Timmins v. Lindsey

• Decision Date: 15 March 2010
• Docket Number: No. M2009-00500-COA-R3-CV,M2009-00500-COA-R3-CV
• Citation: 310 SW 3d 834
• Parties: James Gregory TIMMINS, Individually, and for the Benefit of all the Surviving Children of Janice Sue Timmins, Deceased v. Jerry LINDSEY, et al.
• Court: Tennessee Court of Appeals

310 SW 3d 834

James Gregory TIMMINS, Individually, and for the Benefit of all the Surviving Children of Janice Sue Timmins, Deceased v. Jerry LINDSEY, et al.

No. M2009-00500-COA-R3-CV

Court of Appeals of Tennessee, Middle Section, at Nashville.

August 7, 2009 Session.

October 28, 2009.

Permission to Appeal Denied by Supreme Court March 15, 2010.

Published Pursuant to Tenn. R. S. Ct. 4(D).

David M. Pollard, Jr., Jacksboro, Tennessee, for the appellant, James Gregory Timmins, Individually, and for the benefit of all surviving children of Janice Sue Timmins, Deceased.

Walter W. Bussart and Lee Bussart Bowles, Lewisburg, Tennessee, for the appellees, Jerry Lindsey, Gary Lindsey, Joseph Lindsey, and Mary Ann Owens.

OPINION

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., and ANDY D. BENNETT, JJ., joined.

Plaintiff appeals the determination of the trial court in a declaratory judgment action that the plaintiff was not entitled to any portion of settlement proceeds derived from the personal injury action of the plaintiff's deceased grandmother by operation of Tenn.Code Ann. § 20-5-111 and because of the existence of a will that excluded the plaintiff's mother from the decedent's estate. Finding error, we vacate the judgment of the trial court and remand for further proceedings.

I. Background

This appeal stems from the filing of a declaratory judgment action on December 15, 2008, by the plaintiff,¹ individually as well as for the benefit of his siblings, seeking a declaration of "the parties' respective rights, obligations and other legal relations as they pertain to settlement proceeds derived from a cause of action seeking damages in tort and as amended for wrongful death" of Lela Lindsey.

Lela Lindsey, the injured party, had five children, one of whom was Janice Sue Timmins, the plaintiff's mother. Janice Sue Timmins died approximately three years before Ms. Lindsey's injury, which resulted from an overdose of medication given to her while she was a nursing home patient. In June 2006, following the injury, Ms. Lindsey's four surviving children, the defendants in the instant suit, brought a personal injury action against Franklin Senior Living Partners, LLC d/b/a Beacon Pointe Assisted Living ("Beacon Pointe") and Reeves-Sain Extended Care, LLC ("Reeves-Sain") as next friends of Ms. Lindsey as well as individually. During the pendency of the personal injury action, Ms. Lindsey died and the defendants amended the complaint to allege her wrongful death. A jury subsequently awarded damages for Ms. Lindsey's personal injuries, but found that those injuries were not the proximate cause of her death. The defendants, Beacon Pointe and Reeves-Sain subsequently mediated a confidential settlement.

Upon the filing of the declaratory judgment action, the trial court entered a temporary restraining order prohibiting the defendants, Beacon Pointe and Reeves-Sain from transferring, conveying, disbursing or otherwise disposing of the settlement proceeds from the personal injury action pending a conference call on December 17. The defendants filed an Answer on December 23, and a Rule 12.03, Tenn. R. Civ. P., Motion for Judgment on the Pleadings on December 31.

In an order on entered January 2, 2009, memorializing the December 17 conference call, the trial court ordered that the terms and obligations of the mediation settlement "should go forward as described in the mediation order with Beacon Pointe and Reeves-Sain paying the remaining balances of the settlement to Bussart Law Firm as scheduled. From those proceeds, Bussart Law Firm will escrow the sum of $94,000 in its trust account pending the resolution of the issues in this litigation." Beacon Pointe and Reeves-Sain were dismissed as parties and the remaining issues in the declaratory judgment action were reserved for further hearing. Following a hearing on January 26, the trial court found:

The Abatement and Survival of Action Statutes cited by the Plaintiff apply to all civil actions, but there is a distinction in the law between wrongful death actions and negligent actions as to the distribution of assets. The term "next of kin" properly denotes the person nearest of kindred to the deceased, that is, those who are the most nearly related by blood.

The Court further finds that the jury in this tort case specifically found that this was a negligence action and not a wrongful death action. Therefore, the proceeds of the suit pass by the Will of the deceased. The Will awards the residual to the four (4) children, i.e., Jerry Lindsey, Gary Lindsey, Joseph Lindsey, and Mary Ann Owens. The deceased's child, Janice Sue Timmins, got the home and land associated therewith. She is not included in the proceeds of this negligent action.

The Court further finds that T.C.A. § 20-5-111 confirms the Legislature's intent that the death of a beneficiary before the death of an injured parent works a loss of the cause of action.

The plaintiff appeals. He asserts the issues thusly:

1. Do the Abatement and Survival of Actions Statutes distinguish between injury resulting in death and personal injury actions in the manner in which damages are to be distributed to the decedent's next of kin?

2. In the context of the Abatement and Survival of Actions Statutes, does the phrase "next of kin" refer to those nearest in blood according to the line of consanguinity or those entitled to take under statutory distribution of decedent's estates?

3. Can personal injury proceeds be distributed according to the terms of an unproven will?

The defendants assert a fourth issue on appeal. They contend that the action should have been dismissed on the basis that the plaintiff failed to present a justiciable issue as he had not joined his father and two siblings, who, the defendants contend, are necessary parties.

II. Standard of Review

A motion for judgment on the pleadings may be filed "after the pleadings are closed but within such time as not to delay the trial." Tenn. R. Civ. P. 12.03. When a motion for judgment on the pleadings is made by the defendant, it is in effect a motion to dismiss for failure to state a claim upon which relief can be granted. Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn.Ct.App.1998). Such a motion admits the truth of all relevant and material averments in the complaint but asserts that such facts cannot constitute a cause of action. Id. In considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court must accept as true "all well-pleaded facts and all reasonable inferences drawn therefrom" alleged by the party opposing the motion. Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn.2004); McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn. 1991). Making such a determination is a question of law. Our review of a trial court's determinations on issues of law is de novo, with no presumption of correctness. Frye v. Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 713 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

III. Analysis

Justiciability

The defendants contend that "this case should have been dismissed below on the procedural issue of non-joinder of necessary parties and the failure to present a justiciable issue." Specifically, the defendants argue that the plaintiff's two siblings as well as Janice Sue Timmins' surviving husband, Harry Timmins, are necessary parties since the plaintiff was seeking a declaration affecting their rights as heirs of Janice Sue Timmins and that because they were not made parties to the action either as plaintiffs or defendants, the action should be dismissed.

Because of the nature of declaratory relief, the Declaratory Judgments Act, Tenn.Code Ann. § 29-14-101 et seq., "makes it incumbent that every person having an affected interest be given notice and an opportunity to be heard before declaratory relief may be granted." The Huntsville Utility District of Scott County, Tenn. v. General Trust Co., 839 S.W.2d 397, 403 (Tenn.App.1992). Tenn.Code Ann. § 29-14-107(a) requires:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.

Id. The statute, therefore, imposes stricter requirements than those imposed generally by the Tennessee Rules of Civil Procedure requiring the joinder of indispensable parties in all types of cases. See e.g., Tenn. R. Civ. P. 19.01 and 19.02. Consequently, non-joinder of necessary parties is fatal on the question of a justiciable issue, which, in an action for declaratory judgment, is a necessary condition of judicial relief. See Huntsville Utility, 839 S.W.2d at 399 (citing Wright v. Nashville Gas & Heating Co., 183 Tenn. 594, 598, 194 S.W.2d 459, 461 (1946)); Powers v. Vinsant, 165 Tenn. 390, 54 S.W.2d 938 (1932). This does not mean, however, that all persons who might be remotely affected need be joined. Shelby County Bd. of Comm'rs v. Shelby County Quarterly Court, 20 McCanless 470, 216 Tenn. 470, 392 S.W.2d 935 (1965).

Generally, the trial court has discretion to determine who should be made parties to proceedings for declaratory judgment as well as whether to grant or deny a declaratory judgment. Huntsville Utility, 839 S.W.2d at 399; see Powers, 54 S.W.2d at 938 (1932). Absent an abuse of that discretion, a declaration should not be disturbed on appeal. Huntsville Utility, 839 S.W.2d at 399 (citing Southern Ry. Co. v. Atlantic Coast Line R. Co., 209 Tenn. 177, 182, 352 S.W.2d 217, 219 (1961); Love v. Cave, 622 S.W.2d 52, 55 (Tenn.Ct.App. 1981)).

At the hearing on the defendants' motion, the trial court ruled that the action was "properly before the Court," but explained that,

if the Court was going to be concerned that Mr. Timmins' dec. sic action isn't properly filed because of the parties,

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