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Tennessee Farmers Mutual Insurance Co. v. Cobb8/31/2000
This appeal involves a motion to set aside a default judgment. The trial court entered a default judgment against the defendants based on their failure to respond to the lawsuit. Seven months later, the defendants filed a motion to set aside the default judgment. The trial court denied the motion, and the defendants appealed. We affirm, finding no abuse of discretion in the denial of the motion to set aside the default.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed
Holly K. Lillard, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S. and Alan E. Highers, J., joined.
MEMORANDUM OPINION
Defendant Dan Cobb is the son of Defendants Danny and Judy Cobb. Dan Cobb filed a personal injury lawsuit against his parents after he was injured at his parents' home. Dan Cobb was represented in this lawsuit by Charles M. Agee, Jr. ("Agee"). Danny and Judy Cobb then filed a claim against their insurance company, Plaintiff/Appellee Tennessee Farmers Mutual Insurance Company ("Tennessee Farmers"). Tennessee Farmers denied the claim. On July 23, 1997, Tennessee Farmers filed a complaint for declaratory judgment against Dan Cobb and Danny and Judy Cobb, seeking a declaratory judgment that it owed no benefits to Danny and Judy Cobb as a result of the lawsuit filed against them by their son. Tennessee Farmers was represented in this lawsuit by Jeffrey Lay ("Lay").
On September 10, 1997, Tennessee Farmers filed a motion for default judgment against all of the Defendants, based on the Defendants' failure to respond to the lawsuit. On September 19, 1997, the trial court entered a default judgment and final judgment order against the Defendants. Copies of the default judgment and final judgment order were served on the Defendants.
After learning of the default judgment, Agee contacted Lay. Agee told Lay that he did not represent Dan Cobb in the declaratory judgment action, but was assisting him in the matter. Lay agreed to a November 7, 1997 hearing on a motion to set aside the default judgment. The motion had not yet been filed.
On October 31, 1997, Dan Cobb sent a letter to the trial judge, asking that the default judgment be set aside. A copy was also sent to Lay. Dan Cobb did not file a motion to set aside the default judgment. At the November 7, 1997, hearing Dan Cobb appeared pro se and asked the trial court for a continuance until he could retain counsel. The trial court granted the continuance and instructed him to have his new counsel file the appropriate motion and reschedule the matter for a hearing.
On April 1, 1998, Dan Cobb filed a motion to set aside the default judgment. His parents filed a motion to set aside the default judgment on April 23, 1998. On July 2, 1998, the trial court issued an order denying the Defendants' motions, finding that the Defendants had been properly served with notice of the suit, and concluding that the Defendants' seven-month delay in filing a motion to set aside the judgment was inexcusable neglect.
On appeal, the Defendants argue first that the trial court erred in finding that the Defendants waited seven months to file motions to set aside the default judgment. They point to Dan Cobb's October 31, 1997 letter to the trial court asking that the default judgment be set aside and argue that the letter should be considered a motion, noting that Dan Cobb was representing himself in this action. Regardless, Dan Cobb understood at the court appearance on November 7, 1997 that he was required to file a motion, and failed to do so until April, 1998. We find no error in the trial court's finding that the Defendants waited
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