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Fredonia Mountain Nature Homeowners Associations, Inc. v. Anderson

Court of Appeals of Tennessee, Nashville

January 19, 2017

FREDONIA MOUNTAIN NATURE HOMEOWNERS ASSOCIATIONS, INC.
v.
DAVID ANDERSON, ET AL.

          Assigned on Briefs December 2, 2016

         Appeal from the Chancery Court for Sequatchie County No. 2351 Jeffrey F. Stewart, Chancellor

         This is 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 affirm.

         Tenn. 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.

          Arnold B. Goldin, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         I. Background

         On June 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.

         After 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.

         On 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.

         II. ...


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