State v. Looper ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE EX REL. JEFFREY G. JONES, ET AL., v.
BYRON LOOPER
Direct Appeal from the Chancery Court for Putnam County
No. 98-450, Robert Summitt, Chancellor
No. M1999-00662-COA-R3-CV - Decided April 7, 2000
Byron Looper, the former Property Assessor of Putnam County, appeals the default judgment entered
against him in ouster proceedings brought pursuant to Tenn. Code Ann. § 8-47-101, et seq. We
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and
Remanded.
COTTRELL, J., delivered the opinion of the court, in which KOCH, J., and CAIN, J., joined.
Jeffrey G. Jones, David Day, and William D. Birdwell, Cookeville, Tennessee, for the appellees,
State of Tennessee ex rel. Jeffrey G. Jones, et al.
Chantal M. Eldridge, Cookeville, Tennessee for the appellant, Byron Looper.
OPINION
Byron Looper, the former Property Assessor of Putnam County, appeals the default judgment
entered against him in the underlying action, two consolidated ouster proceedings brought pursuant
to Tenn. Code Ann. § 8-47-101, et seq. One of the ouster proceedings was filed by the Putnam
County Attorney and the other action was filed upon the relation of ten named citizens (“the
Relators”). See Tenn. Code Ann. § 8-47-110 (1993). For the following reasons, we affirm the
judgment of the trial court.
On October 23, 1998, Mr. Looper was arrested and incarcerated on criminal charges of first
degree murder and was denied bond after a hearing on November 23. That indictment is relevant to
this appeal only because of the issues raised by the fact of his incarceration. However, Mr. Looper
was already under indictment for offenses related to acts in office. In a March 1998 indictment, he
had been charged with multiple counts of official misconduct.
The two ouster petitions at issue were filed on October 30. Both petitions essentially
mirrored the specific factual allegations in the March 1998 indictment, alleging that Mr. Looper had
knowingly and willfully committed misconduct in office, knowingly and willfully neglected to
perform duties enjoined upon him, and had committed acts which constituted violations of penal
statutes involving moral turpitude, all of which are grounds for ouster from office enumerated in
Tenn. Code Ann. § 8-47-101. The allegations in support of these grounds include, among other
things, (1) arbitrarily reassessing the property of an individual who refused to contribute to Mr.
Looper’s political campaign fund; (2) allowing certain parcels of land to remain unassessed; (3)
removing from the tax roles a parcel of property with the intent to impede the owner’s right to serve
as a public official or run for public office in the county; (4) failing to deliver the property tax roles
to the County Trustee in violation of Tenn. Code Ann. § 8-47-101; (5) erroneously classifying certain
property under the Agricultural, Forest, and Open Space Land Act of 1997 to obtain a benefit; (6)
diverting over ninety (90) hours of paid County employee time to his own use; (7) using County
funds to procure a computer program for his personal use and benefit; and (8) using County
resources to promote his political aspirations. Both petitions sought a judgment of ouster. Both
petitions also alleged that Mr. Looper’s incarceration prevented him from performing the duties of
Property Assessor and requested the court to declare the office vacant pursuant to Tenn. Code Ann.
§§ 8-48-101(4) and 8-48-106. In addition, both Petitioners filed applications for an order of
suspension, pursuant to Tenn. Code Ann. § 8-47-116, seeking to suspend Mr. Looper from
performing any of the duties of the office of property assessor pending final disposition of the
lawsuits.
It is undisputed that the petitions were served on Mr. Looper on October 30, 1998 and
November 5, 1998.1 Attorney Lionel R. Barrett, Jr. filed a notice of appearance on Mr. Looper’s
behalf on November 10, 1998. However, no answers or other responses to the petitions were filed.
On December 17, 1998, both Petitioners filed motions for default judgment and/or for
summary judgment.2 In relevant part, these filings asserted that Mr. Looper’s failure to timely file
a response to their petitions within twenty (20) days of service, as required by Tenn. Code Ann. §
8-47-116, entitled Petitioners to a default judgment pursuant to Tenn. R. Civ. P. 55.01.
Notice dated December 17 was sent that a hearing on all the pending motions was set for
January 26, 1999. Apparently around Christmas, Mr. Looper discharged Mr. Barrett, informing him
that another attorney was handling the case and directing him to forward all files to the specifically
named lawyer, Mr. Jerry Burgess. Mr. Barrett filed a motion to withdraw as counsel on January 20,
1999, and it is from the affidavit filed with that motion that we learn the time frame and
1
On November 6, the judge before whom these cases were pending entered an order recusing
himself. On November 18, the Chief Justice appointed a special judge to hear these matters.
2
The motion for summary judgment asked the court to declare the office of Property Assessor
vacant due to Mr. Looper’s incarceration. This motion was never ruled upon and is not relevant to
the issues in this appeal.
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circumstances of Mr. Barrett’s discharge by Mr. Looper.3 Mr. Looper retained his present counsel
two days before the hearing.
No response, pleading, or other document was filed by Mr. Looper in this matter until 8:50
a.m. on the day of the 9:00 a.m. January 26 hearing, when Mr. Looper, though counsel, filed, inter
alia, answers to the petitions and responses in opposition to the motions for summary judgment.
These documents were served on opposing counsel moments before and actually during the hearing.
The trial court proceeded with the hearing on the motions for default judgment. At the close
of the hearing, the court observed:
This is a very simple procedure that you take in these matters. You get served and
you answer and all you have to do is just say not guilty or I didn’t do it. You don’t
have to file a big answer, but you have to file something. In this case, nothing was
filed in twenty days and nothing was filed in thirty days and no excusable neglect has
been proven to this court by any affidavit. This type of action is one that generally
requires expedition, expeditious action. It’s a very serious matter, a very severe
matter. The court feels and finds in this case that there was ample time for an
answer, a brief, small answer of any kind. And that to come up here on the last hour
and file something is not permissible.
The trial court entered an order granting default judgment against Mr. Looper on the basis
that he had been properly served with process and had failed to file an answer as required by law.
The court specifically found that there was no evidence in the record concerning excusable neglect.
Finally, the order granted the relief sought in the petitions, entry of a judgment of ouster.
On February 4, 1999, Mr. Looper filed a motion to set aside default judgment pursuant to
Tenn. R. Civ. P. 55.02 and 60.02. He argued that the default judgment should be set aside because
he had filed an answer prior to entry of the judgment and had a meritorious defense to the actions,
in that he did not willfully commit any act of misconduct or neglect of office. He also claimed that
his failure to file a timely answer was due to his former counsel’s actions and his inability to obtain
new counsel until shortly before the scheduled hearing. Mr. Looper also asserted that the default
judgment deprived him of his property interest in his job without due process because there had been
no proof of any grounds justifying his ouster.
After a hearing on March 3, 1999, the trial court denied the motion to set aside the default
judgment and stated:
3
The affidavit also states that Mr. Burgess had informed Mr. Barrett that he was not
representing Mr. Looper in the ouster actions. On February 16, 1999, the trial court entered a nunc
pro tunc order granting the motion to withdraw, effective January 21, 1999. It should be noted that
both Mr. Barrett and Mr. Burgess appeared on Mr. Looper’s behalf at a hearing in the murder case
on Mr. Looper’s motion to set bond on November 23, 1998.
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The situation still remains as I expressed in the earlier hearing that this is a very
serious case which should be expedited. The statute provides for twenty days. No
action was taken in twenty days. Sometime thereafter, Lawyer Barrett was fired.
However, there was never a request for any extension of time within the twenty days
or, matter of fact, forever.
The Court considered most all of these issues at the original hearing and the Court
finds that there has [sic] been no new circumstances or reasons why the original
ruling should not stand.
I. Standard of Review
Mr. Looper argues that the trial court erred in entering the default judgment against him and
in refusing to set aside the default judgment. The decision to enter a default judgment is reviewed
for abuse of discretion. See Patterson v. Rockwell Int'l, 665 S.W.2d 96, 100 (Tenn. 1984). Similarly,
motions to set aside default judgments are addressed to the trial court's discretion. See Moore v.
Palmer, 675 S.W.2d 192, 194 (Tenn. Ct. App. 1984); Henson v. Diehl Machines, Inc., 674 S.W.2d
307, 310 (Tenn. Ct. App. 1984). A trial court’s denial of a motion to set aside a default judgment,
like the decision to enter a judgment by default, will not be reversed absent an abuse of discretion.
See Nelson v. Simpson, 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991); Patterson, 665 S.W.2d at 100-
01. Thus, our role is to determine whether the trial court abused its discretion.
A party seeking to have a lower court’s holding overturned on the basis of abuse of discretion
undertakes a heavy burden. The abuse of discretion standard is intended to constrain appellate
review and implies “less intense appellate review and, therefore, less likelihood of reversal.” BIF
v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988) (no
Tenn. R. App. P. 11 application filed). As a general principle, an appellate court will not reverse a
decision that lies within the discretion of the trial court unless it affirmatively appears that the lower
court’s decision was against logic or reasoning and caused injustice to the complaining party. See
Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). The fact that a decision is discretionary with
a trial court necessarily implies that the trial court has a choice of alternatives among a range of
acceptable ones; the reviewing court’s job is to determine whether the trial court’s decision is within
the range of acceptable alternatives, given the applicable legal principles and the evidence in the
case. See BIF v. Service Constr. Co., 1998 WL 72409, at *3.
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II. Default Judgment
A judgment by default is a final order disposing of a case on its merits, like any other
judgment. A judgment by default is generally considered an admission of all the properly pleaded
material allegations of fact in the complaint, except the amount of unliquidated damages. See
Patterson, 665 S.W.2d at 101.
The essence of a default judgment is that a nonmovant fails to take a step required
by a rule of practice or of the court. A default judgment contemplates a lack of
responsiveness by defendant such that plaintiff is entitled to judgment as a matter of
policy; defendants are not to be allowed to prolong litigation by imposing procedural
delays. The default judgment protects a diligent party from continual delay and
uncertainty as to his or her rights.
49 C.J.S. Judgments, §196 (1997).
The Tennessee Rules of Civil Procedure authorize the entry of a judgment by default where
a party “has failed to plead or otherwise defend as provided by these rules” as long as specified
procedural requirements are met. See Tenn. R. Civ. P. 55.01. The party against whom default
judgment is sought must be served with a written notice of the application for default judgment at
least thirty (30) days before a hearing is held on the matter. See id. Mr. Looper does not dispute that
he was properly served, through his counsel, with the motion for default judgment and notice that
a hearing on that motion was to be held on January 26, 1999. Mr. Looper’s real challenge is, in
essence, an argument that he did file, or should have been allowed to file, an answer.
A. Failure to Defend
In order to determine whether the trial court acted within the range of permissible alternatives
available to it in granting the motion for default judgment, we must examine the prerequisite that
the nonmovant failed to defend the lawsuit as provided by the rules. See Tenn. R. Civ. P. 55.01.
Generally, this becomes a question of whether the defendant filed an answer or other allowable
defensive pleading within the time limits established by rule, or in this case, by statute.
The ouster statutes establish some specific procedural requirements unique to ouster
proceedings. Particularly relevant to the question before us are the limitation of allowable pleadings
to the petition or complaint and an answer, see Tenn. Code Ann. § 8-47-115, and the provision
shortening the normal time for answering, see Tenn. Code Ann. § 8-47-114. The provision
establishing the time to answer states:
Upon the filing of the complaint or petition for the writ of ouster, a summons shall
issue for the defendant, and there shall accompany the summons and be served upon
the defendant a copy of the complaint or petition filed against the defendant, and the
defendant shall have the right to answer within twenty (20) days from such service.
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Tenn. Code Ann. § 8-47-114.4 The parties do not dispute that this provision set the applicable period
in which to file a timely answer.
The parties do dispute, however, whether an enlargement of time, upon proper motion, is
available in ouster proceedings. Petitioners assert that the twenty day time limit on filing an answer
cannot be enlarged because the ouster statutes do not specifically allow such enlargement.
According to this argument, the trial court lost authority to allow Mr. Looper to file an answer after
November 25 and, therefore, could not have abused its discretion in granting a default judgment
since no answer was filed within that time.
However, in State ex rel. Leech v. Wright, 622 S.W.2d 807 (Tenn. 1981), the Supreme Court
specifically held that the Tennessee Rules of Civil Procedure apply in ouster actions. See Wright,
622 S.W.2d 810. While holding that any “express provision” of the ouster statutes would prevail
over the Rules of Civil Procedure where they were in conflict, the Court found that where the ouster
statutes did not expressly address a procedural issue, the rules would govern. See id. at 810-11.
As Petitioners have noted, the ouster statutes do not address the availability of extensions of
time within which to file an answer.5 The Rules of Civil Procedure, however, include such a
provision which, in accordance with the holding in Wright, applies to this ouster proceeding. Rule
6.02, in pertinent part, states:
When by statute or by these rules or by a notice given thereunder or by order of court
an act is required or allowed to be done at or within a specified time, the court for
cause shown may, at any time in its discretion, (1) with or without motion or notice
order the period enlarged if request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order, or (2) upon motion
made after the expiration of the specified period permit the act to be done, where the
failure to act was the result of excusable neglect, but it may not extend the time for
taking any action under Rules 50.02, 59.01, 59.03 or 59.04, except to the extent and
under the conditions stated in those rules.
See also Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997) (the granting of a continuance
lies within the trial court’s discretion).
4
This provision applies notwithstanding the longer period for answering set out in Tenn. R.
Civ. P. 12.01. In State ex rel. Leech v. Wright, 622 S.W.2d 808, 810-11 (Tenn. 1981), the Supreme
Court stated, “We have no hesitancy in holding that if there is any conflict between any express
provision of the ouster statutes and the Tennessee Rules of Civil Procedure, the ouster statute should
prevail.” This point is purely academic, however, inasmuch as Mr. Looper’s answer would not have
been timely even if Rule 12.01's thirty day rule applied.
5
Tenn. Code Ann. § 8-47-119(b) allows continuances of the trial for good cause shown.
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The record is clear that no motion for extension of time was filed within the twenty days
provided in the ouster statutes for answering. In fact, no such motion was ever filed. The only
reason we are compelled to examine this issue is Mr. Looper’s assertion that default judgment is not
appropriate because he filed an answer prior to the court’s actual consideration of the motion for
default judgment, albeit ten minutes before the hearing on the motion. This assertion implies that his
very late-filed answer included a motion for an extension of time within which to file his answer.
It also directly challenges the trial court’s specific finding that Mr. Looper had “failed to file an
answer as required by the laws of the State of Tennessee.” We are of the opinion that the trial court’s
finding is consistent with applicable legal principles.
First, even if Mr. Looper’s answer can be considered to have been accompanied by an
implied motion for extension of time in which to answer, under Tenn. R. Civ. P. 6.02, quoted above,
the trial court had the discretion to deny such a motion if it was not satisfied that the failure to file
the answer was due to excusable neglect. The trial court specifically found there was “no evidence
in the record concerning excusable neglect.”6
Second, Rule 8.02 of the applicable Local Rules of Court requires that any response to a
motion, including counter-affidavits, be filed at least twenty-four (24) hours before the hearing on
the motion. Likewise, Tenn. R. Civ. P. 6.04 requires that affidavits in opposition to a motion be
served not later than one (1) day before the hearing on the motion, absent permission of the court.
Under both these rules, any affidavits filed by Mr. Looper on the morning of the hearing attempting
to justify the failure to file a timely answer were themselves not timely. The trial court could
properly refuse to consider such affidavits or other response to the motion for default judgment.
Third, we find unpersuasive Mr. Looper’s basic argument that an answer filed at any time
before entry of a default judgment eliminates the trial court’s discretion to grant judgment by default
and eliminates the need to show excusable neglect. We have found no authority supporting either
of these conclusions. To the contrary, this court has stated:
The belated filing of an answer is not an adequate response to a
motion for default. There must be some application to the court for
relief from the failure to timely file an answer.
Rosche v. Von Holten, No. 01A01-9012-CH-00466, 1991 WL 74263 at *5 (Tenn. Ct. App. May 10,
1991) (no Tenn. R. App. P. 11 application filed).
The language of Rule 55.01 makes it clear that a judge, in the exercise of sound judicial
discretion, may enter a default judgment against a party who has failed to plead or otherwise defend
6
See Section III on the motion to set aside the default judgment for a discussion of the
requisites for showing excusable neglect. We agree with the trial court that the requirements for
showing excusable neglect in the context of filing a late answer are the same as for setting aside a
default judgment based upon failure to file a timely answer.
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in accordance with the rules, as long as proper notice of hearing on the motion is given. See Tenn.
R. Civ. P. 55.01; Patterson, 665 S.W.2d at 100. Mr. Looper did not file an answer in accordance
with the rules. Under the rules, an extension of time within which to file an already overdue
response is available in the discretion of the trial court, for good cause shown, and upon a showing
of excusable neglect. See Tenn. R. Civ. P. 6.02. While trial courts generally have discretion to allow
late filings, they are not compelled to do so.
Mr. Looper bases his argument that even an untimely answer precludes entry of default
judgment on Tolbert v. Tolbert, No. 03A01-9406-CV-00230, 1994 WL 705230 (Tenn. Ct. App. Dec.
15, 1994) (no Tenn. R. App. P. 11 application filed) and BellSouth Adver. & Publ’g Corp. v. Bonilla,
No. 01A01-9505-CH-00213, 1995 WL 611283 (Tenn. Ct. App. Oct. 19, 1995) (no Tenn. R. App.
P. 11 application filed). We are unpersuaded that either of these cases provides support.
In Tolbert, the defendant filed an answer within the time for responsive pleadings.
Notwithstanding that fact, the plaintiff filed a motion for default judgment. In a footnote in our
opinion on appeal, this court stated, “A default judgment is not appropriate when an answer has been
filed.” Tolbert, 1994 WL 705230 at * 1 n. 1. Mr. Looper bases his argument on this language,
stating “[i]t is unclear from the Tolbert decision whether this proposition [the rule stated in the
footnote] holds true only when a timely answer has been filed.” We think a timely answer precludes
default judgment under the clear language of Tenn. R. Civ. P. 55.01, but that same language clearly
authorizes entry of default judgment where no answer has been filed which complies with the time
limitations established by the rules.
Nor does the Bonilla case support Mr. Looper’s argument. In Bonilla, the defendant did not
file a responsive pleading, and the trial court entered a default judgment and denied a motion to set
aside that judgment. The defendant finally filed an answer on the same day he filed his notice of
appeal, on the last day for filing a notice of appeal. This court held that “[t]he long delayed tender
of an answer just six minutes before the Trial Court lost jurisdiction of the controversy was an
unacceptable cure for the previous delay.” Bonilla, 1995 WL at 611283 at * 4. We find nothing in
this holding to support Mr. Looper’s argument that the untimely filing of an answer only minutes
before the court’s consideration of a motion for default judgment should be allowed and the motion
denied “as a matter of course.”
Mr. Looper failed to file an answer or otherwise defend the complaints in these actions in a
manner or time period provided by the Rules of Civil Procedure. Thus, the trial court had discretion
to grant the default judgment.
B. Requirements of the Ouster Statutes
Mr. Looper also argues that default judgment is simply inappropriate and unavailable in
ouster proceedings on the basis that the public interest demands that duly-elected officials not be
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removed from office without proof of misconduct.7 While we agree that removal of an officeholder
is a matter of serious significance to the officeholder and to the public, we are not convinced that the
public interest would be served by allowing a defendant officeholder to retain his or her office, in
the face of substantive claims of misconduct, by failing or refusing to respond to those claims.
In enacting the ouster statutes, Tenn. Code Ann. § 8-47-101, et seq., the General Assembly
has considered and balanced the various interests involved in dealing with public officials accused
of misconduct in office. Both the legislature and the courts have recognized the interests of a duly-
elected officeholder. For example, an official cannot be removed or subjected to removal litigation
except upon allegations of willful misconduct, willful failure to perform duties of the office, conduct
involving moral turpitude, or other grounds specified in the ouster law.8 See In re Kelley, 209 Tenn.
280, 285, 352 S.W.2d 709, 711 (1961). Our courts have recognized “that ouster proceedings should
not be brought unless there is a clear case of official dereliction” See Wright, 622 S.W.2d at 818; see
also State ex rel. Thompson v. Walker, 845 S.W.2d 752, 759 (Tenn. Ct. App. 1992).
The Ouster statute is a salutary one, but those administering it should guard against
its over encroachment. Shreds of human imperfections gathered together to mold
charges of official dereliction should be carefully scanned before a reputable officer
is removed from office. These derelictions should amount to knowing misconduct
or failure on the part of the officer if his office is to be forfeited; mere mistakes in
judgment will not suffice.
7
Mr. Looper’s actual statement is that “controversies respecting title to public office”
should be adjudicated on the merits, and he cites Sheridan v. McCurnin, 124 N.J.L. 493, 495-96, 12
A.2d 255, 257 (N.J. Super. 1940) for that principle. We would note that Sheridan was a quo
warranto action which involved claims by competing parties to a position and, like quo warranto
proceedings in Tennessee, raised issues regarding the right to hold office, as opposed to ouster for
misconduct.
8
Tenn Code Ann. § 8-47-101 provides:
Every person holding any office of trust or profit, under and by virtue of any of the
laws of the state, either state, county, or municipal, except such officers as are by the
constitution removable only and exclusively by methods other than those provided
in this chapter, who shall knowingly or willfully commit misconduct in office, or
who shall knowingly or willfully neglect to perform any duty enjoined upon such
officer by any of the laws of the state, or who shall in any public place be in a state
of intoxication produced by strong drink voluntarily taken, or who shall engage in
any form of gambling, or who shall commit any act constituting a violation of any
penal statute involving moral turpitude, shall forfeit such office and shall be ousted
from such office in the manner hereinafter provided.
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State ex rel. Estep v. Peters, 815 S.W.2d 161, 165 (Tenn. 1991) (quoting Vandergriff v. State ex rel.
Davis, 185 Tenn. 386, 392-93, 206 S.W.2d 395, 397 (1937)).
However, the ouster statutes also reflect the General Assembly’s deep concerns regarding
allegations of misconduct by public officials. They establish special, expedited judicial procedures
for the removal of errant officials. Recognizing the gravity of accusations of misconduct in public
officials, these procedures authorize the court hearing the matter to suspend the official pending a
final hearing and determination.9 Tenn. Code Ann. § 8-47-116. A hearing on a motion to suspend
can be held on as little as five (5) days’ notice. Tenn. Code Ann. § 8-47-117. As discussed earlier,
the statutes also limit the number of pleadings allowed and shorten the usual time permitted to
answer petitions or complaints. Tenn. Code Ann. §§ 8-47-114, 8-47-115. Continuances of the trial
by agreement of the parties is expressly prohibited. Tenn. Code Ann.§ 8-47-119. Both the trial court
and the appellate court are directed to give ouster cases precedence. Tenn. Code Ann. §§ 8-47-119,
8-47-125. In addition, the legislature has determined that proceedings in ouster actions are to be
“summary.” Tenn. Code Ann. § 8-47-119.
Based on the language of the statutes, our courts have held that the legislature intended
ouster actions to be conducted in speedy summary proceedings. See Wright, 622 S.W.2d at 810.
The object of the ouster statutes has been described as “to rid the public of unworthy officials,” State
ex rel. Milligan v. Jones, 143 Tenn. 575, 577, 224 S.W. 1041, 1042 (1920), and “to improve the
public service, and to free the public from an unfit officer.” State v. Howse, 134 Tenn. 67, 78, 183
S.W. 510, 513 (1915).
Mr. Looper has presented no binding authority in support of his assertion that default
judgments are inappropriate in ouster cases. Furthermore, his argument ignores the "cardinal rule"
of statutory construction: to give effect to legislative intent. Rippeth v. Connelly, 60 Tenn. App. 430,
433, 447 S.W.2d 380, 381 (1969); see Schering-Plough Healthcare Products, Inc. v. State Bd. of
Equalization, 999 S.W.2d 773, 775 (Tenn. 1999). The General Assembly has demonstrated its intent
to expedite ouster proceedings. Without the consequence of default, an officeholder could delay trial
and final determination of the charges of misconduct against him in contravention of the clear
legislative intent and contrary to the public interest. As the Supreme Court held in State ex rel.
Milligan v. Jones, the ouster statutes should be construed in a way to accomplish their purpose of
freeing the public from unworthy officials, and construing the statutes to preclude judgment by
default is not, in our opinion, consistent with the objectives of the statutes.
In State ex rel. Ralston v. Showalter, 189 Kan. 562, 370 P.2d 408 (1962), and its companion
case, State ex rel. Ralston v. Blain, 189 Kan. 575, 370 P.2d 415 (1962), the Supreme Court of Kansas
considered the propriety of a default judgment in ouster cases. Relying upon the nature of ouster
9
The Petitioners moved for such suspension. The suspension hearing, required by Tenn.
Code Ann. §8-47-117, was originally set for November 12, 1998. Upon recusal of the original
judge, however, the hearing was continued. It was later set to be heard on January 26, 1999 along
with the other /pending motions.
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actions as civil proceedings, the court determined that judgment by default was available in ouster
proceedings on the same basis it was available in other civil actions. See Blain, 189 Kan. at 578, 370
P.2d at 417. The ruling of our Supreme Court in State ex rel. Leech v. Wright, 622 S.W.2d at 811,
that the Rules of Civil Procedure apply in ouster actions, requires a similar conclusion. In addition,
the Kansas Supreme Court observed that the Kansas ouster statute was “designed to constitute a
summary suit; to avoid waste of time.” Blain, 189 Kan. at 578, 370 P.2d at 418. Observing that
without a timely answer being filed, no issues were framed for trial by the court, eliminating the need
for taking of or weighing of evidence, the court found that the object of ouster proceedings is to
protect and preserve the office and prevent its further embarrassment by the unfaithful holder. See
Showalter, 189 Kan. at 569, 370 P.2d at 414.
Having had notice of the pendency of the proceeding and thereby afforded the
opportunity of being heard, but having failed to answer the petition, the defendant
has thus tacitly confessed the truth of the charges. In such a case, judgment may be
rendered on the record without any evidence being introduced.
Id.
The purposes underlying judgment by default are consistent with the legislative intent that
ouster actions proceed summarily and expeditiously. In examining the purpose behind the Kansas
ouster statute’s provision limiting pleadings to the petition and answer, as does Tennessee’s statute,
the Kansas Supreme Court stated, “It is clear that the legislature intended to guard against whatever
real of [sic] fancied advantage an incumbent official thought would accrue to his side of the litigation
by a designed course of procrastination in avoiding joining issues with the state’s petition within the
time required.” Id. at 412.
We find that judgment by default, pursuant to the Rules of Civil Procedure, is available in
ouster actions.
III. Motion to Set Aside Default Judgment
Mr. Looper also appeals the decision of the trial court refusing to set aside the judgments by
default. Rule 55.02 of the Tennessee Rules of Civil Procedure provides:
For good cause shown the court may set aside a judgment by default in accordance
with Rule 60.02.
A party seeking relief under Rule 55.02 must satisfy the court that it is entitled to relief based
on one of the grounds in Tenn. R. Civ. P. 60.02 and that it has a meritorious defense to the plaintiff's
suit. See Tenn. R. Civ. P. 55.02; Patterson, 665 S.W.2d at 100; Turner v. Turner, 739 S.W.2d 779,
780 (Tenn. Ct. App. 1986). Further, the party seeking relief from a judgment has the burden of
proving he or she is entitled to relief. See Nelson, 826 S.W.2d at 485; Walker v. Baker, 738 S.W.2d
194, 196 (Tenn. Ct. App. 1987). Rule 60.02 provides for relief, “on such terms as are just,” from
final judgments, orders, or proceedings based on the following grounds:
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(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.
Mr. Looper asserts that the failure to file a timely answer was due to “excusable neglect” as
that term is used in the rule. As discussed more fully earlier in this opinion, motions to set aside
default judgments are addressed to the trial court's discretion, and we will not reverse absent an
abuse of discretion. See Nelson, 826 S.W.2d at 485; Patterson, 665 S.W.2d at 100.
Tennessee courts generally hold that an attorney’s negligence, without more, does not
constitute excusable neglect. See Terminix Int'l Co., L.P. v. Tapley, No. 02A01-9701-CH-00028,
1997 WL 437222 at *3 (Tenn. Ct. App. Aug. 4, 1997) (no Tenn. R. App. P. 11 filed); see also
Barber & McMurry, Inc. v. Top-Flite Dev. Corp., 720 S.W.2d 469, 471 (Tenn. Ct. App. 1986)
(holding that an attorney's preoccupation with other business is not grounds for relief from a default
judgment); Munday v. Brown, 617 S.W.2d 897, 900 (Tenn. Ct. App. 1981) (holding that a defendant
is not entitled to relief from default judgment because notice to an attorney of filing of motions and
orders is constructive notice to the client, even when the client did not have actual notice).
Relying upon Terminix Int’l Co. v. Tapley, Mr. Looper argues that an attorney’s gross
negligence can constitute excusable neglect justifying setting aside a default judgment. While we do
not disagree with Mr. Looper’s reading of Tapley, we find nothing in this record to show conduct
by Mr. Looper’s counsel which approaches the actions by the attorney involved in Tapley. In that
case, the attorney undertook to represent parties without informing them that he was under
suspension from the practice of law, a situation which made his representation legally impossible.
The trial court in Tapley found excusable neglect justifying the setting aside of a default judgment,
and this court found the trial court had not abused the discretion granted it under Tenn. R. Civ. P.
55.02. See Tapley, 1997 WL 437222 at *3.
Having reviewed the affidavits and other documents filed in support of the motion to set
aside the default judgment herein, as well as the material supporting Petitioners’ opposition to the
motion, we cannot say that the trial court in this case abused its discretion in finding that Mr. Looper
had not shown excusable neglect.
It is undisputed that Mr. Looper was properly served with the petitions at issue. The
Relators’ petition specifically prayed that:
Service of process issue to the Defendant pursuant to law and that Defendant answer
the Petition within twenty (20) days as provided by T.C.A. 8-47-114.
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The record shows that Mr. Looper did not timely file an answer. Nor did he seek an enlargement of
time in which to file his answer.
In early November, Mr. Burgess, while not formally entering an appearance on Mr. Looper’s
behalf, participated in a conference with Petitioners’ counsel and the trial judge in which Mr.
Burgess asked for a continuance of the hearing on petitioners’ motions to suspend Mr. Looper from
office pending a final determination, which hearing had been set for November 12.10 Mr. Barrett,
who had been representing Mr. Looper in several matters including the criminal case involving
charges of misconduct, filed a notice of appearance in these cases on behalf of Mr. Looper on
November 10, 1998. Mr. Barrett and Mr. Burgess appeared on Mr. Looper’s behalf in the murder
case on November 23. Mr. Barrett’s office participated in a telephone conference with the new trial
judge and Petitioners’ counsel on December 17 to set a date for the suspension hearing. The motions
for default judgment were filed December 17 and duly served on Mr. Barrett.
Mr. Looper stated he learned of the motions for default judgment from the newspaper. He
dismissed Mr. Barrett sometime around Christmas and directed Mr. Barrett to forward the files in
these cases to Mr. Burgess. Mr. Barrett filed a motion to withdraw as counsel on January 20 and
participated in a telephone conference with the trial court on January 22 regarding that motion. Mr.
Barrett indicated he would contact Mr. Looper and offer to represent him at the hearing.
Mr. Looper hired his new counsel two days before the hearing, and she prepared and filed
numerous documents immediately before the hearing and represented Mr. Looper vigorously at the
hearing.
The record contains documents which mention other attorneys representing Mr. Looper in
various other matters during the pendency of this litigation and also contains Mr. Looper’s written
communication to courts and attorneys regarding those matters. He also communicated with State
officials and with his office staff in his role as Assessor.
We find nothing in this record to convince us that the trial court did not properly apply the
appropriate legal principles. On the contrary, the conduct attributed to Mr. Looper’s counsel does
not appear significantly different from attorney conduct in those cases holding that an attorney’s
neglect does not constitute excusable neglect. See, e.g., Barber & McMurry, 720 S.W.2d at 477;
Munday, 617 S.W.2d at 900; International Corporate Enter., Inc. v. Toshoku, Ltd., 71 F.R.D. 215
(N.D.Tex.1976).
Mr. Looper also claims that he acted expeditiously in view of his incarceration and that any
neglect on his part in hiring counsel or responding to the complaints was excusable. Considering
these claims, we still find no basis in the record for reversing the trial court’s finding that Mr.
Looper failed to demonstrate excusable neglect. This court has observed:
10
Since the trial judge subsequently recused himself, the suspension hearing was not held on
November 12 and was later reset for January 26.
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It has been declared that the mere negligence or inattention of a party is no ground
for vacating a judgment against him. Carelessness is not synonymous with excusable
neglect. Mere forgetfulness of a party to an action is not a sufficient ground for
vacating or setting aside a judgment by default. Parties are not justified in neglecting
their cases merely because of the stress or importance of their own private business
and such neglect is ordinarily not excusable. 46 Am.Jur.2d 874-75 Judgments § 718
(1969); Dudley v. Stiles, 142 Mont. 566, 386 P.2d 342 (1963).
Jimmy Whittington Lumber Co. v. Johnson Dev. Co., No. 01A01-9404-CH-00080, 1994 WL 499049
at *2 (Tenn. Ct. App. Sept. 13, 1994) (no Tenn. R. App. P. 11 application filed) (quoting Food Lion,
Inc. v. Washington Co. Beer Bd., 700 S.W.2d 893, 896 (Tenn.1985)).
The record shows that after learning the case was in default, Mr. Looper chose to discharge
his counsel, rather than to allow counsel the opportunity to protect his rights by filing a motion for
permission to file an untimely answer. Instead, Mr. Looper demanded that his counsel turn the file
over to another attorney who had not, in fact, been retained. During most of the month of January,
Mr. Looper failed to file an answer or other appropriate response and failed to retain counsel to act
for him.11 Mr. Looper was, during this time, communicating with various people about other
litigation. Mr. Looper’s affidavit fails to show that his incarceration prevented him from taking
action to protect his interests in this litigation. The record shows that Mr. Looper’s own choices, not
his incarceration, prevented him from participating in this action.
IV. Exclusion of the Offer of Proof
Mr. Looper maintains that the trial court committed reversible error by refusing to allow him
to make an offer of proof on the excusable neglect issue at the default judgment hearing. This issue
was waived by counsel’s failure to elicit a ruling on her request to admit the testimony of Mr.
Looper’s criminal counsel. See Nashville, Chattanooga & St. Louis Ry. v. Hayes, 117 Tenn. 680,
696, 99 S.W. 362, 366 (1907) (it is the movant's duty to ensure a ruling). Moreover, the error, if any,
was rendered harmless when the affidavit of Mr. Looper’s criminal counsel was admitted as an
exhibit to the motion to set aside default judgment. See Southern Bell Tel. & Tel. Co. v. Skaggs, 34
Tenn. Ct. App. 549, 241 S.W.2d 126, 134 (1951) (a showing of both harm and error is required for
reversal). Nothing in this affidavit establishes that the trial court abused its discretion when ruling
on the issue of excusable neglect.
V. Conclusion
Accordingly, the judgment of the trial court is affirmed. This case is remanded for
proceedings consistent with this opinion. Costs of this appeal are to be taxed to Mr. Looper, for
which execution may issue if necessary.
11
The fact that Mr. Looper attended law school for a number of years makes his failure to file
some kind of answer even less comprehensible.
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