Session March 5, 2019
from the Chancery Court for Putnam County No. 2013-18 Ronald
appeal from the order of the Putnam County Chancery Court
denying their Rule 60.02(5) motion to vacate default
judgments against them. Because the trial court was correct
in denying Appellants' motion to vacate, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Hoeppner, Kingsport, Tennessee, for the appellant, Kristopher
Jane Patterson Lusk and Steven James Lusk, Cookeville,
Tennessee, Pro se.
Jeffrey G. Jones, Cookeville, Tennessee, for the appellee,
Express Signs of Cookeville, LLC.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Arnold B. Goldin, and Kenny Armstrong, JJ.,
STEVEN STAFFORD, JUDGE.
case originally arose as a contractual dispute over the terms
of a non-compete agreement entered into by Express Signs of
Cookeville, LLC ("Appellee"), Mary Jane Patterson
Lusk, and Steven James Lusk ("Mr. and Mrs. Lusk").
Appellee filed suit against Mr. and Mrs. Lusk in the Putnam
County Chancery Court ("trial court") on January
15, 2013, alleging that they were operating a business
similar to that of Appellee in violation of the non-compete
agreement. The complaint also named Mr. and Mrs. Lusk's
son, Kristopher Lusk (collectively, "Appellants" or
"the Lusks"), and alleged that Kristopher Lusk was
liable for maliciously interfering with the contract between
Mr. and Mrs. Lusk and Appellee. John Philip Parsons
("Mr. Parsons") was retained to represent
Appellants in the contract dispute with Appellee. Thereafter,
a lengthy series of discovery disputes ensued, during which
Appellee filed numerous motions to compel and for sanctions
against Appellants. As a result, the trial court eventually
entered a default judgment against Mr. and Mrs. Lusk for
$568, 807.78. Discovery disputes between Appellee and
Kristopher Lusk continued, and the trial court also entered a
default judgment against Kristopher Lusk on March 12, 2014.
This judgment was in the amount of $1, 706, 423.30, treble
the damages assessed against Mr. and Mrs. Lusk.
sought appellate review of the default judgments entered
against them;however, due to procedural errors made by
Mr. Parsons in filing those appeals, the appeals were
dismissed by this Court without any review on the
merits. Thereafter, Appellants hired attorney Josh
Hoeppner to replace Mr. Parsons, and Mr. Hoeppner entered a
notice of appearance for Appellants on June 6, 2016. Then, on
October 13, 2017, more than a year later, Appellants filed a
motion to vacate the default judgments against them pursuant
to Tennessee Rule of Civil Procedure 60.02(5). Therein,
Appellants asserted that the default judgments against them
were entered due to the gross negligence of their previous
attorney, Mr. Parsons, and that Mr. Parson's behavior in
handling the case was so extreme that relief under Rule
60.02(5) was warranted.
hearing on the motion to vacate was held on December 4, 2017;
thereafter, on March 2, 2018, the trial court entered an
order denying Appellants' Rule 60.02(5) motion on the
ground that Appellants were aware of Mr. Parson's
misconduct far before the motion to vacate was filed.
Specifically, the trial court found that
[Mr. and Mrs.] Lusk were aware of the problems surrounding
their legal counsel long before the ethics counsel complaint
and discipline. Further, the Court finds that they were on
notice of these issues at least at the time of trial, due to
comments made by Mr. and Mrs. Lusk at the trial which
consisted of complaints about their legal counsel's
representation. . . . As such, the Court finds that it is not
excusable neglect under Tenn. Rule Civ. P. 60.02 for [Mr. and
Mrs.] Lusk to wait as long as they have to raise this issue.
. . . The Court further finds Mr. Kristopher Lusk, while his
trial was at a later date, he was in Court with his parents,
and he knew that there were deficiencies in his legal