                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     March 21, 2002 Session

   COLUMBIA ADVERTISING AGENCY v. RALPH ISENHOUR, ET AL.

                     Appeal from the Chancery Court for Davidson County
                          No. 99-2967II   Carol McCoy, Chancellor



                       No. M2001-01627-COA-R3-CV - Filed June 5, 2002


In this suit to collect payments for advertising services allegedly rendered to defendant pursuant to
an oral agreement, the plaintiff failed to file an order setting the case for trial within the time period
allowed by an agreed scheduling order. Shortly thereafter, the trial court dismissed the case for
failure to prosecute. The plaintiff filed a Tennessee Rule of Civil Procedure 60 motion seeking relief
from the order of dismissal on the grounds that by mistake, counsel had failed to calendar the
scheduling deadlines. The trial court found that plaintiff failed to offer an adequate basis to grant
relief from the order of dismissal under Rule 60 and denied the motion. For the reasons set out in
this opinion, we reverse the decision of the trial court and remand this case for a trial on the merits.


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

JAMES L. WEATHERFORD, SR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J.,
M.S., and PATRICIA J. COTTRELL, J., joined.

Paul W. Duty and John H. Lowe, Goodlettsville, Tennessee, for the appellant, Columbia Advertising
Agency.

Lawrence H. Hart, Nashville, Tennessee, for the appellee, Ralph Isenhour, individually and D/B/A
Isenhour and Associates.

                                               OPINION

        On October 15, 1999, the plaintiff, Columbia Advertising Agency, filed its complaint seeking
to collect $22,100.63 as payment for advertising services allegedly rendered to the defendant
pursuant to a verbal agreement between the parties.

       On July 26, 2000, the defendant filed a motion to dismiss and for summary judgment
pursuant to Tennessee Rules Civil Procedure § 12 and § 56. After ruling that defendant’s motion
would be treated as a singular Rule 56 motion for summary judgment, the trial court denied the
motion and ordered that the matter be set for trial on a date certain.

        On October 5, 2000, the parties entered into an agreed scheduling order which provided:
“that a motion setting this matter for trial or an order otherwise disposing of this matter be filed on
or before March 15, 2001.”

        On January 29, 2001, Plaintiff’s counsel filed a motion to withdraw on the grounds that
plaintiff had disregarded an expense and fee agreement and had engaged in conduct making it
unreasonably difficult for counsel to carry out effective representation.1

            On April 10, 2001, the trial court dismissed the case for failure to prosecute.

        On April 19, 2001, the plaintiff filed a motion to alter or amend judgment or, in the
alternative, for relief from order of dismissal. In support of its motion, plaintiff stated:

                     Subsequent to the filing of the Motion to Withdraw, Plaintiff agreed to
            cooperate with counsel and the motion was stricken. However, the intervention of
            Plaintiff’s failure to cooperate with counsel caused counsel to incur great hardship
            in representation and, by mistake, the scheduling deadlines were inadvertently not
            calendared or met. Plaintiff first became aware of a dismissal of this case upon
            receipt of the Order of Dismissal. Plaintiff has otherwise been engaged in a good
            faith effort to prosecute this case including, but not limited to, the filing of discovery
            requests.

        In ruling on the motion, the trial court noted that plaintiff’s counsel took action on this case
on three separate occasions during the five month period before the March 15, 2001 deadline. In its
order denying relief from judgment pursuant to Rule 60.02, the trial court concluded: “If Plaintiff
looked at this case three times during the five month period, the Plaintiff should have been aware
of the deadline imposed by the scheduling order.”

                                                          ANALYSIS

            Plaintiff presents the following issue in this appeal:

       Whether the trial court erred in denying the motion refusing to set aside or alter or
amend the order of dismissal with prejudice, or to modify the order of dismissal to reflect a
dismissal without prejudice on the grounds of mistake, inadvertence or excusable neglect.



            1
                According to plaintiff’s counsel the motion to withdraw was stricken after plaintiff agreed to coope rate w ith
cou nsel.

                                                                -2-
       Tennessee Rule of Civil Procedure 60.02 allows the trial court to relieve a party or its legal
representative from a final judgment order or proceeding due to mistake, inadvertence, surprise or
excusable neglect.

        When a party seeks relief under Rule 60.02, "the burden is upon movant to set forth in a
motion or petition, or in affidavits in support thereof, facts explaining why movant was justified in
failing to avoid mistake, inadvertence, surprise or neglect." Toney v. Mueller Co., 810 S.W.2d
145,146 (Tenn. 1991) (citations omitted).

       Appellate courts review trial court decisions on Rule 60.02 relief using an abuse of discretion
standard. McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795 (Tenn.Ct.App.
1997).

        The trial court concluded that plaintiff’s counsel should have been aware of the scheduling
order deadline because he took action on the case on three separate occasions in the five months
preceding the deadline. Referring to case law cited by the defendant which held that “mere
carelessness or forgetfulness of a party is not sufficient ground for relief from judgment pursuant to
Rule 60.02.”, the trial court denied the Rule 60.02 motion.

        The cases cited by the defendant2, involve requests for Rule 60.02 relief after the time for
filing an appeal or post trial motion had expired following a trial on the merits. The dismissal in this
case is analogous to the granting of a default judgment. See Nelson v. Simpson, 826 S.W.2d 483,
485 (Tenn.Ct.App. 1991). Courts have construed these rules more liberally in setting aside a default
judgment than those cases where the judgment in question follows a full trial on the merits. See
Tennessee Department of Human Services v. Barbee, 689 S.W.2d 863 (Tenn 1985).

       “Negligence on the part of the moving party is precisely the type of error [Rule 60.02] is
designed to relieve. Tate v. County of Monroe, 578 S.W.2d 642 (Tenn.App.1978). And mistake,
inadvertence, surprise, excusable neglect or misfortune of the moving party's attorney may be
grounds for vacating a default judgment. Keck v. Nationwide Systems, Inc., 499 S.W.2d 266
(Tenn.App.1973).” Tennessee State Bank v. Lay, 609 S.W.2d 525, 527 (Tenn.Ct.App.1980).




          2
            Food Lion, Inc. v. Washington County Beer Boa rd, 700 S.W.2d 893 (Tenn. 1985) (trial court’s granting of
Rule 60.02 relief reversed for failure to seek Rule 59 relief regarding post judgment facts after a trial on the me rits and
notice of ap peal filed w here counsel w as bu sy an d un certain how to pro ceed ); Jefferson v. Pn eum o Service s Corp., 699
S.W.2d 181 (Tenn.Ct.App. 1985) ( Rule 60.02 re lief granted by trial court wh ere atto rney , throu gh o versig ht, failed to
file notice of appe al with in time period provided in Tenn.R.App.P. 4(a) where trial court directed a verdict for defendant
at close o f plaintiff’s pro of in a jury trial; appeals co urt rev ersed findin g that trial courts can only grant Rule 60.02 relief
in this situation under “the m ost extraordinary circumstances” ).



                                                                -3-
        In deciding this issue, courts have considered several factors such as: 1) the actions taken
by the moving party to correct its oversight; and 2) the extent of prejudice to the non-moving party
due to the moving party’s mistake or oversight. Lay, 609 S.W.2d at 527-528.

        In the Rule 60.02 motion plaintiff’s counsel admitted that he had failed to calendar the
scheduling deadlines contained in the agreed order and first became aware of the dismissal of this
case upon receipt of the order of dismissal. He filed his motion for relief within 10 days of the entry
of the order of dismissal.

        We find no proof in this record that the defendant would suffer any prejudice in the setting
aside of the order of dismissal.

         This court has previously considered summary dismissals, without prior notice, pursuant to
local rules of court designed primarily to advance the goal of a just, speedy, and inexpensive
determination of each case. In at least two cases, Sellers v. Anderson, No. 01A01-9703-CV-00114,
1997 WL 653914 (Tenn. Ct. App. Oct. 22, 1997), and Nelson v. The Application Group, Inc., No.
01A01-9703-CV-00137, 1997 WL 706610 (Tenn. Ct. App. Nov. 14, 1997), this court has found that
the trial court should have exercised its discretion to grant Rule 60 relief from the dismissal. Both
involved an attorney’s failure to comply with scheduling deadlines and prompt requests for relief
after the dismissal. The results in those cases are based upon the severity of the consequence of
dismissal to the litigant where the litigant was not at fault and the similarity of this type of dismissal
to a default judgment. A court asked to set aside a default judgment should liberally construe the
applicable rules and set it aside if there is reasonable doubt about the justness of dismissing the case
before it can be heard on the merits. Such principles should be applied to dismissals for failure to
comply with scheduling orders and deadlines. We think such liberality is especially warranted where
dismissal was not preceded by a motion to dismiss, order to show cause, or other notice that
dismissal is imminent. We note that default judgment cannot be entered absent such procedural
safeguards. Tenn. R. Civ. P. 55.01.

       After reviewing the record in this case, we find that the trial court should have granted the
motion. Accordingly, the judgment of the trial court is reversed and this case is remanded to the
chancery court so that a date may be set for a trial on the merits.3

         Costs are taxed to the appellant.


                                                                  ___________________________________
                                                                  JAMES L. WEATHERFORD, SR. J.


         3
           We do not address appellant’s second issue as to whether or not justiciable controversies established in this
case merit the setting aside of the order of dismissal other than to note that the claim was sufficient to survive a motion
for su mm ary ju dgm ent.

                                                           -4-
