                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               February 19, 2013 Session

   PEGGY DOBBINS, As Conservator of the Estate of Frank Bailey, Jr. v.
                   GERALD S. GREEN, ET AL.

              Direct Appeal from the Circuit Court for Shelby County
             No. CT-000581-10, Div. 1    John R. McCarroll, Jr., Judge


                No. W2012-00460-COA-R3-CV - Filed March 20, 2013


This is a Tennessee Rule of Civil Procedure 25.01 case. Following plaintiff’s death and the
filing of a suggestion of death in the trial court, no motion to substitute party was made
within the ninety day time period set out in Rule 25.01. The trial court determined that the
failure to file a motion for substitution of party was not the result of excusable neglect and
granted the Rule 25.01 motion to dismiss the lawsuit. The court subsequently also granted
the plaintiff’s motion for voluntary dismissal under Tennessee Rule of Civil Procedure 41.01.
We conclude that, in the absence of excusable neglect, failure to comply with Rule 25.01
requires mandatory dismissal of the case with prejudice and the lawsuit may not thereafter
be revived by the filing of a motion for voluntary dismissal. Reversed and remanded.


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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and D AVID R. F ARMER, J., joined.

Gerald S. Green, Memphis, Tennessee, Pro Se.

Julian T. Bolton and JoeDae L. Jenkins, Memphis, Tennessee, for the appellee, Peggy
Dobbins.

Jay A. Ebelhar and Nolan Johnson, Memphis, Tennessee, for the appellee, CitiFinancial
Services, Inc.

Douglas A. Black, Memphis, Tennessee, for the appellees, Regions Bank and Regions
Financial Corporations.
James R. Newson, III, Memphis, Tennessee, for the appellees, Springleaf Financial Services,
Inc. f/k/a American General Financial Services, Inc.

Michael G. McLaren and Courtney C. McLaren, Memphis, Tennessee, for the appellee,
Fidelity & Deposit Company of Maryland.

                                         OPINION

        On February 5, 2010, Plaintiff /Appellee Peggy Dobbins, as conservator of the estate
and person of Frank J. Bailey, Jr., a legally incompetent adult, filed suit against Thelma J.
Jones, Wilbert Jones, Lue N. Young, Jones H. Young, Gerald S. Green, Fidelity and Deposit
Company of Maryland, Inc., Regions Bank, Inc, f/k/a Union Planters Bank, Regions
Financial Corporation, f/k/a Union Planters Financial Services, Inc., a/k/a Union Planters
Insurance Agency, Inc. d/b/a Regions/Morgan Keegan Financial Services, American General
Financial Services, Inc., and CitiFinancial Services Inc. (together, “Defendants”). In relevant
part, the complaint avers that the Defendants engaged in a conspiracy to defraud Frank J.
Bailey, Jr. of his inheritance, after the death of his father, Frank J. Bailey, Sr. Mr. Bailey,
Sr.’s estate was opened in the Shelby County Probate Court on March 2, 2001. The attorney
of record for Mr. Bailey, Sr.’s estate is Gerald S. Green, the sole Appellant in this appeal.
The facts surrounding the alleged conspiracy to defraud Mr. Bailey, Jr. are not germane to
the instant appeal. Rather, the instant appeal involves procedural issues that arose after Mr.
Bailey, Jr. died on June 27, 2012.

      After Mr. Bailey, Jr.’s death, on June 29, 2012, Mr. Green filed a Suggestion of Death
under Tennessee Rule of Civil Procedure 25.01(1), which provides:

              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 ninety (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.

       Tennessee Rule of Civil Procedure 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. As of

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October 1, 2010, more than ninety days after Mr. Green filed the suggestion of Mr. Bailey,
Jr.’s death, no motion for substitution of party had been filed. Accordingly, Mr. Green filed
a motion to dismiss the lawsuit. The other Defendants later joined in Mr. Green’s motion to
dismiss.

       On October 6, 2010, Ms. Dobbins filed a motion for enlargement of time to move for
substitution of party. On October 19, 2010, Ms. Dobbins filed a motion for substitution of
party. On December 9, 2010, Ms. Dobbins filed a motion for leave to amend the complaint
to substitute a different party-plaintiff. These motions, along with Mr. Green’s motion to
dismiss, were heard on October 13, 2012. At that hearing, Plaintiff’s attorney stated to the
court that his claim of excusable neglect (in failing to file for substitution of party) “is based
solely on (a) his assertion that Tenn. R. Civ. P. 25.01 is an obscure rule, and (b) the fact that
he did not calendar the 90-day deadline provided by Tenn. R. Civ. P. 25.01 for moving to
substitute parties.” The trial court did not find that these reasons constituted excusable
neglect. Accordingly, the court orally ruled that the motion to dismiss, pursuant to Tennessee
Rule of Civil Procedure 25.01, should be granted.1 However, the court posed the question
of whether the dismissal should be with or without prejudice. The court set a hearing on that
question for November 17, 2011 to allow the parties time to brief the issue.

       On November 15, 2011, Ms. Dobbins filed a motion for revivor, seeking an order of
substitution of party and leave to amend the complaint. This motion was also considered at
the November 17, 2011 hearing. Following that hearing, the trial court denied Ms. Dobbins’s
motion to amend and motion for revivor and orally stated that the dismissal, under Tennessee
Rule of Civil Procedure 25.01, would be with prejudice:

                 THE COURT: Let me tell you where I am on the various issues
                 that we presented up to now . . . I think that the prior ruling
                 granting the motion to dismiss was proper. I don’t think the
                 motion to either amend or revive is proper because . . . I’ve
                 already ruled on what the issues are. . . . I think that the granting
                 of the motion is dispositive, and therefore, it should be
                 dismissed with prejudice.

       For the first time at the November 17, 2011 hearing, which was after the court had
orally granted the Rule 25.01 motion to dismiss at the October 13 hearing, Ms. Dobbins
asserted that she should be allowed to take a voluntary nonsuit without prejudice, pursuant
to Tennessee Rule of Civil Procedure 41.01. Defendants cited the case of Hamilton v. Cook,
No. 02A01-9712-CV-00324, 1998 WL 704528 (Tenn. Ct. App. Oct. 12, 1998), for the

       1
           These findings were set out in the court’s January 19, 2012 order, see infra.

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proposition that a plaintiff loses the right to take a voluntary nonsuit after an oral ruling on
a dispositive motion, i.e., in this case, the Tennessee Rule of Civil Procedure 25.01 motion
to dismiss. The trial court then set another hearing for January 5, 2012, to determine whether
the plaintiff may take a voluntary nonsuit after its oral grant of the Rule 25.01 motion:

              THE COURT: Based on this case [i.e., Hamilton], . . . it would
              appear that having made that prior oral ruling prior to today and
              reaffirming today, that then the plaintiffs would not be in a
              position to take a voluntary nonsuit. But I want[] to give them
              a chance to respond to it . . . . [A]fter you look at it . . . if you are
              convinced it is good law and you want to enter an order so we
              can get the appellate process started, that’s fine. If you want an
              oral hearing on it, please let me know and I’ll give you an oral
              hearing.

       On November 30, 2011, Ms. Dobbins filed a notice of voluntary nonsuit or, in the
alternative, a motion for voluntary nonsuit without prejudice. The court heard additional
arguments on January 5, 2012 and entered an order on January 19, 2012, granting
Defendants’s Rule 25.01 motion without prejudice, and also granting Plaintiff’s Rule 41.01
motion for voluntary nonsuit without prejudice.

       Mr. Green appeals. There are two issues for review, which we state as follows:

              1. Whether a dismissal pursuant to Tennessee Rule of Civil
              Procedure 25.01 operates as a dismissal with prejudice?

              2. If so, whether a plaintiff has a right to voluntarily dismiss the
              case without prejudice, following an oral ruling of dismissal
              with prejudice under Rule 25.01?

        The facts here are undisputed. After Mr. Bailey, Jr. died, a suggestion of death was
filed in the record, but no motion for substitution was made within the ninety-day period
prescribed in Tennessee Rule of Civil Procedure 25.01. As noted above, the trial court
determined, at the October 13, 2012 hearing, that the failure to file a substitution of party was
not excusable neglect that would justify the extension of the ninety day time limit. That
finding is not challenged on appeal. Rather, as set out above, the sole issues are questions
of law, regarding the proper interpretation of Tennessee Rules of Civil Procedure 25.01 and
41.01. As such, our review is de novo, upon the record, with no presumption of correctness.
Tenn. R. App. P. 13(d); Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn. 2000).



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        It is undisputed that the Plaintiff made no motion for substitution of party within
ninety days after Mr. Bailey, Jr.’s death was suggested on the record. In Scott v. Roberson,
No. M2011-00016-COA-R3-CV, 2011 WL 3760940 (Tenn. Ct. App. Aug. 24, 2011), this
Court held that “[d]espite the mandatory language set forth in Rule 25.01(1), Tenn. R. Civ.
P. 6.02 provides that the time within which an act must be performed may be enlarged upon
showing of excusable neglect . . . .”2 However, because the trial court determined that
Plaintiff’s failure to move for substitution of party was not based upon excusable neglect,
which finding is not disputed on appeal, the enlargement of time allowed under Rule 6.02
is not applicable in this case. Accordingly, Plaintiff was required to comply with the
mandate of Rule 25.01 by filing a substitution of party within the requisite ninety day period.
The question, then, is whether Plaintiff’s failure to do so should result in dismissal, with
prejudice, of the lawsuit.

        In the recent case of Williams v. Williams, No. E2012-00162-COA-R3-CV, 2012 WL
3986328 (Tenn. Ct. App. Sept. 12, 2012), the defendant filed a suggestion of death following
plaintiff’s death. As in the instant case, no motion for substitution of a proper party was
made within ninety days after the plaintiff had filed the suggestion of death. Id. at *1.
Thereafter, the plaintiff filed a motion for voluntary dismissal without prejudice, while the
defendant moved for summary judgment. Id. The trial court granted plaintiff’s motion for
voluntary dismissal, despite the plaintiff’s failure to comply with the substitution requirement
under Rule 25.01. In reviewing the trial court’s decision, this Court first noted that “[i]t is
Rule 25.01 itself that requires action by a trial court if a motion for substitution of proper
party is not timely filed.” Id. at *2 (emphasis added). Indeed, Rule 25.01, as set out in full
context above, states that the action “shall be dismissed” if a party fails to comply with the
requirements contained in the rule. Id. at *2 (quoting Tenn. R. Civ. P. 25.01); see also
Advisory Committee Comment to Tenn. R. Civ. P. 25.01 (amended effective May 17, 2005)
(“Rule 25.01 provides that the suit will be dismissed unless a motion for substitution of party
is made not later than 90 days after the death is suggested on the record.”). Based upon the
foregoing, the Williams Court reasoned that “[t]he plain language of 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.” Id. at *2 (emphasis added) (citing Sowell v. Estate of
Davis, No. W2009-00571-COA-R3-CV, 2009 WL 4929401, at *3 (Tenn. Ct. App. Dec. 21,

       2
           Tennessee Rule of Civil Procedure 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 . . . 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. . .

                                                     -5-
2009)). Accordingly, this Court vacated the trial court’s judgment and dismissed the action,
with prejudice, pursuant to Tennessee Rule of Civil Procedure 25.01:

              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
              Voluntary Dismissal or Regions Bank’s Motion for Summary
              Judgment.

Williams, 2009 WL 4929402 at *3 (emphases added).

       The Williams holding is clear—Tennessee Rule of Civil Procedure 25.01 embodies
a 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. The Williams case also
stands for the proposition that, once Tennessee Rule of Civil Procedure 25.01 operates to
dismiss the claim, the claim cannot be revived by other means, i.e., under other rules of
procedure.

        The Williams case is in keeping with the purpose of Rule 25.01, which is revivor of
an action that has abated. At common law, the death of a party resulted in abatement of all
lawsuits involving that party until such time as the suit was properly revived. See, e.g.,
Rogers v. Breen, 56 Tenn. 679, 1872 WL 3905 (Tenn. 1872) (stating that “the death of the
sole plaintiff in the suit was an abatement or suspension of all authority to proceed further
until revivor of the suit.”). “Abatement, in the sense of common law, is an entire overthrow
or destruction of the suit, so that it is quashed and ended. At common law, a suit, when
abated, is absolutely dead.” Carver v. State, 398 S.W.2d 719 (Tenn. 1966). Consequently,
unless revived, upon the death of the plaintiff, a lawsuit abates. Furthermore, the prerequisite
to revive an action is to file a motion for substitution of party within the time mandated by
Tennessee Rule of Civil Procedure 25.01. Mid-South Pavers, Inc. v. Arnco Construction,
Inc., 771 S.W.2d 420, 423 (Tenn. Ct. App. Jan. 12, 1989) (“Revivor of an action therefore
requires first, entering an order of substitution of parties.”). Accordingly, 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.”

      Under Williams, the trial court erred in failing to dismiss the case with prejudice
pursuant to Rule 25.01, once it determined that the failure to move for substitution of party
was not the product of excusable neglect. Instead of enforcing the mandatory language of
Rule 25.01, the court stated, in its January 19, 2012 order:



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                 At the January 5, 2012 hearing the Court further ruled that,
                 pursuant to the authority of Hamilton v. Cook, No. 02A01-
                 9712-CV-00324, 1998 WL 704528 (Tenn. Ct. App. Oct. 12,
                 1998), after the Court orally announced that it would grant
                 Defendant Gerald Green’s Motion to Dismiss at the October 13,
                 2011 hearing, Plaintiff could no longer take a voluntary nonsuit
                 as a matter of right. However, the Court, in the exercise of its
                 discretion ruled that it should grant Plaintiff’s [] motion for
                 voluntary dismissal pursuant to Tenn. R. Civ. P. 41.01, the Court
                 finding that plain legal prejudice to Defendants would not result.

Respectfully, the trial court’s reliance on Hamilton is misplaced. Hamilton does not involve
the application or operation of Tennessee Rule of Civil Procedure 25.01. Rather, Williams
is controlling in this case.3 Under that authority, having determined that there was no
excusable neglect so as to enlarge the ninety day time limit, and having determined that no
motion for substitution of party was filed within ninety days of the filing of the suggestion
of death, Rule 25.01 operates to dismiss the case. Accordingly, the trial court had no
discretion or authority to allow revival of the case once it was rendered moribund under Rule
25.01.

       For the foregoing reasons, we reverse the order of the trial court and remand for entry
of an order of dismissal with prejudice under Tennessee Rule of Civil Procedure 25.01.
Costs of this appeal are assessed against the Appellee, Peggy Dobbins, for which execution
may issue if necessary.




                                                             _________________________________
                                                             J. STEVEN STAFFORD, JUDGE




        3
           The trial court’s failure to rely on Williams is explained by the fact that at the time the trial court
made its final ruling, January 19, 2012, the Williams opinion had yet to be filed. Indeed, Williams was not
filed until some eight months later on September 12, 2012. Accordingly, the trial court, unlike this Court,
did not have the benefit of the Williams opinion when deciding this case.

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