                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs July 12, 2010

                    THE HARTFORD v. JAMES R. WYRICK

                    Appeal from the Circuit Court for Knox County
                      No. 1-55-09    Dale C. Workman, Judge




            No. E2010-00478-COA-R3-CV - FILED OCTOBER 12, 2010


The defendant, acting pro se, appeals the entry of a default judgment entered against him in
a subrogation action. After a thorough review of the record before us, we affirm the ruling
of the trial court.


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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J. and C HARLES D. S USANO, J R., J., joined.

James R. Wyrick, Knoxville, Tennessee, pro se appellant.

Zachary B. Tenry, Knoxville, Tennessee, for the appellee, The Hartford.

                                        OPINION

                                   I. BACKGROUND

        On August 21, 2007, while Donald Lee Jones was working as an employee of HOM
Properties, LLC (“HOM”) at University Liquors on Cumberland Avenue in Knoxville, the
defendant, James R. Wyrick, entered the store and demanded service. Mr. Wyrick
previously had been banned from the premises by the store’s management. According to the
plaintiff, the Hartford, as subrogee of Mr. Jones and HOM, Mr. Jones informed Mr. Wyrick
that he would not be served and requested that he leave the premises. Mr. Wyrick thereafter
became angry, came around the service counter and, as Mr. Jones was attempting to call 911,
violently attacked and repeatedly struck Mr. Jones.
       Mr. Wyrick claims the following occurred:

       Jones became very belligerent toward me, as soon as he saw me. He said I was
       not allowed in the store and I asked him why. He said that he did not have to
       give me a reason.

       He quickly threatened me and I laughed at him. As I was leaving the store, he
       came between myself and the door. At this point, Donald Jones assaulted me
       the 1st time. He kicked and punched me several times. I was able to easily
       pacify [sic] my aggressor.

       I continued to the door, and he used the opportunity to retr[ieve] a small, metal
       bat, that was kept behind the cash register. Donald Jones followed me, as I left
       Volunteer Liquor. As soon as I cleared the front door, Jones whacked me on
       the head. I turned around and proceeded to defend myself. I was attacked
       twice by Donald Jones. Both times, I bro[ke] contact when the threat was no
       longer present.


       In its lawsuit against Mr. Wyrick, the Hartford sought reimbursement for monies paid
to or on behalf of Mr. Jones and/or his employer under the Tennessee Workers’
Compensation law as a result of the injuries and treatment Mr. Jones received in the
altercation with Mr. Wyrick.

       Mr. Wyrick was served with the lawsuit while incarcerated at the Knox County
Sheriff’s Detention Facility on June 24, 2009. He failed to file and serve an answer within
30 days of service of the summons and complaint upon him. Accordingly, the Hartford filed
a motion for judgment by default against Mr. Wyrick, which was served upon him at the
detention center. The trial court conducted a hearing on December 4, 2009, and awarded the
Hartford a judgment by default. The record indicates that Mr. Wyrick filed a handwritten
response with the trial court clerk on the afternoon of December 4, 2009, but that document
was never served upon the Hartford. The response read as follows:

       I am writing you with my response to this pending issue.

       All of this is very, very laughable. On Jan. 29th, Bill Swann sentenced me to
       180 days in jail. My out date was Aug. 4th. On the 3rd, I was given 30 more
       days, for a total of 217 days. I was re-arrested on the 24th of October. My out
       date is now on the 21st of December, for a total of 273 days this year.



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         This attorney has served me twice at the KCDF. They know I am in jail. . . .
         In August of [sic] 21st of 2007, Donald Lee Jones was charged with
         Aggravated Assault. He came after me with a small, metal bat from a Smokies
         ball game. He hit me on the left side of my head and caused a 4 inch gash.
         The gray t-shirt I wore was cove[red] with blood. So [heres] the question, how
         do you get charged with Aggravated Assault and have any claim at all. I just
         don’t get it.

         I look forward to my day in court. This guy thinks that some money will sway
         justice or right and wrong. It will not. Please set this court date after Dec.
         21st. . . .

Six days later, the trial court entered an order granting judgment by default and scheduling
a writ of inquiry hearing for a determination of damages. The trial court noted “that the
Defendant has been duly served with Summons and a Copy of the Complaint but has neither
filed a response nor had a representative enter an appearance on his behalf. . . .” Mr. Wyrick
was notified of the hearing held on February 12, 2010. The trial court granted the Hartford
a final default judgment against Mr. Wyrick in the amount of $5,650.36 plus court costs on
February 22, 2010.

       Mr. Wyrick now appeals the trial court’s final judgment. On his notice of appeal, he
noted the following:

         This guy was injured due to his own actions. His actions were criminal. These
         people say I am a criminal. I was charged with tres[passing]. [Mr. Jones] was
         charged with Aggravated Assau[lt] [which] is a felony. . . . Jones has a history
         of aggression. The bat he used to [whack] me in the head is his primary
         weapon. He even had or has a name for it, “BumBeater.” How is it possible
         to be ass[aul]ted with a bat and then sued? I don’t understand it.


                                            II. ISSUE

         Mr. Wyrick requests that this court reverse the default judgment entered by the trial
court.


                                III. STANDARD OF REVIEW

         In this case, Mr. Wyrick did not seek to set aside the default judgment in the trial court

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in accordance with Tenn. R. Civ. P. 55.02. Rather, he requested a Tenn. R. App. P. 3 appeal
as of right. As noted in First Union National Bank of Tennessee v. Abercrombie, No.
M2001-01379-COA-R3-CV, 2003 WL 22251347 (Tenn. Ct. App. M.S., Oct. 2, 2003), Mr.
Wyrick’s actions

       raise two questions . . . : first, whether a party against whom a default
       judgment has been entered may pursue an appeal without first seeking to set
       the default judgment aside pursuant to Tenn. R. Civ. P. 55.02; and second, if
       the answer to the first question is “yes,” what the proper standard of review is.
       Should the trial court’s decision be reviewed using the familiar Tenn. R. App.
       P. 13(d) standards, or should the decision be reviewed using the standards
       normally associated with default judgments.

                                             ***

       The answer to the first question depends on the substance of the default
       judgment. If the order granting the default judgment disposes of all the claims
       between all the parties, and if it leaves nothing else for the trial court [to] do
       . . ., it is final for purposes of Tenn. R. App. P. 3. Other courts addressing this
       issue have held that default judgments disposing of all claims between all the
       parties are appealable as of right. . . .


Id. at *3 (Citations omitted). Here, the default judgment undertook to resolve all disputes
between the parties. It was, therefore, final and appealable as of right. Accordingly, Mr.
Wyrick could properly choose to appeal the case to this court rather than seeking relief from
the trial court in accordance with Tenn. R. Civ. P. 55.02.

       As to the second question involving the proper standard of review, the Abercrombie
court held as follows:

       [The answer is dictated by Mr. Wyrick’s] decision not to seek to set aside the
       default judment in the trial court. Generally, appellate courts review trial court
       decisions denying Tenn. R. Civ. P. 55.02 motions to set aside default
       judgments using the “abuse of discretion” standard. In this case, however, no
       Tenn. R. Civ. P. 55.02 motion was filed. In such cases, the default judgment
       is instead reviewed only for fundamental errors apparent on the face of the
       record. In conducting this review, we should also consider (1) the willfulness
       of the default, (2) whether there is a meritorious defense, and (3) the level of
       prejudice to the non-defaulting party if the default is set aside.

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Id. at *3 (citations omitted).

                                     IV. DISCUSSION

        In the instant action, despite being served and having received notice of the Hartford’s
motion for default judgment and the trial court’s hearings considering the motion and the
Hartford’s damages, Mr. Wyrick failed to file anything with the trial court until after the
motion for default judgment was considered by the trial court. Even then, Mr. Wyrick failed
to serve opposing counsel with his response. In the handwritten filing, Mr. Wyrick asked
that a hearing be held after December 21, 2009, but then failed to appear at the hearing on
February 12, 2010.

       A default judgment is a final order disposing of a case on its merits, like any other
judgment. Such a judgment is generally considered an admission of all the properly pleaded
material allegations of fact in the complaint, except the amount of unliquidated damages. See
Patterson v. Rockwell Int’l, 665 S.W.2d 96, 100 (Tenn. 1984).

        We find that despite his periods of incarceration, Mr. Wyrick had ample opportunity
to participate in this action against him and failed to do so. He has admitted that he was
properly served. He has cited no reason why he could not have contacted an attorney or the
court in a timely fashion. We do not find Mr. Wyrick’s incarceration rendered him
incompetent or excused him from participating in the proceedings. See Jimenez v.
Rosenbaum-Cunningham, Inc., No. 07-1066, 2010 WL 1303449, at n.7 (E.D. Pa. Mar. 31,
2010). “His unavailability for hearings and trials [did] not prohibit him from presenting
matters to the court on his behalf.” Carson v. Gilleland, No. M2002-01082-COA-R3-CV,
2003 WL 22037336, at *3 (Tenn. Ct. App. M.S., Aug. 29, 2003). Accordingly, the default
judgment is proper.


                                     V. CONCLUSION

        The order granting the default judgment is affirmed, and this case is remanded to the
trial court. Costs of the appeal are assessed to appellant, James R. Wyrick.




                                            _________________________________
                                                  JOHN W. McCLARTY, JUDGE




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