Claud "Tex" McIver listens to discussion about the jury's trip to the basement to see McIvers' Ford Expedition where the shooting took place during his trial, April 16, 2018, in Atlanta. McIver faces charges including murder in the September 2016 death of his wife, Diane McIver. (Bob Andres/Atlanta Journal-Constitution via AP, Pool)

The estate of Atlanta attorney Claud "Tex" McIver's murdered wife can sue McIver over her wrongful death, the Georgia Court of Appeals ruled Wednesday. 

The decision, written by Judge Sara Doyle, affirms a ruling by a DeKalb County state court judge who last year denied McIver's motion to dismiss the suit. The suit was brought on behalf of Diane McIver's estate by court-appointed administrator Mary Margaret Oliver.

While affirming the trial court's refusal to dismiss the estate's claims against Tex McIver—a former Fisher & Phillips partner who was convicted of shooting his wife to death last year—the appeals panel directed the trial judge to vacate the order and transfer the case to DeKalb Superior Court. McIver is currently serving a 30-year prison sentence for felony murder.

In doing so, Doyle cited cases holding it is "within the equitable powers of the superior court" to permit the pursuit of a wrongful death claim by a party other than a surviving spouse who is also the perpetrator.

The civil case against McIver by his dead wife's estate is the first time in Georgia that a wrongful death action has been filed by the victim's estate against the victim's spouse. Oliver sued McIver after the lawyer was charged with his wife's murder and removed as executor of her estate. Oliver was appointed by the probate court to replace him. Diane McIver has no surviving children or family.

The estate suit holds that Tex McIver is liable for his wife's wrongful death because he shot her from the backseat of their SUV as Dani Jo Carter, a family friend, was driving them home from a weekend at their Putnam County ranch. Carter is also named as a defendant in the wrongful death suit but didn't join McIver in appealing the trial court order. Lee Davis, Carter's attorney, has said the claim against Carter has no merit and that she did nothing wrong. 

Atlanta attorney Robin Frazer Clark, who represents Oliver and Diane McIver's estate, said Wednesday's appellate decision "falls in line with the state of Georgia's very strong policy that when someone is wrongfully killed in the state of Georgia, there will be a recovery against the wrongdoer."

Robin Frazer Clark. Photo: John Disney/Daily Report

"Had they not ruled like this, no one would have been able to recover for the death of Diane," she said.

And, she added, state policy holds that "wrongdoers are not going to be allowed to profit from their own wrongdoing."

The opinion "shows a strict construction of the statutes that apply, and that they are construed together," she explained. "I'm pretty comfortable they got it right." 

Clark said she intends to start trying the case in DeKalb County Superior Court where she predicted it would pick up right where it left off in state court. "The Court of Appeals makes it clear their opinion is the law of the case," she said. "The law of case is that Mary Margaret Oliver is a proper party." 

Tex McIver's attorney, James Scarbrough of Atlanta's Mabry & McClelland, contended during oral arguments in May that as the surviving spouse, McIver—not his wife's estate—has authority to bring a wrongful death claim for her death. Scarbrough couldn't be reached. 

"But this ignores the fact that McIver himself caused Diane's death, and although the law contemplates that there should be a right of recovery, it does not authorize a surviving spouse to benefit from his own wrong," Doyle wrote for an appeals panel that included Judges Clyde Reese and Todd Markle. 

"The question is not the plain language of the statute … but whether McIver should be deemed a surviving spouse so as to hold the right of action for the wrongful death," Doyle wrote. "And the answer to this question must be 'no.'" 

She noted in her opinion that state law allows an executor or an estate administrator to bring a wrongful death action if there is no one else entitled to do so. 

Doyle also said the legislature "did not intend that a murdering spouse financially benefit from the murder by possessing the ability to pursue the right of action for the victim's death against any other parties potentially liable for the homicide."