                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  May 22, 2012 Session

               TOM R. SMITH v. THOMAS HARDING POTTER

                  Appeal from the Circuit Court for Davidson County
                     No. 06C1056      Barbara N. Haynes, Judge


                 No. M2011-01560-COA-R3-CV - Filed June 13, 2012


The trial court granted the defendant’s motion for attorney fees and court costs and executed
an order to that effect. The plaintiff filed a motion for relief pursuant to Tennessee Rule of
Civil Procedure 60.02 arguing that the trial court violated his due process rights by awarding
the defendant attorney fees without providing proper notice and the opportunity to be heard.
We reverse the trial court.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.,
J., and B EN H. C ANTRELL, S P.J., joined.

Jay R. Slobey, Nashville, Tennessee, for the appellant, Tom R. Smith.

Thomas Harding Potter, Jamestown, Tennessee, Pro Se.

                                         OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       This case originated as a dispute between two attorneys for unpaid rent. The appellee
(“Mr. Potter”) and the appellant (“Mr. Smith”) entered into three lease agreements that
granted a percentage of Mr. Potter’s gross legal fees to Mr. Smith as rent for office space.
The trial court deemed these agreements unenforceable as unauthorized fee-splitting between
attorneys.

      In a previous appeal initiated by Mr. Smith, this court vacated the trial court’s
judgment, dismissed the appeal for lack of a final judgment, and remanded the case to the
trial court for a finding on the third lease agreement. See Smith v. Potter, No. M2008-01483-
COA-R3-CV, 2009 WL 1162583 (Tenn. Ct. App. Apr. 28, 2009).

        On remand, the trial court granted summary judgment in favor of Mr. Potter. Mr.
Potter filed a proposed order awarding himself attorney fees and court costs. The trial court
approved this order based on a review of Mr. Potter’s affidavit detailing his fees and
expenses. As a result, Mr. Potter was awarded $2,635.43. Mr. Smith never received Mr.
Potter’s proposed order or affidavit because Mr. Potter failed to serve the proposed order on
Mr. Smith at the correct address. Consequently, Mr. Smith did not have an opportunity to
challenge the details of the affidavit before the trial court awarded Mr. Potter’s attorney fees
and costs.

       Upon notice of the trial court’s decision to award Mr. Potter his attorney fees and
court costs, Mr. Smith filed a motion for relief from the order pursuant to Tennessee Rule
of Civil Procedure 60.02. The trial court denied this motion and taxed the costs to Mr. Smith
finding that “although Mr. Potter did not give notice to Mr. Smith by Certificate of Service
on either his Motion or his Order granting Attorney fees . . . this Court sees no harm in
Potter’s actions . . . .”

       This appeal followed. Mr. Smith now argues that the trial court abused its discretion
and violated his due process rights by awarding Mr. Potter attorney fees without providing
Mr. Smith with proper notice and the opportunity to be heard.

                                    S TANDARD OF R EVIEW

       We review a trial court’s decision on a Rule 60 motion for relief under an abuse of
discretion standard. J & B Invs, LLC v. Surti, 258 S.W.3d 127, 132 (Tenn. Ct. App. 2007).
“A trial court abuses its discretion only when it applies an incorrect legal standard, or reaches
a decision which is against logic or reasoning that causes an injustice to the party
complaining.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007). Under this
standard, we are required to uphold the ruling “as long as reasonable minds could disagree
about its correctness.” Id. The abuse of discretion standard does not permit an appellate
court to merely substitute its judgment for that of the trial court. Id. Thus, under the abuse
of discretion standard, we give great deference to the trial court’s decision. Henry v. Goins,
104 S.W.3d 475, 479 (Tenn. 2003).




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                                           A NALYSIS

       On appeal, Mr. Smith argues that the trial court abused its discretion and violated his
due process rights by awarding Mr. Potter attorney fees without providing Mr. Smith with
proper notice and the opportunity to be heard.

       Litigants may seek relief from a final judgment or order for the following reasons:

               (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud
               (whether heretofore denominated intrinsic or extrinsic),
               misrepresentation, or other misconduct of an adverse party; (3) the
               judgment is void; (4) the judgment has been satisfied, released or
               discharged, or a prior judgment upon which it is based has been
               reversed or otherwise vacated, or it is no longer equitable that a
               judgment should have prospective application; or (5) any other reason
               justifying relief from the operation of the judgment.

Tenn. R. Civ. P. 60.02. When a party seeks relief under Rule 60.02, the burden of proof is
on the moving party, and it is that party’s duty to prove by a preponderance of the evidence
that one of the Rule 60.02 grounds for relief exists. Henry, 104 S.W.3d at 482.

        “One of the bedrock principles of this nation’s due process jurisprudence is the right
to notice and an opportunity to be heard before an impartial trier-of-fact.” Karr. v. Gibson,
1998 WL 57536, at *2 (Tenn. Ct. App. Feb. 13, 1998) (citing United States v. James Daniel
Good Real Prop., 510 U.S. 43 (1993), and Phillips v. State Bd. of Regents, 863 S.W.2d 45,
50 (Tenn. 1993)). Due process requires notice that is reasonably calculated, under all the
circumstances, to inform a party of the pending action. See Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 314 (1950); McClellan v. Bd. of Regents, 921 S.W.2d 684, 688
(Tenn. 1996). Mr. Smith never received notification of the proposed attorney fees award
because the certificate of service for the order provided an incorrect address for Mr. Smith.
Thus, prior to the trial court granting Mr. Potter’s request for attorney fees, Mr. Potter did not
provide notice reasonably calculated to inform Mr. Smith of the proposed action.

       This court has previously approved the granting of Rule 60 relief when an adverse
party to a motion did not receive notice of a hearing and was not given an opportunity to
present evidence in order for the trial court to decide the issue on its merits. See Beck v.
Beck, W2011-01806-COA-R3-CV, 2012 WL 1656228, at *8 (Tenn. Ct. App. May 11, 2012).
In Beck, a post-divorce dispute, the trial court entered a default judgment against the ex-wife
when she failed to appear at a hearing. Id. at *6. The ex-wife moved for Rule 60.02 relief,
and the trial court granted her motion based on stipulated facts that the ex-wife had never

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received notice of the ex-husband’s motion to clarify. Id. at *7. The ex-wife asserted that
she never received a copy of the motion by mail, and the ex-husband could not provide proof
in the form of a return receipt or any other documentation. Id. On appeal, this court found
no error in the trial court’s decision and reasoned that granting Rule 60.02 relief was
appropriate since it served the best interest of fair play and substantial justice by granting the
movant an opportunity to present her case. Id. at *8.

        This court has also determined that a failure to provide adequate information on a
certificate of service constitutes “facially insufficient notice.” Frierson v. Johnson, M2006-
02598-COA-R3-CV, 2008 WL 555721, at *7 (Tenn. Ct. App., Feb. 28, 2008); Reynolds v.
Battles, 108 S.W.3d 249, 252 (Tenn. Ct. App. 2003). Also, as a matter of law, an order
resulting from a hearing is void due to insufficient notice. Marshall v. Marshall, M2009-
02463-COA-R3-CV, 2010 WL 4670982, *4 (Tenn. Ct. App. Nov. 16, 2010). Mr. Potter
failed to provide the correct address for Mr. Smith on the certificate of service for the motion
and order concerning attorney fees and court costs.

       The trial court erred when it denied Mr. Smith’s motion for relief from the order
granting Mr. Potter attorney fees because Mr. Smith was not afforded the proper notice to
allow him to challenge the authority for and the reasonableness of the proposed attorney fees
award.1 As a result, the trial court’s order granting Mr. Potter attorney fees and court costs
is void.

                                              C ONCLUSION

        The judgment of the trial court is reversed. We remand this case to the trial court for
further proceedings consistent with this opinion. We tax the costs of this appeal against Mr.
Potter.


                                                               ______________________________
                                                                    ANDY D. BENNETT, JUDGE




        1
          This court notes that Tennessee abides by the American Rule regarding the payment of attorney
fees. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). For a court to award
attorney fees, there must be a statutory authority or a contractual agreement. Id. Otherwise, each party to a
lawsuit bears the expense of his own attorney fees. Id. We are not aware of any authority, and at oral
argument Mr. Potter could not cite to any authority, for an award of attorney fees in this case.

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