1 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE February 15, 2002 Session

PE RR Y M AR CH v. L AW RE NC E L EV IN E, ET AL 

### . Appeal from the Circuit Court for Davidson County No. 99P-1676 Frank G. Clem ent, Jr., Judge

No. M2000-02955-COA-R3-CV - Filed Mar ch 17, 2003

J EFF REY F. S TEWART , SP. J., d issen ting.

The majority opinion meticulously sets forth t he facts andtimetable of event s in this
case. I do not t ake ex cepti on to these findi ngs. Ne ither do I take l igh tly the conc lusions reached after lengthy a

n d serious co nsidera

tion. Howe

ver, I must respectfully

dissent fr

om the re sult reached by

the majority.

It seems the significant issue in this case is whether the trial judge properly a

llowed the Levines to amend their interve ning pe titio n to raise a separate or new ca use of action, namely

the issue of wrongful death. The heart of the prop osed opinion is directed to the abuse of discretion
use d by the trial

judge in allowing the amendment. The opinion also seems to raise the concern that by allowing the

amendment the trial judge permitted the nature o f the pr oceedings to turn from an in rem action to an inpersonam action.

In addressing the issue of whether or not the tri al judge abused h

is discre tion in permittin g the L

evines to amend the

ir interv ening p etition I

wish to mak

e sever al points.
First, it appears the code section allowing for an absen tee estate to be opened, TCA-30-3- 101 et seq, a

llows the c ourt to tak

e proof a t any time on whe

ther th e abs ent ee i s de cea sed . It indicates the court may f ind a person is deceased and then t ransfe

r the ca se toge

ther with all document s and the absentee e state fil e to th e prob ate cou rt. Th erefor e, the issu e of th e absen tee's status as living

or dead i s both prop er and a ppropria te for the court to determine. The initial proponent

of the absen tee est ate was Perry Marc h. The inter venin g petit ion o f the Levi ne's assertsthat Perry Mar

ch should not be allo wed to be the conservator of Janet March' s absentee estate because he may

have been responsible for her dea th. The Levi nes cited TCA -31-1-106 in support of

their pos it ion. This statute w ould not pe rmit Perr y Ma rch to be nefit fr om the dea

th of JanetM arch if he in fact caused her de ath. It appears the plea ding reflects whether Janet Marchwa s d ea d a nd by w hose han d she die d was at issue from the very beginning. There was
no allegation any

third person had caused h er death. The issue of whether she was living or dea d
seems to be an issue which makes the case more than just an in rem proc eeding. Rule 18 of the2

Tennessee Rules of Civil Procedure seems to permit the joi nde r of all claims and issues arising from the s ame tran saction to be includ ed or joined in a la

w suit involving the

same par ties.

Second , the trial

ju dge relied on the case of Branch v. Warren, 527 S.W.2d 89 (Tenn. App. 1975) which held that Rule 15.01 of Tennessee Rules of Civil Procedure need s no constr uction. It means precisely what it says, to wit: leave to amend sha ll be freely

given. The majority opinion, w

hich woul d rever se the tri al judge , relies h e avily on the case

of Merriman v. Smith, 5 99 S.W.2d 548 (Tenn. A pp. 1979) which hol ds the tria l judge t o a diffe rent standard in exercising his or her discretion. These considerat ions inc lude undue delay in filing, lack of notice, bad faith, repeated failures to cure deficiencies by

previ ous amendm ents, undue prejudice, and futility.

The ma jo ri ty o pi ni on re li es he av il y on the eff ects of undue delay , prejudice and the fact t hat a new cause of action is raised by the amendment. As to whether or not there is a und u e delay in filing, the record seems abundantly clear the Levi nes pla ced the b lame for their daughter’s death at the fe et of Perry March from the very

beginning on November 6, 1996. Perry March made at least two c laims for benefits out of her estate, which were dismissed, and yet he continu ed to f igh t the Levines at every turn for possession of certain properties belonging to his wife. The issue of whether he was entitled to any thing would be based on whethe rhe caused her death or no t . It would appear during the thirty-one month period of time be tween the filing of the original petition and the request for amendment involves numerous effor ts by the Levines to discover from Per ry Marc h h is knowledge of what caused the dea th or disappearance of their daughter. This became so much so that the tr ial court entered a protective order pr ohibi ting the Levi nes fro m inq uirin g into such m atter s in t he dis covery pro cess. At one stage of th e early

procee dings, th

e right of the L

evines to interve ne on thei

r behalf of their grandchildren

was cha llenge d. An appe al of the ir standing was ma

de to this court and wa s not determineduntil this court rendered its opinion in March o f 1999. Th at opinion determined that the Levines did in fact have standing to i ntervene on behalf o f their g randchildren. I

t was within three months of th at opinion being e ntered t hat the L evines amended their petition to raise the issue of wrongful deat

h. This doe s not seem

like an undue dela

y where the

question o f their standing or right to participate was at issue on appeal, and where the L evines right to discover what may have

happened to their daughter was denied.

While the acrimonious relation of the parties is resplen dent in t hese proceedings, the conduct of Perry Ma

rch is central in this one respect: he had moved from Tennes see to I

llinois t o Mex ico . Th ese mo ves mad e hi m a d ifficu lt per son to ser ve w it h pl ead in gs. It is also apparen t he was a dif

ficult pe rson for the cour t to contro l in order

to get him to comply

wi th it s or der s. It would appear there is no prejudice to him by the delay bec ause much of th e delay seemed t

o have bee n ca used by his appea ls and his refusal to submit to discovery or by requesting protective orders in the discovery process. It would appea r since he entered into a sett lement agreement

with the conservator of the absentee estate w hich would allow him to receive monies out of th e estate of Janet March personally the issue of whether he would be entitled to anythin g or not at all

was and remains a central issue in this case so long as the dete rmination of who caused the deat h of Janet M arch is a

t issu e. Therefore, it does not appear to me ther e is any g reat prejudice caused to Perry March.3

Certainl y it is clear the question of whether Janet March is in fact dead a nd wh o or wha t caused her death are central

issues for co nsideration in either an absentee estate case or a wrongful death case. The remedy is di fferent in eac h case but the responsibility is the same. F or the sake of judicial economy , it would seem logical to al lo w these cases to be combined since they revolve around th

e same f acts. The record indic ates the

tria l judge bifurcated the issues, but it does not indicate the conservator was removed a s a party to the wr ongful death action. Th e record seems to reflect the conservator was re lieved of any r

es ponsibilit

y to participate in the wrongful death part

of t he litigation in order to conserve the assets of Janet March. I f the issue of the death of Janet March was l itigate d in the ab sentee e state sep arate f rom a wro ngful de ath action the likelihood of inc onsis tent results would seem to be greater than if they are tried in the
sameliti gation . The q uesti on of w hethe r allo wing t he amend ment cau ses a pro

blem unde

r Rule 15 of the Tennessee Rules of Civil Procedure on relation back in time . This issue seems to turn
on the quest

i on of whether or not the amendment arose out of the conduct, transaction and
occu rrence set forth in the original complaint. The record indicates the facts alleged have not changed and therefore

represent the same occurrenc e.
It wou ld appea

r under TCA-30-3- 201 that th e definition of an

absente e has not c

hanged

. An absentee is defined as “any resident of this state, or any person owning prop erty her ein, wh o disappears under ci rcumstanc es in di ca ti ng th at (h e/ sh e) ma y ha ve di ed , e it he r n at ur al ly,
ac ci de nt al ly, or at the hand of another (emphasis added), or m ay have disa

ppeare d as the r

esult of m ental derang ement, a

mnesia or other me ntal cau se.” The

refore , by its definition this sta

tute
seems to allow a person to raise the question at least of whether a pe rson has disappeared or died at the hand o f anothe

r. This is s omething

that clea rly the Levines ha

ve attempted to do both i n their origina l interve nin g pe tition and in their motion to amend. For the sake of judicial
econo mythe issu e of who caused the death of Janet March is at issue for one matter (the absentee estate) then wha t harm or p

rejudic e could it

be to allo w the same

issue tob e resolved withthe wrongful death action in only one pr oceeding, especially

since the jurisdiction of the court to decide both issues is not questioned. Th ir dl y, in further support of the trial judges position in this case, the Merriman case, Id. , makes a distinction between the standards to be applied if the motion t o amend is pretrial or during the trial. In the Merriman case, th e plain tiffs ask

for lea ve to ame nd at the c lose of their proof. Great pr

ejudic e w ould have resulted because had the amendment been granted additional discovery would have been required at some g reat expens e to all of the parties and would have
re sulted in a greater delay in the conclusion of the trial. A denial of the amendment under the Merriman facts certainly makes sense. In the ca se at hand, ve ry litt le discovery ha

d taken place andin fact the Levines we re denied the right to make inquiry on this subject while appearing that all stages to be i ntereste d in knowing Mr. March’s position on what happened to their daug hter. Furthermore, the amendment waspresent ed as pre

viously noted with

in th re e months of determining their sta

tu s to have prop er sta ndin g in th e case an d certa inly occu rred at a stage sufficiently ahe ad of the trial date so as not to cause any prejudice.

Fi na ll y, the remaining issue is whether or not the default judgment entered as a sanc tion by the court for Perry

March’s failure to c omply with dis covery or

der should be sustained. The majority opinion would not permit the trial judge to consider Mr. March’s conduct prior to the amend men tin making his decision. I would disag ree with the majority opinion on this issue. The trial judg e must make a decision on sanctions based upon the new issue raised, the wr ongful4

death actio n, but in det ermin ing th e futility of whether to pr oceed with further discovery request s, motion s and orde rs should not be made

in a vacu

um. He should have a

right to consider his course of dealing in the conduct with a party litigant up to that stag e of the procee ding. In this case, it is fairl y clear the trial cou

rt had dif ficulty in getting Mr. Ma

rch to comply with its orders for a period of years. After the July 1999 a mendment to p ermit a wrongf ul death cau se of action, the parties continued to have difficulty in establishing discovery schedule s. The rec ord indic ates Mr. March w as noti ced to two separate depositions, which he failedto attend. On one occasion, Mr. March through his attorne y filed a motion for pr otective order. Subsequently, the parties ag reed to a deposition date and Mr. Marc h failed to attend that. As a result of Mr. March’s failure to attend the December 1999 agreed upon deposition date, the court ordered Mr. March very

specifically to notify

the court and t

he parties of h is willingness to attenda court o

rdered depositio n of Dec ember 27 and 28 by Decemb er 17, 19 99. Mr. Ma rch did not give no tice to the

court or the part ies nor di d he atte

nd the cou

rt order ed depos ition date s in December. The court also gave notice by the same order of a h earing schedul ed for January 14, 2000 where th

e court w ould consi der a mot ion for sa n ctions and default judgment filed by the Levines. Aga

in, Mr . Mar

ch fa iled t o atte nd an d def

ault j udgm

ent w as en

tere d. Whi le this sanction may be extreme, “it is appropr iate where ther e has been a clear rec ord of delay or contumac ious condu ct.” Shahrdar v. Global Housing, Inc., 983 S.W.2d 230 (Tenn. App. 1998) “whena trial court exercises its discretion in rendering a def ault as a sanc tion, its decision will be disturbed only upon a finding of abuse of discretion.” Shahrdar, Id . I do not think it was inapprop riate for the court to consider the past conduct of Mr . March in light of his conduct since the amendment was granted and tha t this was not an abuse of his discretion.

I wou ld however r emand the case ba ck to the t

rial cou rt. I t would ap

pear und er TCA §30-3-102 the issue

of death shall go to the cou

rt or jury as o ne of fact to be determined upon evidence. From the

record in th is case it appears no evidence of the de ath of Janet March was presented to the jury and the jur y simply mad e a finding or a

ward ba sed upon d amage s. Therefore, I would remand the ca se to the presentation of facts to the jury to decide the issue of death. Respectfully submitted,

___________________________________ Jeff rey F. S tew art , SP. J.