In Re: Estate of Mattie L. Mettetal

10/02/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 19, 2018 Session

IN RE ESTATE OF MATTIE L. METTETAL, DECEASED

Appeal from the Probate Court for Washington County

No. P0956 John C. Rambo, Chancellor

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No. E2017-01258-COA-R3-CV

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The petitioner, Ray W. Mettetal, Jr., filed a declaratory judgment action seeking to

establish that the will of his mother, the deceased Mattie L. Mettetal, directs that the real

property devised to him in the will should be administered as part of the estate. Petitioner

asked the trial court to declare that the will required the administrator to pay the

$40,057.35 in costs and improvements expended by petitioner on the real property out of

the residuary of the estate. The court denied petitioner’s request. It held that the real

property vested immediately in petitioner at the deceased’s death, and therefore it was not

part of the probate estate for administration purposes. We affirm that decision. We

reverse the trial court’s order to the extent it directs that attorney’s fees, costs, and

expenses accrued in a prior appeal to this Court be deducted from petitioner’s distributive

share of the estate.

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

Affirmed in Part and Reversed in Part; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Harry Curtis Williams, Johnson City, Tennessee, for the appellant, Ray W. Mettetal, Jr.

Rebecca J. Ketchie, Kingsport, Tennessee, for the appellee, Joel A. Conkin,

Administrator C.T.A. of the Estate of Mattie L. Mettetal.

Brett A. Cole, Johnson City, Tennessee, for the appellees, Mattie Angelique Phipps and

Yvonne M. Rayburn.

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OPINION

I.

At an earlier time, the petitioner was sued by the administrator of the deceased’s

estate. In the prior suit, the trial court held that, during the deceased’s life, the petitioner

used his durable power of attorney to make numerous withdraws and purchases from the

deceased’s accounts for his personal benefit. On appeal of the earlier suit, this Court

affirmed. The extent of the petitioner’s abuse of his fiduciary power and conversion of

the deceased’s assets are outlined in this Court’s prior decision, in Conkin v. Mettetal,

No. E2015-141-COA-R3-SV, 2015 WL 9259962 (December 17, 2015) (holding that Dr.

Mettetal breached his fiduciary duty and improperly converted the deceased’s funds to

his benefit and the benefit of his corporation). Audaciously, petitioner now seeks

reimbursement from the deceased’s probate estate for expenses he unilaterally spent

improving and maintaining the real property he wholly inherited.

On December 9, 2009, the deceased died testate. On February 17, 2010, her last

will and testament was admitted to probate; Joel A. Conkin was appointed as

administrator of the estate. In Item three of the deceased’s will, she devised all of her real

property, in Washington County, Tennessee, to the petitioner. After the will was admitted

to probate, petitioner asked the administrator to have the estate reimburse him for various

expenses he expended on the real property he inherited. On March 16, 2010, the

administrator wrote the petitioner to inform him that the estate would pay expenses for

only four months after the deceased’s death, pursuant to applicable law, in exchange for

allowing the tangible personal property still in the estate to continue to be stored on the

premises. On April 15, 2010, the administrator informed the petitioner that petitioner

would be responsible for the utilities and maintenance of the real estate for April and all

subsequent months. On March 17, 2011, the administrator wrote petitioner to further

advise him that, “[p]ursuant to Tennessee law, the real estate passed to you upon your

mother’s death and, therefore, at this time, any income received from the rental property

is your income and not income of the estate.” The administrator informed petitioner that

he should report the rental income from the property on his personal tax return.

On October 31, 2011, petitioner filed this declaratory judgment petition. Therein,

he requested $40,057.35 for assorted expenses and improvements he unilaterally decided

to spend on the real property he inherited. These expenses and improvements included:

landscaping labor ($9,200), landscaping materials and repair ($11,957.06), real estate

taxes ($16,179.75), insurance premiums ($756), utilities ($1,638.54), and a security

system ($324). Petitioner asserts that these expenses were reasonable and necessary for

maintenance of the real property. He argues that from February 2002 until the present, he

“participated in and supervised the care, maintenance and repair of the [r]eal [p]roperty

including the houses, barn, outbuildings and grounds.”

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On August 23, 2012, the trial court heard argument on petitioner’s declaratory

judgment action and the administrator’s response. On September 25, 2012, the court

entered an order holding that the real property owned by the deceased vested immediately

in petitioner upon her death, and that it is therefore not part of the probate estate for

administration purposes. Petitioner’s request for expenses was denied.

II.

The following issues are presented for review:

Whether the trial court erred in denying petitioner’s request

for reimbursement from the estate for certain expenses he

expended on the real estate devised to him by the deceased.

Whether the court erred in finding that the respondent’s legal

fees and costs for opposing an appeal filed by petitioner in a

related case were chargeable against the distributive share of

petitioner.

III.

A declaratory judgment proceeding is proper for resolving disputes as to the

interpretation or construction of wills. Daugherty v. Daugherty, No. C.A. 145, 1987 WL

5338, at *1 (Tenn. Ct. App. Jan. 16, 1987); Sternberger v. Glenn, 175 Tenn. 644, 137

S.W.2d 269 (1940). This Court discussed the standard of review to be applied in cases

involving the construction of a will in Horadam v. Stewart:

The construction of a will is a question of law for the court;

therefore, we review the trial court's conclusions of law de

novo affording them no presumption of correctness. In cases

involving the construction of wills, the cardinal rule “is that

the court shall seek to discover the intention of the testator,

and will give effect to [that intent] unless it contravenes some

rule of law or public policy.” Furthermore, in will

construction cases, we rely on the language of the instrument

to determine the testator's intent:

[T]he testator's intention must be ascertained

from “that which he has written” in the will, and

not from what he “may be supposed to have

intended to do,” and extrinsic evidence of the

condition, situation and surroundings of the

testator himself may be considered only as aids

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in the interpretation of the language used by the

testator, and “the testator's intention must

ultimately be determined from the language of

the instrument weighed in the light of the

testator's surroundings, and no proof, however

conclusive in its nature, can be admitted with a

view of setting up an intention not justified by

the language of the writing itself.”

(Internal citations omitted). Horadam v. Stewart, M2007–00046–COA–R3–CV, 2008

WL 4491744, at *5 (Tenn. Ct. App. Oct. 6, 2008), Rule 11 appl. perm. appeal denied

April 27, 2009.

IV.

We first consider whether the deceased intended the real property inherited by

petitioner to be administered as part of her estate. As previous noted in this opinion, in

will construction cases, we rely on the language of the instrument to determine the

testator’s intent. See In re Estate of Schubert, 2015 Tenn. App.

LEXIS 552 (July 15, 2015). In this case, the parties’ disagreement centers on how Items

Three and Seven of the deceased’s will are to be interpreted in light of one another.

Petitioner argues that the plain language of Items Three and Seven of the will, when read

in conjunction, dictate that the real property is to wholly vest in petitioner, but that it is

first to be administered as part of the probate estate. He argues that all expenses regarding

the maintenance and improvement of the real estate must therefore be paid out of the

probate estate.

Tenn. Code Ann. § 31-2-103, which controls the vesting of real property following

a death, provides in pertinent part:

[T]he real property of an intestate decedent shall vest

immediately upon death of the decedent in the heirs as

provided in § 31–2–104. The real property of a testate

decedent vests immediately upon death in the beneficiaries

named in the will, unless the will contains a specific provision

directing the real property to be administered as part of the

estate subject to the control of the personal representative.

Tenn. Code Ann. § 31-2-103 (2018). Item Three of the deceased’s will states in pertinent

part that:

[I] give, devise and bequeath all real estate owned by me at

the time of my death located in Washington County,

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Tennessee, including but not limited to my home and rental

house and approximately twenty-two (22) acres upon which

they are situated to my son, Ray Mettetal, Jr., if he shall

survive me by a period of thirty (30) days.

Petitioner in fact survived the deceased by more than thirty days, and therefore he

inherited the real property, in Washington County, Tennessee. In Item Seven C of the

will, which outlines powers of the administrator, it states in pertinent part that:

[A]ny real property which I own at my death is to be a part of

my probate estate and treated as forming part of my personal

estate for administrative purposes.

In reviewing the above provisions and attempting to ascertain the intent of the

testator, administrator relies on this Court’s discussion in In re Estate of Schubert,

2015 Tenn. App. LEXIS 552. Therein this Court was asked to determine when real

property owned by the decedent vested in the beneficiary. In making its decision, this

Court discussed terms commonly used in testamentary instruments to convey the

testator’s intent in devising real property. This Court held that the words “be given,”

when used in the Ms. Schubert’s testamentary instrument, indicated that further action

needed to be taken for the property to vest; the real property was to be “given” to the

beneficiary as part of his share of the estate. In so holding, the Court noted that when a

testator adds additional language, such as “devise” and “bequeath,” it indicates the

testator’s intent that no further action is to be necessary for the property to vest. See Id.

Enlightened by the above discussion, in the present matter, unlike the testamentary

instrument in In re Estate of Schubert, Item Three of the deceased’s will includes the

bequeathing terms “devise” and “bequeath.” We hold that these terms, as used in Item

Three of the deceased’s will, indicate the deceased’s desire to have the property located

in Washington County, Tennessee vest immediately in petitioner at her death. No action

was required of the estate for that property to vest in petitioner. Item Seven serves to

empower the administrator with the ability to dispense with any additional real property

that the deceased may have owned at her death – i.e. real property other than the real

property in Washington County, Tennessee specifically left to petitioner.

The conduct of the petitioner before and after the deceased’s death further

supports the above will construction. The record reflects that petitioner has exercised

complete control over the real property devised to him since the deceased’s death. He

lives in the primary residence. He negotiated and entered into leasing agreements

allowing tenants to occupy other buildings on the property. He has retained all of the

rental income for himself – a sum in excess of $55,000. Furthermore, on December 11,

2014, while the estate was still open, he executed a quitclaim deed for the real property

from himself to himself, and had the deed recorded. Then, on November 3, 2015, he

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executed an Open End Deed of Trust pledging the property to secure a loan from First

Tennessee Bank with a maximum indebtedness of $400,000. Respondent argues that

petitioner is accordingly estopped from asserting the property did not immediately vest,

because

[t]he Administrator (on behalf of the estate) and First

Tennessee Bank relied on Dr. Mettetal’s ownership of the

property to their detriment by allowing Dr. Mettetal to live on

the property, paying four months of expenses in exchange for

storage space on the property, forbearing from demanding

rental income from the property, and accepting the property

as security for a $400,000 loan.

We agree and affirm.

V.

In Conkin v. Mettetal, No. E2015-141-COA-R3-SV, 2015 WL 9259962, an

appeal from the Chancery Court for Washington County, Civil Action No. 41871, the

administrator requested an award of attorney’s fees and expenses in the amount of

$16,356.16 for services necessitated by the appeal. This Court declined to award the

requested attorney’s fees and expenses against the current petitioner, because the

administrator failed to cite legal authority supporting the request. See Conkin v. Mettetal,

No. E2015-141-COA-R3-SV, 2015 WL 9259962 (Tenn. Ct. App. Dec. 17, 2015). The

administrator filed a petition for rehearing on the issue of attorneys’ fees and expenses.

On February 8, 2016, this Court denied the petition. On June 23, 2016, the application for

permission to appeal was denied by our Supreme Court.

On September 6, 2016, the administrator filed his petition with the trial court for

approval of the executor and attorney’s fees, costs, and expenses he incurred representing

and administering the estate. In that petition, administrator again asked that the fees he

accrued because of the above referenced appeal be levied against the current petitioner,

and be deducted from petitioner’s distributive share of the estate. On October 11, 2016,

the court entered an order approving his request. In its order, the court stated that:

[t]he Court further finds that fees and expenses in the total

amount of Sixteen Thousand Three Hundred Fifty-Six Dollars

and Sixteen Cents ($16,356.16) attributable to the

Administrator’s resistance of the appeal of the Judgment

entered November 14, 2014, and the Rule 60.01 Order

entered December 2, 2014, in the case of Joel A Conkin,

Administrator With Will Annexed to the Estate of Mattie L.

Mettetal v. Ray W. Mettetal, Jr., M.D. and Ray W. Mettetal,

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Jr., M.D., Inc., Chancery Court for Washington County,

Tennessee, Civil Action No. 41871, were reasonable and

necessary to preserve and recover assets rightfully belonging

to the Estate of Mattie L. Mettetal, and that said fees and

expenses should be charged against the distributive share of

Ray W. Mettetal, Jr. M.D. of the Estate of Mattie L. Mettetal.

Petitioner argues that the doctrine of res judicata precluded the trial court from

subsequently awarding attorney’s fees incurred in the previous appeal specifically against

petitioner’s distributive share of the estate, in its October 11, 2016 order. Respondent

counters that the doctrine of res judicata does not apply, because

this Court did not deny the Administrator’s request for

attorney’s fees. The Court’s disinclination to award attorney’s

fees was not a final decision on the merits; rather it was based

on its belief that the issue was inadequately raised on appeal.

The Court then remanded the case for proceedings in the

Chancery Court below consistent with its opinion.

(Emphasis in original).

Under the doctrine of res judicata, a final judgment on the merits that is rendered

by a court of competent jurisdiction concludes the rights of the parties and their privies,

and, with respect to them, bars a subsequent action involving the same claim or cause of

action. Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995). If a

judgment on the merits is final for purposes of res judicata, it resolves all the issues in the

case, leaving nothing else for the trial court to do. Hooker v. Haslam, 393 S.W.3d 156,

169 (Tenn. 2012) (citing In re Estate of Ridley, 270 S.W.3d 37, 40 (Tenn. 2008)). This

Court has stated that “it is sufficient that the status of the action was such that the parties

might have had their suit thus disposed of, if they had properly presented and managed

their respective cases.” Brown v. Shappley, 290 S.W.3d 197, 200–01 (Tenn. Ct. App.

2008); Madyun v. Ballard, 783 S.W.2d 946, 948 (Tenn. Ct. App. 1989) (quoting Parkes

v. Clift, 77 Tenn. 524 (1882) (stating that “the decision may be clearly wrong, or may be

against the losing party because he…failed to present his case as the facts within his

knowledge, or obtainable by reasonable diligence, would have enabled him to do[]”).

In this Court’s December 17, 2015 opinion, which resolved the appeal of

Washington County Civil Action No. 41871, we held that “we decline to award the

Administrator attorney’s fees and expense on appeal.” Administrator’s subsequent

request that the trial court order petitioner to pay the fees accrued as a result of the appeal

of Civil Action No. 41871 was precluded by this Court’s prior holding. The trial court’s

granting of administrator’s request, in its October 11, 2016 order, was therefore in error.

That issue had already been ruled on by this Court as legally deficient, and the trial

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court’s decision was not consistent with our opinion. We reverse the trial court’s October

11, 2016 order to the extent it directs that the attorney’s fees, costs, and expenses accrued

in the appeal of Civil Action No. 41871 was to be charged against the distributive share

of petitioner.

However, the administrator is still “entitled to reasonable compensation for [his]

services[] and to payment from the estate for reasonable expenses incurred in good faith

for the exclusive and necessary benefit of the estate.” In re Estate of Sanderson, No.

W2001-01938-COA-R3CV, 2002 WL 31423847, at *5 (Tenn. Ct. App. Oct. 28, 2002);

In re Estate of Wallace, 829 S.W.2d 696, 700–701 (Tenn.Ct.App.1992) (internal citation

omitted). Therefore, we direct that the trial court is to grant administrator the fees, costs,

and expenses it deems reasonable and necessary for representing and administering the

estate; it is to be taken from the residuary of the estate as a whole. At the court’s

discretion, and pursuant to applicable law, it may also consider awarding administrator

additional attorney’s fees, expenses, and costs incurred in this action, if any are so

requested.

VI.

The judgment of the trial court is affirmed in part and reversed in part. Costs on

appeal are taxed to the appellant, Ray W. Mettetal, Jr. This case is remanded to the trial

court for further proceedings, pursuant to applicable law, consistent with this opinion.

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CHARLES D. SUSANO, JR., JUDGE

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