                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs July 18, 2003

                   ROBERT RIGGS v. JAMES W. GREENLEE

                      Appeal from the Circuit Court for Sevier County
                         No. 2001-500-I W. Dale Young, Judge


                No. E2003-00071-COA-R3-CV - FILED JANUARY 8, 2004


This is a legal malpractice suit by Robert Riggs against James W. Greenlee, who represented him
in a criminal case. Mr. Riggs was convicted of a Class E felony, which carries a sentence range of
one to two years. The Trial Court dismissed the case because Mr. Riggs, who it appears is still
incarcerated, failed to appear when the case was set. We vacate and remand.


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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO , JR., JJ., joined.

Robert Riggs, Pro Se, Appellant

James W. Greenlee, Pro Se, Appellee

                                           OPINION


       After the complaint was filed Mr. Greenlee filed a motion for summary judgment, supported
by his own affidavit. Mr. Riggs responded to the motion with an affidavit of a former criminal
attorney who was incarcerated with Mr. Riggs.

        Thereafter, Mr. Riggs filed a pleading styled “Motion to hold in abeyance” and cites as
authority for his motion the case of Logan v. Winstead, 23 S.W.3d 297 (Tenn. 2000).

         Mr. Greenlee then withdrew his motion for summary judgment, and thereafter the case was
set for trial. An order of dismissal was entered when Mr. Riggs did not appear.

        Because no factual determination was made by the Trial Court and the question presented
is one of law, we indulge no presumption relative to Court’s determination. Tenn.R.App.P. 13.
        At the outset we conclude that the case should not have been set for trial because the
Plaintiff’s motion to “hold in abeyance” was still pending.

       Our Supreme Court, in Logan, supra, which also involved an incarcerated person, addressed
the specific question and articulated the rule that should apply (23 S.W.3d at 298):

                 This appeal arises from a prisoner's pro se action for legal malpractice
        against the attorney who represented him in criminal court on the charges
        underlying his sentence. The attorney filed a motion for summary judgment
        supported by an expert affidavit. The prisoner, relying upon Whisnant v. Byrd, 525
        S.W.2d 152 (Tenn.1975), filed a motion to hold the proceedings in abeyance until
        he was released from prison and able to appear in court. The trial court failed to
        rule on the motion for abeyance. The trial court entered summary judgment in
        favor of the attorney on the grounds that the prisoner had not offered an expert
        affidavit to rebut the attorney's proof. The Court of Appeals upheld the judgment.
        We granted review to determine under what circumstances an incarcerated
        plaintiff is entitled to have a civil action held in abeyance until he or she is
        released from custody. We have determined that a plaintiff in prison has no
        absolute right to have civil proceedings stayed or to be present during civil
        litigation. Accordingly, we overrule Whisnant to the extent that it may be
        interpreted to stand for that proposition. Instead, we hold that an abeyance should
        be granted by the trial court only when reasonable under the circumstances, in
        light of several competing interests. Because the trial court in this case failed to
        consider Mr. Logan's motion to hold his case in abeyance, we remand this case to
        the trial court for further proceedings consistent with this opinion.

                ....

                Relying upon Whisnant v. Byrd, Mr. Logan argues that the trial court erred
        by not holding his malpractice action in abeyance until he was released from
        prison. In Whisnant we held:

                   [A] prisoner has a constitutional right to institute and prosecute a
           civil action seeking redress for injury or damage to his person or property,
           or for the vindication of any other legal right; however, this is a qualified
           and restricted right.

                                              ****
                   [A]bsent unusual circumstances, prisoners who have filed their civil
           complaints, unrelated to the legality of their convictions and who have thus
           protected themselves against the running of any statute of limitations, will
           not be afforded the opportunity to appear in court to present their cases
           during their prison terms. Instead such matters will be held in abeyance until

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   the prisoner shall have been released from prison and is in a position to
   prepare and present his case.

        Whisnant, 525 S.W.2d at 153-54. See also Smith v. Peebles, 681 S.W.2d
567, 569 (Tenn. Ct. App.1984) (citing Whisnant and stating: "In the instant case
plaintiff prisoner's 'constitutional right to institute and prosecute a civil action' was
effectively denied when the Trial Judge refused a continuance and dismissed
plaintiff's complaint for 'failure to prosecute.' ").

        Mr. Winstead argues that Whisnant and Smith apply only to the right of
prisoners to appear at the trial of their civil suits, but they do not guarantee a right
to be present during the disposition of pre-trial matters, nor do they discuss how
a trial court should handle pre-trial matters. Contending that a motion for
summary judgment is a pre-trial matter, Mr. Winstead argues that Mr. Logan had
no right to be present during the trial court's consideration of the motion, and,
accordingly, no right to an abeyance of proceedings.

         As support for this argument, Mr. Winstead cites Sanjines v. Ortwein &
Assocs., 984 S.W.2d 907 (Tenn.1998), in which a pro se inmate simultaneously
filed a legal malpractice action against his attorney and a post-conviction claim
alleging ineffective assistance of counsel. The defendant filed a motion for
summary judgment in the civil action, and the plaintiff asked the trial court to stay
the malpractice action until the conclusion of the post- conviction proceedings. In
deciding that the prisoner was not entitled to a stay of the malpractice suit, this
Court observed that:

           While the Court in Whisnant was concerned with the rights of
   inmates to file civil complaints, the Court did not hold that a stay is
   necessary in all civil actions filed by incarcerated persons in order to
   prevent prejudice to the judicial process. Neither did the Court hold that
   such persons have a constitutional right to a stay of their civil actions. The
   Court was concerned only with the rights and qualifications of an inmate to
   appear in court for trial. Whisnant does not discuss how a trial court should
   handle pre- trial matters such as stays of proceedings in inmate civil actions.

Sanjines v. Ortwein, 984 S.W.2d at 910.

       While the Sanjines case dealt with a plaintiff's filing of simultaneous civil
and post-conviction actions, its language makes clear that incarcerated plaintiffs
do not have a constitutional right to a stay of their civil proceedings. We agree
with Mr. Winstead and with our reasoning in Sanjines and hold that although


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         incarcerated plaintiffs have a constitutional right to initiate and prosecute a civil
         action, they do not retain an absolute right to have civil litigation held in abeyance
         until they are released from custody, nor do they retain an absolute right to be
         present at each stage of the proceedings. Accordingly, we overrule Whisnant to the
         extent that it may be interpreted to guarantee incarcerated plaintiffs these absolute
         rights.

                Instead, we hold that the decision of whether or not to stay civil
         proceedings for a prisoner is left to the discretion of the trial court. Acting on a
         case-by-case basis, the trial court must weigh the competing interests of the
         inmate's ability to present proof and the burden on the judicial system and the
         defendant in continuing the action. In reviewing a trial court's ruling on a motion
         for abeyance, appellate courts should employ an abuse of discretion standard of
         review. See Sanjines v. Ortwein, 984 S.W.2d at 909.

                  One of the main factors to be considered by the trial court in considering
         a motion for abeyance is whether the inmate will be released from prison and able
         to appear in court within a reasonable amount of time from the filing of the suit.
         This determination will unmistakably vary from one case to the next. Besides the
         length of the prisoner's remaining sentence, other countervailing interests should
         be considered by the court, including the burden on the court in maintaining a
         docket on which such claims will remain for an extended period, and the
         inconvenience and impracticability of litigating a suit several years after its filing.
         Not only will prisoners have a more difficult time presenting proof if their cases
         are held in abeyance, but defendants have a right to have claims against them
         timely adjudicated. The longer a suit is held in abeyance, the more difficult it will
         be to try on its merits. Witnesses may move or pass away, memories will fade, and
         proof will become harder to obtain. It is in everyone's best interest--the court's,
         plaintiff's, and defendant's--to require the incarcerated litigant's suit to proceed,
         when reasonable under the circumstances. However we hasten to add that when
         a trial court denies a prisoner's request for an abeyance, it should, within its
         discretion, afford the prisoner sufficient time for filing briefs and motions and for
         conducting discovery. This is especially true when inmates are proceeding pro se.
         Trial courts should waive the time requirements of the Rules of Civil Procedure
         and set reasonable time restrictions in such instances.



        For the foregoing reasons the judgment of the Trial Court is vacated and the cause remanded
for proceedings not inconsistent with this opinion. Costs of appeal are adjudged against James W.
Greenlee.



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_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE




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