IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
July 9, 1997
SHIRLEY JEAN McCRACKEN )
and ALAN McCRACKEN, ) Cecil W. Crowson
) Appellate Court Clerk
Plaintiffs/Appellants, )
) Williamson Circuit
) No. 94372
VS. )
) Appeal No.
) 01A01-9511-CV-00531
BRENTWOOD UNITED )
METHODIST CHURCH, )
)
Defendant/Appellee. )
APPEAL FROM THE CIRCUIT COURT FOR WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE
THE HONORABLE CORNELIA A. CLARK, JUDGE
For the Plaintiffs/Appellants: For the Defendant/Appellee:
Stanley M. Chernau Frank Thomas
Linda F. Burnsed Leitner, Warner, Moffitt, Williams,
Chernau, Chaffin & Burnsed Dooley & Napolitan
Nashville, Tennessee Nashville, Tennessee
AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves a woman who broke both ankles in a fall at church.
The woman and her husband filed suit in the Circuit Court for Williamson County
against the church and others. The trial court granted the church’s motion for
summary judgment based on the statute of limitations and the joint enterprise rule.
The woman and her husband perfected this appeal after obtaining post-judgment
relief from an inappropriate interlocutory appeal. We have determined that the
trial court properly granted the post-judgment relief but erred in summarily
dismissing the complaint.
I.
Shirley Jean and Alan McCracken are members of the Brentwood United
Methodist Church. On June 20, 1993, less than one month after joining the
church, Ms. McCracken fell as she was entering the church’s new sanctuary from
an older portion of the building containing the church’s classrooms. Persons
entering the sanctuary at that location had to climb a flight of stairs and then pass
through a doorway where there was a 2¾ inch change in the elevation of the floor.
Ms. McCracken stumbled and fell when she caught one of her shoes on the
threshold, breaking both ankles and injuring her shoulder.
Ms. McCracken’s ankle injuries required several surgeries, and she was
required to undergo rehabilitation for nearly one year before regaining reasonable
mobility. The McCrackens were reluctant to assert a claim against the church;
however, the church’s business administrator and senior pastor assured them that
the church carried adequate insurance for injuries on church property.
Accordingly, the McCrackens submitted a claim to the church’s insurance
company and received $5,000 to help defray some of their medical expenses.
The McCrackens retained a lawyer who continued settlement discussions
with the church’s insurance company. When it became evident that a satisfactory
settlement was not forthcoming, the McCrackens filed suit on June 17, 1994 -
three days before the statute of limitations would have run on their claims. The
complaint named as defendants the Brentwood United Methodist Church
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Foundation, Inc. (the "foundation") and the architect and construction company
that designed and constructed the sanctuary.1
The church first learned of the McCrackens’ lawsuit on June 20, 1994 when
a Nashville newspaper reporter telephoned the senior pastor to get a comment
about the case. The summons and the McCrackens’ original complaint were
served on the church’s financial administrator on June 28, 1994. The
administrator recognized immediately that the McCrackens had sued the
foundation rather than the Brentwood United Methodist Church (the “church”).2
In his June 28, 1994 letter transmitting the complaint and summons to the church’s
insurance company, the administrator stated: “The plaintiff has sued the wrong
entity. Would this present grounds for the dismissal of this case?”
On July 28, 1994, the foundation moved for summary judgment on the
grounds that it owned no property and that it was not involved with the
construction of the new church building. Approximately ten days later, the
McCrackens requested permission to file a second amended complaint for the
purpose of adding the church as a defendant. The trial court granted the motion,
and the McCrackens filed their second amended complaint on September 22,
1994. One week later, the church moved for summary judgment based on the one-
year statute of limitations in Tenn. Code Ann. § 28-3-104(a) (Supp. 1996).
The trial court filed a memorandum opinion on February 1, 1995, granting
the church’s motion for summary judgment on two grounds. First, the trial court
determined that the McCrackens could not take advantage of the relation back
provisions in Tenn. R. Civ. P. 15.03 and, therefore, that their claims against the
church in their second amended complaint were time-barred. Second, the trial
court, relying on the joint enterprise defense, held that the McCrackens could not
sue the church because it was an unincorporated association of which they were
1
The McCrackens filed an amended complaint on June 20, 1994, adding an engineering
firm as another defendant.
2
The church is an unincorporated, not-for-profit, religious association; while the
foundation is a separate corporation that administers the church’s endowment. The foundation
owns no property.
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members. The February 13, 1995 summary judgment order stated specifically that
the order constituted a final judgment under Tenn. R. Civ. P. 54.02 on all claims
against the church.
The McCrackens requested the trial court to “reconsider” its decision to
grant the summary judgment3 and, in the alternative, to grant them permission to
pursue an interlocutory appeal.4 On April 20, 1995, the trial court denied the
motion to reconsider but granted the McCrackens permission to pursue an
interlocutory appeal. This court denied the McCrackens’ application for an
interlocutory appeal on May 31, 1995, because they were entitled to an appeal as
of right. McCracken v. Brentwood United Methodist Church, App. No. 01A01-
9505-CV-00204 (Tenn. Ct. App. May 31, 1995).
On June 13, 1995, the McCrackens requested this court to grant relief from
their failure to file a timely notice of appeal from the trial court’s April 20, 1995
order. On June 22, 1995, we denied the motion but suggested that it would be
appropriate to seek this relief from the trial court. McCracken v. Brentwood
United Methodist Church, App. No. 01A01-9505-CV-00204 (Tenn. Ct. App. June
21, 1995). On July 7, 1995, the trial court vacated and re-entered the portion of
its April 20, 1995 order denying the McCrackens’ motion to reconsider.
Thereafter, the McCrackens filed a notice of appeal on July 21, 1995.
II.
TENN. R. CIV. P. 60.02 RELIEF FROM JUDGMENT
We turn first to the church’s assertion that the McCrackens are not entitled
to Tenn. R. Civ. P. 60.02 relief from their failure to file a notice of appeal within
thirty days following the entry of the trial court’s April 20, 1995 order denying
their motion to reconsider the summary judgment. The church asserts that the
3
The Tennessee Rules of Civil Procedure do not authorize “motions to reconsider.” We
construe this motion to be a motion to alter or amend pursuant to Tenn. R. Civ. P. 59.04.
4
The request for an interlocutory appeal was unnecessary because the trial court had
designated its February 13, 1995 order as final in accordance with Tenn. R. Civ. P. 54.02. The
McCrackens were entitled to an appeal as of right from this order.
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McCrackens’ erroneous pursuit of an interlocutory appeal is not the type of
mistake, inadvertence, or excusable neglect that warrants extraordinary relief from
the judgment. We disagree.
The filing requirements for notices of appeal in civil cases are mandatory
and jurisdictional. Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App.
1994); John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422, 424
(Tenn. Ct. App. 1983). While neither the trial nor the appellate courts may waive
or expand the time for filing a notice of appeal, First Nat’l Bank v. Goss, 912
S.W.2d 147, 148 (Tenn. Ct. App. 1995), a trial court may grant an appellant relief
from an untimely notice of appeal in unusual or compelling circumstances. See
Moody v. Moody, 681 S.W.2d 545, 546 (Tenn. 1984); Jerkins v. McKinney, 533
S.W.2d 275, 280 (Tenn. 1976); Jefferson v. Pneumo Servs. Corp., 699 S.W.2d
181, 184-85 (Tenn. Ct. App. 1985). This relief generally takes the form of
vacating and re-entering the final order.
Parties seeking Tenn. R. Civ. P. 60.02 relief must substantiate their request
by clear and convincing evidence. Davidson v. Davidson, 916 S.W.2d 918, 923
(Tenn. Ct. App. 1995); Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App.
1990). These requests are addressed to the trial court’s discretion, and thus
appellate courts review decisions regarding Tenn. R. Civ. P. 60.02 relief using the
abuse of discretion standard. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97
(Tenn. 1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991); Day
v. Day, 931 S.W.2d 936, 939 (Tenn. Ct. App. 1996); Marr v. Montgomery
Elevator Co., 922 S.W.2d 526, 528 (Tenn. Ct. App. 1995); John Barb, Inc. v.
Underwriters at Lloyds of London, 653 S.W.2d at 424.
This case presents one of the rare circumstances warranting Tenn. R. Civ.
P. 60.02 relief. The McCrackens’ failure to file a timely notice of appeal
following the April 20, 1995 order was not just a product of their lawyers’ failure
to appreciate the significance of the Tenn. R. Civ. P. 54.02 designation in the
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February 13, 1995 order. 5 It was also caused by the trial court’s decision to grant
them an interlocutory appeal even though the February 13, 1995 order was final.
The procedural posture of the appeal would have been clear had the trial court
denied the McCrackens’ application for interlocutory appeal on the ground that
they were entitled to appeal as of right. However, the order granting the
interlocutory appeal could have induced the McCrackens’ lawyer to conclude that
filing a notice of appeal was no longer necessary. Accordingly, we find that the
trial court correctly granted the McCrackens Tenn. R. Civ. P. 60.02 relief to
enable them to file a timely notice of appeal from its April 20, 1995 order.6
III.
RELATION BACK UNDER TENN. R. CIV. P. 15.03
The McCrackens take issue with the trial court’s decision that they could
not take advantage of Tenn. R. Civ. P. 15.03's relation back provision because the
church did not have notice of their suit before the statute of limitations expired.
They insist that the church received timely notice of the suit when its senior pastor
received a telephone call from a newspaper reporter requesting comment about
their suit. While this notice was extremely informal, we find that it satisfies Tenn.
R. Civ. P. 15.03's requirements.
Plaintiffs who file their lawsuit at or near the end of the statute of
limitations period face a difficult predicament if they make a mistake regarding the
name of the defendant. To avoid the statute of limitations extinguishing their
claim against misnamed defendants, Tenn. R. Civ. P. 15.03 permits these plaintiffs
5
The McCrackens would not have been entitled to Tenn. R. Civ. P. 60.02 relief had their
predicament been caused by their lawyers’ ignorance or mistaken understanding of the
procedural rules. Bivins v. Hospital Corp. of Am., 910 S.W.2d 441, 446 (Tenn. Ct. App. 1995);
Algee v. State Farm Ins. Co., 890 S.W.2d 445, 449 (Tenn. Ct. App. 1994); Kilby v. Sivley, 745
S.W.2d 284, 287 (Tenn. Ct. App. 1987).
6
Our May 31, 1995 order denying the McCrackens’ application for an interlocutory
appeal overlooked the fact that the trial court’s April 20, 1995 order disposed of the
McCrackens’ motion to reconsider and that the McCrackens had not filed a notice of appeal.
These oversights did not affect the McCrackens’ ability to file a timely notice of appeal from the
April 20, 1995 order because our order was not entered until after the expiration of the time for
filing the notice of appeal.
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to amend their complaint to correct the misnomer and provides that the
amendment will relate back to the filing of the original complaint under certain
conditions.
At all times pertinent to this case, Tenn. R. Civ. P. 15.03 provided:
Whenever the claim or defense asserted in the
amended pleadings arose out of the conduct, transaction
or occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to the
date of the original pleading. An amendment changing
the party against whom a claim is asserted relates back
if the foregoing provision is satisfied and if, within the
period provided by law for commencing the action
against him, the party to be brought in by amendment
(1) has received such notice of the institution of the
action that he will not be prejudiced in maintaining his
defense on the merits, and (2) knew or should have
known that, but for a misnomer or other similar mistake
concerning the identity of the proper party, the action
would have been brought against him. Except as above
specified, nothing in this rule shall be construed to
extend any period of limitations governing the time in
which any action may be brought.
Thus, the relation back feature of Tenn. R. Civ. P. 15.03 works only when the
following conditions exist: (1) the claim must arise out of the same conduct,
transaction, or occurrence involved in the original complaint; (2) the party to be
brought in by the amendment must not be prejudiced in maintaining its defense,
and (3) the party to be brought in by amendment either knew or should have
known it would have been sued had it not been for the misnomer or similar
mistake. Lease v. Tipton, 722 S.W.2d 379, 380 (Tenn. 1986); Turner v. Aldor Co.
of Nashville, Inc., 827 S.W.2d 318, 321-22 (Tenn. Ct. App. 1991).
Timely notice is the linchpin of Tenn. R. Civ. P. 15.03. Floyd v. Rentrop,
675 S.W.2d 165, 168 (Tenn. 1984). The cases construing Tenn. R. Civ. P. 15.03
have focused on the content of the notice, the time within which the notice must
be received, and the persons who must receive the notice. Accordingly, the courts
have held that the notice must be notice of the lawsuit rather than merely notice
of the underlying injury. Smith v. Southeastern Properties, Ltd., 776 S.W.2d 106,
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109 (Tenn. Ct. App. 1989). The notice must also be received before the running
of the applicable statute of limitations.7 Duke v. Replogle Enters., 891 S.W.2d
205, 206-07 (Tenn. 1994); Allen v. River Edge Motor Lodge, 861 S.W.2d 364, 365
(Tenn. Ct. App. 1993). Finally, in addition to notifying the defendant, Tenn. R.
Civ. P. 15.03 permits notifying the defendant’s attorney but not the employees of
the defendant’s insurance company. Braswell v. Carothers, 863 S.W.2d 722, 726
(Tenn. Ct. App. 1993) (holding that notice to the defendant’s lawyer satisfies
Tenn. R. Civ. P. 15.03); Smith v. Southeastern Properties, Ltd., 776 S.W.2d at 110
(holding that notice to adjustors employed by the defendant’s insurance company
does not satisfy Tenn. R. Civ. P. 15.03).8
The courts have not definitively decided what type or form of notice
satisfies Tenn. R. Civ. P. 15.03's requirements. The rule requires notice, not
service. See Montgomery v. United State Postal Serv., 867 F.2d 900, 903 (5th Cir.
1989). Since Tenn. R. Civ. P. 15.03 must be construed liberally to enable courts
to hear and decide cases on their merits, Floyd v. Rentrop, 675 S.W.2d at 168;
Osborne Enters., Inc. v. City of Chattanooga, 561 S.W.2d 160, 163 (Tenn. Ct.
App. 1977), the current prevailing view is that the notice required by Tenn. R. Civ.
P. 15.03 may be either formal or informal. See Korn v. Royal Caribbean Cruise
Line, Inc., 724 F.2d 1397, 1399 (9th Cir. 1984); Kinally v. Bell of Pennsylvania,
748 F. Supp. 1136, 1141 (E.D. Pa. 1990); 3 James W. Moore, Moore’s Federal
Practice ¶ 15.15[4] (2d ed. 1996); 6A Charles A. Wright, et al., Federal Practice
and Procedure § 1498, at 116 (2d ed. 1990).
Tenn. R. Civ. P. 15.03 requires more than mere awareness that a suit has
been filed. See Keller v. Prince George’s County, 923 F.2d 30, 33-34 (4th Cir.
1991). Unofficial, informal notice that a lawsuit has been filed coupled with
knowledge of the facts on which the lawsuit is based may suffice as long as the
7
Tenn. R. Civ. P. 15.03 was amended in 1995 to extend the notice period to “120 days
after commencement of the action.” The effect of this amendment is the same as the 1991
amendment to Fed. R. Civ. P. 15(c)(3) which was to mitigate the harsh result of Schiavone v.
Fortune, 477 U.S. 21, 30, 106 S. Ct. 2379, 2384 (1986). The amendment cannot be applied
retroactively to complaints filed before its July 1, 1995 effective date.
8
But see Bell v. P & B Mfg. Corp., 107 F.R.D. 371, 374 (W.D. Tenn. 1985).
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rule’s other requirements are satisfied. Parties seeking to invoke the relation back
provisions of Tenn. R. Civ. P. 15.03 must also demonstrate that the party to be
added by amendment will not be prejudiced in maintaining its defense and that the
party knew or should have known that it would have been sued had it not been for
the misnomer or other similar mistake.
The church concedes that the telephone conversation between its senior
pastor and the newspaper reporter occurred before the statute of limitations ran on
the McCrackens’ claim. Nonetheless, it asserts that the conversation does not
qualify as notice under Tenn. R. Civ. P. 15.03 because the senior pastor did not
have authority to receive notices of this sort and because the substance of the
conversation was too vague. Both assertions are not well taken.
Tenn. R. Civ. P. 15.03 envisions that the newly added defendant must
receive actual notice of the lawsuit. Accordingly, an individual defendant or the
defendant’s attorney must receive the notice. When the defendant is an
organization, the notice may be given to any person within the organization with
apparent authority to receive the notice. See Garland v. Seaboard Coastline R.R.,
658 S.W.2d 528, 530-31 (Tenn. 1983) (holding that service of process may be
made on a person so integrated in the organization that he or she will know what
to do with the papers). The church’s senior pastor plays a significant role in the
secular and religious affairs of the church. Accordingly, it is reasonable for us to
infer that he is one of the persons within the organization who would know what
to do with notice that a lawsuit has been filed against the church.
Tenn. R. Civ. P. 15.03 does not require the McCrackens to serve the church
with process or to provid the church with a detailed summary of the allegations in
their complaint. The senior pastor conceded that he was aware that Ms.
McCracken had fallen at the church, and he specifically recalled that the
newspaper reporter asked questions relating to the newly filed lawsuit. Even
though the telephone call was not in writing, it provided the senior pastor with
actual notice that the McCrackens had filed a lawsuit against the church seeking
damages for the injuries stemming from Ms. McCracken’s fall.
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The evidentiary materials submitted in support of and in opposition to the
summary judgment motion contain the following undisputed facts. The church,
through its senior pastor, received actual notice before the statute of limitations
ran that the McCrackens had filed a lawsuit based on Ms. McCracken’s fall at the
church. The church was not prejudiced in defending against the suit because it
knew about Ms. McCracken’s fall as soon as it happened. It also knew that its
insurer had been negotiating a settlement with the McCrackens’ lawyer for quite
some time. Finally, the church knew that the McCrackens were looking to the
church for damages and, as the business administrator’s June 28, 1994
memorandum underscores, that the McCrackens’ lawyer had mistakenly named
the foundation as a defendant rather than the church. These undisputed facts
establish all the conditions required for the operation of Tenn. R. Civ. P. 15.03's
relation back provision.
IV.
THE JOINT ENTERPRISE DEFENSE
The McCrackens also take issue with the trial court’s dismissal of their
complaint against the church on the ground that members of an unincorporated
religious association cannot recover from the association for damages. The trial
court’s decision was fully consistent with the decisional law as it stood at the time.
See Fain v. O’Connell, No. 03A01-9403-CV-00082, 1994 WL 577404, at *1-2
(Tenn. Ct. App. Oct. 21, 1994), rev’d, 909 S.W.2d 790 (Tenn. 1995); Shropshire
v. Pure Holiness Church of God, App. No. 03A01-9101-CV-00022, 1991 WL
121460, at *2 (Tenn. Ct. App. July 10, 1991) (No Tenn. R. App. P. 11 app. filed).
However, after the trial court granted the church’s summary judgment, the
Tennessee Supreme Court announced that the joint enterprise defense was not a
blanket defense to premise liability suits brought by members of unincorporated
religious associations.
While this case was on appeal, the Tennessee Supreme Court reversed the
Eastern Section’s Fain v. O’Connell decision. Even though the court noted factual
distinctions between the Fain case and the Shropshire case, it pointed out that the
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defendant in Fain had never asserted that the plaintiff “had any responsibility for
or right of control over the maintenance of the . . . parish facilities.” Fain v.
O’Connell, 909 S.W.2d 790, 794 (Tenn. 1995). Noting that it did not favor
immunity from tort liability, the court unequivocally rejected any defense in
actions of this sort “which is based on the legal form of the organization rather
than the actual degree of fault of the member.” Fain v. O’Connell, 909 S.W.2d at
794-95.
The Tennessee Supreme Court’s Fain decision has prompted the Western
Section of this court to reverse at least one other summary judgment based on the
Shropshire reasoning. See Viles v. Kelly, App. No. 02A01-9508-CV-00186, 1996
WL 605158, at *2 (Tenn. Ct. App. Oct. 23, 1996) (No Tenn. R. App. P. 11 app.
filed). In light of the absence of pleading or proof that the McCrackens had any
responsibility for or right to control the design, construction, or maintenance of
the premises of the Brentwood United Methodist Church, the summary judgment
in this case must meet the same fate.
V.
We affirm the trial court’s decision to grant the McCrackens post-judgment
relief pursuant to Tenn. R. Civ. P. 60.02 and reverse the summary judgment
dismissing the McCrackens’ claims against the Brentwood United Methodist
Church. We also remand the case to the trial court for further proceedings
consistent with this opinion and tax the costs of this appeal to the Brentwood
United Methodist Church for which execution, if necessary, may issue.
____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
________________________________
SAMUEL L. LEWIS, JUDGE
________________________________
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BEN H. CANTRELL, JUDGE
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