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Pearson v. Koczera

Court of Appeals of Tennessee, Knoxville

May 7, 2018


          Session October 17, 2017

          Appeal from the Circuit Court for Anderson County No. B2LA0060 John D. McAfee, Judge [1]

         This appeal follows prior appeals in this litigation that has spanned a decade. In this latest appeal, the trial court determined that the motions filed by the administrator ad litem for the estate of the third-party plaintiff should be denied. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          Wanda McClure Dry, Danville, Kentucky, pro se appellant, as administrator ad litem for the Estate of Laurence R. Dry.

          Darryl G. Lowe, Edward G. White, II, Gregory Brown, John T. Rice, Joshua J. Bond, and Wynne du M. Caffey-Knight, Knoxville, Tennessee, for the appellees, Christi Lenay Fields Steele; Randall E. Pearson, MD; Laurence Thomas O'Connor, Jr., MD; Joshua R. Walker; Jeffery Scott Griswold; Jeffrey A. Woods; and State Volunteer Mutual Insurance Company.

          John W. McClarty, J., delivered the opinion of the court, in which Thomas R. Frierson, II, J. and Norma McGee Ogle, Sp. J., joined.



         I. BACKGROUND

         In 2008, Lawrence Thomas O'Connor, Jr., MD, performed two surgeries on Paul Koczera. Later that year, Mr. Koczera and his wife, represented by Laurence R. Dry and Wanda McClure Dry, [2] filed a healthcare liability action against Dr. O'Connor and his practice. Joshua R. Walker and Jeffery Scott Griswold ("Attorneys") were counsel for Dr. O'Connor. Jeffrey A. Woods was the insurance adjuster for Dr. O'Connor's insurer, State Volunteer Mutual Insurance Company ("SVMIC"). Dr. O'Connor was eventually dismissed from the action on summary judgment for insufficiency of service of process. Christi Lenay Fields Steele, the office manager for the practice, had been served with the process for Dr. O'Connor. She then gave the complaint and summons to another doctor, Dr. Randall E. Pearson, MD, who gave the papers to Dr. O'Connor. Because Ms. Steele was not authorized to accept service of process on behalf of Dr. O'Connor, the physician was dismissed as a defendant. Subsequently, in 2010, the Koczeras, again represented by the Drys, filed a lawsuit against Dr. O'Connor's partner, Dr. Pearson; his office manager, Ms. Steele; and the medical practice for wrongfully interfering with service of process on Dr. O'Connor and to recover damages due to the decrease in value of the original case caused by the dismissal of Dr. O'Connor.

         In late November 2010, a settlement was apparently reached at mediation, and the Koczeras moved to dismiss the case against Dr. Pearson and Ms. Steele. At a hearing on the motion in 2011, however, Mr. Walker requested that the court grant his motion for summary judgment rather than dismiss the case on the Koczeras' motion. On June 29, 2011, the trial court granted summary judgment in favor of Ms. Steele, Dr. Pearson, and Tennessee Urology Associates, PLLC ("TUA"). A complaint for malicious prosecution was eventually filed against Dr. Dry, Ms. Dry, and the Koczeras in early 2012. By this time, Dr. Dry had suffered a stroke and was rehabilitating in Florida. In May 2012, the Drys filed an answer as counsel for themselves and each other, noting their professional address as 140 East Division Road, Suite A5, in Oak Ridge, Tennessee. Dr. Dry, acting pro se, filed a third-party action as the sole plaintiff. His third-party complaint included claims for abuse of process, interference with Dr. Dry's business, malicious prosecution, and conspiracy. About two weeks after filing the third-party complaint, Dr. Dry died.

         On May 25, 2012, an attorney for the appellees served a suggestion of death on Ms. Dry at her law office, at the same address shown on the pleadings that she and Dr. Dry filed in the malicious prosecution case. Ms. Dry, the surviving spouse, was both a party and an attorney for other parties in that action. According to Ms. Dry, attorney White called her "and encouraged her to suspend 'any action in the litigation by agreement so that Ms. Dry could consider what further action, if any would be taken to further pursue the litigation.'" Ms. Dry asserts that Mr. White "neglected to mention that he had filed a Suggestion of Death so the case would be dismissed if a motion to substitute was not filed within the 90 day time period allowed by Rule 25.01 of the

         Tennessee Rules of Civil Procedure."[3] Rule 25.01(1) specifically provides:

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of process.
Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

         On October 16, 2012, more than ninety days after Mr. White filed the suggestion of Dr. Dry's death, Ms. Dry sent a letter to counsel for SVMIC and Mr. Woods, notifying them of her change of address from 140 East Division Road in Oak Ridge to "Wanda M. Dry, the Dry Law Firm, P.O. Box 2122, Danville, KY." On November 13, 2012, Attorneys filed a motion to dismiss Dr. Dry's third-party complaint for failure to file a timely motion for substitution pursuant to Rule 25.01. They also filed a motion for judgment on the pleadings. All the appellees joined in the motion to dismiss for failure to substitute. According to Ms. Dry, it was at this time that she first saw the suggestion of death.

         On December 4, 2012, notice was given to Ms. Dry that the motions would be heard on December 20, 2012. Ms. Dry, however, made no response to the motions. She appeared by telephone at the hearing and advised the trial court that she was "appearing today just as the attorney for myself in the - as a defendant. I'm not representing [Dr. Dry] in any way or his estate or anything to do with that. I think all of these motions are against him or his estate. He's a pro se defendant or a pro se party." She asserted that she was not "a party in this action." Ms. Dry clarified that an estate had not been opened for Dr. Dry at that time and that she was "not the executrix of the estate or the administrator of the estate." Despite her lack of standing as a party or legal counsel for a party, the trial court allowed Ms. Dry to make statements and argument at the hearing. The court granted the motions filed by the appellees and entered a final order on December 28, 2012, dismissing Dr. Dry's third-party complaint.

         On January 14, 2013, Ms. Dry attempted to file a notice of appearance to appoint herself as counsel for Dr. Dry. Two days later, she also filed a notice of appeal of the dismissal of the third-party complaint, purportedly on behalf of Dr. Dry. Upon filing a petition for appointment as administrator ad litem on behalf of Dr. Dry's estate for the limited purpose of pursuing the third-party complaint on February 27, 2013, on March 7, 2013, over nine months after Dr. Dry's death and almost three months after the order of dismissal was entered, Ms. Dry obtained an order appointing herself as administrator ad litem for the estate of Dr. Dry.

         On March 25, 2013, Ms. Dry attempted to file a notice of appearance for the third-party plaintiff in the trial court. On April 9, 2013, she filed a "Motion to Substitute and/or Motion for Enlargement of Time" in the trial court, asking to enlarge the time for her to substitute herself as administrator ad litem in place of the deceased third-party plaintiff, Dr. Dry, and herself as counsel for the administrator ad litem. According to Ms. Dry, until she was appointed as administrator ad litem, she did not have a legal duty to act regarding any aspect of this case.

         After the appeal came before us, we held that the appellees had provided proper notice of the suggestion of death by mailing a copy to the law firm address of Dr. Dry and Ms. Dry, an attorney in his law firm. This court then held that Ms. Dry, as Dr. Dry's surviving spouse, did not have standing to file the appeal because (1) she was not a party to the third-party complaint, (2) she did not represent Dr. Dry, and (3) she did not represent Dr. Dry's estate, which had not been opened when the trial court entered its final judgment. See Dry v. Steele, No. E2013-00291-COA-R3-CV, 2014 WL 295777, at *1 (Tenn. Ct. App. Jan. 28, 2014) ("Dry I"). We also opined that even if Ms. Dry had standing to argue her other issues, she waived them by failing to raise them in the trial court.[4] After the Tennessee Supreme Court denied discretionary review, Ms. Dry filed a petition for writ of certiorari to the United States Supreme Court, which was denied on October 22, 2014. See Dry v. Steele, 133 S.Ct. 405 (Mem.)(2014).

         Following the dismissal of Ms. Dry's first appeal, she filed several motions as administrator ad litem with the trial court. On June 4, 2015, the court heard argument on Ms. Dry's motion to substitute in place of the third-party plaintiff and/or motion for enlargement of time. Ms. Dry argued that because this court had found that she did not have standing to appeal, we exceeded our jurisdiction in issuing the earlier judgment and opinion. According to Ms. Dry, the judgment was not binding on her because she was not a party to the third-party case. On June 19, 2015, however, the trial court denied the motion, holding that it lacked jurisdiction to hear it. The court determined that we had already ruled that the suggestion of death had been properly served. Relying upon the law of the case doctrine, the trial court concluded that Ms. Dry's failure to timely file motions to substitute or for enlargement of time was not the result of excusable neglect. Five days later, Dr. Pearson, Ms. Steele, and TUA voluntarily dismissed their malicious prosecution suit against all the original defendants, including Ms. Dry.

         Approximately a month later, Ms. Dry filed a Rule 59/Rule 60 motion to vacate the trial court's orders of December 28, 2012 and June 19, 2015. The appellees responded, arguing that we had previously determined that the suggestion of death had been properly filed and served and that the trial court had correctly dismissed the third-party complaint. The appellees observed that the trial court was without jurisdiction to alter its prior order because the earlier ruling had become the "law of the case." Believing that it lacked jurisdiction, the court entered an order denying Ms. Dry's motion.

         Ms. Dry, as administrator ad litem, filed a notice of appeal. Upon review, we noted the following about Dry I:

In the first appeal, Ms. Dry raised issues regarding, inter alia, (1) whether the trial court erred in granting the motions to dismiss "because the administrator ad litem was not represented at the hearing and was not allowed to present proof that the ninety day window for filing the motion to substitute had not yet passed" or should be enlarged and (2) whether Tennessee Rule of Civil Procedure 25.01, as applied, violated Dr. Dry's state and federal constitutional rights. Regarding the application of Tennessee Rule of Civil Procedure 25.01, this Court ruled that the suggestion of death filed by SVMIC and Mr. Woods was properly served upon Ms. Dry but that Ms. Dry failed to file a motion for substitution within ninety days as required by Tennessee Rule of Civil Procedure 25.01. The Court concluded that because the plain language of Tennessee Rule of Civil Procedure 25.01 mandated dismissal of the deceased party under such circumstances, the trial court properly dismissed Dr. Dry's third-party complaint.
This Court also determined that Ms. Dry had no standing to appeal the trial court's judgment of dismissal, stating:
At the time of the trial court's entry of final judgment, Ms. Dry did not have authority or standing to file a notice of appeal. As already discussed, she was not a party to the action, nor did she represent Dr. Dry. Because the estate had not been opened, there was no estate to be represented and Ms. Dry clearly told the court that she did not represent his estate. We are of the opinion that Ms. Dry's entry of a notice of appearance as counsel for Dr. Dry, filed with the trial court on January 14, 2013, was ineffective and did not provide her authority to file a notice of appeal on his behalf. It is obvious that a lawyer cannot unilaterally create an attorney-client relationship with a deceased person. Furthermore, Tenn. Code Ann. 30-1-101 provides that "[n]o person shall presume to enter upon the administration of any deceased person's estate until the person has obtained letters of administration or letters testamentary." This had not been done at the time of the final judgment.
Ms. Dry's actions in petitioning the trial court to be appointed administrator ad litem and hiring herself as counsel for administrator ad litem came too late to save this appeal. According to her motion to consider post-judgment facts, she was appointed administrator ad litem on March 7, 2013, approximately five weeks after the 30-day period for filing a notice of appeal had expired. "The time limit set out in Rule 4 is jurisdictional in a civil case [and] this court has no discretion to expand the time limit set out in Rule 4." We acknowledged in Goss "that trial courts can, in certain extraordinary circumstances, grant relief in accordance with the requirements of Rule 60.02, T.R.C.P., to parties who failed to file their notice of appeal within the period of time provided for in the Tennessee Rules of Appellate Procedure, " but that such relief "relating to timeliness of an appeal is available only under the most unusual, rare, compelling and propitious circumstances." In any event, Ms. Dry did not seek relief under Rule 60.02 from the trial court.

Dry II, 2016 WL 343958, at *4 (quoting Dry I, 2014 WL 295777, at *6-7 (internal citations omitted)). We held that the trial court did possess jurisdiction to act on Ms. Dry's motion as administrator ad litem to alter/amend or vacate and remanded for further proceedings. See Pearson v. Koczera, No. E2015-02081-COA-R3-CV, 2016 WL 5343958 (Tenn. Ct. App. Sept. 23, 2016) ("Dry II").

         Upon remand back to the trial court, on December 1, 2016, Ms. Dry filed a motion for recusal of the trial judge for personal bias. Her motion to alter/amend or vacate, along with the recusal motion, came on for hearing on December 6, 2016, at which time all the motions were denied. The trial court applied the law of the case doctrine and concluded that the suggestion of death was properly served, that Ms. Dry had ample time to take action to preserve the third-party complaint but failed to do so, that the circumstances causing delay were within Ms. Dry's control, that there was prejudice to the third-party defendants as a result of her delay, that Ms. Dry failed to pay appropriate attention to the matter, ...

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