                     IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                  ______________________________________________

CHARLES CONNER,                                FROM THE SHELBY COUNTY
                                               CHANCERY COURT, No. 101978-3
       Plaintiff-Appellant,                    THE HONORABLE D.J.
                                               ALISSANDRATOS, CHANCELLOR
Vs.                                            C.A. No. 02A01-9809-CH-00251
                                               VACATED AND REMANDED
CYNTHIA D. CONNER,

       Defendant-Appellee.             Charles Conner, Pro Se                     FILED
                                     Marti L. Kaufman; Monroe,    July 27, 1999
                                     Kaufman & McGhee of Memphis
                                     For Appellee               Cecil Crowson, Jr.
____________________________________________________________________________ Clerk
                                                               Appellate Court
                         MEMORANDUM OPINION1
___________________________________________________________________________

CRAWFORD, J.

       This is an appeal from an order of the trial court dismissing the case without prejudice

for failure to prosecute. Plaintiff, Charles S. Conner, acting pro se, filed his complaint on

September 23, 1992. On October 23, 1992, defendant, Cynthia D. Conner, filed a motion to

dismiss for, inter alia, failure to state a claim upon which relief can be granted.

       On October 29, 1992, plaintiff filed a set of interrogatories and also filed his first request

for production of documents. On October 30, 1992, plaintiff filed a motion for designation of

another judge to hear the case pursuant to Shelby County Chancery Court Rule XXVI, because

local attorneys would be material witnesses in the case. On November 9, 1992, defendant filed

a motion to stay discovery pending a ruling on the motion to dismiss, and on November 19,

1992, plaintiff filed a motion to compel discovery. On December 2, 1992, the court entered an

order granting the motion to stay discovery pending a hearing on defendant’s motion to dismiss.



       Nothing transpired in this case until plaintiff was notified by letter dated March 20, 1998,

that the Clerk and Master had filed a motion to require plaintiff to show cause why the case


       1
         Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any
reason in a subsequent unrelated case.
should not be dismissed and that the motion was scheduled for hearing on March 27, 1998 at 9

a.m.

        On March 26, 1998, plaintiff filed a motion for continuance wherein he stated that

although the Clerk and Master’s letter was dated March 20 it was not received by the plaintiff

until March 25, 1998. The motion also stated that plaintiff had been ill and was presently under

medication that inhibited his ability to address the matter of the dismissal. The motion certified

that a copy was hand-delivered to the deputy clerk in the office of the Clerk and Master on the

same date of filing and was also mailed to defendant’s attorney on the same date. There is

nothing in the record to reflect whether plaintiff appeared in court at the designated time on

March 27th. The next entry in the record is an order of dismissal for lack of prosecution dated

by the chancellor March 27, 1998, and entered March 29, 1998.

        On April 27, 1998, plaintiff filed a motion for a new trial again setting out, among other

things, the lack of sufficient notice for the motion to dismiss. The motion was accompanied by

plaintiff’s affidavit concerning his illness and the medication which he was taking.

        Plaintiff has appealed and presents three issues for review, none of which we consider

dispositive of this appeal. The real issue in the case is whether the trial court erred in dismissing

the case for lack of prosecution.

        At first blush it would appear that when nothing happens in a case from 1992 to 1998,

there is some form of “lack of prosecution.” However, in the instant case, the record reflects that

the plaintiff filed interrogatories and a motion for production of documents shortly after filing

the complaint. The defendant filed a motion to dismiss and also a motion to stay discovery until

the motion to dismiss was decided. The case then rested in that posture until the motion of the

Clerk and Master to show cause. After the order of dismissal was entered, plaintiff filed a

motion for a new trial. This motion was not acted upon.

        As previously noted, on October 30, 1992, plaintiff filed a motion which we consider to

be a motion for recusal. This motion has not been acted upon. In view of this pending motion

and the trial court’s order of stay in December of 1992, we find that the order of dismissal for

failure to prosecute was erroneously granted.

        Accordingly, the order of dismissal is vacated, and this case is remanded to the trial court

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for such further proceedings as may be necessary. This opinion should not be construed in any

way to reflect any consideration by this Court on the merits of the case based upon the pleadings.

Costs of the appeal are assessed against the appellee.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
DAVID R. FARMER, JUDGE

____________________________________
HEWITT P. TOMLIN, JR.
SPECIAL JUDGE




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