                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT MEMPHIS
                                 FEBRUARY 19, 2009 Session

   SAM McCORMICK v. ILLINOIS CENTRAL RAILROAD COMPANY

                Interlocutory Appeal from the Circuit Court for Shelby County
                        No. CT-002977-06    John R. McCarroll, Judge



                      No. W2008-00902-COA-R9-CV - Filed May 19, 2009


In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the
executor of the plaintiff’s estate to be substituted as the party plaintiff where the party plaintiff died
before suit was filed in his individual capacity. We are also asked to determine whether the
defendant waived the issue of plaintiff’s capacity by first raising the issue in a post-answer motion
to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and
thus, is not amenable to substitution. We further find that an objection based on the fact that the
plaintiff was deceased when the complaint was filed can be made at any time during the proceedings,
in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever
made known to the court.


 Tenn. R. App. P. 9; Interlocutory Appeal; Judgment of the Circuit Court Reversed; Case
                                       Dismissed

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which HOLLY M. KIRBY , J., and
J. STEVEN STAFFORD , J., joined.

Thomas R. Peters, Michael C. Hermann, Bellevue, IL; M. Beth Rainwater, Memphis, TN, for
Appellant

R. Christopher Gilreath, Memphis, TN, for Appellee
                                                   OPINION

                                   I. FACTS & PROCEDURAL HISTORY

        Sam McCormick was diagnosed with lung disease on June 14, 2003. At some time
subsequent to his diagnosis, but prior to September 1, 2005, Mr. McCormick joined a multi-plaintiff
lawsuit against his former employer Illinois Central Railroad Company (“Railroad”) in Mississippi,
pursuant to the Federal Employers’ Liability Act (“FELA”), for asbestos exposure. Mr. McCormick
died on September 1, 2005. He, along with many of the other plaintiffs, was voluntarily dismissed
as a plaintiff in the Mississippi suit in November of 2005.

        On June 8, 2006, “Mr. McCormick”1 filed a Complaint against Railroad in the Shelby
County, Tennessee, Circuit Court, again alleging a cause of action pursuant to the FELA for asbestos
exposure. The Complaint listed Mr. McCormick, in his individual capacity, as the only party
plaintiff.2 Railroad filed an Answer and served discovery requests upon Mr. McCormick on or about
August 1, 2006. On February 20, 2007, Railroad filed a Motion to Dismiss for Failure to Respond
to Discovery, claiming that “[t]o date, Plaintiff has failed to respond to [Railroad’s] discovery
requests despite [Railroad’s] generous extension of time and courteous reminder to do so.”

        On March 21, 2007, “Mr. McCormick” filed a Suggestion of Death, suggesting upon the
record that “Sam McCormick died on September 1, 2005.” “Mr. McCormick” simultaneously filed
a motion to substitute Ann P. McCormick, Mr. McCormick’s wife, as the party plaintiff, stating that
she was “duly qualified to serve” having been “named as the executor of [Mr. McCormick’s
estate.]”3 Railroad claims that it was unaware of Mr. McCormick’s death until March 21, 2007.

        Railroad filed a Motion to Dismiss on April 9, 2007, claiming that Mr. McCormick lacked
the capacity to sue Railroad because only a living employee or the executor or administrator of a
deceased employee’s estate may maintain an action under the FELA. On May 11, 2007, following
a hearing, the trial court denied Railroad’s motion to dismiss and allowed Ann McCormick to be
substituted as the plaintiff. Before the order granting substitution was entered, Railroad filed a
“Motion to Reconsider,” citing Tennessee Rule of Civil Procedure 60, arguing that Ann McCormick
had failed to prove that she was the executor of Mr. McCormick’s estate, and citing cases dismissing
actions filed by deceased plaintiffs. “Mr. McCormick” responded by contending Railroad “waived
its claim to lack of capacity because it never raised it in the answer.”



        1
            It is unclear who filed the Complaint in Mr. McCormick’s name.
        2
         We note that although “Sam M cCormick” is listed as the Complaint’s only plaintiff, paragraph five of the
Complaint states that “Terry Jeanes” was employed by Railroad. Finding no other mention of “Terry Jeanes,” we
presume his mention was a typographical error.
        3
           Ann McCormick could not simply bring a new claim as executor of Mr. McCormick’s estate, as the three-
year statute of limitations under the FELA had passed. See 45 U.S.C.A. §§ 56, 59.

                                                        -2-
       Following a June 29, 2007 hearing on Railroad’s Motion to Reconsider, the trial court
allowed “Mr. McCormick” ten days in which to substitute the proper party plaintiff. Because “Mr.
McCormick” failed to substitute a proper party plaintiff within ten days, the trial court entered an
Order of Dismissal on July 24, 2007, dismissing “Mr. McCormick’s” claim with prejudice.

         Rather than appealing the final order of dismissal, “Mr. McCormick,” on August 31, 2007,
filed a “Motion to Reconsider” citing Tennessee Rule of Civil Procedure 60.02, claiming that timely
compliance with the court’s substitution order was impossible. Railroad opposed the motion,
arguing again that substitution was improper, as a suit filed by a deceased plaintiff is a nullity, and
furthermore, that “Mr. McCormick” had not presented facts warranting Rule 60.02's exceptional
relief. Following a hearing on January 18, 2008, the trial court entered an Order on February 19,
2008, granting “Mr. McCormick’s” motions to reconsider pursuant to Tennessee Rule of Civil
Procedure 60.02(5) and for substitution of Ann McCormick, and vacating its prior Order of
Dismissal entered July 24, 2007.

         On March 13, 2008, Railroad filed a Request for Appeal by Permission, requesting to appeal
the trial court’s order allowing substitution by Ann McCormick, as well as the trial court’s granting
of “Mr. McCormick’s” Rule 60.02 “Motion to Reconsider.” The trial court granted Railroad’s
request for interlocutory appeal on April 22, 2008. On August 29, 2008, this Court granted
Railroad’s Rule 9 Application for Interlocutory Appeal.

                                              II. ISSUES PRESENTED

Appellant’s Request for Appeal by Permission raises the following issues:

1.       Whether the trial court erred in allowing substitution by Ann McCormick; and
2.       Whether the trial court erred in granting Plaintiff’s Rule 60.02 Motion to Reconsider.

Additionally, Appellee presents the following issue for review:4

1.       Whether Appellant waived its defense of capacity by failing to specifically allege the defense
         in its Answer.




         4
            We note that in interlocutory appeals, the only issues which may “be raised are those certified in the trial
court’s order granting perm ission to seek an interlocutory appeal and in the appellate court’s order granting the
interlocutory appeal.” Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 914 (Tenn. Ct. App. 2000) (citations
omitted). In the instant case, neither the trial court’s order granting permission to seek an appeal, nor this Court’s order
granting such an appeal, specifically delineated the issues that would be addressed on appeal. In his brief to this Court,
“M r. McCormick” argued that Railroad had waived its defense of capacity by failing to raise such in its Answer.
Railroad did not object to this issue being raised, and it filed a Reply Brief addressing such issue. Therefore, we have
determined that it is appropriate for this Court to address the issue of whether Railroad waived the defense of capacity.
See Heatherly, 43 S.W.3d at 914.


                                                            -3-
For the following reasons, we reverse the circuit court’s order allowing substitution by Ann
McCormick and dismiss the case.

                                   III.   STANDARD OF REVIEW

        We review a trial court’s conclusions of law under a de novo standard upon the record with
no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App.
1989)). “This same standard of review is applicable to issues which are raised in a discretionary
appeal pursuant to either Rule 9 or Rule 10 of the Tennessee Rules of Appellate Procedure.” State
v. Strode, 232 S.W.3d 1, 8 (Tenn. 2007). “‘Issues raised by an interlocutory or extraordinary appeal,
after permission to appeal has been granted, are decided in the same manner as if the issues had been
raised in an appeal as of right.’” Id. (quoting State v. Moore, 775 S.W.2d 372, 374 (Tenn. Crim.
App. 1989)).

        We review trial court decisions concerning Tennessee Rule of Civil Procedure 60.02 under
an abuse of discretion standard. Ferguson v. Brown, No. M2007-02590-COA-R3-CV, 2008 WL
4657827, at *4 (Tenn. Ct. App. Oct. 21, 2008) (citing Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.
2003); Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); McCracken v. Brentwood
United Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997)). Under this standard, we
do not substitute our judgment for that of the trial court. Id. (citing Henry, 104 S.W.3d at 479;
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). We find that the trial court has abused its
discretion only when it has “‘applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.’” Id. (quoting State v.
Stevens, 78 S.W.3d 817, 832 (Tenn. 2002)).

                                          IV. DISCUSSION
                                          A.   Substitution
         In this interlocutory appeal, Railroad argues that the trial court abused its discretion by
allowing Ann McCormick to be substituted as the party plaintiff. Railroad contends that “a deceased
individual does not have the requisite capacity to sue[,]” and thus “Mr. McCormick’s” action is “a
nullity subject to dismissal.” Railroad asserts that only a living employee or a deceased employee’s
personal representative can maintain an action under the FELA.


        Railroad states that it “is unaware of any reported Tennessee cases directly on point[,]” but
it maintains that “numerous courts addressing the same issue presented by this appeal have
consistently held than an action filed by a deceased individual is a nullity subject to dismissal.”
(Appellant’s Br10,13). First, Railroad cites Illinois Central Railroad Co. v. Broussard, ---So.2d----,
2008 WL 4405166 (Miss. Ct. App. Sept. 30, 2008) (en banc) (plurality opinion), with facts nearly
identical to the instant case. In Broussard, Mr. Broussard first filed suit against Illinois Central in
20003, in Hinds County, Mississippi, as a plaintiff in the same multi-plaintiff case as Mr.
McCormick. Id. at *1. Mr. Broussard died on August 3, 2004, and in 2005, ninety-five of the named

                                                 -4-
plaintiffs, including Mr. Broussard, were dismissed without prejudice. Id. Subsequently, in 2006,
a complaint was filed on behalf by “Mr. Broussard” in Warren County, Mississippi, for personal
injuries sustained as a result of asbestos exposure while he was employed by Illinois Central. Id. at
*1. Illinois Central initially filed an answer to “Mr. Broussard’s” complaint, but after learning that
Mr. Broussard was deceased at the time the Warren County complaint was filed, Illinois Central filed
a motion to dismiss and a motion for attorney fees and expenses. Id. The trial court granted Illinois
Central’s motion to dismiss, but denied its request for attorney fees. The Mississippi Court of
Appeals affirmed the dismissal stating:


       We agree that Illinois Central had a complete defense from the moment this lawsuit
       was filed. The longstanding rule in Mississippi is that the commencement of a suit
       in the name of a deceased individual amounts to a nullity. Humphreys v. Irvine, 14
       Miss. 205, 207 (1846). An objection based on the fact that the plaintiff was deceased
       when the complaint was filed can be made at any time during the proceedings, and
       such objection “stops the cause at whatever stage it may be, whenever made known
       to the court.” Id. This rule created a complete defense for Illinois Central and was
       the basis of the circuit court’s dismissal of the case.


Id. at *3. Furthermore, the court found that because Illinois Central had a complete defense to “Mr.
Broussard’s” claim, the claim was frivolous, and warranted an award of attorney fees. Id. at 3.


        Railroad also cites Campbell v. Travelers Insurance, Civil Action No. 06-9068, 2008 WL
145048 (E.D. La. Jan. 14, 2008). In Campbell, the plaintiff homeowners sued their insurance
company for failing to timely pay their claim for extensive damage to their home caused by
Hurricane Katrina. Id. at *1. However, the insurance company subsequently learned that both
plaintiffs were deceased when the complaint was filed. Id. The United States District Court for the
Eastern District of Louisiana found that “[t]he deceased plaintiffs [were] not proper party
plaintiffs[,]” as “Louisiana law does not allow suits by or against the deceased.” Id. (citing
Adelsberger v. United States, 58 Fed. Cl. 616, 618 (Fed. Cl. 2003); Magee v. Stacey, 223 So.2d 194,
195 (La. Ct. App. 1969)). The court further found that substitution by a representative of the
plaintiffs’ heirs was improper, as Federal Rule of Civil Procedure 25 allows substitution of a
deceased party only when the deceased was properly made a party before his or her death, and that
such rule “is inapplicable when the deceased party predeceased the initiation of the litigation.” Id.


        Adelsperger v. United States, 58 Fed. Cl. 616 (Fed. Cl. 2003), is also cited by Railroad as
support for its contention that a deceased person may not sue in his or her individual capacity. In
Adelsperger, over 100 employees of the Bureau of Prisons brought suit seeking overtime pay. Id.
at 617. The defendant filed a motion to dismiss one of the plaintiffs, claiming that he died prior to
the commencement of the lawsuit. Id. The court dismissed the plaintiff, stating that “a party must
have a legal existence as a prerequisite to having the capacity to sue or be sued.” Because the


                                                 -5-
plaintiff died prior to commencement of the suit, the court likewise denied the request to substitute
the plaintiff’s estate as the plaintiff. Id. at 618-19 (citations omitted).5


        Additionally, Railroad cites Banakus v. United Aircraft Corp., 290 F. Supp. 259, 260
(S.D.N.Y. 1968), and Levering v. Riverside Methodist Hospital, 441 N.E.2d 290, 290 (Ohio Ct. App.
1981), wherein again the courts found that suits brought by deceased persons were “nullities.” In
Banakus, the plaintiff coincidentally died in an airplane crash less than one hour before his attorney
filed his complaint in a personal injury suit. The court stated that because the plaintiff “was dead
when the action for personal injuries was commenced, that action must be treated as a nullity and
it cannot be given life by substituting parties and amending the complaint.” 290 F. Supp. at 260.
In Leverin, the Ohio Court of Appeals stated that Ohio Rule of Civil Procedure 25, which allows
“‘[s]ubstitution of parties[]’” “‘if a party dies[,]’” Id. at 292 (quoting Ohio R. Civ. P. 25), did not
apply where “there was no party plaintiff from the inception[.]” Id.


         Finally, Railroad briefly cites various cases from other jurisdictions wherein the courts have
dismissed cases filed by deceased plaintiffs and refused to allow substitution. See, e.g., Chorney
v. Callahan, 135 F. Supp. 35, 36 (D. Mass. 1955) (deeming substitution ineffective where complaint
was filed after defendant died, reasoning that there was no action in which new defendant could be
substituted); Pasos v. E. S.S. Co., 9 F.R.D. 279, 280-82 (D. Del. 1949) (dismissing action where suit
was filed after the plaintiff’s death and the defendant filed his answer without knowledge of such
death); Banks v. Employers’ Liab. Assurance Corp., 4 F.R.D. 179, 180 (W.D. Mo. 1944) (finding
that substitution of the deceased plaintiff by the deceased plaintiff’s estate was improper as
substitution did not occur until after the filing of the “void suit”); Matthews v. Cleveland, 284 S.E.2d
634, 636 (Ga. Ct. App. 1981) (finding that affidavit of garnishment filed by deceased plaintiff was
not an action, but a nullity, and because no action was commenced, substitution was improper); Reed
v. Long, 259 N.E.2d 411, 412 (Ill. App. Ct. 1970) (holding that “[a] dead person cannot be a party
to a suit as such is a non-existent entity and the proceedings were void Ab initio”); Brickley v.
Neuling, 41 N.W.2d 284, 285 (Wisc. 1950) (finding that the court did not have jurisdiction over a
suit filed against a deceased defendant, stating that “[i]t is elementary that one deceased cannot be
a party to an action. More accurately, it is fantastic to suggest that he can be”).


       On appeal, “Mr. McCormick” argues that substitution was proper, pursuant to Tennessee
Rule of Civil Procedure 25.01(1) which provides, in part, that “If a party dies and the claim is not
thereby extinguished, the court may order substitution of the proper parties.” “Mr. McCormick”
concedes that his motion for substitution was not made within ninety days of the suggestion of Mr.
McCormick’s death upon the record, as required by Rule 25.01(1); however, he cites an opinion
from the middle section of this Court allowing substitution beyond the ninety day window when



         5
          The court also denied a request to substitute the plaintiff’s wife as the plaintiff, noting that her status as widow
was insufficient and she had not qualified as the plaintiff’s personal representative. Id. at 619.


                                                             -6-
delay was a result of excusable neglect. See Wagner v. Frazier, 712 S.W.2d 109, 113 (Tenn. Ct.
App. 1986).


       “Mr. McCormick” also cites Tennessee Code Annotated section 20-5-102 which provides:


       No civil action commenced, whether founded on wrongs or contract, except actions
       for wrongs affecting the character of the plaintiff, shall abate by the death of either
       party, but may be revived; nor shall any right of action arising hereafter based on the
       wrongful act or omission of another, except actions for wrongs affecting the
       character, be abated by the death of the party wronged; but the right of action shall
       pass in like manner as the right of action described in § 2-5-106.


“Mr. McCormick” argues that “[b]ecause Tennessee law provides that the cause of action of a
deceased person does not abate, Appellee’s case is not a nullity.”


        “Mr. McCormick” further cites Tennessee Code Annotated section 28-1-105, the “savings
statute,” which provides in part:


       (a) If the action is commenced within the time limited by a rule or statute of
       limitation, but the judgment or decree is rendered against the plaintiff upon any
       ground not concluding the plaintiff's right of action, or where the judgment or decree
       is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the
       plaintiff, or the plaintiff's representatives and privies, as the case may be, may, from
       time to time, commence a new action within one (1) year after the reversal or arrest.


Based on the savings statute, “Mr. McCormick” argues that “any defect as to the name of the
Plaintiff is [a] formality, rather than substance.”


        “Mr. McCormick” also relies on Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87
S.W.411 (1905) to support his contention that substitution was proper. In Stuber, the plaintiff was
injured on September 19, 1898, and brought suit against the defendant on May 10, 1899. Id. at 411.
Thereafter a judgment was rendered in favor of the plaintiff, but was later reversed and remanded
for a new trial. Id. Subsequently, the plaintiff died on March 2, 1902, and his death was suggested
upon the record in April 1902. Id. Apparently due to the plaintiff’s death, the trial court dismissed
the plaintiff’s claim on November 5, 1902. The following February, the plaintiff’s widow brought
suit challenging the dismissal of the plaintiff’s claim. Id. at 412. Our Supreme Court held that the
plaintiff’s widow could bring properly preserve the plaintiff’s right of action:



                                                 -7-
       These statutes [concerning survival of actions] have been frequently construed by this
       court, and their purpose, meaning, and effect are well settled, and not open for
       discussion. They do not create a new cause of action in favor of the widow, children,
       or next of kin of a decedent whose death is caused by the wrongful act of another.
       They merely alter the rule of the common law under which rights of action of this
       character, and suits brought thereon, abated upon the death of the injured party, so
       as to keep alive and preserve the right of action of the deceased for the benefit of his
       widow, children, or next of kin, and to authorize suit thereon to be brought to recover
       the damages sustained, in the name of the personal representative of the deceased, or
       that of the widow or children, and, where suit has been commenced by the decedent
       while yet in life, to allow it to be prosecuted to judgment for the same purpose.


Id. at 413. (emphasis added).


        Curiously , “Mr. McCormick” also cites Norment v. Smith, 20 Tenn. 46 (1839). In Norment,
a suit was filed against the defendant, Samuel Smith, in a dispute over the ownership of a slave.
When Samuel Smith died in September of 1835, the suit had not yet been settled. In October of
1835, Samuel Smith’s death was suggested upon the record, and in April of 1836, the action was
declared to have abated. Upon Samuel Smith’s death, Thomas Smith came into possession of the
slave as the executor of Samuel Smith’s estate. Thereafter, the plaintiff sued Thomas Smith to
recover the slave. The Court held that Thomas Smith was personally guilty of an unlawful detainer
and thus could be sued by the plaintiff.


        On appeal, “Mr. McCormick” states that “[a]lmost as long as Tennessee has been a state, it
has maintained that actions brought by a person who later dies may be maintained by successors and
do not abate.” (emphasis added). We agree. However, this is not such a case. In the instant case,
suit was not filed against Railroad until after Mr. McCormick’s death. We are persuaded by the
numerous decisions from other jurisdictions cited by Railroad, that because Mr. McCormick was
deceased when the complaint was filed on his behalf, the suit was a nullity, and thus not amenable
to substitution. We note that the authorities offered by “Mr. McCormick” do not create a contrary
result. Instead, the statutes allowing substitution presuppose an action commenced by a decedent
prior to his or her death. Likewise, in Stuber, which “Mr. McCormick” cited in support of his
argument, the Court allowed the plaintiff’s widow to be substituted for the deceased plaintiff;
however, the plaintiff, himself, initiated the suit prior to his death. 87 S.W.at 413. The Court
explicitly stated that substitution was allowed “where suit [w]as . . . commenced by the decedent
while yet in life.” Id. Finally, we find Norment inapplicable to the instant case, as the Court allowed
a suit against a second defendant based on actions of the second defendant, himself, rather than
through a substitution theory. 20 Tenn. 46. We hold that under Tennessee law, the commencement
of a suit in the name of a deceased individual amounts to a nullity, and that such nullity may not be
avoided through substitution of parties.



                                                 -8-
                                                  B.    Waiver


        Tennessee Rule of Civil Procedure 12.02 states, in part:


        Every defense, in law or fact, to a claim for relief in any pleading, whether a claim,
        counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive
        pleading thereto if one is required, except that the following defenses may at the
        option of the pleaders be made by motion in writing: . . . (8) specific negative
        averments made pursuant to Rule 9.01. A motion making any of these defenses shall
        be made before pleading if a further pleading is permitted.6


Tenn. R. Civ. P. 12.02 (2008). Tennessee Rule of Civil Procedure 9.01, concerning capacity,
provides, in part:
        When a party desires to raise an issue as to the legal existence of any party or the
        capacity of any party to sue or be sued or the authority of a party to sue or to be sued
        in a representative capacity, he or she shall do so by specific negative averment,
        which shall include such supporting particulars as are peculiarly within the pleader’s
        knowledge.


Tenn. R. Civ. P. 9.01 (2008).
        “Mr. McCormick” argues that Railroad waived the defense of incapacity by raising the issue
of Mr. McCormick’s capacity in a post-answer Rule 12 motion, rather than in its answer, a pre-
answer motion, or an amended answer. We note that Illinois Central’s motion to dismiss clearly
moved the court “to enter an order dismissing Plaintiff’s action with prejudice for the reason that
Plaintiff does not have the capacity to sue.” (emphasis added). Therefore, we find that Illinois
Central satisfactorily made a “specific negative averment” of Mr. McCormick’s capacity to sue, and
we are left to determine whether the timing of Railroad’s motion constitutes a waiver.




        6
          “It is noteworthy that the advisory commission’s comments to Rule 12.02 was amended in 1993 to delete the
observation that the rule retained the principle that the defenses by motion must be made before pleading.” Spencer
v. Spencer, No. CA 03A01-9502-CH-00054, 1995 WL 422653, at *8, n.2 (Tenn. Ct. App. July 19, 1995) (dissenting),
as modified on reh’g, Aug. 30, 1995.




                                                       -9-
        As we stated above, Tennessee Rule of Civil Procedure 12.02 allows a party to raise
incapacity as a defense either in its answer or in a pre-answer motion. Furthermore, Rule 12.08
provides that “[a] party waives all defenses . . which the party does not present either by motion as
hereinabove provided, or, if the party has made no motion, in the party’s answer or reply, or any
amendments thereto[.]” Tenn. R. Civ. P. 12.08 (2008); see also Gilliam v. Gilliam, No. M2007-
02507-COA-R3-CV, 2008 WL 4922512, at *4 (Tenn. Ct. App. Nov. 13, 2008) (finding husband
waived the defense of personal jurisdiction by failing to raise it in his answer); George v. Alexander
Auto., LLC, No. M2006-02655-COA-R3-CV, 2007 WL 2726373 (Tenn. Ct. App. Sept. 19, 2007)
(perm. app. denied Jan. 28, 2008) (“Tennessee case law is replete with cases dismissed in the trial
court based on the statute of limitations raised in a Rule 12.02 motion to dismiss.”) (citation
omitted); Faulks v. Crowder, 99 S.W.3d 116, 126 (Tenn. Ct. App. 2002) (finding that the defendant
physician waived the defense of insufficient service of process and return of service, where the
defendant raised the issue for the first time in a motion to dismiss two years after service was issued,
and after the defendant filed his answer). Additionally, incapacity may be raised in an amended
answer. In Kemmons Wilson, Inc. v. Allied Bank of Texas, 836 S.W.2d 104, 106-08 (Tenn. Ct. App.
1992), this Court upheld a trial court’s order granting the defendant’s motion to amend its answer
on the first day of trial, to allege the defense of incapacity of the plaintiffs, more than three years
after the defendant filed its initial answer.


        We find that Railroad did not waive the defense of capacity by raising the issue in its post-
answer motion to dismiss, rather than in its answer, a pre-answer motion, or an amended answer.
Mr. McCormick died on September 1, 2005. However, on June 8, 2006, a complaint was brought
in his name, alone, and it stated that he “is a citizen and resident of Hernando, Mississippi.” The
Complaint, in no way, put Railroad on notice that Mr. McCormick was deceased. In fact, even “Mr.
McCormick’s” counsel claims that he did not learn of Mr. McCormick’s death until some time near
March 21, 2007. Thus, when Railroad filed its Answer on August 1, 2006, it could not have
challenged “Mr. McCormick’s” capacity to bring suit.


        On March 21, 2007, “Mr. McCormick” filed a suggestion of death upon the record. Such
suggestion was filed over a year and a half after Mr. McCormick’s death, and over nine months after
“Mr. McCormick’s” complaint was filed. We find it inequitable to require Railroad to raise, either
in its answer or a pre-answer motion, this defense which, based upon the plaintiff’s
misrepresentation–either intentional or negligent–could not have been known to Railroad at the time
its answer or pre-answer motion was required. Additionally, we find that such defense is not waived
merely because Railroad filed a motion to dismiss rather than an amended answer. Instead, we find
that an objection based on the fact that the plaintiff was deceased when the complaint was filed can
be raised at any time during the proceedings, in any appropriate manner, and such objection “‘stops
the cause at whatever stage it may be, whenever made known to the court.’” Illinois Cent. R.R.,
2008 WL 4405166, at *3 (quoting Humphreys, 14 Miss. at 207).




                                                 -10-
                                        V. CONCLUSION


       For the aforementioned reasons, we reverse the decision of the circuit court and dismiss the
case. All remaining issues not addressed are pretermitted. Pursuant to T.R.A.P. 40(a), costs of this
appeal are taxed to Appellant Railroad, and its surety, for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, P.J., W.S.




                                               -11-
