Swanson v. Peterson

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FILED

CAROL D. SWANSON, as heir of ) January 21, 2000

JAMES FRANKLIN HATCHER, ) Cecil Crowson, Jr.

deceased, and for the benefit of ) Appellate Court Clerk

WILLIE MAE HATCHER, widow, )

) Davidson Circuit

Plaintiff/Appellant, ) No. 98C-2464

)

VS. )

) Appeal No.

LARRY C. PETERSON, and ) M1999-00241-COA-R3-CV

ALL AMERICAN BOTTLING CO., INC., )

d/b/a ROYAL CROWN BOTTLING CO., )

a/k/a R.C. CANADA DRY BOTTLING CO., )

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, JUDGE

For Plaintiff/Appellant: For Defendants/Appellees:

Lloyd T. Kelso Wendy Lynne Longmire

Lloyd T. Kelso & Associates Joseph M. Huffaker

Nashville, Tennessee Ortale, Kelley, Herbert & Crawford

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal stems from two wrongful death suits involving the death of the same

person. Both suits were filed in the Circuit Court for Davidson County, the first by the

decedent’s daughte r and the second by the decedent’s widow. The trial court granted the

common defendants’ motion to dismiss the daughter’s suit on the ground that the widow has

a superior righ t to maintain a wrongful death action. On this appeal, the daughter asserts that

she has a statutory right to continue her wrongful death action despite the filing of the

widow ’s suit. We d isagree and , therefore, affirm the trial court.

I.

James Franklin Hatcher, an 84-year-old resident of McEwen, and his wife, Willie Mae

Hatcher, were sev erely injured in a violent collision with a soft drink truck at the Charlotte

Avenue exit of Interstate 40 on Nov ember 2 1, 1997. H e died of the injuries receiv ed in the

collision on D ecemb er 1, 1997. In addition to his widow, Mr. Hatcher was survived by an

adult da ughter by a for mer m arriage , Carol D . Swan son of E upora, M ississipp i.

Mr. Hatcher left a will appointing James Robert Gibbs, a son-in-law, as his executor,

and the Probate Cou rt for Humph reys County du ly appointed M r. Gibbs executor in Jan uary

1998. Ms. Swanson, fearing that she would somehow be prevented from receiving her

rightful share of her father’s estate,1 hired a Te nnessee law yer to repres ent “her interest in

her father’s recent death.” On January 2 1, 1998, the estate’s lawyer info rmed M s. Swanson’s

lawyer that Mr. Gibbs had “contacted the liability carrier for the other driver, but negotiations

are not ong oing at th is time.” Appr oxim ately on e mon th later, M s. Swanson’s lawyer

correspon ded directly with M r. Gibbs insis ting that he “w ould like to know if the estate of

James F. Hatcher will be pursueing [sic] a claim against the driver of the other vehicle.” In

a subsequent telephone conversation, Mr. Gibbs informed Ms. Swanson’s lawyer that “we

do not need a lawyer at this time.”

Approx imately seven months elapsed with no communication between Ms. Swanson

or her lawyer and Mr. Gibbs or Ms. Hatcher. For some reason not apparent in the record,

Ms. Swanson became convinced that neither Mr. Gibbs nor Ms. Hatcher were doing enough

to pursue the wrongful death claim against the driver and the lessee of the truck that collided

with the Hatch ers’ autom obile. Accordingly, on September 4, 1998, Ms. Swanson filed a

wrongful death su it in the Circuit Court for Davidson County against the lessee and driver

of the soft drink truck. Two months later, apparen tly when a satisfactory se ttlement co uld

not be reached, Ms. Ha tcher and M r. Gibbs filed their own suit against the sa me defe ndants

in the Circuit Court for Davidson County, seeking to recover no t only for the death of M r.

Hatcher but also for the injuries a nd other dama ges sustained by M s. Hatcher.

1

The pleadings indicate that Mr. Hatcher and Ms. Swanson may have been estranged.

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None of the parties attempted to consolidate the two suits.2 Rathe r, faced with two

suits seeking recovery for the wrongful death of Mr. Ha tcher, the defe ndants m oved to

dismiss Ms. S wans on’s su it, assertin g that M s. Hatcher’s right to ma intain the w rongful de ath

action was superior to Ms. Swanson’s. Ms. Swanson responded that she had a statutory right

to pursue the wrongful death claim and that Ms. Hatcher and Mr. Gibbs had waived their

right to maintain the wrongful death action because of their delay in filing it. Following a

hearing, the trial court dismissed M s. Swanson’s co mplaint after finding that Ms. Hatcher

had “priority” to pursue the wron gful death c laim and th at she had n ot waived her right to

do so. Ms. Swanson has appealed from that decision.

II.

T HE S URVIVING S POUSE’S P RIORITY IN W RONGFUL D EATH C ASES

Wrongful death actions were unrecognized at common law. See Wha ley v. Catlett,

103 Tenn. 34 7, 352, 53 S .W. 131 , 133 (189 9); Hall v. Nashville & Chattanooga R.R., 1

Tenn. Cas. (S hanno n) 141 , 144 (1 859). Accordingly, they are purely creatures of statute, see

Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 596-97 (Tenn. 1999), and are

intended to preserve the deceased’s own cause of action against the wrongdoer for damages

from injuries s ustaine d in the d eath-ca using a ct. See Memphis St. Ry. Co. v. Cooper, 203

Tenn. 425, 431 -32, 313 S .W.2d 4 44, 447-4 8 (1958); Rogers v . Donelson-Hermitage

Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn. C t. App. 1990). 3 Wrong ful death su its

may only be brought by the statutorily-designated persons: the deceased’s personal

representative, the deceased’s surviving spouse, or, if none, then the deceased’s children or

other n ext of k in. See Tenn. Code Ann. § 20-5-10 7(a) (1994).

Ms. Swans on is correct that the wrongful death statutory scheme allows a child of the

deceased to sue for a parent’s wrongful death.4 As she points out, a suit for a p erson’s

wrongful death does not lie solely with the survivin g spou se. See Brown v. Selby, 206 Tenn.

71, 78, 332 S.W.2d 1 66, 169 (1 960). Tha t, howeve r, does not an swer the q uestion this

appeal presents. W e must decide w hether where two sepa rate suits have bee n instituted to

address a single wrongful death — one by a surviving child and one by the surviving spouse

— the trial court m ay dismiss one of the suits in favor of the other.

2

Ms. Swanson mentioned in her response to the motion to dismiss that the court “should consider

the consolidation of the actions for trial.” However, as far as this record shows, she never made a

written or oral motion to consolidate. Every lawyer knows, or should know, that all applications to

the court for an order must be in the form of a motion. See Tenn. R. Civ. P. 7.02(1). Unless they

are made during a hearing or trial, they must be in writing and must state with particularity the

grounds therefor. We do not consider an off-hand statement such as this one, tucked away in the

body of a memorandum of law, to be a motion.

3

The Tennessee Supreme Court has described the action as a “hybrid” because it also allows the

deceased’s surviving immediate family to recover their own damages, such as loss of consortium,

arising from a wrongful killing. See Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d at 598, 601-

02.

4

“The action may be instituted by . . . the children of the deceased . . ..” Tenn. Code Ann. § 20-5-

107(a).

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No matter how many suits parties may file to address an allegedly wrongful death,

Tenn. Code Ann. §§ 20-5-106, -07 (1994 and Supp. 1999) contemplate only one cause of

action. See Jamison v. Memphis Transit Management Co., 381 F.2d 670, 673 (6th Cir.

1967); Matthew s v. Mitche ll, 705 S.W.2d 657, 660 (Tenn. Ct. App. 1985). Accordingly,

multiple actions for a single wrongful death cannot be mainta ined. See Matthew s v. Mitche ll,

705 S.W.2d at 660; and see g enerally National Cordova Corp. v. City of Mem phis, 214 Tenn.

371, 382, 380 S.W .2d 793, 798 (196 4) (discussing how a single tort can support but one

action for the damage s); Southern Ry. Co. v. Brubeck, 6 Tenn. App. 493, 501-02 (1927)

(discussing the principle of a single ac tion and a single recovery ).

Ms. Swanson, as Mr. H atcher’s child , permissibly filed a wron gful death la wsuit.

Howeve r, two lawsuits ongoing simultaneously to enforce a single cause of action is not

permissible. Where wrongful death actions conflict and overlap, the surviving spouse has

the prior and superior right to bring and maintain the wrongful death litigation. See Baker

v. Maples, 995 S.W.2d 114, 115 (Ten n. Ct. App . 1999); In re Estate of Dobbins, 987 S.W.2d

30, 36 (Tenn . Ct. App. 1 998); Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn . Ct. App. 1991).

In terms of priority, the spouse’s action trumps the others.

A lawsuit may originally pre sent a pursu able cause of action w hen filed, ye t if before

adjudication it loses that character, it is the co urt’s du ty to dism iss it. See Dockery v.

Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977). The decision to dismiss an action,

where the movant demonstrates grounds for dismissal, lies within the trial court’s discretion.

See Roebuck v. City of Aberdeen, 671 So.2d 49, 50 (Miss. 1996); Gold Reserve Corp. v.

McCa rty, 744 P.2d 160 , 162 (Mont. 198 7). Ms. Swan son’s properly filed wrongfu l death

suit became duplicative once Ms. Hatcher filed suit. Given that Ms. Hatcher’s action, by

law, had priority, the trial court did not abuse its discretion in granting the defendants’

motion to dismiss M s. Swans on’s suit. 5

III.

M S. H ATCHER’S W AIVER OF H ER R IGHT TO P URSUE THE

W RONGFUL D EATH C LAIM

Ms. Swanson also argues that she should be entitled to pursue her suit because Ms.

Hatcher waive d her rig ht to sue for her la te husb and’s w rongfu l death. T he trial court

disagreed, and so do we.

5

These two cases could have been consolidated had Ms. Swanson filed an appropriate Tenn. R.

Civ. P. 42.01 motion. See, e.g., Matthews v. Mitchell, 705 S.W.2d at 660. Granting the motion, had

it been filed, would have been in the trial court’s discretion. See Timmons v. Rainey, 55 S.W. 21,

29 (Tenn. Ch. App. 1899). We will, however, not put the trial court in error for not granting a

motion never made. Even if the trial court had consolidated the two cases, it would have still been

required to choose either Ms. Hatcher or Ms. Swanson as the proper party plaintiff to proceed with

the case. See Matthews v. Mitchell, 705 S.W.2d at 660. The dismissal of Ms. Swanson’s complaint

accomplished the same result.

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Waiver is the vo luntary relinqu ishme nt of a k nown right. See Hicks v. Cox, 978

S.W.2d 544, 550 (Tenn. Ct. App. 1998). As Ms. Swanson points out, inaction inconsistent

with asserting a known right can co nstitute w aiver, see Jenkins Subway, Inc. v. Jones, 990

S.W.2d 713, 722 (Tenn. Ct. App. 1998), and a surviving spouse ca n, by inaction , waive his

or her superio r right to prose cute a suit for wrongful death. See Foster v. Jeffers, 813 S.W.2d

at 453; Matthew s v. Mitche ll, 705 S.W .2d at 663. H oweve r, we have expressly o bserved in

another decision that the surviving spouse retains and does not waive a wrongful death action

if the spouse “bring[s] the wrongful dea th action himself [or herself] . . ..” Foster v. Jeffers,

813 S.W.2d at 453.

That happene d in this case. Within the statute of limitations, M r. Hatcher’s surviving

spouse filed suit for his allegedly wrongful death. It makes no difference that she and the

personal representative filed the suit right before the s tatute of limitatio ns wou ld otherwise

have run; the lawsuit was filed timely . Cf. genera lly McKim m v. Bell, 790 S.W.2d 526, 531

(Tenn. 1990) (statin g that plaintiffs c annot be penaliz ed for filing suit on the last day the

claim was viable).

Ms. Swanson bore the burden of proving waiver by a preponderance of the evidence.

See Koontz v. Fleming, 17 Tenn. App. 1, 8, 65 S.W.2d 821, 825 (1933). She may have

proved that Ms. H atcher wa s dilatory, but she did not prove that Ms. Hatcher, in the end,

relinquished her prerogative to pursue the driver and the lessee of the truck involved in the

November 21, 1997 collision.

IV.

As a final matter, Ms. Swanson attempts to use this appeal to ensure that she receives

a distribution from any ultimate wrongful death recovery. She argues that she, as the sole

child of the decedent, is entitled to an intestate share of proceeds from any wrongfu l death

judgme nt. The trial cou rt in merely dismissing her suit without prejudice d id not adjud icate

any issue of whether or how she should share in any wrongful death recovery. At this point

that is purely an abstract question for the future.

Other than interlocutory appeals granted by this court, parties norm ally may o nly

appeal from a final jud gmen t, see Boyce v. Williams, 215 Tenn. 704, 713, 389 S.W.2d 272,

276 (1965), where the trial court has done everything to determine the parties’ contested

rights. See Emplo yers’ Indem . Co. v. Willard, 125 Tenn. 288, 290, 151 S.W. 1029, 1030

(1911). The appellate courts will not pre-emptively decide issues not litigated in the trial

court, see Lawrence v. Stanford, 655 S.W.2d 927, 929-30 (Tenn. 1983), nor issue advisory

opinions, see Super Flea Mkt. v. Olsen, 677 S.W .2d 449, 45 1 (Tenn. 1 984); McIntyre v.

Traughber, 884 S.W.2d 134, 137 (Tenn. C t. App. 199 4), nor rend er decisions on mere ly

abstract legal qu estions. See State ex rel. Lewis v. S tate, 208 Tenn. 534, 538, 347 S.W.2d 47,

49 (1961). Ms. Swanson’s arguments regarding her share in any eventual re covery at th is

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point are based o n nothing more tha n speculatio n. They p resent noth ing more than an

abstrac t legal qu estion. A ccordin g, we p reterm it discus sion of th is issue.

V.

We affirm the dismissal of Ms. Swans on’s wro ngful death action and remand the case

to the trial court for whatever further proceedings may be required. We tax the costs of this

appea l to Caro l D. Sw anson and he r surety f or wh ich exe cution, if necess ary, m ay issue .

______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

BEN H. CANTRELL,

PRE SIDIN G JU DGE , M.S.

________________________________

PATRICIA J. COTTRELL, JUDGE

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