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March v. Levine3/17/2003
the pleading reflects whether Janet March was dead and by whose hand she died was at issue from the very beginning. There was no allegation any third person had caused her death. The issue of whether she was living or dead seems to be an issue which makes the case more than just an in rem proceeding. Rule 18 of the Tennessee Rules of Civil Procedure seems to permit the joinder of all claims and issues arising from the same transaction to be included or joined in a law suit involving the same parties.
Second, the trial judge relied on the case of Branch v. Warren, 527 S.W.2d 89 (Tenn. App. 1975) which held that Rule 15.01 of Tennessee Rules of Civil Procedure needs no construction. It means precisely what it says, to wit: leave to amend shall be freely given. The majority opinion, which would reverse the trial judge, relies heavily on the case of Merriman v. Smith, 599 S.W.2d 548 (Tenn. App. 1979) which holds the trial judge to a different standard in exercising his or her discretion. These considerations include undue delay in filing, lack of notice, bad faith, repeated failures to cure deficiencies by previous amendments, undue prejudice, and futility.
The majority opinion relies heavily on the effects of undue delay, prejudice and the fact that a new cause of action is raised by the amendment. As to whether or not there is a undue delay in filing, the record seems abundantly clear the Levines placed the blame for their daughter's death at the feet of Perry March from the very beginning on November 6, 1996. Perry March made at least two claims for benefits out of her estate, which were dismissed, and yet he continued to fight the Levines at every turn for possession of certain properties belonging to his wife. The issue of whether he was entitled to anything would be based on whether he caused her death or not. It would appear during the thirty-one month period of time between the filing of the original petition and the request for amendment involves numerous efforts by the Levines to discover from Perry March his knowledge of what caused the death or disappearance of their daughter. This became so much so that the trial court entered a protective order prohibiting the Levines from inquiring into such matters in the discovery process. At one stage of the early proceedings, the right of the Levines to intervene on their behalf of their grandchildren was challenged. An appeal of their standing was made to this court and was not determined until this court rendered its opinion in March of 1999. That opinion determined that the Levines did in fact have standing to intervene on behalf of their grandchildren. It was within three months of that opinion being entered that the Levines amended their petition to raise the issue of wrongful death. This does not seem like an undue delay where the question of their standing or right to participate was at issue on appeal, and where the Levines right to discover what may have happened to their daughter was denied.
While the acrimonious relation of the parties is resplendent in these proceedings, the conduct of Perry March is central in this one respect: he had moved from Tennessee to Illinois to Mexico. These moves made him a difficult person to serve with pleadings. It is also apparent he was a difficult person for the court to control in order to get him to comply with its orders. It would appear there is no prejudice to him by the delay because much of the delay seemed to have been caused by his appeals and his refusal to submit to discovery or by requesting protective orders in the discovery process. It would appear since he entered into a settlement agreement with the conservator of the absentee estate which would allow him to receive monies out
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