                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   February 15, 2002 Session

                  PERRY MARCH v. LAWRENCE LEVINE, ET AL.

                      Appeal from the Circuit Court for Davidson County
                        No. 99P-1676    Frank G. Clement, Jr., Judge



                    No. M2000-01955-COA-R3-CV - Filed March 17, 2003


This matter is a dispute between Absentee Janet March’s parents, Lawrence and Carolyn Levine, and
her husband, Perry March. The case began as an in rem battle over the Absentee’s property after
Perry March opened an absentee estate following Janet’s disappearance. However, the Levines,
thirty-one months after the absentee estate was opened, asked to amend the proceedings and add a
claim for wrongful death against Perry March. The court allowed the amendment. Perry March
incurred citations for civil contempt of court, and the Levines were eventually granted a default
judgment as a result of his contempt. A judgment for $113,500,000.00 in damages was entered
against him. Perry March appealed. We find that the trial court abused its discretion in allowing the
wrongful death action, and we reverse the trial court. The default judgment for wrongful death and
the award for damages against Perry March are reversed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., joined.
JEFFREY F. STEWART , SP . J., filed a dissenting opinion.

John E. Herbison, Nashville, Tennessee, for the appellant, Perry March.

C.J. Gideon, Jr. and Margaret J. Moore, Nashville, Tennessee, for the appellees, Lawrence Levine and
Carolyn Levine, as Next Friends of Janet Levine March, as Next Friends of Samson March and
Tzipora March; Children Janet Levine March, and in their Individual Capacities.


                                             OPINION

       Much of the history of this protracted litigation can be gleaned from the opinion of this Court
in March v. Levine, No. 01-A-01-9708-PB-00437, 1999 WL 140760 (Tenn. Ct. App. March 17,
1999), the opinion of the United States District for the Middle District of Tennessee in March v.
Levine, 136 F. Supp. 2d 831 (M.D. Tenn. 2000), and the opinion of the United States Sixth Circuit
Court of Appeals in March v. Levine, 249 F.3d 462 (6th Cir. 2001).
       Perry March and Wife, Janet Levine March, are parents of two minor children, Samson and
Tzipora March. Lawrence and Carolyn Levine are the parents of Janet Levine March and the
maternal grandparents of the two minor children.

       Janet Levine March disappeared on August 15, 1996. Perry March, a Nashville lawyer, soon
became the subject of an intense investigation into his wife’s disappearance. The body of Janet
Levine March (assuming her to be deceased) has never been found.

       The seed of this litigation, which was destined to mushroom into a figurative giant sequoia,
was planted by Perry March on October 30, 1996 when he filed, in the Probate Court for Davidson
County, Tennessee, a Petition for Summary Relief pursuant to Tennessee Code Annotated section 30-
3-203 seeking the transfer to him of two bank accounts totaling $4,770.19, held by Union Planters
National Bank in the name of Janet Levine March.1

       Title 30 Chapter 3 of Tennessee Code Annotated entitled Absentee’s Estates is codified in two
sections, the first section being the Uniform Absence as Evidence of Death and Absentees’ Property
Law originally enacted as Chapter 102 of the Public Acts of 1941. Tenn. Code Ann. § 30-3-101 to
114. Part two, entitled Conservators, is derived from Chapter 785 of the Public Acts of 1972 (adj.
S.). Tenn. Code Ann. § 30-3-201 to 210.

         Tennessee Code Annotated section 30-3-203 provides for the transfer of property without
conservatorship to the spouse or next of kin of any “absentee” as defined in section 30-3-201 of the
Code, where the property has a gross value of less than $5,000. An “absentee,” as applicable in this
case, is defined as “[a]ny resident of this state, or any person owning property herein, who disappears
under circumstances indicating that he may have died, either naturally, accidentally or at the hand of
another, or may have disappeared as the result of mental derangement, amnesia or other mental
cause.” Tenn. Code Ann. § 30-3-201(2)(1984).

        Although Code section 30-3-203 authorized the court to make the transfer of these accounts
without notice or a hearing because the accounts contain less than $5,000, the court, nonetheless, set
a hearing and notified the Levines. On November 6, 1996, Lawrence and Carolyn Levine filed an
intervening petition in the probate court as next friends and parents of Janet Levine March and
grandparents of Samson and Tzipora March in which they denied that Perry March was entitled to
summary relief under section 30-3-203 of the Code and asserted:

        4.      The Absentee has been missing since August 15, 1996. Despite an intense
        search, the governmental authorities have been unable to locate her. According to
        public statements of the Metropolitan Police Department, the Petitioner is the only
        known suspect in her probable death. Contrary to the signed pleadings of Petitioner


         1
                    This petition also so ught the transfer to Perry M arch o f custod ial rights in two other accounts at Union
Planters National B ank he ld pursuant to Tennessee Uniform Transfer to Minors statutes. These accounts are not material
to the issues in the case.

                                                             -2-
       that Petitioner has searched for his wife, he has in fact made no public efforts to search
       for her and he has impeded the police investigation by refusing to have any
       communication or discussion with the Metro Police; he has refused to answer any
       further questions or meet with them after their initial investigation or help search for
       her.
               In sworn testimony taken in the cause of No. 9619-29147, Lawrence Levine
       and Carolyn Levine v. Perry March, Juvenile Court of Davidson County, Tennessee,
       he has refused to answer any questions regarding the disappearance of his wife on the
       grounds that it would tend to incriminate him under the 5th Amendment of the
       Constitution of the United States; he has refused to answer any questions regarding
       her disappearance or her probable death, and he has not cooperated with anyone in the
       search for her.
               5.       The two accounts described are accounts belonging to Janet Gail
       Levine March, his spouse, and if he is the person who has committed a homicide with
       regard to her, he cannot receive or inherit any property by virtue of T.C.A. § 31-1-106.
       Pursuant to T.C.A. § 31-1-106, if Perry A. March shall have been the person who
       killed or conspired to kill or procured to be killed Janet Gail Levine March, in that
       event he could not receive any part of the money owned by Janet Gail Levine March.
       The money that belongs to her should be held by the Public Guardian Ronald Nevin,
       an independent neutral party, or some other neutral party, as conservator under T.C.A.
       § 30-3-202 or T.C.A. § 30-3-204 for her benefit until further facts and circumstances
       be established as to her disappearance or death.
               ....
               1.       The Petitioner has unclean hands, for he refuses to divulge to any
       appropriate governmental body or the courts of this state the facts and circumstances
       regarding the disappearance of his wife, Janet Gail Levine March.
               2.       Pursuant to T.C.A. § 31-1-106, Petitioner could not inherit or hold
       funds belonging to her or be an appropriate fiduciary for his two minor children, if he
       be guilty under said statute.
               3.       The Petitioner is not residing at the home at 3 Blackberry Road,
       Nashville, Tennessee, 37215, the phones have been disconnected, the door locks have
       been changed, and he apparently is spending a great deal of his time in Illinois and
       may not be subject to process under the State of Tennessee.
               4.       As a matter of equity, the Court should freeze the funds of Janet Gail
       Levine March and the two minor children until such time as all facts and
       circumstances regarding her disappearance, her possible death, and the relationships
       of Janet Gail Levine March, Perry A. March and the two minor children be fully
       established.

       At this point, we interrupt the chronological narrative in order that the reader may understand
the context in which subsequent events have occurred and recognize the enormity of the task
confronting the trial court.



                                                  -3-
THE ACRIMONIOUS RELATIONSHIP BETWEEN THE PARTIES

        Lawrence and Carolyn Levine are convinced beyond any reasonable doubt that on August 15,
1996 Perry March murdered his wife, Janet Levine March, and disposed of her body thereby
depriving them of a daughter and depriving their grandchildren of a mother. With equal fervor, Perry
March denies any involvement in the disappearance of Janet March and denies that she is deceased.
The resulting antagonism between the parties permeates every phase of this litigation and shows no
sign of ever abating.

       The trial court, more than five years ago in its order of September 10, 1997, clearly recognized
what was happening and warned of the dire consequences that would result to the absentee Estate of
Janet March if the litigious behavior of the parties continued.

               The funds available at the time of the hearing, August 15, 1997, after payment
       of the mortgage but prior to payment of any of the fee requests is approximately
       $320,000, will be quickly depleted unless substantial changes occur in the litigious
       protocol established by Mr. March and the Levines.
               The Court agrees with all parties that the fees at issue are more than substantial
       and is most concerned that the intensely contested proceedings, being the obvious and
       direct result of the animosity between Mr. March and the Levines and with almost
       every issue being vigorously contested, will deplete the resources of the Absentee’s
       estate within a few months unless Mr. March and the Levines cease, or at least
       substantially minimize, the intense litigation that has become the norm in this most
       tragic case.
               The Uniform Absence as Evidence of Death and Absentees’ Property Act (the
       “Absentee Act”) was enacted to provide for an orderly management of the affairs of
       persons who have disappeared, leaving families and property. As long as it is
       unknown whether the absentee be living or dead, rights must remain uncertain yet
       property must be managed. As stated by the National Conference of Commissioners
       on Uniform State Laws in its prefatory note at the time the Absentee Act was
       approved:
               It is unthinkable - the situation intolerable - where in case of an
               absentee, with absence unexplained, continuous, unheard of, leaving
               a family to be supported, debts to be paid and collected, life insurance
               to be paid, business to be carried on, etc., that there be no law for the
               ascertainment of rights and the distribution of property. The situation
               calls for a remedy and this Act provides it.
       Uniform Absence as Evidence of Death and Absentees’ Property Act, 8A U.L.A. 1
       (Master ed. 1993).
               Though the Conservator is admirably performing his duties, his efforts to
       preserve the estate and his willingness to evaluate the need for and to provide financial
       support for the Absentee’s dependents (if and when it is pursued in the proper fashion
       and with the requisite proof of need for support) are clearly being complicated by the


                                                  -4-
       differences between the Levines and Mr. March. One of the more important purposes
       of the Absentee Act, to provide financial support for dependents, is particularly being
       frustrated by the acts and omissions of Mr. March. Mr. March has twice filed a claim
       for dependent support yet he has twice voluntarily dismissed the claims prior to the
       hearing. His acts, i.e. being litigious about most everything in these proceedings
       (though he is not alone in this area), and his election to repeatedly file and dismiss
       claims for support for himself or his children, present a troubling scenario that may
       result in the children receiving no financial support from their mother’s Absentee
       estate.
                One can foresee a disturbing result if there is no change. In the not too distant
       future, the [estate in this case] will be depleted without the dependents receiving any
       support as contemplated in the Absentee Act. Thereafter, the Court will likely be
       faced with a petition to sell the personal property of the Absentee, many of which are
       cherished personal possessions. If such should occur, the strong feelings and
       difficulties presented with the sale of the real estate will pale in comparison to the
       feelings likely to erupt with the sale of personal property of Janet Levine March.
                Such consequences must be avoided if at all possible and this Court intends
       to be proactive in anticipation of and to endeavor to prevent such a regrettable and
       avoidable event.
                The acts and omissions of Mr. March, along with other factors, may cause all
       who participate in these important proceedings to be viewed with disdain by those
       who wonder who was looking after the children’s interest while the money was being
       spent. There is no doubt whatsoever that Mr. March loves his children. There is no
       doubt whatsoever that Lawrence and Carolyn Levine love their grandchildren. There
       is no doubt that the Conservator is admirably performing his duties. Nevertheless, the
       incessant legal battles between Mr. March and the Levines will exhaust the estate of
       the Absentee in short order unless a substantial change occurs.

        However unfavorably this record reflects upon Perry March, one vital fact remains
unchallenged. He has never been convicted of anything. In the eyes of the law, through which eyes
alone this Court, and all other courts, must view the unfolding scene, Perry March is innocent of the
charges leveled against him by the Levines and will remain so unless and until he is indicted, tried
and convicted of such charges. Being overbearing and obnoxious, as well as in repeated civil
contempt of court, does not equate to criminal conviction. The decision of this Court is made after
careful consideration of the issues and not because of Perry March, but in spite of him.

       Returning to the narrative, Judge Clement heard the original Petition of Perry March and the
Intervening Petition of Lawrence and Carolyn Levine on November 6, 1996, and immediately
recognizing the hostility between the parties, declared Janet Levine March to be an “absentee” within
the provisions of Tennessee Code Annotated Title 30. He also appointed Honorable Jeff Mobley of
the Nashville Bar as conservator of the absentee’s estate of Janet Levine March.




                                                  -5-
        This Order, entered November 12, 1996, began thirty-one months of what can only be
described as trench warfare, with the Levines and Perry March fighting each other at every
opportunity while the conservator made valiant efforts to preserve the ever diminishing estate of the
absentee and the trial court sought in vain to control the proceedings. Respite for the absentee estate
came on July 16, 1999, when the Levines changed course through an Amended Intervening Petition
and Cross-Claim asserting, for the first time, a claim against Perry March for the wrongful death of
Janet Levine March. It is this Amended Intervening Petition and Cross-Claim that forms the basis
of the present appeal.

       In order for the ruling of this Court to be clearly understood, it is necessary to recount, as
concisely as possible, the events that occurred between the appointment of the conservator on
November 12, 1996, and the filing of the Amended Intervening Petition and Cross-Claim on July 16,
1999.

        The original transcript, filed in this Court pursuant to designations of counsel for Perry March,
discloses that Mr. March was allowed to dismiss his claims filed under Tennessee Code Annotated
section 30-3-203 by order of December 9, 1996. On January 16, 1997, Perry March filed, pro se, a
claim for “an undivided, absolute and uncontested marital interest in all of the Property of his wife,
Absentee Janet Gail Levine March, including, but not by way of limitation, all real property, personal
property, tangible property, intangible property, contingent or actual in nature and extent.” On August
13, 1997, the Levines filed a Petition seeking to hold March in contempt of court for failure to deliver
personal property of the Levines to them at his home in Chicago, Illinois as required by previous order
of the court, and on September 8, 1997, the Levines filed a Supplemental Motion for Sanctions for
his willful refusal to continue with his discovery deposition as well as a Supplemental Petition to
Hold March in Contempt of Court for failure to deliver to the Levines personal property pursuant to
orders of the court.

        By order entered September 10, 1997, the court approved fees for the conservator, including
within the order his prophetic admonition to the Levines and March about litigious dissipation of the
absentee estate.

      On September 17, 1997, March filed his Answer to Charges of Contempt and for Sanctions.
On September 23, 1997, the Levines filed their Answer to the Response of March.

       All pending matters were heard by the trial court on September 24, 1997, where upon the court
continued contested matters until October 28, 1997 because of a conflict affecting Mr. March. The
Order entered subsequent to the September 24, 1997 hearing provided in part:

                Counsel for the respective parties in interest also announced in open Court
        certain agreements regarding custody and ownership of items of personal property
        currently or formerly belonging to the Absentee, Janet Gail Levine March. These
        announcements and the Court’s action based upon such announcements are as
        follows:


                                                  -6-
         A.      Counsel for Perry March stated in open Court that Perry March is
withdrawing his objection to the claim of Lawrence Levine that he is the owner of the
“Two Lawyers” painting which was painted by the Absentee, Janet Gail Levine
March. Based upon such announcement and the agreement of the parties in interest
as announced by their counsel, the Court hereby declares that all right, title and
interest in that painting created by Janet Gail Levine March and titled “Two Lawyers”
be and hereby is vested in Lawrence E. Levine.
         B.       Counsel for Perry March announced in open Court that Mr. March is
moving to dismiss, voluntarily and with prejudice, his appeal from the Court’s Order
of July 21, 1997. In view of that announcement, and there having been no objection
stated to the dismissal of this appeal it is, ORDERED that said appeal be and hereby
is dismissed with prejudice with the costs of that appeal being divided equally
between Perry March and the Estate of the Absentee, Janet Gail Levine March.
         C.       The Conservator announced in open Court an agreement among all
parties in interest that, subject to the applicability to such property of that Bailment
Agreement referred to in prior Orders of this Court and the execution by Mr. March
of an appropriate UCC-1 reflecting the fact that these articles remain the property of
the estate, Mr. March may have custody of the following items of personal property
of the Absentee:
                  1.     The bag of lace tablecloths and doilies as referred to in Item 7
of Exhibit A to March’s “Motion to Tender Certain Items of Personal Property,” etc.
                  2.     The “linens” as referred to in Item 8 of Exhibit A to Mr.
March’s Motion. (It was expressly agreed that Mr. March would not receive the quilt
referred to in Item 8 but only the “linens.”)
                  3.     Two Mezzuzahs which were formerly located at the home on
Blackberry Road where Perry March and the Absentee formerly resided, as referred
to in Item 12 on Exhibit A to Mr. March’s Motion.
                  4.     Two light fixtures which were formerly located at the home on
Blackberry Road where Mr. March and the Absentee formerly resided as referred to
in Item 12 of Exhibit A to Mr. March’s Motion.
                  5.     A drawing of a man at a dessert cart.
                  6.     A framed article from a magazine showing the drawing of the
man at the dessert cart.
                  7.     Those pictures from the wedding of Janet March and Perry
March which depict Perry March and/or members of his immediate family but no
other pictures from that wedding.
         With the exception of these enumerated items of personal property as to which
the parties have agreed that Perry March may have custody, the relief sought by Perry
March in his “Motion to Tender Certain Items of Property,” etc. referred to above is
found by the Court not to be well-founded and is hereby denied.
         Based upon the Conservator’s request in open Court, the Court instructs the
Conservator that, with the exception of the Absentee’s business records, the
Conservator may deliver all items of the Absentee’s personal property which the


                                          -7-
Conservator still possesses and which are not otherwise dealt with in this Order, to
Lawrence and Carolyn Levine to be held by them pursuant to the terms of the
pertinent Bailment Agreement.
        Based upon the Conservator’s request in open Court, and without objection
having been made by any party, the Court instructs the Conservator that, with respect
to those items of personal property set forth in Exhibit B to the Conservator’s Report
and Recommendation, filed June 26, 1997 and addressed in Paragraph 3 of the court’s
July 21, 1997 Order the Conservator may dispose of those items as he sees fit,
including but not necessarily limited to donating those items to charitable
organizations or needy persons. In that regard the Court finds that Perry March has
failed to take possession of those items and remove them from storage at his expense
within the time allowed for those purposes in this Court’s July 21, 1997 Order.
        Except as expressly set forth herein the disposition of the Absentee’s personal
property provided for in the Court’s Final Order of July 21, 1997 shall not be affected.
        Counsel for the parties in interest stated in open Court that, with the exception
of certain items of children’s cutlery discussed below, all of those items of personal
property listed on Exhibit A to the Conservator’s Report and Recommendation under
the headings “Carolyn’s/Larry’s” or “Mark’s” will be delivered by Perry March to the
residence of Lawrence and Carolyn Levine in Deerfield, Illinois on October 6, 1997
at 10:00 a.m. local time in Deerfield, Illinois. Based upon the agreement of all parties,
it is ORDERED that Perry March will bring such items of the children’s cutlery
shown on Exhibit A in the Conservator’s Report and Recommendation with respect
to which he believes he should retain possession with him to the hearing which has
been scheduled before this Court at l0:00 a.m. on October 28, 1997. At that hearing,
the Court will hear evidence and determine what party is entitled to ownership and
possession of these items of personal property.
        Counsel for Perry March further stated in open Court that Mr. March does not
have the Encyclopedia Britannica owned by Dr. Howard Rosenblum which is listed
on Exhibit A to the Conservator’s Report and Recommendation.
         Based upon the statements of counsel in open Court, the Court finds that
Lawrence and Carolyn Levine have exercised their right as provided for in the Court’s
July 21, 1997 Order to request that documents, scrapbooks or memorabilia belonging
to the Absentee and in the custody of Perry March in Illinois be made available to
them for copying at their expense. The Court therefore ORDERS that Perry March
make such property available to the Levines for such purpose not later than October
15, 1997. Such property includes but is not necessarily limited to those items
contained in boxes marked “Kit Desk #1,” “Kit Desk #2,” and “Box #3" on page 2 of
Exhibit A of the Conservator’s Report and Recommendations. To such extent as the
Levines wish to request access to other items in Mr. March’s custody they will
provide Mr. March’s attorney with a list of such items in a timely manner.
         The Conservator stated in open Court that, with respect to those items set forth
on page 2 of Exhibit A to the Conservator’s Report and Recommendations (other than
the 1996 Volvo 850) Perry March has complied with the requirements set forth in


                                          -8-
       Paragraph 2 of the Court’s July 21, 1997 Order that he list specifically which of those
       items he is retaining and how they are being used or displayed. The Court accordingly
       instructs the Conservator to permit Perry March to retain custody of those items
       pursuant to the terms of the Bailment Agreement which he has executed.

       On October 22, 1997, an Amended and Supplemental Petition by the Levines was filed
seeking to hold Perry March in contempt of court relative to the delivery of certain personal property
and asserting:

               1.     The quilt delivered was not the cross-stitched baby quilt described.
       Another quilt was delivered which was the wrong one and will be returned to Mr.
       March.
               2.     The bag delivered was not the black-beaded evening bag described.
       Another bag was delivered which was the wrong one and will be returned to Mr.
       March.
               3.     The Mind over Platter Cookbook was not delivered.
               4.     The two photo albums had many pictures taken out and left blank.
               5.     With respect to the furniture belonging to Mark Levine, a drawer from
       the antique secretary was shattered and broken in places.
               6.     The matching vanity dresser had a piece of wood broken off.
               7.     The wooden footstool was not delivered.
               8.     The encyclopedias were not delivered.

       The Levines filed a Memo Brief regarding sanctions and contempt of court of Perry March
on December 8, 1997, after asserting the failure of Mr. March to complete his deposition. The Memo
contains the following:

       He was required by the Court to produce the Levines’ furniture in Chicago, Illinois,
       on August 5, by agreement as set out in a court order. He did not do so. He had
       previously shipped the Levines’ furniture down to Hammond, Indiana several weeks
       prior thereto. He obviously knew where it was and failed to reveal such. Instead, he
       had his brother send them a fax the day before the pick up date telling them to go to
       Hammond, Indiana to a strange place to pick up their furniture. The Levines should
       not be forced to go to a strange place in another state, when Mr. March had control of
       the items in his own household, and for his own unknown reasons had shipped them
       down to a commercial establishment in Hammond, Indiana.
               The contempt was clearly a failure to follow the court order, and secondly, he
       was trying to force them into picking up the furniture with a truck at another place.
       Subsequently, after he was required by the court order of September 24 to have the
       furniture delivered to the Levines at their condo in Deerfield, Illinois he did not
       deliver certain items in good condition and he delivered several items that were not
       correct. Even though a supplemental petition was filed setting forth what happened,
       he has never tried to produce the correct items, nor has he offered to pay for the


                                                 -9-
       damage that was (apparently) created by the shipment down to Indiana and the
       shipment back from Indiana. He tries to excuse his conduct on the basis that he saw
       or may have seen the shipment after it came back from Indiana, but his testimony was
       so confusing on this point that it is not worthy of belief. He had the items picked up
       and moved to another state and re-returned at his own risk and yet he never did try to
       inspect to see if they were in good condition when brought back to Deerfield, Illinois.
       He has to bear the responsibility. Secondly, he has to bear the responsibility of not
       furnishing the correct items after being warned in a supplemental petition that he still
       failed to comply. We believe these actions are all a part of a continuing pattern of
       willful contempt. His testimony is attached.
               Finally, he has yet to this date, turned over the kitchen boxes (kit boxes), with
       the items of great sentiment and memory, which he was ordered to produce for the
       Levines’ inspection and copying on September 24. His attorney, Ron March, was
       given two alternatives by letter of Harris A. Gilbert dated October 15. On December
       3, we received a fax indicating the items would be shipped soon, but they have not
       arrived.

       On January 26, 1998, March filed his Reply Memorandum Regarding Sanctions and Contempt
of Court. In this memorandum, Mr. March observes:

               There is also testimony that certain items that were finally delivered in a timely
       fashion were not in good condition, and Mr. March delivered several items that were
       not correct. The testimony of Mr. March under oath at the most recent hearing
       indicates that he delivered the items in the condition that they were given to him and
       that, again, he did not engage in any contemptuous conduct.
               The Petitioners base a substantial part of their argument that Mr. March has
       engaged in a continuing pattern of willful contempt. It is now acknowledged by all
       parties that the kit-boxes were timely delivered to the Petitioners, along with at least
       one or two items that did not appear by means of a good faith mistake in the earlier
       delivery of the property to Deerfield, Illinois. Any further hearings on this matter
       would also indicate that the kit-boxes remained in Mr. March’s attorney’s office for
       some time awaiting representatives of the Petitioners’ to give instructions as to where
       they should be delivered or to be picked up by the Petitioners.

        The Levines filed an Addendum response on February 11, 1998 to the Perry March brief
asserting, in part:

               In our original Brief, we pointed out the damage that had occurred with regard
       to the antique secretary and antique vanity desk belonging to the Levines. We
       overlooked the fact that these items were videotaped by the Levines in Chicago many
       months ago, long before Mr. March shipped them to Hammond, Indiana, and that he
       has the responsibility for delivering same back in good condition. He has not to this
       date offered to repair the damage or fix the items.


                                                 -10-
                Although the “kit boxes” have been sent to Jeff Mobley, the following items
       are still in Mr. March’s possession after he was at the last court hearing and warned
       to return same to the Levines:
                A.      Black-beaded evening bag with multi-colored flowers
                        belonging to Mrs. Levine.
                B.      The cross-stitched baby quilt with nursery rhymes
                        hand-sewn by Janet’s grandmother.
                C.      A wooden footstool with woven twine top.
                D.      It is still unexplained as to what happened to the
                        Encyclopedia Britannica.

        On July 15, 1998, the trial court entered an extensive Memorandum Opinion and Order
finding Perry March in civil contempt of court relative to the delivery of personal property, observing:

               This Court finds the specific instances referenced above to be but a few
       examples of Mr. March’s consistent noncompliance with court orders in this case.
       Furthermore, this Court finds that Mr. March’s attempts to explain his failure to
       comply with the July 21 Order unsatisfactory and unconvincing. The Court further
       finds these events to constitute a troubling and consistent pattern of contemptuous
       conduct, of which there is clear and convincing evidence to conclude that Mr. March
       is in contempt of Court. Sadly, in a case where the Court has already commented on
       the detrimental effect of high litigation costs on the Absentee’s estate, Mr. March’s
       conduct has had the effect of turning a relatively simple matter, (e.g., the return of
       specifically described personal property, on a specific date, at a specific time, at a
       specific location) into a very protracted and intensely litigated affair.

        In the same Order, the court imposed T.R.C.P. Rule 37 sanctions against Mr. March because
of his behavior during the course of his deposition and his action in terminating the deposition by
walking out. Considering the entirety of this order of July 15, 1998, it is an understatement to observe
that the trial court found Perry March not to be a credible witness. On January 20, 1999 the court
entered an Order finding Mr. March to be in civil contempt of court and fined him $50 per day until
“Perry A. March returns to the Levines the beaded bag, and the hand-stitched quilt belonging to the
Levines. Said judgment shall also continue until Perry A. March pays the appropriate sum to the
Levines for the repair and refinishing of the Levines’ furniture, which Perry A. March damaged.”

       Such is a condensed synopsis of the original transcript filed under designation of Appellant
covering the thirty-one month period between the appointment of the conservator and the filing of the
Amended Intervening Petition and Cross-Claim asserting a wrongful death action against Mr. March.

       Under designation of the Levines, a Supplemental Record was filed on appeal adding
additional documents to the record, which are described in the supplemental transcript as follows:




                                                 -11-
        1.      11/15/96 Affidavit of Harris Gilbert setting forth Defendant March’s
refusal to appear for his deposition while in Nashville;
        2.      Levines’ 11/15/96 Motion for Sanctions against Defendant March,
including letter dated 11/6/96 and deposition pages, regarding Defendant March’s
refusal to appear for his deposition while in Nashville;
        3.      Defendant March’s 11/22/96 Motion to Terminate Deposition,
including Affidavit, and 11/27/96 Order requiring Defendant March’s attendance at
deposition;
        4.      12/23/96 Order awarding sanctions against Defendant March for failure
to attend deposition;
        5.      Exhibit 8 to Court hearing of 2/14/97 filed on 3/17/97 regarding a
listing of Levines’ personal property taken by Defendant March to Chicago to be
returned to Levines;
        6.      Levines’ 3/18/97 Supplemental Response regarding sanctions for
Defendant March’s failure to deliver Levines’ property as ordered by the Court;
        7.      3/19/97 Order granting permission to take Defendant March’s
deposition but not allowing questions about the death of Janet Levine March;
        8.      3/31/97 Order, stating that Defendant March failed to comply with
prior Court Order concerning return of Levines’ personal property and allowing
Levines to videotape personal property at Defendant March’s Chicago residence.
        9.      Levines’ 4/17/97 Petition, including Exhibits 1, 2, and 3, regarding
request to videotape the Levines’ personal property held by Defendant March at his
Chicago residence;
         10.    Levines’ 6/19/97 Motion for Sanctions regarding the deposition of
Defendant March;
         11.    7/21/97 Order regarding delivery to Levines of Levines’ personal
property taken by Defendant March to Chicago;
         12.    Defendant March’s 8/20/97 Notice of Appeal regarding delivery of
personal property to the Levines;
         13.    Levines’ 9/23/97 response brief, including exhibits, regarding
Defendant March’s refusal to comply with Court Order regarding return of personal
property to the Levines;
         14.    Levines’ 12/8/97 Memorandum Brief filed in support of Motion for
Sanctions and Contempt including Exhibits 1 through 16, regarding Defendant
March’s refusal to return Levines’ personal property and comply with Court Order;
         15.    Levines’ 1/27/98 reply brief regarding sanctions and contempt of Court
by Defendant March, specifically Defendant’s misconduct during a deposition;
         16.    Levines’ 11/17/98 Petition for Contempt regarding Defendant March’s
failure to comply with Court’s order and return Levines’ personal property;
         17.    Levines’ 11/17/98 Request for Fees and Expenses, including Exhibit
4, for Defendant March’s failure to comply with the Court’s Order dated July 15,
1998;



                                        -12-
        18.     1/20/99 Order regarding Defendant March’s contempt for refusal to
obey Court Orders;
        19.     1/20/99 Order concerning dismissal of Defendant March’s appeal;
        20.     Levines’ 2/3/99 Motion to Dismiss Defendant March’s Appeal;
        21.     3/24/99 Order of the Court of Appeals regarding dismissal of
Defendant March’s Notice of Appeal regarding contempt orders;
        22.     Levines’ 7/2/99 Petition, including exhibits and supporting
memorandum brief, for Defendant March’s willful and deliberate refusal to comply
with Court Orders;
        ....
        30.     Pages 22-36 of the transcript from the January 5, 1999 hearing
regarding Defendant March’s failure to return to a handbag and a quilt and repair
furniture as ordered by the Court;
        31.     Pages 35-39 and pages 42-48 from transcript from the August 15, 1997
hearing regarding Defendant March’s failure to comply with Court Order on three
separate occasions;
        32.     Cover page and pages 27-38 of transcript from September 24, 1997
hearing regarding Defendant March’s failure to obey Court’s Orders;
        33.     Statement dated October 7, 1999 regarding Perry March’s failure to
appear for a noticed deposition;
        ....
        1.      Defendant March’s 11/25/96 Complaint for Appointment of Receiver;
        2.      12/18/96 Order of Transfer to Probate Court by Chancellor Lyle;
        3.      11/25/96 Summons of Defendant March;
        4.      Defendant March’s 11/26/96 Motion to Transfer;
        5.      Defendant March’s 1/21/97 Motion to Dismiss, which includes
statement by Defendant March that he is a party;
        6.      Defendant March’s 7/16/97 Objection to Fees;
        7.      Defendant March’s 8/20/97 Notice of Appeal;
        8.      9/10/97 docketing statement for Court of Appeals, listing Defendant
March as a party and appellant at Court of Appeals;
        9.      9/16/97 Letter of Lionel Barrett designating record for Defendant
March’s appeal;
        10.     Defendant March’s 10/7/97 Notice of Appeal;
        11.     Defendant March’s 8/14/98 Notice of Appeal;
        12.     10/4/99 Order of Magistrate Griffin regarding Defendant March’s
request to remove case to Federal Court; and
        13.     Order filed March 20, 1997 from Chancery Court 97-904II.




                                       -13-
        From everything disclosed by the record up until July 16, 1999, the Levines and Perry March
were litigating an in rem proceeding concerning only the personal property of the Absentee, Janet
Levine March, and the personal conduct of Perry March in the litigation.2

THE WRONGFUL DEATH ACTION

       On July 16, 1999, the Levines sought to amend their original Intervening Petition of
November 6, 1996 in order to assert a wrongful death action against Perry March, acting in “their
individual capacities as next friends of Janet March and as next friends of Samson and Tzipora
March.” In this Amended Intervening Petition and Cross-Claim they asserted:

                5.      On August 15, 1996, Perry March intentionally inflicted severe,
        physical harm on Janet March and thereby proximately caused her death. The Cross-
        Claimants bring this action against Perry March for the wrongful death of Janet
        March.
                6.      Janet March and Perry March were married in June 1987 in Nashville,
        Tennessee. Samson March, their first child, was born August 27, 1990. Their second
        child, Tzipora March, was born May 17, 1994. At the time of the acts relevant to this
        action, Janet March and Perry March lived with their children at 3 Blackberry Road
        in Nashville, Tennessee.
                7.      The first few years of the marriage of Janet March and Perry March
        were without marital problems. However, beginning in 1990, Janet March and Perry
        March began having problems with their relationship. Over time, Perry March
        became physically, verbally, and emotionally abusive toward Janet March. At Janet
        March’s insistence, Perry March underwent several years of psychiatric treatment.
        The relationship continued to deteriorate, and by 1996, Janet March and Perry March
        argued frequently and Janet March was contemplating divorce. In early August 1996,
        the relationship had deteriorated so sharply that Perry March stayed in hotel rooms,
        rather than at his wife’s house, from August 7 until August 13, 1996.
                8.      Perry March returned to the house occupied by Janet March and his
        children on August 13, 1996. Despite his return home, the marital problems between
        Janet March and Perry March continued. On the night of August 15, 1996, Janet
        March and Perry March had a heated argument. Perry March inflicted serious bodily
        injury on Janet March during that argument. As a proximate result of Perry March’s
        violent and wrongful act, Janet March died on August 15, 1996 or very shortly
        thereafter.
                9.      After he killed Janet March, Perry March began taking steps to hide her
        body and destroy evidence of his wrongful act. At about midnight on August 15,
        1996, Perry March telephoned the Cross-Claimants and told them that he and Janet


         2
                    Sep arate from the personal prop erty, the real estate owned by Janet March was also the subject of the
litigation, but such is not m aterial to the case at ba r, it having b een d isposed of in confo rmity with the opinion of this
Court in March v. Levine, 1999 WL 140760.

                                                            -14-
March had had an argument and that she had left the house. During a series of
telephone calls between the Cross-Claimants and Perry March over the next twenty-
four hours, Perry March fabricated other details of his story. He eventually told the
Cross-Claimants that Janet March had said she was taking a twelve-day vacation and
had given him a typed list of things to accomplish while she was gone. Still later,
Perry March told the Cross-Claimants that Janet March had taken her passport,
$1,500.00 cash, and three bags filled with clothes and personal items with her when
she left.
        10.      On August 15, 1996, several hours before he called the Cross-
Claimants to claim that Janet March had left, Perry March called his brother, Ron
March, in Illinois and his sister, Kathy March, in Michigan. Within days of August
15, 1996, and at different times, Ron March, Kathy March, and Perry March’s father,
Arthur March, who resided in Mexico, came to Nashville.
        11.      On or about August 23, 1996, Perry March began searching for a
criminal defense attorney. On August 29, 1996, at the insistence of the Cross-
Claimants, the Metro Police were notified that Janet March was missing. On
September 7, 1996, Janet March’s car was found at an apartment complex in
Nashville. Inside the car were personal items belonging to Janet March. Janet
March’s body has never been found.
        12.      On or about September 16, 1996, Metro Police asked Perry March to
consent to a search of the personal computer on which Janet March had supposedly
typed the list of things for Perry March to do while she was on vacation. Perry March
refused to allow the search. Metro Police obtained a search warrant for the residence
and notified Perry March’s criminal defense attorney that they would execute the
warrant the following day, September 17, 1996. When they searched the house, Metro
Police found that the computer’s hard drive had been forcefully removed from the
computer. It has never been recovered, and Perry March has not offered an
explanation for its disappearance.
        13.      On September 17, 1996, Metro Police publicly declared Perry March
as the prime and only suspect in the homicide investigation of Janet March.
        14.      Since that date, Perry March has consistently refused to cooperate with
the investigation into the death of Janet March. He has refused to answer questions
about her death; he has refused to cooperate with the Metro Police in their
investigation into the death; and he has hindered the investigation by, among other
acts, hiding the body of Janet March, destroying or hiding evidence of her death, and
by destroying or hiding the hard drive of the personal computer used by Janet March.
        15.      Because Perry March killed Janet March, Samson March and Tzipora
March will be deprived for their lives of the love, affection, attention, devotion, and
guidance of their mother. Because Perry March killed Janet March, the Cross-
Claimants will be deprived for their lives of the love, affection, attention, devotion,
and guidance of their daughter.




                                         -15-
         On July 26, 1999, Perry March filed his Special Appearance and Response to Motion Filed
on Intervening Wrongful Death Action. In this pleading, he challenges the introduction of an entirely
new cause of action into an existing in rem action by use of Rule 15.01 of the Tennessee Rules of
Civil Procedure. Also, on July 26, 1999, the conservator for the absentee of Janet Levine March filed
a petition, essentially, to be relieved from participation in the wrongful death action, asserting in part:

                4.       On November 6, 1996, Lawrence and Carolyn Levine filed with this
        Court an “Intervening Petition” setting forth that they were acting as “next friends and
        parents of Janet Gail Levine March and grandparents of Samson March and Tzipora
        March.”
                5.       Since that date, the Levines have participated fully in this action,
        including pursuing an appeal from this Court’s Order of May 1997 approving a
        settlement agreement with Perry March. However, the Levines have never filed a
        Motion for leave to intervene in this matter or obtained leave of Court to intervene,
        as is required by the express provisions of Rule 24, Tennessee Rules of Civil
        Procedure.
                6.       The Levines have now sought leave to amend their Intervening Petition
        to assert a tort claim of wrongful death against Perry March. Allowance of this
        amendment will not only radically alter the nature of this proceeding but will further
        deplete the assets of this estate if the Conservator and his counsel are required to
        participate in this additional litigation. It is respectfully submitted that the potentially
        significant financial burden to this estate of permitting the Levines to commence what
        is effectively a new cause of action is a relevant consideration for the Court in
        determining whether “justice requires” that this amendment be allowed in accordance
        with the requirements of Rule 15, Tennessee Rules of Civil Procedure.

        The proposed Amended Intervening Petition and the objections thereto came on to be heard
by the trial court on July 30, 1999. At the conclusion of the hearing, the trial court observed:

                I think Mr. Gideon also had the right to file a Rule 15 motion to amend the
        previous matter, and so I believe it is properly before the Court to file it on that matter.
        Rule 15 clearly says that leave shall be freely given, and there’s an appellant opinion
        that says we don’t have to construe it. It means what is says. That’s one of the very
        few times I’ve read a Court of Appeals opinion that says, “We don’t have to explain
        it. Just read it.” And so it says that.
                Therefore - - and - - and any deficiencies in the amended petition are not to be
        challenged at the Rule 15 hearing. They are to be challenged after the Rule 15 is
        granted. About the only time I would have the right to say no on a Rule 15 is if it’s
        the day of the trial and there’s prejudice or if the party just clearly had no standing and
        there’s just absolutely no way to do it.
                But I feel I’m compelled to grant that. I feel that I should grant it, so I’m
        granting the motion and petition of Lawrence and Carolyn Levine to amend their
        petition to intervene and to bring what we refer to as a wrongful death action.


                                                   -16-
               Now, having granted that, then Mr. Barrett, on behalf of Mr. March or any
       other party, would have the right to file a motion to dismiss, a motion for a more
       specific statement, a motion to remove Lawrence or Carolyn Levine as next kin
       because someone else has a superior right or they have a conflict of interest or what
       have you. But those matters actually occur on the second phase, the second hearing.
       That’s the way that Rule is written, and that’s the way I have followed it for almost
       20 years in this business.
               So, Mr. Gideon, your motion to intervene and to proceed with a wrongful
       death action is granted.

        On August 10, 1999, the trial court entered an Order allowing the Amended Intervening
Petition and Cross-Claim holding:

               The Motion for Leave to Amend the Intervening Petition heretofore filed is
       well taken and is granted. Pursuant to Tenn. R. Civ. P. 15.01, the Petitioner shall have
       fifteen days from July 30, 1999, the date of the hearing of this matter, in which to
       answer the cross-claim. The Court finds that the Intervening Petitioners, Lawrence
       Levine and Carolyn Levine, are appropriate intervening parties and are properly before
       this Court.
               The Court also finds that the Intervening Petitioners, Lawrence Levine and
       Carolyn Levine, have standing to bring the wrongful death action as next friends of
       Janet Levine March and as next friends of Samson March and Tzipora March. The
       Court also finds that it has jurisdiction to preside over all issues that have heretofore
       been properly brought before it in this matter, including the allegations in the cross-
       claim for wrongful death brought by the Intervening Petitioners, Lawrence Levine and
       Carolyn Levine.
               The motion of the Conservator to be excluded from participation in discovery
       and other matters related to the wrongful death action is granted.

We hold that the trial court erred in allowing the amendment.

        It is apparent that the trial court took literally the observation of the Supreme Court in Branch
v. Warren, 527 S.W.2d 89, 92 (Tenn. 1975) wherein it is stated: “Indeed, the statute (section 20-1505,
T.C.A.) which conferred a measure of discretion on trial judges was repealed and Rule 15 stands in
its place and stead. That rule needs no construction; it means precisely what it says, that ‘leave shall
be freely given.’ ”

       Taken literally and in isolation, this general statement would destroy any discretion in the trial
court about allowing or disallowing amendments under Rule 15.01. Since Federal Rule of Civil
Procedure 15(a) and Tennessee Rule of Civil Procedure 15.01 are identical, decisions under Federal
Rule 15(a) may be considered in construing Tennessee Rule 15.01. Gamble v. Hospital Corp. of Am.,
676 S.W.2d 340 (Tenn. Ct. App. 1984).



                                                  -17-
       The granting or denying of a motion to amend is within the sound discretion of the trial court
and will be reversed only for an abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Merriman v. Smith, 599 S.W.2d 548 (Tenn. Ct.
App. 1979).

       In Merriman v. Smith, this Court observed:

               Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479 (6th Cir. 1973), although it
       discusses the Federal Rules of Civil Procedure, Rule 15, sets out some of the broad
       and legitimate factors a trial judge should weigh in considering a Motion to Amend:
       Undue delay in filing; lack of notice to the opposing party; bad faith by the moving
       party, repeated failure to cure deficiencies by previous amendments, undue prejudice
       to the opposing party, and futility of amendment.

Merriman, 599 S.W.2d at 559.3

       In this case:

        1.     The entire proceeding in the probate court from October 30, 1996 to July 16, 1999 was
a purely in rem proceeding under the absentee estates statutes that dealt solely with the personal and
real property of Janet Levine March.
        2.     The thirty-one month delay between the filing of the original Intervening Petition by
the Levines on November 6, 1996 and the filing of the Amended Intervening Petition and Cross
Complaint for Wrongful Death on July 16, 1999 is unexplained in the record.
        3.      There is no assertion by the Levines of any newly discovered evidence of wrongful
death discovered subsequent to the November 6, 1996 Intervening Petition.
        4.      All of the facts alleged in the July 16, 1999 Amended Intervening Petition and Cross-
Claim for wrongful death were known to the Levines at the time of the filing of the November 6, 1996
Intervening Petition.

UNDUE DELAY

        While delay alone is an insufficient basis for denying leave to amend, Moore v. City of
Paducah, 790 F.2d 557, 562 (6th Cir. 1986), unexplained delay coupled with other factors may
constitute “undue delay” within the meaning of the Rule as construed in Foman v. Davis, Merriman
v. Smith and other cases. One such factor is where the party seeking to amend has known all of the
facts underlying the amendment since the beginning of the litigation. “[L]ate amendments to assert
new theories are not reviewed favorably when the facts and the theory have been known to the party
seeking amendment since the inception of the cause of action.” Acri v. International Ass’n. of
Machinist and Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986). See also Royal Ins. Co. of


         3
                    These are the same factors established by the United States Supreme Court in Foma n v. D avis, 371
U.S. 178 , 83 S .Ct. 22 9, 9 L.Ed.2d 2 22 (196 2).

                                                       -18-
Am. v. Southwest Marine, 194 F.3d 1009, 1016-17 (9th Cir. 1999); Duggins v. Steak ‘n Shake, Inc.
195 F.3d 828, 834 (6th Cir. 1999).

      In upholding the denial by the trial court of leave to amend, the Tenth Circuit Court of
Appeals observed in McKnight v. Kimberly Clark Corp., 149 F.3d 1125 (10th Cir. 1998):

       The motion was filed a full year after the date of the initial pleading. Many key
       individuals would have had to be deposed again if the complaint was amended.
       Further, it appears that plaintiff was aware of all the information on which his
       proposed amended complaint was based prior to filing the original complaint.
       Plaintiff offered no explanation for the undue delay.
               We will not disturb a district court’s decision to deny a motion to amend if the
       opposing party will be unduly prejudiced by the amendment. Federal Insurance Co.
       v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987). In this case, prejudice
       would clearly result. While we recognize that Fed.R.Civ.P. 15(a) requires that “leave
       shall be freely given,” we have previously held that undue delay is sufficient to deny
       such leave. See First City Bank v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127,
       1133 (10th Cir. 1987).

McKnight, 149 F.3d at 1130.

        Another factor relating to undue delay is prejudice to the opposing party. Reopening of
discovery alone creates significant prejudice. City of Paducah, 790 F.2d 557. This factor is, of
course, significantly discounted in this case because of repeated discovery evasion by Perry March,
but it must be noted that no reason, justifiable or otherwise, appears from this record to explain why
the Levines did not allege their wrongful death claim in their original Intervening Petition and thereby
alleviate the necessity for reopening discovery thirty-one months later.

NEW CAUSE OF ACTION PROBLEM

        A related and equally persuasive reason exists for denying leave to amend in this case. The
“absentee” estate proceedings had been at issue for thirty-one months before the wrongful death
amendment was sought. Much discovery and near-endless proceedings had already occurred in the
trial court, all relating to the property of Janet March. The belated Amendment to the Intervening
Petition and Cross-Claim against Perry March alleging wrongful death introduced an entirely separate
proceeding into a statutory in rem case. In King v. King, 922 F.Supp. 700, 704 (D.N.H. 1996), the
court addressed just such a problem holding, “the court finds that the addition of the proposed new
claim would require discovery into matters that were not previously part of this action, and would
likely further delay these already much delayed proceedings. The First Circuit has left no doubt that
‘the further along a case is toward trial, the greater the threat of prejudice and delay when new claims
are belatedly added.’ Executive Leasing Corporation v. Banco Popular de Porta Rico, 48 F.3d 66,
71 (1st Cir.)” See also Groth v. Orkin Exterminating Co., Inc., 909 F.Supp. 1143 (C.D. Ill. 1995);



                                                 -19-
Burger v. Edgewater Steel Co., 911 F.2d 911 (3rd Cir. 1990); Grant v. News Group Boston, Inc., 55
F.3d 1 (1st Cir. 1995).

       The difficulty in another context is well stated by Appellees in their response in this Court to
Appellant’s Motion for Voluntary Dismissal of this appeal. Said Appellees on February 10, 2001:

       I.      THE COURT AND ALL PARTIES INVOLVED RECOGNIZED FROM THE
       BEGINNING OF THE WRONGFUL DEATH CLAIM THAT IT WAS A
       SEPARATE AND DISTINCT CASE PROSECUTED APART FROM THE
       PROBATE CASE
               On the same day the Trial Court granted the Appellees’ request to amend their
       Probate Court petition and assert wrongful death claims, the Trial Court also ruled the
       wrongful death claims would constitute a separate cause of action. In doing so, the
       Trial Court separated the parties and the causes of action. In the probate case, the
       parties were: the Levines, the Conservator, and Perry March. In the wrongful death
       action, the parties were: the Levines and Samson and Tzipora March as Plaintiffs and
       Perry March as the Defendant. The children were not a party to the absentee estate
       case, and the Conservator was not a party to the wrongful death case. In the July 30,
       1999 proceeding, the Court ruled:

       MR. LEEMAN:             You do need to address our request that you instruct us not to
                               be involved in the wrongful death matter.

       THE COURT:              Correct. Thank you, Mr. Leeman. I did need to address that,
                               and I was about to overlook it.

                               A wrongful death action is brought on the behalf of the
                               surviving spouse or minor children. Even if there’s a
                               decedent’s estate open, even if there’s an executor or
                               administrator of the estate, the executor and administrator
                               don’t have to be the plaintiff.

                               You don’t have to open a decedent’s estate to bring that action.
                               It, under statute, is the right of the surviving spouse and/or
                               minor children. The point being here that even though we
                               have a Conservator, even if we had an executor, they would
                               not have to be a party to that action. They would have a right
                               to say we want to be the party, but they would not have to be.

                               So for that reason, Mr. Leeman is correct that the Conservator
                               does not have to be a party to the wrongful death action. And
                               based upon their express desires that, to save the
                               conservatorship money, they would like to be excluded from


                                                 -20-
                                   that, so they don’t have an affirmative duty to participate or
                                   monitor, I agree.

                                   And so the Conservator shall not be obligated and shall have
                                   no duty to participate in a wrongful death action, whether it be
                                   brought by the Levines against Perry March, whether it be
                                   brought by Arthur March against Lawrence Levine or anybody
                                   else. . . .

                Clearly, the Trial Court ruled that, with the addition and subtraction of parties
        in the two, different lawsuits, the wrongful death action became a distinct cause of
        action. The wrongful death action was prosecuted entirely separately from the probate
        proceedings, and the Conservator did not participate in any way in the wrongful death
        case.
                Accordingly, there was never more than one claim for relief present in any
        action pending before the Trial Court. There was, and remains, a probate proceeding
        involving the conservatorship of Janet Levine’s estate. There was also, as a
        completely separate cause of action, a wrongful death action unrelated to the
        conservatorship, except that the cases shared the same decedent.
                Moreover, the Trial Court assigned a separate docket number to the wrongful
        death action and directed the clerk to maintain the file as a separate case. The Trial
        Court’s Order of October 20, 2000 clearly addresses the wrongful death action as
        being “distinguished from the Absentee Conservatorship and Receivership.”
                The wrongful death claims were prosecuted from the beginning as separate
        from and unrelated to the probate case involving the conservatorship of Janet Levine’s
        estate. They were not the same action as contemplated by Tenn. R. Civ. P. 54.02.
        Accordingly, the continuing pendency of the conservatorship does not affect the
        finality of the wrongful death judgment.

COMPULSORY JOINDER OF THE CONSERVATOR PROBLEM

       Far from relieving the practical problems in this case and conserving judicial resources, the
course of action taken has had the opposite effect. With apologies to Senator Carmack, the pewter
handle has been welded to the wooden spoon. Without the conservator being a party to the wrongful
death action, he is not bound by the finding of death, wrongful or otherwise. Under Tennessee Code
Annotated section 30-3-102(1984) the issue of death “shall go to the court or jury as one of fact to
be determined upon evidence.”4

         4
                  The specific language that the issue of d eath “shall go to the court or jury as one of fact to be
determined upon evidence” contained in Tennessee Code Annotated section 30-3-102 (1984) was deleted by Chapter
121 of the Public Acts of 2001effective April 26, 2001. T he overall effect, however, of Tennessee Code Annotated
section 30-3-10 2, as amended by Chapter 121 of the Public Acts of 2001, and the provisions of Tennessee Code
Annotated section 30-3-108 (2001), as amended by the same Act, still require a factual hearing on the question of d eath
                                                                                                         (continued...)

                                                        -21-
       Tennessee Code Annotated section 30-3-108(2001), relative to the final hearing on the
absentee estate provides, in part:

                (a)      At any time during the proceedings, upon application to the court and
        presentation of satisfactory evidence of the absentee’s death, the court may make a
        final finding and decree that the absentee is dead, in which event the decree and a
        transcript of all the receivership proceedings shall be certified to the probate court for
        any administration required by law upon the estate of a decedent, and the receivership
        court shall proceed no further except for the purposes hereinafter set forth in § 30-3-
        110, subdivisions (1) and (3).

        The finding of death by the trial court in the wrongful death action cannot be res judicata as
to the absentee estate or its conservator, as the conservator is not a party to the action. It is
inconceivable that a default judgment against Perry March, based on no evidence, would work
collateral estoppel on the conservator, or any third party dealing with the conservator, and thereby
provide a substitute for evidence of death required by Tennessee Code Annotated sections 30-3-102
and 30-3-108. See State ex rel. Cihlar v. Crawford, 39 S.W.3d 172 (Tenn. Ct. App. 2000).

       We are left with the strange paradox that Janet March is alive (or at least not established by
evidence to be otherwise) for the purpose of the absentee estate but deceased for the purpose of the
wrongful death action against Perry March.

        Appellant March asserts on appeal that the conservator of the absentee estate is an
indispensable party to the wrongful death action. Appellant points out that a party who will be
directly affected by a decree and whose interest is not represented by any other party to the litigation
is an indispensable or necessary party. It is difficult, however, to say that the conservator will be
directly affected by the wrongful death decree. The conservator simply continues as before until he
is relieved by a finding of death under the absentee estate statute, by evidence of death, or by
unexplained absence for seven years under Tennessee Code Annotated section 30-3-102(a)(2001).5
By Chapter 121 of the Public Acts of 2001, the legislature may have resolved the problem in futuro
but not now.




        4
        (...continued)
which hearing must take into consideration the presumption of death resulting from unexplained absence for seven years.

            5
            Prior to Ch apter 121 of the P ublic A cts of 2001 , effective A pril 26 , 200 1, section 30 -3-10 2 spe cifically
provided that there was no presumption of death to be drawn by seven years of unexplained absence. By section 1(a)
of this Act, the common law presumption of death from seven years unexplained absence was reinstated. The
presumption is rebuttable, but unrebutted, will support a final decree dissolving the conservatorship estate per section
30-3-108(c), as that Code section was amended by section 3(c) o f the 2001 A ct. By the terms o f section 6 there of,
chapter 121 of the P ublic Acts of 2001 is applicable to any person whose death has not previously been adjudicated under
Title 3 0 Chapter 3 part 1 regardless of the date o f disappearance or ab sence.

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THE DEFAULT JUDGMENT

        The Amendment to the Intervening Petition and Cross-Claim alleging wrongful death was
allowed by the trial court after a hearing on July 30, 1999. On February 8, 2000, the trial court
granted judgment by default against Perry March for the wrongful death of Janet Levine March
holding: “This court has held on two occasions that Perry March is a willfully disobedient party and
has willfully disobeyed unambiguous, specific orders of this Court. The Court finds that Perry March
continues to be a willfully disobedient party.” The Order then, as a sanction under Tennessee Rule
of Civil Procedure 37.02(c), struck the Answer of Perry March to the Amended Intervening Petition
and Cross-Claim and granted a judgment against Perry March as to liability for the wrongful death
of Janet Levine March in the same language as was contained in the Amended Intervening Petition
and Cross-Claim.

        In this action, we hold that the trial court was in error. Judgment by default for failure to obey
an order to provide discovery is an extreme sanction. Shahrdar v. Global Hous., Inc., 983 S.W.2d
230, 236 (Tenn. Ct. App. 1998). The Levines sought, in vain, after the trial court allowed the
wrongful death amendment, to compel Perry March to return to Nashville to give his discovery
deposition. The trial court ordered him to return to Nashville. He countered with a proposal for a
telephonic deposition or to submit to a deposition in the community of his residence in Mexico. He
also asserted an unconvincing argument that he lacked the financial resources to return to Nashville.

        When one reviews the behavior of Perry March from November of 1996 up to the date of the
filing of the wrongful death claim in July of 1999, almost any sanction would have been justified.
However, it is the conduct of March following the conversion of this case to a wrongful death action
that must be judged, rather than his previous conduct. Default judgments in general should be set
aside if reasonable doubt exists as to the conduct of the defaulting party. Tennessee State Bank v.
Lay, 609 S.W.2d 525 (Tenn. Ct. App. 1980); Nelson v. Simpson, 826 S.W.2d 483 (Tenn. Ct. App.
1991). This rule must be balanced against the rule that the trial judge may be reversed on the
imposition of sanctions only by an affirmative showing of an abuse of discretion. Brooks v. United
Unif. Co., 682 S.W.2d 913 (Tenn. 1984).

        Following the default judgment, the trial court, on April 4, 2000, denied Appellant’s
application to set the judgment aside. The court impaneled a jury to determine damages and approved
the jury’s verdict of $113,500,000.00 in damages against Perry March for the wrongful death of Janet
Levine March.

        Considering the conduct of Mr. March subsequent to the filing of the wrongful death action,
the imposition of a default judgment is simply too drastic a sanction for his behavior. Throughout
this entire proceeding, Perry March has not been the only transgressor. The Levines, in their zeal to
sustain their position and to punish Perry March for what they sincerely believe to be the murder of
their daughter, have contributed greatly to the problems in this case. This Court recognizes the
patience and fortitude of the learned trial judge in trying his best to control this litigation, preserve



                                                  -23-
the absentee estate, and maintain the integrity of his court in the face of nearly insurmountable
challenges.

CONCLUSION

        The judgment of the trial court allowing the amendment under Rule 15.01 of Tennessee Rules
of Civil Procedure to assert a wrongful death action is reversed. The default judgment for wrongful
death and the ensuing award of damages against Perry March is reversed.

        Appellant seeks a reversal and dismissal as an adjudication upon the merits of the wrongful
death action. He cannot have both a holding that the amendment was erroneously allowed and the
default judgment erroneously entered and, at the same time, claim the benefit of an adjudication upon
the merits. If the amendment under Rule 15.01 was erroneous, there has been no adjudication upon
the merits. Whether the purported wrongful death action is premature, timely, or barred by the Statute
of Limitations must await adjudication on another date.

       The judgment of the trial court is reversed, and the case is remanded with directions to dismiss
the wrongful death action and proceed with the absentee estate in rem action. Costs of the cause are
assessed to Appellees.




                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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