Session February 8, 2017
by Permission from the Court of Appeals Circuit Court for
Houston County No. 1368 Robert E. Burch, Judge.
granted permission for this appeal to determine whether a
surviving spouse who files a wrongful death lawsuit is acting
as a legal representative of the decedent and whether a
wrongful death lawsuit filed pro se by the surviving
spouse is void ab initio based on the spouse's
pro se status. In this case, the decedent's
surviving spouse filed a pro se wrongful death
health care liability lawsuit shortly before the one-year
statute of limitations lapsed. After expiration of the
limitations period, the spouse retained an attorney and filed
an amended complaint. In the ensuing discovery, the
defendants learned that the decedent had two daughters, both
of whom were statutory beneficiaries in the wrongful death
action. The defendants filed motions for summary judgment.
They argued that the spouse's initial pro se
complaint was filed in a representative capacity on behalf of
the decedent and the other statutory beneficiaries and that
it was, therefore, void ab initio; thus, the filing
of the amended complaint could not relate back to the date of
the initial complaint, and the lawsuit was time-barred. The
trial court denied the summary judgment motions and permitted
the amended complaint to relate back to the date of the
initial pro se complaint. It then conducted a jury
trial; the jury found both defendants liable and awarded
damages. The defendant hospital appealed the denial of
summary judgment. Adopting the defendant's argument, the
Court of Appeals reversed. The plaintiff now appeals. Under
the plain language of Tennessee's wrongful death
statutes, the decedent's right of action "pass[es]
to" the surviving spouse upon the decedent's death,
and the surviving spouse asserts the right of action for the
benefit of himself and other beneficiaries. Tenn. Code Ann.
§ 20-5-106(a) (2009 & Supp. 2016). Consequently, we
hold that the surviving spouse did not file the initial
pro se complaint as the legal representative of
either the decedent or the decedent's estate. As we
construe our wrongful death statutes, in filing the pro
se complaint, the surviving spouse was acting to a large
extent on his own behalf and for his own benefit pursuant to
his right of self-representation. Under the facts of this
case, we hold that the initial pro se complaint was
not void ab initio, it served to toll the statute of
limitations, and the trial court did not err in allowing the
filing of the amended complaint to relate back to the date of
the initial complaint. Accordingly, we reverse the decision
of the Court of Appeals, affirm the trial court's denial
of summary judgment, and remand to the Court of Appeals for
consideration of the other issues that were properly raised
on appeal but not addressed.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Appeals Reversed; Case Remanded to the Court of
N. Elbert, James G. Thomas, and Jeffrey A. Zager, Nashville,
Tennessee, for the appellant, Linda Beard.
L. Johnson, Nashville, and James T. McColgan, III, and Sherry
Fernandez, Cordova, Tennessee, for the appellee, Trinity
Kirby, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G.
Lee, and Roger A. Page, JJ., joined.
and Procedural Background
September 13, 2004, Ruth Hartley ("the decedent")
was admitted to Defendant/Appellee Trinity Hospital
("Trinity") in Erin, Houston County, Tennessee, for
elective colon surgery. The surgery was performed by
Defendant James William Branson, M.D. ("Dr.
the surgery, the decedent developed medical complications. On
September 28, 2004, after the decedent had endured several
days of vomiting, diarrhea, and piercing abdominal pain, she
was transferred by helicopter to Centennial Medical Center in
Nashville, Tennessee, for emergency surgery. By the time she
arrived, she was already in septic shock. The next day,
during the surgery, the decedent went into cardiac arrest and
September 12, 2005, with the statute of limitations looming,
the decedent's surviving spouse, Denver Hartley, filed a
pro se wrongful death health care liability lawsuit
against Trinity and Dr. Branson (collectively,
"defendants"). See Tenn. Code Ann. §
29-26-101, et seq. (Tennessee Health Care Liability
Act). The pro se complaint listed Mr. Hartley as the
plaintiff, "Individually and as the Surviving Spouse of
Ruth Hartley, Deceased." Mr. Hartley signed it "as
the Surviving Spouse of Ruth Hartley." Although the
complaint was actually prepared by an attorney who was
informally assisting Mr. Hartley, it was signed only by Mr.
Hartley and was not signed by an attorney.
complaint, Mr. Hartley alleged inter alia that
Trinity and Dr. Branson negligently failed to diagnose and
treat the decedent's condition and that their breach of
the standard of care caused his wife's death. The
complaint included a request for damages on behalf of Mr.
Hartley only; it did not mention any other surviving heirs of
the decedent. It sought damages for the decedent's pain
and suffering, the economic value of the decedent's life,
Mr. Hartley's loss of consortium, funeral expenses, and
other damages resulting from the defendants' negligence.
See Tenn. Code Ann. § 20-5-113 (2009).
November 2005, the defendants filed separate motions to
dismiss Mr. Hartley's complaint pursuant to Rule 12.02 of
the Tennessee Rules of Civil Procedure. Both motions
asserted that Mr. Hartley was not permitted to file this
lawsuit pro se. Mr. Hartley's complaint, they
claimed, was filed in a representative capacity on behalf of
the decedent and, as a non-attorney, Mr. Hartley could not
file a lawsuit for another in a representative capacity. The
defendants contended that the filing of the complaint
constituted the unauthorized practice of law by Mr. Hartley.
As such, they argued, the pro se complaint was a
nullity and therefore the trial court did not have subject
matter jurisdiction over the case.
both motions to dismiss were filed but before they were
argued, Mr. Hartley formally retained an attorney, Philip N.
Elbert, to represent him in this lawsuit. On February 15,
2006, Mr. Elbert filed a notice of appearance as legal
counsel for Mr. Hartley.
February 27, 2006, Mr. Hartley, through counsel, filed a
response opposing the defendants' motions to dismiss. The
response explained that Mr. Hartley contacted Mr. Elbert
shortly before the one-year anniversary of his wife's
death, but Mr. Elbert was unable to fully investigate the
claim consistent with his ethical obligation before
expiration of the limitations period. Consequently, Mr.
Elbert assisted Mr. Hartley with the preparation and filing
of his pro se complaint in order to prevent the
cause of action from becoming time-barred while Mr. Elbert
did his investigation of the claims. As to the motions to
dismiss, Mr. Hartley argued in his response that they should
be denied because, under Tennessee's wrongful death
statutes, the decedent's cause of action passed to Mr.
Hartley when she died. See Tenn. Code Ann. §
20-5-106(a) (2009 & Supp. 2016). Because the cause of
action belonged to Mr. Hartley, the filing of the pro
se complaint did not constitute the unauthorized
practice of law. Mr. Hartley's response further
maintained that, even if the appearance of counsel was deemed
necessary, the formal notice of the appearance of Mr. Elbert
as counsel cured any error and should relate back to the date
of the initial complaint.
March 2, 2006, Mr. Hartley filed an amended complaint signed
by Mr. Elbert as Mr. Hartley's attorney of record. He
also filed a second memorandum in opposition to Dr.
Branson's motion to dismiss.
thereafter, the trial court held a hearing on the
defendants' motions to dismiss. On July 3, 2006, the trial
court entered an order denying both defendants' motions.
In the order, the trial court held that Mr. Hartley was
permitted to file the wrongful death action pro se
because, under section 20-5-106, the decedent's cause of
action passed to Mr. Hartley as the surviving spouse, and the
decedent had no other statutory beneficiaries. See
Tenn. Code Ann. § 20-5-106(a). The trial court reasoned
that, "[w]hen there are statutory beneficiaries, the
surviving spouse will be proceeding in a representative
capacity on behalf of himself and any statutory
beneficiaries, " but because Mr. Hartley was the only
beneficiary, he was representing his own interests and not
proceeding in a representative capacity. Therefore, it held,
Mr. Hartley was permitted to represent himself in the
wrongful death action, and his initial complaint was not a
nullity. Discovery ensued.
course of discovery, it was revealed that the decedent and
Mr. Hartley had two adult daughters, Linda Beard and Tammy
Veach. This new information prompted the defendants to file
motions for summary judgment. The defendants asserted that,
because Mr. Hartley was not the decedent's sole statutory
beneficiary, he was asserting a wrongful death claim in a
representative capacity on behalf of the other statutory
beneficiaries. As Mr. Hartley is not an attorney, the
defendants argued, he was not permitted to represent the
other beneficiaries. They again claimed that the initial
complaint was a nullity and its filing did not toll the
statute of limitations.
the summary judgment motions were pending, Mr. Hartley,
through counsel, filed a motion to amend the complaint
"[o]ut of an abundance of caution" to add himself
as a party plaintiff in a representative capacity on behalf
of the decedent's children, should they elect to claim an
interest in the lawsuit in the future. Both of the defendants
responded by arguing that the motion to amend should not be
granted because the original complaint was a nullity, so
there was nothing to amend.
November 2006, the trial court held a hearing on the motions
for summary judgment. In March 2007, the trial court entered an
order denying the defendants' motions. It held that the
initial pro se complaint was "partially
proper" because, in addition to pursuing the claims of
the other statutory beneficiaries, Mr. Hartley was pursuing
his own claim under the wrongful death statutes:
If a plaintiff is acting in a purely representative capacity,
the filing of a complaint is a nullity. . . . In the case
sub judice the plaintiff is pursuing his own claim
and that of the children of the deceased. If he were pursuing
his own claim, he would unquestionably have the right to
proceed pro se. If he were pursuing only the claim
of the children, he would not. Since the action necessarily
contains both types of claims, it presents in the same action
a claim which the court will entertain and one which it will
The action, as filed, was partially proper. . . . In a
wrongful death action, there is but one cause of action
embracing the first and second classes of damages
contemplated by T.C.A. § 20-5-113 . . . . The complaint
stated a cause of action which the courts will recognize. One
of the elements of damages in the cause of action contained
in the complaint was improper. This may [be] cured by a
proper amendment. The filing of the complaint therefore
presented a claim which is sufficient to toll the statute of
(Citations omitted). The trial court commented that it viewed
this situation as similar to one in which a wrongful death
claim is filed by an improper party. See generally
Chapman v. King, 572 S.W.2d 925 (Tenn. 1978). In such a
case, it noted, a court should liberally permit the addition
or substitution of the proper party plaintiff pursuant to
Rules 15.03 and 17.01 of the Tennessee Rules of Civil
Procedure, even beyond the expiration of the statute of
limitations. Accordingly, the trial court held that, even
though Mr. Hartley's pro se pursuit of claims on
behalf of other beneficiaries was improper, this defect could
be "cured by proper amendment." Therefore, the
court held that the amended complaint would relate back to
the filing date of the original pro se complaint. On
that basis, it denied the defendants' motions for summary
December 2008, Mr. Hartley passed away. A suggestion of death
was filed, and the daughter of Mr. Hartley and the decedent,
Appellant Linda Beard, was substituted as plaintiff pursuant
to Rule 25.01 of the Tennessee Rules of Civil Procedure by
agreed order. The other daughter of the decedent and Mr.
Hartley, Tammy Veach, was not added as a plaintiff.
trial court conducted a jury trial in this case, on May 28
through June 13, 2014. The jury returned a verdict in favor of
the plaintiff Ms. Beard and awarded total damages of $750,
000: $500, 000 for the physical pain and mental suffering of
the decedent, $200, 000 for Mr. Hartley's loss of
consortium, and $50, 000 for the children's loss of
consortium. Liability was assessed 50% against Dr. Branson,
40% against Trinity, and 10% against non-party radiologist
Stanley Anderson, M.D. Trinity was deemed vicariously liable
for the conduct of Dr. Anderson because he was an agent of
trial court entered a final judgment on the verdict, in which
it awarded Ms. Beard damages against Dr. Branson in the
amount of $300, 000 and damages against Trinity in the amount
of $450, 000. The trial court also awarded Ms. Beard
discretionary costs in the amount of $68, 945.85. Trinity
filed a motion for a directed verdict or, alternatively, for
a new trial, which the trial court denied. Trinity appealed,
but Dr. Branson did not.
Court of Appeals reversed the trial court's decision. It
held that the trial court erred in declining to grant summary
judgment in favor of Trinity based on the expiration of the
statute of limitations. Beard v. Branson, No.
M2014-01770-COA-R3-CV, 2016 WL 1292904, at *8 (Tenn. Ct. App.
Mar. 31, 2016), perm. app. granted (Tenn. Sept. 22,
2016). The Court of Appeals reasoned that Mr. Hartley
"never had 'his own individual claim' to assert
in this case" because Mr. Hartley and the other
survivors "were only permitted to assert the cause of
action in a representative capacity on behalf of the
decedent." Id. at *6 (quoting Ki v.
State, 78 S.W.3d 876, 880 (Tenn. 2002)). Because
"litigants may not appear in a representative capacity
on behalf of others without an attorney, " the
intermediate appellate court held, the filing of the initial
pro se complaint on behalf of the decedent
constituted the unauthorized practice of law. Id. On
this basis, it held that Mr. Hartley's initial complaint
was a nullity and must be "treated as if it never
existed." Id. at *8. By the time a proper
complaint was filed by counsel of record, the appellate court
stated, the statute of limitations on the wrongful death
claim had expired. Id. at *7. It held that the
amended complaint did not relate back to the date of the
initial pro se complaint under Rule 15.03 of the
Tennessee Rules of Civil Procedure because the initial
complaint was a nullity and therefore did not operate to toll
the statute of limitations. Id. at *7-8.
Accordingly, the Court of Appeals reversed the trial
court's decision with respect to Trinity and remanded for
the trial court to dismiss all claims against that defendant.
Id. at *8.
April 26, 2016, the Court of Appeals issued a separate
decision denying Ms. Beard's petition to rehear. In doing
so, the Court of Appeals reaffirmed its holding that the
initial pro se complaint filed by Mr. Hartley was
void, not voidable, and consequently it did not toll the
statute of limitations. Beard v. Branson, No.
M2014-01770-COA-R3-CV, 2015 WL 1705290, at *1-2 (Tenn. Ct.
App. Apr. 26, 2016) ("[W]e respectfully disagree with
the notion that a void complaint, one that is a nullity, can
be remedied."), perm. app. granted (Tenn. Sept.
Court granted Ms. Beard's application for permission to
appeal, the plaintiff asks us to review the Court of
Appeals' decision to reverse the trial court's denial
of Trinity's motion for summary judgment. We review a
lower court's decision on a summary judgment motion de
novo with no presumption of correctness. Tatham v.
Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 748
(Tenn. 2015) (citing Parker v. Holiday Hospitality
Franchising, Inc., 446 S.W.3d 341, 346 (Tenn. 2014)).
Summary judgment is proper where "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Tenn. R. Civ. P. 56.04. Our standard of review
requires "a fresh determination of whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied." Rye v. Women's
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn.
2015), cert. denied, 136 S.Ct. 2452 (2016).
case, the legal questions presented require us to interpret
statutes. "Statutory interpretation, of course, presents
a question of law and our review is de novo with no
presumption of correctness." Kiser v. Wolfe,
353 S.W.3d 741, 745 (Tenn. 2011) (citing Carter ...