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In re Conservatorship of Campbell

Court of Appeals of Tennessee, Nashville

November 3, 2017

In re CONSERVATORSHIP OF GLEN TRAVIS CAMPBELL

          Session Date: August 24, 2017

         Appeal from the Probate Court for Davidson County No. 15P-53 David Randall Kennedy, Judge

         This appeal involves attorney's fees awarded during the course of a conservatorship. Upon a petition filed by the ward's eldest two children, a response filed by the ward's spouse, the report of a court-appointed guardian ad litem, and a mediated agreement, the probate court entered an order establishing a conservatorship for the ward and appointing the ward's spouse as conservator on May 11, 2015. During the course of the conservatorship, the trial court found in three instances at issue that the conservator was entitled to attorney's fees in disputes involving various requests to release information concerning the ward in a public forum. The trial court subsequently denied a motion to set aside, vacate, and stay enforcement filed by the original petitioners, who have appealed to this Court. Having determined that the original petitioners were given insufficient notice of two of the three hearings resulting in the assessment of attorney's fees and costs against them, we vacate the trial court's respective orders awarding attorney's fees and costs in those two instances. We affirm the trial court's judgment in all other respects at issue on appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed in Part, Vacated in Part; Case Remanded

          R. Horton Frank and Katlin A. Ryan, Nashville, Tennessee, for the appellants, Deborah Campbell-Cloyd and William Travis Campbell.

          Carolyn W. Schott and William L. Harbison, Nashville, Tennessee, for the appellee, Kimberly Campbell.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Richard H. Dinkins, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The conservatorship at the center of this appeal was established on behalf of entertainer Glen Travis Campbell ("Mr. Campbell"), who was approximately eighty years old and suffering from late-stage Alzheimer's disease when the instant appeal process began.[1] The original petitioners, Debby Campbell-Cloyd ("Ms. Campbell-Cloyd") and William Travis Campbell ("Travis Campbell"), are the two eldest of Mr. Campbell's eight children. Ms. Campbell-Cloyd and Travis Campbell (collectively, "Petitioners") filed a petition for letters of conservatorship on January 13, 2015, averring that Mr. Campbell was in need of a conservator and requesting that Ms. Campbell-Cloyd be appointed to serve in that capacity. On the same day, the trial court entered an "Order to File Pleadings Under Seal, " directing that all pleadings and orders in this matter would be filed under seal. On January 15, 2015, the trial court appointed attorney Stacey Schlitz as Mr. Campbell's guardian ad litem. Ms. Schlitz is not participating in this appeal.

         Mr. Campbell's wife, Kimberly Campbell, filed a response to the petition on February 18, 2015, requesting that she be named conservator. Mr. Campbell and Kimberly Campbell were married in October 1982, and she is the mother of Mr. Campbell's three youngest children, Nicklaus Caledonia ("Cal") Campbell, Shannon Campbell, and Ashley Campbell.[2] Upon the trial court's order, the parties participated in mediation on April 21, 2015.

         Following a status conference and announcement of the parties' mediated settlement as to certain issues, the trial court entered an order on May 11, 2015, finding that Mr. Campbell was in need of a conservator of his person and property and appointing Kimberly Campbell as his conservator ("Conservator"). The court named Ashley Campbell as standby fiduciary and Shannon Campbell and Cal Campbell as alternate standby fiduciaries. The court concomitantly entered an "Order Incorporating Settlement Terms, " finding that "the parties have come to certain agreements with respect to discrete claims in this matter" and setting forth the following in pertinent part:

          IT IS THEREFORE ORDERED as follows:

1. Kimberly Campbell will be appointed conservator of the person and property of Glen Campbell through a companion order of this Court.
2. Each party is responsible for his or her own attorney fees.
3. Ms. Campbell-Cloyd and Travis Campbell are responsible jointly and severally for the fees and expenses of the guardian ad litem, Stacey Schlitz.
4. Ms. Campbell-Cloyd and Travis Campbell are responsible jointly and severally for the court costs in this matter through the date of this Order.
5. Visits to Glen Campbell by Ms. Campbell-Cloyd and Travis Campbell will occur as provided by the terms of and subject to the conditions of the Definitive Settlement Agreement between Ms. Campbell-Cloyd, Travis Campbell and Kimberly Campbell. Disputes with respect to visitation will be submitted for resolution by binding mediation . . . .

         Upon Petitioners' motion requesting instructions concerning the restrictions placed on the sealed file, the trial court entered an "Order Regarding Restrictions on Sealed File" on May 15, 2015, directing the following in relevant part:

[D]ue to this matter being filed under seal, the parties and all listed persons on the Certificate of Service are restricted from engaging in communication with any media or news source regarding the specific aspects of this case such as medical records of [Mr. Campbell], and financial records of [Mr. Campbell], and the location of [Mr. Campbell]. The parties shall be allowed to talk to family members and other persons of interest for the purpose of gathering information and evidence related to the allegations contained in the pleadings.

         Petitioners' former counsel, Jennifer Sheppard, filed a motion for leave to withdraw, which the trial court granted in an order entered May 29, 2015. Petitioners, particularly Travis Campbell, subsequently filed various pleadings questioning the validity of the settlement agreement, but the order incorporating the agreement remained in effect. The settlement agreement is not at issue on appeal.

          At issue in this appeal are provisions concerning attorney's fees awarded in six orders entered by the trial court over the course of the conservatorship. The six orders may be best described as three sets of two orders each, with the first order in each set containing the trial court's finding that Conservator was entitled to attorney's fees and costs assessed against Petitioners and the second order in each set containing the corresponding monetary award of attorney's fees and costs. The disputes underlying all three sets of orders involved various requests to release information in a public forum.

         A. Order Set One

         On February 1, 2016, Conservator filed an "Emergency Motion for Permission to Release Limited Information to Tennessee General Assembly, " requesting that she be allowed to make a statement concerning Mr. Campbell and the conservatorship in response to a presentation made by Ms. Campbell-Cloyd on the Tennessee Senate floor on January 27, 2016. Ms. Campbell-Cloyd had appeared with entertainer Tanya Tucker and legislators in support of proposed legislation regarding conservatorships. In her motion, Conservator averred that Ms. Campbell-Cloyd had revealed information from the trial court's sealed file and had made inaccurate statements concerning her ability to visit Mr. Campbell under the mediated agreement. The motion included notice of a hearing scheduled for February 2, 2016. Conservator's counsel attached a certificate of service, certifying that a copy of the notice had been sent via United States mail and electronic mail to Petitioners. The certificate of service included individual electronic mail addresses, as well as physical addresses, for Ms. Campbell-Cloyd and Travis Campbell, respectively.

         On February 2, 2016, Petitioners, at the time proceeding pro se, filed a response to the motion via electronic mail, asserting, inter alia, that they resided outside Tennessee and would not be able to appear at the hearing. Petitioners stated objections to the motion and noted that they would be in Nashville on February 10 and 11, 2016, and could appear in person before the trial court at that time.

         Upon Conservator's motion, the trial court entered an order on February 2, 2016, granting Conservator authorization to release limited information. The order did not reference Petitioners' response filed the same day. The court directed specifically:

[Conservator], or a representative on her behalf, may release limited information regarding the matters under seal in this case for the sole purpose of clarifying statements made to the Tennessee General Assembly by [Ms. Campbell-Cloyd] on January 27, 2016. The information to be released shall be limited to (1) facts that explain that the visitation arrangements and guidelines in this conservatorship matter arose from a negotiated agreement entered into by [Ms. Campbell-Cloyd] and Travis Campbell in the course of mediation; and (2) clarification that the visitation frequency described by [Ms. Campbell-Cloyd] on January 27, 2016 is the minimum visitation allowed rather than maximum.
The Court also orders that the attorney fees and costs incurred by the conservatorship in bringing the present motion and carrying out this order shall be taxed to [Petitioners] jointly and severally.

(Emphasis in original.)

         On March 2, 2016, Conservator's counsel filed an "Affidavit of Time Detailing Costs and Fees Awarded on February 2, 2016, " delineating a total of 34.5 hours expended by three attorneys and two paralegals at varying rates for a total of $11, 976.00 in fees for work supporting Conservator's motion from January 27, 2016, through February 9, 2016. The affidavit included a certificate of service, certifying that Conservator's counsel had sent the affidavit via United States mail to Petitioners individually. In an order entered March 15, 2016, upon Conservator's motion for attorney's fees and her counsel's affidavit, the trial court awarded attorney's fees and expenses in the amount of $11, 976.00 to Conservator's counsel "for their services rendered in this matter for the period from January 27, 2016 through February 9, 2016, & the foregoing amount is rendered as a money judgment against [Petitioners], jointly and severally."

         B. Order Set Two

         On February 10, 2016, Petitioners filed an "Emergency Motion to Unseal Entire File, " "to allow [Petitioners] to have the ability to respond to certain claims made by [Conservator] and to avoid the necessity of [filing] similar emergency motions in the future along with the costs that are incurred therein." Although the motion was filed on behalf of both Petitioners, it was signed only by Travis Campbell, acting pro se. Ms. Campbell-Cloyd did execute a statement averring that Conservator had denied her visitation with Mr. Campbell beyond twice monthly, and this statement was filed concomitantly with the instant motion.[3] Petitioners asserted that because Mr. Campbell had been moved to a different location than the location identified in the sealed record, the purpose of concealing Mr. Campbell's location from the public was no longer relevant. They further asserted that it was in the best interests of "all parties involved" to have the full record made public rather than a portion that could prove misleading. The motion included a certificate of service, stating that a copy had been "served by email, fax, and/or U.S. mail" to Conservator's counsel, among other parties involved. Conservator filed a response objecting to Petitioners' emergency motion on February 11, 2016.

         The trial court conducted a hearing regarding Petitioners' emergency motion on February 12, 2016. Upon the pleadings and arguments of Travis Campbell, acting pro se, and Conservator's counsel, the court entered an order on March 4, 2016, finding no basis for unsealing the court file and denying the motion. The court awarded to Conservator "a judgment for costs and fees incurred by the conservatorship in defending against the instant motion . . . ."

         On March 2, 2016, Conservator's counsel filed an "Affidavit of Time Detailing Costs and Fees Awarded on February 12, 2016, " delineating a total of 12.3 hours expended by three attorneys at varying rates for a total of $4, 391.00 in fees for work defending against Petitioners' motion from February 10, 2016, through February 12, 2016. The affidavit included a certificate of service, certifying that Conservator's counsel had sent the affidavit via United States mail to Petitioners individually. In an order entered March 15, 2016, upon Conservator's motion for attorney's fees and her counsel's affidavit, the trial court awarded attorney's fees and expenses in the amount of $4, 391.00 to Conservator's counsel "for their services rendered in this matter for the period from February 10, 2016 through February 12, 2016, " and taxing the fees to Petitioners, "jointly and severally and reduced to a money judgment."

         C. Order Set Three

         On February 25, 2016, Conservator filed an "Emergency Motion for Permission to Release Limited Information to the National Enquirer and Other Media, " requesting that she be allowed to "provide an accurate response to the National Enquirer and other media regarding false accusations of elder abuse, financial mismanagement by [Conservator], and a pending FBI investigation against [Conservator]" (emphasis in original). Conservator averred that an editor from the National Enquirer had contacted her requesting a statement in response to information provided to the publication by Travis Campbell. Conservator alleged: "By releasing these false statements to the National Enquirer and additionally by nondisclosure of certain aspects of the matters under seal, Travis Campbell has provided misleading and inaccurate information regarding [Mr. Campbell] and the Conservatorship." Conservator attached a proposed statement to be released to the media. The motion included notice of a hearing scheduled for February 26, 2016. Conservator's counsel attached a certificate of service, certifying that a copy of the notice had been sent via United States mail and electronic mail to Petitioners. The certificate of service again included individual electronic mail addresses, as well as physical addresses, for Ms. Campbell-Cloyd and Travis Campbell, respectively.

         Acting without benefit of counsel, Travis Campbell filed a response on February 26, 2016. Maintaining that it was "an impossibility" for him to appear before the court in person on that day, Travis Campbell denied allegations that he had revealed information in violation of the sealed record in this case or that he had spoken directly with any representative from the National Enquirer. He insisted that information obtained by the National Enquirer was available through other sources, including the information authorized to be released by the trial court in its February 2, 2016 order, Conservator's Facebook ...


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