Latony Baugh v. United Parcel Service, Inc. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 10, 2014 Session
LATONY BAUGH, ET AL. V. UNITED PARCEL SERVICE, INC., ET AL.
Appeal from the Circuit Court for Davidson County
No. 11C2364 Thomas W. Brothers, Judge
No. M2014-00353-COA-R3-CV - Filed March 31, 2015
In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5-
106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years
to have waived his or her right to institute an action or collect proceeds under that section.
We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies
only to “willful withdrawal.”
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A NDY D. B ENNETT, J., delivered the opinion of the court, in which R ICHARD H. D INKINS and
W. N EAL M CB RAYER, JJ., joined.
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.
OPINION
F ACTUAL AND P ROCEDURAL B ACKGROUND
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.,
2
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).1
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.” 2 (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 assets
received from the wrongful death action.
After this ruling, Jermeka Denzmore filed a motion to complete the Court of Appeals
mandate and to amend the order of settlement and a motion for attorney fees and costs. She
requested that the trial court award her and her siblings the entire amount of the settlement
proceeds in light of Mr. Baugh’s lack of standing. In an order entered on January 15, 2014,
1
By order of the court in September 2013, Jermeka Denzmore replaced Ms. Welty as her siblings’
guardian.
2
We note that there is no transcript of this hearing in the record. The trial court’s order incorporates
findings of fact and conclusions of law contained in an audio/video recording attached as an exhibit to its
order. The recordings attached to the order are not official court recordings as contemplated under the
procedure described in Sup. Ct. R. 26. Moreover, the court’s order incorporates only the findings of fact and
conclusions of law, not the entire recording. We do not, therefore, consider these recordings to constitute
a transcript of the entire hearing for purposes of the appellate record.
3
the court granted in part and denied in part Ms. Denzmore’s motion. The court approved the
settlement agreement “in its gross terms.” Mr. Baugh was ordered to prepare “a full
accounting of all expenditures of settlement monies within thirty (30) days of the entry of this
Order” and to pay all proceeds into the court. The court further held that the attorney fees
taken by counsel for Mr. Baugh and the GAL were approved.
On February 14, 2014, Mr. Baugh filed an accounting of all settlement funds received
by him; he reported that he had no remaining funds as he had spent all of the money. He
spent part of the money on a home located at 1720 Autumn Ridge Drive in Nashville. Ms.
Denzmore filed a motion to transfer title to the real property from Mr. Baugh to the four
children, but the trial court denied the motion. Ms. Denzmore filed this appeal on behalf of
herself and her siblings.
ISSUES ON A PPEAL
Jermeka Denzmore initiated this appeal. Mr. Baugh is an appellee; UPS and Jason
Sanders are also appellees.3 Ms. Denzmore argues that the trial court erred (1) in awarding
attorney fees to Mr. Baugh, (2) in awarding attorney fees to Ms. Welty, and (3) in denying
Ms. Denzmore’s request to transfer title to real property owned by Mr. Baugh to her and her
siblings. It should be noted that Ms. Denzmore does not challenge the amount of the
settlement reached by Mr. Baugh, the GAL, and their attorneys and approved by the trial
court. Mr. Baugh argues that the trial court erred in finding that he lacked standing. He
further asserts that, even if he is determined to have abandoned the decedent, the trial court
did not err in approving fees for his attorney and in determining that it could not transfer title
to the real property in the manner sought by Ms. Denzmore. As to UPS and Mr. Sanders, the
main issues are whether the notice of appeal was timely filed and whether they should have
been required to participate in this appeal.
A NALYSIS
Standing
The first issue we must consider is whether the trial court erred in finding that Mr.
Baugh lacked standing to recover in the wrongful death suit because he had waived his rights
as the surviving spouse under Tenn. Code Ann. § 20-5-106(c)(1). As will be discussed more
fully below, we must determine whether the two-year time requirement included in Tenn.
Code Ann. § 20-5-106(c)(1) applies to abandonment.
3
Appellant Rachel Welty gave notice of her intent to waive the filing of her appellant’s brief.
4
Standing is a judicial doctrine used to determine whether a party is “entitled to have
a court decide the merits of a dispute.” Am. Civil Liberties Union of Tenn. v. Darnell, 195
S.W.3d 612, 619 (Tenn. 2006). The doctrine requires a court to decide whether a party has
a sufficiently personal stake in the outcome of the controversy to warrant the exercise of the
court’s power on its behalf. Browning-Ferris Indus. of Tenn., Inc. v. City of Oak Ridge, 644
S.W.2d 400, 402 (Tenn. Ct. App. 1982) (quoting Village of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 260-61 (1977)). The doctrine of standing precludes courts
from adjudicating “‘an action at the instance of one whose rights have not been invaded or
infringed.’” Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001) (quoting 59
AM.J UR.2 D. Parties § 30 (1987)). More specifically, this doctrine “restricts ‘[t]he exercise of
judicial power . . . to litigants who can show ‘injury in fact’ resulting from the action which
they seek to have the court adjudicate.’” In re Estate of Farmer, No. M2013-02506-COA-
R3-CV, 2014 WL 5308226, at *12 (Tenn. Ct. App. Oct. 15, 2014) (quoting Valley Forge
Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464,
473 (1982)).
The construction of a statute is a question of law. Lee v. Franklin Special Sch. Dist.
Bd. of Educ., 237 S.W.3d 322, 332 (Tenn. Ct. App. 2007). The standard of review is de
novo. Id. When construing a statute, a court must “ascertain and give effect to the
legislature’s intent.” Home Builders Ass’n of Middle Tenn. v. Williamson Cnty., 304 S.W.3d
812, 817 (Tenn. 2010). Ordinarily, we derive this legislative intent “‘from the natural and
ordinary meaning of the statutory language within the context of the entire statute without
any forced or subtle construction that would extend or limit the statute’s meaning.’” Id.
(quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). Where “the language of a
statute is ambiguous in that it is subject to varied interpretations producing contrary results,
Walker [v. Sunrise Pontiac-GMC Truck, Inc.,] 249 S.W.3d [301,] 309 [(Tenn. 2008)], we
construe the statute’s meaning by examining ‘the broader statutory scheme, the history of the
legislation, or other sources.’” Id. (quoting State v. Sherman, 266 S.W.3d 395, 401 (Tenn.
2008)).
The present subsection (c) of Tenn. Code Ann. § 20-5-106 was enacted in 2011 and
has not been interpreted previously by the courts. 2011 T ENN. P UB. A CTS ch. 366, § 1. The
relevant provisions state as follows:
(1) Notwithstanding any other law to the contrary, the right to institute and the
right to collect any proceeds from a wrongful death action granted by this
section to a surviving spouse shall be waived, if the children or next of kin
establish the surviving spouse has abandoned the deceased spouse as described
in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2)
years.
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(2) If the period of two (2) years has passed since the time of abandonment or
willful withdrawal, then there is created a rebuttable presumption that the
surviving spouse abandoned the deceased spouse for purposes of this section.
Tenn. Code Ann. § 20-5-106(c) (emphasis added). In its findings of fact (quoted in the
“Factual and Procedural Background” section above), the trial court determined that,
although two years had not passed since the time of abandonment so as to create a rebuttable
presumption, Ms. Denzmore had proven by a preponderance of the evidence that Mr. Baugh
had abandoned the decedent. The question before this Court is whether the two-year time
requirement included in Tenn. Code Ann. § 20-5-106(c)(1) applies to abandonment.
In its findings of fact and conclusions of law, the trial court specifically determined
that the two-year period of time included in subsection (c)(1) did not apply to abandonment.
The trial court relied upon the “plain grammatical construction of the sentence,” and stated
that if a comma had been placed after the term “willfully withdrawn,” “that would have made
the modifier apply to the entire phrase, the list that preceded it. As it is now, that modifier
only applies to ‘willfully withdrawn.’”
The grammatical construction referenced by the trial court is a rule of statutory
construction known as the “last antecedent rule.” This rule provides that “‘a limiting clause
or phrase . . . should ordinarily be read as modifying only the noun or phrase that it
immediately follows.’” In re Estate of Tanner, 295 S.W.3d 610, 624 (Tenn. 2009) (quoting
United States v. Hayes, 555 U.S. 415, 425 (2009)); see United States v. Martin, 438 F.3d
621, 631 (6th Cir. 2006); 2A Norman J. Singer & Shambie Singer, S UTHERLAND S TATUTORY
C ONSTRUCTION § 47.33 (7th ed. 2014). While this rule can be overcome by “other indicia
of meaning,” In re Estate of Tanner, 295 S.W.3d at 624, it is applicable “where no contrary
intention appears.” S UTHERLAND § 47.33, at 494. Moreover, “[a] qualifying phrase
separated from antecedents by a comma is evidence that the qualifier is supposed to apply
to all the antecedents instead of only to the immediately preceding one.” Id. at 499-500.
Applying the last antecedent rule to the phrase at issue in this case—for a period of
two (2) years—found at the end of Tenn. Code Ann. § 20-5-106(c)(1), we would conclude
that the legislature intended for the phrase to modify only “willfully withdrawn” because
there is no comma before the phrase. This intent is confirmed by other parts of Tenn. Code
Ann. § 20-4-106(c). Subsection (c)(1) incorporates the definition of abandonment from
Tenn. Code Ann. § 36-4-101(a)(13), which states: “The husband or wife has abandoned the
spouse or turned the spouse out of doors for no just cause, and has refused or neglected to
provide for the spouse while having the ability to so provide.” This definition contains no
time limitation.
6
The “last antecedent rule” is not, however, a hard and fast rule of statutory
interpretation. As our Supreme Court has observed, “canons of construction, though helpful,
should always be tested against the other interpretive tools at a court’s disposal.” In re Estate
of Tanner, 295 S.W.3d at 624 n.13. Our first and best interpretive tool is the natural and
ordinary meaning of the words used by the legislature. Mills v. Fulmarque, Inc., 360 S.W.3d
362, 368 (Tenn. 2012). The insertion of the words “or otherwise” before “willfully” in the
portion of Tenn. Code Ann. § 20-5-106(c)(1) reading “abandoned the deceased spouse as
described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2)
years” indicates that abandonment is a type of willful withdrawal. Under this view of Tenn.
Code Ann. § 20-5-106(c)(1), the two-year period would apply to both.4
We find both of these alternative interpretations plausible. The statutory wording
must be viewed in the context of the entire statute. Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300, 308 (Tenn. 2012). Fortunately, there is another subsection at play here.
Tennessee Code Annotated section 20-5-106(c)(2) carries the importance of the two-year
period forward and applies it to both abandonment and willful withdrawal by stating that if
a period of two years has elapsed “since the time of abandonment or willful withdrawal, then
there is created a rebuttable presumption that the surviving spouse abandoned the deceased
spouse for purposes of this section.” This portion of the statute provides that, if two years
have passed since the alleged abandonment, the children or next of kin have the advantage
of a rebuttable presumption in proving that the surviving spouse abandoned the deceased
spouse, thus implying that there is a different threshold for less than two years.5 That
threshold would be the usual preponderance of the evidence standard.
When viewing the language in question in the context of the entire statute, we must
conclude that the “last antecedent rule” should be applied to Tenn. Code Ann. § 20-5-
106(c)(1). Subsection (c)(2) would be superfluous if, to constitute abandonment under
subsection (c)(1), the children or next of kin have to establish that the surviving spouse has
abandoned the deceased spouse for a period of two years. In order to give meaning to both
subsections, we must interpret subsection (c)(1) in accordance with the last antecedent
rule—i.e., the two-year period applies only to willful withdrawal. We, therefore, agree with
the ruling of the trial court that the two-year period of time included in subsection (c)(1) did
not apply to abandonment and that Mr. Baugh lacked standing to bring the wrongful death
4
Another canon of statutory construction is that we are to presume that every word used in a statute
has meaning and serves a purpose. Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 694 (Tenn. 2011).
5
“That which is implied in a statute is as much a part of it as that which is expressed.” City of
Humboldt v. Morris, 579 S.W.2d 860, 863 (Tenn. Ct. App. 1978).
7
suit.
Attorney fees
The terms of the settlement agreement6 entered on December 29, 2011 provide that
attorney fees in the amount of thirty-three and one-third percent of the total settlement
amount were awarded. Pursuant to a fee sharing agreement between the attorney for Mr.
Baugh and the attorney for the GAL, these two attorneys would evenly split the thirty-three
and one-third attorney fees between them. Ms. Denzmore asserts that neither the attorney
for Mr. Baugh nor the attorney for the GAL should be awarded any attorney fees.
After the trial court held that Mr. Baugh did not having standing, Ms. Denzmore filed
a motion to complete the Court of Appeals mandate and to amend the order of settlement.
The trial court denied in part and granted in part Ms. Denzmore’s motion. The court
approved the settlement agreement entered on December 29, 2011 “in its gross terms.” The
court decreed that, “The attorney’s fees that were taken by Mr. Baugh’s counsel and counsel
for the Guardian/Administrator ad litem as part of the settlement agreement are approved.”
Ms. Denzmore asserts that counsel for Mr. Baugh should not recover fees under the
contingency fee contract because his client was ultimately determined to lack standing to
recover in the wrongful death suit. See Alexander v. Inman, 903 S.W.2d 686, 696 (Tenn. Ct.
App. 1995) (discussing general principles regarding contingent fee arrangements). She
further relies upon the general rule that attorneys must look to their clients for their fees. See
Kline v. Eyrich, 69 S.W.3d 197, 204 (Tenn. 2002).
We have concluded, however, that this case falls within an exception to the general
rule, the common fund doctrine, which “arises when the attorney ‘has succeeded in securing,
augmenting, or preserving property or a fund of money in which other people are entitled to
share in common.’” Id. (quoting Travelers Ins. Co. v. Williams, 541 S.W.2d 587, 589-90
(Tenn. 1976)). In Kline, our Supreme Court applied the common fund doctrine to the
proceeds of a wrongful death case. Id. at 205. The Court reasoned as follows:
The United States Supreme Court has recognized that application of the
[common fund] doctrine is warranted only when the number of beneficiaries
is relatively small and their identities are easily discovered; when the benefits
accruing to each beneficiary can be determined with some accuracy; and when
the attorneys’ fees can “be shifted with some exactitude to those benefiting.”
...
6
The settlement agreement and related documents are under seal.
8
We conclude that application of the common fund doctrine in the wrongful
death context will rarely be inappropriate. Undeniably, a party’s successful
efforts in bringing a wrongful death suit result in creating a fund in which
multiple parties may claim an ownership interest. These beneficiaries stand
on equal footing as claimants against the fund, with no interest in the proceeds
being subordinate or superior to another. Moreover, the beneficiaries of
wrongful death proceeds are usually small in number, and their identities are
virtually always known. Finally, a court can accurately determine the
respective shares of the fund accruing to each beneficiary, and it can spread a
proportionate share of attorneys’ fees to each beneficiary “with some
exactitude.” Accordingly, we hold that a trial court may, in its discretion,
apply the common fund doctrine in a successful wrongful death action, thereby
requiring the passive beneficiaries to pay a reasonable attorneys’ fee to the
party bringing the action.
Id. at 205-06 (footnote omited). Thus, the court in Kline found, the trial court acted within
its discretion in requiring the passive beneficiaries of a wrongful death action brought by the
surviving spouse to pay a reasonable attorney fee to the attorney of the surviving spouse who
procured the settlement. Id. at 210.
In the present case, of course, there is a new wrinkle in that Mr. Baugh was
subsequently determined to be ineligible to receive any of the settlement proceeds.
Nevertheless, the same reasoning justifies the award of attorney fees to Mr. Baugh’s attorney
in this case. At the hearing on Ms. Denzmore’s motion to complete the Court of Appeals
mandate, the trial court stated:
[T]he attorney fees that were taken out in this matter are approved. The
children would have incurred attorneys fees regardless. And the fact that Mr.
Baugh’s attorney and the children’s attorney – or actually the guardian ad
litem’s attorney who was representing Ms. Welty representing the children,
they agreed to this. And the fact they agreed to split the one-third contingency
fee on the entire amount between themselves as opposed to each taking a third
out of the respective proceeds to Mr. Baugh or the children would have still
worked out to be the same. It’s a third. And I think that’s a fair amount. I see
nothing – there’s no indication of any kind of fraud or misconduct on the part
of the attorneys in these matters. We’ve got a situation that, unfortunately,
there just wasn’t the hearing on standing that should have taken place early on
where it could have been dealt with better.
So the funds that were paid over to Mr. Durham’s firm are not required to be
9
paid back over. They’re allowed to retain those. The funds that were paid to
Mr. Lyons, they’re not ordered to be paid over. They’re not to be refunded.
Those were earned. They were approved. Also, Ms. Welty agreed to it. She
was acting on behalf of the children. She approved this; therefore, the children
are bound by her approval. She agreed to these attorneys’ fees.
The trial court approved the overall amount of the settlement; that determination has
not been appealed. As the trial court pointed out, the children would have had to pay
attorney fees to procure a settlement. The court approved the one-third contingency fee,
shared between the attorneys for Mr. Baugh and the GAL, as reasonable. Under the common
fund doctrine, we find no error in the trial court’s determination.
Ms. Denzmore also asserts that the attorney fees for counsel for Ms. Welty, the GAL,
were improper because they were based upon the recovery of Latony Baugh. The reasoning
above, concerning the common fund doctrine, applies with equal force to the attorney fees
awarded to counsel for the GAL.
Ms. Denzmore makes a separate argument that the amount of the fee awarded to
counsel for Ms. Welty was unreasonable “in light of the time and effort [the lawsuit] required
of him.” We find that Ms. Denzmore lacks standing to challenge the division of the one-third
total contingency fee between counsel for Mr. Baugh and counsel for the GAL. The two
attorneys agreed between themselves to split the total one-third contingency fee.7 Ms.
Denzmore has “no dog in this fight.” Even if she were to prevail in her argument, the result
would only be a greater amount of recovery for the attorney for Mr. Baugh. We decline to
address this argument.
Title to house
7
Of course, any such agreement, to be ethical, must comply with the requirements of Rule 1.5(e) of
the Tennessee Rules of Professional Conduct, which provides:
A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer
assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
TENN . SUP . CT . R. 8, RPC 1.5(e).
10
Mr. Baugh filed an accounting with the trial court on February 14, 2014 of all
settlement proceeds he had received. He had no funds remaining to deposit with the court.
The only remaining asset was the home he had purchased, which was located on Autumn
Ridge Drive in Nashville and was titled to Mr. Baugh and Raushanah Hasan as joint tenants
with common law right of survivorship.
Ms. Denzmore, on behalf of herself and her siblings, filed a motion to transfer title
to the real property asking the trial court to transfer title to this real property, purchased
entirely with the proceeds of the wrongful death settlement, into the names of the Denzmore
children. The trial court denied this motion, citing the following reasons:
The Court has previously found no intentional wrongdoing or fraud by
Plaintiff, Latony Baugh. The Court cannot see any relief it can grant at this
time. The Defendant’s Motion is Denied. Conversion plainly does not apply.
Plaintiff, Latony Baugh did not convert something that belonged to someone
else against their interest. The Plaintiff already had the funds that he used to
purchase the real estate and now the children have a claim for the funds that
Plaintiff used to purchase real estate. . . . This does not preclude Jermeka
Denzmore from any independent action that may be filed at a later date.
We conclude that the trial court acted properly. Regrettably, the wrongful death
action was settled before the proper parties to the wrongful death action were identified. This
wrongful death action, however, is not the proper vehicle for obtaining the relief to which
Ms. Denzmore and her siblings are entitled from Mr. Baugh. The court in the wrongful death
case did not have the jurisdiction to divest Mr. Baugh of his title as a joint owner (with Ms.
Hasan) with right of survivorship in the house; furthermore, the other owner is not even a
party to this case. Ms. Denzmore cites no authority giving the court such power, and we
know of none. Unfortunately, in this case, the Denzmore children are going to have to file
another lawsuit to disgorge Mr. Baugh of the settlement proceeds that he wrongfully
received. They will have to seek equitable relief in a separate action.
As to UPS and Jason Sanders, this Court finds that these parties have previously been
dismissed from this case and should not be required to participate in further proceedings.
11
C ONCLUSION
The judgment of the trial court is affirmed. Costs of appeal are assessed against the
appellants, and execution may issue if necessary.
_________________________
ANDY D. BENNETT, JUDGE
12