                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


RONNIE BRADFIELD,                      )
                                       )
                                                                         FILED
             Plaintiff/Appellant,      ) Shelby Circuit No. 51964 T.D.
                                       )                                August 24, 1999
VS.                                    ) Appeal No. 02A01-9808-CV-00220
                                       )                               Cecil Crowson, Jr.
CITY OF MEMPHIS, et al,                )                             Appellate Court Clerk
                                       )
             Defendant/Appellee.       )


            APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                        AT MEMPHIS, TENNESSEE
                THE HONORABLE KAREN R. WILLIAMS, JUDGE




RONNIE BRADFIELD, pro se
Pikeville, Tennessee



ELBERT JEFFERSON, JR.
Assistant City Attorney
Memphis, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    Ronnie Bradfield (“Bradfield” or “Appellant”) appeals from the trial court’s order
dismissing Bradfield’s Writ of Error and/or in the Alternative Motion to Set Aside Judgment

of Dismissal.



                                I. Factual and Procedural History



            On February 19, 1993, Bradfield filed a Complaint of Personal Injury and Property

Damage in Circuit Court. Bradfield alleged that he was shot by a City of Memphis

policeman on February 21, 1992 without justification or reasonable cause. Bradfield was

incarcerated at the time of filing his complaint and remains incarcerated at this time.

Bradfield has proceeded pro se in this matter.



            In response to the Complaint, on or about April 20, 1993, the City of Memphis (“City”

or “Appellee”) filed a “Motion to Dismiss or, in the Alternative, for Summary Judgment; for

More Definite Statement; for Severance; to Strike Jury Demand; and to Strike Excessive

Ad Damnum.” No hearing was held on the Motion. Bradfield filed an “Entry of Address and

Location Correction” on January 3, 1994, indicating his move to a different correctional

facility.



            At some time prior to June 20, 1995, Bradfield moved the trial court for a

continuance of any hearings and requested an extension of time to respond to any

pleadings. On June 20, 1995, the City filed a “Motion and Memorandum in Opposition to

Plaintiff’s Motion for Continuance/Extension of Time; Motion to Show Cause” arguing,

among other things, that Bradfield had never responded to the City’s prior “Motion to

Dismiss.” Bradfield responded on or about July 5, 1995 with “Plaintiff’s Opposition to

Summary Judgment, Motion to Dismiss, Motion to Strike For Jury Demand, and Motion for

Excessive Ad Damnum.” Bradfield also filed an addendum to his motion for continuance

and/or extension of time. Again, none of the motions filed by Bradfield or the City was ever

heard or ruled upon by the trial court.

            Bradfield filed several motions in August of 1995. On August 11, 1995, Bradfield

filed “Submission of Plaintiff’s Instructions for Jury,” “Plaintiff Motion for Individual Jury Voir


                                                  2
Dire” and “Plaintiff Request for Judgment for Default by Defendants for Failure to Respond

and Serve Answers to Interrogatives [sic] and Request for Production of Documents.” On

August 18, 1995, Bradfield filed “Amendment to Plaintiff’s Opposition to Summary

Judgment.” On August 25, 1995, Bradfield filed “Plaintiff Request for Entry of Judgment by

Default of the Defendant(s).” None of these motions was heard or ruled upon by the trial

court.



         In May of 1996, Bradfield filed “Plaintiff’s Request for Summary Judgment and

Request for a Court Order to Compel the Defendant(s) to Answer Interrogative(s) [sic] and

to Produce Requested Copies of Documents” along with an Affidavit in support of his

motion. Bradfield also filed “Plaintiff’s Motion for ‘All’ His Motions and Petitions to be Ruled

Upon, Plaintiff’s Request that his Petition for ‘Writ of Habeas Corpus (Ad Testificandum)’

be Granted in this Action, Plaintiff’s Motions, that the Defendant, City of Memphis, be

Compel [sic] to Produced Documents, Answers to Interrogatories.” These motions were

not heard or ruled upon by the trial court.



         In May, 1996, Bradfield received a notice from the Circuit Court Clerk’s Office stating

that Bradfield’s cause of action was set for dismissal for lack of prosecution at 10:00 am

on July 1, 1996. In response, Bradfield mailed a certified letter to the clerk of the trial court

judge, the court clerk and also to the defendant. The letter was addressed to Judge

Williams, noting the notice of dismissal, noting his status as an inmate in the Tennessee

Department of Correction, and informing the judge that Bradfield had filed numerous

motions, none of which had been considered or ruled upon by the trial court. Bradfield

asked the trial court judge to advise him if he had carelessly overlooked something.

Bradfield requested that the dismissal for lack of prosecution be denied.



         On July 9, 1996, the trial court found that Bradfield failed to appear and give notice

of his intent to prosecute, and ordered the action dismissed with costs assessed against

Bradfield. Bradfield filed a timely notice of appeal and also filed “Plaintiff Request that ‘All’

Records and Transcripts be Forward [sic] to the Clerk of the Court of Appeals” and



                                                3
“Plaintiff Motion to Seat Court Cost in Abeyance.” The record was not forwarded to this

Court by the clerk of the trial court. Thereafter, Bradfield submitted to this Court for filing

a copy of the technical record and signed the certification which purports to certify the

authenticity of the record. Accordingly, on October 31, 1996, this Court found that the

record submitted did not comply with the Tennessee Rules of Appellate Procedure

because it was neither prepared by nor transmitted by the trial court clerk and this Court

ordered the technical record submitted by Bradfield be returned to him.



       On November 15, 1996, Bradfield filed a motion to compel the trial court clerk to

transmit the record on appeal to this Court. On November 22, 1996, City of Memphis filed

a motion to dismiss the appeal for Bradfield’s failure to file a transcript or otherwise comply

with the mandates contained in Rule 24 T.R.A.P. Bradfield did not respond to the City’s

motion and this Court therefafter ordered that the appeal be dismissed for Bradfield’s

failure to comply with the requirements of Rule 24 T.R.A.P.



       On February 10, 1997, Bradfield filed, in the trial court, a “Writ of Error and/or in the

Alternate [sic] Motion to Set Aside Judgment of Dismissal.” Bradfield requested a March

14, 1997 hearing date on the motion. On July 14, 1998, the trial court entered an order

finding that the trial court lacked jurisdiction to rule further on said matter and denied and

dismissed Bradfield’s motion. It is from that order of the trial court that Bradfield now

appeals.



                                 II. Trial Court Jurisdiction



       Bradfield, proceeding pro se, contends that the trial court erred in dismissing

Bradfield’s complaint for failure to prosecute. However, Bradfield’s appeal on the merits of

that issue was dismissed in an order dated December 31, 1996. This appeal involves only

the issue of whether the trial court erred in finding that the trial court lacked jurisdiction to

rule on Bradfield’s’s motion to set aside the judgment and denying and dismissing said




                                               4
motion.1



         In support of Bradfield’s “Writ of Error and/or in the Alternate [sic] Motion to Set

Aside the Judgment of Dismissal,” Bradfield cites Tenn. Code Ann. § 27-6-101, T.R.C.P.

59 and 60. We shall address each of these in turn.



         Tenn. Code Ann. § 27-6-101, namely “Right to Writ” states that a writ of error lies

from the final judgment of the court of general sessions to the circuit court or proper

appellate court, and from the circuit or chancery court to such appellate court. However,

with the promulgation of T.R.A.P. 3(d), the Supreme Court announced the abolition of the

writ of error as an appellate procedure. Haynes v. McKenzie Mem. Hosp., 667 S.W.2d 497

(Tenn.App. 1984). Title 27, Chapter 6 was effectively repealed so far as it was in conflict

with said rule. In any case, the writ of error was designed to appeal the case to a higher

court. It is not a procedure which would allow the trial court to review or re-open a final

judgment. The trial court did not err in failing to set aside the judgment based upon § 27-6-

101.



         Bradfield also cites to T.R.C.P. 59. Rule 59 deals with motions for new trials and/or

motions to alter or amend a judgment. To the extent that Bradfield’s motion could be

construed as a motion for new trial or to alter or amend the judgment, Bradfield’s motion

must fail as untimely. Rule 59 dictates that such motions must be filed and served within

thirty (30) days after judgment has been entered. Bradfield’s motion was filed on February

10, 1997, almost seven (7) months after the entry of the order of dismissal. Accordingly,



         1
          Brad field filed “Writ of Error and/or in the Alternate [sic] Motion to Set Aside Judg me nt of D ism issa l”
in whic h Bra dfield requ este d tha t the o rder of dis mis sal fo r lack of pro sec ution be se t asid e, tha t Brad field’s
complaint be reinstated, and that Bradfield be allowed to prosecute his complaint. Bradfield also filed a
memorandum of law in support of his m otion and a ttach ed a c opy of the o rigina l com plaint , a co py of h is
previous moti on en titled “P laintiff ’s Mo tion fo r ‘All’ His Motio ns an d Pe titions to be Rule d Up on, P laintiff ’s
Request that h is Pe tition fo r ‘W rit of Ha bea s Co rpus (Ad T estific and um )’ be G rante d in this Actio n, Pla intiff’s
Motions, that the D efenda nt, City of Me mph is, be Co mpe l [sic] to Produ ced D ocum ents, An swers to
Interroga tories,” and copies o f the orde r of dism issal and Bradfield’s letter to the trial co urt.
         The trial court’s order mistakenly addresses not only the “Writ of Error . . .” but also Bradfield’s
previously filed motion “[F]or all His Motions and Pe titions to be Ruled Upon . . .” Bradfield merely attached
this motion to his mem orandum in supp ort of the “Writ of Error . . .” and to the extent that the trial court
addressed thes e m otion s of B radf ield to geth er with his “Writ of Error . . .” the trial court was in error. The trial
court can only address the prior motions of Bradfield if it gra nts Brad field’s m otion to se t aside the judgm ent.
W e will address the trial court’s order to the extent that it ruled upon Bradfield’s “Writ of Error and/or in the
Alternate [sic] Motion to Set Aside Judgmen t of Dismissal.”

                                                              5
the trial court did not err in failing to alter, amend or set aside the judgment based upon

T.R.C.P. 59.



       Bradfield cites to T.R.C.P. 60 as authority to set aside the judgment. Rule 60

provides relief from judgments or orders based upon clerical mistakes, mistakes,

inadvertence, excusable neglect, fraud, etc. The time limit for filing a Rule 60 motion is

within a reasonable time, and for mistake, inadvertence, surprise, excusable neglect, or

fraud not more than one year after the judgment, order or proceeding was entered or

taken. T.R.C.P. 60.02. As Bradfield filed his motion approximately seven (7) months after

the order was entered, it appears that his motion was timely.



       The trial court appears to have taken the view that the trial court lacked jurisdiction

to entertain Bradfield’s motion based upon the prior appeal of the matter to this Court. We

find no Tennessee case law which speaks directly to the effect that a completed appeal

has upon a Rule 60 motion.



       There are Tennessee cases which discuss the correct procedure to be followed

when seeking relief under Rule 60 while an appeal is pending. In the case of Andrews

Distributing v. Oak Square at Gatlinburg, 757 S.W.2d 663, 667 (Tenn. 1988), the

Tennessee Supreme Court held that the time restraints applicable to Rule 60 motions are

those expressed in T.R.C.P. 60.02, without regard to the status of an appeal and held that

the trial court had jurisdiction to hear the plaintiff’s Rule 60 motion even when the appeal

was pending in the Court of Appeals.



       In the case of Spence v. Allstate Ins. Co., 883 S.W.2d 586 (Tenn. 1994), the

Tennessee Supreme Court changed its stance on this issue. As there is no guidance in

Rule 60.02 as to the proper court in which to file the motion once an appeal is pending, the

Supreme Court looked to cases interpreting Rule 60(b) of the Federal Rules of Civil

Procedure which is substantially similar to our Rule 60.02. The Supreme Court noted that

more courts seem to adhere to the view that the district court may consider the Rule 60(b)



                                              6
motion during the pendency of the appeal, and if the district court is inclined to grant the

motion, the movant may apply to the appellate court for an order of remand.



       Ultimately, the Tennessee Supreme Court declined to adopt a rule that would allow

a case to be pending in more than one court at a time. The Tennessee Supreme Court

found that the potential for either administrative oversight or for a misallocation of valuable

judicial resources engendered by allowing the trial court to entertain motions for relief from

judgment once an appeal is pending outweighs the consideration of judicial economy

promoted by allowing the trial courts to consider such motions. Spence at 596. The Court

held that a trial court has no jurisdiction to consider a Rule 60.02 motion during the

pendency of an appeal. Id. “If a party wishes to seek relief from the judgment during the

pendency of an appeal, he should apply to the appellate court for an order of remand.” Id.



       While we acknowledge that a trial court has no jurisdiction to consider a Rule 60.02

motion during the pendency of an appeal, the case before us differs from that situation. In

the case at hand, Bradfield filed his Rule 60 motion within the applicable time period found

in Rule 60.02 and after his appeal was concluded. The question before us is whether the

trial court had jurisdiction to entertain this motion after Bradfield’s appeal was concluded.



       We do find this issue addressed briefly by the Eastern section of this Court in a

footnote in the case of Ellison v. Alley, 902 S.W.2d 415 (Tenn.App. 1995). In Ellison,

vendor sued real estate brokers for breach of fiduciary duty in the sale of a farm. On the

original appeal, the Tennessee Supreme Court held that the brokers were not entitled to

commission. Following remand, the brokers moved to set aside the adverse judgment on

grounds that vendor committed fraud in securing judgment against them. The motion was

denied as untimely as it was filed more than one year after the challenged judgment was

entered.



       In a footnote in Ellison, the Eastern section of this Court discussed the fact that the

case was pending on appeal during the year following entry of the judgment, and that



                                              7
accordingly the trial court had no jurisdiction to consider a Rule 60 motion during the

pendency of the appeal. Ellison at 418. The Court then stated that said situation does not

affect the requirement that a motion based upon fraud be filed within one year of judgment

from which relief was sought. Id. The party seeking relief under Rule 60 could have applied

to the appellate court for an order of remand. Id.



       Importantly, the Court then went on to say that it is immaterial that first the Court of

Appeals and then the Supreme Court modified the trial court’s earlier judgment. Neither

of the appellate courts modified the basic holding of the trial court and the one attacked in

the Rule 60.02 motion. Ellison at 418. This Court then stated, “We do not address the

issue of when a Rule 60.02 motion would need to be filed when an appellate court

substantially modifies, by reversal or otherwise, the lower court’s judgment.” Id.



       While the Court in Ellison did not specifically address the issue of whether a trial

court lacks jurisdiction to hear a Rule 60 motion after a completed appeal, it specifically

noted that it was immaterial that the case had proceeded through the Court of Appeals and

Supreme Court and modified by both (although not modifying the basic holding). It does

not appear that the Court was troubled by the fact that the case had proceeded through

the Court of Appeals and Supreme Court. Additionally, although the holding in Andrews,

as to jurisdiction of the trial court while an appeal is pending, was ultimately overruled, we

still have the language from the Tennessee Supreme Court in that case that the time

restraints applicable to Rule 60 motions are those expressed in T.R.C.P. 60.02, without

regard to the status of an appeal.

       In federal court, this issue was been decided in favor or continuing jurisdiction in the

district court to hear a Rule 60(b) motion after an appeal. In 1976, in Standard Oil Co. of

California v. U.S., 97 S.Ct. 31, 429 U.S. 17, 50 L.Ed.2d 21 (1976), the Supreme Court held

that the district court may entertain a Rule 60(b) motion after an appeal without leave of

the appellate court. Of course, the district judge is not free to ignore the decision of the

appellate court so far as it goes, but he is free to consider whether circumstances not

previously known to either court compel a new trial. 97 S.Ct.. at 32.



                                              8
       We note, however, that the circumstances of this case make our decision somewhat

easier. In the case at hand, the appeal to this Court was dismissed on technical grounds,

and did not involve the merits of the case. The order of this Court dismissing Bradfield’s

appeal neither encompassed nor disposed of any of the issues raised by Bradfield in his

Rule 60 motion.



       In federal court, it appears that even before the Supreme Court decided in favor or

continuing jurisdiction in the district court to hear a Rule 60(b) motion after an appeal, the

trial court had continuing jurisdiction where the appeal was dismissed on technical

grounds. As explained in 7 Moore's Federal Practice (1972 ed.), 60.30 [2], at page 424:

              And first, we shall consider the case where the appeal is
              dismissed, without a decision on the issues. * * * Since there
              is no problem of deviating from the appellate court's mandate
              and since the appeal no longer pends, the district court has the
              power to entertain a timely motion for relief under 60(b).



       Based upon the current stance of the federal court interpreting the similar F.R.C.P.

60, and upon the language in the aforementioned Tennessee cases, we hold that the trial

court retains jurisdiction to rule upon a timely T.R.C.P. 60 motion when an appeal has been

dismissed on procedural grounds by an appellate court. As it is not necessary for the

disposition of this case, we decline to decide the larger issue of the effect a completed

appeal on the merits has upon the trial court’s jurisdiction to entertain a timely T.R.C.P. 60

motion.

       For the foregoing reasons, the trial court erred in finding that it had no jurisdiction

to entertain Bradfield’s motion and erred in dismissing said motion to the extent that

Bradfield sought relief under Rule 60.



                                      III. Conclusion



       The judgment of the trial court is hereby reversed and remanded for proceedings

consistent with this opinion. Costs of this appeal are taxed Appellee, for which execution

may issue if necessary.


                                              9
                   HIGHERS, J.



CONCUR:




FARMER, J.




LILLARD, J.




              10
