Geico General Insurance Co. v. G & S. Transportation, Inc.
M2016-0430-COA-R3-CV
| Tenn. Ct. App. | Oct 17, 2016Background
- Geico (plaintiff in general sessions) obtained a default judgment against G & S Transportation in general sessions court and G&S appealed to Rutherford County Circuit Court.
- The appeal was stayed for G&S’s bankruptcy; Geico’s original counsel died and Geico substituted counsel in July 2014 but took no further action.
- For over a year after substitution, the case remained inactive on the circuit court docket.
- G&S moved to dismiss in November 2015 for failure to prosecute; Geico did not respond and did not appear at the December 2015 hearing.
- The circuit court dismissed Geico’s claims with prejudice on January 21, 2016; Geico’s subsequent objection was denied and Geico appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by dismissing Geico’s claim for failure to prosecute when Geico was the appellee on the general sessions appeal | Geico: an appellee (original plaintiff) in a general sessions appeal has no burden to prosecute in circuit court; Tenn. Code § 27-5-106 places the burden on the appellant | G&S: circuit appeals are de novo and governed by Tenn. R. Civ. P.; Rule 41.02 permits a defendant to move to dismiss when a plaintiff fails to prosecute | The court affirmed dismissal: § 27-5-106 was inapplicable; Rule 41.02 and the court’s discretion authorize dismissal for plaintiff’s failure to prosecute |
Key Cases Cited
- Crowley v. Thomas, 343 S.W.3d 32 (Tenn. 2011) (explains effect of appeals from general sessions to circuit court)
- Brown v. Roland, 357 S.W.3d 614 (Tenn. 2012) (defendant need not replead after appealing from general sessions)
- Ware v. Meharry Med. Coll., 898 S.W.2d 181 (Tenn. 1995) (de novo appeals from general sessions provide a new trial as if case originated in circuit court)
- White v. College Motors, Inc., 370 S.W.2d 476 (Tenn. 1963) (standard that dismissal for failure to prosecute is within trial court discretion)
- Manufacturers Consolidation Servs., Inc. v. Rodell, 42 S.W.3d 846 (Tenn. Ct. App. 2000) (discusses dismissal for failure to prosecute under the rules)