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Rule 25.04 – Public Officers – Death or Separation from Office

May 14, 2021 | Civil Procedure, Tennessee

(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.

Tenn. R. Civ. P. 25.04

Advisory Commission Comments.

25.01: Prior law, whether common law or statute, (Tenn. Code Ann. ยงยง 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.