Carl O. Koella, Jr. vs. Fred McHargue, et al

This is the second time that this case has been before us on appeal. On the first appeal, which was filed with respect to an order entered pursuant to Tenn. R. Civ. P. 54.02, we affirmed the trial court's grant of partial summary judgment to the plaintiff on the primary issue raised by the original complaint for declaratory judgment. While that case was pending on appeal, the original plaintiff, Carl O. Koella, Jr., died, and, on motion of his counsel, we entered an order substituting his widow, Maribel Koella, in his place. On remand, the plaintiff -- not otherwise identified in the pleading -- filed a motion in the trial court to dismiss the defendants' still-pending counterclaim. That motion was based on the failure of the defendants, in their capacity as counter-plaintiffs, to file a motion "to substitute the proper party for [Mr. Koella] in the trial court." The trial court granted the motion. We reverse.