       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE

                                                    FILED
CAROL D. SWANSON, as heir of        )                January 21, 2000
JAMES FRANKLIN HATCHER,             )               Cecil Crowson, Jr.
deceased, and for the benefit of    )              Appellate Court Clerk
WILLIE MAE HATCHER, widow,          )
                                    )      Davidson Circuit
       Plaintiff/Appellant,         )      No. 98C-2464
                                    )
VS.                                 )
                                    )      Appeal No.
LARRY C. PETERSON, and              )      M1999-00241-COA-R3-CV
ALL AMERICAN BOTTLING CO., INC., )
d/b/a ROYAL CROWN BOTTLING CO.,     )
a/k/a R.C. CANADA DRY BOTTLING CO., )
                                    )
       Defendants/Appellees.        )



     APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
                  AT NASHVILLE, TENNESSEE

               THE HONORABLE WALTER C. KURTZ, JUDGE



For Plaintiff/Appellant:                For Defendants/Appellees:

Lloyd T. Kelso                          Wendy Lynne Longmire
Lloyd T. Kelso & Associates             Joseph M. Huffaker
Nashville, Tennessee                    Ortale, Kelley, Herbert & Crawford




                   AFFIRMED AND REMANDED




                                        WILLIAM C. KOCH, JR., JUDGE
                                       OPINION

          This appeal stems from two wrongful death suits involving the death of the same
person. Both suits were filed in the Circuit Court for Davidson County, the first by the
decedent’s daughte r and the second by the decedent’s widow. The trial court granted the
common defendants’ motion to dismiss the daughter’s suit on the ground that the widow has
a superior righ t to maintain a wrongful death action. On this appeal, the daughter asserts that
she has a statutory right to continue her wrongful death action despite the filing of the
widow ’s suit. We d isagree and , therefore, affirm the trial court.


                                                I.


          James Franklin Hatcher, an 84-year-old resident of McEwen, and his wife, Willie Mae
Hatcher, were sev erely injured in a violent collision with a soft drink truck at the Charlotte
Avenue exit of Interstate 40 on Nov ember 2 1, 1997. H e died of the injuries receiv ed in the
collision on D ecemb er 1, 1997. In addition to his widow, Mr. Hatcher was survived by an
adult da ughter by a for mer m arriage , Carol D . Swan son of E upora, M ississipp i.


          Mr. Hatcher left a will appointing James Robert Gibbs, a son-in-law, as his executor,
and the Probate Cou rt for Humph reys County du ly appointed M r. Gibbs executor in Jan uary
1998. Ms. Swanson, fearing that she would somehow be prevented from receiving her
rightful share of her father’s estate,1 hired a Te nnessee law yer to repres ent “her interest in
her father’s recent death.” On January 2 1, 1998, the estate’s lawyer info rmed M s. Swanson’s
lawyer that Mr. Gibbs had “contacted the liability carrier for the other driver, but negotiations
are not ong oing at th is time.” Appr oxim ately on e mon th later, M s. Swanson’s lawyer
correspon ded directly with M r. Gibbs insis ting that he “w ould like to know if the estate of
James F. Hatcher will be pursueing [sic] a claim against the driver of the other vehicle.” In
a subsequent telephone conversation, Mr. Gibbs informed Ms. Swanson’s lawyer that “we
do not need a lawyer at this time.”


          Approx imately seven months elapsed with no communication between Ms. Swanson
or her lawyer and Mr. Gibbs or Ms. Hatcher. For some reason not apparent in the record,
Ms. Swanson became convinced that neither Mr. Gibbs nor Ms. Hatcher were doing enough
to pursue the wrongful death claim against the driver and the lessee of the truck that collided
with the Hatch ers’ autom obile. Accordingly, on September 4, 1998, Ms. Swanson filed a
wrongful death su it in the Circuit Court for Davidson County against the lessee and driver
of the soft drink truck. Two months later, apparen tly when a satisfactory se ttlement co uld
not be reached, Ms. Ha tcher and M r. Gibbs filed their own suit against the sa me defe ndants
in the Circuit Court for Davidson County, seeking to recover no t only for the death of M r.
Hatcher but also for the injuries a nd other dama ges sustained by M s. Hatcher.



   1
       The pleadings indicate that Mr. Hatcher and Ms. Swanson may have been estranged.

                                              -2-
       None of the parties attempted to consolidate the two suits.2 Rathe r, faced with two
suits seeking recovery for the wrongful death of Mr. Ha tcher, the defe ndants m oved to
dismiss Ms. S wans on’s su it, assertin g that M s. Hatcher’s right to ma intain the w rongful de ath
action was superior to Ms. Swanson’s. Ms. Swanson responded that she had a statutory right
to pursue the wrongful death claim and that Ms. Hatcher and Mr. Gibbs had waived their
right to maintain the wrongful death action because of their delay in filing it. Following a
hearing, the trial court dismissed M s. Swanson’s co mplaint after finding that Ms. Hatcher
had “priority” to pursue the wron gful death c laim and th at she had n ot waived her right to
do so. Ms. Swanson has appealed from that decision.


                                                 II.
            T HE S URVIVING S POUSE’S P RIORITY IN W RONGFUL D EATH C ASES


       Wrongful death actions were unrecognized at common law. See Wha ley v. Catlett,
103 Tenn. 34 7, 352, 53 S .W. 131 , 133 (189 9); Hall v. Nashville & Chattanooga R.R., 1
Tenn. Cas. (S hanno n) 141 , 144 (1 859). Accordingly, they are purely creatures of statute, see
Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 596-97 (Tenn. 1999), and are
intended to preserve the deceased’s own cause of action against the wrongdoer for damages
from injuries s ustaine d in the d eath-ca using a ct. See Memphis St. Ry. Co. v. Cooper, 203
Tenn. 425, 431 -32, 313 S .W.2d 4 44, 447-4 8 (1958); Rogers v . Donelson-Hermitage
Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn. C t. App. 1990). 3 Wrong ful death su its
may only be brought by the statutorily-designated persons:                the deceased’s personal
representative, the deceased’s surviving spouse, or, if none, then the deceased’s children or
other n ext of k in. See Tenn. Code Ann. § 20-5-10 7(a) (1994).


       Ms. Swans on is correct that the wrongful death statutory scheme allows a child of the
deceased to sue for a parent’s wrongful death.4 As she points out, a suit for a p erson’s
wrongful death does not lie solely with the survivin g spou se. See Brown v. Selby, 206 Tenn.
71, 78, 332 S.W.2d 1 66, 169 (1 960). Tha t, howeve r, does not an swer the q uestion this
appeal presents. W e must decide w hether where two sepa rate suits have bee n instituted to
address a single wrongful death — one by a surviving child and one by the surviving spouse
— the trial court m ay dismiss one of the suits in favor of the other.



  2
   Ms. Swanson mentioned in her response to the motion to dismiss that the court “should consider
the consolidation of the actions for trial.” However, as far as this record shows, she never made a
written or oral motion to consolidate. Every lawyer knows, or should know, that all applications to
the court for an order must be in the form of a motion. See Tenn. R. Civ. P. 7.02(1). Unless they
are made during a hearing or trial, they must be in writing and must state with particularity the
grounds therefor. We do not consider an off-hand statement such as this one, tucked away in the
body of a memorandum of law, to be a motion.
  3
    The Tennessee Supreme Court has described the action as a “hybrid” because it also allows the
deceased’s surviving immediate family to recover their own damages, such as loss of consortium,
arising from a wrongful killing. See Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d at 598, 601-
02.
  4
   “The action may be instituted by . . . the children of the deceased . . ..” Tenn. Code Ann. § 20-5-
107(a).

                                                -3-
       No matter how many suits parties may file to address an allegedly wrongful death,
Tenn. Code Ann. §§ 20-5-106, -07 (1994 and Supp. 1999) contemplate only one cause of
action. See Jamison v. Memphis Transit Management Co., 381 F.2d 670, 673 (6th Cir.
1967); Matthew s v. Mitche ll, 705 S.W.2d 657, 660 (Tenn. Ct. App. 1985). Accordingly,
multiple actions for a single wrongful death cannot be mainta ined. See Matthew s v. Mitche ll,
705 S.W.2d at 660; and see g enerally National Cordova Corp. v. City of Mem phis, 214 Tenn.
371, 382, 380 S.W .2d 793, 798 (196 4) (discussing how a single tort can support but one
action for the damage s); Southern Ry. Co. v. Brubeck, 6 Tenn. App. 493, 501-02 (1927)
(discussing the principle of a single ac tion and a single recovery ).


       Ms. Swanson, as Mr. H atcher’s child , permissibly filed a wron gful death la wsuit.
Howeve r, two lawsuits ongoing simultaneously to enforce a single cause of action is not
permissible. Where wrongful death actions conflict and overlap, the surviving spouse has
the prior and superior right to bring and maintain the wrongful death litigation. See Baker
v. Maples, 995 S.W.2d 114, 115 (Ten n. Ct. App . 1999); In re Estate of Dobbins, 987 S.W.2d
30, 36 (Tenn . Ct. App. 1 998); Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn . Ct. App. 1991).
In terms of priority, the spouse’s action trumps the others.


       A lawsuit may originally pre sent a pursu able cause of action w hen filed, ye t if before
adjudication it loses that character, it is the co urt’s du ty to dism iss it. See Dockery v.
Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977). The decision to dismiss an action,
where the movant demonstrates grounds for dismissal, lies within the trial court’s discretion.
See Roebuck v. City of Aberdeen, 671 So.2d 49, 50 (Miss. 1996); Gold Reserve Corp. v.
McCa rty, 744 P.2d 160 , 162 (Mont. 198 7). Ms. Swan son’s properly filed wrongfu l death
suit became duplicative once Ms. Hatcher filed suit. Given that Ms. Hatcher’s action, by
law, had priority, the trial court did not abuse its discretion in granting the defendants’
motion to dismiss M s. Swans on’s suit. 5


                                               III.
                 M S. H ATCHER’S W AIVER OF H ER R IGHT TO P URSUE THE
                                  W RONGFUL D EATH C LAIM


       Ms. Swanson also argues that she should be entitled to pursue her suit because Ms.
Hatcher waive d her rig ht to sue for her la te husb and’s w rongfu l death. T he trial court
disagreed, and so do we.




   5
    These two cases could have been consolidated had Ms. Swanson filed an appropriate Tenn. R.
Civ. P. 42.01 motion. See, e.g., Matthews v. Mitchell, 705 S.W.2d at 660. Granting the motion, had
it been filed, would have been in the trial court’s discretion. See Timmons v. Rainey, 55 S.W. 21,
29 (Tenn. Ch. App. 1899). We will, however, not put the trial court in error for not granting a
motion never made. Even if the trial court had consolidated the two cases, it would have still been
required to choose either Ms. Hatcher or Ms. Swanson as the proper party plaintiff to proceed with
the case. See Matthews v. Mitchell, 705 S.W.2d at 660. The dismissal of Ms. Swanson’s complaint
accomplished the same result.

                                              -4-
       Waiver is the vo luntary relinqu ishme nt of a k nown right. See Hicks v. Cox, 978
S.W.2d 544, 550 (Tenn. Ct. App. 1998). As Ms. Swanson points out, inaction inconsistent
with asserting a known right can co nstitute w aiver, see Jenkins Subway, Inc. v. Jones, 990
S.W.2d 713, 722 (Tenn. Ct. App. 1998), and a surviving spouse ca n, by inaction , waive his
or her superio r right to prose cute a suit for wrongful death. See Foster v. Jeffers, 813 S.W.2d
at 453; Matthew s v. Mitche ll, 705 S.W .2d at 663. H oweve r, we have expressly o bserved in
another decision that the surviving spouse retains and does not waive a wrongful death action
if the spouse “bring[s] the wrongful dea th action himself [or herself] . . ..” Foster v. Jeffers,
813 S.W.2d at 453.


       That happene d in this case. Within the statute of limitations, M r. Hatcher’s surviving
spouse filed suit for his allegedly wrongful death. It makes no difference that she and the
personal representative filed the suit right before the s tatute of limitatio ns wou ld otherwise
have run; the lawsuit was filed timely . Cf. genera lly McKim m v. Bell, 790 S.W.2d 526, 531
(Tenn. 1990) (statin g that plaintiffs c annot be penaliz ed for filing suit on the last day the
claim was viable).


       Ms. Swanson bore the burden of proving waiver by a preponderance of the evidence.
See Koontz v. Fleming, 17 Tenn. App. 1, 8, 65 S.W.2d 821, 825 (1933). She may have
proved that Ms. H atcher wa s dilatory, but she did not prove that Ms. Hatcher, in the end,
relinquished her prerogative to pursue the driver and the lessee of the truck involved in the
November 21, 1997 collision.


                                               IV.


       As a final matter, Ms. Swanson attempts to use this appeal to ensure that she receives
a distribution from any ultimate wrongful death recovery. She argues that she, as the sole
child of the decedent, is entitled to an intestate share of proceeds from any wrongfu l death
judgme nt. The trial cou rt in merely dismissing her suit without prejudice d id not adjud icate
any issue of whether or how she should share in any wrongful death recovery. At this point
that is purely an abstract question for the future.


       Other than interlocutory appeals granted by this court, parties norm ally may o nly
appeal from a final jud gmen t, see Boyce v. Williams, 215 Tenn. 704, 713, 389 S.W.2d 272,
276 (1965), where the trial court has done everything to determine the parties’ contested
rights. See Emplo yers’ Indem . Co. v. Willard, 125 Tenn. 288, 290, 151 S.W. 1029, 1030
(1911). The appellate courts will not pre-emptively decide issues not litigated in the trial
court, see Lawrence v. Stanford, 655 S.W.2d 927, 929-30 (Tenn. 1983), nor issue advisory
opinions, see Super Flea Mkt. v. Olsen, 677 S.W .2d 449, 45 1 (Tenn. 1 984); McIntyre v.
Traughber, 884 S.W.2d 134, 137 (Tenn. C t. App. 199 4), nor rend er decisions on mere ly
abstract legal qu estions. See State ex rel. Lewis v. S tate, 208 Tenn. 534, 538, 347 S.W.2d 47,
49 (1961). Ms. Swanson’s arguments regarding her share in any eventual re covery at th is



                                              -5-
point are based o n nothing more tha n speculatio n. They p resent noth ing more than an
abstrac t legal qu estion. A ccordin g, we p reterm it discus sion of th is issue.




                                                 V.


       We affirm the dismissal of Ms. Swans on’s wro ngful death action and remand the case
to the trial court for whatever further proceedings may be required. We tax the costs of this
appea l to Caro l D. Sw anson and he r surety f or wh ich exe cution, if necess ary, m ay issue .



                                                        ______________________________
                                                         WILLIAM C. KOCH, JR., JUDGE


CONCUR:


________________________________
BEN H. CANTRELL,
PRE SIDIN G JU DGE , M.S.



________________________________
PATRICIA J. COTTRELL, JUDGE




                                                -6-
