                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       August 2000 Session

               CARL O. KOELLA, JR. v. FRED McHARGUE, ET AL.

                       Appeal from the Circuit Court for Blount County
                       No. E-17180   C. K. Smith, Judge, By Designation

                                     FILED AUGUST 16, 2000

                                  No. E1999-02752-COA-R3-CV


This is the second time that this case has been before us on appeal. On the first appeal, which was
filed with respect to an order entered pursuant to Tenn. R. Civ. P. 54.02, we affirmed the trial court’s
grant of partial summary judgment to the plaintiff on the primary issue raised by the original
complaint for declaratory judgment. While that case was pending on appeal, the original plaintiff,
Carl O. Koella, Jr., died, and, on motion of his counsel, we entered an order substituting his widow,
Maribel Koella, in his place. On remand, the plaintiff -- not otherwise identified in the pleading --
filed a motion in the trial court to dismiss the defendants’ still-pending counterclaim. That motion
was based on the failure of the defendants, in their capacity as counter-plaintiffs, to file a motion “to
substitute the proper party for [Mr. Koella] in the trial court.” The trial court granted the motion.
We reverse.

              Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court
                                Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY , JJ., joined.

Boyd W. Venable, III, Sevierville, Tennessee, for the appellants, Fred McHargue and wife, Grace
McHargue.

Robert L. Kahn, Knoxville, Tennessee, for the appellee, Maribel Koella.

                                              OPINION

                                                   I.

        This case started when Carl O. Koella, Jr., filed a complaint for declaratory judgment. Mr.
Koella sought a declaration that the defendants’ right of first refusal with respect to Mr. Koella’s 88-
acre tract of land had expired. Mr. Koella asked for an order requiring the defendants to execute a
release of their right of first refusal.
       The defendants filed an answer joining issue. Their answer was accompanied by a
counterclaim seeking, inter alia, compensatory damages and other relief pertaining to the parties’
dealings and Mr. Koella’s use of his land, which use had allegedly damaged an adjoining tract of
land owned by the defendants.

        Mr. Koella filed a motion for partial summary judgment as to his complaint. The trial court
granted the motion. The court directed that its order “be entered as a final judgment, there being no
just reason for delay.” See Tenn. R. Civ. P. 54.02. The first appeal followed.

        On January 14, 1998, while the first appeal was pending before us, Mr. Koella died. His
counsel filed a motion in the Court of Appeals on February 6, 1998, seeking to substitute Mr.
Koella’s widow, Maribel Koella, “as [p]laintiff/[a]ppellee in this cause.” We granted the motion by
order entered February 12, 1998. Thereafter, we affirmed1 the trial court’s grant of partial summary
judgment and remanded to the trial court.2

        After this case was remanded to the trial court, “counsel for the [p]laintiff/[c]ounter
[d]efendant” filed a “suggestion of death” of Mr. Koella in the trial court. After the passage of 92
days, the same counsel filed a motion to dismiss the defendants’ counterclaim because of the failure
of the defendants to file a motion to substitute a new party for Mr. Koella within 90 days “after the
service of a suggestion of death of a party.” The motion to dismiss was based on the language of
Tenn. R. Civ. P. 25.01.3 The motion was met by the defendants’ response pointing out that an order
of substitution had been entered in the Court of Appeals on February 17, 1998.4

       On December 6, 1999, the trial court entered an order dismissing the defendants’
counterclaim with prejudice. This second appeal followed.




       1
           Koella v. McHargue, 976 S.W.2d 658 (T enn. Ct. App. 1998).

       2
           The Su preme Court su bseque ntly denie d the defe ndants’ a pplication for perm ission to app eal.

       3
           Tenn. R. Civ . P. 25.01(1) pro vides as follows:

                   If a party die s and the c laim is not th ereby ex tinguishe d, 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 statemen t of the fact o f the death
                   as provided herein for the service of the mo tion, the actio n shall be d ismissed a s to
                   the deceased party.

       4
           As noted earlier, our order was actually entered on February 12, 1998.

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                                                                II.

        On the first appeal, Mr. Koella’s counsel asked us to substitute Mr. Koella’s widow as the
party plaintiff/appellee. This request was filed pursuant to Tenn. R. App. P. 19.5 We granted
counsel’s motion and Maribel Koella was substituted as the appropriate party. When this occurred,
the deceased ceased to be the named party.6 Our subsequent remand had the effect of remanding this
case with a new party -- Maribel Koella. This is the inescapable conclusion from the proceedings
on the first appeal.

        The plaintiff -- apparently Maribel Koella -- contends that our substitution of Mr. Koella’s
widow in his stead was not enough. She contends that Tenn. R. Civ. P. 25.01 mandates that the
defendants are required to substitute someone -- apparently Maribel Koella -- for the original
counter-defendant, the deceased Carl O. Koella, Jr., on the counterclaim. She contends that the fact
that this subject is addressed in both the Rules of Civil Procedure and the Rules of Appellate
Procedure proves that a substitution at both levels is required. She cites no Tennessee case authority
in support of this position.

        We disagree with Mrs. Koella’s reading of these two rules. The reason that the subject of
the death of a party is addressed in both sets of rules is obvious: both trial courts and appellate courts
are faced with situations where a party dies “on their watch.” The Rules of Civil Procedure address
what must be done if a party dies while the case is pending in the trial court, while the Rules of
Appellate Procedure outline the proper procedure if death occurs while the case is on appeal. When
we substituted Mrs. Koella for her late husband, she was substituted for all purposes -- as plaintiff,
as appellant, and as counter-defendant. See 1 Am.Jur.2d Abatement, Survival, and Revival § 124
(1994) (“An action that is pending in the appellate court at the time of death of a party may be
revived by order of that court, and when so revived, no further order is necessary after remand to the
trial court.”).7

        This case was remanded to the trial court with a new party as plaintiff and counter-defendant.
There was no need for further substitution. There was no need to do that which had already been
fully done by us. If one or both of the parties had wanted to memorialize the substitution once the
case was back in the trial court, they could have been accomplished this by filing a copy of our order,

         5
             Tenn. R. A pp. P. 19(a) pro vides, in pertinent part, as follow s:

                     If a party dies after a notice o f appeal is filed or wh ile a proceeding is oth erwise
                     pending in the appellate court and the claim sought to be enforced is not thereby
                     extinguished, the a ppellate court m ay order substitution of the proper p arties.

         6
             We co ntinue to u se the captio n as it appe ars on the original co mplain t.
         7
           The appellee c ontend s that the case cited in Am .Jur., Roberts v. Criss , 266 F. 296 (2nd Cir. 1920), does not
support the text found in the treatise. We do not find it necessary to reach this assertion. Reading Tenn. R. Civ. P. 25.01
and Tenn. R. App. P. 19 in pari ma teria, see Belle-Aire Village, Inc. v. Ghorley, 574 S.W.2d 723, 726 (T enn. 1978),
we are sa tisfied that ou r interpretatio n of these two related rules is corre ct.

                                                                -3-
by stipulation, or by the entry of an agreed order. The invocation of Tenn. R. Civ. P. 25.01 was not
necessary or appropriate.

                                                III.

       The judgment of the trial court is reversed and this case is remanded for further proceedings,
consistent with this opinion. Costs on appeal are taxed to the appellee, Maribel Koella.



                                                       ___________________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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