HAMON v. CONNELL ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: February 7, 2023
S22G0405. HAMON v. CONNELL et al.
MCMILLIAN, Justice.
Diane Dickens Hamon filed a medical malpractice action
against William Clark Connell, M.D., and South Georgia Emergency
Medicine Associates, P.C. (collectively “Appellees”), for the wrongful
death of her father, James Isaac Dickens, Jr. Appellees moved for
judgment on the pleadings asserting that, because Dickens had a
surviving spouse, Hamon did not have the right to bring the claim.
The trial court denied the motion, but the Court of Appeals reversed.
See Connell v. Hamon, 361 Ga. App. 830 (863 SE2d 744) (2021). We
granted Hamon’s petition for certiorari to consider the issue of
whether the trial court erred in determining that Hamon had the
right, under equitable principles, to pursue a claim under the
Wrongful Death Act, OCGA § 51-4-1 et seq. (the “Act”), when
Dickens’s widow allegedly refused to do so. Because we conclude, for
the reasons discussed below, that the trial court properly denied the
motion for judgment on the pleadings, we reverse.1
1. “Our review of a trial court’s decision on a motion for
judgment on the pleadings is de novo.” Polo Golf & Country Club
Homeowners Assn., Inc. v. Cunard, 306 Ga. 788, 791 (2) (833 SE2d
505) (2019). And, in reviewing such motions, “all well-pleaded
material allegations of the opposing party’s pleading are to be taken
as true, and all allegations of the moving party which have been
denied are taken as false.” Id. at 791-92 (2) (citation omitted). See
also Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891, 893 (1)
(792 SE2d 680) (2016) (“On appeal, we review de novo the trial
court’s decision on a motion for judgment on the pleadings, and we
construe the complaint in a light most favorable to the[non-movant],
drawing all reasonable inferences in his favor.” (citations and
1 We were aided in our consideration of this appeal by helpful amicus
curiae briefs filed by the Georgia Trial Lawyers Association and by attorneys
Kenneth J. Lewis and John J. Park, Jr. We thank them for their assistance.
2
punctuation omitted)).
As alleged in Hamon’s complaint, Dickens died on February 15,
2018. Hamon is an adult and Dickens’s sole surviving child. 2 At the
time of his death, Dickens was married to, but had long been
separated from, Hamon’s mother, Lisa Dickens, who “refused” to
bring a wrongful death claim in her capacity as Dickens’s surviving
spouse.3 In an effort to preserve the wrongful death claim, Hamon
filed this action, in both her individual capacity as Dickens’s
surviving child and in a representative capacity for Lisa Dickens. 4
The complaint also asserted that Hamon intended to file a motion to
add Lisa Dickens as an indispensable party to the action.
2 The complaint also asserts that, as Dickens’s surviving child, Hamon
had a “vested right” to a wrongful death claim under the Act. See OCGA § 51-
4-2. However, we are not required to accept that legal conclusion as true. See
Oasis Goodtime Emporium I, Inc. v. City of Doraville, 297 Ga. 513, 522 (3) (a)
(773 SE2d 728) (2015) (“While a trial court is required to consider a non-moving
party’s factual allegations to be true, it is not required to accept the legal
conclusions the non-[moving ]party suggests that those facts dictate.” (citing
Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) (764 SE2d 398) (2014)
(punctuation omitted)).
3 The trial court’s order states that Lisa Dickens was estranged from
Hamon, as well as Dickens, but no such allegation appears in the complaint.
4 OCGA § 51-4-2 (d) (1) provides that “[a]ny amount recovered under
subsection (a) of this Code section shall be equally divided, share and share
alike, among the surviving spouse and the children per capita . . . .”
3
In their motion for judgment on the pleadings, Appellees
argued that Hamon lacked the right to assert a claim for the
wrongful death of her father because the Act gave Lisa Dickens, as
Dickens’s surviving spouse, the sole right to bring the claim. See
OCGA § 51-4-2 (a) (“The surviving spouse or, if there is no surviving
spouse, a child or children, either minor or sui juris, may recover for
the homicide of the spouse or parent the full value of the life of the
decedent, as shown by the evidence.”). Hamon opposed the motion,
and, following a hearing, the trial court issued an order denying a
judgment on the pleadings. In making this ruling, the trial court
noted that Georgia’s appellate courts previously have recognized
equitable exceptions to the “spousal standing” rule in favor of a
decedent’s surviving children. The trial court found that Lisa
Dickens’s apparent refusal to bring a wrongful death action as
surviving spouse left Hamon “with no other recourse or adequate
remedy to recover from the parties that she alleges caused her
father’s death but to file her own wrongful death action” and
concluded that
4
[b]ased upon all of the above, and in consideration of the
particular facts and circumstance of this case, the Court
finds that the Plaintiff, as surviving child of the decedent,
fits under an equitable exception to the “spousal
standing” rule [and] is a proper party to bring the . . .
wrongful death action.
The Court of Appeals granted Appellees’ application for
interlocutory appeal from this order and reversed the trial court’s
denial of the motion for judgment on the pleadings, concluding that
the trial court impermissibly applied the principles of equity “[to
grant Hamon], an adult, standing to bring a wrongful death action
where the surviving spouse, albeit estranged, elected not to do so.”
Connell, 361 Ga. App. at 837. In making this determination, the
court reasoned that “no Georgia statute or case gives adult children
a right to file a wrongful death action to recover damages for the
death of a parent even if a surviving spouse declines to exercise his
or her right to bring such an action” and distinguished cases in
which this Court and the Court of Appeals had permitted a child
under similar circumstances to pursue a wrongful death action
under equitable principles as only applying to minor children. Id. at
5
838. Hamon asserts on appeal that the Court of Appeals erred in
reversing the trial court’s denial of the motion for judgment on the
pleadings.
2. In examining whether Hamon has the right to pursue a
wrongful death claim, we look first to the text of the Act. The parties
do not dispute that the Act grants a decedent’s surviving spouse the
right to pursue a wrongful death claim and grants that right to the
decedent’s “child or children, either minor or sui juris,” in the event
there is no surviving spouse. OCGA § 51-4-2 (a).5 However, as the
parties further acknowledge, under certain circumstances, Georgia
courts have applied equitable principles to allow someone other than
the decedent’s surviving spouse to pursue a wrongful death claim to
5 Under the Act, if there is not a surviving spouse or children, “the right
of recovery shall be in the parent or parents.” OCGA § 19-7-1 (c) (2). See also
OCGA § 51-4-4 (“The right to recover for the homicide of a child shall be as
provided in Code Section 19-7-1 and Code Section 53-1-5.”). And if the decedent
leaves no surviving spouse, child, or parent, the Act provides as follows:
When there is no person entitled to bring an action for the wrongful
death of a decedent under Code Section 51-4-2 or 51-4-4, the
administrator or executor of the decedent may bring an action for
and may recover and hold the amount recovered for the benefit of
the next of kin. In any such case the amount of the recovery shall
be the full value of the life of the decedent.
OCGA § 51-4-5 (a).
6
benefit a decedent’s children. The parties disagree, however, as to
whether these equitable principles apply with equal force to a
decedent’s adult children as they do to minor children.
In Brown v. Liberty Oil & Refining Corp., 261 Ga. 214 (403
SE2d 806) (1991), this Court applied equitable principles to allow a
decedent’s children to pursue a wrongful death action when the
surviving spouse refused to do so. In that case, the decedent’s minor
children brought a wrongful death action arising out of a collision
between their mother’s car and a truck operated by the defendant’s
employee, which resulted in the mother’s death. Although the
mother was survived by a spouse, the children alleged that he “has
abandoned them; cannot be located; and would not, in any event,
pursue the claim for wrongful death.” Brown, 261 Ga. at 214. The
trial court dismissed the children’s complaint for failure to state a
claim, and we reversed, holding that
the factual circumstances of this case demand the
exercise of [the trial court’s general equitable] powers to
preserve the rights of the minor children. The trial court
should have allowed these minors, who have no remedy
at law, to maintain an action for the wrongful death of
7
their mother.
Id. at 216 (2) (b) (emphasis in original). 6
In so holding, we pointed to the “general equitable powers in
the superior court.” Brown, 261 Ga. at 215-16 (2) (b).7 In addition,
we noted that the children who wished to bring suit cited to two
statutes that describe the scope of equity jurisdiction and the
authority of courts to apply equity to enforce rights. OCGA § 23-1-3
provides that “[e]quity jurisdiction is established and allowed for the
6 Brown also overturned prior case law holding that a decedent’s children
had no right to pursue a wrongful death claim where the decedent left a
surviving spouse. See O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373(349 SE2d 382) (1986); Mack v. Moore, 256 Ga. 138 (345 SE2d 338) (1986). See
also Bloodworth v. Jones, 191 Ga. 193, 196 (11 SE2d 658) (1940) (“[T]he statute
vests the right to sue in the first instance in the widow, and so long as she lives
neither the children nor any one for them can institute such action.”
(construing Ga Code Ann. §§ 105-1302, 1304) (1933)); Lawrence v. Whittle, 146
Ga. App. 686 (247 SE2d 212) (1978) (“From the language of Code Ann. § 105-
1302, it is clear that the cause of action for wrongful death of a husband vests
in the widow: A widow, or, if no widow, a child or children, minor or sui juris,
may recover for the homicide of the husband or parent. It is equally clear from
case law that the children have no right to sue so long as the widow is in life.”
(citation and punctuation omitted)).
7 At the time of Dickens’s death, the Georgia Constitution granted
exclusive jurisdiction over equity cases to the superior courts. See Ga. Const.
of 1983, Art. VI, Sec. IV, Par. I. The Constitution has since been amended to
grant the superior court “concurrent jurisdiction with the state-wide business
court in equity cases.” See Ga. L. 2018, Act 410, § 4 (ratified Nov. 6, 2018).
8
protection and relief of parties where, from any peculiar
circumstances, the operation of the general rules of law would be
deficient in protecting from anticipated wrong or relieving for
injuries done.” OCGA § 23-4-20 further provides that “[a]ny person
who may not bring an action at law may complain in equity and
every person who is remediless elsewhere may claim the protection
and assistance of equity to enforce any right recognized by the law.”8
Since our decision in Brown, the appellate courts of this State
have acknowledged and applied Brown’s equity-based rule. See, e.g.,
Blackmon v. Tenet Healthsystem Spalding, Inc., 284 Ga. 369, 370-71
(667 SE2d 348) (2008) (explaining that “both this Court and the
Court of Appeals have allowed other persons acting in a
8 Some of us are skeptical that Brown was rightly decided, given the
statutory text of OCGA § 51-4-2 (a), which expressly limits the right of a child
to pursue a wrongful death claim to circumstances in which there is no
surviving spouse. But Brown was decided over three decades ago, the statutory
stare decisis effect of Brown would be likely difficult to overcome, and the
parties do not ask us to overrule it. Accordingly, we faithfully apply Brown. See
Radioshack Corp. v. Cascade Crossing II, 282 Ga. 841, 843 (653 SE2d 680)
(2007) (“Even those who regard ‘stare decisis’ with something less than
enthusiasm recognize that the principle has even greater weight where the
precedent relates to interpretation of a statute.” (citation and punctuation
omitted)).
9
representative capacity to maintain a wrongful death action on
behalf of a minor child where the surviving spouse declines to pursue
the claim” and holding that case involving wrongful death claim filed
by minor child’s legal guardian on child’s behalf where surviving
spouse was incarcerated should have been transferred to superior
court, which had the requisite equity jurisdiction to consider the
issue); Emory Univ. v. Dorsey, 207 Ga. App. 808, 809-10 (2) (429
SE2d 307) (1993) (affirming trial court’s exercise of equitable powers
to allow minor child to bring wrongful death claim where the
surviving spouse was not the child’s parent or guardian and had left
the state with no intention of filing a wrongful death claim). 9
9 In addition, under circumstances not applicable here, our appellate
courts have permitted a child, parent, or administrator of the estate to pursue
a wrongful death action under equitable principles when the surviving spouse
was the wrongdoer. See, e.g., Rai v. Reid, 294 Ga. 270, 274-75 (2) (751 SE2d
821) (2013) (determining no error in trial court’s decision to allow minor child’s
adoptive father to pursue wrongful death claim on child’s behalf where
surviving spouse was involved in decedent’s murder); McIver v. Oliver, 353 Ga.
App. 106, 109-10 (836 SE2d 535) (2019) (holding that administrator of
decedent’s estate, rather than surviving spouse who caused decedent’s death,
could bring wrongful death action and directing that case be transferred from
state to superior court for the exercise of the latter court’s equitable powers);
Belluso v. Tant, 258 Ga. App. 453, 455 (574 SE2d 595) (2002) (noting that “it
is within the equitable powers of the superior court to permit the prosecution
10
Nevertheless, in this case, the Court of Appeals determined
that the application of these equitable principles was available only
to minor children and not to a decedent’s adult children. See Connell,
361 Ga. App. at 837-38. See also Northeast Ga. Med. Center, Inc. v.
Metcalf, 363 Ga. App. 676, 679 (1) (871 SE2d 454) (2022) (relying on
Connell to hold that decedent’s two adult children had no right to
bring a wrongful death claim where the decedent was survived by a
spouse, who was estranged from the decedent; lacked a relationship
with his son, who is one of the two children; was not the father of
the other child; and elected not to pursue a wrongful death claim).
We see no basis in the relevant case law, however, for drawing
such a distinction. Although Brown and the cases before Connell
each involved minor children, there is nothing in the language of
those cases or the equity statutes themselves to suggest that only
minor children may benefit from the equitable principles at issue
here. None of the cases based the application of those principles on
of the wrongful death action by a parent when the surviving spouse is the
alleged wrongdoer,” in construing OCGA § 19-7-1 (c)).
11
a consideration of the child’s minority. Although this Court
described the children in Brown as minors, there is no indication
that this Court’s analysis turned on that fact. Rather, we held that
the application of equity was necessary to preserve their rights
where they had “no remedy at law to maintain an action for the
wrongful death of their mother.” Brown, 261 Ga. at 215-16 (2) (b)
(emphasis omitted).
Moreover, the Act draws no distinction between minor and sui
juris children: it permits recovery to each on the same terms. In fact,
we addressed this question nearly a century ago when we construed
an earlier version of OCGA § 51-4-2 that permitted “minor or sui
juris” children to recover for their father’s homicide. See Peeler v.
Central of Ga. R. Co., 163 Ga. 784, 790 (137 SE 24) (1927). In Peeler,
we noted that the statute had recently been amended to add a right
of recovery for sui juris children in addition to minor children, and
we reasoned that the amendment meant the statute now permitted
recovery to “all children without regard to actual dependency, or the
dependency which might be implied from minority.” Id. See also
12
Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796 (2) (471 SE2d 504)
(1996) (when General Assembly amends a statute to add new text,
“we must presume that the legislative addition of language to the
statute was intended to make some change in the existing law”).
We concluded therefore that the prior version of the wrongful
death statute gave an unqualified right of action “upon the sole
ground of [the] relationship existing between parent and child” and
that the question of dependency was “absolutely immaterial.” Peeler,
163 Ga. at 789-90. Accordingly, the Court determined that the
decedent’s adult daughter could assert a claim for his wrongful
death. Id. We conclude here that the use of the same language in the
Act supports that no distinction may be drawn between minor and
adult children with regard to the right of recovery for wrongful
death. 10
Hamon alleged that she is Dickens’s child and that Lisa
10It also follows that Hamon’s failure to allege in her complaint that she
was dependent on Lisa Dickens was immaterial, and the Court of Appeals
erred to the extent that it relied on that omission in reversing the trial court’s
order. See Connell, 361 Ga. App. at 835.
13
Dickens “refused” to bring a wrongful death action as the surviving
spouse. Because the allegations of Hamon’s complaint do not
disclose with certainty that she would not be entitled under Brown
to pursue her wrongful death claim “under any state of provable
facts,” Hinson, 256 Ga. at 397, the Court of Appeals erred in
reversing the trial court’s denial of Appellees’ motion for judgment
on the pleadings.11 See, e.g., Brown, 261 Ga. at 214 (applying equity
to allow decedent’s children to pursue a wrongful death claim where
children represented that surviving spouse “has abandoned them;
cannot be located; and would not, in any event, pursue the claim for
wrongful death,” and court found that children thus had no legal
remedy (emphasis supplied)); Dorsey, 207 Ga. App. at 809-10 (2)
(affirming trial court’s exercise of equitable powers to allow minor
child to bring wrongful death claim where the surviving spouse had
11 For the same reasons, we also overrule Northeast Ga. Med. Center, 363
Ga. App. at 679, which relied on Connell to hold that two adult children had
no right to bring a wrongful death claim where the decedent was survived by
a spouse, and we also disapprove of Parrish v. St. Josephs/Candler Health
System, Inc., 364 Ga. App. 228, 238 (4) (874 SE2d 413) (2022), to the extent
that it relied on Connell with approval.
14
left the state with “no intention of pursuing a wrongful death action”
(emphasis supplied)).
Judgment reversed. All the Justices concur.
15