1

 Defendant, Kassie Williams, died prior to filing notice of appeal, and notice of appeal was

filed and served by her counsel of record pursuant to T.R.A.P. 19 (a). By order of this Court, filed

March 24, 2000, Ed Mullikin Adminstrator Ad Litem of Estate Kassie Williams was substituted as

the proper party appellant.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

DARRON SMITH v. ED MULLIKIN, Adminstrator Ad Litem of the Estate

of KASSIE WILLIAMS, Deceased

An Appeal from the Circuit Court for Shelby County

No. 91411 T.D. The Honorable D'Army Bailey, Judge

No. W1999-00105-COA-R3-CV - Decided April 5, 2000

This appeal involves the application of Tenn. R. Civ. P. 25.01. After plaintiff obtained judgment

in general sessions court, defendant appealed to circuit court for a de novo trial. While the case was

pending in circuit court, defendant died, and a suggestion of death was duly filed by defendant's

counsel. Upon failure of plaintiff to substitute a party defendant, defendant moved to dismiss the

action pursuant to Tenn. R. Civ. P. 25.01(1). The trial court denied defendant's motion and granted

plaintiff's oral motion in open court to dismiss the appeal and to reinstate the general sessions

judgment. Defendant has appealed.

Tenn. R. App. P. 3 Appeal as of right; Judgment of the Circuit Court is Vacated; Action

Dismissed

CRAWFORD, P.J., W.S., delivered the opinion of the court, in which FARMER, J., and LILLARD,

J., joined.

Nathan W. Kellum, Lucinda S. Murray Fones; Memphis, For Appellant, Ed Mullikin, Administrator

Ad Litem of the Estate of Kassie Williams, Deceased

Curtis D. Johnson, Memphis, For Appellee, Darron Smith

OPINION

Defendant, Kassie Williams1

, appeals the order of the trial court denying her motion to
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dismiss the action of plaintiff, Darron Smith, and granting plaintiff’s oral motion to dismiss the

appeal and to reinstate the general sessions judgment. 

On July 14, 1997, plaintiff filed this action in the General Sessions Court of Shelby County,

Tennessee, seeking damages for personal injuries arising out of an automobile accident which

occurred September 27, 1996. After a default judgment was entered, defendant timely appealed to

the circuit court for a trial de novo and demanded a jury to try the case. 

On February 2, 1998, defendant died, and on May 4, 1998, defendant’s attorney filed a

suggestion of death upon the record and duly served plaintiff’s counsel. 

On August 17, 1998, defendant filed a motion to dismiss the action for failure to substitute

a party defendant pursuant to Tenn.R.Civ.P. 25.01. On December 1, 1998, the trial court entered an

order denying defendant’s motion which stated “that either party may substitute, and plaintiff was

not required to move within the ninety (90) day period.” On December 3, 1998, defendant filed a

motion for permission to file an interlocutory appeal. Upon a hearing of the motion, the trial court

entered an order setting aside the prior order denying the motion to dismiss, instructing that

defendant reset the motion to dismiss for a later date. 

On February 11, 1999, the trial court entered an “Order Denying Defendant’s Motion to

Dismiss and Granting Plaintiff’s Oral Motion to Dismiss Appeal,” which states:

This cause came on to be heard upon Defendant’s Motion to

Dismiss the instant action for failure of Plaintiff to move to substitute

no later than ninety (90) days after death of Defendant, Kassie

Williams, was suggested on the record by counsel of deceased

defendant. It is the opinion of the Court that this Motion ought to be

denied.

The Court finds that this matter is an appeal from General

Sessios, and that the judgment of the General Sessions Court ought

to be reinstated upon dismissal of this action. For this reason, the

Court grants Plaintiff’s oral motion, brought on the day of the

hearing, to dismiss the appeal and reinstate the General Sessions

judgment. It is the opinion of the Court that the deceased Defendant

is required to move to substitute a named defendant.

IT IS, THEREFORE, ORDERED, ADJUDGED AND

DECREED that Defendant’s Motion to Dismiss is not well-taken and

is hereby denied, and Plaintiff’s oral motion to dismiss appeal and

reinstate the general Sessions judgment is hereby granted.

The only issue on appeal is whether the trial court erred in its disposition of the case.
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Pertaining to this appeal, there are no disputed facts. The question before the Court is an

issue of law. Therefore, on appeal there is no presumption of correctness of the trial court’s decision.

Billington v. Crowder, 553 S.W.2d 590, 595 (Tenn. Ct. App. 1977).

Tennessee Rules of Civil Procedure are applicable to civil actions appealed or otherwise

transferred to the circuit or chancery courts. Tenn.R.Civ.P. 1. Upon appeal from general sessions

court to circuit court, the circuit court case is tried de novo. T.C.A. § 16-15-729. In Ware v.

Meharry Medical College, 898 S.W.2d 181 (Tenn. 1995), the Supreme Court adopted Judge Koch’s

dissenting opinion in the Court of Appeals and quoted therefrom as follows:

De novo appeals from the general sessions courts differ from other

types of appellate proceedings. The circuit court does not review the

general sessions court’s decision. Hohenberg Bros. Co. v. Missouri

Pac. RR., 586 S.W.2d 117, 119 (Tenn. Ct. App. 1979). Rather, it

provides the parties an entirely new trial as if no other trial had

occurred and as if the case had originated in the circuit court. Teague

v. Gooch, 206 Tenn. 291, 296, 333 S.W.2d 1,3 (1960); Odle v.

McCormack, 185 Tenn. 439, 445, 206 S.W.2d 416, 419 (1947);

Braveman v. Roberts Constr. Co., 748 S.W.2d 433, 435 (Tenn. Ct.

App. 1987), Lawrence A. Pivnick, Tennessee Circuit Court Practice,

§ 3-10, at 115 (3d ed. 1991) (“Pivnick”).

* * *

The Tennessee Rules of Civil procedure favor using a single

proceeding to resolve all the parties’ disputes on the merits. Karash

v. Pigott, 530 S.W.2d 775, 777 (Tenn. 1975); Quelette v.

Whittemore, 627 S.W.2d 681, 682 (Tenn. Ct. App. 1981). They

govern civil actions appealed to the circuit court. Tenn. R. Civ. P. 1.

Giving them full effect with regard to de novo appeal from the

general sessions courts will not only encourage the parties to select

the most appropriate judicial forum but will also avoid multiple

proceedings to resolve the parties’ disputes when they can be resolved

in a single proceeding. 

. . . 

Accordingly, I would hold that cases appealed from the general

sessions court to the circuit court pursuant to Tenn. Code Ann. § 16-

15-729 should be treated for all purposes as if they originated in the

circuit court. 

Id at 184, 186.
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Tenn.R.Civ.P. 25.01 provides:

Rule 25.01 Death

(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.

We find no ambiguity in the rule’s statement that “unless the motion for substitution is made

not later than 90 days after the death is suggested . . . the action shall be dismissed as to the deceased

party.” (Emphasis added). Our Supreme Court recognized the lack of ambiguity in this statement

in Douglas v. Estate of Robertson, 876 S.W.2d 95 (Tenn. 1994), wherein it stated:

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.

Id. at 97. Douglas, as in the case at bar, involved a tort action for damages resulting from an

automobile accident. During the pendency of the suit, the defendant, Robertson, died. The attorney

for the defendant filed a suggestion of death upon the record, and plaintiffs failed to file a motion

to substitute the decedent’s estate within 90 days of suggestion of death. Thereupon, the defendant

filed a motion to dismiss pursuant to the rule. However, after defendant filed the motion to dismiss,

plaintiff filed a motion to enlarge the time to substitute a party. The trial court granted this motion

at the same time it denied the defendant’s motion to dismiss. The issue on appeal before the

Supreme Court was whether the trial judge abused his discretion in allowing the enlargement of time

to substitute a party in light of Tenn.R.Civ.P. 6.02. The Supreme Court found that there was no

such abuse of discretion, stating:

As noted infra, 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.
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Id. at 98.

This Court considered a similar issue in Wagner v. Frazier, 712 S.W.2d 109 (Tenn. Ct. App.

1986). In Wagner, the plaintiff died while a decision on the amount of damages was pending.

When no action was taken to substitute the proper parties as plaintiffs within the 90 days after the

suggestion of death, defendants filed a motion to dismiss pursuant to Tenn.R.Civ.P. 25.01. After

the motion to dismiss was filed, the administratrices of plaintiffs’ estate filed two motions, one to

substitute themselves as plaintiffs, and, two, for an extension of time beyond the 90 days allowed

by Rule 25.01 for filing the motion for substitution. Defendants opposed the motion, and the

chancellor granted the motions for extension of time and for substitution, and overruled the motion

to dismiss. On appeal, this Court stated as to this issue:

So far as we can tell, the precise question in this case has not

been decided in Tennessee since the adoption of the Rules of Civil

Procedure in 1971. However, decisions under prior law may be

helpful. Under prior law the suit was subject to abatement when the

second term had passed after the death of a party had been suggested

and proved or admitted. T.C.A. § 20-604 [repealed]. But the right to

revive the action continued to any time before an actual order of

abatement had been made and entered on the record. Churchwell v.

Bank of East Tennessee, 48 Tenn. 780 (1870). The revivor could be

allowed after two terms had passed even though a motion to abate

was pending. Brooks v. Jones, 73 Tenn. 244 (1880).

In general the above cases are in line with the decisions in the

federal courts that have construed Rule 25(a) of the Federal Rules of

Civil Procedure. The federal rule is almost identical to our Rule

25.01. Each says that the action “shall” be dismissed if ninety days

pass after the death of a party is suggested on the record without a

motion for substitution having been made. Notwithstanding this

language in Rule 25(a), most of the federal courts considering the

problem have held that Rule 6(b)(2) of the Federal Rules of Civil

Procedure allows the courts to enlarge the time for making

substitution beyond the time set in Rule 25(a) even if the motion is

made after the ninety day period has run. Staggers v. Otto Gerdau

Company, 359 F.2d 292 (2nd Cir. 1966); Blair v. Beech Aircraft

Corp., 104 F.R.D. 21 (1984); Tatterson v. Koppers Co., 104 F.R.D.

19 (1984). The latitude allowed by Rule 6(b)(2) however, is subject

to the requirement that the failure to move within the time allowed be

a result of “excusable neglect.” Farrington v. Benjamin, 100 F.R.D.

474 (1984); Urban v. Talleyville Fire Co., 732 F.2d 147 (3rd Cir.

1984).

Since federal rule 6(b)(2) is identical to 6.02(2)
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Tenn.R.Civ.P., we think our Rule 25.01 should be construed to allow

substitution of parties after the ninety day period has run if the failure

to move within the period is the result of excusable neglect. As is

generally true, the kind of excuse that will satisfy this requirement is

a function of the length of time that has passed and the possible harm

to the opposite party. In this case where the suit had been fully tried

and the parties were awaiting a decision from the court and the

motion was made eight days after the ninety day period had run, we

think the mere oversight of the plaintiff is excusable.

Id. at 113.

From a review of Rule 25.01 and the decisions in Douglas and Wagner, we conclude that

failure to comply with the rule as to the motion for substitution mandates dismissal of the action

unless the trial court, in the exercise of its discretion pursuant to Tenn.R.Civ.P. 6.02, extends the 90-

day period for “excusable neglect.” In the case before us, the plaintiff has not made any effort to

substitute a proper party defendant, nor has the plaintiff sought any enlargement of time within

which to do so. 

There is a distinct difference between a dismissal of an appeal and dismissal of an action.

See Katz v. Bilsky, 759 S.W.2d 420, 422 (Tenn. Ct. App. 1986). The record reveals no justification

for dismissal of the appeal and the reinstatement of the general sessions judgment. Rule 25.01

explicitly provides for the dismissal of the action as to the deceased party when no substitution is

made.

Therefore, on the state of the record before us, the judgment of the trial court is vacated.

Plaintiff-appellee’s action is dismissed, and costs of the appeal are assessed against the appellee,

Darron Smith.