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PATRICIA McLEMORE, BRENDA McLEMORE, ALLEN McLEMORE AND MICHAEL McLEMORE, MINORS, BY AND THROUGH THEIR FATHER, DAVID McLEMORE v. WILLIAM GAMMON AND MARY GAMMON

MAY 08, 1985

PATRICIA McLEMORE, BRENDA McLEMORE, ALLEN McLEMORE AND MICHAEL McLEMORE, MINORS, BY AND THROUGH THEIR FATHER, DAVID McLEMORE
v.
WILLIAM GAMMON AND MARY GAMMON



BEFORE WALKER, DAN LEE AND ROBERTSON

WALKER, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal from a judgment of the Circuit Court of Harrison County, Mississippi. The appellants, the McLemores, aggrieved with the lower court's holding have perfected an appeal to this Court.

This case presents the question of whether the surviving adoptive brothers and sisters of a child killed in an automobile collision have the right to bring suit under Mississippi's wrongful death statute, Mississippi Code

 Annotated section 11-7-13 (Supp. 1984), to the exclusion of the natural brothers and sisters of such adoptive child.

 Ronnie Dale McLemore Gammon was born on September 13, 1966 and adopted by William and Mary Gammon on June 30, 1972. Ronnie Dale was killed in an automobile collision on April 6, 1982.

 On April 15, 1982 a complaint was filed in circuit court by and on behalf of Ronnie Dale McElemore Gammon's natural brothers and sisters against David Franklin Parr and William Bert Parr for the wrongful death of Ronnie. They also named as parties plaintiff the adoptive parents, William and Mary Gammon. The adoptive brothers and sisters of Ronnie Dale were not named as parties plaintiff. The McLemore's attorney, who filed the case had advised the Gammons that only one suit could be filed pursuant to Mississippi Code Annotated section 11-7-13 (Supp. 1984), known as our wrongful death statute and that this right was vested in the McLemores.

 The Gammons obtained the services of another attorney who wrote to the attorneys representing the McLemores discharging them from representing the Gammons with respect to any further action taken in regard to Ronnie Dale's death as there was a conflict between the interest of the Gammon children and that of the McLemore children.

 On May 11, 1983, a motion for declaratory judgment and related relief was filed by the McLemore's attorney asking the court to declare the McLemore children and the adoptive brothers and sisters and adoptive parents of Ronnie Gammon as those entitled to recover under section 11-7-13 and that the McLemore's attorney be declared the attorney of record.

 The Gammons and the adoptive brothers and sisters of Ronnie Gammon on May 19, 1983 filed their response to the McLemore's motion, also a motion to disqualify and dismiss the McLemore's attorney, and a motion for ratification of representation by succeeding counsel and a motion to intervene.

 Following a hearing, the circuit judge entered a judgment dismissing the McLemore children adjudicating that the McLemores had no litigable right, standing, interest or capacity to sue, or to recover proceeds for the death of Ronnie Gammon. Furthermore, the court ruled that Mr. and Mrs. Gammon and the adoptive brothers and sisters were the only parties entitled to sue for the wrongful death of the adopted child, Ronnie Dale Gammon.

 The appellants contend that the legislature has not

 excluded the natural brothers and sisters of an adopted child from recovering under the wrongful death statute, and that they are entitled to share equally the damages received, if any, with the adoptive parents and adoptive brothers and sisters of the deceased.

 They concede that Mississippi Code Annotated section 93-17-13 precludes them from inheriting from Ronnie Gammon but contend that section 11-7-13 gives them the right ...


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