Margaret Barnes v. Bright Glade Home ( 1998 )

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