In Re Conservatorship of Waltraud E. Lemonte ( 2017 )

11/17/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 3, 2017 Session
IN RE CONSERVATORSHIP OF WALTRAUD E. LEMONTE
Appeal from the Chancery Court for Montgomery County
No. MC-CH-CV-CP-16-16 Laurence M. McMillan, Jr., Chancellor
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No. M2016-02205-COA-R3-CV
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This appeal involves competing conservatorship petitions filed by the children of the
Ward. Appellees, daughters of the Ward, filed a petition seeking to be named as co-
conservators for the Ward and seeking to revoke powers of attorney executed by the
Ward in favor of her son who is the Appellant. Appellant filed his answer and counter-
petition to be appointed conservator. Appellees opposed Appellant’s counter-petition on
the ground that he is a convicted felon and, therefore, ineligible to serve as the Ward’s
conservator, under Tennessee Code Annotated Section 40-20-115. The trial court found
that Appellant’s Nevada sentence for drug charges disqualified him from serving as the
Ward’s agent or fiduciary. As such, the trial court revoked the Appellant’s powers of
attorney and dismissed Appellant’s counter-petition. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.
Ronald Ray LeMonte, Jr., Woodlawn, Tennessee, pro se.
Ashleigh L. Travis, Clarksville, Tennessee, for the appellees, Elke LeMonte and Bonnie
Alice Castor.
OPINION
I. Background
Elke LeMonte, Bonnie Castor (together “Appellees”), and Appellant Ronald R.
LeMonte, Jr. are the children of Waltraud E. LeMonte (the “Ward”). It is undisputed that
the Ward suffers from advanced age and dementia. According to Appellees’ brief, in
February 2015, Appellant influenced the Ward, who was then in the beginning stages of
dementia, to execute powers of attorney (general and medical) naming Appellant as her
attorney-in-fact. Appellees further claim that Appellant “began a course of action
encouraging the [Ward] to cease all communication with and to fear Appellees; removing
financial and other documents from [the Ward’s] home; and failing to notify Appellees of
[the Ward’s] doctors’ appointments, medications, and progress[ing] medical condition.”
In 2013, Appellant was charged, in Nevada, with Possession of a Schedule I or
Schedule II Controlled Substance for the Purpose of Sale, a Category D Felony as
Defined by Nevada Revised Statutes Section 453.337. Specifically, Appellant was
stopped by Nevada Highway Patrol, and 4,472.4 grams of marijuana were found hidden
in Appellant’s vehicle. On July 11, 2016, Appellant was convicted of the offense and
sentenced to a maximum of 32 months. However, Appellant’s conviction was suspended
(with credit for 25 days served), and he was placed on probation for 60 months.
On April 11, 2016, before Appellant was sentenced in Nevada, Appellees filed a
petition seeking to be named as co-conservators for the Ward. After Appellant was
convicted of the drug offense, Appellees filed a motion to invalidate the powers of
attorney executed by the Ward in favor of Appellant.
On April 28, 2016, Appellant filed his answer and counter-petition to be appointed
conservator for the Ward. Appellees opposed Appellant’s counter-petition on the ground
that he is a convicted felon and is, therefore, ineligible to serve as the Ward’s conservator
under Tennessee Code Annotated Section 40-20-115, infra.
On June 10, 2016, the trial court entered an agreed order, under which the parties
agreed, inter alia, that Appellant would not use the powers of attorney pending further
orders of the court. Appellant was also ordered to return the Ward’s personal property
and to refrain from removing any items from her home. On July 26, 2016, Appellees
filed a motion to deem the powers of attorney invalid and to dismiss Appellant’s counter-
petition to be appointed conservator. Appellant opposed this motion. By order of
September 13, 2016, the trial court invalidated the powers of attorney due to Appellant’s
felony conviction. By order of November 18, 2016, the trial court appointed Appellees
as co-conservators. Appellant appeals.
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II. Issues
Appellant raises two issues for review:
1. Does Tennessee Code Annotated Section 40-20-115 apply to a felon who has
never been imprisoned in a penitentiary while concurrently serving in a
fiduciary relationship?
2. Did the trial court err when it invalidated the powers of attorney of the
Appellant while also dismissing the Appellant’s counter-petition seeking to
be appointed conservator in the event the powers of attorney were
invalidated?
We perceive that there is one dispositive issue, which we state as follows:
Whether the trial court’s ruling invalidating Appellant’s powers of attorney and
dismissing Appellant’s Counter-Petition to be Appointed Conservator, under Tennessee
Code Annotated Section 40-20-115, was correct?
III. Standard of Review
The issue on appeal presents a question of law in that it requires us to interpret and
apply Tennessee Code Annotated Section 40-20-115. The construction of a statute is a
question of law subject to de novo review with no presumption of correctness. Ivey v.
Trans Global Gas & Oil, 3 S.W.3d 441, 446 (Tenn. 1999). The primary purpose of
statutory construction is “to ascertain and give effect to the legislative intent without
unduly restricting or expanding a statute’s coverage beyond its intended scope.” Owens
v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citation omitted). Courts must restrict their
review “to the natural and ordinary meaning of the language used by the legislature in the
statute, unless an ambiguity requires resort elsewhere to ascertain legislative intent.”
Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998) (citing Austin v. Memphis Pub.
Co., 655 S.W.2d 146, 148 (Tenn. 1983)).
A statute is ambiguous where it is capable of conveying more than one meaning.
Bryant v. HCA Health Services of No. Tennessee, Inc., 15 S.W.3d 804, 809 (Tenn.
2000). When considering the meaning of a statute, courts “must consider the language
employed in context of the entire statute without any forced or subtle construction which
would extend or limit its meaning.” Browder v. Morris, 975 S.W.2d at 311 (citing
Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994). A court should presume
that “the Legislature used each word in the statute purposely and that the use of these
words conveys some intent and had a meaning and purpose.” Locust v. State, 912
S.W.2d 716, 718 (Tenn. Ct. App. 1995) (citation omitted); see also Bryant v. HCA
Health Services No. Tennessee, Inc., 15 S.W.3d at 809. In sum, “[w]here words of the
statute are clear and plain and fully express the legislature’s intent, there is no room to
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resort to auxiliary rules of construction, and we need only enforce the statute as written.”
Browder v. Morris, 975 S.W.2d at 311 (citations omitted).
While we are cognizant of the fact that Mr. LeMonte is representing himself in
this appeal, it is well-settled that “pro se litigants are held to the same procedural and
substantive standards to which lawyers must adhere.” Brown v. Christian Bros. Univ.,
No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5,
2013), perm. app. denied (Tenn. Jan. 15, 2014). This Court has held that “[p]arties who
choose to represent themselves are entitled to fair and equal treatment by the courts.”
Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000); Paehler v.
Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997).
Nevertheless, “courts must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to observe.” Young
v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003); Edmundson v. Pratt, 945
S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n.4
(Tenn. Ct. App. 1995).
IV. Analysis
The statute in question in this case, Tennessee Code Annotated Section 40-20-115,
states as follows:
The effect of a sentence of imprisonment in the penitentiary is to put an end
to the right of the inmate to execute the office of executor, administrator or
guardian, fiduciary or conservator, and operates as a removal from office.
Tenn. Code Ann. § 40-20-115. As articulated by the Tennessee Supreme Court, this
statute is a “specific disability statute,” to-wit:
Tennessee has “specific disability statutes,” which “designate a particular
civil disability that occurs upon the conviction and remains in effect
throughout the defendant's life unless restored by a specific statutory
procedure.” Cole v. Campbell, 968 S.W.2d 274, 276 (Tenn. 1998) (citing
Special Project, The Collateral Consequences of a Criminal Conviction, 23
VAND. L. REV. 929, 951 (1970)). Specific disability statutes include the
loss of the right to vote, see Tenn. Code Ann. § 40-20-112 (1997); the loss
of the right to hold public office, see id. § 40-20-114; the loss of the right to
serve as a fiduciary, see id. § 40-20-115; and the loss of the right to possess
a handgun, see id. § 39-17-1307(b).
State v. Johnson, 79 S.W.3d 522, 527 (Tenn. 2002) (emphasis added).
Turning to the record, it is undisputed that Appellant was convicted of Possession
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of a Schedule I or Schedule II Controlled Substance for the Purpose of Sale, a Category
D Felony as Defined by Nevada Revised Statutes Section 453.337. Appellant was
sentenced to “a maximum term of 32 months in the Nevada Department of Corrections.”
Appellant’s sentence of 32 months was suspended, and he was placed on probation for 60
months. On appeal, Appellant argues that the fact that he did not serve actual prison time
precludes applicability of Tennessee Code Annotated Section 40-20-115. Appellant
further argues that he was never an “inmate” in prison and that the statute in question was
strictly aimed at “criminal wrongdoers” sentenced to prison, not those placed on
probation. As discussed by the Tennessee Supreme Court in Johnson, it is not the fact of
imprisonment, but rather the conviction that forms the basis for exclusion from fiduciary
roles. Here, it is undisputed that Appellant was found guilty and sentenced to
imprisonment in a state correctional facility in Nevada for a felony drug offense.
In its order terminating Appellant’s powers of attorney and dismissing Appellant’s
counter-petition to be appointed conservator, the trial court found:
[P]ursuant to Tenn. Code Ann. § 40-20-115 and supporting case law, the
[Appellant’s] felony conviction to the Nevada Department of Corrections
disqualifies him to be an agent or fiduciary under a power of attorney and
to be appointed as Conservator.
We agree. The plain language of Tennessee Code Annotated Section 40-20-115 prohibits
any person, who has received a sentence of imprisonment (whether the sentence is
actually served), from serving as a fiduciary or conservator. Accordingly, we conclude,
as did the trial court, that Appellant’s Nevada felony conviction and his sentence to the
Nevada Department of Corrections disqualify him from being an agent or conservator for
the Ward under Tennessee Code Annotated Section 40-20-115. As such, the trial court
did not err in terminating the powers of attorney or in dismissing Appellant’s counter-
petition to be appointed conservator for the Ward.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to the Appellant, Ronald Ray LeMonte, Jr.
Because Mr. LeMonte is proceeding in forma pauperis in this appeal, execution for costs
may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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