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Evans v. Wintrow9/30/2005
ough both lawyers were counsel of record, the trial court clerk apparently addressed all notices and other correspondence to Mr. Long only.
For some unspecified period in late 1999 through August 2000, Mr. Long was "involved" in a medical malpractice case in Alabama that required him to be away from his office for extended periods of time. According to Mr. Long, he was unable to make arrangements with anyone else at Duzane, Kooperman & Mondelli to review his mail while he was gone. Accordingly, when the letter containing the notice of the impending dismissal for failure to prosecute arrived, Mr. Long did not attend to it because he was out of town, and Mr. Kooperman was not aware of it because the letter was not addressed to him.
Mr. Kooperman assumed that the trial court clerk would mail notices to him because he was also Ms. Evans's counsel of record. He also assumed that he would receive notices because he had requested Mr. Jernigan's lawyer to correspond directly with him because of Mr. Long's prolonged absences from the office, and Mr. Jernigan's lawyer had expressly agreed to "contact Mr. Kooperman concerning the case as opposed to addressing correspondence only to Mr. Long."
The Tennessee Supreme Court has decided that in cases of this sort, a lawyer's oversight or inattention may qualify as "excusable neglect" under Tenn. R. Civ. P. 60.02(1) as along as the conduct is not "willful." Henry v. Goins, 104 S.W.3d at 481 (directing the courts to consider "whether the default was willful"). While the court's adoption of the "willfulness" standard appears to have softened the plain language of Tenn. R. Civ. P. 60.02(1), we, as intermediate appellate judges, are obliged to follow the directives of the Tennessee Supreme Court, particularly after the "court has given definite expression to its views in a case after careful consideration." Holder v. Tenn. Judicial Selection Comm'n, 937 S.W.2d 877, 881 (Tenn. 1996).
A review of the record in light of the three Henry v. Goins factors militates against finding that the trial court improperly granted Tenn. R. Civ. P. 60.02(1) relief in this case. Insofar as the first factor is concerned, while it would be appropriate to characterize the conduct of Ms. Evans's lawyers as sloppy and careless, it would be inappropriate to characterize it as willful. With regard to the second factor, it is plain, based on the jury's verdict alone, that Ms. Evans has a meritorious complaint. Finally, Mr. Jernigan has not come forward with any explanation of specific prejudice, other than the prejudice of being required to defend himself in court. This sort of prejudice does not provide a basis for denying Tenn. R. Civ. P. 60.02(1) relief in cases of this sort. Henry v. Goins, 104 S.W.3d at 482.
IV. The Inconsistencies in the Jury's Verdict
Mr. Jernigan also takes issue with the inconsistencies in the jury's verdict reflected in its answers to several of the special interrogatories. Specifically, he insists that the jury failed to follow the instructions in the special interrogatories regarding the breach of contract claim and that the jury provided fatally inconsistent answers relating to the conversion claim. We agree that the jury failed to follow the instructions and provided inconsistent answers.
A. The Adequacy of the Special Interrogatories
We would do a disservice to the jury in this case if we did not begin with a comment regarding the special interrogatories that they were provided to guide their deliberations and to present their verdict. There is little doubt that the inconsistencies in the verdict were caused, not by the jurors' inattention or lack of diligence, but rather by
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