# FILED
March 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

TERRY ROGERS, ) ) Claimant/Appellant, ) ) Appeal No. ) 01-A-01-9803-BC-00160 VS. ) ) Claims Commission ) No. 102464 STATE OF TENNESSEE, ) ) Defendant/Appellee. )
APPEALED FROM THE TENNESSEE C LAIMS COMMISSION

MIDDLE DIVISION THE HONORABLE W. R. BAKER, COMMISSION ER

HARRY A. WIERSEMA, JR. 422 S. Gay Street Knoxville, Tennessee 37902 Attorney for Claimant/Appell ant JOHN KNOX WALKUP Attorney General & Repor ter MARY G. MOODY Senior Counsel 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Defendant/Appellee

REVERSED AND REMAND ED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J.1 Rule 10(b) of the Rules of t he Court of Appeal s reads as follows: The Court, wi th the concurr ence of alljudges parti cipati ng in the case,may affirm, reverse or mod ify the actions of the tri al court by memorandum opinion when a formal opini on would have no pr ecedential

value. When a case is d ecided by memorandum opinion i t shallbe designated “MEMORAN DUM OPINION,” shall not be published, and s hall not be cit ed or reli ed on for any reason in a subsequent unrelated case. - 2 -



### MEMORANDUM OPI NION 1

This is a dispute over w hether the Claims Commission should have set aside its order to dismiss the claim because an attorney o f record for

the claimant was
no t notified o f the motion to dismiss. We find, however, that the order of dismissal
was not validly entered according to Rul e 58, Tenn. R. Civ. Proc. We, therefore, remand the cause to the Commissio n fo r consideration of the State’s motion to dismiss for failure to prosecute.

On September 27, 1991, MichaelWalker, an attorne y from Jam estown filed a notice of clai m with the Division of Claims Administration on behalf of Terry Rogers. The notice alleged that Mr. Rogers was injured in a bicycle accident because of an unsafe and dangerous condition on a state highway. On January6, 1992 the Division of Claims Admi nistration transferred the c laim to the Claims Commissi on.

At some point, attorneys Harry Wiersema and Michael W alke r filed a “Claim in the Nature of Compl aint” in th e Claims Commission on behalf of Terry Rogers and wife Lisa R ogers. The State filed an answ er on May 4, 1992.

On January 21, 1997 the Commissioner signed an order reli ev ing Michael Walker from further responsibilities i n the case. Mr. Walker signed the order and appr oved it fo r entry.

On December 16, 1997 the State mov ed to dismiss the claim for the failure to pr osecute. The motion contained a certificate that it had been sent to Mr. Rogers. The certificate did not mention Mr. Wiersema nor Mrs. Rogers. On March- 3 -

3, 1998 the Commissio nerdismisse d the clai m. The ce rtificat e on the o rder shows
a copy to the Assistant Att orney General and Mr. Rogers -- not to Mr. Wiersema nor to Mrs. Rogers.

The statutes creat ing t he Cla ims Commission provide that its proceedings “shall be conducted pursuant to Rules of the Tenn essee Rules of Civil Procedure where applicable . . . .” Tenn. Code Ann. § 9-8-403. Rule 58 provides:

Entryof ajudgmentor an order of final dispositi on is effective when a judgment cont aining one of the following is marked on th e face by the clerk as filed for entry: (1) the signatures of the judge and all parties or

counsel, or (2) the signat ures of th e judge and one party or counsel with a certificate o f counsel that a c o py of th e proposed order has been serv ed o

n all other parties or coun sel, or (3) th e signature of the judge and a certific at e of the clerk that a

copy has been served on all other parties or counsel.

In our opinion the order dismiss ing the claim was not val idly entered because it was not signed by all parties or counsel nor did it contain a certi ficate that a copy of the order had been served on all parties or counsel.

We therefore vacate the order dis mis sing the claim and remand the
cau se to the Claims Commission for reconsideration of the m otion to dismiss fo r failure to prosecute. Tax the costs on appeal to the State.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:- 4 -

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE