Facts: Mother and Father are the divorced parents of three children.

Several years after their divorce, Mother petitioned to change the parenting plan and for civil contempt.

During the litigation, the trial court routinely resolved disputed motions without a hearing by filing a “Motion Hearing on the Pleadings Results Form” followed by an order.

The trial court justified this practice based on the Tennessee Supreme Court’s order regarding Covid-19 encouraging trial courts to use “telephone, teleconferencing, email, or videoconferencing, or other means that do not involve in-person contact” to conduct the court’s business.

One such “Results Form” required the parties to mediate by September 20. When Father did not do so, Mother moved for a default judgment, which the trial court granted. Like others before it, this motion was set to be heard “on the pleadings.” The certificate of service on the motion says Mother’s counsel sent it to Father’s counsel. Father claims he never received the motion.

Father moved for “emergency judicial status conference” to address the order granting a default judgment to Mother because Father’s counsel “is not aware of any motions and/or hearings to support” that order. Father’s counsel also submitted the affidavit of his legal assistant stating that Mother’s motion for default judgment was never received. A hearing request form was attached to the motion asking that the motion “be heard however the Court deems appropriate.”

The trial court denied Father’s motion, explaining that Father’s counsel “must give Covid-19 notice and set his motion for determination on the pleadings. If a hearing is deemed necessary by the court, the court will set a hearing.”

Father then moved to vacate the default judgment for lack of notice, asking that his motion be heard “via Zoom.” The trial court summarily denied Father’s motion without a hearing.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

Rule 16.06 and 37.02 of the Tennessee Rules of Civil Procedure allow a trial court to enter a default judgment as a sanction for a party’s failure to follow a court order. The sanction must relate to the abuse involved and must not be excessive. The punishment must fit the crime and must be visited upon the criminal. Such outcomes are considered drastic sanctions that are not favored because they contradict the goal of disposing of cases on the merits.

Rule 55.01 allows for the entry of a default judgment if procedural requirements are met, including that the party against whom a default judgment is sought is served with written notice of the request at least five days before the hearing. A default judgment is improper when the party was not given notice of the motion for default and the proposed date of the hearing on the motion.

A certificate of service on a motion is prima facie evidence that the motion was served as described, and it raises a rebuttable presumption that it was received by the person to whom it was sent. The burden is on the complaining party to show by clear and convincing evidence that they were not served. Rebuttal evidence of nonreceipt creates an issue of fact for the court to resolve.

The Court found error in the trial court’s failure to allow Father the opportunity to be heard in a meaningful way before the default judgment was granted:

To rebut the presumption raised by the certificate of service on Mother’s motion, Father’s counsel provided the affidavit of his legal assistant…. In our view, [the legal assistant’s] affidavit constituted rebuttal evidence of nonreceipt which created an issue of fact for the trial court to resolve. In addition, even assuming Father received proper notice of Mother’s motion for default judgment as a sanction, the motion was set to be heard “on the pleadings” per the [] notice included in the motion…. Tennessee Rule of Civil Procedure 55.01 contemplates a “hearing” when a default judgment as requested. It is undisputed that Father was denied a hearing prior to the courts entry of a default judgment against him, and he was also denied a hearing on his motion to vacate the order for default judgment. Tennessee Rule of Civil Procedure 55.02 allows a court to set aside a judgment by default in accordance with Rule 60.02. That the failure to allow a party to present proof to support his or her Rule 60.02 motion may be considered an abuse of discretion. We are sensitive to the fact that this case proceeded during the Covid-19 pandemic, a worldwide public health emergency that affected the way Tennessee courts conducted business; however, the Tennessee Supreme Court’s Order referenced in Mother’s notice encouraged courts to “continue and even increase the use of telephone, teleconferencing, email, videoconferencing, or other means” in order to keep courts accessible to litigants. These telephonic or virtual hearing options were not afforded to Father prior to the entry of default or upon his Rule 60.02 request to vacate the default.

Because Father provided his legal assistant’s affidavit as rebuttal evidence of nonreceipt of notice, this created an issue of fact for the court to resolve. Because Father was not afforded the opportunity to be heard in a meaningful way before the court granted the default judgment, the Court vacated its judgment and remanded the case for further proceedings.

K.O.’s Comment: This is the second post this week complaining about a Tennessee court’s approach to handling cases during Covid-19. Is this a sign of things to come?

Christy v. Christy (Tennessee Court of Appeals, Middle Section, March 30, 2022).

If you found this helpful, please share it using the buttons below.