IN THE COURT OF APPEALS OF TENNESSEE
FILED
MABEL DONNELLY, ) C/A NO. 03A01-9610-CV-00323
) June 5, 1997
Plaintiff-Appellant, )
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
) APPEAL AS OF RIGHT FROM THE
v. ) CARTER COUNTY CIRCUIT COURT
)
)
)
)
ROBERT E. WALTER, M.D. and )
HERMITAGE NURSING HOME, )
) HONORABLE G. RICHARD JOHNSON,
Defendants-Appellees. ) CHANCELLOR, By Interchange
For Appellant For Appellee Walter
BOB McDANIEL GREEN CHARLES T. HERNDON, IV
Johnson City, Tennessee Herndon, Coleman, Brading & McKee
Johnson City, Tennessee
For Appellee Hermitage
Nursing Home
N.R. COLEMAN, JR.
DANIEL D. COUGHLIN
Milligan & Coleman
Greeneville, Tennessee
OPINION
AFFIRMED AND REMANDED Susano, J.
1
Plaintiff Mabel Donnelly (Donnelly) appealed the trial
court’s denial of her motion to reconsider a grant of summary
judgment to the defendants Dr. Robert E. Walter (Dr. Walter) and
Hermitage Nursing Home (Hermitage). She presents for our review
the question of whether the denial of her motion to reconsider
was an abuse of the trial court’s discretion. For their part,
the defendants contend that Donnelly’s appeal should be dismissed
because of her failure to serve a copy of the notice of appeal on
the clerk of this court. We affirm.
I
Donnelly filed suit on December 22, 1994, to recover
damages for personal injuries allegedly caused by the malpractice
of Dr. Walter and Hermitage. Hermitage filed a motion for
summary judgment, supported by the affidavit of one of its
nurses, Dorothy Holsclaw, who had attended Donnelly during the
latter’s stay at the nursing home. Dr. Walter also filed a
motion for summary judgment, which he supported with his personal
affidavit. Donnelly failed to submit any opposing affidavits or
other properly verified material in response to either motion.
II
Donnelly’s counsel received a notice from the
defendants’ counsel advising him that they would argue their
motions to the court on December 18, 1995. The hearing took
place as scheduled, but neither Donnelly nor her attorney
attended. In their absence, the trial court granted summary
2
judgment to both defendants. Two days later, Donnelly filed a
motion to reconsider, asking the trial court to reinstate her
case on the docket or, in the alternative, to allow her to take a
voluntary nonsuit. The trial court denied Donnelly’s motion,
finding that her counsel had received adequate notice of the
hearing. The court also noted that the plaintiff had neglected
to submit any material in opposition to the defendants’ motions.1
The court held that Donnelly had failed to demonstrate that she
was entitled to relief under Rule 60.02, Tenn.R.Civ.P., by reason
of mistake, inadvertence, surprise or excusable neglect.
III
We first address the argument of the defendants that
Donnelly’s failure to serve a copy of her notice of appeal on the
appellate court clerk in accordance with Rule 5(a), T.R.A.P,
warrants a dismissal of this appeal.
Since the defendants filed their briefs, this identical
issue has been addressed by the Supreme Court, in the case of
Cobb v. Beier, ___ S.W.2d ___, No. 03S01-9610-CV-00106 (Tenn.,
filed April 28, 1997, Drowota, J.)(for publication). In the Cobb
case, the Supreme Court found that to dismiss an appeal for this
reason alone would be to elevate form over substance, thereby
“imped[ing] the search for justice.” Id. The Supreme Court
stated that
1
The motions were heard a few days shy of a year after the complaint was
filed, and approximately two months after the last motion was filed.
3
all cases presently on appeal in which the
clerk of the appellate court was not timely
served a copy of the notice of appeal, should
not be dismissed for failure to comply with
Rule 5(a), T.R.A.P.
Id. (Emphasis in original). Relying on Cobb, we hold that the
defendants’ issue with respect to the notice of appeal is without
merit.
IV
Donnelly raises as her sole issue the question of
whether the trial court abused its discretion when it denied her
motion to reconsider the grant of summary judgment. Her counsel
admits that he received adequate notice of the hearing on the
summary judgment motions; he contends, however, that his failure
to appear at the hearing was “inadvertent and due to excusable
neglect.”2 Donnelly also argues that the trial court erroneously
viewed her motion to reconsider as a motion for relief under Rule
60.02, Tenn.R.Civ.P.; she contends that her motion should have
been treated either as a motion to set aside a default, as
addressed in Rule 55.02, Tenn.R.Civ.P., or as a motion to alter
or amend a judgment, in accordance with Rule 59.04, Tenn.R.Civ.P.
We believe, in this instance, that any such distinction
is immaterial. Regardless of the category to which the motion is
properly assigned, the question is the same: Did the trial court
abuse its discretion? It is clear that “[t]he setting aside of
2
Counsel states in his affidavit that he mistakenly went to the
courthouse in Johnson City. The hearing had been noticed for and was held in
Elizabethton.
4
[a] summary judgment... lies within the sound discretion of the
Trial Court.” Marr v. Montgomery Elevator Co., 922 S.W.2d 526,
528 (Tenn.App. 1995); see also Henson v. Diehl Machines, Inc.,
674 S.W.2d 307, 310 (Tenn.App. 1984)(“the setting aside of a
judgment addresses itself and lies within the sound discretion of
the court.”); Keck v. Nationwide Systems, Inc., 499 S.W.2d 266,
267 (Tenn.App. 1973). We do not find it necessary to determine
the proper rule authority for Donnelly’s motion.
The circumstances of this case do not demonstrate an
abuse of discretion. Assuming, solely for the purpose of
argument, that counsel’s failure to go to the correct courthouse
for the hearing was excusable, we cannot overlook the fact that
Donnelly failed to support his motion to reconsider with any
evidence making out a disputed material fact regarding the merits
of the lawsuit. There was absolutely no reason to set aside the
summary judgments in the absence of some indication that the
plaintiff had a response to the defendants’ properly supported
motions.
It is well-established that “a motion for summary
judgment goes directly to the merits of the litigation, and a
party faced with such a motion may neither ignore it nor treat it
lightly.” Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Fowler
v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978). The
facts of this case show that Donnelly utterly failed to satisfy
her burden to respond to the defendants’ properly supported
motions.
5
Donnelly relies on the case of Campbell v. Archer, 555
S.W.2d 110 (Tenn. 1977), for the proposition that a trial court
may grant relief from a judgment in this situation, if the
failure to appear is not willful. We find that Campbell is
distinguishable from the instant case. In Campbell, a party’s
new attorney arrived after the commencement of the proceedings
because he had not been notified of the trial date by his
client’s prior counsel. In its opinion, the Supreme Court
assigned most of the blame to the former counsel, rather than the
new attorney, who had not received any notice of the trial.
Campbell thus presents a different scenario from the instant
case, since Donnelly’s attorney had received sufficient notice of
the time and place of trial. Furthermore, the instant case
involves another distinguishing feature--the failure of Donnelly
to submit affidavits or other material identified in Rule 56.03,
Tenn.R.Civ.P., in opposition to the motions for summary judgment.
Campbell does not support Donnelly’s request for relief in this
case.
The judgment of the trial court is affirmed.
Costs on appeal are assessed to the appellant and her surety.
This case is remanded to the trial court for collection of costs
assessed there, pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
6
CONCUR:
_________________________
Houston M. Goddard, P.J.
_________________________
William H. Inman, Sr.J.
7