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Orten v. Orten8/26/2005
l Management Conference with opposing counsel at Husband's deposition just three days before the second conference on June 28, 2004. This conversation took place while Husband was in the "same room." Again, we note there is no question that Husband received a copy of the order scheduling the second Trial Management Conference.
After considering Husband's and Wilkinson's testimony, the Trial Court denied Husband's motion to alter or amend or for a new trial. The Trial Court acknowledged that default judgments are not favored under the law. However, the Trial Court also stated that notice to Husband of the second Trial Management Conference was "absolutely clear." According to the Trial Court:
[Husband's] nonappearance for Trial Management is very much of a piece with his earlier behavior in the case: obstructive; in some cases, defiant; delaying; not complying with discovery. And this nonappearance on Trial Management day, 6/28/04, would constitute a further act, if you will, of passive aggression. I'm just not going to be a part of it. I oppose it.
[Husband stated he] simply forgot, but Page 25 of Mr. Wilkinson's deposition shows the unlikelihood that ... [Husband's] account or suggestion is credible.
Husband appeals raising only two issues. First, Husband claims the Trial Court erred when it entered a default judgment against him based on his failure to appear at the Trial Management Conference. In the alternative, Husband argues the Trial Court erred when it failed to grant his motion to alter or amend or for a new trial.
Discussion
The factual findings of the Trial Court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted "under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts." Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
Tenn. R. Civ. P. 16.06 provides as follows:
16.06. Sanctions. - If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37.02. In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Tenn. R. Civ. P. 37.02 sets forth various types of orders that can be entered by a trial court in response to a party's failure to comply with certain orders. These include:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking
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