Adrian Pate v. State

• Court: Court of Appeals of Tennessee
• Decided: December 28, 1998
• Docket: 02A01-9803-BC-00060
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ______________________________________________

ADRIAN PATE, A MINOR, BY AND FROM THE TENNESSEE CLAIMS THROUGH HIS MOTHER AND NEXT COMMISSION, HON. MARTHA FRIEND, MELISSA PATE, B. BRASFIELD, COMMISSIONER

Plaintiff-Appellant, Claims Commission No. 96001645 C.A. No. 02A01-9803-BC-00060 Vs. AFFIRMED

STATE OF TENNESSEE, William B. Raiford, III; Merkel & Cocke of Clarksdale, MS Defendant-Appellee. For Appellant

FILED Beauchamp E. Brogan, General Counsel, Odell Horton, Jr., Associate December 28, 1998 General Counsel, The University of Tennessee Cecil Crowson, Jr. For Appellee ____________________________________________________________________________ Appellate C ourt Clerk

MEMORANDUM OPINION1 ___________________________________________________________________________

CRAWFORD, J.

This is a medical malpractice case that comes to this Court from the Tennessee Claims

Commission. Plaintiff, Adrian Pate, a minor by and through his mother and next friend, Melissa

Pate, appeals the order of the Commission dismissing the case against the State of Tennessee.

The only issue presented for review is whether the Commission abused its discretion in

dismissing claimant’s complaint with prejudice.

Plaintiff filed a notice of claim with the State of Tennessee, Division of Claims

Administration, on June 7, 1996, and it was transferred to the Tennessee Claims Commission

on September 9, 1996. Proceedings before the Commission are conducted pursuant to Tennessee

Rules of Civil Procedure. T.C.A. § 9-7-403 (1992). The State filed its answer on October 21,

1996. The next event reflected in the record is the State’s motion to dismiss pursuant to

Tennessee Rules of Civil Procedure 41.02 for failure to prosecute filed November 17, 1997.

Claimant’s response to the motion to dismiss sets forth no action taken by claimant since the

1 Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) 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 When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. filing of the complaint, nor is there anything in the record to reflect any action taken by the

claimant.

T.C.A. § 9-8-402 (b)(1992) provides in pertinent part: “Any claim upon which no action

is taken by the claimant within one (1) year of the filing date shall be dismissed.”

The record reflects that shortly after the claim was filed, the Claims Commissioner by

letter notified counsel, among other things, of the above-quoted statutory provision.

There simply is nothing in the record before us to indicate that the Commissioner abused

his discretion. When the sanction of dismissal is exercised, the discretionary action by the trial

court will not be disturbed by this Court in the absence of an affirmative showing that the trial

judge abused his discretion. Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. App. 1982).

Accordingly, the order of the Claims Commission is affirmed, and this case is dismissed.

Costs of appeal are assessed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JUDGE