                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                        Submitted on Briefs, April 18, 2002

  TRUAN MEEK v. EARL HALL, d/b/a HALL REALTY AND AUCTION
                        COMPANY

                   Direct Appeal from the Circuit Court for Blount County
                     No. L-12721    Hon. W. Dale Young, Circuit Judge

                                      JUNE 4, 2002

                                No. E2001-02474-COA-R3-CV



Sessions Court entered default judgment against defendant. Defendant attempted to appeal to Circuit
Court where that Court held appeal was not timely and Court had no jurisdiction. 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 CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY , J., joined.

Timothy P. Coode, Knoxville, Tennessee, for Appellant.

Jack W. Piper, Jr., Knoxville, Tennessee, for Appellee.



                                            OPINION



               Plaintiff filed an action in General Sessions Court, and a default judgment was
granted to the plaintiff against the defendant on October 25, 2000. A Motion to Vacate that
Judgment was filed on November 27, 2000, contending defendant’s lawyer was tied up in traffic and
did not appear in court at the appointed time. The Motion was overruled by Order of February 28,
2001.

               Defendant then filed an Appeal Bond dated March 13, 2001, and appealed the case
to Circuit Court. The Circuit Court entered Judgment on June 4, 2001, stating the Court had heard
arguments of counsel and had considered the “stipulation as to the facts that were apparent from the
record”, and found that the Motion to Vacate the Default Judgment was not filed in the Sessions
Court clerk’s office within ten days following the entry of judgment, and that the Circuit Court
lacked jurisdiction in the case and remanded it back to the Sessions Court for enforcement of the
Judgment.

                 Defendant then filed a Motion to Reconsider on July 2, 2001. The Circuit Court
conducted another hearing on August 10, 2001, and then entered an Order on September 12, 2001,
finding that the Motion to Reconsider did not contain any new factual or legal basis for the Court
to reverse its prior ruling, and concluded that the Motion to Reconsider had caused unnecessary delay
and increased costs, and he awarded attorney’s fees to the plaintiff which were adjudged against the
defendant. Notice of an Appeal was filed on October 8, 2001.

              As we understand defendant’s argument, he seems to insist that his appeal from
Sessions Court to the Circuit Court was timely, or alternatively that the Circuit Judge refused to give
him Tenn. R. Civ. P. 60 relief.

                In addition to making bond for the purposes of appeal from Sessions Court, the
defendant filed a document in Circuit Court styled: Brief in Support of Motion to Vacate Judgment
under Tenn. R. Civ. P. 60.02, which set forth grounds that he contends should entitle him to have
the Judgment entered in Sessions Court set aside, and the matter reset for hearing. The defendant
also filed an affidavit making oath to the facts set forth in the document.

                 Court pleadings are construed based upon their substance and not their title. See
Starks v. Browning, 20 S.W.3d 645 (Tenn. Ct. App. 1999). In this case, a Motion for Rule 60.02
relief will not lie. See Rule 1, Tenn. R. Civ. P. However, we believe the substantive requirements
of a Petition for Certiorari are satisfied. Accordingly, we hold that the Trial Court had jurisdiction
to entertain the application.

              Plaintiff argues that defendant did not timely file a notice of appeal to this Court. He
argues a Motion to Reconsider is not appropriate because such Motion is not one of the Motions
recognized by Tenn. R. Civ. P. 59.01 that tolls the time for taking steps in the regular appellate
process.

              Judge Koch, in Jimmy Joe Savage, et a., v. Don Hildenbrandt, Court of Appeals,
Middle Section at Nashville, 2001 Tenn. App. LEXIS 661, September 6, 2001, said:

               Tenn. R. Civ. P. 59.01 does not contain a blanket prohibition against all motions to
               reconsider. Rather, it provides that motions to reconsider any of the motions
               permitted by Tenn. R. Civ. P. 59 are not authorized.

               ...

               Regrettably, some lawyers continue to call their Tenn. R. Civ. P. 59.04 motions


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               “motions to reconsider”, despite our repeated warnings of the confusion this
               practice causes. However, the Court must judge motions by their substance,
               rather than their title. (Citations Omitted). Accordingly, the appellate courts have
               repeatedly held that initial post-judgment motions called motions to reconsider,
               should be treated as Tenn. R. Civ. P. 59.04 motions if they request the sort of
               relief available through motions to alter or amend. Harris v. Chern, 33 S.W.3d
               741, 743 (Tenn. 2000); Tennessee Farmers Mut. Ins. Co., v. Farmer, 970 S.W.2d
               453, 455; Willingham v. Gallatin Group, Inc., 2001 Tenn. App. LEXIS 99, No.
               M1998-00990-C0A-R3-CV, 2001 WL 134599, AT *1 N.3 (Tenn. Ct. App. Feb.
               16, 2001). (No Tenn. R. App. P. 11 application filed).

               We hold defendant’s Motion tolled the time for filing a notice of appeal because relief
was sought compatible with motions to alter or amend and that the notice was timely filed from the
date the Court overruled defendant’s Motion.

              We hold that the Trial Court has jurisdiction to consider the issues raised by
defendant in that Court. Accordingly, we remand the case to the Circuit Court for further
proceedings.

               The cost of the appeal is assessed one-half against Truan Meek and one-half against
Earl Hall.




                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS, J.




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