McCracken v. Brentwood United Methodist Church

• Decision Date: 09 July 1997
• Citation: 958 S.W.2d 792
• Parties: Shirley Jean McCRACKEN and Alan McCracken, Plaintiffs/Appellants, v. BRENTWOOD UNITED METHODIST CHURCH, Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 792

958 S.W.2d 792

Shirley Jean McCRACKEN and Alan McCracken, Plaintiffs/Appellants, v. BRENTWOOD UNITED METHODIST CHURCH, Defendant/Appellee.

Court of Appeals of Tennessee Middle Section, at Nashville.

July 9, 1997.

Application for Permission to Appeal

Denied by Supreme Court

Dec. 29, 1997.

Stanley M. Chernau, Linda F. Burnsed, Chernau, Chaffin & Burnsed, Nashville, for Plaintiffs/Appellants.

Frank Thomas, Leitner, Warner, Moffitt, Williams, Dooley & Napolitan, Nashville, for Defendant/Appellee.

OPINION

KOCH, Judge.

This appeal involves a woman who broke both ankles in a fall at church. The woman and her husband filed suit in the Circuit Court for Williamson County against the church and others. The trial court granted the church's motion for summary judgment based on the statute of limitations and the joint enterprise rule. The woman and her husband perfected this appeal after obtaining post-judgment relief from an inappropriate interlocutory appeal. We have determined that the trial court properly granted the post-judgment relief but erred in summarily dismissing the complaint.

I.

Shirley Jean and Alan McCracken are members of the Brentwood United Methodist Church. On June 20, 1993, less than one month after joining the church, Ms. McCracken fell as she was entering the church's new sanctuary from an older portion of the building containing the church's classrooms. Persons entering the sanctuary at that location had to climb a flight of stairs and then pass through a doorway where there was a 2 3/4 inch change in the elevation of the floor. Ms. McCracken stumbled and fell when she caught one of her shoes on the threshold, breaking both ankles and injuring her shoulder.

Ms. McCracken's ankle injuries required several surgeries, and she was required to undergo rehabilitation for nearly one year before regaining reasonable mobility. The McCrackens were reluctant to assert a claim against the church; however, the church's business administrator and senior pastor assured them that the church carried adequate insurance for injuries on church property. Accordingly, the McCrackens submitted a claim to the church's insurance company and received $5,000 to help defray some of their medical expenses.

The McCrackens retained a lawyer who continued settlement discussions with the church's insurance company. When it became evident that a satisfactory settlement was not forthcoming, the McCrackens filed suit on June 17, 1994--three days before the statute of limitations would have run on their claims. The complaint named as defendants the Brentwood United Methodist Church Foundation, Inc. (the "foundation") and the architect and construction company that designed and constructed the sanctuary. ¹

The church first learned of the McCrackens' lawsuit on June 20, 1994 when a Nashville newspaper reporter telephoned the senior pastor to get a comment about the case. The summons and the McCrackens' original complaint were served on the church's financial administrator on June 28, 1994. The administrator recognized immediately that the McCrackens had sued the foundation rather than the Brentwood United Methodist Church (the "church"). ² In his June 28, 1994 letter transmitting the complaint and summons to the church's insurance company, the administrator stated: "The plaintiff has sued the wrong entity. Would this present grounds for the dismissal of this case?"

On July 28, 1994, the foundation moved for summary judgment on the grounds that it owned no property and that it was not involved with the construction of the new church building. Approximately ten days later, the McCrackens requested permission to file a second amended complaint for the purpose of adding the church as a defendant. The trial court granted the motion, and the McCrackens filed their second amended complaint on September 22, 1994. One week later, the church moved for summary judgment based on the one-year statute of limitations in Tenn.Code Ann. § 28-3-104(a) (Supp.1996).

The trial court filed a memorandum opinion on February 1, 1995, granting the church's motion for summary judgment on two grounds. First, the trial court determined that the McCrackens could not take advantage of the relation back provisions in Tenn.R.Civ.P. 15.03 and, therefore, that their claims against the church in their second amended complaint were time-barred. Second, the trial court, relying on the joint enterprise defense, held that the McCrackens could not sue the church because it was an unincorporated association of which they were members. The February 13, 1995 summary judgment order stated specifically that the order constituted a final judgment under Tenn.R.Civ.P. 54.02 on all claims against the church.

The McCrackens requested the trial court to "reconsider" its decision to grant the summary judgment ³ and, in the alternative, to grant them permission to pursue an interlocutory appeal. ⁴ On April 20, 1995, the trial court denied the motion to reconsider but granted the McCrackens permission to pursue an interlocutory appeal. This court denied the McCrackens' application for an interlocutory appeal on May 31, 1995, because they were entitled to an appeal as of right. McCracken v. Brentwood United Methodist Church, App. No. 01A01-9505-CV-00204 (Tenn.Ct.App. May 31, 1995).

On June 13, 1995, the McCrackens requested this court to grant relief from their failure to file a timely notice of appeal from the trial court's April 20, 1995 order. On June 22, 1995, we denied the motion but suggested that it would be appropriate to seek this relief from the trial court. McCracken v. Brentwood United Methodist Church, App. No. 01A01-9505-CV-00204 (Tenn. Ct.App. June 21, 1995). On July 7, 1995, the trial court vacated and re-entered the portion of its April 20, 1995 order denying the McCrackens' motion to reconsider. Thereafter, the McCrackens filed a notice of appeal on July 21, 1995.

II.

TENN.R.CIV.P. 60.02

RELIEF FROM JUDGMENT

We turn first to the church's assertion that the McCrackens are not entitled to Tenn.R.Civ.P. 60.02 relief from their failure to file a notice of appeal within thirty days following the entry of the trial court's April 20, 1995 order denying their motion to reconsider the summary judgment. The church asserts that the McCrackens' erroneous pursuit of an interlocutory appeal is not the type of mistake, inadvertence, or excusable neglect that warrants extraordinary relief from the judgment. We disagree.

The filing requirements for notices of appeal in civil cases are mandatory and jurisdictional. Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn.Ct.App.1994); John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422, 424 (Tenn.Ct.App.1983). While neither the trial nor the appellate courts may waive or expand the time for filing a notice of appeal, First Nat'l Bank v. Goss, 912 S.W.2d 147, 148 (Tenn.Ct.App.1995), a trial court may grant an appellant relief from an untimely notice of appeal in unusual or compelling circumstances. See Moody v. Moody, 681 S.W.2d 545, 546 (Tenn.1984); Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.1976); Jefferson v. Pneumo Servs. Corp., 699 S.W.2d 181, 184-85 (Tenn.Ct.App.1985). This relief generally takes the form of vacating and re-entering the final order.

Parties seeking Tenn.R.Civ.P. 60.02 relief must substantiate their request by clear and convincing evidence. Davidson v. Davidson, 916 S.W.2d 918, 923 (Tenn.Ct.App.1995); Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn.Ct.App.1990). These requests are addressed to the trial court's discretion, and thus appellate courts review decisions regarding Tenn.R.Civ.P. 60.02 relief using the abuse of discretion standard. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn.1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn.1991); Day v. Day, 931 S.W.2d 936, 939 (Tenn.Ct.App.1996); Marr v. Montgomery Elevator Co., 922 S.W.2d 526, 528 (Tenn.Ct.App.1995); John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d at 424.

This case presents one of the rare circumstances warranting Tenn.R.Civ.P. 60.02 relief. The McCrackens' failure to file a timely notice of appeal following the April 20, 1995 order was not just a product of their lawyers' failure to appreciate the significance of the Tenn.R.Civ.P. 54.02 designation in the February 13, 1995 order. ⁵ It was also caused by the trial court's decision to grant them an interlocutory appeal even though the February 13, 1995 order was final. The procedural posture of the appeal would have been clear had the trial court denied the McCrackens' application for interlocutory appeal on the ground that they were entitled to appeal as of right. However, the order granting the interlocutory appeal could have induced the McCrackens' lawyer to conclude that filing a notice of appeal was no longer necessary. Accordingly, we find that the trial court correctly granted the McCrackens Tenn.R.Civ.P. 60.02 relief to enable them to file a timely notice of appeal from its April 20, 1995 order. ⁶

III. RELATION BACK UNDER TENN.R.CIV.P. 15.03

The McCrackens take issue with the trial court's decision that they could not take advantage of Tenn.R.Civ.P. 15.03's relation back provision because the church did not have notice of their suit before the statute of limitations expired. They insist that the church received timely notice of the suit when its senior pastor received a telephone call from a newspaper reporter requesting comment about their suit. While this notice was extremely informal, we find that it satisfies Tenn.R.Civ.P. 15.03's requirements.

Plaintiffs who file their lawsuit at or near the end of the statute of limitations period face a difficult predicament if they make a mistake regarding the name of the defendant. To avoid the statute of limitations extinguishing their claim against misnamed defendants, Tenn.R.Civ.P. 15.03 permits these plaintiffs to amend their complaint to correct the misnomer and provides...