                                                                                                  03/31/2017




                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                       March 22, 2017 Session

             IN RE CONSERVATORSHIP OF MARY ANNIE HAYNES

                   Appeal from the Chancery Court for Rutherford County
                     No. 15CV1186      Howard W. Wilson, Chancellor
                          ___________________________________

                                 No. M2016-00529-COA-R3-CV
                             ___________________________________

In connection with a conservatorship proceeding brought by appellant, the trial court
found, inter alia, that Appellant lacked standing to challenge the transfer of his mother’s
home to his brother, the appellee. Appellant appealed. Because Appellant failed to
properly raise the issue of his standing and failed to submit a proper request for attorney’s
fees in the proceedings below, we affirm the trial court’s judgment.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which BRANDON
O. GIBSON and KENNY ARMSTRONG, J., joined.

Gary N. Patton, Murfreesboro, Tennessee, for the appellant, Timothy Haynes.

Mark L. Haynes, Murfreesboro, Tennessee, Pro Se.


                                   MEMORANDUM OPINION1

                                              Background


1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.

          Tenn. Ct. App. R. 10
       On August 21, 2015, Petitioner/Appellant Timothy Haynes (“Appellant”) filed this
action in the nature of a conservatorship for his mother, Mary Annie Haynes. In addition
to the prayer for a conservatorship, Appellant requested the following: (1) that
Respondent/Appellee Mark Haynes (“Appellee”), Appellant’s brother, be removed as
Ms. Haynes’s power of attorney; (2) that an injunction be entered preventing the transfer
of certain real property to Appellee from Ms. Haynes, as well as preventing Appellee
from spending any of Ms. Haynes’s funds without court approval; and (3) that Appellee
be ordered to provide a detailed accounting of all assets and expenditures since 2008
when he allegedly seized control of Ms. Haynes’s property. Attached to the complaint
was a quitclaim deed from Ms. Haynes to Appellee, in which she transferred her real
property to him without consideration. In addition, Appellant filed an affidavit from a
family member alleging that Appellee had committed domestic violence toward Ms.
Haynes and that Ms. Haynes suffered from memory loss, confusion, and hallucinations.

       The trial court entered an order appointing a guardian ad litem for Ms. Haynes on
August 24, 2015. Ms. Haynes and Appellee were both sent written notice of the
proceeding. On September 3, 2015, the guardian ad litem filed its report, indicating that
Ms. Haynes was not aware of the conservatorship proceeding prior to meeting with the
guardian ad litem,2 but opposed the appointment of a conservator on the grounds that she
is not disabled and that her son, Appellee, has her power of attorney and cares for her.
Ms. Haynes stated to the guardian ad litem, however, that she wished for her property to
be divided equally between her sons at her death. The guardian ad litem recommended a
full psychological assessment on Ms. Haynes, as well as the appointment of an attorney
ad litem.

       On September 11, 2015, Appellee, by and through counsel, filed an answer and
counter-petition. Therein, Appellee “admitted that [Ms.] Haynes may be in need of a
[c]onservator” but asserted that he should be appointed as he serves as Ms. Haynes’s
durable power of attorney. Appellee otherwise denied that he had improperly seized
control of Ms. Haynes’s property and that there was a need for a detailed accounting.
Appellee asserted, however, that “he is willing to share appropriate records and
information regarding the affairs of [Ms.] Haynes since he began caring for his Mother
and managing her affairs.”

       After the guardian ad litem was ordered by the trial court to file a supplemental
report to comply with applicable law, a supplemental report was filed on September 25,
2015. Therein, the guardian ad litem noted that Appellee had recently purchased a burial
plot for Ms. Haynes. The report further noted that Ms. Haynes’s physician recommended
that Ms. Haynes be appointed a conservator to make medical, financial, and residential
decisions. The guardian ad litem noted, however, that the conservator need not make

       2
         The guardian ad litem stated in her report that she read the conservatorship petition and its
attachment to Ms. Haynes.
                                                -2-
financial decisions as Appellee still serves as Ms. Haynes’s power of attorney and it is
still her desire that he continue in that role. Finally, the guardian ad litem recommended
that, rather than choosing a brother to serve as conservator, the trial court appoint a third-
party conservator due to the “lack of trust between the parties.” The supplemental report
did not contain a recommendation that an attorney ad litem be appointed for Ms. Haynes.

       Appellant filed an answer to Appellee’s counter-petition on September 28, 2015.
Therein, Appellant alleged that Appellee had used his confidential relationship with Ms.
Haynes “to trick, deceive, and otherwise fraudulently induce her to transfer and convey
her only major asset, her home and land” to Appellee.

        On January 19, 2016, Appellee filed a motion to dismiss the petition to remove
him as Ms. Haynes’s power of attorney due to lack of standing. Therein, Appellee alleged
that Appellant had suffered no injury so as to convey standing on Appellant because
Appellee had “not even used the power of attorney in any improper or detrimental way
since it was granted to him by [Ms. Haynes].” Moreover, Appellee asserted that only the
personal representative of Ms. Haynes’s estate after her death has the power to challenge
the validity of a power of attorney, citing In re Estate of Glasscock, No. M2011-01725-
00A-R3-CV, 2012 WL 5383074 (Tenn. Ct. App. June 11, 2012). The motion to dismiss
also noted that Appellant’s petition to remove him as power of attorney contained no
allegations that Ms. Haynes was incompetent at the time that she named Appellee as her
power of attorney.

        The trial court held a hearing on the petition and counter-petition on January 14
and 19, 2016. By order of February 12, 2016, the trial court ruled that Ms. Haynes was a
person with a disability in need of a conservator and that it was in her best interest that
Greater Nashville Regional Council, Public Guardianship Program for the Elderly to be
appointed as conservator of both her person and her property. The trial court found that
because of Appellee’s “prior violations of the fiduciary duty owed to his mother, he is
without the necessary ability to continue serving in that capacity.” Specifically, the trial
court noted Appellee’s “long-standing pattern of violent and non-violent criminal
activity, as well as mismanagement of Ms. Haynes[’s] financial assets[.]” The trial court
therefore removed Appellee as Ms. Haynes’s power of attorney.

      The trial court next ruled that Appellee had wrongfully withdrawn $4,900.00 from
Ms. Haynes’s bank account, which funds were not used to pay for her future funeral
expenses. The trial court therefore ordered Appellee to return the $4,900.00 “minus the
amount paid toward . . . funeral expenses,” and to file with the court “receipts verifying
the amounts paid toward funeral expenses” within thirty days, or else pay the entire
amount. The trial court further ordered Appellee to provide an accounting of Ms.
Haynes’s finances from the time he became her power of attorney in 2008.


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        The trial court next found that Appellant “is without the requisite standing to
request the rescission of the transfer” of Ms. Haynes’s real property to Appellee.
Specifically, the trial court ruled that only the donor during his or her life or the donor’s
heirs or personal representatives after the donor’s death have standing to challenge the
validity of such a transfer. The trial court further ruled that, “[a]ssuming, arguendo,” that
Appellant had standing to challenge the transfer, although Appellee stood in a
confidential relationship with Ms. Haynes, any presumption of undue influence regarding
the transfer of the land was rebutted by evidence that: (1) Ms. Haynes was lucid and
aware of the ramifications of the transfer; and (2) Ms. Haynes consulted an attorney
about her decision to transfer the property. The trial court therefore ruled that the
transaction was fair despite the confidential relationship. The trial court noted, however,
that the transfer of the property to Appellee appeared intended “to keep Ms. Haynes’s
estate from the hands of the TennCare [B]ureau.” The trial court therefore informed the
parties that “TennCare shall be notified of these proceedings so that they may take any
action deemed appropriate.” Nothing in the record indicates that TennCare has taken any
action pending this appeal.

        Appellant filed a motion to alter or amend on or about March 7, 2016. Therein,
Appellant argued for the first time that he was entitled to attorney’s fees under the
Tennessee Adult Protection Act, Tennessee Code Annotated section 71-6-120(d).
Thereafter, on March 10, 2016, Appellee filed a notice of appeal to this Court. The trial
court held a hearing on the motion to alter or amend but ultimately denied the motion by
order of April 29, 2016. On April 21, 2016, Appellee’s counsel was allowed to withdraw
from the representation, and Appellee thereafter represented himself pro se, both in the
trial court and on appeal.

       On April 25, 2016, the trial court entered an order compelling Appellee to
“immediately” comply with the previously ordered accounting and to provide copies
thereof to the conservator and all interested parties. The trial court also reduced the
$4,900.00 award against Appellee to judgment with no further contingencies. On May 24,
2016, the trial court entered an order permitting the guardian ad litem to withdraw and
approving her fees.

       The trial court entered a second order discussing the accounting on July 5, 2016.
Therein, the trial court noted that a hearing had taken place on May 24, 2016, in which
Appellee “submitted to the [c]ourt that he was in possession of the accounting
documentation and that he would file the accounting documentation by the end of the
day[.]” The trial court further ruled that the matter would be reset for a further hearing on
June 29, 2016, “at which time, if the accounting is not complete, that [Appellee] shall
appear and show cause why if any, he has for failing or refusing to comply with the
Orders of the [c]ourt.” On June 20, 2016, Appellee filed a handwritten document
purporting to be a motion to dismiss the case. Appellee filed a supplement to his motion
on June 29, 2016. Attached to this filing was a handwritten document captioned “In re
                                             -4-
Mary Haynes Accounting.” Therein, Appellee listed several expenses purportedly paid
from Ms. Haynes’s funds, including payments to Ms. Haynes’s nursing home, daily meal
costs, which included “mileage, purchase, [and] labor,” as well as “labor” totaling
$4,877.68. Attached to the hand-written accounting was a withdrawal receipt from Ms.
Haynes’s bank account for $4,877.68.

        On September 23, 2016, this Court entered an order dismissing Appellee’s appeal
for failure to file a brief. The Court noted, however, that the appeal would “proceed as to
the issues to be raised by Timothy Haynes,” and that he would be designated as
Appellant. Per a December 22, 2016 order of this Court, the case was “submitted to the
court for a decision on the record, the brief of Timothy Haynes and the oral argument of
Timothy Haynes[.]” The only issues in this appeal are therefore those raised by
Appellant.3

                                           Issues Presented


        3
           At oral argument, the issue of the finality of the trial court’s judgment was raised, sua sponte,
by this Court with regard to the trial court’s order for Appellee to provide an accounting of his use of Ms.
Haynes’s funds from 2008 until he was removed as her power of attorney. See Hinson v. Beechview
Corp., No. 01A01-9709-CH-00498, 1998 WL 272794, at *1 (Tenn. Ct. App. May 29, 1998) (holding that
the case was not final because “the record contains no evidence that the accounting was ever
accomplished or that final, enforceable judgment was ever rendered thereon” but nevertheless considering
the appeal by waiving the finality rule using Rule 2 of the Tennessee Rules of Appellate Procedure); see
also McQuade v. McQuade, No. M2010-00069-COA-R3-CV, 2010 WL 4940386, at *4 (Tenn. Ct. App.
Nov. 30, 2010) (“[S]ubject matter jurisdiction may be raised at any time by the parties or by the appellate
court, sua sponte on appeal.”).
         Our review of the record indicates, however, that the underlying case is final for purposes of this
appeal. First, we note that Appellee indeed filed what purported to be an accounting on June 29, 2016.
Nothing in the record indicates that Appellant objected to the accounting or that any further hearings were
to be held on the issue. Rather, at oral argument, Appellee indicated that this claim had been abandoned
and a separate lawsuit had been filed against Appellee by the conservator, which had resulted in a
judgment against Appellee. The trial court also reduced its award of $4,900.00 against Appellee to
judgment on April 25, 2016. Finally, we note this Court’s previous statement in a similar case:

        To determine finality, the Court must look to whether the order is temporary and whether
        any review is pending in the Trial Court. This Court has previously ruled that an order
        appointing a conservator is final even though it is subject to modification by the Court
        pursuant to statute, because it is not temporary and no review is pending. In re Estate of
        Rinehart, 363 S.W.3d 186 (Tenn. Ct. App. 2011). The same review could be applied to
        orders awarding attorney’s fees, or any other orders entered in a conservatorship case,
        which often spans many years.

Conservatorship of Acree v. Acree, No. M2011-02699-COA-R3-CV, 2012 WL 5873578, at *4 (Tenn.
Ct. App. Nov. 20, 2012), perm. app. denied (Tenn. Mar. 20, 2013). As such, this Court is now of the
opinion that the trial court’s judgment is final and this Court therefore has jurisdiction to consider this
appeal.
                                                   -5-
       Appellant raises three issues, which are taken, and slightly restated, from his
appellate brief:

       1. Did Appellee, who had a confidential fiduciary relationship per se with
          his Mother Ms. Haynes, prove by clear and convincing evidence that the
          transfer of two tracts of real property was a fair transaction by rebutting
          the presumption of invalidity from undue influence on the basis of Ms.
          Haynes receiving proper and competent legal advice?
       2. Is the Appellant as petitioner entitled to recover expenses, including
          reasonable attorney’s fees under Tennessee Code Annotated section 34-
          1-114 from the property of Ms. Haynes?
       3. Is the Appellant as petitioner entitled to recover expenses, including
          reasonable attorney’s fees under the Tennessee Adult Protection Act,
          Tennessee Code Annotated section 71-6-120(b) from Appellee, for his
          fraudulent use of his power of attorney to take funds of Ms. Haynes for
          his personal use and benefit?

                                                 Analysis

       Appellant’s first issue concerns the trial court’s refusal to set aside the allegedly
fraudulent transfer of Ms. Haynes’s real property to Appellee by quitclaim deed. As is
evident from Appellant’s stated issue above, Appellant specifically argues that the trial
court erred in ruling that Appellee rebutted the presumption of undue influence created
by Appellee’s confidential relationship with Ms. Haynes by clear and convincing
evidence.

       As we perceive it, however, the trial court’s ruling did not rest on its findings
regarding undue influence but on the trial court’s initial determination that Appellant
lacked standing to challenge the transfer while Ms. Haynes remains living. The trial court
only alternatively ruled that “[a]ssuming arguendo,” that Appellant had standing, the
presumption of undue influence had been rebutted.

        Appellant did not, however, raise the trial court’s ruling that he lacks standing in
the issues presented section of his appellate brief. When the deficiency was noted by this
Court at oral argument, Appellant insisted, however, that this issue was raised in his
brief.4 Respectfully, we cannot agree. First, it is well-settled that an issue is generally
waived when it is argued in the body of the brief but not designated as an issue on appeal.
See, e.g., State v. Freeman, 402 S.W.3d 643, 653 (Tenn. Ct. App. Oct. 16, 2012; Bunch
v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App. 2008); Childress v. Union Realty Co.,
97 S .W.3d 573, 578 (Tenn. Ct. App. 2002) (citing Stewart v. Richmond, Shelby Law
No. 50, 1987 WL 28061 (Tenn. Ct. App. Dec. 18, 1987)) (“We consider an issue waived

       4
           Counsel for Appellant admitted, however, that he “did not considerably raise it on my issues.”
                                                    -6-
where it is argued in the brief but not designated as an issue.”). Moreover, we cannot
agree that this issue was sufficiently raised in the body of Appellant’s brief. Standing is
mentioned twice in Appellant’s brief. First, with regard to Appellant’s argument that he is
entitled to attorney’s fees under Tennessee Code Annotated section 34-1-114, Appellant
states:

        [T]he Court was of the opinion that the Appellant Timothy Haynes lacked
        standing to bring suit to recover his mother’s real and personal property for
        her benefit since Ms. Haynes was still alive. The Court did not provide any
        findings of fact or conclusions of law in denying Appellant recovery of his
        expenses as provided pursuant to [section] 34-1-114.

Next, again in the section of Appellant’s brief dealing with attorney’s fees,5 Appellant
asserts that he “has standing as next friend to recover in a civil action” under the
Tennessee Adult Protection Act, Tennessee Code Annotated section 71-6-120. Neither of
these bare assertions, however, in any way addresses Appellant’s standing to challenge
the transfer of Ms. Haynes’s real property to Appellee. Rather, both arguments concern
the award of attorney’s fees. Furthermore, other than bare citation to statutory law,
Appellant provides this Court with no analysis or citation to legal authority with regard to
the trial court’s dispositive ruling that he lacked standing. “It is not the role of the courts,
trial or appellate, to research or construct a litigant’s case or arguments for him or her,
and where a party fails to develop an argument in support of his or her contention or
merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l
Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010). “‘Courts have routinely
held that the failure . . . to cite relevant authority in the argument section of the brief as
required by Rule 27(a)(7) constitutes a waiver of the issue.’” Forbess v. Forbess, 370
S.W.3d 347, 355 (Tenn. Ct. App. 2011) (quoting Bean v. Bean, 40 S.W.3d 52, 55–56
(Tenn. Ct. App. 2000)); see also Tellico Village Prop. Owners Ass’n, Inc. v. Health
Solutions, LLC, No. E2012-00101-COA-R3-CV, 2013 WL 362815, at *3 (Tenn. Ct.
App. Jan. 30, 2013) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App.
2001)) (“‘Where a party makes no legal argument and cites no authority in support of a
position, such issue is deemed to be waived and will not be considered on appeal.’”).
Given that Appellant failed to raise the trial court’s ruling that he lacked standing as an
issue on appeal, failed to address standing in his appellate brief except with regard to the
award of attorney’s fees, and failed to make more than a skeletal argument concerning
standing anywhere in his brief, we deem any consideration of Appellant’s standing to
challenge the transfer of property waived. Given the trial court’s uncontested ruling that
        5
           Specifically, this section of Appellant’s argument is captioned as “Appellant is entitled to
recover expenses, including Petitioner's attorney fees, under TCA § 71-6-120(d) from Appellee [] for his
fraudulent use of his Power of Attorney to take funds of Ms. Haynes for his personal use and benefit.”
(emphasis added). Clearly, this caption simply does not concern Appellant’s request that the trial court set
aside the transfer of the real property, but rather whether Appellant should be awarded attorney’s fees and
expenses for the recovery of “funds” expended by Appellee through his role as power of attorney.
                                                   -7-
Appellant lacked standing to challenge the transfer, we need not consider the alternative
basis for the trial court’s ruling.6

                                                  II.

       Appellant next asserts that the trial court erred in failing to award Appellant
attorney’s fees under Tennessee Code Annotated section 34-1-114 with regard to the
conservatorship proceeding, as well as under Tennessee Code Annotated section 71-6-
120(b) for the recovery of Ms. Haynes’ property from Appellee. Under section 34-1-114,
“the attorney’s fee for the petitioner, may, in the court’s discretion, be charged against the
property of the respondent,” in certain circumstances. Appellant thus argues that his
attorney’s fees should have been paid out of Ms. Haynes’s estate. In contrast, under
section 71-6-120(b):

       An elderly person or disabled adult in that person’s own right, or by
       conservator or next friend, shall have a right of recovery in a civil action for
       compensatory damages for abuse or neglect, sexual abuse or exploitation as
       defined in this part or for theft of such person’s or adult’s money or
       property whether by fraud, deceit, coercion or otherwise.

Thus, Appellant argues, under section 71-6-120(b), he should have been awarded
attorney’s fees directly against Appellee.

        Respectfully, we cannot agree. First, we note that Appellant’s petition that
initiated this litigation did not seek an award of attorney’s fees under either statute.
Instead, Appellant first raised his request for attorney’s fees in his motion to alter or
amend the trial court’s judgment under Rule 59 of the Tennessee Rules of Civil
Procedure. “A Rule 59 motion should not be used to raise or present new, previously
untried or unasserted theories or legal arguments.” In re M.L.D., 182 S.W.3d 890, 895
(Tenn. Ct. App. 2005) (citing Local Union 760 of Intern. Broth. of Elec. Workers v.
City of Harriman, No. E2000-00367-COA-R3-CV, 2000 WL 1801856, at *4 (Tenn. Ct.
App. Dec.8, 2000), perm. app. denied (Tenn. May 14, 2001)). Furthermore, this Court
has previously held that a request for attorney’s fees is waived where the parties did not
stipulate that attorney’s fees would be considered after the resolution of other issues and
no affidavit of fees was submitted during trial. See Rountree v. Rountree, 369 S.W.3d
122, 134 (Tenn. Ct. App. 2012) (citing Seals v. Life Investors Ins. Co. of America, No.
M2002-01753-COA-R3-CV, 2003 WL 23093844, at *4 (Tenn. Ct. App. Dec. 30, 2003)
(noting that the issue of attorney’s fees was not waived by the party’s failure to submit an
affidavit of fees during trial only because the parties “stipulated the proof of attorney’s
fees could be submitted by affidavit after resolution of the [substantive] issue”)). The

       6
          We express no opinion as to the correctness of the trial court’s ruling that Appellant lacked
standing to contest the transfer.
                                                 -8-
record contains no stipulation between the parties that the issue of attorney’s fees was to
be decided after the resolution of the other actions in this case. As such, Appellant’s
failure to timely request an award of attorney’s fees and failure to submit an affidavit in
support of his attorney’s fees request during the trial court’s proceedings is fatal to our
review in this appeal.

                                       Conclusion

       The judgment of the Rutherford County Chancery Court is affirmed, and this
cause is remanded to the trial court for all further proceedings as are necessary and are
consistent with this Opinion. Costs of this appeal are taxed to Appellant, Timothy
Haynes, and his surety.


                                                 _________________________________
                                                 J. STEVEN STAFFORD, JUDGE




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