                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      July 13, 2005 Session

    CAROL BRACKEN ORTEN v. THADDEUS CHARLES ORTEN
                    Appeal from the Fourth Circuit Court for Knox County
                               No. 95527   Bill Swann, Judge

                                       Filed August 26, 2005

                                  No. E2004-02987-COA-R3-CV



Sharon G. Lee, dissenting.

        I respectfully dissent from the majority opinion. I would hold that the trial court erred in not
setting aside the entry of the default judgment against Mr. Orten. In my judgment the evidence
supports the conclusion that Mr. Orten did not intentionally fail to appear at the second Trial
Management Conference, but simply forgot to appear. Entry of a default judgment against Mr. Orten
is too drastic a measure in this case.

         A review of the evidence indicates that Ms. Orten filed for divorce on October 30, 2003; Mr.
Orten answered and denied that grounds for divorce existed. On February 27, 2004, Ms. Orten sent
Mr. Orten interrogatories and a request for production of documents. The discovery requests are not
in the record, but from statements in Mr. Orten’s deposition, it appears that among other things,
records requested included cancelled checks and credit card statements for the past five years. On
April 2, 2004, when Mr. Orten’s answers were two days late, Ms. Orten filed a motion to compel
responses to the interrogatories and request for production of documents. There was no hearing date
set for this motion.

        On April 15, 2004, a Trial Management Order was entered setting a Trial Management
Conference for April 19, 2004, and setting the case for trial on July 21, 2004. This order included
the language noted by the majority that both counsel and parties must be present in open court.

       On April 16, 2004, an Interim Order was entered, upon motion of Ms. Orten and the
agreement of the parties, which, inter alia, ordered Mr. Orten to move out of the marital residence
within 30 days.

       On April 19, 2004, Mr. Orten appeared at the first Trial Management Conference. On that
same date, the parties filed a joint property and debt listing as required by court rules. On that same
date, April 19, 2004, a second Trial Management Order was entered which set a second Trial
Management Conference for June 28, 2004, and left unchanged the trial date of July 21, 2004. This
order also contained the mandatory appearance language of the first Trial Management Order. Also
on April 19, 2004, an order was entered which required the parties to attend mediation.

       On April 30, 2004, an order was entered from the first Trial Management Conference which
provided, inter alia, that the trial date was still set for July 21, 2004, and ordered Mr. Orten to
produce requested discovery to Ms. Orten by April 30, 2004. This order also set the date for the
second Trial Management Conference for June 28, 2004, but, unlike the previous Order, it did not
contain the mandatory attendance language.

      Mr. Orten appeared at a discovery deposition on Friday, June 25, 2004, where he was
deposed by Ms. Orten’s attorney.

       On Monday, June 28, 2004, the trial court commenced the second Trial Management
Conference, but Mr. Orten was not present. His counsel advised the trial court:

               We did have depositions on Friday and in the course of agreeing to
               continue those depositions until a subsequent date, I have to assume,
               without having spoken to my client, I have to assume that must have
               caused some confusion in his mind. But I have no idea, your honor.

               We have sent correspondence to him. He has indicated in the past he
               has not received all that correspondence. It has not come back to us.
               So I know that I have sent him notices with respect to today’s hearing,
               but as I have indicated, perhaps as a result of some confusion as a
               result of continuing the depositions, I can only imagine. Clearly this
               matter was set for today.

Ms. Orten’s counsel requested that a default judgment issue against Mr. Orten. Mr. Orten’s counsel
requested the trial court issue sanctions against Mr. Orten rather than a default judgment. The trial
court responded: “It is a severe blow to the husband’s case, but it is one he has brought upon himself.
So motion denied. I am sorry.” The trial court awarded Ms. Orten a default judgment based on Mr.
Orten’s failure to attend the conference and his failure to comply with discovery requests. The trial
court allowed Mr. Orten’s counsel to withdraw from representation of Mr. Orten, and allowed Ms.
Orten to present her case, in the absence of Mr. Orten and without counsel for Mr. Orten. On July
26, 2004, Mr. Orten’s new attorney entered an appearance in the case.

       Subsequently, an order was entered from the June 28, 2004 hearing which, inter alia, granted
Ms. Orten a divorce, divided the marital estate, approved Ms. Orten’s parenting plan, and awarded
Ms. Orten alimony until her death or remarriage.

        Mr. Orten filed a motion to alter or amend or, in the alternative, for a new trial. The trial
court denied the motion finding that Mr. Orten was given “clear, complete and repeated” notice of
the trial management proceeding and that Mr. Orten’s nonappearance was consistent with his


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“obstructive and defiant behavior throughout the case and constitutes a further act of passive
aggression.”

        At the hearing on Mr. Orten’s motion, Mr. Orten testified that except for the second Trial
Management Conference, he had attended every scheduled divorce event - the discovery deposition,
the mediation session, and the first Trial Management Conference. He did not attend the second Trial
Management Conference because he forgot it was set that day. He explained to the trial court that
had he remembered the hearing was set, he would have attended; that had his lawyer reminded him
of the hearing, he would have been there. For all his other required appearances, his lawyer had
reminded him to be there before the scheduled date. He did not recall hearing any discussion about
the Trial Management Conference at the deposition. As he was leaving the deposition, his lawyer
told him he would call him to remind him of the date they were getting together, but he did not
receive a call that weekend.

       Mr. Orten admitted that he received the Trial Management Order regarding the June 28, 2004
conference, but that it was in “stuff boxed up to move” which remained in boxes after he moved
from the marital residence. He did not have the conference date written on a calendar anywhere.

         Mr. Orten’s discovery deposition, which was admitted into evidence, does not reveal any
discussions about the upcoming second Trial Management Conference. In the deposition, Mr. Orten
testified that he had not actually received the interrogatories or request for documents but had
reviewed them at his lawyer’s office with his lawyer’s secretary. The discovery requests are not in
the record, but it appears from questions asked of Mr. Orten in his deposition that he was asked to
provide cancelled checks, check registers, check stubs, deposit slips, debit or credit memoranda,
transaction advances and bank statements for all bank accounts he had any involvement with for the
last five years. Mr. Orten did not bring these records to the deposition as requested by wife’s
counsel. He told her he had previously told his attorney that he did not keep those records more than
a couple of months. The records involved a joint account to which the wife had access and Mr.
Orten’s separate account. Later in the deposition, Mr. Orten agreed that he would provide eighteen
months of bank statements. When asked for five years of monthly credit card statements for Chase,
Bank of America and Discover statements, Mr. Orten said he would bring the current statements
but, “I am not going to go back that many years . . . there is no need to.” The deposition continued
on other matters and at the conclusion, wife’s counsel stated that the deposition of Mr. Orten was
being suspended and would be finished at a later date. She stated “if we could have those documents
we asked for by the next time, it would really be helpful.” Thereupon the deposition was concluded
on Friday, June 25, 2005 to be completed at a date to be scheduled.

        Mr. Orten’s former lawyer, Mr. Wilkerson, testified by deposition that Mr. Orten had
appeared at every other scheduled event in the divorce litigation - the mediation, the first Trial
Management Conference on April 19, 2005, the discovery deposition on June 25, 2004, and his
office appointments. When Mr. Orten did not appear at the second Trial Management Conference,
Mr. Wilkerson had his secretary attempt to call Mr. Orten, but she was not able to reach him. Mr.
Wilkerson testified:


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                I think Thaddeus was having a difficult time for the entire process of
                the divorce itself, a divorce he did not want, the process of going
                through and identifying properties and pay out sums of money over
                which he had no control, and I think that the deposition was very
                difficult for him. So, I see where he may have forgotten that he was
                required to appear on Monday, the 28th.

        Mr. Orten never gave any indication to Mr. Wilkerson on Friday at the deposition that he
would not appear on Monday. It is Mr. Wilkerson’s policy to have his office call the day before to
remind clients of appointments and court hearings. In this case, Mr. Wilkerson testified that he
would have been surprised if this was done because of the depositions they were involved in on
Friday. As to the discussion on Friday about the second Trial Management Conference on Monday,
Mr. Wilkerson testified:

               Q: Did you directly have a discussion with Mr. Orten on June the 25,
               2004 about the court date, that is the Trial Management Conference on
               the following Monday, June the 28th?

                A: I cannot say that I specifically told him or reminded him that on
                Monday, we were to be in court. I know there had been some
                discussion prior to the deposition, a discussion between Donna Smith
                and me, talking abut the Trial Management Conference. Mr. Orten
                was not a part of that discussion, although he was in the same room.
                After the deposition, I think we talked a little bit about the deposition.
                I don’t remember specifically saying, “Don’t forget, we’ll be together
                first thing Monday morning.” I just don’t remember saying that.


Mr. Wilkerson also testified that in his opinion, Mr. Orten had a colorable defense to the alimony
issue which Mr. Wilkerson deemed the most significant issue in the case.

         Based upon this proof, I think it is more likely than not that Mr. Orten simply forgot to appear
at the second trial management conference. Upon his wife’s filing of the divorce action, he retained
an attorney, filed an answer, attended a mediation session, attended a deposition, attended the first
Trial Management Conference, met with his lawyer in his office to discuss the case, and filed the
required joint list of property and debts. In short, he made every required appearance, except the
second Trial Management Conference. I am not condoning in any sense Mr. Orten’s failure to
appear at the conference. Clearly, he should have followed the trial court’s rules. The trial court has
the difficult task of maintaining its docket so that justice is dispensed as efficiently and effectively
as possible. However, given the circumstances in this case, that Mr. Orten made every other required
appearance, that he was required to move from the marital home about the time he received the
Order containing the date of the conference, that the order was packed in a box, that he did not have


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the conference date on his calendar, that he was not reminded to attend by his attorney as he had been
previously for court hearings and events, and that his lawyer did not recall discussing it with him or
reminding him about the conference on the Friday during depositions - it is more likely than not that
he simply forgot to attend. Mr. Orten’s testimony was corroborated by the testimony of his former
lawyer whose credibility and veracity were not impeached. I am not persuaded that Mr. Orten knew
about the conference because his lawyer and his wife’s lawyer were discussing it in the same room
prior to Mr. Orten’s deposition. Mr. Orten is not a lawyer and this was his first deposition. Under
those circumstances, Mr. Orten should not be credited with hearing and comprehending
conversations to which he was not a direct participant. It is very unfortunate that Mr. Orten did not
attend the conference, but it should not be fatal to the defense of his divorce action. The action of
entering a default judgment was too drastic in this case. The trial court had other less severe options
which included, but were not limited to, rescheduling the conference with wife’s attorney’s fees
assessed to Mr. Orten or proceeding with the conference in Mr. Orten’s absence. Had the trial court
done so, the matter very likely would have proceeded to trial on the merits with both parties having
their day in court on July 21, 2004 - less than a month later. It appears that the trial court, in denying
the motion to set aside the default judgment, considered whether Mr. Orten had notice of the
conference, whether Mr. Orten’s failure to appear was willful, and Mr. Orten’s failure to respond to
discovery requests. It does not appear that the trial court considered whether setting aside the default
would prejudice Ms. Orten and whether Mr. Orten had a meritorious defense.

        Mr. Orten made a mistake when he refused to produce credit card records and bank
statements as requested by wife’s counsel. It is more likely than not that Mr. Orten did not have five
years or even eighteen months of these records in his possession. Clearly he should have started the
process of procuring these records or filed a motion seeking relief from the trial court if the request
was too burdensome. Simply refusing to provide the records was not in compliance with the rules
and certainly, was not a wise course of action for Mr. Orten. It should be noted that there was never
a petition for contempt filed against Mr. Orten for not producing the records. By the end of the
deposition, he did agree to produce the bank records and counsel agreed to schedule a time to
continue the deposition of Mr. Orten. The deposition ended harmoniously. The evidence
preponderates against the trial court’s conclusion that Mr. Orten’s conduct reached the level of
“obstructive and defiant behavior throughout the case” as described by the trial court.

         Tenn. Rule Civ. P. 55.02 provides that “for good cause shown the court may set aside a
judgment by default in accordance with Rule 60.02.” Tenn. Rule Civ. P. 60.02 provides that the
court may relieve a party from a final judgment for several enumerated reasons including mistake,
inadvertence, surprise or excusable neglect, or any other reason justifying a relief from the operation
of the judgment. Tenn. Rule Civ. P. 60 is aimed at striking a balance between the competing
interests of justice and finality. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 231 (Tenn. Ct. App.
2000). The interests of justice are best served when lawsuits are resolved on their merits after trial.
Akers v. Bonifasi, 629 F. Supp. 1212 (M.D. Tenn. 1984). Tenn. Rule Civ. P. 60 is construed with
liberality to afford relief from a default judgment. Tennessee Department of Human Services v.
Barbee, 689 S.W.2d 863, 867 (Tenn. 1985). Default judgments should be set aside if reasonable
doubt exists as to the conduct of the defaulting party. Nelson v. Simpson, 826 S.W. 2d 483, 485-486


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(Tenn. Ct. App. 1991), March v. Levine, 115 S.W. 3d 892, 913 (Tenn. Ct. App. 2003). If there is any
doubt about whether a default judgment should be set aside, the court should exercise its discretion
in favor of granting relief to allow the case to be decided on its merits. Keck v. Nationwide Sys., 499
S.W. 2d 266, 267 (Tenn. Ct. App. 1973), Reynolds v. Battles, 108 S.W. 3d 249, 251 (Tenn. Ct. App.
2003), Tennessee State Bank v. Lay, 609 S.W. 2d 525, 527 (Tenn. Ct. App. 1980). Whether entry
of a default should be set aside is a matter committed to the discretion of the trial court and involves
consideration of these factors: (1) whether the default was the result of wilful conduct by the
defaulting party; (2) whether the non-defaulting party would be prejudiced if the entry of default
were set aside; and (3) whether the defaulting party has shown a meritorious defense. Tennessee
Department of Human Services v. Barbee, at 866, Reynolds v. Battles, at 251. Judgment by default
for failure to obey an order to provide discovery is an extreme sanction. March v. Levine, at 912.

         After reviewing the record, I conclude that the evidence preponderates in favor of the
conclusion that Mr. Orten’s conduct was not willful; that Mr. Orten had a meritorious defense; and
that setting aside the default judgment would not unduly prejudice Ms. Orten. Further, I conclude
that the trial court abused its discretion in not setting aside the default judgment because it failed to
consider the requisite factors which are the willfulness of the conduct, the effect of setting aside the
default judgment on the non-defaulting party and whether the defaulting party had a meritorious
defense. The record supports the conclusion that Ms. Orten would not have been prejudiced by
proving her case on the merits rather than winning by default. The record supports the conclusion
that these parties would have been better served with a trial on the merits rather than a default
judgment at a trial management conference. For these reasons, I would reverse the decision of the
trial court and remand for a trial on the merits.




                                                        ________________________
                                                        SHARON G. LEE, JUDGE




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