IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submitted on Briefs June 26, 2001

PEARL LYNELL POTTS, Individually And Executor of the Estate of Gordon Ray Potts, Sr., Deceased, v. MARY POTTS MAYFORTH and GORDON RAY POTTS, JR., and CONNECTICUT GENERAL LIFE INSURANCE COMPANY v. ALICE ELIZABETH NELSON

Direct Appeal from the Chancery Court for Carter County No. 24432 Hon. G. Richard Johnson, Chancellor FILED AUGUST 9, 2001

No. E2000-03116-COA-R3-CV

The Trial Court entered a Default Judgment against Potts pursuant to Tenn. R. Civ. P. 37.02 and then summary judgment for plaintiffs. On appeal by defendants, we affirm the Judgment of the Trial Court. Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed. HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY , J., joined. Mary E. Potts Mayforth, Kensington, MD., pro se. Gordon R. Potts, Jr., Forsythe, MO., pro se. Kathryn J. Dugger-Edwards, Elizabethton, TN., for Appellee, Pearl Lynell Potts. Reginald E. Keaton, Knoxville, TN., for Appellee, Connecticut General Life Insurance. OPINION The appellants, Mary Potts Mayforth and Gordon R. Potts, Jr., have raised myriad issues on appeal, most of which are without merit on their face or were not raised below. We conclude the following issues are properly before this Court: 1.. Did the Trial Court err in denying and dismissing Defendants Potts’ and Mayforth’s Motion for Sanctions?

“once the case is remanded to state court.” The USDC further found that there had been no compliance with Title 28 § 1446 which provides the proper procedure for removal. Accordingly, the Court found that it had no jurisdiction to enforce the purported settlement and again remanded the case to State Court.

Plaintiff filed a Motion for Sanctions against Defendant Gordon Potts, Jr., pursuant to Tennessee Rule of Civil Procedure 37.02, alleging that Potts had repeatedly failed to comply with discovery requests and had lied in answering interrogatories regarding questions about his father’s money.

Potts filed a request for a jury trial on the Motion for Sanctions, and he and Mayforth filed a request for a jury trial on their motion for sanctions against the plaintiff, her attorney and their former attorney. The Insurance Company filed another motion for enforcement of the settlement agreement, requesting that the court allow it deposit the insurance proceeds with the court and be discharged from liability.

The Trial Court then conducted a hearing on the numerous motions before it, and granted the Insurance Company’s motion to enforce the settlement agreement, by Order dated November 20, 2000. The Insurance Company was allowed to deposit the insurance proceeds with the Court and was discharged from all liability. The Court then made the following rulings on the remaining issues:

1. The motion of Gordon Ray Potts Jr. to be heard via telephonic conference is respectfully denied.

2. The motion of Gordon Ray Potts Jr. for a jury trial on the motion for sanctions is respectfully denied.

the sum of $36,652.881, for which execution may issue if not paid.

Defendant Potts complains that he was not granted due process with regard to the hearing on the Motion for Sanctions. However, the record shows that the defendant had sufficient notice of the hearing.

Despite this notice (and the Court’s accommodation of defendant’s request for a continuance), defendant Potts failed to appear at the hearing to offer any evidence in his defense. His sister, Mary Mayforth attempted to represent him by filing and signing a response to the Motion for Sanctions. The Court properly found that she would not be allowed to represent her brother. The case of Shahrdar v. Global Housing, Inc., 983 S.W.2d 230 (Tenn. Ct. App. 1998) explains the propriety of granting a default judgment as a sanction against a party who fails to comply with discovery orders.

Rule 37.02(C) of the Tennessee Rules of Civil Procedure provides that a trial court faced with a party who fails to obey an order to provide discovery may render a judgment by default against the disobedient party. Although this sanction is extreme, it is appropriate “where there has been a clear record of delay or contumacious conduct.” When a trial court exercises its discretion in rendering a default judgment as a sanction, its decision will be disturbed only upon a finding of abuse of that discretion.

983 S.W.2d at 236 (internal citations omitted).

Upon review of this extensive record, it is apparent that defendant Potts’ conduct in the case was uncooperative at best. The Court found that Potts had “engaged in a course of conduct that is designed to totally frustrate this trial from going forward.” The Court further found that the uncontradicted evidence establishes that Potts “has committed perjury, has lied under oath, in his interrogatories about these various checks . . .” This conduct by the defendant rises to such a level of contemptuous behavior, that the Trial Court acted within its discretion in entering a default judgment as sanctions for his misconduct.

Of course, a default judgment “will not authorize a decree in favor of the plaintiff, unless the complaint shows a ground for relief against the defendant.” Shahrdar, 983 S.W.2d at 236- 237. Plaintiff’s averred that Potts by fraud or deceit, did steal money belonging to the deceased. Defendant Potts failed to produce his bank records from South Padre Bank and failed to answer truthfully the interrogatories pertaining the missing money from the deceased. The bank records from South Padre Bank showed deposits into the defendant’s accounts for the exact sums of money missing from the decedent. These records, along with the evasive and deceitful conduct of the Defendant during discovery, establishes the basis for plaintiff’s claim for relief against him.

Defendant Potts argues that the Court erred in denying him the right to a jury trial on his Motion for Sanctions entered and relies upon T.C.A. 21-1-103 for his alleged right to a jury trial. An exception to a jury trial in this State, is that one is not entitled to a jury in a contempt proceedings. See Pass v. State, 184 S.W.2d 1 (Tenn. 1945); Weinstein v. Heimberg, 490 S.W.2d 692 (Tenn. Ct. App. 1972). The sanctions requested by plaintiff were pursuant to Rule 37.02 for failure of a party to obey an order of the Court. Rule 37.02 allows a court to treat this disobedience of a court order as contempt. Accordingly, the defendant was not entitled to a jury trial.

Defendants insist they did not have proper notice that the summary judgment Motion would be heard. While the defendants did not have notice that the Motion would be heard on November 27, 2000, it having previously been ruled that it would not be heard then, they did have notice that the Court was going to reconsider its prior ruling at that time. They also had ample time to respond to plaintiffs’ April Motion for Summary Judgment by submitting evidence that would establish that summary judgment was improper. Because of the sufficient opportunity to show why summary judgment might be inappropriate, the defendants were not prejudiced by the Court’s decision to rule on the Motion at the November hearing.

As to the merits of the summary judgment, the Trial Court found the following facts to be established and not disputed:

1. On October 9, 1995, the deceased, Gordon R. Potts Sr. named as primary beneficiary his wife, Pearl Lynell Potts on the life insurance policy issued by Defendant Connecticut General Life Insurance Company.

2. A subsequent change of beneficiary form was submitted to Connecticut General Life Insurance Company on July 23, 1999. The change of beneficiary form was not signed, nor dated by the owner decedent, Gordon R. Potts Sr.

3. Connecticut General Life Insurance Company policy provisions required the following to change a beneficiary. “Each Owner may change the Beneficiary at any time, unless the Beneficiary designation is irrevocable. The change must be made on a form satisfactory to CG and signed by the Owner. No change of Beneficiary will take effect until this form is received by CG. Then this form is received, the change will take effect as of the date of the form. If the Insured dies before the form is received, CG will not be liable for any payment that was made before receipt of the form.

Based on these facts, the Trial Court determined that as a matter of law, the attempted change of beneficiary was ineffective as it was not signed. The Court further found that the change of beneficiary form did not substantially comply with the requirements for a change of beneficiary as required by the Insurance Company. The Court found that there had been no response to each set of facts set forth by the plaintiff in accordance with Rule 56 of the Tennessee Rules of Civil Procedure.

The Chancellor correctly found that there had been no substantial compliance with the policy requirements in this case. The form requesting change of beneficiary was not signed by the insured, nor was it dated. By filling out a portion of the form and submitting to the insurance company, the insured did not do all that he could to comply with the requirements of the policy. Because the form was not signed, as required, we hold that there was not substantial compliance with the requirements of the policy. See Sun Life Assurance Co. of Canada v. Hicks, 844 S.W.2d 652 (Tenn. Ct. App. 1992). We affirm the Trial Court’s grant of a summary judgment.

Finally, defendants argument that the Court erred in assessing costs against them is without merit. See Tennessee Code Annotated §20-12-101.

We affirm the Judgment of the Trial Court and remand, with the cost of this appeal assessed jointly against the defendants Gordon R. Potts, Jr., and Mary Potts Mayforth.

_________________________ HERSCHEL PICKENS FRANKS, J.