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Brookridge Apartments., Ltd. v. Universal Constructors, Inc. - Concurring
Citation: Not availableDocket: 01A01-9709-CV-00523
Court: Court of Appeals of Tennessee; August 5, 1998; Tennessee; State Appellate Court
Original Court Document: View Document
The case involves an appeal by Brookridge Apartments, Ltd. against Universal Constructors, Inc. and Badger-Bogle Architects, P.C., following the dismissal of the original action for lack of prosecution on July 23, 1996. The plaintiff sought to set aside the judgment under Tennessee Rule of Civil Procedure 60.02(1), claiming the dismissal was due to mistake, inadvertence, and excusable neglect, as their former counsel, William J. Hart, did not receive notice of the impending dismissal. The original action was initiated on August 20, 1990, and experienced delays, including a 1994 order requiring either a trial date or exemption from local rules. Hart filed for an exemption in November 1994, but the case remained inactive. Another attorney, George M. Allen, filed an additional motion for exemption in November 1995, which was not acted upon. The plaintiff's motion to substitute legal representation and to set aside the judgment was filed on July 18, 1997, accompanied by affidavits from both Hart and Allen, confirming Hart's lack of notice regarding the dismissal. The appellate court, presided over by Judge Herschel P. Franks, affirmed the trial court's decision, indicating that all motions and claims were appropriately addressed and that the dismissal stood. Plaintiff argues that the neglect of their former counsel constitutes "excusable neglect" as defined by the relevant Rule, citing Campbell v. Archer for support. While Archer allowed relief under Rule 59, the court emphasizes that Rule 60, which deals with final judgments, requires the party seeking relief to meet a heavy burden of proof. Generally, counsel's negligence is not considered excusable neglect, as established in several cases, including First National Bank of Polk County v. Gross and others. The Tennessee Supreme Court clarified that carelessness does not equate to excusable neglect. In this case, the plaintiff's attorney left the jurisdiction without arranging for substitute counsel, resulting in the case's dismissal. The court concludes that this neglect does not qualify as excusable and affirms that the Trial Judge did not abuse her discretion in refusing to reinstate the case. The court also finds other issues raised by the plaintiff to lack merit and remands the case to the Trial Court, with costs of the appeal assigned to the appellant.