Deliberate But Erroneous Choices Do Not Constitute Excusable Neglect for a Motion for New Trial in Tennessee

What constitutes "excusable neglect" under Rule 59 of the Tennessee Rules of Civil Procedure?

Ms. Hayes, who goes by the stage name Shania Twang, entered into a written contract with Mr. Cunningham to perform in a musical show in Branson, Missouri. The show was to run a little over 5 months, and Shania Twang’s compensation was set at $1600.00 per week. However, after only one month, Mr. Cunningham canceled the show. Because she only received $3,066.00 in compensation, Ms. Twang sued Mr. Cunningham for breach of contract. Mr. Cunningham’s primary defense was he was not individually implicated in the contract as he was only an agent and the culpable party was SuperStars Live Concert, LLC. Following discovery and a pretrial conference, the case was set for trial.

Although there was no dispute that Mr. Cunningham was aware of the trial date, he chose not to attend. According to Mr. Cunningham, he did not appear because his counsel told him the case would turn on Missouri law and so his personal appearance was not absolutely necessary. However, Mr. Cunningham’s lawyer indicated his client did not appear at the trial because it conflicted with another show date and Mr. Cunningham had expressed he would be "ruined" if he missed the show. Given Mr. Cunningham’s position, the lawyer asked Mr. Cunningham to provide him evidence to support the defense. The evidence was never received and Mr. Cunningham quit returning his lawyer’s calls or emails. It should be noted that during the course of the case Mr. Cunningham and his lawyer had a tumultuous relationship resulting in multiple motions to withdraw. 

Perhaps not surprisingly, Mr. Cunningham lost at trial. Thereafter, he hired new counsel who filed a motion for new trial. After reviewing the record, the court of appeals found that Mr. Cunningham and his lawyer made deliberate decisions about how to proceed given the conflict between the trial date and the show date. Moreover, despite requests from counsel, Mr. Cunningham failed to produce any evidence that he was merely an agent during the contract negotiations. Thus, the court of appeals concluded Mr. Cunningham’s conduct in not attending the trial and in failing to provide exculpatory evidence to his lawyer was willful, and such a finding prevented the judgment from being set aside based on excusable neglect.

My only criticism of the opinion is it should have directed the appellants to that wonderful song by the real Shania –  "That Don’t Impress Me Much."  Other than the failure to take advantage of the opportunity to do so, Judge Andy Bennett and his colleagues did what they had to do under these unusual facts.

The case is Haynes v. Cunningham, M2012-02582-COA-R3-CV (Tenn. Ct. App.  Nov. 19, 2013).