IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 6, 2004 Session
JANICE DELONG v. THE VANDERBILT UNIVERSITY
Appeal from the Circuit Court for Davidson County
No. 01C-874 Thomas W. Brothers, Judge
No. M2002-02655-COA-R3-CV - Filed August 15, 2005
This appeal involves the collateral consequences of the dismissal of a wrongful death claim for
failure to prosecute. The mother of a student who fell to his death from a dormitory window filed
suit in both state and federal court against the university her son was attending. After the state
proceedings lay dormant for over one year, the Circuit Court for Davidson County dismissed the
complaint for failure to prosecute. Thereafter, the university moved to dismiss the federal suit on
the ground that the dismissal of the state suit was res judicata with regard to the federal claim. The
mother filed a Tenn. R. Civ. P. 60 motion in state court requesting modification of the dismissal
order to reflect that it was not an adjudication on the merits. The state court denied the mother’s
request for Tenn. R. Civ. P. 60 relief and also denied her request for permission to file a Tenn. R.
App. P. 9 appeal. The mother has appealed both decisions. We have determined that the trial court
erred by denying the mother’s Tenn. R. Civ. P. 60 motion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.
Daniel K. Evans, Lexington, Virginia, for the appellant, Janice DeLong.
Darrell G. Townsend and Neil M. McIntire, Nashville, Tennessee, for the appellee, The Vanderbilt
University.
OPINION
I.
Patrick “Kyle” Gullahorn enrolled at Vanderbilt University as a freshman in the fall of 1996.
He resided in Lupton Hall, a multi-story dormitory located in the Branscomb Quadrangle. On March
22, 1997, Mr. Gullahorn broke a window in a stairwell during an argument with his girlfriend and
then fell five stories to his death.
On March 19, 1998, Janice DeLong, Mr. Gullahorn’s mother, filed suit against Vanderbilt
University in the Circuit Court for Davidson County. Eventually, Ms. DeLong moved for a
voluntary dismissal, and the trial court dismissed her suit without prejudice on March 23, 2000.
Thereafter, on January 22, 2001, Ms. DeLong filed a similar action against Vanderbilt in the United
States District Court for the Middle District of Tennessee. Approximately two months later, on
March 21, 2001, Ms. DeLong re-filed in the Circuit Court for Davidson County, apparently because
of concerns that her federal suit would be dismissed for want of jurisdiction.
The federal suit was not dismissed, and in fact, proceeded steadily through discovery toward
trial. Because Ms. DeLong’s lawyers were concentrating on readying their federal case, they
completely ignored the pending state case. Vanderbilt was never served in the state case, and so it
never filed an answer. On April 10, 2002, the circuit court clerk notified Ms. DeLong’s attorneys
of record that the complaint would be dismissed in thirty days for failure to prosecute unless steps
were taken to comply with Local Rule 18.01.1 Despite this warning, Ms. DeLong’s lawyers took no
steps to move the state case along. Accordingly, on May 21, 2002, the trial court entered an order
dismissing the state case pursuant to Local Rule 18.02.2
The May 21, 2002 order dismissing Ms. DeLong’s second state complaint did not indicate
that the dismissal was not on the merits. As a result, Vanderbilt filed a motion on June 26, 2002 in
the pending federal proceeding seeking dismissal of Ms. DeLong’s federal complaint on the ground
of res judicata. On July 24, 2002, Ms. DeLong filed a Tenn. R. Civ. P. 60 motion in state court
seeking to vacate the order of dismissal or to modify it to reflect that the case was not adjudicated
on the merits. The trial court denied Ms. DeLong’s motion on September 27, 2002.
On October 25, 2002, Ms. DeLong’s lawyers filed a notice of appeal from the September 27,
2002 order. They also filed a Tenn. R. App. P. 9 application for an interlocutory appeal asserting
that the May 21, 2002 order was not final or appealable because it did not comply with Tenn. R. Civ.
P. 58’s requirements for a final order. The trial court determined that its May 21, 2002 order was
properly entered and, therefore, that it was final and appealable. Accordingly, on February 4, 2003,
the trial court denied Ms. DeLong’s application for a Tenn. R. App. P. 9 appeal. Ms. DeLong
thereafter filed a second notice of appeal from the trial court’s February 4, 2003 order.
1
Rule 18.01 of the Local Rules of Practice for the Circuit Court, Chancery Court, Criminal Court and Probate
Court of Davidson County (“Local Rule”) requires that “[a]ll civil cases must be concluded or an order setting the case
for trial obtained within twelve (12) months from the date of filing unless the court has directed a shorter or longer
period.”
2
Local Rule 18.02 states that “[t]o expedite cases, the court may take reasonable measures including dismissal
. . ..”
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Ms. DeLong asserts on this appeal that the May 21, 2002 order never became final because
it did not fully comply with Tenn. R. Civ. P. 58. She also insists that the trial court erred by failing
to grant her motion for Tenn. R. Civ. P. 60 relief from the May 21, 2002 order dismissing her
complaint. Vanderbilt responds that any technical shortcoming in the May 21, 2002 order was
harmless because one of Ms. DeLong’s attorneys of record received actual, timely notice of the
order’s entry and that the denial of Ms. DeLong’s Tenn. R. Civ. P. 60 relief was proper. We have
determined that the May 21, 2002 order substantially complied with Tenn. R. Civ. P. 58 and,
therefore, was a final order. However, we have also determined that the trial court should have
granted Ms. DeLong’s request for relief from the May 21, 2002 order pursuant to Tenn. R. Civ. P.
60.
II.
THE MAY 21, 2002 ORDER ’S COMPLIANCE WITH TENN . R. CIV . P. 58
We turn first to Ms. DeLong’s argument that the May 21, 2002 order of dismissal was not
a final, appealable order because the trial court clerk did not comply with Tenn. R. Civ. P. 58. Ms.
DeLong bases her argument on the fact that the order did not contain a certificate of service from the
trial court clerk specifically indicating that a copy had been served upon all parties or their attorneys.
Instead, the order contained the notation “cc” which is understood to mean that a copy of the
document has been provided to the persons subsequently identified. See Hicks v. Campbell, No.
M2001-00280-COA-R3-CV, 2003 WL 22438441, at *2 (Tenn. Ct. App. Oct. 28, 2003) (No Tenn.
R. App. P. 11 application filed).
Tenn. R. Civ. P. 58 requires that judgments or orders must contain one of the following
before they can become effective:
(1) the signatures of the judge and all parties or counsel, or
(2) the signatures of the judge and one party or counsel with a
certificate of counsel that a copy of the proposed order has been
served on all other parties or counsel, or
(3) the signature of the judge and a certificate of the clerk that a
copy has been served on all other parties or counsel.
Failure to adhere to these requirements prevents the judgment or order from becoming effective.
Mangrum v. Collazo-Torres, No. M2002-02277-COA-R3-CV, 2005 WL 273837, at *3 (Tenn. Ct.
App. Feb. 3, 2005) (No Tenn. R. App. P. 11 application filed); State v. Chapman, 922 S.W.2d 516,
518 (Tenn. Ct. App. 1995); Grantham v. Tennessee State Bd. of Equalization, 794 S.W.2d 751, 752
(Tenn. Ct. App. 1990). This Court has recognized that “[t]he purpose of this Rule is to insure that
a party is aware of the existence of a final, appealable judgment in a lawsuit in which he is
involved.” Masters v. Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App. 1992).
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Ms. DeLong insists that the “cc” located on the order does not sufficiently comply with Tenn.
R. Civ. P. 58. She argues that the “cc” merely expresses an intent to serve the requisite parties,
rather than an assurance that those parties have been served. Vanderbilt points out that the clerk of
the Circuit Court for Davidson County has been using the “cc” notation for several years and that
this notation has been approved by the Circuit Court judges as a method of certifying that copies of
the order are being sent to all parties and counsel of record.
We are unpersuaded by Ms. DeLong’s argument that the order of dismissal was not a final
order because of the informal “cc” notation. See State v. Taylor, No. E2001-01617-CCA-R3-CD,
2002 WL 15702, at *2-4 (Tenn. Crim. App. Jan. 8, 2002) (No Tenn. R. App. P. 11 application filed)
(holding that the “cc” notation complies with Tenn. R. Civ. P. 58). Admittedly, this order of
dismissal is not a textbook example of how clerk-issued orders of dismissal should be prepared.
Even so, the purpose of the requirements in Rule 58 is to provide litigants with timely notice of the
entry of final, appealable orders in their cases. Masters v. Rishton, 863 S.W.2d at 705.
It is undisputed that one of Ms. DeLong’s attorneys of record had actual notice of the May
21, 2002 order. Three lawyers from the Wolff Ardis firm in Memphis were listed as attorneys of
record on Ms. DeLong’s complaint and therefore included in the “cc” – Patrick Ardis, Daniel Evans,
and Anne Hamer. Although Ms. DeLong points out that the addresses for two of her attorneys
identified in the “cc” were incorrect,3 she admits that Mr. Ardis received notice of the pending
dismissal and eventually received the order of dismissal.
Ms. DeLong makes some argument that Mr. Ardis was not her actual attorney at the time of
the dismissal; however, the trial court was not notified of any changes in their attorney-client
relationship.4 Therefore, because Mr. Ardis remained Ms. DeLong’s attorney of record in the trial
court, Ms. DeLong was charged with the knowledge that her attorney possessed. See Moody v.
Moody, 681 S.W.2d 545, 546 (Tenn. 1984) (“[c]ounsel’s knowledge must be attributed to his client,
if the actions of the court are to have any efficacy.”). The May 21, 2002 order accomplished what
Tenn. R. Civ. P. 58 is intended to accomplish because it caused one of Ms. DeLong’s attorneys of
3
The addresses for these attorneys were incorrect because Mr. Evans had resigned from W olff Ardis effective
December 31, 2001 and Ms. Hamer had resigned from W olff Ardis effective January 31, 2002. Mr. Evans, however,
continued to represent Ms. DeLong after he resigned from the firm. Mr. Evans relied on employees of W olff Ardis to
forward pertinent information regarding Ms. DeLong’s case to him, which eventually resulted in a voluntary non-suit
of the state case inadvertently not being filed after the notice of pending dismissal was received. There is no evidence
that Mr. Evans made any effort to be designated as attorney-of-record for M s. DeLong in the state proceeding until after
her second complaint was dismissed on May 21, 2002.
4
Evidence revealed that Ms. DeLong ended her attorney-client relationship with Mr. Ardis and his firm in April
2002. The firm filed a motion to withdraw in the federal case, but did not notify the state court of a similar motion.
Furthermore, Mr. Evans failed to notify the trial court that he was the only counsel of record until July 24, 2002 when
he filed a notice of appearance.
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record to receive timely notice that her complaint had been dismissed. Consequently, the May 21,
2002 order was final and appealable.5
III.
THE DENIAL OF MS. DELONG ’S TENN . R. CIV . P. 60 MOTION
Ms. DeLong also argues that the trial court erred by denying her request for relief from the
May 21, 2002 judgment under Tenn. R. Civ. P. 60. Ignoring the inattention and sloppiness of the
lawyers who were representing her at the time, she insists that she was entitled to relief from the May
21, 2002 judgment because she had been diligently pursuing her claim in federal court and because
only one of her three attorneys of record received timely notice of the April 10, 2002 notice and the
May 21, 2002 order. We find little merit in these arguments. However, we have determined that
the trial court should have granted Ms. DeLong relief under Tenn. R. Civ. P. 60.02(5) because all
of the parties and the trial court knew that the May 21, 2002 order was not a judgment on the merits.
A.
Tenn. R. Civ. P. 60.02 provides an exceptional remedy that enables parties to obtain relief
from a final judgment. Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn. 1992); Hungerford v.
State, 149 S.W.3d 72, 76 (Tenn. Ct. App. 2003). The rule strikes a balance between the competing
principles of finality and justice, Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991);
Rogers v. Estate of Russell, 50 S.W.3d 441, 444 (Tenn. Ct. App. 2001), and provides “an escape
valve from possible inequity that might otherwise arise from the unrelenting imposition of the
principle of finality imbedded in our procedural rules.” Thompson v. Firemen’s Fund Ins. Co., 798
S.W.2d 235, 238 (Tenn. 1990). The burden of proof is on the party seeking Tenn. R. Civ. P. 60.02
relief. The bar for obtaining relief is set very high, and the burden borne by the moving party is
heavy. Johnson v. Johnson, 37 S.W.3d 892, 895 (Tenn. 2001).
Appellate courts defer to a trial court’s decision to grant or deny relief under Tenn. R. Civ.
P. 60.02. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003). Accordingly, they review these
decisions using an abuse of discretion standard. Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624
(Tenn. 2000); Beason v. Beason, 120 S.W.3d 833, 839 (Tenn. Ct. App. 2003). When using this
standard, a reviewing court will uphold a trial court’s ruling as long as reasonable minds could
disagree about its correctness, Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Beason v.
Beason, 120 S.W.3d at 839, and will set the ruling aside only if the trial court has applied an
incorrect legal standard or has reached a decision which is against logic and reasoning that causes
an injustice to the moving party. Henry v. Goins, 104 S.W.3d at 479; State ex rel. Russell v. West,
115 S.W.3d 886, 889-90 (Tenn. Ct. App. 2003).
5
Because Ms. DeLong filed a timely notice of appeal from the May 21, 2002 order, her appeal from the trial
court’s denial of her motion for Tenn. R. Civ. P. 60 relief is properly before us. Accordingly, we need not consider
whether the trial court properly denied Ms. DeLong’s Tenn. R. App. P. 9 application for permission to appeal.
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Tenn. R. Civ. P. 60.02(5) empowers the courts to grant post-judgment relief for “any other
reason justifying relief from the operation of the judgment.” Despite its broad language, the courts
construe Tenn. R. Civ. P. 60.02(5) narrowly. Federated Ins. Co. v. Lethcoe, 18 S.W.3d at 625;
Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). Accordingly, the bar for obtaining
relief under Tenn. R. Civ. P. 60.02(5) is even higher than the bar for obtaining relief under the other
grounds in Tenn. R. Civ. P. 60.02. Tennessee Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863,
866 (Tenn. 1985); Beason v. Beason, 120 S.W.3d at 840.
Relief under Tenn. R. Civ. P. 60.02(5) is not available to relieve parties from their free,
calculated, and deliberate choices. Underwood v. Zurich Ins. Co., 854 S.W.2d at 97; State ex rel.
Russell v. West, 115 S.W.3d at 890. Nor is it available to grant relief in circumstances in which one
of the other grounds for relief in Tenn. R. Civ. P. 60.02 is applicable. Holiday v. Shoney’s South,
Inc., 42 S.W.3d 90, 94 (Tenn. Ct. App. 2000); Duncan v. Duncan, 789 S.W.2d 557, 564 (Tenn. Ct.
App. 1990). Rather, Tenn. R. Civ. P. 60.02(5) is intended to provide relief only in the most
compelling, unique, exceptional, and extraordinary circumstances. Federated Ins. Co. v. Lethcoe,
18 S.W.3d at 625; Johnson v. Johnson, 37 S.W.3d at 895 n.2. As the Tennessee Supreme Court has
noted, the reasons for granting relief from a judgment under Tenn. R. Civ. P. 60.02(5) must be of
“overriding importance.” Banks v. Dement Constr. Co., 817 S.W.2d 1at 19.
B.
Ms. DeLong’s current predicament is the result of questionable tactics and multiple
inadvertences of her lawyers with regard to the state court proceeding. Without more, the conduct
of her lawyers would not provide grounds for relief under Tenn. R. Civ. P. 60.02(5). However, there
is more in this case that entitles Ms. DeLong to relief despite the conduct of her lawyers.
There is no question that the May 21, 2002 order dismissing Ms. DeLong’s state complaint
for failure to prosecute was not the result of a hearing on the merits of her complaint. The order has
the preclusive effect of a decision on the merits only because it did not recite that it was not an
adjudication on the merits. In this regard, Tenn. R. Civ. P. 41.02(3) provides:
Unless the court in its order for dismissal otherwise specifies,
a dismissal under this subdivision and any dismissal not provided for
in this Rule 41, other than a dismissal for lack of jurisdiction or for
improper venue or for lack of an indispensable party, operates as an
adjudication on the merits.
Had the trial court indicated in the May 21, 2002 order that is was not an adjudication on the merits,
Ms. DeLong would not be faced with the prospect of Vanderbilt using the order as a basis to seek
dismissal of her federal complaint on the grounds of res judicata.
Under the facts of this case, giving the May 21, 2002 order preclusive effect vindicates no
important state interest. Ms. DeLong was diligently pursuing her federal claim against Vanderbilt
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when the trial court dismissed her state claim for failure to prosecute. The trial court would most
likely have amended the May 21, 2002 order had Ms. DeLong’s lawyers filed a timely Tenn. R. Civ.
P. 59.04 motion. Granting Ms. DeLong relief under Tenn. R. Civ. P. 60.02(5) will not result in a
multiplicity of suits and will not burden the state courts with a stale claim. In fact, granting Ms.
DeLong Tenn. R. Civ. P. 60.02(5) relief is entirely consistent with the policy reflected in Tenn. R.
Civ. P. 1 that favors construing the procedural rules to enable parties to obtain decisions based on
the merits of their claims. Accordingly, because of the effect that the May 21, 2002 order could have
on Ms. DeLong’s federal complaint, we have determined that this case presents one of the rare,
compelling circumstances in which granting relief under Tenn. R. Civ. P. 60.02(5) is necessary to
prevent unwarranted hardship on a deserving party.
IV.
We reverse the order denying Ms. DeLong’s motion for Tenn. R. Civ. P. 60.02 relief and
remand the case to the trial court with directions to enter an order dismissing Ms. DeLong’s
complaint for failure to prosecute but specifically providing in accordance with Tenn. R. Civ. P.
41.02(3) that the order is not an adjudication on the merits. The costs of this appeal are taxed to
Janice DeLong and her surety for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., P.J., M.S.
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