In re Arvin

1

IN RE CONSERVATORSHIP OF GREGORY BLAKE ARVIN

No. M2022-01808-COA-R3-CV

Court of Appeals of Tennessee, Nashville

September 18, 2023

Assigned on Briefs September 1, 2023

Appeal from the Chancery Court of Bedford County No. 34119 J. B Cox, Chancellor

This appeal arises from a conservatorship proceeding. The issues on appeal concern the assessment of the fees of the attorney ad litem in the amount of $1,060. The trial court assessed the fees against the petitioners and the respondent, jointly and severally. The petitioners appeal, contending that pursuant to Tennessee Code Annotated § 34-1-125, the court had no discretion but to assess the fees of the attorney ad litem against the respondent. The petitioners and the estate of the respondent also challenge the assessment of the fees against the respondent on other grounds. We have determined that the trial court was statutorily required to assess the fees of the attorney ad litem against the respondent and that it lacked the discretion to assess the fees against the petitioners. We have also determined that the petitioners have no standing to challenge the assessment of the fees against the respondent and that the issues raised by the estate of the respondent lack merit. Thus, we reverse the assessment of the fees of the attorney ad litem against the petitioners but affirm the assessment of the fees against the respondent.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court of Bedford County Reversed in Part; Affirmed in Part; and Remanded

Rhonda Saylor and Peter Trenchi, III, Shelbyville, Tennessee, pro se appellants.

Peter Trenchi, III, Shelbyville, Tennessee, for the appellant, the Estate of Gregory Blake Arvin.

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN and KRISTI M. DAVIS, JJ joined.

OPINION

FRANK G. CLEMENT JR., P.J., M.S.

FACTS AND PROCEDURAL BACKGROUND

On August 24, 2022, Rhonda Saylor and Peter Trenchi, III, ("Petitioners") filed a verified petition for emergency ex-parte appointment of conservator for the benefit of Gregory Blake Arvin ("Respondent"). Petitioners are the mother and stepfather of the Respondent.

In pertinent part, Petitioners alleged that the Respondent "suffers from mental and cognitive disabilities which limits his ability to make financial, health and maintenance decisions and is in need of the appointment of an emergency Conservator to manage his affairs until a permanent conservator can be appointed with the necessary Report of Physician and other filings." The Respondent was a residential patient at the Smoky Mountain Lodge at Pasadena Villa in Sevierville, Tennessee, when the petition was filed.^[1]

By order entered on August 24, 2022, the trial court ruled: "It appears that Respondent is in need of an emergency conservator pursuant to Tennessee Code Annotated § 34-1-132, and failure to act will likely result in substantial harm to the Respondent's health, safety, or welfare" and appointed Petitioners as emergency co-conservators pursuant to Tennessee Code Annotated § 34-1-132.

In the same order, the court appointed attorney Kristin B. Brown as attorney ad litem "to represent Respondent in the proceeding pursuant to Tennessee Code Annotated § 341-132" and attorney Trisha Henegar as guardian ad litem.^[2] Shortly thereafter, Jonathan Fagan was appointed as successor guardian ad litem due to Ms. Henegar having a conflict of interest.^[3]

Following "an appropriateness hearing" on August 30, 2022, the court ordered that "until such time as a medical Affidavit from Mr. Arvin's treating physician stating he is not in need of a conservatorship is filed with the Court, the Petitioners shall remain as emergency co-conservators[.]"

On September 8, 2022, the Respondent, by and through Ms. Brown as his attorney ad litem, filed a motion for "emergency status conference." In support of the motion, the Respondent asserted that:

Petitioners represented to the Court on August 30, 2022 that the "emergency" necessitating this conservatorship was the need for the Respondent to attend a medical appointment with Vanderbilt regarding his epilepsy. Petitioners have since canceled the appointment for no legitimate reason. Respondent would further show that despite having emergency authority over his medical care for two weeks, Petitioners have failed to produce an Affidavit from a treating physician stating a conservatorship is needed. Respondent believes that Pasadena Villa, his current inpatient facility, is ready to medically discharge Respondent but is waiting out of fear of legal repercussion from the Petitioners. Respondent would show this is not in his best medical interest. Respondent would further show that his civil and Constitutional rights are being interfered with for no legitimate purpose as there is no emergency that would necessitate an emergency conservatorship at this time.

The requested hearing was held on September 9, 2022. The order that followed reads as follows:

Present before the Court were the Attorney ad Litem for Mr. Arvin, Kristin B. Brown, in person, Respondent Blake Arvin, Guardian ad Litem Jonathan Fagan, and Petitioner Peter Trenchi, III, all by Zoom. Based on the arguments and presentations of counsel and the statements of the Petitioner and representative of Pasadena Villa, the Court finds that there is no longer an emergency regarding Mr. Arvin. The Court hereby ORDERS the emergency conservatorship dissolved and DISMISSED effective immediately.

Shortly thereafter, the attorney ad litem filed a motion for attorney fees, which was supported by an affidavit in which she represented that she had billed a total of $1,060.00. Petitioners filed a response to the motion for fees. They did not challenge the amount of the fee; however, they denied any responsibility for the attorney ad litem fees "since respondent is financially able to pay as he has been determined by this court to be independent and without any incapacity." They also relied on Tennessee Code Annotated § 34-1-125(b), which reads, in pertinent part, "The cost of the attorney ad litem shall be charged against the assets of the respondent." Additionally, Petitioners challenged the propriety of assessing any of the fees against the Respondent. Neither the guardian ad litem nor the Respondent opposed the attorney ad litem's motion for fees.

In the order that followed, the court stated:

1. That the attorney fees sought are reasonable and necessary. Attorney Kristin B. Brown is awarded a judgment for fees in the amount of $1,060.00.

2. That while Petitioner is correct in his argument that the black letter of the statute calls for payment of attorney fees to come from the estate of the Respondent in conservatorship actions, in the present case, the Petitioners were unsuccessful in their Petition and, thus, the Court exercises its discretion and orders the Petitioners, Peter Trenchi and Rhonda Saylor, and Respondent Gregory Blake Arvin are all jointly and severally liable for the judgment awarded to attorney Kristin B. Brown for her fees in the amount of $1,060.00 for which execution may lie if necessary.

IT IS SO ORDERED. Petitioners subsequently filed a timely notice of appeal.

ISSUES

Petitioners raise three issue on appeal; however, we have determined that the only issue Petitioners raise for which they have standing is whether the trial court "abused his discretion by holding Petitioners liable for [attorney ad litem] fees in direct contradiction of T.C.A. § 34-1-125."^[4] The other two issues raised by Petitioners challenge the propriety of assessing any of the fees against the Respondent. For reasons we explain later in this opinion, Petitioners lack standing to raise these two issues because they are not aggrieved by the award of fees against the Respondent. See Koontz v. Epperson Elec. Co., 643 S.W.2d 333, 335 (Tenn. Ct. App. 1982).

Petitioner, Rhonda Saylor, acting on behalf of the estate of her son, Gregory Blake Arvin, the Respondent, raises two issues, which are the same as the second and third issue raised by Petitioners.^[5] One is whether the attorney ad litem violated Rules of Professional Conduct by filing a motion for her fees, which the trial court assessed against the Respondent and Petitioners, jointly and severally. The other issue is whether the judgment against the Respondent is void without adequate service of process on the Respondent.

The attorney ad litem did not make an appearance nor file a brief; thus, she did not raise any issues.

ANALYSIS

I. TENNESSEE CODE ANNOTATED § 34-1-125

Petitioners contend that the trial court "abused his discretion by holding Petitioners liable for [attorney ad litem] fees in direct contradiction of T.C.A. § 34-1-125."

"[I]ssues of statutory construction are questions of law." Ki v. State, 78 S.W.3d 876, 879 (Tenn. 2002) (quoting Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000)). We review such issues de novo, "according no presumption of correctness to the conclusions reached by the trial court." Id. (citations omitted).

Tennessee Code Annotated § 34-1-125 states in pertinent part:

(a) . . . The attorney ad litem shall be an advocate for the respondent in resisting the requested relief.

(b) The cost of the attorney ad litem shall be charged against the assets of the respondent.

"When construing statutes, we are required to ascertain and effectuate the legislative intent and purpose of the statutes." Ki, 78 S.W.3d at 879. We should "assume that the legislature used each word in the statute purposely and that the use of [each] word[] conveyed some intent." Id. (quoting State v Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997)) (alteration in original). "Legislative intent must be derived from the plain and...