### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs,

May 3, 2001 WILLIAM DAVID FOWLER, as surviving parent of DAV ID KEITH FOWLER, deceased, v. RALPH EUGE NE DAVENPORT and JASON RICHARDS Direct Appeal from the Law Court for Washington County No. 16504 Hon. G. Richard Johnson, Chancellor

JUNE 6, 2001 No. E2000-02509-COA-R3-CV

The Trial Court granted defendants summary judgment on the g rounds plaintiff’s action was timebarred. We reverse and remand. Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Law Court Rev ersed.
H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.
Bob McD. Green, Johnson City, Tennessee, for Appellant, William David Fowler. Richard W. P ect ol a nd J ame s T. Bowm an, Joh nso n Ci ty, Tennessee, for Appellees, Ralph Eugene Davenport and Jaso

n Richards.

OPINION

In this action the Trial Court granted defendants summary judgment, and dismissed plaintiff’s action with prejudice. Plaintiff has appealed.

The chronology

of events in this ca

se are as follows : The Complaint was file

d on A ugust 12, 1994, and defendants filed an Answer on October 12, 1994. The Trial Court entered an

Order on March 2

3, 1995, reciting

that the case wou

ld be continued until the defe ndant, Ralph Davenport’s release from incarceration. Then, on September 24, 1996, the case was dismissed, the Court noting that the defendants did not appear for a docket setting. On October 24, 1996, plaintiff moved to r

einstate the case to the docket. That Motion was-2-

dismissed on March 2, 1998. Plaintiff f iled another Motio

n on April

1, 1998, asking that the Order of Dismissal be set aside, and the case be reinstated to the docket. The Court entered an Order on December

2, 1998, reinstating the case to the docket. Defendants’ Motion for Summary Judgment was filed on September 7, 1999, and summary judgment was granted on A ugust 10, 2000. The Trial Co urt , in granting defendants’ Motion to Dismiss, concluded that the plaintiff’s action had never been properly reinstated bec ause plaintiff’s initial Motion to Reinstate had not been served u

pon defendants, a

nd since the first d

ismissal of action w

as mo re th an a year from the relief sought, the Saving statute could not save the action.

Plaintiff’ s Motion to Reinstate i n response to the in itial Order of Dis

missal was timely filed.
On April 1, plaintiff filed a Motion to set aside the order of dismissal and reinstate, and while no refere

nce is made to Tenn. R. Civ. P. Rule 60, the Trial Court obviously treated that Motion as a Rule 60 motion, because a Rule 59 motion at that juncture was time-barred. The Trial Court entered an Order reinstating the action on December 2, 1998, and that Order reads as follows: The above-styl

ed matt er havi ng come unto the a ttention of the Cour

t pursuant to Motion to Set Aside the Order of Dismissal and Reinstate filed on the 1 st day of Apri l 1998, and the Court noting that there has been no response to said Motion by counsel f or the defendants, to whom notice was properly issued on or about the 1 st day o f April, 1998, and upon consideration of the M o tion and the circumstances of the matter, the Court is

of the opinion that the same should be reinstated upon the active docket for call on the ne

xt sounding of the do

cket, and that the

Order of Dism

i ssal heretofore entered without prejudice be set aside. The special circumstances of the case are that the Trial Court had entered an Order continuing the case until the defendants’ re l ease from incarceration, relying upon the a uthority of Smith v. Peoples , 681 S.W.2d 567 (Tenn. App. 1984), and subsequently, the Court act ed u nil ate ral ly, without regard for its prior Order, and dismissed the case because counsel did not appear at the sounding of a doc

ket.
We conclude that the Trial Judge acte d properly i

n reinstating the action. See Tenn. R. Civ. P. Rules 60.02(5).

Acco rdi ngly, none of the grou nds r aised in the Motion to Dismiss, nor the reasons given by the Trial Judge have merit, because the Court’s Order of December 2, 1998 reinstated the original action.

We reverse the judgm ent of the Trial Court dismissing the action, and remand for further proceedings consistent with this Opinion.-3- The costs of the c

ause are assess

ed to appellees.

_________________________ H ERSCHEL P ICKENS F RANKS , J.