text:
    Charles POINTER, Appellant, v. Venita WASHINGTON, Respondent.
    No. ED 86169.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 14, 2006.

      Charles Pointer, St. Louis, MO, pro se.
    Venita Washington, Ferguson, MO, pro se.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J„ and SHERRI B. SULLIVAN, J.
   PER CURIAM.

Charles Pointer (“Father”) appeals from the trial court’s order denying his petition for a preliminary injunction order to enjoin Venita Washington (“Mother”) from taking back child support from him. Because there is no final, appealable judgment, we dismiss the appeal.

Father and Mother married: on September 22,1984. They had two children: B.J., born August 17, 1984, and K.K.A., born August 20, 1985. Father and Mother divorced on March 7, 1990. Under the Decree of Dissolution (“Decree”), the court awarded Mother general care, custody and control of the parties’ children. Father was granted reasonable visitation and temporary custody of the minor children away from Mother’s residence, with transportation provided by a maternal aunt every other weekend. The Decree also ordered Father to pay Mother $265.00 per month for each of the minor unemancipated children and $1.00 per month for maintenance.

According to Father, after graduating from high school, K.K.A. enrolled in St. Louis Christian College; she still attends. B.J. enrolled in St. Louis Community College after graduating from high school, but withdrew after one semester after being diagnosed with a severe mental illness.

On October 5, 2004, Father filed a Motion for Temporary Injunction, which requested an order prohibiting Mother from continuing to collect unpaid child support, alleging that he had to pay emergency medical expenses for himself. He requested a dismissal of the back child support, contending that under Section 452.340 child support should be stopped when visitation rights stopped. He also claimed that his obligation to pay support for the parties’ two children should be terminated because both children were emancipated or alternatively abated because Mother interfered with his rights to visit the children.

On March 29, 2005, during the pre-trial hearing on Father’s motion, Edith Davis (“Davis”), a representative of the Missouri Family Support Division, Child Support Enforcement (“Division”), testified that Father owed Mother $60,697.76 for maintenance and support. Davis acknowledged that Division discontinued pursuing collection of current support for B.J. in August 2002, when she turned eighteen years old, and for K.K.A. in August 2003, when she turned eighteen years old.

In the court’s Order and Judgment (“Order”) on April 7, 2005, it found that since K.K.A. was still attending college and B.J. suffered from a severe mental illness, both daughters remained unemancipated. Since neither K.K.A. nor B.J. was emancipated, the court found that the Division erred in discontinuing its efforts to collect current support for both children. According to the court, Father merely argued that K.K.A.’s attendance at a nonsecular college does not qualify her for .continued support but failed to introduce any evidence contradicting Mother’s testimony. Because the children were not emancipated, the court found that his obligation to pay for the children’s support should not be terminated.

Further, the court noted that Father presented no evidence at the pre-trial hearing on the issue of his denial of visitation and temporary custody with the parties’ children. During the hearing, Mother stated that even though she had numerous restraining orders against Father and her sister had moved away from St. Louis four or five years ago, she was willing to transport the children so Father could exercise his periods of visitation, but she did not know his whereabouts. Therefore, besides not terminating Father’s obligation to pay child support, the court found that Father was not entitled to an abatement of his obligation to pay child support. On April 14, 2005, Father timely filed a notice of appeal informa pauperis pro se.

Father raises eight claims of error on appeal. However, none of Father’s points relied on complies with Rule 84.04(d). Under Rule 84.04(d), each point relied on must: (1) identify the trial court ruling or action that the appellant challenges; (2) state concisely the legal reasons for the appellant’s claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. Although Father’s points on appeal fail to satisfy the requirements of Rule 84.04(d), it appears that Father essentially has one point on appeal: Father claims that the trial court erred in denying his motion for temporary injunction to stop Mother from continuing to collect unpaid child support. We need not reach this question.

An appellate court has jurisdiction only over final judgments that dispose of all parties and issues in the case and leave nothing for future determination. Hair Kraz, Inc. v. Schuchardt, 131 S.W.3d 854, 854 (Mo.App. E.D.2004). Generally, orders entered during the temporary injunction stage are not final orders, thus no appeal lies from the denial of a preliminary injunction. Hagen v. Bank of Piedmont, 763 S.W.2d 384, 385 (Mo.App. S.D.1989). An order dissolving a temporary restraining order or denying a preliminary injunction is interlocutory in nature and thus is not appealable. Spectrum Cleaning Servs. Inc. v. Blalack, 990 S.W.2d 656, 658 (Mo.App. E.D.1999). Until a permanent injunction is granted after a final disposition on the merits of the case, no final judgment on an injunction is entered. Id. at 855. If the trial court’s judgment is not final, we must dismiss the appeal for lack of jurisdiction. Spectrum Cleaning Servs. Inc., 990 S.W.2d at 658.

The appeal here is from a judgment denying Father’s motion for a preliminary injunction. Since the court’s order denying Father’s motion is interlocutory in nature, it is not a final judgment for purposes of appeal. Accordingly, we dismiss the appeal without prejudice for lack of a final, appealable judgment.

      . All statutory references are to RSMo.2004, unless otherwise indicated. We note that Section 452.340.7 provides the following:
      A court with jurisdiction may abate, in whole or in part, any past or future obligation of support and may transfer the physical and legal or physical or legal custody of one or more children if it finds that a parent has, without good cause, failed to provide visitation or physical and legal or physical or legal custody to the other parent pursuant to the terms of a judgment of dissolution, legal separation or modifications thereof.

      . All rule references are to Mo. Rules Civ. P.2005, unless otherwise indicated.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Maureen BUTLER, Claimant/Appellant, v. CAFE MANHATTAN, INC. and Division of Employment Security, Respondents.
    No. ED 86278.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 14, 2006.
    Maureen Butler, St. Louis, MO, pro se.
    Daniel J. Doetze, Richard P. Perkins, St. Louis, Alan J. Downs, Jefferson City, MO, for respondents.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Claimant, Maureen Butler, appeals from the decision by the Labor and Industrial Relations Commission denying her claim for unemployment benefits, because it found she committed aggravated misconduct connected with her work. There is no error under section 288.210 RSMo.2000. An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The decision is affirmed. Rule 84.16(b).


text:
    Derrick WOOLFOLK, Appellant, v. STATE of Missouri, Defendant.
    No. ED 86360.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 14, 2006.
    Timothy Forneris, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Derrick Woolfolk (“Movant”) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant raises two points on appeal. In his first point, Movant claims that the motion court erred in denying his post-conviction claim that his plea counsel was ineffective for misadvising him about the length of the sentence and parole eligibility. Second, Movant claims that his counsel’s attempt to persuade him to enter a guilty plea resulted in Movant and counsel having conflicting interests concerning Mov-ant’s case. Movant argues that had his counsel provided effective assistance, he would have refused to plead guilty and would have insisted on going to trial. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order. ■

We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. Rules Crim. P.2004, unless otherwise indicated.


text:
    Robin BAKER, Respondent, v. David BAKER, Appellant.
    No. ED 85412.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 14, 2006.
    Daniel P. Card, Jefferson City, Michael C. Todt, St. Charles, MO, for appellant.
    Michael A. Gross, Joseph F. Yeckel St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The father, David J. Baker, appeals the judgment of the Circuit Court of Jefferson County denying his motion to modify child support and physical custody of the minor child of his marriage to Robin Baker (now Robin Magana), the mother. We have reviewed the parties’ briefs and the record on appeal and find no error.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The trial court’s judgment is affirmed. Rule 84.16(b)(5).


author: GLENN A. NORTON, C.J.

text:
    Samuel BARKER, Appellant, v. Larry ROWLEY, Respondent.
    No. ED 87210.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 14, 2006.
    Samuel Barker, Maryville, MO, pro se.

      Jeremiah Nixon, Atty. Gen., Attorney General Office, Jefferson City, MO, for respondent.
   GLENN A. NORTON, C.J.

Samuel Barker appeals from a judgment denying his petition for writ of habeas corpus. The appeal is dismissed.

If this Court lacks jurisdiction to entertain an appeal, then it should be dismissed. Buff v. Roper, 155 S.W.3d 811, 812 (Mo.App. E.D.2005). Appellant seeks to appeal from the circuit court’s judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003). A petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant has failed to file a response.

The appeal is dismissed for lack of an appealable judgment.

KATHIANNE KNAUP CRANE, J., and BOOKER T. SHAW, J., concur.


text:
    Samuel BARKER, Appellant, v. Larry ROWLEY, Respondent.
    No. ED 87384.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 14, 2006.
    Samuel Barker, Maryville, MO, pro se.
    Andrew Hassell, Attorney General Office, Jefferson City, MO, for respondent.
   GLENN A. NORTON, C.J.

Samuel Barker appeals from a judgment denying his petition for writ of habeas corpus. The appeal is dismissed.

If this Court lacks jurisdiction to entertain an appeal, then it should be dismissed. Buff v. Roper, 155 S.W.3d 811, 812 (Mo.App. E.D.2005). Appellant seeks to appeal from the circuit court’s judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003). A petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant has failed to file a response.

The appeal is dismissed for lack of an appealable judgment.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


text:
    Charleen STOGSDILL, Claimant/Appellant, v. BJC HEALTHCARE and Division of Employment Security, Respondents.
    No. ED 87433.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 14, 2006.
    Charleen Stogsdill, Arnold, MO, pro se.
    Cynthia A. Quetsch, Jefferson City, Gail Powers, BJC Corp. Attorney, Saint Louis, MO, for Respondent.
   GLENN A. NORTON, C.J.

Claimant Charleen Stogsdill appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing her application for review as untimely. We dismiss her appeal.

The Division of Employment Security denied Claimant’s application for unemployment benefits, after concluding that she was discharged from her employment for misconduct. Claimant sought review of that decision with the Appeals Tribunal, which dismissed her appeal for failing to file a timely notice of appeal. Claimant then filed an application for review with the Commission, which dismissed her application as untimely. Claimant has now appealed to this Court. The Division has filed a motion to dismiss Claimant’s appeal, contending her failure to file a timely application for review to the Commission deprives this Court of jurisdiction. Claimant has not filed a response to the motion.

A claimant has thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. The Appeals Tribunal certified that it mailed its decision to Claimant on September 19, 2005. Therefore, her application for review was due thirty days later on October 19, 2005. Section 288.200.1. Claimant mailed her application for review on November 23, 2005, which is outside the time limitations of section 288.200.

The unemployment statutes provide for no exceptions to the time requirement for filing an application for review. In addition, the failure to file a timely application for review automatically divests the Commission of jurisdiction and it could only dismiss the application for review. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App. E.D.2003). Because the Commission had no jurisdiction over Claimant’s case, this Court has no jurisdiction. Id. Our only recourse is to dismiss the appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). The Division’s motion to dismiss is granted.

The appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


text:
    Norma BROWN, Claimant/Appellant, v. MEMC ELECTRONIC MATERIALS, INC., and Division of Employment Security, Respondents.
    No. ED 87502.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 14, 2006.
    Cynthia A. Quetsch, Jefferson City, MO, for Respondent.
    Norma Brown, Moscow Mills, MO, pro se.
    MEMC Electronic Materials, Inc., St. Peters, MO, pro se.
   GLENN A. NORTON, C.J.

Claimant Norma Brown appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing her application for review as untimely. We dismiss her appeal.

A deputy of the Division of Employment Security concluded that Claimant was disqualified from receiving unemployment benefits, because she left her job voluntarily without good cause attributable to her work or employer. Claimant sought review of that decision with the Appeals Tribunal, which affirmed the deputy’s decision. Claimant filed an application for review with the Commission, which dismissed her application as untimely. Claimant has now appealed to this Court. The Division has filed a motion to dismiss Claimant’s appeal, contending her failure to file a timely application for review deprives this Court of jurisdiction. Claimant has not filed a response to the motion.

The statutes governing unemployment matters provide a claimant with thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. The Appeals Tribunal certified that it mailed its decision to Claimant on August 12, 2005. Therefore, her application for review was due thirty days later, on Monday, September 12, 2005. Section 288.200.1; Section 288.240, RSMo 2000 (if thirtieth day falls on Sunday, the filing is timely if accomplished on next business day). Here, Claimant mailed her application for review on October 20, 2005, which is out of time.

Claimant did not file a response to the Commission’s motion. However, in her attachments to her notice of appeal to this Court, Claimant asserted she never received the Appeals Tribunal’s decision. The Appeals Tribunal has certified that it mailed the decision to Claimant at her last known address, which appears unchanged. Despite Claimant’s assertions, the unemployment statutes provide absolutely no exceptions to the time requirement for filing an application for review. Indeed, the failure to file a timely application for review automatically divests the Commission of jurisdiction and it can only dismiss the application for review. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App. E.D.2003).

In addition, this Court has no jurisdiction, because our jurisdiction is derived from that of the Commission. Id. Our only recourse is to dismiss the appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). The Division’s motion to dismiss is granted.

The appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


text:
    David A. TURNER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86382.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 14, 2006.
    David A. Turner, Bonne Terre, MO., Attorney Acting pro se.
    Shaun J. Mackelprang, Attorney, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, David A. Turner, appeals from the judgment denying his motion to reopen his post-conviction proceeding. An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    Suvad ARSLANOVIC, Claimant/Appellant, v. KIRKWOOD SCHOOL DISTRICT, and Division of Employment Security, Respondents.
    No. ED 87200.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 14, 2006.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Suvad Arslanovic, Saint Louis, MO, pro se.
    Kirkwood School District, Saint Louis, MO, pro se.
   GLENN A. NORTON, C.J.

Claimant Suvad Arslanovic appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing his application for review as untimely. We dismiss his appeal.

Claimant’s notice of appeal to this Court was due twenty (20) days after the Commission’s decision was final. Section 288.210, RSMo 2000. The Commission’s decision became final ten (10) days after the date of the mailing of its decision to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on August 25, 2005. The decision became final ten days later and Claimant’s notice of appeal was due on Monday, September 26, 2005. Section 288.200.2, 288.210, and 288.240, RSMo 2000. Claimant filed his notice of appeal on November 9, 2005 and it is untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 133 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed. Claimant has not filed a response. Section 288.210 makes no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003). Our only recourse is to dismiss the appeal. Phillips, 34 S.W.3d at 855.

The appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE, J„ and BOOKER T. SHAW, J., concur.

      . In addition, Claimant’s application for review to the Commission was dismissed as untimely. The failure to file a timely application for review automatically divests the Commission of jurisdiction and it can only dismiss the application for review. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App. E.D.2003). This Court has no jurisdiction, because our jurisdiction is derived from that of the Commission. Id.


text:
    David BROWN, Plaintiff/Respondent, v. Joanne BROWN, Defendant/Appellant.
    No. ED 87007.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 14, 2006.
    Alan Freed, Saint Louis, MO, for Plaintiff/Respondent.
    Dave Senkel, Hillsboro, MO, for Defendant/Appellant.
   GLENN A. NORTON, C.J.

Joanne Brown (Appellant) appeals from the trial court’s judgment of dissolution of marriage in accordance with the parties’ property settlement and separation agreement. Because her notice of appeal to this Court is untimely, her appeal is dismissed.

Under Rule 81.04(a), the notice of appeal must be filed no later than ten (10) days after the judgment becomes final. If a party files a timely authorized after-trial motion, the judgment becomes final at the expiration of ninety (90) days after the filing of the motion or, if such motion is passed on at an earlier date, at the later of: (1) thirty (30) days after the entry of judgment; or (2) disposition of the motion. Rule 81.05(a)(2). However, if no authorized after-trial motion is timely filed, the judgment becomes final thirty (30) days after the entry of the judgment. Rule 81.05(a)(1).

Here, the circuit court entered its judgment on May 16, 2005. Appellant filed a motion to vacate, reopen, correct, amend or modify the judgment on June 16, 2005. However, this motion was untimely, because it was not filed within 30 days of the entry of judgment. Rule 78.04; Rule 44.01(a). Therefore, the judgment in question became final on June 15, 2005, and the notice of appeal was due ten days later, on Monday, June 27, 2005. Rule 81.04(a); Rule 44.01(a). Appellant’s notice of appeal was filed on September 29, 2005, and it is untimely. When a notice of appeal is untimely filed, this court is without jurisdiction and must dismiss the appeal. Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App. E.D.2004).

This Court issued an order directing Appellant to show cause why this appeal should not be dismissed. Appellant has not filed a response.

The appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE, J. and BOOKER T. SHAW, J., concur.


author: PHILLIP R. GARRISON, Judge.

text:
    In re the MARRIAGE OF George A. KOCH and Christine M. Koch, George A. Koch, Petitioner-Respondent, v. Christine M. Koch, Respondent-Appellant.
    Nos. 26754, 26904.
    Missouri Court of Appeals, Southern District, Division Two.
    March 14, 2006.

      Paul Graham, Carson & Coil, P.C., Jefferson City, for Appellant.
    John E. Curran, Curran & Sickal, Osage Beach, for respondent..
   PHILLIP R. GARRISON, Judge.

Christine A. Koch (“Wife”) appeals from the amended judgment dissolving her marriage to George A. Koch (“Husband”), contending that the trial court erred in denying her maintenance and making its order non-modifiable; and in awarding her only a portion of her attorney fees. We affirm.

Husband and Wife were married, while Husband was in medical school, on April 3, 1993, in Jasper County, Missouri. Two children were born of the marriage, one in 1995, and one in 2001. Prior to the marriage, Husband had applied for and received various student loans so that he could attend medical school. These funds, coupled with Wife’s work outside of the home, prior to the birth of their first child, provided their living expenses until Husband began his medical practice in 2002. Upon Husband’s graduation from medical school in 1997, the parties moved to Columbia, Missouri, so that Husband could complete his residency and post-graduate fellowship with University of Missouri Columbia. Husband and Wife separated for the first time in June 2000, for approximately eleven months during which time Wife was employed by a graphic arts company, earning $8 per hour. The parties reunited in June 2001. In March 2002, Husband began work as an independent physician at Lake Regional Hospital in Osage Beach, Missouri. In November 2003, Husband and Wife again separated.

Husband filed a petition for dissolution of marriage, and Wife subsequently filed hey answer and cross-petition. After a two-day hearing, the trial court entered its judgment and decree of dissolution of marriage. Husband subsequently filed a motion for new trial, or in the alternative for an amended judgment. The trial court entered its amended judgment and decree of dissolution of marriage. Wife now appeals.

Wife raises two points on this appeal. In Point I, she argues that the trial court abused its discretion in failing to award her maintenance and in making its order non-modifiable, and in Point II, she alleges that the trial court abused its discretion in awarding her only a portion of her attorney’s fees.

At the outset we note that throughout Wife’s brief, she fails to provide citations to any precedents supporting her assertions, and does not provide an explanation for those absences. As the appellant in this case, Wife is obligated to cite “appropriate and available precedent, and if none is available, an explanation should be made of its absence.” Buchholz v. Buchholz, 166 S.W.3d 146, 160 (Mo.App. S.D.2005). We are justified in considering an appellant’s point relied on abandoned when she fails to cite relevant authority or explain why none exists. In re Marriage of Garrison, 158 S.W.3d 336, 338 (Mo.App. S.D.2005); see also Boyd v. Boyd, 134 S.W.3d 820, 825 (Mo.App. W.D.2004). Furthermore, Wife’s argument sections should “show how the principles of law and the facts of the case interact.” Boyd, 134 S.W.3d at 824 (quoting Jenkins v. Manpower on Site at Proctor and Gamble, 106 S.W.3d 620, 624 (Mo.App. W.D.2003)).

In Point I, Wife argues that the trial court erred in denying her motion for maintenance in that there was compelling evidence that Wife required maintenance at the time of trial and that Husband could pay maintenance. She also alleges the trial court erred by making its denial of maintenance non-modifiable in that Wife’s future income and Husband’s ability to pay maintenance in the future was speculative. We disagree as to both issues.

We first note that Wife has failed to cite or explain the absence of any relevant authority in connection with her argument that she should have been awarded maintenance. Accordingly, as discussed above, we would be justified in finding the issue abandoned. However, in accordance with our policy of ruling on the merits where possible, as opposed to dismissing for briefing deficiencies, we consider Wife’s argument. See Boyd, 134 S.W.3d at 824.

We review the trial court’s denial of maintenance to Wife for abuse of discretion. Barton v. Barton, 157 S.W.3d 762, 765 (Mo.App. E.D.2005). The trial court’s decision will be upheld unless it is not supported by the evidence, is against the weight of the evidence or erroneously declares or applies the law. Id.; see also In re Marriage of Thompson, 24 S.W.3d 751, 753 (Mo.App. S.D.2000). On the other hand, if the evidence suggests that the party seeking maintenance can not meet her reasonable needs and that maintenance is appropriate, then we “must consider the factors enumerated in Section 452.335.2 ... and balance the reasonable needs of the spouse seeking maintenance with the other spouse’s ability to pay.” Linton v. Linton, 117 S.W.3d 198, 205 (Mo.App. S.D.2003) (quoting Myers v. Myers, 47 S.W.3d 403, 409 (Mo.App. S.D.2001)).

Maintenance awards are governed by Section 452.335.1, which states in pertinent part:

[T]he court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.[]

The threshold question under this statute is whether the spouse seeking maintenance can meet his or her reasonable needs with property or through employment. Thompson, 24 S.W.3d at 754. As such, a denial of maintenance will be affirmed on appeal when evidence exists that the party seeking the award can support herself with property or through employment. Id. The spouse seeking maintenance has the burden to establish that her reasonable needs cannot be met. Barton, 157 S.W.3d at 766.

Although the thrust of Wife’s argument centers upon Husband’s ability to pay maintenance, we do not reach that issue as we agree with the trial court that Wife has failed to satisfy the first prong of the maintenance test; she did not establish that she could not meet her reasonable needs. Wife’s testimony supports the trial court’s finding that she has the ability to earn between $10 and $12 per hour. In this appeal however, Wife argues that her earning power is approximately $8 per hour and not the $10 to $12 per hour that the trial court attributed to her. She testified that her monthly needs range from $6,000 to $7,000 per month.

The only evidence of what expenses constitute that estimate is found in Wife’s income and expense statement (“the statement”). The trial court does not address the statement, but it appears that she estimates that her total monthly expenses would total $7,657. However, a number of the items included in the statement were disposed of by the trial court in the dissolution decree. Wife includes $1,812 for expenses regarding the parties’ two children. However, the children’s expenses were provided for in the court’s order that Husband pay $2,302 per month in child support. Wife included $400 per month for health insurance, which the trial court provided for by ordering Husband to pay the children’s health insurance. Wife also included $2,440 for the mortgage payment, real estate taxes and maintenance on the marital home, however, the trial court awarded the home and its mortgage to Husband. Finally, Wife included $285 per month for the loan payment on the Chevy Avalanche which was awarded to Husband. In addition, Wife included $798 per month for the expenses of her child from a previous relationship. By our calculation these alleged expenses make up $5,735 of the $6,000 to $7,000 in monthly expenses Wife claimed in her testimony. As such, the record supports the trial court’s disregard of Wife’s statement.

The evidence also supports the trial court’s finding that Wife has the ability to earn between $10 and $12 per hour. Wife testified that during their first separation she obtained work for $8 per hour and that after their latest separation, she started a decorative painting business in which she expected to earn between $2,000 and $4,000 per month. This evidence, together with Wife’s failure to provide the trial court with credible evidence of her needs, supports the trial courts finding that Wife had the ability to meet her reasonable needs through employment.

Wife also argues that the trial court erred in making its denial of maintenance order non-modifiable. In this regard, she states that “the trial court simply could not find that she was capable of meeting her needs then [presumably at the time of dissolution] or at a definite point in the future,” because her needs “stood at $6,000[] to $7,000[] per month and her actual income ability stood at $8[] per hour.” She relies upon In re Marriage of Honeycutt, for the proposition that courts should not speculate that a wife’s income will meet her living expenses or that a husband’s income will no longer be sufficient to provide for his own needs while providing maintenance. 649 S.W.2d 502, 504 (Mo.App. S.D.1983).

It should be noted at this point that the trial court did not speculate on Wife’s needs. As discussed above, there was sufficient evidence to support the court’s finding that Wife was capable of earning between $10 and $12 per hour and that her claim of $6,000 to $7,000 per month in expenses was not credible. Nevertheless, Honeycutt does nothing to aid Wife’s argument. In .that case the trial court awarded maintenance and here the trial court denied Wife maintenance.

Wife cites no case which stands for the proposition that a denial of maintenance cannot be non-modifiable. Nor does Wife direct us to any authority suggesting that a party who has been denied maintenance at dissolution may later claim that she is unable to meet her needs and that her former spouse should be made to pay maintenance. Accordingly, Point I is denied.

In Point II, Wife argues that the trial court abused its discretion in only awarding her $2,500 in attorney’s fees. We review the trial court’s award of attorney’s fees for abuse of discretion. In re Marriage of Thompson, 24 S.W.3d at 756. In order to show an abuse of discretion, the party challenging the trial court’s award must “show that the order is ‘clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of deliberation.’ ” Id. (quoting Mistier v. Mistier, 816 S.W.2d 241, 256 (Mo.App. S.D.1991)).

Wife does not cite to a single case outside her rendition of the standard of review. She spends the entirety of her argument alleging that Husband was responsible for the trial taking two days and that he, as opposed to her, had the means to pay her attorney’s fees. She points us to no precedent, nor does she explain its absence, which holds that under those circumstances the trial court abused its discretion in failing to award a greater amount of attorney’s fees.

As noted above, it is Wife’s obligation to either cite relevant authority or explain its absence. Buchholz, 166 S.W.3d at 160. The argument section of an appellate brief should illustrate how the law intersects with the facts presented. Boyd, 134 S.W.3d at 824. The complete absence of legal principles in an argument section justifies considering Wife’s point abandoned. See In re Marriage of Garrison, 158 S.W.3d at 338. Accordingly, Point II is denied.

The judgment is affirmed.

BATES, C.J., and SHRUM, P.J., concur.

      . Husband filed a motion to dismiss Wife’s appeal contending that Wife failed to appeal a final judgment because her notice of appeal and her brief to this court referenced the original judgment entered on November 18, 2004, as opposed to the amended judgment entered on March 17, 2005. On September 22, 2005, Wife filed a motion for leave to file a notice of appeal out of time. Rule 81.07 permits a special order allowing a late filing of a notice of appeal so long as the motion to do so is within six months of the final judgment and a showing is made that the delay was not due to appellant's culpable negligence. Pursuant to Rule 81.05, the amended judgment did not become final until April 17, 2005, and as such Wife’s motion is in compliance with Rule 81.07. Accordingly, Wife's motion is sustained and Husband’s motion to dismiss is denied. All references to rules are to Missouri Rules of Civil Procedure (2005) unless otherwise indicated.

      . All references to statutes are to RSMo (2000) unless otherwise indicated.

      . Wife makes no argument that she is the custodian of a child whose condition or circumstances make it appropriate that she should not be required to work outside the home.

      . In Honeycutt, the husband argued that the maintenance award should have been limited to a definite period of time. Id. (wife was attending college and husband argued that maintenance should terminate one month after she graduated). In denying husband's contention, we stated that the court was correct in declining to speculate on what wife's income in the future would be and that such an inquiry is best left to a proceeding for modification of maintenance. Id.


author: FRANK G. CLEMENT, JR., J.,

text:
    TEXACO REFINING & MARKETING, INC. v. STATE of Tennessee DEPARTMENT OF ENVIRONMENT AND CONSERVATION, DIVISION OF UNDERGROUND STORAGE TANKS.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Jan. 6, 2005 Session.
    Sept. 27, 2005.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth P. McCarter, Senior Counsel, for the appellant, State of Tennessee Department of Environment and Conservation, Division of Underground Storage Tanks.
    Howard E. Jarvis and Tony R. Dalton, Knoxville, Tennessee, for the appellee, Texaco Refining & Marketing, Inc.
   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the court,

in which WILLIAM C. KOCH, JR., P.J., M.S., and WILLIAM B. CAIN, J., joined.

Texaco Refining & Marketing, Inc. applied for reimbursement of remediation expenses pursuant to the Tennessee Petroleum Underground Storage Tank Act. When Texaco’s application was denied by the Tennessee Department of Environment and Conservation, Division of Underground Storage Tanks, Texaco filed this Declaratory Judgment action seeking a ruling that it was eligible for reimbursement from the storage tank fund. The Chancery Court granted Texaco’s motion for summary judgment from which the Department appeals. We reverse finding Texaco was not in substantial compliance with the Act because it failed to timely report releases of petroleum, and it had no vested right to reimbursement.

Texaco filed this action seeking a ruling that it is “fund eligible” to apply for remediation expenses from the Tennessee Petroleum Underground Storage Tank Fund for a “release” of petroleum products that occurred prior to the enactment of the Tennessee Petroleum Underground Storage Tank Fund Act (the “Act”), Tenn.Code Ann. 68-215-101, et seq. The trial court treated Texaco’s request for judicial review as a petition for declaratory judgment pursuant to Tenn.Code Ann. § 4-5-225 and summarily ruled that Texaco was “eligible” to seek reimbursement under the Act for the remediation expenses at issue.

The relevant facts, which are not disputed, are succinctly set forth in the trial court’s Memorandum Opinion entered August 29, 2003. It reads in pertinent part:

1. [Texaco] was the owner of four petroleum underground storage tanks (UST’s) located at its facility at 504 Lo-vell Road, Knoxville, Tennessee. In May, 1988, [Texaco] filed an amended Notification for Underground Storage Tanks form with TDEC, Division of Underground Storage Tanks [the Department], evidencing its removal and destruction of these four UST’s on or about March 30,1988.
2. The Tennessee Petroleum Underground Storage Tank Act, now codified as §§ 68-215-101 to 68-215-204 [the Act], became effective July 1, 1988. See 1988 Tenn. Pub. Acts, ch. 984, § 31.
3. The [Act] was amended in April, 1990, to reflect the following “[i]t is the intent of the General Assembly that this chapter shall not apply to releases or other events that occurred prior to July 1, 1988.” See 1990 Tenn. Pub. Acts, ch. 855, § 1.
4. In March, 1991, [Texaco] discovered a release of petroleum hydrocarbons at its location at 504 Lovell Road, Knoxville, during the course of a routine real estate assessment.
5. [Texaco] first reported the discovery of the release to [the Department] during a telephone call on June 14, 1991, between project engineer, Jill Norman, and UST Division employee, Steve Wilson. [Texaco] followed up with written notification to [the Department] on June 20,1991.
6. In May, 1998, [Texaco] submitted to [the Department] an application for authorization for fund eligibility seeking reimbursement from the UST Fund for assessment and remediation expenses incurred at the 504 Lovell Road location from 1991 forward.
7. On June 8, 1998, [the Department’s] UST Division notified [Texaco] in writing that its application for fund coverage for contamination clean-up at this site was denied, because the release occurred before July 1,1988.
8. In July, 1998, [Texaco] filed a Petition to Contested [sic] Case Hearing and Declaratory Order before the UST Board.
9. On January 10, 2002, [the Department] notified [Texaco’s] counsel in writing that it had re-evaluated [Texaco]’s fund eligibility status and determined that [Texaco] was still ineligible for Fund reimbursement because the release was not reported to the Division before April 11,1990.

The issue presented to the trial court was the applicability of the Act, Tenn.Code Ann. § 68-215-101, et seq., to Texaco’s application for fund reimbursement eligibility. The trial court found it significant that the Act was amended in April of 1990, to state: “It is the intent of the general assembly that this chapter shall not apply retroactively to releases or other events that occurred prior to July 1, 1988.” Tenn.Code Ann. § 68-215-102(c). It also found, “[t]he construction of the ... Act has been determined by the Court of Appeals in Memphis Publishing Co. v. Tennessee Petroleum Underground, 1993 WL 476292 (Tenn.Ct.App.1993).” With that conclusion, the trial court went on to find:

The facts in Memphis Publishing Company, (“MPC”) are similar to the facts in the instant case. MPC discovered contamination on its property in August 1987.
The Division denied MPC’s application for fund eligibility based on the restriction in Tenn.Code Ann. § 68-215-102(c), which barred the application of the Act for releases or events occurring prior to July 1,1988.
Finally, the Memphis Court held that the original Act was intended to cover, for fund reimbursement, all releases, regardless of date. Id. 6

Based upon the foregoing findings of fact and conclusions of law, the trial court declared that Texaco was “entitled to have its application for fund eligibility regarding its site at [Texaco] No. 2-471174, 504 Lo-vell Road, Knoxville, considered by [the Department], without regard to the dates of releases of the contamination.” Thus, the motion for summary judgment filed by Texaco was granted, and the motion for summary judgment filed by the Department was denied.

The Department appealed and contends the trial court erred in three ways: one, finding Memphis Publishing Co. v. Tennessee Petroleum Underground, No. 01A01-9305-CH-00202, 1993 WL 476292 (Tenn.Ct.App. Nov.19, 1993), the “law of the case” with respect to Texaco’s release and application for fund reimbursement; two, finding that Texaco had a “vested right to reimbursement”; and, three, finding Texaco in “substantial compliance” with the Act. The Department also contends Texaco was not in “substantial compliance” with the Act, based upon its failure to timely report; therefore, Texaco was not “eligible” for reimbursement.

Standard of Review

' The issues were resolved in the trial court upon summary judgment. Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Advertising & Publishing Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn.2003). This court must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997). We consider the evidence in the light most favorable to the non-moving party and resolve all inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.2002). When reviewing the evidence, we first determine whether factual disputes exist. If a factual dispute exists, we then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993); Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn.Ct.App.1998).

Summary judgments are proper in virtually all civil cases that can be resolved on the basis of legal issues alone, Byrd v. Hall, 847 S.W.2d at 210; Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn.Ct.App.2001); however, they are not appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. The party seeking a summary judgment bears the burden of demonstrating that no genuine disputes of material fact exist and that party is entitled to judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695. Summary judgment should be granted at the trial court level when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion, which is the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn.2002); Webber v. State Farm Mutual Automobile Ins. Co., 49 S.W.3d 265, 269 (Tenn.2001). The court must take the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in favor of that party, discard all countervailing evidence, and, if there is a dispute as to any material fact or if there is any doubt as to the existence of a material fact, summary judgment cannot be granted. Byrd v. Hall, 847 S.W.2d at 210; Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975). The moving party must affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn.Ct.App.2000).

The Memphis Publishing Opinion

The trial court’s decision was based in part on the conclusion the “construction of the ... Act has been determined” in Memphis Publishing Co. v. Tennessee Petroleum Underground, No. 01A01-9305-CH-00202, 1993 WL 476292 (Tenn.Ct.App. Nov.19, 1993) (hereinafter Memphis Publishing I ). We find this conclusion erroneous.

Memphis Publishing I, the opinion upon which the Chancellor relied, was appealed to the Tennessee Supreme Court. On May 9, 1994, the Supreme Court denied the appeal with the notation it was “concurring in results only.” Id. Tenn. S.Ct. R. 4(F)(1) and (3) combine to render such opinions of no precedential value. . If an application for permission to appeal is denied with the notation “concurring in results only,” the opinion has “no prece-dential value.” Id. Since Memphis Publishing I has no precedential value, the legal conclusion by the trial court that “the construction of the questioned Act” was “determined by the Court of Appeals” in Memphis Publishing I was erroneous.

The Department additionally contends the construction of the Act by this court in Memphis Publishing I has no bearing on the parties at bar because the ruling served only as the law of the case, the Memphis Publishing case, and Texaco was not a party to that case.

The phrase “law of the case” refers to a legal doctrine which generally prohibits reconsideration of issues that have already been decided in a prior appeal of the same case. 5 Am.Jur.2d Appellate Review § 605 (1995). In other words, under the law of the case doctrine, an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. Life & Casualty Ins. Co. v. Jett, 175 Tenn. 295, 299, 133 S.W.2d 997, 998-99 (1939); Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 90 (Tenn.Ct.App.1996).

Memphis Publishing Co. v. Tennessee Petroleum Underground Storage Tank Board, 975 S.W.2d 303, 306 (Tenn.1998) (hereinafter Memphis Publishing III).

The law of the case doctrine is based on the common sense recognition that issues previously litigated and decided by a court ordinarily need not be revisited in that case. Id., 975 S.W.2d at 306 (citing Ladd, 939 S.W.2d at 90; see also 5 Am. Jur.2d Appellate Review § 605 (1995)). “[W]hen an initial appeal results in a remand to the trial court, the decision of the appellate court establishes the law of the case which generally must be followed upon remand by the trial court....” Memphis Publishing III, 975 S.W.2d at 306 (citing 1B James W. Moore, Moore’s Federal Practice ¶ 0.404[1] (2d ed.1995)). Stated another way, the decision of the appellate court establishes the law of the case, meaning the case appealed. However, the case at bar is not a remand of the Memphis Publishing case and Texaco was not a party to that case. Therefore, while the construction of the Act as determined in Memphis Publishing I remained the law of that case, it has no applicability to the case at bar.

Substantial Compliance

The Department contends Texaco’s eligibility, if any, to seek reimbursement of its remediation expenses from the Fund is vitiated by its failure to comply with the Underground Storage Tank Board’s regulations governing the reporting of petroleum releases.

Texaco discovered the release in March of 1991 and reported the release to the Department three months later. Tenn. Comp. R. & Reg., ch. 1200-l-15-.05(l)-(4) requires owners and operators of underground storage tanks to report suspected releases within seventy-two hours. The Rule defines an “eligible” owner of underground storage tanks as “an owner or operator that is in ‘substantial compliance’ as defined in subparagraph (hh) of this paragraph.” Rule 1200-l-15-.09(2)(k). Subparagraph (hh) provides: “ ‘substantial compliance’ shall mean that an owner or operator ... has complied with the requirement of Rule 1200-1-15-02(1) through Rule 1200-l-15-.07(5).” Rule 1200-l-15-.09(2)(hh).

The authority of the UST Board to limit Fund eligibility through the promulgation of rules was upheld by this court in Christian v. Tennessee Petroleum Underground Storage Tank Board, 928 S.W.2d 927 (Tenn.Ct.App.1995).

The Tennessee Petroleum Underground Storage Tank Act (Act) authorizes the Board to “promulgate and adopt such rules and regulations in accordance with the provisions of the [UAPA].” T.C.A. § 68-215-107(f). In addition, the Act provides that any person seeking review of an order for • correction may file a written petition with the Commissioner, requesting a hearing before the Board. The hearing is to be conducted by the Board in accordance with the UAPA. T.C.A. § 68-215-119(a)(l) and (b).
We find that under the foregoing rule, it is within TDEC’s discretion to impose a site check requirement to ascertain whether a release has occurred during a period of fund ineligibility. The rule clearly prohibits the application of fund monies for corrective action costs due to a release occurring during the time of fund ineligibility. Without the site check requirement, how else could “a release which occurred during the time of fund ineligibility” be discovered? Further, we do not find the record to suggest that the Board has inconsistently or arbitrarily imposed such requirement.
We conclude that the determination of the Board requiring Christian to undergo a site check to reestablish fund eligibility comports with T.C.A. § 4-5-322(h). The judgment of the trial court upholding the Board’s decision is affirmed.

Christian, 928 S.W.2d at 930-931.

Texaco did not report the release within seventy-two hours. To the contrary, it waited some three months to report the release. By failing to comply with the seventy-two hour time constraint under Rule 1200-l-15-.05(l)-(4), Texaco was not in substantial compliance. Therefore, it was not eligible — not an eligible owner— pursuant to Rule 1200-l-15-.09(2)(k). Thus, Texaco is not eligible for reimbursement from the Fund of the remediation costs at issue.

Justifiable Reliance on the 1988 Act

The Department contends Texaco had no vested right before passage of the 1990 amendment to the Act that restricted the Fund to releases occurring after 1988 because Texaco did not incur an obligation or expend funds at a time it could have justifiably relied on the Act.

Memphis Publishing Company was found to have a vested right to claim reimbursement from the fund. Memphis Publishing Co. I, 1993 WL 476292 at *7. The relevant part of the ruling centered on timing. Significant facts the court considered were when Memphis Publishing Company incurred the remediation expenses, when the Act went into effect, and when the restrictive amendment went into effect. Id. Significantly, the court found that Memphis Publishing Company incurred $800,000 in remediation expenses and applied for reimbursement before the amendment. Id.

Unlike Memphis Publishing Company, Texaco did not incur remediation expenses prior to the enactment of the restrictive amendment in 1990. Texaco removed the underground storage tanks in March of 1988. Any release from those tanks therefore occurred before March of 1988. The Act went into effect after their removal on July 1, 1988. The Act was amended in 1990 so that the Fund was not available to releases occurring prior to July 1, 1988. Texaco discovered the release in March of 1991, after the 1990 amendment went into effect. Moreover, Texaco did not incur remediation expenses until after the restrictive amendment went into effect.

Justifiable reliance relates to the making of an obligation “in reliance upon the law then in effect, with consequences that cannot be justly ignored when that law is overruled.” Townsend v. Clover Bottom Hospital and School, 560 S.W.2d 623, 626 (Tenn.1978); see also Robertson County v. Browning-Ferris Industries of Tennessee, Inc., 799 S.W.2d 662, 667 (Tenn.Ct.App.1990) (holding a company did not have a “vested right” on the sole basis of its investment). All of the underground storage tanks were removed and destroyed before the effective date of the Act. Texaco was on notice of the 1990 amendment before it discovered the release. Moreover, Texaco was on notice of the amendment before it incurred the remediation expenses. Therefore, as the Department contends, Texaco did not justifiably rely on the expectation it would be reimbursed from the Fund when it incurred its remediation expenses. Accordingly, Texaco did not have a vested right when it incurred the remediation expenses in 1991 and thereafter.

In Conclusion

The judgment of the trial court is reversed and this matter is remanded for entry of judgment consistent with this opinion. Costs of appeal are assessed against Appellee, Texaco Refining and Marketing, Inc.

      . Texaco entitled its initial pleading as a Petition for Judicial Review of Administrative Decision pursuant to Tenn.Code Ann. 4-5-322. The Chancellor determined the procedure was only applicable to a person aggrieved by a final decision in a contested case and Texaco was not appealing a ruling from a contested case. Thereafter, Texaco amended its petition to seek a declaratory judgment.

      . The chancellor additionally remanded the case to the Division for reconsideration of Texaco’s application for fund eligibility, in accordance with this Memorandum Opinion.

      . There are two other appeals with the same name. The opinion the Chancellor relied on was the first of the three Memphis Publishing opinions.

      . The Supreme Court further explained:
      [W]hen we deny discretionary review, this Court is not necessarily committed to all the views expressed in the opinion of the intermediate appellate court. Meadows v. State, 849 S.W.2d 748, 752 (Tenn.1993); Adams v. State, 547 S.W.2d 553, 556 (Tenn.1977); Street v. Calvert, 541 S.W.2d 576, 587 (Tenn.1976); Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 611, 130 S.W.2d 85, 88 (1939). We discussed in Meadows the practical reasons for this rule.
      This Court’s use of the denial with concurrence in results only designation has been founded upon similar considerations. For example, simply because of the sheer volume of applications for appeal, this Court does not have the ability to grant review and write an opinion in every case in which it disagrees with some portion of the intermediate appellate court decision. In addition, the problematic portion of the intermediate appellate decision is not always raised as an issue by the parties in their applications for review. Occasionally, the issue is raised, but the record is deficient. On other occasions, the troubling rationale of the intermediate appellate court relates to a well-settled area of the law, so there is no need for another decision of this Court. In all these circumstances our ability to deny review with concurrence in results only precludes publication of the intermediate appellate court decision, Pairamore v. Pairamore, 547 S.W.2d 545, 548 (Tenn.1977); see also Rule 4.4, Rules of Tenn. Sup.Ct.

        Memphis Publishing Co. v. Tennessee Petroleum Underground Storage Tank Board, 975 S.W.2d 303, 307 (Tenn.1998).

      . The trial court did not expressly find Memphis Publishing I to be the law of the case relative to the case at bar; however, the holding in Memphis Publishing III was based on the Supreme Court’s finding that Memphis Publishing Company had a vested right due to a ruling in Memphis Publishing I that constituted the law of the Memphis Publishing case.

      . There are limited circumstances which may justify reconsideration of an issue — the law of the case — decided in a prior appeal of the case: “(1) the evidence offered at a trial ... after remand was substantially different from the evidence in the initial proceeding; (2) the prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand; or (3) the prior decision is contrary to a change in the controlling law which has occurred between the first and second appeal, (citations omitted)” Memphis Publishing III, 975 S.W.2d at 306.

      . Though Memphis Publishing I has no prece-dential value, the decision of this court in the first appeal remained controlling as the law of the Memphis Publishing case despite the Supreme Court's denial of review with concurrence in results only. See Memphis Publishing III, 975 S.W.2d at 307 (holding denial of review with concurrence in results only does not abrogate the law of the case effect of that decision.)

      . The Department does not concede eligibility. This argument is asserted in the alternative, if Texaco’s pre-Act release is eligible for fund reimbursement.

      . See also the companion case of Christian v. Tennessee Petroleum Underground Storage Tank Board, 1995 WL 241331 (Tenn.Ct.App. April 26, 1995).


author: D. MICHAEL SWINEY, J., SHARON G. LEE,

text:
    Carol Bracken ORTEN v. Thaddeus Charles ORTEN.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    July 13, 2005 Session.
    Aug. 26, 2005.
    Permission to Appeal Denied by Supreme Court Feb. 6, 2006.

      Joe R. Judkins, Wartburg, Tennessee, for the Appellant Thaddeus Charles Orten.
    Virginia A. Schwamm and Donna H. Smith, Knoxville, Tennessee, for the Ap-pellee Carol Bracken Orten.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., joined. SHARON G. LEE, J., filed a dissenting opinion.

Carol Bracken Orten (“Wife”) sued Thaddeus Charles Orten (“Husband”) for a divorce. During the course of discovery, Husband refused to provide certain financial information as he felt the information to be irrelevant. After Husband failed to appear without explanation at the second Trial Management Conference, the Trial Court entered a default judgment against Husband as a sanction for his actions. Husband’s attorney immediately withdrew from the case and the Trial Court then proceeded to distribute the marital property and award Wife alimony and child support based solely on Wife’s uncontested testimony. Husband secured new counsel and filed a motion to alter or amend the judgment, or for a new trial. The Trial Court denied Husband’s motion and this appeal followed. We affirm.

Background

On October 30, 2003, Wife filed a complaint for divorce seeking dissolution of her twenty-three year marriage to Husband. As grounds for divorce, Wife alleged Husband was guilty of inappropriate marital conduct and/or cruel and inhuman treatment. In the alternative, Wife claimed that irreconcilable differences had arisen between the parties. The parties have four children, two of whom are minors.

Husband’s attorney, Robert Wilkinson (‘Wilkinson”) entered an appearance on December 31, 2003, and Husband formally answered the complaint on March 18, 2004. In Husband’s answer, he denied engaging-in inappropriate marital conduct or that grounds for divorce otherwise existed.

In April of 2004, Wife filed a motion to compel claiming Husband’s responses to Interrogatories and Requests for Production of Documents were past due as they were two days late. A couple of weeks after the motion to compel was filed, the Trial Court entered a Trial Management Order. As pertinent to this appeal, the Trial Management Order provided as follows, with all emphasis being in the original:

This is set for contested trial July 21, 2004. A trial managemenVsettlement conference will be held on April 19, 2004, at 9:00 a.m. Both counsel and both parties must be present in open court for the trial management!settlement conference. There is no exception to this mandatory appearance by all four persons, other than full resolution of all issues, already reduced to a final order taxiny costs, approved by all counsel, and presented by one attorney with his/her client on or before the day and time scheduled for the trial man-ayement.
Pursuant to Rule 55 TRCP, notice is herewith given that a default judgment may be pronounced against a party failing to comply with a trial management order. See TRCP Rules 16.06 and 37.02 for other consequences.

The Trial Management Order then detailed the matters that would be addressed at the management/settlement conference and what the parties and their attorneys were expected to accomplish before the conference.

On April 16, 2004, the Trial Court entered an Interim Order agreed to by the parties. The Interim Order required Husband to vacate the marital residence within thirty days. This order also set forth which of the marital bills each party would be responsible for paying until the trial took place. Husband’s child support payments were set at $813 per month and his co-parenting time with the children also was established.

The first Trial Management Conference took place as scheduled on April 19, 2004, with both parties and their attorneys in attendance. Following the Trial Management Conference, the Trial Court entered an order requiring Husband to respond to Wife’s discovery requests by April 30, 2004. Any further discovery requests had to be submitted no later than May 15, 2004, and discovery depositions had to be completed by June 30, 2004. The Trial Court previously had entered an order requiring the parties to submit their dispute to mediation, and the order entered following the Trial Management Conference stated that the parties had selected a mediator. Finally, a second Trial Management Conference was scheduled for June 28, 2004. The July 21, 2004 trial date remained unchanged.

Husband failed to appear at the second Trial Management Conference on June 28. Wilkinson was present but was unable to offer the Trial Court any explanation for his client’s unexplained absence. The Trial Court noted that pursuant to Tenn. R. Civ. P. 16.06, if a party fails to obey a scheduling or pre-trial order, then the Trial Court, upon motion or the Trial Court’s own initiative, can make such orders as provided for in Tenn. R. Civ. P. 37.02. Wife’s attorney made such a motion, which the Trial Court granted by entering a default judgment against Husband. After granting the default against Husband, the Trial Court stated that Wife would be allowed to testify regarding distribution of the marital property and her request for alimony, etc., and Husband would be allowed only to cross-examine Wife and could not put on any direct proof on these issues. After the Trial Court explained how the case would proceed, Wilkinson orally moved to withdraw from representing Husband. The Trial Court granted the motion stating:

Mr. Wilkinson prays for withdrawal and the same is allowed. That would then mean, Mr. Wilkinson, from this point forward there will be no cross-examination and [Wife’s attorney] will prepare the decree.... There being no cross-examination, then, we can take the wife’s proof ....

Husband’s attorney presumably left the courtroom and then Wife was called to testify. Following the hearing, the Trial Court entered a Final Judgment of Divorce. In summary, the Final Judgment stated that Husband had sufficient notice of the second Trial Management Conference and was not present, that Husband had stated he would not comply with written discovery requests seeking documentation of financial accounts, including credit card accounts, and that a judgment by default was being entered against Husband. Accordingly, the Trial Court granted Wife a divorce based on her unrefuted testimony as to her grounds for divorce. The Trial Court found Wife could not be rehabilitated and established Husband’s alimony payment at $25 per month while he was paying child support for both minor children, $325 per month when the next oldest minor child became emancipated, and $1,000 per month when Husband’s child support obligation ceased altogether. The Trial Court awarded Wife 60% of the equity in the marital residence, which equaled $30,000. Husband was awarded the remaining 40%. The Trial Court equally divided Husband’s retirement account. Wife was awarded a 2000 GMC Safari Van and Husband was awarded a 2004 Volkswagen. Each party was awarded the personal property in their possession.

With regard to the marital debts, Husband was required to pay all of the following: (1) $1,700 on the Bank of America Visa, (2) $5,000 on the Chase Visa, (3) $6,000 on the Discover Card; and (4) the $6,000 in remaining debt on a piano purchased by the parties. The Trial Court ordered Husband to pay approximately $10,000 of Wife’s credit card debt as attorney fees awarded to Wife. Wife was ordered to pay a total of $1,106.64 in credit card debt.

Husband immediately obtained new counsel and filed a motion to alter or amend or, in the alternative, motion for new trial. In this motion, Husband claimed he simply forgot about the Trial Management Conference scheduled on June 28, 2004, although he admitted receiving the order setting the second conference for that date. Husband claimed that had his attorney, Wilkinson, simply reminded him of the conference or called him that morning, he would have been present. A hearing was held on Husband’s motion and Husband testified at the hearing. In summary, Husband testified consistent with the points raised in the motion for new trial and further pointed out that he was present for all other necessary events during the course of the proceedings. Since Husband tried to cast partial blame on Wilkinson for his alleged failure to keep Husband properly apprised, the Trial Court reserved ruling on Husband’s motion until Wilkinson’s testimony could be obtained. Wilkinson’s deposition was taken and he testified, among other things, that he discussed the scheduled second Trial Management Conference with opposing counsel at Husband’s deposition just three days before the second conference on June 28, 2004. This conversation took place while Husband was in the “same room.” Again, we note there is no question that Husband received a copy of the order scheduling the second Trial Management Conference.

After considering Husband’s and Wilkinson’s testimony, the Trial Court denied Husband’s motion to alter or amend or for a new trial. The Trial Court acknowledged that default judgments are not favored under the law. However, the Trial Court also stated that notice to Husband of the second Trial Management Conference was “absolutely clear.” According to the Trial Court:

[Husband’s] nonappearance for Trial Management is very much of a piece with his earlier behavior in the case: obstructive; in some cases, defiant; delaying; not complying with discovery. And this nonappearance on Trial Management day, 6/28/04, would constitute a further act, if you will, of passive aggression. I’m just not going to be a part of it. I oppose it.
[Husband stated he] simply forgot, but Page 25 of Mr. Wilkinson’s deposition shows the unlikelihood that ... [Husband’s] account or suggestion is credible.

Husband appeals raising only two issues. First, Husband claims the Trial Court erred when it entered a default judgment against him based on his failure to appear at the Trial Management Conference. In the alternative, Husband argues the Trial Court erred when it failed to grant his motion to alter or amend or for a new trial.

Discussion

The factual findings of the Trial Court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

Tenn. R. Civ. P. 16.06 provides as follows:

16.06. Sanctions. — If a party or party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of .a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37.02. In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney’s fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

Tenn. R. Civ. P. 87.02 sets forth various types of orders that can be entered by a trial court in response to a party’s failure to comply with certain orders. These include:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust, (emphasis added)

The issue of whether the entry of a default judgment against Husband was too severe necessarily requires us to examine why the Trial Court believed such a sanction was justified. In short, the Trial Court did not believe Husband’s account that he inadvertently forgot about the scheduled Trial Management Conference. Instead, the Trial Court concluded Husband’s nonappearance was part of his “obstructive” and “defiant” behavior which had been exhibited throughout the course of the proceedings. Whether Husband’s nonappearance was due to his being obstructive and defiant, or whether it was due to inadvertent oversight as Husband claims, was a question of fact to be determined by the Trial Court after considering all relevant proof. In Wells v. Tennessee Bd. of Regents, our Supreme Court observed:

Unlike appellate courts, trial courts are able to observe witnesses as they testify and to assess their demeanor, which best situates trial judges to evaluate witness credibility. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn.1990); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.Ct.App.1991). Thus, trial courts are in the most favorable position to resolve factual disputes hinging on credibility determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn.1989); Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn.Ct.App.1998). Accordingly, appellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn.1987); Bingham v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn.1978).

Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999).

After reviewing the proof, we are unable to conclude the evidence preponderates against the Trial Court’s factual conclusion regarding the underlying reason Husband failed to appear at the Trial Management Conference. The issue then becomes whether a default judgment can be an appropriate sanction when a party intentionally fails to appear at a trial management conference because they are being obstructive and defiant.

March v. Levine, 115 S.W.3d 892 (Tenn.Ct.App.2003), involved a wrongful death action where the trial court entered a default judgment against Perry March (“March”) after he refused to return to Nashville for a deposition after being ordered by the court to do so. March did offer to give a telephonic deposition or to submit to a deposition in Mexico. The trial court entered the default judgment against March as a sanction pursuant to Tenn. R. Civ. P. 37.02(C). After the default judgment was entered, a jury assessed $113,500,000 in damages against March. In reversing the entry of the default judgment, we stated:

Default judgments in general should be set aside if reasonable doubt exists as to the conduct 'of the defaulting party. Tennessee State Bank v. Lay, 609 S.W.2d 525 (Tenn.Ct.App.1980); Nelson v. Simpson, 826 S.W.2d 483 (Tenn.Ct.App.1991). This rule must be balanced against the rule that the trial judge may be reversed on the imposition of sanctions only by an affirmative showing of an abuse of discretion. Brooks v. United Uniform Co., 682 S.W.2d 913 (Tenn.1984).... Considering the conduct of Mr. March subsequent to the filing of the wrongful death action, the imposition of a default judgment is simply too drastic a sanction for his behavior. Throughout this entire proceeding, Perry March has not been the only transgressor. The Levines, in their zeal to sustain their position and to punish Perry March for what they sincerely believe to be the murder of their daughter, have contributed greatly to the problems in this case. This Court recognizes the patience and fortitude of the learned trial judge in trying his best to control this litigation, preserve the absentee estate, and maintain the integrity of his court in the face of nearly insurmountable challenges.

Id. at 913.

In Yearwood, Johnson, Stanton & Crabtree, Inc. v. Foxland Development Venture, 828 S.W.2d 412 (Tenn.Ct.App.1991), we upheld a trial court’s entry of a default judgment against the defendant pursuant to Rule 37.02. We stated:

The propriety of the judge’s action depends, in part, on whether he was correct in granting the default in the first place. We think he was — on two separate grounds. First, Rule 37.02(C), Tenn. R. Civ. P., authorizes a trial judge to enter a default judgment for the defendant’s failure to comply with discovery orders. Second, the defendants did not get new counsel within the time allowed and did not answer the plaintiffs amended complaint.

Id. at 413-14. See also Hodges v. Att’y General, 43 S.W.3d 918, 921 (Tenn.Ct.App.2000)(“Trial courts possess inherent, common-law authority to control their dockets and the proceedings in their courts. Their authority is quite broad and includes the express authority to dismiss cases for failure to prosecute or to comply with the Tennessee Rules of Civil Procedure or the orders of the court.”).

The foregoing makes clear that the Trial Court had discretion regarding if and how to sanction Husband for his improper conduct. We likewise review the Trial Court’s denial of Husband’s motion to alter or amend or for a new trial pursuant to an abuse of discretion standard. See Robinson v. Currey, 153 S.W.3d 32, 38 (Tenn.Ct.App.2004) (“We review a trial court’s denial of a Tenn. R. Civ. P. 59.04 motion to alter or amend a judgment for abuse of discretion.”)(quoting Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn.Ct.App.2003)). After reviewing the entire record and giving credence to the Trial Court’s factual findings, we are unable to conclude that the Trial Court abused its discretion when it entered a default judgment against Husband, or that it abused its discretion when it denied Husband’s Rule 59 motion to alter or amend or for a new trial.

Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Court for collection of the costs below. Costs on appeal are assessed against the Appellant, Thaddeus Charles Orten, and his surety.

SHARON G. LEE, J., filed a dissenting opinion.

SHARON G. LEE,

dissenting.

I respectfully dissent from the majority opinion. I would hold that the trial court erred in not setting aside the entry of the default judgment against Mr. Orten. In my judgment the evidence supports the conclusion that Mr. Orten did not intentionally fail to appear at the second Trial Management Conference, but simply forgot to appear. Entry of a default judgment against Mr. Orten is too drastic a measure in this case.

A review of the evidence indicates that Ms. Orten filed for divorce on October 30, 2003; Mr. Orten answered and denied that grounds for divorce existed. On February 27, 2004, Ms. Orten sent Mr. Orten interrogatories and a request for production of documents. The discovery requests are not in the record, but from statements in Mr. Orten’s deposition, it appears that among other things, records requested included cancelled checks and credit card statements for the past five years. On April 2, 2004, when Mr. Orten’s answers were two days late, Ms. Orten filed a motion to compel responses to the interrogatories and request for production of documents. There was no hearing date set for this motion.

On April 15, 2004, a Trial Management Order was entered setting a Trial Management Conference for April 19, 2004, and setting the case for trial on July 21, 2004. This order included the language noted by the majority that both counsel and parties must be present in open court.

On April 16, 2004, an Interim Order was entered, upon motion of Ms. Orten and the agreement of the parties, which, inter alia, ordered Mr. Orten to move out of the marital residence within 30 days.

On April 19, 2004, Mr. Orten appeared at the first Trial Management Conference. On that same date, the parties filed a joint property and debt listing as required by court rules. On that same date, April 19, 2004, a second Trial Management Order was entered which set a second Trial Management Conference for June 28, 2004, and left unchanged the trial date of July 21, 2004. This order also contained the mandatory appearance language of the first Trial Management Order. Also on April 19, 2004, an order was entered which required the parties to attend mediation.

On April 30, 2004, an order was entered from the first Trial Management Conference which provided, inter alia, that the trial date was still set for July 21, 2004, and ordered Mr. Orten to produce requested discovery to Ms. Orten by April 30, 2004. This order also set the date for the second Trial Management Conference for June 28, 2004, but, unlike the previous Order, it did not contain the mandatory attendance language.

Mr. Orten appeared at a discovery deposition on Friday, June 25, 2004, where he was deposed by Ms. Orten’s attorney.

On Monday, June 28, 2004, the trial court commenced the second Trial Management Conference, but Mr. Orten was not present. His counsel advised the trial court:

We did have depositions on Friday and in the course of agreeing to continue those depositions until a subsequent date, I have to assume, without having spoken to my client, I have to assume that must have caused some confusion in his mind. But I have no idea, your honor.
We have sent correspondence to him. He has indicated in the past he has not received all that correspondence. It has not come back to us. So I know that I have sent him notices with respect to today’s hearing, but as I have indicated, perhaps as a result of some confusion as a result of continuing the depositions, I can only imagine. Clearly this matter was set for today.

Ms. Orten’s counsel requested that a default judgment issue against Mr. Orten. Mr. Orten’s counsel requested the trial court issue sanctions against Mr. Orten rather than a default judgment. The trial court responded: “It is a severe blow to the husband’s case, but it is one he has brought upon himself. So motion denied. I am sorry.” The trial court awarded Ms. Orten a default judgment based on Mr. Orten’s failure to attend the conference and his failure to comply with discovery requests. The trial court allowed Mr. Or-ten’s counsel to withdraw from representation of Mr. Orten, and allowed Ms. Orten to present her case, in the absence of Mr. Orten and without counsel for Mr. Orten. On July 26, 2004, Mr. Orten’s new attorney entered an appearance in the case.

Subsequently, an order was entered from the June 28, 2004 hearing which, inter alia, granted Ms. Orten a divorce, divided the marital estate, approved Ms. Orten’s parenting plan, and awarded Ms. Orten alimony until her death or remarriage.

Mr. Orten filed a motion to alter or amend or, in the alternative, for a new trial. The trial court denied the motion finding that Mr. Orten was given “clear, complete and repeated” notice of the trial management proceeding and that Mr. Or-ten’s nonappearance was consistent with his “obstructive and defiant behavior throughout the case and constitutes a further act of passive aggression.”

At the hearing on Mr. Orten’s motion, Mr. Orten testified that except for the second Trial Management Conference, he had attended every scheduled divorce event — the discovery deposition, the mediation session, and the first Trial Management Conference. He did not attend the second Trial Management Conference because he forgot it was set that day. He explained to the trial court that had he remembered the hearing was set, he would have attended; that had his lawyer reminded him of the hearing, he would have been there. For all his other required appearances, his lawyer had reminded him to be there before the scheduled date. He did not recall hearing any discussion about the Trial Management Conference at the deposition. As he was leaving the deposition, his lawyer told him he would call him to remind him of the date they were getting together, but he did not receive a call that weekend.

Mr. Orten admitted that he received the Trial Management Order regarding the June 28, 2004 conference, but that it was in “stuff boxed up to move” which remained in boxes after he moved from the marital residence. He did not have the conference date written on a calendar anywhere.

Mr. Orten’s discovery deposition, which was admitted into evidence, does not reveal any discussions about the upcoming second Trial Management Conference. In the deposition, Mr. Orten testified that he had not actually received the interrogatories or request for documents but had reviewed them at his lawyer’s office with his lawyer’s secretary. The discovery requests are not in the record, but it appears from questions asked of Mr. Orten in his deposition that he was asked to provide cancelled checks, check registers, check stubs, deposit slips, debit or credit memo-randa, transaction advances and bank statements for all bank accounts he had any involvement with for the last five years. Mr. Orten did not bring these records to the deposition as requested by wife’s counsel. He told her he had previously told his attorney that he did not keep those records more than a couple of months. The records involved a joint account to which the wife had access and Mr. Orten’s separate account. Later in the deposition, Mr. Orten agreed that he would provide eighteen months of bank statements. When asked for five years of monthly credit card statements for Chase, Bank of America and Discover statements, Mr. Orten said he would bring the current statements but, “I am not going to go back that many years ... there is no need to.” The deposition continued on other matters and at the conclusion, wife’s counsel stated that the deposition of Mr. Orten was being suspended and would be finished at a later date. She stated “if we could have those documents we asked for by the next time, it would really be helpful.” Thereupon the deposition was concluded on Friday, June 25, 2005 to be completed at a date to be scheduled.

Mr. Orten’s former lawyer, Mr. Wilkerson, testified by deposition that Mr. Orten had appeared at every other scheduled event in the divorce litigation — the mediation, the first Trial Management Conference on April 19, 2005, the discovery deposition on June 25, 2004, and his office appointments. When Mr. Orten did not appear at the second Trial Management Conference, Mr. Wilkerson had his secretary attempt to call Mr. Orten, but she was not able to reach him. Mr. Wilkerson testified:

I think Thaddeus was having a difficult time for the entire process of the divorce itself, a divorce he did not want, the process of going through and identifying properties and pay out sums of money over which he had no control, and I think that the deposition was very difficult for him. So, I see where he may have forgotten that he was required to appear on Monday, the 28th.

Mr. Orten never gave any indication to Mr. Wilkerson on Friday at the deposition that he would not appear on Monday. It is Mr. Wilkerson’s policy to have his office call the day before to remind clients of appointments and court hearings. In this case, Mr. Wilkerson testified that he would have been surprised if this was done because of the depositions they were involved in on Friday. As to the discussion on Friday about the second Trial Management Conference on Monday, Mr. Wilkerson testified:

Q: Did you directly have a discussion with Mr. Orten on June the 25, 2004 about the court date, that is the Trial Management Conference on the following Monday, June the 28th?
A: I cannot say that I specifically told him or reminded him that on Monday, we were to be in court. I know there had been some discussion prior to the deposition, a discussion between Donna Smith and me, talking abut the Trial Management Conference. Mr. Orten was not a part of that discussion, although he was in the same room. After the deposition, I think we talked a little bit about the deposition. I don’t remember specifically saying, “Don’t forget, we’ll be together first thing Monday morning.” I just don’t remember saying that.

Mr. Wilkerson also testified that in his opinion, Mr. Orten had a colorable defense to the alimony issue which Mr. Wilkerson deemed the most significant issue in the case.

Based upon this proof, I think it is more likely than not that Mr. Orten simply forgot to appear at the second trial management conference. Upon his wife’s filing of the divorce action, he retained an attorney, filed an answer, attended a mediation session, attended a deposition, attended the first Trial Management Conference, met with his lawyer in his office to discuss the case, and filed the inquired joint list of property and debts. In short, he made every required appearance, except the second Trial Management Conference. I am not condoning in any sense Mr. Orten’s failure to appear at the conference. Clearly, he should have followed the trial court’s rules. The trial court has the difficult task of maintaining its docket so that justice is dispensed as efficiently and effectively as possible. However, given the circumstances in this case, that Mr. Orten made every other required appearance, that he was required to move from the marital home about the time he received the Order containing the date of the conference, that the order was packed in a box, that he did not have the conference date on his calendar, that he was not reminded to attend by his attorney as he had been previously for court hearings and events, and that his lawyer did not recall discussing it with him or reminding him about the conference on the Friday during depositions — it is more likely than not that he simply forgot to attend. Mr, Orten’s testimony was corroborated by the testimony of his former lawyer whose credibility and veracity were not impeached. I am not persuaded that Mr. Orten knew about the conference because his lawyer and his wife’s lawyer were discussing it in the same room prior to Mr. Orten’s deposition. Mr. Orten is not a lawyer and this was his first deposition. Under those circumstances, Mr. Or-ten should not be credited with hearing and comprehending conversations to which he was not a direct participant. It is very unfortunate that Mr. Orten did not attend the conference, but it should not be fatal to the defense of his divorce action. The action of entering a default judgment was too drastic in this case. The trial court had other less severe options which included, but were not limited to, rescheduling the conference with wife’s attorney’s fees assessed to Mr. Orten or proceeding with the conference in Mr. Orten’s absence. Had the trial court done so, the matter very likely would have proceeded to trial on the merits with both parties having their day in court on July 21, 2004 — less than a month later. It appears that the trial court, in denying the motion to set aside the default judgment, considered whether Mr. Orten had notice of the conference, whether Mr. Orten’s failure to appear was willful, and Mr. Orten’s failure to respond to discovery requests. It does not appear that the trial court considered whether setting aside the default would prejudice Ms. Orten and whether Mr. Or-ten had a meritorious defense.

Mr. Orten made a mistake when he refused to produce credit card records and bank statements as requested by wife’s counsel. It is more likely than not that Mr. Orten did not have five years or even eighteen months of these records in his possession. Clearly he should have started the process of procuring these records or filed a motion seeking relief from the trial court if the request was too burdensome. Simply refusing to provide the records was not in compliance with the rules and certainly, was not a wise course of action for Mr. Orten. It should be noted that there was never a petition for contempt filed against Mr. Orten for not producing the records. By the end of the deposition, he did agree to produce the bank records and counsel agreed to schedule a time to continue the deposition of Mr. Orten. The deposition ended harmoniously. The evidence preponderates against the trial court’s conclusion that Mr. Or-ten’s conduct reached the level of “obstructive and defiant behavior throughout the case” as described by the trial court.

Tenn. Rule Civ. P. 55.02 provides that “for good cause shown the court may set aside a judgment by default in accordance with Rule 60.02.” Tenn. Rule Civ. P. 60.02 provides that the court may relieve a party from a final judgment for several enumerated reasons including mistake, inadvertence, surprise or excusable neglect, or any other reason justifying a relief from the operation of the judgment. Tenn. Rule Civ. P. 60 is aimed at striking a balance between the competing interests of justice and finality. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 231 (Tenn.Ct.App.2000). The interests of justice are best served when lawsuits are resolved on them merits after trial. Akers v. Bonifasi, 629 F.Supp. 1212 (M.D.Tenn.1984). Tenn. Rule Civ. P. 60 is construed with liberality to afford relief from a default judgment. Tennessee Department of Human Services v. Barbee, 689 S.W.2d 863, 867 (Tenn.1985). Default judgments should be set aside if reasonable doubt exists as to the conduct of the defaulting party. Nelson v. Simpson, 826 S.W.2d 483, 485-486 (Tenn.Ct.App.1991), March v. Levine, 115 S.W.3d 892, 913 (Tenn.Ct.App.2003). If there is any doubt about whether a default judgment should be set aside, the court should exercise its discretion in favor of granting relief to allow the case to be decided on its merits. Keck v. Nationwide Sys., 499 S.W.2d 266, 267 (Tenn.Ct.App.1973), Reynolds v. Battles, 108 S.W.3d 249, 251 (Tenn.Ct.App.2003), Tennessee State Bank v. Lay, 609 S.W.2d 525, 527 (Tenn.Ct.App.1980). Whether entry of a default should be set aside is a matter committed to the discretion of the trial court and involves consideration of these factors: (1) whether the default was the result of wilful conduct by the defaulting party; (2) whether the non-defaulting party would be prejudiced if the entry of default were set aside; and (3) whether the defaulting party has shown a meritorious defense. Tennessee Department of Human Services v. Barbee, at 866, Reynolds v. Battles, at 251. Judgment by default for failure to obey an order to provide discovery is an extreme sanction. March v. Levine, at 912.

After reviewing the record, I conclude that the evidence preponderates in favor of the conclusion that Mr. Orten’s conduct was not willful; that Mr. Orten had a meritorious defense; and that setting aside the default judgment would not unduly prejudice Ms. Orten. Further, I conclude that the trial court abused its discretion in not setting aside the default judgment because it failed to consider the requisite factors which are the willfulness of the conduct, the effect of setting aside the default judgment on the non-defaulting party and whether the defaulting party had a meritorious defense. The record supports the conclusion that Ms. Orten would not have been prejudiced by proving her case on the merits rather than winning by default. The record supports the conclusion that these parties would have been better served with a trial on the merits rather than a default judgment at a trial management conference. For these reasons, I would reverse the decision of the trial court and remand for a trial on the merits.

      . In Husband’s deposition, he boldly refused to provide certain financial information claiming, in his opinion, that the requested information was not relevant.

      . Husband does not raise in his brief any issues regarding the propriety of the marital property distribution or award of alimony.

      . Tenn. R. Civ. P. 37.02(C) specifically permits entry of a default judgment under specified circumstances. Contrary to Husband's argument on appeal, the present case in no way involves the entry of default judgment pursuant to Tenn. R. Civ. P. 55, which authorizes the entry of a default judgment when a party fails to plead or otherwise defend an action as set forth in the applicable rules.

      . As an alternative argument on appeal, Husband argues that he is entitled to relief from the judgment pursuant to Tenn. R. Civ. P. 60.02. Husband’s motion to alter or amend or for a new trial was filed before the Trial Court's judgment became final. Therefore, it is a motion which was timely filed pursuant to Tenn. R. Civ. P. 59.02 and/or 59.04. Because the judgment had not become final, the provisions of Tenn. R. Civ. P. 60.02 are not implicated because that Rule governs how a party can obtain relief from a final judgment.