FREDONIA MOUNTAIN NATURE HOMEOWNERS ASSOCIATIONS, INC.
DAVID ANDERSON, ET AL.
Assigned on Briefs December 2, 2016
from the Chancery Court for Sequatchie County No. 2351
Jeffrey F. Stewart, Chancellor
an appeal from the denial of Appellant's Tennessee Rule
of Civil Procedure 60.02 motion for relief from judgment. On
August 17, 2015, the trial court entered an order allowing
Appellants' counsel to withdraw. The order also provided
Appellants thirty days to retain new counsel. Approximately
one week after the order was entered, the case came up on a
regularly scheduled docket call and was set for trial in
November 2015. Although notice of the trial setting was sent
to Appellants, they allege they never received it. The trial
was held in the absence of Appellants, and a judgment was
entered against them. Two months after the judgment was
entered, Appellants filed a motion for relief from judgment
pursuant to Rule 60 of the Tennessee Rules of Civil
Procedure. The trial court denied Appellants' motion
finding that there was no inadvertence, surprise or mistake
that would justify the relief sought. Discerning no error, we
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court is Affirmed and Remanded.
Christopher T. Varner, Chattanooga, Tennessee, for the
appellants, Arthur Wiard, and Helen Wiard.
Jennifer A. Mitchell, Dunlap, Tennessee, for the appellee,
Fredonia Mountain Nature Homeowners Association, Inc.
B. Goldin, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.
B. GOLDIN, JUDGE
26, 2012, the Fredonia Mountain Nature Homeowners
Association, Inc., ("FMNHA" or
"Appellee") filed a petition to enforce liens in
Sequatchie County Chancery Court against various individuals
who were owners of real property in Sequatchie County,
Tennessee. The liens the petition sought to enforce resulted
from unpaid homeowners' association dues. Arthur Wiard
and his wife Helen Wiard (together as "Appellants")
denied that there was any valid underlying debt owed by them
on which a lien could be properly asserted.
almost three years of litigation, the Wiards' attorney,
Christopher Varner, filed a motion to withdraw as counsel at
the request of the Wiards. The motion to withdraw was granted
by order entered on August 17, 2015. In the order granting
the motion to withdraw, the Wiards were granted thirty days
to retain new counsel. On August 25, 2015, during a regularly
scheduled docket call, the trial court set the Wiards'
case to be heard on November 10, 2015. A notice of hearing of
the November trial setting was filed and a copy mailed to the
Wiards on August 28, 2015. The Wiards allege they never
received the notice of the trial setting. The trial was held,
as scheduled, on November 10, 2015. The Wiard's did not
appear at the trial, and a judgment in the amount of $9,
766.88 plus court costs was subsequently entered against them
on December 7, 2015.
February 16, 2016, Mr. Varner recommenced his representation
of the Wiards and on their behalf, filed a motion for relief
from judgment pursuant to Rule 60.02 of the Tennessee Rules
of Civil Procedure. The Wiards' motion argued that the
thirty day window provided in the order on motion to withdraw
"presumably was to have been a period of
inactivity" and that the case was "inadvertently
set for trial on November 10, 2015, despite the existence of
the thirty day window of inactivity." The
Appellants' motion further alleges that they did not
learn of the trial and the judgment until after November 10,
2015. The Rule 60.02 motion was heard on March 29, 2016 and
denied by the trial court by order entered April 18, 2016.
The trial court specifically held that "there was no
inadvertence, surprise or mistake that would justify the
relief sought." The Wiards appeal.