Roberto Carlos Urtuzuastegui a/k/a Jose M. Carrion-Casillas v. George D. Kirkland

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 20, 2011 Session Heard at Memphis

ROBERTO CARLOS URTUZUASTEGUI

a/k/a Jose M. Carrion-Casillas

v.

GEORGE D. KIRKLAND, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-005324-08 Charles O. McPherson, Special Judge

No. W2010-01016-COA-R3-CV - March 17, 2011

This is an appeal from the trial court’s grant of summary judgment in favor of Appellees and

from the trial court’s grant of a Tennessee Rule of Civil Procedure 41.02(1) motion for

involuntary dismissal in favor of Appellees. The trial court granted both motions upon its

finding that Appellant had committed fraud upon the court in filing his complaint under an

assumed name. Specifically, the court granted the motion for summary judgment finding that

the statute of limitations had expired because the amended complaint did not relate back to

the original complaint, which the court determined was a nullity ab initio. The Rule 41.02

motion was granted based upon the court’s finding that the Appellant had perpetrated a fraud

upon the court in filing the complaint under an assumed name. Concluding that there is a

dispute of material fact as to whether Appellant committed fraud and, specifically, as to

whether Appellant’s alleged mental incapacity negates a finding of fraud, we reverse both

the order on the motion for summary judgment and the order granting the Rule 41.02 motion.

We remand for further hearing on the issues of fraud and mental incapacity. Reversed and

remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,

and H OLLY M. K IRBY, J., joined.

Michael C. Skouteris, Russell W. Lewis, IV, and William B. Walk, Jr., Memphis,

Tennessee, for the appellant, Roberto Carols Urtuzuastegui.

Carl Wyatt and Lewis W. Lyons, Memphis, Tennessee, for the appellees, George D. Kirkland

and Vickers Distributing and Transfer, Inc.

OPINION

The underlying facts of this case are undisputed. On June 12, 2008, Appellant

Roberto Carlos Urtuzuastegui was injured when his motorcycle collided with a truck driven

by George Kirkland, who was allegedly employed by Vickers Distribution and Transfer, Inc.

at the time of the accident.1 Mr. Urtuzuastegui is an undocumented worker who immigrated

from Mexico under the assumed name of Jose M. Carrion-Casillas. The police report for the

accident, the medical records, and all other documents relevant to this case have been made

in Mr. Urtuzuastegui’s assumed name.

On October 31, 2008, Mr. Urtuzuastegui filed suit against George D. Kirkland,

Vicker’s Distribution and Transfer, Inc., Vickers Logistics Services, Inc., Vickers Leasing

Services, L.L.C., and Vickers Warehousing Services, L. L. C. (together, “Vickers,” or

“Appellees”). Mr. Urtuzuastegui was allowed to amend his complaint on December 4, 2009

to include a prayer for punitive damages. Both the original complaint and the first amended

complaint are filed under Mr. Urtuzuastegui’s assumed name, Jose M. Carrion-Casillas. Mr.

Urtuzuastegui’s attorney allegedly did not know that the name Jose M. Carrion-Casillas was

an assumed name at the time of the filing of the original or first amended complaints. The

parties allegedly learned about the use of the assumed name on October 20, 2009, during a

discovery deposition. As a result of that discovery, on October 22, 2009, Vickers filed a

motion for summary judgment on the ground that “the instant lawsuit is brought in the name

of an individual who does not exist.” Consequently, Vickers argued that the allegedly

“fraudulent complaint filed under the false name Jose M. Carrion-Casillas is a nullity and did

not commence suit so as to toll the one year statute of limitations.” Concurrent with the

motion for summary judgment, Vickers also filed a separate motion for involuntary

dismissal under Tennessee Rule of Civil Procedure 41. As a basis for the Rule 41 motion,

Vickers asserted that:

[Mr. Urtuzuastegui] has willfully and intentionally initiated and

prosecuted this lawsuit under a false identity, and has been

untruthful under oath in his Responses to [the] First Set of

Interrogatories Propounded...in an attempt to conceal his true

identity. Specifically, the named Plaintiff, Jose M. Carrion-

Casillas, is not a real person. Not only did he use a false name

1

Vickers denies that it employed Mr. Kirkland, and denies that it owned the truck driven by Mr.

Kirkland.

-2-

to initiate and prosecute this lawsuit, he provided the same false

name in sworn discovery responses. In addition to providing a

false name in discovery responses, he also provided a false date

of birth and false Social Security Number. Thus, the

Interrogatory Answers were not signed by the person making

them. These transgressions are in direct violation of the

Tennessee Rules of Civil Procedure, including, without

limitation, Rules 8.01, 10.01, and 33.01.

In response to these motions, Mr. Urtuzuastegui moved the court for leave to file a

second amended complaint to “cure a misnomer.” Specifically, Mr. Urtuzuastegui couched

his use of an “alias” as a “mistake.” Mr. Urtuzuastegui also supplemented his interrogatory

responses to reflect his given name. Vickers opposed the motion to amend the complaint.

On November 30, 2009, the trial court allowed the amendment. In granting the motion, the

court stated, in relevant part, that:

The Court finds that given the liberal construction of Rule 15 of

the Tennessee Rules of Civil Procedure, Plaintiff’s Motion to

Amend is well taken and should be granted. The Court further

finds that Defendants may then address any issues related to the

Amendment including but not limited to its relation back to the

original filing....

On December 4, 2009, Mr. Urtuzuastegui filed his second amended complaint, which

adds his birth name and subordinates the previously used assumed name to a mere alias.

Vickers’ motions proceeded to hearing on December 10, 2009. At that hearing,

Vickers primarily relied upon two cases, Zocaras v. Castro, 465 F.3d 479 (11 th Cir. 2006)and

Dotson v. Bravo, 321 F.3d 663 (7th Cir. 2003) as authority for its position. We will discuss

these cases in more detail below; however, based upon these cases, Vickers argued that the

mere fact that Mr. Urtuzuastegui’s original complaint was filed under an assumed name

should, ipso facto, render that complaint a nullity ab initio. In response, Mr. Urtuzuastegui’s

attorney asserted that, because of the severity of his injuries, Mr. Urtuzuastegui was

incapacitated at the time of the filing of the original complaint as well as at the time the first

set of interrogatories were answered. Based upon his alleged incapacity, Mr. Urtuzuastegui’s

attorney argued that the use of the assumed name was not fraudulent, but rather a mistake

that Mr. Urtuzuastegui sought to cure when his capacity was restored. In support of this

argument, Mr. Urtuzuastegui provided the court with the affidavits of several medical

professionals who stated, in relevant part, that, for at least the first eight months after the

accident, Mr. Urtuzuastegui: (1) “was heavily medicated,” which impaired his cognition, (2)

-3-

“had a language, receptive and expressive language disorder,” (3) had “severe brain

damage,” and (4) had “horrendous pain syndrome,” which would prevent normal cognition.

Based upon these alleged medical problems, Mr. Urtuzuastegui’s attorney argued that his

client could not have committed an intentional fraud upon the court and that there was at

least a question of material fact as to whether Mr. Urtuzuastegui’s condition excused the

filing of the complaint under his assumed name. The trial court, however, was unpersuaded

by Mr. Urtuzuastegui’s argument and, by order of December 18, 2009, it granted Vickers’

motion for summary judgment, specifically holding that:

The Court finds that the Plaintiff’s original complaint was filed

in the name of a wrongful person, and as such, the filing of the

original complaint constitutes a nullity. As such, the Court finds

that the Second Amended Complaint, which substitutes the

actual name of the Plaintiff, came well after the statute of

limitations had expired, and Plaintiff’s Amended Complaint is

time barred.

The court’s December 18, 2009 order incorporates, by reference, the court’s

statements from the bench. In relevant part, the court states:

[It] is obvious to this Court that this gentleman [i.e., Mr.

Urtuzuastegui] came into this country illegally and elected a

fictitious name to operate under even to the point of getting a

marriage license in that name [i.e., his assumed name, Jose M.

Carrion-Casilas] when he well knew at that time that that was

not his name; getting a driver’s license in that name, when he

knew well that it was not his name.

It appears to the Court that when he started trying to

correct this situation was after he got caught....

So, after consideration of all of the evidence that was

submitted by the plaintiff and all of the cases that both sides

have submitted, the Court must find that this was a fraud upon

the Court and it doesn’t matter whether it was intentional[] or

not intentional[] if it is a fraud upon the Court.

This man [i.e., Mr. Urtuzuastegui] set this wheel in

motion when he came into this country illegally and selected a

name that he well knew was not his name; selected a Social

Security number, that he well knew was not his Social Security

number.

So, the first filing of the first suit then constitutes a

-4-

nullity. And therefore the filing of the [amended

complaint]...comes well after the statute of limitations had

passed.

So the Court is going to grant the motion to dismiss on

the basis of a nullity and on the basis that the statute of

limitations has barred.

Counsel for Vickers then asked the trial court for clarification as to whether it was

granting the motion for summary judgment or the Tennessee Rule of Civil Procedure 41

motion to dismiss. The court explained that “[b]oth motions [are] granted,” and stated that

“[t]he involuntary dismissal is based on the fraud that was perpetuated in the filing of the suit

in the wrongful name,” and that the grant of summary judgment is “based on the statute of

limitations.” Vickers’ attorney prepared an order on the summary judgment and a separate

order on the Rule 41 dismissal. The trial court entered the summary judgment order (see

supra order of December 18, 2009), but declined to enter the Rule 41 order at that time. The

court reasoned that, given the grant of summary judgment, the Rule 41 order was

unnecessary. Because the court had only entered the summary judgment order, the issue was

narrowed to the consideration of Tennessee Rule of Civil Procedure 56. Accordingly, on

January 15, 2010, Mr. Urtuzuastegui filed a motion to alter or amend the order granting

summary judgment under Tennessee Rule of Civil Procedure 59.

Mr. Urtuzuastegui’s Rule 59 motion was heard on March 3, 2010. By Order of March

15, 2010, the court denied Mr. Urtuzuastegui’s motion. The court’s order incorporates, by

reference, its ruling from the bench made at the March 3, 2010 hearing. Although the court

had only entered the order on the motion for summary judgment, at the end of the March 3,

2010 hearing, counsel for Vickers reminded the court of its previous ruling, at the December

10, 2009 hearing (supra), wherein it orally granted both the motion for summary judgment

and the Rule 41 motion for involuntary dismissal. Vickers’ attorney explained to the court

that it had only entered the order on the motion for summary judgment, and asked the court

to enter the order granting the Rule 41 motion so that both orders could be reviewed by this

Court on appeal. Counsel for Mr. Urtuzuastegui objected, arguing that Tennessee Rule of

Civil Procedure 41.02 contemplates dismissal of cases for violation of a court order, which

Mr. Urtuzuastegui had not done. The court was not persuaded by this argument and on

March 3, 2010, entered its order granting Vickers’ motion for involuntary dismissal under

Tennessee Rule of Civil Procedure 41. In response, Mr. Urtuzuastegui filed a Rule 59

motion to alter or amend the order granting involuntary dismissal. Like the Rule 59 motion

on the grant of summary judgment, this motion was also denied by the trial court.

Mr. Urtuzuastegui appeals, raising one issue for review as stated in his brief:

-5-

Is there any genuine issue of material fact as to whether the

statute of limitations was tolled during Mr. Urtuzuastegui’s

medical incapacity.

As detailed above, this case presents us with a rather convoluted procedural history,

wherein the trial court allowed Mr. Urtuzuastegui to file a second amended complaint to

reflect his proper name, then ostensibly reversed that decision by finding that the original

complaint, which was filed under the assumed name, was a nullity based upon fraud

perpetrated by Mr. Urtuzuastegui. Consequently, the court reasoned that the second amended

complaint did not relate back to the original complaint because it was void ab initio, and that

the suit was, therefore, barred by the one year statute of limitations. To further complicate

matters, the court granted Vickers’ motions for both summary judgment and involuntary

dismissal from the bench, but then declined to enter the order on the involuntary dismissal.

Then, after the hearing on Mr. Urtuzuastegui’s Rule 59 motion addressing only the grant of

summary judgment, the court changed its mind and entered the order granting the involuntary

dismissal, which put Mr. Urtuzuastegui in the position of having to file a second Rule 59

motion based on the Rule 41 dismissal.

Summary Judgment

A trial court's decision to grant a motion for summary judgment presents a question

of law. Our review is therefore de novo with no presumption of correctness afforded to the

trial court's determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). “This Court

must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been

satisfied.” Mathews Partners, LLC v. Lemme, No. M2008-01036-COA-R3-CV, 2009 WL

3172134, at *3 (Tenn. Ct. App. Oct. 2, 2009) (citing Hunter v. Brown, 955 S.W.2d 49, 50-51

(Tenn. 1977)).

When a motion for summary judgment is made, the moving party has the burden of

showing that “there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may

accomplish this by either: (1) affirmatively negating an essential element of the non-moving

party's claim; or (2) showing that the non-moving party will not be able to prove an essential

element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). However,

“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or

shutup’ or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the

moving party's motion is properly supported, “[t]he burden of production then shifts to the

nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd

v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The non-moving party may accomplish this by:

“(1) pointing to evidence establishing material factual disputes that were overlooked or

-6-

ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;

(3) producing additional evidence establishing the existence of a genuine issue for the trial;

or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.

R. Civ. P., Rule 56.06.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)

(citations omitted).

When reviewing the evidence, we must determine whether a factual dispute exists.

“Summary judgment procedure is not a substitute for trial. It is only when there is no

disputed issue of material fact that a summary judgment should be granted. If such fact issue

is present, the matter must not be resolved by a battle of affidavits, but must be resolved by

a trial on the merits.” Stone v. Hinds, 541 S.W.2d 598, 599 (Tenn. Ct. App. 1976) (citations

omitted). In evaluating the trial court's decision, we review the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in the nonmoving

party's favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed

fact, we must “determine whether the fact is material to the claim or defense upon which

summary judgment is predicated and whether the disputed fact creates a genuine issue for

trial.” Mathews Partners, LLC, 2009 WL 3172134, at *3 (citing Byrd, 847 S.W.2d at 214).

“A disputed fact is material if it must be decided in order to resolve the substantive claim or

defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists

if “a reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id.

“Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion.” Landry v. S. Cumberland Amoco, et al,

No. E2009-01354-COA-R3-CV, 2010 WL 845390, at *3 (Tenn. Ct. App. March 10, 2010)

(citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995)).

The trial court’s ruling on both the motion for summary judgment and the motion for

involuntary dismissal rests upon the court’s assessment that Mr. Urtuzuastegui committed

a fraud upon the court in using an assumed name to file his case. Specifically, the statute of

limitations ground that the court states as its reason for the grant of summary judgment

hinges upon whether the initial complaint was void ab intio due to Mr. Urtuzuastegui’s fraud.

The elements of positive fraud are that: (1) the representation must have been made as to an

existing fact, which is false and material; (2) knowledge of the falsity (i.e., it was made

knowingly or without belief in its truth, or recklessly without regard to whether it is true or

false); and (3) the party asserting fraud must have reasonably relied upon the representation

to his or her detriment. See, Black v. Black, 166 S.W.3d 699, 705 (Tenn. 2005) (quoting

Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66–67 (Tenn. 2001)). Where a claim

of fraud is presented, the issue ordinarily can only be developed upon a full trial of the action.

See Fowler v. Happy Goodman Family, 575 S.W.2d 496 (Tenn. 1978). As a general rule,

summary judgment is not an appropriate procedure for the disposition of issues related to

fraud. See Long v. State Farm Fire & Casualty Co., 510 S.W.2d 517, 519 (Tenn. Ct.

-7-

App.1974). Nevertheless, it is incumbent upon the party asserting fraud to produce some

competent and material evidence legally sufficient to support his or her claim or defense. Id.

In short, fraud is never presumed and, where it is alleged, facts sustaining it must be clearly

made out. Hiller v. Hailey, 915 S.W.2d 800, 802 (Tenn. Ct. App. 1995).

In its motion for summary judgment, Vickers relies upon the complaint, and amended

complaint, which were filed under Mr. Urtuzuastegui’s assumed name. Vickers also relies

upon Mr. Urtuzuastegui’s answers to interrogatories, wherein he failed to clarify his given

name. Vickers contends that there is no dispute of material fact that Mr. Urtuzuastegui filed

those pleadings under an assumed name and no dispute that he further perpetrated his fraud

by failing to truthfully answer discovery. In response, Mr. Urtuzuastegui filed the affidavits

of three of his doctors regarding his medical condition. Dr. Carolyn Chambers, a certified

brain injury specialist at the Regional Medical Center’s Traumatic Brain Injury Services

Department states that, in June 2008, she received a referral for Mr. Urtuzuastegui following

his accident. Dr. Chambers stated her assessment of his condition as follows:

6. The CT scan of the head taken...on June 12, 2008...showed

a left partial-occipital subdural hematoma measuring 5.7 mm in

maximum diameter with an associated 3.5 mm left to right

midline shift. There is also a small intraparenchymal

hemorrhage in the right parietal lobe high on convexity, trace

blood along the flax, and left occipital condyle fracture.

Dr. Shelly Timmons, who is board certified in the field of neurosurgery, was consulted

regarding Mr. Urtuzuastegui’s head injury. According to her affidavit, during his hospital

stay (June 12, 2008 until July 3, 2008), Dr. Timmons observed that Mr. Urtuzuastegui “was

suffering from significant neurological deficits, i.e., short-term memory,

attention/concentration, cognition, and focus, even after resolution of the subdural

hematoma.” Dr. Timmons continued to see Mr. Urtuzuastegui after his release from the

hospital. During this time, Dr. Timmons observed:

9. [A]s I continued to follow him [i.e., Mr. Urtuzuastegui] after

discharge from the Regional Medical Center, [Mr.

Urtuzuastegui] continued to suffer from significant impairments

to his cognition, memory, attention and other mental capabilities

for the next six to nine months.

10. As the patient improved with respect to his traumatic brain

injury after this nine month period post injury, my primary focus

turned to the severe planplexopathy of the right brachial plexus

-8-

and the related pain syndrome. I believed that his traumatic

brain injury symptoms would continue to improve over the next

several month, and I recommended various modalities such as

occupational therapy for his brachial plexus injury.

11. As expected, over the next several months, and specifically

on October 20, 2008, I noted “decreased attention and memory,”

but [Mr. Urtuzuastegui] was making gradual improvement.

12. At the following visit, on January 5, 2009, I documented

that “his short term memory is unchanged and still fairly poor

per his wife and per him.” However, I expected continued

memory and cognitive impairments at this juncture and, was,

thus, not alarmed by these reports.

13. At this point, six months post-injury, I considered his

residual cognitive and memory impairments to be long-term.

Nevertheless, I was encouraged by the progress and

improvement to the cognitive and memory impairments which

had occurred from June 2008 to January 2009.

* * *

20. It is also my opinion within a reasonable degree of medical

certainty, that for several months following the accident (noted

as recent[ly] as January 5, 2009 office note), Mr.

[Urtuzuastegui] suffered from substantial cognitive, memory

and attention deficits.

21. It is further my opinion that Mr. [Urtuzuastegui’s] ability to

understand, appreciate and focus on his legal affairs during this

period of recovery would have been impaired due to the brain

injury.

22. Apart from the brain injury, Mr. [Urtuzuastegui] was

suffering from depression and severe neuropathic pain, both of

which would have also interfered with his focus and attention.

Dr. Deflumere [see discussion of Dr. Deflumere’s affidavit,

infra] was treating Mr. [Urtuzuastegui] for these conditions.

-9-

* * *

24. Mr. [Urtuzuastegui’s] physical injuries (including the loss

of use of his right hand and arm) and his mental impairments

rendered him substantially unable to care for himself or to

manage his personal business during the period of time in which

he was recovering from his catastrophic physical injuries and

brain damage.

Dr. Charlotte A. Deflumere, who specializes in the treatment and management of

chronic pain, began treating Mr. Urtuzuastegui on July 22, 2008. In relevant part, Dr.

Deflumere stated, in her affidavit, that:

7. For the first six months, [Mr. Urtuzuastegui] was maintained

on high dose[s] of opiates due to his severe neuropathic pain and

post-operative pain with the continued need for surgery.

Chronic pain syndromes of this magnitude do adversely impact

an individual’s ability to think, concentrate, and reason.

8. Most recently, I prescribed and maintained Mr.

[Urtuzuastegui] on Methodone...MS Contin...Morphine

Sulphate...Trazadone...Neurontin...and Pristiq....

9. The side effects of these medication[s]...are numerous,

including drowsiness, dizziness, confusion and other adverse

effects on cognition, memory and attention.

* * *

11. Between the traumatic brain injury, side effects of the

medications and the depression, I noticed Mr. [Urtuzuastegui]

having difficulty with recalling information and expressing his

thoughts to me, particularly in the first six months after the

injury.

* * *

17. It is my opinion within a reasonable degree of medical

certainty, that for several months following the accident, Mr.

[Urtuzuastegui] suffered from substantial cognitive, memory

-10-

and attention deficits....

18. It is further my opinion that Mr. [Urtuzuastegui’s] ability to

understand, appreciate and focus on legal or business matters

during the first six months post-accident would have been

impaired due to his brain injury, depression and side effects of

his medication.2

While Vickers asserts that Mr. Urtuzuastegui’s long-standing practice of using his

assumed name in all of his business and legal dealings shows a pattern of behavior that was

continued in the filing of the instant lawsuit, we cannot discount the testimonies of Mr.

Urtuzuastegui’s treating physicians concerning his capacity. While it is an undisputed fact

that Mr. Urtuzuastegui used his assumed name almost exclusively in his dealings, we are

concerned only with the use of the assumed name in the filing of this lawsuit, and

specifically, whether Mr. Urtuzuastegui committed a fraud in this case. From the trial court’s

statements from the bench, which were incorporated into its order (see supra), it appears that

it focused on Mr. Urtuzuastegui’s use of his assumed name from the time he entered this

country. While we may concede that Mr. Urtuzuastegui’s use of his assumed name in

various other circumstances constitutes illegal acts or even fraud, based upon the opinions

of his medical team, and from reading those affidavits in the light most favorable to Mr.

Urtuzuastegui, we conclude that there is a dispute of material fact as to whether Mr.

Urtuzuastegui’s alleged fraud in filing this lawsuit was negated, or at least mitigated, by his

lack of capacity. This is a question that the trial court failed to address. Given the affidavits

of the doctors in this case, we conclude that there is a dispute of material fact on the issue of

Mr. Urtuzuastegui’s mental capacity and its effect on the alleged fraud perpetrated in the

filing of this lawsuit. Consequently, we conclude that the trial court erred in granting

Vickers’ motion for summary judgment in light of the dispute of material fact.

The Vickers also contend that the issue of capacity was not properly before the trial

court because Mr. Urtuzuastegui failed to specifically plead the defense. While a plaintiff

asserting incapacity sufficient to toll the statute of limitations is usually required to

specifically plead that defense, see, e.g., Gross v. Disney, 32 S.W. 632 (Tenn. 1895); accord

Jones v. Coal Creek Mining & Mfg. Co., 180 S.W. 179, 184 (Tenn. 1915), in the instant

case, Mr. Urtuzuastegui did not initially set out to toll the statute of limitations based upon

his lack of capacity. Rather, at the time of the filing of the original complaint, Mr.

Urtuzuastegui was within the relevant statute of limitations. It was only when Vickers, in the

2

We note that, in their respective affidavits, all three doctors refer to Mr. Urtuzuastegui by his

assumed name, Jose M. Carrion-Casillas. Mr. Urtuzuastegui was admitted to the hospital under his assumed

name.

-11-

motion for summary judgment and the Rule 41.02 motion, asserted that Mr. Urtuzuastegui’s

initial complaint (and first amended complaint) was void ab inito based upon fraud, that the

issue of Mr. Urtuzuastegui’s mental capacity became relevant. So, in short, Mr.

Urtuzuastegui averred lack of capacity in response to the motions filed by Vickers and not

as a defense in his initial pleading. Consequently, we conclude that the issue of lack of

capacity was properly before the trial court.

Tennessee Rule of Civil Procedure 41.02 motion

Although we have determined above that the trial court erred in granting Vickers’

motion for summary judgment based upon the dispute of material fact concerning Mr.

Urtuzuastegui’s mental capacity, because the trial court also granted Vickers’ Rule 41.02

motion, we must now determine whether the trial court was correct in so doing.

In Tennessee, trial courts have inherent authority to control cases on their dockets and,

when it appears that a plaintiff is prosecuting a case in bad faith, dismissal is appropriate.

See Alexander v. Jackson Radiology Associates, P.A., 156 S.W. 3d 11 (Tenn. Ct. App.

2004). Accordingly, Tennessee Rule of Civil Procedure 41.02 provides for dismissal of a

lawsuit for failure to comply with the Rules of Civil Procedure:

Involuntary Dismissal —Effect Thereof. — (1) For failure of

the plaintiff to prosecute or to comply with these rules or any

order of court, a defendant may move for dismissal of an action

or of any claim against the defendant.

A trial court’s decision to dismiss under Tennessee Rule of Civil Procedure 41.02(1)

is reviewed under an abuse of discretion standard. See Hodges v. Attorney General, 43 S.W.

3d 918, 921 (Tenn. Ct. App. 2000). In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524

(Tenn. 2010), Justice Koch succinctly stated this Court’s role when asked to review a

question involving the trial court’s discretion:

Discretionary decisions must take the applicable law and

the relevant facts into account. An abuse of discretion occurs

when a court strays beyond the applicable legal standards or

when it fails to properly consider the factors customarily used to

guide the particular discretionary decision. A court abuses its

discretion when it 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.

-12-

To avoid result-oriented decisions or seemingly

irreconcilable precedents, reviewing courts should review a

lower court's discretionary decision to determine (1) whether the

factual basis for the decision is properly supported by evidence

in the record, (2) whether the lower court properly identified and

applied the most appropriate legal principles applicable to the

decision, and (3) whether the lower court's decision was within

the range of acceptable alternative dispositions. When called

upon to review a lower court's discretionary decision, the

reviewing court should review the underlying factual findings

using the preponderance of the evidence standard contained in

Tenn. R. App. P. 13(d) and should review the lower court's legal

determinations de novo without any presumption of correctness.

Lee Medical, 312 S.W.3d at 524-25 (citations omitted).

In Langlois v. Energy Automation Systems, No. M2009-00225-COA-R3-CV, 2009

WL 4931372 (Tenn. Ct. App. Dec. 21, 2009) this Court cautioned that:

Dismissal for failure to prosecute or failure to abide by

discovery rules is a severe sanction that runs counter to the

judicial system's general objective of disposing of cases on the

merits; for this reason, the judiciary generally favors lesser

sanctions when appropriate.

Id. at *1.

In discussing the Federal counterpart (i.e., Fed. R. Civ. P. 41(b)) to Tennessee Rule

of Civil Procedure 41.02(1), our sister courts have likewise cautioned that, although Rule

41(b) makes clear that a trial court has discretion to impose sanctions on a party who fails to

adhere to court rules, that discretion is not unlimited, and the “[d]ismissal of a case with

prejudice is considered a sanction of last resort, applicable only in extreme circumstances.”

Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). Dismissal with prejudice is not

proper unless “the district court finds a clear record of delay or willful conduct and that lesser

sanctions are inadequate to correct such conduct.” Betty K Agencies, Ltd. v. M/V MONADA,

432 F.3d 1333, 1339 (11th Cir. 2005). Mere negligence or confusion is not sufficient to

justify a finding of...willful misconduct. McKelvey v. AT & T Techs., Inc., 789 F.2d 1518,

1520 (11th Cir. 1986).

In its argument that the trial court was correct in granting the Rule 41.02 motion in

-13-

this case, Vickers relies upon the case of Zocaras v. Castro, 465 F.3d 479 (11 th Cir. 2006).

Zocaras was a Section 1983 case filed by the plaintiff against several arresting officers. The

Zocaras plaintiff, like Mr. Urtuzuastegui, filed his suit under an assumed name. Id. The

Zocaras plaintiff, like Mr. Urtuzuastegui, was deposed and, while under oath, again gave a

false name. Id. When the use of his assumed name was discovered, the Zocaras plaintiff,

like Mr. Urtuzuastegui, tried to amend his complaint to add his real name. Id. Moreover, the

Zocaras plaintiff, like Mr. Urtuzuastegui, had a history of using an assumed name. The

Zocaras Court held that, although the plaintiff possibly had a cause of action using his real

name, when he attempted to perpetrate a fraud on the Court in filing suit under his assumed

name, he lost that potential claim. In reaching its decision, the Zocaras Court specifically

stated that:

A trial is not a masquerade party nor is it a game of judicial

hide-n-seek where the plaintiff may offer the defendant the

added challenge of uncovering his real name. We sometimes

speak of litigation as a search for the truth, but the parties ought

not have to search for each other's true identity. Rule 10(a)

requires that the name of the parties be disclosed in the

complaint; Rule 11 forbids lying in pleadings, motions, and

other papers filed with the court; and Rule 41(b) provides for

dismissal with prejudice as the ultimate sanction for violation of

the rules. Fed. R. Civ. Pro. 10(a); Fed. R. Civ. Pro. 11; Fed. R.

Civ. Pro. 41(b).

Zocaras v. Castro, 465 F.3d at 484.

Vickers further relies upon the case of Dotson v. Bravo, 321 F.3d 663 (7th Cir. 2003),

wherein the Illinois court dismissed a plaintiff’s case after it was discovered that the lawsuit

had been filed under a false name. In its ruling, the Dotson court states, in relevant part:

Filing a case under a false name deliberately, and without

sufficient justification, certainly qualifies as flagrant contempt

for the judicial process and amounts to behavior that transcends

the interests of the parties in the underlying action....The instant

case represents precisely the situation where one party's conduct

so violates the judicial process that imposition of a harsh penalty

is appropriate not only to reprimand the offender, but also to

deter future parties from trampling upon the integrity of the

court.

-14-

Dotson, 321 F. 3d 668.

Although the facts of Zocaras and Dotson are certainly similar to those presented in

the case at bar, there is one distinction between Zocaras and Dotson and the instant appeal.

In Zocaras and Dotson, there was no allegation that either of the plaintiffs lacked capacity.

Consequently, the Zocaras and Dotson Courts had no basis on which to find that the

plaintiffs’ actions in filing their respective lawsuits under their assumed names was anything

but willful. Here, and as discussed in detail above, Mr. Urtuzuastegui asserts that his use of

an assumed name was a “mistake,” a “misnomer,” caused by his mental incapacity at the time

of the filing of the lawsuit. This case is, therefore, distinguishable from both Zocaras and

Dotson. In order for fraud to rise to a level requiring dismissal of a lawsuit under Rule 41,

it must be willful or intentional fraud. As discussed in relation to the grant of the motion for

summary judgment, there is a dispute of material fact as to whether Mr. Urtuzuastegui, in

fact, lacked capacity at the time of the filing of his complaint. Given the dispute of material

fact on the issue of capacity, the trial court should have developed the record further on this

question. Consequently, and based upon the entire record in this case, it is this Court’s

conclusion that the involuntary dismissal, under Tennessee Rule of Civil Procedure 41.02,

was premature.

For the foregoing reasons, we reverse both the trial court’s order granting Appellees’

motion for summary judgment, and its order granting Appellees’ motion for involuntary

dismissal under Tennessee Rule of Civil Procedure 41.02. We remand the case to the trial

court for such further proceedings as may be necessary and consistent with this Opinion.

Costs of this appeal are assessed one-half to the Appellant Roberto Carlos Urtuzuastegui

a/k/a Jose M. Carrion-Casillas, and his surety, and one-half to the Appellees, George D.

Kirkland, Vicker’s Distribution and Transfer, Inc., Vickers Logistics Services, Inc., Vickers

Leasing Services, L.L.C., and Vickers Warehouse Services, L.L.C., for which execution may

issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

-15-