In Re: Estate of Harold L. Jenkins, Dolores Henry Jenkins v. Joni L. Jenkins

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JULY 13, 2005 Session

IN RE: ESTATE OF HAROLD L. JENKINS, DECEASED

DOLORES HENRY JENKINS v. JONI L. JENKINS, ET AL.

Direct Appeal from the Probate Court for Sumner County

No. 93P-30 Tom E. Gray, Judge

No. M2004-01352-COA-R3-CV - Filed December 20, 2005

In this appeal, we are asked by the appellant to determine whether the probate court erred when it

did not include income earned from the decedent’s intellectual property after July 1, 2000 when it

calculated the surviving spouse’s elective share under the changing fraction method pursuant to the

Tennessee Uniform Principal and Income Act. The appellees assert that this issue was decided in

the first appeal of this case and that the ruling in that appeal is the law of the case. We affirm.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,

and HOLLY M. KIRBY , J., joined.

Timothy L. Warnock, Amy C. Kurzweg, Michael D. Sontag, Nashville, TN, for Appellant

Charles W. McElroy, Brenda Rhoton Clark, Nashville, TN, for Appellees

OPINION

I. STATEMENT OF FACTS & PROCEDURAL HISTORY

This is the third time that this case has been before the Court. In our second opinion

concerning this case, we noted the following pertinent factual and procedural history:

This is the second time that this case has been before the

Court, and the pertinent factual and procedural history is set out in the

Court's opinion, which we quote:

Harold L. Jenkins (“Decedent”), professionally

known as Conway Twitty, died on June 5, 1993. Prior

to his death, the Decedent executed a last will and

testament and two codicils bequeathing $ 50,000.00 to

Velma Dunaway, the Decedent’s mother, and the

remainder of his estate to Joni Jenkins, Kathy Jenkins,

Jimmy Jenkins, and Michael Jenkins (“Children”), the

Decedent's four adult children. On June 14, 1993,

these documents were admitted to probate and Hugh

Carden and Donald Garis (“Co-Executors”) were

appointed to serve as the co-executors of the

Decedent’s estate.

The Decedent’s surviving spouse, Dolores

Henry Jenkins (“Surviving Spouse” [or “Appellant”]),

filed a petition for an elective share of the Decedent’s

estate on December 10, 1993. A dispute subsequently

arose among the parties regarding the proper

calculation of the Surviving Spouse’s elective share.

Consequently, the Decedent’s daughters Joni and

Kathy Jenkins filed a motion requesting that the trial

court make a determination regarding the value of the

Surviving Spouse’s elective share. . . .

In re Estate of Jenkins, 8 S.W.3d 277, 278 (Tenn. Ct. App.

1999). [hereinafter “Jenkins I”].

The chancery court, inter alia, ruled that the “changing

fraction” method rather than the “fixed fraction” method should be

used when calculating the surviving spouse’s share of the income

generated by the assets in the decedent’s estate prior to the

distribution of her elective share. The court reversed and held that the

“fixed fraction” method was the correct method for calculation. The

case was remanded for further proceedings consistent with the

opinion.

Following Jenkins I, the Tennessee legislature amended the

TUPIA to conform with the 1997 version of the Uniform Principal

and Income Act (“UPIA”). In response to this amendment of the

TUPIA, the co-executors of the estate moved the probate court to

make a determination as to whether the executors should apply the

fixed-fraction or changing-fraction method in calculating the

Surviving Spouse’s share of income generated by the property in the

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estate. Two of the heirs of the estate, Joni and Kathy Jenkins, (the

“Heirs” [or “Appellees”]) in their Response to the co-executors’

Motion, challenged the constitutionality of the application of the

revised TUPIA to this case, and gave notice to the Tennessee

Attorney General of the constitutional challenge.

On June 21, 2000, the chancery court entered an Order which

provides:

This cause came on to be heard on June 16,

2000, upon the motion of the Co-Executors of the

estate of Harold L. Jenkins for instructions regarding

the interpretation and application of the revised

Tennessee Uniform Principal and Income Act passed

by the Tennessee General Assembly and approved by

the Governor on May 24, 2000, to the distributions

made in this estate; said motion was heard on the

basis of said motion, a copy of said Act, attached

thereto; the responses of the surviving spouse and

heirs Joni and Kathy Jenkins, including their notice of

a challenge to the constitutionality of said Act, as

applied to this estate; a legal memorandum filed by

the Co-Executors; the arguments of counsel at the

hearing on said motion, and the entire record in the

cause;

Following said hearing, and consideration by the Court of all

of the foregoing, the Court made the following findings:

The Court finds that the Act, Title 35, Chapter

6, as amended, is not applicable to this case; what is

applicable is the law under which the Court of

Appeals wrote its opinion, and the law under which

this Court had given its opinion; the reason that it’s

not applicable is because this Court has previously

given its opinion, and that opinion was reversed by

the Court of Appeals, and the Supreme Court did not

hear the issue; the Court had directed the Co-

Executors to go ahead, utilizing the Court of Appeals’

opinion, to calculate the share of the surviving spouse,

and what would be then for the children, who are the

other heirs, and this was all done prior to May 15,

2000; the court is therefore of the opinion that the Co-

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Executors shall proceed, pursuant to previous law,

without consideration of the Uniform Principal and

[Income] Act, as amended.

The Court therefore directs and instructs the

Co-Executors to proceed pursuant to previous law,

without consideration of such Act, and the Court

further instructs and directs the Co-Executors that

once they have done their work of calculating the

share of the surviving spouse, if there is any issue

about the application of the Uniform Principal and

Income Act adopted in Tennessee, said issue shall be

between the surviving spouse and the children, and if

said surviving spouse or children wish to appeal the

Court’s ruling, they may do so, but the Co-Executors

will follow the directions of this Court.

In re Estate of Jenkins, 97 S.W.3d 126, 128-30 (Tenn. Ct. App. 2002) (footnotes omitted)

[hereinafter “Jenkins II”].

In Jenkins II, the Surviving Spouse presented one issue, which was “[w]hether the probate

court must apply that provision of the TUPIA, as amended, that mandates the application of the

changing-fraction method to calculation of the surviving spouse's elective share.” Id. at 130. As to

that issue, we found that the probate court must apply the changing-fraction method when it

calculated Surviving Spouse’s elective share of income received after July 1, 2000. Id. at 132.

On remand, the Co-Executors proposed a final distribution of the estate and a method of

calculation for the Surviving Spouse’s elective share. The Surviving Spouse objected to this

calculation claiming that the calculation failed to allocate all interest income generated by the estate,

including interest income earned from intellectual property on or after July 1, 2000. On May 16,

2003, the probate court entered an order approving the Co-Executors’ proposal for final distribution

of the estate and method of calculation for the Surviving Spouse’s elective share. On May 13, 2004,

the probate court granted the Co-Executors’ motion to declare final and appealable the probate

court’s order of May 16, 2003 and to approve a final distribution of the estate, conditioned on

maintenance of appropriate reserves to adjust for outcome of appeals and final administrative

expenses.

II. ISSUES PRESENTED

Appellant has timely filed a notice of appeal and presents the following issue for review:

1. Whether the Amended Uniform Principal and Income Act of 1997 requires the probate court

to apply the changing-fraction method of allocation to all income earned on or after July 1,

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2000, including income earned as a result of intellectual property, with respect to calculating

a surviving spouse’s elective share.

Appellee has presented the following issues for review:

2. Whether the doctrine of the law of the case bars this Court from reconsidering the issue

raised by Appellant;

3. Whether the Co-Executors correctly determined that the Surviving Spouse, having already

received credit for her share of the intellectual property income stream as part of her elective

share valuation, was not entitled to another share of the same income; and

4. Whether this appeal is frivolous within the meaning of section 27-1-122 of the Tennessee

Code.

For the following reasons, we affirm the decision of the probate court and find that this appeal is not

frivolous.

III. DISCUSSION

A. Law of the Case Doctrine

On appeal, Appellees argue that the issue presented by Appellant has been decided in Jenkins

I and that the law of the case doctrine prohibits reconsideration of the issue. We agree.

In Memphis Publishing Company v. Tennessee Petroleum Underground Storage Tank Board,

975 S.W.2d 303 (Tenn. 1998), our Supreme Court stated:

The phrase “law of the case” refers to a legal doctrine which

generally prohibits reconsideration of issues that have already been

decided in a prior appeal of the same case. 5 Am. Jur. 2d Appellate

Review § 605 (1995). In other words, under the law of the case

doctrine, an appellate court’s decision on an issue of law is binding

in later trials and appeals of the same case if the facts on the second

trial or appeal are substantially the same as the facts in the first trial

or appeal. Life & Casualty Ins. Co. v. Jett, 175 Tenn. 295, 299, 133

S.W.2d 997, 998-99 (1939); Ladd v. Honda Motor Co., Ltd., 939

S.W.2d 83, 90 (Tenn. App. 1996). The doctrine applies to issues that

were actually before the appellate court in the first appeal and to

issues that were necessarily decided by implication. Ladd, 939

S.W.2d at 90 (citing other authority). The doctrine does not apply to

dicta. Ridley v. Haiman, 164 Tenn. 239, 248-49, 47 S.W.2d 750,

752-53 (1932); Ladd, 939 S.W.2d at 90.

The law of the case doctrine is not a constitutional mandate

nor a limitation on the power of a court. 5 Am. Jur.2d Appellate

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Review § 605 (1995); Ladd, 939 S.W.2d at 90. Rather, it is a

longstanding discretionary rule of judicial practice which is based on

the common sense recognition that issues previously litigated and

decided by a court of competent jurisdiction ordinarily need not be

revisited. Ladd, 939 S.W.2d at 90 (citing other cases). This rule

promotes the finality and efficiency of the judicial process, avoids

indefinite relitigation of the same issue, fosters consistent results in

the same litigation, and assures the obedience of lower courts to the

decisions of appellate courts. Ladd, 939 S.W.2d at 90; 5 Am. Jur. 2d

Appellate Review § 605 (1995); 1B James W. Moore, Moore’s

Federal Practice P0.404[1] (2d ed. 1995); 18 Charles A. Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 4478, at 790 (1981).

Therefore, when an initial appeal results in a remand to the

trial court, the decision of the appellate court establishes the law of

the case which generally must be followed upon remand by the trial

court, and by an appellate court if a second appeal is taken from the

judgment of the trial court entered after remand. Miller, supra,

P0.404[1]. There are limited circumstances which may justify

reconsideration of an issue which was issue decided in a prior appeal:

(1) the evidence offered at a trial or hearing after remand was

substantially different from the evidence in the initial proceeding; (2)

the prior ruling was clearly erroneous and would result in a manifest

injustice if allowed to stand; or (3) the prior decision is contrary to a

change in the controlling law which has occurred between the first

and second appeal. See generally 5 Am. Jur. 2d Appellate Review §§

611-613 (1995 & 1998 Supp.); Miller, supra, P0.404[1]; Wright, et

al., supra, § 4478, at 790; see e.g. Jett, 175 Tenn. at 299, 133 S.W.2d

at 999 (“The former opinion of the Court of Appeals was the law of

the case on the second trial, and the evidence being the same, the

circuit judge could not have done otherwise than to submit this issue

of sound health to the jury . . . .”); Clingan v. Vulcan Life Ins. Co.,

694 S.W.2d 327 (Tenn. App. 1985) (The initial appeal did not

establish the law of the case because the facts in the second appeal

were not substantially the same as the facts in the prior appeal);

Arizona v. California, 460 U.S. 605, 618, n. 8, 103 S. Ct. 1382, 1391,

n. 8, 75 L. Ed. 2d 318 (1983) (The doctrine does not apply if the court

is “convinced that [its prior decision] is clearly erroneous and would

work a manifest injustice.”); Sherley v. Commonwealth, 889 S.W.2d

794, 798 (Ky. 1994) (The law of the case doctrine does not apply

where there has been an intervening change of controlling authority.)

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Memphis Publ’g Co., 975 S.W.2d at 306.

On appeal, Appellant argues that when this Court decided Jenkins II, this Court implicitly

overruled the portion of this Court’s decision in Jenkins I that related to the distribution of the

income generated by the intellectual property after July 1, 2000. We disagree.

Under the law of the case doctrine, this Court was bound in Jenkins II to our holding in

Jenkins I to the extent that one of the limited circumstances permitting reconsideration was not

present.1 Appellant argues in her reply brief that our prior holding in Jenkins I is contrary to the

subsequent change in the controlling law, i.e., our decision in Jenkins II. In Jenkins I, among

several issues, this Court “consider[ed] whether and to what extent the Surviving Spouse is entitled

to a share of income generated by the intellectual property in the Decedent’s estate.” Jenkins I, 8

S.W.3d at 288. In Jenkins II, we solely considered “the applicability of the ‘changing fraction’

method of calculation of estate income as provided for in T.C.A. § 35-6-202(b)(1), a part of the

revised Tennessee Uniform Principal and Income Act (TUPIA).” Jenkins II, 97 S.W.3d at 128.2

When this Court decided in Jenkins II the applicability of the ‘changing fraction’ method of

calculation as to the Decedent’s estate, Appellant did not raise any issue as to how this change in the

law affected income generated from the intellectual property held in Decedent’s estate. See id. at

130. In Jenkins II, we decided that the changing fraction method would apply to income generated

after July 1, 2000. Id. at 132. Our decision, however, affected only the percentage of income the

Surviving Spouse was entitled to receive. It did not affect the calculation of the total income earned

1

On appeal, Appellant has only contended that our holding in Jenkins I is contrary to Jenkins II so as to permit

reconsideration of the issue. W e would also note that the other two circumstances that may permit reconsideration are

not met in this case. On remand, the evidence at trial was not substantially different from the evidence presented at the

initial hearing. Further, we conclude that our prior ruling on this issue was not clearly erroneous and has not worked a

substantial hardship on Appellant.

2

Section 35-6-202 of the Tennessee Code states in pertinent part:

(b) In determining a beneficiary’s share of net income, the following rules apply:

(1) The beneficiary is entitled to receive a portion of the net income equal to the

beneficiary’s fractional interest in the undistributed principal assets immediately

before the distribution date, including assets that later may be sold to meet principal

obligations.

(2) The beneficiary’s fractional interest in the undistributed principal assets must

be calculated without regard to property specifically given to a beneficiary and

property required to pay pecuniary amounts not in trust.

Tenn. Code Ann. § 35-6-202(b)(1)-(2). This was a change in the law subsequent to our decision in Jenkins I. In Jenkins

I, we were asked to adopt this method of calculation, which we refused to do. Jenkins I, 8 S.W.3d at 287-88. Because

the enactment of section 35-6-202 of the Tennessee Code was a change in the law that met one of the circumstances

permitting reconsideration under the law of the case doctrine, this Court decided this issue in Jenkins II and determined

that this method of calculation applied to income earned by the D ecedent’s estate after July 1, 2000. Jenkins II, 97

S.W .3d at 131-132.

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by Decedent’s estate from which the Surviving Spouse would receive her percentage amount. As

to that calculation, we stated in Jenkins I:

The Surviving Spouse is entitled to receive as part of her

elective share assets equal to one-third of the value assigned to the

Decedent's intellectual property. Included in this value is an amount

equal to the projected future income that this property is expected to

earn over the next twenty years. If the Surviving Spouse is also

permitted to receive a one-third share of the income received by the

Decedent's estate during its administration, she would effectively be

receiving the same income through two separate avenues. We decline

to approve such a method of distribution that allows the Surviving

Spouse to take a “double-dip” of the income generated by the

Decedent's intellectual property.

Jenkins I, 8 S.W.3d at 288.

Accordingly, we find our holding in Jenkins I with regards to the treatment of the income

earned from the intellectual property of Decedent controlling as the law of the case. Thus, we need

not discuss the other issues raised pertaining to the income received from the Decedent’s intellectual

property.

B. Frivolous Appeal

In their brief, Appellees have petitioned this Court for an award of damages for frivolous

appeal predicated on section 27-1-122 of the Tennessee Code. Based upon the evidence in the

record, the briefs on appeal, and the oral arguments, we conclude that this appeal is not frivolous and

decline to award damages.

Section 27-1-122 of the Tennessee Code states:

When it appears to any reviewing court that the appeal from

any court of record was frivolous or taken solely for delay, the court

may, either upon motion of a party or of its own motion, award just

damages against the appellant, which may include, but need not be

limited to, costs, interest on the judgment, and expenses incurred by

the appellee as a result of the appeal.

Tenn. Code Ann. § 27-1-122 (2005). “A frivolous appeal is one that is devoid of merit, . . . or one

that has no reasonable chance of succeeding. . . .” Young v. Ballow, 130 S.W.3d 59, 67 (Tenn. Ct.

App. 2003) (citations omitted). An appeal has no reasonable chance of success when it “require[s]

revolutionary changes in fundamental standards of appellate review” for a reversal of the trial court’s

decision. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977). An appeal is frivolous if

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it “cite[s] no evidence or rule of law which would entitle them to a reversal or other relief from the

decree of the trial court.” Wells v. Sentry Ins. Co., 834 S.W.2d 935, 938 (Tenn. 1992) (citing

Kilpatrick v. Emerson Elec. Co., 685 S.W.2d 630, 632 (Tenn. 1985); Lambert v. Travelers Ins. Co.,

626 S.W.2d 265, 267 (Tenn. 1981)). “Determining whether to award these damages is a

discretionary decision.” Young, 130 S.W.3d at 67 (citing Banks v. St. Francis Hosp., 697 S.W.2d

340, 343 (Tenn. 1985)).

In this third appeal, Appellant argued that the second appeal implicitly overruled the first

appeal creating a change in controlling law, which the trial court did not follow. Even though this

argument was tenuous, we cannot say that it was devoid of merit or had no reasonable chance of

success. Accordingly, Appellees’ request for damages for frivolous appeal is denied.

IV. CONCLUSION

For the reasons set forth herein, we affirm the probate court’s decision. Costs of this appeal

are taxed to Appellant, Dolores Henry Jenkins and her surety, for which execution may issue if

necessary. In addition, we decline to award damages for frivolous appeal.

ALAN E. HIGHERS, JUDGE

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