Nix v. McElrath

• Decision Date: 18 August 2006
• Docket Number: 1040259.
• Parties: Jack D. NIX, Jr. v. Robin McELRATH, as mother and next friend of Magen K. Nix, deceased.
• Court: Alabama Supreme Court

952 So.2d 1107

Jack D. NIX, Jr. v. Robin McELRATH, as mother and next friend of Magen K. Nix, deceased.

1040259.

Supreme Court of Alabama.

August 18, 2006.

James B. Pittman, Jr., Daphne, for appellant.

Bryan N. Cigelski of Taylor Martino, P.C., Mobile, for appellee.

BOLIN, Justice.

This case concerns a wrongful-death action brought in the Baldwin Circuit Court by Robin McElrath ("the mother"), as mother and next friend of her deceased minor daughter, Magen K. Nix. The two issues presented for review are whether the mother, a divorced parent, had the exclusive right to commence the wrongful-death action, and whether she had the exclusive right to the proceeds from this action.

Facts and Procedural History

Magen was born on December 15, 1984, during the marriage of the mother and Thomas Wayne Dixon. The mother and Dixon subsequently divorced, and the mother later married Jack D. Nix, Jr. After the marriage, Nix petitioned the Probate Court of Mobile County to adopt his stepchild, Magen. That petition was granted on December 17, 1992, and a final judgment of adoption was rendered creating a parent-child relationship between Nix ("the father") and Magen and legally changing Magen's name to Magen Kristen Nix.¹ Approximately eight years later, the mother and the father divorced. The terms of the divorce judgment relevant to this action are set out and discussed below.

On September 4, 2003, shortly after enrolling as a freshman at Auburn University, Magen and her friend Robyn Kendall visited Fat Daddy's Fine Foods, a bar in Auburn. They were allegedly served alcoholic beverages even though both were minors. Magen and Robyn subsequently left Fat Daddy's in Robyn's car, which Robyn was driving, and were involved in an automobile accident in which both girls were killed.

On December 8, 2003, the mother filed the underlying action against Robyn Kendall, by and through her mother, Donna Kendall, and against AIU Insurance Company, the mother's uninsured/underinsured-motorist ("UM/UIM") insurance carrier. Later, the mother amended her complaint to add as defendants AL-LU Enterprises, Inc., d/b/a Fat Daddy's Fine Foods, under a dram-shop theory of liability.

On June 4, 2004, the defendant Donna Kendall, as mother of Robyn Kendall, deceased, by and through her automobile insurance carrier State Farm Insurance, filed a motion to interplead the available proceeds of her automobile liability insurance policy. The trial court granted Kendall and State Farm's motion to allow interpleader of the funds on June 9, 2004. On July 12, 2004, the mother filed a motion for disbursement of the interpleaded funds, requesting that attorney fees be paid to her counsel and that she receive the balance of the interpleaded funds.

Although the record is silent as to the particulars, at some point the father was appointed the administrator of Magen's estate, and he then entered an appearance in the Baldwin Circuit Court wrongful-death action, moving to intervene as an indispensable party pursuant to Rule 19, Ala. R. Civ. P. He also objected to the disbursement of interpleaded funds, and he filed a cross-motion for one-half of those funds. The mother objected to the father's intervention and to his cross-motion to divide the interpleaded funds.

The trial court set all pending motions for hearing on August 31, 2004, and after the hearing took all matters under submission. The mother and the father filed a joint stipulation of undisputed facts on October 6, 2004, and the trial court entered the following order on October 12, 2004:

"This matter came on for argument on the motion for disbursement of interpled funds and was taken under submission by the court on August 31, 2004. On October 6, 2004, the [mother] and the [father] filed a joint stipulation of undisputed facts. Upon consideration of the foregoing, the court is of the opinion that the following order is due to be entered. It is therefore ORDERED, ADJUDGED and DECREED by the Circuit Court of Baldwin County, Alabama, as follows:

"1. It is well established under the Alabama law that the custodial parent of a minor is entitled to maintain a wrongful death action after the minor's death is caused by the unlawful conduct of another. There does not appear to be any Alabama case declaring the rights of the parents to maintain a wrongful death action when the parents were vested with the joint legal custody of the minor.

"2. In view of the apparent lack of Alabama authority, the court is of the opinion that the better policy is to allow the action to be maintained by the parent who first files the action. Moreover, in this particular case, the parent who first filed the action was the parent with whom the minor actually resided prior to entering college. Therefore, under either the race to the courthouse rule or the parent exercising the physical custody of the minor rule, the [mother] would be entitled to maintain the action in this case and to receive the settlement proceeds.

"3. Therefore, the [father's] claim to a share of the settlement proceeds be, and the same is hereby denied. The court directs the Clerk to pay all of the interpled funds to the plaintiff, Robin McElrath, as mother and next friend of [Magen] K. Nix, within ten days after this order becomes final. Should any appeal be taken from this order, the Clerk is directed to maintain the interpled funds in the interest bearing account until a Certificate of Judgment is issued by the appellate court having jurisdiction over the matter."

The father filed a Rule 59(e), Ala. R. Civ. 0P., postjudgment motion to alter or amend its judgment, which the trial court denied. The UM/UIM claim and the claim based on dram-shop liability remain pending.² The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. The father appealed.

Standard of Review

"The trial court in this case applied the law to undisputed, stipulated facts. Our review therefore is de novo.

"`When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness. Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989); Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala. 1990). When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep't of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001); see also Ex parte Graham, 702 So.2d 1215 (Ala.1997). In this case the trial court based its decision upon the stipulations, briefs, writings, and arguments of the parties' attorneys. No testimony was presented. Therefore, we must sit in judgment of the evidence, and the trial court ruling carries no presumption of correctness.'"

American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 872-73 (Ala.2006)(quoting Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 516-17 (Ala.2003)).

Analysis

A. Who has the right to commence a civil action based on the minor's death?

Both the father and the mother persuasively argued at the trial level as to which of them, as divorced parents given "joint custody," have the right to maintain a wrongful-death action, an action for UM/ UIM benefits, and a dram-shop claim on behalf of their deceased daughter, and, secondarily, whether that right is exclusive. However, the father's statement that "because both the [UM/UIM] claim as well as the dram shop claim have since similarly been settled [referring to the already settled claim against Robyn Kendall's insurance carrier], the issue of whether [the father] was entitled to act as a co-plaintiff in prosecuting those claims based on his joint legal custodial status as set forth in the first and second paragraph of the Trial Court's Order is now moot." (The father's brief, p. 16.) The father, therefore, although devoting a substantial portion of his brief to addressing this issue, has conceded that the issue is now moot.

Notwithstanding the father's concession of the mootness of the issue of who had the exclusive right to bring the action, the mother, who initiated the action, must have standing to prosecute this action. "Standing, like jurisdiction, is necessary for any valid legal action. To say that a person has standing is to say that that person is a proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit." Doremus v. Business Council of Alabama Workers' Compensation Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996). The judgment divorcing the parties provides the following regarding custody:

"1. The parties agree that [the mother] and [the father] shall be awarded joint custody of the two minor children, namely Magen Kristen Nix, born on December 15, 1984, and [B.M.N.], born on December 1, 1992. [The mother] shall be awarded primary custody of the minor children, and [the father] shall be awarded secondary custody of the minor children. The parties shall cooperate regarding any major decisions to be handled regarding the children's education, health, welfare, or religion. Additionally, [the father] is allowed access to the medical, dental, and academic records of the minor children."

(Emphasis added.)

Alabama's statute pertaining to the wrongful death of a minor child, Ala.Code 1975, § 6-5-391, provides, in part:

"(a) When the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either, the father, or the mother as specified in Section 6-5-390, or, if the father and mother are both dead or if they decline to commence the action, or fail to do so, within six months from the death of the minor, the personal...