                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                       July 20, 2004 Session

  DWAYNE S. BYRD, JULIE DICHTEL BYRD, J. WILSON ROOP, JR.,
 Individually and as Representatives of Getwell West Residents Association;
  GETWELL WEST RESIDENTS ASSOCIATION, as Representatives of
   Property Owners within the Annexed Area; GERALD D. McLEMORE,
    WYNN PATTON, ROXIE BOYCE, WILLIAM C. PORTER, HARRY
  GILLESPIE, WENDELL B. WILLIAMS, MATTIE BOOKER, MABLE
   DURHAM, GENE CUMMINGS, JIM GAITHER, BERICE JOHNSON,
    CAROLE H. NELLUMS, and ROBERT E. BUIE, Individually and as
              Representatives of their Respective Subdivisions
                                      v.
    CITY OF MEMPHIS; RICHARD C. HACKETT, Mayor of Memphis;
    MEMPHIS CITY COUNCIL, Composed of Present Members: A. D.
ALISSANDRATOS, BILL DAVIS, OSCAR H. EDMONDS, JR., DR. JAMES
FORD, MICHAEL A. HOODS, FLORENCE LEFFLER, TOM MARSHALL,
 MARY ROSE McCORMICK, JIMMY MOORE, RICKEY PEETE, JACK
  SAMMONS, BARBARA SONNENBURG, PAT VANDER SCHAAF, and
   Retiring Members BILLY HYMAN, ROBERT B. JAMES, MINERVA
      JOHNICAN, J. O. PATTERSON, JR., and WILLIAM GIBBONS

                     An Appeal from the Chancery Court for Shelby County
                           No. 95392-1   Walter Evans, Chancellor


                   No. W2003-01943-COA-R3-CV - Filed November 15, 2004


This case involves a dismissal for failure to prosecute. In January 1988, the plaintiff residents filed
this lawsuit against the defendant municipal officials for allegedly enacting an unconstitutional and
unreasonable annexation ordinance. In 2003, after the case had been on the trial court’s docket for
fifteen years with little activity, the trial court clerk filed a motion to dismiss for lack of prosecution.
In June 2003, the trial court granted the clerk’s motion and dismissed the case. The plaintiff
residents now appeal. We affirm, finding that the trial court did not abuse its discretion in
dismissing the case.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., and
DAVID R. FARMER , J., joined.

Dwayne S. Byrd and Julie D. Byrd, Memphis, Tennessee, for the appellants.

Jonathan C. Hancock, Ashlee B. Ellis, and Sara Hall, Memphis, Tennessee, for the appellee, City
of Memphis.

                                                     OPINION

         In December 1987, Defendant/Appellee Memphis City Council passed upon final reading
Ordinance 3712, which purported to annex an area of southwest Memphis, Tennessee, commonly
known as “Getwell West.” On January 19, 1988, the above-named Plaintiffs/Appellants
(collectively, “Plaintiffs”), individuals and representatives of individuals living in the annexed area,1
filed a lawsuit against Defendants/Appellees the City of Memphis, its Mayor at the time, Richard
C. Hackett, the Memphis City Council and the individually named members of the City Council at
the time (collectively “City”). The lawsuit sought a declaratory judgment that the annexation was
unconstitutional. The Plaintiffs also sought relief under the quo warranto provisions of Tennessee
Code Annotated § 6-51-103, which allow citizens to contest an annexation that “reasonably may not
be deemed necessary for the welfare of the residents and property owners of the affected territory and
the municipality as a whole. . . .” Tenn. Code Ann. § 6-51-103(a)(1)(A) (1998). On July 26, 1988,
the trial court granted the Attorney General’s motion to intervene to defend the constitutionality of
the annexation statutes at issue. Since that date in 1988, the record shows virtually no activity in the
case.

         On at least two occasions, the clerk of the trial court moved to dismiss the case for lack of
prosecution. On December 28, 1993, after the case had been on the court’s docket nearly six years
with little activity, the trial court entered an order denying the clerk’s first motion to dismiss “upon
good cause shown that the Clerk’s motion to dismiss should be denied.” After the trial court clerk
filed a second motion to dismiss for lack of prosecution almost two years later, on October 30, 1995,
the trial court denied this second motion, again on the basis that “good cause [was] shown that the
motion should be denied.”2




         1
          The caption of the case lists 17 Plaintiffs. However, the first two named Plaintiffs, Dwayne and Julie Byrd
(“the Byrds”), are now counsel to the Plaintiffs and are not real parties in interest. The suit was originally filed when
the Byrds were law students and residents of Getwell W est. Subsequently, the Byrds moved out of Getwell W est,
but entered appearances on behalf of the other Plaintiffs after they became licensed to practice law.

         2
         On November 14, 1995, the trial court entered an order dismissing the case for lack of prosecution.
Apparently, however, that order was inadvertently entered, and two weeks later the trial court set that order aside.

                                                          -2-
         Sometime in 2003, after the case had lain fallow on the trial court’s docket for some fifteen
years, the trial court clerk filed a third motion to dismiss for lack of prosecution. On June 27, 2003,
the trial court held a hearing on the matter. No transcript of the hearing was made. However, the
appellate record includes a “Statement of Proceedings held June 27, 2003” (“Statement”).3
According to the Statement, the Plaintiffs advised the trial court that, in the previous two instances
in which motions were filed by the clerk to dismiss for lack of prosecution, the Defendants had
declined to agree to a trial setting, saying that they were not ready for trial. The Plaintiffs claimed
that this was the basis for the trial court’s earlier denial of the clerk’s motions to dismiss. The
Statement also shows that the Plaintiffs argued to the trial court that, in an annexation suit of this
nature, the burden of going forward and the burden of proof is on the Defendants. Despite these
arguments, the trial court dismissed the case in an oral ruling from the bench, and later entered an
order consistent with this oral ruling. From that order, the Plaintiffs now appeal.

        On appeal, the Plaintiffs argue that the trial court erred in dismissing their case for lack of
prosecution because the case involves issues of great public importance. In addition, the Plaintiffs
argue that the trial court abused its discretion because any delay in the prosecution of this case was
not the fault of the Plaintiffs. Rather, they argue, the failure of the case to move forward was actually
the fault of the Defendants. The Plaintiffs argue that it was “Defendants and not Plaintiffs [who]
have failed to prosecute this case . . . .”

          A trial court’s decision to dismiss an action for lack of prosecution is within the trial court’s
sound discretion, and the decision will be affirmed on appeal absent an abuse of that discretion.
Osagie v. Peakload Temp. Servs., 91 S.W.3d 326, 329 (Tenn. Ct. App. 2002). An abuse of
discretion has occurred when the trial court has “applied an incorrect legal standard, or reached a
decision which is against logic or reasoning that caused an injustice to the party complaining.” State
v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.
1996)). Thus, the trial court’s decision to dismiss for failure to prosecute will not be reversed unless
the trial court has “acted unreasonably, arbitrarily, or unconscionably.” Hodges v. Attorney General,
43 S.W.3d 918, 921 (Tenn. Ct. App. 2000). The appellate court is not permitted “to merely substitute
its judgment for that of the trial court.” Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003). We
are mindful, however, that the power to dismiss a case for lack of prosecution “should be exercised
sparingly and with great care.” Hodges, 43 S.W.3d at 921.

        Pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, the trial court may, on its
own motion, dismiss a case for failure to prosecute. Id. “This rule is necessary to enable the court
to manage its own docket, and to protect defendants against plaintiffs who are unwilling to put their
claims to the test, but determined to subject them to the continuing threat of an eventual judgment.”
Osagie, 91 S.W.3d at 329.


        3
          The Plaintiffs claim that they later filed a First Amended Statement of Proceedings, which was omitted
from the record on appeal. The Plaintiffs stated that the amended Statement changes only typographical errors
involving misidentification of the parties (e.g., “plaintiff” and “defendant”), with no substantive changes. The
amended Statement was never added to the appellate record.

                                                        -3-
         The Plaintiffs first argue that the trial court abused its discretion in dismissing the case
because of the “great public importance” of this case. Assuming arguendo that the case is one of
great public importance, the Plaintiffs have cited to no authority indicating that such cases are
considered differently from other cases on trial court’s dockets. Indeed, it could be argued that it is
more imperative that a case of great public importance be resolved in a timely manner. The record
in this case shows that the case languished on the trial court’s docket for over fifteen years with little
or no activity. In an effort to manage the court’s docket, the trial court clerk twice filed motions to
dismiss the case, once after six years and again after seven and a half years. At oral argument,
counsel for the Plaintiffs sought to explain that the case was not dismissed at the earlier stages
because the Plaintiffs deferred their right to a trial at the request of the City. This assertion has no
support in the record, and therefore cannot be considered in this appeal. Regardless, the trial court
twice resuscitated a case that was on life support, and the Plaintiffs were certainly aware that
continued inaction would result in dismissal. Despite this, the record shows no further efforts by the
Plaintiffs to prosecute their case during the ensuing eight years. Whether or not the burden of proof
at trial would have been on the Defendants is irrelevant.4 It was the Plaintiffs’ burden to prosecute
their case. See Tenn. R. Civ. P. 41.02(1) (addressing the “failure of the plaintiff to prosecute” his
case). They failed to do so. Under these circumstances, we find no abuse of discretion in the trial
court’s decision to finally, finally, dismiss the case.

       The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellants J.
Wilson Roop, Jr., Individually and as a Representative of Getwell Residents Association; Getwell
West Residents Association, as Representatives of Property Owners within the Annexed Area;
Gerald D. McLemore, Wynn Patton, Roxie Boyce, William C. Porter, Harry Gillespie, Wendell B.
Williams, Mattie Booker, Mable Durham, Gene Cummings, Jim Gaither, Berice Johnson, Carole
H. Nellums, and Robert E. Buie, Individually and as Representatives of their Respective
Subdivisions; and their surety, for which execution may issue, if necessary.



                                                               ___________________________________
                                                               HOLLY M. KIRBY, JUDGE




         4
          The case of Gadd v. State, No. E1998-00016-W C-R3-CV, 2000 W L 310262 (Tenn. Sp. W orkers’ Comp.
Mar. 4, 2000), cited by the Plaintiffs, is inapposite, because that case was analyzed under the special rules of the
Tennessee Claims Commission, which have no application in this case.

                                                         -4-
