source: Caselaw Access Project

author: CHARLES D. SUSANO, JR., J.,

license: Public Domain

text:
    George R. CALDWELL, Jr., et al. v. PBM PROPERTIES.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    June 9, 2009 Session.
    Sept. 29, 2009.
    Permission to Appeal Denied by Supreme Court March 15, 2010.
    See also 2005 WL 2739292
    Glenna W. Overton, Knoxville, Tennessee, for the appellants, George R. Caldwell, Jr., and Angie R. Caldwell.
    Robert R. Davies, Knoxville, Tennessee, for the appellee, PBM Properties.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and JOHN W. McCLARTY, J., joined.

George R. Caldwell, Jr., and Angie R. Caldwell (“the Homeowners”) sued PBM Properties and others alleging that alterations made by PBM in 1998 to the natural drainage conditions on properties that neighbor the Homeowners created a continuing temporary nuisance that recurred in 2005 and caused flooding to the Homeowners’ property. PBM filed a motion for summary judgment on the ground that the cause of action was barred by the statute of repose for improvements to real property found at Tenn.Code Ann. § 28-3-202 (2000). The trial court agreed and granted the motion. The Homeowners appeal. We affirm.

I.

A.

Except as specifically noted, the following facts are undisputed for the purposes of this appeal. The Homeowners have owned their home since 1995. In 1998, PBM purchased property in the vicinity of the Homeowners and developed a subdivision known as Blue Grass Heights. Blue Grass Heights is situated at an elevation higher than the Homeowners’ property. In the course of building the subdivision, PBM altered the natural drainage and thereby increased the flow of surface water onto the Homeowners’ property.

Heavy rains in 1999 flooded the Homeowners’ property, including their house. The Homeowners brought suit against PBM alleging that PBM had created a permanent nuisance, or, alternatively, a temporary nuisance. The jury rejected the permanent nuisance argument, but awarded the Homeowners damages in the amount of $3,820.50 for the 1999 flooding. The jury also rejected a claim that the same conditions were responsible for flooding in 2002. Interestingly enough, the Homeowners’ own expert acknowledged that the 2002 event was from such heavy rainfall that he could not assign responsibility for the flooding to PBM. We affirmed the judgment entered on the jury verdict in Caldwell v. PBM Properties, No. E2004-02512-COA-R3-CV, 2005 WL 2739292 (Tenn.Ct.App., E.S., filed October 24, 2005) (Caldwell I).

Unfortunately, in 2005 after heavy rains in the area, the problem recurred. The Homeowners experienced severe flooding to their property and inside their house with 34 inches of water in the basement. According to the Homeowners, the condition created in 1998 continued unabated and is the cause of the 2005 flooding. According to PBM, the problem was abated as noted by this Court in Caldwell I.

B.

The Homeowners filed this second suit against PBM and Fred Long Construction Concepts on September 12, 2005, alleging that the continuing unabated nuisance resulted in approximately three feet of water in their basement on May 20, 2005. The complaint acknowledges that “PBM undertook development of Blue Grass Heights Subdivision in Spring of 1998, and completed said development on June 30, 1998.” The complaint alleges that Fred Long also denuded his property at some unspecified time and thereby increased the water runoff.

PBM filed its motion for summary judgment, and an amended motion, asserting that “this claim is barred by the four-year statute of repose set forth at Tenn.Code Ann. § 28-3-202.” The motion was supported by the affidavit of Eric Mosely which states, in pertinent part:

I am a partner in PBM Properties.

PBM owned Bluegrass Heights Subdivision in early 1998, and developed Bluegrass Heights Subdivision.
PBM completed all of its development of Bluegrass Heights Subdivision on June 30, 1998, and PBM sold its entire interest in the Bluegrass Heights Subdivision property in June, 1998.
All work on Bluegrass Heights Subdivision was completed by June 80, 1998, and PBM no longer had any ownership in the property as of June 30, 1998.

(Paragraph numbering in original omitted.) The Homeowners responded by conceding “that PBM completed all the work by June 30, 1998,” but arguing that “[w]here the nuisance is temporary and continuous in character, and gives rise to a separate cause of action, a recovery may be had for damages accruing within the statutory period next preceding the commencement of the action, although more than the statutory period has elapsed since the creation of the nuisance.” The trial court disagreed with the Homeowners and granted PBM’s motion. Since the cause of action against Fred Long Construction Concepts remained pending, the Homeowners moved the trial court for permission to appeal with respect to PBM, which the trial court granted. This Court denied the Homeowners’ Tenn. R.App. P. 9 application. The summary judgment in favor of PBM became final and appealable when the Homeowners filed a notice and order of voluntary dismissal as to Fred Long Construction Concepts, which the trial court approved and entered on August 8, 2008. This timely appeal followed.

II.

The parties agree to the substance of the one issue on appeal, but we prefer PBM’s statement of the issue as more complete, which we quote verbatim from PBM’s brief as follows:

■Whether the trial court properly granted summary judgment for [PBM] based on the four-year statute of repose set forth at Tenn.Code Ann. § 28-3-202.

III.

A.

Our review of a factual record after a trial court grants summary judgment requires us to view the facts in the light most favorable to the nonmoving party even to the point of discarding any reliance on evidence that tends to counter the non-movant’s evidence. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). The review is de novo with no presumption of correctness as to the trial court’s legal conclusions because the entry of a summary judgment involves a pure question of law. Chrisman v. Hill Home Development, Inc., 978 S.W.2d 535, 538 (Tenn.1998).

B.

We begin our discussion with the language of Tenn.Code Ann. § 28-3-202:

All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement.

The Supreme Court has expressly held that the quoted statute applies to causes of action based on nuisance in general and water diversion nuisance in particular. See Chrisman, 978 S.W.2d at 585. The Chrismans had purchased a home in 1988 that the defendant Hill Home Development had built in a subdivision. Id. at 537. Not long after moving in, the Chrismans experienced flooding but did not bring suit until 1994 after a severe storm flooded the interior of their home. Id. After holding that there was no evidence to support a contention that Hill had fraudulently concealed the condition, the Court considered the “claim that ... Hill Home Development created a continuing nuisance in the construction of the drainage system in [the subdivision].” Id. at 539. The trial court had granted summary judgment, but we reversed upon “finding that the continuation of the nuisance thrusts the claim well into any limitations period.” Id.

The Supreme Court characterized Tenn. Code Ann. § 28-3-202 as a “statute of repose [that] will bar an action four years after substantial completion, regardless of when the plaintiff may have reasonably discovered the injury.” Id. Having lost the fraudulent concealment argument, and in the face of undisputable proof that construction was substantially completed more than six years before they sued, the Chrismans argued only that the statute applied to negligence claims and not to nuisance claims which allow liability without a finding of negligence. Id. at 540. The High Court rejected the argument, noting that by “enacting the statute, the General Assembly intended to insulate contractors, architects, engineers, and others from liability for defective construction or design of improvements to realty where the injury happens more than four years after substantial completion of the improvement.” Id. The relevant inquiry then became whether the allegations of the complaint sought to impose liability “for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property.” Id. at 541. The core allegations of the complaint in Chrisman bear repeating here:

By the construction of [the] subdivision, Defendant Hill has created and maintained a temporary continuing drainage nuisance which has caused flooding onto Plaintiffs’ property. Said flooding has inflicted physical harm to Plaintiffs’ property and caused and will cause loss of use and enjoyment of Plaintiffs of their property....
* * *
Hill, in his construction of [the] subdivision, was negligent in that measures were not installed in [the] subdivision to prevent the increases in runoff generated by construction of [the] subdivision to not cause flooding of Plaintiffs’ property.

Id. at 540-41 (omissions in original; paragraph numbers omitted). The Supreme Court found that the complaint, therefore, did allege a “deficiency” in an “improvement to real property” so as to implicate the statute of repose. “At the heart of the plaintiffs’ nuisance claim lies the allegation that the drainage system is deficient.” Id. at 541.

As in Chrisman, there is no question but that the project in the instant case was substantially completed more than four years before the filing of suit. As previously noted, the Homeowners agree that the project was completed in 1998.

The allegations at the heart of the present complaint are as follows:

PBM undertook development of Blue Grass Heights Subdivision in Spring of 1998, and completed said development on June 30, 1998. The pre-existing condition of what is now Blue Grass Heights was in trees and pasture. In the course of said development, PBM had its property denuded which generated increases in runoff and associated sediment which flowed onto Plaintiffs’ property beginning in 1998. Plaintiffs’ residence lies at a lower elevation than the property owned by PBM. Flood waters and associated sediment has entered and continues to enter Plaintiffs’ residence and garage causing damage to personalty and physical damage to Plaintiffs’ residence and garage.
In 2002, Plaintiffs tried a nuisance case against PBM, Knox County Circuit Court No. 2-711-99. The jury returned a verdict finding the Defendant PBM one hundred percent (100%) liable for a temporary nuisance. Since the jury verdict, Defendant PBM has done nothing to abate the nuisance. Therefore Plaintiffs’ property remains in jeopardy of being flooded. On May 20, 2005, the Plaintiffs suffered flooding to their residence receiving thirty-four inches (34") of water in their basement....

(Paragraph numbering in original omitted.) We believe that, as in Chrisman, these allegations clearly seek to impose liability on the basis of an alleged “deficiency” in an “improvement to real property.”

PBM makes the interesting assertion that our affirmance in Caldwell I necessarily means that the jury found the nuisance had been abated. On the other hand, the Homeowners argue that the nuisance had not been abated as shown by the 2005 flooding and affidavits of the parties. We are not convinced that our mention of actual abatement in Caldwell I was as definite and necessary to the resolution of the case as PBM suggests. Our duty and scope of review in Caldwell I was not to divine the particulars of the deliberations or verdict, but rather to look for any material evidence — discarding any contrary proof or inferences — to support a finding that the nuisance was temporary. 2005 WL 2739292 at *6. The nuisance was to be considered temporary if any material evidence in the record supported a finding that the problem could be corrected, regardless of whether it had been co'rrected. Id. at *1. We concluded our discussion with the observation that “[tjhere was material evidence presented to the jury for it to find that the nuisance was temporary, and that the nuisance not only could be abated, but, had been abated.” (Emphasis added.) In other words, the jury might have found that the nuisance could be abated but had not, or perhaps it found that the nuisance could be abated and had been abated. In short, in this new case, we have, at best as far as PBM is concerned, an unknown that we must resolve in favor of the Homeowners for the purpose of reviewing the trial court’s grant of summary judgment.

Since we must assume there has been a failure to abate, the relevant question becomes whether that failure is significant in light of the holding in Chrisman. We think not. In Chrisman, it was alleged that the temporary nuisance was also “continuing” and that the creator of the nuisance also “maintained” a nuisance. Chrisman, 978 S.W.2d at 540. It is noteworthy that, in Chrisman, the nuisance once created in 1988 or before did not result in the damages sued on until a 1992 storm. Id. at 537. This can mean nothing other than that the temporary nuisance went unabated after it was created until it did the damage long after being created. In the case now before us, the complaint specifically alleges that the jury finding in the previous case represents a binding determination that PBM is “maintaining a temporary and continuing nuisance.” The complaint specifically alleges that “PBM is liable for creating and maintaining a nuisance.”

It seems to us that the Homeowners are arguing, at least implicitly, that the failure to abate means the project was never completed, therefore the statute of repose does not apply. In Meyer v. Bryson, 891 S.W.2d 223 (Tenn.Ct.App.1994), a case about uncorrected defects in a house, this Court rejected a similar argument as follows:

The plaintiffs argue that the house has never been substantially completed because there are still defects in the house that have not been repaired. We cannot accept this argument. To do so would, in essence, defeat the purpose of the statute of [repose] set out in T.C.A. § 28-3-202.

Id. at 225. Thus, we reject any contention that the statute cannot apply simply because of a failure to abate.

Since we have been shown nothing in the facts of the present case to take it out of the ambit of Chrisman, we will consider whether the Homeowners have shown us some reason in the laio why Chrisman does not control the outcome of this case. The Homeowners argue that the “statute of repose does not apply to a temporary and continuing nuisance.” This argument obviously ignores the holding of Chrisman and is patently wrong.

The Homeowners present several variations of the more interesting proposition that it has long been the law in Tennessee that a person damaged by a recurring temporaiy nuisance can bring an action based on the recurrence even though the recurrence is outside the express statute of limitations. The Homeowners rely on Pate v. City of Martin, 614 S.W.2d 46 (Tenn.1981); Kind v. Johnson City, 63 Tenn.App. 666, 478 S.W.2d 63 (1970); and Anderson v. American Limestone Co., Inc., 168 S.W.3d 757 (Tenn.Ct.App.2004). The problem with this argument is that it fails to appreciate or acknowledge the difference between a statute of repose and a statute of limitations. The Supreme Court summarized the distinction succinctly in Calaway v. Schucker, 193 S.W.3d 509 (Tenn.2005), as follows:

A statute of limitations normally governs the time within which legal proceedings must be commenced after a cause of action accrues. A statute of repose, on the other hand, limits the time within which an action may be brought and is unrelated to the accrual of any cause of action.
A further distinction is that statutes of repose are substantive ... and extinguish both the right and the remedy while statutes of limitations are procedural, extinguishing only the remedy. Thus, a statute of repose typically does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action from ever arising.... The injured party literally has no cause of action.

Id. at 515 (citations and quotations omitted; emphasis in original). Tenn.Code Ann. § 28-3-202 is a statute of repose which is “entirely unrelated to the accrual of any cause of action, since [it] begin[s] to run on the date of substantial completion as opposed to the date of injury or damage.” Watts v. Putnam County, 525 S.W.2d 488, 491 (Tenn.1975). The dates of injury and discovery do not matter to this statute of repose which establishes a “ceiling” beyond which the cause of action cannot exist from the date of substantial completion. Id.; see Chrisman, 978 S.W.2d at 539. Therefore, the traditional three-year statute of limitations for injury to property found at Tenn.Code Ann. § 28-3-105 (2000), cannot extend the existence of a cause of action outside the ceiling “superimposed” by Tenn.Code Ann. § 28-3-202. Watts, 525 S.W.2d at 491.

The cases the Homeowners rely upon are simply not applicable to the statute of repose. American Limestone, 168 S.W.3d at 757, concerns the statute of limitations and not the statute of repose. Id. at 761 n. 1. Thus, a recurrence commenced a new opportunity to “recover damages occurring within the limitations period, even though the nuisance [had] existed longer than the limitations period.” Id. at 761. American Limestone relied on Kind, 478 S.W.2d at 63, where the defendant “plead both the one year (T.C.A .... 23-1424 [now Tenn.Code Ann. § 28-3-104]) and three year (T.C.A. § 28-305 [now Tenn. Code Ann. § 28-3-105]) statutes of limitation” without any mention of a statute of repose. Id. at 64. Thus, the court was concerned with whether a new cause of action had accrued from a new flooding event. Id. at 66. Pate appears to be no more than a recitation of the general rule that a recurrence of a temporary nuisance results in the accrual of a new cause of action. 614 S.W.2d at 48. Pate does not discuss either a statute of limitations or a statute of repose; therefore it cannot be used to overcome the express holding of Chrisman that the statute of repose applies to a temporary recurring nuisance. The simple answer to the Homeowners’ argument is that no cause of action could accrue from the 2005 flooding because any such cause of action had been extinguished by the statute of repose before it ever existed. Accordingly, we hold that the trial court correctly awarded PBM summary judgment.

IV.

The judgment of the trial court is affirmed. Cost on appeal are taxed to the appellants, George R. Caldwell, Jr., and Angie R. Caldwell. This case is remanded, pursuant to applicable law, for collection of costs assessed below.

      . Shortly before filing the prior suit against PBM, the Homeowners achieved a substantial settlement with at least one other neighboring developer.

      . The complaint includes "Eric Mosely, Partner” as a defendant in the caption but never makes further mention of him. The notice of appeal lists all defendants in the style and purports to appeal "the final judgment from the Trial Court entered on the 8th day of August 2008.” The Homeowners’ briefs on appeal completely ignore Mr. Mosely. PBM is the only party listed by its attorney as an appellee on PBM's appellate brief. Our holding in this case with respect to PBM applies with equal force to Mr. Mosely.

      . The Homeowners' counsel in this matter was also counsel of record for the plaintiffs in Chrisman.

      . American Limestone, Pate, and Kind all appear to be against the owner-operators of the various premises. The statute of repose is not a defense to "any person in actual possession or ... control ... of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury.” Tenn.Code Ann. § 28-3-205 (2000).


text:
    THURSTON HENSLEY v. CSX TRANSPORTATION, INC.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Aug. 6, 2009 Session.
    Aug. 26, 2009.
    Permission to Appeal Denied by Supreme Court March 1, 2010.

      Gareth S. Aden and Christopher W. Cardwell, Nashville, Tennessee; Randall A. Jordan, Grant Buckley, Karen Jenkins Young and Christopher R. Jordan, St. Si-mons Island, Georgia; H. Dean Clements, Chattanooga, Tennessee; and Evan M. Tager, Dan Himmelfarb, and Theodore J. Weiman, Washington, D.C., for the appellant, CSX Transportation, Inc.
    H. Douglas Nichol, Knoxville, Tennessee, and Joseph D. Satterley, Louisville, Kentucky, for the appellee, Thurston Hensley.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which D. MICHAEL SWINEY and JOHN W. McCLARTY, JJ., joined.

This case is back before us on remand from the United States Supreme Court “for further proceedings not inconsistent with [its] opinion” in CSX Transportation, Inc. v. Hensley, — U.S. -, 129 S.Ct. 2139, 173 L.Ed.2d 1184 (U.S.2009) (Hensley II). The case was first before us in Hensley v. CSX Transportation, Inc., 278 S.W.3d 282 (Tenn.Ct.App.2008) (Hensley I). Hensley I was an appeal by CSX Transportation, Inc. (“Railroad”), of a judgment entered on a jury verdict in the amount of $5,000,000 in favor of Thurston Hensley (“Employee”). Employee sued pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60 (2008), to recover for asbestosis, a lung disease caused by his exposure to asbestos while working for Railroad some 30 plus years, and toxic encephalophathy, a brain illness caused by exposure to a solvent Employee used for many years. We affirmed the judgment in Hensley I. Of particular significance at this point is our holding in Hensley I that the trial court did not err in refusing to instruct the jury, as requested by Railroad, that Employee’s fear of cancer must be “genuine and serious” to be compensable. Hensley II reversed our ruling, and held that “[t]he trial court should have given the substance of the requested instructions.” 129 S.Ct. at 2142. Because there is a “reasonable probability” under federal law that the error affected the judgment, we reverse the judgment of the trial court and remand for a new trial limited to the issue of damages.

I.

As soon as practicable after receiving the Hensley II opinion, we entered an order which outlines the issues we will now address:

This matter is before the Court on remand from the United States Supreme Court. The High Court reversed our judgment and opinion on petition to rehear entered April 3, 2008. The Court did so with the decree that the case “is remanded for further proceedings not inconsistent with this opinion.” The U.S. Supreme Court did not define what those “further proceedings” might be. It may be that the Court anticipated that the Court of Appeals of Tennessee would, without further ado, remand this matter to the trial court for a new trial; but the court did not expressly say this. We are interested in expediting the resolution of this litigation. Accordingly, the appellant is directed to file a brief limited to and addressing the following issues:
1. Does the United States Supreme Court’s opinion of June 1, 2009, preclude the Tennessee Court of Appeals from now reviewing the record of the trial court’s proceedings to determine whether, under Tenn. R.App. P. 36(b), the failure to charge the jury on the standard for fear-of-cancer damages is an “error involving a substantial right [that] more probably than not affected the judgment”?
2. Did the error of the trial court in failing to charge the jury on the standard for fear-of-cancer damages amount to an “error involving a substantial right [that] more probably than not affected the judgment”?
The appellant’s brief will be physically in the hands of the clerk of this Court on or before June 26, 2009. The appellee’s brief will be physically in the hands of the clerk on or before July 13, 2009. The appellant’s reply brief, if any, will be physically in the hands of the clerk on or before July 24, 2009.

We entertained argument on August 6, 2009. Since the facts of the case have been dealt with at some length in both Hensley I and Hensley II, we invite the curious reader to those opinions for a more complete discussion. For the present context, it is enough to know that the case went to the jury on damages caused by Employee’s injuries from asbestosis and toxic encephalopathy. Asbestosis is a lung injury caused by lengthy exposure to asbestos. Persons with asbestosis are at an increased risk for cancer. Encephalopathy is a brain injury, caused in this case by exposure to chemicals. Employee claimed pain and suffering damages from the physical injuries he has sustained, including pain and suffering based on his fear that his asbestosis will turn into cancer. Under FELA, fear of cancer is a recoverable aspect of damages, but only if the fear is “genuine and serious.” Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 157, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003).

Liability is established at this point and the parties agree that if our opinion requires a new trial, the trial should be limited to damages. We will discuss further facts relevant to harmless error when and if we reach that point in our discussion. In keeping with our “interest! ] in expediting the resolution of this litigation,” we move directly to our discussion of the above stated issues.

II.

A.

The parties agree that on remand from a higher court we are only precluded from considering issues that were expressly or impliedly decided by the higher court. See Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.1992). At argument, Railroad conceded that Hensley II did not expressly decide whether the failure to give the subject instruction was harmful or harmless, but it maintained that the issue was impliedly decided.

Railroad offers several arguments why the opinion in Hensley II should be read to impliedly hold that the refused instruction was harmful. The first and second arguments make more sense if combined. Railroad contends that it made the presentation that it was harmed in its petition for review to the U.S. Supreme Court, and, that by taking the appeal and reversing our opinion without briefing or argument, the Supreme Court must have found the error was prejudicial. Railroad also asserts that the following statement in Hensley II is inconsistent with a finding that the missing instruction was harmless error: “Instructing the jury on the standard for fear-or-cancer damages would not have been futile.” (Citing 129 S.Ct. at 2141). Railroad relies on Norfolk Southern Railway v. Sorrell, 549 U.S. 158, 172, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), for two final, related points. One is that where the Supreme Court’s decision allows harmless error analysis on remand, it knows how to direct that as in Sorrell. The second is that a “vacated” judgment as in Sorrell is susceptible to harmless error review, but a “reversed” judgment is not. The last two points are textbook examples of over generalization. The first two points are sheer speculation. We think it much more likely that the High Court simply found our Hensley I opinion to be an ideal vehicle to make a footnoted observation in Ayers, 538 U.S. at 159, 123 S.Ct. 1210, black letter law in FELA cases. See Hensley II, 129 S.Ct. at 2142-44 (Stevens, J. dissenting). We are left, then, only with the statement from Hensley II, that it would not have been futile to give the instruction, to support the argument that the Supreme Court impliedly held the failure to give the instruction harmed Railroad. We do not discount this argument, but we are not convinced the one statement is dispositive.

We believe the majority’s silence in the face of Justice Stevens’ observation, in footnote 2 of his dissent, speaks volumes. Justice Stevens stated: “Although the Court concludes that the trial court erred by not giving a genuine-and-serious charge, the question of whether the instructional error was nevertheless harmless remains open to review on remand by the Tennessee Court of Appeals.” Id. at 2144 n. 2. Justice Stevens based his statement, not on conjecture, but on cases that stand for the principle that “while there are some errors to which [harmless-error analysis] does not apply, they are the exception and not the rule.” Hedgpeth v. Pulido, — U.S. -, -, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008); Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); see Neder v. United States, 527 U.S. 1, 11, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). These cases involve general verdicts of criminal conviction. The principle stated should apply with equal, if not greater, force in civil cases. We find nothing in the opinion in Hensley II to make this case the exception that is not subject to harmless error analysis. Further, any suggestion by the majority that would seem to make this case the exception is outweighed by the lack of response to Justice Stevens’ footnote 2. Accordingly we hold that the opinion in Hensley II does not preclude us from considering whether the failure to give the “genuine and serious” charge was harmless.

B.

Before moving to the harmless error analysis, we will deal, briefly, with an issue Railroad volunteered despite our clear order that briefs were to be limited to the specific issues we saw as important. Railroad argues that Employee has waived the issue of harmless error by failing to address it in Hensley I and by failing to address it in response to Railroad’s petitions to the Tennessee Supreme Court and the United States Supreme Court. We are not persuaded. Frankly, we do not care whether and to what extent Employee talked about harmless error in papers that he tiled directed at whether the case was appropriate for further review. In neither our state system, nor in the federal system, is a response to an application or petition for review mandatory. Tenn. R.App. P. 11; Sup.Ct. Rule 15.1. We note that the full briefing cycle did not happen in either court as our Supreme Court did not grant permission to appeal and the United States Supreme Court announced its opinion without the benefit of briefing. It would seem harsh to us to find waiver of an issue based on the failure to address it in a paper that was not required to be filed.

We strongly disagree with the argument that Employee neglected the issue of whether or not the missing instruction caused harm in his brief filed in Hensley I. Employee concedes that he did not have a heading or issue bearing the caption “Harmless Error” in his brief, but argues that he addressed the substance. We agree it is the substance that is controlling rather than the label. Northeast Knox Utility Dist. v. Stanfort Construction, Inc., 206 S.W.3d 454, 461 (Tenn.Ct.App.2006). We have reviewed Employee’s brief in Hensley I and we believe a fair reading shows that it argues there was no harm in failing to give the genuine and serious instruction. There are multiple passages we could repeat, including the entire argument on sufficiency of the evidence, but the following should suffice as an example:

CSX simply has not provided this Court with any authority demonstrating it is appropriate to reverse the jury’s verdict on the basis of the fear of cancer instructions. The jury returned a verdict of $5,000,000 in favor of Hensley on the basis of the totality of the evidence. To single out the fear of cancer issue takes an extraordinarily narrow view of the overwhelming evidence presented at trial of Hensley’s physical and mental problems caused by CSX’s failure to provide Hensley with a safe work place. Accordingly, the Court should affirm the jury’s verdict and the Trial Court’s judgment.

Looking back, had we concluded in Hensley I that the trial court erred in failing to give the instruction, we would have considered the above statement, and numerous other ones of similar effect, sufficient to preserve the issue of harmless error.

It is also appropriate, on the issues of past waiver and present disposition, to consider the impact of Tenn. R.App. P 13(b) and 36(b). The latter provides: “A final judgment ... shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” We have been furnished with no authority from this state for the proposition that Rule 36(b) is anything other than what it says — a directive to reviewing courts to consider1, with or without prompting from the parties, whether any error found “affected the judgment.” The former gives us discretion, even as to issues not argued, to consider them in the interest of justice. If the error in failing to give the genuine and serious charge did not, in our opinion, affect the verdict, we would exercise our discretion to sustain the verdict on a harmless error analysis.

C.

Now we consider whether the missing instruction constituted harmless error. The parties have appropriately reminded us of a point of law we noted in Hensley I; i e., “State procedural rules give way to federal law if ‘application of [state] rules would interfere with a party’s substantive federal rights or defenses.’ ” Hensley I, 278 S.W.3d at 286 (quoting Pomeroy v. Illinois Cent. R.R. Co., No. W2004-01238-COA-R3-CV, 2005 WL 1217590, at *12 (Tenn.Ct.App. W.S., filed May 19, 2005)). Taken one step further, where a procedural rule determines the outcome of an FELA verdict, such as whether or not to grant a new trial, the federal standard should be applied if it is materially different from the state standard. Blackburn v. CSX Transportation, Inc., No. M2006-01352-COA-R10-CV, 2008 WL 2278497 at *11 (Tenn.Ct.App. M.S., filed May 30, 2008); Jordan v. Burlington N. Santa Fe R.R., W2007-00436-COA-R3-CV, 2009 WL 112561 at *17 n. 12 (Tenn.Ct.App. W.S., filed Jan. 15, 2009).

Our harmless error rule, previously quoted, looks at whether or not the error “more probably than not affected the judgment.” Tenn. R.App. P 36(b). The parties agree that the federal standard is, as stated in United States v. Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Id. (brackets omitted). The parties, however, disagree as to the application of the federal standard. Employee argues that probability is probability; therefore, the federal standard is equivalent to our state standard. Railroad argues that “even if the error did not ‘more probably than not’ affect the judgment [under the state standard], there is surely a ‘reasonable probability’ that it did [under the federal standard].” The language in Benitez supports Railroad’s contention that the federal standard requires something less than a showing by a preponderance of the evidence that the error affected the outcome. “The reasonable-probability standard is not the same as ... a requirement that a defendant prove by a preponderance of the evidence that but for the error things would have been different.” Id. at 83 n. 9, 124 S.Ct. 2333. As pointed out by Justice Sea-lia in dissent, these “gradations of probability” are not easy to grasp or apply. Benitez, 542 U.S. at 86, 124 S.Ct. 2333 (Scalia, J., dissenting). The clearest guidance we can find in Benitez, and the rule we will endeavor to apply, is stated as follows:

A defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is “sufficient to undermine confidence in the outcome” of the proceeding.

Id. at 83, 124 S.Ct. 2333 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

We will now consider whether the defendant has shown us that in this record there is enough of a probability of a different outcome to undermine our confidence in the verdict. One factor that undermines our confidence that the verdict would be the same with the instruction as without it is the Supreme Court’s pronouncement that “rationality and careful regard for the court’s instructions will confine and exclude jurors’ raw emotions.” Hensley II, 129 S.Ct. at 2141. In Hensley I, we concluded that other devices were better suited to controlling the dangers of passion and prejudice, but recognized that passion and prejudice are real problems to be dealt with in these type of cases:

One purpose of the “genuine and serious” requirement, we believe, is to protect defendants from excessive verdicts based on appeals to jurors’ passions with respect to the deeply emotional issue of cancer. Because the mere suggestion of a possibility of cancer has the potential to evoke raw emotions, a juror may be swayed by the barest shred of evidence that a defendant has caused a plaintiff to suffer an increased risk and/or fear of cancer, and may be tempted to overcompensate the plaintiff for such a risk or fear.

278 S.W.3d at 300.

The record in this case is certainly susceptible to the interpretation that some overcompensation, based on passion and prejudice, occurred in this verdict. The brain injury from toxic encephalopathy did not prevent Employee, who was 67 years of age at the time of trial, from driving. Also, up until the time of trial, he continued to give occasional sermons as a guest preacher. An expert witness for Railroad tested Employee’s IQ at 115, or, above average. Of course, there was contrary evidence, but there is no doubt Employee continued to function despite his injuries and fears. Counsel for Employee asked the jury to award $3,000,000 as compensation for pain and suffering, including mental suffering for fear of cancer. The jury awarded a total of $5,000,000.

A related factor that is appropriate to consider is whether the evidence was such that we can decipher whether or not the error factored into the verdict. Grandstaff v. Hawks, 36 S.W.3d 482, 497 n. 28 (Tenn.Ct.App.2000). An instructional error is more likely to be harmful if the evidence on the question is close. Carney v. Coca-Cola Bottling Works, 856 S.W.2d 147, 150 (Tenn.Ct.App.1993). Where the evidence is close, the missing instruction may have been the “single factor that turned the tide.” Id. The normal concern is compounded in the present case by the U.S. Supreme Court’s directive that a plaintiff seeking “fear of cancer damages in ... FELA cases ... must satisfy a high standard in order to obtain them.” Hensley II, 129 S.Ct. at 2141. The “genuine and serious” instruction is purposed to prevent an award based on “slight evidence.” Id. We held in Hensley I that there was material evidence to support the verdict, but the Supreme Court put that holding in a different perspective for instructional error analysis: “[A] properly instructed jury could find that a plaintiffs fear [of cancer] is not ‘genuine and serious’ even when there is legally sufficient evidence for the jury to rule for the plaintiff on the issue.” Id. In hindsight, the following evidence we recited as a basis for the verdict should be examined to see if the instruction may have “turned the tide”:

Railroad makes much of Employee’s testimony that he has “some concern” over getting cancer “in the back of my mind,” like “a little cloud” hanging over his head.... He also testified that he experiences “anxiety” — a term referenced in Seaford [v. Norfolk S. Ry. Co., 159 Ohio App.3d 374, 824 N.E.2d 94 (Ohio Ct.App. 2004)], in contrast to mere “worry” and “concern,” as part of the dictionary definition of fear: “the general term for the anxiety and agitation felt at the presence of danger.” 824 N.E.2d at 112 (quoting Webster’s New World Dictionary ). Employee also testified that he takes Xanax for his anxiety, in part because of his fear of cancer[.]
* * ⅜
Railroad asserts that “[t]his testimony ... was subsequently impeached on cross-examination,” when Employee testified that he began taking Xanax before being diagnosed with asbestosis. Yet that fact does not necessarily preclude a jury finding that at least part of the reason Employee has continued to take Xanax is because of his fear of cancer. ... Similarly, Dr. Perry’s testimony that he does not know the cause of Employee’s anxiety does not, as a matter of law, establish that no jury could possibly conclude that fear of cancer was one of the causes.

Hensley I, 278 S.W.3d at 301 (bracketed material added). We have read Employee’s brief carefully for additional citations to the record reflecting additional evidence to show that the fear of cancer was genuine and serious. Other than references to medical testimony that Employee was indeed at an increased risk for cancer, and, therefore, has a basis for his fear, we have found nothing. This does not help our analysis because we have accepted as true that Employee is at an increased risk for cancer. Employee concedes that in this general verdict it is impossible to determine the amount the jury awarded for any particular item of damages. Employee suggests that the jury could easily have awarded $5,000,000 based on medical expenses, lost earnings, lung problems and damages for the worry and concern without regard to the fear of cancer. Therefore, Employee asks us to conclude that the award would have been the same with or without the instruction. Employee’s approach is inconsistent with this large verdict, and is an invitation to abdicate our duty to re-examine our confidence in the outcome in light of probabilities and not speculation.

We believe that the evidence on the fear of cancer claim, while legally sufficient to sustain the verdict, was close. This factor weighs against finding the error was harmless.

Another factor that influences the degree of harm from an instructional error is the extent other instructions in the charge covered the subject matter. Gorman v. Earhart, 876 S.W.2d 832, 836-37 (Tenn.1994). Employee argues that the “raw emotion” concern is dispelled by an instruction from the trial court that the jury “must not be influenced by any personal likes or dislikes, prejudice, or sympathy.” Likewise, Employee argues that the concern about the verdict being based on “slight evidence” is overcome by instructions that the verdict must be proven by “a preponderance of the evidence,” could not be based on “mere speculation and conjecture,” and should be “a reasonable sum to compensate” for injuries Employee sustained. In light of the U.S. Supreme Court’s holding in Hensley II, we are reluctant to say that this instruction, which the Highest Court in the Land has held was required, was covered or explained in other, standard, parts of the jury charge. Nevertheless, we have considered Employee’s arguments and find them to be without merit. If standard charges, given in almost all civil trials, cured substantive errors in the instructions, there would be few, if any, harmful errors. Also, accepting the holding of Hensley II, as we must, there is nothing else in the charge that deals with the nature of the fear that must be proven. Thus, we are not persuaded that other parts of the charge covered the subject matter.

The final factor we will consider, at the urging of Railroad, is the extent to which the subject matter that the instruction addresses, or fails to address, is at “the heart of the case.” See Hughes v. Lumbermens Mut. Cas. Co., 2 S.W.3d 218, 225 (Tenn.Ct.App.1999). We do not disagree this is a factor for consideration, but our focus is a little different from Railroad’s. Railroad tries to convince us Employee made fear of cancer the focus of the case, by statements such as:

At the beginning of his opening statement, Hensley’s counsel listed the things that “[t]his case is about,” one of which was “an increased risk and fear of cancer.” Soon thereafter, he informed the jury that the case involved “three basic questions,” one of which was “what is the proper compensation for all the damage the railroad has caused to Mr. Hensley’s lung and his brain, including the increased risk and fear of cancer?” Counsel later told the jury that “one of the issues that you’ll be considering is whether he’s at increased risk and fear of this cancer” and that “[y]ou’re going to hear about the future mental and physical pain and suffering,” including Hensley’s “eoncern[ ] about cancer, con-cerní ] about dying of his condition, con-cerní ] about the fact that he can’t take care of his wife.” Counsel also referred to the risk and fear of asbestos-related cancer four other times during his opening.

(Emphasis added, brackets in original). The above argument convinces us that, rather than being the “focus,” fear of cancer was “one ” of the issues. But, this does not end our inquiry. Even though we are not necessarily convinced fear of cancer was the “heart” of the case, we would agree it was a vital organ. Given the size of the verdict, there is a reasonable probability that the jury awarded damages for fear of cancer. If they did, they did it based on an incomplete instruction that, according to law established in Hensley II, did not give them all the information they needed to make that decision. As explained in Bara v. Clarksville Memorial Health Systems, Inc., 104 S.W.3d 1 (Tenn.Ct.App.2002), “the soundness of every jury verdict rests on the fairness and accuracy of the trial court’s instruction. Since the instructions are the sole source of the legal principles needed to guide the jury’s deliberations, trial courts must give substantially accurate instructions concerning the law applicable to the matters at issue.” Id. at 3-4 (quoting Ladd v. Honda Motor Co., 939 S.W.2d 83, 93 (Tenn.Ct.App.1996)). Since fear of cancer was definitely one of the “matters at issue” upon which the jury probably based its award, we think this factor weighs against a finding of harmless error.

In summary, we have applied the federal standard of harmless error because it seems to require less of the defendant than establishing, to a preponderance, that the verdict would have been the same without the error. We have looked to numerous cases for factors that have proven useful in determining whether instructional error is harmless. Our confidence in the verdict is undermined by the fact that fear of cancer claims are likely to invoke passion and prejudice. The evidence was close enough that the missing instruction may have turned the tide. We do not find other instructions covering the subject matter that the “genuine and serious” instruction was intended to cover. The fear of cancer claim was probably one of the matters in the case that drove the award to $5,000,000. We hold that Railroad has shown a probability of a different result sufficient to undermine our confidence in the verdict. Accordingly, we hold that the error was not harmless.

III.

To the extent the parties have advanced arguments not directly invited by our order, we have not attempted to address the “jot and tittle” of every contention. We will, however, briefly address one collateral argument made by Employee because it will help us provide guidance to the parties and the trial court as to what is and is not subject to debate on remand. Employee argues “despite the fact that CSX was entitled to a fear of cancer instruction, its proposed instructions [30 and 33] were incorrect statements of law and therefore not permissible under Tennessee law.” Therefore, Employee argues, this court and the trial court are free to reinstate the verdict.

Employee’s argument overlooks the doctrine of law of the case which is said to promote efficiency, consistency and obedience of lower courts to the decisions of higher courts. Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn.Ct.App.2001). “[U]nder the law of the case doctrine, an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal.” Id. Thus, we are bound and the trial court is bound as to issues decided in Hensley II. And, the trial court is bound as to issues we decide in this opinion as well as those issues we decided in Hensley I, except as Hensley I was modified by Hensley II.

As relates to the “genuine and serious” instruction, the Supreme Court expressly held as follows in Hensley II:

The ruling of the Tennessee Court of Appeals [in Hensley I] conflicts with Ayers. The trial court should have given the substance of the requested instructions [30 and 33],

This does not necessarily mean that in the new trial the instructions previously proposed must be given word-for-word. It does mean, however, that neither this court nor the trial court is free to simply reinstate the verdict. The “substance” of the requested instructions, plural, must be given if Employee asks the jury to award damages based on fear of cancer.

IV.

The judgment of the trial court is reversed. Costs on appeal are taxed to the appellee, Thurston Hensley. This case is remanded to the trial court, pursuant to applicable law, for a new trial on damages only.

      . The federal rule states that "waiver” may result from failure to correct misstatements about what happened in the proceedings "below.” Sup.Ct. Rule 15.2. The High Court did not hold that Employee had waived any issue.

        . We believe it is no coincidence the Supreme Court's opinion in Hensley II deletes certain material when it quotes number 30, and refers to number 33 in general terms.


author: RICHARD H. DINKINS, J„

text:
    James Gregory TIMMINS, Individually, and for the Benefit of all the Surviving Children of Janice Sue Timmins, Deceased v. Jerry LINDSEY, et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Aug. 7, 2009 Session.
    Oct. 28, 2009.
    Permission to Appeal Denied by Supreme Court March 15, 2010.

      David M. Pollard, Jr., Jacksboro, Tennessee, for the appellant, James Gregory Timmins, Individually, and for the benefit of all surviving children of Janice Sue Tim-mins, Deceased.
    Walter W. Bussart and Lee Bussart Bowles, Lewisburg, Tennessee, for the ap-pellees, Jerry Lindsey, Gary Lindsey, Joseph Lindsey, and Mary Ann Owens.
   OPINION

RICHARD H. DINKINS, J„

delivered the opinion of the court,

in which FRANK G. CLEMENT, JR., and ANDY D. BENNETT, JJ„ joined.

Plaintiff appeals the determination of the trial court in a declaratory judgment action that the plaintiff was not entitled to any portion of settlement proceeds derived from the personal injury action of the plaintiffs deceased grandmother by operation of TenmCode Ann. § 20-5-111 and because of the existence of a will that excluded the plaintiffs mother from the decedent’s estate. Finding error, we vacate the judgment of the trial court and remand for further proceedings.

I. Background

This appeal stems from the filing of a declaratory judgment action on December 15, 2008, by the plaintiff, individually as well as for the benefit of his siblings, seeking a declaration of “the parties’ respective rights, obligations and other legal relations as they pertain to settlement proceeds derived from a cause of action seeking damages in tort and [as amended] for wrongful death” of Lela Lindsey.

Lela Lindsey, the injured party, had five children, one of whom was Janice Sue Timmins, the plaintiffs mother. Janice Sue Timmins died approximately three years before Ms. Lindsey’s injury, which resulted from an overdose of medication given to her while she was a nursing home patient. In June 2006, following the injury, Ms. Lindsey’s four surviving children, the defendants in the instant suit, brought a personal injury action against Franklin Senior Living Partners, LLC d/b/a Beacon Pointe Assisted Living (“Beacon Pointe”) and Reeves-Sain Extended Care, LLC (“Reeves-Sain”) as next friends of Ms. Lindsey as well as individually. During the pendency of the personal injury action, Ms. Lindsey died and the defendants amended the complaint to allege her wrongful death. A jury subsequently awarded damages for Ms. Lindsey’s personal injuries, but found that those injuries were not the proximate cause of her death. The defendants, Beacon Pointe and Reeves-Sain subsequently mediated a confidential settlement.

Upon the filing of the declaratory judgment action, the trial court entered a temporary restraining order prohibiting the defendants, Beacon Pointe and Reeves-Sain from transferring, conveying, disbursing or otherwise disposing of the settlement proceeds from the personal injury action pending a conference call on December 17. The defendants filed an Answer on December 23, and a Rule 12.03, Tenn. R. Civ. P., Motion for Judgment on the Pleadings on December 31.

In an order entered on January 2, 2009, memorializing the December 17 conference call, the trial court ordered that the terms and obligations of the mediation settlement “should go forward as described in the mediation order with [Beacon Pointe and Reeves-Sain] paying the remaining balances of the settlement to Bussart Law Firm as scheduled. From those proceeds, Bussart Law Firm will escrow the sum of $94,000 in its trust account pending the resolution of the issues in this litigation.” Beacon Pointe and Reeves-Sain were dismissed as parties and the remaining issues in the declaratory judgment action were reserved for further hearing. Following a hearing on January 26, the trial court found:

[T]he Abatement and Survival of Action Statutes cited by the Plaintiff apply to all civil actions, but there is a distinction in the law between wrongful death actions and negligent actions as to the distribution of assets. The term “next of kin” properly denotes the person nearest of kindred to the deceased, that is, those who are the most nearly related by blood.
The Court further finds that the jury in this tort case specifically found that this was a negligence action and not a wrongful death action. Therefore, the proceeds of the suit pass by the Will of the deceased. The Will awards the residual to the four (4) children, i.e., Jerry Lindsey, Gary Lindsey, Joseph Lindsey, and Mary Ann Owens. The deceased’s child, Janice Sue Timmins, got the home and land associated therewith. She is not included in the proceeds of this negligent action.
The Court further finds that T.C.A. § 20-5-111 confirms the Legislature’s intent that the death of a beneficiary before the death of an injured parent works a loss of the cause of action.

The plaintiff appeals. He asserts the issues thusly:

1. Do the Abatement and Survival of Actions Statutes distinguish between injury resulting in death and personal injury actions in the manner in which damages are to be distributed to the decedent’s next of kin?
2. In the context of the Abatement and Survival of Actions Statutes, does the phrase “next of kin” refer to those nearest in blood according to the line of consanguinity or those entitled to take under statutory distribution of decedent’s estates?
3. Can personal injury proceeds be distributed according to the terms of an unproven will?

The defendants assert a fourth issue on appeal. They contend that the action should have been dismissed on the basis that the plaintiff failed to present a justiciable issue as he had not joined his father and two siblings, who, the defendants contend, are necessary parties.

II. Standard of Review

A motion for judgment on the pleadings may be filed “[a]fter the pleadings are closed but within such time as not to delay the trial.” Tenn. R. Civ. P. 12.03. When a motion for judgment on the pleadings is made by the defendant, it is in effect a motion to dismiss for failure to state a claim upon which relief can be granted. Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn.Ct.App.1998). Such a motion admits the truth of all relevant and material averments in the complaint but asserts that such facts cannot constitute a cause of action. Id. In considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court must accept as true “all well-pleaded facts and all reasonable inferences drawn therefrom” alleged by the party opposing the motion. Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn.2004); McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn.1991). Making such a determination is a question of law. Our review of a trial court’s determinations on issues of law is de novo, with no presumption of correctness. Frye v. Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 713 (Tenn.2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

III. Analysis

Justiciability

The defendants contend that “this case should have been dismissed below on the procedural issue of non-joinder of necessary parties and the failure to present a justiciable issue.” Specifically, the defendants argue that the plaintiffs two siblings as well as Janice Sue Timmins’ surviving husband, Harry Timmins, are necessary parties since the plaintiff was seeking a declaration affecting their rights as heirs of Janice Sue Timmins and that because they were not made parties to the action either as plaintiffs or defendants, the action should be dismissed.

Because of the nature of declaratory relief, the Declaratory Judgments Act, Tenn.Code Ann. § 29-14-101 et seq., “makes it incumbent that every person having an affected interest be given notice and an opportunity to be heard before declaratory relief may be granted.” The Huntsville Utility District of Scott County, Tenn. v. General Tmst Co., 839 S.W.2d 397, 403 (Tenn.App.1992). Tenn.Code Ann. § 29-14-107(a) requires:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.

Id. The statute, therefore, imposes stricter requirements than those imposed generally by the Tennessee Rules of Civil Procedure requiring the joinder of indispensable parties in all types of cases. See e.g., Tenn. R. Civ. P. 19.01 and 19.02. Consequently, non-joinder of necessary parties is fatal on the question of a justiciable issue, which, in an action for declaratory judgment, is a necessary condition of judicial relief. See Huntsville Utility, 839 S.W.2d at 399 (citing Wright v. Nashville Gas & Heating Co., 183 Tenn. 594, 598, 194 S.W.2d 459, 461 (1946)); Powers v. Vinsant, 165 Tenn. 390, 54 S.W.2d 938 (1932). This does not mean, however, that all persons who might be remotely affected need be joined. Shelby County Bd. of Comm’rs v. Shelby County Quarterly Court, 20 McCanless 470, 216 Tenn. 470, 392 S.W.2d 935 (1965).

Generally, the trial court has discretion to determine who should be made parties to proceedings for declaratory judgment as well as whether to grant or deny a declaratory judgment. Huntsville Utility, 839 S.W.2d at 399; see Powers, 54 S.W.2d at 938. Absent an abuse of that discretion, a declaration should not be disturbed on appeal. Huntsville Utility, 839 S.W.2d at 399 (citing Southern Ry. Co. v. Atlantic Coast Line R. Co., 209 Tenn. 177, 182, 352 S.W.2d 217, 219 (1961); Love v. Cave, 622 S.W.2d 52, 55 (Tenn.Ct.App.1981)).

At the hearing on the defendants’ motion, the trial court ruled that the action was “properly before the Court,” but explained that,

if the Court was going to be concerned that Mr. Timmins’ dec. [sic] action isn’t properly filed because of the parties, I would probably give or I would give Mr. Timmins or Mr. Pollard I guess an opportunity to amend his dec. [sic] action. ... I do believe it would be fatal if the Court had given Mr. Pollard the opportunity and he was incapable of doing so or refused to do so, but the Court believes that the more proper method, the more fair method would be to give him leave to amend his complaint.... [T]he Court is not going to dismiss the Declaratory Judgment action based upon the procedural non joinder of parties. The Court is going to continue to consider Mr. Bussart’s claim with regard to dismissing it on the substantive issues....

We do not find that the trial court abused its discretion in not dismissing the case.

Distribution of Settlement Proceeds

To varying degrees, both parties ask this Court to apply statutes governing wrongful death actions to the present facts. The plaintiff contends that, because the decedent’s personal injury action was amended after her death to allege the additional claim of wrongful death, the distribution of the proceeds from the action should pass in the same manner as proceeds from a wrongful death action, that is, to the decedent’s next of kin (which plaintiff claims to be) free from the claims of creditors. The defendants assert that the plaintiff is not entitled to any portion of the proceeds, contending that under Tenn. Code Ann. § 20-5-108 they are the only “next of kin” of Ms. Lindsey; they also contend that the decedent’s purported will excludes the plaintiffs mother and, thus, the plaintiff and his siblings as her heirs. We do not agree that the wrongful death statutes apply; rather, the settlement proceeds from the decedent’s personal injury action are part of the decedent’s estate and pass either by will, if there is one, or by the laws of intestate succession.

At common law, when a party to an action died while the case was pending the action abated. Tenn.Code Ann. § 20-5-101 abrogates the common law rule by providing that causes of action do not abate by the death of either party; this statute is a “survival statute” that permits the decedent’s cause of action to survive the death, so that the decedent, through his or her estate, recovers damages that would have been recovered by the decedent had he or she lived to the resolution of the case. See Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 597 (Tenn.1999) (citing Sea-Land Services, Inc. v. Gaudet, 414 U.S. 578, 575 n. 2, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974)). Because the survival statute abrogates the common law rule, the statutory method for preserving either an existing action or a vested cause of action not yet commenced must be strictly followed. See Preston v. Golde, 80 Tenn. 267, 12 Lea 267-275 (1883); McDonald v. Nashville, 114 Tenn. 540, 86 S.W. 317, 318 (1904).

Tennessee’s wrongful death statutes, Tenn.Code Ann. §§ 20-5-106 — 113, are also survival statutes; they are distinguished, however, from the other survival statutes because, in addition to preserving whatever cause of action was vested in the decedent at the time of death, they also create a new cause of action that compensates survivors of the decedent for their losses. See Jordan, 984 S.W.2d at 598. Tennessee courts have long held that the wrongful death statutes, because of their “hybrid” nature, must be construed with reference to one another. See Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn.Ct.App.1991). Courts have also held that in order for the wrongful death statutes to apply, the victim must have died as a result of his or her injuries. See e.g., Willis v. Heath, 21 Tenn.App. 179, 107 S.W.2d 228 (1937) (widow could not bring an action to recover for the negligent injury of her deceased husband where it appeared that such injuries were not a contributing cause of his death); Daniel v. East Tenn. Coal Co., 105 Tenn. 470, 58 S.W. 859, 860 (1900); Nashville v. Reese, 138 Tenn. 471, 197 S.W. 492 (1917).

The plaintiff asserts that he is entitled to share in a portion of the decedent’s personal injury action proceeds because Tenn.Code Ann. §§ 20-5-102, -106 and - 108, construed together, direct that the funds recovered pass to the next of kin free from the claims of creditors and that he qualifies as decedent’s next of kin for the purposes of distribution under Tenn. Code Ann. §§ 20-5-106 and -108. Plaintiffs reading of the statutes in conjunction would provide that any civil action commenced wherein a party dies should proceed as an action for wrongful death under Tenn.Code Ann. § 20-5-106 and that any proceeds should, therefore, be distributed in the same manner as proceeds from a wrongful death action. This interpretation, however, does not comport with the purpose and plain language of Tenn.Code Ann. § 20-5-102.

Tenn.Code Ann. § 20-5-102 directs the procedural steps to be followed when a party dies. The first phrase in § 20-5-102 addresses how an existing action is to be preserved upon the death of a party — by revival. The manner in which a pending action is to be revived is then provided for at Tenn.Code Ann. §§ 20-5-103 (causes surviving death of tort-feasor), -104 (revival by or against heirs) and -105 (revival by or against successor in interest). The remainder of § 20-5-102, beginning after the first semi-colon, provides the procedural steps to be taken when a person who has suffered some wrong dies before he or she was able to commence a cause of action. The statute provides that the right of action passes in the “same manner” as the right of action described in Tenn.Code Ann. § 20-5-106; in other words, the right of action goes to the same person as designated in the statute. Tenn.Code Ann. §§ 20-5-102-105 address only the procedural steps that must be taken to preserve a cause of action, whether already commenced or vested in the decedent but not yet commenced.

Both parties contend that the particular facts of this case make Tenn.Code Ann. § 20-5-108 applicable. Tenn.Code Ann. § 20-5-108 provides as follows:

(a) If the deceased had commenced an action before the deceased’s death, it shall proceed without necessity of revi-vor.
(b) The damages shall go to the surviving spouse and next of kin free from the claims of creditors.

Tenn. Code Ann. § 20-5-108. The plaintiff contends that, since Ms. Lindsey’s action commenced before her death, the damages received from the action go to her “next of kin” and that “next of kin” under the statute includes heirs who are not of equal degree. Defendants, on the other hand, contend that “next of kin” as used in the statute only includes those nearest in degree of kinship to the decedent. Again, both parties’ reliance on a wrongful death statute is misplaced.

It has long been held that Tenn.Code Ann. § 20-5-108, the language of which has not changed in any meaningful way since its enactment in 1858, only applies when two essential elements are met: (1) injury resulting in death and (2) the existence of the designated beneficiary, i.e., widow or next of kin. Daniel v. East Tenn. Coal Co., 105 Tenn. 470, 58 S.W. 859, 860 (1900) (if either of the essential elements is wanting, the statute does not authorize the prosecution of a deceased plaintiffs suit without revivor, nor, indeed, does it authorize the revivor of such a suit). Since the jury found that Ms. Lindsey’s injury did not result in her death, the wrongful death statutes do not apply. Because we have determined that Tenn.Code Ann. § 20-5-108 does not apply in this case, it is not necessary to address the parties’ competing interpretations of “next of kin” as used in the statute.

Plaintiff also contends that “[t]he Legislature did not intend to make proximate cause the determinative factor in the manner of distribution of funds recovered in an action commenced by a decedent” as such an interpretation would be unfair as well as “unnecessarily complicated.” We do not read the statutes as reflecting such intent and do not discern unfairness or unnecessary complications in the application of the directives as set forth in the statutes. The right of recovery for wrongful death is entirely a creation of statute and exists “in favor of the survivors of the victim for their loss occasioned by the death.” Jordan, supra., at 597 (citing Recovery for Wrongful Death at § 1:13; William T. Gamble, Actions for Wrongful Death in Tennessee, 4 Vand. L.Rev. 289, 290 (1950) (emphasis in original)). The wrongful death action is separate and distinct from an action to recover for personal injuries where, through happenstance, the plaintiff dies; the wrongful death action has statutory provisions that are unique to it. See, e.g., Tenn.Code Ann. §§ 20-5-106-113; Gipson v. Memphis Street Railway Co., 51 Tenn.App. 31, 364 S.W.2d 110 (1962). There is nothing inconsistent, complicated or unfair in providing that the nature and manner of recovery for an act which produces an injury is different based upon whether the victim dies from the injury. The Tennessee Rules of Civil Procedure allow for pleading alternative theories of recovery and it is appropriate for a claim for personal injuries to also include, in the appropriate circumstance, a claim for wrongful death. See Tenn. R. Civ. P. 8.01; Rolen v. Wood Presbyterian Home, Inc., 174 S.W.3d 158, 161-62 (Tenn.Ct.App.2005); see also Gipson, supra, (suggesting that a survival claim for personal injuries and a wrongful death claim could be brought in the same action so long as the personal injury action was properly revived).

Here, the jury found liability and awarded damages for personal injuries rather than wrongful death. The damages awarded did not include damages that a party would be entitled to recover if it were proven that the decedent died from the injuries sustained. Consequently, the manner of distribution provided for in the wrongful death statutes, specifically Tenn. Code Ann. §§ 20-5-106 and -108, is inapplicable to this case. Since the recovery was only for the decedent’s personal injuries, the proceeds of the settlement could not, as the plaintiff contends, be distributed as a recovery for wrongful death; instead, they are part of the decedent’s estate.

We also note that the trial court found that “T.C.A. § 20-5-111 confirms the Legislature’s intent that the death of a beneficiary before the death of an injured parent works a loss of the cause of action.” Consistent with our earlier holding that the wrongful death statutes only apply where an injury results in death, Tenn.Code Ann. § 20-5-111 does not apply to the facts here, since, as found by the jury, Ms. Lindsey did not die from her injuries. Moreover, Tenn.Code Ann. § 20-5-111 should be read in conjunction with § 20-5-112 and the purpose of the two statutes, read together, is to provide that causes of action vested or suits instituted to recover for wrongful death are not abated by the death of a beneficiary as enumerated in Tenn.Code Ann. § 20-5-106, i.e., the widow and next of kin. See Ridge v. Bright, 172 Tenn. 87, 110 S.W.2d 312, 313 (1937); Lones v. McFall, 152 Tenn. 239, 276 S.W. 866 (1925).

The defendants contend that the settlement proceeds should be distributed in accordance with a document that the defendants propound is the decedent’s will. This alleged will, however, has not been probated. Until a document is probated as a will in accordance with the applicable statutes it has no legal effect. See, e.g, Tenn.Code Ann. § 32-2-101; Boatman v. Morrison, 746 S.W.2d 706, 709 (Tenn.Ct.App.1987) (citing Weaver et al. v. Hughes, 26 Tenn.App. 436, 173 S.W.2d 159 (1943)); In re Estate of Boote, 198 S.W.3d 699, 711 (Tenn.Ct.App.2005); see also Zuccarello v. Erwin, 2 Tenn.App. 491 (1926) (a judicial determination of the character and validity of a written instrument as a testamentary devise is determined only upon offering the document for probate in the proper court). There being no estate opened and no will admitted to probate, the proceeds of the personal injury action pass in accordance with the laws on intestate succession. See Tenn.Code Ann. §§ 31-2-101 and 104.

Whether the proceeds of the personal injury action may be disbursed without the administration of the decedent’s estate or without obtaining a release from the Bureau of TennCare is not before this court; thus, we make no ruling in that regard. We do, however, recommend the trial court, the parties and counsel who is holding the proceeds in trust consider whether the estate must be opened and/or whether a release must be obtained from TennCare before the proceeds may be disbursed, See In Re: Estate of Martha M. Tanner, 295 S.W.3d 610 (Tenn.Ct.App.2009).

IV. Conclusion

Accordingly, the declaration of the trial court in that the proceeds of the personal injury action pass to the defendants under the purported will of Lela Lindsey and order directing that the proceeds be distributed to the defendants is vacated. The case is remanded for further proceedings in accordance with this opinion.

Costs of the appeal are divided equally between the parties.

      . The parties will be referred to by their designations in the trial court.

      . The evolution of the codification of the general survival statutes and the wrongful death statutes further clarifies this distinction. The survival statutes now codified as Tenn.Code Ann. §§ 20-5-101 — 105 and 114 — 120 were originally enacted in Tennessee's first official code as the Code of 1858 §§ 2845 — 2861 being derived in part from the Acts of 1785 when Tennessee was still part of North Carolina. While some of the survival statutes then in force have subsequently been repealed and a few new ones have been added, none of the wrongful death statutes share this legislative derivation. By contrast, the wrongful death statutes, Tenn.Code Ann. §§ 20-5-106 — 113, were originally enacted as the Code of 1858 §§ 2291 — 2293 being derived in part from the British Parliament’s enactment of Lord Campbell’s Act in 1846. The general survival statutes and the wrongful death statutes continued to be codified separately, see e.g., survival statutes codified as Shan.Code §§ 4568 — 4581 in 1896 and Code 1932 §§ 8693 — 8706; wrongful death statutes codified as Shan.Code §§ 4025 — 4029 and Code 1932 §§ 8236 — 8240, until the Tennessee Code Annotated was first enacted in 1955 codifying them in the same chapter. See e.g., survival statutes codified as T.C.A. (Orig. ed.) §§ 20-601 — 606 and 616 — 626; wrongful death statutes codified as T.C.A. (Orig. ed.) §§ 20-607 — 614.

      . Tenn.Code Ann. § 20-5-102 provides:
      No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the death of either party, but may be revived; nor shall any right of action arising hereafter based on the wrongful act or omission of another, except actions for wrongs affecting the character, be abated by the death of the party wronged; but the right of action shall pass in like manner as the right of action described in § 20-5-106.
      Tenn.Code Ann. § 20-5-102.

      . For example, Tenn.Code Ann. § 20-5-113 describes the damages recoverable in wrongful death. These damages consist of two classes: the first consisting of damages purely for the injury to the deceased and the second consisting of incidental damages suffered by the widow, children, or next of kin from the death. See Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 977 (1903); Jordan, 984 S.W.2d at 598.

      . Tenn.Code Ann. § 20-5-111 provides that "[d]eath of a primary beneficiary, after the death of one so injured and before suit is brought, shall not work a loss of cause of action, which shall be deemed to survive in behalf of those who, after the beneficiary, are the next of kin of the decedent.”


text:
    In re BENJAMIN M.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Sept. 15, 2009 Session.
    Oct. 30, 2009.
    Permission to Appeal Denied by Supreme Court March 15, 2010.
    Robert W. Rogers, Knoxville, Tennessee, for the appellant, Jessica M.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Douglas Earl Dimond, Senior Counsel; Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J.., joined.

This proceeding was initiated by the Tennessee Department of Children’s Services (“DCS”) by petition alleging that Benjamin M. (“the Child”) was born dependent and neglected within the meaning of TenmCode Ann. § 37-l-102(b) (2005 and Supp.2009) because his mother, Jessica M. (“the Mother”), abused drugs during her pregnancy. The same petition alleges that Mother’s drug abuse constitutes severe child abuse as defined in TenmCode Ann. § 37-1-102(21) (now renumbered (23) in 2009 Supp.) because it was done with the knowledge that it was causing great bodily harm to the Child based on the Mother’s previous experience in giving birth to another child harmed by her drug abuse during pregnancy. The Mother conceded that the Child was dependent and neglected and the juvenile referee entered an order accordingly. The order reserved the issue of whether the same conduct constituted severe child abuse. In a later hearing, the Mother challenged the allegations of severe child abuse, arguing that what she did during her pregnancy could not constitute abuse of a “child” because, according to her, the unborn baby was not a child. The case was initially tried before a referee who made lengthy specific findings of fact and concluded that the Child was the victim of severe child abuse. The parties stipulated to the referee’s specific findings of fact at trials before the juvenile court and the trial court, both of which found that the Mother’s conduct constituted severe child abuse. The Mother appeals. We affirm.

I.

As noted above, the facts are not in dispute. The findings of the referee, which, as previously noted, were stipulated to by the parties, are as follows:

From the witness stand, the [Mjother told the Court that prior to Benjamin’s birth she had given birth to a child, Ashton ... on July 31, 2004, and that immediately following Ashton’s birth, the child had to be treated for withdrawal symptoms brought about by her illegal use of methadone through the course of her pregnancy with Ashton. The [Mjother also stated that she used oxy-cotin obtained off the street without a legal prescription during her pregnancy with Ashton. Ashton and another sibling were eventually placed into the custody of her sister because of the [Mjother’s drug addiction.
In the days following the birth of Ash-ton, the [Mjother was referred to a methadone clinic for help with her addiction. After a short period of time the [Mjother was expelled from the methadone clinic because of her use of methamphetamine, a clear violation of the clinic’s rules.
The [Mjother further testified that on August 5, 2005, she discovered that she was pregnant with Benjamin after being taken to a hospital for treatment of a possible drug overdose. The [Mjother admitted that while at the hospital she tested positive for methamphetamine, cocaine, and valium. The [Mjother further informed the Court that at least one doctor told her to take methadone only as prescribed when pregnant and not to take or use any other illegal drugs or substances because of the risks of harm to her unborn child. Despite this knowledge, the [Mjother failed to heed the advice of her doctor and used methadone purchased off the street illegally in the time period between August 5, 2005 and January 26, 2006 when she came under the care of a methadone clinic once again. Additionally, the [M]other admitted to having no prenatal care after August 5, 2005 until a doctor’s visit in December of 2005 at which time she tested positive for opiates.
Shortly after Jessica ... reentering a methadone treatment program, Benjamin [M.] was born prematurely at thirty-five and 1/7 weeks on February 7, 2006 at the University of Tennessee Medical Center. Following his delivery, the [Cjhild began exhibiting distinct signs of opiate withdrawal that required medical treatment using phenobarbital and later, morphine. Because of his prematurity and his withdrawal symptoms, Benjamin was moved to the neonatal intensive care unit. Dr. Miriam Weinstein, a pediatric physiatrist with extensive experience in devising rehabilitation treatment programs for infants and children who have been harmed by in útero drug exposure, was called in for a consultation on the [Cjhild’s treatment on February 10, 2006. Dr. Weinstein’s initial impression was that the [Cjhild was suffering from sensory processing problems as evidenced by his hypersensitivity to touch because of his in útero exposure to methadone that would require extensive treatment to include speech, occupational, and, ... physical therapies. Additionally, Dr. Weinstein testified at trial that the various drugs the [Cjhild’s [Mjother used during her pregnancy with Benjamin unquestionably placed the [Cjhild at risk of other serious bodily injuries or death.
After Benjamin’s discharge from the hospital on February 23, 2006, Dr. Wein-stein last saw Benjamin at her office in July of 2006 at which time she observed that the [Cjhild was continuing to exhibit significant ill effects from his drug exposure in útero that would require additional therapies for some time to come and that without the additional treatments he would experience further developmental delays.
Additionally, on February 9, 2006, at the hospital where Benjamin was being treated, the [Mjother made telling admissions to Stephanie Elliott, the Child Protective Services investigator assigned to investigate Benjamin’s report of harm. The [Mjother told Ms. Elliott that she was a drug addict who had been using illegal drugs since she was fourteen years of age. The [Mjother went on to say that she used marijuana, opiates, and cocaine just prior to her being told that she was pregnant with Benjamin on August 5, 2005, and that she later used opiates for which she tested positive in December of 2005.
The [Mjother also told Ms. Elliott about her use of methadone and oxycotin during the course of her pregnancy with Ashton ... and that Ashton also had to be treated for severe withdrawal symptoms in much the same way as Benjamin.

Based upon his specific findings, the referee found, by clear and convincing evidence, that the Child was the victim of severe child abuse as defined in the statute because the Mother “did knowingly expose her child to a substantial risk of serious bodily injury or death by means of her illegal drug use during pregnancy which drug use did in fact cause serious bodily injury to her child requiring significant and extended medical treatment after the child’s birth.” The issue of severe child abuse was considered de novo by the juvenile court and later by the trial court based upon the above stipulated facts, and both courts affirmed the referee’s order in all respects.

II.

The Mother presents three variations of the dispositive issue which, restated by us, is whether the Mother’s drug abuse during pregnancy that resulted in the Child being born drug addicted and injured constitutes severe child abuse pursuant to Tenn.Code Ann. § 37-l-102(b)(21) (now subsection (23)). This issue, based as it is on stipulated facts, is purely one of law.

III.

A.

We review the trial court’s conclusions of law de novo with no presumption of correctness. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002). The application of a statute to facts that are not in dispute is a question of law subject to the aforesaid de novo review. Lawrence County Educ. Ass’n v. Lawrence County Bd. of Educ., 244 S.W.3d 302, 309 (Tenn.2007).

B.

The Mother’s argument, at its core, is that the definition of “child” found at Tenn.Code Ann. § 37-1-102(b)(4)(A) as “[a] person under eighteen (18) years of age” does not include a fetus; therefore, drug abuse during pregnancy cannot constitute abuse to the Child born after the drug abuse. DCS argues that the Mother’s argument misses the point because the fetus did not stay a fetus but became a child that sustained injury at the hand of the Mother. DCS argues that the law, as reflected in the statute and the cases, clearly establishes “that a parent may be held responsible for the prenatal conduct that exposes the child, once born, to great bodily harm.” We agree with DCS.

DCS refers us to cases that support the proposition that prenatal drug use can sustain a finding of parental conduct toward a later-born child egregious enough to justify a termination of parental rights. The first is In re M.J.J., No. M2004-02759-COA-R3-PT, 2005 WL 873305 (Tenn.Ct.App. M.S., filed April 14, 2005). M.J.J. was born with opiates and methamphetamine in his system. His mother tested positive for methamphetamine, and admitted ingesting hydrocodone, alcohol and other non-preseribed drugs during her pregnancy. DCS stepped in and took temporary custody of M.J.J., but tried to reunite him with his mother. The attempts were unsuccessful and the mother’s parental rights were terminated on numerous grounds, one of which was severe child abuse pursuant to Tenn.Code Ann. § 37-1-102, the same statute presently before us. On appeal, we analyzed the issue as follows:

In the present case, the juvenile court found that Mother had committed severe child abuse by using methamphetamine during her pregnancy with M. J. J. The court found that, by taking this illegal, controlled substance, Mother had exposed M.J.J. to a substantial risk of great bodily injury ... The record reflects that Mother also ingested hydro-codone, alcohol and other non-prescribed over-the-counter medications. M.J.J. was born with tremors as a result of the prenatal exposure to these illicit drugs Mother was taking during her pregnancy. Fortunately, it appears that M.J.J. has otherwise enjoyed a healthy childhood. However, the healthy development of the child in this case does not diminish the severity of the harm to which the child was exposed. Therefore, we conclude that the record clearly supports the trial court’s finding that Mother’s prenatal drug use constituted severe child abuse for purposes of parental rights termination.

2005 WL 873305 at *8.

DCS also relies upon In re C.T.S., 156 S.W.3d 18 (Tenn.Ct.App.2004). The mother’s rights had been terminated under Tenn.Code Ann. § 36-1-113(g), which allowed termination of parental rights for abandonment. Abandonment was defined to include an incarcerated parent who, pri- or to incarceration, “exhibits a wanton disregard for the welfare of the child.” Tenn. Code Ann. § 36-1-102(1)(2001). The term “child” was defined, and remains defined, in Tenn.Code Ann. § 36-1-102(13) (2001 and Supp.2009) identical to the definition of “child” in § 37-1-102(b)(4)(A). We affirmed the termination with the following statement:

Having reviewed the entire record in this case, including Mother’s testimony at trial, we affirm termination of Mother’s parental rights for abandonment as defined.... It is clear that Mother ingested crack cocaine during her pregnancy and immediately before the birth of C.T.S., knowing the effects it would have on her child. Mother’s knowledge of these effects, moreover, was more than theoretical as she previously had given birth to a child who also was born addicted to cocaine. Such conduct clearly exhibits a wanton disregard for the welfare of the child.

Id. at 25. We agree with DCS that C.T.S. and M.J.J. support a holding that severe child abuse can result from prenatal drug use.

Although M.J.J. did not discuss statutory construction, the plain statutory language supports the result. The plain language of an unambiguous statute is the starting and ending place for determining legislative intent. U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn.2009). The statutory scheme affording protection to juveniles, Tenn.Code Ann. §§ 37-1-101, et seq. (2006 and Supp.2009), unmistakably contemplates intervention based upon present conduct to prevent future injury, as well as consequences for past conduct that has caused a present injury or is likely to cause a future injury. One stated legislative purpose is to “[pjrovide for the care, protection, and wholesome moral, mental and physical development of children.... ” Id. § 37-1-101(a)(1). Development obviously spans time, from birth to majority. Likewise, the term “abuse” is defined to include a child who “is suffering from, has sustained, or may be in immediate danger of ... sustaining a wound, injury, disability or physical or mental condition caused by brutality, neglect or other actions or inactions of a parent_” Id. § 37-1-102(b)(1) (emphasis added). Similarly, the term “severe child abuse” includes:

(A) The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause great bodily harm or death....
(B) Specific brutality, abuse or neglect towards a child that in the opinion of qualified experts has caused or will reasonably be expected to produce severe psychosis, severe neurotic disorder, severe depression, severe developmental delay or retardation, or severe impairment of the child’s ability to function adequately in the child’s environment, and the knowing failure to protect a child from such conduct.

Tenn.Code Ann. § 37-1-102(21) (2005) (renumbered (23) in 2009 Supp.) (emphasis added). Obviously, the wording we have emphasized shows that a finding of abuse can be based on conduct that occurs at one time and injury that occurs at another.

The Mother’s argument that all the components of abuse must “exist concurrently” is a prime example of circular reasoning that offers nothing other than its own weight for support. It proceeds along the line that a fetus is not a child, therefore, harm to a child knowingly inflicted before birth cannot be harm to, or abuse of, a child, and, therefore, the child must be a child and not a fetus when the knowing act or failure to act happens. To accept this argument is to ignore the clear intent of the legislature as expressed in the language of the statute and tie the hands of anyone trying to “[p]rovide for the care, protection, and wholesome moral, mental and physical development of children.”

Mother does an admirable job of trying to shift the focus away from the Child to any subject matter that offers her more favorable law. For example, the Mother relies on Hamby v. McDaniel, 559 S.W.2d 774 (Tenn.1977) and the later statutory abrogation of Hamby’s holding by 1978 Tenn. Pub. Acts, ch. 742 § 1, now codified in Tenn.Code Ann. § 20-5-106(c)(2009). Hamby held that a wrongful death action could not be maintained for a fetus that was injured and later stillborn, although such an action would have been available had the baby been born alive. The General Assembly later, in § 20-5-106, defined “person” to include a fetus that was viable at the time of injury. DCS appropriately points out, however, that the Child in the present case would be covered by either the common law “born alive” rule followed in Hamby, or the later statutory definition. The common law rule was “predicated upon recognition of the legal right of a child to begin life unimpaired by physical or mental defects from prenatal injuries, which right matures upon live birth and therefore survives [even if the child later dies from the injuries].” Hamby, 559 S.W.2d at 776 (emphasis omitted). We believe the same reasoning applies with equal or greater force to provide a child with the right to begin life free from the impairment of drug addiction and other ill effects of prenatal drug abuse.

The Mother’s brief also mentions Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), for the proposition that an unborn fetus is not a person. Davis involved a fight between a divorced couple over disposition of eryo-genically-preserved human “preembryos,” or fertilized human eggs. Even though the court stopped short of recognizing that fertilized eggs were persons, it recognized the “special respect ... necessary to protect the welfare of potential offspring ... [and] ... obligations not to hurt or injure the offspring who might [later] be born.... ” Id. at 596 (quoting Journal of the American Fertility Society, Report of the Ethics Committee, at 35S (June 1990)). Thus, Davis does not help the Mother.

The Mother also argues that two criminal cases support her position that a fetus is not a child. She is correct that State v. Hudson, No. M2006-01051-CCA-R9-CO, 2007 WL 1836840 (Tenn.Crim.App. M.S., filed June 27, 2007), and Richards v. State, No. E2004-02326-CCA-R3-PC, 2005 WL 2138244 (Tenn.Crim.App. E.S., filed Sept. 2, 2005), both hold that conduct during pregnancy cannot support a finding of criminal child abuse, but she fails to convince us that the criminal cases control the outcome in the present case. Our criminal law is premised upon society’s accepted value that it is better for several guilty people to go free than to jail one innocent person. Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Proceedings in juvenile court under Title 37 are not criminal proceedings. Jackson v. Bomar, 215 Tenn. 9, 383 S.W.2d 41, 43 (1964). The focus of such proceedings is on the best interest of the affected child. Id.; See also In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002) (statutory grounds must exist and termination must be in best interest of the child). Accordingly, we de-dine to import the protections and definitions applicable to criminal child abuse into these civil proceedings. See, e.g., In re R.C.P., M2003-01143-COA-R3-PT, 2004 WL 1567122 at *7 (Tenn.Ct.App. M.S., filed July 13, 2004) (holding that “knowing” abuse in Title 37 is not the same as “knowing” abuse under Title 39 which deals with criminal abuse).

We believe it is also important that both criminal cases relied upon an Attorney General opinion that supports the proposition that once the child is born alive, it is entitled to the protections afforded by Tenn.Code Ann. § 37-1-101 et seq. See Attorney General Opinion, No. 02-136, 2002 WL 31912595 (Tenn.A.G. December 23, 2002). In Opinion 02-136, the Attorney General gave his answer to the following questions:

Does a situation where a pregnant woman tests positive for methamphetamine trigger the child abuse reporting statute codified at TenmCode Ann. § 37-1^403? Under the reporting statute, is the hospital and/or the attending physician required to report when a child is born with illegal drugs in his or her system?

Id. at *1. After answering the first question in the negative, the Opinion gave the following positive response to the second question:

It is the opinion of this office that once the child is born TenmCode Ann. § 37-1^403 is implicated and a hospital or physician must report a positive drug test on that infant. Although the mother’s ingestion of the illegal drugs takes place before the birth of the child, Tenn. Code Ann. § 37-l-403(a) requires that when a person has knowledge of “any child who is suffering from ... any wound, injury, disability, or physical or mental condition” caused or reasonably appearing to have been caused by brutality, abuse or neglect, that person must report the harm. Title 37 contains the following definition of abuse:
(1) “Abuse” exists when a person under the age of eighteen (18) is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition caused by brutality, neglect or other actions or in-actions of a parent, relative, guardian or caretaker.

Tenn.Code Ann. § 37-l-102(b)(l).

Further, we note that the statute uses the present tense — “is suffering” — in referring to the state of the child and uses the past tense — “has been caused by”— in referring to the actions that produced the child’s present suffering. Neither of these statutes requires that the harm be inflicted after birth.

Id,, at * 2. We believe Opinion 02-036 supports a holding that conduct during pregnancy can be the basis of a finding of abuse when that conduct causes harm to a child at or after birth.

The Mother also argues that recent unsuccessful attempts to add statutory terminology to include ingestion of drugs during pregnancy prove that the statute did not cover such conduct without the addition. We could just as easily speculate that the legislature rejected the addition as unnecessary in light of our holdings in M.J.J., C.T.S., and S.L.A. The legislature is presumed to have known about those cases at the time it acted. See State v. Powers, 101 S.W.3d 383, 394 (Tenn.2003). We do not find this failed legislation to be particularly helpful.

In conclusion, we hold that the statutory language defining severe child abuse clearly reflects an intent that actions before a child is born can constitute abuse to a child that is born injured by those actions. When a child is born alive but injured, the pre-birth timing of the actions is not dis-positive.

IV.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, Jessica M. This case is remanded, pursuant to applicable law, for enforcement of the trial court’s judgment and for collection of costs assessed below.

      . The holding of the third case relied upon by DCS, In re S.L.A., 223 S.W.3d 295, 300 (Tenn.Ct.App.2006), is consistent with C.T.S., but the facts are arguably distinguishable because the mother of S.L.A. continued her drug use after the baby's birth.