Michael J. Stegman v. Rod Mills D/B/A Rods Towing ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
MICHAEL J. STEGMAN, ) C/A NO. 03A01-9902-CH-00076
FILED
October 13, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
)
Plaintiff-Appellee, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) SEVIER COUNTY CHANCERY COURT
)
)
RODNEY MILLS, d/b/a ROD’S )
TOWING & RECOVERY, )
) HONORABLE TELFORD E. FORGETY,
JR.,
Defendant-Appellant.) CHANCELLOR
For Appellant For Appellee
JOSEPH P. STAPLETON SCOTT D. HALL
Brabson, Yates & Hamilton Sevierville, Tennessee
Sevierville, Tennessee
(On Brief)
DOUGLAS S. YATES
Sevierville, Tennessee
(Oral Argument)
OPINION
Page 1
AFFIRMED AND REMANDED Susano, J.
This case involves a petition filed by Michael J.
Stegman (“Stegman”) seeking to register 1 an Ohio judgment
against Rodney Mills, doing business as Rod’s Towing &
Recovery (“Mills”). The trial court entered an order “
recognizing” the judgment. Thereafter, Mills filed a motion
for relief pursuant to Rule 60.02, Tenn.R.Civ.P., which the
trial court denied. Mills appeals, arguing that the trial
court abused its discretion in denying his Rule 60.02 motion.
I.
On April 8, 1998, Stegman obtained a default
judgment in the amount $3,850.50 against Mills in Clermont
County, Ohio, Court of Common Pleas. On August 25, 1998,
Stegman filed a petition in Chancery Court seeking to
domesticate his judgment. Mills acknowledges that he was
served with process in the registration proceeding on
September 28, 1998. He further acknowledges that he did not
file an answer or otherwise respond to the petition during the
following 30 days. During the same period, Stegman filed a
motion to modify the style of the action so as to include a
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number of aliases for the defendant, which motion was granted
by the trial court on October 9, 1999. In the order, the
trial court further decreed “that thirty (30) days after
September 28, 1998, execution may issue in this action against
the named Defendant under the names Rodney Mills, and/or
Rodger Mills, and/or Rod Mills.” Mills was served with a copy
of this order sometime within 30 days of the date of service
of the original process.
After thirty days had elapsed from the date of
service of original process, the trial court entered an order
recognizing the foreign judgment and directing execution to
immediately issue. Stegman next filed a motion requesting an
award of attorney’s fees and costs incurred as a result of
Mills’ failure to attend a November, 1998, deposition for
which Mills had been subpoenaed. Along with this motion,
Stegman filed a notice informing Mills that a hearing on this
motion was scheduled for December 11, 1998. Both the notice
and the motion were served upon Mills; however, he made no
appearance at the subsequent hearing. The trial court awarded
Stegman $440 in attorney’s fees and costs.
On December 16, 1998, Mills, represented by counsel,
filed a Rule 60.02 motion to set aside the trial court’s order
recognizing the foreign judgment. In an accompanying
affidavit, Mills asserts that he is “a working class man with
no formal education and was unfamiliar with the nature of the
proceeding brought against him in the Sevier County Courts.”
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Further, Mills states that given his limited means, he had
been unable to obtain legal counsel within 30 days of service
of the petition to register the foreign judgment. Finally,
Mills asserts that he has “a good defense” to the registration
of the Ohio judgment in that Ohio lacked jurisdiction over
him. The trial court denied Mills’ motion, reasoning that
Mills “had ample opportunity to defend the Judgment at issue”
and that the relief requested pursuant to Rule 60.02 was not
justified. This appeal followed.
II.
The setting aside of a judgment pursuant to Rule
60.02, Tenn.R.Civ.P. is within the sound discretion of the
trial court; thus, we review a trial court’s denial of a Rule
60.02 motion for an abuse of discretion. Underwood v. Zurich
Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Toney v. Mueller Co.,
810 S.W.2d 145, 147 (Tenn. 1991); Henderson v. Kirby, 944
S.W.2d 602, 605 (Tenn.App. 1996).
III.
A foreign judgment filed for registration in a court
of this state in accordance with T.C.A. § 26-6-104 “has the
same effect and is subject to the same procedures, defenses
and proceedings for reopening, vacating, or staying as a
judgment of a court of record of this state and may be
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enforced or satisfied in like manner.” T.C.A. § 26-6-104 (c)
(1980). “Thus, the grounds and procedures for vacating or
reopening foreign judgments are those contained in
Tenn.R.Civ.P. 60.02.” Biogen Distributors, Inc. v. Tanner,
842 S.W.2d 253, 256 (Tenn.App. 1992). Rule 60.02 provides, in
pertinent part, as follows:
On motion and upon such terms as are just,
the court may relieve a party or the party’
s legal representative from a final
judgment,
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order or proceeding for the following
reasons: (1) mistake, inadvertence,
surprise or excusable neglect....
Rule 60.02, Tenn.R.Civ.P. “As a prerequisite to the
extraordinary relief available under Rule 60.02(1), the movant
is required to set forth in a motion, petition or supporting
affidavits, facts explaining why movant was justified in
failing to avoid mistake, inadvertence, surprise or neglect.”
Bivins v. Hospital Corp. of America, 910 S.W.2d 441, 446
(Tenn.App. 1995).
IV.
In an affidavit supporting his motion, Mills states
that he is an uneducated man who did not understand the nature
of the proceedings against him. On appeal, he argues that
these circumstances constitute excusable neglect, thereby
entitling him to relief under Rule 60.02, Tenn.R.Civ.P. We
cannot agree with this contention. “If this Court were to
hold that ignorance of the law is a proper ground for relief
under Rule 60.02, Tennessee Rules of Civil Procedure, it is
hard to conceive how any judgment could be safe from assault
on that ground.” Food Lion, Inc. v. Washington County Beer
Bd., 700 S.W.2d 893, 896 (Tenn. 1985).
Mills also asserts that he is of limited means and
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could not obtain counsel within 30 days of service of process
on him. Mills cites no authority, and we are not aware of
any, holding that the temporary inability to hire counsel
constitutes excusable neglect. Mills had the opportunity to
respond to the plaintiff’s petition, and could have done so
without the assistance of counsel. If, as Mills suggests, he
was of limited means only for the 30 days after the petition
was served on him, he could have asked for additional time to
respond while he sought the assistance of counsel. While it
is understandable that Mills may have been uncertain as to how
to proceed, we cannot find that this uncertainty excuses his
utter failure to respond to the action filed against him. See
Food Lion, Inc., 700 S.W.2d at 896 (finding attorney’s
uncertainty as to how to proceed does not constitute excusable
neglect).
Mills contends that if the trial court had granted
his Rule 60.02 motion, he could have established that the Ohio
judgment is not entitled to full faith and credit because, as
of the date of that judgment, the State of Ohio lacked
personal jurisdiction over him. Because we find that Mills
did not demonstrate excusable neglect sufficient to warrant
relief under Rule 60.02, we will not address the merits of his
claimed defense to the Ohio judgment. We presume, absent
proper proof to the contrary, that the judgment of the Ohio
court in this case is valid. See Four Seasons Gardening &
Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 441-42 (Tenn.App.
Page 7
1984).
V.
Accordingly, the judgment of the trial court is in
all respects affirmed. Costs on appeal are taxed to the
appellant. This case is remanded to the trial court for the
enforcement of the judgment and collection of costs assessed
below, all pursuant to applicable law.
_________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
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