Wayne A. Howes v. Mark Swanner, M2016-01892-COA-R3-CV

In 2011 Howes homeowners hired Mark and Robin Swanner (Ultra Clean) to restore their fire-damaged house; disputes arose over workmanship, licensing, and invoices.
Howes sued the Swanners (and State Farm/agent); claims against the Swanners included breach of contract and fraud/negligent misrepresentation.
Howes moved for summary judgment (with expert affidavit establishing $53,296 damages) and included a notice of hearing for May 4, 2015; the Swanners did not respond or appear.
Trial court granted summary judgment for Howes on May 6, 2015 and entered judgment for $53,296.
Swanners filed a Tenn. R. Civ. P. 60.02 motion claiming they did not receive notice of the summary-judgment hearing; trial court held a hearing and denied Rule 60 relief.
On appeal, no trial transcripts or statement of the evidence were provided; appellate court therefore presumed trial-court factual findings correct and affirmed denial of Rule 60 relief.

Issue	Plaintiff's Argument (Howes)	Defendant's Argument (Swanner)	Held
1) Service/notice of summary-judgment hearing	Certificate of service is prima facie proof of mailing; notice was on the motion	Swanners say they never received notice of the hearing	Court found certificate of service unrebutted in practice, trial court credibility findings support that Swanners received notice; held against Swanners
2) Entitlement to Rule 60.02(1) relief for excusable neglect	Judgment should stand because service and hearing notice were proper; Rule 60 relief not warranted	Failure to appear was not willful because they did not receive notice, so relief should be granted	Applying Henry factors, court treated failure as not excusable neglect (not excused by Swanners’ testimony); denial of Rule 60 relief affirmed
3) Burden to show meritorious defense and prejudice	Howes relied on expert affidavit; prejudice would follow if relief granted	Swanners argued lack of notice but did not present evidence of a meritorious defense or absence of prejudice	Swanners failed to meet burden to show meritorious defense or lack of prejudice; supports denial of Rule 60 relief

Discover Bank v. Morgan, 363 S.W.3d 479 (Tenn. 2012) (Rule 60 abuse-of-discretion and application of three-factor test for vacating judgments)
Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003) (adopting three-factor test: willfulness, meritorious defense, prejudice)
Tennessee Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863 (Tenn. 1985) (liberality in reopening judgments that haven’t reached the merits)
Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498 (Tenn. Ct. App. 2000) (trial court credibility findings are entitled to great weight)