Trice v. Moyers
| Decision Date | 30 January 1978 |
| Citation | 561 S.W.2d 153 |
| Parties | Helen Scales TRICE, Individually and d/b/a Scales Farms, Petitioner, v. A. C. MOYERS, Respondent. 561 S.W.2d 153 |
| Court | Tennessee Supreme Court |
William M. Leech, Jr., Leech, Hardin & Knolton, Columbia, for petitioner.
Jack B. Henry, Henry & Henry, Pulaski, for respondent.
In this case an unsuccessful plaintiff in a civil action has sought relief from the judgment of the trial court and has moved for a new trial upon the basis that he was deprived of effective appellate review without fault on his part. Relief is claimed under Rule 60.02, Tennessee Rules of Civil Procedure.
The action was instituted by respondent for an accounting for alleged partnership profits. Petitioner counterclaimed, seeking an accounting and reimbursement for losses sustained in a number of cattle purchases and sales in which the parties were involved.
Several depositions were taken, and the case was thereafter tried without a jury upon these depositions, oral testimony and numerous exhibits. The trial consumed two days, March 6 and 7, 1975, and the matter was taken under advisement by the Chancellor.
On January 16, 1976 the Chancellor filed a memorandum opinion, finding that neither party was entitled to recover from the other. Pursuant to the opinion, judgment was entered on February 21, 1976. Respondent filed a motion for a new trial which was overruled on April 6, 1976. An order reflecting that action and allowing respondent an appeal was entered on April 21. Respondent was allowed a total of ninety days within which to prepare and file a bill of exceptions.
Thereafter, on April 30, 1976, the present motion, seeking relief from the judgment and a new trial, was filed. It alleged that after the motion for new trial had been overruled, counsel for respondent contacted the court reporter who had been present at the trial and ordered from her a transcript of the evidence. The motion alleged that counsel was advised that during January, 1976 "she had erased all of those tapes since it had been some nine (9) months since the case was tried, and she assumed that no one was going to appeal and that the matter was closed."
The motion alleged that counsel for both parties were in agreement that "there is no way to prepare a narrative bill of exceptions in view of the complexity of the proof."
In support of this motion there was attached an affidavit, dated May 6, 1976, from the court reporter, which stated that she was "authorized to report lawsuits in the State of Tennessee." The affiant stated that she was the reporter in the instant case, but that no one had ordered a transcript of the testimony. Accordingly, "sometime in January 1976" after hearing nothing from either party with reference to having a transcription made, she "erased the tapes, since I felt that after such a length of time had expired, no one needed a transcript, or the case had been disposed of."
No further affidavits or testimony appear to have been taken in connection with the motion, nor was any response thereto filed, insofar as the record reveals. The Chancellor heard the motion, considered the affidavit and statement of counsel, and on June 23, 1976 entered an order overruling the motion for relief.
The text of the order recites that counsel for respondent had alleged that there was no way to prepare a narrative bill of exceptions, and that counsel for petitioner "has stated in open court that it would be virtually impossible to prepare a narrative bill of exceptions." The order recites that the case was, to a large extent, tried on the basis of many exhibits with testimony of the parties and witnesses being related to the exhibits. The trial court found as a fact "that an adequate and accurate narrative bill of exceptions would be virtually impossible."
From the denial of his motion, respondent appealed to the Court of Appeals. That Court reversed and ordered a new trial, finding that sufficient basis for relief under Rule 60.02 had been shown.
The Court of Appeals noted that counsel for the petitioner averred in his brief in three places that the Court reporter "employed standard shorthand and backup recording devices." The Court found no evidence of those facts in the record. After quoting the affidavit of the reporter, the Court of Appeals said:
"We assume that had there been shorthand notes taken at the trial a proper record could have been prepared and counsel and the court would not have agreed that the preparation of a record would be virtually impossible."
The record is silent as to whether shorthand notes existed from which a proper transcript could be prepared, although we note that nearly a month elapsed between the filing of the court reporter's affidavit and the hearing on the Rule 60 motion seemingly an ample time for either or both parties to have developed the facts on this point if either had desired to do so.
Except as provided in criminal and post-conviction cases, pursuant to T.C.A. §§ 40-2029 et seq., Tennessee had no system of official reporters in trial courts. Court reporters are engaged privately, at the expense of one or more of the parties, and are not officials of the trial court system. From the nature of their work, probably in legal theory most of them are independent contractors rather than direct employees of the litigants, although this may be a question of fact to be determined from proper evidence if the issue is contested.
The affidavit of the court reporter in the present case states that she was "authorized to report lawsuits in the State of Tennessee."
The meaning of this statement is unclear. The reporter may have meant that she was a member of a professional reporters' association, or perhaps that she had been designated in one or more of the trial courts to report criminal cases. There is no statement of her qualifications, and this court simply has no way of knowing whether she can or did take shorthand or other notes of the trial, in addition to the tape recordings.
The record is extremely meager, and the relief sought by the respondent is...
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Nagarajan v. Scheick, No. M2000-02323-COA-R3-CV (Tenn. App. 12/19/2003)
...314. The party seeking relief under Tenn. R. Civ. P. 60.02(2) has the burden of proving that it is entitled to relief. Trice v. Moyers, 561 S.W.2d 153, 156 (Tenn. 1978); Holt v. Holt, 751 S.W.2d 426, 428 (Tenn. Ct. App. 1988); FEDERAL PRACTICE AND PROCEDURE § 2860, at 312. To be entitled to......
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Duncan v. Duncan
...set the tainted judgment aside. The party seeking relief under Tenn.R.Civ.P. 60.02(2) has the burden of proof. Trice v. Moyers, 561 S.W.2d 153, 156 (Tenn.1978); Holt v. Holt, 751 S.W.2d 426, 428 (Tenn.Ct.App.1988). In order to succeed, the moving party must describe the basis for relief wit......
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Howard v. Howard
...upon a party who seeks relief under this rule: The party seeking relief under [rule] 60.02(2) has the burden of proof. Trice v. Moyers, 561 S.W.2d 153, 156 (Tenn.1978); Holt v. Holt, 751 S.W.2d 426, 428 (Tenn.Ct.App.1988). In order to succeed, the moving party must describe the basis for re......
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Reprise Capital Corp. v. Rogers Group, Inc.
...actions for relief to cases of "fraud upon the court" which does not appear from the evidence in this record. In Trice v. Moyers, Tenn.1978, 561 S.W.2d 153, the Supreme Court remanded a Rule 60.02 action for further hearing and There is no question in this state of the authority of a court ......