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Express Signs of Cookeville, LLC v. Lusk

Court of Appeals of Tennessee, Nashville

May 8, 2019

EXPRESS SIGNS OF COOKEVILLE, LLC
v.
MARY JANE PATTERSON LUSK ET AL.

          Session March 5, 2019

          Appeal from the Chancery Court for Putnam County No. 2013-18 Ronald Thurman, Chancellor.

         Defendants 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

          Josh Hoeppner, Kingsport, Tennessee, for the appellant, Kristopher M. Lusk.

          Mary Jane Patterson Lusk and Steven James Lusk, Cookeville, Tennessee, Pro se.

          Jeffrey G. Jones, Cookeville, Tennessee, for the appellee, Express Signs of Cookeville, LLC.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin, and Kenny Armstrong, JJ., joined.

          MEMORANDUM OPINION[1]

          J. STEVEN STAFFORD, JUDGE.

         Background

         This 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.[2] 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.

         Appellants sought appellate review of the default judgments entered against them;[3]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.[4] 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).[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.

         A 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 ...

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