Tennessee Rules of Civil Procedure-Solving the Motion to Reconsider Conundrum, The

I. INTRODUCTION

Do motions to reconsider even exist in Tennessee? Although the phrase itself is not found in the Tennessee Rules of Civil Procedure, the substance behind the phrase is undoubtedly recognized in Rules 54.02,1 59.04,2 and 60.02.3 These three rules, however, on their face, do not apply to the numerous other situations where an issuing trial court reconsiders and revises its previously entered order. As such, this note discusses the intended situations that Rules 54.02, 59.04, and 60.02 were created to address. Furthermore, in light of the apparent limited nature of these rules, this note addresses the other situations in which a court may reconsider its order despite the lack of a rule permitting reconsideration.

This note also responds to the somewhat confusing state of these motions in Tennessee legal practice. As an example of the precarious nature of these motions, the Tennessee Court of Appeals stated the following: "Regrettably, some lawyers continue to call their Tenn. R. Civ. P. 59.04 motions 'motions to reconsider' despite our repeated warnings of the confusion this practice causes."4 Accordingly, this note attempts to reconcile the Tennessee courts' apparent rejection of the motion to reconsider phraseology with the courts' continued acceptance of the substance behind these improperly-styled motions.

It is important to preface this discussion of motions to reconsider by noting that two legitimate, yet conflicting, interests surround these motions. On one hand, motions to reconsider should be allowed in the interest of justice and fairness. Ideally, in order to insure that justice is served, an order or judgment entered by a trial court should be based on all relevant evidence and applicable law. If it is brought to the court's attention that other relevant evidence should be considered or that the applicable law has changed, a court should be able to change its order or judgment in accordance with this new evidence or newly applicable law.

Competing with this ideal image of justice and fairness in the court system is judicial efficiency. Based on the court system's limited number of resources-most importantly, money and time-a court's decision must enjoy some characteristic of finality. The conclusiveness of a court's ruling encourages lawyers to either present all discoverable evidence and relevant law in a timely manner or suffer the consequences of a malpractice suit. Allowing an unlimited number of motions to reconsider undermines judicial efficiency and encourages lazy lawyering.

With the above-noted conflicting policies in mind, Part II of this note discusses the rules that apply to motions made after the trial court has disposed of all claims-post-trial motions to reconsider. Specifically, Rules 59.04 and 60.02 give a party only one chance to move the trial court, based on reasonable grounds, to reconsider its judgment.5 Generally, these two rules address very well-defined situations that arise after a judgment has been entered.

In contrast, motions to reconsider orders entered before a final judgment are much less clear and, as a consequence, more problematic. Part III addresses pre-judgment motions to reconsider. Specifically, the relatively amorphous parameters of the second part of Rule 54.02 are discussed. In addition, this note proposes the theory that specific authority in the Tennessee Rules of Civil Procedure, in addition to Rule 54.02, permits pre-judgment motions to reconsider. This note also posits the possibility that the trial court possesses some inherent authority to reconsider its previously entered orders. All of these aforementioned possibilities are considered in light of the previously noted conflicting policies surrounding motions to reconsider.

II. POST-TRIAL MOTIONS TO RECONSIDER

A. Rule 59.04 of the Tennessee Rules of Civil Procedure

One motion commonly referred to as a motion to reconsider is a motion to alter or amend a judgment that is made pursuant to Rules 59.01(6) and 59.04(7) of the Tennessee Rules of Civil Procedure. Motions made under Rule 59.04, as the substance of the rule implies, are proper only after entry of a final judgment.8 Accordingly, a motion to reconsider made under Rule 59.04 falls into the category of post-trial motions.

Indeed, language in Rule 59.01 states that motions to reconsider are not authorized.9 This part of the rule, however, does not state that all motions to reconsider are unauthorized. Instead, the rule explains that motions to reconsider the trial court's ruling on motions made pursuant to Rule 59.01 are not authorized.10 In other words, within the context of Rule 59.04, motions to reconsider a motion to alter or amend are not authorized.11

1. Substance Over Form

A seemingly common practice among lawyers is to call their motions to alter or amend under Rule 59.04 motions to reconsider. Just as Tennessee courts have held that no such thing as a motion to reconsider exists under the second part of Rule 54.02,12 they have similarly explained that no such thing as a motion to reconsider exists under Rule 59.04.13 Despite the misnomer, Tennessee courts look at the substance of the motion rather than the way it is titled.14 In fact, Rule 8.05(1) of the Tennessee Rules of Civil Procedure authorizes trial courts to overlook the styling of a motion and instead look at the substance that lies therein.15 Rule 8.05(1) states in pertinent part that "[n]o technical forms of pleading or motions are required."16 Accordingly, courts are vested with the cumbersome duty of reading between the lines of a lawyer's motion and determining what the lawyer really means, despite what the lawyer says he means.

2. Proper Grounds for Bringing a Motion to Alter or Amend a Judgment

Generally, the following instances are proper grounds for moving the court to alter or amend a judgment: "(1) when the controlling law changes before a judgment becomes final,[17] (2) when previously unavailable evidence becomes available,[18] or (3) when, for sui generis[19] reasons, a judgment should be amended to correct a clear error of law[20] or to prevent injustice."21 These proper grounds for a motion to alter or amend a judgment make clear that Rules 59.01 and 59.04 are rooted in equity,22 "derived from equity's practice of permitting petitions for rehearing."23 The availability of Rule 59.04 motions promotes the efficiency of the judicial system by saving litigants and courts time and money by abrogating the need to proceed with a costly and lengthy appeal.24 In turn, Rule 59.04 promotes equity and justice in the everyday world of litigation.25

In order to further the purpose behind Rule 59.04, the Tennessee courts are granted wide discretion to alter or amend a previous judgment.26 While the court may grant a motion to amend a judgment in the above-referenced circumstances,27 it should not grant a Rule 59.04 motion to allow a negligent lawyer to introduce new evidence and new legal theories after a court's initial ruling.28 Moreover, a court, upon being moved by one of the parties pursuant to Rule 59.04, should not allow that party to relitigate a matter that the court has already decided.29 Accordingly, Tennessee courts devised standards by which to determine whether a motion to alter or amend is proper.

3. Standard for Granting Motions Made Pursuant to Rule 59.04

Prior to the Tennessee Supreme Court's decision in Harris v. Chern,30 the predominate standards used by Tennessee trial courts to analyze a motion to alter or amend a judgment were those standards announced in Schaefer v. Larsen31 and Bradley v. McLeod.32 However, after the Harris court adopted the balancing standard for motions made pursuant to Rule 54.02, Tennessee courts began applying the same balancing test to Rule 59.04 motions.33 In fact, several Tennessee appellate court cases expressly adopted the balancing standard used by the Harris court in evaluating motions made pursuant to Rule 59.04.34

Despite the overwhelming adoption of the Harris standard in most opinions from the Tennessee appellate courts, some courts have held differently.35 For example, in Travelers Indemnity Co. v. Freeman, the trial court granted a summary judgment motion against Travelers Indemnity Company (Travelers).36 Travelers then filed a motion under Rule 59.04 to have the trial court alter or amend the judgment based on a new legal argument asserted by Travelers.37 Agreeing with the trial court, the Tennessee Court of Appeals stated that "[w]e cannot consider the provocative issue of the Alabama Wrongful Death Statute because the issue was raised, for the first time, after summary judgment was granted."38 Although not fully discussed, the court of appeals reviewed Travelers' motion based on the stringent standard recognized in Bradley v. McLeod.39 The court announced that "we have considered, at length, the impact of Harris v. Chern and conclude that the relevant holding of Bradley v. McLeod is not rejected."40

The recent Tennessee Supreme Court case, Stovall v. Clarke,41 apparently resolved the controversy. In Stovall, the court stated that "[w]hen additional evidence is presented in support of [a Rule 59.04] motion, the trial court should consider the factors applicable to a motion to revise a partial summary judgment pursuant to Rule 54.02."42 Thereby, the supreme court seemingly endorsed the application of the Harris standard to all motions made to alter or amend a judgment under Rule 59.04. The court, however, provided no analysis as to how a party would satisfy the requirements under Harris, and simply stated, "[W]e agree with the Court of Appeals' observation that the trial court properly considered the additional evidence."43 As such, only time will tell whether trial courts in their application of the Harris standard will either stringently or readily reconsider their judgments and orders, and whether the appellate courts agree with their interpretation of the Harris standard.

B. Rule 60.02 of the Tennessee Rules of Civil Procedure

1. Timing of a Rule 60.02 Motion

The other post-trial motion that is often styled as a motion to reconsider is a motion made pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure.44 In contrast to motions made pursuant to the second part of Rule 54.02(45) and Rule 59.04,46 Rule 60.02 motions, entitled Motions for Relief from Judgments or Orders, are properly made thirty days after a judgment is entered;47 that is, when the judgment has become final.48 As such, a Rule 60.02 motion is not as freely granted as a motion to alter or amend a judgment made pursuant to Rule 59.04 because a grant of a Rule 60.02 motion conflicts more with the judicial policy of judgment finality.49

In addition to a Rule 60.02 motion being improper within thirty days after a judgment is entered, it is also improper for the trial court to exercise its jurisdiction to review a motion for relief from a judgment or order when an appeal of the judgment is pending.50 Instead, a party who seeks relief from a judgment or order under Rule 60.02 while an appeal is pending should move the court of appeals to remand the case so that the trial court may review the motion.51 The Tennessee Supreme Court stated that "because the trial court will most likely be in a better position to quickly assess the merits of such a motion, leave should be freely granted by the appellate court if the motion is not frivolous on its face."52

2. Grounds for Filing a Rule 60.02 Motion

The grounds that properly form the basis for a motion for relief from judgment made under Rule 60.02 are essentially identical to those used for Rule 59.04 motions to alter or amend a judgment.53 Moreover, much like Rule 59.04, Rule 60.02 is designed to balance the sometimes competing interests of justice and finality.54 However, like Rules 54.02 and 59.04, Rule 60.02 is not a tool by which a party may relitigate a ruling with which he is unhappy.55 Accordingly, courts grant motions under Rule 60.02 only in exceptional or extraordinary circumstances.56 The high bar for granting Rule 60.02 motions provides a striking difference between Rule 59.04 and Rule 60.02 motions, in light of the comparably lenient discretion permitted with Rule 59.04 motions.57 This difference, as previously noted, is premised on the notion that Rule 60.02 motions are greater impediments to the judicial principle of finality than Rule 59.04 motions.58

3. Improper Motions to Reconsider

Sometimes a motion styled as a Rule 60.02 motion to reconsider will come in direct conflict with the previously noted prohibition against motions to reconsider a motion to alter or amend a judgment that is provided in Rule 59.01 of the Tennessee Rules of Civil Procedure.59

In these instances, the court will find that the Rule 60.02 motion is in fact a motion to reconsider a motion previously made under Rule 59.04.60 As discussed earlier, despite the styling of a motion, the court must look at the substance of the motion.61 The seminal case that discusses the impropriety of a motion disguised as a motion to reconsider a Rule 59.04 motion to alter or amend a judgment is Daugherty v. Lumbermen 's Underwriting Alliance.62

In Daugherty, subsequent to a bench trial, the trial court dismissed the plaintiff's suit for workers' compensation benefits.63 Thereafter, the plaintiff filed a motion with the trial court entitled "motion for new trial and/or in the alternative motion from relief for judgment and/or in the alternative motion to amend judgment" on the grounds that his attorney, through mistake, inadvertence, surprise or excusable neglect, failed to ask a critical witness appropriate questions.64 On December 30, 1988, the trial court entered a judgment effectively denying the plaintiffs Rule 59.04 motion.65 Afterwards, on January 3, 1989, the plaintiff filed a Rule 60.02 motion with the trial court alleging the same grounds as the previously denied motion.66 Despite the motion being based on the same grounds as the earlier motion, the court granted the plaintiff's Rule 60.02 motion.67 Subsequently, the plaintiff was provided a new trial and was awarded compensation.68

The defendant appealed the trial court's grant of the plaintiff's Rule 60.02 motion.69 Despite the plaintiff's attempt to disguise his motion to reconsider as a Rule 60.02 motion, the Tennessee Supreme Court looked at the substance of the motion and found that it constituted exactly what Rule 59.01 prohibits.70 The court cited Rule 59.01's strict prohibition against reconsideration of a previously decided Rule 59.04 motion to alter or amend a judgment.71 Accordingly, the court noted that the trial court's grant of the plaintiff's Rule 60.02 motion was contrary to the purpose behind this part of Rule 59.01 to bring finality to proceedings.72

C. Summary of Post-Trial Motions to Reconsider

Despite some Tennessee courts' insistence that the Tennessee Rules of Civil Procedure do not provide for the nomenclature motion to reconsider, the rules clearly allow parties to move the trial court to reconsider its previously entered judgments. Arguably, some of the apparent confusion related to post-trial motions to reconsider can be traced to the similar grounds that form the basis of these motions.73 The following hypotheticals, using newly discovered evidence as the grounds for the motions, will highlight the primary difference between Rules 59.04 and 60.02-timing.

In Hypothetical A, assume that an entire lawsuit has concluded, and the trial court has entered its judgment pursuant to Rule 58 of the Tennessee Rules of Civil Procedure.74 At this point, pursuant to Rule 59.04 a party may, within thirty days after the judgment's entry, move the trial court to reconsider its previous judgment on the ground that the plaintiff discovered new evidence.75 The trial court would apply the standard adopted in Harris.76 If the party's Rule 59.04 motion to alter or amend is denied, Rule 59.01 precludes the party from bringing a motion under Rule 60.02 to have the trial court reconsider its judgment based on newly discovered evidence.77 The reason that a court would not permit this motion is because the plaintiff's Rule 60.02 motion would be seen as a motion to reconsider a motion to alter or amend. This is expressly prohibited by Rule 59.01.78

In Hypothetical B, assume that a party does not file a motion to alter or amend under Rule 59.04, but instead, waits until thirty days have passed after the entry of a final judgment. At this point, the party may file a motion under Rule 60.02 based on newly discovered evidence.79 The party, however, would bear a much higher burden than under a Rule 59.04 motion because Rule 60.02 motions are only granted in extraordinary circumstances.80

As the hypotheticals indicate, a party has only one opportunity to move the trial court to reconsider its previously entered judgment based on the same ground. Rules 59.04 and 60.02, and the judicially created standards applicable to these rules, encourage attorneys to be diligent and thorough so that the court and the adverse parties will not waste their resources on a worthless initial judgment or order.

III. PRE-JUDGMENT MOTIONS TO RECONSIDER

A. Summary of the Problem

In contrast to post-trial motions to reconsider, pre-judgment motions to reconsider are an area of the law that is much less settled. As a result of the broader range of contested issues that the trial court must rule upon prior to the entry of its final judgment, it is logical to conclude that there may be many more contested court orders that a party feels will impact the outcome of the litigation rather than after a final judgment is entered. Also, the trial court must have more discretion at the pre-trial stage of litigation to reconsider its orders because the competing interests of justice and judicial economy are less likely to be infringed upon at this stage than at the post-trial stage of litigation. This argument is supported by considering the previous discussion of post-trial motions which reveals that the more time that elapses during litigation, the more unlikely a court is to reconsider and revise its previously entered order.81

Despite the greater likelihood and need for pre-judgment motions to reconsider, the Tennessee Rules of Civil Procedure provide little guidance for practicing attorneys who wish to file a pre-judgment motion. One particular rule that does address pre-judgment motions to reconsider is the second part of Rule 54.02.82 However, as will be discussed, this rule also serves as a catalyst for a number of unanswered issues.

B. Rule 54.02 of the Tennessee Rules of Civil Procedure

1. Scope and Purpose of the Rule

Rule 54.02 of the Tennessee Rules of Civil Procedure83 provides one avenue by which a trial court's interlocutory order may be reviewed by the issuing court prior to entry of a final judgment. Starting with the plain language of the rule, it applies if there are either multiple claims involved against a single party or multiple parties involved in a single lawsuit.84 The first part of the rule permits the trial court, through "an express determination that there is no just reason for delay," to declare that certain otherwise interlocutory orders are a final judgment, thereby granting the interested party a right to appeal regarding that particular order.85 In contrast, the second part of Rule 54.02 provides that absent an express determination that an interlocutory order is a final judgment, the trial court may revise its order at any time prior to the entry of a judgment86 disposing of the entire lawsuit.87

Arguably, the second part of Rule 54.02 of the Tennessee Rules of Civil Procedure is another section of the rules where the phrase motion to reconsider can appropriately be applied.88 In the absence of the trial court's express determination that its previous ruling is considered a final judgment,89 the court's ruling is referred to as an interlocutory order.90 In this instance, a party may attempt to have the order revised by either: (1) filing an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure91 and request that the court of appeals review the trial court's order, or (2) request that the trial court reconsider its ruling under the second part of Rule 54.02 of the Tennessee Rules of Civil Procedure.92 This note addresses only the latter of these two options.

The second part of Rule 54.02 serves both litigants and trial courts. As to litigants, the rule offers a "limited opportunity to readdress previously determined issues."93 In that same vein, trial courts are afforded "an opportunity to revisit and reverse their own decisions" up until the entry of a final judgment.94 While it is important to understand why the rule exists, a more important question concerns when the trial court may revise an interlocutory order under this rule.

2. One Clear Ground for which Reconsideration is Proper Under the Rule

To date, the Tennessee Supreme Court has ruled that only one very narrow ground for bringing a pre-judgment motion to reconsider exists under Rule 54.02. The seminal Tennessee case that supports this point is Harris v. Chern.95 The issue before the court in Harris was what standard should apply to a motion brought under the second part of Rule 54.02 on the ground that a party discovered new evidence after the entry of a summary judgment.96

The Tennessee Supreme Court first addressed the motion to reconsider standard by commenting that "the Tennessee Rules of Civil Procedure do not authorize motions 'to reconsider' a grant of summary judgment,"97 but instead the rules authorize "motions to revise."98 Concerning these motions to revise, at the time that Harris appeared before the supreme court, no Tennessee case law existed that provided a standard for granting or denying a motion made under the second part of Rule 54.02.99 In light of the non-existent standard at the time, the Harris court looked to the standards employed under the somewhat-similar Rule 59.04 of the Tennessee Rules of Civil Procedure100 for guidance.101

Ultimately, the Harris court rejected the application of the standards used by the intermediate appellate court102 in deciding motions to revise made under Rule 59.04. Instead, the supreme court opted to apply a non-exclusive balancing test utilized by some federal courts.104 In the eyes of the Tennessee Supreme Court, the balancing standard provides a way to serve the aims of both standards previously used by the Tennessee Court of Appeals.105 Specifically, the balancing standard addresses both the need to bring the litigation to an end as well as ensuring that the courts' decisions are based on all the facts, thereby ensuring a just outcome to the litigation.106

The Harris court announced the balancing standard as follows:

When additional evidence is submitted in support of a Rule 54.02 motion to revise a grant of summary judgment, a trial court should consider, when applicable: 1) the movant's efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant's case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor.107

With the adoption of this balancing test, the court noted that "[i]t permits our courts the discretion to dispose of those cases for which summary judgment is appropriate and to ensure that meritorious claims go to trial."108 Moreover, the court narrowed the application of the aforementioned balancing test to instances "when additional evidence is offered by a litigant to revise a grant of summary judgment pursuant to Rule 54.02."109 Accordingly, in instances where a motion is made to revise a judgment under Rule 54.02 on some ground other than newly discovered evidence, the Harris balancing standard may not apply.

3. Other Likely Grounds for Bringing a Motion Under Rule 54.02

a. After the Entry of a Partial Summary Judgment

With the exception of a party bringing a motion under Rule 54.02 based on newly discovered evidence after the entry of a partial summary judgment,110 it is unclear whether a party may request that the trial court reconsider its orders on any other basis. My research revealed no Tennessee case law that discussed a Rule 54.02 motion brought on any other ground other than newly discovered evidence. Despite the lack of case law, it seems reasonable to conclude that other grounds would be permissible for bringing a Rule 54.02 motion after the entry of a partial summary judgment.

This argument is based on the Tennessee Supreme Court's recognition that the post-trial motion under Rule 59.04(111) is similar to one under Rule 54.02.112 This being the case, it is a sound logical leap to conclude that the same grounds recognized for bringing a motion to reconsider under Rule 59.04 would be equally applicable to a Rule 54.02 motion. These grounds, which are mirrored in Rule 60.02,113 are as follows: "(1) when the controlling law changes before a judgment becomes final, (2) when previously unavailable evidence becomes available, or (3) when, for sui generis reasons, a judgment should be amended to correct a clear error of law114 or to prevent injustice."115 Therefore, following this logic, a party may bring a Rule 54.02 motion, not only based on newly discovered evidence, but also based upon other grounds such as a change in the controlling law.

The more interesting question centers on what standard the trial court should use to analyze a Rule 54.02 motion based on grounds other than newly discovered evidence. In Harris v. Chern, the Tennessee Supreme Court narrowed its holding to the appropriate standard to be used for a Rule 54.02 motion based on newly discovered evidence after the entry of a partial summary judgment.116 Therefore, depending on a party's particular objective, a party may argue, based on the lack of Tennessee authority, that either the stringent Bradley v. McLeod standard117 applies or the relatively relaxed Schaefer v. Larsen standard118 applies. However, based on the overwhelming adoption of the Harris balancing standard119 for Rule 59.04 motions, it seems likely that the trial court would apply this standard.120

b. Beyond Partial Summary Judgment

Another issue under Rule 54.02 is whether the authority granted by the rule is limited to instances when a partial summary judgment has been entered or one party has been dismissed. Again, much like the issue of whether other grounds exist for bringing a Rule 54.02 motion after the entry of a partial summary judgment,121 Tennessee law is devoid of any clear answer. Additionally, no other jurisdiction appears to have squarely addressed this issue.

The broad language used in the second part of Rule 54.02 is the catalyst for this issue. Specifically, the language provides:

[A]ny order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.122

This broad language begs the question: What would qualify as an order under this rule that could be revised by the trial court? For example, could a discovery order123 or an order granting a motion to dismiss for failure to state a claim124 qualify under the rule's broad language? As a practical matter, and in the interest of judicial efficiency, after the entry of a discovery order or an order granting a motion to dismiss for failure to state a claim, litigants and trial courts should have some authority to have these orders revised if, for instance, the controlling law has changed. In fact, all of the previously noted grounds for post-trial motions to reconsider125 could arguably arise in the pre-judgment context after orders of these types have been entered.

If these non-summary judgment orders are permitted to be brought before the trial court for reconsideration under Rule 54.02, what prevents a party from abusing the rule and filing a multitude of motions for reconsideration so that he may rehash the same argument that the judge has already ruled upon? As previously noted, Rule 54.02 is designed to offer litigants "limited opportunity to readdress previously determined issues,"126 and also to "afford trial courts an opportunity to revisit and reverse their own decisions" up until the entry of a final judgment.127 These allowances granted to the trial court and parties should, however, be limited in light of the two competing judicial interests-justice and efficiency.128 However, in the absence of Tennessee authority on this matter, lawyers are left to speculate, and are forced to draft and respond to motions to reconsider without guidance from definitive authority. Hence, a very common issue that arises in trial practice remains a conundrum.

One possible means to curb overburdening courts with motions to reconsider matters is the imposition of sanctions under Rule 11.03 of the Tennessee Rules of Civil Procedure.129 The rule is available for attorneys130 and the court131 to deter the filing of frivolous motions that waste the parties' and the court's time and money.132 Accordingly, sanctions may be one effective way to respond to a party who is abusing Rule 54.02 by filing a motion to reconsider based on an argument already ruled upon.

Sanctions under Rule 11, however, do not solve all problems with these precarious motions under Rule 54.02. The primary remaining concern is the standard to be applied to these motions. In other words, how will an attorney know whether he is filing a frivolous motion if he is not provided with a standard to judge whether his motion should be granted? While it seems reasonable to conclude that partial summary judgment motions to reconsider will be governed by either the standards presented in Harris v. Chern,133 Bradley v. McLeod,134 or Schaefer v. Larsen,135 it is difficult to gauge what standard should apply to motions to reconsider discovery orders or orders granting a motion to dismiss for failure to state a claim. As a result, the problem remains: What is to be made of these types of motions to reconsider?

C. Other Authority for Bringing Pre-Judgment Motions to Reconsider

Authority for reconsidering very specific pre-judgment orders can be expressly found in some of the rules of civil procedure. Perhaps the best example of such a rule is in the context of pretrial scheduling and conferencing under Rule 16 of the Tennessee Rules of Civil Procedure.136 Specifically, Rule 16.05 requires that an order be entered that recites the action taken during a pre-trial or scheduling conference.137 This order has a profound impact on the trial because it controls the subsequent course of the lawsuit.138 As a result, the parties may be bound to their legal theories of the claims and defenses and also the undisputed facts and issues involved in the lawsuit.139 The rule makes clear, however, that these orders may be modified by either a subsequent order or, in the case of a final pretrial conference order, by showing good cause for modification.140 Therefore, Rule 16.05 provides an example of how the rules specifically address the need for reconsideration of this type of pre-judgment order.

IV. CONCLUSION

While the Tennessee courts appear to reject the label motion to reconsider because of the confusion caused by its use, the courts, as well as the Tennessee Rules of Civil Procedure, do recognize the trial court's ability to reconsider and revise its previously entered judgments and orders. Therefore, lawyers should avoid styling a motion for reconsideration as motion to reconsider, but should instead follow the language used by the rules. In other words, a motion made under the second part of Rule 54.02 should be styled as a Motion to Revise;141 a Rule 59.04 motion should be termed a Motion to Alter or Amend a Judgment;142 and a Rule 60.02 motion should be styled as a Motion for Relief from a Judgment.143

With regard to post-trial motions to reconsider, authority for these motions can be found in Rules 59.04(144) and 60.02.145 Moreover, these rules are very similar because the grounds under which these motions may be brought are essentially identical.146 The primary difference in these rules is the time in which these motions may be brought.147 A party, however, may only bring one of these motions during the course of the lawsuit.148 As the standards for bringing the two motions differ, it is in the party's best interest to file a Rule 59.04 motion, the earlier of the two motions, because the standard used by the court to grant such a motion is not as stringent.149

In contrast to the relatively well-established rules governing post-trial motions for reconsideration, a party's authority for bringing pre-judgment motions for reconsideration is much more unsettled. While it is clear that under Rule 54.02, a party may bring a motion to reconsider the entry of a partial summary judgment based on newly discovered evidence,150 it is uncertain if any other grounds would support a motion made under Rule 54.02 after the entry of a partial summary judgment.151 Moreover, the question remains: Is Rule 54.02 limited only to reconsideration of motions made after the entry of a partial summary judgment?152

The broad language of Rule 54.02 states that ''any order . . . is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties."153 Based on this language, Rule 54.02 would also provide authority for revision of interlocutory orders other than partial summary judgments.154 If this is the case, "Pandora's box" is opened because it would allow an unlimited number of motions seeking revision of all types of interlocutory orders.155 As such, how does a trial court handle such motions, considering its need to balance the competing interests of justice and judicial efficiency?156 Without any judicial or legislative authority, one is left to speculate whether Rule 11 sanctions serve to deter rehashing the same arguments which have already been ruled upon.157

Beyond Rule 54.02, although the phrase motion to reconsider is not found, other rules do expressly provide for motions for reconsideration within very narrow contexts.158 Specifically, Rule 16.05 allows for modification of a final pretrial conference order upon a showing of good cause.159 Just as a pretrial conference order may warrant revision, a number of other interlocutory orders may also require revision; however, these orders do not have a specific rule that authorizes their revision.

In the interest of justice, if there is a clear error, a change in the law, new evidence, or other extraordinary circumstances, a trial judge and the parties cannot be bound by a faulty interlocutory order simply because it does not have its own rule permitting revision. This problem often becomes an issue; therefore, the question becomes how to deal with it in the course of everyday litigation. Although not expressly granted by the rules, does the court have inherent authority to cure defects with or without a motion by a party? There are no clear answers to these questions.

A possible solution to the precarious status of pre-judgment motions to reconsider would be to provide a blanket rule in the Tennessee Rules of Civil Procedure which covers all interlocutory orders not already provided for in the current rules. This blanket provision would provide that a motion for reconsideration of an interlocutory order may be made by a party, subject to the sanctions provided under Rule 11, based on an enumerated list of grounds. These grounds should mirror the ones permitted under Rules 59.04(160) and 60.02.161 The standard that trial courts would apply to reviewing these motions should be judicially created but guided by the standards that currently exist under Harris v. Chern,162 Bradley v. McLeod,163 or Schaefer v. Larsen.164 By having a new rule and a judicially created standard in force, much of the confusion surrounding pre-judgment motions to reconsider would be abrogated, while still balancing the competing interests of justice and judicial efficiency. Otherwise, it seems likely that the conundrum surrounding motions to reconsider will remain unsolved.

BRADLEY H. SMITH*

* Comments Editor, 2002-2003, The University of Memphis Law Review, J.D., 2003, University of Memphis, Cecil C. Humphreys School of Law; B.A., 1997, University of North Carolina at Chapel Hill. The author acknowledges and thanks June F. Entman, Professor of Law at the University of Memphis, for her time spent providing invaluable guidance, insight, and expertise in the writing of this note. The author would also like to thank his wife, Marnel J. Smith, for her patience, support, and understanding.

Copyright University of Memphis Spring 2004
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