                                                                                          08/10/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  June 6, 2017 Session

                   JUDITH HUSK V. BRANDON THOMPSON

                Appeal from the Circuit Court for Rutherford County
                      No. 70757     Howard W. Wilson, Judge


                            No. M2016-01481-COA-R3-CV


The trial court granted a default judgment against the appellant for claims of conversion,
unjust enrichment, and malicious prosecution. Immediately after granting the default
judgment, the trial court awarded the appellee damages without hearing proof. The
appellant filed a motion to set aside the default judgment. The trial court denied the
appellant’s motion. We affirm the trial court’s decision in all regards except for its award
of damages. The case is remanded for a hearing on damages.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Mitchell Edward Shannon, Murfreesboro, Tennessee, for the appellant, Brandon
Thompson.

David Brent Whelan, Murfreesboro, Tennessee, for the appellee, Judith Husk.

                                        OPINION

                      I. FACTUAL AND PROCEDURAL BACKGROUND

       Judith Husk (“Ms. Husk”) and Brandon Thompson (“Mr. Thompson”) were
involved in a romantic relationship that culminated in the parties’ decision to cohabitate.
In February 2015, the parties entered into a lease to share an apartment in Murfreesboro,
Tennessee. The parties’ relationship ended abruptly on September 9, 2015, when police
arrested Ms. Husk and charged her with domestic assault against Mr. Thompson. Ms.
Husk’s bond contained a condition that prohibited contact between the parties. As a
result of this bond condition, Ms. Husk could not return to the parties’ apartment. Mr.
Thompson requested that the criminal court modify the bond condition to allow contact
with Ms. Husk; however, Ms. Husk objected, so the no-contact condition remained in
place.

       On October 29, 2015, Ms. Husk entered an agreed order in the criminal court that
also contained a no-contact condition. Nevertheless, the court granted Ms. Husk
permission to have her father, Michael Husk (“Mr. Husk”), make arrangements with Mr.
Thompson for Ms. Husk to retrieve her personal property from the parties’ apartment.
Mr. Husk retrieved some of Ms. Husk’s belongings on November 9, 2015. When Mr.
Husk returned the following week with Ms. Husk to retrieve her remaining personal
property, Mr. Thompson was present at the apartment. Shortly thereafter, the police
arrived at the apartment and arrested Mr. Husk for criminal trespass.1 A few days later,
the police arrested Ms. Husk on a warrant sworn against her by Mr. Thompson for
criminal contempt based upon her violation of the no-contact condition.

        Although the no-contact condition prohibited the parties from sharing the
apartment, Mr. Thompson refused either to pay the full rental amount or to vacate the
apartment so Ms. Husk could take occupancy and pay the full rental amount. Ms. Husk
continued to pay her portion of the rent in September, October, and November 2015
despite the fact she could no longer reside at the apartment. When Mr. Thompson failed
to pay his portion of the rent for December 2015 and January 2016, Ms. Husk paid the
full rental amount. Both parties chose not to renew the lease, and Mr. Thompson placed
all of Ms. Husk’s remaining personal property in a storage unit.

        On January 8, 2016, Ms. Husk filed a complaint against Mr. Thompson alleging
conversion, unjust enrichment, and malicious prosecution. After the Rutherford County
Sheriff’s Office notified Mr. Thompson of the lawsuit, he went to the sheriff’s office on
January 13, 2016, where he was served with the summons and complaint. Mr. Thompson
failed to file an answer to the complaint within thirty days of service. Consequently, Ms.
Husk filed a motion for default judgment on February 23, 2016 (forty days after service
of the summons and complaint).

       The trial court heard Ms. Husk’s motion on March 15, 2016. Because Mr.
Thompson failed to appear at the hearing on the motion and to answer the complaint
within thirty days of service, the trial court entered an order granting Ms. Husk a default
judgment and awarding her damages in the amount of $15,577.16. After receiving the
trial court’s order via mail, Mr. Thompson filed a motion to set aside the default


1
  The parties dispute who called the police. Mr. Thompson asserts that apartment security called the
police after Mr. Husk became angry. Ms. Husk avers that Mr. Thompson told her father they could
retrieve Ms. Husk’s remaining personal property on that date because he would not be present at the
apartment; however, when Ms. Husk and her father arrived at the apartment, Mr. Thompson was present
and called the police.
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judgment as well as an answer to the complaint. On June 15, 2016, the trial court denied
Mr. Thompson’s motion to set aside the default judgment. Mr. Thompson appeals.

                                       II. ANALYSIS

       A. Motion to Set Aside Default Judgment

        Mr. Thompson argues that the trial court abused its discretion in refusing to set
aside the default judgment. Tennessee Rule of Civil Procedure 55.02 provides that, “[f]or
good cause shown the court may set aside a judgment by default in accordance with Rule
60.02.” Pursuant to Rule 60.02, a court “may relieve a party or the party’s legal
representative from a final judgment, order or proceeding” based on several grounds.
The ground for relief relevant to this appeal is that of “mistake, inadvertence, surprise or
excusable neglect.” TENN. R. CIV. P. 60.02(1). A moving party seeking relief pursuant
to this ground bears the burden of establishing “‘facts explaining why the movant was
justified in failing to avoid the mistake, inadvertence, surprise or neglect.’” Tenn. Dep’t
of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985) (quoting Tenn. State Bank
v. Lay, 609 S.W.2d 525, 527 (Tenn. Ct. App. 1980)).

       Courts prefer to adjudicate cases on their merits rather than by entering default
judgments. Foster v. Dunn, CA No. 2789, 1986 WL 5239, at *1 (Tenn. Ct. App. May 6,
1986). Thus, when applying Rule 60 to default judgments, courts liberally construe the
rule to allow for relief from the judgment. Barbee, 689 S.W.2d at 867. In reviewing a
trial court’s decision under Rule 60, “we give great deference” to the trial court’s
decision to grant or deny relief from a default judgment. Henry v. Goins, 104 S.W.3d
475, 479 (Tenn. 2003). We will, therefore, uphold the trial court’s decision absent an
abuse of discretion. Id. An abuse of discretion only occurs when a trial court “‘applie[s]
an incorrect legal standard, or reache[s] a decision which is against logic or reasoning
that cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82,
85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

       When deciding whether to set aside a default judgment pursuant to Rule 60.02(1),
courts consider the following three factors: “(1) whether the default was willful; (2)
whether the defendant has a meritorious defense; and (3) whether the non-defaulting
party would be prejudiced if relief were granted.” Henry, 104 S.W.3d at 481 (citing
Barbee, 689 S.W.2d at 866).

      We begin with the first factor pertaining to the willfulness of the default. Willful
conduct includes “‘deliberate choices’” and “‘conduct that is flagrant and unexplained.’”
Discover Bank v. Morgan, 363 S.W.3d 479, 493 (Tenn. 2012) (quoting Barber &
McMurry, Inc. v. Top-Flight Dev. Corp., 720 S.W.2d 469, 471 (Tenn. Ct. App. 1986),
and Hayes v. Hayes, No. M2006-02356-COA-R3-CV, 2007 WL 2580026, at *2 (Tenn.
Ct. App. Sept. 6, 2007)). Mr. Thompson admitted that he received the summons and

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complaint in this matter but failed to respond within thirty days of service. At the hearing
on the Rule 60 motion, Mr. Thompson asserted that he failed to file a timely response
because he “believed no action would be taken in the civil case” until the criminal cases
involving Ms. Husk were resolved. This assertion is equivalent to a claim of ignorance
of the law.

        In McBride v. Webb, No. M2006-01631-COA-R3-CV, 2007 WL 2790681, at *3
(Tenn. Ct. App. Sept. 25, 2007), a case similar in several respects to the present case, the
trial court granted the plaintiff’s motion for default judgment. Id. at *1. The defendant
failed to file an answer to the complaint but admitted that she received the summons and
complaint and recalled reading the summons. The defendant claimed that her failure to
file a response was due to her inability to understand the language contained in the
summons. McBride, 2007 WL 2790681, at *3. The McBride court stated that “[i]t is
well established that ignorance of the law is not excusable neglect or a proper ground for
relief under Tenn. R. Civ. P. 60.02.” Id. As a result, the McBride court concluded that
the defendant acted willfully when she chose not to file a response. Id. Furthermore, as
the Tennessee Supreme Court expressed in Food Lion, Inc. v. Washington County Beer
Board, 700 S.W.2d 893, 896 (Tenn. 1985), “[i]f this Court were to hold that ignorance of
the law is a proper ground for relief under Rule 60.02, . . . it is hard to conceive how any
judgment could be safe from assault on that ground.” Thus, Mr. Thompson’s asserted
misunderstanding of the law does not constitute a proper ground for relief available under
Rule 60.02. It is clear from this record that Mr. Thompson acted willfully when he chose
not to file a response to the complaint. Because the default was willful, we need not
address the remaining factors for setting aside a default judgment. See McBride, 2007
WL 2790681, at *3-4 (concluding that it was unnecessary to address the remaining
criteria after determining that the default was willful).

        Mr. Thompson asserts an additional argument for why he is entitled to relief from
the default judgment based upon Rule 60.02(1). Specifically, Mr. Thompson argues that
the default judgment should be set aside because he never received notice of the motion
for default judgment. “Mistake, surprise or excusable neglect” may be established where
a defaulting party receives “no actual notice of a critical date in a court proceeding.”
Estate of Vanleer v. Harakas, No. M2001-00687-COA-R3-CV, 2002 WL 32332191, at
*6 (Tenn. Ct. App. Dec. 5, 2002). Because a default judgment disposes of a case as
definitively as a trial on the merits, a hearing on a motion for default judgment constitutes
a critical court proceeding. Id. at *7.

       Ms. Husk’s motion for default judgment includes a notice of hearing at the bottom
of the two-page motion along with a certificate of service signed by her attorney stating
that the motion was sent to Mr. Thompson at 2621 Birdsong Avenue, Murfreesboro,
Tennessee.2 If a document contains a certificate of service, “[t]he certificate is prima

2
    Mr. Thompson admitted that the Birdsong Avenue address was the correct address at which he could be
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facie evidence that the document was served in the manner described in the certificate
and raises a rebuttable presumption that it was received by the person to whom it was
sent.” Orr v. Orr, No. 01-A-01-9012-CH-00464, 1991 WL 226916, at *4 (Tenn. Ct.
App. Nov. 6, 1991). This presumption may, however, be rebutted by proof that the
document was not, in fact, received. Harakas, 2002 WL 32332191, at *8. At the hearing
on the motion to set aside the default judgment, Mr. Thompson claimed he did not
receive a copy of the motion for default judgment. Ms. Husk responded that it was
reasonable to believe that Mr. Thompson had received the motion because he had
received both the complaint and the judgment at the Birdsong Avenue address. The trial
court’s determination of this issue came down to credibility, and the trial court decided
against Mr. Thompson. This Court places great weight on a trial court’s credibility
determinations. In re Estate of Baker v. King, 207 S.W.3d 254, 263 (Tenn. Ct. App.
2007). Moreover, we are bound by the trial court’s determination unless “‘there is found
in the record clear, concrete, and convincing evidence to the contrary.’” Rice v. Rice, 983
S.W.2d 680, 682 (Tenn. Ct. App. 1998) (quoting Tenn. Valley Kaolin Corp. v. Perry, 526
S.W.2d 488, 490 (Tenn. Ct. App. 1974)).

        The record shows that Mr. Thompson was, in fact, served the complaint at the
sheriff’s office rather than at the Birdsong Avenue address. The McBride court
confronted a similar issue. As here, the defendant in McBride received service of the
complaint and summons at the sheriff’s office. McBride, 2007 WL 2790681, at *1. The
defendant later claimed that she never received the plaintiff’s motion for default
judgment despite the motion containing a certificate of service with her correct address.
Id. The McBride court did not determine whether the defendant rebutted the presumption
discussed supra, but it noted that “[t]he fact that defendant received the Complaint and a
copy of the Judgment casts doubt on her credibility that she did not receive the other
three mailings.” Id. at *3 n.1. Applying this same reasoning, we find that, although the
sheriff’s department actually served Mr. Thompson with the summons and complaint at
the sheriff’s office rather than the Birdsong Avenue address, the fact that he received
both the complaint and a copy of the default judgment calls into question the veracity of
his claim that he did not receive the motion for default judgment.

       An examination of the record shows that the certificate of service included with
the motion for default judgment does not provide a date indicating when the motion was
sent. Mr. Thompson emphasizes the lack of a mailing date as support for his claim that
he did not receive the motion. The omission of a date, however, is not proof that he did
not receive the motion; it merely shows that it is unclear what day the motion was mailed.
See Johnson v. Jones, No. M2007-02876-COA-R3-CV, 2009 WL 902143, at *2 (Tenn.
Ct. App. Apr. 2, 2009) (stating that the certificate of service on an order of voluntary
dismissal certified that a copy was mailed to the defendants’ counsel despite the omission


served with process. Furthermore, Mr. Thompson received a copy of the default judgment at this address.
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of a mailing date). Accordingly, we find no evidence compelling a contrary conclusion
to that reached by the trial court.

        In light of Mr. Thompson’s deliberate decision not to file a response to the
complaint and his failure to rebut the presumption that he received Ms. Husk’s motion for
default judgment, we conclude that the trial court did not abuse its discretion in refusing
to set aside the default judgment.

       B. Damages

       Mr. Thompson contends that the trial court erred in immediately awarding Ms.
Husk damages after granting the default judgment. Generally, the rule in Tennessee “is
that the defendant, by suffering a default judgment to be entered against him, impliedly
confesses all of the material allegations of fact contained in his complaint, except the
amount of the plaintiff’s unliquidated damages.” Patterson v. Rockwell Int’l, 665 S.W.2d
96, 101 (Tenn. 1984) (citing Adkisson v. Huffman, 469 S.W.2d 368, 377 (Tenn. 1971)).
Thus, a default judgment establishes the non-defaulting party’s right to maintain the
action and recover some damages, but the amount of damages remains an open question
to be determined by proof. Sherick v. Jones, No. 87-351-II, 1988 WL 55028, at *6
(Tenn. Ct. App. June 3, 1988) (quoting Turner v. Carter, 38 Tenn. 520, 525 (1858)). If
the amount of the plaintiff’s damages is liquidated, however, a trial court may
immediately enter a final judgment without a determination by proof. Id. at *7 (quoting
Grace v. Curley, 3 Tenn. App. 1, 3-4 (1926)).

       The trial court heard the motion for default judgment on March 15, 2016. After
hearing the motion, the trial court immediately entered an order granting Ms. Husk’s
motion that states, in pertinent part:

       [Mr. Thompson], having been properly served, having failed to appear at
       this hearing, and having failed to answer within the time proscribed by
       Statute, [Ms. Husk] moves this Court for a ruling against [Mr. Thompson]
       for $13,827.16 . . . . Additionally, assess [Ms. Husk’s] attorney’s fees
       against [Mr. Thompson], in the amount of $1,750.00 . . . for a total
       Judgment in the amount of $15,577.16 . . . .

       IT IS ORDERED, ADJUDGED, AND DECREED, the Plaintiff, Judith
       Husk, is awarded a Judgment in the amount of $15,577.16 . . . against
       Defendant Brandon Thompson.

This order resolved all claims and left nothing to be determined by the trial court;
therefore, it constituted a final judgment. See Ball v. McDowell, 288 S.W.3d 833, 836-37
(Tenn. 2009) (stating that a final judgment “is one that resolves all of the parties’ claims
and leaves the court with nothing to adjudicate”). Thus, the question becomes whether

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the damages involved are unliquidated, requiring a determination by proof before the trial
court could properly enter a final judgment.

       Unliquidated damages are “[d]amages that cannot be determined by a fixed
formula and must be established by a judge or jury.” BLACK’S LAW DICTIONARY (10th
ed. 2014). In contrast, liquidated damages are defined, in pertinent part, as follows:

      [A] set amount of money, or a certain formula, expressly stipulated in a
      contract as the amount of damages to be paid by a party that breaches the
      agreement. Liquidated damages can also be defined as the amount which
      has been ascertained by judgment or by specific agreement of the parties or
      which are susceptible of being made certain by mathematical calculation
      from known factors. . . .

      Damages are “liquidated” when the proper amount to be awarded can be
      determined with exactness from the cause of action as pleaded, i.e., from a
      pleaded agreement between the parties, by an arithmetical calculation, or by
      application of definite rules of law.

22 AM. JUR. 2D Damages § 504 (2017) (footnotes omitted).

        In the instant case, an examination of Ms. Husk’s complaint shows that she
requested compensatory damages for conversion, unjust enrichment, and malicious
prosecution. Concerning her claim for conversion, the complaint avers: “[Mr.
Thompson’s] interference has caused damages to [Ms. Husk] in excess of six thousand
dollars ($6,000.00).” In regard to her claim for unjust enrichment, the complaint states,
in pertinent part:

      26. [Ms. Husk], although not able to use and enjoy the bargained for
      apartment, continued to pay her ½ of the rental amount for the months of
      September, October, and November, which totaled one thousand ninety-
      two dollars ($1092.00).

      27. During the month of December and January 1st – 26th (the end of the
      lease period, [Ms. Husk] timely paid her half but was forced to pay the
      entire rental amount as [Mr. Thompson] did not pay, which would cause a
      default and harm to [Ms. Husk]. The full month rental amount for
      December 2015 was seven hundred and twenty-eight dollars, ($728.00)
      with an additional seventy dollar ($70.00) late fee for December, and a
      prorated rental amount for January 2016 of six hundred ten dollars and
      fifty-eight cents ($610.58) for a total for December and January of one
      thousand four hundred eight dollars and fifty-eight cents ($1408.58).


                                          -7-
Finally, the malicious prosecution section of the complaint avers: “[Ms. Husk] suffered
financial damages and emotional harm as a result of [Mr. Thompson’s] actions in an
amount to be determined at trial but no less than Five Thousand dollars ($5,000.00).”

       After conducting a thorough examination of the complaint, it is clear that the
damages claimed for the conversion and malicious prosecution claims are for an
uncertain amount and are incapable of being ascertained by a fixed formula. Therefore,
the damages sought for those claims are unliquidated. As such, the trial court should
have required Ms. Husk to prove the extent of her claimed damages and allowed Mr.
Thompson an opportunity to rebut her evidence or present evidence of his own on the
question of damages for those claims before entering a final judgment.

       The damages claimed for the unjust enrichment claim are not as easily identified
as either unliquidated or liquidated. At first glance, the damages appear to qualify as
liquidated because they seem ascertainable by a mathematical calculation from the
known facts. For example, the complaint states that Mr. Thompson received the benefit
of Ms. Husk paying $1,092 towards the rental amount for September, October, and
November 2015. The complaint further states that he received the benefit of Ms. Husk
paying the entire rental amount for December 2015 and January 2016, which totaled
$1,408.58. Initially, it appears that these amounts can be combined to equal $2,500.58 in
total benefits received by Mr. Thompson. Upon closer examination of the complaint,
however, it becomes apparent that there are unknown facts that prevent an exact
determination of the damages. The complaint contains no information regarding the
parties’ agreement on paying rent when they entered into the lease. As a result, a
question exists as to what percentage of the rent each party was responsible for paying.
Thus, the amount of the benefit received by Mr. Thompson remains uncertain and
constitutes unliquidated damages. Ms. Husk must prove the extent of her unjust
enrichment damages.

        We conclude, therefore, that the trial court erred in immediately entering a final
judgment on damages before considering any proof of the unliquidated damages claimed
for all three claims.




                                          -8-
                                    III. CONCLUSION

       We affirm the trial court’s decision denying Mr. Thompson’s motion to set aside
the default judgment and vacate the award of damages. The case is remanded for a
hearing on damages. Costs of this appeal are assessed half to the appellant and half to the
appellee, for which execution may issue if necessary.


                                                  ________________________________
                                                  ANDY D. BENNETT, JUDGE




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