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Khah v. Capley

Court of Appeals of Tennessee, Nashville

October 31, 2019

VIVIAN KHAH
v.
JONATHAN CAPLEY

          Session July 11, 2019

          Appeal from the Circuit Court for Davidson County No. 18C-2155 Hamilton V. Gayden, Jr., Judge

         This appeal arises from the dismissal of a personal injury action in which the alleged tortfeasor died before suit was filed. Upon a motion to dismiss, the trial court determined that the suit was barred by the applicable statute of limitations. Because no personal representative was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff's cause of action, we affirm the dismissal.

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

          Michael A. Katzman, Mendy M. Katzman, and Patience R. Branham, Memphis, Tennessee, for the appellant, Vivian Khah.

          R. Kreis White, Brentwood, Tennessee, for the appellee, the Estate of Jonathan Capley.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

          W. NEALMcBRAYER, JUDGE

         I.

         On May 12, 2016, Vivian Khah suffered injuries in an automobile accident, allegedly caused by Jonathan Capley. Eighteen days after the accident, Mr. Capley passed away. On May 11, 2017, unaware of Mr. Capley's death, Ms. Khah filed a civil warrant against Mr. Capley in the General Sessions Court for Davidson County. See Tenn. Code Ann. § 16-15-716 (Supp. 2019). Ms. Khah named no other defendant.

         The sheriff's office returned the civil warrant with the following notation: "per Father[, ] Jonathan Capley is deceased as of last year." On March 9, 2018, Ms. Khah filed an alias warrant against Mr. Capley. Id. § 16-15-710 (2009). The sheriff's office returned the alias warrant, noting that Mr. Capley was "[d]eceased as of last May 2016." Apparently, Ms. Khah never reviewed either return of service.

         On April 9, 2018, the Estate of Jonathan Capley filed a suggestion of Mr. Capley's death.[1] The next month, Ms. Khah moved to substitute the Estate as the defendant. The Estate opposed the motion to substitute and moved to dismiss. The Estate argued that the personal representative of the decedent was the proper party to sue and, in any event, the suit was time barred.

         The general sessions court granted both the motion to substitute and the motion to dismiss. Ms. Khah then appealed to the Circuit Court for Davidson County. The Estate again moved to dismiss on the grounds that Ms. Khah had not sued the personal representative of the decedent within the applicable statute ...


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