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In re Conservatorship of Stiefel

Court of Appeals of Tennessee, Jackson

November 3, 2017

IN RE CONSERVATORSHIP OF OTTO TILLMAN STIEFEL

          Session Date: September 19, 2017

         Appeal from the Probate Court for Shelby County No. PR-6516 Kathleen N. Gomes, Judge

         This is a conservatorship dispute. The trial court found that there was clear and convincing evidence that Appellant was in need of a conservator. We conclude that the evidence presented at trial was not clear and convincing as to whether Appellant was in need of a conservator. Because there is some question in the record, however, as to whether the parties reached an agreement to allow the appointment of a conservator, we vacate and remand this case to determine this issue. Reversed in part, vacated in part, and remanded.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Reversed in Part; Vacated in Part; and Remanded

          Donald Capparella and Elizabeth Sitgraves, Nashville, Tennessee, for the appellant, Otto T. Stiefel.

          Chasity Sharp Grice, Memphis, Tennessee, for the appellee, Cyle Woodhouse.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin and Kenny Armstrong, JJ., joined.

          MEMORANDUM OPINION [1]

          J. STEVEN STAFFORD, JUDGE

          FACTS

         This case arises from a conservatorship dispute between Appellee/Petitioner Cyle Woodhouse and his step-grandfather Appellant/Respondent Otto T. Stiefel.[2] On July 18, 2016, Mr. Woodhouse filed a petition for the appointment of permanent conservator over his step-grandfather. The petition alleged that Mr. Stiefel had been diagnosed with Alzeimer's and dementia but refused to be further examined. Although Mr. Stiefel was in good physical condition, the petition alleged that due to his diminishing mental capacity he could not manage his affairs. Mr. Woodhouse further requested that either The Aging Commission or another third party be appointed as conservator of Mr. Stiefel's estate. On the same day, Mr. Woodhouse filed an accompanying motion to order medical and psychological examination of Mr. Stiefel pursuant to Tennessee Code Annotated section 34-3-105(b).[3] Mr. Woodhouse suggested that the court appoint Dr. Robert Burns for the examination, as he was a well-known geriatric specialist.

         Just two days later, on July 20, 2016, Mr. Woodhouse filed his first amended complaint for the appointment of conservator of person and estate. In addition to the facts asserted in the original complaint, the amended complaint (1) identified Dr. William Stewart Jr. as Mr. Stiefel's treating physician, (2) requested that Dr. Stewart perform an examination of Mr. Stiefel, and (3) asked that Mr. Stiefel be moved to Quail Ridge Alzheimer's Special Care Center, a skilled nursing home, where Mr. Stiefel's wife resided.

         On August 11, 2016, an attorney filed a notice of appearance on behalf of Mr. Stiefel.[4] On August 12, 2016, Mr. Stiefel filed (1) answers to the petition and amended petition for conservatorship; (2) an affidavit of Mr. Stiefel's son, Otto P. Stiefel ("Son"); and (3) motions to dismiss both the petition and the motion to order a medical examination. In his answer, Mr. Stiefel denied all allegations relating to his alleged need for a conservator, denied that Dr. Stewart was his treating physician, and claimed that Mr. Woodhouse only wanted control of his finances to help Mrs. Diana Stiefel. Son's affidavit further disputed Mr. Woodhouse's allegations that Mr. Stiefel was in need of a conservator and also alleged that Mr. Woodhouse's true motive was to gain control of his assets for the benefit of Mrs. Stiefel. In the motions to dismiss, Mr. Stiefel argued that because Son, had a durable power of attorney and also lived with Mr. Stiefel, there was no need for a court-appointed conservator.

         The trial court appointed a guardian ad litem for Mr. Stiefel on August 15, 2016, pursuant to Tennessee Code Annotated section 34-1-107. The court also held a hearing this day. At this hearing, the trial judge orally granted a thirty day continuance for Mr. Stiefel to undergo a physician's examination. A written order, however, was not entered by the trial court until September 23, 2016.

         Mr. Stiefel subsequently renewed his motion to dismiss on September 7, 2016, accompanying his motion with the sworn Psychologist's Report of Dr. Allen Battle, Jr. In the report, Dr. Battle opined that Mr. Stiefel was completely competent to manage his personal, medical, and financial affairs in a wise manner and did not need a conservator. On September 12, 2016, in response to Dr. Battle's Report, Mr. Woodhouse filed a motion to order an independent medical examination requesting that (1) Dr. Burns perform the examination and (2) Mr. Stiefel file Dr. Burns's Report. In this motion he also objected to Dr. Battle's affidavit on the basis that Dr. Battle is not an expert in geriatrics and, thus, not qualified to render a professional opinion regarding Mr. Stiefel. The trial court held another hearing on September 15, 2016. At this hearing, the trial judge made several comments regarding Mr. Stiefel's testimony and mental state at a previous, unrelated hearing, to which Mr. Stiefel's counsel objected. The trial judge then orally denied Mr. Stiefel's motion to dismiss and ordered an independent medical examination of Mr. Stiefel with Dr. Burns with a report to be filed by November 3, 2016, which ruling was memorialized by a written order entered on September 23, 2016. On the same day, the trial court entered a written order appointing an attorney ad litem for Mr. Stiefel.

         Following the September 15 hearing, Mr. Stiefel submitted another Sworn Medical Examination, this time performed and recorded by Dr. Randy Villanueva. Dr. Villanueva's report stated that the focus of his medical practice consisted of geriatrics and memory care. It further stated that he was Mr. Stiefel's treating physician since April 1, 2016, and that Mr. Stiefel had been diagnosed with mild dementia but is competent to make his medical and financial decisions. Dr. Villanueva also attached the results of Mr. Stiefel's Mini-Mental State Examination ("MMSE") to his report, in which Mr. Stiefel scored twenty-nine out of thirty.[5]

          On November 16, 2016, Mr. Stiefel's counsel filed Dr. Robert Burns's Sworn Medical Report and an amended answer. In his report, Dr. Burns stated that Mr. Stiefel was in need of a conservator to manage his person and affairs and that his disability is permanent with no hope of improvement. The amended answer claimed that (1) Mr. Stiefel does suffer from dementia, but can still manage his own personal and financial affairs; (2) Dr. Randy Villanueva is Mr. Stiefel's treating physician; (3) Dr. Burns's report was inaccurate because Dr. Burns had only seen Mr. Stiefel one time; (4) due to Mr. Stiefel's biological son's durable power of attorney for financial management, Mr. Stiefel has no need of a conservator. Additionally, on the same day, the guardian ad litem also filed her report, stating that Mr. Stiefel was affectionate and loving when visiting his wife, "reveled in showcasing his custom built home . . . [and] functions well in the familiarity of his environs." The guardian ad litem specifically found that "[Mr. Stiefel] does need assistance maintaining his finances" and "also requires help with some aspects of daily living." Overall the guardian ad litem concluded that "[Mr.] Stiefel can function semi-independently. [H]owever, Mr. Stiefel needs some assistance with his affairs."

         On November 17, 2016, the trial court held a hearing on the amended petition. At this hearing, the trial court first engaged in an extended discussion regarding Mrs. Stiefel and her assets before hearing Mr. Woodhouse's testimony. Mr. Woodhouse was the sole witness in this hearing. Mr. Woodhouse testified that he filed the petition for conservatorship because he noticed that funds were being taken from Mr. Stiefel's account and he became worried since those funds were intended to be used to pay for Mrs. Stiefel's care. He further testified that he was worried about Mr. Stiefel's mental state because Mr. Stiefel would often call him disoriented and sometimes crying, not able to find his way back home. Mr. Woodhouse, however, stated that these calls ceased approximately five to six months prior to the date of the hearing. Mr. Woodhouse further expressed that his only concern about Mr. Stiefel was in regard to the finances.

         After his examination, the trial judge along with counsel, had an unrecorded conversation and then the court took a recess. Court subsequently resumed, and the attorneys approached the bench again. After another discussion, the trial judge stated that she understood that counsel had reached an agreement. After which, Mr. Stiefel's attorney stated, "[y]es, your honor. We're agreeable to allow Mr. Otto P. Stiefel [Mr. Stiefel's son] to serve as conservator of the person with the Aging Commission serving as conservator of the estate." No further testimony was heard nor was any additional evidence introduced.

         On November 23, 2016, the trial court entered an order appointing Mr. Stiefel a permanent conservator of the person and estate, with Otto P. Stiefel acting as conservator of the person and the Aging Commission acting as conservator of the estate. Mr. Stiefel filed a timely appeal on December 21, 2016.

          ISSU ...


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