In Re: Conservatorship of Gladys R. Burchard, and Public Guardian for the Elderly as Conservator for Gladys R. Burchard v. Ralph O. Burchard ( 2007 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 14, 2007 Session
IN RE: CONSERVATORSHIP OF GLADYS R. BURCHARD, AND PUBLIC
GUARDIAN FOR THE ELDERLY, AS CONSERVATOR FOR GLADYS R.
BURCHARD, v. RALPH O. BURCHARD
Direct Appeal from the Chancery Court for Hamilton County, Part I
No. 04-G-128 Hon. W. Frank Brown, III., Chancellor
No. E2006-01252-COA-R3-CV - FILED JUNE 7, 2007
Petitioner intervened in this action, averring that the conservator for her mother had died and asked
that she be appointed conservator of her mother. The Trial Court appointed a successor conservator
and ruled that petitioner had no standing to contest the conservatorship and to be appointed
conservator since she was a non-resident of the State. On appeal, we affirm the Judgment of the
Trial Court.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.
Debra J. Lanthripp, pro se, Trenton, Georgia, appellant.
Jerre B. Mosley, Chattanooga, Tennessee, for Conservator.
OPINION
Background
This conservatorship originated when Ralph Burchard, the husband of Gladys
Burchard, filed a Petition on August 11, 2004, seeking appointment of a conservator for his wife,
alleging that she was unable to care for herself and her financial affairs.
On August 27, 2004, the Trial Court entered an Order finding that Mrs. Burchard was
disabled and appointed Darlene Burnette, Public Guardian for the elderly, as her conservator with
instructions for the management of her ward.
On October 14, 2004, the Burchards filed a Petition for Termination of the
Conservatorship, alleging that Mrs. Burchard had been placed in an assisted living facility, and that
she had not been properly cared for. During the pendency of this matter, Debra Lanthripp (Mrs.
Burchard’s daugher), appellant herein, filed a Motion for Substitution of Conservator, suggesting
that Darlene Burnette, Public Guardian and Conservator for Mrs. Burchard, had died and asking that
Mrs. Lanthripp be named Conservator.
Subsequently, the Court entered a Memorandum Opinion and Order and noted that
there was also a lawsuit pending regarding ownership of the large annuity which the Conservator
claimed was bought with the proceeds of the sale of real estate that was titled solely to Mrs.
Burchard. The Court stated that Mr. Byrd, Mr. Burchard’s former attorney, was seeking payment
of his legal fees from the assets of the conservatorship, related to his representation of Mr. Burchard
in both this action and the other action regarding the annuity ownership. The Court held that in order
to allow the payment of such fees, pursuant to Tenn. Code Ann. §34-1-113, the Court had to find that
the representation protected and benefitted Mrs. Burchard or her property or that payment of the fees
was in her best interests. The Court found that neither was true in this situation, and denied payment
of Mr. Byrd’s fees.
The Court then entered an order on March 14, 2006, which was based upon the
parties’ agreement, and involved both lawsuits. The Court ordered the annuity case would be settled
by awarding one-half of the annuity to Mr. Burchard and one-half to Mrs. Burchard. The Court
ordered the real estate would be sold, and that 3/4 of the proceeds would go to Mrs. Burchard and
1/4 to Mr. Burchard. The Court denied the Motion to Terminate Conservatorship, and reserved the
Motion for Substitution of Conservator. The Court also declared a quitclaim deed executed by Mrs.
Burchard on January 13, 2006, null and void, since she was under a legal disability.
On May 12, 2006, the Court entered a Memorandum Opinion, wherein the Court
stated that Mrs. Burchard’s conservator and guardian ad litem, as well as Mr. Burchard’s attorney,
advised the Court that they had settled all the issues, but the children did not agree. These parties
had submitted an Order which the Judge signed, but the children did not agree, and filed a Motion
to set aside the Order. The Court stated that a hearing was held on May 8, 2006, on the Motion to
Set Aside and the Motion seeking to substitute Ms. Lanthripp as conservator for her mother. The
Court stated that the Burchards had raised an issue regarding whether the children had any standing.
The Court found that based on this Court’s ruling in In re Conservatorship of Groves, 109 S.W.3d
317 (Tenn. Ct. App. 2003), the children had no present property rights in the property belonging to
the Burchards, and thus had no standing to object to the agreement reached between the Burchards
regarding their property. The Court said the agreement between the Burchards regarding their
property was reasonable, left the annuity jointly titled as the parties established it, left the home place
titled to Mrs. Burchard as it was originally, and provided for the home place to be sold with 3/4 of
the proceeds to Mrs. Burchard and 1/4 of the proceeds to Mr. Burchard. The Court said this was fair
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in that Mrs. Burchard owned the property before the parties’ marriage, but Mr. Burchard had paid
most of the taxes, insurance, repair and maintenance on the home during the parties’ 28-year
marriage. Mr. Burchard surrendered any interest in other properties owned by Mrs. Burchard in
Georgia and Florida, and withdrew his Petition to Terminate Conservatorship.
The Court found that the settlement was in Mrs. Burchard’s best interests, ended a
contentious and expensive litigation, and would therefore preserve the parties’ limited estates. The
Court then issued Letters of Conservatorship to the new Public Guardian, Paul Burke, II.
The Court found that pursuant to Tenn. Code Ann. §34-3-108, a conservator can be
discharged for certain specific reasons, including the respondent is no longer disabled, the best
interests of the respondent require the conservatorship to be terminated, the conservator has failed
to perform her duties, or the conservator has failed to act in the ward’s best interests. The Court
found that Ms. Lanthripp did not allege any of these reasons in her Petition, and that, in fact,
statutory grounds did not exist to remove the public guardian as conservator.1 The Court
characterizes Ms. Lanthripp’s Petition as basically alleging that the office of conservator was vacant
and no one was representing her mother’s interest, which was not the case.
Next, the Court found that based on Ms. Lanthripp’s actions, appointing her as
conservator would not be in her mother’s best interests, because she objected to the settlement,
which would lead to continued litigation and financial destruction of both of the Burchards’ Estates,
and by seeking to have her mother removed from assisted living and brought home, would not be
in Mrs. Burchard’s best interests. Finally, the Court said that Tenn. Code Ann. §35-50-107(a)(1)
prohibits Ms. Lanthripp from serving as conservator, since she was not a resident of Tennessee, and
there was no reason to split the conservatorship duties in this case.
Thereafter, the guardian ad litem, and the attorney for the conservator, filed fee
requests and itemized statements of time expended. Responding to these requests, the Court granted
fees and expenses to Mr. Mosley of $12,096.00, and to Ms. Norwood $8147.72, to be paid by the
estate. Ms. Lanthripp appealed and raises these issues:
1. Whether the Trial Court erred in finding that Ms. Lanthripp had no standing?
2. Whether the settlement agreement and fee awards are equitable?
1
34-3-108, Discharge of conservator - Modification of duties - Termination - Final
accountings and distribution of assets. - (a) A conservator appointed under this chapter may be
discharged or have its duties modified if the court determines that the respondent is no longer a
disabled person, or that it is in the best interests of the disabled person that the conservatorship be
terminated, or that the conservator has failed to perform its duties and obligations in accordance with
the law, or that the conservator has failed to act in the disabled person’s best interest so as to warrant
modification or termination. The disabled person or any interested person on the disabled person’s
behalf may petition the court at any time for a termination or modification order under this section.
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3. Whether Ms. Lanthripp qualifies to be conservator for Mrs. Burchard?
Discussion
In order for Ms. Lanthripp to have standing in this proceeding, she was required to
demonstrate that she “sustained distinct and palpable injury, that the injury was caused by the
challenged conduct, and that the injury is apt to be redressed by a remedy that the Court is prepared
to give. Metro. Air Research Testing Authority, Inc. v. Metro. Gov’t of Nashville and Davidson
County, 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992)(citations omitted).
Ms. Lanthripp cannot show such an injury in this case. She admits in her brief that
she is seeking only to keep the conservator from “giving away” her mother’s property by agreeing
to the settlement which awards portions of the annuity and home place to Mr. Burchard. Since Ms.
Lanthripp has no property interest at issue, she has suffered no injury by the settlement and division
of assets contained therein. We held in Groves that someone who would eventually inherit from the
ward had no standing to contest deeds executed by the ward conveying property to someone else.
Groves, 109 S.W.3d 317 (Tenn. Ct. App. 2003). We affirm the Trial Court’s ruling on this issue.
Ms. Lanthripp asserts that the settlement is inequitable to her mother, and that it was
unfair to award fees to Ms. Norwood, the guardian ad litem, and fees to Mr. Mosley for his
representation in the lawsuit regarding the annuity, because his actions ultimately did not benefit
Mrs. Burchard. However, Ms. Lanthripp lacks standing to contest the settlement, or any award of
fees from her mother’s estate, due to her lack of interest therein.
Assuming arguendo that Ms. Lanthripp did have standing, she did not show the
settlement or fee awards to be inequitable. The settlement that was reached between the guardian
ad litem, counsel for Mr. Burchard and counsel for the conservator splits the jointly-held annuity
50/50, and provides that when the home place is sold, Mr. Burchard will receive 1/4 of the proceeds,
and Mrs. Burchard will get the rest.
There was no evidence demonstrating that the division was inequitable. It was
alleged that Mr. Burchard would inherit Mrs. Burchard’s entire estate if he survived her, but he
relinquished those claims, as well as any claim to other property that she solely owned, and the deed
Mrs. Burchard signed conveying the home place to both parties was voided. We agree with the Trial
Court that the settlement is well-reasoned and equitable, benefits Mrs. Burchard and her Estate,
avoids needless litigation and such expenses. We note that Tenn. Code Ann. §34-1-121(b) allows
the court to approve a settlement regarding the ward’s property in a conservatorship proceeding if
the court deems it to be in the ward’s best interests.
With regard to the fee awards, the Court approved the reduced fee awards as
reasonable, and beneficial to Mrs. Burchard and her Estate. The Court considered the factors
contained in Tenn. Sup. Ct. R. 8, RPC 1.5, and noted that both lawyers had excellent reputations,
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were experienced in this type of work, and the Court reduced the fees out of concern for depleting
Mrs. Burchard’s limited estate. We affirm the Trial Court on the issue of reasonableness of the fees.
Finally, Ms. Lanthripp asserts that she should have been given an opportunity to
present evidence regarding whether she should have been appointed conservator for her mother, and
that pursuant to Tenn. Code Ann. §35-50-107(a)(2)(F), she could serve as conservator of the person
for her mother, although she is a non-resident. In Ms. Lanthripp’s Motion, she simply suggested the
death of Mrs. Burnette, and asked to be substituted as conservator, and did not raise any issue either
in her Motion or at the hearing to suggest that she was asking the Court to remove the Public
Guardian due to any neglect of her mother, and she cannot raise this issue now on appeal. Tenn. R.
App. P. 36.
While Ms. Lanthripp is correct in that she could serve as conservator of the person
for her mother if another resident fiduciary was appointed as conservator of the property, the Court
held there was no reason to split the conservatorship duties in this case. The Court by implication
found that it would not be in Mrs. Burchard’s best interests for appellant to be appointed her
conservator, and the evidence supports this conclusion.
Ms. Lanthripp, in her reply brief, attaches what purports to be an Order of the Court
based on the hearing on December 18, 2006, wherein the Court allowed the Public Guardian for the
Elderly program to resign as conservator, and appointed Ralph Burchard and Awilda Keyt as co-
conservators of Gladys Burchard. This is not an issue in this record and may not be raised by the
appellant on appeal.
We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to Debra J. Lanthripp.
______________________________
HERSCHEL PICKENS FRANKS, P.J.
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