                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    September 1, 2010 Session

            IN RE CONSERVATORSHIP OF KARUBAH CARNAHAN

                   Appeal from the Chancery Court for Hamilton County
                    No. 09-G-128    W. Frank Brown, III, Chancellor




                    No. E2010-00102-COA-R3-CV - Filed March 9, 2011


In this conservatorship case, a daughter filed a petition asking the court to appoint her as the
conservator of her father, who had experienced cognitive decline after a stroke and required
full-time care in an inpatient facility. The father’s spouse protested the appointment of the
daughter as the conservator and requested that a neutral third party be appointed instead.
After a hearing, the trial court determined that the daughter was the appropriate person to
serve as conservator, and specifically enumerated the power to file for divorce on behalf of
the ward to the conservator. The spouse appeals. We affirm.1

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.

John P. Konvalinka and Katherine Higgason Lentz, Chattanooga, Tennessee, for the
appellant, Helen Exum Carnahan.

C. Crews Townsend, William A. Harris, and A. Chantelle Roberson, Chattanooga,
Tennessee, for the appellee, Misty L. Carnahan Guerry.

                                               OPINION

                                  I. FACTUAL BACKGROUND


        1
          Our first opinion in this case originally was filed on January 21, 2011. Appellant thereafter filed
a petition to rehear. The petition to rehear contained a meritorious assertion. Accordingly, we granted the
petition, withdrew our original opinion and now submit this substitute opinion.
        Misty L. Carnahan Guerry (“Conservator” or “Ms. Guerry”) filed a petition to be
appointed as the conservator of her father (“the Petition”). Her father, Karubah Carnahan
(“the Ward”), suffered a stroke in February 2009, impairing his cognitive and physical
abilities. He currently lives at Alexian Inn in Chattanooga, Tennessee, which is an inpatient
facility with a medical staff.

        In the Petition, Ms. Guerry alleged that the Ward was incapable of managing his own
affairs and of making sound decisions for his personal health and well-being. At the time of
filing the Petition, Ms. Guerry served as the Ward’s agent pursuant to a power of attorney
and durable power of attorney for health care. Ms. Guerry sought the appointment as the
Ward’s conservator in order to protect his estate. The Petition included a medical report by
the Ward’s primary physician, Dr. Kerry Friesen, and a consent form to the appointment of
Ms. Guerry as conservator from the Ward’s other daughter, Velma Carnahan Keplinger.

       About six months before his stroke, the Ward married Helen Exum Carnahan
(“Wife”). They lived together until a few weeks after the Ward’s stroke. In response to the
Petition, Wife filed a statement in favor of appointing a neutral third party as conservator and
requested a continuance to conduct discovery.2

       A hearing was held on October 20, 2009. The trial court denied Wife’s motion for a
continuance. After hearing the testimony of Ms. Guerry and Ms. Keplinger in addition to the
medical report of Dr. Friesen, the trial court appointed Ms. Guerry as the Ward’s conservator.
The trial court found that Ms. Guerry was the appropriate person to serve as conservator and
that she should be appointed “to protect the personal interests” of the Ward. The trial court
also specifically enumerated the power to file for divorce on behalf of the Ward to Ms.
Guerry. Thereafter, Wife filed a motion to alter or amend judgment and asked the court to
reconsider enumerating the power to file for divorce to Ms. Guerry. The trial court denied
the motion to alter or amend judgment. Wife then filed this timely appeal.

         This court issued a previous opinion in this matter, In re Conservatorship Carnahan,
in which we considered the Ward’s affidavit in reaching a decision. Wife filed a petition to
rehear and argued that it was improper for this court to consider the Ward’s affidavit because
it is hearsay. We agree. Nonetheless, after conducting another review of the record, we find
that the evidence does not preponderate against the trial court’s factual findings and supports
the appointment of Ms. Guerry as the Ward’s conservator.

                                                II. ISSUES

       2
           At some point after the Ward’s stroke, Wife filed a complaint for divorce and later dismissed it.

                                                     -2-
       Wife raises the following issues on appeal, which we restate:

       1. Whether the evidence supports the trial court’s appointment of Conservator and
       enumeration of the power to file for divorce on behalf of the Ward.

       2. Whether the trial court abused its discretion in denying Wife’s motion for a
       continuance to permit discovery.

       3. Whether the trial court abused its discretion in denying Wife’s motion to alter or
       amend judgment.

       Conservator raises two additional issues on appeal:

       1. Whether Wife has standing to appeal the trial court’s decision.

       2. Whether Wife’s appeal constitutes a frivolous appeal.

                              III. STANDARD OF REVIEW

        “[A] petition for the appointment of a conservator requires the lower court to make
legal, factual, and discretionary determinations[,]” each of which requires a different standard
of review. Crumley v. Perdue, No. 01-A-01-9704-CH00168, 1997 WL 691532, at *2 (Tenn.
Ct. App. M.S., Nov. 7, 1997). On appeal, a trial court’s factual findings are presumed to be
correct, and we will not overturn those factual findings unless the evidence preponderates
against them. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
For the evidence to preponderate against a trial court’s finding of fact, it must support
another finding of fact with greater convincing effect. Watson v. Watson, 196 S.W.3d 695,
701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71
(Tenn. Ct. App. 2000)). We review a trial court’s conclusions of law under a de novo
standard upon the record with no presumption of correctness. Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). We review discretionary determinations under
an abuse of discretion standard. Crumley, 1997 WL 691532, at *2.


                                     IV. DISCUSSION

                                         A. Standing




                                              -3-
        At the outset, we address Conservator’s contention that Wife does not have standing
to file an appeal.

       The doctrine of standing invokes whether a particular litigant is entitled to have a
court decide the merits of a dispute or of particular issues. American Civil Liberties Union
of Tennessee v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006) (citing Warth v. Seldin, 422 U.S.
490, 498 (1975); Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976)). Courts will
forego deciding a controversy if the plaintiff is not “properly situated to prosecute the action”
see Knierim, 542 S.W.2d at 808, and where the plaintiff has not “alleged a sufficiently
personal stake in the outcome of the litigation to warrant a judicial resolution of the dispute.”
See City of Brentwood v. Metropolitan Bd. of Zoning Appeals, 149 S.W.3d 49, 55 (Tenn. Ct.
App. 2004). To establish standing, the following three elements must be present: (1) a
distinct and palable injury; (2) the challenged conduct caused the injury; and (3) the court is
empowered to address that type of injury. City of Chattanooga v. Davis, 54 S.W.3d 248, 280
(Tenn. 2001); Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767-68 (Tenn. Ct. App.
2002).

        We disagree with Conservator’s contentions concerning Wife’s standing to participate
in this appeal. As the Ward’s spouse, Wife has a sufficient personal stake in the outcome of
the conservatorship case. In Wife’s view, the trial court enumerating Conservator with the
power to file for a divorce on behalf of the Ward caused an injury to her. Because the trial
court had jurisdiction to appoint a conservator in this case, it was the appropriate forum to
challenge who would serve in that capacity. Thus, we find that Wife has standing to
challenge the appointment of Conservator.

                               B. Appointment of Conservator

     Wife argues that the trial court erred in appointing Ms. Guerry as the conservator on
behalf of the Ward because she failed to satisfy the burden of proof for a conservatorship
case. Wife’s primary contention focuses on the trial court’s enumerating to Ms. Guerry the
power to file a divorce on behalf of Ward. Wife asserts that there was a lack of evidence
supporting the trial court’s decision to enumerate such a power.

      A conservator holds a fiduciary position of trust of the highest and most sacred
character. Grahl v. Davis, 971 S.W.2d 373, 377 (Tenn. 1998) (citing Meloy v. Nashville
Trust Co., 149 S.W.2d 73 (Tenn. 1941)). To appoint a conservator under Tenn. Code Ann.
§ 34-3-103, the trial court must make two determinations: (1) what is in the best interest of
the disabled person considering all relevant factors and (2) who, under the prioritized list, is
the appropriate conservator. Crumley, 1997 WL 691532, at *3. Tenn. Code Ann. § 34-1-
101(7) (2010) defines a “disabled person” as:

                                               -4-
     [A]ny person eighteen (18) years of age or older determined by the court to be in
     need of partial or full supervision, protection and assistance by reason of mental
     illness, physical illness or injury, developmental disability or other mental or
     physical incapacity.

In conservatorship cases, it is the petitioner’s burden to prove by clear and convincing
evidence that the proposed ward is a “disabled person.” In re Conservatorship of Groves,
109 S.W.3d 317, 330 (Tenn. Ct. App. 2003). With this heightened standard of proof, the
evidence should produce “a firm belief or conviction regarding the truth of the factual
propositions sought to be established by the evidence” in the fact-finder’s mind. Id. (quoting
Fruge v. Doe, 952 S.W.2d 408, 412 (Tenn. 1997)).

      Once the trial court finds that the proposed ward is “disabled” within the meaning of
the statute, the court must determine if it is necessary to appoint a conservator on a full-time
or part-time basis. See In re Conservatorship of Trout, No. W2008-01530-COA-R3-CV,
2009 WL 3321337, at *14 (Tenn. Ct. App. W.S., Oct. 15, 2009). After making such a
finding, the trial court then “must specifically ‘[e]numerate the powers removed from the
respondent and vested in the conservator.’” Groves, 109 S.W.3d at 331 (quoting Tenn. Code
Ann. § 34-3-107(2)). “Any power not specifically vested in the conservator remains with the
person for whom the conservator has been appointed.” Id. When appointing a conservator,
Tennessee law recognizes a priority of persons that a court shall consider in light of the best
interests of the disabled person. AmSouth Bank v. Cunningham, 253 S.W.3d 636, 642 (Tenn.
Ct. App. 2006) (citing In re Rockwell, 673 S.W.2d 512, 516 (Tenn. Ct. App. 1983)). Tenn.
Code Ann. § 34-3-103 (2007) provides:

     Subject to the court's determination of what is in the best interests of the disabled
     person, the court shall consider the following persons in the order listed for
     appointment of the conservator: (1) The person or persons designated in a writing
     signed by the alleged disabled person; (2) The spouse of the disabled person; (3)
     Any child of the disabled person; (4) Closest relative or relatives of the disabled
     person; and (5) Other person or persons.

      In the instant case, it is undisputed that the Ward is disabled and is in need of a
conservator. From our review of the record, the proof demonstrated the Ward’s need for a
conservator. The Ward lives in an inpatient facility. Dr. Friesen’s medical report detailed
the Ward’s physical and mental impairments. The medical report provided that the Ward
suffered from aphasia and cognitive decline due to the “recent cerebrovascular accident
[stroke].” The medical report also stated that the Ward could not manage his personal affairs
due to the aphasia and cognitive decline and that “a conservator is necessary to compensate

                                              -5-
for the patient’s impaired judgment. . . .” Both of the Ward’s daughters – Ms. Guerry and
Ms. Keplinger – also attested to the Ward’s physical and mental impairments.

     After hearing the evidence, the trial court determined that Ms. Guerry was the
“appropriate person to serve as conservator of the person and property for [Ward].” The trial
court enumerated the following powers to Ms. Guerry in her capacity as conservator:

      (a) Managerial power to make decisions and take actions with respect to the care
      and comfort of the Respondent [Ward], including decisions concerning food,
      clothing, shelter, and general welfare and health care decisions;

      (b) The right to admit to and give or refuse consent for treatment at a medical,
      psychiatric, or other health care facility;

      (c) The authority to protect Respondent’s [Ward’s] personal and property
      interests and to control the financial affairs of Respondent, including managerial
      power over Respondent’s income and assets, both real and personal; to buy or sell
      [the] same including the authority to invest and reinvest such assets; to give or
      refuse consent to enter into or terminate any contractual relationships; and to
      make disbursements for Respondent’s care, comfort, maintenance, and support;
      and

      (d) The authority to file for and obtain a divorce from Ms. Carnahan on
      Respondent’s behalf[.]

      It appears from the record that the trial court’s appointment of Ms. Guerry as
conservator of her father is supported by clear and convincing evidence. The Ward is
disabled and needs a conservator to make decisions concerning his medical and personal
needs. Due to Ms. Guerry acting as the Ward’s agent pursuant to the power of attorney and
the durable power of attorney for health care, she was very familiar with the Ward’s affairs
and needs. Ms. Guerry testified that she visits the Ward everyday at the inpatient facility and
that she takes care of all “his basic needs.” Due to the Ward’s cognitive decline, it is
necessary for another person to make decisions that promote his well-being including the
decision to remain married. Further, Ms. Guerry’s appointment as conservator for the Ward
satisfies the order of priority under Tenn. Code Ann. § 34-3-103.3 Therefore, we find that



        3
         Wife and Ward entered into a prenuptial agreement prior to their marriage. The prenuptial
agreement provides that both parties waive any right to seek the appointment of guardian or conservator for
the other.

                                                   -6-
Wife’s argument fails and conclude that the powers enumerated by the trial court to Ms.
Guerry were appropriate in light of the Ward’s disability.

          C. Motion for a Continuance and Motion to Alter or Amend Judgment

     This court reviews a trial court’s decision to deny a motion for a continuance under the
abuse of discretion standard of review. State Dep’t of Children’s Servs. v. V.N., 279 S.W.3d
306, 317 (Tenn. Ct. App. 2008) (quoting Blake v. Plus Mark, Inc., 952 S.W.3d 413, 415
(Tenn. 1997)). We also employ the abuse of discretion standard when reviewing an order
on a motion to alter or amend judgment. Morrison v. Morrison, No. W2001-02653-COA-
R3-CV, 2002 WL 31423848, at *2 (Tenn. Ct. App. W.S., Oct. 29, 2002) (citations omitted).
Under the abuse of discretion standard, we will uphold a trial court’s decision “so long as
reasonable minds can disagree as to propriety of the decision made.” Eldridge v. Eldridge,
42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted). Only when a trial court “applies an
incorrect legal standard or reaches a decision which is against logic or reasoning or that
causes an injustice to the party complaining” do we find that the trial court abused its
discretion. Id. In reviewing a discretionary decision, “appellate courts should begin with the
presumption that the decision is correct and should review the evidence in the light most
favorable to the decision.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App.
1999).

      In this case, Wife challenges two of the trial court’s discretionary decisions. First, she
contends that the trial court should have permitted her to conduct discovery and erred by not
granting the motion for continuance. Second, she argues that it was an abuse of discretion
for the trial court to deny the motion to alter or amend judgment. We find that Wife’s
arguments are without merit. Specifically, a motion to alter or amend judgment may be
granted when “(1) the controlling law changes before a judgment becomes final; (2) when
previously unavailable evidence becomes available; or (3) when, for sui generis reasons, a
judgment should be amended to correct a clear error of law or to prevent injustice.”
Townsend Scientific Trust v. Food Tech. Investors, L.P., No. W2005-00835-COA-R3-CV,
2006 WL 47433, at *3 (Tenn. Ct. App. W.S., Jan. 11, 2006) (citations omitted). A motion
to amend or alter judgment pursuant to Rule 59 of the Tennessee Rules of Civil Procedure
should not be granted “when the movant is simply seeking to relitigate a matter that has
already been adjudicated.” Morrison, 2002 WL 31423848, at *2.

      In Wife’s motion to alter or amend judgment, all of the arguments focused on
Conservator’s power to file for divorce. None of the arguments addressed the propriety of
the conservatorship or the Ward’s need for a conservator. The trial court denied the motion
and found that a divorce court would address Wife’s arguments regarding the grounds for
divorce. Nothing in the record suggests that the trial court abused its discretion in denying

                                              -7-
either motion. While Wife may disagree with the result of the trial court’s decision, we do
not find that the trial court applied an incorrect legal standard in reaching either decision.
Accordingly, we affirm.

                                    D. Frivolous Appeal

      Conservator requests that this court find Wife’s appeal frivolous and award damages
in the form of attorneys’ fees. To find an appeal frivolous, the appeal must be wholly
without merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d
583, 586 (Tenn. 1977); Industrial Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385
(Tenn. Ct. App. 1995). We do not find Wife’s appeal devoid of merit and, therefore, deny
the request.

                                    V. CONCLUSION

       The trial court’s order appointing Misty L. Carnahan Guerry as the conservator for the
Ward is affirmed in its entirety. Costs of this appeal are taxed to the appellant, Helen Exum
Carnahan. This case is remanded, pursuant to applicable law, for the collection of costs
assessed below.




                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




                                             -8-
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE

          IN RE CONSERVATORSHIP OF KARUBAH CARNAHAN

                          Chancery Court for Hamilton County
                                    No. 09-G-128




                  No. E2010-00102-COA-R3-CV - Filed March 9, 2011




                                           ORDER

        The appellant in this case filed a petition to rehear pursuant to Tenn. R. App. P. 39.
We have carefully reviewed the petition and have determined that it is well-taken as to the
issue raised and should therefore be granted. The appellant has correctly noted that this court
should not have relied on the affidavit of Karubah Carnahan in reaching its decision.
Accordingly, this court’s original opinion and judgment are hereby withdrawn and held for
naught. A new opinion will be filed.

      It is, therefore, ordered that the petition to rehear is granted and this court’s original
opinion is hereby withdrawn and held for naught.




                                     ____________________________________________
                                     JOHN W. McCLARTY, JUDGE

                                    ____________________________________________
                                    CHARLES D. SUSANO, JR., JUDGE

                                     ____________________________________________
                                     D. MICHAEL SWINEY, JUDGE
