Day on Torts
When a party failed to file a motion for substitution for more than a year after filing a notice of death, misinterpretation of the law did not constitute excusable neglect and dismissal was affirmed.
In Joshlin v. Halford, No. W2020-01643-COA-R3-CV (Tenn. Ct. App. Jan. 6, 2023), plaintiff husband and wife filed a healthcare liability action based on alleged negligence related to the treatment of husband’s broken hip. Husband died of unrelated causes in February 2014, and in March plaintiffs’ counsel filed a “Notice of Death.” In October 2014, opposing counsel sent plaintiffs’ counsel a letter stating that the case needed a new plaintiff. Eight months after this letter, defendants filed a motion to dismiss pursuant to Rule 25.01, which requires a party to file a motion for substitution within 90 days of a suggestion of death.
Plaintiff responded to the motion to dismiss three days later by filing a Motion for Substitution/Motion to Amend. Plaintiff argued that the substitution was not necessary because plaintiff wife was already a party to the matter and was also the “surviving plaintiff” under the wrongful death statutes. After several rounds of argument, the Court of Appeals eventually addressed this issue on interlocutory appeal, ruling that because plaintiff husband had died of unrelated causes, the action was eligible to be revived but did not pass automatically pursuant to the wrongful death statutes. Instead, plaintiffs needed to follow the Rule 25.01 procedure. The Court then remanded the case for the trial court to consider “whether Plaintiffs’ response to the motion to dismiss should be construed as a motion for enlargement of time, and if so, whether Plaintiff’s failure to act within the prescribed ninety-day period was the result of excusable neglect.” (internal citation omitted).
On remand, the trial court granted defendants’ motion to dismiss. The trial court ruled that plaintiffs’ response to the motion to dismiss could be considered a motion for enlargement of time under Rule 6.02, but that plaintiffs’ misinterpretation of the law could not be considered excusable neglect under Rule 6.02, and that the enlargement of time and thus motion for substitution should be denied. Because plaintiff wife’s consortium claim could not stand alone, the trial court dismissed the case in whole, and this ruling was affirmed on appeal.
Tennessee Rule of Civil Procedure 25.01 governs the substitution of a party after the party’s death, while Rule 6.02 governs motions for the enlargement of time, allowing enlargements of time after the time period has passed “where the failure to act was the result of excusable neglect.” The Court of Appeals began its analysis by looking at other cases discussing “the interplay between Rule 25.01 and Rule 6.02,” noting that Tennessee courts consider four factors when determining whether to grant an enlargement of time, including “(1) the risk of prejudice to parties opposing the late filing, (2) the delay and its potential impact on proceedings, (3) the reasons why the filings were late and whether the reasons were within the filer’s reasonable control, and (4) the good or bad faith of the filer.” (internal citations and quotation omitted). The Court also noted that “the party’s reason for failing to meet the deadline may be the single most important of the four factors,” and that previous Tennessee caselaw established that “counsel’s mistaken view of what Rule 25.01 requires does not constitute excusable neglect.” (internal citation omitted).
Applying that framework to the current case, the Court affirmed the trial court’s denial of the enlargement of time and dismissal of the case. Plaintiffs argued that the trial court erred by failing to consider all four factors, but the Court of Appeals noted that the trial court did identify all four factors, simply choosing to weigh the third factor most heavily. The Court also “undertook an independent review” of the other three factors and noted that plaintiffs did not “show[] an absence of prejudice or that the delay did not have a significant impact on the proceeding.” The Court reasoned:
[W]here an enlargement of time is requested after the original time has elapsed, Rule 6.02(2) requires the party requesting the enlargement to show that its failure was due to excusable neglect and that the opposing party has not been prejudiced. …Plaintiffs failed to show a lack of prejudice here. Unlike some cases involving a deadline missed by mere days or weeks, the late-filed motion for substitution in this case came over a year after the ninety-day window expired and only after [defendant’s] motion to dismiss. …Therefore, we reject Plaintiffs’ suggestion that consideration of the additional Williams factors leads to a finding of excusable neglect. …[T]his Court has repeatedly recognized that the party’s reason for failing to meet the deadline may be the single most important of the four facts. The reason for Plaintiffs’ late filing was her counsel’s misinterpretation of Rule 25.01, and that reason was within Plaintiffs’ reasonable control. …[C]ounsel took no action even after opposing counsel suggested the need for “a new plaintiff.” …[W]e conclude that counsel’s mistaken view of what Rule 25.01 requires does not constitute excusable neglect, and they have alleged no other facts that would support a finding of excusable neglect.
(internal citations and quotations omitted). Dismissal was thus affirmed.
This opinion was released six months after oral arguments in this case.