In Dry v. Steele, the Tennessee Court of Appeals grappled with a procedural nightmare, including three related lawsuits separate from the one actually on appeal – a medical malpractice case, an action for interference with service of process, and a malicious prosecution case. Putting aside the morass of ancillary issues, the Court of Appeals’ holding was distinct: a notice of appeal on behalf of a deceased pro se litigant is ineffective if filed by someone who has not yet been officially appointed to represent the estate.
The plaintiff in the case on appeal was a lawyer who died two weeks after filing his own pro se lawsuit. The defendants filed a suggestion of death and served it at the plaintiff’s law firm address. The decedent’s wife was also his law partner – and either the decedent’s co-counsel, co-plaintiff, or co-defendant in the other three related cases. The decedent’s wife did not file a motion to substitute a proper party for the decedent, and informed the trial court that she was not representing the decedent or his estate, but nonetheless asked that the case not be dismissed. The trial court dismissed the case under Tenn. R. Civ. P. 25.01(1).
That’s where the case went from complicated to just bewildering. After the judgment for dismissal was entered, the decedent’s wife filed a notice of appearance as counsel for the decedent. She then filed a notice of appeal within the thirty day window to do so under Tenn. R. App. P. 4(a). After those thirty days had passed, however, the decedent’s wife had an estate opened for the decedent and was appointed administrator, then retained herself as counsel to represent the estate in the case.
The Court of Appeals ruled that the notice of appeal was not properly filed. At the time the decedent’s wife filed the notice of appearance as counsel, there was no estate open and no administrator had been appointed. Accordingly, the wife could not have been retained by anyone with the power to actually appoint counsel to represent the estate. The Court of Appeals concluded that the notice of appearance filed by the wife was ineffective, and therefore the wife did not have standing to file the notice of appeal. Because no one with proper standing filed a notice of appeal within the thirty day window of Tenn. R. App. P. 4(a), the Court of Appeals affirmed the dismissals.
Since the decedent’s wife was both spouse and lawyer, this case sets the bounds of precedent fairly well. Before filing a notice of appeal for a deceased pro se litigant, an estate must be opened and an administrator formally appointed. Neither the beneficiary of the pending lawsuit, nor any lawyer retained by the beneficiary, can effectively file a notice of appeal otherwise.
The case number is No. E2013–00291–COA–R3–CV; the case was decided January 28, 2014.