union Tower
150 Fou rth Aven ue, North
Nashville, Tennessee 37219
For Defendant-Appellee Badger-Bogle Architects, P.C., Boyd Bogle, III, and
Georg e Vola k.
AFFIRMED AND REMANDED
HERSCHEL P. FRANKS, JUDGE
CONCUR:
GODD ARD, P.J.
McMU RRAY, J.
Plaintiff appeals to this Court on the refusal by the Trial Judge to grant
plaintiff relief pursuant to Tennessee Rules of Procedure, 60.02(1). The underlying
action was dismissed on July 23, 1996 by the Trial Judge “for want of prosecution.”
On July 18, 1 997, plaintiff filed a mo tion to set aside the judgm ent pursua nt to Rule
60, T.R.C.P. on the ground the judgment was entered because of mistake,
inadvertence, and excusable neglect. The motion explained that the plaintiffs “former
counsel William J. Hart, did not receive notice from the Court that the case would be
dismiss ed for la ck of p rosecu tion pu rsuant to local R ule 37.0 2.”
By way o f back groun d, the or iginal ac tion wa s filed o n Aug ust 20, 1 990.
On Au gust 22, 19 94, an orde r was ente red to either se t the case fo r trial or obtain
permission to be exempt from the Court’s local “one-year rule.” On September 22,
1994, attorney William J. Hart, attorney of record for the plaintiff, filed a motion for
an exemption and an order of exemption was entered on November 8, 1994. On
October 27, 1995, the Clerk again mailed a notice to the attorneys for the parties that
the case must be sent for trial or application must be made for an exemption from the
local Rule. On November 17, 1995, attorney George M. Allen filed a motion on
behalf of the plaintiff for an exemption from the local Rule. The motion was not acted
upon and on July 23, 1996, the case was ordered dismissed by the Trial Judge for
failure to comp ly with the local R ules of Court.
On July 18, 1997, plaintiff filed a motion to substitute the law firm of
Baker, Donelson, Bearman and Caldwell for attorney William J. Hart, as counsel of
record in the case, and also filed the motion to set aside the judgment. The motion
appended the affidavit of George M. Allen, who stated that he was attorney and that
William J. Hart had sought his help in the case, since Hart was leaving the practice of
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law and moving to Texas. He reiterated that he filed a motion on behalf of the
plaintiff on December 1, 1995, moving for an exemption from the one-year rule. He
further stated that he did not formally enter an appearance on behalf of the plaintiff,
that no action was taken on his motions, and that he first learned that the case had
been dismissed on September 10, 1996 from a phone call from William J. Hart who
had receiv ed a statem ent of costs on Septem ber 6, 1996 , from the D avidson C ounty
Clerk’s office. The affidavit of William J. Hart was also attached wherein he stated he
had practiced law in T ennessee from 1 992, until 1994, and w as an attorney of record
for the plaintiff in the original case. He further stated that in 1995 he moved to Texas
and “sought George M. Allen’s help in this case.” He then reiterated that he received
a statement of costs in the case on September 6, 1996, called the Clerk and for the first
time learned it had been dismissed on July 23, 1996 for lack of prosecution. He
denied receiving any notice of impending dismissal for lack of prosecution, and
concluded that he was no longer practicing law.
Plaintiff forcibly insists that the neglect of its former counsel should be
characterized as “excusable neglect” within the meaning of the Rule, and relies on
Campbell v. Archer, 555 S.W.2d 110 (Tenn. 1977). Relief in Archer was gran ted in
response to a Rule 59, T.R.C.P. motion. Rule 60, provides a procedure to be
employed w hen a judg ment has b ecome f inal and relief under that R ule is
extraor dinary in n ature. See Bivins v. Hospital Corp. of America, 910 S.W.2d 441(Tenn. App. 1995). Under this Rule, the party seeking relief bears a heavy burden of
demonstrating that they are entitled to relief, and while in some limited circumstances
negligenc e of the pa rties’ counse l has been f ound to b e excusab le neglect, it is
generally held th at negligen ce of cou nsel may not b e characteriz ed as excu sable
neglec t. See First National Bank of Polk County v. Gross, 912 S.W.2d 147 (Tenn.
App. 19 95); Kilby v. Sivley, 745 S.W .2d 284 (T enn. Ap p. 1987); Fielder v. L akesite
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Enterp rises, Inc ., 871 S.W.2d 157 (Tenn. App. 1993). Indeed, our Supreme Court has
said “ca relessne ss is not s ynonymo us with an exc usable neglec t”, Food Lion Inc., v.
Washington County Beer Board , 700 S .W.2d 893 (T enn. 19 85).
In the underlying case, it is beyond dispute that plaintiff’s attorney of
record left the jurisdiction without properly arranging for substitute counsel. The
dismissal of this case w as the result of plaintiff’s attorn ey’s failure to pro perly
represent h is client. This, in o ur view, is n ot excusab le neglect. T he Sixth C ircuit
Court of Appeals in The United States of America v. $100,375.00 in U.S. Currency, 70
F.3d 438 (1995), qu oted from one of its fe llow circuits, w hich we a lso quote w ith
approva l:
If the lawyer’s neglect protected the client from all ill consequences,
neglect would become all too common. It would be a free good - the
neglect would protect the client, and because the client could not suffer
the lawyer would no t suffer either.
15 F.3d 634.
We hold that the neglect of plaintiff’s counsel is not excusable neglect
within the meaning of Rule 60, and we find that the Trial Judge did not abuse her
discretion in refusing to reinstatement this case which had languished on the docket
for several years.
We have considered the remaining issues and find them to be without
merit, and remand the case to the Trial Court with cost of the appeal assessed to the
appellant.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Houston M. Godd ard, P.J.
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___________________________
Don T. McM urray, J.
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