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Posted by: Tanja Trezise on Jan 28, 2014

Court: TN Court of Appeals

Attorneys 1:

Wanda McClure Dry, Danville, Kentucky, for the appellant, Laurence R. Dry.

Attorneys 2:

Wynne du M. Caffey, Knoxville, Tennessee, for the appellees, Christi Lenay Fields Steele, Randall E. Pearson, M.D., and Laurence Thomas O’Connor, Jr., M.D.

Edward G. White, II, and Joshua J. Bond, Knoxville, Tennessee, for the appellees, Jeffrey A. Woods and State Volunteer Mutual Insurance Company.

Darryl G. Lowe, Knoxville, Tennessee, for the appellees, Joshua R. Walker and Jeffery Scott Griswold.

Judge(s): SUSANO

The plaintiff, a licensed attorney, filed this pro se third party action two weeks before his death on May 17, 2012. The defendants filed a suggestion of death under Tenn. R. Civ. P. 25.01. When no motion for substitution was filed during the prescribed time period, the defendants filed a motion to dismiss. At the hearing on the motion, the decedent’s surviving spouse, who had practiced law with him, appeared by telephone and informed the trial court that she was not a party and was not representing the decedent or his estate with respect to the plaintiff’s third party complaint. Despite these representations, she asserted that the court should hear her argument as to why her late husband’s action should not be dismissed. The trial court dismissed the action for failure to timely seek substitution of party, and also granted defendants’ motion for judgment on the pleadings. The surviving spouse filed a notice of appeal. We hold that the defendants provided proper notice under Rule 25.01 by mailing a copy of the suggestion of death to the law firm address of decedent and his surviving spouse. We further hold that decedent’s surviving spouse did not have standing to file this appeal because (1) she was not a party, (2) did not represent her decedent husband, and (3) did not represent his estate, which had not been opened when the trial court entered its final judgment. We affirm the judgment of the trial court and dismiss this appeal.