### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on

Brief Ju ly 23, 2002
GLENNA M. GR

ISSOM v. STATE OF TENNESSEE
An Appeal from the Tennessee Claims Comm ission for the Western Dvision No. 20001513 Randy Camp, Commissioner

No. W2001-03021-COA-R3-CV - Filed Dec ember 23, 2002

This is a Claims Commission case that was dismissed for failure to prosecute. I n Ju ly 2000, the claimant filed a la wsuit with t

he Tenne ssee Claims Commission agains t the State

of Tennessee. The Statefiled its answer in October 2000. In September 2001, the State filed a motion to dismiss for failure to prosecute, relying on Tennessee Code Annotated section 9-8-402(b), which pr ovides for dismissal of a cla

im with the Claims Commission if the claimant does not take action to advance the claim for a one-year period, unless the claimant received pr ior written consent from the Commission. In November 2001, the Commission entered an or der granting the State’s motion to dismiss. On appeal, the claimant argues that the one-y ear period should be tolled pending a response to he r complaint by the State. We affirm, f inding that the st

atutory one-y ear per iod beg an to run when the claim was filed. Tenn. R. App. P. 3; Judgment of the Tennessee Claims Comm ission Affirmed

H OLLY K IRBY L ILLARD , J., de liver ed th e opi nion o f the

cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J ., joined. Stephen D. Jackson, Jackson, Tennessee, for the appellant, Glenna M. Grissom Paul G. Summers, Attorney Gene ral and Reporter, Michael E. Moore, Solicitor General, Mary M. Bers, Senior Counsel , Office of the Attorney Ge

neral and Reporter, Nashville, Tennessee, f or the appellee, State of Tennessee
OPINION

On March 30 , 1999, Gle nna M. Gr

issom (“G

rissom”) allege dly

sli pped and

fell while walking on a trai l at Chuca lissa Arc haeolog ical Muse um and Rec onstruct

ed I ndian Vill age. O n July 31, 2000, she fileda complaint with the Tennessee Claims Commission (“Commission”) against the1 Griss om orig inal ly fi led h er cl aim f or damag es wi th t

he Divi sion of Cl aims Admini str ati on on March 28, 2000. The Division notif

ied the parties on June 29, 200 0, that i t was trans ferring the cla im t o the Clai ms Commis sion . Gri ssom then fi led h er compl aint wit h th e Clai ms Commis sion on Jul y 31, 2000. 2 Several documents in the recor d ref er t o int errog ator ies and re quest s f or produ cti on of documents as having been f il ed by t he St ate. These i nter

rogat orie s and r eques ts for production, howeve r, are not cont aine d in t

he re cord. 3 Th e O rder make s refere nce to an untim ely status re por t and re spo nse to the Stat e’s moti on al lege dly fax ed by Gri ssom to the C omm ission o n Oc tobe r 9, 20 01.
-2- Stateof Tennessee (“State”), see ki ng dama

ges for injuries a

lleged ly r esulting from the f

all. 1 On August 31, 2000, the State filed a motion for an extension of time in which to respond to the complain t. The motion

was gr anted. O n Octobe

r 20, 2000 , the State

filed its answer to Grissom’s complaint.

On May 29, 2001, the State sent a letter to Grissom, noting that it had filed a response to her complaint on October 20, 2000, and that interrogatories and requ ests for p roductio n of docu

ments were sent to her on that same date. 2 The letter sought a response to these discovery requests. The record includes no response to this letter.

On September 7, 2001, well over a y ear after the lawsuit was filed, the Commission e r ordered
a written status report from the parties. The order noted that the f i le co ntained no evidence of activity since January 29, 2001, when the Commission sent a procedural letter to both parties. The Commissioner’s order required both parties to respond by October 8, 2001.

In respons e, on Septemb er 14, 20 01, the Sta te filed a motion to dis miss for f ailure to prosecute. The motion was supported by a n affidavit by Mar

y M. Ber s (“Bers”), Senior Counsel with the Office of theAttorney Gene ral for the State, asserting that the State had served discovery request s upon Grissom and that t he discov ery

request s went una

nswere d. The af

fidavit refer red to the May 29, 2001 letter a nd Grissom’s failure to respond. The record does not include Grissom’s response to the State ’s motion to

dismiss. It does, however, include the State’s reply to Grissom’s response, wh ich i ndicates that the only ac tion taken by Grissom since filing her complaint was service of a reply

to the State’s motion to dismiss on October 9, 2001.

On Novembe

r 9, 2001, the Commissi on enter ed an ord er gra nti ng the State ’s motion to dismiss. The order cites Grissom’s failure to take any action to move the case toward disposition
w ithinthe one-ye ar time limit set forth in Tennessee Code Annotated § 9-8-402(b). 3 That stat ut e provides that it is “ mandator y” to dismiss wi

th prejud ice “an y c laim f

iled w ith the cla

ims commission upon which no action is taken by the claimant to adva nce the case to disposition within any one-yea r period.” Tenn. Code Ann. § 9-8-402(b). The Commission notedthat, while there are circumst ances under which section 9-8-402( b) might not apply , none of

those circumstances were present in Grissom ’s case . From thi s order, Grissom no w appea ls.

On appeal, Grissom argues that the time limit in section 9-8-402(b) should have been tolled betweenthe date her

complaint was filed on July 31, 2000, and October 20, 2000, the date on which the State filed its answer. Grissom acknowledges that the statute re quires di smis sal of a c laim in-3-

which the claimant takes no action to advance her case for a one-y

ear period; however, she argues that it was impossible for her to advance her c laim until the Sta te answe red the c omplaint. Therefore, Grissom contends, the one-y ear time period should be tolled during the time in which she could not move her case forward. Grissom further argues that

fairness required the Commissioner to decline to dismiss her claim, and that his dismissal of her claim was an abuse of discretion.

Our standard of review on appeal from a trial court's rulingon a motion to dismiss is de novo, withno presumption of correctness as to the trial court’s leg al conclusions. Stein v. Davidson Hotel Co. , 945 S.W.2d 71 4, 716 (Te nn. 1997) . A trial ju dge ha s conside rable di scretion

to dismiss a

case for failure to pros ecute. Kotil v. Hydra-Sports, Inc., No. 01-A-01-9305-CV-00200, 1994 Tenn. App. LEXIS 551, at *8 (Tenn. Ct. App. Oct. 5, 1994); Tenn. R. Civ. P. 41.02(1). The imposition of sanctions available under Tenn. R. Civ. P. 41.02(1 ) is a discretionary decision. Kotil, 1994 Tenn. App. LEXI S 551, at *10. The appellate court will not disturb such a decision in the absence of an affirmative showing that the trial court acted unreasonably , arbitrarily, or unconscionably. Id.; see also Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. Ct. App. 1982).

Grissomfirst argues that the o ne-y ear time period se t forth in Tennessee Code Annotated § 9-8-402(b) for a claimant

to advanc e his cas e should be tolled during a period in which the

claimant , pursuant to the Ten

nessee R ules of Civil Proced

ure, ca nnot move t

he case forwar d. Under the fac ts of this case, Grissom argue s that th e one-ye ar period should be tolled for a claimant while the claimant awaits the defendant’s an swerto the complaint. Under the clear languag e of the statute, howeve r, unless the claimant has secured the prior written consent of the Commission, if the claimant takes no a

ction toadvance the case during a given one-year

period, dismissal is mandated. Grissomcites no a

uthority to support

her arg ument tha t the plain langua ge of th e statute should be ignored. The record includes no indication that Grissom sought the written consen t of the Commission for her

failure to take any a

ction whatsoever during the year f ollowing the filing of the complain t. Indeed, the r

ecord includes no

explanatio n at all fo

r Grissom ’s inacti on. We must assume that the statutes means what it say s. This argument is without merit.
Next, Grissom argues that the Commission abused its discretion by granting the

State’ s motion to dismiss. Sh

e cites Gadd

v. Stat e of Tennessee, No. E 1998-00016-WC-R3-CV, 2000 Tenn. LEXI S 155 (Tenn. Spec. W orker’s Comp. App. Panel Mar. 24, 2000), aff’d , 2000 Tenn. LEXI S 154 (Ten

n. Mar. 24 , 2002), in

support of her

assertion that the Commissioner may decline to follow sect ion 9-8-402(b) in a case in which fairness would require the Commission to decline to dismiss the

claim. As suming a

rguen do the val

idity of this argument, the facts in this case present
no circumst

ances ju stify

ing Gris som’s asse

rtion that the dismiss al was a

n abuse of

discretion. Grissomoffers no reason for her failure to take so me affir

mative ste

ps to advanc e her cl aim within the one-y ear per iod or toseek consent to a delay from the Commission. In a letter dated January 29, 2001, the Commissioner a dvised Grissom of the statute and reminded Grissom that it was her responsi bility to “take the initiative in the prosecution of this claim.” Further, counsel for the State sent a letter dated May

29, 2001, seeking responses to discovery requests that

were sent October 20, 2000. Finally, the Commissioner sent a request for a status report to both parties, to which Grissom-4-

failedto make a

timely response . Under t

hese circumst ances, w e conclu de that the Commission did not err in dismissing Grissom’s claim for failure to prosecute.

The decision of the Claims Commission is affirmed. Costs on appeal a re asse ssed ag ainst th e a pp el la nt , G le nn a M . G ri ss om , f or wh ic h e xe cu ti on ma y is su e, if ne ce ss ar y.

HOLL Y KIRBY L

IL LARD, JUDGE