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Orten v. Orten8/26/2005
as to the conduct of the defaulting party. Tennessee State Bank v. Lay, 609 S.W.2d 525 (Tenn. Ct. App. 1980); Nelson v. Simpson, 826 S.W.2d 483 (Tenn. Ct. App. 1991). This rule must be balanced against the rule that the trial judge may be reversed on the imposition of sanctions only by an affirmative showing of an abuse of discretion. Brooks v. United Uniform Co., 682 S.W.2d 913 (Tenn. 1984).... Considering the conduct of Mr. March subsequent to the filing of the wrongful death action, the imposition of a default judgment is simply too drastic a sanction for his behavior. Throughout this entire proceeding, Perry March has not been the only transgressor. The Levines, in their zeal to sustain their position and to punish Perry March for what they sincerely believe to be the murder of their daughter, have contributed greatly to the problems in this case. This Court recognizes the patience and fortitude of the learned trial judge in trying his best to control this litigation, preserve the absentee estate, and maintain the integrity of his court in the face of nearly insurmountable challenges.
Id. at 913.
In Yearwood, Johnson, Stanton & Crabtree, Inc. v. Foxland Development Venture, 828 S.W.2d 412 (Tenn. Ct. App. 1991), we upheld a trial court's entry of a default judgment against the defendant pursuant to Rule 37.02. We stated:
The propriety of the judge's action depends, in part, on whether he was correct in granting the default in the first place. We think he was - on two separate grounds. First, Rule 37.02(C), Tenn. R. Civ. P., authorizes a trial judge to enter a default judgment for the defendant's failure to comply with discovery orders. Second, the defendants did not get new counsel within the time allowed and did not answer the plaintiff's amended complaint.
Id. at 413-14. See also Hodges v. Att'y General, 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000)("Trial courts possess inherent, common-law authority to control their dockets and the proceedings in their courts. Their authority is quite broad and includes the express authority to dismiss cases for failure to prosecute or to comply with the Tennessee Rules of Civil Procedure or the orders of the court.").
The foregoing makes clear that the Trial Court had discretion regarding if and how to sanction Husband for his improper conduct. We likewise review the Trial Court's denial of Husband's motion to alter or amend or for a new trial pursuant to an abuse of discretion standard. See Robinson v. Currey, 153 S.W.3d 32, 38 (Tenn. Ct. App. 2004) ("We review a trial court's denial of a Tenn. R. Civ. P. 59.04 motion to alter or amend a judgment for abuse of discretion.")(quoting Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn. Ct. App. 2003). After reviewing the entire record and giving credence to the Trial Court's factual findings, we are unable to conclude that the Trial Court abused its discretion when it entered a default judgment against Husband, or that it abused its discretion when it denied Husband's Rule 59 motion to alter or amend or for a new trial.
Conclusion
The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Court for collection of the costs below. Costs on appeal are assessed against the Appellant, Thaddeus Charles Orten, and his surety.
Sharon G. Lee, dissenting.
I respectfully dissent from the majority opinion. I would hold that the trial court erred in not setting aside the entry of the default judgment against Mr. Orten. In my judgment the evidence supports the conclusion that Mr. Orten did not intentionally fail to appear at the second Trial Management Conference, but simply forgot to appear. Entry of a
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