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Orten v. Orten8/26/2005
e on the Friday during depositions - it is more likely than not that he simply forgot to attend. Mr. Orten's testimony was corroborated by the testimony of his former lawyer whose credibility and veracity were not impeached. I am not persuaded that Mr. Orten knew about the conference because his lawyer and his wife's lawyer were discussing it in the same room prior to Mr. Orten's deposition. Mr. Orten is not a lawyer and this was his first deposition. Under those circumstances, Mr. Orten should not be credited with hearing and comprehending conversations to which he was not a direct participant. It is very unfortunate that Mr. Orten did not attend the conference, but it should not be fatal to the defense of his divorce action. The action of entering a default judgment was too drastic in this case. The trial court had other less severe options which included, but were not limited to, rescheduling the conference with wife's attorney's fees assessed to Mr. Orten or proceeding with the conference in Mr. Orten's absence. Had the trial court done so, the matter very likely would have proceeded to trial on the merits with both parties having their day in court on July 21, 2004 - less than a month later. It appears that the trial court, in denying the motion to set aside the default judgment, considered whether Mr. Orten had notice of the conference, whether Mr. Orten's failure to appear was willful, and Mr. Orten's failure to respond to discovery requests. It does not appear that the trial court considered whether setting aside the default would prejudice Ms. Orten and whether Mr. Orten had a meritorious defense.
Mr. Orten made a mistake when he refused to produce credit card records and bank statements as requested by wife's counsel. It is more likely than not that Mr. Orten did not have five years or even eighteen months of these records in his possession. Clearly he should have started the process of procuring these records or filed a motion seeking relief from the trial court if the request was too burdensome. Simply refusing to provide the records was not in compliance with the rules and certainly, was not a wise course of action for Mr. Orten. It should be noted that there was never a petition for contempt filed against Mr. Orten for not producing the records. By the end of the deposition, he did agree to produce the bank records and counsel agreed to schedule a time to continue the deposition of Mr. Orten. The deposition ended harmoniously. The evidence preponderates against the trial court's conclusion that Mr. Orten's conduct reached the level of "obstructive and defiant behavior throughout the case" as described by the trial court.
Tenn. Rule Civ. P. 55.02 provides that "for good cause shown the court may set aside a judgment by default in accordance with Rule 60.02." Tenn. Rule Civ. P. 60.02 provides that the court may relieve a party from a final judgment for several enumerated reasons including mistake, inadvertence, surprise or excusable neglect, or any other reason justifying a relief from the operation of the judgment. Tenn. Rule Civ. P. 60 is aimed at striking a balance between the competing interests of justice and finality. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 231 (Tenn. Ct. App. 2000). The interests of justice are best served when lawsuits are resolved on their merits after trial. Akers v. Bonifasi, 629 F. Supp. 1212 (M.D. Tenn. 1984). Tenn. Rule Civ. P. 60 is construed with liberality to afford relief from a default judgment. Tennessee Department of Human Services v. Barbee, 689 S.W.2d 863, 867 (Tenn. 1985). Default judgments should be set aside if reasonable doubt exists as to the conduct of the defaulting party. Nelson v. Simpson, 826 S.W. 2d 483, 485-486 (Tenn. Ct. App. 1991),
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