Session July 11, 2019
from the Circuit Court for Davidson County No. 18C-2155
Hamilton V. Gayden, Jr., Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Michael A. Katzman, Mendy M. Katzman, and Patience R.
Branham, Memphis, Tennessee, for the appellant, Vivian Khah.
Kreis White, Brentwood, Tennessee, for the appellee, the
Estate of Jonathan Capley.
Neal McBrayer, J., delivered the opinion of the court, in
which Andy D. Bennett and Richard H. Dinkins, JJ., joined.
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.
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.
April 9, 2018, the Estate of Jonathan Capley filed a
suggestion of Mr. Capley's death. 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.
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