“Courts have routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.”
How later courts described this case
- “Courts have routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.”
- failure “to cite to any authority or to construct an argument regarding [a] position on appeal” constitutes a waiver of the issue
Written by the judges who cited it.
The opinion
01/08/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 15, 2019 Session
IN RE ESTATE OF GLADYS YARBORO LLOYD
Appeal from the Chancery Court for Knox County
No. 76389-2 Robert E. Lee Davies, Senior Judge
___________________________________
No. E2017-02563-COA-R3-CV
___________________________________
In this probate proceeding, the trial court applied the no contest provision of the will to
prevent the beneficiary from inheriting under the will, holding that certain actions and
issues raised by the beneficiary triggered the provision. The court also imposed sanctions
pursuant to Rule 11.03 of the Tennessee Rules of Civil Procedure against the disinherited
beneficiary and her attorney for filing an improper lien on real property of the decedent
and in refusing to remove the lien, thereby requiring the estate to seek judicial relief. The
beneficiary and her attorney appeal the application of the no contest clause and the
imposition of sanctions. Upon our review, we discern no error warranting reversal and
accordingly, affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.
Paul Emmet Kaufman, Atlanta, Georgia, for the appellant, Yarboro Ann Sallee.
Wynne du M. Caffey-Knight and John Towers Rice, Knoxville, Tennessee, for the
appellee, Brian Krebs.
Brown F. Lloyd, Knoxville, Tennessee, Pro Se.1
OPINION
Gladys Yarboro Lloyd died on May 14, 2015, in Knoxville, Tennessee, at the age
of 83; she was survived by her husband, Brown Lloyd, and two daughters from a
1
Mr. Lloyd elected not to file a brief and has requested that he be listed as a “nonparticipating party” in
this appeal and that the “case be submitted on the record and the brief filed by Mr. Krebs.”
previous marriage, Yarboro Ann Sallee and Yancey Krebs. Ms. Lloyd died testate, and
her will named her husband as Personal Representative and her son-in-law, Brian Krebs,
as successor Personal Representative. On May 19, 2015, Mr. Lloyd executed an affidavit
declining to serve as Personal Representative and consenting to the appointment of Mr.
Krebs; on June 8, Mr. Krebs filed a petition to admit the will to probate, and the will was
duly admitted and letters testamentary issued to him on June 9.
On October 30, 2015, Ms. Sallee, who is an attorney and proceeded pro se, filed a
pleading which consisted of three motions; one was entitled “Motion for Full Accounting
by Executor of All Financial Matters Including the Matter of the Million Dollar Appeal
of Benefits My Mother Owned of Over One Million Dollars”, one entitled “Motion for
Quantum Meruit Payment for Work Performed by Attorney Sallee for Three Years in
Benefits Million Dollar Case”, and one entitled “Motion to Compel the Production of All
Materials and Files Related to the Motions.” The Personal Representative responded to
the motions on February 2, 2016; pertinent to the issues raised in this appeal, the response
states:
RESPONSE TO MOTION FOR FULL ACCOUNTING
3. The Movant is not, in her individual capacity, a beneficiary under
the Will. The Movant is the beneficiary of demonstrative bequests of
personal effects pursuant to a writing left by the Decedent in accordance
with Article I, Paragraph C of the Will, a copy of which was filed with the
Court along the original Will. The Personal Representative intends to
comply with wishes of the Decedent as set forth in this writing.
Accordingly, the Movant lacks standing to request said accounting.
4. Further, as to the issue of the Movant’s entitlement to an
accounting, the Personal Representative notes that: (i) the Movant is the
beneficiary of a trust which is merely the recipient of a specific devise of
real property under Article I, Paragraph A of the Will, (ii) said specifically
devised real estate is part of the probate estate pursuant to the fifth
paragraph of Article II, (iii) the decedent was survived by her husband,
Brown F. Lloyd, and accordingly the sole beneficiary of the Decedent’s
residuary estate under Paragraph III, Paragraph A, is a trust of which the
decedent’s husband is the current beneficiary.
RESPONSE TO MOTION FOR QUANTUM MERUIT
1. The Motion as filed does not constitute a valid claim against the
Decedent’s estate under T.C.A. §30-2-307 as it does not include an itemized
statement of account, copy of the written instrument or certified judgment
or decree as required by TC.A. §30-2-307(b), does not appear to have been
2
filed in triplicate as required by T.C.A. §30-2-307(c) and as a purported
claim is void ab initio.
2. A copy of the Notice to Creditors was provided to the Movant on
November 17, 2015 via both certified mail return receipt requested (which
was returned as unclaimed) and regular U.S. Mail, a copy of which is
attached as Exhibit B. To date, no claim has been filed, and the time for
filing a valid claim pursuant to T.C.A. §30-2-307 has passed. Accordingly,
any claim which might subsequently be filed against the Estate by the
Movant on quantum merit or any other matter on any grounds is time
barred.
Over the next eight months, Ms. Sallee filed more than ten similar pleadings,
most of which contained multiple motions illustrating her dissatisfaction with the
administration of her mother’s estate and prayers for relief of various sorts.2,3 On June
2
Examples of the pleadings included one filed February 8, 2016:
1. PETITION FOR THE REMOVAL OF EXECUTOR BROWN F. LLOYD AND
FOR THE REMOVAL OF ALTERNATE EXECUTOR BRYAN KREBS AND TO
NAME YARBORO SALLEE AS EXECUTOR OF THIS ESTATE
2. PETITION TO REMOVE BROWN LLOYD AND BRYAN KREBS AS
TRUSTEES AND NAME YARBORO SALLEE AS TRUSTEE AND AN
UNBIASED THIRD PARTY AS TRUSTEE
3. PETITION FOR REMOVAL OF ESTATE ATTORNEY LAUREN BROWN AND
HER FIRM DUE TO MALFEASANCE AND MISHANDLING OF THE ESTATE
4. ALL ITEMS BE ORDERED DISTRIBUTED TO PETITIONER IMMEDIATELY
And one filed February 26, 2016:
1. MOTION TO STRIKE FEBRUARY 18TH SECRET HEARING FOR GROSS
IMPROPRIETY AND FOR CLERK HOGAN TO FORMALLY RECUSE
HIMSELF DUE TO GROSS IMPROPRIETY & MOTION TO COMPEL
PRODUCTION OF THE TRANSCRIPT CREATED BY GAMMELTOFT’S
COURT REPORTER IN THE INTEREST OF FAIRNESS
2. RENEWED MOTION TO COMPEL PRODUCTION OF FULL ACCOUNTING
AND TO DENY MOTION TO FRAUDULENTLY CLAIM PETITIONER HAS
CHALLENGED WILL WHEN THIS WAS SPECIFICALLY NOT DONE AND
FORMALLY ASSIGN PETITIONER AS CO-TRUSTEE PURSUANT TO THE
WILL
3. RENEWED MOTION TO REMOVE EXECUTOR BROWN LLOYD AND
BRYAN KREBS AS FAILING IN THEIR FIDUCIARY DUTY TO PETITIONER
BY ACTING GROSSLY UNJUSTLY AND ABUSIVELY AND NOT
COMPETENTLY WHEN COMPARED WITH OTHER INDIVIDUALS WHO
RECEIVED “BEQUESTS”.
4. MOTION IN OPPOSITION OF GAMMELTOFT’S MOTION TO MAKE
“MEMORANDUM” PART OF THE AND DEMAND BY PETITIONER FOR
PRODUCTION OF ALL ITEMS LISTED IN THIS “MEMORANDUM” TO
3
24, 2016, the Estate filed a motion seeking a declaratory judgment as to whether Ms.
Sallee’s conduct constituted an attack on the validity of the Will, thereby triggering the
forfeiture clause at Article VI, paragraph 7 of the will, and resulting in the loss of her
inheritance.4 On December 2, 2016, the trial court entered an order stating that “upon the
agreement of all parties concerned and the entire record as a whole, the heir, Yarboro
Ann Sallee hereby withdraws all Motions heretofore filed.”
The trial court held a hearing on the Estate’s motion on March 21, 2017, and
entered an order on April 6, holding that “[t]he actions of Yarboro Ann Sallee were a
contest or attack on the validity of the Will of Gladys Yarboro Lloyd” and that “[t]hese
multiple attacks were not made in good faith or with reasonable justification.” The trial
court invoked the clause and excluded Ms. Sallee from receiving any disposition under
PROVE NOT DISBURSED PURSUANT TO LAUREN BROWN’S EMAIL OF
LAST MONTH DENYING ANY ITEMS HAD BEEN DISTRIBUTED.HER
MOTHER THAT WAS GIVEN BY WILLIAM EDGAR SALLEE SR. TO
DECEDENT.
5. RENEWED MOTION TO COMPEL PRODUCTION OF THE RENT OWED
PETITIONER AND ALL JEWELRY IN PARTICULAR THE ENGAGEMENT
RING LEFT TO PETITIONER BY DECEDENT WHEN RENT GWEN TO
FORMER SISTER LYNN KREBS MONTHS AGO
6. MOTION TO BAN EXECUTOR AND ESTATE ATTORNEY FROM ALLOWING
ANY SALE OF THE 112 PRATT AND PROPERTY EXCEPT TO SELL IT TO
PETITIONER
7. MOTION TO ORDER THE IMMEDIATE HALT OF ANY FINANCIAL ACTIONS BY
EITHER TRUSTEE, EXECUTOR OR ESTATE ATTORNEYS.
3
Also during this time, Ms. Sallee filed suit in federal court against Knox County and the Clerk and
Master, seeking recovery of the sum of $330,000, which she alleged the Clerk and Master and his office
had “misapplied and mishandled.” After initiating the federal suit, Ms. Sallee filed numerous motions in
the instant proceeding to recuse the Clerk and Master as well as the judges assigned to hear the case. In
due course, the Clerk and Master recused himself, along with the original Knox County Chancellor, and
the Anderson County Chancellor who was sitting by interchange; the Tennessee Supreme Court
appointed Senior Judge Robert E. Lee Davies to hear matters in this proceeding on January 4, 2017.
4
The forfeiture clause states:
DEFINITIONS AND CONSTRUCTION PROVISIONS
***
7. No Contest. If any person should, in any manner, directly or indirectly, contest or
attack the validity of this Will by filing suit against my Personal Representative(s) or
otherwise, then that contesting person and all descendants of that contesting person shall
be specifically excluded from receiving any disposition under this Will. Furthermore, no
parent may contest this Will on behalf of a minor child who is a beneficiary of this Will
and if they attempt to do so, that parent will be excluded from receiving any disposition
under this Will.
4
the will. Ms. Sallee moved to alter or amend the order, asserting that she had not
challenged the validity of the will and “would have had a good faith basis to challenge
the validity of the will had she chosen to.” The court granted the motion to “allow Ms.
Sallee to give testimony in order to explain her intent for the pleadings which she filed in
this case . . . so that the Court can make a further determination regarding the requirement
of good faith and probable cause.” An evidentiary hearing was held on September 8, at
which Ms. Sallee testified, and the court entered an order on September 25 affirming the
April 6 order. 5,6
On July 12, 2017, Ms. Sallee and her counsel, Paul Kaufman, recorded a lien
against property located at 112 Pratt Lane, Oak Ridge, which was owned by Ms. Lloyd at
her death, to secure payment of Ms. Sallee’s quantum meruit claim for services rendered
in the life insurance benefits matter referenced in the October 30, 2015 pleading. The
Personal Representative moved to require Ms. Sallee to release the lien; at an August 15,
2017 hearing, the court granted the motion and, on its own initiative, found that sanctions
should be imposed pursuant to Rule 11.03 of the Tennessee Rules of Civil Procedure
against Ms. Sallee and Mr. Kaufman for filing an improper lien. An order was entered on
August 31, nunc pro tunc to August 15, memorializing the oral ruling and directing the
Personal Representative’s attorneys to file affidavits of their time and expenses related to
getting the lien released and to serve those affidavits on Mr. Kaufman, “who may show
cause for why sanctions should not be awarded in that amount.” The court designated the
order as a final order pursuant to Rule 54.02, and Ms. Sallee and Mr. Kaufman filed a
notice of appeal on September 14.7
5
On June 8, 2017, Ms. Sallee, now represented by counsel, filed a pleading styled “BENEFICIARY
YARBORO ANN SALLEE’S NOTICE OF WILL CONTEST, DEVISIT [sic] VEL NON ACTION,
ELECTION OF KNOX COUNTY CIRCUIT COURT,” in which she challenged the validity of the will
on various grounds, and requested that Ms. Lloyd’s will be set aside. On July 12, 2017, Ms. Sallee filed a
document styled “RENEWED MOTION FOR CERTIFICATE OF WILL CONTEST FILED
ORIGINALLY ON JUNE 8TH, 2017,” in which she invoked Tennessee Code Annotated section 32-4-
101, et seq., and asserted the eight specific grounds of the contest. On August 31, 2017 the trial court
entered an order reciting that the Notice filed June 8 and Renewed Motion filed July 12 were withdrawn
with prejudice; the order was entered as a final judgment pursuant to Rule 54.02. These pleadings were
filed and the order entered after the court had entered the April 6, 2017 order holding that Ms. Sallee’s
actions constituted “a contest or attack on the validity of the Will of Gladys Yarboro Lloyd,” and that
“[t]hese multiple attacks were not made in good faith or with reasonable justification,” thereby excluding
Ms. Sallee from receiving any disposition under the will pursuant to the no contest clause, and prior to the
denial of the motion to alter or amend filed by Ms. Sallee. In light of this unique procedural history, we
will not consider the effect of the Notice and Renewed Motion in our review of the court’s ruling on the
Estate’s motion for a declaratory judgment as to the applicability of the no contest clause.
6
On October 27, Ms. Sallee filed a notice of appeal of this order. In this Court, the case was assigned the
number E2017-02563-COA-R3-CV.
7
The appeal of the August 15 order imposing sanctions was docketed as No. E2017-01860-COA-R3-
5
After the attorneys filed their affidavits, the court entered an order on September
21, awarding a judgment in the amount of $16,529.09 against Mr. Kaufman and Ms.
Sallee for attorneys fees incurred by the estate. On March 27, 2018, Ms. Sallee and Mr.
Kaufman filed a motion pursuant to Rule 60.02(2) and (5) to set aside the sanctions,
which the court granted in order to permit Mr. Kaufman to make arguments “which he
failed to make prior to the entry of the order on September 25 [sic], 2017.” By order
entered May 15, 2018, the trial court reaffirmed the August 24, 2017 order awarding
sanctions. Ms. Sallee and Mr. Kaufman filed a notice appealing this order, which was
docketed as No. E2018-00993-COA-R3-CV. The trial court subsequently entered an
order staying all efforts to execute the judgment regarding the Rule 11 sanctions pending
this appeal. By order entered August 27, 2018, this Court consolidated appeals Nos.
E2017-02563 and E2018-00993.
In their brief on appeal, Appellants state fifteen issues for resolution.8 The
CV; the notice of appeal stated:
Notice is hereby given that Yarboro Sallee, Beneficiary and her attorney Paul Kaufman
hereby appeal to the Court of Appeals from all aspects of the order dated August 31,
2017, nunc pro tunc to August 15, 2017 designated as a final judgment pursuant to
Tennessee Rule of Civil Procedure 54.02 from which appeal may be taken, even though
the amount of the Rule 11 sanctions has not been determined.
Ms. Sallee failed to file a transcript of the evidence, a statement of the evidence, or a notice that neither
would be filed, as required by Rule 24 of the Tennessee Rules of Appellate Procedure, resulting in the
dismissal of the appeal. After the mandate was issued, Ms. Sallee and her attorney filed a motion to recall
the mandate, to extend the time to comply with Rule 24, and to reinstate the appeal; the basis of the
motion was asserted to be the “excusable neglect because of the decompensated mental illness” of Mr.
Kaufman attorney and because “this case is not ripe for appeal because there remain unresolved issues in
the trial court.” The motion was denied; however, we directed that:
[Th]e Notice of Appeal filed on October 27, 2017, and directed to the final judgment in
the proceedings below entered in late September of 2017 [No. E2017-02563], shall be
considered by the Appellate Court Clerk as initiating a new appeal as of right from that
final judgment. The notice received from the Trial Court Clerk on January 4, 2018
[indicating that Ms. Sallee had not filed a transcript of the evidence in case E2017-
01860], shall be considered a part of the appeal initiated by the Notice of Appeal filed on
October 27, 2017. The appellants shall have sixty (60) days from the date of entry of this
order within which to comply in the appeal from the final judgment with Rule 24 of the
Tennessee Rules of Appellate Procedure.
Thus, in this appeal we will consider the rulings imposing sanctions against Ms. Sallee and Mr. Kaufman
and holding that Ms. Sallee’s conduct of this proceeding invokes the no contest clause of Ms. Lloyd’s
will.
8
In their reply brief they categorize the issues into three areas:
6
arguments in their brief do not address all fifteen issues, and most of the statements made
in the argument section of the brief are not supported by reference to the record or
citation to legal authority. From our review of the briefs of the parties as well as the
record we discern two dispositive issues: whether the trial court erred in its construction
and application of the no contest clause in the will, and whether the imposition of
sanctions was proper.9
II. ANALYSIS
A. The No Contest Clause
In Winningham v. Winningham, our Supreme Court acknowledged that, while a
forfeiture clause in a will is not void, it will not be enforced where the will contest is
undertaken in good faith:
This Court has recognized that a forfeiture provision in a will is not void as
against public policy. Tate v. Camp, 147 Tenn. 137, 149, 245 S.W. 839,
842 (1922); Thompson v. Gaut, 82 Tenn. 310, 314 (1884). However, it has
a) Issues 1 through 4 address errors regarding interpretation and application of the in
terrorem clause of the will;
b) Issues 5 through 10 . . . address the objections Appellant has voiced about the
manner in which the Appellee (or his counsel) were failing to fulfill their duties in
executing the terms of the Will, because of bad blood bias and conflicts of
interest, mismanagement of assets, and a failure to honor the fiduciary duty
required in the relationship and dealings with Appellant;
c) Issues 11 through 15 address the sanctions assessed sua sponte by the court
against Ms. Sallee and Mr. Kaufman for an action taken to secure a quantum
meruit claim against the estate after the trial court had already disinherited Ms.
Sallee under the in terrorem clause.
9
In Forbess v. Forbess, this Court observed that:
This court has repeatedly held that a party’s failure to cite authority for its arguments or
to argue the issues in the body of its brief constitute a waiver on appeal. Newcomb v.
Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006) (failure “to cite to any authority
or to construct an argument regarding [a] position on appeal” constitutes a waiver of the
issue); Bean v. Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000) (“Courts have routinely
held that the failure to make appropriate references to the record and to cite relevant
authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a
waiver of the issue.”).
370 S.W.3d 347, 355 (Tenn. Ct. App. 2011).
7
been the rule since Tate v. Camp, that a forfeiture provision will not be
enforced where a contest is pursued “in good faith and upon probable
cause.” After considering decisions from other jurisdictions, the Court in
Tate v. Camp approved the following from South Norwalk Trust Co. v. St.
John, 92 Conn. 168, 101 A. 961, 963 (1917), “‘Where the contest has not
been made in good faith, and upon probable cause and reasonable
justification, the forfeiture should be given full operative effect. Where the
contrary appears, the legatee ought not to forfeit his legacy.’” Tate v. Camp,
147 Tenn. at 155-56, 245 S.W. at 844.
966 S.W.2d 48, 51 (Tenn. 1998). Thus, we begin by examining the actions of Ms. Sallee
to determine whether the evidence supports the trial court’s holding that those actions
effectively initiated a will contest and whether the actions were pursued in good faith and
upon probable cause and reasonable justification. Our review of the court’s factual
determinations is de novo upon the record, accompanied by a presumption of correctness
of those findings, unless the preponderance of the evidence is otherwise. Tenn. R. App.
P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review the court’s
conclusions of law de novo without affording any presumption of correctness to those
conclusions. In re Estate of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App. 200) (citing In
re Estate of Vincent, 98 S.W.3d 146, 148 (Tenn. 2003)).
The Personal Representative sought to have the court determine whether Ms.
Sallee’s filings of “approximately twenty-six motions and/or petitions” “have constituted
an attack on the validity of the Will such as to trigger forfeiture of her inheritance under
the in terrorem clause under the Will.”
In the April 6, 2017 order, the trial court stated the factual basis of its holding that
Ms. Sallee’s conduct constituted a will contest thusly:
The issue is whether the pleadings filed by Ms. Sallee amount to
either a direct or an indirect attack upon the validity of the Will which
therefore triggers the no-contest provision.
In this case, Ms. Sallee has requested the Court to remove both the
executor and the alternate executor, and instead appoint her as executor of
Ms. Lloyd’s Will. She has made the same request regarding the trustees.
She has requested the Court to find both the personal representative and the
Estate’s attorney in contempt. She has requested the immediate payment of
all funds and personal items to which she claims she is entitled, even
though she is only the beneficiary of a testamentary trust which has not yet
been funded, and not a beneficiary under the Will. Finally, Ms. Sallee
produced a quitclaim deed purportedly executed by Ms. Lloyd transferring
all of the interest in the property at 112 Pratt Lane in Anderson County to
8
her.
The Court finds that the above actions by Ms. Sallee amount to, at a
minimum, indirect attacks upon the validity of her mother’s Will. In
particular, Ms. Sallee requested the Court to award her the entire interest in
112 Pratt Lane pursuant to the quitclaim deed, which is completely
inconsistent with the Will which devises said property forty percent (40%)
to Yancy Krebs and sixty percent (60%) to the Yarboro Sallee Trust. No
person can take any beneficial interest in a will, and at the same time set up
any right or claim of their own, even if well founded, which would defeat,
or in any way prevent, the full effect and operation of every part of the will.
Duncan v. Peebles, 192 S.W.2d 235, 241 (Tenn. Ct. App. 1945). The
pleadings filed by Ms. Sallee requesting the Court to award her the entire
interest in the property at 112 Pratt Lane and to grant her immediate
possession of said property was an intentional election to claim a complete
interest in the 112 Pratt Lane property under the purported quitclaim deed,
rather than as a beneficiary of the testamentary trust (60%) under the Will.
Thus, Ms. Sallee knowingly chose to challenge or contest the validity of
this section of the Will.
Ms. Sallee also contested the Will by filing vexatious pleadings. She
requested the removal of the executors and the trustees and appointing
herself instead. She asked the Court to enjoin the Estate from any
disbursement of funds. She petitioned the Court to require the Estate to
provide her with funds to hire her own attorney. She asked the Court to
order the immediate payment of all funds which she claimed were owed to
her, including rent, and she filed a motion to hold the personal
representative in contempt. All of these actions fly in the face of the
intended purpose of the no-contest clause in Ms. Lloyd’s Will, which was
to guard against vexatious litigation, Smithsonian Institution v. Meech,
supra at 402, and to exclude from her bounty those beneficiaries who
unsuccessfully sought to thwart her testamentary wishes. Lytle v. Zebold,
357 S.W.2d 20, 21 (Ark. 1962).
Having found that the actions of Yarboro Sallee have triggered the
no-contest provision of her mother’s Will, the Court then must determine
whether the pleadings filed by Ms. Sallee were done in good faith and with
probable cause or reasonable justification. Tate v. Camp, supra. With
regard to the quitclaim deed produced by Ms. Sallee purportedly
transferring the property at 112 Pratt Lane to her, the Estate in its separate
complaint, points out the following undisputed facts:
1. The deed was never recorded with the Register of Deeds
9
for Anderson County;
2. The name of the grantor on the quitclaim deed does not
match the name of the owner of record of the realty;
3. The quitclaim deed lacks the identity of the preparer of the
document;
4. The notarization on the deed is a jurat, not an
acknowledgement, which is required by Tenn. Code Ann.
§ 66-5-106.
In open Court on March 21, 2017, Ms. Sallee, through her new attorney,
Mr. Yuiil stated Ms. Sallee was withdrawing her claim based upon the
quitclaim deed. The Court notes that Ms. Sallee’s change of position is
directly contra to the legal position she took in her Answer to the
Complaint filed on October 4, 2016, to clear the cloud upon the title filed
by the Estate in the Chancery Court of Anderson County, Tennessee,
Docket No. 16CH8283. The actions by Ms. Sallee are clearly
distinguishable from the actions of Ms. Winningham in Winningham v.
Winningham, supra.
This Court finds there is not a scintilla of good faith or reasonable
justification in any of the above pleadings filed by Ms. Sallee.
We address first matters related to Ms. Sallee’s claims to the Pratt Lane property,
following which we will address the conduct of the litigation.
1. The Pratt Lane Property
With respect to the quitclaim deed upon which Ms. Sallee relied to argue that she
owned the property at 112 Pratt Lane, the Personal Representative asserted:
The real property located at 112 Pratt Lane consists of two parcels:
Tract One acquired by Ms. Sallee’s parents “William E. Sallee and wife,
Yarboro Barnette Sallee” in 1957 and Tract Two acquired by “William E.
Sallee and his wife, Yarboro B. Sallee” in 1960. In connection with the
Sallees’ divorce, the Decedent quitclaimed Tract One and Tract Two to her
ex-husband William E. Sallee by separate deeds in 1986, copies of which
deeds are of record in Warranty Deed Book N, Series 16 at Page 451 and
Warranty Deed Book N, Series 16 at Page 454 in the Register’s Office of
Anderson County, Tennessee. On June 10, 2010, the Decedent purchased
Tract One and Tract Two from the Estate of her deceased ex-husband
William Edgar Sallee, Sr., both of which were transferred to her via a
Personal Representative’s Deed of record in Deed Book 1523, Pages 1229-
1232 in the Register’s Office of Anderson County, Tennessee. Copies of all
10
referenced deeds are attached as collective Exhibit A.
The unrecorded Quitclaim Deed filed by Ms. Sallee (the property
description of which includes only Tract One), was allegedly signed by the
Decedent on July 16, 2009, a date upon which the Decedent did not own
the property. . . .
The record shows the following pleadings filed by Ms. Sallee relative to the Pratt
Lane property:
In a pleading February 26, 2016, Ms. Sallee sought to have the court “ban”
the personal representative and estate’s attorney from selling the property at
112 Pratt Lane. She alleged that “Brown Lloyd and the executor and his
wife, Bryan and Lynn Krebs, are colluding to force petitioner to sell a
house she owns 60% of and wants to purchase.”10
On May 31, 2016, Ms. Sallee filed a pleading requesting that the court
certify a codicil as part of the will; that certain items be distributed to her;
and that the court accept a quitclaim deed Mrs. Lloyd had purportedly
executed that transferred her interest in the 112 Pratt Lane property to Ms.
Sallee. In the pleading, Ms. Sallee alleged:
The codicil is affirmed in the body of the will that has already been
affirmed. Further, all items in the codicil have been distributed by
the executor Brown Lloyd and the executor Brian Krebs over one
year ago at the funeral of decedent. The executors only withheld
those items designated for Yarboro Sallee out of malice toward her.
In the same pleading, Ms. Sallee also sought to have the court “accept [a]
quit claim deed [executed] by Decedent to Petitioner as valid and transfer[]
to Petitioner all interests in 112 [Pratt Lane] Property held by Testatrix.”
The pertinent language of this portion of the motion states:
Attached is a copy of a quit claim deed signed by testatrix
transferring all of her interests in the 112 Pratt Lane property to
petitioner for this Court’s consideration. This document clearly sets
out that petitioner owns any interests held by testatrix in the
property at 112 Pratt Lane and also clearly documents the
intentions of testatrix to make this property available for the use
10
In her pleading, Ms. Sallee requested that the court enjoin the sale of the 112 Pratt Lane property to any
party but her “as she owns 60% of the property and it was the will of the decedent that she own the
property.”
11
of petitioner and to gift this property to petitioner. Petitioner moves
that this document be accepted and that she immediately be given
access to and possession of this property for her use. Additionally,
she requests that this Court order that Brown Lloyd, Brian Krebs
and Yancey Krebs be ordered to refrain from any interference
with petitioner’s use of this property and to stop any harassment
and or any interference of any kind with petitioner’s life,
employment and any aspect of petitioner’s life and pursuit of quiet
enjoyment and happiness by her such as stalking petitioner, entering
on to any property she occupies, contacting employers or potential
employers of petitioner, monitoring petitioner in any manner and
questioning friends and acquaintances of petitioner, taking pictures
of petitioner’s vehicles and property and defaming petitioner by
making false statements and statements that place her in to a false
light calculated to cause damage and destruction in petitioner’s life.
Petitioner only seeks to receive those funds and gifts her mother
intended for her to have and to be left undisturbed by any further
harassment by the present executors Brown Lloyd and Brian Krebs
and her former sister Yancey Krebs.
It is clear that testatrix’s intention was to provide a place for
petitioner’s use to reside if desired by petitioner and to provide
security and funds for her welfare, It is also clear that the
testatrix intended for petitioner to be treated fairly and for her
to have access to any funds and the property at 112 Pratt Lane
for her use and that the present and former executors Brown Lloyd
and Brian Krebs are colluding to interfere and prevent petitioner’s
right to such property and funds meant for her.
Whether one accepts the will and codicil as stated, or the fact that
the trust fund was named after petitioner, or that petitioner owns
60% or 100% of the property at 112 Pratt Lane, it was clearly the
intention of decedent to assist petitioner in any manner necessary[.]
The present executors collectively, in collusion with the other
beneficiary Yancey Krebs, have sought to deprive petitioner of her
right to access to property, funds and items left to her by her mother
and have acted to assist each other while reducing any and all gifts
and funds to petitioner.
(Emphasis added). In her prayer for relief, Ms. Sallee sought “[t]hat 100%
ownership of the 112 Pratt Lane property be determined to exist by petitioner of
the 112 Pratt Lane property pursuant to a quit claim deed signed by testatrix.”
In a pleading filed June 20, Ms. Sallee reiterated the same allegations as
above with respect to the quitclaim deed and alleged that “it was clearly the
12
intent of testatrix to provide for the needs of petitioner as she named the
trust the ‘Yarboro Sallee Trust’[; t]he drafting of the will seems to have
been so negligent (or malicious) as to have defeated the clear intents of
testatrix.” She also continued to allege that she owned the property at 112
Pratt Lane, and asked the court “. . . that she be given all items and funds
owed her immediately including all rents paid as petitioner owns the home
in full immediately.” The prayer for relief requested that the court “order
that the 112 Pratt Lane house belongs solely to petitioner and she be given
all the keys immediately with the deed signed over to her.”
The litany of pleadings shows that Ms. Sallee vigorously advocated that she was
entitled to receive a greater portion of the estate than that given to her in the Will and
persisted in that belief; as such, her actions constitute an indirect attack on the validity of
the Will.
2. The Conduct of the Litigation
In addition to the foregoing, the record contains the following documents which
are emblematic of the claims asserted and issues injected into this proceeding by Ms.
Sallee:
On February 8, 2016, Ms. Salle filed a pleading containing four different
petitions. In a portion of the pleading styled “Petition for Removal of Estate
Attorney Lauren Brown and her Firm Due to Malfeasance and Mishandling
of the Estate,” Ms. Sallee made the following representation:
1. First, Ms. Brown is not the attorney who signed the will[.]
[T]he attorney who should be handling this is Ms. Gammeltoft[,]
and Ms. Brown cannot handle the matter as she was not present at
the signing of the will nor did she handle the decedent’s estate.
Further, there will be the need for the testimony of Ms. Brown
concerning issues surrounding the sabotage of petitioner’s
employment by executor and attorney for the estat[e] Ms. Brown’s
involvement in this attack on petitioner and collusion with Mr.
Krebs and his involvement in other abuses of petitioner and Ms.
Gammeltoft will need to testify about the conditions of the will as it
appears that inappropriate actions were engaged in during the will
that petitioner will explore prior to deciding whether or not to
challenge the will in toto as invalid or fraudulent. At this time
petitioner is not challenging the will but petitioner is entitled to all
information available concerning and surrounding the preparation,
attendance, construction and all other circumstances surrounding
the “will” and petitioner does not waive her right to this information
13
and demands all available information be provided to petitioner
immediately.
(Emphasis added.)
In a pleading filed on February 26, Ms. Sallee made allegations that “assets
have been withheld from petitioner in a willful and malicious attempt with
collusion by Lauran [sic] Brown and her firm and Brown Lloyd and Krebs
to starve petitioner out to force her to sign off on the administration of the
estate without any accounting as is her right to demand.” She stated that she
“has made it clear that at this time she is not challenging the will,” yet she
also states that the will “has been drafted so badly” and is “subject to varied
interpretations.” In the same petition, she alleges:
The clear intent of the will of decedent, who states she is leaving
much greater funds and assets to petitioner than the other daughter of
decedent due to her health. The intent of the will is clear that
petitioner receives any and all funds she wants or needs at any time.
The fact that the estate attorney has badly written the will against the
stated intentions of the decedent in the body of the will means that
that firm is incompetent both ethically and functionally and the
interpretation of the will and the intent of the will, which is the duty
of the estate attorney, MUST be given to competent and ethical
attorney(s) and the executor who has colluded in this twisting of the
intent of the decedent’s will again makes him grossly unfit to serve
as executor and he should be removed immediately he accept a
ridiculous payment to petitioner for the item an offer which has been
refused but the ring is still being withheld while all other “gifts”
have been distributed over nine months ago.
The February 26 pleading also contains her opposition to the Estate’s
motion to make a memorandum Ms. Lloyd had prepared purporting to
dispose of personal effects a part of the will. Ms. Sallee argued that the
memorandum, which she identified as containing a list of personal property
her Mother wished to distribute to certain beneficiaries, was “drafted by the
estate[’s] firm,” was “improper,” and “does not properly follow the probate
laws.” She also states, after making these arguments, that “such argument
is NOT a challenging of the will.”
On March 5, 2016, Ms. Sallee filed a pleading titled “Responses by
Petitioner to Response of ‘Estate Attorney Lauren Brown’ on Behalf of
Alleged ‘Executor’ (There has been no legal Renunciation by Lloyd Bown)
Bryan Krebs.” It is unclear from the pleading precisely which pleading filed
14
by the Personal Representative she was responding to, but in her response,
Ms. Sallee states:
The intent of the decedent’s will is clear where she states, in her own
words, that she wants petitioner to have any funds she needs for any
matter including medical expenses, living expenses, educational
expenses and any expenses. The badly written will by Brown and
Gammeltoft clearly sets out the INTENT OF DECEDENT to assist
and provide for any needs of petitioner, any other interpretation is
grossly biased and defeats the CLEAR INTENT OF THE
DECEDENT AND PETITIONER SHOULD NOT BE PUNISHED
FOR THE INCOMPETENT WRITING BY GAMMELTOFT.
Protestations to the contrary notwithstanding, the volume, tone, and largely
unsupported allegations in the plethora of pleadings, many of which expressed her
dissatisfaction with the administration of the estate in various respects, including the non-
payment to her of funds she contended were owed to her, support the court’s holding that
Ms. Sallee contested the will by filing vexatious pleadings.
The record supports the determination that Ms. Sallee’s efforts with respect to the
Pratt Lane property and her conduct of this litigation, together with the trial court’s
adverse determination as to her credibility, support the holding that there was no good
faith basis, probable cause, or reasonable justification for Ms. Sallee’s efforts to secure a
different result than that clearly set forth by her mother in her Will.11 We affirm the
holding that she was excluded from taking under the will by application of the no contest
clause.
B. Rule 11 Sanctions
Ms. Sallee and Mr. Kaufman next appeal the trial court’s award of sanctions; the
order making the award, entered August 31, 2017, stated in pertinent part:
10. The Court finds that Mr. Kaufman and Ms. Sallee have deliberately
attempted to sabotage the closing on the 112 Pratt Lane Property by filing
the Lien, and that they filed the Lien only for the reason to tie up the Estate.
11. The Court finds that Mr. Kaufman and Ms. Sallee’s filing of the Lien
together with their subsequent advocacy of the Lien to the Court was
frivolous, done for an improper motive to harass, delay and obstruct
11
Following entry of the April 6 order, Ms. Sallee filed a motion to alter or amend, as a result of which
the court held another hearing to permit Ms. Sallee to testify, after which the court entered another order
in which the court detailed her testimony, found her not to be credible, and reaffirmed the April 6 order.
15
administration of the Estate, and that there was no basis whatsoever to file
or advocate for the Lien.
The Court then held:
ORDERED, ADJUDGED, and DECREED that the Court, on its own
initiative, has determined that the filing of the Lien by Ms. Sallee and Mr.
Kaufman and the advocacy of the Lien to the Court by Mr. Kaufman on
Ms. Sallee’s [behalf] violate Tenn. R. Civ. P. 11.02; it is further
ORDERED, ADJUDGED, and DECREED that the Court, on its own
initiative, is assessing sanctions against both Mr. Kaufman and Ms. Sallee
pursuant to Tenn. R. Civ. P. 11.03; it is further
ORDERED, ADJUDGED, and DECREED that Attorney Lisa Gammeltoft,
on behalf of the Law Firm Kizer & Gammeltoft, PC, and that Attorney
John Rice, on behalf of the Law Firm Elmore, Stone & Caffey, PLLC, are
directed to submit affidavits of time and expenses related to their filing the
Motion for Order Compelling Yarboro Sallee to Release Lien Wrongfully
Recorded Against the 112 Pratt Lane Property and getting the improper
Lien removed, with copies of the Affidavits to be served upon Mr.
Kaufman, who may show cause for why sanctions should not be awarded in
that amount; it is further
ORDERED, ADJUDGED, and DECREED that the specific award of
monetary sanctions shall be taken under advisement until further Court
Order.
The court entered an order on September 21 awarding fees of $14,837.49 to Mr. Rice and
$1,682.60 to Ms. Gammeltoft. On March 27, 2018, Appellants filed a motion pursuant to
Tennessee Rule of Civil Procedure 60.02(2) and (5) to set aside the sanctions on the
ground of Mr. Kaufman’s excusable neglect; the court granted the motion “to consider
the arguments [Ms. Kaufman] failed to make prior to the entry of the order on September
25, 2017 as to why he and his client should not be found in violation of Rule 11.02(1) and
(2).”12 On May 15, 2008, the court entered an order reaffirming the August 25, 2017
order awarding sanctions.13 On appeal, Ms. Sallee and Mr. Kaufman assert that
imposition of sanctions was error because “there was a good faith basis for the extension
of existing law regarding the filing of the lien or, in the alternative, . . . the sanctions . . .
12
The file stamp date on the order setting the amount of sanctions is September 21, 2017.
13
In the order, the court addressed and rejected three contentions Appellants raised related to the award
of sanctions: (1) that Rule 11 does not permit a court to award sanctions sua sponte; (2) that sanctions
cannot be awarded on the court’s initiative unless the show cause is issued before the suit is voluntarily
dismissed; and (3) that sanctions could not be awarded against Ms. Sallee pursuant to Rule 11.02(2)
because she was a represented party.
16
[were] assessed contrary to the mandatory provisions of T.R.C.P. 11.03 subsections (2)
and (3).”
The standard of review we apply to this decision was set forth in Brown v.
Shappley:
We review a trial court’s ruling on a Rule 11 motion under an abuse of
discretion standard. Hooker v. Sundquist, 107 S.W.3d 532, 535 (Tenn. Ct.
App. 2002). An abuse of discretion occurs when the decision of the lower
court has no basis in law or fact and is therefore arbitrary, illogical, or
unconscionable. Id. (citing State v. Brown & Williamson Tobacco Corp., 18
S.W.3d 186, 191 (Tenn. 2000)). Our review of Rule 11 decisions is
governed under this deferential standard since the question of whether a
Rule 11 violation has occurred requires the trial court to make highly fact-
intensive determinations regarding the reasonableness of the attorney's
conduct. Id. We review the trial court’s findings of fact with a presumption
of correctness, unless the evidence preponderates against the finding.
Id.; Tenn. R. App. P. 13(d).
290 S.W.3d 197, 200 (Tenn. Ct. App. 2008).
We first address Appellants’ argument that sanctions were not warranted because
they had a good faith basis for filing the lien, i.e., to secure what they considered was a
meritorious quantum meruit claim for legal services rendered by Ms. Sallee to the
decedent during her life.
Rule 11.03(1)(b), permits a court, on its own initiative, to issue an order describing
conduct that appears to violate Rule 11.02 and directing a party to show cause why it has
not violated the rule.14 The August 31, 2017 order gave Appellants notice of the conduct
14
Tennessee Rule of Civil Procedure 11 provides in part pertinent to this appeal:
11.02. Representations to Court
By presenting to the court (whether by signing, filing, submitting, or later advocating) a
pleading, written motion, or other paper, an attorney or unrepresented party is certifying
that to the best of the person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances,--
(1) it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law
or by a nonfrivolous argument for the extension, modification, or reversal of existing law
or the establishment of new law;
17
that the court determined warranted sanctions and allowed them ample time to provide a
response to the show cause order; the September 25 order setting the amount of sanctions
was duly entered, withg no response to the August 31 order being filed on behalf of
Appellants. Six months later, Appellants filed a Rule 60.02 motion to set aside the
September 25 order, which was granted by the trial court; after considering Appellants’
proof as to why sanctions were not warranted, the court reaffirmed the September 25
order.
(3) the allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denial of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on a lack of information or belief.
11.03. Sanctions
If, after notice and a reasonable opportunity to respond, the court determines that
subdivision 11.02 has been violated, the court may, subject to the conditions stated
below, impose an appropriate sanction upon the attorneys, law firms, or parties that have
violated subdivision 11.02 or are responsible for the violation.
(1) How Initiated.
***
(b) On Court's Initiative. On its own initiative, the court may enter an order describing
the specific conduct that appears to violate subdivision 11.02 and directing an attorney,
law firm, or party to show cause why it has not violated subdivision 11.02 with respect
thereto.
(2) Nature of Sanctions; Limitations. A sanction imposed for violation of this rule shall
be limited to what is sufficient to deter repetition of such conduct or comparable conduct
by others similarly situated. Subject to the limitations in subparagraphs (a) and (b), the
sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a
penalty into court, or, if imposed on motion and warranted for effective deterrence, an
order directing payment to the movant of some or all of the reasonable attorneys’ fees
and other expenses incurred as a direct result of the violation.
(a) Monetary sanctions may not be awarded against a represented party for a violation of
subdivision 11.02(2).
(b) Monetary sanctions may not be awarded on the court's initiative unless the court
issues its order to show cause before a voluntary dismissal or settlement of the claims
made by or against the party which is, or whose attorneys are, to be sanctioned.
(3) Order. When imposing sanctions, the court shall describe the conduct determined to
constitute a violation of this rule and explain the basis for the sanction imposed.
Tenn. R. Civ. P. 11.03. Rule 11.03(2)(a) does not preclude the award against Ms. Sallee, inasmuch as she
is a licensed attorney in the State of Tennessee, and subject to the requirements of the Rules of
Professional Conduct, memorialized at Tennessee Supreme Court Rule 8, and since, at various times
herein she was acting pro se.
18
We find no violation of Rule 11 or abuse of the court’s discretion in either making
the initial determination that sanctions were warranted or in the manner in which the
amount of sanctions was set. First, the quantum meruit claim Ms. Sallee asserted was for
services rendered in a life insurance proceeds matter that had nothing to do with the Pratt
Lane property; the insurance matter was not a “right of action” to which the lien
authorized by Tennessee Code Annotated section 23-3-10215 and -10316 would apply.
Second, to the extent Ms. Sallee sought payment for services rendered in representing her
mother in the life insurance matter, she should have done so as a creditor of the estate,
pursuant to Tennessee Code Annotated section 30-2-307.17 The trial court properly held
that there was no legal basis for filing a lien to secure the quantum meruit claim, thereby
requiring the Estate to seek a court order requiring Ms. Sallee to release the lien.
There is likewise no merit to Appellants’ argument that the Rule 11.03(2)(b)
prohibits the award of sanctions because “the dismissal of the lien was voluntary, and it
occurred before the show cause order.” The lien was not a “claim” within the meaning of
Rule 11.03(2)(b)18 and there was no dismissal of the lien, voluntary or involuntary; Ms.
15
Tennessee Code Annotated section 23-3-102 states:
Attorneys and solicitors of record who begin a suit shall have a lien upon the plaintiff’s or
complainant’s right of action from the date of the filing of the suit.
16
Tennessee Code Annotated section 23-3-103 states:
Any attorney or solicitor who is employed to prosecute a suit that has already been
brought in any court of record shall have a lien upon the plaintiff’s right of action from
the date of the attorney’s or solicitor’s employment in the case; provided, that the record
of the case shall first be made to show such employment by notice upon the rule docket
of such court, by a written memorandum filed with the papers in the case or by notice
served upon the defendant in the case.
17
Tennessee Code Annotated section 30-2-307(a)(1) states:
All claims against the estate arising from a debt of the decedent shall be barred unless
filed within the period prescribed in the notice published or posted in accordance with §
30-2-306(b).
18
Appellants conflate the meanings of “claim” and “lien.” Tenn. R. Civ. P. 11.03(2)(b). As this Court
stated in Montpelier v. Moncier:
“Claim” or “claims” is commonly used to describe such an application for relief [within a
lawsuit], and a party is permitted to state as many separate claims or defenses as he or she
has in his or her pleading. . . .
[V]arious rules illustrate this construction of the word “claim” by referring to claim(s) as
a part of a complaint or pleading and not constituting the pleading itself. See Tenn. R.
Civ. P. 8.01 (“a pleading ... shall contain (1) a short and plain statement of the claim
19
Sallee was ordered to release the lien.
Discerning no abuse of discretion in the court’s imposition of sanctions, we now
turn to the amount awarded. The attorneys for the personal representative and the estate
submitted detailed affidavits of the time they dedicated to resolving the issue of the lien
filed against the 112 Pratt Lane Property; the court awarded fees equal to the amount
incurred for getting the order to release the lien. The affidavits of counsel are sufficiently
detailed as to both the work performed and time spent, and Appellants do not cite
evidence that preponderates against the amount awarded.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court in all respects.
RICHARD H. DINKINS, JUDGE
showing that the pleader is entitled to relief”); Tenn. R. Civ. P. 10.02 (“[e]ach claim
founded upon a separate transaction or occurrence ... shall be stated in a separate count ...
whenever a separation facilitates the clear presentation of matters set forth”). See also
Tenn. R. Civ. P. 12.02; 13.01, 13.05, 13.09; 18.01 and 18.02.
No. E2018-00448-COA-R3-CV, 2019 WL 990529, at *5 (Tenn. Ct. App. Feb. 28, 2019) (quoting
McCord v. HCA Health Serv’s. of Tennessee, Inc., No. M2016-00240-COA-R3-CV, 2016 WL 5416334,
at *3, *4 n. 1 (Tenn. Ct. App. Sept. 27, 2016) perm. app. denied (Jan. 19, 2017)). This is not a suit to
recover damages but, rather, a proceeding to administer an estate; any “claim” that Ms. Sallee
has in the proceeding is as creditor or beneficiary of the estate.
20