Linda Beard v. James William Branson - Rehear

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

LINDA BEARD V. JAMES WILLIAM BRANSON ET AL.

Circuit Court for Houston County

No. 1368

No. M2014-01770-COA-R3-CV – Filed April 26, 2016

OPINION ON PETITION TO REHEAR

In an opinion filed on March 31, 2016, we reversed the judgment of the trial court

on the grounds that the wrongful death claims were barred by the statute of limitations

because the only complaint filed prior to the running of the limitations period was void.

The appellee, Linda Beard (“Plaintiff”), timely filed a petition for rehearing pursuant to

Tenn. R. Civ. P. 39 in which she contends the filing of the pro se complaint by the

decedent‟s surviving spouse, Denver Hartley, tolled the statute of limitations even if his

filing constituted the unauthorized practice of law. She also contends the pro se complaint

filed by Mr. Hartley was voidable, not void; therefore, the deficiency could be remedied

pursuant to Tenn. R. Civ. P. 11. Further, she contends the amended complaint, which was

duly signed by a licensed attorney, should relate back to the filing of Mr. Hartley‟s pro se

complaint pursuant to Tenn. R. Civ. P. 17.01.

Plaintiff contends we erroneously relied on Bivins v. Hosp. Corp. of Am., 910

S.W.2d 441 (Tenn. Ct. App. 1995), to conclude that the complaint filed by Mr. Hartley

did not toll the running of the statute of limitations. We acknowledge, as Plaintiff

correctly states, that “Bivins was not a statute of limitations case.” Nevertheless, Bivins

and other authorities identified in our opinion, clearly hold that a jurisdictional notice or

jurisdictional pleading, such as a notice of appeal or complaint, filed by a non-attorney in

a representative capacity is a nullity. See id. at 447 (citing 7 C.J.S Attorney and Client §

31, p. 869, n.13 & n.20) (holding that “the purported notice of appeal” unsigned by the

appellant or by a duly authorized attorney at law was a nullity); Investors Grp., I Ltd. v.

Knoxville’s Cmty. Dev. Corp., No. E1999-00395-COA-R3-CV, 2001 WL 839837, at *2

(Tenn. Ct. App. July 25, 2001) (holding that a complaint filed on behalf of a limited

partnership and signed only by a non-attorney was “void”); Vandergriff v. ParkRidge E.

Hosp., No. E2014-02253-COA-R3-CV, __S.W.3d__, 2015 WL 9943593, at *4 (Tenn.

Ct. App. Aug. 21, 2015) (stating that proceedings in a suit by a person not entitled to

practice law are a “nullity”). Because the complaint filed by Mr. Hartley was a nullity, it

did not toll the running of the statute of limitations.

Plaintiff also contends we erroneously relied on Investors Group, I Ltd., 2001 WL

839837, in holding that the pro se complaint filed by Mr. Hartley was void instead of

being voidable. In Investors Group we affirmed the trial court‟s dismissal of the

complaint as being “void” because the complaint, which was filed on behalf of a limited

partnership, Investors Group, I Ltd., was signed by a non-lawyer, Roger Cameron, who

was acting in a representative capacity. Id. at *2. The dispositive facts and the relevant

portion of the court‟s ruling read as follows:

At the outset, it is necessary to observe that the plaintiff is a Tennessee

Limited Partnership styled Investors Group I, Ltd. Roger Cameron,

described as the sole General Partner, is not a party to this action. He signed

and filed the complaint on behalf of Investors Group I, Ltd. He is not an

attorney. If Investors Group I, Ltd. is a legal entity, it cannot appear pro se.

***

We hold that a Limited Partnership is an entity under Tennessee law, and

that a general partner, who is not a licensed attorney, cannot sign and file a

complaint on its behalf, pursuant to the mandates of Old Hickory

Engineering and Mach. Co. Inc., supra. We therefore agree with the

Chancellor that the complaint is void. The appearance of counsel 53 days

after service of the motion to dismiss did not satisfy the requirement of

promptness in curing the defect. Cf. Old Hickory, supra wherein the lapse

was 37 days, and Doyle Shirt Mfg. Corp. v. O’Mara, 1999 Tenn. App.

Lexis 230, wherein the lapse was 45 days.

Id.

Although the trial court found the Investors Group complaint “void,” and we

affirmed that ruling, Plaintiff contends that the last sentence in the above quote rendered

the complaint in that case voidable, not void. We respectfully disagree.

Plaintiff notes in her petition for rehearing that, “if the Court had intended to hold

the filing of such a complaint void ab initio, there would have been no reason to assess

the promptness of any effort to remedy the deficiency.” In the Investors Group opinion,

the promptness of a remedial effort was not germane to the dispositive issue, nor was the

statement regarding promptness necessary in our affirmance of the trial court‟s ruling that

the complaint was void; therefore, it was dicta. See Bellar v. Nat’l Motor Fleets, Inc., 450

S.W.2d 312, 313-14 (Tenn. 1970) (“Dictum is an opinion expressed by a court upon

some question of law which is not necessary to the decision of the case before it.”).

“Court decisions must be read with special reference to the questions involved and

necessary to be decided, and language used which is not decisive of the case or decided

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therein is not binding as precedent.” Shepherd Fleets, Inc. v. Opryland USA, Inc., 759

S.W.2d 914, 922 (Tenn. Ct. App. 1988) (citing Rush v. Chattanooga DuPont Emp. Credit

Union, 358 S.W.2d 333 (Tenn. 1962)). Therefore, the unnecessary statement regarding

prompt remedial action in the Investors Group opinion has no precedential value.

Moreover, we respectfully disagree with the notion that a void complaint, one that is a

nullity, can be remedied. For the foregoing reasons, we respectfully disagree with

Plaintiff‟s contention that the Investors Group complaint was “voidable” for such an

interpretation is in direct conflict with the trial court‟s ruling that the complaint was

“void,” which ruling we affirmed.

Plaintiff also relies on Old Hickory Engineering & Machine Company, Inc. v.

Henry, 937 S.W.2d 782 (Tenn. 1996), wherein our Supreme Court stated that the 1995

amendment to Tenn. R. Civ. P. 11 provides: “An unsigned paper shall be stricken unless

omission of the signature is corrected promptly after being called to the attention of the

attorney or party.” Id. at 786. Significantly, however, the court expressly stated that the

“amendment is not applicable to this case.” Because the amendment to Tenn. R. Civ. P.

11 was not applicable to the issues on appeal in Old Hickory, it is not binding as

precedent. See Rush, 358 S.W.2d at 350 (“Every decision must be read with special

reference to the questions involved and necessary to be decided, and language used not

decisive of the case or decided therein is not binding as a precedent.”); see also Shepherd

Fleets, Inc., 759 S.W.2d at 922. Nevertheless, we respect the statement by the Supreme

Court in Old Hickory that the 1995 amendment to Tenn. R. Civ. P. 11 “is declarative of

the policy and practice regulating court proceedings in that particular.”1 Old Hickory

Eng’g & Mach. Co., Inc., 937 S.W.2d at 786.

The foregoing notwithstanding, we believe the dispositive factor is whether the

“unsigned paper” or “pleading” to be amended pursuant to Rule 11 is a “jurisdictional”

paper or pleading, such as a complaint or notice of appeal, or a non-jurisdictional paper

1

The relevant portion of the Supreme Court ruling in Old Hickory reads:

Based on the principle declared by this amendment, the status of the complaint on the

date it was filed was as though it contained no signature, and, because of that deficiency,

it was subject to being stricken from the record. The construction most favorable to the

plaintiff in this case is that the plaintiff was notified of the fatal deficiency in the

complaint by the defendant‟s motion to dismiss on April 13, 1994, and the plaintiff took

no action until its attorney filed a notice of appearance on May 20, 1994. That is not

“prompt” action. In addition, filing notice of appearance did not correct the deficiency.

Merely advising the court of representation did not constitute the certification required by

the rule. The action by the plaintiff‟s lawyer did not cure the deficiency in time or

substance.

Old Hickory Eng’g & Mach. Co., Inc., 937 S.W.2d at 786.

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or pleading that is filed after the trial court has obtained jurisdiction.2 The point being,

although an unsigned paper filed in the latter situation has no bearing on the court‟s

authority to hear a case, if the “unsigned paper” is a jurisdictional notice of appeal or

complaint, then the court does not obtain jurisdiction over the matter. See Bivins, 910

S.W.2d at 447; see also Vandergriff, 2015 WL 9943593, at *6. For example, in

Vandergriff we concluded that a complaint signed only by a non-lawyer who was

attempting to assert the claim of another in a representative capacity was void, a nullity,

and of no legal effect and, because the complaint was void, the trial court never obtained

jurisdiction. See Vandergriff, 2015 WL 9943593, at *5-6. As we explained:

Something that is “void” has no legal effect. See Black‟s Law Dictionary

1349 (9th ed.2010). Another legal dictionary defines “void” as “absolutely

null,” going on to describe an order that is “void ab initio” as “that which is

void in the beginning, [which] cannot be cured by waiver, acquiescence or

lapse of time.” Bryan A. Garner, A Modern Legal Dictionary 920 (2d

ed.2005). Because the complaint was void as to Catherine’s claims, it was

insufficient to commence an action on her behalf, and neither Catherine

nor her claims were properly before the trial court. See Tenn. R. Civ. P. 3

(providing that every civil action commences when a complaint is filed).

This is of the utmost significance because a decree is “void as to any person

shown by the record itself not to have been before the Court in person, or

by representation.” See Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn.

1996) (emphasis added); see also Tate v. Ault, 771 S.W.2d 416, 419 (Tenn.

Ct. App. 1988) (noting that a judgment is void if the court rendering it

lacked jurisdiction over the subject matter or the parties). For the reasons

stated above, neither Catherine nor her claims were before the trial court;

therefore, the trial court‟s judgment is void to the extent it ruled on the

merits of Catherine‟s purported claims. See Gentry, 924 S.W.2d at 680.

Id. at *6 (emphasis added).

With the foregoing in mind, we turn our attention to consider the office of Tenn.

R. Civ. P. 11 in relation to a void complaint. As is the case with all Tennessee Rules of

Civil Procedure, Rule 11 applies to civil actions. “All civil actions are commenced by

filing a complaint with the clerk of the court.” Tenn. R. Civ. P. 3. The filing of a void

complaint is a nullity, which has no legal effect. See Bivins, 910 S.W.2d at 447; see also

Vandergriff, 2015 WL 9943593, at *6. Therefore, the filing of a void complaint does not

commence a civil action. Because the filing of a void complaint does not commence a

civil action, Rule 11 has no office in relation to a void complaint. For these reasons, we

conclude that Tenn. R. Civ. P. 11 is not available to cure a void complaint.

2

Tenn. R. Civ. P. 11 uses the phrase “unsigned paper” not pleading.

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Moreover if Rule 11.01 were applicable, it would not provide a basis for relief due

to Plaintiff‟s failure to promptly correct the deficiency. The rule reads in pertinent part:

Every pleading, written motion, and other paper shall be signed by at least

one attorney of record in the attorney's individual name, or, if the party is

not represented by an attorney, shall be signed by the party. . . . An

unsigned paper shall be stricken unless omission of the signature is

corrected promptly after being called to the attention of the attorney or

party.

Tenn. R. Civ. P. 11.01 (emphasis added).

Our courts have considered what is required for a correction to be considered

“prompt” under this rule. See Old Hickory Engineering and Mach. Co., Inc., 937 S.W.2d

at 786 (delay of 37 days was not prompt); Doyle Shirt Mfg. Corp. v. O’Mara, 1999 WL

187160, at *3 (Tenn. Ct. App. April 7, 1999) (delay of 45 days was not prompt);

Investors Group, I Ltd., 2001 WL 839837, at *2 (appearance of counsel 53 days after

service of motion to dismiss did not satisfy the promptness requirement). In this case,

Trinity brought the complaint‟s deficiency to Plaintiff‟s attention on November 1, 2005,

when it filed its motion to dismiss. Plaintiff did not address the deficiency until 121 days

later, on March 2, 2006, when he filed a corrected complaint signed by an attorney.

Therefore, the corrective action was not sufficiently “prompt.”3

Plaintiff also contends that the amended complaint, which was duly signed by a

licensed attorney and filed after the statute of limitations had run, should relate back to

the initial filing date given the policy of liberality in allowing the addition or substitution

of parties in wrongful death cases. Again, we respectfully disagree.

Plaintiff correctly notes that there is a policy of “liberality . . . in allowing the

addition or substitution of a proper party plaintiff for an improper plaintiff” under Tenn.

R. Civ. P. 17.01. See Chapman v. King, 572 S.W.2d 925 (Tenn. 1978). However, in each

of the cases Plaintiff relies upon there was a viable complaint wherein a party could be

added or substituted. Here, the complaint Plaintiff seeks to amend does not exist, it is a

nullity because it was void ab initio and “there can be no „relation back‟ to a pleading . . .

that was a nullity from the start.” In re A.S.C., No. E2013-01830-COA-R3-PT, 2014 WL

4269114, at *6 (Tenn. Ct. App. Aug. 29. 2014). Because the complaint filed by Mr.

3

The deficiency in the initial complaint was brought to the attention of Plaintiff when Trinity

filed its Rule 12 motion to dismiss; therefore, the time within which Plaintiff could promptly correct the

deficiency began at that time. See Tenn. R. Civ. P. 11.01 (“[A]n unsigned paper shall be stricken unless

omission of the signature is corrected promptly after being called to the attention of the attorney or

party.”).

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Hartley was a nullity, there was no complaint to which the amended complaint could

relate back.

For the forgoing reasons, we respectfully deny the petition to rehear and

supplement our original opinion with the foregoing, which shall become part of the

court‟s decision in this matter.

Costs are assessed to the appellee, Linda Beard.

PER CURIUM

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IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 16, 2016 Session

LINDA BEARD V. JAMES WILLIAM BRANSON ET AL.

Appeal from the Circuit Court for Houston County

No. 1368 Robert E. Burch, Judge

No. M2014-01770-COA-R3-CV – Filed March 31, 2016

The dispositive issue in this wrongful death action is whether the pro se complaint filed

by the decedent‟s surviving spouse tolled the statute of limitations. The defendants, a

hospital and a physician, filed a motion for summary judgment, arguing that the

complaint was a nullity because the surviving spouse was asserting claims in a

representative capacity and the complaint was not signed by a licensed attorney. It is

undisputed that the decedent was survived by three heirs, the surviving spouse and two

children of the decedent. The trial court denied the motion concluding that, although the

pro se complaint could not assert the claims of the children, the surviving spouse could

properly assert his own claims. The trial court also held that the initial complaint was

sufficient to toll the statute of limitations and the claims of the children were not time

barred because a licensed attorney signed and filed an amended complaint that related

back to the original filing pursuant to Tenn. R. Civ. P. 15. Following a jury trial, the

defendants were found liable and damages were awarded. The hospital appealed. We

conclude the claims asserted by the surviving spouse were brought in a representative

capacity on behalf of the decedent and were not his individual claims. Filing a complaint

on behalf of another constitutes the practice of law and “[p]roceedings in a suit by a

person not entitled to practice law are a nullity.” Bivins v. Hosp. Corp. of Am., 910

S.W.2d 441, 447 (Tenn. Ct. App. 1995). Because the complaint filed by the surviving

spouse was a nullity, it did not toll the statute of limitations and no other complaint was

filed within the statute of limitations. Therefore, the trial court erred in denying the

hospital‟s motion for summary judgment based on the statute of limitations defense.

Accordingly, we reverse and remand with instructions to dismiss all claims and vacate all

judgments against the hospital.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

David L. Johnson, Nashville, Tennessee; James T. McColgan, III, and Sherry S.

Fernandez, Cordova, Tennessee, for the appellant, Trinity Hospital, LLC.

Philip N. Elbert, Nashville, Tennessee, for the appellee, Linda Beard.

OPINION

On September 13, 2004, Ruth Hartley (“the decedent”) was admitted to Trinity

Hospital, LLC (“Trinity”) to undergo colon surgery which was performed by James

William Branson, M.D. Following the surgery, the decedent developed complications and

remained hospitalized. On September 27, 2004, Dr. Branson ordered an x-ray and CT

scan of the decedent‟s abdomen and pelvis. The CT scan was reviewed off-site by

Stanley Anderson, M.D., a private radiologist under contract with Trinity. Dr. Anderson

reported that the CT scan indicated the possibility of a mechanical bowel obstruction;

however, Dr. Branson read the report and disagreed with the conclusion, thus no

additional steps were taken.

The following day, the decedent‟s condition continued to deteriorate. Dr. Branson

ordered that the decedent be transferred to Centennial Medical Center in Nashville by

helicopter. When the decedent arrived, it was determined that she was in septic shock.

While undergoing emergency surgery, the decedent went into cardiac arrest and died on

September 29, 2004.

On September 12, 2005, Denver Hartley, the decedent‟s surviving spouse, filed a

pro se complaint against Trinity and Dr. Branson seeking to recover damages for the

wrongful death of his wife. The complaint asserted that the defendants negligently failed

to diagnose and treat the decedent‟s condition and sought damages for the decedent‟s

pain and suffering, the economic value of her life, loss of consortium, funeral expenses,

and other damages incurred.

On November 1, 2005, the defendants filed motions to dismiss the wrongful death

action on the ground the statute of limitations had expired. Specifically, they contended

the pro se complaint filed by Mr. Hartley was a nullity because Mr. Hartley, who was not

a licensed attorney, was attempting to assert the decedent‟s wrongful death claims in a

representative capacity and no valid complaint had been timely filed.

Three months later, while the motions to dismiss were pending, a licensed attorney

filed a formal notice of appearance on behalf of Mr. Hartley. Shortly thereafter, on

February 27, 2006, Mr. Hartley‟s counsel filed a Memorandum of Law in Opposition to

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Defendants‟ Motion to Dismiss.1 On March 2, 2006, an amended complaint that was

signed by Mr. Hartley‟s counsel was filed with the court and served upon the defendants.

On July 3, 2006, the trial court denied the defendants‟ motions to dismiss. The

trial court construed the Wrongful Death Statute, Tenn. Code Ann. § 20-5-106, as

authorizing the decedent‟s surviving spouse to maintain an action on behalf of himself;

thus, it held that Mr. Hartley could file the complaint pro se because he was not acting in

a representative capacity, but was pursuing his own lawsuit.2

In November 2006, both defendants moved for summary judgment, raising the

same issue as their motions to dismiss. The summary judgment motions were supported

by affidavits showing that the decedent was survived by two children. Thus, the

defendants argued that, because Mr. Hartley was not the decedent‟s sole statutory

beneficiary, he was asserting the wrongful death claims in a representative capacity. On

March 14, 2007, the trial court denied these motions, finding that it was proper for Mr.

Hartley to act pro se to pursue his own claim and that his pursuit of claims on behalf of

other beneficiaries could be cured by amendment, which would relate back to the original

filing date. Based on the above reasoning, the trial court held that the filing of the

complaint in this action tolled the statute of limitations.

On December 23, 2008, Mr. Hartley passed away. A suggestion of death was filed,

and his daughter, Linda Beard, was substituted as plaintiff, pursuant to Tenn. R. Civ. P.

25.01(1), by agreed order on March 31, 2009.

A trial took place in this case from May 28 through June 13, 2014. The jury

returned a verdict finding liability, awarding damages in the amount of $750,000, and

apportioning 40% of the fault to Dr. Branson, 50% of the fault to Trinity, and 10% of the

fault to Dr. Anderson, a radiologist who was not a party. As a discovery sanction, Trinity

was deemed vicariously liable for the acts and omissions of Dr. Anderson.3 The trial

1

Dr. Branson filed a second motion to dismiss on February 27, 2006, contending that the initial

complaint should be stricken for failing to comply with Rule 11 of the Tennessee Rules of Civil

Procedure, which requires that counsel for a party represented by counsel sign the pleadings.

2

When the trial court made this ruling, the record did not reveal that there were other statutory

beneficiaries of the decedent.

3

Early in this litigation, Mr. Hartley requested production of the decedent‟s medical records from

Trinity, including the CT scan performed on September 27, 2004. In response, Trinity represented that the

CT scan could not be located and that it was sent to Centennial Medical Center along with the decedent

when she was transferred; however, neither the ambulance nor Centennial Medical Center had a record of

the CT scan. Mr. Hartley requested that Trinity download another copy of the scan from its data files from

its radiology file server, but Trinity stated that those files had been deleted. In January 2009, a disc copy

of the CT scan was finally produced by Trinity, who claimed to have misfiled the CD. A couple of years

(continued…)

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court entered judgment on this award on August 8, 2014. The trial court also awarded the

plaintiff discretionary costs in the amount of $68,945.85. Trinity filed a motion for a

directed verdict, or alternatively, a new trial. The motion was denied.

Trinity timely appealed to this Court. Dr. Branson did not appeal. Trinity raises

three issues: (1) whether the trial court erred by failing to dismiss the complaint as time-

barred; (2) whether the trial court erred by awarding partial summary judgment to the

plaintiff; and (3) whether the trial court‟s award of discretionary costs against Trinity

should be set aside.

We find the statute of limitations defense dispositive of all three issues raised by

Trinity. Therefore, we shall limit our discussion to Trinity‟s contention that the trial court

erred in denying its motion for summary judgment.

STANDARD OF REVIEW

We review a trial court‟s summary judgment adjudications de novo without a

presumption of correctness. Rye v. Women’s Care Center of Memphis, MPLLC, No.

W2013-00804-SC-R11-CV, __S.W.3d__, 2015 WL 6457768, at *12 (Tenn. Oct. 26,

2015). In doing so, we make a fresh determination of whether the requirements of Tenn.

R. Civ. P. 56 have been satisfied. Id. (citing Estate of Brown, 403 S.W.3d 193, 198

(Tenn. 2013)).

Summary judgment is appropriate when the “pleadings, depositions, answers to

interrogatories, and admission on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Tenn. R. Civ. P. 56.04; see also Martin v. Norfolk S. Ry.

Co., 271 S.W.3d 76, 83 (Tenn. 2008). The party moving for summary judgment bears the

burden of demonstrating both that no genuine dispute of material fact exists and that it is

entitled to a judgment as a matter of law. Martin, 271 S.W.3d at 83.

When the moving party does not bear the burden of proof at trial, the moving party

may satisfy its burden of production either: (1) by affirmatively negating an essential

element of the nonmoving party‟s claim; or (2) by demonstrating that the nonmoving

party‟s evidence at the summary judgment stage is insufficient to establish the

nonmoving party‟s claim or defense. Rye, 2015 WL 6457768, at *22.

later, after the plaintiff‟s experts were able to review the CT scan, they determined that Dr. Anderson, a

non-party radiologist, negligently failed to note evidence of bowel perforation when reading the CT scan.

Because of an extended delay in the production of these documents, Ms. Beard was foreclosed from

adding Dr. Anderson as a defendant. Ms. Beard moved for partial summary judgment to declare that Dr.

Anderson was an apparent agent of Trinity as a matter of law. The trial court granted the motion and

instructed the jury that Trinity was vicariously liable for any negligent acts or omissions of Dr. Anderson.

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ANALYSIS

I. TENNESSEE‟S WRONGFUL DEATH STATUTE

A wrongful death cause of action did not exist at common law. Jordan v. Baptist

Three Rivers Hosp. 984 S.W.2d 593, 596 (Tenn. 1999) (citing Annotation, Modern Status

of Rule Denying a Common-Law Recovery for Wrongful Death, 61 A.L.R.3d 906

(1975)). Instead, actions for personal injuries that resulted in death terminated at the

victim‟s death. Id. However, “Tennessee was one of the earliest states to abrogate . . .

„[t]he artificial rule of the common law that every right of action for personal injury died

with the person injured.‟” Id. (quoting E. Tenn. V. & G. Ry. Co. v. Lilly, 18 S.W. 243, 244

(Tenn. 1891)); see also Tenn. Code Ann. §20-5-106 et. seq.

Today, every jurisdiction in the United States has a wrongful death statute

permitting designated beneficiaries to recover losses sustained as a result of the tort

victim‟s death. Jordan, 984 S.W.2d at 596 (citing Dixie Ohio Exp. Co. v. Butler, 166

S.W.2d 614, 615 (Tenn. 1942)). The Tennessee Supreme Court has described the

approach taken by jurisdictions in adopting such statutes as follows:

Although all states have abolished the rule of non-liability when personal

injury results in death, the statutory methods of doing so fall into two

distinct categories—wrongful death statutes and survival statutes. See Sea-

Land Servs., Inc. v. Gaudet, 414 U.S. 573, 575 n.2, 94 S. Ct. 806, 39

L.Ed.2d 9 (1974).

The majority of states have enacted “survival statutes.” These statutes

permit the victim‟s cause of action to survive the death, so that the victim,

through the victim‟s estate, recovers damages that would have been

recovered by the victim had the victim survived. Sea-Land, 414 U.S. at 575

n. 2, 94 S. Ct. 806; Recovery for Wrongful Death at § 1:15; Prosser, § 126,

at 942-43. Survival statutes do not create a new cause of action; rather, the

cause of action vested in the victim at the time of death is transferred to the

person designated in the statutory scheme to pursue it, and the action is

enlarged to include damages for the death itself. Prosser, § 126, at 942-43.

“[T]he recovery is the same one the decedent would have been entitled to at

death, and thus included such items as wages lost after injury and before

death, medical expenses incurred, and pain and suffering,” and other

appropriate compensatory damages suffered by the victim from the time of

injury to the time of death. Id. at 943.

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In contrast to survival statutes, “pure wrongful death statutes” create a new

cause of action in favor of the survivors of the victim for their loss

occasioned by the death. Recovery for Wrongful Death at § 1:13; William

T. Gamble, Actions for Wrongful Death in Tennessee, 4 Vand. L. Rev. 289,

290 (1950). These statutes proceed “on the theory of compensating the

individual beneficiaries for the loss of the economic benefit which they

might reasonably have expected to receive from the decedent in the form of

support, services or contributions during the remainder of [the decedent‟s]

lifetime if [the decedent] had not been killed.” Prosser, § 127, at 949.

Hence, most wrongful death jurisdictions have adopted a “pecuniary loss”

standard of recovery, allowing damages for economic contributions the

deceased would have made to the survivors had death not occurred and for

the economic value of the services the deceased would have rendered to the

survivors but for the death. Recovery for Wrongful Death at § 3:1.

Jordan, 984 S.W.2d at 597-98.

Tennessee‟s wrongful death statutes provide that “[t]he right of action that a

person who dies from injuries received from another, or whose death is caused by the

wrongful act, omission, or killing by another, would have had against the wrongdoer, in

case death had not ensued, shall not abate or be extinguished. . . .” Tenn. Code Ann. § 20-

5-106(a). This right of action may be “instituted by the personal representative of the

deceased or by the surviving spouse in the surviving spouse‟s own name, or if there is no

surviving spouse, by the children of the deceased or by the next of kin.” Tenn. Code Ann.

§ 20-5-107(a). The party suing under these statutes has the right to recover damages “for

the mental and physical suffering, loss of time and necessary expenses resulting to the

deceased from the personal injuries, and also the damages resulting to the parties for

whose use and benefit the right of action survives from the death. . . .” Tenn. Code Ann. §

20-5-113.

With regard to the damages available under these statutes, the Supreme Court has

noted that Tennessee‟s approach is a hybrid between the “survival” and “pure wrongful

death” models. Jordan, 984 S.W.2d at 597-98. Specifically, the Supreme Court has

stated:

Tennessee‟s approach to providing a remedy for death resulting from

personal injury is a hybrid between the survival and wrongful death

statutes, resulting in a statutory scheme with a “split personality.” 27 Tenn.

L. Rev. at 454. The pertinent damages statute, Tenn. Code Ann. § 20-5-

113, has been in existence in one form or another since 1883 . . . .

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The plain language of Tenn. Code Ann. § 20-5-113 reveals that it can be

classified as a survival statute because it preserves whatever cause of action

was vested in the victim at the time of death. Jones v. Black, 539 S.W.2d

123 (Tenn. 1976); Milligan v. American Hoist & Derrick Co., 622 F.Supp.

56, 59 (W.D. Tenn. 1985). The survival character of the statute is evidenced

by the language “the party suing shall have the right to recover [damages]

resulting to the deceased from the personal injuries.” Thrailkill v.

Patterson, 879 S.W.2d 836, 841 (Tenn. 1994) (emphasis added). Tennessee

courts have declared that the purpose of this language is to provide “for the

continued existence and passing of the right of action of the deceased, and

not for any new, independent cause of action in [survivors].” Whaley v.

Catlett, 103 Tenn. 347, 53 S.W. 131, 133 (Tenn. 1899); see also Herell v.

Haney, 207 Tenn. 532, 341 S.W.2d 574, 576 (Tenn. 1960); Memphis St. Ry.

Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444, 447-48 (Tenn. 1958);

Jamison v. Memphis Transit Management Co., 381 F.2d 670, 673 (6th Cir.

1967). Accordingly, Tenn. Code Ann. § 20-5-113 “in theory, preserve[s]

the right of action which the deceased himself would have had, and . . .

[has] basically been construed as falling within the survival type of

wrongful death statutes for over a century” because it continues that cause

of action by permitting recovery of damages for the death itself. Jones, 539

S.W.2d at 123-125.

Notwithstanding the accurate, technical characterization of Tenn. Code

Ann. § 20-5-113 as survival legislation, the statute also creates a cause of

action that compensates survivors for their losses. The statute provides that

damages may be recovered “resulting to the parties for whose use and

benefit the right of action survives from the death.” Id. (emphasis

added). Hence, survivors of the deceased may recover damages for their

losses suffered as a result of the death as well as damages sustained by the

deceased from the time of injury to the time of death. Jones, 539 S.W.2d at

124.

Jordan, 984 S.W.2d at 597-98 (emphasis in original).

However, while acknowledging the hybrid nature of the wrongful death statutes as

it relates to damages, the Supreme Court has repeatedly held that the claims asserted in a

wrongful death case are held solely by the decedent and that the statutes do not create a

new cause of action for the decedent‟s statutory beneficiaries. See Jones v. Black, 539

S.W.2d 123, 124 (Tenn. 1976); Lynn v. City of Jackson, 63 S.W.3d 332, 335-36 (Tenn.

2001); Ki v. State, 78 S.W.3d 876, 879-80 (Tenn. 2002).

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For example, in Ki v. State, the Supreme Court considered an appeal from a

wrongful death action brought by the parents of a student who died in a dormitory fire at

the University of Tennessee. Ki, 78 S.W.3d at 877. At issue in that case was whether the

student and his parents could both be considered “claimants” under Tenn. Code Ann. § 9-

8-307(e), a statute that limits the damages recoverable against the State to “three hundred

thousand dollars ($300,000) per claimant and one million ($1,000,000) per occurrence.”

Id. at 879. The Tennessee Claims Commission held that both the decedent and his parents

were considered “claimants” in this action and awarded the parents: (1) $300,000 on

behalf of their son; and (2) $300,000 for their own losses. Id. On appeal, this Court

reversed in part, holding that the student is the only claimant under the statute. Id. at 879.

The Supreme Court affirmed the judgment of this Court, reasoning as follows:

Section 20-5-106(a) of the Tennessee Code Annotated provides in pertinent

part that

[t]he right of action which a person, who dies from injuries

received from another, or whose death is caused by the

wrongful act, omission, or killing by another, would have had

against the wrongdoer, in case death had not ensued, shall

not abate or be extinguished by the person‟s death but shall

pass to the person‟s surviving spouse and, in case there is no

surviving spouse, to the person‟s children or next of kin . . . .

(Supp. 2000) (emphasis added). The plain language of Tenn. Code Ann. §

20-5-106(a) establishes that in a wrongful death suit only one right of

action exists: the action that the decedent would have had, absent death,

against the negligent wrongdoer. . . . The decedent is the sole party who

holds a right of action or claim in a wrongful death suit. See Lynn v. City of

Jackson, 63 S.W.3d 332, 336 (Tenn. 2001) (stating that “Tennessee‟s

wrongful death statute does not create a new cause of action for the

beneficiaries but instead preserves the right of action of the decedent.”).

The decedent‟s survivors are only asserting the decedent‟s right of action

on behalf of the decedent. Accordingly, because Tenn. Code Ann. § 20-5-

106(a) creates one claim or right of action vested in the decedent, the

decedent is the sole “claimant” in a wrongful death action.

The [parents] maintain, however, that Tenn. Code Ann. § 20-5-113 creates

two separate rights to damages, which has the effect of permitting two

claimants to exist in a wrongful death action. . . . Section 20-5-113 of the

Tennessee Code Annotated establishes the types of damages that may be

recovered in a wrongful death action. In Jordan v. Baptist Three Rivers

Hospital, 984 S.W.2d 593 (Tenn. 1999), we held that the wrongful death

damages statute, Tenn. Code Ann. § 20-5-113, permits an award of

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consortium damages as part of the pecuniary value of the decedent‟s life.

Id. at 601. As we stated in Jordan, however, “[t]his holding does not create

a new cause of action but merely refines the term „pecuniary value.‟” Id.

Thus, beneficiaries do not have an individual claim or cause of action for

the wrongful death of the decedent. Instead, the beneficiaries may recover

damages for the individual losses that arise pursuant to the right of action

vested in the decedent. See Kline v. Eyrich, 69 S.W.3d 197, 207 (Tenn.

2002) (stating that although the living beneficiaries of the action may seek

recovery for their own losses in addition to the losses of the decedent, the

right of action remains one that is single and indivisible). More than one

claimant is not created in a wrongful death action, however, simply because

beneficiaries may be compensated for their individual losses as a part of the

decedent‟s right of action or claim.

Ki, 78 S.W.3d at 879-80 (emphasis in original); see also Kline v. Eyrich, 69 S.W.3d 197,

207 (Tenn. 2002).

For the reasons explained above, we conclude that Mr. Hartley never had “his own

individual claim” to assert in this case. See Ki, 78 S.W.3d at 880. For the same reasons,

neither of the decedent‟s two children had a separate claim. See id. Instead, one

indivisible cause of action existed, that being the cause of action the decedent would have

had, absent death, against the wrongdoer. See id. at 879; see also Lynn, 63 S.W.3d at 336.

Thus, the decedent‟s survivors were only permitted to assert the cause of action in a

representative capacity on behalf of the decedent.

II. THE LEGAL EFFECT OF PLAINTIFF‟S PRO SE COMPLAINT

Trinity argues that, because Mr. Hartley did not have an individual claim to assert,

but was attempting to act on behalf of the decedent, the pro se complaint he filed was a

nullity; therefore, it did not toll the statute of limitations.

Any person may conduct and manage his or her own case in any court of

Tennessee. Tenn. Code Ann. § 23-1-109. However, the right of self-representation only

allows an individual to conduct and manage “the person‟s own case.” See Id. (emphasis

added); see also Vandergriff v. ParkRidge E. Hosp., No. E2014-02253-COA-R3-CV,

__S.W.3d__, 2015 WL 9943593, at *4 (Tenn. Ct. App. Aug. 21, 2015). Accordingly,

litigants may not appear in a representative capacity on behalf of others without an

attorney. See Old Hickory Eng’g and Mach. Co., Inc. v. Henry, 937 S.W.2d 782, 786

(Tenn. 1996) (holding that a non-attorney president or shareholders of a corporation

could not appear on behalf of the corporation); Vandergriff, 2015 WL 9943593, at *4

(concluding that parents were not able to file a pro se complaint that asserted claims on

behalf of their minor daughter or appear in court as a legal advocate for her); Elm

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Children’s Educ. Trust v. Wells Fargo Bank, N.A., 468 S.W.3d 529, 533 (Tenn. Ct. App.

2014) (holding that a non-attorney trustee may not represent a trust pro se).4

Ms. Beard argues that because wrongful death actions “may be instituted by . . .

the surviving spouse in the surviving spouse‟s own name,” see Tenn. Code Ann. § 20-5-

107, Mr. Hartley was statutorily permitted to file this action pro se. While Section 20-5-

107 allows the surviving spouse or next of kin to “institute” the wrongful death action on

behalf of the decedent, the statute does not authorize the individual to practice law while

doing so.5 To the contrary, only licensed attorneys may engage in the “practice of law” in

Tennessee. Tenn. Sup. Ct. R. 7, § 1.01; Tenn. Code Ann. § 23-3-103(a); see also

Vandergriff, 2015 WL 9943593, at *5 (reasoning that, although Tenn. R. Civ. P. 17.03

allows parents to “sue or defend” on behalf of their minor children, “the rule does not

authorize a parent to practice law while acting on behalf of [a] child.”).

In Tennessee, the practice of law “relates to the rendition of service for others that

call for the professional judgment of a lawyer.” Petition of Burson, 909 S.W.2d 768, 775

(Tenn. 1995). Under this standard, the Supreme Court has held that preparing and filing a

complaint on behalf of another constitutes the practice of law because it requires a

lawyer‟s professional judgment. See Old Hickory Eng’g and Mach. Co., Inc., 937 S.W.2d

at 786. Similarly, according to the Tennessee Code, the practice of law includes “the

appearance as an advocate in a representative capacity or the drawing of papers,

pleadings or documents or the performance of any act in such capacity in connection with

proceedings pending or prospective before any court . . . .” Tenn. Code Ann. § 23-3-

101(3).

Because of the prohibition against the unauthorized practice of law in Tennessee,

“[p]roceedings in a suit by a person not entitled to practice law are a nullity” and are

considered void. Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441, 447 (Tenn. Ct. App.

1995) (citing 7 C.J.S Attorney and Client § 31, p. 869, n.13 & n.20); see also Investors

Grp., I Ltd. v. Knoxville’s Cmty. Dev. Corp., No. E1999-00395-COA-R3-CV, 2001 WL

839837, at *2 (Tenn. Ct. App. July 25, 2001) (holding that a complaint filed on behalf of

a limited partnership and signed only by a non-attorney was “void”).

4

The Tennessee Rules of Civil Procedure formalize this rule by requiring that “[e]very pleading,

written motion, and other paper shall be signed by at least one attorney of record . . . or, if the party is not

represented by an attorney, shall be signed by the party.” Tenn. R. Civ. P. 11.01.

5

We have noted that the wrongful death statutes give the surviving spouse the right to “control”

over the action, unless he or she waives that right. See Estate of Baker ex rel. Baker v. Maples, 995

S.W.2d 114, 115 (Tenn. Ct. App. 1999). For example, a surviving spouse is entitled to “hire the attorney

or attorneys needed to prosecute the action” and also “has the discretion either to litigate the claim or to

settle it in a manner that is binding upon [other statutory beneficiaries].” Kline, 69 S.W.3d at 207.

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Mr. Hartley was not a licensed attorney; therefore, he could not file a valid

complaint that asserted claims on behalf of another individual without it being signed by

a licensed attorney. The only complaint that was filed before the statute of limitations

expired in this action was the pro se complaint filed by Mr. Hartley. As discussed above,

Mr. Hartley was not pursuing his own personal claims in this case; instead, he was

attempting to assert, in a representative capacity, the claims of the decedent. Thus,

because the pro se complaint asserted claims on behalf of another individual and was not

signed by a licensed attorney, the filing of that complaint was a nullity.

III. RELATION BACK UNDER TENN. R. CIV. P. 15

The trial court held that the filing of Mr. Hartley‟s pro se complaint was sufficient

to toll the statute of limitations pending the filing of the amended complaint signed by

counsel on March 2, 2006, which related back to the original filing date. Based on this

analysis, the trial court denied the defendants‟ motions to dismiss and thereafter their

motions for summary judgment on the same grounds.

Generally, the filing of a complaint operates to toll the statute of limitations. Lane

v. Daniel, No. W2012-01684-COA-R3-CV, 2013 WL 2325620, at *3 (Tenn. Ct. App.

May 29, 2013); see Tenn. R. Civ. P. 3 (“All actions are commenced by filing a complaint

with the clerk of the court. An action is commenced within the meaning of any statute of

limitations upon such filing . . .”). Additionally, Rule 15.03 of the Tennessee Rules of

Civil Procedure provides that a properly accepted amended complaint will relate back to

the date of the original pleading. Tenn. R. Civ. P. 15.03.

However, as discussed above, “[p]roceedings in a suit by a person not entitled to

practice law are a nullity” and are considered void. Bivins, 910 S.W.2d at 447. Something

that is “void” has no legal effect. Vandergriff, 2015 WL 9943593, at *6 (citing Black‟s

Law Dictionary 1349 (9th 3d. 2010)). Another legal dictionary defines “void” as

“absolutely null,” going on to describe an order that is “void ab initio” as “that which is

void in the beginning, [which] cannot be cured by waiver, acquiescence or lapse of time.”

Id. (citing Bryan A. Garner, A Modern Legal Dictionary 920 (2d ed. 2005)).

Mr. Hartley filed the initial pro se complaint prior to the running of the statute of

limitations; however, we have ruled that the initial complaint was a nullity and has no

legal effect. Thus, the initial complaint did not operate to toll the statute of limitations.

See Duffner v. Keystops, LLC, No. M2011-01484-COA-R3-CV, 2012 WL 3104903, at *6

(Tenn. Ct. App. July 31, 2012) (holding that because the plaintiff‟s complaint was void

ab initio, it did not toll the statute of limitations). Because the initial complaint is a

“nullity,” it is treated as if it never existed; thus, the subsequent complaint which was

signed by counsel and filed on March 2, 2006, cannot relate back under Rule 15.03 to the

filing date of the initial complaint. See In re A.S.C., No. E2013-01830-COA-R3-PT, 2014

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WL 2014 4269114, at *6 (Tenn. Ct. App. Aug. 29, 2014) (holding that under Rule 15.03,

“there can be no „relation back‟ to a pleading . . . that was a nullity from the start.”).

In reaching this conclusion, we are unpersuaded by Ms. Beard‟s argument that the

subsequent complaint should be considered timely under Rules 17.01 and 11.01 of the

Tennessee Rules of Civil Procedure. Rule 17.01 allows for the substitution of the real

party in interest, even after the statute of limitations has passed, when a mistake has been

made in naming the party. Tenn. R. Civ. P. 17.01. Although this rule is one of liberal

construction, see Chapman v. King, 572 S.W.2d 925, 927-28 (Tenn. 1978), the instant

case is not one in which an improper party was named as the plaintiff. To the contrary,

Mr. Hartley was undoubtedly the party with standing to pursue the wrongful death claims

on behalf of the decedent. See Tenn. Code Ann. § 20-5-107(a). Therefore, Rule 17.01 is

inapplicable to this case.

Further, Rule 11.01 does not provide Ms. Beard with a basis for relief. Rule 11.01

states: “Every pleading, written motion, and other paper shall be signed by at least one

attorney of record . . . or, if the party is not represented by an attorney, shall be signed by

the party.” Tenn. R. Civ. P. 11.01. A litigant who fails to comply with this rule is

afforded an opportunity to promptly correct this error once it is brought to his or her

attention. See Id. Tennessee courts have described what is required for a correction to be

considered “prompt” under this rule on several occasions. See Old Hickory Engineering

and Mach. Co., Inc., 937 S.W.2d at 786 (delay of 37 days was not prompt); Doyle Shirt

Mfg. Corp. v. O’Mara, 1999 WL 187160, at *3 (Tenn. Ct. App. April 7, 1999) (delay of

45 days was not prompt); Investors Group, I Ltd., 2001 WL 839837, at *2 (appearance of

counsel 53 days after service of motion to dismiss did not satisfy the promptness

requirement).

Trinity brought the complaint‟s deficiency to Mr. Hartley‟s attention on November

1, 2005, when it filed its motion to dismiss. Mr. Hartley did nothing to address this

problem until 121 days later, on March 2, 2006, when he filed a corrected complaint with

an attorney‟s signature. We conclude that these actions were not “prompt” within the

meaning of Rule 11.01.

Accordingly, we hold that Trinity was entitled to summary judgment on the

defense of the statute of limitations and the trial court erred by failing to dismiss the

wrongful death claims against Trinity. This determination renders the remaining issues in

this appeal moot.

IN CONCLUSION

The judgment of the trial court is reversed to the extent it pertains to Trinity

Hospital, and this matter is remanded with instructions for the trial court to enter

judgment summarily dismissing all claims and judgments against Trinity Hospital,

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including the award for damages for the wrongful death of Ms. Hartley and discretionary

costs.6 Costs of appeal are assessed against Linda Beard.

______________________________

FRANK G. CLEMENT, JR., JUDGE

6

Our decision in this appeal has no bearing on the final judgment entered against the other

defendant for which no appeal was taken.

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