KATHERINE C. DUBIS v. YOLANDA E. LOYD, ET AL. - Articles

All Content


Posted by: Stacey Shrader Joslin on Aug 15, 2016

Court: TN Court of Appeals

Attorneys 1:

A. Wilson Wages, Millington, Tennessee, for the appellant, Katherine C. Dubis.

Attorneys 2:

Garrett M. Estep, Memphis, Tennessee, for the appellee, Yolanda E. Loyd.

Judge(s): STAFFORD

After the death of the original plaintiff while this case was pending, a timely motion for substitution was filed to substitute the original plaintiff's parents as the real party in interest pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure. The motion indicated that the original plaintiff's parents were her only heirs and that no estate was to be opened for the original plaintiff in her home state of Missouri. The defendant filed an objection to the substitution asserting that the original plaintiff's heirs were not the proper parties, but the trial court eventually allowed parents to be substituted as plaintiffs. After the parties became aware that an estate had been opened for the original plaintiff in Missouri, defendant filed a motion to dismiss based upon non-compliance with Tennessee Code Annotated Section 20-5-104, which requires a showing that no person is willing to administer the estate of a deceased party before his or her heirs may revive a claim. Parents filed a response in opposition and, in the alternative, a motion for enlargement of time to file a motion to substitute the original plaintiff's personal representative. The trial court denied the motion for enlargement of time and granted the defendant's motion to dismiss. Because parents have shown excusable neglect sufficient to justify an enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure, we reverse and remand for further proceedings.

Attachments: