                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    January 9, 2003 Session

  JAMES H. RANDALLS v. STANLEY G. HOPP, M.D. AND TENNESSEE
                ORTHOPAEDIC ALLIANCE, P.A.

                      Appeal from the Circuit Court for Davidson County
                          No. 97C-1444     Walter C. Kurtz, Judge



                     No. M2002-00771-COA-R3-CV - Filed April 24, 2003


This is an appeal from the denial of a motion to set aside dismissal of the action for failure to comply
with the seventh scheduling order entered during the five year pendency of this case. Because the
trial court clearly acted within its discretion in view of the history of the case, we affirm.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., J., and
WILLIAM B. CAIN , J., joined.

John M. Cannon, Goodlettsville, Tennessee, for the appellant, James H. Randalls.

Richard K. Smith, Kathleen W. Smith, Nashville, Tennessee, for the appellees, Stanley G. Hopp,
M.D. and Tennessee Orthopaedic Alliance, P.A.

                                              OPINION

        This is an appeal from the trial court’s denial of plaintiff’s Tenn. R. Civ. P. 59 motion to set
aside the court’s prior dismissal of the lawsuit for failure to comply with the most recent scheduling
order. In denying the motion, the trial court found that the case arose from incidents occurring in
1996, was originally filed in May of 1997, had been previously dismissed in January of 2000 and
then reinstated, and six previous scheduling orders had been filed, none of which were met by the
plaintiff. The court found that the case had been pending too long without prosecution by the
plaintiff, that the plaintiff had failed to comply with the court’s orders, and, consequently the case
had been properly dismissed.

        The record fully substantiates the trial court’s findings. The plaintiff filed his complaint on
May 6, 1997, alleging that Dr. Hopp provided reports regarding his physical condition after an on-
the-job injury to his employer and that Dr. Hopp had not examined or treated him. The plaintiff
alleged these erroneous reports resulted in denial of certain disability benefits. Tennessee
Orthopedic Alliance was alleged to be liable as Dr. Hopp’s employer or principal. Defendants
answered on July 25, 1997.

        On June 10, 1998, the court sent notice the action would be dismissed because it had been
pending for over a year with no activity. This resulted in the first agreed scheduling order, and a
second agreed scheduling order was filed December 31, 1998. This order required that before
August 2, 1999, the parties agree to a trial date or file a motion to set the trial. Neither was done.
On January 12, 2000, the trial court dismissed the action pursuant to Rule 18.02 of the Local Rules
of Practice for want of prosecution. Plaintiff requested that the order of dismissal be set aside and
stated that all written discovery had been completed, the parties’ depositions had been taken, and the
deposition of a final medical witness was set for two weeks later. With the completion of that
deposition, Plaintiff asserted, the case should be ready for trial.

        The trial court set aside the dismissal and a third agreed scheduling order was entered
February 25, 2000, primarily setting deadlines for discovery. These deadlines were extended by an
agreed order entered May 10, 2000. On July 25, 2000, the plaintiff moved to extend the deadline
for deposing fact witnesses because some of those witnesses were located out of state. A joint
agreed scheduling order was entered which extended the deadlines for deposition of fact and expert
witnesses. The trial court added a handwritten notation that “a trial date shall be procured by May
1, 2001”. Another joint agreed scheduling order was filed extending the discovery deadlines but
retaining the deadline for procuring a trial date.

         Six months later, on April 6, 2001, plaintiff’s counsel filed a motion to withdraw. By order
dated May 7, 2001, the motion was granted. Two days later, plaintiff’s new primary counsel filed
a motion to extend the existing scheduling order due to withdrawal of co-counsel. An agreed order
extending the scheduling order was entered on June 18, 2001, which required, in part, that an order
be entered setting the matter for trial before December 21, 2001. This was the last scheduling order;
plaintiff failed to comply; and the trial court dismissed the case on January 10, 2002 because of that
failure.

         We review a trial court’s decision on a Rule 59 motion to alter or amend or a Rule 60 motion
for relief from judgment under an abuse of discretion standard. Federated Ins. Co. v. Lethcoe, 18
S.W.3d 621, 624 (Tenn. 2000); Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993);
Bradley v. McCleod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998), overruled on other grounds in
part by Harris v. Chern, 33 S.W.3d 741, 744 (Tenn. 2000).

       Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long
       as reasonable minds can disagree as to the propriety of the decision made.” A trial
       court abuses its discretion only when it “applies an incorrect legal standard, or
       reaches a decision which is against logic or reasoning or that causes an injustice to
       the party complaining.” The abuse of discretion standard does not permit the
       appellate court to substitute its judgment for that of the trial court.


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Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

        Based upon the record before us, demonstrating as it does the many accommodations in
scheduling and an earlier setting aside of dismissal for failure to prosecute, we cannot find any abuse
of discretion by the trial court.

       The decision to deny the plaintiff’s motion to set aside the judgment of dismissal is affirmed.
Costs are taxed to the appellant, James H. Randalls, for which execution may issue if necessary.



                                                       ___________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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