# FILED
August 24, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON RONNIE BRADFIELD, ) ) Plaintiff/Appellant, ) Shelby Circuit No. 51964 T.D. ) VS. ) Appeal No . 02A01-9808-CV- 00220 ) CITY OF MEMPHIS, et al, )

) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE KAREN R. WILLIAMS, JUD GE

RONNIE BRAD FIELD, pro se Pikeville, Tennessee
ELBERT JEFFERSON, JR. Assistant Cit

y Att orney Memphis, Tennessee Attorney for Appellee

REVERSED AND

REMANDED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. Ronnie Bradfield (“Bradf ield” or “Appellant”) appeals from the trial court’ s order2

dismissing Bradfield’s Writ of Error and/or in the Alter native Motion to Set Aside Judgment of Dismissal.

I. Factual and Procedur al History

On February19, 1993, Bradfield filed a Complaint of Personal Injury and Pr operty Damage in Circuit Court. Br adfield alleged that he was shot b y a City of Memphis policeman on February 21, 1992 without justificationor reasonable cause. Bradfield w as incarcerated at the tim e of filing his complaint and r emains incarcerated at this time. Bradfield has proceeded pro se in this matter.

In response to the Complaint, on or about April 20, 1993, the City of Memphis ( “City”
or “Appellee”) filed a “Mo tion to Dismiss or, in the Alt ernative, for Summary Judg ment; for More DefiniteStatement; for Severance; to Strike Jury Demand; and to Strike Excessive Ad Damnum.” No hearing w as held on theMotion. Bradfield filed an “Entry of Address and Location Correcti on” on January 3, 1994, indicati ng his move to a different cor rectional facility.

At some time prior to June 20, 1995,Bradfield moved the trial cou rt for a continuan ce of an y hearings and reque sted an extension of time to respond to any pleadings. On June 20, 1995, the City filed a “Motion and Memorandum in Opposition to Plaintiff’s Motion for Cont inuance/Exten sion of Time ; Motion to Show Cau se” arguing,
amon g othe r things, that Bradfield had never responded to the Cit y’s prior “Moti on to Dismiss.”

Bradfield responded on or about July 5, 1995 with “Plaintiff’s Opposition to Summary Judgment, Motion to Dismiss, Motion to Strike For Jury Demand, and Motion for Excessive Ad Damnum.” Bradfield also filed an addendum to his motion for continuance and/or extension of time. Again, none of the motions filed by Bradfield or the City was ev er heard or ruled upon by the t rial court. Bradfield filed several motions in August of 1995. On August 11, 1995, Bradfiel d filed “Submission of

Plaintiff’s Instructions for J ury,” “Plaintiff Motion forIndividual Jury Voir3

Dire”and “Plaintiff Request for Judg ment for Default by Defendants for Failur e to Respond and Serve Answers to I nterrogatives [sic ] and Request for Production of Docu ments.” On Au gust 18, 1995, Bradfield filed “Amendment to Pl aintiff’s Opposition to Summar y Judgment.”On Augu st 25, 1995, Brad field fil ed “Plai ntiff

Request for Entry of Judgment by Default of the Defendant(s).” None of thes e motions was

heard or ruled upon by the trial court.

In May of 1996, Bradfield filed “Pl aintiff’s Request for S ummary Judgment and Request for a Court Order to Compel the Defendant(s) to Answer Interrogative(s) [ sic] and to Produce Requested Copies of Documents” a long wi th an Affidavit in support of his motion. Bradfield also filed “Plaintiff’s Moti on for ‘All’ His Moti ons and Petitions to be Ruled Upon, Plaintiff’s Request that his Petition for ‘W rit of Habeas Corpus (Ad Testificandum)’ be Granted in this Action, Pl aintiff’s Motions, tha t th e Defendant, City of Memphis, be Compel [sic] to Produced Documents,Answers to Interro gatories.” These motions were not heard or ruled upon by the trial court.

In May, 1996, Bradfield recei ved a notice from the Circuit Court Cl erk’s Office stating that Bradfield’s cause of action was set for dismi ssal for lack of prosecution at 10:00 am
on July 1, 1996. In response, Bradfield mail ed a certified letter to the clerk of the trial court judge, the court cl erk and also to the defen dant. The let ter was addressed to Judge Williams, noting the notice of dismissal, noting his status as an inmate in the Tennessee Departmentof Correction, and informing the judge that Bradfield had fi led numerous motions, none of which had been considered or ruled upon by the trial court . Bradf ield asked the trial court jud ge to advise him if he had carelessl y overlooked somet hing. Bradfield requested that the di smissal for lack of prosecuti on be denied.

On July 9, 1996, the trial court found that Brad field failed to appear andgive notice of his intent

to prosecute, and ordered the action dismissed with costs assessed against Bradfield. Bradfield filed a timely notice of appeal and also filed “Plaintiff Request th at ‘All’ Recordsa n d Transcripts be Forw ard [sic] to the Clerk of the Court of Appeals” and4

“P laintiff Motion to Seat Cour t Cost in Ab eyance.” The reco rd was not f orwa rded to thi s Court by the clerk of the trial court. Thereafter, Bradfield submitted to this Co urt for filing
a copy of th e technic al record and signe d the cert ificatio n wh ich purports to certify the authenticity

of the record. Accordingly, on October 31, 1996, this Co urt foun d that the
r e cord submitted did not comply with the Tennessee Rules of Appe llate Procedure because it was neither prepar ed by nor

transmitted by the trial court clerk andthis Court ordered the t

echnical r

ecord submit

ted by Brad

field be retu rned to him.

On November 15, 1996, Bradfield fil ed a motion to compe l the trial court clerk to transmit the record on appeal to this Court. On November 22, 1996, City of Memphis filed
a motion to dismiss the appeal for Bradfield’s failure to file a transcript or otherwise comply with the mandates contained in Rule 24 T.R.A.P. Bradfield did not respond to the C ity’ s motion and this Court therefafter ordered that the app eal be dismissed for Bradfield’s failure to comply with the requirements of Rule 24 T.R .A.P.

On February 10, 1997, Bradfield filed, in the trial court, a “Writ of Error and/or in the Alternate [sic] Motion to Set Aside Judgment of

Dismissal.” Bradfield requested a March 14, 1997 hearing date on the motion. On July 14, 1998, the trial court entered an or der finding that the trial court lacked jurisdiction to rule further on said matter and denied and dismissed Bradfie ld’s motion. It is from that orde r of t he tri al court that Bradfield now appeals.

II. Trial Court Jurisdiction
Bradfield, proceeding pro se , contends that the trial cour t erred in dismissing Bradfield’s complaint for failure to prosecute. However, Bradfield’s appeal on the merits of that issue was dismissed in an order dated December 31, 1996. This appea l involves only the issue of whether the tria l court erredin finding that the trial court lacked jurisdiction to
r u le on Bradfield’s’s motion to set aside the judgment and de nying and dismissing said1 Brad field filed“Writ of Error and /orin the Alternate [

sic] Moti on to Set Asi de Judg me nt of D ism issa l” in whic h Bra dfield requ este d tha t the o rder of dis mis sal fo r lack of pro sec ution be se t asid e, tha t Brad field’s complaintbe reinstated, and t hat Bradfi eld be allowed to prosecute his complaint . Bradfi eld also f iled a memorandum of l aw in supp ort of his m otion and a ttach ed a c opy of the o rigina l com plaint , a co py of h is pr evious moti on en titled “P laintiff ’s Mo tion fo r ‘All’ His Motio ns an d Pe titions to be Rule d Up on, P laintiff ’s Request that h is Pe tition fo r ‘W rit of Ha bea s Co rpus (Ad T estific and um )’ be G rante d in this Actio n, Pla intiff’s Motions, that the D efenda nt, City of Me mph is, be Co mpe l [sic] to Produ ced D ocum ents, An swers to Interroga tories,” and copies o f the orde r of dism issal and Bradfield’s letter to the trial co urt. The trial

cour t’s order

mistakenly add resses not onl y the “Writ of Error . . .” but also Bradfiel d’ s previously fil ed motion “[F] or allHis Motionsand Pe titions to be Ruled Upon . . .” Bradfi eld merely a ttached this motion to his mem ora ndum in supp ort of the “Writ of Error . . .” and to the extent that the trial court addressed thes e m otion s of B radf ield to geth er with his “Writ of Error .. .” t he trial court was inerror. The t rial court can only ad dress the prio r motions of Bradfield if it gra nts Brad field’s m otion to se t aside the judgm ent. W e willaddress the t rial co urt’s or der to the e

x te nt that it rul ed upon Bradfield’s “Writ of Err or and/or i n the Alternate [sic] Motion to Set Aside Judgmen t of Dismissal.” 5 motion. 1

In support of Bradfield’s “W rit of Error and/or in the Alternate [sic] Mo tion to Se t Aside the Judgment of

Dismissal,” Bradfield c ites Tenn. Code Ann. § 27-6-101, T.R .C.P. 59 and 60. We shall address each of these in turn.
Tenn. Code Ann. § 27-6-101, namely “Right to Writ” states that a writ of error lies from the final judgment of the c o urt of general sessions to the circuit court or pr oper appellate court, and from the circuit o r chancery court to s uch appellate court. However, with the promulgation of T.R.A.P. 3(d) , the Supreme Court announcedthe abolition of the writof error as an appellate proc edure. Haynes v. McKenzie Mem. Hosp. , 667 S.W.2d 497 (Tenn.App. 1984). Title 27, Chapter 6 w as effectively repealed so far as it was in conflict wit h said rule. In any case, the writ of error was desi gned to appeal the case to a hig her court. It is not a procedure which would allow the trial cour t to review or r

e-open a final judgment. The trial court did not err in failing to set aside the judgment based upon § 27-6- 101.

Bradfield also cites to T.R.C.P. 59. Rule 59 deals withmotions for new trials and/or motions to alter or amend a judgment. To the extent that Bradfie ld’s motion could be construed as a motion for new t rial or to alter or amend the

judgment, Bradfield’s motion must fail as untimely. Rule 59 dictates that such motions must be filed and served within thirty (30) days after judgment has been entered. Bradfield’s motion was filed on February 10, 1997, almost seven (7) months after the entry of the order

of dismi ssal. Acc ordingly,6

the trial court did not err in failing to alter, amend or set aside the judg ment based upon T.R.C.P. 59.

Bradfield cites to T.R.C.P. 60 as authority

to set aside the judgment. R ule 60 providesrelief from judgments or order s based upon c lerical m istakes, mistakes, inadvertence, excusable neglect, fraud, etc. The time limit for filing a Rule 60 mot ion is within a reasonable time, and for mistak e, inadvertence, surpri se, excusable neglect,or f raud not more than one year after the j udgment, order or proceeding was entered o r taken. T.R.C.P. 60.02. As Bradfield fil ed his motion approximately seven (7) months after the orde r was enter ed, it app ears that his motio n was timel y.

The trial court appears to have taken the view that the trial court lacked jurisdiction to entertain Bradfield’s motion based upon the prior appeal of the matte r to th is Co ur t. We find no Tennessee case law wh ich speaks directly to the effect that acomplete d appeal has upon a Rule 60 motion.

There are Tennessee cases which d iscuss the correct procedure to be followed when seeking relief under Rul e 60 while an appeal is pending. In the ca se of An dr ews Distributingv. Oak Square at Gatlinburg , 757 S.W.2d 663, 667 (Tenn. 1988), the Tennessee Supreme Court held that the time restraints applicable to Rule 60 motions are those expressed in T.R.C.P. 60 .02, without regard to the status of an appeal and held that the trial court had juris

diction tohear the plaintiff’s Rule 60 motion even when the appeal was pending in the Court of Appeals.

In the case

of Spence v. Allstate Ins. C o. , 883 S.W .2d 586 (Ten n. 1994), the Tennessee Supreme Court changed its s tance on this issue. As ther e is no gui dance in Rule 60.02 as to the proper court in which to file the motion once an appeal is pendi ng, the SupremeCourt looked to cases inte r preting Rule 60(b) of the Federal Rules of Civil Procedure which is substantial ly similar to our Rule 60.02. The Supreme Cour t noted that
more courts seem to adhere to the v iew that the district

court may consider

the Rule 60(b)7

motion during the pendency of the appeal, and if the district court is inclined

to grant the motion, the movant may apply to the appellate court for an or der of remand.

Ultimate ly, the Tennessee SupremeCourt declined to adopt a rul e that would allow
a cas e to be pending in more than one c ourt at a time. The Tennessee Supreme Cour t found that the potenti al for eit her admi nistrati ve oversight or for a mi sallocation of valuable judicial resources engendered by allowingthe trial court to entertain motions for relief from judgmentonce an appeal is pendin g outweigh s the consid eration of ju dicial econ omy promoted by allowing the trial courts to consider such motions. Spence at 596. The Court held that a trial cour

t has no jurisdiction to consider a Rule 60.02 motion dur ing the pendency of an appeal. Id . “Ifa party wishes to seek relief from the judgment duri ng the pendency of an appeal, he should apply to the appellate court for an order of remand.” Id

.
While we acknowledge that a trial court has no jurisdiction to consider a Rule 60.02 motion during the pendency of an appeal , the case before us differs from that situation. In the case at hand, Bradfield filed his Rule 60 motion within the applicable time peri od found in Rule 60.02 and after his appeal w as concluded. The question before us is whether the trial court had jurisdiction to enter tain this motion after Bradfield’s appeal was concluded.

We do find this issue addressed br iefly by the Eastern sec tion of this Cou rt in a footnote in the c

ase of Ellison v. Alley, 902 S.W.2d 415 (Tenn.App. 1995). In Ellison , vendor sued real estate brokers for breach of fiduciary duty in the sale of a farm. On the original appeal, the Tennessee Supreme Court held tha t the brokers were not entitled to commission. Following remand, th e brokers moved to set aside the adverse judgment on groundsthat vendor

committed fra ud in securi ng judgment against th em. The motion was denied as untimely as it was filed more than one year after the challeng ed judgment was entered.

In a footnote in Ellison , the Eastern section of this Court discussed the fact that the
case was pending on appeal dur ing the year following entry of the j udgment, an d that8

accordinglythe trial court had no jurisdiction to consider a Rule 60 motio n during the pendency of the appeal. Ellison at 418. The Court then stated that said situati on does not affect the requirement

that a motion based upon fraud be filed w ithin one year

of judgment from which relief was

sought. Id . The party seeking relief under Rule 60 could have applied to the appellate court for an order of remand. Id

. Importa ntly, the Court then went onto say that it is immater ial that first the Court of Appeals and then the Supreme Cou r t modified the trial court’s earlier judgment. Neither of the appellate courts modified the b asic holding of

the trial court and the

one attacked in the Rule 60.02 motion. Ellison at 418. This Cour t then stated, “We do not address the issue of when a Rule 60.02 motion w ould need to be filed when an appell at e c ourt substantially modifies, by reversal or otherwise, the lower court’s judgment.” Id

.
While the Court in Ellison did not specifically address the issue of whether a tria l court lacks jurisdiction to hear a Rule 60 motion afte r a compl eted appeal, it specifically noted that it was immaterial that the case had pr oceeded through the Court of Appeal s and SupremeCourt and modified by both (al though not modifying the basi c ho l ding). It does not appear th at the Cou rt was troub led by t he fact that the case h ad proceeded through the Court of Appeals and Supreme Cour t. Additionally, althoug h the holding in Andrews , as to jurisdiction of the tri al court while an appeal is pending, was ultimatelyoverruled , we st ill ha ve the lang uage from the T ennessee Supr

eme Court in

that case tha

t the time restraints

applicable

to Rule 60 mo

tions are those expressed in T.R.C .P. 60.02, without regard to the status of an appeal. In federal court, this issue w as been decided in favor or continuing juris

diction in the district court to hear a Rule 60(b) motion after an appeal . In 1976, in Standard Oil Co. of California v. U.S. , 97 S.Ct. 31, 429 U.S. 17, 50 L.Ed.2d 21 (1976), the Supreme Court held that the district court may entertain a Rule 60(b) motion after an appeal w ithout lea ve of the appellate court. Of course, the district judge is not free to i gnore the decision of the appellate court so far as it goes, but he is free to consider w hether circumsta nces n ot previously know

n to either court compel a new trial. 97 S.Ct.. at 32.9

We note, however, that

the circumstances of this case make our decision somewhat easier. In the case at

hand, the appeal tothis Court was dismissed on technical grounds, and did not involve the mer its of the case. The order of this Court dismissing Bradfield’s appeal neither encompassed nor dispos ed of any of the issues raised by Bradfield in his Rule 60 motion.

In federal court, it appears that even before the Supreme Court decided in favor or continuing jurisdictionin the district court to hear a Rule 60(b) motion after an appeal, the trial court had continuing jurisdiction where the appeal was dismiss e d on technical grounds. As explained i n 7 Moore's Federal Prac tice (1972 ed.), 60.30 [2], at p age 424: And first, we shall consi der the case w here the appeal is dismissed, without a decision on the issu es. * * * Since there is no problem of deviating from the appellate court's mandate and since the appeal no longer pends, the district court has the power to entertain a timely motion for relief under 60(b).

Based upon the current stance of the federal court interpreting the similar F.R.C.P. 60, and upon the langu age in the aforem entione d Tenne ssee case s, we hold thatthe trial court retains jurisdictio n to rule upon a timely T.R.C.P. 60 motion when an appeal has been dismissed on procedural grounds b y an appellate court. As it is not necessary for the disposition of this ca se, we decline to decide the larger issue of the effect a compl eted appeal on the merits has upon the trial court’s jurisdictionto entertain a timely T.R. C.P. 60 motion. For the foregoing reasons, the trial court erred in finding that it had no jurisdiction to e ntertain B radfield’s motion and erred in dismissing said motion to the extent that Bradfield sought relief under Rule 60.

III. Conclusion

The judgment of the trial court is hereby reversed an d remanded f or proceedings consistent

with this opinion. Costs ofthis appeal are taxed Appel lee, for which executi on may issue if neces sary.10 HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.