                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    February 2001 Session



          FREDDIE DEAN SMITH, ET AL. v. TONY O. HALEY, M.D.

                     Appeal from the Law Court for Washington County
                       No. 18245 G. Richard Johnson, Chancellor

                                    FILED MARCH 2, 2001

                                No. E2000-001203-COA-R3-CV




Freddie Dean Smith and Anita Ann Smith (“Plaintiffs”) filed a medical malpractice action against
Tony O. Haley, M.D. (“Defendant”). Defendant moved for summary judgment with his affidavit
filed in support thereof. The motion was granted after Plaintiffs failed to file timely any competent
medical proof to defeat the motion. Plaintiffs filed a Motion to Reconsider along with the affidavit
of Joseph Bussey, M.D. The Trial Court granted the motion and reinstated the case to the active
docket. Dr. Bussey later refused to give his deposition because he was not comfortable giving a
deposition after reviewing the medical records and because he did not believe the case was going to
“go this far” when he provided the affidavit. Defendant moved to strike the affidavit of Dr. Bussey
and requested the Trial Court to reinstate its previous dismissal. The Trial Court granted
Defendant’s motion. Seeking additional time to locate another medical expert, Plaintiffs then filed
a motion to alter or amend the judgment pursuant to Rule 59.04, Tenn. R. Civ. P., and for relief from
the judgment pursuant to Rules 60.02(1) and 60.02(5), Tenn. R. Civ. P. The Trial Court denied this
motion, and Plaintiffs appeal this denial. We affirm.

                         Tenn. R. App. P. 3 Appeal As Of Right;
                 Judgment of the Law Court Affirmed; and Case Remanded.

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSHEL P. FRANKS , J., joined.

Bob McD. Green, Johnson City, Tennessee, for the Appellants Freddie Dean Smith, et al.

James E. Brading, Johnson City, Tennessee, for the Appellee, Tony O Haley.
                                             OPINION

                                            Background

               The original complaint was filed in this medical malpractice action on September 11,
1995, by Freddie Dean Smith and Anita Ann Smith (“Plaintiffs”). Tony O. Haley, M.D.
(“Defendant”) is a physician practicing medicine in Johnson City, Tennessee. The lawsuit centers
around a surgical procedure performed on Freddie Dean Smith on September 9, 1994, by Defendant.
On October 10, 1995, Defendant moved for summary judgment pursuant to Rule 56 of the Tenn. R.
Civ. P. Plaintiffs did not respond to this motion. Instead, Plaintiffs filed a motion requesting that
the action be voluntarily dismissed. An order granting the motion for voluntary dismissal was
entered on February 23, 1996.

                One year later, Plaintiffs refiled the complaint. On March 12, 1997, Defendant filed
a Motion to Dismiss and/or for Summary Judgment with his supporting affidavit. This motion was
set for hearing on April 21, 1997. No response was filed by Plaintiffs. At the hearing, the Trial
Court agreed to allow Plaintiffs to depose Defendant. On May 7, 1997, an Agreed Order was entered
which provided that Plaintiffs could depose Defendant. This Agreed Order gave Plaintiffs two
weeks after receipt of Defendant’s deposition transcript in which to file “competent medical
evidence” establishing a genuine issue of material fact. The Agreed Order further provided that “in
the absence of such evidence the Defendant shall be entitled to judgment without further notice to
the Plaintiffs or their counsel.” Defendant was deposed on September 3, 1997. The deposition
transcript was served on Plaintiff’s counsel on September 11, 1997, thereby giving Plaintiffs until
September 25, 1997, in which to file their medical proof in accordance with the Agreed Order.

                 On September 24, 1997, Plaintiffs filed a Motion for an Extension of Time in which
to file an affidavit opposing the summary judgment motion. Plaintiffs indicated that they had been
in contact with a medical consulting firm in Atlanta, Georgia, and anticipated obtaining an affidavit
within one week. Plaintiffs explained in their motion that they were having trouble obtaining the
affidavit because of the “logistics involved in obtaining a competent medical expert in an appropriate
field . . . .” Defendant opposed the extension.

               On October 1, 1997, the Trial Court entered an Order granting Defendant summary
judgment. In that Order, it was noted that Plaintiffs had had since “pre-September 11, 1995" in
which to find an expert to support their case and thus had not been diligent in locating an expert.
The Trial Court also indicated that the wording of Plaintiffs’ Motion for an Extension of Time did
not give any hope that Plaintiffs would be successful in locating an expert. The Trial Court stated
that it would be an abuse of discretion to affirm Plaintiffs’ lack of diligence.

               On October 6, 1997, Plaintiffs filed a Motion to Reconsider. In support of this
motion, Plaintiffs filed the affidavit of Joseph Gibson Bussey, Jr., M.D. This motion was opposed
by Defendant. On February 25, 1998, the Trial Court entered an Order granting Plaintiffs’ Motion
to Reconsider and restoring the case to the active docket. It does not appear from the record that any


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further ruling on Defendant’s Motion to Dismiss and/or Motion for Summary Judgment was taken
at this time.

                On March 10, 1999, over one year after the case was restored to the active docket and
the affidavit of Dr. Bussey was allowed, Plaintiffs filed a Motion for Continuance. The trial was
scheduled for March 30, 1999. Plaintiffs sought a continuance because they had not been able to
schedule the pre-trial deposition of Dr. Bussey. An Agreed Order for Continuance was entered on
April 6, 1999. The case was rescheduled for trial on July 26, 1999.

                Dr. Bussey’s deposition was scheduled for June 3, 1999, at his office in Georgia. The
day before the deposition, Plaintiffs’ counsel informed Defendant’s counsel that he had just received
a telephone call from Dr. Bussey’s office. Apparently, Dr. Bussey had gone over the medical records
in preparation for his deposition and did not feel comfortable giving the deposition. Dr. Bussey
stated that he had not realized that this case would “go this far” and he thought his only participation
would be providing the affidavit. Defendant then moved to strike the affidavit of Dr. Bussey and
further requested the Trial Court to reinstate its original Order of Dismissal entered on October 1,
1997. Defendant claimed that Dr. Bussey executed the affidavit in bad faith and was not entitled to
be believed under oath in a court of law. On July 8, 1999, the Trial Court entered another Order of
Dismissal striking the affidavit of Dr. Bussey from the record and dismissing the case.

                On August 6, 1999, Plaintiffs filed a Motion to Alter or Amend and to Re-Instate
seeking relief from the dismissal pursuant to Rules 60.02(1) and 60.02(5) of the Tenn. R. Civ. P.
Plaintiffs alleged that Dr. Bussey was qualified to testify as an expert and at no time had he
expressed any reluctance to testify until he elected not to testify one day prior to his scheduled
deposition. Plaintiffs asserted they could not foresee that Dr. Bussey would not be willing to testify
after he supplied the affidavit. They also stated that they were unable to obtain another expert
witness in the nineteen day period between Dr. Bussey’s refusal to give a deposition and the hearing
on Defendant’s motion to strike Dr. Bussey’s affidavit and to dismiss the lawsuit.

                 On March 30, 2000, the Trial Court issued a Memorandum Opinion and Final Order
Denying Plaintiffs’ Motion to Alter or Amend. In that opinion, the Trial Court set forth the
“distressfully long and painfully torturous history” of the lawsuit. Interpreting the motion as one
brought pursuant to both Rules 59.04 and 60.02 of the Tenn. R. Civ. P., the Trial Court concluded
that relief was not available to the Plaintiffs under Rule 59.04 because they had adequate time to find
an expert to support their case. Addressing Plaintiffs’ request for relief from the judgment pursuant
to Rule 60.02(1), the Trial Court stated that it was not excusable neglect for Plaintiffs to file a
medical malpractice suit without the benefit of expert testimony to substantiate the allegations, and
that it was not excusable neglect to fail to follow the May 7, 1997, Order to have an appropriate
expert affidavit in the record within two weeks and then claim that a contact with a medical
consulting firm in Georgia should provide the needed affidavit. The Trial Court also pointed out that
it was not excusable neglect to “fail to obtain the services of an expert since Dr. Bussey dropped out
of the case on June 2, 1999, more than nine months ago.” Lastly, the Trial Court concluded that
Plaintiffs’ profound lack of diligence in securing essential expert testimony was not a reason


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justifying relief pursuant to Rule 60.02(5). According to the Trial Court, Rule 60.02(5), which
provides relief for “any other reason justifying relief from operation of a judgment,” only applies in
unique, exceptional, or extraordinary circumstances, which the Trial Court found were not present.


                                                       Discussion

                In the Notice of Appeal filed by Plaintiffs, they appeal only the Order entered on
March 30, 2000. In that Order, the Trial Court refused to alter or amend the judgment pursuant to
Rule 59.04 of the Tenn. R. Civ. P. The Trial Court also refused to grant Plaintiffs relief from the
judgment pursuant to Rules 60.02(1) and 60.02(5) of the Tenn. R. Civ. P.1 Plaintiffs do not take
issue with, not could they realistically do so, the Trial Court’s determination that the state of the
record required summary judgment be granted Defendant once Dr. Bussey’s affidavit was stricken.
Although the Trial Court’s striking of Dr. Bussey’s affidavit is not directly challenged on appeal, it
will be helpful to discuss the propriety of the striking of this affidavit prior to addressing the Trial
Court’s denial of Plaintiffs’ motion pursuant to Rules 59.04, 60.02(1) and 60.02(2).

                In a medical malpractice action, the claimant has the burden of proving: (1) the
recognized standard of acceptable professional practice in the profession and the specialty thereof,
if any, that the defendant practices in the community in which he or she practices or in a similar
community at the time the alleged wrongful action occurred; (2) the defendant acted with less than
or failed to act with ordinary and reasonable care in accordance with such standard; and (3) as a
proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which
would not otherwise have occurred. Tenn. Code Ann. § 29-26-115. This burden must be met with
competent evidence.

               Recently, our Supreme Court in Seffernick v. Saint Thomas Hospital, 969 S.W.2d 391
(Tenn. 1998) affirmed the striking of a physician’s affidavit in a malpractice action when the trial
court determined that physician’s testimony was untrustworthy. In Seffernick, the plaintiff filed a
malpractice action after losing sight in one of his eyes. The plaintiff claimed that the defendants
failed to properly treat his eye injury. Id. at 392. The defendants filed a motion for summary
judgment supported by the affidavit of Dr. Yarborough, one of the defendants. Id. The plaintiff
responded by filing the affidavit of Dr. Worthington, who stated that Dr. Yarborough had deviated
from the standard of care in treating the plaintiff. One of the claimed deviations was not applying
Garamycin Ointment to the plaintiff’s eye injury. Id. Based on Dr. Worthington’s affidavit, the trial
court held that summary judgment was not appropriate and denied the defendants’ motion. Id.
During his deposition, however, Dr. Worthington admitted that the emergency room records showed

         1
           This Co urt granted P laintiffs three extensio ns of time to file their brief. Once the brief was filed, there were
no citations to the record as required by Rule 6 of the Rules of the Court of Appeals. The entire brief discusses whether
the Trial Court abused its discretion in dismissing this case as a sanction for failing to cooperate in the discovery process
pursuant to Rule 37.02 of the Tenn. R. Civ. P. Nowhere in the record is there any indication that this matter was
dismissed as a sanction against Plaintiffs or their counsel pursuant to Rule 37.02 or otherwise. The Trial Court did,
however, e xpress con cerns abo ut Plaintiffs’ counse l’s complianc e with Rule 1 1 of the Te nn. R. Civ. P .

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that Garamycin Ointment had been applied. He further admitted that he could not say that Dr.
Yarborough’s actions actually resulted in the alleged harm to the plaintiff. Id. Based on this
deposition testimony, the trial court granted the defendant’s Motion to Strike the affidavit of Dr.
Worthington finding:

               that there is an inadequate factual and scientific basis for the
               testimony of Dr. Worthington, that Dr. Worthington’s testimony will
               not substantially assist the trier of fact, that many material aspects of
               Dr. Worthington’s testimony, comparing his affidavit with his August
               30, 1995, deposition testimony, cannot be reconciled, and that Dr.
               Worthington’s opinions are, fundamentally, untrustworthy.

Seffernick, 969 S.W.2d at 392. After striking the affidavit of Dr. Worthington, the trial court
reversed its earlier determination and granted the defendants’ motion for summary judgment. Id. at
393. The Court of Appeals reversed the trial court. On appeal, our Supreme Court reversed the
Court of Appeals and affirmed the trial court’s granting of summary judgment. According to the
Supreme Court, pursuant to Tenn. R. Evid. 703, “a trial court must disallow testimony in the form
of opinion or inference when the underlying facts or data indicate a lack of trustworthiness.”
Seffernick, 969 S.W.2d at 393 (citing McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 264-
65 (Tenn. 1997)). It was further stated that Tenn. R. Evid. 703 is “designed to encourage trial courts
to take a more active role in evaluating the reasonableness of the expert’s reliance upon the particular
basis for [the expert’s] testimony.” Seffernick, 969 S.W.2d at 393. Because the trial court had not
abused its discretion in striking the affidavit of Dr. Worthington, the granting of summary judgment
was affirmed. Id.

                 In the present case, Dr. Bussey indicated that he was not “comfortable” giving his
deposition and did not think that this lawsuit would go as far as it had gone. He clearly was
unwilling or unable to stand by the assertions he swore to in his affidavit. As a result, his affidavit
was not trustworthy and was properly stricken by the Trial Court. The admissibility of Dr. Bussey’s
expert testimony by affidavit is within the discretion of the Trial Court. See Seffernick at 393. Once
this happened, what the Trial Court was left with was a case that had been languishing around for
years on the docket only because it had been restored to the active docket with the late filing of an
affidavit that turned out to be unreliable and was properly stricken. It is against this background that
the appeal must be evaluated.

                Plaintiffs assert on appeal that the Trial Court erred in (1) refusing to alter or amend
the judgment pursuant to Rule 59.04, and (2) refusing to grant Plaintiffs relief from the judgment
pursuant to Rules 60.02(1) and 60.02(5) of the Tenn. R. Civ. P. Our scope of review is to determine
if the Trial Court abused its discretion in denying the motion. See Bradley v. McLeod, 984 S.W.2d
929 (Tenn. Ct. App. 1998)(reviewing the denial of a Rule 59.04 motion on the basis of whether the
trial court abused its discretion); Federated Insurance Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn.
2000)(a trial court’s granting of relief pursuant to Rule 60.02(5) will be reversed only for an abuse
of discretion); Toney v. Mueller Co., 810 S.W.2d 145, 147 (Tenn. 1991)(“A motion for relief from


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a judgment pursuant to Rule 60.02 addresses the sound discretion of the trial judge; the scope of
review on appeal is whether the trial judge abused his discretion.”).

                Rule 59.04 of the Tenn. R. Civ. P. provides that a motion to alter or amend a
judgment must be filed and served within 30 days after the entry of the judgment. This Rule applies
to final judgments. Rule 54.02, which is similar, applies to motions to revise interlocutory orders.
In Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000), our Supreme Court listed several factors that
should be considered when additional evidence is submitted in support of a Rule 54.02 motion to
revise a grant of partial summary judgment. While Harris deals with Rule 54.02, the approach and
language used by our Supreme Court is instructive. It was observed in Harris that there were no
Tennessee cases discussing the applicable standard a trial court should apply in ruling on a Rule
54.02 motion to revise a partial summary judgment. The Court, therefore, discussed cases under
Rule 59.04, which it concluded offered guidance. Harris, 33 S.W.3d at 744. In so doing, two
separate standards articulated by the Middle and Western Sections of this Court interpreting Rule
59.04 were rejected, at least insofar as Rule 54.02 is concerned. Specifically, Harris rejected the
decision of the Western Section of this Court in Schaefer v. Larsen, 688 S.W.2d 430 (Tenn. Ct. App.
1984) wherein that Court refused to apply the stringent newly discovered evidence rule to motions
to alter or amend under Rule 59.04, holding that such motions should be looked upon favorably
where the litigants had not yet been afforded a trial. Harris, 33 S.W.3d at 743-44. The Harris Court
also rejected the holding of the Middle Section of this Court in Bradley v. McLeod, 984 S.W.2d 929,
933 (Tenn. Ct. App. 1998), that a Rule 59.04 motion “should not be used to alter or amend a
summary judgment if it seeks to raise new, previously untried legal theories, to present new,
previously unasserted legal arguments, or to introduce new evidence that could have been adduced
and presented while the summary judgment motion was pending.” Harris, 33 S.W.3d at 744.
Striking a middle ground between the opinions in Schaefer and Bradley, the Supreme Court in
Harris held that when additional evidence is submitted in support of a Rule 54.02 motion to revise
a grant of summary judgment, the trial court should consider the following factors, when applicable:

               1)      the movant’s efforts to obtain evidence to respond to the
                       motion for summary judgment;

               2)      the importance of the newly submitted evidence to the
                       movant’s case;

               3)      the explanation offered by the movant for its failure to offer
                       the newly submitted evidence in its initial response to the
                       motion for summary judgment;

               4)      the likelihood that the nonmoving party will suffer unfair
                       prejudice; and

               5)      any other relevant factor.



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Harris, 33 S.W.3d at 745.

                Our Supreme Court in Harris noted that the issue of what standard to apply in ruling
on a Rule 59.04 motion to alter or amend was not directly at issue and, therefore, beyond its reach
in that case. The Court went on to state, however, that “many of the same considerations discussed
herein would be applicable when a litigant submits additional evidence as part of a Rule 59.04
motion to alter or amend a summary judgment.” Harris, 33 S.W.3d at 746 n.4.

                 Applying the “considerations” discussed in Harris to the abuse of discretion standard,
we conclude that the Trial Court did not err in denying Plaintiffs’ Rule 59.04 motion. The alleged
medical malpractice took place on approximately September 9, 1994. The Order denying Plaintiffs’
motion pursuant to Rule 59.04 was entered on March 30, 2000. Over 5 ½ years had passed since the
alleged malpractice and the final Order dismissing the case, and Plaintiffs had not produced any
competent medical evidence to overcome Defendant’s summary judgment motion. Based on the
record, it does not appear that Plaintiffs even began looking for a medical expert until they were on
the eve of dismissal over three years after the original lawsuit was filed. Plaintiffs have made a
minimal and unsuccessful effort to secure competent medical proof and have set forth no adequate
explanation which would convince us to set aside the Trial Court’s judgment. In addition, the
likelihood that Defendant would be unfairly prejudiced by the granting of Plaintiffs’ motion to alter
or amend has been substantially increased due to the significant amount of time that has elapsed.
Of particular note is the fact that Plaintiffs never did provide the Trial Court with any “additional”
evidence. All Plaintiffs did was request additional time in which to try and locate a new expert. We
are unable to evaluate the importance this evidence may have to Plaintiffs’ case since no such
evidence was presented by Plaintiffs. This Court can only guess how long it might take for
Plaintiffs to secure this potential proof, assuming they even can locate an expert to assist them. See
Donnelly v. Walter, 959 S.W.2d 166 (Tenn. Ct. App. 1997)(affirming the trial court’s refusal to
reconsider its granting of summary judgment in a malpractice case when the plaintiff failed to
support her motion to reconsider with any actual evidence making out a disputed material fact as to
the merits of the lawsuit). We affirm the denial of Plaintiffs’ motion to alter or amend the judgment
pursuant to Rule 59.04.

             Next, Plaintiffs claim that the Trial Court erred in denying them relief from the
judgment pursuant to Rules 60.02(1) and 60.02(5) of the Tenn. R. Civ. P. These Rules provide as
follows:

        On motion and upon such terms as are just, the court may relieve a party or his legal
        representative from a final judgment, order or proceeding for the following reasons:

               (1) mistake, inadvertence, surprise or excusable neglect; . . . or (5)
               any other reason justifying relief from the operation of the judgment.

                 Rule 60.02 is not for use by a party merely because he or she is dissatisfied with the
results of the case. Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991); NCNB National Bank


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of North Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). The principle of
finality is firmly embedded in the procedural rules and, therefore, Rule 60.02 is an escape valve that
should not be easily opened. Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991); NCNB
National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). “[M]ere
negligence or inattention of a party is no ground for vacating a judgment against him. Carelessness
is not synonymous with excusable neglect.” Food Lion v. Washington County Beer Bd., 700 S.W.2d
893, 896 (Tenn. 1985); NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 153
(Tenn. Ct. App. 1993). The burden is on Plaintiffs in the present case to show why they were
justified in failing to avoid any mistake, inadvertence, surprise, or neglect. Toney v. Mueller Co.,
810 S.W.2d 145, 146 (Tenn. 1991); Hopkins v. Hopkins, 572 S.W.2d 639, 640 (Tenn. 1978).

                As discussed above, over 5 ½ years elapsed between the alleged malpractice and the
final Order dismissing the case, and Plaintiffs had produced no competent medical evidence to
contest Defendant’s summary judgment motion. This fact is not changed because Plaintiffs’ expert
later determined that he could not or would not back up what he originally said in his affidavit. It
was Plaintiffs’ duty under Rule 56 to provide competent medical proof. It was nine months after
filing before the Rule 60.02 motion was decided by the Trial Court, and no competent medical
evidence was filed by Plaintiffs in the interim. There is no proof in the record which would allow
a conclusion that Plaintiffs have met their burden of showing that they were justified in failing to
avoid the claimed surprise. We affirm the denial of Plaintiffs’ motion pursuant to Rule 60.02(1).

                 We are further of the opinion that Rule 60.02(5) provides Plaintiffs no basis for relief.
Despite its broad language, Rule 60.02(5) is construed narrowly. Federated Insurance Co. v.
Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000); NCNB National Bank of North Carolina v. Thrailkill,
856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn. App. 1992).
The standards of Rule 60.02(5) are even more demanding than those applicable to the other grounds
for Rule 60.02 relief. NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 154
(Tenn. Ct. App. 1993); Duncan v. Duncan, 789 S.W.2d 557, 564 (Tenn App. 1990)(citing Tenn.
Dept. of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)). This Rule is not for the
purpose of relieving a party of free, calculated and deliberate choices that have been made.
Federated Insurance Co. v. Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000). A party remains under a
duty to take legal steps to protect his or her own interests. NCNB National Bank of North Carolina
v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Magnavox Co. of Tenn. v. Boles & Hite
Constr. Co., 583 S.W.2d 611, 613 (Tenn. Ct. App. 1979). Rule 60.02(5) is intended to provide relief
only in cases of overwhelming importance or in cases involving extraordinary circumstances or
extreme hardship. Federated Insurance Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000). We find
no such extraordinary circumstances or extreme hardship present in this case. Plaintiffs did not take
necessary steps to protect their legal interests by furnishing the Trial Court with competent medical
proof sufficient to defeat Defendant’s summary judgment motion. Plaintiffs had more than ample
time to provide this necessary proof. We affirm the denial of Plaintiffs’ motion pursuant to Rule
60.02(5).




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                                           Conclusion

                The judgment of the Trial Court is affirmed, and this matter is remanded for the
collection of costs below. Costs of this appeal are taxed to the Appellants, Freddie Dean Smith and
Anita Ann Smith, and their surety.




                                                     _____________________________________
                                                     D. MICHAEL SWINEY, JUDGE




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