                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                 ________________________________________________

SUSIANA DIXON, bnf & Niece of
MARTHA J. MOSES,

       Plaintiff-Appellant,
                                                     Shelby Chancery #101766-3
Vs.                                                  C.A. No. 02A01-9504-CH-00069

JOHNNIE STREET,

       Defendant,                                                       FILED
ROBERT C. IRBY,                                                           August 8, 1996

      Guardian ad litem-Appellee.                        Cecil Crowson, Jr.
___________________________________________________________________________
                                                          Appellate C ourt Clerk

                  FROM THE CHANCERY COURT OF TENNESSEE
               FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS

              THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR



                         James M. Gulley, R. Linley Richter, Jr.,
                     Law Offices of Seymour S. Rosenberg, of Memphis
                                       For Appellant

                              Ronald D. Krelstein of Memphis
                                      For Appellee



                              VACATED AND REMANDED

                                       Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.

CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE
    This case involves an award of guardian ad litem fees. Appellant, Martha J. Moses,

conservator of the person of Susiana Dixon, appeals the trial court’s order made final pursuant

to Rule 54.02 awarding a money judgment against her in the sum of $3,127.00 in favor of
appellee Robert C. Irby, guardian at litem for Susiana Dixon.

       On August 4, 1992, Martha Moses, niece of Susiana Dixon, filed a Petition for

Annulment of Marriage and Appointment of Conservator seeking to annul the marriage between

Ms. Dixon and Johnnie Street, and to have herself named as Ms. Dixon’s conservator. Ms.

Moses alleged, inter alia, that Ms. Dixon was not competent to enter into a marriage contract,

that Mr. Street mistreated Ms. Dixon, and that he coerced her into taking out a second mortgage

on her home for his personal benefit. The court appointed Robert C. Irby, a practicing attorney,

guardian ad litem for Ms. Dixon. By order entered December 2, 1992, the court appointed Ms.

Moses conservator and directed Mr. Irby to continue to act as Ms. Dixon’s guardian ad litem.

Irby was also authorized to bring any necessary legal action to recover Ms. Dixon’s property.

       On January 10, 1994, Mr. Irby filed a Petition for Instructions of the Court seeking an

accounting from Ms. Moses and direction from the court as to how Ms. Dixon’s social security

check should be applied. An order was subsequently entered providing that Mr. Irby would

receive Ms. Dixon’s social security checks, withhold $200.00, and use the balance to pay Ms.

Dixon’s expenses at Heritage Manor of Memphis, her residence. Despite the existence of this

order, Ms. Moses contacted the Social Security Administration five times in an attempt to have

Ms. Dixon’s check sent directly to her [Ms. Moses]. Ms. Moses never complained to her

attorney regarding the quality of Mr. Irby’s services as guardian ad litem for Ms. Dixon’s estate;

however, she contacted the Board of Professional Responsibility (Board) alleging that Mr. Irby

had, inter alia, improperly received money from Ms. Dixon’s estate. These communications

were also sent to Chancellor Alissandratos. At the direction of the Chancellor, John Robertson,

Clerk and Master, responded to Ms. Moses’s letters, directing her not to send additional ex parte

communications and to communicate with the Chancellor, if necessary, through her attorney.

       On June 21, 1994, Mr. Irby filed a Petition for Further Instructions. A hearing took place

on June 29, 1994, at which time the court found that Ms. Moses had deliberately frustrated the

intentions of the court by interfering with Mr. Irby’s actions as Ms. Dixon’s guardian. In

response to questions concerning the amount of time Mr. Irby expended because of Ms. Moses’s

interference, the following dialogue took place between Mr. Irby and his attorney:

               Q: Would you briefly describe what your life has been like based

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              on the continual assault on your performance of your duties by

              Mrs. Moses? How many hours would you say you have spent

              responding to her various complaints to the board?



              A: A conservative count at this time -- and I’m including

               responding to the letters to the Chancellor which were sent to Mr.

               John Robertson and Mr. Robertson requested my response to her

               second letter, and I wrote a lengthy response -- total time would

               be thirty-five to forty hours.



               Q: Now, has that helped or hindered you in the administration of

               this guardianship?



               A: Well, it’s very much hindered me. I might add, it’s more time

               if I include the time going to Social Security to correct the -- the

               March check was supposed to come the first week in May, and

               following the Heritage Manor applying for rep payee status,

               which I had no notice of until the check did not arrive, so the time

               I would guess would be forty-five to fifty hours because I had to

               go to Social Security, personally exhibit orders, et cetera, and I

               have had to do it more than once.

                       What it has done to my schedule, it has greatly interfered

               with my work schedule . . . . Like, for example, yesterday I spent

               five hours getting ready for this hearing today, so it has been the

               most inopportune time.



On cross-examination, Mr. Richter, attorney for Ms. Moses, had the following dialogue with Mr.

Irby:

               Q: Just a few things, Mr. Irby. You have stated that you had

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               spent about forty-five or fifty hours going to the Social Security
               office to try and straighten out the check situation; is that correct?

               A: No. I said total, straighten out the Social Security check
               situation and responding to your client’s letters to Mr. Robertson
               as well as to Nashville, I mean total.

During closing arguments, the court made the following statement:

               I think he said thirty-five to forty hours to deal with your client’s
               complaints and then he said plus he had to spend some additional
               time dealing with the Social Security complaints. That’s what I
               wrote down.

       Based on these statements, the trial court ruled that Ms. Moses had “unreasonably

consumed the time of Mr. Irby for forty hours” and awarded Mr. Irby a fee of $3000.00, plus

costs of $127.00, for his service as Ms. Dixon’s guardian ad litem and rendered judgment against

Ms. Moses for this amount. The trial court stated that the fee to Mr. Irby was justified pursuant

to both Tenn.R.Civ.P. 17.03 and Tenn.R.Civ.P. 11.

       Appellant presents a single issue on appeal which, as stated in appellant’s brief, is:

               Whether the trial court erred in rendering judgment against
               Appellant to compensate Appellee for his time spent responding
               to a complaint filed against him with the Board of Professional
               Responsibility.

       Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.

T.R.A.P. 13(d).

       It is well established that the trial court has discretion to award costs in a civil case.

T.C.A. § 20-12-119 (1994). Fees awarded to a guardian ad litem for his or her services are

taxed as costs under Tenn.R.Civ.P. 17.03. Appellee argues that where a guardian ad litem is also

an attorney, any time he or she spends responding to the Board may be awarded as costs under

Tenn.R.Civ.P. 17.03.

       The practice of law is a privilege, not a right. Cox v. Huddleston, 914 S.W.2d 501, 505

(Tenn. App. 1995). Any attorney practicing law in the State of Tennessee voluntarily subjects

him or her self to the “disciplinary jurisdiction of the Supreme Court, the Board [of Professional

Responsibility], the hearing committees . . . and the Circuit and Chancery Court.” Rules of the


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Supreme Court, Rule 9 § 1.1. Moreover, an attorney’s failure to respond to correspondence

from the Board results in temporary suspension. Rules of the Supreme Court, Rule 9, § 4.3.

We concede the point made by the appellee; that is, that the actions by Mr. Irby that caused Ms.

Moses to complain to the Board occurred while he was acting in his capacity as a guardian ad

litem, not as an attorney. Moreover, it is clear from the record that the chancellor found that Ms.

Moses’s actions were unreasonable.

       Courts have wide discretion to allow guardians a reasonable fee for their time.

Tenn.R.Civ.P. 17.03; Anderson v. Memphis Housing Authority, 534 S.W.2d 125, 129 (Tenn.

App. 1975). However, because of the competing policy considerations at issue, we hold that an

attorney who acts as a guardian must bear the particular burden of responding to the Board of

Professional Responsibility without the expectation of receiving any form of compensation,

regardless of the fact that the attorney was acting in his or her capacity as a guardian ad litem at

the time the complaint arose.

        In the case before us, the chancellor awarded a judgment against Ms. Moses for the

guardian ad litem fees. Admittedly, some part of this fee was based on the time Mr. Irby spent

dealing with Ms. Moses’s complaint filed with the Board of Professional Responsibility, which

is not compensable. The chancellor stated that the award of fees was proper pursuant to Rules

11 and 17, Tennessee Rules of Civil Procedure, but did not show any division of the award

between the two rules. Rule 17.03 provides for guardian ad litem fees to be awarded as part of

the costs of the cause, and Rule 11 provides for sanctions against the offending party. We are

unable to determine from the record before us what part of the award is costs and what part is

sanctions and therefore cannot determine whether the award is proper under these circumstances.

        Accordingly, the order of the trial court awarding fees to the appellee is vacated, and the

case is remanded to the trial court for further proceedings consistent with this opinion. Costs of

the appeal are assessed one-half to Ms. Moses and one-half to Mr. Irby.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.
CONCUR:

_________________________________
DAVID R. FARMER, JUDGE
_________________________________
HOLLY KIRBY LILLARD, JUDGE




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