TRK, LLC D/B/A TIMBER RIDGE TOWNHOUSE APARTMENTS, B&B MANAGEMENT GROUP, LLC AND TARA MAGEE APPELLANTS

E-Filed Document Aug 4 2016 16:46:48 2014-IA-00854-SCT Pages: 34 IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-M-00854-SCT TRK, LLC D/B/A TIMBER RIDGE TOWNHOUSE APARTMENTS, B&B MANAGEMENT GROUP, LLC AND TARA MAGEE APPELLANTS vs. VIVIAN MYLES, INDIVIDUALLY AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF ENRIQUE L. MYLES, DECEASED APPELLEES APPEAL FROM THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI BRIEF OF APPELLANTS JAMES G. WYLY, III, MS BAR 7415 MICHAEL HELD, MS BAR 101942 ADAM HARRIS, MS BAR 102955 PHELPS DUNBAR LLP 2602 13th Street, Suite 300 Gulfport, Mississippi 39501 Telephone: 228-679-1130 Email: wylyj@phelps.com heldm@phelps.com harrisa@phelps.com

CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this Court may evaluate possible disqualification or recusal. 1. James G. Wyly, III, Esq., of Phelps Dunbar LLP, Gulfport, Mississippi, attorney for appellants; 2. Michael F. Held, Esq., of Phelps Dunbar LLP, Gulfport, Mississippi, attorney for appellants; 3. Adam B. Harris, Esq., of Phelps Dunbar LLP, Gulfport, Mississippi, attorney for appellants; 4. J. Ashley Odgen, Esq., of Ogden & Associates, PLLC, Jackson, Mississippi, attorney for Vivian Myles; 5. Wendy M. Looney, Esq., of Ogden & Associates, PLLC, Jackson, Mississippi, attorney for Vivian Myles; 6. James W. Smith, Jr., Esq., of Ogden & Associates, PLLC, Jackson, Mississippi, attorney for Vivian Myles; 7. Bernard C. Jones, Jr., Esq., of Jones Jones & Mosley PA, Jackson, Mississippi, attorney for L.J.W., a Minor, by and through her mother, Janna Warnsley; 8. Shannon M. Jones, Esq., of Jones Jones & Mosley PA, Jackson, Mississippi, attorney for L.J.W., a Minor, by and through her mother, Janna Warnsley; 9. Ashley Jones Mosley, Esq., of Jones Jones & Mosley PA, Jackson, Mississippi, attorney for L.J.W., a Minor, by and through her mother, Janna Warnsley; ii

10. The Honorable Circuit Court Judge, Winston L. Kidd, Trial Court judge; 11. TRK, LLC d/b/a Timber Ridge Townhouse Apartments, appellant; 12. B&B Management Group, LLC, appellant; 13. Tara Burnside Magee; appellant; 14. Vivian Myles, appellee; 15. L.J.W., a Minor, appellee; 16. Janna Warnsley, mother and next fried of L.J.W., a Minor, appellee; and 17. The Estate of Enrique L. Myles, interested party. SO CERTIFIED, this the 4 th day of August, 2016. /s/ James G. Wyly, III JAMES G. WYLY, III - iii -

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... ii TABLE OF CONTENTS... iv TABLE OF AUTHORITIES... vi INTRODUCTION... 1 STATEMENT OF THE ISSUES... 2 STATEMENT OF THE CASE... 3 A. Course of Proceedings.... 3 B. Statement of the Facts.... 5 SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 9 A. Standard of Review.... 9 B. Relevant Facts.... 9 C. Vivian Myles did not have legal standing to bring this action.... 13 1. Vivian Myles agrees she has no standing.... 13 2. Vivian Myles is not a personal representative of the Estate.... 14 3. Vivian Myles is not a wrongful death beneficiary of Enrique L. Myles.... 15 4. Vivian Myles is not an interested person under the wrongful death statute.... 15 iv

D. Because there is no dispute L.J.W. is the sole heir and wrongful death beneficiary of Enrique L. Myles, Vivian Myles, as a second-tier individual, did not have standing to initiate this wrongful death action.... 16 E. This action is a legal nullity and it must be dismissed.... 19 F. Appellants Motion for Contempt should be granted.... 19 1. Authority of this Appellate Court.... 19 2. Relevant law and facts... 20 3. Relief requested in Motion for Contempt... 24 G. Appellants are entitled to their fees and costs.... 24 CONCLUSION... 25 - v -

TABLE OF AUTHORITIES CASES BellSouth Personal Communications, LLC v. Board of Sup rs of Hinds County, 912 So. 2d 436 (Miss. 2005)... 25 Burley v. Douglas, 26 So. 3d 1013 (Miss. 2009)... 9 Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149 (Miss. 2011)... 13 Delta Health Group, Inc. v. Estate of Pope, 995 So. 2d 123 (Miss. 2008)... 19 Fillingame v Patterson, 704 F. Supp. 702 (S.D. Miss. 1988)... 16, 17 Garlock Sealing Techs., LLC v. Pittman, No. 2008-IA-01572-SCT, 2010 WL 4009151 (Miss. Oct. 14, 2010)... 9 Hobson v. Chase Home Fin., LLC, 179 So. 3d 1026 (Miss. 2015)... 9 In re Estate of Moreland, 537 So. 2d 1337 (Miss. 1989)... 17 In re McMillin, 642 So. 2d 1336 (Miss. 1994)... 20 Johnson ex rel. Johnson v. Med Exp. Ambulance Serv., Inc., 565 F. Supp. 2d 699 (S.D. Miss. 2008)... 15, 18 Kirk v. Pope, 973 So. 2d 981 (Miss. 2007)... 9 Logan v. Durham, 95 So. 2d 227 (Miss. 1957)... 15, 16 Long v. McKinney, 897 So. 2d 160 (Miss. 2004)... Partyka v. Yazoo Dev. Corp., 376 So. 2d 646 (Miss. 1979)... 15, 16 Roebuck v. City of Aberdeen, 671 So. 2d 49 (Miss. 1996)... 25 SASS Muni-V, LLC v. DeSoto Cty., 170 So. 3d 441 (Miss. 2015)... 9 Sauvage v. Meadowcrest Living Center, LLC, 28 So. 3d 589 (Miss. 2010)... 21, 23 Tolliver v. Mladineo, 979 So. 2d 691 (Miss. 2008)... 16 Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989 (Miss. Ct. App. 2007)... 15, 17, 19 vi

STATUTES Miss. Code Ann. 11-7-13... 13, 15, 16, 21 Miss. Code Ann. 9-1-19... 19 RULES Miss. R. App. P. 1... 20 Miss. R. App. P. 36... 24 Miss. R. Civ. P. 41(a)(2)... 25 Miss. R. Civ. P. 41(e)... 25 - vii -

INTRODUCTION This case presents two basic questions for the Court s consideration: Question I: Does a second-tier wrongful death beneficiary have standing to initiate a wrongful death lawsuit when a first-tier wrongful death beneficiary exists? Answer: Both Appellants and Appellees now agree the answer to Question I is no. 1 However, for more than a year of expensive, discoveryintense litigation, Appellees adamantly argued that a second tier wrongful death beneficiary had standing when a first tier wrongful death beneficiary exists. Indeed, Appellees about-face only comes four hundred seventy-five (475) days since being asked to voluntarily dismiss and re-file this action in the name of the proper party. During that time, Appellants were forced to defend this claim, which required Appellants to file twenty-two (22) trial subpoenas, take seventeen (17) depositions, file seven (7) motions to compel, attend five (5) hearings (on eleven (11) different motions), file four (4) motions to stay, file a motion for summary judgment and related briefing, and file a petition for interlocutory appeal and related briefing in this appeal. 1 See Motion to Dismiss, Motion #2015-2939, 4, 2014-IA-00854-SCT (July 1, 2015). 1

Although there is now no dispute between the Parties that this appeal should be granted and the Trial Court s rulings be reversed, still at least one question does remain ripe for this Court: Question II: Should Appellants be awarded all costs, fees, and expenses incurred in the defense of the litigation leading up to Appellees change of heart? Answer: Appellants submit the Appellees should bear the cost necessitated by Appellees decision to pursue a claim they now recognize was procedurally improper. STATEMENT OF THE ISSUES 1. Whether the Trial Court erred in denying Defendants Motion for Summary Judgment; 2 2. Whether the Trial Court erred in granting L.J.W. s Motion to Substitute; 3 3. Whether L.J.W. s filing of an identical cause of action in the Circuit Court of Hinds County, Mississippi during the pendency of this Appeal was done in contempt of existing Orders of this Court; and 2 Each Appellee now stipulates that the Trial Court did err in denying the Motion for Summary Judgment. Motion #2015-2939. 3 Appellees, collectively, now stipulate that the Trial Court did err in granting L.J.W. s Motion to Substitute. Id. - 2 -

4. Whether Appellants are entitled to their attorneys fees, costs and expenses incurred in the defense of this litigation from November 2013 through July 1, 2015. STATEMENT OF THE CASE A. Course of Proceedings. On May 16, 2013, Vivian Myles filed a Complaint for wrongful death damages arising out of the murder of her son, Enrique L. Myles ( 2013 Lawsuit ). 4 Vivian Myles is not a wrongful death beneficiary of Enrique L. Myles, so Appellants moved for summary judgment because the Complaint was a legal nullity. 5 On April 17, 2014, the Honorable Winston L. Kidd of the Hinds County Circuit Court heard oral arguments on Appellants Motion for Summary Judgment, along with L.J.W. s Motion to Substitute Parties. 6 The hearing was continued and in a bench ruling on June 2, 2014, Judge Kidd denied Appellants Motion for Summary Judgment and granted L.J.W. s Motion to Substitute Parties. 7 On June 9, 2014, Appellants sent correspondence to the Trial Court enclosing proposed orders denying the Motion for Summary Judgment and 4 R. 21-32 (Citations to the Record are cited as R. Citations to the Transcript are cited as T. ). 5 R. 202-39. 6 See Motion for Summary Judgment, Reply in Support of Motion for Summary Judgment and Notice of Hearing on Motion for Summary Judgment. R. 202-42, 344-55. 7 T. 78. - 3 -

granting the Motion to Substitute Parties. The orders were not entered by the Trial Court and on June 25, 2014, Appellants filed their Petition for Interlocutory Appeal and Request for Immediate Stay of Circuit Court Proceedings. 8 This Appellate Court granted the stay requested in the Petition for Interlocutory Appeal by Order dated June 27, 2014. 9 This Court granted Appellants Petition for Interlocutory Appeal on August 6, 2014. 10 On July 1, 2015, Appellees moved to dismiss the appeal. 11 In the motion, both Vivian Myles and L.J.W. acknowledged, agreed and confessed to the very basis for Appellants appeal stating that [Vivian Myles] did not have standing to sue as the wrongful death beneficiary, as the deceased had an unborn child at the time of his death. This heir would be the person with the proper standing to bring the suit. 12 On July 8, 2015, Appellants responded to Appellees Motion to Dismiss. 13 Appellants argued that because of Appellees 11 th hour about-face, Appellants are entitled to all costs (including attorneys fees) associated with 1) the appeal; 2) all discovery costs subsequent to Appellants November 2013 request that the 8 Motion #2014-2580, 2014-IA-00854-SCT (June 25, 2014). 9 Order, 2014-IA-00854-SCT (June 27, 2014). 10 Order, 2014-IA-00854-SCT (August 6, 2014). 11 Motion to Dismiss, #2015-2939, 2014-IA-00854-SCT (July 1, 2015). 12 Id. 13 Response to Motion, #2015-2939, 2014-IA-00854-SCT (July 8, 2015). - 4 -

Trial Court action be stayed pending resolution of the standing issue; and 3) the underlying Trial Court motions from which this appeal is sought. By Order dated September 16, 2015, this Court denied Appellees Motion to Dismiss. 14 Despite the stay order, on January 19, 2016, L.J.W., by and through Janna Warnsley, filed another wrongful death lawsuit arising out of Enrique L. Myles death (the 2016 Lawsuit ) and served 107 Requests for Admissions on Appellants. 15 Appellants thereafter moved this Court to find the filing of the 2016 Lawsuit was performed in contempt of this Appellate Court s prior rulings mandating that Enrique L. Myles wrongful death proceeding be stayed. 16 B. Statement of the Facts. On or about January 22, 2013, Enrique L. Myles died as a result of a gunshot wound. 17 The night he was shot (1) Enrique L. Myles was at the apartment of Janna Warnsley, L.J.W. s mother; (2) gunshots were fired inside Janna Warnsley s private apartment unit; (3) Janna Warnsley s hands tested 14 Order on Motion, #2015-3939, 2014-IA-00854-SCT (March 18, 2015). 15 Motion for Contempt, #2016-2746, 2014-IA-00854-SCT (June 24, 2016); see also, Exhibit Q to Motion for Contempt, #2016-2746. 16 Id. 17 See Complaint, 11. R. 23-24. - 5 -

positive for particles indicative of gunshot residue; and (4) Janna Warnsley was indicted for refusing to disclose the identity of the shooter(s). 18 Additionally, the following relevant facts are not in dispute: On or about January 29, 2013, L.J.W. was born. 19 L.J.W. is the natural daughter of Enrique L. Myles. 20 On May 16, 2013, Vivian Myles filed her Complaint, individually and on behalf of all wrongful death beneficiaries of Enrique L. Myles. 21 Vivian Myles is the mother of Enrique L. Myles. 22 At the time Vivian Myles filed her Complaint, no estate had been opened on behalf of Enrique L. Myles. On November 8, 2013, Appellants filed a motion to stay pending a determination of whether the minor was the only true party in interest (a point which Appellees now concede). 23 18 See R. 740, 903-913, 943-44. 19 See Final Judgment Determining The Heirs At Law Of Enrique L. Myles, Deceased, 4. R. 238-39. 20 Id. at 6. 21 R. 21. 22 Id. at 1. R. 21. 23 See R. 84-87. - 6 -

On January 16, 2014, Appellants requested that Appellees agree to stay the matter pending resolution of the heirship determination as [t]here has been no discovery done in this case. 24 On March 7, 2014, L.J.W. was declared to be the sole and only heir at law and wrongful death beneficiary of Enrique L. Myles. 25 On March 10, 2014, Appellants filed their Motion for Summary Judgment on the basis Vivian Myles did not have standing to file the Complaint. 26 On March 13, 2014, Appellants requested that Appellees agree to dismiss the matter voluntarily in light of the Chancery Court order finding L.J.W. to be the sole heir and wrongful death beneficiary of Enrique L. Myles. 27 On March 17, 2014, Appellants renewed their request that the matter be voluntarily dismissed to allow Appellee L.J.W. to file a new lawsuit. 28 24 See Exhibit 1 to Appellants Response to Appellees Motion to Dismiss Appeal, Motion #2015-2939. 25 R. 238-39. 26 R. 202-40. 27 See Exhibit 2 to Appellants Response to Appellees Motion to Dismiss Appeal, Motion #2015-2939. 28 Id. - 7 -

On July 1, 2015, Appellees stipulated that Vivian Myles did not have standing to sue as the wrongful death beneficiary. 29 SUMMARY OF THE ARGUMENT Plaintiff Vivian Myles, AGREES with the Petitioners that she did not have standing to sue as the wrongful death beneficiary, as the deceased had an unborn child at the time of his death. This heir would be the person with the proper standing to bring the suit. This heir would be the person with the proper standing to bring the suit. A paternity test has confirmed the minor child is the sole heir to the deceased. Enrique L. Myles minor child, L.J.W., at the time of his death, was his sole wrongful death beneficiary and heir at law with proper standing to file suit. 30 There is no need for this Court to consider if Vivian Myles lacked proper standing to bring suit because the parties agree that Vivian Myles lacked proper standing and the correct person to bring the suit is the minor L.J.W. 31 All Appellees, through counsel, joined in this stipulation. 32 There can be no dispute that (a) the Trial Court erred in denying Defendants Motion for Summary Judgment and (b) the Trial Court erred in granting L.J.W. s Motion to Substitute. 29 Motion to Dismiss, #2015-2939, 4, 2014-IA-00854-SCT (July 1, 2015). 30 Id. 31 Id. at 8. 32 Id. at p. 5. - 8 -

Therefore, the only remaining issues before this Court are (a) whether Appellants should be entitled to recover their costs, fees and expenses associated with continued litigation after November 2013 and (b) whether Appellants are entitled to the relief requested in their Motion for Contempt. ARGUMENT A. Standard of Review. Whether Vivian Myles has standing to bring this action and whether her action is a legal nullity are purely questions of law subject to a de novo review. Whether a trial court erred in denying summary judgment on the basis of a complaint is a legal nullity is subject to de novo review. 33 Also, standing is a question of law reviewed under a de novo standard. 34 Standing is an aspect of subject matter jurisdiction. 35 B. Relevant Facts. On May 16, 2013, Appellee Vivian Myles initiated this litigation with the filing of a wrongful death complaint in the Circuit Court of Hinds County, First Judicial District. 36 The Complaint arises out of the murder of Enrique L. Myles at 33 Garlock Sealing Techs., LLC v. Pittman, No. 2008-IA-01572-SCT, 2010 WL 4009151, at *3 (Miss. Oct. 14, 2010) (citing Burley v. Douglas, 26 So. 3d 1013, 1016 (Miss. 2009)). 34 Kirk v. Pope, 973 So. 2d 981, 986 (Miss. 2007). 35 Hobson v. Chase Home Fin., LLC, 179 So. 3d 1026, 1031 32 (Miss. 2015) (citing SASS Muni V, LLC v. DeSoto Cty., 170 So. 3d 441, 445 (Miss. 2015)). 36 R. 21-32 - 9 -

an apartment complex in Jackson, Mississippi. 37 Janna Warnsley, L.J.W. s mother, has been indicted for withholding evidence regarding the circumstances of Enrique L. Myles death. 38 In November 2013, upon learning that there were two individuals claiming to be the proper plaintiff (L.J.W. had made her existence known), Appellants sought to stay the litigation because they would be prejudiced if they had to proceed under the circumstances. 39 Vivian Myles opposed Appellants Motion to Stay and argued discovery must proceed. 40 On February 20, 2014, the Trial Court denied the Motion to Stay and ordered that the parties proceed with discovery. 41 Appellants immediately responded to Vivian Myles written discovery, requested to depose Mrs. Myles and propounded their own written discovery. 42 Within weeks, on March 10, 2014, Appellants moved for Summary Judgment on the basis Vivian Myles did not have legal standing to file her lawsuit. 43 Despite Mrs. Myles arguing that discovery must proceed and despite the Trial Court s order requiring discovery, Mrs. Myles refused to respond to written discovery or appear for a deposition. Therefore, Appellants were required to file 37 Id. 38 R. 740 39 See Motion to Stay and Supplement to Motion to Stay. R. 84-87, 103-110. 40 See Plaintiff s Response to Motion to Stay. R. 186-88. 41 See Court Order. R. 191-92. 42 R. 4-5. 43 R. 202-39. - 10 -

a motion to compel. 44 That motion was heard on May 5, 2014. 45 At that time, trial was set for July 14, 2014. Although the Trial Court had previously ordered that discovery proceed, the Trial Court took the motion to compel under advisement while refusing to re-set or continue the trial dates. 46 Appellants also have no less than five discovery-related motions that have been taken under advisement. 47 Appellants Renewed Motion to Stay and Continue Trial also has been taken under advisement. 48 Appellants were not allowed to depose Vivian Myles until June 10, 2014 and Janna Warnsley until June 18, 2014. Despite its Motion to Compel, Appellants did not receive answers to interrogatories that were propounded in February until June 9, 2014 with trial still set for July 14. 49 In addition to two motions to stay, Appellants were forced to file two separate motions to compel before they received responses to requests 44 See Motion to Compel. R. 571-597. 45 Supplemental Transcript Volume 1 of 1, filed 5-1-16, pp. 1-7. 46 Id. 47 See Motion to Compel Subpoena Responses from the Jackson, Mississippi Police Department; Motion to Compel Subpoena Responses from the Hinds County District Attorney; Motion to Compel Subpoena Responses from the Mississippi Crime Lab; the City of Jackson, Mississippi s Motion to Stay and For Protective Order Pending Disposition of Ongoing Criminal Proceedings; Defendants Joinder in City of Jackson s Motion to Stay and for Protective Order Pending Disposition of Janna Warnsley s Ongoing Criminal Proceeding, Alternatively, Motion to Compel and, Motion to Compel Subpoena Responses from Cellular South, Inc. d/b/a C-Spire. R. 3-20, 620-31, 702-12, 719-24, 832-48. 48 R. 271-299; T. 165-166. 49 Curiously, before the Trial Court ordered substitution of L.J.W. as Plaintiff, L.J.W. responded to interrogatories that had been propounded to Vivian Myles. On June 9, 2014, after the Court denied Appellants Motion for Summary Judgment and granted L.J.W. s Motion to Substitute, L.J.W. responded again to the interrogatories that had been propounded to Vivian Myles. Vivian Myles has never responded to these interrogatories, propounded to her February 28, 2014. R. 193-95. - 11 -

for production of documents on June 16, 2014 (which were also propounded in February). 50 Appellants also have pending a Motion for Leave to File a Third- Party Complaint against Janna Warnsley, individually, for contractual indemnity arising out of her lease agreement. 51 On June 23, 2013, the City of Jackson filed its second Motion to Stay this case until after Janna Warnsley s criminal trial arising out of a hindering prosecution charge for the subject shooting. 52 On April 17, 2014, the Trial Court heard oral arguments on Appellants Motion for Summary Judgment. 53 In a bench ruling on June 2, 2014, the Trial Court denied Appellants Motion for Summary Judgment and granted L.J.W. s Motion to Substitute Parties. 54 On June 9, 2014, Appellants wrote to the Trial Court enclosing proposed orders denying the Motion for Summary Judgment and granting the Motion to Substitute Parties. 55 The orders have not been entered. 50 See Second Motion to Compel (R. 773-831) (first Motion to Compel, at R. 571-97). 51 L.J.W. s mother executed an enforceable indemnity agreement with her lease. It is undisputed that the night he was shot (1) Enrique L. Myles was at the apartment Janna Warnsley; (2) gunshots were fired inside Janna Warnsley s private apartment unit; (3) Janna Warnsley s hands tested positive for particles indicative of gunshot residue; and (4) Janna Warnsley was indicted for refusing to disclose the identity of the shooter(s). R. 854-918. 52 See City of Jackson, Mississippi s Motion to Stay and For Protective Order Pending Disposition of Ongoing Criminal Proceedings. R. 949-57. 53 See Motion for Summary Judgment, Reply in Support of Motion for Summary Judgment and Notice of Hearing on Motion for Summary Judgment. R. 202-42, 344-55. 54 T. 78. 55 Exhibit G to Motion for Contempt, Motion #2016-2746, 2014-IA-00854-SCT (June 24, 2016). - 12 -

Appellees filed their Petition for Interlocutory Appeal and Request for Immediate Stay of Circuit Court Proceedings on June 25, 2014. 56 This Court granted the Stay on June 27, 2014. This Court granted the Petition for Interlocutory Appeal on August 6, 2014. C. Vivian Myles did not have legal standing to bring this action. Individuals vested with legal standing to bring wrongful death and survival claims are set by statute. 57 Pursuant to Section 11-7-13, a wrongful-death action may be brought: (1) by the personal representative on behalf of the estate and all other persons entitled to recover; (2) by one of the wrongful death beneficiaries [hereinafter listed relatives ] on behalf of all persons entitled to recover; or (3) by all interested parties... 58 Here, Vivian Myles was none of these things. Indeed, she now readily admits as much. 1. Vivian Myles agrees she has no standing. Plaintiff Vivian Myles, AGREES with the Petitioners that she did not have standing to sue as the wrongful death beneficiary, as the deceased had an unborn child at the time of his death. 56 Motion #2014-2580, 2014-IA-00854-SCT (June 25, 2014). 57 Miss. Code Ann. 11 7 13. 58 Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 155 (Miss. 2011) (internal citations omitted) (emphasis in original). - 13 -

This heir would be the person with the proper standing to bring the suit. 59 2. Vivian Myles is not a personal representative of the Estate. The first potential wrongful-death claimant is the personal representative of the deceased person. 60 To have standing as a personal representative to bring a wrongful-death action, the plaintiff must be formally appointed as such prior to filing the complaint for wrongful death. 61 If the potential claimant has not been formally appointed administrator or executor of the decedent s estate at the time he or she commences the wrongful-death action, it follows that the person is without standing as a personal representative to bring the suit. 62 It is undisputed that Vivian Myles was not formally appointed administratrix or executrix of Enrique L. Myles estate at the time the Complaint was filed. Therefore, she had no standing to bring this action as an alleged personal representative of Enrique L. Myles. 63 59 Motion to Dismiss, Motion #2015-2939, 4, 2014-IA-00854-SCT (July 1, 2015). 60 Id. 61 Id. 62 Id. 63 Miss. Code Ann. 11 7 13. - 14 -

3. Vivian Myles is not a wrongful death beneficiary of Enrique L. Myles. L.J.W., Enrique L. Myles natural daughter, is the sole and only heir at law and wrongful death beneficiary of Enrique L. Myles. 64 Because Vivian Myles is not a wrongful death beneficiary of Enrique L. Myles, she has no standing to bring this action as an alleged wrongful death beneficiary of Enrique L. Myles. 65 4. Vivian Myles is not an interested person under the wrongful death statute. Vivian Myles is Enrique L. Myles mother. This Court has interpreted the wrongful death statute to establish two echelons of statutory beneficiaries: (1) a preferred class and (2) a remote or deferred class. 66 The preferred class comprises a decedent s spouse and children, whereas a decedent s parents and siblings compose the deferred class. 67 When one or more members of the preferred class of wrongful death beneficiaries survives the decedent, all members of the deferred class lack standing to maintain the one wrongful death action. 68 64 R. 328-39. 65 Miss. Code Ann. 11 7 13. 66 Partyka v. Yazoo Dev. Corp., 376 So. 2d 646 (Miss. 1979). 67 Johnson ex rel. Johnson v. Med Exp. Ambulance Serv., Inc., 565 F. Supp. 2d 699 (S.D. Miss. 2008) (citing Partyka, 376 So. 2d at 648). 68 Id. at 707; see also Partyka, 376 So. 2d at 646; Logan v. Durham, 95 So. 2d 227, 228-29 (Miss. 1957); Tolliver v. Mladineo, 987 So. 2d 989, 995 (Miss. Ct. App. 2007), writ of certiorari granted - 15 -

L.J.W. is the sole and only member of the preferred class of Enrique L. Myles wrongful death beneficiaries. 69 Because Vivian Myles is a member of the deferred class of Enrique L. Myles wrongful death beneficiaries, she has no standing to maintain this action. 70 D. Because there is no dispute L.J.W. is the sole heir and wrongful death beneficiary of Enrique L. Myles, Vivian Myles, as a second-tier individual, did not have standing to initiate this wrongful death action. More than fifty years of uninterrupted precedent holds that a mother, a listed representative of the deferred class, does not have standing to bring a wrongful death action when a member of the preferred class exists. For example: In Logan v. Durham, 71 this Court held that the decedent s father, mother, and sisters did not have the right to sue for wrongful death because that exclusive right belonged only to the surviving husband and child. In Partyka, 72 this Court held that the wife of the decedent was classified in the first echelon, and therefore had the exclusive right to bring a wrongful death action, which meant the victim s mother by Tolliver v. Mladineo, 979 So. 2d 691 (table) (Miss. 2008); see Fillingame v. Patterson, 704 F. Supp. 702, 704 (S.D. Miss. 1988). 69 See Id. 70 Miss. Code Ann. 11 7 13. 71 95 So. 2d 227 (Miss. 1957). 72 376 So. 2d at 647-48. - 16 -

lacked standing as a surviving relative in the second group of beneficiaries named in the statue. In In re Estate of Moreland, 73 this Court held that the decedent s son, not the decedent s mother, was the proper person to bring the wrongful death action. In Fillingame v. Patterson, 74 a decedent s mother, sister, and brothers filed a wrongful death lawsuit. The federal district court held that the [wrongful death] statute indicates that should a spouse or children survive the decedent only they may bring suit under the statute, to the exclusion of all other surviving relatives. 75 [W]here the decedent is survived by his two minor children, only these children are the proper parties who may bring a wrongful death suit. 76 In Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 77 the Court of Appeals held that the decedent s brother lacked standing due to the existence of the husband and children....[t]he originally named plaintiff, [brother of decedent], was among 73 537 So. 2d 1337, 1344 (Miss. 1989). 74 704 F. Supp. 702 (S.D. Miss. 1988), 75 Id. at 704 (citing Partyka and Logan). 76 Id. 77 987 So. 2d 989, 995 (Miss. Ct. App. 2007). - 17 -

the class of individuals permitted to bring a wrongful death lawsuit by virtue of his sibling relationship with the decedent. However, [the brother s] standing to bring the wrongful death suit was conditional upon the event that the decedent did not have a surviving spouse or children, who would have the exclusive right to bring the wrongful death action. 78 When one or more members of the preferred class of wrongful death beneficiaries survives the decedent, all members of the deferred class lack standing to maintain the one wrongful death action. 79 In each of these cases, a listed relative in the deferred class was excluded from bringing suit because of the existence of a preferred class party. Specifically, in Logan, In re Estate of Moreland, and Fillingame, a parent was excluded from filing suit because of the existence of a child. It is undisputed that Vivian Myles, the party filing the Complaint, is a member of the deferred class and that L.J.W. is a member of the preferred class. 78 Id. at 994. 79 Johnson ex rel. Johnson, 565 F. Supp. 2d at 708. - 18 -

E. This action is a legal nullity and it must be dismissed. [T]his action cannot rightfully proceed as [Vivian Myles] has no standing as a wrongful-death beneficiary of [Enrique L. Myles]. 80 Even a motion to intervene or motion to substitute parties does not change the undisputable fact that [Vivian Myles] lacked standing to commence the suit. 81 Further, neither Vivian Myles nor L.J.W. may seek leave to amend the Complaint to avoid dismissal and any substitution of parties is improper. A lack of standing in a wrongful death action robs the court of jurisdiction to hear the case. 82 Thus, any ruling on such a case is void ab initio. It follows, then, that an amended complaint filed in a case where the original complainant lacks standing cannot relate back to the filing of the original complaint, because a complaint cannot relate back to a nullity. 83 L.J.W. cannot substitute into an action that does not exist and it was error for the Trial Court to rule otherwise. F. Appellants Motion for Contempt should be granted. 1. Authority of this Appellate Court. Section 9-1-19 of the Mississippi Code vests this Court with authority to grant the relief requested herein. Additionally, pursuant to Mississippi Rule of 80 Delta Health Group, Inc. v. Estate of Pope, 995 So. 2d 123, 126 (Miss. 2008). 81 Id. (emphasis in original). 82 Tolliver ex rel. Wrongful Death Beneficiaries of Green, 987 So. 2d at 995. 83 Id. at 995-996. - 19 -

Appellate Procedure 1, [t]his Court has original jurisdiction to grant a writ of prohibition. 84 2. Relevant law and facts. The underlying litigation to this appeal is stayed by two Orders of this Court. By filing the 2016 Lawsuit, which is essentially identical to the underlying Complaint in this Appeal, L.J.W. and her attorneys have violated this Court s Orders of June 27, 2014 and August 6, 2014 which mandated a stay of the wrongful death litigation associated with the death of Enrique L. Myles. Apparently, L.J.W. and her attorneys agree that they cannot proceed with the underlying litigation to this Appeal, but instead of complying with this Court s Orders they have wrongfully instituted an identical cause of action in the same court (although the 2016 Lawsuit has been assigned to a different judge, the Honorable Tomie Green). Not only have they violated the Stay Orders by filing the 2016 Lawsuit, they have served on Appellants 107 Requests for Admission. 85 These improper actions by L.J.W. and her attorneys have caused Appellants to incur substantial costs, expenses and fees in the defense of the 2016 Lawsuit. The 2016 Lawsuit must be dismissed pursuant to this Court s Stay Orders. 84 In re McMillin, 642 So. 2d 1336, 1339 (Miss. 1994) (citing the former Mississippi Supreme Court Rule 2(c)). 85 Exhibit Q, Motion for Contempt, Motion #2016-2746, 2014-IA-00854-SCT (June 24, 2016). - 20 -

[T]here shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned. 86 The 2013 Lawsuit was filed for the benefit of all wrongful death beneficiaries for claims arising out of the death of Enrique L. Myles. [T]he pendency of a prior action is a bar to a second action involving the same parties and the same subject matter. 87 This Court has held: This rule provides that a second action based on the same cause will generally be abated where there is a prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory, between the same parties, involving the same or substantially the same subject matter and cause of action, and in which prior action the rights of the parties may be determined and adjudged. It is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending. competing wrongful-death suits usually will involve the same parties and subject matter; therefore, a logical extension of the principle of priority jurisdictions requires that all claims for the wrongful death of a person be litigated in the same suit and in the same court the first court to properly take jurisdiction in a wrongful death action in our state courts shall, so long as that action is pending, have exclusive jurisdiction, and any other subsequently-filed action for the same death shall be of no effect. 88 86 Miss. Code 11-7-13; Sauvage v. Meadowcrest Living Center, LLC, 28 So. 3d 589 (Miss. 2010). 87 Sauvage, at 593. 88 Id. at 593-94 (internal citations omitted, emphasis added); see also, Long v. McKinney, 897 So. 2d 160 (Miss. 2004) (en banc) (holding that it is of no consequence whether the second suit is filed by a different alleged heir and that the two actions should not be consolidated). - 21 -

Here, there can be no dispute that: a) A prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory exists, The 2013 Lawsuit was filed in the Hinds County Circuit Court, First Judicial District and assigned Cause No. 251-13-442CIV. b) between the same parties, The style of the 2013 Lawsuit: Vivian Myles Individually and on behalf of all Wrongful Death Beneficiaries of Enrique L. Myles, Deceased v. TRK, LLC D/B/A Timber Ridge Townhouse Apartment; B&B Management Group, LLC; T[a]ra Burnside, Individually; and John Does 1-5. L.J.W. was subsequently substituted into the case as the party-plaintiff in the place of Vivian Myles. The first paragraph of the 2016 Lawsuit: Plaintiff, L.J.W., is a minor represented by her mother and natural guardian, Janna Marie Warnsley L.J.W. is the sole wrongful death beneficiary of her deceased father, Enrique L. Myles. Just as before, the 2016-22 -

Lawsuit is filed against TRK, LLC D/B/A Timber Ridge Townhouse Apartments, B&B Management Group, LLC, Tara Magee, individually and John Does 1-5. c) involving the same or substantially the same subject matter and cause of action, and Both lawsuits are wrongful death lawsuits against the same defendants arising out of the death of Enrique L. Myles. d) in which prior action the rights of the parties may be determined and adjudged. There is no dispute that the Circuit Court of Hinds County, Mississippi, where the 2013 Lawsuit was filed, has asserted jurisdiction over the wrongful death claims arising out of the death of Enrique L. Myles (which Appellants assert is improper) and that this court has continued to exercise jurisdiction over the 2013 Lawsuit. 89 89 See, Sauvage, at 593. - 23 -

In addition to violating this Court s Stay Orders, L.J.W. and her attorneys also have violated the above referenced statutory law and common law by instituting the 2016 Lawsuit. For these reasons, this Court should order L.J.W. and her attorneys to dismiss the 2016 Lawsuit. 3. Relief requested in Motion for Contempt. All parties to the 2016 Lawsuit and their respective counsel are currently before this Court. Appellants do not seek an Order from this Court requiring that the Trial Court in the 2016 Lawsuit do any particular thing or take any action. Rather, Appellants move this Court to compel L.J.W. to voluntarily dismiss the 2016 Lawsuit, which was filed in direct violation of this Court s prior Orders, by way of Rule 41 Stipulation to be filed by L.J.W. G. Appellants are entitled to their fees and costs. Due to Appellees late-hour admissions concerning the propriety of the relief sought by Appellants, Appellants should be awarded all costs, fees, and expenses incurred for all relevant steps taken in the defense of the claims leading up to Appellees change of heart. See prior official Comment to Miss. R. App. P. 36 (noting that Rule 36(a) gives both appellate courts discretion in taxation of costs. The Supreme Court has traditionally taxed costs as it thought proper. ). Effectively, by filing their Motion to Dismiss, Appellees are asking this Court to - 24 -

grant relief under Rule 41(a)(2) of the Mississippi Rules of Civil Procedure, which also states in relevant part: Except as provided in Paragraph (a)(1) of this rule, an action shall not be dismissed at the plaintiff s instance save upon order of the court and upon such terms and conditions as the court deems proper... 90 Appellants have expended considerable resources due to Appellees refusal to agree to stay the litigation (an offer made in November 2013). 91 Appellants are entitled to all attorneys fees, costs and expenses from and after Appellants Motion to Stay Discovery pending the findings of the paternity test. CONCLUSION Vivian Myles never had standing to file a wrongful death lawsuit arising out of the death of Enrique L. Myles. In fact, she and L.J.W. now expressly admit the same in this Appeal. Because she did not have standing to sue, this litigation is a legal nullity. For these reasons, the Trial Court s denial of 90 (Emphasis added); see also, Miss. R. Civ. P. 41(e) (which allows recovery of costs of the action previously dismissed ); and BellSouth Personal Communications, LLC v. Board of Sup rs of Hinds County, 912 So. 2d 436, 445 (Miss. 2005) (upholding an award of attorneys fees as a curative condition to the plaintiff s motion to dismiss under Miss. R. Civ. P. 41(a)(2)). Citing the Fifth Circuit, this Court stated further: [T]he primary purpose of Rule 41(a)(2) is to prevent voluntary dismissal which unfairly affects the other side and to permit the imposition of curative conditions Id. at 444-45. 91 Should this Court find it should dismiss this appeal and that it has no jurisdiction to assign attorneys fees under Rule 41(a)(2) or otherwise, then Appellants respectfully request that this Court order the Trial Court to determine and assess the appropriate award of attorneys fees, costs and expenses. A contrary finding by the Trial Court, that Appellants are not entitled to their attorneys fees, costs and expenses, would be an abuse of discretion. See generally, Roebuck v. City of Aberdeen, 671 So. 2d 49 (Miss. 1996) (noting the prior official comment provided: The court may dismiss without conditions if they have not been shown to be necessary, but should at least require that the plaintiff pay the costs of the litigation. ). - 25 -

Appellants Motion for Summary Judgment and granting of L.J.W. s Motion to Substitute were in error. Additionally, Appellants have incurred significant costs, expenses and fees in being required to litigate this matter for more than twenty months after requesting that Appellees agree to stay the case due the issues with Vivian Myles lack of standing. Appellees repeatedly refused to stay the case for fifteen months before arbitrarily making an about-face because this Court granted interlocutory appeal. Appellants are entitled to recover their costs, expenses and fees incurred in the litigation from November 13, 2013 through this appeal. Finally, Appellees should be ordered to dismiss the 2016 Lawsuit filed after this Court ordered that all underlying litigation be stayed. - 26 -

RESPECTFULLY SUBMITTED, this the 4 th day of August, 2016. TRK, LLC D/B/A TIMBER RIDGE TOWNHOUSE APARTMENTS, B&B MANAGEMENT GROUP, LLC AND TARA MAGEE BY: s/ James G. Wyly, III JAMES G. WYLY, III, MS BAR 7415 MICHAEL HELD, MS BAR 101942 ADAM HARRIS, MS BAR NO.: 102955 PHELPS DUNBAR LLP 2602 13th Street, Suite 300 Gulfport, Mississippi 39501 Telephone: 228-679-1130 Email: wylyj@phelps.com heldm@phelps.com harrisa@phelps.com - 27 -