IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 28, 2009 Session

MICHAEL SOWELL v. ESTATE OF JAMES W. DAVIS

An Appeal from the Circuit Court for Gibson County

No. 8350 Clayburn Peeples, Judge

No. W2009-00571-COA-R3-CV - Filed December 21, 2009

This appeal involves Tennessee’s savings statute. The plaintiff filed a tort lawsuit against the

defendant. During the pendency of the action, the defendant died. The plaintiff did not file a motion

to substitute the proper party for the deceased defendant, as required under T.R.C.P. 25.01. The

lawsuit was not dismissed on that basis. The trial court allowed the plaintiff to take a voluntary

nonsuit. The plaintiff re-filed the instant lawsuit within one year, making the same allegations as

in the original action but naming the estate of the decedent as the defendant. The estate filed a

motion to dismiss, arguing that the savings statute was inapplicable because the original lawsuit

should have been dismissed pursuant to T.R.C.P. 5.01 for failure to substitute the proper party, and

because the defendants in the original lawsuit and the re-filed lawsuit were not identical. The trial

court granted the estate’s motion to dismiss on both grounds. The plaintiff now appeals. We

reverse, finding that the estate’s argument that it is not an entity capable of being sued has been

waived, and concluding that the trial court erred in determining that the savings statute was

inapplicable.

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

Reversed and Remanded

HOLLY M.KIRBY,J., delivered the opinion of the Court, in which ALAN E.HIGHERS, P.J.,W.S., and

J. STEVEN STAFFORD, J., joined.

Scottie O. Wilkes, Memphis, Tennessee, for the Plaintiff/Appellant, Michael Sowell.

Kyle C. Atkins, Humboldt, Tennessee, for the Defendant/Appellee, Estate of James W. Davis.
The lawsuit arose out of an automobile accident.

1

The documents supporting these facts were not included in the appellate record in this case. However, the 2

facts are undisputed for purposes of this appeal.

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OPINION

FACTS AND PROCEEDINGS BELOW

The facts of this case are undisputed. On July 16, 1999, Plaintiff/Appellant Michael Sowell

(“Sowell”) filed a tort lawsuit against James W. Davis (“Davis”). On May 31, 2005, while the 1

lawsuit was still pending, Defendant Davis died. On August 3, 2005, a suggestion of death was filed

in the case and served on Sowell. According to Rule 25.01 of the Tennessee Rules of Civil

Procedure, a motion to substitute the proper party for a deceased party may be made within ninety

days after the suggestion of death is filed: 

(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.

Tenn. R. Civ. P. 25.01(1). Despite the filing of the suggestion of death, neither Sowell nor a

representative of Davis filed a motion to substitute a proper party for Davis pursuant to Rule 25.01

at any time during the proceedings.

The case proceeded to trial. By the time of trial, Sowell’s counsel had withdrawn, so Sowell

proceeded pro se. Prior to trial, the Defendant filed a motion to dismiss pursuant to the mandatory

language in Rule 25.01. On the morning of trial, May 10, 2007, the trial judge suggested to Sowell

that he file a motion for a voluntary nonsuit. Apparently acting on this advice, Sowell filed a motion

for a voluntary nonsuit, and the trial court entered an order dismissing the case without prejudice on

that basis. The trial court did not adjudicate the defendant’s motion to dismiss based on Rule 25.01.

The trial court’s order granting the voluntary non-suit was not appealed.2

On May 8, 2008, Sowell re-filed this action, pro se, pursuant to Tennessee’s “savings

statute,” this time naming the “Estate of James W. Davis” as the defendant. Pursuant to the

“savings statute,” a voluntarily dismissed lawsuit may be re-filed within one year of such dismissal:

(a) If the action is commenced within the time limited by a rule or statute of

limitation, but the judgment or decree is rendered against the plaintiff upon any
By the time he filed his response, Sowell had retained counsel. 3

-3-

ground not concluding the plaintiff's right of action, . . . the plaintiff, or the plaintiff's

representatives and privies, as the case may be, may, from time to time, commence

a new action within one (1) year after the reversal or arrest. . . . 

Tenn. Code Ann. § 28-1-105 (2000) (“savings statute”). 

On August 8, 2008, “the Estate” filed its answer and a motion to dismiss, arguing that the

re-filed lawsuit must be dismissed pursuant to Rule 25.01 because the Estate of James W. Davis was

never substituted as a proper party in the original action following the suggestion of death filed on

August 3, 2005. “The Estate” relied on the plain language of Rule 25.01, which states that, where

no motion for substitution is made under the Rule within ninety days, “the action shall be dismissed

as to the deceased party.” In addition, “the Estate” argued in its motion that Sowell could not avail

himself of the savings statute, because the parties in the original lawsuit and the re-filed lawsuit were

not identical, asserting that “[t]he savings statute is not applicable to claims in a renewed complaint

against a party not named as a defendant in the original complaint.” Engler v. Karnes Legal Servs.,

No. W2006-02443-COA-R3-CV, 2008 WL 2219279, at *5 (Tenn. Ct. App. May 29, 2008) (quoting

Turner v. Aldor Co. of Nashville, Inc., 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991)).

In response, Sowell argued that Rule 25.01 is inapplicable because the original case was

terminated based on his motion to take a voluntary nonsuit, not pursuant to Rule 25.01. Sowell 3

asserted that he was entitled to take a voluntary nonsuit because, at the time, no adverse decision had

been entered against him. See Tenn. R. Civ. P. 41.01. Therefore, Sowell contended, pursuant to the

savings statute, he was entitled to re-file his lawsuit within one year. Furthermore, he claimed,

James Davis and the “Estate of James Davis” are one and the same for purposes of the savings

statute. Thus, because the original lawsuit and the re-filed lawsuit were substantially the same, he

argued, “the Estate’s” motion to dismiss should be denied.

On December 1, 2008, the trial court conducted a hearing on “the Estate’s” motion to

dismiss. At the conclusion of the hearing, the trial court granted the motion. On February 11, 2009,

the trial court entered an order of dismissal, stating:

Michael Sowell had not complied with Rule 25.01 and therefore this matter shall be

dismissed. Further, the savings statute can not be applied to save a claim against a

party who was not a party to the original action.

From this order, Sowell now appeals.
Again, we note that the record of the first lawsuit was not filed with the appellate record in this case.

4

However, the facts are undisputed by the parties.

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ISSUES ON APPEAL AND STANDARD OF REVIEW

On appeal, Sowell makes the same arguments as he made to the trial court, that Rule 25.01

is inapplicable because the first lawsuit was voluntarily dismissed, and that the savings statute is

applicable to his re-filed lawsuit because the defendants named in the first and second lawsuits are

substantially identical. The facts involved in this appeal are undisputed, and the issues presented are

purely questions of law. Therefore, we review the trial court’s decision de novo on the record

presented, without a presumption of correctness in the trial court’s decision. See In re Estate of

Williams, No. M2000-02434-COA-R3-CV, 2003 WL 1961805, at *26 (Tenn. Ct. App. Apr. 28,

2003).

ANALYSIS

Rule 25.01

We first address Sowell’s argument that the trial court erred in dismissing this lawsuit based

on his failure to comply with Rule 25.01 in the original lawsuit. Sowell concedes that the trial court

could have dismissed the original lawsuit pursuant to Rule 25.01 after the time for permitting

substitution of parties expired. He notes, however, that the lawsuit was not dismissed on that basis.

Rather, the case proceeded to trial, and Sowell filed a motion to take a voluntary nonsuit as

suggested by the trial court. The trial court granted the nonsuit and dismissed the case without

prejudice, and there was no appeal of the trial court’s order. Therefore, he claims, because the case

was not actually dismissed based on Rule 25.01, but rather was dismissed without prejudice, he was

permitted to avail himself of the protection of the savings statute. In response, “the Estate” argues

that the language of Rule 25.01 is mandatory, and that the trial court did not err in dismissing

Sowell’s lawsuit on this basis.

We agree 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. Thus, it

appears that the trial court in the original lawsuit would have been justified in dismissing that lawsuit

based on Sowell’s failure to substitute the proper party within ninety days of the suggestion of

Davis’s death. It is undisputed, however, that the lawsuit was not in fact dismissed on that basis.

Rather, the trial court dismissed the lawsuit without prejudice based on Sowell’s motion to take a

voluntary nonsuit. The trial court’s failure to adjudicate Davis’s motion to dismiss based on Rule

25.01 could have been appealed, but it was not. The savings statute operates to save a lawsuit if it 4

is resolved “upon any ground not concluding the plaintiff’s right of action . . . .” Tenn. Code Ann.

§ 28-1-205. The fact that the original lawsuit could have been dismissed pursuant to Rule 25.01 is

of no moment, because it was not dismissed on that basis. Sowell’s lawsuit was actually dismissed

without prejudice on a ground that did not conclude his right of action, so Sowell was permitted to

avail himself of the savings statute.

Identical Parties
At oral argument, counsel for Sowell argued that, if the issue had been raised in the trial court, Sowell would 5

then have had the opportunity to seek an amendment of his petition to substitute the proper party for the Estate.

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Sowell next argues that the trial court erred in finding that the savings statute was not

applicable to his re-filed lawsuit, because “the Estate” was not a party to the original action. This

Court has held that the savings statute applies only when the original complaint and the re-filed

complaint are “substantially for the same cause of action,” and has specified that “[t]here must be

an identity of the parties in order for the new and original complaints to be substantially the same.”

Turner v. Aldor Co. of Nashville, Inc., 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991). Sowell urges

this Court to find, however, that the original lawsuit and this lawsuit are “substantially the same

cause of action,” and that the parties are identical for purposes of the savings statute. 

In response, “the Estate” argues that a strict application of the “identity of parties”

requirement is necessary to prevent abuse of Tennessee’s savings statute. It notes that “James W.

Davis” and the “Estate of James W. Davis” are in fact not one and the same. Sowell had an

opportunity to substitute the proper party in the original action, but failed to do so. Therefore, “the

Estate” argues, Sowell should not be permitted to “save” a lawsuit against a party who was not a

party to the original lawsuit. 

Neither party has cited a Tennessee case on this issue, and we have found none. Therefore,

it must be considered an issue of first impression. It is certainly true that Sowell could have, and

should have, substituted the proper party for the decedent Davis after the suggestion of death was

filed in the original lawsuit. However, for purposes of resolving this issue, the situation is the same

as if Davis’s death occurred after the original lawsuit was nonsuited. In such a situation, the plaintiff

would have no choice but to re-file the lawsuit against the estate of the decedent through the personal

representative. Under the reasoning advocated by “the Estate,” the plaintiff in that circumstance

would be precluded from availing himself of the savings statute. We cannot agree with this

interpretation. Therefore, we must respectfully disagree with the holding of the trial court. Under

the circumstances presented in this case, we conclude that, for purposes of the savings statute,

“Davis” and the “Estate of Davis” are considered to be substantially identical. 

Estate Not A Party Capable of Being Sued

On appeal, “the Estate” asserts that this Court should affirm the trial court’s dismissal of

Sowell’s complaint for the additional reason that Sowell’s lawsuit was filed against the estate, rather

than the personal representative of the estate, and an estate is not a proper party capable of suing or

being sued. Sowell concedes that, under Tennessee law, an estate is not a proper party defendant

capable of being sued except in certain circumstances. See Bryant v. Estate of Klein, No. M2008-

01546-COA-R9-CV, 2009 WL 1065936 (Tenn. Ct. App. Apr. 20, 2009) (citing Goss v. Hutchins,

751 S.W.2d 821, 824 (Tenn. 1998)). He notes, however, that “the Estate” did not raise this issue in

the trial court, and that, therefore, this argument has been waived. Indeed, “the Estate” points to no 5

place in the record in which the issue was brought before the trial court. 
-6-

It is well settled that issues not raised in the trial court are waived and may not be raised for

the first time on appeal. See Alexander v. Armentrout, 24 S.W.3d 267, 272 (Tenn. 2000); see also

Tenn. R. App. P. 36(a). From our review of the appellate record, we find that this issue was not

properly raised and that, therefore, it has been waived.

CONCLUSION 

The decision of the trial court is reversed and the cause is remanded for further proceedings

consistent with this Opinion. Costs on appeal are to be taxed to Appellee Estate of James W. Davis,

for which execution may issue, if necessary.

___________________________________ 

HOLLY M. KIRBY, JUDGE