11/05/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 21, 2021 Session
DERIC J. MEAD v. JAMES LOYD TUCKER
Appeal from the Circuit Court for Sumner County
No. 83CC1-2018-CV-623 Joe H. Thompson, Judge
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No. M2020-01512-COA-R3-CV
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In this personal injury negligence action, the defendant died while the litigation was
pending. The plaintiff failed to file a motion for substitution of party within ninety days of
the original defendant’s death being suggested on the record. Over a month later, the
plaintiff moved the trial court to enlarge the time to substitute the parties pursuant to
Tennessee Rule of Civil Procedure 6.02(2). The trial court denied the motion for an
enlargement of time. Because the trial court did not abuse its discretion, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R. FRIERSON,
II, J., and KRISTI M. DAVIS, J., joined.
Thomas J. Bailey, Goodlettsville, Tennessee, for the appellant, Deric J. Mead.
Eric C. Lyons and Thomas W. Shumate, IV, Brentwood, Tennessee, for the appellee, James
Loyd Tucker.
OPINION
I. BACKGROUND
In June 2018, the appellant Deric J. Mead (“Plaintiff”) filed a complaint in the
Circuit Court for Sumner County (“the trial court”) against James Loyd Tucker (“Tucker”)
alleging negligence stemming from a June 2017 car accident in which Plaintiff was injured.
Plaintiff requested prejudgment interest, a jury trial, and damages not to exceed $100,000.
Plaintiff issued summonses to Tucker and to his uninsured/underinsured motorist carrier,
Tennessee Farmers Mutual Insurance Company (“the UM carrier”). In November 2018,
the UM carrier answered the complaint and served Plaintiff with written discovery
requests. Plaintiff did not respond to the discovery requests. Six months later, in May
2019, the UM carrier filed a motion to compel discovery against Plaintiff. Plaintiff did not
respond. At this point, Plaintiff returned his unserved June 2018 summons to Tucker with
the notation “never send [sic] by mail.”
Plaintiff issued a new summons to Tucker. Tucker was served on May 13, 2019.
Later that month, Tucker moved to dismiss Plaintiff’s prejudgment interest claim, arguing
that prejudgment interest is not recoverable in personal injury actions. In June 2019, the
trial court granted the UM carrier’s motion to compel discovery, noting that Plaintiff’s
counsel did not attend the motion hearing. By the parties’ agreement, the prejudgment
interest claim was dismissed and the UM carrier was dismissed from the action without
prejudice.
On June 24, 2019, Tucker answered the complaint. At some point, Plaintiff moved
out of state. Plaintiff’s discovery responses, which were due in August 2019, remained
incomplete for many months. In March 2020, Tucker moved to compel Plaintiff to respond
to discovery requests but later withdrew the motion after the late discovery issues were
resolved out of court. Tucker passed away in May 2020.1 On May 22, 2020, Tucker’s
counsel served a suggestion of death upon the record.
On August 20, 2020, Plaintiff filed his first amended complaint without leave of
court or consent of opposing counsel. The amended complaint was substantively the same
as his original complaint, save the addition of Mark Tucker and Pam McDuffy in the
caption as personal representatives of Tucker’s estate (“Defendants”). Defendant Mark
Tucker was served the amended complaint on September 4, 2020. Defendant McDuffy
was served the amended complaint on an unspecified date.
On September 4, 2020, Defendants filed a motion to dismiss and to strike Plaintiff’s
amended complaint. In their motion, Defendants asserted that Plaintiff had ninety days
from May 22, 2020 in which to move to substitute Defendants for Tucker; that the ninetieth
day passed on August 20, 2020; and that Plaintiff had yet to file a motion for substitution
of the parties pursuant to Tennessee Rule of Civil Procedure 25.01, thus mandating
dismissal of the action. Further, Defendants argued that Plaintiff’s amended complaint
should be stricken because he filed it without leave of court or the adverse party’s consent
over a year after Tucker’s answer, in violation of Tennessee Rule of Civil Procedure 15.01.
On September 4, 2020, Plaintiff was notified that the trial court would hear Defendants’
motions on September 28, 2020.2
1
Tucker’s deposition was not taken before he passed away.
2
The copy of Defendants’ amended notice of hearing in the appellate record indicates that it was
filed on September 9, 2020, but the parties appear to agree that Plaintiff was notified of the hearing date on
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On September 22, 2020, Plaintiff moved the trial court to enlarge the time to
substitute the parties pursuant to Tennessee Rule of Civil Procedure 6.02(2). He argued
that his counsel’s neglect in filing an amended complaint instead of a motion to substitute
the parties was excusable because of COVID-19-related reasons and that Defendants would
not be prejudiced by the delay. Plaintiff alternatively argued that the amended complaint
should be treated as a motion to substitute the parties. Defendants responded.
On September 25, 2020—the Friday before the Monday motion hearing—Plaintiff
filed the following: a supplemental memorandum of law and a sworn declaration of counsel
in support of his Rule 6.02(2) motion; a Rule 25.01 motion to substitute the parties; a Rule
15.01 motion to amend the complaint; a proposed amended complaint asserting claims
against Defendants; and a response and memorandum opposing Defendants’ motion to
dismiss. These filings were served on Tucker’s counsel who never entered an appearance
on behalf of Defendants. In his declaration, Plaintiff’s counsel elaborated:
On May 22, 2020, Plaintiff received from Defendant’s Counsel,
Notice of Suggestion of Death regarding Defendant James Loyd Tucker.
Plaintiff’s counsel has an office policy for legal assistants to calendar
deadlines and to calendar a reminder of the deadline ten days prior to the
deadline. In this case, the ten day reminder to file a Motion for [substitution]
of parties and an Amended Complaint was not calendared, only the ninety
day deadline was calendared. I was, therefore, working with limited time
constraints on the 90th day for timely filing of the necessary pleadings for
substitution of parties.
On August 20, 2020, because of Covid 19, I was working remotely in
a location separate from the subject case file and separate from the legal
assistant handling the file. I mistakenly believed that I had gathered all
necessary documents for proper filing, to include the Motion for substitution
of parties and a sufficiently drafted First Amended Complaint. I
inadvertently failed to download the proper Motion with the First Amended
Complaint, not realizing it was uploaded in two separate files. My failure to
realize the error prior to [] filing the First Amended Complaint without the
proper Motion on August 20, 2020 was an oversight, not likely to have
happened if working in close proximity to the entire case file and in close
proximity to my legal assistant, as was the case before working remotely due
to Covid 19 recommendations for social distancing and limited in-person
interactions.
September 4.
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The trial court heard the outstanding motions on September 28, 2020. The trial
court questioned Plaintiff’s counsel:
THE COURT: I think you need to respond to his arguments first. Let me ask
this. The time ran on August 22nd, is that right, or August 20th?
MR. BAILEY: August 20th, Your Honor.
THE COURT: And you’re saying you created a document on August 20th
and you just failed to file it?
MR. BAILEY: I’m saying that on August 20, I filed a pleading. I filed a
pleading that purported to substitute the parties for the personal -- or the
Defendant for the personal representatives. I did that, that document was the
Amended Complaint. That Amended Complaint was filed without a motion
per se to substitute and without a motion to amend [for] leave [of] the Court
to do so. That was done in error. And the error was from, I downloaded the
file from my legal assistant’s computer working at home and I assumed -- I
glanced at it and assumed it was all there. We typically put as -- with the
Amended Complaint here, you know, part of the same file includes exhibit,
the motion, so on and so forth. So I should have known better. I’m not
blaming my assistant. I accept the blame. I am saying that it was excusable
neglect within the rule of -- the Tennessee Rules of Civil Procedure 6.02.2 .
...
THE COURT: . . . So I’m reading your [supplemental memorandum of law]
to say that [there were] two separate files, one was a Motion to Substitute
Parties and the other was a First Amended Complaint.
MR. BAILEY: Well, I don’t know exactly what kind of motion it was, but I
just know that it was two separate files [and] that I chose to only download
one because I assumed it was the right one because it said First Amended
Complaint. So the assumption was, I don’t know what was exactly in the
other file, but that’s my belief that because it wasn’t in the file that it normally
is.
THE COURT: Have you looked at it since [Defendants’ motion to dismiss]
was filed back in the first part of this month?
MR. BAILEY: I haven’t. I created a different motion.
THE COURT: I’m sorry?
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MR. BAILEY: I haven’t.
THE COURT: Okay. But you still have it somewhere there, right?
MR. BAILEY: Well, I don’t -- I don’t have it and I don’t know if my legal
assistant has it since I told her I created a different one.
At the close of the hearing, the trial court advised that it would review relevant
caselaw and try to “figure out what the reasons for [Plaintiff’s] neglect were.” The court
instructed the parties to draft proposed orders. By final order entered October 6, 2020, the
trial court denied Plaintiff’s motions and granted those of Defendants. The trial court
ordered that the claims set forth in Plaintiff’s complaint, improperly filed first amended
complaint, and proposed first amended complaint, whether against Tucker or Defendants,
be dismissed with prejudice. Plaintiff appealed.
II. ISSUES
Plaintiff raises one issue on appeal which we restate as: Whether the trial court
abused its discretion in denying Plaintiff’s motion to enlarge time to substitute the parties,
filed on September 22, 2020, pursuant to Tennessee Rule of Civil Procedure 6.02(2).
III. STANDARD OF REVIEW
“Whether the trial court errs in granting or denying an enlargement of time under
Rule 6.02 is reviewed under the abuse of discretion standard.” Dubis v. Loyd, 540 S.W.3d
4, 12 (Tenn. Ct. App. 2016) (citing Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551
(Tenn. 2006)). This standard of review “does not permit reviewing courts to second-guess”
the trial court “or to substitute their discretion” for that of the trial court. Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). An abuse of discretion occurs when a court
“‘causes an injustice to the party challenging the decision by (1) applying an incorrect legal
standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a
clearly erroneous assessment of the evidence.’” Funk v. Scripps Media, Inc., 570 S.W.3d
205, 210 (Tenn. 2019) (quoting Lee Med., 312 S.W.3d at 524).
IV. DISCUSSION
In cases like this one where a party dies and the claims against that party are not
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extinguished,3 Tennessee Rule of Civil Procedure 25.01 sets forth the procedure for
substitution:
If a party dies and the claim is not thereby extinguished, the court may order
substitution of the proper parties. The motion for substitution may be made
by any party or by the successors or representatives of the deceased party
and, together with the notice of hearing, shall be served on the parties as
provided in Rule 5 and upon persons not parties in the manner provided in
Rule 4 for the service of process. Unless the motion for substitution is made
not later than ninety (90) days after the death is suggested upon the record by
service of a statement of the fact of the death as provided herein for the
service of the motion, the action shall be dismissed as to the deceased party.
Tenn. R. Civ. P. 25.01(1). On its face, Rule 25.01 explicitly directs the dismissal of an
action if no motion for substitution of the parties is made within ninety days of the filing
of a suggestion of death. However, Tennessee Rule of Civil Procedure 6.02 “grants the
trial judge broad discretion to enlarge many of the procedural time limitations prescribed
by the Rules of Civil Procedure.” Douglas v. Est. of Robertson, 876 S.W.2d 95, 97 (Tenn.
1994). Rule 6.02 states in pertinent part:
When by statute or by these rules or by a notice given thereunder or by order
of court an act is required or allowed to be done at or within a specified time,
the court for cause shown may, at any time in its discretion, . . . (2) upon
motion made after the expiration of the specified period permit the act to be
done, where the failure to act was the result of excusable neglect[.]
Tenn. R. Civ. P. 6.02. Thus, “[w]here an enlargement of time is requested after the original
time has elapsed, Rule 6.02(2) requires the party requesting the enlargement to show that
its failure was due to excusable neglect and that the opposing party has not been
prejudiced.” Williams, 193 S.W.3d at 550 (citing Douglas, 876 S.W.2d at 97–98).
The Tennessee Supreme Court adopted the United States Supreme Court’s
definition of excusable neglect:
[A] party’s failure to meet a deadline may have causes ranging from forces
beyond its control to forces within its control . . . . The former will almost
always substantiate a claim of excusable neglect; the latter will not.
However, neglect extends to more than just acts beyond a party’s control and
3
“No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs
affecting the character of the plaintiff, shall abate by the death of either party, but may be revived[.]” Tenn.
Code Ann. § 20-5-102.
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intentional acts. It encompasses “simple, faultless omissions to act and, more
commonly, omissions caused by carelessness.”
Id. at 550–51 (quoting State ex rel. Sizemore v. United Physicians Ins. Risk Retention Grp.,
56 S.W.3d 557, 567 (Tenn. Ct. App. 2001)) (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)). When determining whether missing a
deadline was the result of excusable neglect, courts must consider these factors: “(1) the
risk of prejudice to parties opposing the late filing, (2) the delay and its potential impact on
proceedings, (3) the reasons why the filings were late and whether the reasons were within
the filer’s reasonable control, and (4) the good or bad faith of the filer.” Id. at 551 (citing
Pioneer Inv. Servs. Co., 507 U.S. at 395). “An attorney’s mere oversight or negligence,
without more, does not automatically amount to excusable neglect.” Ferguson v. Brown,
291 S.W.3d 381, 388 (Tenn. Ct. App. 2008). Overall, “finding whether neglect is
excusable is an equitable determination ‘taking account of all relevant circumstances
surrounding the party’s omission.’” Sizemore, 56 S.W.3d at 567 (quoting Pioneer Inv.
Servs. Co., 507 U.S. at 395).
Here, the trial court outlined several reasons supporting its determination that
Plaintiff’s counsel’s actions did not constitute excusable neglect within the meaning of
Rule 6.02(2). In its order, the trial court considered all of the factors, but highlighted the
two factors regarding the reason for Plaintiff’s delay and his good faith in these
proceedings.
“[T]he courts have emphasized that the reasons leading to the delay remain a very
important—perhaps the single most important—factor in determining whether neglect
should be excusable.” Sizemore, 56 S.W.3d at 569 (citations omitted). “In evaluating the
reasons for delay, courts look at (1) whether the circumstances involved were under a
party’s own control, and (2) whether the party was paying appropriate attention to the
matter in light of the surrounding circumstances.” Id. at 569–70 (citations omitted). On
appeal, Plaintiff renews his argument that his counsel’s actions and inactions were partially
outside of his control because COVID-19 social distancing recommendations caused his
firm to work remotely, which resulted in the loss of “the safeguards of standard office
protocols.” On this point, the trial court soundly reasoned:
The Court acknowledges, of course, that the ongoing COVID-19 pandemic
is beyond any individual’s control. However, Sumner County’s “Safer at
Home” Order included an express exception for “Legal and judicial
services.”
...
COVID-19 did not keep Plaintiff’s counsel’s legal assistants from reminding
him about the deadline, nor does the pandemic absolve Plaintiff of this
professional and ethical obligation to know and remember court deadlines.
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COVID-19 did not cause Plaintiff’s counsel to “inadvertently” download one
document but not the other, not to check that he had the correct document
downloaded, or to fail to take prompt action upon learning of the alleged
mistake. Attorneys across the world have had to adapt their practices and
contend with the general disruption wrought by the pandemic. Tennessee
courts have gone to great lengths to keep its courts open. This Court declines
to find that COVID-19 relieved Plaintiff of his duty to timely file the motion
for substitution, particularly given that the Tennessee Supreme Court and the
Governor have not seen fit to extend the Rule 25.01 deadline past August 20,
2020.[4]
Keeping in mind that the pandemic had been ongoing for approximately five months when
Plaintiff missed the Rule 25.01 deadline, we agree with the trial court that the surrounding
circumstances were under Plaintiff’s control. Respectfully, five months was enough time
to develop internal procedures to effect compliance with litigation deadlines, even when
working remotely.
Further, what actually happened here has less to do with the pandemic than with
counsel’s inattention. As set forth below, the facts of this case do not lend themselves to a
finding that counsel’s inattention amounts to excusable neglect. In his declaration,
Plaintiff’s counsel declared under penalty of perjury that on the day of the Rule 25.01
deadline he “inadvertently failed to download the proper Motion [to substitute] with the
First Amended Complaint, not realizing it was uploaded in two separate files.” At the
hearing, Plaintiff’s counsel admitted that he “glanced” at the document and “assumed it
was the right one because it said First Amended Complaint.” Nothing in the record
explains how counsel proceeded to the signature page of this five-page document, signed
it, and then filed it without detecting that it was not a Rule 25.01 motion. Additionally, at
least by September 4, 2020, when Defendants filed their motion to dismiss and motion to
strike the amended complaint, Plaintiff was on notice that no Rule 25.01 motion had been
docketed. So, the question of why Plaintiff delayed until September 22, 2020, to request a
Rule 6.02(2) enlargement of time remains. Importantly, in its findings on the reason for
the delay, the trial court made a credibility determination to which we must “extend a high
degree of deference” and which we will not overturn “absent clear and convincing evidence
to the contrary.” Higdon v. Higdon, No. M2019-02281-COA-R3-CV, 2020 WL 6336151,
at *7 (Tenn. Ct. App. Oct. 29, 2020). The court found:
During the Court’s questioning at oral argument, Plaintiff’s counsel was very
noncommittal about what actually happened. He told the Court that he did
not know precisely what kind of motion he had prepared on August 20
(although his declaration stated unequivocally that it was a motion for
4
See In Re: Covid-19 Pandemic, No. ADM2020-00428 (Tenn. May 26, 2020).
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substitution), whether he or his assistants still had a copy of it or had deleted
it, or why he drafted a new motion that he then filed with the Court 36 days
later. Plaintiff’s counsel has not produced any copy of this supposed motion
for the Defendant or the Court. Plaintiff’s counsel has not explained why, if
he had the motion prepared to file on August 20, he did not actually file his
Motion to Substitute until over a month later [on] September 25. Plaintiff’s
counsel has not shown that the delay was due to any unique circumstances
beyond his control. Plaintiff’s counsel’s evasive responses and purported
lack of knowledge regarding the very subject of his sworn declaration calls
into question the credibility of his claims.
There is not clear and convincing evidence in the record to contradict these findings. In
short, the circumstances before, during, and after Plaintiff’s August 20, 2020 deadline were
under his control, and a proper Rule 25.01 motion could have been filed timely “had he
made it a matter worthy of his attention” by reading the document before signing and filing.
Sizemore, 56 S.W.3d at 571. Under circumstances such as these, “courts have been
reluctant to find excusable neglect.” Id. at 570 (collecting cases).
In its order, the trial court also considered the factor of Plaintiff’s good or bad faith
in relation to his Rule 6.02(2) motion. Williams, 193 S.W.3d at 551 (citing Pioneer Inv.
Servs. Co., 507 U.S. at 395). The trial court noted Plaintiff’s noncompliance with previous
discovery deadlines, resulting in two motions to compel; his long delay in serving Tucker
after filing the original complaint; and his “delay in reacting to Defendant[s’] dispositive
motions—even [] with the very real threat of dismissal looming overhead.” With these
facts in mind, the trial court properly concluded that Plaintiff’s “extensive noncompliance
with the Court’s deadlines to date and his unconvincing excuses in his papers and oral
argument demonstrate bad faith.” Cf. Kenyon v. Handal, 122 S.W.3d 743, 757 (Tenn. Ct.
App. 2003) (finding no bad faith where movant had not missed other deadlines and had not
requested other extensions of time).
On appeal, Plaintiff argues that his delay was minimal, as was its impact on the
proceedings. Again, Plaintiff knew that the deadline to move to substitute the parties was
August 20, and he knew, by September 4 at the latest, that he had filed an improper motion.
When filing it on September 22, 2020, Plaintiff set the Rule 6.02(2) motion to enlarge time
for a September 28 hearing. Under Rules 6.01 and 6.04(1), Plaintiff had to serve his motion
to enlarge time “not later than five (5) days before” the hearing, excluding Saturdays and
Sundays. Tenn. R. Civ. P. 6.01; 6.04(1). The local teleconferencing rules then in effect
required Plaintiff to set his hearing with a “minimum of ten (10) calendar days’ notice.”
Because Plaintiff’s Rule 6.02(2) motion did not satisfy either of these rules, the trial court
reasonably concluded that “these ongoing procedural deficiencies call into question the
reasons for missing the deadline on August 20 and weigh against granting Plaintiff’s
Motion to Enlarge Time.” Plaintiff’s missteps “cannot be isolated from [his] failure to
comply with other deadlines and magnif[y] both the prejudice to the defense and the effect
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of the delay.” Williams, 193 S.W.3d at 552.
Likewise, Plaintiff presses that the risk of prejudice to Defendants was minimal. He
argues for reversal of the trial court’s decision because no prejudice to Defendants has been
established given that the lawsuit was in pre-trial status, his Rule 25.01 motion to substitute
the parties was “only 36 days” late, and Defendants presumably “were already well aware
of” Plaintiff’s attempt to substitute them for Tucker. Plaintiff likens this case to Dubis v.
Loyd, which held that a defendant would not be prejudiced upon substitution of a new party
in the original plaintiff’s place because the defendant “had notice from the beginning of
the suit.” Dubis, 540 S.W.3d at 14. The opposite facts are present here. As the personal
representatives of Tucker’s estate, Defendants were not involved in this years-long
litigation until late in the game, nor were they served with the motion to substitute.
Moreover, the Dubis court noted that there was no allegation of the movant’s bad faith
relative to the proceedings. Id. As previously discussed, that is not the case here. Just as
he did in the trial court, Plaintiff also cites Wagner v. Frazier, 712 S.W.2d 109 (Tenn. Ct.
App. 1986), a case in which excusable neglect was found “where the suit had been fully
tried and the parties were awaiting a decision from the court and the motion was made eight
days after the ninety day period had run.” Id. at 113. Here, the trial court appropriately
distinguished Wagner because Plaintiff’s delay was much longer, the case had not been
tried, and liability was “hotly contested.”
On balance, the factors relating to the reasons for Plaintiff’s failure to timely file a
Rule 25.01 motion for substitution of the parties weigh in favor of the trial court’s decision
that the delay in filing the motion was not the result of excusable neglect. We conclude
that the trial court did not abuse its discretion in denying Plaintiff’s motion for an
enlargement of time under Rule 6.02(2) after finding that there was no excusable neglect.
The trial court’s extensive order set forth the rationale for its decision with due
consideration of the appropriate factors. Although the trial court’s order was a party-
prepared order, the record does “not create doubt that the decision represents the trial
court’s own deliberations and decision.” Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303,
316 (Tenn. 2014). Upon our study of the record, the relevant facts established therein, and
the applicable legal principles, we conclude that the trial court’s decision “was within the
range of acceptable alternative dispositions.” Lee Med., 312 S.W.3d at 524. Accordingly,
we affirm.
V. CONCLUSION
We affirm the judgment of the trial court. The case is remanded for such further
proceedings as may be necessary and consistent with this opinion. Costs of the appeal are
taxed to the appellant, Deric J. Mead.
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_________________________________
JOHN W. McCLARTY, JUDGE
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