Joshlin v. Halford

• Court: Tennessee Court of Appeals
• Writing for the Court: Carma Dennis McGee, J., delivered the opinion of the court
• Citation: Joshlin v. Halford, 680 S.W.3d 187 (Tenn. App. 2023)
• Decision Date: 17 April 2023
• Parties: Walter JOSHLIN, et al. v. Hollis H. HALFORD, III, M.D., et al.

680 S.W.3d 187

Walter JOSHLIN, et al.

v.Hollis H. HALFORD, III, M.D., et al.

Court of Appeals of Tennessee, Western Section, AT JACKSON.

June 28, 2022 Session

FILED January 6, 2023

Application for Permission to Appeal Denied April 17, 2023

Appeal from the Circuit Court for Shelby County, No. CT-000263-13, Jerry Stokes, Judge

Amber Griffin Shaw and J. Houston Gordon, Covington, Tennessee, for the appellant, Vivian Joshlin.

Samantha Erin Bennett and Andrea N. Malkin, Memphis, Tennessee, for the appellee, Hollis H. Halford, III, M.D.

Bruce Anthony McMullen and Aubrey B. Gulledge, Memphis, Tennessee, for the

appellee, HealthSouth/Methodist Rehabilitation Hospital, LP.

Buckner Potts Wellford, Memphis, Tennessee, for the appellee, Methodist Healthcare-Memphis Hospitals.

OPINION

Carma Dennis McGee, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and J. Steven Stafford, P.J., W.S., joined.

This appeal involves a failure to timely move for substitution of parties after the death of one of the two plaintiffs. In a previous appeal, this Court directed the trial court, on remand, to determine whether the plaintiff’s response to a motion to dismiss should be construed as a motion for enlargement of time pursuant to Tennessee Rule of Civil Procedure 6.02, and if so, to determine whether the plaintiff’s failure to timely move for substitution of the parties pursuant to Tennessee Rule of Civil Procedure 25.01 was the result of excusable neglect. On remand, the trial court determined that the plaintiff’s filing should be construed as a motion for an enlargement of time. However, the trial court also found that the plaintiff failed to timely move for substitution due to counsel’s misinterpretation of the law, which, the trial court concluded, did not constitute excusable neglect. As such, the trial court granted the defendants’ motion to dismiss for failure to timely substitute parties. The plaintiff appeals. We affirm and remand for further proceedings.

I. Facts & Procedural History

This case began in 2013. Plaintiffs Walter Joshlin and wife, Vivian Joshlin sued three defendants -- Hollis H. Halford, III, M.D., Methodist Healthcare Memphis Hospitals, and HealthSouth/Methodist Rehabilitation Hospital, L.P. -- alleging medical malpractice related to Mr. Joshlin’s care in connection with a broken hip. Mrs. Joshlin sought damages for loss of consortium.

On February 25, 2014, Mr. Joshlin died from lung cancer, which was unrelated to the alleged medical malpractice. On March 25, 2014, Plaintiffs’ counsel filed a "Notice of Death" that simply stated, "Please take notice that, on February 25, 2014, Plaintiff Walter Joshlin, died in the State of Tennessee." On October 10, 2014, counsel for Dr. Halford sent a letter to Plaintiff’s counsel stating, "Where are we and where are we going? Mr. Joshlin died several months ago which means we need a Suggestion of Death and new plaintiff," (emphasis added). In response, Plaintiff’s counsel sent a letter attaching the Notice of Death she had previously filed. However, she did not file any motion for substitution of parties or address the need for one in her letter.

Eight months after this exchange, in June 2015, Dr. Halford filed a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 25.01(1), which states:

(1) 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 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.

(emphasis added). Dr. Halford noted that Plaintiffs’ counsel had filed a Notice of Death fifteen months earlier, in March 2014, and that no motion for substitution had been filed since. As such, Dr. Halford moved for dismissal with prejudice pursuant to Rule 25.01(1).

Three days later, on June 29, 2015, Plaintiffs’ counsel filed a "Motion for Sub-stitution/Motion to Amend." The motion stated that Mr. Joshlin had died on February 25, 2014, and that his wife Vivian and son Jimmy Joshlin had been appointed as co-executors of the Estate of Walter Joshlin on May 7, 2014. The motion stated that Mr. Joshlin’s cause of action did not abate at his death and could be revived by his personal representatives and/or heirs pursuant to Tennessee Code Annotated section 20-5-101, -102, and -104.¹ However, it conceded, "Revivor requires an order of substitution." Thus, the motion to substitute requested substitution of the co-executors pursuant to Rule 25.01, specifically tracking the language of Rule 25.01(1). The proposed amended complaint that was attached to the motion listed the proposed plaintiffs as: "Jimmy Joshlin and Vivian Joshlin, as personal representatives of Decedent, Walter Joshlin, and wife, Vivian Joshlin."

Dr. Halford filed a memorandum in opposition to Plaintiffs’ motion to substitute and amend. Noting that Plaintiffs’ motion for substitution was filed over a year after the ninety-day window set forth in Rule 25.01 expired, and only after the filing of a motion to dismiss, Dr. Halford asserted that the motion for substitution was untimely and should be denied. Defendant HealthSouth filed a memorandum joining in Dr. Halford’s motion to dismiss for failure to comply with Rule 25.01, and it also filed a response in opposition to Plaintiffs’ motion to substitute. HealthSouth noted that Plaintiffs had not filed a motion for an enlargement of time under Tennessee Rule of Civil Procedure 6.02, which provides, in part, "[w]hen by statute or by these rules … an act is required or allowed to be done at or within a specified time, the court for cause shown may … in its discretion, … upon motion made after the expiration of the specified period permit the act to be done, where the failure to act was the result of excusable neglect[.]" Even if such a motion had been filed, HealthSouth suggested that Plaintiffs’ failure to move for substitution within the ninety-day period was not the result of excusable neglect. HealthSouth noted that Plaintiffs did not provide "any excuse whatsoever to justify the delay." In the absence of excusable neglect, "or even any request by Plaintiff to seek relief for an enlargement of time to substitute," Health-South insisted that dismissal with prejudice was required. Defendant Methodist also joined in the motions to dismiss and the opposition to the motion to substitute.

In November 2015, Plaintiffs filed a response in opposition to the defendants’ motions to dismiss. In that response, Plaintiffs claimed that they had filed their motion to substitute "out of an abundance of caution … in an attempt to appease the Defendants." However, Plaintiffs pointed out that Mrs. Joshlin was "already a Plaintiff in this matter," due to her claim for loss of consortium. Thus, Plaintiffs suggested that the applicable rules did not require her to be substituted because she was Mr. Joshlin’s surviving spouse and also a "surviving plaintiff." As authority for this position, Plaintiffs relied on Tennessee Code Annotated section 20-5-106(a) and Tennessee Rule of Civil Procedure 25.01(2). Tennessee Code Annotated section 20-5-106(a) provides:

§ 20-5-106. Wrongful death; beneficiaries

(a) The right of action that a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by the person’s death but shall pass to the person’s surviving spouse and, in case there is no surviving spouse, to the person’s children or next of kin; to the person’s personal representative, for the benefit of the person’s surviving spouse or next of kin; to the person’s natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by them pursuant to any court order removing such person from the custody of such parents or parent; or otherwise to the person’s legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.

Tennessee Rule of Civil Procedure 25.01(2) provides:

In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

Construing these two rules together, Plaintiffs suggested that Mr. Joshlin’s right of action "automatically passed" to Mrs. Joshlin as his surviving spouse under section 20-5-106(a), and because she was already a named plaintiff, she was a "surviving plaintiff" within the meaning of Rule 25.01(2) such that substitution of parties was not necessary. Plaintiffs contended that Mrs. Joshlin could simply suggest the death upon the record and "proceed" in the action pursuant to Rule 25.01(2). Thus, Plaintiffs reasoned that there was "no neglect" or error on their part, despite the suggestions by the defendants. Even if Rule 25.01(1) did apply, however, Plaintiffs contended that the defendants were unable to show any harm or prejudice that had occurred due to their failure to timely move for substitution. They also claimed that there was "no inexcusable delay"...