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Holiday v. Shoney's South5/31/2000
This appeal arises from the trial court's denial of a motion filed by Plaintiff Beatrice Holiday to set aside a voluntary non-suit that Ms. Holiday had taken in a previous lawsuit against Defendant Shoney's South, Inc. ("Shoney's"). In support of the motion to set aside the non-suit, counsel for Ms. Holiday argued that the non-suit was taken in reliance on the trial court's assurance that he did not need to be concerned with a voluntary non-suit previously taken in the cause and that the previous non-suit would not "count against him." We affirm the order of the trial court denying Ms. Holiday's motion to set aside the non-suit.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and Remanded
Farmer, J., delivered the opinion of the court, in which Crawford, P.J., W.S., and Lillard, J., joined.
OPINION
Ms. Holiday allegedly sustained personal injuries when she fell at Shoney's in November of 1987. In January of 1988, Ms. Holiday filed an action against Shoney's in general sessions court but subsequently non- suited the action on January 11, 1989. Ms. Holiday re-filed the case in circuit court on January 8, 1990. In March of 1994, Ms. Holiday non- suited the circuit court action. On March 24, 1995, Ms. Holiday re- filed the case a second time in circuit court. In August of 1995, Shoney's filed a motion to dismiss, which was granted by the trial court. Ms. Holiday did not appeal the trial court's order granting the motion to dismiss. Instead, Ms. Holiday filed a motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure asking the court to set aside the voluntary non-suit that she had taken in March of 1994. In support of the motion, Ms. Holiday filed an affidavit in which Gerald Stanley Green, Ms. Holiday's attorney, testified that, before taking the March 1994 non-suit, Judge Wyeth Chandler advised him that he did not need to be concerned about the non-suit that he had previously taken in the general sessions action. Additionally, in opposition of the motion, Shoney's filed an affidavit executed by Betty Ann Milligan. In this affidavit, Ms. Milligan testified (1) that she served as counsel for Shoney's at the time that the March 1994 non-suit was taken, (2) that counsel for Ms. Holiday advised Judge Chandler that he was not ready for trial and that opposing counsel would not consent to an additional continuance, (3) that a discussion between counsel and Judge Chandler took place in the courtroom but that she does not recall whether Judge Chandler was aware of the non-suit that had been taken in the general sessions action, and (4) that she never consented to the taking of a second non-suit. After a hearing on the matter, Judge John McCarroll entered an order denying Ms. Holiday's motion to set aside the March 1994 non-suit. This appeal by Ms. Holiday followed.
The sole issue raised on appeal is whether the trial court erred in denying Ms. Holiday's Rule 60.02 motion to set aside the voluntary non- suit taken by Ms. Holiday in March of 1994. A Rule 60.02 motion for relief from a judgment is within the sound discretion of the trial court and the court's ruling on a Rule 60.02 motion may not be reversed on appeal unless it is determined that the court abused its discretion. See Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991); Toney v. Mueller Co., 810 S.W.2d 145, 147 (Tenn. 1991); Travis v. City of Murfreesboro, 686 S.W.2d 68, 70 (Tenn. 1985); Spruce v. Spruce, 2 S.W.3d 192, 194 (Tenn. Ct. App. 1998); Day v. Day, 931 S.W.2d 936, 939 (Tenn. Ct. App. 1996); Ellison v. Alley, 902 S.W.2d 415, 418 (Tenn. Ct. App. 1995).
Ms. Holiday
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