### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON F eb ru ary 19
, 200 9 S es sio n

IN RE CONS ERVATORSH IP OF LI LA M. TROUT

An Appeal from the Pr obate Court f or Shelby Coun ty No. D-3289 R obert Benham, Judge

No. W2008-01530-C OA-R3-C V - Filed October 15, 2009

This appea l involves a conservatorship. When the responde nt was e ighty-three ye ars old, her sister die d a ndle ft

the re sp on de nt o ve r $ 20 0, 00 0. Th e bu lk of the inh e ri ta nc e wa s pla c e d ina n ir re vo c able trust for the r es p o n d ent’s bene fit, and the de cea sed sister’s f ormer attorney wa s appointed as the trustee. Soon, the re spondent bega n to s p end her inheritanc e at a rapid rate, with much of the spending bene fitting her daughter and her daughter ’s boyfrie nd. The re spondent then purc hased a $200,000 home to live in with her daughte r and he r daughter ’s boyfriend, w ith the expec tation that the $1,800 monthly mortgage would be paid out of the trust. T h e at t o rn ey trustee sought to meet wit h the re spondent and he r daughte r to establish a budge t, but they refuse d to meet. The truste e then discover ed that, in a short pe riod of time, the re spondent had a massed substantial cr edit car d debt and ha d significantly depleted her certificates of deposit. The truste e filed the instant petition to es ta b li s h a c o n s e r v a to r s h ip o v e r

th e p e r s o n a n d th e e s tate o f th e r e s p o n d e n t. T h e tria l c o u rt appointed a gua

rdian a d litem and held a he aring on the petit ion, in which the re spondent testified. During her testimony, the respondent reque sted an attorney to repr esent her. The trial court did not do so a nd c on tin ue d wi th the he ari ng . A ft e r the he ari ng , th e tr ia l c ou rt e sta bli sh e d a c on se rv a tor sh ip over the person a nd the property of the re spondent. The r espondent now a ppeals, a rguing, int e r a lia
, that th e t ri al co u rt err ed in re fusing to appoint an attorne y ad litem upon her r equest, that the tria l court e rred i n finding the evidenc e suff icient to establish a conse rvatorship ove r her person a nd property, and that, alternatively, the trial court err ed in failing to restrict the c onservatorship to her pr op e rty. W e a ff

ir m th e tr ia l c ou rt ’s de c isi on in a ll r e sp e c ts.
Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Pr obate Court is Af firme d

H OL LY M. K I RBY , J., delivere d the opi nion of t he Court, in which A LA N E. H I G H ERS , P.J., W.S., and J. S TE VE N S TA FF O RD , J., joined.

F. Au sto n W ortma n, II I, a ndTe rry C. Cox , Co lli e rv ill e , T e nn e sse e , f or the app e lla nt, Li la

M. Tr ou t.
Lynn W. Thompson, Mem p his, Tennessee , for the a ppellees, Thoma s R. Buckner and D orothy Bob o, Con se rv a tor

of the Es ta te of

Li la Tr ou t.

OP IN IONW hen M s

. M cCasl i n di ed, Susa n and M s

. T r ou t ’ s ot her daug ht er , Cecel i a Cal dw el l
, w er e a dd ed as s i gn at ori es 1

on t he ac count

. Thi s w as done s o t hat t he pr oce eds i n t he ac count w oul d pa s s t o t he daught er s out s i de of pr obat e upon M s

. Tr out ’ s de at h.

T he am ou nt of cas h gi ven t o M s

. T r ou t for i nci dent al s each m on t h i s s om ew hat uncl ear , but i t appear s t hat 2

s he r ec ei ved about $300 c as h pe r m ont h.

-2- F A C TUA L B ACKG ROUND

When D oris McCaslin (“Ms. McCaslin”) en g ag ed h erl o n g -t i m e a t t o rn ey T h o m as R

. B uckner to draft her will, she designated her elder ly sister , Respondent/Appellant Lila M Trout ( “Ms. Trout”)

a s h e r s ole be ne fi c ia

ry . A t th e tim e , Ms. M c Ca sli n e xp re sse d to Buc kn e r h e r c on c e rnthat on e of Ms. Trout’s daughte rs, Susan Stevens (“ Susan”), might take f inancial advantage of her mother. Susan had limited earning capa city, and she quit working a ltogether in De cembe r 2000 bec ause of mental pr ob le ms anddr

ug a nda lc oh ol a dd ic tio ns

.
Ms. Mc Ca sli n d ie d o n J a nu ary 11 , 200 3, wh e n Ms. Tr ou t wa s eig hty -thr e e ye ars old . M s. Trout re ceive d $208,000 from M s

. McCaslin’s estate. O ut of respe ct for Ms. Mc Caslin, Buckner explained Ms. Mc Caslin’s conce rns about Susan to Ms. Trout and advised her that she could protec t her inhe ritance by putting the money in a trust for her own bene fit.
At the time, Ms. Trout agre ed that a tr ust f or her protec tion wa s appropriate. The ref ore, on July 1, 2003, $163,000 of her inhe ritance was plac ed in the Lila M. Trout I rre vocable Trust for the use and be n e f

it o f M s

. T r o u t ( “ th e ir

r e v o c ab le tr

u s t” )

. Bu c k n e r

w a s d e s ig n a te d a s th e tr

u s te e a nd

wa s th e so le sig natory on thi s trus t. Of the re ma ind e r of Ms. Tr ou t’ s inh e ri ta nc e , $1 5, 00 0 w a s p a id direc tly to Ms. Trout, and $30,000 was plac ed in ce rtificate s of dep o s it in Ms. Trout’s name. In addition, Ms. Trout and Ms. McCaslin had shar ed owne rship in a joint checking acc ount with a $30,000 balanc e; this passed direc tly to Ms. Trout outs ide of probate. The checking a ccount a nd 1 the ce rtificate s of deposit wer e held in a re vocable trust for the use and bene fit of Ms. Trout in order to avoid probating these i t em s upon Ms. Trout’s death. Ms. Trout was the sole signatory on the

revoc able trust. A third trust for Ms. T ro u t ’s o t h er daughter , Cece lia Caldwell, ref err ed to as the Cece lia Caldwell Trust, was e stablished in late 2004 with $9,900 from the irr ev o cable trust. The Ce c e lia Ca ldw e ll T ru st w a s e sta

bli sh e d in or de r to eq ua liz e dis tr ibu tio ns to M s. Tr ou t’ s d aug hte rs ; wh e ne ve r Ms. Tr ou t mad e payme nts to or on be ha lf of Sus a n, a n e qu a l a mou nt w a s to be pu t in to the Ce c e lia

Ca ldw e ll T ru st. Ho we ve r, Ms. Tr ou t w a s th e be ne fi c iary of the Ce c e lia

Ca ldw e ll T ru st du ri ng he r l if

e tim e , s o the se fu nd s wou ld be a va ila ble to he r if

the ne e d a

ro se . Bu c kn e r w a s th e so le signatory on the Cec elia Caldwe ll Trust as well.
Shortly after the irrevoc able trust wa s established, Buckner began r ece iving numerous reque sts from Ms. Trout for c ash fr om the corpus of the trust. Buckner paid so m e of Ms. Tr out’s bil ls d ir e c tly fr om the trus t, s uc h a s re nt a nd uti lit ie s. Buc kn e r a lso dis tr ibu te d abo ut $3 00 pe r m on th to Ms. Trout for incidenta ls; he rec eived little information about how the i n ci d en t al money was used. 2“A pet i t i on f or t he appoi nt m ent of a c ons er vat or m ay be fi l ed by a ny pe r s on ha vi ng know l edge of t he 3
ci rcum st an ces nec ess i t at i n g t h e ap p o i n t m en t of a co n ser v at o r. ” T en n

. C o d e A n n

. § 3 4 -3-1 0 2 (20 0 7 ).

-3- During this time, Sus an lived in the apa rtment next door to Ms. T ro u t

. S u san shar ed the apartment with her long-time boyfrie nd, Steve Hawks (“H awks” ). At Ms. Trout’s re quest, Buckner agre ed to pay Susan’s rent of $738 per month f rom the irrevoc able trust, be cause Susan was c aring for Ms. Trout’ s needs. I n 2004, Buckner used $17,000 from the irr evoca ble trust to purcha se a vehicle f or Ms. Trout so that Susan could tak e M s. Trout to her a ppointments, because Ms. Trout did not drive. Within the yea r, howe ver, the car

was wr ecke d (t h ro u g h no fault of Ms. Trout or Susan), and the insurance c ompany paid out the total value of the ca r. Buckner

was ne ver informed to whom the insurance chec k was written or how that money w as spent. Later, without Buckner ’s knowledge, Ms. Tr out finance d another vehicle; Buckner learned of it whe n the financ ing company contac ted him to arra nge to re ceive the monthly note payments out of the irre vocable trust.

At the same time, Buckne r bec ame a war e that the money in the revoc able trust, under the control o f Ms. Trout, was be ing spent as well. Whe n Buckner inquire d of Ms. Trout and Susan rega rding how Ms. Trout’s money w as being used, he did not rece ive a r esponse.

In l ight of these oc curr ence s, Buckner be came conce rned that Ms. Trout’s assets we re be ing consumed so ra

pidly that she would not have suff icient funds to meet her needs during her lifetime. Th e re fo re , a s tr

us te e of the ir re vo c able trus t, B uck ner c on ta c te d M s. Tr ou t a ndSus a n to sc he du le

a me e tin g to dis c us s a

bu dg e t a nda

re du c tio n o f the mon e tary ou tlay
, in ord er to e ns ur e that Ms

. Tr ou t’ s a sse ts w ou ld b e c on se rv e d f or he r n e e ds . M s. Tr ou t a ndSus a n d id not coo pe rate wi th Buckner’ s reque st, and the mee ting never ha pp en ed

. Acc ording to Buckner’ s rec ords, betwe en Oc tob e r 2 00 3 a ndJu ne 20 05 , n ine te e n me e tin gs we re sc he du le d a ndwe re e ith e r canc e le d o r s imp ly not attended by Ms. Trout a nd Susan.

In e arly 2007, Buckne r lea rned that Ms. Trout had purc hased a home in Lake land, Tenne ssee, for $212,500, c omplete with a 30-year mortgage and a note of ove r $1,800 per month. Sus an and Hawks lived in the home with Ms. Trout, but they apparen t l y p aid no household expe nses. Afte r discovering the home purchase, Buckner im plemented a strategy de signed to reduc e the moneta ry outlay from the irr evoca

ble t rust and pressure Ms. Trout and Susan to mee t with him t o establish a bu dg e t. To thi s end , he pa id onl y Ms. Tr ou t’ s bas ic e xp e ns e s f ro m th e trus t, s uc h a s th e ho us e no te and utilities, and eliminated nonessentials, s u ch as cable television. This appare ntly did not have the int e nd e d e ff

e c t, a s n e ith e r M s. Tr ou t no r S us a n c on ta c te d Bu c kn e r t o me e t w ithhim

.

P R O C EE D ING S B E L OW

Alarme d at th e d i minishi ng balanc e of trust monies, on July 23, 2007, Buckner filed the instant petition t o establish a conservator ship of t he person and of the estate of Ms. Trout, who wa s eighty-seve n year s old at the time. In the pe tition, B uckner as s er t ed t h at a conservatorship was 3

nece ssary be cause Ms. Trou t was not compete nt by rea son of age , physical and me ntal condition, and undue inf

luence of others to mana ge her own per sonal and financial affairs. A guardian ad litemO n S e p te m b e r 4 , 2 0 0 7 , a su b stitu te g u a rd ia n a d li te m , Jo h n W ilk in so n , III , w a s a p p o in te d fo r M s. T ro u t. 4

U nder Tenne s s ee Code Annot at ed § 34- 3- 106, a r es pondent ha s t he r i ght t o: 5

( 1) O n de m and by r es pondent or t he guar di an ad l i t em , a he ar i ng on t he i s s ue of di s abi l i t y; (2 ) P rese n t ev i d en ce an d co n fro n t an d cro ss-ex am i n e w i t n esse s; ( 3) A ppea l t he fi nal de ci s i on on t he pet i t i on; ( 4) A t t end any hea r i ng; a nd (5 ) H a v e a n a tto rn e y a d li te m a p p o in te d to a d v o c a te th e in te re sts o f th e re sp o n d e n t.

T en n

. C o d e A n n

. § 3 4 -3-1 0 6 (20 0 7 ).

-4- wa s a pp oin te d f

or Ms. Tr ou t, anda

he ari ng on the pe tit ionwa s se t f or Se pte mbe r 2 5, 20 07

. On Ju ly 4 25 , 2 00 7, Ms. Tr ou t r e ceive d a no tic e of the pe tit iona ndthe he ari ng , w hic h li ste d h e r righ ts a s a responde nt as delineated in Tenne ssee Code A nnotated § 34-3- 106, including her right to “[ h]ave an attorne y ad li tem appointed to advocate” he r intere sts. In addition, notice of the hearing was sent 5 to Susan and to Ms. T rout’s other daughter
, Cece lia Caldwell (“Cec elia”)
, who lives near Nashville, Tenne ssee. Af

ter re ceiving notice of

the conservatorship procee dings, Susan contac ted an attorney, Eugene Douglass (“ Douglass”) , to repre sent Susan’s intere sts in the matter. No attorne y was
re ta ine d f or Ms. Tr ou t, andno re qu e st f or a n atto rn e y f

or Ms. Tr ou t w a s ma de to the tr ia l c ou rt

. On September

11, 2007, by consent, the tria l court re schedule d the hea ring for O ctober

15, 20 07 . On Sep te mbe r 19, 20 07 , the tr ia l cou rt e nte re d an oth e r co ns e nt o rd e r r e qu ir ing Ms. Tr ou t to

su bmi t to a

ps yc ho log ic a l exam. Th e or de r re qu ir ing a n ex a m wa s nec e ssa ry “ du e to [ Ms. Tr ou t’ s] la c k o f c oo pe ratio n. ” Ms. Tr ou t w as ord ered to re po rt to M oh a mme d A l- Tahe r, M. D. (“ Dr . A lTahe r”) , for the e xamination.

On Oc tob e r 4 , 2 00 7, Dr . A l- Tahe r p e rf orme d a on e

- h o u r p sy c hiatr ic e va luatio n o n M s. Tr ou t. His two-page report was filed f or the trial c ourt’s consider ation. As to Ms. Trout’s medica l history, Dr . A l- Tahe r n o t e d th a t sh e su ff e rs fr om c hr on ic ob str

uc tiv e pu lmo na

ry dis e a se (“ CO PD” ), c a tara c ts and re tinal detachme nt, and hea ring loss. He desc ri b ed her as friendly and polite, ca lm and cooper ative. He found Ms. Trout to be mentally competent, sc oring 29 out of 30 on a “ mini mental status e xa m,” a nd op ine d tha t she se e me d “o ve ra ll co mpe te nt t o ma ke me dic a l de c isi on s. ” Dr . A lTahe r fo un d no symp tom s o f d e me nti a , p sy c ho sis , mo od , o r anx ie ty d iso rd e r. He re la te d th a t Ms

. Trout told h i m t h at Susan and Ha wks give her “A+ ” ca re, and that Buckner w anted “ to take over

e ve ry thi ng ” sh e do e s. Dr . A l- Tahe r a lso re la te d th a t Ms . T ro ut b e lie ve d th a t Su sa n s pe nt the trus t money for he r (Ms. Trout’ s) bene fit, and had no suspicion of ir responsible spending. In hi s report, Dr. Al-Taher indicated that Ms. Trout was una war e of the amount of her monthly expenditures or how much of he r trust money re mained. Whe n asked what she would do if the mon e y r a n o ut, Ms. Tr ou t r e sp on de d th a t sh e wo uld“ ha ve to fi nd ‘a ro om s ome wh e re ’ w ith her Social Security che ck to pay f or that.” D r. Al-Taher r ecommende d that Ms. Trout watch he r financ es more c losely, and recommende d further that Ms. Trout’s fina nces not be entrusted to Susan. He c ommented that Ms. Trout might be “unwillin g t o co n s i der that her fina nces a re be ing mismanaged be cause she is afr aid to give up the quality of c are p ro v i d ed b y [Susan and Ha wks]. There fore , the question of undue inf luence cannot be ignored in this situation

. ” Dr . Al-Tahe r’s-5-

report concluded that, while Ms. Trout “a ppear s competent to make major dec isions . . ., emotional fa c tor s li ke fe ar o f b e ing aba nd on e d c ou ld b e inf lue nc ing he r t o ma

ke de c isi on s tha t w ou ld a dv e rs e ly aff ect he r mental a nd physical we ll being in the future.”

On Oc tob e r 11
, 20 07
, the G ua rd ia n A d L ite m ( “ GA L” ) s ub mit te d to the tr ia l c ou rt his “Answe r, Report a nd Recommendation” on behalf of Ms

. Trout. The GAL’s exte nsive investigation included personally consulting with Ms. Trout, both of her daughters, Buckne r, Buckner ’s attorne y, Dr . A l- Tahe r, a ndMs. Tr ou t’ s p hy sic ia n, Dr . H e rm ini o B. Ba lde rama (“ Dr . Bal de rama ” ). He a lso

me t w itha n o ff

ic e r of Ms. Tr ou t’ s ban k a ndob ta ine d a c c e ss t o h e r b a nk ing re c or ds a ndhe r c re dit report.
In his repor t t o the trial court, the GAL noted that, beginning in 2004, both Ms. Trout and Susan declined to c ommunicate with Buc kner and ref used to coope rate with him. He indicated that it too k gr e a t e ff

ort to fi na lly pe rs ua de Sus a n to tr a ns po rt Ms. Tr ou t to Dr

. Al -T ahe r fo r her cou rtor de re d p sy c ho log ic a l e va luatio n. W hil e Ms. Tr ou t liv e d ind e pe nd e ntl y in a n apa rt me nt a t the tim e the trus ts w e re e sta

bli sh e d, the GA L f

ou ndthat Ms . Tr ou t “w ou ld n ot b e able to l ive ind e pe nd e ntl y
a t th is t ime .” He no te d th a t Ms . T ro ut h a d b e c ome inc re a sin gly a lie nate d f ro m he r daug hte r C e c e lia and re fused to communicate with her , much to Cece lia’s conc ern. For he r part, Ms. Trout told the GAL that Cec elia “doe s not care for he r.”

The GA L found that Ms. Trout’s income totaled about $1,100 per month, comprise d of $900 from socia l security payme nts and $200 from a University of Florida pension. Despite this meager income leve l, Ms. Trout vacated her a partment a nd purcha sed the ne w home in Lake land, ca rrying

a 30 -y e ar m ortga ge wi th a no te of ov e r $ 1, 80 0 pe r mon th. Ms. Tr ou t’ s $ 1, 10 0 p e r m on th i nc ome did not cover the expense s that were not paid by the trust. The av era ge bala nce in Ms. Trout’ s chec king acc ount was appr oximately $1,000, and during the ye ar prec eding the GAL ’s re port, there had bee n t h irteen ove rdra fts. The GA L found that the other monies that Ms. Trout rec eived f rom Ms. McCaslin’s estate, he ld in the revoc able trust, we re c ompletely gone. Specif ically, he state d that over $41,000 in five certificates of deposit had been cashed out
, and there was no rec ord of how the money was use d. “[E] ven more telling,” the GAL note d, was the $61,000 i n cre dit card de bt that Ms. Tr ou t had a ma sse d s inc e Ms. Mc Ca sli n’ s d e a th, ge ne rate d f ro m “ no le ss tha n n ine ” c re dit c ard s. He c ou ld n ot a c c ou nt f

or the ins ur a nc e pr oc e e ds fr om the a c c ide nt i nv olv ing the fi rs t c ar the trus t had purc hased f

or Susan to transport Ms. Trout, a nd a sec ond car purcha sed in Ms. Trout’s name had been r epossessed. By the tim e t h e GAL issued his report, ther e wa s only $70,000 left in the ir re vo c able trus t e sta

bli sh e d f or Ms. Tr ou t’ s b e ne fi t. In his report, the GAL found t h at the leve l of spending clea rly exc eede d Ms. Trout’s demonstrated ne eds, and that the debts had be en incur red wi t h o u t rega

rd to Ms. Trout’s financ ial means, showing a “ high degre e of f inancial disre gard.” From the circumstanc es and his intervie w with Ms. Trout, the GAL c oncluded that Ms. Trout ha d “no pre sent conc ept of fina ncial

re sp on sib ili ty, ” a nd “ ve ry lit tle ins igh t in to h e r c ur re nt f inanc e s a nd

. . . li ttl e c on c e pt o f w hat it is going to take to meet her

needs throughout the r emaining yea rs of he r life. She is unaw are of her

c ur re nt d e bt s itu a tio n. ” While Ms. Tr ou t may h a ve ha d s ome c on c e pt o f f inanc ia l r e sp on sib ili ty when she set up the trusts, the GAL found, she no longer does. The GAL noted that Ms. T rout had the per ception that she ha d been “ tricked” by Buckner and C ece lia into establishing the t rusts. The GAL found this per ception to be ba seless, obser ving that, had the trusts had not been established,-6-

Ms. Tr ou t w ou ld b e pe nn ile ss w ith“ no thi ng to s ho w f or it. ” Gi ve n a ll of

the se c ir c ums ta nc e s, despite Dr. A l-Tahe r’s finding of mental competenc y, the GAL was of the opinion that Ms. Trout

ne e de d a c on se rv a tor

of he r pe rs on a ndhe r p ro pe rty. He c ha ra c te ri z e d M s. Tr ou t a s “ e ith e r h or ri bly fi na nc ia lly ir

re sp on sib le on he r o wn , or s he is b e ing take n u nd ue a dv a nta ge of a ndun du ly influence d, all to her detriment.” Acc ordingly, he conc luded that the appointment of a conservator for Ms. Trout wa s warr anted an d wa s i n her be st interest, due to “se rious impairments to her functional c apac ity and to her de cision making capa city.”

On Oc tob e r 1 5, 20 07 , th e tr ia l c ou rt c on du c te d th e he ari ng a s sc he du le d. At the ou tse t, attorney D ouglass, appea

ring on behalf of Susan, informed the trial court that Ms. Trout wanted her own attorne y, and suggested that the case be continued to pe rmit her to re tain one. The trial court ref used to co n t i n u e the c ase, noting that it had alre ady bee n continued once and that Douglass, a s
a tto rn e y f or Sus a n, ha d n o sta nd in g to make re qu e sts on be ha lf of Ms. Tr ou t. T he tr ia l c ou rt a lso

no te d th a t ne ith e r the GA L n or Ms. Tr ou t ha d ma de a

re qu e st f or a n atto rn e y a d li te m.

At the heari n g , t es t i m o n y wa s ad d u ce d fr o mB u ck n er , M s

. T ro u t , S u s an , Ha wk s , an d Cece lia. Buckner testified that, when the tr usts were initially established, Ms. Trout was “ve ry indepe ndent . . . and she w as very confide nt and under stood the situation.” He said that Ms. Trout thought that

e sta bli sh ing the trus ts w a s “ a n e xc e lle nt i de a ,” a nd sp eci fi c a lly de nie d “ tr ic kin g h e r” int o establishing the trusts.

Buckner the n related the series of eve nts to the trial court. He testified about the numerous reque sts for ca sh from the irr evoca ble trust that he rece ived from Ms. Trout and Susan shortly after he be c a me trus te e , a s w e ll a s th e sig nif ic a nt amou nts of

mon e y b e ing sp e nt fr om the a sse ts i n M s. Tr ou t’ s r e vo c able trus t, i .e ., he r c he c kin g a c c ou nt and the c e rt if ic a te s o f dep os it

. He s a id that hi s attempts to get information from Ms. Trout a nd Susan about t he financial requests and the dwindling balanc e in the revocable trust wer e rebuffe d. Buckner said that he wrote letters and called Ms. Trout and Susan to arr ange a

meeting re garding a

budget, but they would not meet w ith him. Nineteen

sc he du le d me e tin gs we re e ith e r c a nc e lle d o r s imp ly n ot atte nd e d. Th e fe w time s Buc kn e r w a s a ble to speak to Ms. Trout on the telephone, he said, her comments appea red to be “scripted,” and Susan

wa s a lw a ys on the lin e a s w e ll.

Buc kn e r l e ar n e d ab o u tM s

. T r o u t ’ s p u r c h a s e o f t h e L ak e l a n d h o m e a f t e r t h e f a c t, commenting that he wa s “shocke d” that a f inancial institution would m ake suc h a loan to Ms. Trout at her age w ith her income. H e met with Ms. Trout and Susan in that house on one occa sion. From his observation at that mee ting, Buckner desc ribed Ms. Trout a s less independe nt than bef ore, and he wa s “convinc ed that [Ms. Tr out] rea lly had less judgment by far tha n she did in 2003.” Buckner testified that Susan and Ha wks as s u red him at the tim e that they intende d to pay some of the household expe nses, but declined to identify which bil ls they were going to pay. After that, Buckner paid only the house note and the utilit ies from the trust. After this single visit, Ms. Trout and Susan would not see Buckne r again.

Buckner told the tria l court that he le arne d of Ms. Trout’s ove r $60,000 i n cre dit card de bt when he rec eived a telephone call from a credit car d agent requesting payment. He late r discover ed that Su sa n h a d r e fe rr e d a ll o f M s. Tr ou t’ s c re dit or s to him , in fo rm ing the m that he , a s tr us te e , w ou ld-7-

pay Ms. Trout’s credit ca

rd debts. He had no knowledge of what the char ges we re f or or how the y
wer e incur

red.

Buckner te stified that, at the time of trial, Ms. Trout had only $70,000 re maining in the irrevoc able trust and $30,000 in the Ce celia Caldwell Trust. He f elt that the appointment of a

conservator wa s nece ssary to conse rve the rema ining funds for Ms. Trout’s be nefit.

Ms. Trout testified on her own behalf

. She answe red questions a bout he r bac kground, her income, and he r fa mily. After Ms. Trout’s husba nd died, about seve n year s before t he trial date, Susan moved into the next-door a partment. During that time, Ms. Trout had been a ble to live on her $1,100 per month income. Asked i f she had any other debt at that time, such a s a ca r note, Ms. Trout replied, “ I’m not re al sure.”

Ms. Tr ou t te sti fi e d th a t, f or a wh ile , Su sa n w a s w or

kin g tw o jo bs a nd was fi na nc ia lly supporting herse lf. At some point, however , Susan stopped working bec ause of a mental disability, the nature of which Ms. Tr out did not know. M s. Trout rec alled re questing that Buckner pay Susan’s rent a nd expense s out of t he irrevoca ble t rust, but was uncertain about the t iming. S he maintained that Su sa n to ok

c are of he r n e e ds a t a ll t ime s. When askedif sh e a gr e e d to pay Su sa n’ s b ill s in exchange for

her c onstant car e, Ms. Trout re sponded, “I don’t reme mber.”

Ms. Trout claimed that she contac ted a real estate agent about finding her a house in which to live with Susan and Ha wks. Asked if she gave the rea l estate a gent a budge t, Ms. Trout replied, “I think so.” W hen aske d whether she, Susan, and Hawk s ag ree d on how to divide the expe nses
a mon g th e m, M s. Tr ou t r e pli ed, “I d on ’t re me mbe r. ” Ms. Tr ou t in dic a te d th a t th e ho us e no te payme nts we re ma de fr om a joi nt a c c ou nt s he he ld wi th Sus a n. Ms. Tr ou t th ou gh t th a t Su sa n p a id the utiliti es, though she did not know whether Susan had her own che cking ac count. Ms. Trout was

a wa re that, f or the ye ar p re c e din g th e tr ia l, h e r d aug hte r C e c e lia ha d b e e n tryin g to c on ta c t he r. Ms. Trout explaine d that she had not re sponded t o Cece lia’s calls beca use she thought it would be better to wait until the legal proce edings wer e over to resume that r elationship. When a sked t o identify her assets, Ms. Trout responded, “I don’t own anything” e xcept the house. Asked a

bout her de bts, Ms. Trout acknowle dged, “W e had some char ge ac counts,” but she did not know t he identit ies of all of her cre ditors. Ms. Trout s aid that the cr edit car d purcha ses wer e for ne cessities for

her, Susan, and Hawks. When asked how muc h debt she ha d acc rued, Ms. Tr out responde d, “A thousand. . . . I t could have been as much as 10,000,” but not as muc h as $20,000. Ms. Trout did not think t hat it was possible that her de bt tota l ed as much as $60,000. Ms. Trout knew that she had owne d a car , but did not know how much she owed on it. Ms. Trout claimed that she and Susan togethe r negotiated the l oan for the Lakeland house. She estimated that her de bt on the ho us e wa s “ pr ob ably a hu nd re d th ou sa nd[d oll ars ], ” a ndthat he r i nte re st r a te wa s “ pr ob ably 1.5[%] .” She wa s under the impre ssion that Sus an wa s a co-de btor on the house note. Ms. Tr out

was a war e that Ha wks did not work, but believed that he re ceive d a pension.

Ms. T rout testified about he r medica l condition. She arrived in c ourt in a whe elcha ir, but testified that, in her home , she uses a walke r. M s

. T ro u t ’s onl y medication wa s for high blood pressure . Ms. Trout said that Susan made he r doctor a ppointments and transp o rt ed her to the-8-

appointments. She said that she t akes care of her own daily needs, can dress herse lf, and c an pre pare simple meals for he rself.

Ms. Trout rec alled mee ting with Buckner about setting up the trusts. She testified that she

wa s le d to be lie ve sh e wo uldha ve a c c e ss t o h e r m on e y a ny tim e sh e wante d, bu t sai d th at this “wa sn’t true; whe never

I wa nted [money] it was like pulling out t eeth.” Ms. Trout acknow ledged that her mone y was running out, but maintaine d t h at she still wanted Buckne r to spend it for he r. Once her mone y was gone , Ms. Trout believed that Sus an an d Hawks w ould support her. W hen asked w hat her

plans would be if Susan and Hawks did not have suff icient income to support her
, Ms. Trout said, “I ha ven’t de cided.”
During his questioning of Ms. Trout, t he GAL reminded her that she had been told about her right to an attorney, and noted that she had never formally reque sted one. The GAL t h en s t at ed, “You ha ve a right to tell t his judge what you want in that rega rd if you wa nt to say anything about that.” Ms. Tr ou t th e n s ta te d, “ I w ou ld l ike to r e qu e st an a tto rn e y. ” W he n a sk e d w hy sh e wo uld reque st an attorney at that juncture, Ms. Trout replied, “W ell, everybody else see ms to have one.” She again told the trial judge, “ I’d like to have my attorney pre sent.”

The trial c ourt also hear d testimony fr om da ughter Susan, then fifty-e ight years old. Susan had bee n divorce d for e ighteen yea rs and ha d two ad u l t ch i l d ren. After he r divorce , she filed f or bankruptc y. She had wor ked in a va

riety of job positions at a psychiatric hospital f or a total of nine to te n year s. After

that, Susan worked a s a ca se mana ger at an alcohol a nd drug treatment fac ility, bu t th is j ob la ste d le ss tha n a ye ar. Af te r S us a n q uit

the c a se ma na ge r j ob , s he ob ta ine d tw o p art

tim e j o b s at a substantially lower c ompensation level than f or the c ase ma nager

position. S usan explained that her ment al i l l n es s and alcohol and drug proble ms left her una ble to cope w ith the str e s s a s s o c iate d w ith th e c a s e man a g e r jo b

. Si n c e 1 9 8 9
, Su s a n h a d r e c e iv e d b o th inpa tient and

ou tpati ent tr eat me nt f

or de pr e ssi on a nda nx ie ty d iso rd e r; he r l a st i np atie nt t re a tme nt w a s in approximate ly 2000; and afte r that, she stopped working altogether

. She testified that she wa s taking both Prozac and Xa nax for her anxiety issues. At the time of trial, Susan had no income; she ha d

app lie d f or dis abil ity be ne fi ts, bu t he r c la im h a d b e e n d e nie d a ndthe de nia l w a s o n a pp e a l.

Susan claimed that she inherited $37,000 from Ms. Mc Caslin’s e state. She said that all of he r i nh e ri te d mo ne y h a d b e e n s pe nt, a ndsh e ha d e sse nti a lly no a sse ts.

Sus a n w a s a sk e d a

bo ut the joi nt c he c king accou nt that pa sse d to Ms. Tr ou t up on Ms. McCaslin’s death. After Ms. Mc Caslin’s died, both of Ms. Trout’s daughte rs, Susan and Cec elia,

wer e adde d to the acc ount, ostensibly so t hat the ac count w o u l d p as s to the daughter s outside of probate upon Ms. Trout’s death. Susan conce ded that she had alr eady spe nt all of the money in the

acc ount on her own pe rsonal needs. She claimed that Ms. T rout was a war e of he r ac tions. S usan
a d d e d t h a ts h e i n i t i a l l y t o l d M s

. T r o u tt h a ts h e w o u l d p a y h e r b a c k
, b u tn e v e r

d i d s o , p u rp o r t e dly beca use Ms. Trout neve r aske d her f or the money.

Sus a n te sti fi e d th a t sh e ha d o ne c re dit c a rdin he r ow n na me wi th a ba la nc e of

app ro xim a te ly $100. She acknow ledged that she had signatory powe rs on two of Ms. Trout’s credit cards, and that she had use d them for household expense s, dinners, gas, and the like. Susan could not estimate the-9-

amount of cr edit car d debt owed by h er m o ther. She c laimed that she wa s in the proce ss of negotiating settlements for some of this debt, but could not recal l t h e n ames of the cre dit card companies w ith which she was negotiating. When she was a sked about the $300 in c ash Buckner sent to Ms. Trout eac h month for incidentals, Susan had no re co l l ection of how that money was spent.
Approximately a

year befor e Ms. McCaslin died, Susan moved into the a partment ne xt door to Ms. Trout. At differ ent times, Susan said, both Ms. McCaslin and Ms. Trout had broken a hip, and Susan took ca

re of eac h during their rec overy. Susan claimed that she and Ms. Tr out purcha sed the house in Lake land bec ause the lease s on their respe ctive apartments w ere going to expire and the rent w a s g o in g to in c r e a s e , a n d a ls o b e c au s e M s

. T r o u t’ s h e a lth h a d d e c li n e d to th e p o in t tha t she “re quire[d] 24 hour seven day a w eek c are .” Susan wa s unawa re of the balanc e of the mortgage on the Lake land house, saying Buckne r had that information.
Susan said that she had pr omised her mother that she would ca

re f or her for so long as she

was a ble. Susan said that she ha d warned her mother that i f a c onservator wer e appointed, she might end up in a nursing home. Whe n asked how she would support her self without her mother ’s money, Susan replied that e ither Ha wks would support her or she would “be on the stree t.”

The trial c ourt also hea

rd testimony from Susan’s boyfriend, Steve Ha wks (“H awks” ). Hawks te stified that he is unable to work due to bipolar disorder, high blood pre ssure, diabe tes, and liv e r d iseas e . H e re c e ive s $ 1, 40 0 p e r m on th i n d isa bil ity be ne fi ts. Ha wk s said that hi s d isa bil ity chec ks went towar d household expe nses. Haw ks said that he has about $70,000 in a pension fund,

a nd w a s “ i n t h e p r o c e s s ” o f s e t t i n g u p a m o n t h l y w i t h d r a w a l f r o m h i s p e n s i o n f

u n d t o he lp w ith household expe nses. Whe n asked what would happen once Ms. T rout’s trust monies and his pension monies were exhauste d, Hawks r eplied that the house hold financia l situation would be “lean,” but they would get by somehow.

Ms. Tro ut’ s o the r d aug hte r, Ce c e lia , te sti fi e d at tria l. P ri or to 2 00 4, sh e sa id, sh e a ndMs. Tr ou t ha d a

ve ry go od re la tio ns hip . Ce c e lia a c c omp a nie d M s. Tr ou t to so me of the me e tin gs wi th Buckner to se t up the trusts and to ma nage her inheritanc e, and she believed that, at the t i m e, h er mothe r u nd e rs too d th e imp a c t of the trus ts. Be fo re inh e ri tin g th e e state mon ie s, Ce c e lia state d, Ms. Tr ou t ha d mana ge d h e r f

inanc e s w e ll.

Ce c e lia ind ic a te d that the mon e y Ms. Tr ou t in he ri te d b e ga n d isa pp e ari ng in a

pp ro xim a te ly 2004; at the s ame tim e, C ece lia’s relationship with M s. Trout and Susan bec ame tense . After about 20 07 , Ce c e lia state d, the ir re la tio ns hip ha d de te ri or a te d to the po int that it be c a me a lmo st i mpo ssi ble to contact Ms. Trout. Cec elia attributed Ms. Trout’s preca rious financ ial situation as of the date of trial to her desire to ta

ke car e of Susan and Susan’s influence over he r mother. Though she did not join the lawsuit as a petitioner, Cec elia believe d that a conse rvator w as nee ded t o p ro t ec t her mother’s a ssets and her

health.

At the conc lusion of t he hearing, t he trial court iss ued an oral ruling that Buckne r had shown by clea r an d co nvincing evidenc e that a c onservatorship for Ms. Trout’s pe rson and e state wa s
ne c e ssa ry . T he tr ia l c ou rt e xa min e d M s. Tr ou t’ s f un c tio na l c apa c ity a ndde c isi on -m akin g c apa c ityT h e a t t o rn ey ’s fee s i n cu rred b y M s. T ro u t w ere p aid b y H aw k s. 6

-10- as deta i l ed in In re Con servatorship of Groves , 109 S.W.3d 317 (Tenn. Ct. App. 2003) ( “ In r e Grove s ”). I t found that the evide nce show ed that Ms

. T ro u t “is not fully awar e of the nature and

e xte nt o f h e r a sse ts, no r i s sh e a wa re of the natur e a nde xte nt o f h e r l ia bil iti e s. Ms. Tr ou t ob vio us ly has physical problems and needs assistance with those physical problems.” The trial court e xpresse d

“ a larm ” a t th e rate a t w hic h M s. Tr ou t’ s a sse ts ha d d e c lin e d inva lue , o bs e rv ing that “ [t ]h is h ou se of ca rds i s about to collapse.” The trial de scribed Ms. Tr out, Susan, and Haw ks as three disabled people living in a house they c ould not affor d. In light of this, the trial court ap p ointed an ind e pe nd e nt c on se rv a tor

ov e r the person a nde state of Ms. Tr ou t a ndor de re d th e c on se rv a tor to develop a nd file a pr operty mana gement plan and a persona l manageme nt plan for Ms. Trout. The trial court stat ed t h at , “pending the a pproval of a

property manageme nt plan and per sonal

ma na ge me nt p la n a nd ma yb e e ve n af te rw ard s, ” it wou ld be in Ms. Tr ou t’ s b e st i nte re st t o li ve wi th Susan “bec ause she needs somebody to physica lly take ca re of her .” On Oc tober 16, 2007, the tria l court e ntere d a written or der consistent with its oral ruling, finding “by clea r and c onvincing proof . . . [that Ms. Trout] is a ‘ disabled per son’ under Tenn. Code Ann. §34-1-101(7) who lacks the functional c apac ity and decision-making capa city to wholly care for he rself or manage her pr operty” and, ther efor e, nee ds a conse rvator.

After that, Ms. Trout reta ined an attorney and, on N ovember 14, 2007, filed a motion pursuant to Rule 59 of the Te nnessee Rules of Civil P roce dure f or a ne w trial or, in the alternative, to alter or amend the court’s prior orde r. Ms. T ro u t ar g u ed t h at she wa s entitled to a new tria l 6 beca use she did not re tain an attorne y prior to the hea ring, and an attorne y ad litem (“A AL”) was not appointed for

her upon her reque st a s is r equire d pursuant to T ennesse e Code Annotated § 34- 1-125. Ms. Trout maintained that the evidenc e did not support the trial court’ s finding that she was in nee d of a co n s er vator for

her pe rson or prope rty, and a sserted that the conservator a ppointed was not qualified be cause she wa s not a Tenne ssee resident. Susan filed a pleading joining in and supporting Ms. Trout’s motion. The GAL filed a response t o Ms. Trout’s motion for a ne w trial stating, among oth e r thin gs , th a t he ha d n o o bje c tio n to the tr ia l c ou rt a llo wi ng Ms. Tr ou t to re ta in the ri gh t to v ote

a ndthe ri gh t to make he r ow n me dic a l de c isi on s, bu t heob je c te d to Ms. Tr ou t r e ta ini ng the ri gh t to make he r own re sidential decisions, bec ause suc h d ec isions would im pact he r “a lrea dy disastrous fi na nc ia l si tuatio n. ” Buc kn e r fi le d a re sp on se a s we ll, ob je c tin g to the mot ion fo r a ne w t ri a l or to

a lte r o r ame ndthe jud gme nt.

On Janua ry 30, 2008, the trial c ourt conduc ted a hearing on Ms. Trout’s motion for a new trial. On the day of t he hearing, Ms

. Trout was taken to the hospit al emer gency r oom with breathing problems, and he r attorne y reque sted a c ontinuance on that basis, informing the trial court that he had planne d to call Ms. Trout to testify. The trial c ourt denied the req u est for a continuance and pr oc e e de d w iththe he ari ng . A t th e c on c lus io n, the tr ia l c ou rt de nie d th e mot ionfo r a

ne w t ri a l, adhering to its original dec ision in t oto

. On April 17, 2008, the trial cour t entere d a written order

on the motion , in c or

po ratin g it s o ra l ruli ng . Fr om this or de r, Ms. Tr ou t now app e a ls, na min g b oth Buckner and the court-appointed c onservator, Dorothy Bobo (“Ms. Bobo”) (collec tively,

“ Ap pe lle e s” ), a s A pp e lle e s.-11- I S S UE S ON A PP E AL AND S TANDA RD OF R EVIEW

Ms. Tr ou t r a ise s th e fo llo wi ng iss ue s o n a pp e a l:

1. W h e t h e r t h e tr i a l c o u r t e rr e d i n r e f u s i n g t o ap p o i n t a n a t t o r n e y a d l i te m to

re pr e se nt h e r d uring the Oc tob e r 1 5, 20 07 he ari ng , de sp ite he r r e qu e st f or c ou ns e l? 2. Whethe r the trial c ourt err ed in the appointment of an out-of-state person a s
conservator? 3. Whethe r the trial c ourt err ed in finding that the evide nce pr esente d at the Oc tober 15, 2007 hearing c lear ly and convincingly established that Ms. Trout is a “disabled pe rs on ” as define d inTe nn e sse e Cod e An no ta te d § 34 -1 -1 01 (7 ) i n n e e d o f this Court’s assistance , as is require d by Tenne ssee Code A nnotated § 34-1- 126? 4. Whethe r the trial court err ed in r efusing to c ontinue the January 30, 2008 hearing on Ms. Trout’s Rule 59 motion, despite Ms. Trout’s abse nce due to her e merge ncy hospitalization? 5. Whethe r t he evidence is sufficie nt to support the appointment of a conservator of both the person and the estate o f M s

. T ro ut, i.e. , w he the r the tr ia l c ou rt e rr e d in faili ng to i mpo se the le a st r e stric tiv e a lte rn a tiv e s o n th e c on se rv a tor sh ip o f M s. Tr ou t?

Th e iss ue s r a ise d o n a

pp e a l by Ms. Tr ou t in vo lve dif fe ri ng stand ard s o f r e vie w:
Appe l l at e courts . . . may need to apply more than one standa rd of r eview w hen revie wing a lower court’s de cision appointing a conservator. To e xplain, a petition fo r the app oin tme nt o f a

c on se rv a tor

re qu ir e s th e low e r c ou rt

to m ake le ga l, f

a c tua l, and discre tiona ry determinations. Each of the se dete rminations require differ ent standards of

revie w.

Crum le y v . P e rd ue , No. 01-A-01-9704-CH-00168, 1997 W L 691532, *2 (Te nn. Ct. App. Nov. 7, 1997). Ge nera lly, a trial court’ s fac tual findings are revie wed de novo o n t h e re co rd with a pr e su mpt ionthat th os e fi nd ing s a re c or re c t unle ss the e vid e nc e pr e po nd e rate s othe rw ise

. Te nn . R. Ap p. P. 13( d)

. W he n the fa c tua l fin din gs are ba se d on the tr ia l cou rt ’s a sse ssm e nt o f the c re dib ili ty of the witnesse s, the appe ll ate c ourt will not dist urb those findings abse nt clear and convinc ing evidenc e to the contr ary. We lls v . T e nn. B d. of

Re ge nts , 9 S.W.3d 779, 783 (Tenn. 1999) . Clear and convinc ing evidence is evidence that “eliminates a ll serious or substantial doubt conce rning the

c or re c tne ss o f the c on c lus ion s to be dr a wn fr om the e vid e nc e . E vid e nc e satis fy ing thi s st a nd ardwi ll produce in the fac t-finder ’s mind a firm belief or convic ti o n re g ar ding the truth of the fa ctual propositions sought to be established by the evidenc e.” In re Groves
, 109 S.W.3d at 330 (c itations omitted).

The trial court’ s decision to appoint a conse rvator must be supported by clea r and c onvincing eviden ce

. See id. ; Tenn. Code Ann. § 34- 1-126 (2007) . Given this heightened standa rd, the appellate court is re quired to adopt the customary standard of revie w, dra wing “a distinction betwe en specific fac ts a

nd the combined we ight of these fa cts.” In reAudre y S. , 182 S.W .3d 838, 861 n.26-12-

(Tenn. Ct. App. 2005) (applying this adapte d standard in a proce edingwher e cle ar a nd convincing evidenc e is requir ed to te rminate pare ntal rig hts). Thus, in this appe al, we must dete rmine whe ther the combined we ight of

the trial cour

t’s finding s of fa ct, as supporte d by a p re p o n d er an ce of

the evidenc e in the re cord, e stablish clear ly and convinc ingly

that a conse rvatorship wa s war rante d. Se eIn reF.R .R. , I

II , 193 S.W .3d 528, 530 (Tenn. 2006) (termination of pa renta l rig hts case)

.
To the e x te n t th a t th e tria l c o u r t’ s d is c r e ti o n ar y d e c is io n s ar e c h a ll e n g e d o n ap p e a l, such dec i sions are r eviewe d for an abuse of that discretion. In r

e Cons e rv ato rsh ip o

f Dav e npo rt , No. E2004-01505-COA- R3-CV, 2005 WL 3533299, at *6 (Tenn. Ct. App. Dec . 27, 2005). A trial c ourt abuses its discretion when it rea ches a decision t hat i s not supported by the evidence, whe n it applies an incor rec t legal standar d, or whe n it reac hes a de cision that contra venes logic or employs re asoning that cause s an inj ustice t o the complaining party. Se e Ow e ns v . O we ns , 241 S.W.3d 478, 496 (Tenn. Ct. App. 2007).
In addition, this appeal involves the a pplication of ce rtain Tenne s see statutes. “ Statutory interpre tation is a question of law, whic h we r eview d e n ovo , w ithno pr e su mpt ionof c or re c tne ss given t o the courts below.” Sul livan v

. Edwards Oil Co. , 141 S.W.3d 544, 547 (Tenn. 2004) (citing Wa lla c e v . St

ate , 121 S.W.3d 652, 656 (Tenn. 2003) ).7
The r es pondent ha s t he r i ght t o: * * * (5 ) H a v e a n a tto rn e y a d li te m a p p o in te d to a d v o c a te th e in te re sts o f th e re sp o n d e n t.

T en n

. C o d e A n n

. § 3 4 -3-1 0 6 (5) (20 0 7 ).

-13- A N A L Y SIS
Ms. Trout first argue s that the trial co u rt er red in re fusing to appoint an attorne y ad litem (“A AL”) fo r h er u p o n h er r equest during the O ctober 15, 2007 hearing. It is undisput ed that the notice sent to Ms. Trout in July 2007 informed her of her right to an attorney upon r equest, a nd that she wa s subsequently informed by the GAL a s well. It is a lso undisputed that prior to the day of tria l in O ctober 2007, Ms. T rout made no reque st f or an attorney. The GAL “ consciously” r efr ained f rom reque sting an attorney on Ms. Trout’ s behalf be cause he did not fee l that it was nece ssary. On the day o f the he ari ng , th e tr ia l c ou rt re je c te d Do ug la ss’ re qu e st fo r a n atto rn e y f or Ms. Tr ou t, b e c aus e Douglass re prese nted daughter Susan and ther efor e did not have sta nding to make such a reque st on be ha lf of Ms. Tr ou t. T he tr ia l c ou rt fo un d tha t the c a se ha d be e n co nti nu e d o nc e be fo re a ndtim e ly

a c tio n w a s n e e de d to pr ote c t Ms . T ro ut’ s f inanc ia l in te re sts . De sp ite a ll of the se fa c tor s, in r e sp on se to direc t questioning by the GAL, Ms. Trout told the trial court that she “would like to re quest an attorney,” beca

use “e verybody e lse seem[ ed] to have one.” She reiter ated to the trial court, “ I’d like to have my attorne y prese nt.” Never t h eless, the tria l court maintained its re fusal to continue the he ari ng a ndapp oin t a n atto rn e y f or Ms. Tr ou t.

On app e a l, Ms. Tr ou t arg ue s that the tr ia l c ou rt e rr e d in re fu sin g to app oin t a n A AL , b e c aus e she had a statutory right to an AAL pur s u an t t o Section 34-3-106( 5), and bec ause Sec tion 34-1- 7 12 5( a ) m a nd a te s th e app oin tme nt o f an A ALup on the re qu e st o f a re sp on de nt:
(a ) T he c ou rt sha ll appoint an attorne y ad litem to repre s en t the re spondent on the

re sp on de nt’ s r e quest , up on the re c omm e nd a tio n o f the gu ard ia n a d li te m or if it appea rs to the court to be n ec es s ary to prote ct the rights or intere sts of the responde nt. The attorne y ad li tem shall be an advocate for the respondent in resisting the re quested re lief.

Tenn. Code Ann. § 34- 1-125(a ) (2007) (empha sis added). I n light of t he mandatory language in the statut e , M s. Tr ou t ma int a ins that th e tr ia l c ou rt wa s r e qu ir e d to app oin t a n A ALup on he r r e qu e st.

At the outset , we note that the trial court c orre ctly reje cted the r equest made by attorney Do ug la ss, wh o repres e nte d Su sa n. No thi ng in the pe rt ine nt s ta tut e s r e qu ir e s th e tr ia l c ou rt to consider suc h a re quest. Section 34-1-125( a) se ts out three eve nts that act u at e t h e t rial court’s appointment of an attorney ad litem, na mely, a re quest by the re spondent, a re commendation by the guardia n ad litem, or a determination by the trial court that such an a ppointment is necessary. Her e, there was no such recommendation by the GAL and no such determination by the t rial court. There was, howe ver, a

reque st by the responde nt, a lbeit a reque st ma de in the midst of the hearing. TheW e re c o g n iz e th a t t h e d u ty o f a n a tto rn e y a d li te m d iffe rs fro m th e d u ty o f a g u a rd ia n a d li te m ; t h e A A L is 8

“ to b e a n a d v o c a te f o r th e r e sp o n d e n t in r e sistin g th e r e q u e ste d r e lief ,” w h ile th e G A L d o e s n o t n e c e ssa rily a d v o c a te ag a in st t h e c o n serv ato rsh i p

. R ath er, i f t h e G A L b eli ev es th at a co n serv ato rsh i p w o u l d b e in t h e re sp o n d en t ’s b est in te re st, t h is o p in io n is re p o rte d to th e c o u rt.

-14- iss ue be c ome s w he the r, up on thi s r e qu e st, the tr ia l c ou rt wa s r e qu ir e d u nd e r s e c tio n 3 4- 1- 12 5( a ) t o
a djo urn th e he ari ng a ndapp oin t a n atto rn e y f or Ms. Tr ou t.
Ap pe lle e s a

rg ue that, d e sp ite the ma nd a tory lang ua ge in Se c tio n 3 4- 1- 12 5( a ), we mus t a lso

c on sid e r ano the r s ta tut ory p ro vis ionin the sa me c ha pte r, se c tio n 3 4- 1- 12 1, wh ic h s ta te s:
(a ) T he c ou rt

ha s b ro a d d isc re tio n to re qu ir e a dd iti on a l a c tio ns no t sp e c if ie d inthi s chapte r, and chapter s 2 and 3 of t his title as t he court deems in the be st interests of the minor or disabled pe rson and the minor’s or disabled per son’s property. The court

a lso ha s dis c re tio n to wai v e re qu ire me nts specifie d in this chapter, a nd chapte rs 2 and 3 o f this tit le if the court finds it is in the b es t i n t er es t s of the minor or disabled person to waive s uch requirem ents, particularly in those instances where strict

c om pli an c e wou ld b e too c os tly or plac e an undue bu rd en o n t h e fiduc iary or the minor or the disabled pe rson.
Tenn. Code Ann. § 34-1-121(a ) (2007) (empha sis added). The se statutes, they a rgue, should be r ead in p ar i m ate ria , that is, read to g et h er as a w hole and not re ad individually in a vacuum. See Aldridge v . Aldridge (In re Con servatorship of Aldridge)
, No. W2006- 02334-COA-R3-CV, 2007 WL 4170826, at * 6 (T en n

. C t

. App. Nov. 27, 2007). Rea ding these statutes together , Appellee s contend, lea ds to a conc lusion that S ection 34-1-1 21 gives the trial court discretion to waive the

re qu ir e me nt i n Se c tio n 3 4- 1- 12 5( a ) i f d oin g s o is in the re sp on de nt’ s b e st i nte re st.

Under the circ umstances in this case , we conclude that the t rial court did not err in declining to d e la y th e he ari ng a ndapp oin t a n A ALfo r M s. Tr ou t up on he r r e qu e st. As no te d by the tr ia l c ou rt , Ms. Tr ou t wa s no tif

ie d o f h e r righ ts t o a n atto rn e y w e ll i n a dv a nc e of the he ari ng a nd“ ha d a mpl e time to secure repr esentation,” but she did not do so. The trial court obse rved that the appointment of an A AL at that juncture would further delay resolution of t he case. It rec ognized that the situation require d immediate ac tion: “[T]he fac t of the matter is that the y’re going to be broke unle ss we do

so m et h i n g

. . . [W ]e’ve got a he morrhage going on and we’ ve got to put a tourniquet on it. . . . [J]ustice de layed is justice denie d.” In a ddition, the tria l c ourt had pre viously appointed a guar dian ad li te m “ to r e p r e s e n t a n d d e f e n d th e in te r e s t o f [ M s

. T r o u t]

. ” I n th is in s tan c e , th e GAL, John 8 W ilkins on , I II , g a ve the tr ia l cou rt a n obje c tiv e re po rt on the ma tte r, qu e sti on e d witn e sse s a ndfu lly participated in the hearing both as a repr esentative of Ms

. Trout and as an office r of the c ourt. We note that the trial c ourt also actively questioned the witnesses in an eff ort to gain a full under standing of the fa cts. Under t h es e ci rcumstanc es, we agre e with the trial c ourt’s dete rmination that any potential benef

it of appointing an AAL at that stage in the proc eedings wa s far outweighed by the detriment to Ms. Trout of delaying decisive action to pr otect her r emaining financ ial assets. Unde r these c ircumstance s, we c onclude that the trial co u rt did not err in re fusing to appoint an attorne y
a d li te m f or Ms. Tr ou t.-15-

We ne xt addre ss Ms. Trout’s argument that the t rial court erre d in appointing Ms. B obo, a resident of

Mississ ippi, as Ms. Trout’s conservator. Ms. Trout a rgues that, unde r Tenne ssee Code Annotated § 35- 50-107, Ms. Bobo is not qualified to serve a s her c onservator:
(a )( 1 ) A n y p e r s o n w h o i s n o t a r e s i d e n t o f t h i s s t a t e o r a n y c o rp o r a t i o n tha t is

auth oriz e d to e xe rc ise fi du c iary po we rs , but is not au tho ri z e d to do bu sin e ss i n th is state and doe s not a ctually maintain an office in this state, shall not be appointed or allowed to serve as t ru s t ee o f a c orporate or pe rsonal trust, per sonal repr esentative of an e state, guar dian, conse rvator for an inc ompetent per son, guardian f or a minor

or in any oth e r f

idu c iary capa c ity , u nle ss the re is a lso app oin te d a s a fi du c iary to

serve with such nonreside nt fiduciary, a person r esident i n this state or c orporation authorize d to do business in this state and that maintains an off ice in this state, exc ept as provided in subdivision (a)(2)

. . . . Tenn. Code Ann. § 35- 50-107(a )(1) (2007) ( emphasis adde d). Ms. Trout notes that this statute states expre ssly that non- re s i d ents “shall not be a ppointed or allowe d to serve a s . . . conser vator for an inc ompeten t pe rs on .” She ign or e s, ho we ve r, the statut ory p ro vis ion : “ e xc e pt a s p ro vid e d in subdivision (a )(2) .” Subdivis ion ( a)( 2)(F) states that “[ a]ny pe rson may serve as the conservator of the per son of an incompetent person, r egar dless of the re sidence of the c onservator.” Te nn. Code An n

. § 3 5 -50-107( a)( 2)(F). Thus, the pla in language in Sec tion 35-50-107(a )(2) (F) permits t he appointment of a non- resident c onservator. In light of thi s p ro v i s i o n , we f ind no error

in the trial

c ou rt ’s app oin tme nt o f M s. Bob o a s th e c on se rv a tor fo r M s. Tr ou t.

Ms. Trout next ar gues that the trial c ourt err ed in de termining that the evidenc e pre sented at the Octobe r 1 5
, 2 0 0 7 h earing clearly and convincingly esta blished that she was e ither fully or partially di sabled a nd in need of the trial court’s assistance , as is require d under Te nnessee Code An no ta te d § 34 -1 -1 26 . T his statut e pr ov ide s:

The c ourt must find by clear and convincing evidenc e that the responde nt is fully or partially disabled and that the responde nt is in need of assistanc e fr om the court befor e a f iduciary c an be a

ppointed.

A “ dis able d p e rs on ” is d e fi ne d a s:
[A ]n y p e rs on e igh te en (18 ) year s o f a ge or old e r d e te rm ine d b y th e c ou rt to b e in need of partial or f

ull supervision, protect i o n and assist ance by rea son of mental illness, physical illness or injury, developmental disa b i l i t y or other me ntal or physical inca

pacity.

Te nn . Co de An n. § 3 4- 1- 10 1( 7) . M s. Tr ou t a rg ue s th a t no e vid e nc e wa s p re sent ed to su pp ort a finding of mental illness, developmenta l disabilit y, or mental inca pacity; there fore , the trial court’s appointment of a c onservator over he r per son and prope rty must be reve rsed.

The analysis to be applied in c onservatorship pr ocee dings is set out in detail in In re Groves
, sup ra . In an opinion written by Judge (now Justice) Wil l iam C. Koch, Jr., the a ppellate c ourt-16-

observe d that “[t]he appointment of conservators in Tennessee no longer hinges on a determination of incompete ncy.” U nder c urre nt law, the court explained, “ the threshold question in eve ry
conservatorship proc eeding is whe ther the person for whom a conservator is sought is disabled or incapa citated.” I

n re Groves , 109 S.W.3d at 331. If the person is not dee med disabled or incapa citated, then a

conservator may not be appointed. In the event that the person is found to be either disable d or inca

pacitate d, “the c ourt must then determine whether the per son is fully or pa rt ia lly inc apa c itate d a ndwh e the r the inc apa c ity is t e mpo ra ry or pe rm a ne nt. ” Af

te r m akin g th is finding, the trial court must t hen dete rmine i f t he person needs supervision, assistance , or protec tion on either a

full-time or part-time basis. If so, then the trial court is t o ap p o i n t a conservator a nd “must specific ally ‘[e ]numerate the powe rs re m o v ed from the r espondent a nd vested in the

conservator.’ ” Id. (q uo tin g T e nn e sse e Cod e An no ta te d § 34 -3 -1 07 (2 )) . “ An y p ow e r n ot s pe c if ic a lly vested in the c onservator rema ins with the person for whom the conse rvator ha s been a ppointed.” Id.

As in I

n r e Groves , the trial court in the instant case wa s char ged with determining the capa city of Ms. Trout, an e lderly individual with certa in physical and menta l infirmities. The term “ca pacity” r elates to both func tional capa city and dec ision-making capa city. Id. at 334. The In r e Grove s court e xplained:

In ca ses such a s this one, capa city encompa sses two conc epts—functional capa city and dec ision-making capa city. Functional capaci t y relates to a per son’s ability to take car e of oneself and one’s pr operty. De cision-making ca pacity re lates to o ne ’s abil ity to make a nd c ommun ic a te de c isi on s wi th re ga rd to c ari ng fo r o ne se lf

a nd o n e ’ s p r o p e r t y

. T h e d i s t i n c t i o n b e t w e e n c o g n i t i v e c ap a c i t y a n d c o m p e t e n c e in

a c tua l pe rf

orma nc e is s ome wh a t art if ic ia l be c aus e fu nc tio na l ca pacity d e pe nd s, in part, on de cision-making ca pacity. Functional capa city to car e for oneself involves a per son’s ability to perform bas ic da ily a c tiv iti e s. Th e se a c tiv iti e s, c omm on ly r e fe rr e d to a s A DL s a ndIA DL s, include per sonal hygiene, obtaining nourishment, mobility, and addre ssing routine healthca re ne eds. An inquiry int o fu n ct i onal ca pacity see ks to ascertain whether a person ha s functional impairm ent t hat enda ngers physica l health or saf ety by rende ring the per son unable, e ither wh o l l y or partially, to care for him or he rself. Emph a sis sh ou ld b e pla c e d o n a pe rs on ’s abil ity to ca rry o ut e sse nti a l a c tiv iti e s in his

or he r e ve ry day e nv ir on me nt, no t in the la bo ratory, do c tor ’s offic e , o r c ou rt ro om. Th e e xa min a tio n sh ou ld fo c us on be ha vio r ov e r tim e , no t on e or a fe w sp e c if ic e ve nts whose pre judicial char acte r may lea d to a pre mature c onclusion. Functional capa city to car e for property involves a person’ s ability to manage persona l property, r eal pr operty, a nd financ es. Beca use a person’ s ability to mana ge pr op e rty d e pe nd s o n th e siz e , ty pe , a ndc omp le xity o f the pe rs on ’s ho ldi ng s, the fi rs t ste p in the inq uiry mu st b e to i de nti fy the pr op e rty th a t th e pe rs on ow ns or c on tr ols

. The foc us of an inquiry int o a per son’s functional c apac ity to manage prope rty is on whether a per son’s functional inability to make or c ommunicate decisions re garding the ac quisiti on, administration, or dispositi on of his or her proper ty may lead to the waste or dissipation of the property.-17- Dec ision-making capa city involves a per son’s ability (1) to take in a nd understand inf

ormation, (2) to proc ess the information in a ccor dance with his or her own per sonal values a nd goals, (3) to make a dec ision based on the information, and (4 ) t o c ommun ic a te the de c isi on . Re qu ir ing that de c isi on s b e te sted agai nst a p er s on’s own value s and goals re flec ts the importance of determining a person’s capa city in light of his or her own habitual standa rds of be havior and values, rather than the standa

rds and va lues of other s. A p er s o n does not lack de cision-making capa city mere ly because he or she doe s things that others either do not under stand or find disagre eable . Foolis h, unconventional, e cce ntric, or unusual choic es do not, by themselves, signal inca

pacity. Howe ver, c hoices that are based on de range d or delusional rea soning or irrational be liefs may signal dec ision-making incapac ity. An e valuatio n o f d e c isi on -m akin g c apa c ity fo c us e s c hie fl y o n th e pr oc e ss a person use s to make a decision and only sec ondarily on the de cision itself. It analyz es
a pe rs on ’s abil ity to und e rs ta ndpe rt ine nt i nf orma tio n a ndto r e a so n a nd de lib e rate about choice s particular to a spec ific dec ision. Twent y -five ye ars a go, we char acte rize d this capac ity as the “mental ability to make a rational decision.” Sta te De p’t of Huma n Se rv s. v . N

or the rn , 563 S.W.2d 197, 209 (Tenn. Ct. App. 1978). We use d the adjec tive “rational” to connote a decision b as ed on a proc ess of

rea soning, not necessa

rily a dec ision that the prevailing majority would view a s
acc eptable, se nsible, or re asonable

. Persons fre quently display differ ent levels o f decision-making a bility. A person may be simult aneously c apable and incapa ble with respe ct to differ ent types of de c isi on s. Cou rt s r ou ti nel y app ly d if fe re nt s ta nd ard s f

or de te rm ini ng c apa c ity de pe nd ing on the natur e of the de c isi on or

a c tio n in vo lved. Ac c or din gly , c apa c ity sh ou ld b e de te rm ine d o n a de c isi on -s pe c if

ic ba sis

.
Id. at 334-36 (f

ootnotes omitt ed).

In the c ase at bar, the tria l court utilized the fr amewor k in In r e Groves in determining whether Ms. Trout was a

“disabled pe rson” unde r the statute. Appar ently ref erring to the language in In re Groves , the trial court found t h at M s. Trout “lac ks the functional c apac ity and decisionmaking capa city to wholly care for herself or manage her property.” It conc luded that, bec ause of he r d isa bil ity , M s. Tr ou t w a s in ne e d o f a c on se rv a tor

fo r h e r p e rs on a ndhe r e state

. On app e a l, M s. Trout ar gues that the trial c ourt’s concl u s i o n i s i nconsistent with the report of Dr. Al- Tahe r, who op ine d th a t she wa s men ta lly c omp e te nt, a nd that she wa s abl e to make ma jor de c isi on s, pa

rt ic ula rl y with respec t to certa in medical matter s

. M s

. T ro u t al so points out t hat the GALfound her to be mental l y co m p et ent. M s. Trout claims that, while the r ecor d may include some e vidence of qu e sti on able fi na nc ia l de c isi on s, “ [f ]o oli sh , u nc on ve nti on a l, e c c e ntric , o r u nu su a l c ho ic e s d o n ot, by themselves, signal incapa city.” Id. at 335. Thus, Ms. Trout ar gues that there was not cle ar and convincing evide nce show ing that she is a disabled pe rson in need of a conse rvator.

We disa gree

. While Ms. T rout is me ntally c ompetent, the rec ord contains abundant evidence to support th e t ri al court’s conclusion that Ms. Trout lacke d sufficie nt functional and de cisionmaking capa city to car e for her ow n needs. The mos t co m pelling evidence is Ms. Trout’s own testimony, in which she exhibits almost no knowledge of h er assets or he r liabilities, with noA ft er t r i al
, D r

. A l

- T aher i s s ued a s t at em ent cl ar i fyi ng t hat hi s e v alu at i on f ocused on M s

. T r ou t ’ s genera l 9

m ent al s t at us, and t hat he di d no t “t ar get any qu es t i on s r el at i ng t o con s er vat ors hi p of her per s on

. ”

-18- appar ent under standing that she had $60,000 in cr edit car d debt or the r amifications of ta king on a $200,000 30-yea

r mortgage

.
Ms. Trout’s dec isions are not simply “foo li s h
, u n c o n v e n ti o n al, e c c e n tr ic
, o r u n u s u al c hoices.” Indee d, the proof shows that the financ ial decisions ar e not being made by Ms. Trout. Rather, they

are ma de by Sus a n w ho , a s th e tr ia l c ou rt fo un d, e xe rt e d “ do min io n and con tr ol” ov e r M s. Tr ou t. This has led to disastrous results, with most of Ms. Tr out’s monies being used to the detriment of Ms. Trout and to the bene fit of Susan and Ha wks. In addition, under Susan’s influence , Ms. Trout has bec o m e estranged f

rom her othe r daughte r, Cece lia, has re fused to ac cept c ertified ma il, has ref used to communicate with Buckner, a nd has misse d n u mer o u s d o c to r

a p p o intments. The evidenc e shows clea

rly and c onvincingly that Ms. Trout is disabled and i n need of the assistance of the c ourt’s “supervision, protection, and assistanc e.”
Ms. Trout argue s in the alternative that, even if a conservatorship was a ppropriate , the trial court e rre d in failing to lim it the scope of the conservatorship to he r property. She argue s that Dr. Al-Tahe r found that she was c ompetent to make medic al dec isions, and the GAL agre ed that she wa s comp et en tt o m ak e s o m e m ed i ca l d ec i s i o n s

. T h er ef o re , s h e c l ai m s , t h e c o n s er v at o rs h i p s h o u l d h ave 9 been limited to her pr operty a nd should not have bee n imposed over he r per son.
In conservatorship procee dings, the trial court ha s “an a ffirmative duty to ascertain and imp os e the le a st r e stric tiv e a lte rn a tiv e s u po n the dis able d p e rs on that are c on sis te nt w itha de qu a te protec tion of the disabled person and the disabled person’ s property.” Tenn. Code Ann. § 34- 1-127 (2007). In this c ase, the trial court below evaluated all of the evidenc e prese nted, as we l l as t he witnesses, and conclude d that it “wa s firmly of t he opini on that there was the ne ed of [ a] c onservator of the pe rson,” pa

rticularly with re spect to housing decisions, explaining tha t housing decisions impact both Ms. Trout’s financ es and he r over all well-be ing. The undisputed evide nce show ed that Ms. Trout must use either a walker or a w heelc hair, ha s COPD, c ongestive heart f ailure, and other medical conditions, and that she require s 24-hour car e seven days a wee k. Ms. T ro u t needs assistance with household tasks, such as c ooking, cleaning, a nd laundry. We a gree with Ms. Tr out that the trial court must determine the ar eas in whic h she re tains fu nc tio na l de c isi on -m akin g c apa c ity a nd lim it the sc op e of the c on se rv a tor sh ip a c c or din gly . W hil e
a conservatorship is clea

rly war rante d with respec t to Ms. Trout’s finance s and her housing, whether the conse rvatorship should include medic al dec isions presents a c loser question. As of the date of the hea ring, Ms. Trout was mentally competent to ma ke such decisions, and even the GAL indicated that sh e c ou ld do so

. Th e e vid e nc e a t tr ia l di d n ot i nc lud e e vid e nc e of sp e c if ic “ me dic a l de c isi on s” made that we re a dverse to Ms. Trout’s physical health. We rec ognize a lso that medical dec isions

are singularly perso nal ones, a nd the ability to make one’ s own medica l decisions should not be compromised unless cle arly ne cessa ry.

Neve rtheless, the pr oof below e stablished clea rly that Ms. T rout herse lf had not re tained any fu nc tio na l de c isi on -m akin g auth ority in any are a , bu t ha d ins te a d c e de d e ff e c tiv e ly a ll d e c isi on s in-19-

a ll a re a s to he r d aughte r S us a n. W hate ve r the re a so n, Sus a n’ s d e c isi on -m akin g c on sis te ntl y benef itted herself

more than h er m o t h er, w ith decisions that included consuming her mother ’s fi na nc ia l r e so ur c e s, pla c ing he r m oth e r i n h ou sin g th at cann ot be f inanc ia lly su staine d lo ng -t e rm , a nd e nc ou ra gin g h e r m oth e r’ s e str a ng e me nt f ro m he r o the r d aug hte r C e c e lia . I n c ir c ums ta nc e s in which Ms. Trout her self has not re tained func tional decision-ma k i n g authority, but has instead

surr e n d e r e d it to a p e r s o n w h o h a s c o n s is te n tl y ab u s e d it
, w e mu s t r e lu c tan tl y a g r e e w ith the trial court’s de cision to include Ms. Trout’s medical decisions within the scope of the conse rvatorship.

Fin a lly , w e a dd re ss Ms. Tr ou t’ s a rg ume nt that th e tr ia l c ou rt e rr e d inmov ing fo rw ardwi th the hea ring on her Rule 59 m o t i o n fo r a new trial despite being notified that Ms. Trout had bee n ho sp ita liz e d. Cou ns e l f

or Ms. Tr ou t r e qu e ste d p os tpo ne me nt of the he ari ng un til Ms. Tr ou t c ou ld attend, bec ause he expec ted that she would off er a dditional tes t i m o n y at the hea ring. Appellee s opposed the continuance
, arguing that a Rule 59 motion for a new trial does not r equire additional proof or testimony; rather, it is b as ed on the tria l court’s re view of the pre- existing recor d, supplemented with af

fidav i t s

. On appe al, Ms. Trout claims that she ha d a right to “[a ]ttend any hearing,” and that t h e fa i l u re to grant a c ontinuance so that she could attend violate s this right. Tenn. Code Ann. § 34- 3-106(4) . Howeve r, t h e trial c ourt was not re quired, by c ourt rule or otherwise, to conduct a hearing on the R ule 59 m otion at all. See Jerkins v. McKinn ey , 533 S.W.2d 275, 279 (Tenn. 1 9 7 6 ). T h e p u rp o se of a Rule 59 motion “is to provide the trial court with an opportunity to corr ect err ors befor e the judgment becomes f inal.” In re M.L.D
., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005) ( citing Bradley v. Mc Leod
, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998))

.
“ Th e mot ionsh ou ld b e g r an t e d w h e n th e c on tr oll ing la w c ha ng e s b e fo re thejud gme nt b e c ome s f ina l; wh e n p re vio us ly u na va ila ble e vid e nc e be c ome s a va ila ble ; or to c or re c t a c le ar e rro r of la w o r t o preve nt injust ice.” Id. In thi s ca se , the re wa s no indi c a tio n th a t ne w e vid e nc e ha d b e c ome a va ila ble that would require the t rial court to alter its dec ision. Rather, counsel f or Ms. Trout simply informed the trial court that he anticipated calling “Ms. Trout to te stify a s to c erta in issues for t h e C o urt’s consideration,” without elaborating on why her testimony was ne cessa ry

. Co u n s el for Ms. Tr out was prese nt at the hea

ring, and he fully repr esente d her interests with r espec t to the Rule 59 motion. We conclude that the trial court did not err in denying M s

. T ro u t’s reque st for a c ontinuance of the hearing on her Rule 59 motion. Th e de c isi on of

the tr ia l c ou rt

is af fi rm e d. Cos ts o n a

pp e a l are to b e ta xe d to Ap pe lla nt L ila M. Trout and he r sure ty, for which e xecution may issue, if ne cessa ry

___________________________________ HOLLY M. K IRBY, JUDGE