In Re Conservatorship of Robert E. Hathaway
Date Filed2023-12-15
DocketW2020-00687-COA-R3-CV
Cited0 times
StatusPublished
Syllabus
Appellant attorney appeals the denial of his request for attorney's fees to be paid from the estate of a ward in a conservatorship proceeding. The trial court denied the request on the bases that the legal services contract at issue did not provide for the payment of fees from the estate, the ward lacked capacity to enter into a power of attorney giving the executor of the contract authority to do so, and the applicant attorney was never appointed as attorney ad litem for the ward. We affirm.
Full Opinion (html_with_citations)
12/15/2023
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 28, 2023 Session
IN RE CONSERVATORSHIP OF ROBERT E. HATHAWAY
Appeal from the Probate Court for Shelby County
No. D-11390-1 Robert E. Lee Davies, Senior Judge
___________________________________
No. W2020-00687-COA-R3-CV
___________________________________
Appellant attorney appeals the denial of his request for attorneyâs fees to be paid from the
estate of a ward in a conservatorship proceeding. The trial court denied the request on the
bases that the legal services contract at issue did not provide for the payment of fees from
the estate, the ward lacked capacity to enter into a power of attorney giving the executor of
the contract authority to do so, and the applicant attorney was never appointed as attorney
ad litem for the ward. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed
and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, and KENNY ARMSTRONG, JJ., joined.
Richard W. Parks, Memphis, Tennessee, Pro se.
Deborah K. Brooks, Memphis Tennessee, for the appellee, Aging Commission of the
MidSouth.
Thomas Branch, Memphis, Tennessee, Guardian Ad Litem
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves an application for fees incurred in a conservatorship action in the
Shelby County Probate Court (âthe trial courtâ). In March 2011, a petition was filed for the
appointment of a conservator over Robert E.L. Hathaway. In the course of the proceedings,
a guardian ad litem was appointed for Mr. Hathaway. In December 2012, Appellee the
Aging Commission of the Midsouth (âACMSâ) was appointed as the interim conservator.
In February 2013, the trial court appointed ACMS as the permanent conservator of Mr.
Hathaway. The case proceeded for several years.
Eventually, in October 2016, Mr. Hathaway died, and the conservatorship was
terminated. The trial court was left with $19,165.50 in Mr. Hathawayâs estate to distribute.
Three individuals associated with the conservatorship requested fees to be paid from the
estate: (1) Appellee Thomas Branch (âGAL Branch,â and together with ACMS,
âAppelleesâ), the guardian ad litem, requested $19,250.00 in fees and expenses; (2) Peggy
Dobbins, as the public conservator with ACMS, requested $15,450.00 and expenses; and
(3) Deborah Kay Brooks, as the attorney for Ms. Dobbins and ACMS, requested
$11,406.69 in fees and expenses.
On February 12, 2020, a fourth individual requested fees to be paid from the estate.
Specifically, Appellant Richard W. Parks, an attorney, filed a motion to enforce a
previously filed attorney lien âto insure payment from the estate of [Mr. Hathaway] for
valuable legal services rendered on [his] behalf . . . pursuant to a written contract for the
same[.]â According to Attorney Parks, if he had not acted
in pursuing and recapturing the aforesaid real and personal property which
was fraudulently taken from Mr. Hathaway . . . , the estate of [Mr.] Hathaway
would be without any funds whatsoever to pay any of Mr. Hathawayâs still
outstanding debts. Therefore, [Attorney] Parks[âs] fees for legal services
should be given priority over other outstanding debts and be paid first . . . .
In support of his fee claim, Attorney Parks submitted a power of attorney, drafted
by himself and signed by Mr. Hathaway, in favor of Eli Savage; a contract Mr. Savage, as
the power of attorney for Mr. Hathaway, signed for legal services with Attorney Parks; a
promissory note signed by Mr. Savage, as power of attorney for Mr. Hathaway, to Attorney
Parks for $4,500.00; two checks payable to Attorney Parks totaling $5,000.00, also signed
by Mr. Savage; and a fee log detailing the work expended by Attorney Parks. According
to the application for fees, Attorney Parks incurred $19,670.00 in legal fees on behalf of
Mr. Hathaway, with an unpaid balance of $16,970.00. Attorney Parks asked that these fees
be paid from the assets of Mr. Hathawayâs estate.
An evidentiary hearing on the outstanding fee requests was held on February 12,
2020. Attorney Parks, GAL Branch, and Attorney Brooks all testified, but no transcript of
this hearing is included in the record on appeal.1 By order of February 18, 2020, the trial
court entered a detailed written order denying Attorney Parksâs fee application. Therein,
the trial court ruled that the contract submitted did ânot entitle [Attorney Parks] to any fees
1
The lack of transcript is discussed in detail, infra.
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for his representation in the probate case.â Moreover, the trial court held that Mr. Hathaway
did not have the mental capacity to execute the power of attorney that gave Mr. Savage the
authority to execute the legal services contract. The trial court also noted that because
Attorney Parks failed to apply for the appointment of an attorney ad litem under Tennessee
Code Annotated section 34-1-125,2 the trial court lacked authority to award fees. The trial
court awarded reduced fees to GAL Branch, Ms. Dobbins, and Attorney Brooks.3
On March 19, 2020, Attorney Parks filed a motion to alter or amend the trial courtâs
judgment, asserting that the trial courtâs order contained many factual errors, including in
regard to the circumstances surrounding the execution of the legal services contract, the
investigation of the guardians ad litem into Mr. Hathawayâs competency, and Attorney
Parksâs testimony. The motion further asserted that the trial courtâs final order should be
amended to address âthe clerkâs exceptions to the conservatorâs âfinal accountingâ and
contain a specific ruling as to [Attorney Parksâs] Attorney Lien for legal services[.]â The
trial court denied the motion to alter or amend by order of April 2, 2020, on the basis that
Attorney Parks was attempting to raise new, previously untried theories. Attorney Parks
thereafter appealed to this Court.
II. ISSUES PRESENTED
Attorney Parks raises the following issues, which are taken from his appellate brief
with minor alterations:
1. Did the trial court abuse its discretion and err in finding that, despite two
years of work pursuant to a voluntary, armsâ length, written contractual
agreement statutory and equitable principles of Tennessee law, the rules
of professional conduct, a duly documented and timely filed attorney
lien, the obvious benefits his client and his estate derived from the
undisputed valuable legal services Attorney Parks provided in good faith
to protect his client and his rights, to recover valuable personal and real
property which had been wrongfully taken from his client and to assist
his client in freeing himself from the bonds of a fraudulent, toxic and
2
This statute states as follows:
(a) The court shall appoint an attorney ad litem to represent the respondent on the
respondentâs request, upon the recommendation of the guardian ad litem or if it
appears to the court to be necessary to protect the rights or interests of the respondent. The
attorney ad litem shall be an advocate for the respondent in resisting the requested relief.
(b) The cost of the attorney ad litem shall be charged against the assets of the
respondent.
3
Specifically, GAL Branch was awarded $8,000.00; Ms. Dobbins was awarded $5,582.75; and
Attorney Brooks was awarded $5,582.75. This amount represented the entirety of the assets held by the
trial court.
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harmful marriage to the one who maliciously wronged him and sought
to obtain unwanted legal control over his person and property, Attorney
Parks is not entitled to any compensation from the conservatorship estate
of the now deceased client consisting entirely of funds which Attorney
Parks caused to be returned to the said client?
2. Did the trial court violate Attorney Parksâs constitutional right to due
process and equal protection of the law in ruling that under Tennessee
law, Attorney Parks is not entitled to be compensated from the
conservatorship for legal services rendered as attorney ad litem for Mr.
Hathaway because he was not court-appointed while it simultaneously
awarded compensation to the unappointed attorney for the conservator
who has arguably mishandled the wardâs estate?
3. Did the trial court abuse its discretion and err in failing to review and
confirm the fiduciaryâs missing and irregular accountings to determine
the true and correct nature and extent of the conservatorshipâs estate at
least contemporaneously with its award of costs and fees especially since
there had been no confirmed accounting for the period of time since
November 2016 and the clerk had issued a citation for show cause and/or
contempt on or about July 15, 2019; thirty-three months after the wardâs
death?
4. Did the trial court abuse its discretion and err in overruling Attorney
Parksâs timely filed Rule 59 Tennessee Rules of Civil Procedure motion
seeking to correct alleged factual errors in the trial courtâs February 18,
2020 order of judgment?
II. STANDARD OF REVIEW
The central focus of this appeal is the trial courtâs decision to deny Attorney Parksâs
request for attorneyâs fees to be paid out of the estate of Mr. Hathaway. Under Rule 13(d)
of the Tennessee Rules of Appellate Procedure, we review the trial courtâs factual findings
de novo upon the record with a presumption of correctness. Tenn. R. App. P. 13(d). We
review the trial courtâs legal conclusions de novo with no presumption of correctness.
Burress v. Shelby Cnty., 74 S.W.3d 844, 846(Tenn. Ct. App. 2001). A trial courtâs decisions regarding the award of attorneyâs fees are reviewed under the abuse of discretion standard. Wright ex rel. Wright v. Wright,337 S.W.3d 166, 176
(Tenn. 2011).
III. Analysis
A.
Although not designated as an issue, Attorney Parks first takes issue with the lack
of a statement of the evidence in this appeal. Rule 24 of the Tennessee Rules of Appellate
Procedure requires that the appellant either file a transcript or statement of the evidence, or
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give notice that none is to be filed. See Tenn. R. App. P. 24(b)â(d). It is generally the
appellantâs duty to comply with Rule 24âs transcript or statement of the evidence
requirement. Coakley v. Daniels, 840 S.W.2d 367, 370(Tenn. Ct. App. 1992). In the absence of a transcript or statement of the evidence, âthis Court presumes that sufficient evidence existed to support the trial courtâs decision.â Irvin v. City of Clarksville,767 S.W.2d 649, 653
(Tenn. Ct. App. 1988).
In order to fully address this issue, we provide a brief recitation of the procedural
history relative to the filing of the statement of the evidence in the trial court. After filing
his notice of appeal, on June 29, 2020, Attorney Parks filed a statement of the evidence in
the trial court. ACMS filed a response and objections to the statement of the evidence on
August 26, 2020. Therein, ACMS asserted as follows:
1. Deborah K. Brooks and ACMS state that some of the statements made
by the Attorney Parks, Richard Parks, Esq. are objectionable. However, we
wish to expedite the matter and not clutter the process with statements and
objections not relevant to the singular issue in the case. After a lengthy recital
his findings of facts the Honorable Robert E. Lee Davies, Senior Judge in his
Order entered on February 18, 2020, wherein Judge Davies concisely cited
legal authority for his decision:
â. . . this Court has no authority to award [Attorney] Parks his
attorneyâs fees since he did not qualify as one of the listed parties eligible for
an award of attorneyâs fees. Tenn. Code Ann. §34-1-114. Tillman v.
Thomas, 2012 W.L. 4550961 (Tenn. Ct. App. 2012).â
We, Deborah K. Brooks, Esq. and the ACMS rely upon the findings of fact
and statements of law and MOVES for a dismissal of the appeal.
GAL Branch, as the guardian ad litem, filed his own objection to the statement of
evidence on September 1, 2020. Therein, GAL Branch objected to specific paragraphs of
Attorney Parksâs statement of the evidence as not supported by the evidence or the law.
The issue of the statement of the evidence then went unresolved for many months. On
August 23, 2022, this Court entered an order requiring Attorney Parks to show cause why
the appeal should not be dismissed for failure to file a transcript or statement of the
evidence. We entered another order on September 29, 2022, again directing Attorney Parks
to file a transcript or statement of the evidence.
On December 22, 2022, this Court received a supplemental appellate record from
the trial court, which contained an order of the trial court dated December 13, 2022. This
order stated that â[o]n July 29, 2022, the Court reviewed the statement of evidence
submitted by Attorney Parks and the objections thereto submitted by Appellees . . . . and
ruled upon the admissibility of each paragraph.â The trial court further stated that its
ârulings on the statement of the evidence is contained in the transcript of the July 29, 2022
hearings,â but that neither party had ârequested the Court to enter any additional order
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regarding the contents of the appellate record and statement of the evidence.â We therefore
entered an order on March 7, 2023, directing Attorney Parks to file a proposed order with
the trial court or else show cause why this appeal should not be dismissed.
In response, this Court received an order of the trial court entered on March 28,
2023, which included the following determinations:
The Court has reviewed the proposed order submitted by [Attorney Parks]
and finds it is not in compliance with this Courtâs prior order directing that
the statement of the evidence be prepared in accordance with the transcript
of the July 29, 2022 hearing.
....
It is [Attorney Parksâs] duty . . . âto prepare the record which conveys
a fair, accurate, and complete account of what transpired in the trial court
regarding the issues which formed the basis of the appeal.â Although both
this Court and the Court of Appeals have given [Attorney Parks] every
opportunity to prepare the transcript in accordance with this Courtâs ruling
on July 29, 2022, [Attorney Parks] has failed to do so.
(Internal citation omitted). We then entered an order on April 19, 2023, ruling that Attorney
Parks had not complied with Rule 24 and ordering that the appeal would proceed in the
absence of a transcript or statement of the evidence.
Attorney Parks admits that our April 19, 2023 order was âperhaps factually
accurateâ but disagrees that he should be held responsible for the failures in this case.
Respectfully, we disagree. The Tennessee Rules of Appellate Procedure specifically
provide that relief will not âbe granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.â Tenn. R. App. P. 36(a). In our view, Attorney Parks was given over two years to
follow the trial courtâs directives so that a proper statement of the evidence could be
submitted to this Court. Even after this significant delay, however, Attorney Parks failed
to do what was necessary to ensure that this Court had a sufficient record to provide
meaningful appellate review of the evidence in this case. And as Attorney Parks has not
designated the trial courtâs ruling regarding the statement of the evidence as an error on
appeal, we stand by our decision to consider this case in the absence of a transcript. Based
on Attorney Parksâs repeated failure to respond to both the trial courtâs and this Courtâs
directives, we are left without a transcript or statement of the evidence in this appeal; as a
result, we will apply a conclusive presumption that sufficient evidence was presented to
support the trial courtâs judgment. Ramsay v. Custer, 387 S.W.3d 566, 568 (Tenn. Ct. App.
2012).
B.
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Attorney Parksâs first two issues concern the trial courtâs ruling that he was not
entitled to payment of the legal fees he allegedly incurred on behalf of Mr. Hathaway. As
previously discussed, the trial court cited three bases for denying Attorney Parksâs fee
application: (1) the legal services contract did not provide that the fees incurred therein
would be paid from the probate estate; (2) Mr. Hathaway did not have mental capacity to
sign the power of attorney that gave Mr. Savage the authority to enter into the legal services
contract; and (3) Attorney Parks never sought be appointed as Mr. Hathawayâs attorney
ad litem.
On appeal, Attorney Parksâs argument as to his first issue is, in its entirety,
as follows:
After being contacted by and personally consulting with Mr. [] Savage and
Mr. Hathaway, [Attorney Parks] answered the call of duty legally as an
ethical, zealous lawyer and as a compassionate human and did what he
thought was the right thing to do for over two years and succeeded in
genuinely rescuing and helping Mr. Hathaway for as long as he could
ethically do so. See, Rule 1.14 of the Tennessee Rules of Professional
Responsibility. And successfully accomplished virtually all he could legally
and ethically do under the circumstances and Mr. Hathaway and his estate
benefited greatly as a result. Therefore he should be fairly compensated to
the extent possible, as the law permits, for the valuable services he rendered
in good faith and agreed and evidenced in the record and as . See, T.C.A. 31-
1-125, T.C.A. 34-1-114, T.C.A. ; and Judge Gomesâ order of September 27,
2013 at R.Vol. 3, page 340.[4]
Clearly, this argument wholly fails to address the trial courtâs legal bases for
denying Attorney Parksâs fee application. Moreover, none of the purported legal authorities
support Attorney Parksâs assertion that the trial court erred. Tennessee Code Annotated
section 34-1-114 provides for the payment of certain costs from the property of the ward,
such as the fees of the guardian ad litem or for required mental examinations, but Attorney
Parks does not explain how this statute entitles him to fees in this particular case. We
further assume that Attorney Parks intends to cite to Tennessee Code Annotated section
34-1-125,5 which allows the cost of an attorney ad litem appointed by the court to be paid
from the assets of the ward.6 But the trial court found that Attorney Parks never requested
and was never appointed as an attorney ad litem in this case.
Indeed, even the order cited by Attorney Parks above belies his argument.
4
Judge Kathleen N. Gomes previously presided over this matter. She recused by order of October
15, 2019.
5
Tennessee Code Annotated section 31-1-125 does not exist.
6
For the full text of this statute, see footnote 2, supra.
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Specifically, the September 27, 2013 order states as follows:
1. Richard W. Parks was never approved as an Attorney ad Litem for [Mr.
Hathaway], but the Court has allowed him to speak on [Mr. Hathawayâs]
behalf through the hearing of the Motion to alter and amend the property
management plan heard on the 19th of August, 2013.
2. Further, the Court is of the opinion that once the Conservator was
appointed, [Mr. Hathawayâs] rights and interests were adequately protected
and the Ward did not require further legal representation. Appearance made
by Richard Parks for [Mr. Hathaway] after the appointment of the
Conservator were done at his own peril.
3. [Mr. Hathaway] lacked capacity to retain and/or maintain an
attorney/client relationship with Richard Parks certainly, at least, since the
Conservator was appointed.
So then, Attorney Parksâs reliance on the attorney ad litem statute as support for his claim
of attorneyâs fees is entirely misplaced.
Rule 27(a) of the Tennessee Rules of Appellate Procedure provides that the brief of
the appellant shall contain, among other things:
An argument, which may be preceded by a summary of argument, setting
forth:
(A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities
and appropriate references to the record (which may be quoted
verbatim) relied on; . . .
Tenn. R. App. P. 27(a)(7). âIt is not the role of the courts, trial or appellate, to research or
construct a litigantâs 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.â Sneed v. Bd. of Pro. Resp. of Sup. Ct., 301 S.W.3d 603, 615 (Tenn.
2010).7 Here, Attorney Parks has failed to develop a non-skeletal argument to demonstrate
that the trial court erred in any of the three bases upon which it denied Attorney Parksâs
fee application.
7
We have held that these requirements apply to both represented parties and self-represented
parties. See generally Hessmer v. Hessmer, 138 S.W.3d 901, 903(Tenn. Ct. App. 2003). Moreover, while Attorney Parks is representing his own interests in this appeal, he is a licensed attorney and his involvement in this case results solely from his alleged role as counsel for Mr. Hathaway. Thus, it should not be necessary to afford Attorney Parks the same leeway as pro se litigants who have âno legal training and little familiarity with the judicial system.âId.
-8-
We note that Attorney Parks does attempt to better address some of the trial courtâs
ruling in his reply brief. Reply briefs, however, usually cannot be used to correct the
deficiencies in initial briefs. See Augustin v. Bradley Cnty. Sheriffâs Off., 598 S.W.3d 220, 227 (Tenn. Ct. App. 2019).8 Moreover, the bulk of the arguments made in Attorney Parksâs reply brief fail due to the conclusive presumption in favor of the trial courtâs ruling. For example, Attorney Parks argues that the evidence was insufficient to support a finding that Mr. Hathaway lacked capacity when he executed the power attorney because there was no evidence that Mr. Hathaway âhad ever been adjudicated to be a disabled person under Tennessee law[.]â Attorney Parks further argues that the âtotality of the recordâ shows that Mr. Hathaway âhad sufficient mental capacityâ to execute the power of attorney. Without the benefit of a transcript or statement of the evidence, however, we simply cannot evaluate the evidence presented in favor of the trial courtâs finding that Mr. Hathaway lacked capacity. Instead, we must presume this factual finding to be correct. See Irvin,767 S.W.2d at 653
.
Attorney Parks further argues that Appellees âmistakenly assert that [section] 34-1-
114 alone controls who may be awarded fees from a conservatorship estate.â But it was
Attorney Parks who cited this statute, along with section â34-1-125,â as the sole basis for
his argument on appeal that the trial court erred in denying his fees. Moreover, Attorney
Parks admits that he was ânever appointed as attorney ad litemâ for Mr. Hathaway, but
asserts that such appointment was unnecessary due to the contract privately retaining
Attorney Parks for legal services. But again, we have concluded that the trial courtâs
finding that Mr. Hathaway lacked the capacity to enter into the power of attorneyâthe
document that gave Mr. Savage the authority to enter into the legal services agreementâ
must be affirmed due to the conclusive presumption applicable here. Thus, the purported
legal services agreement can be of no benefit to Attorney Parksâs fee request in the
conservatorship action. As such, Attorney Parks has not demonstrated that he is entitled to
relief as to his first issue.
Attorney Parks further asserts that the trial courtâs ruling violated his constitutional
right to due process and equal protection. His entire argument as to this issue is as follows:
The trial court found in its order of February 18, 2020 that [Attorney Parks]
was not entitled to be award any compensation from the conservatorship
estate because T.C.A. 34-1-114 does not specifically authorize such an award
to one an attorney who did nor was not court-appointed to serve as an
attorney yet the court did indeed grant the fee request of an Appellee who
was similarly situated as the attorney, not for [Mr. Hathaway] to a
8
Attorney Parks raises additional arguments in his reply brief asserting that he was a secured
creditor on a legitimate debt owed by Mr. Hathaway. These arguments were not made in Attorney Parksâs
initial brief, and are therefore waived. See Caruthers v. State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991)
(âAn appellant cannot . . . advance a new argument to support an issue in the reply brief.â).
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conservatorship action but as an unappointed private attorney employed by
a state agency which did not ask for authorization to employ said attorney
and therefore failed to treat the two similarly situated persons by the same
standard in the eyes of the law and violated [Attorney Parksâs] constitutional
right.
Once again, Attorney Parks cites no legal authority to support his claim that his
constitutional right to due process was somehow violated in this case. Here, the trial court
had an evidentiary hearing in which Attorney Parks was permitted to submit evidence and
testimony in support of his claim for fees. And Attorney Parks repeatedly failed to comply
with the mandates of the trial court and this Court to prepare a statement of the evidence
from which we could engage in meaningful appellate review. In light of Attorney Parksâs
skeletal argument on this issue and the conclusive presumption that the trial courtâs ruling
is supported by the evidence, we must conclude that Attorney Parks has not demonstrated
that he is entitled to relief on his second issue.
C.
Attorney Parks next asserts that the trial court abused its discretion in failing to
review and confirm the fiduciaryâs âmissing and irregular accountings[.]â9 The entirety of
Attorney Parksâs argument on this issue is simply a citation to Tennessee Code Annotated
section 34-3-108(e), which Attorney Parks asserts âgenerally governs the accounts and
settlement of executors and administrators and fiduciaries of estates and provides that all
personal representatives of estates must account to the court[.]â But an argument that is
more than skeletal is one that includes not only citation to legal authority but also an
explanation of âhow the cited legal principles apply to the facts in this case.â Tennesseans
for Sensible Election Laws v. Slatery, No. M2020-01292-COA-R3-CV, 2021 WL
4621249, at *6 (Tenn. Ct. App. Oct. 7, 2021) (describing the explanation as ânecessaryâ), perm. app. denied (Tenn. Mar. 24, 2022). In the absence of an explanation as to how the cited legal authority supports his assertion of error, this argument is waived.10 D. 9
We note that nothing in Attorney Parksâs argument on this issue indicates whether he raised this
issue in the trial court prior to his motion to alter or amend. See Tenn. Ct. App. P. 6(a)(2) (requiring that
the appellantâs argument include â[a] statement showing how such alleged error was seasonably called to
the attention of the trial judge with citation to that part of the record where appellantâs challenge of the
alleged error is recordedâ). Motions to alter or amend are not vehicles for raising ânew, previously untried
or unasserted theories or legal arguments.â In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005).
10
GAL Branch asserts on appeal that Attorney Parks had no standing to challenge the accountings,
as he was not a party to the conservatorship case and did not represent a party. We need not address this
issue on appeal given Attorney Parksâs waiver.
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Finally, Attorney Parks asserts that the trial court erred in denying his motion to
alter or amend because he was not raising new, previously untried legal arguments. Instead,
Attorney Parks asserts that his intention was to âdirect[] the [trial] courtâs attention to the
many factual errorsâ in the trial courtâs judgment. Moreover, Attorney Parks asserts that
he should have been permitted a hearing on his motion to alter or amend. Once again,
however, Attorney Parks cites no legal authority in support of his argument. Indeed, this
Court has previously held that it was not error for a trial court to consider a motion to alter
or amend without an evidentiary hearing, particularly when such a hearing was not
requested by the movant. See Polster v. Polster, No. M2020-01150-COA-R3-CV, 2021
WL 4167927, at *6 (Tenn. Ct. App. Sept. 14, 2021) (â[W]e discern no error in the courtâs
deciding the matter on the pleadings alone, as neither Rule 59.04 or 60.02, nor any other
authority we have discovered in our research, contains a requirement that a separate
evidentiary hearing be held on such motions, especially when one is not requested.â), perm.
app. denied (Tenn. Jan. 12, 2022).11 Moreover, we simply cannot review the question of
whether the trial court should have amended its factual findings in the absence of a
transcript or statement of the evidence.12 So again, we conclude that this skeletal argument
has not demonstrated that Attorney Parks is entitled to relief on this issue.
IV. CONCLUSION
The judgment of the Shelby County Probate Court is affirmed, and this cause is
remanded to the trial court for further proceedings as are necessary and consistent with this
Opinion. Costs of this appeal are taxed to Appellant Richard W. Parks, for which execution
may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
11
Nothing in Mr. Parksâs motion to alter or amend specifically requests a hearing.
12
As an example, the trial courtâs order explained that âwhen [Attorney] Parks met with Mr. Savage
and Mr. Hathaway, he immediately recommended that Mr. Hathaway sign a power of attorney in favor of
Mr. Savage so that Mr. Savage could then enter into an engagement contract for legal services on behalf
of Mr. Hathaway.â Attorney Parks argued in his motion that this finding
should be deleted in its entirety and replaced with words to the effect that, after [Attorney]
Parks personally spoke with Mr. Savage and Mr. Hathaway by phone and subsequently
reviewed legal documents and researched and reviewed public records in following days,
he recommended that Mr. Hathaway execute a durable power of attorney to appoint his
trusted and capable friend and brother in law, Mr. Savage as his attorney in fact to assist
him in accomplishing his goals.
Obviously, without a transcript or statement of the evidence, we cannot review what evidence was actually
presented on this issue. As such, we presume that the trial courtâs factual findings are accurate. See Irvin,
767 S.W.2d at 653.
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