                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       April 19, 2016 Session

                ALICE WHEELER, ET AL. v. MARK ABBOTT, ET AL.

                      Appeal from the Chancery Court for Sevier County
                     No. 13-7-204   Telford E. Forgety, Jr., Chancellor


                 No. E2015-01214-COA-R3-CV-FILED-AUGUST 10, 2016


Catherine McCulley, Jean Abbott, Steven Abbott, Jerry Abbott, Larry Abbott, Diane
West, and Geraldine Abbott (“Plaintiffs”) sued Mark Abbott and Stephanie Abbott
(“Defendants”)1 with regard to an alleged easement located across real property in Sevier
County, Tennessee. During the pendency of the suit, Catherine McCulley died and a
motion was made to substitute her four children as party plaintiffs. Without benefit of a
hearing, the Chancery Court for Sevier County (“the Trial Court”) entered an order
allowing the substitution. The case then was tried, and the Trial Court entered its
judgment finding and holding, inter alia, that “the Plaintiffs, the heirs of Elmer Abbott,
have an easment across the property of the Defendant, Mark Abbott . . . .” Defendants
appeal to this Court raising several issues. We find and hold that the motion for
substitution and the Trial Court’s order granting the motion failed to comply with Tenn.
R. Civ. P. 25, which deprived Defendants of an opportunity to be heard prior to entry of
the order allowing substitution. We, therefore, vacate both the April 22, 2015 order
allowing substitution of parties and the June 5, 2015 judgment holding that “the
Plaintiffs” have an easement, and we remand this case for further proceedings consistent
with this Opinion.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated
                                    Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.

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  Stephanie Abbott did not join in the Notice of Appeal filed in this case. As best as we can tell from the
record on appeal, Mark Abbott and Stephanie Abbott are husband and wife. The deed granting Mark
Abbott his share of the real property involved in this case, a copy of which was attached to the complaint
as an exhibit, does not show Stephanie Abbott as a grantee of that property. For ease of reading only, we
refer in this Opinion to Defendants in the plural despite the fact that Stephanie Abbott is not participating
in this appeal.
Douglas R. Beier, Morristown, Tennessee, for the appellant, Mark Abbott.

Bruce Hill, Sevierville, Tennessee, for the appellees, Alice Wheeler; Judy Rose; Jeanne
Potvin; Harvey McCulley, Jr.; Jean Abbott; Steven Abbott; Jerry Abbott; Larry Abbott;
Diane West; and Geraldine Abbott.

                                        OPINION

                                       Background

       Plaintiffs sued Defendants in July of 2013 alleging, in pertinent part, that they had
an easement across real property located in Sevier County, Tennessee owned by
Defendants. Defendants filed a motion to dismiss for failure to state a claim. After a
hearing, the Trial Court entered its order on October 15, 2013 denying Defendants’
motion to dismiss and granting Plaintiffs’ motion to amend their complaint. Plaintiffs
filed an Amended Complaint in November of 2013. Defendants did not file a motion to
dismiss for failure to state a claim as to Plaintiffs’ Amended Complaint.

       In January of 2014, plaintiff Catherine McCulley died. A Suggestion of Death of
Catherine McCulley was filed on February 25, 2014. On March 5, 2014, Alice Wheeler,
Judy Rose, Jeanne Potvin, and Harvey McCulley, Jr. (“Catherine’s Children”) filed a
motion (“Motion for Substitution”) seeking to be substituted as party plaintiffs for their
mother Catherine McCulley. The Motion for Substitution was not accompanied by a
notice of hearing.

       The Trial Court entered an order on April 22, 2015, without benefit of hearing,
allowing the substitution of Catherine’s Children as party plaintiffs for Catherine
McCulley. The April 22, 2015 order contains the signature of the Trial Court Judge and
the signature of Plaintiffs’ attorney. The April 22, 2015 order contains neither the
signature of Defendants’ attorney nor a certificate of service showing that it was served
upon Defendants’ attorney.

       The case proceeded to trial. At the beginning of the trial, Defendants’ counsel
raised an issue with regard to what he believed to be the then still outstanding Motion for
Substitution. Defendants’ counsel was shown the April 22, 2015 order, and he stated that
was the first time he had seen this order. The Trial Court acknowledged at that time that
the order contained neither the signature of Defendants’ counsel nor a certificate of
service. After objection by Defendants’ counsel to the April 22, 2015 order and brief
argument, the Trial Court allowed the order to stand and commenced the trial. After trial,
the Trial Court entered its judgment on June 5, 2015 finding and holding, inter alia, “the
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Plaintiffs, the heirs of Elmer Abbott, have an easment across the property of the
Defendant, Mark Abbott . . . .” Defendants appeal to this Court.

                                        Discussion

        Although not stated exactly as such, Defendants raise three issues on appeal: 1)
whether the Trial Court erred in denying Defendants’ motion to dismiss for failure to
state a claim; 2) whether the Trial Court erred in allowing the substitution of Catherine’s
Children as party plaintiffs; and, 3) whether the Trial Court erred in holding that
Plaintiffs have an easement across the real property of Mark Abbott.

      First, we address whether the Trial Court erred in denying Defendants’ motion to
dismiss for failure to state a claim. As our Supreme Court has instructed:

              A motion to dismiss a complaint for failure to state a claim for which
       relief may be granted tests the legal sufficiency of the plaintiff’s complaint.
       Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011); cf. Givens
       v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 406 (Tenn. 2002).
       The motion requires the court to review the complaint alone. Highwoods
       Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009).
       Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the
       alleged facts will not entitle the plaintiff to relief, Webb v. Nashville Area
       Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011), or when the
       complaint is totally lacking in clarity and specificity, Dobbs v. Guenther,
       846 S.W.2d 270, 273 (Tenn. Ct. App. 1992) (citing Smith v. Lincoln Brass
       Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986)).

              A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the
       relevant and material factual allegations in the complaint but asserts that no
       cause of action arises from these facts. Brown v. Tennessee Title Loans,
       Inc., 328 S.W.3d 850, 854 (Tenn. 2010); Highwoods Props., Inc. v. City of
       Memphis, 297 S.W.3d at 700. Accordingly, in reviewing a trial court’s
       dismissal of a complaint under Tenn. R. Civ. P. 12.02(6), we must construe
       the complaint liberally in favor of the plaintiff by taking all factual
       allegations in the complaint as true, Lind v. Beaman Dodge, Inc., 356
       S.W.3d at 894; Webb v. Nashville Area Habitat for Humanity, Inc., 346
       S.W.3d at 426; Robert Banks, Jr. & June F. Entman, Tennessee Civil
       Procedure § 5-6(g), at 5-111 (3d ed. 2009). We review the trial court’s
       legal conclusions regarding the adequacy of the complaint de novo without
       a presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d at
       895; Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d at 700.
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SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012).

       Defendants’ motion to dismiss asserted that Plaintiffs’ complaint failed to identify
any right, title, or interest that six of the original seven Plaintiffs held in the real property
at issue in this case. The arguments Defendants advance in their brief on appeal with
regard to this issue, however, rest largely upon evidence adduced at trial, which is wholly
inapplicable to an analysis of whether the Trial Court erred in denying the motion to
dismiss. Plaintiffs’ response to the motion to dismiss asserted that these six plaintiffs
hold an interest in the property at issue by virtue of the death of Elmer Alan Abbott. The
deed to Elmer Alan Abbott was attached to Plaintiffs’ complaint as an exhibit.
Construing the complaint liberally in favor of Plaintiffs and taking all factual allegations
as true, as we must at this stage of the proceedings, we find no error in the Trial Court’s
denial of Defendants’ motion to dismiss.

       Defendants also argue in their brief on appeal that the Trial Court erred in
allowing Plaintiffs to amend their complaint. Pursuant to Tenn. R. Civ. P. 15.01, leave to
amend a complaint “shall be freely given when justice so requires.” Tenn. R. Civ. P.
15.01. “We have interpreted this provision as substantially lessening the trial court’s
discretion with regard to permitting parties to amend their pleadings.” Messer Griesheim
Indus., Inc. v. Eastman Chem. Co., 194 S.W.3d 466, 483 (Tenn. Ct. App. 2005). In the
case now before us, we find no abuse of discretion in the Trial Court’s allowing Plaintiffs
to amend their complaint.

      We also note that Defendants did not file a motion to dismiss Plaintiffs’ amended
complaint. Given all of the above, we find no error in the Trial Court’s denial of
Defendants’ motion to dismiss for failure to state a claim.

       Next, we address whether the Trial Court erred in allowing the substitution of
Catherine’s Children as party plaintiffs. Catherine’s Children filed their Motion for
Substitution pursuant to Tenn. R. Civ. P. 25, which provides, in pertinent part:

       25.01. Death. – (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 ninety
       (90) days after the death is suggested upon the record by service of a

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       statement of the fact of the death as provided hererin for the service of the
       motion, the action shall be dismissed as to the deceased party.

Tenn. R. Civ. P. 25.01(1).

       The plain and unambiguous language of Rule 25.01 clearly provides that a motion
for substitution shall be served “together with the notice of hearing . . . .” Tenn. R. Civ.
P. 25.01(1). As this Court has noted:

       Rule 25.01 clearly provides that a notice of hearing shall be served on the
       parties with regard to a motion for substitution of proper party. . . . A
       motion for substitution asks a trial court to take action and, thus, requires a
       court hearing of which all involved parties deserve notice and an
       opportunity to be heard.

Williams v. Williams, No. 2012-00162-COA-R3-CV, 2012 WL 3986328, at *2 (Tenn. Ct.
App. Sept. 12, 2012), no appl. perm. appeal filed, (emphasis in original).

       In the instant case, no hearing was noticed or held prior to the entry of the April
22, 2015 order allowing substitution of Catherine’s Children as party plaintiffs. Plaintiffs
did not comply with Tenn. R. Civ. P. 25.01(1), and Defendants thus were denied an
opportunity to be heard on the issue of whether the substitution was proper prior to entry
of the order allowing the substitution. This error is fatal to the entry of the April 22, 2015
order. We, therefore, vacate the Trial Court’s April 22, 2015 order.

        Furthermore, as the Trial Court held that “the Plaintiffs” have an easement, and we
have vacated the order allowing substitution because Defendants were denied an
opportunity to be heard on the issue of whether Catherine’s Children are proper party
plaintiffs, we are constrained also to vacate the Trial Court’s June 5, 2015 judgment. We
remand this case for further proceedings consistent with this Opinion.

                                        Conclusion

       The April 22, 2015 order and the June 5, 2015 judgment of the Trial Court are
vacated, and this cause is remanded to the Trial Court for further proceedings consistent
with this Opinion. The costs on appeal are assessed against the appellees, Alice Wheeler;
Judy Rose; Jeanne Potvin; Harvey McCulley, Jr.; Jean Abbott; Steven Abbott; Jerry
Abbott; Larry Abbott; Diane West; and Geraldine Abbott.

                                           _____________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE
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