Judith A. Johnson, Surviving Widow of David C. Johnson, et al. v. Robert B. Richardson, d/b/a Richardson Landscaping & Trucking

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant/appellant has appealed the action of the trial court, which overruled his motion to set aside a default judgment under the provisions of Tenn. R. Civ. P., Rule 6. The standard of review is whether the trial court abused its discretion in denying the motion to set aside the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded JOHN K. BYERS, SR. J., in which ADOLPHO A. BIRCH and WILLIAM C. KOCH, JJ., joined. Debra A. Wall, Clarksville, Tennessee, attorney for appellant, Robert B. Richardson. Timothy K. Barnes, Clarksville, Tennessee, attorney for appellee, Judith A. Johnson, Kimberly Ann Mahoney and Sean Patrick Mahoney. MEMORANDUM OPINION Facts The plaintiffs brought this compensation suit to recover benefits under the Workers' Compensation Act as a result of an accident on July 22, 1994 in which her husband and the step- father of the two minor children was killed. The suit was filed on September 7, 1994. The defendant subsequently filed a motion for summary judgment. On December 3, 1994 the trial judge overruled the motion for summary judgment. There are no orders in the record before us from the date of the overruling of the summary judgment on December 3, 1994 until the entry of the default judgment which was entered on September 7, 21. The plaintiffs were awarded $167,832.. Subsequent to the order amending the motion for a summary judgment, the defendant filed a petition in the federal court declaring bankruptcy. This stayed the proceedings in the trial court. On August 1, 21, the defendant filed a motion to have a default judgment set aside which he averred was entered on May 25, 21. The motion further avers that on May 1, 21 the trial judge ordered the plaintiff to "place a document in the court file evidencing this matter had been removed from bankruptcy court" and the defendant further avers the plaintiff did not place said document in the file prior to May 25, 21, as directed by the trial judge. On the record before this court is a document designating notice as an order entered in the United States Bankruptcy Court granting relief from a stay of the proceedings in the Bankruptcy Court. This document recites that the relief from the automatic stay of this case was granted on October 2, 1998. Marked on the order was the notation "Received for Entry,"nunc pro tunc to 1/2/98." This appears to be placed there by the Bankruptcy Court. The order also shows a stamp which is "21 August 23 a.m. 9:32." This also appears to be an entry by the Bankruptcy Court. There is nothing in the record to show when this order was placed in the record in this case. There are no orders in the record memorializing any proceedings being held in the trial court on either May 1, 21 or May 25, 21. On September 7, 21 the trial judge entered a default judgment against the defendant in favor of the plaintiffs. The order recited that defendant was not present despite being duly notified of said court date. The order, approved by plaintiff's attorney for entry has a certification of service thereof on defendant's attorney which is undated. On September 19, 22, the plaintiff filed a "supplemental response to the motion to set aside the default judgment." (There is not another response to the motion to set aside the default judgment in the record.) On October 1, 21, the defendant filed another motion to have the default judgment set aside. This motions was accompanied by an affidavit from the defendant. Also on October 1, 21, the defendant filed a motion seeking to have the operation and effect of the default judgment suspended. On October 25, 22, the trial court entered an order denying the defendant's motion to set -2-