DERRICK HUSSEY ET AL.
MICHAEL WOODS ET AL.
February 8, 2017 Session Heard at Nashville
by Permission from the Court of Appeals Circuit Court for
Shelby County No. CT-00564209 Donna M. Fields, Judge
Rule of Civil Procedure 60.02 allows a trial court to set
aside a final judgment under certain circumstances, including
when the judgment is void or "for any other reason
justifying relief." Here, a decedent's mother, in
her capacity as her unmarried son's next of kin, filed a
lawsuit seeking damages for his wrongful death. The case was
settled and dismissed. Nearly twenty months later, the
decedent's alleged minor child filed a Rule 60.02 motion
to set aside the order of dismissal and to be substituted as
the plaintiff. The motion asserted that the child was the
decedent's next of kin and the proper party to pursue the
wrongful death claim, based on the decedent's execution
of an acknowledgment of paternity and a Mississippi trial
court order for support. The trial court denied the motion,
finding it was not timely filed. The Court of Appeals vacated
the trial court's ruling, holding that the Rule 60.02
motion was not ripe for adjudication until the trial court
conclusively established the child's paternity. We find
the Court of Appeals erred by focusing on issues surrounding
the child's paternity rather than reviewing the
correctness of the trial court's ruling on the Rule 60.02
motion. We hold that the trial court properly denied relief
under Rule 60.02. The judgment of the Court of Appeals is
reversed, and the judgment of the trial court is reinstated.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee,
for the appellant, Sharondra E. Harris.
Turner, Jr., Memphis, Tennessee, for the appellee, Estate of
Mae L. Chearis.
M. McNabb and Pamela Warnock Blair, Memphis, Tennessee, for
the appellee, Family Dollar Stores of Tennessee, Inc.
Darrell J. O'Neal, Memphis, Tennessee, Pro Se,
Administrator of the Estate of Mae L. Chearis, Deceased.
G. Lee, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Holly Kirby,
and Roger A. Page, JJ., joined.
G. LEE, JUSTICE
December 2003, Sharondra Harris and Derrick Hussey began
dating. On April 28, 2005, Ms. Harris gave birth to a child.
Subsequently, the Mississippi Department of Human Services
sued Mr. Hussey in the Chancery Court of DeSoto County,
Mississippi, to establish paternity and support for the
child. On March 7, 2008, Mr. Hussey signed an agreement
admitting that he was the natural father of the child,
waiving his rights to genetic testing, and agreeing to pay
support. By order dated March 20, 2008, the chancery court
approved the agreement and ordered that Mr. Hussey was the
father of the child. Thereafter, the chancery court entered
an amended judgment for support and an amended order of
December 4, 2008, Mr. Hussey died after being detained and
handcuffed by the manager of a Family Dollar store in
Memphis. At the time of his death, Mr. Hussey was not married
and was living with his mother, Mae L. Chearis. On December
9, 2008, Ms. Chearis and her sister, Marilyn Ramson, met with
attorney Robert M. Brannon, Jr., to discuss a wrongful death
suit. Ms. Chearis signed an agreement retaining Mr. Brannon
to handle a wrongful death claim against the Family Dollar
store and its manager. On December 10, 2008, at Mr.
Brannon's request, Ms. Chearis and Ms. Harris met with
Mr. Brannon. At that meeting, Ms. Harris signed an agreement
retaining Mr. Brannon to represent Ms. Harris and Mr.
Hussey's minor child in a wrongful death suit against the
Family Dollar store.
Mr. Brannon was hired, some members of Mr. Hussey's
family questioned whether Mr. Hussey was the child's
biological father. On January 2, 2009, Mr. Brannon wrote a
letter to Ms. Ramson who, according to Mr. Brannon and Ms.
Chearis, had been designated as the contact person for Mr.
Hussey's family. In the letter, Mr. Brannon offered to
perform legal services regarding the paternity issue based on
his previous telephone conversation with Ms. Ramson about the
child's paternity. On March 18, 2009, Mr. Brannon sent
Ms. Ramson an update on the case and requested payment of an
investigator's fee. On July 27, 2009, Mr. Brannon
notified Ms. Ramson by letter that he was declining
representation in the wrongful death claim and closing his
November 2009, Ms. Chearis, without the involvement or
knowledge of Ms. Harris, retained lawyers with the Memphis
law firm of Porter & Strange, PLLC, to handle the
wrongful death claim. On December 3, 2009, Ms. Chearis,
through her new lawyers, filed a wrongful death suit, as
mother and next of kin of Mr. Hussey, against Family Dollar
Stores of Tennessee, Inc., and Michael Woods, the manager of
the store where Mr. Hussey died. Several months later, Ms.
Chearis and Family Dollar agreed to a settlement, the terms
of which were confidential, and Family Dollar paid Ms.
Chearis the settlement funds. On March 22, 2010, Ms. Chearis,
as the "sole heir at law of Derrick Hussey, "
signed a release of liability for Family Dollar and the store
manager. On March 31, 2010, the trial court entered a consent
order of dismissal with prejudice.
December 2, 2011-twenty months after entry of the order of
dismissal-the minor child, through his mother, moved to set
aside the order under Tennessee Rule of Civil Procedure
60.02, to be substituted as the real party in interest under
Rule 17.01, and to allow the claim to relate back to
the filing of the original complaint under Rule 15.03. The
child asserted that he was the decedent's next of kin
based on Mr. Hussey's signed admission of paternity filed
in the Chancery Court for DeSoto County, Mississippi. The
child further argued that he was the real party in interest;
the lawful beneficiary with statutory priority over Mr.
Hussey's mother; and the only party with standing to
bring, settle, and/or dismiss the wrongful death lawsuit.
to Ms. Harris's deposition testimony, she and Mr. Hussey
met in November 2003 and began dating each other exclusively.
Ms. Harris became pregnant and, on April 28, 2005, gave birth
in Mississippi. Mr. Hussey was present for the child's
birth. Ms. Harris did not recall the date of the child's
conception but acknowledged that Mr. Hussey was incarcerated
from July to August 2004. Ms. Harris could not recall the
child's due date but remembered that he was born early
and weighed only four pounds. Ms. Harris denied that she
dated any other men during the time when the child was
conceived. The couple separated in 2007 but remained friends,
with Mr. Hussey dividing his time between Ms. Harris's
home and his mother's home. Mr. Hussey was not employed
and did not pay Ms. Harris child support. After Ms. Harris
returned to work, the child attended daycare. Ms. Harris
frequently worked overtime, and the child spent nights at
both Ms. Chearis's home and Ms. Harris's home. Ms.
Chearis assisted with the child's care, and he called her
"Granny." Ms. Harris never heard Ms. Chearis
express any doubts about the child's paternity. Following
Mr. Hussey's death, she and the child visited Ms.
Chearis's home on or the day after Christmas 2008.
Subsequently, Ms. Harris attempted to contact Ms. Chearis,
but her telephone number had been changed.
meeting with Mr. Brannon on December 10, 2008, and signing an
attorney representation agreement, Ms. Harris had no further
contact with Mr. Brannon. Ms. Harris changed her address at
some point after the meeting with Mr. Brannon but had her
mail forwarded to her new address. To her knowledge, she
received all of her mail but received nothing from Mr.
Brannon. She called Mr. Brannon's office twice in 2009
and left a message with her new phone number but received no
response. Ms. Harris did not go to Mr. Brannon's office
to check the status of the case. She denied that Ms. Ramson
was designated as the family contact with Mr. Brannon. From
December 2008 through October 2011, Ms. Harris believed Mr.
Brannon was representing her despite his lack of
communication with her. In November 2011, Ms. Harris
contacted a legal aid office and, after meeting with a
lawyer, learned about Ms. Chearis's lawsuit. On December
2, 2011, Ms. Harris, through counsel and on behalf of her
son, moved to set aside the order of dismissal under Rule
60.02 of the Tennessee Rules of Civil Procedure.
response to the child's motion, Family Dollar and Ms.
Chearis asserted that the motion was not filed within a
reasonable time, and in any event, there was no basis for
relief under Rule 60.02. According to Ms. Chearis, after a
question arose regarding the child's paternity, Ms.
Harris severed her ties with Mr. Hussey's family, and
they could not contact her. Ms. Chearis testified by
deposition that before her son died, she had doubts about the
child's paternity based on her son's statement that
he was "tricked" into signing the paternity
agreement and because he was in jail when the child was
conceived. Ms. Chearis said she loved the child and accepted
him as her grandson. She stated that neither she nor her son
took care of the child, but the child visited in her home
"every now and then, " although not every week. Mr.
Hussey's obituary, prepared by Ms. Chearis's sister,
Linda Jamerson, stated: "Derrick leaves to cherish his
memories a son, . . . a loving mother, Mae Lois Chearis,
" his father, two brothers, a grandmother, nieces and
nephews, "a special friend, [Sharondra] Harris, "
and "a host of uncles, aunts, cousins, and other family
Chearis said that, after learning that Mr. Brannon was no
longer handling the wrongful death case, she attempted
unsuccessfully to notify Ms. Harris of Mr. Brannon's
decision. In November 2009, Ms. Chearis retained lawyers with
Porter & Strange, PLLC to represent her in a wrongful
death case. Ms. Chearis, through her new lawyers, filed suit
as the ...