Day on Torts
Where plaintiff died a few days before the complaint in her HCLA suit was filed, and the complaint was filed with her named as plaintiff, the complaint was a nullity that could not be corrected by amendment and dismissal of the case was affirmed.
In Owen v. Grinspun, No. M2021-00681-COA-R3-CV (Tenn. Ct. App. May 25, 2022), plaintiff wife had surgery in August 2019, and she later gave pre-suit notice to defendants of an HCLA claim based on injuries related to that surgery. After notice had been given, but a few days before the complaint was filed, plaintiff wife died. The complaint was nevertheless filed listing plaintiff wife as the sole plaintiff.
Defendants filed an answer and engaged in discovery. Plaintiff’s counsel thereafter filed a suggestion of plaintiff wife’s death on the record, and also filed a motion to substitute plaintiff’s husband as the plaintiff, which the trial court allowed. Later, however, defendants filed a motion to dismiss, asserting that “the original complaint was a nullity that did not serve to toll the statute of limitations and that the statute of limitations had now expired.” The trial court “reluctantly granted the motion” to dismiss, and this ruling was affirmed on appeal.
There was no dispute that plaintiff wife was deceased when the complaint was filed, but husband argued that “when his motion for substitution was granted, the amended pleading naming him as the plaintiff related back to the filing of the original complaint.” (internal citation omitted). Citing extensively from and relying on McCormick v. Illinois Cent. R. Co., No. W2008-00902-COA-R9-CV, 2009 WL 1392575 (Tenn. Ct. App. May 19, 2009), the Court rejected plaintiff’s argument.
In McCormick, the Court of Appeals had held that a complaint filed in the sole name of a plaintiff who had died months before the complaint was filed was a nullity, as a “deceased individual lacked capacity to sue.” (internal citation omitted). The Court in McCormick had explained that it was following the majority rule, as the plaintiff in that case had “cited no cases in which courts outside our jurisdiction had allowed a case to continue where it was filed by a deceased party.” In the instant case, plaintiff husband advanced two arguments as to why the result here should be different.
First, plaintiff husband argued that “the modern trend [was] to move away from the nullity doctrine[.]” He cited a federal case dealing with an investment fund that had been dissolved prior to suit being filed, but the Court declined to rely on the federal court’s reasoning. The Court noted that the federal case arose under different circumstances, that there had not been a previous Second Circuit opinion addressing the issue, and that the Second Circuit opinion was “simply not binding on this Court.”
Second, plaintiff argued that Tennessee Rule of Civil Procedure 17.01 “indicate[s] that the real party in interest may be substituted for even a non-existent party.” While acknowledging that McCormick did not cite Rule 17.01, the Court of Appeals noted that courts in other jurisdictions “have more recently rejected arguments that Rule 17 alters the nullity doctrine in this circumstance.” After reviewing cases from other states, the Court of Appeals ruled that that it “must conclude that the continued application of the nullity doctrine in this context best comports with Tennessee law.” The Court explained that many cases cited by plaintiff arose in very different circumstances, including wrongful death cases where defendants would be well aware of the death of the named plaintiff, or cases filed by parties who were not the correct plaintiff but were not deceased. The Court reasoned:
[T]here seems to be no dispute in this case that a case simply cannot be prosecuted by a deceased individual. …[T]he cases that most closely resemble the facts of this case have generally concluded that the filing was a nullity, often because the plaintiff’s lack of legal existence rendered the complaint void. …Our conclusion is further buttressed by the fact that it comports with other Tennessee law recognizing that an illegal filing can constitute a nullity that does not properly invoke the court’s jurisdiction. …[T]his Court was not presented this issue on a fresh slate. More than a decade ago, this Court concluded that the nullity doctrine, a doctrine that courts today still recognize as the majority viewpoint, was most consistent with Tennessee law. After analyzing the law on this issue, we must conclude that the McCormick court was correct to characterize this action as a nullity. And as a nullity, there is nothing to be amended. The substitution of [husband] as the plaintiff therefore cannot relate back.
(internal citations omitted).
Plaintiff argued that defendants had “waived any objection to the substitution when they consented to [husband] being substituted as plaintiff,” but the Court rejected this argument. The Court specifically noted that even though defendants acquiesced in the substitution, this “did not prevent them from raising this issue to the trial court,” as McCormick states that an objection based on the plaintiff being deceased at the time of filing can be raised at any time during the proceedings, and Rule 12.08 states that a lack of capacity defense can be raised as late as a trial on the merits. Plaintiff also urged the Court to apply equitable tolling here, but the Court explained that “equitable tolling has never been recognized in Tennessee in civil cases.”
Because the plaintiff was deceased when the complaint was filed, the complaint was ruled a nullity, and dismissal was affirmed.
This case reaffirms the nullity doctrine in Tennessee. One interesting point here is that the complaint was filed mere days after plaintiff’s death, so it is entirely possible that the attorney simply had not yet been informed that plaintiff had died, especially because she died from causes unrelated to the alleged medical negligence. Nevertheless, the entire case was dismissed with no trial on the merits due to plaintiff’s death a few days before the complaint was filed.
This opinion was released four months after oral arguments in this case.