Linda Beard v. James William Branson, et al.

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.