J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Kenny Armstrong J., and William B. Acree, Sp. J., joined.
Intervening plaintiffs appeal from the dismissal of their petition to intervene in this wrongful death action. Discerning no error, we affirm.
On or around October 7, 2013, Aaron Dumas allegedly attacked Intervening Plaintiffs/Appellants Christopher J. White and Angelique Marie White ("Appellants"), causing serious injuries. A police investigation ensued and, on October 12, 2013, Mr. Dumas died when City of Memphis police officers allegedly used inappropriate chemical irritants in order to roust Mr. Dumas from the home in which he was ensconced, allegedly causing the home to catch fire. On October 6, 2014, Plaintiffs/Appellees Lisa M. Johnson, as Parent and Next Friend of Jordan Deshun Dumas and Jarien Johnson Dumas; and Sherkita Lockhart, as Parent and Next Friend of Javion Dumas, the minor children of Mr. Dumas ("Appellees") filed a complaint for wrongful death against the City of Memphis.
On October 7, 2014, Appellants filed a petition to intervene "[a]s [o]f [r]ight" in the wrongful death case, citing Rule 24 of the Tennessee Rules of Civil Procedure. Appellants did not allege that they had obtained a judgment against Mr. Dumas or that they had ever filed a complaint against any party as a result of Mr. Dumas's actions. Instead, Appellants alleged that they had "an interest in the outcome of this action to the extent of any payments made to [Appellees] and are entitled to claim said amount out of any recovery awarded to [Appellees] in this action." Appellants alleged that they were entitled to damages of at least $950,000.00. Appellants, therefore, asked that any funds recovered in Appellees action against the City of Memphis be placed in a trust, and that the damages owed to Appellants be paid from the trust.
Appellees opposed the petition to intervene and, on November 4, 2014, asked that the petition be dismissed for failure to state a claim upon which relief could be granted. Appellees argued, inter alia, that Appellants were not entitled to intervention "as of right" pursuant to Rule 24.01 of the Tennessee Rules of Civil Procedure because they failed to establish a legal right to any property recoverable in the underlying lawsuit against the City of Memphis, as they had never obtained a judgment against Mr. Dumas or his estate.
On December 4, 2014, Appellants filed a reply memorandum in support of their motion to dismiss. For the first time, Appellants cited Rule 24.02 of the Tennessee Rules of Civil Procedure governing permissive joinder, as the basis for their petition to intervene. Appellants again alleged that they had a legal right to any property recoverable in the underlying action against the City of Memphis.
On January 23, 2015, the City of Memphis filed an answer to Appellees' complaint, denying the material allegations contained therein. On May 18, 2015, the trial court granted Appellees' motion to dismiss Appellants' petition to intervene. Appellants filed a timely notice of appeal to this Court.
Appellants raise the following issues for our review:
Appellees also ask for damages incurred in the defense of a frivolous appeal.
Here, Appellants argue that the trial court erred in dismissing their petition
"Under rule 24.02, the trial court may permit an applicant to intervene if the court determines that the applicant's claims and the underlying action have a common question of law or fact."
"In this case, we cannot conclude that Appellants' claims and the underlying action have a common question of law or fact,"
Furthermore, the filing of an intervening complaint in the underlying action is not a substitute for a properly filed tort action directly against Mr. Dumas's estate. Tennessee Code Annotated Section 20-5-103, known as the "Survival Statute," provides that:
Pursuant to this statute, a tortfeasor's death will not terminate a cause of action against him or her.
Appellants argue, however, that they were excused from this procedure because no estate was ever opened for Mr. Dumas following his death. With no personal representative ever appointed to represent Mr. Dumas's estate, Appellants assert that they had no opportunity to assert a claim against Mr. Dumas's estate. In support, Appellants cite Tennessee Code Annotated Section 30-1-106, which provides:
Appellants assert that because they were neither next of kin nor creditors of Mr. Dumas, they were not entitled to apply for administration of Mr. Dumas's estate.
Respectfully, we cannot agree. Where no personal representative exists, an "injured person may petition the chancery court to appoint an Administrator Ad Litem for the limited purpose of serving as the defendant in the lawsuit" pursuant to Tennessee Code Annotated Section 30-1-109.
As such, Tennessee law envisions the very situation that Appellants assert exists in this case: "The law protects an injured person from the possibility that no estate is opened for the tortfeasor by allowing the injured person to petition the chancery court to appoint an administrator for the limited purpose of serving as the defendant in the lawsuit."
As previously discussed, the trial court's decision to deny Appellants' petition to intervene is reviewed under the abuse of discretion standard. See
Finally, Appellees ask this Court to award them attorney's fees on the ground that this appeal is frivolous. Parties should not be forced to bear the cost and vexation of baseless appeals.
Although we have not decided the issues in this case in favor of Appellants, we decline to conclude that this appeal was frivolous for the purpose of awarding damages pursuant to Tennessee Code Annotated Section 27-1-122.
The judgment of the Circuit Court of Shelby County is affirmed. Costs of this appeal are taxed to Appellants Christopher
Here, Appellants are appealing from the denial/dismissal of their petition to intervene. There can be no dispute that the underlying action between Appellees and the City of Memphis is still awaiting resolution in the trial court. No Tennessee Courts have specifically held that the denial/dismissal of a petition to intervene is an ancillary matter to the underlying lawsuit that is immediately appealable to this Court. Federal courts have generally held that an immediate appeal of the denial of a petition to intervene is permissible. See 15 A.L.R.2d 336, § 3[b] (Originally published in 1951) (noting that in federal courts, an order denying the right to intervene is typically immediately appealable; however, where the issue is permissive joinder, the only issue on appeal is whether the trial court abused its discretion in denying intervention) (citing
Regardless, we note that we are authorized by Rule 2 of the Tennessee Rules to "suspend the requirements or provisions of any of the[ ] [Tennessee Appellate Procedure] rules" for good cause shown. See Tenn. R.App. P. 2. ("For good cause, including the interest of expediting decision upon any matter, the Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its motion and may order proceedings in accordance with its discretion[.]"). The Tennessee Supreme Court has previously held that our discretion under Rule 2 allows us to suspend the requirements of Rule 3 limiting our jurisdictions to final judgments. See
Here, we conclude that good cause exists in this case to allow the parties to proceed with this appeal of the trial court's denial of Appellants' petition to intervene. Judicial economy would not be served by dismissing this appeal and remanding to the trial court until the resolution of all of the issues in the underlying action against the City of Memphis. If Appellants are, in fact, entitled to intervene in this action, a delay in allowing them to participate could prejudice their rights. Accordingly, under the particular facts in this case, we exercise our discretion to consider this appeal. We note, however, that we may not come to the same conclusion in a future case, and we encourage trial courts and litigants to utilize the procedure in Rule 54.02 of the Tennessee Rules of Civil Procedure, if applicable, to certify certain decisions as final for purposes of an immediate appeal.
Appellants have apparently abandoned this argument, as their appellate brief mentions only permissive joinder based on Rule 24.02. Indeed, Rule 24.01 is not cited by Appellants in their brief to this Court. Accordingly, we will only consider permissive joinder under Rule 24.02 in this appeal.