                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      September 21, 2005 Session

             ANDRE MATTHEWS v. SHELBY COUNTY GOVERNMENT

                   A Direct Appeal from the Chancery Court for Shelby County
                    No. 110180-2    The Honorable Arnold Goldin, Chancellor



                      No. W2005-00470-COA-R3-CV - Filed October 17, 2005


        Appellant filed suit against the county alleging violations of the Tennessee Human Rights
Act, and the case was dismissed for failure to prosecute. Approximately three years later, Appellant
filed a Tenn. R. Civ. P. 60.02 motion for relief from the order of dismissal. The trial court denied
the motion, and Appellant appeals. We affirm.

     Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY , J., joined.

Gerald S. Green of Memphis for Appellant, Andre Matthews

M. Dell Stiner, Assistant Shelby County Attorney, for Appellee, Shelby County Government

                                       MEMORANDUM OPINION1


       On November 14, 1997, Andre Matthews (“Plaintiff” or “Appellant”) filed a complaint
against the Shelby County Government (“Shelby County,” “Defendant,” or “Appellee”), alleging that
he was unlawfully dismissed from his position as a counselor at the Shelby County Correctional
Center. Specifically, Mr. Matthews asserts that his termination violated T.C.A. 4-21-102(4) of the
Tennessee Human Rights Act. On December 30, 1997, Shelby County filed its Answer. No other
activity occurred on the case and, on September 20, 2001 upon motion of the Clerk and Master of
the Shelby County Chancery Court, the case was dismissed without prejudice for failure to prosecute.
On September 14, 2004, Mr. Matthews filed a Rule 60.02 “Motion For Relief From Order

         1
           Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The 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. W hen a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.
Dismissing Cause For Lack Of Prosecution.” An Order denying the motion was entered on February
2, 2005, and Appellant filed a Notice of Appeal on February 18, 2005. The Appellant raises one
issue for review, as stated in his brief:
               Whether the trial court erred when it denied appellant’s motion to set
               aside the order dismissing case for lack of prosecution when
               Appellant had not been given adequate notice and an opportunity to
               be heard at a critical stage of litigation and therefore, denied
               Appellant the due process of law.


         It is undisputed that Mr. Matthews did not receive notice that his action was to be dismissed.
In fact, he did not receive notice that the case had been dismissed until September 13, 2004, almost
three years after the dismissal for failure to prosecute. Mr. Matthews asserts that failure to give
notice that the court was contemplating dismissal of his cause of action prevented him from
addressing the merits of dismissal before final judgment was entered. The Appellant contends that
the order dismissing his case should be set aside under Rule 60.02 of the Tennessee Rules of Civil
Procedure. Rule 60.02 states in pertinent part as follows:
               On motion and upon such terms as are just, the court may relieve a
               party or the party's legal representative from a final judgment, order
               or proceeding for the following reasons: (1) mistake, inadvertence,
               surprise or excusable neglect; (2) fraud (whether heretofore
               denominated intrinsic or extrinsic), misrepresentation, or other
               misconduct of an adverse party; (3) the judgment is void; (4) the
               judgment has been satisfied, released or discharged, or a prior
               judgment upon which it is based has been reversed or otherwise
               vacated, or it is no longer equitable that a judgment should have
               prospective application; or (5) any other reason justifying relief from
               the operation of the judgment. The motion shall be made within a
               reasonable time, and for reasons (1) and (2) not more than one year
               after the judgment, order or proceeding was entered or taken.

We note that Mr. Matthews’ Rule 60.02 Motion did not set out with particularity which provision(s)
of Rule 60.02 he relies upon. However, from the record and pleadings, it appears that Mr. Matthews
does not rely upon ground (2) fraud, ground (3) the judgment was void, or ground (4) satisfaction
of judgment. Consequently, it appears that he is proceeding on on ground (1) mistake, inadvertence,
surprise or excusable neglect, or ground (5) any other reason justifying relief from the operation of
the judgment.
        Tennessee's trial courts possess broad discretionary authority to control their dockets and
the proceedings in their courts. Hodges v. Attorney General, 43 S.W.3d 918, 921 (Tenn Ct. App.
2000). They have the express authority to dismiss cases for failure to prosecute or for failure to
comply with the Tennessee Rules of Civil Procedure or the orders of the court. Tenn. R. Civ. P.
41.02(1). These rules permit trial courts, in their discretion, to dismiss complaints on their own
motion for failure to prosecute, but this authority should be exercised sparingly and with great care.

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Harris v. Baptist Mem'l Hosp., 574 S.W.2d 730, 731 (Tenn.1978). Tenn. R. Civ. P. 41.02(1) does
not explicitly require the trial court to give a plaintiff notice before dismissing a complaint for failure
to prosecute. Rule 22, Rules of Shelby County Chancery Court, provides for dismissal for failure
to prosecute after twelve months without steps being taken by plaintiff to dispose of the case.
        On appeal of a denial of a motion for relief under Rule 60.02 of the Tennessee Rules of Civil
Procedure, the appellate court may reverse the denial of the motion for relief only if the denial
amounts to an abuse of discretion. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993);
Hart v. Tourte, 10 S.W.3d 263, 269 (Tenn. Ct. App. 1999).
          Based on the provisions of 60.02 (1) a motion for relief from a judgment based upon
mistake, inadvertence, surprise or excusable neglect must be filed no more than one year after
judgment was entered. Tennessee courts have held, based on the importance of the principle of
finality, that the one year limitation for filing under Rule 60.02 (1) and (2) is a hard line rule. See,
e.g., Wright v. Quillen, 75 S.W.3d. 413, 418 (Tenn. Ct. App. 2001) (ruling that defendant’s Rule
60.02 motion for relief from judgment based on ground (2) fraud, which was filed three years and
ten months after the motion was granted by the trial court, was untimely because it was required to
be filed within one year after judgment was entered); Holiday v. Shoney’s South, Inc. 42 S.W.3d
90, 93 (Tenn. Ct. App. 2000) (finding that plaintiff’s request for relief pursuant to Rule 60.02(1) was
filed more than one year after the judgment and was untimely); Ellison v. Alley, 902 S.W.2d 415,
417 (Tenn. Ct. App. 1995) (holding that motion filed pursuant to Rule 60.02(2) was untimely when
filed more than one year after challenged judgement was entered). In the present case, the Appellant
filed his motion for relief almost three years after the order dismissing the case was entered, thereby
barring the Appellant from filing under Rule 60.02 (1).
         We now turn to the question of whether Rule 60.02(5) provides Appellant any basis for
relief. Despite its broad language, Rule 60 .02(5) is construed narrowly. Federated Insurance Co.
v. Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000); NCNB National Bank of North Carolina v.
Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn.
Ct. App. 1992). The standards of Rule 60.02(5) are even more demanding than those applicable to
the other grounds for Rule 60.02 relief. NCNB National Bank of North Carolina v. Thrailkill, 856
S.W.2d at 154; Duncan v. Duncan, 789 S.W.2d 557, 564 (Tenn. Ct. App. 1990) (citing Tenn. Dept.
of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)). A party remains under a duty
to take legal steps to protect his or her own interests. NCNB National Bank of North Carolina v.
Thrailkill, 856 S.W.2d at 154; Magnavox Co. of Tenn. v. Boles & Hite Constr. Co., 583 S.W.2d
611, 613 (Tenn. Ct. App. 1979). Rule 60.02(5) is intended to provide relief only in cases of
overwhelming importance or in cases involving extraordinary circumstances or extreme hardship.
Federated Insurance Co. v. Lethcoe, 18 S.W.3d at 624. The use of Rule 60.02(5) still carries the
burden that “the motion shall be made within a reasonable time.” Tenn. R. Civ. P. 60.02.
         The Appellant argues that the trial court’s failure to give notice that the court was
contemplating dismissal of his cause of action is reason enough to justify relief from the operation
of the order of dismissal. In Tennessee Dept. of Human Services v. Barbee, 689 S.W.2d 863, 868
(Tenn. 1985), the Tennessee Supreme Court held that the failure of notice constituted excusable
neglect justifying relief from a default judgment. However, in that case, the defendant seeking relief
from the trial court’s order was personally free of fault. Id. That is not true in the present case.


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Between December 30, 1997, (when the Appellant received the Answer filed by the Defendant), and
September 20, 2001, (when the trial court ordered dismissal of the case), a period of more than three
years lapsed. During that time, Mr. Matthews was under a duty to take legal steps to protect his
interests. He did not. Our search of the record reveals neither excuse nor explanation for Mr.
Matthews’ delay in moving forward with the prosecution of his case. Furthermore, a period of two
years and eleven months elapsed from the time of the trial court’s order of dismissal before Mr.
Matthews filed his motion for relief from judgment. In total, this constitutes six years and seven
months between the time Shelby County filed its answer, and the filing of Mr. Matthews’ Rule 60.02
motion. Even where there has been a lack of notice upon a party regarding the intention to move for
a dismissal, Tennessee courts have not allowed that relief when the moving party has not been
diligent in protecting their own interest. See, e.g., White v. College Motors, Inc., 370 S.W.2d 476,
477 (Tenn. 1963) (holding that where almost five years had elapsed from issuance of a summons to
order of dismissal, and during such time the only actions taken were filing of declarations and
answers thereto, court could conclude that actions had been abandoned, and defendants were not
required to give notice of intention to move for a dismissal and it was not necessary to grant
plaintiffs a hearing before any action was taken on the motion); Hessmer v. Hessmer, 138 S.W.3d
901, 905 (Tenn. Ct. App. 2003) (affirming the trial court’s order to dismiss for failure to prosecute
even though plaintiff had not received prior notice of the intention to dismiss his action, because
plaintiff knew that the original summons had been returned unserved and let the case proceed for
seven months without making any effort to achieve service or move case forward). From the record,
we cannot conclude that the trial court's denial of Mr. Matthews’ Motion for Relief from Order
Dismissing the Case for Failure to Prosecute amounted to an abuse of discretion.

        For the foregoing reason, we affirm the Order of the trial court. Cost of this appeal are
assessed against the Appellant, Andre Matthews, and his surety.


                                              _________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE,
                                              WESTERN SECTION




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