                       IN THE COURT OF APPEALS OF TENNESSEE
                                   AT NASHVILLE
                                            January 9, 2007 Session

       CRYSTAL CAPITAL, LLC v. KATHERINE McMANUS BARBER

                                    Circuit Court for Davidson County
                                   No. 04C-1523 Walter C. Kurtz, Judge


                         No. M2006-00027-COA-R3-CV - Filed on April 20, 2007


WILLIAM C. KOCH , JR., P.J., M.S., dissenting.

       I regret that I cannot concur with the court’s opinion in this case. Based on the law, I cannot
conclude, as the court has done, that the trial court abused its discretion by denying Ms. McManus’s
tardy Tenn. R. Civ. P. 60.02 motion to set aside the properly granted default judgment.

        The facts are straight-forward. Crystal Capital, LLC purchased a number of delinquent credit
card accounts from a credit card issuer. One of these accounts belonged to Ms. McManus. When
Ms. McManus refused to pay her debt, Crystal Capital filed suit in the Circuit Court for Davidson
County on May 26, 2004. Ms. McManus was served with a copy of the complaint but did not file
an answer.1 Accordingly, on September 22, 2004, Crystal Capital filed a motion for default
judgment. The motion informed Ms. McManus that it would be heard on October 8, 2004. Ms.
McManus received a copy of this motion but again did not respond or appear at the hearing on
Crystal Capital’s motion. Accordingly, following a hearing, the trial court entered a final order on
November 4, 2004 granting Crystal Capital a default judgment. Ms. McManus received a copy of
this judgment.

        Ms. McManus hired a lawyer in early 2005, but it was not until September 21, 2005 that she
and her lawyer filed a Tenn. R. Civ. P. 60.02 motion to set aside the default judgment. In support
of her motion, Ms. McManus stated that she had mistakenly believed that another attorney had been
representing her prior to the filing of the motion for default judgment, that she was disabled, and that
she had a valid defense to Crystal Capital’s complaint.2 Crystal Capital opposed Ms. McManus’s
Tenn. R. Civ. P. 60.02 motion.

       The trial court conducted a hearing on November 18, 2005. Ms. McManus’s lawyer
explained that she had delayed pursuing Tenn. R. Civ. P. 60 relief because she had been attempting


         1
          Ms. McM anus states in an affidavit that she mailed letters to the trial court stating that she had a valid defense
to the complaint. However, these letters are not in the record, and there is no evidence in this record that the court ever
received them. Ms. McManus has not tendered copies of these letters to the court.

         2
             Ms. McManus claimed that she had already paid the outstanding balance on her credit card.
to settle with Crystal Capital. On December 1, 2005, the court filed an order denying Ms.
McManus’s motion. Noting that Ms. McManus had not filed her Tenn. R. Civ. P. 60.02 motion until
over ten months after the entry of the default judgment, the court noted that “if the Defendant had
filed a Motion within a few months of the judgment being entered against her, the Court may have
set aside the judgment at that time.”

        Decisions regarding whether to grant or deny a Tenn. R. Civ. P. 60.02 motion are
discretionary. State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000); Keck v.
Nationwide Sys., Inc., 499 S.W.2d 266, 267 (Tenn. Ct. App. 1973). Thus, they must be reviewed
using the deferential “abuse of discretion” standard. Reynold v. Battles, 108 S.W.3d 249, 251 (Tenn.
Ct. App. 2003). However, a trial court’s discretion should be informed by the Tennessee Supreme
Court’s direction to liberally construe Tenn. R. Civ. P. 60.02 insofar as default judgments are
concerned, Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 867 (Tenn. 1985), and to set
aside default judgments if there is any reasonable doubt as to the justness of granting the default
judgment. Henry v. Goins, 104 S.W.3d 475, 481 (Tenn. 2003).

          Litigants are not entitled to relief from default judgments simply because they belatedly claim
that they have a meritorious defense.3 They must also demonstrate that they meet the requirements
of Tenn. R. Civ. P. 60.02, even if these requirements have been relaxed in the context of default
judgments. Tenn. R. Civ. P. 1 reflects a policy favoring the “just, speedy, and inexpensive
determination of every action.” Thus, Tenn. R. Civ. P. 60.02 motions must be filed within a
reasonable time. The one-year period for filing Tenn. R. Civ. P. 60.02 motions represents the outside
limit for filing these motions,4 and thus a Tenn. R. Civ. P. 60.02 motion may be rejected as untimely
if it is not filed within a reasonable time even though it was filed before the one-year time period
expired. See 11 Charles A. Wright et al., Federal Practice and Procedure § 2866, at 389 (2d ed.
1995).

        Ms. McManus did not assert a meritorious defense against Crystal Capital’s complaint until
sixteen months after she had been sued and ten months after the default judgment had been entered
against her. The trial court concluded that this delay was unreasonable. I cannot reverse the trial
court’s denial of Ms. McManus’s Tenn. R. Civ. P. 60.02 motion on these facts.



                                                                 ____________________________________
                                                                 WILLIAM C. KOCH, JR., P.J., M.S.


         3
          Based on this record, it is far from clear that Ms. McManus has actually paid the credit card debt she claims
to have paid.

         4
          Default judgments were formerly referred to as judgments pro confesso. Tenn. Code Ann. § 21-1-402 (1994)
requires that parties who have been served with a copy of a judgment pro confesso must come forward and make a
defense within six months after being served with the judgment. As a result of the adoption of the Tennessee Rules of
Civil Procedure, this statutory limitation on the time for asserting a meritorious defense has no “force or effect.” Tenn.
Code Ann. § 16-3-406 (1994).

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