RANDALL E. PEARSON, MD, ET AL.
PAUL KOCZERA, ET AL.
Session October 17, 2017
from the Circuit Court for Anderson County No. B2LA0060 John
D. McAfee, Judge 
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
McClure Dry, Danville, Kentucky, pro se appellant, as
administrator ad litem for the Estate of Laurence R. Dry.
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.
W. McClarty, J., delivered the opinion of the court, in which
Thomas R. Frierson, II, J. and Norma McGee Ogle, Sp. J.,
W. MCCLARTY, JUDGE.
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,  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.
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.
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
Rules of Civil Procedure." Rule 25.01(1) specifically
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.
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.
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.
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.
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.
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. 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).
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.
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, 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
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
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, ...