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In re Conservatorship of Starnes

Court of Appeals of Tennessee, Jackson

December 10, 2014

IN RE CONSERVATORSHIP OF MICHAEL S. STARNES

Session November 14, 2014

Appeal from the Probate Court for Shelby County No. D14915 Kathleen N. Gomes, Judge

Richard Glassman and Jonathan Stokes, Memphis, Tennessee, for the appellant, Mary Barker Starnes.

John J. Heflin and John Marshall Jones, Memphis, Tennessee, for the appellee, Michael S. Starnes

Kenny Armstrong, J., delivered the opinion of the Court in which Arnold B. Goldin, J., and Brandon O. Gibson, J. joined

OPINION

KENNY ARMSTRONG, JUDGE

I. Background

Appellee Michael S. Starnes is approximately sixty-nine years old. He is the founder of the trucking company, M.S. Carriers, Inc., which he sold some years ago at a substantial profit. In January 2006, Mr. Starnes suffered a massive and near-fatal stroke, which left him with serious brain injury. As a result, Mr. Starnes is allegedly unable to live autonomously, or to execute decisions without the assistance of others. Mr. Starnes also suffers from Aphasia, a speech impediment that limits his ability to communicate verbally. His verbal communications are limited to a few learned responses and the vocalization of the word "one, " with a variety of inflections. Approximately six months before the stroke, Mr. Starnes married his second wife, Dr. Laura Starnes, whom he had only known for one year prior to their marriage. Mr. Starnes has one child from his first marriage, Appellant Mary Barker Starnes. The relationship between Mary Barker Starnes and Dr. Laura Starnes is acrimonious at best. Dr. Starnes has allegedly thwarted attempts by Appellant, family and friends of Mr. Starnes to communicate with him since the stroke.

On October 5, 2012, Mary Barker Starnes filed the present action for the appointment of a conservator over Mr. Starnes. According to the affidavits filed in support of her petition, Dr. Starnes has allegedly failed to act in Mr. Starnes' best interest. She has relocated with him to California and has allegedly cut off all communication with Mr. Starnes' family, including his parents and his daughter.

On October 31, 2012, Mr. Starnes filed a motion to dismiss and strike the petition for appointment of a conservator. Appellant opposed the motion to dismiss, which was scheduled for hearing on January 16, 2013. At that hearing, the court declined ruling on the motion to dismiss, pending appointment of a guardian ad litem to represent Mr. Starnes. On January 25, 2013, the court appointed attorney David E. Caywood as Mr. Starnes' guardian ad litem. Mr. Caywood proceeded to conduct discovery, meeting with the interested parties, including Mr. Starnes and Dr. Starnes. On March 22, 2013, Mr. Caywood filed his report with the trial court. Therein, he opined that "Michael Starnes does not need an Attorney Ad Litem to represent him and is not a disabled person as defined by Tennessee law."

Mary Barker Starnes filed an objection to Mr. Caywood's report and moved to appoint a new guardian ad litem, or in the alternative, to have Mr. Starnes appear in court. In response to Mary Barker Starnes' objection and motion, Mr. Starnes renewed his motion to dismiss on March 22, 2013. Specifically, Mr. Starnes alleged that the petition should be dismissed because it failed to: (1) comply with the Tennessee Code Annotated Section 34-3-104 requirement that all petitions seeking appointment of a conservator include a sworn medical examination; (2) include legally sufficient grounds for requesting a medical examination; and (3) include legally sufficient grounds for appointing a guardian ad litem because Mr. Starnes was already represented by counsel. Mary Barker Starnes opposed the renewed motion to dismiss.

The renewed motion to dismiss was set for hearing on June 26, 2013; however, on that day, the trial court held an in-chambers conference with counsel for the parties and orally held that, pursuant to Tennessee Code Annotated Section 34-3-105, Mr. Starnes would be required to submit to an in-person examination by a physician. Before the trial court entered an order on its oral ruling, Mr. Starnes filed an objection to the proposed order requiring additional medical examination, arguing that such examination would be a severe detriment to his health. Mr. Starnes also requested a ruling on his renewed motion to dismiss. The parties returned to court on July 18, 2013 for a hearing on Mr. Starnes' objection and motion to dismiss. The trial court ultimately held that instead of an in-person examination of Mr. Starnes, an independent physician could review his medical records to determine whether Mr. Starnes was capable of undergoing an independent medical examination.

Following a lengthy search for a qualified physician to review Mr. Starnes' medical records, the court chose Dr. Emmel B. Golden, Jr. Dr. Golden issued his written report on September 4, 2013. Dr. Golden opined that Mr. Starnes "is capable of making decisions directing his own affairs." Appellant alleges that Dr. Golden's report is not supported by an accompanying affidavit, and is "rife with hearsay statements, " on which the trial court erroneously relied.

On September 26, 2013, the trial court held a hearing on Mr. Starnes' renewed motion to dismiss. On October 30, 2013, the trial court issued its memorandum opinion and order, in which it dismissed Mary Barker Starnes' petition to appoint a conservator over Michael S. Starnes. In its order, the trial court cites the relevant law on Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss, and then concludes that Mary Barker Starnes' petition "is legally sufficient and adequately sets forth the requisite requirements for a petition to appoint a conservator." The court then acknowledges that it considered evidence outside the original petition so as to convert the Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss to a motion for summary judgment. See, e.g., Souder v. Health Partners, Inc., 997 S.W.2d 140, 144 (Tenn. Ct. App. 1998) (citing 3 Nancy F. MacLean and Bradley A. MacLean, Tennessee Practice §12.12 p. 191 (2d ed. 1989)) ("When matters outside the pleadings are presented to and considered by the court, the motion [to dismiss] is treated as a motion for summary judgment under [Tennessee] Rule [of Civil Procedure] 56. . . ."). Specifically, the trial court stated that it considered "a copy of a letter from Dr. Biskar stating that [Mr. Starnes] does not need a conservatorship, the affidavits of Dr. Biskars, Dr. Pearlson and Tim Mencio." In addition, the court acknowledged that it considered both the guardian ad litem's report and Dr. Golden's report.

After considering this evidence, the trial court, in its October 30, 2013 order, granted summary judgment in favor of Mr. Starnes, finding that "there remain no genuine issues as to ...


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