JULIA PUTNAM ET AL.
JOHN W. LEACH ADMINISTRATOR AD LITEM OF THE ESTATE OF BRYANE R. LITSINBERGER
November 15, 2017
from the Circuit Court for Shelby County No. CT-000415-16
Mary L. Wagner, Judge
a personal injury case involving a motor vehicle accident.
The alleged tortfeasor died subsequent to the injury-causing
accident. The plaintiffs were unaware of the decedent's
death and commenced this suit naming him as a defendant. Some
months later, after learning of the decedent's death, the
plaintiffs sought the appointment of an administrator ad
litem in the Probate Court and amended their complaint naming
the administrator ad litem as a party as required by the
survival statute. The defendant filed a motion to dismiss
arguing that the plaintiffs' complaint was not properly
filed until after the expiration of the applicable statute of
limitations. The trial court agreed and granted the
defendant's motion to dismiss. The plaintiffs timely
appealed. Having concluded that the plaintiffs did not
properly commence their lawsuit within the time afforded by
the applicable statute of limitations, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
P. Chiozza, Jr., and Christopher W. Lewis, Memphis,
Tennessee, and Steven R. Walker, Oakland, Tennessee, for the
appellants, Julia Putnam and Charles Putnam.
Bradford D. Box, W. Christopher Frulla, and Dale Conder, Jr.,
Memphis, Tennessee, for the appellee, John W. Leach
Administrator Ad Litem of the Estate of Bryane R.
B. Goldin, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S., and Joe G. Riley, Sp. J.,
B. GOLDIN, JUDGE
AND PROCEDURAL HISTORY
appeal arises from the trial court's grant of a motion to
dismiss, based upon its conclusion that the one-year statute
of limitations in this personal injury case expired before
the suit was properly commenced against the decedent/alleged
tortfeasor's personal representative. The underlying
facts are as follows.
February 2, 2015, Julia Putnam and Bryane Litsinberger were
involved in a motor vehicle accident, allegedly caused by the
negligence of Mr. Litsinberger. On January 4, 2016, Mr.
Litsinberger died. On February 2, 2016, unaware of Mr.
Litsinberger's death, Ms. Putnam and her husband Charles
Putnam (together, "Appellants") filed a Complaint
against Mr. Litsinberger in connection with the accident.
months after filing their original Complaint, Appellants
became aware that Mr. Litsinberger had died prior to the date
of the filing of the Complaint. After learning of the death and
that no estate had been opened for Mr. Litsinberger,
Appellants petitioned the probate court to appoint an
administrator ad litem to receive process. On October 21,
2016, the probate court appointed attorney John W. Leach as
administrator ad litem for the estate of Mr. Litsinberger.
October 31, 2016, the Appellants filed an "Amended
Complaint" naming John W. Leach, administrator ad litem
of the estate of Bryane R. Litsinberger ("Appellee,
" or "Defendant") as the defendant. On
December 13, 2016, the "Defendant's Motion to
Dismiss" was filed by the Estate of Bryane R.
Litsinberger pursuant to Tennessee Rule of Civil Procedure
12.02(6), averring that the action was not properly commenced
within the applicable statute of limitations period. On
February 7, 2017, Appellants filed their response opposing
Appellee's motion to dismiss.
a hearing, by order of March 10, 2017, the trial court
granted the Appellee's motion to dismiss. The trial court
explained its reasoning as follows:
[T]he Court finds that Bryane R. Litsinberger died prior to
Plaintiffs filing suit, and the Plaintiffs failed to file
suit against the Administrator Ad Litem of The Estate of
Bryane R. Litsinberger within the time prescribed by
Tennessee Code Annotated §§ 28-1-110 and 20-5-103.
The Court found that pursuant to [Tennessee Code Annotated]
§ 28-1-110, the one-year statute of limitations
applicable to this suit was tolled for a period of six months
following the death of Bryane R. Litsinberger. Following the
six month tolling period, the statute of limitations
recommenced, and Plaintiffs failed to file suit against the
Administrator Ad Litem of The Estate of Bryane R.
Litsinberger prior to the expiration of the statute of
Appellants raise the following issues for our review, which
we restate as follows:
1. Whether the trial court erred in granting Appellee's
motion to dismiss based upon the expiration of the statute of
limitations when Appellants were allegedly not aware of the