TRK, LLC d/b/a TIMBER RIDGE TOWNHOUSE APARTMENTS, B&B MANAGEMENT GROUP, LLC AND TARA BURNSIDE
VIVIAN MYLES, INDIVIDUALLY AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF ENRIQUE L. MYLES, DECEASED AND/OR LJW., A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, JANNA WARNSLEY
OF JUDGMENT: 06/02/2014
COUNTY CIRCUIT COURT TRIAL HON. WINSTON L. KIDD JUDGE
COURT ATTORNEYS: JAMES ASHLEY OGDEN WENDY LOONEY JAMES W.
SMITH, JR. BERNARD C. JONES, JR. MICHAEL FRANKLIN HELD
ATTORNEYS FOR APPELLANTS: JAMES GRADY WYLY, III MICHAEL
FRANKLIN HELD ADAM B. HARRIS
ATTORNEYS FOR APPELLEES: JAMES ASHLEY OGDEN JAMES W. SMITH,
JR. BERNARD C. JONES, JR. SHANNON M. JONES ASHLEY JONES
DICKINSON, PRESIDING JUSTICE.
After Enrique Myles's death, his mother-Vivian
Myles-filed this wrongful-death suit. Later, the parties
became aware Enrique was survived by a minor child-LJW.
Rather than dismissing the case for lack of standing, as
requested by the defendant, the circuit judge allowed LJW to
be substituted as the plaintiff. This interlocutory appeal of
that decision followed, raising two related questions. First,
when a decedent is survived by his child, does the
decedent's mother have standing to file a wrongful-death
action? Second, if not, must the circuit judge dismiss the
complaint, or may the circuit judge remedy the lack of
standing by substituting the child as plaintiff?
Because Mississippi's wrongful-death statute specifically
grants the decedent's mother standing to file the
wrongful-death suit, even where a surviving child exists, we
AND PROCEDURAL HISTORY
Vivian Myles-who is Enrique L. Myles's mother, and who
believed she was his sole heir-filed this wrongful-death
lawsuit on behalf of Enrique's wrongful-death
beneficiaries.The defendants answered but later requested
a stay when Janna Warnsley claimed that Enrique was the
natural father of her child. The defendants argued that if
Enrique was the child's father, Vivian lacked standing to
file the suit. The defendants later supplemented their motion
with a copy of the chancery-court petition, claiming that
"Enrique L. Myles is the natural father of [L]W], "
and asking the chancellor to find that LJW was Enrique's
sole wrongful-death beneficiary.
LJW, by and through her mother, then moved to intervene in
the wrongful-death action. Vivian responded, stating she had
no objection to LJW's intervention. The defendants,
however, opposed LJW's intervention, insisting that if
LJW was a wrongful-death beneficiary, then Vivian was not and
the lawsuit had to be dismissed because the filing plaintiff
After the circuit judge denied the defendants' requested
stay, the defendants moved for summary judgment, claiming
that the chancery court had adjudicated LJW to be
Enrique's heir, that Vivian lacked standing, and that the
wrongful-death action had to be dismissed. In response, LJW
moved to substitute herself as plaintiff. Vivian responded,
arguing she had standing to file the wrongful-death action,
and that LJW's existence did no more than to deny her a
right to recover damages. She did not oppose LJW's motion
During the hearing on the motion for summary judgment,
Vivian's counsel suggested any issue of standing could be
remedied if she voluntarily dismissed her complaint and LJW
filed a new one. The defendants responded that the case must
be dismissed by the court as a matter of law. So the circuit
judge heard the parties' arguments on the merits and
later denied the defendants' summary-judgment motion and
granted the motion to substitute. The defendants then
petitioned this Court for interlocutory appeal. We granted
the petition and stayed proceedings in the circuit court.
Later, LJW and Vivian filed a motion to dismiss the appeal,
4. Plaintiff Vivian Myles, AGREES with the Petitioners that
she did not have standing to sue as the wrongful death
beneficiary, as the deceased had an unborn child at the time
of his death. This heir would be the person with the proper
standing to bring the suit. A paternity test has confirmed
the minor child is the sole heir to the deceased. Enrique
Myles' minor child, LJW, at the time of his death, was
his sole wrongful death beneficiary and heir at law with
proper standing to file suit.
5. Respondent agrees LJW, at the time of Enrique Myles'
death, was the sole heir and wrongful death beneficiary.
Further, Petitioners concede that LJW is a proper party
plaintiff and wrongful death beneficiary and heir.
6. Respondent agrees to dismiss the present lawsuit without
prejudice to allow the proper heir, LJW, to file a Complaint.
7. No prejudice to the parties will occur if Petitioners'
Petition for Interlocutory Appeal is dismissed and the
parties are directed to dismiss the current Complaint without
prejudice so the proper heir and wrongful death beneficiary
may file a new Complaint.
8. Any further briefing by the parties regarding the Petition
for Interlocutory Appeal would be a waste of time and
resources for both this Court and the parties. There is no
need for this Court to consider if Vivian Myles lacked proper
standing to bring suit because the parties agree that Vivian
Myles lacked proper standing and the correct person to bring
the suit is the minor LJW. It would not promote judicial
economy for the parties to fully brief this matter when the
Respondent has now agreed with the Petitioners on the issue
of who the correct heir is to bring the lawsuit. This issue
is now moot.
The defendants responded and opposed the motion to dismiss.
They argued this Court should address the legal question
presented to it, and that the Court should tax Vivian and LJW
with all costs and fees incurred during the litigation.
Vivian and LJW then filed a rebuttal, explaining they were
not abandoning their long-asserted view of the law, but
chosen to just agree with the Defendants' request to
refile the complaint. Why? Because it is the more practical,
judicially economic response instead of quibbling over an
outcome that does not matter since the outcome reaches the
same end result. It is easier to just agree with the request
of the Defendant to move the case forward and save the Court
and parties the wasted time.
A panel of this Court denied the motion to dismiss.
The defendants then filed a motion to hold LJW and Vivian in
contempt and impose sanctions, claiming that LJW had filed a
new wrongful-death action in the Hinds County Circuit Court.
According to the defendants, filing the new complaint
violated this Court's stay of proceedings in the trial
court. The defendants asked this Court to order LJW to
dismiss the new complaint and to award the defendants all
costs associated with defending the new complaint.
Vivian and LJW each responded. LJW argued that she had filed
her new complaint because she feared the statute of
limitations would soon run and she had to protect herself in
the event this Court concluded the first complaint should
have been dismissed. She also argued this Court's stay,
by its specific terms, applied only to the cause number on
appeal, not other proceedings in the circuit court. Finally,
she pointed out that the defendants' motion for contempt
attacked her for doing exactly what they had demanded all
along: that she file her own wrongful-death action. Vivian
responded that she was not a party to the new suit.
The parties then filed their briefs. The defendants argued
the circuit judge had erred by granting the motion to
substitute and denying the motion for summary judgment
because Vivian lacked standing to file this complaint, and
the filing plaintiff's lack of standing cannot be
corrected by substituting a different party. They also argue
LJW is judicially or equitably estopped from arguing that
Vivian had standing because she took a contrary position in
the motion to dismiss this appeal. LJW-whose counsel filed
the appellee's brief-argues that this appeal is moot
because she has filed a new complaint.
Whether the Court should reconsider the motion to
dismiss this appeal.
In her brief, LJW effectively reasserts the motion to dismiss
this appeal, which a motions panel of this Court already has
denied. She argues the Court's decision should now be
different because she has filed a new wrongful-death
complaint. The defendants do not agree the appeal should be
dismissed, arguing this Court must at least determine whether
LJW should be held in contempt for filing the second
complaint, and whether LJW and Vivian should be taxed with
the costs of this appeal. The defendants also contend that
the second-filed complaint is invalid because the first
complaint has not been dismissed and Mississippi's
wrongful-death statute allows only one suit. Because the
motions panel already denied the motion to dismiss, and LJW
offered to dismiss this litigation and file a new complaint
in that motion, we find that this issue already has been
Whether LJW is judicially or equitably estopped from
arguing Vivian had standing to file this wrongful-death
As discussed above, when Vivian and LJW filed the motion to
dismiss this appeal, the motion stated "Plaintiff Vivian
Myles, AGREES with the Petitioners that she did not have
standing to sue as the wrongful death beneficiary" and
"[t]here is no need for this Court to consider if Vivian
Myles lacked proper standing to bring suit because the
parties agree that Vivian Myles lacked proper standing."
But, after the defendants opposed that motion, Vivian and LJW
responded, stating they did not actually agree with that
point of law, but had simply decided that "[i]t is
easier to just agree with the request of the Defendant to
move the case forward and save the Court and parties the
wasted time." Now, in her brief, LJW argues Vivian had
The defendants argue LJW is judicially or equitably estopped
from arguing Vivian had standing because she has taken
inconsistent positions while this case has been on appeal.
Practically speaking, by invoking these doctrines to estop
LJW's argument on appeal, the defendants effectively ask
this Court to reverse the trial judge's ruling-whether he
erred or not-because LJW cannot defend his ruling. We have
found no authority-and the defendants cite none-to suggest
this Court may reverse a trial judge's correct ruling
because the appellee takes inconsistent positions on appeal.
But, even accepting that these doctrines could function in
this way, they do not apply here. "The doctrine of
'[j]udicial estoppel is designed to protect the judicial
system and applies where "intentional self-contradiction
is being used as a means of obtaining unfair advantage in a
forum provided for suitors seeking
justice."'" "A party will be judicially
estopped from taking a subsequent position if (1) the
position is inconsistent with one previously taken during
litigation, (2) a court accepted the previous position, and
(3) the party did not inadvertently take the inconsistent
positions." "'Judicial estoppel precludes a
party from asserting a position, benefitting from that
position, and then, when it becomes more convenient or
profitable, retreating from that position later in the
Here, LJW arguably has taken inconsistent positions on
appeal. She joined a motion saying Vivian lacked standing to
file this complaint but has now filed a brief arguing Vivian
had standing. Giving effect to the plain language of the
motion, it unequivocally agreed Vivian lacked standing. But
this Court has not "accepted the previous position,
" particularly because the acceptance prong looks to
whether the party "benefitt[ed] from that
position." LJW's prior position in the motion to
dismiss was designed to bring this litigation to an end. This
Court denied that motion.
The defendants also argue LJW should be equitably estopped
from changing her position. "Equitable estoppel
'precludes a party from denying a material fact which he
has previously induced another to rely upon, whereby the
second party changed his position in such a way that he would
suffer injury if denial was allowed.'" But here, no one
relied upon LJW's prior position. As stated above, LJW
made that statement to support a motion to dismiss which the
defendants opposed and this Court denied.
Whether Vivian had standing to file this
In Burley v. Douglas, this Court explained who has
standing to file suit under Mississippi's wrongful-death
statute. There, James Burley filed a wrongful-death
action relating to the deaths of his daughter and
grandsons. The defendants claimed Burley lacked
standing to file suit. The circuit judge dismissed
Burley's suit, insofar as it related to the deaths of his
grandsons, for lack of standing. This Court reversed,
The Statute provides three categories of potential
wrongful-death claimants who may commence a wrongful-death
action. The action may be brought "(1) by the personal
representative on behalf of the estate and all other persons
entitled to recover; (2) by one of the wrongful death
beneficiaries on behalf of all persons entitled to recover;
or (3) by 'all interested parties. . . . '" Each
category of potential wrongful-death claimants has an equal
right to initiate the suit.
appeal, LJW contends Vivian had standing to file this
wrongful-death action under each of the three grounds. We
conclude Vivian had ...