# FILED July 9, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk Pig Im provem ent Co., Inc. fo r the use a nd ) Appeal N o. benefit of Continen tal Casual ty Co., ) 01-A-01- 9610-CV- 00478 Plaintiff /Appella nt, ) v. ) Docket N o. Curt Reaver and Richard Alan ) 96C1459 Tracey, Jr., ) Defenda nts/Appell ees. )



### COURT O F APPEALS OF TENNESSEE MIDDLE SECTION AT NA SHVILLE APPEAL FROM THE CIRCUIT COURT O F DAVIDSON C OUNTY THE HO NORABLE THOMAS W. BROTHE RS, JUDG E

JOSEPH P. RUSNAK Tune, Entrekin & White, P. C. 21st Floor, First American Center 315 Deaderick Street Nashville , Tenne ssee 37238 ATTORNEY FOR PLAINTIFF/APPELLANT
BRYAN ESSARY JOE W. EL

LIS II Gideon & Wiseman NationsBa

nk Plaza, Suite 1900 Nashville , Tenne ssee 37219- 1782 ATTORNEYS FOR DEFENDANT/APPELLEE



### VACA TED AND REMA NDED

SAMUEL L. LEWI S, JUDG E2 

## O pini on
This is an appea

l by pla intiff/ap pellant, Pig Im

prove ment C o. , In c., fro m a decision of the Sixth Ci rcuit Co urt for D avidson Count y dism issing Pig Improve ments’s complaint against defendants/appellees, Curt Reaver and Richard Alan Tracey , Jr. T

he facts out of whic h this m atter ar ose are a s follows.
Paul Glen Draper is a

n empl oyee o f Pig Improvem ent. Draper, Richard Alan Trac ey, Jr., and Curt

Reaver were involved in an automobile accident on 22 October 1994. Draper

was act ing in the course

of his em ploym ent at the time of the acc ident. Draper filed a c ompla

int in the Secon d Circuit C ourt for D avidson Count y on 7 Novem ber 1995. He nam

ed Reave r and Tr acey

as defend ants. Re aver fil ed a motion for summ ary judgm

ent, and D raper f

iled a m otion to ame nd his com

plaint to add Pig Improvem

ent as a plainti ff. The Sec ond Circuit granted Reaver' s motio n on 8 April 1996 . Thereafter, Tracey filed a motion for su mmary judgment. The Second Circuit granted Tracey ’s sum mary judgm ent mo tion and denied Draper’ s motio n to amend on 5 June 1996. Draper filed a tim ely notice of appeal as to each order. Pig Impr ovement fi led a com

plaint in the

Sixth Cir

cuit Court

for Dav idson County on 17 April

1996. Pig Improv emen

t name d Reaver

and Tra cey a s defenda

nts. Reaver filed a m otion to dism

iss for failure to state a claim upon which relief c ould be granted. He argued the doctrine o f “pr

ior suit pen ding” prohib ited prose cutionof the case. The Sixt

h Circuit a

greed and granted the

motion to dism iss on 23 Augu st 1996. Pig Improv emen

t filed its notice of a

ppeal on 20 S eptem

ber 1996. Upon the motion of PigImpr ovement andDraper , this cour t consolidat

ed the two appeals f

rom t he Second

Circuit’ s decisions and refus ed to consoli date the appeal from the Sixth C ircuit’ s decision. This cour t heard the

consolidate d appe al on 6 January 1997 and dete

rmine d the Second

Circu it err ed whe n it d enied Draper ’s motion to am end. Spe cifically, thi s court con cluded the trial cour t should have c onsidered substance over form and treat ed the m otion as if i t were a

motio n t o intervene. Finally, this court rem anded the c ase to the S econd Cir cuit with d

irections to enter an order permittin g Pig Improvement to intervene
. Draper v. Reaver , No. 01-3

A-01-9609 -CV-0039 4, slip op. at 7-8 (Tenn. App. 11 Apr. 1997). The appe al from the Sixth C ircuit’ s decision i s now befo re this cou rt.
Reaver filed a m otion to dism

iss the appeal on 18 Octobe r 1996 based

on Pig Improve ment’s failure

to tim elyserve the

notice of a

ppeal on the

clerk of this court. In response, Pig Im

provem ent filed a

“m otion to allow

late-fi led fil ing of notice o f appeal.” This cour

t reserve d judgm

ent on the motions until th e Ten nes see Sup reme Courtdecided Cobb v. Beier . The su prem e court f iled its dec ision on 28 Ap ril 1997 and held: “

We ar e theref ore of the opinionthat this case, a

nd all case s presentl y on appeal in which the clerk of the appellate court was not timely

served a copy

of the notice of appeal , should not be dismissed for f

ailure to comply with Rule 5(a ), T.R.A.P.” Cobb v. Beier , No. 03 -S-01-961 0-CV-001 06, slip op. at 7 (Tenn. 28 April 1997). Thus, R eaver’ s motio n is h er eby de nied and Pi g Impr ovements’ m

otion is hereby granted.
Th e iss ues prese nted by

this appea

l were d ependant on

the outcom

e of the appeal from the Second Circuit’ s judgments. Given our decision in that appeal, the issues presente d by this appeal ar e now m oot. “ The cent

ral questi on in a m

ootness inquiry is whether changes in the circumstances atthe beginnin g of the lit igation have forestalled the need f

or meaningful relief.” McIntyre v. Traughber , 884 S.W .2d 134, 137 (Tenn. App. 1994). Without question, this court’s ruling ordering the Se c ond Circuit to enter a

n order pe

rmit ting Pig Im

provem ent to inter

vene provid ed Pig Impr ovementwith the r

elief it s ought in this c ase. T here is no d o ub t that Pig Impr ovementfiled the present action to a

void the sta

tute of lim

itations in t

he event this court uphel d the Second Circuit’ s ruling denying Draper’s motio n to amend. See Tenn. Code Ann. § 50-6-112(c),(d) (1991). Therefore, it follow s that Rea ver’s m otion to d ismiss is denied a nd Pig Impr ovements’ motion to allow late filing of notice of appeal is granted. The trial court ’s judgment is vacated, and the case is rem anded to Sixth Ci rcuit Cou rt with directions to enter an o rder dismissi ng the case
. McIntyre , 884 S.W .2dat 138. Costs on appeal are taxed to plaintiff/appellant, Pig Improvem ent Co., Inc.

___________________________________ SAMUEL L . LEWIS, JUDGE4

CONCUR:

_______________________________________ BEN H. CANTRELL , JUDGE

_______________________________________ WILL IAM C. KOCH, JR., JUDGE