                                                                                                 03/30/2017




                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                   Assigned on Briefs March 1, 2017

                           MICHAEL SMITH v. RANDAL RHEA

                      Appeal from the Circuit Court for Shelby County
                     No. CT-001686-13         Robert L. Childers, Judge
                          ___________________________________

                                No. W2016-00641-COA-R3-CV
                            ___________________________________

Plaintiff appeals the dismissal of his suit for lack of prosecution, asserting that the trial
court failed to rule on several dispositive motions. Upon a review of the record, we
vacate the order of dismissal and remand the case for a hearing on the pending motions.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
                                 Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Michael W. Smith, Whiteville, Tennessee, Pro Se.

Randal Grant Rhea, Memphis, Tennessee, Pro Se.

                                     MEMORANDUM OPINION1

       Plaintiff, Michael Smith, filed this action alleging legal malpractice, breach of
contract, and several other causes of action on April 17, 2013. He alleges that the
Defendant, Randal Rhea, is an attorney who was appointed to represent him in a case in
Shelby County Criminal Court and that, as a result of Mr. Rhea’s actions and inactions in
the course of representing Mr. Smith, he was convicted; he sought damages of “not less

1
    Tenn. R. Ct. App. 10 states:

         This Court, with the concurrence of all judges participating in the case, may affirm,
         reverse or modify the actions of the trial court by memorandum opinion when a formal
         opinion would have no precedential value. When a case is decided by memorandum
         opinion it shall be designated AMEMORANDUM OPINION,@ shall not be published, and
         shall not be cited or relied on for any reason in any unrelated case.
than five million dollars.” The case was dismissed for lack of prosecution by order
entered February 24, 2016. Mr. Smith filed a timely appeal.

        In his brief on appeal, Mr. Smith, who is currently incarcerated, recites a history of
motions he filed seeking to prosecute the action, including a motion for default judgment,
motion for summary judgment, two motions to conduct proceedings by video conference
or teleconference, and two motions for judgment on the pleadings. All of these motions
are contained in the record and none were ruled upon by the trial court. Mr. Rhea has not
filed a brief on appeal, and there is no pleading or other indication that he was served or
entered an appearance in the trial court.2 The only explanation for the dismissal of the
case is the following notation on the order of dismissal: “Upon notice of the court setting
the above referenced case for dismissal, it is ORDERED, that this cause be dismissed for
lack of prosecution without prejudice.”

        On the record presented, we conclude that the case was improvidently dismissed,
in that the record shows that Mr. Smith has filed numerous motions to prosecute the case
that were pending at the time of the order of dismissal. A prisoner has a constitutional
right to prosecute a civil action seeking vindication of a legal right. Whisnant v. Byrd,
525 S.W.2d 152 (Tenn. 1975). As noted by the Supreme Court in Logan v. Winstead,
“Many suits can be adjudicated on the pleadings. Motions to dismiss, motions for
summary judgment, and other such pre-trial matters can be litigated by an inmate in
custody.” 23 S.W.3d 297 at 302 (Tenn. 2000).

       Accordingly, we vacate the order of dismissal and remand the case for the court to
rule on the pending motions.3




                                                        RICHARD H. DINKINS, JUDGE




2
  In the motion for default judgment filed June 10, 2013, Mr. Smith asserts that Mr. Rhea was served
with the complaint on April 30, 2013; there is no answer or responsive pleading in the record before us.
3
   In light of Mr. Smith’s incarceration, the court may elect to dispose of them without argument in
accordance with rules Five and Six of the Rules of the Shelby County Circuit Court.
                                                   2
