A special statute addresses the circumstances under which a claim under Tennessee Code Annotated section 9-8-402(b) will be dismissed for failure to prosecute. Subsection (b) specifically provides, in pertinent part:
Absent prior written consent of the commission, it is mandatory that any claim filed with the claims commission upon which no action is taken by the claimant to advance the case to disposition within any one-year period of time be dismissed with prejudice.
The Court of Appeals “has recognized on several occasions that the plain language of the statute mandates dismissal if no action is taken for a one-year period,” except in circumstances where a claimant has secured the prior written consent of the Commission. Ledford ex rel. Rodriguez, 2020 WL 1686377, at *2 (quoting Mathis v. State, No. M2009-02398-COA-R3-CV, 2010 WL 2482330, at *3 (Tenn. Ct. App. June 10, 2010)).
Add another decision to that list. In Moreland v. State of Tennessee, No. E2022-00623-COA-R3-CV (Tenn. Ct. App. May 15, 2023), a complaint before the Tennessee Claims Commission was pending with no action on the part of the claimant. The State moved to dismiss the case for failure to prosecute. Commissioner Young dismissed the case, and the Court of Appeals affirmed. The Court explained as follows:
we are of the opinion that Claimant, for over a year, did not take action to advance the case to disposition within the meaning of section 9-8-402(b). Although Claimant’s counsel did
allegedly attempt to contact the State’s counsel, he took no further action other than a phone call and an email. Moreover, as noted previously, the Commission found that Claimant’s
counsel and the State’s counsel “did not communicate during the relevant period.” As argued by the State in its brief, it is the responsibility of Claimant to take action to advance
the case to disposition. Id. at *3. Inaction by the State does not absolve Claimant of her responsibility to act, Grissom, 2002 WL 31895712, at *2, and as noted previously, a claimant’s failure to act is permissible only when the claimant has secured previous written consent of the Commission. Tenn. Code Ann. § 9-8-402(b). Here, even with the State’s inaction, Claimant, at any time during the year at issue, could have filed a motion to compel the State to respond to her discovery requests that had gone unanswered since June 2020.
However, the record indicates no attempt to do so, and Claimant did not file such a motion until after the State’s motion to dismiss was filed. Claimant offers no explanation for her
failure to compel the State’s response within the relevant period nor for her failure to file a proposed scheduling order or any other filing pertaining to the case.
Id. at *5.
In summary, the Court concluded that “the mere attempt to contact opposing counsel here, based on the facts before us, did not constitute an effort to advance the case as contemplated by Tennessee Code Annotated section 9-8-402(b).” Id. at *6.
Remember too that the Court of Appeals will review the Claims Commissioner’s decision on whether to affirm the motion to dismiss is under the following standard:
this Court reviews the Commission’s factual findings with a presumption of correctness, and we will not overturn such findings absent evidence that preponderates against them. Tenn. R. App. P. 13(d); Waller v. State, No. M2005-02056-COA-R3-CV, 2006 WL 2956515, at *4 (Tenn. Ct. App. Oct. 16, 2006). “A trial court has ‘considerable discretion to dismiss a case for failure to prosecute.’” Ledford ex rel. Rodriguez v. State, No. E2019-00480-COA-R3-CV, 2020 WL 1686377, at *2 (Tenn. Ct. App. Apr. 7, 2020) (quoting Grissom v. State, No. W2001- 03021-COA-R3-CV, 2002 WL 31895712, at *2 (Tenn. Ct. App. Dec. 23, 2002)).
So, it is recommended that the files of the Claims Commission reflect the activity undertaken by the Claimant’s counsel is pursuing the case, and that the Claimant not count on emails or evidence of non-filed communications in an attempt to avoid a motion to dismiss for failure to prosecute. It appears that the courts will look for the ball to be actually advanced in some way on the public record.