Hussey v. Woods

          February 8, 2017 Session Heard at Nashville

          Appeal by Permission from the Court of Appeals Circuit Court for Shelby County No. CT-00564209 Donna M. Fields, Judge

         Tennessee 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.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed

          Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee, for the appellant, Sharondra E. Harris.

          Van D. Turner, Jr., Memphis, Tennessee, for the appellee, Estate of Mae L. Chearis.

          Leland 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.

          Sharon 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.

          OPINION

          SHARON G. LEE, JUSTICE

         I.

         In 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 withholding.

         On 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.

         After 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 file.

         In 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.

         On 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, ^[1]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.

         According 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.^[2] 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.

         After 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.

         In 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, ^[3]. . . 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 and friends."

         Ms. 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 ...