Margaret Barnes v. Bright Glade Home ( 1998 )


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  •                     IN THE COURT OF APPEALS OF TENNESSEE
    AT JACKSON
    MARGARET MARIE BARNES,                 )
    )
    Plaintiff/Appellant,      ) Shelby Circuit No. 83304 T.D.
    )
    VS.                                    ) Appeal No. 02A01-9801-CV-00011
    )
    BRIGHT GLADE CONVALESCENT              )
    HOME, LOUIS MONTESI and
    DEBORAH HENDERSON,
    )
    )
    FILED
    ADMINISTRATOR AD LITEM OF              )
    THE ESTATE OF LOUIS MONTESI,           )      October 28, 1998
    DECEASED,                              )
    )     Cecil Crowson, Jr.
    Appe llate Court C lerk
    Defendants/Appellees. )
    APPEAL FROMTHE CIRCUIT COUR OF SHELBY C
    T             OUNTY
    AT MEMPH TENNESSEE
    IS,
    THE HONORABLE KAY S. ROBILIO, JUDGE
    RONALD C. WILSON
    Mem  phis, Tennessee
    Attorney for Appellant
    ROBERT A. WAMPLER
    WAMPLER & PIERCE, P.C.
    Mem  phis, Tennessee
    Attorney for Appellees
    DISMISSED
    ALAN E. HIGHERS, J.
    CONCUR:
    DAVID R. FARMER, J.
    HOLLY KIRBY LILLARD, J.
    Margaret Barnes (Plaintiff) appeals the trial court’s order of dismissal, dismissing her complaint as to
    Defendant Louis Montesi (Montesi). Based upon the record before this Court, we dismiss the subject appeal
    because Plaintiff has appealed from an order that adjudicates fewer than all the claims or the rights and
    liabilities of fewer than all the parties and because the trial court did not direct the entry of a final judgment
    upon an express determination that there is no just reason for delay and upon an express direction for the
    entry of judgment.
    Plaintiff commenced this personal injury lawsuit against both Bright Glade Convalescent Home and
    Montesi on November 22, 1996. Thereafter, both nam defendantsfiledtheir respectiveanswersto Plaintiff’s
    ed
    complaint. OnMarch7, 1997, Montesi’s attorney of record filed and served a suggestion of death, suggesting
    upon the record the fact of Montesi’s death, which occurred February 28, 1997. 1 On June 6, 1997, Plaintiff
    filed a motion seeking to substitute “the administrator of the Estate of Louis Montesi as a Defendant in this
    action.” Plaintiff’s motion was later served on Bright Glade’s and Montesi’s attorneys of record on June 23,
    1997. On June 16, 1997, the attorney of record for Montesi filed and served a motion to dismiss. On August
    4, 1997, the trial court entered an order granting the “motion of the defendant, Louis Montesi, to dismiss the
    complaint filed herein against him.” The court’s order explained that Plaintiff filed her motion to substitute “in
    a timely manner, but did not sign and date the Certificate of Service.” The court’s order further explained that
    Plaintiff’s service did not conform with the service requirements of Rule 25.01 of the Tennessee Rules of Civil
    Procedure. Thereafter, on September 2, 1997, Plaintiff filed a subsequent motion entitled “Motion to Amend
    and/or Vacate Order of Dismissal as to Defendant, Louis Montesi.” Though this motion was initially denied
    by the trial court by order dated October 15, 1997, the matter was again heard by the trial court on November
    7, 1997, and the trial court entered an order setting aside both the October 15, 1997 order and the August 4,
    1997 order. In this order, which was entered on Novem 21, 1997, the trial court provided, “the plaintiff . .
    ber
    . is hereby granted thirty (30) days from November 7, 1997 to substitute a party defendant for the defendant,
    1
    Interesti ngly, we are unaware of any authority whereby a decedent’s attorney of record can file a
    sug ges tion o f dea th pu rsua nt to R ule 25.0 1 of th e Te nne sse e Ru les of Civil P roce dure . Wh ile it appears to
    us that T enn ess ee ca ses have not a ddre sse d this issue , we s imply note that fe dera l courts construing the
    similar federal Rule 25 have held that a decedent’s attorney of record cannot file a suggestion of death on the
    deced ent’s beh alf so as to trigger th e com men cem ent of R ule 25's 90 day period. See Farris v. Lynchburg
    Foundry , 769 F.2 d 958 (4 th Cir. 198 5); Rende v. Kay, 
    415 F.2d 983
    , 985-9 6 (D.C. Cir. 1969); Hilsabeck v.
    Lane Company, Inc., 168 F.R .D. 313, 3 14-15 (D .Kan. 19 96); Kessler v. Southeast Permanente Medical
    Group, 165 F.R .D. 54, 56 (E.D.N .C. 1995 ); Al-Jundi v. Estate of Rockefeller, 
    757 F. Supp. 206
    , 210 (W.D.N.Y.
    1990); Al-Jundi v. Rockefeller, 88 F.R.D . 244, 246 (W.D.N .Y. 1980 ). See also 7C Ch arles A. W right et al. ,
    Federal Practice and Procedure § 1955 at 545 (1986). Because we have determined that we must dismiss
    the s ubjec t app eal, h owe ver, w e res erve reso lution of this issue until it is p rope rly ra ised on ap pea l.
    2
    Louis Montesi.” On Decem 5, 1997, Plaintiff filed a motion to amend her Complaint, seeking “leave to
    ber
    name Deborah Henderson, Administrator Ad Litem of the estate of Louis Montesi, deceased, as substitute
    Defendant for said decedent.” On Decem 11, 1997, the trial court found that Plaintiff “failed to substitute
    ber
    a party defendant for the defendant Louis Montesi, in conform with the Order . . . entered November 21,
    ity
    1997.” Therefore, the trial court dismissed Plaintiff’s Complaint as against Montesi. On January 9, 1998,
    Plaintiff filed a Notice of Appeal, seeking to appeal the Decem 11, 1997 order.
    ber
    Additionally, Bright Glade filed a motion for summary judgm on Novem 7, 1997. Tihs motion
    ent      ber
    is still pending in the trial court.
    On appeal, Plaintiff states the following issues:
    1. Whether it was error for the lower court to [enter the] order of dismissal
    without notice to Plaintiff and [an] opportunity to be heard?
    2. Whether it was error for the lower court to dismiss [the] Complaint as to
    Louis Montesi pursuant to R 25 of the Tennessee Rules of Civil
    ule
    Procedure?
    We preterm theseissues, however, becausePlaintiff has appealed from an order that adjudicates fewer than
    it
    all the claims or the rights and liabilities of fewer than all the parties. Tenn. R. App. P. 3(a). Further, the trial
    court did not direct the entry of a final judgment uponan express determination that there is no just reason for
    delay and upon an express direction for the entry of judgment. Tenn. R. Civ. P. 54.02. Therefore, the order
    appealed from is not appealable as of right and is subject to revision before the entry of a final judgment.
    Tenn. R. App. P. 3(a).
    Accordingly, we hereby dismiss the subject appeal. Costs of this appeal are taxed to Plaintiff, for
    which execution may issue if necessary.
    HIGHERS, J.
    CONCUR:
    3
    FARMER, J.
    LILLARD, J.
    4
    

Document Info

Docket Number: 02A01-9801-CV-00011

Filed Date: 10/28/1998

Precedential Status: Precedential

Modified Date: 10/30/2014