Skip to content

RULE 25. SUBSTITUTION OF PARTIES

July 25, 2011

RULE 25.01: DEATH.

(1) 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.

(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

RULE 25.02: INCOMPETENCY.

If a party becomes incompetent, the court upon motion served as provided in Rule 25.01 may allow the action to proceed by or against the party’s representative.

RULE 25.03: TRANSFER OF INTEREST.

In case of any transfer of interest the action may proceed by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in Rule 25.01.

RULE 25.04: PUBLIC OFFICERS – DEATH OR SEPARATION FROM OFFICE.

(1) When an officer of the state, a county, a city or other governmental agency is a party to an action in the officer’s official capacity and during its pendency dies, resigns, or otherwise ceases to hold the office, the action does not abate and the officer’s successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When an officer of the state, a county, a city or other governmental agency sues or is sued in the officer’s official capacity, he or she may be described as a party by the officer’s official title rather than by name; but the court may require that the officer’s name be added.

Advisory Commission Comments.

25.01: Prior law, whether common law or statute, (Tenn. Code Ann. §§ 20-5-101 – 20-5-120), governing survival of actions after death of a party is not changed by this rule. Rule 25.01 allows substitution of the proper parties upon motion and notice.

Rule 25.01 provides that suit will be dismissed unless a motion for substitution of party is made not later than 90 days after the death is suggested upon the record.

25.02: Rule 25.02 covers those cases in which a party, competent at the beginning of an action, later becomes incompetent. In such cases, the rule empowers the court, on motion, to allow the action to proceed by or against the incompetent’s representative.

25.04: When a public officer sues or is sued in his or her official capacity, the real party in interest is normally the governmental institution or agency which the officer represents. Rule 25.04 recognizes this fact and provides for automatic substitution of a successor officer in case of the death, resignation or other vacation of office by the named officer. To avoid the whole problem, the Rule also allows the suit to be brought against a public officer in an official capacity by describing the officer by official title rather than by name.

Advertisements
Leave a Comment

Don't be shy! Leave a Reply!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: