                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 29, 2012 Session

    PATRICIA DEMAREST v. ESTATE OF RONALD JOSEPH KROLL

                  Appeal from the Probate Court for Wilson County
                 No. 10-P281, 09-P268    John Thomas Gwin, Judge


              No. M2011-02385-COA-R3-CV - Filed September 7, 2012


Alleged creditor filed a claim against the decedent’s estate seeking $524,160 for personal
services she claims to have provided to the decedent during the last ten months of his life.
She claims the decedent agreed that she would reside in his home and provide the decedent
with around the clock care. Upon motion for summary judgment filed by the administrator
of the estate, the probate court denied the claim, finding there was no contract or quasi-
contract between the alleged creditor and the decedent because the decedent was mentally
incapable of entering into a contract, and that the family service rule barred the alleged
creditor from recovering because the alleged creditor and the decedent were engaged to be
married at the time of the decedent’s death. We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Patricia T. Demarest, Mt. Juliet, Tennessee, Pro Se.

A. Ensley Hagan, Jr., Lebanon, Tennessee, for the appellee, Estate of Ronald Joseph Kroll,
and Administrator, Jennifer M. Porth.

                                        OPINION

        The decedent, Ronald J. Kroll, an elderly widower, had lived alone in his home in Mt.
Juliet, Tennessee since his wife died in 1999. The claimant, Patricia T. Demarest, was a
renter residing in a house next door to Mr. Kroll. In August of 2009, when Ms. Demarest’s
lease was terminated for failing to pay rent, she moved all of her belongings into the home
of Mr. Kroll. At the time, Ms. Demarest was 48 years of age; Mr. Kroll was 72 years old in
declining physical and mental health.
        Mr. Kroll’s neighbors became concerned for Mr. Kroll when they learned that Ms.
Demarest had moved in with him. Believing there was nothing they could do, the neighbors
contacted his step-daughter, Charlene Mae Schweinfurth, who was also Mr. Kroll’s attorney-
in-fact. Ms. Schweinfurth was living in Portland, Oregon at the time, but after speaking with
the neighbors Ms. Schweinfurth also became concerned for Mr. Kroll’s welfare and traveled
to Tennessee to check on him. After assessing the situation, Ms. Schweinfurth attempted to
remove Ms. Demarest from Mr. Kroll’s home but was unsuccessful. The primary reason Ms.
Schweinfurth was unsuccessful in removing Ms. Demarest was that Mr. Kroll and Ms.
Demarest stated they were in a romantic relationship and intended to marry.

       On September 5, 2009, approximately two weeks after Ms. Demarest moved in, Mr.
Kroll passed out in his home. He was immediately taken to the hospital where doctors
determined that he was suffering from malnutrition, dehydration, and pneumonia. He
remained in the hospital until September 17, 2009, when he was transferred to a skilled
nursing facility. Upon admittance, Mr. Kroll was examined by Dr. Luiz Fernandez, who
determined that Mr. Kroll still suffered from pneumonia, and furthermore suffered from
impaired cognition and had poor insight into his medical conditions. Dr. Fernandez
recommended that a conservator be appointed. On October 6, 2009, Dr. Edward Qualls
conducted a clinical psychological interview with Mr. Kroll, and confirmed that Mr. Kroll
suffered from mild to moderate cognitive impairment and was at risk for future development
of dementia. Dr. Qualls also recommended that Mr. Kroll be placed under a conservatorship.

      Based upon her observations of Mr. Kroll and the doctors’ recommendations, Ms.
Schweinfurth filed a Petition for Appointment of Conservator for Mr. Kroll on October 8,
2009. Michael Ferrell was appointed to serve as the guardian ad litem. When the court was
informed that Mr. Kroll contested the petition, the court appointed Jennifer Porth to serve as
Mr. Kroll’s attorney ad litem.

        Pursuant to recommendations from the guardian ad litem and Mr. Kroll’s doctors, the
court issued a Restraining Order prohibiting Mr. Kroll from marrying, executing a will or
trust, or otherwise conveying any property in excess of $500.1 Thereafter, an Agreed Order
was entered granting Ms. Porth authority to receive Mr. Kroll’s mail, pay his reasonable
living expenses, prepare checks for his signature, and generally handle and monitor his
finances.

      In early 2010, Mr. Kroll and Ms. Demarest approached Ms. Porth about the possibility
of compensating Ms. Demarest. As an accommodation, Ms. Porth agreed to pay Ms.


       1
         The Restraining Order notwithstanding, Mr. Kroll named Ms. Demarest the beneficiary of an
annuity in the amount of $30,000, which funds she received upon his death.

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Demarest $500 per month, beginning April 2010, pending court approval of the arrangement.
Ms. Porth wrote two checks payable to Ms. Demarest, each for $500, for April and May
2010. Ms. Porth presented the checks to Mr. Kroll for his signature but he refused to sign
them.

       Mr. Kroll died on July 11, 2010, prior to the court ruling on the Petition for
Appointment of Conservator. His surviving family consisted of his sister, who was in ill
health and passed away six months after his death, and his step-daughter, Ms. Schweinfurth,
the daughter of his deceased wife.

      Jennifer Porth filed a Petition for Appointment of Administrator on January 26, 2011.2
Ms. Porth (hereafter, “the Administrator”), was appointed administrator of the estate.

        On February 24, 2011, Ms. Demarest, who continued to reside in Mr. Kroll’s home,
filed a pro se creditor’s claim of $524,160 against Mr. Kroll’s estate in the Wilson County
Probate Court. She stated in the claim that Mr. Kroll hired her on August 25, 2009, the date
she moved in to his home, to serve as a “live-in caregiver” and housekeeper in exchange for
room and board, but that she was “quickly promoted” to an “around the clock Advocate and
Private Contractor.” She sought to recover payment for 168 hours of work per week for 78
weeks (13,104 total hours) at a rate of $40 per hour for, inter alia, “undressing, bathing,
shaving, . . . in-home physical therapy exercises, (daily) overseeing medication intake, . . .
cooking, cleaning, . . .” 3

        The Administrator timely filed an Exception to Ms. Demarest’s claim on April 18,
2011, asserting the claim was invalid for several reasons. Ms. Demarest then filed an Answer
and Amendment to her claim. On September 19, 2011, the Administrator filed a motion for
summary judgment, arguing, inter alia, that the undisputed facts established Mr. Kroll did
not have the mental capacity to enter into a contract or quasi-contract with Ms. Demarest, and
that the claim was barred by the Family Service Rule and the Dead Man’s Statute, Tennessee
Code Annotated § 24-1-203.

      In response to the motion for summary judgment and statement of undisputed facts
submitted by the Administrator, Ms. Demarest mailed to the probate court a press release


        2
         At the time, Ms. Porth did not know that Mr. Kroll had left a Last Will and Testament which
nominated his step-daughter as the administrator of his estate and which directed that she receive his entire
estate. Ms. Schweinfurth declined to serve as the administrator.
        3
         At the time of his death, Mr. Kroll’s estate was worth $302,998.71. Prior ot his death, he had
received $1,745/month from Social Security and a pension.

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from The Tennessean, a copy of a 2002 Massachusetts lawsuit in which Ms. Demarest was
involved, and a letter concerning a Wilson County Sheriff; however, she did not file a proper
response or statement of disputed facts as required by Rule 56.03 of the Tennessee Rules of
Civil Procedure.

       Ms. Demarest participated in the hearing on the motion for summary judgment, which
occurred on October 20, 2011. After hearing from the parties, the probate court granted the
Administrator’s motion, due to Ms. Demarest’s failure to provide a proper response and on
the merits of the motion. The order was entered on October 24, 2011, after which Ms.
Demarest filed a timely notice of appeal.4

                                                A NALYSIS

        This appeal arises from the grant of summary judgment. Summary judgment is
appropriate when a party establishes that there is no genuine issue as to any material fact and
that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v. Clarke,
113 S.W.3d 715, 721 (Tenn. 2003). It is appropriate in virtually all civil cases that can be
resolved on the basis of legal issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);
Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). It is not appropriate when
genuine disputes regarding material facts exist. See Tenn. R. Civ. P. 56.04. To be entitled to
summary judgment, the moving party must affirmatively negate an essential element of the
nonmoving party’s claim or show that the moving party cannot prove an essential element
of the claim at trial. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008).

        When reviewing the evidence, in this case affidavits, the appellate court first
determines whether factual disputes exist. Byrd, 847 S.W.2d at 214. If a factual dispute
exists, the court then determines whether the disputed fact is material to the claim or defense
upon which the summary judgment is predicated and whether the disputed fact creates a


        4
          Two issues arose in the probate court after Ms. Demarest filed this appeal. First, the probate court
initially approved a Uniform Civil Affidavit of Indigency for Ms. Demarest. However, on motion by the
Administrator, the court revoked Ms. Demarest’s indigency status and required her to pay a $2,500 appeal
bond due to the fact that Ms. Demarest failed to include in her affidavit of indigency that she had received
$30,000 from Mr. Kroll upon his death. By order dated December 20, 2011, this Court reduced the bond to
$1,000. Second, while the appeal has been pending, Ms. Demarest filed several motions in the probate court
which sought to have additional documents included in the record on appeal, including Mr. Kroll’s medical
records and “any and all demeaning and/or threatening written correspondences made by and between the
Honorable Judge John T. Gwin to the Judges of the Court of Appeals.” The Administrator filed an objection
to Ms. Demarest’s Statement of Record on January 10, 2012; the following day, the probate court approved
the Administrator’s Statement of the Evidence and listed the documents to be included in the certified record,
of which this Court also approves.

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genuine issue for trial. Id. at 214.

       A properly supported motion for summary judgment must show that there are no
genuine issues of material fact and that the moving party is entitled to judgment as a matter
of law. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); McCarley v. W.
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). If the moving party makes a properly
supported motion, then the nonmoving party is required to establish the existence of the
essential elements of the claim. McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215.

       In this case, the Administrator of Mr. Kroll’s estate filed a motion for summary
judgment asserting that there are no genuine issues of material fact relating to the creditor’s
claim and that Mr. Kroll’s estate is entitled to judgment as a matter of law. The Statement of
Undisputed Facts served therewith sets forth forty-three separate facts, each of which is
properly supported by proof in the record and which provide the factual basis for summary
judgment in favor of Mr. Kroll’s estate, unless Ms. Demarest filed the proper response to put
the material facts in issue. She did not. Instead, Ms. Demarest filed papers with the probate
court that had no bearing on the Statement of Undisputed Facts submitted by the
Administrator on behalf of Mr. Kroll’s estate; thus, she did not put at issue any of the
material facts upon which the Administrator relied. Accordingly, the facts submitted by the
Administrator are undisputed, including that Mr. Kroll was not competent to enter into an
enforceable contract with Ms. Demarest.

       Furthermore, the undisputed facts establish that Ms. Demarest is not entitled to
compensation under the family service rule. As this Court held in In re Conservatorship of
Groves, 109 S.W.3d 317 (Tenn. Ct. App. 2003), “[f]amily members are generally precluded
from recovering for services provided to their close relative because the law presumes that
these services were gratuitous.” Id. at 356 (citing Gorrell v. Taylor, 64 S.W. 888, 888 (Tenn.
1901); Estate of Cleveland v. Gorden, 837 S.W.2d 68, 71 (Tenn. Ct. App. 1992)). The court
in Groves further explained:

       This presumption is based on the recognition that family life abounds in acts
       of reciprocal kindness which tend to promote the comfort and convenience of
       the family, and that the introduction of commercial considerations into the
       relations of persons so closely bound together would expel this spirit of mutual
       beneficence and to that extent mar the family unity.

Id. (citing Key v. Harris, 92 S.W. 235, 237 (Tenn. 1905)).

      Although Ms. Demarest was not related to Mr. Kroll, the family service rule applies
because “persons in contemplation of marriage who are acting like family members are

                                              -5-
family members. Therefore, the personal services that these persons render to each other are
presumed to be gratuitous.” In re Estate of Marks, 187 S.W.3d 21, 30-31 (Tenn. Ct. App.
2005). It is undisputed that Ms. Demarest and Mr. Kroll stated they were in love and
intended to marry; thus the family service rule applies.

       The presumption is rebuttable “so family members may obtain compensation for their
services if they prove either that their relative agreed to pay for the services or that the
services were provided under circumstances reflecting that the relative receiving the services
knew that the relative providing them expected to be paid.” Id. (emphasis added). As noted
above, the undisputed facts show that Mr. Kroll was not mentally capable of making such an
agreement and Ms. Demarest failed to produce evidence establishing otherwise.

        Having reviewed the undisputed facts, we have determined, as the probate court did,
that the Administrator acting on behalf of the estate of Mr. Kroll, is entitled to judgment as
a matter of law. Accordingly, we affirm the grant of summary judgment to the Administrator
of the Estate of Mr. Kroll and the denial of Ms. Demarest’s claim.

                                      I N C ONCLUSION

       The judgment of the probate court is affirmed and this matter is remanded with costs
of appeal assessed against the appellant, Patricia T. Demarest.




                                                      ______________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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