Trial Court's Dismissal of Plaintiff's Case Upheld on Appeal Due to Her Counsel's Failure to Make a Proper Substitution for Her After She Died from Causes Unrelated to the Complained-of Injuries

 The Tennessee Court of Appeals has released its opinion in Cunningham v. Fresenius Medical Care, Inc., No. M2021-01087-COA-R3-CV (Tenn. Ct. App. June 22, 2022). The syllabus from the slip opinion reads:

In this appeal arising out of a negligence action, the plaintiff died while the litigation was pending, and no motion for substitution of the plaintiff was filed within the ninety-day period following the filing of the suggestion of death as required by Tenn. R. Civ. P. 25.01. After the defendant filed a motion to dismiss, the plaintiff’s counsel filed a motion to enlarge the time, pursuant to Tenn. R. Civ. P. 6.02. The trial court found no excusable neglect warranting enlargement of the ninety-day period and dismissed the action pursuant to Tenn. R. Civ. P. 25.01. The plaintiff appealed the trial court’s denial of its motion to enlarge and the dismissal of the suit. Discerning no error, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/barbara.cunningham.opn_.pdf.

NOTE: This case serves as a cautionary tale of what happens when a party to a lawsuit dies during the pendency of the action from causes unrelated to the complained-of injuries and a motion to substitute is not filed within ninety-days of the filing of a suggestion of death. What I am not sure about is why did Plaintiff's counsel file the suggestion of death. It was not necessary. Once it was filed, however, Plaintiff's counsel was put "on the clock" and had ninety days to get a motion for substitution filed under Rule 25.01 of the Tennessee Rules of Civil Procedure (or move for an enlargement of time). The quick takeaways from this opinion are: (1) Counsel for a plaintiff does not need to file a suggestion of death when a client dies; (2) a motion for substitution under Rule 25.01 should be filed within ninety days of the filing a suggestion of death; and (3) if a motion for substitution cannot be filed within ninety days of the filing of a suggestion of death, a motion seeking an enlargement of time should be filed under Rule 6.02 of the Tennessee Rules of Civil Procedure. 

New Tort Opinion: Summary Judgment for Defense Reversed on Appeal Because Plaintiff Had Demonstrated That a Genuine Issue of Material Fact Existed for Trial

The Tennessee Court of Appeals released its opinion the other day in Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed suit for damages alleging that she had been injured when the headstone at her deceased brother’s grave fell on her and broke bones in her hand. After Defendant, the installer of the headstone, moved for summary judgment, the trial court dismissed Plaintiff’s claims with prejudice. On appeal, we reverse that portion of the trial court’s summary judgment order dismissing Plaintiff’s claim which is based on Defendant’s alleged negligence in installing the headstone.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/sylvia_davis_v._keith_monuments.pdf.

NOTE: This is a great opinion!  It addresses the proper application of the standard of review in summary judgment proceedings, computation of time, and expert-witness qualifications.  If you have to deal with a motion for summary judgment under Tennessee law, you need to read this opinion.