### IN THE COURT OF APPEALS OF TE NNESSEE AT KNOX VILLE June 18, 200 8 S es sio n RON NIE B ERK E v. C HUB B GR OUP OF INSU RA NC E C OMP AN IES and

PACIFIC I NDEMNIT Y COMPANY
Direc t Appeal from the Chancer y Court for Hamilton Coun ty No. 96-0982 Hon. John B. Hagler, Chancellor, Sitting by In ter change

No. E2007-02132-COA- R3-CV - FILED AUGUST 14, 2008

This action was f

iled on October 3, 1996 in the Chance ry Court. The Final Judgment was e ntere d in the Tr ia l Court on Sept e mbe r 13, 20 07

. On app e a l, w e va c a te a nd re ma nd fo r a ne w t ri a l in te r a lia du e to the un re a so na

ble de la y b y th e Tr ia l Co urt in re nd e ri ng jud gme nt.

Te nn. R . A pp. P .3 App e al a s o f R igh t; Judg me nt of th e Cha nc e r y C ourt Va c at e d and Re ma nde d.

H ER S CHEL P ICK EN S F R ANKS , P.J., delivered the opinion of the Court, in which C H A RL ES D. S US ANO , J R ., J., and D. M I CHAEL S W I NEY , J., joined.

An dr e w L . Be rk e , a nd Me ga n E ng la nd De ma stu s, Cha tta no og a , T e nn e sse e , f

or app e lla nt.
W ill ia m B. Jake s, Na sh vil le , T e nn e sse e , f or app e lle e s.

OP IN ION

Pla int if f f ile d a Com pla in t on O c tob e r 3 , 1 99 6, a lle g ingthat he ha d s uf fe re d a los s to his ho me on Oc tob e r 5, 199 5, a nd that he wa s insure d by de fe nd a nt wh o ha d not pa id his c la im.

De fe nd a nt a

ns we re d, admitti ngpla int if f w a s in sure d, but de nyingthat th e c la im
rema ined unpaid. On July 29, 1997, defe ndants filed a M o t i o n to Compel reg ardingplaintiff’s failure to answer

interrog atories, a

nd an Agr eed Order was entered on Aug ust 20, 1997, which statedThe letter from the Tenne ssee Court of the Judiciary, dated May 23, 2007, was a ddresse d 1 to plaintiff’s counse l in regar d to an anonymous complaint aga inst Judge John B. Hagler , File No. 07 30 98 . T he le tte r s ta te s:

-2- pla int if f w ou ld r e sp on d w ith in 3 0 d a y s. On Se pte mbe r 3 0, 19 97 , d e fe nd a nts fi le d a Mo tio n to Dismiss for plaintiff’s fa ilure to respond to discove ry documents. On July

24, 2000, defe ndants filed another Motion to Dismiss for failure to prosecute . Plaintiff then filed a Motion to Set, and an Or der
was e ntere d on Aug ust 15, 2000, setting the c ase f or trial on Nove mber 28, 2000.
On Novembe r 6, 2000, plaintiff filed a Motion to incre ase the amount sued for , and defe ndants moved to c ontinue. The Trial J udg e then r ecuse d himself from the c ase on N ovember 13, 2000, and anothe r Tria l J udg e wa s desig nated to sit on the ca se by intercha ng e.
On Dec ember

1, 2000, defe ndants filed a Motion to Set and I mpose Dea dlines for the Completion of Discovery . On J anuar y 16, 2001, the Court enter ed a scheduling order , and set the trial for Aug ust 27, 2001. Defe ndants then filed a Motion for Continuance on Aug ust 16, 2001, and the Court enter ed an O rder rese tting the tria l by

ag ree ment of the pa

rties.
The trial wa s held on Dec ember 19 and 20, 2001. At the conclusion of the proof , the Court took the case under a dvisement.

On Marc h 17, 2006, approximately 4 1⁄2 y ear s after

the trial, the pa

rties filed a

joint Motion for Status Conferenc e. On August 23, 2007, the Trial Court enter ed a Memorandum Or der stating that the “under signe d, who ac cepte d assig nment of t h i s ca s e fr om the Chance ry Court of Hamilton County , has held this case far too long and expresses his a pologie s without e x cuse for the delay .” The Court then stated that the plaintiff ha d failed to pr ove his c laims by a pre pondera nce of
c re dib le e vid e nc e , that it ne e de d to “ re c ount the bu mpy pr oc e dura l path of this cas e as fa c ts pa rt ic ula rl y re le va nt t o th e burd e n of pr oo f” , a nd e xpla ine d that the pla int if f ha d fa ile d to p ro se c ute the laws uit

e ve n th ou g h pr e sse d by the de fe nd a nts a nd the Court

. Th e Court state d that the c a se la id dormant for

two y ear s and 8 months, until another motion to di smiss was filed, and that a lthough the
case was dorma

nt, plaintiff had proc eede d to put a new roof on the house a nd commence d an interior
renovation at gr eat e x pense.

The Court stated that a ll of t his detail i n the Order was not to embarra ss plaintiff, but to show how the lac k of prog ress wa s compelling evidenc e ag ainst plaintiff’s cla ims, because it was
unrea sonable for

“a ma n who had the best leg al ex pertise available” to sit in his “leaky home” f or two y ear s befor e putting on a new r oof. The Court then dismissed the complaint and taxed costs to the plaintiff.
Plaintiff th e n f

il e d a c o p y o f a n a n o n y mo u s le tt e r

th a t w a s s e n t t o th e Co u rt o f the J udiciary reg ardingthe Trial Judge ’s delay in issuing an opinion in this case, and filed a Notice of 1This office is in rec eipt of an unsigned complaint alleging Judge Ha gler took under a dvisement on or about De cembe r 20, 2001, t he case of Berke v. Chubb Group . . . and has ye t to rule on the ca se. If you wish to make any written comments to me, please do so within fifteen (15) da ys. I will se nd Judge Hagler a copy of any c orre spondence you might send.
The letter was signed by the Hon. Joe G. Riley, D isciplinary Counsel, a nd a copy of the letter w as sent to Judge Hagle r. -3- Appea l. Plaintiff’s issues on appea l are :

1. Whether the e vidence preponde rate s ag ainst the Trial Court’s judgme n t w hen defe ndant a d m i tted that plaintiff suffe red a loss, and defe ndant’s interna l
a dju ste r d ism iss e d th e c re dib ili ty of de fe nd a nt’ s e sti ma te of

dama g e s?
2. Whether the Tr ial Court committed mis conduct in this c ase when it issued an opinion five y ear s afte r t rial, and r ather than discussing the evidenc e, used the order as a me thod of vindication ag ainst plaintiff for a n anony mo u s c o mpla int filed ag ainst the J udg e?
Pla int if f a rgue s th e Tr ia l Co ur

t e rr e d in dis mis sin g his c la ims , wh e n th e de fe nd a nts admitted that plaintiff s uffe red a loss. The recor d demonstrates that defe ndants obviously believed that pla int if

f su ff e re d a los s fo llo wi ng the sto rm in Oc tob e r 19 95 , a nd thi s fa c t wa s no t r e a lly dis pu te d a t tr ia l, a nd the de fe nd a nts did a tte mpt to a dju st the los s. Es se nti a lly , t he o nl y di spute reg arding the loss wa s the amount of damag es. The e vidence was undisputed that plaintiff suff ere d the loss after

the storm and defe ndants admitted same by attempting to pa y for the loss. Thus, f

or th e C o u rt to disallow plaintiff’s claims in their entire ty based simply

on plaintiff’s per ceive d lack of intere st was har sh and improper

.

The Tr ial Court’s attempt to show various dela y s in the prosec ution of th i s case as being indicative of pla intiff appar ently not rea lly having a loss, is not supported by the rec ord. The
re c or d s ho ws that th e de lay s in the pr os e c uti on of the c a se we re no t e g re g iou s, a nd we re no t e nti re ly plaintiff’s fa

ult. Th e longest dela

y , obviously , was the 4 1⁄2 y ear s it took t he Court to rende r a Judg me nt. Pla int if

f e xpla ine d th a t he wa s w a iti ngon the ins ur a nc e c omp a ny

to w or k th ing s o ut w ith him. The insurance compa ny adjuster e x plained that he w as wa iting on the indepe ndent adjuster, and the indepe ndent adjuster e x plained that he was waiting on the contra ctor. The evidenc e did not
e sta bli shthat e ve ry

de lay wa s p la int if

f’ s f a ult

. We conclude th er e was a bsolutely no basis for the T rial Court to dismis s the pla int if f’ s c la ims

.This is expressed in r ece nt case s as “justice de layed is justice denie d”, e.g., G o ldbe rg v. 2 Go ldb e rg , 1995 Tenn. App. W L 9309.
-4-

Reviewing the chr onology of eve n t s i n t his case, br ings to mind a quote by the Tenne ssee Supre me Court in The Sta te e xre l. v . M

alo ne , e t al

. , 3 5 T e nn . 7 00 -7 26 (Ja c ks on , Apr il 1856) “. . . [w]e think we rec o gn ize the surest safe g uard f or the subjec t ag ainst the license of the
crow n - the most obvious and approve d pledg e for the observa

nce of that duty which is imposed on our judg es by

those memorable words of Ma g na Charta ; nulli vendemus, nulli n ega b i m u s, aut differ emus, justiti am vel re ctum - justice shall neither be dela y ed, denie d, nor sold, but shall be administered impar

tially to all.” Delay s of t his duration cannot be condoned a nd result in prejudice 2 to the judicial proce ss. Tenn. R. App. P. 36(b).

We vacate the Judgment of the Trial Court and re mand for a new tria l to be conducte d without further de lay . We, in our discretion, assess one-ha lf of the c ost of the appe al to the plaintiff
a nd on e -h a lf to t he de fe nd a nts

.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.