The opinion
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
NANCY COCKRILL, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9703-CV-00113
VS. )
) Davidson Circuit
JUDGE JAMES EVERETT, JUDY ) No. 96C-2299
NEWELL, MAXINE BRADLEY, RON
STONE, CHARLES CORNELIUS,
FELLER BROWN AUCTIONEER
)
)
)
FILED
REALTORS, ) September 24, 1997
)
Defendants/Appellees. ) Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
NANCY COCKRILL
172-E Dellway Villa Apartments
Nashville, Tennessee 37207
Pro Se/Plaintiff/Appellant
JUDY NEWELL
4014 Drakes Branch Drive
Nashville, Tennessee 37218
Pro Se/Defendant/Appellee
MAXINE C. BRADLEY
410 Farris Avenue
Madison, Tennessee 37115
Pro Se/Defendant/Appellee
RICHARD L. COLBERT
511 Union Street, Suite 2700
Nashville, Tennessee 37219
Attorney for Defendant/Appellee Charles G. Cornelius
HOMER R. AYERS
303 Frances Street
Goodlettsville, Tennessee 37070-0904
Attorney for Defendant/Appellee Feller Brown Auctioneer Realtors
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
OPINION
A pro se plaintiff filed this action for damages against a deceased
probate judge, a real estate auction company, a lawyer, and two individuals. The
Circuit Court of Davidson County granted the motions of the lawyer and the auction
company to dismiss for failing to state a claim. Acting sua sponte, the court also
dismissed the complaint against all the remaining defendants. We affirm.
I.
The complaint sought $350,000 damages for negligence and
mismanagement of the estate of Ira Richards Cockrill. The complaint does not
explain the plaintiff’s interest in, nor the defendants’ relationship to the estate. Among
the allegations is one “That this complaint is brought under authority of T.C.A. 29-20-
201, et. seq. that notice was timely given per attached exhibit 1. and that said
complaint is proper under removal of immunity, T.C.A. 29-20-205.”
Tenn. Code Ann. § 29-2-201, et seq. deals with the removal of immunity
for governmental entities under the Tennessee Governmental Tort Liability Act. No
governmental entities have been named as defendants, and how the cited legislation
affects the controversy is not explained in the complaint.
From the remaining allegations in the complaint we gather that the
decedent owned a parcel of real estate at his death and that someone (not any of the
defendants) lived in it rent free for seventeen years despite the protests of the heirs,
and their insistence that the interloper be removed; that the plaintiff thinks the
“executors” mismanaged the estate and profited from it to the detriment of the heirs;
that the probate judge erred in not removing the interloper from the property, and then
ordering the property sold through the auction company.
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II.
The Lawyer and the Auction Company
The lawyer defendant and the auction company filed motions to dismiss
under Rule 12.02(6), Tenn. R. Civ. Proc. We agree that the complaint does not state
a cause of action against either. After being mentioned in the caption, the lawyer’s
name does not thereafter appear in the complaint. As to the auction company, by
engaging in a broad view of the complaint, we could interpret it as stating that the
auction company sold the property under the orders of the probate court.
There is no allegation in the complaint that either defendant engaged in
any wrongful conduct or breached any duty to the individual plaintiff or to the estate.
Therefore we conclude that the lower court properly dismissed these two defendants.
III.
The Two Individual Defendants
The other two individual defendants filed an answer. Without identifying
their relationship to the estate, they denied the material allegations in the complaint
and alleged that the records of the probate court would show that they used their best
efforts to evict the interloper and to get the property sold. The answer also asserts
that the proceeds from the sale of the property were divided equally among the heirs.
We think a reasonable conclusion to be drawn from the answer is that the two
individuals filing the answer were representatives of the estate in some capacity.
Despite the conclusion to be drawn from the answer, the lower court dismissed the
complaint sua sponte.
We agree that the complaint should have been dismissed -- even on the
court’s own motion. Defenses of the failure to state a claim and the lack of subject
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matter jurisdiction of the court are not waived by filing an answer to the complaint.
Tenn. R. Civ. Proc. 12.08. They may be raised at any time, even at a trial on the
merits, id., and the court has the authority to dismiss the complaint sua sponte.
Huckeby v. Spangler, 521 S.W.2d 568 (Tenn. 1975).
Taking the allegations of the complaint in the light most favorable to the
plaintiff, this is an action for damages against the two named individuals for not taking
control of the decedent’s real property and for not selling it in a reasonable manner.
Even if we take the answer as an admission that the two individuals represented the
estate in some capacity, the real property of the decedent descends to the heirs or
passes to the devisee under the will, and the executor or administrator cannot
manage or dispose of it. Gray v. Boyle Inv. Co., 803 S.W.2d 678 (Tenn. App. 1990).
“In short, the executor or administrator has nothing to do, virtute officii, with the lands
of the decedent, except to subject it, in case of the insolvency of the personalty, in the
mode prescribed by statute, to the satisfaction of the decedent’s debts.” Pritchard on
Wills and Administration of Estates, Fifth Ed. § 630; Edwards v. McCall, 10 Tenn. App.
276 (1929).
Apparently the property in this case was sold to pay the debts of the
decedent (although that is not clear from the record), but the complaint alleges that
the sale was conducted under the orders of the probate court. In short, the complaint
does not state a breach of duty to the plaintiff for which the individual defendants are
liable in damages.
If we construed the complaint as an action to open the accounts of the
personal representatives, we would have difficulty with the question of the circuit
court’s jurisdiction. While the courts have recognized the inherent power of the
chancery court to open and review accounts generally, Cannon v. Apperson, 82 Tenn.
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553 (1885), we do not know of any authority to conduct such a proceeding in the
circuit court.
The judgment of the lower court is affirmed and the case is remanded
to the Circuit Court of Davidson County for any further proceedings necessary. Tax
the costs on appeal to the appellant.
_________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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