Robert Perkins v. Roshida Nelson

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01789-COA
IN THE MATTER OF THE ESTATE OF APPELLANTS
DELVYN NELSON, DECEASED: ROBERT
PERKINS, NATURAL FATHER OF DELVYN
NELSON, DECEASED; L.P., A MINOR, BY AND
THROUGH HER NEXT FRIEND AND
NATURAL MOTHER, JUANITA CROOM; K.P.,
A MINOR, BY AND THROUGH HER NEXT
FRIEND AND NATURAL MOTHER, ATLAY
NELSON; AND A.G., A MINOR, BY AND
THROUGH HIS NEXT FRIEND AND NATURAL
MOTHER, NYKESHIA GREEN
v.
ROSHIDA NELSON APPELLEE
DATE OF JUDGMENT: 12/16/2016
TRIAL JUDGE: HON. PATRICIA D. WISE
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: GINNY Y. KENNEDY
CECIL MAISON HEIDELBERG
ATTORNEYS FOR APPELLEE: CARLOS EUGENE MOORE
ASHLEIGH LAUREN QUINN
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART - 07/26/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLTON, J., FOR THE COURT:
¶1. The Hinds County Chancery Court entered an order naming Roshida Nelson and her
minor daughter Tina1 as the sole heirs at law and wrongful death beneficiaries of Delvyn
Nelson. The appellants now appeal, arguing the following assignments of error: (1) the
chancellor erred in determining that Robert Perkins and his natural children were not
wrongful death beneficiaries, (2) the chancellor erred by adjudicating Tina as a wrongful
death beneficiary, (3) the wrongful death statute is unconstitutional, and (4) the chancellor
erred by failing to apply the doctrine of unclean hands sua sponte.
¶2. Upon our review, we find that the chancellor erred in part in her determination of the
wrongful death beneficiaries. Accordingly, we affirm in part, and reverse and render in part.
FACTS
¶3. Delvyn Nelson was born to Roshida Nelson on January 26, 2012. Delvyn was
transferred to the neonatal intensive care unit at the University of Mississippi Medical Center
(UMMC) in Jackson and died on June 2, 2012, while a patient at UMMC. The death
certificate, dated July 3, 2012, stated that Delvyn’s cause of death was “sepsis, fungal” due
to or as a consequence of “multiple organ system failure, cardiopulmonary disease, and
congenital heart disease.”
¶4. After Delvyn was born, Roshida filed an action to determine paternity against Robert
Perkins in the District Court of Sumter County, Alabama. Roshida and Perkins were never
married, and Perkins was not listed on Delvyn’s birth certificate. After Roshida filed the
paternity action, Perkins denied that he was Delvyn’s natural father and requested genetic
testing. Perkins further denied paternity when Roshida sought financial support from Perkins
1
We use a fictitious name to protect the privacy of the minor child.
2
through the Social Security Administration.
¶5. Although Delvyn tragically died before the parties received the test results, the results
revealed that Perkins was Delvyn’s father. The results were filed with the Alabama court
on June 18, 2012. On that same day, Roshida filed a motion to dismiss her action regarding
paternity due to Delvyn’s death, and the motion was granted without objection from Perkins.
The Alabama court dismissed the action without an admission or adjudication of paternity.
¶6. In December 2013, Roshida, individually and on behalf of Delvyn’s wrongful death
beneficiaries, filed a medical malpractice suit against UMMC. The record reflects that
Roshida did not name Perkins as a plaintiff and she did not notify him of the commencement
of the action. The malpractice suit was settled, and the settlement proceeds were deposited
in the registry of the circuit court pending the determination of Delvyn’s wrong death
beneficiaries.
¶7. On February 26, 2014, Roshida filed a petition to adjudicate Delvyn’s heirs at law and
wrongful death beneficiaries in the Hinds County Chancery Court, and she published notice
of the petition in The Clarion Ledger on April 14, 21, and 28, 2014. Perkins acknowledged
notice of the petition.
¶8. On February 10, 2015, nearly a year after Roshida filed her petition to adjudicate
Delvyn’s heirs and wrongful death beneficiaries, Perkins filed a motion asking the Alabama
district court to amend its order dismissing the action regarding paternity and declare him
Delvyn’s father. The Alabama court granted Perkins’s motion.
¶9. Roshida subsequently filed a motion to set aside the adjudication of paternity, which
3
the Alabama court granted on August 12, 2015. In setting aside the adjudication of paternity,
the Alabama court ultimately held that Perkins was not the legal father of Delvyn. The
Alabama court explained that after the original action regarding paternity was dismissed in
2012, no subsequent hearing appeared on the docket, “nor was evidence of [Perkins’s]
admission of paternity presented to the [c]ourt, and [Perkins] did not admit paternity of
[Delvyn] by statement in open [c]ourt nor by filing any document acknowledging paternity
of [Delvyn].” Perkins appealed to the Alabama Court of Appeals, which affirmed the district
court’s findings.
¶10. Perkins then filed an answer to Roshida’s February 26, 2014 petition to adjudicate
Delvyn’s heirs and wrongful death beneficiaries. In his answer, Perkins alleged that as
Delvyn’s natural father, he and his other minor children, Lisa, Kim, and Alan, qualified as
wrongful death beneficiaries.2
¶11. The chancellor in the instant case entered an order on December 16, 2016, finding that
Roshida and Tina were Delvyn’s sole heirs at law and wrongful death beneficiaries. The
chancellor held that neither Perkins nor his other minor children met the statutory
requirements to be determined Delvyn’s wrongful death beneficiaries and therefore they
could not recover wrongful death benefits. It is from this order that Perkins, Lisa, Kim, and
Alan appeal.
DISCUSSION
2
We use fictitious names to protect the privacy of the minor children. Lisa is
represented in this action by her natural mother, Juanita Croom. Kim is represented in this
action by her natural mother Atlay Nelson. Alan is represented in this action by his natural
mother Nykeshia Green.
4
I. Determination of Wrongful Death Beneficiaries
¶12. In this appeal, Perkins, Lisa, Kim, and Alan argue that the chancellor’s determination
of wrongful death beneficiaries was clearly erroneous. “We apply a limited standard of
review to appeals from chancery court.” In re Estate of Ivy, 121 So. 3d 226, 232 (¶29) (Miss.
Ct. App. 2012). Upon review, “[w]e will not disturb the factual findings of a chancellor
unless such findings are manifestly wrong or clearly erroneous.” Id. (internal quotation
mark omitted). We apply a de novo standard of review to questions of law. Id.
¶13. Mississippi’s wrongful death statute, Mississippi Code Annotated section 11-7-13
(Rev. 2004), provides:
Whenever the death of any person . . . shall be caused by any real, wrongful or
negligent act or omission . . . as would, if death had not ensued, have entitled
the party injured or damaged thereby to maintain an action and recover
damages in respect thereof . . . and such deceased person shall have left a . . .
father or mother, or sister, or brother, the person or corporation, or both that
would have been liable if death had not ensued . . . shall be liable for damages,
notwithstanding the death, and the fact that death was instantaneous shall in
no case affect the right of recovery. The action for such damages may be
brought in the name of the personal representative of the deceased person . . .
for the benefit of all persons entitled under the law to recover, . . . or by the
parent for the death of a child . . . or by a sister for the death of a brother . . .
or a brother for the death of a brother, or all parties interested may join in the
suit, and there shall be but one (1) suit for the same death which shall ensue for
the benefit of all parties concerned, but the determination of such suit shall not
bar another action unless it be decided on its merits. Except as otherwise
provided in Section 11-1-69, in such action the party or parties suing shall
recover such damages allowable by law as the jury may determine to be just,
taking into consideration all the damages of every kind to the decedent and all
damages of every kind to any and all parties interested in the suit.
....
In an action brought pursuant to the provisions of this section by the . . . father,
mother, sister or brother of the deceased . . . such party or parties may recover
5
as damages property damages and funeral, medical or other related expenses
incurred by or for the deceased as a result of such wrongful or negligent act or
omission . . . , whether an estate has been opened or not. Any amount, but only
such an amount, as may be recovered for property damage, funeral, medical
or other related expenses shall be subject only to the payment of the debts or
liabilities of the deceased for property damages, funeral, medical or other
related expenses. All other damages recovered under the provisions of this
section shall not be subject to the payment of the debts or liabilities of the
deceased, except as hereinafter provided, and such damages shall be
distributed as follows: . . .
if the deceased has no husband, nor wife, nor children, the
damages shall be distributed equally to the father, mother,
brothers and sisters, or such of them as the deceased may have
living at his or her death. . . . There shall not be, in any case, a
distinction between the kindred of the whole and half blood of
equal degree. The provisions of this section shall apply . . . to
the mother on account of the death of an illegitimate child . . . ,
and they shall have all the benefits, rights and remedies
conferred by this section on legitimates. The provisions of this
section shall apply . . . to the natural father on account of the
death of the illegitimate child . . . , and they shall have all the
benefits, rights and remedies conferred by this section on
legitimates, if the survivor has or establishes the right to inherit
from the deceased under Section 91-1-15.
¶14. We now turn to review each wrongful-death beneficiary’s claim.3
3
In Long v. McKinney, 897 So. 2d 160, 175-76 (¶67) (Miss. 2004), the supreme court
ruled:
Section 11-7-13 provides that wrongful death litigation may be brought by the
personal representative of the deceased or by any one or more of several
statutory beneficiaries, for the benefit of all entitled to recover. Unless all
persons entitled to recover join in the suit, those who do have a fiduciary
obligation to those do not. Miss. Code Ann. § 91-1-27 (Rev. 2004) provides
for a chancery determination of the heirs at law of a decedent; that is, those
who inherit in the absence of a will. Although our statutes mandate no
specific procedure for the identification of wrongful death beneficiaries, a
chancery court may make such determinations. Those bringing the action,
together with their counsel, have a duty to identify the beneficiaries, and they
should do so early in the proceedings.
6
A. Roshida (Delvyn’s Mother)
¶15. In her order determining Delvyn’s heirs at law and wrongful death beneficiaries, the
chancellor interpreted section 11-7-13 and ruled that Roshida and her daughter, Tina, were
the sole wrongful death beneficiaries and heirs at law of Delvyn.
¶16. The record reflects that Roshida was not married to Delvyn’s natural father at the time
of his birth. Accordingly, Delvyn would be considered an illegitimate child. Section 11-
7-13 provides that, as to the mother of an illegitimate child, “[t]he provisions of this section
shall apply . . . to the mother on account of the death of an illegitimate child . . . and they
shall have all the benefits, rights and remedies conferred by this section on legitimates.” We
therefore find that the chancellor properly determined Roshida to be a wrongful-death
beneficiary of Delvyn.
B. Tina (Delvyn’s Half Sister)
¶17. The Appellants challenge the chancellor’s finding that Tina was a wrongful death
beneficiary of Delvyn. The record reflects that the Appellants never raised this argument
before the chancellor, nor did they object to Tina’s status as a beneficiary. However, the
record further reflects that Roshida did not raise the issue of waiver on appeal.
¶18. Section 11-7-13 provides that the wrongful death beneficiaries are the brothers and
sisters “as the deceased may have living at his or her death.” Section 11-7-13 specifically
provides that “[t]here shall not be, in any case, a distinction between the kindred of the whole
and half blood of equal degree.” Delvyn was born on January 26, 2012, and he died on June
Accordingly, we find that the determination of wrongful-death beneficiaries was properly
before the chancellor.
7
2, 2012. At trial, Roshida testified that at the time of Delvyn’s death, she did not have any
other living children, nor was she pregnant.
¶19. On appeal, Roshida refutes the Appellants’ argument that her daughter Tina is not
entitled to wrongful death benefits. Roshida acknowledges that the record does not reflect
when Tina was conceived, but she maintains that “on about June 19, 2014, [Tina] was
approximately one year old.” The record shows that Delvyn died two years prior on June 2,
2012. At trial, Roshida did not claim that she was pregnant at the time of Delvyn’s death.
On appeal, Roshida’s counsel argues that “[t]he possibility still exists that [Tina] was
conceived before [Delvyn’s] death and [Roshida] was ignorant of such fact due to the
tumultuous circumstances surrounding the death of her infant child, Delvyn[.]” Roshida cites
to Fizer v. Davis (Estate of Davis), 706 So. 2d 244, 247 (¶13) (Miss. 1998), where the
supreme court held that “a preborn child who is viable at the time of a relative’s death and
is ultimately born alive, is ‘living’ such that he or she can be a wrongful death beneficiary
under the law.” Roshida argues that Tina “was possibly in existence” at the time of Delvyn’s
death, and, since Tina is living, she is entitled to wrongful death benefits. Contrary to
Roshida’s counsel’s claims now on appeal, Roshida did not testify at trial that she was
confused or ignorant regarding Tina’s conception. Roshida testified that she was not
pregnant at the time of Delvyn’s death. The record also shows that on June 19, 2014, more
than two years after Delvyn’s death, Tina was approximately one year old. Accordingly,
calculations show that Tina was not conceived or possibly in existence at the time of
Delvyn’s death on June 2, 2012.
8
¶20. In In re Estate of Davis, 706 So. 2d at 247 (¶13), the supreme court reviewed a
chancery court’s determination of whether an unborn fetus who was at six and one-half
months gestation at the time of his brother’s death could recover as a wrongful death
beneficiary within the meaning of section 11-7-13. The supreme court reversed the
chancellor’s determination and held that the facts of that case “clearly present a situation in
which the preborn child . . . was viable at the time of his brother’s death” and therefore it “is
among that class of persons defined as ‘living’ for purposes of the wrongful death statute
such that he is a beneficiary under the statute.” Id. at 245, 248 (¶¶1, 17). The appellants
submitted an affidavit from a doctor certified in the field of obstetrics and gynecology
wherein the doctor stated that Rico Davis, the preborn child at issue, “was approximately six
and one-half months gestation” on the day his brother died and estimated “that the
probabilities of Rico’s survival at that point would have been better than ninety-five percent.”
Id. at (¶15) (internal quotation mark omitted). The supreme court found that the appellee
failed to offer any medical evidence to refute the affidavit. Id. As a result, the supreme court
determined that “[t]he record evidence overwhelmingly suggests that Rico Davis reached the
prenatal age of viability when destruction of his mother’s life did not necessarily mean the
end of his life[]” and was therefore “living” at the time of his brother’s death. Id. at 248
(¶16) (citing Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434 (Miss. 1954); Terrell v. Rankin,
511 So. 2d 126 (Miss.1987)). However, the Davis court declined to address “whether the
law would allow recovery for an unborn previable child.” Id. at (¶17).
¶21. We find that the record before us contains no evidence to show that Tina was
9
conceived and viable, and therefore “living,” at the time of Delvyn’s death. Thus, under the
statute, Tina is not a wrongful death beneficiary. Accordingly, we reverse and render
regarding the chancellor’s finding that Tina was a wrongful death beneficiary and heir-at-law
of Delvyn.
C. Perkins (Delvyn’s Natural Father)
¶22. The chancellor ruled that Perkins failed to meet the statutory requirements to be
determined a wrongful death beneficiary or an heir-at-law under section 11-7-13 and
Mississippi Code Annotated section 91-1-15(3)(a)-(c) (Rev. 2013). As a result, Perkins was
not entitled to share in the proceeds from the wrongful death action.
¶23. The record indicates that genetic testing confirmed that Perkins was Delvyn’s natural
father. In order to recover wrongful death benefits, section 11-7-13 requires the father of an
illegitimate child to establish his right to inherit from the deceased pursuant to Mississippi
Code Annotated section 91-1-15, which provides:
An illegitimate shall inherit from and through the illegitimate’s natural father
and his kindred, and the natural father of an illegitimate and his kindred shall
inherit from and through the illegitimate according to the statutes of descent
and distribution if:
(a) The natural parents participated in a marriage ceremony before the birth
of the child . . . ; or
(b) There has been an adjudication of paternity or legitimacy before the
death of the intestate; or
(c) There has been an adjudication of paternity after the death of the
intestate, based upon clear and convincing evidence, in an heirship
proceeding under Sections 91-1-27 and 91-1-29. However, no such
claim of inheritance shall be recognized unless the action seeking an
adjudication of paternity is filed within one (1) year after the death of
10
the intestate or within ninety (90) days after the first publication of
notice to creditors to present their claims, whichever is less; and such
time period shall run notwithstanding the minority of a child. This one
year limitation shall be self-executing and may not be tolled for any
reason, including lack of notice . . . .
(d) The natural father of an illegitimate and his kindred shall not inherit:
(i) From or through the child unless the father has openly treated
the child as his, and has not refused or neglected to support the
child . . . .
¶24. It was undisputed that Perkins and Roshida were never married.4 The record contains
no adjudication of paternity or legitimacy before Delvyn’s death5 or after his death,6 because
the Alabama court set aside its prior adjudication of paternity.
¶25. In reviewing the requirements set forth in section 91-1-15(3)(d)(i), the record contains
no evidence to show that Perkins “openly treated the child as his, and has not refused or
neglected to support the child.” Rather, the evidence shows that Perkins never actually met
Delvyn or introduced Delvyn to his family. Perkins was not listed on Delvyn’s birth
certificate. Moreover, Perkins neglected to support Delvyn. He failed to provide food or
clothing for Delvyn and did not help with the birth expenses. When Roshida attempted to
obtain child support and social security benefits from Perkins, Perkins denied paternity and
challenged her efforts. Perkins did not inquire about Delvyn’s condition or offer to help with
Delvyn’s medical or funeral expenses. Instead, he allowed the paternity action against him
4
See Miss. Code Ann. § 91-1-15(3)(a).
5
See Miss. Code Ann. § 91-1-15(3)(b).
6
See Miss. Code Ann. § 91-1-15(3)(c).
11
to be dismissed. We agree with the chancellor’s determination that Perkins failed to establish
the requirements of section 91-1-15. We therefore find no error in the chancellor’s
determination Perkins could not recover wrongful death benefits from Delvyn.
D. Lisa, Kim, and Alan (Delvyn’s Half Siblings)
¶26. Regarding the status of Lisa, Kim, and Alan as wrongful death beneficiaries, the
chancellor held that “Perkins’s other children cannot recover wrongful death benefits through
the deceased child, Delvyn, because [Perkins] does not meet the requirements of section
91-1-15 (3)(a)-(c).” In her order, the chancellor explained:
The Mississippi Supreme Court has recognized the absolute necessity of
meeting the requirements of section 91-1-15 in order for a father and his
kindred to claim wrongful death benefits through a deceased illegitimate child.
In Estate of Patterson v. Patterson, [798 So. 3d 347 (Miss. 2001),] the
[supreme c]ourt held that, in an action to determine deceased illegitimate
child’s heirs at-law, [a] half-brother could not inherit because the father did not
meet statutory requirements to inherit. In [Jones v. McCoy (In re Estate of
McCoy)], 988 So. 2d 929 (Miss. Ct. App. 2008), the [Mississippi C]ourt [of
Appeals] reversed the chancellor’s finding that [the] biological father was [an]
heir-at-law because [the] father failed to show [his] right to inherit under
section 95-1-15(3). See also Williams v. Farmer, 876 So. 2d 300 (Miss. 2004).
[Section] 91-l-15(3)(d)(i) provides “the natural father of an illegitimate and his
kindred shall not inherit: (i) From or through the child unless the father has
openly treated the child as his, and has not refused or neglected to support the
child.”
¶27. As acknowledged by the chancellor, the Mississippi Supreme Court has established
that the natural father of an illegitimate child, as well as the father’s “kindred,” can inherit
under the wrongful death statute only if the father meets the requirements of section 91-1-15.
Patterson, 798 So. 3d at 350 (¶17) (“The wrongful death statute provides for illegitimates
to inherit, but that right is tied to [section] 91-1-15.”). In Patterson, the supreme court held
12
that a natural father and his living son (the decedent’s half-brother through his father) could
not recover wrongful death benefits from the decedent since the natural father failed “to
prove by clear and convincing evidence [that] not only was [he] was the biological father of
[the decedent], but also that he was entitled to inherit from [the decedent] as [an] heir-at-law
and as a wrongful death beneficiary.” Id. at (¶16); see also Bullock v. Thomas, 659 So. 2d
574, 578 (Miss. 1995) (affirming the chancellor’s judgment finding that a father failed to
meet the requirements of section 91-1-15 and therefore the father and his children could not
inherit from his illegitimate child).
¶28. In applying guidance from the supreme court, we find that the chancellor did not err
in determining that Perkins’s children, Lisa, Kim, and Alan, cannot recover wrongful death
benefits from Delvyn.
¶29. With regard to the issue of wrongful death beneficiaries, we affirm the chancellor’s
judgment as to Roshida, Perkins, Lisa, Kim, and Alan, and we reverse and render the
chancellor’s judgment as to Tina. Thus, Delvyn’s sole wrongful death beneficiary is Roshida,
and she is entitled to the settlement proceeds deriving from the wrongful death of Delvyn.
II. Constitutionality of the Wrongful Death Statute
¶30. The Appellants also argue that “[t]he [w]rongful [d]eath [s]tatute’s incorporation of
[s]ection 91-1-15(3) violates the . . . guarantee of equal protection under the laws.” The
Appellants cite to Justice McRae’s separate opinion in Patterson, 798 So. 2d at 351-52, in
support of their claim that section 91-1-15 “creates a hierarchy of rights” and “sets up a
classification which is biased and/or discriminates against illegitimate fathers and their
13
children, who are siblings with the decedent.”
¶31. The record reflects that on May 25, 2016, the Appellants filed a memorandum in the
chancery court responding to Roshida’s argument that Perkins, Lisa, Kim, and Alan failed
to meet the statutory requirements to receive wrongful death benefits from Delvyn. In this
memorandum, the Appellants challenged the constitutionality of section 11-7-13 as applied
to the natural father of an illegitimate child and the children of the natural father. In her
December 16, 2016 order determining the wrongful death beneficiaries, the chancellor did
not address the Appellants’ constitutional claim.
¶32. Mississippi Rule of Civil Procedure 24(d) “requires that proper notice be given to the
Attorney General when the constitutionality of a statute is challenged to afford him an
opportunity to intervene and argue the question of constitutionality.” Barnes v. Singing River
Hosp. Sys., 733 So. 2d 199, 202 (¶9) (Miss. 1999) (internal quotation mark omitted).
Mississippi Rule of Appellate Procedure 44(a) “similarly requires service of any appellate
brief challenging the validity of a statute on the Attorney General, the city attorney, or other
chief legal officer of the governmental body involved.” Id. (internal quotation mark
omitted). The Appellants provided the Attorney General with a copy of their appellate brief.
It appears that the Appellants have therefore complied with the requirements of Mississippi
Rule of Appellate Procedure 44(a).
¶33. However, the record reflects that the Appellants failed to provide the Attorney General
with notice of their constitutional challenge at the trial level. The record shows that the
Appellants first notified the Attorney General of their challenge to the constitutionality of the
14
statute in their notice of appeal. We thus find that the Appellants have not complied with the
requirements of Mississippi Rule of Civil Procedure 24(d). This Court has held that “parties
challenging the constitutionality of a statute must notify the Attorney General under
Mississippi Rule of Civil Procedure 24(d).” Brown v. Waldron, 186 So. 3d 955, 961 (¶19)
(Miss. Ct. App. 2016). The supreme court has procedurally barred challenges to the
constitutionality of a statute where an appellant has failed to comply with the notice
requirements of Mississippi Rule of Civil Procedure 24(d). Powers v. Tiebauer, 939 So. 2d
749, 754-55 (¶17) (Miss. 2005); In re D.O., 798 So. 2d 417, 423 (¶22) (Miss. 2001); Pickens
v. Donaldson, 748 So. 2d 684, 691 (¶31) (Miss. 1999); see also 5K Farms, Inc. v. Miss. Dep’t
of Revenue, 94 So. 3d 221, 224 (¶12) (Miss. 2012).
¶34. Since the Appellants failed to provide notice to the Attorney General pursuant to
Mississippi Rule of Civil Procedure 24(d) regarding their challenge to the constitutionality
of the wrongful death statute’s incorporation of section 91-1-15(3), we find the issue
procedurally barred, and we decline to address it.
III. Doctrine of Unclean Hands
¶35. Finally, Perkins claims that Roshida failed to give him notice of the wrongful death
action against UMMC. As a result, Perkins claims “Roshida has unclean hands and . . .
should not now be allowed to benefit from her willful breach of her fiduciary duties.”
¶36. “The doctrine of unclean hands provides that he who comes into equity must come
with clean hands.” In re Estate of Richardson, 903 So. 2d 51, 55 (¶15) (Miss. 2005) (internal
quotation marks omitted) (citing Thigpen v. Kennedy, 238 So. 2d 744, 746 (Miss. 1970)).
15
The supreme court has “further expounded upon the meaning of unclean hands, stating: the
meaning of this maxim is to declare that no person as a complaining party can have the aid
of a court of equity when his conduct with respect to the transaction in question has been
characterized by wilful inequity.” Id. (internal quotation mark omitted). A chancellor
possesses a duty to apply this doctrine sua sponte “when it is evident by the facts of the case
that the unclean hands doctrine is applicable.” Estate of Van Ryan v. McMurtray, 505 So.
2d 1015, 1019 (Miss. 1987).
¶37. In turning to the case before us, we recognize that “[a] wrongful death beneficiary
may bring suit with or without the knowledge and agreement of the remaining beneficiaries
or estate representative.” Willing v. Estate of Benz, 958 So. 2d 1240, 1256 (¶44) (Miss. Ct.
App. 2007) (citing Long v. McKinney, 897 So. 2d 160, 176 (¶68) (Miss. 2004)). However,
the representative beneficiary must provide reasonable notice “(i) to all other wrongful death
beneficiaries; (ii) to the personal representative of the decedent if one has been appointed;
and (iii) to each person who bears a relationship to the deceased specified in section
11-7-13.” Long, 897 So. 2d at 176 (¶68).
¶38. Roshida admits she did not give Perkins notice of the wrongful death action against
UMMC. However, we do not find Roshida’s failure to give notice amounts to a “willful act
. . . which . . . transgress[ed] equitable standards of conduct.” Roshida and Perkins were
never married, Perkins consistently denied paternity, and Perkins failed to meet the statutory
requirements to constitute a wrongful death beneficiary of Delvyn. See Miss. Code Ann.
§§ 11-7-13, 91-1-15.
16
¶39. We find the doctrine of unclean hands is inapplicable under the facts of this case.
Accordingly, the Appellants’ claim is without merit.
¶40. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
BARNES, J., CONCURS. IRVING, P.J., FAIR, GREENLEE AND TINDELL,
JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION. LEE, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION. WILSON, J., CONCURS IN PART AND IN THE RESULT
WITH SEPARATE WRITTEN OPINION, JOINED BY FAIR, J.; LEE, C.J.,
GREENLEE AND TINDELL, JJ., JOIN IN PART. WESTBROOKS, J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.
GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN
PART BY WESTBROOKS AND TINDELL, JJ.
WILSON, J., CONCURRING IN PART AND IN RESULT:
¶41. I reach the same result as the lead opinion but for somewhat different reasons. First,
I concur with the lead opinion that, based on Mississippi Supreme Court precedent applying
our wrongful death statute, Lisa, Kim, and Alan are not among Delvyn’s wrongful death
beneficiaries.7 I agree with Judge Griffis that they seem to qualify as beneficiaries under the
plain language of the wrongful death statute, but we are bound by Mississippi Supreme Court
precedent even if it is wrongly decided. Second, I disagree with the lead opinion’s finding
7
I also concur with the lead opinion that Perkins and Tina are not among Delvyn’s
wrongful death beneficiaries. As to Tina, the only evidence in the record shows that she was
not conceived until after Delvyn’s death. In a pleading filed on June 19, 2014—i.e., more
than two years after Delvyn died—Nelson stated that Tina was then “approximately 1 year
old.” More important, Nelson specifically testified that she was not pregnant when Delvyn
died. There is no record evidence that conflicts with Nelson’s sworn testimony. Therefore,
the only record evidence shows that Tina was not living at the time of Delvyn’s death. See
In re Estate of Davis, 706 So. 2d 244, 248-50 (¶¶22-28) (Miss. 1998) (Mills, J., specially
concurring) (concluding that a nonviable unborn child is “living” for purposes of the
wrongful death statute); Childs v. Gen. Motors Corp., 73 F. Supp. 2d 669, 674-75 (N.D.
Miss. 1999) (same).
17
that the appellants waived their constitutional challenge. Third, I would address the
appellants’ constitutional challenge on the merits and hold that the wrongful death statute is
constitutional as applied to them. Fourth, although Nelson has not raised the issue, I cannot
ignore that there is no credible evidence in the record that Lisa, Kim, and Alan are Delvyn’s
paternal half-siblings. This lack of evidence would require us to reverse and remand for
further proceedings if the factual issue remained material to the outcome of the case.
However, the issue is moot in light of our conclusion that Lisa, Kim, and Alan are not
Delvyn’s wrongful death beneficiaries even assuming that they are his half-siblings. I
address these four issues in turn below.
I. The Wrongful Death Statute
¶42. If we were writing on a clean slate, I would agree with Judge Griffis’s interpretation
of the wrongful death statute. The statute clearly states: “There shall not be, in any case, a
distinction between the kindred of the whole and half blood of equal degree.” Miss. Code
Ann. § 11-7-13 (Rev. 2004). It also provides that when, as in this case, the deceased has no
spouse or children, “damages shall be distributed equally to the father, mother, brothers and
sisters.” Id. Thus, absent some exclusion, Perkins, Lisa, Kim, and Alan all qualify as
wrongful death beneficiaries of Delvyn.
¶43. However, the statute goes on to state: “The provisions of this section shall apply to
. . . the natural father on account of the death of [an] illegitimate child . . . , and [he] shall
have all the benefits, rights and remedies conferred by this section . . . , if [he] has or
establishes the right to inherit from the deceased under Section 91-1-15.” Id. In this case,
18
Perkins clearly failed to establish his right to inherit under section 91-1-15 because there was
no valid adjudication of paternity, he did not openly treat Delvyn as his own, and he failed
to support Delvyn. See Miss. Code Ann. § 91-1-15(3) (Rev. 2013). Therefore, under the
plain language of the wrongful death statute, Perkins is not entitled to “the benefits, rights,
and remedies conferred by [the wrongful death statute].” Miss. Code Ann. § 11-7-13.
¶44. In addition, because Perkins failed to satisfy the requirements of section 91-1-15, “his
kindred” (Lisa, Kim, and Alan) “shall not inherit” from Delvyn—i.e., they are not among
Delvyn’s heirs at law. Miss. Code Ann. § 91-1-15(3)(d) (emphasis added). However, “[a]
wrongful death action is a separate action from the estate of the deceased.” Estate of Smith
v. Smith ex rel. Rollins, 130 So. 3d 508, 514 (¶16) (Miss. 2014) (quoting Ray v. Ray, 963 So.
2d 20, 26 (¶14) (Miss. Ct. App. 2007)). “[T]herefore, the beneficiaries of a wrongful death
action for the death of the decedent may differ from the heirs of the intestate’s estate.” Id.
And I agree with Judge Griffis that nothing in section 11-7-13 excludes Lisa, Kim, or Alan
from the class of Delvyn’s wrongful death beneficiaries.
¶45. Thus, Lisa, Kim, and Alan appear to qualify as wrongful death beneficiaries under the
plain language of the wrongful death statute. Ordinarily, “if the words of a statute are clear
and unambiguous,” we simply apply “the plain meaning of the statute.” Lawson v.
Honeywell Int’l Inc., 75 So. 3d 1024, 1027 (¶7) (Miss. 2011). However, we are bound to
follow Mississippi Supreme Court precedent.8 The Supreme Court’s opinion in Estate of
8
See, e.g., Cahn v. Copac Inc., 198 So. 3d 347, 358 (¶35) (Miss. Ct. App. 2015)
(“[T]his Court does not have the authority to overrule or ignore [S]upreme [C]ourt
precedent.”); Rivera-Guadiana v. State, 71 So. 3d 1221, 1224 (¶14) (Miss. Ct. App. 2011)
(“[W]e must follow [S]upreme [C]ourt precedent . . . .”).
19
Patterson v. Patterson, 798 So. 2d 347 (Miss. 2001), is confusing, and it is not entirely clear
what issues the Court actually decided in that case. However, I agree with the lead opinion
that Patterson seems to hold that a natural father’s failure to satisfy the requirements of
section 91-1-15 not only disqualifies the natural father from recovering as a wrongful death
beneficiary but also disqualifies any half-siblings through the natural father. Accordingly,
I concur in the lead opinion’s resolution of this issue.
II. Waiver
¶46. The lead opinion acknowledges that the appellants complied with Mississippi Rule
of Appellate Procedure 44(a) by serving copies of their appellate briefs, which clearly set out
the constitutional issues raised, on the Attorney General. The lead opinion also
acknowledges that the appellants challenged the constitutionality of section 11-7-13 in the
memorandum of law that they filed in the chancery court. Nonetheless, the lead opinion
finds that the appellants’ constitutional arguments are “procedurally barred” because the
appellants did not comply with Mississippi Rule of Civil Procedure 24(d) by notifying the
Attorney General in the chancery court. Ante at ¶¶33-34. I disagree.
¶47. To begin with, no one has argued that the issue is procedurally barred. After the
appellants served their opening brief on the Attorney General as required by Rule 44(a), the
State did not exercise its right to respond under Rule 44(b). M.R.A.P. 44(b). In addition, the
appellees addressed the merits of the appellants’ constitutional arguments and have not
argued that those issues are waived or procedurally barred. See Thornton v. Freeman, 242
So. 3d 188, 190 (¶3) (Miss. Ct. App. 2018) (noting that the issue of “waiver . . . can itself be
20
waived”). Finally, the constitutional issues were debated extensively during oral argument
in this Court, and no one suggested that the issues were waived or procedurally barred.
Under these circumstances, there is no reason for this Court to raise the issue sua sponte.
¶48. More important, by its terms, Rule 24(d) does not apply to this case. Rule 24(d) only
requires notice to the Attorney General
[i]n any action (1) to restrain or enjoin the enforcement, operation, or
execution of any statute of the State of Mississippi by restraining or enjoining
the action of any officer of the State or any political subdivision thereof, or the
action of any agency, board, or commission acting under state law, in which
a claim is asserted that the statute under which the action sought to be
restrained or enjoined is to be taken is unconstitutional, or (2) for declaratory
relief brought pursuant to Rule 57 in which a declaration or adjudication of the
unconstitutionality of any statute of the State of Mississippi is among the relief
requested . . . .
M.R.C.P. 24(d). The appellants do not seek to restrain or enjoin the action of any state
“officer” or any “agency, board, or commission acting under state law.” Nor is this an action
for “declaratory relief” under Rule 57. It is a proceeding to determine heirs involving only
private parties. By its plain terms, Rule 24(d) does not apply in this case.9
¶49. The cases that the lead opinion cites (ante at ¶33) are materially distinguishable. In
each of those cases, the party challenging the constitutionality of the statute failed to raise
the issue in the trial court and/or failed to comply with Rule 44(a) on appeal.10 Here, as the
9
The scope of Rule 24(d) is narrower than Rule 44(a), which applies in any appeal
in which “the validity of any statute . . . is raised in the Supreme Court or the Court of
Appeals.” M.R.A.P. 44(a).
10
See 5K Farms Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 224-26 (¶¶10-20)
(Miss. 2012) (appellants failed to challenge the constitutionality of the statute in the trial
court and failed to comply with Rule 44(a) on appeal); Powers v. Tiebauer, 939 So. 2d 749,
752-55 (¶¶8-17) (Miss. 2005) (appellants failed to challenge the constitutionality of the
21
lead opinion acknowledges, the appellants both challenged the constitutionality of the statute
in the trial court and complied with Rule 44(a) on appeal. This was sufficient to preserve the
issue.
¶50. The lead opinion would hold, sua sponte, that the appellants’ constitutional arguments
are “procedurally barred” because they did not serve notice on the Attorney General in the
trial court. However, the plain language of Rule 24(d) did not require notice in the trial
court, and such notice probably would not have made any difference given that the Attorney
General has not participated even after receiving notice on appeal. I respectfully disagree
with the lead opinion’s sua sponte invocation of an inapplicable procedural bar.
III. Equal Protection
A. Perkins
¶51. Perkins argues that section 11-7-13 denies fathers of illegitimate children the right to
equal protection of the laws. Specifically, he argues that the law unfairly discriminates
against men because “the mother has to do nothing to inherit from the child” while the father
must comply with the requirements of section 91-1-15. Estate of Patterson, 798 So. 2d at
351 (¶21) (McRae, J., specially concurring).
¶52. Perkins’s argument ignores the mother’s “unique role in childbirth” and “unique
efforts in carrying a child to term.” Rainey v. Chever, 119 S. Ct. 2411, 2413 (1999)
statute in the trial court); In re D.O., 798 So. 2d 417, 423 (¶21) (Miss. 2001) (appellants
failed to challenge the constitutionality of the statute in the trial court and failed to comply
with Rule 44(a) on appeal); Pickens v. Donaldson, 748 So. 2d 684, 691 (¶31) (Miss. 1999)
(same); Brown v. Waldron, 186 So. 3d 955, 961 (¶19) (Miss. Ct. App. 2016) (appellants
failed to comply with Rule 44(a) on appeal).
22
(Thomas, J., dissenting from the denial of certiorari). Even if it served no other purpose,
section 11-7-13 recognizes a valid distinction between a parent like Nelson, who chooses to
carry her unborn child to term, and a parent like Perkins, who neglects the child and refuses
to treat the child as his own even after the child’s birth. Id.
¶53. Laws that recognize “inherent differences” between men and women are not per se
unconstitutional. United States v. Virginia, 518 U.S. 515, 533 (1996). “[S]uch
classifications may not be used, as they once were, to create or perpetuate the legal, social,
and economic inferiority of women.” Id. at 534 (citation omitted). Obviously, that is not
what this law does. There may be additional justifications for the distinction that section 11-
7-13 draws between mothers and fathers. However, I would hold that it is constitutional as
applied to Perkins for the reasons given in Justice Thomas’s opinion in Rainey, supra.
B. Lisa, Kim, and Alan
¶54. The constitutional issue is more complicated with respect to Lisa, Kim, and Alan. It
would be unjust and unconstitutional to exclude them from the wrongful death recovery
solely as a punishment for their father’s failure to satisfy section 91-1-15. See Trimble v.
Gordon, 430 U.S. 762, 769-70 (1977); Estate of McCullough v. Yates, 32 So. 3d 403, 412-13
(¶31) (Miss. 2010). However, the law may be justified based on other legitimate state
interests. See In re Estate of Kimble, 447 So. 2d 1278, 1283 (Miss. 1984).
¶55. Lisa, Kim, and Alan argue that the wrongful death statute “discriminates against the
paternal siblings of the decedent on the bases [sic] of the decedent’s illegitimacy” (emphasis
added). To the extent that they argue that the statute unconstitutionally discriminates based
23
on Delvyn’s illegitimacy, they are alleging a violation of Delvyn’s constitutional rights rather
than their own.11 Such a claim is inconsistent with the general rule that a “plaintiff . . . must
assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights
or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). “Ordinarily, one
may not claim standing . . . to vindicate the constitutional rights of some third party.”
Barrows v. Jackson, 346 U.S. 249, 255 (1953).
¶56. There are exceptions to the general rule against third-party standing, but only when
“the party asserting the right has a close relationship with the person who possesses the right
and there is a hindrance to the possessor’s ability to protect his own interests.” Sessions v.
Morales-Santana, 137 S. Ct. 1678, 1689 (2017) (brackets omitted). In this case, there is an
obvious “hindrance” to any decedent’s “ability” to challenge the wrongful death statute’s
alleged violation of the decedent’s constitutional rights. However, it is far less clear that
paternal half-siblings’ relationship to the decedent should enable them to litigate the
decedent’s constitutional rights. As the Supreme Court has recognized, in some cases,
“holders of [constitutional] rights” may “not wish to assert them.” Singleton v. Wulff, 428
U.S. 106, 113-14 (1976). Indeed, a “good and sufficient reason[]” for denying third-party
standing is “the avoidance of the adjudication of rights which those not before the Court may
not wish to assert.” Duke Power Co. v. Carolina Envtl. Study Grp. Inc., 438 U.S. 59, 80
(1978). Therefore, before granting third-party standing, “courts must be sure . . . that the
litigant and the person whose rights he asserts have interests which are aligned.” Canfield
11
Under the wrongful death statute, it is irrelevant whether Lisa, Kim, and Alan are
illegitimate or born of a marriage.
24
Aviation Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988); accord, e.g.,
Pony v. Cty. of Los Angeles, 433 F.3d 1138, 1147-48 (9th Cir. 2006); see also Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004) (declining to grant third-party standing
to a parent when “the interests of this parent and this child are not parallel and, indeed, are
potentially in conflict”), abrogated on other grounds by Lexmark Int’l Inc. v. Static Control
Components Inc., 134 S. Ct. 1377, 1387 (2014).
¶57. We can hardly “be sure” that a decedent’s interests will be aligned with the interests
of his half-siblings just because they shared a father—indeed, a father who refused to treat
the decedent as his own. Nor can we know whether a decedent would feel discriminated
against or “wish to assert” an equal protection claim in this situation. The alleged
“discrimination” does not appear to be based on any animus against illegitimate children.
In essence, the alleged discrimination against the illegitimate decedent is this:
Illegitimate Decedent Legitimate Decedent
Paternal half-siblings are entitled to a Paternal half-siblings are entitled to a
share of any wrongful death recovery if share of any wrongful death recovery.
their father satisfies certain conditions.
If the decedent is married and/or has children, all wrongful death damages are distributed to
his or her spouse and/or children; thus, this distinction comes into play only if the illegitimate
decedent dies without a spouse or children. See Miss. Code Ann. § 11-7-13. Moreover, the
distinction does not affect the total amount of wrongful death damages. It only means that
the wrongful death recovery for a legitimate decedent may be divided among a larger group
of relatives than the recovery for an otherwise similarly situated illegitimate decedent. We
25
cannot say that all or most illegitimate decedents in this situation would feel aggrieved or
unfairly discriminated against by the statute. Nor can we say that all or most illegitimate
decedents would want their wrongful death damages to be divided among half-siblings
through a father who refused to recognize the decedent during the decedent’s lifetime.
Finally, in this case, Delvyn passed away when he was only five months old, so there is no
way to know whether Delvyn personally would have wished to assert such a claim.
¶58. For all these reasons, we cannot “be sure” that Lisa’s, Kim’s, and Alan’s interests “are
aligned” with Delvyn’s interests. Canfield Aviation, 854 F.2d at 748. And this may not be
a right or a claim that Delvyn would “wish to assert.” Duke Power, 438 U.S. at 80;
Singleton, 428 U.S. at 113-14. Accordingly, I would not grant Lisa, Kim, and Alan third-
party standing to assert constitutional claims on behalf of Delvyn.
¶59. Although Lisa, Kim, and Alan lack standing to assert Delvyn’s rights, they may still
assert claims based on their own rights. See Miller v. Albright, 523 U.S. 420, 451 (1998)
(O’Connor, J., concurring in the judgment). However, the wrongful death statute “does not
draw a distinction based on the gender” or illegitimacy of the wrongful death beneficiaries.
Id. Therefore, claims based on Lisa’s, Kim’s, and Alan’s own rights “trigger[] only rational
basis scrutiny.” Id.
¶60. Under rational basis scrutiny, a statutory classification “must be upheld if there is any
conceivable state of facts that could provide a rational basis for the classification.” Heller
v. Doe, 509 U.S. 312, 320 (1993) (quoting FCC v. Beach Commc’ns Inc., 508 U.S. 307, 313
(1993)). A rational basis may consist entirely of “rational speculation unsupported by
26
evidence or empirical data,” id. (quoting Beach Commc’ns, 508 U.S. at 315), and “courts are
compelled under rational-basis review to accept a legislature’s generalizations even when
there is an imperfect fit between means and ends,” id. at 321.
¶61. Applying this deferential standard of review, the United States Supreme Court and the
Mississippi Supreme Court have held that similar statutory requirements are at least
rationally related to legitimate state interests such as avoiding litigation of stale or fraudulent
claims. See, e.g., Lalli v. Lalli, 439 U.S. 259, 268-76 (1978) (plurality opinion); Estate of
McCullough, 32 So. 3d at 414 (¶35); Estate of Kimble, 447 So. 2d at 1283. As noted above,
under rational basis scrutiny, a legislative classification must be upheld as long as it is
rationally related to a legitimate state interest, even if it is based on “generalizations” and the
“fit between means and ends” is “imperfect.” Heller, 509 U.S. at 320. Based on these
precedents, I would reach the same conclusion in this case and hold that the wrongful death
statute is constitutional.
IV. Evidence Regarding Lisa, Kim, and Alan
¶62. I cannot ignore one final problem with the appellants’ case. The appellants’ brief on
appeal asserts that “there is no dispute that [Lisa, Kim, and Alan] are Robert’s natural
children, and thus, half-siblings to Baby Delvyn, who were living at the time of Baby
Delvyn’s death.” In support of this claim, the appellants cite to a passage in Nelson’s
testimony on cross-examination. In the cited testimony, the appellants’ attorney questioned
Nelson about only two of the three children:
Q Do you dispute that [Kim and Lisa] are Robert Perkins’ natural
children?
27
A I mean, I don’t really know them. I know them through Keyona. You
know, she have brought them around me maybe once or twice, but I
don’t know them. Atlay Phillips is the neighbor of my sister; Sheretta
Nelson, who lives with Michael Cosby. So, I mean, if they’re his kids,
you know, I have no proof that they’re his kids.
Q And you don’t contest that they are, correct?
A Well, I don’t.
Q You don’t contest that they’re his children if it were established?
A Well, from what I hear, yeah, they’re his kids.
¶63. The only testimony about the third child (Alan) was as follows:
Q Okay. Isn’t it true that you told Nykeshia Green that you didn’t know
who Delvyn’s father was?
A I don’t know a Nykeshia Green.
Q Do you know [Alan]?
A No, I don’t.
Q Okay. You don’t know that to be Robert Perkins’ son?
A No, I don’t.
¶64. Thus, in context, Nelson merely testified that she had “no proof” that Kim and Lisa
were Perkins’s children, although she had “hear[d]” that they were. Nelson did not even
know Alan. Nelson was the only witness who testified in the chancery court, and there is no
other evidence in the record concerning these children. Neither Perkins, nor the children, nor
the children’s mothers testified. It does not appear that they even attended the hearing. Nor
did they submit birth certificates, DNA tests, or any other proof of paternity. Indeed, there
is no evidence in the record that Alan exists, let alone that he is Delvyn’s half-brother.
28
¶65. In In re Estate of Richardson, 695 So. 2d 587 (Miss. 1997), “the chancellor entered
an order finding that certain persons were Richardson’s illegitimate children and therefore
also his legal heirs” and wrongful death beneficiaries. Id. at 588. However, “there [was] no
record that a formal hearing was ever held or that any interested party gave testimony or
offered proof of paternity.” Id. at 589. On appeal, our Supreme Court emphasized that “[i]n
order to be declared heirs, the illegitimate children of . . . Richardson are required to establish
paternity by clear and convincing evidence.” Id. The Supreme Court further held that “[t]he
chancellor erred in failing to hold [a formal] hearing” on that issue, and the Court reversed
and remanded “for the purpose of conducting a formal hearing to determine the heirs of . . .
Richardson.” Id.
¶66. This case is different from Richardson in that a formal hearing was held; however, it
is similar to Richardson in that there was no “proof of paternity.” There is literally no
evidence pertaining to Alan, and there is only Nelson’s testimony about what she had
“hear[d]” about Lisa and Kim. If this factual issue was still material to the outcome of the
case, I would reverse and remand for a hearing on the issue, as the Supreme Court did in
Richardson. However, I concur with the lead opinion that Lisa, Kim, and Alan do not
qualify as wrongful death beneficiaries even assuming that they are Delvyn’s half-siblings.
Therefore, this factual issue is moot.
* * * * *
¶67. For the foregoing reasons, I concur in part and in the result.
FAIR, J., JOINS THIS OPINION. LEE, C.J., GREENLEE AND TINDELL, JJ.,
JOIN THIS OPINION IN PART.
29
WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:
¶68. I agree in part with the lead opinion. I also agree with Judge Griffis’s determination
that Perkins’s other children should recover as wrongful death beneficiaries. I write
separately because I am of the opinion that the appellants’ failure to object or file a motion
under Mississippi Rule of Civil Procedure 59 in the trial court is problematic and presents
a high hurdle that they cannot clear simply by appealing that issue to this Court.
Accordingly, the appellants are procedurally barred from asserting their claim against the
chancellor’s determination of Tina as a wrongful death beneficiary, and the chancellor did
not err.
¶69. In the proceeding held on December 2014, Roshida’s prayer of relief was that the
chancellor would find that both she and her daughter Tina were wrongful death beneficiaries.
The lead opinion acknowledges that the appellants neither raised this argument before the
chancellor, nor did they object.12 Ante at ¶17. The record is also void of a Rule 59 motion
filed by the appellants. Accordingly, I would find that the appellants waived their right to
challenge the chancellor’s determination because:
[T]his Court does not review matters on appeal that were not first raised at the
trial level. Before an issue can be presented to this Court, it must first be
presented to the trial court. This is done by an objection. A timely objection
brings the issue to the court’s attention, and gives it the opportunity to address
the issue.
Wilburn v. Wilburn, 991 So. 2d 1185, 1191 (¶13) (Miss. 2008). Because the appellants
waived the issue before the chancellor, this Court should not even address whether Roshida
12
The lead opinion also notes that Roshida did not raise the issue of waiver on
appeal.
30
raised the issue of “waiver” on appeal.
¶70. Accordingly, I would find no error in the chancellor’s finding that Tina was “living”
at the time of Delvyn’s death.
¶71. Therefore, I respectfully dissent in part.
GRIFFIS, P.J., DISSENTING:
¶72. Mississippi Code Annotated section 11-7-13 (Rev. 2004) is the sole controlling
authority to determine who is entitled to take the proceeds from a wrongful death action.
¶73. The lead opinion makes two conclusions that I find are fundamentally flawed. First,
the lead opinion agrees that “Perkins’s other children cannot recover wrongful death benefits
through the deceased child, Delvyn, because Perkins does not meet the requirements of
section 91-1-15 (3)(a)-(c).” Ante at ¶26. Second, the lead opinion concludes:
As acknowledged by the chancellor, the Mississippi Supreme Court has
established that the natural father of an illegitimate child, as well as the
father’s “kindred,” can inherit under the wrongful death statute only if the
father meets the requirements of section 91-1-15. Patterson, 798 So. 3d at 350
(¶17) (“The wrongful death statute provides for illegitimates to inherit, but that
right is tied to [section] 91-1-15.”).
Ante at ¶27.
¶74. Neither of these conclusions are supported by section 11-7-13. Instead, the chancellor
and the lead opinion rely on Patterson. The question is whether the decision in Patterson
should govern this case, when it is contrary to the clear and unambiguous language of section
11-7-13.
¶75. Every wrongful death case, and the consideration of section 11-7-13, must start with
Long v. McKinney, 897 So. 2d 160 (Miss. 2004). There, the supreme court criticized its
31
earlier decisions in wrongful death cases, which included Patterson, and ruled:
No area of the law has historically provided more muddled, misquoted and
misunderstood procedural rules, than civil claims for wrongful death. The
blame for the perennial scrap over the rules can be traced to at least two
sources.
First, although the issue has been debated, the American judiciary – federal
and state – has failed to squarely address the question of whether substantive
claims for wrongful death originated in the common law, rendering them
subject to substantial judicial discretion; or are creatures of statute, requiring
strict, statutory construction.
Secondly, it appears that in the waning years of the Nineteenth Century, our
own wrongful death statute (the “Statute”) took a wrong turn into procedural
territory where it had no license to travel. When one branch of government
(well-intentioned though it may be) crosses the line into the purview of
another, the balance of powers necessary for efficient and effective
government is upset. So it was with the Statute. As a result, this Court has,
for over a century, attempted to provide procedural guidance mislabeled as
statutory interpretation; much like attempting to place a square peg into a
round hole. Consequently, little progress has been made in settling many
troubling issues related to wrongful death litigation. The same issues and
problems continually appear, and have been addressed on an ad hoc basis,
leaving little in the way of dependable precedent.
Id. at 162-63 (¶¶1-3) (emphasis added). The court then used Long as “an opportunity to
address and clarify several of these problems, and to provide guidance for these issues to the
bar and judiciary.” Id. at (¶4).
¶76. Here, the issue addressed was not an issue addressed in Long. But, like Long, this
case considers an issue that was previously “muddled, misquoted and misunderstood.” Id.
at (¶1). Indeed, this case is an opportunity to deal with one of those “troubling issues related
to wrongful death litigation.” Id. at (¶3). I urge the supreme court to look closely at this
case and provide “dependable precedent.” Id.
32
¶77. Any review of section 11-7-13 begins with the supreme court’s long held admonition
that, “[o]n appellate review, we strictly construe Mississippi’s wrongful death statute.”
Pannell v. Guess, 671 So. 2d 1310, 1313 (Miss. 1996) (emphasis added).
¶78. The language of section 11-7-13 determines who may take the proceeds of a wrongful
death action:
[I]f the deceased has no husband, nor wife, nor children, the damages shall be
distributed equally to the father, mother, brothers and sisters, or such of them
as the deceased may have living at his or her death. . . . There shall not be, in
any case, a distinction between the kindred of the whole and half blood of
equal degree. The provisions of this section shall apply . . . to the mother on
account of the death of an illegitimate child . . . , and they shall have all the
benefits, rights and remedies conferred by this section on legitimates. The
provisions of this section shall apply . . . to the natural father on account of the
death of the illegitimate child . . . , and they shall have all the benefits, rights
and remedies conferred by this section on legitimates, if the survivor has or
establishes the right to inherit from the deceased under Section 91-1-15.
(Emphasis added).
¶79. Because Delvyn had “no husband, nor wife, nor children,” section 11-7-13 provides
that “the damages shall be distributed equally to [Delvyn’s] father, mother, brothers and
sisters, or such of them as the deceased may have living at his or her death.” This sentence
gives Delvyn’s “brothers and sisters” – Lisa, Kim and Alan – equal right to the wrongful
death damages as Delvyn’s mother and father.
I. Mother
¶80. Roshida Nelson, as Delvyn’s mother, is certainly a wrongful death beneficiary under
section 11-7-13.
II. Father
33
¶81. Robert Perkins, as Delvyn’s father, may be a wrongful death beneficiary. For Robert
Perkins to take as a wrongful death beneficiary, section 11-7-13 says that:
The provisions of this section shall apply . . . to the natural father on account
of the death of the illegitimate child . . . , and they shall have all the benefits,
rights and remedies conferred by this section on legitimates, if the survivor
has or establishes the right to inherit from the deceased under Section
91-1-15.
(Emphasis added).
¶82. Section 11-7-13 specifically incorporates section 91-1-15, but only in the analysis of
the “natural father.” It clearly says that “the provisions of this section shall apply . . . to the
natural father on account of the death of the illegitimate child . . . if the survivor has or
establishes the right to inherit from the deceased under Section 91-1-15.” (Emphasis added).
This sentence only applies to Perkins, as Delvyn’s natural father. This sentence in section
11-7-13 cannot be read to require section 91-1-15 be applied to anyone but Delvyn’s natural
father. This sentence simply does not apply to Delvyn’s mother or his brothers and sisters.
¶83. Section 11-7-13 says that, for Perkins to be a wrongful death beneficiary as Delvyn’s
father, Perkins must also show that he has acted in a socially responsible manner. Thus, as
the natural father of an illegitimate child, Perkins must establish that he can “establish[] the
right to inherit from the deceased under Section 91-1-15.”
¶84. Section 91-1-15 deals with the right to inherit from illegitimate children. It is in the
title on “Trusts and Estates,” the chapter on “Descent and Distribution,” and is titled
“Descent among illegitimates; definitions.” If section 11-7-13 was intended to be interpreted
as the lead opinion has, the legislature could have simply incorporated the laws of descent
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and distribution to establish the wrongful death beneficiaries in a wrongful death action.13
This is not what the legislature did. It is important that the Legislature, in section 11-7-13,
chose not to treat the “kindred” of the natural father the same as it did in 91-1-15(3)(d)(i).
¶85. Section 11-7-13 requires that the decedent’s “natural father” be subject to an analysis
of the right of inheritance under section 91-1-15. As a result, section 11-7-13 “addresses the
inequity of a natural father of an illegitimate child benefitting from a wrongful-death action
when he has failed to acknowledge and support his child.” LePori v. Welch, 93 So. 3d 66,
69 (¶9) (Miss. Ct. App. 2012).
¶86. I concur with the determination that, under section 11-7-13, the chancellor correctly
considered Perkins’s right to inherit from Delvyn under section 91-1-15. I agree that Perkins
is not a proper wrongful death beneficiary of Delvyn under section 11-7-13.
III. Siblings
¶87. Section 11-7-13 requires that Delvyn’s half siblings are his wrongful death
beneficiaries. Because Lisa, Kim, and Alan share a biological father, they are Delvyn’s half
siblings.
¶88. Section 11-7-13 requires that Delvyn’s wrongful death damages “shall be distributed
equally to the father, mother, brothers and sisters, or such of them as the deceased may have
living at his or her death.” (Emphasis added). The next sentence provides that “[t]here shall
not be, in any case, a distinction between the kindred of the whole and half blood of equal
13
For example, section 91-1-15(3)(d)(i) provides that “The natural father of an
illegitimate and his kindred shall not inherit: From or through the child unless the father has
openly treated the child as his, and has not refused or neglected to support the child . . . .”
(Emphasis added).
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degree.” Miss. Code Ann. § 11-7-13. Thus, Lisa, Kim, and Alan are required by the
wrongful death statute to be treated no differently than Delvyn’s mother.
¶89. The lead opinion affirms the chancellor’s ruling that “Perkins’s other children cannot
recover wrongful death benefits through the deceased child, Delvyn, because [Perkins] does
not meet the requirements of section 91-1-15 (3)(a)-(c).” There is simply no authority in
section 11-7-13 to support this conclusion.
¶90. Here, Lisa, Kim, and Alan have been excluded as Delvyn’s wrongful death
beneficiaries simply because Perkins was excluded under section 91-1-15. Although there
is specific statutory language that says Delvyn’s natural father may be excluded pursuant to
section 91-1-15, there is no language that would exclude Delvyn’s siblings.
¶91. Lisa, Kim, and Alan are “half blood” siblings of Delvyn. Thus, they are Delvyn’s
statutory wrongful death beneficiaries as Delvyn’s “brothers and sisters.” They obtained the
status as his wrongful death beneficiaries due to their blood relationship with Delvyn.
Section 11-7-13 clearly and specifically provides that “[t]here shall not be, in any case, a
distinction between the kindred of the whole and half blood of equal degree.”
¶92. Section 11-7-13 provides that Delvyn’s father may be excluded under section 91-1-15,
but section 11-7-13 may not be read to exclude or condition Delvyn’s half siblings’ rights to
their common parent’s (the natural father’s) status.
¶93. I am of the opinion that chancellor’s exclusion of Lisa, Kim, and Alan was manifestly
wrong and clearly erroneous. I would reverse the judgment that concludes Lisa, Kim, and
Alan are not proper wrongful-death beneficiaries under section 11-7-13 and remand for a
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hearing on the issue of whether Lisa, Kim, and Alan were Delvyn’s half siblings and are
therefore entitled to a portion of the settlement proceeds.
WESTBROOKS AND TINDELL, JJ., JOIN THIS OPINION IN PART.
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