             IN THE COURT OF APPEALS OF TENNESSEE
                                                                                         FILED
                               AT KNOXVILLE                                               July 28, 1999

                                                                                        Cecil Crowson, Jr.
                                                                                         Appellate Court
WILLEM EDUARD BOK,                          )   C/A NO. 03A01-9812-BC-00426                    Clerk

                                            )
       Claiman t-Appellan t,                )   CLAIMS COMMISSION
                                            )   EASTERN DIVISION
v.                                          )
                                            )   HON. MICHAEL S. LACY,
STATE OF TENNESSEE,                         )   COMMISSIONER
                                            )
       Respondent-Appellee.                 )   REVERSED AND REMANDED




RON ALD J. BERK E, BER KE, BE RKE & BE RKE , Chattano oga, for C laimant-
Appellan t.

PAUL G. SUM MERS, Attorney General and Reporter and
MAR Y E. W ALK ER, As sistant Attorn ey General, N ashville, for R esponde nt-
Appellee.




                                      O P I N IO N


                                                           Franks, J.


               The claimant appealed from the Claims Commissioner’s Order of

Dismissal of his claim.

               The chronological history of this case is material, and is as follows:

               Complaint filed June 8, 1995.

               Motion to Dismiss filed December 8, 1995 on the basis that the
               Commission lacked subject matter jurisdiction.

               Motion to Set was filed on Jun e 2, 1997 b y claimant.

               Respo nse to M otion to Set wa s filed o n June 5, 1997 .

The Commissioner entered an Order of Dismissal on June 19, 1997, which provided

in pertinent p art:

               Pursuant to Tenn essee Claims Co mmission Rule # 0310-1-1-01(5)(c),
               failure to make a timely response to a motion essentially constitutes a
               waiver of any objection to the motion. Responses to motions shall be
               made no later than fifteen (15) days after service of the motion, . . . and
               the State’s Motion [to dismiss] was filed December 8, 1995. More than
               a year and a half has passed during which a response has not been made.

                       Therefore, it is appropriate to grant the State’s Motion.

               On July 16, 1 997, the claim ant filed a M otion for a N ew Trial a nd to

Reconsider on the grounds that he did not receive the Motion to Dismiss and/or for

Summary Judgm ent from the State, and tha t he did not receive a cop y of the State’s

response to the claimant’s Motion to Set. The affidavit of the attorney for the

claimant w as attached to the Mo tion, which states in pertine nt part:

                     He furth er states that he never rece ived the Sta te’s Motio n to
               Dismiss and/or for Summary Judgment and also never received a
               response to his Motio n to Set.

In respons e to this M otion, the C ommissio ner denied any relief stating:

               Upon a review of the procedural history of this claim, and upon a
               consideration of the Commission’s policy of making every effort to be
               consistent in the treatment of parties with respect to procedural and
               substantive matters, it would be inappropriate to grant Mr. Bok’s Motion
               to Reconsider.

The re fusal to grant a n ew trial r ests larg ely in the d iscretion of the T rial Judg e.

Eastman v. Boyd, 605 S.W.2d 237 (Tenn. App. 1979), but with due deference to the

Commissioner, the Commissioner failed to exercise his discretion in this case as

evidence d by his rote an alysis in uphold ing the dism issal.

               The claimant’s attorney’s sworn statement that he did not receive copies

of the pleadings or notice, stands unrefuted on this record, and it was abuse of the

Trial Court’s discretion to dismiss the a ction on the basis that Claims Commission’s

rules had been violated b ecause the claimant ha d not responded to the defendant’s

motion in a timely manner.

                Where a party has no a ctual notice of a critical date in a court

proceedin g, the circum stances m ake out a c ase of mis take, surprise o r excusab le


                                                2
neglec t. Campbell v. Archer, 555 S .W.2d 110, 11 3 (Ten n. 1977 ). Also see this Court’s

case of Tennessee Bank v. Lay, 609 S.W.2d 525 (Tenn. App. 1980), wherein we noted

that whenever there is reasonable doubt as to whether a default judgment should be set

aside, the motion should be granted to reinstate.

                 We reverse the Commissioner’s Order of Dismissal and remand to the

Commission to rule on the Motion to Dismiss after the claimant has had an

opportunity to respond within the time established by the Rules of the Commission.

                 We are c onstrained to note that the time delays in the procedu res in this

record do not reflect favorably upon the parties or the Commissioner. The defendant

did not respon d to the c ompla int for six month s, and th en filed a Mo tion to D ismiss.

The Commissioner did not purport to act upon the Motion until some eighteen months

after the Motion had been filed, and claimant had not timely moved to have the case

set for trial.

                 We reverse the judgment of the Commissioner and remand with cost of

the appea l assessed to th e defend ant.




                                              __________________________
                                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.


___________________________
William H. Inman, Sr.J.




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