State ex rel. Jones v. Looper

• Decision Date: 07 April 2000
• Parties: STATE of Tennessee ex rel. Jeffrey G. JONES, et al. v. Byron LOOPER.
• Court: Tennessee Court of Appeals

Page 189

86 S.W.3d 189

STATE of Tennessee ex rel. Jeffrey G. JONES, et al. v. Byron LOOPER.

Court of Appeals of Tennessee, Middle Section, at Nashville.

April 7, 2000.

Permission to Appeal Denied by Supreme Court: Rule 11 Denied October 30, 2000.

COPYRIGHT MATERIAL OMITTED

Jeffrey G. Jones, David Day, and William D. Birdwell, Cookeville, Tennessee, for the appellees, State of Tennessee ex rel. Jeffrey G. Jones, et al.

Chantal M. Eldridge, Cookeville, Tennessee for the appellant, Byron Looper.

OPINION

COTTRELL, J., delivered the opinion of the court, in which KOCH, J., and CAIN, J., joined.

Byron Looper, the former Property Assessor of Putnam County, appeals the default judgment entered against him in ouster proceedings brought pursuant to Tenn.Code Ann. § 8-47-101, et seq. We affirm the judgment of the trial court.

Byron Looper, the former Property Assessor of Putnam County, appeals the default judgment entered against him in the underlying action, two consolidated ouster proceedings brought pursuant to Tenn. Code Ann. § 8-47-101, et seq. One of the ouster proceedings was filed by the Putnam County Attorney and the other action was filed upon the relation of ten named citizens ("the Relators"). See Tenn.Code Ann. § 8-47-110 (1993). For the following reasons, we affirm the judgment of the trial court.

On October 23, 1998, Mr. Looper was arrested and incarcerated on criminal charges of first degree murder and was denied bond after a hearing on November 23. That indictment is relevant to this appeal only because of the issues raised by the fact of his incarceration. However, Mr. Looper was already under indictment for offenses related to acts in office. In a March 1998 indictment, he had been charged with multiple counts of official misconduct.

The two ouster petitions at issue were filed on October 30. Both petitions essentially mirrored the specific factual allegations in the March 1998 indictment, alleging that Mr. Looper had knowingly and willfully committed misconduct in office, knowingly and willfully neglected to perform duties enjoined upon him, and had committed acts which constituted violations of penal statutes involving moral turpitude, all of which are grounds for ouster from office enumerated in Tenn.Code Ann. § 8-47-101. The allegations in support of these grounds include, among other things, (1) arbitrarily reassessing the property of an individual who refused to contribute to Mr. Looper's political campaign fund; (2) allowing certain parcels of land to remain unassessed; (3) removing from the tax roles a parcel of property with the intent to impede the owner's right to serve as a public official or run for public office in the county; (4) failing to deliver the property tax roles to the County Trustee in violation of Tenn.Code Ann. § 8-47-101; (5) erroneously classifying certain property under the Agricultural, Forest, and Open Space Land Act of 1997 to obtain a benefit; (6) diverting over ninety (90) hours of paid County employee time to his own use; (7) using County funds to procure a computer program for his personal use and benefit; and (8) using County resources to promote his political aspirations. Both petitions sought a judgment of ouster. Both petitions also alleged that Mr. Looper's incarceration prevented him from performing the duties of Property Assessor and requested the court to declare the office vacant pursuant to Tenn.Code Arm. §§ 8-48-101(4) and 8-48-106. In addition, both Petitioners filed applications for an order of suspension, pursuant to Tenn.Code Ann. § 8-47-116, seeking to suspend Mr. Looper from performing any of the duties of the office of property assessor pending final disposition of the lawsuits.

It is undisputed that the petitions were served on Mr. Looper on October 30, 1998, and November 5, 1998.¹ Attorney Lionel R. Barrett, Jr. filed a notice of appearance on Mr. Looper's behalf on November 10, 1998. However, no answers or other responses to the petitions were filed.

On December 17, 1998, both Petitioners filed motions for default judgment and/or for summary judgment.² In relevant part, these filings asserted that Mr. Looper's failure to timely file a response to their petitions within twenty (20) days of service, as required by Tenn.Code Ann. § 8-47-116, entitled Petitioners to a default judgment pursuant to Tenn. R. Civ. P. 55.01.

Notice dated December 17 was sent that a hearing on all the pending motions was set for January 26, 1999. Apparently around Christmas, Mr. Looper discharged Mr. Barrett, informing him that another attorney was handling the case and directing him to forward all files to the specifically named lawyer, Mr. Jerry Burgess. Mr. Barrett filed a motion to withdraw as counsel on January 20, 1999, and it is from the affidavit filed with that motion that we learn the time frame and circumstances of Mr. Barrett's discharge by Mr. Looper.³ Mr. Looper retained his present counsel two days before the hearing.

No response, pleading, or other document was filed by Mr. Looper in this matter until 8:50 a.m. on the day of the 9:00 a.m. January 26 hearing, when Mr. Looper, though counsel, filed, inter alia, answers to the petitions and responses in opposition to the motions for summary judgment. These documents were served on opposing counsel moments before and actually during the hearing.

The trial court proceeded with the hearing on the motions for default judgment. At the close of the hearing, the court observed:

This is a very simple procedure that you take in these matters. You get served and you answer and all you have to do is just say not guilty or I didn't do it. You don't have to file a big answer, but you have to file something. In this case, nothing was filed in twenty days and nothing was filed in thirty days and no excusable neglect has been proven to this court by any affidavit. This type of action is one that generally requires expedition, expeditious action. It's a very serious matter, a very severe matter. The court feels and finds in this case that there was ample time for an answer, a brief, small answer of any kind. And that to come up here on the last hour and file something is not permissible.

The trial court entered an order granting default judgment against Mr. Looper on the basis that he had been properly served with process and had failed to file an answer as required by law. The court specifically found that there was no evidence in the record concerning excusable neglect. Finally, the order granted the relief sought in the petitions, entry of a judgment of ouster.

On February 4, 1999, Mr. Looper filed a motion to set aside default judgment pursuant to Tenn. R. Civ. P. 55.02 and 60.02. He argued that the default judgment should be set aside because he had filed an answer prior to entry of the judgment and had a meritorious defense to the actions, in that he did not willfully commit any act of misconduct or neglect of office. He also claimed that his failure to file a timely answer was due to his former counsel's actions and his inability to obtain new counsel until shortly before the scheduled hearing. Mr. Looper also asserted that the default judgment deprived him of his property interest in his job without due process because there had been no proof of any grounds justifying his ouster.

After a hearing on March 3, 1999, the trial court denied the motion to set aside the default judgment and stated:

The situation still remains as I expressed in the earlier hearing that this is a very serious case which should be expedited. The statute provides for twenty days. No action was taken in twenty days. Sometime thereafter, Lawyer Barrett was fired. However, there was never a request for any extension of time within the twenty days or, matter of fact, forever.

The Court considered most all of these issues at the original hearing and the Court finds that there have been no new circumstances or reasons why the original ruling should not stand.

I. Standard of Review

Mr. Looper argues that the trial court erred in entering the default judgment against him and in refusing to set aside the default judgment. The decision to enter a default judgment is reviewed for abuse of discretion. See Patterson Rockwell Int'l, 665 S.W.2d 96, 100 (Tenn. 1984). Similarly, motions to set aside default judgments are addressed to the trial court's discretion. See Moore v. Palmer, 675 S.W.2d 192, 194 (Tenn.Ct.App.1984); Henson v. Diehl Machines, Inc., 674 S.W.2d 307, 310 (Tenn.Ct.App.1984). A trial court's denial of a motion to set aside a default judgment, like the decision to enter a judgment by default, will not be reversed absent an abuse of discretion. See Nelson v. Simpson, 826 S.W.2d 483, 485 (Tenn.Ct.App.1991); see also Patterson, 665 S.W.2d at 100-01. Thus, our role is to determine whether the trial court abused its discretion.

A party seeking to have a lower court's holding overturned on the basis of abuse of discretion undertakes a heavy burden. The abuse of discretion standard is intended to constrain appellate review and implies "less intense appellate review and, therefore, less likelihood of reversal." BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at * 2 (Tenn.Ct.App. July 13, 1988) (no Tenn. R.App. P. 11 application filed). As a general principle, an appellate court will not reverse a decision that lies within the discretion of the trial court unless it affirmatively appears that the lower court's decision was against logic or reasoning and caused injustice to the complaining party. See Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.1996). The fact that a decision is discretionary with a trial court necessarily implies that the trial court has a choice of alternatives among a range of acceptable ones; the reviewing court's job is to determine whether the trial court's decision is within the range of acceptable alternatives, given the applicable legal principles and the evidence in the case. See BIF, 1988...