THOMAS PAUL SCOTT v. JAMES KEVIN ROBERSON (Tenn. Ct. App. August 25, 2011)
Plaintiff injured in automobile accident died while his negligence action was pending. Plaintiff's counsel filed a suggestion of death but neglected to move to substitute a party for the deceased plaintiff within 90 days, as required by Tenn. R. Civ. P. 25.01(1). Defendants filed motions for summary judgment, which led plaintiff's estate to file a motion to enlarge time within which to move to substitute pursuant to Tenn. R. Civ. P. 6.02.
The trial court determined that plaintiff's counsel's neglect in moving to substitute within 90 days was not excusable and granted defendants' motions, dismissing the action. On appeal we affirm the trial court's judgment because we cannot conclude that the trial court abused its discretion in ruling the neglect was not excusable.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/scottt_082511.pdf
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Showing posts with label Excusable Neglect. Show all posts
Showing posts with label Excusable Neglect. Show all posts
Friday, August 26, 2011
Tuesday, January 4, 2011
Court Reviews Whether the Trial Court Properly Denied a Rule 60.02 Motion in a Case involving an Automobile Accident
RICHARD A. WILLETTE, JR. v. CARROLL G. HULSE ET AL. (Tenn. Ct. App. October 7, 2010)
This action arises out of a vehicular accident in which the plaintiff sustained serious personal injury. A complaint was filed on behalf of the pro se plaintiff; however, the complaint was not signed by the plaintiff or a licensed attorney as required by Tenn. R. Civ. P. 11.01.
The plaintiff subsequently retained counsel, but the plaintiff's attorney failed to make a written appearance until months later. Moreover, neither the attorney nor the plaintiff signed the complaint to cure the signature deficiency until after the case was dismissed and the statute of limitations had run.
The plaintiff then filed a Rule 60.02 Motion for Relief from Judgment or Order based on Excusable Neglect. That motion was denied and this appeal followed. We have determined that the trial court did not abuse its discretion in denying the plaintiff's Rule 60.02 motion; therefore, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/willetter_100710.pdf
This action arises out of a vehicular accident in which the plaintiff sustained serious personal injury. A complaint was filed on behalf of the pro se plaintiff; however, the complaint was not signed by the plaintiff or a licensed attorney as required by Tenn. R. Civ. P. 11.01.
The plaintiff subsequently retained counsel, but the plaintiff's attorney failed to make a written appearance until months later. Moreover, neither the attorney nor the plaintiff signed the complaint to cure the signature deficiency until after the case was dismissed and the statute of limitations had run.
The plaintiff then filed a Rule 60.02 Motion for Relief from Judgment or Order based on Excusable Neglect. That motion was denied and this appeal followed. We have determined that the trial court did not abuse its discretion in denying the plaintiff's Rule 60.02 motion; therefore, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/willetter_100710.pdf
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