                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   October 9, 2013 Session1

      LAURENCE R. DRY v. CHRISTI LENAY FIELDS STEELE ET AL.

                   Appeal from the Circuit Court for Anderson County
                       No. B2LA0060       John D. McAfee, Judge


               No. E2013-00291-COA-R3-CV-FILED-JANUARY 28, 2014


The plaintiff, a licensed attorney, filed this pro se third party action two weeks before his
death on May 17, 2012. The defendants filed a suggestion of death under Tenn. R. Civ. P.
25.01. When no motion for substitution was filed during the prescribed time period, the
defendants filed a motion to dismiss. At the hearing on the motion, the decedent’s surviving
spouse, who had practiced law with him, appeared by telephone and informed the trial court
that she was not a party and was not representing the decedent or his estate with respect to
the plaintiff’s third party complaint. Despite these representations, she asserted that the court
should hear her argument as to why her late husband’s action should not be dismissed. The
trial court dismissed the action for failure to timely seek substitution of party, and also
granted defendants’ motion for judgment on the pleadings. The surviving spouse filed a
notice of appeal. We hold that the defendants provided proper notice under Rule 25.01 by
mailing a copy of the suggestion of death to the law firm address of decedent and his
surviving spouse. We further hold that decedent’s surviving spouse did not have standing
to file this appeal because (1) she was not a party, (2) did not represent her decedent husband,
and (3) did not represent his estate, which had not been opened when the trial court entered
its final judgment. We affirm the judgment of the trial court and dismiss this appeal.

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

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.

Wanda McClure Dry, Danville, Kentucky, for the appellant, Laurence R. Dry.



       1
         This case was argued at the Lincoln Memorial University Duncan School of Law as a part of the
Court’s CASE Project. CASE is an acronym for “Court of Appeals Affecting Student Education.”
Wynne du M. Caffey, Knoxville, Tennessee, for the appellees, Christi Lenay Fields Steele,
Randall E. Pearson, M.D., and Laurence Thomas O’Connor, Jr., M.D.

Edward G. White, II, and Joshua J. Bond, Knoxville, Tennessee, for the appellees, Jeffrey
A. Woods and State Volunteer Mutual Insurance Company.

Darryl G. Lowe, Knoxville, Tennessee, for the appellees, Joshua R. Walker and Jeffery Scott
Griswold.

                                               OPINION

                                                     I.

        This case has a complicated history involving several inter-related lawsuits. On
September 25, 2008, Paul Koczera and his wife, Jolene Koczera, filed a medical malpractice
action against Dr. Laurence Thomas O’Connor, Jr., and his employer, Tennessee Urology
Associates (“TUA”).2 The Koczeras were represented by Dr. Lawrence Dry3 and Wanda
McClure Dry, husband and wife, who practiced law together. Dr. O’Connor filed a motion
to dismiss for insufficient service of process, which the trial court granted on June 11, 2010.
On September 9, 2010, the Koczeras, again represented by the Drys, filed an action for
interference with service of process against TUA, Dr. Randall E. Pearson, an employee or
agent of TUA, and Christi Lenay Fields Steele, TUA’s office manager. On June 29, 2011,
the trial court granted summary judgment to all defendants in this interference with service
action.

        On February 22, 2012, TUA, Pearson, and Steele filed a malicious prosecution action
against the Koczeras and the Drys. The Drys filed an answer on May 3, 2012, in which they
listed their law firm’s address at 140 East Division Road in Oak Ridge. That same day, Dr.
Dry, acting pro se and solely upon his own behalf, filed a third-party complaint against
O’Connor, Pearson, Steele, Joshua R. Walker and Jeffery Scott Griswold – the last two
named parties being attorneys for O’Connor, State Volunteer Mutual Insurance Company
(“SVMIC”), O’Connor’s malpractice insurance carrier, and Jeffrey A. Woods, SVMIC’s
claims attorney. Dr. Dry’s third-party complaint included claims for abuse of process,
interference with Dr. Dry’s business, malicious prosecution, and conspiracy. The third-party



       2
        Tennessee Urology Associates was apparently misidentified in the complaint as “Oak Ridge
Urology Associates,” but the misnomer is of no consequence on this appeal.
       3
           Dr. Lawrence was both a licensed medical doctor and a licensed attorney.

                                                    -2-
complaint also listed Dr. Dry’s address as Laurence R. Dry, M.D., J.D. & Associates, at the
same 140 East Division Road, Oak Ridge address.

       As previously noted, Dr. Dry died on May 17, 2012, two weeks after filing his pro se
third-party complaint. On May 25, 2012, SVMIC and Woods filed a suggestion of death
with the trial court pursuant to Tenn. R. Civ. P. 25.01, which provides as follows:

              (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 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.

A copy of the suggestion of death was served on all parties and also on Ms. Dry at the Dry
law firm’s Oak Ridge address.

        On October 16, 2012, Ms. Dry sent a letter to counsel for SVMIC and Woods,
notifying them of her change of address from 140 East Division Road in Oak Ridge to
“Wanda M. Dry, the Dry Law Firm, P.O. Box 2122, Danville, KY.” On November 13, 2012,
Walker and Griswold filed a motion to dismiss Dr. Dry’s third-party complaint for failure to
file a motion for substitution within the 90-day window provided by Tenn. R. Civ. P. 25.01.
Walker and Griswold also filed a motion for judgment on the pleadings. Copies of the
motions to dismiss for failure to substitute and for judgment on the pleadings were mailed
to Ms. Dry at both her Oak Ridge and Danville addresses. All of the remaining defendants
later joined in Walker and Griswold’s motion to dismiss for failure to substitute.

      A hearing on the defendants’ motions to dismiss was scheduled for December 20,
2012. A few days before the hearing, Ms. Dry called the trial court and asked for permission
to appear at the hearing by telephone. The trial court agreed to allow her telephonic
appearance. At the beginning of the December 20 hearing, Ms. Dry stated the following:

              I just want to make sure that it gets on the record that I’m
              appearing today just as the attorney for myself in the – as a
              defendant. I’m not representing [Dr. Dry] in any way or his

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               estate or anything to do with that. I think all of these motions
               are against him or his estate. He’s a pro se defendant or a pro se
               party.

               THE COURT: Okay. And so, are you a party in this action?

               MS. DRY: No.

Ms. Dry further clarified that an estate had not been opened for Dr. Dry at that point, and that
she was “not the executrix of the estate or the administrator of the estate.”

       The trial court allowed Ms. Dry to make statements and argument at the hearing
despite her lack of standing as a party or legal counsel for a party. After the hearing, the trial
court granted the motions. The trial court entered judgment on December 28, 2012,
dismissing Dr. Dry’s third-party complaint. On January 14, 2013, Ms. Dry filed in the trial
court a notice of appearance as counsel for Dr. Dry, who as of then had been deceased for
eight months. Ms. Dry then filed a notice of appeal on January 16, 2013.

      On May 6, 2013, Ms. Dry filed in this Court a motion to consider post-judgment facts,
which states as follows:

               Appellant, Laurence R. Dry, M.D., J.D., (“Dr. Dry”) by and
               through counsel, pursuant to Rule 14 of the Tennessee Rules of
               Appellate Procedure, respectfully moves this Honorable Court
               to consider the post-judgment facts that Wanda M. Dry was
               appointed as Administrator ad litem for this cause of action on
               March 7, 2013 . . . and is now serving as counsel for [Dr. Dry].

               As grounds for this Motion, Appellant states it is necessary to
               update the factual record because the Order appointing Ms. Dry
               as Administrator ad litem was entered after the dismissal of all
               of Appellant’s claims in the trial court . . . Ms. Dry was
               appointed as Administrator ad litem in response to her Petition
               for Appointment of Administrator ad litem submitted February
               27, 2013, to the Chancery Court of Anderson County . . . .

               Appellant respectfully requests that this Court acknowledge that
               Wanda M. Dry was appointed as Administrator ad litem for this
               cause of action on March 7, 2013, and is now serving as counsel
               for Appellant.

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                                              II.

       Ms. Dry raises the following issues on appeal, as quoted from her brief:

              1. Did Ms. Wanda Dry have standing, as the widow of . . . Dr.
              Dry, to file the Notice of Appeal, and have standing now, as the
              widow and as the administrator ad litem and counsel for
              administrator ad litem, to continue the pursuit of this appeal?

              2. Did having an ex parte hearing on . . . Defendants’ Motions
              to Dismiss for Failure to Substitute violate . . . Dr. Dry’s federal
              and state constitutional due process rights?

              3. Were the Motions to Dismiss for Failure to Substitute granted
              in error because the administrator ad litem was not represented
              at the hearing and was not allowed to present proof that the
              ninety day window for filing the Motion to Substitute had not
              yet passed, and that, even if it had, an enlargement of time
              should have been granted?

              4. Did T.R.C.P. 25.01(1), as applied, violate Dr. Dry’s state and
              federal constitutional due process rights and his equal protection
              rights?

              5. Was the ex parte hearing on . . . Defendants’ Motions for
              Judgment on the Pleadings improper and did it result in the
              wrong conclusion?

                                              III.

        In this non-jury case, our review is de novo upon the record, with a presumption of
correctness as to any factual determinations made by the trial court, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Murfreesboro Med. Clinic, P.A. v. Udom,
166 S.W.3d 674, 678 (Tenn. 2005). The trial court’s conclusions of law, however, are
accorded no such presumption. Udom, 166 S.W.3d at 678; Campbell v. Florida Steel Corp.,
919 S.W.2d 26, 35 (Tenn. 1996). The issue in this case involves the interpretation of Tenn.
R. Civ. P. 25.01, which is a question of law. See Dobbins v. Green, No. W2012-00460-
COA-R3-CV, 2013 WL 1149574 at *3 (Tenn. Ct. App. W.S., filed Mar. 20, 2013); Williams
v. Williams, No. E2012-00162-COA-R3-CV, 2012 WL 3986328 at *1 (Tenn. Ct. App. E.S.,

                                              -5-
filed Sept. 12, 2012); Sowell v. Estate of Davis, No. W2009-00571-COA-R3-CV, 2009 WL
4929402 at *3 (Tenn. Ct. App. W.S., filed Dec. 21, 2009).

       In Douglas v. Estate of Robertson, a case in which the Supreme Court construed and
applied Rule 25.01, the High Court observed that

              [t]rial courts are afforded broad judicial discretion in procedural
              matters in order to expedite litigation and to preserve
              fundamental rights of the parties. An appellate court will not
              reverse a discretionary judgment of the trial court unless it
              affirmatively appears that such discretion has been explicitly
              abused to great injustice and injury of the party complaining.

876 S.W.2d 95, 97 (Tenn. 1994).

                                             IV.

       We first address the issue of whether the trial court correctly granted the defendants’
motion to dismiss for failure to file a motion for substitution within 90 days after the
defendants filed a suggestion of death. Ms. Dry argues that the 90-day period provided in
Tenn. R. Civ. P. 25.01 was not triggered because the defendants did not properly serve notice
of the suggestion of death. We disagree. The defendants served notice by filing the
suggestion of death with the trial court and by mailing a copy to all parties. A copy of the
suggestion of death was mailed to the Dry law firm at its Oak Ridge address. At that time,
Ms. Dry was a co-defendant with Dr. Dry in the malicious prosecution action; co-counsel
with Dr. Dry representing the Koczeras as defendants in the malicious prosecution action;
and Dr. Dry’s surviving spouse. The Drys had filed several documents with the trial court
in the malicious prosecution action, all of which listed their address as 140 East Division
Road in Oak Ridge. There is no indication in the record that another address should have
been used to notify the Drys of the filing of the suggestion of death.

       Moreover, the Dry law firm actually received the notice and copy of the suggestion
of death. When asked by the trial court whether she had been served with the suggestion of
death, Ms. Dry said, “I think that we got, you know, I got a collection of papers that had been
mailed to me and then forwarded to me.” Ms. Dry admitted at oral argument that the Dry law
firm was open and operating at its Oak Ridge address at the time the suggestion of death was
mailed. Ms. Dry’s appellate brief states that “[w]hile Ms. Dry may technically have received
a copy of the Suggestion of Death, she has no recollection of seeing it prior to the end of the
Ninety (90)-day window in which to file the Motion to Substitute.” (Citation to record



                                              -6-
omitted.) Under these circumstances, we hold that the defendants provided sufficient and
proper notice under Tenn. R. Civ. P. 25.01.

       After Ms. Dry gave notice of her change of address, the defendants mailed a copy of
their subsequent motion to dismiss for failure to timely substitute to both her Oak Ridge
address and her new Danville, Kentucky address. It is apparent that Ms. Dry had notice of
the hearing on the motion, because she called the trial court several days before the hearing
and obtained permission to appear by telephone. At the hearing, Ms. Dry took great pains
to make it clear that she was not a party to Dr. Dry’s third-party action, that she was not
representing Dr. Dry in any capacity, and that no estate had been opened at that time. Despite
the fact that Ms. Dry, by her own assertions, demonstrated no standing to be involved in the
defendants’ motions, the trial court allowed her to participate at the hearing and argue
regarding the applicability of Rule 25.01.

        Rule 25.01 unambiguously mandates that “[u]nless the motion for substitution is made
not later than 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.” (Emphasis added.) This Court has recently observed
that “ ‘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.’ ”
Williams, 2012 WL 3986328 at *2 (quoting Sowell, 2009 WL 4929402 at *3). In Williams,
we were presented with a fact pattern similar to the present case. In that case, we stated:

              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 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.

                                    *       *         *

              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

                                                -7-
              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.

2012 WL 3986328 at *2-3 (brackets in original); see also Dobbins, 2013 WL 1149574 at *4
(“The Williams holding is clear – Tennessee Rule of Civil Procedure 25.01 embodies a[n]
unambiguous procedural mechanism for the dismissal of civil actions when the trial court
determines that, in the absence of excusable neglect, a party has failed to file a timely motion
for substitution of party following the filing of a suggestion of death.”). In this case, no
motion for substitution was filed following the suggestion of Dr. Dry’s death, either within
90 days or thereafter. The trial court correctly applied Rule 25.01 and did not abuse its
discretion in dismissing Dr. Dry’s third-party complaint for failure to timely move for
substitution.

        Ms. Dry had clear avenues for potential relief in the trial court. As the Supreme Court
stated twenty years ago,

              Rule 25.01 clearly directs the dismissal of an action if no motion
              for substitution of parties is made within 90 days after
              suggestion of death upon the record. However, Rule 6.02, Tenn.
              R. Civ. P. grants the trial judge broad discretion to enlarge many
              of the procedural time limitations prescribed by the Rules of
              Civil Procedure. Rule 6.02 states in pertinent part:

                      When by statute or by these rules or by a notice
                      given thereunder or by order of court an act is
                      required or allowed to be done at or within a
                      specified time, the court for cause shown may, at
                      any time in its discretion, (1) with or without
                      motion or notice order the period enlarged if
                      request therefore is made before the expiration of
                      the period originally prescribed or as extended by
                      a previous order, or (2) upon motion made after
                      the expiration of the specified period permit the
                      act to be done, where the failure was the result of
                      excusable neglect . . .

                                    *       *         *




                                                -8-
              Tenn. R. Civ. P. 6.02 grants the trial judge wide latitude to
              enlarge on statutory or rule mandated limitations for the
              performance of acts required or allowed to be done within a
              specified time. Cause must be shown, to which we add the
              requirement that it must be reasonable cause. The largesse may
              be granted even if application is made after the expiration of the
              specified period allowed to make the request where the failure
              was the result of excusable neglect.

Douglas, 876 S.W.2d at 97-98. Thus, Ms. Dry could have filed a motion under Rule 6.02
to enlarge the procedural 90-day time limitation on the ground that the failure to file a motion
to substitute was the result of excusable neglect. Moreover, the trial court told Ms. Dry that
it was amenable to considering a motion to reconsider its ruling that Dr. Dry’s third-party
action should be dismissed, stating the following at the hearing:

              What I would suggest that you do is if you’re going to retain
              counsel in reference to this matter, and it may be that somebody
              may want to file a motion for reconsideration, I have no earthly
              idea what you all are going to do, but I’m inclined to grant
              [defendants’] motions as have been argued here based upon my
              review of the record . . .

                                    *       *         *

              [Defendants’ counsel are] going to go ahead and prepare orders
              and they’re going to forward those orders to you. I suggest that
              you take that – take it to a lawyer.

              If you want to file something for reconsideration, I’ll be more
              than happy to consider it once a lawyer gets involved in the
              matter.

Ms. Dry did not file a motion to alter or amend or otherwise ask the court to reconsider. The
trial court’s order of dismissal was a final judgment upon its entry on December 28, 2012.
The 30-day period for filing a notice of appeal started on that date.

        At the time of the trial court’s entry of final judgment, Ms. Dry did not have authority
or standing to file a notice of appeal. As already discussed, she was not a party to the action,
nor did she represent Dr. Dry. Because the estate had not been opened, there was no estate
to be represented and Ms. Dry clearly told the court that she did not represent his estate. We

                                                -9-
are of the opinion that Ms. Dry’s entry of a notice of appearance as counsel for Dr. Dry, filed
with the trial court on January 14, 2013, was ineffective and did not provide her authority to
file a notice of appeal on his behalf. It is obvious that a lawyer cannot unilaterally create an
attorney-client relationship with a deceased person. Furthermore, Tenn. Code Ann. § 30-1-
101 provides that “[n]o person shall presume to enter upon the administration of any
deceased person’s estate until the person has obtained letters of administration or letters
testamentary.” This had not been done at the time of the final judgment.

        Ms. Dry’s actions in petitioning the trial court to be appointed administrator ad litem
and hiring herself as counsel for administrator ad litem came too late to save this appeal.
According to her motion to consider post-judgment facts, she was appointed administrator
ad litem on March 7, 2013, approximately five weeks after the 30-day period for filing a
notice of appeal had expired. See Tenn. R. App. P. 4(a) (“In an appeal as of right . . ., the
notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial
court within 30 days after the date of entry of the judgment appealed from”). “The time limit
set out in Rule 4 is jurisdictional in a civil case [and] this court has no discretion to expand
the time limit set out in Rule 4.” First Nat’l Bank of Polk Cnty. v. Goss, 912 S.W.2d 147,
148 (Tenn. Ct. App. 1995); accord In re Jayden B.-H., No. E2013-00873-COA-R3-PT,
2013 WL 4505389 at *1 (Tenn. Ct. App. E.S., filed Aug. 21, 2013). We acknowledged in
Goss “that trial courts can, in certain extraordinary circumstances, grant relief in accordance
with the requirements of Rule 60.02, T.R.C.P., to parties who failed to file their notice of
appeal within the period of time provided for in the Tennessee Rules of Appellate
Procedure,” but that such relief “relating to timeliness of an appeal is available only under
the most unusual, rare, compelling and propitious circumstances.” 912 S.W.2d at 149, 151.
In any event, Ms. Dry did not seek relief under Rule 60.02 from the trial court.

        Our holding that Ms. Dry did not have standing to appeal is dispositive and renders
moot the remainder of her issues. Even if this were not the case, she has waived these issues
by failing to raise them with the trial court.

                                              V.

       The judgment of the trial court is affirmed and this appeal is dismissed. Costs on
appeal are assessed to the appellant, Wanda McClure Dry. This case is remanded to the trial
court for collection of costs assessed below, pursuant to applicable law.




                                    __________________________________________
                                    CHARLES D. SUSANO, JR., PRESIDING JUDGE

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