                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                               July 9, 2001 Session

 HENRY WITT, et ux, v. TENNESSEE FARMERS MUTUAL INSURANCE
                           COMPANY

                 Direct Appeal from the Chancery Court for Bradley County
                         No. 95-303    Hon. Jerri S. Bryant, Judge

                                       FILED AUGUST 15, 2001

                                 No. E2001-00401-COA-R3-CV



The Trial Court refused to grant plaintiffs relief from a Judgment pursuant to Tenn. R. Civ. P. 59 or
60. Defendant has appealed. We affirm the Trial Court.

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


HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY , J., joined.


Richard A. Fisher, Cleveland, Tennessee, for Appellants, Henry Witt and wife, Margaret Witt.

Douglas M. Campbell, Chattanooga, Tennessee, for Appellee, Tennessee Farmers Mutual Insurance
Company.



                                             OPINION


               This is an appeal by the plaintiffs from the Trial Judge’s overruling their Motion for
Relief, pursuant to Rules of Civil Procedure, Rule 59, and/or Rule 60.

                In that Motion, plaintiffs asserted that since the Trial Court did not make findings of
fact and conclusions of law, as timely requested by plaintiffs, the Judgment entered in the case on
March 7, 2000, was not a final judgment. The Motion set forth no other grounds to grant Rule 60
relief, nor was an affidavit filed.
               The record reveals that on the March 1, 2000, the Chancellor dismissed plaintiffs’
case “with prejudice” and taxed the cost to plaintiffs. On April 7, a Notice of Appeal was filed, and
on May 17, 2000, this Court responding to a Motion to Dismiss the appeal, entered an Order reciting
that the Notice of Appeal was filed 31 days after the Judgment was entered, and the Appeal was
dismissed.

              Then on May 30, 2000, plaintiffs filed a Petition for Rehearing of the Order granting
the Motion to Dismiss. This Court, in denying that Motion, stated:

               On May30, 2000, the appellants filed a Petition for Rehearing on the granting of the
               Motion to Dismiss. In their Petition they state that they filed a request for findings
               of fact and conclusions of law pursuant to Tenn. R. Civ. P. 52.01. They aver that at
               the time for filing a notice of appeal was tolled by their Tenn. R. Civ. P. 52.01
               motion. . . . The request for findings of fact and conclusions of law filed pursuant to
               Tenn. R. Civ. P. 52.01 does not toll the time for the filing of a notice of appeal; it is
               not one of the motions referred to in Tenn. R. App. P. 4.

                On the appeal before us, plaintiffs again argue in their brief “that because the request
for findings of fact and conclusions of law was properly and timely made and the March 7, 2000
Order fails to include such findings of fact and conclusions of law, the Judgment is not a final
Judgment.” With due deference to counsel, this Court’s Orders on the first appeal have become the
law of the case as to the finality of the Trial Court’s Judgment. See City of Bristol v. Bostwick, 240
S.W.2d 774, 144 Tenn. 205 (1922).

                While Tenn. R. Civ. P. Rule 60 is mentioned as an alternate ground for relief in
plaintiff’s Motion before the Chancellor, as previously noted, they set forth no grounds for this relief
in their Motion, nor was an affidavit filed establishing a basis for relief. The Supreme Court noted
in Travis v. The City of Murfreesboro, 686 S.W.2d 68 (Tenn. 1985), at p. 69:

                As a prerequisite to the extraordinary relief available under Rule 60.02(1), the
                movant is required to set forth in a motion or petition or in affidavits in support
                thereof, facts explaining why the movant was justified in failing to avoid mistake,
                inadvertence, surprise or neglect. (Citations omitted).

             We affirm the Judgment of the Trial Court in overruling plaintiffs’ Motion, and
remand with costs of the appeal assessed to plaintiffs, Henry and Margaret Witt.




                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS, J.


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