Charles Shortie v. Rochelle George

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CA-00944-COA

CHARLES SHORTIE APPELLANT

ROCHELLE GEORGE, INDIVIDUALLY AND APPELLEE
AS THE PERSONAL REPRESENTATIVE FOR
AND ON BEHALF OF THE WRONGFUL
DEATH BENEFICIARIES OF ONER K.
SHORTIE, DECEASED

DATE OF JUDGMENT: 06/01/2015
TRIAL JUDGE: HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: WILLIAM R. STRIEBECK
ROBERT A. BIGGS III
ATTORNEY FOR APPELLEE: JAMES BYRNES GRENFELL
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION: GRANTED MOTION TO DISTRIBUTE
FUNDS TO WRONGFUL-DEATH
BENEFICIARIES AND HELD THAT
PARTIES WAIVED CHOICE-OF-LAW
ISSUE
DISPOSITION: AFFIRMED AND REMANDED: 05/23/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. This appeal considers whether Mississippi or South Carolina law should govern the

distribution of settlement funds in a wrongful-death action where a South Carolina resident

was killed in a motor-vehicle accident in Mississippi. The circuit court determined that

Mississippi law would govern who the proper beneficiaries were and the amount each would
take. We affirm and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2. Charles and Oner Shortie were married residents of South Carolina. Oner had five

adult children from a previous marriage: Rochelle George, Stephanie Nobles, Erlene

Alexander, Rebecca Rogers, and Kristopher Alexander. On March 26, 2014, Charles and

Oner were involved in an accident in Sunflower County, Mississippi. Oner died as a result

of the injuries she sustained.

¶3. On April 3, 2014, Rochelle filed a complaint in the Circuit Court of Sunflower

County, Civil Action No. 2014-0088. Rochelle filed the complaint individually and as the

personal representative of the decedent. The complaint asserted a wrongful-death action,

pursuant to Mississippi Code Annotated section 11-7-13 (Rev. 2004), and demanded

damages for the benefit of Oner’s wrongful-death beneficiaries.

¶4. In May 2014, Charles filed a petition for formal probate of Oner’s estate in South

Carolina. In August, the South Carolina court appointed Charles as the personal

representative of Oner’s estate. The court also ruled that Oner died intestate and determined

that Oner’s only known heirs were Charles and Oner’s five adult children from a previous

marriage.

¶5. On September 8, 2014, Charles’s attorneys entered their appearance in Rochelle’s

lawsuit. Charles’s pleading also expressly “join[ed] in the complaint filed . . . by Rochelle

. . . as personal representative on behalf of all wrongful-death beneficiaries of Oner.” In

February 2015, Charles filed his own complaint in the circuit court, Civil Action No. 2014-

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0271. Charles was the only named plaintiff, and he demanded the recovery of damages for

his personal injuries sustained in the accident, which included past, present, and future

mental anguish; pain and suffering as a result of his injuries; medical bills resulting from his

injuries; and lost wages. The complaint also requested damages for bystander liability.

Charles’s complaint did not demand any damages on behalf of or for Oner’s wrongful-death

beneficiaries.

¶6. After the parties agreed to consolidate the two cases, the circuit court then referred the

case to mediation. A successful mediation was held on April 15, 2015. The parties reached

a settlement agreement. However, the next day, Charles’s attorneys informed Rochelle’s

attorney that Charles intended to pursue distribution of the wrongful-death settlement

proceeds to the beneficiaries under the law of South Carolina. Under South Carolina law,

Charles would be entitled to receive fifty percent of the settlement funds, and Oner’s children

would share the remaining fifty percent. S.C. Code Ann. §§ 62-2-102 (2014). Under

Mississippi law, Charles and Oner’s children would receive equal shares. Miss. Code Ann.

§ 11-7-13 (Rev. 2004).

¶7. On April 20, 2015, Rochelle filed a motion to approve the settlement and distribute

the settlement proceeds to the wrongful-death beneficiaries. In this motion, Rochelle

asserted that Mississippi law governed the distribution. Charles responded with a motion for

a declaratory judgment, claiming that South Carolina law governed the distribution. Rochelle

points out that this was the first pleading in which Charles claimed that there was a choice-

of-law issue before the circuit court.

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¶8. On April 30, 2015, the circuit judge issued a twelve page, single spaced order that

decided the pending motions. The circuit judge concluded:

Balancing all of the above elements, this court finds [that] Mississippi has the
most significant relationship with the occurrence and with the parties. That
South Carolina has any interest has not been “expressly shown” by any party.
The parties waived this issue by not raising the same in a timely manner. Even
if this had been timely raised, Mississippi [r]ules of intestate succession apply
to personal property located in Mississippi. Even if the complaints were
somehow construed as being [an] action for [or] on behalf of the Estate of
Oner Shortie, Mississippi laws still apply to intestate succession of personal
property for a nonresident decedent.

¶9. On June 1, 2015, the circuit judge executed a final declaratory judgment. It read:

Wherefore, the court hereby declares that the proper allocation of the
wrongful[-]death proceeds of Oner K. Shortie, deceased, be distributed to the
wrongful[-]death beneficiaries under section 11-7-13 of the Mississippi Code
of 1972, Annotated as [a]mended, with each of the six (6) heirs receiving one-
sixth (1/6) of the wrongful[-]death benefits.

The circuit judge also added the following language in his own handwriting: “Pursuant to

Rule 54(b) [of the Mississippi Rules of Civil Procedure] the Court expressly determines that

there is no just reason for delay in entering Final Judgment as to the parties[,] and the Clerk

is directed to enter this order as a Final Judgment.” It is from this judgment that Charles now

appeals.

ISSUES PRESENTED

¶10. Charles identified the following issues on appeal:

I. The trial court erred as a matter of law when it failed to apply a proper
choice-of-law analysis when it determined Mississippi law and not
South Carolina law applied to the distribution of wrongful[-]death
proceeds.

II. The trial court erred as a matter of law when it determined Charles

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Shortie “waived” his right to raise the conflicts[-]of[-]law issue.

III. The trial court erred as a matter of law when it allowed a party to add
documents to the record in violation of Rule 10(f) [of the Mississippi
Rules of Appellate Procedure].

STANDARD OF REVIEW

¶11. All of the issues raised in this appeal are purely questions of law. This appeal raises

no questions of fact. We review a trial court’s conclusions of law de novo. In re Estate of

England, 846 So. 2d 1060, 1064 (¶12) (Miss. Ct. App. 2003).

ANALYSIS

¶12. The review of every wrongful-death claim in Mississippi begins with section 11-7-13

and Long v. McKinney, 897 So. 2d 160 (Miss. 2004). Section 11-7-13 is the statutory

authority for a wrongful-death claim, and it defines the beneficiaries who are entitled to

recover damages. In Long, the supreme court provided an in-depth, comprehensive review

of and guidance for wrongful-death litigation in Mississippi. The court recognized that there

were “many troubling issues related to wrongful-death litigation. The same issues and

problems continually appear, and have been addressed on an ad hoc basis, leaving little in

the way of dependable precedent.” Long, 897 So. 2d at 163 (¶3). The supreme court noted:

“Today, we are provided an opportunity to address and clarify several of these problems, and

to provide guidance for these issues to the bar and judiciary.” Id. at (¶4). The court then

concluded:

However, for several reasons, we must reject the proposition that the first heir
to reach the courthouse with a lawyer will “control the litigation” to the
exclusion of participation by other heirs who wish to join with other counsel
of their choosing.

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Perhaps the most glaring fallacy in such a policy is the potential for conflicts
of interest which – should a view contrary to our view today prevail – would
be both legislatively ordered and court sanctioned.

We are persuaded that, absent the [wrongful-death s]tatute, wrongful[-]death
litigation would be reasonably uncomplicated. The rules to be followed are not
substantially different from those which apply to any personal-injury suit
where multiple plaintiffs pursue a claim against one or more defendants. Such
matters as joinder, “[c]ontrol of the litigation,” and participation by counsel,
are left to the sound discretion of the trial judge. We observe few problems
with such cases, and we are confident that today’s decision will bring
wrongful[-]death litigation to its rightful place under the Mississippi Rules of
Civil Procedure.

Id. at 178 (¶¶76-78).

¶13. Here, as in Long, we have an experienced and learned trial judge. Likewise, the

lawyers for Oners’ children and Charles are experienced in complex litigation and are

excellent lawyers. Indeed, consistent with Long’s guidance, they have worked together

reasonably well to pursue this litigation and obtain a substantial settlement. We turn to the

issues raised.

¶14. Charles argues that South Carolina law governs the distribution of the settlement

proceeds. He claims the circuit judge made an incorrect choice-of-law decision. Rochelle

disagrees and argues that the circuit judge was correct to apply Mississippi law. If not,

Rochelle claims that Charles waived the issue.

A. Circuit Court’s Analysis

¶15. The relevant language in the April 30, 2015 order is the following ruling:

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Balancing all of the above elements, this court finds [that] Mississippi has the
most significant relationship with the occurrence and with the parties. That
South Carolina has any interest has not been “expressly shown” by any party.
The parties waived this issue by not raising the same in a timely manner. Even
if this had been timely raised, Mississippi [r]ules of intestate succession apply
to personal property located in Mississippi. Even if the complaints were
somehow construed as being an action for [or] on behalf of the Estate of Oner
Shortie, Mississippi laws still apply to intestate succession of personal property
for a nonresident decedent.

The circuit court made three rulings. First, the court made a decision on the choice-of-law

issue and ruled that Mississippi law applies to the distribution of the wrongful-death

settlement proceeds. Second, Charles waived the issue because he did not raise it in a timely

manner. Third, the Mississippi laws of intestate succession apply because the settlement

proceeds are personal property.

¶16. The judge was incorrect to consider the laws of intestate succession. Our supreme

court has held that the wrongful-death “statute creates a new cause of action that accrues at

[the] death [of the decedent] in favor of the heirs listed in the statute.” England, 846 So. 2d

at 1066 (¶16). “Therefore, a wrongful[-]death action cannot become a part of the wrongful

[-]death victim’s estate except in the circumstance when, as provided by the statute, no

statutory heirs survived the wrongful[-]death victim.” Id. at 1067 (¶19). In other words

“[t]he deceased may not devise that which he does not have.” Id.

¶17. At oral argument, Rochelle’s attorney agreed that the circuit judge was in error for this

part of his ruling. We find that the circuit judge erred in the ruling that included the last two

sentences of the order quoted above. But this does not affect the outcome of this appeal.

B. Choice-of-Law Principles

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¶18. Charles and Rochelle presented a true conflict between the laws of Mississippi and

South Carolina. Section 11-7-13 provides that “damages for the injury and death of a

married woman shall be equally distributed to the husband and children.” (Emphasis added).

Thus, under Mississippi law, Charles would receive one-sixth of the settlement proceeds, and

each of Oner’s five children would receive one-sixth. Under South Carolina law, the

wrongful-death recovery is to be distributed according to the laws of intestate succession.

S.C. Code Ann. § 15-51-40 (1996). Thus, under South Carolina law, Charles would receive

one-half of the settlement proceeds, and Oner’s five children would receive the other half.

S.C. Code Ann. §§ 62-2-102, -103 (2014).

¶19. “[A] choice[-]of[-]law analysis arises only when there is a true conflict between the

laws of two states, each having an interest in the litigation.” Zurich Am. Ins. v. Goodwin, 920

So. 2d 427, 432 (¶8) (Miss. 2006). Recently, in Williams v. Clark Sand Co., 212 So. 3d 804,

809 (¶¶17-18) (Miss. 2015), the Mississippi Supreme Court held:

The center-of-gravity analysis is a choice-of-laws mechanism that this Court
uses to resolve conflicts of law. Mitchell v. Craft, 211 So. 2d 509, 515 (Miss.
1968) (“This doctrine is a rule whereby the court trying the action applies the
law of the place which has the most significant relationship to the event and
parties, or which, because of the relationship or contact with the event and
parties, has the greatest concern with the specific issues with respect to the
liabilities and rights of the parties to the litigation.” (citing 15A C.J.S. Conflict
of Laws 8(2) (1967))); see also Zurich, 920 So. 2d at 433; Restatement
(Second) Conflict of Laws §§ 145, 146 (Am. Law Inst. 1971). . . .

Where there is a conflict of laws, Mississippi follows the Restatement (Second)
Conflict of Laws.

(Internal citations omitted).

¶20. “In determining which [s]tate’s law to apply, Mississippi relies on the ‘center of

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gravity’ doctrine of the Restatement.” Zurich, 920 So. 2d at 433 (¶10) (citing Mitchell, 211

So. 2d at 510). This doctrine is described as:

[A] rule whereby the court . . . applies the law of the place which has the most
significant relationship to the event and parties, or which, because of the
relationship or contact with the event and parties, has the greatest concern with
the specific issues with respect to the liabilities and rights of the parties to the
litigation.

Id. In this wrongful-death action, we will first apply the law of the state where the injury

occurred in order to determine the rights and liabilities of the parties. Mitchell, 211 So. 2d

at 516. However, if we find that another state has a more significant relationship to the

occurrence and the parties, then we will ultimately apply the law of the other state. Id.

¶21. In McDaniel v. Ritter, 556 So. 2d 303, 310 (Miss. 1989), the supreme court itemized

the “[c]ontacts to be taken into account [when] applying the principles . . . to determine the

applicable law.” These contacts include: (a) the place where the injury occurred, (b) the

place where the conduct causing the injury occurred, (c) the domicile, residence, nationality,

place of incorporation, and place of business of the parties, (d) the place where the

relationship, if any, between the parties is centered. Id. (citation omitted). “These contacts

are evaluated according to their relative importance with respect to the particular issue.” Id.

C. Application of Choice-of-Law Principles

¶22. Rochelle argues that Mississippi law is the only applicable law in this case. She

claims that (1) all the events occurred in Mississippi, (2) the wrongful-death lawsuit was filed

in Mississippi, and therefore, (3) Mississippi law governs the issue on appeal. She also

claims that South Carolina does not have the most substantial relationship to either the parties

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or the decedent.

¶23. As to Rochelle’s claim that Mississippi law controls every issue in the case, the

supreme court has held that “the law of a single state does not necessarily control every issue

in a given case. We apply the center[-]of[-]gravity test to each question presented . . . .”

Boardman v. United Servs. Auto. Ass’n, 470 So. 2d 1024, 1031 (Miss. 1985).

¶24. Mississippi law controlled whether the defendants were negligent, and whether the

plaintiffs were entitled to recover. However, the question here only involves the distribution

of the wrongful-death settlement proceeds. We must consider the factors relevant to this

choice-of-law issue and evaluate the contacts “according to their relative importance with

respect to the particular issue.” McDaniel, 556 So. 2d at 310.

(a) The place where the injury occurred.

(b) The place where the conduct causing the injury occurred.

¶25. The injury and the conduct causing the injury occurred in Mississippi.

¶26. The domicile and residence of Oner and Charles was South Carolina. Also, at the

time of her death, two of Oner’s children were living with them in South Carolina. Thus, as

of her death, the decedent and three of her wrongful-death beneficiaries were domiciled in

and residents of South Carolina. At the time of the settlement, Charles was the only resident

of South Carolina, and the remaining five beneficiaries lived in other states. None of the

beneficiaries ever lived in Mississippi.

(d) The place where the relationship, if any, between the parties

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is centered.

¶27. As of the date of her death, the place of the relationship between the parties was

centered in South Carolina. Oner, Charles, and two of Oner’s children resided there.

D. Mississippi Cases

¶28. In Mitchell, two Mississippi residents died as the result of an automobile accident in

Louisiana. Mitchell, 211 So. 2d at 510. A wrongful-death lawsuit was filed in Mississippi,

and a counterclaim was also filed. Id. The circuit-court judge gave the plaintiff a

peremptory instruction on liability and on Mitchell’s counterclaim. The jury rendered a

verdict in the amount of $12,000 against the defendant, which was appealed. Id. The court

identified the issue as follows:

We are concerned here with two wrongful[-]death actions[], involving
Mississippi residents and their Mississippi estates, and arising from a two-car
collision [that] occurred in the State of Louisiana. The Mississippi
administratrix of the estate of one of the decedents sued, in a Mississippi court,
the Mississippi administratrix of the estate of the other decedent, who in turn
filed a counterclaim against the plaintiff. Both parties alleged negligence by
the other’s decedent, and that such negligence was a contributing cause of the
respective deaths. The question is, which state’s law is applicable–
Mississippi or Louisiana?

Id. at 512. The court had to decide whether to apply Mississippi’s law on comparative

negligence or Louisiana’s law of contributory negligence, which would have barred the

recovery. Id. at 510. The supreme court ruled:

This case involves a choice-of-law or conflict-of-law problem in an action for
wrongful death resulting from an automobile accident, in which plaintiff’s
decedent and defendant’s decedent were in separate cars. Both decedents were
domiciled in Mississippi, their estates are being administered here, and
whatever expectations they might have had were centered in Mississippi. This
State has a comparative negligence statute and Louisiana has the common-law

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rule by which contributory negligence bars recovery. We modify the
previously existing rule in this jurisdiction, which applied invariably the law
of the place of injury, and hold that under the factual situation existing in this
case, the most substantial relationships of the parties and the dominant interest
of the forum require application of Mississippi law . . . .

Id. Then, the court reasoned:

A primary consideration in determining applicable law is the advancement of
the forum's governmental interests. Mississippi’s interests in the present
controversy are evident, while Louisiana has none. The parties were residents
of Mississippi, and no citizen of Louisiana is involved. If there is any recovery
on a new trial, it will be by a Mississippi plaintiff-administratrix or a
defendant-administratrix as counterclaimant, acting as officers of a Mississippi
court for the benefit of Mississippi citizens. This state is especially concerned
with the protection of its injured domiciliaries and their families, and the
distribution of its domiciliaries’ estates. The law selected and applied in this
case will determine the effect of the contributory fault, if any, of plaintiff’s and
counterclaimant’s decedents. It will determine whether this negligence, if any,
will preclude plaintiff or counterclaimant from recovery. It is this Court’s duty
to further this State’s governmental interests. The comparative[-]negligence
statute of this State has been effectively administered for many years and we
have an interest in applying it to Mississippi residents.

Finally, an important consideration is application of the better rule of law. We
believe in our own law in this instance. Comparative negligence, although
utilized in diverse ways in only seven states, is a fairer and more economically
equitable standard of liability than that of the common-law rule of contributory
negligence.

This analysis leads quite definitely, we think, to the application of the
substantive law of Mississippi in this case. These relevant choice-of-law or
conflict-of-law considerations are factual, realistic, and can be tested by a
qualitative process of evaluation.

Id. at 514.

¶29. The court determined that Mississippi possessed the dominant interest of the two

forums, and held that “Louisiana’s sole relationship with the occurrence [was] the purely

adventitious circumstance that the collision happened there.” Id. at 513 (emphasis added).

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¶30. More recently, the supreme court considered a choice-of-law issue in a case with facts

very similar to this case. In re Estate of Blanton, 824 So. 2d 558 (Miss. 2002) (overruled on

other grounds as recognized by Clark v. Neese, 131 So. 3d 556, 562 (¶21) (Miss. 2013)).

¶31. Bryce and Juanita Blanton were married residents of Mississippi. Id. at 559 (¶1).

There were killed in an automobile accident while they were on vacation in Arkansas. Id.

Bryce and Juanita had no children together, and they were survived by their adult children

from previous marriages. Id. at 561 (¶7).

¶32. Bryce’s will was probated in Hinds County Chancery Court. Id. at 559 (¶1). His will

provided that, if Juanita predeceased him, his estate would be distributed equally among

Bryce’s children from a previous marriage (Tonita Gonzales and Tim Blanton), and Juanita’s

children from a previous marriage (Steven DeFord, Charles DeFord, and Kimberly Burrell).

Id. at 561 (¶8). Bryce’s will also named Tonita and Juanita’s adult sister as his co-

executrixes. Id. at (¶1). They filed a wrongful-death lawsuit in an Arkansas federal court.

The lawsuit was settled for two million dollars. Id.

¶33. In the Hinds County Chancery Court, the co-executrixes filed a petition to determine

heirs and wrongful-death beneficiaries, and a petition for authority to settle doubtful claims,

disbursement of attorneys’ fees, and distribution of settlement proceeds. Id. They claimed

that Arkansas law should apply because the deaths occurred in Arkansas. Id. at 559 (¶2).

Also, they stated that there was an agreement for the distribution of the settlement proceeds.

Id. The agreement was to divide the net settlement proceeds equally between Bryce’s and

Juanita’s estates. Id. at 559-60 (¶2). Then, based on Arkansas law, Bryce’s portion would

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be divided between his two adult children and his five living brothers and sisters. Id. at 560

(¶2). Juanita’s share of the proceeds was dispersed in a separate civil action and was not a

part of the appeal. Id.

¶34. Tim, Bryce’s son, filed an objection on the day of the scheduled hearing. Id. at (¶3).

The chancellor continued the hearing, and Tim later filed a petition that objected to the

application of Arkansas law. Id. at (¶4). After a hearing, the chancellor determined that

Arkansas law applied and ordered the distribution of twenty-five percent to each of Bryce’s

two children, and ten percent to each of Bryce’s five siblings, or their estates. Id. at (¶5).

Tim appealed and the only issue was the distribution of Bryce’s share of the wrongful-death-

settlement proceeds. Id. at 561 (¶9). Under Arkansas law, Bryce’s children and his siblings

were beneficiaries. Id. at (¶12). Under Mississippi law, only Bryce’s children were

beneficiaries. Id.

¶35. The court then held:

Just as in Mitchell, Arkansas’ sole relationship with the occurrence is the
purely adventitious circumstance that the accident happened there. Bryce’s
children correctly argue that Mississippi clearly has the most substantial
contacts in the present case . . . .

Applying the rule of Mitchell, it is clear that Mississippi substantive law must
be applied to the case sub judice. First, Bryce and Juanita were domiciled in
Mississippi. All of Bryce’s brothers and sisters are domiciled in Mississippi.
Tim is domiciled in Mississippi (Tonita lives in California). In fact, both
decedents and six of the seven parties to this suit are domiciled in Mississippi;
none are domiciled in Arkansas. Second, Bryce’s estate is being administered
in Mississippi. Third, whatever expectations Bryce might have had were
centered in Mississippi. Bryce’s last will and testament was drafted and
witnessed in Hinds County, Mississippi. In his will, Bryce directed that if he
and his wife died, he wanted the balance of his estate to be distributed equally
among their five children. Nowhere does Bryce make provision for part of his

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estate to be distributed to his siblings. It would be fair to say that Bryce’s
justified expectations were that, upon his death, his estate would be distributed
equally to his children, not half to his children and half to his siblings.
Mississippi law would provide for that outcome; Arkansas law would not. As
in Mitchell, under the factual situation existing in this case, the most
substantial relationships of the parties and the dominant interest of the forum
require application of Mississippi law.

Id. at 562-63 (¶¶14-15). It is important to note that, in the choice-of-law analysis, the court

gave great importance to the domicile of the parties, the fact that the decedent’s “estate [was]

being administered in Mississippi,” and the fact that the expectations of the decedent

“centered in Mississippi.” Id. at 562 (¶15). Also, the supreme court found that “Arkansas’

sole relationship with the occurrence [was] the purely adventitious circumstance that the

accident happened there.” Id. at (¶14).

¶36. In both Mitchell and Blanton, the supreme court declined to apply the laws of the state

where the accident occurred and the death/injuries occurred. Instead, the supreme court

instructed that, in choice-of-law decisions, we are to look carefully at each state’s contacts,

determine which state had the most significant relationships of the parties, and conclude

which state has the dominant interest between the forums.

¶37. Because the issue before us is a legal question, our review is de novo. We are not

required to defer to the trial court’s decision. When we consider the contacts, we recognize

that (a) the place where the injury occurred and (b) the place where the conduct causing the

injury occurred was Mississippi. However, we also recognize that (c) the domicile and

residence and (d) the center of the parties’ relationship is in South Carolina. Consistent with

Mitchell and Blanton, we find that South Carolina has the dominant interest because South

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Carolina was the domicile of Charles, Oner, and two of her children, as determined at the

time of her death. None of the potential beneficiaries are residents of Mississippi. Also,

Oner’s estate was probated in South Carolina, and her heirs were established under South

Carolina law. We find that Oner’s expectations were centered in South Carolina, not

Mississippi.

¶38. Mississippi only has a small interest in the distribution of the settlement among the

potential beneficiaries. As discussed in Mitchell and Blanton, Mississippi’s “sole

relationship with the occurrence is the purely adventitious circumstance that the accident

happened there.”

¶39. We find that the choice-of-law analysis requires that the law of South Carolina apply

to the distribution of the wrongful-death proceeds. We find the circuit court in error on this

issue.

II. The trial court erred as a matter of law when it determined Charles
“waived” his right to raise the conflicts-of-law issue.

¶40. We also recognize that the trial court held that Charles waived his right to raise the

choice-of-law issue. The April 30, 2015 order ruled: “The parties waived this issue by not

raising the same in a timely manner.”

¶41. Charles argues that the circuit judge incorrectly cited Owens v. Mississippi Farm

Bureau Casualty Insurance, 910 So. 2d 1065 (Miss. 2005). In Owens, Linda Owens filed

a direct action against her uninsured motorist carrier. Id. at 1068 (¶8) The issue of waiver

of a right to assert application of Tennessee law by the uninsured-motorist carrier was raised

by the plaintiff for the first time on appeal. Id. at (¶12). The court held there was no waiver

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of the choice-of-law issue because the issue of which state’s law should apply was clearly

placed before the trial court. Id. at 1072 (¶25). Charles claims that he “clearly place[d]” the

choice-of-law issue squarely before the trial court in his cross-motion for a declaratory

judgment, which he filed after the settlement agreement was reached.

¶42. Charles argues that he raised the choice-of-law issue when it became relevant and

applicable to the case. He contends that there was no reason to dispute which state’s law

applied to the distribution of the wrongful-death proceeds prior to the settlement agreement.

¶43. Rochelle argues that the question of waiver is “the single most important issue that

this court should consider before addressing the conflict-of-laws issue.” She cites the

principle that the “failure to timely and reasonably raise and pursue the enforcement of any

. . . affirmative matter or right” constitutes a waiver. Miss. Credit Ctr. Inc. v. Horton, 926

So. 2d 167, 180 (¶44) (Miss. 2006).

¶44. In Horton, the trial court denied a motion to compel arbitration. Id. at 171 (¶1).

Catherine Horton filed her lawsuit on December 27, 2002. Id. at 172 (¶6). The defendant

did not include arbitration as an affirmative defense in its original answer, but did in its July

7, 2003 answer to an amended complaint. Id. at (¶7). Then, on March 16, 2004, the

defendant filed a motion to compel arbitration. Id. at 173 (¶10). The supreme court held:

The record before us today clearly demonstrates that the [d]efendants asserted
their right to compel arbitration in their respective answers. However, rather
than proceeding within a reasonable time to file a motion to compel arbitration
and request a hearing on the motion, defendants proceeded to substantially
engage the litigation process by consenting to a scheduling order, engaging in
written discovery, and conducting Horton’s deposition. Horton asserts that
this participation in the lawsuit constituted a waiver of the [d]efendants’ right
to compel arbitration. Although participation in the litigation is an important

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factor to be considered, more is required to constitute a waiver. Horton also
asserts that [d]efendants waived the right to compel arbitration by their
unreasonable delay in bringing the issue before the trial court for adjudication.
We find that, ordinarily, neither delay in pursuing the right to compel
arbitration nor participation in the judicial process, standing alone, will
constitute a waiver. That is to say, a party who invokes the right to compel
arbitration and pursues that right will not ordinarily waive the right simply
because of involvement in the litigation process, and a party who seeks to
compel arbitration after a long delay will not ordinarily be found to have
waived the right where there has been no participation in, or advancement of,
the litigation process.

However, where – as here – there is a substantial and unreasonable delay in
pursuing the right, coupled with active participation in the litigation process,
we will not hesitate to find a waiver of the right to compel arbitration.

The amended complaint was filed on May 5, 2003. The [i]nsurance
[d]efendants filed their answers to the amended complaint on May 23, 2003,
and MS Credit filed its answer to the amended complaint on July 7, 2003. The
[d]efendants did not file a motion to compel arbitration or otherwise pursue
their right to arbitrate until March 22, 2004, a delay of eight months, all the
while participating in the litigation process. The [d]efendants have provided
no plausible explanation for this delay.

Our holding today is not limited to assertion of the right to compel
arbitration. A defendant’s failure to timely and reasonably raise and pursue
the enforcement of any affirmative defense or other affirmative matter or
right which would serve to terminate or stay the litigation, coupled with
active participation in the litigation process, will ordinarily serve as a waiver.

Id. at 180 (¶¶41-44) (emphasis added) (footnotes omitted).

¶45. Rochelle also argues that the conflict of law between South Carolina and Mississippi

over the distribution of settlement proceeds to the wrongful-death beneficiaries is a matter

that should be raised promptly. “Early determination of which state law governs a case is

essential for judicial economy, efficiency and fairness to the parties.” Bailey v. Wyeth Inc.,

28 A.3d 856, 860 (N.J. Super. 2008). The Bailey court also ruled that “a choice-of-law issue

18
should be raised as soon as prudently possible to avoid prejudice, surprise, waste and delay.”

Id. at 864. See also Kucel v. Walter E. Heller & Co., 813 F.2d 67, 74 (5th Cir. 1987)

(holding that defendants have “an obligation to call the applicability of another state’s law

to the court’s attention in time to be properly considered”).

¶46. In order to consider whether Charles waived his right to assert that South Carolina law

should govern the distribution of the proceeds obtained as a result of the wrongful-death

claim, we must determine when the issue should properly be brought to the attention of the

trial judge.1

¶47. Charles claims that Blanton is authority for his decision to wait and bring this matter

to the attention of the trial court only after the settlement was obtained. He is correct that

Tim Blanton did not file his objection to the determination of the proper wrongful-death

beneficiaries until after the settlement, and as such did not bring the choice-of-law issue to

the court’s attention until that time. Blanton, 824 So. 2d at 560 (¶4). In fact, Tim waited

until the day the chancery court had a hearing scheduled to approve the settlement and

authorize the distribution. Id. at (¶3). However, we do not find this to be authority on the

issue of waiver. There is no indication in Blanton that the co-executrixes or any affected

individual asserted that Tim had waived the right to make this claim.

¶48. To decide this issue, we must first consider when it should or could have been brought

to the trial court’s attention. For example, it is expected that the parties’ agreement to

1
We agree with Charles that the circuit judge incorrectly cited Owens. Charles is
correct that he “clearly place[d]” the choice-of-law issue squarely before the trial court in
his cross-motion for a declaratory judgment, which was filed after the settlement agreement
was reached. Charles did not first assert this issue on appeal.

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arbitrate is a right that should properly be brought to the court’s attention early in the

litigation, and any delay or “active participation in the litigation process” will suggest that

the right has been waived. Horton, 926 So. 2d at 180 (¶42). To answer this question, we

examine the guidance in Long.

¶49. In Long, the supreme court considered many aspects of the wrongful-death case. The

court announced certain procedures and guidance for the attorneys that are instructive here:

By our decision today and the procedure announced below, we intend to
eliminate the inherent conflict of interest and simplify the decisions to be made
by trial courts where more than one heir wishes to participate in the litigation
to protect their individual interests. We also address the dilemma faced by
counsel who have seemingly been forced into the uncomfortable position of
representing a client with conflicts of interest.

The resolution of this case requires only that we address appropriate practice
and procedure in wrongful[-]death litigation.

Long, 897 So. 2d at 171 (¶¶46-47). Then, the court said this about the “[d]etermination of

wrongful[-]death beneficiaries”:

Section 11-7-13 provides that wrongful[-]death litigation may be brought by
the personal representative of the deceased or by any one or more of several
statutory beneficiaries, for the benefit of all entitled to recover. Unless all
persons entitled to recover join in the suit, those who do have a fiduciary
obligation to those do not. Miss[issippi] Code Ann[otated section] 91-1-27
(Rev. 2004) provides for a chancery determination of the heirs at law of a
decedent; that is, those who inherit in the absence of a will. Although our
statutes mandate no specific procedure for the identification of wrongful[-
]death beneficiaries, a chancery court may make such determinations. Those
bringing the action, together with their counsel, have a duty to identify the
beneficiaries, and they should do so early in the proceedings.

Long, 897 So. 2d at 175-76 (¶67) (emphasis added, footnote omitted). The supreme court

followed this with a discussion about the “[c]hoice of attorneys and payment of attorney

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fees”:

Where, as here, one of the wrongful[-]death beneficiaries proposes to engage
counsel and file a wrongful[-]death suit without participation of the personal
representative of the decedent and all other beneficiaries, the beneficiary who
files suit does so as the representative of all statutory beneficiaries and must,
within a reasonable time following the filing of the complaint, provide
reasonable notice (i) to all other wrongful[-]death beneficiaries; (ii) to the
personal representative of the decedent if one has been appointed; and (iii) to
each person who bears a relationship to the deceased specified in section 11-7-
13. Such notice should, at a minimum, include the identity of the plaintiffs and
defendants, the nature of the claims against those defendants, the identity of
counsel representing the plaintiffs, and a copy of the complaint.

In addition, full disclosure is required of any agreement or arrangement for the
payment of costs or attorney’s fees from the portion of recovery attributable
to those receiving such notice. Should the personal representative[] or one or
more of the beneficiaries join in the litigation with separate counsel
representing their respective interests, the portion of recovery attributable to
such claimants shall not be subject to such agreement or arrangement, absent
written consent after full disclosure. However, the personal representative or
any beneficiary may petition the court for a review of the proposed payment
of costs and distribution of attorney fees, and the trial court may equitably
adjust and allocate fees among the attorneys based on the quantitative and
qualitative contribution of each to the case, provided however, that so long as
an attorney is reasonably involved, and makes a reasonable contribution to all
aspects of the litigation, no deduction should be made from his or her fees.

Id. at 176 (¶¶68-69) (footnotes omitted). The supreme court turned to a discussion on the

“Control of the Litigation—‘First to File’”:

In his January 19, 2002[] order denying consolidation, the trial court
characterized the phrase, “first to file an action has a right to prosecute it to its
conclusion,” as an “old established rule,” which he held was not “diluted” by
Franklin [v. Franklin ex. rel. Phillips, 858 So. 2d 110, 122 (¶41) (Miss.
2003)], which allowed consolidation of two wrongful[-]death suits for the
same death. He believed such consolidation required agreement of the parties.
Specifically, the trial court stated, “The Wrongful[-]Death Statute provides for
any beneficiary to bring the action in behalf of all beneficiaries and the ‘first
to file’ shall have control of the handling of the case.”

21
....

We recognize that ample dicta, and even some direct authority, exists under
our prior case law which justifies the conclusions reached by the trial court
here and by the federal court in Rampy [ex. rel. Rampy v. Austin, 718 F. Supp.
556, 561 (S.D. Miss. 1989)]. However, for several reasons, we must reject the
proposition that the first heir to reach the courthouse with a lawyer will
“control the litigation” to the exclusion of participation by other heirs who
wish to join with other counsel of their choosing.

Perhaps the most glaring fallacy in such a policy is the potential for conflicts
of interest which—should a view contrary to our view today prevail—would
be both legislatively ordered and court sanctioned.

We are persuaded that, absent the [wrongful-death s]tatute, wrongful[-]death
litigation would be reasonably uncomplicated. The rules to be followed are not
substantially different from those which apply to any personal[-]injury suit
where multiple plaintiffs pursue a claim against one or more defendants. Such
matters as joinder, “[c]ontrol of the litigation,” and participation by counsel,
are left to the sound discretion of the trial judge. We observe few problems
with such cases, and we are confident that today’s decision will bring
wrongful[-]death litigation to its rightful place under the Mississippi Rules of
Civil Procedure.

Id. at 178 (¶¶70, 76-78).

¶50. In this case, the accident that claimed Oner’s life occurred on March 26, 2014.

Rochelle filed her lawsuit very quickly – on April 3, 2014. In May 2014, Charles filed

probate proceedings in South Carolina, and he was appointed the personal representative of

Oner’s estate in August. On September 8, 2014, Charles entered his appearance in the

lawsuit filed by Rochelle, and in February, he filed his own complaint. As noted above,

Charles also expressly “join[ed] in the Complaint filed . . . by Rochelle.” Rochelle’s

complaint specifically sought damages under the Mississippi wrongful-death statute.

Certainly, as early as May 2014, Charles was represented by lawyers in South Carolina, and

22
could have known the difference in the distribution laws of South Carolina as opposed to

Mississippi. This case was settled on April 15, 2015, and the following day, Charles’s

lawyer told Rochelle’s lawyer that they would object to the distribution under Mississippi law

and ask the court to apply South Carolina law.

¶51. This litigation lasted just over one year. Rochelle claims that Charles knew of the

choice-of-law issue for at least a year and remained silent. Rochelle’s lawyer argues that the

there was no mention of the choice-of-law issue during the mediation or prior to settlement.

Charles’s lawyer claims that they did not know that Rochelle’s lawyer did not know of their

allegation that South Carolina law would apply to the distribution of the settlement proceeds.

¶52. In addition, there is general law that provides that the “[e]arly determination of which

state law governs a case is essential for judicial economy, efficiency and fairness to the

parties.” Bailey, 28 A.3d at 860. The Bailey court also explained that “a choice-of-law issue

should be raised as soon as prudently possible to avoid prejudice, surprise, waste and delay.”

Id. at 864. See also Kucel, 813 F.2d at 74 (holding that defendants have “an obligation to call

the applicability of another state’s law to the court’s attention in time to be properly

considered”).

¶53. We rely primarily on Long. There, the supreme court made it clear that any dispute

over the “determination of wrongful[-]death beneficiaries” should be decided early in the

litigation. Long, 897 So. 2d at 175-76 (¶67). Specifically, the court held:

23
obligation to those do not. [Mississippi Code Annotated section] 91-1-27 (Rev.
2004) provides for a chancery determination of the heirs at law of a decedent;
that is, those who inherit in the absence of a will. Although our statutes
mandate no specific procedure for the identification of wrongful[-]death
beneficiaries, a chancery court may make such determinations. Those
bringing the action, together with their counsel, have a duty to identify the
beneficiaries, and they should do so early in the proceedings.

Id. (emphasis added, footnote omitted).

¶54. Because we find the “duty to identify the beneficiaries” includes a duty to identify the

percentages that the beneficiaries would be entitled to take, we find that Charles was required

by Long to bring the choice-of-law issue to trial court’s attention “early in the proceedings,”

and he did not. Therefore, we find that the circuit judge was correct to find that Charles

waived this issue. As a result, we affirm the trial court’s decision to apply Mississippi law

to the percentage of distribution by each wrongful-death beneficiary.

¶55. We remand this case for the circuit judge to approve the distributions to the

beneficiaries.

III. The trial court erred as a matter of law when it allowed a party to add
documents to the record in violation of Mississippi Rule of Appellate
Procedure 10(f).

¶56. Based on the Court’s ruling above, we find no reason to address this issue and decline

to do so.

¶57. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS
AFFIRMED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

ISHEE, FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES AND
CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION. IRVING, P.J., AND WESTBROOKS, J., CONCUR IN PART AND

24
DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., NOT
PARTICIPATING.