CIVIL PROCEDURE, CR 60.20 Motion: Goldsmith v. Fifth Third Bank (COA 10/30/2009)

Goldsmith v. Fifth Third Bank
2008-CA-001414 10/30/09 2009 WL 3486696

Opinion by Judge Wine; Judges Acree and Stumbo concurred.

The Court vacated and remanded an order of the circuit court granting appellant CR 60.02 relief and all orders of the court entered thereafter and remanded with instruction to the trial court to reinstate an in rem summary judgment and order of sale. The Court held that CR 60.02 relief should not have been granted as a matter of law in the case because appellant expressly waived his right to a guardian ad litem under CR 17.04. Further, CR 60.02 relief was inappropriate because the alleged errors could have been raised in a direct appeal. The Court finally held that the CR 60.20 motion was untimely and therefore, the trial court was without jurisdiction to grant it. The claim was one of “excusable neglect” rather than an extraordinary circumstance and therefore, the one-year time limitation found in CR 60.02(a), (b), and (c) was applicable. Although appellant also claimed to be proceeding under CR 60.02(d) and (e), he was unable to prove fraud on the part of appellee. Because the trial court erroneously invoked the post-judgment relief of CR 60.02, it had no jurisdiction to proceed and therefore, all order of the court following the order setting aside the original judgment and order of sale were void.

Civil Procedure – Lack of prosecution, dismissal, discovery: Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski (SC 10/29/2009)

Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski
2008-SC-000112-DG October 29, 2009
Opinion by Chief Justice Minton; all sitting.

Plaintiffs in a tort action appealed the trial court’s grant of defendant’s motion to dismiss for lack of prosecution (CR 41.02). The Court of Appeals remanded the case back to the trial court to reconsider the motion in light of the factors set forth in Ward (1: extent of party’s personal responsibility for the delay; 2: history of dilatoriness; 3: whether attorney’s conduct is willful or in bad faith; 4: merits of plaintiff’s claim; 5: lack of availability of alternative sanctions). On remand, the trial court again granted dismissal; the Court of Appeals affirmed.

The Supreme Court affirmed, holding that when considering motions to dismiss for lack of prosecution, trial courts must consider the totality of the circumstances, not just the factors listed in Ward, and must make an explicit finding of fact.

The Court declined to create a formula to be applied mechanically in all cases. Rather, the Court opted to fashion guidelines for trial courts based on Ward and others circumstances surrounding the case. The Court reviewed the Ward factors as they applied to this dispute, and considered the other relevant factors before affirming. Justice Venters concurred by separate opinion, contending that trial courts should also consider whether the party moving for dismissal has taken steps towards resolving the case prior to moving to dismiss— likening the situation to where criminal defendants must assert their right to a speedy trial before claiming it has been violated.

Civil Procedure – good cause to set aside default judgment: First Horizon Home Loan Corporation v. Barbanel (COA 7/2/2009)

First Horizon Home Loan Corporation v. Barbanel
2008-CA-000083 07/02/2009 2009 WL 1884397

Opinion by Judge Acree; Judge Nickell and Senior Judge Knopf concurred.
The Court affirmed an order of the circuit court denying appellants’ motion to set aside a default judgment. The Court held that the trial court did not abuse its discretion when it determined that appellants failed to demonstrate good cause, as required by CR 55.02 and set forth in CR 60.02, for their failure to answer appellee’s complaint. Appellants’ carelessness in their handling of the complaint, couched as good cause, was insufficient to explain why they failed to timely file their answers.