Shade T. Underwood, Jr. v. Governor Ned Ray McWherter - Concurring

• Court: Court of Appeals of Tennessee
• Decided: January 5, 1996
• Docket: 01-A-01-9508-CV-00360
• Status: Published

Opinion

SHADE T. UNDERWOOD, JR. ) ) Petitioner/Appellant, ) Appeal No. ) 01-A-01-9508-CV-00360 v. ) ) Davidson Circuit GOVERNOR NED RAY McWHERTER, ) No. 93C-1678 et al, ) ) Respondents/Appellees. )

FILED COURT OF APPEALS OF TENNESSEE Jan. 5, 1996

Cecil Crowson, Jr. MIDDLE SECTION AT NASHVILLE Appellate Court Clerk

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, JUDGE

SHADE T. UNDERWOOD Northeast Correctional Center P. O. Box 5000 Mountain City, Tennessee 37683-5000 PRO SE APPELLANT

CHARLES W. BURSON Attorney General & Reporter

MERRILYN FEIRMAN Assistant Attorney General 500 Charlotte Avenue Nashville, Tennessee 37243-0491 ATTORNEYS FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED SAMUEL L. LEWIS, JUDGE O P I N I O N

This is an appeal by petitioner/appellant, Shade T.

Underwood, Jr., from the trial court's dismissal of his petition

for declaratory judgment and violations of civil rights. The sole

issue presented by petitioner is "[w]hether the trial court

properly dismissed the petition for want of prosecution."

This case commenced when petitioner filed his petition

titled "complaint for declaratory judgment and violations of civil

rights." Petitioner sued respondents in their official capacities

and not in their personal capacities. Because petitioner had

served respondents in their official capacities only, the state

moved for an extension of time in which to answer until petitioner

served all parties in both their official and personal capacities.

Subsequently, petitioner moved to strike respondents' motion for an

extension of time in which to file an answer.

On 28 July 1994, the deputy clerk gave petitioner notice

that the court would dismiss his case unless petitioner obtained an

order within thirty days setting the case for trial or exempting it

from Rule 37.01 of the Local Rules of Practice of the Courts of

Record of Davidson County, Tennessee. On 9 August 1994, petitioner

filed a motion to exempt the case and to set it for trial. In an

order, filed 27 January 1995, the trial court dismissed the

petition for want of prosecution pursuant to Rule 37.02 of the

Local Rules of Practice of the Courts of Record of Davidson County,

Tennessee. On 6 February 1995, petitioner filed his notice of

appeal.

Petitioner filed this case, and it was pending for more than

one year. During this time, petitioner failed to receive specific

2 permission from the court to exempt his case from the one year

rule. Rule 37.01 provides: "All civil cases must be concluded or

set for trial within twelve months from the date of filing unless

the court has directed a shorter or longer period for specific

cases. These standards will be implemented by appropriate orders

from the court." The parties do not dispute the fact that the

instant case was not set for trial within the appropriate time

frame.

On 27 January 1995, the trial court ordered the dismissal

of the petition pursuant to Rule 37.02. That rule provides: "To

expedite cases, the court may take reasonable measures to purge the

docket of old cases. The Presiding Judge, with the concurrence of

the judges or chancellors affected, may make such necessary orders

and take such actions as are required to see that the dockets are

uniformly purged." Because petitioner failed to appropriately

prosecute his case within a timely manner, the trial court properly

dismissed the petition.

Therefore, we are precluded from addressing the merits of

this case as urged by petitioner. The judgment of the trial court

is affirmed, and the costs are assessed to petitioner/appellant.

The cause is remanded to the trial court for any further necessary

proceedings.

__________________________________ SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________ BEN H. CANTRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., JUDGE