# FILED

July 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk DR. & MRS. WENTWORTH S. ) MORRIS ) and ) MARY MAURICIA MORRIS, ) ) Plaintiffs/Appell

ants, ) Appeal No.

) 01-A-01-9809-BC- 00468 v. ) ) Tenne ssee C laims C omm. STATE OF TENNESSEE, ) Nos. 101452 and 101807 ) Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE TENNESSEE CLAIMS COMMISSION FOR

DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

HELEN LOFTIN CORNELL 3635 Woodmont Boulevard Nashville, Tennessee 37215 ATTORNEY FOR PLAINTIFFS/APPELLANTS

JOHN KNOX WALKUP Attorney General & Reporter
MICHAEL E. MOORE Solicitor General
MEREDITH DEVAULT Civil Rights and Claim

s Division Cordell Hull Buildin

g, Second Floor 425 Fifth Avenue No

rth Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE2 

## O P I N I O N

T his case involves the claims of a husband and wife and their adul t daughterwho were all threeliving together in one h ome. Followi

ng an incident involving the discharge of a f irearm, the

adult daughter was a

rreste d and delivered to Middle Tennessee M ental Health

Institute ("MTMH

I") for forensic examination

to determine he

r competence to stand trial. After her release fro

m MTMHI, the daughter filed c laim with t

he Tennessee Claim

s Commissio

n alleging rape, unlawful c onfinement, ph

ysical abuse and

drug a buse. The parents likew ise fi led cl aim wit h the C laims C omm ission alleging loss of companionship,

society and ser

vices, together with medical and other expenses relative to the ir adu lt dau ghte r. Almo st sev en year s late r, the Claims Commission

granted summ

ary judgm ent to the State

on the claims of

the parents and dismissed with p

rejudice, under

Rule 41(.02), the

claim of the daughter

for failure to pros ecute h er claim a nd fail ure to c omply with discov ery r equirement s. All the claimants

have appealed to this

court where we affirm the j udgment of the trial court in al

l respects.

I. FACTS Dr. Wentworth S. Morris, a retire d professor from

Austin Peay St

ate Univer sity, lived with his wife , Mary Eva M orris, and adult dau

ght er, M ary Mauricia Morris, in Clarksville, Tennessee. Mary M auricia Morris, who was born September 19, 1962, at ta ined a Bachelor's

Degree in Mass Communica

tions from Austin Pe

ay State Unive

rsi ty. While living with her parents, Mary Mauricia worked a t Wal-Mart,

The Record Bar and Radio Station WJZM.

In August of 1990, Mary

Mauricia Morris was standing

in the yard of her home with her m

other when two m

otorcyclists

drove into their drive

way. She fired two shots into the

air and was shortly

thereafter arr

ested and charged w

ith reckless endangerment and unlawful possession of a firearm . On August 24, 1990, following the

gunfire incident, Mary Mauricia was ordered by the court to undergo outpatient forensic testing, and three weeks later an order was entered for a maximum thirty day confinement at MTMHI. Her confine ment3

shouldhave e xpire d on Oc tobe r 13, 1 990, b ut for some reason she remained i

n confinement at

MTMHI until Oct

ober 25, 1990.

On August 23, 1991, Mar y Mauricia Mor

ris filed her claim wi

th the D ivision of Claims Administration alleging that she had suffered medical malpractice, assault and r ap e at the hands of MTMHI employees. Thereaf ter, Dr. an d Mrs. Morri s file d thei r clai ms alleging loss of companionship, society and services of

their adult daughter, together with medical and other expenses. Theseclaims were

transferred to the

Tennessee Claim

s Commissio

n and consolidated. On March 2, 19 94 , based on admis sion by the defend ant, summary judgment was granted on the issue of liability to Mary Maur icia Morris for illegal confinement for the period October 14, 1990 through

October 25, 1990. On all other

issues her motio

n for summa

ry judgme

nt was overruled. After voluminous procee

dings, on July 28, 1998, the Claims Commission, in an extensive memorand

um, disposed of a

ll issues in the consolid

a ted cases by granting the State's motion for summary judgment as to the claims of Dr. and Mrs. Wentworth S. Morri s and dismissing the claim of Mar

y Mauricia Mor

ris underRul e 41.02 of the Tennessee R ules of Civil Proce

dure for failure t

o prosecute.

II. THE CASE OF DR. AND MRS. WENTWORTH

S. MORRIS Summary judgment having been granted by the Claims Com mission, this courton appeal cannot weigh the evidence but must require th

e moving party

to demonstrate

the absence of any genuin e and material factual issu e. Byrd v. Hall, 847 S.W.2d

208, 214 (Tenn. 1993). If after considering the facts established by the record and all legitimate inferences to be dra wn there from in favor o

f the non-moving

party, the co

urt finds that a

material issue

of fact is present

ed or if there is doubt

as to whether or not such fact issue is prese nted, this court m

ust vacate the summary judgment. Evco Corp. v. R oss , 528 S.W.2d 20,

24-25 (Tenn. 1975).
It is undisputed in this record that at the time this chain of events began Mary Mauricia Morris w

as an adult

college graduate w

ith gainful emplo

yment histo ry. The repeated refere nce to her in the pleadings of this claimant as an4

"unemancipated

adult child" are m

eaningless in the abse

nce of eviden ce. Tennessee Code A

nnotated section 1-3- 113(a) provides:

Notwithstan d ing any laws to the contrary, an y person who is eighteen (18) y

ears of age or olde

r shall have the same rights, duties, and responsibilities as a person who is twenty-one (21) years of age, except as provided in subsection

(b) relative to the

rights to purchase, possess, t ransport, and consume alc oholic beverages, win e, o r beer as those term

s are defined in titl

e 57.
Emancipation

may occur by operation of law. Glover v. Glover , 44 Tenn. App. 712, 720, 319 S.W .2d 238, 241 (1958). The enac tment of Tennessee Code Annotated sectio n 1-3-1 13(a) co mpletel y e mancipated those ov er eighteen years of age from the control of their p arents. Garey v. Garey , 482 S.W.2d 133 , 135 (Tenn. 1972)

. Accordingly, Mary Maurici

a Morris becam

e completely emancipated

when she becam

e eighteen yea

rs old, even t

houg h she continued to live in her parents' h ome. Glover v. Glover , 44 Tenn. App. at 725, 319 S.W.2d at 243 (noting that complet e emancipa tion can occur even t

hough the childcontinues to live with his or her parents). Where ema ncipation of a m

inor is complete, the parent's right to ma intain action for loss of services due to injuries is cut off. Memphis Steel Constr. Co. v. Lister , 138 Tenn. 3 07, 197 S.W. 902 (Tenn. 1917).

There is no evidence in this r ecord that Mary Mauricia Morris was diseased or disabled at the tim e she reached her

majority

. Case law exists which, under such circumstances, would make Dr. and Mrs. Morris responsible for her upkeep and perha

ps give them a co

rresponding

ri ght to recover for medicalexpenses and loss of society and services. See Sayne v. Sayne , 39 Tenn. App. 422, 284 S.W.2d

309 (1955) (finding tha

t a twenty-sev

en year old

daughter who had been disabled sinc e childhood

and lived in the pare

ntal home was n

ot emancipated

such that the court could order her f ather to pay child support). Indeed, the only evidence in t his record consisten

twith non-emanc

ipation is the fact that Mary Maur

ic ia Morris continued to live in the home of her par

ents. This is insufficient to es

tablish non-ema

ncipation. Glover v. Glover , 44 Tenn. App. at 725, 319 S. W.2d at 243.5 Claimant relies on RoddyManufacturing Co. v. Dixon, 21 Tenn. App. 81, 105 S.W.2d 513 (1936

), to support her posi

tion. That case in

volved the loss of services of a 19 year old son i mpaired b y tort injury and thus limited i

n his ability to perform fa

rm labor on his f

ather's farm. The

son was 19 years of

age atthe time when the law provided that em ancipation by att

ainment of

majority did not occur until age 21. Chapter 162 of the P ublic Acts of 1971, c

odified in partin section 1-3-113(a) of the Tennessee Code, reduced the age at which one reached majority

from age 21 to age 18. In A

ugust 1990, Mary M

auricia Morris was 28 yea rs of ag e, well p ast the age of majo rity.

Itis fundamental that

once a child reaches the age of maj ority there is a complete em

ancipation of the m

inor from the pr

otective bonds of parental control. At the time o f complete em ancipation the parents' legal du ty to support the chil d is terminated.
In Section 3 of Chapte

r 162 of the Public A

cts of 1971 the General Assembly h

as conferred the s

tatus of adulthood

on persons 18 years of age or older. B y lowering the age of major

ity from 21 to 18 years of age the Legisla ture has comple

tely emanc

ipated the minor from the contr

ol of the parents and r

elieved the parents

of their attendant leg al duty to support th e child. Garey v. Garey , 482 S.W.2d 133, 135 (Tenn. 1972) (citations omitted).

To the extent that the complaint of Dr. and Mrs. Morris seeks recovery for loss of s ociety and com

panionship of an adult c

hild, we find that t

here is no basis for such an action. While a growing m inority of sister jurisdictions seem to recognize such a caus e of action, Howard Frank, M.D., P.C. v. Super io r Court , 722 P.2d 955 (Ariz. 1986); Masak i v. General Motors Corp. , 780 P.2d 566 (Hawaii 1989), the maj ority rule does n ot recognize such an

action. Boucher v. Dixie Med. Ctr. , 850 P.2d 1179 (Utah 1 992). The ma jority rule is grounded in public policy and was well stated by the Wisconsin Supreme Court in Estate of Wells v. Mount Sinai Medical C enter in a context simi

lar to the case atbar

. The issue in Wells was whether a parent can recove

r for loss of

society and companionship of an adult child whose inj uries allegedly resulted from medicalmalpractice . Citing Hass v . Chi cago & North Western Railway Co. , 179 N.W.2d 885,

888 (Wis. 1970),

the court in Wells

stated:6 Itis recognized by

this and other courts

that even where the chain of causation is com

plete and direct,

recovery aga

inst the negligent tortfeasor may sometimes be denied on gro unds o f public policy because the injury is too re

mote from

the negligence or too 'w

holly out of proportion

to the culpability

of thenegligent tort-fea

sor,' or in retrospect it

appears too highly

extraordinary

that the negligence shouldhave brought about the harm, or because allowan ce of recovery would place too unreasonable a burden [on negligent tortfeasors], or

be too likely to ope

n the way for f

raudulent claim

s, or would 'enter a field th at has no sensible or just stopping p oint.'
Estate of Wells v. Mount Sinai Med. Ct r, 515 N.W.2d 705 (W is. 1994) (quoting Hass , 179 N.W.2d at 888) (quoting Col la v. Mandella , 85 N.W.2d 34 5 (Wis. 1957))

. No Tennessee case has recognized a pare ntal cause of actio

n for loss of society and companionship

of an emancipa

ted adult child. The majori

ty rule in sister jurisdictions is persuasive that no such cause of action is viable.

The evidence in the case , primarily the deposition of

Dr. Morris, c

learly shows that neither he

nor his wife MaryEva Morris, knew anything first ha

nd about whathappened to Mary Mauricia Morris

while she was at MTMHI. No evidence in the record approaches the serious emotional injury required to effect recovery under Ramsey v. Bea vers , 9 31 S. W.2d 527 (Tenn.1996). The undisputed facts and conclusio ns to be drawn from those fac ts in this case

would permit a reasonable pers on to reach only one conclusion. Dr. and Mrs. Morris cannot prevail as a matter of l aw in any of t heir c laims b efore the Cl aims Commission

in this case. Summary judgment was properly granted. Byrd v. Hall , 847 S.W.2d 208, 214 (Tenn. 1993).

III. THE CASE OF MARY MAURI CIA MORRIS Rule 41.02 of

the Tennessee Rules of

Civil Procedure is

a mirror im

age of the federal rule. This beingtrue, federal authorities provide helpful guidance in our interpretation of the Tennessee rule. Andrews v. Bible , 812 S.W.2d 284, 287 (Tenn. 1991); Bowman v. Henar d , 547 S.W.2d

527, 530 (Tenn. 1977 ). Rule 41.02 provides in pert

inent part: Unless the court in

its order for dism

issal otherwise spe

cifies, adismissal under this subdivision and any dismissal not

provided for in this Rule 41, other than a dism issal for lack of j urisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits.7

Tenn. R. Civ. P. 41.02(3). W hile an involuntary dismissal with p

rejudice is reviewed on appea

l under an abuse of discretion standard, Link v. Wabash Ry. Co. , 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), it is likewise true that dismissal with prejudice shoul d be done sparingl y. Harris v. Bap tist Me m'l Hosp., 574 S.W.2d 730, 731 (Tenn. 1978).

The following chronology of events in the Clai

ms Comm

ission is indispensable

in determining i

f the Claims Commission's action of involuntary dismissal with p

rejudice was a

n abuse of discretion :

1. The claimants fil ed claim with the Division of Claims Administration

on August 23, 1991 alle

ging negligence, m

edi cal malpractice, assault, battery

and intentional inflic

tion of emotional

distress. 2. This claim was tr

ansferred to the T

ennessee Claim

s Commissio

n on December

2, 1991 in accordanc

e with Tennessee Code Annotated sec tion 9-8- 402 (c). 3. The claima nts f

iled a joint compla int wi th th e Tenn essee Claims Commission o

n March 3, 1992. 4. Defendant

denied the allegatio

ns of the complai

nt on June23, 1992. 5. On motion of the cla imants, a tri

al datewas set for Apri

l 23, 1993. 6. The Commission continued the trial be cause of failure o

f the claimant, Ma

ry Mauricia M

orris, to respond to i

nterrogatories. 7. On November 22,

1993 , th e claimants filed a motion for summ ary judgment. 8. On March 2, 1994, Commissioner Murray granted partial summary judgment,holding that Mary Mauricia Morris had been improperl

y confined for the period October 14,

1990 through October 2

5, 1990. In all other r

espects, the motion for sum

mary jud gment by the

claimants wa

s denied. 9. Followinga number of m otions essen tially unrelate d to the controllingquestion, Comm issioner Baker, by

order entered Ma

y 28, 1996, ordered that the deposition of Mary Maurici

a Morris be taken by

the defendant on Ju ly 24, 1 996 a t 10: 00 a.m. 10. The deposition did not take place and Commissioner Baker ordered her to appear for d

eposition on Novem

ber 12, 1996.8

11. On November 8, 1996, asubpoena was issued by the Administrativ

e Clerk of the Tenne ssee C laims Commission requiring Mary Mauricia Morris to appear for her sc

heduled deposition on No vember 12, 1996. 12. This subpoena was se rved upon claimant by her own attorney, Helen Cornell, on Novem

ber 11, 1996. 13. Mary Mauricia Morris failed to

appear for

her deposition either on November 12 or

November 13,

1996. 14. On November 15, 1 996, defendant noticed Mary Mauric ia Morris and her mother Ma

ry Eva Morris to appear f or depositions on Dece

mber 10, 1996. 15. Once again, the de position did not

take place and on D

ecember 13, 1996, defendant f

i led a motion to dis

miss Mary M

auricia Morris' c

laim for failur e to coo perate in disc overy. 16. On January 31, 1997, co unsel for Mary Mauricia Morri s filed her

own affidavit, along with the affidavit of her paral egal, Carey Hambrick, Jr., relative to their efforts to get Mary Mauricia Morris to appear for the November 12, 1996 deposition. T

he affidavit of Ha

mbrick provides : 1. I am a paralega

l in the law office

of Helen Cor nell, Attorn ey. 2. On November 10 , 1996 I went with Ms.Cornell to Clarksville

to the Montgomer

y County She

riff's Departm

ent andto the residence of Mar

y Mauricia Mor

ris at Vacation Mo

tor Hotel in Clarksville, attempting to serve a subpoena upon M[s] . Morris for her presence at he

r deposition on Novem

ber 12, 1996. 3. On November 10th M s. Cornell requested sheriff service of this subpoena. She f

urther put a

cop y of the subpoena under M[s]. Morris' door and she left a copy of t

he subpoena

in the door of the law office of Stacey Tu rner, the crim

inal defense

attorney for Mary Mauricia

Morris. 4. On November

12, 1996 I went wit

h Ms. Cornell to

the residence of Mary Mauri cia M orris at Vacation Motor Hotel, offering to transpor

t Ms. Morris to the D

eposition. 5. We further asked Ms.Stacey Turne r at the Montgomery County Courthouse to call M[ s]. Morris or to bring Ms. Morris

to the deposition, all of

which Ms. Turner

refused to do. 6. Every effort w as made by M s . Cornell and me to secure Claimant Mar

y Morris' pre sence at the depositi on. 7. In addition, Ms. Cornell and I pick ed up Dr . and Mrs. Morris in Indian Mound, T e nnessee and took them to their deposition s on November 13, 1996 and returned them to their home in Indian Mo

und.9

17. Oral argume

nt on allpending motions wa s heard January

31, 1997, and on February 18, 1997, the Commissioner entered an order providing in

part as follows: "[i] t is ordered that Ma ry Mauricia M

orris will be given two more chanc es to appear for her deposition, that the defendant subpoena Mary Mauricia Morris to appear for her deposition on February 24, 1997 and February 25 , 1997 at 10:00 a.m . at Austin Peay State University

in Clarksvi lle , Tennessee." 18. On February25, 1997, Commissioner Baker appeared with counsel for the parties for the scheduled deposition of Mary Mauricia Morris. She once againfailed to appear and the Commissioner by order of March 5, 1997 held that Helen Cornell no longer re pr esented M ary Mauricia Morris and that the Administrative

Clerk for the Te

nnessee Claims

Commission

should send a

copy of the order directin

g Mary Maurici

aMorris to respond

to the court within th

irty days and that her fa ilu re to do so would indicate to the court that she had abandoned her claim and would constitute groun ds for the State

t o move for dismi ssal o f her l awsui t on t he bas is of h er aba ndon ment of the cl aim. 19. No resp onse was forthcoming from Mary Mauricia Morris a

nd on April16, 1997, defendant moved to dism

iss the claim

of Mary Mauri

cia Morris under Rule 41.02(1) for failure to prosecute. 20. Finall y, on October 23, 1997, Comm issioner Baker dism

iss ed her claim under Rule 41.02(1) for failure to prosecute. 21. On November 18 , 1997, the claimant f iled a motion unde

r Rul e 52.02 and Rule 59.04 asking t he Commiss

ion to amend

its findings of fact a

nd make additional findings, and also to alt er or am end its judgment. This was accompanied

by a Rule 60 m

otion to reinstate

the partial summ

ary judgm

ent on liability issued by

Commissione

r Murray on Fe

bruary 28, 1994. 22. On July 28, 1998, Comm is sioner Baker overr

uled a ll motion s pending and from this order claim ants appeal.

The patience and restr aint of th e Commissione r in this case is commendable. It is d iffic ult t o ima gine ho w he could have been more lenient withthe totally unexpl

ained refusal of

Mary Maurici

a Morris to pursue

her own claim. She refused to appe ar for depositions

even after her own lawyer served

aproper subpoena

on her to appear. B y any analy sis associated with logi

c, she10

has deliberately f

ailed and refused to

prosecute her claim. Like any o ther pa rty, she is required to subm

it to discovery a

nd it is her obligation to tim ely pursue her ow n clai m.

T he belat ed effort by he r counsel to resurr

ect the case beca

use of the p artial summary judgm

ent granted in 1994 by Commissioner Murra y is of n o avail. Damages ar

e an indispensable el

ement of a tort claim and it was her duty to prosecute this

part of her cl aim to its conclu sion just as it was h er duty to pursue all other elem

ents of her claim

upon which summary

judgment was

not granted. "As to the P laint iff's insistence t hat the jury w

as required to retu

rn a verd ict of at l east nominal dam ages for loss of conso

rtium, we not

e that in

ne gligence cases wherein damages are an element of the right to recover , nominal damages are never proper." Skoretz v. Cowden , 707 S.W.2d 529, 532 (Tenn. App. 1985).

The action of the Com

missioner in dism

issing the claim of Mar

y Mauricia Morris with prejudice under Rule 41.02(1) is ce

rtainly not an abuse of discre

tion underthe facts of this case. See Hutchins v. A. G. Edwards & Sons, Inc. , 116 F. 3d 1256 (8th Cir. 1997); Palmieri v. De faria , 88 F.3d 136 (2d Cir. 1996 ) ; Dorsey v. Scott Wetzel

Servs., Inc. , 84 F.3d 170

(5th Cir. 1996); Morgan v. City of Marmaduke , 958 F.2d

207 (8th Cir. 1992); Woods v. Union P acificR.R. Co. , 957 F.2d 548 (8th Cir.1992); Figueroa v. Alegr ia , 896 F.2d 645 (1st

Cir. 1990). The judgment

of the Claims Commission is in all respects af firmed with c

osts assessed jointly

against the claim

ants.

__________________________________ ____ WILLIAM B. CAIN, JUDGE
CONCUR:

__________________________________ __ BEN H. CANTRELL, P .J., M.S.

__________________________________ __11

WILLIAM C. KOCH, JR., JUDGE