BELLSOUTH ADVERTISING &                 )
PUBLISHING CORPORATION,                 )
                                        )
      Plaintiff/Appellee,               )
                                        )
                                        )    Davidson Chancery
                                        )    No. 94-1003-III
VS.                                     )
                                        )
                                        )    Appeal No.
                                        )    01-A-01-9505-CH-00213
REUBEN BONILLA and MARCO                )
BONILLA, PARTNERS d/b/a CAR             )
STEREO SHOP and MOBILE PHONE
CENTER,
                                        )
                                        )
                                                                 FILED
                                        )                            Oct. 19, 1995
      Defendants/Appellants.            )
                                                                 Cecil Crowson, Jr.
                                                                  Appellate Court Clerk

                    IN THE COURT OF APPEALS OF TENNESSEE

                            MIDDLE SECTION AT NASHVILLE


        APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

                              AT NASHVILLE, TENNESSEE


                 HONORABLE ROBERT S. BRANDT, CHANCELLOR



Worrick G. Robinson
ADAMS & WHITEAKER
Suite 201
444 James Robertson Parkway
Nashville, Tennessee 37219
ATTORNEY FOR PLAINTIFF/APPELLEE


GRANT C. GLASSFORD
150 Second Avenue North
Suite 300
Nashville, Tennessee 37201-1902
ATTORNEY FOR DEFENDANT/APPELLANT,
REUBEN BONILLA


AFFIRMED AND REMANDED


                                        HENRY F. TODD
                                        PRESIDING JUDGE, MIDDLE SECTION

CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
BELLSOUTH ADVERTISING &                      )
PUBLISHING CORPORATION,                      )
                                             )
       Plaintiff/Appellee,                   )
                                             )
                                             )       Davidson Chancery
                                             )       No. 94-1003-III
VS.                                          )
                                             )
                                             )       Appeal No.
                                             )       01-A-01-9505-CH-00213
REUBEN BONILLA and MARCO                     )
BONILLA, PARTNERS d/b/a CAR                  )
STEREO SHOP and MOBILE PHONE                 )
CENTER,                                      )
                                             )
       Defendants/Appellants.                )

                                          OPINION


       One of the captioned defendants, Reuben Bonilla, has appealed from the judgment of

the Trial Court overruling his motion to set aside a default judgment in favor of the captioned

plaintiff. The notice of appeal states:

                Notice is hereby given that Reuben Bonilla, defendant named
               herein, hereby appeals to the Court of Appeals from the order
               entered in this cause on the 21st day of November, 1994.


       The referenced order reads as follows:

                This action was heard on November 4, 1994, on defendant,
               Reuben Bonilla's, Motion to Not Enter Default Judgment or, in
               the Alternative, to Set Default Judgment Aside, the statements
               of counsel and the record, from which the Court finds that the
               defendant, Reuben Bonilla, failed to file a response to the
               plaintiff's Motion for Default Judgment as required by Local
               Rule §12.04, failed to appear on the hearing date for said
               motion, failed to retain counsel until after the hearing date of
               said motion, and has offered no proof that said failures are the
               result of mistake, inadvertence, or excusable neglect. The
               Court further finds that whether there was misunderstanding or
               miscommunication between attorneys for the parties respecting
               entry of the default judgment order is immaterial and is not
               controlling.

                It is, therefore, Ordered, that the defendant, Reuben Bonilla's,
               Motion Not to Enter Default Judgment or, in the Alternative, to
               Set Default Judgment Aside is DENIED.




                                              -2-
       Appellant presents the following issues:

               I. Whether the Chancery Court erred by not granting
               appellant's motion under Rule 60.02 Tenn.R.Civ.P. to set aside
               the default judgment based on mistake, inadvertence or
               excusable neglect.

               II. Whether the Chancery Court erred by entering a default
               judgment against appellant.


       On April 7, 1994, plaintiff sued Reuben and Marco Bonilla, partners d/b/a Car Stereo

Shop and Mobile Phone Center, for $9,383.52 plus late charges and costs of collection due

for telephone directory advertising pursuant to a contract not exhibited to the complaint.



       On September 23, 1994, plaintiff moved for default judgment against Reuben Bonilla

for failure to timely answer and for entry of partial final judgment as provided by T.R.C.P.

Rule 54.02.



       On October 12, 1994, counsel filed a "Notice of Appearance" on behalf of Reuben

Bonilla.



       On October 14, 1994, defendant filed a "Motion Not to Enter Default Judgment; or in

the Alternative, to Set Aside Default Judgment;" supported by copies of correspondence

between counsel dated October 12, 1994.



       On October 17, 1994, the Trial Court entered an order granting final judgment against

Reuben Bonilla for $12,784.62.



       On November 21, 1994, the Trial Court entered an order overruling the "Motion Not

to Enter Default Judgment or in the Alternative, to Set Default Judgment Aside."



       On December 21, 1994, Reuben Bonilla filed a "Motion to Alter or Amend the Order

entered on November 21, 1994," supported by affidavit of Reuben Bonilla.

                                              -3-
       On December 21, 1994, at 2:19 P.M., Reuben Bonilla filed a "Tendered Answer to

Complaint."



       On the same date, December 21, 1994, at 2:25 P.M., Reuben Bonilla filed a notice of

appeal from the order entered on November 21, 1994.



       On April 28, 1995, the Trial Court entered an order overruling the motion of Reuben

Bonilla to alter or amend.



       T.R.C.P. Rule 55.02 provides:

               Setting Aside Default. - For good cause shown the court may
               set aside a default in accordance with Rule 60.02. (Emphasis
               added.)


       T.R.C.P. Rule 60.02 provides:

               Mistakes - Inadvertence - Excusable Neglect - Fraud, etc. - 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 reasons justifying relief from the operation of
               the judgment. . . .


       The record reflects that the complaint was served upon appellant on April 12, 1994,

but no answer was filed until December 21, 1994, eight months and 9 days after service of

the complaint, 89 days after motion for default, two months after default judgment and one

month after entry of the order overruling the motion to set aside the default, from which order

this appeal is prosecuted.




                                              -4-
           Stated otherwise, the answer was filed on the last day allowed for appeal six minutes

before jurisdiction of the Trial Court was terminated by notice of appeal.



           The record contains no excuse for the failure to file an answer to the complaint at any

time after the "Notice of Appearance of Counsel" on October 12, 1994, and before the entry

of judgment on October 17, 1994.



           The record does indicate a telephone conversation between counsel on October 6,

1994, in which counsel for defendant stated that "he would possibly be representing

defendant" and requested that no action be taken until he advised plaintiff's counsel whether

he would represent plaintiff or not. The affidavit of defendant's counsel asserts and the

affidavit of plaintiff's counsel denies that plaintiff's counsel stated that he would "possibly

strike the motion for default and take no action until further communication from defendant's

counsel." The Trial Court evidently resolved this conflict of testimony adversely to

defendant.



           The record also contains a letter from defense counsel to plaintiff's counsel dated

October 12, 1994, and stating:

                  I will file a responsive pleading promptly.

(The responsive pleading was filed on December 21, 1994.)


           The record also contains a reply from defense counsel dated October 12, 1994,

stating:

                  When we talked on that occasion you told Mr. Robinson and
                  me that you had not made the decision whether to participate in
                  this case and would advise us your decision by 10 o'clock on
                  the following morning, October 7, 1994, the day the plaintiff's
                  motion for default judgment against Reuben Bonilla was
                  scheduled on the 9 o'clock motion docket. Mr. Robinson and I
                  advised you that if you notified us of your participation by 10
                  o'clock on that morning, we would not enter the default
                  judgment. Nothing further was heard from you until your fax
                  mentioned above. Having heard nothing from you, and no
                  response having been made to the motion for default judgment,

                                                 -5-
               on October 11, 1994, we filed the default judgment order,
               default judgment certificate, and affidavit in support of
               application for attorneys' fees with the Clerk. Copies of these
               are enclosed.


       Even though the misunderstanding between counsel might excuse a slight delay in

filing an answer, the October 12, 1994, letter of plaintiff's counsel adequately notified defense

counsel of the necessity of promptly filing an answer as he had promised to do.



       T.R.C.P. Rule 55.01 reads as follows:

               Entry. - When a party against whom a judgment for affirmative
               relief is sought has failed to plead or otherwise defend as
               provided by these rules and that fact is made to appear by
               affidavit or otherwise, judgment by default may be entered as
               follows:

               The party entitled to a judgment by default shall apply to the
               court therefor; but no judgment by default shall be entered
               against an infant or incompetent person unless represented in
               the action by a general guardian, committee, conservator, or
               other such representative who has appeared therein. If the
               party against whom judgment by default is sought has appeared
               in the action, he (or, if appearing by representative, his
               representative) shall be served with written notice of the
               application for judgment at least five (5) days prior to the
               hearing on such application. . . .


       The primary purpose of this rule is to enforce timely response from a defendant.

There is no indication in the record that any appearance was made by or for the defendant

until October 12, 1994, 19 days after the motion for default judgment was filed.



       A defendant who has not appeared in the action is not entitled to notice before default.

Patterson v. Rockwell, Int'l., Tenn. 1984, 665 S.W.2d 96.



       The appearance of counsel on October 12, 1994, did not impose a duty of notice of a

motion previously filed on September 23, 1994. However, the letter of plaintiff's counsel

dated October 12, 1994, was five days notice to defense counsel before the entry of default

judgment on October 17, 1994.



                                               -6-
       The Trial Court did not err in granting default judgment on October 17, 1994, because

at that time, there was no responsive pleading of the defendant before the Court.



       The Trial Court did not err in its order of November 21, 1994, overruling defendant's

motion to set aside the default judgment because, on that date, there was before the Court no

answer or other responsive motion or pleading to form an issue between the parties and no

showing of any acceptable excuse for failure to so respond or legitimate explanation or

excuse for failure to do so.



       The long delayed tender of an answer just six minutes before the Trial Court lost

jurisdiction of the controversy was an unacceptable cure for the previous delay.



       Defendant seeks to have this Court consider evidentiary matter which was not timely

presented to the Trial Court. The gravamen of this effort is the contention that the contract

forming the basis of the subject obligation did not obligate defendant, but a corporation; yet

the tendered evidence includes a copy of the contract which identifies the contracting party as

Car Stereo Shop and MBI Phone Center and is signed Reuben Bonilla. Nothing in this

instrument suggests a corporation or any representative capacity of Reuben Bonilla. No

evidence is offered that the plaintiff was on notice that Reuben Bonilla was signing as agent

rather than as an individual.



       A motion to set aside a default judgment is addressed to the sound discretion of the

Trial Judge. Tenn. Dept. of Human Services v. Barbee, Tenn. 1985, 689 S.W.2d 863.



       Under Rule 60, the burden is upon the moving party to show facts explaining why

such party was justified in failing to avoid the mistake, inadvertence or neglect. Tennessee

State Bank v. Loy, Tenn. App. 1980, 609 S.W.2d 525. This defendant has wholly failed to

demonstrate any acceptable excuse for failure to appear from April 23 until October 12 and



                                              -7-
for failure to respond to the complaint from April 23 until December 21, and has failed to

timely present to the Trial Court satisfactory evidence of a legitimate defense to plaintiff's

suit.



         Appellant complains that a copy of the contract was not attached to the complaint as

required by T.R.C.P. Rule 10.03. This would have been an appropriate subject for a

responsive pleading, but is not a ground for voiding the judgment or for relief under Rule

60.02.



         Appellant next faults the motion for default judgment for its reliance upon T.R.C.P.

Rule 54.02 rather than Rule 55. This technicality does affect the validity of the judgment or

authorize relief under Rule 60.02.



         Appellant also challenges the notice of motion for default for varying from the

verbiage required by local rules. This technicality does not affect the validity of the judgment

or justify relief under Rule 60.02.



         Defendant asserts that no prejudice to plaintiff will result from setting aside the

default. To condone the unjustified failure to properly and timely present a defense would

result in prejudice to the judicial process.



         The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

defendant. The cause is remanded for further proceedings.




                                                -8-
     Affirmed and Remanded.



                                   _______________________________________
                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION



CONCUR:



_____________________________________
SAMUEL L. LEWIS, JUDGE



_____________________________________
BEN H. CANTRELL, JUDGE




                                    -9-
