HAMON v. CONNELL

883 S.E.2d 785, 315 Ga. 760

• Court: Supreme Court of Georgia
• Decided: February 7, 2023
• Docket: S22G0405
• Status: Published

Opinion

315 Ga. 760 FINAL COPY

S22G0405. HAMON v. CONNELL et al.

MCMILLIAN, Justice.

Diane Dickens Hamon filed a medical malpractice action

against William Clark Connell, M.D., and South Georgia Emergency

Medicine Associates, P.C. (collectively “Appellees”), for the wrongful

death of her father, James Isaac Dickens, Jr. Appellees moved for

judgment on the pleadings asserting that, because Dickens had a

surviving spouse, Hamon did not have the right to bring the claim.

The trial court denied the motion, but the Court of Appeals reversed.

See Connell v. Hamon, 361 Ga. App. 830 (863 SE2d 744) (2021). We

granted Hamon’s petition for certiorari to consider the issue of

whether the trial court erred in determining that Hamon had the

right, under equitable principles, to pursue a claim under the

Wrongful Death Act, OCGA § 51-4-1 et seq. (the “Act”), when

Dickens’s widow allegedly refused to do so. Because we conclude, for

the reasons discussed below, that the trial court properly denied the motion for judgment on the pleadings, we reverse.1

1. “Our review of a trial court’s decision on a motion for

judgment on the pleadings is de novo.” Polo Golf & Country Club

Homeowners Assn., Inc. v. Cunard, 306 Ga. 788, 791 (2) (833 SE2d

505) (2019). And, in reviewing such motions, “all well-pleaded

material allegations of the opposing party’s pleading are to be taken

as true, and all allegations of the moving party which have been

denied are taken as false.” Id. at 791-92 (2) (citation and punctuation

omitted). See also Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga.

891, 893 (1) (792 SE2d 680) (2016) (“On appeal, we review de novo

the trial court’s decision on a motion for judgment on the pleadings,

and we construe the complaint in a light most favorable to the [non-

movant], drawing all reasonable inferences in his favor.” (citations

and punctuation omitted)).

As alleged in Hamon’s complaint, Dickens died on February 15,

1 We were aided in our consideration of this appeal by helpful amicus

curiae briefs filed by the Georgia Trial Lawyers Association and by attorneys Kenneth J. Lewis and John J. Park, Jr. We thank them for their assistance.

2 2018. Hamon is an adult and Dickens’s sole surviving child.2 At the

time of his death, Dickens was married to, but had long been

separated from, Hamon’s mother, Lisa Dickens, who “refused” to

bring a wrongful death claim in her capacity as Dickens’s surviving

spouse.3 In an effort to preserve the wrongful death claim, Hamon

filed this action, in both her individual capacity as Dickens’s

surviving child and in a representative capacity for Lisa Dickens.4

The complaint also asserted that Hamon intended to file a motion to

add Lisa Dickens as an indispensable party to the action.

In their motion for judgment on the pleadings, Appellees

argued that Hamon lacked the right to assert a claim for the

2 The complaint also asserts that, as Dickens’s surviving child, Hamon

had a “vested right” to a wrongful death claim under the Act. See OCGA § 51- 4-2. However, we are not required to accept that legal conclusion as true. See Oasis Goodtime Emporium I, Inc. v. City of Doraville, 297 Ga. 513, 522 (3) (a) (773 SE2d 728) (2015) (“While a trial court . . . is required to consider a non- moving party’s factual allegations to be true, it is not required to accept the legal conclusions the non-[moving ]party suggests that those facts dictate.” (punctuation omitted) (citing Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) (764 SE2d 398) (2014)). 3 The trial court’s order states that Lisa Dickens was estranged from

Hamon, as well as Dickens, but no such allegation appears in the complaint. 4 OCGA § 51-4-2 (d) (1) provides that “[a]ny amount recovered under

subsection (a) of this Code section shall be equally divided, share and share alike, among the surviving spouse and the children per capita . . . .” 3 wrongful death of her father because the Act gave Lisa Dickens, as

Dickens’s surviving spouse, the sole right to bring the claim. See

OCGA § 51-4-2 (a) (“The surviving spouse or, if there is no surviving

spouse, a child or children, either minor or sui juris, may recover for

the homicide of the spouse or parent the full value of the life of the

decedent, as shown by the evidence.”). Hamon opposed the motion,

and, following a hearing, the trial court issued an order denying a

judgment on the pleadings. In making this ruling, the trial court

noted that Georgia’s appellate courts previously have recognized

equitable exceptions to the “spousal standing” rule in favor of a

decedent’s surviving children. The trial court found that Lisa

Dickens’s apparent refusal to bring a wrongful death action as

surviving spouse left Hamon “with no other recourse or adequate

remedy to recover from the parties that she alleges caused her

father’s death but to file her own wrongful death action” and

concluded that

[b]ased upon all of the above, and in consideration of the particular facts and circumstance of this case, the Court finds that the Plaintiff, as surviving child of the decedent,

4 fits under an equitable exception to the “spousal standing” rule [and] is a proper party to bring the . . . wrongful death action.

The Court of Appeals granted Appellees’ application for

interlocutory appeal from this order and reversed the trial court’s

denial of the motion for judgment on the pleadings, concluding that

the trial court impermissibly applied the principles of equity “[to

grant Hamon], an adult, standing to bring a wrongful death action

where the surviving spouse, albeit estranged, elected not to do so.”

Connell, 361 Ga. App. at 837. In making this determination, the

court reasoned that “no Georgia statute or case gives adult children

a right to file a wrongful death action to recover damages for the

death of a parent even if a surviving spouse declines to exercise his

or her right to bring such an action” and distinguished cases in

which this Court and the Court of Appeals had permitted a child

under similar circumstances to pursue a wrongful death action

under equitable principles as only applying to minor children. Id. at

838. Hamon asserts on appeal that the Court of Appeals erred in

reversing the trial court’s denial of the motion for judgment on the

5 pleadings.

2. In examining whether Hamon has the right to pursue a

wrongful death claim, we look first to the text of the Act. The parties

do not dispute that the Act grants a decedent’s surviving spouse the

right to pursue a wrongful death claim and grants that right to the

decedent’s “child or children, either minor or sui juris,” in the event

there is no surviving spouse. OCGA § 51-4-2 (a).5 However, as the

parties further acknowledge, under certain circumstances, Georgia

courts have applied equitable principles to allow someone other than

the decedent’s surviving spouse to pursue a wrongful death claim to

benefit a decedent’s children. The parties disagree, however, as to

whether these equitable principles apply with equal force to a

5 Under the Act, if there is not a surviving spouse or children, “the right

of recovery shall be in the parent or parents.” OCGA § 19-7-1 (c) (2). See also OCGA § 51-4-4 (“The right to recover for the homicide of a child shall be as provided in Code Section 19-7-1 and Code Section 53-1-5.”). And if the decedent leaves no surviving spouse, child, or parent, the Act provides as follows: When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4, the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent. OCGA § 51-4-5 (a). 6 decedent’s adult children as they do to minor children.

In Brown v. Liberty Oil & Refining Corp., 261 Ga. 214 (403

SE2d 806) (1991), this Court applied equitable principles to allow a

decedent’s children to pursue a wrongful death action when the

surviving spouse refused to do so. In that case, the decedent’s minor

children brought a wrongful death action arising out of a collision

between their mother’s car and a truck operated by the defendant’s

employee, which resulted in the mother’s death. Although the

mother was survived by a spouse, the children alleged that he “has

abandoned them; cannot be located; and would not, in any event,

pursue the claim for wrongful death.” Id. at 214. The trial court

dismissed the children’s complaint for failure to state a claim, and

we reversed, holding that

the factual circumstances of this case demand the exercise of [the trial court’s general equitable] powers to preserve the rights of the minor children. The trial court should have allowed these minors, who have no remedy at law, to maintain an action for the wrongful death of their mother.

7 Id. at 216 (2) (b) (emphasis in original).6

In so holding, we pointed to the “general equitable powers in

the superior court.” Brown, 261 Ga. at 215-16 (2) (b).7 In addition,

we noted that the children who wished to bring suit cited to two

statutes that describe the scope of equity jurisdiction and the

authority of courts to apply equity to enforce rights. OCGA § 23-1-3

provides that “[e]quity jurisdiction is established and allowed for the

protection and relief of parties where, from any peculiar

6 Brown also overturned prior case law holding that a decedent’s children

had no right to pursue a wrongful death claim where the decedent left a surviving spouse. See O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373 (349 SE2d 382) (1986); Mack v. Moore, 256 Ga. 138 (345 SE2d 338) (1986). See also Bloodworth v. Jones, 191 Ga. 193, 196 (11 SE2d 658) (1940) (“[T]he statute vests the right to sue in the first instance in the widow, and so long as she lives neither the children nor any one for them can institute such action.” (construing Ga. Code Ann. §§ 105-1302, 105-1304) (1933)); Lawrence v. Whittle, 146 Ga. App. 686, 687 (3) (247 SE2d 212) (1978) (“From the language of Code Ann. § 105-1302, it is clear that the cause of action for wrongful death of a husband vests in the widow: A widow, or, if no widow, a child or children, minor or sui juris, may recover for the homicide of the husband or parent. It is equally clear from case law that the children have no right to sue so long as the widow is in life.” (citation and punctuation omitted)). 7 At the time of Dickens’s death, the Georgia Constitution granted

exclusive jurisdiction over equity cases to the superior courts. See Ga. Const. of 1983, Art. VI, Sec. IV, Par. I. The Constitution has since been amended to grant the superior court “concurrent jurisdiction with the state-wide business court in equity cases.” See Ga. L. 2018, pp. 1130, 1134, § 4 (ratified Nov. 6, 2018).

8 circumstances, the operation of the general rules of law would be

deficient in protecting from anticipated wrong or relieving for

injuries done.” OCGA § 23-4-20 further provides that “[a]ny person

who may not bring an action at law may complain in equity and

every person who is remediless elsewhere may claim the protection

and assistance of equity to enforce any right recognized by the law.”8

Since our decision in Brown, the appellate courts of this State

have acknowledged and applied Brown’s equity-based rule. See, e.g.,

Blackmon v. Tenet Healthsystem Spalding, Inc., 284 Ga. 369, 370-71

(667 SE2d 348) (2008) (explaining that “both this Court and the

Court of Appeals have allowed other persons acting in a

representative capacity to maintain a wrongful death action on

8 Some of us are skeptical that Brown was rightly decided, given the

statutory text of OCGA § 51-4-2 (a), which expressly limits the right of a child to pursue a wrongful death claim to circumstances in which there is no surviving spouse. But Brown was decided over three decades ago, the statutory stare decisis effect of Brown would be likely difficult to overcome, and the parties do not ask us to overrule it. Accordingly, we faithfully apply Brown. See RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841, 843 (653 SE2d 680) (2007) (“Even those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute.” (citation and punctuation omitted)).

9 behalf of a minor child where the surviving spouse declines to pursue

the claim” and holding that case involving wrongful death claim filed

by minor child’s legal guardian on child’s behalf where surviving

spouse was incarcerated should have been transferred to superior

court, which had the requisite equity jurisdiction to consider the

issue); Emory Univ. v. Dorsey, 207 Ga. App. 808, 809-10 (2) (429

SE2d 307) (1993) (affirming trial court’s exercise of equitable powers

to allow minor child to bring wrongful death claim where the

surviving spouse was not the child’s parent or guardian and had left

the state with no intention of filing a wrongful death claim).9

9 In addition, under circumstances not applicable here, our appellate courts have permitted a child, parent, or administrator of the estate to pursue a wrongful death action under equitable principles when the surviving spouse was the wrongdoer. See, e.g., Rai v. Reid, 294 Ga. 270, 274-75 (2) (751 SE2d 821) (2013) (determining no error in trial court’s decision to allow minor child’s adoptive father to pursue wrongful death claim on child’s behalf where surviving spouse was involved in decedent’s murder); McIver v. Oliver, 353 Ga. App. 106, 109-10 (836 SE2d 535) (2019) (holding that administrator of decedent’s estate, rather than surviving spouse who caused decedent’s death, could bring wrongful death action and directing that case be transferred from state to superior court for the exercise of the latter court’s equitable powers); Belluso v. Tant, 258 Ga. App. 453, 455 (574 SE2d 595) (2002) (noting that “it is within the equitable powers of the superior court to permit the prosecution of the wrongful death action by a parent when the surviving spouse is the alleged wrongdoer,” in construing OCGA § 19-7-1 (c)). 10 Nevertheless, in this case, the Court of Appeals determined

that the application of these equitable principles was available only

to minor children and not to a decedent’s adult children. See Connell,

361 Ga. App. at 837-38. See also Northeast Ga. Med. Center, Inc. v.

Metcalf, 363 Ga. App. 676, 679 (1) (871 SE2d 454) (2022) (relying on

Connell to hold that decedent’s two adult children had no right to

bring a wrongful death claim where the decedent was survived by a

spouse, who was estranged from the decedent; lacked a relationship

with his son, who is one of the two children; was not the father of

the other child; and elected not to pursue a wrongful death claim).

We see no basis in the relevant case law, however, for drawing

such a distinction. Although Brown and the cases before Connell

each involved minor children, there is nothing in the language of

those cases or the equity statutes themselves to suggest that only

minor children may benefit from the equitable principles at issue

here. None of the cases based the application of those principles on

a consideration of the child’s minority. Although this Court

described the children in Brown as minors, there is no indication

11 that this Court’s analysis turned on that fact. Rather, we held that

the application of equity was necessary to preserve their rights

where they had “no remedy at law[ ] to maintain an action for the

wrongful death of their mother.” Brown, 261 Ga. at 215-16 (2) (b)

(emphasis omitted).

Moreover, the Act draws no distinction between minor and sui

juris children: it permits recovery to each on the same terms. In fact,

we addressed this question nearly a century ago when we construed

an earlier version of OCGA § 51-4-2 that permitted “minor or sui

juris” children to recover for their father’s homicide. See Peeler v.

Central of Ga. R. Co., 163 Ga. 784, 790 (2) (137 SE 24) (1927). In

Peeler, we noted that the statute had recently been amended to add

a right of recovery for sui juris children in addition to minor children,

and we reasoned that the amendment meant the statute now

permitted recovery to “all children without regard to actual

dependency, or the dependency which might be implied from

minority.” Id. See also Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796

(2) (471 SE2d 504) (1996) (when General Assembly amends a statute

12 to add new text, “we must presume that the legislative addition of

language to the statute was intended to make some change in the

existing law”).

We concluded therefore that the prior version of the wrongful

death statute gave an unqualified right of action “upon the sole

ground of [the] relationship existing between parent and child” and

that the question of dependency was “absolutely immaterial.” Peeler,

163 Ga. at 789-90 (2). Accordingly, the Court determined that the

decedent’s adult daughter could assert a claim for his wrongful

death. Id. We conclude here that the use of the same language in the

Act supports that no distinction may be drawn between minor and

adult children with regard to the right of recovery for wrongful

death.10

Hamon alleged that she is Dickens’s child and that Lisa

Dickens “refused” to bring a wrongful death action as the surviving

10 It also follows that Hamon’s failure to allege in her complaint that she

was dependent on Lisa Dickens was immaterial, and the Court of Appeals erred to the extent that it relied on that omission in reversing the trial court’s order. See Connell, 361 Ga. App. at 835. 13 spouse. Because the allegations of Hamon’s complaint do not

disclose with certainty that she would not be entitled under Brown

to pursue her wrongful death claim “under any state of provable

facts,” Hinson v. Roberts, 256 Ga. 396, 397 (349 SE2d 454) (1986),

the Court of Appeals erred in reversing the trial court’s denial of

Appellees’ motion for judgment on the pleadings.11 See, e.g., Brown,

261 Ga. at 214 (applying equity to allow decedent’s children to

pursue a wrongful death claim where children represented that

surviving spouse “has abandoned them; cannot be located; and

would not, in any event, pursue the claim for wrongful death,” and

court found that children thus had no legal remedy (emphasis

supplied)); Dorsey, 207 Ga. App. at 809-10 (2) (affirming trial court’s

exercise of equitable powers to allow minor child to bring wrongful

death claim where the surviving spouse had left the state with “no

11 For the same reasons, we also overrule Northeast Ga. Med. Center, 363

Ga. App. at 679 (1), which relied on Connell to hold that two adult children had no right to bring a wrongful death claim where the decedent was survived by a spouse, and we also disapprove of Parrish v. St. Joseph’s/Candler Health System, Inc., 364 Ga. App. 228, 238 (4) (874 SE2d 413) (2022), to the extent that it relied on Connell with approval. 14 intention of pursuing a wrongful death action” (emphasis supplied)).

Judgment reversed. All the Justices concur.

Decided February 7, 2023 — Reconsideration denied March 7,

2023.

Certiorari to the Court of Appeals of Georgia — 361 Ga. App.

830.

Howell Law Firm, Robert D. Howell, for appellant.

Coleman Talley, Gregory T. Talley, A. A. Howell IV, for

appellee.

Charles M. Cork III, John J. Park, Jr., Kenneth J. Lewis, amici

curiae.