                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  AUGUST 20, 2008 Session

                 REGINA F. ANDERSON v. ALFRED ANDERSON

                   Direct Appeal from the Circuit Court for Shelby County
                        No. CT-004755-04     James F. Russell, Judge



                   No. W2007-01220-COA-R3-CV - Filed December 17, 2008


In this appeal, we are asked to determine whether the trial court erred in granting, and then failing
to set aside, its Order of Judgment against Appellant. Appellant contends that he did not receive
notice that his case was set for trial, as the court clerk failed to enter his address into the computer
system, although it was provided in his Answer. In his Motion to Set Aside Default Judgment,
Appellant sought relief pursuant to Tennessee Rule of Civil Procedure 60.01. However, in his brief,
Appellant argues that the Judgment should be set aside pursuant to Tennessee Rules of Civil
Procedure 55.02, 60.01, and 60.02. Because Appellant did not raise Rule 55.02 before the trial court,
and because a default judgment was not issued against Appellant, Rule 55.02 relief is inappropriate.
Moreover, although Appellant raised Rule 60.01 before the trial court, the error alleged by Appellant
is not a “clerical error” within the meaning of Rule 60.01. Finally, Appellant did not seek Rule 60.02
relief by motion, as required by the Rule, nor did he raise Rule 60.02 before the trial court . Thus,
we affirm the decision of the circuit court. Additionally, we decline to find Appellant’s appeal
frivolous or to require Appellee to pay the costs associated with this appeal.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R. FARMER , J.,
joined, and HOLLY M. KIRBY , J., dissented.

Alfred Anderson, Cordova, TN, pro se

Herschel L. Rosenberg, Memphis, TN, for Appellee
                                                  OPINION

                                  I. FACTS & PROCEDURAL HISTORY

       On August 1, 2001, Alfred Anderson (Appellant) executed a promissory note (“Note”),
wherein he agreed to pay to Regina Anderson (Appellee) sixty thousand dollars, principal, plus six
percent per annum interest. Although Appellant denies receiving such, Appellee contends that her
counsel sent Appellant a letter, dated May 11, 2004, notifying Appellant that Appellee was calling
the Note due and demanding immediate payment in full. On August 17, 2004, Appellee filed a
Complaint for Monies Owed against Appellant claiming that Appellant “ha[d] refused to make any
payments in regards to [the] Note.” Because Appellant failed to file an answer, Appellee filed a
Motion for Default on October 4, 2004. Subsequently, on October 18, 2004, Appellant filed an
Answer to Complaint for Monies Owed, acknowledging that he owed the money, but denying that
he had refused to make payments. Appellant further noted that at the Note’s execution no re-
payment arrangement was made as “the loan was given as a long-term investment with no
expectation of monthly repayment for several years.”

         Appellee’s case was set for trial on April 25, 2007. However, Appellant failed to appear as
he claims he received no notice of the trial setting. Instead, Appellant claims that on the morning
of trial, Appellee’s attorney approached an attorney, Ms. Martin, who had previously represented
Appellant in other matters as well as in his deposition in this case, and told her that he was preparing
to enter the courtroom in Appellee’s and Appellant’s matter. Ms. Martin informed Appellee’s
attorney that she did not represent Appellant and immediately telephoned Appellant, who was acting
pro se, to inform him of the trial setting. According to Ms. Martin’s Affidavit, she was asked to
address the trial court and informed the court that she did not represent Appellant. Ms. Martin’s
Affidavit also noted her belief that she “advised the trial court that Mr. Anderson claimed he did not
have notice of the hearing.”

        Despite Appellant’s absence, the trial court proceeded with the scheduled trial. After hearing
Appellee’s testimony and being presented with the Note, the court entered an Order of Judgment
(sometimes hereinafter “Judgment”), on May 3, 2007, awarding Appellee $99,087.50 plus costs,
representing the remaining principal of $59,000, plus $20,270 interest, and $19,817.50 in attorney’s
fees. Before the trial court entered the Order of Judgment, Appellant, on April 26, 2007, filed a
Motion to Set Aside Default Judgment (sometimes hereinafter “Motion”),1 claiming that “a clerical
error was made when the court’s records indicated that [Appellant] was mailed a notice on February
22, 2007[,] to appear in court on April 25, 2007, when no such notice was mailed.” Appellant
further claimed that he “spoke with Mr. Wayne Conner, an administrator in the Circuit Court Clerk’s
Office, and [Mr. Conner] stated that no such notice was mailed to defendant due to the fact that the
clerk’s office ha[d] no address on file for [Appellant].” At oral argument on appeal, Appellant



        1
          The Technical Record contains no document entitled Default Judgment. There is no indication, other than
from the Appellant, that a default was taken against Appellant.


                                                      -2-
explained that although he provided his address in his Answer, the clerk’s office failed to input his
address into the computer system, therefore causing no notice to be sent to Appellant.

        Appellant filed a Notice of Appeal to this Court, on June 1, 2007, attempting to appeal from
the Order of Judgment entered May 3, 2007, and an Order Denying Defendants’ Request for Motion
to Set Aside Judgment was entered May 11, 2007.2

                                          II. ISSUES PRESENTED

     Appellant has timely filed his notice of appeal and presents the following issues for review,
summarized as follows:

1.      Whether the Circuit Court erred in granting, and then failing to set aside, the Order of
        Judgment when Appellant failed to receive notice of the trial setting.
2.      Whether Appellee should pay all costs associated with Appellant’s appeal.

Additionally, Appellee presents the following issue for review:

3.      Whether Appellant’s appeal is frivolous.

For the following reasons, we affirm the decision of the circuit court.

                                       III.   STANDARD OF REVIEW

        “The denial of a motion to set aside a judgment pursuant to Rules 60.01 or 60.02 of the
Tennessee Rules of Civil Procedure is reviewed on an abuse of discretion standard.” Smith v. Shaw,
No. W2004-01772-COA-R3-CV, 2005 WL 1323294, at *2 (Tenn. Ct. App. June 3, 2005) (citing
Howell v. Tucker, No. W2002-0222-COA-R3-CV, 2003 WL 22213215, at *2 (Tenn. Ct. App. Sept.
24, 2003); Bowers v. Gutterguard of Tennessee, Inc., No. M2002-02877-COA-R3-CV, 2003 WL
22994302, at *2 (Tenn. Ct. App. Dec. 17, 2003)). Likewise, a trial court’s denial of a motion to set
aside a default judgment, pursuant to Tennessee Rule of Civil Procedure 55.02, is reviewed under
the abuse of discretion standard. First Union Nat’l Bank of Tenn. v. Abercrombie, No. M2001-
01379-COA-R3-CV, 2003 WL 22251347, at *3 (Tenn. Ct. App. Oct. 2, 2003) (citing State ex rel.
Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000); Shahrdar v. Global Hous., Inc., 983
S.W.2d 230, 237 (Tenn. Ct. App. 1998)). Under the abuse of discretion standard, we must:
                 uphold a trial court’s ruling as long as reasonable minds could
                 disagree about its correctness, Eldridge v. Eldridge, 42 S.W.3d 82, 85
                 (Tenn. 2001); Beason v. Beason, 120 S.W.3d [833, 839 (Tenn. Ct.
                 App. 2003)], and will set the ruling aside only when the trial court has
                 applied an incorrect legal standard or has reached a decision which is

        2
           The Technical Record does not contain a document entitled Order Denying Defendant’s Request for Motion
to Set Aside Judgment. It appears Appellant’s Motion was denied, but no order effecting such was entered.


                                                      -3-
               against logic and reason that causes an injustice to the moving party.
               Henry v. Goins, 104 S.W.3d [475, 479 (Tenn. 2003)]; State ex rel.
               Russell v. West, 115 S.W.3d 886, 889-90 (Tenn. Ct. App. 2003).


Dockery v. State, No. M2006-00014-COA-R3-CV, 2007 WL 2198195, at *2 (Tenn. Ct. App. July
23, 2007).


                                          IV. DISCUSSION
                                     A.    Order of Judgment
        On appeal, Appellant asserts that the circuit court erred when it granted, and then refused to
set aside, the Order of Judgment, as Appellant failed to receive notice of the trial setting. To
determine whether the trial judge abused his discretion, we look to the rules under which Appellant
seeks relief.


                          1.   Tennessee Rule of Civil Procedure 60.02
       In his brief, Appellant relies on Tennessee Rule of Civil Procedure 60.02 to support his
contention that he is entitled to relief from the Order of Judgment. Tennessee Rule of Civil
Procedure 60.02 “provides an exceptional remedy that enables parties to obtain relief from a final
judgment.” Dockery, 2007 WL 2198195, at *2 (citing Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294
(Tenn. 1992); Hungerford v. State, 149 S.W.3d 72, 76 (Tenn. Ct. App. 2003)). The Rule states:
                       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; (2) fraud (whether
               heretofore denominated intrinsic or extrinsic), misrepresentation, or
               other misconduct of an adverse party; (3) the judgment is void; (4) the
               judgment has been satisfied, released or discharged, or a prior
               judgment upon which it is based has been reversed or otherwise
               vacated, or it is no longer equitable that a judgment should have
               prospective application; or (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.
Tenn. R. Civ. P. 60.02. Because Appellant seeks relief from a final judgment under Rule 60.02, he
carries the burden of proof. Henry, 104 S.W.3d at 482 (citing Federated Ins. Co. v. Lethcoe, 18
S.W.3d 621, 624 (Tenn. 2000); Banks v. Dement Constr. Co, 817 S.W.2d 16, 18 (Tenn. 1991)).
“The bar for obtaining relief is set very high, and the burden borne by the moving party is heavy.”
Dockery, 2007 WL 2198195, at *2 (citing Johnson v. Johnson, 37 S.W.3d 892, 895 (Tenn. 2001)).



                                                 -4-
        Although Appellant only relies generally on Tennessee Rule of Civil Procedure 60.02 and
does not expressly state which of the five grounds afford him relief, grounds one and five provide
the only possible avenues. To proceed under ground one “a party must present properly supported
facts explaining why he or she was justified in failing to avoid mistake, inadvertence, surprise or
neglect.” Id. at *3 (citing Travis, 686 S.W.2d at 70; Hopkins, 572 S.W.2d at 640, Turner v. Turner,
76 S.W.2d 88, 92 (Tenn. Ct. App. 1988)). In this appeal, Appellant argues that the Order of
Judgment should be set aside because he failed to receive notice of the trial setting. Tennessee courts
have found that failure to be apprised of court proceedings may justify relief under Tennessee Rule
of Civil Procedure 60.02(1). In Vines v. Gibson, 54 S.W.3d 291 (Tenn. Ct. App. 2001), this Court
held that the “record ‘[made] out a case of mistake, inadvertence, or excusable neglect, rather than
one of willful failure to appear[,]’” where neither the defendant, nor his attorney, received notice of
a bench trial in a breach of contract case. Vines, 54 S.W.3d at 295 (quoting Campbell v. Archer, 555
S.W.2d 110, 113 (Tenn. 1977)). Likewise, in Campbell, 555 S.W.2d at 112-13, our Supreme Court
found “mistake, inadvertence, or excusable neglect, rather than . . . willful failure to appear” where
defendants received no actual notice that their case had been set for trial. In making this
determination, the Supreme Court noted that the defendants were not at fault and that the plaintiffs
would suffer no prejudice if the judgments were set aside. Id.


        Even if Appellant was not at fault in failing to receive notice of the trial and Appellee would
not be prejudiced by setting aside the Order of Judgment, such that ground one’s “excusable neglect”
could be found, we find that Appellant cannot rely on Tennessee Rule of Civil Procedure 60.02(1)
as a basis for relief. Rule 60.02 creates a “hard line rule,” Matthews v. Shelby County Gov’t, No.
W2005-00470-COA-R3-CV, 2005 WL 2648331, at *2 (Tenn Ct. App. March 27, 2006) (citing
Wright v. Quillen, 75 S.W.3d 413, 418 (Tenn. Ct. App. 2001)), that motions pursuant to Rule 60.02
“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.” Tenn. R. Civ. P. 60.02.3 In the instant case,
Appellant’s Motion to Set Aside Default Judgment relied only on Tennessee Rule of Civil Procedure
60.01 as grounds for relief, stating that “a clerical error was made[.]” Not only did Appellant fail to
move for 60.02(1) relief within the required one year, but Appellant did not raise the issue of
60.02(1) relief before the trial court in any respect.4 Even “giv[ing] effect to the substance, rather
than form or terminology, of [this] pro se litigant’s papers[,]” Hessmer v. Hessmer, 138 S.W.3d 901
(Tenn. Ct. App. 2003) (citing Brown v. City of Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App.
1986); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977), we find that Appellant’s Motion

         3
          Alternatively, a trial court may sua sponte grant relief pursuant to Tennessee Rule of Civil Procedure 60.02(1),
without a motion; however, such action was not taken by the trial court in the case at bar. See Jerkins v. McKinney, 533
S.W .2d 275, 281 (Tenn. 1976).

         4
          In her dissent Judge Kirby states: “I am puzzled by the majority’s referral to the defendant’s motion as not
being filed with a reasonable time. From the record, it appears that his motion was filed the day after the April 25, 2007
hearing, and a week before the May 3,2007 written order memorializing the trial court’s oral ruling.” Judge Kirby is
correct that a TRCP Rule 60.01 motion was filed one day after the hearing, however, a TRCP Rule 60.02(1) motion was
not filed within one year as required by the rule nor was it ever considered by the trial court. It was raised for the first
time on appeal.


                                                            -5-
failed either to expressly claim relief under Tennessee Rule of Civil Procedure 60.02 or to utilize
language contained within such Rule. Thus, because “[i]t is a well settled principal of law that issues
not raised in the trial court cannot be raised on appeal[,]” Hunter v. Nationwide Mut. Fire Ins. Co.,
No. M2008-00434-COA-R3-CV, 2008 WL 4211665, at *3 (Tenn. Ct. App. Sept. 9, 2008) (citing
Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 152 (Tenn. 1991)), Appellant cannot rely
on Rule 60.02(1) as a basis for relief. That Appellant is acting pro se does not affect his inability to
utilize Rule 60.02(1), as Tennessee courts have held
               Parties who decide to represent themselves are entitled to fair and
               equal treatment by the courts. Whitaker v. Whirlpool Corp., 32
               S.W.3d 222, 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters
               Nat'l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). The
               courts should take into account that many pro se litigants have no
               legal training and little familiarity with the judicial system. Irvin v.
               City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App.1988).
               However, the courts must also be mindful of the boundary between
               fairness to a pro se litigant and unfairness to the pro se litigant's
               adversary. Thus, the courts must not excuse pro se litigants from
               complying with the same substantive and procedural rules that
               represented parties are expected to observe. Edmundson v. Pratt, 945
               S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912
               S.W.2d 728, 733 n.4 (Tenn. Ct. App. 1995).
Hessmer v. Hessmer 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).


        Appellant could also potentially utilize ground five as a basis for relief under Rule 60.02.
Ground five states that relief from a final judgment may be had for “any other reason justifying relief
from the operation of the judgment.” Tenn. R. Civ. P. 60.02(5). As with all grounds under Rule
60.02, the party attempting to modify the judgment must prove he or she is entitled to relief.
Federated Ins. Co., 18 S.W.3d at 624 (citing Banks, 817 S.W.2d at 18). Tennessee courts have
explained that Rule 60.02(5) “is to be construed quite narrowly,” Id. at 625 (citing Underwood v.
Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993)), as the “standards of Rule 60.02(5) are more
demanding than those applicable to the other grounds for relief under the rule.” Holly v. Holly, No.
M2007-02130-COA-R3-CV, 2008 WL 2695656, at *3 (Tenn. Ct. App. July 9, 2008). Additionally,
“[r]elief under Rule 60.02(5) is only appropriate in cases of overwhelming importance or in cases
involving extraordinary circumstances or extreme hardship.” Federated Ins. Co., 18 S.W.3d at 624
(citing Underwood, 854 S.W.2d at 97) (holding that “‘Rule 60.02(5) may not be used to relieve a
party of its free, calculated, and deliberate choices’”). Id. (quoting Banks, 817 S.W.2d at 19).


        As we noted above, Appellant’s Motion did not seek relief pursuant to Rule 60.02. Thus,
even if we were to find a “reason justifying relief from the operation of the judgment[,]” because




                                                  -6-
Appellant failed to move for such relief, and the trial court did not sua sponte alter its Judgment,5
Appellant is not entitled to relief pursuant to Rule 60.02(5).


                               2.    Tennessee Rule of Civil Procedure 60.01
        In his Motion, Appellant moved the trial court for relief from the Judgment pursuant to
Tennessee Rule of Civil Procedure 60.01 by claiming that “a clerical error was made when the
court’s records indicated that defendant was mailed a notice on February 22, 2007[,] to appear in
court on April 25, 2007, when no such notice was mailed.” Rule 60.01 states:
                          Clerical mistakes in judgments, orders or other parts of the
                  record, and errors therein arising from oversight or omissions, may be
                  corrected by the court at any time on its own initiative or on motion
                  of any party and after such notice, if any, as the court orders. During
                  the pendency of the appeal, such mistakes may be so corrected before
                  the appeal is docketed in the appellate court, and thereafter while the
                  appeal is pending may be so corrected with leave of the appellate
                  court.


Tenn. R. Civ. P. 60.01. In Tantaris v. Boehms, No. 89-178-II, 1989 WL 137853, at *4 (Tenn. Ct.
App. M.S. Nov. 17, 1989), this Court noted that “[o]ne of the most common problems [in applying
Rule 60] has been distinguishing between ‘clerical mistakes,’ addressed in Rule 60[.01], and
“mistake, inadvertence, surprise, or excusable neglect, addressed in Rule 60[.02].” However, our
courts have provided some guidance in making this determination.


        Rule 60.01 relief is appropriate to correct “clerical mistakes in judgments, orders or other
parts of the record[.]” Tenn. R. Civ. P. 60.01. Thus, after a Rule 60.01 correction, “a judgment still
exists.” J.W. Gibson Co. v. Eagle Instruments, Inc., No. 03A01-9809-CV-00312, 1999 WL
552879, at *2 (Tenn. Ct. App. July 28, 1999). “Rule 60.02, on the other hand, does not provide a
mechanism for correcting mistakes in judgments, but instead provides a mechanism for setting aside
judgments altogether.” Id. at n.1.


        In Jerkins, 533 S.W.2d at 280, our Supreme Court considered whether Rule 60.01 could
provide relief to a respondent, where the trial court issued an order denying respondent’s request for
a new trial, but the clerk failed to provide either party with a copy of such order, or even notify the
parties of its existence, until more than thirty days after its entry, thus precluding appeal. Id. at 277,


         5
             See Sellers v. Sellers, 221 S.W .3d 43, 48 (Tenn. Ct. App. 2006) (“W e see no reason that the trial court may
not . . . grant sua sponte relief under Rule 60.02(5) . . . .).




                                                           -7-
281. The court found that these failures “constituted excusable neglect justifying relief under Rule
60.02(1).” Id. at 281. However, the court stated:
                   We do not here deal with Rule 60.01, since this rule is designed to
                   afford relief in those character of cases wherein the judgment or
                   order, either standing alone, or when viewed in connection with other
                   portions of the record, shows facially that it contains errors arising
                   from oversight or omission.


Id. at 280 (emphasis added). Likewise, “[a]t least one Tennessee court has restated that proposition
to apply in those situations where an error in the drafting of a judgment ‘cause[s] the judgment to
fail to reflect the court’s ruling accurately.’” Tantaris, 1989 WL 137853, at *4 (quoting Addington
v. Staggs, No. 88-214-II, 1989 WL 5453, at *3 (Tenn. Ct. App. M.S. Jan. 27, 1989)).6 Furthermore,
a mistake in the “clerk’s office” does not automatically equate to a “clerical error” entitling a party
to relief under Rule 60.01. This Court stated in Zeitlin v. Zeitlin, 544 S.W.2d 103, 108 (Tenn. Ct.
App. 1976), that “[t]he words ‘clerical mistake’ do not particularly apply to every act of a person
denominated a ‘clerk.’ Rather it applies to mechanical errors of computation or copying by any
person, Clerk or otherwise.”


        In light of the previous applications of Rule 60.01, we find that Rule 60.01 was an improper
avenue for seeking relief in this case. Because the error Appellant attempts to correct is not a
“mechanical error of computation or copying,” a facial error evident from the face of the judgment,
or any other portion of the record, or an error that causes the judgment to fail to reflect the trial
court’s intention, we find that Rule 60.01 was an inappropriate motion in this case.


                                3. Tennessee Rule of Civil Procedure 55.02
        In his brief, Appellant, as a basis for setting aside the trial court’s Judgment, also relies on
Tennessee Rule of Civil Procedure 55.02, which states: “For good cause shown the court may set
aside a judgment by default in accordance with Rule 60.02.” Tenn. R. Civ. P. 55.02. Appellant’s
reliance on this rule is misplaced. Although Appellant filed a Motion to Set Aside Default Judgment
asking the trial court to set aside its “Default Judgment entered on April 25, 2007[,]" no such Default



         6
            See, e.g., Cont’l Cas. Co. v. Smith, 720 S.W .2d 48, 49-50 (Tenn. 1986) (correcting an employer’s name in
the judgment); Jahn v. Jahn, No. 03A01-9903-CH-00097, 2000 W L 134335, at *1-2 (Tenn. Ct. App. Feb. 4, 2000)
(correcting the trial judge’s mathematical error in awarding divorcing parties’ assets); Woods v. World Truck Transfer,
Inc., No. M1997-00068-COA-R3-CV, 1999 W L 1086462, at *5 (Tenn. Ct. App. Dec. 3, 1999) (correcting the record
to show that plaintiffs delivered their complaint and summonses to the clerk in a timely manner); Lautenbach v.
Lautenbach, Nos. 01-A01-9710-CH-00595, 01A01-9703-CH-00098, at *2 (Tenn. Ct. App. May 25, 1999) (correcting
the court’s error in switching the visitation of the parents to reflect the court’s original intention); Hobbs v. Hobbs, 987
S.W .2d 844, 848 (Tenn. Ct. App. 1998) (amending a divorce decree to show the grounds for divorce, which were
inadvertently excluded).


                                                            -8-
Judgment appears in the Record. Instead, the Judgment indicates that it was issued following a trial.
It provides in relevant part:
               The Court after being advised that Attorney, Venita Marie Martin,
               was not representing the Defendant, Alfred Anderson, and upon the
               testimony of the Plaintiff, Regina F. Anderson, evidence presented of
               the Promissory Note dated August 1, 2001, executed by the
               Defendant, Alfred Anderson . . . .
                      A judgment is hereby granted [o]n behalf [of] the Plaintiff,
               Regina F. Anderson against the Defendant, Alfred Anderson, in the
               amount of Ninety-nine Thousand Eighty-seven Dollars Fifty Cents
               ($99,087.50) . . . .


        “A party’s lack of attendance at trial does not convert a judgment into a default judgment.”
Schrader v. Schrader, No. E2005-02641-COA-R3-CV, 2007 WL 27118, at *5 (Tenn. Ct. App. Jan.
4, 2007) (citing Sandalwood Props., LLC v. Roberts, No. E2006-01163-COA-R3-CV, 2006 WL
3431939, at *3 (Tenn. Ct. App. Nov. 29, 2006)). Thus, because Appellant did not seek Rule 55.02
from the trial court, as explained above, and because we find no evidence to support Appellant’s
claim that a default judgment was entered against him, Appellant is not entitled to relief under Rule
55.02.
                                            B.    Costs
         In his reply brief, Appellant asks this Court “to charge all cost[s] and expenses to the
Appellee for this appeal.” Tennessee Rule of Appellate Procedure 40 governs costs, and provides
in part:
               Except as otherwise provided by statute or these rules, if an appeal is
               dismissed, costs shall be taxed against the appellant unless otherwise
               agreed by the parties or ordered by the court; if a judgment is
               affirmed, costs shall be taxed against the appellant unless otherwise
               ordered; if a judgment is reversed, costs shall be taxed against the
               appellee unless otherwise ordered; if a judgment is affirmed or
               reversed in part, or is vacated, costs shall be allowed only as ordered
               by the appellate court.


Tenn. R. App. P. 40(a) (emphasis added). Although costs are generally assessed against the losing
party, this Court has discretion to award costs in a different manner. Tenn. R. App. P. 40(a)
advisory commission’s comment. However, we decline to do so.


                                       C. Frivolous Appeal
      In her brief, Appellee asks this Court to find Appellant’s appeal frivolous, pursuant to
Tennessee Code Annotated section 27-1-122, which states:


                                                 -9-
               When it appears to any reviewing court that the appeal from any court
               of record was frivolous or taken solely for delay, the court may, either
               upon motion of a party or of its own motion, award just damages
               against the appellant, which may include but need not be limited to,
               costs, interest on the judgment, and expenses incurred by the appellee
               as a result of the appeal.


Tenn. Code Ann. § 27-1-122 (2000). We find Appellant’s pro se appeal was taken in good faith
as Appellant raised genuine issues of law, but simply failed to follow the proper procedural rules
necessary to secure relief from the Judgment. Thus, we decline to hold that Appellant’s appeal is
frivolous.


                                        V. CONCLUSION


       For the aforementioned reasons, we affirm the decision of the circuit court. Costs of this
appeal are taxed to Appellant, Alfred Anderson, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, P.J., W.S.




                                                -10-
