               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                        Assigned on Briefs September 2, 2016

              TRINA A. SCOTT v. SHARFYNE L’NELL WHITE

               Appeal from the Circuit Court for Montgomery County
                      No. 50300480       Ross H. Hicks, Judge
                      ___________________________________

                 No. M2015-02488-COA-R3-CV – Filed July 14, 2017
                      ___________________________________


A judgment creditor moved to extend her judgment for an additional ten years under
Tennessee Rule of Civil Procedure 69.04, and the trial court issued an order requiring the
judgment debtor to show cause why the judgment should not be extended. Almost a year
later, the judgment debtor filed a motion for relief from the judgment based upon an error
in the certificate of service on the show cause order. In her response, the judgment
creditor acknowledged that the address shown for the judgment debtor was incorrect but
stated that, after the order was returned by the post office, it was mailed to the correct
address. The judgment creditor also asserted that the motion for relief was premature
because the court had not yet entered an order extending the judgment. The trial court
entered an order extending the judgment for an additional ten years. We affirm.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and BRANDON O. GIBSON, JJ., joined.

Appellant, Sharfyne L’Nell White, pro se.

Christopher J. Pittman, Clarksville, Tennessee, for the appellee, Trina A. Scott.


                                        OPINION

                                             I.

       On April 8, 2005, Trina Scott, as administrator of the estate of David Scott,
obtained a judgment in the Circuit Court for Montgomery County, Tennessee, against
Sharfyne L’Nell White for the wrongful death of David Scott.1 Mrs. Scott filed a motion
to renew the judgment on September 9, 2014. Tenn. R. Civ. P. 69.04 (2015) (revised
2016)2; see Tenn. Code Ann. § 28-3-110(a)(2) (Supp. 2016) (providing ten-year statute of
limitations for actions on judgments). In her motion, Mrs. Scott explained that the
judgment remained unsatisfied and requested that the court order Mr. White to show
cause why the judgment should not be extended for an additional ten years. See Tenn. R.
Civ. P. 69.04.

       The court issued the requested show cause order, which provided that Mr. White
had “thirty (30) days from the date of mailing of this Order to show cause why the
Judgment should not be renewed pursuant to Tennessee law.” But the certificate of
service on the show cause order contained an error. Specifically, the address for
Mr. White reflected the city as Clinton, rather than Clifton, Tennessee.

       The post office returned the mailing addressed to Clinton. So, on December 19,
2014, counsel for Mrs. Scott mailed the order to Mr. White’s correct address.

       Eight months later, Mr. White, acting pro se, filed a motion for relief from the
order renewing the judgment under Tennessee Rule of Civil Procedure 60.02(2). As
grounds, Mr. White asserted that the certificate of service fraudulently represented that
the show cause order was mailed on September 19 when in fact the order had been
mailed on December 19. According to Mr. White, this delay prevented him from filing a


        1
          Mrs. Scott filed a wrongful death action against Mr. White in 2003. The trial court entered a
default judgment on March 18, 2005, and conducted an ex parte hearing to determine the appropriate
amount of damages. On April 8, 2005, the court entered a $5,000,000 judgment against Mr. White,
awarding $2,500,000 in compensatory damages and $2,500,000 for loss of consortium.
        2
          In 2016, the General Assembly ratified and approved a revision to Tennessee Rule of Civil
Procedure 69.04. H. Res. 143 & S. Res. 81, 109th Gen. Assemb., Reg. Sess. (Tenn. 2016). The rule
currently provides as follows:

        Within ten years from the entry of a judgment, the creditor whose judgment remains
        unsatisfied may file a motion to extend the judgment for another ten years. A copy of the
        motion shall be mailed by the judgment creditor to the last known address of the
        judgment debtor. If no response is filed by the judgment debtor within thirty days of the
        date the motion is filed with the clerk of court, the motion shall be granted without
        further notice or hearing, and an order extending the judgment shall be entered by the
        court. If a response is filed within thirty days of the filing date of the motion, the burden
        is on the judgment debtor to show why the judgment should not be extended for an
        additional ten years. The same procedure can be repeated within any additional ten-year
        period.

Tenn. R. Civ. P. 69.04. Throughout this opinion, citations to Tennessee Rule of Civil Procedure 69.04 are
to the version in effect before July 1, 2016.
                                                     2
response. Mr. White asked the court to “rescind” the order renewing the judgment and
grant him additional time to “show cause.”

      In her response, Mrs. Scott acknowledged the error in the certificate of service but
claimed that Mr. White was not prejudiced because the court had not yet entered an order
renewing the judgment. Because more than thirty days had elapsed since the date
Mr. White acknowledged that the show cause order had been mailed to the correct
address, Mrs. Scott requested that the court immediately enter an order renewing the
judgment.

       Mr. White countered that the incorrect date on the certificate of service on the
show cause order led him to believe that the deadline for a response had already elapsed.
He also continued to assert that the order renewing the judgment was void for improper
service.3

       The trial court issued a final order on October 9, 2015. The court found that
Mr. White had thirty days from the date the show cause order was mailed to the correct
address within which to object to extension of the judgment. Mr. White did not respond
until August 28, 2015, over seven months after the deadline. The court noted that, even
then, Mr. White failed to dispute the underlying judgment. The court denied Mr. White’s
Rule 60.02 motion because, when the motion was filed, there was no judgment to set
aside.

                                                   II.

                                   A. EXTENSION OF JUDGMENTS

       As we understand it,4 Mr. White challenges the trial court’s extension of the
judgment and the denial of his Rule 60.02 motion. The trial court’s decision to extend
the judgment was based on an interpretation of the Tennessee Rules of Civil Procedure.
As such, this case presents a question of law, which we review de novo, with no
presumption of correctness. Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009).


        3
         Mr. White argued that service of the show cause order failed to comply with Tennessee Rule of
Civil Procedure 4.04(10), which governs service of a summons and complaint by mail. See Tenn. R. Civ.
P. 4.04(10).
        4
          Mr. White raised two issues in his brief: (1) whether the court erred in granting the original
default judgment; and (2) whether the court’s denial of his Rule 60 motion was an abuse of discretion.
But in his reply brief, Mr. White explained that his first issue “was not an attempt to ask for reversal of
that judgment but rather [evidence of ] ‘good cause’ as to why the extension of the judgment should not
have been granted.”

                                                    3
      The procedure for extending a judgment is set forth in Tennessee Rule of Civil
Procedure 69.04. At the time Mrs. Scott requested the extension of the judgment, the rule
provided as follows:

       Within ten years from entry of a judgment, the judgment creditor whose
       judgment remains unsatisfied may move the court for an order requiring the
       judgment debtor to show cause why the judgment should not be extended
       for an additional ten years. A copy of the order shall be mailed by the
       judgment creditor to the last known address of the judgment debtor. If
       sufficient cause is not shown within thirty days of mailing, another order
       shall be entered extending the judgment for an additional ten years. The
       same procedure can be repeated with any additional ten-year period.

Tenn. R. Civ. P. 69.04. Mrs. Scott filed the motion to renew within ten years from entry
of the original judgment. According to Rule 69.04, Mr. White was required to respond
within “thirty days of mailing,” or the court would automatically grant the motion. See
Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009)
(“When “shall” is used in a statute or rule, the requirement is mandatory.”); see also
Tenn. R. Civ. P. 69.04 Advisory Comm. cmt. to 2016 revision (explaining that “if the
judgment debtor files no response to the motion in 30 days[,] the extension shall be
automatically granted”).

       The mailing of a copy of the show cause order serves to provide the judgment
debtor with an opportunity to show “why the judgment should not be extended for an
additional ten years.” Tenn. R. Civ. P. 69.04. Here, Mr. White did not receive the
requisite notice until the order was mailed to the correct address on December 19.
Although Mr. White had until January 21, 2015, to object to an extension, he took no
action until August 28, 2015, over seven months after the deadline. See Tenn. R. Civ. P.
6.05 (providing an additional three days to take a prescribed action after service by mail).

      Mr. White’s mistaken belief that the time limit had already expired does not
excuse his noncompliance with Rule 69.04. He received notice of the motion to renew,
had an adequate opportunity to object, but failed to timely do so. The plain language of
Rule 69.04 entitled Mrs. Scott to an extension of the judgment based upon the untimely
response.

       Mr. White also contends that the order extending the judgment was ineffective
because it was issued after the expiration of the original ten-year period. We disagree.
For purposes of Rule 69.04, the proper focus is on the timing of the motion to extend, not
the court’s order extending the judgment. As long as a motion to extend is filed “[w]ithin
ten years from entry of a judgment,” as is the case here, a judgment creditor may “avoid
having the judgment become unenforceable by operation of [Tennessee Code Annotated
§ 28-3-110(a)(2)].” Tenn. R. Civ. P. 69.04 Advisory Comm. cmt. to 2016 revision; see
                                            4
also In re Hunt, 323 B.R. 665, 669 (Bankr. W.D. Tenn. 2005) (“[I]t is not essential that
the debtor receive these pleadings within the ten-year period, only that the renewal
pleading be filed within that time.”). The rule does not require the order extending the
judgment for the additional ten-year period to be entered within ten years from the entry
of the judgment.

                                   B. RELIEF FROM JUDGMENTS

        Next, Mr. White argues that the denial of his Rule 60.02 motion was an abuse of
discretion. See Howard v. Howard, 991 S.W.2d 251, 255 (Tenn. Ct. App. 1999)
(“[R]elief granted pursuant to rule 60.02 lies within the sound discretion of the trial court
. . . .”). Our review of discretionary decisions is limited. Beard v. Bd. of Prof’l
Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009). We do not “second-guess the court
below” or “substitute [our] discretion for the lower court’s.” Lee Med., Inc. v. Beecher,
312 S.W.3d 515, 524 (Tenn. 2010). In reviewing discretionary decisions, we consider
“(1) whether the factual basis for the decision is properly supported by evidence in the
record, (2) whether the lower court properly identified and applied the most appropriate
legal principles applicable to the decision, and (3) whether the lower court’s decision was
within the range of acceptable alternative dispositions.” Id. We “review the underlying
factual findings using the preponderance of the evidence standard . . . and . . . the lower
court’s legal determinations de novo without any presumption of correctness.” Id. at 525.

       There was no abuse of discretion in denying the motion for relief. As the trial
court concluded, no relief was available under Rule 60.02 because a final judgment had
not been entered when the request was made.5 See Tenn. R. Civ. P. 54.01 (defining a
judgment as a “decree and any order from which an appeal lies”). By its terms, Rule
60.02 permits relief from “a final judgment, order or proceeding.” Tenn. R. Civ. P.
60.02; see also Campbell v. Archer, 555 S.W.2d 110, 112 (Tenn. 1977) (“The function of
this Rule is to give relief from final judgments . . . .”); Bilbo v. Ocoee Place Condo.
Homeowners Ass’n, 462 S.W.3d 490, 495 (Tenn. Ct. App. 2014) (“As the Trial Court’s
order granting summary judgment was not a final judgment when Plaintiffs filed their
       5
         Although Mr. White represented himself in the trial court as he does on appeal, that fact does
not excuse him from complying with the applicable rules of procedure. As we have explained:

                Parties who decide to represent themselves are entitled to fair and equal treatment
       by the courts. The courts should take into account that many pro se litigants have no
       legal training and little familiarity with the judicial system. 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.

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (internal citations omitted).

                                                    5
motion to alter or amend, we find no abuse of discretion in the Trial Court’s refusal to
grant Plaintiffs relief pursuant to Tenn. R. Civ. P. 60.02.”). Absent a final judgment, the
trial court properly denied the motion.


                                           III.

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



                                                  _________________________________
                                                  W. NEAL MCBRAYER, JUDGE




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