Pig Improvement Co., Inc. for the use and   )   Appeal No.
benefit of Continental Casualty Co.,        )   01-A-01-9610-CV-00478
      Plaintiff/Appellant,                  )
v.                                          )   Docket No.
Curt Reaver and Richard Alan                )   96C1459
Tracey, Jr.,                                )
      Defendants/Appellees.                 )                 FILED
                                                                 July 9, 1997

                                                              Cecil W. Crowson
                                                             Appellate Court Clerk


                 COURT OF APPEALS OF TENNESSEE

                  MIDDLE SECTION AT NASHVILLE

 APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

        THE HONORABLE THOMAS W. BROTHERS, JUDGE



JOSEPH P. RUSNAK
Tune, Entrekin & White, P.C.
21st Floor, First American Center
315 Deaderick Street
Nashville, Tennessee 37238
      ATTORNEY FOR PLAINTIFF/APPELLANT


BRYAN ESSARY
JOE W. ELLIS II
Gideon & Wiseman
NationsBank Plaza, Suite 1900
Nashville, Tennessee 37219-1782
      ATTORNEYS FOR DEFENDANT/APPELLEE




                      VACATED AND REMANDED




                                            SAMUEL L. LEWIS, JUDGE
                                     Opinion

      This is an appeal by plaintiff/appellant, Pig Improvement Co., Inc., from a
decision of the Sixth Circuit Court for Davidson County dismissing Pig
Improvements’s complaint against defendants/appellees, Curt Reaver and Richard
Alan Tracey, Jr. The facts out of which this matter arose are as follows.


      Paul Glen Draper is an employee of Pig Improvement. Draper, Richard Alan
Tracey, Jr., and Curt Reaver were involved in an automobile accident on 22 October
1994. Draper was acting in the course of his employment at the time of the accident.


      Draper filed a complaint in the Second Circuit Court for Davidson County on
7 November 1995. He named Reaver and Tracey as defendants. Reaver filed a
motion for summary judgment, and Draper filed a motion to amend his complaint to
add Pig Improvement as a plaintiff. The Second Circuit granted Reaver's motion on
8 April 1996. Thereafter, Tracey filed a motion for summary judgment. The Second
Circuit granted Tracey’s summary judgment motion and denied Draper’s motion to
amend on 5 June 1996. Draper filed a timely notice of appeal as to each order.


      Pig Improvement filed a complaint in the Sixth Circuit Court for Davidson
County on 17 April 1996. Pig Improvement named Reaver and Tracey as defendants.
Reaver filed a motion to dismiss for failure to state a claim upon which relief could
be granted. He argued the doctrine of “prior suit pending” prohibited prosecution of
the case. The Sixth Circuit agreed and granted the motion to dismiss on 23 August
1996. Pig Improvement filed its notice of appeal on 20 September 1996.


      Upon the motion of Pig Improvement and Draper, this court consolidated the
two appeals from the Second Circuit’s decisions and refused to consolidate the appeal
from the Sixth Circuit’s decision. This court heard the consolidated appeal on 6
January 1997 and determined the Second Circuit erred when it denied Draper’s
motion to amend. Specifically, this court concluded the trial court should have
considered substance over form and treated the motion as if it were a motion to
intervene. Finally, this court remanded the case to the Second Circuit with directions
to enter an order permitting Pig Improvement to intervene. Draper v. Reaver, No. 01-
                                          2
A-01-9609-CV-00394, slip op. at 7-8 (Tenn. App. 11 Apr. 1997). The appeal from
the Sixth Circuit’s decision is now before this court.


      Reaver filed a motion to dismiss the appeal on 18 October 1996 based on Pig
Improvement’s failure to timely serve the notice of appeal on the clerk of this court.
In response, Pig Improvement filed a “motion to allow late-filed filing of notice of
appeal.” This court reserved judgment on the motions until the Tennessee Supreme
Court decided Cobb v. Beier. The supreme court filed its decision on 28 April 1997
and held: “We are therefore of the opinion that this case, and all cases presently on
appeal in which the clerk of the appellate court was not timely served a copy of the
notice of appeal, should not be dismissed for failure to comply with Rule 5(a),
T.R.A.P.” Cobb v. Beier, No. 03-S-01-9610-CV-00106, slip op. at 7 (Tenn. 28 April
1997). Thus, Reaver’s motion is hereby denied and Pig Improvements’ motion is
hereby granted.


      The issues presented by this appeal were dependant on the outcome of the
appeal from the Second Circuit’s judgments. Given our decision in that appeal, the
issues presented by this appeal are now moot. “The central question in a mootness
inquiry is whether changes in the circumstances at the beginning of the litigation have
forestalled the need for meaningful relief.” McIntyre v. Traughber, 884 S.W.2d 134,
137 (Tenn. App. 1994). Without question, this court’s ruling ordering the Second
Circuit to enter an order permitting Pig Improvement to intervene provided Pig
Improvement with the relief it sought in this case. There is no doubt that Pig
Improvement filed the present action to avoid the statute of limitations in the event
this court upheld the Second Circuit’s ruling denying Draper’s motion to amend. See
Tenn. Code Ann. § 50-6-112(c),(d) (1991).


      Therefore, it follows that Reaver’s motion to dismiss is denied and Pig
Improvements’ motion to allow late filing of notice of appeal is granted. The trial
court’s judgment is vacated, and the case is remanded to Sixth Circuit Court with
directions to enter an order dismissing the case. McIntyre, 884 S.W.2d at 138. Costs
on appeal are taxed to plaintiff/appellant, Pig Improvement Co., Inc.

                                              ___________________________________
                                              SAMUEL L. LEWIS, JUDGE

                                          3
CONCUR:



_______________________________________
BEN H. CANTRELL, JUDGE



_______________________________________
WILLIAM C. KOCH, JR., JUDGE




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