In Re: Conservatorship of John Daniel Tate

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 20, 2011 Session

IN RE: CONSERVATORSHIP OF JOHN DANIEL TATE

Appeal from the Circuit Court for Davidson County
No. 07P-1654 David Randall Kennedy, Judge

No. M2010-01904-COA-R3-CV - Filed December 29, 2011

This is the second appeal arising from a disputed “temporary” conservatorship. Three issues
are presented: whether the evidence clearly and convincingly established that the respondent
was a disabled person in need of the protection and supervision of the court; which party is
responsible for the costs of the proceedings under Tennessee Code Annotated § 34-1-114(a);
and which party is responsible for discretionary costs under Tennessee Rule of Civil
Procedure 54.04(2). The petitioner was appointed “Temporary Conservator” and served in
this fiduciary capacity for thirty-one months until June of 2010, at which time the trial court
terminated the conservatorship upon the finding that the respondent was no longer a
“disabled person” as that term is defined in Tennessee Code Annotated § 34-1-101(7). Over
the objection of the ward, the trial court assessed the costs of the conservatorship against the
respondent pursuant to Tennessee Code Annotated § 34-1-114(a) because a “fiduciary” was
appointed, and discretionary costs pursuant to Tennessee Rule of Civil Procedure 54.04(2)
upon the finding that the petitioner was the “prevailing party.” The respondent contends this
was error because the conservator was merely appointed the “temporary conservator” and the
petition to create the conservatorship was ultimately dismissed. We find the evidence
presented to the trial court on November 14, 2007, clearly and convincingly established that
the respondent was a disabled person in need of a conservator of his person and property; we
find no error with the trial court’s conclusion that the petitioner was entitled to recover the
costs of the proceedings pursuant to Tennessee Code Annotated § 34-1-114(a) because a
conservator was appointed; and we find the trial court did not abuse its discretion in
assessing discretionary costs against the respondent under Tennessee Rule of Civil Procedure
54.04(2). Thus, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which R ICHARD H.
D INKINS, J., joined. P ATRICIA J. C OTTRELL, P.J., M.S., not participating.
Michael G. Hoskins, Nashville, Tennessee, for the appellant, John D. Tate.

Paul T. Housch, for the appellee, David E. Tate.

OPINION

This conservatorship proceeding was commenced on October 19, 2007, when David
E. Tate (“Petitioner”), filed a petition for conservatorship of his brother, John Daniel Tate
(“Respondent”). In the petition it was alleged that Respondent had a life threatening
disability due to substance abuse. Following a formal hearing on November 14, 2007, during
which a psychiatrist testified as to the need for a conservatorship, the petition was granted
and Petitioner was appointed “temporary conservator” of the person and property of
Respondent. Petitioner served as Respondent’s conservator for thirty-one months until June
of 2010, following another evidentiary hearing, when the trial court found that Respondent
was “no longer a ‘disabled person’ as defined under T.C.A. § 34-1-101(7)” and the
conservatorship was terminated.

In the interim, however, there were numerous hearings, many of which pertained to
Respondent’s insistence that the conservatorship was not needed, that the petition for
conservatorship should be dismissed, and that his rights should be restored to him. During
the ensuing months, a psychiatric evaluation was conducted and Respondent received
treatment; all the while Respondent continued his efforts to dismiss the petition. 1 After
several review hearings, the trial court entered a Scheduling Order and set a “final hearing”
for May 24, 2010. In the order, the trial court stated that it had already heard “clear and
convincing evidence for the establishment of a Temporary Conservatorship,” and that, “at
the Final Hearing, the remaining issue shall be whether the Temporary Conservatorship in
this cause should be made permanent, or in the alternative, modified or terminated based on
the evidence.”

Following the May 24, 2010 hearing, the trial court found that Respondent “now has
the capacity to manage his own affairs,” and “is no longer a ‘disabled person’ as defined
under T.C.A. § 34-1-101(7).” Therefore, pursuant to Tennessee Code Annotated §
34-3-108(e), the trial court issued its Final Order terminating the temporary conservatorship

1
During the pendency of the conservatorship proceedings, this Court granted a Tennessee Rule of
Appellate Procedure 10 application for an interlocutory appeal. Following a hearing we remanded the case
for “entry of a final judgment on the Petition for Appointment of Conservator from which the appellant will
be entitled to file an appeal as of right.” In re Tate, No. M2009-02174-COA-R10-CV, 2009 WL 4841036,
at *4 (Tenn. Ct. App. Dec. 15, 2009).

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on June 7, 2010. The conservator was given 60 days to wind down the conservatorship.2 That
order originally stated that the conservatorship was terminated in accordance with Tennessee
Code Annotated § 34-3-108(d); however, both parties filed motions to change the basis for
the termination. The Petitioner sought to add Tennessee Code Annotated § 34-3-108(e).
Respondent countered asserting that Tennessee Code Annotated § 34-3-108(d) & (e) were
applicable only in cases where a petition to terminate the conservatorship was filed, which
had not been done, and which Respondent asserted was not necessary because a permanent
conservatorship was never granted. In an order issued August 9, 2010, the trial court held that
the statutory provisions would be removed from the order, stating, “T.C.A. § 34-3-108(d) and
(e) are not applicable to the court’s ruling to terminate the Temporary Conservatorship in this
cause.”

Each party then filed motions seeking to have the costs of the conservatorship
proceedings and attorney fees charged against the other party under Tennessee Code
Annotated § 34-1-114(a) and discretionary costs pursuant to Tennessee Rule of Civil
Procedure 54.04.3 Petitioner asserted that because he was appointed conservator and
faithfully served in that capacity, he was entitled to recover the costs of the conservatorship
proceedings, including attorney’s fees, pursuant to Tennessee Code Annotated § 34-1-114(a).
Petitioner further asserted that, as the prevailing party, he was entitled to recover his
discretionary costs under Tennessee Rule of Civil Procedure 54.04 from Respondent.

Respondent countered insisting that the costs of the proceedings and attorney’s fees
could only be taxed upon the entry of a final judgment, and the appointment of a temporary
conservator was merely part of a series of interlocutory orders, not a final judgment. The
final judgment, Respondent argued, was the dismissal of the petition, which in turn also
dismissed the prior interlocutory orders appointing a temporary conservatorship, meaning
that no “fiduciary” had ever been appointed. Respondent also asserted that he was the

2
When the court determines that a conservator is “no longer needed” and issues an order terminating
the conservatorship, the conservatorship shall terminate. Tenn. Code Ann. § 34-3-108(e). Upon the entry of
the order terminating the conservatorship, the conservator has one hundred twenty days to file a preliminary
final accounting with the court, “which shall account for all assets, receipts and disbursements from the date
of the last accounting until the date the conservatorship terminates, and shall detail the amount of the final
distribution to close the conservatorship.” Id. If no objections are filed to the preliminary final accounting
within thirty days, the conservator shall distribute the remaining assets. Id. Once the evidence of the final
distribution is filed, on order of the court, the conservatorship proceeding shall be closed. Id.
3
Tennessee Code Annotated § 34-1-114(a) provides that in conservatorship cases, “if a fiduciary is
appointed, the costs of the proceedings shall be charged against the property of the respondent. . . . If no
fiduciary is appointed, the costs of the proceedings shall be charged against the petitioner.”

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prevailing party and, therefore, he was entitled to recover his discretionary costs under
Tennessee Rule of Civil Procedure 54.04.

In three separate orders issued June 18, 2010, the trial court held that, as a Temporary
Conservator, Petitioner was acting as a fiduciary for Respondent and was the “prevailing
party;” thus, pursuant to Tennessee Code Annotated § 34-1-114(a) and Tennessee Rule of
Civil Procedure 54.04(2), Respondent was required to pay Petitioner’s reasonable attorney
fees and expenses and the costs of the court-ordered medical evaluations, court reporters,
transcripts, and court costs. In another order, the court held that Petitioner was authorized to
sell certain assets of Respondent to cover these expenses and to collect royalties paid to
Respondent. This appeal followed.

I SSUES

Respondent challenges three aspects of the trial court’s decisions. First, he asserts that
the trial court erred in concluding that on November 14, 2007, the evidence was clear and
convincing that he was disabled and in need of the protection and supervision of the court.4
Second, he asserts that the trial court erred in denying his motion to charge the costs of the
proceeding to Petitioner. Third, he asserts the court erred in finding that Petitioner was the
“prevailing party,” and upon this finding erroneously denied his motion and granted
Petitioner’s motion for discretionary costs.

S TANDARD OF R EVIEW

“Because of the value our society places on individual autonomy and
self-determination, persons seeking the appointment of a conservator must prove by clear and
convincing evidence that the person for whom a conservator is sought is a ‘disabled person.’”
In re Conservatorship of Groves, 109 S.W.3d 317, 330 (Tenn. Ct. App. 2003) (quoting Tenn.
Code Ann. § 34-1-126). Pursuant to this evidentiary standard, the courts must draw “a
distinction between specific facts and the combined weight of these facts,”and determine
whether the combined weight of the facts establishes clearly and convincingly that a

4
In his brief, Respondent listed this issue as his third issue in the alternative to the other two issues.
We found it appropriate to address this issue first.

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conservatorship was warranted.5 In re Conservatorship of Trout, No. W2008-01530-COA-
R3-CV, 2009 WL 3321337, at *11 (Tenn. Ct. App. Oct. 15, 2009) (quoting In re Audrey S.,
182 S.W.3d 838, 861 n.26 (Tenn. Ct. App. 2005)).

A trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Bogan v. Bogan, 60
S.W.3d 721, 727 (Tenn. 2001); see also Tenn. R. App. P. 13(d) (2008). For the evidence to
preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005). When the resolution of an issue depends upon the credibility of witnesses, “[t]he
weight, faith, and credit to be given to any witness’s testimony lies in the first instance with
the trier of fact, and the credibility accorded will be given great weight by the appellate
court.” Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643
(Tenn. Ct. App. 2002).

To the extent there are issues of statutory interpretation, which are questions of law,
we review a trial court’s conclusions of law under a de novo standard upon the record with
no presumption of correctness. In re Conservatorship of Trout, 2009 WL 3321337, at *11
(citing Sullivan v. Edwards Oil Co., 141 S.W.3d 544, 547 (Tenn. 2004)).

A NALYSIS

The threshold question in a conservatorship proceeding is whether the respondent for
whom a conservator is sought is a disabled person as that term is defined in Tennessee Code
Annotated § 34-1-101(7). See Groves, 109 S.W.3d at 330. If the court determines the
respondent is not a disabled person, the trial court cannot appoint a conservator. Id. If, the
respondent is found to be a disabled person, even temporarily or partially, the court must
determine:

[W]hether the person is fully or partially incapacitated and whether the
incapacity is temporary or permanent. The trial court must also determine,
based on the nature of the incapacity, whether the disabled person requires
full-time supervision, protection, or assistance or whether partial supervision,
protection, or assistance will suffice. If the trial court determines that the
disabled person requires any sort of supervision, protection or assistance, it

5
Clear and convincing evidence “eliminates all serious or substantial doubt concerning the
correctness of the conclusions to be drawn from the evidence” and “produce[s] in the fact-finder’s mind a
firm belief or conviction regarding the truth of the factual propositions sought to be established by the
evidence.” Groves, 109 S.W.3d at 330.

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 must enter an order appointing a conservator and must specifically
“[e]numerate the powers removed from the respondent and vested in the
conservator.” Tenn. Code Ann. § 34-3-107(2). Any power not specifically
vested in the conservator remains with the person for whom the conservator
has been appointed.
....

Tennessee’s conservatorship statutes do not define the concept of incapacity
and do not identify any particular illnesses or conditions deemed to be
disabling or incapacitating. The definition of “disabled person” alludes in the
most general terms to “mental illness, physical illness, developmental
disability or other mental or physical incapacity.” Thus, while identification
of the disabling illness, injury, or condition is an important part of a
conservatorship proceeding, the pivotal inquiry involves not merely the
diagnosis but also the effect that the illness, injury, or condition has had on the
capacity of the person for whom a conservator is sought.

Groves, 109 S.W.3d at 331 (footnotes omitted) (emphasis added).

By statutory definition, a “disabled person” is any person eighteen years of age or
older “determined by the court to be in need of partial or full supervision, protection and
assistance by reason of mental illness, physical illness or injury, developmental disability or
other mental or physical incapacity.” Tenn. Code Ann. § 34-1-101(7). A “conservator” is “a
person or persons appointed by the court to provide partial or full supervision, protection and
assistance of the person or property, or both, of a disabled person.” Tenn. Code Ann. §
34-1-101(4).

I.
S UFFICIENCY OF THE E VIDENCE TO E STABLISH D ISABILITY

Tennessee Code Annotated § 34-1-126 provides that “[t]he court must find by clear
and convincing evidence that the respondent is fully or partially disabled and that the
respondent is in need of assistance from the court before a fiduciary can be appointed.”
(emphasis added). Respondent contends that the trial court erred in concluding on November
14, 2007, the evidence clearly and convincingly established that he was a disabled person in
need of the protection, assistance, and supervision of the trial court.

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 Prior to the hearing on November 14, 2007, Petitioner filed with the court, pursuant
to Tennessee Code Annotated § 34-3-105(a), the Report of Physician 6 of Board Certified
Psychiatrist William D. Kenner, M.D. In that report, Dr. Kenner stated under oath that he
made a personal physical and mental examination of Respondent on November 8, 2007, and
on a scale between Excellent, Good, Fair, Poor, Chronic, and Not Applicable, Dr. Kenner
determined that Respondent’s “mental condition” was poor, his “physical condition” was
poor, his “social condition” was poor, his “adaptive behavior” was poor, and the impact of
current living condition on his disability was poor. Further, Dr. Kenner stated that
Respondent was in need of a conservator to act on his behalf as a fiduciary for, inter alia, his
medical treatment, his physical well being, and his financial affairs.

Petitioner also filed with the court prior to the November 14, 2007 hearing a lengthy
and detailed narrative psychiatric report that Dr. Kenner provided, which set forth specific
statements of the reasons for the recommendation of conservatorship. See Tenn. Code Ann.
§ 34-3-105(c) (stating that the physician shall state “an opinion as to whether a conservator
is needed and the type and scope of the conservator with specific statement of the reasons for
the recommendation of conservatorship.”). Pertinent portions of Dr. Kenner’s narrative
psychiatric report of his meeting with Respondent, which took place at Respondent’s home
on November 8, 2007, are as follows:

When I interviewed [Respondent], he crafted his answers so as not to
reveal the extent and nature of his addiction. As a result, I have focused my
findings more on what I could observe myself rather than specifically what
[Respondent] said. Instead of using the standard form of a psychiatric report
that relies heavily on an individual’s history and present illness, I have
provided a narrative of my time with [Respondent] in hopes that such would
better inform the Court of [Respondent’s] mental state and physical condition.

I arrived at [Respondent’s] home at 5909 Old Harding Pike at
approximately 11:30 AM on November 8, 2007. I knocked and rang his

6
Tennessee Code Annotated § 34-3-105(a) directs that if the respondent has been examined by a
physician or a psychologist not more than ninety days prior to the filing of the petition, the report of the
examination shall be submitted with the petition. In this case, the examination was conducted on November
8, 2007, shortly after the petition was filed, and the report was filed with the court prior to the hearing on
November 14, 2007. The statute also provides that the physician’s sworn report shall contain the following:
“(1) The respondent’s medical history; (2) A description of the nature and type of the respondent’s disability;
(3) An opinion as to whether a conservator is needed and the type and scope of the conservator with specific
statement of the reasons for the recommendation of conservatorship; and (4) Any other matters as the court
deems necessary or advisable.” Tenn. Code Ann. § 34-3-105(c).

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doorbell for several minutes, before [Respondent] opened his door for my
house call. He greeted me wrapped in a comforter, and I explained who I was
and the purpose of my visit. None-the-less, he asked several times, who I was,
and then he explained that he usually slept during the day and stayed awake at
night.

For a fourth time, I explained the purpose of my visit and that his
interview would not be confidential in the same way it would be if he were in
treatment with me. [Respondent] struggled with the question of whose side I
was on. I stated that I had no side other than to evaluate him to determine
whether he was competent to manage his affairs and make health care and
other decisions.
...

After a few minutes, [Respondent] appeared from his bedroom. He had
on a dirty sweat shirt and stained jeans that were several sizes too large for
him. He tried to cinch them up with his belt, but they still slipped down across
his hips to show that he had not found his underwear. [Respondent’s] personal
hygiene suggested that he had neither shaved nor bathed in weeks or perhaps
months. His toenails were curved and about three-quarters-of-an-inch-long,
and his fingernails were about half that length. His hands were dirty, and dirt
formed thick, black crescents under each nail. [Respondent’s] breath and body
odor added to the aroma from the living room and kitchen to make the air in
his home almost too thick to breathe.
...

While [Respondent] proved cagey about the type and extent of his drug
use, he admitted its affects. He said that he had lost “about twenty-five pound,
maybe more,” since he had not weighed himself in months. Judging from the
space in his pants and the extra length of his belt he used to hold them up,
[Respondent] has gone down at least six inches in girth during his crack binge.
He said that six months ago, when he tried to stop, with a two-day stay at
Cumberland Height, he had become severely depressed. He spoke of visual
hallucinations, seeing a person, that may have been his tenant who occupies
an apartment at his house, but he was not sure. He explained that he gave the
fellow free rent in exchange for cleaning his house and mowing his yard, but
[Respondent] complained that he was missing money and other unspecified
valuables around his house.
...

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 Even though he did not admit it directly, [Respondent] clearly has
become dependent upon crack cocaine. The extent of his addiction and use has
impaired his health and his ability to care for himself even in the most basic
ways. While he said he wanted to, he showed no sign of stopping his binge.
Unlike many in similar circumstances, [Respondent] can probably afford to
continue using crack until his body gives out rather than his money. He has
withdrawn into an existence that resembles a homeless person except that he
has a roof over his head, but his house’s walls and roof only keep his
neighbors from seeing his squalid circumstances. He could just as easily live
in a garbage-strewn alley as in his house on Old Harding Pike.
...

In my opinion, [Respondent] has lost any ability to rehabilitate himself
by pulling on his own bootstraps. When scientists wanted to understand the
addictive qualities of various drugs, they hooked rats up with IVs that allowed
them to test the rats’ responses to the compounds. On narcotics, the rats would
press the bar and get up to a plateau dose. With that amount on board, they
would lead rather normal rat lives. They would eat, sleep and reproduce. If
cocaine were injected as a reward for pressing the bar, the rats simply stayed
at the bar pressing it day and night. They ignored food and female rats in heat.
If pressing the bar for cocaine were accompanied by an electrical shock, the
cocaine addicted rats continued to press the bar. Death was the only thing that
ended their addictions.

At this point, [Respondent’s] dependency is so profound that he should
be detoxified in an inpatient hospital setting rather than in a drug
rehabilitation setting. Crack cocaine depletes the body’s normal store of
neurotransmitters, and withdrawal from the stimulant leaves the addict’s brain
a wasteland. Major depression with a high risk of suicide often occurs with
patients who have used as much as [Respondent] has. For individuals in such
advanced stages of addiction, I usually recommend an out of state hospital,
since a closer one might only expand his sources of drugs and circle of
similarly addicted friends. I generally refer patients to the hospitals on the
Harvard Teaching Service, either Massachusetts General or McLean Hospital.

(Emphasis added).

Because Respondent challenged the need for a conservatorship, Dr. Kenner appeared
in person and testified at the November 14, 2007 hearing. Dr. Kenner’s in-court testimony
was wholly consistent with his Report of Physician and his narrative psychiatric report.

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Respondent, however, argues in his brief that Dr. Kenner’s testimony was insufficient to
establish that he was a disabled person on November 14, 2007. He also asserts that Dr.
Kenner’s testimony “lacks all indicia of empirical or scientific basis and amounts to
conclusory statements supported by bald speculation.” Respondent also places emphasis on
the fact that Dr. Kenner did not have actual knowledge of Respondent’s drug use because it
“was not supported by toxicological verification”; that Dr. Kenner merely “thought
[Respondent] was abusing a ‘stimulant.’”

While Dr. Kenner did not have the benefit of a toxicological test, or an admission by
Respondent of his crack cocaine addiction,7 Dr. Kenner’s professional opinion does not lack
a proper foundation. As Dr. Kenner explained, he was not speculating when he testified that
Respondent was addicted to a “stimulant,” and his dependency was “so profound that he
should be detoxified in an inpatient hospital setting.”

We have dealt with similar challenges to the sufficiency of the evidence in a
conservatorship proceeding when the doctor had not performed a thorough office
examination or drug tests. See, e.g., In re Conservatorship of Jewell, No. M2008-02621-
COA-R3-CV, 2009 WL 4573420 (Tenn. Ct. App. Dec. 4, 2009). In Jewell, the respondent,
named Lisa, contended that Tennessee Code Annotated § 34-3-104(7) requires the petitioner
to include a “sworn medical examination report,” and that the affidavits of two physicians,
Drs. Elam and Fishel, relied upon by the petitioner were deficient because they did not
perform a “real” examination of her. Id. at *12. She noted that the physicians had not
examined her in their offices, that they merely “observed her for only ten minutes, in a
parking lot rather than a clinical setting, where they did not perform psychological tests, but
obtained information from Lisa’s father.” Id. We found her argument unpersuasive
explaining:

Dr. Elam testified that it was routine for a doctor trying to diagnose a patient’s
mental status to confer with family members about their observations of the
patient’s behavior. Dr. Fishel also testified that it was normal protocol to meet
with a patient’s family. Both physicians also contacted Dr. Lavie prior to

7
Although the following evidence was not available on November 14, 2007, we note that David R.
Street, M. D., Board Certified in Forensic Psychiatry, and James R. Walker, Ph.D., Board Certified in
Forensic Psychology and Neuropsychology, conducted an extensive psychiatric evaluation of Respondent
in their offices on May 15, 2010, which was admitted into evidence without objection at the hearing on May
24, 2010. In their joint report, they state the diagnosis of Respondent was “Cocaine dependence, in early full
remission,” “Alcohol dependence in early full remission,” “Cannabis abuse,” and “Depressive disorder,
NOS.” Further, the report of Dr. Evelyn Frye, Ph.D., a licensed psychologist who had evaluated Respondent,
was admitted into evidence at the hearing without objection. In her report, Dr. Frye also diagnosed
Respondent with cocaine and alcohol dependence as well as cannabis abuse.

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 submitting their affidavits. Dr. Elam testified that Lisa’s mental condition was
readily apparent and that she was obviously delirious when he saw her. He said
he had also seen her on numerous other occasions in the past when she was
psychotic. Even Dr. Lavie testified that a trained clinician could see someone
for less than ten minutes and determine that he or she had a psychiatric or
psychological need for a guardian if the patient was floridly psychotic or out
of his or her mind. He further testified that it was not unusual for an internist,
such as Dr. Elam, to make that type of decision because internists make
decisions regarding competency and observe floridly psychotic patients when
making rounds in a hospital.

Id. (emphasis added). After considering all the evidence and relevant circumstances in the
Jewell case, the court found that “the examinations by Drs. Elam and Fishel were not so
deficient as to require dismissal of the petition for conservatorship.” Id.

Whether the stimulant Respondent was addicted to at the time was crack cocaine, or
another highly addictive and life-threatening stimulant, is immaterial. As Dr. Kenner clearly
and convincingly established on November 14, 2007, Respondent was in a life-threatening
situation from which he could not extract himself, he had “lost any ability to rehabilitate
himself by pulling on his own bootstraps,” and he “was going to use [the stimulant he was
addicted to] until either his body gives out or his money gives out, one or the other.”

As noted earlier, the statutory definition of a “disabled person” for purposes of a
conservatorship proceeding is someone 18 years of age or older “in need of partial or full
supervision, protection and assistance by reason of mental illness, physical illness or injury,
developmental disability or other mental or physical incapacity.” Tenn. Code Ann. §
34-1-101(7). In determining the need for a conservatorship, the pivotal question is not merely
the diagnosis or, in this case, the specific drug being abused, but “the effect that the illness,
injury, or condition has had on the capacity of the person for whom a conservator is sought.”
Groves, 109 S.W.3d at 331 (emphasis added). The condition at issue here is Respondent’s
addiction to a drug that is threatening Respondent’s life and, as Dr. Keener explained in his
report and at the hearing, the threat was not remote.

On November 14, 2007, the trial court found that the evidence clearly and
convincingly established that Respondent was a disabled person and in need of assistance
from the court. “When a trial court has seen and heard witnesses, especially where issues of
credibility and weight of oral testimony are involved, considerable deference must be
accorded to the trial court’s factual findings.” In re Hutcheson, No. E2008-00737-COA-R3-
CV, 2009 WL 981702, at *22 (Tenn. Ct. App. April 13, 2009) (citing Seals v.
England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn.1999) (quoting Collins

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v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn.1998))). This is because, unlike the trial court,
we do not have the opportunity to observe the witnesses and make credibility determinations.

The evidence before the trial court on November 14, 2007, clearly and convincingly
established that Respondent was a disabled person in need of the court’s supervision,
protection and assistance until Respondent addressed his debilitating and life-threatening
addiction. Accordingly, the trial court did not err by appointing a conservator for
Respondent’s person and property on November 14, 2007.

II.
C OSTS OF THE C ONSERVATORSHIP P ROCEEDINGS

We now turn our attention the Respondent’s assertion that the trial court erred in
assessing the costs of the conservatorship proceedings against him and not Petitioner. The
basis of this argument is that only a “temporary conservator” was appointed and the Petition
to appoint a conservator was dismissed prior to the appointment of a “permanent
conservator.” Based upon this fact, Respondent contends, the trial court erred in not assessing
the costs of the proceedings against Petitioner pursuant to Tennessee Code Annotated § 34-1-
114(a). We find no merit to this argument.

Respondent contends the trial court erroneously construed Tennessee Code Annotated
§ 34-1-114(a) when it assessed the costs of the conservatorship proceedings against him.
Thus, the issue constitutes a question of statutory interpretation, which is a question of law
that we review under the de novo standard with no presumption of correctness. Sullivan v.
Edwards Oil Co., 141 S.W.3d 544, 547 (Tenn. 2004) (citing Wallace v. State, 121 S.W.3d
652, 656 (Tenn. 2003)); see also Trout, 2009 WL 3321337, at *11. To ascertain and give
effect to “the intention and purpose of the legislature is a basic rule of statutory
construction.” Faust v. Metro. Gov’t of Nashville, 206 S.W.3d 475, 490 (Tenn. 2006). The
courts ascertain legislative intent “from the natural and ordinary meaning of the language
used, without forced or subtle construction that would limit or extend the meaning of the
language.” Id. If the language in a statute is unambiguous, we must apply the plain meaning
with the presumption that “the legislature says in a statute what it means and means in a
statute what it says.” Kyle v. Williams, 98 S.W.3d 661, 664 (Tenn. 2003).

The statute at issue, Tennessee Code Annotated § 34-1-114(a), reads:

If a fiduciary is appointed, the costs of the [conservatorship] 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

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 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.

(Emphasis added).

The appointment of a fiduciary, in this case “a conservator,” becomes effective “[o]n
the entry of an order appointing the fiduciary, the administration of the oath . . . and the
posting of any required bond.”8 Tenn. Code Ann. § 34-1-109(a). Evidence of the appointment
of the fiduciary in a conservatorship proceeding is the issuance of letters of conservatorship.
Id. Letters of Conservatorship were issued to Petitioner; thus, the appointment of Petitioner
as conservator for Respondent became effective at that time.

As we observed in Jewell, wherein this court cited to In re Conservatorship of Groves,
109 S.W.3d at 331:

[I]n determining the appropriate nature and extent of the duties of the
conservator, [the trial court] must decide such issues as whether the person is
fully or partially disabled, whether the incapacity is temporary or permanent,
and whether the person requires full or part-time supervision, protection, or
assistance. If the court concludes that supervision is necessary, it must then
“enter an order appointing a conservator and must specifically ‘[e]numerate
the powers removed from the respondent and vested in the conservator.’” Id.
(citing Tenn. Code Ann. § 34-3-107(2).” However, [Groves] did not say that
the trial court must also specifically state in its order all of its conclusions
regarding whether the disability was full or partial, temporary or permanent,
etc. Tennessee Code Annotated section 34-3-107 lists specific requirements for
orders appointing conservators, stating that the order must “Name the
conservator or conservators . . . Enumerate the powers removed from the
respondent and vested in the conservator. . . . State any other authority or
direction as the court determines is appropriate to properly care for the person
or property of the disabled person,” and include other specific provisions if the
conservator will have the right to manage property. However, it does not

8
Subsection (b) of Tennessee Code Annotated § 34-1-109 states: “Before delivering the letters of
guardianship or conservatorship, the clerk shall administer to the fiduciary an oath for the faithful
performance of the fiduciary’s duties.”

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 require the order to specify whether the person’s disability is full or partial,
temporary or permanent.

Jewell, 2009 WL 4573420, at *13.

The court in Jewell rejected the respondent’s argument that the trial court erred by
failing to specify “whether a respondent’s disability was full or partial.” After noting that the
respondent had not cited any authority to support her assertion, the Court stated that contrary
to the respondent’s assertion, “the cases we have encountered only state whether the
respondent was disabled and whether he or she was in need of the court’s assistance.” Id.
(citing Hutcheson, 2009 WL 981702, at *22; In re Conservatorship of Davenport, No.
E2004-01505-COA-R3-CV, 2005 WL 3533299, at *8 (Tenn. Ct. App. Dec. 27, 2005);
Crumley v. Purdue, No. 01-A-01-9704-CH00168, 1997 WL 691532, at *3 (Tenn. Ct. App.
Nov. 7, 1997)). The respondent in Jewell, whose name is Lisa, also asserted that the trial
court erred by failing to expressly state that the appointment of the conservator was
temporary. The court also rejected this argument, explaining:

Regarding the “temporary or permanent” issue, Lisa’s attorney ad litem
requested, at the conclusion of the hearing, that the trial court include a
provision in any order it entered stating that the case could be reviewed in nine
months or one year in order to reevaluate Lisa’s status. The court’s order
simply appointed Mother and Father co-conservators without including any
provision regarding when the order could be reviewed. [footnote omitted]
Tennessee Code Annotated section 34-3-108(a) allows a disabled person, or
any interested person on the disabled person’s behalf, to petition the court at
any time for termination or modification of the conservatorship. The disabled
person may communicate his or her request to the court by any means,
including oral communication or informal letter. Tenn. Code Ann. §
34-3-108(b). The court must conduct a hearing upon receipt of such a petition,
and the conservator may be discharged or have its duties modified if the court
determines that the respondent is no longer disabled, or that it is in the best
interest of the respondent that the conservatorship be terminated. Tenn.Code
Ann. § 34-3-108(a), (c). The preponderance of the evidence standard applies
to termination of conservatorship proceedings. In re Maxwell, No.
M2002-01654-COA-R3-CV, 2003 WL 22209378, at *2, n.1 (Tenn. Ct. App.
Sept. 25, 2003). Due to the availability of this statutory procedure, Lisa was
not prejudiced by the trial court’s failure to include the requested “review
provision” in its order appointing the co-conservators.

Id. at *14.

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 As was the case in Jewell, we find no authority that supports Respondent’s assertion
that the appointment of a “Temporary Conservator” does not constitute the appointment of
a “fiduciary,” or that only the appointment of a permanent conservator constitutes the
appointment of a fiduciary, as contemplated in Tennessee Code Annotated § 34-1-114(a),
which states: “If a fiduciary is appointed, the costs of the [conservatorship] proceedings . .
. shall be charged against the property of the respondent.” What is significant is that a
fiduciary/conservator was appointed – regardless of the designation of temporary, permanent,
partial or full – and the fiduciary/conservator faithfully executed the duties and
responsibilities entrusted to him. See Graves v. Philpot, 1995 WL 351012, at *1-2 (Tenn. Ct.
App. June 9, 1995) (holding that the appointment of a temporary conservator for a
95-year-old lady was deemed proper as well as “continuing, or re-instating” the appointment
of the temporary conservator).

III.
D ISCRETIONARY C OSTS

Respondent’s final issue is that the court erred in finding that Petitioner was the
“prevailing party” and, upon that erroneous finding, erred in granting Petitioner’s Tennessee
Rule of Civil Procedure 54.04(2) motion for discretionary costs.

A decision whether to grant Tenn. R. Civ. P. 54.04(2) discretionary costs lies, as the
name implies, within the discretion of the trial court. Duran v. Hyundai Motor America, Inc.,
271 S.W.3d 178, 215. Thus, the appellate court reviews such a decision under an abuse of
discretion standard. Id.

Under the abuse of discretion standard, a trial court’s ruling “will be upheld
so long as reasonable minds can disagree as to the propriety of the decision
made.” A trial court abuses its discretion only when it “applies an incorrect
legal standard, or reaches a decision which is against logic or reasoning or that
causes an injustice to the party complaining.” The abuse of discretion standard
does not permit the appellate court to substitute its judgment for that of the
trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (internal citations omitted).

As we have already addressed in this opinion, there was clear and convincing
evidence to support the trial court’s 2007 appointment of Petitioner as the conservator for
Respondent. Fortunately Respondent’s health improved dramatically during the pendency
of this conservatorship proceeding, and based upon the trial court’s finding in June 2010,
Respondent was no longer a disabled person and the conservatorship could be terminated.

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Respondent’s protestations to the contrary notwithstanding, it is undisputed that the trial
court found Respondent was a disabled person in need of assistance, protection, and
supervision of the court on November 14, 2007, and for the next thirty-one months. The fact
that the conservatorship was subsequently terminated does not establish that a conservator
was never appointed. It stands for the obvious fact that Respondent was a disabled person
in 2007, for which a conservator was appropriately appointed, and fortunately he addressed,
hopefully once and for all, his life-threatening crack cocaine addiction, thereby rendering the
conservatorship temporary instead of permanent. Therefore, Petitioner was the prevailing
party and the trial court did not abuse its discretion by awarding discretionary costs against
Respondent as Tennessee Rule of Civil Procedure 54.04(2) expressly permits. Accordingly,
we affirm the award of discretionary costs against Respondent.

I N C ONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the appellant, John Daniel Tate.

______________________________
FRANK G. CLEMENT, JR., JUDGE

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