Day on Torts
When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.
In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.
Twenty-eight days after the order was entered, plaintiffs filed a “Motion to Set Aside” pursuant to Tennessee Rule of Civil Procedure 59.04. Plaintiffs asserted that they were entitled to relief due to the excusable neglect of plaintiffs’ counsel, who stated that “he misplaced the motion and forgot to mark the hearing on his calendar.” The trial court denied the motion to set aside, and the Court of Appeals affirmed.
The Court noted that a court considering a motion to set aside a final judgment “must first determine whether the conduct precipitating the default was willful.” (internal citation omitted). If it was not willful, as was the case here, “then the court must consider whether the defaulting party has a meritorious defense and whether the non-defaulting party would be prejudiced by the granting of relief.” (internal citation omitted).
Here, plaintiffs’ motion failed to “address the meritorious-defense factor.” Plaintiffs’ motion referenced a motion to amend the complaint, which was never granted, and the Court found that this was not enough to satisfy plaintiffs’ burden. The Court stated:
[F]acts upon which Plaintiffs rely to establish a meritorious defense to the motion for summary judgment must be admissible at the trial but need not be in admissible form as presented in the motion… Plaintiffs’ unverified, proposed First Amended Complaint does not contain admissible evidence. Thus, Plaintiffs submitted no evidence to show a meritorious defense to Defendant’s motion for summary judgment.
Denial of the motion to set aside was accordingly affirmed.