In Re Estate of Dorothy Jean McMillin

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 23, 2015

IN RE ESTATE OF DOROTHY JEAN MCMILLIN

Appeal from the Chancery Court for Knox County

No. 731563 Michael W. Moyers, Chancellor

No. E2014-01199-COA-R3-CV-FILED-FEBRUARY 12, 2015

This is an estate case. Appellant was the executor of his mother’s estate. Appellant’s

siblings, Appellees herein, brought suit against the Appellant in the Knox County

Chancery Court for depletion of the estate alleging he exercised undue influence over the

decedent to obtain certain funds for himself and his wife. A jury awarded the estate

$284,800, and that award is on appeal. While that appeal was pending, the Probate

Division of the Knox County Chancery Court heard Appellees’ motion filed in the estate

case to have the Appellant removed as executor of the estate. The Probate Division of

Knox County Chancery Court granted the Appellees’ motion removing the Appellant.

Appellant appeals, arguing that because the depletion case was on appeal, the Probate

Division of the Knox County Chancery Court lacked jurisdiction to remove him as

executor of the estate. Discerning no error, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Appellant Paul L. McMillin, Knoxville, Tennessee, pro se.

Bruce Hill, Sevierville, Tennessee, for the appellees, James McMillin and Iris Davenport.

OPINION

I. Background

1

Dorothy Jean McMillin (“Decedent”) died testate on November 18, 2012. The devisees

under the Decedent’s will were her children: Paul McMillin (“Appellant”), James

McMillin, Iris Davenport, and Linda Cole. The will designated Paul McMillin as

executor of the estate. On March 28, 2013, James McMillin and Iris Davenport (together,

“Appellees”) brought suit against Paul McMillin for depletion of the estate (“the

depletion case”) in Knox County Chancery Court. In their lawsuit, the Appellees alleged

that the Appellant had exercised undue influence over the Decedent and had, thereby,

obtained hundreds of thousands of dollars from the estate. After a two-day trial, a jury

awarded the estate a judgment against Paul McMillin in the amount of $284,800. The

Knox County Chancery Court entered its final order in the jury trial on March 4, 2014.

On March 18, 2014, Appellant appealed that award to this Court in a separate appeal.1

On September 26, 2013, before the depletion case was decided, the Appellees filed a

motion in the Probate Division of the Knox County Chancery Court where the estate case

was pending to remove Paul McMillin as executor of the estate. On March 6, 2014, the

Clerk and Master of Chancery Court, acting as a Special Master, heard the motion. At

the hearing on the motion, Appellees argued that the Appellant had a conflict of interest

that prevented him from being able to carry out his fiduciary duties to the estate. The

Special Master orally presented findings and conclusions on March 31, 2014 and

recommended, in his report dated April 1, 2014, that Paul McMillin be removed as

executor of the estate and the estate letters be revoked. On May 23, 2014, Chancellor

Moyers, acting as Probate judge, entered an order adopting the Special Master’s report

and removing Appellant as executor of the estate. Paul McMillin appeals.

II. Issue

The only issue before this court is whether the Probate Division of the Knox County

Chancery Court had jurisdiction to remove Paul McMillin as executor of Decedent’s

estate.

III. Analysis

We review this case to determine whether the trial court had jurisdiction to remove the

Appellant as executor of the estate while the depletion case is on appeal. Although not

specifically implicated by Appellant’s argument, we first review whether the trial court

had subject matter jurisdiction. “Subject matter jurisdiction may be raised at any time by

the parties or by the appellate court sua sponte on appeal.” Holley v. Holley, 420 S.W.3d

756 (Tenn. Ct. App. 2013) (citing County of Shelby v. City of Memphis, 365 S.W.2d 291

(Tenn. 1969)). Because “a determination of whether subject matter jurisdiction exists is a

question of law, our standard of review is de novo, without a presumption of

correctness.” Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

1

Case No. E2014-00497-COA-R3-CV.

2

“Tennessee’s courts derive subject matter jurisdiction from the state constitution or a

legislative act.” Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013). Tennessee Code

Annotated Section 16-16-201(a) provides that “In all counties where not otherwise

specifically provided by public, private, special or local acts, all jurisdiction relating to

the probate of wills and the administration of estates…is vested in the chancery court of

the respective counties.” It is well settled that courts exercising probate jurisdiction may

remove an executor. See Tenn. Code Ann. § 30-1-151 (“An executor or administrator

may be removed in accordance with the procedure in [Tennessee Code Annotated] § 35-

15-706.”); In re Estate of Thompson, 952 S.W.2d 429, 432 n.1 (Tenn. Ct. App. 1997).

A court may remove an executor if, “[b]ecause of unfitness, unwillingness, or persistent

failure of the [executor] to administer the [estate] effectively, the court determines that

removal of the [executor] best serves the interest of the beneficiaries.” Tenn. Code Ann. §

35-15-706(b)(3). In removing the Appellant, the chancery court was exercising probate

jurisdiction in this case, which includes the power to remove executors. This jurisdiction

has been conferred by statute, and, thus, we hold that the trial court had subject matter

jurisdiction to remove the Appellant as executor of the estate.

We now turn to the issue raised by Appellant of whether the trial court erred by deciding

the motion for removal while the appeal in the depletion case was pending before this

Court. The crux of Appellant’s argument appears to rest on the principle that trial courts

and appellate courts cannot have concurrent jurisdiction over the same case. Appellant

also asserts that the trial court lacked jurisdiction to remove him as executor of the estate

because the trial court relied on the judgment and evidence presented in the depletion

case to decide the motion for removal. Consequently, Appellant argues, the trial court

decided issues that are before this Court on appeal and, thus, acted beyond its

jurisdiction.

“Perfecting an appeal vests jurisdiction over the case in the appropriate appellate court.”

First American Trust Co. v. Franklin-Murray Development Co., L.P., 59 S.W.3d 135,

141 (Tenn. Ct. App. 2001) (citing State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn.

1996)). “[O]nce a party perfects an appeal from a trial court’s final judgment, the trial

court effectively loses its authority to act in the case without leave of the appellate court.”

Id. “An appellate court retains jurisdiction over a case until its mandate returns the case

to the trial court.” Id. (citing Raht v. Southern Ry. Co., 387 S.W.2d 781, 787 (Tenn.

1965)). “[I]t is well settled that a judgment beyond the jurisdiction of a court is void.”

Pendergrass, 937 S.W.2d at 837. Appellant contends that the appeal in the depletion

case brought the motion to remove within this Court’s jurisdiction, and, therefore, the

trial court’s order removing the Appellant is void for lack of jurisdiction. We disagree.

The depletion case and the estate case are two separate matters handled by two different

chancellors. The appeal of the depletion case in no way operated as a stay of the estate

proceeding which was pending in a separate division of the chancery court.

3

We now turn to Appellant’s argument that the Probate judge erred in relying on the

judgment in the depletion case to remove him as executor. As noted earlier, after an

evidentiary hearing, the Special Master made oral findings and recommendations. These

oral findings and recommendations were incorporated into a Master’s Report, which the

trial court later adopted as its final order. The Special Master reported that “there are too

many obvious conflicts existing within the [Appellant] individually and in his capacity as

a fiduciary to allow him to continue to remain as the executor of the estate.” The Special

Master further noted that there was a conflict in testimony regarding whether certain

money transfers by the Appellant were from one estate account to another, “with no

overall increase or decrease in estate assets, or whether disbursements reduced the overall

estate assets and benefited the executor to the detriment of the other beneficiaries.” The

Clerk and Master also reported that the testimony was “inconsistent with respect to

distributions to the executor’s biological son and step-son regarding…construction and

whether those benefited the [Appellant’s] family.” The Special Master noted that “there

are accounting issues for which an agreed order was entered requiring the executor to file

an inventory.” Despite these accounting issues and the agreed order, the Special Master

stated that “[n]o accounting or inventory [has] been supplied by the executor as ordered,”

and the Special Master determined that “an audit of the executor’s accounts will be

necessary in this administration.”

Based upon these findings, the Special Master concluded that “circumstances that exist in

this estate create an inescapable conflict of interest with [the Appellant’s] and his

family’s personal interests and the interests of the estate and beneficiaries.” Therefore,

the Special Master reported that “it was in the best interest of the estate and beneficiaries

that [the Appellant] be removed” as executor. The trial court in its order also concluded

that the Appellant’s conflict of interest was apparent, “based upon the judgment against

him in the favor of the estate for $284,000.00 which conflicts with his fiduciary duties

owed to the beneficiaries of the estate….”

It is well established that “a Court speaks through its orders and decrees….” Palmer v.

Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977). Although the trial court’s final

order very clearly concludes that a conflict of interest exists based upon the judgment

against the Appellant in favor of the estate, this is not the only ground that the trial court

relied on for its determination. As set out above, the Special Master reported the

existence of multiple estate accounts, payments to the Appellant’s family from estate

funds, and the Appellant’s failure to properly account for estate assets. These

circumstances were demonstrated by testimony at the hearing on the motion for removal,

and not from evidence presented in the depletion case. From the trial court’s order

adopting the Special Master’s findings and conclusion, we conclude that it was the

evidence adduced at the removal hearing, and not the jury award alone, that formed the

basis for the trial court’s decision to remove the Appellant as executor of the estate.

From our review of the transcript of the proceedings, the Master’s Report, and the trial

4

court’s final order, we cannot find, nor has the Appellant specified, any evidence from

which we could conclude that the trial court relied solely on evidence adduced at the

depletion trial in reaching its decision on removal. Moreover, Appellant has not

demonstrated how the issue of his removal was an issue decided in the depletion case.

The Appellant has not cited, nor does our research reveal, any caselaw from which we

can conclude that a trial court must wait for a pending appeal to be resolved before

relying on the evidence presented in that case. In any event, both the evidence and issues

presented to the trial court on the motion to remove were separate from the issues

presented in the depletion case which is now on appeal. Accordingly, the trial court did

not act outside its jurisdiction in removing Paul McMillin as the executor of the estate.

IV. Attorney’s Fees

The Appellees have requested that this Court award them attorney’s fees expended in

defense of this appeal on the ground that Appellant’s appeal is frivolous. Courts may

award damages to a non-appealing party when it appears that an appeal is frivolous or

taken solely to delay. See Tenn. Code Ann. § 27-1-122. “An appeal is deemed frivolous

if it is devoid of merit or if it has no reasonable chance of success.” Wakefield v.

Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2001). “[I]mposing a penalty for a

frivolous appeal is a remedy which is to be used only in obvious cases of frivolity and

should not be asserted lightly or granted unless clearly applicable—which is rare.”

Henderson v. SAIA Inc., 318 S.W.3d 328, 342 (Tenn. 2010). Although we resolve this

appeal in Appellees’ favor, we are not persuaded that this appeal is completely devoid of

merit. Therefore, we respectfully deny Appellees’ request for attorney’s fees.

V. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. The case is

remanded to the trial court for further proceedings as may be necessary and are consistent

with this opinion. Costs of this appeal are taxed to the Appellant, Paul McMillin, and his

surety, for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

5