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Orten v. Orten8/26/2005
March v. Levine, 115 S.W. 3d 892, 913 (Tenn. Ct. App. 2003). If there is any doubt about whether a default judgment should be set aside, the court should exercise its discretion in favor of granting relief to allow the case to be decided on its merits. Keck v. Nationwide Sys., 499 S.W. 2d 266, 267 (Tenn. Ct. App. 1973), Reynolds v. Battles, 108 S.W. 3d 249, 251 (Tenn. Ct. App. 2003), Tennessee State Bank v. Lay, 609 S.W. 2d 525, 527 (Tenn. Ct. App. 1980). Whether entry of a default should be set aside is a matter committed to the discretion of the trial court and involves consideration of these factors: (1) whether the default was the result of wilful conduct by the defaulting party; (2) whether the non- defaulting party would be prejudiced if the entry of default were set aside; and (3) whether the defaulting party has shown a meritorious defense. Tennessee Department of Human Services v. Barbee, at 866, Reynolds v. Battles, at 251. Judgment by default for failure to obey an order to provide discovery is an extreme sanction. March v. Levine, at 912.
After reviewing the record, I conclude that the evidence preponderates in favor of the conclusion that Mr. Orten's conduct was not willful; that Mr. Orten had a meritorious defense; and that setting aside the default judgment would not unduly prejudice Ms. Orten. Further, I conclude that the trial court abused its discretion in not setting aside the default judgment because it failed to consider the requisite factors which are the willfulness of the conduct, the effect of setting aside the default judgment on the non-defaulting party and whether the defaulting party had a meritorious defense. The record supports the conclusion that Ms. Orten would not have been prejudiced by proving her case on the merits rather than winning by default. The record supports the conclusion that these parties would have been better served with a trial on the merits rather than a default judgment at a trial management conference. For these reasons, I would reverse the decision of the trial court and remand for a trial on the merits.
SHARON G. LEE, JUDGE
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