IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 4, 2016
IN RE WALTER PETERSON, JR.
Appeal from the Chancery Court for Hamilton County
No. 15-G-007 Pamela A. Fleenor, Chancellor
___________________________________
No. E2015-01211-COA-R3-CV-FILED-NOVEMBER 15, 2016
___________________________________
Wife challenges the trial court‟s decision authorizing the Department of Human Services
to take her husband into protective custody pursuant to the Adult Protection Act.
Because, after the trial court‟s decision, the adult taken into protective custody was
released from DHS custody and later died, we have determined that this appeal is moot.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ANDY D. BENNETT, J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Pamela R. O‟Dwyer, Chattanooga, Tennessee, for the appellant, Sheila Peterson.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor
General; and Kathryn A. Baker, Assistant Attorney General, Nashville, Tennessee, for
the appellee, Tennessee Department of Human Services.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2015, the Department of Human Services (“DHS”) applied for and
was granted a search warrant to enter the home of Dr. Walter Peterson, Jr.1 The
application alleged, in part, that DHS had received a report that Dr. Peterson was being
abused or neglected by his wife and son. DHS and law enforcement officers entered the
Peterson home on January 23, 2015. According to DHS, Dr. Peterson consented to be
removed from the home to receive medical care; he was then hospitalized.
1
Although the record in this case includes volumes of testimony, our resolution of this appeal
does not require that we give a detailed accounting of all of the facts. Thus, we will provide only a
summary of the facts and the procedural history of the case.
On January 29, 2015, DHS petitioned the chancery court for authorization to
consent to protective services for Dr. Peterson under the Tennessee Adult Protection Act,
Tenn. Code Ann. §§ 71-6-101–124. The same day, the chancery court ordered that,
pending a final hearing, DHS would have protective custody of Dr. Peterson. The court
also appointed a temporary financial guardian, an attorney ad litem, and a guardian ad
litem. Dr. Peterson‟s wife, Sheila Peterson, opposed the grant of protective custody and
moved for the dismissal of the action and the immediate release of Dr. Peterson. Dr.
Peterson was subsequently moved to a rehabilitation facility.
After a five-day trial, the court entered an order on March 12, 2015 in which it
ruled that Dr. Peterson lacked the capacity to consent to protective services, was in
imminent danger, and was “in need of protective services for purposes of medical
treatment and to prevent neglect.” The court appointed a temporary guardian for
purposes of consenting to protective services as well as a temporary guardian for
financial purposes. On May 26, 2015, the court entered an order ruling on several
motions, including Mrs. Peterson‟s motion to alter or amend the March 12, 2015 order
authorizing the consent to protective services and appointment of a temporary financial
guardian for Dr. Peterson. In its final order, the chancery court reiterated its conclusion
that Dr. Peterson lacked capacity to consent, was in imminent danger, and needed
protective services. Mrs. Peterson appealed.
Based upon medical evidence presented at a hearing on July 9, 2015, the chancery
court found that it was safe and in Dr. Peterson‟s best interest for him to return home
under the care of his wife. In an order dated July 10, 2015, the court decreed that Dr.
Peterson be discharged from the rehabilitation facility, that DHS be responsible for
monitoring his care on a weekly basis, and that he remain under the protection of the
court. On September 9, 2015, the chancery court terminated the protective order,
guardianship, and home monitoring of Dr. Peterson. On July 28, 2016, Dr. Peterson
died.2
ISSUES ON APPEAL
Mrs. Peterson, the appellant, raises the following issues on appeal:
(1) Whether the trial court‟s failure to apply the legal requirements of the
Adult Abuse Statute, which requires that the court impose the “least
restrictive” means available for protecting the life of the adult, was legal
error or an abuse of discretion.
(2) Whether the trial court erred in the application of the Adult Abuse
2
This Court learned of Dr. Peterson‟s death as a result of a motion to consider post-judgment
facts filed by DHS pursuant to Tenn. R. App. P. 14 in September 2016. The motion was unopposed, and
we hereby grant the motion.
-2-
Statute, Tenn. Code Ann. § 71-6-107, which gives the respondent the
right to participate in the process, when it quashed Sheila Peterson‟s
subpoena for respondent‟s participation in person or to give testimony
by deposition.
(3) Whether the trial court abused its discretion by the denial of access to
medical evidence necessary to defend against the conservatorship when
it quashed the appellant‟s subpoena for Dr. Peterson‟s medical records
to Memorial Hospital and to NHC‟s Dunlap-Sequatchie Nursing Home.
(4) Whether the trial court abused its discretion by allowing a petition for
protective order against a non-party to be heard in the conservatorship
matter resulting in a delay of Dr. Peterson‟s release.
DHS argues that these issues are moot in light of events that occurred after the chancery
court entered its order.
ANALYSIS
We have determined that, in light of the nature of the relief sought and events that
have occurred since the order on appeal, the appeal is moot.
The determination of whether a case is moot presents a question of law. Alliance
for Native Am. Indian Rights in Tenn., Inc. v. Nicely, 182 S.W.3d 333, 338-39 (Tenn. Ct.
App. 2005). We review questions of law de novo with no presumption of correctness.
Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
The mootness doctrine is rooted in the idea that it is “„the province of a court . . .
to decide, not advise, and to settle rights, not to give abstract opinions.‟” Norma Faye
Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn. 2009)
(quoting State v. Wilson, 70 Tenn. 204, 210 (1879)). Thus, courts limit their role to
deciding “„legal controversies.‟” Id. (quoting White v. Kelton, 232 S.W. 668, 670 (Tenn.
1921)). A proceeding constitutes a legal controversy “when the disputed issue is real and
existing, and not theoretical or abstract, and when the dispute is between parties with real
and adverse interests.” Id. (citations omitted). A case will be considered moot if it “no
longer serves as a means to provide some sort of judicial relief to the prevailing party.”
Id. at 204. A case that no longer presents a current, live controversy has lost its
justiciability and is moot. McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App.
1994). Cases must remain justiciable throughout the entire course of the litigation,
including the appeal. Id.
Mrs. Peterson appeals from the March 12, 2005 order granting DHS protective
custody of Dr. Peterson, which became final upon entry of the May 26, 2005 order on the
motions to alter or amend. On appeal, she requests reversal of the March 12, 2005 order
granting DHS custody of Dr. Peterson and challenges the trial court‟s denial of her
-3-
subpoenaes to require Dr. Peterson to testify by deposition and to allow her to obtain
certain medical records.3 Subsequent to the filing of this appeal, Dr. Peterson was
released from the rehabilitation facility and went home to the care of his wife; later, the
court terminated DHS‟s protective custody. Dr. Peterson died in July 2016.
This appeal no longer serves as a means of providing relief to Mrs. Peterson. The
reversal of the order placing Dr. Peterson under the protective custody of DHS, and the
court‟s decisions regarding Dr. Peterson‟s deposition testimony and the subpoena of
certain evidence in the course of that proceeding, would have no practical effect at this
point in light of the fact that Dr. Peterson is deceased. Moreover, even if Mrs. Peterson
were to prevail, she would have no right to recover attorney fees and costs against DHS.
The State is immune from suit for monetary damages unless it explicitly abrogates or
waives its immunity. TENN. CONST. art. 1, § 17; Tenn. Code Ann. § 20-13-102(a). The
Adult Protection Act, Tenn. Code Ann. §§ 71-6-101–124, does not provide for an
exception to the State‟s immunity except for limited attorney fees if the adult in need of
protective services is indigent or if the complaint or the order of accounting was not
properly served. See Tenn. Code Ann. § 71-6-107(a)(4)(C)-(D), (6)(D); State Dep’t of
Human Servs. v. Stewart, No. M2000-00633-COA-R3-CV, 2001 WL 1262607, at *2
(Tenn. Ct. App. Oct. 22, 2001). The trial court expressly found that Dr. Peterson was not
indigent, and there is no assertion or evidence that DHS‟s petition or the order of
accounting was not properly served.
Because Mrs. Peterson‟s appeal does not serve as a means of providing any relief,
we hold that this appeal is moot. We therefore dismiss the appeal.4
3
We decline to address Mrs. Peterson‟s fourth issue as it involves events that occurred after the
final order on appeal was filed on May 26, 2015. The petition for a temporary restraining order and a
permanent injunction against Geoffrey Peterson (the Petersons‟ son), the matter about which Mrs.
Peterson complains, was not filed until July 30, 2015.
4
Mrs. Peterson filed a late reply brief in this matter. The appellee‟s brief was filed on September
15, 2016 and, pursuant to Tenn. R. App. P. 29(a), Mrs. Peterson had 14 days from the filing of this brief
to serve and file her reply brief. Mrs. Peterson‟s reply brief was not filed until October 21, 2015. On this
ground alone, we may decline to consider the reply brief. Moreover, in arguing that the appeal is not
moot, Mrs. Peterson raises issues that were not raised in her original brief. For example, she asserts,
without any authority or citation to the record, that “the State of Tennessee failed to protect the parties‟
marital estate by causing Dr. Peterson to be admitted as a private patient rather than by Medicare.” The
purpose of a reply brief is to “reply to the brief of the appellee.” TENN. R. APP. P. 27(c). A reply brief is
“not a vehicle for raising new issues.” Owens v. Owens, 241 S.W.3d 478, 499 (Tenn. Ct. App. 2007); see
also Artist Bldg. Partners v. Auto-Owners Mut. Ins. Co., 435 S.W.3d 202, 220 n.5 (Tenn. Ct. App. 2013).
For all of these reasons, we consider the issues in Mrs. Peterson‟s reply brief to be waived. See Artist
Bldg., 435 S.W.3d at 220 n.5.
-4-
CONCLUSION
The appeal is dismissed. Costs of appeal are assessed against the appellant, Sheila
Peterson, and execution may issue if necessary.
_________________________________
ANDY D. BENNETT, JUDGE
-5-