                                                                                                        11/06/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   September 18, 2019 Session

    WALTER JOSHLIN ET AL. v. HOLLIS H. HALFORD, III M.D. ET AL.

                     Appeal from the Circuit Court for Shelby County
                       No. CT-000263-13 James F. Russell, Judge
                        ___________________________________

                               No. W2018-02290-COA-R9-CV
                           ___________________________________

In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion
to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply
with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court
and remand the case for further proceedings.

  Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Circuit
                          Court Reversed and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Andrea N. Malkin and Samantha E. Bennett, Memphis, Tennessee, for the appellant,
Hollis H. Halford, III, M.D.

Buckner Wellford and Leslie Issacman Yohey, Memphis, Tennessee, for the appellant,
Methodist Healthcare-Memphis Hospitals.

Bruce A. McMullen and Mary Wu Tullis, Memphis, Tennessee, for the appellant,
HealthSouth/Methodist Rehabilitation Hospital, LP.

Amber Griffin Shaw, J. Houston Gordon, and Lyle Reid, Covington, Tennessee, for the
appellee, Vivian Joshlin.


                                              OPINION

                              I.    FACTS & PROCEDURAL HISTORY1
        1
         The facts included in our discussion are limited to those pertinent to the issue presented and do
not extend to the merits of the case. For purposes of this appeal, the facts are largely undisputed.
       In 2013, Walter Joshlin and wife, Vivian Joshlin (collectively “Plaintiffs”), filed a
medical malpractice action against Hollis H. Halford, III, M.D. (“Dr. Halford”),
Methodist Healthcare-Memphis Hospitals (“Methodist”), and HealthSouth/Methodist
Rehabilitation Hospital,      Limited Partnership (“HealthSouth”) (collectively
“Defendants”), for injuries Mr. Joshlin reportedly sustained because of negligent medical
care and treatment rendered by Defendants in September 2011.2 Mrs. Joshlin alleged loss
of consortium associated with the underlying injury to her husband. Defendants filed
answers denying all allegations of wrongdoing.

       In February 2014, Mr. Joshlin passed away from lung cancer, a condition
unrelated to the basis for the existing lawsuit. One month later, Plaintiffs’ counsel filed a
notice of death. In May 2014, an estate was opened for Mr. Joshlin. Jimmy Joshlin3 and
Vivian Joshlin were named as co-executors of the estate. In October 2014, Dr. Halford’s
counsel sent correspondence to Plaintiffs’ counsel inquiring as to the status of the case
and indicating that a “Suggestion of Death and [a] new plaintiff” were needed in the case.
Plaintiffs’ counsel responded to the letter by sending Dr. Halford’s counsel a copy of the
notice of death previously filed on March 25, 2014.

       On June 26, 2015, Dr. Halford filed a motion to dismiss for Plaintiffs’ failure to
timely substitute a proper party for Mr. Joshlin. Three days later, Plaintiffs filed a motion
for substitution and motion to amend their complaint, requesting that the co-executors of
Mr. Joshlin’s estate be substituted in his place.4 Plaintiffs contend that they merely filed
the motion to satisfy the demands of Defendants, and did not believe it was required in
order to proceed with the subject cause of action.

       In July 2015, HealthSouth and Methodist joined in Dr. Halford’s motion and
incorporated by reference all of the law and argument set forth in his motion. In
November 2015, Plaintiffs filed a response in opposition to the motion to dismiss.
Plaintiffs argued that Tennessee Rule of Civil Procedure 25.01(2) applied and that no
substitution of a party was required. Alternatively, they argued that if the trial court
found that substitution of a party was necessary, “no inexcusable neglect” occurred to
warrant a dismissal with prejudice.

       In May 2016, the trial court heard oral arguments on the motion to dismiss. An
order denying the motion was entered in July 2016. The order provided that:

        2
           The reported injury to Mr. Joshlin occurred prior to the enactment of the Tennessee Health Care
Liability Act. Further, when Plaintiffs filed their initial complaint, they named only Dr. Halford and
Methodist as Defendants. In May 2013, they filed their first amended complaint adding HealthSouth.
         3
           Based upon statements of counsel and the judge, it is presumed that Jimmy Joshlin is the son of
Walter Joshlin.
         4
           Plaintiffs did not file a motion for enlargement of time in accordance with Tennessee Rule of
Civil Procedure 6.02.
                                                  -2-
      Pursuant to Tenn[.] Code Ann[.] § 20-5-106 the cause of action of Plaintiff,
      Walter Joshlin, did not abate at his death, but passed to Plaintiff, Vivian
      Joshlin, as his surviving spouse, who is already a party plaintiff[.] Rule
      25[.]01(2) of the Tennessee Rules of Civil Procedure thus controls[.] The
      death has been suggested on the record and “the action shall proceed in
      favor of the surviving [party plaintiff]”, Vivian Joshlin[.]

       The trial court’s order also incorporated a portion of the transcript from the
hearing, which provided the “[c]ourt’s reasoning.” The relevant portion of the transcript
provides:

             The Court has examined carefully all of the authorities cited, has
      examined carefully the applicable statutory provisions, as well as Rule 25
      of the Tennessee Rules of Civil Procedure. And please appreciate this, the
      Court is of the considered opinion that the parties have really made this
      issue more complicated than it needs to be. In that regard, the Court makes
      these observations.

             First, it is abundantly clear to the Court that Rule 25 is there in order
      to provide a mechanism and put a mechanism in place by which a suit may
      proceed where a party dies and leaves a void. If no substitution is made,
      there is no mechanism by which the suit can be prosecuted, and must be
      dismissed in the case of a plaintiff, or defaulted in the case of a defendant.

              Next we turn to Tennessee Code Annotated Section 20-5-101 et seq
      with more specific emphasis upon TCA 20-5-106. And that code section
      tells us that the cause of action that belonged to a person who has been
      injured by another does not abate . . . with that person’s death. Rather, it
      passes first to the surviving spouse, and if no surviving spouse, then [it]
      basically goes through a line that follows intestate succession. It concludes
      with a statement that funds recovered are to be taken free and clear from the
      claims of creditors.

             The footnote would be appropriate here. We all know and recognize
      that in common law, such a suit would have abated with the death of an
      injured person. It is well recognized in many authorities, and legal minds
      have written about . . . TCA 20-5-101. . . changing all of that.

              With those thoughts in mind, we turn then to the situation . . . before
      us in this case. Here let’s assume for the sake of discussion that Mr. Joshlin
      had been the sole plaintiff at his death, there would have been a void and an
      emptiness. There would [be] no way for the case to go forward except by
                                            -3-
       following the steps set forth in the Tennessee Rules of Civil Procedure,
       specifically Rule 25.

              But here it would . . . then be appropriate for Mrs. Joshlin to
       substitute herself as party plaintiff to prosecute her claim, and you can
       underline the word her, please, for emphasis, that passed to her by
       operation of law at her husband’s death. That would fill the void and move
       the case forward. It should be noted that she and she alone owns and
       possesses the cause of action that once belonged to her husband prior to his
       death.

              The Court can find nothing in Rule 25 or in the Tennessee Code that
       would require Vivian Joshlin to come in to this lawsuit as a[n] . . .
       administratrix . . . or . . . executrix . . . of some estate opened on behalf of
       her husband. She and she alone owns the claim, and there would be no
       need in the situation here for the surviving spouse who is already a party to
       this suit, . . . to substitute herself for herself. All those things considered,
       the Court is compelled to a conclusion that the motion to dismiss must be
       denied, and it will be.

      In August 2016, Dr. Halford filed a motion for permission to seek an interlocutory
appeal in which both HealthSouth and Methodist joined. Plaintiffs filed a response in
opposition to the motion. The trial court heard arguments on Defendants’ motion on
December 8, 2017. It issued an oral ruling at the conclusion of the hearing granting
Defendants’ motion. A written order was entered on December 19, 2018. Subsequently,
Dr. Halford filed a Rule 9 application for permission to appeal, which was joined by
HealthSouth and Methodist, and ultimately granted by this Court.

                                  II.     ISSUE PRESENTED

       This Court, in its order granting Rule 9 review, limited the issue to the following:
Whether the trial court erred in denying Defendants’ motion to dismiss by holding
decedent’s claims passed automatically to his surviving spouse without need to substitute
parties, pursuant to Tennessee Code Annotated section 20-5-106 and Tennessee Rule of
Civil Procedure 25.01(2).

                                        III.   DISCUSSION

                                    A. Standard of Review

       The limited issue this Court has framed for review requires application of
Tennessee Code Annotated section 20-5-106 and Tennessee Rule of Civil Procedure
25.01 to the facts of this case. Because the resolution of the issue presented is a question
                                           -4-
of law, our review is de novo with no presumption of correctness. See Sallee v. Barrett,
171 S.W.3d 822, 825 (Tenn. 2005) (“The construction of statutes and application of the
law to the facts of a case are questions of law. Accordingly, the standard of appellate
review is de novo without any presumption of correctness given to the lower courts’
conclusions of law.”).

                             B. Tenn. Code Ann. § 20-5-106

       We begin by addressing the relevance of Tennessee Code Annotated section 20-5-
106 to the facts of this case. It is important to note that the following facts are
undisputed: (1) Mr. Joshlin’s medical malpractice cause of action was pending at the time
of his death; and (2) Mr. Joshlin’s death was unrelated to any alleged wrongdoing of
Defendants. These facts are significant in determining the applicability of the specific
statutes and rules to the facts.

       We also emphasize that the general “survival statutes” are codified at Tennessee
Code Annotated sections 20-5-101--105 and 114--120; in contrast, the wrongful death
survival statutes are codified at sections 20-5-106--113. Timmins v. Lindsey, 310 S.W.3d
840 n.2 (Tenn. Ct. App. 2009). As Defendants have noted, we thoroughly discussed the
implications that death of a party had on a cause of action in Timmins, 310 S.W.3d at
840, explaining:

             At common law, when a party to an action died while the case was
      pending the action abated. Tenn. Code Ann. § 20-5-101 abrogates the
      common law rule by providing that causes of action do not abate by the
      death of either party; this statute is a “survival statute” that permits the
      decedent’s cause of action to survive the death, so that the decedent,
      through his or her estate, recovers damages that would have been
      recovered by the decedent had he or she lived to the resolution of the case.
      See Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 597 (Tenn.
      1999) (citing Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 575 n.2, 94
      S. Ct. 806, 39 L.Ed.2d 9 (1974)). Because the survival statute abrogates the
      common law rule, the statutory method for preserving either an existing
      action or a vested cause of action not yet commenced must be strictly
      followed. See Preston v. Golde, 80 Tenn. 267, 12 Lea 267-275 (1883);
      McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 318 (1904).

             Tennessee’s wrongful death statutes, Tenn. Code Ann. §§ 20-5-106--
      113, are also survival statutes; they are distinguished, however, from the
      other survival statutes because, in addition to preserving whatever cause of
      action was vested in the decedent at the time of death, they also create a
      new cause of action that compensates survivors of the decedent for their
      losses. See Jordan, 984 S.W.2d at 598. Tennessee courts have long held
                                           -5-
      that the wrongful death statutes, because of their “hybrid” nature, must be
      construed with reference to one another. See Foster v. Jeffers, 813 S.W.2d
      449, 451 (Tenn. Ct. App. 1991). Courts have also held that in order for the
      wrongful death statutes to apply, the victim must have died as a result of his
      or her injuries. See e.g., Willis v. Heath, 21 Tenn. App. 179, 107 S.W.2d
      228 (1937) (widow could not bring an action to recover for the negligent
      injury of her deceased husband where it appeared that such injuries were
      not a contributing cause of his death); Daniel v. East Tenn. Coal Co., 105
      Tenn. 470, 58 S.W. 859, 860 (1900); Nashville v. Reese, 138 Tenn. 471,
      197 S.W. 492 (1917).

             ....

              Tenn. Code Ann. § 20-5-102 directs the procedural steps to be
      followed when a party dies. The first phrase in § 20-5-102 addresses how
      an existing action is to be preserved upon the death of a party--by revival.
      [See Tenn. Code Ann. § 20-5-102 (“No civil action commenced, whether
      founded on wrongs or contracts, except actions for wrongs affecting the
      character of the plaintiff, shall abate by the death of either party, but may
      be revived. . . .”)]. The manner in which a pending action is to be revived is
      then provided for at Tenn. Code Ann. §§ 20-5-103 (causes surviving death
      of tort-feasor), -104 (revival by or against heirs) and -105 (revival by or
      against successor in interest). The remainder of § 20-5-102, beginning after
      the first semi-colon, [(“nor shall any right of action arising hereafter. . .
      .”)] provides the procedural steps to be taken when a person who has
      suffered some wrong dies before he or she was able to commence a cause
      of action. The statute provides that the right of action passes in the “same
      manner” as the right of action described in Tenn. Code Ann. § 20-5-106; in
      other words, the right of action goes to the same person as designated in the
      statute. Tenn. Code Ann. §§ 20-5-102--105 address only the procedural
      steps that must be taken to preserve a cause of action, whether already
      commenced or vested in the decedent but not yet commenced.

Timmins, 310 S.W.3d at 840-41 (emphasis added) (internal footnotes omitted). In
Timmins, we explained that the wrongful death statutes were inapplicable to an unrelated
personal injury action. We explained that a “wrongful death action is separate and
distinct from an action to recover for personal injuries where, through happenstance, the
plaintiff dies.” Id. at 842. The plaintiff in Timmins attempted to construe the survival
statutes and wrongful death statutes together. We rejected that approach because
“Plaintiff's reading of the statutes in conjunction would provide that any civil action
commenced wherein a party dies should proceed as an action for wrongful death under
Tenn. Code Ann. § 20-5-106.” Id. at 841 (emphasis in original). We found that such an

                                          -6-
interpretation did “not comport with the purpose and plain language of Tennessee Code
Annotated section 20-5-102.” Id.

       Following our rationale in Timmins, we disagree with the trial court’s reliance on
the wrongful death statutes, and specifically Tennessee Code Annotated section 20-5-
106, in finding that Mr. Joshlin’s cause of action automatically passed to his wife as
surviving spouse.5 The trial court found that Mrs. Joshlin could pursue the claim because
it “passed to her by operation of law at her husband’s death” as the surviving spouse
pursuant to Tennessee Code Annotated section 20-5-106, and “she and she alone owns
and possesses the cause of action that once belonged to her husband prior to his death.”
It found “no need” for her to “come in to this lawsuit as a[n] . . . administratrix . . . or . . .
executrix . . . of some estate opened on behalf of her husband.”

       As in Timmins, a finding that Tennessee Code Annotated section 20-5-106 is
applicable to this case “would provide that any civil action commenced wherein a party
dies should proceed as an action for wrongful death under Tenn. Code Ann. § 20-5-106 . .
. This interpretation, however, does not comport with the purpose and plain language of
Tenn. Code Ann. § 20-5-102.” Id. at 841 (emphasis in original). Tennessee Code
Annotated section 20-5-102 states:

               No civil action commenced, whether founded on wrongs or
       contracts, 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 § 20-5-106.

Tenn. Code Ann. § 20-5-102. Mr. Joshlin’s lawsuit against Defendants was pending at
the time that he died from unrelated causes. Therefore, as stated in Timmins, the first part
of Tennessee Code Annotated section 20-5-102 is applicable to the facts of this case, and
the existing action was eligible to be revived. We find the trial court’s reliance on the
second part of the statute to be misplaced, as it addresses a “right of action,” and Timmins

       5
           Tennessee Code Annotated section 20-5-106 provides:

       (a) The right of action that a person who dies from injuries received from another, or
       whose death is caused by the wrongful act, omission, or killing by another, would have
       had against the wrongdoer, in case death had not ensued, shall not abate or be
       extinguished by the person’s death but shall pass to the person’s surviving spouse and, in
       case there is no surviving spouse, to the person’s children or next of kin; to the person’s
       personal representative, for the benefit of the person’s surviving spouse or next of kin; to
       the person’s natural parents or parent or next of kin . . . ; the funds recovered in either
       case to be free from the claims of creditors.
                                                  -7-
explains that it only applies “when a person who has suffered some wrong dies before he
or she was able to commence a cause of action.” Id. at 841. “[T]he statutory method for
preserving either an existing action or a vested cause of action not yet commenced must
be strictly followed.” Id. at 840 (emphasis added). Because the trial court erroneously
relied on the second part of the statute, the trial court subsequently erred in considering
the provisions of Tennessee Code Annotated section 20-5-106 in reaching its ultimate
conclusion.6

        Since the lawsuit did not abate, and could be revived, the trial court must first look
to the controlling survival statutes to determine the proper means of revival. The manner
in which a pending action is to be revived is set forth in Tennessee Code Annotated
sections 20-5-103–105.7 Tennessee Code Annotated section 20-5-104 states, “[i]f no
person will administer on the estate of a deceased plaintiff or defendant, the suit may be
revived by or against the heirs of the decedent.” Here, an estate was opened for Mr.
Joshlin; therefore, the co-executors of his estate would be the appropriate parties to revive
Mr. Joshlin’s medical malpractice action. See Timmins, 310 S.W.3d at 840 (explaining
that the survival statutes permit “the decedent’s cause of action to survive the death, so
that the decedent, through his or her estate, recovers damages that would have been
recovered by the decedent had he or she lived to the resolution of the case”) (emphasis
added). Having determined that the co-executors are the proper parties, it is necessary to
review the applicable rules to determine the procedure which must be followed.

                             C. Tennessee Rule of Civil Procedure 25.01

       Once a court determines who may revive an action, Tennessee Rule of Civil
Procedure 25.01 provides the method in which revival must occur. If a lawsuit is not
revived by proper compliance with Rule 25.01, it is abated under the mandatory language
of the rule, i.e., “shall be dismissed.” Dobbins v. Green, No. W2012-00460-COA-R3-
CV, 2013 WL 1149574, at *4 (Tenn. Ct. App. Mar. 20, 2013) (emphasis in original).

        Rule 25.01 provides:

        (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

        6
           The trial judge stated at the hearing on the motion for permission to seek an interlocutory appeal
that he did not recall that Mr. Joshlin had died of causes unrelated to the medical malpractice action, nor
did he recall taking it into account when ruling on Defendants’ motion to dismiss. The trial judge also
acknowledged that such fact “might make a difference” in the outcome.
         7
           Tennessee Code Annotated section 20-5-103 applies to causes of action surviving the death of a
tort-feasor. Tennessee Code Annotated section 20-5-105 applies to causes of action that may be revived
by or against a successor in interest, rather than an heir or personal representative. See Timmins, 310
S.W.3d at 841.
                                                   -8-
        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.

        (2) In the event of the death of one or more of the plaintiffs or of one or
        more of the defendants in an action in which the right sought to be enforced
        survives only to the surviving plaintiffs or only against the surviving
        defendants, the action does not abate. The death shall be suggested upon
        the record and the action shall proceed in favor of or against the surviving
        parties.

Tenn. R. Civ. P. 25.01.

       At the hearing on Defendants’ motion to dismiss, Plaintiffs argued that a
substitution of parties was unnecessary because Mr. Joshlin’s claim passed to Mrs.
Joshlin automatically. Ultimately, the trial court agreed with Plaintiffs and denied
Defendants’ motion.8 However, we find Plaintiffs’ reliance on Rule 25.01(2) to be
misplaced. Section (2) applies when “the right sought to be enforced survives only to the
surviving plaintiffs. . . .” (emphasis added). Mr. Joshlin’s claim was his alone, survived
his death, and then became an asset of his estate. See Timmins, 310 S.W.3d at 840
(explaining that a “survival statute” permits the decedent’s cause of action to survive the
death, so that the decedent, through his or her estate, recovers damages that would have
been recovered by the decedent). As previously explained, Mr. Joshlin’s existing
medical malpractice action did not pass automatically to Mrs. Joshlin. Mrs. Joshlin was a
party to the medical malpractice action in her individual capacity, and not co-executor of
her husband’s estate. In her individual capacity as plaintiff in the malpractice action,
Mrs. Joshlin asserted a claim for loss of consortium, which is separate and distinct from
Mr. Joshlin’s personal injury claim. See Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d
555, 557 (Tenn. 2001) (explaining that loss of consortium is a derivative claim that is “a
separate claim from that of an injured spouse”) (internal quotation omitted). Therefore,
Mrs. Joshlin could not automatically pursue Mr. Joshlin's rights and remedies based
solely on the fact that she was also a named plaintiff with a separate claim pending in her
individual capacity. Rather, the action had to be preserved by following the procedural
directives in Tennessee Code Annotated section 20-5-104 and Rule 25.01(1). See

        8
           Plaintiffs’ motion for substitution of a party was not addressed separately. However, we assume
that the trial court found the motion for substitution unnecessary, as the trial judge remarked that “there
would be no need in the situation here for the surviving spouse who is already a party to this suit, . . . to
substitute herself for herself.”

                                                   -9-
Timmins, 310 S.W.3d at 841; see also Dubis v. Loyd, 540 S.W.3d 4, 8 (Tenn. Ct. App.
2016).

       As we have held, the prerequisite to revive an action is the filing of a motion for
substitution of a party within the time mandated by Tennessee Rule of Civil Procedure
25.01. Further, Rule “25.01(1) requires that a motion for substitution of party must be
made within ninety (90) days of the filing of the suggestion of death.” Dobbins, 2013
WL 1149574, at *1. Here, it is undisputed that the motion for substitution filed by the
co-executors, on June 29, 2015, was filed more than one year after the filing of the
suggestion of death.9

       Courts in other jurisdictions have reached the same conclusion when faced with
similar facts involving husband and wife co-plaintiffs. For instance, in Wentz v. Best
Western International, Inc., No. 3:05-CV-368, 2007 WL 869620, at *1 (E.D. Tenn. Mar.
20, 2007), a husband and wife were co-plaintiffs in a personal injury action, the husband
died during the litigation, and a suggestion of death was filed. The defendants moved to
dismiss for failure to timely file a motion for substitution of parties. The wife had
operated under the assumption that Federal Rule of Civil Procedure 25(a)(2) allowed her
to automatically proceed in the action on behalf of her deceased husband.10 Id. The court
explained:

      [P]laintiff misinterpreted Federal Rule of Civil Procedure 25(a)(2) in
      believing that the rule resulted in Mr. Wentz’s causes of action immediately
      accruing to her. Instead, Rule 25(a)(2) applies in situations where “one of
      several plaintiffs or one of several defendants dies” and results in the action
      not abating “with regards to the other parties even if it does abate with
      regards to the party who has died.” Wright, Miller & Kane, Federal
      Practice And Procedure: Civil 2D § 1954. Here, this would mean that any
      claims plaintiff herself is asserting are not ipso facto terminated on account
      of Mr. Wentz’s death. It does not, however, mean that plaintiff
      automatically becomes the representative of Mr. Wentz for the purposes of
      9
          The suggestion of death was filed on March 25, 2014.
      10
           Federal Rule of Civil Procedure 25 provides, in pertinent part:

      (a) Death.
      (1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not
      extinguished, the court may order substitution of the proper party. A motion for
      substitution may be made by any party or by the decedent's successor or representative. If
      the motion is not made within 90 days after service of a statement noting the death, the
      action by or against the decedent must be dismissed.
      (2) Continuation Among the Remaining Parties. After a party's death, if the right sought
      to be enforced survives only to or against the remaining parties, the action does not abate,
      but proceeds in favor of or against the remaining parties. The death should be noted on
      the record.
                                                  - 10 -
       continuing to assert his claims without filing the requisite motion for
       substitution.

Id. at *2. See also In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 2:13-CV-
01775, 2017 WL 3045496, at *2 (S.D. W. Va. July 18, 2017) (rejecting the argument that
a motion to substitute was not necessary where the decedent’s husband was already a co-
plaintiff and later the personal representative of the estate, as he could not pursue any
claims asserted by his wife without complying with the substitution requirement); Tiffany
v. O'Toole Realty Co., 52 Del. 83, 88 (Del. Super. Ct. 1959) (“[T]he deceased’s causes of
action survived only to his executor or administrator and not to any heir or beneficiary in
their individual capacity. Even though Mrs. Tiffany subsequently became the deceased’s
executrix, she was not a party to this action in that capacity when it was originally filed,
so the right of action sought to be enforced cannot survive to her as a surviving
plaintiff.”).

       In its ruling, the trial court found that Mr. Joshlin’s existing cause of action was
solely “owned” by Mrs. Joshlin in accordance with Tennessee Code Annotated section
20-5-106. Respectfully, we reiterate that the trial court’s reliance on Tennessee Code
Annotated section 20-5-106 was misplaced. It is undisputed that Mr. Joshlin’s medical
malpractice claim survived his death. Accordingly, the trial court erred in denying
Defendants’ motion to dismiss on the basis that a motion for substitution of parties was
not required pursuant to Tennessee Rule of Civil Procedure 25.01(2).

                                          D. Tenn. R. Civ. P. 6.02

       We now shift our attention to Plaintiffs’ alternative argument, that their failure to
comply with Tennessee Rule of Civil Procedure 25.01(1) was due to excusable neglect.
We reiterate that Plaintiffs did not file a motion for substitution of a party within ninety
days of the filing of the suggestion of death. However, although the language in Rule
25.01(1) is mandatory, the ninety day timeframe may be extended. See Tenn. R. Civ. P.
6.02.11 As explained in Dubis, 540 S.W.3d at 9:



       11
            Rule 6.02 provides, 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 therefor 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 to act was
       the result of excusable neglect . . . .

                                                     - 11 -
       The Tennessee Supreme Court has previously held . . . that the ninety day
       time period may be extended in the event of excusable neglect pursuant to
       Rule 6.02 of the Tennessee Rules of Civil Procedure, discussed in detail
       infra. Douglas v. Estate of Robertson, 876 S.W.2d 95, 98 (Tenn. 1994)
       (citing Wagner v. Frazier, 712 S.W.2d 109, 113 (Tenn. Ct. App. 1986)).

        Here, it is undisputed that Plaintiffs failed to file a motion for enlargement of time
in accordance with Tennessee Rule of Civil Procedure 6.02. However, Plaintiffs argued
in their written response to the motion to dismiss that there was “no inexcusable neglect
present in this case that would require dismissal. . . .” This court has explained that in
certain circumstances a formal motion for enlargement of time may not be required to
determine if excusable neglect exists. See Maness v. Garbes, No. M2008-00797-COA-
R3-CV, 2009 WL 837707, at *3 (Tenn. Ct. App. Mar. 26, 2009) (recognizing that the
plaintiffs did not file a motion with the trial court requesting relief under Rule 6.02 but
concluding that their response to a motion to dismiss “could be construed as containing a
prayer for relief under Rule 6.02.”); see also Kenyon v. Handal, 122 S.W.3d 743, 755-56
(Tenn. Ct. App. 2003) (explaining that even though a party failed to file a motion for
enlargement of time, the “trial court should have employed the standards in Tenn. R. Civ.
P. 6.02” to determine whether such party was “entitled to an enlargement of time” under
the excusable neglect standard).

       The trial court did not address the applicability of Rule 6.02 to the facts of this
case or address the late-filed motion for substitution, as it incorrectly relied on Tennessee
Code Annotated section 20-5-106 and Tennessee Rule of Civil Procedure 25.01(2) to
support its denial of Defendants’ motion to dismiss. We have determined that such
reliance was erroneous. However, given the limited nature of the issue before us in the
context of this Rule 9 appeal, we decline to consider the parties’ arguments regarding
Rule 6.02 and the late-filed motion for substitution. On remand, the trial court should
determine whether Plaintiffs’ response to Defendants’ motion to dismiss should be
construed as a motion for enlargement of time. If the trial court determines that the
substance of the response is a request for relief under Rule 6.02, it should then determine
whether Plaintiffs’ failure to act within the prescribed time was the result of excusable
neglect.

                                     IV. CONCLUSION

       For the aforementioned reasons, the decision of the circuit court is reversed and
this case is remanded to the trial court for further proceedings consistent with this
opinion. Costs of this appeal are taxed to the appellee, Vivian Joshlin, for which
execution may issue if necessary.

                                                     _________________________________
                                                     CARMA DENNIS MCGEE, JUDGE
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