# FILED
December 17, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT NASHVILL E

_______________________________________________________ ) IN RE: THE C ONSERVATORSHIP ) Sumner County Probate OF MATTHEW HURLINE , ) No. 96P-101 ) Appellan

t, ) ) VS. ) C.A. No. 01A01-9703-PB-00135 ) LONEY HUTCHINS, INDIVIDUALLY, ) and A.R.C., INC. d/b/a 21ST CENTURY ) LIVING SER

VICES , ) ) Third Party Plaintiff/Appellee, ) ) VS. ) ) SHEILA McNAMARA , ) ) Third Par

ty D efenda

nt/Appell ant. )

)

______________________________________________________________________________ From the Probate Court of Sumner County a t Gallatin. Honorable Tom E. Gray, Chancellor

Samuel F. Anderson , Nashville, Tennessee Dan R. Alexander , Nashville, Tennessee Attorney for Thir d Party Defend ant/Appe

llant. John R. Phillips, Jr. , Timothy R. Rector , PHIL LI PS & INGRUM, Gallatin, Tennessee Attorney for T

hird Party Plaintiff/Appellee.

OPINI ON FIL

ED: REVERSED A ND REMAN DED FARMER, J. CRAWF ORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)1 As will be discussed in more detail hereinafter, Hurline, individually , and the

conservatorship also appealed; however, suit was a ctually filed only

against McNamara, as the gu ar di an of

he r s on an d s ou gh t t o r ec ov er ag ai ns t h er pe rs on al ly. In 1983, at the age of

14, Matthew Hurline was involved in an accident and sustained a severe closed headinjury which resulted in cog nitive and behavioral disab il ities. Since that time, Matthew has required assistanc e with

his daily care . A 1996 neuro-psyc hological evaluation found him incap able of “living outside of a supervised setting ” a nd needing “at le ast minima l assistance for a

ll daily activities to maintain safety and focus on task.” On December 30, 1991, Matthew’ s mother, Sh eila McNamara, the appe

llant, wa s appointed his leg al guar dian by a Mary land cour t. This litig ation is
an attempt to determine whether Ms. McNamara can be held leg ally

and fina ncially accoun table to the person and facility

who has primarily provided Matthew’s da il y care since early 1992, the appelle es, Loney

Hutchins, individually, (Hutchins) and A.R.C., I nc. d/b/a 21st Century L iving Service s. The trial court entered a default judgment against McNamara in the amount of $107,760, for the care and services provided Hur line f rom Jan uary

1995 to Aug

ust 6, 1996 . The cou

rt also entered a judgme nt against Hurline, individually, and the Hurline conservatorship, in the amount of $115,260. Ms. McNamara has appealed from the judgmen t. 1 For the reasons expressed below, we reverse and remand.

Matth ew was admitted to 21st Century L iving Services (21st Century ) in Janua r y 1992. Upon admission, the following “Letter of Unders tanding ” was written and signed by Mc Na ma ra to th e f ac il it y:

IT IS UNDERSTOOD THAT 21 ST. C ENTURY LI VING SERVICES WIL

L PR OVID E 24 HOUR SUPERVISION, THREE MEA LS PER DAY, DAIL Y LEI SURE/WORK ACTIVITI ES AND OTHERSERVICES AS EXPLAI NED IN THE PROGRAM DESCRIPTION

FOR MATT HURLI

NE. THE COST IS $10,000 PER MONTH FOR THE FIRST FOU R MONTHS. AT THE END OFFOUR MONTHS MATT WIL L BE RE-EVA

LUATED TO DETERMINE

IF THE SUPERVI SION AND THE PROGRAM COST CAN BE REDUCED OR IF I T SHOULD BE CONTI

NUED AT THE SA ME R ATE . IT IS ALSO UNDERSTOOD THAT THE MONTH LY PROGRAM COST S WIL L BE PAID BY MA R Y SHERMAN, MATT’S GRAN DMOTHER, WHO IS [A] PART Y T O THIS UNDERSTA

NDI NG. [FEES] WILL BE DUE THE FI RST OF EACH MONTH. THIS UNDERSTA

NDI NG I S BETWEEN

21ST CENTU

RY LI VING SERVICES, SHEIL

A McNAMARA, AND MARY SHERMAN.2 In the letter, McNamar a also requests a monthly r eport from the facility

regarding her son’s pro gress.

3 The record indicates that McNamara was a resident of Colorado. L on ey, this must inc lude that althoug h I a m Matt’ s legal guardian I

am not financially re sponsible, Mary Sherman is an d i f s he re fu se s t hi s r es po ns ib il it y I must be notified immediately, as I cannot pa

y f or Matt[’s ] ca re , n ot by c ho ic e b ut by r ea li ty. 2

On Fe brua ry 20, 1996, Matthew wa s transferred from 21st Century to the Sumner Regional Medical Center ( Su mner) for in-patient surgery (cholecy stectomy). On F ebruary 26, Sumner sought to

dischar ge Matt hew fro m its faci lity

after h is succe ssf

ul recovery

from the procedu re. Appe llees refused re admittanc e of Matth ew citing financi al proble

ms.

After Sumner wa s unsucce ssful in at tempting to arra nge Ma tthew’s d ischarg e into McNamara’s care, it filed a petition, on March 27, 1996, to appoint a temporary conservator for Matthew (to provide for Matth ew’s disc harge and to othe

rwise act in his best

interest). The petition alleged Ap pellees’ refusal to readmit Matthew and that McNamara ha d “refused to take responsi bility for and ha[d] abandoned [Ma tthew].” Sumner further averred that McNamar a had “refus[ed] to take a

ny a ction” r egard ing Matt hew’s pla cement in a grou p home or institution as had been recomme

nded by his psy cholog ist. It was alleged that Matthew had incurred medical expenses in excess of $30,000 as a consequence of his fai l ure to be discharged on Febr uary 26. Sumner alleged that it did not have the ability or resourc es to provide the type of care Matthew required, as it was an acute care facility, and that it was no longer medically nec essary f

or Matthew to remain an in-patie nt. Finally, Sumner

alleged that it notified McNamara of the petition “by phone” on Ma rch 26 an d a ga in th e fol lo wi ng da y. 3

Sumner also filed a petition

request ing the c ourt for

an order to return Matthew t

o 21st Century. Sumner alleged that Hutchins had been Matthew’s “ de facto conservator” since 1992 andthat, as s uch, had

breach ed his fid uciary duty to Matthew

by r efusi ng his readmittance to the fa ci li ty. It was further alleged that Hutchins had received

“substantial” fees for Matthew’s care and was the d esigna ted pay ee on Mat thew’s so cial security

benefit checks.4 The pleading states that since the trial court’s April 1996 orde r Hutchins had readmitted Ma tt he w t o 2 1s t C en tu ry.

5 The record includes a letter from Hutchins to McNa mara, dated January

10, 1996, indicating that McNamara was notified in September 1994 that she would need to find alternative living arrangements for her son and that “repeated correspondenc e” had occurred betwee n the two reg arding

pay ment of the

incurred fees. T

he letter also req uests tha t McNama

ra repl y in writing with her plans for her son’s future ca re, both physically

and financially. After a hearing, the trial court entered an orde r f inding that Hutchins had a contractual relation ship with Matthew “through [his] legal guardian” a nd that a fiduciary r

elationship existed betweenthe two “by virtue of the fact that [Hutchins] became the designated pay ee on [Matthew ’s] social security be

nefit checks.” The court, therefor e, held that

Hutchins had a “fiduciary duty and respons i bi li ty” to find appropriate placement for Matthew to facilitate his discharge. The court
ex pr es sl y re se rv ed th e i ss ue of wh et he r H ut ch in s w as in br ea ch of hi s f id uc ia ry d ut y.

In addition to respo nding toSumner’spetition, A ppellee s filed a t

hird-pa rty complain t, in June 1996, (the cause of action with which we are now concerned) aga

inst McNamara, “as the legal guardian and mother of Matthew Hurline.” Appellees’ answer a cknowledges its failure to readmit Matthew to the facility in February

1996 4 on the basis that no funds, other than Matthew’s social security checks ($470 per mo nth), had be en recei ved by App ellee s in ex change for Matthew’s
carefor approximately the past 15 months. I t was further acknowledged tha t until November 1994, Matthew’s care was paid for by his grandmother, Mary

Sherman. At this time Matthew was 26 years old. It was averred that since cessation of the pay ments, Appellees had made numerous requests of McNamara to assume responsibility for the careand living arrangements of he r son and ward, but to no avail, and that

all such r equests had been “repudiated or ignored.” Appellees asserted that the unpaid balance of Matthew’s care a s of February 28, 1996 was $115,248.70. They requested that McNamara

be required to appear and

show cau se why sole responsibility for the care and supervision of her son should not be borne by her. It was further

argued that McNamara be held accountable for the charg es incur

red for Matthew’ s c are at

21st Century due to the brea ch of fiduciary

duty to her
son “by aba

ndoning him and failing to make alternative arr angements for him.” 5 Appellees sought dismissal o f any

claim for breach of fiduc iary

duty owed Mat

thew by them.

Pursuan tto Appellees’ comp laint, a show cause order w as enter

ed aga inst McNamar a
on June 6, 1996 requesting that she appear before the court on June 18, 1996. A hearing on the order6 This order also authorized Appellees “to deliver and place [Matthew] into the su pe rv is io n a nd co nt ro l o f [ Mc Na ma ra ]” an d t o t ra ns po rt hi m t o h er in Co lo ra do if ne ce ss ar y.
7 This amoun

t repre sents the

fees inc urred f or Hurline’s car

e from December

1994 to August 6, 1996. was subseque

ntly postponed

until J uly 2, 1996. On July 1, 1996, McNamara filed, pr o se, a document with the chancer

y c ourt, dat

ed June 27, 1996, re questing an “exten sion of time

to answer, postponement

of show c ause to A

ugust 19, 1996.” The court denied the “motion” for continuance, but allowed McNamara until August 19 to answer the complaint as to those issues left unresolved at th e J ul y 2 hearing. The latter hearing resulted in a

determination that McNamara, “as the g uardian andmother of Matthew Hurline,” should take responsibility for his care and supervision. The order
re li ev ed Ap pe ll ee s f

ro m a ny s uc h f

ur th er re sp on si bi li ty. 6

On August 6, 1996, McN amara f iled a moti on to dismissthe third- party complain t, alleging that the court lacked jurisdiction; that McNamara was not persona lly liable f

or her son’ s debts; and that t

here exis ted no wr

itten con tract de monstrati ng McNa mara’s r esponsibi lity

in this regard. The motion was denied on Aug ust 13.
Appellees then filed a “Motion for Default or Alternatively to Require Answer and Set ting of Final Hearing.” The motion recites that personal service of process of the thi rd-part y complaint was obtainedon McNamara on June 17, 1996 in Colorado and that other than the motion to dismiss, M cNamar

a had not a

nswere d or filed

any other re sponsive p leading s.

A hearin g occurred on November 19. On November 21, the trial court entered a default judgmen t again st McNamara in the amount of $107,760 for the services provided Matthew,
as outlined above, as well as the expenses of transporting Mat th ew to her. The court found that “such care and services were provided . . . by re ason of the breach of the fiduciary responsibility of [McNamara] for her

son and wa

rd.” The court a lso fou nd Appellees to have a “valid claim and judgment” against Hurline, individua lly, and the H

urline Con servato

rship and awarded Appellees $115,260. 7

On December 23 , 19 96, Mc Namara filed an ans wer to the co mplai nt, t hroughcounsel, and asserted, inter alia , the affirmative defenses that no contract existed between the parties

regarding Matthew’ s care, the statut e of limitations barred the actionand that there were insufficient facts to establish the vicarious liability of McNama ra for the charges incur

red by her son and ward. McNamara

also filed a motion for

new trial, stating, inter alia , that she didnot have sufficient notice of the November 19 hearing as she wa s not made aware of it until November 12. She further asserted that she “did not fully appreciate the seriousness” of the proceeding s since there was never a signed contract obligating her financially

for Matthew’s care. The motion was denied.

The issue s on appe al are id entified by t he appellant as f

ollows:

I. Whether th

e Appellants were given adequate or proper notice of the Ap

pell ee’ s Motion for Default Judgment and whether said lack of notice constitutes a violation of due process of law? II. Whether the Trial Court was in error by r uling [that] Sheila McNamara, as guardian for Matthew Hurline, was vica riously liable for the debts of the ward, Matthew Hurline?

We will addr

ess the second issue

first as we find it disp ositive. I t is argued that M s. McNamara, as the legal guardian of he r son, cannot be held financially responsible for the costs of his care where there exists no contractual a rrangement to that

effec t. 39 C.J.S. Guardian and Ward §66 (1976 ) states, in part pe rtinent:

The general rule is that a person who fur nishes support or maintenance to a ward acquires no enforcea ble claim ag ai nst the ward’s guar dian or the ward’s estate in the guar dian’s hands for pay ment, compe nsation, or reimbursement, unless there was an expressed or implied agreement with the guardia n therefor. . . . Howeve r, an inf ant ward ’s estate

is ultimately liable for

necessaries properl y furnished the infant, parti cularl y for educa tion and cl othi ng, andwhere theguardian neglects his duty with respect to maintenance, a third person who furnishes necessity items to the ward may

look to the ward ’s estate

for reim burseme nt.

39 C.J.S. Guardian and

Ward § 174 additionally

provides :

In the absence of statute pro vidin g otherwise, if recovery or relief is sought

against a minor ward

the suit or proceeding may not be brought against the gua rdian, and the guardian cannot be sued pers o nally

for debts due solely f

rom the ward. So in general, anaction at law does not lie agai ns t the guardian personally to recover fo r necessa

ries fur nished to t

he ward in the abs ence of

any express contract or promise on the part of the gua rdian; su ch actio n willnot lie on the the ory

of an impli ed promis e or i mp li ed a ss um psi t. In other words, relief with respect to debts of, or necessar ies furnished to, the ward, as to which the gu ar di an ha s n ot ob li ga te d h im se lf pe rs on al ly, mu st be sought in some appropriate proceeding other than a direct action to charge the gua

rdian personally.

Section 17 4 furthe

r states:

Action against ward . In a proper ca se an action may be maintainedagains ta

ward, who usually ma

y defend by

his guardian, and, if reco very

or relie f is sought against a min or ward, the suit or proceeding must be brought against him, in the absenc e of st atute providing otherwise.

It is clear in this cas e that Appellees brought suit against McNamar a “as the legal guardian and mother

of Matthew Hurline.” Appellees have not pursued a judgment ag ainst Hurline, individua lly or the conservatorship. The third-party complaint states that Appellees are entitled to
a judgmen t due to Mc Namara ’s “comp le te failure t o fulfill her fiduciary duty to Matthew by abandoning him and failing to make alternative arrangements for him.” We believe, however, that this duty runs to Matthew himself and his estate. Sec tion 2 of C.J.S. Guardian & Ward, defines “guardian ” as “aperson who legally has the care of the person or proper ty, or both, of another person, who is incompetent to act for himself. . . .” “[T]he

function of a gu ardians hip is to handle the person and property

of the ward, and

the who le theory of g

uardianship is to protect the ward during hi s p er io d o f i nc ap ac it y to p rotect himself. . . . A guardianship is designed to furthe r the ward’s well-being, not that of t h e guardian.” 39 C.J.S. Guardian and Ward § 3. With re spect to the propert

y of the ward , “the g

uardian is a trustee or fiduciary .” 39 C.J.S. Guardian and Ward § 69. Additionally, Chapter 11 of Title 34 of the Tennessee Code, pertaining to “G uardianships and Conserva t orships Generally ,” defines a “fiduciary ” as “a guardian, cog

uardian, conservator or coconservator . . . .”

Quite obviously, a gua

rdian may be r

emoved from his/her official capacity where there is a failure to properly carefor the ward. See 39 C.J.S. Guardian and Ward § 43. “The inf

ant, by his next friend or a relative or other person having a legitimate interest in the infant’s welfare,8 T.C.A. § 34 -11-123 a lso provid

es, in par t: Summons to appear for abuse, mismanagem ent or failure to perform -- Removal -- Submission of matter to district attorney general’s office. -- The co ur t i n i ts di sc re ti on ma y su mm on a f id uc ia ry t o a pp ea r b ef

or e t he co ur t a nd ma y, if cause be shown, remove such fiduciary for any a buse, mismanagement, neglect or failure to perform the duties of fiduciary as set forth in this chapter and chapters 12 and 13 of this title. may institute proceedings for the removal of guardian; but persons without the requisite interest may notcommence such

a proceeding.” 39 C.J.S. Guardian and Ward § 45a. 8 Appellees have not sought the removal of McNamara as her son’s guardian; they

seek only a money

judgment from her.

It does not

appear from

the record that Appellees seek any judgment from Hurline, individua lly or the conservatorship. Gann v. Burton , 511 S.W.2d 244 (Tenn. 1974), holds “that an incompetent

can be sued in his own name.” Gann , 511 S .W.2d at 247. In addition, Rule 17.01 T.R.C.P. currently pr

ovides that “[e]ve

ry action sh all be pr

osecute d in the na

me of the re al party

in interest
. . . .” A lthough t

he trial c ourt adju dged Ap pelleesto have a

“valid c laim and ju dgment” agains tHurline, individua lly, and the c onserva

torsh ip, suit was noticeably not filed a

gainst t hem. As related in Gann :

Moreover, in History

of a L awsuit, § 37 , p. 40 (8th Ed. 1963), the following statemen t appear s: If the suit is upon a contract or wrong of an infant, or a lunatic, such infa

nt o r l unatic must be made defendant in the writ, and not

his gua rdian. The guardian is not resp onsible f

or the co ntracts o f his infant or insane war d, a nd c ann ot be s ued on t hem . If the guard ian make s the cont ract, then he alo ne must be sued and not the ward.

Id
.

The contract, if there be any in this case, c annot be construed to obligate McNamara for the financial ob l igations regarding the c are and supervision of her son. The “letter of under stand ing” expressly states otherwise. Although we find the present circumstances be fore us most unfortunate, we are bound by the confines of the law when rul ing. To t his extent, i

t is equall y necessary to rever se the jud

gment a s to Hurline, individually, and the conse rvatorship as no actionwas take

n again st them.
In light of our holding, the f irst issue is pretermitted.

The judgment of

the trial court

is, accordingly , reversed and this cause remanded f or any further necessa ry procee dings. Co sts are a sse ssed against the appellees, for which execution may is su e i f n ec es sa ry.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)