Simmons v. Islam, No. M2025-01261-COA-R3-CV (2026)

Case details
Full caption
TRAY SIMMONS v. DR. SHAHIDUL ISLAM
Country
United States
Jurisdiction
Tennessee (TN)
Court
Tennessee Supreme Court
Decided
2026
Disposition
Dismissed
Majority
Jeffrey Usman (Justice), joined by Kelly Thomas (Justice), Jr (Justice), Mark Ward (Justice), Sp (Justice)
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1431143Only the Westlaw citation is currently available.SEE COURT OF APPEALS RULES 11 AND 12Court of Appeals of Tennessee.TRAY SIMMONSv.DR. SHAHIDUL ISLAM ET AL.No. M2025-01261-COA-R3-CV|Assigned on Briefs February 4, 2026|05/21/2026Appeal from the Circuit Court for Davidson County No.15C1107 Joseph P. Binkley, Jr., JudgeThe Appellant brought suit against his psychiatrist and thepsychiatrist's clinic, but the trial court granted summaryjudgment to the defendants. After appellate briefing and oralargument but prior to the filing of the opinion of the Courtof Appeals affirming the trial court, the psychiatrist died.The Appellant became aware of the death after the TennesseeSupreme Court denied his application for permission toappeal. He, subsequently, filed numerous motions for relief inthe trial court. The trial court denied relief under Rule 60 anddenied the other motions. We affirm.Tenn. R. App. P. 3 Appeal as of Right; Judgment of theCircuit Court AffirmedAttorneys and Law FirmsTray Simmons, Hermitage, Tennessee, pro se.Jeffrey Usman, J., delivered the opinion of the court, in whichD. Kelly Thomas, Jr., and W. Mark Ward, SP. JJ., joined.OPINIONJEFFREY USMAN, JUDGEI.*1 In 2015, Tray Simmons brought a health care liabilityaction against his psychiatrist, Dr. Shahidul Islam, and againstAnxiety Depression Disorders Clinic (the Clinic), Dr. Islam'sclinic. After discovery, Dr. Islam and the Clinic moved forsummary judgment on the basis that Mr. Simmons could notestablish damages with expert testimony. The motion wasbased on a conflict between two sworn statements providedby Dr. Sherri Studstill, who was Mr. Simmons's expert. Dr.Studstill's affidavit stated that Mr. Simmons suffered injuryas a result of Dr. Islam's breach of the standard of care,but in her deposition, she stated only that damages were“possible.” Simmons v. Islam, No. M2023-01698-COA-R3-CV, 2024 WL 4948939, at *2-3 (Tenn. Ct. App. Dec. 3,2024), perm. app. denied (Tenn. Apr. 17, 2025). The trialcourt granted summary judgment to Dr. Islam and the Clinic,and it subsequently denied a motion to alter or amend. Id. at*3-4.Mr. Simmons appealed. The case was briefed on appealand then argued before the Court of Appeals in July 2024.This court's appellate decision was filed in December 2024.According to documents filed in the trial court after theconclusion of the appeal, Dr. Islam passed away on August12, 2024. In November 2024, Dr. Islam's widow filed apetition to open the estate and to be appointed the personalrepresentative.In this court's December 2024 opinion, we affirmed thegrant of summary judgment against Mr. Simmons. Id. at*10. We held that, in accordance with the cancelation rule,the trial court did not err in concluding that Dr. Studstill'scontradictory sworn statements cancelled one another out,leaving the plaintiff with no expert testimony establishingdamages. Id. at *9. This court also denied relief as toMr. Simmons's arguments related to purported fraud, hisarguments related to evidentiary errors, and his challenge tothe costs awarded by the court. Id. at *5-10. Mr. Simmonssought permission to appeal to the Tennessee Supreme Court,which denied review on April 17, 2025. Simmons v. Islam, No.M2023-01698-SC-R11-CV (Tenn. Apr. 17, 2025) (Order).Mr. Simmons avers that he became aware of the death of Dr.Islam on April 19, 2025. It is unclear from the technical recordprovided by the trial court clerk when defense counsel becameaware of the death, but Mr. Simmons alleges it was in August2024, after oral arguments in the Court of Appeals but beforethe Court of Appeals issued its ruling.
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2After the Tennessee Supreme Court denied review, Mr.Simmons filed a motion in this court seeking to substituteDr. Islam's widow as a party, seeking sanctions against theattorneys for failure to disclose the death, and seeking torevisit the merits of his health care liability action. Thiscourt found that it was without jurisdiction to address thearguments, as the clerk's office had issued the mandate.Simmons, No. M2023-01698-COA-R3-CV (Tenn. Ct. App.May 27, 2025) (Order).Mr. Simmons then filed numerous motions in the trial court.We list them here. He filed a “Motion to Stay ProceedingsPending Appellate Review,” in which he sought to have thecourt stay proceedings while he tried to recall the appellatemandate; a “Motion for Expedited Hearing on the Groundsof Motion to Lift Protective Order,” in which he soughtto lift a protective order barring him from having contactwith Dr. Islam's widow; a “Motion for Expedited HearingRequested on the Grounds to Lift the Pro[tec]tive Orderof Mrs. Islam for Subs[t]itution,” reiterating a desire tolift the protective order based on the death of Dr. Islamand premised on his widow's having served as executorof the estate; a “Motion for Expedited Hearing on theGrounds of Motions Being Heard on June 23, 2025 andT.R.C.P. 25.01 for Suggestion Of Death”; a “Motion toSuggest Death on the Record”; a “Motion to Reopen andSet Aside All Judgments for Misconduct by Attorneys UnderTennessee Rules of Civil Procedure 60.02, Te[n]nessee Rulesof Civil Procedure 25.01, T.C.A.§ 61-15-711 T.C.A. andT.C.A. § 20-5-102 Based on Procedural Error Violation ofthe Attorneys Not Substitu[t]ing the Defendant During theAppeal as the Defendant Was Deceased and Caused Harmto the Plaintiff,” in which he sought to reopen and set asideall prior judgments based on alleged attorney misconduct;a “Motion for Sanctions Under Rule 11.03 of TennesseeRules of Civil Procedure, Rule 3.3 of the Tennessee Rulesof Professional Conduct, Rule 8 of the Tennessee SupremeCourt Rules and Tennessee Rules of Civil Procedure 25.01Against Defendant's Attorneys ... For Not Disclosing to theCourt of Appeals, Fifth Circuit Court and the Plaintiff of theDeath of the Defen[d]ant Shahidul Islam Before the Opinionto Affirm the Tenn. Court of Appeals Court Opinion,” seekingsanctions against Dr. Islam's attorneys for failing to file asuggestion of death; a “Motion for Expedited Hearing onthe Grounds of Motion to Substitution of Mrs. Islam”; a“Motion for Subs[t]itution [of Dr. Islam's Widow] as Executorto the Estate of Dr. Shahidul Islam Under Tennessee Rulesof Civil Procedure 25.01 and Tennessee Code Annotated §16-15-711 or Substitute a[ ] Special Admin[i]strator”; and a“Plaintiff's Motion for Relief from Final Judgment (Tenn. R.Civ. P. 60.02) to Vacate Summary Judgment and for Leave toReargue the Merits.”*2 As Exhibit E to his Rule 60 motion, Mr. Simmonsattached a July 2025 response by defense counsel to the Boardof Professional Responsibility, addressing a bar complaintMr. Simmons had filed. Mr. Simmons was attempting to relyon the Exhibit to show the timing of counsel's knowledgeof Dr. Islam's death. The attorneys who had represented Dr.Islam and the Clinic moved to strike Exhibit E, arguingthat any such responses were confidential and that suchconfidentiality applied to non-attorneys under Doe v. Boardof Professional Responsibility of the Supreme Court ofTennessee, 104 S.W.3d 465 (Tenn. 2003). Counsel also arguedin opposition to Mr. Simmons's motions, including the Rule60 motion, the motion for substitution, and the motionfor sanctions, asserting that nothing warranted revisitingsummary judgment, that the case was concluded, that nosuggestion of death had properly been filed, and that thesanctions motion did not comply with procedural mandates orotherwise have merit.Mr. Simmons replied by reasserting some arguments in hisprevious filings. In addition, he argued that he had obtainedan affidavit from Dr. Studstill in April 2025,1 after this court'sappellate decision, and that this new affidavit would defeatsummary judgment.The trial court entered an order disposing of all of Mr.Simmons's filings. The court determined that the grant ofsummary judgment constituted the law of the case and thatMr. Simmons's filings were merely an attempt to launch acollateral attack on the ruling. The trial court further foundthat Mr. Simmons's motion to substitute a party for Dr. Islamwas “unnecessary and procedurally improper,” and that therewas no jurisdictional basis to challenge the prior judgment.The court found that “the death of Dr. Islam is totally andcompletely not relevant to these proceedings,” and it deniedRule 60 relief, the motion to substitute, the motion forsanctions, and the motion to lift the protective order. The courtgranted the Defendants’ motion to strike Exhibit E related tothe board complaint. Mr. Simmons moved for the court tomake findings pursuant to Tennessee Rule of Civil Procedure52.01, and the court denied the motion, concluding that themotions at issue were not covered by the plain language ofthe Rule.
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3Mr. Simmons appealed. His appeal has included multiplefilings in this court. On appeal, he has filed thefollowing motions: “Appellant's Motion to Supplementthe Record with Exhibit E”; “Appellant's SupplementalNotice Regarding Public Status of Exhibit E and Third-Party Affidavit”; “Expedited Motion to Deny Representationof Deceased Party and to Vacate All Filings EnteredWithout Substitution”; “Appellant's Motion for SanctionsAgainst Appellees’ Counsel”; “Appellant's Supplement toExpedited Motion to Deny Unauthorized Representation,Strike Post-Death Filings, Vacate Post-Death Opinion, andRemand for Substitution”; “Expedited Motion to CompelFormal Admission of Counsel's Knowledge of Party's Deathand [Sole Proprietorship], and for Costs and Sanctions”;“Appellant's Motion for Relief from Judgment Basedon Fraud Upon the Court, Intentional Concealment, andDue Process Violations”; “Petition for En Banc Review”;“Motion to Supplement Appellate Record Under Tenn. R.App. P. 24(e) Relief Requested”; “Appellant's Motion toStrike Appellees’ Consolidated Response for UnauthorizedRepresentation and Failure to Comply with Rule 25.01and Rule 19(A)”; “Appellant's Motion Requesting Rulingon All Pending Motions”; “Appellant's Formal Noticeof Unauthorized Representation”; “Appellant's Motion toRequire Appellees to Address Substitution, Authority,and Post-Death Representation in Their Appellate Brief”;“Motion to Require Separate Responses to Pending Motions”;“Motion for Clarification of March 31, 2026 Order”; and“Notice Regarding Protective Order and Communication.” Inaddition, he has filed various responses and replies related tothe motions. The attorneys who represented Dr. Islam and theClinic in the prior appeal responded to many of these motions.*3 This court reserved judgment on the bulk of the motions.However, this court also issued an order striking Appellees’filings and noting that “we know of no authority that wouldpermit counsel to continue to represent Dr. Islam or the Clinicin this Court after Dr. Islam's death, and counsel has cited tono such authority.” The attorneys for Dr. Islam and the Clinicwere later permitted to withdraw. Accordingly, this appeal isproceeding with only one party properly before the court.Mr. Simmons raises multiple issues on appeal. He delineatedthese issues as follows:1. Failure to Substitute:Standard of Review: Whether a trial court retainsjurisdiction in the absence of proper substitution underTenn. R. Civ. P. 25.01 and Tenn. R. App. P. 19 is aquestion of law, reviewed de novo with no presumptionof correctness. See Lacy v. Cox, 152 S.W.3d 480, 483(Tenn. 2004) (jurisdictional questions reviewed de novo);In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. Ct.App. 2009) (failure to substitute is a procedural defect withjurisdictional implications).1.Whether the trial court erred by proceeding withoutsubstitution of Appellee's estate after his death during theprior appeal, in violation of Tenn. R. App. P. 19 and Tenn.R. Civ. P. 25.01, despite Appellant's timely motions underboth rules.2. Improper “No Harm” Finding:Standard of Review: A trial court's determination ofwhether an error is harmless under Tenn. R. App. P. 36(b)is a mixed question of law and fact. Factual findings arereviewed de novo with a presumption of correctness unlessthe evidence preponderates otherwise; legal conclusionsare reviewed de novo with no presumption. See Statev. Rodriguez, 254 S.W.3d 361, 371–72 (Tenn. 2008)(harmless-error analysis is a legal question reviewed denovo); In re Estate of Oakley, 2014 WL 1878766, at 4(Tenn. Ct. App. May 8, 2014)* (applying mixed standard).2.Whether the trial court erred in concluding Appellant“was not harmed” by the substitution failure withoutapplying the prejudice standard in Tenn. R. App. P. 36(b)or making the required findings of fact.3. Fraud on the Court / Concealment:Whether the concealment of Dr. Islam's death by defensecounsel constituted fraud on the court and caused prejudiceby foreclosing Appellant's ability to conduct discovery,pursue enforcement, or seek sanctions before the estateclosed and the clinic dissolved.4. Protective Order Abuse of Discretion: Whether thetrial court abused its discretion by refusing to liftthe protective order on Mrs. Hosneara Islam, therebypreventing Appellant from obtaining relevant evidenceabout the timing of Dr. Islam's death, the estate's assets, andthe clinic's operations.5. Exclusion of Exhibit E: Whether the trial court erred instriking Exhibit E, defense counsel's written admission tothe Board of Professional Responsibility of the date theylearned of Dr. Islam's death where the exhibit was offered toprove knowledge and timing, not for disciplinary purposes.
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.46. A. Denial of Rule 60.02 Relief: Whether the trialcourt erred in denying Rule 60.02 relief by refusingto consider Dr. Studstill's affidavit and other newlydiscovered evidence, and by failing to address howconcealment impacted Appellant's diligence.B. Erroneous Exclusion of Dr. Studstill's Affidavit:Whether the trial court erred in excluding Dr.Studstill's affidavit, which satisfied all admissibilityrequirements under Tennessee and federal law, and whethersuch exclusion caused outcome-determinative prejudicerequiring reversal.*4 7. Blanket Striking of Post-Judgment Motions:Whether the trial court erred in striking all post-judgmentmotions in a blanket order without individualized findings.8. Denial of Rule 11 Sanctions Without Findings: Whetherthe trial court erred in denying Rule 11 sanctions withoutmaking findings of fact or conclusions of law.9. Failure to Address Intertwined Claims: Whether the trialcourt erred in failing to address the intertwined nature ofthe claims against Dr. Islam and the clinic, which made thesubstitution failure prejudicial to both defendants.In essence, he appeals from the denial of Rule 60 relief undermultiple avenues, and he objects to the trial court's findings asto harmlessness and its decisions as to the exclusion of ExhibitE and the protective order. He also asserts the court's findingswere inadequate, that it erred in denying sanctions, and thatit erred in its assessment of “the intertwined nature” of theclaims. Having considered his arguments asserting that thetrial court erred, we conclude Mr. Simmons is not entitled toappellate relief.II.Mr. Simmons is proceeding pro se in this appeal. Pro selitigants “are entitled to fair and equal treatment by thecourts.” Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545,551 (Tenn. Ct. App. 2015). Courts should be mindful that prose litigants often lack legal training and may be unfamiliarwith the justice system. State v. Sprunger, 458 S.W.3d 482,491 (Tenn. 2015). Accordingly, courts should afford somedegree of leeway in considering the briefing from a prose litigant, Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct.App. 2003), and should consider the substance of the pro selitigant's filing. Poursaied v. Tenn. Bd. of Nursing, 643 S.W.3d157, 165 (Tenn. Ct. App. 2021).Pro se litigants may not, however, “shift the burden oflitigating their case to the courts.” Whitaker v. WhirlpoolCorp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).Additionally, “[i]t is not the role of the courts, trial orappellate, to research or construct a litigant's case orarguments for him or her.” Sneed v. Bd. of Pro. Resp. of Sup.Ct., 301 S.W.3d 603, 615 (Tenn. 2010). In considering appealsfrom pro se litigants, the court cannot write the litigants’ briefsfor them, create arguments, or “dig through the record inan attempt to discover arguments or issues that [they] mayhave made had they been represented by counsel.” Murrayv. Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App. 2014). Itis imperative that courts remain “mindful of the boundarybetween fairness to a pro se litigant and unfairness to the prose litigant's adversary.” Hessmer v. Hessmer, 138 S.W.3d 901,903 (Tenn. Ct. App. 2003).III.Mr. Simmons's primary argument on appeal is that thejudgment in the underlying health care liability case is voidbecause the Defendants never filed a suggestion of death ormoved for substitution when Dr. Islam died. He contendsthat the court had no jurisdiction after the death and thatany judgment rendered is a nullity. Although the briefingis unclear on this point, we understand Mr. Simmons'scontention as a challenge to the court's denial of reliefunder Tennessee Rule of Civil Procedure 60.02(3) regardingvoid judgments, since Rule 60 is the proper proceduralmechanism to revisit final judgments. Frazier v. Helton, No.M2008-01237-COA-R3-CV, 2009 WL 1211387, at *3 (Tenn.Ct. App. Apr. 30, 2009) (“The only relief available to aparty after a judgment becomes final is pursuant to Rule 60,Tenn. R. Civ. P.”); City of Memphis v. Beale St. Dev. Corp.,No. W2020-00523-COA-R3-CV, 2021 WL 4282736, at *2(Tenn. Ct. App. Sept. 21, 2021) (“Rule 60.02 has replacedformer remedies for setting aside a final judgment.”); MinorMiracle Prods., LLC v. Starkey, No. M2011-00072-COA-R3-CV, 2012 WL 112593, at *3 (Tenn. Ct. App. Jan. 12,2012) (“In Tennessee, Rule 60 of the Tennessee Rules of CivilProcedure provides the grounds available for setting asidea judgment.”). Mr. Simmons also advances arguments forrelief under Rule 60 based on allegations of fraud and newlydiscovered evidence.
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.5*5 Rule 60.02 provides an avenue to revisit final judgments:On motion and upon such terms as are just, the courtmay relieve a party or the party's legal representativefrom a final judgment, order or proceeding for thefollowing reasons: (1) mistake, inadvertence, surpriseor excusable neglect; (2) fraud (whether heretoforedenominated intrinsic or extrinsic), misrepresentation, orother misconduct of an adverse party; (3) the judgmentis void; (4) the judgment has been satisfied, releasedor discharged, or a prior judgment upon which it isbased has been reversed or otherwise vacated, or it is nolonger equitable that a judgment should have prospectiveapplication; or (5) any other reason justifying relief fromthe operation of the judgment.Tenn. R. Civ. P. 60.02.This Rule is intended to balance the competing principlesof finality and justice. DeLong v. Vanderbilt Univ., 186S.W.3d 506, 511 (Tenn. Ct. App. 2005). In order to preservefinality of judgments, “Rule 60.02 is an ‘escape valve’that should not be easily opened.” NCNB Nat. Bank ofN. Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct.App. 1993). Instead, it “is intended to provide relief only inthe most compelling, unique, exceptional, and extraordinarycircumstances.” DeLong, 186 S.W.3d at 512. Rule 60.02requires the party seeking relief to meet the listed criteria ofthe Rule. Thrailkill, 856 S.W.2d at 153. The movant bears theburden of establishing a basis for relief. Lindsey v. Lambert,333 S.W.3d 572, 576 (Tenn. Ct. App. 2010).A.Mr. Simmons believes that the trial court and appellate courtjudgments in his underlying case are void for failure tosubstitute a party after Dr. Islam's death. He cites to TennesseeRule of Civil Procedure 25.01 regarding substitution in casesof death.2 He also relies on Tennessee Rule of AppellateProcedure 19. Rule 19 states:(a) Death of a Party. If a party dies after a noticeof appeal is filed or while a proceeding is otherwisepending in the appellate court and the claim sought to beenforced is not thereby extinguished, the appellate courtmay order substitution of the proper parties. A motion forsubstitution may be made by any party or by the successoror representative of the deceased party. If a party againstwhom an appeal may be taken dies after entry of a judgmentor order in the trial court but before notice of appeal is filed,an appellant may proceed as if death had not occurred.After notice of appeal is filed, substitution shall be effectedin the appellate court in accordance with this subdivision.If a party entitled to appeal shall die before filing noticeof appeal, notice of appeal shall be filed and served bythe deceased party's personal representative or, if there isno such personal representative, by the deceased party'scounsel of record within the time prescribed in these rules.After notice of appeal is filed and served, substitution shallbe effected in the appellate court in accordance with thissubdivision.....(d) Effect of Failing to Order Substitution. An order ofsubstitution may be entered at any time, but the omissionto enter such order shall not affect the substitution.*6 (e) Addition and Dropping of Parties. Parties maybe added or dropped by order of the appellate court on itsown motion or on motion of a party and on such terms asare just.Tenn. R. App. P. 19. The Advisory Commission Commentnotes that “[i]n accordance with the general spirit of theserules, the omission of an order of substitution is not fatal toan appeal, but may be entered at any time under subdivision(d).” Tenn. R. App. P. 19, Advisory Comm'n Cmt. (emphasisadded).Accordingly, both the Tennessee Rules of Civil Procedure andthe Rules of Appellate Procedure address substitution. “Thereason that the subject of the death of a party is addressed inboth sets of rules is obvious: both trial courts and appellatecourts are faced with situations where a party dies ‘on theirwatch.’ The Rules of Civil Procedure address what must bedone if a party dies while the case is pending in the trialcourt, while the Rules of Appellate Procedure outline theproper procedure if death occurs while the case is on appeal.”Koella v. McHargue, No. E1999-02752-COA-R3-CV, 2000WL 1156622, at *2 (Tenn. Ct. App. Aug. 16, 2000). Thiscourt has previously held that Tennessee Rule of AppellateProcedure 19 rather than Tennessee Rule of Civil Procedure25.01 applies when the trial court has not been presentedwith grounds to dismiss the case under Rule 25.01 below,even though the death occurred prior to appeal. Chase v.Ober Gatlinburg, Inc., No. E2020-00649-COA-R3-CV, 2021WL 3702081, at *3-5 (Tenn. Ct. App. Aug. 20, 2021) (theplaintiff died after the motion for a new trial was filed butbefore it was adjudicated, but the substitution was permitted
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.6on appeal under Rule 19 because the opposing party didnot challenge the failure to substitute within 90 days of thesuggestion of death and the trial court did not rule on theissue). Furthermore, the Rules of Civil Procedure generallyonly “govern procedure in the circuit or chancery courts inall civil actions, whether at law or in equity, and in all othercourts while exercising the civil jurisdiction of the circuitor chancery courts.” Tenn. R. Civ. P. 1; see Irvin v. City ofClarksville, 767 S.W.2d 649, 654 (Tenn. Ct. App. 1988) (“TheTennessee Rules of Civil Procedure do not apply to the Courtof Appeals ....”).*7 Dr. Islam died while the appeal was pending. Mr.Simmons seeks to declare void this court's prior appellatedecision, as well as the grant of summary judgment whichwas made by the trial court while Dr. Islam was still alive. Wenote initially that Dr. Islam did not die while the proceedingwas before the trial court, and accordingly there is no basisto challenge the trial court's jurisdiction grant of summaryjudgment. In other words, there was no failure to substitute theproper party in the trial court during the summary judgmentproceedings because Dr. Islam was alive at the time.Mr. Simmons's argument hinges in large part on hiscontention that a court loses jurisdiction when a party diesand no substitution has been made. The problem with thisargument is twofold. One, his case citations appear to befrom an artificial intelligence hallucination.3 The cases citedin the brief, insofar as they exist, do not stand for the statedpropositions for which Mr. Simmons offers them.4Two, Rule 19 itself and prior caselaw support the oppositeconclusion. The Rule itself states that, when a party dieswhile the appeal is pending, “the appellate court may ordersubstitution of the proper parties” and that the motion“may be made by any party or by the successor orrepresentative of the deceased party.” Tenn. R. App. P.19(a) (emphasis added). When interpreting statutes, “[t]hetraditional, commonly repeated rule is that shall is mandatoryand may is permissive.” Antonin Scalia and Bryan A. Garner,Reading Law: The Interpretation of Legal Texts 112 (2012).5“Tennessee courts have embraced this traditional rule.”Armitage v. Hale, No. E2024-01905-COA-R3-CV, 2025 WL3765874, at *7 (Tenn. Ct. App. Dec. 29, 2025) (citing cases).Furthermore, Rule 19 goes on to state that “[a]n order ofsubstitution may be entered at any time, but the omission toenter such order shall not affect the substitution.” Tenn. R.App. P. 19(d). The Comment to the Rule confirms that “theomission of an order of substitution is not fatal to an appeal,but may be entered at any time under subdivision (d).” Tenn.R. App. P. 19, Advisory Comm'n Cmt. Accordingly, whileMr. Simmons is correct that a motion for substitution couldhave been made upon Dr. Islam's death, the failure to effect asubstitution was not fatal to the appeal.This court has previously issued judgments where a partydied pending appeal and no substitution was made. In Sipesv. Sipes, a father disputed with his son and the son's loanservicer the boundaries and use of certain real property.No. W2015-01329-COA-R3-CV, 2017 WL 417222, at *1(Tenn. Ct. App. Jan. 31, 2017). This court noted that thefather had died during the pendency of the appeal andthat, while the court had initially permitted substitution, theattempted substitution was the improper party. Id. at *1, n.1.Accordingly, the court vacated the order of substitution. Id.The court nevertheless issued an opinion, affirming the court'sjudgment in favor of son and the loan servicer. Id. at *5.The Tennessee Supreme Court has issued an order denyingsubstitution as moot at the same time that a Rule 11 petitionfor appeal was denied. Shelton v. Shelton, No. E2015-00962-SC-R11-CV (Tenn. Feb. 18, 2016) (Order); see also Chase,2021 WL 3702081, at *4 (“[N]oncompliance with Rule 25.01places an action at considerable peril at the trial court level.However, the present action is different ... in one importantregard: here, Defendant never moved the trial court to dismissPlaintiff's action for failure to comply with Rule 25.01’s 90-day deadline.”). Accordingly, a failure of substitution does notautomatically defeat this court's jurisdiction.*8 The jurisdiction of this court continues because “[a]ctionsdo not abate by the death or other disability of eitherparty, or by the transfer of any interest in the action, if thecause of action survives or continues.”6 Tenn. Code Ann. §20-5-101; see Tenn. Code Ann. § 20-5-102 (“No civil actioncommenced, whether founded on wrongs or contracts, exceptactions for wrongs affecting the character of the plaintiff, shallabate by the death of either party, but may be revived; nor shallany right of action arising hereafter based on the wrongful actor omission of another, except actions for wrongs affectingthe character, be abated by the death of the party wronged;but the right of action shall pass in like manner as the right ofaction described in § 20-5-106.”).Insofar as Mr. Simmons argues7 that the Rule 60 proceedingswere void for failure to substitute, Rule 25.01 is permissive,providing that the court “may” order substitution. SeeDouglas v. Est. of Robertson, 876 S.W.2d 95, 98 (Tenn. 1994);Dry v. Steele, No. E2013-00291-COA-R3-CV, 2014 WL
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.7295777, at *4 (Tenn. Ct. App. Jan. 28, 2014); see also Adamsv. Adient US LLC, 750 F. Supp. 3d 855, 857 (W.D. Tenn.2024) (“The language of [Federal] Rule 25 is permissiveand the decision to substitute a party lies within the sounddiscretion of the Court.” (quoting Turnage v. Oldham, No.2:16-CV-2907-SHMTMP, 2019 WL 5424425, at *1 (W.D.Tenn. Oct. 22, 2019))). The decision to substitute is, underthe language of the statute, discretionary. See Douglas, 876S.W.2d at 98; Adams, 750 F. Supp. 3d at 857. In any event,any error in failure to substitute under Rule 25.01 duringthe Rule 60 proceedings below would be harmless because,as the trial court found, the case was essentially at an end,there was no basis to revisit the final judgment under Rule60, Mr. Simmons had no entitlement to the property of theestate, and he accordingly suffered no prejudice. See Pippinv. Pippin, 277 S.W.3d 398, 404 (Tenn. Ct. App. 2008) (errorin evidentiary ruling was harmless when the opposing partysuffered no prejudice); Douglas, 876 S.W.2d at 97 (evaluatingprejudice when analyzing assertion of error in the trial court'sextension of time to file for substitution).*9 Here, Dr. Islam was a defendant who had obtainedsummary judgment dismissing all claims against him, andhe died after this case had been submitted on oral argumenton appeal. No motion for substitution was made prior tothis court's opinion being filed, but Rule 19 provides thatsuch failure is “not fatal.” Accordingly, Mr. Simmons isincorrect that Dr. Islam's death voided either the trial court'sgrant of summary judgment or this court's opinion affirmingthe summary judgment dismissing Mr. Simmons's claims. Inshort, the summary judgment and appellate opinion are notvoid, and the court did not err in denying Rule 60 relief fora void judgment.B.Mr. Simmons next argues he was entitled to relief basedon Dr. Studstill's affidavit, which he describes as “newlydiscovered evidence.” Tennessee courts “have consideredrequests [pursuant to newly discovered evidence] withinthe parameters of Rule 60.02(5).” In re Jacob J., No.M2024-00184-COA-R3-PT, 2025 WL 900601, at *4 (Tenn.Ct. App. Mar. 25, 2025) (citing cases). Rule 60.02(5) is,“as a general rule, applicable to situations that are notcovered by the other clauses in Tenn. R. Civ. P. 60.02or to cases of extreme hardship.” Duncan v. Duncan, 789S.W.2d 557, 564 (Tenn. Ct. App. 1990). The standards ofRule 60.02(5) are even “more demanding” than the standardsmeriting relief under the other subsections of Rule 60.02.Thrailkill, 856 S.W.2d at 154. “Despite its extremely broadlanguage, Tennessee Rule of Civil Procedure 60.02(5) hasbeen construed very narrowly by Tennessee Courts.” Steioffv. Steioff, 833 S.W.2d 94, 97 (Tenn. Ct. App. 1992). When aparty seeks relief based on newly discovered evidence, relief“may only be granted where the evidence could not have beendiscovered through the exercise of reasonable diligence.”Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn. 1994);see In re Jacob J., 2025 WL 900601, at *4.In seeking appellate relief related to Dr. Studstill's newaffidavit, Mr. Simmons argues for the admissibility of theaffidavit, but he does not demonstrate that the affidavitwas newly discovered evidence that “could not have beendiscovered through the exercise of reasonable diligence”prior to trial. Spence, 883 S.W.2d at 596 (relief under Rule60.02(5) was not warranted when the evidence could havebeen discovered through reasonable diligence at trial); seealso In re Jacob J., 2025 WL 900601, at *4. Mr. Simmonscontinues to assert that Dr. Islam's death was concealed fromhim, but he does not explain how Dr. Islam's death affectedhis ability to seek a statement from his own expert regardingdamages he allegedly suffered while Dr. Islam was alive. Thetrial court did not abuse its discretion in denying Rule 60relief for this “newly discovered” evidence, which could havebeen presented by Mr. Simmons from his own expert duringthe initial proceedings. See Welch v. Welch, 195 S.W.3d 72,78 (Tenn. Ct. App. 2005) (a father who legitimated a childand then sought to reverse that decision under Rule 60 wasnot entitled to relief when he knew he was not the biologicalfather at the time of legitimation); In re Jacob J., 2025 WL900601, at *4 (father was not entitled to 60.02(5) relief fornewly discovered evidence when he “did not demonstratethat he was unable to obtain” evidence such as text messagesand emails “before trial through the exercise of reasonablediligence”).C.Mr. Simmons also contends that defense counsel committedfraud on the court by not immediately revealing Dr. Islam'sdeath.8 He concludes that the judgment must be void.However, even accepting Mr. Simmons's allegations that Dr.Islam's attorneys were aware of the death9 and failed to filea suggestion of death or move for substitution, Mr. Simmonsdoes not explain why the failure to file a suggestion of death
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.8or move for substitution, even if error,10 would automaticallyresult in a void judgment or how he was prejudiced by afailure to substitute after Dr. Islam and the Clinic had obtainedsummary judgment dismissing Mr. Simmons's case and thecase had been submitted on arguments on appeal.*10 This section of Mr. Simmons's brief is again plaguedwith what appear to be artificial intelligence hallucinations. Inany event, contrary to Mr. Simmons's contention, the failureto move for substitution after the case had been submitted onbriefs and oral argument in the appellate court did not havean effect on this court's jurisdiction, as noted above. When aparty seeks Rule 60 relief based on fraud, the party must show“with clear and convincing evidence the existence of conductby the non-moving party which amounts to: ‘an intentionalcontrivance by a party to keep complainant and the Court inignorance of the real facts touching the matter in litigation,whereby a wrong conclusion was reached, and positive wrongdone to the complainant's rights.’ ” In re Est. of Williams,No. M2000-02434-COA-R3-CV, 2003 WL 1961805, at *14(Tenn. Ct. App. Apr. 28, 2003) (quoting Duncan, 789 S.W.2dat 563). Accordingly, the party must show that the allegedmisconduct resulted in harm. Parimore v. Parimore, No.W2016-01188-COA-R3-CV, 2017 WL 657771, at *4 (Tenn.Ct. App. Feb. 17, 2017).Mr. Simmons argues that the court erred in determiningthat any error in failing to substitute a party on appeal washarmless. He avers that, to the contrary, he has lost theopportunity to file a claim against the estate, to file a claimagainst the now-defunct Clinic's real property, or to conductdiscovery. The trial court concluded that, while substitutionmay have been necessary had summary judgment beenreversed on appeal, once the appellate court affirmed the grantof summary judgment in favor of Dr. Islam, any substitutionbecame unnecessary because the case had concluded. Thecourt found Mr. Simmons had no legitimate claim againstthe estate or real property or any right to conduct discovery,since the case had already been disposed of through summaryjudgment granted to the opposing party. Contrary to Mr.Simmons's contention, he would not have been entitled toseek discovery on appeal had a suggestion of death been filed.See Peck v. Tanner, 181 S.W.3d 262, 266 (Tenn. 2005) (theappellate court was without power to order a trial court tosupervise the taking of discovery so that the appellate courtcould determine misconduct, since such procedure wouldexceed the limits of appellate jurisdiction and make the courtthe trier of fact). The court did not err in determining that Mr.Simmons suffered no prejudice because he had no right toseek discovery or to file any claim against Dr. Islam's propertyor that of the Clinic after Dr. Islam successfully obtainedsummary judgment dismissing Mr. Simmons's claims. SeeDouglas, 876 S.W.2d at 97 (evaluating prejudice in trialcourt's extension of time to file for substitution).In attacking the court's finding that there was no prejudice,Mr. Simmons also faults the trial court for failing to applyTennessee Rule of Appellate Procedure 36(b). Rule 36 isemployed by appellate courts to determine the effect of alower court's error; it is by its own terms not applicable to thetrial court. See Tenn. R. App. P. 36(b) (“When necessary to dosubstantial justice, an appellate court may consider an errorthat has affected the substantial rights of a party at any time,even though the error was not raised in the motion for a newtrial or assigned as error on appeal.” (Emphasis added)). Thetrial court did not err by failing to apply Rule 36.IV.Mr. Simmons also objects to the trial court's refusal to lift theprotective order shielding Dr. Islam's widow from depositionsand discovery. The information he hopes to gain from herrelates to the timing of Dr. Islam's death, the administration ofthe estate, and the transfer of the business's assets. He allegesthe court made no finding of good cause.When Mr. Simmons filed this motion, his claims againstDr. Islam and the Clinic had been dismissed on summaryjudgment, and this dismissal had been affirmed on appeal.The judgment determining that Mr. Simmons was notentitled to any of Dr. Islam's assets was final. As notedabove, Mr. Simmons is mistaken that the previous trialor appellate proceedings were void. Accordingly, the onlymotion properly before the trial court was his motion forRule 60 relief. Mr. Simmons sought to lift the protectiveorder, which had been in place since before Dr. Islam's death.However, none of the evidence he sought was relevant to hisRule 60 motions, which challenged the prior judgments byasserting the courts lacked jurisdiction due to Dr. Islam's deathand which sought to introduce a new affidavit regarding thehealth care liability case.*11 As noted above, the death did not deprive the court ofjurisdiction. Mr. Simmons was not entitled to seek discoveryregarding Dr. Islam's assets after the judgment denying hisclaims and awarding summary judgment to Dr. Islam becamefinal, because Mr. Simmons had no right to those assets. See
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.9Cheetah Lounge, Inc. v. Sarasota Cnty., 387 S.W.3d 10, 14-15(Tenn. Ct. App. 2012) (concluding that a discovery disputeover a subpoena issued in Tennessee in relation to litigationin Florida was rendered moot when summary judgment wasgranted against the party seeking the discovery in Florida,since the party no longer had a right to discovery after theadverse summary judgment ruling). In short, Mr. Simmonshad already lost the case and could not seek discovery relatedto Dr. Islam's assets. Accordingly, it was not an abuse ofdiscretion to refuse to lift the order shielding Dr. Islam'swidow, who had no information relevant to the Rule 60motions pending before the court.V.Mr. Simmons argues that the trial court erred in denyinghis numerous filings in one order and made inadequatefindings, alleging that the order violated the mandate forfactual findings in Tennessee Rule of Civil Procedure 52.01.The court found that, by the terms of Rule 52.01, “[f]indingsof fact and conclusions of law are unnecessary on decisionsof motions under Rules 12 or 56 or any other motion exceptas provided in Rules 41.02 and 65.04(6).” The court was notproceeding under either of the excepted Rules. We perceiveno error.Mr. Simmons argues that the trial court erred in issuingonly one order to dispose of his myriad filings. The trialcourt in this case made the finding that the judgment hadbeen affirmed on appeal, that it had become final, and thateach motion filed by Mr. Simmons constituted an attempt atan improper collateral attack. “If a timely notice of appealis filed in a civil case, and the judgment is affirmed onappeal, the judgment becomes final upon the issuance of theappellate court's mandate.” Swift v. Campbell, 159 S.W.3d565, 573 (Tenn. Ct. App. 2004); see In re Rainee M., No.E2015-00491-COA-R3-PT, 2015 WL 9584865, at *4 n.2(Tenn. Ct. App. Dec. 30, 2015). The issuance of the mandateis a “ministerial act,” State v. Cawood, 134 S.W.3d 159, 163n.6 (Tenn. 2004), and it serves to transfer jurisdiction “fromthe appellate court back to the trial court for the executionof judgment, the collection of costs, and any other actiondirected in the appellate court opinion,” Barnett v. State,No. M2021-00554-CCA-R3-PC, 2022 WL 2277146, at *3(Tenn. Crim. App. June 23, 2022) (citing Sanders v. Loyd,364 S.W.2d 369, 371 (Tenn. 1960)). Accordingly, “[w]ith theissuance of the mandate, the parties and the trial court becamebound by the ‘law of the case’ doctrine....” Tindell v. West, No.E2012-01988-COA-R3-CV, 2013 WL 6181997, at *4 (Tenn.Ct. App. Nov. 25, 2013).The trial court found that the order of summary judgmenthad become final. Rule 60 functions to give relief from finaljudgments. Discover Bank v. Morgan, 363 S.W.3d 479, 489(Tenn. 2012) (citing Campbell v. Archer, 555 S.W.2d 110, 112(Tenn. 1977)). Indeed, “[o]nce a judgment becomes final, theonly relief available to a party is a motion filed pursuant toRule 60 of the Tennessee Rules of Civil Procedure.” Harrisv. Hall, No. M2011-01983-COA-R3-CV, 2012 WL 2393969,at *3 n.3 (Tenn. Ct. App. June 25, 2012); Algee v. StateFarm Gen. Ins. Co., 890 S.W.2d 445, 447 (Tenn. Ct. App.1994) (“After thirty days [from entry of a nonsuit], however,Tenn. R. Civ. P. 60 governs the trial court's jurisdiction overthe case. As a result, plaintiffs’ only relief in this case ispursuant to a Rule 60.02 motion for relief from judgment.”);Fernandez v. Tennessee Dep't of Revenue, No. M2021-01417-COA-R3-CV, 2022 WL 16961294, at *4 n.3 (Tenn. Ct. App.Nov. 16, 2022) (“[O]nce the court entered final judgment, theparty seeking to amend [under Rule 15] needed to seek post-judgment relief under Rule 59 or Rule 60.”).*12 We conclude that the trial court did not err in denying thepost-judgment motions in one order. The trial court found thatany challenge to the grant of summary judgment, which hadbeen affirmed on appeal and had become a final judgment,had to be taken through Rule 60 and that the other motionswere improper. Furthermore, the trial court specified in itsorder that it believed that Mr. Simmons must proceed underRule 60, and the order is accordingly adequate to allow us toreview the court's determination as to the other motions.VI.Mr. Simmons argues separately that the court erred indenying sanctions under Tennessee Rule of Civil Procedure11.03. Below, the attorneys for Dr. Islam argued that theyhad committed no sanctionable conduct and also that Mr.Simmons had failed to comply with Rule 11.03’s safe harborprocedure. A decision on sanctions is reviewed for abuse ofdiscretion. Ewan v. Hardison Law Firm, 465 S.W.3d 124,139 (Tenn. Ct. App. 2014). A trial court in general abusesits discretion when it applies “incorrect legal standards,reaches an illogical conclusion, bases its decision on a clearlyerroneous assessment of the evidence, or employs reasoningthat causes an injustice to the complaining party.” West v.
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.10Schofield, 460 S.W.3d 113, 120 (Tenn. 2015) (citing State v.Banks, 271 S.W.3d 90, 116 (Tenn. 2008)).Tennessee Rule of Civil Procedure 11.03 concerns sanctionsrelated to violations of Tennessee Rule of Civil Procedure11.02. While a court may on its own initiative enter sanctionsunder 11.03(b), when sanctions are initiated by motion, theRule prescribes the following:(1) How Initiated.(a) By Motion. A motion for sanctions under this ruleshall be made separately from other motions or requestsand shall describe the specific conduct alleged to violatesubdivision 11.02. It shall be served as provided in Rule5, but shall not be filed with or presented to the courtunless, within 21 days after service of the motion (or suchother period as the court may prescribe), the challengedpaper, claim, defense, contention, allegation, or denial isnot withdrawn or appropriately corrected. If warranted, thecourt may award to the party prevailing on the motionthe reasonable expenses and attorney's fees incurred inpresenting or opposing the motion. Absent exceptionalcircumstances, a law firm shall be held jointly responsiblefor violations committed by its partners, associates, andemployees.Tenn. R. Civ. P. 11.03(1)(a).The safe harbor provision requiring a 21-day wait afterservice of the motion on the other party “serves the importantdual role of providing attorneys notice and fair warning thatan adversary is proposing seeking sanctions, and acting asa deterrent to frivolous, unsupported, or otherwise improperpleadings being filed with the court in the first place.” Mitranov. Houser, 240 S.W.3d 854, 862 (Tenn. Ct. App. 2007).The procedural requirements are “clear, unambiguous andmandatory.” Brown v. Shappley, 290 S.W.3d 197, 202 (Tenn.Ct. App. 2008). Accordingly, this court “will reverse an orderof sanctions where the moving party has not complied withthe Rule's safe harbor provisions.” Id.Below, the attorneys against whom sanctions were soughtargued that Mr. Simmons had failed to comply with thesafe harbor provisions. Mr. Simmons did not contend thathe complied but instead posited that such a provision isonly found in the Federal Rules of Civil Procedure. Asnoted above, however, “Tennessee's version of Rule 11 alsocontains a safe harbor requirement.” Ewan, 465 S.W.3dat 139. We conclude that the trial court did not abuseits discretion in denying the motion, given Mr. Simmons'sfailure to assert, much less show, that he complied with themandatory procedural requirements. Indeed, this court wouldhave been constrained to reverse an award of sanctions absentcompliance with the safe harbor provision. Shappley, 290S.W.3d at 202.VII.*13 Mr. Simmons also argues that the court “erred in failingto address the intertwined nature of the claims against Dr.Islam and the clinic, which made the substitution failureprejudicial to both defendants.” The only authority cited inthis section of his brief is to the hallucinated, nonexistent caseand to a case which does not stand for the claimed proposition.This argument is waived for failure to cite to authority todevelop his argument. Tenn. R. App. P. 27(7)(A); Sneed, 301S.W.3d at 615.VIII.For the foregoing reasons, we affirm the trial court'sjudgment. Mr. Simmons's remaining outstanding motionsbefore this court are respectfully denied. Costs of this appealare taxed to the appellant, Tray Simmons, for which executionmay issue if necessary.All CitationsSlip Copy, 2026 WL 1431143Footnotes1The affidavit shows on its face that it was executed in August 2025.2Tennessee Rule of Civil Procedure 25.01 states:(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. Themotion 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
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.11in the manner provided in Rule 4 for the service of process. Unless the motion for substitution is made not later than90 days after the death is suggested upon the record by service of a statement of the fact of the death as providedherein 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 whichthe right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, theaction does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or againstthe surviving parties.The Rule references a suggestion of death; “[t]he purpose of the filing of a suggestion of death is to trigger the runningof the 90 day period within which a motion for substitution of proper party may be filed.” Williams v. Williams, No.E2012-00162-COA-R3-CV, 2012 WL 3986328, at *2 (Tenn. Ct. App. Sept. 12, 2012).3Artificial intelligence hallucinations are “a widely reported phenomenon in which artificial intelligence programs createnew information that has no basis in fact.” Margie Alsbrook, Untangling Unreliable Citations, 37 Geo. J. Legal Ethics415, 446 (2024).4In addition to citing cases that do not exist or do not address the cited propositions, the brief contains statements suchas, “Based on Tennessee law, your brief thoroughly addresses and supports every legal requirement for fraud on thecourt and fraudulent concealment especially regarding the element of harm and the statutory/ethical duty to disclose aparty's death.”5The Rule does contain a “shall,” but this provision comes into play “[i]f a party against whom an appeal may be takendies after entry of a judgment or order in the trial court but before notice of appeal is filed” or “[i]f a party entitled to appealshall die before filing notice of appeal.” Tenn. R. App. P. 19(a).6A cause of action which is purely personal, such a divorce, on the other hand does abate. In such a case, “when the suitabates upon the death of the party, ‘the jurisdiction of the court to proceed with the suit is terminated.’ ” Harris for Richeyv. Richey, No. M2021-00331-COA-R3-CV, 2021 WL 6054819, at *5 (Tenn. Ct. App. Dec. 21, 2021) (quoting Steele v.Steele, 757 S.W.2d 340, 342 (Tenn. Ct. App. 1988)) (noting that a pending divorce, which is purely personal, abatesupon death of a party). A health care liability claim does not fall into this category. See, e.g., Joshlin v. Halford, No.W2018-02290-COA-R9-CV, 2019 WL 5783482, at *5 (Tenn. Ct. App. Nov. 6, 2019).7Mr. Simmons's argument section describes his first issue in its heading as: “Orders Entered After Dr. Islam's DeathWithout Substitution Are Void for Lack of Jurisdiction, Requiring Remand and Reopening.” As noted above, his statementof the issues frames the issue as:1. Failure to Substitute:Standard of Review: Whether a trial court retains jurisdiction in the absence of proper substitution under Tenn. R.Civ. P. 25.01 and Tenn. R. App. P. 19 is a question of law, reviewed de novo with no presumption of correctness. SeeLacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004) (jurisdictional questions reviewed de novo); In re Estate of Davis, 308S.W.3d 832, 837 (Tenn. Ct. App. 2009) (failure to substitute is a procedural defect with jurisdictional implications).1.Whether the trial court erred by proceeding without substitution of Appellee's estate after his death during the priorappeal, in violation of Tenn. R. App. P. 19 and Tenn. R. Civ. P. 25.01, despite Appellant's timely motions underboth rules.8Insofar as Mr. Simmons makes claims of fraudulent concealment, this doctrine is focused on tolling a limitations periodand is aligned with the discovery rule. Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 462 (Tenn.2012).9Mr. Simmons asks this Court to consider Exhibit E, which was stricken by the trial court. The trial court struck the exhibitafter concluding the exhibit was confidential under Doe v. Board of Professional Responsibility of Supreme Court ofTennessee, 104 S.W.3d 465, 472 (Tenn. 2003). Mr. Simmons presents an argument that Exhibit E is relevant underTennessee Rule of Evidence 401, that evidence can be admissible for one purpose but inadmissible for another under
TRAY SIMMONS v. DR. SHAHIDUL ISLAM ET AL., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12Tennessee Rule of Evidence 105, and that it falls within a hearsay exception under Tennessee Rule of Evidence 803(1.2).He further argues that Exhibit E demonstrates counsel's knowledge of the death, which he equates with fraud. Mr.Simmons never addresses Doe or otherwise challenges the trial court's reason for excluding the evidence. While Rule9 has been revised since the decision in Doe, Mr. Simmons has not challenged the trial court's basis for excluding theevidence, and the argument that the trial court erred is waived. See Sneed, 301 S.W.3d at 615; compare Tenn. Sup. Ct.R. 9, § 25.1 (2003) with Tenn. Sup. Ct. R. 9, § 32.1, 32.7 (2025). In any event, we have concluded that Mr. Simmonswould not be entitled to relief even if we assume that Dr. Islam's attorneys were aware of the death in August 2024.10See Scott v. Roberson, No. M2011-00016-COA-R3-CV, 2011 WL 3760940, at *4 (Tenn. Ct. App. Aug. 24, 2011) (notingthat in Douglas, 876 S.W.2d 95, “[t]he defendant's estate had no motivation to substitute a party for the deceaseddefendant, making it incumbent on the plaintiffs to file the motion and ask the court to substitute the defendant's estatefor the deceased defendant.”).End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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