                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                October 24, 2012 Session

   LATONY BAUGH, ET AL. v. UNITED PARCEL SERVICE, INC., ET AL.

                  Appeal from the Circuit Court for Davidson County
                     No. 11C2364      Barbara N. Haynes, Judge


               No. M2012-00197-COA-R3-CV - Filed December 21, 2012


Shortly after the mother of four children was killed in an accident, her husband instituted an
action to recover damages for her death; the father of the children moved to intervene in the
action and for the court to hold a hearing on whether the husband had abandoned the mother,
thereby waiving his right as surviving spouse to participate in the wrongful death action. The
trial court did not hold a hearing; rather, it held that the husband was the proper party to
pursue the action, allowed the Guardian of the children to represent the interest of the
children in the action, and dismissed Father’s petition. The surviving spouse, Guardian and
tortfeasor subsequently petitioned the court for approval of a settlement of the wrongful
death claim; the court granted the petition. Father appeals, contending that the court erred
in failing to hold a hearing on the issue of whether the husband was estranged from the
mother, in approving the settlement, and in placing the settlement documents under seal. We
remand the case for a hearing on whether the husband waived his right as surviving spouse
to participate in the wrongful death action and reverse the court’s placement of the settlement
documents under seal; in all other respects the judgment of the trial court is affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
                    part and Affirmed in part; Case Remanded

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M. S., and F RANK G. C LEMENT, J R., J., joined.

James S. Higgins, Nashville, Tennessee, for the Appellants, James Denzmore.

Dana C. Holloway and David A. Chapman, Knoxville, Tennessee, for the Appellees, United
Parcel Service, Inc. and Jason Sanders.

H. Anthony Duncan, Nashville, Tennessee, for the Appellee, Latony Baugh.
David A. Lyons, Nashville, Tennessee, for the Appellee, Guardian and Administratrix,
Rachel Welty.

                                          OPINION

Factual and Procedural Background

       This appeal arises out of a suit to recover damages for the wrongful death of Roshanda
Baugh, mother of four children who were minors at the time of her death (“Mother”). On
June 17, 2011, Mother was riding her motorcycle when she was hit and killed by the driver
of a UPS vehicle (“Driver”); she died intestate. At the time of the accident, she was married
to Latony Baugh. James Denzmore (“Father”) is the father of the four children; he was never
married to Mother and lived in Illinois at the time of the accident.

       Shortly after Mother’s death, a proceeding was initiated in Davidson County Juvenile
Court by Father, along with Linda King and Marshella Thomas, to have the children declared
dependent and neglected. On June 20, 2011, Attorney Rachel Welty was appointed Guardian
Ad Litem for the children pursuant to Tenn. Code Ann. § 37-1-150. The dependency and
neglect petition was dismissed on August 15, with Father maintaining custody of the
children.

       Related to the instant proceeding but not at issue on appeal, the record reflects that on
June 27, 2011, the Davidson County Probate Court appointed Ms. Welty Administrator ad
litem of Mother’s estate and Guardian for the children “as it related to their interest in the
mother’s estate.” (Hereinafter, we refer to Ms. Welty as “Guardian.”)

        Mr. Baugh filed the action which is the subject of this appeal in Davidson County
Circuit Court on behalf of himself and the four children on June 20, 2011, asserting that he
was “the appropriate person to prosecute the action” for the wrongful death of Mother; he
filed an Amended Complaint on June 27. On June 23, Guardian filed a motion to intervene
in the wrongful death action; in the motion Guardian asserted, inter alia, the following:

       6. Latony D. Baugh has filed a wrongful death claim on behalf of the minor
       children, seeking to represent the interests of the minor children.
       7. The decedent was married to Latony D. Baugh although Roshanda Baugh
       told her friends and family that the two were divorced. Latony Baugh is not
       the father of the decedent’s four children. James Denzmore, the natural father
       of the four children is not involved in their lives. He last visited the children
       in December. He pays little or no child support. He has a problem with
       alcohol and drugs.

                                              -2-
       8. Roshanda Baugh and Latony D. Baugh were estranged. They have not
       lived together for two years. Roshanda Baugh was prepared to file divorce
       against Latony D. Baugh.
       9. Latony D. Baugh did not support the minor children. He did not act as a
       stepfather for the minor children, did not provide comfort and guidance for the
       minor children. He did not work during the marriage. He also abused alcohol
       and drugs, according to family members.
       ***1
       11. Upon information and belief, Latony Baugh has taken personal property
       belonging to the decedent, and is seeking to abscond with the childrens’ birth
       certificates and social security cards. He has contacted the decedent’s
       employer and is seeking to take her paycheck and retirement accounts. Upon
       information and belief he is applying for the children’s social security
       benefits. He has demanded the decedent’s identification, her vehicle, and a
       wide screen television and the children’s home.

        Mr. Baugh filed a response in opposition to the motion to intervene, inter alia,
asserting the right as the surviving spouse to prosecute the wrongful death action pursuant
to Tenn. Code Ann. § 20-5-106(a). Guardian filed a reply to Mr. Baugh’s response, in which
she asserted that Mr. Baugh and Mother were estranged at the time of the accident, that he
provided no support for the children, and that he had been misappropriating assets since her
death, including her last employment paycheck and retirement benefits. Attached to the reply
was the affidavit of Linda King, a friend of Mother for twenty years, in which she stated in
part pertinent to this appeal:

              10. Latony Baugh and Roshanda Baugh separated more than two years
       ago. Roshanda threw Latony out because he was having an affair with another
       woman and gave Roshanda a sexually transmitted disease. They have no
       children together. He has not supported Roshanda or the children during the
       marriage, and I don’t think he works. He has a criminal record and is currently
       under indictment for selling crack cocaine.
              11. After Roshanda Baugh died, Latony Baugh immediately went to
       claim the body. He wanted her truck, her purse, her credit and debit cards. He
       asked for the children’s television off the wall in the apartment. He went to
       Roshanda’s employer, Heritage Nursing Home in Brentwood, to try to get her
       last paycheck and her 401K.
              12. It would not be in the best interest of the children to allow either
       Latony Baugh or James Denzmore to represent their interests.

       1
           There was no paragraph 10 in the Motion

                                                 -3-
       Father filed a motion to intervene in the wrongful death action on July 1, alleging that
he had “parental preference” in representing the interest of the minor children; he filed an
Intervening Complaint that same day. In the motion, Father also asserted that, at the time of
the accident, Mr. Baugh and Mother had been estranged for two years; that, as father of the
children, he “is the presumed custodian and guardian” of them; and that, pursuant to Tenn.
R. Civ. P. 17.03, he was empowered to sue on behalf of the children. Mr. Baugh filed a
response opposing Father’s motion, asserting that Father lacked standing to bring the
wrongful death action.

       On August 9 Father filed a motion for the court to set an evidentiary hearing on the
question of who had standing to pursue the wrongful death claim; the motion was heard on
September 9. At the conclusion of the hearing the court stated:

               Let me tell you what the Court’s going to do. The Court’s going to
       direct that until such time as we have a hearing on [Mr. Baugh’s] standing,
       [Mr. Baugh] is the appropriate plaintiff in this lawsuit under the statute.

              Also, the Court’s going to rule that the guardian ad litem is the
       appropriate person at this time, until there’s more proof in front of the Court,
       to represent the children’s interests.

The court did not hold another hearing to determine whether Mr. Baugh in fact had standing
to pursue the wrongful death action. Rather, on September 21, 2011, the court entered an
Order in which it made findings of fact and conclusions of law as follows:

               1. Mr. Denzmore does not have standing to prosecute this action as he
       is not one of the affected persons listed in section 20-5-106(a) who may do so;
               2. Mr. Denzmore’s claim is hereby DISMISSED and his motion to
       intervene is stricken;
               3. Latony Baugh, as the surviving spouse of the deceased, is the proper
       party-plaintiff to pursue this wrongful-death action pursuant to section 20-5-
       106(a); and
               4. Ms. Rachel Welty, in her capacity as the duly appointed
       representative of the deceased’s minor childrens’ collective interests, shall be
       allowed to participate in the prosecution of this action until this Court rules
       otherwise.

        On October 20 Father filed motions styled “Motion of James Denzmore to Reconsider
or for Relief under Rule 59 or Rule 60 With Supporting Authorities To Vacate Order Entered
September 21, 2011" and “Motion for Rule 9 Interlocutory Appeal by Permission”; a hearing

                                              -4-
on both motions was set for November 4. On October 28 Father filed his affidavit in which
he states in pertinent part:

               3. I am currently caring for all of my children, both financially and
       emotionally. We live in East St. Louis, Illinois. I am the natural parent of the
       children and attend to their needs.
               4. Following the death of Ms. Baugh, I immediately began efforts to
       ensure my children were being cared for. Since I lived in another state, I went
       to the Davidson County Juvenile Court to inquire as to any documents that
       could be given to a family friend to have joint power to care for the children
       until I could reside with them permanently. I was informed by a Clerk at the
       Juvenile Court Clerk’s office that I needed to file a Petition for Dependency
       and/or Neglect. As such, I filed said petition.
               5. Following the filing of the petition, Ms. Rachel Welty was appointed
       Guardian Ad Litem.
               ***
               8. I understand that my children have an interest in a wrongful death
       claim involving their mother.
               9. I understand that I have no financial interest in the wrongful death
       case involving their mother and make no claim as to such.
               ***
               12. At the time of Ms. Baugh’s death, her husband, Mr. Latony Baugh,
       abandoned Ms. Baugh for no just cause he refused and/or neglected to provide
       for Ms. Baugh while having the ability to so provide. At the time of Ms.
       Baugh’s death Mr. Latony Baugh was residing with his girlfriend.
               13. It is my understanding that neither Ms. Welty nor Mr. Lyons has
       taken any action to prove that Mr. Baugh’s claim for wrongful death damages
       in invalid. This failure to act or inaction is directly against the interest of my
       children.

       UPS, Mr. Baugh, and Guardian pursued mediation and reached a settlement
agreement in the wrongful death action on November 18, 2011; they subsequently petitioned
the court for approval of the settlement and distribution of proceeds. The petition and order
approving the settlement are currently under seal.




                                              -5-
       The court held a hearing on Father’s motion for relief from the September 21 order
and for an interlocutory appeal on January 6, 2012; both motions were denied by order
entered February 10.2 Father filed a Notice of Appeal on January 19, 2012.

       On January 21, 2012, the oldest of the children, Jermeka Denzmore, turned eighteen
years old; she joins Father in this appeal as a co-appellant (hereinafter “Appellants”).
Appellants articulate the following issues on appeal:

                1. Did the trial court err by making a ruling as to who has standing to
        bring a wrongful death claim without considering any evidence or giving the
        parties an opportunity to have a hearing on the issue? If so, should this court
        make a ruling as to whether the estranged husband [Mr. Baugh] or the adult
        daughter has standing to pursue the claim or should the matter be remanded to
        the trial court for a hearing on the issue of standing?

              2. Is the approval of a minor settlement valid considering the settlement
        was entered into by the estranged husband of the decedent [Mr. Baugh] and
        without notice being given to the parent of the minor children [Father]?

               3. Should the minor settlement be placed under seal or should the
        parents and children of [Mother] be allowed to know the terms of the
        settlement?

                                              DISCUSSION

Denial of Evidentiary Hearing on Standing

       Appellants assert that the court erred in denying Father’s motion to hold a hearing on
the standing issue and in holding that Father lacked standing. The question of whether Mr.
Baugh was estranged from Mother is significant in light of the statutory scheme for
prosecuting wrongful death actions, as well as in the allocation of the proceeds of the action.

        Tenn. Code Ann. § 20-5-106(c), which became effective on May 30, 2011, states:

        (c)(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


        2
          Although the order entered February 10 does not give the basis of the court’s ruling, the transcript
of the January 6 hearing reflects that the court gave an explanation of its ruling from the bench. We have
considered the court’s comments in our disposition of this appeal.

                                                     -6-
       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)3 ] or otherwise willfully withdrawn for a period of two (2)
       years.
       (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.
       (3) In an action under this section, the child or next of kin shall serve the
       surviving spouse with process as provided in the rules of civil procedure or by
       constructive service as may otherwise be provided by law.

The only evidence in the record regarding this issue are Ms. King’s and Father’s affidavits.
Ms. King states that Mr. Baugh and Mother had been separated for more than two years, and
that Mr. Baugh had not supported Mother or her children during their marriage. Father states
that Mr. Baugh had abandoned Mother and “refused and/or neglected” to provide for her.
These statements provide evidence of abandonment within the meaning of the statute, thus
raising the presumption that Mr. Baugh abandoned Mother and, as a consequence, waived
his right as surviving spouse to prosecute the wrongful death action and share in the
proceeds.

       The 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. Counsel for Guardian’s statement at the September 9 hearing that
Guardian “doesn’t have personal knowledge of the length of the estrangement” is not a
substitute for a hearing on this matter. The Guardian was able to secure the affidavit of Ms.
King and we assume that Ms. King was available and willing to assist in providing
information relevant to this inquiry at a hearing called for that purpose. The resolution of this
question directly impacts the recovery of the children; it is in their best interest, as well as in
accord with the statute, for the court to determine whether Mr. Baugh waived his right to
prosecute the action and participate in the distribution of proceeds. Accordingly, we reverse
the judgment of the trial court denying Father’s motion for a hearing on this issue and remand
the case for hearing.




       3
           Tenn. Code Ann. § 36-4-101(a)(13) defines the ground of abandonment as:

       (13) 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;

                                                    -7-
Approval of the Settlement

        Appellants next contend that the court erred in approving the settlement because they
were not given notice of the settlement or its terms or of the fact that it was being presented
to the court for approval. We do not agree that, under the facts of this case, any failure to
notify Father of the fact of settlement and the application to have it approved by the court is
reversible error.

        We review a trial court’s approval of the settlement under the abuse of discretion
standard; the settlement will be upheld unless the trial court “applies an incorrect legal
standard, or reaches a decision that is against logic or reasoning[.]” Denver Area Meat
Cutters & Employers Pension Plan v. Clayton, 209 S.W.3d 584, 590 (Tenn. Ct. App. 2006)
(citing Cummings v. Patterson, 388 S.W.2d 157, 167 (Tenn. Ct. App. 1964)); Id. (quoting
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

        As an initial matter, we note that Father’s assertion of his parental rights is predicated
upon his representation that he is the natural father of the children. While Father’s parentage
of the children is not an issue in this appeal, there is no indication in this record that he has
legitimated the children or that he is entitled to the presumption of parentage at Tenn. Code
Ann. § 36-2-304(a)(4).4 Consequently, we find no error in the Probate Court’s and the
Circuit Court’s appointment of Guardian to represent the interest of the children in matters
related to the wrongful death action. See Gann v. Burton, 511 S.W.2d 244.5

      Having been duly appointed, Guardian was vested with the authority pursuant to Tenn.
R. Civ. P. Rule 17.03, to “sue or defend on behalf of” the minor children; she then


        4
            Tenn. Code Ann. § 36-2-304(a)(4) provides:

        (a) A man is rebuttably presumed to be the father of a child if:
        ***
        (4) While the child is under the age of majority, the man receives the child into the man's
        home and openly holds the child out as the man's natural child;

The record of the Juvenile Court proceeding is not before us and we do not know if and in what manner this
may have been addressed by that court.
        5
           “. . . Rule 17.03 requires the trial judge to evaluate the total situation surrounding the infant or
incompetent and then, if justice requires, a guardian ad litem must be appointed. However, said appointment
is discretionary and this Court will not overrule the trial judge's decision unless there is an abuse of the
judge's discretion.”

Gann v. Burton, 511 S.W.2d 244, 246-47 (Tenn. 1974).

                                                     -8-
participated in the mediation which led to the settlement and appeared before the court when
the settlement was approved. We have reviewed the petition to approve the settlement and
order approving it and, subject to the results of the hearing on remand and the concerns set
forth below, affirm the trial court’s approval of the settlement.6 In the event the court
determines that Mr. Baugh has waived his right to participate in the distribution of proceeds
of the action, the parties and the court are empowered to proceed accordingly.

Placing the Settlement Under Seal

       Appellants lastly contend that the court erred when it ordered that the settlement be
kept confidential and placed under seal.

        The rule that judicial proceedings, including judicial records, are presumptively open
is well established in the Constitution of Tennessee and case law. In In re NHC - Nashville
Fire Litig., 293 S.W.3d 547 (Tenn. Ct. App. 2008), this court discussed at length the
guarantee at Article I, Section 17 of the Tennessee Constitution that the “courts shall be
open”:

        Tennessee courts have long recognized that judicial proceedings are
        presumptively open:

                 The presumption of openness may be overcome only by an
                 overriding interest based on findings that closure is essential to
                 preserve higher values and is narrowly tailored to serve that
                 interest. The interest is to be articulated along with findings


        6
           We hold only that the court did not abuse its discretion in approving the terms of the settlement
agreement that was presented for approval; we do not sanction the manner in which this matter was
prosecuted and the failure to notify Father of the settlement and court hearing. The action was filed within
one week of Mother’s death and, as reflected in the Guardian’s response to Mr. Baugh’s reply to her motion
to intervene, caused the Guardian to have to expedite her filings in Probate Court and Circuit Court in order
to protect the interests of the children; by necessity, her ability to initially investigate matters relating to Mr.
Baugh’s relationship with Mother was limited. It is the duty of Guardian to “bring to the trial court’s
attention all facts bearing upon the fairness of the settlement,” and to “investigate into the facts of the
incident,” thus allowing the trial court to “determine whether the settlement was in the [minor children’s]
best interest[.]” Wright v. Wright, No. M2007-00378-COA-R3-CV, 2007 WL 4340871, at *3-4 (Tenn. Ct.
App. December 12, 2007) aff’d Wright ex rel. Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011). Further, we
discern no reason to fail to notify Father of the settlement and hearing, particularly in light of the fact that,
according to the record, he has custody of the children. The court was prevented from addressing any
concerns Father may have had regarding the terms of the settlement; in addition, the record does not reflect
that the immediate or specific needs of the children were taken into account in approving the manner in
which the proceeds were to be paid.

                                                        -9-
                specific enough that a reviewing court can determine whether
                the closure order was properly entered.

                State v. Drake, 701 S.W.2d 604, 607–08 (Tenn.1985) (quoting
                Press–Enter. Co. v. Superior Court, 464 U.S. 501, 506, 104
                S.Ct. 819, 78 L.Ed.2d 629 (1984)).

        The openness of judicial proceedings extends to judicial records. See Knoxville
        News–Sentinel v. Huskey, 982 S.W.2d 359, 362–63 (Tenn.Crim.App.1998).
        Indeed, the United States Supreme Court has observed that “the courts of this
        country recognize a general right to inspect and copy public records and
        documents, including judicial records and documents.” Nixon v. Warner
        Commc'ns, Inc., 435 U.S. 589, 98 S.Ct. 1306, 1316, 55 L.Ed.2d 570 (1978)
        (footnotes omitted).

In re NHC, 293 S.W.3d at 560. In Huskey, the court discussed the “qualified right of the
public, founded in common law and the First Amendment to the United States Constitution,
to attend judicial proceedings and to examine the documents generated in those proceedings.”
Huskey, 982 S.W.2d at 362 (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1966).7

        In weighing the presumption of openness against a protective order providing that
certain documents relating to a nursing home fire could be filed under seal, the court in In
re NHC noted that the reasons for sealing judicial records must be “compelling”, with the
burden for demonstrating the compelling reason placed on the party seeking to prevent public
access to the records. In re NHC, 293 S.W.3d at 567. Consistent with this policy, Rule 7.02
of the rules of the Twentieth Judicial District states: “[a]ll papers, documents and files shall
be available for public inspection except as specifically exempted by court order or statute.”
The rule requires that a motion be filed seeking an order of exemption, and that the motion
must “contain sufficient facts to overcome the presumption in favor of disclosure.”

       The record before us contains no motion to have the settlement documents sealed and
the court did not enter a separate order stating the reason for sealing the settlement; as a
consequence, we have no basis upon which to determine that the reason for sealing the
records was compelling. Under the record before us, the trial court abused its discretion in
ordering the documents sealed. Accordingly, we reverse the trial court’s action of placing



        7
          In a footnote, the Huskey court noted that Article I, Section 19 of the Tennessee Constitution,
which guarantees freedom of speech and press, “presumptively extends a similar qualified right to the
public.” Huskey, 982 S.W.2d at 362.

                                                  -10-
the settlement documents under seal, without prejudice to the filing of a motion in
compliance with the applicable law and rule.8

Conclusion

        For the foregoing reasons, the judgment is reversed in part and affirmed in part; the
case is remanded for a hearing in accordance with this opinion.




                                                        _________________________________
                                                        RICHARD H. DINKINS, JUDGE




       8
          Assuming there is a valid reason for sealing the documents from view of the general public, we
discern no reason why Father is prevented from seeing them.

                                                 -11-
