Margaret Barnes v. Bright Glade Home

• Court: Court of Appeals of Tennessee
• Decided: October 28, 1998
• Docket: 02A01-9801-CV-00011
• Status: Published

Opinion

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.

3 FARMER, J.

LILLARD, J.