                                                                          FILED
                 IN THE COURT OF APPEALS OF TENNESSEE                   January 20, 1999

                                                                       Cecil Crowson, Jr.
                                    AT KNOXVILLE                       Appe llate Court
                                                                            Clerk




ESTATE OF FRANK BAKER BY                     ) C/A NO. 03A01-9805-CV-00160
KENNETH BAKER,                               )
Administrator and Next of Kin,               ) SEVIER CIRCU IT
                                             )
       Plaintiff-Ap pellant,                 ) HON. JOHN TURNBULL,
                                             ) JUDGE
v.                                           )
                                             )
JOEL LEE MAPLES,                             ) VACATED
                                             ) AND
       Defendant-Appellee.                   ) REMANDED




PERRY P. PAINE , JR., PAINE, G ARRE TT & B RAY, M aryville, for Plaintiff-
Appellan t.

STEV EN E. M ARSH ALL, M ARSH ALL & DELIU S, Sevierv ille, for Defen dant-
Appellee.




                                      O P I N IO N


                                                        Franks, J.


              In this action for the wrongful death of Frank Baker, the Trial Judge

granted the defendant Joel Lee Maples summary judgment, and plaintiff has appealed.

               The circumstances giving rise to this action occurred on November 7,

1994, when Maples shot and killed Baker. Baker was married to Maples’ sister

Sandr a, and F rank an d Sand ra lived n ear M aples.

               Frank Baker’s son filed this wrongful death action against Maples as
Administrator and Next of Kin of the Estate of Frank Baker, alleging that Maples

carelessly and negligently killed Baker, and that he intentionally, wilfully, and

maliciously shot and killed Baker. After the action was filed, Baker’s surviving

spouse, Sandra, requested she be allowed to withdraw as co-administrator of the

Estate, which request was granted. Sandra then executed a release on August 30,

1995 for the sole consideration of ten dollars, relieving Maples of all liability for the

death of Frank Baker. In her deposition, Sandra testified that there were no

negotiation s about the a mount o f considera tion to be pa id. She said th at she told

Maples’ attorney that she would leave the amount up to his discretion, and when ten

dollars was suggested, she agreed to it. It appears from the record that Maples’

attorney had also petitioned the Court on behalf of Sandra to be relieved of her duties

as co-administrator of Baker’s Estate. This action was dismissed on the basis that

Sandr a had e xecute d a relea se wh ich wa s bindin g on all p arties.

                The issues on appeal are whether Sandra waived her right to pursue,

control and negotiate the wrongful death action under Tennessee Code Annotated

§20-5-106, and w hether she executed a bona fide com promise and v alid release for a

consid eration o f ten do llars to he r brothe r.

                If there are no disputed issu es of mate rial fact, summ ary judgm ent is

approp riate. Byrd v H all, 847 S.W .2d 208, 21 4 (Tenn. 1 993); see also Carvell v.

Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). To determine whether there is a genuine

issue as to m aterial facts, the C ourt mus t determine whether a reasonab le jury could

legitimately resolve those facts and favor one side or the othe r. If so, then summary

judgm ent is ina pprop riate. Byrd. In determ ining wh ether sum mary jud gment is

appropriate, courts must view the evidence in a light most favorable to the non-

movi ng part y, and a llow all r easona ble infer ences in that part y’s favo r. Id. “Courts

should grant summary judgment only when both the facts and the conclusions to be




                                                    2
drawn from th e facts p ermit a reason able pe rson to r each o nly one conclu sion”.

Carve ll, 900 S .W.2d at 26.

               It is beyond dispute that th e cause of a ction for w rongful de ath passes to

the deceased’s surviving spouse. T.C.A. §20-5-106(a). The statute further provides

that the “surviving spouse may effect a bona fide compromise in such a suit or right of

action and may execute a valid release which shall be binding upon all children of the

deceased or next of kin of the deceased.” T.C.A. §20-5-110(b) (1994). A surviving

spouse mainta ins con trol ove r the righ t of actio n until h e or she waive s that righ t.

Spitzer v. Knoxville Iron Co., 133 Ten n. 217, 180 , S.W.2d 163, 164 (1915); Foster v.

Jeffers, 813 S.W .2d 449, 45 1 (Tenn. A pp. 1991 ). The result re mains the same, ev en if

the spo use w aives h is or her r ight to ad ministe r the Es tate. Spitzer. A spouse may

mainta in contr ol over an actio n by eff ecting a comp romise . Foster, 813 S.W.2d at

453. Sandra did not waive her rights under the statute.

               The issue thus becomes whether there is disputed material evidence on

wheth er Sand ra’s relea se was “bona fide”.

               The record establishes that two days before Baker’s death, he and

Maples had a disagreement about a road that Baker was building and harsh words

were exchanged. Maples, in his deposition, testified he went to the Sportsmans Club

to target practice, and took two pistols, two rifles and a shotgun. On his way home he

stopped at a friend’s hous e, and the two of them went to the store to get som e beer.

They returne d to M aples’ h ome a nd arou nd 8:00 p.m., M aples to ok his fr iend ho me.

He then visited his brother and had drunk three or four beers at the time.

               Maples left his brother’s house after 11 p.m. to go home. About

halfway home he stopped and removed his .357 Magnum and two speed loaders from

the tool box in the back of his truck and placed them on the seat. He stated that he had

hit a bump near the pond by his brother’s house and remembered that the g un was in




                                                3
the tool box, so he removed it so it would not get scratched. This took place about

five hundred yards from Maples’ home. Maples continued toward home and observed

headlights coming up the new road. The vehicle stopped at the intersection blocking

Maples’ path and Maples stopped and turned off his engine. The vehicles were about

ten or twelv e feet apart. H e stated that B aker got ou t of the other v ehicle with a rifle

in hand and that he chambered the rifle as he came toward Maples. In response,

Maples loaded his pistol and Baker came around to the driver’s side of the truck and

opened th e door. A s Baker o pened the door, M aples rolled o ut of the truck while

firing the pistol at Baker. Baker fell face down and died.

               The autopsy report on Baker states the cause of death as homicide, and

noted six gunshot wounds to Baker’s body. The wounds went from the left side of the

body to the right in a downward trajectory. In response to defendant’s testimony,

plaintiff offered the testimony of a consultant in forensic sciences, which testimony

was supplemented, after reviewing Maples’ testimony. The consultant opined that

compa ring the phy sical eviden ce with M aples’ desc ription of the e vents, it was h is

opinion that Maples’ statement that he was in or exiting his vehicle when he shot

Baker was untrue due to the nature of the gunshot wounds.

               Although Sandra had withdrawn from the administration, she was acting

as a fidu ciary on behalf o f all the p laintiffs’ in terests w hen sh e exec uted the release .

We believe there is sufficient evidence from the surrounding circumstances and from

the inferences to be drawn in favor of the plaintiff to vacate the summary judgment

and rem and for a determ ination o f wheth er Sand ra effec ted “a b ona fid e com prom ise”.

The extent of her investigation into the facts is disputed. She released her blood

brother and there is material evidence that disputes her brother’s version of the

circumstances surrou nding the death of B aker.

               Accordingly, w e vacate the summ ary judgment an d remand for furthe r




                                                4
proceedings consistent with this opinion, with costs assessed to appellee.




                                          __________________________
                                          Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




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