1 Defendant, Kas sie Williams, died prior to filing notice of appeal, and notice of appeal was filed and served by her

counsel of reco

rd pursuant to T.R.A.P. 19 (a). By order of this

Court, filed March24, 2000, Ed Mullikin Adminstrator Ad Litem of Estate Kassie Williams was substitutedas the proper party

appellant. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON DARRON SMITH v. ED MULLIKIN , Adminstrator Ad Litem of t he 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 a ppeal involves the application of Tenn. R. Civ. P. 25.01. After plaintiff obtained judgmen t 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 fil ed 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 co u rt to dismiss the appeal and to reinstate the general sessions judgment. Defendant has appealed.

Tenn. R. App . P. 3 A ppeal as of right; Judgment of the Circuit Court is Vacated; Action Dismissed
C RAWFORD , P.J., W.S., delivered t he opinion of the c

ourt, in which FARMER

, J., and LILLARD, J., joined.
Nathan W. Kellum, Lucinda S. M urray Fones;Memphis, For Appellant, Ed Mullikin, Administrator Ad Litem of the Estate of Kassie Williams, Deceased Curtis D. Johnson, Me

mphis, For Appellee

, Darron Smith
OPINION

De fendant, Kassie Williams 1 , appeals the order of the trial court denying her motion t o-2-

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 d amages for personal injuries arising out of an automobile accident which occurred September 27, 1996. After a default judgment was ente

red, defendant

timely appealed to the circuit cour

t for a trial de novo and demanded a jury to try the case.
On February 2, 1998, defend ant 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 failur e to substitute a party defendant pursuant to Tenn.R.Civ.P. 25.01. OnDecember 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 f ile an interlocuto

ry appeal. Upon a

hearing of the motion, the trial court entered an order setting aside the prior order denying the motion to dis miss, instructing that defendant reset the motion to dismiss for a later date.
On February 11, 1999 , the trial c ourt enter ed an “Order De nying Defendant’ s Motion to Dismiss and Grantin

g Plaintiff’s Ora

l Motion to Dismiss Appe al,” which states : This cause

came on to be heard upon Defendant’s Motion to Dismiss the instantaction for failur e of Plaintiff to mov

e to substitute no later than ninety (90) days after deat h of Defendant, Kas sie Williams, was sugges ted 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 fr om Gene ral Sessios, and that the judgment of the General Sessions Cour t oug ht to be rei nstated upon dismissal of this action. For this reason, the Courtgrants Plaintiff’ s oral mo ti on, 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 name

d defendant.
IT IS, T HERE FORE, ORDERED, ADJUDGED AND DECREED that Defendant’s Motionto Dismiss is not well-taken and is hereby denied, and Plai ntiff ’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.-3-

Pertain in g 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 dec ision. Billington v. Crowder , 553 S.W.2d 590, 595 (Tenn. Ct. App. 1977).
Ten ne ssee Rules of Civil Proce dure are applic

able to civil actio

ns appealed or ot

herwise 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 Appea

ls and quoted there

from as follows:
De novo appeals fro

m th e ge neral 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 , 11 9 (Tenn. Ct. App. 19 79). Rather, it provides the parties an entirely new trial as if no othertrial had occurred and as if the case

had originated in t

he circuit court. Teague v. Gooch , 206 Tenn. 291, 296, 333 S.W.2d 1,3 (1 960); Odle v. McCo rmack , 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), Lawrenc

e A. Pivnick, Tenne

ssee 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’ d isputes on the merit

s. Karash v. Pigott , 530 S.W.2d 775, 777 ( Tenn. 1975); Quelette v. Whittemore , 62 7 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 e

ffec t with regard to de novo appeal from the general sessions courts will not only encourage the parties to select the most appropria

te jud icial forum but will also avoid multiple proceedings to resolve the par ties’ dis putes when they can be resolved in a single proceeding.

. . . Accordingly, I would hold that ca ses appeale

d fro m 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.-4-

Tenn.R.Civ.P. 25.01 p

rovides:
Rule 25.01 Death

(1) If a party dies and the cla im is not thereby extinguished, the court may order s

ubstitution of the pr

oper parties.The motion for substitution may be made by any par ty or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as pr

ovided 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 notlater than 90 days after the death is suggested upon the record by service of a statement of the fact of thedeath 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 notlater 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 dir

ects the dismi ss al of an action if no motio n for sub stitution of parties is made within 90 days after suggestion of death upon the record.
Id. at 97. Douglas , as in th e 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 m otion 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 enl

arge 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 i ssue on appeal before the Supreme Court was whether the trial judge abused his discretion in allowing the enlargement of time to sub stitute a party in light of Tenn.R.Civ.P. 6.02. The Supreme Court found that there w as n o 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 th

e requirement th

at it must be re asonable cause. The larg esse may be gran

ted even if application is made after the expiration of the sp ecified period allowedto make the request where the failure was the result of excusable negle

ct.-5-

Id. at 98.
This Court considered a similar issue in Wagner v. Frazier, 712 S.W.2d 109 (Ten n. Ct. App. 1986). In Wagner , the plaintiff died while a decision on the amount of damages wa s pendi ng. When no action wa

s taken to substitute

the proper parti

es as plaintiffs w

ithinthe 90 days after the suggestion of death, defendants filed a moti on to dismiss pursuant to Tenn.R.Civ.P. 25.01. After the motion to

dismiss was filed, the administratrices of plaintiffs’ estate filed twomotions, 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 motio n for substitution. D

efendants oppose

d the motion, and th

e 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 Tenne

ssee since the ad

option of th

e 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 secondterm had passed after the death of a party had been suggested andproved or admitted. T.C.A. § 20-604 [repealed]. But the right to revive the action continued to any time b efore an actual order of abatement

had been made and

entered on therecord. Churchwell v. Bank of East Tennessee , 48 Tenn. 780 (1870). The revivor could be allowed after two terms h ad passed even th

ough a motion to aba

te was pending. Brooks v. Jones , 73 Tenn. 244 (1880).
In general the abo

ve cases are in

line with the decis

ions in the federalcourts that

have construed

Rule 25(a) of the Federal Rules of Civil Procedure. The federal rule is almost identica l to our R ule 25.01. Eachsays that the action “shall” be dismissed if ninety days pas s after the death of a party i s suggested on the r

ecord without a moti on for substitution having been made. Notwithstanding thi s language in Rule 25(a), most of the federal courts considering the probl emhave held that Rule 6(b)(2) of the Fe

deral Rules of Ci

vi l Procedure all ows th e courts to enlarge the time for making substitution beyond the time set in Rule 25( a) e ven if the motion is m ade after the ninety day period has run. Staggers v. Otto Gerda u Company , 359 F.2d 292 (2 nd 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 (3 rd Cir. 1984).
Since federal rule 6(b)(2) is id entical to 6.02(2)-6- 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 pe riod is the result of excusa ble 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 andthe partie s wer e 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 concludethat failure to comply with the rule as to the motion for substitution mandat es dismis sal 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 p laintiff has not ma de any effort to substitut e a proper party defendant, nor has the plaintiff sought any enlargement of time withi n which to do so.
There is a distinct difference between a dismissal of an app eal 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 app

eal and the reins

tatement o f the general sessions judgment. Rule 25.01 explicitly provides for the d

ismissal of the act

ion as to the decea

se d pa rty when no substitu tion is made. Therefore, on the state of the record before us, the judgment of the trial court is vacated. Plaintiff-appellee’s action is dismis sed, and c osts of the appeal are assessed against the appellee, Darron Smith.