The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 29, 2001 Session
THOMAS CLINTON WYNNS, III. v. RAE ANN CUMMINGS
A Direct Appeal from the Chancery Court for Shelby County
No. 99-0082-1 The Honorable Walter Evans, Chancellor
No. W2000-02156-COA-R3-CV - Filed December 28, 2001
This case involves a dispute between Thomas Clinton Wynns, III (“Thomas”) and Rae Ann
Cummings (“Rae Ann”), the son and granddaughter of Mrs. Leola Wynns (“Leola”), concerning
Leola’s mental capacity and ability to manage her own affairs. Plaintiff, Thomas, holder of a power
of attorney from his mother, filed a complaint against the defendant, Rae Ann, seeking to have Rae
Ann turn over to him all of Leola’s assets in possession of Rae Ann. Rae Ann filed an answer to the
complaint and a petition for appointment of a conservator for Leola and for an injunction against
Thomas from removing any more of her assets. After a nonjury trial, the trial court found that the
court had jurisdiction to appoint a conservator for Leola; that the facts warranted the appointment
of a conservator; that the power of attorney held by Thomas and a will executed by Leola in 1998
were void, and that the quit claim deed executed on April 22, 1999, in favor of Thomas, was also
void. Thomas appeals. We affirm in part, vacate in part, and remand.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
Vacated in Part, and Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which and HOLLY
KIRBYLILLARD , J., joined. ALAN E. HIGHERS , J. (not participating)
Harvey Gipson, Memphis, For Appellant, Thomas Clinton Wynns, III
Bruce A. Ralston, Memphis, For Appellee, Rae Ann Cummings
OPINION
The plaintiff-appellant, Mr. Thomas Clinton Wynns, III (“Thomas”), filed his complaint on
February 1, 1999, against defendant-appellee, Ms. Rae Ann Cummings (“Rae Ann”)1, requesting that
the trial court order Rae Ann and/or her agent, Mr. Charles Sevier, Attorney at Law, to deliver all
investment accounts, banking accounts, last will and testament and other personal papers of Ms.
Leola P. Wynns (“Leola”) to her son, Thomas. The complaint alleges that on or about October 28,
1998, Leola executed a durable general power of attorney naming Thomas as her true and lawful
attorney in fact. This document dated October 28, 1998, was made an exhibit to the complaint and
provides Leola’s address as 4228 Trudy Street, Memphis, Shelby County, Tennessee. The complaint
also alleges that Leola executed a revocation of durable power of attorney revoking any power of
attorney appointing Rae Ann as her attorney in fact. This document, dated October 28, 1998, was
also made an exhibit to the complaint and provides that Leola is “a resident of Memphis, Shelby
County, Tennessee.”
The complaint further alleges that Thomas has requested that Rae Ann, pursuant to his
durable power of attorney, turn over all bank accounts, investments, stocks and bonds, and the last
will and testament of Leola and that Rae Ann refuses to deliver the last will and testament and the
stock certificates belonging to Leola. The complaint also alleges that Rae Ann has turned over the
requested documents to Mr. Sevier, her attorney, and that he will not deliver those documents to
Thomas unless or until a complaint is filed and a court order has been entered requiring him to either
turn the documents over or place the documents with the clerk and master of the Chancery Court of
Shelby County, Tennessee, pending further orders of the court.
On April 26, 1999, Rae Ann filed her answer to the complaint and a petition for the
appointment of a conservator and for an injunction against further removal of assets. The answer
admits that Rae Ann has refused to turn over certain stocks, bonds, and other investment information
to Thomas, but states that this refusal is in the best interest of Leola. The answer further admits that
the stocks, bonds, and investment information has been turned over to Mr. Sevier and that he has
refused to turn over those documents to Thomas without a court order in an effort to protect Leola.
The petition for the appointment of a conservator for Leola and the injunction against further
removal of assets provides that because of Leola’s advanced age and her mental and physical
condition, she is unable to manage her own affairs. The petition states that Leola is suffering from
senile dementia, progressive blindness due to her advanced age, and possibly a variety of other
ailments. The petition states that Rae Ann is thirty-one years old, lives in Memphis, Shelby County,
Tennessee and that she is the natural granddaughter of Leola. In the petition, Rae Ann seeks to be
appointed conservator of Leola and points out that Rae Ann has lived with Leola most of her life and
has been Leola’s primary caretaker since the death of Leola’s husband in June of 1995.
The petition further explains that since December 1985, Leola has resided in her home with
Rae Ann and that on October 2, 1998, Thomas took Leola from her home in Memphis, Tennessee
to his home in West Point, Mississippi. According to the petition, it was Rae Ann’s understanding
1
To av oid con fusion, w e will refer to the p arties by their first nam es.
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that Leola was going to Mississippi only for a short period of time and that sometime later, Rae Ann
learned that Thomas had caused Leola to execute a power of attorney in his favor and that Thomas
had closed the bank accounts and had taken the money and was seeking Leola’s other assets.
Rae Ann requested in the petition that proper notice be issued to Leola; that a guardian ad
litem be appointed; that the court appoint Rae Ann as conservator of the person and estate of Leola;
that the court approve the property management plan and authorize Rae Ann to expend such funds
from Leola’s assets and income as may be necessary for the care of Leola; that the court transfer to
the conservator the rights of Leola to manage her financial and medical affairs; that an accounting
of Leola’s assets be taken including the assets that Thomas has taken under his control; that Thomas
be made to account for the whereabouts of any of Leola’s assets which have been diminished or
altered in any way; that a temporary injunction be issued prohibiting Thomas from taking control
of Leola’s assets being held in an account at Regions Bank or making any further effort to take
control of any of Leola’s other assets; and that all of Leola’s assets, in whatever form, presently in
the control of Thomas be turned over to the clerk of court or to the guardian ad litem or to another
responsible and disinterested third party, pending further orders of the court.
Thomas contested the petition and the hearing on temporary injunction was held May 5,
1999, and by order entered June 4, 1999, the trial court ordered that each party be enjoined from
disposing of or otherwise altering or transferring the present form of any of the assets belonging to
Leola which are presently in their respective possession, except as otherwise directed in the order.
The injunction ordered by the court applied to both the parties as well as their agents and attorneys.
The trial court ordered that each party deliver to the opposing party a comprehensive list of all assets
of Leola which are presently in his or her possession; that Sabrina D. Ball be appointed to act as the
guardian ad litem for Leola; that each party shall provide Ms. Ball with a list of relevant witnesses;
that Ms. Ball shall provide an accounting of all the assets of Leola which are in the possession of
each of the parties; that Leola shall undergo a mental and physical examination by two competent
physicians or other such health care professionals and that any resulting reports or previously
available reports with regard to Leola’s mental and/or physical condition shall be promptly
exchanged between the parties and provided to the guardian ad litem; and that the $6,000.00 in cash
belonging to Leola that is currently being held in the escrow account of Sevier Law Firm, P.C.,
attorney for Rae Ann, shall be used for the payment of any medical expenses, investigative expenses
and/or guardian ad litem fees and expenses incurred in this matter.
After a nonjury trial, the trial court filed on July 26, 2000 its Findings of Fact and
Conclusions of Law. The court found, inter alia, that Leola was legally domiciled in Shelby County,
Tennessee on October 2, 1998 and was mentally incapable of voluntarily changing her domicile to
West Point, Mississippi on that date; that she was legally incompetent on October 28, 1998, that the
power of attorney and last will and testament executed on that date were void; that on April 22,
1999, she was mentally incompetent and the quit-claim deed executed in favor of Thomas C. Wynns,
III for the 4228 Trudy Street, Memphis, Tennessee property was void; and that Leola is presently
mentally and physically incapable of handling her affairs.
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A “Final Order Appointing Conservators, and Resolving All Other Pending Matters” was
entered on July 31, 2000. The order appointed the guardian ad litem, Sabrina D. Ball, as conservator
of Leola Wynns’s estate and appointed Thomas’s wife, Emily Wynns, as conservator of the person
of Leola Wynns.2 The final order set forth directions to the conservator for handling the estate and
authorized the disposal of certain property and payment of expenses. The order further provides:
7. Both parties, and their respective attorneys and/or agents, shall
immediately turn over any of the Ward’s assets which may be in their
respective possession and/or control to the Conservator of the estate.
The Defendant shall turn over to the Conservator the heart-shaped
pendent belonging to the Ward. The Defendant shall also turn over
all of the stocks, bonds, remaining cash, and other items which were
deposited with her attorney, Charles Sevier, prior to the
commencement of this action. This includes the Last Will and
Testament of Leola P. Wynns, dated June 29, 1995, which the
Conservator may elect to place into a safe deposit box, or to deposit
with the Clerk of this Court. The Plaintiff shall turn over all cash,
certificates of deposit, and other bank accounts which primarily hold
the assets of the Ward, together with any bank statements and
canceled checks on NBC account # 4744181 dated after June 9, 2000,
so that the Conservator may establish a proper basis for her future
accounting. The Plaintiff shall also turn over any and all information
regarding the Ward’s stock, Ford retirement account, Social Security
payments, and any other income-producing asset, so that those
payments may be re-directed as the Conservator chooses. Any
furniture or appliances which belong to the Ward and are presently
being used for her health, comfort or safety shall remain in the
possession of the Conservator of her person.
* * *
9. The Plaintiff shall reimburse $9,517.00 to the estate of Leola
Wynns, according to a payment plan to be determined by the
conservator.
10. The quit-claim deed executed on April 22, 1999, which
purportedly transfers ownership of the house and property at 4228
Trudy, Memphis, Tennessee, bearing Shelby County Parcel I.D.
Number 09004200018, and registered with the Shelby County
Register under Instrument Number JH-3148, is hereby declared to be
null and void. The Defendant or Sabrina Ball may register this Order
2
Subse quen tly, Thom as was n amed as the co nservator over th e person of Leo la Wy nns.
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with the office of the Shelby County Register, and with any other
such official repository of records, giving notice to any person to
whom it may concern that the quit-claim deed under Shelby County
Register Instrument Number JH-3148 may be disregarded in all
respects, and that said document creates no impairment or
impediment on any real or personal property which may be owned by
Leola P. Wynns.
The order also awards fees for the guardian ad litem in the amount of $5,000.00 and for the
attorney representing the petitioner, Rae Ann, in the amount of $6,500.00. The original petition by
Thomas was dismissed with prejudice.
Thomas has appealed and presents four issues for review, which we have rephrased as
follows:
1. Whether the trial court erred in finding that it had jurisdiction to
appoint a conservator for Leola?
2. Whether the trial court has jurisdiction to declare a Last will and
testament void prior to the death of testatrix?
3. Whether the evidence preponderates against the finding of the trial
court that Leola was mentally incompetent on October 2, 1998, when
she went to the State of Mississippi and on October 28, 1998, when
she executed a power of attorney, revocation of a power of attorney,
and a Last will and testament?
4. Whether the trial court erred in allowing the guardian ad litem to
file a report containing hearsay, in making a recommendation to the
court, testifying on issues of mental competency, and allowing the
guardian ad litem to receive a fee?
The appellee has also filed issues for review which we have rephrased as follows:
1. Whether the trial court erred by failing to enforce its orders
concerning use of the ward’s assets for the parties’ own purposes?
2. Whether the trial court erred in appointing Thomas as conservator
over the person of Leola because of his physical condition?
3. Whether the trial court erred by applying similar standards of
conduct to both parties in regard to the personal use of Leola ’s assets
when the plaintiff, Thomas, was acting under an assigned power of
attorney and defendant, Rae Ann, was not?
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4. Whether the trial court erred in awarding only the amount of
$6,500.00 as attorney’s fees to Rae Ann’s attorney?
5. Whether the trial court erred in its award of a limited amount of
discretionary costs?
6. Whether the trial court erred by ordering the costs to be paid out
of the estate?
7. Whether the trial court erred in admitting into evidence the
affidavit of Harmon Robinson?
8. Whether the trial court erred in admitting the testimony of Dr.
Ron Powell when Dr. Powell is not licensed in Tennessee?
Our review of this case is governed by T.R.A.P. 13(d), which provides that review of
findings of fact by the trial court shall be de novo upon the record of the trial court, accompanied by
a presumption of correctness of the findings, unless the evidence preponderates otherwise. T.R.A.P.
13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
We will now consider appellant’s issues. Issues 1 and 3 will be considered together:
1. Whether the trial court erred in finding that it had jurisdiction to
appoint a conservator for Leola?
3. Whether the evidence preponderates against the finding of the trial
court that Leola was mentally incompetent on October 2, 1998?
As previously noted, Thomas, the attorney in fact, filed a lawsuit to obtain Leola’s assets held
by the defendant, Rae Ann. Rae Ann, in turn, filed a petition seeking an appointment of conservator
for Leola contending that she is a resident of Shelby County, Tennessee. The parties concede that
the court would have no jurisdiction to appoint a conservator for Leola if she is not a resident of
Shelby County. See T.C.A. § 34-3-101 (b) (2001)3.
Thomas asserts that Leola had changed her residence and domicile to West Point, Mississippi
and, therefore, is not subject to a conservatorship proceeding in Shelby County, Tennessee. On the
other hand, Rae Ann asserts that Leola’s mental condition was such that she could not make an
effective decision to transfer her residence and domicile to the State of Mississippi. See In Re:
Conservatorship of Clayton, 914 S.W.2d 84 (Tenn. Ct. App. 1995). There was extensive testimony
from both lay and medical witnesses concerning Leola’s mental competency. The trial court found
3
34-3-101. Action for ap pointmen t of conservator - W here broug ht. . . .(b) An action for the appointment
of a conservator shall be brought in the county of residence of the alleged disabled person.
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that she did not have the mental competency to change her residence and domicile from Memphis,
Tennessee to West Point, Mississippi in October of 1998.
As a preliminary matter, we note that everyone is presumed to be sane until the contrary is
made to appear by satisfactory proof, and the burden of proof is on the party who avers insanity. See
Roberts v. Roberts, 827 S.W.2d 788 (Tenn. Ct. App. 1991). Thus, the burden is on the defendant,
Rae Ann, to prove that Leola was mentally incompetent when she went to Mississippi and, thus,
unable to make a decision to change her domicile and further that she was mentally incompetent
when she appointed her son, Thomas, as her attorney in fact. The record reflects that Leola’s
brother, Dalton Ellis Crawford, testified that she was able to take care of herself when she moved
to Mississippi and that she told him that she was happy where she was and just wanted to stay home
there.
The deposition of Dr. Ron Powell, her treating physician in Mississippi, was taken on
August 25, 1999. He testified that he first saw Leola on October 9, 1998 shortly after she came to
Mississippi, and he continually treated her on several occasions from that date through August of
1999 for various medical problems. He testified that on June 11, 1999, Leola was brought to his
office in order for him to be in a position to make a statement about her mental competency. He
stated that she was accompanied by her son, Thomas, and that Dr. Powell discussed with Leola
where she wanted to live, and she stated she wanted to live in West Point, and that if she got to a
point where she could not take care of her finances, then she wanted her son, Thomas, to do that for
her. According to Dr. Powell, Leola stated to him that she was mentally competent enough to make
her own decisions and it was his opinion that she was able to take care of herself.
Dr. Louis Rosa testified by deposition on May 22, 2000, and it apparently was conceded by
the parties that at this time, May 22, 2001, Leola was unable to manage her own affairs. Dr. Rosa
testified that he first saw Leola on January 6, 2000 after she had a fall. A brain scan had revealed
a tumor, which turned out to be benign. He testified about the slow growth of the tumor and how
it could affect mental capacity in an elderly person. He was furnished copies of her previous medical
records, except the records from Dr. Powell, and he stated it was possible that she could have been
lucid when she signed the power of attorney and the revocation of an earlier power of attorney. He
stated, considering Dr. Krause’s record of July of 1995, that she just looked like she “continued to
go down hill. I don’t know at what point she just went over the edge.” He further testified that
based on Dr. Mau’s records, it appears that she had “an organic condition as dementia.” He stated
that in all probability he did not believe that she was competent in 1998 and in March or April of
1999. Lay testimony from friends of Rae Ann indicated that possibly six months prior to the time
Leola went to Mississippi she was forgetful, and this was confirmed by the testimony of Rae Ann.
From our review of the record, considering the presumption of sanity, we find that the
evidence preponderates against the trial court’s finding that in October 1998 Leola was mentally
incompetent to change her residence and domicile and execute a power of attorney and revocation
of power of attorney. The evidence establishes that at the very least Leola had lucid intervals and
there simply is no proof that on the specific dates involved Leola was not mentally competent.
However, this does not answer the question of whether the evidence shows that Leola made a
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decision to change her residence and domicile to Mississippi. The documents signed by Leola, the
revocation of power of attorney, and the new power of attorney to Thomas, are quite specific that
Leola is a resident of Memphis, Shelby County, Tennessee. Considering this proof and the fact that
Thomas relies upon the power of attorney, premising his complaint thereon, we find that Leola was
a resident of Memphis, Shelby County, Tennessee. Therefore, we agree with the trial court, but for
different reasons; that Leola was a resident of Memphis, Shelby County, Tennessee at the time the
petition for conservatorship was filed.
The question we are presented with, however, is whether the trial court properly appointed
a conservator based upon the pleadings filed. We must bear in mind that the adversarial proceeding
in existence was a suit by Thomas against Rae Ann. Rae Ann filed a conservatorship in that cause,
and it appears from the record that there was no service of process on Leola, the subject of the
conservatorship. T.C.A. § 34-1-106 provides:
34-1-106. Petition for appointment in fiduciary. - (a) The petition
for the appointment of a fiduciary shall be served in accordance with
the Tennessee Rules of Civil Procedure.
(b) Notice by certified mail with return receipt requested shall be
given by the clerk of the court to the closest relative or relatives of the
respondent required to be named in the petition and to the person, if
any, having care or custody of the respondent or with whom the
respondent is living.
Although the court appointed a guardian ad litem, as required by T.C.A. § 34-1-107, the
reports of the guardian ad litem do not indicate that the guardian ad litem complied with the specific
provisions of T.C.A. § 34-1-107 (d)(2)(3)(4). Moreover, T.C.A. § 34-1-108 provides for explicit
notice to the respondent of the date set for the hearing, and there is no proof of service to show
compliance with this requirement.
Nevertheless, a nonjury trial was held on July 18, 2000 to July 24, 2000, resulting in the
decision of the court heretofore stated. Notwithstanding the procedural defects in the proceeding,
it appears from the record that at least at the time of the hearing, Leola was not capable of managing
her own affairs and some intervention by the court was necessary. As this Court noted in In Re:
Conservatorship of Clayton, 914 S.W.2d 84 (Tenn. Ct App. 1995):
The courts are ultimately responsible for the property of
persons for whom they appoint conservators or guardians. Hinds v.
Buck, 177 Tenn. at 448, 150 S.W.2d at 1072. They retain continuing
control over guardians and conservators because the persons who
accept these appointments become “quasi-officials” of the court
appointing them. See Logan v. Graper, 155 Tenn. 565, 568, 4
S.W.2d 955, 956 (1927). Part of this control includes the authority
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to order an accounting when a conservatorship is terminated. Tenn.
Code Ann. § 34-13-108(e) (Supp. 1994).
Id. at 92.
Although there are procedural and evidentiary questions involved concerning the
conservatorship proceeding, there is a chancery court order appointing a conservator in July of 2000
that justified the conservator to take over Leola’s assets. As this Court noted in Clayton, the
conservator is an officer of the court from the time of the appointment, and now that the
conservatorship has ended by the death of Leola,4 it is proper for the conservator to file the proper
accounting. See T.C.A. § 34-3-108 (e).
We will now consider Issue 2:
2. Whether the trial court has jurisdiction to declare a Last will and
testament void prior to the death of testatrix?
In the trial court’s findings of fact and conclusions of law, the trial court stated that the last
will and testament executed by Leola on October 28, 1998, was void, but this provision was not
carried forward in the final decree entered in the cause. We do find it necessary, however, to address
this finding, although not in the final decree.
T.C.A. § 32-3-101 (2001) provides:
32-3-101. Operation of will. - A will shall be construed, in reference
to the real and personal estate comprised in it, to speak and take effect
as if it had been executed immediately before the death of the testator,
and shall convey all of the real estate belonging to the testator, or in
which the testator had any interest at the testator’s decease, unless a
contrary intention appear by its words in context.
Under this statute, the will must take effect as if it had been executed immediately before the death
of the testator. Bell v. Shannon, 367 S.W.2d 761 (Tenn. 1963). The provisions for the contest of
a will are explicitly set out in statutes, T.C.A. § 32-4-101 - 109. The statutory proceeding to contest
a will is analogous to the probate of a will in solemn form. See Bearman v. Camatsos, 385 S.W.2d
91 (Tenn. 1964); Arnold v. Marcum, 352 S.W.2d 936 (Tenn. Ct. App. 1961). Of course, a will
cannot be probated until after the death of the testatrix or testator and it is clear that the will is
subject to revocation at any time prior to becoming effective upon the death of the testator or
testatrix. “The capacity to make a will must be adjudged following the offer of probate of the will
and must be determined as of the specific time the will was made.” Gill v. Hendrix, 913 S.W.2d
184, 194 (Tenn. Ct. App. 1996). In the instant case, there was no justiciable issue concerning the
4
It is a post-judgment fact that Leola died on December 2, 2001.
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1998 will or any other will of Leola because she was not deceased. In effect, consideration of the
1998 will was a declaratory judgment, which is not proper in the absence of a justiciable controversy.
The declaratory judgment act does not give the courts jurisdiction to render advisory opinions to
assist the parties or to allay their fears as to what may occur in the future. Parks v. Alexander, 608
S.W.2d 881 (Tenn. Ct. App. 1980) cert. denied, 451 U.S. 939 (1981). Thus, the finding of the trial
court that Leola’s 1998 will is invalid is vacated.
We will now consider Issue 4:
4. Whether the trial court erred in allowing the guardian ad litem to
file a report containing hearsay, in making a recommendation to the
court, testifying on issues of mental competency, and allowing the
guardian ad litem a fee?
Appellant’s entire argument on this issue is premised on the decision of this Court in
McKeehan v. McKeehan, No. 02A01-9407-CV-165, 1995 WL 695124 (Tenn. Ct. App. Nov. 21,
1995); however, it appears that the appellant’s reliance on this case is misplaced. McKeehan
involved a child custody case, and the primary issue involved was the best interest of the child. In
the instant case, the appellant objects to the guardian ad litem testifying as to her opinion of Leola’s
mental competency. The guardian ad litem testified concerning her meetings with Leola and her
observations from these meetings. She listed details of conversations and the appearance and
conduct of Leola when she was personally involved with her. “Tennessee law permits a lay witness
to testify regarding the sanity of an individual if a factual foundation is laid that is sufficient to justify
the lay opinion and give it credibility.” Neil P. Cohn, et al., Tenn. Law of Evid., § 701.4 at 452 (3d
ed. 1995).
We are not sure what appellant’s complaint is with the report of the guardian ad litem, aside
from the opinion testimony therein of Leola’s competency, but we note that the guardian ad litem
is required to make a written report to the court. T.C.A. § 34-1-107 (f)(2001) provides:
34-1-107, Guardian ad litem. - . . . (f) The guardian ad litem shall
make a written report to the court at least three (3) days prior to the
date set for hearing the matter. The written report shall provide the
court with the results of the guardian ad litem’s investigation. The
guardian ad litem’s report shall specifically state whether:
(1) (A) The respondent wants to contest:
(i) The need for a fiduciary;
(ii) Merely the person to be the fiduciary; or
(iii) Neither;
(B) If the respondent wants to contest any portion of the
proceeding and the guardian ad litem’s opinion is that there should be
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a fiduciary appointed, the guardian ad litem shall identify the
adversary counsel or indicate there is none and request the
appointment of an attorney ad litem;
(2) A fiduciary should be appointed and, if so, whether:
(A) The proposed fiduciary should be appointed; or
(B) Someone else, identified by the guardian ad litem, should be
appointed;
(3) The proposed property management plan should be adopted and,
if not, what changes should be considered.
(4) The respondent will attend the hearing and, if, in the opinion of
the guardian ad litem it is not in the respondent’s best interest to
attend, why.
Admittedly, the guardian ad litem’s report did not completely detail the requirements of the
statute, nevertheless, she was authorized to file a report to be considered by the court.
As to the guardian ad litem fee, the court is authorized to award such a fee by T.C.A. § 34-1-
114, which provides:
34-1-114. Charging of costs of proceedings. - (a) If a fiduciary is
appointed, the costs of the proceedings, which are the court costs, the
guardian ad litem fee, the required medical examination costs and the
attorney’s fee for the petitioner, shall be charged against the property
of the respondent to the extent the respondent’s property exceeds the
supplemental security income eligibility limit. If no fiduciary is
appointed, the costs of the proceedings shall be charged against the
petitioner. The guardian ad litem fee and the attorney’s fee for the
petitioner shall be established by the court. If a fiduciary is cited for
failure to file an inventory or accounting, the costs incurred in citing
the fiduciary, in the discretion of the court, may be charged to and
collected from the cited fiduciary.
(b) Notwithstanding the provisions of subsection (a), if a petition for
a standby fiduciary is filed pursuant to § 34-1-119(c), and regardless
of whether a standby fiduciary is appointed, the costs of the action
shall be charged against the petitioner.
In any event, there was sufficient evidence in the record from other sources to support the
chancellor’s findings, and if there was any error in the admission of the testimony of the guardian
ad litem it was harmless error.
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Although Thomas does not raise an issue concerning the quit-claim deed to 4228 Trudy
executed by his mother, Leola, on April 22, 1999, we feel it is important to discuss this matter. Prior
to this time, Leola had executed a power of attorney, dated October 28, 1998, designating Thomas
as her attorney in fact.
Under Tennessee law, “[a] person authorized to act on behalf of another by virtue of an
unrestricted power of attorney has [a] confidential relationship with [the] person who executed the
power of attorney.” See Crain v. Brown, 823 S.W.2d 187, 194 (Tenn. Ct. App. 1991)(citing
Mitchell v. Smith, 779 S.W.2d 384 (Tenn. Ct. App. 1989)). Furthermore, the existence of a
confidential relationship followed by a transaction wherein the dominant party receives a benefit
from the other party creates a presumption of undue influence which be rebutted only by clear and
convincing evidence of the fairness of the transaction. See Matlock v. Simpson, 902 S.W.2d 384,
385 (Tenn. 1995).
In the present case, there is no evidence in the record to rebut the presumption of undue
influence. Although the evidence preponderates against the trial court’s finding that Leola was
incompetent when she executed the deed, we nevertheless affirm the trial court’s holding that the
quit claim deed is void, not because Leola was incompetent, but because there is no evidence in the
record to rebut the presumption of undue influence.
We will now consider appellee’s issues. As to Issues 1, 2, and 3, appellee points to no place
in the record where these issues are involved in the proceeding as required by Rule 6, Rules of the
Court of Appeals. Moreover, appellee makes no legal argument and cites no supporting authority,
and these issues will not be considered further by this Court. See Wilhite v. Brownsville Concrete
Co., Inc., 798 S.W.2d 772 (Tenn. Ct. App. 1990); State ex rel. Dept. of Transportation v. Harvey,
680 S.W.2d 792 (Tenn. Ct. App. 1984).
We will consider issues four, five, and six together:
4. Whether the trial court erred in awarding only the amount of
$6,500.00 as attorney’s fees to Rae Ann’s attorney?
5. Whether the trial court erred in its award of a limited amount of
discretionary costs?
6. Whether the trial court erred by ordering the costs to be paid out
of the estate?
Appellee first asserts that the trial court should have awarded the appellee a greater amount
of attorney’s fees. The appellee states, “[t]he trial court’s award of $6,500.00 was, in some ways,
generous, but it was in fact arbitrary. The trial court made that decision without permitting the
defendant’s attorney to submit a statement of fees.” Appellee points to no place in the record where
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such action appears and cites no authority, and we will not consider this issue further. See Wilhite
v. Brownsville Concrete Co., Inc., supra.
Appellee next asserts that pursuant to Tenn.R.Civ.P. 68, she submitted two detailed
settlement offers to the appellant which were declined outright. She asserts that this unnecessarily
prolonged the litigation and caused the parties to go to the time, trouble, and expense of a six-day
trial. The proceeding in which the proposed settlement was filed involved the conservatorship
proceeding and was not a proper subject of an “offer of settlement.” The trial court had to consider
the evidence in the case and the legal authorities in order to determine whether a conservatorship was
authorized. The agreement or disagreement of the appellant would have no effect on the trial court’s
decision in that regard. The trial court properly disregarded the offer of settlement in its
consideration of fees and costs. As to Tenn.R.Civ.P. 54, appellee has pointed out no abuse of
discretion on the part of the trial court, and we find none from the record. Appellee has cited no
authority in the argument that the attorney’s fees and costs should be assessed against appellant
personally instead of being paid out of the estate. Therefore, we will consider this issue no further.
As to issues seven and eight, appellee has presented no argument, and we will consider these
issues waived.
In sum, we vacate the trial court’s findings that in October, 1998, Leola Wynns was mentally
incompetent to change her domicile and to execute a power of attorney and revocation of power of
attorney on the specific date involved. We also vacate the finding of the trial court that the 1998 will
of Leola Wynns is void. The order of the trial court is affirmed in all other respects. The case is
remanded to the trial court for further proceedings concerning the termination of the conservatorship
and the accounting necessitated thereby. Costs are assessed one-half against the appellant, Thomas
Clinton Wynns, III, and his surety, and one-half against the appellee, Rae Ann Cummings.
_________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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