LATONY BAUGH, ET AL.
UNITED PARCEL SERVICE, INC., ET AL.
Session December 10, 2014.
Appeal from the Circuit Court for Davidson County No. 11C2364 Thomas W. Brothers, Judge.
James S. Higgins and Richard D. Piliponis, Nashville, Tennessee, for the appellants, Jermeka D., et al.
Blair Durham, Nashville, Tennessee, for the appellee, Latony Baugh.
C. Christopher Brown and David A. Chapman, Nashville, Tennessee, for the appellees, United Parcel Service, Inc. and Jason Sanders.
Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
ANDY D. BENNETT, JUDGE.
Factual and Procedural Background
This is the second appeal in this wrongful death action. See Baugh v. United Parcel Serv., Inc., No. M2012-00197-COA-R3-CV, 2012 WL 6697384 (Tenn. Ct. App. Dec. 21, 2012). Roshonda Baugh was killed in an accident on June 17, 2011; she was riding her motorcycle when she was hit by a United Parcel Service ("UPS") truck. At the time of the accident, Ms. Baugh had four minor children and was married to Latony Baugh. The father of the four children was James Denzmore, who had never been married to Ms. Baugh and lived in Illinois at the time of the accident.
On June 20, 2011, Latony Baugh filed the instant action in circuit court for wrongful death on behalf of himself and the four children against UPS and Jason Sanders, the driver of the UPS truck; he filed an amended complaint on June 27, 2011. Mr. Baugh claimed to have standing as the surviving spouse pursuant to Tenn. Code Ann. § 20-5-106(a). On June 23, 2011, attorney Rachel Welty, court-appointed guardian ad litem ("GAL") for the four minor children, moved to intervene to represent the children's best interest. On July 1, 2011, Mr. Denzmore moved to intervene on behalf of the minor children, claiming a superior right to that of Mr. Baugh and Ms. Welty to represent the interests of the minor children. Mr. Denzmore also filed an intervening complaint on behalf of the minor children. At a hearing on July 8, 2011, the trial court named Ms. Welty guardian and next friend for the children at that time, but ordered that Mr. Denzmore "be permitted to present proof at a subsequent evidentiary hearing why it would be in the children's best interest for him to represent the children in this case."
Mr. Denzmore filed a motion to set a hearing on standing, which was opposed by Ms. Welty and Mr. Baugh. After hearing arguments on September 9, 2011, the court entered an order on September 21, 2011, denying Mr. Denzmore's motion to set. The court stated that Mr. Denzmore did not have standing because he was "not one of the affected persons listed in section 20-5-106(a) . . . ." The court further ruled that Mr. Baugh, as the surviving spouse, was the proper party to bring the wrongful death action and that Ms. Welty would be allowed to participate as representative of the minor children's interests until the court decided otherwise.
Mr. Denzmore filed a motion to reconsider or for relief under Rule 59 or Rule 60 of the Tennessee Rules of Civil Procedure. He also filed a motion for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. While those motions were pending, however, Mr. Baugh, the GAL, and their attorneys reached a settlement of the wrongful death suit with UPS and Mr. Sanders, and the trial court approved the settlement. On February 10, 2012, the trial court entered an order denying Mr. Denzmore's Rule 9 motion on the ground that it was moot, and denying his motion to alter or amend. Mr. Denzmore and the oldest of the four children, Jermeka Denzmore ("Ms. Denzmore"), who had reached the age of eighteen, appealed.
In the first appeal, this Court determined that the circuit court "should have held a hearing on the question of Mr. Baugh's possible estrangement and allowed Father, as well as others, the opportunity to participate and present evidence on this issue." Baugh v. U.P.S., 2012 6697384, at *5. We remanded for a hearing on "whether the husband waived his right as surviving spouse to participate in the wrongful death action." Id. at *1.
On remand, the trial court held a hearing on October 14, 2013 to determine who had standing to pursue a wrongful death action pursuant to Tenn. Code Ann. § 20-5-106(c).After hearing the proof, in an order entered on October 31, 2013, "the Court made certain findings of fact and conclusions of law all of which are contained in the Audio/Video record which is attached hereto as Exhibit "A" and incorporated herein by reference." (We will set forth the trial court's findings of facts and conclusions of law in detail as pertinent to our analysis of the issues on appeal.) The court determined that:
Ms. Denzmore had failed to prove Plaintiff Latony Baugh was absent through abandonment or willful withdrawal for two (2) years pursuant to Tenn. Code Ann. § 20-5-106(c)(2), and as a result, a rebuttable presumption that the surviving spouse had abandoned the deceased spouse was not raised. This Court further found that Ms. Denzmore had failed to prove by a preponderance of the evidence that Plaintiff Latony Baugh had willfully withdrawn from Ms. Baugh for a period of two years. However, this Court did find that Ms. Denzmore had proven by a preponderance of the evidence that Plaintiff Latony Baugh had abandoned Ms. Baugh. Therefore, the Court held that Plaintiff Latony Baugh did not have standing to institute and/or collect any proceeds from the wrongful death action pursuant to Tenn. Code Ann. § 20-5-106(c).
In accordance with these findings and conclusions, the trial court ordered that Mr. Baugh was prohibited from transferring, disposing of, or otherwise encumbering the proceeds or ...