                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    February 2000 Session

   TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. JUDY
              COBB, DANNY COBB, and DAN COBB

                      Appeal from the Chancery Court for Dyer County
                        No. 97-C-401 J. Steven Stafford, Chancellor



                    No. W1999-01729-COA-R3-CV - Filed August 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.

Charles M. Agee, Jr., Dyersburg, Tennessee, for the Appellants, Judy Cobb, Danny Cobb and Dan
Cobb

Jeffrey L. Lay and Gary H. Nichols, Dyersburg, Tennessee for the Appellee, Tennessee Farmers
Mutual Insurance Company
                                  MEMORANDUM OPINION1

        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.




       1
         Rule 10 (Rules of the Court of Appeals of Tennessee). -- (b) Memorandum Opinion. The
Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.

                                                 -2-
        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 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.




                                                 -3-
       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.


                                                 ___________________________________
                                                 HOLLY K. LILLARD, JUDGE




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