Setting aside a Tennessee default judgment: five days' notice, and only five grounds

Tennessee protects defendants at the front end more than most states, and at the back end rather less.

At the front: every default judgment goes before a judge, and the defendant gets five days' written notice whether or not they ever appeared in the case. There is no clerk-entered default in Tennessee.

At the back: Rule 60.02 lists five grounds, and newly discovered evidence is not one of them.

The first of those is where most winnable Tennessee default cases are actually won.

Notice, even to a defendant who never appeared

Tenn. R. Civ. P. 55.01:

Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, judgment by default may be entered as follows: The party entitled to a judgment by default shall apply to the court. Except for cases where service was properly made by publication, all parties against whom a default judgment is sought shall be served with a written notice of the application at least five days before the hearing on the application, regardless of whether the party has made an appearance in the action. A party served by publication is entitled to such notice only if that party has made an appearance in the action.

Three requirements, each of which is a place a judgment can fail:

Most states require notice only to a defendant who has appeared. Tennessee reverses the default: notice is owed unless service was by publication.

So the first question in any Tennessee default case is simple — was a written notice of the application served at least five days before the hearing? If not, the judgment did not comply with the rule, and that is a stronger argument than excusable neglect.

Note the qualifier on the exception: "properly made by publication." If the publication service was itself defective, the exception does not apply and the notice was owed.

The rule also protects two categories absolutely: "No judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein."

And where damages must be determined, the court "may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute."

The five grounds

Rule 55.02 sends you straight to Rule 60:

Setting Aside Default. For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02.

Rule 60.02:

On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment.

Compare this to the federal list and one ground is missing: newly discovered evidence. In Tennessee that belongs to a motion for a new trial under Rule 59, not to Rule 60.02.

Tennessee does keep the catch-all at (5), which is doing more work here than in a six-ground state.

One year — for two of them

The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken.

Only two grounds carry the one-year cap, because the missing newly-discovered-evidence ground would have been the third. Everything else runs on reasonable time.

A defendant who never got the five days' notice is usually arguing (3) — void or (5), and neither is capped at a year.

Tennessee will stay the judgment

This is where Tennessee is more generous than most:

A motion under this Rule 60.02 does not affect the finality of a judgment or suspend its operation, but the court may enter an order suspending the operation of the judgment upon such terms as to bond and notice as to it shall seem proper pending the hearing of such motion.

Most states stop at the first clause — the motion does not suspend the judgment, full stop, and any stay has to be found in some other rule. Tennessee writes the power into Rule 60.02 itself: the court may suspend the judgment pending the hearing, on terms as to bond and notice.

If a garnishment or levy is running, ask for that order in the same motion. It is available here without hunting for a separate rule.

Two routes outside the rule

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud upon the court. Writs of error coram nobis, bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

An independent action and relief for fraud upon the court both survive, and neither is subject to the one-year limit. Fraud upon the court is a different thing from ground (2)'s fraud by an adverse party.

Clerical mistakes have no deadline

Rule 60.01:

Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record, and errors therein arising from oversight or omissions, may be corrected by the court at any time on its own initiative or on motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

"At any time." If the problem is a wrong number or a misnamed party, this is the route.

What a default judgment cannot do

Rule 55.03 ends with a cross-reference: "In all cases a judgment by default is subject to the limitations of Rule 54.03." A default cannot award more, or something different in kind, than the complaint demanded — so compare the judgment against the pleading.

Rule 55.04 bars a default against the State of Tennessee or any officer or agency "unless the claimant establishes his or her claim or right to relief by evidence satisfactory to the court."

If you have not been defaulted yet

You have thirty days to answer, and a motion to dismiss must come before the answer — with four defenses that cannot be rescued by amendment afterwards. See the Tennessee motion to dismiss and responding to a Tennessee complaint.

How Tennessee compares

A short checklist

1. Check the notice first. Five days' written notice of the application was owed unless you were properly served by publication and never appeared.
2. Check that a judge, not a clerk, entered it. Tennessee has no clerk default route.
3. Count one year from entry if you are relying on mistake or fraud.
4. If you are past a year, look at (3), (4) and (5) — void, satisfied, or any other reason justifying relief.
5. Do not look for newly discovered evidence in Rule 60.02. That is a Rule 59 new-trial argument.
6. Ask for a stay in the same motion. Rule 60.02 lets the court suspend the judgment on bond and notice.
7. Compare the judgment to the complaint. Rule 54.03 limits what a default can award.
8. If a guardian was required, check one appeared. A default against an unrepresented minor or incompetent person is barred outright.

Where these rules live

• Tenn. R. Civ. P. 6 — Time
• Tenn. R. Civ. P. 55 — Default
• Tenn. R. Civ. P. 60 — Relief From Judgments or Orders

This page explains what the rules say. It isn't legal advice, and what amounts to excusable neglect or a reason justifying relief is developed in case law this site doesn't cover.