                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                            November 14, 2002 Session

      CHELSEA ELIZABETH PIRKLE v. JUSTIN PARRISH PARKER

                    Direct Appeal from the Circuit Court for Knox County
                    No. 1-519-01    Hon. Dale C. Workman, Circuit Judge

                                       FILED JANUARY 13, 2003

                                  No. E2002-01751-COA-R3-CV



The Trial Court refused to set aside the Default Judgment. On appeal, we vacate and remand.

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

HERSCHEL PICKENS FRANKS , J.,delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J. Joined.


Arthur F. Knight, III, Knoxville, for Appellant.

Harold C. Wimberly, Knoxville, for Appellee.



                                             OPINION


              In this action, the Trial Court entered a Default Judgment against defendant, and
subsequently refused to set it aside. Defendant has appealed.

                On February 13, 2002, plaintiff filed a Motion for Default Judgment, stating that
defendant had been served with process on August 22, 2001, and that no Answer had been filed. The
certificate of service on the Motion states that a copy was sent to defendant’s attorney, Michael
Pemberton.

                On March 15, 2002, a default judgment was entered against defendant, and the
judgment recites that defendant was served with process on August 22, 2001 but had failed to answer
or otherwise respond or appear. The Court set a hearing date to assess damages on April 26, 2002.
The certificate of service on the default judgment states that a copy was sent to defendant at his home
address on Jackson Ave.

                On March 27, 2002, an attorney entered a Notice of Appearance as counsel for the
defendant, and filed defendant’s affidavit which states that defendant resided at 301 Lippencott, and
has resided there since January 2002. Further, that plaintiff also instituted a criminal action against
defendant based on the alleged assault which was the gravamen of the complaint in the civil action,
and further that defendant hired Michael Pemberton to represent him in the criminal matter, but
Pemberton never represented defendant in the civil case. The affidavit further states that defendant
was advised by Pemberton that he needed to appear in court on March 15, but defendant understood
he was to be in the Criminal Court, and not the Circuit Court. Defendant states that he went to First
Sessions Court on that date and waited for his name to be called, but he was not called before the
Court.

               Defendant further states that he later learned of the default judgment and retained
counsel to represent him in the civil matter on March 20, 2002. He further stated that he had never
been sued before and was unfamiliar with the process, but that if he had had notice, he would have
appeared to make a defense.

               Defendant also filed a Motion to Set Aside Default Judgment and Relief from
Judgment pursuant to Tenn. R. Civ. P. 60, alleging that he was not served with process pursuant to
Tenn. R. Civ. P. 4, and was not served with written notice of the hearing on the Motion for Default,
and that his failure to appear was due to mistake, inadvertence, and/or excusable neglect.
Subsequently, the Trial Court denied defendant’s Motion, and held a hearing on damages, and
awarded plaintiff compensatory damages of $3,000.00, and punitive damages of $2,000.00.

                Tenn. R. Civ. P. 55.01 requires that “all parties against whom a default judgment is
sought shall be served with a written notice of the application for judgment at least five days before
the hearing on the application, regardless of whether the party has made an appearance in the action.”
This is a departure from prior law, which stated that a party who had not appeared was not entitled
to notice. See Patterson v. Rockwell International, 665 S.W.2d 96 (Tenn. 1984). This rule was
amended, however, in 1996, due to the “liberal Tennessee case law allowing Rule 60 relief.” See
1996 Advisory Commission Comments, Tenn. R. Civ. P. 55.

                 In this case, the Motion for Default shows on the Certificate of Service that it was
served on Mr. Pemberton, defendant’s attorney in the criminal matter, but it was not served on
defendant. Pemberton nor any other attorney ever entered an appearance for defendant in this matter
until after the default judgment was entered. Tenn. R. Civ. P. 55.01 expressly states that the party1
“shall be served with a written notice of the application for judgment”. This Court has previously
held that a default judgment is improper where the defendant was not given notice of the motion for


       1
          A previous version of this rule allowed service on the party or his representative, but the
rule was amended such that it now reads that service must be had on the party. See Herring v.
Interstate Hotels, 2000 Tenn. App. Lexis 552 (Tenn. Ct. App. Aug. 14, 2000).

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default and the proposed date of the hearing on same. Johnson v. Wade, 2000 Tenn. App. Lexis 609
(Tenn. Ct. App. Sept. 6, 2000). See also State ex rel. Jones v. Looper, 86 S.W.3d 189 (Tenn. Ct.
App. 2000) (“judge . . . may enter a default judgment . . . as long as proper notice of hearing on the
motion is given.”) The defendant in this case received neither.

                Plaintiff contends that the notice to Pemberton was sufficient because Pemberton was
representing defendant in the criminal matter arising from the same incident. There is no evidence
that Pemberton ever represented defendant in this case. This Court has previously held that notice
sent to an attorney who previously represented a party in another matter is not sufficient notice to
the party. Jarvis v. Jarvis, 664 S.W.2d 694 (Tenn. Ct. App. 1983). We hold that service on an
attorney who is not representing a party in the case before the court, is not service upon the party.
In this case, while the attorney was not representing defendant in this case, he told defendant to
appear in court, but the defendant mistakenly appeared in the wrong court, which would be expected
due to the representation.

                 The Trial Court granted default judgment with no proof that the Motion was properly
served upon defendant, which establishes a basis to vacate. See First Tennessee Bank Nat. Ass’n v.
McClure, 1990 Tenn. App. Lexis 48 (Tenn. Ct. App. Jan. 31, 1990); see also Nelson v. Simpson, 826
S.W.2d 483 (Tenn. Ct. App. 1991) (trial court should grant relief from default judgment when
plaintiff has failed to comply with required procedural safeguards).

                 Tenn. R. Civ. P. 55.02 states that a default judgment can be set aside for “good cause
shown . . . in accordance with Rule 60.02.” Tenn. R. Civ. P. 60.02 states in part that a party may be
relieved from a judgment based upon “mistake, inadvertence, surprise or excusable neglect”. The
movant has the burden of setting forth facts sufficient to explain why the movant was justified in
failing to avoid the mistake, inadvertence, surprise or neglect. Tenn. Dept. of Human Services v.
Barbee, 689 S.W.2d 863 (Tenn. 1985). The requirements of Tenn. R. Civ. P. 60.02 should be
liberally construed, however, when a party is seeking relief from a default judgment, and the court
should look to “whether the default was willful and . . . assess the extent to which the defaulting
party’s conduct has prejudiced the non-defaulting party.” Nelson v. Simpson, 826 S.W.2d 483, 485
(Tenn. Ct. App. 1991). The party seeking to set the default judgment aside should also demonstrate
that he had a meritorious defense to the action. Patterson v. Rockwell International, 665 S.W.2d 96
(Tenn. 1984).

                In this case there is nothing to show that defendant’s default was culpable or willful
and his affidavit states that he had a meritorious defense which he did not set forth because of the
pending criminal charges. Also, there was no showing that setting aside the default judgment would
prejudice the plaintiff. As this Court has previously recognized, “[i]t seems to be a universal rule
that when there is a reasonable doubt as to whether a default judgment should be set aside upon
proper application, the court should exercise its discretion in favor of granting the application so as
to permit a determination of the cause upon the merits.” Keck v. Nationwide Systems, Inc., 499
S.W.2d 266, 267 (Tenn. Ct. App. 1973). Accordingly, we find the Trial Judge abused his discretion
in not setting aside the Default Judgment, and we vacate the Default Judgment and remand for


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further proceedings consistent with this Opinion.

               The cost of the appeal is assessed to Chelsea Elizabeth Pirkle.




                                                     _________________________
                                                     HERSCHEL PICKENS FRANKS , J.




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