In Re Estate of Mavis A. Combs

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 28, 2012 Session

IN RE ESTATE OF MAVIS A. COMBS

Appeal from the Probate Court for Davidson County

No. 10P652 David Randall Kennedy, Judge

No. M2011-01696-COA-R3-CV - Filed August 28, 2012

Decedent’s adult daughter and three adult grandchildren appeal from the trial court’s

judgment that the grandchildren are not entitled to survivor pension benefits under decedent’s

employee pension plan. Summary judgment was appropriate because there are no genuine

issues of material fact and because there exists no legal basis on which to extend survivor

pension benefits to the grandchildren. We affirm.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,

P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Jessie Ray Akers, Jr. and David Matthew Dolan, Nashville, Tennessee, for the appellants,

Vicki Spurlock, William Stephen Earl Patterson, Mavis Jennie Lynette Lew, and Mary

Michelle Shawhan.

Cynthia Ellen Gross, Jason Paul Bobo, and Kathryn S. Evans, Nashville, Tennessee, for the

appellee, Metropolitan Government of Nashville and Davidson County.

OPINION

F ACTUAL AND P ROCEDURAL B ACKGROUND

The decedent, Mavis A. Combs (“Ms. Combs”), worked for the Metropolitan

Government of Nashville and Davidson County (“Metro”) for many years. She died intestate

on February 7, 2010. At the time of her death, Ms. Combs was unmarried and was survived

by her daughter, Vicki Spurlock (“Ms. Spurlock”), and three adult grandchildren, William

Stephen Earl Patterson, Mavis Jennie Lynette Lew, and Mary Michelle Shawhan (“Ms.

Shawhan”).

Ms. Shawhan had Ms. Combs’s power of attorney and, beginning in November 2009,

attempted to apply through the Metro Human Resources Department (“HR”) for pension

benefits on Ms. Combs’s behalf. On February 7, 2010, Ms. Combs died before completing

the pension application process, thus her pension benefits never commenced.

In April 2010, Ms. Spurlock, the administratrix of Ms. Combs’s estate, filed a petition

for declaratory relief requesting a declaration that Ms. Combs’s three grandchildren, rather

than the estate, are the legal beneficiaries of the pension plan. Metro filed a motion for

summary judgment arguing that there was no legal authority pursuant to the Metropolitan

Code of Laws for the payment of survivor pension benefits to the grandchildren or to the

estate. The trial court, finding no genuine issues of material fact and finding that Metro had

satisfied its burden as the moving party, granted the motion for summary judgment on the

ground that there is no ordinance or other legal authority extending survivor pension benefits

to the grandchildren. Ms. Spurlock and the grandchildren appeal.

Metro Pension System and Application Process: Undisputed Facts 1

Metro and its Employee Benefit Board regulate pensions in accordance with the

Metropolitan Charter and the Metropolitan Code of Laws. A Metro employee who has at

least five years of credited service earns a vested pension benefit. Before 1987, Metro

employees contributed money to the pension fund, but since then Metro alone has funded the

pension benefits for general government employees. Metro offers seven pension options.

To initiate the pension application process, a Metro employee first contacts the HR

benefits staff. Then, the employee has an intake meeting with a benefits staff member who

provides the employee with necessary paperwork and a list of documents the employee must

provide to HR so that his or her pension application will be processed. These required

documents include a birth certificate, Social Security card, and Medicare card. The employee

must present additional documentation if he or she desires to leave a pension benefit to a

survivor beneficiary, including the potential beneficiary’s birth certificate and Social Security

card. Metro requires these documents because it calculates an employee’s various pension

options based on actuarial tables and data. For example, an employee’s monthly pension

benefit would be lower if he or she had designated a young survivor beneficiary versus an

older one.

1

In its order granting summary judgment, the trial court “adopt[ed] the undisputed facts in the record

as the facts in this case.” The undisputed facts recited herein regarding Metro’s pension system and

application process are from the trial court’s order which is fully supported by the testimony of Shannon

Hall, the HR liason to the Metro Employee Benefit Board.

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Once a benefits staff intake employee compiles the required documents and forms,

another HR employee known as the pension calculator calculates the employee’s various

pension options. If an employee has provided the necessary documents and wants to see

pension options that include a designated survivor beneficiary, the pension calculator will

calculate all of the pension options listed on the application for benefits, with certain

exceptions where additional information may be needed. If the employee does not intend to

designate a survivor beneficiary, then the pension calculator will calculate only two of the

pension options. Once the pension calculator has calculated the various options, he or she

meets with the employee and the employee elects one of the pension options.

Separate from the application for benefits is the “Beneficiary Designation Form - Last

Pension Check and Contributions.” An employee lists beneficiaries on this form for two

purposes: (1) If an employee’s pension has commenced, no matter the pension option

selected, those listed on the beneficiary designation form will receive the final pension check

in the month in which the employee dies because the employee cannot collect that final

check; and, (2) If an employee’s pension has not commenced, the beneficiaries listed will

receive the employee’s pension contributions, if applicable.

Designating one or more beneficiaries on the beneficiary designation form is not the

same as designating a survivor beneficiary for a pension. If an employee desires to

designate a survivor beneficiary to receive his or her pension, he or she must list this

beneficiary on the application for benefits after the pension options are calculated and after

he or she selects one that includes a survivor benefit. Only one person may receive an

employee’s survivor pension benefit.

If an employee has a vested pension benefit and dies before electing a pension option,

and the employee has a legal spouse or dependent children, then a survivor pension benefit

is provided for the spouse and/or any dependent children. However, if an employee who

does not have a legal spouse or dependent children has a vested pension benefit and dies

before electing a pension option, then the employee’s beneficiaries are entitled only to the

employee’s pre-1987 pension contributions.

Ms. Combs’s Pension Application: Undisputed Facts

Ms. Shawhan lived with Ms. Combs for two and a half years preceding her death. To

begin the application process for Ms. Combs’s pension benefit, Ms. Shawhan met with HR

employee Pamela McInish on November 20, 2009. Ms. McInish instructed Ms. Shawhan

that she would need to submit certain documents so that Ms. Combs’s pension application

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would be processed.2 During the meeting, Ms. Shawhan filled out and signed on Ms.

Combs’s behalf a form entitled Metro Human Resources Service Pension Application

Request, but left empty the blank in which an optional beneficiary could be designated.

However, Ms. McInish prepared an estimate (dated November 20, 2009) of Ms. Combs’s

benefits. The estimates of the joint and survivor options were calculated “based on a

beneficiary date of birth of 3/11/1981,” Ms. Shawhan’s birth date. Ms. McInish also gave

Ms. Shawhan the beneficiary designation form. This form bears Ms. Combs’s signature, is

dated 12/15/09, designates as beneficiaries Ms. Shawhan and Ms. Combs’s two other adult

grandchildren, and specifically states:

The pension check beneficiary is the person you name to receive the last

pension check owed to you for the month in which you die. If you have

contributed to the pension plan and you die before your total monthly pension

benefit payments equal the amount you contributed and there is no monthly

survivor pension benefit owed at your death, then pension contributions may

be payable to the person you name.

Ms. Shawhan, as power of attorney for Ms. Combs, did not receive a copy of the application

for benefits during the November 20, 2009 meeting because the pension calculator had not

yet calculated Ms. Combs’s various pension options.

HR had in its possession Ms. Combs’s Social Security number because it was listed

on Ms. Combs’s I-9 Employment Eligibility Verification form, twice on the beneficiary

designation form, twice on the service pension application request, and throughout Ms.

Combs’s employee file and personnel records. Nevertheless, HR insisted that Ms. Combs’s

actual Social Security card be produced before processing her pension request.

2

Ms. Shawhan’s deposition testimony reads as follows:

Q. Okay. What was–well, during that first meeting [with Ms. McInish], were you told that

you would have to provide certain documents to HR?

A. Yes.

Q. What documents were you told that you would have to provide in order for the pension

application to be processed?

A. It was a whole list. I can’t be sure exactly all of the documents. I know that [Ms.

Combs’s] birth certificate and Social Security card were at least two of them, but I can’t be

sure what the rest of them were.

Q. Okay. Did you leave with an actual written-down list of what you would need to–

A. Yes.

Q. –bring back?

A. Yes. [Ms. McInish] had given me a list along with all the other paperwork.

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Ms. McInish sent a letter dated December 16, 2009 reminding Ms. Combs and Ms.

Shawhan that they still needed to provide HR with a copy of Ms. Combs’s Medicare and

Social Security cards, and noting that “we cannot proceed any further with [the] pension

request” unless that was done. Ms. Combs’s Social Security card could not be found, so Ms.

Shawhan made numerous attempts to contact Ms. McInish by telephone to ask if she could

instead submit a printout from the Social Security Administration. Ms. McInish did not

return these telephone calls, but sent to Ms. Combs another letter dated January 8, 2010

stating: “though I have received all the necessary information from your department, and

have received Board approval to process your Service Retirement, we cannot proceed any

further with your pension request until you provide [the Social Security card] . . . . These

documents are required for the successful processing of your current request for pension

benefits.”3 On Friday, February 5, 2010, Ms. Shawhan obtained a printout from the Social

3

Metro does not dispute the disheartening fact that Ms. McInish failed to return Ms. Shawhan’s

telephone calls. Ms. Shawhan explained:

Q. Okay. So at that point, December 16, 2009, is it correct that [Ms. Combs’s Social

Security and Medicare cards] had not been provided?

A. Correct.

Q. Okay.

A. That’s when I started calling to ask if I could get something from the Social Security

office, because I was unable to locate her Social Security card at that time.

Q. Okay. Tell me about that. Who did you call and who did you talk to?

A. I called the board and Pam McInish, and I wasn’t ever actually able to have someone give

me an answer on if a printout from the Social Security office was acceptable or not.

Q. Did you actually speak to a person when you called?

A. There was a couple times somebody would answer the phone. I didn’t get their names,

and even if I did, I have no clue what they are now, but they told me that I would have to

speak directly to Pam, that Pam would have to be able to answer that question.

Q. Okay. Did you specifically ask the person that you talked to the question or–

A. Yes.

Q.–Did you just ask to talk to Pam?

A. I asked them if I–if they knew if the printout from the Social Security office would be

acceptable or not, and they said that Pam would have to be able to answer that because she

was the one that worked the case.

Q. Okay. How many times did you call for Pam to ask specifically about the Social Security

card?

A. I don’t have an exact number. I know I called several times on the office number. I also

had her personal cell number, and so I called and also tried to text her, and I never heard

anything back.

We have all experienced the frustration of “red tape.” Though we sympathize with Ms. Shawhan,

the fact that Ms. McInish did not return her telephone calls cannot influence our decision because neither

this fact nor any causes of action arising from it were properly and timely alleged. See infra section I.

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Security Administration as proof of Ms. Combs’s Social Security number and faxed it to HR.

Ms. Combs died two days later.

Ms. Combs died before completing the pension application process. The next steps

would have been the pension calculator’s computation of Ms. Combs’s various pension

options based on the information contained in the initial documents, Ms. Combs’s or her

power of attorney’s election of a specific pension option so that the pension would

commence, and the designation of a survivor beneficiary of the pension. Pursuant to the

Metropolitan Code of Laws, the pension benefit belonging to an unmarried employee with

no dependent children who dies before his or her pension has commenced does not default

to a beneficiary. See Metro Code §§ 3.40.041 and 3.40.045. Ms. Combs was unmarried and

was survived by one adult daughter and three adult grandchildren so, after her death, the

grandchildren received from Metro a check in the amount of her pre-1987 pension

contributions, pursuant to the beneficiary designation form.

S TANDARD OF R EVIEW

A party against whom a declaratory judgment is sought may move for summary

judgment at any time. Tenn. R. Civ. P. 56.02. Summary judgment is appropriate when there

is no genuine issue of material fact and the moving party is entitled to a judgment as a matter

of law. Tenn. R. Civ. P. 56.04. Summary judgments do not enjoy a presumption of

correctness on appeal. BellSouth Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205

(Tenn. 2003). We consider the evidence in the light most favorable to the non-moving party

and resolve all inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.

2002). When reviewing the evidence, we must determine whether factual disputes exist.

Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If a factual dispute exists, we must

determine whether the fact is material to the claim or defense upon which the summary

judgment is predicated and whether the disputed fact creates a genuine issue for trial. Id.;

Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App.1998). To shift

the burden of production to the nonmoving party who bears the burden of proof at trial, the

moving party must negate an element of the opposing party’s claim or “show that the

nonmoving party cannot prove an essential element of the claim at trial.” Hannan v. Alltel

Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).4

4

Tennessee Code Annotated section 20-16-101 (2011), a provision that is intended to replace the

summary judgment standard adopted in Hannan, is inapplicable to this case. See Sykes v. Chattanooga Hous.

Auth., 343 S.W.3d 18, 25 n.2 (Tenn. 2011) (noting that section 20-16-101 is only applicable to actions filed

on or after July 1, 2011).

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A NALYSIS

Metro and its Employee Benefit Board regulate employee pensions in accordance with

the Metropolitan Charter and the Code of the Metropolitan Government of Nashville and

Davidson County, Tennessee (“Metro Code”). Metro Code section 3.33.010 provides that

a Metro employee “who has credited employee service, shall be eligible following

termination to receive an employee service pension in accordance with the provisions of this

chapter . . . . ” However, “[b]efore any benefit payable from the trust fund can be paid, all

conditions applicable to the payment of the benefit shall be met . . . .” Metro Code §

3.08.160. The appellants do not challenge the fact that Ms. Combs’s pension did not

commence before her death because she did not complete the application process and did not

elect a pension option and concede that “the [Metro] Code provides no automatic default

provision for the employee’s post-1987 pension benefits of unmarried persons with no

dependent children who die before their pension applications can be processed.” Instead,

they challenge the constitutionality of the relevant Metro Code provisions and argue that

Metro “is estopped in equity from denying payment of the pension due to its negligence,

obstruction of the process, and lack of good faith and fair dealing with its employee, Ms.

Combs.”

I. Equitable Claims

In response to Metro’s motion for summary judgment, the appellants alleged, for the

first time, alternative claims for relief–namely, that Metro has been unjustly enriched and that

Metro should be estopped in equity from not paying the potential pension benefits, based on

its negligence and lack of good faith and fair dealing with Ms. Combs.5 The appellants

neither alleged any facts to support these claims nor raised these claims in their petition for

declaratory relief nor moved to amend their petition pursuant to Tenn. R. Civ. P. 15.01. The

purpose of the pleading requirements in the Tennessee Rules of Civil Procedure is to

“provide the parties and the trial court with notice of the claims and defenses involved in the

case.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300 (Tenn. Ct. App.

2001) (citing Poster v. Andrews, 189 S.W.2d 580, 582 (Tenn. 1943)). Furthermore, “a

plaintiff may not raise a new theory of recovery for the first time in response to . . . [a]

motion for summary judgment.” Blackburn & McCune, PLLC v. Pre-Paid Legal Serv., Inc.,

5

Though the appellants’s brief also raises the issue of whether Metro “should be estopped from

claiming [Ms. Combs] did not properly fill out her retirement paperwork, due to the unclean hands doctrine,”

they offer no argument on this issue. Tennessee Rule of Appellate Procedure 27(a)(7) requires “[a]n

argument . . . setting forth 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 . . . .” Because the appellants’s argument fails to meet

this basic requirement with respect to the unclean hands issue, we will not consider it.

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No. M2009-01584-COA-R3-CV, 2010 WL 2670816, at *28 (Tenn. Ct. App. Jun. 30, 2010).

“Rather, the proper procedure [is] to seek to amend the complaint to assert [an] alternative

form of relief.” Id. Thus, we decline to consider the appellants’s claims of negligence, lack

of good faith and fair dealing, unclean hands, and unjust enrichment because they were

untimely and improperly raised.

II. Constitutionality of Metro Code Provisions

The appellants argue that the Metro Code provisions that deny survivor pension

benefits to unmarried persons with no dependent children are unconstitutional, that they

violate the 14th Amendment of the United States Constitution and Article XI Section 8 of the

Tennessee Constitution, and that the state has no rational basis or legitimate state interest for

such regulations.” 6

Article XI, § 8 of the Tennessee Constitution provides in pertinent part:

The Legislature shall have no power to suspend any general law for the benefit

of any particular individual, nor to pass any law for the benefit of individuals

inconsistent with the general laws of the land; nor to pass any law granting to

any individual or individuals, rights, privileges, immunitie [immunities], or

exemptions other than such as may be, by the same law extended to any

member of the community, who may be able to bring himself within the

provisions of such law.

This provision of our state Constitution provides for equal protection of laws and affords

“essentially the same protection” as the United States Constitution’s equal protection clause.

State v. Tester, 879 S.W.2d 823, 827 (Tenn. 1994) (quoting Tenn. Small Sch. Sys. v.

McWherter, 851 S.W.2d 139, 152 (Tenn. 1993)). Unless a legislative classification

disadvantages a “suspect class” or interferes with the exercise of a “fundamental right,”

requiring strict scrutiny analysis, it is examined under the “rational basis test.” Tester at 828.

The appellants concede that the Metro Code provisions7 that limit the number of

individuals who are eligible to receive survivor pension benefits should be examined under

the rational basis test, which has been described as follows:

6

The appellants cite no authority in support of this argument and incorrectly cite to Article XI, § 6

of the Tennessee Constitution.

7

Metro Code §§ 3.40.041, 3.40.045, and 3.08.010 (defining “Dependent Child”).

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The concept of equal protection espoused by the federal and our state

constitutions guarantees that “all persons similarly circumstanced shall be

treated alike.” Conversely, things which are different in fact or opinion are not

required by either constitution to be treated the same. “The initial discretion

to determine what is ‘different’ and what is ‘the same’ resides in the

legislatures of the States,” and legislatures are given considerable latitude in

determining what groups are different and what groups are the same. In most

instances the judicial inquiry into the legislative choice is limited to whether

the classifications have a reasonable relationship to a legitimate state interest.

Tenn. Small Sch. Sys., 851 S.W.2d at 153 (quoting Doe v. Norris, 751 S.W.2d 834, 841

(Tenn. 1988)) (citations omitted). “Under this standard, if some reasonable basis can be

found for the classification, or if any state of facts may reasonably be conceived to justify it,

the classification will be upheld.” Tenn. Small Sch. Sys. at 153 (quoting Harrison v.

Schrader, 569 S.W.2d 822, 825 (Tenn. 1978)).

We find that Metro has a rational basis for limiting survivor pension benefits to

surviving spouses and dependent children because these are the classes of individuals who

most depend on the employee’s income. Generally, adult children and adult grandchildren,

like the appellants, earn their own living and do not depend on a parent’s or grandparent’s

income. Also, the limiting of survivor pension benefits has a reasonable relationship to

Metro’s legitimate interest in controlling the financial burden placed on the pension system

that it fully funds for the benefit of all eligible Metro employees. Other courts have found

that a government’s decision to limit beneficiaries to prevent undue burden on a pension

system meets the rational basis test. See e.g., Bd. of Trustees of Policemen’s and Firemen’s

Ret. Fund v. Cardwell, 400 So.2d 402, 406 (Ala. 1981) (finding that the Alabama legislature

had a rational basis to limit the number of individuals who receive pension benefits as well

as the period of coverage provided by the pension system); Freeman v. N.Y.C. Dep’t of Corr.,

420 N.Y.S.2d 536, 101 N.Y. Sup. Ct. (1979). We, therefore, find that the Metro Code

provisions regarding survivor pension benefits pass the rational basis test and are

constitutionally sound.

C ONCLUSION

The trial court did not err in holding that the appellants are not entitled to a pension

benefit that never began. Because no genuine issues of material fact remain and because

Metro has shown that the appellants cannot prove the existence of any legal authority to

support their claims, we affirm the trial court’s decision. We sympathize with the

appellants’s situation, but we cannot create a pension benefit where none exists in the law.

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Costs of appeal are assessed against the appellants, Vicki Spurlock, William Stephen

Earl Patterson, Mavis Jennie Lynette Lew, and Mary Michelle Shawhan, and execution may

issue if necessary.

______________________________

ANDY D. BENNETT, JUDGE

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