                                                                                                  11/28/2017
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                               Assigned on Briefs October 2, 2017

                                          IN RE CHLOE C.

                      Appeal from the Juvenile Court for Wilson County
                        No. 2014-DR-59 John Thomas Gwin, Judge
                          ___________________________________

                                 No. M2017-00612-COA-R3-JV
                             ___________________________________


       The trial court denied Appellant’s motion to set aside a default judgment in this
parentage action. Because Appellant was not properly served notice of the default
judgment under Rule 55.01 of the Tennessee Rules of Civil Procedure, we reverse and
remand the trial court’s decision for further proceedings pursuant to this opinion.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

C. Tracey Parks, Lebanon, Tennessee, for the appellant, Wallace A.

Amanda G. Crowell, Lebanon, Tennessee, for the appellee, Kristina C.

                                        MEMORANDUM OPINION1

                                              Background


1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
       This case arises from the trial court’s denial of a motion to set aside a default
judgment by Respondent/Appellant Wallace A. (“Appellant”).2 Petitioner/Appellee
Kristina C. (“Mother”) gave birth in June 2007, to the child at issue and subsequently
named Appellant as the child’s biological father.

       Mother filed a petition against Appellant to establish paternity and set child
support on October 29, 2014. Service was unsuccessfully attempted on Appellant three
times at 4142 Erie Church Road, Bedford, Indiana 47421, an address provided by
Appellant. On the third attempt, it was determined that Appellant was residing in the
Branchville Correctional Facility in Branchville, Indiana. Appellant was properly served
the petition on December 15, 2014, at the Branchville Correctional Facility.

        On December 16, 2014, Appellant prepared a handwritten letter stating that he: (1)
was currently incarcerated at Branchville Correctional Facility; (2) had “no objection to
Paternity being established”; and (3) requested the court to provide him with a
“substantial amount of time to be released and defend [him]self.” The trial court received
this letter on December 19, 2014. Appellant filed a second letter with the court on
January 26, 2015, again stating that he was incarcerated and unable to afford counsel and
requesting a DNA test to determine paternity of the child.

       No further action was taken on the case until December 7, 2016, when Mother
filed a motion for default judgment. A hearing for this motion was set for January 5,
2017, at 1:00 p.m. A certificate of service attached to the motion indicated that the
motion was mailed to Appellant at 4142 Erie Church Road, Bedford, Indiana 47421 on
December 7, 2016. However, the motion was ultimately returned to sender as “not
deliverable as addressed unable to forward” on January 1, 2017.

       In the meantime, Appellant remained incarcerated at Branchville until September
15, 2015, when he was placed on home detention. Appellant remained on home
detention for four and a half months. During that time, Appellant communicated with
Mother’s attorney informing her that he could not leave Indiana and wished to have a
DNA test to determine paternity. On January 9, 2016, however, Appellant was again
incarcerated at Plainfield Stop Facility until October 6, 2016.3 Appellant was
subsequently released later in October 2016, but was incarcerated again on November 5,
2016, for a parole violation. He remained incarcerated in the Lawrence County Jail in
Bedford, Indiana, until February 23, 2017.

        While residing at the Lawrence County Jail, Appellant wrote a third letter to the
trial court, dated November 17, 2016. This letter was filed by the trial court on January

        2
         In cases originating from juvenile court, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.
       3
         The record contains no further information about this particular period of incarceration.
                                                 -2-
3, 2017. In his letter, Appellant again stated that he was requesting that a DNA test be
ordered to determine the child’s paternity. He also asserted that he did not acknowledge
that the child is his biological child, further explaining his reasoning for that assertion.
Importantly, Appellant’s letter stated that he was currently incarcerated at the Lawrence
County Jail, was unsure of his release date, and was indigent. Finally, Appellant noted:
“if advised as to which laboratory in the state of Indiana your court will accept result
from I will go once released from jail to have test performed. Unless the State of Indiana
Correctional Facility can perform such a test satisfactory to Tennessee courts.”
Additionally, Appellant marked through the Erie Church Road address on the letter as a
possible way to reach him.

       The trial court entered a final default judgment on January 11, 2017. The order
established paternity and child support. Specifically the order stated:

       On December 7, 2016, Mother filed Motion for Final Default Judgment and
       set the matter for a Final Hearing on January 5, 2017, at 1:00 p.m. Mother,
       through counsel, mailed copy of the Motion for Final Default Judgment to
       [Appellant] by United States Mail on December 7, 2016 at 4142 Erie
       Church Road, Bedford, Indiana 47421. [Appellant]’s copy of the Motion
       was returned as “non-deliverable as addressed, unable to forward”.
       [Appellant] has not provided any other address to the court or to Mother’s
       counsel.

Based upon the finding of paternity, Appellant was ordered to pay child support
arrearages totaling $75,582.00, as well as attorney’s fees.

      Appellant, by and through counsel, filed a notice of appearance and an answer on
February 10, 2017. Appellant also filed a motion to set aside default judgment on the
same day, with a hearing scheduled for March 2, 2017. The trial court denied Appellant’s
motion to set aside on March 8, 2017. Appellant now appeals.

                                        Discussion

       There is a single issue in this appeal: Whether the trial court erred in refusing to
grant Appellant’s motion to set aside the default judgment. From our review of the
record, we agree that the trial court erred in this case.

        A trial court’s entry of a default judgment along with its refusal to set aside the
judgment pursuant to Rule 55.02 and 60.02 of the Tennessee Rules of Civil Procedure is
reviewed under an abuse of discretion standard. Decker v. Nance, No. E2005-2248-
COA-R3-CV, 2006 WL 1132048, at *2 (Tenn. Ct. App. Apr. 28, 2006). A trial court
abuses its discretion only when it “applie[s] incorrect legal standards, reache[s] an
illogical conclusion, base[s] its decision on a clearly erroneous assessment of the
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evidence, or employ[s] reasoning that causes an injustice to the complaining party.”
Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012) (quoting State v. Banks,
271 S.W.3d 90, 116 (Tenn. 2008)).

       Appellant asserts that that the trial court abused its discretion in denying his
motion to set aside default judgment “as the record shows the Appellant was not properly
served notice” under Rule 55.01 of the Tennessee Rules of Civil Procedure. We agree.
Rule 55 of the Tennessee Rules of Civil Procedure governs default judgments. See
generally Tenn. R. Civ. P. 55.01–55.04. “When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by these
rules and that fact is made to appear by affidavit or otherwise, judgment by default may
be entered[.]”Tenn. R. Civ. P. 55.01. “‘A judgment by default is generally considered an
admission of all the properly pleaded material allegations of fact in the complaint, except
the amount of unliquidated damages.’” H.G. Hill Realty Co. v. Re/Max Carriage House,
Inc., 428 S.W.3d 23, 30 (Tenn. Ct. App. 2013) (quoting State ex rel. Jones v. Looper, 86
S.W.3d 189, 194 (Tenn. Ct. App. 2000)) (footnote omitted). As such, a default judgment
disposes of the cases as definitively as a trial on the merits. See Estate of Vanleer v.
Harakas, No. M2001-00687-COA-R3-CV, 2002 WL 32332191, at *6 (Tenn. Ct. App.
Dec. 5, 2002).

       Rule 55.01, however, contains certain requirements regarding the procedure
necessary to obtain a default judgment:

       Except for cases where service was properly made by publication, all
       parties against whom a default judgment is sought shall be served with a
       written notice of the application at least five days before the hearing on the
       application, regardless of whether the party has made an appearance in the
       action.

Tenn. R. Civ. P. 55.01. Rule 55.02 also allows a court to set aside a judgment of default
in accordance with Rule 60.02. See Tenn. R. Civ. P. 55.02 (“For good cause shown the
court may set aside a judgment by default in accordance with Rule 60.02.”). Rule 60.02
provides that

       On motion and upon such terms as are just, the court may relieve a party or
       the party’s legal representative from a final judgment, order or proceeding
       for the following reasons: (1) mistake, inadvertence, surprise or excusable
       neglect . . . (5) any other reason justifying relief from the operation of the
       judgment. The motion shall be made within a reasonable time, and for
       reasons (1) and (2) not more than one year after the judgment, order or
       proceeding was entered or taken.


                                           -4-
Tenn. R. Civ. P. 60.02. “‘Mistake, surprise or excusable neglect’ may be established
where a defaulting party receives ‘no actual notice of a critical date in a court
proceeding.’” Husk v. Thompson, No. M2016-01481-COA-R3-CV, 2017 WL 3432686,
at *3 (Tenn. Ct. App. Aug. 10, 2017) (quoting Harakas, 2002 WL 32332191, at *6).

        “[D]efault judgments are drastic sanctions”, therefore, “[n]either dismissals nor
default judgments are favored by the courts.” Beck v. Beck, No. W2011-01806-COA-
R3CV, 2012 WL 1656228, at *8 (Tenn. Ct. App. May 11, 2012) (internal citations
omitted); see Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863 (Tenn. 1985)
(quoting Secs. & Exch. Comm’n v. Seaboard Corp., 666 F.2d 414 (9th Cir. 1982))
(“‘Since the interests of justice are best served by a trial on the merits, only after a careful
study of all relevant considerations should courts refuse to open default judgments.’”).
Thus, “[m]otions to set aside default judgments are not viewed with the same strictness
that motions to set aside judgments after a hearing on the merits are viewed” and “such
motions are construed liberally in favor of granting the relief requested.” Decker, 2006
WL 1132048, at *2; see also Beck, 2012 WL 1656228, at *8 (citing Henry v. Goins, 104
S.W.3d 475, 481 (Tenn. 2003)) (“Courts construe requests for relief pursuant to Rule
60.02 much more liberally in cases involving default judgment than in cases following a
trial on the merits.”). Therefore, “a request to vacate a default judgment in accordance
with Rule 60.02 should be granted if there is reasonable doubt as to the justness of
dismissing the case before it can be heard on its merits.” Beck, 2012 WL 1656228, at *8
(citing Henry v. Goins, 104 S.W.3d 475, 481 (Tenn. 2003)). The court is especially
warranted to take “‘[s]uch liberality . . . when an order of dismissal is entered with
prejudice and without such procedural safeguards as notice, considering that Rule 55.01
of the Tennessee Rules of Civil Procedure requires notice to be given before a default
judgment is granted.’” Beck, 2012 WL 1656228, at *8 (quoting Henry, 104 S.W.3d at
481). Therefore, “[t]he trial court should grant relief when the plaintiff has failed to
comply with required procedural safeguards.” Decker, 2006 WL 1132048, at *3.

        Appellant argues that the trial court erred in refusing to set aside the default
judgment where he was not provided notice of the hearing on the motion for default
within the time provided by Rule 55.01. Because the required procedural safeguards were
not followed, Appellant asserts that it was an abuse of discretion for the trial court to
deny his motion to set aside the default judgment. Here, it is undisputed that Mother
attempted to serve Appellant at the address previously given by Appellant. The service,
however, was unsuccessful. In addition, it is also undisputed that Appellant mailed a
letter to the trial court indicating that he no longer resided at the Erie Church Road
address; rather, Appellant clearly stated that he was incarcerated in Indiana at that time
and did not know his release date. Despite this letter, it is also undisputed that Mother
made no attempt to serve Appellant with notice of the hearing on the motion for default
judgment at his place of incarceration in Indiana. As such, Appellant asserts that the
record reflects that he did not receive actual notice of the hearing on the motion for
default judgment, as required by the plain language of Rule 55.01. See Tenn. R. Civ. P.
                                            -5-
55.01 (requiring five days’ notice of the hearing on the motion for default judgment).
According to Appellant, as a result, the default judgment must be set aside.

        Mother asserts that the notice in this case was proper because she utilized the
address provided by Appellant when he was released from incarceration in October 2016.
Although we are certainly sympathetic to Mother’s desire to expedite these proceedings,
we simply cannot agree that notice was proper in this case. Here, the notice mailed to the
Erie Church Road address was returned undelivered on January 1, 2017. As such, it
appears that Mother had notice prior to the hearing on the motion for default that
Appellant did not have proper notice of the pending default judgment motion. Further,
the record contains a letter in which Appellant specifically informs both Mother and the
trial court that the Erie Church Road address is not proper and that he can instead be
found at the Lawrence County Jail. Appellant’s letter was received by the trial court, at
the latest, on January 3, 2017, prior to the hearing on the motion for default and well
before the trial court entered its order granting the default judgment to Mother. Curiously,
this letter is not mentioned in Mother’s brief, the trial court’s January 11, 2017 order
granting the default judgment, or the trial court’s March 8, 2017 order denying
Appellant’s motion to set aside the judgment. Indeed, the trial court specifically stated in
its order granting the default judgment that Appellant “has not provided any other address
to the court or to Mother’s counsel.” Respectfully, this finding is clearly erroneous as the
record on appeal clearly shows that the trial court received Appellant’s notice that he was
incarcerated well before the entry of this order. See Discover Bank, 363 S.W.3d at 487
(quoting Banks, 271 S.W.3d at 116) (holding that a court abuses its discretion when it
“based its decision on a clearly erroneous assessment of the evidence”).

       Although the record indicates that Appellant did at some point receive notice of
the default judgment,4 there is “reasonable doubt” as to whether Appellant received
notice of the motion for default judgment five days prior to the January 5, 2017 hearing,
as required by Rule 55.01. Beck, 2012 WL 1656228, at *8. This Court has held that the
five-day notice requirement in Rule 55.01 is clear, unambiguous, and mandatory. See
Decker, 2006 WL 1132048, at *3 (citing Churney v. Churney, 1993 WL 273891 (Tenn.
Ct. App. July 22, 1993)). As such, “[a] default judgment should be vacated when the
record indicates that the motion for default judgment was not served on the defendant in
compliance with Rule 55.01.” Decker, 2006 WL 1132048, at *3 (citing First Tenn. Bank
Nat. Ass’n v. McClure, 1990 WL 6378 (Tenn. Ct. App. Jan. 31, 1990)).

      In similar circumstances, this Court has held that it is error for the trial court to
deny a motion to set aside a default judgment. See Beck, 2012 WL 1656228, at *8
(“Because [defendant] received no notice of the hearing, and because she did not have the

       4
         It is not clear how or when Appellant received this notice, as the letter filed January 3, 2017
informing the trial court of the change in Appellant’s address appears to have been drafted in November
2016, well before Mother filed her motion for default judgment.
                                                 -6-
opportunity to present her case, we conclude that it would have been error for the trial
court to deny her Rule 60 relief.”); see also Decker, 2006 WL 1132048, at *3 (holding
that the trial court abused its discretion in refusing to set aside the default judgment when
the defendant did not get at least five days’ notice prior to the hearing on the default
judgment motion). Moreover, despite Mother’s assertion otherwise, the failure of notice
under Rule 55.01 excuses Appellant from the other requirements for relief under Rule
55.01, specifically the requirement that Appellant assert a meritorious defense. See
Decker, 2006 WL 1132048, at *3 (holding that the plaintiff’s failure to follow the
procedural requirements of Rule 55.01 excused the defendant from showing a meritorious
defense). The trial court therefore erred in denying Appellant’s motion to set aside the
default judgment.

                                        Conclusion

       The judgment of the Wilson County Juvenile Court is reversed and this cause is
remanded for further proceedings pursuant to the opinion. The costs of this appeal are
taxed to Appellee Kristina C., for all of which execution may issue if necessary.




                                                  _________________________________
                                                  J. STEVEN STAFFORD, JUDGE




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