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Holiday v. Shoney's South5/31/2000
of mistake that invokes the relief provided for under Rule 60.02(1). See Food Lion, Inc. v. Washington County Beer Bd., 700 S.W.2d 893, 896 (Tenn. 1985); Spruce, 2 S.W.3d at 195; Bivins v. Hospital Corp. of America, 910 S.W.2d 441, 446 (Tenn. Ct. App. 1995); Kilby v. Sivley, 745 S.W.2d 284, 287 (Tenn. Ct. App. 1987). Accordingly, the mistake of law in the case at bar does not entitle Ms. Holiday to relief under Rule 60.02(1). Likewise, the surprise experienced by Ms. Holiday in the case at bar was solely the result of this mistake of law and therefore is not the type of surprise for which relief from a judgment may be granted under Rule 60.02(1). Assuming, then, that Ms. Holiday's request for relief under Rule 60.02(1) was timely, we conclude that the trial court did not abuse its discretion in denying the requested relief.
We next address Ms. Holiday's request for relief pursuant to Rule 60.02(5), under which the trial court may relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment." T.R.C.P. 60.02(5). Rule 60.02(5) has been construed very narrowly by the Tennessee courts. See Underwood, 854 S.W.2d at 97; Tyler v. Tyler, 671 S.W.2d 492, 495 (Tenn. Ct. App. 1984). The purpose of Rule 60.02(5) is not to relieve a party from his or her free, calculated, and deliberate choices. See Underwood, 854 S.W.2d at 99; Banks, 817 S.W.2d at 19; Day, 931 S.W.2d at 939. Rather, Rule 60.02(5) affords relief in the most extreme, unique, exceptional, or extraordinary cases and generally applies only to circumstances other than those contemplated in sections (1) through (4) of Rule 60.02. See Underwood, 854 S.W.2d at 97; NCNB Nat'l Bank v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Duncan v. Duncan, 789 S.W.2d 557, 564 (Tenn. Ct. App. 1990). Thus, an untimely request under Rule 60.02(1) may not be asserted under Rule 60.02(5). See Wallace v. Aetna Life & Cas. Co., 666 S.W.2d 66, 67 (Tenn. 1984); Henderson v. Kirby, 944 S.W.2d 602, 605 (Tenn. Ct. App. 1996). Ms. Holiday argues on appeal that the facts of the case at bar are "unique, exceptional, and extraordinary." She fails to demonstrate, however, any way in which the facts underlying her request for relief under Rule 60.02(5) differ from the facts relied upon in support of her request for relief under Rule 60.02(1). As noted above, Ms. Holiday's request for relief under Rule 60.02(1) was untimely. Ms. Holiday may not assert this untimely request under Rule 60.02(5). We therefore conclude that the trial court did not abuse its discretion in denying the relief requested by Ms. Holiday under Rule 60.02(5).
Based on the foregoing, we affirm the trial court's order denying Ms. Holiday's request to set aside her March 1994 non-suit pursuant to Rule 60.02. The costs of this appeal are taxed to Ms. Holiday, for which execution may issue if necessary.
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