Bryant v. Estate of Klein, No. M2008-01546-COA-R9-CV (Tenn. App. 4/20/2009)

• Decision Date: 20 April 2009
• Docket Number: No. M2008-01546-COA-R9-CV.,M2008-01546-COA-R9-CV.
• Parties: STEPHANIE BRYANT, ET AL. v. ESTATE OF HENRY H. KLEIN
• Court: Tennessee Court of Appeals

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STEPHANIE BRYANT, ET AL. v.ESTATE OF HENRY H. KLEIN

No. M2008-01546-COA-R9-CV.

Court of Appeals of Tennessee, at Nashville.

February 18, 2009 Session.

Filed April 20, 2009.

Appeal from the Circuit Court for Sumner County;No. 29039C;C. L. Rogers, Judge.

Judgment of the Circuit Court Reversed and Remanded.

David S. Zinn, Brentwood, Tennessee, for the appellant, Estate of Henry H. Klein.

J. Brent Nolan and Zachary S. Burroughs, Knoxville, Tennessee, for the appellees, Stephanie M. Bryant and Jonathan Bryant.

Richard H. Dinkins, J., delivered the opinion of the court, in which Patricia J. Cottrell, P.J., M.S. and Frank G. Clement, Jr., J. joined.

OPINION

RICHARD H. DINKINS, JUDGE.

Personal injury plaintiffs filed suit against defendant motorist, who died prior to the filing of the suit, for injuries sustained in an automobile accident.By special appearance, the deceased tortfeasor's estate filed a motion to dismiss on the grounds that plaintiffs had not properly instituted the action against the decedent in accordance with Tenn. Code Ann. § 20-5-103 prior to the expiration of the statute of limitations.The trial court denied the motion, but granted the estate a direct appeal to this Court.Finding error in the judgment below, we reverse and remand the case.

Background

The Plaintiffs, Stephanie M. and Jonathan Bryant, filed a Complaint on September 15, 2006, against Henry H. Klein and Enterprise Rent-A-Car ("Enterprise") for damages for injuries sustained by Ms. Bryant in a motor vehicle accident on September 17, 2005, in Sumner County, Tennessee.Ms. Bryant was operating a vehicle involved in the car accident while Henry Klein was the operator of the other car, a vehicle owned by Enterprise.¹The Plaintiffs alleged that Mr. Klein, who was 74. years old at the time of the accident, negotiated a curve too fast and crossed over into Ms. Bryant's lane of travel forcing her vehicle off the left side of the road and into a ditch.The Plaintiffs also alleged that Enterprise was liable for negligent entrustment because it should have known of Mr. Klein's incompetence to drive properly considering his age.

The Sumner County Circuit Court Clerk issued a Summons on September 15, 2006, which was returned on September 18, 2006, stating that a copy of the Summons and Petition had been given to Mr. Klein's daughter, Katherine Wesley; the return also advised that Mr. Klein had died on December 4, 2005.Upon Mr. Klein's death, no estate was opened nor was a personal representative appointed.A Suggestion of Death was filed by Enterprise on October 5, 2006.On November 8, 2006, the Plaintiffs filed a motion pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure to substitute the "Estate of Henry H. Klein" as a partydefendant in place of Mr. Klein, which the trial court granted on May 16, 2007.

On April 5, 2007, Stephen Ogle petitioned the Chancery Court for Sumner County, Probate Division, to be appointed administrator ad litem for Mr. Klein's estate.²On July 12, 2007, Plaintiffs. obtained issuance of an alias summons instructing the Sumner County Sheriff to serve the "Defendant . . . Estate of Henry Klein c/o Steven [sic] Ogle, Esq."The Alias Summons was personally served upon Mr. Ogle on July 8, 2007.³The probate court appointed Mr. Ogle. administrator ad litem on January 29, 2008.On February 6, 2008, Ms. Bryant obtained issuance of a second alias summons, which was personally served upon Mr. Ogle on February 12, 2008.⁴At no. time did Plaintiffs move to substitute Mr. Ogle, as Mr. Klein's personal representative, as a partydefendant in the present action.

On February 20, 2008, the "Estate,"⁵ by special appearance, filed a Rule 12.02(6) Motion To.Dismiss on the grounds that the action was time-barred by the one-year personal injury statue of limitations.The "Estate" asserted that Tennessee's anti-abatement statute, Tenn. Code Ann. § 20-5-103, requires a cause of action against a deceased individual to be brought against the decedent's personal representative and that since no personal representative of Mr. Klein was appointed prior to the expiration of the one-year statute of limitations for personal injury actions, which included the six months during which the statute of limitations was tolled pursuant to Tenn. Code Ann. § 28-1-110, the present action was time-barred and should be dismissed.⁶In response, the Plaintiffs. contended that the filing of the Complaint on September 15, 2006, "commenced" the action under Rule 3 of the Tennessee Rules of Civil Procedure thereby tolling the statute of limitations and, further, that because the first alias summons was served on Mr. Ogle, who had petitioned to be appointed administrator ad litem for Mr. Klein's estate, within one year of the filing of the Complaint and the second alias summons was served on Mr. Ogle as Mr. Klein's personal representative within one year of the first alias summons that the action was properly continued in accordance with Rule 3.On April 21, 2008, the trial court denied the "Estate's"motion to dismiss, but granted its motion for direct appeal to this Court.

Discussion

This interlocutory appeal arose from the trial court's denial of a Rule 12.02(6) motion to dismiss.The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether the pleadings state a claim upon which relief can be granted.A Rule 12 motion only challenges the legal sufficiency of the complaint, not the strength of the plaintiff's proof.SeeBell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.,986 S.W.2d 550, 554(Tenn.1999).As such, review of a Rule 12 motion is a question of law which appellate courts review de novo, without a presumption of correctness of the trial court's findings.Barge v. Sadler,70 S.W.3d 683, 686(Tenn.2002);Hill v. City of Germantown,31 S.W.3d 234, 237(Tenn.2000);Gleaves v. Checker Cab Transit Corp., Inc.,15 S.W.3d 799, 802(Tenn.2000);Exxonmobil Oil Corp. v. Metro Gov't. of Nashville and Davidson County,246 S.W.3d 31, 35(Tenn. Ct. App.2005).

The sole question in this case is whether a complaint filed against a deceased tort-feasor was "commenced" within the meaning of Rule 3 of the Tennessee Rules of Civil Procedure when the Plaintiffs failed to bring the action against the personal representative of the decedent.At common law, an action could not be brought against a deceased tortfeasor.SeeJohnson v. Maury County Trust Co.,15 Tenn.App. 326(1932);Brown v. Stephens,165 Tenn. 85, 52 S.W.2d 146(1932).However, in 1935, the General Assembly abrogated the common law rule by adopting the predecessor of the current Tenn. Code Ann. § 20-5-103.See1935 Pub.Acts, c. 104, § 1;Brooks v. Garner,30 Beeler 624, 194 Tenn. 624, 254 S.W.2d 736, 737(1953).The statute provides:

Survival of actions; tort-feasors; death.(a) In all cases where a person shall commit a tortious or wrongful act causing injury or death to another, or property damage, and such person committing such wrongful act shall die before suit is instituted to recover damages therefor, such death of such person shall not abate any cause of action which the plaintiff would have otherwise had, but such cause of action shall survive and may be prosecuted against the personal representative of such tort-feasor or wrongdoer.

(b) The common law rule abating such actions upon the death of the wrongdoer and before suit is commenced is abrogated.

Tenn. Code Ann. § 20-5-103.

This survival statute, also referred to as the anti-abatement statute, "does not create a new cause of action, but simply preserves a cause of action against a tort-feasor who subsequently dies."Goss v. Hutchins,751 S.W.2d 821, 823-24(Tenn.1988)(citingGoins v. Coulter,185 Tenn. 346, 348-49, 206 S.W.2d 379, 380(1947)).The Tennessee Supreme Court has held that because the statute provides the exclusive remedy and steps to be followed when such circumstances arise, the steps "must be strictly followed."Brooks,254 S.W.2d at 737.Accordingly, an action preserved by this statute"may only be instituted against the personal representative of the tort-feasor."Goss,751 S.W.2d at 824(emphasis added);Brooks,254 S.W.2d at 737.

In the present case, Mr. Klein, the alleged tort-feasor, died before the suit was instituted; through Tenn. Code Ann. § 20-5-103Plaintiffs' cause of action did not abate with his death.To pursue their cause of action against Mr. Klein, however, Plaintiffs were required to institute their action against the personal representative of Mr. Klein.Here, the Plaintiffs brought their action against the decedent, who, according to Tenn. Code Ann. § 20-5-103 and case law interpreting the statute, was not a proper partydefendant.By bringing the action against an improper party, the filing of the Complaint did not "commence" the action within the meaning of Rule 3 of the Tennessee Rules of Civil Procedure.⁷SeeCarpenter v. Johnson,514 S.W.2d 868, 870(Tenn.1974)(held that. the court's order allowing the substitution of the decedent's personal representative, not the previously filed Complaint against the decedent, "marked the commencement of the action within the meaning of Rule 3").

The Plaintiffs filed a motion to substitute the "Estate of Henry H. Klein" as a partydefendant in the place and stead of the decedent, Mr. Klein, on November 6, 2006; however, such action did not correct the Complaint's fatal flaw because the "Estate" was also an improper party as no estate had been opened.SeeGoss v. Hutchins,751 S.W.2d 821, 824(Tenn.1988)(finding that pursuant to Tenn. Code Ann. § 20-5-103 suit may only be instituted against the deceased tort-feasor's personal representative and, as such, "the Estate was not a proper partydefendant to plaintiff's action");see alsoMcLean v. Chanabery,5 Tenn.App. 276(1926)(an "estate" is not a legal entity and cannot sue or be sued absent certain...