                                                                                           12/21/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  July 18, 2018 Session

         BILL E. OWENS, ET AL. v. OTTO MUENZEL, JR., ET AL.


                   Appeal from the Circuit Court for Sevier County
                    No. 16-CV-214-I Carter Scott Moore, Judge




                             No. E2018-00199-COA-R3-CV



This appeal arises from an action for personal injuries incurred in a vehicle collision. The
alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs, unaware
of the death of the decedent, commenced this action and named him as a defendant. The
plaintiffs also sued their uninsured/underinsured motorist insurance carrier. Upon
learning of the death of the decedent, the plaintiffs moved for the trial court to appoint an
administrator ad litem. The trial court eventually dismissed the matter in its entirety with
prejudice upon finding, inter alia, that it did not possess subject matter jurisdiction to
appoint an administrator ad litem and that the action was barred by the statute of
limitations. We affirm.

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

JOHN W. MCCLARTY, J. delivered the opinion of the Court, in which D. MICHAEL
SwINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Donald Capparella, Nashville, Tennessee, and Sidney W. Gilreath, Knoxville, Tennessee,
for the appellants, Bill E. Owens and Sandra S. Madden.

David C. Hollow, Knoxville, Tennessee, for the deceased appellee, Otto Muenzel, Jr.

Elijah T. Settlemyre and Terrill L. Adkins, Knoxville, Tennessee, for the appellee,
Progressive Hawaii Insurance Corporation.
                                                OPINION

                                          I. BACKGROUND

       In this appeal, Bill E. Owens and Sandra S. Madden (“Appellants”) are appealing
the trial court’s grant of a motion of dismissal with prejudice. Appellants and Otto
Muenzel, Jr. (“Deceased” or “Muenzel”) were involved in a vehicle wreck on May 11,
2015, that caused personal injuries to Appellants. On March 30, 2016, Appellants filed a
complaint against Muenzel. It is undisputed that Appellants’ suit was filed within the
one-year limitations period for filing personal injury actions under Tennessee Code
Annotated section 28-3-104 (“[W]ithin one (1) year after the cause of action accrued”).
However, the original summons for Muenzel was soon returned with the following
notation: “Return to Sender, Unable to Forward as Addressed, Unable to Forward
Deceased.” Appellants were advised by State Farm Insurance Company that Muenzel, its
insured, had passed away after the accident.1

       Tennessee is not a “direct action” state where plaintiffs can sue the liability carrier
of the defendant who allegedly caused the harm. Seymour v. Sierra, 98 S.W.3d 164, 165
(Tenn. Ct. App. 2002). On April 12, 2016, Appellants timely served and proceeded with
an action against their uninsured/underinsured motorist carrier, Progressive Hawaii
Insurance Corporation (“Progressive”), in accordance with Tennessee Code Annotated
section 56-7-1206(d).2 Such service allows the company to defend against the claim, in
the name of the owner of the uninsured vehicle, or in its own name if it wishes. Winters
v. Estate of Jones, 932 S.W.2d 464, 465 (Tenn. Ct. App. 1996). On April 29, 2016,
Progressive answered and averred that Appellants “have not complied with” conditions
of the policy. Progressive “specifically plead[ed] lack of notice in compliance with the
Uninsured Motorist Act as set out in Tennessee Code Annotated, Section 56-7-1201, et
seq.”

       Although Muenzel died before Appellants filed their complaint for injuries
sustained in the car accident, Tennessee Code Annotated section 20-5-103, the survival

1
    The record reveals that Muenzel died on November 14, 2015.
2
 (d) In the event that service of process against the uninsured motorist, which was issued to the motorist’s
last known address, is returned by the sheriff or other process server marked, “Not to be found in my
county,” or words to that effect, . . . the service of process against the uninsured motorist carrier, pursuant
to this section, shall be sufficient for the court to require the insurer to proceed as if it is the only
defendant in the case.

(e) In the event the uninsured motorist’s whereabouts is discovered during the pendency of the
proceedings, an alias process may issue against the uninsured motorist. In such a case, the uninsured
motorist shall be allowed a reasonable time within which to plead to the original process, and then the
case may proceed against the uninsured motorist as if the motorist was served with process in the first
instance. A copy of the summons served on Progressive does not appear in the technical record.
                                                     -2-
statute, makes it clear that the death of Deceased did not foreclose Appellants’ cause of
action in this tort case. Tennessee Code Annotated section 20-5-103 provides as follows:

                In all cases where a person shall commit a tortious or
                wrongful act causing injury or death to another, or property
                damage, and such person committing such wrongful act shall
                die before suit is instituted to recover damages therefor, such
                death of such person shall not abate any cause of action which
                the plaintiff would have otherwise had, but such cause of
                action shall survive and may be prosecuted against the
                personal representative of such tort-feasor or wrongdoer.

See also Estate of Russell v. Snow, 829 S.W.2d 136, 137 (Tenn. 1992). The statute
“preserve[s] the cause of action that belonged to the person before the one who caused
the injury died.” Liput v. Grinder, 405 S.W.3d 664, 672 (Tenn. Ct. App. 2013).

      As Appellants found out, Muenzel did not have a personal representative at the
time Appellants filed their complaint. 3 When there is no personal representative of a
deceased tortfeasor upon whom process can be served, a plaintiff is entitled to have one
appointed pursuant to Tennessee Code Annotated section 30-1-109:

                (a)     In all proceedings in the probate or chancery courts, or
                any other court having chancery jurisdiction, where the estate
                of a deceased person must be represented, and there is no
                executor or administrator of such estate, or the executor or
                administrator thereof is interested adversely thereto, it shall
                be the duty of the judge or chancellor of the court, in which
                such proceeding is had, to appoint an administrator ad litem
                of such estate for the particular proceeding, and without
                requiring a bond of him, except in a case where it becomes
                necessary for him to take control and custody of property or
                assets of the estate of his intestate, when he shall execute a
                bond, with good security, as other administrators are required
                to give, in such amounts as the chancellor or judge may order,
                before taking control and custody of such property or assets.

                (b)     Such appointment shall be made whenever the facts
                rendering it necessary shall appear in the record of such case,
                or shall be made known to the court by the affidavit of any

3
 No estate was ever opened and no personal representative was appointed. Appellants’ affidavit noted
that “[a]n Administrator Ad Litem . . . will allow the litigation to proceed to a resolution . . . with State
Farm’s policy of insurance providing an attorney for the Defendant.”
                                                    -3-
                   person interested therein; and, in such proceedings in the
                   chancery court, the chancellor at chambers or clerk and
                   master of such court on a rule day shall have authority to
                   make such appointment in vacation.

        On May 20, 2016, Appellants filed a motion with the trial court, a circuit court,
requesting it to appoint an administrator ad litem for Deceased in accordance with
Tennessee Code Annotated section 30-1-109.4 The appointment of the administrator ad
litem was sought for the purpose of providing the legal entity for service of process so
that the damage suit filed in the law court could be prosecuted. See Estate of Russell, 829
S.W.2d at 140 n. 1. However, the Tennessee Supreme Court observed in Brooks v.
Garner, 254 S.W.2d 736, 737 (Tenn. 1953) that a circuit court was not a court authorized
to appoint administrators ad litem. The Court related:

                   Neither . . . [Tennessee Code Annotated section 30-1-109],
                   nor any other, is cited as authority to support the practice of
                   asking a Circuit Judge, in a law case, for unliquidated
                   damages, to appoint an Administrator ad litem. . . .
                   [Tennessee Code Annotated section 30-1-109] provides for
                   the appointment of administrators ad litem, and defines the
                   courts authorized to make the appointment as “probate or
                   chancery courts, or any other court having chancery
                   jurisdiction.” Clearly, a Circuit Court, in trying a suit at law
                   for unliquidated damages in a negligence case, is not such a
                   court.5

Id.

       Nevertheless, the trial court subsequently appointed Charles Sexton, an attorney,
to that role.6 On October 19, 2016, a Suggestion of Death noting Muenzel’s death was
filed by Appellants.7 Subsequently, the court initiated an Order of Revivor pursuant to




4
    According to Progressive and Deceased, the motion was not served upon its counsel.
5
 “[U]nliquidated damages are damages that have not been determined or calculated, or not yet reduced to
a certainty in respect to amount.” 1 Tenn. Ct. Prac. § 3:7 n. 1 (2017). “Liquidated damages means
damages made certain or fixed by agreement of the parties or by operation of law.” Id.
6
 The order, entered ex parte, was not served upon counsel for Progressive or Deceased. There was no
hearing on the motion.
7
    This pleading was served on Progressive.
                                                    -4-
Tennessee Code Annotated section 20-5-104,8 reviving the suit in the name of Sexton,
the “heretofore appointed Administrator Ad Litem.”9

       On October 20, 2016, Appellants moved to amend to file an amended complaint to
add Charles Sexton, Administrator Ad Litem, as a defendant and to issue process upon
him.10 On November 1, 2016, the trial court ordered the amended complaint to be filed.
An attorney appeared for Deceased and answered the original complaint on November 8,
2016, but claimed that neither the order of November 1 nor the amended complaint filed
on November 10, 2016, had been served on Deceased.11

       Approximately eight months later, on July 7, 2017, Progressive moved for
summary judgment, asserting that (1) it could not be held liable as Appellants’
uninsured/underinsured motorist insurance carrier because Appellants failed to properly
and timely bring an action against and serve with process either Deceased’s personal
representative or properly appointed administrator ad litem prior to the running of the
applicable statute of limitations and that (2) the order entered by the trial court appointing
Sexton as administrator ad litem was void due to the circuit court lacking subject matter
jurisdiction. According to Progressive, “In order to impose liability on an uninsured
motorist . . . the plaintiff must not only serve the uninsured motorist carrier, but must also
properly serve the alleged tortfeasor within the applicable statute of limitations.” See
Liput, 405 S.W.3d at 671. A plaintiff who fails to establish legal liability against a
defendant tortfeasor cannot impose liability upon the uninsured motorist carrier for the
acts of the same tortfeasor. Winters v. Estate of Jones, 932 S.W.2d 464, 465-66 (Tenn.
Ct. App. 1996). As long as a viable cause of action exists against a tortfeasor, the insurer
has a right of subrogation for any payments made on the tortfeasor’s behalf. Id. at 466.
As noted further in Winters,

                  [T]he statute was not meant to benefit the insured at the cost
                  of stripping the insurer of its right to recover against the
                  tortfeasor. Thus the requirement of service upon the
                  tortfeasor is not imposed on the plaintiff as an empty
                  formality, but as a practical means of maintaining the
                  insurer’s right to recover from the responsible party, once it
                  has paid the policyholder.


8
 If no person will administer the estate of a deceased plaintiff or defendant, the suit may be revived by or
against the heirs of the decedent.
9
    The order was served on Progressive.
10
     This motion was served on Progressive. Only later did Deceased receive it.
11
     The statute of limitations expired on November 9, 2016.
                                                    -5-
Id.

       As noted earlier, under Tennessee Code Annotated section 28-3-104, all actions
for personal injury must be commenced within one year from the date of injury.
However, when the tortfeasor is deceased, “the statute of limitations for the original
action will toll for the period of time between death and the appointment of the personal
representative, up to six months following death.” Tenn. Code Ann. § 28-1-110; see also
Vaughn v. Morton, 371 S.W.3d 116, 118 (Tenn. Ct. App. 2012). As noted by
Progressive, in this case

                the subject accident occurred on May 11, 2015 and Otto
                Muenzel, Jr. died on November 14, 2015. . . . As such, 186
                days elapsed between the subject motor vehicle accident and
                Otto Muenzel, Jr.’s death. Pursuant to Tennessee Code
                Annotated § 28-1-110, the statute of limitations tolled for six
                months beginning on the date of his death, as an estate was
                never opened for [defendant] Muenzel. This six-month
                tolling period extended from November 14, 2015 to May 14,
                2016 when the statute of limitations once again began to run.
                At that time, 179 days remained on the one-year statute of
                limitations, meaning the statute of limitations ran in this
                matter on November 9, 2016. Thus, [Appellants] had until
                November 9, 2016 to have an Administrator Ad Litem
                appointed for the Estate of Otto Muenzel, Jr. and to amend
                their complaint to add the Administrator Ad Litem as the
                proper defendant.

Under the facts of this case, according to Progressive, Appellants failed to timely bring an
action against and serve process on a properly appointed administrator ad litem prior to
the running of the applicable statute of limitations. Progressive further argued that
Tennessee Code Annotated section 30–1–109(a) does not give the circuit court authority
to appoint an administrator ad litem.

        Appellants filed their response three months later on the morning of the October
11, 2017 hearing. They claimed that Progressive had waived its defense regarding the
trial court’s lack of subject matter jurisdiction. Appellants noted that Progressive was
served with a copy of the October 2016 Order of Revivor. They contended that prior to
the expiration of the statute of limitations, Progressive’s counsel knew it planned to argue
that the court was without authority to appoint an administrator ad litem but chose not to
bring the issue to the court’s attention.12 According to Appellants, it was incumbent upon

12
  Progressive’s counsel told the court that his client did not “have any knowledge that an administrator ad
litem had been appointed in this matter until “sometime after October 27, 2016.”
                                                   -6-
Progressive to file an amended answer raising the affirmative defense prior to the running
of the statute of limitations. They argued that Progressive owed a duty of candor to the
trial court.

       Rule 9.01 of the Tennessee Rules of Civil Procedure requires that an issue as to
the legal capacity of a party to be sued in a representative capacity be raised by specific
averment. In the past, in a case involving section 20-5-103, the Supreme Court held:

              An action against an alleged tortfeasor who is deceased can
              only be prosecuted against the personal representative of such
              decedent. To raise the issue of lack of legal existence or
              capacity in this case, it was necessary that defendant . . .
              assert in clear and unmistakable English, that has a single
              meaning, to wit: that no party having the legal capacity to
              represent the decedent has been sued or served with process .
              ...

              . . . [W]e hold that defendant did not raise by motion or by
              specific negative averment the issue of the legal existence of
              the estate in the first action. Therefore, defendant waived that
              issue.

Goss v. Hutchins, 751 S.W.2d 821, 826 (Tenn. 1988). However, effective July 1, 2009,
Rule 12.08 of the Tennessee Rules of Civil Procedure was amended to permit raising the
defense of lack of capacity under Rule 9.01 as late as at the “trial on the merits.” See 3
Tenn. Prac. Rules of Civil Procedure Ann. § 12:10 (4th ed.) (Author’s Comments); Rule
12.08 Advisory Comments (2009).

       In the alternative, Appellants asserted that they could still proceed against
Progressive in a direct action pursuant to Tennessee Code Annotated section 56-7-
1206(d). Appellants did not raise any argument that the circuit court had jurisdiction to
appoint an administrator ad litem, nor did they argue that the trial court should have
transferred a portion of the case to a court possessing subject matter jurisdiction over the
relevant issue.

        At the hearing on October 11, 2017, the court stated as follows: “It is the opinion
of this Court that the order appointing Mr. Sexton administrator ad litem was beyond the
jurisdiction of this Court and therefore void . . . because the Court didn’t have jurisdiction
to appoint him. . . .” The court’s order, filed on November 8, 2017, allowed Appellants
to pursue Progressive as a party defendant under Tennessee Code Annotated section 56-
7-1206(d), pursuant to which a plaintiff may proceed directly against an uninsured
motorist carrier “in the event that service of process against the uninsured motorist . . . is
returned by the sheriff or other process server marked, ‘Not to be found in my county,’ or

                                             -7-
words to that effect . . . .” According to Appellants, because Muenzel “was not found for
service of process purposes” (he was deceased and not available for service of process),
they had fully complied with the uninsured motorist statute and could proceed in a direct
action against Progressive, their own uninsured motorist insurance carrier.

       On October 25, 2017, counsel for Deceased filed a motion to dismiss for lack of
jurisdiction, insufficient service of process, and failure to state a claim from which relief
could be granted. Progressive filed a motion for reconsideration that argued the provision
of the uninsured motorist carrier statute that the court had relied upon applies only when
the whereabouts of the alleged tortfeasor are unknown—not when the known tortfeasor is
deceased. Appellants’ responses failed to contest the finding of the trial court that it
lacked subject matter jurisdiction to appoint an administrator ad litem and did not argue
that the court should have transferred the action. On January 26, 2018, the trial court
found as follows:

              As already held by Senior Judge Donald Harris, the Circuit
              Court lacked subject matter jurisdiction to appoint an
              administrator ad litem for the Estate of Otto Muenzel, Jr.
              pursuant to Tennessee Code Annotated § 30-1-109 and as
              such, the Circuit Court’s Order appointing attorney Charles
              Sexton as the administrator ad litem for the Estate of Otto
              Muenzel, Jr. is void and could have been challenged by the
              Defendants at any time. Therefore, the Plaintiffs failed to file
              an action against a proper party defendant pursuant to
              Tennessee Code Annotated § 20-5-103 within the applicable
              statute of limitations.

              This matter does not fit into the category of those cases where
              a direct action against unnamed defendant Progressive Hawaii
              Insurance Corporation, the plaintiffs’ uninsured motorist
              carrier, would be appropriate pursuant to Tennessee Code
              Annotated §56-7-1206(d). The legislature prescribed a
              course of action as found in Tennessee Code Annotated § 20-
              5-103 for the Plaintiffs to follow when Otto Muenzel, Jr. died.
              As this procedure was not followed, the Plaintiffs’ failed to
              obtain good service of process against a proper party
              defendant preventing them from bringing a direct action.

       Appellants filed this timely appeal.

                                        II. ISSUES

       We restate the issues raised on appeal by Appellants as follows:

                                              -8-
             A. Whether the circuit court erred in finding that it lacked
             subject matter jurisdiction to appoint an administrator ad
             litem for Deceased where no binding precedent prevented the
             court from appointing one, and the circuit court as a court of
             general jurisdiction either retained jurisdiction to appoint the
             administrator ad litem or had concurrent jurisdiction with the
             chancery court to make the appointment.

             B. Whether the circuit court should have transferred the
             appointment of the administrator ad litem to chancery court
             pursuant to Tennessee Code Annotated section 16-1-116.

      Progressive added the following issues:

             C. Whether the circuit court correctly found, twice, that it
             lacked subject matter jurisdiction to appoint an administrator
             ad litem for Deceased based upon Tennessee Code Annotated
             section 30-1-109’s grant of subject matter jurisdiction for the
             appointment of administrator ad litems to probate courts,
             chancery courts, and any other court having chancery
             jurisdiction.

             D. Whether the circuit court could have properly applied
             Tennessee Code Annotated section 16-1-116 in this matter to
             transfer some portion of Appellants’ action to another court
             and if so, whether the circuit court erred in failing to consider
             section 16-1-116 on its own initiative when Appellants failed
             to request the transfer.

             E. Whether Appellants waived their right to present their
             issues for the first time on appeal when neither argument was
             made in the trial court proceeding.

Deceased raised further issues:

             F. Whether Tennessee Code Annotated section 30-1-109 is
             the controlling statute for the appointment of an administrator
             ad litem in place of a tortfeasor who dies before the
             commencement of a lawsuit.




                                           -9-
              G. Whether the circuit court has concurrent jurisdiction with
              chancery and probate courts to appoint an administrator ad
              litem.

              H. Whether the circuit court had the authority to transfer the
              appointment of the administrator ad litem to chancery or
              probate court pursuant to section 16-1-116.



                             III. STANDARD OF REVIEW

       The Tennessee Supreme Court has held the following:

              Subject matter jurisdiction involves the court’s lawful
              authority to adjudicate a controversy brought before it.
              Subject matter jurisdiction is conferred by statute or the
              Tennessee Constitution; the parties cannot confer it by
              appearance, plea, consent, silence, or waiver. Any order
              entered by a court lacking jurisdiction over the subject matter
              is void. Therefore, subject matter jurisdiction is a threshold
              inquiry, which may be raised at any time in any court.

Johnson v. Hopkins, 432 S.W.3d 840, 843-44 (Tenn. 2013) (citations omitted) (emphasis
added). To determine whether a trial court possessed subject matter jurisdiction to enter
an order, this court “must ascertain whether the Tennessee Constitution, the Tennessee
General Assembly, or the common law have conferred upon the court the power to
adjudicate the case before it.” Andrews v. Clemmer, No. W2012-00986-COA-R3-CV,
2013 WL 776073, at *2 (Tenn. Ct. App. Feb. 28, 2013). “Since a determination of
whether subject matter jurisdiction exists is a question of law, [the] standard of review is
de novo, without a presumption of correctness.” Id. (citing Northland Ins. Co. v. State,
33 S.W.3d 727, 729 (Tenn. 2000)).

        The party arguing that subject matter jurisdiction does exist has the burden of
proof. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012); Redwing v.
Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012). When
subject matter jurisdiction is facially challenged, like this case before us, “it’s a challenge
to the complaint itself.” Ritchie v. Tennessee Bd. of Probation and Parole, No. M2015–
00187–COA–R3–CV, 2015 WL 6671336, at *2 (Tenn. Ct. App. 2015); see Schutte v.
Johnson, 337 S.W.3d 767, 769 (Tenn. Ct. App. 2010). The factual allegations in the
plaintiff’s complaint are presumed to be true. Ritchie, 2015 WL 66713336, at *2.



                                            - 10 -
       Motions to dismiss are governed by Rule 12.02 of the Tennessee Rules of Civil
Procedure and may include motions based on failure to state a claim upon which relief
may be granted. According to Rule 12.02: “If, on a motion asserting the defense [of]
failure to state a claim upon which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for
summary judgment[.]” Tenn. R. Civ. P. 12.02. However, “even though the trial court
consider[s] matters outside the pleading, the motion [is] still properly treated as a motion
to dismiss since it involves [the] issue[] of service of process.” Milton v. Etezadi, No.
E2012-00777-COA-R3-CV, 2013 WL 1870052, at *3 (Tenn. Ct. App. May 3, 2013).
When ruling on a motion to dismiss regarding service of process, a trial court may
properly consider matters outside the pleadings without converting the motion to one for
summary judgment. Id., 2013 WL 1970052, at *3-4.

        The same is not true of motions to dismiss predicated on the expiration of the
statute of limitations as they may be properly raised as a motion to dismiss for failure to
state a claim upon which relief may be granted. See Young ex. rel. Young v. Kennedy,
249 S.W.3d 536, 549 (Tenn. Ct. App. 2013) (citing Tenn. R. Civ. P. 12.02(6)) (holding
that a motion to dismiss based upon the expiration of the statute of limitations is properly
brought as a motion to dismiss for failure to state a claim upon which relief may be
granted). Such motions to dismiss raising this defense may be converted to motions for
summary judgment where the trial court considers matters outside the pleadings.

       When we are required to interpret statutes, our role “is to ascertain and give effect
to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 514
(Tenn. 2005). The intent of the legislature is determined “from the natural and ordinary
meaning of the statutory language within the context of the whole statute without any
forced or subtle construction that would extend or limit the statute’s meaning.” State v.
Flemming, 19 S.W.3d 195, 197 (Tenn. 2000).


                                            IV. DISCUSSION

       Appellees contend that Appellants did not properly obtain the appointment of an
administrator ad litem pursuant to Tennessee Code Annotated section 30-1-109, amend
their complaint to bring the action against the administrator ad litem specifically, and
serve the administrator ad litem with process within the applicable statute of limitations.
Specifically, Appellees argue that the circuit court lacked subject matter jurisdiction to
appoint the administrator ad litem and that the order of appointment was void. They
contend that Appellants had until November 9, 2016 to have an administrator ad litem
properly appointed over Muenzel’s estate and substituted as the proper defendant.13

13
     Tenn. Code Ann. § 28-1-110 tolled the statute of limitations for six months.
                                                     - 11 -
Because an administrator ad litem was not properly appointed prior to the expiration of
the statute of limitations, Appellees assert that the action filed against Deceased did not
commence an action against the proper party for purposes of the statute of limitations.
They contend that under Tennessee law, a plaintiff must properly commence an action
against an underlying tortfeasor to seek liability against the uninsured/underinsured
motorist carrier:

              Without properly commencing the case against the tortfeasor,
              within the applicable statute of limitations, no liability against
              the uninsured motorist carrier could be imposed. Thus, in
              order to impose liability on an uninsured motorist carrier . . .
              the plaintiff must not only serve the uninsured motorist
              carrier, but must also properly serve the alleged tortfeasor
              within the applicable statute of limitations.

Liput, 405 S.W.3d at 671 (citing Webb v. Werner, 163 S.W.3d 716 (Tenn. Ct. App.
2004)).

        In this case, which originated in the circuit court as a civil lawsuit for liquidated
damages, the issue of the administrator ad litem arose simply as one discrete piece
necessary for the case to proceed. In our view, the trial court erred in signing the
paperwork to name Sexton as the administrator ad litem, as the circuit court judge lacked
the jurisdiction to appoint him. Tennessee Code Annotated section 16-16-201(a)
provides that “the chancery court . . . shall have exclusive jurisdiction over . . . the
administration of estates of every nature, including the estates of decedents . . . and all
matters relating thereto . . . .” It is only by the appointment of an administrator ad litem
that the action could go forward. As Appellants allowed the cause of action against the
tortfeasor to lapse by not properly serving the administrator ad litem, they are precluded
from obtaining a recovery from the insurer as well. “A plaintiff who fails to establish
legal liability against a defendant tortfeasor cannot impose liability upon her uninsured
motorist carrier for the acts of that same tortfeasor.” Winters, 932 S.W.2d at 465-66.
Further, “if the statute of limitations ha[s] run against the uninsured motorist, a direct
action [cannot be] maintained against the uninsured motorist carrier.” Bates v. Greene,
No. W2016-01868-COA-R3-CV, 2017 WL 3206599, at *6 (citing Buck v. Scalf, No.
M2002-00620-COA-R3-CV, 2003 WL 21170328, at *4 (Tenn. Ct. App. May 20, 2003)).
The Winters court noted that the requirement of service upon the tortfeasor is imposed on
a plaintiff “as a practical means of maintaining the insurer’s right to recover from the
responsible party, once it has paid the policyholder. . . .” Id. A plaintiff therefore “must
first commence a proper claim against [the tortfeasor] before invoking potential liability
against the uninsured motorist insurance carrier.” Davis v. Grange Mut. Cas. Grp., No.
M2016-02239-COA-R3-CV, 2017 WL 4331041, at *3 (Tenn. Ct. App. Sep. 28, 2017).



                                            - 12 -
        Despite our courts providing that where “no personal representative exists . . . the
injured person may petition the chancery court to appoint an Administrator Ad Litem for
the limited purpose of serving as the defendant in the lawsuit,” Ferrell v. Ivey, No.
M2013-00856-COA-R3-CV, 2013 WL 6228153 (Tenn. Ct. App. Nov. 27, 2013)(citing
Vaughn v. Morton, 371 S.W.3d 116, 120 (Tenn. Ct. App. 2012)), no personal
representative of Muenzel was properly appointed prior to the expiration of the one-year
statute of limitations for personal injury actions. Therefore, the present action appears to
be time barred.


                                         16-10-111

       Appellants seek to rely on Tennessee Code Annotated section 16-10-111:

              Any suit of equitable nature, brought in the circuit court,
              where objection has not been taken to the jurisdiction, may be
              transferred to the chancery court of the county, or heard and
              determined by the circuit court upon the principles of a court
              of equity, with the power to order and take all proper
              accounts and otherwise to perform the functions of a chancery
              court.

Tenn. Code Ann. 16-10-111. This statute typically applies when an equitable lawsuit is
brought in the circuit court by mistake. See Berman v. McHugh, No. 01-A-01-9002-CV-
00090, 1990 WL 212157 (Tenn. Ct. App. Dec. 28, 1990) (citing Hamilton Nat. Bank v.
Champion, 303 S.W.2d 731 (Tenn. 1957)). Here, however, Appellants brought a suit in
circuit court sounding in law seeking a monetary judgment, over which the circuit court
has exclusive jurisdiction. Tenn. Code Ann. § 16-11-102. Accordingly, the circuit court
could not transfer the entire matter to chancery court. Further, the appointment of the
administrator ad litem does not constitute a “suit” in equity.

                                          16-1-116

       Tennessee Code Annotated section 16-1-116 provides as follows:

              Notwithstanding any other provision of law or rule of court to
              the contrary, when an original civil action . . . is filed in a
              state or county court of record or a general sessions court and
              such court determines that it lacks jurisdiction, the court shall,
              if it is in the interest of justice, transfer such action or appeal
              to any other such court in which the action or appeal could
              have been brought at the time it was originally filed. Upon
              such a transfer, the action or appeal shall proceed as if it had

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              been originally filed in the court to which it is transferred on
              the date upon which it was actually filed in the court from
              which it was transferred.

Tenn. Code Ann. § 16-1-116. This statute “provides that a trial court may transfer a case
that was incorrectly filed ‘to any other such court in which the action or appeal could
have been brought,’ when the trial court determines that the interests of justice would be
served by such a transfer.” Turner v. State, 184 S.W.3d 701, 706 (Tenn. Ct. App. 2005).
Here, the case could not be transferred to chancery court because the circuit court did not
“lack[] jurisdiction” over the “original civil action[].” The circuit court clearly had
jurisdiction to award the damages requested. See Benson v. Herbst, 240 S.W.3d 235, 241
n. 4 (Tenn. Ct. App. 2007).

       Additionally, the circuit court could not have transferred the whole action to the
chancery court, as the circuit courts possess exclusive jurisdiction over suits seeking
unliquidated damages for injuries to persons over $25,000. Tenn. Code Ann. § 16-11-
102. Thus, transfer of the case in its entirety would have resulted in further jurisdictional
issues. If Appellants are arguing that the circuit court should have transferred the motion
seeking the appointment of the administrator ad litem, a motion does not constitute an
“original civil action” and cannot be transferred on its own to another court.

       To rely on the transfer provisions of the statute, Appellants further had to establish
that they had an action to transfer, as state law does not allow a plaintiff to maintain an
action against a deceased tortfeasor. Brooks, 254 S.W.2d at 737 (Tenn. 1953). A court’s
order allowing the substitution of the decedent’s personal representative, not the
previously filed complaint against the decedent, “mark[s] the commencement of the
action.” See Carpenter v. Johnson, 514 S.W.2d 868, 870 (Tenn. 1974). In this case,
because the circuit court did not have the authority to appoint an administrator ad litem,
the order of the circuit court appointing Sexton was void. As the Supreme Court
explained in Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998),

              A void judgment [or order] is one in which the judgment [or
              order] is facially invalid because the court did not have the
              authority to render such a judgment [or order]. A voidable
              judgment [or order] is one which is facially valid and requires
              proof beyond the face of the record or judgment to
              demonstrate its voidableness.

Id. at 529 (internal citations omitted). In the case at bar, the order designating Sexton as
administrator ad litem was facially invalid because the circuit court did not have subject
matter jurisdiction to enter such an order. As the original complaint against Deceased
could not be transferred because Deceased was not a proper party defendant, this matter
was not subject to transfer. See In re Estate of Brown, 402 S.W.3d at 198; In re Estate of

                                            - 14 -
Salmons, No. E2017-00389-COA-R3-CV, 2018WL1324954, at *9 (Tenn. Ct. App. Mar.
14, 2018). The amended complaint did not abate the action and toll the statute of
limitations. Id.

        In Elliott v. Akey, No. E2004-01478-COA-R3-CV, 2005 WL 975510, at *3 (Tenn.
Ct. App. Apr. 27, 2005), we found that “[n]o request for transfer was made by the
Plaintiff pursuant to Tenn. Code Ann. § 16-1-116. Such a transfer, if it had been
requested, would have been in the discretion of the trial court. We do not find that the
trial court abused its discretion or committed any error by not transferring the case on its
own motion.” As noted in Turner, 184 S.W.3d at 705, “[t]ransfer pursuant to this section
is not, however, automatic; rather, the trial court determines, in its discretion, whether the
transfer is warranted.” In our view, the circuit court did not err in failing to consider on
its own initiative whether to transfer some portion of Appellants’ action due to the lack of
subject matter jurisdiction, when Appellants never requested it.


                                    V. CONCLUSION

      The judgment of the trial court is affirmed, and the case is remanded for further
proceedings pursuant to applicable law. Costs of appeal are taxed to Appellants, Bill E.
Owens and Sandra S. Madden.




                                                           JOHN W. McCLARTY, JUDGE




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