Randall E. Pearson, MD v. Paul Koczera ( 2018 )


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  •                                                                                       05/07/2018
    IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    October 17, 2017 Session
    RANDALL E. PEARSON, MD, ET AL. v. PAUL KOCZERA, ET AL.
    Appeal from the Circuit Court for Anderson County
    No. B2LA0060        John D. McAfee, Judge1
    ___________________________________
    No. E2017-00258-COA-R3-CV
    ___________________________________
    This appeal follows prior appeals in this litigation that has spanned a decade. In this
    latest appeal, the trial court determined that the motions filed by the administrator ad
    litem for the estate of the third-party plaintiff should be denied. We affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
    Affirmed; Case Remanded
    JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R.
    FRIERSON, II, J. and NORMA MCGEE OGLE, SP. J., joined.
    Wanda McClure Dry, Danville, Kentucky, pro se appellant, as administrator ad litem for
    the Estate of Laurence R. Dry.
    Darryl G. Lowe, Edward G. White, II, Gregory Brown, John T. Rice, Joshua J. Bond, and
    Wynne du M. Caffey-Knight, Knoxville, Tennessee, for the appellees, Christi Lenay
    Fields Steele; Randall E. Pearson, MD; Laurence Thomas O’Connor, Jr., MD; Joshua R.
    Walker; Jeffery Scott Griswold; Jeffrey A. Woods; and State Volunteer Mutual Insurance
    Company.
    OPINION
    I. BACKGROUND
    In 2008, Lawrence Thomas O’Connor, Jr., MD, performed two surgeries on Paul
    Koczera. Later that year, Mr. Koczera and his wife, represented by Laurence R. Dry and
    1
    By Interchange.
    Wanda McClure Dry,2 filed a healthcare liability action against Dr. O’Connor and his
    practice. Joshua R. Walker and Jeffery Scott Griswold (“Attorneys”) were counsel for
    Dr. O’Connor. Jeffrey A. Woods was the insurance adjuster for Dr. O’Connor’s insurer,
    State Volunteer Mutual Insurance Company (“SVMIC”). Dr. O’Connor was eventually
    dismissed from the action on summary judgment for insufficiency of service of process.
    Christi Lenay Fields Steele, the office manager for the practice, had been served with the
    process for Dr. O’Connor. She then gave the complaint and summons to another doctor,
    Dr. Randall E. Pearson, MD, who gave the papers to Dr. O’Connor. Because Ms. Steele
    was not authorized to accept service of process on behalf of Dr. O’Connor, the physician
    was dismissed as a defendant. Subsequently, in 2010, the Koczeras, again represented by
    the Drys, filed a lawsuit against Dr. O’Connor’s partner, Dr. Pearson; his office manager,
    Ms. Steele; and the medical practice for wrongfully interfering with service of process on
    Dr. O’Connor and to recover damages due to the decrease in value of the original case
    caused by the dismissal of Dr. O’Connor.
    In late November 2010, a settlement was apparently reached at mediation, and the
    Koczeras moved to dismiss the case against Dr. Pearson and Ms. Steele. At a hearing on
    the motion in 2011, however, Mr. Walker requested that the court grant his motion for
    summary judgment rather than dismiss the case on the Koczeras’ motion. On June 29,
    2011, the trial court granted summary judgment in favor of Ms. Steele, Dr. Pearson, and
    Tennessee Urology Associates, PLLC (“TUA”). A complaint for malicious prosecution
    was eventually filed against Dr. Dry, Ms. Dry, and the Koczeras in early 2012. By this
    time, Dr. Dry had suffered a stroke and was rehabilitating in Florida. In May 2012, the
    Drys filed an answer as counsel for themselves and each other, noting their professional
    address as 140 East Division Road, Suite A5, in Oak Ridge, Tennessee. Dr. Dry, acting
    pro se, filed a third-party action as the sole plaintiff. His third-party complaint included
    claims for abuse of process, interference with Dr. Dry’s business, malicious prosecution,
    and conspiracy. About two weeks after filing the third-party complaint, Dr. Dry died.
    On May 25, 2012, an attorney for the appellees served a suggestion of death on
    Ms. Dry at her law office, at the same address shown on the pleadings that she and Dr.
    Dry filed in the malicious prosecution case. Ms. Dry, the surviving spouse, was both a
    party and an attorney for other parties in that action. According to Ms. Dry, attorney
    White called her “and encouraged her to suspend ‘any action in the litigation by
    agreement so that Ms. Dry could consider what further action, if any would be taken to
    further pursue the litigation.’” Ms. Dry asserts that Mr. White “neglected to mention that
    he had filed a Suggestion of Death so the case would be dismissed if a motion to
    substitute was not filed within the 90 day time period allowed by Rule 25.01 of the
    2
    Ms. Dry has appeared in this legal saga as co-counsel in the healthcare liability action, a
    defendant and co-counsel in the malicious prosecution action, as a widow, and the administrator
    ad litem of Dr. Dry’s estate. She was not a third-party plaintiff in the action filed by Dr. Dry pro
    se just prior to his death.
    -2-
    Tennessee Rules of Civil Procedure.”3 Rule 25.01(1) specifically provides:
    If a party dies and the claim is not thereby extinguished, the
    court may order substitution of the proper parties. The motion
    for substitution may be made by any party or by the
    successors or representatives of the deceased party and,
    together with the notice of hearing, shall be served on the
    parties as provided in Rule 5 and upon persons not parties in
    the manner provided in Rule 4 for the service of process.
    Unless the motion for substitution is made not later than
    ninety (90) days after the death is suggested upon the record
    by service of a statement of the fact of the death as provided
    herein for the service of the motion, the action shall be
    dismissed as to the deceased party.
    On October 16, 2012, more than ninety days after Mr. White filed the suggestion
    of Dr. Dry’s death, Ms. Dry sent a letter to counsel for SVMIC and Mr. Woods, notifying
    them of her change of address from 140 East Division Road in Oak Ridge to “Wanda M.
    Dry, the Dry Law Firm, P.O. Box 2122, Danville, KY.” On November 13, 2012,
    Attorneys filed a motion to dismiss Dr. Dry’s third-party complaint for failure to file a
    timely motion for substitution pursuant to Rule 25.01. They also filed a motion for
    judgment on the pleadings. All the appellees joined in the motion to dismiss for failure to
    substitute. According to Ms. Dry, it was at this time that she first saw the suggestion of
    death.
    On December 4, 2012, notice was given to Ms. Dry that the motions would be
    heard on December 20, 2012. Ms. Dry, however, made no response to the motions. She
    appeared by telephone at the hearing and advised the trial court that she was “appearing
    today just as the attorney for myself in the – as a defendant. I’m not representing [Dr.
    Dry] in any way or his estate or anything to do with that. I think all of these motions are
    against him or his estate. He’s a pro se defendant or a pro se party.” She asserted that
    she was not “a party in this action.” Ms. Dry clarified that an estate had not been opened
    for Dr. Dry at that time and that she was “not the executrix of the estate or the
    administrator of the estate.” Despite her lack of standing as a party or legal counsel for a
    party, the trial court allowed Ms. Dry to make statements and argument at the hearing.
    The court granted the motions filed by the appellees and entered a final order on
    December 28, 2012, dismissing Dr. Dry’s third-party complaint.
    3
    There is no time requirement for making the suggestion of death upon the record, and
    until it is made, the ninety-day period for a motion to substitute does not begin to run. 3 Tenn.
    Prac. Rules of Civil Procedure Ann. 25:2 (4th ed.).
    -3-
    On January 14, 2013, Ms. Dry attempted to file a notice of appearance to appoint
    herself as counsel for Dr. Dry. Two days later, she also filed a notice of appeal of the
    dismissal of the third-party complaint, purportedly on behalf of Dr. Dry. Upon filing a
    petition for appointment as administrator ad litem on behalf of Dr. Dry’s estate for the
    limited purpose of pursuing the third-party complaint on February 27, 2013, on March 7,
    2013, over nine months after Dr. Dry’s death and almost three months after the order of
    dismissal was entered, Ms. Dry obtained an order appointing herself as administrator ad
    litem for the estate of Dr. Dry.
    On March 25, 2013, Ms. Dry attempted to file a notice of appearance for the third-
    party plaintiff in the trial court. On April 9, 2013, she filed a “Motion to Substitute
    and/or Motion for Enlargement of Time” in the trial court, asking to enlarge the time for
    her to substitute herself as administrator ad litem in place of the deceased third-party
    plaintiff, Dr. Dry, and herself as counsel for the administrator ad litem. According to Ms.
    Dry, until she was appointed as administrator ad litem, she did not have a legal duty to
    act regarding any aspect of this case.
    After the appeal came before us, we held that the appellees had provided proper
    notice of the suggestion of death by mailing a copy to the law firm address of Dr. Dry
    and Ms. Dry, an attorney in his law firm. This court then held that Ms. Dry, as Dr. Dry’s
    surviving spouse, did not have standing to file the appeal because (1) she was not a party
    to the third-party complaint, (2) she did not represent Dr. Dry, and (3) she did not
    represent Dr. Dry’s estate, which had not been opened when the trial court entered its
    final judgment. See Dry v. Steele, No. E2013-00291-COA-R3-CV, 
    2014 WL 295777
    , at
    *1 (Tenn. Ct. App. Jan. 28, 2014) (“Dry I”). We also opined that even if Ms. Dry had
    standing to argue her other issues, she waived them by failing to raise them in the trial
    court.4 After the Tennessee Supreme Court denied discretionary review, Ms. Dry filed a
    petition for writ of certiorari to the United States Supreme Court, which was denied on
    October 22, 2014. See Dry v. Steele, 
    133 S. Ct. 405
    (Mem.)(2014).
    Following the dismissal of Ms. Dry’s first appeal, she filed several motions as
    administrator ad litem with the trial court. On June 4, 2015, the court heard argument on
    Ms. Dry’s motion to substitute in place of the third-party plaintiff and/or motion for
    enlargement of time. Ms. Dry argued that because this court had found that she did not
    have standing to appeal, we exceeded our jurisdiction in issuing the earlier judgment and
    opinion. According to Ms. Dry, the judgment was not binding on her because she was
    not a party to the third-party case. On June 19, 2015, however, the trial court denied the
    motion, holding that it lacked jurisdiction to hear it. The court determined that we had
    already ruled that the suggestion of death had been properly served. Relying upon the
    law of the case doctrine, the trial court concluded that Ms. Dry’s failure to timely file
    4
    We vacated the trial court’s judgment on the other motions. The case was dismissed
    pursuant to Rule 25.01. Dry I, 
    2014 WL 295777
    , at *5.
    -4-
    motions to substitute or for enlargement of time was not the result of excusable neglect.
    Five days later, Dr. Pearson, Ms. Steele, and TUA voluntarily dismissed their malicious
    prosecution suit against all the original defendants, including Ms. Dry.
    Approximately a month later, Ms. Dry filed a Rule 59/Rule 60 motion to vacate
    the trial court’s orders of December 28, 2012 and June 19, 2015. The appellees
    responded, arguing that we had previously determined that the suggestion of death had
    been properly filed and served and that the trial court had correctly dismissed the third-
    party complaint. The appellees observed that the trial court was without jurisdiction to
    alter its prior order because the earlier ruling had become the “law of the case.”
    Believing that it lacked jurisdiction, the court entered an order denying Ms. Dry’s motion.
    Ms. Dry, as administrator ad litem, filed a notice of appeal. Upon review, we
    noted the following about Dry I:
    In the first appeal, Ms. Dry raised issues regarding, inter alia,
    (1) whether the trial court erred in granting the motions to
    dismiss “because the administrator ad litem was not
    represented at the hearing and was not allowed to present
    proof that the ninety day window for filing the motion to
    substitute had not yet passed” or should be enlarged and (2)
    whether Tennessee Rule of Civil Procedure 25.01, as applied,
    violated Dr. Dry’s state and federal constitutional rights.
    Regarding the application of Tennessee Rule of Civil
    Procedure 25.01, this Court ruled that the suggestion of death
    filed by SVMIC and Mr. Woods was properly served upon
    Ms. Dry but that Ms. Dry failed to file a motion for
    substitution within ninety days as required by Tennessee Rule
    of Civil Procedure 25.01. The Court concluded that because
    the plain language of Tennessee Rule of Civil Procedure
    25.01 mandated dismissal of the deceased party under such
    circumstances, the trial court properly dismissed Dr. Dry’s
    third-party complaint.
    This Court also determined that Ms. Dry had no standing to
    appeal the trial court’s judgment of dismissal, stating:
    At the time of the trial court’s entry of final judgment,
    Ms. Dry did not have authority or standing to file a
    notice of appeal. As already discussed, she was not a
    party to the action, nor did she represent Dr. Dry.
    Because the estate had not been opened, there was no
    estate to be represented and Ms. Dry clearly told the
    -5-
    court that she did not represent his estate. We are of
    the opinion that Ms. Dry’s entry of a notice of
    appearance as counsel for Dr. Dry, filed with the trial
    court on January 14, 2013, was ineffective and did not
    provide her authority to file a notice of appeal on his
    behalf. It is obvious that a lawyer cannot unilaterally
    create an attorney-client relationship with a deceased
    person. Furthermore, Tenn. Code Ann. 30-1-101
    provides that “[n]o person shall presume to enter upon
    the administration of any deceased person’s estate until
    the person has obtained letters of administration or
    letters testamentary.” This had not been done at the
    time of the final judgment.
    Ms. Dry’s actions in petitioning the trial court to be
    appointed administrator ad litem and hiring herself as
    counsel for administrator ad litem came too late to
    save this appeal. According to her motion to consider
    post-judgment facts, she was appointed administrator
    ad litem on March 7, 2013, approximately five weeks
    after the 30-day period for filing a notice of appeal had
    expired. “The time limit set out in Rule 4 is
    jurisdictional in a civil case [and] this court has no
    discretion to expand the time limit set out in Rule 4.”
    We acknowledged in Goss “that trial courts can, in
    certain extraordinary circumstances, grant relief in
    accordance with the requirements of Rule 60.02,
    T.R.C.P., to parties who failed to file their notice of
    appeal within the period of time provided for in the
    Tennessee Rules of Appellate Procedure,” but that
    such relief “relating to timeliness of an appeal is
    available only under the most unusual, rare,
    compelling and propitious circumstances.” In any
    event, Ms. Dry did not seek relief under Rule 60.02
    from the trial court.
    Dry II, 
    2016 WL 343958
    , at *4 (quoting Dry I, 
    2014 WL 295777
    , at *6-7 (internal
    citations omitted)). We held that the trial court did possess jurisdiction to act on Ms.
    Dry’s motion as administrator ad litem to alter/amend or vacate and remanded for further
    proceedings. See Pearson v. Koczera, No. E2015-02081-COA-R3-CV, 
    2016 WL 5343958
    (Tenn. Ct. App. Sept. 23, 2016) (“Dry II”).
    Upon remand back to the trial court, on December 1, 2016, Ms. Dry filed a motion
    -6-
    for recusal of the trial judge for personal bias. Her motion to alter/amend or vacate, along
    with the recusal motion, came on for hearing on December 6, 2016, at which time all the
    motions were denied. The trial court applied the law of the case doctrine and concluded
    that the suggestion of death was properly served, that Ms. Dry had ample time to take
    action to preserve the third-party complaint but failed to do so, that the circumstances
    causing delay were within Ms. Dry’s control, that there was prejudice to the third-party
    defendants as a result of her delay, that Ms. Dry failed to pay appropriate attention to the
    matter, that Ms. Dry failed to act reasonably, and that Ms. Dry has not shown excusable
    neglect warranting an extension of time. After Ms. Dry’s timely appeal, this case is again
    before us for review.
    II. ISSUES
    Ms. Dry raises the following issues in this appeal:
    1. Did the trial court err by failing to grant the administrator
    ad litem’s motion to substitute?
    2. Did the trial court err by failing to vacate the December 28,
    2012 order because it is void?
    3. Did the trial court violate the administrator ad litem’s state
    and federal constitutional rights by refusing to hear the
    motions that she filed in the trial court?
    4. Did the trial court abuse its discretion by denying the
    administrator ad litem’s motion for enlargement of time in
    which to file a motion to substitute?
    5. Did the trial court err by failing to grant the administrator
    ad litem’s recusal motion?
    The appellees raise the following issues on appeal:
    1. Whether the trial court erred in denying Ms. Dry’s “motion
    for recusal of the court.”
    2. Whether the trial court erred in denying Ms. Dry’s Rule
    59.04/Rule 60.02 motion, and her Rule 6 “motion to
    substitute and/or motion for enlargement of time.”
    III. STANDARD OF REVIEW
    Our review is de novo upon the record, with a presumption of correctness as to
    any factual determinations made by the trial court, unless the evidence preponderates
    otherwise. Tenn. R. App. P. 13(d). Murfreesboro Med. Clinic, P.A. v. Udom, 
    166 S.W.3d 674
    , 678 (Tenn. 2005)). The trial court’s conclusions of law, however, are
    -7-
    accorded no such presumption. 
    Id. The interpretation
    of the Tennessee Rules of Civil Procedure is a question of law.
    Sowell v. Estate of Davis, No. W2009-00571-COA-R3-CV, 
    2009 WL 4929402
    , at *3
    (Tenn. Ct. App. Dec. 21, 2009). The resolution of the motions at issue turns on the
    application of the rules to the facts of this case. “Trial courts are afforded broad judicial
    discretion in procedural matters in order to expedite litigation and to preserve
    fundamental rights of the parties.” Douglas v. Estate of Robertson, 
    876 S.W.2d 95
    , 97
    (Tenn. 1994). An appellate court will not reverse a trial court’s discretionary judgment
    unless it affirmatively appears that such discretion has been explicitly abused to the great
    injustice and injury of the party complaining. See Tenn. R. App. P. 36(b); Bruce v.
    Bruce, 
    801 S.W.2d 102
    , 107 (Tenn. Ct. App. 1990).
    The trial court’s ruling on the motion for disqualification or recusal shall be
    reviewed by the appellate court under a de novo standard of review. Tenn. Sup. Ct. R.
    10B, § 2.06. Prior to the adoption of Rule 10B, appellate courts reviewed recusal
    decisions under an abuse of discretion standard. See State v. Hester, 
    324 S.W.3d 1
    , 72-73
    (Tenn. 2010); Bailey v. Blount Cnty. Bd. of Educ., 
    303 S.W.2d 216
    , 239-40 (Tenn. 2010).
    IV. DISCUSSION
    I.
    Recusal
    The first issue we address is whether the trial court erred in not recusing itself.
    According to Rule 2.11 the Rules of Judicial Conduct:
    (A) A judge shall disqualify himself or herself in any
    proceeding in which the judge’s impartiality might reasonably
    be questioned, including but not limited to the following
    circumstances:
    (1)    the judge has a personal bias or prejudice concerning a
    party or a party’s lawyer, or personal knowledge of
    facts that are in dispute in the proceeding.
    ***
    Tenn. Sup. Ct. R. 10, 2.11(A)(1). Additionally, the Tennessee Supreme Court Rules
    provide:
    -8-
    Upon the filing of a motion pursuant to section 1.01 (for
    recusal), the judge shall act promptly by written order and
    either grant or deny the motion. If the motion is denied, the
    judge shall state in writing the grounds upon which he or she
    denies the motion.
    Tenn. Sup. Ct. R. 10B, § 1.03.
    A core tenet of our jurisprudence is that litigants have a right to have their cases
    heard by fair and impartial judges. Kinard v. Kinard, 
    986 S.W.2d 220
    , 228 (Tenn. Ct.
    App. 1998). Judges must conduct themselves “at all times in a manner that promotes
    public confidence in the integrity and impartiality of the judiciary.” Tenn. Sup. Ct. R. 10,
    Cannon 2(A), 3(B)(2).
    “To disqualify, prejudice must be of a personal character, directed at the litigant,
    and must stem from an extrajudicial source and result in an opinion on the merits on
    some basis other than what the judge learned from participation in the case.” Watson v.
    City of Jackson, 
    448 S.W.3d 919
    , 929 (Tenn. Ct. App. 2014) (citing Alley v. State, 
    882 S.W.2d 810
    , 821 (Tenn. Crim. App. 1994)). If the bias is alleged to stem from events
    occurring in the course of the litigation, the party seeking recusal has a greater burden to
    show bias that would require recusal, i.e., that the bias is so pervasive that it is sufficient
    to deny the litigant a fair trial. McKenzie v. McKenzie, No. M2014-00010-COA-10B-
    CV, 
    2014 WL 575908
    , at *3 (Tenn. Ct. App. Feb. 11, 2014). Rulings of the trial judge,
    even if erroneous, numerous, and continuous, do not, without more, justify
    disqualification. 
    Id. (citing Duke
    v. Duke, 
    398 S.W.3d 665
    , 671 (Tenn. Ct. App. 2012)).
    “[J]udicial remarks during the course of a trial that are critical or disapproving of, or even
    hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
    challenge.” United States v. Adams, 
    722 F.3d 788
    , 836 (6th Cir. 2013). Recusal is not
    required because a judge has formed an opinion that a particular counsel is abrasive.
    Marcum v. Caruana, No. M2012-01827-COA-10B-CV, 
    2012 WL 3984631
    , at *7 (Tenn.
    Ct. App. Sept. 11, 2012). “A judge’s irritation or exasperation with counsel, criticism of
    counsel for perceived delays or failures to follow rules, friction occurring during
    litigation, or even sanctions or contempt charges do not establish the objective personal
    bias that would prevent a fair assessment of the merits of the case.” McKenzie, 
    2014 WL 575908
    , at *5. Further, the mere fact that a judge has ruled adversely to a party in a prior
    judicial proceeding is not grounds for recusal. See State v. Hines, 
    919 S.W.2d 573
    , 578
    (Tenn. 1995).
    A motion for recusal should be timely filed when the facts forming the basis of
    that motion become known. Davis v. Tenn. Dept. of Employment Sec., 
    23 S.W.3d 304
    ,
    313 (Tenn. Ct. App. 1999). Failure to seek recusal in a timely manner may result in the
    waiver of any complaint concerning the judge’s impartiality. 
    Id. -9- Ms.
    Dry contends that the trial judge showed a personal bias toward her and her
    deceased husband, Dr. Dry. Additionally, she alleges bias from actions, statements, and
    rulings made during or as a result of various hearings.
    The court’s comments relied upon by Ms. Dry do not support her claim of bias and
    prejudice. The transcripts before us do not reflect the judge as being disrespectful to
    counsel. Statements of fact based upon the trial judge’s observations in court did not
    indicate any bias toward Ms. Dry on any extrajudicial information. The record before us
    reveals that the trial court presided over this matter in a neutral and unbiased manner.
    We find no improper rulings, remarks, or conduct at trial by the judge that can be
    attributed to partiality. Thus, we affirm the trial court’s order denying recusal.
    II.
    Rule 60.025
    Rule 60.02 of the Tennessee Rules of Civil Procedures provides:
    On motion and upon such terms as are just, the court may
    relieve a party or the party’s legal representative from a final
    judgment, order or proceeding for the following reasons: (1)
    mistake, inadvertence, surprise or excusable neglect; . . . (3)
    the judgment is void; (4) . . . a prior judgment upon which it
    is based has been reversed or otherwise vacated; or (5) any
    other reason justifying relief from the operation of the
    judgment.
    Tenn. R. Civ. P. 60.02.
    Ms. Dry contends that the final judgment dismissing the third-party complaint was
    void. She argues that neither the trial court nor this court had the authority or jurisdiction
    to hold that the appellees provided proper notice of suggestion of death as required by
    Rule 25.01 of the Tennessee Rules of Civil Procedure. According to Ms. Dry, because
    we held that she did not have standing to pursue the prior appeal, our prior ruling as to
    proper notice is dicta and not binding on either the trial court or this court in this appeal.
    Ms. Dry then argues that because she was not personally served with the notice of
    suggestion of death, the court never acquired personal jurisdiction over her. She asserts
    that even if the case was properly dismissed as to her in her personal capacity, it was not
    dismissed to her in her capacity as administrator ad litem. She notes in her brief that
    since she became administrator ad litem and filed her motion to substitute on April 11,
    2013, she was never properly served with the suggestion of death. Thus, Ms. Dry argues
    5
    Ms. Dry conceded that relief pursuant to Rule 59.04 was time-barred.
    - 10 -
    “that the ninety (90) day window in which to file a Motion to Substitute has still not yet
    been opened, much less closed.”
    The appellees assert that once the notice of suggestion of death was placed on the
    record, Ms. Dry, as surviving spouse or law partner of Dr. Dry, or any other heir,
    successor or representative, could have properly filed a motion to substitute a person in
    place of Dr. Dry, and that motion, along with notice of a hearing on the motion, would
    have to be served on non-parties, presumably other heirs, pursuant to Rule 4. According
    to the appellees, contrary to the assertions of Ms. Dry, it is not the suggestion of death
    that has to be served on non-parties in accordance with Rule 4, but rather the motion to
    substitute. As it has been established by this court’s prior ruling that the notice of
    suggestion of death was properly served, the appellees contend that the judgment of
    dismissal is not void. Rule 25.01 provides that, subsequent to the notice of suggestion of
    death on the record, “[t]he motion for substitution may be made by any party or by the
    successors or representatives of the deceased party, and, together with the notice of
    hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties
    in the manner provided in Rule 4 for the service of process.” The dispositive motions by
    Attorneys were filed 138 days after the suggestion of death was served. On December 4,
    2012, 163 days after the notice of suggestion of death was served, Attorneys served Ms.
    Dry with a notice of hearing on their motions, with the hearing set for December 20,
    2012. Ms. Dry does not contend that she did not receive the motions and the notice of
    hearing.
    Ms. Dry’s arguments in this appeal are similar to the ones she raised in both the
    first and second appeals concerning service of the suggestion of death, due process
    considerations, and her reasons for not positioning herself to have standing as
    administrator ad litem or seeking an enlargement of time either before or within thirty
    days after the trial court dismissed the third-party complaint. In our Dry I opinion, we
    noted as follows:
    We first address the issue of whether the trial court correctly
    granted the defendants’ motion to dismiss for failure to file a
    motion for substitution within 90 days after the defendants
    filed a suggestion of death. Ms. Dry argues that the 90-day
    period provided in Tenn. R. Civ. P. 25.01 was not triggered
    because the defendants did not properly serve notice of the
    suggestion of death. We disagree. The defendants served
    notice by filing the suggestion of death with the trial court
    and by mailing a copy to all parties. A copy of the suggestion
    of death was mailed to the Dry Law Firm at its Oak Ridge
    address. At that time, Ms. Dry was a co-defendant with Dr.
    Dry in the malicious prosecution action; co-counsel with Dr.
    Dry representing the Koczeras as defendants in the malicious
    - 11 -
    prosecution action; and Dr. Dry’s surviving spouse. . . .
    Moreover, the Dry Law Firm actually received the notice and
    copy of the suggestion of death. . . . Ms. Dry admitted at oral
    argument that the Dry Law Firm was open and operating at its
    Oak Ridge address at the time the suggestion of death was
    mailed. . . . Under these circumstances, we hold that the
    defendants provided sufficient and proper notice under Tenn.
    R. Civ. P. 25.01.
    Dry I, 
    2014 WL 295777
    at *4. As we further noted in the Dry I opinion,
    Ms. Dry had clear avenues for potential relief in the
    trial court. As the Supreme Court stated twenty years
    ago,
    Rule 25.01 clearly directs the dismissal of an action if
    no motion for substitution of parties is made within 90
    days after suggestion of death upon the record.
    However, Rule 6.02, Tenn. R. Civ. P. grants the trial
    judge broad discretion to enlarge many of the
    procedural time limitations prescribed by the Rules of
    Civil Procedure. Rule 6.02 states in pertinent part:
    When by statute or by these rules or by a notice given
    thereunder or by order of court an act is required or
    allowed to be done at or within a specified time, the
    court for cause shown may, at any time in its
    discretion, (1) with or without motion or notice order
    the period enlarged if request therefore is made before
    the expiration of the period originally prescribed or as
    extended by a previous order, or (2) upon motion made
    after the expiration of the specified period permit the
    act to be done, where the failure was the result of
    excusable neglect . . .
    ***
    Tenn. R. Civ. P. 6.02 grants the trial judge wide
    latitude to enlarge on statutory or rule mandated
    limitations for the performance of acts required or
    allowed to be done within a specified time. Cause
    must be shown, to which we add the requirement that
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    it must be reasonable cause. The largesse may be
    granted even if application is made after the expiration
    of the specified period allowed to make the request
    where the failure was the result of excusable neglect.
    Douglas [v. Estate of Robertson], 876 S.W.2d [95] at
    97-98 [(Tenn. 1994)]. Thus, Ms. Dry could have filed
    a motion under Rule 6.02 to enlarge the procedural 90-
    day limitation on the ground that the failure to file a
    motion to substitute was the result of excusable
    neglect. Moreover, the trial court told Ms. Dry that it
    was amenable to considering a motion to reconsider its
    ruling that Dr. Dry’s third-party action should be
    dismissed, stating the following at the hearing:
    What I would suggest that you do is if you’re going to
    retain counsel in reference to this matter, and it may be
    that somebody may want to file a motion for
    reconsideration, I have no earthly idea what you all are
    going to do, but I’m inclined to grant [defendants’]
    motions as have been argued here based upon my
    review of the record . . .
    ***
    [Defendants’ counsel are] going to go ahead and
    prepare orders and they’re going to forward those
    orders to you. I suggest that you take that –take it to a
    lawyer.
    If you want to file something for reconsideration, I’ll
    be more than happy to consider it once a lawyer gets
    involved in the matter.
    Ms. Dry did not file a motion to alter or amend or
    otherwise ask the court to reconsider. The trial court’s
    order of dismissal was a final judgment upon its entry
    on December 28, 2012. The 30-day period for filing a
    notice of appeal started on that date.
    ***
    Ms. Dry’s actions in petitioning the trial court to be
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    appointed administrator ad litem and hiring herself as
    counsel for administrator ad litem came too late to
    save this appeal. According to her motion to consider
    post-judgment facts, she was appointed administrator
    ad litem on March 7, 2013, approximately five weeks
    after the 30-day period for filing a notice of appeal had
    expired.
    Dry I at *5-7.
    Ms. Dry is bound by our prior rulings that the suggestion of death was properly
    served. She inexcusably failed to move to substitute and, in addition, failed to move for
    an enlargement of time to substitute. Likewise, she failed to timely file a motion for
    reconsideration or to alter or amend. She completely failed to take any action whatsoever
    to preserve the third-party complaint. Ms. Dry had sixteen days from the notice of
    hearing to the date of the hearing to file a motion with the court for enlargement of time
    to substitute a new third-party plaintiff. She had 179 days from the notice of suggestion
    of death to move for enlargement of time to substitute. She had the same amount of time
    to move the probate court to appoint her as administrator ad litem, which would have
    enabled her to enter an appearance as counsel for the third-party plaintiff and substitute
    herself as third-party plaintiff.
    Ms. Dry has not made a showing of any compelling circumstances in her Rule
    60.02 motion. She is unable to show the judgment of dismissal is void and that she is
    entitled to any relief under Rule 60.02. Accordingly, the trial court correctly denied her
    claim for extraordinary relief.
    Rule 6.02
    Despite the mandatory language set forth in Rule 25.01(1), Rule 6.02 of the
    Tennessee Rules of Civil Procedure provides that the time within which an act must be
    performed may be enlarged upon the showing of excusable neglect:
    When by statute or by these rules or by a notice given
    thereunder or by order of court an act is required or allowed
    to be done at or within a specified time, the court for cause
    shown may, at any time in its discretion, (1) with or without
    motion or notice order the period enlarged if request therefor
    is made before the expiration of the period originally
    prescribed or as extended by a previous order, or (2) upon
    motion made after the expiration of the specified period
    permit the act to be done, where the failure to act was the
    result of excusable neglect. . . .
    - 14 -
    Rule 6.02 grants the trial judge broad discretion to enlarge many of the procedural time
    limitations prescribed by the Rules of Civil Procedure. Section (2) of the rule is
    applicable only if Ms. Dry can prove that her failure to timely act to file motions for the
    enlargement of time and to substitute was a result of excusable neglect.
    Determining whether neglect is excusable is an equitable determination “taking
    account of all relevant circumstances surrounding the party’s omission.” Pioneer
    Investment Servs. Co. v. Brunswick Assoc., Ltd. P’ship, 
    507 U.S. 380
    , 395 (1993). The
    relevant circumstances consider all causes and effects, including (1) the danger of
    prejudice to the party opposing the late filing; (2) the length of delay and its potential
    impact on proceedings; (3) the reason why the filing was late and whether that reason or
    reasons were within the filer’s reasonable control; and (4) the filer’s good or bad faith.
    
    Id. A party’s
    failure to meet a deadline may have causes ranging from forces beyond its
    control to forces within its control. 
    Id. at 387,
    388. The former will almost always
    substantiate a claim of excusable neglect; the latter will not. Id.; State ex rel. Sizemore v.
    United Physicians, 
    56 S.W.3d 557
    , 570 (Tenn. Ct. App. 2001).
    When asked about any other reasons for excusable neglect, the appellees note that
    Ms. Dry “launched into a recitation of her unfamiliarity with the law – that despite having
    practiced ten years, until this case, she had never heard of a Suggestion of Death, nor the
    procedure for substitution following a death.” She noted that she was “only Dr. Dry’s
    employee and never lead counsel.” She returned to the argument concerning service:
    I didn’t just even think about just filing a motion for extra
    time because, like I said, I had never been put on notice that
    they had filed a suggestion of death. I had no idea that I had
    any duty to do anything. I did not have a legal duty. And if
    you read like what the purpose is of the personal service is to
    put someone on notice so that they know they need to do
    something.
    The reasons given by Ms. Dry do not establish excusable neglect. As argued by the
    appellees, the means to preserve Dr. Dry’s claim were within her control. Prior to the
    dismissal, she could have sought appointment or filed a Rule 6.02 motion requesting
    more time to permit her to become appointed and substitute in. During the 30-day period
    after the dismissal, she could have filed motions under Rules 6.02, 59.04, or 60.02.
    In this case, the record clearly indicates that Ms. Dry failed to take any action to
    timely preserve the cause of action despite having actual knowledge of the suggestion of
    death, actual knowledge of the filing of the appellees’ motion to dismiss for failure to
    substitute and motion for judgment on the pleadings, and actual notice of the hearing on
    the pending motions. Although she had knowledge, Ms. Dry did not pay attention to this
    - 15 -
    matter despite the fact that remedial action was within her control. She failed to timely
    respond and to protect her own interests. Further, the appellees were harmed by Ms.
    Dry’s actions. If Ms. Dry had properly and timely arranged for substitution, the appellees
    would not have had to incur the time and expense of responding to Ms. Dry’s continual
    court filings, appeals, and litigation of this matter since 2012. Therefore, Ms. Dry is not
    entitled to any relief based on her claim of excusable negligence. Under the
    circumstances before us, we believe that the trial court was justified in ruling that the
    conduct of Ms. Dry was not excusable. Thus, we conclude that Ms. Dry has failed to
    show that the trial court abused its discretion in denying the motion to enlarge time.
    V. CONCLUSION
    We affirm the ruling of the trial court denying (1) the Rule 60.02 motion to
    alter/amend or vacate the dismissal of the third-party complaint, (2) the Rule 6.02 motion
    for enlargement of time, and (3) the motion for recusal. The case is remanded for the
    collection of costs below. Costs on appeal shall be assessed to the appellant, Wanda
    McClure Dry, administrator ad litem for the Estate of Laurence R. Dry.
    _________________________________
    JOHN W. MCCLARTY, JUDGE
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