Douglas v. Estate of Robertson

• Court: Tennessee Supreme Court
• Writing for the Court: O'BRIEN; REID; DAUGHTREY
• Citation: Douglas v. Estate of Robertson, 876 S.W.2d 95 (Tenn. 1994)
• Decision Date: 21 March 1994
• Parties: Lisa C. DOUGLAS, et al., Plaintiffs/Appellants, v. ESTATE OF Lee A. ROBERTSON, Defendant/Appellee.

Page 95

876 S.W.2d 95

Lisa C. DOUGLAS, et al., Plaintiffs/Appellants, v. ESTATE OF Lee A. ROBERTSON, Defendant/Appellee.

Supreme Court of Tennessee at Jackson.

March 21, 1994.

Edward B. Johnson, Somerville, for plaintiffs/appellants.

Robert L. Moore, Memphis, for defendant-appellee.

OPINION

O'BRIEN, Justice.

In this tort action for damages resulting from an automobile accident, we are asked to review the holding of the Court of Appeals, which reversed the trial court and dismissed the plaintiffs' suit against the estate of Lee Robertson. The single issue for consideration involves whether the trial judge abused his discretion in allowing an enlargement of time to substitute a party under Tenn.R.Civ.P. 6.02. We find no abuse of discretion and reverse the Court of Appeals and reinstate the judgment of the trial court.

On 14 September 1987, the plaintiffs, a husband, wife, and the couple's minor children, were injured in an automobile accident when Lee Robertson backed his car out of a private drive on to a public highway. On 13 September 1988, the plaintiffs filed a timely tort claim against Mr. Robertson for personal injury, property damage, and incidental expenses. On 8 May 1989, during the discovery portion of the proceedings, defendant Robertson died.

On 22 August 1989, the attorney for the defendant filed a suggestion of death upon the record. The following day defense counsel made an offer of judgment for $15,000 dollars that was not accepted. The plaintiffs failed to file a motion to substitute the estate within 90 days of the suggestion of death pursuant to Tenn.R.Civ.P. 25.01 and, on 22 December 1989, the defendant filed a motion to dismiss pursuant to the rule. On 27 March 1990, the plaintiffs filed a motion to enlarge time and to substitute parties. All motions were heard on 28 March 1990. On 21 April 1990, the trial court denied the defendant's motion and granted the plaintiffs' motion to enlarge time and substitute the estate of the defendant as a party. No transcript of this hearing exists, and the trial court made no findings of fact to support its decision.

The cause proceeded to trial on 26 April 1991, where the defendant renewed his motion to dismiss pursuant to Tenn.R.Civ.P. 25.01. Again, the trial court denied the motion. Defense counsel stipulated to liability and thereafter, the case was heard before a jury upon the issues of causation and damages.

The jury returned a verdict for the plaintiffs in the amount of $20,821.00. The defendant appealed on the ground that the trial court erred by not dismissing plaintiff's action for failure to file a motion for substitution of parties within the time prescribed by the rules.

Tenn.R.Civ.P. 25.01 sets forth the procedure for the substitution of parties upon a suggestion of death.

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of process. Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

Rule 25.01 clearly directs the dismissal of an action if no motion for substitution of parties is made within 90 days after suggestion of death upon the record. However, Rule 6.02, Tenn.R.Civ.P. grants the trial judge broad discretion to enlarge many of the procedural time limitations prescribed by the Rules of Civil Procedure. Rule 6.02 states in pertinent part:

When by statute or by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done, where the failure was the result of excusable neglect ...

In support of their positions, both parties rely on Wagner v. Frazier, 712 S.W.2d 109 (Tenn.App.1986). The Wagner court held that in instances of excusable neglect and, where the opposing party has not been prejudiced by the delay, Rule 25.01 Tenn.R.Civ.P. should be construed in conjunction with Rule 6.02(2) to allow substitution of parties after the directed 90 days:

Since federal rule 6(b)(2) is identical to 6.02(2) Tenn.R.Civ.P., we think our Rule 25.01 should be construed to allow substitution of parties after the ninety day period has run if the failure to move within the period is the result of excusable neglect. As is generally true, the kind of excuse that will satisfy this requirement is a function of the length of time that has passed and the possible harm to the opposite party. In this case where the suit had been fully tried and the parties were awaiting a decision from the court and the motion was made eight days after the ninety day period had run, we think the mere oversight of the plaintiff is excusable. (Emphasis added). Wagner, supra at 113.

When reviewing the record in this case, the Court of Appeals failed to note the second part of the Wagner court test. Namely, the possible harm or prejudice caused to the opposing party by the plaintiffs' failure to move for substitution within...