Perry March v. Lawrence Levine ( 2002 )


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  •                   IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    February 15, 2002 Session
    PERRY MARCH v. LAWRENCE LEVINE, ET AL.
    Appeal from the Circuit Court for Davidson County
    No. 99P-1676    Frank G. Clement, Jr., Judge
    No. M2000-01955-COA-R3-CV - Filed March 17, 2003
    This matter is a dispute between Absentee Janet March’s parents, Lawrence and Carolyn Levine, and
    her husband, Perry March. The case began as an in rem battle over the Absentee’s property after
    Perry March opened an absentee estate following Janet’s disappearance. However, the Levines,
    thirty-one months after the absentee estate was opened, asked to amend the proceedings and add a
    claim for wrongful death against Perry March. The court allowed the amendment. Perry March
    incurred citations for civil contempt of court, and the Levines were eventually granted a default
    judgment as a result of his contempt. A judgment for $113,500,000.00 in damages was entered
    against him. Perry March appealed. We find that the trial court abused its discretion in allowing the
    wrongful death action, and we reverse the trial court. The default judgment for wrongful death and
    the award for damages against Perry March are reversed.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
    WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., joined.
    JEFFREY F. STEWART , SP . J., filed a dissenting opinion.
    John E. Herbison, Nashville, Tennessee, for the appellant, Perry March.
    C.J. Gideon, Jr. and Margaret J. Moore, Nashville, Tennessee, for the appellees, Lawrence Levine and
    Carolyn Levine, as Next Friends of Janet Levine March, as Next Friends of Samson March and
    Tzipora March; Children Janet Levine March, and in their Individual Capacities.
    OPINION
    Much of the history of this protracted litigation can be gleaned from the opinion of this Court
    in March v. Levine, No. 01-A-01-9708-PB-00437, 
    1999 WL 140760
     (Tenn. Ct. App. March 17,
    1999), the opinion of the United States District for the Middle District of Tennessee in March v.
    Levine, 
    136 F. Supp. 2d 831
     (M.D. Tenn. 2000), and the opinion of the United States Sixth Circuit
    Court of Appeals in March v. Levine, 
    249 F.3d 462
     (6th Cir. 2001).
    Perry March and Wife, Janet Levine March, are parents of two minor children, Samson and
    Tzipora March. Lawrence and Carolyn Levine are the parents of Janet Levine March and the
    maternal grandparents of the two minor children.
    Janet Levine March disappeared on August 15, 1996. Perry March, a Nashville lawyer, soon
    became the subject of an intense investigation into his wife’s disappearance. The body of Janet
    Levine March (assuming her to be deceased) has never been found.
    The seed of this litigation, which was destined to mushroom into a figurative giant sequoia,
    was planted by Perry March on October 30, 1996 when he filed, in the Probate Court for Davidson
    County, Tennessee, a Petition for Summary Relief pursuant to Tennessee Code Annotated section 30-
    3-203 seeking the transfer to him of two bank accounts totaling $4,770.19, held by Union Planters
    National Bank in the name of Janet Levine March.1
    Title 30 Chapter 3 of Tennessee Code Annotated entitled Absentee’s Estates is codified in two
    sections, the first section being the Uniform Absence as Evidence of Death and Absentees’ Property
    Law originally enacted as Chapter 102 of the Public Acts of 1941. 
    Tenn. Code Ann. § 30-3-101
     to
    114. Part two, entitled Conservators, is derived from Chapter 785 of the Public Acts of 1972 (adj.
    S.). 
    Tenn. Code Ann. § 30-3-201
     to 210.
    Tennessee Code Annotated section 30-3-203 provides for the transfer of property without
    conservatorship to the spouse or next of kin of any “absentee” as defined in section 30-3-201 of the
    Code, where the property has a gross value of less than $5,000. An “absentee,” as applicable in this
    case, is defined as “[a]ny resident of this state, or any person owning property herein, who disappears
    under circumstances indicating that he may have died, either naturally, accidentally or at the hand of
    another, or may have disappeared as the result of mental derangement, amnesia or other mental
    cause.” 
    Tenn. Code Ann. § 30-3-201
    (2)(1984).
    Although Code section 30-3-203 authorized the court to make the transfer of these accounts
    without notice or a hearing because the accounts contain less than $5,000, the court, nonetheless, set
    a hearing and notified the Levines. On November 6, 1996, Lawrence and Carolyn Levine filed an
    intervening petition in the probate court as next friends and parents of Janet Levine March and
    grandparents of Samson and Tzipora March in which they denied that Perry March was entitled to
    summary relief under section 30-3-203 of the Code and asserted:
    4.      The Absentee has been missing since August 15, 1996. Despite an intense
    search, the governmental authorities have been unable to locate her. According to
    public statements of the Metropolitan Police Department, the Petitioner is the only
    known suspect in her probable death. Contrary to the signed pleadings of Petitioner
    1
    This petition also so ught the transfer to Perry M arch o f custod ial rights in two other accounts at Union
    Planters National B ank he ld pursuant to Tennessee Uniform Transfer to Minors statutes. These accounts are not material
    to the issues in the case.
    -2-
    that Petitioner has searched for his wife, he has in fact made no public efforts to search
    for her and he has impeded the police investigation by refusing to have any
    communication or discussion with the Metro Police; he has refused to answer any
    further questions or meet with them after their initial investigation or help search for
    her.
    In sworn testimony taken in the cause of No. 9619-29147, Lawrence Levine
    and Carolyn Levine v. Perry March, Juvenile Court of Davidson County, Tennessee,
    he has refused to answer any questions regarding the disappearance of his wife on the
    grounds that it would tend to incriminate him under the 5th Amendment of the
    Constitution of the United States; he has refused to answer any questions regarding
    her disappearance or her probable death, and he has not cooperated with anyone in the
    search for her.
    5.       The two accounts described are accounts belonging to Janet Gail
    Levine March, his spouse, and if he is the person who has committed a homicide with
    regard to her, he cannot receive or inherit any property by virtue of T.C.A. § 31-1-106.
    Pursuant to T.C.A. § 31-1-106, if Perry A. March shall have been the person who
    killed or conspired to kill or procured to be killed Janet Gail Levine March, in that
    event he could not receive any part of the money owned by Janet Gail Levine March.
    The money that belongs to her should be held by the Public Guardian Ronald Nevin,
    an independent neutral party, or some other neutral party, as conservator under T.C.A.
    § 30-3-202 or T.C.A. § 30-3-204 for her benefit until further facts and circumstances
    be established as to her disappearance or death.
    ....
    1.       The Petitioner has unclean hands, for he refuses to divulge to any
    appropriate governmental body or the courts of this state the facts and circumstances
    regarding the disappearance of his wife, Janet Gail Levine March.
    2.       Pursuant to T.C.A. § 31-1-106, Petitioner could not inherit or hold
    funds belonging to her or be an appropriate fiduciary for his two minor children, if he
    be guilty under said statute.
    3.       The Petitioner is not residing at the home at 3 Blackberry Road,
    Nashville, Tennessee, 37215, the phones have been disconnected, the door locks have
    been changed, and he apparently is spending a great deal of his time in Illinois and
    may not be subject to process under the State of Tennessee.
    4.       As a matter of equity, the Court should freeze the funds of Janet Gail
    Levine March and the two minor children until such time as all facts and
    circumstances regarding her disappearance, her possible death, and the relationships
    of Janet Gail Levine March, Perry A. March and the two minor children be fully
    established.
    At this point, we interrupt the chronological narrative in order that the reader may understand
    the context in which subsequent events have occurred and recognize the enormity of the task
    confronting the trial court.
    -3-
    THE ACRIMONIOUS RELATIONSHIP BETWEEN THE PARTIES
    Lawrence and Carolyn Levine are convinced beyond any reasonable doubt that on August 15,
    1996 Perry March murdered his wife, Janet Levine March, and disposed of her body thereby
    depriving them of a daughter and depriving their grandchildren of a mother. With equal fervor, Perry
    March denies any involvement in the disappearance of Janet March and denies that she is deceased.
    The resulting antagonism between the parties permeates every phase of this litigation and shows no
    sign of ever abating.
    The trial court, more than five years ago in its order of September 10, 1997, clearly recognized
    what was happening and warned of the dire consequences that would result to the absentee Estate of
    Janet March if the litigious behavior of the parties continued.
    The funds available at the time of the hearing, August 15, 1997, after payment
    of the mortgage but prior to payment of any of the fee requests is approximately
    $320,000, will be quickly depleted unless substantial changes occur in the litigious
    protocol established by Mr. March and the Levines.
    The Court agrees with all parties that the fees at issue are more than substantial
    and is most concerned that the intensely contested proceedings, being the obvious and
    direct result of the animosity between Mr. March and the Levines and with almost
    every issue being vigorously contested, will deplete the resources of the Absentee’s
    estate within a few months unless Mr. March and the Levines cease, or at least
    substantially minimize, the intense litigation that has become the norm in this most
    tragic case.
    The Uniform Absence as Evidence of Death and Absentees’ Property Act (the
    “Absentee Act”) was enacted to provide for an orderly management of the affairs of
    persons who have disappeared, leaving families and property. As long as it is
    unknown whether the absentee be living or dead, rights must remain uncertain yet
    property must be managed. As stated by the National Conference of Commissioners
    on Uniform State Laws in its prefatory note at the time the Absentee Act was
    approved:
    It is unthinkable - the situation intolerable - where in case of an
    absentee, with absence unexplained, continuous, unheard of, leaving
    a family to be supported, debts to be paid and collected, life insurance
    to be paid, business to be carried on, etc., that there be no law for the
    ascertainment of rights and the distribution of property. The situation
    calls for a remedy and this Act provides it.
    Uniform Absence as Evidence of Death and Absentees’ Property Act, 8A U.L.A. 1
    (Master ed. 1993).
    Though the Conservator is admirably performing his duties, his efforts to
    preserve the estate and his willingness to evaluate the need for and to provide financial
    support for the Absentee’s dependents (if and when it is pursued in the proper fashion
    and with the requisite proof of need for support) are clearly being complicated by the
    -4-
    differences between the Levines and Mr. March. One of the more important purposes
    of the Absentee Act, to provide financial support for dependents, is particularly being
    frustrated by the acts and omissions of Mr. March. Mr. March has twice filed a claim
    for dependent support yet he has twice voluntarily dismissed the claims prior to the
    hearing. His acts, i.e. being litigious about most everything in these proceedings
    (though he is not alone in this area), and his election to repeatedly file and dismiss
    claims for support for himself or his children, present a troubling scenario that may
    result in the children receiving no financial support from their mother’s Absentee
    estate.
    One can foresee a disturbing result if there is no change. In the not too distant
    future, the [estate in this case] will be depleted without the dependents receiving any
    support as contemplated in the Absentee Act. Thereafter, the Court will likely be
    faced with a petition to sell the personal property of the Absentee, many of which are
    cherished personal possessions. If such should occur, the strong feelings and
    difficulties presented with the sale of the real estate will pale in comparison to the
    feelings likely to erupt with the sale of personal property of Janet Levine March.
    Such consequences must be avoided if at all possible and this Court intends
    to be proactive in anticipation of and to endeavor to prevent such a regrettable and
    avoidable event.
    The acts and omissions of Mr. March, along with other factors, may cause all
    who participate in these important proceedings to be viewed with disdain by those
    who wonder who was looking after the children’s interest while the money was being
    spent. There is no doubt whatsoever that Mr. March loves his children. There is no
    doubt whatsoever that Lawrence and Carolyn Levine love their grandchildren. There
    is no doubt that the Conservator is admirably performing his duties. Nevertheless, the
    incessant legal battles between Mr. March and the Levines will exhaust the estate of
    the Absentee in short order unless a substantial change occurs.
    However unfavorably this record reflects upon Perry March, one vital fact remains
    unchallenged. He has never been convicted of anything. In the eyes of the law, through which eyes
    alone this Court, and all other courts, must view the unfolding scene, Perry March is innocent of the
    charges leveled against him by the Levines and will remain so unless and until he is indicted, tried
    and convicted of such charges. Being overbearing and obnoxious, as well as in repeated civil
    contempt of court, does not equate to criminal conviction. The decision of this Court is made after
    careful consideration of the issues and not because of Perry March, but in spite of him.
    Returning to the narrative, Judge Clement heard the original Petition of Perry March and the
    Intervening Petition of Lawrence and Carolyn Levine on November 6, 1996, and immediately
    recognizing the hostility between the parties, declared Janet Levine March to be an “absentee” within
    the provisions of Tennessee Code Annotated Title 30. He also appointed Honorable Jeff Mobley of
    the Nashville Bar as conservator of the absentee’s estate of Janet Levine March.
    -5-
    This Order, entered November 12, 1996, began thirty-one months of what can only be
    described as trench warfare, with the Levines and Perry March fighting each other at every
    opportunity while the conservator made valiant efforts to preserve the ever diminishing estate of the
    absentee and the trial court sought in vain to control the proceedings. Respite for the absentee estate
    came on July 16, 1999, when the Levines changed course through an Amended Intervening Petition
    and Cross-Claim asserting, for the first time, a claim against Perry March for the wrongful death of
    Janet Levine March. It is this Amended Intervening Petition and Cross-Claim that forms the basis
    of the present appeal.
    In order for the ruling of this Court to be clearly understood, it is necessary to recount, as
    concisely as possible, the events that occurred between the appointment of the conservator on
    November 12, 1996, and the filing of the Amended Intervening Petition and Cross-Claim on July 16,
    1999.
    The original transcript, filed in this Court pursuant to designations of counsel for Perry March,
    discloses that Mr. March was allowed to dismiss his claims filed under Tennessee Code Annotated
    section 30-3-203 by order of December 9, 1996. On January 16, 1997, Perry March filed, pro se, a
    claim for “an undivided, absolute and uncontested marital interest in all of the Property of his wife,
    Absentee Janet Gail Levine March, including, but not by way of limitation, all real property, personal
    property, tangible property, intangible property, contingent or actual in nature and extent.” On August
    13, 1997, the Levines filed a Petition seeking to hold March in contempt of court for failure to deliver
    personal property of the Levines to them at his home in Chicago, Illinois as required by previous order
    of the court, and on September 8, 1997, the Levines filed a Supplemental Motion for Sanctions for
    his willful refusal to continue with his discovery deposition as well as a Supplemental Petition to
    Hold March in Contempt of Court for failure to deliver to the Levines personal property pursuant to
    orders of the court.
    By order entered September 10, 1997, the court approved fees for the conservator, including
    within the order his prophetic admonition to the Levines and March about litigious dissipation of the
    absentee estate.
    On September 17, 1997, March filed his Answer to Charges of Contempt and for Sanctions.
    On September 23, 1997, the Levines filed their Answer to the Response of March.
    All pending matters were heard by the trial court on September 24, 1997, where upon the court
    continued contested matters until October 28, 1997 because of a conflict affecting Mr. March. The
    Order entered subsequent to the September 24, 1997 hearing provided in part:
    Counsel for the respective parties in interest also announced in open Court
    certain agreements regarding custody and ownership of items of personal property
    currently or formerly belonging to the Absentee, Janet Gail Levine March. These
    announcements and the Court’s action based upon such announcements are as
    follows:
    -6-
    A.      Counsel for Perry March stated in open Court that Perry March is
    withdrawing his objection to the claim of Lawrence Levine that he is the owner of the
    “Two Lawyers” painting which was painted by the Absentee, Janet Gail Levine
    March. Based upon such announcement and the agreement of the parties in interest
    as announced by their counsel, the Court hereby declares that all right, title and
    interest in that painting created by Janet Gail Levine March and titled “Two Lawyers”
    be and hereby is vested in Lawrence E. Levine.
    B.       Counsel for Perry March announced in open Court that Mr. March is
    moving to dismiss, voluntarily and with prejudice, his appeal from the Court’s Order
    of July 21, 1997. In view of that announcement, and there having been no objection
    stated to the dismissal of this appeal it is, ORDERED that said appeal be and hereby
    is dismissed with prejudice with the costs of that appeal being divided equally
    between Perry March and the Estate of the Absentee, Janet Gail Levine March.
    C.       The Conservator announced in open Court an agreement among all
    parties in interest that, subject to the applicability to such property of that Bailment
    Agreement referred to in prior Orders of this Court and the execution by Mr. March
    of an appropriate UCC-1 reflecting the fact that these articles remain the property of
    the estate, Mr. March may have custody of the following items of personal property
    of the Absentee:
    1.     The bag of lace tablecloths and doilies as referred to in Item 7
    of Exhibit A to March’s “Motion to Tender Certain Items of Personal Property,” etc.
    2.     The “linens” as referred to in Item 8 of Exhibit A to Mr.
    March’s Motion. (It was expressly agreed that Mr. March would not receive the quilt
    referred to in Item 8 but only the “linens.”)
    3.     Two Mezzuzahs which were formerly located at the home on
    Blackberry Road where Perry March and the Absentee formerly resided, as referred
    to in Item 12 on Exhibit A to Mr. March’s Motion.
    4.     Two light fixtures which were formerly located at the home on
    Blackberry Road where Mr. March and the Absentee formerly resided as referred to
    in Item 12 of Exhibit A to Mr. March’s Motion.
    5.     A drawing of a man at a dessert cart.
    6.     A framed article from a magazine showing the drawing of the
    man at the dessert cart.
    7.     Those pictures from the wedding of Janet March and Perry
    March which depict Perry March and/or members of his immediate family but no
    other pictures from that wedding.
    With the exception of these enumerated items of personal property as to which
    the parties have agreed that Perry March may have custody, the relief sought by Perry
    March in his “Motion to Tender Certain Items of Property,” etc. referred to above is
    found by the Court not to be well-founded and is hereby denied.
    Based upon the Conservator’s request in open Court, the Court instructs the
    Conservator that, with the exception of the Absentee’s business records, the
    Conservator may deliver all items of the Absentee’s personal property which the
    -7-
    Conservator still possesses and which are not otherwise dealt with in this Order, to
    Lawrence and Carolyn Levine to be held by them pursuant to the terms of the
    pertinent Bailment Agreement.
    Based upon the Conservator’s request in open Court, and without objection
    having been made by any party, the Court instructs the Conservator that, with respect
    to those items of personal property set forth in Exhibit B to the Conservator’s Report
    and Recommendation, filed June 26, 1997 and addressed in Paragraph 3 of the court’s
    July 21, 1997 Order the Conservator may dispose of those items as he sees fit,
    including but not necessarily limited to donating those items to charitable
    organizations or needy persons. In that regard the Court finds that Perry March has
    failed to take possession of those items and remove them from storage at his expense
    within the time allowed for those purposes in this Court’s July 21, 1997 Order.
    Except as expressly set forth herein the disposition of the Absentee’s personal
    property provided for in the Court’s Final Order of July 21, 1997 shall not be affected.
    Counsel for the parties in interest stated in open Court that, with the exception
    of certain items of children’s cutlery discussed below, all of those items of personal
    property listed on Exhibit A to the Conservator’s Report and Recommendation under
    the headings “Carolyn’s/Larry’s” or “Mark’s” will be delivered by Perry March to the
    residence of Lawrence and Carolyn Levine in Deerfield, Illinois on October 6, 1997
    at 10:00 a.m. local time in Deerfield, Illinois. Based upon the agreement of all parties,
    it is ORDERED that Perry March will bring such items of the children’s cutlery
    shown on Exhibit A in the Conservator’s Report and Recommendation with respect
    to which he believes he should retain possession with him to the hearing which has
    been scheduled before this Court at l0:00 a.m. on October 28, 1997. At that hearing,
    the Court will hear evidence and determine what party is entitled to ownership and
    possession of these items of personal property.
    Counsel for Perry March further stated in open Court that Mr. March does not
    have the Encyclopedia Britannica owned by Dr. Howard Rosenblum which is listed
    on Exhibit A to the Conservator’s Report and Recommendation.
    Based upon the statements of counsel in open Court, the Court finds that
    Lawrence and Carolyn Levine have exercised their right as provided for in the Court’s
    July 21, 1997 Order to request that documents, scrapbooks or memorabilia belonging
    to the Absentee and in the custody of Perry March in Illinois be made available to
    them for copying at their expense. The Court therefore ORDERS that Perry March
    make such property available to the Levines for such purpose not later than October
    15, 1997. Such property includes but is not necessarily limited to those items
    contained in boxes marked “Kit Desk #1,” “Kit Desk #2,” and “Box #3" on page 2 of
    Exhibit A of the Conservator’s Report and Recommendations. To such extent as the
    Levines wish to request access to other items in Mr. March’s custody they will
    provide Mr. March’s attorney with a list of such items in a timely manner.
    The Conservator stated in open Court that, with respect to those items set forth
    on page 2 of Exhibit A to the Conservator’s Report and Recommendations (other than
    the 1996 Volvo 850) Perry March has complied with the requirements set forth in
    -8-
    Paragraph 2 of the Court’s July 21, 1997 Order that he list specifically which of those
    items he is retaining and how they are being used or displayed. The Court accordingly
    instructs the Conservator to permit Perry March to retain custody of those items
    pursuant to the terms of the Bailment Agreement which he has executed.
    On October 22, 1997, an Amended and Supplemental Petition by the Levines was filed
    seeking to hold Perry March in contempt of court relative to the delivery of certain personal property
    and asserting:
    1.     The quilt delivered was not the cross-stitched baby quilt described.
    Another quilt was delivered which was the wrong one and will be returned to Mr.
    March.
    2.     The bag delivered was not the black-beaded evening bag described.
    Another bag was delivered which was the wrong one and will be returned to Mr.
    March.
    3.     The Mind over Platter Cookbook was not delivered.
    4.     The two photo albums had many pictures taken out and left blank.
    5.     With respect to the furniture belonging to Mark Levine, a drawer from
    the antique secretary was shattered and broken in places.
    6.     The matching vanity dresser had a piece of wood broken off.
    7.     The wooden footstool was not delivered.
    8.     The encyclopedias were not delivered.
    The Levines filed a Memo Brief regarding sanctions and contempt of court of Perry March
    on December 8, 1997, after asserting the failure of Mr. March to complete his deposition. The Memo
    contains the following:
    He was required by the Court to produce the Levines’ furniture in Chicago, Illinois,
    on August 5, by agreement as set out in a court order. He did not do so. He had
    previously shipped the Levines’ furniture down to Hammond, Indiana several weeks
    prior thereto. He obviously knew where it was and failed to reveal such. Instead, he
    had his brother send them a fax the day before the pick up date telling them to go to
    Hammond, Indiana to a strange place to pick up their furniture. The Levines should
    not be forced to go to a strange place in another state, when Mr. March had control of
    the items in his own household, and for his own unknown reasons had shipped them
    down to a commercial establishment in Hammond, Indiana.
    The contempt was clearly a failure to follow the court order, and secondly, he
    was trying to force them into picking up the furniture with a truck at another place.
    Subsequently, after he was required by the court order of September 24 to have the
    furniture delivered to the Levines at their condo in Deerfield, Illinois he did not
    deliver certain items in good condition and he delivered several items that were not
    correct. Even though a supplemental petition was filed setting forth what happened,
    he has never tried to produce the correct items, nor has he offered to pay for the
    -9-
    damage that was (apparently) created by the shipment down to Indiana and the
    shipment back from Indiana. He tries to excuse his conduct on the basis that he saw
    or may have seen the shipment after it came back from Indiana, but his testimony was
    so confusing on this point that it is not worthy of belief. He had the items picked up
    and moved to another state and re-returned at his own risk and yet he never did try to
    inspect to see if they were in good condition when brought back to Deerfield, Illinois.
    He has to bear the responsibility. Secondly, he has to bear the responsibility of not
    furnishing the correct items after being warned in a supplemental petition that he still
    failed to comply. We believe these actions are all a part of a continuing pattern of
    willful contempt. His testimony is attached.
    Finally, he has yet to this date, turned over the kitchen boxes (kit boxes), with
    the items of great sentiment and memory, which he was ordered to produce for the
    Levines’ inspection and copying on September 24. His attorney, Ron March, was
    given two alternatives by letter of Harris A. Gilbert dated October 15. On December
    3, we received a fax indicating the items would be shipped soon, but they have not
    arrived.
    On January 26, 1998, March filed his Reply Memorandum Regarding Sanctions and Contempt
    of Court. In this memorandum, Mr. March observes:
    There is also testimony that certain items that were finally delivered in a timely
    fashion were not in good condition, and Mr. March delivered several items that were
    not correct. The testimony of Mr. March under oath at the most recent hearing
    indicates that he delivered the items in the condition that they were given to him and
    that, again, he did not engage in any contemptuous conduct.
    The Petitioners base a substantial part of their argument that Mr. March has
    engaged in a continuing pattern of willful contempt. It is now acknowledged by all
    parties that the kit-boxes were timely delivered to the Petitioners, along with at least
    one or two items that did not appear by means of a good faith mistake in the earlier
    delivery of the property to Deerfield, Illinois. Any further hearings on this matter
    would also indicate that the kit-boxes remained in Mr. March’s attorney’s office for
    some time awaiting representatives of the Petitioners’ to give instructions as to where
    they should be delivered or to be picked up by the Petitioners.
    The Levines filed an Addendum response on February 11, 1998 to the Perry March brief
    asserting, in part:
    In our original Brief, we pointed out the damage that had occurred with regard
    to the antique secretary and antique vanity desk belonging to the Levines. We
    overlooked the fact that these items were videotaped by the Levines in Chicago many
    months ago, long before Mr. March shipped them to Hammond, Indiana, and that he
    has the responsibility for delivering same back in good condition. He has not to this
    date offered to repair the damage or fix the items.
    -10-
    Although the “kit boxes” have been sent to Jeff Mobley, the following items
    are still in Mr. March’s possession after he was at the last court hearing and warned
    to return same to the Levines:
    A.      Black-beaded evening bag with multi-colored flowers
    belonging to Mrs. Levine.
    B.      The cross-stitched baby quilt with nursery rhymes
    hand-sewn by Janet’s grandmother.
    C.      A wooden footstool with woven twine top.
    D.      It is still unexplained as to what happened to the
    Encyclopedia Britannica.
    On July 15, 1998, the trial court entered an extensive Memorandum Opinion and Order
    finding Perry March in civil contempt of court relative to the delivery of personal property, observing:
    This Court finds the specific instances referenced above to be but a few
    examples of Mr. March’s consistent noncompliance with court orders in this case.
    Furthermore, this Court finds that Mr. March’s attempts to explain his failure to
    comply with the July 21 Order unsatisfactory and unconvincing. The Court further
    finds these events to constitute a troubling and consistent pattern of contemptuous
    conduct, of which there is clear and convincing evidence to conclude that Mr. March
    is in contempt of Court. Sadly, in a case where the Court has already commented on
    the detrimental effect of high litigation costs on the Absentee’s estate, Mr. March’s
    conduct has had the effect of turning a relatively simple matter, (e.g., the return of
    specifically described personal property, on a specific date, at a specific time, at a
    specific location) into a very protracted and intensely litigated affair.
    In the same Order, the court imposed T.R.C.P. Rule 37 sanctions against Mr. March because
    of his behavior during the course of his deposition and his action in terminating the deposition by
    walking out. Considering the entirety of this order of July 15, 1998, it is an understatement to observe
    that the trial court found Perry March not to be a credible witness. On January 20, 1999 the court
    entered an Order finding Mr. March to be in civil contempt of court and fined him $50 per day until
    “Perry A. March returns to the Levines the beaded bag, and the hand-stitched quilt belonging to the
    Levines. Said judgment shall also continue until Perry A. March pays the appropriate sum to the
    Levines for the repair and refinishing of the Levines’ furniture, which Perry A. March damaged.”
    Such is a condensed synopsis of the original transcript filed under designation of Appellant
    covering the thirty-one month period between the appointment of the conservator and the filing of the
    Amended Intervening Petition and Cross-Claim asserting a wrongful death action against Mr. March.
    Under designation of the Levines, a Supplemental Record was filed on appeal adding
    additional documents to the record, which are described in the supplemental transcript as follows:
    -11-
    1.      11/15/96 Affidavit of Harris Gilbert setting forth Defendant March’s
    refusal to appear for his deposition while in Nashville;
    2.      Levines’ 11/15/96 Motion for Sanctions against Defendant March,
    including letter dated 11/6/96 and deposition pages, regarding Defendant March’s
    refusal to appear for his deposition while in Nashville;
    3.      Defendant March’s 11/22/96 Motion to Terminate Deposition,
    including Affidavit, and 11/27/96 Order requiring Defendant March’s attendance at
    deposition;
    4.      12/23/96 Order awarding sanctions against Defendant March for failure
    to attend deposition;
    5.      Exhibit 8 to Court hearing of 2/14/97 filed on 3/17/97 regarding a
    listing of Levines’ personal property taken by Defendant March to Chicago to be
    returned to Levines;
    6.      Levines’ 3/18/97 Supplemental Response regarding sanctions for
    Defendant March’s failure to deliver Levines’ property as ordered by the Court;
    7.      3/19/97 Order granting permission to take Defendant March’s
    deposition but not allowing questions about the death of Janet Levine March;
    8.      3/31/97 Order, stating that Defendant March failed to comply with
    prior Court Order concerning return of Levines’ personal property and allowing
    Levines to videotape personal property at Defendant March’s Chicago residence.
    9.      Levines’ 4/17/97 Petition, including Exhibits 1, 2, and 3, regarding
    request to videotape the Levines’ personal property held by Defendant March at his
    Chicago residence;
    10.    Levines’ 6/19/97 Motion for Sanctions regarding the deposition of
    Defendant March;
    11.    7/21/97 Order regarding delivery to Levines of Levines’ personal
    property taken by Defendant March to Chicago;
    12.    Defendant March’s 8/20/97 Notice of Appeal regarding delivery of
    personal property to the Levines;
    13.    Levines’ 9/23/97 response brief, including exhibits, regarding
    Defendant March’s refusal to comply with Court Order regarding return of personal
    property to the Levines;
    14.    Levines’ 12/8/97 Memorandum Brief filed in support of Motion for
    Sanctions and Contempt including Exhibits 1 through 16, regarding Defendant
    March’s refusal to return Levines’ personal property and comply with Court Order;
    15.    Levines’ 1/27/98 reply brief regarding sanctions and contempt of Court
    by Defendant March, specifically Defendant’s misconduct during a deposition;
    16.    Levines’ 11/17/98 Petition for Contempt regarding Defendant March’s
    failure to comply with Court’s order and return Levines’ personal property;
    17.    Levines’ 11/17/98 Request for Fees and Expenses, including Exhibit
    4, for Defendant March’s failure to comply with the Court’s Order dated July 15,
    1998;
    -12-
    18.     1/20/99 Order regarding Defendant March’s contempt for refusal to
    obey Court Orders;
    19.     1/20/99 Order concerning dismissal of Defendant March’s appeal;
    20.     Levines’ 2/3/99 Motion to Dismiss Defendant March’s Appeal;
    21.     3/24/99 Order of the Court of Appeals regarding dismissal of
    Defendant March’s Notice of Appeal regarding contempt orders;
    22.     Levines’ 7/2/99 Petition, including exhibits and supporting
    memorandum brief, for Defendant March’s willful and deliberate refusal to comply
    with Court Orders;
    ....
    30.     Pages 22-36 of the transcript from the January 5, 1999 hearing
    regarding Defendant March’s failure to return to a handbag and a quilt and repair
    furniture as ordered by the Court;
    31.     Pages 35-39 and pages 42-48 from transcript from the August 15, 1997
    hearing regarding Defendant March’s failure to comply with Court Order on three
    separate occasions;
    32.     Cover page and pages 27-38 of transcript from September 24, 1997
    hearing regarding Defendant March’s failure to obey Court’s Orders;
    33.     Statement dated October 7, 1999 regarding Perry March’s failure to
    appear for a noticed deposition;
    ....
    1.      Defendant March’s 11/25/96 Complaint for Appointment of Receiver;
    2.      12/18/96 Order of Transfer to Probate Court by Chancellor Lyle;
    3.      11/25/96 Summons of Defendant March;
    4.      Defendant March’s 11/26/96 Motion to Transfer;
    5.      Defendant March’s 1/21/97 Motion to Dismiss, which includes
    statement by Defendant March that he is a party;
    6.      Defendant March’s 7/16/97 Objection to Fees;
    7.      Defendant March’s 8/20/97 Notice of Appeal;
    8.      9/10/97 docketing statement for Court of Appeals, listing Defendant
    March as a party and appellant at Court of Appeals;
    9.      9/16/97 Letter of Lionel Barrett designating record for Defendant
    March’s appeal;
    10.     Defendant March’s 10/7/97 Notice of Appeal;
    11.     Defendant March’s 8/14/98 Notice of Appeal;
    12.     10/4/99 Order of Magistrate Griffin regarding Defendant March’s
    request to remove case to Federal Court; and
    13.     Order filed March 20, 1997 from Chancery Court 97-904II.
    -13-
    From everything disclosed by the record up until July 16, 1999, the Levines and Perry March
    were litigating an in rem proceeding concerning only the personal property of the Absentee, Janet
    Levine March, and the personal conduct of Perry March in the litigation.2
    THE WRONGFUL DEATH ACTION
    On July 16, 1999, the Levines sought to amend their original Intervening Petition of
    November 6, 1996 in order to assert a wrongful death action against Perry March, acting in “their
    individual capacities as next friends of Janet March and as next friends of Samson and Tzipora
    March.” In this Amended Intervening Petition and Cross-Claim they asserted:
    5.      On August 15, 1996, Perry March intentionally inflicted severe,
    physical harm on Janet March and thereby proximately caused her death. The Cross-
    Claimants bring this action against Perry March for the wrongful death of Janet
    March.
    6.      Janet March and Perry March were married in June 1987 in Nashville,
    Tennessee. Samson March, their first child, was born August 27, 1990. Their second
    child, Tzipora March, was born May 17, 1994. At the time of the acts relevant to this
    action, Janet March and Perry March lived with their children at 3 Blackberry Road
    in Nashville, Tennessee.
    7.      The first few years of the marriage of Janet March and Perry March
    were without marital problems. However, beginning in 1990, Janet March and Perry
    March began having problems with their relationship. Over time, Perry March
    became physically, verbally, and emotionally abusive toward Janet March. At Janet
    March’s insistence, Perry March underwent several years of psychiatric treatment.
    The relationship continued to deteriorate, and by 1996, Janet March and Perry March
    argued frequently and Janet March was contemplating divorce. In early August 1996,
    the relationship had deteriorated so sharply that Perry March stayed in hotel rooms,
    rather than at his wife’s house, from August 7 until August 13, 1996.
    8.      Perry March returned to the house occupied by Janet March and his
    children on August 13, 1996. Despite his return home, the marital problems between
    Janet March and Perry March continued. On the night of August 15, 1996, Janet
    March and Perry March had a heated argument. Perry March inflicted serious bodily
    injury on Janet March during that argument. As a proximate result of Perry March’s
    violent and wrongful act, Janet March died on August 15, 1996 or very shortly
    thereafter.
    9.      After he killed Janet March, Perry March began taking steps to hide her
    body and destroy evidence of his wrongful act. At about midnight on August 15,
    1996, Perry March telephoned the Cross-Claimants and told them that he and Janet
    2
    Sep arate from the personal prop erty, the real estate owned by Janet March was also the subject of the
    litigation, but such is not m aterial to the case at ba r, it having b een d isposed of in confo rmity with the opinion of this
    Court in March v. Levine, 
    1999 WL 140760
    .
    -14-
    March had had an argument and that she had left the house. During a series of
    telephone calls between the Cross-Claimants and Perry March over the next twenty-
    four hours, Perry March fabricated other details of his story. He eventually told the
    Cross-Claimants that Janet March had said she was taking a twelve-day vacation and
    had given him a typed list of things to accomplish while she was gone. Still later,
    Perry March told the Cross-Claimants that Janet March had taken her passport,
    $1,500.00 cash, and three bags filled with clothes and personal items with her when
    she left.
    10.      On August 15, 1996, several hours before he called the Cross-
    Claimants to claim that Janet March had left, Perry March called his brother, Ron
    March, in Illinois and his sister, Kathy March, in Michigan. Within days of August
    15, 1996, and at different times, Ron March, Kathy March, and Perry March’s father,
    Arthur March, who resided in Mexico, came to Nashville.
    11.      On or about August 23, 1996, Perry March began searching for a
    criminal defense attorney. On August 29, 1996, at the insistence of the Cross-
    Claimants, the Metro Police were notified that Janet March was missing. On
    September 7, 1996, Janet March’s car was found at an apartment complex in
    Nashville. Inside the car were personal items belonging to Janet March. Janet
    March’s body has never been found.
    12.      On or about September 16, 1996, Metro Police asked Perry March to
    consent to a search of the personal computer on which Janet March had supposedly
    typed the list of things for Perry March to do while she was on vacation. Perry March
    refused to allow the search. Metro Police obtained a search warrant for the residence
    and notified Perry March’s criminal defense attorney that they would execute the
    warrant the following day, September 17, 1996. When they searched the house, Metro
    Police found that the computer’s hard drive had been forcefully removed from the
    computer. It has never been recovered, and Perry March has not offered an
    explanation for its disappearance.
    13.      On September 17, 1996, Metro Police publicly declared Perry March
    as the prime and only suspect in the homicide investigation of Janet March.
    14.      Since that date, Perry March has consistently refused to cooperate with
    the investigation into the death of Janet March. He has refused to answer questions
    about her death; he has refused to cooperate with the Metro Police in their
    investigation into the death; and he has hindered the investigation by, among other
    acts, hiding the body of Janet March, destroying or hiding evidence of her death, and
    by destroying or hiding the hard drive of the personal computer used by Janet March.
    15.      Because Perry March killed Janet March, Samson March and Tzipora
    March will be deprived for their lives of the love, affection, attention, devotion, and
    guidance of their mother. Because Perry March killed Janet March, the Cross-
    Claimants will be deprived for their lives of the love, affection, attention, devotion,
    and guidance of their daughter.
    -15-
    On July 26, 1999, Perry March filed his Special Appearance and Response to Motion Filed
    on Intervening Wrongful Death Action. In this pleading, he challenges the introduction of an entirely
    new cause of action into an existing in rem action by use of Rule 15.01 of the Tennessee Rules of
    Civil Procedure. Also, on July 26, 1999, the conservator for the absentee of Janet Levine March filed
    a petition, essentially, to be relieved from participation in the wrongful death action, asserting in part:
    4.       On November 6, 1996, Lawrence and Carolyn Levine filed with this
    Court an “Intervening Petition” setting forth that they were acting as “next friends and
    parents of Janet Gail Levine March and grandparents of Samson March and Tzipora
    March.”
    5.       Since that date, the Levines have participated fully in this action,
    including pursuing an appeal from this Court’s Order of May 1997 approving a
    settlement agreement with Perry March. However, the Levines have never filed a
    Motion for leave to intervene in this matter or obtained leave of Court to intervene,
    as is required by the express provisions of Rule 24, Tennessee Rules of Civil
    Procedure.
    6.       The Levines have now sought leave to amend their Intervening Petition
    to assert a tort claim of wrongful death against Perry March. Allowance of this
    amendment will not only radically alter the nature of this proceeding but will further
    deplete the assets of this estate if the Conservator and his counsel are required to
    participate in this additional litigation. It is respectfully submitted that the potentially
    significant financial burden to this estate of permitting the Levines to commence what
    is effectively a new cause of action is a relevant consideration for the Court in
    determining whether “justice requires” that this amendment be allowed in accordance
    with the requirements of Rule 15, Tennessee Rules of Civil Procedure.
    The proposed Amended Intervening Petition and the objections thereto came on to be heard
    by the trial court on July 30, 1999. At the conclusion of the hearing, the trial court observed:
    I think Mr. Gideon also had the right to file a Rule 15 motion to amend the
    previous matter, and so I believe it is properly before the Court to file it on that matter.
    Rule 15 clearly says that leave shall be freely given, and there’s an appellant opinion
    that says we don’t have to construe it. It means what is says. That’s one of the very
    few times I’ve read a Court of Appeals opinion that says, “We don’t have to explain
    it. Just read it.” And so it says that.
    Therefore - - and - - and any deficiencies in the amended petition are not to be
    challenged at the Rule 15 hearing. They are to be challenged after the Rule 15 is
    granted. About the only time I would have the right to say no on a Rule 15 is if it’s
    the day of the trial and there’s prejudice or if the party just clearly had no standing and
    there’s just absolutely no way to do it.
    But I feel I’m compelled to grant that. I feel that I should grant it, so I’m
    granting the motion and petition of Lawrence and Carolyn Levine to amend their
    petition to intervene and to bring what we refer to as a wrongful death action.
    -16-
    Now, having granted that, then Mr. Barrett, on behalf of Mr. March or any
    other party, would have the right to file a motion to dismiss, a motion for a more
    specific statement, a motion to remove Lawrence or Carolyn Levine as next kin
    because someone else has a superior right or they have a conflict of interest or what
    have you. But those matters actually occur on the second phase, the second hearing.
    That’s the way that Rule is written, and that’s the way I have followed it for almost
    20 years in this business.
    So, Mr. Gideon, your motion to intervene and to proceed with a wrongful
    death action is granted.
    On August 10, 1999, the trial court entered an Order allowing the Amended Intervening
    Petition and Cross-Claim holding:
    The Motion for Leave to Amend the Intervening Petition heretofore filed is
    well taken and is granted. Pursuant to Tenn. R. Civ. P. 15.01, the Petitioner shall have
    fifteen days from July 30, 1999, the date of the hearing of this matter, in which to
    answer the cross-claim. The Court finds that the Intervening Petitioners, Lawrence
    Levine and Carolyn Levine, are appropriate intervening parties and are properly before
    this Court.
    The Court also finds that the Intervening Petitioners, Lawrence Levine and
    Carolyn Levine, have standing to bring the wrongful death action as next friends of
    Janet Levine March and as next friends of Samson March and Tzipora March. The
    Court also finds that it has jurisdiction to preside over all issues that have heretofore
    been properly brought before it in this matter, including the allegations in the cross-
    claim for wrongful death brought by the Intervening Petitioners, Lawrence Levine and
    Carolyn Levine.
    The motion of the Conservator to be excluded from participation in discovery
    and other matters related to the wrongful death action is granted.
    We hold that the trial court erred in allowing the amendment.
    It is apparent that the trial court took literally the observation of the Supreme Court in Branch
    v. Warren, 
    527 S.W.2d 89
    , 92 (Tenn. 1975) wherein it is stated: “Indeed, the statute (section 20-1505,
    T.C.A.) which conferred a measure of discretion on trial judges was repealed and Rule 15 stands in
    its place and stead. That rule needs no construction; it means precisely what it says, that ‘leave shall
    be freely given.’ ”
    Taken literally and in isolation, this general statement would destroy any discretion in the trial
    court about allowing or disallowing amendments under Rule 15.01. Since Federal Rule of Civil
    Procedure 15(a) and Tennessee Rule of Civil Procedure 15.01 are identical, decisions under Federal
    Rule 15(a) may be considered in construing Tennessee Rule 15.01. Gamble v. Hospital Corp. of Am.,
    
    676 S.W.2d 340
     (Tenn. Ct. App. 1984).
    -17-
    The granting or denying of a motion to amend is within the sound discretion of the trial court
    and will be reversed only for an abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc.,
    
    401 U.S. 321
    , 
    91 S.Ct. 795
    , 
    28 L.Ed.2d 77
     (1971); Merriman v. Smith, 
    599 S.W.2d 548
     (Tenn. Ct.
    App. 1979).
    In Merriman v. Smith, this Court observed:
    Hageman v. Signal L.P. Gas, Inc., 
    486 F.2d 479
     (6th Cir. 1973), although it
    discusses the Federal Rules of Civil Procedure, Rule 15, sets out some of the broad
    and legitimate factors a trial judge should weigh in considering a Motion to Amend:
    Undue delay in filing; lack of notice to the opposing party; bad faith by the moving
    party, repeated failure to cure deficiencies by previous amendments, undue prejudice
    to the opposing party, and futility of amendment.
    Merriman, 
    599 S.W.2d at 559
    .3
    In this case:
    1.     The entire proceeding in the probate court from October 30, 1996 to July 16, 1999 was
    a purely in rem proceeding under the absentee estates statutes that dealt solely with the personal and
    real property of Janet Levine March.
    2.     The thirty-one month delay between the filing of the original Intervening Petition by
    the Levines on November 6, 1996 and the filing of the Amended Intervening Petition and Cross
    Complaint for Wrongful Death on July 16, 1999 is unexplained in the record.
    3.      There is no assertion by the Levines of any newly discovered evidence of wrongful
    death discovered subsequent to the November 6, 1996 Intervening Petition.
    4.      All of the facts alleged in the July 16, 1999 Amended Intervening Petition and Cross-
    Claim for wrongful death were known to the Levines at the time of the filing of the November 6, 1996
    Intervening Petition.
    UNDUE DELAY
    While delay alone is an insufficient basis for denying leave to amend, Moore v. City of
    Paducah, 
    790 F.2d 557
    , 562 (6th Cir. 1986), unexplained delay coupled with other factors may
    constitute “undue delay” within the meaning of the Rule as construed in Foman v. Davis, Merriman
    v. Smith and other cases. One such factor is where the party seeking to amend has known all of the
    facts underlying the amendment since the beginning of the litigation. “[L]ate amendments to assert
    new theories are not reviewed favorably when the facts and the theory have been known to the party
    seeking amendment since the inception of the cause of action.” Acri v. International Ass’n. of
    Machinist and Aerospace Workers, 
    781 F.2d 1393
    , 1398 (9th Cir. 1986). See also Royal Ins. Co. of
    3
    These are the same factors established by the United States Supreme Court in Foma n v. D avis, 
    371 U.S. 178
     , 83 S .Ct. 22 9, 
    9 L.Ed.2d 2
     22 (196 2).
    -18-
    Am. v. Southwest Marine, 
    194 F.3d 1009
    , 1016-17 (9th Cir. 1999); Duggins v. Steak ‘n Shake, Inc.
    
    195 F.3d 828
    , 834 (6th Cir. 1999).
    In upholding the denial by the trial court of leave to amend, the Tenth Circuit Court of
    Appeals observed in McKnight v. Kimberly Clark Corp., 
    149 F.3d 1125
     (10th Cir. 1998):
    The motion was filed a full year after the date of the initial pleading. Many key
    individuals would have had to be deposed again if the complaint was amended.
    Further, it appears that plaintiff was aware of all the information on which his
    proposed amended complaint was based prior to filing the original complaint.
    Plaintiff offered no explanation for the undue delay.
    We will not disturb a district court’s decision to deny a motion to amend if the
    opposing party will be unduly prejudiced by the amendment. Federal Insurance Co.
    v. Gates Learjet Corp., 
    823 F.2d 383
    , 387 (10th Cir. 1987). In this case, prejudice
    would clearly result. While we recognize that Fed.R.Civ.P. 15(a) requires that “leave
    shall be freely given,” we have previously held that undue delay is sufficient to deny
    such leave. See First City Bank v. Air Capitol Aircraft Sales, Inc., 
    820 F.2d 1127
    ,
    1133 (10th Cir. 1987).
    McKnight, 
    149 F.3d at 1130
    .
    Another factor relating to undue delay is prejudice to the opposing party. Reopening of
    discovery alone creates significant prejudice. City of Paducah, 
    790 F.2d 557
    . This factor is, of
    course, significantly discounted in this case because of repeated discovery evasion by Perry March,
    but it must be noted that no reason, justifiable or otherwise, appears from this record to explain why
    the Levines did not allege their wrongful death claim in their original Intervening Petition and thereby
    alleviate the necessity for reopening discovery thirty-one months later.
    NEW CAUSE OF ACTION PROBLEM
    A related and equally persuasive reason exists for denying leave to amend in this case. The
    “absentee” estate proceedings had been at issue for thirty-one months before the wrongful death
    amendment was sought. Much discovery and near-endless proceedings had already occurred in the
    trial court, all relating to the property of Janet March. The belated Amendment to the Intervening
    Petition and Cross-Claim against Perry March alleging wrongful death introduced an entirely separate
    proceeding into a statutory in rem case. In King v. King, 
    922 F.Supp. 700
    , 704 (D.N.H. 1996), the
    court addressed just such a problem holding, “the court finds that the addition of the proposed new
    claim would require discovery into matters that were not previously part of this action, and would
    likely further delay these already much delayed proceedings. The First Circuit has left no doubt that
    ‘the further along a case is toward trial, the greater the threat of prejudice and delay when new claims
    are belatedly added.’ Executive Leasing Corporation v. Banco Popular de Porta Rico, 
    48 F.3d 66
    ,
    71 (1st Cir.)” See also Groth v. Orkin Exterminating Co., Inc., 
    909 F.Supp. 1143
     (C.D. Ill. 1995);
    -19-
    Burger v. Edgewater Steel Co., 
    911 F.2d 911
     (3rd Cir. 1990); Grant v. News Group Boston, Inc., 
    55 F.3d 1
     (1st Cir. 1995).
    The difficulty in another context is well stated by Appellees in their response in this Court to
    Appellant’s Motion for Voluntary Dismissal of this appeal. Said Appellees on February 10, 2001:
    I.      THE COURT AND ALL PARTIES INVOLVED RECOGNIZED FROM THE
    BEGINNING OF THE WRONGFUL DEATH CLAIM THAT IT WAS A
    SEPARATE AND DISTINCT CASE PROSECUTED APART FROM THE
    PROBATE CASE
    On the same day the Trial Court granted the Appellees’ request to amend their
    Probate Court petition and assert wrongful death claims, the Trial Court also ruled the
    wrongful death claims would constitute a separate cause of action. In doing so, the
    Trial Court separated the parties and the causes of action. In the probate case, the
    parties were: the Levines, the Conservator, and Perry March. In the wrongful death
    action, the parties were: the Levines and Samson and Tzipora March as Plaintiffs and
    Perry March as the Defendant. The children were not a party to the absentee estate
    case, and the Conservator was not a party to the wrongful death case. In the July 30,
    1999 proceeding, the Court ruled:
    MR. LEEMAN:             You do need to address our request that you instruct us not to
    be involved in the wrongful death matter.
    THE COURT:              Correct. Thank you, Mr. Leeman. I did need to address that,
    and I was about to overlook it.
    A wrongful death action is brought on the behalf of the
    surviving spouse or minor children. Even if there’s a
    decedent’s estate open, even if there’s an executor or
    administrator of the estate, the executor and administrator
    don’t have to be the plaintiff.
    You don’t have to open a decedent’s estate to bring that action.
    It, under statute, is the right of the surviving spouse and/or
    minor children. The point being here that even though we
    have a Conservator, even if we had an executor, they would
    not have to be a party to that action. They would have a right
    to say we want to be the party, but they would not have to be.
    So for that reason, Mr. Leeman is correct that the Conservator
    does not have to be a party to the wrongful death action. And
    based upon their express desires that, to save the
    conservatorship money, they would like to be excluded from
    -20-
    that, so they don’t have an affirmative duty to participate or
    monitor, I agree.
    And so the Conservator shall not be obligated and shall have
    no duty to participate in a wrongful death action, whether it be
    brought by the Levines against Perry March, whether it be
    brought by Arthur March against Lawrence Levine or anybody
    else. . . .
    Clearly, the Trial Court ruled that, with the addition and subtraction of parties
    in the two, different lawsuits, the wrongful death action became a distinct cause of
    action. The wrongful death action was prosecuted entirely separately from the probate
    proceedings, and the Conservator did not participate in any way in the wrongful death
    case.
    Accordingly, there was never more than one claim for relief present in any
    action pending before the Trial Court. There was, and remains, a probate proceeding
    involving the conservatorship of Janet Levine’s estate. There was also, as a
    completely separate cause of action, a wrongful death action unrelated to the
    conservatorship, except that the cases shared the same decedent.
    Moreover, the Trial Court assigned a separate docket number to the wrongful
    death action and directed the clerk to maintain the file as a separate case. The Trial
    Court’s Order of October 20, 2000 clearly addresses the wrongful death action as
    being “distinguished from the Absentee Conservatorship and Receivership.”
    The wrongful death claims were prosecuted from the beginning as separate
    from and unrelated to the probate case involving the conservatorship of Janet Levine’s
    estate. They were not the same action as contemplated by Tenn. R. Civ. P. 54.02.
    Accordingly, the continuing pendency of the conservatorship does not affect the
    finality of the wrongful death judgment.
    COMPULSORY JOINDER OF THE CONSERVATOR PROBLEM
    Far from relieving the practical problems in this case and conserving judicial resources, the
    course of action taken has had the opposite effect. With apologies to Senator Carmack, the pewter
    handle has been welded to the wooden spoon. Without the conservator being a party to the wrongful
    death action, he is not bound by the finding of death, wrongful or otherwise. Under Tennessee Code
    Annotated section 30-3-102(1984) the issue of death “shall go to the court or jury as one of fact to
    be determined upon evidence.”4
    4
    The specific language that the issue of d eath “shall go to the court or jury as one of fact to be
    determined upon evidence” contained in Tennessee Code Annotated section 30-3-102 (1984) was deleted by Chapter
    121 of the Public Acts of 2001effective April 26, 2001. T he overall effect, however, of Tennessee Code Annotated
    section 30-3-10 2, as amended by Chapter 121 of the Public Acts of 2001, and the provisions of Tennessee Code
    Annotated section 30-3-108 (2001), as amended by the same Act, still require a factual hearing on the question of d eath
    (continued...)
    -21-
    Tennessee Code Annotated section 30-3-108(2001), relative to the final hearing on the
    absentee estate provides, in part:
    (a)      At any time during the proceedings, upon application to the court and
    presentation of satisfactory evidence of the absentee’s death, the court may make a
    final finding and decree that the absentee is dead, in which event the decree and a
    transcript of all the receivership proceedings shall be certified to the probate court for
    any administration required by law upon the estate of a decedent, and the receivership
    court shall proceed no further except for the purposes hereinafter set forth in § 30-3-
    110, subdivisions (1) and (3).
    The finding of death by the trial court in the wrongful death action cannot be res judicata as
    to the absentee estate or its conservator, as the conservator is not a party to the action. It is
    inconceivable that a default judgment against Perry March, based on no evidence, would work
    collateral estoppel on the conservator, or any third party dealing with the conservator, and thereby
    provide a substitute for evidence of death required by Tennessee Code Annotated sections 30-3-102
    and 30-3-108. See State ex rel. Cihlar v. Crawford, 
    39 S.W.3d 172
     (Tenn. Ct. App. 2000).
    We are left with the strange paradox that Janet March is alive (or at least not established by
    evidence to be otherwise) for the purpose of the absentee estate but deceased for the purpose of the
    wrongful death action against Perry March.
    Appellant March asserts on appeal that the conservator of the absentee estate is an
    indispensable party to the wrongful death action. Appellant points out that a party who will be
    directly affected by a decree and whose interest is not represented by any other party to the litigation
    is an indispensable or necessary party. It is difficult, however, to say that the conservator will be
    directly affected by the wrongful death decree. The conservator simply continues as before until he
    is relieved by a finding of death under the absentee estate statute, by evidence of death, or by
    unexplained absence for seven years under Tennessee Code Annotated section 30-3-102(a)(2001).5
    By Chapter 121 of the Public Acts of 2001, the legislature may have resolved the problem in futuro
    but not now.
    4
    (...continued)
    which hearing must take into consideration the presumption of death resulting from unexplained absence for seven years.
    5
    Prior to Ch apter 121 of the P ublic A cts of 2001 , effective A pril 26 , 200 1, section 30 -3-10 2 spe cifically
    provided that there was no presumption of death to be drawn by seven years of unexplained absence. By section 1(a)
    of this Act, the common law presumption of death from seven years unexplained absence was reinstated. The
    presumption is rebuttable, but unrebutted, will support a final decree dissolving the conservatorship estate per section
    30-3-108(c), as that Code section was amended by section 3(c) o f the 2001 A ct. By the terms o f section 6 there of,
    chapter 121 of the P ublic Acts of 2001 is applicable to any person whose death has not previously been adjudicated under
    Title 3 0 Chapter 3 part 1 regardless of the date o f disappearance or ab sence.
    -22-
    THE DEFAULT JUDGMENT
    The Amendment to the Intervening Petition and Cross-Claim alleging wrongful death was
    allowed by the trial court after a hearing on July 30, 1999. On February 8, 2000, the trial court
    granted judgment by default against Perry March for the wrongful death of Janet Levine March
    holding: “This court has held on two occasions that Perry March is a willfully disobedient party and
    has willfully disobeyed unambiguous, specific orders of this Court. The Court finds that Perry March
    continues to be a willfully disobedient party.” The Order then, as a sanction under Tennessee Rule
    of Civil Procedure 37.02(c), struck the Answer of Perry March to the Amended Intervening Petition
    and Cross-Claim and granted a judgment against Perry March as to liability for the wrongful death
    of Janet Levine March in the same language as was contained in the Amended Intervening Petition
    and Cross-Claim.
    In this action, we hold that the trial court was in error. Judgment by default for failure to obey
    an order to provide discovery is an extreme sanction. Shahrdar v. Global Hous., Inc., 
    983 S.W.2d 230
    , 236 (Tenn. Ct. App. 1998). The Levines sought, in vain, after the trial court allowed the
    wrongful death amendment, to compel Perry March to return to Nashville to give his discovery
    deposition. The trial court ordered him to return to Nashville. He countered with a proposal for a
    telephonic deposition or to submit to a deposition in the community of his residence in Mexico. He
    also asserted an unconvincing argument that he lacked the financial resources to return to Nashville.
    When one reviews the behavior of Perry March from November of 1996 up to the date of the
    filing of the wrongful death claim in July of 1999, almost any sanction would have been justified.
    However, it is the conduct of March following the conversion of this case to a wrongful death action
    that must be judged, rather than his previous conduct. Default judgments in general should be set
    aside if reasonable doubt exists as to the conduct of the defaulting party. Tennessee State Bank v.
    Lay, 
    609 S.W.2d 525
     (Tenn. Ct. App. 1980); Nelson v. Simpson, 
    826 S.W.2d 483
     (Tenn. Ct. App.
    1991). This rule must be balanced against the rule that the trial judge may be reversed on the
    imposition of sanctions only by an affirmative showing of an abuse of discretion. Brooks v. United
    Unif. Co., 
    682 S.W.2d 913
     (Tenn. 1984).
    Following the default judgment, the trial court, on April 4, 2000, denied Appellant’s
    application to set the judgment aside. The court impaneled a jury to determine damages and approved
    the jury’s verdict of $113,500,000.00 in damages against Perry March for the wrongful death of Janet
    Levine March.
    Considering the conduct of Mr. March subsequent to the filing of the wrongful death action,
    the imposition of a default judgment is simply too drastic a sanction for his behavior. Throughout
    this entire proceeding, Perry March has not been the only transgressor. The Levines, in their zeal to
    sustain their position and to punish Perry March for what they sincerely believe to be the murder of
    their daughter, have contributed greatly to the problems in this case. This Court recognizes the
    patience and fortitude of the learned trial judge in trying his best to control this litigation, preserve
    -23-
    the absentee estate, and maintain the integrity of his court in the face of nearly insurmountable
    challenges.
    CONCLUSION
    The judgment of the trial court allowing the amendment under Rule 15.01 of Tennessee Rules
    of Civil Procedure to assert a wrongful death action is reversed. The default judgment for wrongful
    death and the ensuing award of damages against Perry March is reversed.
    Appellant seeks a reversal and dismissal as an adjudication upon the merits of the wrongful
    death action. He cannot have both a holding that the amendment was erroneously allowed and the
    default judgment erroneously entered and, at the same time, claim the benefit of an adjudication upon
    the merits. If the amendment under Rule 15.01 was erroneous, there has been no adjudication upon
    the merits. Whether the purported wrongful death action is premature, timely, or barred by the Statute
    of Limitations must await adjudication on another date.
    The judgment of the trial court is reversed, and the case is remanded with directions to dismiss
    the wrongful death action and proceed with the absentee estate in rem action. Costs of the cause are
    assessed to Appellees.
    ___________________________________
    WILLIAM B. CAIN, JUDGE
    -24-
    

Document Info

Docket Number: M2000-01955-COA-R3-CV

Judges: Judge William B. Cain

Filed Date: 2/15/2002

Precedential Status: Precedential

Modified Date: 4/17/2021

Authorities (20)

Executive Leasing Corp. v. Banco Popular De Puerto Rico , 48 F.3d 66 ( 1995 )

Federal Insurance Company v. Gates Learjet Corporation , 823 F.2d 383 ( 1987 )

Sharon Hageman, Admx. Of the Estate of Donald Hageman v. ... , 486 F.2d 479 ( 1973 )

Paul Moore v. City of Paducah Mayor John Penrod Joe ... , 790 F.2d 557 ( 1986 )

McKnight v. Kimberly Clark Corp. , 149 F.3d 1125 ( 1998 )

donald-berger-barbara-dallas-william-kier-jr-rose-saxman-and-robert , 911 F.2d 911 ( 1990 )

rebecca-k-duggins-plaintiff-appellantcross-appellee-morganroth , 195 F.3d 828 ( 1999 )

perry-a-march-in-his-capacity-as-father-of-samson-leo-march-and-tzipora , 249 F.3d 462 ( 2001 )

george-t-acri-gray-r-althen-jose-angulo-john-r-armstrong-aronovsky , 781 F.2d 1393 ( 1986 )

Branch v. Warren , 527 S.W.2d 89 ( 1975 )

Merriman v. Smith , 599 S.W.2d 548 ( 1979 )

Foman v. Davis , 83 S. Ct. 227 ( 1962 )

Zenith Radio Corp. v. Hazeltine Research, Inc. , 91 S. Ct. 795 ( 1971 )

King v. King , 922 F. Supp. 700 ( 1996 )

Shahrdar v. Global Housing, Inc. , 983 S.W.2d 230 ( 1998 )

Tennessee State Bank v. Lay , 609 S.W.2d 525 ( 1980 )

Nelson v. Simpson , 826 S.W.2d 483 ( 1991 )

Gamble v. Hospital Corp. of America , 676 S.W.2d 340 ( 1984 )

March v. Levine , 136 F. Supp. 2d 831 ( 2000 )

State Ex Rel. Cihlar v. Crawford , 39 S.W.3d 172 ( 2000 )

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