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Robbins v. Wolfenbarger8/2/2000
t must fail. Patterson, 665 S.W.2d at 101.
We hold that because of the failure of the defendant to meet his burden as to why he was entitled to relief, the Trial Court did not abuse its discretion in denying the Motion to Set Aside the Default Judgment.
Additionally, Horne raises several issues as to the propriety of damages awarded against him.
By suffering a default judgment, a defendant impliedly confesses all of the material allegations of facts contained in the complaint, except the amount of the plaintiff's unliquidated damages. Patterson.
The issues involving the alleged "double award" are addressed only superficially in Horne's argument section of his brief. Horne argues that the release of Wolfenbarger acknowledging full satisfaction entitled him to a reduction in any claim against him to the extent paid by Wolfenbarger. However, the release of Wolfenbarger does not state that the judgment had been satisfied. In fact, there is no evidence cited in the record indicating how much plaintiff received in the settlement with Wolfenbarger.
Courts routinely hold that failure to make an appropriate reference to the record and cite relevant authority to the argument section of their brief, as required by Rule 27(a)(7) constitutes a waiver of the issue. See State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 210 (Tenn. Ct. App. 1994). Moreover, an issue is waived where it is simply raised without argument regarding the merits. See Blair v. Badenhope, 940 S.W.2d 575, 576-577 (Tenn. Ct. App. 1996); Bank of Crocket v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App. 1988).
Horne also relies on T.C.A. ยง29-11-105, which states, in pertinent part:
When a release or covenant not to sue or not to enforce judgment is given in good faith to one (1) of two (2) or more persons . . . it does not discharge any of the other tort- feasors from liability . . . but it reduces the claim against the others to the extent of any amount stipulated by the release . . . .
However, this section also provides for procedural requirements, as well:
No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for in jury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release. . . .
There is no indication that Horne filed a motion in the Trial Court for reduction in judgment after the Trial Judge entered a judgment for damages for plaintiff. The issue was not raised below, and we will not consider it on appeal.
For the foregoing reasons, we affirm the judgment of the Trial Court and assess the cost of the appeal to Sam Horne.
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