W. NEAL McBRAYER, Judge.
A judgment creditor moved to extend her judgment for an additional ten years under Tennessee Rule of Civil Procedure 69.04, and the trial court issued an order requiring the judgment debtor to show cause why the judgment should not be extended. Almost a year later, the judgment debtor filed a motion for relief from the judgment based upon an error in the certificate of service on the show cause order. In her response, the judgment creditor acknowledged that the address shown for the judgment debtor was incorrect but stated that, after the order was returned by the post office, it was mailed to the correct address. The judgment creditor also asserted that the motion for relief was premature because the court had not yet entered an order extending the judgment. The trial court entered an order extending the judgment for an additional ten years. We affirm.
On April 8, 2005, Trina Scott, as administrator of the estate of David Scott, obtained a judgment in the Circuit Court for Montgomery County, Tennessee, against Sharfyne L'Nell White for the wrongful death of David Scott.
The court issued the requested show cause order, which provided that Mr. White had "thirty (30) days from the date of mailing of this Order to show cause why the Judgment should not be renewed pursuant to Tennessee law." But the certificate of service on the show cause order contained an error. Specifically, the address for Mr. White reflected the city as Clinton, rather than Clifton, Tennessee.
The post office returned the mailing addressed to Clinton. So, on December 19, 2014, counsel for Mrs. Scott mailed the order to Mr. White's correct address.
Eight months later, Mr. White, acting pro se, filed a motion for relief from the order renewing the judgment under Tennessee Rule of Civil Procedure 60.02(2). As grounds, Mr. White asserted that the certificate of service fraudulently represented that the show cause order was mailed on September 19 when in fact the order had been mailed on December 19. According to Mr. White, this delay prevented him from filing a response. Mr. White asked the court to "rescind" the order renewing the judgment and grant him additional time to "show cause."
In her response, Mrs. Scott acknowledged the error in the certificate of service but claimed that Mr. White was not prejudiced because the court had not yet entered an order renewing the judgment. Because more than thirty days had elapsed since the date Mr. White acknowledged that the show cause order had been mailed to the correct address, Mrs. Scott requested that the court immediately enter an order renewing the judgment.
Mr. White countered that the incorrect date on the certificate of service on the show cause order led him to believe that the deadline for a response had already elapsed. He also continued to assert that the order renewing the judgment was void for improper service.
The trial court issued a final order on October 9, 2015. The court found that Mr. White had thirty days from the date the show cause order was mailed to the correct address within which to object to extension of the judgment. Mr. White did not respond until August 28, 2015, over seven months after the deadline. The court noted that, even then, Mr. White failed to dispute the underlying judgment. The court denied Mr. White's Rule 60.02 motion because, when the motion was filed, there was no judgment to set aside.
A. EXTENSION OF JUDGMENTS
As we understand it,
The procedure for extending a judgment is set forth in Tennessee Rule of Civil Procedure 69.04. At the time Mrs. Scott requested the extension of the judgment, the rule provided as follows:
Tenn. R. Civ. P. 69.04. Mrs. Scott filed the motion to renew within ten years from entry of the original judgment. According to Rule 69.04, Mr. White was required to respond within "thirty days of mailing," or the court would automatically grant the motion. See Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) ("When "shall" is used in a statute or rule, the requirement is mandatory."); see also Tenn. R. Civ. P. 69.04 Advisory Comm. cmt. to 2016 revision (explaining that "if the judgment debtor files no response to the motion in 30 days[,] the extension shall be automatically granted").
The mailing of a copy of the show cause order serves to provide the judgment debtor with an opportunity to show "why the judgment should not be extended for an additional ten years." Tenn. R. Civ. P. 69.04. Here, Mr. White did not receive the requisite notice until the order was mailed to the correct address on December 19. Although Mr. White had until January 21, 2015, to object to an extension, he took no action until August 28, 2015, over seven months after the deadline. See Tenn. R. Civ. P. 6.05 (providing an additional three days to take a prescribed action after service by mail).
Mr. White's mistaken belief that the time limit had already expired does not excuse his noncompliance with Rule 69.04. He received notice of the motion to renew, had an adequate opportunity to object, but failed to timely do so. The plain language of Rule 69.04 entitled Mrs. Scott to an extension of the judgment based upon the untimely response.
Mr. White also contends that the order extending the judgment was ineffective because it was issued after the expiration of the original ten-year period. We disagree. For purposes of Rule 69.04, the proper focus is on the timing of the motion to extend, not the court's order extending the judgment. As long as a motion to extend is filed "[w]ithin ten years from entry of a judgment," as is the case here, a judgment creditor may "avoid having the judgment become unenforceable by operation of [Tennessee Code Annotated § 28-3-110(a)(2)]." Tenn. R. Civ. P. 69.04 Advisory Comm. cmt. to 2016 revision; see also In re Hunt, 323 B.R. 665, 669 (Bankr. W.D. Tenn. 2005) ("[I]t is not essential that the debtor receive these pleadings within the ten-year period, only that the renewal pleading be filed within that time."). The rule does not require the order extending the judgment for the additional ten-year period to be entered within ten years from the entry of the judgment.
B. RELIEF FROM JUDGMENTS
Next, Mr. White argues that the denial of his Rule 60.02 motion was an abuse of discretion. See Howard v. Howard, 991 S.W.2d 251, 255 (Tenn. Ct. App. 1999) ("[R]elief granted pursuant to rule 60.02 lies within the sound discretion of the trial court. . . ."). Our review of discretionary decisions is limited. Beard v. Bd. of Prof'l Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009). We do not "second-guess the court below" or "substitute [our] discretion for the lower court's." Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). In reviewing discretionary decisions, we consider "(1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the lower court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the lower court's decision was within the range of acceptable alternative dispositions." Id. We "review the underlying factual findings using the preponderance of the evidence standard . . . and . . . the lower court's legal determinations de novo without any presumption of correctness." Id. at 525.
There was no abuse of discretion in denying the motion for relief. As the trial court concluded, no relief was available under Rule 60.02 because a final judgment had not been entered when the request was made.
For the foregoing reasons, we affirm the decision of the circuit court.
Tenn. R. Civ. P. 69.04. Throughout this opinion, citations to Tennessee Rule of Civil Procedure 69.04 are to the version in effect before July 1, 2016.
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (internal citations omitted).