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02/27/98 THEONIA (TED) DUNN v. MISSISSIPPI STATE

THEONIA (TED) DUNN
v.
MISSISSIPPI STATE DEPARTMENT OF HEALTH AND TOMMIE LEE DUNN



DATE OF JUDGMENT: 07/22/96 TRIAL JUDGE: HON. PAT WISE COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - OTHER DISPOSITION AFFIRMED - 2/26/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:

Before Sullivan, P.j., Banks And Mills, JJ.

The opinion of the court was delivered by: Banks, Justice, For The Court:

¶1. This case was appealed from a decision in the Hinds County Chancery Court granting a judgment on the pleadings to Appellee Tommie Lee Dunn. After this appeal was filed, the appellee filed a motion asserting that the appellant 's standing to pursue the present appeal was negated by the final adjudication of related litigation in Tunica County. We conclude that the appellant lacked standing to continue this appeal, and in any event the issues he raises are without merit.

I.

¶2. The present appeal is before the Court from a judgment on the pleadings granted by the Chancery Court of the First Judicial District of Hinds County, Mississippi. The genesis of this litigation in Hinds County, and that of a related proceeding in Tunica County, is an offer by a casino company to purchase certain land which comprised part of the estate of Walter and Lizzie Dunn. The Tunica County lawsuit was filed on December 22, 1995, and was aimed at a determination of the heirs at law of Walter and Lizzie. The question of the identity of Tommie Lee Dunn as one of these heirs was an issue in the Tunica County litigation.

¶3. Tommie Lee Dunn, through his half-brother James Cooper, requested a copy of his birth certificate because he wished to use it in the Tunica County litigation to help prove his status as an heir of Walter and Lizzie. The Mississippi State Department of Health (Health Department) was unable to locate a birth certificate in his name, although one existed for a female named Fannie Lee Dunn. This birth certificate recorded the birth of a child to Jimmie Dunn and Martha Dunn, Tommie Lee's parents, on April 13, 1932, his birthday, in Robinsonville, Mississippi, his place of birth. Tommie Lee inquired about the procedures to have the first name and sex corrected. In accordance with these procedures, Tommie Lee provided the Health Department with a copy of school records corroborating his mother's name, as well as his date and place of birth. He also provided an affidavit form signed by himself and James Cooper. The Health Department thereafter issued a corrected birth certificate in the name of Tommie Lee Dunn, a male.

¶4. Appellant Theonia (Ted) Dunn, a citizen of Illinois, was one of the plaintiffs in the Tunica County litigation. He initiated the present action on May 1, 1996, by filing a Complaint for Declaratory Judgment and Injunctive Relief in the Hinds County Chancery Court against the Health Department and Tommie Lee. *fn1 Ted asserts that the Health Department's correction of the first name and sex on Tommie Lee's birth certificate violates Miss. Code Ann. § 41-57-21 (1993), since he claims the statute allows for correction of only one of these items of information. After Ted challenged the corrected birth certificate, Tommie Lee provided the Health Department with four additional sworn affidavits-three from older first cousins and one from his half-brother. Based on these additional affidavits, the Health Department re-issued a corrected birth certificate on May 28, 1996.

¶5. On June 18, 1996, in the Hinds County litigation, Tommie Lee filed a Motion for Judgment on the Pleadings, pursuant to Miss. R. Civ. P. 12(c). In his motion, Tommie Lee raised the issue of whether Ted, as a non-resident of Mississippi, had standing to contest the issuance of an amended birth certificate to a third party by the Health Department. He argued that Ted's pleadings assert no injury nor any facts giving the plaintiff any interest in the issuance of the corrected birth certificate, nor any right as a taxpayer and citizen of Mississippi to raise issues involving the Health Department's interpretation or exercise of discretion under Mississippi law.

¶6. On June 27, 1996, Ted filed his Response. In a sworn affidavit attached to this response, Ted stated that the reason he filed the Hinds County lawsuit was to protect his rights in the Tunica County litigation "as they may be affected by the creation of a birth certificate in the name of Tommie Lee Dunn." On July 22, 1996, the chancellor in the Hinds County litigation granted Tommie Lee's motion for judgment on the pleadings. The chancellor did not address the issue of standing, but decided the case on the ground that the correction of the birth certificate was within the statutory discretion of the Health Department. On August 20, 1996, Ted filed his Notice of Appeal in the present action.

¶7. On September 25, 1996, the chancellor in the Tunica County litigation found by clear and convincing evidence that Tommie Lee Dunn, as the son of Jimmie Dunn, was an heir at law to Walter and Lizzie Dunn. Thus, he was entitled to inherit an undivided fractional interest in the subject property. In his Memorandum Opinion, the chancellor further stated that the court was able to reach that Conclusion without considering the birth certificates:

Even had the Hinds County Chancery Court ruled differently, or if an Appellate Court rules that the corrected birth certificate was inadmissable, the Court nonetheless finds and determines that Tommie Lee Dunn is Jimmie Dunn's child. As to Tommie Lee's paternity, the proof is overwhelming, and meets the clear and convincing standard.

ΒΆ8.On January 23, 1997, Tommie Lee filed his Motion to Include Additional Findings of Fact and Evidence During Course of Appeal and Memorandum Brief in support thereof. Tommie Lee asserts that Ted's failure to appeal the Tunica County judgment "negated or dissolved" Ted's standing to contest the Health Department's correction of Tommie Lee's birth certificate "insomuch as any colorable interest that the Appellant might have had concerning the correction of birth certificate was rendered moot." Accordingly, he urges this Court to dismiss the appeal with prejudice and assess the Appellant with all costs of the proceeding. Ted filed a Response to Tommie Lee's motion on ...


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