PAUL KEVIN NELSON,                   )
                                     )
      Plaintiff/Counter-Defendant/   )
      Appellee,                      )
                                     )    Davidson Circuit
VS.                                  )    No. 96C-1861
                                     )
THE APPLICATION GROUP, INC.,         )
                                     )    Appeal No.
                                                             FILED
      Defendant/Counter-Plaintiff/   )    01-A-01-9703-CV-00137
      Appellant.                     )                   November 14, 1997

                                                    Cecil W. Crowson
                                                  Appellate Court Clerk
                 IN THE COURT OF APPEALS OF TENNESSEE
                      MIDDLE SECTION AT NASHVILLE


           APPEAL FROM THE DAVIDSON FIFTH CIRCUIT COURT
                     AT NASHVILLE, TENNESSEE


                  HONORABLE WALTER C. KURTZ, JUDGE


Philip D. Irwin, #12128
NEAL & HARWELL, PLC
2000 First Union Tower
150 Fourth Avenue North
Nashville, TN 37219-2498
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE


W. Reece Willis, III, #15085
WILLIS & KNIGHT
215 Second Avenue, North
Nashville, TN 37201
ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT


               REVERSED, VACATED AND REMANDED.



                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION




CONCUR IN SEPARATE OPINIONS:

WILLIAM C. KOCH, JR., JUDGE
WALTER W. BUSSART, JUDGE
PAUL KEVIN NELSON,                                 )
                                                   )
       Plaintiff/Counter-Defendant/                )
       Appellee,                                   )
                                                   )     Davidson Circuit
VS.                                                )     No. 96C-1861
                                                   )
THE APPLICATION GROUP, INC.,                       )
                                                   )     Appeal No.
       Defendant/Counter-Plaintiff/                )     01-A-01-9703-CV-00137
       Appellant.                                  )




                                      OPINION

       This appeal involves the action of the Circuit Court in respect to appeals from two

judgments of the General Sessions Court which were handled under a single caption and docket

number in the Circuit Court and have been certified to this Court as a single appeal.



       The defendant-counter plaintiff, The Application Group, Inc. (hereafter “TAG”) has

appealed from the dismissal of its counter complaint. The plaintiff, Paul Kevin Nelson, has not

appealed, but has filed his brief in this Court.



       On January 10, 1996, plaintiff filed in General Sessions Court a civil warrant charging

TAG with:

                      conversion, breach of contract, and breach of quasi-
               contract for money paid on behalf of defendant.


       The warrant was numbered 96GC546 and was served upon TAG, a nonresident

corporation through the Secretary of State. On May 1, 1996, the General Sessions Court rendered

judgment in favor of the plaintiff, Paul Kevin Nelson, and against the defendant, TAG, for

$1,693.54. On May 9, 1996, TAG’s appeal was granted to the Circuit Court on bond; and, on

May 16, 1996, the warrant was received by the Circuit Court Clerk.



       On March 11, 1996, the defendant, TAG, filed in General Sessions Court a civil warrant

against Paul Kevin Nelson for:

                                                   -2-
              amounts due and owing on a sworn account in the amount of
              $3,600.00 for breach of the attached contract, quasi contract
              and quantum meruit.


       The warrant was numbered 96GC546CC. No sworn account was attached to the

warrant.



       On May 1, 1996, the General Sessions Court entered a judgment in favor of TAG and

against Paul Kevin Nelson for $-0- and costs.



       On May 9, 1996, the General Sessions Judge granted TAG’s appeal to the Circuit Court

upon Cost Bond.



       On May 16, 1996, the warrant was filed in Circuit Court.



       On June 24, 1996, under the caption of TAG v. Nelson (the countersuit of TAG), TAG

filed in Circuit Court a motion for an order setting “this case” for trial. The caption of the

motion included the number 96C1861 and the following notice:

               This motion will be presented to the Court for a ruling at 9:00
               A.M. on the 5th day of July, 1996. You are advised that the
               failure to file and serve a timely written response to the motion
               may result in the motion being granted without further hearing.


       On December 26, 1996, the Circuit Court entered the following order:


               NELSON, PAUL KEVIN,

                       Plaintiff,              No. 96C1861

               v.

               APPLICATION GROUP, INC., THE,

                       Defendant.




                                             -3-
                                  ORDER OF DISMISSAL

                        It appears to the Court that this cause has not been set
               for trial within forty-five (45) days.

                      Therefore, in accordance with Rule 19(b) of Local
               Rules of Practice of the Courts of Record of Davidson County
               and Rule 41.02 Tennessee Rules of Civil Procedure this appeal
               should be dismissed.

                       It is therefore, ORDERED that the judgment of the
               General Sessions Court is hereby made a judgment of the
               Circuit Court.

                      Further, the costs of this cause are assessed to the
               Appellant, and/or its surety for which execution may issue, if
               necessary. (Emphasis supplied)


       Local Rule 19 of the Trial Court reads as follows:


                (a)     It shall be the duty of the parties and/or their attorneys
                to determine when a case appealed from the General Sessions
                Court is filed with the Circuit Court Clerk.

                (b)     The case shall be set for trial within forty-five (45)
                days. If the case is not set within forty-five (45) days, an
                order will be entered making the judgment of the General
                Sessions Court the judgment of the Circuit Court with costs
                taxed to the appellant. At the time the appeal is perfected in
                the Clerk’s Office, the clerk shall give the appellant or his or
                her attorney written notice of this rule.

                (c)    The signature of an attorney or party to an appeal from
                General Sessions Court shall constitute a certificate under
                T.R.C.P. 11. [As amended by order entered November 21,
                1994, effective January 1, 1995.]


       On January 2, 1997, TAG moved the Circuit Court to set aside its December 26, 1996,

order pursuant to TRCP Rules 60.02 and 59.04, supported by affidavit that motion to set was

filed on June 24, 1996, with notice of hearing thereon July 5, 1996. The affidavit stated further:

                        Comes the defendant/counter-plaintiff, The
               Application Group, Inc., pursuant to Tennessee Rule of Civil
               Procedure 60.02 and/or 59.04, and moves this Court to set
               aside its Order of Dismissal entered December 20, 1996.
               Pursuant to Tennessee Rule of Civil Procedure 60.02, the
               Court, under such terms that are just, may relieve a party from
               a final judgment upon a showing of mistake, inadvertence or
               excusable neglect. As demonstrated by the attached Affidavit
               of defendant/counter-plaintiff’s counsel, W. Reese Willis, III,
               those grounds exist here.

                                              -4-
                      Wherefore, defendant/counter-plaintiff prays the Court
              grant this motion and set aside the Order of Dismissal.



       Paul Kevin Nelson filed a memorandum in opposition to the motion.



       On January 21, 1997, TAG filed the following notice of appeal:

                      Pursuant to Rule 4 of the Tennessee Rules of
              Appellate Procedure, notice is hereby given that the
              Defendant/Counter-Plaintiff, The Application Group, Inc.,
              appeals to the Tennessee Court of Appeals, from the trial
              court’s Order of Dismissal entered in this action on the 20th
              day of December, 1996, as well as the trial court’s denial of
              Defendant/Counter-Plaintiff’s Motion to Set Aside pursuant
              to Tenn. R. Civ. P. 60.02 and/or 59.04.


       On January 24, 1997, the Circuit Court overruled the motion of TAG to set aside the

dismissal under Rules 60.02 and 59.04.



       On January 29, 1997, the Circuit Court entered the following order:

              THE APPLICATION GROUP, INC.,

                      Defendant/Counter-Plaintiff,
                                          No. 96C1861
              v.

              PAUL KEVIN NELSON

                      Plaintiff/Counter-Defendant

                                          ORDER

                      This cause came on to be heard on the 17th day of
              January, 1997, upon the Defendant/Appellant’s Motion to Set
              Aside this Court’s Order of Dismissal, pursuant to Tenn. R.
              Civ. P. 59.04 and 60.02, dated December 20, 1996. Upon said
              Motion, argument of counsel heard for the respective parties
              in Court on that date, and the entire record in this cause, it is
              hereby,

                      ORDERED, ADJUDGED AND DECREED that:

                       1.       This matter, appealed from the Davidson
              County General Sessions Court on or about May 16, 1996, was
              not set for trial within forty-five (45) days as required by Rule
              19(b) of the Davidson County Local Rules of Practice;

                                            -5-
                         2.     In accordance with Local Rule 19(b), this Court
                  entered an Order on December 20, 1996, dismissing the
                  Defendant’s appeal and making the judgment of the General
                  Sessions Court the judgment of this Court;

                         3.      The Defendant’s Motion to Set Aside this
                  Court’s Order of December 20, 1996 is not well taken and is
                  hereby denied; and

                         4.       This Court’s Order of December 20, 1996, shall
                  remain in full force and effect.


           On February 3, 1997, TAG filed notice pursuant to TRAP Rule 24(d) that no transcript

or statement of the evidence would be filed.



           The technical record was received by the Clerk of this Court on March 20, 1997, and filed

on March 31, 1997; and the parties were notified that oral argument, if requested, would be

heard on September 29, 1997.



           On June 26, 1997, the Clerk of this Court received and filed a “supplemental record”

containing the following:

           1.     Agreed order entered by the Trial Court on June 25, 1997, and reading as follows:

                         It appearing to the Court that the parties are in
                  agreement that the attached documents should have been
                  included in the record on appeal in this case as attachments to
                  the General Sessions Civil Warrant filed by The Application
                  Group, Inc. and that the Clerk should be directed to prepare
                  and transmit to the Clerk of the Court of Appeals a
                  supplemental record to include said documents.


           2.     An affidavit of Karen Beaman filed with the Trial Clerk on June 25, 1997,

stating:

                        3.      I am thoroughly familiar with and
                  knowledgeable of the amount owed to The Application
                  Group, Inc. by Kevin Nelson, a former employee of the
                  company.

                          4.      To the best of my knowledge, information and
                  belief, Mr. Nelson properly owes The Application Group, Inc.
                  Three Thousand Six Hundred Dollars ($3,600.00). This
                  Affidavit is being given in support of the counter-complaint
                  filed by The Application Group, Inc. against Kevin Nelson,

                                                -6-
                 styled The Application Group, Inc. v. Paul Kevin Nelson,
                 General Sessions court for Davidson County, Tennessee, Case
                 No. 96CG54CC.


          3.     A letter from TAG to Paul K. Nelson dated February 1, 1995.



          4.     A letter from TAG to Paul K. Nelson dated December 14, 1995.



          TAG, the counter-plaintiff/appellant has presented the following issues for review on

appeal:

                 1.      Whether issuance of an order of dismissal based upon
                 an event over which litigant has no control is arbitrary,
                 capricious and a violation of procedural due process?

                 2.     Whether Rule 60.02 of the Tennessee Rules of Civil
                 Procedure provides relief for a final judgment upon a showing
                 of mistake, inadvertence or excusable neglect?

                 3.      Whether the Trial Court abused its discretion in failing
                 to grant appellant’s motion to set aside the order of dismissal
                 pursuant to Rules 60.02 and/or 59.04 when appellant made a
                 proper showing of mistake, inadvertence and/or excusable
                 neglect.


          Paul Kevin Nelson, the plaintiff/counter-defendant/appellee presents the following

issues:

                 A.     Whether Rule 19 of the Davidson County Local Rules
                 of Practice conflicts with the substantive law of the State of
                 Tennessee.

                 B.     Whether the Trial Court abused its discretion in failing
                 to grant the Appellant’s Motion to Set Aside its Order of
                 Dismissal in the underlying action.


          Appellant first argues that the Trial Judge erred in overruling its motion for relief

under TRCP Rule 60.02 which reads as follows:

                         On Motion and upon which 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...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

                                               -7-
                the judgment, order or proceeding was entered or taken.
                (Emphasis supplied)


        This Court has determined that The Application Group did not cause its lawyer’s failure

to comply with Rule 19; that the lawyer complied with Rule 19 by timely filing a motion to set;

that, under the rule, the case was due to be set; that Paul Kevin Nelson did not object to the

motion to set and never complained of any delay in setting the case; that Paul Kevin Nelson will

not be prejudiced by a delayed trial; and that, under the circumstances of this case, The

Application Group should not be penalized for its lawyer’s failure to promptly file an order

confirming that his motion to set had been granted.



        Dismissal is a drastic remedy when the party itself is not at fault, and Rule 60.02(1) relief

should be granted when the lawyer realizes his oversight and takes steps to correct it.



        The judgment of the Trial Court overruling the Rule 60.02(1) motion is reversed and

vacated, and the cause is remanded to the Trial Court for further proceedings in conformity with

this opinion. Costs of this appeal are taxed equally, that is, each party shall pay one-half of same.



                  REVERSED, VACATED AND REMANDED.



                                                _______________________________________
                                                HENRY F. TODD
                                                PRESIDING JUDGE, MIDDLE SECTION




CONCUR IN SEPARATE OPINIONS:

WILLIAM C. KOCH, JR., JUDGE
WALTER W. BUSSART, JUDGE




                                                -8-
