                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE

              LINDA BEARD V. JAMES WILLIAM BRANSON ET AL.

                           Circuit Court for Houston County
                                       No. 1368


                No. M2014-01770-COA-R3-CV – Filed April 26, 2016



                       OPINION ON PETITION TO REHEAR

        In an opinion filed on March 31, 2016, we reversed the judgment of the trial court
on the grounds that the wrongful death claims were barred by the statute of limitations
because the only complaint filed prior to the running of the limitations period was void.
The appellee, Linda Beard (“Plaintiff”), timely filed a petition for rehearing pursuant to
Tenn. R. Civ. P. 39 in which she contends the filing of the pro se complaint by the
decedent‟s surviving spouse, Denver Hartley, tolled the statute of limitations even if his
filing constituted the unauthorized practice of law. She also contends the pro se complaint
filed by Mr. Hartley was voidable, not void; therefore, the deficiency could be remedied
pursuant to Tenn. R. Civ. P. 11. Further, she contends the amended complaint, which was
duly signed by a licensed attorney, should relate back to the filing of Mr. Hartley‟s pro se
complaint pursuant to Tenn. R. Civ. P. 17.01.

        Plaintiff contends we erroneously relied on Bivins v. Hosp. Corp. of Am., 910
S.W.2d 441 (Tenn. Ct. App. 1995), to conclude that the complaint filed by Mr. Hartley
did not toll the running of the statute of limitations. We acknowledge, as Plaintiff
correctly states, that “Bivins was not a statute of limitations case.” Nevertheless, Bivins
and other authorities identified in our opinion, clearly hold that a jurisdictional notice or
jurisdictional pleading, such as a notice of appeal or complaint, filed by a non-attorney in
a representative capacity is a nullity. See id. at 447 (citing 7 C.J.S Attorney and Client §
31, p. 869, n.13 & n.20) (holding that “the purported notice of appeal” unsigned by the
appellant or by a duly authorized attorney at law was a nullity); Investors Grp., I Ltd. v.
Knoxville’s Cmty. Dev. Corp., No. E1999-00395-COA-R3-CV, 2001 WL 839837, at *2
(Tenn. Ct. App. July 25, 2001) (holding that a complaint filed on behalf of a limited
partnership and signed only by a non-attorney was “void”); Vandergriff v. ParkRidge E.
Hosp., No. E2014-02253-COA-R3-CV, __S.W.3d__, 2015 WL 9943593, at *4 (Tenn.
Ct. App. Aug. 21, 2015) (stating that proceedings in a suit by a person not entitled to
practice law are a “nullity”). Because the complaint filed by Mr. Hartley was a nullity, it
did not toll the running of the statute of limitations.
       Plaintiff also contends we erroneously relied on Investors Group, I Ltd., 2001 WL
839837, in holding that the pro se complaint filed by Mr. Hartley was void instead of
being voidable. In Investors Group we affirmed the trial court‟s dismissal of the
complaint as being “void” because the complaint, which was filed on behalf of a limited
partnership, Investors Group, I Ltd., was signed by a non-lawyer, Roger Cameron, who
was acting in a representative capacity. Id. at *2. The dispositive facts and the relevant
portion of the court‟s ruling read as follows:

       At the outset, it is necessary to observe that the plaintiff is a Tennessee
       Limited Partnership styled Investors Group I, Ltd. Roger Cameron,
       described as the sole General Partner, is not a party to this action. He signed
       and filed the complaint on behalf of Investors Group I, Ltd. He is not an
       attorney. If Investors Group I, Ltd. is a legal entity, it cannot appear pro se.

       ***

       We hold that a Limited Partnership is an entity under Tennessee law, and
       that a general partner, who is not a licensed attorney, cannot sign and file a
       complaint on its behalf, pursuant to the mandates of Old Hickory
       Engineering and Mach. Co. Inc., supra. We therefore agree with the
       Chancellor that the complaint is void. The appearance of counsel 53 days
       after service of the motion to dismiss did not satisfy the requirement of
       promptness in curing the defect. Cf. Old Hickory, supra wherein the lapse
       was 37 days, and Doyle Shirt Mfg. Corp. v. O’Mara, 1999 Tenn. App.
       Lexis 230, wherein the lapse was 45 days.

Id.

       Although the trial court found the Investors Group complaint “void,” and we
affirmed that ruling, Plaintiff contends that the last sentence in the above quote rendered
the complaint in that case voidable, not void. We respectfully disagree.

        Plaintiff notes in her petition for rehearing that, “if the Court had intended to hold
the filing of such a complaint void ab initio, there would have been no reason to assess
the promptness of any effort to remedy the deficiency.” In the Investors Group opinion,
the promptness of a remedial effort was not germane to the dispositive issue, nor was the
statement regarding promptness necessary in our affirmance of the trial court‟s ruling that
the complaint was void; therefore, it was dicta. See Bellar v. Nat’l Motor Fleets, Inc., 450
S.W.2d 312, 313-14 (Tenn. 1970) (“Dictum is an opinion expressed by a court upon
some question of law which is not necessary to the decision of the case before it.”).
“Court decisions must be read with special reference to the questions involved and
necessary to be decided, and language used which is not decisive of the case or decided

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therein is not binding as precedent.” Shepherd Fleets, Inc. v. Opryland USA, Inc., 759
S.W.2d 914, 922 (Tenn. Ct. App. 1988) (citing Rush v. Chattanooga DuPont Emp. Credit
Union, 358 S.W.2d 333 (Tenn. 1962)). Therefore, the unnecessary statement regarding
prompt remedial action in the Investors Group opinion has no precedential value.
Moreover, we respectfully disagree with the notion that a void complaint, one that is a
nullity, can be remedied. For the foregoing reasons, we respectfully disagree with
Plaintiff‟s contention that the Investors Group complaint was “voidable” for such an
interpretation is in direct conflict with the trial court‟s ruling that the complaint was
“void,” which ruling we affirmed.

       Plaintiff also relies on Old Hickory Engineering & Machine Company, Inc. v.
Henry, 937 S.W.2d 782 (Tenn. 1996), wherein our Supreme Court stated that the 1995
amendment to Tenn. R. Civ. P. 11 provides: “An unsigned paper shall be stricken unless
omission of the signature is corrected promptly after being called to the attention of the
attorney or party.” Id. at 786. Significantly, however, the court expressly stated that the
“amendment is not applicable to this case.” Because the amendment to Tenn. R. Civ. P.
11 was not applicable to the issues on appeal in Old Hickory, it is not binding as
precedent. See Rush, 358 S.W.2d at 350 (“Every decision must be read with special
reference to the questions involved and necessary to be decided, and language used not
decisive of the case or decided therein is not binding as a precedent.”); see also Shepherd
Fleets, Inc., 759 S.W.2d at 922. Nevertheless, we respect the statement by the Supreme
Court in Old Hickory that the 1995 amendment to Tenn. R. Civ. P. 11 “is declarative of
the policy and practice regulating court proceedings in that particular.”1 Old Hickory
Eng’g & Mach. Co., Inc., 937 S.W.2d at 786.

      The foregoing notwithstanding, we believe the dispositive factor is whether the
“unsigned paper” or “pleading” to be amended pursuant to Rule 11 is a “jurisdictional”
paper or pleading, such as a complaint or notice of appeal, or a non-jurisdictional paper


       1
           The relevant portion of the Supreme Court ruling in Old Hickory reads:

       Based on the principle declared by this amendment, the status of the complaint on the
       date it was filed was as though it contained no signature, and, because of that deficiency,
       it was subject to being stricken from the record. The construction most favorable to the
       plaintiff in this case is that the plaintiff was notified of the fatal deficiency in the
       complaint by the defendant‟s motion to dismiss on April 13, 1994, and the plaintiff took
       no action until its attorney filed a notice of appearance on May 20, 1994. That is not
       “prompt” action. In addition, filing notice of appearance did not correct the deficiency.
       Merely advising the court of representation did not constitute the certification required by
       the rule. The action by the plaintiff‟s lawyer did not cure the deficiency in time or
       substance.

Old Hickory Eng’g & Mach. Co., Inc., 937 S.W.2d at 786.


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or pleading that is filed after the trial court has obtained jurisdiction.2 The point being,
although an unsigned paper filed in the latter situation has no bearing on the court‟s
authority to hear a case, if the “unsigned paper” is a jurisdictional notice of appeal or
complaint, then the court does not obtain jurisdiction over the matter. See Bivins, 910
S.W.2d at 447; see also Vandergriff, 2015 WL 9943593, at *6. For example, in
Vandergriff we concluded that a complaint signed only by a non-lawyer who was
attempting to assert the claim of another in a representative capacity was void, a nullity,
and of no legal effect and, because the complaint was void, the trial court never obtained
jurisdiction. See Vandergriff, 2015 WL 9943593, at *5-6. As we explained:

       Something that is “void” has no legal effect. See Black‟s Law Dictionary
       1349 (9th ed.2010). Another legal dictionary defines “void” as “absolutely
       null,” going on to describe an order that is “void ab initio” as “that which is
       void in the beginning, [which] cannot be cured by waiver, acquiescence or
       lapse of time.” Bryan A. Garner, A Modern Legal Dictionary 920 (2d
       ed.2005). Because the complaint was void as to Catherine’s claims, it was
       insufficient to commence an action on her behalf, and neither Catherine
       nor her claims were properly before the trial court. See Tenn. R. Civ. P. 3
       (providing that every civil action commences when a complaint is filed).
       This is of the utmost significance because a decree is “void as to any person
       shown by the record itself not to have been before the Court in person, or
       by representation.” See Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn.
       1996) (emphasis added); see also Tate v. Ault, 771 S.W.2d 416, 419 (Tenn.
       Ct. App. 1988) (noting that a judgment is void if the court rendering it
       lacked jurisdiction over the subject matter or the parties). For the reasons
       stated above, neither Catherine nor her claims were before the trial court;
       therefore, the trial court‟s judgment is void to the extent it ruled on the
       merits of Catherine‟s purported claims. See Gentry, 924 S.W.2d at 680.

Id. at *6 (emphasis added).

        With the foregoing in mind, we turn our attention to consider the office of Tenn.
R. Civ. P. 11 in relation to a void complaint. As is the case with all Tennessee Rules of
Civil Procedure, Rule 11 applies to civil actions. “All civil actions are commenced by
filing a complaint with the clerk of the court.” Tenn. R. Civ. P. 3. The filing of a void
complaint is a nullity, which has no legal effect. See Bivins, 910 S.W.2d at 447; see also
Vandergriff, 2015 WL 9943593, at *6. Therefore, the filing of a void complaint does not
commence a civil action. Because the filing of a void complaint does not commence a
civil action, Rule 11 has no office in relation to a void complaint. For these reasons, we
conclude that Tenn. R. Civ. P. 11 is not available to cure a void complaint.

       2
           Tenn. R. Civ. P. 11 uses the phrase “unsigned paper” not pleading.


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       Moreover if Rule 11.01 were applicable, it would not provide a basis for relief due
to Plaintiff‟s failure to promptly correct the deficiency. The rule reads in pertinent part:

        Every pleading, written motion, and other paper shall be signed by at least
        one attorney of record in the attorney's individual name, or, if the party is
        not represented by an attorney, shall be signed by the party. . . . An
        unsigned paper shall be stricken unless omission of the signature is
        corrected promptly after being called to the attention of the attorney or
        party.

Tenn. R. Civ. P. 11.01 (emphasis added).

        Our courts have considered what is required for a correction to be considered
“prompt” under this rule. See Old Hickory Engineering and Mach. Co., Inc., 937 S.W.2d
at 786 (delay of 37 days was not prompt); Doyle Shirt Mfg. Corp. v. O’Mara, 1999 WL
187160, at *3 (Tenn. Ct. App. April 7, 1999) (delay of 45 days was not prompt);
Investors Group, I Ltd., 2001 WL 839837, at *2 (appearance of counsel 53 days after
service of motion to dismiss did not satisfy the promptness requirement). In this case,
Trinity brought the complaint‟s deficiency to Plaintiff‟s attention on November 1, 2005,
when it filed its motion to dismiss. Plaintiff did not address the deficiency until 121 days
later, on March 2, 2006, when he filed a corrected complaint signed by an attorney.
Therefore, the corrective action was not sufficiently “prompt.”3

        Plaintiff also contends that the amended complaint, which was duly signed by a
licensed attorney and filed after the statute of limitations had run, should relate back to
the initial filing date given the policy of liberality in allowing the addition or substitution
of parties in wrongful death cases. Again, we respectfully disagree.

        Plaintiff correctly notes that there is a policy of “liberality . . . in allowing the
addition or substitution of a proper party plaintiff for an improper plaintiff” under Tenn.
R. Civ. P. 17.01. See Chapman v. King, 572 S.W.2d 925 (Tenn. 1978). However, in each
of the cases Plaintiff relies upon there was a viable complaint wherein a party could be
added or substituted. Here, the complaint Plaintiff seeks to amend does not exist, it is a
nullity because it was void ab initio and “there can be no „relation back‟ to a pleading . . .
that was a nullity from the start.” In re A.S.C., No. E2013-01830-COA-R3-PT, 2014 WL
4269114, at *6 (Tenn. Ct. App. Aug. 29. 2014). Because the complaint filed by Mr.
        3
           The deficiency in the initial complaint was brought to the attention of Plaintiff when Trinity
filed its Rule 12 motion to dismiss; therefore, the time within which Plaintiff could promptly correct the
deficiency began at that time. See Tenn. R. Civ. P. 11.01 (“[A]n unsigned paper shall be stricken unless
omission of the signature is corrected promptly after being called to the attention of the attorney or
party.”).


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Hartley was a nullity, there was no complaint to which the amended complaint could
relate back.

       For the forgoing reasons, we respectfully deny the petition to rehear and
supplement our original opinion with the foregoing, which shall become part of the
court‟s decision in this matter.

      Costs are assessed to the appellee, Linda Beard.

                                                         PER CURIUM




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