                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                               June 2000 Session

     VICTORIA ROBBINS v. BILL WOLFENBARGER, D/B/A WOLF’S
                   MOTORS and SAM HORNE

                   Direct Appeal from the Circuit Court for Blount County
                     No. L-11942    Hon. W. Dale Young, Circuit Judge

                                       FILED AUGUST 2, 2000

                                 No. E1999-02012-COA-R3-CV



A default judgment was entered against Horne and the Trial Court subsequently overruled Horne’s
Motion to Set Aside the Default. Horne has appealed. We affirm the judgment of the Trial Court.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY , J., joined.


Hubert D. Patty, Maryville, Tennessee, for appellant Sam Horne.

Linda G. Shown, Alcoa, Tennessee, for appellee Victoria Robbins.




                                             OPINION


              On may 7th, 1999, plaintiff Robbins filed a complaint for damages against
Wolfenbarger and Horne, alleging breach of contract, intentional misrepresentation and negligence,
per se. On August 26, 1999, an Order of Compromise and Dismissal was entered as to
Wolfenbarger individually and d/b/a Wolf Motors.

                 Horne did not file an answer during the time allowed by the Rules of Civil Procedure,
and Robbins filed a motion for default judgment on July 9, 1999. Horne wrote a letter to the
plaintiff’s attorney in response to the complaint and summons, postmarked July 16, 1999. The letter
was forwarded to the Clerk of the Court for filing by plaintiff’s counsel’s letter dated July 30, 1999.
                On August 27, Robbins’ Motion for Default Judgment was heard, but Horne who had
notice did not attend. Default judgment was entered on September 1, 1999.

               Horne then retained counsel and filed a Motion to Set Aside the Default on September
10, 1999, which Motion was heard on October 4, 1999. The Trial Court denied the Motion and set
a date for hearing damages. Thereafter, a full evidentiary hearing on damages was held and a
Judgment for damages in the amount of $1,881.84 plus interest, was entered.

                Horne then filed this appeal.

               Rule 55.02 of the Rules of Civil Procedure provides that “[f]or good cause shown the
court may set aside a default judgment by default in accordance with Rule 60.02.” Rule 60.02
provides, in pertinent part:

                On motion and upon such terms as are just, the court may relieve a party or that
                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. A 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.

                  A party seeking to set aside a default judgment has the burden of demonstrating that
it is entitled to relief. Nelson v. Simpson, 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991); Walker v.
Baker, 738 S.W.2d 194, 196 (Tenn. Ct. App. 1987); Tennessee State Bank v. Lay, 609 S.W.2d 525,
527 (Tenn. Ct. App. 1980). In order to obtain relief, the party must satisfy the court that it is entitled
to relief based on one of the grounds in Tenn.R.Civ.P. 60.02 and that it has a meritorious defense
to the plaintiff’s suit. Patterson v. Rockwell Int’l., 665 S.W.2d 96, 100 (Tenn. 1984); Turner v.
Turner, 739 S.W.2d 779, 780 (Tenn. Ct. App. 1986).

                The setting aside of a default judgment lies within the sound discretion of the trial
court. Tennessee Department of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985).
However, courts should liberally construe 60.02's requirements when a party is seeking relief from
a default judgment. Barbee at 866. The court should also consider whether the movant’s default
was willful or culpable, and examine the extent to which the movant’s conduct has prejudiced the
non-defaulting party. Id. Court’s should grant relief whenever any reasonable doubt exists
concerning whether the default judgment should be set aside. Nelson v. Simpson, 826 S.W.2d 486
(citing Keck v. Nationwide Sys., Inc., 499 S.W.2d 266, 267 (Tenn. Ct. App. 1973)).

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               In this case, the Trial Court granted plaintiff’s Motion for Default based on the fact
that Horne “failed to answer within the time prescribed by law.” Horne received plaintiff’s
summons on May 27, 1999, but as of July 9 Horne had failed to answer or otherwise defend the
complaint, and the Motion for Default was filed at that time. Whether the letter from Horne
constituted an answer or an appearance, the earliest it could have been deemed served was July 16,
1999, about 50 days after Horne had been served with the complaint.

                The language of rule 55.01 makes it clear that a judge, in the exercise of sound
judicial discretion, may enter a default against a party who has failed to plead or otherwise defend
in accordance with the rules, as long as proper notice of hearing on the motion is given. See
Tenn.R.Civ.P. Rule 55.01; Patterson at 100.

               A recent case out of the Middle Section of this Court, considered whether the Trial
Court had abused its discretion in granting a motion for default judgment, where the defendant had
filed his answer minutes before the court’s consideration of the motion. State v. Looper, 2000 WL
354404 (Tenn. Ct. App. April 7, 2000). The defendant argued that even an untimely answer
precludes entry of a default judgment, basing his argument on Tolbert v. Tolbert, 1994 WL 705230
(Tenn. Ct. App. Dec. 15, 1994) and BellSouth Advert. & Publ’g Corp. v. Bonilla, 1995 WL 611283
(Tenn. Ct. App. Oct. 19, 1995). The Court in Looper distinguished those cases and found that the
court had discretion to enter a default judgment where defendant had failed to timely plead or defend
in accordance with the rules.

                 The Court in Wright v. Lindsay, 140 S.W.2d 793 (Tenn. Ct. App. 1940), set forth the
procedure to have a default judgment vacated. A motion to set aside the default should be filed,
supported by a sufficient affidavit excusing the failure to plead, and accompanied by a tender of a
sufficient defense to the action. Id. at 795. Horne completely failed to meet this burden, as he
offered no explanation, pursuant to Rule 60.02 as to the lateness of his letter in response to the
complaint. His entire argument rests on the fact that he did not know that he was to also serve an
answer on the Court, in addition to the plaintiff’s attorney. He contends his response complied with
the language of the summons, but because the summons was defective, he failed to serve his answer
on the Court. The summons did not state that Horne was to serve his answer upon the Court. While
this deficit in the summons may explain, or even excuse, Horne’s failure to serve his answer upon
the Court, it is not responsive, nor does it explain why his service upon the plaintiff’s attorney was
almost a month after the time for filing an answer expired. Moreover, a default judgment will not
be set aside unless the defendant makes a showing of a meritorious defense. Patterson v. Rockwell
Int’l., 665 S.W.2d (Tenn. 1984).

                Horne failed to demonstrate to the Court such a defense, as his Motion simply states
that “the defendant believes that he is not liable to plaintiff to any extent based upon the complaint
filed against him.” In Patterson, the Court held that such conclusory statements do not constitute
an assertion of a meritorious defense required to set aside a default judgment.

               The defendant merely asserts: “The respondent, Rockwell International, believes
               itself to have a good and valid defense to this action.” This is merely a conclusory

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               statement and does not constitute the assertion of a meritorious defense to the
               plaintiff’s claim. Having failed to assert a meritorious defense as a condition to
               seeking relief, the defendant’s effort to set aside the default judgment against it 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. §29-11-105, 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

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               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.




                                                     _________________________
                                                     HERSCHEL PICKENS FRANKS, J.




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