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Hanke v. Landon Smelcer Construction

Court of Appeals of Tennessee, Knoxville

May 19, 2015

LINDA HANKE
v.
LANDON SMELCER CONSTRUCTION

Session April 13, 2015

Appeal from the Circuit Court for Sevier County No. 13CV791III Hon. Rex H. Ogle, Judge

Linda Hanke, Gatlinburg, Tennessee, appellant. Pro Se. Kenneth M. Ward, Knoxville, Tennessee, for the appellee, Landon Smelcer Construction.

JOHN W. McClarty, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY and Thomas R. Frierson, II, JJ., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

On May 10, 2012, Linda Hanke ("Plaintiff) filed a civil warrant against Landon Smelcer Construction ("Defendanf) in the Sevier County General Sessions Court. Plaintiff requested judgment in the amount of $17, 500, alleging that Defendant's remodel of her residence was unsatisfactorily completed. Shortly thereafter. Plaintiff filed a letter titled "Notice to Withdraw Complaint." Upon receipt of the letter, the General Sessions Court dismissed the complaint with prejudice on June 13, 2012. Plaintiff was notified that her complaint had been dismissed when she arrived for her hearing date on June 18, 2012. Plaintiff was not informed that the complaint had been dismissed with prejudice, precluding any future attempt to re-file her complaint.

Approximately one year later, Plaintiff attempted to initiate settlement negotiations with Defendant's insurance liability carrier. In June 2013, Defendant's counsel notified Plaintiff by letter that her complaint had been dismissed with prejudice and could not be re-filed. On November 1, 2013, with the help of counsel, Plaintiff filed a motion in the General Sessions Court to set aside the judgment of dismissal pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Plaintiff later amended her motion to alternatively request the correction of the judgment pursuant to Rule 60.01 of the Tennessee Rules of Civil Procedure. Plaintiff argued that her motion to withdraw the complaint was merely a notice of voluntary non-suit, thereby entitling her to a dismissal without prejudice. The General Sessions Court denied the motion on December 11, 2013. Plaintiff timely appealed to the Sevier County Circuit Court and filed a motion to set aside the December 2013 judgment.

Following a hearing, the Circuit Court denied the motion and dismissed the appeal. The court found that Plaintiff was not entitled to relief pursuant to Rule 60.01 of the Tennessee Rules of Civil Procedure because the June 2012 judgment did not contain any apparent clerical errors. The court also found that Plaintiff was not entitled to relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure because Plaintiff failed to file a motion challenging or appealing the June 2012 judgment within 10 days. The court further found that even if Plaintiff were entitled to an extension in the time for filing, she failed to challenge or appeal the June 2012 judgment within 10 days of receiving actual notice that her complaint had been dismissed with prejudice. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal as follows:
A. Whether the Circuit Court erred in denying relief pursuant to Rule 60.01of the Tennessee Rules of Civil Procedure.
B. Whether the Circuit Court erred in denying relief pursuant to Rule 60.02of the Tennessee ...

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