Gilreath v. Peters

• Decision Date: 13 December 2011
• Docket Number: No. E2011-00917-COA-R3-CV,E2011-00917-COA-R3-CV
• Parties: THOMAS H. GILREATH, ET AL. v. DONALD G. PETERS, II
• Court: Tennessee Court of Appeals

THOMAS H. GILREATH, ET AL.

v.DONALD G. PETERS, II

No. E2011-00917-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

November 9, 2011

DECEMBER 13, 2011

Appeal from the Chancery Court for Hawkins County

No. 17234 Thomas R. Frierson, II, Chancellor

Thomas H. Gilreath and Carol L. Gilreath ("Plaintiffs") sued Donald G. Peters, II ("Defendant") with regard to a right-of-way. After a trial, the Trial Court entered its order on February 17, 2010 finding and holding, inter alia, that Defendant had interfered with Plaintiffs' use of the right-of-way, and that the right-of-way "should remain open and unobstructed ...." Defendant did not appeal this judgment. Plaintiffs later filed a motion for contempt. During a hearing on Plaintiffs' motion, Defendant made an oral motion seeking to set aside the February 17, 2010 order pursuant to Tenn. R. Civ. P. 60.02(5). After the hearing, the Trial Court entered its order denying Defendant's Rule 60.02(5) motion, and finding Defendant in contempt of the Trial Court's February 17, 2010 order. Defendant appeals to this Court raising issues regarding the denial of his Rule 60.02(5) motion, and the finding of contempt. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;

Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., and JOHN W. MCCLARTY, J.J., joined.

Allen J. Coup, Mount Carmel, Tennessee, for the appellant, Donald G. Peters, II.

Douglas T. Jenkins, Rogersville, Tennessee, for the appellees, Thomas H. Gilreath, and Carol L. Gilreath.

OPINION

Background

Plaintiffs and Defendant own adjoining parcels of real property in Hawkins County, Tennessee. Plaintiffs' deed grants them a 40 foot right-of-way across Defendant's property. In July of 2009, Plaintiffs sued Defendant alleging, in part, that Defendant had done excavation in the right-of-way, which interfered with Plaintiffs' use of the right-of-way. The case was tried without a jury, and Defendant appeared pro se.

After the trial, the Trial Court entered its order on February 17, 2010 finding and holding, inter alia, that the 40 foot wide right-of-way claimed by Plaintiffs existed, that Defendant had interfered with Plaintiffs' use of the right-of-way, and that the right-of-way "should remain open and unobstructed ...." This order was not appealed, and it became a final judgment.

In August of 2010, Plaintiffs filed a motion to enforce the February 17, 2010 order alleging, in part, that Defendant continued to interfere with Plaintiffs' use of the right-of-way. A hearing was held in September of 2010, but Defendant failed to appear. After the hearing, the Trial Court entered its order on November 15, 2010 finding and holding, inter alia, that Defendant was in contempt, and that Defendant was "restrained from interfering with the Plaintiffs' use, maintenance, including mowing, of the subject right-of-way and said right-of-way will remain open and unobstructed ...." The November 15, 2010 order further ordered Defendant to remove the gate he had erected in the right-of-way.

In December of 2010, Defendant filed a motion to vacate or for a new trial alleging, in part, that he never received actual notice of the September hearing. On February 22, 2011 the Trial Court entered an Agreed Order which states:

This matter came on to be heard on the 22nd day of February, 2011 upon Defendant's Motion to Vacate the Order entered in this cause on November 15, 2010 and for a New Trial, whereupon the parties announced their agreement and it appearing satisfactory to the Court:

IT IS THEREFORE ORDERED that this Court's November 15, 2010 Order is hereby set aside and vacated in its entirety and this matter set for a new hearing on the remaining issue of whether the subject right-of-way is an open right-of-way and contempt.

After entering the February 22, 2011 order vacating the November 15, 2010 order, the Trial Court held a new hearing on Plaintiffs' motion for contempt. Defendant moved orally to set aside the February 17, 2010 order pursuant to Tenn. R. Civ. P. 60.02(5).¹ The Trial Court heard argument on Defendant's oral motion, and also heard argument on Plaintiffs' motion for contempt. After the hearing, the Trial Court entered its order on March 29, 2011 finding and holding, inter alia:

1. That Defendant's Rule 60.02(5) Motion to set aside the February 17, 2010 Order is not well taken.

2. That the instrument granting the easement was an "open" easement.

3. That Defendant's conduct in erecting a gate upon the easement is in willful contempt of the Court's previous Order entered on February 17, 2010.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:

1. Defendant's oral motion pursuant to Tenn. R. Civ. Pro. 60.02(5) to set aside the Court's previous Order entered on February 17, 2010, on the ground that it is contrary to the evidence, is denied.

2. Plaintiffs' motion for contempt is granted and Defendant is enjoined from future interference with the Plaintiffs', their heirs and/or assignees [sic], use of the subject right-of-way.

3. Defendant is ordered to maintain the easement as an "open" easement and to remove the gate across the right-of-way.

Defendant appeals to this Court.

Discussion

Although not stated exactly as such, Defendant raises three issues on appeal: 1) whether the Trial Court erred in failing to grant Defendant relief from the February 17, 2010 order pursuant to Tenn. R. Civ. P. 60.02(5); 2) whether the February 17, 2010 order was res judicata on the issue of whether the right-of-way was to be open and unobstructed; and, 3) whether the Trial Court erred in finding Defendant in contempt of the February 17, 2010 order.

Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidenceis otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

We first consider whether the Trial Court erred in failing to grant Defendant relief from the February 17, 2010 order pursuant to Tenn. R. Civ. P. 60.02(5). As this Court stated in In re: Joeda J.:

The applicable standard for reviewing a trial court's grant or denial of a Tenn. R. Civ. P. 60.02 motion is set forth in Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003):

In reviewing a trial court's decision to grant or deny relief pursuant to Rule 60.02, we give great deference to the trial court. See Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). Consequently, we will not set aside the trial court's ruling unless the trial court has abused its discretion. See id. An abuse of discretion is found only when a trial court has "'applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining.'" State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). The abuse of discretion standard does not permit an appellate court to merely substitute its judgment for that of the trial court. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Henry v. Goins, 104 S.W.3d at 479. See also Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) ("Under the abuse of discretion standard, a trial court's ruling 'will be upheld so long as reasonable minds can disagree as to propriety of the decision made.'")(quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000)).

* * *

As this Court observed in Wilkerson v. PFC Global Group, Inc., No. E2003-00362-COA-R3-CV, 2003 WL 22415359 (Tenn. Ct. App. Oct. 23, 2003):

Under Rule 60 "the burden is on the movant to set forth, in a motion or petition and supporting affidavits, facts explaining why the movant was justified in failing to avoid the mistake, inadvertence, surprise or neglect." Tennessee Dep't of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)(quoting Tennessee State Bank v. Lay, 609 S.W.2d 525 (Tenn. Ct. App. 1980)). Rule 60.02 is not for use by a party merely because he is dissatisfied with the results of the case. Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991); NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). The principle of finality is firmly embedded in the procedural rules and, therefore, Rule 60.02 is an escape valve that should not be easily opened. Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991); NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). "[M]ere negligence or inattention of a party is no ground for vacating a judgment against him. Carelessness is not synonymous with excusable neglect." Food Lion, Inc. v. Washington County Beer Bd., 700 S.W.2d 893, 896 (Tenn. 1985)(quoting 46 Am. Jur. 2d Judgments § 718 (1969)); NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993).

Wilkerson, 2003 WL 22415359, at *6.

* * *

Next we consider whether [a party is] entitled to relief under Rule 60.02(5). We return to Wilkerson where we further stated:

Rule 60.02(5) authorizes relief from a judgment for "any other reason justifying relief from the operation of the judgment." Despite its broad language, Rule 60.02(5) is construed narrowly. Federated Insurance Co. v. Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000); NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn. Ct. App. 1992). The standards of Rule 60.02(5) are even more demanding than those applicable to the other grounds for Rule60.02 relief. NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Duncan v. Duncan, 789 S.W.2d 557, 564 (Tenn. Ct. App. 1990)(citing Tenn. Dept. of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn.

...