                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     August 27, 2012 Session

            EZRA WILLIAMS v. STEPHEN LEON WILLIAMS, ET AL.

                   Appeal from the Chancery Court for Sullivan County
                      No. K0037464(C)     E.G. Moody, Chancellor


             No. E2012-00162-COA-R3-CV-FILED-SEPTEMBER 12, 2012


In January of 2011, Ezra Williams (“Plaintiff”) sued Stephen Leon Williams and Regions
Bank1 . Plaintiff died in May of 2011. Regions Bank filed a Suggestion of Death. No motion
for substitution of proper party was made within ninety days after Plaintiff’s death was
suggested upon the record. In July of 2011, the attorney who had represented Plaintiff prior
to Plaintiff’s death filed a Motion for Voluntary Dismissal. In October of 2011, Regions
Bank filed a Motion for Summary Judgment. The Trial Court granted the Motion for
Voluntary Dismissal without prejudice. Regions Bank appeals to this Court. We hold that
the Trial Court should have dismissed the case pursuant to Tenn. R. Civ. P. 25.01 for failure
to timely move for substitution of proper party. We, therefore, vacate the Trial Court’s
judgment and dismiss this case pursuant to Tenn. R. Civ. P. 25.01.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Arthur G. Seymour, Jr. and Matthew A. Grossman, Knoxville, Tennessee, for the appellant,
Regions Bank.

Rob Starnes, Kingsport, Tennessee, for the appellee, Ezra Williams, Deceased.




        1
         Plaintiff later was granted leave to amend his complaint to add Heritage Title & Closing Services,
LLC and Melissa A. Tootle as defendants to the suit. Stephen Leon Williams, Heritage Title & Closing
Services, LLC, and Melissa A. Tootle are not involved in this appeal.
                                         OPINION

                                        Background

              In January of 2011, Plaintiff sued Stephen Leon Williams and Regions Bank
alleging, among other things, fraud, embezzlement, and negligence in connection with a
Quitclaim Deed and Deed of Trust on a parcel of real property in Sullivan County. Plaintiff
died in early May of 2011. On May 11, 2011, Regions Bank filed a Suggestion of Death
suggesting the death of Plaintiff on the record. No motion for substitution of proper party
pursuant to Tenn. R. Civ. P. 25.01 ever was filed.

              On July 7, 2011, the attorney who had represented Plaintiff prior to Plaintiff’s
death filed a Motion for Voluntary Dismissal. On October 20, 2011, Regions Bank filed a
Motion for Summary Judgment based upon there having been no motion for substitution of
proper party filed. After a hearing on the Motion for Voluntary Dismissal and the Motion
for Summary Judgment, the Trial Court entered its Final Order on January 3, 2012 granting
the Motion for Voluntary Dismissal without prejudice and certifying the order as final
pursuant to Tenn. R. Civ. P. 54.02. Regions Bank appeals to this Court.

                                         Discussion

              Although not stated exactly as such, Regions Bank raises one issue on appeal:
whether the Trial Court erred in granting Plaintiff’s Motion for Voluntary Dismissal rather
than Regions Bank’s Motion for Summary Judgment. Plaintiff raises an issue regarding
whether the Suggestion of Death was valid when no notice of hearing was filed or served.
Because the facts involved in this appeal are undisputed and the issue presents a question of
law, we review the Trial Court’s decision de novo without a presumption of correctness.
E.g., Sowell v. Estate of Davis, No. W2009-00571-COA-R3-CV, 2009 Tenn. App. LEXIS
860, at *7 (Tenn. Ct. App. Dec. 21, 2009), no appl. perm. appeal filed.

             We first will address Plaintiff’s issue regarding whether the Suggestion of
Death was valid absent a notice of hearing. As pertinent to this appeal, Tenn. R. Civ. P. 25
provides:

       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

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       substitution is made not later than ninety (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.

Tenn. R. Civ. P. 25.01.

                Plaintiff argues in his brief on appeal that because Regions Bank failed to file
and serve a notice of hearing with its Suggestion of Death, that the Suggestion of Death was
invalid. Plaintiff has misread Rule 25.01 and is mistaken. Rule 25.01 neither requires nor
even provides for a hearing on the Suggestion of Death. 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. Rule 25.01 contains no requirement that a notice of hearing be filed and served
with regard to a Suggestion of Death. This distinction makes sense. 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. Conversely, a suggestion of
death requires no hearing by the trial court. The purpose of the filing of a suggestion of
death is to trigger the running of the 90 day period within which a motion for substitution of
proper party may be filed. As a suggestion of death without either a motion for substitution
of proper party being filed or the 90 day period running asks nothing of the trial court, there
is no need to file a notice of hearing. It is Rule 25.01 itself that requires action by a trial
court if a motion for substitution of proper party is not filed timely. Plaintiff’s argument is
without merit. The record on appeal reveals that the Suggestion of Death filed by Regions
Bank was properly served upon the parties and constitutes a valid suggestion of death which
triggered the running of the 90 days within which to file a motion for substitution of proper
party.

              We turn now to Regions Bank’s issue regarding whether the Trial Court erred
in granting Plaintiff’s Motion for Voluntary Dismissal rather than Regions Bank’s Motion
for Summary Judgment. Importantly, Tenn. R. Civ. P. 25.01 also must be taken into account
with regard to this issue. As this Court stated in Sowell v. Estate of Davis, “the plain
language in Rule 25.01 mandates a dismissal for failure to comply with the Rule’s
requirement that a proper party be timely substituted for a deceased party.” Sowell, 2009
Tenn. App. LEXIS 860, at *8.

               The record on appeal reveals that Regions Bank filed the Suggestion of Death
on May 11, 2011. This filing triggered the ninety day period within which to file a motion
for substitution pursuant to Tenn. R. Civ. P. 25.01. Thus, the parties or “the successors or
representatives of [Plaintiff] …” had until August 9, 2011 to file a motion for substitution
of proper party. No motion for substitution of proper party was filed. The Trial Court held

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its hearing on the Motion for Voluntary Dismissal and the Motion for Summary Judgment
on December 22, 2011, more than ninety days after the filing of the Suggestion of Death.

              Pursuant to Tenn. R. Civ. P. 25.01:

       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 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.

Tenn. R. Civ. P. 25.01 (emphasis added). Given the mandatory language of Rule 25.01, the
Trial Court should have dismissed Plaintiff’s action pursuant to Tenn. R. Civ. P. 25.01, rather
than granting either Plaintiff’s Motion for Voluntary Dismissal or Regions Bank’s Motion
for Summary Judgment. We, therefore, vacate the Trial Court’s judgment and dismiss this
case pursuant to Tenn. R. Civ. P. 25.01.

                                         Conclusion

             The judgment of the Trial Court is vacated and this action is dismissed pursuant
to Tenn. R. Civ. P. 25.01. This cause is remanded to the Trial Court for collection of the
costs below. The costs on appeal are assessed against the appellant, Regions Bank, and its
surety.




                                                    _________________________________
                                                    D. MICHAEL SWINEY, JUDGE




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