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Smith v. Haley3/2/2001
competent medical evidence was filed by Plaintiffs in the interim. There is no proof in the record which would allow a conclusion that Plaintiffs have met their burden of showing that they were justified in failing to avoid the claimed surprise. We affirm the denial of Plaintiffs' motion pursuant to Rule 60.02(1).
We are further of the opinion that Rule 60.02(5) provides Plaintiffs no basis for relief. Despite its broad language, Rule 60.02(5) is construed narrowly. Federated Insurance Co. v. Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000); NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn. App. 1992). The standards of Rule 60.02(5) are even more demanding than those applicable to the other grounds for Rule 60.02 relief. NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Duncan v. Duncan, 789 S.W.2d 557, 564 (Tenn App. 1990)(citing Tenn. Dept. of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)). This Rule is not for the purpose of relieving a party of free, calculated and deliberate choices that have been made. Federated Insurance Co. v. Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000). A party remains under a duty to take legal steps to protect his or her own interests. NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Magnavox Co. of Tenn. v. Boles & Hite Constr. Co., 583 S.W.2d 611, 613 (Tenn. Ct. App. 1979). Rule 60.02(5) is intended to provide relief only in cases of overwhelming importance or in cases involving extraordinary circumstances or extreme hardship. Federated Insurance Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000). We find no such extraordinary circumstances or extreme hardship present in this case. Plaintiffs did not take necessary steps to protect their legal interests by furnishing the Trial Court with competent medical proof sufficient to defeat Defendant's summary judgment motion. Plaintiffs had more than ample time to provide this necessary proof. We affirm the denial of Plaintiffs' motion pursuant to Rule 60.02(5).
Conclusion
The judgment of the Trial Court is affirmed, and this matter is remanded for the collection of costs below. Costs of this appeal are taxed to the Appellants, Freddie Dean Smith and Anita Ann Smith, and their surety.
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