FILED

October 28, 1998

Cecil Crowson, Jr.

Appe llate Court C lerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

MARGARET MARIE BARNES, ) 

)

Plaintiff/Appellant, ) Shelby Circuit No. 83304 T.D.

)

VS. ) Appeal No. 02A01-9801-CV-00011

)

BRIGHT GLADE CONVALESCENT )

HOME, LOUIS MONTESI and )

DEBORAH HENDERSON, )

ADMINISTRATOR AD LITEM OF )

THE ESTATE OF LOUIS MONTESI, )

DECEASED, )

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE

THE HONORABLE KAY S. ROBILIO, JUDGE

RONALD C. WILSON

Memphis, Tennessee

Attorney for Appellant

ROBERT A. WAMPLER

WAMPLER & PIERCE, P.C.

Memphis, Tennessee

Attorney for Appellees

DISMISSED

ALAN E. HIGHERS, J.

CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
1

Interestingly, we are unaware of any authority whereby a decedent’s attorney of record can file a

sugges tion of death pursua nt to R ule 25.01 of th e Te nnessee Ru les of Civil Proce dure . While it appears to

us that Tennessee ca ses have not addre ssed this issue , we s imply note that fe dera l courts construing the

similar federal Rule 25 have held that a decedent’s attorney of record cannot file a suggestion of death on the

deced ent’s beh alf so as to trigger th e com men cem ent of R ule 25's 90 day period. See Farris v. Lynchburg

Foundry, 769 F.2 d 958 (4 th Cir. 198 5); Rende v. Kay, 415 F.2d 983, 985-96 (D.C. Cir. 1969); Hilsabeck v.

Lane Company, Inc., 168 F.R .D. 313, 3 14-15 (D .Kan. 19 96); Kessler v. Southeast Permanente Medical

Group, 165 F.R .D. 54, 56 (E.D.N .C. 1995 ); Al-Jundi v. Estate of Rockefeller, 757 F. Supp. 206, 210 (W.D.N.Y.

1990); Al-Jundi v. Rockefeller, 88 F.R.D . 244, 246 (W.D.N .Y. 1980 ). See also 7C Ch arles A. W right et al.,

Federal Practice and Procedure § 1955 at 545 (1986). Because we have determined that we must dismiss

the subjec t appeal, howe ver, w e res erve reso lution of this issue until it is p rope rly raised on ap peal.

2

Margaret Barnes (Plaintiff) appeals the trial court’s order of dismissal, dismissing her complaint as to

Defendant Louis Montesi (Montesi). Based upon the record before this Court, we dismiss the subject appeal

because Plaintiff has appealed from an order that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties and because the trial court did not direct the entry of a final judgment

upon an express determination that there is no just reason for delay and upon an express direction for the

entry of judgment.

Plaintiff commenced this personal injury lawsuit against both Bright Glade Convalescent Home and

Montesi on November 22, 1996. Thereafter, both named defendants filed their respective answers to Plaintiff’s

complaint. On March 7, 1997, Montesi’s attorney of record filed and served a suggestion of death, suggesting

upon the record the fact of Montesi’s death, which occurred February 28, 1997. 

1

 On June 6, 1997, Plaintiff

filed a motion seeking to substitute “the administrator of the Estate of Louis Montesi as a Defendant in this

action.” Plaintiff’s motion was later served on Bright Glade’s and Montesi’s attorneys of record on June 23,

1997. On June 16, 1997, the attorney of record for Montesi filed and served a motion to dismiss. On August

4, 1997, the trial court entered an order granting the “motion of the defendant, Louis Montesi, to dismiss the

complaint filed herein against him.” The court’s order explained that Plaintiff filed her motion to substitute “in

a timely manner, but did not sign and date the Certificate of Service.” The court’s order further explained that

Plaintiff’s service did not conform with the service requirements of Rule 25.01 of the Tennessee Rules of Civil

Procedure. Thereafter, on September 2, 1997, Plaintiff filed a subsequent motion entitled “Motion to Amend

and/or Vacate Order of Dismissal as to Defendant, Louis Montesi.” Though this motion was initially denied

by the trial court by order dated October 15, 1997, the matter was again heard by the trial court on November

7, 1997, and the trial court entered an order setting aside both the October 15, 1997 order and the August 4,

1997 order. In this order, which was entered on November 21, 1997, the trial court provided, “the plaintiff . .

. is hereby granted thirty (30) days from November 7, 1997 to substitute a party defendant for the defendant,
3

Louis Montesi.” On December 5, 1997, Plaintiff filed a motion to amend her Complaint, seeking “leave to

name Deborah Henderson, Administrator Ad Litem of the estate of Louis Montesi, deceased, as substitute

Defendant for said decedent.” On December 11, 1997, the trial court found that Plaintiff “failed to substitute

a party defendant for the defendant Louis Montesi, in conformity with the Order . . . entered November 21,

1997.” Therefore, the trial court dismissed Plaintiff’s Complaint as against Montesi. On January 9, 1998,

Plaintiff filed a Notice of Appeal, seeking to appeal the December 11, 1997 order. 

Additionally, Bright Glade filed a motion for summary judgment on November 7, 1997. Tihs motion

is still pending in the trial court.

On appeal, Plaintiff states the following issues:

1. Whether it was error for the lower court to [enter the] order of dismissal

without notice to Plaintiff and [an] opportunity to be heard?

2. Whether it was error for the lower court to dismiss [the] Complaint as to

Louis Montesi pursuant to Rule 25 of the Tennessee Rules of Civil

Procedure?

We pretermit these issues, however, because Plaintiff has appealed from an order that adjudicates fewer than

all the claims or the rights and liabilities of fewer than all the parties. Tenn. R. App. P. 3(a). Further, the trial

court did not direct the entry of a final judgment upon an express determination that there is no just reason for

delay and upon an express direction for the entry of judgment. Tenn. R. Civ. P. 54.02. Therefore, the order

appealed from is not appealable as of right and is subject to revision before the entry of a final judgment.

Tenn. R. App. P. 3(a).

Accordingly, we hereby dismiss the subject appeal. Costs of this appeal are taxed to Plaintiff, for

which execution may issue if necessary.

 

HIGHERS, J.

CONCUR:

 
4

FARMER, J.

 

LILLARD, J.