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
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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
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