Brookridge Apartments., Ltd. v. Universal Constructors, Inc. - Concurring

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 *3 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 *4 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.

___________________________ Don T. McM urray, J.