Day on Torts
A Rule 60.02 motion to set aside the final judgment in a Tennessee wrongful death action was deemed untimely when filed almost twenty months after the order of dismissal.
In Hussey v. Woods, No. W2014-01235-SC-R11-CV (Tenn. Dec. 18, 2017), decedent and Ms. Harris had a long-term relationship but were never married, but Ms. Harris had a child during this time period in 2005. When sued for support by the Mississippi Department of Human Services, decedent “signed an agreement admitting that he was the natural father of the child[.]” In 2008, decedent “died after being detained and handcuffed by the manager of a Family Dollar store in Memphis.” Decedent’s mother, with whom he lived, contacted an attorney about filing a wrongful death suit. This first attorney met with both mother and Ms. Harris in December 2008, and Ms. Harris “signed an agreement retaining [the attorney] to represent Ms. Harris and [decedent’s] minor child in a wrongful death suit against the Family Dollar store.”
In July 2009, the first attorney sent a family representative a letter declining representation. In November 2009, decedent’s mother hired another firm and filed a wrongful death suit as next of kin. This suit settled in March 2010, and a consent order of dismissal with prejudice was entered. Ms. Harris was not told about this suit, but in December 2011 she filed a motion to set aside the judgment under Tennessee Rule of Civil Procedure 60.02 on behalf of the child, after having consulted with a legal aid attorney. In response to the motion, decedent’s mother argued that there were questions regarding the child’s paternity and that attempts to contact Ms. Harris had been unsuccessful.
The trial court eventually ruled that the motion to set aside the judgment was untimely, but the Court of Appeals vacated this decision, holding that “the Rule 60.02 motion was not ripe for adjudication until the trial court, not the probate court, conclusively established the child’s paternity.” The Supreme Court reinstated the trial court’s ruling, agreeing that the Rule 60.02 should be denied based on untimeliness.
First, the Court noted that the Court of Appeals incorrectly focused on the child’s paternity, stating that while paternity issues “may have been relevant at the outset of the litigation, …the wrongful death case has been settled and dismissed.” Based on the current status of the case, the relevant issue here was whether the child could overcome the order of dismissal.
“Rule 60.02 allows relief from a final order under limited circumstances.” There are five grounds for relief listed under Rule 60.02, two of which must be filed within one year of the entry of final judgment (including “(1) mistake, inadvertence, surprise, or excusable neglect,” and “(2) fraud…, misrepresentation, or other misconduct of an adverse party”). In this case, the Court first looked at whether the child was entitled to relief under 60.02(3), the ground that the judgment was void. “[A] judgment is void if it appears on the face of the record itself that the court lacked subject matter jurisdiction, the judgment was outside of the pleadings, or the court lacked jurisdiction over the parties.” (internal citation omitted).
On appeal, the child argued that the underlying judgment here was void because “he was not before the court when the case was dismissed, and therefore, the order should be set aside to avoid an injustice.” The child further stated that “no one had the authority to waive his interest and that his claim was not affected by any agreement, settlement, or order of dismissal executed by a third party.” The Supreme Court rejected these arguments, finding that “[t]he child failed to establish by clear and convincing evidence that the judgment was void.” The Court stated:
A judgment is not void…because it is or may have been erroneous. A judgment is not void because a party is dissatisfied with the result, or chose not to participate in the proceedings. A judgment is not void because a party claims it is unjust.
(internal citations and quotations omitted).
Next, the Supreme Court analyzed whether relief was appropriate under Rule 60.02(5), the catch-all provision of the rule. While the language of this subsection is “open-ended,” it is “subject to a narrow interpretation” and “affords relief in the most extreme, unique, exceptional, or extraordinary cases and generally applies only to circumstances other than those contemplated in sections (1) through (4) of Rule 60.02.” (internal citations omitted). Further, motions made pursuant to this ground “must be filed within a reasonable time.” “A motion under the catch-all provision of subsection (5) filed more than a year after final judgment is generally untimely unless extraordinary circumstances excuse the party’s failure to seek relief sooner.” (internal citation omitted).
Here, the child’s mother called the first attorney’s office twice in 2009 and received no reply, took no action in 2010, and waited until October 2011 to consult with a legal aid attorney. She never went to the first attorney’s office to check on the case or otherwise pursue it. Almost twenty months passed between entry of the final judgment and the motion to set it aside, and based on the facts present in this case, the Supreme Court ruled that the trial court did not abuse its discretion in finding the Rule 60.02 motion untimely. Moreover, the Court noted that the allegations within the motion were “more appropriately encompassed within the circumstances referenced in Rule 60.02(1) and (2),” and that the child could not get around the fact that those grounds were time-barred by simply filing under the catch-all provision.
The ruling of the trial court was accordingly reinstated, with child’s motion to set aside the final judgment denied.