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09/16/93 KARLUS L. COZART v. MAZDA DISTRIBUTORS

September 16, 1993

KARLUS L. COZART, PLAINTIFF-APPELLANT,
v.
MAZDA DISTRIBUTORS (GULF), INC., AND SELLERS-SEXTON, INC., DEFENDANTS-RESPONDENTS.



APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY. Honorable John D. Wiggins, Judge

Shrum, Parrish, Montgomery

The opinion of the court was delivered by: Shrum

This appeal involves the involuntary dismissal for failure to prosecute of the plaintiff's personal injury suit and the plaintiff's efforts to have that order set aside. The trial court sustained a motion by one of the defendants to set aside earlier trial court orders that purported to set aside the order of dismissal and reinstate the action to the active docket, and the court denied the plaintiff's request that the dismissal be set aside. The plaintiff appeals; we affirm.

FACTS

On January 13, 1986, the plaintiff filed suit against Mazda Distributors (Gulf), Inc., and Sellers-Sexton, Inc., seeking damages for personal injuries he sustained in a one car accident on August 23, 1983.

Activity in the case, as reflected by the docket sheet, gradually dwindled until June 6, 1990, when the trial court dismissed it without prejudice for lack of prosecution. From affidavits of the plaintiff's attorney and the attorney's office manager we learn that the attorney did not receive notice before June 6, 1990, that the case was on the dismissal docket and did not receive notice of the June 6, 1990, dismissal. When, on July 23, 1990, the attorney first learned of the dismissal, he went directly to the trial Judge's office to discuss the matter. On July 23, the Judge signed an order, prepared by the plaintiff's attorney, by which the court "set aside" the June 6, 1990, order of dismissal and "reinstated" the cause to "the active trial docket."

It is clear from the record that the plaintiff's attorney did not file a written motion asking that the June 6, 1990, order be set aside, nor were the other litigants or counsel notified that an ex parte oral request for such relief was being made. Further, the record is devoid of any indication that other litigants or counsel were notified of or had knowledge of the entry of the July 23, 1990, order until some date in 1992.

The cause found its way to the dismissal docket a second time, as reflected by the following docket sheet entries:

06/12/92 Motion Filed

Mot. to Remove from Dismissal Doc.

Attorney for Plaintiff

06/12/92 Motion Disposed Days

Motion to Remove from Dismissal Doc.

Sustained

06/12/92 Document Filed

Order to Reinstate Case

Judge

Copies of order mailed to all

attys. of record

Documents in the legal file enable us to flesh out these cryptic docket sheet entries. In an undated motion bearing a circuit clerk file stamp date of June 12, 1992, the plaintiff stated he was on active duty with the United States Army in Europe and requested his case be reinstated to the active docket. In response, the trial court issued an order, dated June 8, 1992, and bearing a file stamp date of June 12, 1992, by which the court "ordered that the above-entitled cause and the ...


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