FILED

July 9, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

SHIRLEY JEAN McCRACKEN )

and ALAN McCRACKEN, )

)

Plaintiffs/Appellants, )

) Williamson Circuit

) No. 94372

VS. )

) Appeal No.

) 01A01-9511-CV-00531

BRENTWOOD UNITED )

METHODIST CHURCH, )

)

Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT FOR WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

THE HONORABLE CORNELIA A. CLARK, JUDGE

For the Plaintiffs/Appellants: For the Defendant/Appellee:

Stanley M. Chernau Frank Thomas

Linda F. Burnsed Leitner, Warner, Moffitt, Williams,

Chernau, Chaffin & Burnsed Dooley & Napolitan

Nashville, Tennessee Nashville, Tennessee

AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves a woman who broke both ankles in a fall at church.

The woman and her husband filed suit in the Circuit Court for Williamson County

against the church and others. The trial court granted the church’s motion for

summary judgment based on the statute of limitations and the joint enterprise rule.

The woman and her husband perfected this appeal after obtaining post-judgment

relief from an inappropriate interlocutory appeal. We have determined that the

trial court properly granted the post-judgment relief but erred in summarily

dismissing the complaint. 

I.

Shirley Jean and Alan McCracken are members of the Brentwood United

Methodist Church. On June 20, 1993, less than one month after joining the

church, Ms. McCracken fell as she was entering the church’s new sanctuary from

an older portion of the building containing the church’s classrooms. Persons

entering the sanctuary at that location had to climb a flight of stairs and then pass

through a doorway where there was a 23⁄4 inch change in the elevation of the floor.

Ms. McCracken stumbled and fell when she caught one of her shoes on the

threshold, breaking both ankles and injuring her shoulder.

Ms. McCracken’s ankle injuries required several surgeries, and she was

required to undergo rehabilitation for nearly one year before regaining reasonable

mobility. The McCrackens were reluctant to assert a claim against the church;

however, the church’s business administrator and senior pastor assured them that

the church carried adequate insurance for injuries on church property.

Accordingly, the McCrackens submitted a claim to the church’s insurance

company and received $5,000 to help defray some of their medical expenses.

The McCrackens retained a lawyer who continued settlement discussions

with the church’s insurance company. When it became evident that a satisfactory

settlement was not forthcoming, the McCrackens filed suit on June 17, 1994 -

three days before the statute of limitations would have run on their claims. The

complaint named as defendants the Brentwood United Methodist Church
1The McCrackens filed an amended complaint on June 20, 1994, adding an engineering

firm as another defendant.

2The church is an unincorporated, not-for-profit, religious association; while the

foundation is a separate corporation that administers the church’s endowment. The foundation

owns no property.

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Foundation, Inc. (the "foundation") and the architect and construction company

that designed and constructed the sanctuary.1

The church first learned of the McCrackens’ lawsuit on June 20, 1994 when

a Nashville newspaper reporter telephoned the senior pastor to get a comment

about the case. The summons and the McCrackens’ original complaint were

served on the church’s financial administrator on June 28, 1994. The

administrator recognized immediately that the McCrackens had sued the

foundation rather than the Brentwood United Methodist Church (the “church”).2

In his June 28, 1994 letter transmitting the complaint and summons to the church’s

insurance company, the administrator stated: “The plaintiff has sued the wrong

entity. Would this present grounds for the dismissal of this case?”

On July 28, 1994, the foundation moved for summary judgment on the

grounds that it owned no property and that it was not involved with the

construction of the new church building. Approximately ten days later, the

McCrackens requested permission to file a second amended complaint for the

purpose of adding the church as a defendant. The trial court granted the motion,

and the McCrackens filed their second amended complaint on September 22,

1994. One week later, the church moved for summary judgment based on the oneyear statute of limitations in Tenn. Code Ann. § 28-3-104(a) (Supp. 1996). 

The trial court filed a memorandum opinion on February 1, 1995, granting

the church’s motion for summary judgment on two grounds. First, the trial court

determined that the McCrackens could not take advantage of the relation back

provisions in Tenn. R. Civ. P. 15.03 and, therefore, that their claims against the

church in their second amended complaint were time-barred. Second, the trial

court, relying on the joint enterprise defense, held that the McCrackens could not

sue the church because it was an unincorporated association of which they were
3The Tennessee Rules of Civil Procedure do not authorize “motions to reconsider.” We

construe this motion to be a motion to alter or amend pursuant to Tenn. R. Civ. P. 59.04.

4The request for an interlocutory appeal was unnecessary because the trial court had

designated its February 13, 1995 order as final in accordance with Tenn. R. Civ. P. 54.02. The

McCrackens were entitled to an appeal as of right from this order. 

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members. The February 13, 1995 summary judgment order stated specifically that

the order constituted a final judgment under Tenn. R. Civ. P. 54.02 on all claims

against the church. 

The McCrackens requested the trial court to “reconsider” its decision to

grant the summary judgment3

 and, in the alternative, to grant them permission to

pursue an interlocutory appeal.4

 On April 20, 1995, the trial court denied the

motion to reconsider but granted the McCrackens permission to pursue an

interlocutory appeal. This court denied the McCrackens’ application for an

interlocutory appeal on May 31, 1995, because they were entitled to an appeal as

of right. McCracken v. Brentwood United Methodist Church, App. No. 01A01-

9505-CV-00204 (Tenn. Ct. App. May 31, 1995). 

On June 13, 1995, the McCrackens requested this court to grant relief from

their failure to file a timely notice of appeal from the trial court’s April 20, 1995

order. On June 22, 1995, we denied the motion but suggested that it would be

appropriate to seek this relief from the trial court. McCracken v. Brentwood

United MethodistChurch, App. No. 01A01-9505-CV-00204 (Tenn. Ct. App. June

21, 1995). On July 7, 1995, the trial court vacated and re-entered the portion of

its April 20, 1995 order denying the McCrackens’ motion to reconsider.

Thereafter, the McCrackens filed a notice of appeal on July 21, 1995. 

II. 

TENN. R. CIV. P. 60.02 RELIEF FROM JUDGMENT

We turn first to the church’s assertion that the McCrackens are not entitled

to Tenn. R. Civ. P. 60.02 relief from their failure to file a notice of appeal within

thirty days following the entry of the trial court’s April 20, 1995 order denying

their motion to reconsider the summary judgment. The church asserts that the
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McCrackens’ erroneous pursuit of an interlocutory appeal is not the type of

mistake, inadvertence, or excusable neglect that warrants extraordinary relief from

the judgment. We disagree.

The filing requirements for notices of appeal in civil cases are mandatory

and jurisdictional. Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App.

1994); John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422, 424

(Tenn. Ct. App. 1983). While neither the trial nor the appellate courts may waive

or expand the time for filing a notice of appeal, First Nat’l Bank v. Goss, 912

S.W.2d 147, 148 (Tenn. Ct. App. 1995), a trial court may grant an appellant relief

from an untimely notice of appeal in unusual or compelling circumstances. See

Moody v. Moody, 681 S.W.2d 545, 546 (Tenn. 1984); Jerkins v. McKinney, 533

S.W.2d 275, 280 (Tenn. 1976); Jefferson v. Pneumo Servs. Corp., 699 S.W.2d

181, 184-85 (Tenn. Ct. App. 1985). This relief generally takes the form of

vacating and re-entering the final order.

Parties seeking Tenn. R. Civ. P. 60.02 relief must substantiate their request

by clear and convincing evidence. Davidson v. Davidson, 916 S.W.2d 918, 923

(Tenn. Ct. App. 1995); Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App.

1990). These requests are addressed to the trial court’s discretion, and thus

appellate courts review decisions regarding Tenn. R. Civ. P. 60.02 relief using the

abuse of discretion standard. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97

(Tenn. 1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991); Day

v. Day, 931 S.W.2d 936, 939 (Tenn. Ct. App. 1996); Marr v. Montgomery

Elevator Co., 922 S.W.2d 526, 528 (Tenn. Ct. App. 1995); John Barb, Inc. v.

Underwriters at Lloyds of London, 653 S.W.2d at 424.

This case presents one of the rare circumstances warranting Tenn. R. Civ.

P. 60.02 relief. The McCrackens’ failure to file a timely notice of appeal

following the April 20, 1995 order was not just a product of their lawyers’ failure

to appreciate the significance of the Tenn. R. Civ. P. 54.02 designation in the
5The McCrackens would not have been entitled to Tenn. R. Civ. P. 60.02 relief had their

predicament been caused by their lawyers’ ignorance or mistaken understanding of the

procedural rules. Bivins v. Hospital Corp. of Am., 910 S.W.2d 441, 446 (Tenn. Ct. App. 1995);

Algee v. State Farm Ins. Co., 890 S.W.2d 445, 449 (Tenn. Ct. App. 1994); Kilby v. Sivley, 745

S.W.2d 284, 287 (Tenn. Ct. App. 1987). 

6Our May 31, 1995 order denying the McCrackens’ application for an interlocutory

appeal overlooked the fact that the trial court’s April 20, 1995 order disposed of the

McCrackens’ motion to reconsider and that the McCrackens had not filed a notice of appeal.

These oversights did not affect the McCrackens’ ability to file a timely notice of appeal from the

April 20, 1995 order because our order was not entered until after the expiration of the time for

filing the notice of appeal.

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February 13, 1995 order. 5

 It was also caused by the trial court’s decision to grant

them an interlocutory appeal even though the February 13, 1995 order was final.

The procedural posture of the appeal would have been clear had the trial court

denied the McCrackens’ application for interlocutory appeal on the ground that

they were entitled to appeal as of right. However, the order granting the

interlocutory appeal could have induced the McCrackens’ lawyer to conclude that

filing a notice of appeal was no longer necessary. Accordingly, we find that the

trial court correctly granted the McCrackens Tenn. R. Civ. P. 60.02 relief to

enable them to file a timely notice of appeal from its April 20, 1995 order.6

III.

RELATION BACK UNDER TENN. R. CIV. P. 15.03

The McCrackens take issue with the trial court’s decision that they could

not take advantage of Tenn. R. Civ. P. 15.03's relation back provision because the

church did not have notice of their suit before the statute of limitations expired.

They insist that the church received timely notice of the suit when its senior pastor

received a telephone call from a newspaper reporter requesting comment about

their suit. While this notice was extremely informal, we find that it satisfies Tenn.

R. Civ. P. 15.03's requirements.

Plaintiffs who file their lawsuit at or near the end of the statute of

limitations period face a difficult predicament if they make a mistake regarding the

name of the defendant. To avoid the statute of limitations extinguishing their

claim against misnamed defendants, Tenn. R. Civ. P. 15.03 permits these plaintiffs
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to amend their complaint to correct the misnomer and provides that the

amendment will relate back to the filing of the original complaint under certain

conditions.

At all times pertinent to this case, Tenn. R. Civ. P. 15.03 provided: 

Whenever the claim or defense asserted in the

amended pleadings arose out of the conduct, transaction

or occurrence set forth or attempted to be set forth in

the original pleading, the amendment relates back to the

date of the original pleading. An amendment changing

the party against whom a claim is asserted relates back

if the foregoing provision is satisfied and if, within the

period provided by law for commencing the action

against him, the party to be brought in by amendment

(1) has received such notice of the institution of the

action that he will not be prejudiced in maintaining his

defense on the merits, and (2) knew or should have

known that, but for a misnomer or other similar mistake

concerning the identity of the proper party, the action

would have been brought against him. Except as above

specified, nothing in this rule shall be construed to

extend any period of limitations governing the time in

which any action may be brought.

Thus, the relation back feature of Tenn. R. Civ. P. 15.03 works only when the

following conditions exist: (1) the claim must arise out of the same conduct,

transaction, or occurrence involved in the original complaint; (2) the party to be

brought in by the amendment must not be prejudiced in maintaining its defense,

and (3) the party to be brought in by amendment either knew or should have

known it would have been sued had it not been for the misnomer or similar

mistake. Lease v. Tipton, 722 S.W.2d 379, 380 (Tenn. 1986); Turner v. Aldor Co.

of Nashville, Inc., 827 S.W.2d 318, 321-22 (Tenn. Ct. App. 1991). 

Timely notice is the linchpin of Tenn. R. Civ. P. 15.03. Floyd v. Rentrop,

675 S.W.2d 165, 168 (Tenn. 1984). The cases construing Tenn. R. Civ. P. 15.03

have focused on the content of the notice, the time within which the notice must

be received, and the persons who must receive the notice. Accordingly, the courts

have held that the notice must be notice of the lawsuit rather than merely notice

of the underlying injury. Smith v. Southeastern Properties, Ltd., 776 S.W.2d 106,
7Tenn. R. Civ. P. 15.03 was amended in 1995 to extend the notice period to “120 days

after commencement of the action.” The effect of this amendment is the same as the 1991

amendment to Fed. R. Civ. P. 15(c)(3) which was to mitigate the harsh result of Schiavone v.

Fortune, 477 U.S. 21, 30, 106 S. Ct. 2379, 2384 (1986). The amendment cannot be applied

retroactively to complaints filed before its July 1, 1995 effective date. 

8But see Bell v. P & B Mfg. Corp., 107 F.R.D. 371, 374 (W.D. Tenn. 1985).

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109 (Tenn. Ct. App. 1989). The notice must also be received before the running

of the applicable statute of limitations.7 Duke v. Replogle Enters., 891 S.W.2d

205, 206-07 (Tenn. 1994); Allen v. River Edge Motor Lodge, 861 S.W.2d 364, 365

(Tenn. Ct. App. 1993). Finally, in addition to notifying the defendant, Tenn. R.

Civ. P. 15.03 permits notifying the defendant’s attorney but not the employees of

the defendant’s insurance company. Braswell v. Carothers, 863 S.W.2d 722, 726

(Tenn. Ct. App. 1993) (holding that notice to the defendant’s lawyer satisfies

Tenn. R. Civ. P. 15.03); Smith v. Southeastern Properties, Ltd., 776 S.W.2d at 110

(holding that notice to adjustors employed by the defendant’s insurance company

does not satisfy Tenn. R. Civ. P. 15.03).8

The courts have not definitively decided what type or form of notice

satisfies Tenn. R. Civ. P. 15.03's requirements. The rule requires notice, not

service. See Montgomery v. United State Postal Serv., 867 F.2d 900, 903 (5th Cir.

1989). Since Tenn. R. Civ. P. 15.03 must be construed liberally to enable courts

to hear and decide cases on their merits, Floyd v. Rentrop, 675 S.W.2d at 168;

Osborne Enters., Inc. v. City of Chattanooga, 561 S.W.2d 160, 163 (Tenn. Ct.

App. 1977), the current prevailing view is that the notice required by Tenn. R. Civ.

P. 15.03 may be either formal or informal. See Korn v. Royal Caribbean Cruise

Line, Inc., 724 F.2d 1397, 1399 (9th Cir. 1984); Kinally v. Bell of Pennsylvania,

748 F. Supp. 1136, 1141 (E.D. Pa. 1990); 3 James W. Moore, Moore’s Federal

Practice ¶ 15.15[4] (2d ed. 1996); 6A Charles A. Wright, et al., Federal Practice

and Procedure § 1498, at 116 (2d ed. 1990). 

Tenn. R. Civ. P. 15.03 requires more than mere awareness that a suit has

been filed. See Keller v. Prince George’s County, 923 F.2d 30, 33-34 (4th Cir.

1991). Unofficial, informal notice that a lawsuit has been filed coupled with

knowledge of the facts on which the lawsuit is based may suffice as long as the
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rule’s other requirements are satisfied. Parties seeking to invoke the relation back

provisions of Tenn. R. Civ. P. 15.03 must also demonstrate that the party to be

added by amendment will not be prejudiced in maintaining its defense and that the

party knew or should have known that it would have been sued had it not been for

the misnomer or other similar mistake. 

The church concedes that the telephone conversation between its senior

pastor and the newspaper reporter occurred before the statute of limitations ran on

the McCrackens’ claim. Nonetheless, it asserts that the conversation does not

qualify as notice under Tenn. R. Civ. P. 15.03 because the senior pastor did not

have authority to receive notices of this sort and because the substance of the

conversation was too vague. Both assertions are not well taken. 

Tenn. R. Civ. P. 15.03 envisions that the newly added defendant must

receive actual notice of the lawsuit. Accordingly, an individual defendant or the

defendant’s attorney must receive the notice. When the defendant is an

organization, the notice may be given to any person within the organization with

apparent authority to receive the notice. See Garland v. Seaboard Coastline R.R.,

658 S.W.2d 528, 530-31 (Tenn. 1983) (holding that service of process may be

made on a person so integrated in the organization that he or she will know what

to do with the papers). The church’s senior pastor plays a significant role in the

secular and religious affairs of the church. Accordingly, it is reasonable for us to

infer that he is one of the persons within the organization who would know what

to do with notice that a lawsuit has been filed against the church.

Tenn. R. Civ. P. 15.03 does not require the McCrackens to serve the church

with process or to provid the church with a detailed summary of the allegations in

their complaint. The senior pastor conceded that he was aware that Ms.

McCracken had fallen at the church, and he specifically recalled that the

newspaper reporter asked questions relating to the newly filed lawsuit. Even

though the telephone call was not in writing, it provided the senior pastor with

actual notice that the McCrackens had filed a lawsuit against the church seeking

damages for the injuries stemming from Ms. McCracken’s fall. 
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The evidentiary materials submitted in support of and in opposition to the

summary judgment motion contain the following undisputed facts. The church,

through its senior pastor, received actual notice before the statute of limitations

ran that the McCrackens had filed a lawsuit based on Ms. McCracken’s fall at the

church. The church was not prejudiced in defending against the suit because it

knew about Ms. McCracken’s fall as soon as it happened. It also knew that its

insurer had been negotiating a settlement with the McCrackens’ lawyer for quite

some time. Finally, the church knew that the McCrackens were looking to the

church for damages and, as the business administrator’s June 28, 1994

memorandum underscores, that the McCrackens’ lawyer had mistakenly named

the foundation as a defendant rather than the church. These undisputed facts

establish all the conditions required for the operation of Tenn. R. Civ. P. 15.03's

relation back provision. 

IV.

THE JOINT ENTERPRISE DEFENSE

The McCrackens also take issue with the trial court’s dismissal of their

complaint against the church on the ground that members of an unincorporated

religious association cannot recover from the association for damages. The trial

court’s decision was fully consistent with the decisional law as it stood at the time.

See Fain v. O’Connell, No. 03A01-9403-CV-00082, 1994 WL 577404, at *1-2

(Tenn. Ct. App. Oct. 21, 1994), rev’d, 909 S.W.2d 790 (Tenn. 1995); Shropshire

v. Pure Holiness Church of God, App. No. 03A01-9101-CV-00022, 1991 WL

121460, at *2 (Tenn. Ct. App. July 10, 1991) (No Tenn. R. App. P. 11 app. filed).

However, after the trial court granted the church’s summary judgment, the

Tennessee Supreme Court announced that the joint enterprise defense was not a

blanket defense to premise liability suits brought by members of unincorporated

religious associations.

While this case was on appeal, the Tennessee Supreme Court reversed the

Eastern Section’s Fain v. O’Connell decision. Even though the court noted factual

distinctions between the Fain case and the Shropshire case, it pointed out that the
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defendant in Fain had never asserted that the plaintiff “had any responsibility for

or right of control over the maintenance of the . . . parish facilities.” Fain v.

O’Connell, 909 S.W.2d 790, 794 (Tenn. 1995). Noting that it did not favor

immunity from tort liability, the court unequivocally rejected any defense in

actions of this sort “which is based on the legal form of the organization rather

than the actual degree of fault of the member.” Fain v. O’Connell, 909 S.W.2d at

794-95.

 The Tennessee Supreme Court’s Fain decision has prompted the Western

Section of this court to reverse at least one other summary judgment based on the

Shropshire reasoning. See Viles v. Kelly, App. No. 02A01-9508-CV-00186, 1996

WL 605158, at *2 (Tenn. Ct. App. Oct. 23, 1996) (No Tenn. R. App. P. 11 app.

filed). In light of the absence of pleading or proof that the McCrackens had any

responsibility for or right to control the design, construction, or maintenance of

the premises of the Brentwood United Methodist Church, the summary judgment

in this case must meet the same fate.

V.

We affirm the trial court’s decision to grant the McCrackens post-judgment

relief pursuant to Tenn. R. Civ. P. 60.02 and reverse the summary judgment

dismissing the McCrackens’ claims against the Brentwood United Methodist

Church. We also remand the case to the trial court for further proceedings

consistent with this opinion and tax the costs of this appeal to the Brentwood

United Methodist Church for which execution, if necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

SAMUEL L. LEWIS, JUDGE 

________________________________
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BEN H. CANTRELL, JUDGE