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Tennessee Farmers Mutual Insurance Co. v. Cobb8/31/2000
seven months to file motions to set aside the default judgment.
The Defendants also contend that the default judgment should have been set aside under Rule 60.02 of the Tennessee Rules of Civil Procedure. Rule 60.02 provides:
On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. Tenn. R. Civ. P. 60.02.
The Defendants argue that they failed to respond to the complaint for declaratory judgment because Dan Cobb thought that the pleadings related to the tort action and believed that his parents would handle it, and the Defendants thought that the attorney for Tennessee Farmers hired to represent them in the tort action would represent them in the declaratory judgment action. The Defendants contend that this amounts to "excusable neglect, mistake or inadvertence" under Rule 60.02 and that the trial court erred in refusing to set aside the default judgment. The Defendants also assert that they had a meritorious defense to the declaratory judgment action, and that the default judgment should have been set aside for this reason.
On appeal of a denial of a motion for relief under Rule 60.02 of the Tennessee Rules of Civil Procedure, the appellate court may reverse the denial of the motion for relief only if the denial amounts to an abuse of discretion. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Hart v. Tourte, 10 S.W.3d 263, 269 (Tenn. Ct. App. 1999). In this case, after a review of the record as a whole, we cannot conclude that the trial court's denial of the Defendants' motions to set aside the default judgment amounted to an abuse of discretion. Therefore, the trial court's denial of the motion to set aside the default is affirmed.
The decision of the trial court is affirmed. Costs are assessed against the Defendant/Appellants, Judy Cobb, Danny Cobb and Dan Cobb, for which execution may issue if necessary.
Page 1 2 Tennessee Personal Injury Attorneys
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