                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                           Assigned on Briefs September 10, 2002

              RUSSELL WELLINGTON v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Davidson County
                         No. 01C-376     Hamilton V. Gayden, Judge



                      No. M2002-01090-COA-R3-CV - Filed May 27, 2003


Inmate appeals the trial court’s order dismissing his lawsuit for failure to prosecute. Because the
State had been granted a transfer of this case from the Claims Commission for the purpose of
consolidating it with another case pending in the trial court, but took the position in this appeal that
no consolidation had occurred, we vacate the dismissal and remand.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM C. KOCH , JR., J., joined.

Russell Wellington, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Pamela S.
Lorch, Assistant Attorney General, for appellee, State of Tennessee.

                                              OPINION

       In this appeal, Russell Wellington, a pro se inmate in the custody of the Department of
Correction, appeals the order of the trial court dismissing his lawsuit for failure to prosecute.

       On February 5, 1998, Mr. Wellington filed a Notice of Appeal to the Claims Commission
from the denial of his claim for damages by the Tennessee Division of Claims Administration.
Specifically, Mr. Wellington alleged that he was beaten, sprayed with pepper gas, and left outside
in the cold weather for over an hour by the first shift inmate workers at Riverbend Maximum
Security Correctional Facility in Nashville and then denied medical treatment for his injuries. Mr.
Wellington alleged that these actions violated the duty of care owed him by the State and sought
damages in the amount of $15,000; $3,000, against each of the individuals named as defendants,
and $3,000, against the State.1

       The matter was set on the Commission’s Small Claims Docket.2 On February 18, 1998, Mr.
Wellington petitioned the Commission to transfer the matter to Davidson County Chancery Court
due to a pending matter there, arising from the same facts.3 On April 14, 1998, Claims


        1
         Mr. Wellington amended his claim to add an assault claim against the individual officers under 28
U.S.C.A. § 19 83.

         2
             Tenn Cod e Ann. § 9 -8-403 p rovides, in pertinent part, as follows:

         (a).        The [Claims] co mmission sha ll maintain two (2 ) separate dockets [regular and small ]. . .

         (2).        A small claims docket consisting of claims satisfying the mo netary limits applicable to
                     the general sessions court of Davidson County. . .These proceedings shall be conducted
                     pursuant to rules and regulations promulgated by the comm ission. If a claimant consents
                     to having the claimant’s claim proceed upo n affidavits filed with the commission without
                     a hearing, the state shall be deemed to have waived a hearing on the claim unless the
                     state requests a hearing w ithin sixty (60) day s after the claim is filed with, or
                     transferred to, the commission. No appeal may be taken from a commissioner’s decision
                     regarding claims ap pearing on the sma ll claims docket.

         (c).        At the discretion of either party at any time prior to a hearing, a claim may be removed
                     from the small claims docket to the regular docket. Once removed, the claim shall be
                     treated like any other claim on the regu lar do cket.

(emphasis added).


         3
          The pending c ase is Wellington v. Ledford (Da vidson Co unty Circ uit Court No.00 C-34 05). We previously
affirmed the dismissal of the warden and of the guard who allegedly failed to provide timely medical help, but
reversed as to the five remaining de fendants and remanded the case to D avidson C ounty C hancery Co urt with
instructions to transfer the ca se to D avidson C ounty C ircuit Court . Wellington v. Ledford, No. 01-A-01-9807-
CH003 63, 1999 W L 499776 (Tenn. Ct. App. July 16,1999) (perm. to appeal denied Feb. 14, 2000). Specifically, we
found that Mr. Wellington had stated a claim for possible violation of the Eight Amendment prohibition against cruel
and unusual punishment (as well as the parallel prohibition in Article I, § 17 of the Tennessee Constitution). If
proven, his allegation s could support a judgment under 42 U.S.C. § 1 983 for deprivation of constitutional rights
under color of law.

          In Ledford , the State unsuccessfully argued that Mr. Wellington had waived his § 1983 claims by virtue of
filing the instant Claims Commission ca se. W e noted that:

         The legislature enacted Tenn. Code Ann § 9-8-307(b) to avoid the danger of inconsistent or
         dup licative judgm ents in different tribunals, not to create a trap or hind er or d elay the d iligent pro
         se plaintiff. In the present case [Ledford ], it is apparent to us that the circuit court is the most
         app ropriate foru m for d ealing with the alleged assault by the five guards. The allegedly negligent
         conduct by other Department employees, all of which occurred either before and after the
         alleged assault, is better addressed by the Claims Commission, which while granting
         immunity to the negligent employee, makes the State answer in damages for her negligence.



                                                              2
Commissioner Baker denied the transfer request.4

      On October 27, 2000, ALJ Marion Wall5 found the State liable for failing to provide timely
medical and dental care to Mr. Wellington and awarded him $3,000, in damages. The ALJ found
that:

         [T]he record as it now exists, [consists of] a sworn pleading stating that the
         Claimant was assaulted, beaten and sprayed with a chemical agent by four State
         employees. It is further averred that these four and the next shift failed to provide
         medical care. It is further averred that Claimant suffered dental damage, and
         continues to suffer pain from this incident as a result of the failure of the State to
         render dental care . . . . While some of the complaint alleges an intentional tort,
         that is, the assault, negligence is specifically alleged. There is no countervailing
         proof in this record, the “answers” to the interrogatories being sworn to by,
         effectively, no one. The State did not request a hearing pursuant to T.C.A.
         § 9-8-403(a)(2). Therefore, the State having chosen to file nothing contesting the
         sworn allegations despite three letters,6 the proof is uncontroverted. Pursuant to
         T.C.A. § 9-8-307(E), the State is liable for the negligent care, custody and control
         of persons. Based on the negligence of the State in failing to provide timely
         medical and dental care it is ORDERED that the Claimant receive the sum of
         three thousand ($3,000.00), the amount requested from the State.

         [T]he claims against the four named individuals be dismissed for want of
         jurisdiction7 unless a motion to transfer this matter to Circuit Court is received
         within thirty days of this Order. If such motion is made and granted, the
         judgment in this matter will be vacated, and the entire proceeding
         transferred.

(emphasis added).


1999 W L 4997 76, at *7 (emphasis added).

         4
          Commissioner Baker commented that “[t]his Commission is unwilling to transfer this claim to Davidson
County Chancery C ourt, when it appears that whatever p roceed ings (Ledford ) may have already started there are not
in the appropriate Court. It seems useless to transfer this claim unless it is to be consolidated for trial with another
action already pending in that Court” (emphasis added).

         5
         On O ctober 27, 1998 , citing docket congestion, Claims Commissioner Baker transferred the matter to the
Administrative Procedures Division of the Secretary of State.

         6
         The AL J states that she wrote letters to the parties on three separate dates, inquiring about the status of the
matter. These letters were not included in the record.

         7
          On November 9, 1999, the ALJ entered a separate order dismissing Mr. Wellington’s 42 U.S.C.A.§ 1983
claim since the Claims Com mission lacked jurisdiction to hear the civil rights claim against individual employees.

                                                          3
       On November 13, 2000, the State filed a Motion to Transfer the matter to Davidson
County Circuit Court.8 Mr. Wellington objected to the transfer maintaining that the claims of
negligent conduct were properly before the Claims Commission. During a conference call
between the parties and the ALJ, Mr. Wellington argued against transfer, and a discussion ensued
regarding the pending case in Circuit Court. At this point, the ALJ took the matter under
advisement.

        On December 29, 2000, the State filed a Motion to Supplement its transfer request.
Interestingly, the State began its motion with the following explanation:

        The defendant respectfully requests that the Court transfer this claim to the Circuit
        Court to be consolidated with the case pending in said Court so that this case
        can be decided on the merits. The defendant contests Mr. Wellington’s claim that
        it was negligent in its provision of medical care and seeks a hearing on the merits
        of case.9

(emphasis added). Alternatively, if the transfer were denied, the State requested that the matter
be moved to the regular docket of the Claims Commission at the Riverbend Maximum Security
Institution and set for a hearing in February, 2001.

        On January 4, 2001, the ALJ vacated her prior order awarding $3,000 to Mr. Wellington
and ordered the entire matter transferred to Davidson County Circuit Court pursuant to Tenn.
Code Ann. § 9-8-404(a) & (b), where “an action is now pending based on the same incident that
is the basis for the instant claim.”

        On March 4, 2002, a Notice by the Davidson County Circuit Court Clerk advised Mr.
Wellington that this case would be dismissed for failure to prosecute if he failed to either file a
motion to set the matter for trial within thirty days or seek permission to be exempted from the
one (1) year rule. Mr. Wellington filed no response within the required thirty days. On April 17,
2002, the trial court entered an Order of Dismissal pursuant to Local Rule § 18.02.

       On May 6, 2002, Mr. Wellington filed a Tenn. R. Civ. P. 60 Motion for Relief from the
dismissal order. As grounds for the motion, Mr. Wellington stated that the matter had been
consolidated with Davidson County Circuit Court No. 01C-376 (Ledford), and that it was not




        8
          Despite the language in Ledford regarding the negligent conduct claims being better addressed by the
Claims Commission, the State moved the ALJ to transfer the instant case to Davidson Circuit on November 12,
2000, for the purpose of consolidation with Ledford.

        9
            We note the State had waived a hearing before the Commission by not requesting one within the time
provided.

                                                        4
“dormant.”10 His motion specifically alleges that “on April 26, 2001, this Court granted the
defendants’ motion to consolidate the above entitled case with case number 00C-3405 [the
Ledford case].” Mr. Wellington explained he had filed a motion for summary judgment that had
been pending for over a year in the consolidated Ledford case and that “if there is a lack of
prosecution it certainly is not on the behalf of the plaintiff.” In his motion, Mr. Wellington also
observed that the case at issue was transferred from the Claims Commission where it was “better
addressed” because it involved a claim of negligence.

       The record indicates that the State did not respond to Mr. Wellington’s Rule 60 motion
and the trial court did not rule on it, presumably because on May 7, 2002, Mr. Wellington filed
his Notice of Appeal.

                                                I. The Dismissal

         With the respect to the consolidation with Ledford in Davidson County Circuit, the record
before us does not include a consolidation order. Mr. Wellington maintains that the instant case
was consolidated with Ledford, specifically referring to the order by date. The State maintains
in its brief that the two cases have not been consolidated in spite of the fact that the State
requested the transfer for the express purpose of consolidating the matter with Ledford. Indeed,
the transfer was granted for the purpose and in expectation of consolidation.11 The transfer statute
itself allows the Commission to transfer a claim if it finds such transfer is required for a fair and
complete resolution of all claims and only where there are other tort claims arising out of the
same fact situation “where much of the evidence to be presented would be admissible against the
state and one or more additional defendants.” Tenn. Code Ann. § 9-8-404(b). By its motion and
supporting memorandum, the State took the position this was the situation.

       Having requested the transfer of this claim for the purpose of consolidating it with
Ledford, the State was obligated to seek that consolidation. The record does not reflect that a
motion to consolidate was filed, and the State’s position in this appeal implies it was not filed.12


         10
           On appeal, M r. W ellington states that he never received no tice of the pend ing dism issal ord er. In his
response filed with this Court July 29, 2002, Mr. Wellington states that “during the month of March of the year
2002, he did not receive any legal mail from the Circuit Court, especially no notice in connection with the case no.
01376.” In support, Mr. Wellington submits Exhibit 1 to his response highlighting his incoming legal mail log for
March 2002. This argument and supporting documentation were apparently not presented to the trial court and,
consequently, we canno t consid er it on appe al.

         11
           ALJ W all provided in her order of transfer entered February 6, 2001, in Davidson County Circuit Court
that “A motion to transfer this matter was filed by the State within thirty days. It requested that this matter be
transferred pursuant to T.C.A. § 9-8-404(a) & (b) to the Circuit Court of Davidson County, where an action is now
pending b ased upon the sam e incident that is the basis for the instant claim.”

         12
          In its brief herein, the State m erely states, “The First C ircuit Co urt has not consolidated the case with
Wellington v. Ledford, Doc. No. 00C-3405.” It does not claim that any motion to consolidate was filed. If such
motio n was filed and w as pending at the time of the no tice of dismissal, plaintiff would not be properly chargeable

                                                         5
Because it was the obligation of the State to seek consolidation, as it represented to the
Commission would happen, we conclude that any lack of action in the transferred lawsuit was
attributable to the State, not to Mr. Wellington. Under the transfer statute, if a transferred claim
is not consolidated for trial the claim shall be transferred back to the commission. Tenn. Code
Ann. § 9-8-404(b) (emphasis added). Thus, from Mr. Wellington’s perspective, the State’s failure
to act to consolidate the cases should cause the same result he originally sought in opposing the
transfer.

        The State essentially argues that because Mr. Wellington failed to either set the case for
trial or move for exemption from dismissal within the thirty days set by the court’s notice,
dismissal was justified under Tenn. R. Civ. P. 41.02. That argument ignores the State’s
responsibility to consolidate the cases and the statute requiring transfer back to the Claims
Commission if there is no consolidation. Although Mr. Wellington timely filed a Tenn. R. Civ.
P. motion to set aside the dismissal, he filed a notice of appeal before the trial court could rule
on the motion.

        We vacate the trial court’s dismissal for failure to prosecute. We remand to the trial court
for a determination of whether the case should be transferred back to the Claims Commission
pursuant to Tenn. Code Ann. § 9-8-404(b) or, if an appropriate motion has been or is filed,
whether the case should be consolidated with Wellington v. Ledford, Davidson County Circuit
Court No.00C-3405, which the parties assert is pending. Included in that determination should
be a consideration of the validity of the transfer, the other issue raised in Mr. Wellington’s brief.
Mr. Wellington should be given the opportunity to move to dismiss this action on the ground the
Commission lacked authority to transfer his claim after a decision on the merits under the small
claims docket rules. Because the trial court was never given the opportunity to consider these
issues, we consider it appropriate for remand rather than a decision by this court on the basis of
the record herein.

         Costs of this appeal are taxed to the appellee, the State of Tennessee.



                                                        ____________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




with failure to prosecute.

                                                 6
