David H. Crenshaw, Sr. v. Ats Southeast, Inc.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This is an appeal by the employer from an order of the trial court setting aside a previously issued order of dismissal for failure to prosecute a workers' compensation case within one year under the local rules of court for Davidson County. The trial court set aside the dismissal order under Rule 6.2, TENN. R. CIV. P. The complaint for workers' compensation benefits was filed October 14, 1994. The defendant filed an answer on November 17, 1994. The trial court, sua sponte, dismissed the complaint on November 6, 1995 under the local rule for failure to prosecute. The record before us, which consists of the pleadings, orders and an affidavit of the employee's counsel in support of his Rule 6 motion, show the notice of dismissal was filed on counsel for the plaintiff on November 14, 1995. On January 22, 1996, plaintiff filed a Rule 6 motion to have the order dismissed or set aside. On February 26, 1996, the trial judge found "Plaintiff [had] not made out a sufficient showing of mistake, inadvertence, surprise, or excusable neglect to justify relief under Rule 6, Tennessee Rules of Civil Procedure," however "because this matter is a workers' compensation action, the Order of Dismissal will be set aside and this case shall be put back on the Court's active docket." Unless otherwise set out in the order of dismissal, such order operates as an adjudication upon the merits. Rule 41.2(3), TENN. R. CIV. P. Rule 59.4, TENN. R. CIV. P., provides for a motion to amend or alter a judgment. Such motions must be filed and served on the opposite party within 3 days of the entry of the judgment in question. A judgment becomes final in 3 days and cannot be reviewed after that time. Algee v. State Farm General Ins. Co., 89 S.W.2d 445, 447 (Tenn. Ct. App. 1994). The order of dismissal in this case became final 3 days after entry thereof, 2